ILNews

Court split in public defender 'firm' issue

Back to TopCommentsE-mailPrintBookmark and Share

In a disciplinary action released Wednesday by the Indiana Supreme Court, the justices disagreed as to whether two public defenders who worked part time in the same public defender office of Putnam County were "associated in a firm."

James R. Recker was charged by the Indiana Supreme Court Disciplinary Commission for violating Indiana Professional Conduct Rules 1.6(a), 1.8(b), and 1.8(k), which deal with revealing information relating to representation of a client without informed consent and prohibitions that apply to an attorney in one firm apply to all attorneys in the firm.

Recker and Laura Paul worked as part-time public defenders in Putnam County and shared office space provided by the county. Recker was appointed to represent A.B. in a CHINS proceeding, who was sharing a holding cell with X.Y., who Paul was appointed to represent. A.B. also had a private attorney, James Holder, for a criminal case. When Paul learned from the Putnam County prosecutor that her client would offer up some details in A.B.'s criminal case in exchange for a deal, she spoke with Recker about her situation because she hadn't experienced it before and mentioned A.B.'s name but not her client's name. She didn't know Recker was representing A.B.; Recker thought her client was a private client.

Recker then called Holder and told him A.B. was talking about his case. Paul's client was eventually removed from the shared cell and testified at A.B.'s murder trial.

In In the matter of James R. Recker, No. 49S00-0506-DI-302, the majority determined Recker didn't commit the charged attorney misconduct because he and Paul weren't members of a law firm while providing indigent defense services in the county. Because they weren't associated in the same firm, Recker didn't owe a duty to X.Y. when he told Holder the information he learned from Paul. The majority examined the definition of and comments related to "law firm" under the Professional Conduct Rules and its ruling in Matter of Sexson, 613 N.E.2d 841 (Ind. 1993), to support its decision. Although they shared common space, staff, letterhead, and a phone line, Recker and Paul didn't choose that situation as provided by the county and didn't hold themselves out for business to the public at the public defender office location.

The majority noted there is no uniform system of providing indigent defense among Indiana's counties, but under the Putnam County system, they aren't deemed to be members of a firm, "at least for the purpose of the rule that information acquired by one lawyer in a firm is attributed to another," the per curium opinion stated.

Justice Frank Sullivan dissented because he believed the majority employed an "overly technical" and "near-sighted" definition of "firm" and lost sight of the principal interest at stake: the inviolability of client confidences.

Under the majority's opinion, Sullivan argued that if Recker overheard a conversation between Paul and one of her clients, he would have no ethical obligation to keep the information confidential. The justice questioned how the hallmark of trust of the client-lawyer relationship can exist if the lawyer in the next cubicle can reveal that client's secrets simply because the lawyers aren't technically in the same "firm."

Sullivan believed that Recker had an ethical duty to keep confidential the client information disclosed to him by Paul and for that, he violated rules 1.6(a) and 1.8(k).

The Supreme Court expressed no opinion about whether Paul violated her duty to X.Y. because that issue wasn't before the court.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT