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Court split in public defender 'firm' issue

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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.

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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