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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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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