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. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): (“2016Pet”) Amicus brief 2016: (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

  3. "drug dealers and traffickers need to be locked up". "we cannot afford just to continue to build prisons". "drug abuse is strangling many families and communities". "establishing more treatment and prevention programs will also be priorities". Seems to be what politicians have been saying for at least three decades now. If these are the most original thoughts these two have on the issues of drug trafficking and drug abuse, then we're no closer to solving the problem than we were back in the 90s when crack cocaine was the epidemic. We really need to begin demanding more original thought from those we elect to office. We also need to begin to accept that each of us is part of the solution to a problem that government cannot solve.

  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.