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Disciplinary Commission overreached, justices agree

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An Ohio attorney who argued his disciplinary case in a rare public forum before the Indiana Supreme Court prevailed as justices said the Indiana Disciplinary Commission’s arguments failed.   

Derek Farmer’s attorney claimed before the court in October that Ohio colleagues who argued on his behalf said that they believed his past and race were being used against him, because Farmer had been cleared in the same matter by Ohio’s attorney discipline authorities.

The Indiana Supreme Court opinion in State of Indiana Ex Rel., Indiana Supreme Court Disciplinary Commission v. Derek A. Farmer, 94S00-1103-MS-165, didn’t broach those arguments, but justices rejected charges the commission brought against Farmer. He had been accused of the unauthorized practice of law, and the commission also charged that he could not have reasonably expected to be authorized to practice.

“The commission has failed to meet its burden of demonstrating that an injunction should issue against Farmer. Accordingly, the court denies the Commission’s verified petition,” the per curiam opinion says. It was signed by all justices except Steven David, who concurred without a separate opinion. “The costs and expenses incurred by the hearing in this matter shall be borne by the Commission,” the court wrote.

Farmer is the only attorney in Ohio admitted to practice after a conviction in connection with a murder. He was convicted as a young accomplice in the 1974 murder of a civil-rights figure and a Dayton police officer. Farmer was 16 at the time and running with an 18-year-old relative who pulled the trigger in both killings after the pair robbed a jewelry store. Farmer served 18 years in prison, earning a college degree, and later completed law school. He was admitted to the Ohio bar in 1999.

“In the present proceeding, a federal judge and an attorney in Ohio who testified regarding Farmer’s good character and competence as an attorney stated that they would have provided an affidavit supporting Farmer’s request for temporary admission in Indiana if he had made one before or after his Ohio suspension,” the court wrote.

“Under these circumstances and in light of the discretion exercised by trial courts in ruling on motions for temporary admission under Admission and Discipline Rule 3(2), the Court concludes that the commission has failed to prove by clear and convincing evidence that, due to the pending disciplinary proceeding in Ohio, Farmer could not have reasonably expected to be authorized” to practice, the court wrote.

The commission also failed to prove that Farmer’s services to an Indiana client seeking post-conviction relief violated the “safe harbor” provision in Rule 5.5(c) that allows attorneys to practice in multistate jurisdictions “on a temporary basis” in some circumstances.

“Here, the charged conduct of Farmer involves occasional visits to Indiana for a single client in a single legal matter, not multiple matters or clients or any systematic or continuous presence in Indiana. Under these circumstances, the court concludes that the Commission has failed to prove by clear and convincing evidence that Farmer’s provision of legal service to (the client) was more than ‘temporary.’”
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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