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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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  1. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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