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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. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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