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Disciplinary rulings explore 'knowing' standard

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In one courtroom, a criminal defense attorney cites an appellate case while representing his client, but it turns out that decision he’s relying on had been overturned and vacated by the Indiana Supreme Court. His citation mistake snowballs into an attorney misconduct charge against him for knowingly providing false information to a court.

Another attorney in a different county signs a deferral agreement that contains false information about his client’s criminal record, but the veteran attorney who is a prosecutor himself says that he hadn’t read the document before signing it and therefore didn’t knowingly provide false information.

Both cases involve identical issues about the standard that exists for holding lawyers accountable for court statements or signed documents on behalf of their client. But the Indiana Supreme Court decided the pair of disciplinary actions differently, one in favor of the respondent and the other against, and in doing so left what some call a glaring gap in how attorneys interpret the rules on this type of conduct.
 

Lundberg Don Lundberg

“It’s potentially challenging to square those two cases with each other,” said attorney Don Lundberg, former executive secretary of the Disciplinary Commission for 18 years until the end of 2009 when he became a general counsel and ethics attorney at Barnes & Thornburg. “What difference is there between a lawyer’s duty to read an agreement before he signs it, and to update caselaw before he cites it to a court? These two cases are difficult to reconcile.”

The lawyers who faced disciplinary charges and their attorneys declined to discuss the case specifics or generalities on the issues involved, so accounts of what happened come from the briefs, orders, and rulings that are public record and kept in the appellate clerk’s office in Indianapolis.

In the case, In the Matter of Jack Rogers, No. 41S00-0812-DI-644, the justices found in favor of the Franklin attorney charged with violating Professional Conduct Rule 3.3(a)(1) that prohibits lawyers from knowingly making a false statement of law to a tribunal and/or failing to correct a false statement of law previously made to the tribunal by that lawyer.

Practicing since May 1959, Rogers is a former trial judge who was the first to preside over Johnson Superior 1. Since leaving the bench, he’s been handling defense work, and he has had no prior disciplinary actions against him.

At the time of the incident in 2006 and 2007, the attorney in his upper-70s was rep-resenting a man facing several counts of animal neglect and failure to properly dispose of four horse carcasses. Those charges had stemmed from a warrantless police entry onto the man’s farmland and a seizure of property there, the record says. At a suppression hearing before Bartholomew Circuit Judge Stephen R. Heimann in early 2007, Rogers cited the case of Trimble v. State, 816 N.E.2d 83 (Ind. App. 2004), that the Court of Appeals had decided on a similar issue involving doghouses being in public view. The Supreme Court had accepted and vacated that ruling, and the deputy prosecutor at the time mentioned this in court and had the record corrected immediately. But Rogers didn’t correct his citation and said the part he was referring to was largely fact-sensitive and open to interpretation, and the judge later filed a grievance against the attorney.

The record states that Rogers doesn’t use a computer in his practice, and relies on a paralegal to research and find caselaw for the cases he handles. In this particular situation, the record shows that neither Rogers nor his paralegal checked the citations.

Marion Superior Master Commissioner Kenneth Johnson served as hearing officer in this disciplinary case initiated in 2008, and he determined that no conduct violation had occurred based on the nuanced rulings in the Trimble appeals that had multiple components.

“Although Rogers is guilty of shoddy lawyering, when he cited Trimble I… he was not aware that (it) had been overturned,” Commissioner Johnson wrote in his March report, noting that Rogers was unaware about what the Supreme Court had done in overturning the initial Trimble ruling. “Rogers’ response and demeanor, as observed by this hearing officer, leads unequivocally to the conclusion that Rogers’ testimony was believable and that he was a credible witness on this critical issue.”

Disciplinary Commission attorney Seth Pruden said the hearing officer specifically asked the justices to find in Rogers’ favor, and the commission chose not to challenge his findings or recommendation. Pruden said that charges came mostly because there was an implication that Rogers knew the case had been overturned but cited it anyhow and implied he’d read it.

“The implication was that he’d read the case, and therefore his citing of it was dishonest,” Pruden said. “But nothing is cookie-cutter in this case and we apparently didn’t convince the court of that knowledge.”

Rogers couldn’t be reached to comment on the case, but his attorney Kevin McGoff at Bingham McHale said the client wasn’t willing to speak about it.

That case is only part of the picture, though. It turned out differently when compared to another “knowing standard” case, In the Matter of Thomas J. Broderick, No. 48S00-0810-DI-564, which involved conduct from nearly a decade ago by the longtime attorney who’s since become the elected Madison County prosecutor.

Before becoming prosecutor, Broderick was deputy prosecutor in 2001 and represented his then-19-year-old son on a battery charge in Florida, and arranged for a prosecution deferral there. Two years later, his son was arrested in Delaware County on drunk driving charges and Broderick again represented his son and arranged for a deferral. When meeting with the program administrator to review terms of an agreement, Broderick signed without reading a three-page document that said in part that his son had no prior arrests. Instead, he relied on the administrator’s summary and his familiarity with deferral agreements from his experience in the Madison County Prosecutor’s Office, the record shows.

When it was later discovered that the agreement contained false information, Broderick was eventually charged by the Disciplinary Commission with violating two professional conduct rules – Rule 4.1(a) that prohibits knowingly making a false statement of material fact to a third person in the course of representing a client, and Rule 8.4(d) about engaging in conduct considered prejudicial to the administration of justice.

The state commission pushed for a 30-day suspension, but hearing officer and Bartholomew Circuit Judge Kenneth Todd recommended a public reprimand after finding misconduct. He didn’t find any aggravating factors, but determined mitigators were that in his three decades of practicing Broderick had no other disciplinary history and had a stellar reputation, and that this was a father-son issue that complicated the lawyer-client issue. In the two-page order recently, the justices agreed and issued that penalty.

Writing that the term “knowingly” denotes actual knowledge of the fact in question according to the conduct rules, and saying that Broderick didn’t actually know the agreement contained a false statement, the justices agreed with commission argument that “an intentional choice to remain ignorant of a likely falsehood in a document can rise to a level of a ‘knowing’ misrepresentation.”

“Respondent, an experienced lawyer who was well aware of the relevance of a defendant’s prior record in a criminal case and who knew his son’s Florida arrest had not been disclosed, chose not to read a short document containing the essential terms of his son’s probation,” the court wrote. “Respondent therefore knew that he didn’t know what representations he was making. He was responsible for any errors.”

Broderick’s Indianapolis attorney, Jim Voyles, declined to speak specifically or generally about this case and its impacts and said Broderick wasn’t willing to discuss the case. But he acknowledged thatboth cases are difficult to understand when held up together.

In analyzing the Broderick ruling, the former disciplinarychief Lundberg – who had started the prosecution of this case – described it as a groundbreaking one in that it’s the first attorney discipline decision to say that knowing conduct can be found in absence of actual knowledge. The idea of intentional ignorance being tantamount to knowing conduct is a recognized legal concept in other settings, but it’s not terribly well developed in Indiana disciplinary cases, Lundberg said.

“When you’re signing something as a lawyer, there’s pretty broad consensus that (if) they should make the choice not to (read it), you take on a risk that there’s something in there that’s false,” Lundberg said. “It’s universally accepted to hold that attorney accountable, but there’s a whole different standard of proof when you’re talking about the mental state of someone and what they knew.”

However, it’s tough to know where the line short of misconduct falls because of the Rogers decision and the fact that it wasn’t argued more fully before the Supreme Court on the knowing standard, Lundberg said. It’s hard to know what might happen in another case like Rogers’, where the hearing officer finds misconduct and the case is more fully developed to the justices, he said.

Lundberg said this Broderick ruling and knowing conduct standard could have potential ramifications on many other types of disciplinary cases, such as those accused of mishandling client trust accounts. He recalled actions where attorneys under investigation on those types of cases have said they didn’t know there were inadequate funds in the IOLTA account to cover what was supposed to be held for a client. Now, the Broderick decision could be extended to that setting, Lundberg said.

As to the practical guidance attorneys can take from these cases, most agree that some commonplace methods can help ensure these types of disciplinary issues don’t arise. Indianapolis attorney and law professor Joel Schumm said that attorneys using WestLaw or KeyCite to check cites can help eliminate the Rogers scenario, while attorneys should always read whatever they or a client may be signing – particularly in cases involving family or friends.

The hearing officer saved Rogers, but in the future Indiana may see a lawyer’s “intentional choice to remain ignorant” of transfer details considered to be an ethical violation and pursued more regularly, Schumm said.

“I hope lawyers aspire to do more than the minimum required under the professional conduct rules,” he said. “I stress to my first-year students the importance of their reputation with judges and other lawyers, and that means relying on a vacated appellate opinion is poor advocacy, even if it may not be an ethical violation.”•

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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