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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. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  2. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  3. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  4. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  5. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

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