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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. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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