Delaware County Prosecutor Mark McKinney should be publicly reprimanded for violating four professional conduct rules in his handling of civil forfeiture matters as a private attorney while simultaneously prosecuting those same criminal defendants, according to hearing officer appointed by the Indiana Supreme Court.

But the state’s highest court makes any final decision on whether misconduct occurred and if any sanctions should be imposed, and that now presents a novel situation in itself that creates even more question about what happens next.

The hearing officer on this disciplinary action is Boone Circuit Judge Steven H. David, who is the state’s newest justice who takes the bench in mid-October. Reviewing and recommending sanctions on this case Sept. 29 culminates his role on a case that began long before he thought of applying for the high court, but it’s one of his final actions on the bench before becoming a justice and it means he’ll likely not participate in the final disciplinary decision.

With the Indiana Supreme Court last year rejecting an agreement for a 90-day suspension on the grounds it was too lenient, and only four justices considering the matter once it gets to the court, the final result on this longstanding dispute is anything but clear.

Before becoming prosecutor in January 2007, McKinney was a deputy prosecutor beginning in 1995 and worked with the now-disassembled Muncie-Delaware Drug Task Force. He was personally involved as a deputy prosecutor in drug investigations on many of the resulting criminal cases, and from 2000 to 2007 he also received thousands of dollars in compensation from private forfeiture settlements in his role as a private attorney from those criminal defendants being prosecuted. This Disciplinary Commission action came in 2009, following a previous one back in 1999 where no action was taken.

After a new mayor launched an inquiry into this in 2008, McKinney ultimately stopped the practice.

A special prosecutor last year cleared McKinney of any criminal wrongdoing in his handling of drug forfeiture cases, and in his findings Judge David as hearing officer clearly said all money was accounted for and that there’s no evidence McKinney ever agreed to soften charges or reduce plea agreements to defendants in exchange for forfeiture money or action.

But Judge David found the Disciplinary Commission proved that the prosecutor violated the four Indiana Rules of Professional Conduct - 1.7(b), 1.7(a)(2), 1.8(I), and 8.4(d). The allegations are that his profiting in drug forfeiture cases – his receiving 25 percent of the money forfeited by or seized from drug defendants per fee agreements -- impeded the state's criminal cases that he was involved in prosecuting.

“From any non-lawyers perspective, it is reasonable to conclude that the ethical propriety of the civil forfeiture methodology employed in Delaware County was clearly in question almost from its inception,” Judge David wrote in his report, in which found both mitigators and aggravators.

He found as mitigators the lack of any quid pro quo, and that McKinney has no prior disciplinary history and has held leadership roles in the Indiana State Bar Association and Indiana Continuing Legal Education Foundation’s governing board, as well as in several other community organizations. He also determined the significant decade-long lapse in investigating and prosecuting this between 1999 and 2008 was a mitigating factor. But aggravators are that McKinney never investigated this issue but essentially swept it under the rug for so long.

“He was either convinced he was right and was not worried about the concerns of others or he failed to understand and appreciate and/or acknowledge the Indiana Rules of Professional Responsibility,” Judge David wrote. “Had he acted more pro-actively, the practice complained of would have ended long before it did.”

In recommending a penalty for the state justices to consider, Judge David wrote that a public reprimand is warranted. He also said, “In addition, it is also recommended that the practice that was common in Delaware County, as evidenced in this matter, be soundly denounced and that some entity (mostly likely IPAC) undertake efforts (to the extent IPAC has not already taken the lead on this matter) to insure that this practice is not occurring anywhere else.”

Both sides now have a chance to file briefs with the Supreme Court to review the matter entirely or to focus on the sanction, which may be an issue since the court last year rejected an agreement between both sides that called for a 90-day suspension. If the court finds any misconduct occurred and any sanction is necessary, it will be up to those participating justices to determine what the penalty should be.