IBA: Attorneys Beware - Conflicts of Interest and Attempts to Make a Buck

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By Alex E. Gude, Bingham Greenebaum Doll LLP

gude-alex-mug Gude

Attorneys looking to profit from their experiences at trial take note: the principles behind the so-called “Son of Sam” laws, which prohibit criminal defendants from profiting from the publicity of their crimes, may apply to you too, at least during the pendency of a criminal case. That is the conclusion reached by Indiana Court of Appeals in the recent decision of Camm v. State, 957 N.E.2d 205 (Ind. Ct. App. 2011), which involved David Camm, who had twice been tried for the murder of his wife and two children.

The facts of the case are as follows. The elected prosecutor handled Camm’s second trial. At some point during the proceedings, the prosecutor decided to write a book about his experience in the case. Before the jury reached its verdict in the second trial, the prosecutor made contact, via his wife, with a literary agent who eventually helped him find a publisher for his proposed book. The prosecutor entered an agreement with the agent shortly after the verdict, and before sentencing. On March 28, 2006, the trial court sentenced Camm to life without parole.

In June of 2009, the prosecutor entered into an agreement with a publishing company and received an advance. Shortly thereafter, the Indiana Supreme Court reversed Camm’s second conviction. While a petition for rehearing of the decision was pending, the prosecutor sent an email to his publisher expressing concerns regarding the advance, while also noting that he was still “committed to writing the book.” The prosecutor cancelled the writing contract in September of 2009, and returned his advance. On November 30, 2009, the Supreme Court denied the state’s petition for rehearing, and the next day, the prosecutor re-filed the murder charges against Camm.

In response, Camm filed a petition requesting the appointment of a special prosecutor, arguing that the elected prosecutor had a conflict of interest. In reversing the trial court, which denied Camm’s petition, the Court of Appeals noted that the prosecutor’s cancellation of his literary contract prior to the third trial did not eliminate his conflict of interest. As the Court explained: “this is a bell that cannot be unrung. [The prosecutor] signed a contract to author and publish a book about the Camm case prior to Camm’s third retrial, and, in doing so, he permanently compromised his ability to advocate on behalf of the people of the state of Indiana in this trial.” According to the Court, the prosecutor’s decision precluded effective prosecution of Camm, because he provided Camm with an argument he would otherwise not have at trial –namely, that the prosecutor was influenced by his own personal interest when he decided to try the case for a third time.

The prosecutor’s decision to sign the literary contract was not the sole source of his conflict, however. His commitment to writing the book, as expressed in the email to his publisher, and comments made to the media, also created a conflict. As the Court explained: “[The prosecutor] should not have a personal interest in the case separate from his professional role as prosecutor. In other words [he] cannot be both committed to writing a book about the Camm case and serve as a prosecutor.”

The extent to which Camm’s holdings can be applied outside of its factual context are not clear, but they do raise interesting questions. How far does the Court’s prohibition on personal interests in cases extend? Does it preclude a prosecutor from taking on a case when he has a political or publicity interest in its outcome? Similarly, is there a conflict of interest when an attorney tries a case rather than settling it, in part, in order to gain publicity or notoriety? Only time will tell. In the meantime, attorneys should consider the ways in which they can temper their actual or perceived personal interests in the cases they handle for clients.•


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.