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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. 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.

  5. 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.

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