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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. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

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