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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. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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