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‘Illegal alien’ remark leads to attorney’s suspension; case involves embattled judge

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Representing a father in a child visitation dispute, a Martinsville lawyer’s letter to opposing counsel alleging the mother was an illegal alien resulted in a 30-day suspension.

The judge who served as the Disciplinary Commission’s hearing officer in attorney Joseph B. Barker’s case separately is facing a suspension request for charges alleging she, too, made unprofessional remarks, among other things. One of the 45 counts against that judge concerns a charge that was she almost a year late with findings in this disciplinary case.

The Indiana Supreme Court on Friday posted an order suspending Barker for 30 days. According to the order, Barker sent the attorney and presiding judge in a divorce case a letter in 2009 that read:

“[Father] told me this week that he has only seen his baby … one day all year. Your client doesn't understand what laws and court orders mean I guess. Probably because she's an illegal alien to begin with.

“I want you to repeat to her in whatever language she understands that we'll be demanding she be put in JAIL for contempt of court.

“I'm filing a copy of this letter with the Court to document the seriousness of this problem.”

Barker violated Rules of Professional Conduct 4.4(a) and 8.4(g), the court ruled.

“Respondent argues that it was legitimate advocacy to connect Mother’s alleged violation of immigration laws with her violation of Father’s court-ordered visitation rights. However, regardless of the frustration Respondent might have felt in the circumstances, we conclude that accusing Mother of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantial purpose other than to embarrass or burden Mother,” Chief Justice Brent Dickson wrote for the court.

The order cited Barker’s lack of disciplinary history as a mitigating factor, but “the Respondent’s misconduct is aggravated by the fact that he has no insight into his misconduct, he has not apologized to Mother, and he has substantial experience in the practice of law. Under these circumstances, the Court concludes that a period of suspension is required.”

Barker’s suspension is effective Oct. 14, and he will be automatically reinstated. Costs of the proceeding are assessed to him.

The verified complaint against Barker was filed in August 2009, and Marion Superior Judge Kimberly Brown was appointed hearing officer a month later. Brown’s findings and recommendations were filed in June of this year.

Brown is the subject of a 45-count complaint from the Judicial Qualifications Commission replete with allegations of conduct that she treated public defenders, clerks’ office staff and some private attorneys in “a rude and discourteous manner and created “a hostile environment for attorneys, court staff, clerks, and other court officials.” Among the most serious charges facing Brown are accusations she wrongly jailed at least nine defendants for 1 to 22 days, among other things.

But one of the counts concerns Barker’s case, noting that disciplinary counsel asked Brown in December 2012 when findings might be submitted to the court. Barker’s hearing had taken place more than seven months earlier.

“On April 3, 2013, another attorney employed with the Disciplinary Commission requested a status conference on the matter, which (Brown) never attended,” according to the charges against her.

An attorney discipline hearing officer is required by rule to file a report with findings and conclusions within 30 days of the conclusion of the hearing, according to the charges against Brown. She “did not issue findings until June 7, 2013, more than thirteen (13) months after the hearing was conducted,” the charges say.





 

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  • yes other states do this too
    yes bryan this is a trend in law. and not only Indiana case, but as the issue of this not being in the course of representation, also look at in matter of Kelley 925 ne2d 1279 about calling somebody gay. OOPS I called somebody gay (which supposedly is not even pejorative anymore) now I may get a reprimand. Another case of excessive rule overreach. I hvent read in matter of thomsen, 837- 1011, but that's about racial bias supposedly. Also there is a Pennsylvania case where a pigeon shooter called a woman animal rights advocate a vulgar name and supposedly that was a basis for 8.4 spanking too. IMPURE THOUGHTS BRYAN! here is a LTE I found online following an editorial about this case. the LTE presents the feminist "POV." http://www.sharkonline.org/index.php/pigeon-shoots/53-pennsylvania/445-lawyer-s-vulgar-slur-towards-women-is-unworthy-of-the-profession
  • John, you meant this case
    In re Campiti , 937 N.E.2d 340 (Ind. 2009) (Lawyer was given a public reprimand for violation of Rule 8.4(g) [national origin and socioeconomic status] after making repeated disparaging remarks that a mother was not a U.S. citizen and was receiving legal services at no charge.)
  • Only in Indiana?
    Where else but Indiana could a private letter between attorneys using that term cause an attorney (not large law firm connected, I would bet) to be benched, the goal no income, for a month? Anyone know of any other state that treats its "officers of the court" in such a manner?
  • incomprehensible
    Maybe its just me but how is this not legit advocacy. Illegal aliens are in a state of perpetual lawbreaking by their presence here. They can be deported. Both their lawbreaking and their risk of deportation have profound effects on personal choices. I hear laments about this all the time on NPR about how much they suffer because of our horrible evil "laws." And yet lawyers are not supposed to take notice of the real impact of this lawbreaker status for their clients best interests? That's not "legit advocacy" even though it's relevant to all the core legal issues a family lawyer has to often handle, and a major factor in all choices that a parent is making? On the one hand we are supposed to be compassionate to illegal aliens and be mindful of their quandry, and then on the other hand we are supposed to ignore their quandary when it is a factor in other lawbreaking behavior. We are supposed to ignore matters of LAW which are obviously relevant and germane even though we are LAWYERS and it is in our clients' interests, because why? Because the CAPOS SAY SO THATS WHY. Because they don't like certain laws, that's why. They think the poor unwashed masses of anti-immigration protesters and congressman are bigots, and they're above it, and they have the power to dictate lawyer speech so they are going to dictate it and use the sledgehammer of 8.4 to scare people. Wow. PS good reporting about the nexus to the Baker problem. PPS Gee this is the kind of thing that gets attention when a crook like Conour gets the kid glove treatment. Wow wow wow.
  • dangerous trend
    it seems that some of our speech-cops in black no longer think they have any difficulties in determining what is "legitimate advocacy" I read a fair discussion in don lundberg's discussion in res gestae june 2010 about this trend. he weighs the impelmentation of the rule which goes back to 2002. Unfortunately he concludes the article with approval of the overbroad use of 8.4g by comparing it to "disapproval by professional peers." Well guess what, the Supremes are not our peers they are ABOVE us. They are the third branch of Indiana government taking our license away because they didn't like the CONTENT of our speech. A lot of good the private citizens who are non-lawyers will have trying to protect their free speech rights in court, if all the lawyers are already castrated from dissent ab-initio. btw in re campiti is 905 ne2d 408 (2009) some of you complacent lawyers out there who never beefed about this or said a word to anybody before, ought to wake up because sooner or later it will be your ox that gets gored.
  • so much for free speech.
    Its another blatant overuse of 8.4 which is wide enough to drive a truck through it. What's next, suspensions for lawyers who fail to use "gender-neutral" English? Preposterous. But-- I'll keep my comments anonymous, since I know that they speech-commissars will come with punishment for me too if they know that I've criticized them. So much for that crazy first amendment thingee! The justices and the phony free speech advocates don't give a damn about free speech unless it's speech they like. Might as well go back to being part of the United Kingdom. Better ruled by tyrants farther away then ones in our backyards.
  • wrong again
    Same result as Campiti. Which was wrong then and wrong now. It is definitely legitimate advocacy in a divorce dispute if one of the parties is an illegal alien. Its totally relevant and touches about every single issue one could imagine from child support to custody to spousal maintenance. This result is naked political correctness and the Emperor has no clothes. The courts are making a laughingstock out of themselves with this. I can hardly believe these Justices who have made so many fine decisions have gone agley on this one.

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  1. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  2. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  3. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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