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Justices disagree on prosecutor's public reprimand

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The Indiana Supreme Court has publicly reprimanded a lawyer for what happened to his license when he left private practice to become a full-time prosecutor in northwest Indiana, but the disciplinary action has split the state’s justices on whether a more severe punishment was warranted.

Justices ruled Sept. 30 in the disciplinary action of In the Matter of James E. Barce, No. 04S00-0904-DI-139, involving Kentland attorney James E. Barce who served as Newton County’s part-time prosecutor for a decade before being elected full-time in 2005. When he made the switch to full-time and was required to close his private practice, Barce signed an affidavit placing his law license on inactive status, which meant he couldn’t practice law. He signed similar documents in subsequent years, and as a result he paid a reduced annual registration fee.

But in February 2009, an opposing defense attorney on a case Barce was prosecuting pointed out the license inactivity and that prompted him to re-activate his status and self-report what appeared to be a professional conduct violation to the Disciplinary Commission. Barce offered to pay the difference between the reduced fees and he paid the full active status fees for those years he was on inactive status.

The Disciplinary Commission filed charges and a hearing officer found no aggravating factors, but determined a public reprimand was appropriate. Though the Disciplinary Commission pursued a suspension for this “serial violation,” the hearing officer determined Barce’s misconduct was negligent rather than willful and that he’d cooperated, showed remorse, kept up with his CLE requirements, and had a good reputation in the legal community.

In deciding on the punishment, Justices Brent Dickson, Frank Sullivan, and Theodore Boehm agreed to accept the public reprimand recommendation on grounds that Barce violated Ind. Prof. Cond. R. 5.5(a) and 8.4(d).

But Chief Justice Randall T. Shepard dissented in a separate opinion and Justice Robert Rucker joined on grounds that a more severe penalty was warranted in this case.

“As our Disciplinary Commission argues, if a defendant had argued he was not guilty of speeding because he had not bothered to read the speed limit posted on the sign, it is doubtful the Respondent would have found that to be a persuasive argument,” the chief justice wrote.

Chief Justice Shepard wrote that once Barce signed an affidavit under oath declaring he was not engaged in the practice of law, the clerk sent him a card that told him “rather directly that he was an Indiana attorney with an Indiana license, ‘but may not use that license as the basis for engaging in the practice of law.’” But he still practiced law regularly and prosecuted thousands of criminal and civil cases during a four-year period until “he was exposed in the minutes just before a jury trial was to commence,” the chief justice pointed out.

Relying on precedent, Chief Justice Shepard wrote that the court has treated similar situations of gross neglect with a substantial suspension – including the Matter of Baars, 542 N.E.2d 558 (Ind. 1989), in which a lawyer was suspended for 24 months for practicing law for 7 years while swearing that he was not.

“That seems pretty stiff in retrospect, but giving this Respondent a mere reprimand tells everyone the Supreme Court thinks this behavior is a pretty minor matter,” Chief Justice Shepard wrote. “The Commission obviously thinks practicing law without a license is important, and so do I. The Court should suspend Barce for thirty days, and his reinstatement should be conditioned on his paying both the back registration fees and reimbursing the costs of convening the jury that had to be sent home when his violation was brought to light.”

Barce could not be reached today at the number listed with the Indiana Roll of Attorneys, and his attorney Kevin McGoff with Bingham McHale in Indianapolis couldn’t be immediately reached by IL deadline for this story.

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