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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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  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

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