Ohio attorney Derek Farmer watched in silence Oct. 24 as opposing lawyers described him to the Indiana Supreme Court as two starkly different people. Accused of the unauthorized practice of law in Indiana, he had asked for this.
The usually confidential proceedings of the Indiana Supreme Court Disciplinary Commission were on full display in this case, “the type of which we rarely see in this court,” Chief Justice Brent Dickson acknowledged at the outset of oral arguments granted at Farmer’s request in State of Indiana ex rel Indiana Supreme Court Disciplinary Commission v. Derek Farmer, 94S00-1103-MS-165.
Little is common about the matter or about Farmer. He’s courted controversy since being admitted to practice law in Ohio. He was convicted as a young accomplice in the 1974 murder of a civil-rights figure and a Dayton police officer. Farmer was 16 at the time and running with an 18-year-old relative who pulled the trigger in both killings after the pair robbed a jewelry store.
Farmer, who deferred comment to his attorney, Ice Miller LLP partner Mary Nold Larimore, used his 18 years in prison to study, and he committed to turning his life around. In 1999, he became the only attorney in Ohio admitted after a conviction in connection with a murder.
Before the Supreme Court, Larimore questioned why Indiana was trying to sanction Farmer for the same alleged violation that Ohio’s attorney discipline agency declined to pursue: accusations that he engaged in the unauthorized practice of law. “Indiana should respect the process in Ohio,” she said. The disciplinary commission began its investigation in March 2011.
Larimore said Farmer had been vouched for by prominent Ohio legal figures who attested to the quality of his work. Character testimony on his behalf was given to the Indiana Disciplinary Commission by Walter Herbert Rice, senior judge in the U.S. District Court for the Southern District of Ohio in Dayton; and by Dayton attorney David C. Greer.
“(Greer’s) belief is that many of the – I believe he called them ‘tin cans’ – that had been attached to Derek over the years are indeed as a consequence of his past and as a consequence of his race,” Larimore argued to the justices.
In a phone interview, Greer acknowledged saying as much to the commission. “I can’t think of any other legitimate reason for (Farmer’s case) to move forward,” he said.
‘Safe harbor’ at issue
Farmer is accused of violating Rule of Professional Conduct 5.5 that requires out-of-state attorneys to register in Indiana to practice in the state. At issue is what constitutes the practice of law and whether the location of that practice makes a difference.
“He has engaged in the unauthorized practice of law by representing an Indiana inmate on a post-conviction relief matter in Delaware County for a period of three to four years,” disciplinary commission attorney Angie Ordway told the justices in seeking an injunction against Farmer.
Ordway made the state’s case that Farmer represented convicted murderer John Ivy on a post-conviction relief matter beginning in 2002 without ever registering. Farmer reviewed Ivy’s case but never was retained and never filed a pleading or entered an appearance, according to evidence.
Justice Robert Rucker pressed Ordway. “The fact he interviewed an inmate, interviewed witnesses, interviewed them in Indiana, those are the unauthorized practice of law?”
“He’s trying to use the ‘safe-harbor’ provision to practice for three years without ever applying,” Ordway subsequently argued.
The safe-harbor provision in Rule 5.5(c) allows attorneys to practice in multistate jurisdictions “on a temporary basis” in some circumstances.
Dickson used the hypothetical case of an out-of-state attorney doing extensive background work on an Indiana case in which there is at least a tacit understanding that the attorney would represent the client in the future. “It would be difficult for me to say that’s not practicing law in the state of Indiana,” he said to Larimore.
“The agreement was to do post-conviction work,” she said. “What (Rule 5.5) says you may do is exactly what he did here – interview clients, conduct an investigation.”
She argued that “temporary” may apply to a matter that covers a number of years, and should be read as a limited practice in a state.
Intent to practice
Farmer’s past also includes a run-in with Ohio’s attorney discipline system.
He was suspended in 2006, after most of his involvement with Ivy had concluded, when the Ohio Supreme Court found that he was overpaid for doing minimal work for two convicted murderers seeking post-conviction relief, and that he failed to refund unearned fees. Farmer was reinstated in 2007. Larimore said Farmer notified Ivy and his other clients that he had been suspended.
Along with failing to register, Indiana also has charged that Farmer violated Rule 5.5 by failing to disclose his suspension to the state when he failed to apply for pro hac vice admission. He appears to have done little or nothing on Ivy’s case during the time he was suspended, but he apparently had made arrangements to drive to Indiana to interview a witness during his suspension before deciding otherwise.
“The Disciplinary Commission stipulated he did not travel to Indiana during the period of suspension,” Larimore said. “Before the Indiana Supreme Court, they’re trying to amend the charge and say he got in a car and intended in Ohio to come to Indiana. He never left the state. If there’s an issue, it’s an Ohio issue, and it’s their belief he meets Rule 5.5.” She said the rules in both states are identical.
Ordway said, “Simply working on an Indiana case is a practice of law in Indiana, regardless of where he’s located.”
During oral arguments, Dickson admonished the commission for the manner in which it had attempted to limit evidence in Farmer’s confidential case.
“Why file a motion to strike?” he asked Ordway.
“I’m particularly troubled because it’s done by our disciplinary commission, which is supposed to set the example for civil practice,” Dickson said. “It seems to be Exhibit A for questionable civility.”
Ordway responded that she believed it was the only way to object to a particular pleading.
Justice Mark Massa asked Larimore and Ordway if the court would be setting bad precedent if it granted the state’s request for an injunction against Farmer. He wondered whether it might have a chilling effect on groups such as the Innocence Project, for instance, that investigate cases that require voluminous research that might be conducted by attorneys from other states.
“I think it would be a significantly limiting factor,” Larimore said. “I think when Ohio says that (Farmer) meets Rule 5.5, that there should be some comity there.”
Ordway disagreed. “This is not a case with far-reaching consequences,” she said. “Most lawyers don’t have disciplinary issues.” Those who do should disclose it as the admission rules require, she said, “and let a trial court decide. Don’t subvert that process and never apply.”
She also said Ohio’s disclosure requirements differ from Indiana’s, and that the Indiana Supreme Court has jurisdiction over attorney discipline. “The Ohio letter (clearing Farmer) is inconsequential,” she said, adding that support for Farmer from fellow Ohioans carries little weight.
“There’s nothing in our application rules about filing affidavits from people who think you do a good job,” she said.
Greer, the Ohio attorney who testified for Farmer before the commission, said he’s known Farmer since he graduated law school. “My motivation to testify on his behalf was in hopes of seeing fairness and justice dispensed in the state of Indiana,” he said.
Disciplinary Commission Executive Director G. Michael Witte said Farmer’s case is the first attorney disciplinary matter granted oral argument during his tenure dating to June 2010. He said he could not comment about the matter prior to a decision from the Supreme Court.•