A LaPorte County deputy prosecutor who listened in on privileged communication between defense attorneys and their clients has been suspended from the practice of law in Indiana for at least four years.
The Indiana Supreme Court suspended Robert Neary without automatic reinstatement on Monday, when it handed down an opinion in the disciplinary action In the Matter of: Robert Neary, 46S00-1512-DI-705. The Indiana Supreme Court Disciplinary Commission filed a complaint against Neary in December 2015 after he was alleged to have listened in on a conversation between Brian Taylor, who was being held in custody in connection with a homicide investigation, and his attorney, David Payne. Neary gained access to the confidential conversation by failing to disable audio or video feeds in the room where Taylor and Payne were meeting and watching those feeds in another room.
At some point during the private conversation, Taylor told Payne where a gun allegedly used in the homicide was located, but Neary told police detectives, who were also listening in, not to recover the weapon. The detectives, however, ignored that request and recovered the gun.
Neary did not tell Payne about what had transpired until the police chief learned of the overheard conversation and stressed the importance of sharing that information with Taylor’s counsel. Neary complied and also self-reported his conduct to the commission.
Two years before the Taylor incident, Neary viewed a DVD of an interview between John Larkin and his attorney. Larkin was being held in connection with the shooting death of his wife. The DVD included discussions between Larkin and his attorney during a break in the official interview, which was privileged communication.
Neary watched the entire DVD, including the privileged conversation, before providing a copy to Larkin’s counsel. Neary failed to inform opposing counsel that the break discussion had been recorded, but the trial court judge later ordered the transcript from the DVD and all relevant information to be placed under seal.
Based on these actions, the commission and hearing officer found Neary to be in violation of Indiana Rules of Professional Conduct 4.4(a) and 8.4(d). Those rules pertain to using methods of obtaining evidence that violate the rights of a third person and engaging in conduct prejudicial to the administration of justice, respectively.
The justices agreed, writing in a Monday per curiam opinion that Neary’s actions “caused significant delays and evidentiary hurdles in the prosecutions of Taylor and Larkin, even assuming they still can be prosecuted at all.”
“We share the hearing officer’s view that ‘the egregious nature of respondent’s conduct cannot be overstated’ and warrants a sanction at the upper end of the disciplinary spectrum,” the justices wrote, noting the commission urged disbarment. But considering Neary’s lack of disciplinary history and the fact that he self-reported his conduct in Taylor’s case, the high court concluded “the door should not permanently be closed on Respondent’s legal career… .”
Instead, the justices ordered a suspension of at least four years, beginning Dec. 18, without automatic reinstatement. Neary can petition for reinstatement at the end of the four-year period if he has paid the costs of the proceeding, which are assessed against him, fulfills the duties of a suspended attorney and satisfies the requirements for reinstatement under Admission and Discipline Rule 23(18).