An Indianapolis attorney who hired a convicted killer to persuade a defendant accused of murder to ditch a public defender and retain him has been suspended for three years for incompetent client representation and lying to the disciplinary commission. A dissenting justice, however, would have disbarred the attorney.
Brent Welke of the Welke Law Firm on North High School Road will begin his three-year suspension without automatic reinstatement Oct. 22. But Justice Steven David believed disbarment was warranted in In the Matter of Brent Welke, 49S00-1707-DI-472.
According to a Tuesday per curiam opinion, Welke’s current ethical trouble began in 2010, when a public defender was negotiating a plea deal that would have allowed a murder defendant to plead guilty to voluntary manslaughter and serve no more than 30 years. A man named Joseph Everroad, however, told the defendant the public defender would sell him out.
Everroad was Welke’s nonlawyer assistant, and in a footnote, the Indiana Supreme Court said Everroad is also a convicted murderer Welke hired. Everroad was convicted of the 1985 Columbus slaying of Wesley Tichenor and sentenced to 60 years in prison. He was released in 2010, according to Indiana Department of Correction records.
Everroad “ingratiated himself” with the defendant’s family, and together he and Welke convinced the defendant that Welke could successfully pursue a self-defense argument, which the public defender had believed would not be successful, or negotiate a better plea deal.
The defendant’s family hired Welke with a $6,000 retainer, $1,000 of which was earmarked for an interpreter. However, Welke never hired the interpreter despite a language barrier with his client and, in addition to his limited experience with major felonies, Welke had never handled a murder case.
Everroad performed most of the work on the case, including meeting with the defendant. At one of these meetings, the nonlawyer assistant brought an unpaid and untrained woman in need of community service credit to serve as an interpreter and assure the client he had a strong self-defense case.
“Everroad did not bring an interpreter to other meetings with Client,” the per curiam opinion says. “Everroad explained the purpose of these meetings was simply to ‘just keep [Client] happy so [Respondent] could get the rest of his money out of the client’ and added ‘we didn’t even talk about the case. We were talking about other things. Cars – things like that.’”
Then, shortly before the murder trial was set to begin, Welke viewed post-mortem photos of the victim for the first time and believed a self-defense or voluntary manslaughter strategy would not work. He tried to accept a manslaughter plea with a 40-year sentence without speaking to his client, but the court sent the matter to trial after the client complained.
The trial began in April 2011, but Welke was not prepared and did not have a defense interpreter available to communicate with the defendant. Instead, during a recess, Welke used his client’s friend to communicate the most recent plea deal — murder with a fixed term of 45 years — and the client accepted.
In a footnote, the court said the client’s plea was vacated in post-conviction proceedings for ineffective assistance of counsel and an unknowing, unintelligent and involuntary plea. But after a retrial in 2016, the client was convicted and sentenced to 55 years.
In another footnote, the court said that after Welke’s representation of the client ended, Everroad robbed a bank at gunpoint and was convicted and sentenced to 20 years. His conviction was affirmed in 2013.
As Welke’s conduct was being investigated by the Indiana Supreme Court Disciplinary Commission, the attorney falsely told the commission that his client had been fluent in English and that he had visited the client multiple times while he was in jail. The commission ultimately charged Welke with six violations of Indiana Rules of Professional Conduct, including:
- Rule 1.1
- Rule 1.3
- Rules 1.4(a)(2) and (b)
- Rule 5.3(b)
- Rule 8.1(a)
Justices likewise found Welke guilty of those violations and rejected each of his three challenges to the hearing officer’s findings of fact. Specifically, Welke first challenged the finding that, had the client continued with the public defender’s representation, he would have been convicted of voluntary manslaughter and sentenced to 30 years.
“Respondent correctly observes that this outcome had not yet reached the point of formal acceptance by the parties and the trial court, and he points to earlier and subsequent offers made by the State for a 40-year sentence, but Respondent’s argument misses the forest for the trees,” the per curiam opinion states. “Not only does the evidence clearly reflect a 30-year sentence had been placed on the bargaining table by the State and was reasonably within reach for Client immediately prior to the change in representation, but Respondent’s attempt to manufacture uncertainty on this point glosses over the fact that either of these case outcomes — 30 or 40 years for voluntary manslaughter — would have been better for Client than the outcome obtained through Respondent’s woefully inadequate representation.”
As to Welke’s challenge of the finding that he had not prepared for voir dire or the examination of witnesses, the court said Welke contradicted himself and “admits having failed to provide Client with competent and diligent representation.” And as to the argument that the hearing officer should have given more weight to the testimony of the client’s former supervisor who said the client had a better English-language proficiency than indicated, Welke “concedes that communicating with a supervisor of a kitchen staff and communicating about legal matters are two very different things … .”
Then, noting that this case is Welke’s fourth disciplinary case, the court said “(t)he instant case — involving what the hearing officer aptly described as a ‘bait and switch’ representation — is by far the most egregious of Respondent’s four disciplinary cases.”
“In the end, switching from the public defender to Respondent earned Client a lighter wallet, comprehensively shoddier legal representation, weakened bargaining power, the inability to meaningfully participate in his own defense, and ultimately a higher-level conviction and several more years in prison than he otherwise would have received,” the court wrote. “Whether measured in terms of process or outcome, the prejudice suffered by Client as a result of Respondent’s misconduct was severe.”
Welke is not permitted to undertake any new legal matters in the time leading up to his Oct. 22 suspension date. The costs of the proceeding are assessed against him.
David, who dissented only as to the sanction, did not write a separate opinion.