Thursday, March 12, 2009
The Indiana Supreme Court held yesterday that a lawyer did not engage in misconduct charged by its Disciplinary Commission. The issue was whether the charged lawyer and another lawyer ("Paul") were "associated in a firm" for purposes of imputed conflicts. Both lawyers handle indigent defense cases in a county that has no centralized public defender office. Office space for appointed lawyers is in an old courthouse law library that provides little in the way of confidentiality protections.
The facts are a bit complex, but it appears that the charged attorney learned from attorney Paul (acting as an appointed public defender) of a conversation between Paul and her client that implicated the charged lawyer's client in a murder. As a result, he contacted the prosecutor and had Paul's client (i.e. the snitch) removed from his client's cell. He also gave the information to his client's retained lawyer. Eventually, Paul's client testified at trial and the charged lawyer's client was convicted of murder. The lawyer was charged with violating his duty of confidentiality and using a client's information to the client's disadvantage based on a theory that he and Paul were associated lawyers.
The court agreed with a hearing officer that there were no ethical violations. The court concluded that the hearing officer had properly found that the two appointed defenders were not in the same firm as a result of the library "office sharing" arrangement: "Paul gave Respondent information about someone, who turned out to be [Paul's client], who was acting against his client'[s] interests. Because [Paul's client] was not his client, [he] did not violate any of the cited provisions in passing on the information he received to [his client's] other attorney." The court did not express a view about the ethical implications of Paul's disclosures.
A dissent would find the public defender arrangement in the county to be a firm: "I believe that the Court employs an overly technical, indeed, near-sighted definition of 'firm' and in doing so loses sight of the principal interest at stake here: the inviolability of client confidences." (Mike Frisch)