Tuesday, May 4, 2021

Rule 4.2 Violation Found

The Indiana Supreme Court sustained a finding of a Rule 4.2 violation and imposed a public reprimand on these facts 

Respondent represented “Husband” in ongoing post-dissolution litigation involving Husband’s marriage to “First Wife.” In August 2018, a domestic dispute between Husband and “Second Wife” led to criminal charges against Second Wife and Husband’s petition for marital dissolution from Second Wife. Respondent also represented Husband in this dissolution action.

Counsel for First Wife issued notice of a deposition of Second Wife. Respondent knew Second Wife was represented by counsel in the dissolution case and in the criminal case; however, neither Respondent nor First Wife’s counsel informed either of Second Wife’s attorneys of the deposition. At the deposition Respondent and First Wife’s counsel elicited incriminating testimony from Second Wife and testimony about subjects relevant to the dissolution case, and Respondent later contacted the prosecutor and provided her with a copy of Second Wife’s deposition.

Respondent's contentions

Respondent argues that the deposition was conducted in the post-dissolution case involving Husband and First Wife, that Second Wife was not a party to that case, and that Second Wife was not being represented by counsel in that case. However, Rule 4.2 protects “a person” and not just a party. Moreover, all three underlying cases involved overlapping subject matter, and Second Wife was a party to the other two cases. By her own admission Respondent knew in advance that the deposition likely would touch upon subject matter relevant to the dissolution case and the criminal case (see Tr. at 166-67), and it is undisputed that the questioning of Second Wife at the deposition in fact did touch upon such subjects. Respondent also admitted that use of the deposition was not limited to the proceeding between Husband and First Wife but could also be used against Second Wife in the dissolution proceeding between her and Husband. (Id. at 176).

Nonetheless, Respondent argues that “the matter” referenced in Rule 4.2 should be read narrowly to mean the specific proceeding in which the deposition was taken rather than the subject matter of the representation. Respondent’s interpretation finds no direct support in the text of the Rule itself, which earlier references “the subject of the representation,” or the commentary to the Rule. Respondent’s interpretation also runs directly contrary to the purpose of the Rule, which we agree with the Commission is aimed at protection of the rights of a represented person with respect to the subject of the representation and not merely the protection afforded in any given proceeding. See Matter of Baker, 758 N.E.2d 56, 58 (Ind. 2001) (citing “the need to prevent lawyers from taking advantage of laypersons and to preserve the integrity of the lawyer client relationship”). This need is equally important whether the representation involves the same proceeding, a different proceeding, multiple proceedings, or no proceeding at all.

Finally, Respondent suggests that her questioning of Second Wife at the deposition was authorized by law because Respondent had a duty to protect Husband’s interests at the deposition noticed by First Wife’s counsel. But we agree with the hearing officer’s conclusion that this argument presents a false choice. “Respondent could have protected the rights of her client without disrespecting the rights of a third person by simply informing [Second Wife’s] counsel that a deposition had been scheduled.” (Hearing Officer’s Report at 17).

For these reasons, the Court finds that Respondent violated Professional Conduct Rule 4.2 as charged.

(Mike Frisch)


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