ATTORNEYS FOR THE RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Kevin P. McGoff DISCIPLINARY COMMISSION
James J. Bell G. Michael Witte, Executive Secretary
Indianapolis, Indiana David B. Hughes, Staff Attorney
Indianapolis, Indiana
______________________________________________________________________________
FILED
In the Jan 12 2012, 3:21 pm
Indiana Supreme Court CLERK
of the supreme court,
court of appeals and
tax court
_________________________________
No. 30S00-0911-DI-535
IN THE MATTER OF:
NANCY J. FLATT-MOORE,
Respondent.
_________________________________
Attorney Discipline Action
Hearing Officer Karen M. Love
_________________________________
January 12, 2012
Per Curiam.
We find that Respondent, Nancy J. Flatt-Moore, engaged in attorney misconduct by
surrendering her prosecutorial discretion in plea negotiations entirely to the pecuniary demands
of the victim of the crime. For this misconduct, we find that Respondent should receive a public
reprimand.
This matter is before the Court on the report of the hearing officer appointed by this
Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified
Complaint for Disciplinary Action," and on the post-hearing briefing by the parties.
Respondent's 1998 admission to this state's bar subjects her to this Court's disciplinary
jurisdiction. See IND. CONST. art. 7, § 4.
Background
Findings of Fact. The Hearing Officer filed her "Hearing Officer's Report," which
contained her proposed findings of fact, on April 21, 2011. Concluding that these proposed
findings are supported by the evidence, we accept them as summarized below.
In April 2006, "JH" ordered agricultural products from "Big Rivers," paying with three
checks totaling $68,956.91, which were all dishonored for insufficient funds. Big Rivers later
claimed that JH owed Big Rivers $11,934 in addition to the amount of the three checks, asserting
that it had made a billing error by under-pricing one of the items sold to JH. On July 26, 2006,
an information was filed against JH based on the three dishonored checks, charging JH with
Class C felony Check Fraud under Ind. Code § 35-43-5-12.1
A newly elected prosecutor for Hancock County, Dean Dobbins ("Dobbins") took office
in January 2007. Jerry Bean ("Bean") served as Chief Deputy. In early 2007, Respondent joined
the prosecutor's office as a deputy prosecutor and was assigned to prosecute the JH case.
Dobbins' campaign ads stated that Dobbins would have a policy of police and victim
approval of felony plea agreements. Respondent testified that the prosecutor's policy required
the approval of law enforcement and the victim before the office would agree to plea agreements.
Based on Dobbins' testimony, however, the hearing officer found that the policy of the
prosecutor's office did not include giving the victim of a property crime the right to dictate the
terms of restitution as a pre-condition to his office agreeing to a plea.
In May 2007, after communicating with an attorney representing Big Rivers regarding its
monetary demands, Respondent offered a plea agreement under which JH would plead guilty to
1
Check Fraud is a generally a Class D felony, but it is a Class C felony if the aggregate amount of property obtained
is at least $25,000.
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Class D felony Check Fraud but would be convicted and sentenced as a Class A misdemeanor
pursuant to Ind. Code § 35-50-2-7,2 on the condition that Respondent agree to whatever terms
and amounts Big Rivers was demanding ("First Plea Offer").
Big Rivers demanded that JH pay Big Rivers $108,501.60 on or before August 1, 2007,
which was nearly $40,000 more than the principal amount of the three dishonored checks. The
difference consisted of (1) Big Rivers' alleged billing error of nearly $12,000; (2) $9,500 in
attorneys' fees; and (3) over $18,000 in interest, calculated at 18% interest per annum. JH
objected to these amounts as excessive and requested that the matter of the amount of restitution
be decided by the judge. Big Rivers would not agree to that, and Respondent likewise refused to
agree, telling defense counsel: "I don't have authority to make an offer that the victim doesn't
agree to. You're trying to sell the wrong person. Go sell Big Rivers. If they agree, I don't care
what it is."
JH decided to take the First Plea Offer because it the only way he could resolve the
matter on a misdemeanor basis short of trial. When questioned by the judge, JH stated that he
had entered into the plea agreement as a free and voluntary act without force or threats. JH,
however, did not pay the full amount of $108,501.60 by the due date, and Respondent had the
plea agreement withdrawn. By late November 2007, JH had paid Big Rivers the principal
amount of the three dishonored checks, plus 8% interest, for a total of $76,908.08.
Respondent sent a fax to counsel for JH, saying that counsel for Big Rivers wanted the
18% interest to continue until all items were paid in full. On November 29, 2007, Respondent
faxed a new plea offer ("Second Plea Offer") to counsel for JH. The Second Plea Offer stated:
I am making an offer that would conclude the criminal case. It would leave any
additional civil issues for Mr. [JH] and Big Rivers to determine between
themselves, by whatever means, at a later date and without intervention of the
criminal courts. In exchange for a plea of guilty to the Class D felony lesser
included, the State would agree to the following sentence: 18 months at the
2
This statute provides that, in certain circumstances, if a person has committed a Class D felony, "the court may
enter judgment of conviction of a Class A misdemeanor and sentence accordingly."
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[Indiana Department of Correction], all suspended, with Defendant retaining the
right to petition for AMS [i.e., alternative misdemeanor sentencing] after
successful completion of probation. Terms of probation include repayment as
restitution of the face value of the dishonored checks, plus 8% interest from the
date of the issuance of the checks until the full face value has been paid. It is my
understanding the restitution terms I propose on the criminal case have already
been met. It is not a term of probation, nor a requirement for consideration of
AMS sentencing, that your client pay any claims made by Big Rivers as to the
civil aspects of the case, as those issues are outside the consideration of the
criminal case. . . . .
Thus, the Second Plea Offer, which was approved by either Dobbins or Bean, did not
depend on JH's concession to Big Rivers' demands for additional payments. And, in contrast to
the First Plea Offer, the Second Plea Offer would not allow for immediate conviction and
sentencing as a Class A misdemeanor.
JH's counsel did not inform JH of the Second Plea Offer.3 Respondent did not follow up
to ensure that counsel had received the fax and that JH had been informed. After a jury trial, JH
was convicted of Class C felony Check Fraud, and the Indiana Court of Appeals affirmed in an
unpublished decision. After the criminal conviction, Big Rivers filed a civil lawsuit against JH
seeking, among other things, treble damages, attorneys' fees, reimbursement for expenses, and
18% interest. (The outcome of the civil suit is not disclosed in the record.)
The Commission's Charges. The Commission charged Respondent with violating Rule
1.7(a)(2) by representing a client (the State) when the representation would be materially limited
by the attorney's responsibilities to a third person (Big Rivers), i.e., by allowing Big River to
advance its own interests in dictating the terms of restitution required to resolve the JH criminal
case by a plea agreement. The hearing officer concluded that that Commission had not met its
burden of proof on this charge, and the Commission does not challenge this conclusion. We
therefore summarily accept the hearing officer's conclusion on this charge.
The Commission also charged Respondent with violating Rule 8.4(d) (engaging in
conduct prejudicial to the administration of justice) by allowing Big Rivers to dictate as a
3
It is unclear whether JH's attorney received the fax making the Second Plea Offer. He has since died.
4
condition of the First Plea Offer an amount of restitution that would have exceeded what was
allowed by Indiana Code § 35-50-5-3 ("Restitution Statute") and was thus "extra-legal." The
hearing officer concluded that Respondent violated this rule, and Respondent seeks review of
this determination.
Discussion
Propriety of Surrendering to a Crime Victim Prosecutorial Discretion in Plea
Negotiations. The core of the Commission's complaint against Respondent is that she
improperly allowed the victim of a crime to dictate the terms of a plea agreement, including
provisions that the trial court could not impose.
A criminal defendant is not entitled to a plea offer of any sort and is free to reject any
plea offer that is not acceptable to him or her. A criminal defendant may consent to a sentence
that would be otherwise unauthorized to gain benefits in a plea agreement. For example, in
Stites v. State, 829 N.E.2d 527 (Ind. 2005), this Court upheld the trial court's denial of post-
conviction relief to a defendant who pled guilty and then alleged that the court lacked statutory
authority to order the sentence she agreed to. Noting that the defendant had received a
significant benefit from her plea agreement, we held that she could not be heard to complain
after striking this favorable bargain.
Here, had JH been able to comply with the First Plea Offer's terms, he would have
avoided a felony conviction, which he believed would have harmed him greatly in his business,
and any executed sentence. In light of this considerable benefit, the requirement in the
agreement that he pay his victim in excess of what the Restitution Statute may have allowed the
criminal court to impose would not necessarily render the agreement illegal or otherwise
improper. And he had no entitlement after this agreement failed to a second plea offer that
would allow immediate conviction and sentencing as a Class A misdemeanor.
Respondent, however, did more than just include in a plea offer, at a victim's request, a
restitution amount in excess of what the court could order under the Restitution Statute. Rather,
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Respondent ceded to Big Rivers the entirety of restitution decisions with respect to the First Plea
Offer, permitting Big Rivers to use the criminal case, without prosecutorial oversight, as leverage
in its civil dispute with JH.
In Matter of Miller, 677 N.E.2d 505 (Ind. 1997), a plaintiff who obtained a $117,210 civil
judgment against a defendant for breach of fiduciary duty suggested that the prosecutor conduct
a criminal investigation. The prosecutor charged the defendant with theft but expressed
willingness to dismiss if the defendant would settle the civil action. The plaintiff refused to
accept the defendant's initial $101,500 settlement offer. The prosecutor informed the defendant
that he should pay $20,000 above the offer to obtain dismissal of the criminal charges.
Eventually, the criminal action was dismissed for the prosecutor's failure to comply with
discovery orders, and the civil judgment was reduced to $10,367 on appeal. The Court held that
the prosecutor engaged in conduct prejudicial to administration of justice and approved an
agreed public reprimand. "[T]he respondent purposely used his prosecutorial authority to assist
plaintiff's counsel in collecting a civil judgment. . . . His actions reflect improper collusion
between an elected prosecutor and a private civil plaintiff." Id. at 508-09. In another case, the
Court emphasized its hope that "all prosecutors routinely exercise full prosecutorial discretion"
and the importance of "ensuring an optimum environment in which to do so." Matter of Curtis,
656 N.E.2d 258, 260 (Ind. 1995).
This is not to suggest that prosecutors may not allow crime victims to have substantial
and meaningful input into plea agreements offered to the offenders at whose hands they suffered.
But by giving Big Rivers unfettered veto power in the plea negotiations leading up to the First
Plea Offer, Respondent entirely gave up her prosecutorial discretion to enter into what would
otherwise be a fair and just resolution of the charges. If a prosecutor puts the conditions for
resolving similar crimes entirely in the hands of the victims, defendants whose victims are
unreasonable or vindictive cannot receive the same consideration as defendants whose victims
are reasonable in their demands. At very least, such a practice gives the appearance that
resolution of criminal charges could turn on the whims of victims rather than the equities of each
case.
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Respondent's asserted defenses. Respondent argues that even if there were improprieties
in the plea negotiations, she relied in good faith on the policies of her supervisors, Dobbins and
Bean. She thus contends that she has a defense under Professional Conduct Rule 5.2(b), which
states: "A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer
acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of
professional duty."
Although Respondent may have believed that Dobbins' office policy required victim
approval of plea offers, there was conflicting evidence on this matter and the hearing officer
resolved it against Respondent. This seems supported by the fact that just a few months after the
First Plea Offer, Respondent sought and obtained approval from either Dobbins or Bean of the
Second Plea Offer, which did not require Big Rivers' approval.
Respondent also argues that disciplining a deputy prosecutor based on acts of
prosecutorial discretion violates the separation of powers. We disagree. Prosecutors and their
deputies must follow the Rules of Professional Conduct in plea bargaining and other acts
involving prosecutorial discretion, and they may be disciplined by this Court when they fail to do
so. See Matter of McKinney, 948 N.E.2d 1154 (Ind. 2011); Matter of Ryan, 824 N.E.2d 687
(Ind. 2005); Matter of Miller, 677 N.E.2d 505 (Ind. 1997).
Violation and Discipline. We conclude that Respondent violated Rule 8.4(d) by allowing
Big Rivers unfettered veto power in plea negotiations with JH and that she has failed to establish
a defense under Rule 5.2(b). Noting that Respondent did not act out of any selfish or dishonest
motive and that she has no prior disciplinary history, we conclude that she should receive a
public reprimand.
Conclusion
The Court concludes that Respondent engaged in conduct prejudicial to the
administration of justice in violation of Indiana Professional Conduct Rule 8.4(d) by
surrendering her prosecutorial discretion in plea negotiations entirely to the pecuniary demands
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of the victim of the crime. For Respondent's professional misconduct, the Court imposes a
public reprimand.
The costs of this proceeding are assessed against Respondent. The hearing officer
appointed in this case is discharged.
The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to
the parties or their respective attorneys, and to all other entities entitled to notice under
Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this opinion to the
Court's website, and Thomson Reuters is directed to publish a copy of this opinion in the bound
volumes of this Court's decisions.
All Justices concur.
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