ATTORNEY FOR THE RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Kevin P. McGoff DISCIPLINARY COMMISSION
Indianapolis, Indiana G. Michael Witte, Executive Secretary
Charles M. Kidd, Staff Attorney
Indianapolis, Indiana
___________________________________________________________________________
In the
FILED
Indiana Supreme Court Jun 16 2011, 10:55 am
_________________________________
CLERK
of the supreme court,
court of appeals and
No. 18S00-0905-DI-220 tax court
IN THE MATTER OF:
MARK R. MCKINNEY,
Respondent.
_________________________________
Attorney Discipline Action
Hearing Officer Steven H. David1
_________________________________
June 16, 2011
Per Curiam.
We find that Respondent, Mark R. McKinney, while serving as a deputy prosecuting
attorney, conducted asset forfeiture proceedings in a manner that created a conflict of interest
between his duties as a public official and the private gain he realized in the forfeiture
proceedings. On numerous occasions when the ethics of the asset forfeiture procedures were
called into question, Respondent turned a blind eye and acted to protect his private interest in his
continued pursuit of forfeiture property. For this serious attorney misconduct, we find that
Respondent should be suspended from the practice of law in this state for 120 days with
automatic reinstatement.
1
The Honorable Steven H. David was appointed as a Justice to this Court after his service as hearing
officer in this case. Justice David is not participating in Supreme Court review of his hearing officer's
report.
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. The
Respondent's 1991 admission to this state's bar subjects him to this Court's disciplinary
jurisdiction. See IND. CONST. art. 7, § 4.
Background
The salient facts in this case are stipulated by the parties. Although the parties filed
briefs on the appropriate sanction, neither party filed a petition for review of the hearing officer's
findings of fact. When neither party challenges the findings of the hearing officer, "we accept
and adopt those findings but reserve final judgment as to misconduct and sanction." Matter of
Levy, 726 N.E.2d 1257, 1258 (Ind. 2000).
Charges against Respondent. The Commission charged Respondent with violating these
Indiana Professional Conduct Rules prohibiting the following misconduct:
1.7(b) (effective Jan. 1, 1987): Representing a client (the State) when the
representation may be materially limited by attorney's own self-interest.
1.7(a)(2) (effective Jan. 1, 2005): Representing a client when there is a
concurrent conflict of interest because of a significant risk that the
representation may be materially limited by attorney's own self-interest.
1.8(l): While serving as a part-time or deputy prosecutor, representing a client as
a private attorney in a matter wherein there exists an issue upon which he has
statutory prosecutorial authority or responsibilities. (The rule was numbered
1.8(k) during part of the relevant period.)
8.4(d): Engaging in conduct prejudicial to the administration of justice.
Factual basis for the charges of misconduct. From 1995 through the end of 2006,
Respondent was a salaried deputy prosecuting attorney ("DPA") employed at the Delaware
County Prosecutor's Office by Richard Reed, the prosecuting attorney ("Prosecutor Reed"). On
January 1, 2007, Respondent began serving a term as a salaried elected prosecutor.
2
Respondent prosecuted a variety of criminal cases, including drug offenses. Respondent,
while a DPA, worked with the Muncie-Delaware County Drug Task Force ("DTF") and was
personally involved in drug investigations and many of the resulting criminal cases. During
arrests and/or the execution of search warrants, the police seized money and other property from
drug suspects. Criminal charges were determined by the DPA assigned to the case, and
Respondent prosecuted many of the defendants charged with drug crimes.
In addition to his DPA salary, Respondent received attorney fees as a private practitioner
for bringing suits for the forfeiture of criminal defendants' property, as did other DPAs, including
Louis Denney. In 1995 and 2004, Respondent and Prosecutor Reed entered into written fee
agreements ("Fee Agreements") under which Respondent would receive an amount equal to 25%
of any judgment entered in a civil forfeiture action Respondent brought under a statute currently
codified at Indiana Code § 34-24-1-1, et seq.
Prosecutor Reed contemplated that the same DPA would handle both the criminal case
and the forfeiture case associated with it, and that the criminal case would conclude before any
resolution of the forfeiture case. Otherwise, the costs associated with the criminal case would
not be known. Respondent and another lawyer were in charge of the civil forfeiture process;
Prosecutor Reed did not personally oversee it.
Acting pursuant to the Fee Agreements, Respondent filed civil forfeiture actions in
Delaware County courts on behalf of the State, the DTF, and other local police agencies, seeking
forfeiture of property, including cash, that police seized from defendants in Delaware Country
criminal cases that Respondent prosecuted. In 1996, a private bank account, called the "Asset
Forfeiture Attorney Fee Account," was opened, with Respondent and DPA Denney as
signatories, into which their 25 percent share of forfeited funds were deposited and then
disbursed to them.
Prosecutor Reed interpreted the Fee Agreements to require Respondent to handle
forfeiture cases outside his duties as a DPA. Respondent, however, viewed the civil forfeiture
cases as part of his duties as a DPA and testified that he believed his client was the State in these
3
matters. The hearing officer rejected Respondent's interpretation, noting that Respondent's
invoices for payment were in the name of "Mark R. McKinney, attorney at law," that he pursued
forfeiture cases for other entities, including Ball State University, and that he stated in a 1999
memo during an investigation by Judge Richard Dailey (discussed below) that DPAs were hired
as "Plaintiff's counsel" to pursue the cases for a 25% contingent fee.
Beginning in 2002, Respondent used what he called "Confidential Settlement
Agreements" ("CSAs") to transfer seized property, including cash, from criminal defendants to
the City of Muncie, through private agreement by the parties without court supervision or public
disclosure. Respondent invoiced the City of Muncie for and collected 25% of the money
transferred pursuant to any CSA. Respondent claimed compensation from the CSAs based on
his interpretation of the Fee Agreements. The Court finds, however, that this interpretation was
clearly erroneous. The Fee Agreements reference forfeitures of "property seized pursuant to I.C.
34-4-30.1 et seq." and provide for fees of 25 percent of "any judgment entered in such actions"
or the fee "allowed by the court in such actions." Transfers of property pursuant to a CSA were
accomplished without court review or authorization.2
In many instances, criminal cases were open while related civil forfeiture actions were
also open or while Respondent engaged in CSA negotiations with criminal defendants.
Respondent at times engaged in plea agreement negotiations regarding criminal cases with
criminal defendants before and/or after Respondent also engaged in CSA negotiations or
settlement negotiations regarding related civil forfeiture actions with the same criminal
defendants. Respondent did this knowing that he would receive payment as personal
compensation equaling 25% of the amount transferred as a result of the action. There is no
evidence, however, that Respondent ever explicitly agreed to offer favorable treatment to a
criminal defendant in exchange for money transferred either by CSA or a civil forfeiture action.
Respondent did not attempt to conceal his activities concerning his compensation in forfeiture
cases.
2
Prosecutor Reed testified that he did not know about the CSAs until after he left office and questioned
their legality because they circumvented court supervision.
4
Over the years, there were a number of inquiries and investigations into aspects of
Delaware County's forfeiture program. The auditor of the State Board of Accounts ("Board")
raised the issue with Prosecutor Reed in 1998. The Board sought a advisory opinion from the
Indiana Attorney General on the issues of whether various attorneys within a prosecutor's office
could be paid in excess of their state minimum salary from funds generated by the prosecution of
forfeiture and other cases; and if so, whether Indiana Code § 36-2-5-14 prohibited such
compensation in excess of $5,000. The Attorney General's advisory opinion, dated November
18, 1998, said that such payments could be made and that the statutory cap applied only to full-
time prosecuting attorneys but not to others, including DPAs. The opinion did not address any
conflict of interest issues.
In 1999, Respondent sought guidance from the Indiana Prosecuting Attorneys Council
regarding the way funds obtained from forfeitures were handled. He disclosed that court orders
divided the assets such that 25% went to attorney fees, which was deposited into and disbursed
from the Asset Forfeiture Attorney Fee Account. The Council did not alert Respondent to any
potential ethical problems. However, Respondent did not fully explain how the procedure
worked and did not raise any conflict of interest issues. He made no disclosure of and sought no
guidance about disposing of cases by "Confidential Settlement Agreements" beginning in 2002
rather than under the judicial supervision required by the Indiana Code.
In 1999, the Commission on Judicial Qualifications ("CJQ") sent Delaware Circuit Judge
Richard Dailey a "Notice of Inquiry" regarding use of the Asset Forfeiture Attorney Fee
Account. Respondent sent Judge Dailey a memorandum explaining and defending the
procedure. Judge Dailey then responded to the CJQ by describing the account and procedure and
asking for guidance from the CJQ. In response, the CJQ sent Judge Dailey a letter on April 19,
1999, expressing concern that forfeited assets were deposited into a private account and,
apparently sua sponte, "question[ing] the propriety of a practice whereby the deputy prosecutors
receive a percentage of the fruits of forfeiture actions, which practice appears to give them a
personal stake in the proceedings." The CJQ also stated that the matter had been referred to the
Disciplinary Commission for its review. (Respondent testified that he did not see the CJQ's
letter until 2008 when Judge Dailey initiated an investigation, discussed below. )
5
A request for investigation into the forfeiture procedures was filed with the Commission
on April 19, 1999. Respondent replied and requested that the case be dismissed. No charges
were filed, but the matter was not formally dismissed.
Another request for investigation into the forfeiture procedures, which did not explicitly
mention a potential conflict of interest, was filed with the Commission by the mayor of Muncie
on May 19, 2008. On June 20, 2008, the mayor filed a petition for a special prosecutor to
investigate the forfeiture procedure. A special prosecutor was appointed and filed a report that
focused on the remittance and processing of drug forfeiture monies. The investigation concluded
without criminal charges against Respondent.
After the mayor filed her petition for a special prosecutor, Judge Dailey sua sponte
initiated litigation concerning the forfeiture procedure. That litigation ended in March 2009 with
an agreement by the parties that the goals of the investigation were achieved by a new local rule.
Respondent was not required to make any reimbursement of the fees he had received in
forfeiture cases, and the State Board of Accounts was able to account for all funds at issue.
The hearing officer's conclusions. The hearing officer concluded that Respondent
violated the Professional Conduct Rules as charged. On numerous occasions, Respondent knew
or should have known that the ethics of the asset forfeiture program and his management of it
were called into question. When such questions arose, Respondent acted to protect his private
interest in his continued pursuit of forfeiture property. Respondent did not end the program until
the conclusion of the civil action concerning the procedure.
Facts in Aggravation and Mitigation. The hearing officer found the following facts in
aggravation: (1) Respondent engaged in misconduct over an extended period of time; and (2) he
never himself thoroughly investigated concerns and complaints about the forfeiture procedure,
instead relying on opinions of others based on incomplete information.
6
The hearing officer found the following facts in mitigation: (1) Respondent has no prior
history of disciplinary action; (2) he has been an active member of the Indiana legal community;
and (3) he has been a leader in various community organizations.
Discussion
The parties stipulate that the narrow issue in this case is whether there is a conflict of
interest when a deputy prosecutor contracts privately to do what the elected prosecutor could
properly contract with private counsel to handle.3 At this point in these proceedings, the parties
do not dispute the hearing officer's findings of fact or his conclusion that Respondent violated the
rules as charged. The only issue the parties briefed was what discipline is appropriate.
Although Prosecutor Reed set up and approved the procedure under which Respondent
retained 25% of civil forfeiture judgments, the conflict of interest created by this system of
compensation when he was also prosecuting the criminal action should have been apparent to
Respondent. At no time did he undertake an independent assessment of the procedure. Had
Respondent at any time taken a critical look at the system, he should have been able to see that a
DPA's representation of the State could have been materially limited by the DPA's personal
financial interest in the CSAs or the outcomes of civil forfeiture actions. Respondent essentially
turned a blind eye to these now-conceded ethical violations for well over a decade.
It is apparent that Respondent had still not critically examined his conflict of interest even
by the time of the hearing in this case. He testified that the Fee Agreements made the pursuit of
forfeiture cases part of his duties as a DPA. However, the Fee Agreements specifically required
that pursuit of forfeiture cases was not to interfere with Respondent's duty as a DPA, Prosecutor
Reed testified unequivocally that pursuit of forfeiture cases was ancillary to the duties of a DPA,
and Respondent billed and received payment for the forfeiture cases as a private attorney.4
3
The propriety of Respondent's use of the Asset Forfeiture Attorney Fee Account, his accounting of
funds, his use of CSAs to effect forfeitures without court supervision or public disclosure, and his
misinterpretation of the Fee Agreement to apply to CSAs are not at issue in this disciplinary proceeding,
although the first three were major issues in some of the other investigations of the forfeiture procedure.
7
In addition to the aggravating facts found by the hearing officer, we find that Respondent
has been not been entirely forthcoming and cooperative with the various investigations into the
forfeiture procedure. Respondent failed in prior investigations to reveal fully the details of the
forfeiture procedure that may have raised the conflict of interest issue at an earlier point. As
noted by the hearing officer, after being elected prosecutor, he rejected an inquiry by the mayor
of Muncie about the membership of the DTF. He attempted, without success, to procure an
order from this Court removing Judge Dailey from the litigation he initiated to investigate the
forfeiture procedure. See State ex rel. McKinney v. Delaware Cir. Ct., 18S00-0806-OR-345
(Ind. July 7, 2008).
As a deputy prosecutor, Respondent "served a public trust to enforce the law and the
state was entitled to his undivided loyalty." Matter of Ryan, 824 N.E.2d 687, 689 (Ind. 2005).
Attorneys charged with law enforcement responsibilities must conduct themselves
at all time in a manner that promotes public confidence in the justice system.
Prosecutors are not simply advocates, but they are also . . . ministers of justice . .
. . As such, we hold prosecutors to a high standard of ethical conduct.
Matter of Winkler, 834 N.E.2d 85, 90 (Ind. 2005) (citations and internal quotations omitted).
In some cases, the Court has given public reprimands to DPAs who have committed an
isolated violation of the rules prohibiting conflicts of interest. See Matter of Barce, 849 N.E.2d
1145 (Ind. 2006); Matter of Tyler, 823 N.E.2d 277 (Ind. 2005). More serious, ongoing
violations, however, have resulted in suspension from practice. In Ryan, we imposed a
suspension of nine months without automatic reinstatement on a DPA who reduced traffic
charges against defendants who obtained international driver's licenses from a business operated
by the DPA and his wife.
4
To be clear, the Court is not penalizing Respondent for asserting a defense to the charges against him
and proceeding to a hearing. The Court notes only his continuing failure to evaluate critically the
forfeiture compensation procedure.
8
As a deputy prosecutor, respondent served a public trust to enforce the law and
the state was entitled to his undivided loyalty. Respondent's conduct breeds
mistrust and lack of confidence in the judicial system. He used his position
as a deputy prosecutor to obtain a significant financial windfall for himself.
By serving both as prosecutor and as intermediary for those seeking a favorable
plea agreement, respondent gave the impression that justice could be bought. As
a public officer charged with the administration of justice, respondent's behavior
had the capacity to bolster or damage the public's perception of the criminal
justice system. Unfortunately, respondent chose to follow a path that damaged
the perception of the administration of justice. By conducting a business that
impacted upon his resolution of traffic violations, respondent violated the public's
trust. This is serious misconduct, which cannot be ignored.
Id. at 689 (emphasis added, citations omitted).
In Matter of Curtis, 656 N.E.2d 258 (Ind. 1995), we imposed a 30-day suspension with
automatic reinstatement on a part-time elected prosecutor who represented a client in small
claims matters while also representing the State in a criminal matter involving the client's
delinquent taxes.
Respondent's conduct, if anything, frustrates our hope that all prosecutors
routinely exercise full prosecutorial discretion, because concurrent representation
of this sort threatens to impede its full exercise. Thus, our holding today is
meant to preserve and foster the exercise of prosecutorial discretion by
ensuring an optimum environment in which to do so.
Id. at 260 (emphasis added).
Although there is no evidence in this case that Respondent made any explicit quid pro
quo offer of favorable treatment to any criminal defendant in exchange for the forfeiture of
property from which Respondent would be compensated, it would doubtless be evident to such a
defendant, and to his or her attorney if represented, that prosecutorial discretion in how to
proceed with the criminal case was held by one who stood to reap personal financial gain if the
defendant agreed to the forfeiture of his or her assets. Respondent's misconduct created an
environment in which, at the very least, the public trust in his ability to faithfully and
independently represent the interests of the State was compromised.
9
For these reasons, we conclude that a period of suspension with automatic reinstatement
is warranted.
Conclusion
The Court concludes that Respondent violated the Indiana Professional Conduct Rules by
representing the State when the representation could have been materially limited by his own
self-interest in receiving compensation as a private attorney from property forfeited in civil
forfeiture actions and under CSAs.
For Respondent's professional misconduct, the Court suspends Respondent from the
practice of law for a period of 120 days, beginning July 28, 2011. Respondent shall not
undertake any new legal matters between service of this order and the effective date of the
suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission
and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no
other suspensions then in effect, Respondent shall be automatically reinstated to the practice of
law, subject to the conditions of Admission and Discipline Rule 23(4)(c).
The costs of this proceeding are assessed against Respondent.
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, except Rucker, J., who concurs in part and dissents in part, and David, J.,
who did not participate.
Agreeing with the recommendation of the hearing officer that a public reprimand is appropriate
in this case, Justice Rucker dissents to the sanction imposed by the majority. Otherwise he
concurs in the majority opinion.
10