ATTORNEY FOR THE RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Jeffrey S. Bate DISCIPLINARY COMMISSION
Shelbyville, Indiana Seth T. Pruden, Interim Executive Secretary
Laura Iosue, Staff Attorney
Indianapolis, Indiana
___________________________________________________________________________
In the FILED
Jul 01 2010, 3:02 pm
Indiana Supreme Court
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 73S00-0812-DI-626
IN THE MATTER OF:
ANONYMOUS,
Respondent.
_________________________________
Attorney Discipline Action
_________________________________
July 1, 2010
Per Curiam.
Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court
Disciplinary Commission and Respondent have submitted for approval a "Statement of
Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed
discipline. The Respondent's 1980 admission to this state's bar subjects him to this Court's
disciplinary jurisdiction. See IND. CONST. art. 7, § 4.
The Court approves the agreement and finds that Respondent engaged in attorney
misconduct by employing a legal assistant whose incarceration made it impossible for
Respondent to ensure that the assistant's conduct was compatible with Respondent's professional
obligations to his client. For this misconduct, we find that Respondent should receive a private
reprimand.
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Background
The State Public Defender assigned Respondent as an independent contractor to represent
a client in a post-conviction relief ("PCR") proceeding. With the client's consent, Respondent
entered into an agreement with a nonlawyer inmate in the same facility where the client was
incarcerated under which the inmate would assist in researching and preparing a PCR petition for
the client. In exchange, Respondent agreed to represent the inmate in his own PCR proceeding.
Respondent retained the inmate as an independent legal assistant who was not employed
by a specific firm or lawyer. The inmate had limited access to communication, no expectation of
privacy, and limited access to research resources. Respondent had limited ability to review the
inmate's work. Respondent could not supervise the inmate and could not ensure that the inmate
would be able to comply with the Rules of Professional Conduct. These events took place in
1998-1999. There was considerable delay in the submission of a grievance to the Commission,
which filed a verified complaint against Respondent in 2008.
Facts in mitigation include: (1) Respondent has no disciplinary history; (2) he fully
cooperated with the Commission; and (3) he has a good reputation in the area in which he
practices.
Discussion
Professional Conduct Rule 5.3, concerning an attorney's responsibilities regarding
nonlawyer assistants, states:
With respect to a nonlawyer employed or retained by or associated
with a lawyer:
....
(b) a lawyer having direct supervisory authority over the
nonlawyer shall make reasonable efforts to ensure that the
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person's conduct is compatible with the professional
obligations of the lawyer . . . .
(Emphasis added.) Comment [1] to this rule provides:
Lawyers generally employ assistants in their practice, including
secretaries, investigators, law student interns, paralegals and other
paraprofessionals. . . . A lawyer must give such assistants
appropriate instruction and supervision concerning the ethical
aspects of their employment, particularly regarding the
obligation not to disclose information relating to
representation of the client, and should be responsible for their
work product. The measures employed in supervising nonlawyers
should take account of the fact that they may not have legal
training and are not subject to professional discipline.
(Emphasis added.)
The Court has provided guidelines to assist lawyers in their use of non-lawyer assistants,
which provide in relevant part:
Introduction
Subject to the provisions in Rule 5.3, all lawyers may use non-
lawyer assistants in accordance with the following guidelines.
Guideline 9.1. Supervision
A non-lawyer assistant shall perform services only under
the direct supervision of a lawyer authorized to practice in the
State of Indiana and in the employ of the lawyer or the lawyer's
employer. Independent non-lawyer assistants, to-wit, those not
employed by a specific firm or by specific lawyers are
prohibited. A lawyer is responsible for all of the professional
actions of a non-lawyer assistant performing services at the
lawyer's direction and should take reasonable measures to insure
that the non-lawyer assistant's conduct is consistent with the
lawyer's obligations under the Rules of Professional Conduct.
(Emphasis added.)
In this case, Respondent's employment of an incarcerated legal assistant made it
impossible for Respondent to supervise properly the assistant's work, to prevent client
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confidences from being compromised, and to ensure that the inmate would be able to comply
with the Rules of Professional Conduct.
Conclusion
The Court concludes that Respondent violated Professional Conduct Rule 5.3. The
parties propose the appropriate discipline is private reprimand. The discipline the Court would
impose for Respondent's misconduct would likely be more severe had this matter been submitted
without an agreement. The Court also notes that Respondent's misconduct occurred more than a
decade ago and that his record in nearly 30 years of practice is otherwise unblemished. The
Court therefore APPROVES and ORDERS the agreed discipline. For Respondent's professional
misconduct, the Court imposes a private 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 and
to the parties or their respective attorneys. 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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