ATTORNEYS FOR THE RESPONDENT ATTORNEYS FOR THE INDIANA SUPREME COURT
Jon Laramore DISCIPLINARY COMMISSION
Terry E. Hall Donald R. Lundberg, Executive Secretary
Indianapolis, Indiana David B. Hughes
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Mar 11 2009, 2:59 pm
Indiana Supreme Court CLERK
_________________________________ of the supreme court,
court of appeals and
tax court
No. 49S00-0506-DI-302
IN THE MATTER OF:
JAMES R. RECKER,
Respondent.
_________________________________
Attorney Discipline Action
Hearing Officer Daniel J. Pfleging
_________________________________
March 11, 2009
Per Curiam.
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 Res-
pondent's 2000 admission to this state's bar subjects him to this Court's disciplinary jurisdiction.
See IND. CONST. art. 7, § 4. We find that Respondent, James R. Recker, did not engage in attor-
ney misconduct.
Background
The primary issue in this case is whether Respondent and attorney Laura Paul ("Paul")
were "associated in a firm" at the time of the relevant events such that Paul's client was also
deemed to be Respondent's client.
At all relevant times, there was no centralized public defender office in Putnam County.
Indigent defense in Putnam County was provided by each trial court's appointment of a part-time
public defender. The Putnam Circuit Court contracted with Respondent to handle its indigent
defense cases, and the Putnam Superior Court contracted with Paul for its indigent defense cases.
Both Respondent and Paul also maintained private practices, with Respondent's private office in
Indianapolis and Paul's in Terre Haute.
Putnam County provided office space in the old law library of its Courthouse for the
attorneys providing indigent defense ("PD offices"). In part because of budgetary constraints,
the County did not install doors on the cubicles in the PD offices and funded only one incoming
phone line. The hearing officer found that, despite the tight quarters, conversations in one
cubicle could not normally be heard outside that cubicle. The County provided generic
letterhead listing both courts and the words "Office of the Public Defender," without a listing of
attorneys. Part-time secretarial assistance was provided by court employees hired by the judges.
One of the secretaries who served as the office manager kept all public defender files in a central
location and allowed files to be checked out only to attorneys who had entered an appearance in
that particular case.
In 2004, Respondent was appointed to represent "AB," who was charged with battery
resulting in the death of his girlfriend's child. Respondent also was appointed to represent AB in
a Child in Need of Services ("CHINS") proceeding involving his own child. Subsequently, AB
hired James Holder ("Holder"), a private attorney, to represent him in the criminal case, but
Respondent continued to represent AB in the CHINS proceeding.
2
Meanwhile, Paul was appointed to represent "XY" in a criminal case pending in Superior
Court. AB, XY, and at least one other person were housed in the same holding cell in the
Putnam County jail. On February 10, 2005, Timothy Bookwalter ("Bookwalter"), the prosecutor
of Putnam County, met with Paul in the PD offices and told Paul that XY had passed a note to
the sheriff stating that AB had told XY some details of the alleged battery, but that XY wanted to
speak with his attorney before telling more. Paul believed that Bookwalter was suggesting a deal
for XY in exchange for providing information on AB. Respondent was not in the PD offices at
this time.
When Respondent returned to the PD offices, Paul told him of her conversation with
Bookwalter, revealing AB's name but not XY's. Because she had not experienced this situation
before, she asked Respondent what she should do. Paul did not know that Respondent
represented AB. Respondent believed that the client Paul was representing was a private client.
After his conversation with Paul, Respondent called Holder and told him that AB was
talking about his case to his cellmates. Holder contacted AB, who suspected the informant was
XY. When Bookwalter learned of the situation, he contacted the jail and had XY removed from
the cell he shared with AB. Eventually, the State charged AB with murder, XY testified at AB's
trial, and AB was convicted of murder.
The Commission filed a verified complaint on June 27, 2005, charging Respondent with
violating the following Indiana Professional Conduct Rules:
1.6(a), which prohibits revealing information relating to representation of a client without
the client's informed consent.
1.8(b), which prohibits using information relating to representation of a client to the
disadvantage of the client without the client's informed consent, as imputed to
Respondent by Rule 1.8(k).
1.8(k), which provides that while lawyers are associated in a firm, certain prohibitions
that apply to any one of them applies to all of them.
3
The hearing officer filed findings of fact and conclusions of law ("Findings") on January
8, 2008, concluding Respondent did not engage in misconduct. The Commission filed a petition
for review by this Court.
Discussion
The key issue in this case is whether Respondent and Paul were members of a "law firm"
when the relevant events occurred. Professional Conduct Rule 1.0 contains the following
definition:
"Firm" or "law firm" denotes a lawyer or lawyers in a law partnership,
professional corporation, sole proprietorship or other association authorized to
practice law; or lawyers employed in a legal services organization or the legal
department of a corporation or other organization.
(Emphasis added.) The following comment to this rule provides further guidance:
[2] Whether two or more lawyers constitute a firm . . . can depend on the
specific facts. For example, two practitioners who share office space and
occasionally consult or assist each other ordinarily would not be regarded as
constituting a firm. However, if they present themselves to the public in a way
that suggests that they are a firm or conduct themselves as a firm, they should be
regarded as a firm for purposes of the Rules. The terms of any formal agreement
between associated lawyers are relevant in determining whether they are a firm,
as is the fact that they have mutual access to information concerning the clients
they serve. Furthermore, it is relevant in doubtful cases to consider the
underlying purpose of the Rule that is involved. A group of lawyers could be
regarded as a firm for purposes of the Rule that the same lawyer should not
represent opposing parties in litigation, while it might not be so regarded for
purposes of the Rule that information acquired by one lawyer is attributed to
another.
(Emphasis added.)
The Court first addressed the issue of whether an office-sharing arrangement constituted
a firm under the Professional Conduct Rules in Matter of Sexson, 613 N.E.2d 841 (Ind. 1993).
In that case, the respondent, an attorney named "Thompson," and four other attorneys maintained
offices at one location. All attorneys shared one secretary, used a common letterhead as
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stationery, and used three common telephone lines. They left their offices unlocked and the
doors open. Conversations in the individual offices could be heard in a common hallway.
Thompson was retained by a couple, Mr. and Mrs. Zimmerman, to handle a personal
injury claim in which they were the plaintiffs. While that claim was still pending, Mr.
Zimmerman filed for dissolution of marriage, and Mrs. Zimmerman retained Respondent to
represent her. Respondent was charged with professional misconduct based on this
representation. It was undisputed that Thompson would have been disqualified from
representing Mrs. Zimmerman in the dissolution action. The issue was whether Thompson's
disqualification should be imputed to Respondent, which depended on whether the office sharing
arrangement constituted a "firm." The Court concluded it did:
In the present case, Respondent, Thompson, and the other attorneys used
common letterhead, shared phone lines, had apparent access to each other's
confidential information, and shared office personnel. When Mr. Zimmerman
made arrangements to get his settlement check [from the personal injury case], he
was greeted by Respondent with a restraining order prohibiting him from
negotiating the check. It was reasonable for Mr. Zimmerman to assume that
Thompson and Respondent were part of a "firm", and it was equally reasonable
for Mr. Zimmerman to conclude, that under these circumstances, Respondent
engaged in adverse representation.
Id. For engaging in the representation of a client that was directly adverse to the interests of
another client, the Court imposed a public reprimand.
While some of the factors the Court found relevant in Sexson are present in the current
case, there are key differences. Although the common space, staff, letterhead, and phone line
might in some circumstances tend to give the impression that Respondent and Paul constituted a
firm, the attorneys did not choose or have any say about those trappings, which were provided by
the Putnam County courts. They did not hold themselves out for business of any sort to
members of the public at this location. Rather, they worked at this location only on court-
assigned cases, and each attorney was assigned cases only from the court that retained that
attorney. Although the Commission and Respondent disputed how much access each attorney
had to the other's client files, the hearing officer resolved this by finding that a secretary provided
5
by the courts kept all the files in a central location and released a file only to an attorney who had
appeared in that case.
Based on these findings, the hearing officer concluded that Respondent and Paul were not
deemed to be members of a law firm while providing indigent defense services in Putnam
County, and thus Respondent did not owe a duty to XY when he communicated information he
had learned from Paul to Holder.
The Court finds the hearing officer's findings supported by the evidence and agrees with
his conclusion. There is no uniform system of providing indigent defense in Indiana's 92
counties. For example, indigent defense in Marion County is provided by the attorneys
employed by the Marion County Public Defender Agency. In some counties, attorneys
providing such services may be considered to comprise one law firm. Under the Putnam County
system, however, the public defenders simply share office space and support services provided
for their use by the courts. They are not deemed to be members of a firm, at least for the purpose
of the rule that information acquired by one lawyer in a firm is attributed to another.
Regardless of whether public defenders in a particular county are considered to be
members of a firm, it is imperative that they consider the implications their relationship have on
their professional duties to their clients. If the attorneys are deemed to be members of a firm,
avoiding improper conflicts of interest must be given a high priority. If the attorneys are
considered to be practicing independently, they must take care not to share improperly
confidential information about their clients with each other. Attorneys sharing office space, as
public defenders or in other contexts, may benefit from consulting with each other about legal
issues, but this can be done ethically only after first determining that the interests of both
attorneys' clients are not compromised.
In the current case, Paul gave Respondent information about someone, who turned out to
be XY, who was acting against his client AB's interests. Because XY was not his client,
Respondent did not violate any of the cited provisions in passing on the information he received
to AB's other attorney.
6
We express no opinion on whether Paul violated her duty to XY because that issue is not
before the Court. We note that it is attorney misconduct to knowingly assist or induce another
attorney to violate the rules of professional conduct. See Prof. Cond. R. 8.4(a). We express no
opinion on whether Respondent had a duty to try to prevent Paul from disclosing confidential
client information to him because he was not charged with violation of this rule.1
Conclusion
The Court concludes that Respondent did not commit the attorney misconduct charged
and therefore enters judgment in his favor. 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 Thomson/West for publication in the bound
volumes of this Court's decisions.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., dissents with separate opinion.
1
The Commission correctly points out that Paul has not been charged with misconduct and has not had an
opportunity to respond to the issues raised in this case.
7
Sullivan, Justice, dissenting.
The central issue in this case is whether the Putnam County public defender's office is a
"firm" within the meaning of the Indiana Rules of Professional Conduct. The Court agrees with
Respondent that County public defender's office is not a “firm” and, therefore, Respondent had
no ethical obligation to keep confidential the secrets of the client of another public defender, Ms.
Paul.
I respectfully dissent. 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. And I need hardly mention that that interest is presented in
particularly stark relief here as the client was placed in jeopardy of his physical safety by Res-
pondent's actions.
The test here is whether Respondent and Ms. Paul “present[ed] themselves to the public
in a way that suggests that they [were] a firm or conduct[ed] themselves as a firm." Because the
inviolability of client confidences is one of the bedrocks of our profession, I would apply this test
from a reasonable client's (rather than a lawyer's) perspective.
Take the case of a lawyer at Firm A who receives a fax or e-mail from a lawyer at Firm B
containing confidential information about one of Firm B's clients. The reasonable client could
not conclude that the lawyer at Firm A and the lawyer at Firm B presented themselves to the
public in a way that suggested that they were a firm nor that they had conducted themselves as a
firm and, as such, the receiving lawyer at Firm A would not have an ethical obligation to keep
the information confidential.
But here, Respondent and Ms. Paul worked in adjoining cubicles in a single office with a
sign over the entry door that read “Public Defender‟s Office.” There were no internal doors
within the office to separate the cubicles. There was common workspace for non-attorney secre-
tarial staff which supported both lawyers. In this common space were the office files of both
lawyers. The lawyers shared the same equipment and used the same stationery and telephone
8
system.
I submit that any client, whether telephoning one of these lawyers, receiving a letter from
one of these lawyers, or going to an appointment with one of these lawyers at the Public Defend-
er's Office, would reasonably conclude that these lawyers both presented themselves to the pub-
lic in a way that suggested that they were firm and also conducted themselves as a firm. Indeed,
one need not even apply a reasonable client test here as a lawyer -- Ms. Paul herself -- must have
thought that she was in the same firm as Respondent or she would not have disclosed confiden-
tial client information to him.
Under the Court's opinion, if Respondent, working in his cubicle, overheard a conversa-
tion between Ms. Paul and one of her clients, Respondent would have no ethical obligation to
keep the overheard information confidential. I submit that our Rules of Professional Conduct
mandate a different result. How can “the trust that is the hallmark of the client-lawyer relation-
ship,” Ind. Rule of Prof. Conduct 1.6, cmt. 2, exist if the lawyer in the next cubicle can reveal
that client‟s secrets simply because the lawyers are not technically in the same “firm”?
In a law review article entitled, “Public Defender‟s Office Is a „Law Firm‟ for Purpose of
Determining Whether Conflict Exists in Representation of Codefendants,” the author supports
her argument by describing precisely the problem encountered here:
The close association of the attorneys in the public defender's office makes
it possible that confidential information will be inadvertently circulated. The ne-
cessity of utilizing the services of the same investigator, the inevitable discussions
occurring in the office among the attorneys, and the overlapping sources of in-
formation from identical witnesses all contribute to this possibility.
Melanie Hines Alford, Comment, Public Defender‟s Office Is a „Law Firm‟ for Purpose of De-
termining Whether Conflict Exists in Representation of Codefendants, 5 Fla. St. L. Rev, 492,
504-05 (1977).
Many jurisdictions have adopted this position as a rule of criminal procedure. For exam-
ple, after the Pennsylvania Supreme Court held that the Public Defender's Association of Phila-
9
delphia constituted a law firm, such that two members of the same firm are prohibited from
representing multiple clients with inconsistent defenses, the state‟s intermediate court of appeals
held that the same rule applied to the Carbon County Public Defender's office. This was so even
though the lawyers in the Carbon County Public Defender's office worked independently and did
not share facilities, staff or files. In fact, they each maintained a private office and utilized their
own private secretarial help. Commonwealth v. Green, 550 A.2d 1011 (Pa.Super. 1988), follow-
ing Commonwealth v. Westbrook, 400 A.2d 160 (Pa. 1979).
Perhaps the Court is concerned that the public defender arrangement here is a common
one in our state's Balkanized system of trial courts and that holding it to be a firm would have
negative consequences. If so, I do not understand the argument. Even if the two lawyers here
are not a "firm," either one is likely to have conflicts of interest in particular criminal cases from
time to time that require the appointment of other counsel. Viewed from the perspective of a
county with a public defender office that is undeniably a "firm," lawyers in such an office are
clearly prohibited from representing clients with inconsistent defenses, regularly requiring other
counsel to be secured. While the necessity of securing "conflict" counsel presents some negative
fiscal and other consequences in counties large and small, they are part of the price that our legal
system has long paid to maintain the inviolability of client confidences in criminal cases. They
do not justify a deviation from that principle in the case of this particular public defender's office.
For the reasons set forth above, I believe that the public defender's office here constituted
a firm such that Respondent had an ethical duty to keep confidential the client information dis-
closed to him by Ms. Paul, that by disclosing the information, he violated Prof. Conduct R.
1.6(a), and that by using that information to the client's disadvantage, he violated Prof. Conduct
R. 1.8(k).
10