ATTORNEY FOR THE RESPONDENTS ATTORNEYS FOR THE INDIANA SUPREME COURT
Karl L. Mulvaney DISCIPLINARY COMMISSION
Indianapolis, Indiana Donald R. Lundberg, Executive Secretary
Laura Beth Iosue, Staff Attorney
Indianapolis, Indiana
In the
Indiana Supreme Court
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No. 88S00-0408-DI-346
IN THE MATTER OF
CYNTHIA L. WINKLER Respondent.
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No. 88S00-0408-DI-347
IN THE MATTER OF
BLAINE GOODE Respondent.
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Disciplinary Action
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September 13, 2005
Per Curiam,
In this opinion, we find that the respondents, Cynthia L. Winkler (“Winkler”), Prosecut-
ing Attorney, and Blaine Goode (“Goode”), Chief Deputy Prosecuting Attorney, for Washington
County, violated Ind. Professional Conduct Rules 4.1(a), 4.4, and 8.4(c) and (d). Their miscon-
duct arises from their improper seizure of notes taken by a defendant during a deposition in a
criminal proceeding and their attempts to conceal the seizure when questioned by defendant’s
counsel. For this misconduct, we suspend respondent Winkler for one hundred-twenty (120)
days, with automatic reinstatement thereafter, and respondent Goode we suspend for sixty (60)
days with automatic reinstatement thereafter.
This case commenced with the filing of a Verified Complaint for Disciplinary Action
against both respondents by the Indiana Supreme Court Disciplinary Commission on August 4,
2004. Our jurisdiction in this case is conferred by Winkler’s admission to the bar of this state on
June 3, 1983, and Goode’s admission on June 7, 2002. This Court appointed a hearing officer to
hear this matter pursuant to Ind. Admission and Discipline Rule 23, Section 11(b). His report is
now before the Court for consideration. Winkler has accepted the hearing officer’s findings and
requests that his recommended sanction, a ninety (90) day suspension, be imposed immediately.
Goode has filed a petition for review in which he does not challenge the factual determinations
or conclusions of the hearing officer, but urges the imposition of a public reprimand rather than
the sixty (60) day suspension recommended by the hearing officer. The Court has also consid-
ered the Commission’s responses to the pleadings of each respondent.
When, as here, the hearing officer's disciplinary findings are unchallenged 1 , it has been
the practice of this Court to accept and approve the findings subject to our final determination as
to misconduct and sanction. In re Williams, 764 N.E.2d 613, 614 (Ind.2002); In re Puterbaugh,
716 N.E.2d 1287, 1288 (Ind.1999); Matter of Grimm, 674 N.E.2d 551, 552 (Ind.1996). We
therefore approve and adopt the hearing officer's conclusions that the respondents’ conduct vio-
lated Ind. Professional Conduct Rule 4.1(a), 4.4 and 8.4(c) and (d).
As reported by the hearing officer, we find the relevant facts as follows. On February 11,
2003, during the course of a deposition in a criminal case, Goode seized notes the defendant had
written and shared with his attorney. Goode tore the notes from a legal pad that had been turned
face down on a table before the defendant and his counsel left the room to confer. Goode gave
the notes to Winkler who concealed them by placing the notes among a stack of files she had be-
fore her on the table. Respondents wanted to use the notes as a handwriting exemplar to compare
1
Though Goode’s petition for review explicitly does not challenge the hearing officer’s findings or conclusions, his
response to the Commission’s reply to his petition for review does challenge the hearing officer’s findings. The
Commission objected, contending that Goode’s response was an untimely petition for review. We find that the
Commission’s position is correct, but also find that the material set forth in Goode’s response does not change our
resolution of this matter.
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with other evidence in the case. When defendant and his counsel returned to the room neither
respondent advised them that they had seized the notes. When counsel and the defendant began
looking for the notes, Winkler went so far as to shuffle through her files as if looking for the
notes. Only when defendant saw the edge of a yellow piece of paper protruding from Winkler’s
files, did she acknowledge having the notes and return them to defendant.
Maintaining the confidentiality of communications between an attorney and a client is a
foundational element of our justice system. “The right to the assistance of counsel guaranteed by
the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversar-
ial system of criminal justice.” Maine v. Moulton, 474 U.S. 159, 168, 106 S.Ct. 477, 483, 88
L.Ed.2d 481 (1985). “The attorney-client privilege is a very important provision in our law for
the protection of persons in need of professional legal help.” Colman v. Heidenreich, 269 Ind.
419, 381 N.E.2d 866, 868 (1978). By their conduct, respondents infringed upon the defendant’s
right to communicate freely with his counsel by improperly seizing his deposition notes, which
he had shared with his attorney. Without benefit of a search warrant, subpoena or court order,
respondents surreptitiously took defendant’s notes. This conduct is contrary to the requirements
of Prof.Cond.R. 4.4, which prohibits a lawyer from obtaining evidence by means that violate the
rights of a third person.
Respondents also violated Prof.Cond.R. 4.1(a), which provides that a lawyer shall not
make a false statement of material fact to a third person. The Commentary to this rule notes that:
A misrepresentation can occur if the lawyer incorporates or affirms
a statement of another person that the lawyer knows is false. Mis-
representation can also occur by failure to act.
Here, Winkler directly misled the defendant and his counsel by stating and implying that
she did not know where the missing notes were located. She even went through the charade of
looking through her files and not finding the missing notes she knew were there. Goode failed to
inform the defendant or his counsel that he had taken the notes and stood by without revealing
respondents’ deception. This same conduct also violates Prof.Cond.R. 8.4(c), which prohibits a
lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
Finally, respondents’ conduct was prejudicial to the administration of justice in violation
of Prof.Cond.R. 8.4(d). Not only did they potentially jeopardize a criminal prosecution, they also
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damaged the public’s perception of the criminal justice system, attempted to evade the authority
of the judge, and ignored the protections created by our rules of procedure.
The duty of prosecutors to conform their behavior to the law does
not arise solely out of their status as attorneys. As officers charged
with administration of the law, their own behavior has the capacity
to bolster or damage public esteem for the system. Where those
whose job it is to enforce the law break it instead, the public right-
fully questions whether the system itself is worthy of respect. The
harm done is to the public esteem for those charged with enforcing
the law.
Matter of Seat, 588 N.E.2d 1262, 1264 (Ind. 1992).
Having found misconduct, we must now assess the appropriate discipline. In so doing, we
examine the nature of the misconduct, the actual or potential injury flowing from the misconduct,
the respondent's state of mind, the duty of this Court to preserve the integrity of the profession,
the potential injury to the public in permitting the respondent to continue in the profession, and
any mitigating or aggravating circumstances. Matter of Drozda, 653 N.E.2d 991(Ind.1995). The
hearing officer recommended a ninety (90) day suspension for Winkler and a sixty (60) day sus-
pension for Goode. While we accept the hearing officer’s recommendation as to Goode, our
analysis is that the recommended sanction is not adequate and does not sufficiently reflect the
serious nature of Winkler’s misconduct. An example of the serious consequences of similar mis-
conduct is described in State v. Granacki, 90 Wash. App. 598, 959 P.2d 667 (1998) where crimi-
nal charges were dismissed as a sanction for a police officer who, during a break in a trial, read
notes at the defense table about defendant’s communication with his attorneys. Fortunately, we
are not faced with deciding how to deal with such conduct in the context of a trial. We are, how-
ever, faced with determining the appropriate sanction for respondents’ blatant ethical violations.
Respondents’ taking the notes concerns us, but their attempts to conceal their misconduct
are even more distressing. Rather than acknowledge their possession of the notes, the respon-
dents attempted to deceive the defendant and his counsel. In this regard, the most troubling as-
pect of this case is Winkler’s insistence, even in the proceedings before the hearing officer, that
she had done nothing wrong. Based on her testimony the hearing officer concluded: “Respondent
Winkler does not appreciate the wrongfulness of her conduct, and does not have any insight into
why her actions were wrongful.” Findings of Fact and Conclusions of Law, p. 30. It is this lack
of insight that leads us to conclude that a significant sanction is necessary to ensure that the seri-
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ousness of her misconduct is impressed upon her. Winkler has over twenty years of experience
as an attorney. In light of her insistence that she did nothing wrong, we have grave concerns that
similar misconduct could be repeated in the future.
In the case of Goode, though he instigated this whole affair, he did not thereafter actively
deceive the defendant and his counsel about the whereabouts of the notes nor did he insist
throughout these proceedings that his conduct was proper.
The sanctions in this case must be significant. As prosecutors, respondents serve a public
trust to enforce the law. Matter of Moore, 453N.E.2d 971 (Ind. 1983). Their actions here have
violated that trust. An attorney who among other violations, purposefully read documents identi-
fied as confidential received a ninety (90) day suspension from the practice of law. Matter of Al-
len, 783 N.E.2d 1118 (Ind. 2002). Attorneys charged with law enforcement responsibilities must
conduct themselves at all time in a manner that promotes public confidence in the justice system.
Matter of Musser, 517 N.E.2d 395, 396 (Ind. 1988). Prosecutors are not simply advocates, but
they are also “…ministers of justice. … This responsibility caries with it specific obligations to
see that the defendant is accorded procedural justice …” Prof.Cond.R. 3.8, Comment 1. As such,
we hold prosecutors to a high standard of ethical conduct. Here, blinded by their zealous quest to
prosecute the defendant, respondents lost sight of basic ethical considerations. It is important that
all lawyers understand that it is unacceptable to tolerate litigation premised on “the end justifies
the means”.
For the violation of the defendant’s rights, for their deceit, and for their violation of the
public trust, we find that the respondent, Cynthia L. Winkler, is suspended from the practice of
law for one hundred-twenty (120) days, and that the respondent, Blaine Goode, is suspended
from the practice of law for sixty (60) days, both with automatic reinstatement thereafter. These
suspensions shall commence on a date to be decided by further order of this Court after a tempo-
rary prosecuting attorney is arranged.
Costs of these proceedings are assessed against the respondents.
SHEPARD, C.J. and DICKSON, SULLIVAN and RUCKER, J.J., concur
BOEHM, J., concurs as to Winkler, but dissents as to Goode, believing facts justifying discipline
more serious than a public reprimand are not established by clear and convincing evidence.
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