FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Stephen Gerald Gray Donald R. Lundberg, Executive Secretary
Ste. 800, Circle Tower Building Dennis K. McKinney, Staff Attorney
55 Monument Circle 115 West Washington Street, Ste. 1060
Indianapolis, IN 46204 Indianapolis, IN 46204
______________________________________________________________
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 49S00-9801-DI-2
DARREN T. COLE )
IN THE MATTER OF )
) Case No. 49S00-9801-DI-3
SCOTT C. COLE )
____________________________________________________________________
DISCIPLINARY ACTION
_____________________________________________________________________
November 6, 2000
Per Curiam
These attorney disciplinary cases are the product of separate
verified complaints for disciplinary action filed by the Commission
alleging misconduct connected with the respondents’ yellow pages
advertisement for legal services and other attendant misconduct. Pursuant
to this Court’s order granting the Commission’s subsequent motion to
consolidate the actions, the hearing officer appointed by this Court to
hear evidence in these matters conducted a joint evidentiary hearing on
both complaints and now has tendered to this Court his findings of fact and
conclusions of law. Neither the Commission nor the respondents petitioned
for review of the hearing officer’s report; accordingly, we adopt the
factual findings contained therein and conclude that each respondent
engaged in misconduct and that discipline is warranted.
We now find that Scott Cole was admitted to the bar of this state in
1994; Darren Cole in 1995. Scott served as a full-time deputy prosecuting
attorney in Johnson County from January 1, 1996, through January 15, 1997.
His employment agreement did not prohibit his private practice of law, to
the extent it did not result in a conflict of interest with his duties as a
prosecuting attorney. During certain periods, Darren associated with him
in private law practice.
I. Attorney Advertising Violations
Between August 1996 and December 1996, Scott practiced law with Darren
under the name “Cole Law Offices.” They took out several advertisements in
the 1996 Ameritech Yellow Pages, under the name Cole Law Offices. One
advertisement contained individual color photographs of each. The caption
beneath Darren’s photo provided, “Divorce and Family Law,” “Criminal
Defense,” “Drunk Driving/DUI,” “Juvenile Law,” and “Bankruptcy.” Scott’s
photo was accompanied by the notations “Prosecutor Johnson County,” “Tax
Law,” “Insurance Law,” “Debt Collections,” and “Wills & Estates.” Another
advertisement identified Scott as “Johnson County Prosecutor.”
Indiana Professional Conduct Rule 7.1(b) provides:
A lawyer shall not, on behalf of himself, his partner or associate or
any other lawyer affiliated with him or his firm, use, or participate
in the use of, any form of public communication containing a false,
fraudulent, misleading, deceptive, self-laudatory or unfair statement
or claim.
Professional Conduct Rule 7.1(c) provides:
Without limitation a false, fraudulent, misleading, deceptive, self-
laudatory or unfair statement or claim includes a statement or claim
which:
(1) contains a material misrepresentation of fact;
(2) omits to state any material fact necessary to make the
statement, in the light of all circumstances, not
misleading;
(3) is intended or is likely to create an unjustified
expectation;
(4) states or implies that a lawyer is a certified or
recognized specialist other than as permitted by Rule 7.4;
(5) is intended or is likely to convey the impression that
the lawyer is in a position to influence improperly any
court, tribunal, or other public body or official;
(6) contains a representation or implication that is likely
to cause an ordinary prudent person to misunderstand or be
deceived or fails to contain reasonable warnings or
disclaimers necessary to make a representation of
implication not deceptive.
By identifying himself in the Yellow Pages advertisement as “Prosecutor” of
Johnson County when in fact he was an appointed deputy prosecutor, Scott
provided a false, misleading, and deceptive statement in that it contained
a material misrepresentation of fact.
Professional Conduct Rule 8.4(c) provides that a lawyer shall not
engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation. Scott violated that provision by allowing himself to be
identified as the “Prosecutor” of Johnson County in the advertisement when
in fact he was not the elected prosecutor.
Darren and Scott violated Prof.Cond.R. 8.4(d), which prohibits
conduct prejudicial to the administration of justice, by suggesting in the
advertisement that, due to Scott’s identification as the Johnson County
Prosecutor, employing the Cole Law Offices to defend criminal matters could
result in more favorable treatment by the state in its prosecution.
II. Conflict of Interest
On June 14, 1996, Darren appeared as counsel for a defendant charged
with juvenile delinquency. Darren appeared in court in connection with
that matter on August 12, 1996. On August 26, 1996, Darren again appeared
in court representing the defendant during a dispositional hearing in the
juvenile delinquency case. On August 13, 1996, Darren became a deputy
prosecuting attorney in Tippecanoe County, was sworn into that position
during February 1997, and held the position through March 31, 1998.
As a deputy prosecutor of Tippecanoe County, Darren served a public
trust to enforce the law. Matter of Moore, 453 N.E.2d 971, 974 (Ind.
1983). The state is entitled to a prosecutor’s undivided loyalty. Matter
of Davis, 471 N.E.2d 280 (Ind. 1984). For example, the requirement of
loyalty to a particular client prohibits a part-time prosecutor or deputy
prosecutor from defending in this state persons charged with crimes. See,
e.g., Indiana State Bar Association, Legal Ethics Subcommittee, Op. 2
(1972); Op. 1 (1977); Op. 6 (1978); Op. 6 (1985). See also Richard H.
Underwood, Part-time Prosecutors and Conflicts of Interest: A Survey and
Some Proposals, 81 Ky.L.J. 1, 37-39 (1992-3). In the delinquency case, the
state of Indiana, the respondent’s own client while he served as a deputy
prosecuting attorney, was the adverse party. As such, his representation
of a defendant in the delinquency case while serving as a deputy prosecutor
violated Prof.Cond.R. 1.7.[1], [2]
III. Response to Commission Inquiry
On November 25, 1996, the Commission filed a grievance against Darren,
referring to the possibility of a conflict of interest due to the Cole Law
Office advertisement which identified Scott as a prosecutor and the
office’s acceptance of “Criminal Defense” and “Drunk Driving/DUI” cases.
In response to notification of the grievance, Darren stated that the only
cases in which he had been involved that even closely resembled criminal or
infraction cases were the juvenile case and a restricted license case (see
footnote 2, infra). He added: “Both cases were resolved well before the
advertisement came out and before I was sworn in as a Tippecanoe County
Deputy Prosecutor.” In fact, Darren was attorney of record in both cases
after he began work as a deputy prosecutor for Tippecanoe County, despite
the fact that he was not formally sworn in as a deputy prosecutor until
February 1997.
Professional Conduct Rule 8.1(b) provides that an attorney shall not
fail to disclose facts necessary to correct a misapprehension known by him
to have arisen in connection with a disciplinary matter. By failing to
advise the Commission that he actually began work as a Tippecanoe County
deputy prosecutor on August 13, 1996, prior to his formal swearing in, and
disclosing only that both cases were resolved well before he was sworn in,
Darren violate the rule.
IV. Practicing Law While on Inactive Status
Darren filed an Exemption Affidavit with the Clerk of the Supreme
Court of Indiana on February 21, 1996, stating that he would not engage in
the practice of law in Indiana and that he would not hold any judicial
office. He requested exemption from payment of the required annual
registration and continuing legal education fees and from the continuing
legal education requirements. See Ind.Admission and Discipline Rule
23(21)(b)(2). On December 23, 1996, Darren notified the Clerk that he
desired to return to active status, and paid the required registration fee.
During the interim, Darren represented clients, associated in a law
practice with his brother, and even accepted employment as a deputy
prosecutor. By so doing, he violated Prof.Cond.R. 5.5(a) by practicing
law in a jurisdiction where doing so violated the regulation of the legal
profession in that jurisdiction.
V. Sanction
Having found misconduct, we must now assess appropriate discipline.
In so doing, we consider the nature of the misconduct and any mitigating or
aggravating factors. We also examine the facts surrounding the misconduct,
the respondents’ states of mind, the duties which were violated, the actual
or potential injury to clients, and the risk to the public. Matter of
Drozda, 653 N.E.2d 991 (Ind. 1995). The hearing officer recommended a 30
day suspension for Darren and a public reprimand for Scott.
Scott’s transgressions consisted of knowing false lawyer advertising.
For first offenses, advertising violations have usually resulted in
private reprimands. See, e.g., Matter of Anonymous, 689 N.E.2d 434 (Ind.
1997) (advertisement that identified lawyer as “specialist” where lawyer
not certified as such). Given the circumstances attendant to Scott’s
misconduct, we conclude that a public reprimand is appropriate. Darren’s
transgressions were more numerous and, because they included a disingenuous
response to the Commission and his failure to abide by licensing
requirements, require a more stringent sanction. Accordingly, we conclude
that a thirty-day suspension is appropriate.
It is, therefore, ordered that Scott C. Cole is hereby reprimanded and
admonished for the misconduct set forth herein.
It is ordered further that Darren T. Cole be suspended from the
practice of law in this state for a period of thirty (30) days, beginning
December 18, 2000, at the conclusion of which he shall be automatically
reinstated.
The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc. R. 23(3)(d) and to provide the clerk of the
United States Court of Appeals for the Seventh Circuit, the clerk of each
of the Federal District Courts in this state, and the clerk of the United
States Bankruptcy Court in this state with the last known address of
respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against respondent.
-----------------------
[1] Indiana Professional Conduct Rule 1.7 provides:
(a) A lawyer shall not represent a client if the representation of
that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not
adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of
that client may be materially limited by the lawyer's responsibilities
to another client or to a third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after consultation. When representation of
multiple clients in a single matter is undertaken, the consultation
shall include explanation of the implications of the common
representation and the advantages and risks involved.
We note that in its charges, the Commission alleges that Darren’s
defense of the alleged delinquent violated Prof.Cond.R. 1.10(a), which
imputes Scott’s Prof.Cond.R. 1.7 conflict of interest (due to his capacity
as a deputy prosecutor) to Darren based on their private law practice
association. We find such a violation, but also find Darren’s direct
conflict described above.
[2] On August 12, 1996, Darren filed a petition in Hendricks Circuit
Court to establish a restricted drivers license on behalf of a client he
represented privately. Statute requires the prosecuting attorney of the
county where the petitioner resides be named as a defendant. Darren named
the prosecuting attorney of Hendricks County as a defendant in the case,
along with the county sheriff and the commissioner of the Indiana Bureau of
Motor Vehicles. On August 26, 1996, Darren appeared in court representing
the petitioner seeking a restricted drivers license.
The Commission charged, and the hearing officer found, that by
representing the client while serving as a deputy prosecutor, Darren
violated Prof.Cond.R. 1.8(k), which prohibits a part-time prosecutor or
part-time deputy prosecutor authorized by statute to otherwise engage in
the practice of law from representing a private client in any matter
wherein exists an issue upon which said prosecutor has statutory
prosecutorial authority or responsibilities. Indiana Code Section 9-24-15-
4 provides that a verified petition for issuance of a restricted driver’s
license because of hardship must be filed in the circuit court of the
county in which the petitioner resides, and that the prosecuting attorney
of that county shall appear and be heard by the court in the petition.
Since the office of the prosecuting attorney of Tippecanoe County had no
statutory prosecutorial responsibility in the non-criminal hardship license
case pending in Hendricks County, we conclude that under the specific
language of Prof.Cond.R. 1.8(k) no violation occurred. However, based on
the analysis pertaining to the respondent’s representation of the alleged
delinquent, Darren’s representation of the petitioner may have violated
Prof.Cond.R. 1.7, had such a violation been charged.