Hello everyone and welcome to this Ethics Alert which will discuss the recent Indiana Supreme Court opinion suspending a lawyer for 4 years for eavesdropping on confidential attorney/client conversations with no automatic reinstatement. The case is In the Matter of Robert Neary, No. 46S00-1512-DI-705 (Ind. SC), and the November 6, 2017 disciplinary opinion is here: http://www.in.gov/judiciary/opinions/pdf/11061701per.pdf
The Indiana Supreme Court Disciplinary Commission filed a two-count disciplinary complaint against the lawyer on December 17, 2015, and later amended the complaint. The amended complaint charged the lawyer with “professional misconduct in connection with his actions in two criminal cases while serving as the chief deputy prosecutor in LaPorte County (Michigan).”
The first count of the complaint alleged that the prosecutor had surreptitiously watched video feeds of an attorney/client confidential conversation in March 2014 at the Michigan City Police Department. A defense lawyer had flipped a switch that was supposed to prevent the conversation from being recorded; however, the police controlled the live video and audio.
The lawyer and police detectives watched the conversation from the police station’s “war room.” During the conversation, the defendant (Taylor) told his lawyer where a gun could be found. The lawyer advised the police detectives not to recover the weapon; however, they ignored his advice and recovered the weapon.
The chief of police later learned of the recording and told the lawyer that he should provide the information the defendant’s counsel. The lawyer subsequently provided the information to the defendant’s lawyer and also reported his misconduct to the Indiana Bar authorities.
The second count alleged that the lawyer listened to an attorney/client confidential conversation that was recorded in December 2012 at the Long Beach (Michigan) Police Department. The defendant (Larkin) had agreed to speak with police with his lawyer present, in exchange for being charged with voluntary manslaughter rather than murder.
During an 11-minute break in the questioning, the defendant discussed defense strategy and other confidential matters with his lawyer; however, the recording system was not turned off. The lawyer viewed the recorded interview that included the attorney/client confidential discussion during the break about a month later.
According to the opinion, “Respondent first viewed the DVD of the interview, including the break discussion, about one month later. Respondent watched the entire break discussion even though the privileged status of that discussion either was, or should have been, immediately apparent to Respondent. Respondent provided a copy of the DVD, including the break discussion, to Larkin’s counsel but did not mention to counsel that the break discussion had been recorded.”
The Larkin’s lawyer later filed a motion to dismiss the voluntary manslaughter charge alleging prosecutorial misconduct because of the recording of the discussion. The lawyer’s response, which was sealed, provided the contents of the break discussion and included the written transcript and a DVD. A judge later unsealed sealed the information.
The opinion noted that both of the cases had led to appeals and stated that the lawyer’s conduct had “fundamentally infringed on privileged attorney-client communications and, at an absolute minimum, has caused significant delays and evidentiary hurdles in the prosecutions of Taylor and Larkin, even assuming they still can be prosecuted at all.” The court had reviewed the Taylor matter on appeal and described the eavesdropping as “egregious,” “flagrant,” “unconscionable,” “shameful,” “abhorrent” and “reprehensible.”
After a hearing, the hearing officer found that the lawyer had committed the Bar rule violations charged in the amended complaint and recommended a sanction ranging from a four-year suspension to disbarment. The Indiana Bar Commission recommended disbarment.
According to the opinion: “(i)n many respects, these proceedings have painted an even more alarming picture of Respondent, in that they show Respondent gradually has retreated from his initial self-report to the Commission and has given evasive and inconsistent explanations and statements regarding the war room eavesdropping. As aptly found by the hearing officer, ‘Respondent’s ever evolving narrative points to a lack of honesty.’”
The opinion further states: “(t)he severity of the misconduct and Respondent’s repeated transgressions certainly lend support to the notion that he should be disbarred. On the other hand, Respondent has no prior discipline, he self-reported his conduct to the Commission, and several persons testified to his good reputation in the community (although, as noted by the hearing officer, these persons did not appear to have been particularly well informed of the circumstances giving rise to these disciplinary proceedings). At the end of the day, these considerations persuade us that the door should not permanently be closed on Respondent’s legal career and that he should be afforded an opportunity at an appropriate juncture to prove by clear and convincing evidence his professional rehabilitation and fitness to resume practicing law.”
Bottom line: This prosecutor was involved in two separate serious violations of attorney/client confidentiality by viewing and listening to surreptitious recordings and clearly should have known better. In my opinion, the lawyer was extremely fortunate that he avoided disbarment for his misconduct.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
www.jac-law.com
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ABA Formal Opinion 480 addresses lawyer/client confidentiality obligations related to lawyer blogs and other public commentary
Hello everyone and welcome to this Ethics Alert which will discuss ABA Formal Opinion 480, which was released on March 6, 2018 and addresses lawyer ethics and confidentiality obligations when engaging in blogging and other public commentary. The ABA Formal Opinion is here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_480.authcheckdam.pdf
The opinion initially sets forth the various types of lawyer public communications and commentary, including online publications such as blogs, listserves, online articles, website postings, and brief online statements or microblogs (such as Twitter®) that ‘followers’ (people who subscribe to a writer’s online musings) read. Lawyers continue to present education programs and discuss legal topics in articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews. They also make public remarks in online informational videos such as webinars and podcasts (collectively ‘public commentary’).”
The opinion provides important information regarding the broad scope of lawyer/client confidentiality under the rule, the limited exceptions to the rule, and whether a lawyer can pose a “hypothetical” to avoid violating the rule. The information is below with relevant portions in bold:
This confidentiality rule “applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” In other words, the scope of protection afforded by Rule 1.6 is far broader than attorney-client privileged information.
Unless one of the exceptions to Rule 1.6(a) is applicable, a lawyer is prohibited from commenting publicly about any information related to a representation. Even client identity is protected under Model Rule 1.6. Rule 1.6(b) provides other exceptions to Rule 1.6(a). However, because it is highly unlikely that a disclosure exception under Rule 1.6(b) would apply to a lawyer’s public commentary, we assume for this opinion that exceptions arising under Rule 1.6(b) are not applicable.
Significantly, information about a client’s representation contained in a court’s order, for example, although contained in a public document or record, is not exempt from the lawyer’s duty of confidentiality under Model Rule 1.6. The duty of confidentiality extends generally to information related to a representation whatever its source and without regard to the fact that other may be aware of or have access to such knowledge.
A violation of Rule 1.6(a) is not avoided by describing public commentary as “hypothetical” if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.
The opinion concludes that “(l)awyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.”
Bottom line: This ABA opinion addresses the ethics issues related to lawyer blogs and public commentary and client confidentiality and provides guidance. The opinion is not binding; however, it provides important information and the analysis is applicable in most, if not all jurisdictions, including Florida. Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
www.jac-law.com
about.me/corsmeierethicsblogs
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