March 2009

This is an unusual and unique case to see in a disciplinary context. The primary issue for the Supreme Court of Indiana was whether a part-time Public Defender, James R. Recker, and another part-time Public Defender, Laura Paul, were "associated in a firm" at the time of the relevant events such that Paul's client could also deemed to be Recker’s client.

Indiana’s Putnam County has no centralized public defender office. Instead, indigent defense services are provided when a trial court appoints a part-time public defender to represent a client. Recker, of Indianapolis, was appointed to serve as a part-time public defender by the Putnam County Circuit Court. The Putnam Superior Court appointed Paul, of Terre Haute, to serve in a similar capacity. Both Recker and Paul maintained respective independent private practices.

Putnam County provided office space in the old law library of its courthouse for attorneys providing indigent defense services. In part, due to budgetary constraints, the office had no doors on its cubicles and only one incoming phone line. The county provided office stationery that listed both the Circuit Court and the Superior Court and printed the words “Office of the Public Defender” (“PD”) on its letterhead. The stationery did not list the names of any specific attorney. Part-time secretarial assistance was provided by court employees hired by the judges. The “office manager” of the office was one of the secretaries. Files were kept in a central location. The office manager allowed a file to be checked out only by attorneys who had entered an appearance in a particular case. The Public Defender’s Office in Putnam County had no established policies or procedures relating to potential or actual conflicts of interest.

In 2004, Recker was appointed to represent an indigent client, Jeremy Farris, in a criminal case where Farris had been charged in the death of his girlfriend’s four-year-old son. He was also appointed to represent Farris in a Child in Need of Services (“CHINS”) hearing involving Farris’ own child. At the time of the appointment, Recker had been licensed in Indiana approximately four years. Subsequently, Farris retained a private attorney, James H. Holder Jr., for the criminal matter, but Recker continued to represent Farris in the CHINS proceeding. Meanwhile, Paul was appointed to represent a criminal defendant, Manuwell T. Ross, in Superior Court. Farris and Ross were housed together with at least one other person in a holding cell in the Putnam County jail.

In 2005, Timothy Bookwalter, the Putnam County Prosecutor, met with Paul at the PD’s office space. Recker was not present in the office at the time of the meeting. Bookwalter told Paul that Paul’s client, Ross, had passed a note to the Sheriff stating that Recker’s client, Farris, had told Ross some incriminating details about the death of the four-year-old. Ross told the Sheriff that he wanted to speak with Paul before revealing more information. Paul believed the prosecutor was offering a deal to her client in exchange for providing information about Recker’s client. When Recker returned to the PD’s office, Paul told him of her conversation with the prosecutor and asked his advice about the matter. During their discussion, she revealed Farris’ name, but not the name of her client, Ross. Paul was then unaware that Recker represented Farris in his capacity as a public defender in the CHINS proceeding. Recker believed that Paul was representing a private client and not an indigent individual.

After the conversation with Paul, Recker contacted Holder, and told him that Farris had been talking about the killing to his cellmates. Holder then contacted Farris and related the information he learned from Recker. Farris opined that Ross was the jail house snitch. Later, Bookwalter, the prosecutor, learned that Farris suspected Ross of being an informer. Upset, Bookwalter immediately caused Ross to be removed from Farris’ jail cell and confronted both Paul and Recker about the situation. He first approached Paul and asked her, “How did this happen?” He asked Recker three or four times whether he had contacted Holder, but Recker told the prosecutor that he did not have to answer his questions.

Eventually, Farris was tried and convicted of murder. Ross testified against Farris at trial and provided testimony on two key points that the State had not otherwise been able to establish. 

The Indiana Supreme Court Disciplinary Commission filed a disciplinary complaint against Recker charging him with violating the following Professional Conduct Rules.

• 1.6(a), which prohibits revealing information relating to the representation of a client without the client’s informed consent;
• 1.8(b), which prohibits using information relating to the representation of a client to the disadvantage of the client without the client’s informed consent as imputed by Rule 1.8(k); and
• 1.8(k), which provides that while lawyers are associated in a firm, certain prohibitions that apply to one of them apply to all of them.

Essentially, the disciplinary authority argued that once Recker became aware that Ross was adverse to Farris, he had an untenable conflict of interest and was obligated to withdraw from representing Farris without revealing Ross’ confidences. Further, the conflict was non-consentable. The conflict could have had disastrous consequences as Recker’s revelation to Holder put an innocent person, Ross, who was Recker’s client by imputation, at risk of death or serious bodily injury.

After reviewing the evidence, a hearing officer concluded that Recker did not engage in misconduct because Paul and Recker were not members of a law firm for purposes of imputing the conflict. As a result, owed no duty to Ross when he communicated information he had learned from Paul to Holder.

The Commission filed a petition for review to the Indiana Supreme Court. The Commission argued that the hearing officer erred as a matter of fact and law in his findings. The Commission suggested that the issue regarding the Public Defender’s Office being considered a “law firm” was not merely theoretical as Recker’s disclosure to Holder placed Ross, the informer, at risk of death or substantial bodily injury. The Commission further asserted that the hearing officer failed to consider the firmly established principle that two or more attorneys are a law firm for certain discreet purposes, namely maintaining confidential information related to the representation of all of the firm’s clients, and for the purpose of imputing conflicts of interest. The Commission averred that the hearing officer ignored the Court’s precedent in Matter of Sexson , 613 N.E.2d 841 (Indiana 1993). In Sexson, the Court held that if attorneys “present themselves to the public in a way that suggests they are a firm, or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules.”  In Sexson , the Court ruled that certain attorneys were indeed associated in a law firm because they used a common letterhead, shared phone lines, had apparent access to each other’s information, and shared office personnel. In Sexson , the Court said that it was reasonable to assume that a client could conclude that the attorneys were part of a “firm.” The Commission saw Sexson as being closely analogous to the Recker situation. The hearing officer, however, concluded that the principal secretary of the Public Defender’s office, the “office manager,” was something like an “uber gatekeeper” (the Commission’s characterization) of all confidential client files; thus, neither Paul nor Recker had access to confidential information related to each other’s cases. The Commission countered by stating that this finding, if adopted by the Court, would mean that groups of lawyers sharing office space could avoid the application of the ethics rules simply by promising to stay out of each other’s files. At any rate, the Commission argued, since Paul and Recker shared a secretary, they each had potential, indirect access to the information in all of each other’s files. The secretary had access to all client files, and she served them both.

The Commission advocated the position that indigent defendants should be secure in believing that that information received by their public defender would never be used to their disadvantage (except as permitted or required by the professional discipline rules) by a fellow public defender in the same office without the client’s informed consent. The Commission argued that it was absurd to believe that an inexperienced attorney, Paul, sharing office space with a more seasoned attorney, Recker, would not also share client confidences. If adopted, the hearing officer’s approach would functionally prohibit an inexperienced public defender from ever consulting with an officemate.

Finally, the Commission made clear that it was not asserting that any violation of the attorney client privilege had occurred between Paul and her client. Paul received the information she revealed to Recker from the prosecutor, who was not her client. The information that she imparted to Recker was confidential, however, under IRPC Rule 1.6.  Therefore, Recker should have maintained confidentiality as a member of the same “firm” as Paul.

The Court, in a per curiam opinion, concluded that Paul and Recker were not part of the same firm when reviewing the facts presented here. For example, though the common space, staff, letterhead, and unitary phone line might in some circumstances tend to give the impression that Recker and Paul constituted a firm, Recker and Paul had no say in their working arrangement. The office was provided to them by the Putnam County Courts. They did not hold themselves out for business of any sort to members of the public at the office location. The Court accepted the hearing officer’s finding that attorneys in the PD’s office only had access to the information in the specific files of the clients that they represented. Therefore, the Court held, this case was distinguishable from the circumstances of Sexson . Recker and Paul were not deemed by the Court to be members of the same law firm, at least when considering that information acquired by one lawyer in a firm is automatically imputed to another lawyer in the firm.

The Court cautioned that, even if attorneys are considered to be practicing independently, they must take care not to disclose confidential information about their client with another lawyer. Attorneys sharing office space may benefit from consulting with one another about legal issues, but this can be done ethically only after determining that the interests of both attorneys’ clients are not compromised. The Court expressed no opinion as to whether Paul violated her duty to her client, because the issue was not before the Court. The Court also expressed no opinion as to whether Recker had a duty to try to prevent Paul from disclosing confidential information to Recker, because Recker was not charged with wrongdoing in that regard. Fundamentally, Recker could not improperly compromise Paul’s client’s interests because Paul’s client information could not be imputed to be Recker’s based on a “firm” relationship. The Court found the hearing officer’s findings to be supported by the evidence and agreed with his conclusion. It ruled Recker engaged in no conflict of interest and did not breach any confidentiality. 

Justice Sullivan dissented from the majority opinion, offering that the relevant standard should be a “reasonable client belief” (rather than a reasonable lawyer belief) that attorneys were associated in a “law firm”. The Justice said that a reasonable client would have believed that the Public Defender’s Office was a firm based upon the operating details of the PD’s office in this matter. In Justice Sullivan’s view, the Court would not have to apply the “reasonable client” test to this case to reach a different result. Paul, an attorney, must have thought she was in the same firm as Recker or she wouldn’t have disclosed confidential information to him. The dissent quoted a passage from an old law review article, Maurice Hines Alford Comment, Public Defender’s Office is a ‘Law Firm’ for Purposes of Determining Whether Conflict Exists in Representation of Codefendants , 5 Fla. St. L. Rev, 492, 504-05 (1977):

The close association of the attorneys in the public defender’s office makes it possible that confidential information will be inadvertently circulated. The necessity of utilizing the services of the same investigator, the inevitable discussions occurring in the office among the attorneys, and the overlapping sources of information from identical witnesses all contribute to this possibility.

 Justice Sullivan mentioned that many jurisdictions have adopted this position as a rule of criminal procedure. He offered Commonwealth v. Green , 550 A. 2d 1011 (Pa.Super. 1988) as one example. He concluded by noting, “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.”

The case is In re James R. Recker , No. 49S00-0506-DI-302, (Indiana March 11, 2009).

RICHARD S. THOMAS, COUNSEL, ILLINOIS ARDC &
JAMES J. GROGAN, DACC, ILLINOIS ARDC