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Tuesday, June 22, 2010

Ind. Decisions - Supreme Court agrees with hearing officer that attorney who cited vacated opinion did not engage in professional misconduct

In In re Jack Rogers, a published judgment in favor of respondent, dated June 21, 2010 and posted this afternoon, signed by CJ Shepard with all justices concurring, the charge was:

Charge: The Commission alleges that Respondent violated Professional Conduct Rule 3.3(a)(1), which prohibits knowingly making a false statement of law to a tribunal and/or failing to correct a false statement of law previously made to the tribunal by the lawyer.

Facts: While representing a criminal defendant at a suppression hearing, Respondent cited a Court of Appeals opinion that had been vacated and replaced by a decision by the Indiana Supreme Court. The case was Trimble v. State, 816 N.E.2d 83 (Ind. Ct. App. 2004), vacated, 842 N.E.2d 798 (Ind. 2006). The hearing officer in this case found Respondent to be credible when he testified that he had not knowingly cited incorrect law and did not intend to mislead the trial court. The hearing officer concluded the Commission had failed to produce clear and convincing evidence that Respondent violated Rule 3.3(a)(1) and recommended that the Court enter judgment in favor of Respondent. The Commission did not file a petition for review.

The hearing officer appointed by the Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," was the Honorable Kenneth H. Johnson. His reported was unchallenged. The Supreme Court writes:
Accordingly, we accept the hearing officer's findings of fact, and on those findings we conclude that Respondent did not engage in professional misconduct. The Court therefore enters judgment for Respondent.
The ILB asked IU-Indy Law Prof Joel Schumm for his thoughts on the ruling. Schumm responded:
The factual findings of the hearing officer seem particularly significant in cases like this. If Judge Johnson had found the respondent was not credible, he would surely have found a violation--and the Indiana Supreme Court would have affirmed.

I wish we knew more of the specific facts. If a lawyer uses Westlaw or Lexis, this should never happen. Lexis shows a red stop sign and references the Indiana Supreme Court case at the top of the opinion. Westlaw shows a red flag and notes transfer was granted. Although I preach about this to first-year law students, every year at least one will cite a vacated opinion.

Was the lawyer using the books and did not Shepardize or KeyCite the case? Or did he not know the significance of a grant of transfer? Ethical violation or not, this is poor advocacy for a client and seems likely to harm a lawyer's credibility with the judge and opposing counsel.
I agree with Professor Schumm. It would be beneficial to other attorneys, and to law students, to see the details of Judge Johnson's report.

Posted by Marcia Oddi on June 22, 2010 06:30 PM
Posted to Ind. Sup.Ct. Decisions