Indiana Law Review


Survey of the Law of Professional Responsibility

You Say You Want an Evolution?:
An Overview of the Ethics 2000 Amendments
TO THE Indiana Rules of Professional Conduct

Donald R. Lundberg'
Charles M. Kidd**

Introduction^

The Indiana Supreme Court rarely makes sweeping changes to the rules
governing professional conduct by lawyers. Indiana's original Code of
Professional Responsibility became effective in 1 97 1 and was based on the ABA
Model Code of Professional Responsibility. Sixteen years later the Code was
revised again. Modeled on the ABA Model Rules of Professional Conduct, the
Indiana Rules of Professional Conduct went into effect on January 1, 1987.

Again drawing on an ABA-created template, the Indiana Supreme Court, based
in large part on the sweeping work of the Indiana Ethics 2000 Task Force,
amended the Rules of Professional Conduct, effective January 1, 2005. The
amended rules are available on-line^ and in the 2005 Indiana Rules of Court?
The amended rules are also available showing changes to the rules, but not the
comments, in redlined format."^ The new rules present lawyers with a third set
of significant changes within a period of approximately thirty-five years.

The new rules affect virtually every Indiana lawyer in every law practice
setting, and so it is prudent for all lawyers to have a keen understanding ofthese

changes. Where it mightbe useful to the reader in understanding the significance
of the Indiana rules, this article will discuss differences between the Indiana

Rules of Professional Conduct and the ABA Model Rules of Professional
Conduct. Where pertinent, it will also track the evolution ofchanges throughout
both the ABA and Indiana Ethics 2000 processes.

I. Background

In the spring of 1997, ABA leadership created the Commission on the

* Executive Secretary, Indiana Supreme Court Disciplinary Commission. The views stated

herein are those of the author and do not necessarily reflect the views of the Indiana Supreme Court

or the Indiana Supreme Court Disciplinary Commission.
** Staff Attorney, Indiana Supreme Court Disciplinary Commission.

1. The summary of the Indiana Supreme Court's recent changes to Indiana's Rules of

Professional Conduct was first published in the Indiana State Bar Association's Res Gestae as a

four-part series from November 2004 to March 2005. It is republished here with permission ofRes

Gestae.

2. 5'eehttp://www.in.gov/judiciary/rules/prof_conduct/index.html(lastvisited Apr. 7, 2005)

3

.

2005 Indiana Rules of Court (Thomson West 2005).

4. Order Amending Rules of Professional Conduct (Sept. 2004), available at http://www.

in.gov/judiciary/orders/rule-amendments/2004/0904-prof-conduct.pdf.



1256 INDIANA LAW REVIEW [Vol. 38:1255

Evaluation of the Rules of Professional Conduct, dubbed the "Ethics 2000
Commission" in recognition of the anticipated completion of its work near the
turn of the millennium. Its mission was to conduct a comprehensive evaluation
of the ABA Model Rules in light of developments since their original adoption
in 1983.^ After several years of study and taking testimony at hearings held

throughout the United States, the Commission made a final report to the ABA
House of Delegates in August 2001.^ After partial consideration of and action
on the Commission's report that summer, the House approved changes to the
ABA Model Rules in February 2002, and, with a few exceptions, adopted the
Commission's proposals.^

Partially paralleling the Ethics 2000 process and responding to recent
corporate finance scandals, the ABA president in the spring of 2002 appointed
a Taskforce on Corporate Responsibility. Part ofthe charge to the Taskforce was
to examine the ethical principles governing lawyers for corporate and other

organizational clients.^ On March 3 1 , 2002, the taskforce issued its final report,
which included recommendations to the House of Delegates to amend ABA
Model Rules ofProfessional Conduct 1 .6, dealing with client confidentiality, and
1.13, dealing with organizational clients.^ Similar amendments to Rule 1.6 had
originally been proposed to the ABA House of Delegates by the Ethics 2000
Commission, but rejected by the House. ^^ At its August 2003 meeting, the ABA
House of Delegates approved the Corporate Responsibility Taskforce 's
amendments to Rules 1.6 and 1.13.^^

On August 16, 2002, shortly after the ABA House ofDelegates' final action
on the Ethics 2000 Commission report, Indiana ChiefJustice Randall T. Shepard
wrote to then-ISBApresident, Kristin Fruehwald, urging the state bar to study the
results of the Ethics 2000 process and make its recommendations to the Indiana
Supreme Court. '^ President Fruehwald appointed Carol Adanamis, chair of the
state bar Legal Ethics Committee, to chair an Ethics 2000 Taskforce charged with

reviewing the Indiana Rules ofProfessional Conduct in light ofthe amendments
to the ABA Model Rules. The Indiana Taskforce's five committees were each

5. Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct;

Summary of the Work ofEthics 2000, 15 Geo. J. LEGAL ETHICS 441, 441-42 (2002). Materials

related to the work ofthe Ethics 2000 Commission are available on the website ofthe ABA Center
for Professional Responsibility at: http://www.abanet.org/cpr/ethics2k.html.

6. Love, supra note 5, at 443.

7. Id

8

.

Report ofthe American Bar Association Task Force on Corporate Responsibility 2 (Mar.

31, 2003), available at http://www.abanet.org/buslaw/corporateresponsibility/final_report.pdf

[hereinafter ABA Task Force Report].
9. Id at 77.

10. Love, supra note 5, at 443.

1 1

.

American Bar Ass'n House of Delegates Daily Journal, 2003 Aimual Meeting 12 (Aug.

11-12, 2003), available a/' http://www.abanet.org/leadership/2003/2003joumal.pdf

12. Letter from ChiefJustice Randall T. Shepard to Kristin G. Fruehwald, President, Indiana

State Bar Association (Aug. 16, 2002) (copy on file with the author).



2005] PROFESSIONAL RESPONSIBILITY 1257

assigned to examine different parts of the ABA Model Rules. ^^ The further
changes to the ABA Model Rules prompted by the ABA Taskforce on Corporate
Responsibility were also incorporated into the Indiana project. Following

publication of the Indiana Taskforce's draft recommendations, the state bar

hosted five roundtable discussions throughout the state. After taking account of

written and oral comments, the Indiana Taskforce submitted its report and

recommendations to the ISBA House of Delegates. On October 23, 2003, the
House of Delegates adopted the taskforce recommendations with a few
exceptions that will be noted later in this Article. The ISBA formally transmitted
its proposal to Chief Justice Shepard on December 2, 2003. On February 25,
2004, the supreme court published the state bar's proposed amendments on its
website and invited comments. Seven months later, on September 30, 2004, the

supreme court issued an order amending the Indiana Rules of Professional

Conduct, effective January 1, 2005.

IL The Preamble AND Scope

A. Civility Concerns

The supreme court made a number of changes to the introductory portions
of the Indiana Rules of Professional Conduct, the Preamble and Scope, that are

worthy ofdiscussion. In these sections, the court departed from the ABA Model
Rules in ways suggesting that it is quite serious about incorporating notions of
professionalism and civility into the Indiana Rules. The first indicator is found
in new language in paragraph [ 1 ] ofthe Indiana Preamble, which does not appear
in either the ABA Model Rules or the old Indiana or ABA rules: "Whether or not
engaging in the practice of law, lawyers should conduct themselves honorably."

Another iteration ofthis theme is found in paragraph [8] ofthe Indiana Preamble,

where our supreme court replaced the word "zealous" that appeared in the
previous version of the Preamble, and that still appears in the Preamble to the

ABA Mode Rules, with the word "effective. "^"^ This theme appears again in the
supreme court's redaction of the word "zealously" from Preamble paragraph

[9] .
^ ^ Thematically related to these Indiana variations, in Comment [ 1 ] to Indiana

13. The coverage of the five committees and their chairs were:

Preamble, Scope, Rules 1.0-1.5, 1.15-1.17,2 and 9; chair, Robert Clemens of Indianapolis

• Rules 5 and 6; chair, John Conlon of Indianapolis

• Rules 1.6, 1.18 and 4; chair, Douglas Cressler, formerly of Indianapolis, now of Denver,

Colorado

• Rules 3, 7 and 8; chair, Patricia McKinnon, of Indianapolis

• Rules 1.7-1.14; chair, Ted Waggoner, of Rochester, Indiana.

1 4

.

The applicable sentence, showing the change from the current and previous ABAversions
and previous Indiana version, reads: "Thus, when an opposing party is well represented, a lawyer

can be an effective zealous advocate on behalf of a client and at the same time assume that justice

is being done."

1 5

.

The following language was incorporated intact into the Indiana Preamble from the ABA



1258 INDIANA LAW REVIEW [Vol. 38: 1255

Rule 1 .3, the supreme court redacted language that appears in the corresponding
ABA comment that refers to "zeal in advocacy."^^

B. Retention ofIntermediary Rule

The ABA Model Rules eliminated old Model Rule 2.2, dealing with the
lawyer as an intermediary, in favor of addressing that role as a type of multiple

client representation covered by Model Rule 1.7. But the Indiana Supreme Court
retained old Rule 2.2, which was identical to now-defunct ABA Model Rule 2.2.
Indiana's different approach is foreshadowed by the retention of language in
Preamble paragraph [2], now missing from the ABA rules, that refers to the
lawyer's role as an intermediary between or among clients.'^ The possible
significance of Indiana's retention of Rule 2.2 will be covered, infra, in the

discussion of that rule.

C Lawyers As Neutrals
Paragraph [3] of the Indiana and ABA Preambles is new language

recognizing that lawyers often function as third-party neutrals in alternative

dispute resolution proceedings. It points out that certain rules have a direct

bearing on third party neutrals, including amended Rule 1.12, which now applies
the same conflict of interest standard to former third-party neutrals as it does to
formerjudges, and new Rule 2.4, which establishes certain ethical standards for
lawyers who function as third-party neutrals. This paragraph also explicitly
states that which has always been understood: that some of the rules,
preeminently Rule 8.4, govern the conduct of lawyers even when they are not
representing clients.

D. Public Service Responsibilities

Language added to paragraph [6] of the Indiana and ABA Preambles urges
lawyers to "further the public's understanding of and confidence in the rule of

Preamble, save the word "zealously," which is shown here as stricken-through: "These principles

include the lawyer' s obligation zealously to protect and pursue a client' s legitimate interests, within

the bounds of the law, while maintaining a professional, courteous and civil attitude toward all

persons involved in the legal system." IND. PROF. COND. R. pmbl.

16. The Indiana version of Comment [1] to Rule 1.3 differs from the corresponding ABA
comment in the following respect, with the Indiana redactions stricken-through: "A lawyer must

also act with commitment and dedication to the interests of the client and with zeal in advocacy

upon the client's behalf." Continuing in the same comment, both the Indiana and ABA versions
emphasize that the lawyer has discretion to place limits on how far he or she is willing to go as an

advocate: "A lawyer is not bound, however, to press for every advantage that might be realized for

a client." iND. Prof. Cond. R. 1.3 cmt. 1.

17. The retained language states: "As intermediary between clients, a lawyer seeks to

reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each

client." iND. Prof. Cond. R. pmbl.



2005] PROFESSIONAL RESPONSIBILITY 1259

law and the justice system," and expands somewhat upon the rationale for and

reach ofpro bono responsibilities by stating that lawyers "should" ensure equal

access to justice for those who are hampered by economic or social barriers.
^^

E. Application ofthe Rules in Other Settings

Paragraph [20] of the Scope portion of the Preamble has been reworked

somewhat (generally consistent with the ABA model) to emphasize two points.
First, new language points out that violation of a rule does not necessarily mean
that another non-disciplinary remedy is appropriate.*^ Also, in acquiescence to

the growing body ofauthority that looks to the Rules ofProfessional Conduct as

articulating duties and responsibilities relevant to the question of whether a

lawyer has violated the applicable standard ofcare for civil liability purposes, the

supreme court deleted language intended to preclude such use, and instead added

the following language: "[These rules] are not designed to be a basis for civil

liability, but these Rules may be used as non-conclusive evidence that a lawyer
has breached a duty owed to a client. ^^^^ . . . Nevertheless, since the Rules do
establish standards of conduct by lawyers, a lawyer's violation ofa Rule may be
evidence of breach of the applicable standard of conduct."^*

Old Preamble paragraphs [ 1 9] and [20] were removed in both the Indiana and

ABA versions. Old paragraph [19] was largely a restatement of the truism that
the rules pertaining to client confidentiality and the law governing attorney-client

and work product privileges are separate, albeit interactive, matters. Thus,
commentary about the attorney-client privilege was not seen as germane to the

Rules of Professional Conduct. Old paragraph [20] stated: "The lawyer's

18. In a related development, the supreme court also amended the Oath of Attorneys on

September 30, 2004, to add the following new language, effective January 1, 2005: "I will never

reject, from any consideration personal to myself, the cause of . . . those who cannot afford adequate

legal assistance." IND. Admis. Disc. R. 22 (2005).

19. Indeed, we have recently seen this point illustrated in Indiana, where the Indiana Court

ofAppeals in Gerald v. Tumock Plumbing, Heating and Cooling, LLC, 768 N.E.2d498 (Ind. Ct.

App. 2002) stated that a law firm can avoid disqualification by erecting timely institutional

protections to screen offa laterally hired lawyer from involvement with a matter concerning which

the lateral hire has a disqualifying conflict of interest. This was at the time, of course, not an

accurate statement of the applicable Rule of Professional Conduct Rule 1.10(b). This perceived

disconnect between the law of lawyer discipline and the law of disqualification has now been

resolved by the Indiana Supreme Court's adoption ofa rule allowing timely screening under these

circumstances. See Ind. Prof. Cond. R. 1.10(c) and cmt. 6 thereto.

20. This sentence in Indiana Preamble paragraph [20] differs in emphasis, ifnot in substance,

from the parallel ABA Preamble paragraph [20], which reads: "[These rules] are not designed to
be a basis for civil liability, but reference to these Rules as evidence of the applicable standard of

care is not prohibited." The Indiana Supreme Court appears to have affirmatively approved the use

of the Rules of Professional Conduct as one source of evidence of the standard of care in legal

malpractice cases. The source of this different language was the ISBA proposal.

2 1

.

Ind. Prof. Cond. R. pmbl.



1260 INDIANA LAW REVIEW [Vol. 38: 1255

exercise of discretion not to disclose information under Rule 1.6 should not be
subject to reexamination. Permitting such reexamination would be incompatible
with the general policy of promoting compliance with law through assurances

that communications will be protected against disclosure." The significance of
the elimination of this language is lost on this author. The reference to Rule 1 .6
clearly signifies that lawyers should not be second-guessed about when to
exercise discretion to reveal client confidences when permitted under the
exceptions found in Rule 1.6(b). While this is true to the extent that the rule
itself makes that decision discretionary, it is also possible that other law,
particularly in a corporate regulatory environment, might impose a duty to

disclose when the rules give discretion.

F. Definitions Relocated

A final change to the Preamble was the relocation of the definitions of key
terms from the Preamble to a new Rule 1 .0. In a sense, the creation of a rule that
does nothing but define terms is illogical. On balance, however, the elevation of
these important definitions to rule status will remove them from their historical
hiding place in the Preamble and put them in a location where they are more
prominent.

III. Terminology—Rule 1.0
In all respects but one, the definitions ofkey terms used throughout the new

Indiana rules are identical to the definitions in the ABA rules. Except for their
relocation from the Preamble to Rule 1 .0, some definitions remain the same as
the old rules, and there is no need to comment further. The definitions ofcertain
now-defunct terms were eliminated. Other definitions were amended, and

additional definitions were included to define terminology new to the rules.

A. Client Consent and Related Documentation

The nomenclature of the old rules, when referring mostly to client consent
to a lawyer's actions, was to require "consent after consultation." Therefore, the
old definition of "consult" or "consultation" has been eliminated. It was
abandoned in favor of the new concept of "informed consent," defined in Rule
1.0(e). The notion of informed consent finds its way into the rules at many
points, often in the context of conflict of interest waivers.^^ Because it is a new
definition, it has new comments as well which are found in Comments [6] and

m.

22. A non-exhaustive list of rules where the notion of informed consent appears includes:
Rules 1 .2(c) (limitations on the scope ofrepresentation), 1 .6(a) (revelation ofotherwise confidential

client information), 1.7(b)(4) (waivers of concurrent conflicts of interest), 1.8(a) (financial

transactions between lawyer and client), 1 .8(b) (use ofinformation to client's disadvantage), 1 .8(f)

(accepting compensation from a third party). Rule 1 .8(g) (aggregate settlements), 1 .9 (former client

conflicts of interest), and 1 .18(d) (representation adverse to a former prospective client).



2005] PROFESSIONAL RESPONSIBILITY 1261

Informed consent is defined to denote, "the agreement by a person to a

proposed course of conduct after the lawyer has communicated adequate

information and explanation about the material risks ofand reasonably available

alternatives to the proposed course of conduct."^^ While this definitional shift

might not signify much substantive change, the point of emphasis has evolved
fi-om mere process ("consultation') to result ("informed"). The comments

highlight this point:

The lawyer must make reasonable efforts to ensure that the client or
other person possesses information reasonably adequate to make an
informed decision. ... In determining whether the information and

explanation provided are reasonably adequate, relevant factors include

whether the client or other person is experienced in legal matters

generally and in making decisions ofthe type involved, and whether the

client or other person is independently represented by other counsel in

giving the consent.^"^

There are several other new definitions related to the concept of informed
consent. The rules make varying demands upon lawyers relative to the type of
documentation required to manifest an act ofconsent. The least demanding level

of documentation is none at all—oral consent is sufficient. With some notable
exceptions, the minimum level of documentation required by the rules is
"confirmation in writing," a newly defined concept.

"Confirmed in writing," when used in reference to the informed consent
of a person, denotes informed consent that is given in writing by the

person or a writing that a lawyer promptly transmits to the person

confirming an oral informed consent. ... If it is not feasible to obtain or

transmit the writing at the time the person gives informed consent, then

the lawyer must obtain or transmit it within a reasonable time

thereafter.^^

This definition is clearly met by a writing generated or signed by the person
giving consent, but it is also satisfied by the unilateral act of the lawyer

delivering a confirming writing to the person who gave consent. What
constitutes a writing is defined as follows: "'Writing' or 'written' denotes a

tangible or electronic record of a communication or representation, including

handwriting, typewriting, printing, photostatting, photography, audio or

videorecording or e-mail."^^ Thus, the definition of a writing is very broad and

takes into account evolving technologies for documenting agreements.

In a few instances, the rules require an enhanced degree of

documentation—some consents must be documented in the form of a writing

23. Ind.Prof.Cond.R. 1.0(e).

24. IND. Prof. Cond. R. 1.0 cmt. 6.

25. Ind.Prof.Cond.R. 1.0(b).

26. iND. Prof. Cond. R. 1 .0(n).



1262 INDIANA LAW REVIEW [Vol. 38: 1255

"signed by the client."^^ The earlier-mentioned definition of a writing applies
equally in these circumstances, as well, and a definition is also provided for
what constitutes a signature. "A 'signed' writing includes an electronic sound,
symbol or process attached to or logically associated with a writing and executed

or adopted by a person with the intent to sign the writing."^^ Like the definition
of a writing, this definition is quite flexible in its recognition that virtually any

reliable means of authenticating that the writing was made or adopted by the
consenting person will suffice.^^

In many instances, the new rules require documentation of consent that is
facially more demanding than under the old regime. But the definitions ofwhat
constitutes a writing, and where applicable, what constitutes a signature, are so
forgiving and flexible that these changes should not be viewed as casting an
unworkable burden on the bar, especiallywhenprudent law practice management
argues in favor of requirements at least as strict.

B. Law Firms AndPartners

The definition of a "firm" or a "law firm" has been modified to take into
account the evolution of various forms of law practice in contemporary use and

expansively incorporates all forms of law practice entities, including law

partnerships, professional corporations, sole proprietorships, corporate law

departments, legal aid organizations, and any other associations authorized to

practice law.^^ In a related change, the definition of "partner" now includes "a
member of an association authorized to practice law."^^ This broader definition
becomes relevant when considering the special duties and responsibilities of
supervisory lawyers under Rules 5.1, dealing with supervision ofother lawyers,

and 5.3, dealing with supervision of non-lawyers.

27. Id. Rule 1.5(c) (contingent fee agreements); Rule 1.8(a) (business transactions with

clients); and Rule 1.8(g) (aggregate settlements).

28. IND. Prof. COND.R. 1.1 0(n).

29. For a more detailed explanation of these concepts and a criticism of the ABA Model
Rules of Professional Conduct for not being sufficiently rigorous in imposing documentation

requirements, see Donald R. Lundberg, Documenting Client Decisions: A Critique ofthe Model

Rules Post-Ethics 2000, PROFESSIONAL LAW., Summer 2003, at 2.

30. iND. Prof. Cond. R. 1 .0(c). The supreme court rejected an ISBA recommendation that

would have somewhat softened the definition of a law firm by stating that the term "may include"

any of the entities among those listed. The final definition lists those entities as being law firms

without qualification. Nonetheless, comment [4] to Rule 1 .0 asserts that in some cases the structure

of a legal aid organization may result in it being treated as a single law firm or separate firms

depending on organizational structure. Moreover, comment [3] points out that even though a

corporate or governmental legal department is undoubtedly a law firm, there is sometimes a

question of fact concerning the identity of the client, particularly as it pertains to corporate

subsidiaries or affiliates.

3 1

.

iND. Prof. Cond. R. 1 .0(g).



2005] PROFESSIONAL RESPONSIBILITY 1263

C Fraud

The definition of"fraud" or "fraudulent" has been amended (consistent with

the ABA definition) to incorporate that which is fraudulent under other
applicable substantive or procedural law and "has a purpose to deceive."^^

Previously, the definition included any conduct that had a "purpose to deceive"

but was not merely negligent or passive conduct.^^

D. Conflict ofInterest Screening

In several instances under the rules, conflicts ofinterest imputed to law firms

that arise because ofthe migration of lawyers (or in some instances, non-lawyer

staff) from old law firms, including government employment, to new law firms
may be avoided if the personally conflicted lawyer or non-lawyer staff member
is "screened" from the matter at the new firm. Even though the concept of
screening pre-dates the most recent amendments to the rules, for the first time we
now have a definition ofscreening. "'Screened' denotes the isolation ofa lawyer
from any participation in a matter through the timely imposition of procedures

within a firm that are reasonably adequate under the circumstances to protect

information that the isolated lawyer is obligated to protect under these Rules or

other law."'^

E. Tribunal Defined

The only instance in which the Indiana Supreme Court took a definitional

approach different from the ABA is with the definition of "tribunal." The ABA
defines the term broadly to include, in addition to a court, any arbitration body,

administrative agency or legislative body that renders binding legal judgments

after hearing evidence and argument from parties.^^ By contrast, Indiana's
definition, taken fi-om the ISBA proposal, states, "'Tribunal' denotes a court, an
arbitrator, or any other neutral body or neutral individual making a decision,

32. IND. Prof. Cond. R. 1 .0(d).

3 3 . The supreme court rej ected an ISBA recommendation that the definition of fraud mean,

"fraud or constructive fraud as defined under Indiana law." One difference between the ISBA

proposal and the court's version is that the court's approach anticipates that some fraudulent

conduct by lawyers may occur in other jurisdictions where the local law of fraud may differ from

Indiana's. The court's inclusion ofthe qualifying clause, "and has a purpose to deceive," raises the

question whether constructive fraud will be treated as fraudulent conduct for purposes ofthe rules.

The answer is not clear. Compare Sanders v. Townsend, 582 N.E.2d 355, 358 (Ind. 1991) ("Intent

to deceive is not an element ofconstructive fraud; instead, the law infers fraud from the relationship

ofthe parties and the circumstances which surround them."), with Rice v. Struck, 670 N.E.2d 1280,

1284 (Ind. 1996) ("The elements of constructive fraud are: . . . (ii) violation of that duty by the

making of deceptive material misrepresentations ofpast or existing facts or remaining silent when

a duty to speak exists "). See also Matter of Scahill, 767 N.E.2d 976, 979 (Ind. 2002).

34. Ind. Prof. Cond. R. 1 .0(k).

3 5

.

Model Rules of Prof'l Conduct R. 1 .0(m) (2000).



1264 INDIANA LAW REVIEW [Vol. 38: 1255

based on evidence presented and the law applicable to that evidence, which
decision is binding on the parties. "^^ The difference appears to be more stylistic
than substantive.

IV. Conflicts OF Interest

A. Rule 1. 7 Conflict ofInterest: Current Clients

Rule 1 .7 governs concurrent conflicts ofinterest, including conflicts between

multiple clients who are represented by the same lawyer, conflicts between
current clients and third parties, and conflicts between current clients and the

lawyer's personal interests. The Indiana Supreme Court followed ABA Model
Rule 1 .7 with minor exceptions. Rule 1 .7 has been restructured for clarity so that

paragraph (a) states the general rule presumptively prohibiting all concurrent

conflicts of interest, and paragraph (b) sets forth the circumstances under which

representation is permitted notwithstanding a presumptive conflict of interest.

To the extent there was any question in the past about whether a lawyer could
obtain client consent to represent one client directly adverse to another client in

the same matter in litigation. Rule 1.7(b)(3) now states that client consent may
be sought only if "the representation does not involve the assertion ofa claim by
one client against another client represented by the lawyer in the same litigation

or other proceeding before a tribunal."^^ This language seems to definitively

preclude, for example, simultaneous representation of husband and wife in a

dissolution of marriage proceeding.^^ The other change of significance in the
black-letter rule is that all conflict waivers must by be confirmed in writing.^^

Thus, even though prudence dictates that the affected client or clients should sign

a written consent, the lawyer's written confirmation is sufficient. This represents

an enhanced obligation to document conflict of interest waivers that, previously,

were not required to be in writing.

The more noteworthy changes in Rule 1 .7 appear in the commentary. Those

changes are not substantive, but they do give lawyers a great deal more guidance

in working through conflict of interest questions. Indeed, the comments will be

quite helpful to the practitioner in that they address the resolution of many
conflict ofinterest problems that frequently arise in specific law practice settings.

Here are some of the highlights. New Comment [3] emphasizes the
importance of creating institutional mechanisms for identifying and avoiding

conflicts of interest by asserting that ignorance of conflicts will not excuse a

violation of the rule. There is a helpful new Comment [5] addressing conflicts
of interest that arise due to party realignment or changes in a client's

organizational structure through, for example, acquisition or merger. Comment
[11] addresses conflicts of interest arising when one lawyer handles a matter

36. IND. Prof. COND. R. l.O(m).

37. iND. Prof. COND.R. 1.7(b)(3).

38. iND. Prof. Cond. R. 1.7 cmt. 17.

39. iND. Prof. CoND.R. 1.7(b)(4).



2005] PROFESSIONAL RESPONSIBILITY 1265

adverse to another lawyer who is a spouse or stands in some other close family
relationship. This is in substance the standard of old Rule 1.8(i), which was
eliminated in favor ofthis comment. There are new comments addressing when
consent to a conflict of interest may no longer be operative upon a material
change in circumstances'^^ and the limited circumstances under which client

consent to a future conflict will be effective."^' There is a new comment dealing
with conflict questions arising in representation ofclass members in class action
litigation, with particular reference to unnamed class members."^^ The comment
on positional conflicts of interest, old Comment [9], has been redrafted and now
appears as Comment [24]. Expansive new commentary gives greater guidance
in the analysis ofpotential conflicts arising from representing multiple clients in

the same matter."^^ Old Comment [8], dealing with conflicts involving
organizational affiliates, such as corporate subsidiaries, has been completely

redrafted and repositioned as Comment [34].

B. Rule 1.8 Specific Rules Governing Current Client Conflicts

Rule 1.8 chronicles a variety of specific situations out ofwhich conflicts of

interest arise. There are several noteworthy changes.

/. Rule 1.8(a) Transactions Between Lawyer and Client.—Rule 1.8(a)
governs transactions between lawyers and clients when their interests are
adverse. In this circumstance, new language in Rule 1.8(a)(2) requires that the
client be affirmatively advised in writing ofthe desirability ofseeking the advice

of independent legal counsel in the transaction. Whereas previously only the
client's consent to such a transaction had to be in a writing, new language in Rule
1.8(a)(3) outlines the essential content of the writing and requires that it be

signed by the client. Comment [1] to Indiana Rule 1.8 includes cautionary
language that does not appear in the correspondingABAModel Rule: "Paragraph
(a) applies when a lawyer seeks to renegotiate the terms of the fee arrangement
with the client after representation begins in order to reach a new agreement that
is more advantageous to the lawyer than the initial fee arrangement.'"^"^
Comments [1] through [4] represent a significant expansion in the helpful
commentary on business transactions with clients. While it is generally
understood that an initial fee contract between lawyer and client does not

implicate Rule 1.8(a), new language in Comment [1] cautions that the rule's
"requirements must be met when the lawyer accepts an interest in the client's
business or other non-monetary property as payment of all or part of a fee.'"*^

2.. Rule 1.8(c) Gifts From Clients.—Rule 1.8(c), governing gifts from
clients, has been expanded to also prohibit the solicitation ofany substantial gift

40. IND. Prof. Cond. R. 1.7 cmt. 21.

41. iND. Prof. Cond. R. 1.7 cmt. 22.

42. iND. Prof. Cond. R. 1.7 cmt. 25.

43. iND. Prof. Cond. R. 1.7 cmts. 29-33.

44. Ind. Prof. Cond. R. 1.8 cmt. 1.

45. Id.



1266 INDIANA LAW REVIEW [Vol. 38:1255

from a client. New language in Comment [6], former Comment [2], notes that
there is no ethical prohibition against accepting an unsolicited gift, even a
substantial one, from a client, but that other legal doctrines may make such a gift
vulnerable to ftiture attack. New Comment [8] indicates that there is no per se
prohibition against drafting a will or other legal document that designates the
lawyer as a personal representative or other fiduciary, but notes that

circumstances may exist that make such a transaction one that could be
considered a potential conflict of interest under Rule 1.7.

3.. Rule 1.8(g) Aggregate Settlements.—The danger of aggregate
settlements, governed by Rule 1 .8(g), is that they potentially place the lawyer in
the middle ofa conflict between clients over how much each should benefit from
a fixed pot of money or how much each should contribute to a total settlement
offer. As between the co-clients, every dollar ofbenefit to one client represents
a corresponding loss to the other; hence, the need for informed consent. As
before, the lawyer must disclose to all co-clients all terms of the settlement and

the respective participation of each client in the settlement. But now, new
language in Rule 1 .8(g) requires the lawyer to document informed consent by a

writing signed by the clients. It remains unclear whether the required disclosures
must be in writing, but the prudent lawyer will want to make sure that they are.
Comment [14] on aggregate settlements has been added where none existed in
the past.

4.. Rule 1.8(h) Limiting Liability and Settling Malpractice Claims.—
Organizationally, Rule 1 .8(h) has been restructured for clarity into two subparts,

the first deals with prospective limitations on malpractice liability, and the

second deals with settling actual or potential liability claims by unrepresented

current or former clients. Also, Rule 1 .8(h)(2), dealing with settlement ofclaims,

now clearly states that written notice of advisability that the client or former
client be represented by counsel must be provided far enough before any

settlement to allow a reasonable opportunity to seek advice of counsel. New
Comments [14] and [15] have been added to expand upon the black-letter rule.
Comment [14] provides that this rule does not preclude the use of an arbitration
clause in an attorney-client contract provided it is legally enforceable and "the

client is fully informed of the scope and effect of the agreement.
'"^^

5. Rule 1.80 Lawyer-Client Sexual Relationships.—^New Rule 1.8(j)
generally codifies in rule form a prohibition against sexual relationships with

clients that has already been established by Indiana case law."*^ It states: "A
lawyer shall not have sexual relations with a client unless a consensual sexual

relationship existed between them when the client-lawyer relationship
commenced.'"^^ New related commentary. Comments [ 1 7] through [19], includes
a test for identifying which constituents of an organizational client are off limits

for sexual relationships: anyone "who supervises, directs or regularly consults

46. IND. Prof. Cond. R. 1.8(h) cmt. 14.

47. See, e.g., In re Lesley, 820 N.E.2d 142 (Ind. 2005); In re Grimm, 674 N.E.2d 55 1 (Ind.

1996).

48. Ind. Prof. CoND. R. 1.8G).



2005] PROFESSIONAL RESPONSIBILITY 1267

with that lawyer concerning the organization's legal matters.
'"^^

6. Rule 1.8(k) Imputation of Prohibitions.—While the imputation of
conflicts of interest are generally governed by Rule 1.10, Rule 1.8 prohibitions

are governed by a separate, and new, provision. All Rule 1.8 prohibitions are

imputed to other members of the directly implicated lawyer's firm, with the
exception of the prohibition on sexual relationships with clients found in Rule

1.8(j), which is personal in nature and not imputed.^^

Previously, imputation ofRule 1 .8 prohibitions was governed by Rule 1.10.
Old Rule 1.10 applied the imputation doctrine only to the prohibitions ofsubparts

(c) (gifts from clients) and (k) (part-time prosecutors) of Rule 1.8. Thus, new
Rule 1.8(k) represents a significant expansion in the application of imputation

principles to Rule 1.8 prohibitions.

C Rule 1.9 Duties to Former Clients
Rule 1.9, governing conflicts of interest with former clients and protection

of information related to the representation of former clients, remains

substantially the same. However, waivers of conflicts involving former clients

must now be confirmed in writing.^

^

The content of old Rule 1 .10(b) has now been incorporated into Rule 1 .9 as
Rule 1 .9(b), and old Rule 1 .9(b) has been re-numbered Rule 1 .9(c).^^ Thus, it is

now in Rule 1 .9(b) that we find the general prohibition against a lawyer who
changes firms from representing a new-firm client adverse to an old-firm client

about whom the lawyer acquired information protected by Rule 1.6.
As with Rule 1 .7, the commentary to Rule 1 .9 has been expanded to provide

better guidance and to address its application to commonly occurring situations.

D. Rule 1.10 Imputation ofConflicts ofInterest: General Rule

For the most part, the principles governing the imputation of conflicts of

interest from the directly affected lawyer to other lawyers in the same firm are

found in Rule 1.10. The general imputation rule is stated in Rule 1 . 1 0(a), but the
supreme court, following the ABA, has now grafted on an exception to
imputation when "the prohibition is based on a personal interest ofthe prohibited
lawyer and does not present a significant risk of materially limiting the

representation ofthe client by the remaining lawyers in the firm."^^ An example
ofthe application ofthis exception is set forth in new Comment [3]: "Where one
lawyer in a firm could not effectively represent a given client because of strong

49. IND. Prof. Cond. R. 1.8(j) cmt. 19.

50. iND. Prof. Cond. R. 1.8(k) & cmt. 20.
5 1

.

iND. Prof. Cond. R. 1 .9(a).

52. The shift of Rule 1.10(b) to Rule 1.9 occurred within the ABA Model Rules in 1989.
Indiana did not make a corresponding amendment at that time. Thus, this change in Indiana does

not reflect the Ethics 2000 deliberations so much as it attends to unfinished business from

1989.

53. iND. Prof. Cond. R. 1 .10(a).



1268 INDIANA LAW REVIEW [Vol. 38: 1255

political beliefs, for example, but that lawyer will do no work on the case and the
personal beliefs of the lawyer will not materially limit the representation by
others in the firm, the firm should not be disqualified."^'^

Clearly, the most significant amendment to Rule 1.10 is found in new Rule
1 . 1 0(c). This provision addresses the potential conflict of interest problems that

arise when lawyers change law firms. Historically, when a lawyer left a firm,
having been exposed to disqualifying information about a client while at the old

firm, and joined a new firm, the migrating lawyer's disqualification from
representing a new-firm client against an old-firm client in the same or a
substantially related matter was imputed to the entire new firm. Screening^^
(sometimes called a "Chinese wall") was not a permissible method of defeating
imputation ofthe migrating lawyer's disqualification to the new law firm.^^ This
has now changed in Indiana.^'' New Rule 1.10(c) permits timely screening to
defeat imputation of a conflict imported via a migrating lawyer under three

conditions. First, the personally disqualified lawyer must not have had primary

responsibility for the matter at the old firm.^^ Second, the personally disqualified

lawyer must be timely screened from any participation, including no

apportionment of any part ofthe fee from the matter.^^ And third, there must be

54. Ind.Prof. COND.R. l.lOcmt. 3.

55. Screening is defined in IND. Prof. Cond. R. l.O(k).

56. The unavailability of screening to defeat imputation was clearly the case for purposes of

lawyer discipline. Much less clear was whether timely screening could be used to defeat a

disqualification motion in a matter in litigation. Most prominently, the Indiana Court ofAppeals

in Gerald V. Turnock Plumbing, Heating and Cooling, LLC, 768 N.E.2d498 (Ind. Ct. App. 2002)

opined that timely screening would defeat disqualification. That opinion was unfortunately

ambiguous about whether it was addressing only disqualification proceedings or interpreting the

Rules of Professional Conduct. To the extent Gerald could be read as interpreting the old Rules

of Professional Conduct to permit the use of screening as a disciplinary standard, it was wrong.

One could convincingly argue that a disconnect between the disqualification standard and the

discipline standard is an undesirable situation. A salutary effect ofnew Rule 1 .10(c) is to bring
those two standards into synch.

57. The ABA Ethics 2000 Commission recommended the adoption ofa screening provision
in Model Rule 1.10. The ABA House ofDelegates rejected that recommendation. In Indiana, the
state bar association Ethics 2000 Taskforce followed the final ABA version and did not recommend
the inclusion of a screening provision in Rule 1.10. The ISBA House of Delegates accepted the

recommendation without change. Thus, the incorporation ofa screening provision in Rule 1 . 1 to

defeat imputation represents an independent decision ofthe Indiana Supreme Court, prompted by

neither the ABA Model Rules nor the ISBA recommendations.
58. The requirement in Indiana Rule 1.10(c)(1) that screening is only permitted in cases

where the personally disqualified lawyer did not have primary responsibility for the disqualifying

matter was not an element of the screening provision that the ABA Ethics 2000 Commission
recommended.

59. New Comment [6] to Indiana Rule 1.10 provides that the prohibition on sharing fees with

the screened lawyer "does not prohibit the screened lawyer fi-om receiving a salary or partnership

share established by prior independent agreement, but that lawyer may not receive compensation



2005] PROFESSIONAL RESPONSIBILITY 1269

prompt written notice to the affected former client. The purpose of notice is to

allow the former client to monitor the integrity of the screen. Most of the old
commentary to Rule 1.10 regarding the definition of a law firm has now been
incorporated into new Rule LO(c) and related comments.

To screen or not to screen has been a matter of considerable controversy
nationally. By allow screening in the context of migrating private practice
lawyers, Indiana is now aligned with a minority of eight jurisdictions^^ and the
position of the Restatement of the Law Governing Lawyers.^^

E. Rule 1.11 Special Conflicts ofInterestfor Former and
Current Government Officers and Employees

Conflict of interest standards for lawyers migrating into and out of

government employment have always been, and continue to be, different, and

somewhat less rigorous, than the standard for lawyers who change firms in a
private law practice environment. Apolicy motivation behind this differentiation
is to blunt some of the disincentives to rendering service in government
employment. To this extent. Rule 1.11 has not been materially changed.
However, consistent with conflict of interest waivers throughout the new rules,
conflict waivers in this setting must now be confirmed in writing.^^

Rule 1.11(a) has been amended to clarify a previously ambiguous point:
former client conflicts of interest for lawyers who migrate to and from
government employment are solely governed by Rule 1.1 1(b), not Rule 1.9(a).
The applicable standard ofdisqualification—that the migrating lawyer must have
participated personally and substantially in the putatively disqualifying matter

while in government service—remains the same. However, the amended rule
also clarifies that under these circumstances, the former government lawyer is

obliged to protect the confidences of his former government client consistent

with the standard of Rule 1.9(c). Deletion of the word "private" from old Rule
1 . 1 1(a)(2) also conveys an intent to apply this same standard to lawyers moving
from one government employer to another.

New Rule 1.11(b), formerly incorporated into Rule 1.11(a), continues to
allow screening oflawyers who leave government employment. With the advent
of screening in Rule 1.10, the availability of screening for former government

lawyers should now be viewed, not as an exception to the general rule, but
merely as one application of screening in a different law practice setting.

Amended Rule 1.11(d) (formerly Rule 1.11(e)) clarifies that current
government lawyers are governed by Rules 1.7, and 1.9. So for example, a
lawyerwho goes into government service from private practice will be prohibited
from having any involvement in a matter on behalf of his or her government

directly related to the matter in which the lawyer is disqualified." IND. PROF. COND. R. 1.10.

60. Thomas D. Morgan&Ronald D. Rotunda, Selected Standards onProfessional
Responsibility, app. B at 154 (2005).

6 1

.

Restatement (Third), The Law Governing Lawyers § 1 24(2) (1998).
62. iND. Prof. CoND. R. 1.11(a)(2) & 1.11 (d)(2)(i).



1270 INDIANA LAW REVIEW [Vol. 38: 1255

employer that is adverse to a former private practice client in a matter that is the

same or substantially related to the private practice representation. However, the
usual imputation principles of Rule 1.10 do not apply so that the personally

disqualified lawyer's conflict will not be imputed to other lawyers representing

the government agency, even in the absence of a screen, although screening is

advised.^^

F. Rule 1.12 Former Judge, Arbitrator, Mediator or Other
Third-Party Neutral

Rule 1.12, previously dealing with conflicts of interest involving former

judicial officers, has been expanded to apply the same conflict of interest
standard to mediators and other third-party neutrals. As with all conflict of
interest waivers under the new rules, conflicts falling within this rule are
waivable only upon informed consent confirmed in writing.^'^ Application ofthe
waiver provision to third-party neutrals creates an apparent conflict between Rule

1.12 and Rule 7.6(B) of the Indiana Rules for Alternative Dispute Resolution,

which provides: "[A] neutral shall decline to act in any capacity except as a

neutral unless the subsequent association is clearly distinct from the issues

involved in the alternative dispute resolution process."^^ Waivers are not

contemplated by the ADR rule.
Rule 1.12(b) has been the standard for governing the negotiation for

employment by law clerks ofjudicial officers, and it has now been expanded to
apply identically to law clerks of mediators and third-party neutrals. In this

regard, new Indiana Rule 1 .12(b) differs from ABA Model Rule 1 .12(b), which
excluded clerks for mediators or third party neutrals from the Rule 1.12(b)

employment-negotiation standard.

G. Rule 1.18 Duties to Prospective Clients

Rule 1.18 is an entirely new rule designed to address confidentiality and
conflict of interest issues that arise from initial consultations with prospective

clients that do not ripen into full lawyer-client relationships. The Indiana
Supreme Court adopted ABA Model Rule 1.18 with some modifications. Rule
1.18 sets standards for protection of information disclosed by the prospective

client, and addresses the conditions under which the consulted lawyer and the

lawyer's firm will be disqualified as a consequence of having been exposed to

such information.

Rule 1 . 1 8(a) defines a "prospective client" as "[a] person^^ who discusses
with a lawyer the possibility offorming a client-lawyer relationship with respect

63. IND. Prof. Cond. R. 1 . 1 1 cmt.2.

64. iND. Prof. Cond. R. 1 .12(a).

65. iND. A.D.R. R. 7.6(b).

66. "Person" is not defined. Presumably it applies equally to organizations, acting through

constituents, as it does to natural human beings.



2005] PROFESSIONAL RESPONSIBILITY 1 27

1

to a matter."^^ Rule 1.18(b) states the general prohibition that the use or

revelation of information learned in the consultation is prohibited unless

otherwise allowed by Rule 1 .9, dealing with protection of information related to

representation of former clients.

Rule 1.18(c) states the general conflict of interest standard. It essentially

incorporates the Rule 1 .9 former client/substantial relationship standard, but only

if the lawyer received information from the prospective client that would be
"significantly harmful" to the prospective client in the matter. Also, Rule 1 . 1 8(c)

includes an imputation standard that disqualifies all lawyers in the same firm as

the consulting lawyer who was exposed to significantly harmful information.
Rule 1.18(d) carves out exceptions to the disqualification and imputation

tests of Rule 1.18(c). First, as in most conflicts situations, both the would-be

current client who will now be adverse to the prospective client and the
prospective client maywaive by giving informed consent, confirmed in writing.^^
Second, if the consulting lawyer who was exposed to significantly harmful
information "took reasonable measures to avoid exposure to more disqualifying
information than was reasonably necessary to determine whether to represent the
prospective client," other lawyers in the same firm may take on a client adverse
to the prospective client so long as the consulting lawyer is timely screened and

the prospective client is given written notice that a screen has been employed.^^

Related comments expand upon the new rule. Ofspecial note are: Comment
[2], providing that unilateral, unsolicited imposition ofinformation upon a lawyer
will not generally cloak the communicator with the protections ofthe prospective

client rule; and Comment [5], suggesting that a consulting lawyer may solicit an
advance agreement from a prospective client that no disclosed information will

prohibit the lawyer from representing another client. Surprisingly, Comment [5]
to ABA Model Rule 1.18 goes on to suggest that such an agreement may also
provide for the use of any information disclosed to the prospective client's

disadvantage. Acting on the recommendation of the state bar association, the

Indiana Supreme Court wisely rejected that provision.
Indiana Rule 1.18 includes an additional comment that was recommended by

the state bar association and does not appear in the corresponding ABA Model
Rule. Indiana Comment [10] provides that other lawyers in the consulting
lawyer's firm will be similarly disqualified to the extent the consulting lawyer

shares disqualifying information with them.

Lawyers should be aware that Rule 1.18, while helpful, is not a panacea for

avoiding disqualifications caused by exposure to prospective client information.
As noted above, the consulting lawyer may take reasonable steps to limit the
acquisition of information to that reasonably necessary to determine whether to

represent the client. Comment [4] suggests that this would generally pertain to
information necessary to screen for conflicts of interest. This will be of limited

benefit in most cases, where it is not the prospective client that presents the

67. IND. Prof. Cond. R. 1 . 1 8(a).

68. iND. Prof. COND.R. 1.18(d)(1).

69. iND. Prof. Cond. R. 1 . 1 8(d)(2).



1272 INDIANA LAW REVIEW [Vol. 38:1255

conflicting representation, but the next prospective client who wants the firm to
handle a substantially related matter adverse to the earlier prospective client.

When consulting with the first prospective client, the consulting lawyer cannot
be reasonably expected to know that, (1) the firm will not be hired, and (2) an
adverse party will later try to hire the firm. It is true that Comment [5] suggests
that a conflict waiver may be demanded fi-om the prospective client as a
condition to the initial interview, but lawyers will often have legitimate business

reasons to avoid employing such adversarial tools with potential new clients.

H. Rule 2.2 Intermediary

The ABA eliminated Model Rule 2.2, dealing with the subject matter of
lawyers who act in an intermediary capacity between multiple clients wishing to
resolve a matter in dispute, in favor of considering such matters as an aspect of

multiple client representation governed by Model Rule 1.7. By contrast, the
Indiana Supreme Court retained Rule 2.2 and related commentary without
change, even though the state bar association had recommended that Indiana
follow the ABA and eliminate Rule 2.2. In addition to Rule 2.2, Comment [28]
to Indiana Rule 1.7 addresses the role of the lawyer as intermediary. As a
practical matter. Rule 2.2 adds nothing of substance to the application of Rule

1.7; but it might provide some additional guidance to lawyers who choose to
accept the role ofintermediating disputes between multiple clients. Undoubtedly

as an artifact ofretaining Rule 2.2, Indiana Rule 2.2 still contains the outmoded
notion of consent after consultation, rather than the new nomenclature of
informed consent, and it does not stipulate that client consent must be confirmed

in writing. However, because Rule 2.2 describes a sub-set of Rule 1.7 conflicts

of interest, the confinnation in writing requirement in Rule 1.7 should trump

Rule 2.2 's failure to mention it.

/. Rule 6.5 Nonprofit and Court-AnnexedLimited Legal Services Programs

Hidden in new Rule 6.5^^ is a set of standards governing conflict of interest
analysis for limited legal services programs provided to the public under the

auspices of nonprofit organizations, frequently bar associations, and the courts.

The rule generally allows lawyers to cooperate with such programs that provide
short-term, limited legal services to clients without being burdened by a fiill-

blown application of conflict of interest principles. The rule blunts some
disincentives for lawyers to participate in such programs, which are generally

targeted at clients from traditionally underserved populations. These

representations are true attorney-client relationships, albeit ones that are limited

in time and scope, and not prospective client matters governed by Rule 1.18.

This rule has no application to lawyers who choose to provide short-term,
limited legal services to clients in their own law practices. Limitations on the
scope of those representations will be governed by Rule 1 .2(c) and the ordinary

70. Old Rule 6.5 contained Indiana's voluntary pro bono plan. Those provisions have been

transferred unchanged into a new rule, Rule 6.6.



2005] PROFESSIONAL RESPONSIBILITY 1273

conflict of interest standards of Rules 1.7, 1.9, and 1.10.

Rules 6.5(a)( 1 ) and (2) provide that a lawyer is disqualified from giving brief

service under a qualifying program only for conflicts of interest under Rules 1 .7

and 1 .9(a), or imputed under Rule 1.10, that the lawyer actually knows about. In

effect, this means that the lawyer is free to provide the service even though a

check ofthe lawyer's firm conflicts system would reveal a disqualifying conflict

about which the lawyer was not actually aware. Also, Rule 6.5(b) provides that

the imputation rules of Rule 1.10 are not otherwise applicable, meaning that a

brief consultation with a limited legal services client will not be imputed to the

consulting lawyer's law firm. Comment [2], though, cautions that the
information gleaned by the lawyer during the course of rendering limited legal

services is information that must be maintained confidential under the provisions

of Rules 1.6 and 1.9(c).

V. Other Rules Governe^g the Lawyer-Client Relationship

A. Rule 1.2 Scope ofRepresentation andAllocation ofAuthority Between
Client andLawyer

Section (a) of Rule 1.2 deals with the allocation of authority between client

and lawyer. Little of substance has changed, in that the rule still assigns to the

client the authority to determine the objectives of representation, and to the

lawyer, in consultation with the client, the authority to determine the means used

to achieve those objectives. The court amended this section to include an explicit

cross-reference to Rule 1 .4, thereby emphasizing that consultation about means

to be used is an aspect of client communications governed by the standards of

Rule 1.4.

The court added a new sentence to Rule 1.2(a): "A lawyer may take such
action on behalf of the client as is impliedly authorized to carry out the

representation."^^ This is not a significant change inasmuch as lawyers

previously had, and still have, authority under Rule 1.6(a) to reveal client

confidences to the extent impliedly authorized to carry out the representation.

Thus, the rule recognizes that in many situations the means to be used by the
lawyer are self-evident given the nature of the representation, and no specific

consultation is necessary. New Comment [2] discusses the circumstance when
the lawyer and client are at odds over the means to be employed. It suggests that,

in the final analysis, either the lawyer may be required to withdraw from the
representation as contemplated by Rule 1.16(b)(4), or the client may force
withdrawal by discharging the lawyer.^^ Also, new Comment [3] contemplates
that the lawyer and client may agree about the choice of means at the outset of
representation and need not revisit the matter unless circumstances change in a

material way.

Rule 1 .2(a) previously allocated to the client the decision to "accept an offer

7 1

.

IND. Prof. Cond. R. 1 .12(a).

72

.

iND. Prof. Cond. R. 1 . 1 6(a)(3).



1274 INDIANA LAW REVIEW [Vol 38: 1255

of settlement."^^ The new formulation of the rule allocates to the client the
decision to "settle.

"^"^ The intent of this change is to clarify that the client has
authority over decisions both to accept settlement offers and to make them.

ABA Model Rule 1 .2(c) provides that a lawyer may limit the "objectives" of
the representation "ifthe limitation is reasonable under the circumstances and the

client gives informed consent."^^ The ABA substituted the word "objectives" for
the previous term "scope." The Indiana Supreme Court's version ofRule 1 .2(c)
retains the word "scope" but adds "and objectives. "^^ The meaning of our
supreme court's retention of the word "scope" is unclear, in part because it
offered no comment on the point. Rule 1.5(b), dealing with attorney fees,
provides that the scope ofrepresentation and the basis for or rate ofthe fee must

be communicated to the client, "preferably in writing." Thus, one might think
of "objectives" as defining the end goals of the client in a particular

representation, whereas "scope" defines the general subject matter of the

representation. For example, a lawyer might accept a domestic relations matter

and consider the decision to seek child custody an objective of that

representation. Whereas, the fact that the lawyer is handling the domestic

relations matter for a client and not the client's claim for personal injuries arising

from a recent automobile accident might be thought of as a limitation on the

scope of representation.

Rule 1.2(c) also includes a new qualification on limiting the objectives and
scope of representation—that any such limitation must be reasonable under the
circumstances and the client must give informed consent. New Comment [7]
expands upon such agreements, warning that, "an agreement for a limited
representation does not exempt a lawyer from the duty to provide competent

representation."^^

Old Rule 1 .2(e), dealing with the duty of the lawyer to counsel the client

about any ethical limitations on the representation, has been relocated to the rule

dealing with client communications and now appears as Rule 1.4(a)(5).

B. Rule 1.3 Diligence

There were no changes to the black-letter rule requiring lawyers to act with

reasonable diligence and promptness in representing clients. New commentary
has been added that is consistent with the supreme court's express interest in

discouraging discourteous conduct as a method ofclient advocacy. Comment [ 1 ]
now states that the duty ofdiligence "does not require the use ofoffensive tactics
or preclude the treating of all persons involved in the legal process with courtesy

and respect."^^ And Comment [3] specifically states that a lawyer is not

73

.

IND. Prof. Cond. R. 1 .2(a) ( 1 983).

74. iND. Prof. Cond. R. 1 . 1 (a) (2005).

75. Model Rules OF Prof'l Cond. 1.2(c).

76. iND. Prof. Cond. R. 1 .2(c).

77. iND. Prof. Cond. R. 1.2 cmt. 7.

78. iND. Prof. Cond. R. 1 .3 cmt. 1 . See also Tim A. Baker, A Survey ofProfessionalism and



2005] PROFESSIONAL RESPONSIBILITY 1275

precluded from "agreeing to a reasonable request for a postponement that will not

prejudice" the client^^

Additional new commentary urges that lawyers control their workload so as
not to compromise their obligations to existing clients.^^ Also, new Comment [5]
urges sole practitioners to have a plan in place to take care of the needs of their

clients in the event of the lawyer's death or disability.^^

C Rule 1.4 Communication

Rule 1.4(a), dealing with client communications, has been expanded to

include more detail about the components of keeping a client reasonably

informed. The subsidiary parts include: promptly advising the client of any

matter requiring the client's informed consent; reasonably consulting with the

client about the means to be employed to achieve the clients' objectives; keeping

the client reasonably informed about status; responding promptly to reasonable

requests for information; and consulting with the client about ethical or legal

limits on what the lawyer can do for the client. The commentary to Rule 1 .4 has
been expanded significantly to provide lawyers greater guidance in the area of

client communications.

D. Rule 1.5 Fees

Previously, the general rule on fees required only that a lawyer's fee be

reasonable. As amended, Rule 1.5(a) now provides that, "[a] lawyer shall not
make an agreement for, charge, or collect an unreasonable fee or an unreasonable
amount of expenses."^^ The non-exclusive list of factors bearing on
reasonableness remains the same as before, but it is now clear that a reasonability
analysis applies to expenses as well as to fees.^^

Whereas, Rule 1 .5(b) previously required only that the basis or rate offee be

communicated to the client, amended Rule 1.5(b) also requires communication
of the scope of the representation and the terms related to charging expenses to

the client. As before, with the exception of contingency fees, written fee
agreements are preferred, but not required. New language goes on to state
explicitly that, "[a]ny changes in the basis or rate ofthe fee or expenses shall also

be communicated to the client.
"^"^

Civility, 38 IND. L. REV. 1305 (2005).

79. iND. Prof. Cond. R. 1.3 cmt. 3.

80. iND. Prof. Cond. R. 1.3 cmt. 2.

8 1

.

The Indianapolis Bar Association has published a helpful booklet entitled, "Planning

Ahead: A Plan for Protecting Your Clients in the Event ofYour Disability or Death," available at
http://www.indybar.org/files/PlanningAhead2004_FINAL.pdf

82. iND. Prof. Cond. R. 1.5(a).

83. The list offactors bearing upon reasonableness are more fee than expense-focused. For

some guidance on the reasonableness ofexpenses ofrepresentation, see ABAComm. on Ethics and
Prof 1 Responsibility, Formal Op. 93-373 (1993).

84. iND. Prof. Cond. R. 1.5(b). A provision in Comment [1] to Rule 1.8 that is unique to



1276 INDIANA LAW REVIEW [Vol. 38: 1255

In the past, contingency fees have been treated exceptionally in that a written

fee agreement was required. Amended Rule 1.5(c) enhances the written
documentation requirement for contingency fees by requiring that the written fee
agreement be signed by the client. Moreover, the written contingency fee
agreement must clearly advise the client of the way expenses for the matter will
be handled whether or not the client prevails.

Rule 1.5(d)(1), dealing with the general prohibition against charging

contingency fees in domestic relations cases, remains substantially the same.

Indiana continues to depart from ABA Model Rule 1 .5(d)(1) in that it expressly
prohibits charging a fee that is contingent on obtaining child custody. The
genesis ofthis provision was the ISBA's recommendation to the court. The court
also retained language from old Rule 1.5(d) that recognizes the propriety of

charging a contingency fee in a post-decree support collection action, so long as

the client is informed in writing of alternative methods of collecting support,

including, presumably, the services ofcounty prosecutor's child support offices.

Curiously, this same principle is recognized in Comment [6] to ABA Model Rule
1.5, but similar commentary does not appear in Comment [6] to Indiana Rule 1.5.

Amended Rule 1.5(e), dealing with division of fees between lawyers not in
the same firm, tightens up the client consent elements. Whether a fee is to be
divided proportionately to lawyer involvement or merely on the basis that the

referring lawyer has agreed to assume joint responsibility for the representation,

there must be a confirming writing directed to the client that documents the

client's agreement to the arrangement, "including the share each lawyer will

receive."^^ Previously, a written agreement was only required in cases where the
division of fee was not in proportion to each lawyer's services. Also, the client
did not necessarily have to be informed of the specifics of the fee division and

did not need to explicitly agree. Rather, the client's consent could be inferred

from failure to object. A new clarification in Comment [8] explains that the
limits on fee splitting are not meant to apply when lawyers previously associated
in the same firm agree to divide fees to be received in the future for work done
before they disassociated.

There is added commentary that expands on the new provisions ofRule 1.5.

E. Rule 1.6 Confidentiality ofInformation

Historically, of all of the ABA Model Rules, Rule 1.6, governing the
lawyer's obligation to keep client information confidential and exceptions

thereto, probably enjoyed the fewest adherents among the states. In addition to
the general review ofthe Rules ofProfessional Conduct prompted by the Ethics

2000 process, other factors came into play to prompt the ABA to re-draft much

Indiana states: "Paragraph [ 1 .8] (a) [dealing with business transactions between lawyers and clients]

applies when a lawyer seeks to renegotiate the terms of the fee arrangement with the client after

representation begins in order to reach a new agreement that is more advantageous to the lawyer

than the initial fee arrangement." IND. PROF. COND. R. 1.8 cmt. 1.

85. iND. Prof. Cond. R. 1 .5(e).



2005] PROFESSIONAL RESPONSIBILITY 1277

of Rule 1.6, including most prominently, the corporate finance scandals of the

recent years and the enactment by Congress ofthe Sarbanes-Oxley Act of2002.^^

The Indiana Supreme Court's promulgation of Rule 1.6 in a form identical

to ABA Model Rule 1 .6 could be a harbinger of a new role for Model Rule 1 .6
as a statement of true national consensus. The supreme court's new take on the
duty of client confidentiality represents its most radical departure from the

recommendations of the ISBA. The ISBA's proposal to the court was that Rule

1.6 in its present form should be retained without modification.^^

The basic rule of client confidentiality, stated in Rule 1.6(a), remains

substantively the same: all information from whatever source related to the

representation of the client is confidential unless disclosure is impliedly

authorized in order to carry out the representation or unless there is informed

client consent. The exceptions in Rule 1.6(b) to the duty to honor client

confidentiality are largely new material. The exceptions grant the lawyer
discretion to reveal otherwise-confidential client information, but in no event is

the lawyer compelled by the rule to reveal information.^^ Also, the exercise of

discretion to reveal a client confidence must be, as in the past, supported by the

lawyer's reasonable belief that it is necessary.

Indiana Rule 1.6(b)(1) previously permitted lawyers to reveal client

information to prevent the client from committing any criminal act.^^ Under

amended Rule 1.6(b)(1), the lawyer may reveal client information in order "to
prevent reasonably certain death or substantial bodily harm."^^ This exception

simultaneously excludes circumstances where revelation was previously
permitted, and includes circumstances where revelation was previously

prohibited. Whereas, in the past a lawyer was permitted to reveal client

information to prevent even minor crimes, now the act to be prevented must be
death or serious injury. In the past, non-criminal conduct that was likely to cause
death or serious injury could not be revealed; now, it can. Previously, the lawyer

could only reveal information to prevent the client from engaging in a criminal

act; now the lawyer may reveal in order to prevent death or serious injury caused
by the acts of anyone, including non-clients.

Old Indiana Rule 1 .6(b)(2), the lawyer self-defense exception, was relocated
to Rule 1 .6(b)(5), but otherwise remains the same.

Two new, and related, confidentiality exceptions now appear in Rules

86. Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745.

87. The ISBA Ethics 2000 Taksforce's recommendation to the House of Delegates was to

accept ABA Model Rule 1 .6 in full. That recommendation was defeated by a vote ofthe House of
Delegates, the result of which was to propose retaining Indiana Rule 1.6 as is.

88. Under circumstances where an exception applies and a lawyer has discretion to reveal

client confidences, other law (e.g., child abuse reporting statutes) or other Rules of Professional

Conduct may apply to transform discretion into an obligation.

89. The old ABA formulation ofthe Rule 1 .6(b)(1) was that revelation ofclient information
must be to prevent the client from committing a criminal act likely to result in imminent death or

substantial bodily harm.

90. IND. Prof. COND.R. 1.6(b)(1).



1278 INDIANA LAW REVIEW [Vol. 38: 1255

1 .6(b)(2) and (3). Rule 1 .6(b)(2) permits a lawyer to reveal client information to
prevent the client from committing a crime or fraud reasonably certain to result
in substantial injury to another's financial interests or property "in furtherance

ofwhich the client has used or is using the lawyer's services."^^ Rule 1 .6(b)(3),
in addition, permits a lawyer to reveal in order to mitigate or rectify such injury

that has already resulted from use of the lawyer's services.^^ Under the old
Indiana regime, a lawyer would have had discretion to reveal confidences under
these circumstances only if the client's future conduct was reasonably believed
to be criminal in nature, and only to prevent the conduct, regardless of whether

the lawyer's services were implicated in the crime. The circumstances under
which Indiana lawyers may reveal are now expanded to include fraudulent, but
non-criminal conduct, and also for the purpose of mitigating or rectifying
completed client-caused harm, rather than merely to prevent it, but only so long

as the lawyer's services were used by the client in fiirtherance of the crime or
fraud.^^

Another new exception found in Rule 1.6(b)(4) to the duty to maintain
confidences permits a lawyer to reveal client information to another lawyer in

order to "secure legal advice about the lawyer's compliance with these Rules.
"^"^

This is a relatively uncontroversial provision that liberates lawyers from the

previous charade of seeking advice in purely hypothetical terms. As a policy
matter, this exception is sound because it encourages lawyers to seek guidance

in the increasingly complex areas oflegal ethics and professional responsibility,

to the benefit of clients, the bench, and the bar.

A final new exception in the black-letter rule appears in Rule 1.6(b)(6),
permitting a lawyer to disclose client information "to comply with other law or

a court order. "^^ This is not, in substance, a new exception, inasmuch as the
commentary to old Rule 1.6 described the circumstances under which a lawyer

might be obligated to comply with a court order or legal obligation to reveal

client information.^^ Revealing confidential client information under these

9 1

.

IND. Prof. Cond. R. 1 .6(b)(2).

92. Both of these provisions had their origin in the original recommendations of the ABA
Ethics 2000 Commission, but in August 2002 the ABA House of Delegates rejected them. They
were resubmitted to the ABA House by the Taskforce on Corporate Responsibility, and in February
2003, the House adopted them.

93. It is unstated here, but certainly the case, that the lawyer's services must have been

unwittingly exploited by the client for fraudulent or criminal purposes. Rule 1 .2(d) prohibits a

lawyer from counseling or assisting a client in criminal or fraudulent conduct, so the lawyer must

refuse. iND. PROF. COND. R. 1.6 cmt. 7; MODEL RULES OF Prof'l Cond. 1.6 cmt. 7.

94. iND. Prof. COND.R. 1.6(b)(4).

95. iND. Prof. COND.R. 1.6(b)(6).

96. Comments [20] and [21] to old Rule 1.6 stated:

Ifa lawyer is called as a witness to give testimony concerning a client, absent waiver by

the client, Rule 1 .6(a) requires the lawyer to invoke the privilege when it is applicable.

The lawyer must comply with the final orders of a court or other tribunal of competent

jurisdiction requiring the lawyer to give information about the client.



2005] PROFESSIONAL RESPONSIBILITY 1279

circumstances, especially when it is non-privileged, is probably best not
described as discretionary. Once the client has declined to pursue or has
exhausted any remedies for testing the limits ofevidentiary privilege, the lawyer

is legally obligated to reveal the client information. Thus, it is discretionary only

in the theoretical sense that the lawyer could decline and risk going to jail for

contempt. The old, related commentary has been replaced with a new Comment
[13] that does not differ in substance from the old comment, but emphasizes the

importance ofthe lawyer consulting with the client about the appropriateness of

appealing from any order or otherwise challenging any legal obligation to reveal

client information.

New Comments [16] and [18] emphasize the lawyer's responsibility to act
competently to safeguard client information, including employing appropriate

law office procedures to guard against inadvertent disclosures of information

related to client representation. Otherwise, the commentary to Rule 1 .6, while

expanded to cover new exceptions and modified for clarity, does not create any
material substantive changes.

The supreme court has retained, in slightly modified form, old Indiana Rule

1.6(c), for which there is no ABA Model Rule counterpart, providing that
disclosure of client names and files may be impliedly authorized to carry out the
duties of a person managing a disabled lawyer's client files.

F. Rule 1.13 Organization as Client

Rule 1.13 generally addresses the special character of the relationship

between lawyer and client when the client is not a natural person. Because the
organizational client, of necessity, interfaces with legal counsel exclusively

through agents (known as "constituents" in the parlance of Rule 1.13), a
challenge faced by the lawyer is identifying and properly acting on information
demonstrating that a corporate agent is engaging in misconduct that puts the

organization's interests at risk. The corporate finance crises ofrecent years have
highlighted the role of counsel for organizational clients to protect the

organization against harm from rogue corporate agents. With respect to publicly
traded corporations. Congress responded in the form ofthe Sarbanes-Oxley Act

of 2002,^^ and the Securities and Exchange Commission responded in the form
ofregulations governing, among other things, professional conduct standards for
lawyers.^^ This background was the catalyst for several significant amendments

The Rules ofProfessional Conduct in various circumstances permit or require a lawyer

to disclose information relating to the representation. See [old] Rules 2.2, 2.3, 3.3 and

4.1. In addition to these provisions, a lawyer may be obligated or permitted by other

provisions oflaw to give information about a client. Whether another provision of law

supercedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but

a presumption should exist against such a supersession.

IND. Prof. Cond. R. 1.6 cmt. 20, 21 (1987).

97. Sarbanes-Oxley Act of2002, Pub. L. No. 107-204, 1 16 Stat. 745.

98. 17 C.F.R.pt. 205(2003).



1280 INDIANA LAW REVIEW [Vol. 38:1255

to Rule 1.13.

When an organization's lawyer becomes aware ofa risk of substantial injury
imposed upon the organization by the conduct or inaction of a corporate agent,
the lawyer's primary responsibility is to make sure that the agent's superiors in
the organizational hierarchy are aware of the situation in order to take

appropriate action. This is sometimes called "going up the ladder." Previously,

Rule 1.13(b) was less directive and more advisory, suggesting going up the
ladder as but one of several alternatives. As amended. Rule 1.13(b) mandates
reporting up the ladder, including, if necessary, to the highest organizational

authority, if a constituent is

engaged in action, intends to act or refuses to act in a matter related to

the representation that is a violation of a legal obligation to the

organization, or a violation of law which reasonably might be imputed

to the organization, and that is likely to result in substantial injury to the

organization.^^

Amended Comment [6] (formerly Comment [5]) clarifies that in order for a
lawyer's obligation to be triggered, the organizational agent's action or inaction

must be related to the lawyer's representation to the organization. However, it

is not necessary for the lawyer's services to have been used in furtherance ofthe

agent's misconduct. This does not mean, of course, that the lawyer is deprived

of discretion to report up the ladder with respect to agent wrongdoing that the

lawyer knows about but that is not related to the representation.
Another new development gives unprecedented authority for the

organization's lawyer to "report out" in order to protect the interests of the

organization as an entity. Ifthe lawyer for the organization reports up the ladder,

and superior organizational agents ratify the misconduct or fail to take timely and

appropriate action, the lawyer may report the misconduct outside of the
organization, but only as necessary to prevent substantial injury to the

organization. ^^^ Significantly, the lawyer is authorized to report out even though

Rule 1 .6 otherwise protects the information from disclosure.
^^*

However, if the

lawyer has been hired to advise the organization or constituents of the

organization about or defend them against alleged violations of the law, that

lawyer does not have authority to report out.'^^

A final amendment to Rule 1.13 provides that if an organization's lawyer is
fired for or withdraws after taking action authorized by Rule 1 . 1 3 to protect the

organization, the now-former lawyer is obligated to inform the organization's

highest authority of the discharge or withdrawal, presumably including the

reasons for the same.

New Comment [4] and amended Comment [5] (formerly Comment [4]) to
Rule 1.13 expand upon the lawyer's obligation to take protective action when the

99. IND. Prof. Cond. R. 1 . 1 3(b).

1 00. iND. Prof. Cond. R. 1 . 1 3(c).

101. iND. Prof. Cond. R. 1 . 1 3(c)(2).

1 02. iND. Prof. Cond. R. 1 . 1 3(d).



2005] PROFESSIONAL RESPONSIBILITY 1281

conduct of an organizational agent puts the organization's interests at risk,

discussing, among other things, when actions short of going up the ladder may
be sufficient. Other new and amended commentary expands upon the new
obligations and authority granted by Rule 1.13. New material has been added to
the comment dealing with lawyers for government agencies indicating that in
light of the public interest involved, "a different balance may be appropriate
between maintaining confidentiality and assuring that the wrongftil act is

prevented or rectified."^^^ But the comment does not say what that different
balance might be.

G. Rule 1.14 Client With Diminished Capacity

Previously described as a rule dealing with clients "under a disability," this

new rule now refers to clients "with diminished capacity. "^^"^ No change in
substance was intended, but the new nomenclature more appropriately focuses
on impairments that cause some diminution in the client's capacity to direct or
otherwise interact with counsel. Rule 1.14(b) has been amended to specify the
circumstances under which a lawyer should take protective action for the client,

including when the client "is at risk of substantial physical, financial or other
harm."'^^ Whereas Rule 1 . 1 4(b) previously spoke specifically only about seeking

the appointment ofa guardian, it now specifies other protective action, including
"counseling with individuals or entities that have the ability to take action to

protect the client, and in appropriate cases, seeking the appointment ofa guardian

ad litem, conservator or guardian."^*^^ New Rule 1 .14(c) addresses the problems
of confidentiality associated with enlisting proxy decision-makers for the client

by providing that revealing information about the client to obtain assistance to
protect the client's interests is impliedly authorized under Rule 1 .6(a) to carry out

the representation. But, the lawyer is cautioned by the same provision that the
lawyer's obligation to protect the confidentiality of a client with diminished

capacity is not otherwise reduced. Expanded commentary gives somewhat more
guidance to lawyers in this inevitably difficult situation.

H. Rule 1.15 Safekeeping Property

Rule 1.15 addresses the duty oflawyers who act as financial fiduciaries over
funds and property of others. The Indiana Supreme Court largely retained its
formulation in Rule 1 . 1 5(b), permitting lawyers to maintain a "nominal balance"

ofthe lawyers' own funds in their trust accounts. This is in contrast to new ABA
Rule 1 .15(b), which provides somewhat more guidance to lawyers by indicating
that the appropriate purpose for holding lawyer funds in the trust account is

limited to paying bank services charges on the account. The ISBA recommended
that Indiana adopt the ABA version. New Comment [2] emphasizes the necessity

1 03

.

IND. Prof. Cond. R. 1 . 1 3 cmt. 9.

104. iND. Prof. CoND.R. 1.14.

1 05

.

iND. Prof. Cond. R. 1 . 1 4(b).

106. Id.



1282 INDIANA LAW REVIEW [Vol. 38: 1255

to maintain account records that clearly identify the portion of a trust account

balance that constitutes the lawyer's own funds.
Following the ABA Model Rule, Rule 1 . 1 5(c) is a new provision stating that:

"A lawyer shall deposit into a client trust account legal fees and expenses that
have been paid in advance, to be withdrawn by the lawyer only as fees are earned
or expenses incurred."*^^ This language, to an extent, codifies the supreme

court's holding in the recent case ofIn re Kendall,^^^ but also raises the question

whether flat or fixed fees must be deposited into trust until earned by some
method ofmeasurement. In Kendall, the court took great pains to explain that it
was not changing its historical position that flat fees are earned upon receipt and
do not need to be deposited into trust. '^^ In light of the recency oi Kendall and

the seeming strength of the court's views on the handling of flat fees set forth
therein, it is the author's view that the court did not intend by the new language
in Rule 1.15(c) to signal a change in its views on handling flat fees.

Rule 1.15(e), formerly 1.15(c), has been amended to clarify one point and
reinforce another. First, old Rule 1.15(c) required a lawyer to retain funds in

trust that were in dispute between the lawyer and another person until the dispute

is resolved. New language in Rule 1.15(e) requires that the lawyer keep fUnds
in trust that are in dispute between "two or more persons" until the dispute is
resolved.^ ^^ Any conftision about whether this rule applies to situations where
the lawyer holds funds that are claimed by both the client and a third party is now
resolved in favor of its application.^ ^^ New Rule 1.15(e) also includes new
language emphasizing the lawyer's obligation to promptly disburse to their

rightful owner money or property that is not in dispute, even when some portion
is disputed.

On a related note, apart from the Ethics 2000 project, in late 2004, the
supreme court announced a change to the Interest on Lawyers Trust Account

(lOLTA) program to require that all lawyers who maintain pooled trust accounts
participate in the lOLTA program. ^ ^^ The court followed up on February 9, 2005
by amending Indiana Rule of Professional Conduct 1.15^^^ and Indiana

Admission and Discipline Rule 23, section 21,^^"^ effective July 1, 2005, to

107. IND. Prof. COND.R. 1.15(c).

108. 804 N.E.2dl 152 (Ind. 2004).

109. Mat 1157-58.
1 1 0. Ind. Prof. Cond. R. 1 . 1 5(e).

111. Indiana case law has previously applied old Rule 1 . 1 5(c) to situations where the lawyer

is a stakeholder of funds in dispute between a client and a third party, often a medical provider of

a personal injury client. See, e.g.. In re Allen, 802 N.E.2d 922 (Ind. 2004).

112. Press Release, Indiana Supreme Court, Legal Aid to the Poor Gets Boost from Supreme

Court: Court to Adopt Universal lOLTA Plan (Nov. 23, 2004), available at http://www.in.gov/

judiciary/press/2004/ 1123b.html.

113. Order Amending Rules ofProfessional Conduct (Feb. 2005), available at http://www.in.

gov/judiciary/orders/rule-amendments/2005/prof-conduct-rl . 1 5-020905.pdf.

1 14. Order Amending Rules ofProfessional Conduct (Feb. 2005), available «? http://www.in.

gov/judiciary/orders/rule-amendments/2005/admis-disc-r23(21)-020905.pdf.



2005] PROFESSIONAL RESPONSIBILITY 1283

implement mandatory lOLTA participation.

/. Rule 1.16 Declining or Terminating Representation

Former Rule 1 . 1 6(b)(3), pertaining to the grounds for permissive withdrawal

from representation, allowed a lawyer to withdraw from representation if the

client insisted on an "objective" that the lawyer found to be repugnant or

"imprudent." As amended in now-Rule 1.16(b)(4), the basis for withdrawal
applies not to disagreement over objectives, but to disagreement over "actions"

to be taken on the client's behalf, and mere imprudence is no longer the standard,

rather "fundamental disagreement" is.

Rule 1 . 1 6(c) has been amended to include new language stating what should
be obvious: a withdrawing lawyer "must comply with applicable law requiring

notice to and permission of a tribunal when terminating a representation."^ ^^

J. Rule 1.17 Sale ofLaw Practice

Amendments to the rule governing sale of a law practice create new options
for both sellers and buyers that did not exist before. Whereas previously the

selling lawyer had to sell the entire law practice and cease privately practicing

law, now the selling lawyer may sell an entire "area of practice," and is only
required to cease private practice in the law practice area that was sold and in the
same "geographic area" as the practice was conducted. ^^^ Moreover, instead of
being required, as before, to sell the entire practice to a single lawyer or law firm,

the selling lawyer may sell the entire practice or area ofpractice to one or more
lawyers or law firms.

Old Rules 1 . 1 7(c)(2) and 1 . 1 7(e), which permitted client fees to be increased

as a condition of the client agreeing to transfer of the file to the purchasing

lawyer, have been amended to preclude any increase in fees by reason ofthe sale.
A complicated issue in the sale of a law practice has been the need to obtain

client consent to transfer files to the purchasing lawyer. Without client consent.

Rule 1 .6 prohibits disclosure of client information to a purchasing lawyer. New
Rule 1.17(c)(3) addresses this problem by providing that a client's consent to
transfer of the file will be presumed if the client takes no affirmative action

within ninety days of receiving notice of the proposed transfer. New language
in the rule goes on to provide that in the event of inability to give actual notice

to a seller's client, transfer of the file to the purchasing lawyer may occur only
upon authorization of a court. In camera disclosure of file information to the
court is authorized, but "only to the extent necessary to obtain an order

authorizing the transfer of a file."^^^

115. IND. Prof. Cond. R. 1.16(c).

116. iND. Prof. Cond. R. 1 . 1 7(a).

1 17. iND. Prof. Cond. R. 1.17(c).



1284 INDIANA LAW REVIEW [Vol. 38:1255

VI. Other Lawyer Roles

A. Rule 2.1 Advisor

Rule 2.1 remains substantially the same, but an amendment to comment [5]
now cautions lawyers that, "when a matter is likely to involve litigation, it might
be necessary under Rule 1.4 to inform the client of forms of dispute resolution

that might constitute reasonable alternatives to litigation."^
'^

B. Rule 2.3 Evaluationfor Use by Third Persons

Previously, Indiana Rule 2.3 allowed a lawyer to provide an evaluation of a

client's affairs for the use ofa third person when the lawyer reasonably believed
that doing so was compatible with other aspects ofthe client-lawyer relationship
and the client consented. Following new ABA Model Rule 2.3, our court has
added a new Rule 2.3(b) cautioning the lawyer who provides the evaluation that,
"[w]hen the lawyer knows or reasonably should know that the evaluation is likely
to affect the client's interests materially and adversely, the lawyer shall not

provide the evaluation unless the client gives informed consent."^ '^ Whereas
previously, explicit client consent was required for all lawyer evaluations for a
third person, now, explicit client consent (albeit not necessarily in writing) is

only required when the evaluation is likely to materially and adversely affect the
client's interests. '^^ This is one application of new language in Rule 1.2(a)
authorizing the lawyer to take action on behalf of the client as impliedly

authorized to carry out the representation.

The new language, together with expanded commentary, especially in
Comment [5], emphasizes that in most circumstances when a lawyer provides an
evaluation for a third party, the client's interests are manifestly served. In harder

cases, where the lawyer's truthfulness in the evaluation, required by Rule 4. 1 ,^^'

will expose the client to materially adverse consequences, the client should be

informed ofthe consequences of exposure and given the opportunity to abandon

the project that generated the need for the evaluation.

C Rule 2.4 Lawyer Serving as Third-Party Neutral
Rule 2.4 is an entirely new rule, identical to ABA Model Rule 2.4,

addressing the special role lawyers often fulfill when they serve as third-party
neutrals. This rule does not purport to create ethical standards for third-party

118. IND. Prof. Cond. R. 2. 1 cmt. 5.

119. iND. Prof. COND. R. 2.3(b).

120. The Indiana State Bar Association's recommendation did not include the provision that

is now iND. Prof. Cond. R. 2.3(b), and it also recommended that the existing client consent

provision be removed. Had this curious, but unexplained, recommendation been followed, lawyers

would have been exposed to client claims that they were deprived ofa choice between an evaluation

harmful to their interests or backing out of the deal that required the evaluation.

121. See also iND. PROF. COND. R. 2.3 cmt. 4.



2005] PROFESSIONAL RESPONSIBILITY 1285

neutrals, rather it addresses the potential for role confusion that might arise when
a lawyer serves as a third-party neutral. Rule 2.4(a) emphasizes that the lawyer-

neutral does not stand in a lawyer-client relationship with any ofthe parties to the

matter. Rule 2.4(b) requires that the lawyer-neutral "inform unrepresented

parties that the lawyer is not representing them."^^^ It expands on this duty by

requiring the lawyer to amplify the lawyer-neutral's role when faced with a party
who manifests a misunderstanding. Helpful commentary has been added,
including reminders that Rule 1.12 governs conflicts ofinterest involving former

lawyer-neutrals ^^^ and that Rules 3.1 and 4. 1 govern the lawyer-neutral's duty of

candor.
^^"^

vn. Lawyers AS Advocates

A. Rule 3.1 Meritorious Claims and Contentions

In a clarifying amendment, the supreme court added the words "in fact and

law" to the Rule 3.1 requirement that there be a non-frivolous basis for the

prosecution or defense of legal proceedings. Comment [2] was amended to
emphasize the lawyer's affirmative duty to become informed of the facts and
applicable law so as to avoid filing factually or legally frivolous pleadings.

Language in Comment [2] has been eliminated that suggested that the lawyer has
an obligation to refrain from pursuing a matter on behalfofa client whose motive
is primarily to harass or maliciously injure another. Thus, the standard for

frivolousness is the objective validity of the client's claim, not the purity of the

client's heart. New Comment [3] points out that constitutional considerations
may obligate lawyers for criminal defendants to pursue matters that they
otherwise should not pursue under this rule.

B. Rule 3.3 Candor Toward the Tribunal

The basic structure of Rule 3.3 remains intact, but there have been several
noteworthy changes. Rule 3 .3(a) previously prohibited lawyers from knowingly

making false statements of material fact or law to a tribunal. ^^^ The court
removed the materiality provision so that any knowing false statement of fact or
law to a tribunal violates the rule. In addition, the court imposed an obligation

on lawyers to correct prior false statements of fact or law if they were material.

Inasmuch as the ethical lawyer will not knowingly make a false statement offact
or law to a tribunal in the first instance, this provision will likely have application

most often to the lawyer who unwittingly makes a false statement of fact or law
and later learns that it was not true when made.

Former Rule 3.3(a)(4), now Rule 3.3(a)(3), addressed the lawyer's duties to
avoid sponsoring false evidence or to remediate the submission offalse evidence.

122. IND. Prof. Cond. R. 2.4(b).

123. iND. Prof. Cond. R. 1 . 1 2 cmt. 4.

124. iND. Prof. Cond. R. 1.12 cmt. 5.

125. "Tribunal" is defined in iND. Prof. Cond. R. l.O(m).



1286 INDIANA LAW REVIEW [Vol. 38:1255

Previously, the lawyer's duty to act arose only when the lawyer directly
sponsored the false evidence. Now, the lawyer's duty to act has been expanded
to also include circumstances when false evidence is elicited on cross-
examination from the lawyer's client or a witness called by the lawyer. ^^^ When
false testimony is given under these circumstances, old Rule 3.3(a)(4) required

the lawyer to take "remedial measures." Drawing upon text previously found
only in the commentary, amended Rule 3.3(a)(4) now includes a provision that
remedial measures include "if necessary, disclosure to the tribunal.

"^^^

The ethical prohibition against offering false testimony still applies to
testimony that the lawyer "knows"'^^ is false. As before, but with one caveat, the
lawyer retains discretion to refuse to offer evidence the lawyer "reasonably

believes"^^^ is false.
^^*^ The caveat is that the court carved out a special exception

in Rule 3.3(a)(3) for criminal defense lawyers who do not have the discretion to
refuse to offer the testimony oftheir client if the lawyer reasonably believes, but

does not know, that the testimony will be false. This last point was not without
controversy within the court. In a dissent, ChiefJustice Shepard opined that this

was a bad idea that would detract from bench and bar efforts to build "public
confidence and trust in the courts and the legal profession."^^^ Justice Dickson

joined the Chief Justice's dissent.

Additionally, a new Rule 3.3(b) was added providing that:

A lawyer who represents a client in an adjudicative proceeding and who
knows that a person intends to engage or has engaged in criminal or
fraudulent conduct related to the proceeding shall take reasonable

remedial measures, including, if necessary, disclosure to the tribunal.
^^^

This provision broadly imposes on all counsel a duty to take action at any time

the lawyer knows of criminal or fraudulent conduct that has tainted or will taint
a legal proceeding.

'^^

The commentary to Rule 3.3 has been modified to a considerable extent.
Comment [1] clarifies that this rule applies to proceedings ancillary to a
tribunal's adjudicative function, such as depositions. Comment [5] states that it
is not a violation of this rule for a lawyer to establish a fact as a predicate to

thereafter proving its falsity, such as one might do prior to impeaching a witness.

Comment [6] provides that a lawyer may call a witness who is inclined to testify
falsely on certain matters so long as the testimony is limited to matters the lawyer

126. See IND. PROF. COND. R. 3.3 cmt. 10.

127. iND. Prof. Cond. R. 3.3(a)(4).

128. "Knows" is defined in iND. PROF. COND. R. 1.0(f).

129. "Reasonably believes" is defined in iND. PROF. COND. R. 1 .0(i). "Reasonably" is defined

in 1.0(h), and "believes" is defined in 1.0(a).

130. iND. PROF. COND. R. 3.3(a)(3).

131. See Order Amending Rules of Professional Cond. (Sept. 2004) (Shepard, C.J.,

dissenting).

132. iND. Prof. Cond. R. 3.3(b).

133. See iND. PROF. COND. R. 3.3 cmt. 12.



2005] PROFESSIONAL RESPONSIBILITY 1287

knows are not false. Comment [9] notes that the local law of some jurisdictions
may permit, with judicial approval, the use of narrative testimony of a criminal
defendant, even though the lawyer for that defendant knows the testimony is
false.

^^"^ Much of the old, ambivalent commentary in former Comments [7]
through [10] about anticipated or completed perjury of a criminal defendant has

been eliminated in favor of the rule's black letter construction requiring the

lawyer to implement the criminal defendant's decision to testify in all cases

except when the lawyer knows the client will testify falsely. Comment [10]
addresses the lawyer's obligation to act when a client or witness called by the
lawyer (including a criminal defense client) surprises the lawyer by giving

testimony the lawyer knows to be false or when, before the conclusion of the
proceeding, the lawyer comes to find out that a client or witness called by the
lawyer gave false testimony. The comment advises that the lawyer must
remonstrate with the client or witness to correct the testimony, and failing that,

disclose to the tribunal, even though revelation of the information would
ordinarily violate the lawyer's confidentiality duties imposed by Rule 1.6.

Comment [10] goes on to caution that withdrawal from representation under
these circumstances will generally be ineffective if it leaves the false testimony

uncorrected. Rule 3.3(c) imposes a duty on counsel to correct known, false

testimony up to the conclusion of the proceeding, and an addition to Comment
[13] clarifies that the conclusion of the proceeding occurs when there is a final
judgment that has not been appealed or has been affirmed on appeal. Finally, a

new Comment [15] discusses when a lawyer's actions in conformity with the
obligations imposed by Rule 3.3 might require that the lawyer seek leave to
withdraw from representing the client.

C. Rule 3.4 Fairness to Opposing Party and Counsel

Rule 3.4 is unchanged accept for additional language in Comment [3]
addressing a lawyer's obligation when coming into possession of physical
evidence that implicates a client in a crime. Rather than clearly articulating the

lawyer's duties under that circumstance, the comment merely refers to the fact
that applicable law may allow the lawyer to take control of the evidence for a
reasonable period oftime to conduct non-destructive testing, but may thereafter
be required by applicable law to turn the evidence over to law enforcement
authorities. It is probably reading too much into this comment, which follows the
ABA model, to suggest that it represents an affirmative statement by the Indiana
Supreme Court of law on the subject.

D. Rule 3.5 Impartiality andDecorum ofthe Tribunal

The general prohibition on ex parte proceedings found in Rule 3.5(b) has
been amended to permit an ex parte proceeding when authorized by court order

1 34. While the practice in Indiana's trial courts in unknown, there is no appellate authority in

this state approving the narrative testimony method of dealing with known perjury by a criminal

defendant.



1288 INDIANA LAW REVIEW [Vol. 38:1255

in addition to, as previously, when authorized by law. New language also
indicates that the prohibition on ex parte communications extends throughout the
duration ofa legal proceeding, but not beyond. A new, related Comment [2] has
been added, but contributes little of substance.

Rule 3.5(c) is entirely new material dealing with post-trial communication
with jurors or prospective jurors. Such communication is ethically prohibited
when prohibited by law or court order, when a juror indicates that such
communications are unwelcome, or when the communication involves
"misrepresentation, coercion, duress or harassment."^^^ A related Comment [3]
has been added.

New Comment [5] points out that the prohibition in Rule 3.5(d) against
disruptive conduct before a tribunal extends, as well, to conduct during a

deposition.

E. Rule 3. 6 Trial Publicity

Indiana's rule governing trial publicity previously departed fromABAModel
Rule 3.6 to the extent that the Indiana rule purported to apply to all lawyers,

regardless of whether they were participating in the case. This broad sweep of
the rule raised some interesting, but untested, questions about the
constitutionality of its application to Indiana lawyers who act as media
commentators on trials of great public interest. Now amended to conform to
language that previously existed and still exists in ABA Model Rule 3.6, Indiana
Rule 3.6 now applies only to "[a] lawyer who is participating or has participated
in the investigation or litigation ofa matter."^^^ Another conforming amendment,

necessary because of the narrower application of the amended rule, appears in
Rule 3.6(e), imputing the prohibitions of Rule 3.6 to all lawyers associated in a

firm or government agency with the lawyers participating directly in the case.

Previously, the rule governing trial publicity applied a "reasonable person"

standard to the question ofwhether a lawyer should have known that a statement
would be publicly disseminated, but applied an actual knowledge (subjective)
and "reasonable lawyer" (objective) standard to the question of whether the

public statement would have a substantial likelihood ofmaterially prejudicing the
proceeding. Rule 3.3(a) now applies the actual knowledge and "reasonable
lawyer" standard to both questions.

In another amendment that represents Indiana falling into line with the pre-
Ethics 2000 ABA model rules, our supreme court has added new text to Rule
3.3(c) providing that the normal limitations on trial publicity are qualified when
a lawyer's client is the target of trial publicity from an outside source. Rule

3.3(c) now states:

[A] lawyer may make a statement that a reasonable lawyer would believe
is required to protect a client from the substantial undue prejudicial

effect of recent publicity not initiated by the lawyer or the lawyer's

135. IND. Prof. Cond. R. 3.5(c).

136. iND. Prof. Cond. R. 3.6(a).



2005] PROFESSIONAL RESPONSIBILITY 1289

client. A statement made pursuant to this paragraph shall be limited to
such information as is necessary to mitigate the recent adverse

publicity."^''

In a significant departure from ABA Model Rule 3.6, and a departure from
the recommendation of the ISBA, the Indiana Supreme Court has retained as

Rule 3.6(d) a list of six categories of statements that are rebuttably presumed to

have a substantial likelihood of materially prejudicing an adjudicative

proceeding. This same list appears in Comment [5] to ABA Model Rule 3.6, but
without any reference to a rebuttable presumption.

F. Rule 3. 7 Lawyer as Witness

No changes of substance appear in Rule 3.7, but the commentary has been
amended to add several points ofemphasis. First, throughout the comments new
language has been added to stress that combining the roles of advocate and

witness can be prejudicial to the tribunal, as well as to the opposing party.

Comment [6] has been modified and new Comment [7] added to expand on the
circumstances when an advocate's testimony as a witness may also present a
disqualifying conflict of interest under Rule 1.7 or Rule 1.9, thereby triggering

an imputation of the conflict of interest to the law firm that does not otherwise

apply in a pure advocate-witness scenario.

G. Rule 3.8 Special Responsibilities ofa Prosecutor

Two changes to Indiana Rule 3.8 bring Indiana into conformity with ABA
Model Rule 3.8 as it predated the Ethics 2000 process. First, the court added
Rule 3.8(e) to impose special requirements on prosecutors who seek to subpoena
lawyers to testify or produce evidence before a grandjury or criminal proceeding

when the evidence relates to a past or present client. The requirements are that
the prosecutor must reasonably believe that the information is not privileged, the

evidence is essential to the success of the matter, and there is no feasible

alternative. A related Comment [4] has been added.
Second, additional language was added to Rule 3.8(f) stating that, "except

for statements that are necessary to inform the public ofthe nature and extent of

the prosecutor's action and that serve a legitimate law enforcement purpose, [a

prosecutor shall] refrain from making extrajudicial comments that have a
substantial likelihood ofheightening public condemnation ofthe accused."^^^ A
related Comment [5] has been added, including a cross-reference to the
applicable provision ofRule 3.6 governing trial publicity. Also, a new Comment
[6] was added to explicate the prosecutor's special responsibility, already
recognized in the black letter rule, to use reasonable measures to exercise control

over the extrajudicial statements of others involved in the prosecution fimction,

including law enforcement personnel.

137. IND. Prof. Cond. R. 3.3(c).

138. iND. Prof. Cond. R. 3.8(f).



1290 INDIANA LAW REVIEW [Vol. 38:1255

In Comment [1], language was removed that previously implied that grand
jury proceedings are governed by Rule 3 .3(d) pertaining to ex parte proceedings.
Comment [2] was amended to caution prosecutors against seeking waivers of
important pretrial rights from unrepresented defendants.

H. Rule 3.9 Advocate in Nonadjudicative Proceedings

No substantive changes have been made to the text ofthe rule. However, the
commentary has been expanded to clarify that the rule has relatively narrow
application to lawyers who represent clients in official hearings or meetings, and
not to representation of clients in making applications or reports to government
entities or in responding to government investigations or examinations of client

affairs.

VIII. Lawyer Relationships WITH Third Parties

A. Rule 4.1 Truthfulness in Statements to Others

Indiana's only amendment to Rule 4.1 now brings the rule into conformity
with the corresponding ABA model rule as it predated the Ethics 2000 project.
Rule 4.1(b) now prohibits a lawyer from knowingly "fail[ing] to disclose a
material fact to a third person when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client, unless disclosure is prohibited by Rule
1
.6."'^^ Previously, the rule simply required disclosure of"that which is required

by law to be revealed. "^"^^ In both instances, the prohibitions incorporate, albeit
somewhat differently, law external to the rules.

Comment [1] to Rule 4. 1 has been expanded to mention that half-truths and
omissions that are the equivalent of affirmative misstatements will also violate

the rule requiring a lawyer to refrain from false statements ofmaterial fact or law

to third persons. Comment [3], concerning the challenges faced by lawyers
whose clients are engaged in criminal or fraudulent conduct, has been
significantly expanded. It refers to the lawyer's duties under Rule 1 .2(d) to not

assist a client in criminal or fraudulent conduct, and it advises that in some
circumstances, simple withdrawal from representing the client maybe inadequate
unless the lawyer, without violating Rule 1.6, communicates the fact of

withdrawal to others and disaffirms any workproduct that the lawyer unwittingly
supplied in furtherance of the client's crime or fraud.

B. Rule 4.2 Communication With Person Represented by Counsel

Rule 4.2, pertaining to direct communications with a represented person, has

been amended in two noteworthy ways. First, the prior reference to direct
communications with a represented "party" has been replaced by reference to

communications with a represented "person." This incorporates into the text of

139. IND. Prof. Cond. R. 4. 1

.

140. iND. Prof. Cond. R. 4.1 (1983).



2005] PROFESSIONAL RESPONSIBILITY 1291

the rule a concept that previously appeared only in the commentary to the rule,

and clearly extends the rule to communications with represented persons who are
not formally parties to a proceeding or other matter. The ABA made this change
to Model Rule 4.2 several years before the Ethics 2000 process. Second, the text

of the rule, which previously allowed an exception when the communication is
authorized by law, has now been expanded to include communications
authorization by court order, and related Comment [6] was added.

The court made important changes to the commentary to Rule 4.2, including
an articulation ofthe rationale for the rule in new Comment [1]. New Comment
[3] addresses how a lawyer should respond when it is the represented person who
initiates the contact. In that event, the lawyer is instructed to immediately

terminate the contact upon learning that it is from a person who is known to be
represented in connection with the matter.

Comment [4] includes clarifying language on three points: First, Rule 4.2
does not prohibit a lawyer who has no client involved in the matter in question
from speaking directly with a represented person. Examples ofthis include when
a represented client seeks a second opinion or when a represented client consults
with different counsel about taking over the client's representation. Second, a

lawyer may not do indirectly what the lawyer may not do directly by using an
agent or other intermediary to communicate directly with a represented person.

And third, in recognition of the fact that represented clients my communicate
directly with each other, a lawyer is not prohibited from advising the client

concerning that client's direct communications with another represented person.

Arguably, the most important change to Rule 4.2 is in Comment [7],
pertaining to lawyer communications with agents ofan organization known to be
represented by counsel. A long-standing debate has focused on how broadly or
narrowly the umbrella of organizational protection should be drawn to keep

organizational agents off limits to ex parte contacts. Previously, organizational

agents who were off limits were, "persons having a managerial responsibility on
behalf of the organization, and with any other person whose act or omission in

connection with that matter may be imputed to the organization for purposes of
civil or criminal liability or whose statement may constitute an admission on the
part of the organization."^"^^ A reading of the language, "whose statement may
constitute an admission on the part of the organization," together with the

evidence rule governing vicarious admissions by party agents, Evid. R.

80 1 (d)(2)(D), ^"^^ led to a common understanding that the rule kept large numbers
of organizational agents off limits to ex parte contacts. Comment [7], as
amended, replaces the category of"persons having a managerial responsibility,"

with the category of"a constituent ofthe organization who supervises, directs or
regularly consults with the organization's lawyer concerning the matter or has

14L IND. Prof. Cond. R. 4.2 cmt. (1987).

142. iND. Evid. R. 801(d)(2)(D) states: "A statement is not hearsay ifthe statement is offered

against a party and is a statement by the party's agent or servant concerning a matter within the

scope of the agency or employment, made during the existence of the relationship."



1292 INDIANA LAW REVIEW [Vol. 38: 1255

authority to obligate the organization with respect to the matter."^"^^ And it
eliminates the category of any person "whose statement may constitute an
admission on the part ofthe organization," thus substantially narrowing the scope

ofthe rule's application to represented organizations. Comment [7] also advises
that consent ofcounsel for the organization is not required before communicating

with a former organizational agent, but cautions that any authorized ex parte

contact with a former agent must not intrude on the legal rights of the

organization.

C. Rule 4.3 Dealing With Unrepresented Persons

Drawing into the text ofthe rule a concept that was previously found only in
the comment. Rule 4.3 now provides that a lawyer must not give legal advice,
other than the advice to secure counsel, to any unrepresented person whose
interests are known or reasonably known to the lawyer to be in conflict with the
interests of the lawyer's client. New language in Comment [1] further provides
that a lawyer dealing with an unrepresented person will usually need to identify

the lawyer's client and, when necessary to avoid misunderstanding, explain that
the client's interests are opposed to the third person's interests. A new Comment
[2] expands on the rule and explicates the distinction between dealing with

neutral third persons and third persons whose interests oppose the interests ofthe
client.

D. Rule 4. 4 Respectfor Rights ofThird Persons

Handling receipt of misdirected, confidential communications has

increasingly become a topic of contention with the development of new means
ofinstantaneous communication technology. The precise contours ofa lawyer's

ethical duties upon receiving a misdirected communication from opposing

counsel have been hotly debated. Following the ABA model, the court added
Rule 4.4(b) to provide that the lawyer who receives a document that is known to
have been misdirected has a duty to notify the sender. New Comment [2]
emphasizes that the ethical duty begins and ends with notification, and any other

obligations imposed upon the receiving lawyer are questions of law, not ethics.

It also notes that the term "document" includes electronic communications. New
Comment [3] indicates that a lawyer's choice to return a misdirected
communication unread, while not required by the rule or law, is a decision that

should be reserved to the lawyer, rather than the client, as an exercise of

professional judgment.

143. IND. Prof. Cond. R. 4.2 cmt. 7 (2005).



2005] PROFESSIONAL RESPONSIBILITY 1293

IX. The Organization of the Practice of Law

A. Rule 5.1 Responsibilities ofPartners, Managers, and Supervisory
Lawyers; Rule 5.2 Responsibilities ofa Subordinate Lawyer; and

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

Together, Rules 5.1 through 5.3 describe duties of lawyers who act as
supervisors or who are supervised. Each of these rules has been amended to
replace the narrow concept ofthe traditional law partnership as the paradigm for

describing law firm^'^'^ hierarchies with more generic language applicable, as well,

to professional corporations and other limited liability entities.
^"^^

Also,

Comment [2] to Rule 5.1 and Comment [2] to Rule 5.3 were added to emphasize
the point that lawyers who function as managers must establish internal policies
for all employees designed to assure compliance with the Rules of Professional

Conduct.

B. Rule 5.4 Professional Independence ofa Lawyer

Rule 5.4(a)(2) previously pertained only to compensation paid to a deceased

lawyer's estate by a lawyer who completes unfinished cases, allowing
compensation in an amount that fairly represents the deceased lawyer's pro rata

contribution to the total work on a matter. This provision has now been
expanded to conform the Indiana rule to ABA model rule language predating the
Ethics 2000 project. With this amendment, the rule applies to completion ofthe

legal work of lawyers who are deceased, disabled or have disappeared, and the
compensation allowed to that lawyer's representative is the purchase price

negotiated pursuant to the terms of Rule 1.17, governing sale of all or part of a

law practice.

ABA Model Rule 5.4(a)(4) includes a new provision authorizing a lawyer to
"share court-awarded legal fees with a non-profit organization that employed,

retained or recommended employment of the lawyer in the matter."^"^^ The
Indiana Supreme Court chose not to include that language in Indiana Rule 5.4,
but did not explain the reasoning behind its rejection. The reporter's notes for
the ABA Ethics 2000 Commission explained that this provision codified ABA
Formal Ethics Opinion 93-374 (1993), authorizing fee sharing in certain types of

pro bono litigation. However, applying as it does to any not-for-profit
organization, the new language in ABA Model Rule 5.4(a)(4) creates a broader
exception to the general rule against fee sharing than did that ethics opinion. The
court's rejection may signal its concern that the ABA rule's exception was too

144. "Law firm" is defined in Rule 1 .0(c).

145

.

Admission and Discipline Rule 27 regulates the use oflimited liability entities by lawyers

for practicing law. Similar new language was added to Rule 5.4(d)(2), the rule prohibiting non-

lawyer control of law firms, to clarify that it is the concept of control that is forbidden, rather than

the specific title of corporate director or officer. And Rule 5.6(a), pertaining to agreements

restricting the right ofa lawyer to practice law, was similarly amended to update the nomenclature.

146. Model Rules OF Prof'lCond. 5.4(a)(4).



1294 INDIANA LAW REVIEW [Vol. 38: 1255

broad, or perhaps that the court did not want to provide special treatment for
public interest litigation. In the end, it is fruitless to speculate about the meaning
of a non-event, especially when that meaning may have five different variants,
one for each justice.

C Rule 5.5 Unauthorized Practice ofLaw; Multijurisdictional
Practice ofLaw

Previously dealing only with the unauthorized practice oflaw, the ABA, and
now the Indiana Supreme Court, have used Rule 5.5 and its commentary as a
platform for extensive rules governing multijurisdictional practice—the practice
of law by lawyers in jurisdictions where they are not regularly admitted to
practice. To date, only Indiana, Arizona, Delaware, Maryland and Oregon have
adopted the ABA model rule provisions on multijurisdictional practice without
substantial change.

^"^^

Multijurisdictional practice is a topic that is far too rich to adequately cover

in a briefsummary. The ABA Center for Professional Responsibility follows the
issue closely and has posted much useful information on its website. ^"^^ The
interested reader is encouraged to visit that site for more details.

The rules governing multijurisdictional practice recognize that modem law
practice often involves litigation and transactional matters implicating more than

a single jurisdiction. Law practice is increasingly regional, national and even
international in scope. Still, the default position of the rule remains that non-

Indiana lawyers may not engage in the practice of law in Indiana unless it is
authorized. This means, among other things, that, unless otherwise authorized,
a non-Indiana lawyer may not "establish an office or other systematic and
continuous presence" for the practice of law in Indiana. ^"^^ And a non-Indiana
lawyer may not hold him or herself out as being admitted to practice in
Indiana.^^^

Non-Indiana lawyers are, however, authorized to engage in certain temporary

or limited activities in Indiana. Rule 5.5(c) authorizes several categories of

temporary activity in Indiana. First, temporary legal services may be provided
in Indiana ifundertaken in association with and active participation by an Indiana

lawyer.
^^^

Second, a non-Indiana lawyer may provide legal services in Indiana

147. See State Implementation ofABA Model Rules (May 12, 2005), at http://www.abanet.
org/cpr/jclr/5_5_quick_guide.pdf.

148. See http://www.abanet.org/cpr/mjp-home.html (last visited Apr. 7, 2005).

149. IND. Prof. COND. R. 5.5(b)(1). The Indiana Supreme Court added the following sentence

to Comment [4] to Rule 5.5 that does not appear in the comments to Model Rule 5.5: "For example,

advertising in media specifically targeted to Indiana residents or initiating contact with Indiana

residents for solicitation purposes could be viewed as systematic and continuous presence." iND.

Prof. Cond. R. 5.5 cmt. 4.

150. iND. Prof. Cond. R. 5.5(b)(2).

151. iND. Prof. Cond. R. 5.5(c)(1). Indiana Admission andDiscipline Rule 3 requires pro hac

vice admission when a matter is before a tribunal.



2005] PROFESSIONAL RESPONSIBILITY 1295

that are in or reasonably related to a pending or potential legal proceeding,

arbitration or other alternative dispute resolution matter in Indiana or elsewhere

in which the non-Indiana lawyer is authorized or reasonably expects to be

authorized to appear. ^^^ One example of the application of this provision is that
a foreign lawyer may enter Indiana in order to take a deposition of an Indiana
witness in connection with litigation pending in the foreign lawyer's home state,
without associating with Indiana counsel. And third, a non-Indiana lawyer may
generally provide temporary legal services in Indiana that "arise out of or are

reasonably related to the lawyer's practice in a jurisdiction in which the lawyer

is admitted to practice."^"

Two categories of foreign lawyers are also authorized to practice law on an
indefinite, albeit limited, basis in Indiana. First, a foreign lawyer in good
standing may provide legal services in Indiana to his or her employer or an
organizational affiliate of his or her employer so long as the services do not

pertain to a matter in a forum that requires pro hac vice admission. ^^"^ Thus in-

house counsel may be present in and provide legal services to an employer
without being regularly admitted to practice in Indiana. Comment [17] reminds
in-house counsel that Admission and Discipline Rule 6, sections 2 through 5,
dealing with business counsel licensure, will apply to in-house counsel who
establishes an office or other systematic presence in Indiana. Second, foreign

lawyers are generally permitted to practice law in Indiana to the extent authorized

by federal law or other Indiana law.^^^ So for example, by virtue of the
supremacy of federal law, a foreign lawyer may engage in an Indiana law
practice that is limited to the federally preempted field of immigration and

naturalization law.

Extensive new commentary explicates the multijurisdictional practice
provisions.

X. Public Service Responsibilities of Lawyers: Rule 6. 1 Pro Bono
Publico Service

The supreme court chose to retain its existing rule on pro bono services
rather than adopt ABA Model Rule 6.1. As in the past, neither rule imposes an
obligation to engage in pro bono activities, although it is strongly encouraged.

^^^

152. IND. Prof. Cond. R. 5.5(c)(2)-(3).

153. iND. Prof. Cond. R. 5.5(c)(4).

154. iND. Prof. Cond. R. 5.5(d)(1).

155. iND. Prof. Cond. R. 5.5(d)(1).

156. The old rule governing Indiana ' s voluntary attorney pro bono plan, Rule 6.5, remains the

same, but has been renumbered as Rule 6.6.



1296 INDIANA LAW REVIEW [Vol. 38: 1255

XL Information About Legal Services: Rule 7.2 Publicity and
Advertising; Rule 7.3 Recommendation or Solicitation of
Professional Employment; Rule 7.4 Communication of
Specialty Practice; and Rule 7.5 Professional Notices,

Letterheads, Offices, and Law Lists

Notwithstanding the supreme court's inclination to follow the ABA model
rules, in the area ofpublicity, advertising, and solicitation, the court rejected the

corresponding ABA model rules and chose to retain its existing rules with minor
modifications. Aside from renumbering the applicable rules,

^^^
the amendments

largely take account of new communications technologies that did not exist or
were not in common use when the Indiana Rules of Professional Conduct were
first promulgated. Thus, Rule 7.3(a), prohibiting in-person solicitation, now
includes "real-time electronic contact" as a prohibited method of direct
solicitation; and Rule 7.3(c), governing targeted solicitations, includes electronic

communications among the methods of communication regulated by that
provision.

Another change to the rules on lawyer publicity includes a new exception in
Rule 7.3(a) allowing in-person solicitation when the solicited person has a
"family or prior professional relationship with the lawyer. "'^^ As in the past,
targeted solicitation communications must be filed with the Disciplinary

Commission at or prior to dissemination. But at the Commission's urging, the

court included a fifty-dollar filing fee for each filing with the Commission.

Because the use oftargeted solicitations is pure economic activity, the filing fee

was added in order to impose the Commission's administrative costs on the
lawyers who choose to engage in that activity rather than have non-users
subsidize those costs through their annual registration fees.

Rule 7.4 generally restricts the ability of lawyers to publicize that they

specialize in a particular field oflaw unless they are certified as specialists under

Indiana Admission and Discipline Rule 30. The court included an exception for

lawyers admitted to practice before the United States Patent and Trademark

Office and lawyers engaged in admiralty practice.
^^^

XII. Professional Integrity

A. Rule 8.3 Reporting Professional Misconduct

Rule 8.3, governing the duty to report known, serious misconduct of another

lawyer, remains substantially the same, with one exception. Unlike ABA Model
Rule 8.3, Indiana Rule 8.3(c) now contains a reporting exemption for lawyers
who obtain information about the misconduct "while providing advisory opinions
or telephone advice on legal ethics issues as a member of a bar association

1 57. Former Rule 7. 1 became Rule 7.2, former Rule 7.2 became new Rule 7.5, and Rule 7.

1

was reserved for future use.

158. IND. Prof. Cond. R. 7.3(a).

159. iND. Prof. Cond. R. 7.4(c).



2005] PROFESSIONAL RESPONSIBILITY 1297

committee or similar entity formed for the purposes of providing such opinions

or advice and designated by the Indiana Supreme Court.
"^^^

B. Rule 8.4 Misconduct

Following the ABA model rule, the court amended Rule 8.4(e) by adding to
the prohibition against stating or implying an ability to improperly influence a

public agency or official an additional prohibition against stating or implying an

ability to achieve results by illegal means or means that violate the Rules of
Professional Conduct.

Indiana Rule 8.4(g) prohibits lawyers from engaging in conduct as lawyers

that manifests bias or prejudice. This provision, which pre-dates Ethics 2000,

was based on an ABA provision that appears in the comments to ABA Model
Rule 8.4, not in its black-letter text. Comment [3] to ABA Model Rule 8.4 also
provided that, "[a] trial judge's finding that peremptory challenges were

exercised on a discriminatory basis does not alone establish a violation of this

rule."^^^ Amended Indiana Rule 8.4(g) now includes this identical language in
the text of the rule.

C. Rule 8.5 Disciplinary Authority; Choice ofLaw

The same influences that prompted the multijurisdictional practice
amendments to Rule 5.5 were also the catalyst for amendments to Rule 8.5,
establishing criteria for determining when and to whom Indiana's disciplinary
rules will apply. Rule 8.5(a) describes the scope of the court's disciplinary

jurisdiction, and includes any lawyer admitted to practice in Indiana, no matter

where the conduct occurs, as well as any non-Indiana lawyer providing or

offering to provide legal services in Indiana. The rule notes that application of
this principal might simultaneously subject a lawyer to disciplinary authority in

more than one jurisdiction.
Rule 8.5(b) establishes choice of law standards. If the conduct in question

is in connection with a proceeding before a tribunal, the rules ofthe jurisdiction

where the tribunal sits will apply. ^^^ For conduct that is not in connection with

such a proceeding, the rules of the jurisdiction where the conduct occurred or

where the conduct has predominant effect will apply. ^^^ Indiana Rule 8.5(b)(2)

differs from ABA Model Rule 8.5(b)(2) in that the ABA model rule includes the
following safe harbor, whereas the Indiana rule does not: "A lawyer shall not be
subject to discipline if the lawyer's conduct conforms to the rules of a

jurisdiction in which the lawyer reasonably believes the predominant effect ofthe

lawyer's conduct will occur."'^"^ Indiana's commentary to Rule 8.5 deviates from
the commentary to ABA Model Rule 8.5 in parallel with this difference, all the

160. IND. Prof. Cond. R. 8.3(c).

161. iND. Prof. Cond. R. 8.4 cmt. 3.

162. iND. Prof. Cond. R. 8.5(b)(1).

163. iND. Prof. Cond. R. 8.5(b)(2).

164. Model Rules of Prof'l Cond. 8.5(b)(2).



1298 INDIANA LAW REVIEW [Vol. 38: 1255

more reason for the states to have professional conduct rules that are as similar
as possible.

XIII. Summary

The amended Indiana Rules ofProfessional Conduct contain new provisions
that will, to some degree, affect the professional life of every Indiana lawyer.
Most of the changes are subtle, with the foundations and most of the
superstructure of the old rules intact. The end result reflects the time, energy,
and thoughtfulness ofthousands oflawyers andjudges nationally and in Indiana.

While a point here or there might be debatable, the final product is clearly an

improvement over that which came before—which was the goal when the ABA
initiated the Ethics 2000 project in 1997.

XIV. Case Update

A. Attorney Fees

As noted in prior surveys on professional responsibility, the Indiana Supreme
Court has been very active over the past several years in developing a body of

cases that address a wide variety of ethical problems surrounding the charging

and collection oflegal fees. Recent cases include In re Hefron,^^^ In re Hailey,^^^

and In re Kendall}^^ Not long after Kendall, the supreme court decided another
disciplinary action covering an important fee-related issue for the practicing bar:

renegotiating the fee mid-representation. In In re Breunig,^^^ the court was
presented with a settlement proposal between the respondent lawyer and the

Disciplinary Commission that resolved the case with a sixty-day suspension from

the practice of law.^^^ The first count of misconduct presented by the
Disciplinary Commission involved the respondent's conflict of interest in
protecting his fee claim against the client. Although the violation agreed to

sounds in conflict of interest analysis, the facts grow out of the respondent's
actions involving his fee.

In Breunig, the lawyer represented a client in connection with a marriage

dissolution matter that took a considerable amount oftime and involved litigation

in both the states of Indiana and Florida. After about two years, the lawyer sent

the client a bill for approximately $385,000 for almost 2,000 hours ofwork and
extensive expenses that included paying for the lawyers in Florida. Thereafter,

the client paid about $ 1 50,000 or about thirty-seven percent ofthe bill. At a later

meeting, the lawyer obtained the client's signature on a promissory note for the

165. 771 N.E.2d 1 157 (Ind. 2002).

166. 792 N.E.2d 851 (Ind. 2003).

167. 804 N.E.2d 1 152 (Ind. 2004).

1 68. 810 N.E.2d 7 1 6 (Ind. 2004).

169. Count II of Breunig involved the lawyer's short-term romantic and sexual relationship

with his client. This is, of course, serious misconduct in its own right but not the focus of

consideration for this survey.



2005] PROFESSIONAL RESPONSIBILITY 1299

outstanding balance of the bill with the note's maturity date being the time of a

property distribution and the accrual ofeight percent interest on the outstanding

balance. The respondent lawyer also obtained the client's signature on a writing

termed an "assignment" that would assign to the respondent any outstanding
balance from any property division settlement. In engaging in this negotiated

resolution ofhis fee claim, he did not provide the client with a written disclosure

of the terms of the transaction, tell the client to seek the advice of independent

counsel or obtain her written consent. '^^ All of these are terms required under

Rule 1.8(a).^'^

Rule 1 .8 is entitled, "Conflict ofInterest: Prohibited Transactions" ^^^ and the

explanatory Comment for subdivision (a) is entitled "Transactions Between
Client and Lawyer." Like the rest ofthe conflict of interest rules, this provision

is clearly intended to protect the client from overreaching by the lawyer. The
lawyer must explain the transaction in writing in a manner in which the client can
understand what is being done. The client's consent must be obtained in writing
as well. Under the 2005 version of the rule, the client's consent must be
"informed consent." The Comment generally makes clear that this rule does not
apply to ordinary transactions between the lawyer and the client where, for

example, the lawyer uses the client's services for health care or real estate

transfers. In those circumstances, the lawyer does not have any advantage over

the client or other consumers ofthe client's products or services. The Comment
to the revised rule also makes it plain that this rule does not necessarily apply to
the lawyer's fee agreement with the client in the first instance. Hence, the

problem in Breunig is highlighted. There is nothing in the disciplinary case to

suggest that there was any problem with the fee agreement as it began and existed
for at least a couple of years during the representation. The problematic
transaction for the lawyer occurred when he took a promissory note from the
client that was not contemplated by the original fee deal with the client. The
promissory note was at interest and thereby increased the lawyer's compensation
overall. One could argue that the client got a benefit from the deal as well: she
did not have to make full payment immediately and did not have to find a new

170. In re Breunig, 810 N.E.2d at 716-17.

171. IND. Prof. Cond. R. 1 .8(a) provides:

(a) A lawyer shall not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security or other pecuniary interest adverse to a client

unless:

( 1

)

the transaction and terms on which the lawyer acquires the interest are fair

and reasonable to the client and are fully disclosed and transmitted in writing

to the client in a manner which can be reasonably understood by the client;

(2) the client is given a reasonable opportunity to seek the advice of

independent counsel in the transaction; and

(3) the client consents in writing thereto.

172. The Ethics 2000 amendments described earlier in this article changed the rule's title to

"Conflict of Interest: Current Clients: Specific Rules" and the title to the Comment to "Business

Transactions Between Client and Lawyer."



1300 INDIANA LAW REVffiW [Vol. 38:1255

lawyer due to the respondent lawyer's withdrawal for the non-payment ofhis fee.

These are true and valid observations that show that benefits inured to both sides
ofthis transaction. The problem, despite the apparent fairness ofthe deal, is that
the lawyer had an obligation to refer the client to independent counsel, which he
did not do.'^^ The Restatement gives a clear explanation ofthe rationale for the
specific requirements for engaging in this conduct. One ofthe dangers is that the
lawyer's skill and training will be used to arrange the form of the transaction

such that his deeds and advice might work to the lawyer's interests rather than
advancing those of the client. Proving such overreaching can be difficult so the

law does not require such a showing on the part of the client. '^"^ Although all of
this sounds in conflict of interest analysis, the focus is again on the calculation

of fee charged and the means by which the lawyer tries to collect it. A clearer
example of this overreaching is found in the Hefrori^^^ case mentioned earlier.

For this and other misconduct, the lawyer in Breunig received a sixty-day

suspension from the practice.
^^^

B. Misconduct by Prosecutors

Disciplinary action against a prosecuting attorney or a deputy prosecutor is

generally quite rare. This is true even though prosecutors are held to a higher

ethical standard than other members of the bar.'^^ Most commonly, these kinds
ofcases involve some kind ofalcohol related incident. ^^^ Occasionally, however,
the misconduct is more significant. In one fairly recent case, an elected
prosecutor was disbarred for deliberate and ongoing misconduct. ^^^ Conduct that
aberrant, of course, is the exception rather than the rule.

During the relevant period to this work, the respondent lawyer in In re

Ryan,^^^ served as a part-time deputy prosecuting attorney in the Goshen City

173. Restatement (TfflRD), TheLawGoverningLawyers (2000), §126, cmt. (a) notes that
in civil actions and disciplinary actions involving this rule, the lawyer has the burden ofpersuading

the tribunal that the transaction was fair and reasonable and that the client was adequately informed.

174. Id. cmt. (b).

175. //g>o«, 771 N.E.2d at 1162-63.

176. /« re 5rewmg, 810 N.E.2d at 717.

177. See In re Oliver, 493 N.E.2d 1237 (Ind. 1986). The respondent lawyer was involved in

a one-car crash and was charged with driving while intoxicated. At the time of his arrest, he was

a special prosecutor in one case. In imposing a public reprimand on the lawyer, the supreme court

noted, "[a]s officers charged with administration ofthe law, their own behavior has the capacity to

bolster or damage public esteem for the system different than that of attorneys otherwise in

practice." /J at 1242.

178. See, e.g.. In re Schenk, 612 N.E.2d 1059 (Ind. 1993); In re Seat, 588 N.E.2d 1262 (Ind.

1992).

179. In re Riddle, 700 N.E.2d 788 (Ind. 1998) (Extensive misconduct, including the sham

hiring of a deputy prosecutor employed only to run his private practice law office, warranted

disbarment.).

1 80. 824 N.E.2d 687 (Ind. 2005).



2005] PROFESSIONAL RESPONSIBILITY 1301

Court.
^^'

Based on his work as a prosecutor, he observed that many Latino
motorists were being charged in his court with driving without licenses *^^ or

driving without a license in possession. ^^^ The court generally permitted the state
to reduce the original charge to a lesser charge or an ordinance violation if the

defendant provided proof of a valid driver's license. ^^"^ The lawyer and his wife
started a business called Legal Licensing Limited, hereinafter referred to as LLL.
The respondent lawyer's wife was the only employee ofLLL and for $275, LLL
would obtain international driver's licenses for their customers. The city court's
Spanish language interpreter received $20 for each customer she referred to

LLL.
'^^ The interpreter would deliver the customer's initial $ 1 00 payment to the

lawyer, often near the court. Once the driver's license was obtained, it was
exchanged with the defendant for the balance of the fee. The defendant would
then present the license to the respondent lawyer in open court and, in return, the

lawyer would amend the initial charge to a lesser charge. He collected over
$20,000 in fees from about 150 customers during the 14 months or so that the

business operated. In early 2002 he met with the elected prosecutor about his
involvement in LLL and resigned his position immediately thereafter. *^^

The supreme court found that the respondent lawyer violated one of the
conflict of interest rules. Rule 1 .7(b). ^^^ It held that the lawyer's own interest in
operating and profiting from LLL was in direct conflict with the lawyer's duties
as a deputy prosecutor.

^^^ When applied to the terms of the rule, it is evident
that the State of Indiana's interests were coming in second place to the lawyer's

interest in keeping his sideline going. In its opinion, the court dwelt on the

lawyer's failure to not just do his duty of loyalty to the State of Indiana, but his

failure to even recognize what that duty was. The court used the opinion to
remind lawyers in general and prosecutors in particular that deputy prosecutors

serve a public trust to enforce the law and the state is entitled to that lawyer's

undivided loyalty. Conduct like that at issue in this case breeds mistrust and lack

181. Goshen is in Elkhart County in northern Indiana.

182. A class "C" misdemeanor.
183. A class "C" infraction.
184. 824 N.E.2d at 688.

185. /J at 689.

186. Id.

187. The rule in effect at the time provided:

A lawyer shall not represent a client ifthe representation ofthat 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.

1 88. Ryan, 824 N.E.2d at 689.



1302 INDIANA LAW REVIEW [Vol. 38: 1255

of confidence in the judicial system.

He used his position as a deputy prosecutor to obtain a significant
financial windfall for himself By serving both as prosecutor and as
intermediary for those seeking a favorable plea agreement, respondent

gave the impression that justice could be bought.
^^^

The court acknowledged that the lawyer had admitted all the requisite facts,
but expressed some level of dismay at his perceived "failure to grasp the
magnitude ofhis misconduct."^^^ He attached a paper to his affidavit consenting
to discipline that spoke to the validity of the international driver's licenses and

their propriety in the context of plea bargaining cases. The court thereafter
pointed out to him that a lawyer cannot ethically prosecute a criminal defendant
while simultaneously privately providing that defendant with a business service

to help him obtain a more favorable result in his criminal case.^^* For that
misconduct, the lawyer received a nine month suspension from the practice of
law with the opportunity to petition for reinstatement to the bar thereafter.

^^^

Use of the governmental office ofprosecutor to facilitate a lawyer's private
endeavor is, indeed, rare conduct. The last such case was In re Riddle^^^ in 1998.

The message that should be obvious fi"om this case is that prosecutors (and,
in particular, part-time prosecutors and deputies) can have business endeavors

outside their role as State officials, but those endeavors must not permit them to
profit at the expense of the State's interests. The closer these outside business
endeavors are to the heart ofthe prosecutor's work in the criminaljustice system,
the stronger the inference that the conduct might be problematic as being in

conflict with the lawyer's oath to the State of Indiana. Again, this kind of

conduct is rare, but not unheard of.

C. Judicial Misconduct

In a judicial discipline case, the supreme court removed a sitting Lake
Superior Court judge from the bench for misconduct that included, inter alia,

harming litigants in her court by failing to issue timely orders in their cases. In

In re Kouros,^'^^ the judge had been appointed to the bench in 1997. Between

1 999 and 2001 , she had pronounced sentence orally in at least thirty-five felony

cases in which she failed to issue written sentencing orders promptly

thereafter. ^^^ In five cases she delayed the orders by five to six months. In one

189. Id.

190. Id.

191. Id at 690.

192. IND. Admis. Disc. R. 23, § 3(a) provides, in essence, that any lawyer suspended for six

months or more must petition the supreme court and demonstrate their fitness to return to the

practice of law.

193. 700 N.E.2d 788 (Ind. 1998).

194. 816N.E.2d21(Ind.2004).

195. Mat 23.

I



2005] PROFESSIONAL RESPONSIBILITY 1303

case, she delayed by ten months. In three cases, she delayed the orders by
fourteen or fifteen months and in one case, she delayed the order by twenty-seven

months !^^^ In 2001, the supreme court directed the other Lake Countyjudges to

review the delays and ascertain the scope ofthe problem. Ifthey determined that

a real problem existed, they were to issue a plan to correct it.^^^ The reviewing
judges reported that there were 330 files in the respondent Judge's office

awaiting orders and subsequent return to the clerk's office. Those judges

concluded that the respondent judge had initiated a new method for transcribing
and processing docket entries contemporaneously with the making ofthe entries

in open court and the backlog should not occur in future cases. Such

transcription equipment was not installed until almost two years later. ^^^ Despite
repeated communications from the counsel for the Commission on Judicial
Qualifications, the respondentjudge did not correct the problems and in October

2002, the supreme court issued an order instructing the Director of Indiana's

Division of State Court Administration ("DCSA") to monitor the respondent
judge's case processing. ^^^ Needless to say, the situation continued unabated

and, in April 2003, DCSA staff visited the respondent's office and discovered
171 one cases checked out from the clerk's office and languishing in the

respondent'sjudge's office. Thejudge was temporarily removed from office and
a judge pro tempore was appointed to serve in her stead.^^^ A formal judicial
disciplinary proceeding was begun shortly thereafter charging the respondent
judge with more than seventy counts of misconduct under the Code of Judicial
Conduct.^^^ The matter was heard by three Masters in April 2004 and the
supreme court's opinion removing thejudge from office was entered October 12,
2004.

In its opinion, the supreme court acknowledged that the respondentjudge did

not involve any issues of moral turpitude or misuse of her judicial power for
personal gain. The court also examined her extensive physical problems and
noted she was also remorsefiil and apologized.^^^ The court gave long
consideration to the factors that weighed against the judge, however. She was
no novice to the bench and had been given opportunity after opportunity to
correct the problem and improve her methods ofjudicial administration. These

included repeated warnings about the problems she was causing.^^^ In the end,
the supreme court was cautious to express that judicial disciplinary proceedings
are not designed merely to punish wrongdoing, but they ensure judges are fit for

judicial duty, maintain public confidence in the administration of justice and

preserve the integrity and independence ofthe judiciary. In ordering her removal

196. Id.

197. Id.

198. Id

199. /J. at 24.

200. Id at 26.

201. Mat 282-9.
202. Id at 30.

203. Id



1304 INDIANA LAW REVIEW [Vol. 38:1255

from office, the court postponed the effective date of the removal to permit her
to receive judicial pension benefits when she reaches the appropriate age.^^"^

Features of particular note in this case unrelated to the attention-getting

nature ofthe misconduct overall include the court's Job-like efforts to patiently

permit this particular court the opportunity to get itself back on track. The use
of other local Lake County judges to monitor and assist the respondent judge to
develop methods for ensuring the proper administration ofcases moving through
the court including repeated admonitions from the Commission on Judicial
Qualifications.^^^ Even after a temporary suspension, the judge was permitted
back on the bench for a final try and getting the management issue right. Despite
what appeared to be profound problems with the court's file administration
system, the supreme court went to remarkable lengths to reduce the disruption
within the county's judicial system.

204. Id. at 31.

205. Id. at 23. One letter advised her that although the Commission's inquiry had been closed

without prejudice, it would be reopened if her organizational problems recurred and she should,

"maintain scrupulous attention to the processing of cases and . . . not allow your office to appear

to be in disarray." Such disarray, she was warned, left the impression that the court's docket is in

a similar state.