Indiana Sanctions School’s Outside Counsel

The Indiana Supreme Court has publicly reprimanded an attorney

For several months in the fall of 2015, a prominent high school instructor preyed upon a fifteen-year-old student. The discovery of this criminal conduct, and subsequent attempts to cover it up, triggered a sequence of events that culminated in the instructor’s arrest and conviction, the school headmaster’s suicide, and a deferred prosecution agreement reached between the school and federal authorities.

Today we are called upon to consider the role the school’s outside counsel, Respondent Michael Blickman, played in these events. More specifically, we must determine whether the Indiana Supreme Court Disciplinary Commission has clearly and convincingly proven its allegations of professional misconduct against Respondent.

We find that Respondent’s efforts to silence the victim and her family provided the school with incompetent representation and were prejudicial to the administration of justice. We find further that the Commission has failed to sustain its burden of proof on the remaining charges. For Respondent’s professional misconduct, we conclude he should be publicly reprimanded.

A father (with counsel) met with the attorney and the school headmaster to report inappropriate communications between his daughter and a teacher. He provided the attorney with her laptop computer and text message printouts “which contained sexually graphic content exchanged between Student and an individual believed to be [the suspected teacher]” and “a graphic screenshot image of Student.”

The court characterizes the misconduct as incompetent representation of the school but rejected failure to report allegations

The complexity of the reporting statutes, the Commission’s clear-and-convincing burden of proof, and the deference we accord to the findings of the hearing officer, collectively persuade us (albeit narrowly) to find in Respondent’s favor on this Rule 1.1 charge.

We likewise find in Respondent’s favor on the Rule 1.2(d) charge. While it is abundantly clear from the record before us that Miller did not timely report the matter to DCS, and indeed was doing everything in his power to avoid having to report, there is scant evidence that Respondent counseled Miller’s criminal conduct or knowingly assisted it. Regardless of whether Respondent should have known of the reporting requirement when Miller first asked him on December 14, the evidence is undisputed that Respondent did not know and accurately advised Miller that he did not know at that time.

The court declined to opine on the intersection between the mandatory reporting obligation and the duty of confidentiality

We need not resolve today whether attorneys are subject to the Indiana Code’s mandatory reporting requirements in connection with information obtained during the course of a representation. Assuming solely for the sake of argument they are, and assuming further that Respondent failed to comply with those requirements,  under the circumstances of this case any such criminality by Respondent lacks the requisite nexus to his professional fitness to support a Rule 8.4(b) violation. Simply put, possibly guessing incorrectly about an unsettled legal matter, upon which reasonable minds can differ and indeed have differed, does not reflect adversely on Respondent’s honesty, trustworthiness, or fitness as a lawyer.

The father had turned over materials to the attorney, leading to a charge that the attorney possessed pornography

We begin with several straightforward observations. The materials at  issue in this case included among other things a digitized image of Student’s vagina. This image was a screenshot taken from a video on Student’s laptop. (The computer specialist at Respondent’s firm tried, but was unable, to copy the video). Father, Miller, and Respondent all knew that Student was fifteen years old. No argument has been advanced that the image and video do not depict sexual conduct, or that in context they have “serious literary, artistic, political, or scientific value.” See I.C. § 35-42-4-4(c) (2015). Without question, this was child pornography.

But

Having carefully reviewed the record, the hearing officer’s report, and the parties’ briefs, we ultimately conclude, as we did with Respondent’s duty-to-report, that under the circumstances of this case any criminality involved with Respondent’s possession of these materials is not of a nature that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer. This was not a situation where the attorney sought to satisfy his prurient interests by viewing child pornography, see Matter of Raquet, 870 N.E.2d 1048 (Ind. 2007), or by sexually exploiting a client’s underage family member. See Matter of Wood, 489 N.E.2d 1189 (Ind. 1986). Nor are we persuaded by the Commission’s argument that the circumstances surrounding Respondent’s possession of these materials are analogous to Matter of Schalk, 985 N.E.2d 1092 (Ind. 2013), in which an attorney a client in a criminal matter enlisted two co-conspirators to purchase marijuana from a witness for the prosecution.

Our narrow conclusion that the requisite nexus between Respondent’s alleged criminality and his fitness has not been proven clearly and convincingly should not be read as an endorsement of Respondent’s conduct. The best course of action for all who took possession of these materials, including Respondent, would have been to promptly involve law enforcement. There was no legitimate reason not to do so here; this was a situation where one would have expected the school and the school’s attorney to have overlapping interests with law enforcement in protecting children from a known predator.

Justice Slaughter dissented and would find no misconduct in the attorney’s effort to resolve the matter

Transactional lawyers who negotiate contract provisions held to be unenforceable on public-policy grounds may now face professional sanction, because it is not uncommon for courts to invalidate provisions within commercial contracts…

Yet it takes two to tango. Blickman was not negotiating these terms in isolation. His counterpart, the family’s lawyer, also sought confidentiality for his own client and was negotiating settlement terms with Blickman to effectuate that goal. For reasons known only to the commission, the family’s lawyer was not the subject of a disciplinary complaint. Unlike Blickman, he was spared the expense and embarrassment of defending his conduct and professional reputation. If the proposed confidentiality provision were so clearly at odds with public policy and justice, why weren’t both lawyers in the commission’s crosshairs? Today’s decision provides no answer and no clear guidance for lawyers who wish to stay on the right side of the commission. At the same time, it puts a broad swath of Indiana’s practicing lawyers, otherwise in good standing and observing professional norms, at risk of professional sanction.

(Mike Frisch)