FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Karl L. Mulvaney Donald R. Lundberg, Executive Secretary
Indianapolis, Indiana 115 West Washington Street Indianapolis, Indiana 46204
IN THE MATTER OF ) ) CASE NO. 64S00-9907-DI-401 KENNETH J. ALLEN )
The respondent stated to another panel of potential jurors that:
I dont, and none of the lawyers in our firm represent criminal defendants. We dont do that kind of work. Its not something that Im suited for I just mean that its something that we decided not to do, and we dont do it and you know, the truth is, we dont do anything besides represent people who have been hurt or the families of people who have been killed, and thats all we do. And so whether its a murder case, or a rapist or robber we dont do that.
Although the respondents law firm did not engage in the practice of criminal law, during relevant times the respondent was employed as a part-time indigent counsel in the Lake Superior Court, Division III where he routinely was appointed to represent criminal defendants.
The Commission charged the respondent with knowingly making false statements of material fact in violation of Ind.Professional Conduct Rule 3.3(a) See footnote and with engaging in conduct involving deceit and misrepresentation in violation of Prof.Cond.R. 8.4(c).See footnote The hearing officer found that because the respondent at least part of the time used terms such as we do not or our office does not while denying that he practiced criminal law, there was no material misrepresentation. A "material" representation may be defined as one "relating to matter which is so substantial and important as to influence the party to whom it is made." Matter of Wagner, 744 N.E.2d 418, 421 (Ind. 2001) (in the context of Prof.Cond.R. 4.1(a) relating to false statements of material fact to third parties); Black's Law Dictionary, p. 880 (5th Ed.1979). The respondent contends that his statements were not material, but instead a voir dire tactic intended to elicit candor from prospective jurors. His statements to the jurors, as quoted above, contain numerous references indicating that the respondent did not practice criminal law. In fact, the use of the pronoun I so permeates the respondents statements that the clear message is that he did not practice criminal law, and not, as he contends, that only his firm did not. Such statements are substantial and important in selecting a jury to hear a civil case hinging on allegations of child molesting. The respondent might, for example, seek to lead potential jurors to believe that he would not represent a person charged with such a crime, given that he was bringing an action which essentially (in a civil context) alleged such violations. Accordingly, we find that his statements were material, and further that they misrepresented the range of the respondents law practice by indicating that he did not practice criminal law when in fact he did. We find that he violated Prof.Cond.R. 3.3(a) and 8.4(c). See footnote
The parties further stipulated that during a mid-trial deposition of one of the plaintiffs expert witnesses conducted at the law offices of one of the defense counsel attorneys, the respondent paced around the room and looked through and read documents belonging to defense counsel, despite defense counsels protests and identification of the documents as sensitive and confidential. Despite the warnings, the respondent continued reading the documents. After the deposition, defense counsel moved for, and was granted, a mistrial. In addition to granting the mistrial, the court barred the respondent from representing the class in further proceedings.
We now find that by reading opposing counsels confidential documents despite being asked to stop, the respondent engaged in conduct prejudicial to the administration of justice in violation of Prof.Cond.R. 8.4(d).See footnote
Under Count II, the parties stipulate that the respondent released a press advisory following the crash of American Eagle Airlines flight #4184 near Roselawn, Indiana in 1994. In his press advisory, the respondent claimed that family members of two of the victims had contacted him and that he did not expect to file suit until after the NTSB completed its preliminary investigation. At the time the press advisory was released, the respondent had not been retained to pursue any claim relating to the crash. In the same press advisory, the respondent also made reference to previous verdicts he had obtained in transportation related accidents, which used statistical data and past success as an implied indication of future success.
The hearing officer found that the respondent with violating Prof.Cond.R. 7.1(b)See footnote . We find that the respondent violated Prof.Cond.R. 7.1(b) by issuing a false and misleading press advisory.
Having found misconduct, we must now assess an appropriate sanction. In so doing, we note that a current of misrepresentation runs through the respondents actions in both counts. He demonstrates a willingness to deceive potential jurors, opposing counsel, and the general public. At the same time, we are cognizant that the hearing officer found several matters in mitigation: the respondents cooperation with the Commission in its investigation, his heretofore unblemished disciplinary record in Indiana; and his willingness to take responsibility for at least some of his misconduct (i.e., the advertising and deposition violations). Notwithstanding this mitigation, we conclude that a period of suspension is warranted in light of the pattern of deception attendant to the respondents acts.
It is, therefore, ordered that the respondent, Kenneth J. Allen, is hereby suspended from the practice of law for a period of ninety (90) days beginning on October 26, 2002, at the conclusion of which the respondent shall be automatically reinstated.
The Clerk of this Court is directed to provide notice of this order in accordance with Admis.Disc.R. 23(3)(d) and the hearing officer in this matter, and to provide the clerk of the United States Court of Appeals for the Seventh Circuit, the clerk of each of the United States District Courts in this State, and the Clerk of each of the United States Bankruptcy Courts in this state with the last known address of the respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.
Shepard, C.J., Sullivan and Boehm, JJ. concur.
Dickson, J., dissents, believing the sanction imposed by the Court is too lenient.
Rucker, J., dissents, believing the sanction of a public reprimand recommended by the hearing officer would be sufficient.