In re Blickman
| Decision Date | 09 December 2020 |
| Docket Number | Supreme Court Case No. 18S-DI-553 |
| Citation | 164 N.E.3d 708 |
| Parties | In the MATTER OF Michael A. BLICKMAN, Respondent. |
| Court | Indiana Supreme Court |
Attorney Discipline Action
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.
This matter is before the Court on the report of the hearing officer we appointed to hear evidence on the Indiana Supreme Court Disciplinary Commission's disciplinary complaint filed against Respondent. Respondent's 1978 admission to this State's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.
At relevant times, Respondent was outside counsel for Park Tudor School. Early in the afternoon of December 14, 2015, the father ("Father") of a fifteen-year-old female student ("Student"), accompanied by counsel Rob Dassow, met with Respondent and Park Tudor Headmaster Matthew Miller and informed them that Father believed Kyle Cox, a teacher and coach at Park Tudor, had engaged in a series of inappropriate electronic sexual communications with Student. Father brought with him to the meeting Student's laptop computer, which contained sexually graphic content exchanged between Student and an individual believed to be Cox, as well as printouts of text messages and a graphic screenshot image of Student. At Respondent's request, Father gave the laptop and printouts to Respondent at the conclusion of the meeting.
Respondent continued to meet with Miller for several hours after Father and Dassow left, during which time they discussed how to handle Cox's termination and manage public relations once they were able to confirm that Cox had been the individual communicating with Student. During this meeting Miller also asked Respondent if the matter had to be reported to the Department of Child Services (DCS). Respondent told Miller he was unsure of the answer and would have to research this. Respondent left the school around 7:30 p.m., keeping in his possession the materials Father had provided.
At approximately 7:00 a.m. the following morning, Respondent advised Miller by phone a report to DCS was required to be made and should be done right away.1 Respondent offered to make the call himself, but Miller told Respondent that the school would make the report.
That same morning, Miller and associate headmaster Shants Hart met with Cox, who admitted he was the individual who had been communicating with Student. Miller immediately fired Cox. Later that day though, Park Tudor and Cox executed a written agreement drafted by Respondent whereby Park Tudor agreed to issue a public statement indicating Cox had resigned in exchange for Cox's agreement not to discuss the matter with anyone.
Hart, with Miller present, called DCS at approximately 2:00 p.m. on December 15 to report the matter. However, Miller had not fully or accurately informed Hart of the circumstances surrounding Cox's communications with Student. As a result, when DCS asked if any explicit images had been exchanged, Hart told DCS she did not know. Miller did not correct this misleading statement and others despite having heard both the questions and answers on speakerphone. DCS also was not advised during this conversation of the materials Father had provided to Miller and Respondent. Respondent did not participate in this call and testified he did not learn until much later that the school's report to DCS was inaccurate and incomplete.
Later on December 15, Respondent discussed with Dassow a potential settlement between Park Tudor and Student's family and began drafting an agreement. Respondent sent the draft agreement to Miller on December 16 for his review and to Dassow on December 17 for his review. Among other things, the proposed agreement included a confidentiality clause that prohibited Student and her family from disclosing matters involving her relationship with Cox "to any other person or entity" besides Dassow and Student's therapist.2 This proposed agreement was never executed.
On December 16, Respondent instructed a computer specialist at his law firm to make copies of the sexually graphic images and texts and to place those copies on a thumb drive rather than on the firm's network. Respondent then placed the thumb drive in a sealed envelope in a cabinet in his office and returned the laptop to Park Tudor, which in turn returned it to Father.
During the next two weeks, DCS and law enforcement personnel reached out to Father and Student, learned of the materials Father had provided to Park Tudor, and scheduled an interview of Student for January 4. When Respondent learned of the scheduled interview with Student, Respondent emailed Dassow, writing that "[d]iscussions with [DCS] and/or IMPD would not be permitted under the agreement" and that "Park Tudor will reevaluate the appropriateness" of entering the agreement "if discussions with [DCS] or IMPD do occur." Father then cancelled the DCS interview.
On January 5, police went to Park Tudor and attempted to interview Hart, who referred them to Respondent. At the same time police also attempted to interview Miller, but Miller was "literally hiding" somewhere at the school and could not be located. (Tr. Vol. 1 at 175). Respondent refused to provide police with further information.
On January 6, Respondent and Dassow called Marion County Prosecutor Terry Curry hoping to persuade Curry that an investigation would not be in Student's best interests. Respondent did not disclose that he had copies of the evidence from Student's computer, nor did he disclose that he had refused to discuss the matter with law enforcement the previous day. After this call, Curry instructed law enforcement to move forward with search warrants.
On January 7, police executed search warrants at Cox's home, Park Tudor, and Student's home. At the school, Miller was angry and belligerent toward officers, and Respondent was summoned to the scene. Miller denied that Park Tudor was in possession of the materials Father had provided and claimed not to know where the materials were. During about an hour of questioning, Respondent repeatedly concealed from authorities that he possessed the material sought. At some point after Respondent conferred privately with Miller though, Respondent informed police he had copies of the materials at his office, but he asserted those materials were privileged. After again conferring privately with Miller, Respondent told police that Miller was willing to waive privilege and that Respondent would turn over the materials. Respondent attempted to avoid doing so until the following day, but the police refused to delay and escorted Respondent to his office to retrieve the copies.
The next day, after the warrants had been executed and Respondent had turned over the materials to police, Respondent sent another email to Dassow indicating that "no obligation of confidentiality shall restrict or limit the ability of the parties ... to ... truthfully respond to any inquiry by any authorized law enforcement officer." (Ex. Vol. at 486).
In the following weeks, Miller committed suicide, Cox was indicted in federal court, and Park Tudor's board of directors fired Respondent. Later in 2016, Cox was convicted and sentenced to 14 years in prison, and Park Tudor entered into a deferred prosecution agreement with the United States Attorney's Office under which a prosecution of the school for misprision of a felony would be conditionally deferred. In 2017, Student and her parents entered into a settlement agreement with Park Tudor and Respondent's law firm.
In November 2018, the Commission filed a disciplinary complaint against Respondent, which it later amended. The complaint as amended alleged Respondent violated the following Rules of Professional Conduct:
A four-day evidentiary hearing was held in September 2019, followed by the parties’ submission of post-hearing briefing. The hearing officer issued a detailed 24-page report on April 16, 2020. As discussed further below, the hearing officer found that Respondent violated Professional Conduct Rule 1.1 and that the Commission had not sustained its burden of proof on the remaining charges, and the hearing officer recommended Respondent be reprimanded.
The Commission has petitioned for review of the hearing officer's conclusions in favor of Respondent, and in his response brief Respondent invites review of the hearing officer's conclusion that he violated Rule 1.1.3
The Commission carries the burden of proof to demonstrate attorney misconduct by clear and...
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Imposing Lawyer Sanctions in a Post-January 6 World
...379 (Idaho 2003) (noting the hearing committee’s reliance on the Standards and adopting recommended sanction); Indiana, In re Blickman, 164 N.E.3d 708, 719 (Ind. 2021) (noting that the court frequently turns to the Standards for guidance); Iowa, Iowa Sup. Ct. Att’y Disciplinary Bd. v. Den B......