In re Neary, 46S00-1512-DI-705.

Citation84 N.E.3d 1194
Decision Date06 November 2017
Docket NumberNo. 46S00-1512-DI-705.,46S00-1512-DI-705.
Parties In the MATTER OF: Robert NEARY, Respondent.
CourtSupreme Court of Indiana

Attorneys for Respondent : Donald R. Lundberg, Frank Sullivan, Jr., Indianapolis, Indiana

Attorneys for the Indiana Supreme Court Disciplinary Commission : G. Michael Witte, Executive Director, Angie Ordway, Staff Attorney, Indianapolis, Indiana

Attorney Discipline Action

Per Curiam.

We find that Respondent, Robert Neary, committed attorney misconduct by, among other things, eavesdropping on confidential attorney-client communications. For this misconduct, we conclude that Respondent should be suspended for at least four years without automatic reinstatement.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action," and on the post-hearing briefing by the parties. Respondent's 1999 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.

Procedural Background and Facts

The Commission filed a two-count "Verified Complaint for Disciplinary Action" on December 17, 2015, and later amended that complaint. As set out more fully below, the amended complaint charged Respondent with professional misconduct in connection with his actions in two criminal cases while serving as the chief deputy prosecutor in LaPorte County. Following a hearing, the hearing officer filed her report on April 28, 2017, finding Respondent committed violations as charged and recommending a sanction ranging from a four-year suspension to disbarment.

Count 1 . On Friday, March 14, 2014, Brian Taylor was being held in custody at the Michigan City Police Department in connection with a homicide investigation. Attorney David Payne arrived at the station mid-afternoon to meet with Taylor, and Respondent was summoned to the station by the police chief to assist with any issues that might arise. Respondent and detectives escorted Payne to the interview room to meet with Taylor, a detective instructed Payne to flip a toggle switch outside the room "unless you want us listening to your conversation," and Payne did so. However, the switch merely controlled the recording system and did not disable the audio and video feeds, which were controlled in a separate area in the police station referred to as the "war room."

After Payne began his meeting with Taylor, Respondent and several detectives gathered in the war room. They did not disable the audio or video feeds, but rather watched and listened to the confidential attorney-client discussion. Ten to twenty minutes into the interview, Taylor and Payne discussed a gun allegedly used in the incident under investigation, and Taylor told Payne where the gun was located. A few minutes after that, the audio in the war room was disabled, the room was cleared, and Respondent instructed the detectives not to recover the weapon. Notwithstanding Respondent's instruction, two detectives proceeded to the site identified by Taylor during his conversation with Payne and recovered a gun.

Respondent did not initially notify Payne of what had transpired. Three days after Payne's meeting with Taylor, when the police chief learned of the overheard conversation and the subsequent recovery of a gun, the police chief emphasized to Respondent the importance of sharing that information with Taylor's counsel. Respondent then notified counsel of what had happened and self-reported his conduct to the Commission shortly thereafter.1

Count 2 . On December 13, 2012, John Larkin was being held at the Long Beach Police Department (LBPD) in connection with the shooting death of his wife. Larkin had agreed to give a statement to investigators in exchange for being charged with voluntary manslaughter in lieu of murder. Present for this interview were Larkin, Larkin's counsel, Respondent, LaPorte County Prosecutor Robert Szilagyi, and the LBPD officer who conducted the interview. The interview room was monitored by an audio and video feed sent to a control room elsewhere in the police station.

About an hour into the interview, the participants took a short break lasting approximately eleven minutes. Larkin and his counsel remained in the interview room after the others had left. Based on past practices, Szilagyi and Larkin's counsel both believed the LBPD officer in the control room would turn off the recording during the break. However, the recording system was not turned off and continued to record while Larkin spoke with his counsel during the break about several confidential matters, including defense strategy (hereinafter the "break discussion").

Respondent first viewed the DVD of the interview, including the break discussion, about one month later. Respondent watched the entire break discussion even though the privileged status of that discussion either was, or should have been, immediately apparent to Respondent. Respondent provided a copy of the DVD, including the break discussion, to Larkin's counsel but did not mention to counsel that the break discussion had been recorded.

Thereafter, Larkin's counsel filed a motion to dismiss the voluntary manslaughter charge based on the recording of the break discussion. Respondent filed an unsealed response in which he recited the contents of the break discussion, and he attached as exhibits the DVD and a written transcript, both of which included the break discussion. The trial court ordered the transcript and all relevant information be placed under seal and instructed Respondent to resubmit his filing on green paper excluded from public access.2

Discussion

The Commission alleged, and the hearing officer concluded following an evidentiary hearing, that Respondent violated the following Indiana Rules of Professional Conduct:

4.4(a): Using methods of obtaining evidence that violate the legal rights of a third person (Count 1).
8.4(d): Engaging in conduct prejudicial to the administration of justice (Counts 1 and 2).

Respondent has petitioned this Court to review the hearing officer's findings and conclusions.3 The Commission carries the burden of proof to demonstrate attorney misconduct by clear and convincing evidence. See Ind. Admission and Discipline Rule 23(14)(i) (2016). We review de novo all matters presented to the Court, including review not only of the hearing officer's report but also of the entire record. See Matter of Wall, 73 N.E.3d 170, 172 (Ind. 2017). While this Court reserves the right to make the ultimate determination, the hearing officer's findings receive emphasis due to the unique opportunity for direct observation of witnesses. Id.

Respondent correctly argues that the appellate holdings in Taylor, Larkin I, and Larkin II are not dispositive of this disciplinary action. See Matter of Keiffner, 79 N.E.3d 903, 906 (Ind. 2017) (quoting Matter of Smith, 60 N.E.3d 1034, 1036 (Ind. 2016) ). The relevant inquiries in a criminal appeal and disciplinary proceeding are not wholly coextensive, a prosecutor individually does not have the opportunity in a criminal appeal to defend his or her own professional conduct, and extrinsic evidence may be brought to bear in a disciplinary proceeding that paints a "more complete picture" of the prosecutor's conduct than what was reflected in the record available to the appellate court. Id. Respondent points to such extrinsic evidence here—chiefly, his own testimony and that of several of the detectives who participated in the war room eavesdropping—and he argues that, like the respondent attorneys in Smith and Keiffner, he too should be absolved of professional misconduct charges.

However, our dispositions in Smith and Keiffner were predicated in large part on credibility findings favorable to the respondent made by the hearing officer in each case and the emphasis we give such findings. In contrast, the hearing officer who heard the testimony here made comprehensive and well-reasoned credibility findings against Respondent, whose version of events has evolved considerably since his initial self-report to the Commission, and against the detectives who chose to testify here but who had refused to testify about the eavesdropping during the suppression proceedings at issue in Taylor. We find in our de novo review ample support for the hearing officer's findings in this regard.

Respondent also argues...

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5 cases
  • Larkin v. State
    • United States
    • Supreme Court of Indiana
    • 14 Septiembre 2021
    ...v. Larkin , 77 N.E.3d 237 (Ind. Ct. App. 2017), vacated ; Larkin v. State , 43 N.E.3d 1281 (Ind. Ct. App. 2015) ; see also In re Neary , 84 N.E.3d 1194 (Ind. 2017) (suspending the former lead prosecutor from the practice of law for at least four years due, in part, to his misconduct while p......
  • Larkin v. State
    • United States
    • Supreme Court of Indiana
    • 14 Septiembre 2021
    ...State v. Larkin, 77 N.E.3d 237 (Ind.Ct.App. 2017), vacated; Larkin v. State, 43 N.E.3d 1281 (Ind.Ct.App. 2015); see also In re Neary, 84 N.E.3d 1194 (Ind. 2017) (suspending the former lead prosecutor from the practice of law for at least four years due, in part, to his misconduct while pros......
  • State v. Robinson
    • United States
    • Superior Court of Delaware
    • 1 Mayo 2018
    ...such correspondence could cause a chilling effect on the communications between lawyer and client); see also In the Matter of Robert Neary , 84 N.E.3d 1194 (Ind. 2017) (suspending a prosecutor for four years as sanction for listening to confidential attorney-client communications on two occ......
  • State v. Robinson, I.D. No. 1411017691
    • United States
    • Superior Court of Delaware
    • 1 Mayo 2018
    ...correspondence could cause a chilling effect on the communications between lawyer and client); see also In the Matter of Robert Neary, 84 N.E.3d 1194 (Ind. 2017) (suspending a prosecutor for four years as sanction for listening to confidential attorney-client communications on two occasions......
  • Request a trial to view additional results

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