State ex rel. Ind. Supreme Court Disciplinary Comm'n v. Farmer

• Decision Date: 30 November 2012
• Docket Number: No. 94S00–1103–MS–165.,94S00–1103–MS–165.
• Citation: State ex rel. Ind. Supreme Court Disciplinary Comm'n v. Farmer, 978 N.E.2d 409 (Ind. 2012)
• Parties: STATE of Indiana ex rel. INDIANA SUPREME COURT DISCIPLINARY COMMISSION, Relator, v. Derek A. FARMER, Respondent.
• Court: Indiana Supreme Court

978 N.E.2d 409

STATE of Indiana ex rel. INDIANA SUPREME COURT DISCIPLINARY COMMISSION, Relator,

v.Derek A. FARMER, Respondent.

No. 94S00–1103–MS–165.

Supreme Court of Indiana.

Nov. 30, 2012.

G. Michael Witte, Executive Director, Angie L. Ordway, Staff Attorney, Indiana Supreme Court Disciplinary Commission, Indianapolis, IN, Attorneys for Relator.

Mary Nold Larimore, Erin A. Webley, Indianapolis, IN, Attorneys for Respondent.

On Petition to Enjoin Unauthorized Practice of Law

PER CURIAM.

The Indiana Supreme Court Disciplinary Commission (“Commission”) brings this original action in the name of the State of Indiana pursuant to Indiana Admission and Discipline Rule 24. The Commission alleges that Respondent Derek A. Farmer (“Farmer”) engaged in the unauthorized practice of law in Indiana, and it seeks an order from this Court enjoining him from practicing law here. This Court has original jurisdiction over matters involving the unauthorized practice of law. SeeInd. Const. art. 7, § 4.

Procedural Background

On March 22, 2011, the Commission filed a verified petition alleging that Farmer engaged in the unauthorized practice of law. The petition asks that Farmer “be permanently enjoined from engaging in the practice of law and soliciting clients in the State of Indiana[.]” (Verified Petition (“Pet.”) at 6.) Farmer filed a verified return to the petition and later amended his return. Farmer denied many of the allegations in the verified petition and opposed issuance of the injunction. The Court appointed Leslie C. Shively to serve as Commissioner to hear the evidence and report his findings of fact to the Court. After conducting an evidentiary hearing, the Commissioner filed his report with findings of fact. Later, this Court received legal briefs from the parties and heard oral argument.

Facts

John Ivy (“Ivy”) was convicted and sentenced to sixty-five years for murder in Delaware County, Indiana. See Ivy v. State, 715 N.E.2d 408 (Ind.1999). Thereafter, and at all relevant times, Ivy has been imprisoned in Indiana. In April 2000, Ivy, pro se, filed a petition for post-conviction relief. On May 30, 2000, a Deputy State Public Defender entered her appearance along with a “verified notice of present inability to investigate and motion for continuance.” (Appendix (“App.”) at 91–93.) The trial court granted the requested continuance. The chronological case summary shows no further activities in the post-conviction case until the Deputy State Public Defender was granted leave to withdraw her appearance on April 7, 2005. (App. at 93.)

Meanwhile, Ivy and his grandparents, Eddie and Laverne Ivy, Ohio residents, hired an Ohio attorney, Farmer, to provide legal work on Ivy's case as described below. Farmer was admitted to practice law in Ohio in 1999 and, at all relevant times, has maintained an office in Ohio. Farmer had represented Eddie formerly on an unrelated matter. Farmer has never been licensed to practice law in Indiana, although he was admitted to practice in Indiana temporarily in connection with another client's criminal case in Marion County in 2002–03.

Ivy signed a legal services engagement letter dated June 10, 2002, in which Farmer agreed, in exchange for a non-refundable payment of $1,000, to conduct a preliminary investigation of Ivy's case, including an interview with Ivy, review of court documents, and legal research. The letter explained that after the preliminary review, Ivy would be “given his ... legal options.” (App. at 99.) It stated that if Farmer felt there were “viable legal avenues and the client wishes to continue,” Ivy would be provided a letter explaining the scope of Farmer's “full representation” and quoting a fee for such representation. (App. at 99.) In June 2002, Farmer met with Ivy in prison and reviewed certain court records made available by Laverne.

On July 1, 2002, Farmer sent Ivy a letter, with a copy to Ivy's grandparents. That letter stated Farmer's fee for full representation was $25,000, plus expenses. The letter explained what Farmer intended to do to assist Ivy as part of full representation, including speaking to witnesses and reviewing reports. The letter indicated that the primary hopes for obtaining relief would be obtaining new evidence and showing that the prosecutor knew some of the witnesses at trial were lying. In the letter, Farmer added, “I believe that we may be able to amend the post-conviction motion that you have pending.” (App. at 102.) ¹

Thereafter, the Ivys all agreed that Farmer would be paid $25,000, plus expenses, in exchange for him working on Ivy's case. At some time prior to October 31, 2003, the Ivys made an initial payment of $5,000. On October 31, 2003, or shortly thereafter, Farmer, Ivy, and Ivy's grandparents all signed an Engagement Agreement. It stated that the grandparents were agreeing to pay Farmer a flat fee of $25,000—of which $5,000 had already been paid—to represent Ivy “with respect to post-conviction work[, m]ainly to ascertain evidence and information that may lead to [Ivy's] current conviction being vacated.” (App. at 119.) The agreement stated that the grandparents would be billed periodically for the remainder of the flat fee. The grandparents made several payments toward the flat fee, ultimately paying Farmer a total of approximately $20,000.

After the Engagement Agreement, Farmer took the following actions. He met with Ivy again in prison in December 2003. On December 31, 2003, he drove to Muncie, Indiana, and copied some court records. In January and March 2004, he drove to Muncie to review trial exhibits, and he met with Ivy's trial attorney in March 2004. In July 2004, he met with Ivy again in prison. Sometime before March 2005, Farmer went to an Indiana prison to talk with Ivy's co-defendant, but that meeting was cut short when Farmer learned the co-defendant was represented by counsel. In March 2005, Farmer traveled to Muncie and met and talked with the co-defendant's attorney, and the two visited the murder scene. Later, Farmer made another trip to northern Indiana to interview the co-defendant.

As the result of grievances filed in Ohio by former clients, a disciplinary complaint was filed against Farmer in Ohio by December 9, 2004. That complaint led to a decision issued on November 1, 2006, suspending Farmer's license to practice law in Ohio from November 1, 2006, until April 1, 2008. Thereafter, Farmer was on probation in Ohio from April 1, 2008, to June 5, 2009.

Soon after being suspended, Farmer sent letters to Ivy and Eddie (Laverne had passed away by then) advising them of the suspension and suggesting that they find another attorney. Eddie advised Farmer that he still wanted Farmer to obtain an affidavit from a witness in Muncie as they had earlier planned. After the Ivys located that witness, Farmer and Eddie drove toward Muncie for the purpose of talking to that witness and collecting an affidavit from her. But Farmer and Eddie learned in transit through a telephone call that the witness was not available, and so they cut short their trip. (App. at 22.)

After Farmer's suspension ended in April 1, 2008, Farmer and Eddie discussed whether Farmer should resume work on Ivy's case. In June 2008, Farmer and Eddie met with Ivy in prison to discuss the matter. At that meeting, Farmer and Ivy agreed that Farmer would continue work on the case on a pro bono basis. (App. at 23, 235.) However, sometime in early 2009, Ivy filed a grievance against Farmer with the Ohio Supreme Court Disciplinary Counsel, prompting Farmer to terminate their agreement.²

At no time during his post-conviction work for Ivy did Farmer apply for temporary (“ pro hac vice ”) admission in connection with Ivy's pending post-conviction relief petition.³

Other relevant facts are discussed below.

Discussion

“Original actions ... to restrain or enjoin the unauthorized practice of law in this state may be brought in this court by the attorney general, the Indiana Supreme Court Disciplinary Commission, and the Indiana State Bar Association or any duly authorized committee thereof, without leave of court ....” Admis. Disc. R. 24. “The purpose of a proceeding under Admission and Discipline Rule 24 is not to find fault or assess liability but to protect the public from those not properly licensed or otherwise qualified to act as attorneys.” State ex rel. Indiana State Bar Ass'n v. Northouse, 848 N.E.2d 668, 674 (Ind.2006).

An action to enjoin the unauthorized practice of law “shall charge specifically the acts constituting the unauthorized practice.” Admis. Disc. R. 24. Here, after setting forth factual background information, the Commission's verified petition alleged specifically:

ACTS CONSTITUTING THE UNAUTHORIZED PRACTICE OF LAW

41. Farmer engaged in the unauthorized practice of law when, not being admitted to practice law in the State of Indiana, he provided legal services to an Indiana inmate regarding an Indiana legal matter for a period of approximately three (3) years.

42. Farmer further engaged in the unauthorized practice of law when, while suspended from the practice of law in Ohio, he traveled to Indiana for the purpose of interviewing and collecting an affidavit from a witness.

(Pet. at 5 (bold emphasis in original).)

The Court examines the Commission's claims in each of these two paragraphs, considering the evidence in light of the Commission's burden of proof. See State ex rel. Ind. State Bar Ass'n v. Diaz, 838 N.E.2d 433, 438 (Ind.2005) (adopting commissioner's findings of fact where supported by clear and convincing evidence). Here, the parties agree that the Commissionbears the burden of proof by clear and convincing evidence. (Respondent's Br. at 1, 8; Ind. Sup. Ct. Oral Argument Tr. at 50:01–50:07.) Accordingly, the Court applies that burden of proof here.

The “clear and convincing” standard is an intermediate standard of proof that lies between the “preponderance of the evidence” standard used in most civil proceedings and...