Matter of Reed

500 N.E.2d 1189, 1986 Ind. LEXIS 1401

• Court: Indiana Supreme Court
• Decided: December 9, 1986
• Docket: 985S374
• Status: Published

Opinions

DISCIPLINARY ACTION

DICKSON, Justice.

Respondent Richard W. Reed, an attorney admitted to the Bar of this Court, has been charged under a complaint alleging that by accepting and continuing private employment in matters involving child support and custody at times during which he was a duly appointed deputy prosecuting attorney, the respondent has violated certain disciplinary rules of the Code of Professional Responsibility for Attorneys at Law.

The Disciplinary Commission and the respondent have submitted their joint statement of circumstances and conditional agreement for our review.

In considering this matter, we observe the need to revise and clarify the application of the professional responsibility rules ¹, in order to enhance the effective and economical administration of justice.

Various statutory duties have been imposed wherein the prosecutor, as part of his official function, would undertake to represent a person in a divorce or dissolution matter. Indiana statutes dating back to 1878 and continued in force until 1971 required the county prosecutor to appear and "resist and defend" against petitions for divorce where an appearance has not otherwise been entered for the defendant.² Notwithstanding the elimination of this duty, the office of prosecuting attorney remains empowered to act in various matters relating to dissolution and support including, for example, reciprocal enforcement of support, Ind.Code § 31-2-1-1 et seq.; offenses against the family, Ind.Code §§ 35-46-1-1 et seq; interstate compact of juveniles, Ind.Code § 31-6-10-1 et seq; and, child in need of services proceedings, Ind.Code § 31-6-4-10 et seq. It is thus apparent that an attorney charged with the public prosecutorial function cannot serve as private counsel to a party in a dissolution or related matter without substantial potential for offending the proscription against engaging in conduct prejudicial to the administration of justice, and possibly other standards of professional responsibility.

We recognize, however, that it is not uncommon for part-time deputy prosecutors to be employed for limited functions excluding matters related to marriage dissolution. The use of such part-time deputy prosecutors can be advantageous. Without unreasonably burdensome salary expenditures, experienced local attorneys can be attracted to assist in the prosecution of various criminal matters, while still being permitted to continue in their private law practices, excluding criminal defense cases.

Where the employment of such part-time deputy prosecutors is predicated upon a prior, express written limitation of responsibility to exclude dissolution-related matters, we can find no reasonable purpose for perpetuating the prohibition against involvement in dissolution cases in their private law practice.

We are unable to determine from the Statement of Circumstances and Conditional Agreement whether, at the time of his private law practice in dissolution-related matters, the respondent's authority as a part-time deputy prosecutor was expressly limited to exclude dissolution-related matters. Absent this information, we decline to approve the Statement of Circumstances and Conditional Agreement submitted on behalf of the respondent and the Disciplinary Commission.

DeBRULER and SHEPARD, JJ., concur. GIVAN, C.J., concurring in result with separate opinion in which PIVARNIK, J., concurs.

1 . The rationale underlying this opinion would apply also to the professional standards embodied in the Model Rules of Professional Conduct recently adopted by this Court.

2 . Ind.Code §§ 31-1-12-20, enacted Acts of 1873, Ch. 43, § 26, p. 107, repealed by Acts of 1971, Public Law 417, § 1; Ind.Code §§ 1213-1215 enacted by Acts of 1913, Ch. 64, §§ 1-3, p. 151, repealed by Acts of 1971, Public Law 418, § 1.