In the Matter of Michael A. Blickman ( 2020 )

FILED
Dec 09 2020, 10:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 18S-DI-553
In the Matter of
Michael A. Blickman,
Respondent.
Decided: December 9, 2020
Attorney Discipline Action
Hearing Officer Terry C. Shewmaker
Per Curiam Opinion
Chief Justice Rush and Justices David, Massa, and Goff concur.
Justice Slaughter concurs in part and dissents in part with separate opinion.
Per curiam.
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.
Procedural Background and Facts
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
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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
1 Unbeknownst to Respondent at the time, Miller simultaneously sought a second opinion
from a Massachusetts attorney, who provided Miller with substantially similar advice.
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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
2Father testified that Student’s therapist had been referred to the family by Miller and
Respondent during the December 14 meeting, and that Father later learned “part of the
agreement that we signed with [the therapist’s] agency included his ability to share
[Student’s] case file with the school.” (Tr. Vol. 1 at 59, 68).
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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.
Respondent initially told police he did not know where the materials were
but they were not at the school. 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).
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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:
1.1: Failing to provide competent representation.
1.2(d): Counseling or assisting a client in conduct the lawyer knows
to be criminal or fraudulent.
8.4(b): Committing criminal acts that reflect adversely on the
lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(d): Engaging in conduct prejudicial to the administration of
justice.
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.
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Discussion and Discipline
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 convincing evidence. See Ind. Admission and
Discipline Rule 23(14)(g)(1). While our review process in disciplinary
cases involves a de novo examination of all matters presented to the Court,
the hearing officer’s findings receive emphasis due to the unique
opportunity for direct observation of witnesses. See Matter of Keiffner, 79
N.E.3d 903, 905 (Ind. 2017).
1. Efforts to silence Student and her family. The hearing
officer concluded that Respondent’s efforts to prevent Student and her
family from cooperating with law enforcement and DCS amounted to
incompetent representation in violation of Rule 1.1. Respondent
challenges this conclusion, while the Commission argues that
Respondent’s actions violated both Rules 1.1 and 8.4(d). We agree with the
Commission.
Respondent argues he did not perform incompetently in this regard
because the confidentiality provision was included in the proposed
settlement agreement at the mutual wish of both Park Tudor and the
Student’s family, Respondent reasonably believed all required reporting
already had been done, and neither the family nor Park Tudor had any
further duty to disclose information or to cooperate. We observe initially
that Respondent’s argument is belied by his own conduct. If the
confidentiality provision truly had been mutually intended to encompass
communications with DCS and law enforcement, there would have been
no need for Respondent to send an email to Dassow on January 4 (the date
Student’s family had agreed to meet with DCS) threatening to pull out of
the proposed settlement if the family went forward with the meeting.
3 Respondent also has filed a motion for oral argument, which we deny.
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More importantly, Respondent’s professed belief that Park Tudor had
made a full disclosure of all relevant facts and circumstances to DCS on
December 15, including the existence of illicit texts and pornographic
content, undercuts rather than supports his claim of professional
competence. If Respondent believed that full disclosure already had
occurred, it is difficult to conceive what legitimate objective might be
gained from preventing either Park Tudor personnel or the Student’s
family from speaking with DCS or law enforcement during any follow-up
on that initial report. As the hearing officer succinctly concluded, “[n]o
adequate or logical explanation has been advanced by [Respondent]. No
legitimate reason exists. It is pure and simple against public policy.”
(HO’s Report at 19). Respondent’s pursuit of this aspect of the
confidentiality agreement not only lacked legitimate purpose, it ultimately
was a significant contributing factor to the reputational harm and criminal
exposure suffered by his client. (See Ex. Vol. at 138 (deferred prosecution
agreement citing the proposed confidentiality agreement as one of several
grounds subjecting Park Tudor to prosecution for misprision of a felony)).
The same facts and conclusions cited by the hearing officer in this
regard also point to a Rule 8.4(d) violation for conduct prejudicial to the
administration of justice. Although the hearing officer did not directly
explain his reasoning for declining to find a Rule 8.4(d) violation, we
surmise three possible reasons from findings made elsewhere in his
report: (1) the settlement agreement was never executed; (2) Respondent’s
actions ultimately did not cause Student or her family to refuse to
cooperate with DCS or law enforcement; and (3) Respondent later clarified
in his January 8 email to Dassow that the confidentiality provision in the
proposed settlement agreement did not prohibit communications with
DCS or law enforcement. (HO’s Report at 22-24).
The fact the settlement agreement was never executed is inapposite to a
Rule 8.4(d) analysis, because it is the impropriety of the demand that gives
rise to the violation. See, e.g., Matter of Campanella, 56 N.E.3d 631 (Ind.
2016) (finding violation of Rule 8.4(d) where attorney threatened to file a
disciplinary grievance against opposing counsel if a settlement demand
was not met); Matter of Halpin, 53 N.E.3d 405 (Ind. 2015) (finding violation
of Rule 8.4(d) where attorney threatened to press criminal charges against
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the opposing party and disciplinary charges against opposing counsel if
they did not accede to the attorney’s demands for a venue change). And
here, the demand made by Respondent was plainly improper, not simply
because it was contrary to public policy but because it actively sought to
subvert justice. After all, had the efforts to silence those involved been
successful, the result would have been to shield Cox from answering for
his crimes and to turn loose a child predator to teach and coach at another
unsuspecting school.
Father’s testimony in this matter draws a clear causal connection
between Respondent’s January 4 email and the cancellation of the DCS
interview. (Tr. Vol. 1 at 98-99). That Father did not cite Respondent’s
demand for confidentiality when he called DCS to cancel the interview is
hardly surprising, nor does it cure the violation that occurred when the
improper demand was made. Respondent’s January 8 email to Dassow
similarly was not curative under the circumstances. By the time
Respondent sent this email, search warrants already had been executed at
the school and Student’s home, and Respondent had been forced to
disclose the existence of and turn over the materials in his possession. In
context, this email was not a clarification or withdrawal of the improper
demand but rather an acknowledgement that the wall of secrecy already
had been involuntarily breached.
For the reasons set forth above, we conclude that Respondent’s
attempts to prevent Student and her family from cooperating with DCS or
law enforcement amounted to incompetent representation in violation of
Rule 1.1 and conduct prejudicial to the administration of justice in
violation of Rule 8.4(d).
2. Timeliness of advice to make DCS report. The hearing
officer concluded the timing of Respondent’s advice to Miller was
reasonable under the circumstances and did not violate either Rule 1.1
(incompetence) or 1.2(d) (counseling or assisting a criminal act) as alleged
by the Commission. The Commission seeks review, arguing both rules
were violated.
The hearing officer’s analysis and the parties’ arguments depend
heavily on C.S. v. State, 8 N.E.3d 668 (Ind. 2014), a case in which a high
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school principal was convicted at a bench trial of failing to “immediately”
report a suspected incident of child abuse to DCS or law enforcement as
required under the Indiana Code. In C.S., the principal learned at
approximately 12:30 p.m. that a student allegedly had been raped by
another student in a bathroom at the school. School staff alerted the
victim’s residential custodian, and during the next few hours the principal
and other school personnel attempted to investigate the rape on their own
while also attending to unrelated administrative tasks. During this time
the principal repeatedly declined to contact the police when asked, even
though there were several police officers stationed in the school. The
principal, assisted by other school personnel, did not contact DCS until
4:30 p.m.
We affirmed the principal’s conviction for failing to timely report the
matter, holding among other things that the evidence was sufficient to
support the factfinder’s determination that the principal either knew or
should have known that the alleged rape amounted to “child abuse” and
that he did not make his report “immediately.” In so holding, we
emphasized that the immediacy element “is necessarily a case-specific and
fact-specific question” and “the length of the delay is not the only thing
that matters. What also matters is the urgency with which the person files
the report, the primacy of the action, and the absence of an unrelated and
intervening cause for delay.” Id. at 691. Our affirmance of the principal’s
conviction in C.S. was not unanimous; a dissenting opinion would have
applied the rule of lenity, noting “[t]he charged offense requires reference
to no fewer than five separate statutory provisions contained in two
different titles and four different articles of the Indiana Code” and “[t]he
statutes at issue are ambiguous, confusing, complex, and interwoven.” Id.
at 692-93.
C.S. was issued a little less than two years prior to the events in
question here. It was, and remains, the leading case in Indiana addressing
the reporting requirement. However, Respondent – an employment law
attorney serving as outside counsel for Park Tudor and whose client base
was about 20% educational – testified that at the time this matter arose he
was unfamiliar with C.S. and only passingly familiar with the mandatory
reporting statutes. Accordingly, when Miller asked Respondent mid-
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afternoon on December 14 if the school was required to make a report,
Respondent indicated he did not know and would have to research this.
Respondent left the school around 7:30 p.m., awoke very early the
following morning to research the question, and notified Miller by phone
at approximately 7:00 a.m. that an immediate report was required.
The Commission’s expert witness testified in this matter “that most
lawyers who represent schools would be familiar with the child abuse
reporting requirements of state law because it comes up so often” and
noted the importance of these requirements had been reinforced and
publicized amongst school professionals and lawyers in the wake of C.S.
(Tr. Vol. 3 at 770-72). Without question, it would have been better for an
attorney such as Respondent with a significant educational client base to
have been more immediately familiar with the reporting requirements.
But Rule 1.1 does not demand perfection or even specialized expertise
from attorneys. Rather, it demands competency and explicitly anticipates,
both in the text of the rule and its commentary, that preparation and
research frequently will be necessary to meet the needs of the
representation. Here, the hearing officer found Respondent “acted
reasonably and timely by researching the law on the requirement of
reporting the incident to DCS.” (HO’s Report at 13). The complexity of the
reporting statutes, the Commission’s clear-and-convincing burden of
proof, and the deference we accord to the findings of the hearing officer,
collectively persuade us (albeit narrowly) to find in Respondent’s favor on
this Rule 1.1 charge.
We likewise find in Respondent’s favor on the Rule 1.2(d) charge. While
it is abundantly clear from the record before us that Miller did not timely
report the matter to DCS, and indeed was doing everything in his power
to avoid having to report, there is scant evidence that Respondent
counseled Miller’s criminal conduct or knowingly assisted it. Regardless
of whether Respondent should have known of the reporting requirement
when Miller first asked him on December 14, the evidence is undisputed
that Respondent did not know and accurately advised Miller that he did
not know at that time. Nor did Respondent remain willfully ignorant
thereafter; rather, after concluding his meeting with Miller around 7:30
p.m., Respondent awoke in the wee hours of the following morning to
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research the issue, notified Miller around 7:00 a.m. a report was required
and should be made “right away,” and was told by Miller in response “All
right. We will.” (Tr. Vol. 3 at 609). Respondent even offered to make the
report himself and had his secretary obtain the contact information, but
Miller again told Respondent that the school would report. (Id. at 609-612).
Miller inexcusably delayed about seven more hours before having Hart
make the report, and Miller took steps to cause Hart’s report to be
materially misleading and incomplete, but Respondent was not aware of
any of this until much later.
The Commission points to Respondent’s awareness that Miller did not
want to make a report if one was not mandatory. But awareness of
Miller’s preferences, by itself, falls well short of establishing that
Respondent counseled or assisted Miller in criminal conduct. The
Commission also points to two prior incidents in which Respondent had
briefly discussed with Park Tudor personnel other instances of possible
child abuse. One of these, disconcertingly, also had involved allegations of
inappropriate texts by Cox, while the other instance had involved physical
contact between two students in a stairwell. But a different attorney had
assisted Miller in the prior investigation of Cox, and Respondent’s role in
that matter largely was limited to documenting the concluded
investigation in his file. And while Respondent did play a more active
legal role in response to the stairwell incident, including examining
whether a report to DCS or law enforcement had to be made, the student-
to-student physical contact at issue there differed substantially from the
teacher-to-student sexting at issue here. These prior incidents certainly
should have alerted Respondent to the recurrence of these types of issues
in school settings and the benefit of better familiarizing himself with the
reporting requirements in order to serve his educational client base.
However, under the circumstances they offer negligible inferential
support for the Commission’s allegation that Respondent counseled or
knowingly assisted Miller’s criminal conduct in this matter.
3. Failing to directly report the matter to DCS. Thus far we
have addressed Respondent’s role in Miller’s failure to timely report this
matter to DCS. But the Commission also charged Respondent with a Rule
8.4(b) violation based on Respondent’s failure to report the matter
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directly, and it now seeks our review of the hearing officer’s
determination that Respondent did not violate this rule. We agree with the
hearing officer and find no violation.
Rule 8.4(b) has two essential elements, both of which must be found by
clear and convincing evidence before a violation may be found: the lawyer
must have (1) committed a criminal act (2) that reflects adversely on the
lawyer’s honesty, trustworthiness, or “fitness as a lawyer in other
respects.” See Matter of Hill, 144 N.E.3d 184, 190 (Ind. 2020).
Indiana’s reporting statutes generally require anyone who becomes
aware of possible child abuse to report the matter to DCS or to local law
enforcement. I.C. § 31-33-5-1. As applied to an attorney though, this
requirement may come into tension with the confidentiality provisions of
Professional Conduct Rule 1.6. Whether an attorney who learns of
possible child abuse during the course of representing a client4 has a duty
to report is a question of considerable academic debate and has not been
addressed by this Court.
In mid-2015, the Legal Ethics Committee of the Indiana State Bar
Association issued an advisory opinion examining this question, which it
described as “a difficult one on which reasonable, conscientious lawyers
can disagree.” In sum, the Committee concluded that “the lawyer’s duty
of confidentiality is generally paramount over the general duty to report.”
More specifically, because the confidentiality provisions of Rule 1.6 permit
an attorney to reveal otherwise confidential information “to prevent
reasonably certain death or substantial bodily harm,” the Committee
opined that in such limited circumstances the permissive maintenance of
confidentiality under Rule 1.6 should yield to the mandatory reporting
required by statute, and therefore an attorney must report suspected child
4The Commission points out that Respondent learned of the possible child abuse from a third
party (Father) and not from his client, but the commentary to Rule 1.6 makes clear this is a
distinction without a difference here. “The confidentiality rule . . . applies not only to matters
communicated in confidence by the client but also to all information relating to the
representation, whatever its source.” Prof. Cond. R. 1.6, cmt. [3].
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abuse if the attorney believes it necessary “to prevent reasonably certain
death or substantial bodily harm.” In all other instances involving lesser
harm though, the Committee concluded an attorney may not report
information absent client consent. ISBA Legal Ethics Comm. Op. No. 2
(2015).
At the time this matter arose, other legal scholars had reached
somewhat similar conclusions. See Donald R. Lundberg, “Mandatory
Child Abuse Reporting by Lawyers,” 55 Res Gestae 31, 32 (Dec. 2011)
(positing that I.C. § 31-32-11-1’s omission of attorney-client privilege from
the list of common law privileges that do not require the exclusion of
evidence in a judicial proceeding resulting from a failure to report
possible child abuse demonstrates “the legislature believes the attorney-
client privilege trumps the duty to report child abuse”); see also Megan M.
Smith, Note, Causing Conflict: Indiana's Mandatory Reporting Laws in
the Context of Juvenile Defense, 11 Ind. Health L. Rev. 439, 453-469 (2014)
(discussing several reasons why attorneys should not be mandatory
reporters). Illustrating though the ISBA’s observation that reasonable
minds can disagree, the view that client confidentiality generally prevails
over mandatory reporting under Indiana’s existing rules and statutes has
not been universal. See Alberto Bernabe, “Through the Looking Glass in
Indiana: Mandatory Reporting of Child Abuse and the Duty of
Confidentiality,” 92 Notre Dame Law Review Online 22 (2016).
We need not resolve today whether attorneys are subject to the Indiana
Code’s mandatory reporting requirements in connection with information
obtained during the course of a representation. Assuming solely for the
sake of argument they are, and assuming further that Respondent failed to
comply with those requirements,5 under the circumstances of this case any
such criminality by Respondent lacks the requisite nexus to his
professional fitness to support a Rule 8.4(b) violation. Simply put, possibly
guessing incorrectly about an unsettled legal matter, upon which
5We acknowledge, but need not address, Respondent’s argument that he would have been
relieved of any statutory obligation to report once he reasonably believed Miller had made
such a report. (Resp. Br. at 7 (citing I.C. § 31-33-5-3)).
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reasonable minds can differ and indeed have differed, does not reflect
adversely on Respondent’s honesty, trustworthiness, or fitness as a
lawyer.
4. Possession of child pornography. The Commission charged
Respondent with a second Rule 8.4(b) violation based on Respondent’s
handling of the materials provided to him by Father, which the
Commission alleges amounts to criminal possession of child pornography.
See I.C. § 35-42-4-4 (2015); 18 U.S.C.A. § 2252(a) (2015). The Commission
seeks review of the hearing officer’s determination that no violation
occurred. Although this Rule 8.4(b) allegation presents a much closer
question, we nonetheless agree with the hearing officer and find no
violation.
We begin with several straightforward observations. The materials at
issue in this case included among other things a digitized image of
Student’s vagina. This image was a screenshot taken from a video on
Student’s laptop. (The computer specialist at Respondent’s firm tried, but
was unable, to copy the video). Father, Miller, and Respondent all knew
that Student was fifteen years old. No argument has been advanced that
the image and video do not depict sexual conduct, or that in context they
have “serious literary, artistic, political, or scientific value.” See I.C. § 35-
42-4-4(c) (2015). Without question, this was child pornography.
Respondent argues his intent in possessing these materials was to
preserve evidence in connection with Cox’s termination. The hearing
officer found as much and the Commission does not challenge this
finding. But neither the state nor federal criminal statute requires the
possessor to have acted with any prurient or financial intent or other
nefarious motive. And while there is a safe harbor for a “school
employee” whose possession of child pornography was “performed solely
within the scope of the person’s employment as a school employee,” I.C. §
35-42-4-4(e) (2015), Respondent was outside counsel and not a school
employee.
Still, there are problems with application of the expansive view urged
by the Commission, which seemingly would ascribe criminality under
these circumstances not only to Respondent’s possession of these
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materials but also to Father’s possession of them. Moreover, much like the
duty-to-report issue addressed above, application of these statutes to an
attorney who comes into possession of the contraband during the course
of representing a client has the potential in some circumstances to come
into tension with other professional responsibilities.
Having carefully reviewed the record, the hearing officer’s report, and
the parties’ briefs, we ultimately conclude, as we did with Respondent’s
duty-to-report, that under the circumstances of this case any criminality
involved with Respondent’s possession of these materials is not of a
nature that reflects adversely on his honesty, trustworthiness, or fitness as
a lawyer. This was not a situation where the attorney sought to satisfy his
prurient interests by viewing child pornography, see Matter of Raquet, 870
N.E.2d 1048 (Ind. 2007), or by sexually exploiting a client’s underage
family member. See Matter of Wood, 489 N.E.2d 1189 (Ind. 1986). Nor are
we persuaded by the Commission’s argument that the circumstances
surrounding Respondent’s possession of these materials are analogous to
Matter of Schalk, 985 N.E.2d 1092 (Ind. 2013), in which an attorney
representing a client in a criminal matter enlisted two co-conspirators to
purchase marijuana from a witness for the prosecution.
Our narrow conclusion that the requisite nexus between Respondent’s
alleged criminality and his fitness has not been proven clearly and
convincingly should not be read as an endorsement of Respondent’s
conduct. The best course of action for all who took possession of these
materials, including Respondent, would have been to promptly involve
law enforcement. There was no legitimate reason not to do so here; this
was a situation where one would have expected the school and the
school’s attorney to have overlapping interests with law enforcement in
protecting children from a known predator. As one long-time detective
testified, “I've never had a school not wish to provide information about a
staff member who is committing violent and child seduction, like protect
the kid, it didn't make sense to me[.]” (Tr. Vol. 1 at 270). The quandary in
which Respondent found himself was an unnecessary one of his own
making, borne of his and his client’s misguided goals to cover up what
Cox had done. That any adverse reflection upon Respondent’s fitness in
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 16 of 26
this regard derives from this incompetence, and not from any criminality,
does not excuse his poor handling of these materials.
5. Other allegations. The Commission also argues in its petition
for review that Respondent violated Rule 1.1 and/or Rule 8.4(d) in
connection with his possession of child pornography, failure to directly
report child abuse to DCS, interference of law enforcement, and advice to
Miller in other respects. While some of these arguments have force, we
need not separately address them, as we already have found violations of
Rules 1.1 and 8.4(d) and our consideration of an appropriate sanction
contemplates Respondent’s conduct in toto.
6. Sanction. Both parties have briefed extensively the question of
appropriate sanction. Respondent urges that no more than a private
reprimand be imposed, while the Commission asks us to suspend
Respondent without automatic reinstatement. Under the circumstances of
this case, we cannot accept either of these positions.
Respondent relies on several of the American Bar Association’s
Standards for Imposing Lawyer Sanctions, to which we frequently turn
for guidance. See Matter of Hollander, 27 N.E.3d 278, 280 (Ind. 2015). In
particular, Respondent cites Standard 1.2, which provides that private
discipline may be appropriate “in cases of minor misconduct, when there
is little or no injury to a client, the public, the legal system, or the
profession[.]” While we have no quarrel with this general proposition, it
has no bearing here. Respondent’s misconduct was not minor; he
incompetently represented a client and prejudiced the administration of
justice by attempting to silence a child solicitation victim and her family.
There was substantial reputational and legal injury suffered by his client;
and although Park Tudor certainly bears its own share of responsibility
for that injury, Respondent’s misconduct was a direct contributing factor.
Finally, while public injury thankfully was mitigated by the extraordinary
efforts of law enforcement in this case, we cannot ignore that the logical
outcome of Respondent’s misguided actions would have been to shield
Cox from accountability and enable him to victimize other children.
On the other side of the ledger, the Commission’s request for
suspension without automatic reinstatement depends heavily on two
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faulty premises; first, that Respondent committed all the rule violations
with which he was charged, particularly those involving criminality, and
second, that Respondent lacks insight or remorse because he has not
acknowledged any misconduct. Respondent was entitled to mount a
good-faith defense to the charges against him and has done so. Many of
the issues presented in this case are difficult ones, Respondent has
prevailed on several of his arguments, and we do not view his failure to
prevail on others as an aggravating factor. Once these faulty premises are
set aside, none of the remaining factors relevant to sanction (which we
discuss below) are of a quality that ordinarily would prompt us to require
an attorney to undergo the reinstatement process in order to resume the
practice of law. See Hill, 144 N.E.3d at 196.
This leaves us to weigh a public reprimand or short suspension with
automatic reinstatement. Weighing heavily in Respondent’s favor are his
lack of prior discipline in over four decades of practice, the unique
challenges presented in this matter, the absence of a selfish motive for his
misconduct, and the absence of a broader pattern of misconduct extending
beyond this single case. Respondent’s substantial experience in the
practice of law also weighs against him though, because it counsels he
should have known better than to chart the path he did. And weighing
most heavily against Respondent is the nature of his misconduct, which
sought to silence a fifteen-year-old crime victim and frustrate law
enforcement, and the fact Respondent’s misconduct was a contributing
factor to the harm suffered by his client when this misguided wall of
secrecy came crashing down.
After careful consideration, we conclude that the balance of factors
relevant to professional sanction weighs slightly in Respondent’s favor,
and we agree with the hearing officer’s recommendation that under the
circumstances present here a public reprimand is sufficient discipline for
Respondent’s misconduct.
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 18 of 26
Conclusion
The Court concludes that Respondent violated Indiana Professional
Conduct Rules 1.1 and 8.4(d). For Respondent's professional misconduct,
the Court imposes a public reprimand. The costs of this proceeding are
assessed against Respondent, and the hearing officer appointed in this
case is discharged with the Court’s appreciation.
Rush, C.J., and David, Massa, and Goff, JJ., concur.
Slaughter, J., concurs in part and dissents in part with separate
opinion.
ATTORNEYS FOR RESPONDENT
Theodore R. Boehm
Wayne C. Turner
Riley H. Floyd
Indianapolis, Indiana
ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
G. Michael Witte, Executive Director
Seth T. Pruden, Staff Attorney
Julie Bennett, Staff Attorney
Indianapolis, Indiana
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 19 of 26
Slaughter, J., concurring in part, dissenting in part.
Unlike the Court, I would find that Respondent, Michael A. Blickman,
did not violate Rules of Professional Conduct 1.1 and 8.4(d) while
representing Park Tudor School and thus warrants no sanction. I concur in
Parts 2 through 5 of the Court’s opinion and respectfully dissent from
Parts 1 and 6.
I
Under Indiana Rule of Professional Conduct 1.1, a lawyer must
“provide competent representation to a client.” The hearing officer found,
and the Court agrees, that Blickman violated this rule, concluding that his
representation of the School was incompetent. This conclusion is based on
Blickman’s drafting a proposed settlement agreement with a
confidentiality provision. The hearing officer made three relevant findings
concerning the settlement agreement:
1. When Blickman drafted the agreement, he thought Park Tudor
had observed its reporting obligation to the Department of Child
Services.
2. Blickman reasonably believed that both the family and Park
Tudor sought confidentiality.
3. As a result of this “shared goal”, Blickman drafted the proposed
settlement agreement with a confidentiality provision similar to
provisions he had used in other employment matters.
The Court does not refute these findings but nonetheless concludes
that the proposed agreement tried to “silence” the student and her family,
so they would not cooperate further with government authorities. Ante, at
7. Characterizing Blickman’s use of a confidentiality clause as an
inappropriate attempt to silence the family ignores that Blickman drafted
the provision based on his reasonable belief that it served the parties’
“shared goal” of keeping this matter confidential. And, in any event, it is
far from clear that including a confidentiality provision in a contract is
contrary to existing law—and thus would warrant today’s conclusion that
the lawyer provided incompetent representation. I am aware of no
authority holding that, and the Court cites none. Even the hearing officer
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 20 of 26
recognized that the confidentiality clause Blickman used was one he had
used in other matters without incurring professional sanction.
If Blickman’s conduct rested on a viable legal basis, then I see no
grounds to find that he was incompetent under Rule 1.1, which says that
“[c]ompetent representation requires the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the
representation.” But the Court’s conclusions, adopted from the hearing
officer’s report, do not implicate Blickman’s legal knowledge, skill,
thoroughness, or preparation. Instead, the Court finds Blickman
incompetent for trying to effectuate his client’s wishes in a way that relied
on, at worst, an unproven legal basis.
Though unproven in this context, Blickman’s proposed use of a
settlement agreement with a confidentiality provision for the mutual
benefit of all parties is common when addressing workplace issues
generally. In a typical employment dispute, Blickman’s approach would
raise no eyebrows. But Blickman’s conduct, it seems, is being censured
here because the case involves a minor. Yet even the most competent
lawyer cannot guarantee the outcome of an untested legal position until a
court decides the issue. Perhaps a court could find the difference here
enough to distinguish these facts from a typical case. Perhaps a court
could find a key difference based on mandatory reporting requirements in
situations involving children. And, ultimately, perhaps a court could have
invalidated the settlement agreement or the confidentiality provision,
assuming the parties had executed them. But Blickman should not be held
incompetent for conduct not at odds with prevailing law.
When the issue is incompetent representation, we ask whether the
lawyer’s “actions show a major deviation from minimum professional
standards.” Matter of Rabb, 704 N.E.2d 117, 118 (Ind. 1998). Consider
examples of behavior we have previously sanctioned under Rule 1.1 as
major deviations from prevailing standards:
• a lawyer lied about a judge in an appellate brief, Matter of Becker,
620 N.E.2d 691, 693 (Ind. 1993);
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 21 of 26
• a lawyer with active matters closed his practice with no notice to
his clients, Matter of Comer, 648 N.E.2d 358, 358–59 (Ind. 1995);
and
• a lawyer failed to file his client’s claim for five years, resulting in
the statute of limitations barring the claim. Matter of Rabb, 704
N.E.2d at 118.
In each of these cases, the lawyer lacked sufficient knowledge, skill,
thoroughness, or preparation. For instance, judges and lawyers for
decades have cautioned against resorting to lies or ad hominem attacks
against judges, and it is common knowledge that engaging in such tactics
is likely to prejudice a client’s case. See, e.g., Roger J. Miner, Twenty-Five
“Dos” for Appellate Brief Writers, 1 Scribes J. Legal Writing 19, 24–25 (1992)
(“Attacks in the brief on brothers and sisters at the bar rarely bring you
anything but condemnation by an appellate court. . . . And never, never
attack the trial judge!”). Similarly, even minimally competent lawyers
must have the thoroughness and preparation to advise their clients they
will need new representation if the lawyer closes a practice or to recognize
that a five-year statute-of-limitations deadline is approaching. These cases
underscore that professional incompetence is not merely unsavory
conduct but a major deviation from minimum professional standards. Yet
today’s decision departs from this major-deviation yardstick and
sanctions Blickman for conduct—trying to include a confidentiality
provision in a settlement agreement—that not only does not violate our
precedent but is common practice in the profession.
The Court also finds that Blickman was incompetent for subjecting the
School to reputational harm and criminal exposure. But this view mistakes
both the facts and our legal standard for competence. Factually, the Court
cites Blickman’s conduct as a “significant contributing factor” for the
deferred-prosecution agreement between the School and the Department
of Justice. Ante, at 8. But the deferred-prosecution agreement makes only
brief mention of the confidentiality provision, stating in its entirety:
“Beginning on December 16, 2015, the Park Tudor Head of School
authorized Park Tudor’s outside counsel to negotiate a confidentiality
agreement with Minor Victim 1’s parents.” The deferred-prosecution
agreement never says that Blickman’s conduct exposed the School to
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reputational harm or criminal exposure. In fact, the agreement focuses not
on Blickman’s conduct, but on that of Miller, the head of school. No fair
reading of this agreement supports the view that Blickman, by drafting
the confidentiality provision or reminding the student’s father about the
provision, subjected the School to greater reputational harm or criminal
liability than that already caused by the reprehensible actions of Cox, the
offending teacher, or Miller.
And, legally, a lawyer’s competence is not judged by whether the
client’s position subjects it to reputational harm or criminal liability.
Clients through their counsel often explore legal options that may run the
risk of liability or other harm. The proper inquiry under Rule 1.1 is
whether Blickman, in representing Park Tudor, neglected his legal
knowledge, skill, thoroughness, or preparedness to such a degree that he
failed to meet even minimum professional standards. I would hold he did
not.
Finally, the Court agrees with the hearing officer that Blickman’s
efforts to negotiate a confidentiality provision with the family’s lawyer
were “pure and simple against public policy.” Ante, at 8. There is no doubt
that protecting children from predatory teachers and from those who look
the other way in the face of such conduct is a compelling public-policy
interest. But even assuming that Blickman’s conduct was against public
policy, this is not the proper benchmark for assessing a Rule 1.1 violation.
And by using such a benchmark, today’s decision may have serious
consequences for other lawyers.
Transactional lawyers who negotiate contract provisions held to be
unenforceable on public-policy grounds may now face professional
sanction, because it is not uncommon for courts to invalidate provisions
within commercial contracts. See, e.g., Am. Consulting, Inc. v. Hannum
Wagle & Cline Eng’g, Inc., 136 N.E.3d 208, 214 (Ind. 2019) (invalidating
liquidated-damages clause); Cent. Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d
723, 730 (Ind. 2008) (rejecting geographic limitation in noncompetition
agreement); Cincinnati Ins. Co. v. Trosky, 918 N.E.2d 1, 10 (Ind. Ct. App.
2009) (severing exclusion of government vehicle from underinsured-
motorist provision); Ransburg v. Richards, 770 N.E.2d 393, 403 (Ind. Ct.
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 23 of 26
App. 2002) (voiding exculpatory clause in residential lease). Today’s
decision threatens lawyers who draft provisions held to be unenforceable
because contrary to public policy.
The decision may also affect criminal-defense lawyers. Claims that trial
or appellate counsel failed to provide the minimal level of competence
required by the Sixth Amendment are a dime-a-dozen. After today’s
decision, it is not hard to imagine that a judicial finding (or even a
plausible allegation) that counsel was ineffective under Strickland v.
Washington, 466 U.S. 668 (1984), will trigger a disciplinary complaint.
Given the Court’s reasoning that Blickman’s conduct “was a significant
contributing factor to the reputational harm and criminal exposure
suffered by his client”, ante, at 8, it appears this precise rationale would
likewise apply to a lawyer found or alleged to be ineffective under
Strickland.
The same appears true of prosecuting attorneys and their appellate
counterparts in the attorney general’s office. If their subpar performance
costs the State a conviction, or if they rely on an unsettled yet defensible
legal basis and lose, they too may be subject to professional discipline.
Rather than resorting to professional discipline charged by our
commission and meted out by our Court, I would leave it to the
marketplace to punish lawyers who are not up to snuff. Or, at the very
least, I would observe our own precedent and sanction only conduct that
clearly fails to meet even minimal competency standards.
II
Rule 8.4 says “it is professional misconduct for a lawyer to”, among
other things, “engage in conduct that is prejudicial to the administration
of justice”. Prof. Cond. R. 8.4(d) (cleaned up). Although the Court finds
that Blickman violated Rule 8.4(d), the hearing officer found otherwise.
The record supports the hearing officer’s finding, and I would hold that
Blickman did not violate this rule. In my view, the Court errs by equating
a lawyer’s competence with whether the lawyer’s conduct prejudiced the
administration of justice: “The same facts and conclusions cited by the
hearing officer in this regard also point to a Rule 8.4(d) violation”. Ante, at
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 24 of 26
8. The Court’s analysis overlooks that Rules 1.1 and 8.4(d) govern different
misconduct.
Under Rule 8.4(d), conduct is “prejudicial to the administration of
justice” when the lawyer impedes judicial proceedings by acting in bad
faith and without a legal basis. This is true in both cases the Court cites. In
Matter of Campanella, 56 N.E.3d 631, 632 (Ind. 2016), a lawyer threatened
treble damages in open court during a small-claims case despite knowing
that the client had no additional damages. And, later, in a separate suit
over a used vehicle’s trade-in value, the lawyer demanded $200,000,000
and threatened to file a disciplinary grievance against opposing counsel if
the demand was not met. Id. at 632–33. Such conduct, we held, was
prejudicial to the administration of justice. Likewise, in Matter of Halpin, 53
N.E.3d 405, 406 (Ind. 2015), a lawyer in a paternity action threatened to file
unfounded disciplinary charges against opposing counsel if counsel did
not consent to a venue change. The lawyer also included ad hominem
attacks against the judge in a motion to the court. Id. Again, we held that
this conduct prejudiced the administration of justice. In contrast,
Blickman’s conduct was miles apart from that in Campanella and Halpin.
During the alleged misconduct here, there was no judicial proceeding, no
court to impede, no judge to defame, and no baseless claim, motion, or
threat of disciplinary action.
Despite these differences, the Court concludes that Blickman’s conduct
was prejudicial, in part, because it might have helped Cox avoid
prosecution or work for another school. Although either outcome would
be undesirable, there is nothing inherently unlawful or automatically
prejudicial to the administration of justice, and the Court cites no
authority for its premise that a proposed confidentiality provision
amounts to either. Instead, the Court simply recites that such conduct is
contrary to “public policy” and “subvert[s] justice.” Ante, at 9.
Yet it takes two to tango. Blickman was not negotiating these terms in
isolation. His counterpart, the family’s lawyer, also sought confidentiality
for his own client and was negotiating settlement terms with Blickman to
effectuate that goal. For reasons known only to the commission, the
family’s lawyer was not the subject of a disciplinary complaint. Unlike
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 25 of 26
Blickman, he was spared the expense and embarrassment of defending his
conduct and professional reputation. If the proposed confidentiality
provision were so clearly at odds with public policy and justice, why
weren’t both lawyers in the commission’s crosshairs? Today’s decision
provides no answer and no clear guidance for lawyers who wish to stay
on the right side of the commission. At the same time, it puts a broad
swath of Indiana’s practicing lawyers, otherwise in good standing and
observing professional norms, at risk of professional sanction.
For these reasons, I respectfully concur in part and dissent in part.
Indiana Supreme Court | Case No. 18S-DI-553 | December 9, 2020 Page 26 of 26