Indiana has a statute that prohibits child exploitation and the possession of child pornography. Burns Ind. Code Annotated § 35-42-4-4. As illustrated by the In the Matter of Blickman case, (Indiana Supreme Court December 9, 2020), the statute poses a serious danger to attorneys. Blickman represented a school where a teacher became involved with a student. The student’s parents discovered pornographic images and reported the conduct to the school. Blickman made copies of the images to preserve evidence. His reward for this appropriate action was that he was charged with possession of child pornography. The Hearing Officer did not uphold the charge and the Indiana Supreme Court affirmed that finding. The opinion discloses a rather serious problem for the Indiana attorney who practices in good faith. The problem is that the statute does not contain an exception for the preservation of evidence or even for the transmission of evidence to law enforcement. The Indiana Supreme Court recognized this problem and decided the case correctly, but ducked the more serious issues it raises for the attorney-client relationship.
The discussion was as follows:
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 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 this regard derives from this incompetence, and not from any criminality, does not excuse his poor handling of these materials.
Comment: the Indiana Supreme Court recognizes the problem with the statute – it criminalizes innocent conduct by a lawyer who receives a prohibited image from a client. Since Indiana has decided to interpret the statute in this manner, a lawyer is put in a very difficult situation. The lawyer must not reveal a confidence or harm a client. The lawyer must also not take possession of the prohibited images. The lawyer confronted with such a difficult situation should first consider who is the client and then make sure not to reveal any confidential information. The lawyer should decline to “preserve” or “possess” the images and should instruct the client to turn the images over to law enforcement. (There is a big “unless” here. If the client would be criminally charged, the lawyer cannot turn over the images for to do so would be to reveal a confidence to the detriment of the client). Given the murky condition of the law and the lack of any safe harbor for good faith actions, criminal lawyers and lawyers for school districts are placed in an almost impossible situation. A test case filed in federal court is warranted because the law makes it impossible for a lawyer to do her job and denies a citizen of Indiana his right to counsel. It would be even better if the statute were amended to allow a parent or lawyer to act in good faith.
Ed Clinton, Jr.