Indiana Attorneys Should Be Very Cautious In Cases of Suspected Child Pornography

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 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 parent who receives a prohibited image or a lawyer who receives the 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 preserve the evidence. 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.

Ed Clinton, Jr.

Indiana Reprimands Attorney For Attempting To Silence Student Victim of Sexual Misconduct

The Facts:

“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.

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 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 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 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).

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.”

The Indiana Supreme Court found violations of Rule 1.1 (Competency) and Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice). The discussion follows:

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. 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 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).

Comment: Confidentiality clauses are very common in settlement agreements. What is unusual here is that the clause did not permit any discussion with law enforcement and, apparently, did not permit the student and her family from responding to a lawful subpoena.

In the Matter of Blickman, Indiana Supreme Court, December 9, 2020.