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In re Neary

Supreme Court of Indiana

November 6, 2017

In the Matter of: Robert Neary, Respondent.

         Attorney Discipline Action Hearing Officer Sheila M. Moss.

          ATTORNEYS FOR RESPONDENT Donald R. Lundberg Frank Sullivan, Jr. Indianapolis, Indiana

          ATTORNEYS FOR THE INDIANA SUPREME COURT DISCIPLINARY COMMISSION G. Michael Witte, Executive Director Angie Ordway, Staff Attorney Indianapolis, Indiana

          Per Curiam.

         Attorneys for Respondent Donald R. Lundberg Frank Sullivan, Jr. Indianapolis, Indiana Attorneys for the Indiana Supreme Court Disciplinary Commission G. Michael Witte, Executive Director Angie Ordway, Staff Attorney Indianapolis, Indiana

         We find that Respondent, Robert Neary, committed attorney misconduct by, among other things, eavesdropping on confidential attorney-client communications. For this misconduct, we conclude that Respondent should be suspended for at least four years without automatic reinstatement.

         This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Complaint for Disciplinary Action, " and on the post-hearing briefing by the parties. Respondent's 1999 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See Ind. Const. art. 7, § 4.

         Procedural Background and Facts

         The Commission filed a two-count "Verified Complaint for Disciplinary Action" on December 17, 2015, and later amended that complaint. As set out more fully below, the amended complaint charged Respondent with professional misconduct in connection with his actions in two criminal cases while serving as the chief deputy prosecutor in LaPorte County. Following a hearing, the hearing officer filed her report on April 28, 2017, finding Respondent committed violations as charged and recommending a sanction ranging from a four-year suspension to disbarment.

         Count 1.

         On Friday, March 14, 2014, Brian Taylor was being held in custody at the Michigan City Police Department in connection with a homicide investigation. Attorney David Payne arrived at the station mid-afternoon to meet with Taylor, and Respondent was summoned to the station by the police chief to assist with any issues that might arise. Respondent and detectives escorted Payne to the interview room to meet with Taylor, a detective instructed Payne to flip a toggle switch outside the room "unless you want us listening to your conversation, " and Payne did so. However, the switch merely controlled the recording system and did not disable the audio and video feeds, which were controlled in a separate area in the police station referred to as the "war room."

         After Payne began his meeting with Taylor, Respondent and several detectives gathered in the war room. They did not disable the audio or video feeds, but rather watched and listened to the confidential attorney-client discussion. Ten to twenty minutes into the interview, Taylor and Payne discussed a gun allegedly used in the incident under investigation, and Taylor told Payne where the gun was located. A few minutes after that, the audio in the war room was disabled, the room was cleared, and Respondent instructed the detectives not to recover the weapon. Notwithstanding Respondent's instruction, two detectives proceeded to the site identified by Taylor during his conversation with Payne and recovered a gun.

         Respondent did not initially notify Payne of what had transpired. Three days after Payne's meeting with Taylor, when the police chief learned of the overheard conversation and the subsequent recovery of a gun, the police chief emphasized to Respondent the importance of sharing that information with Taylor's counsel. Respondent then notified counsel of what had happened and self-reported his conduct to the Commission shortly thereafter.[1]

         Coun ...


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