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In re Welke

Supreme Court of Indiana

September 10, 2019

In the Matter of Brent Welke, Respondent.

         Attorney Discipline Action Hearing Officer Heather A. Welch

          ATTORNEYS FOR RESPONDENT Dina M. Cox Neal Bowling Kelly H. Eddy Indianapolis, Indiana

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


          PER CURIAM.

         We find that Respondent, Brent Welke, committed attorney misconduct by incompetently representing a client, improperly using a nonlawyer assistant, and knowingly making false statements of material fact to the Commission. For this misconduct, we conclude that Respondent should be suspended for at least three 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 disciplinary complaint, and on the post-hearing briefing by the parties. Respondent's 1991 admission to this state's bar subjects him to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.

         Procedural Background and Facts

         In 2010 "Client" was charged with murder after fatally stabbing a man. Client, whose English language skills were extremely poor, maintained he acted in self-defense. An experienced public defender initially represented Client, assisted by an interpreter. As the trial date approached, the public defender and deputy prosecutor were negotiating a plea deal that contemplated a plea to voluntary manslaughter and either a fixed or maximum sentence of 30 years. The public defender believed that Client would be unable to prevail on a self-defense argument but that he had a compelling case in mitigation.

         During this time, Respondent's nonlawyer assistant, Joseph Everroad, ingratiated himself with Client's family, told them the public defender would "sell out" Client, and - together with Respondent - persuaded them that Respondent and Everroad could either successfully pursue a self-defense argument at trial or otherwise obtain a better plea deal for Client.[1] Client's family hired Respondent and paid him a $6, 000 retainer, $1, 000 of which was earmarked for an interpreter. The trial date was continued following Client's change in representation.

         Respondent had not previously handled a murder case and had little or no experience with major felonies. Neither Respondent nor Everroad had the language fluency to effectively communicate with Client about his case. Respondent did not hire an interpreter. Respondent did not meet with Client at the jail and did little or no work on the case, instead delegating these tasks to Everroad. During one meeting with Client, Everroad brought an untrained and unpaid woman who needed community service credit for her own criminal conviction to serve as an interpreter, and through that woman Everroad attempted to assure Client he had a strong self-defense case. Everroad did not bring an interpreter to other meetings with Client. Everroad explained the purpose of these meetings was simply to "just keep [Client] happy so [Respondent] could get the rest of his money out of the client" and added "we didn't even talk about the case. We were talking about other things. Cars - things like that." (Tr. at 94, 97).

         Shortly before the trial date, Respondent viewed post-mortem photographs of the victim for the first time and came to believe a self-defense or voluntary manslaughter strategy at trial would be untenable. At a final pretrial conference, the State offered a plea to voluntary manslaughter with a fixed sentence of 40 years. Respondent attempted to accept the offer without consulting with Client, but after Client complained, the court indicated the matter would proceed to trial.

         Trial commenced three days later, on April 11, 2011. Respondent was not adequately prepared and did not have a defense interpreter on hand to communicate with Client. During a recess, using Client's friend as an interpreter, Respondent communicated the State's latest offer (a plea to murder with a fixed term of 45 years) to Client and advised Client to take the deal because his defense was weak. Client accepted the offer and pled guilty to murder with a fixed sentence of 45 years.[2]

         During the Commission's investigation, Respondent falsely told the Commission that Client was fluent in English and that he had visited Client in jail several times.

         The Commission charged Respondent with violating Indiana Professional Conduct Rules 1.1, 1.3, 1.4(a)(2), 1.4(b), 5.3(b), and 8.1(a). At the final hearing in this matter, Respondent contested only the Rule 8.1(a) charge (involving dishonesty toward the Commission) and admitted the remaining charges. The hearing officer filed her report to this Court on April 29, 2019, finding ...

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