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By Samson Habte
The Indiana Supreme Court July 17 disbarred a lawyer who published a book that spilled secrets about a former client and romantic partner who used to be a high-ranking political official (In re Smith, Ind., No. 29S00-1201-DI-8, 7/17/13).
Most of the ethics infractions the court found were based on what attorney Joseph Stork Smith wrote in the book, which the per curiam opinion describes as a work “purporting to be a true autobiographical account of [Smith's] relationship from roughly 1990 through 2010 with a former client ('FC'), who was active in politics and at one point held a high-level job in the federal government.”
The court found that Smith breached Indiana Rules of Professional Conduct 1.9(c)(1) and 1.9(c)(2) by disclosing details that he learned from his representation of the client in “several criminal cases” and a divorce matter.
It further held that Smith ran afoul of Rule 1.7 by having a sexual relationship with the client and advancing loans to her without considering whether doing so “would materially limit his ability to represent her professionally.”
Those and other violations necessitate Smith's disbarment, the court concluded.
In making that ruling, the court noted findings that Smith's breaches of confidentiality were committed “with the intent to benefit” him financially, and that his conduct “was not impulsive or sudden” but was instead “planned and executed over an extended period of time.”
The court did not identify Smith's book or his former client. When BNA contacted Smith July 23, he declined to confirm whether the disciplinary matter was related to a book that he wrote entitled Rove-ing Her Way to the White House: Machiavelli's Sexy Twin Sister.
That book is listed on amazon.com but is not available for purchase. The opinion notes that Smith “ceased efforts to sell” the book at issue in this matter after he was served with a disciplinary complaint.
A subtitle of the book listed online reads: “How to Lie and Steal Your Way into Full Security Clearance at the White House.”
In the disciplinary proceeding, the court noted, Smith defended some of his disclosures by stating that he “believed FC had provided false information about her criminal history and other matters to get her job with the federal government.”
Smith told BNA he could not comment until the court's disbarment order takes effect next month. He added that the filings in the matter had been sealed.
The Indiana Supreme Court Disciplinary Commission filed a complaint against Smith in January 2012. A hearing officer concluded that Smith violated numerous ethics standards:
• Rule 1.7 by representing FC without obtaining her informed consent regarding a concurrent conflict of interest caused by their personal relationship;
• Rule 1.9(c) by improperly revealing in his book information gleaned from FC's representation, and by using that information to her disadvantage;
• Rule 7.1, by making a false or misleading communication about his services in the book;
• Rule 8.4(c), by making knowingly false statements in the book; and
• Rule 8.4(e), by implying in his book an ability to influence a government official improperly.
Neither party challenged the hearing officer's report and the court thus adopted those findings and reserved judgment as to misconduct and sanctions.
According to the court, the Rule 1.9 charge was based on portions of Smith's book that described several criminal cases and “revealed such details as his negotiations regarding bail and plea agreements, conversations with a police detective,” and details about “FC's mental and physical state” and his “personal thoughts about FC and about the matters.”
That count was also based on Smith's revelations of “details about FC's marriage” that he acquired after he was retained to review a divorce agreement, the court said. That portion of the book similarly discusses Smith's “personal opinions and thoughts about FC's conduct,” the court said.
Smith claimed that FC consented to those disclosures, but the court dismissed that contention. It also rejected Smith's argument that the disclosures were permissible under Rule 1.6(b)(3), which states:
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary … to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services.
Smith said the rule was implicated because he believed FC had provided false information about her criminal history and other matters to get her job with the federal government.
In dismissing this argument, the court said there was no evidence that “any document was falsified by FC” or that “FC's employer relied on a false or misleading security application.”
“In addition, [Smith's] disclosure of the alleged fraud years after FC left her employment would not serve to 'rectify' or 'mitigate' the alleged fraud,” the court declared. Rather, it said, Smith's purpose in marketing the book appears to have stemmed from his “desire to recoup financial losses allegedly caused by FC rather than to prevent, mitigate or rectify her alleged fraud.”
Many of the remaining findings were also based on ethics breaches tied to passages in Smith's book.
For example, the court said, the book included an anecdote in which Smith discussed bailing FC out of jail by “dropp[ing] the names” of certain public officials and judges with whom Smith was friendly. That conduct, the court held, constituted a violation of Rule 8.4(e), under which lawyers must not “state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.”
Additionally, the court held that Smith breached Rule 8.4(c) by making knowingly false statements in the book regarding a conversation with a leader of a state political party during a time when FC was employed as a party fund-raiser.
“Respondent stated, among other things, that the leader told him that FC had lied regarding political contributions she had claimed to receive and that the leader hired FC due to fear that she would make unfounded accusations against him,” the court explained. The leader testified at a hearing and denied making these statements to Smith, the court said.
Another self-inflicted wound was found in a biographical blurb in which Smith described himself as a “Certified Domestic Law Mediator.” However, there is no “certification” provision in the Indiana rules governing continuing legal education, the court noted. Mediators may be registered, it said, but Smith had never registered or acted as a mediator in his career. Accordingly, the court said, Smith's statement breached Rule 7.1, which governs misleading assertions about a lawyer's qualifications.
(1) Respondent improperly revealed information about a former client for self-serving reasons; (2) Respondent engaged in multiple offenses; (3) Respondent testified falsely in this disciplinary matter; (4) Respondent refused to acknowledge the wrongfulness of his conduct; (5) Respondent had been a lawyer for approximately 35 years when he published the book and thus knew or should have known his obligations regarding safeguarding client information; and (6) Respondent's conduct in revealing information about his former client's legal matters was not an impulsive or sudden act; rather, it was planned and executed over an extended period of time.
Two facts were found in mitigation: Smith had no prior discipline, and he ceased efforts to sell the book after being served with a complaint.
In light of Smith's conduct and the aggravating factors, the court said, disbarment is warranted.
“In the book, Respondent revealed personal and sensitive information about FC that was obtained in confidence as her attorney, and its revelation had the potential of causing her public embarrassment and other injury, such as impairment of her employment opportunities,” the opinion states. “Respondent's selfish motivation in deliberately attempting to reveal this confidential information to a wide audience for monetary gain, his false statements in the book and in this disciplinary matter, and his lack of any remorse lead us to conclude that disbarment is appropriate for Respondent's misconduct.”
Penny L. Carey, Fishers, Ind., represented Smith.
The disciplinary commission was represented by Executive Secretary G. Michael Witte, Staff Attorney Seth T. Pruden, and Staff Attorney John P. Higgins, Indianapolis.
Copyright 2013, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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