The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
By Samson Habte
An elected prosecutor was reprimanded by the Indiana Supreme Court on Jan. 13 for signing a book deal that got him booted from a high-profile murder case ( In re Henderson , 2017 BL 10651, Ind., No. 22S00-1503-DI-135, 1/13/17 ).
The disciplinary proceedings grew out of Floyd County (Ind.) Prosecutor Keith A. Henderson‘s actions while handling a ripped-from-the-headlines case against a state trooper accused of killing his wife and two small children.
The underlying murder was covered by several national news programs—including ABC’s Good Morning America, NBC’s Dateline and CBS’s 48 Hours—and Henderson was accused of trying to cash in on the notoriety by shopping a true crime book about the case while it was still pending.
The disciplinary proceedings were noteworthy to professional responsibility lawyers because there are few published court opinions addressing one ethics rule Henderson allegedly violated.
That rule—which exists in some form in every U.S. jurisdiction except California—says lawyers can’t negotiate for the media rights to literary or cinematic works based on a case they are handling for a client or a case they have been asked to handle for a prospective client.
Voting unanimously, the Indiana Supreme Court held that Henderson did violate Indiana’s version of that standard, which is identical to ABA Model Rule 1.8(d).
But the court went on to impose a public reprimand in a brief opinion that disappointed bar authorities, who argued for a harsher sanction.
There are few reported disciplinary cases interpreting state versions of Model Rule 1.8(d), and one legal ethics treatise notes that “leading national commentators” give the rule “little or no attention.”
The treatise’s author, William J. Wernz, also wrote that the rule aims to eliminate the “severe conflicts” that can arise when a lawyer acquires the literary or media rights to portrayals of a client’s case before a representation has concluded. Minnesota Legal Ethics 455 (5th ed. 2015).
“A lawyer who foresees financial gain from publicizing a case would have an incentive to make the case sensational, or suspenseful, or to emphasize a client’s colorful but unseemly character traits or behavior,” Wernz wrote.
Henderson, a still-sitting prosecutor who was re-elected after getting hit with a bar grievance, was accused of doing just that while leading the prosecution of David Camm, a former state trooper charged with killing his wife and two small children.
Camm was tried three times. Two guilty verdicts that would have sent him to prison for life were overturned by appeals courts because of the state’s reliance on salacious, irrelevant and prejudicial evidence that portrayed Camm as an adulterer and child molester.
Henderson handled Camm’s second trial but was removed from the case after details of his book deal leaked, prompting the defense to seek his disqualification because of the alleged conflict caused by that publishing contract. See 27 Law. Man. Prof. Conduct 710 .
Camm was then acquitted after a third trial, and he recently agreed to accept $450,000 to settle federal civil rights claims against Henderson and other Floyd County officials involved in his case. Camm also sued the state of Indiana; those claims are still pending.
Camm was charged with violating Rule 1.8(d), which provides:
Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
Henderson’s lawyer, Donald R. Lundberg, told Bloomberg BNA he didn’t think Rule 1.8(d) applied to what his client was accused of doing: negotiating a deal with a third-party publisher, and not a client, to write a book that would be based on the lawyer’s story, not the client’s.
“He didn’t acquire anybody’s media rights; it was his own story,” said Lundberg, who formerly served as Indiana chief bar prosecutor and recently retired from his position as a partner at the Indianapolis-based law firm Barnes and Thornburg LLP.
In addition to Rule 1.8(d), Henderson was charged with breaching Rule 1.7(a)(2) (concurrent conflicts of interest) and Rule 8.4(d) (conduct prejudicial to the administration of justice).
In a 15-page report, a hearing officer said Henderson violated all of those rules.
The hearing officer said Henderson “compromised his independent judgment” and “materially limited [his] ability to represent the state” by negotiating for the book deal while the Camm case was pending. That violated both Rule 1.8(d) and 1.7(a)(2), the officer said.
But the hearing officer’s recommended sanction—a public reprimand—drew objections from bar authorities, who filed a lengthy brief that asked the supreme court to impose a “significantly” harsher sanction.
Voting 4-0, the justices declined that invitation.
Writing for the court, Chief Justice Loretta H. Rush said Henderson engaged in “serious” ethical violations that “adversely affected the administration of justice.”
But because Henderson’s misconduct “occurred in connection with a single, unusual case and is an aberration from what otherwise has been a long and distinguished career as a public servant,” suspension was not warranted, Rush said.
The Indiana Supreme Court Disciplinary Commission was represented by staff attorneys David B. Hughes and Seth T. Pruden, Indianapolis. Lundberg, of Indianapolis, represented Henderson.
To contact the reporter on this story: Samson Habte in Washington, D.C. at email@example.com
To contact the editor responsible for this story: S. Ethan Bowers at firstname.lastname@example.org
Copyright © 2017 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)