FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Stephen Gerald Gray Donald R. Lundberg, Executive Secretary
Ste. 800, Circle Tower Building Dennis K. McKinney, Staff Attorney
55 Monument Circle 115 West Washington Street, Ste. 1060
Indianapolis, IN 46204 Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 49S00-9801-DI-2
DARREN T. COLE )
IN THE MATTER OF )
) Case No. 49S00-9801-DI-3
SCOTT C. COLE )
November 6, 2000
These attorney disciplinary cases are the product of separate verified complaints for disciplinary
action filed by the Commission alleging misconduct connected with the respondents yellow pages
advertisement for legal services and other attendant misconduct. Pursuant to this Courts order
granting the Commissions subsequent motion to consolidate the actions, the hearing officer appointed
by this Court to hear evidence in these matters conducted a joint evidentiary
hearing on both complaints and now has tendered to this Court his findings
of fact and conclusions of law. Neither the Commission nor the respondents
petitioned for review of the hearing officers report; accordingly, we adopt the factual
findings contained therein and conclude that each respondent engaged in misconduct and that
discipline is warranted.
We now find that Scott Cole was admitted to the bar of this
state in 1994; Darren Cole in 1995. Scott served as a
full-time deputy prosecuting attorney in Johnson County from January 1, 1996, through January
15, 1997. His employment agreement did not prohibit his private practice of
law, to the extent it did not result in a conflict of interest
with his duties as a prosecuting attorney. During certain periods, Darren associated
with him in private law practice.
I. Attorney Advertising Violations
Between August 1996 and December 1996, Scott practiced law with Darren under the
name Cole Law Offices. They took out several advertisements in the 1996
Ameritech Yellow Pages, under the name Cole Law Offices. One advertisement contained
individual color photographs of each. The caption beneath Darrens photo provided, Divorce
and Family Law, Criminal Defense, Drunk Driving/DUI, Juvenile Law, and Bankruptcy. Scotts
photo was accompanied by the notations Prosecutor Johnson County, Tax Law, Insurance Law,
Debt Collections, and Wills & Estates. Another advertisement identified Scott as
Johnson County Prosecutor.
Indiana Professional Conduct Rule 7.1(b) provides:
A lawyer shall not, on behalf of himself, his partner or associate or
any other lawyer affiliated with him or his firm, use, or participate in
the use of, any form of public communication containing a false, fraudulent, misleading,
deceptive, self-laudatory or unfair statement or claim.
Professional Conduct Rule 7.1(c) provides:
Without limitation a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim
includes a statement or claim which:
(1) contains a material misrepresentation of fact;
(2) omits to state any material fact necessary to make the statement, in
the light of all circumstances, not misleading;
(3) is intended or is likely to create an unjustified expectation;
(4) states or implies that a lawyer is a certified or recognized specialist
other than as permitted by Rule 7.4;
(5) is intended or is likely to convey the impression that the lawyer
is in a position to influence improperly any court, tribunal, or other public
body or official;
(6) contains a representation or implication that is likely to cause an ordinary
prudent person to misunderstand or be deceived or fails to contain reasonable warnings
or disclaimers necessary to make a representation of implication not deceptive.
By identifying himself in the Yellow Pages advertisement as Prosecutor of Johnson County
when in fact he was an appointed deputy prosecutor, Scott provided a false,
misleading, and deceptive statement in that it contained a material misrepresentation of fact.
II. Conflict of Interest
Professional Conduct Rule 8.4(c) provides that a lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation. Scott violated that provision by allowing
himself to be identified as the Prosecutor of Johnson County in the advertisement
when in fact he was not the elected prosecutor.
Darren and Scott violated Prof.Cond.R. 8.4(d), which prohibits conduct prejudicial to the administration
of justice, by suggesting in the advertisement that, due to Scotts identification as
the Johnson County Prosecutor, employing the Cole Law Offices to defend criminal matters
could result in more favorable treatment by the state in its prosecution.
On June 14, 1996, Darren appeared as counsel for a defendant charged with
juvenile delinquency. Darren appeared in court in connection with that matter on
August 12, 1996. On August 26, 1996, Darren again appeared in court
representing the defendant during a dispositional hearing in the juvenile delinquency case.
On August 13, 1996, Darren became a deputy prosecuting attorney in Tippecanoe County,
was sworn into that position during February 1997, and held the position through
March 31, 1998.
As a deputy prosecutor of Tippecanoe County, Darren served a public trust to
enforce the law. Matter of Moore, 453 N.E.2d 971, 974 (Ind. 1983).
The state is entitled to a prosecutors undivided loyalty. Matter of
Davis, 471 N.E.2d 280 (Ind. 1984). For example, the requirement of
loyalty to a particular client prohibits a part-time prosecutor or deputy prosecutor from
defending in this state persons charged with crimes. See, e.g., Indiana
State Bar Association, Legal Ethics Subcommittee, Op. 2 (1972); Op. 1 (1977); Op.
6 (1978); Op. 6 (1985). See also Richard H. Underwood, Part-time Prosecutors
and Conflicts of Interest: A Survey and Some Proposals, 81 Ky.L.J. 1,
37-39 (1992-3). In the delinquency case, the state of Indiana, the respondents
own client while he served as a deputy prosecuting attorney, was the adverse
party. As such, his representation of a defendant in the delinquency case
while serving as a deputy prosecutor violated Prof.Cond.R. 1.7.
III. Response to Commission Inquiry
On November 25, 1996, the Commission filed a grievance against Darren, referring to
the possibility of a conflict of interest due to the Cole Law Office
advertisement which identified Scott as a prosecutor and the offices acceptance of Criminal
Defense and Drunk Driving/DUI cases. In response to notification of the
grievance, Darren stated that the only cases in which he had been involved
that even closely resembled criminal or infraction cases were the juvenile case and
a restricted license case (see footnote 2, infra). He added: Both
cases were resolved well before the advertisement came out and before I was
sworn in as a Tippecanoe County Deputy Prosecutor. In fact, Darren was
attorney of record in both cases after he began work as a deputy
prosecutor for Tippecanoe County, despite the fact that he was not formally sworn
in as a deputy prosecutor until February 1997.
Professional Conduct Rule 8.1(b) provides that an attorney shall not fail to disclose
facts necessary to correct a misapprehension known by him to have arisen in
connection with a disciplinary matter. By failing to advise the Commission that
he actually began work as a Tippecanoe County deputy prosecutor on August 13,
1996, prior to his formal swearing in, and disclosing only that both cases
were resolved well before he was sworn in, Darren violate the rule.
IV. Practicing Law While on Inactive Status
Darren filed an Exemption Affidavit with the Clerk of the Supreme Court of
Indiana on February 21, 1996, stating that he would not engage in the
practice of law in Indiana and that he would not hold any judicial
office. He requested exemption from payment of the required annual registration and
continuing legal education fees and from the continuing legal education requirements. See
Ind.Admission and Discipline Rule 23(21)(b)(2). On December 23, 1996, Darren notified the
Clerk that he desired to return to active status, and paid the required
registration fee. During the interim, Darren represented clients, associated in a law
practice with his brother, and even accepted employment as a deputy prosecutor.
By so doing, he violated Prof.Cond.R. 5.5(a) by practicing law in a
jurisdiction where doing so violated the regulation of the legal profession in that
Having found misconduct, we must now assess appropriate discipline. In so doing,
we consider the nature of the misconduct and any mitigating or aggravating factors.
We also examine the facts surrounding the misconduct, the respondents states of
mind, the duties which were violated, the actual or potential injury to clients,
and the risk to the public. Matter of Drozda, 653 N.E.2d 991
(Ind. 1995). The hearing officer recommended a 30 day suspension for Darren
and a public reprimand for Scott.
Scotts transgressions consisted of knowing false lawyer advertising. For first
offenses, advertising violations have usually resulted in private reprimands.
See, e.g., Matter
of Anonymous, 689 N.E.2d 434 (Ind. 1997) (advertisement that identified lawyer as specialist
where lawyer not certified as such). Given the circumstances attendant to Scotts
misconduct, we conclude that a public reprimand is appropriate. Darrens transgressions were more
numerous and, because they included a disingenuous response to the Commission and his
failure to abide by licensing requirements, require a more stringent sanction. Accordingly, we
conclude that a thirty-day suspension is appropriate.
It is, therefore, ordered that Scott C. Cole is hereby reprimanded and admonished
for the misconduct set forth herein.
It is ordered further that Darren T. Cole be suspended from the practice
of law in this state for a period of thirty (30) days, beginning
December 18, 2000, at the conclusion of which he shall be automatically reinstated.
The Clerk of this Court is directed to provide notice of this order
in accordance with Admis.Disc. R. 23(3)(d) and to provide the clerk of the
United States Court of Appeals for the Seventh Circuit, the clerk of each
of the Federal District Courts in this state, and the clerk of the
United States Bankruptcy Court in this state with the last known address of
respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against respondent.
Indiana Professional Conduct Rule 1.7 provides:
(a) A lawyer shall not represent a client if the representation of that
client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship
with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's responsibilities to another client or
to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected;
(2) the client consents after consultation. When representation of multiple clients in
a single matter is undertaken, the consultation shall include explanation of the implications
of the common representation and the advantages and risks involved.
We note that in its charges, the Commission alleges that Darrens defense of
the alleged delinquent violated Prof.Cond.R. 1.10(a), which imputes Scotts Prof.Cond.R. 1.7 conflict of
interest (due to his capacity as a deputy prosecutor) to Darren based on
their private law practice association. We find such a violation, but also
find Darrens direct conflict described above.
On August 12, 1996, Darren filed a petition in Hendricks Circuit Court
to establish a restricted drivers license on behalf of a client he represented
privately. Statute requires the prosecuting attorney of the county where the petitioner resides
be named as a defendant. Darren named the prosecuting attorney of Hendricks
County as a defendant in the case, along with the county sheriff and
the commissioner of the Indiana Bureau of Motor Vehicles. On August
26, 1996, Darren appeared in court representing the petitioner seeking a restricted drivers
The Commission charged, and the hearing officer found, that by representing the client
while serving as a deputy prosecutor, Darren violated Prof.Cond.R. 1.8(k), which prohibits a
part-time prosecutor or part-time deputy prosecutor authorized by statute to otherwise engage in
the practice of law from representing a private client in any matter wherein
exists an issue upon which said prosecutor has statutory prosecutorial authority or responsibilities.
Indiana Code Section 9-24-15-4 provides that a verified petition for issuance
of a restricted drivers license because of hardship must be filed in the
circuit court of the county in which the petitioner resides, and that the
prosecuting attorney of that county shall appear and be heard by the court
in the petition. Since the office of the prosecuting attorney of Tippecanoe
County had no statutory prosecutorial responsibility in the non-criminal hardship license case pending
in Hendricks County, we conclude that under the specific language of Prof.Cond.R. 1.8(k)
no violation occurred. However, based on the analysis pertaining to the respondents
representation of the alleged delinquent, Darrens representation of the petitioner may have violated
Prof.Cond.R. 1.7, had such a violation