ATTORNEYS FOR RELATOR                                      ATTORNEYS FOR RESPONDENT
G. Michael Witte, Executive Director                       Mary Nold Larimore
Angie L. Ordway, Staff Attorney                            Erin A. Webley
Indiana Supreme Court Disciplinary Commission              Indianapolis, Indiana
Indianapolis, Indiana

______________________________________________________________________________

                                                In the                        FILED
                                                                         Nov 30 2012, 9:34 am
                             Indiana Supreme Court
                                                                                 CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                            _________________________________                        tax court




                                    No. 94S00-1103-MS-165


STATE OF INDIANA EX REL.
INDIANA SUPREME COURT DISCIPLINARY COMMISSION,

                                                                   Relator,
                                                  v.

DEREK A. FARMER,
                                                                   Respondent.

                            _________________________________

                      On Petition To Enjoin Unauthorized Practice Of Law
                           _________________________________

                                       November 30, 2012

Per Curiam.


       The Indiana Supreme Court Disciplinary Commission (“Commission”) brings this
original action in the name of the State of Indiana pursuant to Indiana Admission and Discipline
Rule 24. The Commission alleges that Respondent Derek A. Farmer (“Farmer”) engaged in the
unauthorized practice of law in Indiana, and it seeks an order from this Court enjoining him from
practicing law here. This Court has original jurisdiction over matters involving the unauthorized
practice of law. See IND. CONST. art. 7, § 4.
                                    Procedural Background
       On March 22, 2011, the Commission filed a verified petition alleging that Farmer
engaged in the unauthorized practice of law. The petition asks that Farmer “be permanently
enjoined from engaging in the practice of law and soliciting clients in the State of Indiana[.]”
(Verified Petition (“Pet.”) at 6.) Farmer filed a verified return to the petition and later amended
his return. Farmer denied many of the allegations in the verified petition and opposed issuance
of the injunction. The Court appointed Leslie C. Shively to serve as Commissioner to hear the
evidence and report his findings of fact to the Court. After conducting an evidentiary hearing,
the Commissioner filed his report with findings of fact. Later, this Court received legal briefs
from the parties and heard oral argument.


                                              Facts
       John Ivy (“Ivy”) was convicted and sentenced to sixty-five years for murder in Delaware
County, Indiana. See Ivy v. State, 715 N.E.2d 408 (Ind. 1999). Thereafter, and at all relevant
times, Ivy has been imprisoned in Indiana. In April 2000, Ivy, pro se, filed a petition for post-
conviction relief. On May 30, 2000, a Deputy State Public Defender entered her appearance
along with a “verified notice of present inability to investigate and motion for continuance.”
(Appendix (“App.”) at 91-93.)       The trial court granted the requested continuance.         The
chronological case summary shows no further activities in the post-conviction case until the
Deputy State Public Defender was granted leave to withdraw her appearance on April 7, 2005.
(App. at 93.)


       Meanwhile, Ivy and his grandparents, Eddie and Laverne Ivy, Ohio residents, hired an
Ohio attorney, Farmer, to provide legal work on Ivy’s case as described below. Farmer was
admitted to practice law in Ohio in 1999 and, at all relevant times, has maintained an office in
Ohio. Farmer had represented Eddie formerly on an unrelated matter.        Farmer has never been
licensed to practice law in Indiana, although he was admitted to practice in Indiana temporarily
in connection with another client’s criminal case in Marion County in 2002-03.


       Ivy signed a legal services engagement letter dated June 10, 2002, in which Farmer
agreed, in exchange for a non-refundable payment of $1,000, to conduct a preliminary


                                                2
investigation of Ivy’s case, including an interview with Ivy, review of court documents, and legal
research. The letter explained that after the preliminary review, Ivy would be “given his . . .
legal options.” (App. at 99.) It stated that if Farmer felt there were “viable legal avenues and
the client wishes to continue,” Ivy would be provided a letter explaining the scope of Farmer’s
“full representation” and quoting a fee for such representation. (App. at 99.)          In June 2002,
Farmer met with Ivy in prison and reviewed certain court records made available by Laverne.


       On July 1, 2002, Farmer sent Ivy a letter, with a copy to Ivy’s grandparents. That letter
stated Farmer’s fee for full representation was $25,000, plus expenses. The letter explained what
Farmer intended to do to assist Ivy as part of full representation, including speaking to witnesses
and reviewing reports. The letter indicated that the primary hopes for obtaining relief would be
obtaining new evidence and showing that the prosecutor knew some of the witnesses at trial were
lying. In the letter, Farmer added, “I believe that we may be able to amend the post-conviction
motion that you have pending.” (App. at 102.)1


       Thereafter, the Ivys all agreed that Farmer would be paid $25,000, plus expenses, in
exchange for him working on Ivy’s case. At some time prior to October 31, 2003, the Ivys made
an initial payment of $5,000. On October 31, 2003, or shortly thereafter, Farmer, Ivy, and Ivy’s
grandparents all signed an Engagement Agreement. It stated that the grandparents were agreeing
to pay Farmer a flat fee of $25,000 – of which $5,000 had already been paid – to represent Ivy
“with respect to post-conviction work[, m]ainly to ascertain evidence and information that may
lead to [Ivy’s] current conviction being vacated.” (App. at 119.) The agreement stated that the
grandparents would be billed periodically for the remainder of the flat fee. The grandparents
made several payments toward the flat fee, ultimately paying Farmer a total of approximately
$20,000.


       After the Engagement Agreement, Farmer took the following actions. He met with Ivy
again in prison in December 2003. On December 31, 2003, he drove to Muncie, Indiana, and


1
  Because Ivy had a post-conviction petition pending in Delaware County, Indiana, when Farmer provided
legal services to Ivy, Farmer’s counsel’s repeated references to “a potential proceeding” or “potential
PCR motion” in Ivy’s case are, at a minimum, confusing. (See, e.g., Respondent’s Br. at 8, 16, 18.)


                                                  3
copied some court records. In January and March 2004, he drove to Muncie to review trial
exhibits, and he met with Ivy’s trial attorney in March 2004. In July 2004, he met with Ivy again
in prison. Sometime before March 2005, Farmer went to an Indiana prison to talk with Ivy’s co-
defendant, but that meeting was cut short when Farmer learned the co-defendant was represented
by counsel.    In March 2005, Farmer traveled to Muncie and met and talked with the co-
defendant’s attorney, and the two visited the murder scene. Later, Farmer made another trip to
northern Indiana to interview the co-defendant.


        As the result of grievances filed in Ohio by former clients, a disciplinary complaint was
filed against Farmer in Ohio by December 9, 2004. That complaint led to a decision issued on
November 1, 2006, suspending Farmer’s license to practice law in Ohio from November 1, 2006,
until April 1, 2008. Thereafter, Farmer was on probation in Ohio from April 1, 2008, to June 5,
2009.


        Soon after being suspended, Farmer sent letters to Ivy and Eddie (Laverne had passed
away by then) advising them of the suspension and suggesting that they find another attorney.
Eddie advised Farmer that he still wanted Farmer to obtain an affidavit from a witness in Muncie
as they had earlier planned. After the Ivys located that witness, Farmer and Eddie drove toward
Muncie for the purpose of talking to that witness and collecting an affidavit from her. But
Farmer and Eddie learned in transit through a telephone call that the witness was not available,
and so they cut short their trip. (App. at 22.)


        After Farmer’s suspension ended in April 1, 2008, Farmer and Eddie discussed whether
Farmer should resume work on Ivy’s case. In June 2008, Farmer and Eddie met with Ivy in
prison to discuss the matter. At that meeting, Farmer and Ivy agreed that Farmer would continue
work on the case on a pro bono basis. (App. at 23, 235.) However, sometime in early 2009, Ivy
filed a grievance against Farmer with the Ohio Supreme Court Disciplinary Counsel, prompting
Farmer to terminate their agreement.2


2
  The Ohio Supreme Court Disciplinary Counsel (“Ohio Counsel”) eventually dismissed Ivy’s grievance.
In the dismissal letter, Ohio Counsel rejected Ivy’s claim that Farmer had done “nothing” for Ivy and
stated that Farmer had done a “considerable amount” of work on Ivy’s behalf. (App. at 202.) When the
Indiana Supreme Court Disciplinary Commission later inquired, Ohio Counsel responded, “With respect

                                                  4
          At no time during his post-conviction work for Ivy did Farmer apply for temporary (“pro
hac vice”) admission in connection with Ivy’s pending post-conviction relief petition.3


          Other relevant facts are discussed below.


                                                   Discussion


          “Original actions . . . to restrain or enjoin the unauthorized practice of law in this state
may be brought in this court by the attorney general, the Indiana Supreme Court Disciplinary
Commission, and the Indiana State Bar Association or any duly authorized committee thereof,
without leave of court . . . .” Admis. Disc. R. 24. “The purpose of a proceeding under
Admission and Discipline Rule 24 is not to find fault or assess liability but to protect the public
from those not properly licensed or otherwise qualified to act as attorneys.” State ex rel. Indiana
State Bar Ass’n v. Northouse, 848 N.E.2d 668, 674 (Ind. 2006).


          An action to enjoin the unauthorized practice of law “shall charge specifically the acts
constituting the unauthorized practice.” Admis. Disc. R. 24. Here, after setting forth factual
background information, the Commission’s verified petition alleged specifically:


               ACTS CONSTITUTING THE UNAUTHORIZED PRACTICE OF LAW

              41. Farmer engaged in the unauthorized practice of law when, not being
              admitted to practice law in the State of Indiana, he provided legal services to an
              Indiana inmate regarding an Indiana legal matter for a period of approximately
              three (3) years.

              42. Farmer further engaged in the unauthorized practice of law when, while
              suspended from the practice of law in Ohio, he traveled to Indiana for the
              purpose of interviewing and collecting an affidavit from a witness.

(Pet. at 5 (bold emphasis in original).)


to the licensing issue, we believe that Attorney Farmer’s actions fall within Rule 5.5 since he was
engaging in an investigation and non-litigation activity.” (App. at 206.) Indiana’s version of Professional
Conduct Rule 5.5 is discussed below.
3
    See Ind. Admission and Discipline Rule 3(2).

                                                       5
        The Court examines the Commission’s claims in each of these two paragraphs,
considering the evidence in light of the Commission’s burden of proof. See State ex rel. Ind.
State Bar Ass’n v. Diaz, 838 N.E.2d 433, 438 (Ind. 2005) (adopting commissioner’s findings of
fact where supported by clear and convincing evidence). Here, the parties agree that the
Commission bears the burden of proof by clear and convincing evidence. (Respondent’s Br. at
1, 8; Ind. Sup. Ct. Oral Argument Tr. at 50:01-50:07.) Accordingly, the Court applies that
burden of proof here.


        The “clear and convincing” standard is an intermediate standard of proof that lies
between the “preponderance of the evidence” standard used in most civil proceedings and the
“beyond a reasonable doubt” standard required to find guilt in criminal prosecutions. See J.C.C.
v. State, 897 N.E.2d 931, 934 (Ind. 2008). Clear and convincing proof is a standard frequently
imposed in civil cases where the wisdom of experience has demonstrated the need for greater
certainty. Id. at 935; Carnahan v. Moriah Property Owners Ass'n, Inc., 716 N.E.2d 437, 443
(Ind. 1999).


A.      Paragraph 41: The Three-Year Period


        The Commission alleged in Paragraph 41 of its verified petition that Farmer engaged in
the unauthorized practice of law when he provided post-conviction legal services to Ivy for a
period of approximately three years without being admitted to practice law in Indiana. That
paragraph does not specify exactly to which three-year period the Commission is referring.
However, it may be gleaned from the other parts of the verified petition and from the
Commission’s brief that the Commission is referring to the roughly three-year period between
the Engagement Agreement and the beginning of the Ohio suspension.4


4
 See Relator’s Br. at 4 (“For three years, from October 2003 to October 2006, [Farmer] provided legal
services to Ivy relating to his pending post-conviction relief matter[.]”); see also Pet. at 2 (“In or about
October 2003, . . . the Ivys . . . retained Farmer to review the record in Ivy’s case and attempt to find
evidence to support legal claims to help Ivy.”). At oral argument, the Commission stated that Farmer
engaged in unauthorized practice of law in Indiana before, during, and after his Ohio suspension, but it
does not appear that unauthorized practice after his Ohio suspension was charged specifically in the
verified petition. See Pet. at 5. In any event, the Court’s analysis for the period after the suspension
would not differ materially from the analysis for the three-year period before his Ohio suspension.


                                                     6
       The Commission claimed that Farmer’s conduct before his suspension amounted to
unauthorized practice of law because he did not apply to be admitted on a temporary basis under
Indiana Admission and Discipline Rule 3(2) and he was not otherwise authorized to practice law
under the standard set out in Indiana Rule of Professional Conduct 5.5(c)(2). The latter rule
provides:
            (c) A lawyer admitted in another United States jurisdiction, and not disbarred or
            suspended from practice in any jurisdiction, may provide legal services on a
            temporary basis in this jurisdiction that: . . . .

               (2) are in or reasonably related to a pending or potential proceeding before a
               tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer
               is assisting, is authorized by law or order to appear in such proceeding or
               reasonably expects to be so authorized[.]

Prof. Cond. R. 5.5(c)(2) (West 2012) (emphasis added).5


       The accompanying commentary restates the rule and provides a few illustrative examples
of permissible conduct:
            Paragraph (c)(2) . . . provides that a lawyer rendering services in this
            jurisdiction on a temporary basis does not violate this Rule when the lawyer
            engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in
            which the lawyer is authorized to practice law or in which the lawyer reasonably
            expects to be admitted pro hac vice. Examples of such conduct include
            meetings with the client, interviews of potential witnesses, and the review of
            documents. . . . .

Prof. Cond. R. 5.5(c)(2), cmt. 10.


       The Commission contends that Professional Conduct Rule 5.5(c)(2) does not authorize
Farmer’s conduct because providing legal services for three years is not “temporary.” “Services
may be ‘temporary’ even though the lawyer provides services in this jurisdiction on a recurring
basis, or for an extended period of time, as when the lawyer is representing a client in a single
lengthy negotiation or litigation.”     Prof. Cond. R. 5.5(c)(2), cmt. 6; see American Bar
Association, Annotated Model Rules of Professional Conduct, Rule 5.5, at 465 (6th ed. 2007)

5
  This language was added to Professional Conduct Rule 5.5 by an order dated September 30, 2004,
became effective January 1, 2005, and amended the language of the earlier version of the Rule 5.5.
Because the Commission and Farmer both invite the Court to analyze Farmer’s conduct under the
standard set out in the language of this current version of the rule, the Court does so here.

                                                 7
(commenting that Rule 5.5 does not specify the number of visits a lawyer may make to another
jurisdiction or any other bright-line test to determine when a lawyer’s presence is “‘temporary’
rather than permanent” and noting that a report to the House of Delegates stated that application
of the rule’s standards “leaves room for individual opinion and judicial interpretation.”).


        Here, the charged conduct of Farmer involves occasional visits to Indiana for a single
client in a single legal matter, not multiple matters or clients or any systematic or continuous
presence in Indiana. Under these circumstances, the Court concludes that the Commission has
failed to prove by clear and convincing evidence that Farmer’s provision of legal service to Ivy
was more than “temporary.”


        The Commission’s other argument with regard to this phase is that Farmer could not have
reasonably expected to be authorized to appear in Ivy’s post-conviction case because, at least
beginning in December 2004, “Farmer had no reasonable belief that he could gain temporary
admission to practice in the State of Indiana due to a pending disciplinary proceeding in Ohio.”
(Pet. at 5; see Relator’s Br. at 8.)


        This argument, too, fails. A temporary admission of an out-of-state lawyer pursuant to
Admission and Discipline Rule 3(2) is within the discretion of the trial court. Matter of Fieger,
887 N.E.2d 87, 90 (Ind. 2008).         Nothing in this temporary admission rule per se disqualified
Farmer from seeking admission in Ivy’s post-conviction case simply because a disciplinary
proceeding was pending against Farmer in Ohio. See Admis. Disc. Rule 3(2)(a)(4)(v) (listing
requirements for seeking temporary admission to appear in an Indiana case or proceeding,
including stating “[t]hat no disciplinary proceeding is presently pending against the attorney in
any jurisdiction; or, if any proceeding is pending, the petition shall specify the jurisdiction, the
charges and the address of the disciplinary authority investigating the charges.” (emphasis
added)).


        Here, Farmer testified that he understood Admission and Discipline Rule 3(2) to mean
that a pending disciplinary complaint in Ohio would not have precluded him from seeking, or an
Indiana court from granting, temporary admission. (Tr. at 310.) Other evidence showed that



                                                   8
Farmer had been admitted to practice law in Ohio in 1999.              He had been admitted on a
temporary basis in another Indiana case fairly recently, in 2002-03. In the present proceeding, a
federal judge and an attorney in Ohio who testified regarding Farmer’s good character and
competence as an attorney stated that they would have provided an affidavit supporting Farmer’s
request for temporary admission in Indiana if he had made one before or after his Ohio
suspension.


       Under these circumstances and in light of the discretion exercised by trial courts in ruling
on motions for temporary admission under Admission and Discipline Rule 3(2), the Court
concludes that the Commission has failed to prove by clear and convincing evidence that, due to
the pending disciplinary proceeding in Ohio, Farmer could not have reasonably expected to be
authorized to appear in Ivy’s post-conviction case at some time in the future.


B.     Paragraph 42: The Ohio-Suspension Period


       The Commission has failed to prove that Farmer engaged in the unauthorized practice of
law during his suspension by traveling to Indiana for the purpose of interviewing and collecting
an affidavit from a witness as alleged in Paragraph 42 of the Commission’s petition.


       As the Commissioner noted in his findings of fact, there was no evidence that Farmer and
Eddie entered into Indiana on that occasion. More importantly perhaps, there was no evidence
that Farmer actually interviewed the witness or collected her affidavit. It is the province of this
Court to determine what acts constitute the practice of law. Matter of Contempt of Mittower,
693 N.E.2d 555, 558 (Ind. 1998); see Matter of Patterson, 907 N.E.2d 970, 971 (Ind. 2009)
(noting that while this Court has not attempted to provide a comprehensive definition of what
constitutes the practice of law, it is clear that the core element of practicing law is giving legal
advice to a client, and that the practice of law has been described as making it one's business to
act for others in legal formalities, negotiations, or proceedings). The Court concludes that
Farmer’s conduct of traveling toward Indiana, even for the purposes alleged in Paragraph 42 of
the verified petition, does not constitute the practice of law in Indiana.




                                                  9
                                           Conclusion


        The Commission has failed to meet its burden of demonstrating that an injunction should
issue against Farmer. Accordingly, the Court denies the Commission’s verified petition.6 The
costs and expenses incurred by the hearing in this matter shall be borne by the Commission. See
Admis. Disc. R. 24.




Dickson, C.J., and Rucker, Massa, and Rush, JJ., concur.

David, J., concurs in result without separate opinion.




6
 After this matter was fully briefed and oral argument was scheduled, the Commission moved to strike
one statement of fact from Farmer’s response brief and claimed the record does not support that statement
of fact. Farmer’s counsel responded by acknowledging she had misstated the evidence on that one
particular point, apologized for the error, and argued that striking the statement in question was
unnecessary. The Commission easily could have raised this issue in oral argument rather than filing a
motion to strike, if it believed the issue important. In any event, given the parties’ exchange described
above, the Court denies the motion to strike as moot.

                                                   10
