                                            FILED
                                       Jan 29 2020, 10:36 am

                                            CLERK
                                        Indiana Supreme Court
                                           Court of Appeals
                                             and Tax Court


              IN THE

Indiana Supreme Court
   Supreme Court Case No. 19S-DI-309

         In the Matter of
        Joseph W. Burton,
               Respondent.


        Decided: January 29, 2020

        Attorney Discipline Action



          Per Curiam Opinion
           All Justices concur.
Per curiam.

   We find that Respondent, Joseph Burton, committed attorney
misconduct by abusing his prosecutorial authority as part of a campaign
of retaliation against a detective. For this misconduct, we conclude that
Respondent should be suspended from the practice of law for 90 days
with automatic reinstatement.

  Pursuant to Indiana Admission and Discipline Rule 23(12.1)(b), the
Indiana Supreme Court Disciplinary Commission and Respondent have
submitted for approval a conditional agreement for discipline and related
papers stipulating agreed facts, costs, and proposed discipline.
Respondent’s 1992 admission to this state’s bar subjects him to this
Court’s disciplinary jurisdiction. See IND. CONST. art. 7, § 4. The Court
approves the agreement and proposed discipline.


Stipulated Facts
  J. Dirk Carnahan currently is, and at all relevant times was, the elected
prosecutor in Knox County. Respondent was Carnahan’s chief deputy
prosecutor in Knox County until he “retired” from that position during
the progression of events described below.1

    In December 2017, “Defendant” was facing methamphetamine-related
charges in Greene County when she met with a “Detective” with the
Vincennes Police Department (“VPD”). Before the interview, Detective
had been informed by the Indiana State Police that Defendant was having
a sexual relationship with “your prosecutor,” but Detective did not know
if this meant Carnahan or Respondent. During the interview, Detective
asked Defendant if either Carnahan or Respondent had engaged in a
sexual relationship with her. Defendant indicated she had never been
involved in such a relationship with Carnahan but that she had been




1A disciplinary complaint also has been filed against Carnahan and remains pending as a
separate matter. Our opinion today, accepting the conditional agreement reached by the
Commission and Respondent, binds only the parties to this case.



Indiana Supreme Court | Case No. 19S-DI-309 | January 29, 2020                   Page 2 of 6
engaged in an on-and-off sexual relationship with Respondent for about
20 years. At the conclusion of the interview Detective suggested that it
would not be a good idea for Defendant to tell Respondent about the
interview.

   In March 2018, after she had been convicted, sentenced, and
incarcerated in the Greene County matter, Defendant told Respondent
about her interview with Detective. Referring to Detective, Respondent
told Defendant “that little bitch’s got it coming now; I’ll have that bitch by
her fucking hair now.” He also told Defendant that Carnahan “went
berserk” after learning of the interview and planned to escalate the matter
to VPD’s Chief of Police. Respondent instructed Defendant to supply him
and Carnahan with a statement about the interview, and Respondent
provided Defendant with some specific guidance on what that statement
should say. Defendant supplied this letter a few days later.

    In early April 2018, after receiving the letter from Defendant, Carnahan
filed with the VPD an Employee Misconduct Complaint against Detective.

  Beginning in March 2018 and continuing through April, Respondent
and Defendant discussed the possibilities of Defendant’s sentence being
modified and Defendant living with Respondent on electronic monitoring
home detention instead of serving the remainder of her sentence on work
release. Respondent agreed to talk with the Greene County Prosecutor
about this and told Defendant “you’ve got an ally in the right place, after
you sent that letter.” And on April 5, after the complaint was filed with
the VPD, Respondent called Defendant and instructed her to tell any
future investigators that Respondent was Defendant’s attorney and any
inquiries should be referred to him. During all of these events,
Respondent was still the chief deputy prosecutor in Knox County; he
“retired” from that position effective April 21.

   VPD investigators met with Defendant in prison on May 7. On May 8,
Respondent instructed Defendant not to speak with the investigators
again. Respondent also instructed Defendant to write another letter to
Carnahan regarding the May 7 interview and provided guidance on what
to include in the letter. Defendant supplied this letter to Carnahan a few
days later.


Indiana Supreme Court | Case No. 19S-DI-309 | January 29, 2020        Page 3 of 6
   The parties agree that Respondent violated these Indiana Professional
Conduct Rules prohibiting the following misconduct:

      1.7(a)(2): Representing a client when there is a concurrent conflict of
      interest.

      8.4(d): Engaging in conduct prejudicial to the administration of
      justice.

      8.4(e): Stating or implying an ability to improperly influence a
      government agency or official or to achieve results by means that
      violate the Rules of Professional Conduct.

   The parties cite Respondent’s substantial experience in the practice of
law as a fact in aggravation. In mitigation the parties cite among other
things Respondent’s lack of prior discipline, his remorse and cooperation
with disciplinary proceedings, and his many years of public service.


Discussion and Discipline
  Our analysis of appropriate discipline entails consideration of the
nature of the misconduct, the duties violated by the respondent, any
resulting or potential harm, the respondent’s state of mind, our duty to
preserve the integrity of the profession, the risk to the public should we
allow the respondent to continue in practice, and matters in mitigation
and aggravation. See Matter of Newman, 958 N.E.2d 792, 800 (Ind. 2011).

   We have encountered before cases involving various collisions between
a prosecutor’s public duties and his personal or private financial interests.
See, e.g., Matter of Brizzi, 71 N.E.3d 831 (Ind. 2017); Matter of Henderson, 78
N.E.3d 1092 (Ind. 2017); Matter of Thayer, 745 N.E.2d 207 (Ind. 2001). But
the stipulated facts of this case, and the two Rule 8.4 charges, involve
more than an isolated conflict of interest. Specifically, they reflect an
attempt by Respondent to improperly leverage his prosecutorial authority
to exact a personal vendetta against a police detective.

  We find similarity between this case and Matter of Christoff and Holmes,
690 N.E.2d 1135 (Ind. 1997). There, an elected prosecutor and his chief
deputy improperly used their prosecutorial discretion and authority in a


Indiana Supreme Court | Case No. 19S-DI-309 | January 29, 2020        Page 4 of 6
coordinated effort to retaliate against a political opponent. We suspended
the prosecutor and reprimanded the chief deputy for their violations of
Rule 8.4(d), explaining that “[u]se of prosecutorial authority becomes
improper when the sole or overriding motivation for exercising it is the
prosecutor’s personal benefit or gain, and not to further the public interest
of effective law application and enforcement.” Id. at 1141.

   Respondent similarly abused his position in an effort to retaliate against
a detective who, acting upon information provided to her by another law
enforcement agency, was seeking to determine whether Respondent or
Carnahan had attempted to trade consideration of leniency in Defendant’s
criminal matters over the years for sexual contact. Like the chief deputy in
Christoff and Holmes, Respondent’s overriding motivation was not to
further the public interest but rather to protect his own self-interest.

   Taking into account the nature of Respondent’s misconduct, the range
of sanctions imposed in prior cases involving similar misconduct, and the
stipulated factors in aggravation and mitigation, we are persuaded that
the mid-range suspension with automatic reinstatement agreed upon by
the parties is an appropriate sanction in this case.


Conclusion
   The Court concludes that Respondent violated Professional Conduct
Rules 1.7(a)(2), 8.4(d), and 8.4(e). For Respondent’s professional
misconduct, the Court suspends Respondent from the practice of law in
this state for a period of 90 days, effective immediately. Respondent shall
fulfill all the duties of a suspended attorney under Admission and
Discipline Rule 23(26). At the conclusion of the period of suspension,
provided there are no other suspensions then in effect, Respondent shall
be automatically reinstated to the practice of law, subject to the conditions
of Admission and Discipline Rule 23(18)(a).

   The costs of this proceeding are assessed against Respondent. Pursuant
to the parties’ stipulation, the Court hereby orders Respondent to pay the
following expenses in separate checks to be transmitted to the
Commission: (1) $98.89, payable to the Commission for investigative


Indiana Supreme Court | Case No. 19S-DI-309 | January 29, 2020       Page 5 of 6
expenses; (2) $250.00, payable to the Clerk for court costs; and (3) $375.00,
payable to the Court for hearing officer expenses.

  With our acceptance of the parties’ agreement, the hearing officer
appointed in this case is discharged.


All Justices concur.



ATTORNEY FOR RESPONDENT
Donald R. Lundberg
Indianapolis, Indiana

ATTORNEYS FOR INDIANA SUPREME COURT
DISCIPLINARY COMMISS ION
G. Michael Witte, Executive Director
Larry D. Newman, Staff Attorney
Aaron Johnson, Staff Attorney




Indiana Supreme Court | Case No. 19S-DI-309 | January 29, 2020       Page 6 of 6
