ATTORNEYS FOR RESPONDENT                           ATTORNEYS FOR THE INDIANA SUPREME COURT
Donald R. Lundberg                                 DISCIPLINARY COMMISSION
Frank Sullivan, Jr.                                G. Michael Witte, Executive Director
Indianapolis, Indiana                              Angie Ordway, Staff Attorney
                                                   Indianapolis, Indiana

______________________________________________________________________________

                                             In the
                           Indiana Supreme Court
                             _________________________________
                                                                                FILED
                                     No. 46S00-1512-DI-705
                                                                           Nov 06 2017, 1:40 pm

IN THE MATTER OF:                                                               CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
ROBERT NEARY,
                                                       Respondent.
                             _________________________________

                                   Attorney Discipline Action
                                Hearing Officer Sheila M. Moss.
                             _________________________________


                                        November 6, 2017

Per Curiam.


       We find that Respondent, Robert Neary, committed attorney misconduct by, among other
things, eavesdropping on confidential attorney-client communications. For this misconduct, we
conclude that Respondent should be suspended for at least four years without automatic
reinstatement.


       This matter is before the Court on the report of the hearing officer appointed by this
Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified
Complaint for Disciplinary Action,” and on the post-hearing briefing by the parties.
Respondent’s 1999 admission to this state’s bar subjects him to this Court’s disciplinary
jurisdiction. See IND. CONST. art. 7, § 4.
                               Procedural Background and Facts


       The Commission filed a two-count “Verified Complaint for Disciplinary Action” on
December 17, 2015, and later amended that complaint. As set out more fully below, the
amended complaint charged Respondent with professional misconduct in connection with his
actions in two criminal cases while serving as the chief deputy prosecutor in LaPorte County.
Following a hearing, the hearing officer filed her report on April 28, 2017, finding Respondent
committed violations as charged and recommending a sanction ranging from a four-year
suspension to disbarment.


       Count 1. On Friday, March 14, 2014, Brian Taylor was being held in custody at the
Michigan City Police Department in connection with a homicide investigation. Attorney David
Payne arrived at the station mid-afternoon to meet with Taylor, and Respondent was summoned
to the station by the police chief to assist with any issues that might arise. Respondent and
detectives escorted Payne to the interview room to meet with Taylor, a detective instructed
Payne to flip a toggle switch outside the room “unless you want us listening to your
conversation,” and Payne did so. However, the switch merely controlled the recording system
and did not disable the audio and video feeds, which were controlled in a separate area in the
police station referred to as the “war room.”


       After Payne began his meeting with Taylor, Respondent and several detectives gathered
in the war room. They did not disable the audio or video feeds, but rather watched and listened
to the confidential attorney-client discussion. Ten to twenty minutes into the interview, Taylor
and Payne discussed a gun allegedly used in the incident under investigation, and Taylor told
Payne where the gun was located. A few minutes after that, the audio in the war room was
disabled, the room was cleared, and Respondent instructed the detectives not to recover the
weapon.    Notwithstanding Respondent’s instruction, two detectives proceeded to the site
identified by Taylor during his conversation with Payne and recovered a gun.


       Respondent did not initially notify Payne of what had transpired. Three days after
Payne’s meeting with Taylor, when the police chief learned of the overheard conversation and



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the subsequent recovery of a gun, the police chief emphasized to Respondent the importance of
sharing that information with Taylor’s counsel. Respondent then notified counsel of what had
happened and self-reported his conduct to the Commission shortly thereafter.1


        Count 2. On December 13, 2012, John Larkin was being held at the Long Beach Police
Department (LBPD) in connection with the shooting death of his wife. Larkin had agreed to
give a statement to investigators in exchange for being charged with voluntary manslaughter in
lieu of murder. Present for this interview were Larkin, Larkin’s counsel, Respondent, LaPorte
County Prosecutor Robert Szilagyi, and the LBPD officer who conducted the interview. The
interview room was monitored by an audio and video feed sent to a control room elsewhere in
the police station.


        About an hour into the interview, the participants took a short break lasting
approximately eleven minutes. Larkin and his counsel remained in the interview room after the
others had left. Based on past practices, Szilagyi and Larkin’s counsel both believed the LBPD
officer in the control room would turn off the recording during the break.               However, the
recording system was not turned off and continued to record while Larkin spoke with his counsel
during the break about several confidential matters, including defense strategy (hereinafter the
“break discussion”).


        Respondent first viewed the DVD of the interview, including the break discussion, about
one month later. Respondent watched the entire break discussion even though the privileged
status of that discussion either was, or should have been, immediately apparent to Respondent.
Respondent provided a copy of the DVD, including the break discussion, to Larkin’s counsel but
did not mention to counsel that the break discussion had been recorded.


        Thereafter, Larkin’s counsel filed a motion to dismiss the voluntary manslaughter charge
based on the recording of the break discussion. Respondent filed an unsealed response in which
he recited the contents of the break discussion, and he attached as exhibits the DVD and a written


1
 These events gave rise to an interlocutory appeal, State v. Taylor, 49 N.E.3d 1019 (Ind. 2016), which we
address further below.


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transcript, both of which included the break discussion. The trial court ordered the transcript and
all relevant information be placed under seal and instructed Respondent to resubmit his filing on
green paper excluded from public access.2


                                                Discussion


          The Commission alleged, and the hearing officer concluded following an evidentiary
hearing, that Respondent violated the following Indiana Rules of Professional Conduct:


          4.4(a): Using methods of obtaining evidence that violate the legal rights of a third
              person (Count 1).

          8.4(d): Engaging in conduct prejudicial to the administration of justice (Counts 1
              and 2).

          Respondent has petitioned this Court to review the hearing officer’s findings and
conclusions.3 The Commission carries the burden of proof to demonstrate attorney misconduct
by clear and convincing evidence. See Ind. Admission and Discipline Rule 23(14)(i) (2016).
We review de novo all matters presented to the Court, including review not only of the hearing
officer’s report but also of the entire record. See Matter of Wall, 73 N.E.3d 170, 172 (Ind. 2017).
While this Court reserves the right to make the ultimate determination, the hearing officer’s
findings receive emphasis due to the unique opportunity for direct observation of witnesses. Id.


          Respondent correctly argues that the appellate holdings in Taylor, Larkin I, and Larkin II
are not dispositive of this disciplinary action. See Matter of Keiffner, 79 N.E.3d 903, 906 (Ind.
2017) (quoting Matter of Smith, 60 N.E.3d 1034, 1036 (Ind. 2016)). The relevant inquiries in a
criminal appeal and disciplinary proceeding are not wholly coextensive, a prosecutor
individually does not have the opportunity in a criminal appeal to defend his or her own


2
 As addressed further below, these events and others gave rise to an interlocutory appeal, Larkin v. State,
43 N.E.3d 1281 (Ind. Ct. App. 2015) (“Larkin I”), as well as a second appeal following the trial court’s
granting of Larkin’s motions for discharge and dismissal. State v. Larkin, 77 N.E.3d 237 (Ind. Ct. App.
2017) (“Larkin II”), trans. pending.
3
    Respondent also has filed a motion for oral argument, which we deny.


                                                     4
professional conduct, and extrinsic evidence may be brought to bear in a disciplinary proceeding
that paints a “more complete picture” of the prosecutor’s conduct than what was reflected in the
record available to the appellate court. Id. Respondent points to such extrinsic evidence here –
chiefly, his own testimony and that of several of the detectives who participated in the war room
eavesdropping – and he argues that, like the respondent attorneys in Smith and Keiffner, he too
should be absolved of professional misconduct charges.


       However, our dispositions in Smith and Keiffner were predicated in large part on
credibility findings favorable to the respondent made by the hearing officer in each case and the
emphasis we give such findings. In contrast, the hearing officer who heard the testimony here
made comprehensive and well-reasoned credibility findings against Respondent, whose version
of events has evolved considerably since his initial self-report to the Commission, and against
the detectives who chose to testify here but who had refused to testify about the eavesdropping
during the suppression proceedings at issue in Taylor. We find in our de novo review ample
support for the hearing officer’s findings in this regard.


       Respondent also argues that there was insufficient prejudice caused by his actions to
support a Rule 8.4(d) violation. To be sure, the full scope of damage caused by Respondent’s
actions and the misdeeds of other law enforcement officials remains to be seen. As of this
writing, proceedings in the trial court are ongoing following our remand in Taylor and a petition
to transfer is pending in Larkin II. But Respondent’s conduct easily meets the threshold for
prejudice under Rule 8.4(d) irrespective of the ultimate outcomes in the prosecutions of Taylor
and Larkin. Respondent’s conduct in both cases fundamentally infringed on privileged attorney-
client communications and, at an absolute minimum, has caused significant delays and
evidentiary hurdles in the prosecutions of Taylor and Larkin, even assuming they still can be
prosecuted at all. Respondent’s attempts to downplay the seriousness of his invasion of the
attorney-client privilege – for example, by claiming he was not paying close attention to the
Taylor-Payne conversation until the gun was mentioned, or by noting the proactive measures
undertaken sua sponte by the trial court to shield Respondent’s filings in response to Larkin’s
motion to dismiss from public access – are wholly unavailing.




                                                  5
       In sum, we find sufficient support for the hearing officer’s findings and conclusions with
regard to each of the charged rule violations.       Accordingly, we find Respondent violated
Professional Conduct Rule 4.4(a) in Count 1 and Rule 8.4(d) in both counts. We turn now to the
question of sanction.


       There is, quite thankfully, scant precedent in our disciplinary annals for misconduct such
as this. As we wrote in Taylor, the constitutional imperative of honoring and protecting the
confidentiality of a defendant’s communications with counsel is a principle “[w]e would have
hoped . . . too obvious to mention.” Id. at 1023. We described the war room eavesdropping in
Taylor using words such as “egregious,” “flagrant,” “unconscionable,” “shameful,” “abhorrent,”
and “reprehensible.”     While Smith and Keiffner confirm that these descriptions are not
dispositive in the disciplinary context, nothing in the “more complete picture” adduced during
these disciplinary proceedings leads us to view Respondent’s conduct with any less outrage or
disapproval. In many respects, these proceedings have painted an even more alarming picture of
Respondent, in that they show Respondent gradually has retreated from his initial self-report to
the Commission and has given evasive and inconsistent explanations and statements regarding
the war room eavesdropping.       As aptly found by the hearing officer, “Respondent’s ever
evolving narrative points to a lack of honesty.” (Report at 15).


       We share the hearing officer’s view that “the egregious nature of Respondent’s conduct
cannot be overstated” and warrants a sanction at the upper end of the disciplinary spectrum. (Id.
at 21-22). The Commission urges us to disbar Respondent. The severity of the misconduct and
Respondent’s repeated transgressions certainly lend support to the notion that he should be
disbarred. On the other hand, Respondent has no prior discipline, he self-reported his conduct to
the Commission, and several persons testified to his good reputation in the community (although,
as noted by the hearing officer, these persons did not appear to have been particularly well-
informed of the circumstances giving rise to these disciplinary proceedings). At the end of the
day, these considerations persuade us that the door should not permanently be closed on
Respondent’s legal career and that he should be afforded an opportunity at an appropriate
juncture to prove by clear and convincing evidence his professional rehabilitation and fitness to
resume practicing law.



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                                           Conclusion


       The Court concludes that Respondent violated Professional Conduct Rules 4.4(a) and
8.4(d). For Respondent’s professional misconduct, the Court suspends Respondent from the
practice of law in this state for a period of not less than four years, without automatic
reinstatement, beginning December 18, 2017. Respondent shall not undertake any new legal
matters between service of this opinion and the effective date of the suspension, and Respondent
shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26).
At the conclusion of the minimum period of suspension, Respondent may petition this Court for
reinstatement to the practice of law in this state, provided Respondent pays the costs of this
proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for
reinstatement of Admission and Discipline Rule 23(18). The costs of this proceeding are
assessed against Respondent, and the hearing officer appointed in this case is discharged.


All Justices concur.




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