
FOR THE RESPONDENT                FOR THE INDIANA SUPREME COURT
                                  DISCIPLINARY COMMISSION

Karl L. Mulvaney                  Donald R. Lundberg, Executive Secretary
Indianapolis, Indiana                   115 West Washington Street
                                        Indianapolis, Indiana  46204




                                   IN THE


                          SUPREME COURT OF INDIANA


IN THE MATTER OF             )
                                  )     CASE NO.  64S00-9907-DI-401
KENNETH J. ALLEN             )



                             DISCIPLINARY ACTION



                             September 13, 2002

Per Curiam


      The Disciplinary Commission charged  Valparaiso  attorney  Kenneth  J.
Allen with making misrepresentations to potential jurors during  voir  dire,
purposefully  reading  documents   identified   by   opposing   counsel   as
confidential, and issuing a misleading press release.  We  find  today  that
these actions violate the Rules of Professional Conduct.
      The hearing officer appointed by this Court to hear this matter  found
misconduct  and  recommended  a  public  reprimand.   The   Commission   has
petitioned this Court for review of the hearing officer’s  report,  pursuant
to  Ind.Admission  and  Discipline  Rule  23(15).  Our  review  process   in
disciplinary cases is  de  novo  in  nature,  based  on  the  entire  record
presented to us.  Matter of Manns, 685 N.E. 2d 1071 (Ind. 1997),  Matter  of
Young, 546 N.E. 2d 819 (Ind. 1989).
      Under Count I of the verified complaint underlying  this  action,  the
parties  stipulate  that  the  respondent  was  principal  counsel  for  the
plaintiff class in a class-action lawsuit.  The lawsuit involved charges  of
child  molestation.   During  the  voir  dire  of  prospective  jurors,  the
respondent stated:
      “I cannot and will not represent a person who is a criminal or charged
      with a criminal offense.  It’s part of my make up that I  don’t  agree
      with that, and I’d just rather not do it, so I don’t.  And no  lawyers
      in my law firm do the…it’s my obligation and it’s  our  obligation  at
      our firm when somebody comes in, to them know that, to let  them  know
      that I may not be qualified to handle their case if it’s a – if it’s a
      murder or some criminal activity….that’s not something I can do  well,
      and I –or that – we choose not to do it at all.”


The respondent stated to another panel of potential jurors that:
      “I don’t, and none of the  lawyers  in  our  firm  represent  criminal
      defendants.  We don’t do that kind of work.  It’s not  something  that
      I’m suited for … I just mean that it’s something that we  decided  not
      to do, and we don’t do it … and you know, the truth is,  we  don’t  do
      anything besides represent people who have been hurt or  the  families
      of people who have been killed, and that’s all we do.   And so whether
      it’s a murder case, or a rapist or robber…we don’t do that.”


Although the respondent’s law  firm  did  not  engage  in  the  practice  of
criminal law, during relevant times the respondent was employed as  a  part-
time indigent counsel in the Lake Superior  Court,  Division  III  where  he
routinely was appointed to represent criminal defendants.
      The Commission charged the  respondent  with  knowingly  making  false
statements of material fact in violation of  Ind.Professional  Conduct  Rule
3.3(a)[1]   and   with   engaging   in   conduct   involving   deceit    and
misrepresentation in  violation  of  Prof.Cond.R.  8.4(c).[2]   The  hearing
officer found that because the respondent at least part  of  the  time  used
terms such as “we do not” or “our office does not”  while  denying  that  he
practiced  criminal  law,  there  was  no  material  misrepresentation.    A
"material" representation may be defined as one "relating  to  matter  which
is so substantial and important as to influence the  party  to  whom  it  is
made."   Matter of Wagner, 744 N.E.2d 418, 421 (Ind. 2001) (in  the  context
of Prof.Cond.R. 4.1(a) relating to false  statements  of  material  fact  to
third  parties);  Black's  Law  Dictionary,  p.  880  (5th  Ed.1979).    The
respondent contends that his statements were not  material,  but  instead  a
voir dire tactic intended to elicit candor  from  prospective  jurors.   His
statements to the jurors,  as  quoted  above,  contain  numerous  references
indicating that the respondent did not practice criminal law.  In fact,  the
use of the pronoun “I” so permeates the  respondent’s  statements  that  the
clear message is that he did not practice  criminal  law,  and  not,  as  he
contends, that only his firm did not.  Such statements are “substantial  and
important” in selecting a jury to hear a civil case hinging  on  allegations
of child  molesting.  The  respondent  might,  for  example,  seek  to  lead
potential jurors to believe that he would not  represent  a  person  charged
with such a crime, given that he was bringing an  action  which  essentially
(in a civil context) alleged such violations.   Accordingly,  we  find  that
his statements were “material,” and further  that  they  misrepresented  the
range of the respondent’s  law  practice  by  indicating  that  he  did  not
practice criminal law when in  fact  he  did.   We  find  that  he  violated
Prof.Cond.R. 3.3(a) and 8.4(c).[3]
      The parties further stipulated that during a mid-trial  deposition  of
one of the plaintiff’s expert witnesses conducted at the law offices of  one
of the defense counsel attorneys, the respondent paced around the  room  and
looked through and read documents  belonging  to  defense  counsel,  despite
defense  counsel’s  protests  and  identification  of   the   documents   as
“sensitive”  and  “confidential.”   Despite  the  warnings,  the  respondent
continued reading the documents.   After  the  deposition,  defense  counsel
moved for, and  was  granted,  a  mistrial.  In  addition  to  granting  the
mistrial, the court barred the respondent from  representing  the  class  in
further proceedings.
      We now find that by reading opposing counsel’s confidential  documents
despite being asked to stop, the respondent engaged in  conduct  prejudicial
to the administration of justice in violation of Prof.Cond.R. 8.4(d).[4]
      Under Count II, the parties stipulate that the respondent  released  a
“press advisory” following the  crash  of  American  Eagle  Airlines  flight
#4184 near  Roselawn,  Indiana  in  1994.   In  his  “press  advisory,”  the
respondent claimed that family members of two of the victims  had  contacted
him and that he did “not expect to file suit until after the NTSB  completed
its  preliminary  investigation.”   At  the  time  the  press  advisory  was
released, the respondent had not been retained to pursue any claim  relating
to the crash.   In  the  same  press  advisory,  the  respondent  also  made
reference to previous verdicts he had  obtained  in  transportation  related
accidents, which used statistical  data  and  past  success  as  an  implied
indication of future success.
      The  hearing  officer  found  that  the  respondent   with   violating
Prof.Cond.R. 7.1(b)[5].  We find that the respondent  violated  Prof.Cond.R.
7.1(b) by issuing a false and misleading press advisory.
      Having found misconduct, we must now assess an  appropriate  sanction.
In so doing, we note that a current of misrepresentation  runs  through  the
respondent’s actions in both  counts.   He  demonstrates  a  willingness  to
deceive potential jurors, opposing counsel, and the general public.  At  the
same time, we are cognizant that the hearing officer found  several  matters
in mitigation: the respondent’s  cooperation  with  the  Commission  in  its
investigation, his heretofore unblemished disciplinary  record  in  Indiana;
and his willingness  to  take  responsibility  for  at  least  some  of  his
misconduct   (i.e.,   the   advertising    and    deposition    violations).
Notwithstanding this mitigation, we conclude that a period of suspension  is
warranted  in  light  of  the  pattern  of  deception   attendant   to   the
respondent’s acts.
      It is, therefore, ordered that the respondent, Kenneth  J.  Allen,  is
hereby suspended from the practice of law for a period of ninety  (90)  days
beginning on October 26, 2002, at the conclusion  of  which  the  respondent
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 the hearing  officer  in  this
matter, and to provide the clerk of the United States Court of  Appeals  for
the Seventh Circuit, the clerk of each of the United States District  Courts
in this State, and the Clerk of each of the United States Bankruptcy  Courts
in this state with the last known address of the respondent as reflected  in
the records of the Clerk.
      Costs of this proceeding are assessed against the respondent.

Shepard, C.J., Sullivan and Boehm, JJ. concur.
Dickson, J., dissents, believing the sanction imposed by the  Court  is  too
lenient.
Rucker,  J.,  dissents,  believing  the  sanction  of  a  public   reprimand
recommended by the hearing officer would be sufficient.


-----------------------
[1] Prof.Cond.R. 3.3(a) provides in part that “[a] lawyer shall not
knowingly make a false statement of material fact or law to a tribunal.”
[2] Prof.Cond.R. 8.4(c) provides in part that “[i]t is professional
misconduct for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.”
[3] The hearing officer found that a charge of misrepresentation under
Prof.Cond.R. 8.4(c) can only be sustained if there was an intent to
misrepresent a fact to the potential jurors.  Again, we conclude that a
reading of the respondent’s statements to the potential jurors clearly
demonstrates his conveyance of the message that the respondent did not in
any way practice criminal law.  Even assuming, arguendo, that the
respondent’s motive behind that statement was to “elicit candor” from those
on the panels, it still cannot be denied that the purpose of the statements
was to lead the panel members to believe he did not practice criminal law.
[4] Prof.Cond.R. 8.4(d) provides in part that “[i]t is professional
misconduct for a lawyer to engage in conduct that is prejudicial to the
administration of justice.”
[5] Prof.Cond.R. 7.1(b) provides that “[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.”

