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Legal Ethics

Defense Lawyer’s Effort to Discredit Informant by Arranging Drug Buy Gets Attorney Convicted

Posted Mar 2, 2011 8:20 PM CDT
By Martha Neil

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It may have seemed like a good idea at the time. But Indiana attorney David Schalk's attempt to discredit an informant in a methamphetamine case against his client by proving that the informant was still dealing drugs apparently did not turn out as anticipated.

The Indiana Court of Appeals has now affirmed Schalk's conviction for attempted possession of marijuana. It resulted from the lawyer's efforts to set up a drug buy with the informant, and then inform police, the court explains in a written opinion (PDF).

Schalk, who handled his own appeal pro se, argued that no crime occurred because he was acting only to defend his client, did not take possession of the drugs (nor, he says, did anyone believe he ever intended to) and acted just as police officers and prosecutors do when setting up a sting.

However, a defense attorney is not on the same footing as law enforcement officers, the appeals court said, pointing to what it described as statutory exceptions that protect government agents, but not private lawyers, and attorney ethics rules requiring lawyers to follow the law when representing clients.

"Schalk asks that we recognize an exception to culpability under a criminal statute for a defense attorney who arranges a drug buy to discredit a witness against his client at trial. This we cannot do," the court writes.

Under both statutory and case law, "It should be abundantly clear that an attorney cannot resort to illegal means in order to obtain a favorable disposition for his client,” the opinion says, citing a 1979 decision by the Indiana Supreme Court in the Matter of Mann. "This is not a close case.

"The material facts are undisputed and fully support the trial court’s judgment of conviction. Schalk has not shown reversible error."

Reached by the ABA Journal, Schalk said he intends to seek a further ruling from the Indiana Supreme Court.

In a statement about the appellate opinion posted on his website, he says the court mischaracterized his arguments, which center on what he describes as a dearth of statutory law and regulations in the state setting parameters for conducting a "controlled buy."

While his actions "might possibly have constituted a criminal offense in some jurisdictions, such as states with regulations and safeguards for controlled buys," writes Schalk, he was "completely within his rights" in Indiana to conduct his client's defense as he did.

His website also includes links to the appellant's brief (PDF), appellee's response brief (PDF) and the appellant's reply brief (PDF) in the court of appeals case.

Hat tip: Legal Profession Blog.

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