The orders of the Indiana Supreme Court, amending the various Indiana Rules of Court, have been posted online here. They take effect January 1, 2005.
The current Indiana Rules of Court are available here.
Several readers have written to me within the past few days, advising that the final versions of the rule amendments had been posted - thanks to all. I wanted to wait, however, until I could point to an article commenting on the amendments. Such an article is now available, written by Kelly Lucas of the Indiana Lawyer. It is the lead front-page article in the current (Oct. 6-19, 2004) issue. Unfortunately, it is not available online.
The article focuses on the extensive revisions made to the Indiana Rules of Professional Conduct. It helpfully points out that the changes to the rules themselves are redlined, but the many changes to the comments are not.
Changes highlighted in the article include client confidentiality, conflicts of interest, pro bono service, multi-jurisdictional practice, false statements, jury rules, and CLE.
Lucas' article points out that Chief Justice Shepard, joined by Justice Dickson, dissents on the changes to Rule 3.3 of the Rules of Professional Conduct. This dissent may be found beginning at p. 147 of the revised Rules of Professional Conduct. A quote from the dissent:
Since the American Bar Association first issued canons of ethics in 1908, and for at least that long in Indiana, a lawyer representing the defendant in a criminal case has had the same obligation that all of us lawyers have to promote the truth before the judge or jury. Lawyers have long thought that it both demeaned the profession and damaged the role of courts to present false evidence.I will try to see if I can post the Indiana Lawyer article.That now changes. Today’s amendments to Rule 3.3 add a striking command to
existing practice by saying: “A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.” Put another way, lawyers who try cases are generally called upon to decide what evidence to present and how to present it, except that lawyers will now be obliged to put on the stand a client the lawyer believes will commit perjury. I think this is a bad idea for the profession and for the cause of justice. * * *The bench and bar are currently much focused on building public trust and confidence in the courts and the legal profession. A decision to compel lawyers to put before juries testimony they believe is perjured can only detract from those efforts.
This change will also cause an important shift in the relationship between the criminal defendant and the defendant’s lawyer. Under the present rule, the lawyer who works to dissuade a client from testifying falsely possesses some considerable clout in the discussion because it is presently the lawyer, in the end, who decides whether to call the client to stand. Under the new rule, the client will know that this is not the lawyer’s call at all. If the client insists, the lawyer will be bound by the rule to assent and assist.
Michael Ausbrook of the INCourts blog also has written on the revision to Rule 3.3(a), his 10/7/04 post may be found here.
Posted by Marcia Oddi at October 8, 2004 07:29 AM