HomeMy WebLinkAboutCC-04-21-03-08 Client/Attorney WaiverSponsor: Councilor Rundle
RESOLUTION NO. 04-21-03-08
A RESOLUTION OF THE COMMON COUNCIL OF THE
CITY OF CARMEL, INDIANA, CONCERNING THE WAIVER
OF ATTORNEY/CLIENT PRIVILEGE FOR A SPECIFIC MATTER
WHEREAS, the Common Council of the City of Carmel, Indiana ("Council") received
correspondence ("Letter") from the Indiana Supreme Court Disciplinary Commission
("Commission"), a copy of which is attached hereto and incorporated herein as Exhibit A; and
WHEREAS, there is pending before the Commission an investigation of a complaint against
an attorney, Mayor James Brainard; and
WHEREAS, the investigation relates to an incident involving Mayor Brainard and a law
firm, Ice Miller ("Firm"), which previously served as bond counsel for the City of Carmel ("City");
and
WHEREAS, according to the Letter, the investigation has been delayed because of the Firm's
concem over violating any potential attorney/client privilege it may have with its client, the City; and
WHEREAS, the City, as an organizational client, can only act through its officers and
employees; and
WHEREAS, this Council is comprised of officials of the City and can act on the City's
behalf with respect to certain matters, including the approval of bond issues; and
WHEREAS, the Letter has requested this Council to waive any potential attorney/client
privilege that the City may have with the Firm so that the investigation of the Commission may
proceed; and
WHEREAS, since public business is involved and the client is a governmental organization,
a different balance may be appropriate between maintaining confidentiality and assuring that any
wrongful official act is prevented or rectified; and
WHEREAS, the Firm was serving in the role ora government lawyer and not as a private
attorney representing the Mayor; and
WHEREAS, courts have held that government lawyers have a higher duty to act in the
public's interest and to foster an open and accountable government;
Sponsor: Councilor Rundle
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Carmel,
Indiana, that:
Section One: The Council, as officials of the City, waive any potential attomey/client
privilege that the City may have with the law firm of Ice Miller and its individual
attorneys with respect to any conversations any of its attorneys may have had with
any officials or employees of the City during the years 1996-1999, or at any other
time related to the investigation being conducted by the Commission referred to in
Exhibit A.
Section Two: The members of this Council will cooperate fully with the
investigation being conducted by the Commission referred to in Exhibit A, and
would encourage all other officials and employees of the City to do the same.
Section Three: This Resolution shall be in full force and effect from the date of
passage, as provided by law.
FPASSED by the Common Counci! of the City of Carmel, Indiana this(~/61clay of
(v~ ?/;! ,2003, by a vote of__l~_ ayes and ~ nays.
COMMON COUNCIL FOR THE CITY OF CARMEL
~~ Tempore
,///Ronald E. Carter
O n
ATTEST:
D~ana L. Cordray, CleriC-Treasurer
C~;ra{e A. Oalla~et'~
Prepared By:
E. Davis Coots
Coots, Henke & Wheeler, P.C.
255 East Carmel Drive
Carmel, IN 46032
(317)844-4693
04/!6/2003 li:3S 317-233-0261 DISCIPLINARY COMM PAGE 02
~~ ,., ,,. ..... _INDIANAPOLIS, IN 46204
~$t Washin~on Street
OF THE Suite 1165 South Tower
SUPREME COURT Pho,, (317) 232-1807
Fax (317) 233-0261
DONALD R. LUNDBERG TDD For Deaf: (317) 233-61 II
Ex~ SECreTArY
Apdl 16, 2003
Ms. Lu~i Snyder
President, Carmd City Council
One Civic Square
Camad, Indiana 46032
By first class mail and by fax to: 571-2410
Dear Ms. Snyder:
I am writing to you in your official capacity as President of the Carmel City
Council. The Indiana Supreme Court Disciplinary Commission is the agency of the
Indiana Supreme Court that investigates, and in appropriate cases, prosecutes claims of
lawyer misconduct. The investigation stage of the lawyer discipline process is
confidential by role of the Indiana Supreme Court.
The purpose of my letter is to seek authority of the Carmel City Council to
intmwiew one or more agents of the Indianapolis law firm of'Ice, Miller in connection
with an on-going confidential investigation. In furtherance of our investigation, I have
been in contact with representatives of ice, Miller in an attempt to arrange an interview
with Ice, Miller partner, Thomas K. "Buddy" Downs, and possibly other agents of Ice,
Miller. Ice, Miller has quite appropriately indicated that the information I seek to obtain
is presumptively p .r0tected by the attorney-client privilege and otherwise subject to the
confidentiality mica that govern the attorney-client relationship. Ice, Miller has further
indicat~l to me that the client whose imerests are protected by the priv/lege is the
governmental ~ntity known aa the City of Carmel. Thus, Ice, Miller is not willing or able
to provide information in connection with our investigation without the consent of its
client, the City of Carmel. The protections of the attorney-client privilege and roles of
client confidentiality belong to the client, not the attorneys; and so it is the client who
must consent to any waiver of privilege and confidentiality, not the attorney.
Of course, because it is not a natural person, thc City of Carmel is not capable of
directly waiving the attorney-client privilege; it must do so through the appropriate duly
authorized agents. Since the City of Carmel is governed by a city council, being the
legislative branch of government, and by a mayor, being the highest official in the
executive branch of government, I have been informed by Ice, Miller that it will honor
our request for an intt~iew only upon receipt of a waiver of the attorney-client privilege
on behalf of the City of Carmel by the city council and by the mayor.
04/~/2003 11:39 ~17-2~3-02~1 ~I$CIPLIHARY COMM PA~E ~3
Luci Snyder
April 16, 2003
Page 2
Please accept this let~r as my formal request on behalf of the Supreme Court
Disciplinary Commission for you to solicit from the entire Carmel City Council a waiver
of the attorney-client privilege on behalf of the City of Carmel so as to permit agents of
the Indiana Supreme Court Disciplinary Commission to interview Mr. Downs and such
other agents or represontativ~s of lee, Miller as are necessary to allow us to complete our
investigation into a panding matter. I am independently seeking a waiver of the attorney-
client privilege f~om the mayor.
Please feel free to contact me directly or through counsel if you require any
further information or have any questions. Otherwise, I look forward to hearing from you
in response to the substance of my request at the council's earliest opportunity.
DRL/mc
~Ry~ L~undSi ely,
Executive Secretary
Office of the Clerk-TreaSurer
Memorandum
DATE:
TO:
FROM:
April 16, 2003
Carmel City Council
Luci Snyder. President Common Council
CC:
Mayor James Brainard and Clerk Treasurer Diana Cordray
I have this day received from the Disciplinary Commission of The State of
indiana Supreme Court, a formal request to waive the attorney-client privilege
a regards an ongoing confidential investigation.
However, since the Carmel Common Council cannot express acquiescence or
denial without a formal resolution, such resolution is attached for your
consideration.
Since Mayor Brainard is the subject of the investigation, and I and the immediate
past president, Wayne Wilson, are opponents in the upcoming mayoral primary, I
have asked past President Norman Rundle to handle this matter.
Further, since the State of Indiana Supreme Court Disciplinary Commission has
requested a response at the Council's eadiest opportunity, this matter should be
discussed promptly and therefore this resolution will be an add-on matter for the
Council at our April 21st meeting.
City of Carmel ~ One Civic Square ~ Carmel ~ Indiana ~ 46032
317/571-2414 Voice ~ 317/571-2410 Fax