948 N.E.2d 1154
Ind.2011Background
- Respondent Mark R. McKinney, deputy prosecuting attorney in Delaware County, participated in asset forfeiture proceedings while employed as DPA and as a private attorney receiving 25% of forfeiture judgments.
- A private Asset Forfeiture Attorney Fee Account (opened 1996) held 25% of forfeited funds for Respondent and another DPA; funds were deposited and disbursed from this account.
- From 2002, Respondent used Confidential Settlement Agreements to transfer seized property to the City of Muncie without court supervision, invoicing 25% of the transferred funds.
- Respondent’s duties overlapped as he prosecuted criminal cases while also pursuing private forfeiture actions and CSAs, creating personal financial interests tied to prosecutorial outcomes.
- Investigations began in 1999 (CJQ inquiry) and 2008 (mayor’s petition; Judge Dailey’s investigation); the Court adopted the hearing officer’s findings of misconduct and imposed a 120-day suspension with automatic reinstatement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a deputy prosecutor’s private 25% fee in forfeiture cases creates a conflict of interest | Commission—conflict exists and impairs independent State representation | McKinney—fees ancillary or not materially limiting prosecution | Conflict established; misconduct proven |
| Whether Respondent violated applicable ethics rules governing conflicts and conduct | Violation of 1.7, 1.8/1.8(k), 8.4(d) due to personal financial stake | Procedures misinterpreted; no explicit quid pro quo | Yes, violations found under the specified rules |
| What discipline is warranted for the misconduct | Suspension appropriate; ongoing misconduct warranted sanction | Potential for lesser discipline given mitigation factors | Suspension for 120 days with automatic reinstatement |
Key Cases Cited
- Matter of Ryan, 824 N.E.2d 687 (Ind. 2005) (prosecutor ethics and public trust; undivided loyalty; conflict in enforcement actions)
- Matter of Winkler, 834 N.E.2d 85 (Ind. 2005) (high standard of ethical conduct for prosecutors; ministers of justice)
- Matter of Barce, 849 N.E.2d 1145 (Ind. 2006) (public reprimand for isolated conflict of interest; factors for discipline)
- Matter of Curtis, 656 N.E.2d 258 (Ind. 1995) (suspension context; concurrent representations and prosecutorial discretion)
- Matter of Levy, 726 N.E.2d 1257 (Ind. 2000) (accepting hearing officer findings when no party challenges; final judgment on misconduct and sanction)