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Overzealous Advocacy, Private Sting Gets IN Lawyer Suspended

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By William Peacock, Esq. on April 19, 2013 12:02 PM

David Schalk went where few lawyers have gone before - to a marijuana dealer. He did so, not to get high, but to discredit the informant that was set to testify against his client in a methamphetamine case, reports the ABA Journal. And when he was fighting his resulting conviction for attempted possession of marijuana in the Indiana Court of Appeals, he argued that not only did he never possess (nor intend to possess) the marijuana, but he acted exactly as police officers and prosecutors do when performing sting operations.

The Indiana Court of Appeals didn't buy his argument when it affirmed his conviction in 2011. Neither did the Indiana Supreme Court, which suspended his license to practice law for nine months, reports the Associated Press.

Though we don't yet have access to the court's opinion, the AP quotes Chief Justice Brent E. Dickerson's written order as stating that Schalk "showed a complete lack of any insight into his misconduct." We do, however, have access to the opinion from the criminal case, which provides some pretty hilarious details on the busted bust.

Schalk devised a plan to send "operatives" to purchase marijuana from the informant. His client supplied two of his friends for the sting. Schalk assured the friends that the plan was "legit" and that no trouble would result. He provided the pair with a tape recorder and $200. They purchased $50 worth of marijuana instead, spending the rest on gas and food. While Schalk was locating a law enforcement officer to take possession of the drugs, the pair smoked it - all of it.

The next day, Schalk was reimbursed for the drug money by his client's mother (who thought it was for depositions) and the overzealous attorney petitioned the court to take possession of the drugs, thinking that such a procedural path would make his actions perfectly legal. Shortly thereafter, he was charged with a Class D Felony for conspiracy to possess marijuana.

Attorneys can become over-invested in their clients cases. We're passionate advocates. However, you have to remember that there is a distinct line between defense attorney and defendant. As the Indiana Court of Appeals stated, "an attorney is not exempt from the criminal law even if his only purpose is the defense of his client."

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