Darl \Hunk\" Havens v. State of Indiana, 793 F.2d 143 (1986). · Go Syfert
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Darl \Hunk\" Havens v. State of Indiana, 793 F.2d 143 (1986). Cases Citing This Book View Copy Cite
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cited 13× by 13 distinct cases→ Stable · …rule 1.9 is a prophylactic rule to prevent even the potential that a former client's confidences and secrets may be used against him. at p. 145 ✓
46 citation events (38 in the last 25 years) across 13 distinct courts.
Strongest positive: United States v. Mytrez Flora (ca7, 2024-07-08)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Mytrez Flora (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Eugene Haywood (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Kentrevion Watkins (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Lance Washington (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Jahlin Wilson (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Torieuanno White (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Lloyd Dotson (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Andre Neal-Ford (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Ezra Johnson (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Kenwan Crowe (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Keith Gregory (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Sherman Williams (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) United States v. Raevaughn Rogers (2×) also: Cited "see"
7th Cir. · 2024 · confidence medium
“Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him.” Havens v. Indiana, 793 F.2d 143, 145 (7th Cir. 1986).
discussed Cited as authority (rule) Landers v. State (2×)
Tex. Crim. App. · 2008 · confidence medium
Violations of disciplinary rules may be dealt with by other means — both by the State Bar and at the ballot box. [36] In re EPIC Holdings, 985 S.W.2d at 51 . [37] See, e.g., Havens v. Indiana, 793 F.2d 143, 144-45 (7th Cir.1986) (attorney who had formerly represented defendant in possession-of-burglary-tools case was not disqualified from prosecuting him for attempted burglary; finding that the two cases were not "substantially related," the information that the prosecutor used to cross-examine the defendant "was not confidential information because it was a matter of public record," and def…
discussed Cited as authority (rule) Landers, Beth Suzanne
Tex. Crim. App. · 2008 · confidence medium
Violations of disciplinary rules may be dealt with by other means–both by the State Bar and at the ballot box. 36 In re EPIC Holdings, 985 S.W.2d at 51 . 37 See, e.g., Havens v. Indiana, 793 F.2d 143, 144-45 (7th Cir. 1986) (attorney who had formerly represented defendant in possession-of-burglary-tools case was not disqualified from prosecuting him for attempted burglary; finding that the two cases were not “substantially related,” the information that the prosecutor used to cross-examine the defendant “was not Landers Page 19 Prosecution for the same type of offense does not, by itse…
discussed Cited as authority (rule) Buntrock, Dean L. v. SEC
7th Cir. · 2003 · confidence medium
No more does a lesser irregular- ity—a conflict of interest of a prosecutor, or of any other plaintiff’s lawyer—warrant dismissal even if it results in the institution of a criminal proceeding, see Havens v. Indiana, 793 F.2d 143, 144-45 (7th Cir. 1986); United States v. Terry, 17 F.3d 575, 579 (2d Cir. 1994); United States ex rel.
discussed Cited as authority (rule) Dean L. Buntrock v. Securities and Exchange Commission
7th Cir. · 2003 · confidence medium
No more does a lesser irregularity — a conflict of interest of a prosecutor, or of any other plaintiffs lawyer — warrant dismissal even if it results in the institution of a criminal proceeding, see Havens v. Indiana, 793 F.2d 143, 144-45 (7th Cir.1986); United States v. Terry, 17 F.3d 575, 579 (2d Cir.1994); United States ex rel.
discussed Cited as authority (rule) United States v. Humpherys
C.A.A.F. · 2002 · confidence medium
See, e.g., Cole v. Ruidoso Municipal Schools, 43 F.3d 1373, 1383-84 (10th Cir. 1994); In re American Airlines, Inc., 972 F.2d 605 (5th Cir.1992); Havens v. Indiana, 793 F.2d 143, 145 (7th Cir.1986); In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 161-62 (3rd Cir.1984).
cited Cited as authority (rule) Deshields v. Snyder
D. Del. · 1993 · confidence medium
Havens v. State of Indiana, 793 F.2d 143, 144-45 (7th Cir.1986); United States v. Bolton, 905 F.2d 319 (10th Cir.1990).
discussed Cited as authority (rule) United States v. William W. Lilly
1st Cir. · 1992 · confidence medium
It strains credulity to assert that so modest an involvement, even if motivated by an impure purpose, abridged the defendant’s constitutional rights. 17 Cf., e.g., Havens v. State of Indiana, 793 F.2d 143, 145 (7th Cir.) (finding no due process violation where a prosecutor who had previously represented the defendant elicited on cross-examination information which was already a matter of public record), cert. denied, 479 U.S. 935 , 107 S.Ct. 411 , 93 L.Ed.2d 363 (1986).
discussed Cited as authority (rule) Kovacevic v. Fair Automotive Repair, Inc.
N.D. Ill. · 1986 · confidence medium
Just as the Seventh Circuit has relied on the ABA Code, 3 see, e.g., LaSalle, 703 F.2d at 258; Novo, 607 F.2d at 197; and Westinghouse, 588 F.2d at 228, it has also relied on the more recent ABA Rules in matters of ethics and professional responsibility, see, e.g., Dari “Hunk" Havens v. State of Indiana, 793 F.2d 143, 144 (7th Cir.1986) (Rule 1.9); United States v. Marrera, 768 F.2d 201 , 204 n. 5 (7th Cir.1985) (Rule 1.8(d)), cert. denied, — U.S. -, 106 S.Ct. 1209 , 89 L.Ed.2d 321 (1986); United States v. Gutman, 725 F.2d 417, 430 (7th Cir.1984) (Coffee, J., dissenting) (Rule 3.8), cert. …
discussed Cited "see" Madgett v. United States
S.D. Ill. · 2021 · signal: see · confidence high
See Havens v. State of Ind., 793 F.2d 143, 145 (7th Cir. 1986) (finding that petitioner was not denied a fair trial in violation of the due process clause of the fourteenth amendment when prosecutor, who had previously represented the petitioner in unrelated charges years apart, because the prosecutor “did not disclose information obtained in confidence, nor in any way use information obtained in the attorney-client relationship in his prosecution against [petitioner]”); United Staets ex rel.
discussed Cited "see, e.g." Landers, Beth Suzanne
Tex. Crim. App. · 2008 · signal: see, e.g. · confidence medium
See, e.g ., Havens v. Indiana , 793 F.2d 143, 144-45 (7th Cir. 1986) (attorney who had formerly represented defendant in possession-of-burglary-tools case was not disqualified from prosecuting him for attempted burglary; finding that the two cases were not "substantially related," the information that the prosecutor used to cross-examine the defendant "was not confidential information because it was a matter of public record," and defendant "failed to prove that by reason of the former confidential relationship" between him and his former attorney, that attorney "acquired special knowledge of …
discussed Cited "see, e.g." United States v. Wheeler
A.C.C.A. · 2002 · signal: see, e.g. · confidence medium
See, e.g., Havens v. Indiana, 793 F.2d 143, 144-45 (7th Cir.1986); United States v. Bolton, 905 F.2d 319, 321-22 (10th Cir.1990); DeShields v. Snyder, 830 F.Supp. 816, 818 (D.Del.1993); People v. Trail, 197 Ill.App.3d 742 , 144 Ill.Dec. 171 , 555 N.E.2d 68, 74 (1990); Corn v. State, 659 N.E.2d 554, 556 (Ind.1995); People v. Vanderpool, 217 A.D.2d 716 , 629 N.Y.S.2d 307, 309-10 (N.Y.App.Div.1995); Allan L.
discussed Cited "see, e.g." Koch v. Koch Industries
D. Kan. · 1992 · signal: see also · confidence medium
In re Corn Derivatives Antitrust Litigation, 748 F.2d 157, 162 (3rd Cir.1984), cert. denied, 472 U.S. 1008 , 105 S.Ct. 2702 , 86 L.Ed.2d 718 (1985); see also Havens v. State of Ind., 793 F.2d 143, 145-46 (7th Cir.), cert. denied, 479 U.S. 935 , 107 S.Ct. 411 , 93 L.Ed.2d 363 (1986).
discussed Cited "see, e.g." United States v. Stephen Goot
7th Cir. · 1990 · signal: compare · confidence medium
Compare State v. Tippecanoe County Court, 482 N.E.2d 1377, 1379 (Ind.1982) (holding that when the elected prosecutor and not just one of his deputies is disqualified, the entire office must be disqualified) with Havens v. Indiana, 793 F.2d 143, 145 (7th Cir.) (finding no sixth amendment violation by prosecutor, who had previously represented the defendant, when charges were four years apart and were unrelated, but nevertheless, chastising the government’s ethical decision not to recuse the prosecutor anyway), cert. denied, 479 U.S. 935 , 107 S.Ct. 411 , 93 L.Ed.2d 363 (1986).
Retrieving the full opinion text from the archive…
Jack R. Duckworth
Jun 10, 1986.
793 F.2d 143
1986 U.S. App. LEXIS 26009
Cummings, Bauer, Flaum.
RU
BAUER, Circuit Judge.

Defendant Dari “Hunk” Havens appeals from the denial by the district court of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Havens was convicted of attempted burglary and was found to be a habitual offender. The district court denied Havens’s petition for habeas corpus relief on the grounds that Havens was not denied due process either by the trial court’s failure to disqualify the prosecutor who had represented him on unrelated charges four and five years earlier, or by allowing that same prosecutor to file a habitual offender charge. We affirm.

I.

On August 5, 1979, Havens and Fred Sexton, his co-defendant, were charged with attempted burglary. Fred Sexton plead guilty to a lesser included offense. John Milford, Havens’s former counsel, was assigned to prosecute the case. Milford represented Havens on two prior unrelated criminal convictions in 1974 and 1975 for possession of burglary tools.

On May 13, 1980, Milford filed a habitual offender charge against Havens based on the two prior convictions in which he had represented Havens. Havens filed a motion to disqualify Milford on the grounds that as his defense counsel on prior occasions, Milford was in the position to use privileged information against him that Milford obtained during the attorney-client relationship. The court denied the motion as to the underlying burglary charge but withheld ruling as to the habitual offender charge. Prior to trial, the court recused Milford from prosecuting the habitual offender count.

The jury found Havens guilty on both counts. He was sentenced to two years on the attempted burglary charge, and to thirty years on the habitual offender charge. The Indiana Supreme Court affirmed the defendant’s conviction and sentence. The .district court denied habeas corpus relief and this appeal followed.

II.

On appeal Havens argues that allowing John Milford to prosecute him denied him a fair trial in violation of the due process clause of the fourteenth amendment because Milford used privileged information obtained during the attorney-client relationship to prosecute him on the attempted burglary charge. Although we are sensitive to the ethical concerns involved, we do not agree that Havens was denied a fair trial based on our analysis under the “substantial relationship” test. Cannon v. US. Acoustics Corp., 398 F.Supp. 209, 223 (1975); Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d[*145] 221 (1978); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706 (7th Cir.1976); Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir.1978). First, Havens’s earlier convictions were based on charges unrelated to the attempted burglary charge. Second, the information elicited during Milford’s cross-examination was not confidential information because it was a matter of public record. Third, Havens failed to prove that by reason of the former confidential relationship between him and Milford, Milford acquired special knowledge of the facts that were used against Havens at trial. Finally, Havens fails to prove that Milford’s cross-examination so prejudiced his right to a fair trial that he was denied due process.

The sole basis for Havens’ claim is the following exchange which occurred during Milford’s cross-examination of him:

Milford: Were you and Jim Thurman in a motorcyle club together at one time?
Havens: Well, we have been friend [sic] for a long time.
Milford: Were you in the Outlaw Motorcycle Club with him at one time?
Havens: Well — yeah. I guess so.

(R. 318).

Havens argues that his membership in a motorcycle gang is confidential information revealed to Milford during their prior attorney-client relationship. Havens own testimony does not support this claim. He testified that the prosecution introduced evidence during his earlier trials that he was a member of a motorcycle gang. When counsel asked Havens on redirect how Milford knew he had been a member of a motorcycle gang, he answered, “He tried me on several occasions, he defended me on several occasions when I had trials, and they [the prosecution] brought all of this motorcycle stuff up in it.” (R. 338). This testimony shows that Milford knew of Havens’s membership in a motorcycle gang not because he had revealed this information to Milford in confidence, but because the prosecution had brought it up in earlier trials. Regardless of who had prosecuted Havens, that person would have had access' to information about his background. Indeed, we agree with the Indiana Supreme Court that the testimony concerning Havens’s membership in a motorcycle gang is a matter of public record and therefore is not protected by the attorney-client privilege.

Although no constitutional violation exists, ethical concerns dictate that it may have been the better course of action for Milford to recuse himself from the entire case. The basic policies underlying potential conflict of interest problems can be found in Canons 4 and 9 of the American Bar Association Code of Professional Responsibility. Canon 4 provides that “a Lawyer Should Preserve the Confidences and Secrets of a Client.” Canon 9 provides that “a Lawyer Should Avoid Even the Appearance of Professional Impropriety.” After careful scrutiny of the evidence and with these principles in mind, we find that Milford did not disclose information obtained in confidence, nor in any way use information obtained in the attorney-client relationship in his prosecution against Havens. The stringent requirement that a lawyer should avoid even the appearance of impropriety, however, leads us to believe that it would have been better from the public’s point of view if Milford had not participated in this case. Moreover, the ABA Model Rules of Professional Conduct, Rule 1.9 expressly prohibits against representation of interests adverse to former clients.

Rule 1.9 provides:

A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.

Rule 1.9 is a prophylactic rule to prevent even the potential that a former client’s confidences and secrets may be used against him. Without such a rule, clients may be reluctant to confide in attorneys. It is also important for the maintenance of[*146] public confidence in the integrity of the bar.

If Milford had not participated in this case, this issue could have been prudently avoided on appeal.

III.

Havens argues that it was error to allow Milford to file the information charging him with being a habitual offender because he had represented Havens on the convictions alleged in the information. The mere filing of the habitual offender charge by the deputy prosecutor did not deny defendant due process. Havens’s prior convictions are a matter of public record. If Milford had not filed the information, another deputy prosecutor could have. In any event, if the deputy prosecutor who actually prosecuted the habitual offender charge had felt the charge was unfairly brought, he could have dismissed that count on the basis of his prosecutorial discretion.

For the foregoing reasons, the judgment of the district court is

Affirmed.