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S T . J OS E P H C OU N T Y B A R A S S OC I A T I ON , 2 0 1 5 F A L L C L E

TRENDING TOPICS IN INDIANA LAWYER ETHICS – WHAT (NOT) TO DO:

1) EX PARTE COMMUNICATIONS2) THE SANCTION CREEP

EX PARTE COMMUNICATIONS

TRIAL RULE 65(B)• A temporary restraining order may (affirmative rather than negative) be

granted without wr itten or oral notice to the adverse party or his attorney only if:

• (1) it clear ly appears from specif ic facts (not general assertions) shown by aff idavit or by the ver if ied complaint (not general text) that immediate and ir reparable (not probable and temporary) injury, loss, or damage will result (not likely to result) to the applicant before the adverse party or his attorney can be heard in opposition; and

• (2) the applicant’s attorney certif ies to the court in wr iting the efforts, if any, (even if no effort made) which have been made to give notice

AND the reasons supporting his claim that notice should not be required.

Emphasis and parentheticals added

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TRIAL RULE 65(B) (continued)

• Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be f iled forthwith in the clerk’s off ice and entered of record; shall define the injury and state why it is ir reparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten [10] days, as the court fixes , unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the whereabouts of the party against whom the order is granted is unknown and cannot be determined by reasonable diligence or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extens ion shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest poss ible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two (2) days’ notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditious ly as the ends of justice require.

EX PARTE COMMUNICATION REQUIRES…

• A communication (oral or written) between:• A judge and• Another person, typically party or party’s counsel

• Defined: “A communication…made by a party outside the record without giving other parties notice or an opportunity to be heard.• In re Anonymous, 726 N.E.2d 566 (Ind. 2000).

EX PARTE RULES - JUDICIAL

• Jud. Cond. R. 2.9 – improper ex parte communication prohibited

• Jud. Cond. R. 2.6 – accord right to be heard to interested persons

• Jud. Cond. R. 1.1 – judge must comply with law

• Jud. Cond. R. 1.2 – act in manner to promote public confidence in the judiciary.

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EX PARTE RULES - LAWYER• Prof. Cond. R. 3.5(b) - A lawyer shall not:

• (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

• Prof. Cond. R. 8.4(a) – violate or attempt to violate the Rules of P/C, knowingly assist or induce another to do so, or do so through the acts of another

• Prof. Cond. R. 3.3(d)• (d) In an ex parte proceeding, a lawyer shall inform the tribunal

of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

JQC ADVISORY OPINIONS

• Is it appealable error or ethical discipline?• Violation of procedural due process rights = ethical discipline

• #1-15 – re-statement of requirements of TR 65(B) and application to temporary guardianships

• Ex parte Order permissible, BUT…

• Guardianship statutes (IC 29-3-3) do not displace Trial Rules• Emphasis on “irreparable harm”; don’t marginalize• Judge’s duty to report to Disciplinary Commission lawyer attempt

at ex parte temp guardianship or temp custody.

JQC ADVISORY OPINIONS

• #1-01 – ex parte temporary custody order without an attempt to notify adverse party. Warning rather than advisory.

• Ex parte Emergency Orders are permissible, BUT are rare exceptions.

• Judge should insist on notice and hearing if feasible and would not result in alleged irreparable harm.

• Emphasis on “irreparable harm”

• #1-98 – informing one party of a decision for purpose of drafting the Court’s Order, without notifying other party is ex parte.

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EX PARTE LAWYER DISCIPLINE

• In re Anonymous, Oct. 15. 2015 – temp. guardianship TRO; emphasizes ex parte TRO permitted only with demonstrable reasoning.

• In re Anonymous, 786 N.E.2d 1185 – divorce provisional order TRO; domestic relations cases not exempted from TR 65(b).

• In re Anonymous, 729 N.E.2d 566 – custody TRO; ex parte defined; mailed notice to opponent same day as securing ex parte order.

• In re Marek, 609 N.E.2d 419 – divorce; post-it note alleging post-hearing facts attached to proposed findings.

• In re Wilder, 764 N.E.2d 617 – TRO County Reuse Authority Board; ex parte meeting w/judge to stop removal of board member.

EX PARTE LAWYER DISCIPLINE

• In re Ettl, 851 N.E.2d 1258 – divorce provisional order/visitation; simultaneous filing of divorce petition and provisional orders without notice to opponent; no averment as to why service not attainable or why service should not be given.

• In re Bash, 813 N.E.2d 772 – visitation; ex parte phone call to judge advising that client would not comply with judge’s order.

• In re Cotton, 939 N.E.2d 619 – divorce protection order; ex parte amendment of order protecting marital property; FRIDAY P.M.

• In re Geller, 9 N.E.3d 643 – custody; ex parte phone call to judge; misrepresentation that opposing counsel OK’d call; FRIDAY, 3:48 P.M.

EX PARTE JUDICIAL DISCIPLINE

• In re Jacobi, 715 N.E.2d 873 – companion case to In re Wilder.• In re Morton, 770 N.E.2d 827 – custody; ex parte discussion of

contents of motion being filed; investigation into witness background.

• In re Sauce, 561 N.E.2d 751 – custody; personal divorce action had ex parte visit with judge and secured temp custody order for himself.

• In re Sanders, 674 N.E.2d 165 – criminal case; ex parte at jail with def. to inquire of difficulties with defense counsel.

• In re Bean, 529 N.E.2d 836 – criminal case; judge pro tem; ex parte order returning seized $$$ to def. Civil forfeiture action pending.

• In re Kern, 774 N.E.2d 878 – custody; granted emergency change of custody via ex parte order.

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OTHER JUDCIAL EX PARTE MATTERS

• Jewell v. State, 624 N.E.2d 38 – jury communication; ex parte submission of instructions to jury room w/o notice to def.

• Johnson v. State, 674 N.E.2d 180 – jury communication; denial of jury request for information w/o notice to def. Presumed prejudice is rebutted. Harmless error.

• Bell v. State, 655 N.E.2d129 – companion case to In re Sanders• In re Guardianship of Garrard v. Stone, 624 N.E.2d 68 – ex parte call to

family therapist witness to discuss written report.

THE SANCTION CREEP

THE SHEPARD COURT

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THE DICKSON COURT

THE RUSH COURT

REJECTIONS BY TYPE OF CASE

• Neglect = 6• Conflict of Interest = 2• Dishonesty, fraud, deceit, misrep = 4• Trust Acct violations = 1• Dealings with 3rd persons = 3• Personal misconduct = 12• Contempt = 1• UPL or Assisting UPL = 2• Competence = 1• Trial misconduct = 1

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THE DISBARMENT CASES:6 IN 15 MONTHS

• In re Steven J. Ouellette, 37 N.E.3d 490, Ind. (2015)

• In re Bradley Hamilton, 34 N.E.3d 1204, Ind. (2015)

• In re Robert Stochel, 34 N.E.3d 1207, Ind. (2015)

THE DISBARMENT CASES:6 IN 15 MONTHS

• In re Mark Keaton, 29 N.E.3d 103, Ind. (2015)

• In re Steven Geller, 9 N.E.3d 643, Ind. (2014)

• In re Christopher Haigh, 7 N.E.3d 980, Ind. (2014)

CLOSE, BUT NO CIGAR

• In re Jerry Peteet,• Hearing off icer

recommends disbarment• Resp. dies pr ior to ruling

• In re Thomas Philpot, 31 N.E.3d 468, Ind. (2015)• Theft from public off ice• 3-2 vote, 4 yrs suspension• Dissent: “…should be

disbarred.”

• In re Robert Sanderson, __ N.E.3d __, Ind. (2015)• Reciprocal disc. from Illinois• UPL fraud; hijacked atty #• IL disbar; IN indefinite susp

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CLOSE, BUT NO CIGAR

• In re Teneil Selner , 36 N.E.3d 1048, Ind. (2015)• Pos. of meth precursors• 4-1 vote, 3 yrs suspension• Dissent: “…has demonstrated

unfitness to responsibly represent, advise, and serve future clients.”

• In re Trezanay Atkins, 16 N.E.3d 950, Ind. (2014)• Theft from Marion Co. Bar Association• 5-0 vote, 2 yrs suspension• Restitution after disciplinary

proceeding begins is not a mitigator

↑↑ SANCTIONS CREEPING UP ↑↑

Before• Repeat OWI - stayed

susp + probation

• Felony OWI - stayed or short susp + prob

• Theft, deceit, felony conviction – 3 year susp or resignation

After• Repeat OWI - short

executed susp + stayed susp + probation

• Felony OWI – still same, but 2 Justices dissenting strongly as too light.

• Theft, deceit, felony conviction – 4 yr, 5yr susps or disbarment

↑↑ SANCTIONS CREEPING UP ↑↑

Before• Personal misconduct

that shocks conscience – 3 year susp or resignation

• Neglect of clients with prior discipline – 180 days susp

After• Personal misconduct

that shocks conscience - disbarment

• Neglect of clients with prior discipline – 1 yr susp w/o automatic reinstatement (In re Daniels, 8/20/15)

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DEVEREUX V. LOVE, 30 N.E.3D 754, IND. APP. (2015)

• Former associate of Wm. Conour• Malpractice , not misconduct – failure to warn of Conour’s

potential wrongdoing• What did Devereux know or should have known at time of alleged

malpractice?• Insufficient evidence to prove Devereux knew Conour was

potentially stealing from clients• Evidence of ordinary skill and knowledge: reporting concerns to

DC• Detailed timeline laid out in opinion

I N D I A N A SU P R EM E C OUR T DI SC I P LI NA R Y C OMMI SS I ON

G. MICHAEL WITTE