In Re Anonymous

IN THE

SUPREME COURT OF INDIANA

IN THE MATTER OF )
) Case NoCASE NO. 30S00-9904-DI-234
ANONYMOUS )

DISCIPLINARY ACTION

June 9, 2000

Per Curiam

This attorney discipline case came before this Court on a
conditional agreement entered into between the Indiana Supreme Court
Disciplinary Commission and an attorney. The parties submitted an agreed
statement of circumstances and proposed that the appropriate sanction for
the agreed misconduct was a private reprimand. This Court approved the
agreement and privately admonished the respondent. The misconduct emanated
from the attorney's effort to secure an emergency child custody order. We
hold that lLawyers seeking emergency relief must provide adequate notice to
opposing parties[1] or comply strictly with the provisions of Ind.Trial
Rule 65(B). For the education of the bar, we herein recount the facts and
circumstances of this case while preserving the confidential nature of the
discipline.
The parties agree that the respondent represented the paternal
grandparents of a child in custody proceedings against the natural parents.
At all times relevant to the custody proceedings, counsel represented the
natural parents, and the respondent was aware of such representation. On
May 11, 1998, at a hearing requested by the paternal grandparents, the
court entered an order appointing a guardian ad litem for the child, who
was then in the legal and physical custody of his natural parents. The
guardian ad litem was directed to conduct an investigation of the child’s
circumstances and report thereon to the court.
On June 8, 1998, the guardian ad litem filed her report with the
court, recommending that the child be placed in the custody of his paternal
grandparents. The court scheduled the matter for a hearing on June 23,
1998. On June 9, 1998, the respondent, who had also received a copy of the
guardian ad litem’s report, prepared and filed a Verified Petition for
Immediate Emergency Custody (hereinafter “Verified Petition”) signed by the
paternal grandparents, and a proposed order granting relief. By the
Verified Petition, the respondent sought an emergency order placing the
child with the paternal grandparents pending a full hearing of the case.
The respondent served a copy of the Verified Petition on counsel for the
natural parents by placing it in the United States mail on June 9. He did
not make any other effort to contact the opposing party, did not certify to
the judge what efforts he had made to give appropriate notice, and did not
certify the reasons supporting a claim that notice should not be required.

While at the courthouse to file the Verified Petition with the court,
the respondent requested to and did speak with the judge presiding over the
case. The respondent informed the judge of the filing of the Verified
Petition and urged the judge to read the guardian ad litem’s report.
Again, The the respondent did not notify opposing counsel that he intended
to speak to the judge about the case.
The judge advised the respondent he would read the guardian ad
litem’s report and that the respondent should return to the court later in
the day. When the respondent returned to the court, he obtained an order
signed by the judge granting emergency custody of the child to the paternal
grandparents pending a full hearing on the merits and granting the natural
parents supervised visitation.
After obtaining the emergency order, the respondent telephoned
counsel for the natural parents, and, for the first time during the
pendency of the Verified Petition, notified counsel of the emergency
proceeding and the fact that the court had already entered an order
transferring custody of the child from the natural parents to the paternal
grandparents.
Indiana Professional Conduct Rule 3.5(b) provides that “[a] lawyer
shall not communicate ex parte with [a judge, juror, prospective juror or
other official] except as permitted by law.”[2] A communication is ex
parte if made by a party outside the record without giving other parties
notice or an opportunity to contest. The Commission and the respondent
agree that the ex parte communication between the respondent and the judge
occurred in a manner not permitted by law. Indiana Code 31-17 et seq.,
(dealing with "Family Law: Custody and Visitation Rights") contains no
affirmative legal authority for obtaining judicial relief without advance
notice to or the presence of the opposing party or its counsel. In
addition, IC 31-17-2-2 provides that proceedings of this sort are to be
governed by the Indiana Rules of Trial Procedure. Emergency judicial
relief is generally governed by Trial Rule 65(B).[3] Trial Rule 65(B)
provides:
A temporary restraining order may be granted without written or
oral notice to the adverse party or his attorney only if:
(1) it clearly appears from specific facts shown by affidavit or
by the verified complaint that immediate and irreparable injury,
loss, or damage will result to the applicant before the adverse
party or his attorney can be heard in opposition; and
(2) the applicant's attorney certifies to the court in writing
the efforts, if any, which have been made to give notice and the
reasons supporting his claim that notice should not be required.

Every temporary restraining order granted without notice shall
be indorsed with the date and hour of issuance, shall be filed
forthwith in the clerk's office and entered of record; shall
define the injury and state why it is irreparable and why the
order was granted without notice; …

The respondent made no attempt to comply with the provisions of T.R.
65(B) and he made no written certification of the reasons why opposing
counsel should not receive notice. Failure to follow the T.R. 65(B)
safeguards renders a proceeding in which proper notice has not been given
to the opposing party an impermissible ex parte communication by the
attorney, and, as such, is prohibited under Ind.Professional Conduct Rule
3.5(b). The respondent’s simply discussing scheduling matters with the
judge is not a violation of the rule. However, we conclude that byseeking
emergency custody on behalf of his clients without providing opposing
counsel with seeking emergency relief without providing notice that was
reasonably calculated to give opposing counsel an opportunity to be present
during his efforts to obtain that relief, or and without certifying to the
judge his efforts or lack of effort what efforts, if any, the respondent
had made to give notice or the reasons why notice should not be required,
to provide such notice to opposing counsel, the respondent engaged in an
impermissible ex parte contact with the court, in violation of Prof.Cond.R.
3.5(b).
Although not raised during this proceeding, we note that the judge
should inquire of counsel seeking emergency relief as to whether other
parties are represented and the effort to contact other counsel or
unrepresented presented parties. Canon 3(B)(8) of the Indiana Code of
Judicial Conduct specifically prohibits a judge from considering ex parte
communications, except under certain specified circumstances.[4] A judge
who fails to comply fully with the provisions of T.R. 65(B) engages in ex
parte communication proscribed by the Code of Judicial Conduct. See, e.g.,
Matter of Jacobi, 715 N.E.2d 873 (Ind. 1999) (judge found to have violated
the Code of Judicial Conduct by granting a request for a temporary
restraining order after an ex parte conference with one of the parties
where the relief was granted in the absence of certifications required by
T.R. 65(B)).
At the heart of our adversarial system of justice is the opportunity
for both sides of a controversy to be fairly heard. “Improper ex parte
communications undermine our adversarial system, which relies so heavily on
fair advocacy and an impartial judge. [Such communications] threaten[] not
only the fairness of the resolution at hand, but the reputation of the
judiciary and the bar, and the integrity of our system of justice.” Matter
of Marek, 609 N.E.2d 419 (Ind. 1993). The facts of this case exhibit
conduct that the prohibition against ex parte communication is intended to
proscribe. While the mailed notice of the Verified Complaint was most
likely still sitting in the mailbox, the respondent obtained relief for his
client without ever notifying opposing counsel or justifying the reasons
why notice should not be given. Only after obtaining the relief he sought
did the respondent pick up the telephone and advise opposing counsel of the
emergency proceeding. The opposing party had no opportunity to be present
during the conversation between the respondent and the judge regarding the
Verified Petition. The respondent’s failure to provide notification
effectively divested resolution of the emergency custody issue of the
fundamentals necessary for fair advocacy in a contested proceeding.
Further, the proposed order submitted by the respondent and signed by the
judge contained no reasons supporting any claim that notice to the adverse
party should not have been given.

The respondent and the Commission point out that, based on
allegations of abuse raised in the guardian ad litem’s report, the
respondent believed in good faith that he was acting in the child’s best
interest and that a true emergency existed. While the respondent’s efforts
to obtain judicial protection for a child at risk of harm may be laudable,
his failure to comply with established mandatory procedures meant to
protect the rights of other parties with important legal interests at stake
cannot be condoned. they do not justify dispensing with mandatory
procedures that are meant to protect the rights of other parties who have
important legal interests at stake in a judicial proceeding. Clearly,
respondent should have properly notified properly notified opposing counsel
of his intention to seek immediate emergency judicial relief, or certified
to the court his efforts and any reasons why such notice could not be
provided. He did not and, accordingly, shall be issued has been issued a
private reprimand.
Costs of this proceeding are assessed against the respondent.
-----------------------
[1] Throughout this opinion, the term “opposing party” shall refer to the
opposing party or its attorney.
[2] The term “ex parte” means “on or from one side only.” Black’s Law
Dictionary, 5th Ed. (1979) at 517.

[3] As the parties have agreed, we find that the custody matter did not
fall within the scope of T.R. 65(E), dealing with temporary restraining
orders in domestic relation cases.

[4] Those circumstances are:

(a) Where circumstances require, ex parte communications for
scheduling, administrative purposes or emergencies that do not deal with
substantive matters or issues on the merits are authorized; provided:

(i) the judge reasonably believes that no party will gain a
procedural or tactical advantage as a result of the ex parte communication,
and,
(ii) the judge makes provision promptly to notify all other
parties of the substance of the ex parte communication and allows an
opportunity to respond.

(b) A judge may obtain the advice of a disinterested expert on the
law applicable to a proceeding before the judge if the judge gives notice
to the parties of the person consulted and the substance of the advice, and
affords the parties reasonable opportunity to respond.

(c) A judge may consult with court personnel and others whose
function it is to aid the judge in carrying out the judge’s adjudicative
responsibilities, or with other judges.

(d) A judge may, with the consent of the parties, confer separately
with the parties and their lawyers in an effort to mediate or settle
matters pending before the judge.

(e) A judge may initiate or consider any ex parte communications
when authorized by law to do so.