Attacking Judge MacTavish

The Indiana Supreme Court has ordered a 30-day suspension with automatic reinstatement for statements in an appellate brief that violated Rule 8.2

Respondent represented the defendant (“DuSablon”) in a suit brought by DuSablon’s former employer (Jackson County Bank, or “JCB”). The trial court granted preliminary and permanent injunctions in JCB’s favor, found DuSablon in contempt for violating the preliminary injunction, and awarded attorney fees to JCB. DuSablon appealed. In the appellant’s brief filed on DuSablon’s behalf, Respondent made several intemperate and unfounded attacks on the integrity of Judge Bruce MacTavish, who had presided over most of the trial court proceedings. The Court of Appeals chastised Respondent in a footnote to its opinion and directed the Clerk to forward the case materials to the Commission. DuSablon v. Jackson County Bank, 132 N.E.3d 69, 71 n.2 (Ind. Ct. App. 2019).

The disciplinary proceeding did not deny due process

While the better practice for the Commission would have been to specifically recite in the complaint each and every statement alleged to have violated Rule 8.2(a), we believe under the circumstances of this case the complaint was sufficient to put Respondent on notice of the statements from his appellant’s brief that would be at issue in this case.

Among the statements that went over the line were the judge’s alleged “almost submissive interactions” with opposing counsel, that the judge “creates the appearance that he is doing the bidding of [the opposing party] dutifully and without question” and “cemented his own subservience” to the opposing party in a memorandum decision.

Sanction

The hearing officer in this case recommended a short suspension, citing the number and scope of improper statements in the appellant’s brief filed by Respondent. We agree that a suspension is warranted for this reason and conclude Respondent should be suspended for 30 days with automatic reinstatement.

(Mike Frisch)