Missing Guns
The Indiana Supreme Court has imposed a 30 day suspension with automatic reinstatement for unauthorized communication with a represented party and related violations
Respondent represented “Husband” in consolidated marital dissolution and protective order proceedings (hereinafter the “Divorce Case”) initiated in the wake of a domestic dispute. Respondent also represented Husband in a criminal proceeding (hereinafter the “Criminal Case”) arising from the same domestic dispute. Wife was represented by counsel in the Divorce Case, and Respondent knew this.
In early April 2019, Wife’s protective order petition was granted by agreement and Husband’s protective order petition was dismissed. An agreed provisional order entered in the Divorce Case around the same time indicated that issues remaining to be resolved included attorney fees, valuation of marital assets, and division of the marital estate. The marital assets included several firearms allegedly in the home at the time the domestic incident occurred that police did not find when they searched the property.
Without notifying Wife’s counsel, Respondent subpoenaed Wife in the Criminal Case and took a taped statement from her in August 2019. During that interview Respondent questioned Wife about the domestic incident and asked her several questions about the firearms and other marital property over the objection of the deputy prosecutor, who referenced the Divorce Case and Wife’s right to have her counsel present.
When later confronted about this by Wife’s counsel, Respondent stated “We asked zero questions about the divorce case.” And when Wife’s counsel filed a motion for an order to produce the taped statement, Respondent filed an objection inaccurately stating that “Wife’s Counsel had one (1) month[’s] notice of the taped statement” and the taped statement was not relevant to matters at issue in the Divorce Case. The court issued the order to produce and denied Respondent’s subsequent motion to reconsider, noting that in an earlier pleading Respondent had represented that trial in the Criminal Case would impact the outcome of the Divorce Case. The court added that Respondent “should be prepared to discuss Rule of Professional Conduct 4.2 and its comments at the final dissolution hearing.” Respondent emailed the recorded statement to Wife’s counsel the following day.
Respondent was replaced as counsel after a disqualification motion was filed in the underlying matter.
In addition to the Rule 4.2 violation, the court found
We agree with the hearing officer’s ultimate conclusions that Respondent violated Rule 3.3(a)(1). Respondent points to her own testimony that the reference to “Wife’s counsel” having been given notice of the taped statement was a scrivener’s error. But Respondent’s testimony was not credited and finds little circumstantial support in the record.
And
We are similarly unpersuaded by Respondent’s challenge to the hearing officer’s finding of a Rule 8.4(d) violation. Respondent’s acts of misconduct unduly prolonged the litigation in the Divorce Case, required the court and Wife’s counsel to expend additional resources to force Respondent to turn over the taped statement, and led to disqualification proceedings that ultimately compelled Husband to retain new counsel.
Sanction
Turning to the question of sanction, we have regularly imposed reprimands for similar violations of Rule 4.2. See, e.g., Matter of Steele, 181 N.E.3d 976, 980 (Ind. 2022); Martin, 166 N.E.3d at 347; Litz, 894 N.E.2d at 984; Matter of Baker, 758 N.E.2d 56, 58 (Ind. 2001). Were Respondent’s misconduct so limited, we might be inclined to do so here as well. But we agree with the Commission that Respondent’s additional acts of dishonesty toward the court in the Divorce Case elevate this to a more serious level that warrants a short suspension.
Molter, J., concurs in part but dissents from the sanction, believing a public reprimand is warranted. (Mike Frisch)