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Justice wants attorney suspended longer

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The Indiana Supreme Court couldn’t agree on the appropriate sanction for an attorney who engaged in an improper ex parte communication with a judge, leaving one justice to argue for at least a 90-day suspension.

The justices voted 4-1 to suspend Jane G. Cotton for 30 days with automatic reinstatement. The justices found that she violated Indiana Professional Conduct Rule 3.5(b) by engaging in misconduct by having an improper ex parte communication with a judge and Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice.

Cotton began representing a wife in her protection order case and a divorce case. Before Cotton became the wife’s attorney, the wife filed a petition for a protection order in which she wrote several address that the husband should stay away from. One of those addresses was for the parties’ “South Central Way Property.” Magistrate Judge Stephen D. Clase crossed out all the hand-written addresses and initialed the changes to indicate they were intentional.

The South Central property was sold at a tax sale and the husband’s attorney petitioned for and was granted a motion to allow him to remove his personal property so it wouldn’t be lost to the tax sale purchaser. This happened about the time Cotton started representing the wife. She went to the courthouse to talk to the magistrate about the order of protection with the crossed-out addresses, but the only one available was Judge Thomas Clem. She spoke with him off the record, said the South Central property had been left off inadvertently and the judge wrote that address on a photocopy of the order for protection. He didn’t sign or initial it; Cotton later took the court’s seal and impressed it on the order.

Cotton never informed the husband or his attorney of this change. When the husband went to the property to get his belongings, the wife called the police and he was forced to spend more than $1,000 petitioning for a second motion to remove his property.

The hearing officer found no facts in aggravation and found the following facts in mitigation: Cotton doesn’t have a prior record of discipline; her client’s mental illness may have contributed to a communication of inaccurate or incomplete facts to her; and Cotton was motivated by a genuine concern for the welfare of her client. Cotton tendered the $1,275 to the commission for payment of restitution to the husband, which the justices order be released to the husband.

“The accuracy of documents utilized by a tribunal in a proceeding is of the utmost importance to the administration of justice, and fraudulent alteration of such documents by an officer of the court is therefore serious misconduct,” states the per curiam opinion In the Matter of Jane G. Cotton, No. 48S00-0910-DI-497.

Justice Frank Sullivan wanted a more severe sanction, arguing based on previous disciplinary actions of a similar nature, Cotton should have been suspended for at least 90 days.

Cotton’s suspension is effective Feb. 7, 2011.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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