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Attorney reprimanded for ex parte communication

October 15, 2015

A Tippecanoe County attorney has received a private reprimand after the Indiana Supreme Court concluded she violated Professional Conduct Rule 3.5(b) when an emergency petition for a temporary guardian appointment was presented to the judge before notice was presented to the parents.

The attorney was hired by the grandparents of a child who were concerned about the child’s care. The child lived with grandparents; the putative father’s paternity had not yet been established and the mother was allegedly an unemployed drug addict.

An associate attorney in the respondent’s office presented the emergency petition for judicial consideration. The judge granted it and directed it be served on the child’s parents.

The respondent did not provide advanced notice to the mother or putative father before presenting the petition to the judge, nor did she comply with Trial Rule 65(B), requiring her to certify to the court any efforts made to give notice to the adverse parties and the reasons supporting a claim that notice should not be required.

The justices, in In the Matter of: Anonymous, 79S00-1508-DI-512, noted the attorney has no prior discipline, cooperated with the Disciplinary Commission, and her character and reputation within the Tippecanoe County legal community is good.

“To be sure, Trial Rule 65(B) contemplates that there will be situations justifying the issuance of temporary emergency relief without notice, and the availability of such extraordinary relief can be particularly critical in domestic relations or custodial cases where the immediate safety and well-being of a child or domestic partner is shown to be at demonstrable risk,” the per curiam opinion states. “We do not wish to discourage attorneys from seeking, or judges from issuing, such relief where appropriate. Nevertheless, when such relief is sought, the basic safeguards provided by Trial Rule 65(B) are essential to due process and must be followed.

“In sum, while Respondent’s intentions regarding the welfare of her clients’ grandchild may have been good, they did not justify dispensing with the mandatory procedures designed to protect the rights of other parties with legal interests at stake in the proceeding. For Respondent’s misconduct in this case, we agree with the parties that a private reprimand is warranted.”

 

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