An Angola lawyer who failed to inform a litigant’s lawyers that the litigant was asked to sit for a deposition has been publicly reprimanded by the Indiana Supreme Court.
The justices imposed the public reprimand against Patricia L. Martin in a Thursday order.
According to the disciplinary order, Martin was representing a husband in post-dissolution litigation with his first wife when he filed for divorce from his second wife following a domestic dispute that ended with charges against his second wife. Martin represented the husband in the second dissolution action as well.
Counsel for the first wife issued notice of a deposition of the second wife, but neither Martin nor the first wife’s counsel told the second wife’s attorneys about the deposition, even though Martin knew the second wife had representation for both the divorce and the criminal action. Then, when the second wife gave incriminating testimony during her deposition, Martin contacted the prosecutor and provided a copy of the deposition.
Martin’s hearing officer, Morgan Superior Judge Christopher L. Burnham, found that she violated Indiana Professional Conduct Rule 4.2, which holds that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law or a court order.” Martin challenged that finding, arguing that the deposition was part of the first dissolution case, which the second wife was not party to
“However,” the Supreme Court wrote, “Rule 4.2 protects ‘a person’ and not just a party. Moreover, all three underlying cases involved overlapping subject matter, and second wife was a party to the other two cases.
“By her own admission Respondent knew in advance that the deposition likely would touch upon subject matter relevant to the dissolution case and the criminal case … , and it is undisputed that the questioning of Second Wife at the deposition in fact did touch upon such subjects,” the court held. “Respondent also admitted that use of the deposition was not limited to the proceeding between Husband and First Wife but could also be used against Second Wife in the dissolution proceeding between her and Husband.”
The justices rejected Martin’s narrow interpretation of the word “matter” in the rule as “the specific proceeding in which the deposition was taken,” finding that interpretation was not supported by the language or commentary to Rule 4.2. They also rejected her claim that she had a duty to protect husband’s interests at the deposition, thus authorizing her questioning of the second wife.
“… (W)e agree with the hearing officer’s conclusion that this argument presents a false choice,” the court wrote. “‘Respondent could have protected the rights of her client without disrespecting the rights of a third person by simply informing [Second Wife’s] counsel that a deposition had been scheduled.’”
Agreeing with the hearing officer that Martin violated Rule 4.2, the justices also agreed with his recommendation of a public reprimand. They cited, among other factors, her lack of prior discipline as a factor in its disciplinary decision.
The costs of the proceeding are assessed against Martin. The case is In the Matter of: Patricia L. Martin, 20S-DI-25.