

FOR THE RESPONDENT           FOR THE INDIANA SUPREME COURT

                                       DISCIPLINARY COMMISSION

Phillip R. Smith, pro se                     Donald R.  Lundberg,  Executive
Secretary
                                        D.J. Mote, Staff Attorney
                                  115 West Washington Street, Suite 1165
                                             Indianapolis, IN 46204





      IN THE

      SUPREME COURT OF INDIANA
______________________________________________________________

IN THE MATTER OF               )
                                    )  Case No. 79S00-9910-DI-605
PHILLIP R. SMITH               )
__________________________________________________________________

      DISCIPLINARY ACTION
__________________________________________________________________

                              December 22, 2000


Per Curiam

      While his client remained incarcerated by  order  of  one  court,  the
respondent, Phillip R. Smith, improperly  obtained  from  another  court  an
order releasing his  client.   Today  we  approve  a  Conditional  Agreement
between the respondent and the Disciplinary Commission,  submitted  pursuant
to Ind.Admission and Discipline  Rule  23(11),  and  calling  for  a  public
reprimand of the respondent.
      Having been admitted to the bar of this state in 1978, the  respondent
is subject to our disciplinary jurisdiction.
      The Commission and the respondent agree that the  respondent’s  client
was under house arrest by order of the Tippecanoe  County  Court  No.  2  in
connection with a theft conviction.  When the  client  tested  positive  for
drugs, the Tippecanoe County Court No. 2 issued a warrant  for  her  arrest.
On February 24, 1998, the respondent represented the client in  her  initial
hearing before the Tippecanoe County Court No. 2 magistrate,  who  scheduled
a March 20, 1998, hearing on the revocation of the client’s house arrest.
      On February 26, 1998, the  respondent  filed  a  motion  for  physical
examination seeking  to  have  his  client’s  hair  tested  as  a  means  of
challenging the allegation that  the  client  had  been  using  drugs.   The
respondent did not assert any claim in the county court that the client  was
entitled to an emergency hearing on the  revocation  issue  and/or  to  bond
pending such hearing.  Instead, on the same day,  the  respondent  filed  an
application for a writ of habeas corpus in the  Tippecanoe  Superior  Court,
Judge Donald C. Johnson presiding.   In  that  application,  the  respondent
argued that the client’s incarceration was contrary to law, that the  client
was entitled to an evidentiary  hearing  on  the  revocation  issue  in  the
county court, and that she was entitled to bond pending such a hearing.  The
respondent did not notify the State of the filing.
      On the next day, Judge Johnson  conducted  a  hearing  on  the  habeas
corpus application, although, due to lack of notice of which  Judge  Johnson
was aware, the State was not present at the hearing.  After  the  respondent
presented evidence and argument, Judge Johnson  granted  the  habeas  corpus
petition and ordered the client  released  upon  the  posting  of  a  $5,000
surety bond.
      Ind.  Professional  Conduct  Rule  8.4(d)  prohibits  attorneys   from
engaging in conduct prejudicial  to  the  administration  of  justice.   The
respondent’s failure to notify the State of his filing  of  the  application
for a writ of habeas corpus violated Prof.Cond.R. 8.4(d).
      In mitigation, the Commission and  the  respondent  suggest  that  the
respondent’s actions were based on his belief as to the  law  applicable  to
his client’s case  and  were  not  intended  to  deceive  or  undermine  the
authority of the court  system.   Respondent  was  wrong  about  that.   His
actions constituted  an  attempt  to  contravene  the  order  of  the  court
presiding over his client’s case.  The respondent’s failure  to  inform  the
State of his request for relief from another court prevented the State  from
appearing in that proceeding and presenting its arguments, an omission  that
emphasizes that the respondent was  attempting  to  use  improper  means  to
obtain his client’s release.
      We agree that a public reprimand is the appropriate sanction  for  the
respondent’s misconduct.  These events led to our public  reprimand  of  the
judge who issued that improper order.  Matter of  Johnson,  715  N.E.2d  370
(Ind. 1999).  Moreover, we have  imposed  identical  discipline  in  similar
circumstances.  See, e.g., Matter of Warrum, 724  N.E.2d  1097  (Ind.  2000)
(public reprimand where attorney failed to disclose an existing  Utah  child
support order when  and  after  filing  a  petition  to  modify  support  in
Indiana); Matter of Mullins, 649 N.E.2d 1024 (Ind. 1995)  (public  reprimand
where  attorney  attempted  in  one  county  to   establish   an   emergency
guardianship without informing  the  court  of  related  proceedings  in  an
adjoining county.)
      It is, therefore, ordered that the respondent  is  hereby  reprimanded
and admonished for the misconduct set forth herein.
      The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d) and  to  provide  the  Clerk  of  the
United States Court of Appeals for the Seventh Circuit, the  Clerk  of  each
of the United States District Courts in this state, and the  Clerk  of  each
of the United States Bankruptcy Courts in this state  with  the  last  known
address of the respondent as reflected in the records of the Clerk.
      Costs of this proceeding are assessed against the respondent.

