ATTORNEY FOR THE RESPONDENT                        ATTORNEYS FOR THE INDIANA SUPREME COURT
Alice M. Morical                                   DISCIPLINARY COMMISSION
Indianapolis, Indiana                              G. Michael Witte, Executive Secretary
                                                   Paula Cardoza-Jones, Staff Attorney
                                                   Indianapolis, Indiana

______________________________________________________________________________

                                           In the
                             Indiana Supreme Court
                              _________________________________

                                    No. 79S00-1508-DI-512
                                                                          Oct 15 2015, 10:44 am
IN THE MATTER OF:

ANONYMOUS,
                                                        Respondent.
                              _________________________________

                                    Attorney Discipline Action
                              _________________________________


                                       October 15, 2015

Per Curiam.


       Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court
Disciplinary Commission and Respondent have submitted for approval a “Statement of
Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed
discipline.   The Respondent’s admission to this state’s bar subjects her to this Court’s
disciplinary jurisdiction.


       The Court approves the agreement and finds that Respondent engaged in attorney
misconduct by communicating ex parte with a judge without authorization to do so. For this
misconduct, we find that Respondent should receive a private reprimand.
                                          Stipulated Facts


       Respondent was hired by the maternal grandparents of a young child who were
concerned about the child’s welfare. At the time, the child was living with the grandparents in
White County, the putative father’s paternity had not yet been established, and the child’s mother
allegedly was an unemployed drug addict who was unable to properly care for the child but
nevertheless was threatening to remove the child from the grandparents’ home.


       On June 11, 2014, Respondent prepared an “Emergency Petition” seeking to have the
grandparents appointed as the child’s temporary guardians. Respondent dispatched an associate
attorney in her office to the White County Courthouse with instructions to present the
Emergency Petition for judicial consideration. The associate attorney presented the Emergency
Petition to the judge, who reviewed the Emergency Petition and signed the proposed order
appointing the grandparents as temporary co-guardians of the child. The order was directed to be
served on the child’s mother and putative father.


       Respondent did not provide advance notice to the mother or the putative father before
causing the Emergency Petition to be presented to the judge.1 Respondent also did not comply
with Trial Rule 65(B), which required Respondent to certify to the court the efforts (if any) made
to give notice to adverse parties and the reasons supporting a claim that notice should not be
required.


       The parties cite no facts in aggravation. Facts cited in mitigation are: (1) Respondent has
no prior discipline; (2) she fully cooperated with the Commission; and (3) her character and
reputation within the Tippecanoe County legal community is good.




1
  The parties agree that under the circumstances of this case, the actions of the associate attorney are
attributable to Respondent pursuant to Indiana Professional Conduct Rule 5.1(c).


                                                   2
                                            Discussion


       Indiana Professional Conduct Rule 3.5(b) provides in relevant part that an attorney shall
not communicate ex parte with a judge during a proceeding unless authorized to do so by law or
court order.


       The question of authority in this case hinges upon Trial Rule 65(B), which governs the
type of emergency judicial relief sought by Respondent on the grandparents’ behalf. See Matter
of Anonymous, 729 N.E.2d 566, 568 (Ind. 2000). That rule provides that a temporary restraining
order may be granted without notice to the adverse party only if, among other things, “the
applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to
give notice and the reasons supporting [her] claim that notice should not be required.” Ind. Trial
Rule 65(B)(2). An attorney’s failure to comply with this rule renders the subject proceeding an
unauthorized ex parte communication prohibited under Professional Conduct Rule 3.5(b).2


       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. See
Matter of Anonymous, 786 N.E.2d 1185, 1189 (Ind. 2003). 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. See Anonymous,
729 N.E.2d at 569. For Respondent’s misconduct in this case, we agree with the parties that a
private reprimand is warranted.

2
  Judges have a similar ethical obligation and likewise must ensure compliance with Trial Rule 65(B).
Ind. Judicial Conduct Rule 2.9(A); Matter of Kern, 774 N.E.2d 878 (Ind. 2002); Matter of Jacobi, 715
N.E.2d 873 (Ind. 1999).


                                                 3
                                        Conclusion


       The Court concludes that Respondent violated Professional Conduct Rule 3.5(b) by
communicating ex parte with a judge without authorization to do so. The agreement submitted
by Respondent and the Commission to resolve this case will be accepted by separate order, and
Respondent will be privately reprimanded. The costs of this proceeding are assessed against
Respondent.


All Justices concur.




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