SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No
CASE NO . 30S00-9904-DI-234
June 9, 2000
This attorney discipline case came before this Court on a conditional agreement entered
into between the Indiana Supreme Court Disciplinary Commission and an attorney. The
parties submitted an agreed statement of circumstances and proposed that the appropriate sanction
for the agreed misconduct was a private reprimand. This Court approved the
agreement and privately admonished the respondent. The misconduct emanated from the attorney's
effort to secure an emergency child custody order. We hold that lLawyers
seeking emergency relief must provide adequate notice to opposing parties
or comply strictly
with the provisions of Ind.Trial Rule 65(B). For the education of the
bar, we herein recount the facts and circumstances of this case while preserving
the confidential nature of the discipline.
The parties agree that the respondent represented the paternal grandparents of a child
in custody proceedings against the natural parents. At all times relevant to the
custody proceedings, counsel represented the natural parents, and the respondent was aware of
such representation. On May 11, 1998, at a hearing requested by the paternal
grandparents, the court entered an order appointing a guardian ad litem for the
child, who was then in the legal and physical custody of his natural
parents. The guardian ad litem was directed to conduct an investigation of the
childs circumstances and report thereon to the court.
On June 8, 1998, the guardian ad litem filed her report with the
court, recommending that the child be placed in the custody of his paternal
grandparents. The court scheduled the matter for a hearing on June 23, 1998.
On June 9, 1998, the respondent, who had also received a copy
of the guardian ad litems report, prepared and filed a Verified Petition for
Immediate Emergency Custody (hereinafter Verified Petition) signed by the paternal grandparents, and a
proposed order granting relief. By the Verified Petition, the respondent sought an
emergency order placing the child with the paternal grandparents pending a full hearing
of the case. The respondent served a copy of the Verified Petition
on counsel for the natural parents by placing it in the United States
mail on June 9. He did not make any other effort
to contact the opposing party, did not certify to the judge what efforts
he had made to give appropriate notice, and did not certify the reasons
supporting a claim that notice should not be required.
While at the courthouse to file the Verified Petition with the court, the
respondent requested to and did speak with the judge presiding over the case.
The respondent informed the judge of the filing of the Verified Petition
and urged the judge to read the guardian ad litems report. Again,
The the respondent did not notify opposing counsel that he intended to speak
to the judge about the case.
The judge advised the respondent he would read the guardian ad litems report
and that the respondent should return to the court later in the day.
When the respondent returned to the court, he obtained an order signed
by the judge granting emergency custody of the child to the paternal grandparents
pending a full hearing on the merits and granting the natural parents supervised
After obtaining the emergency order, the respondent telephoned counsel for the natural parents,
and, for the first time during the pendency of the Verified Petition, notified
counsel of the emergency proceeding and the fact that the court had already
entered an order transferring custody of the child from the natural parents to
the paternal grandparents.
Indiana Professional Conduct Rule 3.5(b) provides that [a] lawyer shall not communicate
parte with [a judge, juror, prospective juror or other official] except as permitted
A communication is ex parte if made by a
party outside the record without giving other parties notice or an opportunity to
contest. The Commission and the respondent agree that the ex parte
communication between the respondent and the judge occurred in a manner not permitted
by law. Indiana Code 31-17 et seq., (dealing with "Family Law: Custody
and Visitation Rights") contains no affirmative legal authority for obtaining judicial relief without
advance notice to or the presence of the opposing party or its counsel.
In addition, IC 31-17-2-2 provides that proceedings of this sort are to
be governed by the Indiana Rules of Trial Procedure. Emergency judicial relief
is generally governed by Trial Rule 65(B).
Trial Rule 65(B)
A temporary restraining order may be granted without written or oral notice to
the adverse party or his attorney only if:
it clearly appears from specific facts shown by affidavit or by the
verified complaint that immediate and irreparable injury, loss, or damage will result to
the applicant before the adverse party or his attorney can be heard in
(2) the applicant's attorney ce
rtifies to the court in writing the efforts, if
any, which have been made to give notice and the reasons supporting his
claim that notice should not be required.
temporary restraining order granted without notice shall be indorsed with the date
and hour of issuance, shall be filed forthwith in the clerk's office and
entered of record; shall define the injury and state why it is irreparable
and why the order was granted without notice;
The respondent made no attempt to comply with the provisions of T.R. 65(B)
and he made no written certification of the reasons why opposing counsel should
not receive notice. Failure to follow the T.R. 65(B) safeguards renders a
proceeding in which proper notice has not been given to the opposing party
an impermissible ex parte communication by the attorney, and, as such, is prohibited
under Ind.Professional Conduct Rule 3.5(b). The respondents simply discussing scheduling matters with
the judge is not a violation of the rule. However, we conclude
that byseeking emergency custody on behalf of his clients without providing opposing counsel
with seeking emergency relief without providing notice that was reasonably calculated to
give opposing counsel an opportunity to be present during his efforts to obtain
that relief, or and without certifying to the judge his efforts or lack
of effort what efforts, if any, the respondent had made to give notice
or the reasons why notice should not be required, to provide such notice
to opposing counsel, the respondent engaged in an impermissible ex parte contact with
the court, in violation of Prof.Cond.R. 3.5(b).
Although not raised during this proceeding, we note that the judge should inquire
of counsel seeking emergency relief as to whether other parties are represented and
the effort to contact other counsel or unrepresented presented parties. Canon 3(B)(8)
of the Indiana Code of Judicial Conduct specifically prohibits a judge from considering
ex parte communications, except under certain specified circumstances.
A judge who fails
to comply fully with the provisions of T.R. 65(B) engages in ex parte
communication proscribed by the Code of Judicial Conduct. See, e.g., Matter of
Jacobi, 715 N.E.2d 873 (Ind. 1999) (judge found to have violated the Code
of Judicial Conduct by granting a request for a temporary restraining order after
an ex parte conference with one of the parties where the relief was
granted in the absence of certifications required by T.R. 65(B)).
At the heart of our adversarial system of justice is the opportunity for
both sides of a controversy to be fairly heard. Improper ex parte communications
undermine our adversarial system, which relies so heavily on fair advocacy and an
impartial judge. [Such communications] threaten not only the fairness of the resolution at
hand, but the reputation of the judiciary and the bar, and the integrity
of our system of justice. Matter of Marek, 609 N.E.2d 419 (Ind. 1993).
The facts of this case exhibit conduct that the prohibition against ex
parte communication is intended to proscribe. While the mailed notice of the
Verified Complaint was most likely still sitting in the mailbox, the respondent obtained
relief for his client without ever notifying opposing counsel or justifying the reasons
why notice should not be given. Only after obtaining the relief he
sought did the respondent pick up the telephone and advise opposing counsel of
the emergency proceeding. The opposing party had no opportunity to be present
during the conversation between the respondent and the judge regarding the Verified Petition.
The respondents failure to provide notification effectively divested resolution of the
emergency custody issue of the fundamentals necessary for fair advocacy in a contested
proceeding. Further, the proposed order submitted by the respondent and signed by
the judge contained no reasons supporting any claim that notice to the adverse
party should not have been given.
The respondent and the Commission point out that, based on allegations of abuse
raised in the guardian ad litems report, the respondent believed in good faith
that he was acting in the childs best interest and that a true
emergency existed. While the respondents efforts to obtain judicial protection for a
child at risk of harm may be laudable, his failure to comply with
established mandatory procedures meant to protect the rights of other parties with important
legal interests at stake cannot be condoned. they do not justify
dispensing with mandatory procedures that are meant to protect the rights of other
parties who have important legal interests at stake in a judicial proceeding.
Clearly, respondent should have properly notified properly notified opposing counsel of his intention
to seek immediate emergency judicial relief, or certified to the court his efforts
and any reasons why such notice could not be provided. He
did not and, accordingly, shall be issued has been issued a private reprimand.
Costs of this proceeding are assessed against the respondent.
Throughout this opinion, the term opposing party shall refer to the
opposing party or its attorney.
The term ex parte means on or from one side only.
Blacks Law Dictionary, 5th Ed. (1979) at 517.
As the parties have agreed, we find that the custody matter did
not fall within the scope of T.R. 65(E), dealing with temporary restraining orders
in domestic relation cases.
Those circumstances are:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies
that do not deal with substantive matters or issues on the merits are
(i) the judge reasonably believes that no party will gain a procedural or
tactical advantage as a result of the ex parte communication, and,
(ii) the judge makes provision promptly to notify all other parties of the
substance of the ex parte communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the
law applicable to a proceeding before the judge if the judge gives notice
to the parties of the person consulted and the substance of the advice,
and affords the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel and others whose function
it is to aid the judge in carrying out the judges adjudicative responsibilities,
or with other judges.
(d) A judge may, with the consent of the parties, confer separately
with the parties and their lawyers in an effort to mediate or settle
matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when
authorized by law to do so.