Summary
The Supreme Court of Indiana held that an attorney violated Indiana Professional Conduct Rule 3.5(b) by seeking emergency custody and other relief from a judge without providing notice to the opposing party or certifying efforts to give notice and reasons notice should be excused. The Court imposed a public reprimand.
Topics
Practice areas
Questions Presented
- Whether Ettl's presentation of an emergency custody and provisional-relief petition to the trial judge without notice to the husband, and without the written certification required by Trial Rule 65(B)(2), constituted a prohibited ex parte communication in violation of Indiana Professional Conduct Rule 3.5(b).
- What sanction was appropriate for the violation.
Holdings
- Presenting the emergency custody and provisional-relief petition to the trial judge without notice to the husband constituted a prohibited ex parte communication in violation of Indiana Professional Conduct Rule 3.5(b).
- A public reprimand was the appropriate sanction for the prohibited ex parte communication.
Key quotations
“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.” (851 N.E.2d at 1260)
“If the respondent had attempted to notify the husband, but was not able to locate him, then he should have certified, in writing, to the judge the efforts that he had made in that attempt.” (851 N.E.2d at 1261)
Factual background
Ettl represented a wife in a dissolution of marriage after she obtained a protective order barring her husband from the marital residence. With the dissolution petition, Ettl filed a petition seeking provisional relief and an emergency custody order without notice to the husband. Although the dissolution petition identified two addresses where the husband could be served, Ettl made no effort to notify him and did not certify to the trial court either efforts to provide notice or reasons why notice should not be required.
Procedural history
A hearing officer appointed under Indiana Admission and Discipline Rule 23 conducted a hearing and concluded that the Commission failed to meet its burden of proof. The Commission filed a petition for review, Ettl filed a response, and the Commission replied. The Indiana Supreme Court reviewed the matter de novo, determined that Ettl engaged in prohibited ex parte communication, and imposed a public reprimand.