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|FOR THE RESPONDENT |FOR THE INDIANA SUPREME COURT |
| |DISCIPINARY COMMISSION |
| | |
|James H. Voyles |Donald R. Lundberg, Executive |
|Indianapolis, IN |Secretary |
| |David B. Hughes, Trial Counsel |
| |115 West Washington Street, Suite |
| |1060 |
| |Indianapolis, IN 46204 |
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 10S00-0008-DI-495
LARRY O. WILDER )
DISCIPLINARY ACTION
March 19, 2002
Per Curiam
Larry O. Wilder, an attorney admitted to the practice of law in this
state in 1986, who practices in Clark County, knowingly represented a
client adverse to one of his former clients in a matter substantially
related to matters in which he had represented the former client. In an
unrelated matter, he obtained an order granting to his client a temporary
restraining order following an impermissible ex parte meeting with the
judge presiding in the case. For these ethical transgressions, we suspend
him from the practice of law.
This matter is before us upon the duly-appointed hearing officer’s
findings of fact and conclusions of law. The Disciplinary Commission has
petitioned this Court for review of the hearing officer’s findings relative
to Count II of the verified complaint. Where a party petitions this Court
for review of the hearing officer’s report, our review is de novo in nature
and entails a review of the entire record before us. Matter of Manns, 685
N.E.2d 1071 (Ind. 1997), Matter of Young, 546 N.E.2d 819 (Ind.1989).
Within this review context, as to Count I we now find that the
respondent represented Fox and Lindsey both individually and jointly while
the two were an unmarried couple. The representations encompassed various
legal matters. The couple later entered a partnership to run a restaurant.
The respondent provided to them legal services in connection with this
venture. Later, when the couple’s relationship soured, the respondent
represented Fox in the dissolution of their affairs, including the
partnership. In representing Fox, the respondent used papers and documents
pertaining to Lindsey’s business interests and properties which Lindsey
previously had given to him in the course of their attorney-client
relationship.
The Commission charged that the respondent engaged in an impermissible
conflict of interest violative of Prof.Cond.R. 1.7, 1.8(b), and 1.9.[1]
The hearing officer found only that the respondent violated Prof.Cond.R.
1.9.
Professional Conduct Rules 1.7 and 1.8 deal with conflicts of interest
that may arise concerning clients a lawyer has simultaneously, whereas
Prof.Cond.R. 1.9 addresses conflicts of interest arising between a lawyer’s
present and former clients. The hearing officer found that the respondent
first represented both Fox and Lindsey; then, during the dissolution of
their legal affairs, chose to represent Fox in matters directly adverse to
Lindsey. At that point, Lindsey became the respondent’s former client.
There is nothing in the record indicating that Lindsey was the respondent’s
client following Lindsey’s break from Fox. Accordingly, the respondent
violated Prof.Cond.R. 1.9(a) by representing Fox in the same or a
substantially related matter in which Fox’s interests were materially
adverse to the interests of the respondent’s former client, Lindsey, where
there is no indication that Lindsey consented to the adverse
representation. In so representing Fox, the respondent used information
relating to his representation of Lindsey to the disadvantage of Lindsey
under circumstances not permitted by Prof.Cond.R. 1.6 and 3.3, in violation
of Prof.Cond.R. 1.9(b).
The Commission also charged that the respondent’s conduct in Count I
violated Prof.Cond.R. 4.4, which prohibits lawyers from using means that
have no substantial purpose other that to embarrass, delay, or burden a
third person, and Prof.Cond.R. 8.4(b), which prohibits lawyers from
engaging in criminal acts that reflect adversely on their honesty,
trustworthiness, or fitness as lawyers in other respects. Both of these
charges arose from allegations made by Lindsey against the respondent. The
hearing officer found that Lindsey (and Fox as well) were of “limited
credibility” and therefore concluded that the Commission had failed to
prove these charges by clear and convincing evidence. The Commission did
not petition for review of this adverse finding, and we hereby adopt the
hearing officer’s findings as to the two charges.
Pursuant to Count II, we now find that during relevant times, the
respondent was the town attorney for Utica, Indiana. On August 12, 1998,
in his capacity as counsel for the town of Utica, the respondent prepared a
declaratory judgment complaint and a request for temporary injunction
seeking that the Clark County Commissioners be enjoined from replacing the
town of Utica’s appointment to a certain local board. The respondent
completed the complaint sometime after 4:00 pm. It was prepared for filing
in the Clark Superior Court No. 1, where Judge Jerry Jacobi presided. The
respondent’s appearance indicated that copies of the pleadings had been
served either “in person” or by “First Class Mail.” At about the same
time, the respondent instructed his secretary to take an unfiled copy of
the pleadings and unsigned proposed order to the office of the attorney for
the Clark County Commissioners, which was located two blocks from the
respondent’s office. The secretary delivered the papers to a “dark haired”
woman in the commissioners’ attorney’s office.
Meanwhile, sometime after 5:00 pm, the respondent filed the pleadings
and met with the judge. The judge signed the temporary injunction order.
The next morning, the respondent’s secretary delivered copies of the signed
order to the commissioners and their attorney.
This Court found that Judge Jacobi violated Canons 1, 2(A), and
3(B)(2) of the Code of Judicial Conduct for his role in this very same
incident. Matter of Jacobi, 715 N.E.2d 873 (Ind. 1999).[2] We suspended
him for three days for those violations.
The Commission charged that the respondent violated Prof.Cond.R. 3.5
by communicating ex parte with a judge when not permitted by law to do so.
It also charged that he violated Prof.Cond.R. 8.4(f) by knowingly assisting
a judge in conduct that violated the Code of Judicial Conduct. The
hearing officer concluded that Ind.Trial Rule 65 (governing notice and
hearings for temporary restraining orders) “specifically permits an
attorney to secure a temporary restraining order without notice to an
adverse party,” and, accordingly, found no misconduct.
Trial Rule 65(B) provides, in relevant part:
[a] temporary restraining order may be granted without written or oral
notice to the adverse party or his attorney only if:
(1) 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 opposition; and
(2) 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 his claim that notice should not be required.
While it is true that T.R. 65(B) permits the granting of a temporary
restraining order without notice, it only allows such grant under certain
specified circumstances. It is true that the respondent sent his secretary
to opposing counsel’s office with copies of the pleadings at about the same
time that the respondent was meeting with the judge to have the TRO order
signed, but that act cannot be said to have been calculated to provide
opposing counsel with meaningful notice. It is also clear that the
respondent did not accomplish the steps necessary to permit dispensing with
notice to the adverse party prior to seeking an ex parte TRO. He did not
show that immediate and irreparable injury, loss, or damage would result
before the commissioners and their attorney could be notified. He also
failed to certify to the court in writing the efforts he made to give
notice or the reasons supporting any claim that notice should not be
required. Accordingly, we find that the respondent violated Prof.Cond.R.
3.5 when he obtained the ex parte order of temporary injunction from Judge
Jacobi without complying with the provisions of T.R. 65(B). We find
further that the respondent violated Prof.Cond.R. 8.4(f) by assisting Judge
Jacobi in conduct that violated the Code of Judicial Conduct.
The respondent would have us believe that by instructing his
secretary to personally deliver a copy of the unfiled TRO petition and
proposed order to opposing counsel’s office at about the same time the
respondent was meeting with the judge satisfied the notice requirements
contained in T.R. 65(B). However, the hearing officer’s findings indicate
that opposing counsel did not learn of the respondent’s pleading on August
12. On August 16 (the next date opposing counsel was in his office), he
was unable to determine whether any of the copies of the pleadings had
arrived on August 12. While the pleadings were being walked to opposing
counsel’s office to be delivered to persons unknown, the respondent was
contemporaneously meeting ex parte with the judge to obtain relief. This
incident is remarkably similar to that in another case where we found an
impermissible ex parte contact. See Matter of Anonymous, 729 N.E.2d 566
(Ind. 2000) (lawyer mailed petition for emergency custody to opposing
counsel, then walked to courthouse and met with judge to get relief
sought). Because such last-minute delivery of the papers to opposing
counsel is not adequate notice, the respondent was required to satisfy the
conditions for relief with no notice; i.e., claim risk of immediate and
irreparable loss and include a certificate regarding notice or lack
thereof. He failed to do either.
We must now determine an appropriate sanction for the respondent’s
misconduct.
We suspended Judge Jacobi for three days for this incident. We conclude
that the respondent should suffer the same discipline.
It is, therefore, order that the respondent, Larry O. Wilder, is
suspended from the practice of law for a period of three (3) days,
effective April 22, 2002. At the conclusion of that period, he shall be
automatically reinstated to the practice of law in this state.
The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d), to provide a copy of this Order to
the Hon. Leslie Shively, 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 clerks of the United States
Bankruptcy Courts in this state with the last known address of respondent
as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.
-----------------------
[1] Professional Conduct Rule 1.7 provides:
(a) A lawyer shall not represent a client if the representation of
that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not
adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of
that client may be materially limited by the lawyer's responsibilities to
another client or to a third person, or by the lawyer's own interests,
unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after consultation. When representation of
multiple clients in a single matter is undertaken, the consultation shall
include explanation of the implications of the common representation and
the advantages and risks involved.
Professional Conduct Rule 1.8(b) provides:
(b) A lawyer shall not use information relating to representation of
a client to the disadvantage of the client unless the client consents after
consultation, except as permitted or required by Rules 1.6 and 3.3.
Professional Conduct Rule 1.9 provides:
A lawyer who has formerly represented a client in a matter shall not
thereafter:
(a) represent another person in the same or a substantially related
matter in which that person's interests are materially adverse to the
interests of the former client unless the former client consents after
consultation; or
(b) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 or Rule 3.3 would
permit or require with respect to a client or when the information has
become generally known.
[2] In Jacobi, we found:
The parties agree that Respondent violated Canon 1 of the Code of Judicial
Conduct, which generally requires judges to uphold the integrity and
independence of the judiciary; Canon 2(A), which generally requires judges
to avoid impropriety and the appearance of impropriety, to respect and
comply with the law, and to act at all times in a manner which promotes the
public's confidence in the integrity and impartiality of the judiciary;
and Canon 3(B)(2), which generally requires judges to be faithful to the
law. Matter of Jacobi, 715 N.E.2d 873, 875.