In the Matter of Phillip R. Smith , 740 N.E.2d 849 ( 2000 )

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 )
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DISCIPLINARY ACTION
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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.