Indiana Law Review


Survey of the Law of
Professional Responsibility

Charles M. Kidd*

Introduction

The law governing attorneys has a pervasive quality that weaves tightly into
American jurisprudence. It is the one body of law all members ofthe bench and
bar have in common, irrespective of the area of substantive law in which an
individual concentrates his or her practice.

1

Just as rules, rulings, and statutes

change, the ways in which attorneys operate their practices and handle their
clients' matters change. At one time, for example, the use of a contingent fee
agreement with a client was considered only marginally ethical. It was thought
unseemly for a lawyer to take a "cut" of a client's recovery.

2 Views on the
subject changed, however, and the widespread use ofcontingent fee agreements

opened the door for many clients who otherwise could not have afforded the
costs of expensive, protracted litigation.

3 The developing role of contingency
fees represented a clear change in the fabric ofAmerican law in that, by changing
the way in which lawyers practiced, the way in which client matters were
handled changed as well.

This article highlights a number oflegal developments that have had a direct
bearing on the law of professional responsibility. In subtle as well as in overt
ways, regulating lawyer behavior has a noticeable impact on the ways client
matters are handled. New rules and rulings have made it very important that
lawyers keep abreast of changes in the area of professional responsibility to

ensure that their behavior conforms to standards expected of every lawyer.

* Staff Attorney, Indiana Supreme Court Disciplinary Commission. J.D., 1987, Indiana

University School of Law—Indianapolis. The opinions expressed herein are solely those of the
author and do not represent a statement of law or policy by the Indiana Supreme Court, its staff,

or attendant agencies.

1

.

See Ind. Professional Conduct Rule Preamble (2000).

2. See Canons of Professional Ethics of the ABA Canon 13 (1908); see also ABA
Comm. On Prof 1 Ethics and Grievances, Formal Op. 246 (1942).

The purchase of shares of stock in the corporation by the lawyer is a purchase by the

lawyer ofan interest in the subject matter oflitigation to be instituted and conducted by

the lawyer for the purpose ofputting an end to the alleged appropriation by the officers

and directors to their own use ofincome and assets ofthe corporation. A successful suit
would better the value of the stock to the advantage of its holders and so the lawyer

would profit from his purchase, as well as from compensation for his services.

Id.

3. See Restatement (Third) of the Law Governing Lawyers § 35, cmt. b (2000).



922 INDIANA LAW REVIEW [Vol. 34:921

I. Recent Rule Changes

A . The Background ofthe Admission and Discipline Rules

One of the state's primary sources of the law governing lawyer conduct is
Indiana's Rules of Professional Conduct. During the relevant survey period,

there were no changes to the text of this body of law from the prior survey
period. However, significant developments occurred in the procedural rules
governing lawyer disciplinary action, which are important for all members ofthe
bar to understand.

4

Like other rules promulgated by the Indiana Supreme Court, the Indiana
Rules for Admission to the Bar and the Discipline ofAttorneys ("Indiana Rules

for Admission") assist the court in executing its constitutional grant ofauthority

to govern the admission of lawyers to the bar and regulate their conduct once

they are admitted.
5 The Indiana Rules for Admission govern all facets of an

individual lawyer's continued good standing at least as it relates to their
membership in the bar of the Indiana Supreme Court.

For more than thirty years, the procedures used for investigating and
prosecuting lawyer disciplinary actions have been contained in Indiana Rules for

Admission 23

.

6
This rule covers all the features related to the disciplinary

process and includes, inter alia, the "enabling statute" creating the Disciplinary

Commission,
7
the remedies available in cases of lawyer misconduct

8
and the

procedures employed to investigate and prosecute disciplinary actions before the

Indiana Supreme Court.
9

Parts ofrule 23 have many features akin to the Indiana Trial Rules. However,
because lawyer disciplinary actions are sui generis™ the rule outlines all the

steps from the creation of the Disciplinary Commission through the conclusion
of disciplinary action, and beyond.

11
Changes to this rule and the procedures by

4. See Ind. Admission and Discipline Rules (amended 2001 ).

5. See IND. CONST, art. VII, § 4.

The Supreme Court shall have no original jurisdiction except in admission to the

practice oflaw; discipline or disbarment of those admitted; the unauthorized practice

of law; discipline, removal, and retirement ofjustices and judges; supervision of the

exercise ofjurisdiction by the other courts ofthe State: and issuance of writs necessary

or appropriate in aid of its jurisdiction.

Id

6. See ADMIS. Disc. R. 23.

7. See id. § 6.

8. See id. § 3.

9. See id. §10.

10. See IND. CONST, art. VII, § 4.

1 1

.

Disbarred and suspended lawyers have an obligation to see that the client matters under

their control are distributed to other lawyers and turned back over to their clients at the time they

leave the bar. See ADMIN. DISC. R. 23, § 27. In addition, suspended lawyers who eventually seek

reinstatement to the bar must comply with the appropriate provisions of the rule as well. See id.



200 1 ] PROFESSIONAL RESPONSIBILITY 923

which lawyer discipline cases are adjudicated can have a tremendous impact on
the manner and speed with which lawyer discipline takes place. The full text of
the latest round of amendments to this rule follows this article in Appendix A.
The rule has been changed in relevant areas, which deserve a relatively detailed
examination by all members ofthe bar. One change involves an alteration to the
investigatory procedure for grievances,

12
while the other change relates to the

way in which formal disciplinary action is prosecuted. 13

B. Cooperating with an Investigation

During 1998, the Disciplinary Commission's investigatory procedures were
changed to require that lawyers respond to a grievance when such a response was
requested by the Commission's Executive Secretary.

14
Characteristically, most

complaints against lawyers are dismissed at the beginning of the process as

matters which do not raise any substantial question of lawyer misconduct. 15

However, for those grievances that were opened for investigation, the Executive

Secretary's request for a response became a demand for information. 16 Under the
1998 rule changes, if a lawyer failed to respond to a grievance when such a
response was required, the lawyer's failure to respond was a violation ofIndiana
Professional Conduct Rule 8. 1 (b), which required a lawyer to respond to a lawful

demand for information from the Disciplinary Commission. 17 Therefore, an
otherwise meritless, grievance from a client might result in disciplinary action

against a lawyer solely based upon the lawyer's failure (or refusal) to answer the
grievance.

18

Effective January 1, 2001, Admission and Discipline Rule 23 was changed
to require all lawyers "to cooperate with the Commission's investigation, accept

service, comply with the provisions ofthese rules," and claim their certified mail
in person or by agent.

19
Although there is no reported decision in which a lawyer

§§4,18.

12. See id §10.

13. See id §14.

14. See id § 10(a)(2).

15. See, e.g., Indiana Supreme Court Disciplinary Commission, 1999-2000 Annual

Report of the Disciplinary Commission of the Supreme Court of Indiana. For example,

during the most recent annual report for FY 1 999-2000, 1 ,599 grievances were filed against Indiana
attorneys. Of those grievances, 947 were dismissed without further investigation upon a

determination that, on their face, they presented no substantial question of misconduct. See id.

16. See Admis. Disc. R. 23, § 10(a)(2). This section provides, "[i]fthe Executive Secretary

determines that it [the grievance] does raise a substantial question of misconduct, [he shall] send

a copy ofthe grievance by certified mail to the attorney against whom the grievance is filed . . . and
shall demand a written response." Id

1 7. See Ind. Professional Conduct Rule 8.1(1 998).

18. See, e.g., In re Puterbaugh, 716 N,E.2d 1287 (Ind. 1999) (applying the response

requirement in connection with the initial grievance); In re Cable, 715 N.E.2d 396 (Ind. 1999).

19. Admis. Disc. R. 23, §10(e) (effective January 1, 2001).



924 INDIANA LAW REVIEW [Vol. 34:92

1

was disciplined for a generalized lack of cooperation, this is a subject that the
Indiana Supreme Court has examined in the past.

20
In In re McClain,

21
the court

was unequivocal in its belief that cooperation by the lawyer being disciplined
was essential to the process.

As we have held in the context of attorney discipline cases, the party
being investigated has a duty to cooperate in the process. The failure to
cooperate may in itself constitute independent grounds for disciplinary
charges in some instances. It should not need stating to anyjudge in this
State that the same duty of cooperation exists in judicial disciplinary
cases. As the Code of Judicial Conduct makes clear, judges are held to
high standards ofconduct. Further, our ethical rules make it clear that all
judges and attorneys have a duty to cooperate with the investigative

process of a disciplinary agency. . . . [T]he duty to cooperate does not

require an admission ofmisconduct nor does it preclude the advocacy of

a theory of defense which is contradictory to the allegations of
misconduct.

We draw no inference of guilt from Respondent's lack of cooperation
with the discovery process. The Court simply takes this opportunity to
stress that cooperation with the investigative and discovery processes is

expected of any judge under investigation by the Commission and that
in the proper case, the failure to cooperate could in itself constitute

actionable misconduct. On the other hand, Respondent's uncooperative
conduct and delay tactics crossed the line between legitimate discovery

dispute and the sort of conduct which is not only antithetical to

Respondent's obligations as an attorney and judge, but calls into

question the integrity ofthe judicial disciplinary process.
22

As an aside, Admission and Discipline Rule 2 has long imposed a duty on
lawyers to keep the clerk ofthe supreme court informed ofany change in his or

her name and address.23 Under Admission and Discipline Rule 23, the Clerk (as
the keeper of the Roll of Attorneys) is impliedly designated as the agent for

service ofprocess for lawyers who fail to update their listing on the Roll.24 Rule
23 states that a lawyer's failure to provide current information to the Clerk shall

be a waiver of service by the lawyer,
25
and the Clerk can create an affidavit of

constructive service, if necessary, for the prosecution of disciplinary action

20. See In re Crenshaw, 708 N.E.2d 859 (Ind. 1 999) (noting that lawyers have a heightened

obligation to comply with demands for information from the Disciplinary Commission that exceeds

the obligation imposed upon nonlawyer citizens).

21. 662 N.E.2d 935 (Ind. 1996).

22. Id. at 940-41 (internal citations omitted).

23. See ADMIS. Disc. R. 2.

24. See ADMIS. Disc. R. 23, § 12(0-

25. See id. § 10(e).



200 1 ] PROFESSIONAL RESPONSIBILITY 925

against the lawyer.
26

Also effective January 1 , 200 1 , a lawyer who fails to respond to a grievance
can be suspended from the bar until the lawyer submits a response.

27
If the

lawyer fails to respond for six months, the lawyer's suspension can be converted

into an indefinite suspension from the practice oflaw.
28 An indefinite suspension

requires the lawyer to go through a formal reinstatement proceeding before

returning to practice.
29

Such reinstatement requires the lawyer to formally

petition the Indiana Supreme Court, take and pass the Multistate Professional
Responsibility Examination, and demonstrate his or her fitness to return to

practice at a formal hearing.
30

Moreover, the attorney must still submit a
response to the initial grievance that began the process.

31

Except for suspensions based on felony convictions,
32

failing to pay annual

registration fees
33

or remaining current on continuing legal education

requirements,
34

this rule change represents the first time that a lawyer can be

suspended from the practice of law prior to the institution offormal disciplinary

action. Obviously, if the misconduct complained of in the grievance is serious

enough to warrant disciplinary action in its own right, such a refusal to respond
could significantly accelerate the time it currently takes to start and pursue

formal disciplinary action. In short, lawyers who engage in misconduct and
attempt to stonewall the process will now come to the attention of the supreme
court much sooner than they have in the past.

C. An Answer Is Required to the Disciplinary Charge

For the first time in the long history of Admission and Discipline Rule 23,

a formal Answer is required to the Verified Complaint for Disciplinary Action.
35

Under the prior version of Admission and Discipline Rule 23, a lawyer facing
disciplinary action could decide whether or not to formally answer the Verified

Complaint.
36

Ifa lawyer chose not to file an Answer, that refusal was treated as
a general denial of the allegations contained in the Verified Complaint and the

26. See id § 12(f).

27. Seeid.§ 10(f)(2).

28. See id. § 10(f)(3).

29. See id § 4(c).

30. See id § 4(a), (b)(l)-(9).

3 1

.

See id. § 4(b)(4). This section requires the lawyer seeking reinstatement to demonstrate

remorse for the conduct which led to his or her suspension. See id. It should stand to reason that

a lawyer would not be able to make such a demonstration without resolving the matter for which

he was suspended in the first place.

32. See id. §11.1.

33. See idj 21(e).
34. See Admis. DISC. R. 29, § 10.

35. See ADMIS Disc. R. 23, § 14(a).

36. See id.



926 INDIANA LAW REVIEW [Vol. 34:921

Disciplinary Commission was required to prove all the allegations made.37

Effective January 1 , 2001 , a formal Answer is now required under similar terms
as applied in the Rules ofTrial Procedure.

38 The Answer must squarely meet the
allegations made in the Verified Complaint with affirmative admissions or
denials ofthe facts alleged therein.

39
Should a lawyer fail to file an Answer, the

allegations contained in the Verified Complaint can be deemed admitted and the
Disciplinary Commission is then free to apply to the supreme court for a
judgment on the Complaint.

40
Again, this amendment is akin to the default

provision contained in the Rules ofTrial Procedure.
41 As with Rule 23's change

requiring a response to the initial grievance against the lawyer, this additional

provision should have the effect of speeding up the disciplinary process by
forcing a narrowing ofthe issues very early in the disciplinary process instead of
waiting for their development at (or very close to) the trial of the action.

The amendment allows lawyers to file their answer thirty days after service
ofthe Verified Complaint.

42
However, the new rule amendment provides that the

lawyer may take one extension oftime, as of right, for an additional thirty days,
ifnotice ofsuch an extension is filed with the court in writing within the original

thirty day time period.
43

Attorneys who practice in the civil law will recognize
these amendments as cognates of the provisions used in the trial rules.

II. Ex Parte Communication Between Lawyers and Judges

The lawyer's role as advocate has definite limits and can have an effect on
the way in which issues of substantive law are presented to tribunals.44 These
limitations on advocacy are matters falling directly under the heading of

professional regulation. During the relevant period, two matters decided by the

Indiana Supreme Court illustrate one of the frustrating issues advocates face:
communication between an opponent lawyer and the judge presiding over the

contested matter.
45 Ofcourse, there are circumstances in the law when exparte

37. See id.

38. Compare IND. TRIAL RULE 8(B) ( 1 998).

39. See ADMIS. DISC. R. 23, § 14.

40. See id. § 14(c).

41. See T.R. 55(B).

42. See ADMIS. Disc. R. 23, § 14(a).

43. See id.

44. See IND. PROFESSIONAL CONDUCT RULE 3.3 (1998). For example, Rule 3.3 requires a

lawyer to disclose facts to a tribunal when necessary to prevent a crime or fraud on the court. The

same rule requires a lawyer to advise the court ofcontrolling authority in a controversy whether or

not that authority is favorable to the client. See id.

45. See PROF. COND. R. 3.5. This rule provides "A lawyer shall not; (a) seek to influence a

judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex

parte with such a person except as permitted by law; or (c) engage in conduct intended to disrupt

a tribunal." Id.



200 1 ] PROFESSIONAL RESPONSIBILITY 927

communication between the judge and a lawyer are permitted.
46

These allowed

exparte communications usually involve issues where time is ofthe essence, and

unless immediatejudicial intervention is given, some irreparable harm may result
to one of the litigants.

47
It is also essential in such situations that the party

against whom relief is sought be given notice when practicable.48 As temporary
restraining orders law has developed, the adequacy of notice to an opponent is

a fact that should be carefully scrutinized by the presidingjudge before rendering

a decision affecting an absent party's interests.
49

Cases finding ex parte

communications violations can be classified into two categories: cases in which

the exparte communication is prohibited generally,
50
and cases in which the ex

parte communication may be otherwise proper, but it is done in such a way to
deprive the opposing party oftheir opportunity to be heard, while also providing

the presidingjudge with inadequate or false information, resulting in a flawed or

needlessly injurious decision.
51

Two rulings issued during the survey period highlight this second category
of improper communication. First, in In re Warrum52 the respondent, an
Evansville lawyer, represented a woman who was divorced from her husband in
Utah in 1985. The Utah court entered orders regarding custody, visitation and

child support, providing that the father, a Utah resident, was ordered to pay child
support offifty dollars per month. He remained in Utah and the mother and child
moved to Evansville. After the father failed to pay support, the mother received
Assistance for Dependent Children payments and enlisted the Vanderburgh

County Prosecutor's office to assist in collecting the unpaid support payments.

In 1991, she petitioned the Utah trial court for an increase in the fifty-dollar per

month child support award. In 1992, while the Utah matter was pending, the
mother hired the respondent to secure additional support and restrict her ex-

husband's visitation with the child.
53

The respondent filed a complaint in the Vanderburgh SuperiorCourt seeking
orders on child support, child custody and visitation "or a modification

thereof."
54 The complaint did not mention the Utah case or any of the orders

from the Utah court governing custody, visitation, and child support. It likewise

failed to mention that the Utah court was considering a modification at the time

46. One ofthe best known examples is the application foratemporary restraining order under

Trial Rule 65(B).

47. See id.

48. See id.

49. See id.

50. See In re Terry, 394 N.E.2d 94 (Ind. 1979) (finding attorney contact with prospective

jurors violates ex parte rules).

51. See In re LaCava, 615 N.E.2d 93 (Ind. 1993) (finding attorney contacted physician

member of medical review panel in medical malpractice action and influenced physician's

determination before panel officially rendered decision).

52. 724 N.E.2d 1097 (Ind. 2000).

53. See id. at 1098.

54. Id.



928 INDIANA LAW REVIEW [Vol. 34:92

1

the Indiana action was filed. Although the respondent knew ofthe Utah decree
and orders, he took no action to familiarize himselfwith the details or status of
the Utah case.

55

When the father learned ofthe Indiana action, he contacted the respondent
by phone and provided information about his employment and income. The
father's Utah lawyer also contacted the respondent inquiring as to why there was
an Indiana proceeding. The respondent did not reply, and when the Indiana case
came to a hearing, the respondent and the mother appeared but the father did not.
The respondent did not mention to the Vanderburgh Countyjudge the existence
of the Utah case or its status, and, as a result, the Indiana court adopted the
respondent's proposed entry computed in accordance with Indiana's child
support guidelines. The Indiana order commanded the father to pay $77.40 per
week for the child and restricted his visitation rights to exclusively supervised
visits with his child. At that point, the father had twojudgments governing child
support and visitation with his child.

56

No one in Indiana notified the Utah authorities about the Indiana decree, and
the father continued to pay his fifty dollar per month child support in accord with
the prior Utah order. As a result, the father began to accumulate a child support
arrearage under the Indiana order. Once the Vanderburgh County Prosecutor's
office learned of the Indiana order, it intercepted at least three of the father's

federal income tax refund checks to satisfy the Indiana arrearage. The father
complained to Utah authorities that he was in compliance with the Utah order
and that Indiana authorities were dunning him for additional amounts beyond
those he was ordered to pay. An investigation began in both Utah and Indiana
with Utah officials inquiring into why the Indiana order had been issued when
there had been no change injurisdiction. Indiana authorities questioned why the
Utah support award was so low. As a result ofthe investigation, the Governor's
offices from each state, a United States Senator, and Indiana's Family and Social

Services Administration got involved in a dispute over jurisdiction and the

accurate amount ofchild support due. Officials from both states met in Chicago
for an unsuccessful mediation session in which both sides claimed the right to

govern the dispute. In the end, the Utah court modified its order increasing the

amount of support, while Indiana authorities still claimed that a valid Indiana
arrearage existed. The Vanderburgh County Prosecutor's office eventually
moved to dismiss the Indiana judgment.57

In imposing a public reprimand on the respondent, the Indiana Supreme
Court described the problems that cascaded from the respondent's failure to

simply and clearly inform the court in Vanderburgh County of the Utah

proceedings governing the divorce.

The respondent's unfortunate failure to disclose the Utah decree to the
Indiana court was completely contrary to the letter and spirit ofIndiana's

55. See id.

56. See id. at 1098-99.

57. See id. at 1099.



2001] PROFESSIONAL RESPONSIBILITY 929

Uniform Child Custody Jurisdiction Law, which was to "[a]void
litigation of custody decisions of other states and this state so far as

feasible," and to "[facilitate the enforcement of custody decrees of

other states; and [foster] mutual assistance between the courts of this

state and those ofother states concerned with the same child." That the
respondent's actions so thoroughly frustrated the purpose ofthe UCCJL,
wasted judicial resources, and led to an interstate conflict clearly

demonstrates that he engaged in conduct prejudicial to the administration

of justice. Accordingly, we find that the respondent violated
Prof.Cond.R. 8.4(d).

* * * *

The evidence clearly and convincingly demonstrates that the respondent
knew of the Utah decree at the time he litigated the Indiana case, but
neglected to advise the Indiana court of it or it's terms. By that failure,
the respondent deprived the Indianajudge ofthe opportunity to apply the

provisions set forth in Indiana's UCCJL, cause unnecessary litigation in
this state, and set the stage for an interstate conflict ultimately

consuming the resources ofhigh state officials. Because of his insult to
the administration ofjustice and its significant consequences in this case,
we conclude that a public reprimand is appropriate.58

In another domestic relations matter, a trial judge agreed to an admonition

by the Indiana Commission on Judicial Qualifications for his part in a case
involving exparte communications. In the Public Admonition ofthe Honorable
Fredrick R. Spencer, Madison Circuit Court?9 the judge presided over some
post-dissolution wrangling involving a foreign divorce decree.

In Spencer, the mother and father of two children were divorced in Texas

with the father being awarded custody of the children. The father eventually
moved to Florida and the mother moved to Indiana. In June 1996, the mother
filed an emergency petition for custody in a Madison Superior Court with Judge
Brinkman presiding. Judge Brinkman initially granted the petition and set the
case for hearing. He eventually deferredjurisdiction to Florida who had, by then,
asserted jurisdiction over the decree under the Uniform Child Custody

Jurisdiction Act (UCCJA). During a July 1998 visit to Florida, the mother and

father executed a joint stipulation of permanent custody and visitation. Under
that agreement, the mother had summer visitation with the children.60

Thereafter, she brought the children back to Indiana and enrolled them in

school without the father's permission. In August of that year, a Florida judge

58. Id. (internal citation omitted).

59. Public Admonition of the Honorable Fredrick R. Spencer, Madison Circuit Court, slip

op. (Dec. 28, 1999). This ruling is public, but not published in the West's Reporter Series. Copies

can be obtained from the Indiana Commission on Judicial Qualifications.

60. See id. at 1-2.



930 INDIANA LAW REVIEW [Vol. 34:921

awarded the father permanent custody and gave the wife summer visitation. The
mother then filed another emergency petition for change of custody in Judge
Spencer's court claiming that the stipulation the mother signed in Florida was
made under duress. Unlike the petition in Warrum, this petition fully set out the
steps by which Florida had accepted jurisdiction and that the children were
enrolled in school and lived in Madison County. No real emergency was alleged
and Judge Spencer granted relief to the mother without giving the father an
opportunity to be heard. Upon learning ofthe Madison Circuit Court action, the
Florida judge attempted to reach Judge Spencer by telephone on more than one
occasion. Judge Spencer, however, did not return the messages as he had a duty

to do under the UCCJA.61

The father, on the strength ofthe Florida order, came to Indiana, removed the
children and returned to Florida with them. The mother, on the strength of the
Madison Circuit Court order, went to Florida and surreptitiously took the
children from the father's residence and brought them back to Indiana. In
December, a hearing was held in the Madison Circuit Court in which Judge
Spencer determined he hadjurisdiction over the matter despite all the indications

of Florida's interest and jurisdiction. It was not until September 1999 when the
Indiana Court of Appeals ruled that the Judge erred in not granting the father's

motion to dismiss on jurisdictional grounds that the ordeal was resolved.62

In the agreed admonition, the Commission relied directly on the dangers
associated with receiving exparte information and relying thereon to grant relief.

The Commission admonishes Judge Spencer for entertaining and
granting an exparte petition for change ofcustody, without notice to the

custodial father. Although the petition purported to present an

emergency not requiring notice and hearing, in the Commission's view

the petition merely reflected a standard dispute between divorced

parents, one desirous ofobtaining a change in the custodial relationship.

Therefore, it should have been treated as any civil pleading, where the

filing would be noticed and the parties would be given an opportunity to

be heard. Judge Spencer is admonished further for failing to

communicate with the Florida judge who had assumed jurisdiction and
had issued an order granting custody to the father, and whose office
attempted to contact Judge Spencer. This communication is required

under the Uniform Child Custody Jurisdiction Act, and is a requirement

designed to help prevent the very circumstances which occurred here,

where a request was made to an Indiana court to grant relief when
another state was exercising jurisdiction. Judge Spencer's failure to

acknowledge Florida's claim of jurisdiction is exacerbated by his

knowledge that, a year earlier, the mother had filed a similar

"emergency" petition in another Madison County Court, with Judge

Brinkman presiding, and that Judge Brinkman ultimately had deferred

61. See id. at 2.

62. See id. (citing Rios v. Rios, 717 N.E.2d 187 (Ind. Ct. App. 1999)).



200 1 ] PROFESSIONAL RESPONSIBILITY 93

1

jurisdiction to Florida.
63

Although both cited cases involve foreign divorce decrees, child support and

custody awards, they highlight a problem with exparte communication and relief

that go beyond the facts ofthe recited decisions. The presiding judge must rely
on the information provided by the lawyer in order to fashion a remedy that is
appropriate on the facts of a given case.

64
In Warrum, the lawyer was found to

have violated Indiana Professional Conduct Rule 8.4(d) which governs conduct
prejudicial to the administration of justice.

65
In Spencer, the judge was

admonished for engaging in conduct contrary to Canon 3(BX8) of the Code of
Judicial Conduct that requires ajudge to accord to every person who has a legal
interest in a proceeding, or that person's lawyer, the right to be heard according

to law.
66 The rule goes on to state, with limited exceptions, that "[a] judge shall

not initiate, permit, or consider ex parte communications, or consider other

communications made to the judge outside the presence of the parties,
concerning a pending or impending proceeding."

67
Furthermore, the

Commentary to the Canon provides:

Certain ex parte communication is approved by Section 3B(8) to
facilitate scheduling and other administrative purposes and to

accommodate emergencies. In general, however, a judge must
discourage ex parte communication and allow it only ifthe criteria stated

in Section 3B(8) are clearly met. Ajudge must disclose to all parties all
ex parte communications . . . regarding a proceeding pending or

impending before the judge.
68

The cases decided during the survey period illustrate the unique and
delicately balanced position judges have in our system of adjudication. As
arbiters of disputes they are limited under the Code of Judicial Conduct to
consider only the evidence that comes before them in rendering a fair and
impartial decision.

69 As public officials, judges are community leaders and are
expected to take an active involvement in law related issues important to the

community they serve.
70
The problem with the exparte communications at issue

63. Id&tU.

64. See In re Mullins, 649 N.E.2d 1024 (Ind. 1995). The respondent lawyer initiated

guardianship proceedings in one county without advising the judge that a similar parallel

proceeding had been pending for some months in an adjoining county. See id.

65. See Ind. Professional Conduct Rule 8.4(d). This rule provides: "It is professional

misconduct for a lawyer to . . . engage in conduct prejudicial to the administration ofjustice." Id.

66. See IND. JUDICIAL CONDUCT Canon 3(B)(8).

67. Id

68. Id cmt. 3.

69. See JUD. Canon 2. The canon provides that, "Ajudge shall respect and comply with the

law and shall act at all times in manner that promotes public confidence in the integrity and

impartiality of the judiciary." Id.

70. See JUD. Canon 2(D). This section ofthe canon permits ajudge to "lend the prestige of



932 INDIANA LAW REVIEW [Vol. 34:921

in the survey cases may not be common, but it certainly is nothing new. The
court of appeals was forced to comment on the dilemma faced by a judge who,
doing otherwise meritorious work the for community, was placed in an untenable
position by hearing evidence from a prospective litigant outside the presence of
the potential opponent. In Stivers v. Knox County Department of Public
Welfare,

71
the court of appeals observed:

Although there is evidence which reflects that thejuvenile courtjudge's
participation in the meetings was passive, in that he made no
recommendations or was limited in discussions, we are of the opinion
that his presence at such times was not permissible ifhe intends to be the
judge on the case under discussion.

At the worst, this situation is a classic example of an ex parte
communication contemplated and prohibited by Canon 3(A)(4); a
prospective litigant discussing potential litigation as well as the

evidence, admissible or inadmissible, in support ofthat litigation without

the presence ofthe other party and all done in the presence ofthejudge
who will preside over that litigation when it is filed constitutes an
intolerable situation. At the best, which is still unacceptable, the
situation is one which has every appearance of impropriety and detracts

strongly from a mannerwhich promotes the integrity and the impartiality
ofthe judiciary.

72

Such prohibitions against ex parte communications with a judge have a long
history in the law. In the original 1908 Canons ofthe American Bar Association
on which modern codes of professional behavior are based, Canon 3 provided,
in part:

A lawyer should not communicate or argue privately with the Judge as
to the merits of a pending cause, and he deserves rebuke and

denunciation for any device or attempt to gain from a Judge special

personal consideration or favor. A self-respecting independence in the
discharge of professional duty, without denial or diminution of the

courtesy and respect due the Judge's station, is the only proper

foundation for cordial personal and official relations between Bench and
Bar.

73

Likewise, the 1908 Canons of Judicial Ethics contained a cognate provision in

Judicial Canon 1 6 that provided:

A judge should discourage ex parte hearings of applications for
injunctions and receiverships where the order may work detriment to

the judge's office to advance the public interest in the administration ofjustice." Id.

71

.

482 N.E.2d 748 (Ind. Ct. App. 1985).

72. Id. aX75\.

73. Canons of Professional Ethics of the ABA Canon 3 ( 1 908).



2001] PROFESSIONAL RESPONSIBILITY 933

absent parties; he should act upon such exparte applications only where
the necessity for quick action is clearly shown; if this be demonstrated,

then he should endeavor to counteract the effect of the absence of

opposing counsel by a scrupulous cross-examination and investigation

as to the facts and the principles of law on which the application is

based, granting reliefonly when fully satisfied that the law permits it and
the emergency demands it. He should remember that an injunction is a
limitation upon the freedom of action of defendants and should not be
granted lightly or inadvisedly. One applying for such reliefmust sustain
the burden of showing clearly its necessity and this burden is increased

in the absence of the party whose freedom of action is sought to be
restrained even though only temporarily.

74

These constraints on seeking ex parte have been universally accepted by every

state's bar and remain a regular subject for ethics opinions around the country.
73

An example includes:

[A lawyer in a divorce case may] seek an ex parte order to seal a safe
deposit box so that items will not be removed pending a hearing [I]n
an ex parte proceeding the lawyers shall inform the tribunal of all

material facts known to the lawyer that will enable the tribunal to make
an informed decision whether or not the facts are adverse.

76

These were the mistakes that led to the respondent lawyer's discipline in

Warrum?1 When seeking relief without the presence of the other party, the
lawyer must give the presiding judge not only complete information about the

case he represents, but also information about the opponent or the opponent's

counsel and an indication that they have been served with the necessary papers.
78

Even if such service is unsuccessful, it is incumbent on the lawyer to inform the
judge ofthe efforts made to serve the opposing party with notice.79 Conversely,
thejudge must inquire about service on the opposing side and satisfy himselfthat

the relief sought is appropriate and warranted.
80 As the Warrum and Spencer

matters show, profound consequences can flow from the pursuit oiexparte relief

improperly sought and improvidently granted.

III. Ethics and the Prosecutor's Function

During this period, the Indiana Supreme Court once again addressed an
important ethics issue in relation to the execution ofthe duties of a prosecuting

74. Canons of Judicial Ethics of the ABA Canon 16(1 908).
75. See generally ABA/BNA LAWYERS' MANUAL ON PROFESSIONAL CONDUCT § 61:801.
76. Pennsylvania State Bar Association, Ethics opinion 96-153, Nov. 12, 1996.

77. See In re Warrum, 724 N.E.2d 1097 (Ind. 2000).

78. See id. at 1099-1 100; see also IND. PROFESSIONAL CONDUCT RULE 3.3.

79. See PROF. COND. R. 3.3.

80. See id; see also IND. TRIAL RULE 65(B) (governing the standards for obtaining a

temporary restraining order without the presence of the opposing party).



934 INDIANA LAW REVIEW [Vol. 34:92

1

attorney and his deputies. In the case ofJohnson v. State™ the court accepted an
interlocutory appeal from the Marion Superior Court to address the issue ofthe
limits on a prosecutor's discretion to charge an individual with crimes.82

In Johnson, the defendant was an adolescent guidance specialist working in
alcohol and drug treatment at Fairbanks Hospital in Indianapolis. During a
routine room check in 1998, Johnson allegedly had intercourse with a sixteen
year old detainee at the facility. About two weeks later, Johnson was charged
with sexual misconduct, a class "D" felony. On September 8, 1998, the trial
court required the State to give thirty days notice of its intent to use evidence of
prior misconduct by Johnson. The State waited until April 23, 1999 when they
filed their final witness and exhibit list to identify the Rule 404(b) evidence as

four other female Fairbanks Hospital patients.
83

Johnson filed a motion in limine and was successful in getting the testimony
ofthe other four women excluded due to the late identification by the State. The
prosecutor then responded with a motion to dismiss the charge, which the trial
court also granted. Johnson resisted the dismissal and objected in writing, stating

that he was ready for trial and that the State's dismissal should be with prejudice.
On May 5, 1999, the State refilled the original charge and added ten more counts.
Johnson moved to dismiss all ofthe charges, and after the trial court denied his
motion, took an interlocutory appeal. The trial court was affirmed by
memorandum decision by the court of appeals.84

In accepting the appeal in Johnson, the supreme court faced a situation that

was similar, but not identical, to the case of Davenport v. State}5 In Davenport,
the criminal defendant was charged originally with murder. Four days before his
trial, the State filed a motion to amend the original charge to include charges of
felony murder, attempted robbery, and auto theft. The trial court denied the
motion. The next day, the State dismissed the murder charge and refiled it along
with the three new charges. The defendant filed a motion to dismiss and, after
a hearing, the trial court denied the motion and allowed Davenport's case to

proceed to trial.
86

Davenport was convicted of all the crimes charged, but on
transfer, the supreme court reversed all but the original murder charge. In

holding that the prosecutorabused his discretion in refiling the charges in another

court, the supreme court said:

While courts have allowed the State significant latitude in filing a second

information, the State cannot go so far as to abuse its power and
prejudice a defendant's substantial rights. In the present case, the State

received an adverse ruling in the original trial court on its motion to

amend the information. As a result, defendant had to defend against one

81. 740N.E.2dll8(Ind.2001).

82. See id. at 119.

83. See id. at 119-20.

84. See id. at 120.

85. 689N.E.2d 1226 (Ind. 1997).

86. See id. at 1228-30.



V

200 1 ] PROFESSIONAL RESPONSIBILITY 93 5

count of murder. In response, the State dismissed the case and filed a

second information which contained four counts: the original murder
count plus the felony murder, attempted robbery, and auto theft counts.

Then, for no apparent reason other than because the State knew that the
court had already ruled that the State could not include those additional

three counts in the information, the State moved for and was granted
transfer to a different court. By doing so, the State not only crossed over
the boundary offair play but also prejudiced the substantial rights ofthe

defendant. Because ofa sleight ofhand, the State was able to escape the
ruling ofthe original court and pursue the case on the charges the State

had sought to add belatedly. This is significantly different than what has
been permitted in the past. Therefore, the trial court erred in denying

defendant
9
s motion to dismiss the felony murder, attempted robbery, and m

auto theft charges.
87 *

In the end, the supreme court affirmed Davenport's conviction of the single
murder charge with which he was originally charged, but reversed the trial
court's decision to allow the case to go to trial on the additional charges filed on
the eve of trial.

88

In Johnson, an additional issue was present that was not an issue in the
Davenport decision, filing additional charges in an apparent retaliation for the

prior motion in limine}
9
With Davenportcontrolling, the supreme court reversed

the memorandum affirmation from the court ofappeals and held that the latitude
permitted prosecutors in making charging decisions had limits and, like

Davenport, the State in the Johnson case had exceeded those boundaries.

Although this case arose from the exclusion of evidence rather than *£
denial of permission to add charges, the reasoning of Davenport is m
pertinent. In each case, the State sought to take some action (i.e. to add &
charges or to offer evidence of other acts of misconduct) that would
require the defendant to revise his defense strategy at the eleventh hour. 3
In each case, the trial court concluded that the State did not have a good ;*&

reason for the delay or lack of notice. In each case, the court properly

forbade the action as taken too late. In each case, the prosecutor sought cj

to dodge the adverse ruling via dismissal and refiling. The equities
weigh even more heavily in Johnson's favor than in either Davenport or
Klein. By refiling, the State attempted not only to evade the court's
ruling and get a second shot at offering 404(b) evidence, but also to

subject Johnson to ten additional charges. If the State may circumvent
an adverse evidentiary ruling by simply dismissing and refiling the

original charge, and also "punish" the defendant for a successful

procedural challenge by piling on additional charges, defendants will as

a practical matter be unable to avail themselves oflegitimate procedural

87. Id. at 1230.

88. See id. at 1233.

89. See Johnson v. State, 740 N.E.2d 1 18, 121 (Ind. 2001).

m

m



936 INDIANA LAW REVIEW [Vol. 34:921

rights Based on the circumstances presented, we conclude that the
State exceeded the boundaries of fair play. The prosecutor
impermissibly impinged the defendant's exercise of his substantial
procedural rights by dismissing and refiling to evade an adverse trial

court ruling and, in the process, piling on additional charges that were
unjustified by changed circumstances. Therefore, the trial court abused
its discretion when it denied in total Johnson's motion to dismiss the
eleven-count information.

90

The supreme court then used its equitable powers to return the parties to the
position they were in status quo ante and returned the case to the trial court so
that it could proceed on the original single charge of sexual misconduct.

91
In a

footnote, the court acknowledged the holding from Davenport that substantial
rights ofa criminal defendant are notperse prejudiced when the State dismisses
an information in order to avoid an adverse evidentiary ruling and then refiles an

information for the same offense.
92
The court quickly followed up by adding that

the question of substantial prejudice is a fact-sensitive inquiry and is not readily

amenable to a bright-line test.
93 Viewed another way, this could be a signal to

astute prosecutors and judges that the court of appeals and supreme court are

ready to revisit this subject in future cases and review very carefully how these
fact-sensitive inquiries are being handled.

Johnson is at least the third case in eighteen months in which the supreme

court has published a decision critical of the State's handling of evidentiary

matters either on the eve ofor during trial. In the late summer of 1 999, the court
handed down two decisions criticizing prosecutors for their handling ofBrady**
material. In the cases, of Williams v. State

95
and Goodner v. State* the supreme

court criticized prosecutors for last minute disclosures ofinformation that could

have been beneficial to the defense of a criminal defendant. In Goodner, a key

prosecution witness received a favorable deal on his own criminal case in
exchange for his favorable testimony for the State at trial. The State did not
disclose the arrangement to the defense until the witness had left the witness

stand. When questioned about the arrangement during the defense's case-in-
chief, the witness initially denied the favorable treatment until re-direct

examination by the State.
97 The court noted, however, that the evidentiary issue

was one that they had dealt with repeatedly and considered stronger action if
problems continued.

There may be a valid explanation for the sequence of events at

90. Id.

91. See id.

92. See id. at 120 n.3 (citing Davenport, 689 N.E.2d at 1229).

93. See id.

94. Brady v. Maryland, 373 U.S. 83 (1963).

95. 714 N.E.2d 644 (Ind. 1999), cert, denied, 528 U.S. 1 170 (2000).

96. 714 N.E.2d 638 (Ind. 1999).

97. See id. at 640.



2001] PROFESSIONAL RESPONSIBILITY 937

Goodner's trial, but none is apparent, and none was offered in the trial
court. This conduct appears to be a recurring scenario. We cannot
continue to tolerate late inning surprises later justified in the name of
harmless error. Continued abuses ofthis sort may require a prophylactic
rule requiring reversal. In the meantime, there are other sanctions for

prosecutorial misconduct. The Indiana Rules of Professional Conduct
require a prosecutor to "make timely disclosure to the defense of all
evidence or information known to the prosecutor that tends to negate the
guilt ofthe accused or mitigates the offense." Rule 8.4(d) also states that

it is misconduct for a lawyer to "engage in conduct that is prejudicial to

the administration ofjustice." Members of the bar and the trial bench
should remember their obligation to report such misconduct to the
appropriate authorities.

98

It should be clear, then, that the Indiana Supreme Court is continuously reviewing
the matters that come before it with an eye towards not only the conduct of the
case below, but also the conduct ofthe lawyers and judges who represented the
parties. As the quoted text from Goodner makes clear, the Rules ofProfessional
Conduct and other ethical standards remain at the ready when the supreme court
examines the cases on its docket." Although this same analysis is not present on
the face of the opinion in Johnson™ the language used in the decision reveals
that the professional conduct ofthe prosecutors involved in the case was at the
heart of the decision.

101
With Williams, Goodner and now Johnson in mind,

lawyers representing both the State and the defense in criminal cases should have

an unmistakable signal that ethics is as much a part of the criminal justice
process as are the facts in the case at bar.

Conclusion

As noted at the outset, the pervasive quality of professional ethics has a
substantial impact on the way in which issues of substantive law are handled.
The cases cited herein should serve to illustrate that the advocacy battleground
does, indeed, have very definable limits. Lawyers exceeding those bounds, even

when it is within their power to do so, proceed at their peril. The cases should
also serve to point out that unprofessional behavior is not simply a matter

affecting the individual lawyer orjudge, but it can have a determinative effect on

the substantive underlying case being adjudicated. This year's cases, coupled

with the amendments to the rules governing professional discipline, signal a
strong effort on the part of the Indiana Supreme Court to maintain very high
standards of professional responsibility for all members of the Indiana bar.

98. Id. at 642-43 (citations omitted).

99. See id.

1 00. Johnson v. State, 740 N.E.2d 1 1 8 (Ind. 200 1 ).

101. See id. at 121.



938 INDIANA LAW REVIEW [Vol. 34:92

1

Appendix "A"

Amendments to Admission and Discipline 23

Effective January 1 , 2001

Rule 23. Disciplinary Commission and Proceedings

• • •

Section 8. Powers and Duties of the Disciplinary Commission

In addition to the powers and duties set forth in this Rule, the Commission
shall have the power and duty to:

(a) appoint with the approval ofthe Supreme Court an Executive Secretary
ofthe Commission who shall be a member ofthe Bar ofthis State and who shall
serve at the pleasure of the Commission;

(b) prepare and furnish a form of request for investigation to each person

who claims that an attorney is guilty ofmisconduct and to each Bar Association
in this State for distribution to such persons;

(c) supervise the investigation of claims of misconduct;

(d) issue subpoenas, including subpoenas duces tecum; the failure to obey
such subpoena shatt may be punished as contempt of this Court; or. in the case
ofan attorney under investigation, shall subject the attorney to suspension under

the procedures set forth in subsection 10(f) of this Rule:

(e) do all things necessary and proper to carry out its powers and duties under
these Rules;

(f) the right to bring an action in the Supreme Court to enjoin or restrain the
unauthorized practice of law.

Section 9. Powers and Duties of the Executive Secretary

In addition to the powers and duties set forth in this Rule, the Executive

Secretary shall have the power and duty to:

(a) administer the Commission's work;

(b) appoint, with the approval of the Commission, such staff as may be
necessary to assist the Commission to carry out its powers and duties under this
Rule;



2001] PROFESSIONAL RESPONSIBILITY 939

(c) supervise and direct the work of the Commission's staff;

(d) appoint and assign duties to investigators;

(e) supervise the maintenance of the Commission's records;

(f) issue subpoenas in the name of the Commission, including subpoenas
duces tecum. The failure to obey such a subpoena shall be punished as a
contempt of this Court; or. in the case of an attorney under investigation, shall

subject the attorney to suspension under the procedures set forth in subsection

10m of this Rule:

(g) enforce the collection of the registration fee provided in Section 1

5

against delinquent members of the Bar;

(h) notwithstanding Section 22, cooperate with the attorney disciplinary

enforcement agencies ofotherjurisdictions, including, upon written request, the

release of any documents or records that are in the control of the Executive

Secretary to the chiefexecutive of an attorney disciplinary enforcement agency

in any jurisdiction in which an Indiana attorney is also admitted; and

(i) do all things necessary and proper to carry out the Executive Secretary's
duties and powers under this Rule.

Section 10. Investigatory Procedures

(a) Upon receipt of a written, verified claim of misconduct (hereinafter
referred to as "the grievance"), from a member ofthe public, a member of this
bar, a member ofthe Commission, or a Bar Association (hereinafter referred to
as "the grievant") and completion of such preliminary investigation as may be
deemed appropriate, the Executive Secretary shall:

(1) Dismiss the claim, with the approval of the Commission, if the

Executive Secretary determines that it raises no substantial question of

misconduct; or

(2) If the Executive Secretary determines that it does raise a

substantial question of misconduct, send a copy of the grievance by
certified mail to the attorney against whom the grievance is filed
(hereinafter referred to as "the respondent") and shall demand a written
response. The respondent shall respond within twenty (20) days, or
within such additional time as the Executive Secretary may allow, after
the respondent receives a copy of the grievance. In the event of a

dismissal as provided herein, the person filing the grievance and the

respondent shall be given written notice of the Executive Secretary's

determination. In the event ofa determination that a substantial question

exists, the matter shall proceed to subsection (b) hereinafter.



940 INDIANA LAW REVIEW [Vol. 34:921

(b) Thereafter, if the Executive Secretary, upon consideration of the
grievance, any response from the respondent, and any preliminary investigation,
determines there is a reasonable cause to believe that the respondent is guilty of
misconduct the grievance shall be docketed and investigated. If the Executive
Secretary determines that no such reasonable cause exists, the grievance shall be
dismissed with the approval ofthe Commission. In either event, the person filing
the grievance (hereinafter referred to as "the grievant") and the respondent shall
be given written notice of the Executive Secretary's determination.

(c) If the grievance is docketed for investigation, the Executive Secretary

shall conduct an investigation of the grievance. Upon completion of the
investigation the Executive Secretary shall promptly make a report of the
investigation and a recommendation to the Commission at its next meeting.

(d) In conducting an investigation of any grievance, or in considering the
same, the Executive Secretary or the Commission shall not be limited to an
investigation or consideration ofonly matters set forth in the grievance, but shall

be permitted to inquire into the professional conduct of the attorney generally.

In the event that the Executive Secretary or the Commission should consider any
charges of misconduct against an attorney not contained in the grievance, the

Executive Secretary shall notify the attorney of the additional charges under

consideration, and the attorney shall make a written response to the additional
charges under consideration within twenty (20) days after the receipt of such

notification, or within such additional time as the Executive Secretary shall

allow.

Any additional charges ofmisconduct against an attorney, after such notice
has been given by the Executive Secretary and the attorney has had an
opportunity to reply thereto, may be the subject ofa count ofany complaint filed
against the attorney pursuant to Sections 1 1 and 12 of this Rule.

(e) It shall be the duty of every attorney against whom a grievance is filed
under this Section to cooperate with the Commission's investigation, accept

service, comply with the provisions of these rules, and when notice is given by
registered or certified mail, claim the same in a timely manner either personally
or through an authorized agent. Every attorney is obligated under the terms of

Admission and Discipline Rule 2 to notify the Clerk ofthe Supreme Court ofany
change of address or name within thirty (30) days of such change, and a failure
to file the same shall be a waiver of notice involving licenses as attorneys or
disciplinary matters.

(f) An attorney who is the subject of an investigation bv the Disciplinary
Commission may be suspended from the practice of law upon a finding that the
attorney has failed to cooperate with the investigation.

(O Such a finding may be based upon the attorney's failure to
submit a written response to pending allegations of professional



200 1 ] PROFESSIONAL RESPONSIBILITY 94

1

misconduct, to accept certified mail from the Disciplinary Commission
that is sent to the attorney's official address ofrecord with the Clerk and

that requires a written response under this Rule, or to comply with any
lawful demand for information made by the Commission or its Executive
Secretary in connection with any investigation, including failure to

comply with a subpoena issued pursuant to sections 8(d) and 9(f) or
unexcused failure to appear at any hearing on the matter under

investigation.

(2) Upon the filing with this Court of a petition authorized by the
Commission, the Court shall issue an order directing the attorney to
respond within ten ( 1 0) days ofservice ofthe order and show cause why
the attorney should not be immediately suspended for failure to

cooperate with the disciplinary process. Service upon the attorney shall

be made pursuant to sections 12(g) and (h). The suspension shall be
ordered upon this Court's finding that the attorney has failed to

cooperate, as outlined in subsection (f)(1), above. An attorney
suspended from practice under this subsection shall comply with the
requirements of sections 26(b) and (c) of this rule.

(3) Such suspension shall continue until such time as (a) the

Executive Secretary certifies to the Court that the attorney has

cooperated with the investigation; (b) the investigation or any related

disciplinary proceeding that may arise from the investigation is disposed;
or (c) until farther order of the Court.

(4) On motion by the Commission and order of the Court,
suspension that lasts for more than six (6) months may be converted into
indefinite suspension.

Section 11.1 Summary Suspensions

(a) Upon finding that an attorney has been found guilty ofa crime punishable
as a felony, the Supreme Court may suspend such attorney from the practice of
law pending further order of the Court or final determination of any resulting

disciplinary proceeding.

(1

)

Thejudge ofany court in this state in which an attorney is found
guilty of a crime shall, within ten (10) days after the finding of guilt,

transmit a certified copy ofproofofthe finding ofguilt to the Executive

Secretary of the Indiana Supreme Court Disciplinary Commission.

(2) An attorney licensed to practice law in the state of Indiana who
is found guilty ofa crime in any state or ofa crime under the laws ofthe

United States shall, within ten (10) days after such finding of guilt,

transmit a certified copy of the finding of guilt to the Executive



942 INDIANA LAW REVIEW [Vol. 34:92

1

Secretary of the Indiana Supreme Court Disciplinary Commission.

(3) Upon receipt of information indicating that an attorney has been
found guilty ofa crime punishable as a felony under the laws ofany state
or of the United States, the Executive Secretary shall verify the
information, and, in addition to any other proceeding initiated pursuant

to this Rule, shall file with the Supreme Court a Notice of Finding of
Guilt and Request for Suspension, and shall forward notice to the

attorney by certified mail. The attorney shall have fifteen (15) days
thereafter to file any response to the request for suspension. Thereafter,

the Supreme Court may issue an order of suspension upon notice of
finding of guilt which order shall be effective until further order of the
Court.

(b) If after consideration pursuant to Section 11(b), the Commission
determines there is reasonable cause to believe the respondent is guilty of
misconduct which, if proven, would warrant suspension pending prosecution, it
shall file a motion to that effect with this Court, and this Court shall so advise the
hearing officer or officers.

(1 ) Ifthere has been a determination ofreasonable cause as set forth

under Section 11.1(b) above, and if the complaint states facts

constituting such reasonable cause, the hearing officer or officers may,

upon motion of the Disciplinary Commission, issue a rule against the
respondent to show cause why he or she should not be suspended
pending final determination of the cause and fixing a time and place
certain for hearing thereon, which shall be not less than fifteen ( 1 5) days
after service of notice thereof, if by personal service, and not less than

twenty (20) days after mailing, if by certified or registered mail.
Procedure at the hearing upon such rule to show cause shall be the same
as provided herein for hearing upon the complaint and answer, except
the burden of proof shall be upon the respondent. If the respondent, in

the opinion of the hearing officer or officers shall fail to sustain such
burden ofproof, the hearing officer or officers shall submit to this Court
a written recommendation whether or not the respondent be suspended

pending final determination of the cause.

(2) Upon receipt ofwritten recommendation for suspension, pending
final determination ofthe cause, this Court may forthwith enter an order
of suspension thereon.—Respondent shall have fifteen (15) days
thereafter to petition this Court for a review and a dissolution of such
order.

If it appears to the Disciplinary Commission upon the affirmative vote of
two-thirds (2/3) of its membership, that: (0 the continuation of the practice of

law by an attorney during the pendency of a disciplinary investigation or
proceeding may pose a substantial threat ofharm to the public, clients, potential
clients, or the administration of justice, and (ii) the alleged conduct if true.



200 1 ] PROFESSIONAL RESPONSIBILITY 943

would subject the respondent to sanctions under this Rule, the Executive
Secretary shall petition the Supreme Court for an order of interim suspension
from the practice of law or imposition oftemporary conditions of probation on
the attorney.

(DA petition to the Supreme Court for interim relief under this
subsection shall set forth the specific acts and violations ofthe Rules of

Professional Conduct submitted by the Commission as grounds for the
reliefrequested. The petition shall be verified and may be supported by
documents or affidavits. A copy of the petition, along with a notice to
answer, shall be served by the Commission on the attorney in the same
manner as provided in sections 12(g) and (h) ofthis rule. The Executive
Secretary shall file a return on service, setting forth the method of
service and the date on which the respondent was served with the
petition and notice to answer. The attorney shall file an answer to the
Commission ' s petition with the Supreme Court within fourteen ( 1 4) days
of service. The answer shall be verified and may be supported bv
documents or affidavits. The attorney shall mail a copy ofthe answer to
the Executive Secretary and file proof of mailing with the court.

(2) The failure of the respondent to answer the Commission's
petition within the time granted bv this rule for an answer shall

constitute a waiver ofthe attorney's right to contest the petition, and the

Supreme Court may enter an order of interim suspension or imposition
of temporary conditions of probation in conformity with subsection

(b)(5) either upon the record before it or at the discretion ofthe Court,
after a hearing ordered by the Court.

(3) Upon the filing of the respondent's answer and upon
consideration of all of the pleadings, the Court mav:

(i) order interim suspension or imposition oftemporary

conditions ofprobation upon the petition and answer in

conformity with subsection (b)(5):

or(ii) deny the petition upon the petition and answer:

(iii) refer the matter to a hearing officer, who shall
proceed consistent with the procedures set forth in

subsection (b)(4).

(4) Upon referral to a hearing officer ofan interim reliefmatter from
the Supreme Court, the hearing officer shall hold a hearing thereon
within thirty (30) days of the date of referral and render a report to the
Court containing findings offact and a recommendation within fourteen

(14) days ofthe hearing. The Court shall thereafter act promptly on the
hearing officer's report, findings and recommendation.



944 INDIANA LAW REVIEW [Vol. 34:921

(5) The Supreme Court, upon the record before it or after receiving
a hearing officer's report, shall enter an appropriate order. If the Court

finds that the Commission has shown by a preponderance of the
evidence that:

(i) the continuation of the practice of law bv the
respondent during the pendency of a disciplinary
investigation or proceeding may pose a substantial
threat ofharm to the public, clients, potential clients, or
the administration of justice: and

(ii) the conduct would subject the respondent to
sanctions under this rule:

the Court shall grant the petition and enter an order of interim
suspension or imposition of temporary conditions of probation. The
order shall set forth an effective date and remain in effect until

disposition ofany related disciplinary proceeding or further order ofthe
court.

(6) In the event the Court issues an order of interim relief pursuant

to subsection (b)(5). the respondent may file a verified motion with the
Supreme Court at any time for dissolution or amendment ofthe interim
order by verified motion that sets forth specific facts demonstrating good
cause. A copy ofthe motion shall be served on the Executive Secretary.
Successive motions for dissolution or amendment of an interim order
mav be summarily dismissed by the Supreme Court to the extent thev
raise issues that were or with due diligence could have been raised in a

prior motion. If the motion is in proper form, the Court may refer the
matter to a hearing officer, who shall proceed consistent with the
procedures set forth in subsection (b)(4).

(7) In the event a verified complaint for disciplinary action has not

been filed bv the time an order of interim relief is entered, the

Disciplinary Commission shall file a formal complaint within sixty (60)
davs ofthe interim relieforder. When a respondent is subject to an order
of interim relief, the hearing officer shall conduct a final hearing ofthe

underlying issues and report thereon to the Court without undue delay.

(8) An attorney suspended from practice under this section shall
comply with the requirements of subsections 26(b) and (c) of this rule.

(c) Upon receipt of an order from a court pursuant to IC 31-16-12-8 or IC
31-14-1 2-5 stating finding that an attorney has been found to be delinquent in the

payment of child support as a result of an intentional violation of an order for

support, the Executive Secretary shall file with the Supreme Court a Notice of

Intentional Violation of Support Order and Request for Suspension, and shall



200 1
]

PROFESSIONAL RESPONSIBILITY 945

forward notice to the attorney by certified mail. The attorney shall have fifteen

(15) days thereafter to file any response to the request for suspension.

Thereafter, the Supreme Court may issue an order of suspension. Such order
shall be effective until further order of the Court.

Section 12. Prosecution of Grievances

(a) If the Commission determines that there is reasonable cause to believe
respondent is guilty ofmisconduct and the misconduct would not likely result in
a sanction greater than a public reprimand if successfully prosecuted, and ifthe

respondent and the Commission agree to an administrative resolution of the
complaint, the Commission may resolve and dispose of minor misconduct by
private administrative admonition without filing a verified complaint with the

Court. Without limitation, misconduct shall not be regarded as minor if any of

the following conditions exist:

(1) The misconduct involves misappropriation of funds or property;

(2) The misconduct resulted in or is likely to result in material prejudice
(loss ofmoney, legal rights or valuable property rights) to a client or
other person;

(3) The respondent has been publicly disciplined in the past three (3)
years;

(4) The misconduct involved is of the same nature as misconduct for
which the respondent has been publicly or privately disciplined in

the past five (5) years;

(5) The misconduct includes dishonesty, misrepresentation, deceit, or
fraud on the part of the respondent; or

(6) The misconduct constitutes the commission of a felony under
applicable law.

(b) An administrative admonition shall be issued in the form ofa letter from
the Executive Secretary to the respondent summarizing the facts and setting out

the applicable violations of the Rules of Professional Conduct. A copy of the
admonition letter shall first be sent to each Justice ofthe Supreme Court and to
the Division ofState Court Administration. The administrative admonition shall
be final within thirty (30) days thereafter, unless set aside by the Court. Ifnot set

aside by the Court, the admonition shall be sent to the respondent, and notice of

the fact that a respondent has received a private administrative admonition shall

be given by the Executive Secretary to the grievant. The fact that an attorney has

received a private administrative admonition shall be a public record, which shall

be filed with the Clerk ofthis Court and shall be kept by the Executive Secretary.



946 INDIANA LAW REVIEW [Vol. 34:92

1

(c) In the event the Commission determines that the misconduct, if proven,
would warrant disciplinary action and should not be disposed of by way of an
administrative admonition, the Executive Secretary shall prepare a verified

complaint which sets forth the misconduct with which the respondent is charged
and shall prosecute the case.

(d) The complaint shall be entitled "In the Matter of," naming the
respondent. Six (6) copies shall be filed with this Court. The complaint may be
verified on the basis of information and belief.

(e) Contemporaneously with the filing of the complaint the Commission
shall promptly prepare and furnish to the clerk as many copies ofthe complaint
and summons as are necessary. The clerk shall examine, date, sign and affix
his/her seal to the summons and thereupon issue and deliver the papers to the
appropriate person for service. Separate or additional summons shall be issued
bv the clerk at any time upon proper request by the Commission.

(f) The summons shall contain:

(1) The name and address ofthe person on whom the service is
to be effected:

(2) The Supreme Court cause number assigned to the case:
(3) The title ofthe case as shown bv the complaint:
(4) The name, address, and telephone number of the Disciplinary
Commission:

(5) The time within which this rule requires the person being served
to respond, and a clear statement that in case of his or her failure to

do so. the allegations in the complaint shall be taken as true.

The summons may also contain any additional information that will
facilitate proper service.

(e) £g) Upon the filing of such complaint, a copy of the summons and
complaint shall be served upon the respondent by delivering a copy of the

complaint them to the respondent personally or by sending a copy of the

complaint them by registered or certified mail with return receipt requested and
returned showing the receipt of the letter.

In the event the personal service or service by registered or certified mail

cannot be obtained upon any respondent attorney, said summons and complaint
shall be served on the Clerk of this Court as set forth below.

(f) £h} Each attorney admitted to practice law in this State shall be deemed
to have appointed the Clerk ofthis Court as his or her agent to receive service of

any and all papers, processes or notices which may be called for by any provision
ofthis rule. Such papers, process or notice may be served by filing the same with
the Clerk of this Court as the agent for said attorney, together with an affidavit

setting forth the facts necessitating this method ofservice. Upon receipt ofsuch



2001 ] PROFESSIONAL RESPONSIBILITY 947

papers, process or notice together with such affidavit, the Clerk of this Court

shall immediately mail such papers, process or notice to such attorney at the

attorney's address as shown upon the records ofthe Clerk ofthis Court, and the
Clerk shall make an affidavit showing the mailing of such papers, process or
notice to said attorney. Upon the completion of this procedure, said attorney
shall be deemed to have been served with such papers, process or notice.

Section 14. Proceedings Before the Hearing Officer

(a) The rules of pleading and practice in civil cases shall not apply. No
motion to dismiss or dilatory motions shall be entertained. The case shall be
heard on the complaint and an answer which may shall be filed by the respondent
within thirty (30) days after notice of the filing service of the summons and
complaint or such additional time as may be allowed upon written application
to the hearing officer that sets forth good cause. A written application for
enlargement oftime to answer shall be automatically allowed for an additional

thirty (30) days from the original due date without a written order ofthe Hearing

Officer. Any motion for automatic enlargement oftime filed pursuant to this rule
shall state the date when such answer is due and the date to which time is
enlarged. The motion must be filed on or before the original due date or this
provision shall be inapplicable. All subsequent motions shall be so designated

and shall be granted by the hearing officer only for good cause shown. An
answer, iffiled, may shall assert any legal defense. Six£6} copies ofsuch answer
shall be filed with the Court. An answer need not be filed, in which case the
complaint shall be taken as denied. A respondent may on a showing of good
cause petition for a change of hearing officer within ten (10) days after the

appointment of such hearing officer.

(b) The answer shall admit or controvert the averments set forth in the
complaint by specifically denying designated averments or paragraphs or

generally denying all averments except such designated averments or paragraphs

as the respondent expressly admits. If the respondent lacks knowledge or
information sufficient to form a belief as to the truth of an averment, he or she

shall so state and his statement shall be considered a denial. If in good faith the

respondent intends to deny only a part ofan averment he or she shall specify so
much of it as is true and material and deny the remainder. All denials shall fairly
meet the substance of the averments denied. Averments in a complaint are
admitted when not denied in the answer. An The answer, if filed, may assert any
legal defense. Six £6} copies of such answer shall be filed with the Court. An
answer need not be filed, in which case the complaint shall be taken as denied.

A respondent may on a showing of good cause petition for a change of hearing
officer within ten (10) days after the appointment of such hearing officer.

(c) When a respondent has failed to answer a complaint as required by this
section and that fact is made to appear by affidavit and an application for



948 INDIANA LAW REVIEW [Vol. 34:921

judgment on the complaint the allegations set forth in the complaint shall be
taken as true. If a respondent who has failed to answer has appeared in the
action, he or she (or. if appearing bv counsel, his or her counsel) shall be served

with written notice of the application for judgment on the complaint at least

seven (7) days prior to the hearing on such application. Upon application for
judgment on the complaint and in the absence of anv answer bv the respondent,
the hearing officer shall take the facts alleged in the complaint as true and

promptly tender a report to the Supreme Court in conformity with subsection (TO.
If a hearing officer has not been appointed by the time an application for

judgment on the complaint is filed and no appearance has been filed bv or on
behalf ofthe respondent the Supreme Court shall act directly on the application

for judgment on the complaint.

fb) (d) Either the Executive Secretary or the respondent may file with the
hearing officer a motion to take depositions or a motion to produce certain
documents or records, setting forth the reasons why sueh depositions should be
taken or such records should be produced. The hearing officer may permit the
taking ofsuch depositions or may require the production ofdocuments or records
under such terms and conditions as the hearing officer may deem proper.
Discovery shall be available to the parties on Such terms and conditions shaH

that, as nearly as practicable, follow the Indiana Rules of Civil Procedure

pertaining to discovery proceedings.

fc) (e) At the discretion of the hearing officer, or upon the request of either

party, a pre-hearing conferencemay shall be ordered for the purpose ofobtaining
admissions, narrowing the issues presented by the pleadings, requiring an

exchange of the names and addresses of prospective witnesses and the general

nature of their expected testimony, considering the necessity or desirability of

amendments to the verified complaint and answer thereto, and such other matters

as may aid in the disposition of the action.

(d) £f} The grievant, the respondent, and the Commission shall be given not

less than fifteen (15) days written notice of the hearing date. The respondent

shall have the right to attend the hearing in person, to be represented by counsel,

to cross-examine the witnesses testifying against him or her and to produce at the

hearing and require the production of evidence and witnesses in his or her own
behalf at the hearing, as in civil proceedings. Ail notices connected with

processing of such complaint shall be issued only under the direction of the

hearing officer or hearing officers, and no other court or judicial officer of this

State shall have jurisdiction to issue any orders or processes in connection with

a disciplinary complaint. Upon request ofa party, the hearing officer may issue
a subpoena, or a subpoena for the production of documentary evidence, signed

and sealed but otherwise in blank, to a party requesting it or his or her attorney,

who shall fill it in before service. The hearing officer may also authorize an
attorney admitted to practice law in this state who has appeared for a party, as an
officer of the court, to issue and sign such subpoena. Subpoenas for the

attendance ofwitnesses and production ofdocumentary evidence shall conform



200 1 ] PROFESSIONAL RESPONSIBILITY 949

to the provisions of Trial Rule 45. The hearing officer or officers shall have
authority to enforce, quash or modify subpoenas upon proper application by an
interested party or witness.

(e) (g) The proceedings may be summary in form and shall be without the
intervention of a jury and shall be reported.

if) £h) Within thirty (30) days after the conclusion ofthe hearing, the hearing

officer shall determine whether misconduct has been proven by clear and
convincing evidence and shall submit to the Supreme Court written findings of
fact. Either party may request or the hearing officer at his or her own motion
may make a recommendation concerning the disposition of the case and the
discipline to be imposed. Such recommendation is not binding on the Supreme
Court. A copy ofsaid findings and any recommendations shall be served by the
hearing officer on the respondent and the Executive Secretary ofthe Disciplinary

Commission at the time of filing same with the Supreme Court.

Section 17. Resignations and Admission of Misconduct

(a) An attorney who is the subject of an investigation into, or a pending
proceeding involving, allegations of misconduct may resign as a member of
the bar of this Court, or may consent to discipline, but only by delivering to
the Court an affidavit stating that the respondent desires to resign or to

consent to discipline and that:

(1) The respondent's consent is freely and voluntarily rendered;
he or she is not being subjected to coercion or duress; he or she is

fully aware of the implications of submitting his or her consent;

(2) The respondent is aware that there is a presently pending
investigation into, or proceeding involving, allegations that there exist

grounds for his or her discipline the nature ofwhich shall be

specifically set forth;

(3) The respondent acknowledges that the material facts so
alleged are true; and

(4) The respondent submits his or her resignation or consent
because the respondent knows that if charges were predicated upon
the matters under investigation, or if the proceeding were prosecuted,

he or she could not successfully defend himself or herself.

(b) Upon receipt of the required affidavit, this Court shaH may enter an
order approving the resignation or imposing a disciplinary sanction on

consent.



950 INDIANA LAW REVIEW [Vol. 34:921

(c) Such order shall be a matter of public record. However, the affidavit
required under the provisions of (a) above shall not be publicly disclosed or
made available for use in any other proceeding except upon order of this
Court.

Section 17.1. Termination of Probation

Unless otherwise provided in the order of probation, an attorney on
probation at any time after 10 days prior to expiration ofthe period ofprobation

may serve on the Executive Secretary (i) an affidavit showing successful
compliance with all terms of probation, and (ii) an application for termination

of probation. The Executive Secretary shall have ten (10) days after receipt to
serve written objections on the attorney. Upon service of any objection the
probation shall continue until further ordered bv the Court. If no objection has

been served, termination shall be effective ten (10) davs (or thirteen (13) days

if the application is served bv mail) after receipt by the Executive Secretary.

Section 17.2. Revocation of Probation

(a) Motion to Revoke. If the Executive Secretary receives information that

an attorney on probation may have violated any condition of probation, the
Executive Secretary mav file a verified motion to revoke probation with the
Court, setting forth specific facts in support of the motion. A motion for
revocation of an attorney's probation shall not preclude the Commission from
filing independent disciplinary charges based on the same conduct alleged in the
motion.

(b) Response to Motion. Within ten (10) davs after service of a petition

under subparagraph (a), the attorney shall file an answer under penalties of

perjury admitting or controverting each of the allegations contained in the

revocation motion. A general denial shall not be allowed and, if filed, will be
taken as a failure to answer. The attorney's failure to answer timely will be
deemed to be an admission to the averments in the motion to revoke probation,
unless the Court in its discretion elects to give consideration to any answer that

is filed before the Court acts on the revocation motion.

(c) Burden of Proof and Matters Considered. The Executive Secretary has

the burden of establishing bv a preponderance of the evidence any violations of

conditions of probation. Any reliable evidence of probative value may be
considered regardless of its admissibility under rules of evidence so long as the

opposing party is accorded a fair opportunity to controvert it

.

(d) Disposition. After the time for filing an answer has expired, the Court

may dispose of the matter on the pleadings and supportive materials or. in the
event there are material factual disputes, mav refer it to a hearing officer who



200 1 ] PROFESSIONAL RESPONSIBILITY 95

1

shall hold a hearing on the revocation motion within fourteen (14) days of the

date the hearing officer is appointed. The hearing officer shall file with the Clerk
ofthe Court findings and a recommendation within ten (10) days ofthe hearing.

Following receipt of the hearing officer's findings and recommendation, the

Court shall enter an order granting or denying the revocation motion and entering

an appropriate disposition consistent with the Court's ruling in the matter.

Section 17.3. Service. Filing and Time Calculation

(a) Service. Service upon the attorney and the Executive Secretary shall be

by personal service or by certified mail return receipt requested. Service shall

be complete and sufficient upon mailing when served upon the attorney at his
current address of record on the roll of attorneys, regardless of whether the

attorney claims the mail.

(b) Filing. All papers served shall be filed with the Clerk of the Court.

c) Time Calculation. Ifservice is made by mail, an additional three (3) days
shall be allowed for service of any responsive document under Section 17.1 or

17.2.

Section 17.4. Interim Suspension

In addition to a motion for revocation of probation, the Executive Secretary

may also file a verified motion setting forth good cause for the immediate interim
suspension ofthe attorney's license to practice. Upon a showing of good cause,
the Court may order the attorney's license suspended on an interim basis until
such time as the revocation motion has been determined.

Section 21. Annual registration fee

Funds necessary to enable the Commission to carry out its functions,
obligations and duties under this rule shall be provided as follows:

(a) Except as provided in subsection (b), each attorney who is a member of
the bar of this Court on August 1 , 1978, and each attorney who is a member on
August 1 of each year thereafter, and each attorney admitted pro hac vice

pursuant to Admission and Discipline rule 3. Section 2. shall so long as the

attorney is a member of the Bar of this Court, pay a registration fee of seventy
dollars ($70) eighty dollars ($80.00) a year on or before October 1 of such year.

For each day after October 1 of a year that an attorney's registration fee is

unpaid, an additional delinquent fee shall be added to the registration fee in the

amount of $5.00 for each day of delinquency, not to exceed $100.00.

Any attorney admitted to practice law in this State on a date subsequent to



952 INDIANA LAW REVIEW [Vol. 34:92

1

August 1 of each year shall, within ten (10) days of the date of his or her
admission to the bar of the Court, or by October 1 of said year, whichever date
is later, pay a registration fee offfifrOO eighty dollars ($80.00). The Clerk ofthis
Court shall furnish to the Commission the names and addresses of all persons
admitted to practice subsequent to August 1 of each year as said persons are
admitted.

(b) No registration fee shall be required of an attorney who files with the
Clerk, on or before the date the registration fee would otherwise be due, an
affidavit that he or she neither holdsjudicial office nor is engaged in the practice

oflaw in this State. An attorney who is sixty-five (65) years old or older and files
such an exemption affidavit may designate his or her exemption affidavit as a
Retirement Affidavit. Such an affidavit once filed shall be effective for each

succeeding year. An exempt or retired attorney shall promptly notify the Clerk
ofa desire to return to active status, and pay the applicable registration fee for the

current year, prior to any act of practicing law.

(c) On or before August 1, 1975, and the first day of August in each
subsequent year, the Clerk ofthis Court shall mail to each attorney then admitted

to the bar ofthis Court or practicing law in this state, a notice that the registration

fee must be paid or an exemption affidavit filed with the clerk on or before the
first day ofOctober. The clerk shall also send a copy ofsuch notice to each clerk
for each circuit and superior court in this State for posting in a prominent place

in the courthouse and to the Indiana State Bar Association, the Bobbs-Merrill

Publishing Company and the West Publishing Company for publication in their
respective magazine and advance sheets. Provided, however, the failure of the

Clerk to send such notice shall not mitigate the duty to pay the required fee.

(d) Any attorney who fails to pay the registration fee or file the exemption
affidavit referred to in subsections (a) and (b) shall be subject to an order of
suspension from the practice of law in this State and shall be subject to the

sanctions for contempt of this Court in the event he or she thereafter engages in

the practice of law in this State. In the event there is no other basis for the

continued suspension ofthe attorney's license to practice law, such an attorney's

privilege to practice law shall be reinstated upon submission to the Clerk of a

written application for reinstatement and payment of:

(1) the unpaid registration fee for the year of suspension;

(2) any delinquent fees for the year of suspension due pursuant to

subsection (a);

(3) the unpaid registration fee for the year ofreinstatement, ifdifferent

from the year of suspension; and

(4) an administrative reinstatement fee of two hundred dollars

($200.00).



200 1 ] PROFESSIONAL RESPONSIBILITY 953

The Clerk shall distribute the administrative reinstatement fee referred to in
paragraph subsection (d)(4) in equal shares to the Disciplinary Commission Fund
and the Continuing Legal Education Fund.

(e) The Clerk ofthis Court shall issue a certificate ofgood standing approved
by this Court to an attorney upon the receipt ofthe annual registration fee.

(f) All funds collected by the Clerk of this Court on behalf of the

Disciplinary Commission shall be deposited in a special account to be maintained
by the Clerk and designated "Clerk ofthe Courts-Annual Fees." As collected, the
Clerk shall thereafter issue those funds to the Disciplinary Commission, and the

Executive Secretary shall cause the same to be deposited into a special account

designated "Supreme Court Disciplinary Commission Fund." Disbursements

from the fund shall be made solely upon vouchers signed by or pursuant to the
direction of the Chief Justice of this Court. All salaries to be paid shall be

specifically ordered and approved by this Court.
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These amendments shall take effect on January 1, 200L
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