Question: Do Attorneys Need To Watch What They Say To Opposing Counsel? Answer: Absolutely, or be subjected to discipline!
In a recent case before the Indiana Supreme Court, an attorney was subject to discipline for his actions in representing his client. The facts were stipulated or otherwise undisputed. The attorney represented a client (“Father”) in a dissolution action in which Father’s ability to exercise parenting time became an issue. On August 26, 2009, the attorney sent a letter to opposing counsel for the child’s mother (“Mother”) that said:
{Father] told me this week that he has only seen his baby … one day all year. Your client doesn’t understand what laws and court orders mean I guess. Probably because she’s an illegal alien to begin with. I want you to repeat to her in whatever language she understands that we’ll be demanding she be put in JAIL for contempt of court. I’m filing a copy of this letter with the Court to document the seriousness of this problem.
The letter was also sent to the judge presiding in the dissolution case and a complaint was filed.
In response to the complaint, the Commission charged attorney with violating these Indiana Professional Conduct Rules prohibiting the following misconduct:
4.4(a): Using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person.
8.4(g): Engaging in conduct, in a professional capacity, manifesting bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors, and this conduct was not legitimate advocacy.
The attorney argued that it was legitimate advocacy to connect Mother’s alleged violation of immigration laws with her violation of Father’s court-ordered visitation rights. However, regardless of the frustration Respondent might have felt in the circumstances, we conclude that accusing Mother of being in the country illegally is not legitimate advocacy concerning the legal matter at issue and served no substantial purpose other than to embarrass or burden Mother. The Court therefore concludes that Respondent violated both Rule 4.4(a) and Rule 8.4(g) as charged.
Discipline: While it is a mitigating fact that the attorney has no disciplinary history, his misconduct is aggravated by the fact that he has no insight into his misconduct, he has not apologized to Mother, and he has substantial experience in the practice of law. Under these circumstances, the Court concludes that a period of suspension is required. For the attorney’s professional misconduct, the Court suspends him from the practice of law for a period of 30 days. The attorney shall not undertake any new legal matters between service of this order and the effective date of the suspension, and Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the period of suspension, provided there are no other suspensions then in effect, the attorney shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c). 993 N.E.2d 1138