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