FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Phillip R. Smith, pro se Donald
R. Lundberg, Executive Secretary
D.J. Mote, Staff Attorney
115 West Washington Street, Suite 1165
Indianapolis, IN 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) Case No. 79S00-9910-DI-605
PHILLIP R. SMITH )
December 22, 2000
While his client remained incarcerated by order of one court, the respondent, Phillip
R. Smith, improperly obtained from another court an order releasing his client.
Today we approve a Conditional Agreement between the respondent and the Disciplinary Commission,
submitted pursuant to Ind.Admission and Discipline Rule 23(11), and calling for a public
reprimand of the respondent.
Having been admitted to the bar of this state in 1978, the respondent
is subject to our disciplinary jurisdiction.
The Commission and the respondent agree that the respondents client was under house
arrest by order of the Tippecanoe County Court No. 2 in connection with
a theft conviction. When the client tested positive for drugs, the Tippecanoe
County Court No. 2 issued a warrant for her arrest. On February
24, 1998, the respondent represented the client in her initial hearing before the
Tippecanoe County Court No. 2 magistrate, who scheduled a March 20, 1998, hearing
on the revocation of the clients house arrest.
On February 26, 1998, the respondent filed a motion for physical examination seeking
to have his clients hair tested as a means of challenging the allegation
that the client had been using drugs. The respondent did not assert
any claim in the county court that the client was entitled to an
emergency hearing on the revocation issue and/or to bond pending such hearing.
Instead, on the same day, the respondent filed an application for a writ
of habeas corpus in the Tippecanoe Superior Court, Judge Donald C. Johnson presiding.
In that application, the respondent argued that the clients incarceration was contrary
to law, that the client was entitled to an evidentiary hearing on the
revocation issue in the county court, and that she was entitled to bond
pending such a hearing. The respondent did not notify the State of the
On the next day, Judge Johnson conducted a hearing on the habeas corpus
application, although, due to lack of notice of which Judge Johnson was aware,
the State was not present at the hearing. After the respondent presented
evidence and argument, Judge Johnson granted the habeas corpus petition and ordered the
client released upon the posting of a $5,000 surety bond.
Ind. Professional Conduct Rule 8.4(d) prohibits attorneys from engaging in conduct prejudicial to
the administration of justice. The respondents failure to notify the State of
his filing of the application for a writ of habeas corpus violated Prof.Cond.R.
In mitigation, the Commission and the respondent suggest that the respondents actions were
based on his belief as to the law applicable to his clients case
and were not intended to deceive or undermine the authority of the court
system. Respondent was wrong about that. His actions constituted an attempt
to contravene the order of the court presiding over his clients case.
The respondents failure to inform the State of his request for relief from
another court prevented the State from appearing in that proceeding and presenting its
arguments, an omission that emphasizes that the respondent was attempting to use improper
means to obtain his clients release.
We agree that a public reprimand is the appropriate sanction for the respondents
misconduct. These events led to our public reprimand of the judge who
issued that improper order. Matter of Johnson, 715 N.E.2d 370 (Ind. 1999).
Moreover, we have imposed identical discipline in similar circumstances. See, e.g.,
Matter of Warrum, 724 N.E.2d 1097 (Ind. 2000) (public reprimand where attorney failed
to disclose an existing Utah child support order when and after filing a
petition to modify support in Indiana); Matter of Mullins, 649 N.E.2d 1024 (Ind.
1995) (public reprimand where attorney attempted in one county to establish an emergency
guardianship without informing the court of related proceedings in an adjoining county.)
It is, therefore, ordered that the respondent is hereby reprimanded and admonished for
the misconduct set forth herein.
The Clerk of this Court is directed to provide notice of this order
in accordance with Admis.Disc.R. 23(3)(d) and to provide the Clerk of the United
States Court of Appeals for the Seventh Circuit, the Clerk of each of
the United States District Courts in this state, and the Clerk of each
of the United States Bankruptcy Courts in this state with the last known
address of the respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondent.