This is not just my opinion, which is much harsher, but is the opinion of the Indiana Supreme Court which concluded that attorney Jane G Cotton violated Indiana Professional Conduct Rule 3.5(b) by engaging in an improper ex parte communication with a judge, and Indiana Professional Conduct Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice.
This case started with a very common framework to obtain custody of children and a financial windfall in a dissolution proceeding. On August 20, 2007, a wife filed a pro se petition for a protective order against her husband in Madison County. The wife also submitted a proposed "Ex Parte Order for Protection," which ordered the husband to stay away from the wife's residence but did not identify where she lived. On blank lines, the wife wrote several addresses, including the address for the parties' "South Central Way Property." Magistrate Stephen D. Clase crossed out all the hand-written addresses and initialed the changes to indicate they were intentional. On his recommendation, Judge Thomas Newman signed the order as so revised ("Order for Protection") on August 20, 2007.
Side-note: This is the same Judge Newman who doesn't think that parents are entitled to religious freedom and instead feels that the government can mandate Christianity as a State religion. I have written more about that here.
A week later, on August 28, 2007, with husband removed from the home and unable to access his resources, the wife by counsel, filed a petition for dissolution of marriage. Attorney Scott Norrick ("Norrick") filed his appearance as the husband's lawyer in both the protection order case and the divorce case. On November 26, 2007, wife's counsel withdrew as her lawyer.
On December 11, 2007, Norrick filed a "Motion to Remove Personal Property," asking the divorce court to enter an order allowing the husband to remove his personal property at the South Central Way Property. On December 19, the divorce court signed an order granting the motion ("Personal Property Order"). The wife was served with both the motion and the order.
Meanwhile, on December 14, 2007, attorney Cotton began representing the wife. On that date, the wife asked Cotton to stop the husband from removing his personal property from the South Central Way Property. The wife gave a copy of the Order for Protection to Cotton, who saw that the South Central Way Property address had been crossed out and initialed by the Magistrate Clase. On the same date, Cottton and the wife went to the courthouse to talk with Magistrate Clase about the matter, but the only judge Cotton could find was Judge Thomas Clem, who was not involved in either the protection order or the divorce case but had authority to approve orders from other courts in the county's unified system.
Neither Judge Clem nor attorney Cotton took any steps to have the Photocopied Order entered in the Court's records. Cotton, however, took the court's seal and impressed it on the Photocopied Order over the South Central Way Property address written by Judge Clem to "authenticate" it. Cotton then gave the Photocopied Order, which she obtained through misrepresentation and fraud, to the wife for her use in preventing the husband from removing property from the South Central Way Property.
Although Cotton knew of the husband's counsel and had the obligation to provide a copy of the "order" to him she chose not to as to perpetuate the fraud.
On December 29, 2007, the husband went to the South Central Way Property and began loading his personal property on a truck, relying on the lawfully entered Personal Property Order giving him permission to do so. Then, almost as scripted, wife arrived at the South Central Street Property, called the police, showed the officers who arrived the fraudulent Photocopied Order, and asked them to arrest the husband. Although they declined to arrest him, they required him to unload his personal property from his truck and leave without it.
On January 8, 2008, Norrick filed a second motion to allow the husband to remove his personal property from the South Central Way Property. The court granted the motion, but when he went back to the South Central Way Property, some of his personal property that had been there on December 29, 2007, was, surprise, surprise, no longer there. Husband has been unable to recover the missing property. This really amounts to nothing less than the wife and attorney Cotton involving themselves in a scheme to steal the husband's personal property through fraudulently obtaining a court order which allowed them to do so.
Attorney Cotton not only engaged in an improper ex parte communication with a judge, but she also affirmatively misrepresented to him a material fact, telling him that the South Central Way Property address had been inadvertently left out of the original Order for Protection she asked him to revise when, in fact, Magistrate Clase had crossed out the address and initialed the change to make clear that the alteration was intentionally made by the court. The accuracy of documents utilized by a tribunal in a proceeding is of the utmost importance to the administration of justice, and fraudulent alteration of such documents by an officer of the court is therefore serious misconduct. See Matter of Darling, 685 N.E.2d 1066, 1068 (Ind. 1997). Although Cotton did not fraudulently alter the original Order for Protection, her misrepresentation of a material fact to Judge Clem produced a similar result.
In the fifteen days between receiving the Photocopied Order and her client's use of the order to prevent the husband from retrieving his property, attorney Cotton took no steps to notify the husband or his counsel of the ex parte communication with a judge, to make the Photocopied Order part of the court record, to send the husband or his counsel a copy of it, or to alert them that the original Order for Protection had purportedly been altered to directly contradict the valid order permitting the husband to remove his property from the South Central Way Property. Her conduct subjected the husband to the risk of arrest and caused him an economic injury that will not be fully remedied by Cotton's tender of $1,275 as restitution for attorney fees he incurred.
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of thirty (30) days, beginning February 7, 2011. Respondent 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, Respondent shall be automatically reinstated to the practice of law, subject to the conditions of Admission and Discipline Rule 23(4)(c).
Justice Sullivan dissented from the majority and in his opinion suggested a suspension of 90 days. I think the punishment should be much harsher. This is not a simple matter of lying to a judge or falsifying an order.
Attorney Jane G Cotton was involved in a common scheme of filing a Petition for an Order of Protection, then filing a Petition for Dissolution of Marriage and using the protection order to gain a tactical advantage in the divorce, often times to deprive the children of access to the responding parent although that is not revealed in this case. What Cotton did was instead for financial gain.
Once the husband was able to get a court to allow him to retrieve his valuable personal property attorney Cotton hatched a plan to fraudulently obtain an order that would allow her client to keep the husband from getting his property. In essence Cotton masterminded a plan to steal the husband's property, something for which she should be charged and convicted for as the common criminal she is.
So if you have encountered attorney Jane G Cotton and are considering hiring her as your attorney I strongly advise against it. You could end up being a co-conspirator in a criminal scheme. If you are involved in a proceeding in which Cotton represents the opposing party then you must make it clear to everyone involved that Cotton will be suspended in February 2011.
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