Matter of Scionti
1994 Ind. LEXIS 31, 1994 WL 90545, 630 N.E.2d 1358 (1994)
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Rule of Law:
An attorney violates the Rules of Professional Conduct by counseling a client to engage in conduct the attorney knows is criminal and by engaging in conduct prejudicial to the administration of justice, particularly when the advice leads to the violation of repeatedly affirmed court orders, even if the attorney claims a good faith belief in the order's invalidity or concern for a child's welfare.
Facts:
- On April 25, 1990, Gary and Annette Smoot's marriage was dissolved.
- On July 25, 1990, a court order granted Annette custody of their minor son, with Gary granted visitation rights every other weekend from Friday at 5:00 p.m. to Sunday at 6:00 p.m.
- On December 5, 1990, the Delaware County Prosecutor charged Annette with child molesting, but the Smoots' minor son remained in Annette's custody.
- On September 20, 1991, Kevin L. Scionti entered his appearance on behalf of Gary in a post-dissolution proceeding to challenge the terms and conditions of the July 1990 custody order.
- On November 8, 1991, Gary picked up his minor son for visitation but, on the advice of Scionti, failed to return his son on November 10, 1991, thus violating the July 1990 court order.
- During the period when Gary unlawfully retained custody of his son, he maintained regular telephone conversations with Scionti.
- On November 12, 1991, Annette was charged by information with intimidation and obstruction of justice, alleging she struck her minor son and coached him not to testify against her.
Procedural Posture:
- A disciplinary complaint was filed against Kevin L. Scionti with the Indiana Supreme Court Disciplinary Commission, charging violations of Rules 1.2(d) and 8.4(d) of the Rules of Professional Conduct for Attorneys at Law.
- A Hearing Officer was appointed pursuant to Ind.Admission and Discipline Rule 23, Section 11(e), who conducted a hearing and subsequently tendered findings of fact and conclusions of law.
- Scionti timely petitioned the Indiana Supreme Court for review, challenging the Hearing Officer's conclusions of law.
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Issue:
Does an attorney violate Professional Conduct Rules 1.2(d) and 8.4(d) by advising a client to retain custody of a minor child in direct violation of multiple court orders, knowing that such conduct could be criminal and that the client's actions are prejudicial to the administration of justice?
Opinions:
Majority - PER CURIAM.
Yes, an attorney violates Professional Conduct Rules 1.2(d) and 8.4(d) by counseling a client to engage in conduct that the attorney knows is criminal and by engaging in conduct prejudicial to the administration of justice when the attorney advises a client to disregard a valid court-ordered child visitation schedule. The court found clear and convincing evidence that Kevin L. Scionti counseled his client, Gary Smoot, to unlawfully retain custody of his son, in direct violation of a court order. Scionti, an experienced attorney, should have been aware that interference with custody is a criminal violation under Indiana Code Section 35-42-3-4. The court rejected Scionti's argument that his advice was justified by a good faith belief regarding the order's validity, noting that the trial court judge had signed an ex parte order reaffirming the original custody terms, and had denied Scionti's request to remove that order and his subsequent application for emergency custody. These actions repeatedly affirmed Gary Smoot's legal obligation to return the child. While acknowledging Scionti's misconduct was not motivated by personal gain and was attributable to concern for the child's welfare, the court concluded that his method was unacceptable and reflected a disregard for the judicial process, warranting a public reprimand.
Dissenting - SHEPARD, Chief Justice
No, the sanction of a simple reprimand for attorney Scionti is too lenient given the severity of his misconduct, which directly undermined the authority of the courts. Chief Justice Shepard pointed out the disparity in treatment: Gary Smoot, the client, spent 90 days in jail for contempt resulting from following Scionti's advice, while Scionti received a lesser punishment. The Chief Justice noted that Scionti did not express any apology or regret for his actions and continued to argue that he did not violate the rules. Scionti's conduct was prejudicial to the administration of justice because the authority of the courts depends on lawyers and their clients obeying court orders. Therefore, a more severe sanction was warranted.
Analysis:
This case strongly affirms the ethical imperative for attorneys to uphold court orders and refrain from advising clients to engage in illegal conduct, even if motivated by what they perceive as their client's best interest or the welfare of a minor. It clarifies that an attorney's subjective 'good faith belief' that an order is invalid is insufficient to excuse non-compliance, especially when the order has been repeatedly affirmed by judicial rulings. The decision also underscores that lawyers must be cognizant of the criminal implications of actions taken in civil disputes, as advising a client to violate a civil order can expose both the client and the attorney to criminal liability and disciplinary action.
