author: PER CURIAM.

text:
    STATE of Indiana ex rel. Glenn D. COMMONS, et al., Relators, v. The Hon. John R. PERA, as Chief Judge of the Lake Superior Court, et al., Respondents.
    No. 45S00-1303-OR-209.
    Supreme Court of Indiana.
    May 17, 2013.

      R. Cordell Funk, Crown Point, IN, Attorney for the Relators.
    Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Chief Counsel, Thomas M. Fisher, Solicitor General, Kyle Hunter, Deputy Attorney General, Indianapolis, IN, Attorneys for the State of Indiana.
    Karl L. Mulvaney, Nana Quay-Smith, Briana L. Clark, Bruce A. Kotzan, Indianapolis, IN, Attorneys for the Lake Superior Court.
   PER CURIAM.

This Court has exclusive, original jurisdiction to supervise the exercise of jurisdiction of lower state courts. See Ind. Const, art. 7, § 4; Ind. Original Action Rule 1. Relators have filed this proceeding under the Indiana Original Action Rules, seeking a writ of mandamus and prohibition regarding the filling of the vacancy on the bench of the Lake Superior Court’s Juvenile Division. For reasons explained below, we grant in part and deny in part the relief sought by Relators.

Background

Relators Glenn D. Commons, Jeffrey Miller, and Charlotte Ann Peller are magistrates in the Lake Superior Court, Juvenile Division. This opinion refers to them collectively as “the Magistrates.” Respondents are the Lake Circuit Court, the Lake Superior Court, and the Judges thereof. See Orig. Act. R. 1(C). Respondents are referred to collectively here as “the Judges.”

There is no underlying case from which this original action arises, but the relevant facts are undisputed. The Magistrates complain about a decision made by the Judges at their meeting on February 12, 2013. At that meeting, a majority voted to allow Judge Nicholas J. Schiralli to be reassigned from the Lake Superior Court’s County Division to its Juvenile Division, upon the then-upcoming resignation of Judge Mary Beth Bonaventura, who had been presiding over the Superior Court’s Juvenile Division. (Relators’ Record at 1-5.) The Magistrates characterize the decision made by this vote as an en banc ruling or order sufficient to authorize them to seek relief through an original action in the Supreme Court.

The Magistrates filed this original action on March 20, 2013, seeking both an emergency writ and a permanent writ of mandamus and prohibition. On March 21, this Court issued an emergency writ, which (1) stayed any proceedings by the Judges concerning the transfer of Judge Schiralli to the Juvenile Division; (2) announced that this Court would appoint a judge pro tem-pore to preside in the Juvenile Division until this Court could rule upon the request for a permanent writ; and (3) gave the Judges until April 8 to file a brief opposing issuance of the permanent writ.

On April 5, the Lake Superior Court and its Judges filed a brief opposing issuance of the permanent writ, and the Lake Circuit Court and its Judge soon joined in that brief. With leave of this Court, the Magistrates filed a reply brief on April 16, the Indiana Attorney General (representing the State) filed a brief on April 18, and the Judges filed a reply brief on April 23.

Discussion

The writ of mandamus is an extraordinary remedy, equitable in nature and viewed with disfavor. State ex rel Woodford v. Marion Super. Ct., 655 N.E.2d 63, 65 (Ind.1995). Writs of mandamus and prohibition will not be issued unless the relator can show a clear and obvious emergency where the failure of this Court to act will result in substantial injustice. State ex rel. City of New Haven v. Allen Super. Ct., 699 N.E.2d 1134, 1136 (Ind.1998). Writs of mandamus and prohibition will be issued only where the trial court has an absolute duty to act or refrain from acting. Id.

The Magistrates request a permanent writ of mandamus and prohibition (1) declaring that Judge Schiralli cannot be reassigned from the County Division to the Juvenile Division; and (2) ruling that no current Judge of the Superior Court is eligible for transfer to the Juvenile Division and that the only way the judgeship of the Juvenile Division can be filled is by using the statutory merit-selection process.

I.

The Magistrates’ primary argument is that a transfer of Judge Schiralli to the Juvenile Division would violate Indiana Code section 33-33-45-21(e), which applies only to the Lake Superior Court. The statute provides, in its entirety,

(a) The [Lake Superior] court is divided into civil (including probate), criminal, county, and juvenile divisions. The work of the court shall be divided among the divisions by the rules of the court.
(b) Seven (7) judges comprise the civil division. Four (4) judges comprise the criminal division. Four (4) judges comprise the county division. One (1) judge comprises the juvenile division.[] However, the court by rule may alter the number of judges assigned to a division of the court if the court determines that the change is necessary for the efficient operation of the court.
(c) The court by rule may reassign a judge of the court from one (1) division to another if the court determines that the change is necessary for the efficient operation of the court. The court by rule may establish a rotation schedule providing for the rotation of judges through the various divisions. The rotation schedule may be used if the court determines that an emergency exists. However, a senior judge of any division may not be reassigned or rotated to another division under this subsection.
(d) The chief judge of the court may assign a judge in one (1) division of the court to hear a case originating in another division of the court, and may reassign cases from one (1) judge to another, if the chief judge determines that the change is necessary for the efficient operation of the court.
(e) A judge of a division of the court who has not been appointed to the court under section 38 of this chapter is not eligible to be reassigned, rotated, or transferred to the other divisions of the court. However, a judge of a division of the court who has not been appointed to the court under section 38 of this chapter may apply to fill a vacancy in another division of the court through appointment as provided under this chapter.

Ind.Code § 33-33-45-21 (emphasis added). The italicized language in subsection 21(e) was added to the statute two years ago in Public Law 201-2011, effective July 1, 2011. Section 38, in turn, provides, “A vacancy occurring on the court shall be filled by appointment of the governor from a list of three (3) nominees presented to the governor by the judicial nominating commission.” I.C. § 33-33-45-38(a).

The Magistrates argue that because Judge Schiralli was not appointed to the Lake Superior Court under the merit-selection process described in section 38, Indiana Code section 33-33-45-21(e) prohibits his transfer from the County Division to the Juvenile Division. The Judges contend that Judge Schiralli was elected in 1976 to a four-year term on the County Court of Lake County and was later elected to the Lake Superior Court, once the County Division became part of the Lake Superior Court. (See Br. in Opp. at 4, 16-18.) In other words, the Judges implicitly acknowledge that he was not appointed through the merit-selection process.

The Judges respond that the prohibition on transfer in Indiana Code section 33-33-45-21 (e) cannot be enforced because it conflicts with the Lake County courts’ “transfer rule.” The genesis of this transfer rule is an “Administrative Order Adopting A Plan For The Allocation Of Judicial Resources For Calendar Year 2000,” adopted by the Lake Circuit and Superior Courts in December 1999, which reads, in part:

IT IS, THEREFORE, ORDERED, AND DECREED....
9. Selection of Judge to Transfer Court. In the event a new court is created or a court is vacated in the Superior Court, a sitting judge of the Superior Court may elect to serve in the new or vacated court. Should more than one judge wish to serve in a court under this provision, the judge with the most seniority shall prevail. In the event two or more judges with equal seniority wish to serve in a court, the decision will be made by lot.

(Relators’ Record at 14, 17.) On January 6, 2000, this Court issued an “Order Approving District Caseload Plan,” which found that the plan submitted by the Lake County courts should be adopted and approved it. (Id. at 6-7.)

On several subsequent occasions, the Lake County courts requested that this Court approve amendments to their caseload allocation plan that did not affect the transfer rule, and this Court approved those amendments. In fact, since the transfer rule’s inclusion in the 2000 caseload allocation plan order, the Lake Superior Court has continued to recognize, recite, and apply the transfer rule, including when certain merit-selected judges were transferred to different courtrooms within the Civil Division in 2007 and 2012 when a vacancy arose. (See Reply to the Briefs of the Attorney General and the Relators, Exhibits A & B.) It is this transfer rule that the Judges cited when voting in February 2013 to approve Judge Schiralli’s transfer from the County Division to the Juvenile Division. (Relators’ Record at 1-5.)

The Judges acknowledge Indiana Code section 33-33-45-21(e)’s prohibition on transfer and reassignment of a non-eligible judge, but they contend the prohibition cannot be enforced because it conflicts with the local transfer rule. The Judges cite Indiana Code section 34-8-1-3, which provides:

The supreme court has authority to adopt, amend, and rescind rules of court that govern and control practice and procedure in all the courts of Indiana. These rules must be promulgated and take effect under the rules adopted by the supreme court, and thereafter all laws in conflict with the supreme court’s rules have no further force or effect.

(Emphasis added.) From this, the Judges concluded that “even the legislature has recognized that this Court’s approval of the Lake County Superior Court Transfer Rule must therefore be given effect to the extent that the addition of Section (e) of I.C. § 33-33-45-21(e) is found to conflict with the Transfer Rule.” (Br. in Opp. at 21-22.)

The primacy of this Court’s rules of practice and procedure, recognized in Indiana Code section 34-8-1-3 (“thereafter all laws in conflict with the supreme court’s rules have no further force or effect”) does not apply to the transfer rule because the transfer rule is not a rule of this Court. The Lake County courts adopted the transfer rule as part of their “Administrative Order Adopting A Plan For The Allocation Of Judicial Resources For Calendar Year 2000,” in response to an order issued by this Court on July 16, 1999, requiring the development of local caseload plans; this Court reviewed and approved that plan, noting the Court intended to require periodic revision of the local plan. (Relators’ Record at 6.) But our order approving the Lake County courts’ plan was not a rule of this Court governing practice and procedure “promulgated and tak[ing] effect under the rules adopted by the supreme court,” and, so, the transfer rule is not a rule of this Court as contemplated in Indiana Code section 34-8-1-3. Moreover, while trial courts may establish local rules for their own governance, those local rules may not conflict with the rules established by this Court or by statute. Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 645-46 (Ind.2012) (citing I.C. § 34-8-1^). Consequently, we disagree with the Judges’ assertion that the local transfer rule trumps, by operation of Indiana Code section 34-8-1-3, the prohibition on trans-fer of a non-eligible judge in Indiana Code section 33-33^f5-21(e).

To the extent the Judges suggest Indiana Code section 33-33-45-21(e) is unconstitutional, again we disagree. A statute is presumed constitutional; a party challenging its constitutionality must rebut that presumption. McManus v. State, 814 N.E.2d 253, 255 (Ind.2004). The presumption of constitutionality has not been overcome.

The Indiana Constitution divides the functions of the government into three departments (the Legislative, the Executive, and the Judicial) and provides that “no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.” Ind. Const, art. 3, § 1. Generally, this provision recognizes “that each branch of the government has specific duties and powers that may not be usurped or infringed upon by the other branches of government.” State v. Monfort, 723 N.E.2d 407, 411 (Ind.2000).

The Indiana Constitution gives the Legislature the power to create superior courts. Monfort, 723 N.E.2d at 410; see Ind. Const. art. 7, § 1 (“The judicial power of the State shall be vested in one Supreme Court, one Court of Appeals, Circuit Courts, and such other courts as the General Assembly may establish”). The Judges identify no authority precluding the Legislature from also providing a method for selection of the judges for the courts it creates. See In re Public Law No. 305 and Public Law No. 309 of Indiana Acts of 1975, 263 Ind. 506, 334 N.E.2d 659, 671-72 (1975) (holding that new legislation providing for non-partisan elections as the method for filling future vacancies that would occur in three new judgeship positions created for the Van-derburgh Superior Court was “a decision of the legislature which is within their power to make.”). Moreover, the prohibition on transfer in Indiana Code section 33-33-45-21(e) is not unique; it is only one example of legislative limitation on a superior court’s transfer of judges from one division to another division. See, e.g., I.C. § 33-33-2-39(a) (providing that in Allen Superior Court, a judge may transfer divisions but only once); I.C. § 33-33-45-21(c) (providing that in Lake Superior Court, “a senior judge of any division may not be reassigned or rotated to another division under this subsection”).

All of this leads us to conclude that Indiana Code section 33-33-45-21(e) is constitutional, applies here, and precludes the Judges from transferring, rotating, or reassigning Judge Schiralli from the County Division to the Juvenile Division. This prohibition, however, does not preclude Judge Schiralli from applying to be appointed, under the merit-selection process in Indiana Code section 33-33-45-38, to fill a vacancy in the other divisions of the court. See I.C. § 33-33-45-21(e).

II.

Although we grant part of the relief the Magistrates seek, we decline the Magistrates’ broader argument that no Judge may be reassigned to the Juvenile Division because “there is no legal basis to permit the transfer of any Judge in the Superior Court of Lake County from one division to another.” (Relators’ Br. at 12 (emphasis added).)

The Lake Superior Court “may make and adopt rules and regulations for conducting the business of the court_” I.C. § 33-33-45-8(a). And it “by rule may reassign a judge of the court from one (1) division to another if the court determines that the change is necessary for the efficient operation of the court.” I.C. § 33-33-I5-21(c).

The Magistrates contend the Superior Court has no rule in effect allowing for such a transfer. Although the Magistrates and the Attorney General argue that the Superior Court’s transfer rule expired or was superseded, those arguments are unavailing. The record shows that the Judges adopted the transfer rule as part of a case management plan for the efficient operation of the Superior Court more than a decade ago, received Supreme Court approval of that plan, and have continually relied on their transfer rule since then. For purposes of this original action, we conclude that the Lake Superior Court follows a rule — the transfer rule — for efficiently operating and conducting its business. Therefore, we deny the Magistrates’ request for a permanent writ that would declare that no Judge may be transferred or reassigned to the Juvenile Division.

Conclusion

Indiana Code section 33-33^5-21(e) prevents the Judges from reassigning, transferring, or rotating Judge Schiralli from the County Division to the Juvenile Division. However, this prohibition does not preclude him from applying to be appointed, under the merit-selection process in Indiana Code section 33-33-45-38, to fill a vacancy in the other divisions of the court. The Court denies the Magistrates’ request for a permanent writ that would more broadly prohibit any current Judge from being transferred or reassigned to the Juvenile Division.

This opinion is final. No petitions for rehearing or motions to reconsider shall be filed. Orig. Act. R. 5(C). The Clerk is directed to certify this opinion as final and to send a certified copy to each of the Respondent Judges and to all counsel of record.

DICKSON, C.J., and RUCKER, DAVID, MASSA, and RUSH, JJ., concur.

      . Despite the procedural irregularity of this original action, the Judges agree with the Magistrates that this Court should "exercise its original jurisdiction and resolve the issues presented.” (Br. in Opp. at 1 n. 1.)

      . On March 22, this Court appointed Senior Judge Thomas W. Webber, Sr., to serve as judge pro tempore in the Juvenile Division, effective March 25.

      . On April 1, this Court issued an order requiring mediation and appointing the Hon. Frank Sullivan, Jr. (Ret.) as mediator. The mediator filed a report on May 7, stating that mediation was held and the issues between the Magistrates and the Judges were not settled. The Court expresses its gratitude for the mediator’s service.

      .“The superior court of Lake County consists of sixteen (16) judges plus the Lake circuit court judge if the circuit court judge chooses to sit on the superior court of Lake County.” I.C. § 33-33-45-26.

      . Cf. State v. Holtsclaw, 977 N.E.2d 348, 350 (Ind.2012) (citing I.C. § 34-8-1-3 and holding that where there was a conflict between I.C. § 35-38-4-2 and Indiana Appellate Rule 9 (a rule promulgated by this Court under the rale-making procedure set out in Trial Rule 80) regarding the amount of time the State has to initiate an appeal in a criminal case, "the former must give way to the latter.”).


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Arthur J. USHER, IV, Respondent.
    No. 49S00-1105-DI-298.
    Supreme Court of Indiana.
    May 17, 2013.

      S. Andrew Burns, Indianapolis, IN, Attorney for the Respondent.
    G. Michael Witte, Executive Secretary, Seth T. Pruden, Staff Attorney, Indianapolis, IN, Attorneys for the Indiana Supreme Court Disciplinary Commission.
   Attorney Discipline Action

PER CURIAM.

We find that Respondent, Arthur J. Usher, IV, committed attorney misconduct by, among other things, engaging in a pervasive pattern of conduct involving dishonesty and misrepresentation that was prejudicial to the administration of justice. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least three years without automatic reinstatement.

This matter is before the Court on the report of the hearing officer appointed by this Court to hear evidence on the Indiana Supreme Court Disciplinary Commission’s “Verified Complaint for Disciplinary Action,” and on the post-hearing briefing by the parties. Respondent’s 1997 admission to this state’s bar subjects him to this Court’s disciplinary jurisdiction. See Ind. Const, art. 7, § 4.

Background

Conduct involving “Jane Doe.” During the summer months of 2006, Respondent became acquainted with Jane Doe, a law student at the Indiana University McKinney School of Law. Respondent was a partner at the law firm of Bose McKinney & Evans (“Bose”), where Jane Doe was working as a summer intern. A social relationship between Respondent and Jane Doe developed after she returned to law school for her third year. By that time, Respondent had departed Bose and had become a partner at the law firm of Krieg DeVault LLC (“Krieg DeVault”).

Although Respondent expressed an interest in having a romantic relationship with Jane Doe, she consistently declined, telling him she wished to remain only friends. In 2008, their relationship began to deteriorate due primarily to Respondent’s continued pursuit of a romantic relationship.

In July of 2008, Respondent asked the producer of a horror movie in which Jane Doe had appeared to help him obtain a clip from another movie in which Jane Doe also appeared. The producer sent Respondent a clip from that movie that appeared to show Jane Doe in a state of undress (“the clip”). After Respondent advised Jane Doe of his meeting with the producer, Jane Doe decided to end their friendship. Respondent then began attempting to humiliate Jane Doe and to interfere with her employment prospects.

In August of 2008, Respondent sent the clip to an attorney at Bose, where Jane Doe had already accepted a job offer. Respondent attempted to convince the attorney that Jane Doe’s appearance in a horror film in a state of undress would have an adverse effect on the ability of Bose to retain and/or attract clients. Suspicious of Respondent’s motives, the attorney did not take Respondent’s suggestion to send the clip to the firm’s executive committee. Jane Doe commenced her employment with Bose despite Respondent’s efforts to interfere.

On September 17, 2008, Respondent sent Jane Doe an email accusing her of lying to and misleading him regarding her affections. Jane Doe responded with an email stating: “Leave me alone. Do not contact me. You have been harassing me for months now. If you do not stop harassing me, I will file for a restraining order.”

Respondent then decided to publish the clip to a much wider audience. To accompany the clip, he drafted a fictitious email thread intended to appear to be an exchange of opinions among lawyers and other fictitious persons (“the email”). The email included the following excerpts:

[Subject line:] Firm slogan becomes “Bose means Snuff Porn Film Business” w/addition of [Jane Doe]
This exchange among other women was just too humorous not to share. Since reading such e-mails from the bottom up is a pain I even rearranged everything in real time.
All I can say is that I googled [Jane Doe] after seeing the video clip and there does not appear to have been any way for Bose McKinney to have known about this.
I think you are failing to understand how harmful [Jane Doe]’s behavior was to all female professionals, and the incredible stupidity in acting in such a film. A friend happened to wander into a movie theater on the east side of Indianapolis and bought a ticket and the DVD for this movie this past summer (some limited multi-evening engagement). The DVD came to me with a note about “When can we expect to see you getting naked in court?”
Having now subsequently seen the entire film, what is really troubling from a feminist perspective was that a female lawyer played the central role and/or otherwise blessed a film project in which the entire plot lines a woman being repeatedly brutalized by a man.... This movie was a disgusting misogynistic piece of garbage....
Quite frankly, I can not [sic] believe Bose McKinney employs this woman.
There are legions of plain faced big breasted blondes who are such hacks as actresses that they are gladly shedding their clothes (or doing anything else) to get in front of a camera. It is troubling that someone you would think would know better after making it through law school is such a bundle of insecurities that they would make such a film. Who knows, maybe she is not that bright and took a similar approach to getting hired?
Free speech rights aside, professional women (now being defined as women with a professional degree) do not need the [Jane Does] of the planet eroding their hard earned respect in the marketplace.
So, given that you told me that your company does about one to one and a half million dollars a year of work with outside counsel, the solution is simple. Refuse to do business with the Bose firms of the world when they employ such people. Moreover, encourage other female in-house counsel to adopt a similar approach.
That firm is free to hire idiots who participate in films demeaning to women. And we female in-house counsel are free to never use the Bose firm when they employ sexists (or those who denigrate women, or racists, or homophobes, etc.). So I am forwarding this e-mail chain to you to explain the situation and hope you will embrace what is basically my invitation to jot down a note to yourself not to use this firm or similar firms.

The email also contained a link to a site where the movie could be purchased on DVD, with the suggestion that copies be sent to in-house counsel.

Respondent recruited his paralegal at Krieg DeVault, “KB,” to disseminate the email. KB had been fired from Bose and was very loyal to Respondent. Respondent gave KB a flash drive containing the email contents and the clip. Respondent suggested to KB that the recipients of the email include attorneys at Bose, that it be sent from a location that would avoid it being traced back to them, that the email appear to have originated from somebody with “clout” at Bose, and that it be sent after Respondent departed for vacation over the upcoming Thanksgiving holiday. In her testimony, KB disclaimed any knowledge of the contents of the email or acquaintance with Jane Doe. She believed the email was simply some sort of prank.

On November 28, 2008, KB took the flash drive to a Kinko’s location in Indianapolis, created an email account using the name of the managing partner at Bose, and used that account to send the email and clip to fifty-one persons, a large number of whom were from Bose. Other recipients worked at Barnes & Thornburg, Baker & Daniels, Locke Reynolds, Ice Miller and Krieg DeVault. When Respondent returned to Krieg DeVault from his vacation in December of 2008, he was confronted with a protective order Jane Doe had obtained against him, to which the email was attached. Respondent complied with Krieg DeVault’s demand that he resign. Since 2009, Respondent has practiced as a sole practitioner.

Jane Doe takes pride in her acting and does not hide the fact that she has appeared in a number of films. In a scene in the clip, Jane Doe’s character undresses, but a body-double was used in the part showing nudity. Respondent was aware of this fact but did not disclose this in the email, leaving the impression that Jane Doe appeared topless in the movie. The hearing officer rejected Respondent’s assertion that the email was a prank or humorous. Rather, it was a mean-spirited and vindictive attempt to embarrass and harm Jane Doe, both personally and professionally.

Conduct in civil action and disciplinary action against Respondent. On February 27, 2009, Jane Doe filed a grievance with the Commission against Respondent. The Commission sent a letter to Respondent requesting a written response. Respondent admits that his response was less than required from members of the bar. In his answer to the Commission’s verified complaint against him, Respondent stated that he did not draft the subject line of the email. At the hearing in this matter, however, Respondent admitted to having drafted the subject line.

On December 23, 2009, Jane Doe filed a civil lawsuit against Respondent asserting claims against him arising out of sending the email. Jane Doe sent Respondent discovery requests, including requests for admissions (“RFAs”). Those RFAs asked Respondent to admit whether he composed the email, whether he caused it to be sent, whether he asked or directed another individual to send the email, and whether he knew who sent the email. Respondent’s response to all was “Deny.” He was asked to admit whether the email was sent at his suggestion. His response was that he did not know “what, if any, ‘suggestions’ affected the sender” of the email.

The Commission charged Respondent with violating the following Indiana Rules of Professional Conduct:

8.8(a)(1): Knowingly making a false statement of fact to a tribunal.
8.1(a): Knowingly making a false statement of material fact to the Disciplinary Commission in connection with a disciplinary matter.
8.1(b): Failure to disclose a fact necessary to correct a misapprehension known by the person to have arisen in a disciplinary matter.
8.4(a): Knowingly assisting another to violate the Rules of Professional Conduct, or violating the rules through the acts of another.
8.4(b): Committing a criminal act (identity deception) that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
8.4(c): Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
8.4(d): Engaging in conduct prejudicial to the administration of justice.
8.4(g): Engaging in conduct that was not legitimate advocacy, in a professional capacity, manifesting bias or prejudice based upon gender.

After conducting an evidentiary hearing, the hearing officer filed his report to this Court on November 14, 2012, concluding that Respondent violated all of the above rules except Rule 8.4(b) and 8.4(g). Both Respondent and the Commission have filed petitions asking this Court to review the hearing officer’s report.

Discussion

A. Reach of the Rules of Professional Conduct

Actions regarding the email. Respondent concedes that the email was intended to shame Jane Doe but argues that it was protected under the First Amendment of the U.S. Constitution. Respondent also argues that his actions regarding the email were not done in a professional capacity and thus the Rules of Professional Conduct do not apply to these actions.

Respondent cites no case in which speech similar to his has been held to be beyond disciplinary sanction based on the First Amendment. This Court has imposed discipline on lawyers for speech found to violate their professional duties, as well as for unethical activities outside the professional arena. See, e.g., Matter of Dempsey, 986 N.E.2d 816, 2013 WL 1907774 (Ind. May 2, 2013) (scurrilous accusations against opponents and others); Matter of Holland, 911 N.E.2d 574 (Ind.2009) (false accusation of bribing a judge); Matter of Cloyd, 794 N.E.2d 1088 (Ind.2003) (untruthful statement to police); Matter of Haigh, 894 N.E.2d 550 (Ind.2008) (sexual misconduct with minors); Matter of Herthel, 760 N.E.2d 155 (Ind.2001) (untruthful statement to insurer); Matter of Peoples, 646 N.E.2d 669 (Ind.1995) (conversion of rental vehicles). We conclude that Respondent’s actions regarding the email are not beyond this Court’s disciplinary authority.

Ejfect of representation by counsel. Pointing out that he was represented by counsel in the civil case, Respondent argues that his actions in that case are beyond the reach of the Rules of Professional Conduct because they were not taken as an attorney but as a mere litigant. This Court, however, has suspended attorneys who knowingly made misstatements in discovery in civil cases as litigants. See, e.g., Matter of Richardson, 792 N.E.2d 871 (Ind.2003) (misstatements in interrogatory answers); Matter of Relphorde, 644 N.E.2d 874 (Ind.1994) (same). Respondent cites no case in which an attorney committing otherwise sanctionable misconduct (e.g., providing knowingly false discovery responses) has been relieved from responsibility just because the attorney took these actions through counsel. We agree with the hearing officer’s conclusion that “the Indiana Rules of Professional Conduct apply to an attorney who is a party to litigation, particularly when that attorney is not truthful in responding to discovery.”

B. Procedural and Evidentiary Issues

Due process. Respondent argues that the Commission failed to comply with procedures regarding additional charges of misconduct beyond those in Jane Doe’s grievance, particularly those related to allegedly false statements in the civil litigation and the disciplinary proceeding, citing Admis. Disc. R. 23(10)(d). Even assuming, arguendo, that the Commission failed to follow the' letter of this rule, the Commission’s verified complaint fully apprised Respondent of all the charges on which he was tried. We find no violation of due process.

Discovery. Respondent also accuses the Commission of violating its duties to respond to his discovery requests. A review of the documents he cites shows detailed responses by the Commission to his discovery requests. We detect no prejudicial deficiency in the Commission’s responses.

Alleged concession by Commission. Respondent argues that the Commission has conceded that his responses to the RFAs in the civil case were “literally” true. In support, he cites a statement in correspondence from a Commission staff attorney, which was not introduced into evidence. We have nevertheless examined this document and conclude that it refers only to some statements in Respondent’s initial response to the Commission. The Commission has never conceded that Respondent’s responses to RFAs in the civil case were “literally” true.

Findings of fact. After a review of the evidence and consideration of the parties’ arguments, we conclude that the hearing officer’s findings of fact, as summarized above and supplemented by Respondent’s own testimony, are supported by the evidence, and we therefore adopt them as this Court’s findings. Additional details will be supplied as needed in the discussion of the charges below.

C. Violations of the Rules of Professional Conduct

Rule 3.3(a)(1). The hearing officer concluded that Respondent violated this rule, which prohibits knowingly making a false statement of fact to a tribunal, by submitting false responses to RFAs in Jane Doe’s civil action.

Respondent expends much effort in trying to defend his responses to the RFAs. For example, he argues that he was justified in denying a RFA that he “composed” the email because he interpreted “composed” to mean preparing the email that was actually transmitted, that he was justified in denying that he asked or directed another person to send the email because he did not select the recipients or the email account name, and that he was justified in denying that he knew who sent the email because KB might have asked someone else to send it. In defense of his disclaimer of any knowledge about whether the email was sent at his “suggestion,” he testified that he “merely put[ ] the idea out there for” KB, and whether this was a “suggestion” went to KB’s mental state, which he could not know. Respondent asserts he was entitled to “exploit the infirmities of the discovery requests.”

Hyper-technical parsing of ordinary English words and sentences has been rejected in prior cases. See Matter of Fieger, 887 N.E.2d 87 (Ind.2008) (discipline imposed for calculated omissions on application for temporary admission); Smith v. Johnston, 711 N.E.2d 1259, 1264 (Ind.1999) (even if literally true, counsel’s affidavit created potential for misperception and was thus prejudicial to administration of justice); Matter of Fletcher, 694 N.E.2d 1143, 1147 (Ind.1998) (although judge’s inquiries were not “perfectly phrased or formulated with pinpoint precision,” Court found respondent actively concealed facts from judge); Binder v. Benchwarmers Sports Lounge, 833 N.E.2d 70 (Ind.Ct.App.2005) (even if technically correct, counsel’s statements were calculated to mislead opposing counsel). Respondent’s hide-and-seek approach to the RFAs reflects a gaming view of the legal system, which this Court has soundly rejected. See Smith v. Johnston, 711 N.E.2d at 1264.

We concur with the hearing officer’s conclusion that Respondent violated Professional Conduct Rule 3.3(a)(1) by knowingly submitting false responses to RFAs in Jane Doe’s civil action.

Rule 8.1(a). The Commission charged that Respondent violated this rule, which prohibits knowingly making a false statement of material fact to the Commission in connection with a disciplinary matter, by falsely denying in his answer to the Commission’s complaint that he had drafted the subject line of the email. At the hearing in the matter, Respondent testified that he had, in fact, drafted the entire email from the subject line down. Respondent offers no explanation for this discrepancy. We conclude that Respondent violated this rule as charged.

Rule 8.1(b). This rule requires a respondent “to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter.” Respondent admits that, in his response to the grievance against him, he was less than entirely forthcoming about his involvement with the email and thus violated this rule. Indeed, we find that Respondent’s response seems crafted to create misapprehensions rather than to dispel them.

Rule 84(a). We agree with the hearing officer’s conclusion that Respondent violated this rule, which prohibits violating the Rules of Professional Conduct through the acts of another, by procuring the aid of KB in disseminating the email.

Rule 84(b). This rule prohibits engaging in a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. The Commission charged Respondent with violating this rule by committing criminal identity deception, Indiana Code section 35-43-5-3.5, in connection with the email. The hearing officer concluded that the Commission had failed to meet its burden of proof that Respondent’s actions rose to the level of being criminal. We defer to the hearing officer’s conclusion on this point.

Rule 84(e). This rule bars a lawyer from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” We have already concluded that Respondent made misrepresentations in his responses to the Commission in this disciplinary action and in his responses to the RFAs in the civil suit.

We also conclude that he engaged in misrepresentation and dishonesty in his conduct involving the email — by giving it the false appearance of consisting of actual communications between female attorneys and other professionals, by including statements and implications he knew to be false, and by telling KB that the email was just a prank when it was actually a personal and professional attack on Jane Doe.

Respondent says that he crafted the email based on conversations he had with at least one female in-house counsel, naming just one. However, even if the views expressed in the email comported with those of an unnamed real person, this does not undermine the conclusion that Respondent made misrepresentations in the email, including that real in-house counsel were advocating a boycott of Bose based on its employment of Jane Doe. We reject Respondent’s attempt to dismiss the email as some sort of prank or parody when it contained deliberate misrepresentations of fact intended to embarrass Jane Doe personally and to harm Jane Doe and possibly Bose professionally.

Rule 84(d). We conclude that Respondent violated this rule, which prohibits conduct prejudicial to the administration of justice, by obstructing the civil action and this disciplinary action through knowingly making false statements of fact in those proceedings.

Rule 84(g): The Commission charged Respondent with violating this rule, which prohibits an attorney from engaging in conduct that is not legitimate advocacy, in a professional capacity, manifesting bias or prejudice based upon gender. The hearing officer concluded that the Commission had not met its burden of proof on this charge. We agree. The evidence supports a finding that the email was motivated by personal anger at Jane Doe in particular rather than by bias or prejudice against women in general.

Motion for Judgment as a Matter of Law. After the hearing officer filed his report, Respondent filed a “Motion for Judgment as a Matter of Law.” For the reasons above, we deny this motion.

D. Discipline

Our analysis of appropriate discipline entails consideration of the nature of the misconduct, the duties violated by the respondent, any resulting or potential harm, the respondent’s state of mind, our duty to preserve the integrity of the profession, the risk to the public should we allow the respondent to continue in practice, and matters in mitigation and aggravation. See Matter of Newman, 958 N.E.2d 792, 800 (Ind.2011).

Respondent’s misconduct involves pervasive dishonesty in the email, the civil action, and this disciplinary action. His misconduct involving the email was motivated by personal revenge and his intent was to harm Jane Doe personally and professionally. He continues to advance hyper-technical interpretations of various discovery requests as an excuse for his failure to provide truthful answers. His evasive attitude toward his duties in the civil and disciplinary actions suggests a danger to the profession and to the public if he continues in practice.

The hearing officer found the following facts in mitigation: (1) Respondent has no disciplinary history; (2) he expressed some remorse, but only about involving KB in his plan to humiliate Jane Doe; and (8) he was dealing with news that his sister had been diagnosed with cancer.

The hearing officer found the following facts in aggravation: (1) Respondent has not clearly shown that he appreciates the harm he has done to Jane Doe, and he still believes that the email was, in some way, justified; (2) Respondent’s email was the result of a carefully crafted plan; and (3) Respondent used a trusting subordinate to distance himself from the email and shield himself from the consequences.

Respondent has shown no substantial remorse or insight into his misconduct. It is this lack of insight that leads us to believe that a substantial sanction is necessary to ensure that the seriousness of his misconduct is impressed upon him and that similar misconduct is not repeated in the future. See Newman, 958 N.E.2d at 800. We conclude that Respondent should be suspended for a period of at least three years and that any possibility of reinstatement thereafter be available only upon satisfaction of Indiana’s rigorous standards for reinstatement, which require clear and convincing evidence of the petitioner’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 28(4)(b).

Conclusion

The Court concludes that Respondent violated the Indiana Professional Conduct Rules 3.3(a)(1), 8.1(a), 8.1(b), 8.4(a), 8.4(c), and 8.4(d), by, among other things, engaging in a pervasive pattern of conduct involving dishonesty and misrepresentation that was prejudicial to the administration of justice.

For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, without automatic reinstatement, beginning June 28, 2013. 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 minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(4).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this opinion to the Court’s website, and Thomson Reuters is directed to publish a copy of this opinion in the bound volumes of this Court’s decisions.

All Justices concur, except DAVID, J., who dissents regarding the sanction imposed, believing disbarment is warranted.

      . Respondent contends that he suggested that KB use a farcical name based on a Bose attorney's name as the purported origin of the fictitious email. We find, however, that the evidence supports the hearing officer rejection's of Respondent's testimony on this point.

      . At the time of the final hearing, Jane Doe’s civil action was still pending. Respondent now asserts that the case has since been settled "amicably” on the eve of trial with his payment of an undisclosed amount to Jane Doe. Thus, he argues, no harm befell anyone as a result of the fictitious email. The fact Respondent apparently paid to settle Jane Doe’s civil action may actually tend to show that she did suffer harm for which the payment was meant to compensate. In any case, however, we decline to consider facts that have not been properly presented and admitted into evidence.

      . We note that Respondent's counsel was required to abide by Respondent’s decisions concerning the objectives of the representation and to consult with Respondent as to the means by which they were to be pursued. See Prof. Cond. R. 1.2(a).

      . We also note that Respondent’s responses to the RFAs do not comply with Trial Rule 36(A), which states: "A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.”

      . We note that Respondent cites depression as contributing to deficiencies in his initial response to the grievance. There is some dispute about when Respondent's depression began and whether there is sufficient proof to back his assertion. In any event, depression is more appropriate to consider as a mitigator when the misconduct is caused by neglect or oversight. Here, Respondent’s misconduct was deliberate and dishonest.


text:
    Calvin MERIDA, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 69S01-1301-CR-24.
    Supreme Court of Indiana.
    May 17, 2013.
    Jennifer A. Joas, Madison, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   PER CURIAM.

An investigation showed Merida had been molesting a girl from the time she was five or six years old, starting perhaps as early as 2000. In all, Merida was charged with ten counts of child molesting covering the period from 2000 through 2007. After a jury was empanelled but before evidence was offered, Merida pled guilty to two counts of child molesting as Class A felonies. See Ind.Code § 35-42-4-3(a) (2008). The remaining counts were dismissed. The sentencing range for a Class A felony is from twenty years to fifty years; the advisory sentence is thirty years. See I.C. § 35-50-2-4 (2008).

The trial court imposed consecutive advisory sentences for an aggregate term of sixty years. As mitigating circumstances, the Court noted the guilty plea but did not accord it a lot of weight since the State and the victim had had to prepare for trial. The trial court also noted Merida’s lack of criminal history. The trial court discussed several aggravating circumstances. Meri-da was in a position of having care, custody and control of the girl, and his conduct occurred over a seven-year period. Also, as a result of the offense becoming known in the community, the girl no longer attends public school and does not go out with friends or talk with them on the phone as she once did. She has suffered an emotional impact greater than in the usual case, the trial court noted.

Citing Indiana Appellate Rule 7(B), the Court of Appeals revised the sentences by ordering them to run concurrently, thus reducing the aggregate term from sixty years to thirty years. See Merida v. State, 977 N.E.2d 406 (Ind.Ct.App.2012), vacated. We granted the State’s petition to transfer jurisdiction to this Court. See Merida v. State, 980 N.E.2d 841 (Ind. Jan. 11, 2013) (table); App. R. 56(B); 58(A).

The authority granted by Article 7, § 4 of the Indiana Constitution permitting appellate review and revision of criminal sentences is implemented through Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, and as interpreted by case law, appellate courts may revise sentences after due consideration of the trial court’s decision, if the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind.2003). The principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.

Having reviewed the matter, our collective judgment is that the sentence imposed by the trial court is not inappropriate under Appellate Rule 7(B), and does not warrant appellate revision. Accordingly, we affirm the sentence imposed by the trial court.

DICKSON, C.J., and RUCKER, DAVID, MASSA, and RUSH, JJ., concur.


text:
    Kirk B. LYNCH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 40S05-1301-CR-23.
    Supreme Court of Indiana.
    May 17, 2013.
    Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   PER CURIAM.

Evidence at Lynch’s trial showed that one evening in 2009, the mother of a twelve-year-old girl noticed her daughter had received an instant message through an internet account from Lynch, a man in his forties. While pretending to be the girl, the mother participated in an instant message conversation with Lynch. Lynch wanted to see the girl. In one colloquy, Lynch asked “[Y]ou know wat we gonna do don’t ya?” and he answered his own question, “[Ijmma bed you baby.” (spelling and grammar in the original). Lynch made arrangements to meet at a hotel. The mother contacted police, and they apprehended Lynch in the hotel parking lot. Lynch gave police several different explanations for being there. Lynch was arrested at the end of the police interview, and during the booking process, he said to a police sergeant, “[I] drove all this way and didn’t even get laid.” As relevant to these transfer proceedings, Lynch was convicted of Attempted Child Molesting, a Class A felony. See Ind.Code § 35-42-4-3(a) (2008) (defining the offense of child molesting); 35-41-5-1 (2008) (defining attempt).

The sentencing range for a Class A felony is twenty years to fifty years; the advisory sentence is thirty years. See I.C. § 35-504M (2008). The trial court imposed a sentence of forty years with five years suspended. The trial court noted the following aggravating factors: the “significant and substantial evidence” that Lynch had contacted other girls and “was an Internet sexual predator and prowler;” Lynch had carefully planned the crime; and his criminal history which included a prior felony conviction and two misdemeanor convictions. As mitigating factors, the trial court noted Lynch had a high school diploma and some employment history. Also, he had been diagnosed with paranoid schizophrenia, depression, and panic attacks, but the court noted there was no evidence linking these conditions to Lynch’s conduct in this case. The trial court found the aggravating factors outweighed the mitigating factors and justified a sentence in excess of the advisory term.

Citing Indiana Appellate Rule 7(B), a majority of the Court of Appeals panel revised the sentence to twenty years, the minimum term. See Lynch v. State, No. 40A05-1201-CR-26, 2012 WL 5381372 (Ind.Ct.App. Nov. 2, 2012) (mem. dec), vacated. We granted the State’s petition to transfer jurisdiction to this Court. See Lynch v. State, 980 N.E.2d 841 (Ind. Jan. 11, 2013) (table); App. R. 56(B) & 58(A).

The authority granted by Article 7, § 4 of the Indiana Constitution permitting appellate review and revision of criminal sentences is implemented through Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Under this rule, and as interpreted by case law, appellate courts may revise sentences after due consideration of the trial court’s decision, if the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind.2003). The principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.

Having reviewed the matter, our collective judgment is that the sentence imposed by the trial court is not inappropriate under Appellate Rule 7(B), and does not warrant appellate revision. Accordingly, we affirm the sentence imposed by the trial court and summarily affirm the decision of the Court of Appeals in all other respects. See App. R. 58(A)(2).

DICKSON, C.J., and RUCKER, DAVID, MASSA, and RUSH, JJ., concur.


text:
    Joseph A. DAVIS, Appellant, v. Herbert and Bui SIMON, Appellees.
    No. 49S04-1208-CT-498.
    Supreme Court of Indiana.
    May 21, 2013.
   PUBLISHED ORDER

On August 30, 2012, the Court granted a petition seeking transfer of jurisdiction over this appeal after an opinion by the Court of Appeals.

After further review of this case, including oral argument, the participating Justices are split 2-2 in their analysis whether the trial court should have denied the motion to dismiss.

When this Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated. Ind. Appellate Rule 58(C). Accordingly, the Court of Appeals’ opinion reported as Davis v. Simon, 968 N.E.2d 46 (Ind.Ct.App.2012), is reinstated as Court of Appeals precedent.

The Clerk is directed to certify the Court of Appeals’ opinion as final, to post a copy of this order on the Court’s website, and to send a copy of this order to all counsel of record, to LexisNexis, and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.

All Justices concur in this order, except MASSA, J., who is not participating.


text:
    In the Matter of Octavia F. SNULLIGAN, Respondent.
    No. 49S00-1301-DI-55.
    Supreme Court of Indiana.
    May 21, 2013.
   PUBLISHED ORDER CERTIFYING TERMINATION OF NONCOOPERATION SUSPENSION IN THIS CASE ONLY

Pursuant to Indiana Admission and Discipline Rule 23(10)(f), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Disciplinary Commission concerning a grievance filed against Respondent. On May 17, 2013, the Executive Secretary of the Disciplinary Commission filed a “Certification of Compliance,” stating that Respondent has now cooperated with its investigation in this case. Pursuant to Admission and Discipline Rule 23(10)(f)(3), the suspension from the practice of law imposed in this case is terminated as of the date the certification was filed. Respondent, however, is under one or more suspension orders entered in other case(s), which remain in effect.

The Court therefore ORDERS that Respondent’s suspension from the practice of law in this case only be shown as terminated as of May 17, 2013. Respondent’s suspension ordered in one or more other cases remains in effect, and Respondent shall not be shown as reinstated to the practice of law in this state until all causes for suspension are cured.

Pursuant to Admission and Discipline Rule 23(10)(f)(5) and Rule 2(h), Respondent’s failure to pay any outstanding costs assessed in this case by the due date of the next annual registration fee (October 1) will subject Respondent to an order of suspension from the practice of law.

The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.


text:
    In the Matter of Randy A. GODSHALK, Respondent.
    No. 45S00-1209-DI-537.
    Supreme Court of Indiana.
    May 23, 2013.
   PUBLISHED ORDER APPROVING STATEMENT OF CIRCUMSTANCES AND CONDITIONAL AGREEMENT FOR DISCIPLINE

Pursuant to Indiana Admission and Discipline Rule 23(11), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a “Statement of Circumstances and Conditional Agreement for Discipline” stipulating agreed facts and proposed discipline as summarized below:

Stipulated Facts: RM was charged with several crimes, including battery of JB, who was on probation resulting from theft conviction. Respondent entered his appearance on behalf of RM. After JB failed to appear for a deposition, Respondent moved to exclude her testimony in the case against RM. These events occurred in 2008-2009.

During the same time frame, an order to revoke JB’s probation was entered, JB was charged with operating a vehicle while intoxicated (“OWI”), and a bench warrant was issued for her arrest. JB went to Respondent’s office to hire him to represent her in the probation revocation and the OWI cases. A non-lawyer assistant agreed to the representation, agreed that Respondent would accept assignment of JB’s pre-trial release bonds as payment for his fees, prepared appearances using a rubberstamp for Respondent’s signature, and filed the appearances. At the time, Respondent and his assistant had sufficient information that they should have known JB was a victim and witness in RM’s criminal case. Eventually, Respondent was disqualified from representing RM and withdrew his representation of JB. Respondent did not seek any payment from either JB or RM.

The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with the Commission; (3) Respondent has acknowledged his misconduct and is remorseful; (4) when Respondent first met with JB, she falsely denied being the person who was a witness in RM’s case; (5) Respondent’s misconduct resulted from negligent supervision of a nonlawyer rather than a conscious attempt to benefit himself or another client; and (6) there is no evidence that either JB or RM was adversely affected by the simultaneous representation.

Violations: The parties agree that Respondent violated these Indiana Professional Conduct Rules prohibiting the following misconduct:

1.1: Failure to provide competent representation (by failing to check adequately for conflicts of interest).
1.7(a): Representing a client when the representation involves a concurrent conflict of interest.
5.3(b): Failure to make reasonable efforts to ensure that the conduct of a nonlawyer employee over whom the lawyer has direct supervisory authority is compatible with the professional obligations of the lawyer.
5.5(a): Assisting in the unauthorized practice of law.

We note that the Court has adopted the Indiana Professional Conduct Guidelines regarding the use of non-lawyer assistants to guide attorneys in complying with the Rules of Professional Conduct. In supervising his non-lawyer assistant, Respondent’s actions did not conform to the following guidelines:

9.8(a): A lawyer may not delegate to a non-lawyer assistant responsibility for establishing an attorney-client relationship.
9.3(b): A lawyer may not delegate to a non-lawyer assistant responsibility for establishing the amount of a fee to be charged for a legal service.

Discipline: The parties propose the appropriate discipline is a public reprimand. The Court, having considered the submissions of the parties, now approves the agreed discipline and imposes a public reprimand for Respondent’s misconduct.

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

The Clerk is directed to forward a copy of this Order to the hearing officer, to the parties or their respective attorneys, and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). The Clerk is further directed to post this order to the Court’s website, and Thomson Reuters is directed to publish a copy of this order in the' bound volumes of this Court’s decisions.

All Justices concur.


author: FRIEDLANDER, Judge.

text:
    Clematine HOLLINGSWORTH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1207-CR-617.
    Court of Appeals of Indiana.
    Feb. 22, 2013.
    Rehearing Denied April 16, 2013.

      Suzy St. John, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Following a bench trial, Clematine Holl-ingsworth was convicted of Public Intoxication, a class B misdemeanor. Hollings-worth appeals and argues that the failure to retroactively apply a recent amendment to the public intoxication statute to her offense constituted fundamental error.

We affirm.

In the early evening of May 12, 2012, Indianapolis Metropolitan Police Officer Benjamin Owens responded to a report of two women fighting in an Indianapolis apartment complex. When Officer Owens arrived, he encountered a crowd of people, including Hollingsworth. Some of the onlookers told Officer Owens that the women involved in the disturbance had run into a nearby house. Officer Owens then went behind one of the residences and found the two women trying to leave through the back door. When Officer Owens brought the women around to the front of the residences, Hollingsworth and the women began screaming at one another. Officer Owens told Hollingsworth to be quiet and, when she refused, placed her in handcuffs. At that time, Officer Owens noticed that Hollingsworth’s breath smelled like alcohol, her eyes were bloodshot and glassy, and her speech was slurred. Believing Hollingsworth to be intoxicated, Officer Owens placed her under arrest.

As a result of these events, the State charged Hollingsworth with disorderly conduct and public intoxication. A bench trial was held on July 2, 2012, at the conclusion of which Hollingsworth was acquitted of disorderly conduct and convicted of public intoxication. On July 27, 2012, Hollingsworth filed a motion for relief from judgment under Ind. Trial Rule 60(B), which was denied without a hearing on August 1, 2012. Hollingsworth now appeals.

The sole issue presented on appeal is whether an amendment to the public intoxication statute that took effect on July 1, 2012, should be applied retroactively to Hollingsworth’s offense. The version of the public intoxication statute in effect at the time of Hollingsworth offense provided that “[i]t is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in IC 35-48-1-9).” I.C. § 7.1-5-1-3 (West, West-law effective through May 81, 2012). The amended statute, which was approved by the General Assembly on March 19, 2012 and became effective on July 1, 2012, provides in relevant as follows:

(a) Subject to section 6.5 of this chapter^ ] it is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in IC 85-48-1-9), if the person:
(1) endangers the person’s life;
(2) endangers the life of another person;
(3) breaches the peace or is in imminent danger of breaching the peace; or
(4) harasses, annoys, or alarms another person.

Ind.Code Ann. § 7.1-5-1-3 (West, West-law current through 2012 2nd Reg. Sess.).

Hollingsworth argues that the 2012 amendment was remedial in nature and should therefore be applied retroactively to her offenses. See Brown v. State, 947 N.E.2d 486, 490 (Ind.Ct.App.2011) (holding that “retroactive application of a statute is appropriate when: (1) the new statute is remedial; (2) a strong and compelling reason exists for applying it retroactively; and (3) retroactive application does not violate a vested right or a constitutional guaranty”), trans. denied. Hollingsworth acknowledges, however, that she never brought the amendment to the trial court’s attention or raised the issue of retroactivity at trial or through her motion for relief from judgment, despite the fact that the amendment was approved nearly two months prior to the commission of the offense and became effective the day before her bench trial. In an attempt to avoid, waiver, Hollingsworth argues that the failure to retroactively apply the amended statute to her offense constitutes fundamental error.

Assuming without deciding that error occurred, Hollingsworth has not established that the error was fundamental. “The mere fact that error occurred and that it was prejudicial will not satisfy the fundamental error rule.” Absher v. State, 866 N.E.2d 350, 355 (Ind.Ct.App.2007). The fundamental error rule is “extremely narrow” and applies “only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939, 942 (Ind.2008).

Hollingsworth has failed to provide any analysis of her claims within the context of the fundamental error rule. In her principal appellate brief, Hollingsworth merely cites the fundamental error rule and makes a conclusory statement that “not applying the amended public intoxication statute retroactively would be fundamental error.” Appellant’s Brief at 4. In response to the State’s argument that Hollingsworth waived any claim of fundamental error due to her failure to develop a cogent argument, Hollingsworth makes another con-clusory statement in her reply brief, without citation to authority, that “the very essence of a ‘remedial statute’ is the notion that due process demands some laws can and should be applied retroactively.” Reply Brief at 1 (emphasis in original).

The general rule that statutes will be given pi’ospective effect only and the exception allowing retroactive application of remedial statutes when there are strong and compelling reasons for doing so are rules of statutory construction. See Brown v. State, 947 N.E.2d 486. Hollings-worth has not directed our attention to any authority suggesting that the rule allowing retroactive application of remedial statutes emanates from the Due Process clause or any other constitutional provision. Moreover, even if we assume that there exists a constitutional right to the retroactive application of remedial statutes, the mere fact that a constitutional right is implicated is insufficient to satisfy the fundamental error rule. Absher v. State, 866 N.E.2d 350. Simply asserting that error occurred and was harmful is insufficient to establish fundamental error. See id.

Hollingsworth also argues that “this would not be the first case where the issue of retroactive application of a remedial statute was raised for the first time on appeal.” Reply Brief at 2. In support of this assertion, Hollingsworth cites Martin v. State, 774 N.E.2d 43 (Ind.2002) and Palmer v. State, 774 N.E.2d 46 (2002). In both of those cases, however, the relevant statutory amendments at issue took place while the defendant’s appeal was pending. In this case, the General Assembly approved the amendment to the public intoxication nearly two months before Hollings-worth committed the instant offense, and the amendment took effect the day before Hollingsworth’s trial. Unlike the defendants in Martin v. State and Palmer v. State, Hollingsworth had the opportunity to raise the issue of retroactivity before the trial court and failed to do so. The purpose of the contemporaneous objection rule is “to promote a fair trial by precluding a party from sitting idly by and appearing to assent to an offer of evidence or ruling by the court only to cry foul when the outcome goes against him.” Purifoy v. State, 821 N.E.2d 409, 412 (Ind.Ct.App.2005), trans. denied. The rule serves this purpose by requiring parties to timely raise objections “so that harmful error may be avoided or corrected and a fair and proper verdict will be secured.” Id. We decline to abandon the contemporaneous objection rule here.

Judgment affirmed.

NAJAM, J., and BRADFORD, J., concur.

      . Ind.Code Ann. § 7.1-5-1-3 (West, Westlaw effective through May 31, 2012), amended by Pub. L. No. 117-2012, § 1 (effective July 1, 2012).

      . I.C. § 7.1 — 5—1—6.5 (West, Westlaw current through 2012 2nd Reg. Sess.), which was added to the Indiana Code by P.L. 93-2012, § 4 and became effective on July 1, 2012, limits the circumstances under which a law enforcement officer may take a person into custody for offenses involving alcohol. None of these limitations are applicable here.