## Facts

- Kevin L. Scionti (respondent) was admitted to the Indiana bar on October 15, 1982 and practiced privately.
- Gary and Annette Smoot divorced on April 25, 1990.
- On July 25, 1990, the dissolution court granted Annette custody of the Smoots’ minor son and granted Gary parenting time 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, identifying the Smoots’ child as the alleged victim; the custody order remained in effect.
- On September 20, 1991, Scionti entered an appearance for Gary in post-dissolution litigation to change custody. Gary’s prior lawyer, Donald Dunnuck, continued representing Gary with Scionti as co-counsel.
- On November 8, 1991, Gary picked up the child for scheduled weekend visitation. Acting on advice from Scionti and Dunnuck, Gary did not return the child at the ordered time on November 10, 1991.
- The next day, the trial judge issued an ex parte order directing Gary to return the child to Annette immediately.
- Scionti sought to set aside the ex parte order and requested emergency custody for Gary; the judge denied both requests.
- The next day, the prosecutor filed additional charges against Annette for intimidation and obstruction of justice based on allegations that she struck the child and coached him not to testify.
- Even after the court refused to lift the return order or grant emergency custody, Scionti and Dunnuck continued advising Gary to keep the child and remain out of reach with the child until the court held a hearing.
- About ten days after Gary first failed to return the child, the court held a contempt hearing. Scionti conceded he had advised Gary to violate the custody and return orders because he expected new charges against Annette and wanted the court to learn of them before the child was returned.
- The trial court found no justification for the violations, held Gary in contempt, and sentenced him to 90 days in jail.
- A few days after the contempt hearing, the prosecutor dismissed the criminal charges against Annette.
- The Indiana Supreme Court Disciplinary Commission filed a disciplinary complaint alleging Scionti violated Rule 1.2(d) (counseling criminal conduct) and Rule 8.4(d) (conduct prejudicial to the administration of justice).
- A Hearing Officer issued findings and conclusions. Scionti petitioned for review challenging the conclusions of law, not the findings. The Indiana Supreme Court reviewed the matter de novo and adopted the unchallenged factual findings.

## Issues

1. Whether Scionti violated Rule 1.2(d) by counseling Gary Smoot to keep the child in violation of a valid custody order and a direct return order, conduct Scionti knew was criminal.
2. Whether Scionti violated Rule 8.4(d) by advising and assisting deliberate disobedience of court orders in a custody dispute.
3. What sanction was appropriate given the nature of the misconduct and the surrounding circumstances.

## Decision

- The Indiana Supreme Court held Scionti committed professional misconduct.
- The Court found Scionti violated Rule 1.2(d) by counseling his client to engage in conduct Scionti knew was criminal, including refusing to return the child as required by the custody/parenting-time order and the ex parte return order.
- The Court found Scionti violated Rule 8.4(d) because advising a client to ignore custody-related court orders interferes with the courts’ ability to resolve disputes through orders that are followed unless and until changed.
- The Court imposed public discipline in the form of a public reprimand.

## Legal Principles

- A lawyer must not counsel or assist a client in conduct the lawyer knows is criminal. Ind. Prof. Cond. R. 1.2(d).
- A lawyer’s advice that a client should disobey a custody/parenting-time order and a direct return order can constitute counseling criminal conduct when the refusal to return the child violates Indiana criminal law.
- Court orders must be followed until modified or vacated by the issuing court; a lawyer may pursue emergency custody or other lawful relief, but may not use self-help defiance as a litigation tactic.
- A lawyer’s participation in intentional noncompliance with court orders is conduct prejudicial to the administration of justice under Rule 8.4(d) because it attacks the authority of the court and obstructs the orderly handling of custody disputes.
- A lawyer’s stated belief that the client’s conduct is morally justified or motivated by concern for a child does not excuse advising violations of clear court orders, though such circumstances may bear on sanction.
- In attorney discipline, the Supreme Court accepts unchallenged factual findings from the Hearing Officer but independently determines misconduct and sanction on de novo review.

## Conclusion

In Matter of Kevin L. Scionti, the Indiana Supreme Court publicly reprimanded an attorney who, while litigating a custody modification amid serious allegations against the custodial parent, advised his client to keep the child and ignore both a standing parenting-time order and a later ex parte return order; the Court held that counseling this self-help disobedience violated Rule 1.2(d) and that encouraging defiance of court orders in custody matters violated Rule 8.4(d).


Matter of Kevin L. Scionti, 630 N.E.2d 1358 (1994)