INDIANA SUPREME COURT’S ADVERSARIAL GUIDANCE TO INQUISITORIAL JUVENILE COURTS MAKING A DIFFERENCE BY GETTING INVOLVED LAWYER FEE FIGHTS
Vol. 58, No. 10
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The Journal of the Indiana State Bar Association
RES GESTÆ June 2015
23 JUVENILE COURTS
Vol. 58, No. 10
PRESIDENT’S PERSPECTIVE Jeff R. Hawkins, Sullivan, 2014-2015
RECENT DECISIONS 2/15
CRIMINAL JUSTICE NOTES 2/15
Donald R. Lundberg, Indianapolis
Curtis T. Jones and Jasmine Ivy-Dede, Indianapolis
Prof. Joel M. Schumm, Indianapolis
Michael D. Wilhelm, Fishers
F E AT U R E S 35 FEE FIGHTS
MAKING A DIFFERENCE BY GETTING INVOLVED By Bill Brooks, Indianapolis
EDITOR Susan J. Ferrer email@example.com
COMMITTEE MEMBERS NEEDED FOR 2015-16
GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino firstname.lastname@example.org
ACHIEVEMENT AWARD NOMINATIONS SOUGHT
INDIANA SUPREME COURT’S ADVERSARIAL GUIDANCE TO INQUISITORIAL JUVENILE COURTS
ADVERTISING Chauncey L. Lipscomb email@example.com WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey firstname.lastname@example.org
By Graham C. Polando, South Bend
15 NOMINATING REPORTS
21 ESSAY CONTEST
Res Gestae (USPS–462-500) is published monthly, except for January/February and July/August, by the Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. Periodicals postage paid at Indianapolis, Ind. POSTMASTER: Send address changes to Res Gestae, c/o ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204. Subscriptions to members only, $5 annually from dues. All prior issues available exclusively from William S. Hein & Co., 1285 Main St., Buffalo, NY 14209. ISBA members are encouraged to submit manuscripts to the editor for possible publication in Res Gestae. Article guidelines can be obtained by calling 800/266-2581 or visiting www.inbar.org. Res Gestae’s printer, Print Directions, Inc., is an Indiana-certified Woman Business Enterprise. © 2015 by the Indiana State Bar Association. All rights reserved. Reproduction by any method in whole or in part without permission is prohibited. Opinions expressed by bylined articles are those of the authors and not necessarily those of the ISBA or its members. Publication of advertisements is not an implied or direct endorsement of any product or service offered.
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1 2 3 N .W. 4T H S T , R O O M 2 2 E VA N SV I L L E , I N 47 7 0 8
8520 CENTER RUN RD INDIANAPOLIS, IN 46250
3 1 7. 5 6 9 . 9 6 4 4
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Indiana lawyers, united and strong
T INDIANA STATE BAR ASSOCIATION One Indiana Square, Suite 530 Indianapolis, IN 46204 800/266-2581 • 317/266-2588 fax http://www.inbar.org
OFFICERS President Jeff R. Hawkins, Sullivan President-Elect Carol M. Adinamis, Westfield Vice President Mitchell R. Heppenheimer, South Bend Secretary Michael S. Dalrymple, Indianapolis Treasurer O. Adedoyin Gomih, Merrillville Counsel to the Ted A. Waggoner, Rochester President
BOARD OF GOVERNORS 1st District 2nd District 3rd District 4th District 5th District 6th District 7th District 8th District 9th District 10th District 11th District 11th District 11th District At-Large District At-Large District Past President House of Delegates
Scott E. Yahne, Munster Robyn M. Rucker, Valparaiso Robert L. Jones Jr., Notre Dame Martin E. Seifert, Fort Wayne Candace D. Armstrong, Brook Patrick J. Olmstead, Greenwood Ann Z. Knotek, Brownsburg Hon. Leslie C. Shively, Evansville Crystal G. Rowe, New Albany Wilford A. Hahn, Huntington Tonya J. Bond, Indianapolis Terry W. Tolliver, Indianapolis Andrew Z. Soshnick, Indianapolis Rafael A. Sanchez, Indianapolis Sonia C. Das, Indianapolis James Dimos, Indianapolis Andi M. Metzel, Indianapolis, Chair House of Delegates Hon. Thomas J. Felts, Fort Wayne, Chair-Elect Young Lawyers Matthew J. Light, Indianapolis, Section Chair
STAFF Executive Director Thomas A. Pyrz • email@example.com Administrative Assistant Barbara M. Whaley • firstname.lastname@example.org Associate Executive Director Susan T. Jacobs • email@example.com Administrative Assistant Julie A. Gott • firstname.lastname@example.org Director of Communications Susan J. Ferrer • email@example.com Director of Public Relations & Social Media Carissa D. Long • firstname.lastname@example.org Graphic Designer & Photographer Vincent Morretino • email@example.com Legislative Counsel Paje E. Felts • firstname.lastname@example.org Director of Special Projects Section & Committee Liaison Maryann O. Williams • email@example.com Administrative Assistant Barbara L. Mann • firstname.lastname@example.org Local & Specialty Bar Liaison Catheryne E. Pully • email@example.com Administrative Assistant Kimberly D. Latimore • firstname.lastname@example.org Director of CLE Christina L. Fisher • email@example.com CLE Coordinator Whitney Ruffin • firstname.lastname@example.org Section & Committee Liaison Melanie Zoeller • email@example.com Director of Meetings & Events Ashley W. Higgins • firstname.lastname@example.org Membership Records & Technology Coordinator Kevin M. Mohl • email@example.com Bookkeeper & Convention Registrar Sherry Allan • firstname.lastname@example.org Receptionist Chauncey L. Lipscomb • email@example.com
he Indiana State Bar Association launched its online dues system this spring so that members could renew their membership electronically rather than having to fill out a dues invoice and mailing it with a check (or credit card info). I encourage members to pay attention to the new category pertaining to “sustaining members.” This “President’s Perspective” expresses why I believe it is important for ISBA members to support the Association in this and every other way possible. Most of us have heard someone comment about the deteriorating effects of increasingly self-interested people in modern society. Earlier this year in a “Prez Blog” post (https://isbaprez.wordpress.com), I suggested that evidence of such a decline appears in the 2015 Indiana Civic Health Index (https://isbaprez.wordpress.com/2015/03/ 24/2015-indiana-civic-health-index). The research for that index does not distinguish data by profession, but I suspect that it reflects member disengagement within most professional communities comparable to the increasing civic disengagement across all populations. This kind of disengagement threatens any population group that suffers cultural or economic encroachment. My comments at the ISBA Solo & Small Firm Conference’s opening session earlier this month included a survey of the evolutionary consequences of conflicting legal service industry regulatory schemes. The point of my message was that such regulatory conflict pinched lawyers between expanding federal antitrust enforcement and ascending client service and protection expectations. An observer of my speeches and writings this year might characterize me as an alarmist about the future of the practice of law. Certainly, recent articles by ISBA Past President Jim Dimos (https://isbaprez. wordpress.com/2013/12/20/canaries-inthe-coal-mine), Jordan Furlong (search the keyword, “evolution,” in archived articles at www.law21.ca), I.U. Maurer School of Law Prof. Bill Henderson (http://lawprofessors. typepad.com/legalwhiteboard/2014/03/ a-counterpoint-to-the-most-robust-legalmarket-the-ever-existed-in-this-country.html) and others have persuaded me to think that the legal profession must redefine itself within the global economy’s explosive evolution.
We shouldn’t forget what our law professors taught us, but very few “sacred cows,” if any, should impede the legal profession’s progress as an essential societal resource. If our traditions and customs mandate something, we should ask “why” and evaluate the response critically. If those traditions and customs tell us that we should not do something, we should ask “why not” and evaluate the response equally critically. Some things may be sacred, but they should be scarce and entirely essential to a sustainable practice of law in successive generations. A panel discussion at the National Conference of Bar Presidents (NCBP) meeting during the ABA Midyear Meeting in Houston earlier this year included a provocative panel discussion about the future of the practice of law. Toby Brown, chief practice officer for Akin Gump Strauss Hauer & Feld and one of the NCBP panelists, later wrote in a “3 Geeks and a Law Blog” post (http://www.geeklawblog.com/2015/02/ the-profession-is-doomed.html) about his impressions: “Recently I participated on a panel on the future of the profession for the National Conference of Bar Presidents and walked away thoroughly convinced the profession is doomed.” Mr. Brown went on to write: For a long time I have held out hope that the legal profession would step up and address the needs of the market: for both lawyers and clients. After this experience, I have come to the hard conclusion: That is not going to happen. As smart as lawyers are, their training and experience have made them a reactive and dogmatic group. In their minds, the way they have been doing it is the only way to keep doing it. Anything else is a threat to the profession and their practice specifically. This all saddens me. Lawyers hold a sacred duty to the rule of law. Their inability to act means the rule of law will be handed off
(continued on p. 7)
PRESIDENT’S PERSPECTIVE JEFF R. HAWKINS firstname.lastname@example.org 2014-2015 RES GESTÆ • JUNE 2015
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PRESIDENT’S PERSPECTIVE continued from page 5 to someone else – someone without that obligation. As a society we will all be worse off. If the medical profession is any indicator, we should fully expect insurance companies and/or perhaps banks to become our future legal service providers.
First they came for the Socialists, and I did not speak out – Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out – Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out – Because I was not a Jew. Then they came for me – and there was no one left to speak for me.
I reached out to Mr. Brown and assured him that many lawyers across the country see the issue clearly and take it seriously. I do not believe that our future is as dire as Mr. Brown’s blog post suggests, but we must focus our attention on future practice issues more effectively. If you have ever heard a lawyer joke, you must realize that no one outside of our profession will fight for us on the battlefield of public opinion and economic prosperity – we will stand or fall as a profession without allies, defenders or protectors. ISBA members have been promoting and defending the legal profession through public service, industry advocacy and consistent volunteerism in Association activities for more than a century. A group of such lawyers, judges, state supreme court agency officials and law school professors are gathering this month for the 2015 Conclave on Legal Education at the I.U. Robert H. McKinney
1. Perceive emerging legal profession problems and respond to them optimally before they become crises. 2. Seek opportunities to collaborate with diverse partners within and outside of the ISBA. 3. Be vigilant about defining diversity and inclusion to ensure that we exclude no ISBA members from the benefits and responsibilities of active membership
We must focus our attention on issues for the common good of all lawyers. We may differ on many things that similarly divide other American societal populations, but we must never divide irreconcilably on matters related to legal education, bar admission, bench and bar discipline, and the sustainable practice of law. Even in those subjects, we must resolve differences in favor of visionary results without impediment by superfluous, romantic ideals. We will build and preserve enduring essentiality in American and Hoosier society if we pool our resources as a strong body united under the banner of the Indiana State Bar Association.
Statute of repose to protect retiring attorneys Dear Editor: I wish to encourage all Indiana attorneys who may be contemplating retirement to read carefully our ISBA “President’s Perspective” in the April issue of Res Gestae. In it President Hawkins has included an extremely helpful interview he recently had with Jennifer Ritman, our Association’s endorsed insurance agent.
When I read his blog post, I thought of this quote from Martin Niemöller (1892-1984), a German Lutheran pastor and noted opponent and concentration camp detainee of Adolf Hitler and the Third Reich:
School of Law to evaluate our present and alternative courses in facets of legal education, bar admission, bench and bar discipline, and the sustainable practice of law. Each previous conclave has produced shared perspectives that advanced our progress in those subjects measurably, and I look forward to this conclave’s progressive conclusions. Our younger lawyers are not waiting for the old-timers to solve all of the world’s problems. In a May 18 “Prez Blog” post, I congratulated our recently graduated 2015 class of the Leadership Development Academy and encouraged all ISBA members to pursue these goals in our common interest:
The gist of the interview is the revelation that ISBA’s legislative proposal for setting a statute of repose for the benefit of retirees is simply unnecessary! Ms. Ritman, who happens to be my own trusted agent, sets forth the simplistic requirements to obtain sufficient inexpensive or free “tail coverage,” which is what I personally anticipate obtaining upon retirement. Thus, a statute of repose to protect adequately covered retiring attorneys or merged firms is simply unnecessary unless such an attorney or firm has chosen to “go bare” or underinsured. Previous clients need to be protected, but the way to do that is not by creating an immunity for errant attorneys, but rather by obtaining adequate insurance that is readily available free or at a reasonable price. Very truly yours, Daniel A. Roby, Ft. Wayne Past President, Indiana Trial Lawyers Association email@example.com
RES GESTÆ • JUNE 2015
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By Bill Brooks
Making a difference by getting involved
LEADERSHIP DEVELOPMENT ACADEMY
ccording to Lt. Col. Barry Hon, “It’s a special operations heaven, one of the nation’s biggest secrets.” Not to members of the Indiana State Bar Association’s four Leadership Development Academy classes for whom the Muscatatuck Urban Training Center near Butlerville, Ind., has become a rite of passage and a test of paintball skills. If Muscatatuck is the obvious star of the annual April show, it shares top billing with another perennial highlight – a talk by Col. Daniel Kozlowski, Staff Judge Advocate for the Indiana National Guard. This particular year, however, there was an additional person deserving of top billing – another who had worn the Army green in a time when the bullets were real amid life-and-death stakes. That man was Justice Robert D. Rucker of the Indiana Supreme Court, four decades removed from the military milieu, a man who had jumped out of helicopters in Vietnam, a man who had earned two Purple Hearts and a Bronze Star. “How do we get the right stuff on the inside to make a difference outside?” Rucker asked the academy class. He said people may ask themselves how just one person can make a difference, adding that Dr. Martin Luther King Jr. “reminded us that everybody can be great because anyone can serve.” Rucker said the people who make a difference in the world are not those with many credentials or awards, but instead “the ones who care and get involved.” He said that as attorneys – and even more so as Leadership Development Academy graduates – the classmates were uniquely qualified to make such a difference.
RES GESTÆ • JUNE 2015
“People expect you to have something to say,” Rucker said. “So speak up.”
Indiana Supreme Court, who is also a retired colonel in the Army JAG Corps.
Kozlowski’s message focused on the willingness to take chances. In a talk liberally peppered with literary references, the Indiana National Guard’s top lawyer quoted Theodore Roosevelt: “There is no effort without error and shortcoming.” Said Kozlowski, “Be the doer of deeds. You will learn more from your failures than your successes. Don’t be afraid to jump in.”
Diversity remains a challenge, the group agreed. There are few minorities at the top (Gen. Black being an exception) and not enough women in high-ranking positions. And not unlike the Indiana General Assembly, the military has also struggled with the gay issue – although the panelists agreed that the Army has been ahead of that curve. Capt. Washington said the Army is a diverse organization. “You have to know and trust your brothers,” he said. “Or the mission could fail, and people could die.”
The ebullient Kozlowski also spoke on the issue of ethics, of character. “Leadership challenges tend to be your ethical challenges, too.” He said the Leadership Development Academy gives attorneys a chance, away from their normal routine, to think about how they want to define their own character. “Ethical challenges,” he said, “are not between good and evil.” (Evil, he said, takes a lot of work – too much.) Instead, he said, “The choice is between good and easy.” He said that although any organization’s lawyers don’t usually bear the official title of “ethics officer,” that is exactly what the lawyer is. “Nobody will take your advice when you lose your integrity,” he said. “Lose your integrity, you lose everything.” The Leadership Development Academy session also featured a panel discussion on the subject of diversity in the military. That panel included Brigadier Gen. Wayne L. Black, Assistant Adjutant General – Army, Indiana National Guard; Capt. Kenneth Washington, Staff Judge Advocate for Camp Atterbury and the Muscatatuck Center for Complex Operations; and J.T. Parker, Chief of Staff, Indiana Prosecuting Attorneys Council. The panel was moderated by LDA Committee member and session staple Justice Steven David,
The Muscatatuck session addressed another type of diversity – generational. Charlotte Westerhaus-Renfrow, senior lecturer of management at Indiana University’s Kelley School of Business, spoke about how people from four distinctly unique generations can co-exist and succeed in the same law firm. She outlined how each generation (the “Silents,” born before WWII, Baby Boomers, Gen X and Millennials) has been shaped by world events and societal changes, and how that has affected how those diverse people view the workplace, how they work, how they want to be recognized, and how they treat authority. Westerhaus-Renfrow, who holds a law degree and also leads a consulting firm, warned her audience of the troubles that await “if you only focus on behaviors, but don’t look at core values and cultural roots.” She added, “Culture can be a barrier to change, to diversity.” The fourth session of this year’s Leadership Development Academy also included a panel discussion on veterans treatment
Photo by Vincent Morretino
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The ISBA Leadership Development Academy at the Muscatatuck Urban Training Center courts, in particular the Veterans Court of Southern Indiana, which is supervised by Judge Maria D. Granger of Floyd Superior Court 3. She was joined by the multi-disciplinary group of people who have made the court a success. The panel included a graduate of the Veterans Court program, a man whose post-war drug issues had cost him his business and, for a while, his family. Those problems had also landed him in criminal court, where he was accepted into the diversion program. His heartfelt, personal story illustrated the promise offered by such courts. Panelists agreed that the program is extremely demanding, that not all veterans who land in court qualify – and that it is only a success because of the teamwork between the U.S. Department of Veterans Affairs, the Indiana National Guard, defense and
prosecuting attorneys, case managers and mentors. Veterans who land in court, Judge Granger said, “look like civilians, but they bear the scars of war underneath.” She said the Veterans Court program “has the unique ability to look beyond – to ask what services does this person need to change his or her life.” Gen. Black had a second turn on the dais. He spoke of both the rewards and challenges faced by soldiers and airmen – especially in reintegrating with their families after extended deployments in the Middle East. He also addressed leadership in the military, noting that leadership style changes as you progress up the ranks. As a lowerranking officer, he said, you’re closer to the issue. In higher ranks, he said, it becomes easier to separate yourself from the problem – and adjudicate it better.
In his solo turn at the podium, Black also gave an overview of the Indiana National Guard’s role in Indiana and the world. He noted that the state organization has 14,500 soldiers and airmen, of which 2,209 are full-time personnel. The Guard also has $2 billion in infrastructure and $1 billion worth of military equipment. It operates in collaborations stretching across the globe, including a partnership for the past 20 years with Slovakia, a joint operation with Israel, and a budding partnership with Kenya. The LDA class spent a little more than 24 hours at Muscatatuck, the military wonderland nestled in the gently rolling hills of southern Indiana, but the visit was packed with adventure and information. (continued on page 10)
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MAKING A DIFFERENCE
ISBA’s Annual Day of Service
WHERE: Your local communities! District liaisons will work with local bars to coordinate efforts in every county for the Annual Day of Service.
Lt. Col. Hon kicked off the session with an overview of Muscatatuck, the former longtime site of a state hospital for people with severe developmental disabilities. It now serves as a complex training site for military personnel, first responders, police and firefighters. The site can replicate both a “City in a Failed State” and a “City in Distress,” Hon said. One day it’s Afghanistan, the next day perhaps New Orleans. The site boasts everything from a five-story hospital to an underground subway station, a derailed train, a flooded community, a collapsed parking garage, an Afghan market, searchable tunnels, and even the latest in high-tech apparatus for cyberwarfare experiences. While the base commander spoke, the classmates could hear explosions and the sound of Blackhawk helicopters, evidence the Canadian Special Forces were involved in exercises that particular day. “We tie all those dimensions together,” Lt. Col. Hon said, “to do what our nation needs.”
WHY: The focus of the Annual Day of Service is hands-on
Bill Brooks is a media consultant and freelance writer in Indianapolis, Ind.
hank you for making the 2014 Annual Day of Service a huge success! Nearly 150 judges, attorneys, law students, staff and family members volunteered, which meant we doubled, if not tripled, participation from 2013. It’s now time to Save the Date for the 2015 Annual Day of Service, so mark your calendars!
WHEN: Saturday, Sept. 19 WHO: Attorneys and judges from local bar associations throughout the state of Indiana, along with their families and staff
WHAT: Attorneys and judges from across the state will come together in their respective counties to engage in hands-on community service. From cleaning up local neighborhoods to volunteering at local shelters, attorneys and judges will have the opportunity to work together to make their communities better. Activities may include volunteering at a local soup kitchen or homeless shelter; providing painting or cleanup services for local neighborhoods in need; or assisting the Red Cross, Salvation Army or Habitat for Humanity.
community service, with the goal to inspire attorneys to get their hands dirty in helping build and clean up their local parks, adopting streets, building homes; unifying members of state, local and specialty bar associations; and highlighting the “good works” of the legal community as a whole. The goal is to make this event bigger and bigger every year. The ISBA Service Committee helped local bar associations coordinate 11 projects involving 11 counties, including Allen, Lake, LaPorte, Marion, Morgan, Newton/Jasper/Benton, St. Joseph, Steuben and Vanderburgh counties, which almost doubled involvement from 2013. Add your county to the list and get involved today! For more information or to add your county & event to the Annual Day of Service project list, you may contact Jaime Oss, Annual Day of Service director, at firstname.lastname@example.org or Catheryne Pully at the State Bar, email@example.com.
continued from page 9
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Committee members needed for next operational year
arol M. Adinamis, Westfield, ISBA presidentelect, will soon begin the process of appointing members to our various committees for the 2015-16 operational year. The State Bar wants and needs you to participate in the important work of your professional association! Much of the work of the State Bar is accomplished by its standing and special committees. Consequently, it is vitally important to select members who are dedicated and willing to devote time and effort to the challenges facing the profession and the Association. Standing committees are established by ISBA bylaws and usually concerned with matters of ongoing interest. The bylaws provide that standing committees have a minimum number of members in staggered, three-year terms. If you are already on a standing committee, you need not reapply unless your three-year term expires in 2015. If it does, you should reapply in order to remain on the committee. Special committees are established by the ISBA Board of Governors to accomplish special assignments or study emerging trends. They have no less significance than standing committees, but the terms of the members are for only one year. You must reapply each year, or you may be removed from the committee. Although it is impossible to appoint everyone to his or her first choice, every effort will be made to accommodate any member who expresses an interest in service. All members interested in serving on a committee should fill out the form on the adjacent page, indicating first and second preference(s) only, and return the information to ISBA Executive Director Tom Pyrz by Aug. 28.
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Standing Committees The Affiliate Membership Committee encourages Association membership of paralegals, law librarians, legal administrators and court administrators. The American Citizenship Committee espouses the advantages of American citizenship and assists the federal courts in making naturalization ceremonies more meaningful. The Articles & Bylaws Committee exercises parliamentary jurisdiction for the Association; reviews the articles and bylaws; prepares additions, deletions and amendments whenever appropriate; and recommends the same to the Board of Governors. The Attorney Fee Dispute Resolution Committee is exploring the need for and feasibility of a statewide attorney fee dispute resolution process that would complement but not compete with existing local programs. The Aviation Law Committee makes a continuing study of and recommendations pertaining to air crash litigation, aviation laws and regulations, safety and insurance requirements for private and commercial aircraft operating within the state, and other matters pertinent to aviation and space laws. The Casemaker Improvement Committee will determine how to increase usage by members, including initiatives such as better informing members of the benefit, offering training to members and improving the offerings and operations of Casemaker. The Committee on Civil Rights of Children makes a continuing study of laws pertinent to the civil rights of children and reports its findings and recommendations to the Board of Governors. The ISBA in collaboration with the Indiana Commission on
Disproportionality in Youth Services sponsored the “Summit on Racial Disparities in the Juvenile Justice System: A Statewide Dialogue” in the summer of 2009. The committee recommended action in this regard, including legislation, HEA 1193, which became law effective July 1, 2010. In 2011, the committee produced a follow-up report of the Indiana Juvenile Mental Health Screening, Assessment & Treatment Project and also proposed a rule – the Right to Counsel in Juvenile Court Proceedings – for adoption and recommendation to the Indiana Supreme Court. The rule passed the ISBA House of Delegates unanimously, and the Supreme Court amended Indiana Rules of Criminal Procedure, Rule 25, which was effective Jan. 1 of this year. The Clients’ Financial Assistance Fund Committee manages and administers the Clients’ Financial Assistance Fund for the purpose of maintaining the integrity and protecting the name of the legal profession in Indiana. The Diversity Committee promotes full and equal participation in the ISBA, our profession and the justice system by all persons. The Federal Judiciary Committee monitors all activities that affect the federal court system and federal court judges. The Honors Committee is empowered, upon consent of a majority of the Board of Governors, to confer appropriate recognition upon any person who has rendered outstanding service to the legal profession. This committee also reports at each annual meeting of the Association the names of all members who have died since the date of the last report. The Committee on Improvements in the Judicial System promotes the election or appointment of properly qualified
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(Please print or type) candidates for judicial office. The committee also concerns itself with judicial salaries, pensions and tenure, and studies other facets of the judicial system in Indiana. The Latino Affairs Committee seeks to provide a unified voice addressing the legal issues uniquely affecting the Latino community in our state. The committee coordinates resources to ensure equal access to justice for Indiana’s Latino community, promotes the legal concerns of Latinos within the broader legal community, and raises awareness of issues that affect the Latino community. The Law Practice Management Committee studies, evaluates and recommends improved methods of managing the practice of law to maximize efficiency, productivity, effectiveness, pleasure and financial reward from such practice. The committee also develops and recommends projects and programs that help members of the Association furnish high-quality legal services to their clients. The Lawyer Advertising Rules Review Committee shall study Indiana’s Rules of Professional Conduct concerning lawyer advertising and recommend any changes that may be needed. The Legal Ethics Committee shall foster and promulgate high ethical standards in accordance with the rules of the Indiana Supreme Court. The committee issues written opinions upon request. Opinions are formal or informal. Formal opinions shall be on questions of first impression in Indiana and other matters warranting general circulation in the judgment of the committee. Informal opinions shall be on questions previously resolved by formal opinions. (continued on page 14)
NAME ADDRESS CITY/STATE/ZIP Please indicate your order of preference by a #1 and/or a #2.
____ Legal Ethics
____ Affiliate Membership
____ Long Range Planning
____ American Citizenship
____ Military & Veterans’ Affairs
____ Articles & Bylaws
____ Pro Bono
____ Attorney Fee Dispute
____ Public Relations
Resolution ____ Service ____ Aviation Law ____ Sexual Orientation ____ Casemaker Improvement
& Gender Identity
____ Civil Rights of Children
____ State Legislation
____ Clients’ Financial
Assistance Fund ____ Unauthorized ____ Diversity
Practice of Law
____ Federal Judiciary
____ Women in the Law
____ Improvements in the
____ Written Publications
Judicial System ____ Latino Affairs
Special Committees ____ CLE
____ Law Practice Management ____ Courthouse Art ____ Lawyer Advertising Rules Review
Please return to Tom Pyrz, Executive Director, ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204; 317/266-2588, fax; firstname.lastname@example.org, email.
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COMMITTEES continued from page 13 The Long Range Planning Committee considers all facets of the Association’s operation, including facilities, personnel, organizational structure and mission, and recommends long-range goals and procedures to be followed in their attainment. The Military & Veterans’ Affairs Committee shall explore and identify legal issues and needs of service members (active duty, Guard or Reserve) living in Indiana or stationed and deployed outside of Indiana, and assist service members and veterans with such needs; continue the Lawyers for Soldiers Program, which provides pro bono legal assistance to service members, veterans and their families; and develop a network of ISBA members (judges, JAGs and lawyers) interested in military and veterans’ issues and assistance.
The Pro Bono Committee is responsible for fulfilling the Indiana State Bar Association’s commitment to pro bono efforts as an integral part of its mission and long-range planning. As such, the Pro Bono Committee develops and implements programs to educate members about the need for and opportunities to engage in pro bono civil legal services for the poor, and encourages members to undertake pro bono representation. The Public Relations Committee is responsible for the formulation of Association PR policies. This committee recommends ways to improve the relationship between the public and the legal profession by way of presenting the work of the ISBA and lawyers generally through the use of the press, radio, television and other media.
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The Service Committee, spearheaded by members of the inaugural class of the ISBA Leadership Development Academy, has established an annual Day of Service (this year on Sept. 19); is promoting service by state and local bar associations; and presents an award at the ISBA Annual Meeting to recognize Indiana attorneys committed to serving beyond their clients. The Sexual Orientation & Gender Identity Committee shall focus on legal issues related to sexual orientation and gender identity as well as promote full and equal participation in the legal profession by persons of differing sexual orientations and gender identities. The State Legislation Committee monitors the activities of the legislature in those areas of interest pertinent to the profession of law; keeps the Board of Governors informed upon such matters; and supports by testimony and other means the policies of the Association before the General Assembly. The Technology Committee makes recommendations to the Board of Governors as to actions to ensure the proper and effective use of the Internet to further the purpose of service to lawyers and the public. The committee is also addressing other issues of electronic commerce as they relate to the legal profession and the ability of lawyers to serve their clients and the public. The Unauthorized Practice of Law Committee keeps itself informed with respect to all aspects of issues pertaining to the unauthorized practice of law (UPL) in the state of Indiana by nonlawyers. Where appropriate or when requested, the committee shall provide comments or written opinions, formal and informal, on the subject of UPL. The Wellness Committee was established to promote health and
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personal well-being among judges, lawyers, their staffs and law students by encouraging positive lifestyle changes through increased physical activity, stress reduction, healthier eating, tobacco cessation and the like, and to support them as advocates to make their communities healthier places to live and work. The Women in the Law Committee promotes the advancement of women in the legal profession, law school and society at large by providing educational programs to build successful practices, networking opportunities, a forum for discussion and understanding of legal issues affecting women, and opportunities for community service. The Written Publications Committee is responsible for reviewing and approving articles on professional subjects in Res Gestae, and solicits professional articles of current interest to the membership.
Special Committees The Continuing Legal Education Committee facilitates the production and delivery of high-quality, affordable CLE programs for the benefit of the legal profession, in coordination with the sections, committees and staff of the ISBA, and other entities serving the needs of Indiana lawyers. The Courthouse Art Committee is encouraging the donation of original artwork of Indiana’s 92 county courthouses, historic or current, to hang in the offices of the ISBA. The IndianaDocs Committee is responsible for creating, reviewing, approving and keeping current all practice-related forms for inclusion in the IndianaDocs library. This document assembly software allows members to save time, effort and money in the production of repetitive documents and forms.
Report of the Nominating Committee of the Indiana State Bar Association he Nominating Committee of the Indiana State Bar Association met in Indianapolis on May 8 and determined to submit the following candidates for election to the respective Association offices at the Annual Meeting of the Association Assembly to be held in French Lick, Ind., on Oct. 9.
For Vice President ............................................ Andrielle M. Metzel, Indianapolis For the Board of Governors (term Oct. 9, 2015 through October 2017) District 1 ............................................................... Michael J. Jasaitis, Crown Point District 4 .................................................................... David E. Bailey, Fort Wayne District 5 ............................................................................ Daniel L. Askren, Attica District 10 ............................................................ Hon. Angela G. Sims, Anderson District 11 ............................................................ Deborah J. Caruso, Indianapolis District 11 ................................................ Hon. Tanya Walton Pratt, Indianapolis At Large .................................................................. Shontrai D. Irving, Hammond Respectfully submitted by Jim Dimos, Indianapolis, chair; Michael E. Tolbert, Gary; Jaime M. Oss, Michigan City; Cristal C. Brisco, South Bend; Hon. Thomas J. Felts, Fort Wayne; Marianne M. Owen, Lafayette; Seamus P. Boyce, Noblesville; Jeffry A. Lind, Terre Haute; James P. Casey, Evansville; J. Todd Spurgeon, New Albany; and Judi L. Calhoun, Muncie.
Report of the Nominating Committee of the House of Delegates of the Indiana State Bar Association ursuant to the provisions of Section B(2) of Bylaw V of the Indiana State Bar Association, notice is hereby given to all members of the Association and to all members of the House of Delegates that the Nominating Committee of the House of Delegates of the Indiana State Bar Association nominates the following candidate: Michael E. Tolbert, Gary
Such candidate, if properly elected as chair-elect at the 2015 Annual House of Delegates meeting, will serve one year as a member of the Board of Governors in the capacity of chair-elect of the House, and will then assume the office of chair at the close of the 2016 Annual Meeting, serving until the close of the 2017 Annual Meeting. Respectfully submitted by Mitchell R. Heppenheimer, South Bend, chair; Jon R. Rogers, Granger; Jacquelyn Pillar King, Munster; Jaime M. Oss, Michigan City; Shontrai D. Irving, Hammond; and Gail G. Peshel, Valparaiso.
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Achievement award nominations sought Nominations due Aug. 10
he following awards will be presented at the State Bar’s Annual Meeting in French Lick in October. For more information and/or nomination forms, contact the ISBA at 317/639-5465 or 800/266-2581. Nomination forms are also available as downloadable PDF files at the ISBA website, www.inbar.org.
CIVILITY AWARDS Sponsored by the Litigation Section The ISBA Litigation Section’s Civility Awards recognize an attorney and judge for outstanding civility and professionalism in their dealings with fellow judges, attorneys, parties, witnesses and the public. Send your nominations to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Melanie at email@example.com.
GALE M. PHELPS AWARD Sponsored by the Family & Juvenile Law Section The Gale M. Phelps Award is named in memory of Gale M. Phelps, a former chair of the ISBA Family & Juvenile Law Section and one of the most active members of the section, who passed away
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in 2003. Factors considered in the selection of the recipient reflect Gale’s contributions to the family law legal community and include: • Exceptional service to the profession: unsolicited mentoring to new attorneys, reaching out to other lawyers, and working with attorneys on an individualized basis; • Highest level of competence/ improving the profession: reviewing legislation and shaping family law policies, contributing to educational seminars, serving in leadership positions for legal and nonlegal organizations; • Raising the level of professionalism and civility in domestic relations matters: going beyond the client’s basic needs, maintaining respect for the court system and its participants; and • High moral character and ethical standards Send your nominations to: Maryann Williams Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Maryann at firstname.lastname@example.org.
RABB EMISON AWARDS Sponsored by the Diversity Committee The Rabb Emison Awards, named for its first recipient in the individual category, recognize an individual and an organization that have demonstrated a commitment to promote diversity and/or equality in the legal profession and in the membership of the Indiana State Bar Association. Send your nominations to: Whitney Ruffin Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Whitney at email@example.com.
OUTSTANDING JUDGE AWARD Sponsored by the Young Lawyers Section The ISBA Young Lawyers Section is accepting nominations for this year’s Outstanding Judge Award. The criteria for the award are as follows: 1. The nominee provides substantial education or mentoring to young lawyers. 2. The nominee fosters civility among those attorneys who practice before the bench. 3. The nominee epitomizes the core values of our profession – honesty, competence and respect for the judicial system. 4. The nominee has a recognized reputation for providing service to the local community. Send your nomination to: Christina Fisher Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 The names of those submitting nominations for consideration shall be kept confidential to avoid any appearance of impropriety. Only current judges are eligible for this award. For more information, contact Christina at firstname.lastname@example.org.
WOMEN IN THE LAW RECOGNITION AWARD Sponsored by the Women in the Law Committee State Bar members are invited to nominate an attorney for the Women in the Law Recognition Award, which is presented to an individual who has assisted in the advancement of women in the legal profession, served as a role model or mentor or has influenced women to pursue a career in law or for contributions to the legal profession as a whole or to a particular
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area of practice. The nominee must be an attorney licensed in the state. Those making nominations are encouraged to submit letters of support. Send your nomination to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204
who have rendered outstanding service to their communities in any of the following areas: • promoting a better understanding of our Constitution and the Bill of Rights; • encouraging greater respect for the law and the courts;
recognize their duties as well as their rights; • contributing to the effective functioning of our institutions of government; • fostering a better understanding and appreciation of the rule of law.
• stimulating a deeper sense of responsibility so that citizens
(continued on page 18)
For more information, contact Melanie at email@example.com.
TRAILBLAZER/ABRIENDO CAMINOS AWARD Sponsored by the Latino Affairs Committee The Latino Affairs Committee’s Trailblazer/Abriendo Caminos Award recognizes the outstanding achievements, commitment and leadership of a lawyer who has paved the way for the advancement of other Latino attorneys and/or the Latino community. This award recipient will personify excellence in the profession, especially by his/her steadfast commitment, vision, courage and tenacity, which have resulted in substantial and lasting contributions to the Latino legal profession as well as the broader Latino community. The nominee must be a current ISBA member.
Send your nomination to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Melanie at firstname.lastname@example.org.
LIBERTY BELL AWARD Sponsored by the Young Lawyers Section The Liberty Bell Award celebrates community service that strengthens our system of freedom under law. Traditionally this award has been presented to nonlawyers
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AWARDS continued from page 17 This is your opportunity to focus on a local community leader who may not receive public recognition of his or her accomplishments. To nominate an individual, please submit the nomination form and explain why you feel this person deserves the Liberty Bell Award. Send your nomination to: Christina Fisher Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Christina at email@example.com.
HON. VIOLA TALIAFERRO AWARD Sponsored by the Committee on Civil Rights of Children The Committee on Civil Rights of Children annually honors an individual who best exemplifies Judge Taliaferro’s courageous leadership in addressing the unmet legal needs of children and in raising the public’s awareness of these needs. Nominations for this award may be for an individual who is living or deceased. Send your nomination to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Melanie at firstname.lastname@example.org. JOHN ROBERT PANICO Mediator • Arbitrator • Fact Finder Statewide Dispute Resolution Services Employment • Labor • Civil Rights
Helping Parties Reach Fair Resolutions Through Skill, Insight & Experience Registered Indiana Mediator Over 30 Years of Experience www.panicoadr.com Panico Law LLC Indianapolis, Ind. 317-759-7464 email@example.com 18
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COMMUNITY SERVICE AWARD Sponsored by the Service Committee The Community Service Award was established by the ISBA Service Committee, a project of the first ISBA Leadership Development Academy class. The Service Committee was formed by the class with an interest in advancing the nonlegal service work of lawyers in their communities and state. Factors considered in the selection of the recipient reflect the core values the Service Committee wishes to promote and include: 1. exceptional nonlegal service work in their respective community – this does not include pro bono work, which is recognized separately; 2. an embodiment of the core values of our legal profession; 3. promoting community involvement; and 4. helping in underserved areas – this includes providing service in lower-income areas, youth initiatives, the elderly and infirm, schools, and similar areas. Send your nomination to: Catheryne Pully Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Catheryne at firstname.lastname@example.org.
AFFILIATE MEMBER AWARD Sponsored by the Affiliate Membership Committee This award recognizes an affiliate member of the Indiana State Bar Association who has contributed to the legal profession. The selection committee will give primary consideration to nominees whose efforts offer evidence of distinctive service to the legal profession in the areas of paralegalism,
legal administration, law librarianship or court administration. The selection committee may also consider: • a nominee’s contributions in the areas of leadership, professional development and promotion of paralegals, legal administrators, law librarians or court administrators; • commitment to the Indiana State Bar Association; and • service not only to the legal community, but compassion and dedication to others by involvement and volunteer service to the community. Send your nomination to: Susan Jacobs Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Susan at email@example.com.
DAVID HAMACHER PUBLIC SERVICE AWARD Sponsored by the Appellate Practice Section The ISBA Appellate Practice Section is soliciting nominations for the David Hamacher Public Service Award. Any lawyer or nonlawyer may be nominated. The criteria for this award are as follows: high moral character and ethical standards; service to the community; peacemaking qualities; person not necessarily a lawyer; award not gender specific. Send a written statement regarding why the nominee should be selected to: Melanie Zoeller Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Melanie at firstname.lastname@example.org.
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OUTSTANDING YOUNG LAWYER AWARD Sponsored by the Young Lawyers Section Nominated candidates will exemplify the virtues embodied in the oath required of all Indiana attorneys when admitted to the bar. To nominate a young lawyer, complete the nomination form and include a letter explaining why you believe your nominee should be considered for the award. An attorney qualifies as a young lawyer if he or she is under 36 years of age or has less than six years of legal experience. If you prefer that your nomination remain anonymous, please advise, and we will honor your request. Send your nomination to: Christina Fisher Indiana State Bar Association
One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Christina at email@example.com.
HENRY HURST JUDICIAL ASSISTANCE AWARD Sponsored by the Federal Judiciary Committee The Federal Judiciary Committee is seeking nominations from federal judges, the public, attorneys practicing in Indiana’s federal courts, and a candidate’s peers for the Henry Hurst Judicial Assistance Award, which is named in memory of Henry Hurst, the first federal clerk of the district court of Indiana, who was sworn in on May 5, 1817, and served the entire state until 1835. Henry Hurst exemplified the importance of having highly skilled personnel assisting the federal judiciary in order
to promote justice and efficiency in the courts. This year nominees for the Hurst Award shall be from the Southern District of Indiana and serve as a member of the district court clerk’s office or the district bankruptcy court clerk’s office, as a staff member to a district court judge or a district bankruptcy court judge, or as a member of the administrative personnel. Send your nomination to: Paje Felts Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Paje at firstname.lastname@example.org. Please identify the nominee’s job title and provide a description of the candidate’s qualifications for the award.
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THE ULTIMATE MOBILE EXPERIENCE. 10:15 AM
To download, search for "Indiana State Bar" at the iTunes App Store or Google Play. Once downloaded, you can also access the Solo & Small Firm Conference and Annual Meeting event apps by selecting the “Conferences” icon.
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Register for upcoming CLE & social events Read Res Gestae & Addendum Connect with ISBA staffers Access the Board of Governors directory Contact Section & Committee chairs Search our membership directory Use Casemaker, our free online research tool Join the Association!
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Annual ethics essay contest Deadline: Aug. 21
Entrant basics • Essay length must not exceed 1,800 words (including endnotes). • Select, in drafting your responses, from one of five provided prompts. • All entries must be electronically submitted on or before 11:59 a.m. EDT Friday, Aug. 21. Submissions will be judged by three Legal Ethics Committee members. The top five participants will present their essays to the committee and receive recognition at this year’s Annual Meeting Awards Luncheon at the historic French Lick Resort in October. Questions? Contact Catheryne Pully at the State Bar, email@example.com.
Goals: To (1) further the discourse on legal ethics in the profession generally and amongst Indiana law students and recent graduates in particular, and (2) allow the Association’s Legal Ethics Committee to continue assessing prevailing attitudes of those at the outset of their careers toward issues in professional responsibility.
RULES Eligibility: The contest is open to: (1) all Indiana law school current enrollees and recent graduates (i.e., received J.D. or LL.M. degree within the last year); (2) attorneys within their first three years of practice; and (3) paralegals with five years or less work experience. Length: Overall essay must not exceed 1,800 words (including endnotes). Topic: Participants shall base their entries on one of the five prompts described on page 24 of this issue of Res Gestae. Deadline: All essays will be electronically submitted, in Microsoft Word format, to ISBA Local & Specialty Bar Liaison Catheryne Pully (firstname.lastname@example.org) no later than 11:59 a.m. EDT Friday, Aug. 21. Finalists: Members from the Legal Ethics Committee will select, from all entries, five finalists, who will then receive an invitation to attend the committee’s Sept. 12 meeting, either in-person or telephonically, to present their essays and answer questions.
n promotion of the ongoing discussion about ethics in our profession, the State Bar’s Legal Ethics Committee, along with the Young Lawyers Section and Written Publications Committee, is again sponsoring the Association’s yearly ethics essay contest. The contest, open to Indiana law students, new lawyers and paralegals, boasts cash prizes for the top three entries as well as the chance to have one’s essay featured in the Association’s flagship publication, Res Gestae.
ISBA Legal Ethics Essay Contest
Winners: Committee members charged with judging submissions will award first-, second- and third-place titles to the top three responses. Winners will be contacted personally; all other entrants will be notified of contest results by email. Prizes: The first-place essayist, in addition to receiving a $250 cash prize, will have the opportunity to have his or her piece submitted for possible publication in Res Gestae, the Association’s flagship publication, with statewide readership among legal practitioners numbering in the thousands. The top entrant will also have the chance to compete for a Harrison Legal Writing Award, handed down annually by the Association’s Written Publications Committee, as well as be formally recognized at the Association’s Annual Meeting Awards Luncheon in October. Second- and third-place essayists will receive $150 and $100 for their efforts, respectively, and, along with the top response, have their entries reproduced in Addendum, the Association’s biweekly member e-newsletter. The top three submissions – as well as the two next-best essays – will earn mention in the event program for this year’s Annual Meeting Awards Luncheon.
GUIDELINES 1. Essays are to be typewritten, using either Times New Roman or Book Antiqua font, 12-point type. (continued on page 22)
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ETHICS ESSAY continued from page 21 2. Essay text is to be doublespaced, with one-inch margins on either side. 3. Essay pages are to be lowerright numbered, complete with author’s name. 4. Essay notes and citations are to be entered using the Bluebook legal style. 5. Essays are to reference at least one of the following legal authorities: the Indiana Rules of Professional Conduct; the Indiana Rules for Admission to the Bar & the Discipline of Attorneys; Indiana Court of Appeals (for-publication or reclassified memorandum) decisions; Indiana Supreme Court opinions. Essays are free, of course, to additionally reference: American Bar Association Model Rules of Professional Conduct; rules and case law governing ethical conduct and professional responsibility in other United States jurisdictions; exceedingly persuasive secondary sources.
PROMPTS 1. The Indiana Rules of Professional Conduct require a lawyer to “provide competent representation to a client.” Comment  to that Rule clarifies that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar … [a] lawyer can provide adequate representation in a wholly novel field through necessary study.” In an era of increasing lawyer specialization, is the Comment still true? If not, and it bears revising, what should the revised comment say? 2. As evidenced by Wisner v. Laney, 984 N.E.2d 1201 (Ind. 2012), Indiana courts have made clear that attorneys are obligated to behave in a “civil” manner when engaged in the practice of law. Federal courts also share this view (Flomo v. Bridgestone, 2010 WL 22
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935553). However, the Indiana Rules of Professional Conduct neither explicitly impose such a burden, nor do they directly address its scope. Discuss (a) the source of this duty; (b) how it is defined; (c) whether it should be considered an “ethical” duty; and (d) how lawyers are to be disciplined for transgressions of said duty. 3. Technology has touched every part of our lives, complete with concomitant benefits and pitfalls. A paralegal in your workplace, having logged nearly four decades of service in our field, waxes nostalgic on the trials of going from a simple IBM Selectric typewriter in the early ’80s to the wide range of highly advanced programs now in daily use. Then drawing your attention to the American Bar Association’s 2012 formally approved change to the Model Rules of Professional Conduct (amending Comment  to Model Rule 1.1), she notes that multiple states have since incorporated some duty of “technological competence” into their rules, with some even going as far as to issuing advisory (and, in some cases, disciplinary) opinions on the subject. How do you react to her argument that Indiana also should change its rules accordingly, making it clear that lawyers must not only maintain a basic level of professional competency, but also keep pace with rapidly changing technology? 4. Full-time law students, by current American Bar Association accreditation standards for all law schools, are enjoined from working more than 20 hours per week while so enrolled. In demonstrating compliance with these requirements, schools are actually beginning to demand that students certify the number of hours they work while enrolled in classes – generally under the auspices of each institution’s
“honor code.” In light of today’s competitive job market, discuss the implications, per our Rules of Professional Conduct, for both the student who may effectively violate this guideline and the legal employer seeking to entice such students to work more weekly hours than presently permissible. 5. Fanciful Industries has a patent on a design for a “better” mousetrap and has been directly marketing that “better” mousetrap to various retailers. Rodent Enterprises, a competitor, markets its own mousetrap to other retailers. Fanciful believes that the Rodent trap infringes on its patent, and hires the law firm of France & England to bring a patent infringement action against Rodent. In that action, it seeks damages for Rodent’s direct infringement. It also seeks damages against Rodent for indirect infringement – for having induced Rodent’s customers to infringe on Fanciful’s patent. Lastly, it seeks injunctive relief enjoining Rodent (and others in active concert with Rodent) from infringing on Fanciful’s patent. Rodent denies infringement and otherwise challenges the validity of Fanciful’s patent. As the case progresses, Fanciful’s discovery requests to Rodent reveal, inter alia, Rodent’s customer list, containing names and addresses of numerous retailers. France & England thus determine – for the first time – that one of its labor and employment clients is a wholesale purchaser-retail seller of Rodent’s trap. Should France & England be disqualified from representing Fanciful on these facts? If not, are there any limitations on France & England’s continued representation of Fanciful?
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By Graham C. Polando
The Indiana Supreme Court’s adversarial guidance to inquisitorial juvenile courts
hortly after C.C. gave birth to a cocaine-positive child, the Department of Child Services removed the baby from her care.1 Before K.W.’s three-month birthday, a court had both provided and ordered her Mother to complete in-home drug treatment services so it could return K.W. to her care. Some five different therapists attempted to provide Mother with such treatment, but all discontinued it because of her “poor attendance” – though the treatment occurred in her home. Mother’s absence was partially explained by at least two different stints in jail and three positive drug tests.2
Eventually, DCS filed a Petition to Terminate Mother’s Parental Rights to K.W. Mother initially requested a continuance of those proceedings “so she could participate in services after being released from incarceration,” but did not attend a subsequent hearing “because she was on house arrest.”3 Despite C.C.’s initial indication that she was “gonna sign rights away,” she later decided to “fight” the Petition.4 But when the hearing on that Petition began, she was again absent and incarcerated. Her counsel moved to again continue the proceedings, claiming that C.C. expected to be released to home detention or work release in approximately nine days. The trial court denied the continuance and, after hearing evidence, terminated Mother’s rights to K.W. Mother appealed, claiming, among other things, that the trial court erred in denying her motion to continue. She further claimed that she wanted to appear at the termination proceeding to explain that she deliberately did not comply with the orders because she intended to consent to K.W.’s adoption.
The Court of Appeals thought little of C.C’s contentions, noting that her counsel fully presented her “defense,” and despite her counsel’s vigorous cross-examination of the Department’s witnesses and presentation of K.W.’s grandmother’s testimony, the evidence that C.C.’s parental rights should be terminated was “overwhelming.” But the Indiana Supreme Court reversed the termination, holding that the trial court should have granted her request for a continuance, therefore restoring Mother’s parental rights. Not long ago, as might have been expected by the Court of Appeals’ characterization of the Department’s case as “overwhelming,” this result would have been surprising. But by the time the opinion was issued in July of 2014, the reversal was just the latest in a string of Indiana Supreme Court reversals of juvenile court actions adverse to parents. The Court had historically paid little attention to such child services cases – those involving a juvenile court’s imposing its own and the Department’s oversight and, if necessary, permanently severing the parent-child relationship. Likewise, the Indiana Court of Appeals regularly reviews such terminations, but rarely reverses them.5 But following a seven-year period in which it decided an average of just over one such case annually, the Supreme Court decided six in the first several months of 2014 alone, all but one of which reversed CHINS adjudications or terminations of parental rights. Despite that trend, it is clear that the shift is not result-oriented. Rather, the Court’s sophisticated turn has provided a welcome measure of adversarialism to the still largely inquisitorial juvenile court process.
The adversarial-inquisitorial continuum Courts and commentators define “adversarial” and “inquisitorial” systems in myriad ways; there is largely no “agreement about what makes a procedural system inquisitorial.”6 Indeed, sophisticated observers do not speak of a particular system as “adversarial” or “inquisitorial” per se, but instead place different systems on an adversarial-inquisitorial continuum based on the presence or absence of a number of different factors.7 First among such factors are the respective roles of the judge, the parties and their counsel. Generally, the more “involved” the judicial officer is in fact-and-law development, the more inquisitorial the system. The literature is replete with definitional examples: more adversarial judges are “neutral” and “detached,” “acting solely as passive umpire, and relying on the parties to investigate the facts and the law.”8 Such impartiality is laudable, but more inquisitorial proponents deride such “objectivity” even in the face of a manifest injustice, claiming that it is the “chief function of a court of law to find out the truth and not merely to decide which party has adduced better evidence.”9 Likewise, a more inquisitorial judge “conduct[s] the factual and legal investigation himself,”10 but, to adversarial eyes, becomes a quixotic figure, one in which courts become “roving engines of justice careening about the land in search of wrongs to right.”11 Indeed, more inquisitorial judges Graham C. Polando assume both investigative Magistrate (continued on page 24)
St. Joseph Probate Court South Bend, Ind. email@example.com
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JUVENILE COURTS continued from page 23 and adjudicative responsibilities, as more inquisitorial systems place “trust … in professional factfinders rather than lay jurors.”12 Legal systems abhor a vacuum, and if judges do not develop facts and law, that duty falls to parties and their counsel: “Our adversary system is designed around the
premise that the parties … are responsible for advancing the facts and arguments entitling them to relief.”13 Of course, adversarial parties retain attorneys, who in the adversarial system are noble “aid[s] to the understanding and protection of constitutional rights,”14 who “have considered, explored,
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and [if necessary] abandoned” all potential aspects of the case.15 The mistrust of parties in favor of neutral judges partially explains why juvenile courts, charged with effectuating “the best interest of the child,” have skewed inquisitorial. “The interest of the community … is far broader than what a particular adolescent or parent thinks is best for them.”16 Deemphasizing the parties also has procedural implications: “[D]efault rules generally take on greater importance in an adversary system such as ours than in … inquisitorial legal systems.”17 Evidence likewise takes different forms, as more inquisitorial courts rely heavily on ex parte statements and documentary reports.18 Inquisitorial systems, in their relegation of parties, tend to afford less respect to evidentiary privileges.19 Finally, the focus on ex parte communications in more inquisitorial systems echoes in their generally closed nature, in contrast to the classically public adversarial contest.20
Indiana’s inquisitorial juvenile court Juvenile courts have long expressly rejected adversarial procedures. Early reformers feared that the “adversary system would destroy rehabilitative goals” and did not lend itself to the “development and presentation of the relevant scientific behavioral data.”21 Indiana’s early juvenile courts shared this scientific ideal, as “judges needed a great deal of latitude to gather information … without the encumbrance of strict rules of procedure and evidence.”22 Judge Margret Robb and Magistrate Nancy Gettinger quote Indiana’s first juvenile judge for his profoundly inquisitorial outlook: “… if I sat on a high platform behind a high desk … my words had little effect on [a child]; but if I could get close 24
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enough to him to put my hand on his head or shoulder, or my arm around him … I could get his confidence.”23 Juvenile judges still embrace the inquisitorial role: “I need to be more involved than I ever would in civil court. … If I’m not allowed to ask questions, if I can’t be involved, how can I do justice?”24 In Indiana’s juvenile courts, trials are to the bench, not a jury,25 and largely occur in a closed environment.26 Indeed, juvenile courts may conduct what can only be called inquisitions: closed, in camera interviews of children.27
if the evidence would otherwise be excluded.”33
Further, DCS, unlike prosecutors or civil plaintiffs, requires court authorization to both file and dismiss CHINS petitions, and to dismiss petitions to terminate the parent-child relationship.28 More significantly, in the vast majority of child services cases, Indiana prohibits courts from receiving evidence only from the parties, requiring them to dispatch their own disinterested investigators – guardians ad litem or courtappointed special advocates (CASAs).29 These investigators are no doormats – the Indiana Court of Appeals has approved a CASA’s exercising even a “dominant,” “vigorous” role in child services cases.30
The legislature has also provided for fewer privilege protections in the juvenile court, statutorily excluding both the physicianpatient and marital privileges.36 Even the celebrated privilege against self-incrimination suffers: unlike its criminal counterpart, a juvenile court may draw a negative inference from a parent’s invocation of Fifth Amendment rights.37 Finally, default rules are inapplicable, as the cases are “not a mere contest of property rights between two parties. The welfare of a child is not a matter of default.”38
Indeed, if a court’s receipt of ex parte, documentary reports is an inquisitorial benchmark, Indiana’s juvenile courts are essentially continental.31 Upon finding that a particular child needs services, the judge must order the Department to prepare a “pre-dispositional report” and receive additional reports every three months.32 The reports do not end there, as the Indiana Code provides an extraordinary catch-all: “Any report may be admitted into evidence to the extent that the report contains evidence of probative value even
The juvenile court also receives more conventional hearsay. By their own terms, the Indiana Rules of Evidence “do not apply in … preliminary juvenile matters.”34 But “preliminary” juvenile matters are far from routine because there the court either approves the child’s initial removal from the home or orders his or her return. After those matters, hearsay remains largely acceptable; most notably, the court may receive a child’s videotaped statements as substantive evidence.35
The Indiana Supreme Court’s recent cases The Supreme Court gave early signs of its renewed focus on adversarial procedures. In 2012, the Court issued In re K.D.,39 which began by specifically recognizing the inquisitorial nature of the CHINS process40 and resigned itself to the difficulty squaring that nature with a parent’s rights: “Juvenile court judges [must balance] multiple factors and multiple voices … these cases do not fit neatly defined guidelines.”41
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But in striking this “challenging” balance, the Court began to (continued on page 26) RES GESTÆ • JUNE 2015
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JUVENILE COURTS continued from page 25 emphasize that it would not invariably value inquisitorial “best interest of the child” determinations over adversarial protections. Indeed, the Court held that even those parents who have completely abandoned the child not only have a right to actively contest the CHINS adjudication, but to delay the process until they can be located and properly served: when “chil-
dren have absent or even unknown parents … it is critical that DCS properly serve all parties, by publication if necessary … .”42 The next year the Court issued In re C.B.M.,43 which, in reversing a trial court’s termination of parental rights, also necessarily undid the children’s adoption by what all conceded were loving
foster parents. In so doing, the Court again recognized that it was imposing “harsh effects” on them “through no fault of their own.”44 Such “harsh effects” were acceptable, however, “out of due regard for the limitations of judicial power into family life … .”45 The adversarial shift found full expression in 2014. In In re S.D.,46 the unanimous Court began by again recognizing the CHINS proceeding’s unique, largely inquisitorial nature: “Our focus … is on the best interests of the child and whether the child needs help … not whether the parent is somehow ‘guilty’ … .”47 In emphasizing the juvenile court’s practical, amoral inquiry, one might expect the Court to support that court’s inquisitorialism: if it seeks only facts, not condemnation, it should sacrifice fairness for accuracy. But the Court immediately recognized that parents might legitimately question a juvenile court’s pragmatic amorality when its “help comes not by invitation, but compulsion … .”48 This statement seems to call into question numerous prior holdings that two scholars have succinctly characterized: that “[a] parent’s rights are subordinate to the best interests of the child.”49 If a parent has difficulty meeting a child’s needs, her best interests would seem, by definition, to merit intervention to remedy that difficulty. But the S.D. Court recognized that the “compulsion” inherent in a CHINS case imposes very real costs. Finding that Mother had “voluntarily addressed all but one” of the issues causing her child to be “legitimately in need of services,” and that “the remaining evidence fails to show that Mother was likely to need the court’s coercive intervention to complete that final (continued on page 28)
RES GESTÆ • JUNE 2015
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JUVENILE COURTS continued from page 26 item,” the Court reversed the CHINS finding.50 A few weeks later, the Court issued In re E.M.,51 its only 2014 decision affirming a trial court’s action against a parent and, not coincidentally, its most inquisitorial. E.M. was a simple “sufficiency of the evidence” challenge to a court’s termination of parental rights. Notably, the Court emphasized that the decision was the trial court’s, not its own: while “Father’s eventual efforts to establish a relationship with his children were commendable, and DCS’s family preservation efforts with him could have been stronger,” “we defer to the trial court and affirm its judgment.”52 Why this case is an island of inquisitorialism in a sea of more adversarial decisions is quite revealing. One of E.M.’s issues was whether Father’s domestic abuse harmed his children. In finding
that it did, the Court expressly relied on social science publications that were not, presumably, introduced to the trial court; recall that juvenile courts became inquisitorial, at least in part, specifically to embrace such evidence. But a purely adversarial juvenile court cannot. Indeed, while there are universal calls for juvenile court judges to use “evidencebased practices,”53 increase cultural “competence” or “awareness”54 and become more aware of psychological data,55 it is nearly impossible to present, much less test, those studies in an adversarial setting,56 and when parties do not present evidence, the most culturally competent, psychologically informed adversarial judge becomes as ignorant as her evidence. E.M. seems to suggest, then, that while the Court is warning juvenile courts to respect adversarial procedures,
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it will uphold inquisitorialism when it serves the juvenile court’s unique role. Less than a week later, March 13, 2014, the Court again specifically endorsed adversarial principles. In In re G.P.,57 a mother first waived, then requested counsel’s assistance, but “for reasons unknown,” no counsel appeared on her behalf.58 Mother largely failed to comply with the trial court’s dispositional decree, and the Department of Child Services filed a Petition to Terminate her parental rights. Mother failed to appear some three separate times for hearing on the termination petition, but requested (in writing) that the juvenile court appoint counsel for her, a request the Court granted; this time, counsel actually appeared. Following the three-day hearing testimony, the juvenile court terminated Mother’s rights to G.P. Mother, again by counsel, appealed that termination, citing her lack of appointed counsel in the CHINS case. Mother faced long odds. First, she had counsel for the entire proceeding from which she appealed – the termination case. A long line of Indiana cases had held that, “although the CHINS proceeding may well lead to … termination of the parent-child relationship,” the latter “is a separate proceeding …”59 such that any deficiencies in the former could not “infect” the latter.60 Second, Mother argued that counsel was mandatory in the face of a statute saying only that a “court may appoint counsel to represent any parent in any other proceeding [than a termination].”61 A long line of cases suggested that “may” meant that counties could gratuitously provide counsel to CHINS parents, but were not required to do so.
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Most importantly, Mother was pursuing an adversarial remedy in an inquisitorial court: as above, “[a] parent’s rights are subordinate to the best interests of the child.”62 A parent’s procedural rights in a termination proceeding would, one would think, likewise be subordinated to a court’s substantive determination of the child’s best interests. Indeed, the Court of Appeals unanimously affirmed on just these grounds, writing that Mother had to show a substantive problem with the termination: “Mother argues that having counsel would have allowed her to inform the court of things … . It is not clear why counsel was needed to inform the court, when Mother could have informed the court herself … .”63 The inquisitorial juvenile court, in other words, is capable of developing law and facts, and if the court does not require counsel, neither does a parent. Again, however, the Supreme Court unanimously reversed the termination.
each other … .”66 Likewise, Mother’s counsel, in oral argument before the Supreme Court, stated her “hope [that] this Court will clarify” the interaction between the statutes. The Court, however, denied the need for such clarification: “We think the answer is fairly straight-
forward. … [T]o the extent any case law holds that a trial court has discretion to appoint counsel for an indigent parent in a CHINS proceeding, those cases are not correct on that point.”67 If the Court is inclined to impose more adversarial procedures on the juvenile court, (continued on page 30)
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As to the first argument, the Supreme Court flatly rejected the idea that CHINS and TPR proceedings are anything but separate: they are “deeply and obviously intertwined.”64 Moving to whether Mother had a statutory right to counsel, the Court of Appeals noted a conflict between the statute cited above (that providing only that a court “may” provide counsel) and another, one titled “Duty to inform parent, custodian, or guardian of legal rights.” That latter statute stated that the Department was to advise parents of various rights they enjoyed in a CHINS proceeding, including “the right to … be represented by an attorney.”65 The Court of Appeals expressed confusion about “how sections 31-32-4-3 and 31-34-4-6 are to be read in conjunction with RES GESTÆ • JUNE 2015
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JUVENILE COURTS continued from page 29 a preference for counsel makes perfect sense. Indeed, the Court squarely rejected the Court of Appeals’ inquisitorial contention that the trial court could have examined Mother itself: “She is not, at that point, a pro se litigant … .”68 Again, the Court of Appeals found nothing substantively wrong with the court’s determination because Indiana contemplates an inquisitorial role for juvenile court judges, Mother’s attorney’s absence or presence would have made no difference to the outcome. But the Supreme Court questioned the juvenile court’s capacity for such fact-finding, reasoning that counsel would have provided better facts than it alone could discover: “[A]n attorney … could have informed the CHINS court as to the reasons for her
absence and her efforts to engage in services … .”69 The Supreme Court’s implied praise of adversarial fact-finding procedures is generally acknowledged. Indeed, fact-finding is the adversarial system’s pride, with its clash of competing viewpoints producing the best possible fact development,70 a proposition even those skeptical of the adversary system credit.71 In arguing for a more adversarial juvenile court, Prof. Handler maintains that even the best inquisitorial judge cannot “develop affirmative facts on the other side.”72 Even the most conscientious judges view facts through preconceived notions and use convenient heuristics. This would be true even if adversaries presented judges with requisite information, but, of course, “[a] case worker,
even under the best of conditions, cannot explore all facets of the life of the client.”73 But even setting aside the inquisitorial fact-finding procedure’s deficiencies, the Court upheld the attorney’s contribution to the adversarial procedure alone as sufficient grounds for reversal.74 We are used to this conclusion in other areas (most notably the criminal), but it is striking here. Recall that juvenile courts skew inquisitorial because of the supposed conflict between the parties’ – especially the parents’ – interests and those of the non-party child. But the G.P. Court denied such a disconnect and, with it, the basis for the inquisitorial court: “By focusing on due process of the parents at the CHINS adjudication stage, all parties in the CHINS proceeding ultimately benefit, including the child.”75 Contrary to the
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inquisitorial ideal, a parent’s rights are a child’s rights, and a child benefits when a court respects even the rights of unfit parents. In a pair of decisions two weeks later, the Court again reversed a trial court’s termination of parental rights on procedural grounds. In In re S.B.76 and In re I.P.,77 the Court addressed whether one magistrate could base his findings and recommendations on evidence heard by another. There, one magistrate apparently presided over a number of termination hearings, but did not issue findings and recommendations thereon before resigning her position. A new magistrate then “reviewed the hearing record and reported recommended findings and conclusions.” In at least the two cases the Court reviewed, the new magistrate recommended terminating the parent-child relationship, a recommendation approved by the presiding judge. The parent in each case appealed, claiming due process required the same judicial officer who heard the evidence to issue the decision. The Supreme Court agreed and reversed both terminations. Significantly, the new magistrate’s process must have been “inquisitorial,” at least according to the above criteria. The entire process, at least from his perspective, was an investigatory review of “hearsay” (to him) statements. And it was precisely this inquisitorial review that the Court found problematic: “[T]he magistrate who reported recommended findings and conclusions to the judge did not hear the evidence or observe the witnesses firsthand.”78 The Court, in other words, equated “firsthand” observation with due process, and if “firsthand” observation is the hallmark of adversarialism,79 it follows that due process means adversarial procedures.
The Court next issued its most recent child services opinion, that with which this article began. There, the Court all but endorsed the Court of Appeals’ characterization of the evidence against Mother as “overwhelming,” conceding “[i]t is true … that [Mother] was in and out of jail, and in and out of services, throughout the” cases. But adversarial procedure mattered
too: given Mother’s absence, her counsel was prevented from “telling [Mother’s] side of the story. …”80
Conclusion This recent juvenile guidance is largely a positive. Initially, our courts have rightly held that due process requires “a sufficient (continued on page 32)
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JUVENILE COURTS continued from page 31 separation of the prosecutorial and advocacy functions and the adjudicative functions … .”81 Further, ethically conscious judicial officers must hew adversarial: the Code of Judicial Conduct prohibits many inquisitorial activities,82 notably providing that “[a] judge shall not investigate facts … and shall consider only the evidence presented … .”83
because it denied a parent’s procedural rights.
Finally, and perhaps most importantly, the adversarial shift recognizes that accommodating parents’ rights and children’s interests is not a zero-sum game.84 Indiana’s appellate courts have occasionally endorsed such a view, stating, for example, that a parent’s rights and a child’s best interests are “sometimes opposing concerns.”85 That is understandable: if the juvenile court is substantively correct, the child must suffer harm if its adjudication were reversed solely
But perhaps even more importantly, and as the G.P. Court suggested, children benefit when our courts honor all parents’ rights. It seems likely that a child taken from his or her parents would take solace in knowing that the parent was given every possible chance to retain his or her rights. Indeed, some scholars suggest that rights are really those to the family relationship itself, rather than separate ones held by parents and children.86 This is, perhaps, the Court’s
But there are two replies. First, procedural rights rest on the idea that what seems “obvious” at first blush might not be so when parties are forced to assume their burden of proof. As detailed above, among the adversarial system’s greatest strengths is its accurate fact production.
intent in emphasizing that CHINS adjudications should not be applied lightly, not to those parents who merely have “difficulty” meeting children’s needs. A parent-child relationship has biological and psychological value to both of its components. Juvenile courts should not only take heed of, but also welcome, its adversarial antidotes to the inquisitorial process’s shortcomings. 1. These facts are taken from the Indiana Court of Appeals’ unpublished memorandum decision in In re K.W., No. 49A02-1305-JT-468, 1 N.E.3d 221 (Ind. Ct. App. Dec. 31, 2013), accessible at http://www.in.gov/judiciary/ opinions/pdf/12311303msm.pdf. Pursuant to Ind. App. R. 58, the Indiana Supreme Court’s grant of transfer, see In re K.W., 980 N.E.2d 841 (Ind. 2013) (table), vacated the Court of Appeals’ opinion; the Supreme Court’s opinion is discussed infra. 2. Id. at 2. 3. Id. at 7. 4. Id. at 8. 5. See Karen A. Wyle, “Fundamental Versus Deferential: Appellate Review of Terminations of Parental Rights,” 86 Ind. L. J. 29 (2011). 6. David Alan Sklansky, “Anti-Inquisitorialism,” 122 Harv. L. Rev. 1634, 1639 (2008). 7. Prof. Sklansky mentions all of the characteristics as proof of the false dichotomy between “inquisitorial” and “adversarial” systems, but they are useful benchmarks for placement on the continuum. 8. Id.
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9. Wolfgang Zeidler, “Evaluation of the Adversary System: As Comparison, Some Remarks on the Investigatory System of Procedure,” 55 A. L. J. 390, 395 (1981). 10. McNeil v. Wisconsin, 501 U.S. 171, 181, n. 2 (1991). 11. Haitian Refugee Ctr. v. Civiletti, 503 F.Supp. 442, 461 (S.D.Fla. 1980). 12. Sklansky, supra n. 6 at 1639, citing Blakely v. Washington, 542 U.S. 296, 313 (2004). 13. Castro v. United States, 540 U.S. 375, 386 (Scalia, J., concurring in part and concurring in the judgment). See also John Langbein, The Origins of the Adversary Criminal Trial 311 (2003) (“Counsel’s growing domination of the fact-adducing phase of the criminal trial came at the expense of the trial judge.”). 14. Id., at 468 (Stevens, J., dissenting). 15. Marvin Frankel, “The Search for Truth: An Umpireal View,” 123 U. Pa. L. Rev. 1031, 1042 (1975). 16. Joel Handler, “The Juvenile Court and the Adversary System: Problems of Function & Form,” 1965 Wis. L. Rev. 7, 28. See also Perkinson v. Perkinson, 989 N.E.2d 758, 760 (Ind. 2013) (“an agreement to forego
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parenting time in exchange for relief from child support is declared void against public policy.”). 17. Sanchez-Lamas v. Oregon, 548 U.S. 331, 357 (2006). 18. Sklansky, 122 Harv. L. Rev. at 1636 (“antiinquisitorialism figured heavily” in Crawford v. Washington, 541 U.S. 36 (2004). 19. See, e.g., Gregory W. O’Reilly, “England Limits the Right to Silence and Moves Towards an Inquisitorial System of Justice,” 85 J. Crim. Law & Criminology 402, 407 (1994) (“The development of the right to silence in England … was intimately tied to the great struggle between rival systems of criminal procedure – the accusatorial common law courts and the inquisitorial ecclesiastical courts.”) 20. See Crawford, 541 U.S. 36, 48 (2004) (identifying “private judicial examination” as a feature of inquisitorial English admiralty courts) (citation omitted). 21. Handler, supra n. 16 at 26. 22. Margret Robb and Nancy Gettinger, “Juvenile Law: The Quest to Redeem Youthful Offenders,” in David J. Bodenhamer and Randall T. Shepard, The History of Indiana Law 146, 153 (2006). 23. Id. at 153, citing Mennel, Thorns and Thistles 133, citing the U.S. Congress, Children’s Courts in the United States, 58th Cong., 2d sess., 1904, H. Doc. 701. For more on that first juvenile court judge, Hon. George Stubbs, as well as the history of Indiana juvenile courts generally, see Frank Sullivan Jr., “Indiana as a Forerunner in the Juvenile Court Movement,” 30 Ind. L. Rev. 279 (1997).
30. See Kern v. Wolf, 622 N.E.2d 201 (Ind. Ct. App. 1993). 31. See, e.g., A. W. Brian Simpson, “General Editor’s Preface,” in Langbein, Origins, supra n. 13, (“In continental Europe … what is known, perhaps not very happily, as the inquisitorial system, is in force … .”). But see Sklansky, supra n. 6 (arguing that equating continental courts with inquisitorial ones is an outmoded stereotype). 32. Ind. Code §§ 31-34-11-2 and 31-34-21-1. 33. Ind. Code §31-34-22-3. 34. Ind. Evid. R. 101(c). 35. See Ind. Code §31-34-13. 36. Ind. Code §31-34-12-6. 37. In re A.G., 6 N.E.3d 952 (Ind. Ct. App. 2014). 38. In re Marriage of Henderson, 453 N.E.2d 310, 316 (quotation omitted). Young v. Elkhart Cty. Office of Family & Children, 704 N.E.2d 1065, 1069 (Ind. Ct. App. 1999) (defaults are “especially undesirable in the context of divorce or custody proceedings because of the grave importance of the matters decided therein.” Id. at 1068.) 39. 962 N.E.2d 1249 (Ind. 2012). 40. See id. at 1255 (“Juvenile law is constructed upon the foundation of the State’s parens patriae power, rather than the adversarial nature of corpus juris” [citation omitted]).
43. 992 N.E.2d 687 (Ind. 2013). 44. Id. at 695. 45. Id. at 696. 46. 2 N.E.3d 1283 (Ind. 2014). 47. Id. at 1285 (emphasis in original). 48. Id. 49. J. Eric Smithburn and Ann Carol Nash, “Family Law – Children in Need of Services,” Indiana Practice Series 15A §27:31, 559 (2012-2013 ed.) (citing cases). 50. In re S.D. at 1290-1291. 51. 4 N.E.3d 636 (Ind. 2014). 52. Id. at 640 (emphasis supplied). 53. See, e.g., Randy Borum, “Managing At-Risk Juvenile Offenders in the Community: Putting Evidence-Based Principles Into Practice,” 19 J. of Cont. Crim. Justice 114 (2003). 54. See, e.g., Alan J. Dettlaff, “Immigrant Children and Families and the Public Child Welfare System: Considerations for Legal Systems,” 63 Juv. & Fam. Ct. J. 19 (2012). 55. See, e.g., Kristine Buffington, Carly Dierkhising, & Shawn Marsh, Ten Things Every Juvenile Court Judge Should Know About Trauma and Delinquency (2010) (accessible at http://www.ncjfcj.org/resource-library/ publications/ten-things-every-juvenile-courtjudge-should-know-about-trauma-and) (“To be most effective in achieving its mission, the
41. Id. 42. Id. at 1257.
(continued on page 34)
24. Michele Benedetto Neitz, “A Unique Bench, A Common Code: Evaluating Judicial Ethics in Juvenile Court,” 24 Geo. J. Of Legal Ethics 97, 110, 125 (citing interview with the Hon. Deborah Hitchens, Supervising Judge, S.F. Unified Family Court, S.F., Cal,. [Aug. 6, 2009]). 25. Ind. Code §31-32-6-7, accord McKeiver v. Pennsylvania, 403 U.S. 528 (1971). 26. Ind. Code §31-32-6-2 (“The juvenile court shall determine whether the public should be excluded from a proceeding,” subject to certain exceptions). 27. Ind. Code §31-17-2-9(a). 28. Ind. Code §31-34-9-1(a) (filing CHINS petition); Ind. Code §31-34-9-8(c) (dismissing CHINS petition); Ind. Code §31-35-2-4.5(d) (dismissing petitions to terminate parental rights). 29. Ind. Code §31-34-10-3. Many of these features are federally mandated conditions for a state’s receipt of child abuse and adoption assistance funding. See, e.g., 42 U.S. Code §5106a(b)(2)(B)(xiii) (requiring receiving states to enact “provisions and procedures requiring that in every case … a guardian ad litem … or a court appointed special advocate … be appointed to represent the child in such proceedings … to obtain first-hand, a clear understanding of the situation and needs of the child; and to make recommendations to the court concerning the best interests of the child.”).
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JUVENILE COURTS continued from page 33 juvenile court must both understand the role of traumatic exposure in the lives of children and engage resources and interventions that address child traumatic stress.”).
65. Ind. Code §31-34-4-6(a)(2)(A)
79. Crawford, supra n. 18.
66. In re G.P., 985 N.E.2d at 789 n. 2.
80. In re K.W.,12 N.E.3d 241, 247 (Ind. 2014).
67. 4 N.E.3d at 1163 (internal footnote omitted).
81. Rynerson v. City of Franklin, 669 N.E.2d 964, 967 (Ind. 1996).
56. See Roper v. Simmons, 543 U.S. 551, 617 (2005) (Scalia, J., dissenting) (critically noting that “… the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding.”) (emphasis supplied).
68. Id. at 1164-65 (emphasis in original).
57. 4 N.E.3d 1158 (Ind. 2014).
71. See, e.g., Richard A. Posner, Overcoming Law 503 (1995) (“The high costs of information may explain the emphasis in law and politics on adversarial procedure. We need not buy into the lawyers’ mystical faith in the production of truth by contests of liars … to accept that the prospect of rebuttal is a deterrent to dishonest rhetoric because it reduces the likelihood that the audience will be deceived.”)
58. Id. at 1160. 59. State ex rel. Gosnell v. Cass Circuit Court, 577 N.E.2d 957, 958 (Ind. 1991). Accord Ind. Code §31-35-2-2 (providing that proceedings to terminate the parent-child relationship “are distinct from proceedings under IC 31-34,” i.e., CHINS). 60. Stone v. Daviess Cty. Div. Child Serv., 656 N.E.2d 824, 830 (Ind. Ct. App. 1995) (internal citations omitted). The “infect” metaphor comes from In re G.P. at 1165. 61. Ind. Code §31-32-4-3(b) (emphasis added). 62. Smithburn and Nash, supra n. 49. 63. In re G.P., 985 N.E.2d 786, 790-91 (Ind. Ct. App. 2013), vacated, trans. granted by In re G.P., 993 N.E.2d 182 (Ind. 2013). 64. 4 N.E.3d at 1165. See also In re J.S., 906 N.E.2d 226 (Ind. Ct. App. 2009) (citation omitted) (a court considering a termination petition “may consider the parent’s response to the services offered” by DCS).
69. Id. at 1167-68 (internal footnote and citations omitted). 70. See Sklansky, supra note 6 at 1686 (“… different kinds of advantages have been claimed for these [adversarial] procedural features,” including “… improved accuracy in factfinding … .”)
72. Supra n. 16 at 29. 73. Supra n. 16 at 30, 41. 74. 4 N.E.3d at 1167. (“Indiana courts have applied a bright-line rule as to the right to counsel – reversing convictions or other judgments when that right is denied. … We think this bright-line rule is the right approach to take here, as well.”) 75. Id. at 1168, citing In re K.D., 962 N.E.2d at 1259. 76. 5 N.E.3d 1152 (Ind. 2014). 77. 5 N.E.3d 750 (Ind. 2014).
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84. But see Janet Weinstein, “And Never the Twain Shall Meet: The Best Interests of Children and the Adversary System,” 52 U. Miami L. Rev. 79, 88 (“The adversary system tends to camouflage issues of concern to the child by directing the discussion at the rights of the parents.”), citing Frank P. Cervone & Linda M. Mauro, “Ethics, Cultures, and Professions in the Representation of Children,” 64 Fordham L. Rev. 1975 (1996). 85. Roark v. Roark, 551 N.E.2d 865, 869 (Ind. Ct. App. 1990). 86. See, e.g., John Thomas Halloran, “Families First: Reframing Parental Rights as Familial Rights in Termination of Parental Rights Proceedings,”18 U.C. Davis J. of Juv. L. & Policy 51, 80 (2013) (illustrating “how deeply ingrained and intertwined … the interests of minors and their parents are – even though those interests frequently are distinctly articulated. Even in termination proceedings – occasions where parental interests and children’s interests are at their most adversarial – the rights of parents and children are difficult to disambiguate.”) (citations omitted).
Graham C. Polando, South Bend, is a magistrate, St. Joseph Probate Court, and a lecturer in sociology & social work at Manchester University. He extends his deep thanks to Hon. Nancy L. Gettinger, Hon. J. Eric Smithburn and Ann Carol Nash for helpful comments on draft versions of this article. Opinions expressed and errors committed are, of course, the author’s alone and do not express a position in any particular case or set of cases, pending or future.
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83. Ind. Code of Jud. Cond. Rule 2.9(C).
78. Id. at 752.
Curtis E. Shirley
82. See, e.g., Neitz, supra n. 24 at 97 (“Despite their distinct role in an atypical court, juvenile court judges are not subject to unique ethical standards … the potential for ethical violations and injustice is significant.”).
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By Donald R. Lundberg
Splitting the baby revisited: lawyer fee fights
he Indiana Supreme Court recently issued an opinion on transfer dealing with the rich and oft-recurring topic of how lawyers divide fees after they part ways. Cohen & Malad, LLP v. Daly, ___ N.E.3d ___, 2015 WL 1581941 (Ind. April 8, 2015).
Workin’ hard for the money
Four factors Cohen & Malad appealed, arguing that the seminal case of Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999), required the trial court to give it an equitable portion of the fees Daly collected when the cases he took with him yielded recoveries. Cohen & Malad v. Daly, 17 N.E.2d 940 (Ind. Ct. App. 2014). Cohen & Malad had shown at trial that its lawyers contributed more than 1,000 hours to the cases Daly took with him. Without providing much rationale, the Court of Appeals first held it was error for the trial court to hold that Cohen & Malad should have sued its former clients, not Daly. This was undoubtedly a sound decision. Ever since Galanis, the law in Indiana has been clear that these types of fee-division fights should be between the lawyers without dragging the clients into the fray. I wrote about this at some length some years ago. Lundberg, “Splitting the Baby: Dividing Fees Between Successive Contingent Fee Lawyers,” Vol. 50, No. 5 Res Gestae 38 (December 2006)
The Court of Appeals went on to rule that Cohen & Malad was not entitled to any fees from the cases Daly took with him. The majority, in an opinion written by Judge Baker, pointed out that Galanis was an equity case arising from the doctrine of unjust enrichment. Looking at the following factors, the Court of Appeals held the trial court properly found that Daly was not unjustly enriched: (1) The clients, given a choice, had opted to go with Daly. (2) There was no agreement between Cohen & Malad and Daly, described as “sophisticated parties,” concerning how fees should be divided in the circumstances. (3) There was no agreement between Cohen & Malad and Daly regarding non-competition or ownership of client files. (4) Cohen & Malad made a lot of money from Daly’s work when he was with the firm.
Daly was an associate with Cohen & Malad. While there, he worked on contingent fee cases. By all accounts, he worked hard and obtained good results – not just for the clients, but also for the firm in fee recoveries. Daly’s deal with Cohen & Malad was that he would receive a $120,000 salary and discretionary annual bonuses. The firm did well by Daly. In 2009, the first full year Daly was with the firm, the cases he was responsible for generated more than $4 million in fees. The firm recognized the effort by granting him a bonus of $600,000 for 2009. His bonus was less in 2010 – $175,000. Harkening back to an informal discussion he had had with a Cohen & Malad partner months before he joined the firm, Daly thought his productivity should be recognized through total compensation in the amount of half of the fees generated by the cases for which he was responsible. In 2011, Daly left Cohen & Malad and joined another law firm. When Daly left, 24 Cohen & Malad clients, given the choice to stay or leave, chose to continue with Daly as their lawyer at his new firm. There was no contractual understanding between Cohen & Malad and Daly about how fees would be handled for the cases that moved with Daly to his new firm. Most of the Cohen & Malad fee agreements provided that the firm had an attorney’s lien on the proceeds of cases if the firm was terminated.
Cohen & Malad sued Daly and his new firm, claiming fee rights in the cases Daly took with him under the doctrine of quantum meruit. It did not sue Daly’s clients. It did seek a preliminary injunction against Daly to prevent him from distributing the fee portion of client recoveries. Daly claimed, among other things, that Cohen & Malad had breached its contract with him and also violated the Indiana Wage Payment Statute. After a bench trial, the trial court denied both sides relief against the other, including relief to Cohen & Malad on its quantum meruit claim. The trial court’s rationale was that Cohen & Malad should have brought an equity claim against the clients, not against Daly.
Non-competition agreement … huh? The third point is worth discussing further. The Court of Appeals’ opinion failed to take account of Rule of Professional Conduct 5.6(a), which provides: “A lawyer shall not participate in offering or making a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the rights of a lawyer to practice after termination of the relationship … .” Or to discuss Matter of Truman, 7 N.E.3d 260 (Ind. 2014), a lawyer discipline case in which the Supreme Court held that a lawyer’s associate employment agreement violated that rule because, in part, it “included provisions for dividing fees if Associate left the firm Donald R. Lundberg Barnes & Thornburg LLP that were structured to Indianapolis, Ind.
(continued on page 36) donald.lundberg@BTLaw.com RES GESTÆ • JUNE 2015
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ETHICS CURBSTONE continued from page 35 create a strong financial disincentive to prevent Associate from continuing to represent clients he had represented while employed by the firm.” Id. at 260. The Truman Court criticized the agreement because it “hampered both Associate’s right to practice law and Associate’s Clients’ freedom to choose a lawyer … .” Id. at 261. The Court of Appeals in Cohen & Malad also failed to give any express consideration to the axiomatic point that lawyers don’t own their clients; clients are free to discharge counsel at any time, for any reason.
Too good to be true Nonetheless, the Court of Appeals stated that it was considering those four factors, including factor three, in determining whether the trial court’s decision was clearly erroneous. In the end,
the court basically concluded that Cohen & Malad had already made enough money from Daly’s work while he was with the firm and was entitled to nothing from the clients’ cases that Daly took with him. “While [Cohen & Malad] was entitled to make a shrewd deal for Daly’s services, under these circumstances, we agree with the trial court that [Cohen & Malad] has failed to prove that Daly was unjustly enriched, and, therefore [Cohen & Malad] has failed to show that it is entitled to quantum meruit recovery.” 17 N.E.3d at 947. Judge Crone dissented, pointing out that in his view the compensation Daly was paid while at Cohen & Malad was irrelevant to the Cohen & Malad’s claim that it was entitled to be compensated for the 1,000-plus hours that its attorneys had invested in the cases Daly took with him. Judge Crone
thought that Galanis required that Cohen & Malad must be equitably compensated for its contribution to the cases from which Daly would receive a fee.
One word: Galanis In a brief per curiam opinion on transfer, the Supreme Court took note of the four factors considered by the Court of Appeals’ majority. Interestingly, the Court did not comment on whether factor three focused on elements that are problematic under Rule of Professional Conduct 5.6(a), the Truman case and the idea that clients have the autonomy to choose their lawyers. It reversed, noting per Galanis that absent a contrary agreement “‘a lawyer retained under a contingent fee contract but discharged prior to the contingency is entitled to recover the value of services rendered if there is a subsequent settlement or award[,]’ and in that case, ‘the fee is to be measured by the proportion of the total fee equal to the contribution of the discharged lawyer’s efforts to the ultimate result[.]’” Slip op. at 2, quoting Galanis at 860. The case was remanded with instructions for the trial court to follow Galanis’s methodology by determining what proportional contributions were made by the attorneys at Cohen & Malad and Daly’s new firm. The Court also summarily affirmed the Court of Appeals’ finding of error in the trial court’s reasoning that Cohen & Malad should have sued its former client, not Daly. There is nothing earth-shattering here. It is a reaffirmation of the continued vitality of the Galanis approach to dividing fees after lawyers handling contingent fee cases part company. There is plenty of room for reasonable, private contractual understandings between lawyers. But absent
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such agreements, the default methodology will be as described in Galanis that the fees in the case will be divided using a ratio based on the hours the feuding lawyers invested in the representation adjusted for other factors, like the quality of the lawyer’s respective efforts. It is also reaffirmation of the important notion that lawyerversus-lawyer fee fights should be confined to the lawyers and not become an imposition on clients.
What’s cause got to do, got to do with it? In closing I should point out that there is a dearth of authority in Indiana on how such situations are to be handled when a lawyer claiming fees has been discharged by the client for good cause or abandons the representation without just cause. The Indiana fee-division cases arise from circumstances where there was no fault associated with the change of lawyers. Cohen & Malad is a good example of that. The law firm was discharged not because it did anything untoward in the clients’ cases, but merely because Daly left and the clients had to choose to stay or go. In Galanis, the first lawyer took a judicial position and could no longer continue with the representation. I suggest that it is a different case when the client discharges a lawyer for good cause and hires a new lawyer to carry on with the representation; or when a lawyer abandons the client’s case without just cause. Should the discharged lawyer be entitled to nonetheless claim a quantum meruit fee? A recent, well-reasoned case from Minnesota says, “No.” In Re Petition for Distribution of Attorney’s Fees between Stowman Law firm, P.A. and Lori Peterson Law Firm, 855 N.W.2d 760 (Minn. Ct. App. 2014). In that case, the
lawyer urged the client to accept a settlement offer. The client declined the offer as the client is absolutely entitled to do. See Prof. Cond. R. 1.2(a). Instead of carrying forward with the representation, the first lawyer quit, leaving the client to hire new counsel. When the second lawyer settled the case for twice the earlier offer, the first lawyer sued for a fee from the recovery. The
Minnesota Court of Appeals held that the first lawyer was not entitled to any fee from the matter. The client’s exercise of her exclusive right to reject a settlement offer did not create just cause for the lawyer to abandon the client and her case. Having done so, the lawyer also abandoned any claim to a fee.
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· Use of ISBA digital badge on your website to highlight your support · Listing on the ISBA website · Recognition in ISBA publications, print & electronic · A specialty ribbon for name badge to wear at meetings & events · A lapel pin to indicate your support of the ISBA · Recognition at the ISBA Annual Meeting · 10% discount on basic registration for the ISBA Annual Meeting Look for this new membership category when you renew your dues online. RES GESTÆ • JUNE 2015
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By Curtis T. Jones and Jasmine Ivy-Dede
Appellate civil case law update
RECENT DECISIONS 2/15
he Indiana Supreme Court issued four opinions in February, but none of them involved civil matters or disputes. Additionally, the Supreme Court granted transfer in two civil cases, which are discussed below. For February, the Indiana Court of Appeals issued 14 published civil opinions, several of which are highlighted herein. The full text of all Indiana appellate court decisions, including those issued not-forpublication, are available via Casemaker at www.inbar.org or the Indiana Courts website, www.in.gov/judiciary/opinions.
INDIANA SUPREME COURT Vicarious liability of medical provider in malpractice claim
Stafford alleged that certain medical acts and omissions caused her baby to be stillborn and filed a medical malpractice complaint on behalf of herself and her deceased child. The trial court concluded that Stafford had failed to present a genuine issue of material fact Curtis T. Jones concerning the stanBose McKinney & Evans LLP dard of care exhibited Indianapolis, Ind. by the medical profesCJones@boselaw.com sionals and, thus, granted summary judgment in favor of the defendants. Stafford had designated an affidavit from a reviewing medical professional, but the Indiana Court of Appeals affirmed the trial court’s conclusion that the Jasmine Ivy-Dede affidavit did not rebut Summer Associate the presumed approBose McKinney & Evans LLP priate standard Indianapolis, Ind. of care. Stafford v. email@example.com
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Szymanowski, 13 N.E.3d 890 (Ind. Ct. App. 2014). The Court of Appeals noted that Stafford’s expert directed much of the blame toward a doctor who had not been named as a party to the claim before the medical review panel. To that end, the Court of Appeals considered whether a health care provider could be held vicariously liable for the perceived acts of medical malpractice committed by its agentphysician when the physician’s conduct was never reviewed by the medical review panel. The court held that the health care provider could not. The Indiana Supreme Court has granted transfer. Stafford v. Szymanowski, 25 N.E.3d 746 (Ind. 2015).
Transfer orders vacated in insurance coverage matter In Selective Insurance Company of South Carolina v. Erie Insurance Exchange, 14 N.E.3d 105 (Ind. Ct. App. 2014), the Indiana Court of Appeals held that a lessor was an “additional insured” under lessee’s insurance policy and that an exclusion of coverage for property in insured’s care, custody or control did not apply to a claim against lessor. On Dec. 18, 2014, the Indiana Supreme Court granted transfer. Selective Ins. Co. of South Carolina v. Erie Ins. Exchange, 21 N.E.3d 838 (Ind. 2014). On Feb. 5, transfer was denied with Justice David dissenting from the denial. Similarly, on Feb. 26, the Indiana Supreme Court granted transfer and vacated Indiana Insurance Co. v. Kopetsky, 14 N.E.3d 850 (Ind. Ct. App. 2014). After further review, oral argument and discussion among the justices in conference, the Court vacated its transfer order and reinstated the Indiana Court of Appeals’ published decision as precedent. Chief Justice Rush and Justice
Dickson dissented from the denial of transfer.
INDIANA COURT OF APPEALS Requirement of a final judgment prior to filing a notice of appeal In Arflack v. Town of Chandler, 27 N.E.3d 297 (Ind. Ct. App. 2015), the Indiana Court of Appeals discussed appellate jurisdiction when a trial court simultaneously grants a motion to dismiss while providing additional time to the nonmoving party to amend the complaint. After a motion to dismiss was entered against Arflack, he chose to file a notice of appeal prior to the expiration of the time allowed for him to amend his complaint and thus before a final disposition had been rendered by the trial court. The court, in Arflack, reasoned that the only party harmed by an entry of judgment immediately upon the grant of the motion to dismiss was the party against whom the motion was directed. Thus, if the non-moving party does not wish to plead over, then no harm has occurred from the error. Under the circumstances, the court deemed that a denial of appellate jurisdiction and review would only serve to delay the judicial process. Chief Judge Vaidik concurred in the result in a separate opinion.
When to file an attorney fee lien In Clem v. Watts, 27 N.E.3d 789 (Ind. Ct. App. 2015), the Court of Appeals reviewed statutory evolution, legislative history and case law to determine whether an attorney’s intention to hold a lien upon a judgment was valid when entered prior to the judgment being rendered. After 14 months representing a party in a dissolution proceeding, Watts withdrew his
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appearance. Two months later, one year before issuance of the dissolution decree, Watts filed a Notice of Attorney Fee Lien, “enter[ing] his intention ... to hold a lien pursuant to Indiana Code §33-43-4-1 on all money and property awarded to [Wife].” The Court of Appeals construed the attorney fee lien statute, which states, in relevant part, an intention to hold a lien on a judgment must be entered “not later than sixty (60) days after the date the judgment is rendered … upon the docket or record in which the judgment is recorded.” The Court of Appeals reasoned that the statute’s clear and unambiguous language requires that a lien must be entered “after” the judgment is rendered and recorded. This holding is consistent with the court’s construction of the mechanic’s lien statutes. In sum, Clem held that Watts’ attorney fee lien filed before judgment was entered was invalid.
Volunteer doctrine rejected In Hunckler v. Air Source-1, Inc., 26 N.E.3d 65 (Ind. Ct. App. 2015), transfer denied (Ind. May 14), the Indiana Court of Appeals reversed the trial court’s grant of summary judgment. Hunckler was injured when Miller, Air Source-1’s president and sole employee, requested his assistance lowering a furnace down the stairs of a home where Hunckler resided. The trial court concluded that Hunckler operated as a volunteer when he agreed to assist Miller, upon Miller’s request, following case law. A split, 2-2, decision in Thompson v. Owen, 218 N.E.2d 351, 358 (Ind. Ct. App. 1966), concluded that a plaintiff who had been injured while aiding a defendant, at defendant’s request, was a volunteer and hence barred from recovery unless there was proof the injury was willful. In Hunckler,
the Court of Appeals questioned whether Thompson’s plurality was binding, ultimately deciding to not follow the Thompson outcome. Adopting an approach outlined by the Supreme Court of Michigan, James v. Alberts, 626 N.W.2d 158, 162 (Mich. 2001), the Court of Appeals decided to “abandon” the volunteer doctrine in favor of traditional tort and agency principles. The trial court’s grant of summary judgment in favor of the defendant was reversed, and the case remanded. Judge Robb issued a separate opinion concurring in result.
Landlord liability to signators of lease In Meridian North Investments v. Sondhi, 26 N.E.3d 1000 (Ind. Ct. App. 2015), an individual entered into a lease on behalf of his company. That individual was later injured while on the leased premises and sought recovery from the landlord. The landlord argued that an exculpatory provision in the lease prevented the injured party from recovery. This argument was rejected. The Court of Appeals noted that the lease was not between the injured party and the landlord – but between the injured party’s company and the landlord. Thus, the injured party was found to be a third party to the lease, not a tenant, and able to proceed with his claim against the landlord.
Application of the common knowledge exception Jamie Thomson suffered an injury to her shoulder and arm when her arm was found dangling from an operating table during a hysterectomy procedure at St. Joseph Regional Medical Center (SJRMC) in Thomson v. Saint Joseph Regional Medical Center, 26 N.E.3d 89 (Ind. Ct. App. 2015). Approximately one hour into the surgery, Dr. Michael Borkowski,
the anesthesiologist for the procedure, noticed the arm dangling due to a board supporting her arm becoming detached at some point in the surgery. Dr. Borkowski, unaware of how or when the board detached, reattached the board and made a note in his record. This case arrived at the Court of Appeals after the trial court granted summary judgment in favor of defendants, SJRMC and Dr. Borkowski, relying on the medical review panel’s determination that the defendants were not negligent nor the proximate cause of Thomson’s injuries. Dr. Zimmerman, a neurologist at SJRMC who diagnosed Thomson with a right radial nerve injury, likely caused by compression, later testified that he believed the injury resulted from the fallen arm board. While the trial court determined Dr. Zimmerman’s testimony, along with the testimony of other hospital personnel, insufficient to rebut the findings of the medical review panel, the Court of Appeals concluded otherwise. Citing several cases, the Court of Appeals determined the case to be one of “common knowledge,” declaring “common sense and experience leads us to conclude that an arm board should not become detached leaving a patient’s arm dangling for such a period of time that the patient suffers nerve injury.” The Court of Appeals, determining the case fitting for exception under the doctrine of res ipsa loquitur, held that expert testimony was not required in the case. Further, the findings and testimony of Dr. Zimmerman were sufficient to rebut the opinion of the medical review panel, creating a question of fact. Summary judgment in favor of the defendants was reversed. (continued on page 40)
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RECENT DECISIONS 2/15 continued from page 39 Admissibility of testimony from naprapath as medical expert In Walnut Creek Nursery, Inc. v. Banske, 26 N.E.3d 648 (Ind. Ct. App. 2015), the Court of Appeals held that pretrial motions are irrelevant when a party does not object to the admissibility of certain testimony during trial that may have been precluded by a motion in limine. Therefore, the only issue on appeal was whether, as a matter of law, a naprapath may testify as to the treatment of a patient in Indiana. Walnut Creek Nursery, Inc., d/b/a Alsip Home & Nursery (Alsip), appealed a jury verdict in favor of Barbara Banske (Banske), alleging that the trial court committed reversible error by allowing a naprapath, Laura Grice (Grice), to offer expert medical testimony. Grice is an Illinoislicensed naprapath who provided treatment to Banske’s injuries in Illinois, for slip-and-fall injuries sustained on Alsip’s premises in Indiana. The Court of Appeals in Banske does a nice job describing
the practice and treatment of a naprapath. The Court of Appeals noted that whether a naprapath may testify concerning treatment of a patient in Indiana is one of first impression. Indiana does not license naprapaths, whereas in Illinois such practice is subject to regulation and control by a state agency. The Court of Appeals stated that given Grice’s treatment of Banske preand post-injury and her licensed status under Illinois law, her testimony with regard to Banske’s injuries was potentially “helpful” to the finder of fact. Referencing Kyowski v. Burns, 388 N.E.2d 770 (Ill. App. Ct. 1979), the Court of Appeals held that “Grice’s testimony about her treatment of Banske’s injuries was sufficiently connected to Banske’s slip and fall” and affirmed the trial court’s decision.
Claim for violation of Indiana’s Antitrust Act In Skyline Roofing & Sheet Metal Co., Inc. v. Ziolkowski Construction, Inc., 26 N.E.3d 1024 (Ind. Ct. App. 2015), the Court of
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Appeals reversed the trial court’s grant of summary judgment on behalf of the defendants. The court held that the complaint “sufficiently alleged a scheme instigated by Ziolkowski to exclude Skyline and to constitute a restraint of free competition,” and remanded the cause for further proceedings. To arrive at this conclusion, the Court of Appeals reasoned that the collective designated evidence went beyond “‘speculation’ and ‘innuendo,’ rais[ing] at a minimum a genuine issue of material fact that Ziolkowski colluded to substitute a non-union contractor with a union contractor.”
Defining limitations of Indiana Department of Natural Resources authority The Indiana Court of Appeals reviewed the legality of high-fence hunting of deer in Indiana Dept. of Natural Resources v. Whitetail Bluff, LLC, 25 N.E.3d 218 (Ind. Ct. App. 2015), and held that, presently, this practice is not prohibited by law in Indiana. The decision, affirming the trial court’s grant of summary judgment to Whitetail Bluff, also construed the statutory exceptions to Indiana Department of Natural Resources (IDNR) authority and responsibility. The court held that the Department exceeded its authority when it attempted to regulate operation of Whitetail Bluff based upon Emergency Rule 312 IAC 9-3. The Department improperly disregarded a limitation of its authority, excepting “cervidae legally owned or held in captivity under a license or permit,” reading the exception listed in subsection (a) as independent from the authority granted IDNR in subsection (b). Ind. Code §14-22-1-1 (2015). Citing DeHart v. Town of Austin, Ind., 39 F.3d 718, 723 (7th Cir. 1994), the Court of Appeals reasoned that Section 14-22-1-1
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“should be construed to mean that the Department has authority to manage all fish and wildlife in Indiana except animals that are legally owned or being held in captivity under license or permit,” holding that the statute does not authorize the Department to protect and manage wild animals fitting the exception. The Court of Appeals acknowledged the ethical arguments and public policy concerns, but noted that the task of deciding such issues is for the Indiana General Assembly. Curtis T. Jones is a partner at Bose McKinney & Evans LLP in the firm’s litigation, insurance and appellate groups. While at Valparaiso University School of Law, Curtis served as executive symposium editor for the Valparaiso University Law Review, earned an honors program scholarship, and served for a year in an externship with the Hon. Kenneth F. Ripple, U.S. Court of Appeals, Seventh Circuit. Upon graduating and prior to joining Bose McKinney & Evans, Curtis served as a judicial law clerk to Justice Theodore R. Boehm on the Indiana Supreme Court. His email is CJones@boselaw.com.
Expertise + Passion = Results Estate & Trust Litigation & Mediation Brian C. Hewitt, Esquire Alerding Castor Hewitt, LLP Indianapolis & Greenwood 317-829-1910 firstname.lastname@example.org } Fiduciary Litigation Committee – American College of Trust & Estate Counsel } Mediator of Over 750 Probate, Trust & Guardianship Disputes } Counsel in Hundreds of Will Contest, Accounting, Breach of Fiduciary Duty & Guardianship Cases } Super Lawyer® Top 50 – Numerous Years } Board Certified Indiana Trust & Estate Lawyer
Jasmine Ivy-Dede is a summer associate at Bose McKinney & Evans LLP, currently pursuing two degrees: a J.D. at the I.U. Robert H. McKinney School of Law and a master’s in public affairs/public management at the I.U. School of Public & Environmental Affairs. She also has held positions at LADD Realty and at Indianapolisarea advocacy groups such as Stand for Children and the Indiana Institute for Working Families. In addition to her studies, Jasmine is involved in many activities on campus, including I.U. Student Outreach Clinic, the Women’s Caucus, Black Law Student Association, Student Ambassador and Phi Delta Phi. As an undergrad, she served as president of the Political Science Student Association and participated in the Black Student Union and the African American Chorale Ensemble.
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By Prof. Joel M. Schumm
Prosecutorial misconduct, criminal confinement, other holdings
CRIMINAL JUSTICE NOTES 2/15
he Indiana Supreme Court issued three opinions in February that addressed the concealment-tolling provision for criminal offenses, several claims in a death penalty case, and a short opinion in a prosecutorial misconduct case to “prevent a potential misunderstanding of Indiana’s fundamental error doctrine.” The Court of Appeals decided cases involving issues of prosecutorial misconduct, the sufficiency of evidence for criminal confinement, the single larceny rule, and discoverability of pharmacy records.
INDIANA SUPREME COURT Narrow construction of concealment-tolling provision Class B felony charges must be filed within five years, but Indiana Code section 35-41-4-2(h)(2) exempts any time from criminal statutes of limitation during which an accused “conceals evidence of the offense, and evidence sufficient to charge the person with that offense is unknown to the prosecuting authority and could not have been discovered by the authority by exercise of due diligence … .” In Study v. State, 24 N.E.3d 947 (Ind. 2015), the trial court denied a motion to dismiss a robbery charge filed more than five years after the crime. The State’s amended charging information alleged the defendant had concealed evidence of
Joel M. Schumm Clinical Professor of Law IU Robert H. McKinney School of Law Indianapolis, Ind. email@example.com 42
(1) his identity by wearing a mask during the offense; (2) the vehicle that he used to drive away after the robbery; (3) the trash can used during the robbery that he took from the bank; (4) clothing he wore during the robbery; (5) personal property taken from a victim;
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(6) the weapon used during the commission of the offense; and (7) evidence relating to other robberies which displayed a common modus operandi …
Id. at 951. After reviewing several Indiana cases, the Court explained that cases “applying the concealment-tolling provision to only positive acts that conceal that an offense has been committed are correct.” Id. at 953. Emphasizing that courts have given a narrow construction to provisions that toll the statute of limitations, the Court concluded that none of the defendant’s actions prevented “law enforcement from discovering that a bank had been robbed. The State’s ability to investigate the crime and develop a case was not thwarted.” Id. at 954. Rather, authorities “discovered the robbery and were able to begin investigating immediately.” Id.
Death penalty case affirmed: presumption of prejudice from extra-judicial communication with jurors rebutted In Weisheit v. State, 26 N.E.3d 3 (Ind. 2015), the Indiana Supreme Court addressed several claims on direct appeal of a death penalty case, including exclusion of a prison administration expert’s testimony, denial of for-cause challenges during jury selection, suppression of statements to police, and the propriety of the death sentence. The opinion was one of the Court’s first opportunities to apply the framework from Ramirez v. State, 7 N.E.3d 933 (Ind. 2014), for claims of jury taint from communications with people outside the jury. Specifically, defendants are entitled to a presumption of prejudice if they show by a preponderance of the evidence:
(1) extra-judicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or communications pertained to the matter before the jury. If the defendant makes both showings, [t]he burden then shifts to the State to rebut this presumption of prejudice by showing that any contact or communications were harmless. If the State does not rebut this presumption, then the trial court must grant a new trial.
Id. at 15-16 (internal citations and quotation marks omitted). In Weisheit, Juror Number 10 brought cookies baked by his wife to the jury room. An accompanying note read, “Thank you for your service for the family of Alyssa [and] Caleb Lynch. I will pray for you all to have strength and wisdom to deal with the days ahead. God bless!” Id. at 13. Alyssa and Caleb were the children the defendant was charged with killing. The trial court questioned the 15 jurors and alternates individually, of which “four were unaware of the note, five were aware of the note but had not read it, and the remaining six recalled that the note thanked them for their jury service. Each stated that the note had no effect on them.” Id. at 13. The trial court individually questioned the jurors, issued an admonishment, and dismissed Juror Number 10. Id. at 16.1
Fundamental error and prosecutorial misconduct Last year in Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014), the Court of Appeals cited numerous examples of misconduct, including that the deputy prosecutor “improperly distinguished the roles of the prosecution and defense, vouched for the credibility of the witnesses and the justness of the cause, and asked argumentative and inflammatory questions.” Id. at 88. Although defense counsel
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did not object to any of these, the Court of Appeals nevertheless reversed based on fundamental error. The panel later issued a short opinion on rehearing, concluding the misconduct was “much more egregious than in” Ryan v. State, 9 N.E.3d 663 (Ind. 2014), and that “the prosecutor’s misconduct did amount to fundamental error under the standard now to be used.” Brummett v. State, 21 N.E.3d 840 (Ind. Ct. App. 2014). That quotation could be read to suggest the Indiana Supreme Court had altered the fundamental error standard in Ryan. In its short opinion, the Indiana Supreme Court explained that Ryan had not altered the fundamental error doctrine. Brummett v. State, 24 N.E.3d 965, 966 (Ind. 2015). The Court summarily
affirmed the opinion of the Court of Appeals “[w]ith the exception of the rehearing opinion’s potentially misleading reference to ‘the standard now to be used.’” Id.
COURT OF APPEALS Prosecutorial misconduct in closing argument After reversing a criminal confinement conviction based on a violation of the Confrontation Clause, the Court of Appeals addressed claims of prosecutorial misconduct that could arise if the State chose to retry the defendant, who had also been charged with rape and other offenses on which the jury did not reach a verdict. Thornton v. State, 25 N.E.3d 800 (Ind. Ct. App. 2015). As in Brummett, the alleged misconduct occurred during closing argument, and defense counsel failed to object.
First, in response to defense counsel’s argument that samples from the crime scene were “inconclusive” for a match of the victim’s blood, the prosecutor argued the police “had a minimal amount of time because of the speedy trial request in which to get all this testing done.” Id. at 806 (italics removed). Because defendants have a constitutional right to a speedy trial, blaming a “shortcoming in the State’s evidence on a defendant’s invocation of a fundamental right surely constitutes prosecutorial misconduct, and likely also constitutes fundamental error.” Id. Second, the prosecutor emphasized that women are “made to feel like they’re on trial” or “criminals” and that “we re-victimize these people who come forward with (continued on page 44)
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rape.” Id. The Court of Appeals found the comments fell within three prohibited categories of argument: (1) convicting a defendant for reasons other than guilt, (2) invoking sympathy for a victim, and (3) urging a conviction to “encourage other victims to come forward.” Id.
The Court of Appeals admonished the prosecutor from making similar comments at a retrial.
Insufficient evidence of criminal confinement In McFadden v. State, 25 N.E.3d 1271 (Ind. Ct. App. 2015), the Court of Appeals addressed the sufficiency of evidence for criminal confinement, a Class B felony. Reviewing precedent, the court explained that moving a victim even a few feet has been sufficient for a conviction but that the State must prove “substantial interference” with the victim’s liberty without consent. Id. at 1274. In McFadden, the defendant pushed, hit and kicked the victim and pulled his hair. The victim “never testified that he felt confined,” and his injury during the battery did not prove confinement. Id. The Court of Appeals vacated the confinement conviction and ordered reinstatement of the Class C felony battery conviction, which had been vacated by the trial court based on double jeopardy concerns. Id. at 1275.
Single larceny and restitution reversal A department store employee convicted of two counts of theft and ordered to pay more than $2,500 in restitution obtained relief on two grounds from the Court of Appeals in Hill v. State, 25 N.E.3d 1280 (Ind. Ct. App. 2015). First, the court ordered one of the two theft counts vacated based on the single larceny rule because the defendant’s 44
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theft of currency (Count 1) and inventory (Count 2) occurred at the same cash register within minutes of each other. Id. at 1282. Second, the Court of Appeals vacated the restitution order because the trial court had included losses from theft allegations unrelated to the convictions in its restitution award. Restitution must be based on the actual loss to the store, and the employee was detained by loss prevention officers, and the items were confiscated from her at that time. Id. at 1283.
INSPECT records discoverable by criminal defendant The existence of a valid prescription is a defense to the Class D felony offense of possession of a controlled substance. Lundy v. State, 26 N.E.3d 656, 657 (Ind. Ct. App. 2015). But when a defendant subpoenaed the Indiana Board of Pharmacy for a copy of her INSPECT (“Indiana scheduled prescription electronic collection and tracking program”) report, the Board filed a motion to quash, which the trial court granted because the defendant had failed to show she could not get her prescription records elsewhere. Id. at 657 & n. 2. Applying Indiana’s three-part test for discoverability of records, the Court of Appeals reversed. Id. at 660. The Board did not dispute that the records were material to her defense. Moreover, the court held that a defendant knowing where she could “possibly” obtain her records did not make those records “readily available” to her, which is part of the particularity requirement intended to maximize discovery. Id. at 662. 1. The Court further found the defendant was not entitled to a mistrial based on “cumulative juror impropriety” because he failed to establish that an actual juror was biased. Id. at 16. The trial court had found Juror Number 2 untruthful and removed him from the jury. Id. at 15. Juror Number 66 was not selected.
THE INDIANAPOLIS OFFICE of Littler Mendelson is looking for an associate with 1-4 years of labor & employment law experience. The candidate should possess excellent academic credentials, and his/her experience should include significant litigation experience. An Indiana bar license is preferred but not required. Please apply online at: www.littler.com/Careers. WANTED: 3 sole practitioners interested in sharing office space in Class A building in Carmel. All services provided with an association of attorneys with an overflow of business. Terms negotiable.Please email inquiries to firstname.lastname@example.org.
INDIANAPOLIS LITIGATION attorney available for wide range of litigation and appellate assignments. More than 25 years as litigator. Have handled more than 30 appeals. Either employment or contract arrangement possible. Ronald G. Sentman, 317/875-6702, RonaldS53@comcast.net. WORKER’S COMPENSATION. Evansville attorney Kevin R. Bryant seeks referrals on worker’s compensation cases statewide. Please telephone 812/437-9991. HEARING COUNSEL – Experienced collection & landlord attorney available to cover your local counsel needs in Allen, Adams, DeKalb, Whitley, Noble, Steuben, Wells and LaGrange counties. Reasonable rates, prompt service. Contact Robert C. Feightner, email@example.com, 260/755-0873.
INDIANAPOLIS IMMIGRATION attorney seeks professional or co-counsel positions with Indiana attorneys in the practice of immigration law. Over 25 years’ experience in immigration. Will handle adjustment of status, change of status, labor certificates and other matters. Also, will attend interviews at Indianapolis Immigration Office. Thomas R. Ruge, Lewis & Kappes, P.C., 317/639-1210, firstname.lastname@example.org
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INSURANCE DEFENSE & coverage. AV-rated northwest Indiana insurance defense firm with over 75 years of combined experience in insurance practice is available to work with insurance companies on coverage issues and to represent insureds in litigation throughout northern Indiana. Huelat Mack & Kreppein P.C., 450 St. John Rd., Suite 204, Michigan City, IN 46360, 219/8793253, email@example.com ERISA CLAIMS, long-term disability, health insurance claims, life insurance claims. Contact Bridget O’Ryan, 317/255-1000, 1901 Broad Ripple Avenue, Indianapolis, IN 46220, firstname.lastname@example.org
FRED PFENNINGER, COMMERCIAL & other collections. When you need help collecting your judgment. On faculty for over 30 seminars on collection law. Statewide referrals, consultation and co-counsel positions. Pfenninger & Associates, 317/848-7500, email@example.com EMPLOYMENT LITIGATION Indianapolis area attorney available for referrals and co-counsel affiliations on wide range of employment matters. 25+ years of experience representing businesses and employees. Robert S. Rifkin, Maurer Rifkin & Hill, P.C., 317/844-8372.
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VETERANS DISABILITY. Accepting referrals of veterans' disability, military Medical and Physical Evaluation Boards, Courts Martial, military discharge upgrade and Boards for Correction of Military Records cases throughout Indiana and across the country. Bosley & Bratch, 800/9536224, email@example.com, www.lawyers4veterans.com STEVE TUCHMAN, IMMIGRATION. Experienced practitioner for statewide referrals, consultation and co-counsel positions. Lewis & Kappes, P.C., 317/639-1210, STuchman@ Lewis-Kappes.com
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HEALTH CARE PROVIDER license defense. Experienced nurse attorney is available to represent nurses, physicians, pharmacists, dentists, veterinarians and other licensed health care professionals before the various licensing boards or to respond to an attorney general’s office license investigation. Lorie A. Brown, RN, MN, JD, firstname.lastname@example.org, 317/465-1065.
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By Michael D. Wilhelm
Focusing on the needs of a growing senior population
uring national Elder Law Month, which is every May, attorneys across the country offer public seminars, elder law clinics and other activities designed to educate the public. To commemorate Elder Law Month in Indiana, the State Bar’s Probate, Trust & Real Property (PTRP) and Elder Law sections, in conjunction with local Area Agencies on Aging, sponsored and presented informational programs on advance directives to Hoosier senior citizens. The programs were open to the public throughout the state at no cost. The National Academy of Elder Law Attorneys established May as Elder Law Month as a way to educate seniors and their families about their legal options in dealing with long-term care, estate planning, Medicaid, Medicare, elder abuse and fraud, and other important issues. Elder Law Month endeavors to educate seniors and empower them to address these likely issues and find legal services and resources. America’s population age 65 and over numbered approximately 44.7 million in 2013, an increase of 8.8 million, or nearly 25 percent, since 2003. The number of Americans between 45 and 64 – who will reach 65 over the next two decades – increased by nearly 21 percent between 2003 and 2013. Elder Law Month emphasizes the importance of planning for the health and legal needs of an increasingly older population. Programs this year incorporated the relatively new Indiana Physician Orders for Scope of Treatment (POST) form, which became effective July 1, 2013. Indiana’s POST form can be used by a qualified person, who after consultation with a healthcare provider, can make advance decisions concerning use of CPR, medical interventions, antibiotics and artificially administered nutrition. A qualified person is one with: 1) an advanced, chronic and progressive illness or frailty; 2) an injury, illness or disease from which there will be no recovery and death will Michael D. Wilhelm occur within a short period of time withDeFur Voran LLP out the provision of life-prolonging proceFishers, Ind. dures; or 3) a medical condition such that email@example.com resuscitation from cardiac or pulmonary
RES GESTÆ • JUNE 2015
failure would be unsuccessful or result in repeated cardiac or pulmonary failure resulting in death. More information on Indiana’s POST form can be found at www.indianapost.org. Attorney volunteers from the PTRP and Elder Law sections coordinated and presented programs in at least 50 counties throughout Indiana to hundreds of seniors at venues such as libraries, senior centers, community rooms and hospitals. Some attorneys, such as John W. Longnaker (Madison County: Anderson and Pendleton) and Teri A. Pollett-Hinkle (Grant and Blackford counties) gave multiple presentations. In addition to the attorney volunteers who gave presentations, members of the Elder Law and PTRP sections also provided materials for the presentations, recruited presenters and coordinated with local Area Agencies on Aging to schedule programs. Keith P. Huffman and Christopher L. Nusbaum, both from Bluffton, created a PowerPoint® presentation titled “Advance Health Care Planning in Indiana: What You Need to Know,” which was distributed to each attorney presenter to use in developing their own presentations. The following attorneys each served as coordinators and recruiters in regions throughout the state: Connie L. Bauswell, Douglas D. Germann Sr., Keith P. Huffman, Doris G. Brauman Moore, Monica S. Doerr, Jennifer W. Terry, Michael D. Wilhelm, Teri A. PollettHinkle, Tricia R. Tanoos, Rebecca W. Geyer, Crystal L. Francis, Christopher J. Holly, E. Paige Freitag, Douglas R. Denmure, Adrienne M. Flannery, Jeff R. Hawkins, Jennifer J. Hawkins, Peggy F. Timmel, Adair W. Brent and David Smith Jr. These are just some of the attorneys who dedicated their efforts and valuable time to help make the ISBA’s celebration of Elder Law Month a success. If you did not get a chance to participate this year, but would like to in the future, please mark your calendars for Elder Law Month each May and feel free to reach out to the current chair of the Probate, Trust & Real Property Section, Sarah C. Jenkins, firstname.lastname@example.org, or the current chair of the Elder Law Section, Jane Langdon Null, email@example.com, for more information.
June 2015 edition of Res Gestae, the journal of the Indiana State Bar Association