The Journal of the Indiana State Bar Association
STATE OF THE JUDICIARY: PRAISE FOR OUR PARTNERS IN JUSTICE MISTITLING OF THE MAGISTRATE JUDGE ETHICS CURBSTONE: LAWYER DISCIPLINE 2016
Vol. 60 No. 6
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The Journal of the Indiana State Bar Association
July/August 2016 2017 January/February
Vol. 60 No. 16
FEATURES State of the Judiciary: Praise for our partners in justice
By Hon. Loretta H. Rush
To thine title be true: mistitling of the magistrate judge
By Ruth Dapper
Data analytics: Hollywood & the practice of law
By Sharon D. Nelson and John W. Simek
DEPARTMENTS EDITOR Susan J. Ferrer firstname.lastname@example.org
GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino email@example.com
ADVERTISING Chauncey L. Lipscomb firstname.lastname@example.org
WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey email@example.com Cover by Vincent Morretino
LDA Class of 2017
Criminal Justice Notes
Fit to Practice
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. © 2017 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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Embracing millennials By Mitchell R. Heppenheimer
y good friend, Ben Fryman, last year’s chair of the State Bar’s Young Lawyers Section, wrote an excellent article in the September issue of Res Gestae about the ISBA and millennials. This month’s “Perspective” is a sidebar to Ben’s article. Since the term “millennials” is used so frequently these days I want to better identify who they are and why it’s important to appreciate them. Generally, millennials are defined as people between the ages of 25 and 35 years of age. Much has been written about the characteristics of this generation, and I wish to point out a few of the positives of this group. They have a strong sense of community; they are civic-minded; they are upbeat about America’s future and generally optimistic; they multitask extremely well; they demand versatility and flexibility in the workplace and in life; they want a strong work-life balance; they have great expectations about their workplace; they can be hardworking and very productive; they are engaging and good team players; they want positions of leadership; they want a seat at the table and be included when decisions are made; and they are all about social media – it drives their lives. So why is it important to appreciate millennials? In significant numbers, they’re our current and future members of the legal profession. Of course, many recent law school grads will be hired by law firms as well as in-house counsel. However, many of these new lawyers are “hanging out their shingle” as opposed to working for firms or corporations. This appears to be more commonplace. These millennial lawyers will interact with other lawyers as they practice law – in transactions, in court and other areas too numerous to mention. There is no question that
these lawyers need mentoring, knowledge and skills to provide legal services for their clients and to work within the legal system. These millennial lawyers are truly the future of our profession. They are also the future of the ISBA. They need to be members of the State Bar to contribute to our mission and purpose. They will provide resources of time and effort. Among them are future leaders of our profession, our communities, our country and our world. Along with being our colleagues, millennials also make up the current and future client base that needs legal services. This will continue to increase in the future, too. Millennials are occupying positions within governmental bodies such as local or county counsels as well as state and federal government administrations. They are in many positions in non-profit organizations as well. This generation has attained management positions in business nationally, regionally and locally. They are making decisions on how these organizations operate and provide services or products. One of the best examples of such inroads is in the workplace environment. Many international and national businesses are totally restructuring how their workplace or office appears and functions. A new method being used is a single, open office setting with no individual offices or desks. Companies have open spaces where all the employees work. Each employee, no matter what level, from president to intern, all work in one area with unassigned small tables and a computer. This is being driven by millennials. Millennials are engaged in and starting up new companies. This is especially true in the field of technology and all of
its related endeavors. Think about all the craft beer breweries and wineries that have burst upon the scene over the last several years. Most of these have been started by millennials. All millennials, like most everyone else, encounter work or life issues that require the advice of a lawyer. These millennial clients are the primary targets of the alternative legal service providers that currently operate (Avvo, LegalZoom) and threaten our core values. Make no mistake about it – millennials do desire to get sound legal advice. The legal profession needs to supply solutions to their problems, not the alternative legal service providers. The topic of engagement and retention of millennials by bar associations was the theme of Indiana’s presentation at the ABA Great Rivers Conference this past November. The ISBA is striving to recruit and engage these fine folks to be members and to further the Association and legal profession. The State Bar is also developing a social media campaign intended to, among other things, attract the millennial client base that is as important as having millennial members. I would encourage you to take a millennial to lunch or for a cup of coffee (or other beverage) to get to know him or her better and perhaps to mentor them. Our profession needs them both as members as well as clients. q
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ASSOCIATION NEWS Nominations sought for ISBA board positions
ny lawyer member of the Indiana State Bar Association who desires to be considered for nomination to a vacancy on the Board of Governors should convey that interest to the chair of the Association’s Nominating Committee, Douglas D. Church of Noblesville. Members who are nominated will face an election at the annual meeting of the Association Assembly to be held in Indianapolis in late September, after which a two-year term will commence. District vacancies for the term October 2017 through October 2019 are as follows: District 1, representing Lake County; District 4, representing Allen County; District 5, representing the counties of Benton, Boone, Carroll, Cass, Clinton, Fountain, Howard, Jasper, Montgomery, Newton, Tippecanoe, Warren and White; District 10, representing the counties of Adams, Blackford, Delaware, Grant, Henry, Huntington, Jay, Madison, Miami, Randolph, Tipton, Wabash, Wayne and Wells; and
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District 11, representing Marion County, two positions. At-Large, one position. (Members from any district may apply.) Letters of interest and résumés, not longer than two pages (with information as to leadership positions or other activity within the State Bar as well as other affiliations) should be sent to Douglas D. Church, Chair, ISBA Nominating Committee, Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. The deadline for receipt is April 21. q
ABA prez to keynote Solo & Small Firm Conference
he Indiana State Bar Association recently announced that Linda A. Klein, president of the American Bar Association and senior managing shareholder at Baker Donelson Bearman Caldwell & Berkowitz, will be the keynote speaker at its 2017 Solo & Small Firm Conference June 1-3 in French Lick, Ind. This year’s theme is “Lawyering Like Lincoln: Leading & Succeeding in a New Legal World.”
Klein’s practice, based in Atlanta, Ga., includes most types of business dispute resolution, including contract law, employment law and professional liability, working extensively with clients in the construction, higher education and pharmaceutical industries. Klein will speak at the morning plenary starting at 8:30 a.m. on Friday, June 2, at the French Lick Resort. Also at this year’s conference will be national speakers Jeff Lantz, Tucson, Ariz., “Ernie the Attorney” Svenson, New Orleans, La., and Reid Trautz, Washington, D.C. The registration brochure will be available in the March issue of Res Gestae. q
Search firm to find new ISBA E.D. candidates
he ISBA Board of Governors is beginning its search for a next executive director, retaining Waverly Partners, LLC to assist in the search. Waverly Partners is a national executive search firm with extensive experience working with associations and other non-profit organizations. Immediate Past President Carol M. Adinamis will serve as chair of an 11-member Succession & Search Committee that will work with Waverly Partners to identify qualified local, regional and national candidates. “Waverly Partners consultants will meet with our committee and a number of the Association’s leaders and key constituents to develop a profile that will outline the experience and leadership characteristics of our desired candidate,” Adinamis said. “Our committee is open to executives with backgrounds in other bar associations, business associations, economic development organizations, other kinds of nonprofits, private sector or related experience with a commitment to our mission.” ISBA Executive Director Tom Pyrz is retiring in late 2017 after serving the Association for 25 years. For more information, contact search consultants Joel Epstein or Harrison Turnbull at ISBA @waverly-partners.com. q
ISBA Calendar of Events INDIANA STATE BAR ASSOCIATION One Indiana Square, Suite 530 Indianapolis, IN 46204 800/266-2581 • 317/266-2588 fax www.inbar.org
OFFICERS President President-Elect Vice President Secretary Treasurer Counsel to the President
Mitchell R. Heppenheimer, South Bend, firstname.lastname@example.org Andi M. Metzel, Indianapolis J. Todd Spurgeon, New Albany Beau F. Zoeller, Indianapolis E. Spencer Walton Jr., Mishawaka R. William Jonas Jr., South Bend
BOARD OF GOVERNORS 1st District Michael J. Jasaitis, Crown Point 2nd District Jaime M. Oss, LaPorte 3rd District Paul G. Crowley, South Bend 4th District David E. Bailey, Fort Wayne 5th District Daniel L. Askren, Attica 6th District Rebecca W. Geyer, Carmel 7th District Laura Paul, Terre Haute 8th District Steven S. Hoar, Evansville 9th District Timothy J. Vrana, Columbus 10th District Hon. Angela G. Sims, Anderson 11th District Hon. Tanya Walton Pratt, Indianapolis 11th District Deborah J. Caruso, Indianapolis 11th District George M. Plews, Indianapolis At-Large District Shontrai D. Irving, Hammond At-Large District Edward D. Thomas Sr., Indianapolis Past President Carol M. Adinamis, Westfield House of Delegates Michael E. Tolbert, Gary, Chair House of Delegates Amy N. Dudas, Richmond, Chair-Elect Young Lawyers Allyson E. Claybourn, Evansville, Section Chair
STAFF Executive Director Thomas A. Pyrz • email@example.com Administrative Assistant Kimberly D. Latimore • 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 Local & Specialty Bar Liaison | LDA Catheryne E. Pully • email@example.com Director of Meetings & Events Ashley W. Higgins • firstname.lastname@example.org Administrative Assistant Shanae Gay • email@example.com Director of CLE Whitney Ruffin • firstname.lastname@example.org Administrative Assistant Debra Dukehart • DDukehart@inbar.org Section & Committee Liaison Melanie Zoeller • email@example.com Administrative Assistant Barbara L. Mann • firstname.lastname@example.org Membership Records & Technology Coordinator Stacy Vessely • email@example.com Bookkeeper & Convention Registrar Sherry Allan • firstname.lastname@example.org Receptionist Chauncey L. Lipscomb • email@example.com
Women’s Bench Bar Retreat Culver, Ind.
The Ethics of Representing Adult Clients with Diminished Capacity, Indianapolis
The Ethics of Representing Children with Disabilities as Clients, Indianapolis
Leadership Development Academy Session 3, Valparaiso
ISBA Board of Governors Meeting Indianapolis
ABA TECHSHOW Chicago
ISBA Law Student Conclave Indianapolis
Leadership Development Academy Session 4, MUTC, Butlerville
ISBA Spring Getaway Charleston, S.C.
ABA Day Washington, D.C.
Utility Law Section Spring Seminar Conrad Hotel, Indianapolis
Leadership Development Academy Session 5, Bloomington
Solo & Small Firm Conference French Lick, Ind.
ISBA Board of Governors Meeting French Lick, Ind.
ISBA Board of Governors Meeting Michigan City
ISBA Board of Governors Meeting Indianapolis
ISBA Annual Meeting Indianapolis
“Talk to a Lawyer Today” Prep CLE Indianapolis
Utility Law Section Fall Seminar Bloomington
For more information on ISBA CLE programs & events, visit www.inbar.org, email firstname.lastname@example.org or call 800/266-2581. RES GESTÆ • JANUARY/FEBRUARY 2017
ISBA welcomes 25 lawyers to its Leadership Development Academy
he Indiana State Bar Association recently announced the Class of 2017 of its Leadership Development Academy, now entering its sixth year. The lawyers are accomplished legal practitioners who have been admitted to practice for less than 15 years. The Academy is a statewide leadership program established to empower and develop lawyers to be informed, committed and involved so that they may fill significant leadership roles in local and state bar associations, local communities and organizations and to serve as role models in matters of ethics and professionalism. The 25 members will participate in five sessions featuring professional facilitators and prominent speakers from various disciplines to inform participants
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about leadership principles and techniques, the importance of effective leaders in organizations to maximize efficiency and effectiveness, and the challenges and rewards of leadership in action. Members of the 2017 Leadership Development Academy are as follows: Dawn M. Adams, Indianapolis, Indiana Disability Rights; Adeyemi O. Adenrele, Indianapolis, Barnes & Thornburg; Rachel A. Arndt, Rochester, Peterson Waggoner & Perkins; Yolanda Cardona, Crown Point, State Farm; Alyssa C.B. Cochran, New Albany, Kightlinger & Gray; Abigail A. Diener, Delphi, Obear Overholser Huffer & Rider; Emily L. Angel Eads, Indianapolis, Kids’ Voice of Indiana; Natalie M. Fierek, North Webster, Law Office of Natalie M. Fierek; Adriana Figueroa, Indianapolis, U.S. District Court for the S.D. of Indiana; Benjamin D. Fryman,
Valparaiso, Schwerd Fryman & Torrenga; Ashley N. Hand, Fort Wayne, Beckman Lawson; Dustin L. Howard, Salem, Dustin L. Howard LLC; Andrew B. Howk, Indianapolis, Hall Render Killian Heath & Lyman; Cristin L. Just, Demotte, Law Offices of Charles P. Dargo; Hon. Samuel R. Keirns, Fort Wayne, Allen Superior Court; Michelle C. Langdon, Indianapolis, law clerk to Justice Steven H. David; Ryan T. Leagre, Indianapolis, Plews Shadley Racher & Braun; Kevin J. Mitchell, Fort Wayne, Faegre Baker Daniels; Katie R. Osborne, Indianapolis, Riley Bennett & Egloff; Dylan A. Pittman, Indianapolis, law clerk to Indiana Chief Justice Loretta H. Rush; Paul J. Schilling, Indianapolis, Office of the Indiana Attorney General; Finis Tatum IV, Indianapolis, Glaser & Ebbs; Adam D. Turner, Warsaw, Turner Valentine; Travis A. Van Winkle, Indianapolis, Law Office of Travis Van Winkle; and Jennifer L. Weber, Indianapolis, Office of Judicial Administration/Indiana Office of Court Service. q
The 2017 ISBA Leadership Development Academy Class
DAWN M. ADAMS Indianapolis
ADEYEMI O. ADENRELE Indianapolis
RACHEL A. ARNDT Rochester
YOLANDA CARDONA Crown Point
ALYSSA C.B. COCHRAN New Albany
ABIGAIL A. DIENER Delphi
EMILY L. ANGEL EADS Indianapolis
NATALIE M. FIEREK North Webster
ADRIANA FIGUEROA Indianapolis
BENJAMIN D. FRYMAN Valparaiso
ASHLEY N. HAND Fort Wayne
DUSTIN L. HOWARD Salem
ANDREW B. HOWK Indianapolis
CRISTIN L. JUST Demotte
HON. SAMUEL R. KEIRNS Fort Wayne
MICHELLE C. LANGDON Indianapolis
RYAN T. LEAGRE Indianapolis
KEVIN J. MITCHELL Fort Wayne
KATIE R. OSBORNE Indianapolis
DYLAN A. PITTMAN Indianapolis
PAUL J. SCHILLING Indianapolis
FINIS TATUM IV Indianapolis
ADAM D. TURNER Warsaw
TRAVIS A. VAN WINKLE Indianapolis
JENNIFER L. WEBER Indianapolis
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STATE OF THE JUDICIARY
Praise for our partners in justice By Chief Justice of Indiana Loretta H. Rush Gov. Holcomb, Lt. Gov. Crouch, members of the General Assembly, colleagues on the bench, family and friends: Welcome to the 2017 “State of the Judiciary.”
t is always a privilege to join the leadership of our executive and legislative branches in this magnificent chamber. A new year is a fitting time for the judicial branch to renew our pledge to work together for the benefit of every Hoosier. As Chief Justice of Indiana it is my duty to report to you the condition of Indiana’s courts – my third such address. Our courts continue to carry out our constitutional mission in the 1,396,362 cases that came before us last year. But we do not fulfill our mission alone. We owe our success to many “partners in justice” – the focus of today’s address.
But, first, I am pleased to introduce to you our newest justice, Geoffrey Slaughter. You might assume that being appointed to the Court in June was the highlight of 2016 for him. And it was – until Nov. 3 when at 1:30 a.m., 39,466 days of disappointment ended. Stop by Justice Slaughter’s chambers, and he will gladly share in play-by-play detail every moment of the Cubs’ historic World Series win. Congratulations to Geoff on both counts!
Honoring Justice Rucker We now turn our attention from our Court’s newest member to our longest serving. In 1964, while working at a Lake County steel mill, a Gary Roosevelt High
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School graduate began studies at Indiana University Northwest. He was called away from his undergraduate days to serve our country in Vietnam where, as a member of the Army 1st Air Cavalry Division, he fought to relieve Marines who were under siege at Khe Sanh. He was later awarded a Purple Heart and a Bronze Star for his heroism. Returning from service, he graduated from Valparaiso Law School and began his legal career as a deputy prosecutor, then worked as a city attorney and as a private practice attorney, before being appointed to the Court of Appeals in 1991, and then the Supreme Court in 1999. Justice Rucker has written 1,235 legal opinions – opinions that are being read in courthouses across the country, including one special courthouse in Lake County, named in his honor. His body of work stands as a powerful illustration of the guidance courts provide for the peaceful resolution of disputes encompassing nearly every facet of Hoosier life. His opinion in Anglemyer v. State, [868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 818] which has been cited nearly 7,000 times throughout the country, brought clarity to Indiana’s sentencing laws in a time of great upheaval. Justice Rucker’s opinions have enforced core constitutional values – such as preserving family integrity and community [see, e.g., Bester v. Lake Cnty. Office of Family and Children, 839 N.E.2d 143 (Ind. 2005); In re E.M., 4 N.E.3d 636, 65056 (Ind. 2014) (Rucker, J., dissenting)]; and ensuring access to justice for people with limited English proficiency [Ponce v. State, 9 N.E.3d 1265 (Ind. 2014)]. Justice Rucker is one of Indiana’s few members of the American Law Institute – one of the nation’s most influential groups of legal scholars. His contributions to Indiana’s jurispru-
Photo by Vincent Morretino
dence are remarkable. His legal scholarship is innovative and insightful in applying the constitutional values he has sworn to uphold. But perhaps most importantly, Justice Robert Rucker has always had the courage and fortitude to protect the rights of all, regardless of their state in life. He has the ability to stand in the shoes of any person and understand their plight. In a word, he has a tremendous sense of humanity. We will be returning to Gary Roosevelt High School on March 9 of this year to hear one of Justice Rucker’s final arguments. Our colleague and friend is retiring after 26 years of distinguished judicial service. Thirty-one appellate judges have had the honor of serving with this brilliant, collegial and humble public servant. He has made all of us better. Please join me and Justices David, Massa and Slaughter in thanking Justice Robert D. Rucker for his long, faithful and conscientious service to the people of Indiana.
Updates Now, I would like to briefly report on the progress of several previously announced initiatives. Our commercial courts are already hearing dozens of complex business litigation cases in the six pilot sites serving companies throughout our state. We completed an exhaustive reorganization of our judicial branch administrative services. Part of that process was a nationwide search for a chief administrative officer: a search that brought us just 50 miles away – to New Castle. Please welcome Judge Mary Willis as our first CAO. We have continued our commitment to make dedicated Veterans Courts available to all qualified service members. Soon, six new Veterans Courts will join our 19 existing ones. Overall, 82 such problem-solving courts are addressing substance abuse, mental health, violence and reentry issues. Finally, we welcomed nine Marion County Small Claims Court
judges as full-time judicial officers under the Code of Judicial Conduct and sharing in our technology and judicial education programs. We are glad to have them join us today.
Partners in justice This past year, your judiciary has made progress every day to make practical improvements to the courts. And we have not done it alone. Running Indiana’s courts requires the hands and hearts of thousands of women and men in all of our 92 counties. These partners in justice are often overlooked. But not today. Dozens of judges from across the state are here to show their gratitude for the hard work of our partners. Who are these partners? They are the clerks, support staff, public defenders, prosecutors, probation officers, volunteers, advocates, law enforcement, interpreters, service providers, mentors, educators, community corrections, child services employees, local government officials, attorneys and others.
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STATE OF THE JUDICIARY Continued from page 11 Please direct your attention to the gallery and north balcony, where you will see some of these partners who are essential to justice in our state. For the rest of this address, I will take you on a statewide tour, highlighting their vital contributions in three major and ongoing judicial branch initiatives: 1. Adopting modern technology to revolutionize our court system; 2. Ensuring public safety that complements your important criminal code reforms; and 3. Supporting and strengthening Hoosier families in need.
Revolutionary use of technology What better place to begin than with our constitutional partners – the clerks. Above Clerk Christine Eurton’s door in the Floyd County courthouse is the saying: “Justice Begins … at the Clerk’s Office.” And how right they are! Clerks
along with court staff are playing a critical role in our judicial branch’s modernization efforts. Hamilton County Clerk Tammy Baitz and Chief Deputy Debbie LePere are pioneers of our electronic filing system, which streamlines the legal process and saves time and money. After successfully implementing e-filing in Hamilton County, they now graciously host and train many of our judges, clerks and support staff. Our state began electronic filing in July 2015 with the goal of improving efficiency and accessibility to our courts. In just 18 months we have expanded this technology to more than 25 percent of counties, totaling 30,000 filings each week! This number will continue to grow as the system is deployed statewide within the next two years. Tammy and Deb, please stand on behalf of all clerks. We could not have tackled this needed reform
without the perseverance and grit of all of you. As Tippecanoe County Clerk Christa Coffey is clearing out rooms full of paper in her own county, she is helping us determine what documents should be made available online. Clerk Coffey and Henry County Clerk Debra Walker are both representatives on the Advisory Task Force on Remote Access to & Privacy of Electronic Court Records. Our partners serving on this task force also include several of you, along with the Hoosier State Press Association, ACLU, law professors and other citizens. With valuable input from this diverse group, the Court has approved free online access to certain court documents, and we look forward to their continued thoughtful analysis as we balance privacy and access.
Criminal Code reform Law enforcement is certainly one of our vital partners in the implementation of criminal justice reform. It is my honor as Chief Justice to administer the oath each year to new Indiana State Police troopers. I make it a point to sit down individually with each of them, and, in doing so, I can’t help but think of all the challenges that lie ahead for them. They are on the front lines, dealing with problems that make their way into our courtrooms such as drug overdoses, domestic violence and children in crisis. Wayne County Judge Darrin Dolehanty refers to his local Sheriff Jeff Cappa as a hero in the Juvenile Detention Alternatives Initiative, otherwise known as JDAI. This program’s objective is to keep communities safe while reducing childhood incarcerations. It is well documented that many people, including children with mental health issues, end up in detention due to a lack of treatment options. In one case, a child with mental health issues was becoming increasingly aggressive, and the family was struggling, resulting in many officer visits to the
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STATE OF THE JUDICIARY Continued from page 12 child’s home. Sheriff Cappa was instrumental in working with the courts and the child’s family so the child could receive much needed mental health treatment instead of a juvenile jail cell. And JDAI is working. Indiana has 32 JDAI counties with initial reporting showing a 50 percent reduction in children being incarcerated, along with a corresponding 45 percent reduction in felony charges. Naturally, these reductions resulted in significant dollar savings to both the individual counties and to the state. Only the many JDAI partnerships, including those with law enforcement, make this possible. Of course, we are not confining reform efforts to our children. We are undertaking a smart and intentional review of the overall fairness of court procedures that require monetary bail for low-risk offenders who do not exhibit a threat to public safety. Eleven counties – Allen, Bartholomew, Grant, Hamilton,
Hendricks, Jefferson, Monroe, Porter, St. Joseph, Starke and Tipton – have already assembled pilot teams that include prosecutors, public defenders, law enforcement officers and elected officials. These teams are working together to find better ways to assure that low-risk offenders are attending their court hearings, regardless of their families’ ability to bail them out of jail. We are grateful for the hard work of these local teams who are providing data to create a framework for smarter and safer pretrial decision-making. Probation is under the direction of our trial court judges, and increased probation supervision is an important element of criminal justice reform. Miami County Judges Daniel Banina, David Grund and Timothy Spahr depend on probation officers like Mandy Miller to diligently supervise offenders. Mandy and five other probation officers oversee more than 700 people who are on probation in their county. Sound
Your donations brought the We The People program to 3,500 Hoosier boys and girls. You can help more students become critical thinkers with a donation to civic education. To donate: www.inbf.org 615 N. Alabama St. #122 Indianapolis, IN 46204 All donations tax deductible To volunteer: email@example.com
RES GESTÆ • JANUARY/FEBRUARY 2017
overwhelming? Don’t tell that to Mandy. She instituted what she called a “pink file,” which includes those important tasks that she can’t get to during the day. That pink file goes home with her at night – because people are depending on her. Last year Indiana had 1,300 probation officers supervising more than 129,000 offenders; or in other words, one officer for every 100 offenders. Indiana’s courts depend on dedicated probation officers, and we are grateful for their critical and tireless work. Courts implementing criminal justice reform require increased utilization of community-based corrections to help offenders succeed. Last year more than 35,000 offenders were placed on community corrections. Successful community placement cannot be achieved by government alone. In Dubois County, there is a special 79-year-old community corrections volunteer named Bob Vogler. He is a civic-minded retiree who leads a partnership between local work-release and a faith-based community called Churches Embracing Offenders. Bob’s commitment to helping offenders reintegrate back into their community is about much more than finding work for them. Bob leads 100 volunteers from eight churches that are focused on the spiritual and emotional well-being of the offenders in the program. He hosts a monthly Wednesday night meal, meets and prays with his clients, and donates his time to making their lives better. Yes, your judiciary depends on volunteers like Bob. Bob, could you please stand? We need more of you.
Strengthening Hoosier families Healthy families represent the foundation of every society. But sadly that is not the case for thousands of Hoosier families that are appearing before us in court and in crisis. Our partners are making a difference to help those in need find a better path. Modern challenges do not weaken the Indiana Constitution’s mandate to administer justice freely, completely, and speedily. To the contrary,
that mandate is more urgent now than ever. I doubt you would be surprised to know that those guiding words from the Indiana Constitution hang in the law library down the hall. You may not know that our library’s collection also includes Indiana’s 1853 legislative enactments, written not only in English, but also in German, as that was the native tongue of many Hoosiers at that time. Interestingly, our leaders also had the 1851 Constitution printed in German as well as English. Today, the vast majority of cases involve English-speaking litigants. But we did have more than 14,000 cases last year where a person appeared in court with limited to no English proficiency or was deaf or hearing impaired. Marion County Prosecutor Terry Curry recognized this problem and did something about it. He appointed Deputy Prosecutor Lun Pieper as the Burmese outreach director for his office and calls her “an invaluable asset in working with our Burmese population.” As an immigrant who once lived under a military dictatorship where there were no jury trials or plea agreements, Lun brings more than bilingual skills to the courtroom – she understands her clients’ day-to-day challenges and works with families on victim impact panels and crime prevention. Like Lun, South Bend attorney Mark Torma is helping families, specifically those who are trying to navigate the court system without the aid of an attorney. The path to truth and justice can be very difficult for them, which is why volunteer lawyers like Mark are so crucial to fair access to the courts. Many court cases are not constitutional issues or complex business disputes; they are everyday matters. Mark recently helped a family avoid a housing crisis by resolving a $200 monthly utility bill dispute. This may not seem like much, but it can be devastating to a family living paycheck to paycheck. This past year, the Court created a Coalition for Court Access to find solutions to pressing needs like these everyday
disputes. We thank Mark, the Coalition and the 7,200 attorneys who donated more than 220,000 volunteer hours to Hoosiers in need last year. Every day judges struggle to find safe homes for children. Last year they succeeded in changing the lives of almost 4,000 Hoosier children by issuing adoption decrees, thereby giving these children
a stable “forever family.” Our judiciary joins in your commitment to have Indiana shine as the most adoptionfriendly state in the country. Adoption Day is celebrated across the state with community partners like the Great Kids Make Great Communities program in Allen County.
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People are at the heart of our work
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STATE OF THE JUDICIARY Continued from page 15 Judge Charlie Pratt depends on his Family Court administrator, Nancy Springer, to coordinate their Adoption Day festivities. To promote adoptions, Nancy channeled her inner MTV spirit to help create Allen County’s own music video that tells the story of an adoption! Capturing the smiling faces of those children is one of the happiest days of the year in court. Nancy and coordinators like her who help children find a home deserve our thanks. In stark contrast, last year alone almost 18,000 children entered the child welfare system, a 23 percent increase in what we call CHINS cases or Child In Need of Services cases. To be clear, these are not cases of juvenile delinquency, where the child has broken the law. These are cases of abuse and neglect, where a child’s parent has been dealing meth or is in jail for battery or – with frightening frequency – where an innocent baby is brought into the world addicted to drugs. The courts could not help these children without dedicated partners. One of those partners is Tippecanoe County Prosecutor Pat Harrington, who is confronting a terrible reality: children in his community who have been sexually trafficked. Prosecutor Harrington attended a national summit and came back inspired to effect real change for these children. He is partnering with the faith community and establishing a residential shelter to help them heal.
His innovative approach is possible thanks in part to your legislation, which ensures these children are part of the child welfare system and not treated as criminal cases. Thank you, Prosecutor Harrington and lawmakers, for your wisdom in making this distinction. Praise also goes to our 3,400 Court Appointed Special Advocates. CASAs serve as front-line advocates for thousands of children who need a voice in court. Judge Stephen Galvin of Monroe County turned to CASA Gary Friedman to be that “voice” for an 8-year-old girl named Kadi. Kadi began life in need of a liver transplant and with birth parents who could not care for her. Thanks to Gary and Kadi’s adoptive parents, Mark and Donna Kingsbury, Kadi now focuses on important 8-yearold matters like swimming and drawing. Indiana’s judiciary depends on caring CASAs like Gary. While those judicial partners help children, others help Hoosiers later in life. For example, Owen County’s Volunteer Guardianship Program, one of 29 across our state, serves vulnerable seniors. Judge Lori Quillen knows this program is crucial to preserving the well-being of seniors in need – seniors like 68-year-old Sue. Sue suffered a stroke, leaving her unable to care for herself. As if that was not enough, family members were stealing money and medications from her. Heather Donovan,
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her court-appointed guardian, ensured that Sue’s final days on this earth were spent in the safety of her home, complete with assisted care, occupational therapy and delivered meals. Heather, we applaud your service. This volunteer program was made possible in part because local banks identified a need to prevent elderly Hoosiers from having their savings looted by drug-seeking family members. Local banks, churches and community organizations put up the seed money that was matched by the Supreme Court to start this program. In Judge Quillen’s words, “Owen County doesn’t have a lot of money, but we are blessed with people who come together and work for the common good.” This program is just six months old, and already it is a model for others.
Conclusion Yes, we are blessed in Indiana with many good people. Those we have highlighted today on this tour are just a small sample of the extraordinary work and heavy lifting done by our multitude of partners working for justice. The final partner to recognize today is you: the dedicated members of our executive and legislative branches. On behalf of the judicial branch, I thank all of you for supporting the vision of an effective, efficient and fair system of justice. Your partnerships on these many initiatives illustrate your commitment to our state, your dedication to serving our citizens, and most of all your deep desire to ensure the future is bright for all Hoosiers. Thank you, and God bless our state. q
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BENCH & BAR NEWS
Justice Rucker announces spring retirement
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fter 26 years on the bench, Indiana Supreme Court Justice Robert D. Rucker will step down in the spring. He is Indiana’s 105th Supreme Court justice. Rucker said, “It has been an honor to serve Hoosiers for a quarter century.” Chief Justice Loretta Rush describes Justice Rucker as a humble, brilliant and conscientious public servant. She said, “Justice Rucker’s contributions to Indiana’s jurisprudence are remarkable. His legal scholarship is innovative and insightful in applying constitutional values. His body of work stands as a powerful illustration of the guidance courts provide for the peaceful resolution of disputes encompassing nearly every facet of Hoosier life.” Justice Rucker was appointed to the Supreme Court by Gov. Frank O’Bannon in 1999. During his tenure, he has served with eight other justices (Boehm, Shepard, Sullivan, Dickson, David, Massa, Rush and Slaughter). Prior to his Supreme Court appointment, Rucker served on the Indiana Court of Appeals, having been appointed by Gov. Evan Bayh in 1991. While on the Court of Appeals, he served with 23 other judges
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(Sullivan, Hoffman, Robertson, Staton, Buchanan, Garrard, Shields, Miller, Ratliff, Conover, Chezem, Baker, Sharpnack, Barteau, Najam, Friedlander, Riley, Kirsch, Darden, Bailey, May, Robb and Brook). He was the first African American to serve on an Indiana appellate court. During his judicial career, he has authored 1,235 civil and criminal opinions. He has served as vice chair of the Indiana Commission for Continuing Legal Education; a member of the board of directors of the Indiana Trial Lawyers Association; a member of the board of directors of the Northwest Indiana Legal Services Organization; and as chair of the Judicial Council of the National Bar Association. Justice Rucker is married to Dr. Denise Rucker, and they have 17 grandchildren. He was born in Canton, Ga., grew up in Gary, Ind., and is a decorated veteran of the Vietnam War. He graduated from Indiana University (B.A. 1974) and Valparaiso University School of Law (J.D. 1976), and he earned a Master of Laws degree in the judicial process from the University of Virginia Law School (1998). The exact date Justice Rucker will step down from the bench is not yet known. The Judicial Nominating Commission will search for a successor to fill the vacancy; applications for the position are available on the Court’s website at courts.in.gov/jud-qual/3306.htm and are due March 3. q
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To thine title be true: mistitling of the magistrate judge By Ruth Dapper
he United States Magistrate Judge position has roots reaching into the 18th century and was formally created through congressional legislation nearly 50 years ago. In 1990, as the magistrate judge role was modified and expanded, Congress passed legislation modifying the position’s title from United States Magistrate to United States Magistrate Judge. Despite the passage of a quarter century since the title change, the judicial position continues to be incompletely referred to as “magistrate.” This article explores the prevalence of the titling error in an effort to promote the accurate reference to magistrate judges.
Creation of the magistrate judge The magistrate judge is the result of congressional action under Article I of the Constitution of the United States, rather than authority provided in Article III. Even so, magistrate judges are not a separate court, and instead serve in the United States District Court, along with district judges. Magistrate judges are appointed by each district’s judges for eight-year terms and require reappointment, unlike some other federal judges who enjoy lifetime tenure. Although forms of the magistrate judge have existed for many years, it was the Federal Magistrates Act of 1968 that created “a new class of federal judicial officers” to relieve the caseloads of U.S. District Courts. Magistrate judge duties depend on each district’s needs, with magistrate judges handling duties ranging from criminal initial appearances, detention hearings and arraignments to civil settlement conferences, discovery motions and consent jury trials. Dispositive matters may also be “referred” by a district judge for the preparation of a “report and recommendation” by a magistrate judge. The number of full-time 20
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magistrate judge positions has increased greatly over the years, and there are now 536 full-time and 34 part-time magistrate judge positions. The Supreme Court recently remarked: “[I]t is no exaggeration to say that without the distinguished service of [magistrate judges], the work of the federal court system would grind nearly to a halt.”
judge” has been the title longer than “magistrate” was. The Federal Magistrate Judges Association continues to advocate for use of the proper title as well as address the misconception that magistrate judges and district judges sit in separate courts.
Mistitling of the magistrate judge
With the unanimity of the statutes and rules, one might assume courts would be equally consistent in their use of the modified magistrate judge title. However, opinions of the Supreme Court of the United States have misstated the CHANGE OF NAME title of the magistrate judge several times. OF U.S. MAGISTRATES An opinion from 2006, for example, After the enactment of this Act, each United described the underlying federal district States magistrate appointed under section court proceedings by noting the court 631 of title 28, United States Code, shall be “assigned the case to a Magistrate who known as a United States magistrate judge, conducted discovery.” The opinion conand any reference to any United States magistrate or magistrate that is contained in title tinued by discussing what “the Magistrate 28, United States Code, in any other Federal recommended” and that the district judge “accepted the Magistrate’s recommenstatute, or in any regulation of any departdation.” Some mentions of “magistrate” ment or agency of the United States in the executive branch that was issued before the may be understandable because they enactment of this Act, shall be deemed to do not identify a U.S. Magistrate Judge refer to a United States magistrate judge but instead refer to a neutral magistrate, appointed under section 631 of title 28, state proceeding or foreign tribunal. Even United States Code. removing these instances from considerFollowing the title change, the United ation, numerous judicial opinions issued well after the passage of the 1990 Act States Code was modified to reflect the reference “the Magistrate.” At times use “magistrate judge” title throughout. of the truncated title is not a mistake, Federal rules comport with the statutes, but instead is by design. At least two with “a magistrate judge” being included in the definition of “Federal judge” in the recent Supreme Court opinions provide, Federal Rules of Criminal Procedure. The “A Federal Magistrate Judge (Magistrate),” thereby defining the title as “Magistrate” remainder of the criminal Rules, as well and referring to the magistrate judge as the Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure and accordingly for the balance of the text. The Supreme Court is not alone, with Federal Rules of Evidence all include the recent federal court of appeals’ opinions full magistrate judge title throughout, from every federal circuit court includwith numerous Rules including notes to ing instances of similar magistrate judge address the 1990 title change. mistitling. Now more than 25 years since the 1990 legislation, the term “magistrate Initially, magistrate judges were referred to as “magistrates.” In 1990, after years of discussion, the title of the office changed through the Judicial Improvements Act of 1990, which provides:
The widespread use of “magistrate” alone is not limited to judicial opinions, and is prevalent in secondary sources as well. This is true despite magistrate judges receiving considerably less discussion in scholarship than federal appellate judges. Instances of mistaken mistitling abound, as do more purposeful instances such as: “For the purposes of this Note, the term ‘judge’ refers to a district judge, appeals court judge, or Supreme Court Justice … . The term ‘magistrate’ refers to a United States magistrate judge ... .” Top-ranked law reviews are not immune to mistitling, with recent publications by the flagship journals of some of the nation’s top law schools printing statements such as, “Like U.S. Magistrates, they are appointed by the judiciary itself, but lack the full protections of … the Article III judiciary.” One published note on objections to magistrate judge rulings identified the Judicial Improvements Act of 1990 as changing the magistrate judge title, but continued to reference “magistrates.” Perhaps unsurprisingly considering the other cited sources, Westlaw includes a “key number” entry entitled “United States Magistrates.”
dation prepared by a magistrate judge but referred to the magistrate judge by her last name alone. The district judge evaluating the objection noted, “[T]his Court cannot recall reading a motion, brief, or other paper – even from the most hapless of pro se litigants – that referred to a federal magistrate judge by her last name only. No one does this because it
service) in order to be a “magistrate.” Another magistrate judge reports a litigant asked him if he was training to be a real judge. There have even been instances when litigants have referred to a magistrate judge by last name only. In one i nstance, attorneys from “three prestigious firms,” attempting to skirt local word count rules, responded to an objection to a report and recommen-
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Instances of the mistitling are plentiful in practice as well. Recognizing the importance of referring to a judge by his or her proper title, some courts have taken it upon themselves to educate parties. One order by a district judge provided:
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Unaccountably, the rest of defendant’s brief incompletely and incorrectly refers to “Magistrate Margolis” or “the Magistrate.” One is constrained to wonder whether the United States Attorney’s office is either unaware of, or chose in this case to disregard out of pique, [the Judicial Improvements Act of 1990]. Twenty-two years should be sufficient time for the denizens of a United States Attorney’s office to learn the legally correct way to refer to a Magistrate Judge, a judicial officer sensible attorneys routinely address as “Judge.” Throughout this Ruling I will respectfully refer to “Judge Margolis.”
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In another instance, a magistrate judge who left the state bench to join the federal bench recalls an attorney asking her why she “gave up being a judge” (presumably referencing her state court
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MISTITLING MAGISTRATE JUDGES Continued from page 21 is disrespectful to the magistrate judge.” Although not as extreme as removing the title altogether, referring to a magistrate judge by the wrong title is no less inaccurate or disrespectful to the position.
Why this matters This article is not an indictment of any court, publication or person. Instead, it is intended as a wake-up call. When magistrate judges, empowered through an act of Congress and serving a court created by Article III, are repeatedly addressed incorrectly by their colleagues, the inaccuracy reflects poorly on the judiciary. When practitioners and scholars make the same omission, it reflects poorly on the profession. Admittedly, in light of the weighty issues presented to the courts each day, the title of any judicial officer is not paramount. But the legal profession is built on the premise words matter. The value of words carries with it the value
of titles. Using “magistrate” to refer to a magistrate judge artificially removes these judicial officers from their post in the judiciary. The change of the magistrate judge title was made to educate litigants about the magistrate judges’ status as judicial officers. Decades have passed since the title change, and it is time for a more uniform change in the language of those trained in the law. q Ruth Dapper is a litigation attorney in the San Diego office of Littler Mendelson P.C., having previously served as a federal judicial clerk. This article is modified from a law review article published in the Federal Courts Law Review, which contains citations to the publications discussed herein. See Ruth Dapper, “A Judge by Any Other Name? Mistitling of the United States Magistrate Judge,” 9 Fed. Cts. L. Rev. 1 (2015), available at http://www.fclr.org/ fclr/ articles/pdf/Dapper_Final_Publication2_ Vol9_Issue2.pdf.
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2016: the year in lawyer discipline By Donald R. Lundberg and Caitlin S. Schroeder
e have occasionally reported on the annual work of the Disciplinary Commission. Herewith, a report on the Commission’s 2016 work as reflected in reported decisions and orders.
By the numbers Fifty-seven orders or per curiam opinions pertaining to lawyer regulation were issued by the Supreme Court in calendar year 2016. Thirty-two of the cases were final dispositions of actions brought by the Disciplinary Commission. (One lawyer was disciplined twice in the same calendar year.) Of the 32 cases, 13 were decided by the Supreme Court’s approval of agreements between the Commission
and the respondent. Five cases were final dispositions of disciplinary cases when the Court accepted the respondents’ resignations from the bar. Nine cases were disciplinary cases decided after a hearing before a Court-appointed hearing officer. Of those nine cases, eight resulted in a final order of discipline, and one resulted in a finding for the respondent and dismissal of the charges. By sanction ordered, there were four disbarments, five resignations, eight suspensions without automatic reinstatement, three suspensions with some time actively served and additional time on probation, five suspensions with automatic reinstatement, and two public reprimands. Private reprimands and
private administrative admonitions are not reported. Three of the 32 lawyers were disciplined on a reciprocal basis after having been disciplined first in another jurisdiction. According to the rule governing reciprocal suspension, Admission & Discipline Rule 23(20) (Section 28 before Jan. 1, 2017), when a lawyer is disciplined by suspension, disbarment or the like in another jurisdiction, Indiana will initiate a show cause proceeding, and absent a showing of good cause to the contrary, the Supreme Court will suspend the lawyer indefinitely and until he or she is reinstated first in the originating jurisdiction. The reciprocal discipline rule’s application ran into a snag in the Rippy case. The respondent was suspended for 18 months in Texas, but the entire 18-month suspension was stayed with probation. Initially, our Court suspended the respondent indefinitely with leave to move for reinstatement after being reinstated in Texas. The respondent pointed out to the Court that he was never required to serve any actual suspension time in Texas. Accordingly, the Court amended its order and suspended the respondent for a period of 18 months, stayed on the condition that he successfully complete his Texas probation. Two lawyers were suspended for disability.
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One lawyer who had been conditionally admitted to practice by the Board of Law Examiners had his conditional admission revoked for violating the terms of his conditional admission when he was involved in a vehicle crash while intoxicated. He is not eligible to seek readmission for 18 months. There were also several orders of interim suspension. Eight lawyers were suspended for non-cooperation, and two lawyers were each the subject of
two separate orders of suspension for non-cooperation, for a total of 10 such orders. Five lawyers were suspended indefinitely for failing to cooperate for over six months after having been suspended on an interim basis for non-cooperation.
matic reinstatement. The Court found the respondent violated Rules 8.1(a) (false statement of material fact to the Board of Law Examiners) and 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation).
Two lawyers were suspended on an interim basis for having been found guilty of crimes punishable as a felony. Four lawyers were suspended for failure to pay costs assessed in previous discipline cases, with three of the four later reinstated after paying their costs.
The Rule 8.4(c) violation is an interesting one, since the act of dishonesty occurred before the respondent was admitted to practice and the Rules of Professional Conduct applied to him. It would normally seem that of all the Rules of Professional Conduct, only Rule 8.1(a) reaches back to conduct that predates admission to the bar. A similar issue arose several years ago in Matter of Conn, 715 N.E.2d 379 (Ind. 1999), where the respondent’s illegal conduct occurred during law school. The Court had this to say: “Although the respondent’s illegal conduct occurred before he became a lawyer, the respondent and the Commission stipulate that this Court has jurisdiction over the 8.4(b) violation by virtue of its inherent
Four lawyers were held in contempt for continuing to practice law or hold themselves out as lawyers after being suspended. Three of them were fined, and one of them, in Lehman, was disbarred as a contempt sanction. One lawyer was reinstated after a past suspension without automatic reinstatement. But just barely. Justices Dickson and David voted to deny reinstatement.
constitutional authority over the discipline and disbarment of those admitted to practice law in this state. See Ind. Const., art. VII, section 4.” Id. at 381, n. 3. This is not an entirely convincing rationale for why the Rules of Professional Conduct other than 8.1 cover pre-admission conduct. Bean. The respondent was disbarred after a contested hearing before a hearing officer. In a per curiam opinion, the Court described the respondent’s conduct as involving the theft as clerk-treasurer of more than $20,000 from the Town of Warren Park, for which he was convicted of two Class D felonies. The Court commented on its history of treating harshly dishonest conduct by lawyers who are public officials. The Court also alluded to the respondent’s gambling addiction and his efforts to address it, but that was not enough to save him from disbarment for violating Rule 8.4(b).
(continued on page 27)
Summary of cases Starting from most to least severe discipline, based on length of executed suspension, what follows is a summary of the public discipline cases decided by the Court in 2016. Cases decided by private reprimand or private administrative admonition are not publicly available. Slip opinions of these cases are available online at www.in.gov/judiciary/4730.htm. Bratcher. The respondent received a citation in Wisconsin during law school for retail theft. He did not contest the matter, and a default judgment was entered against him. Later, on his Illinois and Indiana bar applications, he falsely described the incident as a “skit” with no criminal intent. He eventually corrected his position after he was confronted by the Illinois authorities with the police report of the incident and was apparently not able to gain admission in Illinois. He was admitted in Indiana, so the matter was handled as a lawyer discipline proceeding. The Court accepted an agreement of the parties suspending the respondent for 18 months without autoRES GESTÆ • JANUARY/FEBRUARY 2017
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ETHICS CURBSTONE Continued from page 25 Durham. The respondent was convicted in federal court of 12 felony counts of securities and wire fraud, two of which were reversed on appeal, having deprived thousands of victims of more than $200 million. He was ultimately sentenced to 50 years in prison. In this per curiam opinion, after a contested hearing before a hearing officer, the Court found that the respondent violated Rules 8.4(b) and 8.4(c) and ordered that he should be disbarred. Johnson. This was a seven-count complaint that was decided on the allegations of the complaint having been taken as true because the respondent failed to file a timely answer. The case is chocka-block full of conduct that violated the Rules of Professional Conduct. In particular, without specifying to which of the counts the various rule violations relate, the per curiam opinion held that respondent violated Rules of Professional Conduct 1.1, 1.3, 1.4(a), 1.4(b), 1.5(a), 1.5(e), 1.15(a), 1.15(d), 1.16(d), 8.1(a), 8.1(b), 8.4(b) and 8.4(c) and Admission & Discipline Rule 23, Sections 29(a)(2), (3), (4) and (5). On top of those rule violations, the Court appears to have accepted the hearing officer’s findings of multiple aggravating circumstances: (1) multiple occasions of failing to cooperate with the Commission; (2) acting with a dishonest or selfish motive; (3) committing multiple acts of misconduct; (4) failing to participate in the disciplinary process; (5) making false statements to the Commission; (6) refusing to acknowledge the wrongful nature of his conduct; and (7) making no effort at restitution. For this the respondent was disbarred. Justice David dissented only from the sanction, believing a more severe, but unspecified, sanction was in order. White. In this per curiam opinion, decided on the basis of an agreement between the parties, discipline was based on the respondent having been charged with seven felonies, convicted by a jury of six, and having three counts affirmed on appeal. White v. State, 25 N.E.3d 107 (Ind. Ct. App. 2014). The Court accepted
an agreement that the Respondent violated Rules 8.4(b) and 8.4(c). The Court considered factors in aggravation that the Respondent’s conduct was illegal and dishonest and that he acted out of selfish motives. The first two aggravating factors are unusual because the underlying rule violations required illegal conduct and dishonesty. The Court did not explain how those same considerations should also be considered factors in aggravation. Mitigating factors were a lack of prior discipline and repayment of the amounts that were the subject of a theft conviction. The Court noted its history of responding harshly to serious attorney misconduct by lawyers who are public officials. In ordering a two-year suspension without automatic reinstatement, the Court noted that the Respondent had already been suspended for more than four years on an interim basis after he was first convicted. Westerfield. This four-count case was decided by per curiam opinion after a contested hearing before a hearing officer. The respondent was an Indiana
lawyer residing in Florida, where she was not admitted to practice. In Count 1, the respondent associated with a non-lawyer in Florida to advertise quiet title actions as a strategy for getting leverage against mortgage holders. The clients paid flat fees via a series of post-dated monthly installment checks. She initially purported to conduct her practice from her law firm in Indianapolis, but later registered her firm as a Florida LLC and entered into partnership agreements with various Florida lawyers, retaining 90 percent of the profits from fees billed to Florida clients. The partnership agreements did not comply with Florida law governing operation of an interstate law firm. When she closed her Florida firm, she promised her clients their cases would be handled by another lawyer, who soon decided to stop working on cases referred to him by the respondent. Counts 2 through 4 were similar to each other. In each instance a client was signed up for the respondent by a
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ETHICS CURBSTONE Continued from page 27 non-lawyer marketing representative. Thereafter, the respondent’s firm did little work on the clients’ cases. When the clients sought fee refunds, the respondent failed to give refunds in two cases and only a partial refund in another. One interesting thing about this case is that the Court used the choice-of-law provision in Rule of Professional Conduct 8.5 and applied the Florida Rules of Professional Conduct as the law of the case. The Court concluded that the respondent violated Florida Rules 4-1.5(a) (charging and collecting a fee from employment obtained through prohibited solicitation), 4-1.16(d) (failure to refund unearned fees), 4-5.5(a) (engaging in the unauthorized practice of law), 4-5.5(b)(1) (establishing a Florida office to practice law without being licensed in Florida) and 4-7.18(a)(1) (improperly soliciting legal employment). The Court considered as aggravating factors past discipline, previous non-cooperation with a disciplinary investigation, disingenuous and evasive testimony, and fee agreements that also gave her a 50 percent contingency fee, secured by liens on client property, on any reductions in mortgage principal that she achieved. The respondent was suspended
for 18 months without automatic reinstatement. Justice David dissented from the sanction, believing a more severe, but unspecified, sanction was in order. Kern. This was a three-count case. The counts were generally similar in that the respondent took flat fees, then failed to take action or communicate with his clients. He did not refund any of the fees when his clients demanded refunds. He was not cooperative with the Disciplinary Commission. The Court found that the respondent violated Rules 1.3, 1.4(a), 1.16(d) and 8.1(b). The Court suspended the respondent for one year without automatic reinstatement. There was no discussion of aggravating or mitigating circumstances. Justice David dissented from the sanction, believing the respondent should have been disbarred. Fairchild. The respondent brought a legal malpractice action by filing a proposed complaint with the Department of Insurance. He did not make a timely submission to the Medical Review Panel or respond to the chairperson’s inquiries. The respondent did not communicate with his client about the matter. After the case was dismissed for failure to
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RES GESTÆ • JANUARY/FEBRUARY 2017
prosecute, the respondent did not inform his client, who learned about it through another lawyer. The Court accepted the parties’ agreement that the respondent should be suspended for 180 days without automatic reinstatement. The Rule violations were 1.3, 1.4(a)(3) and 1.4(a)(4). The Court did not comment on aggravating or mitigating factors. Potthast. The respondent was convicted of OWI as a level 6 felony due to a prior conviction within five years. She had been disciplined before for an OWI conviction, and the more recent conviction resulted in a revocation of her disciplinary probation to a term of suspension without automatic reinstatement. The Court accepted an agreement for a 90-day suspension without automatic reinstatement. The Rule violation was of 8.4(b). The Court did not discuss aggravating or mitigating circumstances. Yudkin. After a contested hearing before a hearing officer, the Court suspended the respondent for 90 days without automatic reinstatement. The respondent represented a bank in small claims court against a pro se litigant. The pro se party filed a Motion to Correct Error on April 29, 2013, which was entered on the CCS on May 2, 2013. Relying upon the date of entry on the CCS, rather than the filing date, the respondent filed numerous documents before the trial and appellate courts, claiming that the Motion to Correct Error was untimely. Based on the respondent’s arguments, both the trial court and Court of Appeals found the Motion to Correct Error to be untimely. Later, after the Court of Appeals granted rehearing, reversed the trial court judgment and held that the bank’s case was time barred, the pro se party then hired counsel to evaluate a potential claim against the respondent. The respondent demanded that new opposing counsel retract the assertion that he had misled the courts. When that did not succeed, the respondent filed a defamation case in federal court against the opposing party and counsel, seeking more than $500,000 in damages. The federal district court
dismissed the case. In his response to the Commission, the respondent selectively quoted Trial Rule 59(C) to make it seem that the Motion to Correct Error was untimely. The Court held that the respondent violated Rules 3.1, 3.3(a) (1) and 8.4(c). The Court suspended the respondent for 90 days without automatic reinstatement. There was no discussion of aggravating or mitigating factors.
balance stayed conditioned upon compliance with certain terms of probation for two years. The terms of probation require monitoring by JLAP and refraining from any violations of criminal law or the Rules of Professional Conduct. The violations were Rules 8.4(b), 8.4(d) and Admission & Discipline Rule 22 (the Oath of Attorneys). There was no discussion of aggravating and mitigating factors.
Caughey. The respondent was convicted of OWI, a Level 6 felony, entered alternatively as an A misdemeanor. He had a previous conviction in the past five years. The respondent had violated his criminal probation twice. After the first violation, the court modified his terms of probation. After the second violation, the court revoked his probation, sentenced him to five days in jail, and then terminated his probation after serving the jail sentence. This conduct violated Rule 8.4(b). The Court accepted the parties’ agreement that the respondent should be suspended for two years and 90 days, with 90 days actively served and the balance stayed conditioned on compliance with certain terms of probation for the remaining two years. The terms of probation require the respondent to refrain from alcohol consumption, continue to use a remote alcohol-sensing device, continue with regular counseling, and not incur any new criminal convictions. It is interesting that the Court did not require the respondent to be monitored by the JLAP program during his term of probation. The respondent was suspended earlier on an interim basis due to his conviction of a crime punishable as a felony. There was no discussion of aggravating and mitigating factors.
An interesting aspect of the Robertson case is that the Respondent was charged with violating the Oath of Attorneys, presumably the portion of the oath where he swore to abstain from offensive personality. This is not unprecedented, but it is very rare. We wrote about the Oath of Attorneys last year and another case that invoked it as a basis for discipline. “‘I Swear or Affirm’: What’s in an Oath?” Vol. 59, No. 6 Res Gestae 22 (January/February 2016). Read the Oath of Attorneys sometime (you should do it frequently). It might scare you to realize
that you could be disciplined for violating it. Lundberg has commented before on the risks of using a nebulous standard like conduct prejudicial to the administration of justice to address conduct that is generally unlikeable. “Wandering Through the Back Alleyways of Rule 8.4(d): What is Conduct Prejudicial to the Administration of Justice?” Vol. 58, No. 7 Res Gestae 26 (March 2015). Those risks go on steroids when the standard is as vague as refraining from exhibiting offensive personality. Fontanez. The respondent regularly commingled his own personal funds with client funds in his trust account. He made several disbursements and cash withdrawals from his trust account for personal purposes and made some withdrawals without a written withdrawal authorization. Finally, he did not use contemporaneous individual client
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Robertson. The respondent appeared in court under the influence of alcohol and repeatedly sexually harassed the court’s receptionist. The respondent was held in contempt and also charged with several crimes, eventually pleading guilty to a Class A misdemeanor OWI. After a contested hearing before a hearing officer, the Court ordered a one-year suspension, with 90 days actively served and the RES GESTÆ • JANUARY/FEBRUARY 2017
ETHICS CURBSTONE Continued from page 29 ledgers for client funds in trust. How- ever, the respondent did not invade client funds for his own purposes. The Court accepted the parties’ agreement that the respondent should be suspended for six months, with two months actively served and the balance stayed conditioned on compliance with certain terms of probation for two years. The terms of probation included the requirement that he retain a CPA to evaluate and report quarterly to the Commission on the respondent’s trust account management practices. The Rule violations were 1.15(a) and several provisions of Admission & Discipline Rule 23, section 29, dealing with trust account management, including Sec. 29(a)(2), (3), (4) and (5). The Court noted the respondent’s prior discipline (a public reprimand earlier in 2016) as an aggravating circumstance and mentioned his immediate acknowledgement of wrongdoing and attendance at a trust account CLE program as factors in mitigation.
Campanella. In Count 1, the respondent obtained a default judgment in the amount of $6,000 for a client in small claims court even though the complaint prayed for $1,800 plus attorney fees. After the default judgment was set aside and the case was tried, the judgment was for $1,800 plus costs. The Commission charged the respondent with violations of Rules 1.1, 3.1, 3.3(a)(1) and 8.4(d). The hearing officer found only a violation of Rule 8.4(d). Both the Commission and the respondent filed petitions for review. In Count 2, the respondent sued a car dealer and Chrysler, alleging that her client’s ex-husband traded in a car on which she was a titled owner without her consent. She was sanctioned for failing to comply with discovery. The court granted Chrysler summary judgment and the car dealer partial summary judgment. The respondent appealed and then made a settlement demand for $200,000 and threatened Chrysler’s counsel with a
Expertise + Passion = Results Estate & Trust Litigation & Mediation Brian C. Hewitt, Esquire Alerding Castor Hewitt, LLP Indianapolis & Greenwood 317-829-1910 email@example.com } 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
disciplinary grievance unless the demand was met. The appeal was dismissed as to the car dealer because there was no final judgment in the trial court. The Court of Appeals affirmed Chrysler’s summary judgment. The Commission charged the respondent in Count 2 with violating Rules 1.1, 3.1, 3.4(d) and 8.4(d). The hearing officer found violations of Rules 1.1 and 8.4(d). The respondent did not petition for review, but the Commission did. On Court review from the hearing officer’s recommendation, the Court noted that its review is de novo, although there is deference given to hearing officer findings based on credibility determinations and other factors. The Court accepted the hearing officer’s recommendation that the respondent violated only Rule 8.4(d) in Count 1 and Rules 1.1 and 8.4(d) in Count 2. The Court suspended the respondent for 30 days without automatic reinstatement. Also, in a rare, if not unprecedented move, the Court assessed only half of the costs and expenses of the case to the respondent. This case is an example of one that, in our opinion, deserves a more detailed and nuanced discussion via a per curiam opinion. It has all the markings of a good teaching case for the bar at-large. The case was tried as a contested matter, and both parties petitioned the Supreme Court for review of the hearing officer’s recommendation. Thus, the issues would have been fully developed and appear to be ones that many lawyers could face. It doesn’t require much explanation to understand why Tim Durham was disbarred, yet there was a per curiam opinion issued in his case and none here. Lawyer discipline cases are made public for a number of reasons, one of which is to be instructive to the bar. One’s reaction after reading this opinion is to want to know more. Deen-Bacchus. In Count 1, the respondent appeared in an infraction case for a client but failed to notify the client
(continued on page 32) 30
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Your Case Ends Here. Introducing Scott Law Office and Mediation Center Over the past 23 years, Mark Scott has distinguished himself as a tort litigator and scholar, and he’s earned the respect of his colleagues in and out of the courtroom. He has been a frequent author and lecturer on subjects involving tort law, civil procedure and evidence. For many years he presented the Indiana Tort Law Update at ICLEF and ITLA, and he also served as the chair of ITLA’s Amicus Committee. In 2004 he was a recipient of ITLA’s Trial Lawyer of the Year award, and in 2012-13, he served as the President of ITLA. Mark Scott is a lawyer’s lawyer who frequently gets calls from other attorneys when they have an unusual legal issue arise, or when they need a candid evaluation of a difficult claim. And now, Mr. Scott is pleased to introduce Scott Law Office and Mediation Center, where he offers his services as a mediator for tort cases involving personal injury, wrongful death and medical malpractice. A registered civil mediator since 2004, Mr. Scott is highly sought by plaintiff and defense counsel for his keen academic understanding of the legal issues, his ability to relate to plaintiffs and help them understand the strengths and weaknesses of their claims, his thoughtful and frank evaluations of liability and value, and his neutrality and fairness. Take the first step toward resolving your case by scheduling a mediation with Mr. Scott at his newly renovated Mediation Center in Kokomo, or alternatively, Mr. Scott will travel and bring his mediation services directly to you. It’s your case. Choose your mediator wisely.
Scott Law office and Mediation center 122 North Main Street, P.O. Box 805 Kokomo, IN 46903-0805 (765) 459-0751 www.indianatortlaw.com
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ETHICS CURBSTONE Continued from page 30 of a hearing and also failed to appear at the hearing. This resulted in a warrant being issued for her client. In response to the client’s grievance, the respondent falsely asserted that the grievant had never been her client. In Count 2, the respondent mishandled an adoption case by failing to take action in a competing adoption case brought by the children’s foster parents. The Court accepted the parties’ agreement for a 90-day suspension with automatic reinstatement. The Rule violations were 1.1, 1.3, 1.4(a)(3), 1.4(b) and 8.1(a). No aggravating factors were cited. Mitigating factors were lack of experience in the practice area and no prior discipline. Layson. The respondent failed to respond to notice of a grievance and comply with a Commission subpoena duces tecum. The Court accepted the parties’ agreement that the respondent violated Rule 8.1(b) and should be suspended
T O CIA
for 60 days with automatic reinstate- ment. Aggravating factors were (1) prior discipline, including discipline for similar misconduct; (2) failure to respond to discovery in the instant case; and (3) substantial experience (almost 45 years) in the practice of law. In mitigation, the parties cited the respondent’s admission to the allegations in the complaint. Shoaf. In three public defender appeals, the respondent failed to prosecute the appeals, and in two of them, he invoiced and received partial payment from the county. And in two of them, he did not notify the defendants that their appeals had been dismissed. In response to a client inquiry in the third appeal, he explained the dismissal as a “technicality.” The parties’ agreement, accepted by the Court, was that the respondent violated Rules 1.3, 1.4(a)(3) and 1.4(b), and that he should be suspended for 60 days with automatic reinstatement.
No factors in aggravation or mitigation were discussed. Hanson. The respondent sent a threatening and obscene private social media message to a client’s ex-husband. Unfortunately, the order of discipline did not describe the message so that the rest of us know what to avoid when we communicate with an opposing party. The agreed violations were of Rules 4.1 and 8.4(d). The Court accepted the parties’ agreement that the respondent should be suspended for 30 days with automatic reinstatement. Mitigating factors included lack of prior discipline, cooperation with the Commission and remorse. No factors in aggravation were cited. Welke. The respondent promoted his bankruptcy practice by making certain statements on his website and in the Yellow Pages: (1) “Screwing Banks Since 1992”; (2) “Keep your property”;
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RES GESTÆ • JANUARY/FEBRUARY 2017
(3) “Stop wage garnishments”; (4) “Stop home foreclosure”; and (5) “Stop vehicle repossession.” The agreed violation was of Rule 7.1 (making false and misleading communications about the lawyer’s services, including omitting facts necessary to make a statement considered as a whole not materially misleading). The Court accepted the parties’ agreement that the respondent should be suspended for 30 days with automatic reinstatement. No aggravating factors were cited by the parties, but the Court found one on its own – previous discipline. Mitigating factors included cooperation with the Commission, removal of the offending statements, remorse and a promise not to use such language in the future. Like many advertising cases decided by a brief order, this one leaves the reader wanting to know more about the case and why his advertising was met with a relatively harsh sanction. It would be interesting to know the Court’s analysis of why “Screwing Banks Since 1992” is false or misleading. Undignified advertising (if it is that) is not a sufficient state interest to justify suppression. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 648 (1985). The other statements, made without qualification, about what can be achieved by a consumer bankruptcy are likely an example of lawyer advertising not saying enough. Keeping one’s house and car are possible outcomes in some, but not all, bankruptcies. This point was made 15 years ago by the Court, but it would be helpful for lawyers to be reminded why these particular advertising statements violated Rule 7.1. See Matter of Anonymous, 775 N.E.2d 1094 (Ind. 2002). Fontanez. The respondent failed to follow various procedural requirements and otherwise did not act diligently in a case after it was removed from state to federal court. He also did not keep his client informed about the case. A public reprimand was based on an agreed disposition. The parties’ agreed rule violations were Rules 1.1, 1.3 and 1.4(a). There were
no aggravating factors. In mitigation, the Court noted the absence of previous discipline (although he was disciplined a second time later in 2016, as described above); the respondent’s cooperation in the discipline process; personal distractions caused by a prolonged custody dispute; encouragement of the client to consult with a legal malpractice lawyer; and attendance at CLE programs to improve his practice management and skills. Schlesinger. The respondent appealed several criminal convictions, citing an outdated standard for appellate review of sentences. The parties agreed that the respondent violated Rules 1.1 and 8.4(d). The Court accepted an agreement for a public reprimand. The Court did not mention any aggravating or mitigating factors.
Some general observations Most of the cases decided by the Court, whether on agreement of the parties or after a contested hearing, were decided with fairly brief orders (rarely longer than two pages, often little more than a page) finding misconduct and imposing discipline. The Court issued lengthier (and more informative) per curiam opinions in only seven cases. Four of them reported the results of disbarment cases (one, Lehman, as a sanction for contempt). The facts in disbarment cases are typically so extreme that the lengthier exposition of the issues in a per curiam opinion does little to educate the many members of the bar who never even think about engaging in that type of misconduct. The most instructive per curiam opinion was in a case that resulted in a dismissal because the Commission failed to prove misconduct by its clear and convincing evidence standard of proof. This latter case made for very interesting reading, which we will discuss in more detail in a future column. Meanwhile, our wish for 2017 is that the Court will write more expansively on cases involving
conduct that could imperil even conscientious lawyers. Almost all of cases were decided by a unanimous Court. There were no dissents on the merits, but there was an occasional dissent when a justice believed that the Court-ordered sanction was too lenient. With Justice Dickson now gone from the Court, Justice David has emerged as the sole dissenting voice for harsher discipline in certain cases. q Donald R. Lundberg is the principal in Lundberg Legal, a law firm concentrating on representation of lawyers in legal ethics and professional responsibility matters, including defense of lawyer discipline cases. Caitlin S. Schroeder is an attorney with Barnes & Thornburg LLP. She represents attorneys in disciplinary proceedings brought by the Indiana Supreme Court Disciplinary Commission and assists bar applicants before the Indiana Board of Law Examiners. Caitlin also practices in government and business litigation. Donald R. Lundberg Lundberg Legal Indianapolis, Ind. firstname.lastname@example.org
Caitlin S. Schroeder Barnes & Thornburg LLP Indianapolis, Ind. email@example.com
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COMING SOON We want to ensure that you can communicate with, ask questions of and seek guidance from your colleagues in a convenient, easy-to-use fashion. In March 2015, the State Bar launched "forums" in place of its electronic discussion lists. While the forums were directly linked to our membership database (a good thing), login requirements to create a new post, among other things, were burdensome. We are excited to announce that soon we will return to email-based discussion lists powered by Higher Logic. The electronic discussion lists are simple, automatic and easy to use. The conversations will simply come to you – no need to remember to visit our website to create and view posts. Similar to what you're used to, the e-discussion list posts are archived, searchable and provide you with the option of receiving posts as a single "digest" email as opposed to receiving multiple emails throughout the day (unless you desire that). Stay tuned for more information about this transition!
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More than 75 percent of consumers today search online to locate and hire legal professionals. And while popular websites like Avvo and LegalZoom exist, meeting face to face with a lawyer remains critically important – which is why the ISBA is proud to announce that it has partnered with Zeekbeek to create a bar-based, lawyer-locator directory. This national directory will be populated through the membership databases of participating state bar associations. The evolution of the directory is guided by the bars of Illinois, Indiana, Michigan and Ohio. The goal of this new ISBA directory is to help consumers find lawyers and allow lawyers to find other legal professionals. As a member of the ISBA, we have already created your profile with the information we have on file. Once launched, you will have the opportunity to expand your profile in the new directory by including a list of practice areas, a customized bio, links to websites, social media accounts, videos, articles and blogs, and much more. In an effort to make this a worthwhile resource for consumers, we’re encouraging you to update and expand your profile. Soon a helpful profile wizard will help walk you through the necessary steps to do so. Your “first impression” is as good as your profile!
• JANUARY/FEBRUARY 2017 RES GESTÆ Stay tuned for more
information about both of these new member benefits. We expect to go live with both in the coming months!
Appellate civil case law update By Maggie L. Smith
n July, the Indiana Supreme Court issued one civil opinion and did not grant transfer in any additional civil cases. The Indiana Court of Appeals issued 22 published civil opinions. The full texts of these opinions are available via Casemaker at www.inbar.org.
SUPREME COURT DECISIONS Supreme Court declared UIM policy requiring insured to bring suit within three years and exhaust all other coverage before bringing suit was ambiguous and, therefore, resolved against insurer The plaintiffs sued the defendant tortfeasor in October 2008 for injuries resulting from a car accident that occurred in August 2007. In December 2009, the plaintiffs put their own insurance carrier, State Farm, on notice that they would likely be filing an underinsured motorist (UIM) claim if the proceeds from the tortfeasor’s insurance were insufficient. In March 2011, the plaintiffs moved to amend the complaint and add a UIM claim against State Farm. State Farm moved for summary judgment on the UIM claim, arguing that it was barred because the policy required an insured to bring suit within three years of any accident. A unanimous Supreme Court in State Farm Mut. Auto. Ins. v. Jakubowicz, 56 N.E.3d 617 (Ind. 2016) (David, J.), found the policy was ambiguous because one provision provided that a UIM claim against State Farm must be brought within three years of the date of the accident, but another provision provided that: “We will pay only if the full amount of all available limits of all bodily injury liability bonds, policies, and self-insurance plans that apply to the insured’s bodily injury have been used up by payment of judgments or settlements, or have been offered to the insured in writing.” The Court resolved the ambiguity against State Farm, finding, “the insured
cannot both exhaust the tortfeasor’s policy limits and file a UIM suit within the three (3) year limitation period.”
SELECTED COURT OF APPEALS DECISIONS • Robertson v. Robertson, 60 N.E.3d 1085 (Ind. Ct. App. 2016) (Pyle, J.) (invoking the Indiana Supreme Court’s decision in In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), the Court of Appeals chose to review the merits of mother’s appeal of modification of custody order even though mother failed to timely file Notice of Appeal relating to modification of custody order). • Fireman’s Fund Ins. Co. v. Ackerman, 56 N.E.3d 1209 (Ind. Ct. App. 2016) (Barnes, J.) (reversing denial of insurer’s summary judgment motion after concluding 2005 statute that eliminated requirement commercial umbrella or
excess liability policies provide UM/UIM coverage applies not only to newly issued policies but also renewal policies; insurer need not obtain written rejection of UM/ UIM coverage or provide consideration for removal of UM/UIM coverage because removal was the “result of a clear statutory enactment”). • City of Indianapolis v. Bentley, 56 N.E.3d 1163 (Ind. Ct. App. 2016) (Baker, J.) (affirming trial court’s order to reinstate police officer to rank of sergeant and provide back pay where City failed to comply with municipal ordinance requiring City to file transcript from merit board hearing within 30 days of receipt of summons and where City also failed to timely file response to officer’s summary judgment motion). q Maggie L. Smith, Indianapolis, is with Frost Brown Todd, firstname.lastname@example.org.
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Data analytics: Hollywood & the practice of law By Sharon D. Nelson and John W. Simek
e are not going to confess how many times we’ve watched Moneyball. It’s embarrassing – and still, when it comes on, we are apt to look at one another, smile and nod in silent agreement – yes, again please. The first time we saw Moneyball, we knew it would crop up in an article. The movie’s use of data analytics in baseball immediately prompted us to start talking about how some of the lessons of Moneyball applied to the legal sector. We promise you that we came up with the title of this article ourselves, but as we began our research, we were shocked at how many others have had the same idea. In fact, a CLE at a legal tech conference last year had a similar name, and several articles on data analytics in the law did, too. So, if you have missed seeing Moneyball, let us set the stage. The book, Moneyball: The Art of Winning an Unfair Game, was written by Michael Lewis and published in 2003. It is about baseball – specifically about the Oakland Athletics and its general manager, Billy Beane. The cash-strapped (and losing) Athletics did not look promising until Beane had an epiphany. Perhaps the conventional wisdom of baseball was wrong. Perhaps data analytics could reveal the best players at the best price that could come together as a winning team. The epiphany, in fact, came from Peter Brand, a genius at analytics brought onboard by Beane. They began to recruit bargain-basement players with game-winning skills. A long way from the law? Not so much.
An introduction to data analytics One of the articles we found was by Owen Byrd, the CEO of Lex Machina – its site is well worth cruising to get some sense of the state of data analytics today. As he said, “We are not far from the day 36
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when player stats in the legal game will be as omnipresent as they are in baseball. In federal intellectual property litigation (and soon other federal subjects), everyone involved in any legal matter – lawyers, opposing parties and judges – is already subject to rigorous statistical analysis, including assessments of strengths and weaknesses and performance rankings.” We are beginning to pick our lawyers with data analytics, predict the outcome in court before a particular judge and assess the probable result of using a particular strategy or argument. Clients will be looking to see the costs involved to get a good result and the costs expended on lawsuits that proved to wag their tails. Settle or litigate? Who is the best attorney (or firm) at the best price point to get the desired result? How many attorneys advertise their losses? How many make themselves sound more familiar with a subject area than they really are? While data analytics is still in its relative infancy, more and more attorneys and law firms will be chosen by in-house counsel and others based on the verifiable realities of their record. When we talk to lawyers about this, most wince. Some lawyers will come off splendidly – but others may find that their record dooms them as a litigator. Worse for those lawyers, this technology, currently fairly expensive, is bound to come down in price and be more accessible to consumers of legal services.
How does data analytics work? It is beyond the scope of this article to explain precisely (and clearly) how analytics works, but basically millions of pages from litigation records are fed into the analytics platform, which arranges them using natural language processing and machine learning. This means you can simply ask who has won the most patent infringement cases in a specific geographic area involving a particular kind of patent
or in front of a particular judge – and bam, you have a near-instantaneous answer. These answers are invaluable maps to those who decide whether to move forward with litigation and with which firm or attorneys. For example, Byrd of Lex Machina cites a case in which a large tech firm wanted alternatives to the large (read expensive) law firms his company had been using. That company now has a list of lower-priced boutique firms, all of which had not previously been in opposition to the company, had experience in the technology involved from other cases, and had a good track record of success. It does sound a lot like Moneyball, doesn’t it? Cheaper players, good skills, part of a winning team.
Moneyball law So, how are lawyers selected today? Maybe they were referred to the client, or the client saw their television ads, billboards, social media posts or website. Maybe they had great offices or were in “top lawyer” lists. Studies have shown that client selection of lawyers by these means have only average results. Law firms do no better. They tend to select their own lawyers based on interviews, considering other highly regarded law firms which had hired them, the pedigree of their law schools or how well they fared in an interview. A study by Premonition LLC, an artificial intelligence company that targets the legal industry, demonstrated that in the U.K. the law firms picked lawyers poorly, based on some of the factors cited above. For the client, what predictor works? According to Toby Unwin, Premonition’s cofounder and CIO, it’s the “win rate” preferably tied to a particular kind of case before a particular judge. It wasn’t an easy road for the company. It discovered that the only things that get tracked in a law firm were an attorney’s wins and billed fees.
While they thought their analytics would find a fertile market in large law firms, they were wrong. “It was a stupid idea,” according to Premonition CEO and cofounder Guy Kurlandski. “It was like interviewing cows, asking them what they thought of McDonalds. You don’t ask the candlemakers what they think about light bulbs.” The company worked hard to perfect how it mined and analyzed court records. Now the system downloads cases in real time as they are filed, analyzing them, creating complicated tables, calculating win rates and assessing differences from judge to judge while looking for attorneys specializing in various case types. Primarily, it looks for “outliers,” litigators with long strings of unbroken wins before particular judges. Kurlandski notes wryly, “Every judge has their favorites.” He also says, “In law you don’t always get what you pay for.” The firm found no correlation between the win rate and billing rate. In fact, it found that the most successful counsel in each court was found at solo or small firms. This defies the traditional wisdom about selecting lawyers. We love this quote from Kurlandski: “Law has long been seen as a Giffen good, an economics term whereby the more a consumer pays for something, the better it is perceived to be.” Analysis of cases in one court showed that statewide firms had a pretty healthy success rate, but three national firms did not. Why do general counsels hire “White Shoe” firms that lose three out of the four times they go to court? The answer seems to be that they simply don’t know because no one keeps score. And perhaps they are covering their backsides by hiring big law firms with big reputations. That is now changing and more quickly than most lawyers realize. Even insurance companies are turning to data analytics, calling it a game changer and saying that employing better litigators means fewer losses, which means lower premiums. Ben Wolkov, CEO of Litigas, has said, “The profession has been able to
escape accountability, but big data is bringing transparency. Picking attorneys by anything other than their win rate no longer makes sense.”
What else can data analytics do? It’s not only about selecting lawyers. Before a demand letter is drafted, attorneys can analyze who caused the harm, who has the deepest pockets and how prospective defendants will react to a claim, which is evidenced by the prior litigation behavior of those defendants. Even if they’ve never been sued before, you can analyze the behavior of similar defendants faced with similar claims. The defendants themselves will use similar analytics to inform their strategic decision-making. Data may show that establishing jurisdiction by a court with a measurable track record favoring plaintiffs with similar claims can have more impact on the outcome than any subsequent tactics. If data informs you that a particular judge in a patent case typically ruled on claim construction solely on the briefs, without holding a hearing, the attorneys will know to include all their arguments in the brief. Why hold anything back for a hearing that will probably never take place? If you know the average length of time of a particular kind of case in a court, that may impact the litigation budget. If you know the average length of trial time, that can impact how you strategically decide to present your case. We were a little nonplussed by the idea that zealous representation in litigation can include using statistical information about opposing counsel. If you know what cases opposing counsel is handling and you have the filing deadlines in those cases, you could serve your discovery requests when that counsel is busiest with other matters. That is not only Moneyball, but it’s hardball. No doubt data analytics will be used in exactly that manner, to the dubious credit of the lawyers employing those tactics. Resistance to data analytics is no doubt futile. Think about the permanency
of data analytics in the legal profession as you read the next section of this article.
Quotables A quote from the book by Michael Lewis: “There was but one question he left unasked, and it vibrated between his lines: If gross miscalculations of a person’s value could occur on a baseball field, before a live audience of 30,000 and a television audience of millions more, what did that say about the measurement of performance in other lines of work? If professional baseball players could be over or undervalued, who couldn’t?” Peter Brand (the data analytics genius played by Jonah Hill) in the movie Moneyball: “People who run ball clubs, they think in terms of buying players. Your goal shouldn’t be to buy players – your goal should be to buy wins.” John Henry (co-owner of the Boston Red Sox) in the movie Moneyball: “Anybody who’s not building a team right and rebuilding it using your model [Billy Beane’s], they’re dinosaurs.” A quote from Billy Beane (played by Brad Pitt) in the movie Moneyball: “Adapt or die.”
Final words Author Nelson did not wish to watch Moneyball, believing the movie to be all about baseball – which puts her to sleep. She was wrong. The movie was all about data – baseball was simply the stage on which data analytics proved its worth. And it presaged one of the most significant developments in the legal sector. We’re still struggling to understand all the implications of data analytics, but we know that they are profound – and law firms that understand and employ them may secure an immediate and long-lasting advantage in a marketplace that is increasingly competitive. Billy Beane was right – adapt or die. Not much of a choice. q The authors are the president and vice president of Sensei Enterprises, Inc., a legal technology, information security and digital forensics firm based in Fairfax, Va., 703/359-0700, www. senseient.com. © 2016 Sensei Enterprises, Inc.
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RES GESTÆ • JANUARY/FEBRUARY 2017
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CRIMINAL JUSTICE NOTES
Home entry, intimidation, other holdings By Jack Kenney
n July, the Indiana Supreme Court decided cases involving third- party consent to home entry and the elements of the intimidation statute. The Court of Appeals issued opinions on Indiana’s feticide statute, detention of motorists under the Seatbelt Enforcement Act, and erroneous probation revocations.
Home entry based on unreasonable belief houseguest had authority to consent In Bradley v. State, 54 N.E.3d 996 (Ind. 2016), the State failed to prove that a person answering the door had actual or apparent authority to consent to police entry into Defendant Timmie Bradley’s home. Acting on an anonymous tip, police were watching people come and go from a suspected drug house. The officers saw one man, Beatty, approach the door and knock. Someone let him inside. Id. at 997. When the officers approached the door and conducted a warrantless “knock and talk,” Beatty opened the door. The police did not know who lived in the house or whether Beatty had any connection to it, but asked him to consent to their entry, which he did. Id. at 997-98. Once inside the house, police smelled burnt marijuana, detained other people who were present, and found drugs and other items as a result of a protective sweep. Bradley arrived home during the police search and was arrested and charged with drug and other offenses. Id. at 998. The fact that Beatty had been to the home on one prior occasion and that he answered the door to the police was insufficient to meet the State’s burden to show he had joint access and control over the home. Id. at 1000-01. Mere “affiliation” with the home, based on having been seen there earlier, is not enough to establish apparent authority to consent. Id. at 1001. Thus, the Court reversed
the denial of Bradley’s motion to suppress all evidence seized in the search of his home.
Conditional language in threat constitutes intimidation To support an intimidation conviction, the State must establish that the defendant made a threat to another person with the intent that the person be placed in fear of retaliation for a prior lawful act. See Ind. Code §35-452-1(a)(2). Prior to the Indiana Supreme Court’s per curiam opinion in Roar v. State, 54 N.E.3d 1001 (Ind. 2016), Indiana appellate cases interpreting this subsection held that anger, conditional language or threats aimed at future action without proof of intent to retaliate is not enough to satisfy the requirements of the statute.1 But Roar appears to reject this interpretation. Victor Roar was convicted of Class A misdemeanor intimidation after an apartment manager left an eviction notice on his sister’s door, and Roar told the manager he would kill her if she came back on the property. Id. at 1001-1002. On appeal, Roar argued that his statement was conditional, not a threat to retaliate for a prior lawful act, because his statement concerned future, rather than past, conduct. Id. at 1002. In a 2-1 opinion, the Court of Appeals concluded that the State presented sufficient evidence that Roar’s threat was made “with the intent … that [the manager] be placed in fear of retaliation for a prior lawful act as required by Ind. Code §35-45-2-1(a).” Id. The Supreme Court agreed with the analysis and result reached by the Court of Appeals majority, which had rejected the contrary “unreasonable” interpretation of the intimidation statute and prior precedent. See Roar v. State, 52 N.E.3d 940, 943 (Ind. Ct. App. 2015), adopted and incorporated by reference, 54 N.E.3d 1001 (Ind. 2016).
Feticide and neglect resulting in death convictions reversed In Patel v. State, 60 N.E.3d 1041 (Ind. Ct. App. 2016), the Court of Appeals held that the legislature did not intend for Indiana’s feticide statute (Ind. Code §3542-1-6) to apply to illegal abortions or to be used to prosecute women trying to end their pregnancies. In this case, Purvi Patel purchased abortion-inducing drugs online and used the drugs to terminate her pregnancy at home. Illegal abortions are governed by provisions regulating abortion in Title 16, not the feticide statute. Id. at 1058 (citing Baird v. State, 604 N.E.2d 1170 (Ind. 1992)). Since the legislature enacted the feticide statute in 1979, it has been used to prosecute third parties who terminate pregnancies by using violence against expectant mothers without their consent. Id. In an “abrupt departure” from earlier cases, the court noted this was the first case “in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion.” Id. Based on the language used in Ind. Code §16-34-2, “the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions.” Id. at 1060. The court also reversed Patel’s conviction for Class A felony neglect of a dependent resulting in death because the State failed to prove even by a preponderance of the evidence that Patel’s failure to provide medical care immediately after the baby’s birth resulted in the baby’s death. Id. at 1052-1055. Patel’s conduct before the birth of her child cannot be considered, and expert testimony establishing the possibility of survival with earlier treatment “falls short of satisfying the State’s burden.” Id. at 1053-54. Thus, the court reversed and remanded with instructions to enter a conviction
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CRIMINAL JUSTICE NOTES Continued from page 39 and sentence for Class D felony neglect of a dependent, as there was sufficient evidence for the jury to find Patel was subjectively aware that her baby was born alive and that she knowingly endangered the baby by not providing any medical care. Id. at 1051-52.
Unlawful detention following seatbelt stop Indiana’s Seatbelt Enforcement Act (Ind. Code §9-19-10-3.1) prohibits investigative behavior during traffic stops for seatbelt violations “unless circumstances arise after the stop that independently provide[s] … reasonable suspicion of other crimes.” See Harris v. State, 60 N.E.3d 1070, 1072 (Ind. Ct. App. 2016) (citing State v. Richardson, 917 N.E.2d 379, 383 (Ind. 2010)).2 In Harris, the Court of Appeals reversed the denial of Lisa Harris’ motion to suppress evidence obtained from a consent search during a seatbelt enforcement stop because the police officer lacked reasonable suspicion justifying inquiry above and beyond the seatbelt violation. While parked outside a gas station, the officer observed the driver and passenger of a passing vehicle were not wearing seatbelts. Id. at 1071. When the officer pulled out of the parking lot to initiate a traffic stop, Harris attempted to evade him by turning abruptly onto an adjacent street. Id. Upon stopping Harris, the officer immediately recognized her name appearing on the National Precursor Log Exchange (NPLEx), which documents purchases or attempted purchases
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RES GESTÆ • JANUARY/FEBRUARY 2017
of over-the-counter medications containing ephedrine and pseudoephedrine. Id. Upon questioning Harris, she appeared “overly excited” and unusually nervous. Id. The officer then confirmed on NPLEx that both Harris and her passenger had made frequent and recent purchases of products containing pseudoephedrine. The officer obtained Harris’ consent to search her vehicle and its contents, and discovered methamphetamine in Harris’ purse. Id. Following the Indiana Supreme Court’s holding in Richardson, the court held that the mere fact that Harris purchased pseudoephedrine nine times in the past year did not provide an independent basis of reasonable suspicion that would justify further detention for a drug investigation. Id. at 1073-76. Harris pulled over when the officer activated his emergency lights, and she produced a valid driver’s license. The officer’s subsequent questioning about Harris’ destination, her recent cold medicine purchase, and whether she would consent to a search violated the Seatbelt Enforcement Act. Id. Judge Najam dissented on the basis that the officer’s immediate recognition of Harris’ name on NPLEx, her post-stop behavior and evasive driving gave rise to reasonable suspicion of ongoing criminal activity. Id. at 1076-80.
Probation revocations reversed The Court of Appeals reversed probation revocations in two cases handed down in July. In May v. State, 58 N.E.3d 204 (Ind. Ct. App. 2016), the trial court ordered Anthony May to return to probation when he completed his sentence. But upon his release, the Department of Correction mistakenly placed May on parole instead of probation. Id. at 205. May complied with the terms of his parole, but violated probation by failing to submit to monthly drug tests. The trial court abused its discretion in revoking May’s probation and ordering execution of his suspended sentence because under the circumstances “it was reasonable for [him] not to report
to probation before his release from parole.” Id. at 207. In the second case, a probationer missed a deadline for reporting to Decatur County Community Corrections because he was receiving inpatient mental health treatment for post-traumatic stress disorder and major depressive order. Sullivan v. State, 56 N.E.3d 1157, 1159 (Ind. Ct. App. 2016). On two separate occasions, the probationer had asked his attorney to contact community corrections about his situation, but the attorney failed to do so. As a result, the trial court revoked probation and ordered execution of the probationer’s entire suspended sentence because he was on “[z]ero tolerance probation.” Id. at 1162. Based on the totality of circumstances, the court found that revocation was an abuse of discretion notwithstanding the “strict compliance” provision of the probationer’s plea agreement. The “very notion that violation of a probationary term will result in revocation no matter the reason is constitutionally suspect.” Id. (quoting Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008)). q 1. See Causey v. State, 45 N.E.3d 1139 (Ind. Ct. App. 2015); C.L. v. State, 2 N.E.3d 798 (Ind. Ct. App. 2014); and Ransley v. State, 850 N.E.2d 443 (Ind. Ct. App. 2006). 2. In 2014, the General Assembly amended Ind. Code §9-19-19-4 to provide the same protection for motorists stopped for window tint violations. Jack Kenney Director of Research & Publications Indiana Public Defender Council Indianapolis, Ind. email@example.com
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RES GESTÆ • JANUARY/FEBRUARY 2017
This article was first published in January/February 2015.
FIT TO PRACTICE
The way we roll: commuting by bike By Judge David J. Dreyer and Donald R. Lundberg
e’ve been year-round bike commuting on a mostly fulltime basis for a number of years. We each commute about 12 miles round trip on city streets, coming from different directions to downtown Indy. Lundberg has the good fortune to have inside bike storage and a shower and place to store work attire at the office. Dreyer has the equally good fortune of having the great Indy Bike Hub right across the street from the City-County Building where he can shower and store his bike inside. The delta between biking and driving from our respective homes to sitting at our desks is about five minutes. So we get 50 minutes or so of solid exercise every day at a net time cost of 10 minutes. What a deal!
It’s good for your body Biking is good exercise. It is much easier on your joints than running. You can easily calibrate your effort to how energetic (or not) you are feeling. We calculate that we burn about 43 calories per mile cycling at a moderate pace. That’s 516 calories every day and more when we ride harder. Lawyers and judges are sedentary workers. We can’t avoid it in our line of work. But we exacerbate the situation when we put in even more butt time driving back and forth between home and work. Biking is recreation in the true sense of doing something completely different from what we do at work. Biking to go where we need to go anyway gives us a premium of much-needed physical activity.
It’s good for your mind The health benefits of biking can be more mental than physical. Commuting by bike is a great buffer between 42
RES GESTÆ • JANUARY/FEBRUARY 2017
professional and personal life. It allows for shifting mental gears as the derailleur changes gears on the bike. Going home, the stress of the day subsides with every turn of the pedals. Biking to work gives us a jump-start on the day ahead by easing into what’s in store. Driving in the car usually involves distractions of one kind or another – maybe it’s the car radio or the irritation of being stuck in traffic. Traffic jams are rarely a hindrance to a bicyclist. We don’t bike with anything in our ears (not safe, in our opinion), so we get to be alone with our thoughts. It’s amazing how the creative ideas flow when traveling by bike. (Okay, some pretty crazy ideas pop out too, but they can be easily discarded later.) Dreyer claims to have rendered many legal opinions while coasting with no hands. Plus, biking is just plain fun. It’s hard to get on a bike without flashing back to being a kid and realizing that a bicycle opened up whole new vistas that were unattainable on two legs. That probably accounts for the goofy grin you might see on our faces as we bike to and from work. Despite moisture, even ice and the evil wind (always seems to be a headwind), there is a solid gratification in leaving one’s house or office on a conveyance we have been using since childhood.
Be careful out there Our experience has been that biking is a safe way to commute. Sure, we’ve had close calls (as we assume you have had in your cars) and a few “altercations,” but nothing to deter us. We have each had an experience where failing to wear a helmet would probably have resulted in a serious head injury or worse. Wear a helmet, period. Not wearing a helmet could kill you; wearing a helmet won’t kill you. If you are going to be riding in anything other than full daylight conditions,
you need lights – real lights, powerful lights. Bicycle lighting technology has advanced by leaps and bounds in recent years. Good lights are worth the expense. Lundberg uses front & back lights on his bicycle and front & back lights on his helmet. Dreyer has two back flashers (helmet and backpack) and one brightwhite blinker on his front handlebars. Don’t take the reflectors off your bike. They are very effective in the beam of a car’s headlights. Ride as if all drivers, including bus drivers, want to run you over. In the car-bike interface, the bike and its rider lose every time. Always ride so drivers, pedestrians and other bicyclists can readily determine where you are going and what you are doing. Many bike accidents are the result of the bicyclist riding erratically or unpredictably – or assuming others know what you are thinking. Lundberg wears a mirror on the side of his helmet that lets him see what is coming up from behind. Dreyer has a handlebar mirror that he will not live without. Take care at cross streets. If there is a car at the intersection or a car turning left in front of you, look for eye contact from the driver. That’s a sign the driver sees you. Be careful riding next to parked cars. A car door could swing open without warning, and you could win the proverbial “door prize” and a serious injury to boot. Cars making a right turn are another dangerous situation where you need to be alert against an inattentive driver turning into you if you are to the driver’s right. Pick your route carefully, and avoid routes that present dangers to bikes. Is there an off-street bike route like the Monon Trail in Indianapolis? Perfect! If not, is there a street with a marked bike lane? Our experience has been that the conflict between cars and cyclists is mostly territorial. It is amazing what a silly little white line on the pavement does
Photo by Vincent Morretino
Judge David J. Dreyer, Marion Superior Court, and Donald R. Lundberg, Lundberg Legal to defuse that tension. It tells drivers, “This is not your space.” Consider using side streets instead of arterials. It’s not just about getting from point A to point B as quickly as possible. It’s also about enjoying the trip and arriving intact. Riding on neighborhood side streets is pleasant, and after you’ve done it for a while you’ll get to know the regulars along your route and can exchange a friendly wave.
Getting started Commuting by bike can be a little daunting. Get a bike you are comfortable with, and make sure it is well maintained. It doesn’t have to be fancy or expensive. Skinny-tire road bikes are not a good choice for commuting. Wider, lower- pressure tires make for a more comfortable ride with fewer flats. Consider a bike with fenders. They do wonders in an unexpected rain shower. Learn how to fix a flat, and carry what you need to do the repair. Oh, yeah, and do us a personal favor – lubricate your chain. To us, the sound of a squeaky bike chain is like fingernails on a chalkboard. Ease into it. Learn how to handle your bike well. Gain confidence and competence before hitting the gritty urban streets. Ride in your neighborhood and on off-street trails before venturing
out into risky traffic situations. Ride conservatively and defensively. It’s more about safety than speed. Preview a safe route in your car. Take special note of the risky spots so that you’ll know where to be especially careful when you’re biking. Then pick a beautiful day for a trial run. Maybe on a Saturday or Sunday. Then it’s time to try it on a weekday. Once a month or once a week is fine. Does it suit you? Increase your frequency. If the distance between home and work is too long for a reasonable commute, consider driving part way (especially the non-bike friendly part) with your bike on a rack, then park your car and bike the rest of the way. When it starts getting cold in the fall, you can shut it down until spring unless you’re a crazy person and decide to keep riding. The two of us have a friendly cold-weather competition. Dreyer put Lundberg to shame this past winter by riding at -5 degrees. Lundberg’s lowest was a balmy +6. Don’t you think a judge, of all people, would have better sense? If you are going to join this club of crazy people, be very careful in slippery conditions or better yet, don’t ride. In all but the coldest weather, you might find that you have overdressed for the cold. The exertion of riding generates a lot of heat. As far as hand warmth, look into thermal
products that provide hand coverings on the handlebars. Figure out what you will do when you get to the office. If your commute is fairly short, just ride at an easy pace in your work clothes. You can pretend you are in Copenhagen or Amsterdam. If you have further to travel or want to ride fast, you’ll need to figure out how to freshen up when you get to work. If your office doesn’t have a shower facility, consider a nearby Y or health club. More and more of them are offering commuter memberships. Find a secure place to lock your bike. Get a good lock and, ideally, find an indoor location where you can store it. You also need a work-clothes strategy. Is there space for them at work? Maybe you’ll need to carry them on your bike. There are many elegant solutions for transporting clothes by bike these days. Dreyer carries work clothes every day in a great backpack that he found online. There’s no magic solution. You just need to think about it and work something out.
See you on the streets Commuting by bike is not for everyone – especially full-time and yearround like some crazy people we know. But occasionally and in good weather – nothing could be finer! q RES GESTÆ • JANUARY/FEBRUARY 2017
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Can I buy a few hours of your time? By Ted A. Waggoner
have been a lawyer for more than 30 years but have never had a client ask if he could buy a few hours of my time. My experience is that clients are not asking to purchase a lawyer’s time when they come to see me or any other attorney, and I do not want to purchase time when I hire a lawyer to work for me or as co-counsel. Why do we sell our time rather than our legal education, knowledge, skill and experience? That we should quit hourly billing practices and start value pricing our service is the focus of this column. The fees lawyers charge are governed by Rule 1.5 of the Rules of Professional Conduct, and the overriding issue is that we shall not make an agreement for, charge or collect an unreasonable fee. The fee rule goes on to list the factors that properly may be used to set a fee – across eight categories. I find 14 different factors listed in the eight categories. The “time involved in the representation” is just one of those factors. There have been questions raised about the method of charging legal fees in the past few years, especially questioning the wisdom of using “time spent” as the primary or sole factor in billing for legal services. It is often called “hourly billing,” but no one is known to bill in one hour increments, with most increments being 1/10, 1/6 or 1/4 of an hour for time spent on the legal services provided. Some lawyers who bill tenths or sixths of an hour will have a minimum of two or three units for each billing event they submit. Beware! The Disciplinary Commission may frown on this (see In Re Zirkle, 911 N.E.2d 572 (Ind. 2009)). Time is a unit of measurement that is used for many things. Why do lawyers use it as a base for the services we provide? There are two known benefits for using hourly billing – it is simple to calculate, and it gives bragging rights to
lawyers. The simplicity reason is easy to understand – you multiply the units of time spent for the client by your hourly rate. A bill takes moments to prepare. It is easy to complete, if not to defend: Client: Why did this simple legal problem cost so much money? Lawyer: It took so many hours to review the facts, research the law, draft the document and go to court. You said you would pay the hourly rate, and this is what it took. Client: But your bill is for more than the problem we were dealing with. Why didn’t you tell me how much it would cost? I could have done something different.
The lawyer may get paid but has lost the argument with the client – and possibly the client’s future business. The lawyer has not proven her professionalism in this transaction. And what lawyer has not had the “my rate is bigger than your rate” debate with classmates and other lawyers. Did we all feel a bit angry/envious of the announcement a few years ago of the $1,000 per hour rates charged by some NYC lawyers? You can choose your reaction. I can still recall the first time I got a “rate sheet” from one of the larger Indianapolis firms and saw that senior paralegals were billed at higher rates than most small town senior partners. Are those the best reasons to quit a bad billing system? They are among the reasons to stop billing by the hour. “When you sell your time by the hour, you lose the value of ideas. This one’s for professional-service providers.” Bruce Hetrick, the Indianapolis public relations guru, wrote this in his farewell article in the Indianapolis Business Journal at http://www.ibj.com/articles/29990. For the leading thoughts on changing from hourly to value pricing, you should read billing guru Ron Baker’s latest book, Implementing Value Pricing: A Radical Business Model for Professional Firms
(Wiley, 2010). For more information on the topic, you can also read my blawg, www.tedwaggoner.wordpress.com. More lawyers are moving to value pricing their legal services. These lawyers are trying to capture the value of the services they provide, the ideas they share in a way that is fairer to clients and to the lawyer. Telling a client up front what the fees are likely to be and then letting the client decide whether to hire the lawyer works far better than surprising the client when the case is over. If the client rejects the proffered fee, fine. She did not share your value in the work. Some people do not buy Ben & Jerry’s ice cream. Pay attention and learn [from discussions about] how you can get back to one of the real traditions in the practice of law – charging clients a fair amount for solving their problems and not for just spending your time. Sell what you have and others lack, as your clients thought when they came to you – sell your smarts. q Ted A. Waggoner is managing partner of the Rochester, Ind., firm Peterson Waggoner & Perkins, LLP. Editor’s Note: This article first appeared in Res Gestae in November of 2011. If you want to learn more about value or flat-fee billing, plan to attend this year’s Solo & Small Firm Conference in French Lick, Ind., in early June. Registration materials will be in the March magazine. Ted A. Waggoner Peterson Waggoner & Perkins, LLP Rochester, Ind. firstname.lastname@example.org
RES GESTÆ • JANUARY/FEBRUARY 2017
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January-February 2017 edition of Res Gestae, the journal of the Indiana State Bar Association