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May 2016

DICKSON'S LAST ORAL ARGUMENT IN SUPREME COURT'S FIRST PLACE: CORYDON

Vol. 59, No. 9


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The Journal of the Indiana State Bar Association

RES GESTÆ May 2016

Vol. 59, No. 9

DEPARTMENTS 10 LDA & SOUTH BEND

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18 LAWYER’S DUTY

PRESIDENT’S PERSPECTIVE Carol M. Adinamis, Westfield, 2015-2016

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ETHICS CURBSTONE

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RECENT DECISIONS 12/15

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CRIMINAL JUSTICE NOTES 1/16

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FAIR COMMENT

Donald R. Lundberg & Caitlin S. Schroeder, Indianapolis

Kathy L. Osborn & Andrea K. Townsend, Indianapolis

Jack Kenney, Indianapolis

Terry W. Tolliver, Indianapolis

F E AT U R E S

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Josh S. Tatum, Indianapolis

24 FIXED FEES EDITOR Susan J. Ferrer sferrer@inbar.org GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino vmorretino@inbar.org ADVERTISING Chauncey L. Lipscomb magazine-advertising@inbar.org WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey wpc@inbar.org

A TRANSFORMATIVE TIME FOR SOUTH BEND

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VIEWPOINT: LAWYERS FOR CHILDREN ON A LAWYER’S DUTY TO REPORT CHILD ABUSE & NEGLECT Derelle Watson-Duvall, Carey Haley Wong & Katherine Meger Kelsey, Indianapolis

COVER: Indiana’s original capitol building, constructed between 1814-1816, is located in the heart of downtown Corydon in Harrison County. In June of 1816, 43 delegates met in Corydon to draft the first state constitution. In November 1816, the first General Assembly of 29 representatives, 10 senators and the lieutenant governor met in the new building. On Dec. 11, 1816, Indiana was formally admitted as the 19th state. The Indiana Supreme Court held its first oral argument in Corydon on May 5, 1817. On April 20, Justice Brent E. Dickson heard his last such argument along with his Supreme Court colleagues (see p. 7) in the site’s historic Supreme Court Courtroom. After 30 years on the bench, Dickson retired on April 29. (Photo by Vincent Morretino)

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. © 2016 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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Pro tip: Words have meaning

A INDIANA STATE BAR ASSOCIATION One Indiana Square, Suite 530 Indianapolis, IN 46204 800/266-2581 • 317/266-2588 fax http://www.inbar.org

OFFICERS President Carol M. Adinamis, Westfield President-Elect Mitchell R. Heppenheimer, South Bend Vice President Andi M. Metzel, Indianapolis Secretary Patricia L. McKinnon, Indianapolis Treasurer Hon. Michael N. Pagano, Crown Point Counsel to the Karl L. Mulvaney, Indianapolis President

BOARD OF GOVERNORS 1st District 2nd District 3rd District 4th District 5th District 6th District 7th District 8th District 9th District 10th District 11th District 11th District 11th District At-Large District At-Large District Past President House of Delegates House of Delegates Young Lawyers Section

Michael J. Jasaitis, Crown Point Robyn M. Rucker, Valparaiso Robert L. Jones Jr., Notre Dame David E. Bailey, Fort Wayne Daniel L. Askren, Attica Patrick J. Olmstead, Greenwood Ann Z. Knotek, Brownsburg Hon. Leslie C. Shively, Evansville Crystal G. Rowe, New Albany Hon. Angela G. Sims, Anderson Andrew Z. Soshnick, Indianapolis Hon. Tanya Walton Pratt, Indianapolis Deborah J. Caruso, Indianapolis Rafael A. Sanchez, Indianapolis Shontrai D. Irving, Hammond Jeff R. Hawkins, Sullivan Hon. Thomas J. Felts, Fort Wayne, Chair Michael E. Tolbert, Gary, Chair-Elect Benjamin D. Fryman, Valparaiso, Chair

STAFF Executive Director Thomas A. Pyrz • tpyrz@inbar.org Administrative Assistant Kimberly D. Latimore • klatimore@inbar.org Associate Executive Director Susan T. Jacobs • sjacobs@inbar.org Administrative Assistant Julie A. Gott • jgott@inbar.org Director of Communications Susan J. Ferrer • sferrer@inbar.org Director of Public Relations & Social Media Carissa D. Long • clong@inbar.org Graphic Designer & Photographer Vincent Morretino • vmorretino@inbar.org Legislative Counsel Paje E. Felts • pfelts@inbar.org Director of Special Projects Section & Committee Liaison Maryann O. Williams • mwilliams@inbar.org Administrative Assistant Barbara L. Mann • bmann@inbar.org Local & Specialty Bar Liaison Catheryne E. Pully • cpully@inbar.org Administrative Assistant Shanae Gay • sgay@inbar.org Director of CLE Christina L. Fisher • cfisher@inbar.org CLE Coordinator Whitney Ruffin • wruffin@inbar.org Section & Committee Liaison Melanie Zoeller • mzoeller@inbar.org Director of Meetings & Events Ashley W. Higgins • ahiggins@inbar.org Membership Records & Technology Coordinator Kevin M. Mohl • kmohl@inbar.org Bookkeeper & Convention Registrar Sherry Allan • sallan@inbar.org Receptionist Chauncey L. Lipscomb • clipscomb@inbar.org

s attorneys we talk a lot – to clients, staff, other attorneys, the barista who makes our coffee, our spouse, our children and even the dog (or cat). Growing up you may have heard advice from someone – okay, probably from your mother – such as “once a word is spoken you cannot take it back, so think before you speak.” Words can be powerful; they can make someone’s day, tear someone down, encourage a child or associate, praise, criticize and cause a variety of reactions (good and bad). When we write we think carefully about the wording, but when most people speak they often talk off the top of their head or respond in a reactionary way with emotion. I’m reminded in this election year how much words can hurt or make the speaker look ridiculous. It is difficult to explain to my 11-year-old son why so many nasty things are being said, and I know it’s only going to get worse. This particular election year has seemingly afforded candidates to be disrespectful to others without even the pretense of consequence. It is interesting how society speaks to certain people differently than others. I worked as a receptionist at a doctor’s office during high school and a couple of college summers. The doctor often ran late seeing patients, which happened because he tended to spend a lot of time getting to know them. Sometimes when Dr. James was behind, the patients sitting in the waiting room would be so frustrated that they would rudely yell at me. When they saw the doctor, though, they were always enthusiastically kind, giving him a hardy “Hi, Dr. James!” The patients would then proceed to tell him all about their recent trips, new car or any other news in their life.

Like my former boss, as attorneys we are often given respect simply due to the fact that we have letters after our name. I have heard from clients that they were nervous to come to my office because they had never talked to an attorney and didn’t know what to expect. I remember the first time this happened to me. The wife of a referrer told me after a lovely dinner that she had been nervous for two days to meet Jeff and me because she only had a high school education, and she didn’t know what we would have in common. Of course, we had everything in common: kids, the newest restaurant, finding a good plumber, the new school referendum, etc. Nonlawyers tend to listen intensely when lawyers talk, so it is important that we choose our words carefully. Those letters after our names set a higher standard for us. Too often (like every political debate, it seems), I see people talking just to be talking, seemingly without thought about their words or the impact those words have on the listener. Everyone everywhere should remember the power of words and speak as carefully as we write. In the words of Lemony Snicket, “If writers wrote as carelessly as some people talk, then adhasdh asdglaseuyt[bn[ pasdlgkhasdfasdf.”

PRESIDENT’S PERSPECTIVE CAROL M. ADINAMIS carol@adinamis.com 2015-2016

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Justice Dickson’s last oral argument

Photos by Vincent Morretino

he second-longest-serving justice on the Indiana Supreme Court, the Hon. Brent E. Dickson, second from the left (above), heard his final oral argument on April 20 along with his colleagues, from left to right, Justice Robert D. Rucker, Chief Justice Loretta H. Rush, Justice Mark S. Massa and Justice Steven H. David, in the original Supreme Court Courtroom, which is part of the Corydon Capitol State Historic Site in Harrison County. Justice Dickson retired on April 29. The Corydon event, which included the dedication of the Polly Strong Slavery Case historic marker, was endorsed as an official Bicentennial Legacy Project. Corydon was the state capital of Indiana until the government moved to Indianapolis in 1825. (See more photos at the ISBA Flickr page via www.inbar.org.)

RES GESTÆ • MAY 2016

BENCH & BAR NEWS

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Indiana Kids’ Election launches new website, opens registration for teachers & lawyers Endorsed as a Bicentennial Legacy Project

IKE is based on the premise that voting is only occasionally done by inspiration but more often done by habit. With its special emphasis on encouraging students to develop one’s voting habit at an early age, IKE attempts to emulate the election process as closely as possible. Statewide, students participate in voting milestones such as registering to vote on or before Tuesday, Oct. 11, and casting a ballot on Tuesday, Nov. 8 – just like their parents!

Visit www.inkidselection.com to sign up today! Follow us on Twitter at www.twitter.com/ inkidselection, and like us on Facebook, www.facebook.com/ indianakidselection.

Geoffrey G. Slaughter selected to succeed Justice Dickson on Supreme Court n May 9, Gov. Mike Pence named Geoffrey G. Slaughter as the 109th justice to the Indiana Supreme Court. Slaughter will fill the vacancy left by Justice Brent E. Dickson, who, after 30 years on the bench, retired on April 29.

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Also, under Indiana law, schools are required to give instruction on the election process two weeks preceding a general election for all students in grades 6-12. IKE, where the voting age is lowered to 5, helps Indiana schools meet this requirement by providing comprehensive curriculum guides, free of charge, to participating schools. Note: The curriculum meets current state academic standards as approved by the Indiana Department of Education.

“I’m grateful to announce Geoff Slaughter as the 109th justice to the Indiana Supreme Court,” said Gov. Pence. “Over his nearly 30-year career, Geoff Slaughter has demonstrated a first-rate legal intellect, an unparalleled understanding of constitutional and antitrust law, a remarkable ability to think and write clearly on the most complex issues, and a steadfast commitment to improving the legal community. I anticipate his service on Indiana’s highest court will be characterized by a fair and measured hand and a deep appreciation for our Constitution. I’m thankful to Chief Justice Loretta Rush and the Indiana Judicial Nominating Commission for their tireless work and countless hours spent to ensure the individuals brought to my desk bring to the Court the same commitment, intellect and passion as former Justice Brent Dickson.”

Indiana lawyers also have the unique opportunity to participate in this program by signing up for

A native of Lake County, Slaughter is a partner in the Indianapolis office of Taft Stettinius

& Hollister LLP. There, he has represented clients in various types of cases, including antitrust class actions, securities-fraud claims, environmental disputes, state and federal constitutional claims, land-use restrictions, and handling matters on judicial review from administrative decisions. He has argued numerous matters before the state and federal appellate courts. Before joining Taft, he served for six years as Special Counsel in the Office of Attorney General of Indiana, representing the state in various court actions; was an associate at Kirkland & Ellis in Chicago; and clerked for the late Chief Judge Allen J. Sharp, U.S. District Court for the Northern District of Indiana. While in private practice, Slaughter also served as chairman of the Indiana Public Employees Relations Board. Slaughter is a Life Fellow and currently serves as president of the Indiana Bar Foundation. He is also a member of the Indiana State and Seventh Circuit bar associations and is immediate past chair of the Appellate Practice Section of the Indianapolis Bar Association. For more than 10 years, Slaughter served as a member of the Northern District of Indiana’s local rules advisory committee.

BENCH & BAR NEWS

n Nov. 8, students across Indiana will elect their own governor, president and senator in a show of active citizenship through Indiana Kids’ Election (IKE), an award-winning mock election program. Sponsored by the Indiana State Bar Association, Indiana Secretary of State and the Indiana Department of Education, IKE announced earlier this month that registration is open for K-12 classrooms statewide at www.inkidselection.com.

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the IKE Speakers’ Bureau and delivering 1-hour classroom presentations about the election process, how to make informed choices about candidates, and more.

Since 1996, he has volunteered as a judge for “We the People,” a civics education program for high school seniors and junior high students. For more than 15 years, Slaughter has served as a board member of the Indianapolis chapter of the Federalist Society for Law & Public Policy Studies. He spent five of those years as chapter president. Slaughter earned his undergraduate degree from Indiana University Bloomington and a joint law/MBA degree from I.U. Maurer School of Law and Kelley School of Business. He previously served as president of the law school’s alumni board. RES GESTÆ • MAY 2016

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By Josh S. Tatum

A transformative time for South Bend

LEADERSHIP DEVELOPMENT ACADEMY

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n March, the 2016 LDA class explored how South Bend’s civic and business leaders tackled challenges in economic development and education. Participants heard from Justice Mark Massa, “Mayor Pete,” leaders from public and parochial schools, current and former economicdevelopment city leaders, and leaders from high-tech companies. They later toured the city to see firsthand the many historic landmarks and rising new development. South Bend hosted the LDA’s first gathering outside of Indianapolis this year after sessions on leadership training and state and federal government in January and February. To kick things off, Justice Massa focused on the law as a “noble, heroic profession.” He discussed how the common law, which arises from the needs of the people, contrasts with topdown civil codes. In the commonlaw tradition, the law is a bulwark for liberty rather than an instrument of the state. During conversation after his formal remarks, Justice Massa identified heroin abuse and unrepresented litigants as two major long-term problems facing Indiana’s legal system. He also made clear he was against mandatory pro bono, calling it “coerced volunteerism.” Following the visit with Justice Massa, the class joined dignitaries from the St. Joseph County bench and bar at Faegre Baker Daniels’ offices in downtown South Bend for a reception with a beauJosh S. Tatum Plews Shadley Racher tiful view of the city & Braun LLP at twilight. Sponsored Indianapolis, Ind. by the host firm, the jtatum@psrb.com St. Joseph County Bar RES GESTÆ • MAY 2016

Foundation and the St. Joseph County Bar Association, the event provided an opportunity for participants to meet local judges, bar leaders and previous LDA graduates from the area. The following day, early risers were greeted by a chilly, dark morning and a warm welcome from South Bend’s young mayor, Pete Buttigieg. The mayor joined class and committee members for a light run along the St. Joseph River and a peek at “South Bend River Lights,” public art that lights up the river from sunset to sunrise. After a breakfast sponsored by the ISBA Young Lawyers Section, the class heard from Carl Loesch, Catholic education secretary for the Diocese of Fort Wayne-South Bend; Michelle Engel, a local lawyer and secretary of the South Bend Community School Corporation Board of Trustees; and Dr. Jerry Thacker, superintendent of schools for Penn-HarrisMadison School Corporation. The panelists spoke about providing top-notch education with limited resources. South Bend Mayor Pete Buttigieg was up next. This youngest-elected executive of a city of more than 100,000 people, described his problem-solving style, which included setting ambitious goals based on good information. He told of one of his administration’s first projects, which was identifying and addressing abandoned homes in the city. He also recounted how South Bend Corporation Counsel and 2013 LDA graduate Cristal Brisco credited her experience in LDA for her decision to join his administration and enter public service. Next came a panel on economic development moderated by

Chief Operating Officer Mark Neal of Bradley Company. Scott Ford, also with Bradley Company and former executive director of Community Investment in South Bend, shared how the city had recently worked with other groups to encourage growth. Marian Hodges, vice president of operations at Data Realty, encouraged the class to find what they love in their jobs. Tim Sexton, associate vice president of public affairs at the University of Notre Dame, shared the history of Notre Dame’s relationship with South Bend, including the school’s recent active participation in renewal of neighborhoods near its campus. And David Cangany, general manager and CEO of Transpo, South Bend’s public-transportation corporation, shared the renewed importance of public transportation to attracting companies and a workforce. The group enjoyed lunch sponsored by Plews Shadley Racher & Braun at Tippecanoe Place, a mansion built in 1889 by Clement Studebaker, co-founder of the vehicle manufacturing firm that called South Bend home until 1963. After the meal, LDA participants found themselves riding on a bus powered by compressed natural gas and operated by Transpo. The afternoon was spent seeing concrete evidence of the economic development that the morning panel and Mayor Pete had discussed. LDA’s first stop was South Bend’s Union Station. Though trains no longer stop here, it still sees more than its share of traffic. But now the traffic is electronic. Today, Global Access Point is the Master Operator of Union Station Technology Center, which originally opened in 1929 across from the Studebaker plant. This is part of South Bend’s rise in the tech


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The 2016 LDA rises to the rooftop of Studebaker Building 84 with South Bend’s cityscape in the background. industry – the city has the nation’s second-greatest concentration of transcontinental fiber, giving its data connections advantages in multiple industries. Just across the tracks from Union Station is Studebaker Building 84. When LDA participants visited, it looked like what it has been for decades: a vacant factory. After riding up an industrial elevator that once carried cars to each production floor, the lawyers found themselves on the roof, overlooking Four Winds Field, home to the Class A affiliate of the Chicago Cubs, and the rest of the city, including Notre Dame’s gold-domed Main Building. While on the roof, the class learned of the various plans for redevelopment of the building, which will include data center expansion and residential units. The next stop was the site of another Studebaker building now gone. Data Realty has built a data center on one part of the former auto plant. The company uses high-tech approaches to analyze

all kinds of data to enable its clients to accomplish their goals. The class saw rooms full of servers on raised floors and dedicated cooling systems. The tour ended at a set of double doors that led to an empty lot, where the company has room to expand its operations. The bus next brought the group of lawyers to Transpo’s own headquarters, which is the first transit facility in the country to obtain the U.S. Green Building Council’s highest level of achievement in the Leadership in Energy & Environment Design program, LEED Platinum. The highlight here was seeing the new compressed natural gas distribution facility, which includes a station for public use. At Transpo headquarters, the bus picked up Charles Leone of Leone Halpin, LLP, who served as the city’s attorney for many years. Charles gave the class a guided tour of several sites where the city had worked with other groups to redevelop. The final stop on the trip was Notre Dame Law School,

where the class saw the school’s courtroom and asked questions of Director of Career Development Vincent Versagli. At the close of the session, LDA participants found themselves inspired by South Bend’s continuing transformation and excited to bring home the lessons of that transformation to their own communities.

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Achievement award nominations sought Nominations due July 8

N ATTENTION

ew this year, the State Bar’s Awards Luncheon will be held on Friday, Sept. 9, separate from the ISBA Annual Meeting scheduled for Sept. 28-30. To nominate a deserving superstar, visit http://tinyurl.com/ISBAAwards-2016 and complete an online nomination form. The following awards will be presented at the Awards Luncheon:

CIVILITY AWARDS Sponsored by the Litigation Section The ISBA Litigation Section’s Civility Awards recognize an attorney and judge for outstanding civility and professionalism in their dealings with fellow judges, attorneys, parties, witnesses and the public. Contact: Melanie Zoeller, mzoeller@inbar.org

GALE M. PHELPS AWARD Sponsored by the Family & Juvenile Law Section The Gale M. Phelps Award is named in memory of Gale M. Phelps, a former chair of the ISBA Family & Juvenile Law Section and one of the most active members of the section, who passed away in 2003. Factors considered in the selection of the recipient reflect Gale’s contributions to the family law legal community and include: • Exceptional service to the profession: unsolicited mentoring to new attorneys, reaching out to other lawyers, and working with attorneys on an individualized basis; • Highest level of competence/ improving the profession: reviewing legislation and shaping family law policies, contributing to educational seminars, serving in leader-

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RES GESTÆ • MAY 2016

ship positions for legal and nonlegal organizations; • Raising the level of professionalism and civility in domestic relations matters: going beyond the client’s basic needs, maintaining respect for the court system and its participants; and • High moral character and ethical standards Contact: Maryann Williams, mwilliams@inbar.org

OUTSTANDING JUDGE AWARD

RABB EMISON AWARDS

2. The nominee fosters civility among those attorneys who practice before the bench.

Sponsored by the Diversity Committee The Rabb Emison Awards, named for its first recipient in the individual category, recognize an individual and an organization that have demonstrated a commitment to promote diversity and/or equality in the legal profession and in the membership of the Indiana State Bar Association. Contact: Whitney Ruffin, wruffin@inbar.org

WOMEN IN THE LAW RECOGNITION AWARD Sponsored by the Women in the Law Committee State Bar members are invited to nominate an attorney for the Women in the Law Recognition Award, which is presented to an individual who has assisted in the advancement of women in the legal profession, served as a role model or mentor or has influenced women to pursue a career in law or for contributions to the legal profession as a whole or to a particular area of practice. The nominee must be an attorney licensed in the state. Those making nominations are encouraged to submit letters of support. Contact: Melanie Zoeller, mzoeller@inbar.org

Sponsored by the Young Lawyers Section The ISBA Young Lawyers Section is accepting nominations for this year’s Outstanding Judge Award. The criteria for the award are as follows: 1. The nominee provides substantial education or mentoring to young lawyers.

3. The nominee epitomizes the core values of our profession – honesty, competence and respect for the judicial system. 4. The nominee has a recognized reputation for providing service to the local community. Note: The names of those submitting nominations for consideration shall be kept confidential to avoid any appearance of impropriety. Only current judges are eligible for this award. Contact: Whitney Ruffin, wruffin@inbar.org

TRAILBLAZER/ABRIENDO CAMINOS AWARD Sponsored by the Latino Affairs Committee The Latino Affairs Committee’s Trailblazer/Abriendo Caminos Award recognizes the outstanding achievements, commitment and leadership of a lawyer who has paved the way for the advancement of other Latino attorneys and/or the Latino community. This award recipient will personify excellence in the profession, especially by his/her steadfast commitment, vision, courage and tenacity, which have resulted in substantial and lasting contributions to the Latino legal profession as well as the broader Latino community.


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The nominee must be a current ISBA member. Contact: Melanie Zoeller, mzoeller@inbar.org

LIBERTY BELL AWARD Sponsored by the Young Lawyers Section The Liberty Bell Award celebrates community service that strengthens our system of freedom under law. This is your opportunity to focus on a local community leader who may not receive public recognition of his or her accomplishments. Traditionally this award has been presented to nonlawyers who have rendered outstanding service to their communities in any of the following areas: • promoting a better understanding of our Constitution and the Bill of Rights; • encouraging greater respect for the law and the courts; • stimulating a deeper sense of responsibility so that citizens recognize their duties as well as their rights; • contributing to the effective functioning of our institutions of government; • fostering a better understanding and appreciation of the rule of law. Contact: Whitney Ruffin, wruffin@inbar.org

COMMUNITY SERVICE AWARD Sponsored by the Service Committee The Community Service Award was established by the ISBA Service Committee, a project of the first ISBA Leadership Development Academy class. The Service Committee was formed by the class with an interest in advancing the nonlegal service work of lawyers and judges in their communities and state. Factors considered in the selection of the recipient reflect the

core values the Service Committee wishes to promote: 1. exceptional nonlegal service work in their respective community – this does not include pro bono work, which is recognized separately; 2. an embodiment of the core values of our legal profession; 3. promoting community involvement; and 4. helping in underserved areas – this includes providing service in lower-income areas, youth initiatives, the elderly and infirm, schools, and similar areas. Contact: Catheryne Pully, cpully@inbar.org

HON. VIOLA TALIAFERRO AWARD Sponsored by the Committee on Civil Rights of Children The Committee on Civil Rights of Children annually honors an individual who best exemplifies Judge Taliaferro’s courageous leadership in addressing the unmet legal needs of children and in raising the public’s awareness of these needs. Nominations for this award may be for an individual who is living or deceased. Contact: Melanie Zoeller, mzoeller@inbar.org

AFFILIATE MEMBER AWARD Sponsored by the Affiliate Membership Committee This award recognizes an affiliate member of the Indiana State Bar Association who has contributed to the legal profession. The selection committee will give primary consideration to nominees whose efforts offer evidence of distinctive service to the legal profession in the areas of paralegalism, legal administration, law librarianship or court administration. The

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AWARDS continued from page 13 selection committee may also consider: • a nominee’s contributions in the areas of leadership, professional development and promotion of paralegals, legal administrators, law librarians or court administrators; • commitment to the Indiana State Bar Association; and • service not only to the legal community, but compassion and dedication to others by involvement and volunteer service to the community. Contact: Susan Jacobs, sjacobs@inbar.org

DAVID HAMACHER PUBLIC SERVICE AWARD Sponsored by the Appellate Practice Section The criteria for this award are as follows: high moral character and ethical standards; service to the

community; peacemaking qualities; person not necessarily a lawyer; award not gender specific. Any lawyer or nonlawyer may be nominated. Contact: Melanie Zoeller, mzoeller@inbar.org

Sponsored by the Federal Judiciary Committee

Sponsored by the Young Lawyers Section

The Federal Judiciary Committee is seeking nominations from federal judges, the public, attorneys practicing in Indiana’s federal courts, and a candidate’s peers for the Henry Hurst Judicial Assistance Award, which is named in memory of Henry Hurst, the first federal clerk of the district court of Indiana, who was sworn in on May 5, 1817, and served the entire state until 1835. Henry Hurst exemplified the importance of having highly skilled personnel assisting the federal judiciary in order to promote justice and efficiency in the courts. This year’s nominees for the Hurst Award shall be from the Northern District of Indiana and serve as a member of the district court clerk’s office or the district bankruptcy court clerk’s office, as a staff member to a district court judge or a district bankruptcy court judge, or as a member of the administrative personnel. Please identify the nominee’s job title and provide a description of the candidate’s qualifications for the award. Contact: Paje Felts, pfelts@inbar.org

Nominated candidates will exemplify the virtues embodied in the oath required of all Indiana attorneys when admitted to the bar. To nominate a young lawyer, complete the nomination form and attach a letter explaining why you believe your nominee should be considered for the award. An attorney qualifies as a young lawyer if he or she is under 36 years of age or has less than six years of legal experience. If you prefer that your

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RES GESTÆ • MAY 2016

HENRY HURST JUDICIAL ASSISTANCE AWARD

OUTSTANDING YOUNG LAWYER AWARD

INDIANA CHAPTER

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nomination remain anonymous, please advise, and we will honor your request. Contact: Whitney Ruffin, wruffin@inbar.org


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Thanks to our Judicial Reception sponsors! Platinum ($1,000 +) Barnes & Thornburg Faegre Baker Daniels Hall Render Killian Heath & Lyman Hoover Hull Turner Ice Miller Kenneth J. Allen Law Group Muncie Bar Association Stuart & Branigin Taft Law Unterberg & Associates

Gold ($500-$999) Curtis E. Shirley Probate Litigation

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2016 Legal Ethics Essay Contest Deadline: July 15 he Indiana State Bar Association’s Legal Ethics Committee – along with the Young Lawyers Section and Written Publications Committee – is again, in promotion of the continued discussion on ethics in our profession, sponsoring ISBA’s yearly ethics essay contest. The contest, open to Indiana law students, new lawyers and paralegals, boasts a cash prize for the top entry as well as the chance to have one’s essay featured in the State Bar’s flagship publication, Res Gestae.

ATTENTION

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Entrant basics • Essay length not to exceed 2,000 words (including endnotes) • Free to choose any topic of interest to you (or to the larger legal community) in drafting your essay • All entries must be electronically submitted on or before 11:59 a.m. EDT Friday, July 15. Submissions will be judged by three Legal Ethics Committee members. The top three participants will present their essays to the committee and receive recognition in this year’s Awards Luncheon program Sept. 9. Questions? Contact Catheryne Pully at the State Bar, 800/2662581 or cpully@inbar.org.

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ISBA Legal Ethics Essay Contest GOALS To (1) further the discourse on legal ethics in the profession generally and amongst Indiana law students and recent graduates in particular, and (2) allow ISBA’s Legal Ethics Committee to continue assessing prevailing attitudes of those at the outset of their careers toward issues in professional responsibility.

RULES Eligibility: The contest is open to: (1) all Indiana law school current enrollees and recent graduates (i.e., received J.D. or LL.M. degree within the last year); (2) attorneys within their first three years of practice; and (3) paralegals with five years (or less) work experience. Length: Overall essay must not exceed 2,000 words (including endnotes). Topic: Participants are free to write on any topic of interest to them (or to the legal community as a whole). Deadline: All essays are to be electronically submitted, in Microsoft Word format, to ISBA Local & Specialty Bar Liaison Catheryne Pully (cpully@inbar.org) no later than 11:59 a.m. EDT Friday, July 15. Finalists: Members from the ISBA Legal Ethics Committee will select, from all entries, three finalists, who will then receive an invitation to attend the committee’s mid-summer meeting, either in-person or telephonically, to present their essays and answer questions. Winner: Committee members charged with judging submissions will award the 2016 title to the top article. The winner will be contacted by email. Prize: The winning essayist, in addition to receiving a $500 cash prize, will have the opportunity to have his or her piece considered for publication in Res Gestae, ISBA’s flagship publication, with statewide readership among legal practitioners numbering in the thousands. The top entrant will also have the chance to compete for a Harrison Legal Writing Award, handed down periodically by the State Bar’s Written Publications Committee, as well as be formally recognized at the ISBA’s Awards Luncheon scheduled for Sept. 9. The remaining two finalists will, along with the top essayist, have their entries reproduced in Addendum, ISBA’s biweekly, membership-wide e-newsletter. The top three submissions will also earn mention in the event program for this year’s Awards Luncheon.

GUIDELINES 1. Essays are to be in typewritten, using either Times New Roman or Book Antiqua font, 12-point type. 2. Essay text is to be double-spaced, with 1-inch margins on either side. 3. Essay pages are to be lower-right numbered, complete with author’s name. 4. Essay notes and citations are to be entered using the Bluebook legal style. 5. Essays are to reference at least one of the following legal authorities: the Indiana Rules of Professional Conduct; the Indiana Rules for Admission to the Bar & the Discipline of Attorneys; Indiana Court of Appeals (for-publication or reclassified memorandum) decisions; and Indiana Supreme Court opinions. Essayists are free, of course, to additionally reference: American Bar Association Model Rules of Professional Conduct; rules and case law governing ethical conduct and professional responsibility in other U.S. jurisdictions; and exceedingly persuasive secondary sources.


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By Derelle Watson-Duvall, Carey Haley Wong and Katherine Meger Kelsey

Lawyers for children on a lawyer’s duty to report child abuse & neglect Editor’s Note: The views expressed in this article are not necessarily those of the Indiana State Bar Association. The Editor will consider publication of opposing viewpoints upon proper submission to Res Gestae.

VIEWPOINT

I

n fiscal year 2013 in Indiana, 49 Indiana children died from child abuse and neglect. Fiftyseven percent of the children were one year old or younger. In 2015, the Indiana Department of Child Services (DCS) received 202,493 reports of child abuse or neglect.1 In light of recent events at Indiana high schools involving inappropriate contact between authority figures and students and in some instances the failure to report that contact to the appropriate authorities, we wish to present our viewpoints on a lawyer’s duty to report child abuse and neglect. The question of whether a lawyer should report child abuse or neglect about which the lawyer has learned during a confidential communication with a client is not easily answered yet germane to family

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law and other fields, including education, nonprofit corporation and employment law. The question was discussed in Opinion No. 2 of 2015, a formal advisory opinion of the Indiana State Bar Association Legal Ethics Committee published in the July/August 2015 issue of Res Gestae. The ethics opinion acknowledges the difficult nature of the issue and discusses one of the exceptions to Indiana Rule of Professional Conduct 1.6. The Legal Ethics Committee concludes that, absent taking action “to prevent reasonably certain death or substantial bodily harm,” lawyers must maintain their longstanding duty of confidentiality. We submit that Opinion No. 2 of 2015 is inconsistent with the plain language of Rule 1.6(b)(2) (disclosure of confidential information to prevent the client from committing a crime) and Rule 1.6(b)(6) (disclosure of confidential information to comply with other law). It removes lawyers’ discretion to report child abuse and neglect based on facts that meet other requirements for

disclosing a client’s confidential information under Rule 1.6, but which do not meet the standard of “prevent[ing] reasonably certain death or substantial bodily harm.” This issue is extremely fact sensitive. There are times when a lawyer may believe it is important to make a report of abuse or neglect without having the client’s consent. There are other times that a lawyer may find it is not appropriate to use the exceptions to Rule 1.6 to report child abuse or neglect. The Preamble, Rules and Comments to the Rules of Professional Conduct provide guidance in answering this question. Lawyers should consult Indiana statutes on child abuse reporting and the Indiana Supreme Court opinion of Smith v. State 2 when making a decision. With all due respect to the Legal Ethics Committee’s opinion, the Indiana statutory requirements to report child abuse and neglect are broader than the recent opinion provides. The committee advises that lawyers must report child abuse or neglect only in cases of reasonably certain death or substantial bodily harm but may not report in lesser circumstances absent the client’s consent. Indiana law states that it is essential that the safety of children be prioritized and that the reporting requirements should be read in a manner to encourage, rather than discourage, the reporting of child abuse and neglect. In Smith, our Supreme Court held that the statutory scheme of reporting child abuse or neglect is designed to err on the side of over reporting.3 The Court further opined that the statutes require immediate reporting of suspected child abuse or neglect and in furtherance of that aim immunize from criminal and civil liability those who immediately report conduct that turns out, after later


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assessment and reflection by DCS or law enforcement, to have been innocuous conduct.4 Indiana’s reporting statutes, IC 31-33-5-1 et seq., do not give lawyers an exception to the requirement that individuals report child abuse and neglect if they have “reason to believe” that a child is a “victim of abuse or neglect.” IC 31-9-2-133 defines “victim of child abuse or neglect” as a child described in the CHINS definition statutes, IC 31-34-1-1 through IC 31-34-1-5, IC 31-34-1-10 or IC 31-34-1-11, regardless of whether the child needs care, treatment, rehabilitation or the coercive intervention of a court. IC 31-92-101 defines “reason to believe” as “evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected.” It is important to note that the reporting statute requires any person who has reason to believe to report the abuse. The reporting requirement applies to all individuals. There is no Indiana case law or statutory exception to the contrary. The Indiana Code also explicitly states that privileged communications between a variety of professionals and their clients is not grounds for failure to report child abuse or neglect.5 The lawyer-client privilege is not mentioned as either abrogated or not abrogated. The intent behind the omission of the lawyerclient privilege in IC 31-32-11-1 is open for interpretation and debate. Other states do specifically acknowledge the privilege and except lawyers from the reporting requirement, as mentioned in the ethics opinion.6 The mandate to report child abuse or neglect if doing so is necessary to prevent reasonably certain death or substantial bodily harm is made clear in Indiana Rule of

Professional Conduct 1.6(b)(1). Unfortunately, Legal Ethics Committee Opinion No. 2 of 2015 omits other crucial sections of Rule 1.6 – specifically, Rules 1.6 (b)(2) and (b)(6), both of which broaden a lawyer’s duty to report beyond the duties explained in the opinion. Section (b)(2) authorizes lawyers to disclose confidential information to prevent the client from committing a crime, which includes all child abuse and neglect felonies (battery, neglect of a dependent and sex offenses) and two of the child abuse and neglect misdemeanors, failure to report child abuse, defined at IC 31-33-22-1, and obstruction of a child abuse assessment, defined at IC 31-33-22-2. Rule 1.6(b)(6) authorizes the disclosure of confidential information to comply with another law, such as the child abuse reporting law. These additional exceptions to the requirement to preserve a client’s privileged communication as outlined in Rule 1.6, combined with the reporting statute, make clear that lawyers can and should be permitted to report child abuse or neglect in situations other than those limited to preventing “reasonably certain death or substantial bodily harm.” If the intent of 31-32-11-1 was to leave the lawyer-client privilege intact and not require lawyers to report child abuse or neglect, the Rules of Professional Conduct do allow lawyers some discretion in deciding whether to report child abuse and neglect. According to Rule 1.6(b)(1)(2) and (6), a lawyer may reveal confidential information to the extent necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime; or (6) to comply with another law or court order. All child abuse and neglect reporting is covered by these exceptions. The Legal Ethics Committee has stated

that a lawyer must report in situations falling under Rule 1.6(b)(1). If a lawyer “may” report confidential information in other situations, namely to prevent a crime from being committed or to comply with the law, how does a lawyer decide if he or she should make the report? Admittedly, the most challenging scenario is one outlined in Opinion No. 2. A victim of domestic violence who seeks the advice of a lawyer regarding her situation will likely explain the abuse and endangerment to her lawyer. The lawyer will provide advice that may include the seeking of a protective order, the filing of a police report or the Derelle Watson-Duvall steps to take to remove Kids’ Voice of Indiana herself and her children Indianapolis, Ind. from the situation. If the dduvall@kidsvoicein.org client takes the advice and makes a police report, the lawyer is relieved of the responsibility of deciding whether or not to report child abuse or neglect. The report has already been made. But how should the lawyer proceed if the client leaves the lawyer’s office and takes herself and her children Carey Haley Wong back to the dangerous Child Advocates situation? What if the Indianapolis, Ind. carey@childadvocates.net client goes back to the home but with a plan in place for removing herself and her children from the situation? What if the information provided by the client was such that the lawyer believed the lives of the children and the client (or potential client) were in danger? The Legal Ethics Committee and our Katherine Meger Kelsey Kids’ Voice of Indiana respective offices agree (continued on page 21)

Indianapolis, Ind. kmeger@kidsvoicein.org

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LAWYER’S DUTY TO REPORT continued from page 19 that a report must be made if the lawyer believes that when the client returns to the home, it is reasonably certain that substantial bodily harm or death will be the result. Another example is when the child is a “victim of child abuse or neglect” because the child is the victim of a sex offense, thus meeting the CHINS definition at IC 31-341-3, which also requires that a child abuse or neglect report be made to DCS or law enforcement. If the child is a victim of child pornography [defined at IC 35-42-4-4], the child might not have suffered reasonably certain death or substantial bodily harm but may still be endangered and need protection from DCS or law enforcement. Our disagreement with the Legal Ethics Committee arises over whether the lesser (but still rising to the level of child abuse) acts may be

reported. The committee focuses on allegations of “untoward parenting” that become known to a lawyer in the course of the lawyer’s representation of a client. This may have been an unfortunate choice of wording, but the language is included in the opinion nonetheless, and we believe that it significantly minimizes the severity of the situation required for the reporting of child abuse and neglect. It may be accurate that the vast majority of allegations of “untoward parenting” do not require a lawyer to use an exception to the lawyer’s duty of confidentiality, but “untoward parenting” is not what the reporting statutes are designed to address. Rather, the two most common statutory definitions of “victim of child neglect or abuse” require that the child’s “physical or mental condition be seriously impaired or seri-

ously endangered” due to neglect 7 or that the child’s “physical or mental health is seriously endangered due to injury by the act or omission of the child’s parent, guardian, or custodian.”8 In our own practices, this frequently appears as strong indications of a child being exposed to substance abuse, mental health issues of the parent, physical abuse of the child, lack of proper supervision being provided to the child, such that the child is endangered in various ways, lack of proper education and medical treatment for the child, lack of stable or appropriate housing for a child, and so on. This goes far beyond mere “untoward parenting.” If a lawyer is concerned because a client continues to make allegations of bad parenting against (continued on page 22)

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LAWYER’S DUTY TO REPORT continued from page 21 the other parent, the lawyer needs to consider his or her responsibilities. First, does the allegation rise to the legally defined level of abuse or neglect? Or is this simply “untoward parenting”? If the parent is smoking too much or letting the child stay up too late, this may be a case of conflicting parenting and lifestyles, rather than child abuse or

neglect. However, if the allegation is truly an allegation of abuse or neglect (leaving a 2-year-old unsupervised, use of illicit drugs while the children are in a person’s care, for example), a child abuse or neglect report may be necessary. The lawyer has a reasonable person standard in reporting, meaning that if, as a reasonable lawyer, he or she

believes that a similarly situated reasonable lawyer would believe that the child is a victim of abuse or neglect, the lawyer should report those allegations. A lawyer representing a parent, guardian or custodian in a CHINS or termination of parental rights case does not need to report child abuse or neglect because the abuse or neglect has already been reported and the legal duty to report has already been met. As the Court of Appeals explained in Daymude v. State, the duty to report does not require professionals to continue divulging privileged communications after making the report.9 Daymude involved a health care provider but arguably extends to lawyers as well. In conclusion, the authors believe that the decision of whether Indiana law requires that lawyers use the exceptions to Rule 1.6 to report child abuse or neglect can be an extremely challenging issue for lawyers. We disagree with the portion of the Legal Ethics Committee report that states lawyers “may not” report in circumstances other than reasonably certain death or substantial bodily harm. Instead, lawyers should be permitted to consider the following in deciding to report child abuse and neglect: (1) the child’s age; (2) the child’s inability to protect himself or herself from danger; (3) the information the lawyer has learned at semi-

ISBA members: Please pay your dues online at www.inbar.org For info, call: 800-266-2581 22

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nars and from case law and other legal references; (4) the severity of the acts that have occurred and the likelihood that the abuse or neglect will continue; and (5) the possibility that a crime is being or will be committed whether through an abusive or neglectful action or through failure to report the child abuse or neglect (recognizing again that most acts of child abuse or neglect are criminal acts). A child’s risk of reasonably certain death or substantial bodily injury should not be the sole guideline for lawyers deciding whether to report child abuse or neglect; rather, a careful analysis of the case law and statutes regarding reporting of child abuse and neglect should be considered in light of a lawyer’s ethical duties as provided by Rule 1.6. 1. DCS Hotline Fact Sheet 2015 (https://secure.in.gov/dcs/3165.htm). 2. 8 N.E.3d 668 (Ind. 2014) 3. Id. at 683 (emphasis in opinion).

caseworker and served as counsel for the Marion County Office of Family & Children for 16 years. She has represented adoption and guardianship petitioners in private practice. She has co-authored CHINS Deskbooks and cumulative supplements from 2007 through 2014. She received the State Bar’s Viola Taliaferro Award in 1998 and the Women in the Law Recognition Award in 2004. In 2011, she received the Distinguished Barrister Award. Carey Haley Wong currently serves as chief counsel at Child Advocates, Inc. She is a 1999 graduate of DePauw University and a 2002 graduate of I.U. School of Law-Indianapolis. She worked as an attorney at the Department of Child Services, handling primarily CHINS and termination of parental rights cases from 2002-2011. In January of 2009, she was named chief counsel of the Marion County Office of the Department of Child Services. Carey has worked at Child Advocates as an attorney representing guardians ad litem since 2011. Child Advocates is a not-for-profit agency providing

GAL/CASA services to all of the children with CHINS or termination of parental rights cases in the Marion County Juvenile Court. While at both DCS and Child Advocates, Carey has been responsible for training DCS case managers or volunteer CASAs on the legal aspects of their jobs. Katherine Meger Kelsey joined Kids’ Voice as an attorney for the guardian ad litem program in October 2009. In March 2013, she began working in the Children’s Law Center of Indiana and is the co-author of the 2014 cumulative supplement to the CHINS Deskbook. Katie presents at conferences on evidence in CHINS cases, social media in family law cases, contested adoptions, legal ethics, guardianship and third-party custody law, paternity law and dissolution law. She received her undergraduate degree, summa cum laude, from Canisius College, and her law degree, cum laude, from I.U. Maurer School of Law.

4. Id. at 689 (emphasis in opinion). 5. IC 31-32-11-1. The privileged communication between (1) a husband and wife; (2) a health care provider and the health care providers patient; (3) a: (A) licensed social worker; (B) licensed clinical social worker; (C) licensed marriage and family therapist; (D) licensed mental health counselor; (E) licensed addiction counselor; (F) licensed clinical addiction counselor; and a client described in clauses (A) through (F); (4) a school counselor and a student; or (5) a school psychologist and a student; is not a ground for excluding evidence in any judicial proceeding resulting from a report of a child who may be a victim of child abuse or neglect or relating to the subject matter of the report or failing to report as required by IC 31-33. 6. Indiana State Bar Association Legal Ethics Committee Opinion 2 of 2015; U.S. Department of Health & Human Services, Child Welfare Information Gateway, “Mandatory Reporters of Child Abuse and Neglect.” Accessible at https://www. childwelfare.gov/pubPDFs/manda.pdf#page= 3&view=Privileged Communications (updated through August 2015) 7. IC 31-34-1-1. 8. IC 31-34-1-2. 9. 540 N.E.2d 1263, 1265-66 (Ind. Ct. App. 1989).

Derelle Watson-Duvall joined Kids’ Voice in 1982. She received her law degree from I.U. School of LawIndianapolis. She has practiced law for 38 years. She is a former child welfare

Expertise + Passion = Results Estate & Trust Litigation & Mediation Brian C. Hewitt, Esquire Alerding Castor Hewitt, LLP Indianapolis & Greenwood 317-829-1910 bhewitt@alerdingcastor.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

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By Donald R. Lundberg and Caitlin S. Schroeder

How to handle fixed fees

ETHICS CURBSTONE

H

ow lawyers should handle legal fees implicates three different Rules of Professional Conduct. Rule 1.5 deals with lawyer-client fees and fee agreements. Not only must all lawyer fees be reasonable, fee agreements must meet certain requirements. Rule 1.15 deals with handling money and other property that does not belong to the lawyer. Client payments of money for legal fees and expenses will often require consideration of this rule because it governs how client or third-party property is to be handled. Finally, Rule 1.16(d) addresses, among other things, how client fee payments must be handled at the end of a lawyer-client relationship – regardless of whether it is terminated early or continues until its anticipated conclusion. These rules play an important role in understanding how fixed fees are to be handled.

A nettlesome topic

Donald R. Lundberg Barnes & Thornburg LLP Indianapolis, Ind. donald.lundberg@btlaw.com

Caitlin S. Schroeder Barnes & Thornburg LLP Indianapolis, Ind. Caitlin.Schroeder@btlaw.com

24

How fixed fees for legal work must be handled has been a particularly nettlesome topic. The cases that discuss the topic have created a patchwork of guidance. Lundberg has written on the topic before. “O Canada: The Limited Duty to Refund Fixed Fees,” Vol. 56, No. 9 Res Gestae 29 (May 2013); “Fun With Refundability: When Lawyers Owe Their Clients Money,” Vol. 54, No. 7 Res Gestae 24 (March 2011). Now, the Indiana State Bar Association Legal Ethics Committee has consolidated the guidance about

RES GESTÆ • MAY 2016

how to handle fixed fees into a single, excellent legal ethics opinion. ISBA Legal Ethics Committee Opinion No. 3 of 2015. (Disclosure: Lundberg is a member of the ISBA Legal Ethics Committee). It is available on the State Bar’s website and was published in the September 2015 edition of Res Gestae. It is well worth reading. This column is consistent with the guidance in that opinion.

Fixed fees Many lawyers do legal work on a fixed-fee basis. These are sometimes also called flat fees. A fixed fee is simply a set amount of money charged by the lawyer for handling a defined scope of legal representation regardless of how much work it entails. Usually, but not always, the scope of work is the entire legal representation to conclusion, e.g., $5,000 for handling all trial court proceedings involving a charge of theft. But the defined scope of work can also be broken down so a fixed amount is charged for each of several stages of a single legal representation. Fixed fees, especially when paid in advance, can be attractive to lawyers, especially in the criminal defense arena, because at the end of the case the client might be unable or unmotivated to pay the fee. From the client’s perspective, a fixed fee gives certainty to the cost of legal representation. The client is free to make choices about the representation unburdened by cost considerations. Fixed fees, like all attorney fees, must be reasonable. The reasonableness of a fee is assessed according to the eight factors set out in Rule 1.5(a). But more than anything, fees are controlled by the market forces of supply and demand. Some lawyers can command higher fees because of their

reputation, skill and effectiveness. But in the end, to stay in business, lawyers have to remain competitive with their peers, and the market tends to keep fees within the range of reasonableness. Setting a fixed fee can be a challenge because one doesn’t know at the outset of the representation how much work the representation will involve. Often market forces will influence price, but the lawyer must also apply sound judgment in pricing fixed-fee legal work so that it’s generally profitable. For example, most criminal cases end up being resolved by plea agreements. Yet, there is always the case that cannot be settled by a plea agreement and must go to trial. Within the framework of reasonable fixed fees, there is still an inevitable degree of cross-subsidization that occurs among fixed-fee cases. Fixed fees charged for cases that conclude with early plea agreements are more profitable than cases that have to be tried, which will be either less profitable or outright financial losers. The theory is that at the end of the day the lawyer’s work as a whole is profitable enough to at least stay in business.

Pay now or pay later Whether the client pays the fixed fee in advance or after the defined scope of work is completed is a matter of contract between lawyer and client. The lawyer will usually want to be paid in advance to eliminate the risk that when the work is done the client will be unwilling or unable to pay the agreed fee. The client might prefer to pay the agreed fee after the work is done so the client has some assurance that the work is done to the client’s satisfaction. There is no right or wrong way to handle the timing of payment, but usually the lawyer will insist on having the security of payment in advance.


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If the client pays after the work is done, the question of how the fee payment is to be handled is easy: The lawyer has clearly earned the fee; the payment belongs to the lawyer; and it does not belong in the lawyer’s trust account. If the client pays in advance, the question of how the fee is to be handled is more complicated and should be expressly discussed at the outset of representation. The client might say, with considerable justification, that because the lawyer has not done the work at the time the fee is paid, the lawyer has not earned the fee, and it must be kept in trust until the work is complete. A hybrid approach might be that the advance payment of a fixed fee must be put into trust and taken out in specified amounts as the lawyer achieves certain milestones in the handling of the case. Alternatively, the client might agree that the fee is earned upon receipt, in which case the fee may be deposited in the lawyer’s operating account. So, let’s consider the typical fixed-fee case. The lawyer charges the client a fixed fee to be paid in advance for handling a defined legal matter from beginning to end regardless of how simple or complex the matter turns out to be. Three questions arise: First, what should the fee agreement say? Second, what should the lawyer do with the fee? And third, what happens if the anticipated work is not completed?

done the work. With the money held in trust, the client will have confidence that the money will be there to be refunded if the lawyer abandons the case or the client loses confidence in the lawyer and discharges him. The lawyer probably will see it differently and believe that the advance fee payment is necessary cash flow to keep his practice afloat and fair compensa-

P

tion for committing future time to handling the client’s legal matter. Whichever it is, the lawyer and client should not have different understandings. The fundamentally ambiguous nature of fixed fees paid in advance makes it imperative that lawyers who charge fixed fees reach a clear understanding with their

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Earned or to be earned First, the fee agreement must account for the ambiguity that surrounds whether the lawyer owns the fixed fee when the client pays it or whether it is not yet the lawyer’s money because the lawyer has not done the work yet. The client might think the fixed fee should be kept in trust because the lawyer has not yet

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ETHICS CURBSTONE continued from page 25 clients about how the fee payment will be handled. In every case, not just fixed-fee representations, “[t]he scope of representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation … .” Rule 1.5(b). When it comes to something as fundamental as deciding when the lawyer has earned an advance, fixed fee, it is important that it be addressed in the fee agreement. There is no right or wrong as to whether it is considered fully earned when paid; it is simply a matter of clearly expressing the understanding with the client. While we’re on the topic of fee agreements, only contingent fee agreements must be in a writing signed by the client. Rule 1.5(b). No other fee agreements have to be in writing, but they are encouraged, and it is simply good practice to have a written understanding with the client about the scope of representation and basis for the fee so that the lawyer and client have only one place to turn if a fee dispute arises.

If the fixed-fee agreement contemplates that the lawyer has not earned the fee until the work (or some defined portion of the work) has been completed, the fixed fee, when paid, has not yet been earned by the lawyer and must be deposited into trust until the event occurs that triggers the lawyer’s contractual right to claim the fee or some portion of it as his own.

In the more common arrangement, the fee agreement will establish that the lawyer has earned the fee at the time of payment. In that event, the lawyer may not only deposit the funds into the firm operating account, he must do so and not deposit the funds into the trust account because they belong (continued on page 28)

Where to deposit the fee It is the understanding between the lawyer and client about when the fee is earned that will drive the answer to the next question: What should the lawyer do with the client’s fee payment? In discussing the law of other jurisdictions related to how flat fees may be handled, our Supreme Court emphasized that the lawyer’s ability to treat the fee payment as belonging to the lawyer at the time of payment turns on whether the client has agreed to the arrangement. Matter of Kendall, 804 N.E.2d 1152, 1157-58 (Ind. 2004).

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ETHICS CURBSTONE continued from page 27 to the lawyer, not the client. That said, considering the fee earned when paid is something of a misnomer because, as we will see, if the representation is not completed as contemplated, the lawyer will not be viewed as having earned the entire fee and will be responsible for refunding some portion of it to the client. Thus, the fee is earned in the sense that the lawyer is free to spend it as his own money, but circumstances might arise that will cause some portion of the fee to be considered unearned and subject to prompt refund. The importance of a clear fee understanding with the client cannot be overemphasized, yet it is often overlooked in fixed-fee cases. It is improper for the lawyer’s fixed-fee agreement to fail to address when the lawyer has earned the fee payment because that point will dictate whether the client’s fee payment initially goes into trust until earned or instead goes into the lawyer’s operating account.

Premature termination of representation While it is important for both the lawyer and client to know where the client’s fee payment will be deposited, in the vast majority of cases, the distinction does not become an issue because the lawyer completes the legal services as contemplated and earns the entire fee. However, when the lawyer has earned the fee becomes significant if the lawyer does not complete the contemplated legal services. A lawyer can fail to complete the contemplated services for any number of reasons, sometimes because the lawyer has decided to terminate the representation, other times because the client has discharged the lawyer. The lawyer might have to terminate a representation early if a conflict of interest arises that could not have been 28

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anticipated at the outset of the representation or if developments in the lawyer’s personal life make him unable to continue with the representation. See, generally, Rules 1.16(a) and (b) for the reasons when a lawyer must or may withdraw from a client representation. On the other hand, it might be the client who loses confidence in the lawyer’s representation or simply decides to make a change, discharging the lawyer. Regardless of who initiates the early termination of the lawyerclient relationship, the lawyer who cannot complete a representation owes the client a refund of some portion of the fee. If the fee agreement itself does not address how a fee refund is to be calculated if the relationship ends prematurely, equity determines the amount of refund owed to the client under the principle of quantum meruit. So long as the methodology is reasonable, a lawyer can build a contractual provision into his fee agreement for calculating the lawyer’s fee if the representation cannot be completed. Four Winds, LLC v. Smith & DeBonis, LLC, 854 N.E.2d 70 (Ind. Ct. App. 2006). Under most conditions, when a fixed-fee legal representation ends before it is completed, the lawyer will owe the client some sort of fee refund, whether determined using equitable principles or a reasonable contractual refund provision. If the representation is all but complete at the time of termination, the lawyer might owe the client a small refund or in relatively rare cases might even be allowed to keep the entire fee if doing so is fair. See Matter of Canada, 986 N.E.2d 254 (Ind. 2013).

Refunding unearned fees

agreement. If the fee agreement with the client was that the fixed fee was not earned until the end of the representation, the refund will be paid to the client from the fee being held in trust. The portion that was equitably or contractually earned will be transferred from trust to the lawyer’s operating account. If, as in the typical case, the fee agreement denominated the fixed fee as having been earned upon receipt, the lawyer will be obligated to refund the unearned portion of the fee from the lawyer’s own funds. See Rule 1.16(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as … refunding any advance payment of fee or expenses that has not been earned or incurred.”) In a case where the fixed fee was earned when paid, if the repre-

sentation terminates prematurely, the refund obligation might be a challenge if the lawyer has already spent the fee (which he was entitled to do). This is something lawyers should plan for by having adequate liquidity to be able to promptly refund unearned fees if they have to withdraw early from a client’s case. Opinion No. 3 of 2015 gives sound advice to lawyers who do fixed-fee work. The lynchpin for how fixed fees are handled will always be the fee agreement the lawyer and client structure at the outset of the representation. The lawyer who stops after quoting a fixed dollar amount for a legal representation has not done enough. Having a clear understanding with the client, in writing if possible, describing when the lawyer has earned the fee and acting according to that understanding, is critical to handling fixed fees correctly.

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By Kathy L. Osborn and Andrea K. Townsend

Appellate civil case law update

SUPREME COURT OPINIONS Quasi-judicial immunity depends on nature of function performed, not identity of performer A determination of quasi-judicial immunity requires an inquiry into the nature of the function performed, not the identity of the performer. Thornton v. State, Ind. Dept. of Corr., 43 N.E.3d 585 (Dec. 22) (per curiam). Plaintiff Thornton brought a 42 U.S.C. §1983 claim against four individual probation officers, a claim arising out of his incarceration for a probation violation that allegedly occurred after his term of probation had expired. Contending Thornton’s claim was barred by the statute of limitations, the defendants moved to dismiss Thornton’s §1983 claim pursuant to Indiana Trial Rule 12(B)(6). The trial court summarily granted the defendants’ motion, and the Court of Appeals affirmed on grounds assuming the claims were timely filed. Granting transfer, the Indiana Supreme Court reversed and remanded the dismissal of Thornton’s §1983 claim. The Court reasoned that 42 U.S.C. §1983

required only two allegations: (1) that some person acted under the color of state law and (2) deprived the claimant of a federal right. As Thornton’s complaint did allege that the defendants, Marion County probation officials, unconstitutionally deprived him of liberty and violated due process, the Court found Thornton’s complaint stated a claim for relief under 42 U.S.C. §1983. The Court noted the defendants did not assert their statute of limitations argument on transfer and found the record insufficient to determine whether the quasijudicial immunity applied. The Court otherwise summarily affirmed the Court of Appeals decision.

Where form of payment is not specified, Indiana law mandates either cash or its equivalent Under an employment contract requiring payment, an employer failed to satisfy its obligation with tender of a subordinate promissory note. AM Gen. LLC v. Armour, 46 N.E.3d 436 (Dec. 16) (David, J., in which Rush, C.J., and Dickson, Rucker and Massa, JJ., concur). Upon retirement in early 2012, Armour’s employment contract with AM General entitled him to a lump sum payment of a longterm incentive plan (“LTIP”) on or about Jan. 20, 2012. Instead of a lump sum payment, AM General sent Armour quarterly installment payments in the form of checks, which Armour accepted. In December 2012, AM General attempted to make the final installment payment with a promissory note, providing that acceptance would function to release AM General from its obligations under the LTIP provision. The promissory note was burdened by other various conditions in that the note was not due until three years after the LTIP payments were due, was unsecured

and subordinate to other debts owed by AM General, and could be transferred only upon certain conditions. Armour promptly rejected the promissory note, requiring full payment of the LTIP. After Armour demanded payment of all amounts owed under the employment contract, AM General filed a complaint, seeking declaratory judgment that it had not breached the LTIP provision. Armour counterclaimed and subsequently sought summary judgment. Entering an order in favor of Armour, the trial court concluded that the plain meaning of “pay” or “payment” is “to exchange cash or the cash equivalent for goods or services” and that the promissory note could not be construed as cash or cash equivalent. The court ordered AM General to pay Armour the remaining balance LTIP payments, including prejudgment interest calculated from Jan. 20, 2012, the date payment was due under the employment contract. On appeal, the parties disputed whether the term “pay” within the employment contract was ambiguous. AM General Kathy L. Osborn contended that, because Faegre Baker Daniels LLP the form of payment Indianapolis, Ind. was not specified in the kathy.osborn@FaegreBD.com employment contract, the term “pay” was ambiguous. In response, Armour argued that the meaning of “pay” presented a question of law. With regard to the calculation of prejudgment interest, AM General contended interest should be calculated from Dec. 31, 2012, not Jan. 20, 2012, because Armour had agreed orally Andrea K. Townsend Faegre Baker Daniels LLP to accept LTIP payments Indianapolis, Ind.

RECENT DECISIONS 12/15

I

n December, the Indiana Supreme Court issued five opinions in civil matters, simultaneously granting transfer in two of those cases, and granted transfer in two additional civil matters, all summarized below. The Indiana Court of Appeals issued a total of 79 opinions in civil and administrative matters, including 42 memorandum decisions. Some of the Court of Appeals published opinions are summarized below. Full text of all Indiana appellate court decisions rendered during December, including memorandum decisions, are available via Casemaker at www.inbar.org or on the Indiana Courts website, www.in.gov/judiciary/opinions.

(continued on page 32)

andrea.townsend@FaegreBD.com

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RECENT DECISIONS 12/15 continued from page 31 in quarterly installments and in fact had accepted three installment payments. A split Court of Appeals reversed the trial court, finding a genuine issue of material fact as to how “payment” could be made under the LTIP provision.

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The Indiana Supreme Court agreed with the trial court, affirming its grant of summary judgment and reinstating Armour’s award. The Court found as a matter of law that AM General was required to make the LTIP payment in cash or its equivalent, observing that Indiana precedent requires payment in cash or its equivalent where the form of payment is not specified in a contract. The Court further found, as a matter of law, that the promissory note was not a cash equivalent but merely a conditional promise to pay with various limitations placed upon receiving payment of the principal amount and thereby “starkly distinguishable” from a cash payment. With regard to the calculation of prejudgment interest, the Court rejected AM General’s argument, noting the employment contract specifically provided that any modifications must be in a writing signed by the parties and that the failure of either party to insist upon the strict performance of any of the terms was not to be construed as a waiver.

Teacher’s termination statute does not apply to termination of administrator In a case of first impression, the Court held that Indiana’s teacher’s termination statute, Ind. Code §20-28-7.5-1, et seq., does not apply to the termination of an administrator when his underlying teaching contract is not terminated. Hewitt v. Westfield Washington Sch. Corp., 46 N.E.3d 425 (Dec. 15) (David, J., in which Rush, C.J., and


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Dickson, Rucker and Massa, JJ., concur). In July 2011, Jeffrey Hewitt signed a contract to be an elementary school principal with the Westfield Washington School Corporation. Hewitt’s contract was the regular teacher’s contract used throughout Indiana, except that the contract was limited to a two-year term and specified that Hewitt would serve as principal. In December 2011, the Westfield Washington Board of School Trustees terminated Hewitt after the Board learned that Hewitt had been involved in a sexual relationship with a teacher, one of his subordinates. After a failed attempt to have Hewitt resign effective immediately, the Board sent Hewitt a letter dated Dec. 22, 2011, explaining that a preliminary recommendation was being made to the Board to have Hewitt’s employment as an administrator terminated, effectively immediately. The letter explained Hewitt could request a private conference with the Board regarding the recommendation and that Hewitt would be allowed to bring counsel and would be able to respond. Hewitt responded in a letter dated Dec. 26, 2011, requesting a private conference before the Board and requesting identification of the Indiana Code provision under which this action was taken. Counsel responded that no statute applied to a private conference for cancellation of an administrator’s contract. Hewitt filed a complaint against the Westfield Washington School Corporation, the Board and various named individuals (collectively, the “School Corporation”). The trial court granted summary judgment for the School Corporation on Hewitt’s breach of contract and denial of due process claims, and denied Hewitt’s motion for partial summary judgment. The

Court of Appeals reversed, finding that language in Hewitt’s contract calling for a hearing coupled with the hearing procedures in Indiana’s teacher’s termination statute meant that Hewitt, even though an administrator, was entitled to the same process due to a teacher facing termination.

The Indiana Supreme Court upheld the trial court, determining that because the School Corporation was seeking to terminate Hewitt’s administrator’s contract only, and not his underlying teacher’s contract, Hewitt was not entitled to a (continued on page 34)

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RECENT DECISIONS 12/15 continued from page 33 hearing pursuant to either the teacher’s termination statute or the language in his contract referring to a hearing. To the extent Hewitt’s form teacher’s contract referred to a hearing, such provisions applied only to Hewitt’s underlying teacher’s contract, not his administrator’s contract. First, the plain language in Hewitt’s contract was “subject ... to the provisions of law concerning the employment and dismissal of teachers” and provided “that all laws governing the employment and dismissal of teachers shall be construed as part of this contract.” Second, provisions in the teacher’s termination statute were inconsistent with the interpretation that the procedure for terminating a teacher and a principal were distinct. Third, the Court’s analysis was consistent with prior case law where a teacher was employed as a principal subject to a written contract and the School

Corporation sought to cancel the principal’s contract only. Having determined that Hewitt was not entitled to a hearing under either the teacher’s termination statute or the language in his contract, the Court also held that Hewitt had received constitutional due process. Hewitt was not entirely deprived of all employment, but only his employment in the specific role as principal. It was unclear how additional procedures, such as additional evidence or cross-examination, would have been beneficial to Hewitt when Hewitt had admitted the conduct at issue, namely his sexual relationship with a subordinate. Further, consistent with the Home Rule Act, Ind. Code §20-263 et seq., once Hewitt admitted the conduct, it was up to the School Corporation, which had an interest in maintaining the school system and making the best decision for

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the well-being of its students and their parents and taxpayers, to respond to that conduct. Finally, the record reflected that the School Corporation gave Hewitt sufficient notice and an opportunity to be heard.

A genuine issue of material fact regarding scope and extent of duty will preclude summary judgment Genuine issues of material fact on whether employer should be liable under the theory of respondeat superior precluded summary judgment in Knighten v. East Chicago Housing Auth., 45 N.E.3d 788 (Dec. 8) (Rucker, J., in which Rush, C.J., and Dickson, David and Massa, JJ., concur). While on duty, Donnell Caldwell, a security guard for Davis Security, shot and severely injured Stacy Knighten, a resident of a federal housing complex with whom he was romantically involved. Although the parties disputed the full scope of Caldwell’s duties, the parties agreed that the duties included monitoring traffic entering the housing complex. On Aug. 7, 2010, Caldwell and Knighten had an argument within yards of the guard shack that escalated to Caldwell shooting Knighten in the back. Ultimately, the gunshot injury left Knighten paralyzed from the waist down. Knighten filed a complaint against the East Chicago Housing Authority, Davis Security and Caldwell for Caldwell’s negligent discharge of his firearm and against the Housing Authority and Davis Security for negligent hiring and supervision. The trial court granted summary judgment in favor of Davis Security and the Housing Authority on all claims and denied summary judgment to Knighten. Knighten appealed, challenging only the trial court’s grant of summary judgment for Davis. The


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Court of Appeals affirmed. The Indiana Supreme Court reversed, finding a genuine issue of material fact as to the scope and extent of Caldwell’s duties and responsibilities as an employee of Davis Security, and whether in discharging his weapon Caldwell engaged in conduct consistent with his duties and responsibilities. While Caldwell’s duties included monitoring traffic entering the complex, some of his other duties, for example investigating any known or suspected occurrences of loss, would cause Caldwell out of necessity to abandon his post at the guard shack.

Damages are necessary element in action for denial of insurance coverage Schmidt v. Ind. Ins. Co., 45 N.E.3d 781 (Dec. 2) (Dickson, J., in which Rush, C.J., and Rucker, David and Massa, JJ., concur). By April 2010, residential property owned by Christopher Schmidt had been declared unfit for human habitation and was undergoing cleaning efforts. Schmidt had removed multiple truckloads of debris, but the remediation also required removal of drywall and urine-soaked carpeting and subflooring in the home. The plaintiff contacted Bart Stith, an insurance agent employed by C&F Insurance Group, LLC, an insurance brokerage agency, (collectively, “the Agents”) to procure insurance on the property. The dwelling fire application submitted by the insurance agent did not disclose that the property was vacant, uninhabitable, undergoing renovation and intended for rent (not for Schmidt’s residence), although Schmidt claimed he provided this information to the Agents.

an investigation in February 2011, Indiana Insurance Company, the company that had issued Schmidt’s policy, denied coverage and exercised its right to rescind the policy because it contained material misrepresentations and false statements about the property. Indiana Insurance refunded all premiums paid. In April 2011 the plaintiff initiated this action against the Agents and Indiana Insurance, alleging misrepresentation, forgery, deception and insurance fraud. The Agents and Indiana Insurance filed separate motions for summary judgment. The trial court granted both motions and, finding no just reason for delay, directed entry of judgments for all of the defendants. The plaintiff appealed. The Court of Appeals reversed the grant of summary judgment for the Agents, finding genuine issues of material fact as to whether the

plaintiff told the insurance agent Stith about the condition of the property and whether someone forged his signature on his application. As to summary judgment in favor of Indiana Insurance, the Court of Appeals affirmed, concluding that the insurance company properly relied on the representations of fact in the application. As to Indiana Insurance, the Indiana Supreme Court summarily affirmed the Court of Appeals. As to the Agents, the Court reversed in part the trial court’s entry of summary judgment. The Court directed the entry of partial summary judgment for the Agents with regard to Schmidt’s claim that Agents had failed to accurately report dwelling fire policy information to the insurance company. The Agents had made (continued on page 37)

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RECENT DECISIONS 12/15 continued from page 35 a prima facie showing that Schmidt had suffered no damage because, even if the insurance application had fully disclosed the accurate condition and usage of the property, no dwelling fire insurance policy would have been issued on property that was condemned, uninhabitable, without utilities, vacant and undergoing renovation. And Schmidt failed to designate contrary evidence. The Court, however, reversed summary judgment for the Agents with regard to Schmidt’s claim for negligent failure to procure appropriate insurance. Although Agents had shown that no dwelling fire insurance policy would have been issued for the property, the Agents had failed to exclude the possibility that other types of fire insurance coverage for the property could have been obtained and issued. The Court noted that Schmidt had failed to properly allege this claim in his complaint, raising it only in his response to Agents’ motion for summary judgment in the trial court and in his appellant’s brief. The Court found, however, that “the Agents not only failed to object but also impliedly consented to litigation of the issue, and that the trial court considered the claim.”

tutes a refusal and driver’s equivocal answers to officer’s offered test was a refusal). • Amy Steele-Giri v. Brian K. Steele, 40 N.E.3d 513 (Ind. Ct. App. 2015), (Riley, J.), transfer granted Dec. 4 (determining whether trial court erred in denying mother’s request for modification of custody of minor child).

SELECTED COURT OF APPEALS CASES Expungement statutes apply to the civil context In a case of first impression, the Court of Appeals held that expungement statutes apply to the records of civil forfeiture proceedings. In 2003, defendant D.A. was convicted of dealing in marijuana as a Class C felony and possession of cocaine as a Class C felony, and

had $720 seized by the State in a civil forfeiture action. In 2014, D.A. filed a petition to expunge the records of the convictions, which the trial court granted. Thirteen days later, D.A. requested the trial court to amend its expungement order to include and expunge the records of the civil forfeiture proceeding. After a hearing, the trial court denied D.A.’s request. Concluding the scope of records to be expunged under Ind. Code §3538-9-4(c), namely “all conviction records, including records ... that relate to the person’s felony conviction,” was ambiguous, the Court of Appeals reasoned that the statute required expungement of both a person’s “conviction records” and any other records “that relate to the person’s felony conviction.” Here, (continued on page 38)

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TRANSFER GRANTS In addition to two published opinions above in which transfer was granted with opinion, Thornton v. State, Ind. Dept. of Correction, 43 N.E.3d 585 (Dec. 22), and Knighten v. East Chicago Housing Authority, 45 N.E.3d 788 (Dec. 8), the Court also granted transfer in the following cases: • Kristy Burnell v. State of Indiana, 44 N.E.3d 771 (Ind. Ct. App. 2015), (Pyle, J.), transfer granted Dec. 17 (addressing whether, as a matter of first impression, anything short of an unqualified, unequivocal assent to a properly offered chemical test consti-

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continued from page 37 the Court of Appeals found a civil forfeiture ancillary to and premised on the same criminal activity underlying D.A.’s convictions, and thus related to the felony convictions. Accordingly, D.A. was entitled to have the records of his civil forfeiture expunged along with the records of his underlying convictions. D.A. v. State, ___ N.E.3d ___, No. 48A02-1504-MI-215, 2015 WL 9589761 (Dec. 31) (Najam, J.).

Physician’s duty of care may extend to patients never seen In an interlocutory appeal of a tort case, the Court of Appeals held as a matter of law that a physician who enters into a Collaborative Practice Agreement (CPA) with a nurse practitioner has a duty of reasonable care to the nurse practitioner’s patients in fulfilling his or her obligations under the CPA – regardless of whether the physician ever directly treated the patient or reviewed the patient’s medical records. In the case at issue, under the CPA, the physician had a duty to review at least 5 percent of the nurse practitioner’s charts on a weekly basis to evaluate the nurse practitioner’s prescriptive practices. The physician admittedly never complied with those requirements, although he did engage in a limited review. This limited review had caused the physician concern with the nurse practitioner’s narcotics prescribing practices, but the physician never followed up on his suggestions or took any steps to terminate the CPA. The Court of Appeals emphasized that its decision was not to hold that physicians were the guarantors of nurse practitioners pursuant to a CPA but rather to hold that physicians have a duty of reasonable care to the patients of nurse practitioners


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in complying with the terms of the CPA. Collip v. Ratts, ___ N.E.3d ___, No. 49A05-1501-CT-1, 2015 WL 9589777 (Dec. 31) (Baker, J.).

so “firmly rooted in the prebankruptcy past such that the claim constituted property of [the] bankruptcy estate” under 11 U.S.C. §541. Failure to list the claim among the list of assets precluded the former client from pursuing the claim. Dotlich v. Tucker Hester, ___ N.E.3d ___, No. 29A02-1503-CC-125, 2015 WL 9587548 (Dec. 31) (Brown, J.).

A claim for malpractice in filing of bankruptcy petition is property of bankruptcy estate In an action brought by a law firm against a former client to recover amounts owed as a result of firm’s representation of the client in a Chapter 7 voluntary bankruptcy case, the former client counterclaimed, alleging malpractice in the filing of the bankruptcy petition. The Court of Appeals affirmed the trial court’s entry of summary judgment in favor of the law firm, holding the former client was judicially estopped from pursing his malpractice claim because the claim arose with the filing of the bankruptcy petition and was

IN

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Kathy L. Osborn, Indianapolis, is a partner at Faegre Baker Daniels and practices in the areas of business, antitrust and appellate litigation. She is a three-time graduate of Indiana University, B.S. Biology, magna cum laude, B.A. Religious Studies, summa cum laude, and J.D. with a Gender Studies minor, magna cum laude and Order of the Coif. After graduating from Indiana University School of Law,

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Andrea K. Townsend, Indianapolis, is an associate in the business litigation practice group at Faegre Baker Daniels, focusing on civil litigation and appellate advocacy. She is a graduate of the University of Notre Dame, B.B.A. Accounting, summa cum laude and valedictorian candidate, and the Indiana University Robert H. McKinney School of Law, J.D., summa cum laude and recipient of the Faculty Prize. After law school, she served as a law clerk in the Indiana Supreme Court to Justice Brent E. Dickson. Contact Andrea at 317/237-1141 or andrea.townsend @FaegreBD.com.

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she served as a law clerk in the Indiana Supreme Court to former Associate Justices Frank Sullivan Jr. and Myra C. Selby. Contact Kathy at 317/237-8261 or kathy.osborn@FaegreBD.com.

O CIA

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By Sharon D. Nelson and John W. Simek

The Future of the Professions: How Technology Will Transform the Work of Human Experts

BOOK REVIEW

N

o one would describe The Future of the Professions as a “light & frothy summer read.” We are huge fans of author Richard Susskind’s previous books and his evolving thoughts about the future of the legal profession. In this book, he and son Daniel, a lecturer in economics at Oxford University, look across all the professions to see what the future might hold, observing many commonalities in that future. For us, there is a kind of complex crystal ball embedded in this book, and attorneys would be well advised to heed the Susskinds’ view of the future, which we find extremely compelling. Both of us can rip through our beloved murder mysteries in a single sitting, but this book deserves much more. It is best read (we think) in 30- to 45-minute segments with pauses to digest what you’ve read and to reflect upon your own thinking. The primary criticism of this book (and its predecessors) is that it represents “doom and gloom.” In some respects, that is true. The authors do indeed believe that a radical shift is coming and that the unprepared may not fare well if they don’t change their thinking. If some form of Armageddon is coming, protesting its coming is hardly helpful, though it is often a first response. (Spoiler: There are rays of hope, as the authors are keen to point out.) Though the book tackles all of the professions, this review is written from a legal perspective because we live in the legal world. We will try to track the book itself, which begins by describing the “grand bargain.” Fundamentally, this is the “bargain” in which those with

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special knowledge and expertise are granted a monopoly over certain services with hallmarks including specialized training, self-regulation, the issuance of a license and an adherence to ethical standards. Now that’s our over-simplified definition of the term, which the Susskinds set forth far more comprehensively in their book. They believe that lawyers (and others) have breached the grand bargain in large part by protecting their monopoly and providing services at a price point that is beyond the reach of the average person. This leads to a charge of protectionism with which all lawyers are familiar. Speaking cynically, the public sees self-regulation in the profession of law as the fox guarding the henhouse – or as the book’s authors more charmingly phrase it: “Are we asking the rabbit to guard the lettuce patch?” The days of the country lawyer who is revered for his/her service to the community are probably over. The public cannot help but see the extent to which profit is the measure of success in law firms. Legal fees have steadily increased, and lawyers are a luxury that most cannot afford. As the Susskinds say, “We seem to have a Rolls-Royce service for the well-heeled minority while everyone else is walking.” And there you go. Access to justice is denied to so many – and the situation is worsening. The book calls for a new mindset and suggests that “[b]y and large, our professions are unaffordable, under-exploiting technology, disempowering, ethically challengeable, underperforming and inscrutable.” They note that these are not trivial charges, but it is our sense that the public at large would agree with this description.

The book goes through some of the modern changes to the legal profession, including liberalization and alternative business structures in England and Australia (but still anathema to most American lawyers) as well as new legal service providers, including companies that offer customers contract lawyers on an “as needed” basis. Contract lawyers are being utilized on a regular basis now, even by large law firms. We have increasing unbundled legal services, priced them at a fixed fee, outsourced them (including offshore) and delegated them at times to paralegals. Online services, such as LegalZoom, Rocket Lawyer and Avvo, continue to grow – as do online dispute resolution services and virtual courts. Much of the change is technology-driven. As the authors note, “The future of legal services is unlikely to look like John Grisham or Rumpole of the Bailey” – who will in large part be “replaced by advanced systems or by less costly workers supported by technology or standard processes, or by law people armed with online self-help tools.” The book looks to a postprofessional world. We hear all the time, “I just want to make it to retirement” (or “hang up their boots” as the Susskinds put it). Lawyers of a certain age who feel unable to keep up with the changes are simply unwilling to try to adapt to a technology-driven practice of law. Sadly, we have seen many who have resigned themselves to extinction. The book extensively explores the impact of technology on the law and other professions. Innovative systems can provide access to legal knowledge at a much lower cost – and the authors show that there was


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a huge latent demand for legal services at an affordable cost. Clearly, new providers have found a way to reach those people – and the most disquieting part of this to us is how clearly the success of those providers has demonstrated the failure of the legal profession to provide meaningful access to legal services to the majority of Americans. The Susskinds do not suggest that alternative legal service providers necessarily be unregulated. In fact, they clearly state that they believe in more proportionate regulation, a path that the ABA appeared to be haltingly walking down at the August 2016 meeting of the House of Delegates, which adopted Resolution 105, Model Regulatory Objectives for the Provision of Legal Services. Reading The Future of the Professions closely will help all lawyers determine how important it is to be flexible and innovative in thinking about the future of law practice. The book suggests that we need to “race with the machines” rather than fight against them (surely a losing battle). As the book notes, machines are becoming increasingly capable. There is a fascinating discussion of the second generation of artificial intelligence that examines the ongoing development of IBM’s Watson and its deployment in a host of professions, including the legal profession. One day, in the not-too-distant future, it may shock us that people actually used to do things in a law office that machines can routinely do. The Susskinds comment with humor that one day people will be shocked that people actually used to drive cars. Undoubtedly true. While the book acknowledges that it is not possible to predict the future with great specificity as to actions and timing, the past allows

us to extrapolate the direction of change in the legal profession and even to make certain likely conclusions about what the future may look like. What we know for sure (emphasized by the rapidity of technological change) is that “no change” is not an option for our future. Do they look toward a “big bang” transformation? No, but they don’t expect the transformation to be leisurely either. They foresee “incremental transformation,” which indeed we have been seeing over the last several decades. And they see less and less work that machines cannot do, resulting in what they call “technological unemployment” across all professions. Is it a certain amount of work to read this book, which tackles a complex subject in great depth? Assuredly, but well worth the effort. The authors take great pain to leaven their research with colorful quotes and statistics from others and to translate the complex subjects into more digestible and sometimes humorous tidbits.

For us, the bottom-line message of this book was encapsulated in this quote: “For the professions, there is no way of softening the blow. Decades from now, today’s professions will play a much less prominent role in society.” We imagine we hear many lawyers gulping just reading those words. The prophecy is very likely true – and the best way to prepare for the future is to understand it. Lawyers are not condemned to extinction – unless they refuse to evolve. Reading The Future of the Professions is an excellent way to begin that process of evolution. © 2016 Sensei Enterprises, Inc.

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.

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RES GESTÆ • MAY 2016

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By Jack Kenney

Hearsay, insufficient evidence, restitution, other holdings

I CRIMINAL JUSTICE NOTES 1/16

n January, the Indiana Supreme Court issued opinions on jury instructions in burglary cases and the statement-against-interest exception to the hearsay rule, while the Court of Appeals decided cases involving proximate cause, inventory searches and restitution.

42

Burglary – improper instruction defining dwelling In Keller v. State, 47 N.E.2d 1205 (Ind. 2016), the trial court abused its discretion by giving, over objection, an instruction that expanded the statutory definition of a “dwelling” for purposes of Class B felony burglary, included misleading language and invaded the province of the jury. Shane Keller was charged with Class B felony burglary for breaking and entering into a vacant farmhouse. The parties disputed whether the burglarized vacant farmhouse was a “dwelling” for purposes of the Class B felony enhancement. A “dwelling” is defined by statute as “a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person’s home or place of lodging.” See Ind. Code §35-31.5-2-107. Over objection, the trial court instructed the jury not only on the statutory definition, but also that “any such place where a person keeps personal items with the intent to reside in the near future is considered a dwelling.” By adding this language, the challenged final instruction amplified the statutory definition of a dwelling by telling the jury that the definition would be satisfied by Jack Kenney a specific set of facts Director of Research not identified by the & Publications statute. Thus, the Indiana Public Court reversed Keller’s Defender Council Indianapolis, Ind. convictions and jkenney@pdc.in.gov remanded to enter RES GESTÆ • MAY 2016

judgment for two Class C felony burglary convictions and to resentence Keller accordingly. Justice Massa, in an opinion joined by Chief Justice Rush, dissented on the basis that the instruction language did not constitute reversible error.

Murder victim’s hearsay testimony admissible as statement against interest In Beasley v. State, 46 N.E.3d 1232 (Ind. 2016), the trial court did not abuse its discretion in admitting the attempted murder victim’s (Gerald Beamon’s) hearsay testimony regarding statements the murder victim (James Allen) made to him on the day he died. Beamon testified that Allen told him he had shot the defendant during a fight the day before the crime. Allen’s recount of his altercation with the defendant fell within the hearsay exception of Indiana Evidence Rule 804(b)(3), as admitting to such a violent act “had so great a tendency ... to expose” him to civil or criminal liability such that “a reasonable person in [Allen’s] position would have made [the statement] only if the person believed it to be true.” Id. at 1236. In both Jervis v. State, 679 N.E.2d 875 (Ind. 1997), and Camm v. State, 908 N.E.2d 215, 220 (Ind. 2009), the declarants’ statements sought to be admitted (one referencing dumping off a woman and the other having bodies on one’s conscience) were vague and subject to interpretation. Id. at 1237. Here, there is no such ambiguity. “Allen gave Beamon a precise account of his altercation with the defendant, and stated in no uncertain terms that he shot the defendant in the face.” Id. Even if Allen believed the shooting was justified as a matter of self-defense, it does not necessarily follow that Allen believed there was no possibility of future civil or criminal liability for the act. Id.

The Court also found the statements were sufficiently supported by corroborating evidence, which is not strictly required by Ind. R. Evid. 804(b)(3) but is by Fed. R. Evid. 804(b)(3). Id. at 1238.

Insufficient evidence police officer’s injuries were proximately caused by defendant’s actions In Moore v. State, No. 49A021505-CR-321 (Ind. Ct. App. Jan. 29, 2016), the Court of Appeals reversed Willie Moore’s Level 6 felony resisting law enforcement conviction because there was insufficient evidence his fleeing caused injury to the police officer chasing him. The officer fell and suffered a partially torn tendon in his left shoulder. Id., slip op. at 5. Relying upon Whaley v. State, 843 N.E.2d 1 (Ind. Ct. App. 2006), Smith v. State, 21 N.E.3d 121 (Ind. Ct. App. 2014) and Abney v. State, 766 N.E.2d 1175 (Ind. 2002), the court concluded Moore was not the proximate cause of the officer’s injury, nor did he put the officer in a situation where his only option was injury. Moore v. State, slip op. at 20-24. While the officer would not have received his injury if he had not pursued Moore, that fact is only sufficient to prove that Moore was a contributing cause of the injury – i.e., “a factor that – though not the primary cause – plays a part in producing a result.” Id. at 24 (quoting Abney, 766 N.E.2d at 1178). While it may be possible for a defendant fleeing from an officer to be a proximate, as well as contributing, cause of that officer’s resulting injuries, the evidence did not support a finding of proximate cause here. In addition to the fact that there was no evidence in the record of the actual cause of the officer’s fall, Moore, unlike Whaley, did not put the officer in a position “where his only option was to suffer injury.” Id.


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The court reversed in part to reduce Moore’s resisting law enforcement conviction to a Class A misdemeanor. Judge Bradford, dissenting, believes that the trier of fact could reasonably form the inference that Moore’s act of fleeing was the proximate cause of the officer’s injury. “In addition, it is not unreasonable to anticipate that a consequence of fleeing from the police would be that an officer could fall and be injured during the ensuing chase.” Id. at 28.

ically outlines what must be done with regard to ‘inventory’ that is recovered during an inventory search.” Id. at 10. Judge Crone, dissenting, noted the officer’s testimony described the purpose of the inventory, outlined the procedures used to conduct it, and established that the

Indianapolis Metropolitan Police Department policy authorizes onsite inventory searches. Id. at 13. There is no evidence that the officer was rummaging around in the car to find incriminating evidence. The dissent also noted that it was (continued on page 44)

Insufficient evidence of police procedure and compliance to justify inventory search In Rhodes v. State, No. 49A021503-CR-173 (Ind. Ct. App. Jan. 19, 2016), the trial court abused its discretion in admitting marijuana found in Chauncy Rhodes’ car during an inventory search at the scene of his arrest for driving while suspended. The arresting officer did not record everything he discovered during the search, but did note marijuana found in a red metal grinder in the glove box. Id., slip op. at 2-3. Distinguishing Faust v. State, 804 N.E.2d 1242 (Ind. Ct. App. 2004) and Wilford v. State, 31 N.E.3d 1023 (Ind. Ct. App. 2015), the court held that the officer’s testimony was insufficient to prove the inventory search he performed of Rhodes’ vehicle complied with official police policy. Id., slip op. at 7-9. Because the State did not present evidence of police procedure, the search violated Rhodes’ Fourth Amendment protection from unreasonable search and seizure. The court reversed his conviction for possession of marijuana. Judge Barnes issued a concurring opinion to note there was no evidence of any effort made to comply with constitutional and statutory requirements in this case. See Ind. Code §35-33-5-5(a), “which specif-

California Matters If you have matters in California or referrals, we can help you. Please contact Guy Kornblum or his office for information. In addition to litigation and dispute resolution services, Guy also serves as an expert witness in legal malpractice and cases relating to insurance claims. Guy is a native Hoosier and alumnus of Indiana University. He is a member of the Indiana and California bars, and certified in Civil Trial & Pretrial Practice Advocacy by the National Board of Trial Advocacy.

Kornblum, Cochran, Erickson & Harbison, LLP 1388 Sutter St., Suite 820, San Francisco, CA 94109 Guy Kornblum is also available as a mediator.

Tel: 415.440.7800 • Fax: 415.440.7898 gkornblum@kcehlaw.com

Serious personal injury & wrongful death • Insurance coverage & bad faith Professional liability • Business disputes • General civil litigation For further discussion, contact David McNamar, of counsel to the firm, at dfmcnamar@mcnamarlaw.com or 317.299.0160.

www.kcehlaw.com RES GESTÆ • MAY 2016

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CRIMINAL JUSTICE NOTES 1/16 continued from page 43 reasonable to decide to impound the vehicle because the car was parked in the “driveway of a private residence” and someone in the residence wanted “to make sure that the car was not going to be left in the driveway.” Id. at 14.

Possession of firearm as a serious violent felon (SVF) – Ohio burglary conviction not substantially similar to Indiana In State v. Hancock, No. 39A05-1506-CR-633 (Ind. Ct. App. Jan. 22, 2016), the trial court properly dismissed Frank Hancock’s Level 4 felony possession of a firearm by a serious violent felon (SVF) charges after it determined that the elements of the Ohio and Indiana residential burglary statutes were not “substantially similar” as required by Ind. Code §35-474-5(a)(1)(B). The possession by a SVF charge alleged Hancock was a SVF under Ind. Code §35-47-4-5 because he was convicted in Ohio of second-degree burglary in 2004. Id., slip op. at 2. The Ohio statute is much broader, requiring trespass “by force, stealth, or deception with the purpose to commit any criminal offense,” whereas the Indiana statute requires a person to break and enter into a building or structure with the intent to commit a felony or theft. Id. at 5. The Court of Appeals rejected the State’s argument that the elements of the Ohio and Indiana statutes were “functionally equivalent,” noting different possible legal outcomes depending on whether the incident occurred in Ohio or Indiana. Id. at 5-6. Thus, Hancock was not a serious violent felon because his prior conviction for residential burglary in Ohio was not substantially similar as a matter of law to residential burglary in Indiana.

44

RES GESTÆ • MAY 2016

Erroneous restitution order Restitution orders must reflect the loss sustained by the victim “as a direct and immediate result” of the defendant’s criminal acts. See Rich v. State, 890 N.E.2d 44, 51 (Ind. Ct. App. 2008). In Morgan v. State, No. 34A05-1509-CR-1323 (Ind. Ct. App. Jan. 29, 2016), after Kimberly Morgan pled guilty to three counts of theft, the trial court erroneously ordered her to pay $16,000 restitution to her exemployer, the Howard County Convention & Visitors Commission, as a condition of probation. She was also ordered to pay an insurance company $11,455.52, but this payment was not made a condition of probation. Id. slip op. at 3-4. Although the trial court properly concluded that Morgan was to pay restitution to the insurance company, to the extent that the restitution order provided for restitution to the Visitors Commission in excess of the $250 deductible, it was an abuse of discretion. Id. at 5-6. The additional expenditure ordered for a “deep dive” audit was likewise improper. Id. at 6. The court reversed and remanded with instructions to enter a restitution order for the payment of $11,455.48 to Selective Insurance and $250 to the Visitors Commission. Id.

CLASSIFIEDS Employment Opportunities

SMALL Indianapolis law firm seeks associate with 3+ years of litigation experience. Real estate, construction and contract law experience is desirable. Ideal candidate will be selfmotivated, organized and efficient. Send résumé to P.O. Box 2606, Indianapolis, IN 46206-2606.

ESTATE ATTORNEY: The Fort Wayne firm of Rothberg Logan & Warsco seeks experienced legal counsel to join our team to work in an active estate planning, probate and business succession practice. Salary and partnership consideration commensurate with experience. Send expressions of interest and résumés to Lori Lawson, Human Resources & Marketing Director, 505 E. Washington Blvd., Fort Wayne, IN 46802 and llawson@rlwlawfirm.com. FULL-TIME ASSOCIATE ATTORNEY to join Perry Law Office, PC, a 3-attorney Fort Wayne law firm. Experience in collections, Social Security disability, estates and elder law is a plus but not required. Please send résumé to resumes@perryoffice.net.

REMINGER CO., LPA, is seeking attorneys with 4-8 years of experience in civil defense for its office in Crown Point, Ind. Interested candidates must have experience in insurance defense. Medical malpractice defense, general liability and/or transportation defense are also preferred as well as trial experience. Partnership-level attorneys will also be considered. Please send résumé in confidence to Sharon Blaszak at sblaszak@reminger.com.

Employment Desired

ISBA members: Update your addresses email & postal online at www.inbar.org

HERE'S MY PROPOSAL: If I become a senior attorney (non-equity) in your law firm, I will offer you space and accommodations rent-free, including utilities, in a historic building in downtown Bloomington to open a satellite office. I've been practicing 37 years in the areas of debt counseling and bankruptcy, family law, school law, municipal law and criminal law. I'm seeking to change my life. With the completion of the I-69 corridor, southern Indiana is sure to become the next mega-growth area in the state. To receive further details of what I'm offering, reply to: barrister@bluemarble.net.


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FEDERAL CRIMES. Experienced Criminal Defense Attorney Monish B. Patel looking for Federal Crime referrals statewide. www.pateldefense.com, 317/917-3141, monish@ pateldefense.com. INDIANAPOLIS LITIGATION attorney available for wide range of litigation and appellate assignments. More than 25 years as litigator. Have handled more than 30 appeals. Either employment or contract arrangement possible. Ronald G. Sentman, 317/875-6702, RonaldS53@comcast.net.

VETERANS DISABILITY. Accepting referrals of veterans’ disability, military Medical and Physical Evaluation Boards, Courts Martial, military discharge upgrade and Boards for Correction of Military Records cases throughout Indiana and across the country. Bosley & Bratch, 800/953-6224, rbratch@lawyers4veterans.com, www.lawyers4veterans.com. WORKER’S COMPENSATION. Evansville attorney Kevin R. Bryant seeks referrals on worker’s compensation cases statewide. Please telephone 812/437-9991. STEVE TUCHMAN, IMMIGRATION. Experienced practitioner for statewide referrals, consultation and co-counsel positions. Lewis & Kappes, P.C., 317/639-1210, STuchman@ Lewis-Kappes.com

INDIANAPOLIS IMMIGRATION attorney seeks professional or co-counsel positions with Indiana attorneys in the practice of immigration law. Over 25 years’ experience in immigration. Will handle adjustment of status, change of status, labor certificates and other matters. Also, will attend interviews at Indianapolis Immigration Office. Thomas R. Ruge, Lewis & Kappes, P.C., 317/639-1210, truge@lewis-kappes.com

FRED PFENNINGER, COMMERCIAL & other collections. When you need help collecting your judgment. On faculty for over 30 seminars on collection law. Statewide referrals, consultation and co-counsel positions. Pfenninger & Associates, 317/848-7500, fred@indianacollections.com

LOCAL COUNSEL, southwestern Indiana. Vanderburgh, Posey, Gibson, Pike, Dubois, Warrick, Spencer, Perry, Knox, Daviess. Circuit/Superior Court, Bankruptcy/District Court, Sheriff Sales, Settlement Conferences. Erin Berger, 812/250-6744, erin@erinbergerlaw.com

INSURANCE DEFENSE & coverage. AV-rated northwest Indiana insurance defense firm with over 75 years of combined experience in insurance practice is available to work with insurance companies on coverage issues and to represent insureds in litigation throughout northern Indiana. Huelat Mack & Kreppein P.C., 450 St. John Rd., Suite 204, Michigan City, IN 46360, 219/8793253, jhuelat@hmkattorneys.com

WORKER’S COMPENSATION. Indianapolis attorney Charles A. Carlock seeks referrals on worker’s compensation cases statewide. Tele., 317/5735282 or 844/415-1461. CALIFORNIA LAWYER since 1966. AV-rated. Member, ISBA. Father and brother practiced many years in Marion. Enjoys interacting with Indiana lawyers. Handles transactions, ancillary probates and general and complex litigation in all California state and federal courts. Law Offices of John R. Browne III, a Professional Corporation, 50 California St., Suite 3500, San Francisco, CA 94111; 415/4216700; johnrbrowne@sbcglobal.net; www.jbrownelaw.com

Special Services

MISSING HEIRS & WITNESSES located, intestate heirs verified. Complete family lineage establishment. Mark E. Walker & Company, LLC – Indiana Private Investigator Firm; 800/982-6973; www.MissingHeirsLocated.com

HEALTH CARE PROVIDER license defense. Experienced nurse attorney is available to represent nurses, physicians, pharmacists, dentists, veterinarians and other licensed health care professionals before the various licensing boards or to respond to an attorney general’s office license investigation. Lorie A. Brown, RN, MN, JD, lorie@brownlaw1.com, 317/465-1065.

Miscellaneous

MEDIATION TRAINING: Certified 40-hour Domestic Relations Mediation Course, July 22-26, Fort Wayne. This course sells out. Register at JanetMitchellMediation.com, 260/4837660 or janetmitchell@mediate.com.

LAW OFFICE, northside Indy, downsizing: desk, 2-seat couch, 2 chairs, picture, antique table, misc. Call 317/580-2525.

Need to sell something? The least expensive way: Res Gestae classifieds! Email your ad to: sferrer@inbar.org

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RES GESTÆ • MAY 2016

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By Terry W. Tolliver

Recognizing nonlegal community service

W

FAIR COMMENT

hen asked what I do for a living, I am proud to say that I am an attorney. When asked what that means, my answer is always the same – attorneys are people who help others resolve their problems. Those called to our profession inherently want to help people, whether or not it is for pay. This commitment to serving others often takes the form of pro bono legal service. But lawyers do much more than offer their time and legal advice to those in need. A survey of any nonprofit board or event will inevitably identify lawyers involved. Recognizing this nonlegal impact that lawyers have on their communities, the inaugural class of the ISBA Leadership Development Academy created the Service Committee to advance the nonlegal service work of lawyers in their communities and state. The committee established the Community Service Award to recognize members of our profession who best exhibit the following factors: 1. Providing exceptional, nonlegal service work in their respective communities (this does not include pro bono work, which is recognized separately); 2. Embodying the core values of our legal profession; 3. Promoting community involvement; and 4. Helping in underserved areas – this includes providing service in lower-income areas, youth initiatives, the elderly and infirm, schools, and similar areas. Past winners have included: • Julie A. Newhouse (Rushville) – Terry W. Tolliver Office of the Indiana Julie helped to transition the funding Attorney General of “We the People” from government Indianapolis, Ind. funding to private support in order terry.tolliver@atg.in.gov to ensure that teachers continued to be trained in providing civics education to our youth.

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RES GESTÆ • MAY 2016

• Shontrai D. Irving (Gary) – Shontrai has focused his efforts on diversity and improving his hometown of Gary. In addition, Shontrai has opened his home and served as a foster parent to nearly 30 children, and continues to encourage others to help change the lives of those that are most vulnerable in our communities. • Trevor J. Belden (Indianapolis) – Trevor teamed up with other community leaders to develop IndyHub, an organization that works to attract and retain talented young professionals to Indianapolis and to connect those young professionals with volunteer service opportunities. Trevor is deeply invested in the future success of Indianapolis. Through his efforts, he encourages others to participate in volunteer activities to ensure that success. • David E. Jose (Indianapolis) – David serves on the advisory board of Back on My Feet, which provides a running component three mornings per week in conjunction with social services and life-skills support for individuals facing homelessness due to addictions, criminal history and other causes. David serves as a friend and mentor not only to the resident participants but also to many of the young volunteers as well. This is just a snapshot of the great work performed by members of our profession. If you know someone who should be recognized as this year’s recipient, please nominate him or her by July 8 for the ISBA Community Service Award by visiting the following website: https://inbar.site-ym.com/page/serviceaward. Please also plan to join us at the ISBA Awards Luncheon, which will take place at the Conrad Hotel in Indianapolis on Friday, Sept. 9, from noon to 1:30 p.m. Finally, mark your calendars now and plan to join judges and lawyers in your community for the Annual Day of Service on Saturday, Sept. 17. Additional information about the available opportunities throughout the state will be provided at a later date.


Res Gestae - May 2016  

May 2016 edition of Res Gestae, the journal of the Indiana State Bar Association

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