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KEEP CALM AND LAWYER ON ISBA Solo & Small Firm Conference French Lick Resort June 4-6, 2015

March 2015

Vol. 58, No. 7

BROCHURE INSIDE


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The Journal of the Indiana State Bar Association

RES GESTÆ March 2015

DEPARTMENTS

13 COUNTERCLAIM

5

22 WHERE TO TURN

Vol. 58, No. 7

PRESIDENT’S PERSPECTIVE Jeff R. Hawkins, Sullivan, 2014-2015

26

ETHICS CURBSTONE

34

RECENT DECISIONS 10/14

39

CRIMINAL JUSTICE NOTES 11/14

46

FAIR COMMENT CLASSIC

Donald R. Lundberg, Indianapolis

Maggie L. Smith and Abigail T. Rom, Indianapolis

Jack Kenney, Indianapolis

Rabb Emison, Vincennes

F E AT U R E S 26 MISCONDUCT 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

9

ISBA LAUNCHES SECTION FORUMS

11

ON THE ROAD TO ‘SERVANT LEADERSHIP’

13

THE RESURRECTED COUNTERCLAIM: IND. TRIAL RULE 13(J)

22

JLAP: SAVING LIVES AND CAREERS

By Bill Brooks, Indianapolis

By Colin E. Flora, Indianapolis

By U.S. Magistrate Judge Tim A. Baker, Indianapolis

Res Gestae (USPS–462-500) is published monthly, except for January/February and July/August, by the Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. Periodicals postage paid at Indianapolis, Ind. POSTMASTER: Send address changes to Res Gestae, c/o ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204. Subscriptions to members only, $5 annually from dues. All prior issues available exclusively from William S. Hein & Co., 1285 Main St., Buffalo, NY 14209. ISBA members are encouraged to submit manuscripts to the editor for possible publication in Res Gestae. Article guidelines can be obtained by calling 800/266-2581 or visiting www.inbar.org. Res Gestae’s printer, Print Directions, Inc., is an Indiana-certified Woman Business Enterprise. © 2015 by the Indiana State Bar Association. All rights reserved. Reproduction by any method in whole or in part without permission is prohibited. Opinions expressed by bylined articles are those of the authors and not necessarily those of the ISBA or its members. Publication of advertisements is not an implied or direct endorsement of any product or service offered.

RES GESTÆ • MARCH 2015

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Those were the days?

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

OFFICERS President Jeff R. Hawkins, Sullivan President-Elect Carol M. Adinamis, Westfield Vice President Mitchell R. Heppenheimer, South Bend Secretary Michael S. Dalrymple, Indianapolis Treasurer O. Adedoyin Gomih, Merrillville Counsel to the Ted A. Waggoner, Rochester President

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

Scott E. Yahne, Munster Robyn M. Rucker, Valparaiso Robert L. Jones Jr., Notre Dame Martin E. Seifert, Fort Wayne Candace D. Armstrong, Brook Patrick J. Olmstead, Greenwood Ann Z. Knotek, Brownsburg Hon. Leslie C. Shively, Evansville Crystal G. Rowe, New Albany Wilford A. Hahn, Huntington Tonya J. Bond, Indianapolis Terry W. Tolliver, Indianapolis Andrew Z. Soshnick, Indianapolis Rafael A. Sanchez, Indianapolis Sonia C. Das, Indianapolis James Dimos, Indianapolis Andi M. Metzel, Indianapolis, Chair House of Delegates Hon. Thomas J. Felts, Fort Wayne, Chair-Elect Young Lawyers Matthew J. Light, Indianapolis, Section Chair

STAFF Executive Director Thomas A. Pyrz • tpyrz@inbar.org Administrative Assistant Barbara M. Whaley • bwhaley@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 Kimberly D. Latimore • klatimore@inbar.org Director of CLE Christina L. Fisher • cfisher@inbar.org Assistant to Director of CLE Kassandra Adams • kadams@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

This month’s “President’s Perspective” addresses the need for our entire legal community to rethink the practice of law and lawyer regulation. The ISBA began that reimagination process a couple of years ago and is updating many of the ways it serves its members. A description of our latest evolutionary step appears in this month’s Res Gestae at p. 9 – we’re upgrading our e-discussion lists to a powerful database-driven forum system.

S

ome of us remember Archie Bunker (Carroll O’Connor) and Archie’s wife, Edith (Jean Stapleton), singing the theme song, “Those Were the Days,” in the ’70s sitcom, All in the Family. Lawyers often lament that these days are not those days – when economic and competitive pressures played much smaller roles in the practice of law. I strolled down Nostalgia Lane recently when I received copies of the Sullivan County Bar Association’s 1961 Schedule of Fees and a fee poster that I presume would have been displayed in lawyers’ offices. Older lawyers have told me that when the old fee schedules were effective lawyers could be disciplined for charging fees below the scheduled minimums. Those particular good ole days ended when the U.S. Supreme Court held that “the State Bar, by providing that deviation from County Bar minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and in that posture cannot claim it is beyond the reach of the Sherman Act.” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975). The application of antitrust laws to bar associations opened a cascading legal service marketplace destabilization that some futurists have called “creative destruction.” Creative destruction theory says that marketplace evolution rewards innovators and automators and extinguishes inflexible and inefficient providers of goods and services. Writers about the future of law practice (Jordan Furlong, William Henderson, Jim Calloway, Richard Susskind and others) illustrate the theory with examples such as the near extinction of carriage makers after the invention of the “horseless carriage” and of phone book publishers (When is the last time you used a phone book?) after mobile phones and the Internet became ubiquitous. The initial competition among lawyers triggered by Goldfarb synergized with technological innovation and the eruption of selfservice cultural values into an existential

threat for many traditionally minded lawyers. Lawyers now compete with each other, a host of emerging DIY legal service online systems, and an endless flood of non-JD service providers in such diverse legal areas as transportation, employment, bankruptcy, debt collection, estate planning and elder law. It would be enough for any profession to face such challenges in a free market economy, but our profession does not allow itself to engage freely in the marketplace. The legal profession imposes upon itself the highest standards of consumer protection values with restrictions on fees, marketing and promotion of ancillary services (such as investment management and other financial services). Additionally, we expect lawyers to provide pro bono service to the indigent when some lawyers can’t afford to pay student loan and mortgage payments. Of course, LegalZoom, Rocket Lawyer, U.S. Legal Wills and a mushrooming horde of other unlicensed and unregulated legal service providers sidestep all of those burdens completely. A battle tactic during the American Revolutionary War demonstrates what happens when a self-regulating profession voluntarily hobbles itself with responsibilities that do not encumber its competitors. British generals prohibited their soldiers from engaging in guerrilla warfare tactics in early Revolutionary War skirmishes. American Col. Daniel Morgan exploited the rigid British military dogma with an asymmetrical deployment of sharpshooters against the conventionally trained and deployed British Army. The American marksmen shot the Brits full of holes from brush piles, barn lofts and tree perches until the onslaught forced British generals to abandon some of their battlefield decorum near the conflict’s end. Bar associations slowed the tide of unregulated (continued on p. 7)

PRESIDENT’S PERSPECTIVE JEFF R. HAWKINS jeffh@hawkinslaw.com 2014-2015 RES GESTÆ • MARCH 2015

5


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PRESIDENT’S PERSPECTIVE continued from page 5 legal service competition by prosecuting interlopers with charges of unauthorized practice of law in the past, but fissures are spreading through the dike faster than bar leaders can plug them. Furthermore, compared to bar associations’ cash-strapped, dues-dependent budgets, some of their unregulated adversaries are raising overwhelmingly larger financial war chests in capital markets. Unless all states unite against such challenges, what individual state bar can realistically afford to prosecute a UPL claim against every encroaching quarter-billion-dollar legal service technology company? So what is the legal profession to do? We cannot put the genie back into the bottle because the FTC will not tolerate the monopolistic practices of our past; and our unlicensed and unregulated competitors are salivating for the bread & butter on our plates right now. With the vandals storming the gates, we need to change the legal profession fundamentally. Lawyers must evolve to remain relevant in the marketplace. Law schools and bar regulators must innovate the way they educate, license and regulate lawyers to ensure that the practice of law remains an economically sustainable profession. Archie Bunker’s anachronistic and socially unacceptable behavior made us laugh. Who will laugh if our quixotic cling to outmoded traditions, practices and behavioral standards relegates many of us to obsolescence and obscurity? It certainly will not be a bunch of middle-aged, former lawyers wrangling shopping carts in Walmart parking lots! Ultimately, our marketplace, like every other, presents only two basic alternatives: evolution or extinction. I, for one, intend not to become a museum exhibit.

Nominations sought for ISBA board positions

A

ny lawyer member of the Indiana State Bar Association who desires to be considered for nomination to a vacancy on the Board of Governors should convey that interest to the chair of the Association’s Nominating Committee, Jim Dimos of Indianapolis. Members who are nominated will face an election at the annual meeting of the Association Assembly to be held in French Lick in October, after which a two-year term will commence. District vacancies for the term October 2015 through October 2017 are as follows: District 1, representing Lake County; District 4, representing Allen County; District 5, representing the counties of Benton, Boone, Carroll, Cass, Clinton, Fountain, Howard, Jasper, Montgomery, Newton, Tippecanoe, Warren and White; District 10, representing the counties of Adams, Blackford, Delaware, Grant, Henry, Huntington, Jay, Madison, Miami, Randolph, Tipton, Wabash, Wayne and Wells; and District 11, representing Marion County, two positions. At-Large, one position. (Members from any district may apply.) Letters of interest and résumés, not longer than two pages (with information as to leadership positions or other activity within the State Bar as well as other affiliations) should be sent to Jim Dimos, Chair, ISBA Nominating Committee, Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. The deadline for receipt is April 1. RES GESTÆ • MARCH 2015

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ISBA launches forums in place of e-discussion lists

Important to note: The ISBA switched from its e-discussion list provider to the forums on March 16, meaning you are no longer able to post to an e-discussion list. However, you can now post to any forum of which you are already a section member by signing in at www.inbar.org. Call 800/266-2581 for instructions on how to access the forums and subscribe to topics. Similar to e-discussion lists, forum posts are archived, searchable and provide you with the option of receiving posts as a single “digest” email as opposed to receiving multiple emails throughout the day. Also, much like what you’re used to, every time someone posts a new topic to the forum of which you are a member, you will receive

Jeff R. Hawkins has posted a topic in the Probate, Trust & Real Property Section forum. I want to obtain a Servicemembers Civil Relief Act Status Report from the Department of Defense Manpower Data Center for motion for default judgment. When I look for the Center’s website, I keep landing on pages that my browser flags as unsecure websites. Does someone have a safe Web link to share with me to order the status report? ~ Jeff R. Hawkins To reply or subscribe to this topic, click: http://www.inbar.org/forums/permalink.asp?id=1068809

ATTENTION

T

he State Bar is excited to announce the launch of its new section forums, one of the key member benefits now available through our new & improved website and membership database. The new forums are directly linked to the database, keeping each forum up to date with regard to new members and email address changes. You will also have the ability to cut down on the number of emails you receive daily by subscribing only to topics posted to the forums that are of special interest to you.

To view other forum topics, click the link below: http://www.inbar.org/forums/Topics.aspx?forum=167299&group=134068 Thanks! Indiana State Bar Association The contents of this email do not necessarily represent the views or policies of the community or organization. If you wish to unsubscribe from the "Probate, Trust & Real Property Section" forum, click here: http://www.inbar.org/members/forum_subscriptions.asp

an email notification allowing you to read the post. The primary difference is that in order to reply to someone else’s post, you will need to be signed in at www. inbar.org. This simple step has been made easy for you because a direct link to the forum post on the website will be included in the email notification that you receive. In order to initiate a new post, you will also need to be signed in at www. inbar.org to select your forum.

We are excited about the functionality and connectivity of the forums with our new database! For more information about the forums and subscription options, please contact your section liaison at 800/266-2581. Above is an example of what an email notification looks like when someone posts a new topic to a forum.

NED P. MASBAUM, M.D. Board Certified Forensic Psychiatrist Web site: www.FORNPSYCH.com

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CONSULTATION EVALUATION EXPERT WITNESS TESTIMONY RECORD REVIEW CIVIL CRIMINAL WORLDWIDE AVAILABILITY

24-hour voicemail and paging (317) 846-7727 • Toll free (888) 203-7746

RES GESTÆ • MARCH 2015

9


The Young Lawyers Section invites you to attend the annual

Indiana State Bar Association Judicial Reception Wed., April 29 5:00 - 7:00 pm

Conrad Indianapolis 50 W. Washington St. Indianapolis, IN 46204 Don’t miss this unique opportunity to network with your local judges and colleagues. Firms may sponsor this special event, or you may purchase individual tickets. Sponsoring organizations receive one complimentary ticket per $250 donation and will be recognized in State Bar publications.

Call the ISBA at 317.639.5465 or 800.266.2581 for more information about sponsoring this event. Pricing Information _____ FREE - Tickets for judges are complimentary! _____ $20 - ISBA Members or any spouse/guest of judge _____ $40 - Non-ISBA Members TOTAL $

Total tickets (incl. free)

Name________________________________________________

Payment Information:

Address______________________________________________

❑ Check (make payable to Indiana State Bar Association)

City, State, Zip_________________________________________

Credit Card (3-4 digit Card Verification Code & signature required) ❑ VISA ❑ MasterCard ❑ Discover

Phone_______________________________________________ Fax__________________________________________________

Card Number__________________________________________ Exp. Date_____ /_____ 3-4 digit Card Verification Code_________

Email________________________________________________

Signature_____________________________________________

Indiana State Bar Association • www.inbar.org One Indiana Square, Suite 530 • Indianapolis, IN 46204 317-639-5465 • 800-266-2581 Toll Free • 317-266-2588 Fax

Young Lawyers Section: Judicial Reception – 4/29/2015

A $25 service fee will be applied to cancellations received on or before 4/22/15. No refunds on cancellations received after 4/22/15. If you send someone else in your place, please provide ISBA with that person’s name.

Register online at www.inbar.org or submit completed registration form to:

Fax: 317-266-2588, Attn: CLE & Events • Email: cle.events@inbar.org For more information, please call the ISBA at 800-266-2581.


RG 03.15_RG 09.05 3/6/15 9:03 AM Page 11

By Bill Brooks

On the road to ‘servant leadership’

We need to know such personal curiosities because groups function better when members know their colleagues’ stories – and because the opening session of the State Bar’s 2015 Leadership Development Academy focused on that fact and the fact that leadership involves making groups function more efficiently. We now know even more about the 25 members of the academy’s fourth class. We know that, if he were not a lawyer, Jordan would be a trombone player. We know that Kate would want to be Beyonce’s makeup artist and that Ala’a would be a National Geographic photographer. And Abby would be a Disney travel agent – or, better still, a Disney princess. Mary Jo Clark of Contemporary Consulting, co-facilitator of the Jan. 22-24 event at the Fort Harrison State Park Inn, told the attorneys their responsibility was to absorb the material in front of them, but also to learn about each other.

Servant leaders can be government leaders, said co-facilitator Pat Heiny. “But they are also people who live next door or your grandparents.” On the road to that lesson, the new classmates learned about one member’s grandfather, a Russian who survived the horrors of World War II and the war’s daunting aftermath. They also learned about how one of the classmates is named Freedom because her father wanted to remember why he fought, and many of his friends died, in Vietnam. Mary Jo Clark challenged the class to absorb the personal stories and the lessons on servant leadership and then “reflect on how this is changing and making an impact on you – and how it is making a difference in your life and in your work.” The class heard personal stories, too, from distinguished members of Indiana’s judiciary, including the Hon. Brent E. Dickson of the Indiana Supreme Court and the Hon. Nancy H. Vaidik, chief judge of the Indiana Court of Appeals.

Dickson spoke on opening night before adjourning to what has become an LDA tradition, dinner in the handsome Fort Harrison home of former Indiana Supreme Court Justice Frank Sullivan Jr. “Honor the legal profession,” Dickson told the class. “Public trust is crucial; carry that mantle of dignity at all times.” Vaidik spoke at breakfast the next morning. And though her path didn’t cross Dickson’s at this particular event, the two jurists carried many of the same themes through their highly personal stories of their careers. “Your reputation is all you have,” Vaidik said as she related some interactions she had over the years with less-than-honorable attorneys. “Integrity and honesty are [everything] – and you can never get that back.” She also said that all attorneys are role models in their communities as well as their courtMedia consultant rooms. “When you and freelance writer stand up in front Indianapolis, Ind.

LEADERSHIP DEVELOPMENT ACADEMY

J

ennifer swam with dolphins. Liz designed bridges. Rhea was a National Spelling Bee champ. Sarah scuba-dived in Tahiti. Sue plays the bagpipes. And Jamie attended seven – count ’em, seven – Metallica concerts.

(continued on page 12)

Workshop goals also included building trusting relationships among the group, learning to serve the common good, learning how to enhance the capabilities of others, and learning about their own qualities. Who are the risk-takers? Who are the sensitive ones? Who among them find out information by hearing others’ stories, and who are the ones that would rather use data? How does that affect a team’s efficiency? And how will the class members use this information on their road to servant leadership? RES GESTÆ • MARCH 2015

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LEADERSHIP continued from page 11 of people, you want to make sure you don’t screw it up.”

those who treat each other with respect.”

Vaidik was asked, as a judge, what she thought the most important quality is for a lawyer. “Be prepared,” she said, but then continued by sounding much like Dickson had the night before. “Be civil, collegial,” she said. “The best lawyers are

Vaidik also stressed such virtues as kindness and empathy. “You don’t have to be the smartest person in the room to be a leader,” she said. “It takes so much more to be a leader.” She endorsed the idea of being active in bar and judges’ associa-

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tions. She said that when she first got involved in the Indiana Judges Association, “it opened up a whole new world, an unbelievable world.” And, just as Dickson had done the evening before, Vaidik stressed how the relationships in bar associations – and, specifically, the Leadership Development Academy – would impact the classmates’ careers. “These are going to become your lifelong friends and ‘vouchers’ – people in various parts of the state who can vouch for you.” Members of the Leadership Development Academy’s fourth class were reminded several times that they would be making many connections during the five sessions, not the least of which would be via talks with all five members of the Indiana Supreme Court. There were also three past presidents of the ISBA present at the morning talk by Chief Judge Vaidik – a list that included C. Erik Chickedantz, LDA founder. The list was even enhanced during that day’s luncheon, when – in an LDA first – many members of the ISBA Board of Governors were interspersed among the dining tables to interact with the class members before the board’s scheduled monthly meeting. There was one other strong similarity between the two judges’ talks. Both stressed the need for lawyers to live balanced lives, to respect their home lives and their families. Dickson said that at one point in his career he scaled back his community activism for more family time, for more time as his children were growing up. “Don’t let those days escape,” he said.

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RES GESTÆ • MARCH 2015


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By Colin E. Flora

The resurrected counterclaim: Ind. Trial Rule 13(J)

A

s civil attorneys well know, Indiana Trial Rule 13 governs counterclaims and cross-claims. Nevertheless, a portion of the rule often goes overlooked to the detriment of defendants with otherwise timebarred counterclaims. Rule 13(J) exists as the embodiment of almost two centuries of doctrines that gradually transitioned from common law to statute and finally into procedural rule. It provides for circumstances in which a counterclaim may be filed after expiration of the statute of limitations as a means of recoupment or set-off against a plaintiff’s claims.1 Notably, 13(J) does not provide for affirmative relief; rather, it allows for a method to diminish a counterclaim defendant’s recovery as the primary plaintiff.2 Also of note is that, unlike much of Rule 13, subdivision (J) has no counterpart in the federal rules.3 Devoid of its historical context and subsequent limited case law, Trial Rule 13(J) seems a straightforward procedural rule. It reads: The statute of limitations, a nonclaim statute or other discharge at law shall not bar a claim asserted as a counterclaim to the extent that: (1) it diminishes or defeats the opposing party’s claim if it arises out of the transaction or occurrence that is the subject-matter of the opposing party’s claim, or if it could have been asserted as a counterclaim to the opposing party’s claim before it (the counterclaim) was barred; or (2) it or the opposing party’s claim relates to payment of or security for the other.

On first glance, it appears to provide two avenues to preserve a dilatory counterclaim: (J)(1) and (J)(2). However, case law proves first glances deceiving and shows (J)(1) may be understood only through the lens of history. An even greater enigma is (J)(2), the plain language of which belies

its intended purpose: to address counterclaims when it or the primary claim has been assigned. Even with the limited answers through case law, there remain unsettled questions in applying the rule tracing back to the doctrines and statutes that preceded it. By examining the limited case law, Civil Code Study Commission comments, and recent appellate arguments, this article attempts to provide a “one stop shop” for understanding the rule and to expose some of the lingering questions that may arise in practice. In order to do that, we must start at the beginning.

History of recoupment and set-off The origins of T.R. 13(J), along with the rest of Rule 13, stem from two related but distinct doctrines: recoupment and set-off.4 At the dawn of Hoosier jurisprudence, when there existed a distinction between courts of law and equity, counterclaims were not recognized by that name. Chancery practice had cross-bills for the purpose of “obtain[ing] full relief for all parties and a complete determination of all controversies which arise out of the matters charged in the original bill.”5 Cross-bills had a mirror at law in the doctrine of recoupment. Recoupment permitted a reduction of the plaintiff’s claim so long as the basis for recoupment “grows out of the same contract or transaction as that upon which the plaintiff’s cause of action is founded.”6 Another related but distinct chancery court doctrine was set-off. Arising from “seventeenth-century chancery court’s jurisdiction over bankruptcy,”7 the set-off doctrine encompassed “a counter demand growing out of an independent transaction, for which the defendant might maintain an action against the plaintiff, pleaded by

the defendant to counterbalance the plaintiff’s recovery, either in whole or in part, and, [possibly], to recover a judgment in his own favor.”8 As Justice Byron Elliott recognized, “The essential difference between set-off and recoupment is that [set-off] may consist of a claim arising out of an independent contract; while in recoupment the damages claimed must flow from the same contract ... or must grow out of the same transaction as that on which the plaintiff’s cause of action is founded.”9 Just as chancery courts faded beneath the sands of antiquity, so too did the doctrinal status of recoupment and set-off.10 In 1852, the code system of pleadings was adopted to “blend in one system the chancery and common law procedure, but to so blend them that the new procedure ... should form in itself a complete and harmonious system.”11 The code blended crossbills and recoupment into counterclaims,12 “defin[ing it] as any matter arising out of, or connected with the cause of action which might be the subject of an action in favor of the defendant, on which would tend to reduce the plaintiff’s claim or demand for damages.”13 The code also subsumed the doctrine of set-off, but not as a “counterclaim.” The earliest incarnation of the set-off statute permitted “a party to an action [to] plead or reply a set-off or payment to the amount of any cause of action or defense, notwithstanding, such set-off or payment is barred by the statute.”14 The merger of law and equity along with the exclusion of set-offs from the category of counterclaims resulted in much Colin E. Flora confusion. This was most Pavlack Law, LLC Indianapolis, Ind.

(continued on page 14) colin@pavlacklawfirm.com RES GESTÆ • MARCH 2015

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RESURRECTED COUNTERCLAIM continued from page 13 apparent in federal courts tasked with applying Indiana law. In 1901, District Judge John Harris Baker discussed the dilemma in light of the fact that federal courts – unlike Indiana courts – did not merge law and equity until 1938.15 Judge Baker recognized that the portions of the Code encompassing equitable doctrines could not be applied by a federal court of law. This distinction left the counterclaim statute enforceable in federal courts only to the extent that it applied to recoupment and not to crossbills.16 Similar confusion plagued state courts in the blending of chancery terms with terminology derived from common law, resulting in questions over the proper procedure for raising a counterclaim or set-off.17 Federal jurisprudence, like that of Indiana, saw a transition of recoupment and set-off from common law to code counterclaim.18 The end result of the lengthy evolutionary process was the incorporation of the code counterclaim into Federal Rule 13.19 Recoupment claims became compulsory counterclaims under 13(a), and set-off claims became permissive counterclaims under 13(b).20 With the 1970 enactment of the Indiana Trial Rules, Indiana followed suit by abandoning the counterclaim and set-off statutes and incorporating them into T.R. 13.21

Incorporation of recoupment and set-off into T.R. 13(J)(1) Even though Rule 13(J) replaced the counterclaim and set-off statutes in 1970, it was not until Bacompt Systems, Inc. v. Ashworth – three decades later – that an Indiana appellate court addressed the rule in light of recoupment and set-off.22 Prior to Bacompt, case law insight was limited. The sum total of case law observations were that: (1) the rule limits 14

RES GESTÆ • MARCH 2015

an applicable counterclaim to “a defense of recoupment” that does not permit affirmative recovery;23 (2) it does not “confer [subject matter jurisdiction] where it did not exist”;24 (3) it permits a counterclaim otherwise barred by the notice requirements of the Indiana Tort Claims Act;25 (4) it permits a counterclaim to foreclose mechanic’s lien more than one year after recording;26 and (5) it is not a tolling provision that accompanies statutes of limitations into federal court, but rather a procedural rule limited to state courts.27 For the first time, in Bacompt, the Court of Appeals looked at the history of Trial Rule 13 when interpreting subdivision (J).28 The court recognized that the “‘declared intention’ of the 1970 Civil Code Study Commission was to incorporate the doctrine of set-off and its history into the newly drafted Indiana Trial Rules.”29 However, the resulting Trial Rule 13 left “questions with cloudy answers.”30 The most important question was what impact the nature of the counterclaim as compulsory under Rule 13(A) or permissive under 13(B) had on the application of 13(J). Bacompt provided the much-needed answer. The Bacompt court determined, without much written analysis, that Rule 13(J)(1) comprised two distinct mechanisms for pursuing a dilatory counterclaim. The first clause – echoing the “transaction or occurrence” language of Rule 13(A) – is “clearly a compulsory counterclaim.”31 The second clause then is a permissive counterclaim. The distinction, already of great importance when not otherwise time-barred, becomes even more important under 13(J)(1). Under Rule 13, all counterclaims are either compulsory or

permissive.32 Thus, if a counterclaim is not compulsory under Rule 13(A), it is a permissive counterclaim governed by 13(B). The Bacompt decision determined that compulsory counterclaims are at all times permitted under Rule 13(J)(1). Permissive counterclaims, to the contrary, have a rigid limitation. The limitation to permissive counterclaims stems from the text of T.R. 13(J)(1): “if it could have been asserted … before it … was barred.” The Bacompt court determined this language provides a time limitation on applying Rule 13(J)(1) to permissive counterclaims. If the statutory period for bringing the counterclaim has passed prior to the accrual of a plaintiff’s cause of action, Rule 13(J)(1) does not apply to save a right to set-off.

When is a counterclaim compulsory? Because counterclaims are either permissive or compulsory, the determination of what constitutes a compulsory counterclaim is of the utmost importance. It is a question that has produced highly nuanced tests and contradictory results. Moreover, the interests typically at stake in determining whether a claim is compulsory or permissive get flipped when Rule 13(J) is implicated. In determining whether a counterclaim is compulsory, the court must determine what it means to arise out of the same transaction or occurrence. “The term ‘transaction’ has been defined as a word of flexible meaning.”33 In resolving this issue, courts have devised numerous tests. The dominant approach, and method utilized by Indiana, is the logical relationship test.34 The hallmark of the (continued on page 16)


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RESURRECTED COUNTERCLAIM continued from page 14 logical relationship test is its flexibility.35 The logical relationship need not be “an absolute identity of factual backgrounds … the essential facts of the claims [must be] so logically connected that considerations of judicial economy and fairness dictate all the issues be resolved in one lawsuit.”36

in a subsequent suit. That consideration does not exist with Rule 13(J). Consequently, the logic of applying a test driven by considerations of judicial economy seems inappropriate where economy may only be hampered by finding a claim compulsory, thereby increasing the number of issues litigated.

Despite the perceived advantages of the logical relationship test, it “results in uncertainty … and tends to be overbroad in scope.”37 However, the driving consideration that prevents the test from falling subject to mere whim is the goal of judicial economy: the avoidance of “multiple lawsuits between the same parties arising from the same event[s.]”38 Thus, even though “transaction or occurrence” is often broadly defined, it is done so in the context of effectuating judicial economy.39

Nevertheless, absent any guidance to the contrary, the only recognized test to determine whether a claim is compulsory is the logical relationship test. Because, “[b]y and large, the courts have refrained from making any serious attempt to define the transaction-or-occurrence concept in a highly explicit fashion[,]” the best method for determining whether a claim is logically related is to find analogous cases.40 Consequently, any further discussion here would be a gross oversimplification.

This is where considerations generally applicable in determining whether a claim is compulsory get flipped. Underlying the judicial economy consideration is the potential that a counterclaim deemed permissive can be brought

Is Bacompt settled law? Of course, whenever the controlling case is from an intermediary court, the point of law is not definitively settled.41 Nevertheless, just because the Indiana Supreme

Briidget O Bridget O’Ryan ’ Ryan 317.255.1000 317 7.255.1000 boryan@oryanlawfirm.com bor yaan@or yanlawfirm.com 1901 B BROAD ROAD RIP RIPPLE PLE AVENUE AVENUE E INDIANAPOLIS, IND IANAPOLIS, IN 46220

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Court has not weighed in on Bacompt does not mean the issue is unsettled. Despite no indication from the Court of Appeals that Bacompt is anything other than the definitive interpretation of Rule 13(J)(1), at least one challenge has arisen.42 In Walbridge v. JP Morgan Chase Bank, N.A., the appellant-defendant sought to defeat application of Bacompt by relying on the 1860 Indiana Supreme Court case Fox v. Barker.43 In Walbridge, the counterclaim’s statute of limitations had expired long before the accrual of the plaintiff’s claims.44 On appeal, the appellant-defendant invoked the broad holding of Fox, which, relying on the original set-off statute, permitted use of any timebarred counterclaim for set-off. Interestingly, the 1970 Civil Code Study Commission Comments specifically recognize the abrogation of Fox.45 In defense of his reliance upon Fox, the appellant-defendant argued that “[t]he Commission’s comments are not necessarily binding, and ... a statute or rule is not open to construction where there is no ambiguity in the language employed and its meaning is plain.”46 Accordingly, the defendant argued that Bacompt far exceeds the unambiguous language of Rule 13(J). The resulting unpublished decision addressed neither Bacompt nor the viability of Fox. Nevertheless, the recognized abrogation of Fox, combined with the numerous cases premised on Bacompt, indicates that Bacompt is here to stay.

What about T.R. 13(J)(2)? Thus far we have focused on subdivision (J)(1). The reason is simple – no case has addressed (J)(2). Nevertheless, there is guidance to the rule. Although 13(J)(2) does not explicitly reference


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assignments, the Commission comments show that the rule is designed to address counterclaims after assignment. The purpose of subsection (2) is to retain the substantive rule of Burns’ Stat., §2-226 to the extent that it is not regulated by other statutory provisions or other principles of common law. ... The distinction between claims arising out of the same transaction or occurrence and those which do not is a valid one. Thus if O promises to pay $1,000 in 10 days in exchange for E’s promise to build a garage for O in 60 days, an assignee of E should take subject to any defense or counterclaim of O resulting from the same contract – “transaction” – even if O was informed of the assignment before the defense counterclaim accrued. However, if O is indebted to E for $1,000 and E assigns his interest to E2 who notices O of the assignment, E2 should not take subject

to a counterclaim in favor of O against E arising after the notice if the counterclaim is unrelated to the original claim.47

Section 2-22648 reads in pertinent part: “[A]ll actions by assignees shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment, except actions on negotiable promissory notes and bills of exchange, transferred in good faith and upon good consideration before due.”49 This portion of §2-22650 “was copied from the New York code”51 and codified “the general policy of [Indiana] law, except in cases of commercial paper, to permit the same defence to be made where a contract has been assigned, as where it has not been[.]”52 However, §2-226 did not provide carte blanche use of set-off; only

claims for set-off accruing before notice of the assignment could be argued by or against an assignee.53 Exactly what portions of §2-226 survived the transition to 13(J)(2) is not entirely clear. Based on the Commission comments, it appears that the drafters intended to preserve the rule that a counterclaim follows assignment. It also appears that only compulsory counterclaims track assignment. However, the limitation of the accrual date does not appear to have been preserved in 13(J)(2). Further, there is no clear indication of the commercial paper exception in 13(J)(2). Consequently, exactly how subdivision (J)(2) in its current form is to be interpreted remains unclear and may best be resolved by amendment to clarify (continued on page 18)

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RESURRECTED COUNTERCLAIM continued from page 17 its meaning. Until the rule is revised or case law provides guidance, the best source for interpretation remains the Commission comments.

Does Rule 13(J) apply to counterclaims that expire after the filing of a complaint? The basic purpose of 13(J) is to permit a defendant to invoke a counterclaim that is otherwise time-barred. Where the waters become murky is when the counterclaim becomes time-barred after the plaintiff files its complaint. This issue was brought to the forefront by Crivaro v. Rader.54 There, the plaintiff filed suit three weeks before the expiration of the statute of limitations; the defendant filed a counterclaim 30 days later, after the statute of limitations had expired. On appeal, the defendant argued

that filing the complaint tolled the statute of limitations. The Court of Appeals rejected the defendant’s argument, recognizing that to hold otherwise would be to partake in judicial legislation.55

Whatever the merit in utilizing the “majority” approach, Indiana law is clear: any dilatory counterclaim, regardless of when it became time-barred, is subject to the limitations of Rule 13(J).

Subsequent Indiana decisions have utilized Crivaro without negative indication.56 It was also the position adopted by an Indiana federal court prior to Crivaro.57 Nevertheless, one commentator has criticized the decision, contending that the Crivaro approach is flawed and that Indiana should have adopted the majority approach in tolling the statute of limitations for compulsory counterclaims upon the filing of the complaint.58 This position has been adopted by courts in other jurisdictions that have rejected Crivaro.59

Impact of Rule 13(J) on untimely filed counterclaims

• • • •

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Untimely filed counterclaims, as opposed to time-barred counterclaims, are counterclaims that were not filed at the proper procedural juncture. When a defendant does not file a counterclaim prior to or concurrently with its answer, it may only do so by amendment under Trial Rule 15(A). At least one defendant has argued, upon denial of leave to amend, that Rule 13(J) acts to circumvent the discretion of the trial court in permitting amendments under Rule 15(A).60


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Although, the resulting decision is unpublished and therefore uncitable,61 the conclusion – that 13(J) has no impact upon amendment procedures – seems highly indicative of what a court would hold in a published decision. In another informative unpublished decision, the Court of Appeals addressed the utility of 13(J) in a subsequent action to attack a prior judgment that had resulted in the issuance of a tax deed.62 The appellant tried to utilize a subsequent quiet title action to attack the judgment under the auspices of Rule 13(J). The court saw through this attempt to circumvent Trial Rule 60(B) that would render the reasonable-time limitation of 60(B)(6) superfluous as long as the challenge was made as a counterclaim. The court rejected such a reading because it “would extend a claim to counterclaimants that would not otherwise be available to the same individual filing a direct claim[.]” Similarly, the Tax Court rejected use of 13(J) to extend the time to challenge the determination of estate tax.63 There, the estate filed its counterclaim eight days after the window to challenge inheritance tax. The court found the attempted use of 13(J) was to seek affirmative recovery – repayment of money – which falls beyond the scope of Rule 13(J).64

Set-off, unlike recoupment, is a doctrine derived wholly from equity. Nevertheless, with its transformation into permissive counterclaim under Rule 13(B), “it had lost all its equitable foliage” and become “purely procedural” in nature.65 It survives as a standalone doctrine of law only in bankruptcy proceedings;66 this circumstance is unsurprising since bank-

ruptcy courts remain courts of equity.67 Even though recoupment was a product of common law, the Indiana Supreme Court has recognized the “equitable doctrine of recoupment” to describe “an equitable exception to the statute of limitations where [it] would work (continued on page 20)

Is set-off or recoupment available outside the Trial Rules? Because the doctrines existed long before adoption of the Trial Rules, there is reason to wonder whether adoption of 13(J) has extinguished the corresponding equitable and common law doctrines. The answer is clear in the case of set-off, but slightly less so in recoupment.

RES GESTÆ • MARCH 2015

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RESURRECTED COUNTERCLAIM continued from page 19 an egregious injustice.”68 However, use of this doctrine appears strictly confined to recoupment of tax payments. Nevertheless, one appellant sought to extend the doctrine beyond taxes by invoking a court’s inherent power to grant equitable relief.69 Although the appeal was voluntarily dismissed prior to decision, the argument seems destined to have failed. As discussed, recoupment is not an equitable doctrine by lineage. Its equitable counterpart – cross-bills – was not a power inherent within the chancery court. Cross-bills were a procedural mechanism governed by the same rules as the initial pleading.70 Thus, it appears recoupment remains viable outside Rule 13 only in tax law.

Final remarks Even though the long history of the doctrines of set-off and recoupment has yielded Trial Rules that remain unchanged for four decades, there are still uncertainties left in applying the doctrines. Only future case law or rule changes will

be able to resolve the unanswered questions. And, if the history of set-off and recoupment is any indicator, those answers will never be as clear as hoped. 1. Crivaro v. Rader, 469 N.E.2d 1184, 1187 (Ind. Ct. App. 1984), trans. denied. 2. Streets v. M.G.I.C. Mortg. Corp., 177 Ind. Ct. App. 184, 378 N.E.2d 915, 919-20 (1978).

17. Brower v. Nellis, 6 Ind. Ct. App. 323, 33 N.E. 672, 672-73 (1893). 18. 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §1401 at 4 (3d ed. 2010). 19. Coplay Cement, 983 F.2d at 1440.

4. See Standley v. NW. Mut. Life Ins. Co., 95 Ind. 254, 260 (1884).

22. Id. at 143-46.

5. Duffy v. England, 176 Ind. 575, 96 N.E. 704, 707 (1911); Rooker v. Fid. Trust Co., 191 Ind. 141, 131 N.E. 769, 775 (1921).

24. Matter of Compton’s Estate, 406 N.E.2d 365, 372 (Ind. Ct. App. 1980).

6. Standley, 95 Ind. at 260.

25. Gov’t Interinsurance Exch. v. Khayyata, 526 N.E.2d 745, 746-47 (Ind. Ct. App. 1988).

7. Coplay Cement Co., Inc. v. Willis & Paul Grp., 983 F.2d 1435, 1441 (7th Cir. 1993) (discussing both Federal Rule 13 and Trial Rule 13).

26. Brenneman Mech. & Elec., Inc. v. First Nat. Bank of Logansport, 495 N.E.2d 233, 243-44 (Ind. Ct. App. 1986), trans. denied.

8. Duffy, 176 Ind. 575, 96 N.E. at 707. 9. Standley, 95 Ind. at 260. 10. For discussion of the evolution of Indiana courts, see Elizabeth R. Osborn, “Indiana Courts and Lawyers,” 1816-2004, in The History of Indiana Law 257 (David J. Bodenhamer & Randall T. Shepard, eds., 2006). 11. Standley, 95 Ind. at 261; Colt v. Hicks, 97 Ind. Ct. App. 177, 179 N.E. 335, 341 (1932). 12. Jewett Car Co. v. Kirkpatrick Const. Co., 107 F. 622, 624 (C.C.D. Ind. 1901). 13. Duffy, 96 N.E. at 707 (internal quotation marks omitted).

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

21. Bacompt Sys., Inc. v. Ashworth, 752 N.E.2d 140, 143 (Ind. Ct. App. 2001), trans. denied.

23. Streets, 378 N.E.2d at 919-20.

27. Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 135 v. Jefferson Trucking Co., Inc., 473 F. Supp. 1255, 1258 (S.D. Ind. 1979), aff’d, 628 F.2d 1023 (7th Cir. 1980), cert. denied. 28. 752 N.E.2d at 143-46. 29. Id. at 143 (citing 1A William F. Harvey, Indiana Practice Series: Rules of Procedure Annotated §13.16 (3d ed. 1999)). 30. Id. 31. Id. 32. Jones v. Ford Motor Credit Co., 358 F.3d 205, 211 (2d Cir. 2004); Cmty. State Bank Royal Ctr. v. O’Neill, 553 N.E.2d 174, 179 (Ind. Ct. App. 1990) (recognizing utility of federal authority in interpreting Rules 13(A) & (B)). 33. Vill. of Coll. Corner v. Town of W. Coll. Corner, 766 N.E.2d 742, 748 (Ind. Ct. App. 2002) (internal quotation marks omitted). 34. Wright, Miller & Kane, supra, §1410 at 58-59; Middelkamp v. Hanewich, 173 Ind. Ct. App. 571, 588, 364 N.E.2d 1024, 1035 (1977). 35. Federman v. Empire Fire & Marine Ins. Co., 597 F.2d 798, 812 n.21 (2d Cir. 1979). 36. Jones, 358 F.3d at 209. 37. Federman, 597 F.2d at 812 n.21. 38. Broadhurst v. Moenning, 633 N.E.2d 326, 331 (Ind. Ct. App. 1994); Jensen v. Laudig, 490 N.E.2d 405, 407 (Ind. Ct. App. 1986). 39. Hilliard v. Jacobs, 927 N.E.2d 393, 401 (Ind. Ct. App. 2010), trans. denied.

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40. Wright, Miller & Kane, supra, §1410 at 52.

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

41. Estate of Kraus v. C.I.R., 875 F.2d 597, 600 (7th Cir. 1989).

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 • MARCH 2015

16. Jewett, 107 F. at 623-24.

20. Id.

If you have matters in California or referrals, we can help you. Please contact Guy Kornblum or his office for information.

20

15. City of Morgantown, W. Va. v. Royal Ins. Co., 337 U.S. 254, 257 (1949).

3. 10 Stephen E. Arthur, Indiana Practice Series: Procedural Forms With Practice Commentary §42.05 at 5 (2d ed. 1988).

California Matters

Guy Kornblum is also available as a mediator.

14. Fox v. Barker, 14 Ind. 309, 310 (1860).

42. Brief of Appellant, Walbridge v. JP Morgan Chase Bank, N.A., No. 02A03-1112-CC-589, 2002 WL 34715643, at *5-11 (Ind. Ct. App. Feb. 9, 2012); Reply Brief of Appellant, Walbridge v. JP Morgan Chase Bank, N.A., No. 02A03-1112-CC-589, 2012 WL 2922176, at *3-8 (Ind. Ct. App. May 31, 2012). 43. 14 Ind. 309.


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44. Walbridge v. JP Morgan Chase Bank, N.A., No. 02A03-1112-CC-589, 2012 WL 3686058, at *1 (Ind. Ct. App. Aug. 28, 2012), trans. denied. 45. 1970 Civil Code Study Commission Comments, reprinted in Harvey, supra, at 467. 46. Reply Brief, 2012 WL 2922176, at *6-7. 47. 1970 Civil Code Study Commission Comments, supra note 45. 48. Originally codified at Rev. St. 1881, §276, recodified at §277 in Burns’ Rev. St. 1894, and finally at §2-226 in 1946. See Obermeyer v. Indianapolis Lien & Credit Co., 251 Ind. 382, 241 N.E.2d 252, 254 (1968); Stewart v. Fralich, 14 Ind. Ct. App. 260, 42 N.E. 951, 952 (1896)..

69. Brief of Appellants, Green Heart, Inc. v. Miller, No. 49A02-1201-PL-00047, 2012 WL 1430678, at *7 & *14 (Ind. Ct. App. Mar. 26, 2012). 70. Brower, 33 N.E. at 673.

Colin E. Flora is an associate civil litigation attorney who focuses his practice on appeals, class actions, business disputes and personal injury cases with Indianapolis-based Pavlack Law, LLC. He obtained his bachelor’s degree in political science from Indiana University South Bend in 2008 where he benefited

from selection into the inaugural class of Herbert Presidential Scholars and graduated with high distinction. In 2011, he graduated with honors from the I.U. McKinney School of Law. Colin has authored several law review articles and more than 100 lengthy posts for the Hoosier Litigation Blog.

49. Burns Ann. Ind. Statutes §277 (1914); McWhorter v. Norris, 9 Ind. Ct. App. 490, 34 N.E. 854, 855 (1893) (quoting Rev. St. 1881, §276). 50. Ind. T.R. 19(E)(2) superseded the other portion of section 226, requiring joinder of the assignor. Obermeyer, 241 N.E.2d at 254; Civil Code Study Commission Comments, reprinted in 2 William F. Harvey & Stephen E. Arthur, Indiana Practice Series: Rules of Procedure Annotated R. 19 (3d ed.). 51. Goldthwait v. Bradford, 36 Ind. 149, 158 (1871). The language is mirrored in other states. See, e.g., McMann v. H.F. Wilcox Oil & Gas Co., 250 P. 780, 782 (Okla. 1926). 52. Gavin v. Buckles, 41 Ind. 528, 530 (1873). 53. Goldthwait, 36 Ind. at 158-59. 54. 469 N.E.2d at 1185-87. 55. Id. at 1186-87. 56. Indiana Dep’t of State Revenue, Inheritance Tax Div. v. Estate of Daugherty, 938 N.E.2d 315, 320 (Ind. T.C. 2010); Orick v. Morris, No. CIV. H 91-21, 1992 WL 18904, at *1-2 (N.D. Ind. Jan. 30, 1992); Gagan v. United Consumers Club, Inc., No. 2:10-CV-026 JD, 2012 WL 729943, at *4 n.3 (N.D. Ind. Mar. 6, 2012). 57. Chauffeurs, Teamsters, 473 F. Supp. at 1253. 58. John R. Gaskin, Note, “The Effect of the Statute of Limitations on Compulsory Counterclaims: An Analysis of Present Indiana Law,” 19 Ind. L. Rev. 787 (1986). 59. Murray v. Mansheim, 779 N.W.2d 379, 386-88 (S.D. 2010); James v. Antilles Gas Corp., 43 V.I. 37 (Terr. Ct. 2000). 60. Walbridge, 2012 WL 3686058, at *2. 61. Ind. Appellate Rule 65(D). 62. Splittorff v. Aigner, No. 63A01-0606-CV-254, 2007 WL 1217998, at *5 (Ind. Ct. App. 2007), trans. and cert. denied. 63. Estate of Daugherty, 938 N.E.2d at 320-21. 64. Id. at 321. 65. Coplay Cement, 983 F.2d at 1441. 66. Id.; 11 U.S.C. §§ 506(a), 553. 67. Justus v. Justus, 581 N.E.2d 1265, 1271 (Ind. Ct. App. 1991), trans. denied. 68. Indiana Dep’t of State Revenue, Inheritance Tax Div. v. Smith, 473 N.E.2d 611, 614-15 (Ind. 1985).

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By Hon. Tim A. Baker

JLAP: saving lives and careers

J

WHERE TO TURN

udges, lawyers and law students with impairments that threaten to derail their careers, their lives and the lives of others have somewhere to turn for confidential and effective help. Unfortunately, many ignore the early warning signs, sending them down a dangerous and avoidable path. Steve, a lawyer in northern Indiana, knows this all too well.1 He ignored the warning signs of substance abuse and depression and found himself in a fetal position, unable to get out of bed. Ultimately, with the help of the Judges & Lawyers Assistance Program, he got his life and his practice back. After working as in-house counsel, Steve took a job in private practice with a large law firm, doing corporate work and mergers & acquisitions. “I worked a million hours both in-house and in private practice. I burned the candle at both ends,” he said. After returning to private practice, Steve found that he did not have many clients, which added to the pressure. “I was just exhausted and beginning to notice some signs of something that I didn’t know what it was at the time, but ultimately it was diagnosed as depression.” According to Steve, things began to unravel when his wife threatened to divorce him and take their kids if they didn’t buy a bigger house. A bigger house soon followed and so did disaster. Steve collapsed the week after buying the new house. He couldn’t get out of bed and stayed in the fetal position. When Hon. Tim A. Baker he finally did manage U.S. Magistrate Judge to get out of bed for Southern District of Indiana work he couldn’t actuIndianapolis, Ind. ally drive into the law Tim_Baker@insd.uscourts.gov firm’s parking garage. 22

RES GESTÆ • MARCH 2015

“I went around the block probably for 90 minutes because I couldn’t turn into the parking garage,” Steve said. He used his cell phone to keep in contact with his law firm and his clients, but he didn’t tell his wife what he was going through. After three days of this charade, an attorney from the firm called Steve’s wife to ask where he was. Steve’s wife confronted him, and Steve tried to pull himself together. He talked with the firm but got no solace. Instead, it made matters worse. The firm told Steve there was no guarantee his position at the firm was safe. Steve avoided getting the help he needed and also began avoiding people. “An impaired lawyer can do a lot of damage to our legal system,” said Terry Harrell, JLAP’s executive director since 2002. “The best way to avoid this is to get help up front.” Harrell, a lawyer and licensed clinical social worker, oversees JLAP’s operations.2 JLAP has a downtown Indianapolis office, which employs two clinical case managers, who are both trained social workers, a northern Indiana case manager and a deputy director, who is also a social worker and a lawyer. An office manager rounds out JLAP’s office staff. In addition, JLAP utilizes about 400 volunteers statewide, who serve as both monitors and mentors. Monitors are responsible for monitoring compliance with an agreement with the Indiana Disciplinary Commission. Mentors are used in a variety of capacities, often even before someone gets into trouble with the Disciplinary Commission. This can range from having a cup of coffee with someone who is feeling particularly stressed to speaking at bar association meetings. Despite the availability of these resources, like many others Steve failed to seek professional help until

it was nearly too late. Steve found himself curled up in bed again unable to go to work. Steve said his wife tried to drag him out of bed, which then made him feel as though he was having a heart attack. He was diagnosed at a local hospital as having a major depressive disorder with suicidal ideation. But Steve’s odyssey was far from over. He separated from his wife, and then his law firm fired him. In the three months that followed, Steve got two DUIs. “I was absolutely suicidal at that point,” Steve recounted. “I was so depressed I couldn’t find the strength to act on my suicidal ideas. It was a very serious situation.” What happened next may have saved Steve’s life. He received a letter from the Disciplinary Commission. He was told that if he wanted to get his law license back he should work with JLAP. Steve vividly remembers something else the Disciplinary Commission told him: “If you don’t, that’s fine too, but you should at least get some help from JLAP.” JLAP provided Steve with some peace of mind and reassurance. JLAP also helped Steve find a new psychiatrist who listened to his concerns about the side effects of his medications. But more challenges awaited. As Steve’s divorce proceedings ramped up, he became suicidal, and he began drinking again. A third DUI soon followed. Steve got back in touch with JLAP, and with JLAP’s help and assistance from others, Steve has been sober since April 2007. “I am very grateful to JLAP for helping me get through that,” Steve said. “I am quite confident I would have not gotten through that without JLAP.” Despite all of this, Steve was still not out of the woods. A little more than two years after contacting JLAP and getting sober, Steve was diagnosed with Stage 3 rectal


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cancer. At that time Steve had almost caught up on his continuing legal education requirements and had nearly gotten his law license back. Steve underwent chemotherapy, radiation and surgery. For a time he could feel himself spiraling downward, but with help from his JLAP counselor he was able to keep a positive attitude. He also received some financial help for his medications from the JLAP treatment fund. Steve’s cancer is now in remission, and he is working as a sole practitioner. “It’s not like it used to be, and that’s okay,” he said. Steve encouraged others who may be experiencing similar issues to seek help early. “If they can call JLAP that would be great,” Steve said. “I know from personal experience I wasn’t willing to do that early enough.”

Steve also encouraged colleagues, friends and family members to reach out to others if they see any early warning signs. According to Harrell, JLAP received 253 “Calls for Help” in 2014.3 A Call for Help is a call by someone seeking JLAP’s assistance or intervention, either on behalf of him or herself or a third party. About half of those calls are on behalf of the caller, and the other half represent third-party calls seeking help for a family member, friend or colleague. These calls comprise about 85-90 percent of the people who use JLAP services, Harrell said. The remaining 10-15 percent are formal referrals from the Disciplinary Commission or the State Board of Law Examiners. Mental health and addiction issues are by far the most common reasons JLAP is contacted.

All self referrals and thirdparty referrals to JLAP are completely confidential. The only time JLAP becomes involved with the Disciplinary Commission is when JLAP is asked to provide assistance in recovery. Such a request may be made either by the attorney facing discipline or by the Disciplinary Commission, but in either case JLAP requires the attorney to sign a release before JLAP shares any information with the Disciplinary Commission. The confidentiality of the process is expressly embodied in Indiana Admission & Discipline Rule 31, which governs JLAP.4 Don Lundberg, executive secretary of the Disciplinary Commission from 1990 to 2008, said he and former JLAP executive director Susan Eisenhauer quickly (continued on page 24)

RES GESTÆ • MARCH 2015

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JLAP continued from page 23 “got on the same wavelength” about the vital importance of confidentiality of JLAP’s services for lawyers who self-referred or otherwise came to JLAP by some route other than through the Disciplinary Commission. Now a partner at Barnes & Thornburg LLP, Lundberg said he and Eisenhauer had many conversations about how to quash any inaccurate suspicions that there were back-channel communications between the Disciplinary Commission and JLAP. Rather, JLAP gave the Disciplinary Commission a meaningful and trusted resource to create probation conditions that were fair, but demanded accountability. “It is outside the Disciplinary Commission’s skill set to micromanage probation for addiction and mental health issues,” Lundberg said. “JLAP filled that void.”

Despite JLAP’s strict confidentiality, people remain hesitant to contact JLAP when early warning signs arise, only to later wish they had reached out to JLAP sooner. Ricky is one such lawyer. “It would have saved me a lot of pain,” said Ricky, who works in central Indiana. Ricky’s warning signs first appeared in law school, when he got his first DUI. “I didn’t think I had a drinking problem,” said Ricky. “I thought I made a bad decision.” Another DUI followed after law school. That’s when the Disciplinary Commission became involved, and his law license was suspended for six months. A couple of months of sobriety followed. “If you would have hooked me up to the lie detector at that point I would have passed,” Ricky said. “I was not going to drink anymore. And within a couple of weeks I was finished.”

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He began drinking again, and a third DUI followed. Another 6-month law license suspension followed, but this time without automatic reinstatement. Ricky went to treatment, which included a recovery residence. He agreed to have JLAP monitor his compliance. His JLAP counselor, Tim Sudrovech, a licensed clinical social worker, became his savior. “He’s such a good friend of mine now,” said Ricky, who hopes to get his law license back. The DUIs forced Ricky to get help. Before doing so, Ricky felt hopeless. But he stressed that life doesn’t have to be a “hot mess” before seeking help. “Even if your practice is just a little off balance, JLAP can help,” he said, adding that with alcoholics a lot of times their careers are over before they seek help. “JLAP is a resource. It can save lives and careers,” Ricky said. February 2015 marked Ricky’s sixth year of sobriety. He still laments the lost hugs from his daughter as among the most painful costs of his addiction. Thankfully, today Ricky describes his life as fantastic. “I’ve been able to be a dad, a husband and a brother. I sit on a handful of boards. All of these things I’m able to do – it’s because I am sober.” Harrell stressed that the program is not just for people suffering with substance abuse issues. Harrell said JLAP can help in all types of situations, such as aging, depression and the stress of practicing law. For example, law practices can suffer if a lawyer is going through a nasty divorce or experiences a serious medical illness or a family member requires hospice care. “They are human beings,” Harrell said. “When we’re going through stressors we drop the ball sometimes.” Indiana State Bar President Jeff Hawkins is an unabashed testament to the varied reasons for seeking


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professional help – and the relief that comes from doing so. At last October’s Assembly Luncheon during the State Bar’s fall meeting, Hawkins shared a very personal story. Three years before that luncheon, Hawkins said, he realized for the first time that he had been living with Attention Deficit Disorder for more than 45 years. Hawkins explained how he had always struggled to read and retain information or to block out a distraction. It wasn’t until Hawkins saw a PBS program called “ADD and Loving It” that he realized he needed professional help. “As the staff of the Judges & Lawyers Assistance Program and the Indiana Disciplinary Commission can tell you, too many seek elusive relief through selfmedication with drugs and alcohol. Fear of stigmatization and marginalization often discourages people from seeking and receiving help. Think about it for a moment: Can you imagine how difficult it is for one of our members to admit that they suffer from mental impairment? I can tell you that crossed my mind, but my own liberating experience inspired me to plow the way for others to discover life after impairment.”5 Soon after getting the medical help he needed, Hawkins’ productivity increased dramatically, and his past struggles with the symptoms of ADD ended. Hawkins encouraged others at the luncheon to “reach out and show love and compassion for our fellow lawyers.” That is exactly what Lundberg had in mind when he worked with Eisenhauer after she became the full-time director in November 1999. Lundberg recounted an alcohol-related case that arose not long thereafter in which a lawyer on probation and under JLAP supervision missed a call-in for a random

alcohol screening. Lundberg had to determine whether to take a zero-tolerance approach or a more holistic approach. Circumstances of the case made Lundberg understand that the missed screen was not an effort to cover up a return to drinking. “We did a little tweaking, but mostly just let the lawyer return to carrying out the terms of probation,” Lundberg said. “This lawyer succeeded, went off probation, and went on to become a JLAP monitor and mentor to many lawyers struggling with alcohol dependency. I see that lawyer today – he is a friend, and it gives me great pleasure to know that we took the right approach by being supportive without enabling.” Harrell laments that not every JLAP case has a happy ending. Fortunately, JLAP success stories abound. While confidentiality rules prevent the public from knowing the extent of how many lives and careers JLAP has helped save, Steve and Ricky can attest to the fact that JLAP is literally a lifesaver. “I felt hopeless,” Ricky said. “I didn’t think there was a way out.” JLAP provided the way. 1. “Steve” is a pseudonym for the actual name of this attorney. Likewise, “Ricky” is a pseudonym for the lawyer referenced later in this article. The author interviewed both lawyers after they agreed to have their stories included in this article. 2. Research shows that lawyers suffer from depression, substance abuse and stress at higher rates than the general population due in large part to social influences in the work environment, heavy workloads, and stress attributed to working with clients. Attorneys and Substance Abuse, Hazelden’s Butler Center for Research (2012). Some estimates report lawyers are four times more likely than the general population to suffer from depression, and the Centers for Disease Control & Prevention ranks lawyers fourth in proportion of suicides by profession. See Rosa Flores and Rose Maries Arce, “Why are lawyers killing themselves?” CNN.com, Jan. 20, 2014, www.cnn.com/2014/01/19/us/lawyersuicides/index.html; Laura Rothstein, “Law Students and Lawyers with Mental Health and Substance Abuse Problems: Protecting the Public and the Individual,” 69 U. Pitt. L. Rev. 531 (2008). The rate of alcohol abuse for lawyers is 18 percent compared to 10 percent for the general population. Hazelden’s

Butler Center for Research, supra. Prescription drug abuse and chemical dependency are also higher among legal professionals. See generally Commission on Lawyer Assistance Programs, American Bar Association (2013); Rothstein, supra. 3. JLAP can be reached by calling 317/833-0370 or toll free at 866/428-5527, or on the Web at www.in.gov/judiciary/jlap. 4. In addition to containing strict confidentiality provisions, Rule 31 explains the purpose of JLAP is “assisting impaired members in recovery; educating the bench and the bar; and reducing the potential harm caused by impairment to the individual, the public, the profession, and the legal system.” Rule 31 further explains that the JLAP committee “will provide assistance to judges, lawyers and law students who suffer from physical or mental disabilities that result from disease, chemical dependency, mental health problems or age that impair their ability to practice; and will support other programs designed to increase awareness about the problems of impairment among lawyers and judges.” 5. Excerpt of “Adapt & Overcome,” ISBA Prez Blog, https://isbaprezblog.wordpress.com (Nov. 12, 2014). Hawkins revisited mental health issues in another Prez Blog post, “Let’s talk about lawyer mental health,” ISBA Prez Blog, https://isbaprez.wordpress.com (Dec. 12, 2014), which also encourages bar members to be JLAP volunteers. Hawkins’ predecessor as ISBA president, Jim Dimos, also has trumpeted the compassion and support JLAP provides. See “You’ve Got a Friend,” ISBA Prez Blog, http://isbaprez.wordpress.com (Feb. 4, 2014).

Tim A. Baker is a U.S. magistrate judge in the Southern District of Indiana in Indianapolis. In January 2014, the Indiana Supreme Court appointed him to Indiana’s Judges & Lawyers Assistance Program Committee.

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By Donald R. Lundberg

Meandering through the back alleyways of Rule 8.4(d): What is conduct prejudicial to the administration of justice? Introduction

W

ETHICS CURBSTONE

hen I was preparing last month’s column reviewing 2014 lawyer discipline decisions, I got to wondering about the several cases in which Rule of Professional Conduct 8.4(d) was in play. For those who have not committed the Rules of Professional Conduct to memory, that rule states: “It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.” What is this prejudice to the administration of justice we talk about? Surely the comments to Rule 8.4 will tell us. Wrong. The comments contain nothing helpful. The Rules of Professional Conduct are primarily a guide to lawyers so they can regulate their own conduct and only secondarily a set of standards against which lawyer conduct is measured in professional discipline proceedings. For both reasons, it is important that lawyers be able to understand what they must do and avoid doing. One can’t refrain from conduct that one doesn’t know is prohibited. But also, when it comes to the government acting as an enforcer of standards, an important element of due process is that it must give us fair advance notice of what we should and should not do to stay out of trouble. One important way to keep the power of government in check is to require it to commit itself in advance to what the rules of the game are so that it is not in a position to take punitive action against citizens just because government Donald R. Lundberg actors don’t happen Barnes & Thornburg LLP to like particular

Indianapolis, Ind. donald.lundberg@BTLaw.com 26

RES GESTÆ • MARCH 2015

behavior. In a nutshell, this is the rule of law. When it comes to regulating conduct prejudicial to the administration of justice, it reminds me of Justice Potter Stewart’s famous observation about obscenity when he stated he couldn’t define it, but he knew it when he saw it. Jacobellis v. Ohio, 278 U.S. 184, 197 (1964) (Potter, J., concurring). That sort of after-the-fact assessment should not be acceptable when, in the case of lawyer regulation, a lawyer’s means of livelihood and professional standing hang in the balance. I guess that’s why I find Rule 8.4(d) to be a little scary. Is it being enforced against lawyers for conduct that could not be predicted in advance as being contrary to that rule? Is it being thrown on top of other, more specific violations as an afterthought? To try to shed some light on the meaning of conduct prejudicial to the administration of justice as it is actually used in the real world, I looked at all decided lawyer discipline cases in which Rule 8.4(d) was charged during the 5-year period from 2009 through 2014. This is a summary of that review.

But first, an opening comment My quest was made difficult by the fact that many lawyer discipline decisions, especially ones decided in relatively brief, published orders rather than fully developed per curiam opinions, often don’t analyze why particular conduct violates Rule 8.4(d). A number of published orders are even more opaque – they describe more than one count of misconduct without specifying to which count or counts the Rule 8.4(d) violation applies. The reader is left to speculate about what counts a particular rule violation, in this case Rule 8.4(d), applies. Moreover, it is unusual for the

Court to go beyond the bare conclusion that the lawyer’s conduct violated Rule 8.4(d) to state how the conduct was prejudicial to the administration of justice. Sometimes it’s obvious, but not always. A case that starkly illustrates this is Matter of Denney, 983 N.E.2d 571 (Ind. 2013). In that case the respondent was charged with nine separate counts of misconduct. The Court identified 15 separate rules, including Rule 8.4(d), the Commission alleged the respondent had violated and the Court concluded had been violated. However, none of the many rule violations were associated with the counts of misconduct. The decision is totally unhelpful in assisting the reader to decipher what it was the respondent did to act prejudicially to the administration of justice. There was one notable exception in which the Court carefully spelled out each of the alleged rule violations that applied to each of four counts of misconduct – the Rule 8.4(d) violation related only to the third of four counts. Matter of Adolph, 969 N.E.2d 8 (Ind. 2012). The case was decided by the Court’s acceptance of a conditional agreement for discipline, so there was no occasion for the Court to closely analyze whether the facts supported a particular rule violation on a count-by-count basis, yet it made the laudable effort to associate rule violations with specific counts. In this case, the Court did give a glimpse into its thinking about Rule 8.4(d): “The reliability of lawyers’ representations is an integral component of the fair and efficient administration of justice.” Id. at 10, quoting Fire Ins. Exchange v. Bell, 643 N.E.2d 310, 313 (Ind. 1994). But I think I might have spotted a tentative favorable trend. In some recent multi-count cases,


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the Court seems to be making an extra effort to associate particular rule violations with specific counts. In the recent case of Matter of Alexander, 10 N.E.3d 1241 (Ind. 2014), a contested case decided by published order, the Court clearly pointed out that an alleged Rule 8.4(d) violation related to Count 2 only. In another recent case, Matter of Geller, 9 N.E.2d 643 (Ind. 2014), which was a per curiam opinion after a contested hearing before a hearing officer, the Court discussed each count separately and specified which rules applied to each count. On the other hand, in a recent published order of discipline based on a conditional agreement for discipline stating two counts of misconduct, the Court simply identified every rule in play without specifying which rule violations applied to which count. It would be a great service to the bar if the Court would identify on a count-by-count basis the rules in play. Because one of the purposes of publicizing disciplinary decisions is presumably to educate the bar, we are better served if we know what rule violations apply to what conduct. In the meantime, I have had to do my best to decipher which counts of misconduct in my survey cases dealt with Rule 8.4(d).

Prosecutors and notaries One category of 8.4(d) cases accounts for the plurality of them. When prosecutors are charged and found guilty of misdemeanors, they will be found to have engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d), even when a non-prosecutor would not be charged when the criminal conduct does not reflect adversely on honesty, trustworthiness or fitness as a lawyer in other respects so as to be a violation of Rule 8.4(b). The rationale for this different treatment is that as law enforcers, prosecutors should not be lawbreakers, and when they are, it breeds public disrespect for the law. I discussed this in an earlier column. “The Disappearing First Free Bite of the DUI Apple,” Vol. 55, No. 9 Res Gestae 33 (May 2012). Eleven of the 52 cases in the survey period fall into this category.

Another case category that will generally draw an 8.4(d) charge, often in addition to other rule violations, involves claims that a lawyer has directly or indirectly mishandled or caused others to mishandle responsibilities as notaries public. Three cases fall into this category. Regardless of the fact that Rule 8.4(d) does not expressly apply to prosecutorial criminal conduct or notary public-related misconduct, these case interpretations of the rule should make it unsurprising that Rule 8.4(d) will continue to be applied to this conduct in the future.

Court-focused misconduct Another group of 8.4(d) cases has as a unifying theme claims that the respondents disregarded duties to tribunals or acted in a way that (continued on page 28)

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A 5-year review of Rule 8.4(d) cases Over the course of the 5-year survey period, 52 lawyer discipline cases dealt with Rule 8.4(d). The breakdown by year is: • 2009 – 7 cases • 2010 – 7 cases • 2011 – 8 cases • 2012 – 8 cases • 2013 – 11 cases • 2014 – 11 cases Although not dramatic, the trend in 8.4(d) cases is upward.

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ETHICS CURBSTONE continued from page 27 caused inconvenience or other harm to tribunals. It is something of a mixed bag of cases. Some respondents violated duties to tribunals to the point where they were held in contempt of court or otherwise sanctioned. See, e.g., Matter of Benson, 9 N.E.3d 659 (Ind. 2014) (disregarded court

order to not distribute funds; held in contempt); Matter of Lehman, 3 N.E.3d 536 (Ind. 2014) (lawyer found in contempt for failing to appear for client’s criminal case; other disregard of duties to courts); Matter of Criss, 999 N.E.2d 848 (Ind. 2013) (failure to appear as defense counsel in criminal cases;

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failure to respond to show cause order); Matter of Weldy, 989 N.E.2d 1252 (Ind. 2013) (lawyer sanctioned by both trial court and Court of Appeals); Matter of Adolf, 969 N.E.2d 8 (Ind. 2012) (lawyer sanctioned for deceptive conduct related to securing default judgments); Matter of Royer, 961 N.E.2d 991 (Ind. 2011) (lawyer held in contempt for disregarding estates and inconveniencing the court); Matter of Shapiro, 937 N.E.2d 806 (Ind. 2010) (bench warrant for lawyer who failed to appear and provide an accounting); and Matter of Mattson, 924 N.E.2d 1248 (Ind. 2010) (contempt of Court of Appeals for filing defective appeal papers). When a lawyer is found in contempt of court or sanctioned, it is no surprise that the conduct would be viewed as prejudicial to the administration. The more interesting point worth pondering is why discipline was pursued in these cases and not in the many other cases in which lawyers are sanctioned. The cases shed no light on this question. One could argue that court sanctions should generally be viewed as sufficient to address court-related lawyer misbehavior and that something more should be present for professional discipline to be added on top of court sanctions. There are good reasons why professional discipline might follow, particularly when the sanctioned conduct is outrageous or part of a pattern. We are left to guess, however, about the additional factors present in the above cases that resulted in the lawyers also being subjected to professional discipline. Even in the absence of contempt findings or sanctions, lawyer misrepresentations that involve courts will often result in a Rule 8.4(d) charge, even though the (continued on page 30)

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ETHICS CURBSTONE continued from page 28 same conduct would generally be covered by (and in many cases was also charged under) Rule 3.3(a)(1) or other rules dealing with dishonesty, such as Rule 8.4(c). See, e.g., Matter of Montgomery, 2 N.E.2d 1261 (Ind. 2014) (lawyer’s false claim that he was suffering from a brain tumor); Matter of Usher, 987 N.E.2d 1080 (Ind. 2013) (knowingly making false statements of fact in a civil action and a disciplinary proceeding to which he was a party); Matter of Adolf, 969 N.E.2d 8 (Ind. 2012) (misrepresenting the reason for the opposing party’s nonappearance); Matter of Kuchaes, 961 N.E.2d 996 (Ind. 2012) (misleading court about prior, related litigation); Matter of Broderick, 929 N.E.2d 199 (Ind. 2010) (signing deferral agreement misrepresenting that client had no prior arrests); Matter of Laterzo, 908 N.E.2d 610 (Ind. 2009) (employing a false

identity ploy in the course of representing a criminal defendant). Sometimes more passive conduct that inconveniences courts will result in a finding that the respondent violated Rule 8.4(d). See, e.g., Matter of Dilk, 2 N.E.3d 1263 (Ind. 2014) (appearing for defendants in mortgage foreclosure cases merely to slow the process down); Matter of Holcomb, 989 N.E.2d 1250 (Ind. 2013) (failure to timely move probate estate actions); Matter of Barkes, 970 N.E.2d 663 (Ind. 2012) (multiple claims of non-diligence in handling actions before courts); Matter of Clifton, 961 N.E.2d 18 (Ind. 2011) (disregard of Court of Appeals criticisms about deficiencies in appellate practice); Matter of Lambka, 950 N.E.2d 301 (Ind. 2011) (general lack of diligence in pursuing matters before courts); Matter of Kelly, 917 N.E.2d 658 (Ind. 2009) (inattention to client

matters before courts); and Matter of Zirkle, 911 N.E.2d 572 (Ind. 2009) (failure to appear at court hearings). In many of these instances, other, more specific rules would also cover the misconduct in question, and we are left to guess why the Commission reached into its quiver and pulled out a Rule 8.4(d) arrow. Sometimes the interference with court functions involves physical violence or other in-court misbehavior and leads to a Rule 8.4(d) violation. See, e.g., Matter of Geller, 9 N.E.3d 643 (Ind. 2014) (physical altercation with former client in environs of juvenile court courtroom); In re May, 992 N.E.2d 684 (Ind. 2013) (physical altercation with client in courtroom); Matter of Butsch, 899 N.E.2d 647 (Ind. 2009) (intoxication while representing clients in court).

Rule 8.4(d) as an add-on One case in the survey period that illustrates the use of Rule 8.4(d) as an add-on when other, more specific rules address the conduct is Matter of McKinney, 948 N.E.2d 1154 (Ind. 2011). In that case a deputy prosecutor handled asset forfeiture cases for the State in which he also had an interest as a private attorney. The obvious charges growing out of this conduct would be based on the rules governing conflicts of interest, including a special rule about conflicts of interest for part-time deputy prosecutors – Rule 1.8(l). But the Commission also charged the respondent with engaging in conduct prejudicial to the administration of justice. The Court agreed that the respondent had violated all rules charged without explaining why a Rule 8.4(d) violation added anything to the case that was not fully covered by the charges based on conflict of interest. The Court also did not explain why the conflict of interest charged in this case,

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which we often find in other cases unaccompanied by a Rule 8.4(d) charge, qualified for having a Rule 8.4(d) violation added. Actions by lawyers that affect the integrity of the lawyer discipline process will often be viewed as being conduct prejudicial to the administration of justice. See, e.g., Matter of Kinnard, 2 N.E.3d 1267 (Ind. 2014) (lawyer filed frivolous defamation suit against opposing party in retaliation for filing a disciplinary grievance); and Matter of Dimick, 969 N.E.2d 17 (Ind. 2012) (lawyer threatened to report professional misconduct as leverage to obtain a settlement proposal).

Odds and ends Setting aside the cases discussed above, this leaves us with a relatively small group of harderto-categorize cases in which lawyers were found to have engaged in conduct prejudicial to the administration of justice. In Matter of Alexander, 10 N.E.3d 1241 (Ind. 2014), the respondent failed to timely disclose a witness’ 180degree change in testimony from when she was earlier deposed by opposing counsel, then called as a witness to testify contrary to how the opposing party expected she would testify. In Matter of Schalk, 985 N.E.2d 1092 (Ind. 2013), the respondent attempted a form of vigilante justice by trying to run an amateur sting operation in an attempt to cause an informant against his client to be caught in possession of marijuana. In Matter of Stoops, 989 N.E.1256 (Ind. 2013), the respondent was charged with violating Rule 8.4(d) as a seeming add-on to the more straightforward claim that he engaged in an improper ex parte communication in violation of Rule 3.5(b). In Matter of Hemphill, 971 N.E.2d 665 (Ind. 2012), the respondent took matters into her own hands by picking up her client’s children

from school after it was alleged by her client that their father was abusing them. In Matter of Cotton, 939 N.E.2d 619 (Ind. 2010), the respondent engaged in ex parte communications and secured modification of a court order by a judge not assigned to a case. Rule 8.4(d) is occasionally used to address prosecutorial misconduct that does not fall squarely within other rules. In Matter of Barce, 934 N.E.2d 732 (Ind. 2010), a prosecutor continued to prosecute cases after putting his law license in inactive status. One of the more perplexing Rule 8.4(d) cases is Matter of Fulkerson, 912 N.E.2d 822 (Ind. 2009). The primary allegation in that case was that the respondent falsified the identity of a former client so she could accompany the respondent to the jail to visit a client who was the former client’s boyfriend. This conduct would,

of course, be misconduct for other reasons, but we are left to guess why it is also conduct prejudicial to the administration of justice since the court system was not directly implicated. The Court did not explain.

Conduct not prejudicial to the administration of justice Of the cases in the survey period involving Rule 8.4(d), the Disciplinary Commission failed to prove its charge in two cases, both decided in 2014. It might be instructive to our effort to understand what a Rule 8.4(d) violation is if we know what it’s not. In Matter of Ogden, 10 N.E.3d 499 (Ind. 2014), Count 2 of two counts of misconduct included the claim that the respondent violated Rule 8.4(d) when he sent a letter (continued on page 33)

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ETHICS CURBSTONE continued from page 31 communicating his views about the handling of civil forfeiture actions to Marion County judges who had jurisdiction over that category of cases. The respondent did not represent clients in any civil forfeiture cases pending before the judges at the time he sent the letter, and he sent a copy to the county prosecutor. This presumably eliminated any basis for claiming that the letter was an improper ex parte communication. Although the rule prohibiting ex parte communications is unclear about whether it applies to lawyers who are not representing parties in a case. It states: “A lawyer shall not communicate ex parte with [a judge] during the proceeding unless authorized to do so by law or court order.” Rule 3.5(b). We don’t know why the Commission did not charge the respondent with violating Rule 3.5(b) – whether it was because the respondent did not represent any parties in proceedings before the judges or because he sent a copy of the letter to the prosecutor. In any event, the Commission charged the respondent with violating Rule 8.4(d) because it believed the letter was “an improper attempt to influence the judges’ decisions” in those cases. Id. at 501. The Court rejected the Commission’s position, stating: “It was not an attempt to communicate with the judges about any particular case without the involvement of opposing parties. There is no allegation that Respondent misstated the law relating to forfeitures.” Id. at 502. In Matter of Devlin, 4 N.E.3d 1180 (Ind. 2014), in a very brief order, the Court found that the Commission failed to prove its entire case, including its charge that the respondent violated Rule 8.4(d). The case appears to have been primarily a claim that a criminal prosecutor failed to disclose exculpatory evidence in violation

of Rule 3.8(d). But the Commission also charged a violation of Rule 8.4(d). It is impossible to tell from the Court’s order whether the Commission charged a violation of Rule 8.4(d) because there was allegedly discrete conduct that was not fully covered by Rule 3.8(d) or whether the Rule 8.4(d) violation was simply an additional charge that added nothing to what was covered by the Rule 3.8(d) claim. If the respondent’s alleged (but unproven) conduct was covered by a specific rule, Rule 3.8(d), it is worth wondering why there is any need to add a general Rule 8.4(d) claim to a claim based on a rule specifically tailored to the conduct at issue.

Conclusion After this little tour de 8.4(d), what do we know that we didn’t before? I posit very little. With some minor exceptions, Rule 8.4(d) misconduct is tied to the conduct of the courts in some way. However, court-related misconduct is often covered by specific rules. Sometimes the Commission charges a lawyer with violating the specific rule without adding on a claim that the lawyer also violated Rule 8.4(d). Other times the Commission adds on a Rule 8.4(d) violation. One can argue both sides of the question whether a Rule 8.4(d) violation should be added in these circumstances. But it would be nice to know what that rationale is and more importantly what leads the Commission to add on a Rule 8.4(d) violation to charges in some cases but not others. On balance, though, this survey reassured me that the Commission rarely turns to Rule 8.4(d) to charge a lawyer with misconduct when no other rule fits and the lawyer could not have reasonably predicted that the conduct would be viewed as being prejudi-

cial to the administration of justice. Ogden might be an exception. In that case, the only basis for the claim that the respondent engaged in misconduct in Count 2 was that his conduct violated Rule 8.4(d). Because the respondent was not acting in a representative capacity (and sent a copy to the prosecutor, to boot), the rule governing ex parte communications was inapplicable. The respondent’s conduct differed little in substance from chatting a judge up at a bar function about similar concerns in the prosecutor presence. This case stands out as a rare example of the Commission relying on Rule 8.4(d) to charge misconduct when the conduct is specifically not prohibited by more targeted rules – in particular Rule 3.5(b). That said, there is something disquieting about a lawyerbystander intermeddling in a case or category of cases by sending a letter to a judge that is the rough equivalent of an amicus curiae brief – regardless of the fact that the prosecutor is sent a copy. Must we end where we began? I’m afraid so. I can’t define conduct prejudicial to the administration of justice, but I think I know it when I see it (or maybe not).

ISBA members: Update your addresses email & postal online at www.inbar.org RES GESTÆ • MARCH 2015

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By Maggie L. Smith and Abigail T. Rom

Appellate civil case law update

RECENT DECISIONS 10/14

I

n October, the Indiana Supreme Court issued five civil opinions and granted transfer in four civil cases. The Indiana Court of Appeals issued 21 published civil opinions. The full texts of these opinions are available via Casemaker at www.inbar.org.

SUPREME COURT DECISIONS Supreme Court declares genuine issues of fact prevent summary judgment on discovery rule and active fraudulent concealment claims, but held that school does not owe parent duty to disclose wrongful acts against student

A severely disabled student choked during lunch and ultimately died. Her parents filed a Notice of Tort Claim against the school well beyond the 180 days required by the Indiana Tort Claims Act, but argued their noncompliance should be excused because of substantial compliance, the discovery rule or fraudulent concealment. Maggie L. Smith A unanimous Frost Brown Todd LLC Supreme Court in Indianapolis, Ind. mlsmith@fbtlaw.com Lyons v. Richmond Cmty. Sch. Corp., 19 N.E.3d 254 (Ind. 2014) (Massa, J.), held that substantial compliance “cannot exist when the claimant took no steps whatsoever to comply with the notice statute.” The Court also held that material issues of fact remain as to Abigail T. Rom whether the discovery Frost Brown Todd LLC rule should apply to Indianapolis, Ind. arom@fbtlaw.com excuse the Lyonses’

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noncompliance with the ITCA notice requirement. The Court then analyzed fraudulent concealment as two separate inquiries: active concealment and passive concealment. The Court concluded that “a factfinder could reasonably find the defendants committed active fraudulent concealment” and, thus, summary judgment was inappropriate. Passive fraudulent concealment requires a relationship between the parties such that the defendant has a duty to disclose the alleged wrongful act to the plaintiff and a breach of that duty. The parents argued a duty to disclose existed based on (1) the common-law doctrine of in loco parentis; (2) the Federal Family Educational Rights & Privacy Act; and (3) a general public policy favoring disclosure of student information to parents. The Court rejected all of these arguments, concluding Indiana had never recognized the doctrine of in loco parentis to confer a duty upon a school to disclose information to a student’s parents; the Family Educational Rights & Privacy Act created no duty; and “although we are sympathetic to the Lyonses’ public policy arguments, we must decline their invitation to establish a completely new legal duty here.” As to this last issue, however, the Court “encourage[d] our General Assembly, charged with making policy for our state, to consider this issue carefully. It may be that, in this age of near-universal and compulsory education, when our schools provide myriad counseling, physical therapy, recreation, and special needs assistance for our children, they should be required to disclose vital information about a student to the persons most intimately concerned – the student’s parents.”

Finally, the Court provided guidance as to how to handle questions regarding whether a plaintiff has complied with the requirements of the Tort Claims Act, declaring that the issues here present legal and factual questions that “are best handled through carefully drafted jury instructions.” The Court then provided a “suggestion” as to how such a jury question could be worded.

Unanimous Supreme Court declares statutory certificates of death that doctors, coroners and funeral directors file with county health departments are public records that county health departments must provide public access to under Indiana Access Public Records Act The Indiana Access to Public Records Act (“APRA”) provides: “Any person may inspect and copy the public records of any public agency during the regular business hours of the agency.” Ind. Code §5-14-3-3(a). Because “each county health department has an unambiguous statutory obligation to collect and maintain death certificates,” the Newspaper contended the death certificates were public records and sought access to the certificates under the APRA A unanimous Supreme Court in Evansville Courier & Press v. Vanderburgh Cnty. Health Dep’t, 17 N.E.3d 922 (Ind. 2014) (Massa, J.), agreed, rejecting the health department’s argument that death certificates are not “public records.” As to the department’s first argument, the Supreme Court held “the General Assembly has drawn a distinction between a certificate of death, which is intended to record cause of death data for use by health officials, and a certification of death registration, which is intended to authenticate the death


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for the purpose of property disposition. The former is a public record, while the latter is confidential.” The Court also rejected the health department’s reliance on a statute that applies to the State Department of Health, not to local health departments. Noting “this conclusion creates an apparent inconsistency,” the Court held it could not “say with certainty that this madness has no method … . Accordingly, we decline the Department’s invitation to ignore the plain language of the statute and second-guess the legislature’s judgment.” The Court concluded its opinion, noting, “[i]n our society, death is an intimate and personal matter. We recognize that public disclosure of the details of a decedent’s death may cause pain to his family and friends. We are also mindful of the importance of open and transparent government to the health of our body politic. Our General Assembly has considered these competing interests and, insofar as we can determine, concluded that the public interest outweighs the private.”

the Crime Victims Relief Act (“CRVA”). The trial court awarded compensatory damages but declined to award exemplary damages or attorney fees under the CRVA. A unanimous Supreme Court in Wysocki v. Johnson, 18 N.E.3d 600 (Ind. 2014) (Rush, C.J.), reiterated, “An actual criminal conviction is not required for recovery under the CVRA; a claimant merely must prove each element of the underlying crime by a preponderance of the evidence. … And just as no conviction is required, nothing in the statute suggests that a criminal charge is necessary, either.” And while a finding of common law fraud “would have been sufficient to support a CVRA award,” such a finding does not require a CVRA award because a trial court has “discretion to impose common-law liability for

fraud as an intentional tort, while declining to impose quasi-criminal CVRA liability.” Thus, even if a court awards compensatory damages, it need not award exemplary damages in excess of the actual loss. “Though the CVRA creates a civil remedy, its reliance on proof of a predicate criminal offense makes it inherently quasi-criminal. So just as the ‘heinousness’ of the defendant’s conduct may properly factor into the factfinder’s decision whether to award exemplary damages under the CVRA, the court’s inchoate sense of the defendants’ criminal culpability is a permissible factor in assessing whether the CVRA predicate offense has been proven.” In addition, if a court does impose CVRA liability, an award of costs and reasonable attorney (continued on page 36)

Liability under Crime Victims Relief Act does not require criminal charge or conviction, but when plaintiff brings alternative common law and statutory theories of relief, trial court can decline to award exemplary damages and attorney fees under Crime Victims Relief Act even if compensatory damages are warranted After purchasing a home, the buyers discovered water leaks, structural problems and grossly substandard electrical wiring to the swimming pool. They sued the sellers for fraudulently failing to disclose those defects on the disclosure form and sought attorney fees and exemplary damages under RES GESTÆ • MARCH 2015

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RECENT DECISIONS 10/14 continued from page 35 fees is mandatory by the terms of the statute, even though additional exemplary damages remain discretionary. But if the plaintiff pleads alternative common law and CVRA theories of relief, the trial court can decline to award costs and attorney fees under the CVRA even if compensatory damages are warranted.

In per curiam decision, Supreme Court orders Father to be given credit for child support payments made On Dec. 31, 2011, the trial court found Father in arrears in the amount of $6,483. In January 2012, Mother was given $7,025.84 from Father’s bank account. At a later hearing on additional arrearage, the trial court did not include a credit for the $7,025.84 paid to Mother in January 2012. In a per curiam decision, the Supreme Court in In re D.M.Y., 17 N.E.3d 272 (Ind.2014), remanded the case to the trial court “for further proceedings, consistent

with this opinion, to recalculate Father’s arrearage to provide him credit for the $7,025.84 payment.”

Supreme Court upholds State Ethics Commission ban of former employee from future executive branch employment Plaintiff was a director of a division of the Indiana Department of Workforce Development, and when she was fired from her job, she kept several items of state property in her possession. She was charged with theft, but those charges were dismissed. The State initiated an ethics proceeding against her, determined her conduct ran afoul of an administrative rule, and barred her from future executive branch employment. A unanimous Supreme Court in Indiana State Ethics Comm’n v. Sanchez, 18 N.E.3d 988 (Ind. 2014) (Massa, J.), concluded that the administrative proceeding did not amount to double jeopardy because

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a jury in the criminal proceeding was never impaneled and sworn. The Court also rejected her argument that the criminal court’s determination that probable cause was lacking for the criminal search was res judicata upon the Commission. The Court concluded, “Although the distinction is a fine one, the question of whether there was probable cause to believe Sanchez had State property in her possession at the time the State applied for its search warrant in March 2010 is not the same as the question of whether there was probable cause to believe she made unauthorized personal use of that property at some time either during or after her employment at DWD.” The Court concluded by holding the evidence supported the administrative decision and the sanction imposed by the Commission.

SUPREME COURT TRANSFER DISPOSITIONS The Indiana Supreme Court granted transfer in the following civil cases: • Bd. of Comm’rs of Cnty. of Jefferson v. Teton Corp., 3 N.E.3d 556 (Ind. Ct. App. 2014) (Mathias, J.), transfer granted Oct. 16 (dealing w/whether waiver of subrogation clause in contract extended to all losses covered by county’s property insurance or whether the claimed loss was damage to work or nonwork property). • Hoagland v. Franklin Twp. Cmty. Sch. Corp., 10 N.E.3d 1034 (Ind. Ct. App. 2014) (Vaidik, J.) transfer granted Oct. 16 (dealing w/whether parents could seek monetary damages for violation of Education Clause in state constitution). • In re L.H., 18 N.E.3d 1004, 2014 WL 5420034 (Ind. 2014), transfer granted Oct. 22 (“The Court of Appeals order is vacated, and the


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case is remanded to the Court of Appeals for reconsideration of the order dismissing the appeal in light of Matter O.R., 16 N.E.3d 965 (Ind. 2014)”). • In re M.R., 18 N.E.3d 1004, 2014 WL 5420039 (Ind. 2014), transfer granted Oct. 22 (“The Court of Appeals order is vacated, and the case is remanded to the Court of Appeals for reconsideration of the order denying belated perfection of appeal in light of Matter O.R., 16 N.E.3d 965 (Ind. 2014)”).

SELECTED COURT OF APPEALS DECISIONS Court of Appeals finds, as a matter of first impression, that Indiana will follow case-by-case approach to subrogation Landlord brought subrogation action against apartment tenant, alleging negligence and breach of contract. In the second appeal from the entry of summary judgment in favor of tenant, the Court of Appeals in LBM Realty, LLC v. Mannia, 19 N.E.3d 379 (Ind. Ct. App. 2014) found as a matter of first impression that whether a subrogation action could be brought for damage to a tenant’s leased premises was determined under a case-by-case approach. The court explained that subrogation is an equitable remedy and courts must weigh “the principles of equity and good conscience” to determine the remedy’s applicability in a given case. It noted that Indiana’s case law involving landlords’ insurers pursuing negligent residential tenants through subrogation is very limited. Tenant urged the court to adopt the position in Sutton v. Jondahl, 532 P.2d 478 (Okla. Ct. App. 1975), in which the court found that “absent an express agreement in the lease to the contrary, landlord and tenant are considered co-insureds under

a landlord’s fire-insurance policy; the insurer, therefore, has no right of subrogation against the tenant to recover payments made under the insurance policy due to fire loss, even if the fire is caused by the tenant’s negligence.” LBM Realty, LLC, 19 N.E.3d at 388-89. Landlord urged the court to formally adopt the case-by-case approach to subrogation, which requires the court to examine a lease as a whole to determine the parties’ reasonable expectations “as to who should bear the risk of loss when a tenant negligently damages the leased premises.” Id. at 391. After weighing the possible approaches, the court concluded “that Indiana should hereby adopt the largely case-by-case approach, finding that a tenant’s liability to the landlord’s insurer for damagecausing negligence depends on the reasonable expectations of the parties to the lease as ascertained from the lease as a whole and any other admissible evidence.” Id. at 393-94.

Other decisions • “Claybridge is not asserting a claim to the title of the Real Estate under an unrecorded deed or unrecorded mortgage ... . Rather, the January 2007 Order in favor of Claybridge and against Deborah is personal as to Deborah. ... In short, as noted in Curry and Trotter, the lis pendens statute is intended to apply to in rem interests in real estate, and any interest Claybridge may have had by virtue of the January 2007 Order did not constitute such an interest. JPMorgan did not have actual notice of the January 2007 Order as it was not entered in the Hamilton County judgment docket, and the Lis Pendens Notice in this case was ineffective for the purpose of providing notice to JPMorgan that its security in the Real Estate under the JPMorgan Mortgage may have been subject to or impaired by the

January 2007 Order.” JPMorgan Chase Bank, N.A. v. Claybridge Homeowners Ass’n, Inc., 19 N.E.3d 324 (Ind. Ct. App. 2014). • “Thus, to hold that an insurer assumes a duty to advise by preparing a valuation would create a duty in nearly every instance, and our supreme court has rejected such an expansive duty. Thus, as a matter of law, an insurance agent does not assume a duty to advise merely through the preparation of a valuation” Cox v. Mayerstein-Burnell Co., Inc., 19 N.E.3d 799 (Ind. Ct. App. 2014). • “Construing the designated evidence and the facts in a light most favorable to J.H. and mindful of St. Vincent’s denial of any intentional infliction of emotional distress to J.H., we hold that there is a genuine issue of material fact whether St. Vincent’s conduct was so outrageous that it satisfies the reckless element of the tort.” J.H. v. St. Vincent Hosp. & Health Care Ctr., Inc., 19 N.E.3d 811 (Ind. Ct. App. 2014) (citing to Comment i and f of the Restatement (Second) of Torts §46). • “The County Commissioners are not stepping into the shoes of the Aviation Board by way of subrogation; they are the executive branch of the very political entity that was ordered to pay the judgment against Dreyer. In fact, instead of being akin to a successor corporation, Clark County is more akin to a parent corporation, as the Aviation Board is a subsidiary unit of the Clark County government, and the Aviation Board’s members are appointed by the County Commissioners. Under these quite unique facts and circumstances, we conclude that the County Commissioners, acting on behalf of Clark County, can maintain a [legal] malpractice claim against Vissing.” Vissing v. Clark Cnty. Bd. Of Aviation Comm’rs, 20 N.E.3d 166 (Ind. Ct. App. 2014). RES GESTÆ • MARCH 2015

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www.inbar.org


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By Jack Kenney

Perjured testimony, unlawful police entry, other holdings

Discretion to order time served for community corrections violation – even if it is less than original suspended sentence Trial judges have a variety of sanctions available to impose when revoking probation or placement in community corrections. See Indiana Code §35-38-2-3(h) (judges may sentence probation violators using any one of or any combination of enumerated options) and Indiana Code §35-382.6-5 (options for violating terms of placement in community corrections). In State v. Rivera, 20 N.E.3d 857 (Ind. Ct. App. 2014), the Court of Appeals found no error in sentencing Anthony Rivera to time served as a consequence for committing a technical violation of the terms and conditions of his direct placement in community corrections, even though it was less than the length of the sentence originally suspended. On appeal, the State argued that the trial court illegally commuted Rivera’s fixed sentence, which was set forth in his plea agreement, and sought to have Rivera serve the remaining 161 days of his 545-day sentence at the Hendricks County Jail or in the Department of Correction. Id. at 860. The appeals court disagreed, holding that the “time-served” sanction was not an illegal sentence modification, but rather a consequence of Rivera violating his initial sentence. In the plea agreement, the parties implicitly contemplated that the trial court retained the power to

review whether Rivera violated the terms and conditions of his placement in community corrections and “decide the consequences for such a violation.” Id. at 862. Moreover, following the rationale set forth in Stephens v. State, 818 N.E.2d 936 (Ind. 2004), the court interpreted the community corrections statutes to give judges flexibility in sentencing when revoking placement. Although other sanctions were available, “ultimately it is the trial court’s discretion as to what sanction to impose.” Rivera v. State, 20 N.E.3d at 862 (quoting Abernathy v. State, 852 N.E.2d 1016, 1022 (Ind. Ct. App. 2006)).

Unlawful police entry required suppression of evidence In Mundy v. State, 21 N.E.3d 114 (Ind. Ct. App. 2014), the Court of Appeals held that detectives’ intrusion onto private property while looking for another person despite clear signs of “no trespassing” was unreasonable and ran afoul of Article 1, Section 11 of Indiana Constitution. Detectives were looking for a man they thought might have been involved with a handgun theft. They went to an address they thought correct and got no answer, so decided to “try another home” located at the end of a long driveway. Id. at 116. Police drove up a long private drive, removed a cable stretched across the drive, drove past a “No Trespassing” sign and a security camera. As they walked toward the home, they smelled marijuana coming from the garage and from Phillip Mundy, who came from the garage. Mundy and the homeowner told police they did not know the man police were looking for, and the homeowner refused to consent to a search. The two were then handcuffed for “officer safety.” Id. Police entered the home without

a warrant and brought out two other occupants, who also told the police that they were at the wrong address. Police then obtained a search warrant for the premises and found 100 marijuana plants. Id. at 117. Applying the balancing of factors set forth in Litchfield v. State, 824 N.E.2d 356 (Ind. 2005), the court held the degree of concern, suspicion or knowledge that police had “was not terribly strong.” Id. at 118. The degree of intrusion was the “most troubling” about the actions of the police, who disregarded clear signs that strangers were not welcome. Id. Distinguishing Baxter v. State, 891 N.E.2d 110 (Ind. Ct. App. 2008), the court noted that the detectives did not simply walk to the front door of the residence along paths that normal visitors would take. Id. at 119. Considering the extent of law enforcement needs, the police were investigating serious crimes, but there were no circumstances such as hot pursuit that would justify their intrusion. Considering the totality of circumstances, the court could not say that the State met its burden of establishing that the actions of the detectives in this case were reasonable. Thus, the search warrant that was subsequently issued based on information gathered unconstitutionally should not have been issued pursuant to the “fruit of poisonous tree” doctrine. Id. at 120-21.

CRIMINAL JUSTICE NOTES 11/14

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n November, the Indiana Supreme Court clarified the burden of proof for manufacturing methamphetamine convictions, while the Court of Appeals issued opinions addressing probation revocations, warrantless intrusions, sentencing enhancements and improper use of perjured testimony at trial.

State’s knowing use of perjured testimony violated due process In Smith v. State, 22 N.E.3d 620 (Ind. Ct. App. 2014), the State’s knowing use of perjured testimony by Antonio Smith’s girlfriend violated due (continued on page 40)

Jack Kenney Director of Research & Publications Indiana Public Defender Council Indianapolis, Ind. jkenney@pdc.in.gov

RES GESTÆ • MARCH 2015

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CRIMINAL JUSTICE NOTES 11/14 continued from page 39 process and required reversal of Smith’s conviction for class C felony burglary. Smith’s girlfriend pled guilty to burglarizing the Dollar General store where she worked, stating she acted alone. The State later charged Smith for the same crime and offered the girlfriend immunity in exchange for her testimony. At trial, she said Smith broke into the store while she served as an accomplice. This testimony was not merely inconsistent with her earlier factual basis; it constituted perjury because it made her two statements mutually exclusive, meaning one was “necessarily false.” See Ind. Code §35-44-1-21(a)(2). The State’s use of the perjured testimony was “knowing” – even though the State was not certain how the girlfriend would testify – because the State was aware there was a high probability she would perjure herself. See Ind. Code §3541-2-2. The State knew the factual

basis of the girlfriend’s plea and granted her immunity from prosecution for perjury in exchange for her testimony at Smith’s trial. In its opening, the State even told jurors they would hear two versions of the burglary from the girlfriend, including a version that identified Smith as the principal. The Court of Appeals concluded that admission of the perjured testimony was not harmless because there was a reasonable possibility that the testimony “might have contributed” to Smith’s conviction. See Chapman v. California, 386 U.S. 18, 23 (1967). Admittedly, if the jury convicted Smith as an accomplice, the perjured testimony might not have contributed to the verdict; however, the jury might also have convicted Smith as the principal, in which case the perjured testimony contributed directly to the verdict. This uncertainty about the basis of the jury’s finding means the girlfriend’s

perjured testimony was not harmless beyond a reasonable doubt. See id. at 24. Mindful of numerous other instances of “prosecutorial misbehavior” the court has recently reviewed, the Clerk was directed to send a copy of the opinion to the Supreme Court Disciplinary Commission.

Probation revocation based on uncertified, unreliable documents Deriq Watters was on probation for a dealing cocaine conviction out of Howard County. To support its claim that Watters had a new conviction, the State tendered a plea agreement and an abstract of judgment purporting to show a robbery conviction in Marion County. Both documents were uncertified. While a probation revocation may rest on documents that are hearsay, the State must establish the documents’ reliability, especially when the documents come from another county. See, e.g., Peterson v State, 909 N.E.2d 494, 499 (Ind. Ct. App. 2009). Reliability can be established by certification, supporting testimony or live testimony of a person present at the signing of a person’s plea deal. Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007). In Watters v. State, 22 N.E.3d 617 (Ind. Ct. App. 2014), the State did not establish the reliability of these documents through JOHN ROBERT PANICO Mediator • Arbitrator • Fact Finder Statewide Dispute Resolution Services Employment • Labor • Civil Rights

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these or any other means. Thus, the trial court violated Watters’ right to due process by basing its decision to revoke his probation on unreliable documents purporting to show a new conviction from Marion County. See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973).

Insufficient evidence to support resisting law enforcement enhancement Enhancement of Antwonna Smith’s resisting law enforcement conviction to a class D felony was improper because the State failed to prove that Smith “inflicted” or “caused” injury to a police officer who scraped his knuckle and fingertip while forcing Smith to the ground. Smith v. State, 21 N.E.3d 121 (Ind. Ct. App. 2014). The officer was injured when he fell to the ground while forcing Smith to the ground. Smith did not “inflict” the injury on the officer and the “cause” of the injury was the officer’s action, not hers. In so holding, the court declined to follow Whaley v. State, 843 N.E.2d 1 (Ind. Ct. App. 2006), which reached the opposite result. Smith v. State, 21 N.E.3d at 125-26.

(Ind. 1995) (defendant’s mental condition may be relevant, but the State may not misuse its access to defendant by attempting to prove his guilt through testimony of its physician). In this case, the State was improperly attempting to prove Weedman’s guilt through the discussion of his withdrawn insanity defense and the doctors’ testimony. Weedman failed to object, and the court could not say that admission of this evidence resulted in fundamental error because evidence supporting the jury’s verdict was overwhelming. Id. at 885. However, the court recognized that a significant amount of evidence was improperly admitted at trial. “At some point, the cumulative effect of the improper evidence would reach a tipping point and make a fair trial impossible … . However, given the avalanche of evidence

of Weedman’s excessive force, we conclude that the tipping point was not reached here.” Id. at 895.

Weight of ‘adulterated’ methamphetamine is weight of final yield, not the intermediate mixture In Buelna v. State, 20 N.E.3d 137 (Ind. 2014), the Indiana Supreme Court clarified the evidence required to prove class A felony manufacturing methamphetamine, which requires possession of at least three grams of “pure or adulterated” meth. Ind. Code §35-48-4-1.1 fails to define “adulterated,” which makes the statute ambiguous. But in analogous situations, the court has held that statutory references to adulterated drugs means the total weight of the delivered product. Id. at 142-43. In this case, the State charged Joseph (continued on page 42)

Admission of withdrawn insanity defense did not constitute fundamental error In Weedman v. State, 21 N.E.3d 873 (Ind. Ct. App. 2014), an aggravated battery prosecution, the trial court erroneously admitted evidence that Derrick Weedman had pursued and later withdrew an insanity defense. Weedman asserted self-defense at trial, and insanity was not at issue. Where, as here, the defendant withdraws his insanity defense before trial, the latitude in admitting other prior conduct becomes substantially limited. Id. at 884 (citing Cardine v. State, 475 N.E.2d 696 (Ind. 1985)); see also Taylor v. State, 659 N.E.2d 535 RES GESTÆ • MARCH 2015

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CRIMINAL JUSTICE NOTES

Applications available for Indiana Court of Appeals

A

pplications for an upcoming vacancy on the Court of Appeals of Indiana are due by April 27. Chief Justice of Indiana Loretta H. Rush recently announced details of the application process for the position that will be available at the end of the summer. The application is online at courts.in.gov/jud-qual. The position on the state’s second highest court is available because Judge Ezra H. Friedlander announced he is stepping down from the bench, effective Aug. 31. Chief Justice Rush thanked Judge Friedlander on behalf of the Supreme Court: “His stellar and dedicated longtime service on the Court of Appeals is appreciated.” Chief Justice Rush encourages attorneys and judges to look at the application, talk to their colleagues and consider whether they can give back to the state by serving. “Indiana has a wealth of qualified lawyers,” she said. “It is important that these thoughtful, service-oriented attorneys consider whether the next chapter in their career includes being a member of the appellate bench.” A candidate must be an Indiana resident in the second appellate district and must have been a member of the Indiana bar for at least 10 years or an Indiana judge for five years. The application requires providing pertinent background information, writing samples, references and educational transcripts. Submitted applications will be considered by the seven-member Indiana Judicial Nominating Commission. The commission includes three lawyers elected by their peers and three citizenmembers appointed by the governor. Chief Justice Rush chairs the commission. The commission will conduct initial public interviews of qualified candidates May 20-22 in Indianapolis, followed by second interviews on June 10. After conducting the public interviews and deliberating in an executive session, the commission will publicly vote to send the three most qualified names to Gov. Mike Pence. The governor will have 60 days to select Indiana’s next Court of Appeals judge from the three names submitted by the commission. The Court of Appeals is asked to consider about 4,000 cases each year and conducts about 70 oral arguments per year. For more information about the Court of Appeals of Indiana, visit courts.in.gov/appeals, and for more information on the Judicial Nominating Commission, visit courts.in.gov/jud-qual. Those interested in applying may contact Counsel for the Indiana Judicial Nominating Commission Adrienne Meiring at 317/2324706.

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continued from page 41 Buelna with class A felony manufacturing methamphetamine after seizing 13 grams of a precursor mixture that he was still cooking. Applying the rule of lenity, the court held that the weight of the adulterated methamphetamine is the weight of the final, extracted product, not the weight of the intermediate mixture still undergoing reaction. Id. at 144-46. The weight of the unfinished chemical mixture is probative of the three-gram weight enhancement only if the State establishes how much final product a defendant’s particular manufacturing process would have yielded if he or she had finished cooking the batch. While “sufficient evidence of final yield need not come from an expert witness” under Indiana Evidence Rule 702, “it may come from a skilled witness under Indiana Evidence Rule 701.” Id. at 146. Here, the State presented no evidence to establish what the final yield would have been if Buelna had finished cooking the 13-gram liquid sample. However, because independent testimony established that Buelna successfully manufactured six grams of methamphetamine, there was sufficient evidence to support his class A felony enhancement. Id. at 147-49.

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


Order these helpful brochures provided in the public interest by the ISBA Probate, Trust & Real Property Section for office distribution and/or speaking engagements Call or email the ISBA for details: 800.266.2581 or isbaadmin@inbar.org


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CLASSIFIEDS Email or fax your classified word ad to Susan Ferrer, sferrer@inbar.org or 317/266-2588. You will be billed upon publication. ISBA members 40¢ per word, $10 minimum Nonmembers 60¢ per word, $15 minimum

Employment Opportunities

LAW PRACTICE FOR SALE: If you want to work for a firm expending 60-80 hours a week making money for the partners, you need not read further. If you want to work for yourself and keep what you earn, read on. If you want to be an integral part of a community, set your own hours, control your life and be able to attend your children’s activities, this is the opportunity for you. I own a well-established, ready-to-go practice. I have been in practice 43 years in northeast Indiana. It is a good place to live and raise a family. This is a turnkey law practice: 2 buildings, all office equipment, systems and personnel are in place. If you are interested, please respond to this ad at the following: Res Gestate, 031501, Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204.

COURT OF APPEALS Administrator: The Court of Appeals of Indiana seeks an Administrator with strong administrative and supervisory skills to provide a full range of administrative services to the 15-member Court. The successful applicant will be a licensed Indiana attorney at the time of hire or by the end of 2017. She or he will manage all facilities, operations and equipment; supervise an administrative staff of 18; oversee implementation of digital case management and e-filing systems; provide legal services to the Court; and serve as liaison to other government agencies, the legal community and the media. The administrator works for the Court under the direction of the Chief Judge. The proposed starting date is Sept. 1. The starting salary is $120,000 with benefits similar to all Indiana state government employees. For a complete description of position duties and requirements, visit: www.courts.in.gov/2621.htm. Applications are due no later than April 30. The Court of Appeals of Indiana is an Equal Employment Opportunity Employer.

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AV-RATED LAW FIRM in northwest Indiana seeks attorney with up to 7 years’ experience. Excellent longterm potential in a growing community. Strong academic background, communication skills and analytical abilities are essential. The right candidate will have experience in civil litigation and will be motivated to work both independently and with other attorneys in a small firm. Send cover letter and résumé in confidence to cparkinson@hwllaw.com. WANTED: 3 sole practitioners interested in sharing office space in Class A building in Carmel. All services provided with an association of attorneys with an overflow of business. Terms negotiable.Please email inquiries to carmellawoffice@gmail.com.

LITIGATION ATTORNEY: Muncie, Ind., law firm seeks an attorney with 5-7 years of civil litigation experience to join the firm to concentrate in areas of personal injury, commercial litigation and medical malpractice. Applicants must possess superior academic credentials and strong verbal and writing skills. Former judicial law clerks are encouraged to apply. Please send résumé, law school transcript and writing samples to: Sara Shade, Beasley & Gilkison, LLP, P.O. Box 1648, Muncie, IN 47308 or email to shade@beasleylaw.com.

Employment Desired INDIANAPOLIS LITIGATION attorney available for wide range of litigation and appellate assignments. More than 25 years as litigator. Have handled more than 30 appeals. Either employment or contract arrangement possible. Ronald G. Sentman, 317/875-6702, RonaldS53@comcast.net.

WORKER’S COMPENSATION. Evansville attorney Kevin R. Bryant seeks referrals on worker's compensation cases statewide. Please telephone 812/437-9991. ERISA CLAIMS, long-term disability, health insurance claims, life insurance claims. Contact Bridget O’Ryan, 317/255-1000, 1901 Broad Ripple Avenue, Indianapolis, IN 46220, boryan@oryanlawfirm.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

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 EMPLOYMENT LITIGATION Indianapolis area attorney available for referrals and co-counsel affiliations on wide range of employment matters. 25+ years of experience representing businesses and employees. Robert S. Rifkin, Maurer Rifkin & Hill, P.C., 317/844-8372.

QDRO PREPARATION by Indiana attorney. Reasonable rates, quick turnaround, assistance at any stage of the dissolution, from discovery through plan and court approval. For information, email Feightnerlawfirm@gmail.com or call 260/755-0873. 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

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 STEVE TUCHMAN, IMMIGRATION. Experienced practitioner for statewide referrals, consultation and co-counsel positions. Lewis & Kappes, P.C., 317/639-1210, STuchman@ Lewis-Kappes.com

WORKER’S COMPENSATION. Indianapolis attorney Charles A. Carlock seeks referrals on worker’s compensation cases statewide. Tele., 317/5735282 or 866/573-5283.


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LONG-TERM DISABILITY. Attorney Charles A. Carlock seeks referrals on claims for long-term disability (ERISA) benefits. Tele., 317/573-5282 or 866/573-5283.

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; tel., 415/421-6700; fax, 415/398-2438; email, johnrbrowne@sbcglobal.net; www.jbrownelaw.com VETERANS DISABILITY. Accepting referrals of veterans' disability, military Medical and Physical Evaluation Boards, Courts Martial, military discharge upgrade and Boards for Correction of Military Records cases throughout Indiana and across the country. Bosley & Bratch, 800/9536224, rbratch@lawyers4veterans.com, www.lawyers4veterans.com FLORIDA ANCILLARY PROBATE in most counties. Call collect, Pavese Law Firm, 239/542-3148, attn: Michael Gennaro, 4635 S. Del Prado Blvd., Cape Coral, FL 33904.

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

ATTENTION Injury/Criminal/Family/ Bankruptcy Lawyers: Phone # 317-3333333 is now available for sale or lease. To discuss, please call 505-710-9245 or 505-999-9999. VACATION CABIN in the Smokies "Simply Incredible" VRBO #657682. 3-bedroom/3.5 bath. Sleeps up to 12 people. Close to all attractions. Lots of amenities. Reasonable rates. Contact atty Kevin R. Bryant at 812/437-9991 or 812/305-6266. MEDIATION TRAINING: Certified 40-hour Domestic Relations Mediation Course, July 17-21, Fort Wayne. This course sells out. To register: www.janetmitchellmediation.com or 260/483-7660.

OFFICE BUILDING FOR SALE: 3,400 sq. ft. commercial property remodeled in 1992 for law offices and updated in 2009 for mortgage broker and insurance offices in Portage, Ind. Possible 4 distinct office areas to use for law office and rental space for other professional services. 5955 Central Ave., price reduced to $149,900. See listing on Web or inquiries may be directed to Thomas Peters at trpeters6@gmail.com. OFFICE SPACE. Law firm at 235 N. Delaware St., Indianapolis, has space available to accommodate 3 attorneys in offices measuring 13’ x 23’ each. Space also available for support personnel. The offices may be furnished or unfurnished and include wireless Internet, phones and access to conference room. The cost of the receptionist would be divided among all of the attorneys. Questions may be directed to: David McClure, 317/221-0800 or davemcclure@att.net. OFFICE SPACE: Attorneys located in the Gold Building at 151 N. Delaware St. in downtown Indianapolis looking to share extra office space. Secretarial services available. Possible referrals. Low rent. Reply to sferrer@inbar.org and reference “Gold Building” office space.

Bradtke Reporting

Licensed & Certified Court Reporters Serving Central & Southern Indiana BradtkeCourtReporters.com CourtReportersIndiana.com (708) 334-3895 • (860) 3-REPORT

LEGAL FEE BILL DISPUTES Need to challenge or support billed-for legal fees and costs? Turn to the one that insurers and attorneys throughout the U.S. turn to when fee billing disputes occur. Legal fees and costs reviewed in all types of transactions and cases. Former chair of the Indiana State Bar Association Legal Ethics Committee

John Conlon, 317-645-0587 jconlon@conlonassociates.com APPRAISALS

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Cynthia A. Eggert Paralegal

RES GESTÆ • MARCH 2015

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By ISBA Past President Rabb Emison

FAIR COMMENT CLASSIC

Civil practice Editor’s Note: The following column first appeared in February of 1992. A treasured and longtime contributor to Res Gestae, Rabb Emison of Vincennes, Ind., passed away on Sept. 1, 2010.

statement. I stand even when the rulings are killing me. I stand out of respect for the court, the Constitution, the Bill of Rights and my client.

Don’t show your anger at anyone until you’re close enough to hit him with an ax. – A politician’s advice

3. Place your own calls. The testier the case, the more I want to make the call to the other lawyer. This is a chance to let that lawyer know I respect his/her opinion. I learn a lot. Pet peeve – lawyers who have a secretary get me on the line so I wait while he/she gets on the line. This makes a tiny suggestion that my time is less valuable. In the preferred style I got a call from Matt Welsh when he was governor. He was on the line when I picked up the phone. He called to say I would not be reappointed to a state commission. Not a critical event as state activities go. I was impressed! Since that day I have always placed my calls and suggest you do, too. You are excused if you are busier than a governor.

C

hange in practice is constant. The limitation on solicitations is uncertain, emphasis on high incomes is prominent, and – it appears to me – lawyers waste energy being rude to each other. Rudeness wastes time and client’s money as well. We all know that our function is to do the best we can for the client, subject to the Rules of Professional Conduct. Why is it that when we advance a client’s cause, we think it is an advance to battle over egos? As the stakes increase, we become polarized, frequently as plaintiff or defense counsel. I am a defense lawyer. Once, while representing a plaintiff, I was treated in a condescending, patronizing manner by the defense counsel. Do I act that way? I hope not. That conduct energized my work to defeat my adversary. It was a good lesson. When I meet him again, I will remember. Civil behavior serves two ends. You keep your focus on the issue, and you keep your adversary’s temperature down.

Some simple rules 1. Do not belittle the other lawyer, certainly not in court. I have depositions on my desk in which lawyers offer gratuitous insults to others. There they are, permanent records, pointless and irrelevant, useless except to goad the other lawyer. 2. In court, stand up when you speak to the judge. In a trial, stand when you object. You can use the time getting to your feet to formulate the objection. Seated, lounging like a couch potato, you lose emphasis in your

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I finished a case recently with a lawyer who never called me. Not once. His secretary made all his calls. At the end she called to negotiate the settlement with me. What was he doing that was more important? 4. If you practice in Indianapolis, do not assume that the lawyer in the boonies is dumber. I run into this now and then, and there is no basis (believe me) for this presumption. It does not follow that a lawyer in Chicago is smarter while in turn dumber than a lawyer in New York City. If you practice with this belief, then keep it to yourself. It will only do you harm. Finally, at the end of a trial, if you lose, a bad temper does not change the result. If you win, the foreman of the jury has just handled the ax for you. Email your “Fair Comment” for publication consideration to Susan J. Ferrer, editor, Res Gestae, at the Indiana State Bar Association, sferrer@inbar.org.


Profile for Indiana State Bar Association

Res Gestae - March 2015  

March 2015 edition of Res Gestae, the journal of the Indiana State Bar Association

Res Gestae - March 2015  

March 2015 edition of Res Gestae, the journal of the Indiana State Bar Association

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