DIVERSIFYING YOUR PORTFOLIO OF MENTORING RELATIONSHIPS
WANTED: 60 MENTORS IN 60 DAYS! GOVERNMENT TAKES CENTER STAGE DURING LDA SESSION
Vol. 58, No. 8
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The Journal of the Indiana State Bar Association
RES GESTÆ April 2015
8 LDA AT THE STATEHOUSE
GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino firstname.lastname@example.org ADVERTISING Chauncey L. Lipscomb email@example.com WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey firstname.lastname@example.org
PRESIDENT’S PERSPECTIVE Jeff R. Hawkins, Sullivan, 2014-2015
RECENT DECISIONS 11/14
RECENT DECISIONS 12/14
CRIMINAL JUSTICE NOTES 12/14
FAIR COMMENT: “60 MENTORS IN 60 DAYS!”
25 CONDUCT EDITOR Susan J. Ferrer email@example.com
Vol. 58, No. 8
Donald R. Lundberg, Indianapolis
Curtis T. Jones and John Z. Huang, Indianapolis
D. Lucetta Pope and Larry E. LaTarte, South Bend
Prof. Joel M. Schumm, Indianapolis
Justice Steven H. David, Zionsville
F E AT U R E S
GOVERNMENT TAKES CENTER STAGE DURING LDA SESSION By Bill Brooks, Indianapolis
DIVERSIFYING YOUR PORTFOLIO OF MENTORING RELATIONSHIPS By Brita A. Horvath, Indianapolis
LEGAL ETHICS COMMITTEE OPINION NO. 1 OF 2015 Participation in discriminatory organizations – the scope of Rule 8.4(g)
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 • APRIL 2015
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Professional liability insurance coverage: setting the record straight
W 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 • firstname.lastname@example.org Administrative Assistant Barbara M. Whaley • email@example.com Associate Executive Director Susan T. Jacobs • firstname.lastname@example.org Administrative Assistant Julie A. Gott • email@example.com Director of Communications Susan J. Ferrer • firstname.lastname@example.org Director of Public Relations & Social Media Carissa D. Long • email@example.com Graphic Designer & Photographer Vincent Morretino • firstname.lastname@example.org Legislative Counsel Paje E. Felts • email@example.com Director of Special Projects Section & Committee Liaison Maryann O. Williams • firstname.lastname@example.org Administrative Assistant Barbara L. Mann • email@example.com Local & Specialty Bar Liaison Catheryne E. Pully • firstname.lastname@example.org Administrative Assistant Kimberly D. Latimore • email@example.com Director of CLE Christina L. Fisher • firstname.lastname@example.org Assistant to Director of CLE Kassandra Adams • email@example.com Section & Committee Liaison Melanie Zoeller • firstname.lastname@example.org Director of Meetings & Events Ashley W. Higgins • email@example.com Membership Records & Technology Coordinator Kevin M. Mohl • firstname.lastname@example.org Bookkeeper & Convention Registrar Sherry Allan • email@example.com Receptionist Chauncey L. Lipscomb • firstname.lastname@example.org
hen the Indiana Lawyer ran a story in December about the Indiana State Bar Association’s legislative proposal for a new statute of repose, the story quoted me as follows: ISBA President Jeff Hawkins said the proposal to limit the timeframe for malpractice was developed by the bar’s Probate, Trust & Real Property Section, driven in part by difficulties retiring lawyers faced planning for potential liability. “Their eyes were bulging when they found out how difficult it would be to get potential liability coverage for the rest of their lives,” Hawkins said. “They found they could not be responsible enough. The insurance industry didn’t have a solution to address a potentially open-ended responsibility.”
Soon after the article’s appearance, I had an enlightening conversation about the subject with Jennifer Ritman, founder and president of Ritman & Associates, the State Bar’s endorsed professional, business and personal insurance agency. Jennifer explained that her agency has helped many retiring and disabled lawyers obtain professional liability coverage for prior acts and omissions. That conversation led me to seek her help in dispelling professional liability insurance misconceptions through a Q&A installment of this month’s “President’s Perspective.” Hawkins: Jennifer, thank you for helping me clear the air on this important insurance subject. As my quoted comments indicated, I thought a retiring lawyer would have to pay professional liability insurance premiums for life in order to maintain “prior act” professional liability coverage. How was I mistaken? Ritman: Most claims-made policies offer Extended Reporting Period (ERP) options. So what is an ERP? You somewhat have to start at the beginning to understand what a claims-made policy is, Jeff, and your comment about having to pay premiums for life is why the carriers do, in most cases, offer ERP options. Claims-made policies basically read: “You have to have a policy in place at the time the claim is made.” This is where the misunderstanding and difficult maneuvering of these policies begin. If you have to have a policy in place to report, then how do you retire, merge or laterally move to another firm? This is where the ERP comes in – it does exactly that – it extends the period of time to report from an expiring policy. So, in order
for you to not keep paying premiums when you retire, you obtain an ERP so that you have more time to report claims/incidents in the future for work you did in the past that would’ve been covered by the expiring policy. The question: Does the policy offer the ERP only for the entire firm, or does the policy offer the ERP to individual members of the firm? There is generally more than one type of ERP as well. One of our favorite carriers has the following types available: Option to Purchase Optional ERP, Option to Purchase Non-Practicing ERP and, believe it or not, Option to Elect Non-Practicing ERP at no additional premium. Hawkins: In what kinds of situations should lawyers seek tail coverage? Ritman: The term “tail” coverage is often misunderstood or used to label multiple types of coverage. Some folks refer to an ERP as tail coverage, and some folks refer to tail coverage as “prior acts” coverage. You always want to maintain your “prior acts” coverage if you can, and you certainly want to elect ERP coverage when retiring. You may need to purchase ERP coverage if your firm is merging with another firm and the new carrier will not provide “prior acts” (tail) coverage. There are ways generally to get this type of coverage underwritten, but you have to know how to maneuver the carriers to get this done. Hawkins: Are there any differences in the coverage effects and claims procedures between tail coverage claims and claims during active practice? For instance, can the carrier drop coverage after a tail claim? Ritman: Once ERP coverage is issued, it is non-cancellable by the carrier and non-renewable by the purchaser. So a carrier cannot cancel your ERP once issued, and this is generally why if there’s a charge (continued on p. 7)
PRESIDENT’S PERSPECTIVE JEFF R. HAWKINS email@example.com 2014-2015 RES GESTÆ • APRIL 2015
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PRESIDENT’S PERSPECTIVE continued from page 5 associated with the ERP it has to be paid in full up front, prior to issuance. Limits of liability can come into play here if you have an ERP with $1 million in coverage and you have a claim or claims that exhaust that limit. Then, simply put, the limit is exhausted, and you would have no further coverage. A claim attached to an active policy versus a claim attached to an ERP policy should have no difference in how the claim is handled. However, a claim on an active policy could trigger rate increases or the potential of being non-renewed. Hawkins: What else should lawyers know about tail coverage? Ritman: You really have to understand the complexity of claimsmade policies, how they work and what ERP options your carrier offers. You do not want to be in a position where you are getting close to retirement and you continually shop and carrier jump to save a few dollars. You want to plan with your agent in advance for things like retirement so that your agent can guide you to the best solution. Maybe you are one year away from retiring, and you’ve been with ABC insurance company the last two years, and the carrier is talking rate increase. Don’t just immediately shop and move your coverage. You may be better served to pay the increase for the additional year of
coverage and be able to elect the ERP at no additional premium at the end of the next policy period. Hawkins: Thank you, again, Jennifer! Your responses have confirmed to me the value of this discussion. I encourage ISBA members to follow up with Ritman & Associates about specific professional liability insurance questions
and check with the ISBA staff about all of our membership benefits and endorsed service providers. A complete listing of ISBA membership benefits and endorsed service providers appears on the ISBA website at http://tinyurl.com/ISBAmember-benefits (once you’ve signed in, discount codes & such are revealed to you).
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RES GESTÆ • APRIL 2015
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By Bill Brooks
Government takes center stage during LDA session
LEADERSHIP DEVELOPMENT ACADEMY
f any of the 16 women who are part of the current 25-member Leadership Development Academy (LDA) class were looking for role models, they came to the right place when they attended the academy’s second session at the Indiana Statehouse in downtown Indianapolis. They heard from Indiana Chief Justice Loretta H. Rush. They heard from Judge Jane E. Magnus-Stinson of the U.S. District Court for the Southern District of Indiana. And they sat in on an Indiana Court of Appeals oral argument presided over by Chief Judge Nancy H. Vaidik, who was making her second appearance at the academy, having spoken to the group at the opening retreat a month earlier. Women role models, women who bear witness by their careers of the achievement possible in the legal profession – this particular development wasn’t entirely intentional. The LDA Committee, chaired by Judge Thomas J. Felts of the Allen Circuit Court, strives for a diversity of respected speakers. What developed in mid-February was a program accented by women of distinction. Speaking in separate sessions, each brought similar messages to the 25 attorneys. “Your reputation is just huge,” said Chief Justice Rush, who counseled the attorneys to always be JOHN ROBERT PANICO
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prepared. “You say something incorrect, or close to incorrect, to a judge – well, judges talk to each other.” She also advised the attorneys to be careful with social media, noting the scrutiny she went through in the Supreme Court selection process. How many young attorneys, she wondered, would be comfortable with anyone going through all of their social media postings? Rush, a former juvenile court judge who has a deep and abiding interest in justice for children, said she was most struck by the response of one young man when she asked what “character” meant? “Character is doing the right thing when no one’s looking,” the youngster responded. Magnus-Stinson, too, spoke about the importance of character. “Your word is all you have,” she said. “Your reputation is all you have.” In addition, she pointed out the significance of family, a subject also important to Chief Justice Rush. Raising four children, Rush said, was her proudest achievement. “You can lose yourself in the job,” she said, noting that the most important factor in a career is balance – not billable hours. “When someone tells me, ‘I billed 2,500 hours last year,’ I think, ‘poor you.’” Both jurists spoke to the need for, as Magnus-Stinson said, “connecting the dots among people.” She stressed the benefits of pro bono work as well as the importance of mentoring. Rush said getting involved with the bar association early on was key to her career, allowing her to meet more attorneys and pick up more mentors. Also, “we need more lawyers in the legislature,” she added. “We need lawyers on city councils, on school boards, on church boards.”
Magnus-Stinson had a mentor story to tell as well. She said when she became a judge on the Marion Superior Court, without any experience on the bench, she called “Pat Gifford, the most respected criminal court judge in the state, and asked her to be my mentor.” Other highlights of the twoday Leadership Development Academy session included: • A panel discussion titled “How to Run For (or Away From) Office,” featuring Tom Easterday of Subaru of Indiana Automotive, Inc., Lafayette; former State Rep. Ralph M. Foley, Martinsville; Marion Superior Court Judge Heather A. Welch; and Daniel L. Askren, Attica, a graduate of the 2014 Leadership Development Academy who ran for Fountain County prosecutor while the academy was in session. • A discussion about the ISBA, which featured Executive Director Thomas A. Pyrz; President Jeff R. Hawkins, Sullivan; President-Elect Carol M. Adinamis, Westfield; and Matthew J. Light, Indianapolis, chair of the State Bar’s Young Lawyers Section and a LDA graduate. • A talk by Indiana Attorney General Gregory F. Zoeller, who joined the group for lunch along with other dignitaries such as Indiana Solicitor General Thomas M. Fisher; Indiana Inspector General Cynthia V. Carrasco, who is also an LDA grad; Supreme Court Justices Robert D. Rucker, Steven H. David and Mark S. Massa; and Chief Judge Vaidik with some of her colleagues on the Courts of Appeals, Judges Ezra H. Friedlander, L. Mark Bailey and Melissa S. May. • A session on media relations and crisis communications, which was moderated by ISBA Past President James W. Riley, Indianapolis, and included reporter 2015
Photo by Vincent Morretino
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ISBA Pres. Jeff R. Hawkins (center) discusses the importance of engagement with the legislature with members of the LDA. Rafael Sanchez of RTV6, Jennifer Dzwonar of the Indianapolis-based Borshoff agency and Terry W. Tolliver, deputy director of the AG’s consumer protection division and another academy grad as well as a member of the LDA’s organizing committee. Among the lessons: Don’t wait until the phone rings to develop a media strategy. Build relationships with members of the media. Understand the difference between “off the record” and “background.” (The latter is strongly preferable to the former.) And don’t run and hide while the 24-hour news cycle grinds on. • The well-oiled machine that is the Leadership Development Academy did have a little engine trouble during the Statehouse session when a planned gathering with several legislators fell through because the Indiana General Assembly was absorbed in floor sessions confronting the crisis involving ISTEP testing. But the ever-intrepid LDA Committee had a backup plan. Lesley A. Crane,
the House Speaker’s chief of staff, and Jeffrey L. Papa, the Senate chief of staff, had been invited, and they were able to attend. The LDA Committee added a few bar stars of its own (Justice David, Judge Felts, Jim Riley and ISBA President Jeff R.Hawkins) to round out the small group discussions. Crane and Papa fielded questions about crisis management, the legislative process and the role of attorneys in the legislature, while the others talked about the importance of attorney engagement in government, whether they run for office or not; the merits of networking; and being involved in one’s bar association. Then, in a brilliant off-script move, the committee decided to show the LDA class what state government in action looked like. They walked down the halls of the Statehouse and into the Senate gallery to observe the Senate in session – where, lo and behold, those same lawyer-legislators who had been invited to attend the LDA discussion were hard at work,
using their legal skills to argue against a piece of legislation that would affect litigation. This impromptu addition to the day was an instant favorite among academy members, as it provided a realworld demonstration of what, until that point, had simply been a discussion about the importance of lawyers in the legislature.
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By Donald R. Lundberg
Monroe Freedman (1928-2015): the passing of a legal ethics giant
rof. Monroe Freedman died on Feb. 26 at the age of 86. He was a true giant in the field of legal ethics. He was deeply engaged in legal ethics well before the “Where were the lawyers?” question spawned the postWatergate revival of legal ethics. His passing was noted in major obituaries in both the New York Times and the Washington Post – pretty impressive for someone whose life’s work was largely devoted to debates within a professional niche. Yet he grappled with important questions that had deep implications for the administration of justice in our society. He was a professor of law and former dean of the Hofstra University Maurice A. Deane School of Law, the home base for his extraordinary career in the law. At the time of his death, he was still teaching, writing and actively playing his longstanding role as legal ethics gadfly and provocateur. He was active to the end as a co-blogger on Legal Ethics Forum, one of the go-to blogs for both ethics geeks and dabblers in the field. I did not count Prof. Freedman as a personal friend, although I met him on several occasions and had the pleasure of hearing him speak. However, many years ago something I wrote caught his attention, and I later received a handwritten note from him commenting on it. Thereafter, I began regularly receiving envelopes in the mail from him containing his latest publication, occasionally accompanied by a short Donald R. Lundberg personal note.
Barnes & Thornburg LLP Indianapolis, Ind. donald.lundberg@BTLaw.com
RES GESTÆ • APRIL 2015
Prof. Freedman was a passionate believer in the imperative of undivided loyalty to clients, especially when they were aligned against the power of the State. He wrote often and famously on this theme. Perhaps he is best known for his dissection of the ethical fault lines within what he called the perjury trilemma. A lawyer finds herself in a perjury trilemma when a client is expected to give or has given perjured testimony. The horns of the perjury trilemma are these: lawyers are ethically obliged to know as much about their clients’ cases as they can and to advocate zealously for them; lawyers must keep their clients’ confidences; and lawyers are obliged to protect tribunals from being infected with false testimony. Prof. Freedman’s classic discussion of the topic first appeared in his seminal article “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions,” 64 Mich. L. Rev. 1469 (1966). Client perjury presents a trilemma because a lawyer cannot fulfill all three duties. By knowing as much as possible about the client’s case, the lawyer may well learn that what the client plans to say in court is not true. By avoiding knowledge, the lawyer is not acting zealously and competently for the client. By informing the court that a client plans to commit, is committing or has committed perjury, the lawyer breaches the duty of confidentiality and violates the client’s trust. Lawyers who have faced this trilemma in real life know that it is the stuff of sleepless nights. That’s because there is no perfect solution that respects all of the lawyer’s conflicting duties. We have constructed some purported “solutions,” but
they are not solutions at all. If the lawyer avoids knowing the facts that would reveal client perjury, the client will still testify falsely without the lawyer’s plausible complicity, but the tribunal will still be infected with perjured testimony. If the lawyer informs the court, not only has client confidentiality been breached, the lawyer, in fairness to the client, might need to tell the client that being candid with the lawyer means the lawyer will have to inform the court about anticipated or completed perjury. That is unquestionably a signal to clients to censor what they tell their lawyers. If the lawyer withdraws when the lawyer knows or suspects the client will commit perjury, the client will have been educated to know not to be so honest with his next lawyer and will then be free to commit perjury without that lawyer’s knowledge. One popular solution is allowing the client to testify using narrative testimony. That is, the client is asked a “what happened next?” question, whereupon the lawyer steps back and allows the client to testify without the lawyer directly asking a question that will extract perjured testimony. Ironically, we somehow think this is the least bad solution, but it is probably the worst. The client still lies through his teeth; the lawyer knows the client is lying; the court and the jury are still exposed to false testimony; and unless they are idiots, they know darned well from the circumstances that the client is lying. The narrative solution dishonors every ethical value in play in the perjury trilemma. The lawyer is disincentivized to learn facts that reveal client perjury. The lawyer’s switch to the narrative format uses a wink and a nod to reveal client confidences. The lawyer does not
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act as the client’s zealous advocate. And the court is still exposed to perjured testimony. The Rules of Professional Conduct provide their response to the perjury trilemma. It is a solution, but it is not one that respects all of the ethical values in play. The solution is found in Rule 3.3(a)(3): “A lawyer shall not knowingly offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”
Prof. Freedman thought that amidst the perjury trilemma, if a value has to give way (which it must) it should be the duty of candor to the courts. This was not, of course, because he thought lying to courts was a laudable thing. In fact, he was clear that it was always unethical for lawyers to expressly or by indirection coach clients to testify falsely. The lawyer
who is genuinely faced with a perjury trilemma is the victim of having learned about client perjury because the lawyer has done a good job of understanding the client’s case. The trilemma is created by the lawyer’s passionate commitment to the lawyer’s role as champion of the individual aligned (continued on page 12)
Rule 3.3(a)(3) deals the trump card to the duty of candor to the tribunal. It is true, especially in criminal cases, that the lawyer has to get all the way to “knowledge” before she is compelled to act. And “knowledge” means actual knowledge of the fact in question, albeit informed by inferences drawn from the circumstances. Rule 1.0(f). But at that point, the duties of client confidentiality and zealous representation must yield to duties to the tribunal. While the solution of the Rules of Professional Conduct is both orthodox and compulsory, it is an imperfect solution that builds tensions into the attorneyclient relationship. The thought of telling a court that a client has committed perjury is so repulsive to most lawyers that they engage all types of mental gymnastics to avoid finding themselves in the position of actually knowing the client plans to commit or has committed perjury. In doing so, effective advocacy suffers.
RES GESTÆ • APRIL 2015
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ETHICS CURBSTONE continued from page 11 against the power of the State. Seen this way, in these circumstances the lawyer is the one person who should be, in the Freedman view, the constant and unblinking ally of the client.
to argue that evidence in closing. Lawyers who withdraw under these circumstances are simply washing their hands of a difficult problem and passing it along to another lawyer.
Prof. Freedman was not reticent about owning the implications of his position. He agreed that lawyers are obliged to act competently by confidentially counseling their clients about the legal impropriety and, often, the tactical imprudence of giving false testimony – or the imprudence of testifying at all. But once a fully counseled client determines to testify in a way the lawyer knows is false, the lawyer has to be all in. In Prof. Freedman’s world, lawyers should not be constrained to use the flabby narrativetestimony approach as a dodge. Instead, they should be free to ask direct questions that they know will elicit perjured testimony. And they should be free, indeed required,
Thoughtful and highly respected legal-ethics experts disagree with Prof. Freedman’s approach to the perjury trilemma. Indeed, most do. See, e.g., Stephen Gillers, “Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma Is Wrong as a Matter of Policy and Constitutional Law,” 34 Hofstra L. Rev. 821 (2006). As already noted, the Freedman view lost out under the Rules of Professional Conduct and the weight of other professional opinion. And the U.S. Supreme Court had little good to say about the Freedman position that a lawyer’s primary duty is to the client when other duties are in conflict. Nix v. Whiteside, 475 U.S. 157, 166 (1986)
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(not ineffective assistance of counsel for lawyer to inform client that lawyer will disclose perjury to the court if client testifies falsely; “Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.”). But at the end of the day, even though the Freedman approach did not prevail, his critic Prof. Gillers noted, “We are indebted to him for raising the issue and making us think hard about the answer.” Without the Freedman solution to the perjury trilemma available, lawyers are now left with the difficult burden of thinking hard about what they actually “know” as they grapple with the troubling professional responsibility issues presented when a client might testify falsely. It is the outcome of that query that determines whether we must keep client confidences or turn into our own client’s informer and make a disclosure to the tribunal. As we engage in that struggle, we should remember that we owe a debt to Prof. Freedman for shining a light on one of the most difficult questions in legal ethics and for continuing to push against complacent attitudes that we had figured out the answer.
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By Brita A. Horvath
Diversifying your portfolio of mentoring relationships
Senior Judge Kenneth H. Johnson, Indianapolis, served as the presiding judge of Marion Superior Court #2, Civil Division, for 30 years. He also served as master commissioner of the Superior Court’s Complex & Mass Tort Docket and co-authored the Mass Tort Docket Rules. According to Judge Johnson, during his many years on the bench, he was “fortunate to ‘employ’ more than 30 interns, young lawyers and law students.”
Lumi Nodit, Indianapolis, is a deputy attorney general in the Consumer Protection Division of the Office of Indiana Attorney General. She is a graduate of Indiana University McKinney School of Law. Lumi is also a graduate of the Indiana State Bar Association’s Leadership Development Academy. She loves learning new languages and enjoys traveling, hiking, painting, gardening and rescuing pit bulls. 14
RES GESTÆ • APRIL 2015
here is little doubt that mentoring relationships are assets that provide short and long term guidance and support. Like many other investments, the candid exchange of advice and insights between mentors and mentees increases in value over time. By design, all mentoring relationships are embedded with difference as it relates to tenure, pairing a more experienced mentor with a less experienced mentee. Often this distinction in tenure presents generational differences that the mentors and mentees accept from the outset, with both parties equally benefitting from exposure to different generational experiences and approaches. Mentors and mentees alike identify these generational differences as an enhancement to their mentoring relationship. Beyond tenure, however, there is a natural tendency for these relationships to stem from general likeness or affinity, though there are tremendous benefits from mentoring relationships that are not developed out of obvious commonalities. The interviews below provide examples of mentoring across difference and feature mentor-mentee pairings who participated in the Indiana State Bar Association’s Mentor Match program. Through a series of conversations, the participants share how they have successfully leveraged their differences and acquired greater access to a stream of candid and valuable insights and advice. After reviewing these accounts, it was evident that these mentor-mentee pairings considered their relationships an important factor in their personal and professional development and success.
In addition to generational differences, what other differences were present in your mentoring relationship – e.g., race, gender, ethnicity, LGBT, disability, religion, socio-economic, geography, type of practice, education? Senior Judge Kenneth H. Johnson (paired with Luminita Nodit): Our mentor-mentee relationship contained elements of nearly all of the above. I am male; she is female. She received her J.D. from what was then known as the I.U. School of Law-Indianapolis in May of 2010. I received my J.D. from the same law school in May of 1972. She earned a bachelor of laws degree from Alexandru Ioan Cuza Law School in Romania in 2000. She studied for her masters of laws (business law) from West University of Timisoara, Romania, completing most of her course work before leaving Romania. She was a new lawyer, looking for employment in a public or private law firm. I, on the other hand, had been on the superior court bench for more than 35 years, so my knowledge of the inner workings of private law firms, when we began, was very meager. Lumi Nodit (paired with Judge Johnson): When I graduated from law school in 2010, I was somewhat reluctant to talk to male judges, especially trial court judges. My previous interactions with the judiciary were mostly with women appellate judges. Reflecting on the power paradigm – an experienced male judge and a job-seeking young woman lawyer with an accent – I was a bit intimidated before my first meeting with my mentor,
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the Hon. Kenneth Johnson. Preparing for our first meeting felt somewhat like preparing for a hearing, trying to anticipate the judge’s questions and hoping to deliver. Marion Circuit Court Magistrate Marcia J. Ferree (paired with Brandon M. Kimura): Geographic, cultural background and gender. Brandon was comparatively new to the Midwest and Indiana, while I have lived in Indiana my entire life. Brandon was born and raised in Honolulu, Hawai’i, and moved to Indiana as an adult a few years ago. Our practice areas varied. Brandon was gaining tremendous appellate experience as an intern with the Indiana Court of Appeals, and he was looking forward to obtaining an associate position at a civil law firm. My experience has mostly been at the trial level as a solo practitioner and now as judicial officer. Brandon Kimura (paired with Magistrate Ferree): Geographic and cultural background. I was born and raised in Honolulu, Hawai’i. I was on the west coast for my undergraduate degree and back in Honolulu for law school. As we began our mentoring relationship, I had been in Indiana for about one and a half years. Magistrate Ferree helped me adjust to the social and professional culture of the Midwest and Indianapolis. Our “practice” also varied because as a new graduate clerking for the Indiana Court of Appeals, I had a lot of ideas about different practice areas and working environments, but little experience. Magistrate Ferree was helpful in explaining to me her personal experiences in a variety of areas.
What were your concerns (if any) about your ability to fulfill the mentoring expectations and execute your role effectively when you realized you would be mentoring or be mentored by this particular person? Samuel R. “Chic” Born (paired with Aimee M. Gong): Concerns included big firm “guidance” v. small firm “on your own”; issue recognition; and mentoring across gender differences (e.g., if a situation arose where a female attorney needed advice on professional dress, etc.). Aimee Gong (paired with Chic Born): I had been informed that Chic was (and still is) a well-known and much respected attorney. I was concerned that I wouldn’t have anything to contribute to the mentoring relationship. Judge Johnson: I was greatly concerned how I could assist Lumi in the challenges of private practice, having been on the bench for so many years. I discovered that a “view from the bench” is neither a bad nor necessarily limiting approach. Matters concerning how to act in a courtroom, how to get matters into evidence, the benefits of civility to the court and opposing counsel were topics we were able to cover. My son is a deputy prosecutor who practiced in a mid-sized law firm; he proved to be a wonderful resource. I also counseled with a number of other private practitioners to gain a perspective I could share with Lumi. (continued on page 16)
Magistrate Marcia J. Ferree, Indianapolis, serves in the Marion Circuit Court, Paternity Division. She previously had a private practice and worked as a public defender representing indigent parents in CHINS and termination of parental rights cases. Magistrate Ferree serves on the Civil Benchbook Committee of the Judicial Conference of Indiana and was chair of the ISBA Young Lawyers Section.
Brandon M. Kimura is the special assistant and counsel to Chief Justice Mark E. Recktenwald of the Hawai’i Supreme Court. He was previously an appellate and trial attorney at Schultz & Pogue LLP in Indianapolis and a judicial clerk to Judge Margret G. Robb of the Indiana Court of Appeals. Brandon is a graduate of the ISBA Leadership Development Academy.
This article is published as part of the ISBA Diversity Committee’s efforts and in consultation with fellow committee members Prof. Carlton M. Waterhouse and Renee A. Skeete. RES GESTÆ • APRIL 2015
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MENTORING continued from page 15 In order to mentor/be mentored effectively across difference, what formal or informal preparations did you make, or what resources or other experiences did you consult or draw upon? Magistrate Ferree: I reviewed the Mentor Match materials provided by the ISBA, and I reviewed the Rules of Professional Conduct.
S.R. “Chic” Born, Indianapolis, is a civil mediator with The Mediation Group LLC and formerly a longtime partner with Ice Miller LLP. Chic served as president of the Indianapolis and Indiana State bar associations, and was a member of the ABA House of Delegates for 10 years. He enjoys golf, travel, fly fishing and amateur auto racing.
Judge Johnson: Mentoring Lumi showed me once again how different our system of laws was from Romania’s and other systems around the world. The volume of materials provided us was a terrific aid to our accomplishing all that we did. We used many of the recommended online resources, which, in turn, led to the discovery of other materials to which we referred. I thought it was important that Lumi quantify her growth and changes throughout our relationship, so I asked her to keep a journal of her journey throughout this process. She did so faithfully, emailing me copies after our meetings. I also thought it was important to see our mentees outside the mentor-mentee relationship. I would recommend taking them to dinner with their spouse or significant other along with your own. It provides a time of personal sharing where great discussions of family, backgrounds of growing up in a foreign country, aspirations and concerns are more easily brought to the fore.
Aimee M. Gong, Indianapolis, is an associate with Schultz & Pogue LLP and a graduate of Valparaiso University School of Law. She focuses her practice on medical malpractice defense. Aimee is chair of the State Bar’s Animal Law Section and a graduate of the ISBA Leadership Development Academy. She is also active in the American Bar Association.
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Lumi Nodit: Before my first interaction with Judge Johnson, I called some lawyer friends with litigation experience to inquire about him. I was overwhelmed with their positive responses. The materials provided by the ISBA truly kept us on track. As our mentorship relationship developed, I discovered how much I enjoyed our discussions and meetings. Our discussions spurred my interest in new areas
of law. I wanted to learn more about Judge Johnson’s asbestos work, so I signed up for asbestos updates on JD Supra. I was truly delighted when Judge Johnson extended an invitation to bring our spouses to a dinner meeting. I learned so much about mentorship, life, legal careers and differences during our dinner conversation.
What was the most challenging aspect of mentoring/being mentored across difference? How did you address it? Lumi Nodit: Before our mentorship started, I was concerned that Judge Johnson might not relate to my experience – trying to pursue a legal career in a foreign country in the tough legal market of 2010. But the most challenging aspect of being mentored by Judge Johnson was my unsound concern that he would lack the patience to get used to my accent. During our first meetings, I tried to speak louder and slower, and I tried to listen more. Judge Johnson: Probably the most challenging aspect with the language: Not that Lumi couldn’t speak the Queen’s English, she could. In just about any other profession, pronouncing words with a heavy accent would be characterized as cute or charismatic, but when speaking quirky legal terms before a legal tribunal, you have to be more spot-on to be sure you are understood. Lumi has also experienced some gender-related issues in legal situations that I think were exacerbated by her accent – by what others who had not heard her speak before characterized as a lack of knowledge. We addressed it headon. Lumi has an inner drive that causes her to want to be the best person and lawyer she can be, so she worked very hard at everything we did. The challenge would have
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been so much harder had she not had such a positive, “can do” attitude. We shared a “whatever it took” vision of immersing her into the American/Indiana legal system and community.
information from a meeting than simply what is said.
and insight. I also enjoy continuing to get to know Chic as a person.
What are the most important attributes of your relationship today?
Magistrate Ferree: Trust, mutual respect and comfortableness are important attributes of our relationship.
Magistrate Ferree: I did not find it challenging. Our common interest in the profession of law – and how we could positively influence the profession, financially support ourselves and our families, serve others and live well-rounded, healthy lives – impacted the mentoring process far more than any of our innate differences. The impact that our differences had on the mentoring process was unremarkable.
Chic Born: Friendship and trust. Aimee Gong: Having an experienced attorney, mentor and friend from whom I can ask for advice
(continued on page 18)
Brandon Kimura: I did not find it challenging. Our schedules were a little difficult to coordinate at times, but we worked it out and made the most of the time we had together.
Did you have any occasion to place yourself in your mentor/mentee’s shoes in order to understand a particular perspective? Magistrate Ferree: Yes, I placed myself “in his shoes” when thinking about how professional connections are often made over time and/or through mutually known third parties or family members. Many Indianapolis lawyers have deep roots in the area and in the legal profession. As someone fairly new to Indianapolis, Brandon had the challenge of making connections and building relationships that would serve him throughout his career. Brandon Kimura: I’m particularly conscientious, sometimes more than I should be. A side effect of this “condition,” though, is that I often place myself in others’ shoes in an attempt to understand their perspective. I find that doing so often helps me glean far more RES GESTÆ • APRIL 2015
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MENTORING continued from page 17 Lumi Nodit: The ability to call or email Judge Johnson and ask him for his advice is a gift.
What have you learned about mentoring across difference? Judge Johnson: One of the most important things for me was keeping an open mind – remem-
bering Lumi’s life experience. Seeing the world and the world of law through her eyes was very broadening for me. We spent a great deal of time talking about the whys, whats and hows: Why was this law enacted? How was this case decided? What purpose does this law have in how we enforce it or
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how we help clients deal with it? And another important lesson learned: remembering that mentoring is a two-way street. Lumi Nodit: I learned that everyone brings their own cultural lens and experience into the relationship, which can challenge and trigger growth. I learned once again not to prejudge. All mentors and mentees enter into relationship across differences with information and misinformation, often based on individual fears, stereotypes and prejudice. I feared that experienced male judges would lack the patience to get acquainted with my accent. I was proven wrong. Chic Born: To be imaginative. To be more open.
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Aimee Gong: I have learned that while there are differences in practice backgrounds, age, etc., there is still common ground that can be discovered. Chic has been a great mentor, and I value his advice. Brandon Kimura: Mentoring relationships with people of different backgrounds and experiences are powerful and memorable, and can be more eye opening than a mentoring relationship among those who are similar. Magistrate Ferree: We have more commonalities than differences.
What benefits have you gained from this mentoring relationship? Aimee Gong: I have had the opportunity to learn about different aspects of the legal practice and met some very respectable lawyers and judges. Chic Born: Insights into thinking – viewpoint of a lawyer 40 years my junior. Optimism for Aimee and her career.
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Judge Johnson: It broadens your horizons to see the law from another person’s viewpoint, especially one so different from our own. After a short while into our relationship, I realized I needed to be better prepared to cover the materials on our agenda. We had occasions to discuss the challenge of managing one’s time, balancing the challenges of family, practice and personal growth. At the end of our time, Lumi gave me an hourglass that I treasure. It sits in a prominent place on my desk, reminding me to pay heed to my own advice. Lumi Nodit: Judge Johnson taught me to be self-confident, to do good work and to never lose my passion for the practice of law. His encouragements helped me along the way, and his praise boosted my confidence. Most of all, he taught me the importance of staying true to yourself and your uniqueness. I praise Judge Johnson for his caring commitment to inspire me to successfully navigate my uniqueness (my Romanian accent) in the courtroom.
that mentoring across differences provide. Judge Johnson: Do it! Do it! Do it! Not only is mentoring a great honor, but it’s also a fantastic experience and a real contest as to whether you as mentor will learn as much or more than your mentee. It causes you to sharpen some of your own legal skills: how to interpret a statute or case holding; what are the measurable effects on our community of laws that impact our personal conduct; lawyers need to be leaders – what skills do I need to be a great one; what contributions can I make to my community (e.g., providing pro bono legal counsel or being involved in civic organizations); and what contributions can I make in furtherance of the rule of law and how others view lawyers, judges and others in the justice system. It doesn’t really require that much of a time commitment, and the benefits far outweigh the time and energy you invest. And that word “invest” is so appropriate in this situation because you will get more out of this experience
the more you invest in the life of your mentee. One cautionary note: It is vitally important that you, as mentor, are prepared when you meet with your mentee. Those answers that come off the top of your head and descriptions of how you’ve always done it, sell you and your mentee short. Plus, most of the judges and attorneys I know tend to be lifetime learners. You will be amazed at how much you learn engaging in this experience. The Army’s catch phrase, “Be all you can be,” should be your guide when you look to contribute to the experience and preparation of our young attorneys.
Would you do it again? Unanimous response: “Yes, without hesitation.” Brita A. Horvath, Indianapolis, manages all aspects of Faegre Baker Daniels’ diversity programs. In her role as manager of diversity & inclusion, she develops initiatives and strategies to further the firm’s ongoing commitment to diversity through its recruitment, retention, development and advancement efforts. She can be reached at brita.horvath @FaegreBD.com.
If a colleague is contemplating a similar relationship and asks for your advice, what advice would you share? Brandon Kimura: Seek a mentoring relationship with someone who is as different from you as possible. Then be quick to listen and slow to speak. Aimee Gong: The colleague should be open-minded and humble. As a young lawyer, there is a lot to learn about the legal community along with the requirements of the mentor program. Lumi Nodit: Mentoring is the art of making the most of a given situation. Both mentor and mentee should keep an open mind and welcome the gifts and opportunities
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6 hrs. of CLE, including 1 hour of ethics • All for just $300 And everything is included – breakfast at 8:30, lunch, afternoon dessert, beverages & parking! You may register at https://donate.indylas.org/cle or mail your payment to Indianapolis Legal Aid Society, Attn: Jackie Leverenz, 615 N. Alabama St., Suite 122, Indianapolis, IN 46204. If you would like to sponsor this event, contact Curtis Shirley at (317) 685-6512 for more information. Our Featured Speakers Judge William T. Lawrence, U.S. District Court for the Southern District of Indiana Indiana Supreme Court Justice Steven H. David • Ret. Indiana Supreme Court Justice Theodore Boehm Indiana Court of Appeals Judges Michael P. Barnes, Cale J. Bradford, Elaine B. Brown, Terry A. Crone and Edward W. Najam Jr. • Attorneys Jackie M. Bennett Jr., Lee C. Christie, William J. Dale Jr., Thomas L. Davis, Dean Emeritus William F. Harvey, Charles M. Kidd, Nathaniel Lee, Linda L. Pence and James H. Voyles • Gary Varvel, political cartoonist for The Indianapolis Star.
Thank You to Our Table Sponsors Barnes & Thornburg • Ice Miller • Krieg DeVault Jackie Leverenz • Plews Shadley Racher & Braun
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By Curtis T. Jones and John Z. Huang
Appellate civil case law update
INDIANA SUPREME COURT Requirement to file agency record before seeking judicial review of agency decision In a unanimous opinion captioned as Teaching Our Posterity Success, Inc. v. Indiana Department of Education and Indiana State Board of Education, 20 N.E.3d 149 (Ind. 2014), the Indiana Supreme Court granted transfer and resolved “a long-standing lack of consensus” on whether “a petitioner seeking judicial review of an agency action must file with the trial court the agency record as defined by the Administrative Orders & Procedures Act” (“AOPA”). The Court of Appeals’ published opinion in this matter was summarily affirmed in all other respects. AOPA contains certain provisions regarding the record of proceedings in the agency and the role of that record in facilitating judicial review. See Ind. Code §4-21.5-1-1 et seq. Specifically, Indiana Code section 4-21.5-5-13(a) provides that “the petitioner shall transmit to the court the original or a certified copy of the agency record,” and subsection 13(b) states that “[f]ailure to file the record within the time permitted by this subsection ... is cause for dismissal of the petition
for review by the court ... .” Both parties in this case relied upon the Court’s decision in Indiana Family & Social Services Administration v. Meyer, 927 N.E.2d 367 (Ind. 2010), which was an evenly divided decision as one justice did not participate. While two justices in Meyer opined that “imperfect compliance ... is not always fatal,” the other two justices disagreed, viewing the statutory language as a procedural “prerequisite to the pursuit of a petition for judicial review.” Subsequent appellate opinions highlighted the fact that there was no consensus on either the Indiana Supreme Court or the Court of Appeals on this issue. In Teaching Our Posterity Success, the Supreme Court chose to issue a bright-line approach, holding that “a petitioner for review cannot receive consideration of its petition where the statutorily defined agency record has not been filed.” The Court further stated that to the extent any prior case, such as Meyer, inferred any exception to this bright-line rule, “any such exception is extremely narrow.” The Court wasted no time in applying the bright-line rule that it established in Teaching Our Posterity Success. In the First American Title Insurance Company v. Robertson, 19 N.E.3d 757 (Ind. 2014) opinion, handed down on the same day as Teaching Our Posterity Success, First American challenged a Market Conduct Examination. After the Indiana Department of Insurance completed the administrative process concerning this challenge, First American filed a petition in the Marion Superior Court. The Insurance Commissioner moved to dismiss the petition, arguing that First American failed to timely submit the agency record as required by AOPA. The trial court denied the Commissioner’s motion.
The Court of Appeals affirmed the denial of dismissal, but the Supreme Court reversed, holding that because First American did not file the agency record with the trial court, its petition for judicial review could not be considered.
No demand made by the state of Indiana in its Right to Work Law
RECENT DECISIONS 11/14
he Indiana Supreme Court issued four opinions in November, including three civil matters that are summarized below. One of those opinions was the lone grant of transfer of a civil matter by the Supreme Court. For November, the Indiana Court of Appeals issued 14 published civil opinions, several of which are highlighted herein. The full text of all Indiana appellate court decisions, including those issued not-forpublication, are available via Casemaker at www.inbar.org or the Indiana Courts website, www.in.gov/judiciary/opinions.
Zoeller v. Sweeney, 19 N.E.3d 749 (Ind. 2014), involves a direct appeal to the Indiana Supreme Court after a trial court declared that two provisions of the Indiana Right to Work Law, Indiana Code sections 22-6-6-8 and 22-6-6-10, violated Article 1, Section 21 of the Indiana Constitution. Section 21 of the Indiana Bill of Rights provides in relevant part that “[n]o person’s particular services shall be demanded, without just compensation.” Local 150 of the International Union of Operating Engineers, AFL-CIO, argued in its complaint that Indiana’s Right to Work Law’s prohibition of employers requiring union membership or the payment of dues as a condition of Curtis T. Jones employment violated the Indiana Constitution Bose McKinney & Evans LLP Indianapolis, Ind. because current federal CJones@boselaw.com labor law mandates that an exclusive-agency union must represent the interests of all employees regardless of union membership. The Indiana Supreme Court first recognized that, on the face of the Indiana Right to Work Law, there is no state demand for particular John Z. Huang services. Thus, the fact Bose McKinney & Evans LLP Indianapolis, Ind. that the federal government may impose certain JHuang@boselaw.com (continued on page 22) RES GESTÆ • APRIL 2015
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RECENT DECISIONS 11/14 continued from page 21 obligations upon an exclusiveagency union does not automatically lead to the conclusion that the state has made any demand for services. The Court also recognized that a union can choose to not be an exclusive-agency union and become a members-only union. “The Union’s federal obligation to represent all employees in a bargaining unit is optional; it occurs only when the union elects to be the exclusive bargaining agent, for which it is justly compensated by the right to bargain exclusively with the employer.” All justices concurred in the Court’s decision to reverse the trial court’s entry of declaratory judgment, but Justice Rucker issued a separate opinion to emphasize that though the Right to Work Law was not unconstitutional on its face, “there may very well exist a set of facts and circumstances that if properly presented and proved could demonstrate that
a union has actually been deprived of compensation for particular services by application of the Right to Work Law.” (emphasis added)
INDIANA COURT OF APPEALS Scope of replacement cost coverage In Erie Insurance Exchange v. Sams, 20 N.E.3d 182 (Ind. Ct. App. 2014), the Court of Appeals decided what appears to be an issue of first impression in Indiana in defining the scope of “replacement cost coverage” when only part of a structure or dwelling is damaged. After reviewing the limiting language of the policy at issue in the case, the Court of Appeals affirmed the trial court’s determination that Erie was obligated to provide “[r]eplacement cost coverage” for “the entire roof, the entire outside siding, and the entire cathedral
ceiling as separate parts of the building.” The court recognized that its conclusion could place the insured in a position of windfall. However, since the trial court found that the “house was in uniform appearance before the loss,” replacement cost coverage required replacing more than just the damaged areas in order to avoid devaluing the home due to a mismatched roof or siding. Erie has sought transfer to the Indiana Supreme Court.
No reimbursement for the early payer In City of Indianapolis v. Cox, 20 N.E.3d 201 (Ind. Ct. App. 2014), the Court of Appeals reviewed a trial court’s entry of summary judgment against the City of Indianapolis on a class action claim for wrongdoing in changing its method for financing sanitary sewer improvement projects. Prior to 2005, the City financed neighborhood sewer improvements through a widely employed set of statutes known as the “Barrett Law,” which authorized municipalities to recover costs of sewer projects by dividing the costs among the properties that benefit and imposing assessments on the owners. The Coxes paid their assessed costs for the City’s sewer project in their neighborhood. In 2005, the City developed a new financing plan where property owners would pay a one-time connection fee as opposed to a proportional share of the costs of a project in their neighborhood. As the City prepared to launch its new plan, it chose to pass a resolution forgiving Barrett Law debt that was due and owing. Having already paid their debt, the Coxes demanded a refund with interest, which was denied. The Coxes did not dispute that the City had the authority to forgive assessment debts. The Court
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of Appeals noted that the Coxes were essentially claiming a loss of property, which was a tort claim. Because the Coxes failed to provide timely notice, as required by the Indiana Tort Claims Act, their claim was barred and no refund was owed.
Firewall screening for attorney at firm was not enough In XYZ, D.O. v. Sykes, 20 N.E.3d 582 (Ind. Ct. App. 2014), the Court of Appeals reviewed whether a law firm could continue to appear in a matter that was adverse to a former client of one of its attorneys. Kathleen Clark previously represented a doctor as his primary lawyer in six medical malpractice cases. After beginning work at a new law firm, Clark worked as an “intake attorney,” conducting initial interviews with potential clients to obtain case summaries and relevant information to determine whether the firm would pursue representation. One of those potential clients presented a claim against the doctor whom Clark formerly represented. Clark recommended representation of the claim and was then screened from participation in the case by her new firm’s internal security procedures. In applying Indiana Professional Conduct Rule 1.9, the court concluded that “if an individual lawyer is personally disqualified from a client representation, his or her new law firm is also disqualified,” except under very specific conditions. The court recognized that Rule 1.10 allows for law firms to use screening mechanisms in certain circumstances, but in applying that rule to the situation at hand, the court concluded that because Clark had been the doctor’s primary, and at times, only lawyer in the prior cases, she could not be screened to avoid imputation of the conflict to the law firm.
Negligent infliction of emotional distress In Clifton v. McCammack, 20 N.E.3d 589 (Ind. Ct. App. 2014), a father learned from the television news of a motorbike fatality along the path that his son was taking that day. Because the father “had a very bad feeling,” he left his home to search for the accident. Upon arrival the father recognized his son’s motorbike at the scene and his son’s shoes sticking out from under a blanket. The Court of Appeals applied the bystander rule as explained in Smith v. Toney, 862 N.E.2d 656 (Ind. 2007), noting that both the relationship and proximity requirements under the rule were issues of law. The question in this case was whether the father’s coming onto the scene of his son’s death satisfied the proximity requirement of the bystander rule. The Court of Appeals held that it did, as the
father left his home not knowing what had happened to his son, arrived at the scene approximately 40 minutes following the accident and 25 minutes after his son had passed away, and observed the gruesome aftermath of his son’s death.
Corporation should be allowed opportunity to secure counsel In Destination Yachts, Inc. v. Fine, 22 N.E.3d 611 (Ind. Ct. App. 2014), the Court of Appeals reversed the trial court’s default judgment entered after an individual appeared at a hearing in Small Claims Court without counsel to represent his company. The court held that the trial court’s denial of that individual’s motion to continue the trial was an abuse of discretion as a corporate litigant must be given a fair opportunity to correct (continued on page 24)
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RECENT DECISIONS 11/14 continued from page 23 its error and retain competent counsel before a dismissal is appropriate.
Civil conspiracy must have underlying tort claim by each co-conspirator In Crystal Valley Sales, Inc. v. Anderson, 22 N.E.3d 646 (Ind. Ct. App. 2014), the Court of Appeals affirmed the trial court’s decision to dismiss a civil conspiracy claim where no underlying tort was sufficiently alleged. The court held that “the complaint must allege some unlawful act underlying the defendants’ concerted action.” Continuing, the court stated, “[I]t is not enough that the alleged conspirators acted in concert and that the result amounted to a breach of contractual or fiduciary duty by one of them ... there must be some intentional underlying act
RES GESTÆ • APRIL 2015
of wrongdoing by each of the co-conspirators.” Finally, the court held that Indiana does not recognize a cause of action for “aiding and abetting a fiduciary in the breach of a fiduciary duty,” and it declined to create one. Curtis Jones is a partner at Bose McKinney & Evans LLP in its litigation, insurance and appellate groups. While at Valparaiso University School of Law, Curtis served as executive symposium editor for the Valparaiso University Law Review, earned an honors program scholarship, and served for a year in an externship with the Hon. Kenneth F. Ripple, U.S. Court of Appeals, Seventh Circuit. Upon graduating and prior to joining Bose McKinney & Evans, Curtis served as a judicial law clerk to Justice Theodore R. Boehm on the Indiana Supreme Court. His email is CJones @boselaw.com.
John Z. Huang is an associate at Bose McKinney & Evans LLP in its litigation, labor & employment, education and insurance groups. While at Notre Dame Law School, John served as symposium editor for the Notre Dame Journal of Law, Ethics & Public Policy, was a White Scholar, and served as president of the Public Interest Law Forum. Upon graduating and prior to joining Bose McKinney & Evans, John served as a judicial law clerk to Justice Frank Sullivan Jr. on the Indiana Supreme Court, assistant litigation counsel with the City of Indianapolis Office of Corporation Counsel, and staff attorney with the Indiana Department of Education. His email is JHuang @boselaw.com.
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Opinion No. 1 of 2015
Issue Does an Indiana attorney violate Rule 8.4(g) of the Rules of Professional Conduct by participating as a leader of a nonprofit organization that has gender, religious or racial requirements for membership?
Brief answer An attorney’s active participation in an organization that has gender, religious or racial requirements for membership is not an inherent violation of Rule 8.4(g) of the Indiana Rules of Professional Conduct. But, there may be particular circumstances where an attorney’s participation in such organizations may be viewed as misconduct when he or she acts in a “professional capacity.” As the Indiana Supreme Court has yet to define the exact scope and meaning of “professional capacity,” lawyers should be attentive to the mission and nature of such an organization and the role(s) the lawyer may be asked to fulfill for the organization.
Participation in discriminatory organizations – the scope of Rule 8.4(g) issue presented by this hypothetical calls for an interpretation of Rule 8.4(g) of the Indiana Rules of Professional Conduct, which broadly proscribes various forms of speech and conduct perceived as being antithetical to a lawyer’s role in our legal system. Rule 8.4(g) states: It is professional misconduct for a lawyer to engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.
Rule 8.4(g) is part of a rule that prohibits other forms of professional misconduct, including, among other behaviors, criminal activity reflecting on a lawyer’s honesty and conduct prejudicial to the administration of justice. (See Rule 8.4 (b), (d)). Indiana is one of 10 states1 that includes a separate anti-discrimination clause in their rules governing misconduct.
his formal opinion is disseminated in accordance with the charge of the ISBA Legal Ethics Committee and is advisory in nature. It is intended to guide the membership of the Indiana State Bar and does not have the force of law.
There is similar language in Comment  to ABA Model Rule 8.4 suggesting that discriminatory speech is “prejudicial to the administration of justice” in violation of Rule 8.4(d), but the ABA comment limits application to actions that occur while “in the course of representing a client.” One commentator (continued on page 27)
Hypothetical facts Attorney A is a member of a nonprofit organization that excludes women from membership and admits only white men who practice a certain religion. The attorney is asked to assume a position on the governing board of the organization and to serve as one of its officers.
Analysis Setting aside constitutional issues involving freedom of association and freedom of speech, the RES GESTÆ • APRIL 2015
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ATTORNEY ETHICS continued from page 25 has correctly noted that the distinction between acting “in a professional capacity” and “in the course of representing a client” is not clear.2 Nevertheless, it seems reasonably obvious that “acting in a professional capacity,” as that term is used in Rule 8.4(g) is at least as broad and perhaps broader than “while representing a client.” In Indiana the phrase “in representing a client” goes far beyond representation in the context of litigation or other disputes. The Preamble to the Rules of Professional Conduct indicates that the process of representing a client may include work as an advisor, an advocate, a negotiator, an intermediary and an evaluator.3 So, it seems fair to conclude that the scope of Rule 8.4(g) is intended to include at least these functions if they take place in the context of an attorney-client relationship. Similarly, a letter written on an attorney’s professional letterhead that identifies the author as an attorney and contains discriminatory comments will likely be sufficient to meet the “professional capacity” test. See Notopoulos v. Statewide Grievance Committee, 857 A.2d 857 (Conn. App. 2004). But the hypothetical facts presented above do not assume any of those situations. If Rule 8.4(g) were limited to behavior occurring “in the course of representing a client,” as the ABA comment is limited, the Committee’s analysis would end with the observation that in the absence of an attorney-client relationship with the organization no violation of Rule 8.4(g) could occur. However, Indiana’s version of 8.4(g) is not limited in this way, so it is necessary to consider whether Rule 8.4(g) has any application to situations outside of those that involve representing a client.
There are six Indiana cases that have applied Rule 8.4(g), but the scope of “in a professional capacity” is still not clear. The first case was in 2005 and dealt with racial bias. In the Matter of Thomsen, 837 N.E.2d 1011 (Ind. 2005). The second was in 2009 and considered discrimination on the basis of national origin and socioeconomic status. In the Matter of Campiti, 905 N.E.2d 408 (Ind. 2009). In both of these cases, the Indiana Supreme Court did not need to discuss the meaning of “professional capacity” since the lawyer’s speech occurred while representing clients in open court. Two cases applied Rule 8.4(g) in 2010: In the Matter of McCarthy, 938 N.E.2d 698 (Ind. 2010) and In the Matter of Kelley, 925 N.E.2d 1279 (Ind. 2010). The McCarthy case involved a lawyer who, in the course of representing a client, sent an email that displayed discrimina-
tion on the basis of race. In the Kelley case, Respondent began receiving pre-recorded messages from a company seeking to speak with her husband. Respondent and her husband agreed that she would call the company at the toll-free number to remedy the situation. Respondent then spoke to a male representative of the company, identifying herself as a lawyer representing her husband. Noting what she thought was a femininesounding voice, Respondent asked the company’s representative if he was gay. The company representative commented on the unprofessional nature of this inquiry, and Respondent admitted the violation of Indiana Rule 8.4(g). The Indiana Supreme Court once again did not have to define the scope of “professional capacity” in either of these cases because both attorneys were (continued on page 28)
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ATTORNEY ETHICS continued from page 27 acting while in the course of representing a client. Two Indiana cases addressed Rule 8.4(g) in 2013: In the Matter of Dempsey, 986 N.E.2d 816 (Ind. 2013) and In the Matter of Usher, 987 N.E.2d 1080 (Ind. 2013). In Dempsey, the Indiana Supreme Court held that Respondent violated Rule 8.4(g) by distributing flyers in downtown Indianapolis, based on his personal bankruptcy case. The flyers “made free-ranging disparaging remarks about Jews generally, from the fall of Jericho, through 1925 Berlin, to their alleged involvement in the 9/11 attacks,” which the Court classified as “scurrilous and repugnant attacks.” Id. 817. The Court said that these violations were not the type of communications that fall within an attorney’s broad constitutional right to freedom of speech. Id. In Usher, a male partner in a law firm sent out a fabricated email about a female intern with whom he was pursuing a romantic relationship. The male attorney was charged with violating Rule 8.4(g), but that charge was rejected, not because the attorney was acting in a non-professional capacity, but because the Court found that his email was motivated by personal anger at the female intern in particular rather than by bias against women in general. Even though 8.4(g) was deemed inapplicable to the respondent in Usher the holding is instructive for our hypothetical because it confirms that Rule 8.4, in general, extends well beyond behavior involved in representing a client. Responding to the attorney’s contention that the rules did not apply because “his actions ... were not done in a professional capacity,” the Indiana Supreme Court stated: “This Court has imposed discipline on lawyers for speech found to violate their professional 28
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duties, as well as for unethical activities outside the professional arena. We conclude that Respondent’s actions regarding the email are not beyond this Court’s disciplinary authority.” The Court made a similar point earlier in In re Quinn, 696 N.E.2d 863 (Ind. 1998), which indicated that indifference to legal standards of conduct reflected adversely on one’s fitness as an attorney. Examples of disciplinary actions against lawyers for conduct unrelated to the representation of clients are easy to find, both within and outside of Indiana. See, e.g., In re Conn, 715 N.E.2d 379 (Ind. 1999) (child pornography conviction); In re Peterson, 718 N.W. 2d 849 (Minn. 2006) (tax evasion); Fla. Bar. v. Bartholf, 775 So. 2d 957 (Fla. 2000) (lawyer assaulted victim with a golf cart). While the violation in Dempsey bore some relationship to a legal proceeding involving the lawyer being disciplined, no such claim can be made based on the facts of Usher. In Usher no client was involved, so it is clear that the Court intends that Rule 8.4 in general has application beyond the boundaries of an attorney-client relationship. The question is how far those boundaries go in the context of Rule 8.4(g). Some further information about the scope of Rule 8.4(g) can be found in Comment  to Rule 8.4, which states: Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, which have no specific connection to fitness for the practice of law. Although a lawyer is personally
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answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust or serious interference with the administration of justice are in that category.
While the Indiana Supreme Court has not clearly defined the scope of “in a professional capacity” as used in Rule 8.4(g), the New Jersey Supreme Court’s interpretation of its rule offers some guidance.4 The New Jersey Disciplinary Rules of Professional Conduct Rule 8.4(g) states: It is professional misconduct for a lawyer to: engage, in a professional capacity, in conduct involving discrimination (except employment discrimination unless resulting in a final agency or judicial determination) because of race, color, religion, age, sex, sexual orientation, national origin, language, marital status, socioeconomic status, or handicap where the conduct is intended or likely to cause harm.
In its comments to the rule, the New Jersey Supreme Court noted that the addition of paragraph (g) was intended “to make discriminatory conduct unethical when engaged in by lawyers in their professional capacity.”5 The comment further notes that the rule covers activities in the courthouse, treatment of court staff, conduct related to litigation, treatment of other attorneys and related staff, bar association activities, and activities sponsored by a lawyer’s firm.6 The comments further state that “purely private activities are not intended to be covered by this rule amendment, although they may possibly constitute a violation of some other ethical rule.”7 Due to numerous suggestions received by the New Jersey Supreme Court following the initial publication of paragraph (g), the Court revised the proposed amendment by making explicit its
intent to limit the rule to conduct by attorneys in a professional capacity, to exclude employment discrimination unless adjudicated, and to restrict the scope of the Rule to conduct intended or likely to cause harm. The Court noted that the intent was to cover only discrimination where the attorney intentionally causes harm or inflicts emotional distress. This clarifica-
tion is more than simply interesting, as it seems to align well with the decision in Usher to the extent that for 8.4(g) purposes, the Court looked to the existence or absence of discriminatory intent. Likewise, Usher involved “treatment of other attorneys and their staff” – conduct the New Jersey comment expressly (continued on page 30)
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ATTORNEY ETHICS continued from page 29 brings within the ambit of the term “in a professional capacity.” For the sake of comparison, Indiana’s Model Code of Judicial Conduct, Rule 3.6 states that “[a] judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation.” Further, a judge may not be a member or benefit from an organization if the judge knows or should know that the organization practices “invidious discrimination.” Comment  to Rule 3.6 defines invidious discrimination as arbitrarily excluding persons from membership who would otherwise be eligible for admission on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. This will depend not only on how the organization selects members, but “whether
the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.”8 Comment  notes that a judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of Rule 3.6. Since judges must be perceived as impartial, it follows that their personal activities may be more controlled in order to avoid the appearance of impropriety. Lawyers, on the other hand, are not under that same obligation. Whereas the language of the judicial rule explicitly applies to membership in discriminatory organizations, there is no such language in Rule 8.4(g), which perhaps suggests
that no restriction was intended. But the distinction between the Rules of Professional Conduct and the Model Code of Judicial Conduct is not conclusive on the question of whether mere membership in a discriminatory organization or performance of a leadership role in such an organization can constitute a violation of Rule 8.4(g). Unfortunately, there is simply not enough direction from the Indiana Supreme Court to allow any firm conclusions as to precisely how far Rule 8.4(g) may reach. Certainly it touches all activity by an attorney arising out of the broad representative functions describe in the Preamble to the Rules so long as a client is involved while simultaneously allowing an exemption for legitimate advocacy. But when there is no client involved, the Rule still has some application to behavior where the lawyer’s status as a lawyer is a relevant part of the picture and the lawyer can be deemed to have intentionally engaged in types of discriminatory behavior proscribed by the Rule, as Dempsey and Usher show. As acknowledged above, there are constitutional issues that cannot be avoided in addressing the question presented by this hypothetical. As the Committee has already noted, the character of the organization seeking Attorney A’s leadership services is critical in determining the extent to which any constitutional freedom of association may have application to A’s situation. In Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), the Court held that Minnesota human rights law could prevent the exclusion of female members by an organization in order to support important public policies aimed at eliminating invidious discrimination in access to publicly available goods, services and other advantages. Id. 628.
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The Jaycees’ “freedom of association” argument was rejected, in part due to the large and public nature of the organization, in contrast to the sort of smaller, more intimate and selective organization seen as more deserving of constitutional protection. Id. 620 -621. Whether Attorney A could claim constitutional protection from Rule 8.4(g) based on freedom of association would seemingly depend, at least in part, on the nature of the organization he is asked to help lead. The Court in the Jaycees case also made it clear that a more stringent test would be applied if the goal of the organization involved other recognized freedoms such as freedom to worship, to speak or to petition the government for redress of grievances. Id. 622. These pronouncements underscore the Committee’s point that Attorney A
needs to be sensitive to the nature of the organization in evaluating the scope and effect of Rule 8.4(g). In contrast to the similar New Jersey rule, cited above, the Indiana version of Rule 8.4(g) specifically mentions discriminatory “words or conduct.” The decision in Kelley, supra, seems to make the point that discriminatory speech alone is enough to create a violation of 8.4(g) if it occurs while the lawyer is representing a client, unless it amounts to legitimate advocacy. Further, Dempsey, supra, seems to indicate that statements made by a lawyer about a proceeding that has concluded will fall within the scope of Rule 8.4(g) if the lawyer was involved, even on a pro se basis. The Committee notes that “a lawyer’s right to free speech is extremely circumscribed in the courtroom” Gentile v. State Bar
of Nevada, 501 U.S. 1030, 1031 (1991), but outside the courtroom the standards are different. Berry v. Schmitt, 688 F. 3d 290, 304-305 (6th Cir. 2012), see also Standing Committee on Discipline of the United States District Court for the Central District of California v. Yagman, 55 F. 3d 1430 (9th Cir. 1995). Rule 8.4(g) makes no obvious distinction between discriminatory statements inside or outside a courtroom, and this Committee will draw no conclusions concerning the constitutionality of Rule 8.4(g) since doing so is not required by the hypothetical presented to the Committee. But it is clear that Rule 8.4 in general and Rule 8.4(g) in particular as interpreted by the Indiana Supreme Court both have application well beyond any (continued on page 32)
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ATTORNEY ETHICS continued from page 31 remarks made by a lawyer in the middle of a court proceeding.
Conclusion An attorney who merely participates in his personal capacity in an organization that has gender, religious or racial requirements for membership and does not participate in his or her capacity as a lawyer would not be in violation of Rule 8.4(g) of the Indiana Rules of Professional Conduct simply by virtue of the connection to such an association. The Committee also does not believe that a lawyer violates Rule 8.4(g) merely by providing legal representation to an organization with discriminatory requirements, policies or beliefs, both because such representation can often be
accomplished without the lawyer personally making discriminatory comments or engaging in discriminatory conduct and because the “legitimate advocacy” exception is likely to cover situations where the lawyer cannot avoid such statements or conduct. Gratuitous discriminatory statements or conduct in the course of a representation stand on a different footing. However, participation is different from representation in this context. So, a lawyer should be mindful of the particular practices of such an organization if the lawyer intends to personally participate in activities that advance any of its discriminatory requirements, policies or beliefs. The lawyer should proceed with particular caution if the lawyer’s status as
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a lawyer is connected to his or her participation in the organization’s activities. Accepting a leadership role in such an organization or using one’s status as a lawyer in support of the organization creates more ethical risk than mere membership. But in either case, the nature of the organization and the lawyer’s role in the organization are critical to the outcome of any ethical analysis. In light of the delicate balance between constitutional rights and the necessity of fairness in the administration of justice, it is the Committee’s hope that the Indiana Supreme Court may offer further clarification on the scope of “professional capacity” by way of an official Comment to Rule 8.4(g). 1. Other states include Colorado, Florida, Illinois, Missouri, Nebraska, New Jersey, North Dakota, Ohio and Washington. 2. Lundberg, Donald R., “Of Telephonic Homophobia and Pigeon-Hunting Misogyny: Some Thoughts on Lawyer Speech,” 53 Res Gestae 164 (June, 2010). 3. Indiana Rules of Professional Conduct, Preamble, para. . 4. Out of the 10 states with anti-discrimination clauses in their rules governing misconduct, just four use the phrase “in a professional capacity” (Indiana, Nebraska, New Jersey and Ohio). Only the comments to New Jersey’s rule address the interpretation of professional capacity. 5. Official Comment by New Jersey Supreme Court (May 3, 1994). Available at http:// www.law.cornell.edu/ethics/nj/code/ CRule_8.4.htm. 6. Id. 7. Id. 8. Indiana Model Code of Judicial Conduct, Rule 3.6, Comment .
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By D. Lucetta Pope and Larry E. LaTarte
Appellate civil case law update
SUPREME COURT Lien foreclosure prohibition clause and delinquent sewer bills In parallel cases decided the same day, the Indiana Supreme Court held that the lien foreclosure prohibition clause of the statute governing collection of regional sewer district liens did not apply where the properties listed for tax sale were encumbered only by the sewer bill liens at issue. In re Carroll County 2013 Tax Sale, 21 N.E.3d 832 (Dec. 4) (Dickson, J.); In re Carroll County 2012 Tax Sale, 21 N.E.3d 91 (Dec. 4) (Dickson, J.). The same trial judge granted requests by two landowners to remove their properties from the tax sale list, citing the lien foreclosure prohibition of Indiana Code section 13-26-14-4. In both cases, the landowners owed fees and penalties to a non-municipal regional sewer district, which had perfected liens against the properties and certified them to the county auditor for collection. The district appealed. Reviewing the judgment, the Indiana Supreme Court identified
the central issue as how to interpret the lien foreclosure prohibition clause of the statute governing collection of regional sewer district liens. Whereas preceding sections of the statute authorize (among other things) “sewer districts to use lien foreclosure to collect rates, charges, and penalties,” the lien prohibition clause (Indiana Code section 13-26-14-4) provides: “A lien under this chapter that is the only lien on a property may not be foreclosed.” The question, then, was whether tax sales qualify as “foreclosures” within the meaning of the statute. Examining the greater statutory context, the Court first noted that Title 13 applies to regional sewer districts rather than municipal sewer works. The Court further observed that Section 4 of Title 13 provides liens “shall be collected and enforced in substantially the same manner” as provided in the sections governing municipal sewer works. Concluding the referenced procedures (found in Title 36, Article 9, Chapter 23) determine how both municipalities and regional sewer districts may collect unpaid sewer bills, the Court identified a critical distinction: “[W]hile [these sections] authorize the county treasurer to collect assessed sewer fees in the manner of collecting delinquent property taxes, which includes resort to a tax sale,” it noted they “do not define sewer fee collection liens as ‘tax liens’ or refer to a ‘tax sale’ as a ‘lien foreclosure,’ nor does Chapter 23 elsewhere ‘establish’ a ‘tax lien’ subject to ‘foreclosure.’” Based on this difference and the enacted language, the Court held that the statute precludes the foreclosure of regional sewer district fee liens so long as they are the only liens on a property, but does not preclude collection of those fees and charges by tax sale. Put simply, “a tax sale does
not fall within the regional sewer district lien foreclosure prohibition.” Because sewer fee liens were the only liens on the properties in question, the Court reversed the judgments of the trial court.
Rights of de facto custodians in adoption proceedings
RECENT DECISIONS 12/14
n December, the Indiana Supreme Court issued four opinions in civil matters,1 summarized below. The Court granted transfer in two civil cases. The Indiana Court of Appeals issued a total of 36 published opinions in civil matters, some of which are summarized below. Full text of all Indiana appellate court decisions rendered during December, including those issued not-for-publication, are available through Casemaker at www.inbar.org or on the Indiana Courts website, www. in.gov/judiciary/opinions. The Indiana Supreme Court’s transfer disposition lists can be found at http://www.in.gov/judiciary/ cofc/2338.htm.
In a unanimous opinion, the Indiana Supreme Court held that for purposes of the Indiana statute requiring written consent to an adoption petition by each person with lawful custody of the child, the term “lawful custody” includes maternal grandparents who each met the statutory definition of a “de facto custodian.” In re Adoption of B.C.H., 22 N.E.3d 580 (Dec. 23) (David, J.). Mother’s child remained in the primary care and custody of maternal grandparents until she was almost 4 years old, visited by Mother once or twice weekly. During this period, Stepfather filed a petition to adopt the child with Mother’s consent but without giving Grandparents notice or any chance to withhold their consent. The trial D. Lucetta Pope court granted the adopFaegre Baker Daniels LLP tion, and Mother South Bend, Ind. removed the child, proLucetta.Pope@FaegreBD.com hibiting further contact with Grandparents. Arguing that “lawful custody” of the child entitled them to notice and consent rights, Grandparents filed a motion to reopen the adoption. The trial court denied relief, holding that Grandparents had no “lawful custody” within the meaning Larry E. LaTarte of the adoption statute. Faegre Baker Daniels LLP Grandparents appealed, (continued on page 34)
South Bend, Ind. Larry.LaTarte@FaegreBD.com
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RECENT DECISIONS 12/14 continued from page 33 and the Court of Appeals affirmed. On transfer, the Indiana Supreme Court interpreted the term “lawful custody” under Indiana Code section 31-19-91(a)(3) to include those who met the statutory definition of a de facto custodian. The Court began its analysis with the text of the statute, which provides that “a petition to adopt a [minor] child ... may be granted only if written consent to adoption has been executed by ... (3) [e]ach person, agency, or local office having lawful custody of the child whose adoption is being sought.” The word “lawful,” the Court explained, ordinarily means “not contrary to law” rather than “as established by a court.” It reasoned that “sources of potential lawful custody span the spectrum from court-ordered custody of a child to de facto custodianship to informal caretaking arrangements,” among others. The Court also observed that this ordinary reading of the text likely reflects both the legislature’s judgment that courts assessing a child’s best interests should hear from “the party with care, custody, and control” of that child, and the legislature’s response to the increasingly diverse arrangements of Indiana families. Turning to the record, the Court emphasized that Grandparents had served as primary caregivers for the first three years and nine months of the child’s life, forming strong bonds of attachment. And while Mother retained legal custody, the Court found that what became a permanent caretaking arrangement transformed Grandparents’ physical custody into lawful custody. Grandparents, in the Court’s view, were exactly the kind of caregivers envisioned by the General Assembly when it chose the term “lawful custody” over “legal custody.” Consequently, it vacated 34
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the adoption order, holding that while the trial court would retain authority to determine the best interests of the child, Grandparents must be given “the opportunity to give or withhold their consent to Stepfather’s adoption of their granddaughter.”
Judicial modification of agreed child support orders Resolving an issue of conflicting precedent in prior Court of Appeals cases concerning the circumstances under which a trial court may modify an agreed child support order, the Indiana Supreme Court held that an agreed child support order can only be modified upon a showing of either a substantial and continuing change in circumstances or, after 12 months, a 20-percent deviation from the Indiana Child Support Guidelines. Rolley v. Rolley, 22 N.E.3d 558 (Dec. 14) (per curiam). Mark and Melissa Rolley divorced in 2011. Their child support agreement deviated substantially from what would be ordered by applying the Indiana Child Support Guidelines. Later, Melissa petitioned to modify Mark’s child support obligation, arguing that there was more than a 20-percent difference between the amount of support Mark was paying and the amount that would be ordered under the Guidelines. The trial court granted Melissa’s petition and modified Mark’s support requirements. On appeal, Mark relied on two Indiana Court of Appeals decisions, Hay v. Hay, 730 N.E.2d 787 (Ind. Ct. App. 2000), and Reinhart v. Reinhart, 938 N.E.2d 788 (Ind. Ct. App. 2010), to argue that agreed child support terms cannot be modified absent a showing of a substantial and continuing change in circumstances that renders those terms unreasonable. The
trial court’s decision, however, was supported by contrary reasoning in Marriage of Kraft, 868 N.E.2d 1181 (Ind. Ct. App. 2007), in which the court allowed modification upon a showing of either a substantial and continuing change in circumstances or a 20-percent deviation after 12 months. The Supreme Court agreed with Marriage of Kraft, adopting its reasoning with respect to the modification and summarily affirming that court’s calculation of Mark’s support obligation.
Jurisdiction, venue, and local rules of court Clarifying the difference between jurisdiction and venue in probate matters in counties without a separate probate court, the Indiana Supreme Court held that Lake County’s Caseload Allocation Plan was a mandatory local rule prescribing venue within the Lake Superior Court’s statutory divisions. Adoption of J.T.D. & J.S. v. N.E., 21 N.E.3d 824 (Dec. 4) (Rush, C.J.). The Lake Superior Court is comprised of four divisions: Civil (including probate), Criminal, County and Juvenile. Lake County has no separate probate court; as a result, Indiana Code section 31-191-2(b), conferring exclusive jurisdiction in the probate courts, does not apply. N.E. filed two adoption petitions in the Civil division, violating the local Case Allocation Plan’s requirement that adoptions of minors be exclusively filed in the Juvenile division. On that basis, DCS moved to transfer the cases to the Juvenile division. N.E. opposed the transfer, arguing that the Case Allocation Plan conflicted with the statute creating the Superior Court’s divisions because, according to N.E., those divisions are jurisdictional and so render the Case Allocation Plan ineffective. The trial court agreed with N.E.
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and declined to transfer the case. The Court of Appeals affirmed. The Indiana Supreme Court made clear that according to the plain statutory language, the Lake Superior Court is a single court of broad, original, concurrent jurisdiction. The statute instructs that the work of that one court be divided among the divisions “by the rules of the court,” i.e., the local rules. This separation into divisions, concluded the Court, is merely descriptive of venue, not prescriptive of rigid jurisdictional boundaries. If it were otherwise, the statutory language creating the Superior Court and its divisions could not be read in harmony: the command to divide work via local rule would inherently conflict with the statute’s jurisdictional alignment. Thus, because the Caseload Allocation Plan did not contravene a statute, the trial court lacked the
discretion to disregard it. N.E. was obliged to file her adoption petitions in the Juvenile division, and when she failed to do so, the Civil division was obligated to yield venue.
COURT OF APPEALS Consensual relationship and school principal contract Evidence that a school principal engaged in a consensual relationship with a teacher did not entitle the school district to summary judgment on the principal’s breach of contract and due process claims. Hewitt v. Westfield Washington School Corp., 2014 WL 7403577 (Dec. 30) (Bailey, J.). After learning that a school principal engaged in a consensual intimate relationship with a subordinate teacher, the school board canceled his two-year employment
contract. The principal sued, alleging that the school breached his contract by (among other things) failing to conduct the required hearing and violated his due process rights under 42 U.S.C. §1983 for essentially the same reasons. On cross-motions for summary judgment, the trial court ruled in favor of the school on all issues. The principal appealed. The Court of Appeals began its analysis by noting Indiana’s relatively high standard for summary judgment, which creates the “onerous burden” to “affirmatively negate an opponent’s claim.” Turning to the breach of contract claim, the court rejected the school’s position that the principal’s contract – written on a standard teacher’s contract form – imposed less demanding standards (continued on page 36)
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RECENT DECISIONS 12/14 continued from page 35 for cancellation. Rather, the contract incorporated by reference the statutory protections afforded teachers, including rights to a “just cause” hearing. The court also rejected the school’s argument that it could avoid statutory procedures for canceling an employment contract because the principal admitted
engaging in the challenged conduct. Acknowledging that “just cause” for cancellation included any good faith ground unless arbitrary, irrational, unreasonable or irrelevant to maintaining an efficient school system, the court reasoned that many relationships could create a similar appearance of impropriety or con-
flict of interest, citing examples like an administrator’s supervision of her children’s teachers; and it reasoned further that allowing the school to find just cause without conducting the required hearing would render that contract term meaningless and thwart the legislature’s purpose. Finding insufficient evidence that the conference received by the principal satisfied the procedural requirements of Indiana Code section 20-28-7.5-2, the court reversed the summary judgment granted to the school.
Tall grass and freedom of conscience and expression Requiring a landowner to obey a municipal ordinance restricting the height of yard grass did not violate his freedom of conscience under the Indiana Constitution, his freedom of expression under the state or federal constitution, or any Indiana statute, nor was the ordinance void for vagueness. Gul v. City of Bloomington, 22 N.E.3d 853 (Dec. 22) (Baker, J.).
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The owner of residential property in Bloomington was fined for violating an ordinance restricting the height of yard grass to eight inches. The landowner appealed this administrative citation to the Bloomington Board of Public Works, asserting that his decision to maintain a natural yard was a statement of sincerely held environmental beliefs. The board affirmed, and the landowner appealed to the trial court, which granted summary judgment in favor of the board. On appeal, the court rejected the landowner’s claim that Bloomington’s grass ordinance violated Article 1, Section 3 of the state constitution, providing that no “law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with (continued on page 38)
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RECENT DECISIONS 12/14 continued from page 36 the rights of conscience.” To find a violation, the court reasoned, “would be tantamount to declaring nearly every statute and ordinance on the books in Indiana unconstitutional” since each conflicts with the sincere beliefs of someone. The court also distinguished holding an opinion – which Section 3 protects – from practicing that opinion, which Section 3 does not. Addressing the landowner’s claim that the ordinance violated the constitutional right to free expression, the court rejected both his federal and state law claims. The landowner’s federal claim failed, explained the court, because his yard was insufficiently “expressive” to communicate any specific message to an average person. Applying Indiana’s constitution, the court found that the expression commented on other landowners rather than the government, rendering it “apolitical”; citing evidence of harm to property values, the court concluded that Bloomington could rationally find an abuse of the right to expression, satisfying its constitutional burden. The court also rejected the landowner’s statutory claims, finding no statutory limit on municipal authority to regulate grass height. And affirming summary judgment against the landowner, it held the ordinary meaning of the word “grass” sufficiently precise to avoid unconstitutional vagueness.
Mandamus proceedings and funding for city court The City Court of East Chicago was properly awarded additional funds for court operations in mandamus proceedings against the city’s common council. Orange v. Morris, 2014 WL 7357218 (Dec. 18) (Bradford, J.). After the city’s common council reduced the budget for the city court, the presiding judge filed in 38
RES GESTÆ • APRIL 2015
circuit court a verified complaint in mandamus, seeking funding of $82,000 and expenses. The appointed special judge denied the council’s motion to dismiss the complaint as contrary to the procedures set out in Trial Rule 60.5. After holding a trial, the court ordered the council to appropriate an additional $65,000 to fund the city court and required each side to pay its expenses. The council appealed, and the presiding judge crossappealed. Reviewing the “mandate decree” of the special judge under a deferential standard, the Court of Appeals found evidence sufficient to show the requested funds were reasonably necessary to operate the court. This evidence suggested that the court’s budget was comparatively lower than other court budgets for Lake County municipalities, that the court spent less for salaries in 2012 than in 2002, that the court faced challenges due to the low average income of the city’s population and many Spanish speakers, and that every court employee was needed to ensure its proper operation. While the council also presented evidence, including showings of declining tax revenues and larger cuts to other areas, the court observed that it had identified no area where the city court could reasonably reduce costs. The court also rejected the council’s suggestion that money be diverted from probation funds, finding that diversion both unlawful and inimical to judicial independence and its requirement “that sentencing decisions be entirely free of court and probation fiscal considerations.” The court also held that the presiding judge was not required to follow the mandate procedures set out in Trial Rule 60.5 under the Indiana Supreme Court’s still-binding decision in Gary City Court v. City of Gary, 489 N.E.2d 511 (Ind. 1986).
Addressing the cross-appeal, the court held that the nature of proceedings on behalf of the city court supported a mandatory award of appellate attorney fees and expenses. It affirmed the trial court’s judgment and remanded the case for calculation and award of fees and expenses.
Whistleblower claim and ‘at will’ employment Allegations that a former employer breached whistleblower provisions in an employee handbook failed to state a claim for breach of contract; but allegations that a former company officer had acted vindictively sufficiently alleged malice to withstand dismissal of the complaint’s claim for tortious interference with “at will” employment. Duty v. Boys and Girls Club of Porter County, 2014 WL 7201770 (Dec. 18) (Najam, J.). A Boys and Girls Club employee was terminated following her complaints about the accounting practices of the club’s thenpresident and chief financial officer. The employee filed suit, alleging claims for breach of contract and tortious interference with a contractual relationship. After successive motions to dismiss and re-pleadings, the trial court dismissed the complaint with prejudice. The employee appealed. Affirming the dismissal of the employee’s breach of contract claim, the court found the complaint insufficient to allege a contractual relationship rather than mere employment “at will.” It rejected the employee’s claim that the club handbook – and more specifically, its provisions barring retaliation against whistleblowers – created a unilateral contract, citing the Indiana Supreme Court’s analysis of at will employment in Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717-18 (Ind. 1997).
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Even if the club’s employee handbook could otherwise constitute a unilateral contract, the court reasoned, its express disclaimer of any such intent prevented a contract from forming. The court reversed dismissal, however, of the employee’s tortious interference claim, noting that our supreme court has held tortious interference with an “at will” employment relationship actionable. The court also found that by alleging the former club president had acted vindictively and “in retaliation for Plaintiff’s invocation of the Whistleblower policy of [BGC],” the complaint adequately pleaded malicious conduct.
Tax deed order, appealability An order granting the issuance of a tax deed to the highest bidder at a tax sale must be appealed by filing a motion or action for relief from the trial court’s judgment with the issuing court; the order is not directly reviewable by the Court of Appeals. Holland v. Patelas, 22 N.E.3d 840 (Dec. 17) (Riley, J.). The county treasurer conducted a public sale of property based on unpaid property taxes. The highest bidder, who received a tax sale certificate, notified the record owner that she intended to petition for a tax deed unless the property was timely redeemed. Rather than redeem the property, the owner filed a motion to set aside the tax sale under a new cause number and without providing notice to the bidder. The bidder then successfully petitioned the original court for a tax deed. After discovering the parallel filings under a different cause number, the issuing court vacated its order and held a bench trial, ruling in favor of the bidder when the owner did not appear. The owner filed a motion to correct error and “set aside,” and then moved for an injunction after the court issued an
order directing the auditor to issue a tax deed. Rather than wait for the hearing set by the trial court, the owner filed a notice of appeal. On appeal, the owner sought a ruling that he received “insufficient notice of the tax sale proceedings in violation of his right to due process, thereby rendering [the bidder’s] tax deed void.” The court, however, noted that Indiana law makes tax deeds incontestable except “by appeal from the order of the court directing the county auditor to issue the tax deed,” and that such appeals must be filed in the same court that issued the deed since they require factual determinations about its validity. It reasoned that the owner’s motion was proper as substantively a request for relief from judgment under Trial Rule 60(B); but the owner’s notice of appeal was not. A Rule 60(B) motion, the court explained, is a procedural prerequisite for appealing the issuance of a tax deed and must be ruled on to perfect the appeal. The court remanded the case to allow the trial court to rule on the owner’s motion.
Insurance coverage and the known loss doctrine In a dispute over insurance coverage for environmental contamination, the Indiana Court of Appeals held that the known loss doctrine was not a bar to coverage where the insured had actual knowledge of the contamination but lacked actual knowledge of the legal liability to remediate the contamination at the time the policy was purchased. Thomson, Inc. v. XL Insurance America, Inc., 22 N.E.3d 809 (Dec. 16) (Kirsch, J.). Thomson purchased two manufacturing plants from General Electric. The first, located in Taiwan, was purchased in 1987. As a part of the purchase, Thomson and GE determined that solvents
from the plant had contaminated the surrounding soil and groundwater. With respect to groundwater contamination, they determined that remediation was neither required nor feasible, and the Taiwan Environmental Protection Agency did not order a cleanup, in large part because it lacked the legal authority to do so. In 2000, however, the Taiwanese legislature passed a new statute that allowed for the imposition of retroactive environmental liability, and in 2002 the local environmental protection bureau issued an order requiring groundwater remediation. The second plant, located in Circleville, Ohio, was also acquired in 1987. Thomson operated it until it was closed in 2004. As a result of contamination at that site, in 1994 the Ohio EPA ordered Thomson to investigate the suspected contamination and develop a remediation plan. In 2011, a new order was issued that requested additional soil sampling in an area not included in the 1994 order. XL sold insurance policies to Thomson, including for the coverage years of 2000-02. Thomson filed claims under those policies for costs incurred in the Taiwan remediation and the Circleville investigation. XL denied coverage; Thomson sued for defense and indemnity coverage; and the parties filed cross-motions for summary judgment. The trial court denied Thomson’s motion and granted XL’s motion on the theory that known losses precluded coverage under XL’s policies. The known loss doctrine states that one may not obtain insurance for a loss that has already taken place. Thus, the doctrine will bar coverage if an insured has actual knowledge that a loss has occurred, is occurring or is substantially (continued on page 40) RES GESTÆ • APRIL 2015
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RECENT DECISIONS 12/14 continued from page 39 certain to occur on or before the effective date of the policy. However, the doctrine does not bar coverage when the insured policyholder only knows of conditions that might, if the law was different, lead to liability. The Court of Appeals determined that the trial court had confused the environmental contamination itself with the legal liability to remediate it. As a result, with respect to coverage for the Taiwanese remediation, the Court of Appeals reversed summary judgment, finding that Thomson was entitled to coverage. Similarly, with respect to the Circleville plant, Thomson sought coverage for the area in the 2011 order that had not previously been subject to the Ohio EPA’s decree. As a result, the Court of Appeals found an issue of material fact as to whether Thomson had actual knowledge of its liability at this location prior to its purchase of the policies.
Statute of limitations for written contracts On a claim for breach of an agreement to purchase stock for a set price and to either satisfy a mortgage on real estate or convey the real estate deed by certain dates, the Indiana Court of Appeals affirmed application of the 10-year statute of limitations for written contracts other than those for the payment of money, rather than the 6-year limitation period for written contracts for the payment of money. Folkening v. Van Petten, 22 N.E.3d 818 (Dec. 16) (Crone, J.) Van Petten and Folkening were involved in several business relationships, including an agreement under which Van Petten provided consulting services and a mortgage loan obtained by Folkening and cosigned by Van Petten. In exchange for co-signing, Van Petten provided a 50-percent ownership interest in the real estate and 10-percent own40
RES GESTÆ • APRIL 2015
ership in a company he owned. Subsequently, the parties entered into a release and settlement agreement under which Folkening and his co-defendant entities agreed to pay Van Petten $175,000 in exchange for the repurchase of stock held by her in the companies and to pay off and satisfy the cosigned mortgage. In the event the company failed to satisfy the mortgage, Van Petten agreed to deliver the deed to the underlying property by a certain date. The agreement also included mutual releases, an indemnification clause and a nondisparagement clause.
Court of Appeals reasoned that traditional agreements for the payment of money such as checks or promissory notes are strict agreements to pay money to another party only, rather than agreements to pay money in exchange for something else, such as goods, services, stock shares or real property. And the Court of Appeals was persuaded that the inclusion of release, indemnification and nondisparagement clauses, as well as provisions for the conveyance of the real estate, further removed the agreement from the narrower 6-year limitation period.
Folkening never performed under the release agreement, but more than six years passed before Van Petten filed a complaint for breach of contract. Before trial, the defendants filed a motion to dismiss and a subsequent motion for summary judgment, arguing (unsuccessfully) that Van Petten’s claim was barred by the 6-year statute of limitations that applied to written contracts for the payment of money. The defendants reasoned that in substance the action was for the payment of money. The trial court disagreed, concluding that the proper analysis was to examine the substance of the contract, which concerned more than just the payment of money.
Initiating a suit continues to require strict compliance with Trial Rule 3
The Indiana Court of Appeals affirmed the trial court, viewing the question as a matter of statutory interpretation. It found the plain language of the statute – Indiana Code sections 34-11-2-9 and -11 – unambiguously establishes that the limitations period is based on the substance of the contract and not on the substance of the action. It was undisputed that the settlement agreement was the basis for Van Petten’s claims, and the Court of Appeals agreed with the trial court that the agreement concerned more than the payment of money. The
The Indiana Court of Appeals reaffirmed its strict application of the statute of limitations in a personal injury case, dismissing the plaintiffs’ claims where the complaint and filing fee were timely filed, but the summonses were tendered three days late. Smith v. Haggard, 22 N.E.3d 801 (Dec. 11) (Mathias, J.). On Nov. 3, 2011, plaintiffs were injured in a car accident and incurred medical expenses as a result. Their attorney prepared three separate complaints against the allegedly responsible driver. The attorney timely mailed the three complaints and filing fees to the clerk via certified mail on Nov. 2, 2013, but summonses and the attorney’s appearance was not enclosed. On Nov. 6, the attorney faxed his appearance and summonses for all three cases to the clerk. Defendant filed a motion to dismiss based on the 2-year statute of limitations. Plaintiffs contended that they had substantially complied with Trial Rule 3, which states that a civil action is commenced “by filing with the court a com-
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plaint … by payment of the prescribed filing fee … and, where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.” Plaintiffs further argued that no prejudice could be shown because the summonses were filed within four days of the complaints. The trial court granted the motion to dismiss. The Court of Appeals affirmed, reiterating its prior rejection of the notion of substantial compliance with Trial Rule 3. Acknowledging that dismissal of the complaint produces a harsh result and may seem at odds with the goal of resolving cases on their merits, the court concluded this preference does not displace the legislative policy protecting courts from stale claims and ensuring that parties are given reasonable notice that a claim is being asserted against them. Further, a substantial compliance argument would require a court to disregard the clear language of Trial Rule 3.
INDIANA SUPREME COURT ACCEPTS TRANSFER
Indiana Supreme Court awards grants totaling more than $242,000 he Indiana Supreme Court awarded $242,911 in grant money to benefit local family court projects across the state. The grants (ranging from $4,000 to $35,000) were awarded to the following counties:
Judge Charles Pratt, Allen County – $35,000 Judge Cynthia Ayers, Marion County – $30,000 Judge Cynthia Ayers, Marion County IV-D Court – $30,000 Judge Judith Stewart, Brown County – $20,000 (shared with Jackson/Lawrence Co.) Judge Bruce MacTavish, Jackson County – $20,000 (shared with Brown/Lawrence Co.) Judge Andrea McCord, Lawrence County – $20,000 (shared with Brown/Jackson Co.) Judge Elizabeth Tavitas, Lake County – $20,000 Judge Thomas Stefaniak Jr., Lake County – $20,000 Judge Thomas Alevizos, LaPorte County – $15,000 Judge Mary Margaret Lloyd, Daviess/Pike/Vanderburgh/Vigo/Warrick Counties – $12,000 Judge Thomas Busch, Tippecanoe County – $10,000 Judge David Bonfiglio, Elkhart County – $10,000 Judge Frances Hill, Monroe County – $10,000 Judge Dena Martin, Greene County – $6,184 Judge Michael Robbins, Lawrence County – $6,002 Judge Douglas Fahl, Whitley County – $5,000 Judge Alison Frazier, Jefferson County – $5,000 Judge Lori Thatcher Quillen, Owen County – $4,725 Judge Gary Smith, Jennings County – $4,000
• Selective Insurance Co. of South Carolina v. Erie Exchange, 14 N.E.3d 105 (Ind. Ct. App. 2014) (addressing whether the plaintiff building owner and its insurer were covered as additional insureds on a commercial general liability insurance policy issued to tenants covering the leased premises and, if so, whether a coverage exclusion applied), listed on the Dec. 19 transfer list.
The Family Court Project began in 1999 with cooperation from the Indiana General Assembly. Since then, the Supreme Court has distributed nearly $3.5 million to support family court projects across the state. The grants are considered “seed money,” and pilot counties are expected to transition within a reasonable time from “seed” funding to local funding.
• Markey v. Estate of Markey, 13 N.E.3d 453 (Ind. Ct. App. 2014) (addressing whether stepson’s claim for breach of contract to make a will was timely filed against stepmother’s estate), listed on the Dec. 19 transfer list.
3. Court-Related Services – implementing other programs that support families throughout the court process
The grants are designed to create innovative programs that improve the court process for families. Priority was given to applications that emphasized four areas of programming: 1. Access to Justice – improving access to the courts for families without attorneys 2. ADR/Early Case Management – promoting timely resolution of cases
4. Judicial-Academic Partnerships – engaging academic partners in researching and analyzing court practices and services, and identifying evidence-based practices More information on the Family Court Project is available at courts.in.gov/family-court.
1. Excluding disciplinary proceedings.
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By Prof. Joel M. Schumm
Public intoxication, insufficient evidence, other holdings
CRIMINAL JUSTICE NOTES 12/14
uring December the Indiana Supreme Court decided cases involving the public intoxication statute, the course-of-investigation exception to the hearsay rule, and the appropriateness of a sentence for dealing methamphetamine. The Indiana Court of Appeals issued opinions addressing a wide variety of issues summarized below.
INDIANA SUPREME COURT CASES Public intoxication is not unconstitutionally vague (nor a blank check for law enforcement)
As amended in 2012, the public intoxication statute criminalizes a person’s appearance in public while intoxicated under only limited circumstances, including when the person “harasses, annoys, or alarms another person.” Ind. Code §7.1-5-1-3(a)(4). In Morgan v. State, 22 N.E.3d 570 (Ind. 2013), the Indiana Supreme Court considered a vagueness challenge to the term “annoys” in the statute. The Court acknowledged that a subjective application of the term “would lead to absurd results and exceedingly broad discretion in enforcement.” Id. at 576. Therefore, based on the longstanding purpose of the statute and precedent, the justices concluded “that the application of a reasonable person standard to the term ‘annoys’ satisfies constitutional requirements.” Id. at 577. Thus, a conviction can only be sustained if the defendant’s conduct Joel M. Schumm would annoy a reasonClinical Professor of Law able person. Id. IU Robert H. McKinney Turning to the School of Law sufficiency of the Indianapolis, Ind. evidence, the Court email@example.com
RES GESTÆ • APRIL 2015
noted that a police officer observed the defendant sleeping at a bus shelter, and the defendant initially refused to leave, became agitated, and swayed when he stood up to exit. Id. at 578. Noting that the defendant did not yell or make unreasonable noise – and that his agitation upon being awakened would not be viewed as annoying by a reasonable person – the Court found insufficient evidence to support the conviction. Id. at 578-79.
Course-of-investigation exception is narrow In Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014), the Indiana Supreme Court considered whether a detective’s testimony about his conversation with a witness and her son was inadmissible hearsay “because it conveyed to the jury the substance of their out-of-court statements: that ‘Big D,’ or [the defendant], was the person who fired the weapon.” The Court emphasized the potential for abuse of such course-of-investigation testimony, which is only excluded from hearsay for the narrow purpose of bridging gaps in testimony “that would otherwise substantially confuse or mislead the jury.” Id. (quoting Jones v. Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011)). Applying the three-part test of Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994), the Court found the testimony inadmissible. Nevertheless, the conviction was upheld because the error was harmless. Beyond the civilian witness’ identification, the detective who was conducting surveillance had a “clear view” of the defendant, saw no one else near him when he shot the gun, and identified him from a photo array and in open court. Blount, 22 N.E.3d at 568.
Dealing methamphetamine sentence reduced in 3-2 opinion In Park v. State, 22 N.E.3d 552, 554-55 (Ind. 2014), the Indiana Supreme Court reviewed a 40-year sentence (26 years in the Department of Correction, four years in Tippecanoe Community Corrections, and 10 years suspended to probation) imposed upon a defendant convicted of dealing methamphetamine, a Class A felony, who had a criminal history and history of substance abuse. The three-justice majority concluded in its “collective judgment” that the sentence was excessive and remanded the case to the trial court for a “more appropriate sentence given the nature of the offense and character of the defendant”: 30 years (20 in the Department of Correction, two on Community Corrections, and eight suspended to probation). Justice Dickson, joined by Justice Massa, dissented, concluding the case was not “sufficiently rare or exceptional to warrant appellate intrusion into the trial court’s sentencing decision.” Id. at 556. The dissent emphasized the “serious nature of the offense” – manufacturing meth “in a residential area where families with several young children lived” – and the poor character of the defendant, who committed the offense while on probation and whose criminal history was “riddled with such probation violations and revocations.” Id. at 557-58. Finally, taking aim at the “relatively little modification” of executed time from 30 to 22 years, Justice Dickson observed that Indiana’s appellate sentence review and revision capacity “does not warrant such minor adjustments.” Id. at 557.
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INDIANA COURT OF APPEALS CASES Insufficient evidence of intimidation In Soucy v. State, 22 N.E.3d 683 (Ind. Ct. App. 2014), an incarcerated defendant called his mother to ask that she relay threats to a woman who had assisted police in arresting him for a probation violation. His mother refused to convey those threats. Id. at 684. Because the intimidation statute requires “communication such as to influence conduct or place a person in fear of retaliation,” the Court of Appeals concluded that an essential element was not proven without further dissemination of the threats to influence or impact the intended recipient. Id. at 686. Even though the defendant had pleaded guilty to the charge, the Court of Appeals found the defendant was entitled to post-conviction relief because his lawyer was ineffective by failing “to advise him on an overlooked defense of actual innocence.” Id.
mation on a marriage license. Id. (citing Ind. Code §31-11-11-1). But prosecutors did not pursue that charge against White.
Sitting in the driver’s seat of a parked car is ‘operating’ In 2013, the General Assembly added the following definition of “operate” to Title 9, which includes driving offenses like operating a vehicle while intoxicated: “to navigate or otherwise be in actual physical control of a vehicle.” Ind. Code §9-13-2-117.5. In West v. State, 22 N.E.3d 872 (Ind. Ct. App. 2014), the Court of Appeals was asked to apply the new definition for the first time. Because the defendant was found sitting in the driver’s seat with the engine running, the court found sufficient evidence that she was in “actual physical control” as required by the statute. Id. at 876.
Supplying a fictitious name is not identity deception After being stopped by police, Christopher Duncan identified himself as George Walker and later supplied the same name and a date of birth of April 6, 1967 when he was booked in the local jail. Duncan v. State, 23 N.E.3d 805, 808 (Ind. Ct. App. 2014). The State offered no evidence at trial that the name and date of birth belonged to a real person. Id. at 814. Relying heavily on Brown v. State, 868 N.E.2d 464 (Ind. 2007), which had reversed convictions for identity deception against a man who pretended to work for a radio station and used a fake name, the Court of Appeals reversed Duncan’s conviction because “the identity deception (continued on page 44)
Perjury conviction reversed Among many issues raised by former Secretary of State Charles White, the Court of Appeals considered whether providing his incorrect address on a marriage license application supported a conviction for perjury. White v. State, 25 N.E.3d 107 (Ind. Ct. App. 2014). Reiterating longstanding precedent that a conviction cannot be supported if the false information is “of no importance or immaterial,” the court reversed the conviction because the only material residence information was the county – not the street address – and White included his correct county of residence. Id. at 123. Others may not fare so well in the future, though. A separate statute criminalizes furnishing false infor-
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CRIMINAL JUSTICE NOTES ASSOCIATE ATTORNEY with good work ethic and leadership skills. Thorne Grodnik, LLP, Elkhart, Ind. Contact Glenn L. Duncan with résumé at email@example.com with copy to Lisa Gilkey Schoetzow at firstname.lastname@example.org.
continued from page 43 statute does not criminalize the use of a fictitious name.” Id. at 813.1
Prosecutorial misconduct meets high standard for fundamental error In December the Court of Appeals ordered publication of its earlier not-for-publication memorandum decision on rehearing in Brummett v. State, 21 N.E.3d 840 (Ind. Ct. App. 2014). That opinion reaffirmed the court’s earlier decision that found the prosecutor’s misconduct “much more egregious than that in Ryan [v. State, 9 N.E.3d 663 (Ind. 2014)]” such that it qualified as “fundamental error under the standard now to be used” from Ryan.2 1. Although not charged in the case or discussed in the opinion, a person who refuses to provide his name, address and date of birth to a law enforcement officer who stops him for an infraction or ordinance violation commits a Class C misdemeanor. Ind. Code §34-285-3.5. 2. The Indiana Supreme Court granted transfer in February of 2015 to summarily affirm the Court of Appeals except for the reference to “the standard now to be used.” Brummett v. State, 24 N.E.3d 965 (Ind. 2015). The justices explained that Ryan had not altered the doctrine of fundamental error and thus the rehearing opinion language was “potentially misleading.” Id. at 966.
ISBA members: Update your addresses email & postal online at www.inbar.org 44
RES GESTÆ • APRIL 2015
CLASSIFIEDS Email or fax your classified word ad to Susan Ferrer, email@example.com or 317/266-2588. You will be billed upon publication. ISBA members 40¢ per word, $10 minimum Nonmembers 60¢ per word, $15 minimum
ASSOCIATE ATTORNEY POSITION: Associate wanted to join fast-growing estate & farm succession planning practice that will be located in Peru, Ind. This position involves a supporting role in the comprehensive planning process for high net worth farm families with sophisticated operations, including attendance of client meetings, drafting estate planning documents and client communications, drafting business entity governing documents with focus on buy-sell agreements, and working with other members of a client’s team of advisors to implement plans. A qualified candidate should be a self-starter with impeccable attention to detail and have exceptional organizational and written & oral communication skills. A background in agriculture would be ideal. The right candidate will have a desire to be mentored by a partner invested in his or her growth as a lawyer with an eye toward a long-term shared career and the ability to work both independently and with other attorneys and staff in a small firm. After a period of training, flexible remote working arrangements may be available. A J.D. from an accredited law school and an active Indiana bar license are required. We offer a competitive compensation package, and salary is commensurate with experience. Please send cover letter, résumé and writing sample to: firstname.lastname@example.org.
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 email@example.com.
INDIANAPOLIS LITIGATION attorney available for wide range of litigation and appellate assignments. More than 25 years as litigator. Have handled more than 30 appeals. Either employment or contract arrangement possible. Ronald G. Sentman, 317/875-6702, RonaldS53@comcast.net. 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, firstname.lastname@example.org
FRED PFENNINGER, COMMERCIAL & other collections. When you need help collecting your judgment. On faculty for over 30 seminars on collection law. Statewide referrals, consultation and co-counsel positions. Pfenninger & Associates, 317/848-7500, email@example.com
INDIANAPOLIS IMMIGRATION attorney seeks professional or co-counsel positions with Indiana attorneys in the practice of immigration law. Over 25 years’ experience in immigration. Will handle adjustment of status, change of status, labor certificates and other matters. Also, will attend interviews at Indianapolis Immigration Office. Thomas R. Ruge, Lewis & Kappes, P.C., 317/639-1210, firstname.lastname@example.org
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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, email@example.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, firstname.lastname@example.org 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
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, email@example.com; www.jbrownelaw.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
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VETERANS DISABILITY. Accepting referrals of veterans' disability, military Medical and Physical Evaluation Boards, Courts Martial, military discharge upgrade and Boards for Correction of Military Records cases throughout Indiana and across the country. Bosley & Bratch, 800/9536224, firstname.lastname@example.org, www.lawyers4veterans.com
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RES GESTÆ • APRIL 2015
RG 04.15_RG 09.05 4/16/15 2:23 PM Page 46
By Hon. Steven H. David
Wanted: 60 mentors in 60 days! The challenge: 60 mentors in 60 days!
ince late 2009, hundreds of lawyers in Indiana have benefited from having mentors help them navigate through the challenges and recognize the opportunities that our profession presents. As the chair of the State Bar’s Professional Legal Education, Admission & Development (PLEADS) Section, I am saddened to report that at the present time we are approximately 20 mentors short. In other words, there are 20 young lawyers in Indiana who have asked for mentoring assistance, and we don’t have mentors to assign them. We are 12,000 members strong, and yet we are 20 mentors short. Unacceptable! So, what are we going to do about it? We are going to get 60 mentors in 60 days, but we need your help! This is an all-out challenge to all sections and to all individuals to refer names to Maryann Williams at the ISBA on or before June 26 at email@example.com. To the section of the State Bar that provides the most names of members who agree to serve as mentors, the chair of PLEADS will provide a 1-hour ethics presentation or a 1-hour general practice presentation. And to the individual who refers the most names of members who agree to serve as mentors, lunch will be provided by the chair of the PLEADS section. We are asking you to step up to the plate and pay it forward. There is no substitute for a good mentor. The State Bar must stand behind its members. This is a great opportunity to serve your fellow lawyer. Mentors can also earn up to 12 hours of ethics credits, which are awarded to participants who complete the program. And there is no cost to the mentor (or mentee). Justice Steven H. David The PLEADS Section of the ISBA Indiana Supreme Court undertook the process of compiling Zionsville, Ind. and submitting a program for
RES GESTÆ • APRIL 2015
approval that was curriculum based. The CLE Commission has approved these materials for CLE and APC credits upon certification by the ISBA. The materials are designed for an in-house mentoring program, an outside mentoring program, a large firm program that is run in-house and a governmental attorney program based on an individualized plan developed by the mentor and mentee. Thus, any lawyer in Indiana meeting the requirements of these materials to serve as a mentor (or mentee) may obtain CLE (or APC) credits approved by the Indiana Supreme Court Commission for Continuing Legal Education. This program is not limited to only new attorneys but to any lawyer interested in being mentored.
Qualifications for the mentor Each mentor must: • be a licensed Indiana attorney and “active in good standing”; • be admitted to the practice of law in Indiana for not less than five years; • have a reputation among judges and peers in the local legal community for competence and ethical and professional conduct; and • carry professional liability insurance with the minimum limits of $100,000 per occurrence and $300,000 in the aggregate, or its equivalent, except that judges, government attorneys, in-house counsel for a corporation, lawyers employed by a non-profit agency or lawyers mentoring in-house are exempt from this requirement. Also, if a potential mentor has a disciplinary complaint pending before the Indiana Supreme Court, the individual must submit a written statement to the ISBA Mentor Match Program describing the circumstances of the complaint. Come on! Help us get 60 mentors in 60 days! With the collegial spirit of Indiana’s bench and bar, we can do this!
April 2015 edition of Res Gestae, the journal of the Indiana State Bar Association