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June 2013

JUDGE JAMES E. NOLAND: FAIRNESS WAS ‘ESSENTIAL’ MUSCATATUCK: A PROVING GROUND FOR CHARACTER USHER CONSIDERED: IDENTITY THEFT & UNWELCOME ADVANCES

Vol. 56, No. 10


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The Journal of the Indiana State Bar Association

RES GESTÆ June 2013

DEPARTMENTS

18 PROVING GROUND

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22 JUDGE NOLAND

Vol. 56, No. 10

PRESIDENT’S PERSPECTIVE Daniel B. Vinovich, Highland, 2012-2013

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ETHICS CURBSTONE

32

RECENT DECISIONS 3/13

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CRIMINAL JUSTICE NOTES 3/13

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FAIR COMMENT

Donald R. Lundberg, Indianapolis

D. Lucetta Pope and Ryan G. Milligan, South Bend

Jack Kenney, Indianapolis

Donna J. Bays and Jessica L. Mayflower, Indianapolis

F E AT U R E S 26 UNWELCOME EDITOR Susan J. Ferrer sferrer@inbar.org

GRAPHIC DESIGNER Vincent Morretino vmorretino@inbar.org

ADVERTISING Kim Latimore klatimore@inbar.org

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Tina M. Cooper Prof. Joel M. Schumm wpc@inbar.org

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COMMITTEE MEMBERS NEEDED FOR 2013-2014

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ACHIEVEMENT AWARD NOMINATIONS SOUGHT

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MUSCATATUCK: A PROVING GROUND FOR CHARACTER By Bill Brooks, Indianapolis

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JUDGE NOLAND: FAIRNESS WAS ‘ESSENTIAL’ By Suzanne S. Bellamy, Indianapolis

17 NOMINATING REPORTS

20 HEALTH CARE REFORM

44 CLASSIFIEDS

Cover photo of the grand interior hallway of the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis by Vincent Morretino

Res Gestae (USPS–462-500) is published monthly, except for January/February and July/August, by the Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. Periodicals postage paid at Indianapolis, Ind. POSTMASTER: Send address changes to Res Gestae, c/o ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204. Subscriptions to members only, $5 annually from dues. All prior issues available exclusively from William S. Hein & Co., 1285 Main St., Buffalo, NY 14209. ISBA members are encouraged to submit manuscripts to the editor for possible publication in Res Gestae. Article guidelines can be obtained by calling 800/266-2581 or visiting www.inbar.org. Res Gestae’s printer, Print Directions, Inc., is an Indiana-certified Woman Business Enterprise. ©2013 by the Indiana State Bar Association. All rights reserved. Reproduction by any method in whole or in part without permission is prohibited. Opinions expressed by bylined articles are those of the authors and not necessarily those of the ISBA or its members. Publication of advertisements is not an implied or direct endorsement of any product or service offered.

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Record attendance & a grand time!

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INDIANA STATE BAR ASSOCIATION One Indiana Square, Suite 530 Indianapolis, IN 46204 317/639-5465 • 800/266-2581 317/266-2588 fax • isbaadmin@inbar.org http://www.inbar.org

OFFICERS President President-Elect Vice President Secretary Treasurer Counsel to the President

Daniel B. Vinovich, Highland James Dimos, Indianapolis Jeff R. Hawkins, Sullivan Todd J. Meyer, Lebanon Holly M. Harvey, Bloomington Hon. Michael N. Pagano, Crown Point

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 Past President House of Delegates House of Delegates Young Lawyers Section

Shelice R. Tolbert, Crown Point Todd A. Etzler, Valparaiso James M. “Jay” Lewis, South Bend Hon. Thomas J. Felts, Fort Wayne Elizabeth B. Searle, Lafayette John A. Conlon, Noblesville Seth M. Lahn, Bloomington Angela L. Freel, Evansville J. Todd Spurgeon, New Albany Kimberly S. Dowling, Muncie Julia L. Orzeske, Indianapolis Chasity Q. Thompson, Indianapolis Clayton C. Miller, Indianapolis C. Erik Chickedantz, Fort Wayne Mitchell R. Heppenheimer, South Bend, Chair Jessie A. Cook, Terre Haute, Chair-Elect Reynold T. “Ren” Berry, Indianapolis, Chair

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

mall & Strong” was the motto for this year’s ISBA Solo & Small Firm Conference, held June 6-8 at the French Lick Resort. While the event was indeed strong, it certainly was not small – a record 330 folks were in attendance at the three-day conference, now in its 12th year and recognized as one of the top solo & small firm conferences in the nation and a marquis event here at home. Preeminent national speakers provided a wealth of information and practical advice on how to improve one’s productivity, increase profitability and reduce stress. CLE credits were abundant. This year’s participants were able to earn up to 15.5 credit hours via 44 sessions if they were so inclined. One part of the conference focused on the nuts & bolts of law practice management. This featured two nationally renowned leaders in the field of solo & small firm practice. Topics like insurance issues for a law practice and reliable procedures for time management, billing and collecting were covered. Another part was devoted to technology and its best use in the law office. These seminars dispensed skills needed to apply the latest technology in order to serve clients while keeping office costs reasonable. Substantive law areas were covered, including trial practice and evidence, estate planning and probate, ADR, and bankruptcy, business, criminal, elder and family law, to name a few. Conference attendees were honored to have two Indiana Supreme Court justices participate in the meeting – Chief Justice of Indiana Brent E. Dickson and Justice Loretta H. Rush. Both not only provided insightful remarks, but also attended many of the sessions and social events. Our State Bar is extremely fortunate to have such a good and close relationship with our judiciary. Networking is a major benefit of this meeting. Solo & small firm lawyers know networking is essential to one’s practice. The conference planning committee did a fantastic job recognizing this by creating opportunities like a “networking luncheon.” The conference also has a long-range development committee, which facilitated a law student outreach that hosted 25 students from Indiana law schools. Another boon of this event is you get to check out a lot of new products available for lawyers. Approximately 25 vendors were on

hand to demonstrate, train and answer attendees’ questions about many new items to improve your practice. A mobile app was created for this year’s conference. Attendees were able to view instantly on their smartphones and tablets the schedule of events, information on speakers and exhibitors, and maps of the area and meeting locations. Contact information of the attendees was also available in order to make networking easier, and Wi-Fi was free to all. New, too, was a “staff track” of programs for paralegals, legal assistants, secretaries and legal administrators. Programs began as early as 7:15 a.m. and ran as late as 9 p.m. so you could find time during the day to take breaks and enjoy what the southern Indiana venue had to offer, which was quite a bit. The French Lick Resort is one of my favorite places – a grand ole hotel with plenty to do, including swimming, spa treatments, horseback riding, golf, gambling and much more. Significant discounts were afforded conference attendees for many of these activities. This year, lawyers and their guests were also provided the opportunity to participate in planned events such as go-cart racing, a team bowl-a-thon, wine tasting and a walking tour of the historic West Baden Hotel. Many attendees enjoyed wellness activities such as a 5K fun run/walk, yoga class and even water aerobics. Or if you are more of the relaxing type, sitting in a rocker on the porch enjoying some ice cream and listening to a piano is tough to beat. This event had it all! Special thanks go out to the planning committee and, in particular, Marc Matheny, chair, for putting on a wonderful event! I would encourage you to attend next year’s ISBA Solo & Small Firm Conference. The date and location are already set – June 5-7, 2014 at the French Lick Resort. Save the date!

PRESIDENT’S PERSPECTIVE Daniel B. Vinovich 2012-2013

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he Fellows of the Indiana Bar Foundation inducted 30 members May 31 at the annual dinner meeting in Chicago.

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The 2013 Fellows class includes 14 attorneys from central Indiana, nine from northwest Indiana, four from southern Indiana and three from Fort Wayne. Two of the Fellows are members of judiciary. “These attorneys have demonstrated excellent legal professionalism and served the communities where they practice and live,” said Charles R. Dunlap, a Master Fellow and executive director of the Indiana Bar Foundation. “They were nominated by another Fellow as worthy of this distinction among their peers.” Membership in the Fellows is awarded by recommendation and approval by the Foundation in honor of consistent demonstration of professional distinction. Many recognized leaders of the Indiana State Bar are Fellows, including trial and appellate-level judges. It is an exclusive group of attorneys who merit membership. Fewer than 1,000 attorneys in Indiana have been accepted into the Fellows. Members join at various levels. The Fellows began in 1979. Eligibility requirements include members in good standing who are recognized for professional, public and private careers that demonstrate outstanding legal ability and devotion to the welfare of their community, state and nation as well as to the advancement of the legal profession. The Indiana Bar Foundation is dedicated to strengthening access to justice and appreciation for the rule of law in Indiana by providing lawrelated educational opportunities, assisting people who have difficulty

Legal research breakthrough: more from Casemaker he Indiana State Bar Association has renegotiated its contract with our online legal research provider to dramatically improve its value to our members. Not only has the basic Casemaker product significantly improved, but previously pay-as-you-go research tools are now FREE to all members. These additional tools sold for up to $450 before May 15.

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There are three research tools that now are free with your membership. They are CaseCheck+, which allows you to determine the treatment by later courts of any cited case; CiteCheck, which allows you to submit a legal brief to have your cites double-checked; and Casemaker Digest, which allows you to designate certain areas of practice and have appellate court decisions in these areas sent to you daily.

BENCH & BAR NEWS

30 inducted as Bar Foundation Fellows

Casemaker now has mobile apps for your Android, iPhone and iPad, and the entire Casemaker product is much more user friendly. If you have not tried Casemaker recently, you will be pleasantly surprised at how well it performs. Casemaker is accessible via the State Bar’s website, www.inbar.org. Whether you are in the office, on the road or at home, you now have research from all 50 states at your fingertips. The new $450 savings is impressive, and the ease of use is exceptional. Membership in the ISBA is essential to your practice.

accessing the justice system, and improving Indiana’s judicial system and the legal profession.

Southern Indiana Fellows: David A. Lewis, Jeffersonville; Christopher M. Ripley, Vincennes; and J. Todd Spurgeon, New Albany; Master Fellow: James F. Bohrer, Bloomington.

Central Indiana Fellows: Scott L. Barnhart, Andrew L. Campbell, Stephanie J. Hahn, Bart A. Karwath and Todd Relue, all from Indianapolis; Life Fellows: Jerald I. Ancel, Kara M. Kapke, Julia Spoor Gard, Charles P. Schmal and Hon. Martha Blood Wentworth, all from Indianapolis; Master Fellows: Stephen E. Arthur, Indianapolis, and John S. Capper IV, Crawfordsville; Patron Fellow: Linda K. Meier, Greenwood; Life Patron Fellow: Steven Ancel (ret.), Indianapolis.

Fort Wayne Fellows: Bart L. Arnold and Deborah M. Leonard; Master Fellow: Jon A. Bomberger.

Northwest Indiana Fellows: Eric Mathisen, Valparaiso, and Robert L. Clark, Valparaiso; Life Fellow: Robert D. Brown, Valparaiso; Master Fellows: Leane English Cerven, Munster; Richard McDevitt Jr., Merrillville; David R. Schneider, Crown Point; and Hon. Diane Kavadias Schneider, Crown Point; Patron Fellows: Gerald M. Bishop, Merrillville, and Tony Walker, Gary.

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Committee members needed for next operational year

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ATTENTION

im Dimos, Indianapolis, ISBA president-elect, will soon begin the process of appointing members to our various committees for the 2013-14 operational year. The State Bar wants and needs you to participate in the committee work of your professional association! Much of the work of the State Bar is accomplished by its standing and special committees. Consequently, it is vitally important to select members who are dedicated and willing to devote time and effort to the challenges facing the profession and the Association. Standing committees are established by ISBA bylaws and are usually concerned with matters of ongoing interest. The bylaws provide that standing committees have a minimum number of members in staggered, three-year terms. If you are already on a standing committee, you need not reapply unless your three-year term expires in 2013. If it does, you should reapply in order to remain on the committee. Special committees are established by the ISBA Board of Governors to accomplish special assignments or study emerging trends. They have no less significance than standing committees, but the terms of the members are for only one year. You must reapply each year, or you may be removed from the committee. Although it is impossible to appoint everyone to his or her first choice, every effort will be made to accommodate any member who expresses an interest in service. All members interested in serving on a committee should fill out the form on the adjacent page, indicating first and second preference(s) only, and return the information to ISBA Executive Director Tom Pyrz by Aug. 16.

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Standing Committees The Affiliate Membership Committee encourages Association membership of paralegals, law librarians, legal administrators and court administrators. The American Citizenship Committee espouses the advantages of American citizenship and assists the federal courts in making naturalization ceremonies more meaningful. The Articles & Bylaws Committee exercises parliamentary jurisdiction for the Association, reviews the articles and bylaws, prepares additions, deletions and amendments whenever appropriate, and recommends the same to the Board of Governors. The Attorney Fee Dispute Resolution Committee is exploring the need for and feasibility of a statewide attorney fee dispute resolution process, to complement but not compete with existing local programs. The Aviation Law Committee makes a continuing study of and recommendations pertaining to air crash litigation, aviation laws and regulations, safety and insurance requirements for private and commercial aircraft operating within the state, and other matters pertinent to aviation and space laws. The Casemaker Improvement Committee will determine how to increase usage by members, including initiatives such as better informing members of the benefit, offering training to members and improving the offerings and operations of Casemaker. The Committee on Civil Rights of Children makes a continuing study of laws pertinent to the civil rights of children and reports its findings and recommendations to the Board of Governors. The ISBA in collaboration with the Indiana Commission on

Disproportionality in Youth Services sponsored the “Summit on Racial Disparities in the Juvenile Justice System: A Statewide Dialogue” in the summer of 2009. The committee recommended action in this regard, including legislation, HEA 1193, which became law effective July 1, 2010. In 2011, the committee produced a follow-up report of the Indiana Juvenile Mental Health Screening, Assessment & Treatment Project and also proposed a rule – the Right to Counsel in Juvenile Court Proceedings – for adoption and recommendation to the Supreme Court. The rule passed the House of Delegates unanimously, and the Indiana Supreme Court Committee on Rules of Practice & Procedure is currently studying the proposal. The Clients’ Financial Assistance Fund Committee manages and administers the Clients’ Financial Assistance Fund for the purpose of maintaining the integrity and protecting the name of the legal profession in Indiana. The Diversity Committee promotes full and equal participation in the ISBA, our profession and the justice system by all persons. The Federal Judiciary Committee monitors all activities that affect the federal court system and federal court judges. The Honors Committee is empowered, upon consent of a majority of the Board of Governors, to confer appropriate recognition upon any person who has rendered outstanding service to the legal profession. This committee also reports to each annual meeting of the Association the names of all members who have died since the date of the last report.


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(Please print or type) The Committee on Improvements in the Judicial System promotes the election or appointment of properly qualified candidates for judicial office. The committee also concerns itself with judicial salaries, pensions and tenure, and studies other facets of the judicial system in Indiana. The Latino Affairs Committee seeks to provide a unified voice addressing the legal issues uniquely affecting the Latino community of Indiana. The committee coordinates resources to ensure equal access to justice for Indiana’s Latino community, promotes the legal concerns of Latinos within the broader legal community, and raises awareness of issues that affect the Latino community. The Law Practice Management Committee studies, evaluates and recommends improved methods of managing the practice of law to maximize efficiency, productivity, effectiveness, pleasure and financial reward from such practice. The committee shall also develop and recommend projects and programs that will help members of the Association furnish high-quality legal services to their clients. The Lawyer Advertising Rules Review Committee shall study Indiana’s Rules of Professional Conduct concerning lawyer advertising and recommend any changes that may be needed.

NAME ADDRESS CITY/STATE/ZIP Please indicate your order of preference by a #1 and/or a #2.

Standing Committees

____ Long Range Planning

____ Affiliate Membership

____ Military & Veterans’ Affairs

____ American Citizenship

____ Pro Bono

____ Articles & Bylaws

____ Public Relations

____ Attorney Fee Dispute Resolution

____ Service ____ State Legislation

____ Aviation Law ____ Casemaker Improvement ____ Civil Rights of Children ____ Clients’ Financial Assistance Fund ____ Diversity

____ Technology ____ Unauthorized Practice of Law ____ Wellness ____ Women in the Law ____ Written Publications

____ Federal Judiciary

Special Committees ____ Honors ____ CLE ____ Improvements in the Judicial System

____ Courthouse Art

The Legal Education Conclave Committee brings together lawyers, judges and legal educators to discuss the transition of law students to lawyers and how the bench, bar and academia can assist with that process and to discuss the changes and trends in legal education and their effect on the legal community.

____ Latino Affairs

____ Legal Education Conclave

____ Pension & Benefit Law

The Legal Ethics Committee shall foster and promulgate high ethical standards in accordance

____ Legal Ethics

____ Social Security Disability

(continued on page 10)

____ Law Practice Management ____ Lawyer Advertising Rules Review

____ IndianaDocs ____ Leadership Development Academy

Please return to Tom Pyrz, Executive Director, ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204; 317/266-2588, fax; tpyrz@inbar.org, email.

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COMMITTEES continued from page 9 with the rules of the Supreme Court of Indiana. The committee issues written opinions upon request. Opinions are formal or informal. Formal opinions shall be upon questions of first impression in Indiana and other matters warranting general circulation in the judgment of the committee. Informal opinions shall be upon questions previously resolved by formal opinions. The Long Range Planning Committee considers all facets of the Association’s operation, including facilities, personnel, organizational structure and mission, and recommends long-range goals and procedures to be followed in their attainment. The Military & Veterans’ Affairs Committee shall explore and identify legal issues and needs

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of service members (active duty, Guard or Reserve) living in Indiana or stationed and deployed outside of Indiana, and assist service members and veterans with such needs; continue the Lawyers for Soldiers Program, which provides pro bono legal assistance to service members, veterans and their families; and develop a network of ISBA members (judges, JAGs and lawyers) interested in military and veterans’ issues and assistance. The Pro Bono Committee is responsible for fulfilling the Indiana State Bar Association’s commitment to pro bono efforts as an integral part of its mission and long-range planning. As such, the Pro Bono Committee develops and implements programs to educate members about the need for and opportunities to engage in pro bono civil legal services for the

poor, and encourages members to undertake pro bono representation. The Public Relations Committee is responsible for the formulation of Association public relations policies. This committee recommends ways to improve the relationship between the public and the legal profession by way of presenting the work of the Association and lawyers generally through the use of the press, radio, television and other media. The Service Committee, spearheaded by members of the inaugural class of the ISBA Leadership Development Academy, will launch an annual day of service, promote service by state and local bar associations, present an award at the ISBA Annual Meeting to recognize Indiana attorneys


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committed to serving beyond their clients and much more. The State Legislation Committee monitors the activities of the legislature in those areas of interest pertinent to the profession of law; keeps the Board of Governors informed upon such matters; and supports by testimony and other means the policies of the Association before the General Assembly. The Technology Committee makes recommendations to the Board of Governors as to actions to ensure the proper and effective use of the Internet to further the purpose of service to lawyers and the public. The committee is also addressing other issues of electronic commerce as they relate to the legal profession and the ability of lawyers to serve their clients and the public. The Unauthorized Practice of Law Committee keeps itself informed with respect to all aspects of issues pertaining to the unauthorized practice of law (UPL) in the state of Indiana by nonlawyers. Where appropriate or when requested, the committee shall provide comments or written opinions, formal and informal, on the subject of UPL. The Wellness Committee was established to promote health and personal well-being among judges, lawyers, their staffs and law students by encouraging positive lifestyle changes through increased physical activity, stress reduction, healthier eating, tobacco cessation and the like, and to support them as advocates to make their communities healthier places to live and work. The Women in the Law Committee promotes the advancement of women in the legal profession, law school and society at large by providing educational programs to build successful practices, networking opportunities,

a forum for discussion and understanding of legal issues affecting women, and opportunities for community service. The Written Publications Committee is responsible for reviewing and approving articles on professional subjects in Res Gestae, and solicits professional articles of current interest to the membership.

Special Committees The Continuing Legal Education Committee facilitates the production and delivery of high-quality, affordable CLE programs for the benefit of the legal profession, in coordination with the sections, committees and staff of the ISBA, and other entities serving the needs of Indiana lawyers. The Courthouse Art Committee is encouraging the donation of original artwork of Indiana’s 92 county courthouses, historic or current, to hang in the offices of the ISBA. Thirty-four donations to date have been made by individuals and local bar associations. The IndianaDocs Committee creates and/or reviews practicerelated forms for inclusion in the IndianaDocs Program. IndianaDocs is a library of legal forms related to the practice of law in Indiana. This document assembly system allows members to save

time, effort and money in the production of repetitive documents and forms. The Leadership Development Academy Committee was established to empower and develop lawyers to be informed, committed and involved so that they may fill significant leadership roles in their local and state bar associations, in Indiana communities and organizations, and to serve as role models in matters of ethics and professionalism. The Pension & Benefit Law Committee has been established to assess interest in creating a Pension & Benefit Law Section. The Social Security Disability Law Committee has been established to assess interest in creating a Social Security Disability Law Section.

Correction n the May 2013 article, “Comment Sought on Proposed Rules,” at p. 8, one of the proposed rule changes was described in error. The correct description of the proposed rule change is as follows: “Acknowledgment of Oral Arguments – reduces the number of copies that parties must file of the Acknowledgment of Oral Argument.” We regret the error.

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Va n O l s o n L a w F i r m,

LLC

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Focused on Employee Stock Ownership Plans E. Van Olson • Van.Olson@vanolsonlaw.com • www.vanolsonlaw.com 8500 Keystone Crossing, Suite 540, Indianapolis, IN 46240 Office direct: 317.202.0443 • Mobile: 317.730.1116 Former large firm partner with 25-year ERISA practice, including extensive employee stock ownership plan “ESOP” experience, now focuses on the taxeffective transfer of business ownership interests through ESOPs. Will serve as counsel or co-counsel on all ESOP-related matters. Will also serve as co-counsel on ERISA fiduciary, tax-qualified retirement and executive compensation plan matters. RES GESTÆ • JUNE 2013

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Achievement award nominations sought Nominations due Aug. 16

T ATTENTION

he following awards will be presented at the State Bar’s Annual Meeting in French Lick in October. For more information and/or nomination forms, contact the ISBA at 317/639-5465 or 800/266-2581. Nomination forms will also be available as downloadable PDF files at the ISBA website, www.inbar.org.

CIVILITY AWARDS Sponsored by the Litigation Section The ISBA Litigation Section’s Civility Awards recognize an attorney and judge for outstanding civility and professionalism in their dealings with fellow judges, attorneys, parties, witnesses and the public. In addition, the Defense Trial Counsel of Indiana selects a plaintiff’s attorney, and the Indiana Trial Lawyers Association selects a defense attorney. Send your nominations to: Maryann Williams Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Maryann at mwilliams@inbar.org.

GALE M. PHELPS AWARD Sponsored by the Family & Juvenile Law Section The Gale M. Phelps Award is named in memory of Gale M. Phelps, a former chair of the ISBA Family & Juvenile Law Section and one of the most active members of the section, who passed away in 2003. Factors considered in the selection of the recipient reflect Gale’s contributions to the family law legal community and include: • Exceptional service to the profession: unsolicited mentoring to new attorneys, reaching out to other lawyers, and working with attorneys on an individualized basis; 12

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• Highest level of competence/ improving the profession: reviewing legislation and shaping family law policies, contributing to educational seminars, serving in leadership positions for legal and nonlegal organizations; • Raising the level of professionalism and civility in domestic relations matters: going beyond the client’s basic needs, maintaining respect for the court system and its participants; and • High moral character and ethical standards

clients, the profession and the community. There is no longevity requirement. County bar associations throughout the state will be contacted and encouraged to nominate outstanding solo and small firm lawyers from their individual counties. Those making nominations are encouraged to submit up to five letters in support of the nomination, but no more than five letters will be accepted. The intent is to avoid turning the selection into a letter-writing or popularity contest.

Send your nominations to:

Send your nominations to:

Maryann Williams Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204

Maryann Williams Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204

For more information, contact Maryann at mwilliams@inbar.org.

For more information, contact Maryann at mwilliams@inbar.org.

RABB EMISON AWARDS

OUTSTANDING JUDGE AWARD

Sponsored by the Diversity Committee The Rabb Emison Awards, named for its first recipient in the individual category, recognizes an individual and an organization that have demonstrated a commitment to promote diversity and/or equality in the legal profession and in the membership of the Indiana State Bar Association. Send your nominations to: Christina Fisher Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Christina at cfisher@inbar.org.

GP HALL OF FAME Sponsored by the General Practice, Solo & Small Firm Section Nominees must practice as solo practitioners or in a small firm, and be members of the Indiana State Bar Association. The selection criteria emphasize contributions to

Sponsored by the Young Lawyers Section The ISBA Young Lawyers Section is accepting nominations for the 2013 Outstanding Judge Award. The criteria for the award are as follows: 1. The nominee provides substantial education or mentoring to young lawyers. 2. The nominee fosters civility among those attorneys who practice before the bench. 3. The nominee epitomizes the core values of our profession – honesty, competence and respect for the judicial system. 4. The nominee has a recognized reputation for providing service to the local community. Send your nomination to: Carissa Long Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204


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The names of those submitting nominations for consideration shall be kept confidential to avoid any appearance of impropriety. Only current judges are eligible for this award. For more information, contact Carissa at clong@inbar.org.

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

cially by his/her steadfast commitment, vision, courage and tenacity, which have resulted in substantial and lasting contributions to the Latino legal profession as well as the broader Latino community. The nominee must be a current ISBA member. Send your nomination to: Christina Fisher Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Christina at cfisher@inbar.org.

LIBERTY BELL AWARD Sponsored by the Young Lawyers Section The Liberty Bell Award celebrates community service that strengthens our system of freedom under law. Traditionally this award has been presented to nonlawyers who have rendered outstanding

service to their communities in any of the following areas: • promoting a better understanding of our Constitution and the Bill of Rights; • encouraging greater respect for the law and the courts; • stimulating a deeper sense of responsibility so that citizens recognize their duties as well as their rights; • contributing to the effective functioning of our institutions of government; • fostering a better understanding and appreciation of the rule of law. This is your opportunity to focus on a local community leader who may not receive public recognition of his or her accomplishments. To nominate an (continued on page 14)

Those making nominations are encouraged to submit letters of support. Send your nomination to: Cheri Harris Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Cheri at charris@inbar.org.

TRAILBLAZER/ABRIENDO CAMINOS AWARD Sponsored by the Latino Affairs Committee The Latino Affairs Committee’s Trailblazer/Abriendo Caminos Award recognizes the outstanding achievements, commitment and leadership of a lawyer that has paved the way for the advancement of other Latino attorneys and/or the Latino community. This award recipient will personify excellence in the profession, espeRES GESTÆ • JUNE 2013

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AWARDS continued from page 13 individual, please submit the nomination form and explain why you feel this person deserves the Liberty Bell Award. Send your nomination to:

advise, and we will honor your request. Send your nomination to: Carissa Long Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204

Carissa Long Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204

For more information, contact Carissa at clong@inbar.org.

For more information, contact Carissa at clong@inbar.org.

AFFILIATE MEMBER AWARD

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

law librarians or court administrators; • commitment to the Indiana State Bar Association; and • service not only to the legal community, but compassion and dedication to others by involvement and volunteer service to the community. Send your nomination to:

Sponsored by the Affiliate Membership Committee This award recognizes an affiliate member of the Indiana State Bar Association who has contributed to the legal profession. The selection committee will give primary consideration to nominees whose efforts offer evidence of distinctive service to the legal profession, in the areas of paralegalism, legal administration, law librarianship or court administration. The selection committee may also consider: • a nominee’s contributions in the areas of leadership, professional development and promotion of paralegals, legal administrators,

Susan Jacobs Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Susan at sjacobs@inbar.org.

DAVID HAMACHER PUBLIC SERVICE AWARD Sponsored by the Appellate Practice Section The ISBA Appellate Practice Section is soliciting nominations for the David Hamacher Public Service Award for 2013. Any lawyer or nonlawyer may be nominated. The criteria for this award are as follows: high moral character and ethical standards; service to the community; peacemaking qualities; person not necessarily a lawyer; award not gender specific. Send a written statement regarding why the nominee should be selected to:

Indiana’s Premier Special Needs Trust Trust I Established in 1988, Trust I helps families provide for the financial future of their loved ones without affecting eligibility for government benefits such as SSI, SSDI and Medicaid. Trust II Established in 1995, Trust II allows people with disabilities to fund their own trust, allowing them to maintain eligibility for government benefits. Over the past 25 years, nearly 5,000 people have enrolled in Trusts I and II. Trust I investments total over $30.5 million, and Trust II investments total over $14.5 million. Whether you are working with clients to develop an estate plan or you represent a client with a disability, The Arc Master Trust is here to help.

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RES GESTÆ • JUNE 2013

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Maryann Williams Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Maryann at mwilliams@inbar.org.

HON. VIOLA TALIAFERRO AWARD Sponsored by the Committee on Civil Rights of Children The Committee on Civil Rights of Children annually honors an individual who best exemplifies Judge Taliaferro’s courageous (continued on page 16)


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2013 RIA Federal Tax Handbook available he 2013 Thomson Reuters edition of the RIA Federal Tax Handbook (brought to you by the ISBA Taxation Section) is available in print. It is designed to answer tax questions and resolve tax problems that arise in everyday business and personal transactions. The handbook helps in preparing federal income tax returns and provides specific guidance to tax consequences of transactions occurring in 2013. The Handbook reflects all federal tax legislation passed by Congress to date. It also reflects other key developments (such as new regulations, rulings and revenue procedures) affecting the 2012 return and the 2013 tax year. See www.inbar.org for an order form or call 800/266-2581.

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continued from page 14 leadership in addressing the unmet legal needs of children and in raising the public’s awareness of these needs. Nominations for this award may be for an individual who is living or deceased. Send your nomination to: Paje Felts Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Paje at pfelts@inbar.org.

COMMUNITY SERVICE AWARD

THE RT OF PERSONAL SERVICE

©2013 The National Bank of Indianapolis

AWARDS

Member FDIC

Sponsored by the Service Committee The Community Service Award was established by the ISBA Service Committee, a project of the first ISBA Leadership Development Academy class. The Service Committee was formed by the class with an interest in advancing the nonlegal service work of lawyers in their communities and state. Factors considered in the selection of the recipient reflect the core values the Service Committee wishes to promote and include: 1. exceptional nonlegal service work in their respective community – this does not include pro bono work, which is recognized separately; 2. an embodiment of the core values of our legal profession; 3. promoting community involvement; and 4. helping in underserved areas – this includes providing service in lower-income areas, youth initiatives, the elderly and infirm, schools, and similar areas. Send your nomination to: Catheryne Pully Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Catheryne at cpully@inbar.org.


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Business supplies for a productive, efficient office he State Bar is proud to announce that its newest member benefit is Office360, one of the largest, fastest-growing, independently owned office products suppliers in the country, recognized last year by TriMega Purchasing Association as #1. Not only does Office360 provide competitive pricing on top supplies, but it also offers free, next-day delivery with no minimum order requirement – anywhere in the continental United States! “We find that as a local company we can really improve the level of service and also be the low-cost provider compared to the big three – Office Depot, OfficeMax and Staples – who have most of the business out there,” says Steve Nahmias, who owns and manages Office360 along with brothers Scott and Lenny. Many central Indiana law firms already enjoy Office360’s high-quality service and appreciate the personal touch Office360 brings. Service such as delivery of copy paper to specific office locations, customized website ordering systems, financial reporting and more is available to better manage a firm’s overall supply spend. Products offered include traditional office supplies, ink & toner, cleaning & breakroom supplies, and office furniture. Office360 is proud to partner with such firms as Bose McKinney & Evans, Scopelitis Garvin Light Hanson & Feary, Cohen & Malad, Campbell Kyle & Proffitt, and many more. Visit www.office3sixty.com/ offweb/login.aspx (user ID: ISBA; password: REG22555) and start saving today!

Report of the Nominating Committee of the Indiana State Bar Association

T

May 9, 2013 he Nominating Committee of the Indiana State Bar Association met in Indianapolis, Ind., in May and determined to submit the following candidates for election to the respective Association offices at the Annual Meeting of the Association Assembly to be held in French Lick, Ind., on Oct. 18, 2013.

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For Vice President ..................................................... Carol M. Adinamis, Carmel For the Board of Governors (term Oct. 18, 2013 through October 2015) District 1 ....…………………………………………... Scott E. Yahne, Munster District 4 ....…………………...………………… Martin E. Seifert, Fort Wayne District 5 ....………………………...………….. Candace D. Armstrong, Brook District 10 ....………………….…………….….. Wilford A. Hahn, Huntington District 11 ....……………………………………... Tonya J. Bond, Indianapolis District 11 ...………………..………...…..….... Terry W. Tolliver, Indianapolis Respectfully submitted by Sherrill Wm. Colvin, Fort Wayne, chair; Hon. Michael N. Pagano, Crown Point; Thomas W. Earhart, Warsaw; R. William Jonas Jr., South Bend; Karen R. Orr, Lafayette; Seamus P. Boyce, Noblesville; Holly M. Harvey, Bloomington; James P. Casey, Evansville; Mary E. Fondrisi, Jeffersonville; Amy K. Noe, Richmond; and Andrielle M. Metzel, Indianapolis.

Report of the Nominating Committee of the House of Delegates of the Indiana State Bar Association May 14, 2013 ursuant to the provisions of Section B(2) of Bylaw V of the Indiana State Bar Association, notice is hereby given to all members of the Association and to all members of the House of Delegates that the Nominating Committee of the House of Delegates of the Indiana State Bar Association nominates the following candidate:

P

Andrielle M. Metzel, Indianapolis Such candidate, if properly elected as Chair-Elect at the 2013 Annual House of Delegates meeting, will serve one year as a member of the Board of Governors in the capacity of Chair-Elect of the House, and will then assume the office of Chair at the close of the 2014 Annual Meeting, serving until the close of the 2015 Annual Meeting. Respectfully submitted by Carol M. Adinamis, Carmel, chair; Holly M. Harvey, Bloomington; Hon. Heather A. Welch, Indianapolis; Todd J. Meyer, Lebanon; and Andrew W. Hull, Indianapolis.

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By Bill Brooks

ASSOCIATION NEWS

Muscatatuck: a proving ground for character

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mid the gently rolling hills of southeastern Indiana, the Muscatatuck Urban Training Center offers very serious training opportunities for military and first-responders. But for visiting lawyers who are part of the second class of the Indiana State Bar Association’s Leadership Development Academy, Muscatatuck represents a Disney World of disaster scenarios. Forming the backdrop for the class’s fourth of five gatherings were a bombed-out parking garage, a rubbled office building, a flooded town, an eerily abandoned hospital, a train wreck and even an Afghan village complete with camel, alpaca sheep and goats. Media consultant And a shantytown and freelance writer Indianapolis, Ind. where paintballs were

fired among the lawyers in mock anger. But there was a serious element to the visit to Muscatatuck as well, voiced by people in uniform such as Brig. Gen. Brian Copes, Chief of the Joint Staff, Indiana National Guard. The training center, which is operated by the Indiana National Guard, offers full-immersion organizational experiences in disaster relief and urban warfare training. Copes talked about the rich tradition of the Indiana National Guard as well as current challenges. “We manage ourselves to make sure we’re doing the right things for the right reasons,” Copes told the young lawyers as he outlined the National Guard’s complex organizational chart, which was not unlike that of major corporations.

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He noted that the Indiana National Guard was the sixth largest among the 54 such state organizations – and by far the largest in terms of relation to the state’s population. “It takes a lot of work to maintain that strength,” he said. The sojourn to the 1,000-acre site near Butlerville also included a briefing on the Hoosier Youth ChalleNGe Academy, operated at Knightstown by the Indiana National Guard. The facility serves at-risk youth, placing them in a quasi-military environment, but on a completely voluntary basis. The young people spend 5-1/2 months in residence, then 12 months back in their own environment under a mentor’s guidance. “We’re trying to get them to grow both physically and mentally,” said Col. Wayne Hill (ret.), director. Visiting with four of those young people, both at the session and then during a lunch, provided real evidence that the academy can indeed produce results. That lunch wasn’t the only eventful meal. The night before, LDA classmates experienced an authentic Afghan dinner, complete with authentic Afghans, ex-patriots who converge upon Muscatatuck to serve as role players for the training of military and civilians headed to Afghanistan. Before they left their homeland, the Afghans’ job descriptions had included mayor, provincial official, industrial engineer and teacher. Several of the Afghans demonstrated their traditional dances, pulling the American visitors (which, in addition to the lawyers, included people who had completed training at Muscatatuck) on to the dance floor. Meanwhile, the diners sat on the floor, eating with their fingers a feast of lamb kebab and dishes such as Qabli Pulao, composed of basmati rice, carrots and raisins.


Photo by Vincent Morretino

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ISBA Leadership Development Academy II reports to duty at the Muscatatuck Urban Training Center in Butlerville, Ind., to learn the value of “setting your standards high enough for the real fight.” Creating the Muscatatuck facility has been a boon for the Indiana National Guard in many ways – including drawing customers from all across the nation. U.S. State Department personnel train here, as do all members of the Civilian Expeditionary Force headed to Afghanistan – about 500 a week. Police and fire department personnel, as well, visit for realistic training exercises. The experience is indeed immersive, with the scenario mimicking a “failed state.” The environment comes complete with exploding dumpsters, if needed, as well as sounds and smells piped in to enhance the realism. The idea is to get people ready for the real thing – in this case, war-torn Afghanistan.

your practice of law,” said Steve Satterlee, the center’s executive officer. “Professionalism, training, leadership, citizenship, stewardship – you heard that all in one person.” Lt. Col. Daniel Kozlowski of the Judge Advocate General’s Corps is the senior legal advisor for Muscatatuck as well as for Camp Atterbury, another National Guard facility. He outlined his early career as a civilian litigator while offering his own advice. “You learn more from your failures than your successes,” he said. “For the litigators among you, that’s not a shocking lesson.” Kozlowski, who stated the JAG Corps offered more opportunities for leadership than he found in the civilian world, said his General’s

advice is that “the scrimmage needs to be as hard as the game.” He said simulations must be complex and participants must embrace failure. “Otherwise, you’re not setting your standards high enough for the real fight.” Furthermore, Kozlowski said, “Your failure is going to show your character.” Leaders must not pass the blame to those under them. “When trouble comes, stand up and take full responsibility.” Quoting from his own “JAG Rules of Deployment,” Kozlowski added, “You’ve got to maintain a higher ethical standard than anybody else – because that’s the business we’re in.”

The lessons in leadership were palpable. “Everything the General said you can apply to yourself and RES GESTÆ • JUNE 2013

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By Michael Haffey

Navigating health care reform for the small employer

ATTENTION

H

ealth care reform will change the way small employers and their employees consume health insurance and other employee benefits. New options will be available, and determining which options are best for an employer to provide from a cost and tax perspective as well as guiding employees to find the right protection at the best price is at the heart of the new benefits paradigm. With Jan. 1, 2014 right around the corner as the date for full implementation of the major provisions of the Patient Protection & Affordable Care Act (also known as PPACA or Health Care Reform), small businesses need to understand the mandates and all of the options available to them. The online health insurance site ehealthinsurance.com interviewed more than 400 small businesses and learned that most are not ready to

navigate successfully nor comply with the new law. 70 percent either incorrectly believe or are not sure if they would be required to pay a tax or a penalty for not providing health insurance, and 78 percent said they were not familiar with health insurance exchanges and how they could impact their business.

So what is a small business to do? First, a couple of PPACA facts: Businesses with less than 50 fulltime equivalents (FTEs) – and make sure you calculate the total correctly including part-time, seasonal employees etc. – are not mandated to provide benefits (never have been) and, more importantly, will not be assessed a tax or penalty for not providing benefits. However, small businesses that do provide health insurance must

comply with the other mandates of PPACA, such as providing essential health benefits, preventative care, no pre-existing conditions, etc. But the bigger question for small business is: What is the best path for the future of providing benefits? That is a seriously loaded question! It all depends on your business philosophy and goals as they relate to compensation, employer-provided benefits, total rewards, how important providing benefits is in your market, and what are the demands of your workforce.

New resources available due to PPACA Subsidies available through the Health Insurance Exchanges are substantive. And for the first time in benefit history, employees, even high-earning employees, can receive premium subsidies and cost-sharing assistance to help them afford their healthcare costs. The chart on page 21 illustrates the types of subsidies and cost-sharing benefits available to employees. This chart assumes that the employees are not offered minimum value coverage from their employer at a reasonable cost. So this begs the question, does it make sense to cancel your group health plan if you are one of the approximately 50 percent of small businesses that still provides health insurance and instead decide to let your employees get their insurance (and possible subsidies) on the public exchange? Or should you maintain the status quo? This depends on several factors. First, most businesses will want to do the new math to determine, based on your group’s demographic makeup, what works best financially for them and their team. This will require the use of a new calculator tool called an ACA impact analysis tool. Only by using a comprehensive, fully integrated

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RES GESTÆ • JUNE 2013


RG 06.13_RG 09.05 6/19/13 9:15 AM Page 21

Income

$30,000

$50,000

$70,000

Dependents 1 2 3 4 5 1 2 3 4 5 1 2 3 4 5

% of Poverty Line 276% 204% 162% 134% * 114% * 459% 340% 270% 224% 191% 459% 475% 378% 313% 268%

Total Premium $ 4,500 $12,130 $12,130 $12,130 $12,130 $ 4,500 $12,130 $12,130 $12,130 $12,130 $ 4,500 $12,130 $12,130 $12,130 $12,130

% of Costs Covered 70% 73% 87% 94% 94% 70% 70% 70% 73% 87% 70% 70% 70% 70% 70%

Max Out-ofPocket Cost $2,975 $5,950 $3,927 $3,927 $3,927 $5,950 $7,854 $5,950 $5,950 $3,927 $5,950 $11,900 $7,854 $7,854 $5,950

Premium Subsidy $ 1,871 $10,212 $10,778 $11,212 $11,530 $0 $7,380 $7,835 $8,583 $9,187 $0 $0 $5,480 $6,650 $6,157

% of Prem Subsidized 41.6% 84.2% 88.9% 92.4% 95.1% 0.0% 60.8% 64.6% 70.8% 75.7% 0.0% 0.0% 45.2% 54.8% 50.8%

* May qualify for Medicaid depending on the state of the employee’s residence. Note: Final premium rates are not yet available. The rates used are based on preliminary information and likely to be updated and adjusted based on family composition.

calculator can a business determine the best financial path now and into the future for each employee and the business as a whole. Using a comprehensive calculator will allow employers to perform “what if” scenarios and identify alternative strategies to their employee total rewards program. The second key factor is your business’ approach toward compensation, benefits and total rewards. What are your business’ goals, what does your market call for, and how can you continue to attract and retain the best employees with the best total rewards package? Isn’t that why a business offers employerprovided benefits to begin with? Interestingly, the ehealthinsurance.com survey also showed that 68 percent of small businesses said they had no plans to drop their insurance plans.

Change brings opportunity Small businesses have a unique opportunity to take advantage of the new employee benefits/compensation paradigm and can successfully navigate this new world. This can be accomplished by utilizing the “best of the breed” technol-

ogy with all the supporting products and services, employer decision support tools, calculators and impact analysis predictors. Employee benefits advisors and their business partners need to provide employees with new tools to assist them in consuming the right insurance products. They need to provide a dashboard that helps the individual manage their benefits, understand their coverages, and access health care advocates to find low-cost, high-outcome providers in addition to wellness information. From this dashboard, employees will also be able to easily track deductibles, out-of-pocket maximums, and HSA and FSA balance information; pay providers; and access their electronic medical records. From a coverage standpoint, the small employer’s coverage options have increased as well. The calculator will help determine which coverage options are best. Medicaid, Medicare and Medicare Supplements, Public Exchanges (Marketplaces) with and without subsidy money, Private Exchanges (Comprehensive Marketplaces) with a defined contribution

approach to funding the plans as well as traditional health offerings will all be in the mix. Partnering with experienced and trusted advisors with the appropriate tools is the key to accomplishing your business goals in the new employee benefits world. Michael Haffey, CLU, mhaffey @bbindy.com, is an innovator and thought leader in employee benefits.

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By Suzanne S. Bellamy

Judge James Ellsworth Noland: Fairness was ‘essential’

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orn in LaGrange, Mo., on April 22, 1920, James Ellsworth Noland came into the world as a member of a large, politically active, Democratic family. When the farm depression hit in the 1920s, the Noland family, including James and his two sisters, moved to Roachdale, Ind., in 1923, where his father became the only dentist in town. Three years later, in 1926, the family moved again to Spencer, Ind., where they resided until 1934. Judge Noland grew up there during the depths of the Great Depression, delivering newspapers and remembering for years thereafter the difficulty he encountered in collecting the 12-cent fees from people who could not afford to pay even that meager amount. In 1934, the family packed up again and this time moved to Bloomington, Ind., where Judge Noland began high school. His leadership skills were recognized when he was elected president of his senior class at Bloomington High School and later president of the freshman honorary society, Phi Beta Sigma, at Indiana University, which he entered in 1938. In 1941, he began law school, but the Japanese attack on Pearl Harbor on Dec. 7, 1941, interrupted his schooling. Judge Noland learned of a reserve officers’ training program offered by the Harvard Graduate Business School where, upon completion of an accelerated master’s program in business administration, the graduates would qualify to become officers. Judge Noland was accepted at Harvard and completed the course as part of the last class to receive a full master’s degree Suzanne S. Bellamy before entering the Indianapolis, Ind. service in World ssbellamy@aol.com War II. After gradua-

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RES GESTÆ • JUNE 2013

tion in May 1943 and Officer Candidate School, he was assigned to the New Orleans Port of Embarkation where he stayed for about two years, attaining the rank of captain. Before leaving the Army in the spring of 1946, Judge Noland began a campaign for the Democratic nomination to Congress from his home district in Indiana. He narrowly won the primary, but was defeated in the general election by the incumbent congressman. Returning to law school in Bloomington, the judge received his J.D. in August 1948 and once again set out to win the Democratic primary for Congress. This time he was successful in both the primary and general election, becoming one of the youngest members of the U.S. House of Representatives. Sworn into the Indiana bar on Dec. 7, 1948, he went, as he put it, “from law school direct to the United States Congress.”1 Two years later, in 1950, Judge Noland’s bid for re-election to a second term in Congress proved unsuccessful. He and his family, now including a wife and three small children, made the decision to move to Indianapolis, where he entered the practice of law while remaining active in Democratic politics and serving in various local and state government positions. In 1966, Indiana’s two U.S. senators, Birch E. Bayh Jr. and R. Vance Hartke, jointly recommended him to fill a newly authorized fourth judgeship created by legislation to expand the United States District Court for the Southern District of Indiana. President Lyndon B. Johnson nominated James Noland to the federal bench on Oct. 6, 1966. He was confirmed by the Senate later that same month. In one of Judge Noland’s early significant cases, Banks v. Muncie Community Schools in 1969, an

injunction was sought, seeking to prohibit several actions thought to be inimical to the civil rights of students: the construction of a third high school in Muncie, which allegedly would have disrupted the racial balance in the two existing schools; the busing of elementary school students to schools not nearest their homes; and the use of Confederate symbols or other “racially or politically inflammable” symbols at Muncie Southside High School. In denying the injunction, Judge Noland found a lack of evidence of racial motivation by the school board in selecting a site for the new high school and the student busing system, noting, however, that future events might justify future judicial intervention. When Southside High School opened in 1962, the school board had permitted the students to choose the symbols to represent their school, and a theme was selected based on the “old South.” The plaintiffs claimed the Southern symbols chosen were offensive to black students and discouraged their participation in school activities. While Judge Noland found that plaintiffs had failed to establish any racial or political discrimination behind the school board’s “consistently applied policy,” he did admonish the board about the advisability of maintaining offensive symbols, urging school authorities “to bring about the elimination of school symbols which are offensive to a racial minority.”2 The Seventh Circuit Court of Appeals agreed with Judge Noland, affirming his decision. On April 20, 1979, the United States Auto Club (USAC) rejected the Indianapolis 500 entries of six racing teams affiliated with Championship Auto Racing Teams (CART), its upstart rival, claiming that the six were “not in good standing with USAC.” CART, the six teams, and their eight drivers


RG 06.13_RG 09.05 6/24/13 9:18 AM Page 23

Artist: Edmund Brucker, 1987

therefore commenced a lawsuit against USAC and the Indianapolis Motor Speedway (IMS), charging violations of the Sherman antitrust laws based on a conspiracy between USAC and the IMS, for which they sought a preliminary injunction prohibiting the exclusion of the six teams from the upcoming 500 race. The action was assigned to Judge Noland and played out in a highly charged and much publicized environment. Judge Noland initially allowed the eight individual drivers to remain as plaintiffs in the case despite USAC’s claim that the drivers lacked standing and were individually welcome to enter the race as parts of other teams. This claim seemed disingenuous to Judge Noland, however, since all eight were bound by contracts to their respective owners and could not drive in the race or at the Speedway unless with those owners. Judge Noland agreed with CART that the drivers were also proper plaintiffs as they had much to gain or lose by the outcome of the proceedings. A banner headline in The Indianapolis Star on May 6, 1979, proclaimed Judge Gives CART ‘Go Sign’ after Judge Noland ruled finally that the six teams and eight drivers from CART were eligible to participate in the 63rd running of the Indianapolis 500. Following three days of testimony, the Judge handed down his decision in 42 minutes, holding that the defendants’ action in excluding the teams was “too severe,” and reasoning that “if only CART entrants were excluded, the court might let monetary damages decide this matter. But because of the irreparable harm that could be suffered by these drivers – the keystones of these teams – there is no way the driver plaintiffs can sit out the Indianapolis 500.” He stressed that his decision “would preserve the status quo and serve the public interest.”3

After a series of eight closely timed bombings terrorized the residents of Speedway, Ind., in 1978, causing serious injury to two persons, Brett C. Kimberlin, a former Indianapolis health store owner and convicted drug smuggler, was charged with six of the bombings. Judge Noland presided over Kimberlin’s first trial in the fall of 1980. In resolving a motion to move the trial from Indianapolis due to extensive pretrial publicity, Judge Noland took over the questioning of the jurors himself in an effort to determine their states of mind, questioning each panelist in considerable detail. Ultimately, he rejected the defense motion, stating his belief that the passage of time since the 1978 bombings had softened the otherwise prejudicial impact of the publicity. The court also rejected another defense motion that sought to limit the testimony from government

witnesses, which had been obtained under hypnosis induced by police investigators. The prosecution was limited largely to a circumstantial case, while Kimberlin’s defense focused on alibi evidence. Following a 12-day trial, the sequestered jury deliberated 15-1/2 hours before convicting Kimberlin, but only on nine lesser charges, prompting Judge Noland to declare a mistrial on the bombing charges. Ultimately, three trials were required before Brett Kimberlin was convicted of the Speedway bombings themselves. In 1982, Judge Noland presided over the high-profile public corruption trial of Phillip E. Gutman, the former president pro tempore of the Indiana Senate, who was charged with joining in a conspiracy to extort $55,000 from the Indiana Railroad Association (IRA) between 1972 and 1976. Payments (continued on page 24) RES GESTÆ • JUNE 2013

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JUDGE NOLAND continued from page 23 had been funneled by Howard Odom, the IRA’s executive director, to another former senate leader, Martin K. Edwards, who allocated the money among himself, Gutman and one other in exchange for their assistance in securing the repeal of the Indiana “full crew” law, which required all train crews to include a fireman. Gutman characterized the money as a legitimate retainer for legal work. Shortly before trial was set to begin, both Odom and Edwards pled guilty, with Odom agreeing to testify against Gutman. Judge Noland faced several difficult procedural and evidentiary issues during Gutman’s trial. Two involved the mental state of Howard Odom, who had previously manifested signs of mental illness. Gutman’s counsel moved to have Odom examined by a psychiatrist before being permitted to testify, followed by a hearing on his competency to testify. Judge Noland denied both of these requests. As the Seventh Circuit noted in affirming these rulings, courts “are reluctant to open the doors to sanity hearings for witnesses.” Gutman’s counsel also sought a mistrial after discovering that several jurors had learned the real reasons for Edwards’ nonappearance at the trial; again, the motion was denied. The judge did excuse those jurors who said they could not consider Gutman’s case independently of Edwards’ case. These decisions were upheld on appeal, with the reviewing court crediting Judge Noland with successfully “creating an atmosphere in which jurors were unafraid to voice in open court doubts about their own impartiality.” After the jury returned its verdicts against Gutman, Judge Noland sentenced him to three years in prison and fined him $10,000.4 Near the end of Judge Noland’s judicial tenure, he gained interna24

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tional notoriety by a 1989 decision he handed down in a case watched closely by museum officials and antiquities dealers around the world. A suburban Indianapolis art dealer, Peg Goldberg, had acquired four 6th-century Byzantine mosaics removed from the ceiling of a church in northern Cyprus after 1976, for which she paid $1.1 million to a Turkish art seller. The mosaics were among a handful of surviving artifacts of Byzantine religious decorations with significant artistic, cultural, historic and spiritual value. Contending that the archbishop of Cyprus was the true owner of the church and all its contents, the Federal Republic of Cyprus and the Autocephalous Greek-Orthodox Church of Cyprus sued Goldberg to prevent the sale of the mosaics to the Getty Museum in Malibu, Calif., for $20 million. Goldberg maintained that she had purchased the mosaics in good faith, believing they were abandoned relics pulled from the ruins of the church, and that they were ripe for salvage under international conventions. One of Judge Noland’s biggest challenges in this case was to decide the choice of law issue. Because the sale of the mosaics was effectuated in Geneva, Goldberg argued that Swiss law should be applied, which protected buyers in good faith even if the seller turned out to be a thief. The church urged the court to apply Indiana law, holding Goldberg to a higher standard that dictates that a thief obtains no title to stolen goods. Judge Noland concluded that Switzerland had “an insignificant relationship to this suit, and because Indiana has greater contacts and a more significant relationship to this suit, the substantive law of the state of Indiana should apply to this case.” The question of Goldberg’s good faith and/or due diligence therefore

was irrelevant since “a thief cannot pass any right of ownership of stolen items to subsequent purchasers.” Since all parties agreed that the mosaics were stolen, under Indiana law, “Goldberg never obtained title to or right to possession of the mosaics.” Alternatively, Judge Noland considered what the outcome would be if Swiss law were applied and concluded that even if that had been the case, Goldberg would not have prevailed. He therefore ordered that possession of the mosaics, then stored in an Indianapolis vault, be handed over to the Autocephalous GreekOrthodox Church of Cyprus.5 The reaction to Judge Noland’s decision was widespread. Most observers applauded his ruling, which gave the mosaics back to the church. The New York Times ran the story about the ruling on its front page while Cyprus’ ambassador to the United States called the White House in Washington, D.C., to “express my joy and delight, and that of my country.” In Cyprus, the president of the Republic announced the decision at a public ceremony, causing the crowd of nearly 10,000 to break into prolonged strenuous applause. In affirming Judge Noland’s decision, the Seventh Circuit Court of Appeals wrote: “Indiana law controls every aspect of this case,” thus sidestepping a review of his alternative ruling under Swiss law. Judge Noland’s decision was hailed for its influence in allowing countries to seek to reclaim national art treasures that were bought and sold in the international black market. Judge Noland became chief judge of the U.S. District Court for the Southern District of Indiana in June 1984, serving in that role until he took senior status in early 1987. Those familiar with Judge Noland’s career find it difficult to label his judicial philosophy as either


conservative or liberal. He was no doubt the most conservative of the Democrats serving with him on the federal bench at the time, but he also was perhaps the most lenient in the scope of evidence he allowed to be adduced by the lawyers at trial. Evidencing his belief that fairness in the proceedings was key, Judge Noland once commented, “It’s essential to a fair trial that the judge or jury have the chance to know any background that may be relevant to the case, even if some would turn out to be irrelevant.” He promoted the importance of a defendant’s confidence in the fairness of the proceedings, whereby the accused always had the opportunity to tell his story “within [reasonable] limitations.”6 Tending to prefer overseeing civil cases to criminal cases, he was generally a lenient sentencer. His demeanor

in court was calm and courteous but always fully in charge. One attorney likened Judge Noland’s technique as “a fine example of the iron fist in the velvet glove.”7 Sadly, Judge Noland’s life ended quickly and prematurely in Indianapolis, following a brief illness, on Aug. 12, 1992, at the age of 72. An editorial in The Indianapolis Star extolled his many extraordinary qualities as a judge and his remarkable tenure of service to the judiciary and the country, noting: “He was patient, warm, kind, compassionate, considerate, clear thinking, wise and fair. … He will long be remembered in the hearts and minds of his colleagues and friends both as a good judge and a fine human being.”8 1. Hon. James E. Noland, interview by William C. Potter II, March 27, 1990, Indianapolis, Ind., transcript, Historical Society of the U.S.

District Court for the Southern District of Indiana, Indianapolis, Ind. 2. Banks v. Muncie Community Schools, 433 F.2d 292 (7th Cir. 1970), quoting Judge Noland’s unpublished decision. 3. Indianapolis Star, May 2, 3, 4, 5 and 6, 1979. 4. United States v. Gutman, 725 F.2d 417 (7th Cir. 1984), cert. denied, 469 U.S. 880 (1984); Indianapolis Star, Feb. 22, 23, 24, 25, 26 and 27, 1982; March 3, 4, 5, 6, 9, 10, 11 and 12, 1982. Judge Noland subsequently reduced the sentence to one year of executed time. 5. Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg, 717 F.Supp. 1374 (S.D. Ind. 1989); Indianapolis Star, May 31, June 1, 2, 3, 5, 6, 7 and Aug. 4, 1989. 6. Indianapolis Star, Aug. 13, 1978. 7. Id. 8. Indianapolis Star, Aug. 17, 1992.

Suzanne S. Bellamy, J.D., Indianapolis, is a researcher and writer. She is the author of Hoosier Justice at Nuremberg (2010), published by the Indiana Historical Society Press; a former editorial assistant on the Papers of Lew and Susan Wallace; and served as assistant general counsel of Anacomp, Inc.

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By Donald R. Lundberg

Usher considered: identity theft and unwelcome advances

ETHICS CURBSTONE

T

he Supreme Court’s recent decision in Matter of Usher, ___ N.E.2d ___ (Ind. 2013), www.in.gov/judiciary/ opinions/pdf/05171304per.pdf (May 17, 2013), has been the subject of considerable comment within and outside the bar. Briefly, the case is about a male law firm partner, the Respondent in the case, whose romantic interests were spurned by a former female summer intern. After leaving the law firm where they had worked together, the Respondent persistently and unsuccessfully tried to pursue a romantic relationship with the intern. The intern had done some acting in movies, and in one of them her character was shown topless (although a body double was used in the filming process).

The Respondent secured a clip of the semi-nude scene from the movie and used it in a campaign to discredit and humiliate the intern and to interfere with her prospects for being hired as an associate at the law firm where they had worked together. Among other things, he fabricated an email message that was falsely represented to be a chain of email communications among other lawyers commenting negatively upon how the intern’s movie role reflected adversely on the efforts of women to be viewed as respected members of the legal profession. The Respondent recruited his paralegal to email the fabricated email chain and the clip of the nude scene at a time when he was out of the country to 51 lawyers at many prominent firms in the Indianapolis legal community. Using a temporary email account, the paralegal Donald R. Lundberg created the false preBarnes & Thornburg LLP tense that the source Indianapolis, Ind. of the email was the

donald.lundberg@BTLaw.com 26

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managing partner of the large Indianapolis law firm where the partner and the intern had worked together during the summer.

Rule violations The Rules of Professional Conduct violations that the hearing officer and the Court found to be supported by the facts were: Rules 3.3(a)(1) (knowing false statements to a tribunal because of false representations made by the partner in discovery in a parallel civil case brought by the intern); 8.1(a) (knowing false statements of material fact to the Disciplinary Commission); 8.1(b) (leaving a known misapprehension of facts by the Disciplinary Commission uncorrected); 8.4(a) (violating the Rules through another – his paralegal); 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4(d) (conduct prejudicial to the administration of justice). The Court ordered the Respondent suspended for a period of no less than three years, with Justice David dissenting from the sanction and urging disbarment – which in Indiana is permanent removal from the bar with no opportunity for reinstatement.

Findings for Respondent The Disciplinary Commission also charged the Respondent with two other violations that the hearing officer and the Court found were not supported. I found one interesting aspect of the case to be the Court’s handling of these rejected violations, although I suspect the sanction would not have changed even if the Court had concluded that these violations were established. Like the story about the dog that didn’t bark, I will discuss the rule violations the Court decided were not established in the case.

Identity theft The first unsuccessful charge was that the Respondent violated Rule 8.4(b) by engaging in a criminal act reflecting adversely on his honesty, trustworthiness or fitness as a lawyer in other respects. The Commission alleged that the criminal act was engaging in the crime of identity deception under Indiana Code 35-43-5-3.5 – a C or D felony, depending on the circumstances. The hearing officer held that the charge failed because the Commission had not met its burden of proof “that the Respondent’s actions rose to a level of being criminal.” The Court deferred to the hearing officer’s conclusion. The reported decision does not explain the hearing officer’s reason for concluding that the Rule 8.4(b) charge failed. The elements of the crime of identity deception are knowingly or intentionally obtaining, possessing, transferring or using the identifying information of another person without the other person’s consent with intent to harm or defraud another person, assume another person’s identity, or profess to be another person. According to the factual findings in the case, the Respondent suggested to his former paralegal that the offending email should “appear to have originated from somebody with ‘clout’” at the firm where the partner and the intern had previously worked together. In fact, the hearing officer and the Court rejected the Respondent’s assertion that he had suggested that the paralegal use a “farcical name,” not the real name of a law firm partner. Acting within the parameters of the Respondent’s suggestion, it was apparently the paralegal’s choice, and not the Respondent’s specific direction, to select the name of the managing attorney of the law firm as the fictitious source of the email.


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We are left to speculate why the Rule 8.4(b) charge failed. The paralegal was clearly acting as the Respondent’s agent in creating a false email account in the name of a lawyer “with clout” at the law firm and causing an email message to be distributed from that account without the authorization of the lawyer whose name was used. Perhaps the failure of proof lay in the fact that the Respondent did not specify the individual the paralegal settled on as the person who was to be the purported source of the fictitious email. But that still doesn’t take into account that the Respondent’s conduct was clearly involved enough that one would expect him to be criminally culpable under the aiding, inducing or causing statute. IC 35-41-2-4.

den of proof on that charge. The Court’s reasoning was curt: “The evidence supports a finding that the email was motivated by personal anger at [the intern] in particular rather than by bias or prejudice against women in general.” Indiana is among a minority of states that has something like Rule 8.4(g) in its black-letter

professional conduct rules. In fact, the Tennessee Supreme Court recently rejected a bid to add similar language to its Rule 8.4. The ABA Model Rules of Professional Conduct have similar, but narrower, language contained within a comment to Rule 8.4 – not in the black-letter rule. (continued on page 28)

It should be noted that a lawyer does not have to be convicted of a crime for the lawyer to violate Rule 8.4(b). It is the criminal conduct, not the conviction of a crime, that is the violation. It is merely easier for the Commission to prove a Rule 8.4(b) violation when there is a criminal conviction because the higher standard of proof (beyond a reasonable doubt) in the criminal case will collaterally estop the Respondent from denying that there was criminal conduct under the lower standard of proof (clear and convincing evidence) in the lawyer discipline case.

Conduct manifesting bias or prejudice Second, the Commission charged the Respondent with violating Rule 8.4(g), which 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 … gender … .” The Court agreed with the hearing officer’s conclusion that the Commission did not meet its burRES GESTÆ • JUNE 2013

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ETHICS CURBSTONE continued from page 27 Indiana’s Rule 8.4(g) is more than symbolic – it has been enforced. See, e.g., Matter of Thomsen, 837 N.E.2d 1011 (Ind. 2005) (race); Matter of Campiti, 937 N.E.2d 340 (Ind. 2009) (socio-economic status and national origin); Matter of Kelley, 925 N.E.2d 1279 (Ind. 2009) (sexual orientation); Matter of McCarthy, 637 N.E.2d 340 (Ind. 2010) (race); and Matter of Dempsey, 986 N.E.2d 816 (Ind. 2013) (race and religion).

Actions in a professional capacity Note that the Court did not reject the Rule 8.4(g) charge because the Respondent was not acting in a professional capacity. The Respondent and the intern first became acquainted when she was a summer intern and he was a partner in the same law firm. The Court’s recitation of the facts of the case are not precise, but it appears that the Respondent did not pursue a romantic relationship with the intern by pressing beyond all reason and propriety until after he had left that law firm to become a part-

ner in another firm and after the intern had departed the firm for her third year of law school. This may have presented a factual basis (or not) for the Court to conclude that the Respondent was not acting in a professional capacity in pursuing the unwelcome romantic relationship with the intern. But that was not the reason the Court gave for declining to find a Rule 8.4(g) violation. I have previously suggested that the use of the words “professional capacity” in Rule 8.4(g) sweep more broadly than other rules that govern lawyer conduct occurring in the course of representing clients. See Lundberg, “Of Telephonic Homophobia and Pigeon-Hunting Misogyny: Some Thoughts on Lawyer Speech,” Vol. 53, No. 10 Res Gestae 22 (June 2010). While it is true that the Court in Usher did not make a positive finding that the Respondent engaged in the conduct at issue in a professional capacity, its decision to not rely on that reason as a basis for rejecting the Rule 8.4(g) claim suggests to me that the Court agrees

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that “professional capacity” is, indeed, broader than the more frequently occurring limiting language in the Rules of Professional Conduct: “in representing a client.” See, e.g., Rules 4.1, 4.2 and 4.4. What we don’t know from Usher is where the line between conduct in a professional versus personal capacity should be drawn. The Respondent’s conduct in Usher was very much tied up with his professional role as a lawyer. He only became acquainted with the intern because they worked together in a law firm for a summer. The most offensive conduct (the fabricated email and unwelcome romantic interest) occurred after the Respondent’s and the intern’s coworking relationship ended. It was a step or two removed from formally acting in his capacity as a lawyer, but still very much wrapped up in his identity as a lawyer. We will have to wait for another case to see where the Court draws that line.

Reading Title VII into Rule 8.4(g) I also speculated before in my previous column about Rule 8.4(g) about whether that rule, in effect, incorporated into the Rules of Professional Conduct the law of employment discrimination under Title VII of the Civil Rights Act of 1964 and similar statutes. The jury (well, in this case, the Supreme Court) is still out on that intriguing question. Usher did not present facts that would have called upon the Court to grapple with that question since the Respondent and the intern were no longer in the same workplace setting when the Respondent’s conduct devolved to pursuing an unwelcome romantic relationship. What is remarkable about the Court’s Usher decision is its rationale for deciding that the (continued on page 30)

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ETHICS CURBSTONE continued from page 28 Respondent’s conduct did not violate Rule 8.4(g): not because the Respondent was acting in some non-professional capacity, but because the Respondent’s motivation was anger at being spurned by a particular woman and not “bias or prejudice against women in general.” Given the Court’s reasoning, what if the Respondent’s conduct had taken place when he and the intern still worked in the same law firm? Persistent, unwanted romantic overtures by a male partner to a female summer intern would likely state a hostile work environment claim under Title VII, regardless of whether the partner discriminated against women in general. Does this mean that the Court’s test for the application of Rule 8.4(g) is that it is limited solely to conduct demonstrating bias or

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prejudice against women (or racial, ethnic or religious groups and other classes of individuals mentioned in the rule) “in general?” And does it mean that Rule 8.4(g) fails to reach hostile workplace conduct against an individual who is a member of a protected class for reasons not generalized to the entire protected class? In a typical hostile work environment case, where a superior makes unwelcome romantic advances to a subordinate, it might be difficult to prove that the conduct exhibited bias, prejudice or hostility to (as in this case) women in general, but that would not preclude a finding of liability under Title VII. We are left to speculate whether the Court believes there is daylight between Rule 8.4(g) and Title VII jurisprudence? Here, too, we will need to await further developments.

Creating non-discriminatory law firm culture Whether restricting the application of Rule 8.4(g) to prohibiting only categorical bias or prejudice is a good or a bad thing is up to you, dear readers. If my understanding of the Court’s reasoning in rejecting the Rule 8.4(g) charge in Usher is correct, the EEOC and not the Disciplinary Commission is where I would need to complain if I were a young, summer intern experiencing unwanted, but individualized, sexual harassment by a law firm partner. But let’s not even go there if we don’t have to. Law firms need robust, written policies to address discrimination and other hostile workplace situations. Equally important, they must reinforce those policies by creating a law firm


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culture where recipients of harassment feel safe to complain internally and know their complaints will be taken seriously. Law firm leaders need to be committed to hostilityfree workplaces and should be willing to take appropriate action even when the harasser is in a position of power. If firm leaders don’t have the backbone to enforce anti-discrimination policies, victims of workplace harassment will be justified in seeking relief elsewhere. If I’m wrong in my reading of Usher, that elsewhere might be the Disciplinary Commission.

Revisiting Canada in light of Snulligan Last month, I wrote at length about Matter of Canada, 986 N.E.2d 254 (Ind. 2013), and more or less concluded that the case stood, in part, for the proposition that the Court was not all that interested in getting into the weeds in figuring out how much money a flat-fee lawyer needs to refund to a client who discharges the lawyer before the case concludes. The ink was barely dry when the Court issued its disciplinary order in Matter of Snulligan, ___ N.E.2d ___ (Ind. 2013), www.in.gov/ judiciary/files/order-discipline2013-49s00-1301-di-55a.pdf (May 21, 2013). Wouldn’t you know it? The Court went right where I thought it had no appetite to go. The Snulligan and Canada facts were fairly close. The Respondent in Snulligan was hired to handle the defense of an A felony/C felony drug case for a flat fee of $12,000. She received $6,000 up front. There were several months of delay between the filing of the charge against the client and the client’s arrest. After the client was arrested, the client discharged the Respondent and asked for some money back.

The Respondent, who had not been keeping contemporaneous time records, recreated a statement of her time that supported a claim that she had earned the entire $6,000 and then some. Based on the evidence at the disciplinary hearing, the hearing officer was not impressed with the quality of the Respondent’s proof of the time she worked on the client’s case before he was arrested. The hearing officer thought that the value of the Respondent’s services was closer to $1,000 than the $6,715 claimed by the Respondent. The Court held that the Respondent’s fee and her receipt of half of it upfront was not unreasonable, so there was no violation of the unreasonable fee rule – Rule 1.5(a). But the Court held that it was a violation of Rule 1.16(d) when the Respondent kept the entire $6,000 after she was discharged. A key difference between Snulligan and Canada is that in Canada, the Respondent got the client a plea offer that was “similar” to the offer successor counsel was able to get. In Snulligan, successor counsel had a whole lot more work to do. Even so, on an estimated hourly fee basis, the Respondent in Canada received $500 per hour, whereas the Respondent in Snulligan claimed the fair value of her fees at a rate of $175 per hour. Why the difference in outcome? In Canada, the Respondent was credible in his claim that his work had secured a plea offer that was similar to the one the client later accepted through other counsel. In Snulligan, not only did the Respondent not get the client close to the goal line, she was also not credible in her attempt to justify the value of her work up to the time of being discharged.

What’s the lesson from these two cases? When you work on a flat-fee basis and either quit or get fired before the representation is concluded, don’t let your frustration with the client stand in the way of exercising sound judgment. Be meticulously fair in offering to refund some of the fee to the client. Get independent advice if your judgment is too clouded by emotion. If the client is still dissatisfied, I doubt the Commission or the Court will want to use the lawyer discipline process to second-guess a lawyer’s fairness and good faith in offering a refund.

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By D. Lucetta Pope and Ryan G. Milligan

Appellate civil case law update

RECENT DECISIONS 3/13

I

n March, the Indiana Supreme Court issued five opinions in civil matters and granted transfer in six civil cases. The Indiana Court of Appeals issued a total of 17 published opinions in civil matters, some of which are summarized below. Full text of all Indiana appellate court decisions rendered during March, 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.

SUPREME COURT Day laborers and the Wage Claims and Wage Payment Acts

A unanimous Indiana Supreme Court held that day laborers working for a labor service did not lack any “immediate expectation of possible future employment with the same employer” so as to place them within the scope of Indiana’s Wage Claims Act and its exclusive administrative review process; rather, the trial court had subjectmatter jurisdiction of claims for unpaid wages under the Wage Payment Act. Walczak D. Lucetta Pope v. Labor Works-For Faegre Baker Daniels LLP Wayne LLC, 2013 WL South Bend, Ind. 961629 (Mar. 13) lucetta.pope@FaegreBD.com (Massa, J.). Two Indiana statutes require employers to pay wages within certain time periods: the Wage Payment Act, which applies to current employees and those who either permanently or temRyan G. Milligan porarily “voluntarily Faegre Baker Daniels LLP leave [their] employSouth Bend, Ind. ment,” and the Wage ryan.milligan@FaegreBD.com Claims Act, which 32

RES GESTÆ • JUNE 2013

applies to employees who have been “separate[d] … from the payroll” or whose work was suspended as a result of an industrial dispute. On a day when she neither sought nor received work, a “day laborer” filed this putative class action against her employer labor service, seeking unpaid wages under the Wage Payment Act. The employer moved for “summary judgment,” arguing that the laborer’s claims arose under the Wage Claims Act, which, unlike the Wage Payment Act, created an administrative review process that deprived the trial court of jurisdiction. The trial court granted the employer’s motion, and the day laborer appealed. The Court of Appeals held that whether the day laborer was separated from the payroll by the employer within the meaning of the Wage Claims Act was a question of fact to be “resolved in the first instance by the administrative agency” (here, the Department of Labor) and remanded the case with instructions to dismiss. On transfer, the Indiana Supreme Court clarified that while styling its motion as one for summary judgment, the employer had moved to dismiss the case for lack of subject-matter jurisdiction under Trial Rule 12(B)(1); consequently, it would review factual findings (made without an evidentiary hearing) and legal conclusions de novo. Turning to the merits, the Court rejected the employer’s claim that the Department of Labor must determine jurisdiction, describing the underlying statutory construction issue as “squarely within the judicial bailiwick.” The Court then construed “separate[d] from the payroll” under the Wage Claims Act to mean having “no immediate expectation of possible future employment with the same employer.” Looking to other jurisdictions, the Court found the

legislature could reasonably subject the claims of discharged employees to administrative review because they were more likely motivated by animus. The Court went on to find the plaintiff day laborer outside the scope of the Wage Claims Act based on her realistic expectation of future work. Day laborers, the Court concluded, “are no less entitled to the statutory protections that the General Assembly has provided than any other Hoosier employees.” It reversed the dismissal of Wage Payment Act claims and remanded the case to the trial court.

Grandparent visitation rights A unanimous Court held that a grandparent visitation order that failed to adequately address four factors derived from the United States Supreme Court’s consideration of parental rights in Troxel v. Granville, 530 U.S. 57 (2000), infringed a parent’s fundamental right to make child-rearing decisions in In re Visitation of M.L.B., K.J.R. v. M.A.B., 2013 WL 850848 (Mar. 7) (Rush, J.). Mother and Father never married and ended their relationship a few months before the birth of their son in 2004. Paternity and support were established several years later, but Father never sought parenting time, was at times subject to a restraining order, and had no contact with his son beginning in 2007. By contrast, paternal Grandfather sought, and Mother allowed, frequent contact with the son on the condition, beginning in 2007, that Father not be present. In 2009, Stepfather initiated adoption proceedings. When Father contested the adoption, paternal Grandfather intervened to petition for a visitation order. Following a joint hearing in which Mother testified that she did not object to his continued visitation, the trial court ordered


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Grandfather visitations of one weekend per month, a 10-day summer vacation, and 10-hour visits on certain specified days, without restricting Father’s presence. The court terminated the Father’s parental rights the next day. Mother appealed the visitation order, and a divided panel of the Court of Appeals affirmed. On transfer, the Indiana Supreme Court recounted the history of grandparent rights in Indiana, observing that courts first recognized limited grandparent visitation rights in 1981 and that the legislature enacted the Grandparent’s Visitation Statute only one year later. That statute, amended to include children born outside marriage and recodified at Indiana Code §31-17-5, has remained largely unchanged. But as the Court further explained, the tension between statutory rights and the constitutional right of natural parents to direct the upbringing of their children drew the attention of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000). Based on principles adopted by the plurality in Troxel, the Indiana Court of Appeals subsequently articulated four factors that a grandparent visitation order “should address,” i.e., (1) that fit parents’ decisions about visitation are rebuttably presumed to promote the child’s best interests; (2) that such decisions warrant special weight; (3) that “some weight” attaches to whether visitation has merely been limited or would extinguish the grandparent relationship; and (4) whether the grandparent has shown visitation to be in the best interests of the child. In 2009, the Court of Appeals declared consideration of the four factors mandatory. Turning to the visitation order itself, the Court found no indication the trial court had considered

the first two factors, describing those omissions as sufficient, of themselves, to make its order unconstitutional. The Court further found that by ordering visitation lacking any limitation on the Father’s presence and “far exceed[ing] the parties’ earlier pattern” without making supporting findings – without, for example, determining why those limits were

unreasonable or how the change would affect the child – the trial court infringed on a parent’s fundamental right to make child-rearing decisions. Concluding that these insufficiencies made the trial order voidable rather than void, the Court remanded the case for entry of new findings and conclusions (continued on page 34)

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Insurance coverage exclusion for individuals in the ‘care’ of hotel A child molested while spending the night in a hotel room rented to his friend’s mother was in the hotel’s “care,” the Indiana Supreme Court held, for purposes of an insurance policy that excluded coverage for acts occurring when the victim was in the “care, custody or control” of an insured. Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co., 2013 WL 830920 (Mar. 6) (David, J.). A young hotel guest sued the hotel, franchisor and others after being molested by an off-duty hotel employee. The hotel’s insurer filed suit, seeking a declaratory judgment that its policy did not provide coverage or a duty to defend. The trial

court granted summary judgment to the insurer, and the franchisor appealed. Finding a genuine question of fact as to whether the policy excluded coverage, the Court of Appeals reversed – and on rehearing clarified that its reversal applied only to the franchisor as the sole defendant to file a notice of appeal. On transfer, the Indiana Supreme Court examined whether the molestation fell within a coverage exclusion for acts occurring when the victim was in the “care, custody or control” of an insured. Applying the usual and common meaning of the phrase, the Court found no indication that the child, while staying with a friend’s mother, was in the hotel’s “custody”; and lacking any record evidence on hotel rules, the Court declined to speculate that the child was under the hotel’s “control.” As a matter of

law, however, the Court found the record sufficient to place the child in the hotel’s “care”: the child was molested while a guest of the hotel, while in a room rented to the mother of his friend, and while behind a door locked by an electronic key provided by the hotel. Further, the hotel owed the child, as at least the equivalent of a business invitee, a duty of care. That the child was under the care of his friend’s mother did not, Justice David explained, mean he could not also be under the hotel’s care. The Court affirmed the trial court grant of summary judgment. Chief Justice Dickson concurred, writing separately to assert that the duty of care owed hotel guests as business invitees supplies the proper understanding of “care.” Dissenting, Justice Rucker wrote that whether the franchisor engaged in the “function of watching, guarding, or overseeing” the child remained a question of fact.

Rescission of insurance contract and offer to return premiums The Indiana Supreme Court held that an insurer need not return the insureds’ premiums after rescinding the policy for fraud if the claim paid by the insurer exceeded the premiums paid by the insureds. Dodd v. American Family Mut. Ins. Co., 2013 WL 812385 (Mar. 5) (Dickson, C.J.). After discovering that the insured homeowners had failed to disclose previous fire losses on their insurance application, the insurance company denied their claim arising from a house fire and voided their policy. The homeowners sued, claiming breach of contract and intentional infliction of emotional distress. The trial court granted summary judgment for the insurance company on both claims. The homeowners appealed on the grounds that the insurance 34

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company had failed to return their premiums. Months later, the insurance company successfully moved to interplead all of the collected premiums. The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings on the breach of contract claim. Reviewing the summary judgment, the Indiana Supreme Court acknowledged that an insurer must offer to return premiums within a reasonable time after discovering a fraud or waive the alleged fraud. The Court noted, however, that the homeowners failed to make or support this argument in opposing the insurance company’s motion for summary judgment – first raising the issue in their motion to correct error. The Court also noted that a tender is not necessary where, as the designated evidence established, the claim paid by the insurance company exceeded the premiums paid by the insureds. Consequently, the Court affirmed the trial court’s grant of summary judgment and directed the trial court to release and return tendered premiums to the insurance company.

private schools instead of the system of common schools violated multiple provisions of the Indiana Constitution. Two parents intending to use the voucher program intervened to join the defendants. On cross motions for summary judgment, the trial court granted judgment in favor of the defendants. The plaintiffs appealed, and the defendants filed a joint motion

to transfer jurisdiction to the Supreme Court. The Supreme Court granted transfer, emphasizing that the policy merits of the voucher program were not germane to the issues before it and that the “desirability and efficacy of school choice are matters to be resolved through the (continued on page 36)

Constitutionality of Choice Scholarship Program In a unanimous decision, the Indiana Supreme Court upheld Indiana’s Choice Scholarship Program, Ind. Code §§ 20-51-4-1 et seq., against challenges under three separate provisions of the Indiana Constitution. Meredith v. Pence, 984 N.E.2d 1213 (Mar. 26) (Dickson, C.J.). Indiana’s Choice Scholarship Program provides vouchers to eligible parents for use in sending their children to private schools. Following its creation by statute, several taxpayers brought an action against state officials, contending that using public funds to pay for the teaching of religion and to fund RES GESTÆ • JUNE 2013

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RECENT DECISIONS 3/13 continued from page 35 political process.” Turning to the merits, the Court first addressed Article 8, Section 1, which directs the legislature to provide “for a general and uniform system of Common Schools.” The plaintiffs argued that this provision prohibits the legislature from providing education by any other means. The Court found, however, that Article 8, Section 1 confers two distinct duties on the legislature – to encourage moral, intellectual, scientific and agricultural improvement and to provide a system of common schools without tuition. It reasoned that because these duties are distinct, the legislature fulfilled its constitutional duties by maintaining a system of common schools, even if encouraging improvement diverts resources from that system.

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The Court next examined Article 1, Section 4, which provides that “no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.” The plaintiffs contended that using general tax revenues for payment of tuition at private, religiously affiliated schools amounted to compelling support of religious entities. Rejecting this argument, the Court held that extending Section 4 to limit expenditures, rather than prohibit government compulsion of individuals, would improperly expand that section. The Court last turned to Article 1, Section 6, which prohibits money from being “drawn from the treasury, for the benefit of any religious or theological institution.” It determined that a government program does not violate Section 6

unless the expenditure directly benefits the institution. Because “no funds may be dispersed to any program-eligible school without the private, independent selection by the parents of a program-eligible student,” the Court concluded that the direct beneficiaries of the program were lower-income Indiana families with school-age children rather than program-eligible schools,” consistent with the requirements of Section 6. The Court also held that the Section 6 prohibition against government expenditures to benefit religious or theological institutions does not apply to schools. The Court held that Section 6 was “not intended to, nor does it now, apply to preclude government expenditures for functions, programs, and institutions providing primary and secondary education” even when it includes a religious component.


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It consequently affirmed the judgment of the trial court.

COURT OF APPEALS Neighborhood association and development of easement An easement giving nonwaterfront landowners in a housing development access to public land surrounding a reservoir was intended to create access to the reservoir itself so that the homeowners’ association did not violate its purpose or bylaws by spending funds to clear a path to the water. Bay Colony Civil Corp. v. Pear Gasper Trust, 2013 WL 937594 (Mar. 11) (Shepard, Sr. J.). Two waterfront lot owners in a private housing development, both of whom owned private boat docks, sued the homeowners’ association to prevent it from using an easement to create reservoir access for other lot owners. On cross-motions for partial summary judgment, the trial court held that the easement granted access to public land surrounding the reservoir but not the reservoir itself and enjoined nonwaterfront lot owners from using the easement. The trial court also held that the association violated its bylaws by spending funds to clear a path through the easement and across the public reservoir frontage, ordering the land restored to its original condition. Reviewing the plat and covenant, the Court of Appeals found the easement intended not merely to allow lot owners to “gaze upon the shore and the water” but to reach the water itself. The court also reasoned that giving residents a safer way to reach the water fell within the association’s purpose of promoting residents’ health and safety and within general bylaw provisions allowing the association to advance causes advantageous to its members. The court reversed the trial court’s grant of summary judgment and ordered

the trial court to grant the association’s cross-motion for partial summary judgment.

Adequate service in small claims action Service directed to the codefendant owner and property manager of a limited liability company was reasonably calculated to inform the company that a small claims action had been instituted against it. KOA Properties, LLC v. Matheison, 2013 WL 865328 (Mar. 8) (Friedlander, J.) A limited liability company appealed the denial of its motion to set aside the default judgment in a small claims action against it. Before addressing the merits, the Court of Appeals summarily rejected the company’s argument that the trial court had abused its discretion by appointing pro se appellate counsel in a hearing preceding any

application for counsel, citing Comment 4 to Rule 2.2 of the Code of Judicial Conduct and noting the absence of any cognizable harm. The court also rejected the company’s challenge to the sufficiency of plaintiff’s evidence at the default hearing, finding the company had waived its argument by not making it below. The court then turned to the company’s remaining argument: that the trial court lacked personal jurisdiction over the company because it was not separately listed on the notice of claim or served separately from its owner and property manager, also named as a defendant. Noting that separate service upon both the individual and the company would have been sent to the same address and directed to the same person, it found service reasonably calculated to inform the company that a small (continued on page 38)

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RECENT DECISIONS 3/13 continued from page 37 claims action had been instituted against it. The court affirmed the judgment of the trial court.

Public bidding and Indiana Antitrust Act A school corporation could not avoid pubic bidding requirements by renovating an administrative building through a private, not-forprofit foundation. Alva Electric, Inc. v. Evansville Vanderburgh School Corp., 2013 WL 823315 (Mar. 6) (Kirsch, J.) On behalf of all similarly situated district taxpayers, eight contractors sued a school corporation and not-for-profit, education-promoting foundation for declaratory judgment and injunctive relief. The contractors alleged that renovations of an administrative building constituted a public work project subject to public bidding laws and that the six related contracts – including agreements by which the school corporation conveyed the building to the foundation for “one dollar,” the foundation contracted with a builder to perform renovations, the foundation executed a promissory

note requiring five yearly installment payments to the builder, and the school corporation entered a contract to repurchase the building through installment payments identical to the foundation’s obligations under the note – violated Indiana’s Antitrust Act. On crossmotions for summary judgment, the trial court ruled in favor of the school corporation and foundation, and the contractors appealed. Observing that the renovations had been completed, the Court of Appeals preliminarily found that even if technically moot, the controversy raised matters of great public interest likely to recur, placing it within a public interest exception to the general rule that courts will not review moot claims. Reaching the merits, the court observed that the legislature had created a comprehensive statutory scheme that allowed the school corporation to renovate either through the Public Work Statute, subject to that statute’s public bidding and other requirements, or through statutory provisions authorizing school corporations to enter lease-

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purchase agreements with building corporations formed solely for that purpose, subject to all applicable provisions of Indiana Code chapter 20-47-2. Noting further that the legislature requires a school corporation to exercise its power in the manner specified by statute where such specifications exist, the court found that the school corporation had failed to comply with either specified means of funding renovations and thereby evaded public scrutiny and input. It concluded that the six contracts formed a single, integrated project that lacked authorization and violated the public bidding laws. Because the trial court based its antitrust ruling on the contrary finding that no public bidding law violation occurred, the court reversed and remanded the case for further proceedings consistent with its decision. In his dissent, Judge Friedlander concluded none of the individual contracts were unlawful and that money paid by the school corporation to the foundation did not constitute a “public fund” within the meaning of the statute.

The Home Rule Act Indiana’s Home Rule Act did not prohibit a local government from abolishing its parks and recreation department where no rule of law prohibited it from doing so and dissolution of the department did not amount to imposing duties on another political subdivision. Town of Cedar Lake v. Alessia, 985 N.E.2d 55 (Mar. 21) (Najam, J.) Cedar Lake’s town council passed an ordinance repealing the code that established the town’s parks and recreation department and giving the council authority over parks and recreation. The displaced members of the parks board filed a declaratory judgment action against the town, asserting that the ordinance was improper and beyond the power of the council.


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On cross-motions for summary judgment, the trial court ruled in favor of the park board members, holding that the council acted beyond the scope of its statutory authority. Declaratory judgment was entered reinstating the park board members. The town appealed, and the Court of Appeals reversed, holding that the council’s action was permissible under Indiana’s Home Rule Act. The court observed that under the Act, a local unit of government is presumed to possess broad powers unless the Indiana Constitution or a statute expressly denies a power or grants it to another political subdivision. It reasoned that the council did not need express statutory authorization to abolish the parks board because any act that is not prohibited is allowed. The court also found that abolishing the board did not “impos[e] duties on another political subdivision” because the council dissolved the department rather than assigning it obligatory tasks and functions. Finding the town had acted within its authority, the court concluded that park board members were not entitled to reinstatement or other injunctive relief.

her when it arrived at a rational determination following a multiple-step appeals process. Chang v. Purdue Univ., 985 N.E.2d 35 (Mar. 19) (Friedlander, J.). The plaintiff student was dismissed from nursing school after being placed on academic probation for failing her clinical course and being involved in multiple confrontations with other students. The student unsuccessfully appealed the decision to two separate appeals committees and to Indiana University-Purdue University Fort Wayne’s chancellor. After exhausting her appeals, the student filed a six-count action against the university and several other parties, alleging, among other things, violation of her contractual and due process rights. On cross motions for summary judgment, the court entered judgment in favor of the defendants on the student’s due process claims. Surviving summary judgment, her breach

of contract claim was rejected by a jury and by the court in her motion for a directed verdict. The student appealed. Acknowledging the contractual nature of the student-university relationship, the court found literal adherence to an institution’s internal rules unnecessary when dismissal rests on academic or professional standards and is not arbitrary. It concluded that the student had failed to designate evidence that the university acted arbitrarily, capriciously or in bad faith when arriving at its dismissal decision. Rather, the university made extensive deliberations and gave the student multiple opportunities to explain her behavior through the appeals process. For the same reasons, the court found the evidence sufficient to support the jury’s verdict against the student and that the trial court did not err (continued on page 40)

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RECENT DECISIONS 3/13 continued from page 39 in denying her motion for directed verdict. The court also held that the student’s meaningful post-deprivation remedies foreclosed her due process challenges under both state and federal law, even if she had a federally protected right in her continued education. Rejecting the student’s remaining challenges to the judgment, the Court of Appeals affirmed.

TRANSFER ORDERS The Indiana Supreme Court’s transfer disposition lists can be found at www.in.gov/judiciary/ opinions/transfers/index.html: • American Cold Storage v. City of Boonville, 977 N.E.2d 19 (Ind. Ct. App. 2012) (whether trial court erred in dismissing annexation remonstrance for lack of standing when it individually counted multiple state-owned, tax-exempt parcels comprising a state road for the

purposes of determining the total number of parcels in the proposed annexation territory rather than considering it a single parcel), on the March 8 transfer list. • Yost v. Wabash College, 976 N.E.2d 724 (Ind. Ct. App. 2012) (whether trial court properly granted summary judgment in favor of defendant college and fraternity in negligence action related to injuries from alleged hazing incident), on the March 8 transfer list. • In re the Matter of the Adoption of Minor Children C.B.M. and C.R.M., 979 N.E.2d 174 (Ind. Ct. App. 2012) (whether trial court’s denial of birth mother’s petition to set aside adoption on basis that state’s consent to adoption of children during pendency of mother’s appeal of a termination order without providing notice to her was arbitrary and capricious), on the March 8 transfer list.

• Johnson v. Johnson, 979 N.E.2d 718 (Ind. Ct. App. 2012) (whether trial court properly modified Father’s financial obligations and parenting time, determined the uninsured health-care expenses he owed, and declined to modify an agreement between the divorced parents addressing college expenses), on the March 15 transfer list. • Mitchell v. 10th and The Bypass, LLC, 973 N.E.2d 606 (Ind. Ct. App. 2012) (whether trial court had authority to consider new evidence and revise interlocutory summary judgment and whether fact question precluded summary judgment as to individual’s personal liability under the responsible corporate officer doctrine), on the March 28 transfer list. • Justice v. American Family Mut. Ins. Co., 971 N.E.2d 1236 (Ind. Ct. App. 2012) (whether automobile insurance policy required the insured’s damages or the policy’s underinsured motorist liability limits to be reduced by the worker’s compensation benefits that the insured received following his accident with an underinsured motorist), on the March 28 transfer list. D. Lucetta Pope of Faegre Baker Daniels’ South Bend office represents large corporations, small businesses, government bodies and other entities in civil litigation, focusing on class actions and appeals. She is a graduate of Princeton University and Stanford Law School. Contact Lucetta at 574/239-1904. Ryan G. Milligan of Faegre Baker Daniels’ South Bend office is a member of both its litigation & advocacy and finance & restructuring groups. While attending Notre Dame Law School, he served as an extern for Chief Judge Robert Miller Jr. in the U.S. District Court for the Northern District of Indiana. Prior to joining the firm, Ryan spent several years as president of a small business that received national recognition as one of the industry’s 100 best operations. Contact Ryan at 574/239-1905.

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By Jack Kenney

Probation/parole conditions, other holdings

I

Aggravating sentences based on elements of offenses dismissed pursuant to guilty plea A trial court cannot aggravate a sentence in order to compensate for his or her disagreement with a jury verdict. Hammons v. State, 493 N.E.2d 1250 (Ind. 1986). But after Bethea v. State, 983 N.E.2d 1134 (Ind. 2013), judges can now aggravate sentences using elements or facts from charges that are dismissed pursuant to plea agreements. In so holding, the Indiana Supreme Court overruled a long line of cases applying Hammons to guilty pleas. A guilty plea is a contract between the parties, and unless the plea agreement limits what evidence can be presented as aggravators or mitigators at sentencing, the trial judge “may consider all evidence properly before him.” Bethea, 983 N.E.2d at 1146. In this case, the trial court’s use of the victim’s injury as an aggravating factor was proper even though the injury was an element of one of the charges that was dismissed pursuant to Bethea’s plea agreement.

Defendant did not waive illegal consecutive sentence claim In Crider v. State, 984 N.E.2d 618 (Ind. 2013), the Indiana Supreme Court held that a waiver of the right to appeal contained in a plea agreement is unenforceable where the sentence imposed is contrary to law and the defendant did not bargain for the sentence. Absent due process concerns to the

contrary, when a defendant explicitly agrees to a particular sentence or a specific method of imposition of sentences, whether or not the sentence or method is authorized by law, he cannot later appeal such sentence on the ground that it is illegal. See Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004). But in this case, the plea agreement Crider entered into did not provide for an illegal sentence, so Crider “was entitled to presume that trial court would sentence him in accordance with the law. Crider’s waiver of appeal in his plea agreement therefore applied only to sentences imposed in accordance with the law. Because the law does not permit the imposition of consecutive habitual offender sentences and Crider did not agree to consecutive habitual offender enhancements, his waiver of appeal is thus invalid and his habitual offender sentences must be ordered to run concurrently.” Crider, 984 N.E.2d at 625.

Self-incrimination – prosecutor cannot request use immunity before filing charges Where no charges have been filed and no grand jury has been convened, a prosecutor may subpoena witnesses pursuant to Ind. Code §33-39-1-4. However, if those witnesses invoke their constitutional right against self-incrimination, the prosecutor cannot petition for use immunity and compel them to testify without first filing charges or convening a grand jury. See In re S.H., 984 N.E.2d 630 (Ind. 2013). In S.H., the Supreme Court disapproved of any contradictory language in In re Order for Indiana Bell Telephone to Disclose Records, 274 Ind. 131, 409 N.E.2d 1089 (1980), which involved a subpoena duces tecum to a non-party, not the target of the prosecutor’s investigation. Id. at 636.

In this case, soon after S.C. gave birth at home, the father (S.H.) took S.C. and the infant to the hospital because S.C. was bleeding and the infant had multiple puncture wounds. Id. at 632. The prosecutor petitioned for subpoenas to compel the parents to testify about the circumstances of the infant’s birth, but the trial court granted the parents’ motion to quash the subpoenas on Fifth Amendment grounds. The trial court then erroneously granted the State’s request to grant use immunity to the parents and ordered them to testify. Id. The Supreme Court reversed the trial court’s ruling and remanded for further proceedings.

Probation/parole conditions – social networking

CRIMINAL JUSTICE NOTES 3/13

n March, the Indiana Supreme Court issued opinions in three criminal cases, while the Court of Appeals addressed probation and parole Internet restrictions, warrantless use of parcel wires, and ineffective assistance of counsel claims.

In Harris v. State, 985 N.E.2d 767 (Ind. Ct. App. 2013), the Court of Appeals held that Ind. Code §118-8-8(a)(7), which requires disclosure of email addresses, instant messaging and chat room user names that the sex offender registrant uses or intends to use, does not impose a burden on registrant’s First Amendment freedom to speak anonymously and does not contravene his right to free expression as guaranteed by Article 1, Section 9 of the Indiana Constitution. This registration requirement does not restrict a defendant’s ability to use email, “nor does it limit his use of social networking websites, instant messaging or chat room platforms.” Id. at 782. However, the court also held that Ind. Code §35-42-4-12, which prohibits registered sex offenders from using social networking websites, instant messaging (continued on page 42)

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

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CRIMINAL JUSTICE NOTES 3/13 continued from page 41 services or chat programs that the offender knows allows a person who is less than 18 years of age to access or use the website or program, is unconstitutional as applied to Harris, who is a sexually violent predator. Though content neutral, the statute is not narrowly tailored to serve the State’s legitimate

interest in protecting children from harmful online communications. And the State already criminalized illicit expression with minors under child solicitation and inappropriate communication with child statutes. See Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir. 2013). The State failed

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to show that the social networking medium possessed qualities allowing the Court to conclude that the substantive evil contemplated by Ind. Code §35-42-4-12 was created by the medium itself, which would justify a complete ban on expression. Harris, 985 N.E.2d at 880. The court reversed Harris’ sex offender Internet offense but affirmed his conviction for failure to register as a sex offender. Judge Crone, concurring in result with a separate opinion, noted that in Doe, the Seventh Circuit found Ind. Code §35-42-4-12 unconstitutional on its face and the protections of Indiana Constitution Article 1, Section 9 “are at least equal to if not greater than those of the First Amendment.” Id. at 785-86.

Warrantless use of parcel wire inside home violated Fourth Amendment In State v. Lagrone, 985 N.E.2d 66 (Ind. Ct. App. 2013), police violated the Fourth Amendment protections against unreasonable search and seizure when they used a parcel wire to monitor a package of marijuana once Lagrone had carried it into his home. Due to that violation, warrantless entry into Lagrone’s home was not justified under the exigent circumstances exception to the Fourth Amendment because under Kentucky v. King, 131 S.Ct. 1849 (2011), such entry to prevent destruction of evidence is allowed only where the police did not create the exigency by engaging in conduct that violates the Fourth Amendment. The installation of the GPS device and the parcel wire into the package Lagrone picked up from a hotel did not violate the Fourth Amendment because any privacy interest Lagrone had in the package was lost when United Parcel Service (UPS) opened the package on its

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premises. State v. Lagrone, 985 N.E.2d at 73 (citing Illinois v. Andreas, 463 U.S. 765 (1983)). Nor did police monitoring of the GPS device to track the package en route to Lagrone’s home violate the Fourth Amendment because officers also tracked Lagrone on the highway visually. Id. But the monitoring of the parcel wire to determine when the package was opened constituted a search of Lagrone’s home. Id. at 74 (United States v. Karo, 468 U.S. 705 (1984)). And information obtained from the parcel wire after the package was inside Lagrone’s home, i.e., that the package had been opened, could not have been observed from outside the home. As such, the receipt of that information via the parcel wire without a warrant violated Lagrone’s Fourth Amendment rights. Id. at 75. And under King the police cannot use the exigent

circumstances exception to justify a forced warrantless entry into the home, based on the electronic signal from the parcel wire located inside the home, without having first obtained a warrant.” Id. at 75-76.

Ineffective assistance of counsel – failure to object to 404(b) evidence & incorrect advice re: maximum possible sentence In March, the Court of Appeals reversed two convictions after finding ineffective assistance of trial counsel. In Williams v. State, 983 N.E.2d 661 (Ind. Ct. App. 2013), the court found fundamental error from trial counsel’s failure to object to the admission of Williams’ prior criminal acts, which the State used to argue Williams was predisposed to commit the charged crimes. The jury also heard about Williams’ possession of heroin, guns and a

stolen taser when he was on home detention. Id. at 666. Similarly, in Scott v. State, 986 N.E.2d 292 (Ind. Ct. App. 2013), the defendant received ineffective assistance where counsel incorrectly advised him that the maximum sentence he could receive for operating a vehicle with a BAC of at least .18 g/dl causing death and resisting law enforcement causing death was 30 years of incarceration. Scott established prejudice because trial counsel’s failure to inform him of the correct maximum sentence of 23 rather than 30 years rendered his plea unintelligent. Id. at 296. Thus, the court reversed the denial of Scott’s petition for post-conviction relief and remanded with instructions to impose a 23-year executed sentence. Id.

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

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

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

STEVE TUCHMAN, IMMIGRATION. Experienced practitioner for statewide referrals, consultation and co-counsel positions. Lewis & Kappes, P.C., 317/639-1210, STuchman@ Lewis-Kappes.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. 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. LOCAL COUNSEL, southwestern Indiana. Vanderburgh, Posey, Gibson, Pike, Dubois, Warrick, Spencer, Perry, Knox, Daviess. Circuit/Superior Court, Bankruptcy/District Court, Sheriff Sales, Settlement Conferences. Erin Berger, 812/250-6744, erin@erinbergerlaw.com APPEALS, BRIEFS & PCR. Attorney, experienced in appellate advocacy and post-conviction relief, seeks referrals for civil and criminal appeals or PCR representation. I am also available for trial-level research and writing, including summary judgment memorandums. John Steinhart, Attorney at Law, 317/721-5178, john@jsteinhartlaw.com CALIFORNIA LAWYER since 1966. AV-rated. Member, ISBA. Father and brother practiced many years in Marion. Enjoys interacting with Indiana lawyers. Handles transactions, ancillary probates and general and complex litigation in all California state and federal courts. Law Offices of John R. Browne III, a Professional Corporation, 50 California St., Suite 3500, San Francisco, CA 94111; tel., 415/421-6700; fax, 415/398-2438; email, johnrbrowne@sbcglobal.net; www.jbrownelaw.com

VETERANS DISABILITY. Accepting referrals of veterans' disability, military Medical and Physical Evaluation Boards, Courts Martial, military discharge upgrade and Boards for Correction of Military Records cases throughout Indiana and across the country. Bosley & Bratch, 800/9536224, rbratch@lawyers4veterans.com, www.lawyers4veterans.com. INSURANCE DEFENSE & coverage. AV-rated northwest Indiana insurance defense firm with over 75 years of combined experience in insurance practice is available to work with insurance companies on coverage issues and to represent insureds in litigation throughout northern Indiana. Huelat Mack & Kreppein P.C., 450 St. John Rd., Suite 204, Michigan City, IN 46360, 219/8793253, jhuelat@hmkattorneys.com. ERISA CLAIMS, long-term disability, health insurance claims, life insurance claims. Contact Bridget O’Ryan, 317/255-1000, 1901 Broad Ripple Avenue, Indianapolis, IN 46220, boryan@oryanlawfirm.com SOCIAL SECURITY DISABILITY – Soultana S. Myers, Myers Hockemeyer & McNagny, LLP, 116 N. Chauncey St., Columbia City, IN 46725. Accepting Social Security disability clients in northern Indiana. Member of National Organization of Social Security Claimants’ Representatives. Toll-free: 888/248-2224.

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


RG 06.13_RG 09.05 6/24/13 9:16 AM Page 45

STOCKBROKER/SECURITIES FRAUD. Former Indiana Securities Commissioner who works with investors and attorneys in brokerage disputes. Available for referrals, consulting, co-counsel or expert witness affiliations. No charge for initial evaluations. Maddox, Hargett & Caruso, Mark E. Maddox, 317/598-2040, 800/505-5515. OSHA SAFETY EXPERT WITNESS in construction and industry accidents. U.S. Dept. of Labor Authorized Trainer. Former OSHA inspector. OSHA Safety Expert, Inc., contact Wendell Rust toll-free at 877/544-4323, email: expert@oshasafetyexpert.com PRESCRIPTION ERRORS. Pharmacist attorney will consult, assist in case preparation, depositions and medical research or as co-counsel. Dennis L. Rorick, RPh., J.D., 260/351-4801. COAL, OIL, GAS – Leases, Surface Use Agreements, Title Opinions, Due Diligence, Royalty Determination. Hugh R. Hunt, Attorney at Law, 10 N. Court St., Sullivan, IN 47882; phone, 812/241-1480. FORENSIC HANDWRITING EXPERT – Examination of questioned documents for handwriting, typewriting, alterations, photocopy identification, paper/ink and related issues. Former Chief Document Examiner, Indiana State Police, 28 years, retired. Clarke Mercer Forensic Laboratory, Ltd., Clarke Mercer, 772 S. 850 E., Greenfield, IN 46140, clarkemercer.lab@gmail.com, 317-696-2848. See display ad at p. 18. Résumé available.

Publications For Sale WESTLAW publications, Indiana Cases, Vols. 200-759, covers period 19642003, 228 volumes in excellent condition. WESTLAW values set at $14,000, will accept reasonable offer. Send offers and inquiries to zinmanlaw@aol.com, tel., 812/334-1100, Bloomington, Ind., Zinman Law Offices.

Miscellaneous

Classified word ads:

1945 COMPOSITE PICTURE of lawyers and judges. Well framed under glass a 44" x 30" composite of pictures of over 180 Indiana lawyers and judges from throughout the state plus 98 past lawyers. In addition, included are Governor Gates, the members of the Supreme Court and Court of Appeals, the Attorney General and 7-man staff. Also, all the past presidents of the bar association starting with Benjamin Harrison and the Federal bench and US attorneys are included. $500; call 260/925-2880 and leave word.

Email or fax your classified word ad to Susan J. Ferrer, sferrer@inbar.org or 317/266-2588. You will be billed upon publication.

OFFICE SPACE: Attorneys located in the Gold Building at 151 N. Delaware St. in downtown Indianapolis looking to share extra office space. Secretarial services available. Possible referrals. Low rent. Reply to sferrer@inbar.org and reference “Gold Building” office space. PRIME LOCATION! Just one block from the City-County Building and two blocks from the Federal Courthouse, this available office and the in-suite conference rooms are perfect for any solo attorney looking for nice accommodations in the heart of downtown Indy, without breaking the bank. Surrounded by parking garages and the best eateries, options start at $1,000 per month. Call Michael Head, 317/608-0798. PRIME OFFICE SPACE – Zionsville. Established practitioner looking to share highly visible office space. Call Michael Andreoli, 317/873-6266, ext. 1. MEDIATION TRAINING: Certified 40-hour Domestic Relations Mediation Course, Sept. 19-23, 2013, Fort Wayne. This course sells out – only 3 seats left! To register: 260/483-7660 or www.JanetMitchellMediator.com.

ISBA members 40¢ per word, $10 minimum Nonmembers 60¢ per word, $15 minimum

Florida Ancillary Probate – All Counties Private practice limited to Ancillary & Summary Administration

Reasonable Fees & Prompt Service David L. Puckett Fort Myers, FL & Anderson, IN

239.217.6269 (Office) • 765.620.8443 (Cell) PUCKETTLAW@hotmail.com

APPRAISALS Stamp & Coin Collections 30 Years Experience Knight Coin & Stamp 237 Main St., Hobart, IN 46342

219/942-4341• 800/634-2646 www.knightcoin.com A.N.A. Life Member No. 867

Florida Estate Planning & Probate

BRAD A. GALBRAITH s&LORIDA"AR"OARD#ERTIFIED IN7ILLS 4RUSTS%STATES s#ERTIFIED0UBLIC!CCOUNTANT H A H N L O E S E R & PA R K S L L P

2 3 9 . 2 5 4 . 2 9 0 0 hahnlaw.com

600+ appeals 30+ years experience

Address changes, email or postal? Contact Kevin: kmohl@inbar.org 800/266-2581

Stone Law Office & Legal Research 26 W. 8th St., P.O. Box 1322 Anderson, IN 46015

765/644-0331 800/879-6329 765/644-2629 (fax) info@stone-law.net David W. Stone IV Attorney

Cynthia A. Eggert Paralegal

RES GESTÆ • JUNE 2013

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RG 06.13_RG 09.05 6/19/13 9:16 AM Page 46

By Donna J. Bays and Jessica L. Mayflower

The office mascot: taking the dog to work

F

amily law comes with a lot of heartbroken clients, steeped in tears and anger. Emotional flooding can make it hard to focus on mental tasks or make decisions. As their attorney, it’s my job to do what I can to help clients navigate the legal process and achieve the best outcome. How to do this? One of our solutions to this problem is unexpectedly hairy.

FAIR COMMENT

First came our accidental success When my daughter, Jennifer Bays Beinart, graduated from law school, she wanted a dog. Her graduation gift was a 14pound Rat Terrier named Gideon Wainwright. I always thought pets were forbidden in business offices, but we knew leaving him for long hours wouldn’t be good for him. So, when Jennifer joined the firm, Gideon came, too. At first, I was apprehensive. Gideon wasn’t fully trained yet, and I feared he might distress clients when they came to the office. But Gideon quickly assimilated to the office atmosphere, and we grew used to having him around. For several months, we kept him away from clients for fear that they would react negatively. After all, having pets in the office was unprofessional, right? Yet, occasionally, a client would catch sight of Gideon through an open doorway. I was surprised by how many asked if they could pet him. Gradually, we stopped hiding Gideon from visitors. He brought smiles to tear-soaked faces in our waiting area. Even the mailman grew fond of him. Seeing that success, I began to yearn for my own furry friend. I sought out rescue dogs for weeks and finally found 2-year-old Mordecai. Although unsure of his breed, I can report he’s small, white and fluffy.

Then we tested the theory From day one, Mordecai came to work with me. No matter what, he always looks sweet and playful – my assistant says he looks like a white Bays Family Law teddy bear. I knew when I first met him Zionsville, Ind. www.baysfamilylaw.com that he was made to warm hearts.

46

RES GESTÆ • JUNE 2013

Dogs are a great boost to mental health. They offer comfort in hospice and psychiatric wards and even tail after PTSD patients as service animals.1 I reasoned: If a Great Dane can calm a traumatized soldier, then why can’t my little tail-wagger comfort family law clients? New clients are asked how they feel about having Mordecai in the room. Most clients happily accept the company of a beaming Mordecai. When I meet with the rare client who is uncomfortable with dogs, my assistant doesn’t mind watching him. In fact, I think she secretly loves it. He brings a smile to her face, too. Somehow, Mordecai just knows when clients need to pet him and when he should give them some space. I’ve trained him to go to the dog bed behind my desk when he needs a timeout. Most of the time, he is 12 pounds of friendly fluff, a happy face bringing comfort and peace to clients.

And now it is your turn There is a whole world of research out there about the positive effects of pets. The CDC reported that a pet can lower blood pressure, cholesterol and triglyceride levels, and feelings of loneliness.2 Those are side effects I do not mind having. As a long-standing fan of NPR, a recent discussion about dogs in the workplace caught my attention.3 Apparently, taking Fido to work is a time-honored strategy to keep office stress at a minimum. It is also known to keep dog owners content, not that I would know anything about that. If you have a people-friendly dog, try bringing your pooch to the office, especially if you work with emotional clients. You will be surprised at how much a difference it will make to your clientele, your staff, and your dog. 1. http://www.cnn.com/2012/08/01/health/mental-health-service-dogs 2. http://www.cdc.gov/healthypets/health_benefits.htm 3. http://www.npr.org/blogs/health/2012/03/30/149684409/take-yourdog-to-the-office-and-stress-less


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Res Gestae - June 2013  

June 2013 edition of Res Gestae, the journal of the Indiana State Bar Association.

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