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ANNUAL MEETING FRENCH LICK RESORT • OCTOBER 7-9, 2015 #ISBAANNUAL

REGISTRATION BROCHURE INSIDE

July/August 2015

Vol. 59, No. 1


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The Journal of the Indiana State Bar Association

RES GESTÆ July/August 2015

Vol. 59, No. 1

DEPARTMENTS 8 LDA GRADS

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17 CONSUMER ADVOCACY

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

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ETHICS CURBSTONE

34

RECENT DECISIONS 3/15

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CRIMINAL JUSTICE NOTES 3/15

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FAIR COMMENT

Donald R. Lundberg, Indianapolis

Jane Dall Wilson and Donald E. Morgan, Indianapolis

Jack Kenney, Indianapolis

Theresa M. Browning, Indianapolis

F E AT U R E S

24 LAWYER’S DUTY

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‘EYE-OPENING’ POVERTY SIMULATION HIGHLIGHTS LEADERSHIP DEVELOPMENT ACADEMY SESSION By Bill Brooks, Indianapolis

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

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COMMITTEE MEMBERS NEEDED FOR 2015-16

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THE OFFICE OF ATTORNEY GENERAL & CONSUMER ADVOCACY FOR SERVICEMEMBERS By Paul J. Schilling and Thomas E. Irons, Indianapolis

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LEGAL ETHICS COMMITTEE OPINION NO. 2 OF 2015 Lawyer’s duty to report child abuse and Rule 1.6 duty of confidentiality

15 ANNUAL DAY OF SERVICE

22 MAGNA CARTA CLE

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

RES GESTÆ • JULY/AUGUST 2015

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Partnership – it can be bigger than you think

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

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

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

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

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

he 10,000-foot perspective that accompanies the ISBA presidency has introduced this small-firm, small-town, southern Indiana lawyer to a fullpractice spectrum of the state’s judicial, legaleducation and law-practice environments. Differences exist across the practice spectrum, but some thematic commonalities have surprised me. In early July, many of those commonalities appeared to me when the ISBA hosted breakfast for managing partners from some of Indiana’s largest law firms, which also included, among the participants, Jon Laramore, the new executive director of Indiana Legal Services, Inc., and Indiana Attorney General Gregory Zoeller. ISBA past president and Frost Brown Todd partner Jim Dimos helped me kick off the breakfast meeting with an interactive discussion on how the State Bar can help law firms leverage their human and financial resources more profitably. These were some of the takeaways from that discussion I think all Indiana law firms should consider: • Send representatives to the ISBA’s Solo & Small Firm Conference to see how smallfirm lawyers are implementing technology that could also help large firms. • Help new lawyers build referral relationships and diverse mentorships as volunteers on ISBA projects with colleagues from across the state. • Encourage new lawyers to develop “deep knowledge” that sophisticated clients increasingly demand by speaking at ISBA CLE presentations, writing scholarly articles for Res Gestae, and contributing to substantive sections’ discussion forums, newsletters and legislative review committees. • Exploit ISBA’s free Casemaker research system as a cost-savings response to sophisticated clients’ billing scrutiny (Benesch partner Andi Metzel chimed in about how Casemaker’s appellate brief citation analysis has impressed her, and I testified about how Casemaker has saved my firm thousands of dollars annually). • Sponsor ISBA programs to promote firm branding (e.g., judicial receptions, symposia, national keynote speakers, social and wellness events, etc.). • Build new-lawyer competence by using or adopting ISBA’s Mentor Match program (some large firms have already partnered with

ISBA to develop in-house Mentor Match systems). • Follow and support ISBA’s legislative, judicial and administrative advocacy initiatives (e.g., court rule proposals and comments, state court e-filing implementation and staff training, opposition to service tax legislation, etc.). • Build a healthier and more resilient Indiana through volunteer participation in and financial sponsorship of ISBA’s numerous civic development programs (e.g., Talk to a Lawyer Today, Leadership Development Academy, Speakers Bureau, Lincoln as a Lawyer, Kids Election, etc.). • Develop new-lawyer leadership skills through active service on ISBA committees and section councils. For section and committee descriptions, click on the “Sections & Committees” menu at the top of the ISBA’s homepage at www.inbar.org. • Show new lawyers how to enrich their quality of life (I call it intellectual cross-pollination) by accompanying them to the State Bar’s fall meeting (in the newly expanded French Lick Resort conference facility Oct. 7-9) and other ISBA events, and introducing them to a fascinating collection of ISBA members they would otherwise never encounter in their insular practice environments. • Incentivize paralegal professionalism by encouraging paralegals to apply for Indiana Registered Paralegal status via the ISBA. • Promote diversity and inclusion within firms and throughout the profession by exchanging diversity and inclusion ideas and resources with ISBA’s Diversity Committee. I cannot stop thinking about how much my small-firm, smalltown, southern Indiana practice has in common with Indiana’s largest and most (continued on p. 7)

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

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PRESIDENT’S PERSPECTIVE continued from page 5 progressive law firms. As I enter the last few months of my presidency and my 23rd year of law practice, it occurs to me that I have participated in and benefited from almost all of the ISBA programs and features those large law firms explored with me during breakfast. My esteemed mentor and former law partner, Greene County’s John Rowe, taught me the best law is practiced with a yellow pad and a No. 2 pencil. In the third month of my career, John encouraged me to begin my State Bar experience as a district representative on the Young Lawyers Section Council, where I discovered that the most fulfilling and empowering career development was through active membership in the ISBA. Today, John’s excellent mentorship example still inspires me to pass on that gift to the new generations of lawyers, whether they practice in a law office on my county’s courthouse square or in the Indiana Government Center or on one of the highest floors of the Chase Tower. We all factor prominently in the legal service community equation, and I am proud to be part of it.

Pay your membership dues online today! Need help logging on www.inbar.org? Contact the ISBA 800-266-2581 RES GESTÆ • JULY/AUGUST 2015

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By Bill Brooks

‘Eye-opening’ poverty simulation highlights LDA session

B LEADERSHIP DEVELOPMENT ACADEMY

y the time the fourth class of the Indiana State Bar Association’s Leadership Development Academy gathered in Fort Wayne, the 25 members had done what about 75 others had done before them. They had interacted with Indiana Supreme Court justices; they had learned from local community activists; they had talked to state legislators, heard from the Indiana attorney general and a federal judge; they had organized a class project; and they had played paintball in a distinctly military setting. But then, in Fort Wayne on May 14-15, the members of #LDA2015 did what none of their predecessors had – they became poverty-stricken. The experience was merely a simulation, of course, but it was a vivid and most illuminating exercise. “Eye-opening” was a term to be heard more than once after the session, which was the wrap-up of LDA 4’s final gathering. The exercise was the Community Action Poverty Simulation, executed by the Indiana Nonprofit Resource Network (INRN) (Independent Sector) and coordinated by the Indiana Association of United Ways. It was, according to INRN Regional Director Jillian Henry, geared “to give you a small taste of what life is like on a limited income.”

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The role-playing exercise found each LDA class member adopting an assigned fictional persona, with the challenge to keep their home secure, buy food, keep the utilities on, make loan payments, keep their school-age children in school, and meet life’s other challenges – all on a very restricted income. The exercise was designed, Henry said, to create stress, to simulate what it’s like “struggling to make it paycheck to paycheck – it’s an intentionally frustrating experience, but for 46 million people, this is not a game.” The entire LDA crew, including committee members and Carol Adinamis, incoming ISBA president, took part. The participants were divided into separate family units, finding that they needed transportation credits to even walk to stations that lined the walls of the large room, stations representing resources such as the bank, a grocery, a child care center, a community action agency, a homeless shelter, the utility company and even “Big Dave’s Pawn Shop.” They discovered what a huge problem transportation can be. They discovered the evils of payday lending services. The exercise isn’t set up to absolve the participants from any responsibility for bad choices, but it does tend to send the participants away with a sense of compassion. For one LDA committee member, the program’s value was clearly evident. “What I saw after the poverty simulation was people talking about their own personal, and sometimes very painful, experiences with poverty,” said Laura Paul of Indianapolis. “And I heard people talking about how the experience reframed their thinking about what it’s like to live in poverty in some way. By encouraging lawyers who want to be leaders in the community to talk frankly about poverty, I am hopeful that the conversation

will lead to action and change for the better.” The poverty simulation was just the latest in a four-year series of innovative programs presented to Leadership Development Academy class members – programs that, as ISBA President Jeff Hawkins said in that evening’s closing ceremony, are designed to methodically prepare the attorneys for leadership roles not only in the bar association but also in their communities. Don Lundberg, president of the Indiana Bar Foundation, reminded the graduating class members of “the great tradition in the bar of taking leadership roles in communities. We hope you will all continue that tradition.” Said Indiana Supreme Court Justice Steve David, a near-constant presence throughout the academy sessions, “You have learned that those who can shepherd are in critical need – and short supply.” He said they might have figured out that the Leadership Development Academy is really a wellness program “to enhance your vision, increase your hearing.” There was little doubt, however, that the message had been received. As Sara McClammer of Indianapolis helped represent her class in giving some grateful gifts to LDA staff members, she said, “All of us consider this a lifechanging experience; I am not overstating that.” The Fort Wayne session was held in the hometown of Judge Thomas Felts, chair of the LDA Committee, and included sessions in his stunning Allen Circuit Courtroom, sessions which focused on the world of nonprofit and foundation board structures, as well as pro bono legal services. One panel dealt with the question: “What is the value to the com-


Photo by Vincent Morretino

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ISBA Leadership Development Academy 2015 Graduating Class munity of board service?” Panelist Tom Trent, a partner in the law firm Rothberg Logan & Warsco, pointed out that Fort Wayne’s 1,500 not-for-profit organizations are “critical to the underlying fabric of the community.” Said Rachel Tobin-Smith, executive director of an organization that works to stop child abuse and neglect, “The real infrastructure of a community is its people.” She said board service “is about creating a community you’ll be proud of, and want to live in.” Lawyers serving on boards, however, can be somewhat tricky. Trent said attorneys who serve on boards of young or small organizations might also be serving as legal counsel. But, as Marcia Haaff, CEO of The Lutheran Foundation, explained, “Early on in our organization an attorney board member did serve as legal counsel, but as we matured we could clearly see that was not the right course for us.”

The panel also agreed that funding issues go hand in hand with board service – but that doesn’t mean serving on a board means writing a big check. “Not everyone has the money,” said Cheryl Taylor, president and CEO of the Foellinger Foundation, “but you need to be willing to ask for money.” Tobin-Smith took a somewhat different view. “You don’t have to ask [for money],” she said, “but you need a willingness to share your enthusiasm.” All agreed that board members must be ambassadors throughout the community, with Trent adding, “Make sure you have the time to commit. Make sure you’re invested – or it will backfire professionally.” He also admitted he began serving on community organizations for business development reasons, which were selfish. “But, for me, it was transformative.”

As for the foundations, one thing was made clear: “We stay true to donor intent,” Haaff said. Taylor echoed that thought: “Life starts in all of our organizations with donor intent.” The panel on pro bono service covered a wide range of subjects. Jon Laramore, executive director of Indiana Legal Services, said almost a million Hoosier residents are eligible for pro bono legal services. His organization was able to take 9,000 cases last year – only about half of the applicants – with family law issues consuming the organization’s resources. Ruth Dewit, executive director for the Volunteer Lawyer Program of Northeast Indiana, said her organization (one of 12 in the state) fielded more than 11,000 inquiries last year. The unattainable goal, (continued on page 10)

RES GESTÆ • JULY/AUGUST 2015

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LDA SESSION

LDA 2016 is in the works!

continued from page 9

T

he State Bar’s Leadership Development Academy (LDA), entering its fifth year, will soon be accepting applications for the Class of 2016. Developed and maintained by a volunteer standing committee of the ISBA (with significant assistance from the ISBA staff), the LDA empowers and develops lawyers to be informed, committed and involved so that they may fill significant leadership roles in local and state bar associations, Indiana communities and organizations, and serve as role models in matters of ethics and professionalism.

Participants will have the opportunity to engage with professional facilitators and prominent speakers with a variety of experiences and expertise. As they travel around the state, class members will actively engage in panel discussions, group activities and demonstrations with our faculty. Past graduates have praised the focus on servant leadership principles and techniques as well as efficiency and effectiveness in both professional relations and community involvement. In learning about the challenges and rewards of leadership in action, LDA grads return to their communities inspired to make a difference in big and small ways. They are recognized as future leaders both locally and statewide. Members of the faculty include Indiana Supreme Court justices and Court of Appeals and trial court judges; members of the executive and legislative branches of Indiana government; and prominent business and military leaders. Class members will earn enough CLE and NLS credits to satisfy the year’s requirements. The LDA Class of 2016 will be limited to 25 Indiana lawyers who have been admitted to practice for 15 years or less. There will be five sessions, each incorporating at least one overnight stay, and successful candidates are required to attend each entire session and must be willing to travel to various parts of the state for each session. The session dates and locations are: Jan. 21-23 & Feb. 15-16, Indianapolis; March 10-11, South Bend; April 21-22, Muscatatuck; and May 19-21, Richmond. Applicants must be members of the ISBA. The program fee ($1,450) covers sessions, lodging, meals, snacks and CLE. Scholarships will be available for those demonstrating need. Additional information, to include availability of the application and application deadline, will be revealed in the next issue of Res Gestae. – Amy Noe, LDA Committee Vice Chair

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she said, “is to turn no one away,” adding that they are able to direct people to the right place if pro bono isn’t the right course for them. “The need is great,” she said. Laramore noted that, of Indiana’s 18,500 attorneys, only 1,300 took pro bono cases in the most recent year. Kevin Carretta, an attorney with Rothberg Logan & Warsco, said he originally looked for reasons not to do pro bono, but has since learned that it’s a valuable exercise in more ways than one. “It’s learning another part of the law, getting experience in front of judges. It provides you practical experience.” But Carretta also said he takes the responsibility very seriously – made easier by the great preparation done by the pro bono staff. He added that pro bono helps close the justice gap. He also issued a challenge: “You people are leaders – or so it says. People will follow what you do.”

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Committee members needed for next operational year

ATTENTION

C

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arol M. Adinamis, Westfield, ISBA presidentelect, will soon begin the process of appointing members to our various committees for the 2015-16 operational year. The State Bar wants and needs you to participate in the important 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 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 2015. 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. 28.

RES GESTÆ • JULY/AUGUST 2015

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 that would 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 Indiana Supreme Court. The rule passed the ISBA House of Delegates unanimously, and the Supreme Court amended Indiana Rules of Criminal Procedure, Rule 25, which was effective Jan. 1 of this year. 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 at each annual meeting of the Association the names of all members who have died since the date of the last report. The Committee on Improvements in the Judicial System promotes the election or appointment of properly qualified


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(Please print or type) 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 in our state. 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 also develops and recommends projects and programs that 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. The Legal Ethics Committee shall foster and promulgate high ethical standards in accordance with the rules of the Indiana Supreme Court. The committee issues written opinions upon request. Opinions are formal or informal. Formal opinions shall be on questions of first impression in Indiana and other matters warranting general circulation in the judgment of the committee. Informal opinions shall be on questions previously resolved by formal opinions. (continued on page 14)

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

Standing Committees

____ Legal Ethics

____ Affiliate Membership

____ Long Range Planning

____ American Citizenship

____ Military & Veterans’ Affairs

____ Articles & Bylaws

____ Pro Bono

____ Attorney Fee Dispute

____ Public Relations

Resolution ____ Service ____ Aviation Law ____ Sexual Orientation ____ Casemaker Improvement

& Gender Identity

____ Civil Rights of Children

____ State Legislation

____ Clients’ Financial

____ Technology

Assistance Fund ____ Unauthorized ____ Diversity

Practice of Law

____ Federal Judiciary

____ Wellness

____ Honors

____ Women in the Law

____ Improvements in the

____ Written Publications

Judicial System ____ Latino Affairs

Special Committees ____ CLE

____ Law Practice Management ____ Courthouse Art ____ Lawyer Advertising Rules Review

____ IndianaDocs

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

RES GESTÆ • JULY/AUGUST 2015

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COMMITTEES continued from page 13 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 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 PR policies. This committee recommends ways to improve the relationship between the public and the legal profession by way of presenting the work of the ISBA and lawyers generally through the use of the press, radio, television and other media.

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The Service Committee, spearheaded by members of the inaugural class of the ISBA Leadership Development Academy, has established an annual Day of Service (this year on Sept. 19); is promoting service by state and local bar associations; and presents an award at the ISBA Annual Meeting to recognize Indiana attorneys committed to serving beyond their clients. The Sexual Orientation & Gender Identity Committee shall focus on legal issues related to sexual orientation and gender identity as well as promote full and equal participation in the legal profession by persons of differing sexual orientations and gender identities. 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

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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. The IndianaDocs Committee is responsible for creating, reviewing, approving and keeping current all practice-related forms for inclusion in the IndianaDocs library. This document assembly software allows members to save time, effort and money in the production of repetitive documents and forms.

ISBA’s Annual Day of Service WHEN: Saturday, Sept. 19 WHO: Attorneys and judges from local bar associations throughout the state of Indiana, along with their families and staff WHAT: Attorneys and judges from across the state will come together in their respective counties to engage in hands-on community service. From cleaning up local neighborhoods to volunteering at local shelters, attorneys and judges will have the opportunity to work together to make their communities better. Activities may include volunteering at a local soup kitchen, homeless shelter or community center; providing painting or cleanup services for neighborhoods in need; harvesting from community gardens and donating produce to food pantries; or assisting the Red Cross, Salvation Army or Habitat for Humanity, among other service organizations.

WHERE: Your local communities! District liaisons will work with local bars to coordinate efforts in every county for the Annual Day of Service.

WHY: The focus of the Annual Day of Service is hands-on community service, with the goal to inspire attorneys and judges to get their hands dirty – cleaning up their local parks, adopting streets, building homes; unifying members of state, local and specialty bar associations; and highlighting the “good works” of the legal community as a whole. For more information or to add your county and event to the Annual Day of Service project list, contact Catheryne Pully at the ISBA, cpully@inbar.org, or anyone from the following list: Annual Day of Service Director Jaime M. Oss, Michigan City, joss@hmkattorneys.com District 1 Liaison: District 2 Liaison: District 3 Liaison: District 4 Liaison: District 5 Liaison: District 6 Liaison: District 7 Liaison: District 8 Liaison: District 9 Liaison: District 10 Liaison: District 11 Liaison:

Jacquelyn S. Pillar, Munster, jpillar@cszlegal.com Marylyn K. Ernsberger, Angola, marylyn67@frontier.com Chuck P. Schmal, Indianapolis, cschmal@uspatent.com Lindsay M. Lepley, Fort Wayne, LLepley@burtblee.com Candace D. Armstrong, Brook, candace@cdalawoffices.com Julie A. Newhouse, Rushville, julie@newhouse-law.com Jaime M. Oss, joss@hmkattorneys.com Jaime M. Oss, joss@hmkattorneys.com Jaime M. Oss, joss@hmkattorneys.com Jaime M. Oss, joss@hmkattorneys.com Andrea L. Ciobanu, Indianapolis, aciobanu@ciobanulaw.com

RES GESTÆ • JULY/AUGUST 2015

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ISBA Young Lawyers Section Presents SEMINAR

APPLIED

Oct. 23, 2015

- AGENDA QUICK LOOK 8:30 am – Registration and Breakfast 8:50 am 8:50 am – Welcome and Introductions 9:00 am 9:00 am – CLE Presentation 4:30 pm

Seminar: 9:00 am - 4:30 pm Regions Bank Conference Center One Indiana Square, 5th Floor Indianapolis, IN 46204

Topics will include: Attorney Relationships With Third Parties, Trust Accounts, IOLTA, Attorney-Client Relationships, Professionalism/Civility, and Awareness and Treatment of Impairments Through the Indiana Judges and Lawyers Assistance Program. This course fulfills the requirement for new attorneys. Registration includes electronic program materials, breakfast, and lunch.

CLE Pricing Information ❑ $65 - ISBA Member with less than 3 years of practice ❑ $75 - Non-member with less than 3 years of practice Please indicate any special dietary needs: ❑ Diabetic

❑ $180 - ISBA member, more than 3 years ❑ $360 - Non-member, more than 3 years

❑ Vegetarian

Name_________________________________________________

❑ Other______________________________ Payment Information

Address________________________________________________

❑ Check (make payable to Indiana State Bar Association)

City, State, Zip____________________________________________

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

Phone_________________________________________________ Fax___________________________________________________

Card Number_____________________________________________ Exp. Date _______ /_______ 3-4 digit Card Verification Code_____________

Email_________________________________________________

Signature_______________________________________________ $20 will be added for registrations received after 10/19/15.

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

Young Lawyers Section: Applied Professionalism CLE - 10/23/15

A $25 service fee will be applied to cancellations received on or before 10/19/15. No refunds on cancellations received after 10/19/15. If you send someone else in your place, please provide ISBA with that person’s name.

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

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


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By Paul J. Schilling and Thomas E. Irons

The OAG and consumer advocacy for servicemembers

T

he Office of the Indiana Attorney General (“OAG”) supports our servicemembers by providing consumer protection and advocacy services, identity theft assistance and ensuring the provisions of the newly enacted Indiana Servicemembers Civil Relief Act (“ISCRA”) are adhered to. Military service presents unique challenges. Our warfighters face deployments, unaccompanied tours around the globe, patrolling the seas and securing embassies and other United States interests. Furthermore, reservists and Air and National Guard members face combat deployments, disrupting their civilian careers, and the added stress of reintegrating into society and the workforce once their tour is complete. The OAG is aware of some of the unique challenges faced by the men and women in our armed forces and offers several services to assist them and their families to adjust, adapt and overcome. The OAG has worked with the Indiana National Guard to assist Hoosier servicemembers. Since 2007, the OAG has conducted outreach and speaking events, including: pre-deployment Soldier Readiness Processing (SRP) presentations for Guard units, veterans’ services and benefits meetings, family workshops, veterans court presentations and family support group meetings. Since 2010, an OAG representative has appeared at 47 events with military and veterans groups, explaining available OAG services to more than 3,000 servicemembers. Information on the OAG’s military outreach can be found at www.indianaconsumer. com/military. Additionally, new legislation authorizes the OAG to bring civil actions to enforce a wide range of consumer and employment-related

protections on behalf of active duty servicemembers, including members of the Indiana National Guard.

Consumer protection services for servicemembers Anyone who has spent time on or around an active duty military base has seen various businesses, car lots and other merchants with “military pre-approved” or “E-1 and above with approved credit” signs. Unfortunately, some unscrupulous businesses target military members and their families. In July 2014, the OAG, in conjunction with the Consumer Financial Protection Bureau (“CFPB”) and the attorneys general of several other states entered into settlement agreement with a military consumer lender for debt relief of nearly $92 million dollars. Colfax Capital Corporation and Culver Capital, LLC, collectively known as Rome Finance (“Rome”), offered credit to military members for products sold at mall kiosks. Rome offered “no money down” and “instant financing.” The consumers would fill out a credit application at the kiosk and, if approved, sign a financing agreement. The agreement failed to disclose interest amounts and finance charges. Moreover, billing statements were inaccurate, and debt that was not owed was unfairly collected. Rome was required to cancel nearly $1.5 million dollars in debt owed by 261 Indiana servicemembers. Further, Rome was forbidden to engage in any consumer lending and ordered to alleviate any consumers of their debt and mark it as “paid in full” with the consumerreporting agencies. The OAG also provided relief for servicemembers who were victims of mortgage fraud. For instance, in 2013, an active duty Marine filed a consumer complaint

with the OAG against his lender. The Marine deployed to Iraq in 2008 and notified his lender of his deployment. The lender foreclosed on the property while he was deployed. An OAG investigation determined that the servicing lender obtained a default judgment to foreclose on the property. The OAG obtained documents from the servicer showing that a nonmilitary service affidavit the servicer provided to the court was fraudulent. Ultimately, the servicemember was awarded $125,000 from the National Mortgage Settlement. The servicer and lender were also required to remove the foreclosure from his credit report.

Identity theft protection The 76th Infantry Brigade, an Indiana National Guard unit, deployed in support of Operation Iraqi Freedom in 2008. Shortly after their arrival in country, approximately 10 soldiers discovered fraudulent transactions on their credit cards and suspected that they were victims of identity theft. The soldiers contacted a JAG officer in the brigade regarding the fraudulent transactions. The Identity Theft Unit (“ITU”) of the OAG was contacted, spoke to the JAG officer and helped ensure that the deployed soldiers were able to place active duty fraud alerts on their credit file and order credit reports. One of the simplest forms of credit protection our military can do is place an active duty alert on their credit file. The active duty alert may be placed when the servicemember deploys for service away from their usual post. An active duty alert lasts 12 months and removes Deputy Attorneys General that individual from paul.j.schilling@gmail.com prescreened solicitation tom.irons@atg.in.gov credit offers for two Office of Indiana years. (continued on page 18)

Attorney General Indianapolis, Ind.

RES GESTÆ • JULY/AUGUST 2015

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ADVOCACY continued from page 17

ISBA CLE

Lawyers for Soldiers Sept. 11, 2015 Indiana Supreme Court Indiana Statehouse • Indianapolis Sponsored by the ISBA Military & Veterans’ Affairs and Pro Bono committees

7 hrs. CLE/1 hr. Ethics Overview of VA Benefits: Tutorial on Military Cultural Competency for Lawyers Polli A. Pollem, Military Assistance Project Director Indiana Legal Services

The Role & Limitation of Military Legal Assistance Capt. Kenneth D. Washington, U.S. Army/IN National Guard

An Introduction to Issues in Military Divorces Megan M. Lewis, Flood & Lewis, LLC

Veterans Courts Judge Maria D. Granger, Floyd Superior Court #3

An Introduction to Uniformed Services Employment & Reemployment Rights Act (USERRA) Gary D. Miller, The Law Office of Gary D. Miller

An Introduction to Servicemembers Civil Relief Act (SCRA) J.T. Parker, Chief of Staff, Indiana Prosecuting Attorneys Council

Ethical Considerations When Representing Military Personnel J. Alexander Nickloy, Nickloy & Higdon Jeffrey S. Nickloy, Nickloy & Higdon

For more information and to register online, visit www.inbar.org or call 800/266-2581 18

RES GESTÆ • JULY/AUGUST 2015

With an active duty alert, any time a credit account is opened in the servicemember’s name, a credit limit is increased on an existing account, or a new card for an existing account is ordered, the lender must take appropriate steps to verify that the servicemember made or authorized the request. Placing an active duty alert also entitles the servicemember to one free credit report from each of the three nationwide consumer-reporting companies (TransUnion, Equifax, Experian). It is important to note that servicemembers need only contact one credit-reporting agency; once the initial alert has been placed, the burden shifts to the first agency to notify the remaining CRAs. The ITU also assists military members and spouses in ordering and obtaining their credit reports. If fraudulent entries are discovered, the ITU can assist in contacting law enforcement, disputing fraudulent entries and having them removed from the individual’s credit report. An active duty alert can be placed by calling 877/322-8228 or through the Attorney General’s website at www.indianaconsumer.com/ military. It seems like every day a news report surfaces that a company has had a data breach of their records. Companies like Target, Apple and Anthem and government agencies like the U.S. Department of Veterans Affairs and Indiana’s BMV have reported security breaches. Indiana Code §24-4.9 et seq. requires companies to inform victims of a breach “without unreasonable delay.” The ITU is vigilant in monitoring for security breaches and ensuring that companies provide victims with notifications in a timely manner. The ITU has been instrumental in ensuring that affected Hoosiers are notified


RG 07-08.15_RG 09.05 7/27/15 11:18 AM Page 19

of security breaches in accordance with federal and Indiana law.

The Indiana Servicemembers Civil Relief Act House Enrolled Act 1456 creates the Indiana Servicemembers Civil Relief Act (hereinafter the “ISCRA”).1 Protections under the ISCRA incorporate and supplement protections for servicemembers under the federal Servicemembers Civil Relief Act (hereinafter “SCRA”).2 In terms of AG enforcement, the ISCRA also incorporates protections under the federal Uniformed Services Employment & Reemployment Rights Act (“USERRA”).3 HEA 1456 also requires the Indiana National Guard to provide members and reserve members with a list of the rights a servicemember or a servicemember’s dependent has under both the ISCRA and SCRA.4 USERRA guarantees a servicemember reemployment at their previously held civilian job following a period of active duty,5 prevents employment discrimination on the basis of military service,6 and ensures continuity of health insurance coverage while transitioning from civilian employment to active duty and back.7 Indiana has already incorporated and applied USERRA protections to members of the Indiana National Guard ordered to active duty.8 The OAG can now bring civil actions to enforce these protections.9 Protections under the SCRA apply to a “servicemember”10 in “military service.”11 Indiana has already incorporated and applied SCRA protections to members of the Indiana National Guard ordered to active duty by the president or governor for periods of at least 30 consecutive days.12 ISCRA also incorporates and supplements

the SCRA’s definition of “military service” to include a member or reserve member of the Indiana National Guard called to active duty for more than 30 consecutive days by the president or governor.13

Title III of the SCRA16 contain significant consumer protection provisions by placing substantial limitations on default judgments, self-help enforcement of mortgages and lease obligations,17 providing for stays or set aside of judgments in civil proceedings,18 tolling of statutes of limitation, allowing for

A violation of the SCRA is a violation of the ISCRA, with the latter intended to supplement the former.14 Title II of the SCRA15 and

(continued on page 20)

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ADVOCACY continued from page 19 penalty-free cancellation of premises and automobile leases,19 and the reduction of interest rates on some pre-service obligations to 6 percent.20 The ISCRA provides dependents of a servicemember with the same rights and protections provided to the servicemember under Title II of the SCRA.21 The ISCRA also incorporates protections for servicemembers under Title III of the SCRA and supplements that protection by extending contractual termination rights to additional types of contractual obligations in cases where the servicemember is ordered to relocate for at least 90 days to a location that does not support the contract.22 The ISCRA extends contractual termination rights to telecommunications services, Internet services, television services, athletic or gym member-

20

RES GESTÆ • JULY/AUGUST 2015

ships, and satellite radio services.23 Once delivery of a written or electronic notice of termination and a copy of the servicemember’s military orders is made on a service provider,24 the service provider is required to provide the servicemember with a written or electronic notice of the servicemember’s SCRA and ISCRA rights.25 The service provider is prohibited from imposing an early termination charge26 and must, within 60 days after termination, refund all fees paid for services that extend past the termination date.27 If the servicemember resubscribes to the service within 90 days of returning from duty, the service provider may only impose usual and customary charges and fees for the installation or acquisition of customer equipment that are imposed on other subscribers.28

With respect to a member of the Indiana National Guard, a person is not subject to liability under the ISCRA or the SCRA unless the member or reserve member who has been ordered to active duty by the governor provides documentation to the person that the member has been ordered to state active duty (at least 30 consecutive days).29 Civil actions may be brought by the OAG against any person that knowingly or intentionally violates the ISCRA, the SCRA or USERRA.30 The court may issue an injunction; order payment of money unlawfully received from or required to be refunded to servicemembers; order payment to the state the reasonable costs of the OAG’s investigation and prosecution; and order


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payment of a civil penalty to the state of up to $5,000. 1. Ind. Code §10-16-20-1 et seq., effective July 1, 2015. 2. Ind. Code §10-16-7-23(b) incorporates the SCRA, 50 U.S.C. App. §501 et seq., and the attorney general is authorized to bring civil actions to enforce protections under the SCRA and the supplemental protections provided under the ISCRA pursuant to Ind. Code §10-16-20-5. 3. Ind. Code §10-16-7-23(c) incorporates USERRA, 38 U.S.C. §4301 et seq., and the attorney general is authorized to bring civil actions to enforce protections under USERRA pursuant to Ind. Code §10-16-20-5.

20. 50 U.S.C. App. §527(a)(1) extends protection to spouses on joint obligations. 21. Ind. Code §10-16-20-3. 22. Ind. Code §10-16-20-4(a). 23. Ind. Code §10-16-20-4(b). 24. Ind. Code §10-16-20-4(c). 25. Ind. Code §10-16-20-4(c) directs service providers to provide notice using the SCRA and ISCRA rights posted on the Indiana National Guard’s website. 26. Ind. Code §10-16-20-4(d).

28. Ind. Code §10-16-20-4(f). 29. Ind. Code §10-16-7-23(c). This section appears to apply to any possible USERRA violations as well. 30. Ind. Code §10-16-20-5 grants the AG the authority to enforce the ISCRA. Ind. Code §10-16-20-1 provides that a violation of the SCRA is a violation of the ISCRA. Ind. Code §10-16-20-5 also includes authority to enforce Ind. Code §10-16-7-23, which, with respect to members of the Indiana National Guard ordered to active duty, includes violations of the SCRA and USERRA.

27. Ind. Code §10-16-20-4(g).

4. Ind. Code §10-16-6-13. 5. 38 U.S.C. §§ 4312-4316; 20 CFR §§ 1002.1801002.248. 6. 38 U.S.C. §4311; 20 CFR §§ 1002.18-23.

Pe r s o n a l T r u s t s a n d E s t a t e s

7. 38 U.S.C. §4317; 20 CFR §§ 1002.163-171. 8. Ind. Code §10-16-7-23. 9. Ind. Code §10-16-20-5 includes violations of Ind. Code §10-16-7-23. 10. 50 U.S.C. App. §511(1). Under certain circumstances, protections may extend to dependents as defined by 50 U.S.C. App. §511(4) and to persons secondarily liable on an obligation under 50 U.S.C. App. §513. 11. 50 U.S.C. App. §511(2) and including servicemembers in the National Guard if called to active duty by the president for a period of more than 30 consecutive days under 50 U.S.C. App. §511(2)(ii). 12. Ind. Code §10-16-7-23(b). Note that Ind. Code §33-23-9-1 allows state courts to extend SCRA protections provided at 50 U.S.C. App. §513 to dependents and others if such individuals are secondarily liable on an obligation. 13. Ind. Code §10-16-20-2(B). 14. Ind. Code §10-16-20-1. 15. See 50 U.S.C. App. §521 for default judgments (and §§ 522, 524 and 525 for related provisions); §522 for stays; §523 for fines and penalties in contracts; §526 for tolling statutes of limitation; §527 for maximum interest on pre-service debts. 16. See 50 U.S.C. App. §531 for evictions; §532 for termination of installment contracts; §533 for mortgage foreclosures; §535 for termination of leases. Note also that §538 may extend these protections to dependents. 17. 50 U.S.C. App. §531 requires a court order to evict or foreclose. This section also applies to dependents. Note also additional SCRA requirements imposed on five major mortgage servicers in United States of America, et al. v. Bank of America Corp. et al. Consent Judgment, A-32 to 33, available at www. justice.gov/opa/documents/bank-of-americaconsent-judgement.pdf.

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18. 50 U.S.C. App. §512 (b) includes administrative proceedings. 50 U.S.C. App. §513 extends this protection to a dependent if secondarily liable on a claim. 19. 50 U.S.C. App. §535 extends protection to a dependent obligated under the lease.

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RES GESTÆ • JULY/AUGUST 2015

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Magna Carta CLE planned at ISU Sept. 15

ATTENTION

E

22

ight hundred years ago at Runnymede, along the banks of the Thames, King John affixed his seal to the Magna Carta. This historic event’s impact on the rule of law is the foundation for an exciting legal seminar planned for the afternoon of Sept. 15 at Indiana State University. The Magna Carta Room in Federal Hall on the ISU campus, which contains a large triptych mural depicting the signing of the Magna Carta, will appropriately serve as the location for the “Symposium on the Magna Carta and the Rule of Law.” The event is sponsored by the Historical Society of the U.S. District Court for the Southern District of Indiana, the Indiana State and Terre Haute bar associations, and the U.S. District Court for the Southern District of Indiana.

RES GESTÆ • JULY/AUGUST 2015

Chief Justice of Indiana Loretta H. Rush will be among the notable speakers participating in this event. She will offer her reflections on the Magna Carta and is expected to answer questions from the audience. Also participating in the symposium will be Frank Sullivan Jr., a former member of the Indiana Supreme Court and now a professor at I.U. Robert H. McKinney School of Law. Sullivan planned to travel this summer to Runnymede as part of the ABA’s commemoration of the 800th anniversary of the Magna Carta, and he will share highlights of that event at the symposium. Jon B. Laramore, executive director of Indiana Legal Services, will moderate a panel titled “The Magna Carta and the Rule of Law Today” that will include Judge Jane E. Magnus-Stinson, U.S. District Court, Southern District of Indiana; Josh J. Minkler,

U.S. Attorney, Southern District of Indiana; Judge Lakshmi Y. Reddy, Vigo Superior Court; and Terre Haute attorney Jessie A. Cook. Steven A. Stofferahn, Ph.D., associate professor of history, Indiana State University, will discuss myths and truths of the Magna Carta, and Doria Lynch, court historian for the Southern District of Indiana, will discuss the Magna Carta triptych and the history of the old federal courthouse in Terre Haute. “This is going to be a dynamic symposium,” said U.S. Magistrate Judge Tim A. Baker, one of the symposium’s co-chairs. “We have assembled an amazing array of talented and interesting speakers who will share their considerable knowledge with the audience. I am very much looking forward to this event.” Baker noted that the seminar concludes with Chief Justice Rush’s remarks, followed by a reception at 4:30 p.m. for those in attendance. Rounding out the program will be remarks by Indiana State University President Daniel J. Bradley; Indiana State Bar Association President Jeff R. Hawkins; Terre Haute Bar Association President Brittany E. Bennett; and Craig M. McKee, a Terre Haute attorney and parttime U.S. magistrate judge in the Southern District of Indiana. The symposium organizers are applying for 3 hours of CLE credit for the program. Seating for the symposium is limited. Anyone interested in registering for the symposium may contact the Terre Haute Bar Association by emailing Brittany Bennett (bebennett@ first-online.com). The complete symposium agenda can be found at www.insd.uscourts.gov. For more information, contact Bennett or Lynch (Doria_Lynch@insd. uscourts.gov or 317/229-3729).


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Magna Carta, a symbol of liberty

T

his June marked the 800th anniversary of Magna Carta. You might recall from school history classes that Magna Carta is a foundational document in the development of individual liberty and the rule of law. King John of England, facing an epic showdown at Runnymede just outside London with the barons of his kingdom in 1215, was pressured to sign Magna Carta (also called the “Great Charter”) that acknowledged limits on his power. Magna Carta provided protections against illegal imprisonment and taxation and afforded access to swift justice. It stands as the most significant early codification of individual liberty and limitations upon government.

celebrating on July 4 the signing of our own Declaration of Independence, which causes us to reflect on the formation of our constitutional government in 1787 with its Bill of Rights of 1791, a direct descendent of Magna Carta. During the celebrations of summer, it’s worthwhile to

remember the Great Charter and consider with appreciation that it began the path toward liberty and justice for all. – Indiana Attorney General Gregory F. Zoeller

King John was a tyrant who wronged his subjects and refused to be held accountable in his own courts. Magna Carta codified ancient limits on the king’s power and confirmed the idea that “no man is above the law,” the bedrock concept of American government today. While elements of sovereign immunity remain in our legal system today that limit claims against the government as a protection for taxpayers, the sealing of Magna Carta helped change the paradigm going forward. Over the years Magna Carta has taken on a symbolic importance well beyond the document’s original limited purpose and serves as a rallying cry against tyranny and oppression in any form. Constitutional debates that take place today arise in part from the assertion of individual liberty in medieval England eight centuries ago. It’s fitting that we observed the 800th birthday of Magna Carta in June as that event segued into

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Opinion No. 2 of 2015

T ATTORNEY ETHICS

his formal opinion is disseminated in accordance with the charge of the ISBA Legal Ethics Committee and is advisory in nature. It is intended to guide the membership of the Indiana State Bar Association and does not have the force of law.

Issue If a lawyer learns, while representing a client, that a child is a victim of abuse or neglect, must the lawyer make a report to the Indiana Department of Child Services or local law enforcement?

Brief answer Lawyers must report information relating to child abuse or neglect if they believe it necessary “to prevent reasonably certain death or substantial bodily harm,” regardless of the client’s wishes. However, a lawyer may not report

Lawyer’s duty to report child abuse and Rule 1.6 duty of confidentiality information of lesser harm absent the client’s consent.

Analysis The conflict between Indiana’s mandatory reporting statute and the duty of confidentiality Lawyers, particularly those who practice in the family law arena, may encounter information relating to child abuse and neglect, from the trivial to the horrifying, and allegedly perpetrated both by their clients and others. In ordinary circumstances, of course, a lawyer generally may not “reveal information relating to representation of a client … .”1 But the Indiana Code broadly requires any “individual who has reason to believe that a child is a

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24

RES GESTÆ • JULY/AUGUST 2015

victim of child abuse or neglect” to “immediately make an oral report to (1) the department [of Child Services] or (2) the local law enforcement agency.”2 Failure to do so is a Class B misdemeanor.3 The statute is broad and, unlike some other states, does not except lawyers from the reporting requirement.4 At least some aspects of this broad command seem intentional. The General Assembly could reasonably conclude that the costs of over-reporting child abuse and neglect are less than those of underreporting, particularly given the nightmare scenario – a child suffering harm merely because someone “didn’t want to get involved.” But for the vast majority of allegations of untoward parenting that become known to a lawyer, the reporting statute conflicts with a lawyer’s duty of confidentiality. It is no answer to say that a lawyer should prevail on her client to report the abuse or neglect. First, the mandatory reporting statute requires the report to occur “immediately,” and the Supreme Court has held that a four-hour delay in reporting, for purposes of conducting an “investigation” into an allegation’s veracity, violated the statute.5 Second, as is discussed more fully below, a client’s reluctance to report abuse, even that apparently perpetrated by others, might be legitimate. It is likewise no answer to say that the lawyer is not subject to the mandatory reporting statute because the lawyer has no direct or firsthand knowledge of the abuse or neglect, so that even if the client has an obligation to report, the lawyer does not. A “reason to believe” abuse or neglect has occurred


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is defined only as “evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected.”6 Indeed, in Gilliand v. State,7 female high school volleyball players told their parents that an older male coach had given them “foot rubs” and also reported instances of “lotion being rubbed on backs; some textings; [and] hanging out with the girls.”8 The parents in turn reported the allegations to the athletic director, who did not make a report to the Department of Child Services or local law enforcement. The Court of Appeals affirmed the trial court’s denial of the athletic director’s Motion to Dismiss the criminal failure to report charge against him. Gilliand seems to make clear, therefore, that there is no “hearsay” exception to the mandatory reporting law. There is, then, a conflict between the lawyer’s ethical duty to keep silent and the apparent statutory duty to speak,9 one the Committee, consistent with its mission, addresses here. However, despite its substantial agreement with every other state bar ethics committee facing this topic, the ISBA Legal Ethics Committee notes, as have others,10 that the question is a difficult one on which reasonable, conscientious lawyers can disagree. The Committee cautions the reader that the Indiana Supreme Court is the final authority on both Indiana law and the professional conduct of Indiana lawyers.

its Rules of Professional Conduct control over conflicting legislation. Article III of the Indiana Constitution provides that “[t]he powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another.” The Constitution further provides that the Indiana Supreme Court has jurisdiction over attorney “discipline or disbarment.”11 It is this authority that gives the Supreme Court the power to regulate the attorney-client relationship through its Rules of Professional Conduct.12 As above, those Rules delineate both a general principle of confidentiality, with an exception when necessary “to prevent reasonably

certain death or substantial bodily harm.” The Committee agrees with the Kentucky Bar Association’s similar constitutional analysis: “… the Court, in Rule 1.6, has given lawyers discretion in these scenarios … a holding that the [mandatory reporting] statute overrides this grant of discretion would violate the separation of powers.”13 Indeed, requiring lawyers to protect their client’s confidences likewise protects the attorney-client relationship – at a time when it is most needed. Comment [2] to Rule 1.6 broadly states: A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. … This contributes to the trust that is the hallmark of the client-lawyer relationship. The client

(continued on page 27)

For the following constitutional, pragmatic and statutory reasons, the Committee believes the lawyer’s duty of confidentiality is generally paramount over the general duty to report. Initially, the Committee notes that, given the Supreme Court’s authority over the legal profession, RES GESTÆ • JULY/AUGUST 2015

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ATTORNEY ETHICS continued from page 25 is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. …

her batterer, in placing the children in foster care; Mother might even be subject to criminal prosecution for “subjecting” her children to the harm.17 Such an outcome would certainly discourage future domestic violence victims from seeking protection.

If attorneys are mandatory reporters, this “fundamental principle” is undermined regardless of when the lawyer discloses the potential for reporting. If the lawyer informs the client that reports of abuse or neglect are subject to disclosure, the client will likely withhold such information, to the detriment of everyone involved. If the lawyer waits for such a disclosure, then reports it over the client’s objection, that betrayal, in the client’s eyes, will likely result in irreversible harm to the client’s relationship with any attorney – to the client’s, and potentially the children’s, detriment.14 As before, the Committee agrees with the reasoning of the Kentucky Bar Association in reaching a similar conclusion: “… it would greatly hamper attorneys acting as counsel for accused if all client communications were subject to a superior obligation to disclose.”15

The Rules’ approach, on the other hand, would allow the attorney to make a commonsense, reasonable determination of whether the children will be subject to “reasonably certain death or substantial bodily harm,” and only disclose to prevent that harm.

The harm of disclosure can best be understood by a commonly occurring example: A domestic violence victim with children consults a legal services attorney, detailing the abuse she has endured, in the course of seeking advice on obtaining a protective order. Instead, the legal services attorney, based on the mandatory reporting statute, immediately notifies the Department of Child Services of Mother’s disclosures. As subjecting children to domestic violence indubitably subjects them to harm,16 DCS would be fully justified, if they questioned Mother’s commitment to leaving

As the above scenario suggests, a lawyer’s duty to keep confidential information relating to the representation extends not only to information about the client’s conduct, but other information relating to the representation, including the conduct of others. The lawyer’s duty of confidentiality is much broader than the attorney-client privilege and can even extend to

matters that are part of the public record in a case.18 Lawyers, of course, are not alone in reconciling their traditional duty of confidentiality with the duty to report child abuse.19 In the only reported case involving such a scenario, a religious institution terminated a rabbi for disclosing a congregation member’s confidences. Unfortunately, the rabbi proceeded pro se, and the Court of Appeals, in a decision in which all three judges wrote opinions, did not reach the issue directly.20 Judge Vaidik, however, in a concurring opinion, noted that “[f]ailure to report child abuse is a criminal offense. … This law does not exempt spiritual leaders from reporting . …”21 Indeed, it does not; in fact, the General Assembly specifically purported to abrogate numerous common-law privileges as part of the (continued on page 28)

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ATTORNEY ETHICS continued from page 27 mandatory reporting statute.22 Significantly, however, the lawyerclient privilege is not among them. The Committee again agrees with Kentucky Bar Opinion E-360; noting the attorney-client privilege’s similar absence from that state’s abrogation statute, the Kentucky Bar Association concluded: “… it would appear the above quoted language was intended to inform us, in a roundabout way, that lawyers are not required to report abuse or neglect if reporting would violate the attorney-client privilege.”23

Mandatory duty to report in serious cases

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Notwithstanding the above, the Committee believes a lawyer must report that a child is a victim of abuse or neglect “to prevent reasonably certain death or substantial bodily harm.” Initially, the constitutional conflict mentioned above is no longer present, as the Supreme Court, through the Rules of Professional Conduct, specifically authorizes lawyers to disclose client information in such situations.24 More significantly, while the prudential concerns (harm to the attorney-client relationship chief among them) remain, Rule 1.6 “recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm.”25 The reasons for “exempting” attorneys from the general reporting rule being, in such situations, either nullified or substantially negated, the general reporting requirement applies, and lawyers must report.

Conclusion Concurring in Ballaban v. Bloomington Jewish Community, Chief Judge Vaidik wrote: Children are notoriously reticent to report abuse. When the victims and their loved ones do confide in relatives, teachers, ministers, counselors, medical doctors, or other adults, the legislature has determined that it is a crime for those adults to fail to report the abuse to the authorities. … This reporting law is designed to, and does, protect children from future abuse.26

The Committee agrees; and if disclosure is reasonably necessary “to prevent reasonably certain death or substantial bodily harm,” lawyers must comply with the mandatory reporting statute to prevent the overriding harm to children. But in any other situation, the Committee agrees with Prof. Robert P. Mosteller: Lawyers are rarely among the first to learn of abuse, and the net loss of information occasioned by the privilege is relatively minimal as it is the privilege’s very promise of confidentiality that encourages the initial candid and damaging revelation. Overall, the precedent set for lawyers as reporters of crime and as informants on their clients, although capable of being limited to the child abuse area, will likely have far-reaching, unfortunate consequences that outweigh the beneficial effects of potentially increased reporting in combating the horror of child abuse.27

The Committee concludes that, absent taking action “to prevent reasonably certain death or substantial bodily harm,” lawyers must maintain their longstanding duty of confidentiality. 1. Indiana Rule of Professional Conduct 1.6(a). 2. Indiana Code §§ 31-33-5-1 and 5. 3. Ind. Code §31-33-22-1(a). 4. See U.S. Dept. of Health & Human Svcs., Child Welfare Information Gateway, “Mandatory Reporters of Child Abuse and Neglect” 3, (“Most states expressly require reporting despite a claim of privilege,

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but “[t]he attorney-client privilege is most commonly affirmed.”) Accessible at https://www.childwelfare.gov/systemwide/ laws_policies/statutes/manda.cfm. 5. Smith v. State, 8 N.E.3d 668 (Ind. 2014). 6. Ind. Code §31-9-2-101. 7. 979 N.E.2d 1049 (Ind. Ct. App. 2012). 8. Id. at 1052. 9. See also Daymude v. State, 540 N.E.2d 1263, 1265 (Ind. Ct. App. 1989) (“[I]n Indiana ‘any individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report’ as required by statute [emphasis added]. Thus, this language and the physician-patient privilege place conflicting duties upon a physician who learns of child abuse during the course of a physician-patient relationship.”) (citation omitted) (emphasis, as noted, in original). 10. Donald R. Lundberg, “Mandatory Child Abuse Reporting by Lawyers,” Res Gestae, Dec. 2011 at 31. 11. Ind. Const. Art. VII, sec. 4 (“The Supreme Court shall have no original jurisdiction except in admission to the practice of law; discipline or disbarment of those admitted; the unauthorized practice of law; discipline, removal and retirement of justices and judges; supervision of the exercise of jurisdiction by the other courts of the State; and issuance of writs necessary or appropriate in aid of its jurisdiction. …”) 12. See, e.g., Order Amending Indiana Rules for Professional Conduct, 92S00-1401-MS-57 (Sep. 2, 2014). 13. Kentucky Bar Ass’n Ethics Opinion KBA E-360 at 2 (1993) (citing Indianapolis Op. 1-1986). See also Williams v. State, 681 N.E.2d 195, 200 n. 6 (Ind. 1997) (citation omitted) (“To the extent there are any differences” between evidentiary statutes and the Indiana Rules of Evidence, the Rules of Evidence control); Nebraska Attorney General Op. No. 207 at 5 (1982), child abuse statute’s “curtailment of the common law attorney/client privilege … would be difficult to defend as to constitutionality.” For this reason, the Committee does not believe that the exception to confidentiality “to comply with other law,” Ind. R. Prof. Cond. 1.6(b)(6), resolves the issue, nor does it believe that Ind. Code §31-33-6-1, which provides that reporters are “immune from any civil or criminal liability that might otherwise be imposed” because of their reporting, would not in and of itself preclude a disciplinary action for violating confidentiality by reporting.

18. In re Anonymous, 932 N.E.2d 671, 674 (Ind. 2010).

24. Ind. R. Prof. Cond. 1.6(b)(1).

19. E.g., State v. I.T., 4 N.E.2d 1139 (Ind. Ct. App. 2014) (therapists), Devore v. State, 658 N.E.2d 657, 658 (Ind. Ct. App.1995), reh’g denied, trans. denied (health care workers).

26. Ballaban, 982 N.E.3d 329, 341-42 (concurring opinion) (citations omitted).

25. Comment [6] to Ind. R. Prof. Cond. 1.6.

20. Ballaban v. Bloomington Jewish Community, 982 N.E.2d 329 (Ind. Ct. App. 2013). 21. Id. at 341-342 (concurring opinion). 22. Ind. Code §31-32-11-1. 23. KBA E-360 at p. 2.

16. See In re E.M., 4 N.E.3d 636 (Ind. 2014). 17. See Ind. Code §35-46-1-4(a)(1) (defining criminal Neglect of a Dependent as placing “the dependent in a situation that endangers the dependent’s life or health”); but see Patterson v. State, 979 N.E.2d 1066 (Ind. Ct. App. 2012) (holding that a protected person cannot be held criminally liable for “aiding” violation of a protective order).

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14. Megan M. Smith, “Causing Conflict: Indiana’s Mandatory Reporting Laws in the Context of Juvenile Defense,” 11 Ind. Health L. Rev. 439 (2014). 15. KBA E-360 at 2 (citing Indianapolis Op. 1-1986).

27. “Child Abuse Reporting Law and AttorneyClient Confidences: The Reality and Specter of Lawyer as Informant,” 42 Duke L. J. 203, 207 (1992).

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RG 07-08.15_RG 09.05 7/27/15 11:18 AM Page 31

By Donald R. Lundberg

Lawyer advertising and client file rights

Lawyer advertising Lawyer advertising is the lawof-lawyering topic that keeps on giving, in part because the standards give imprecise guidance, yet from time to time a lawyer faces formal discipline for having failed to comply with them. I have written before about this topic, most recently about a case that I viewed as a missed opportunity to provide greater guidance to the bar. Lundberg, “Law Tiger, Hidden Dragon: New Uncertainties with Lawyer Advertising,” Vol. 57, No. 10 Res Gestae 23 (June 2014). Lawyer advertising regulation has spawned recent, significant federal court litigation, although not in Indiana, raising First Amendment challenges. See, Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010); Public Citizen v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011); Harrell v. The Florida Bar, 915 F.Supp.2d 1285 (M.D. Fla. 2011); Searcy v. The Florida Bar, 2013 WL 6493683 (N.D. Fla. Dec. 11, 2013); Rubenstein v. The Florida Bar, 2014 WL 6979574 (S.D. Fla. Dec. 9, 2014). On June 22, the Association of Professional Responsibility Lawyers (“APRL”) issued its 2015 Report of the Regulation of Lawyer Advertising Committee. http:// aprl.net/publications/downloads/ APRL_2015_Lawyer-AdvertisingReport_06-22-15.pdf. For those

of you unfamiliar with that organization, APRL is made up of a diverse group of practicing lawyers and academics who focus on the law of lawyering. The ad hoc Regulation of Lawyer Advertising Committee was made up of a distinguished group of lawyers from around the country, including a liaison from the national lawyer regulators’ organization, the National Organization of Bar Counsel. The APRL Report is an important addition to the literature on lawyer advertising regulation, in part because it was partially based on a survey of regulators in the 50 states plus the District of Columbia. Thirty-four of the 51 jurisdictions responded. It does not say whether Indiana was one of the responding jurisdictions. The survey asked questions about the source and frequency of lawyer advertising complaints, how regulators handled such complaints, whether jurisdictions monitored lawyer advertising even if no one complained, and whether actual consumer or client harm was an element of lawyer advertising disciplinary decisions. The survey form was included in an appendix to the Report, although state-by-state results were not. The survey results were summarized as follows: • Lawyer advertising complaints are rare. • Other lawyers, not consumers, complained most about lawyer advertising (73 percent versus 3 percent). • Formal discipline for advertising violations is rare; they are mostly handled informally. • Few jurisdictions preemptively monitor lawyer advertisements. • Most formal discipline for advertising violations would be punishable for violating Rule of Professional Conduct 8.4(c)’s definition of professional misconduct as including conduct involving dishonesty, fraud, deceit or misrepresentation.

In 2008, when I was on the regulatory side, I conducted a somewhat similar survey that was discussed in the Report. Lundberg, “Some Thoughts About Regulating Lawyer Advertising,” 34th Nat’l Conference on Prof’l Responsibility (May 28-31, 2008). Twenty-two of my fellow regulators responded to my survey. In general, I found that while there was disagreement about how lawyer advertising should be regulated, most jurisdictions fell on the non-interventionist end of the lawyer advertising regulation spectrum. I commented that there was dubious correlation between advertising regulation and protecting the public from tangible harm. In fact, I observed that regulators feel best about their work when they feel confident that they are protecting the public. They tend to shy away from regulating lawyer advertising because the very people who they are supposed to be protecting don’t seem to care. Or else, if they must devote resources to lawyer advertising regulation, it tends to be demoralizing work because of its remoteness from tangible public protection. The APRL Report did not just describe the current state of affairs in the regulation of lawyer advertising, it suggested different substantive and procedural approaches to the issue. Substantively, it recommended doing away with all blackletter rules on lawyer advertising except for the general prohibition in Rule 7.1 on false and misleading communications about lawyer services. The other advertising rules (Rules 7.2, 7.4 and 7.5) would be eliminated with the comments to Rule 7.1 expanded to include much of the conDonald R. Lundberg tent of the eliminated rules and their comments. Barnes & Thornburg LLP

ETHICS CURBSTONE

S

ome recent developments on the national stage provide commonsense insight into two perennial issues faced by lawyers: lawyer advertising and what file materials lawyers must provide to clients when the lawyer stops representing the client. I have written on both topics before, but there is always more to say – especially when it’s good stuff that sheds light on these two important topics.

(continued on page 32)

Indianapolis, Ind. donald.lundberg@BTLaw.com

RES GESTÆ • JULY/AUGUST 2015

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ETHICS CURBSTONE continued from page 31 In sum, the Report suggests that it is not a useful investment of scarce resources to use formal discipline to deal with advertising concerns that don’t involve outright lying or that only relate to theoretical or potential consumer harm. Procedurally, the Report recommended a non-disciplinary approach to lawyer regulation that would require a notice to the allegedly offending lawyer, pointing out advertising deficiencies and giving the lawyer an opportunity to correct them. The matter would be over if the lawyer made the correction. If not, the regulator could refer it to formal discipline. The Report suggests that the resources spent in pursuing formal discipline in lawyer advertising cases could be more effectively used to encourage lawyers to correct advertising that crosses the line. After all, the vast majority of lawyers are interested in complying with the rules, not challenging them. Think how many regulatory resources would have been freed up for other purposes from the Law Tigers case alone.

Our Disciplinary Commission already has the discretion to handle lawyer advertising matters, using an alternative procedure to formal discipline. A formalized, non-disciplinary approach would make that process more transparent to the bar.

pursuit. But when the regulatory pie is largely fixed, every hour and dollar spent regulating lawyer advertising is an hour and dollar less protecting the public on matters it really cares about.

The APRL Report is a good catalyst for a serious discussion about lawyer advertising. Ever since the Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 748 (1976), held that regulation of lawyer advertising was circumscribed by the First Amendment protections for commercial speech, there has been a push and pull between regulators and the bar over where the line between public protection and free speech should be drawn. What is curious is that the public seems to have stayed away from the debate in droves, communicating by its silence that it is not all that interested in being protected. Constitutional considerations aside, in a world of infinite resources, I suppose spending time and resources regulating lawyer advertising is a harmless enough

In Indiana, we struggle with a lack of clear guidance concerning client file rights. I have written on this topic before and suggested that our case authority is circular, telling lawyers that the client is entitled to receive what the client is entitled to receive; thereby begging the ultimate question: what file materials are clients entitled to receive? “File, File, Who’s Got the File? Client Rights to Return of Property,” Vol. 51, No. 2 Res Gestae 29 (September 2007). The American Bar Association Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 471, “Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled,” on July 1, collecting the various approaches to the question of client file rights and adding, in my opinion, a commonsense perspective on the issue. The opinion is available at www.americanbar. org/content/dam/aba/administrative/professional_responsibility/ aba_formal_opinion_471. authcheckdam.pdf for a year without charge and thereafter by purchase from the ABA.

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RES GESTÆ • JULY/AUGUST 2015

Client file rights

The question of client file rights is often driven by state law, not rules of ethics. But when state law is not clear, this opinion gives guidance that strikes a good balance between client and lawyer rights and obligations. The opinion was written with the assumption that the client has paid the lawyer’s fees at the time the client asks for the file. This removes from the equation the lawyer’s right, recognized under


RG 07-08.15_RG 09.05 7/27/15 11:18 AM Page 33

Indiana common law, to assert a retaining lien on the client’s file. Initially, the opinion describes the two prevailing approaches to client file rights. The first and, according to the opinion, the majority view is the “entire file” approach. Under this approach, the client is entitled to the return of original property plus a copy of the lawyer’s entire file. There are exceptions, but not many. These include materials that would violate an attorney-eyes-only protective order if delivered to the client; materials that consist of the lawyer’s assessment of the client; materials that are in the nature of internal firm administrative communications; and materials that, if released to the client, could endanger the client or others. The other approach is the “end product” approach. Under this approach, the client is entitled to the return of the client’s own

property plus the end products of the lawyer’s work: correspondence on the client’s behalf, reports and memoranda, contracts, wills, pleadings and the like. But the lawyer is not required to provide the client with the materials developed to create the end product, such as legal research, interim drafts, lawyer notes, etc. As indicated, there is not good Indiana authority on point. This opinion advances the ball by taking a more nuanced approach to the question. It takes its cue from the injunction in Rule of Professional Conduct 1.16(d) that a lawyer must to the extent reasonably practicable protect a client’s interest at the conclusion of a legal representation. Thus, “at a minimum a lawyer’s obligation under the Rules reasonably gives rise to an entitlement to those materials that would likely harm the client’s interest if not provided.” Expanding on that

theme, what the lawyer must provide the client will generally be different if the representation is complete, compared to if the representation is going to continue in the hands of another lawyer. In the former instance, the client should generally be entitled to the end product of the lawyer’s work since that is generally what matters once the work is complete. In the latter instance, the client is entitled to what is akin to the entire file so the value of the lawyer’s work, for which the client has paid, can be provided to successor counsel to minimize the new lawyer’s up-to-speed time. This opinion strikes a reasonable balance grounded in the core principle of minimizing harm to the client when a legal representation ends. For states, like Indiana, it is a thoughtful opinion to be considered as our courts chart their way through this territory.

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By Jane Dall Wilson and Donald E. Morgan

Appellate civil case law update

RECENT DECISIONS 3/15

I

n March, the Indiana Supreme Court issued opinions in eight civil cases and granted transfer in one additional civil case, all summarized below. The Indiana Court of Appeals issued a total of 58 opinions in civil matters (not including juvenile matters), 25 of which were published decisions. Three of the Court of Appeals published decisions are summarized below. Full text of all Indiana appellate court decisions rendered during the month of March, including those issued not-for-publication, are available via Casemaker at www.inbar.org or the Indiana Courts website, www.in.gov/ judiciary/opinions.

SUPREME COURT Factual dispute precluded summary judgment on insurance agent’s duty to insured

Jane Dall Wilson Faegre Baker Daniels LLP Indianapolis, Ind. jane.wilson@FaegreBD.com

Donald E. Morgan Faegre Baker Daniels LLP Indianapolis, Ind. donald.morgan@FaegreBD.com

34

After a fire destroyed its office, an insured discovered the office contents policy it had carried for 30 years left a $500,000 shortfall. It then sued its longtime insurance agent, claiming breach of a “special relationship” under which the agent had a duty to advise the insured about the adequacy of its coverage. In Indiana Restorative Dentistry, P.C. v. Laven Insurance Agency, Inc., 27 N.E.3d 260 (Ind. 2015) (Rush, C.J.), the Supreme Court held that factual questions regarding the nature of the insured’s relationship with its insurance agent precluded summary judgment. The Court noted four non-exhaustive

RES GESTÆ • JULY/AUGUST 2015

factors that the Court of Appeals has consistently applied to determine whether an insurance agent’s relationship with an insured is such that the agent assumes a duty to advise (as distinct from a duty to procure). Those factors include whether the agent: • exercises broad discretion to service the insured’s needs; • counsels the insured regarding specialized coverage; • holds itself out as a highly skilled expert (coupled with the insured’s reliance on that expertise); and • receives compensation above the customary premium for providing expert advice.

Applying those factors, the Court concluded that the designated evidence supported conflicting reasonable inferences. On the one hand, the agent elicited information about the insured’s needs through an annual questionnaire, the policy covered highly specialized dental equipment, and the agency held itself out as an expert in dental insurance. On the other hand, the insured continued to decide its own policy limits on the annual questionnaire, the policy was a run-ofthe-mill business personal property policy (despite covering specialized equipment), and the agency’s selfproclaimed expertise appeared in generic promotional materials. Given these facts, the Court held that summary judgment was improper. In the balance of the opinion, the Court summarily affirmed the Court of Appeals decision that factual issues precluded summary judgment on the insured’s vicarious liability claim against the insurer and held that, although an insured may bring an implied contract claim for failure to procure full coverage, the designated evidence did not establish the elements required to infer a meeting of the minds on that issue.

Trial court instructed to determine damages for breach of noncompetition clause In Kramer v. Kramer, 27 N.E.3d 270 (Ind. 2015) (per curiam), brothers Thomas and Mark signed an operating agreement in connection with a business that bought, renovated and leased residential rental properties. The brothers agreed not to conduct similar activities independently. Thomas later alleged that Mark breached the noncompetition clause by purchasing three properties independently. After a bench trial, the trial court determined that Mark breached the agreement and awarded Thomas $33,043.49. Thomas appealed, claiming the trial court erred by not explicitly finding a breach for each of the three purchases and by awarding inadequate damages. The Court of Appeals affirmed in part, reversed in part, and remanded with instructions to find that Mark breached the agreement as to all three purchases and to award $333,156 in damages. Mark sought transfer concerning the award of damages. In a threeparagraph per curiam opinion, the Indiana Supreme Court summarily affirmed the Court of Appeals decision that Mark breached the noncompetition clause as to all three purchases but remanded to the trial court to determine damages.

University properly took interlocutory appeal from order requiring release of transcript In Ball State University v. Irons, 27 N.E.3d 717 (Ind. 2015) (Rucker, J.), the Supreme Court clarified that Ball State University properly took an interlocutory appeal as of right to an order requiring the University to release a student transcript notwithstanding its policy requiring payment of an unpaid tuition balance before releasing any transcript. This case arose in the context of a


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The Supreme Court held that Ball State could take an interlocutory appeal as of right because its transcript policy created a common law lien. The trial court’s order directing Ball State to release the transcript (and thereby forfeit the lien) was an order that carried financial and legal consequences akin to those found in final judgments and therefore was immediately appealable under Appellate Rule 14(A)(3). The Supreme Court next found that Ball State was not properly joined as an indispensable defendant. Ball State’s participation was not required to show unpaid fees, and Mother failed to show that its presence was necessary

Civil commitment standard requires clear and convincing evidence of dangerousness or grave disability In the Matter of the Civil Commitment of T.K. v. Department of Veterans Affairs, 27 N.E.3d 271 (Ind. 2015) (Dickson, J.), concerns an application of the standard for civil commitment. To obtain an involuntary regular commitment, Indiana Code section 12-26-2-5(e) requires a petitioner to prove by “clear and convincing evidence that (1) the individual is mentally ill and

either dangerous or gravely disabled; and (2) detention or commitment of that individual is appropriate.” The trial court determined that T.K. was mentally ill and both dangerous and gravely disabled, and the Court of Appeals affirmed. The Supreme Court granted transfer and reversed. As an initial matter, the Supreme Court emphasized that involuntary commitment requires clear and convincing evidence satisfying the required elements. The Court disapproved of several recent Court of Appeals decisions that recited the proper standard but applied a less rigorous review. The Court then turned to the evidence before the trial court. A psychiatry resident had testified that T.K. was diagnosed with “Chronic Paranoid Schizophrenia” and “Paranoid Personality (continued on page 37)

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The trial court granted Mother’s motion to join Ball State as an indispensable party under Trial Rule 19 and ordered Ball State to release the transcript so that future college expenses could be determined. Ball State appealed. The Court of Appeals dismissed the appeal in a divided opinion, holding that it lacked jurisdiction because Ball State had no right to take an interlocutory appeal. The Supreme Court granted transfer and reversed.

to establish future expenses at IU Northwest. Nor did the evidence suggest that Mother attempted to get that information from IU Northwest or needed Ball State to put that information in the record. Thus, the Supreme Court directed the trial court to dismiss Ball State from the action.

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post-dissolution proceeding. Mother filed a petition to modify support, seeking to have Father pay postsecondary educational expenses. Daughter had attended Ball State for the 2011-12 school year but withdrew in February or March 2012 with an unpaid tuition bill in excess of $9,000. In order to enroll at Indiana University Northwest, Daughter needed a copy of her official transcript from Ball State. After Ball State refused to release her transcript without payment of the outstanding tuition bill, Mother sought to add Ball State to the dissolution proceeding and sought an order requiring release of the transcript. Ball State moved to dismiss.

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RECENT DECISIONS 3/15 continued from page 35 Disorder.” T.K. did not challenge either diagnosis. Rather, he challenged whether the evidence supported the trial court’s conclusions that he was a danger to himself or others and that he was gravely disabled. Although the resident testified that he “personally did not believe that [T.K.] would be a danger to self or others,” he deferred to others with knowledge of T.K.’s ammunitions experience. He also testified that T.K. is gravely disabled because he has continuously refused medical treatment, denied a mental problem, and has been an aggressor in several areas of his life. T.K. testified that he had a job, rented a home, owned two vehicles and made payments on a third, received disability payments, and had not taken medication for his mental illness since his last commitment ended in April 2013. He also testified that he goes to the gym regularly, does his own laundry, and maintains his home and vehicles when he is not committed. The Court held that the doctor’s personal uncertainty as to whether T.K. presented a danger to himself or others and T.K.’s refusal to admit his mental illness or take medication did not suffice to establish by clear and convincing evidence that T.K. was “either dangerous or gravely disabled.” The Court therefore reversed T.K.’s civil commitment.

Dependency requirement in bankruptcy exemption does not apply to spouse or child Indiana Code section 27-1-1214(e) exempts life insurance policies from a debtor’s bankruptcy estate if the named beneficiary is “the spouse, children, or any relative dependent upon” the debtor. Answering a certified question from the Bankruptcy Court for the Northern District of Indiana, In re Howell, 27 N.E.3d 723 (Ind. 2015)

(Rush, C.J.), holds that “dependent upon” modifies only “any relative.” Thus, spouses and children need not be the debtor’s dependents for the exemption to apply. Pointing to a series of conflicting bankruptcy court decisions construing section 27-1-12-14(e), the Court concluded that the statute is ambiguous and requires construction. But the unanimous Court easily concluded that the “dependent upon” limitation modifies only “any relative” – noting that every relevant interpretive canon supports that reading and that it therefore represents the likeliest legislative intent. First, the Court applied the presumption that all statutory language must be given meaning. Because a spouse or child is a relative of the debtor, it would be superfluous to identify them separately from “any relative” unless the legislature did not intend the “dependent upon” limitation to apply to spouses and children. Second, the Court noted Indiana’s long-established rule construing bankruptcy exemptions liberally in favor of the debtor. And finally, the Court noted that the last antecedent rule supports its construction. Under that rule, a modifying phrase typically applies only to the phrase immediately preceding it unless the modifying phrase is set off by commas. Because no comma separates “the spouse, children, or any relative” from “dependent upon,” the last antecedent rule suggests the “dependent upon” requirement does not modify “spouse” or “children.” Having answered the certified question, the Court briefly addressed the bankruptcy trustee’s argument that the Court’s construction violates Article I, Section 22 of the Indiana Constitution by creating an “unlimited exemption.” The Court acknowledged the

trustee’s concern that a debtor could gradually accumulate a significant sum of cash-value life insurance naming a wealthy adult child as beneficiary, obtain a bankruptcy discharge, and then immediately cash in the policy for the debtor’s own personal benefit. But the Court declined to depart from the statutory text to resolve a hypothetical problem, as such abuses can be addressed on an as-applied basis.

Civil forfeiture of car inappropriate because employee detained for theft was not in constructive possession of her car while it sat in a nearby parking lot An employee at a Walmart distribution center was detained when she attempted to leave work with four iPhones under her shirt. She later pled guilty to theft, and the State sought civil forfeiture of her 1996 Buick Century. In Sargent v. State, 27 N.E.3d 729 (Ind. 2015) (Rucker, J.), a divided Supreme Court reversed the forfeiture order because Sargent was not in possession of her car at the time she intended to use it to transport stolen property. She lent the car to a coworker earlier in the day, and the coworker had returned to the distribution center parking lot to pick up Sargent at the end of her shift. First addressing actual possession, the majority held that Sargent could not have actual physical possession of her car while she was inside the distribution center. It also concluded that she lacked constructive possession. Despite Sargent’s intent to maintain dominion and control over the car, her detention inside the store rendered her incapable of maintaining such control. (continued on page 38)

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RECENT DECISIONS 3/15 continued from page 37 In dissent, Justice David disagreed with the majority’s conclusion that Sargent lacked constructive possession. He pointed to her instruction to the coworker to return the car by the end of her shift as evidence that Sargent maintained dominion and control over it. Justice Massa agreed in a separate dissent in which he sharply rebuked the State for seeking forfeiture of Sargent’s 20-year-old Buick in the first place (on top of her felony prosecution and the loss of her job). According to Justice Massa, sometimes the answer to the challenge of difficult cases making bad law is exercising the discretion not to bring them in the first place.

The Education Clause of the Indiana Constitution does not require school districts to provide transportation to and from school In Hoagland v. Franklin Township Community School Corporation, 27 N.E.3d 737 (Ind. 2015) (David, J.), the Court addressed whether a school corporation may discontinue transportation services. In 2010, Franklin Township Community School Corporation discontinued transportation services for most students. During the 2011-12 school year, a private company began providing transportation services for a fee. Parents of Franklin Township students brought a class action, claiming that the school corporation violated Article 8, Section 1 of the Indiana Constitution (the Education Clause). In the trial court, two plaintiffs, Lora Hoagland and Donna Chapman, sued both Franklin School Corporation and the private transportation company with whom the school corporation contracted. Hoagland sought damages, an injunction and a declaration that the discontinuation of services was 38

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unconstitutional because it denied children an education where tuition is without charge. After the trial court certified a class, the private transportation company sought dismissal for failure to state a claim on which relief could be granted. The trial court granted the transportation company’s motion, and the Court of Appeals affirmed on interlocutory appeal. See Chapman v. Cent. Ind. Educ. Serv. Ctr., No. 49A05-1209-PL-478, Slip Op. at *2 (Ind. Ct. App. April 30, 2013). While the case against the school corporation was still pending, the General Assembly amended Indiana Code section 20-27-5-2 to provide that “no fee may be charged to a parent or student for transportation to and from school. However, a fee may be charged for transportation to and from an athletic, a social, or another school sponsored function.” Ind. Code §20-27-5-2(b). The General Assembly did not, however, amend subsection (a), which continued to provide that “... a school corporation may provide transportation for students to and from school.” Ind. Code §20-27-5-2(a) (emphasis added). Following cross-motions for summary judgment, the trial court denied plaintiffs’ motion and granted summary judgment to the school corporation. Specifically, the trial court determined that the Education Clause did not require schools to provide busing, that the Education Clause did not provide a private right of action for damages, and that the Indiana Tort Claims Act (ITCA) barred plaintiffs’ claims for failure to provide timely notice. The Court of Appeals affirmed in part and reversed in part. It agreed that the Education Clause did not provide a private right of action for damages but disagreed that the ITCA barred the plaintiffs’ constitutional claims and that the

Education Clause did not require busing (concluding that transportation to and from school was “part and parcel” of a public education). The Supreme Court granted transfer and summarily affirmed the Court of Appeals’ holding that the Education Clause does not provide a private right of action for damages and that the ITCA does not govern the plaintiffs’ constitutional claims. The Court substantively addressed only one issue – whether the Education Clause required the school corporation to provide transportation to and from school. The Supreme Court noted that the Education Clause requires the legislature “to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all,” Ind. Const. art. 8, §1, but does not provide for a free public school system. The Court pointed to its rejection of a similar argument over a century ago in a lawsuit claiming that, despite compulsory attendance requirements, many students would not be able to attend school without free transportation. State ex rel. Beard v. Jackson, 168 Ind. 384, 385, 81 N.E.62, 63 (1907). After surveying other relevant precedents and the history and text of the Education Clause, the Court concluded that it must defer to legislative judgment. Under amended Indiana Code section 20-27-5-2, the Court noted that the transportation fee charged by the private company would be prohibited by subsection (b). But subsection (a) indicated that transportation was permissive, suggesting school corporations could choose not to provide it. Turning to the Education Clause, the Court found no reason to depart from the rationale in Jackson permitting the legislature to determine whether free transportation is necessary.


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The Court also looked to a North Dakota decision construing similar arguments under a similar constitutional provision and determining that free transportation was not required. See Kadrmas v. Dickinson Public Schools, 402 N.W.2d 897 (N.D. 1987). Finally, the Court noted that the Education Clause’s plain language includes no specific provision for free transportation. The Supreme Court therefore concluded that the Education Clause does not require schools to provide transportation and affirmed summary judgment in the school corporation’s favor.

Supreme Court grants rehearing to delete problematic footnote In First American Title Insurance Co. v. Robertson, 19 N.E.3d 757 (Ind. 2014) (Rucker, J.), the Supreme Court held that First American’s failure to file the agency record as required by the Administrative Orders & Procedures Act properly resulted in dismissal of its petition for judicial review. In a footnote, the Court summarily affirmed other portions of the Court of Appeals’ opinion. That footnote included the following clause: “We also summarily affirm that portion of the Court of Appeals opinion declaring the Commissioner’s hearing order untimely and void ... .” The Commissioner of the Indiana Department of Insurance sought rehearing, noting that there is “substantial tension, if not outright conflict” between the Court’s holding that First American’s petition was properly dismissed and its summary affirmance of the portion of the Court of Appeals opinion holding that the Commissioner’s hearing order was untimely and void. In First American Title Insurance Co. v. Robertson, 27 N.E.3d 768 (Ind. 2015) (Rucker, J.),

the Court granted rehearing for the limited purpose of deleting the quoted clause from its earlier decision.

TRANSFER GRANTS The Supreme Court granted transfer in, and simultaneously decided, the Ball State, Kramer and In re T.K. cases summarized above. The Court also granted emergency transfer under Appellate Rule 56(A) in Myers v. Crouse-Hinds Division of Cooper Industries, Inc., Nos. 49S00-1502-MI-119 and 49A021502-MI-66.

SELECTED COURT OF APPEALS DECISIONS Bar owner’s duty does not turn on foreseeability Three friends socializing at a Marion bar were shot by another patron who thought one of them made a derogatory remark about

his wife. In Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 28 N.E.3d 310 (Ind. Ct. App. 2015) (Najam, J.) (petition for rehearing pending), the Court of Appeals held that the bar owed its business invitees a duty of reasonable care to protect them from injury caused by other patrons regardless of the foreseeability of the injury. The court surveyed Indiana’s lengthy – and sometimes inconsistent – premises liability case law and held that an individualized determination whether a duty existed was unnecessary because a landowner’s general duty to protect patrons is well settled. The court concluded that the foreseeability of one patron shooting another is not relevant to the existence of the duty but to the jury’s determination whether that duty was breached. (continued on page 40)

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RECENT DECISIONS 3/15 continued from page 39 State must be added as party in case addressing waterfront property rights On Nov. 12, 2012, the Long Beach Town Council enacted a resolution that a portion of the Lake Michigan shoreline was subject to public ownership or use. The Town based the resolution on positions the Indiana Department of Natural Resources had taken in its publications. An association of private property owners brought a lawsuit seeking a declaration that the resolution failed to enforce their private property rights. Other parties intervened. Although the Town initially claimed that the property owners failed to join indispensable parties under Trial Rule 19 (the state of Indiana and/or its Department of Natural Resources), the case

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proceeded to summary judgment without the State’s participation. The trial court found in favor of the Town on all counts, and the property owners appealed. In LBLHA, LLC v. Town of Long Beach, 28 N.E.3d 1077 (Ind. Ct. App. 2015) (Brown, J.), the Court of Appeals concluded that the property owners’ claims might impair the State’s ability to protect its interest or the public’s interest in the lakefront. The state of Indiana, or state officials as individuals in their official capacity, should therefore have been added to the proceeding under Trial Rule 19 before resolution of the property owners’ claims. Without addressing the merits of the parties’ dispute, the Court of Appeals reversed and remanded for further proceedings with the State or appropriate state officials as parties.

Fact questions revive potential state liability in State Fair litigation For approximately a decade, the Indiana State Fair Commission rented a roof structure to cover the grandstand stage during concerts at the Indiana State Fair. Throughout that period, the Commission and Mid-America Sound followed the same procedure. Mid-America delivered the structure to the fairgrounds before the fair. After the fair, Mid-America picked up the structure and provided the Commission with a double-sided invoice containing an indemnification provision on the back. After reviewing the invoices, the Commission would sign a claim voucher to certify that the invoice was correct and “in accordance with the contract.” The parties followed this same procedure in 2011 – the year the roof structure collapsed during severe weather, killing seven and injuring dozens of others. In In re

Indiana State Fair Litigation, 28 N.E.3d 333 (Ind. Ct. App. 2015) (May, J.) (petition for transfer pending), the Court of Appeals held that fact issues regarding the enforceability and applicability of the indemnification provision precluded summary judgment in favor of the Commission. Given the parties’ lengthy course of dealing, the court declined to treat the indemnification as retroactive or unconscionable despite its placement on the reverse side of an invoice delivered after the collapse. And given the Commission’s sophistication and approval of the claim vouchers, the court also rejected the Commission’s argument that it never agreed to the indemnity. Finally, the court held that the Indiana Tort Claims Act – which applies to claims sounding in tort – could not insulate the Commission from a contractual obligation. Jane Dall Wilson is a business litigation partner at Faegre Baker Daniels LLP, where she practices appellate advocacy and litigates complex contract matters. Jane is a summa cum laude graduate of Hanover College and Notre Dame Law School. Following law school, she clerked for the Hon. Kenneth F. Ripple, U.S. Court of Appeals for the Seventh Circuit, and joined the firm thereafter. Contact Jane at 317/2371398 or jane.wilson@FaegreBD.com. Donnie Morgan is an associate at Faegre Baker Daniels LLP, where he focuses on civil litigation and appellate advocacy. He is a graduate of Indiana University with highest distinction and an Order of the Coif graduate of UC Berkeley’s Boalt Hall School of Law. During law school, Donnie served as a judicial extern for Judge John T. Noonan of the U.S. Court of Appeals for the Ninth Circuit and later for Judge Saundra Brown Armstrong of the U.S. District Court for the Northern District of California. Contact Donnie at 317/237-8203 or donald.morgan@ FaegreBD.com.


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Commercial courts in the works confidence and predictability – which helps ensure the competitiveness of Indiana’s business environment.” “It’s not just about businesses,” explained the working group chair, Allen Superior Court Judge Craig Bobay. “We want to free up court resources by removing timeconsuming business cases from the regular docket. Other cases, like child custody matters, could be heard more promptly when a complex business case is handled efficiently.” In addition to businesses and legal experts, lawmakers will collaborate on developing the framework for the courts. “This is a critical step in creating a more efficient court system in Indiana, and I applaud Chief Justice Rush on her leadership,” said Rep. Tom Washburne, a member of the working group. “This initiative will free up

Indiana’s judicial system to better handle the complexity of modern business litigation.” Sen. John Broden will also serve on the group. “Anything we can do to further enhance the positive role Indiana’s legal system plays in fostering a strong and vibrant economy is well worth the effort,” said Sen. Broden. “Further, we know that by streamlining these complex commercial law cases, we free up our courts so they can concentrate on critical cases facing Hoosier children and families.” Commercial courts will include cases where the parties have agreed to have their dispute resolved through the specialized docket. Commercial courts in the United States began in 1993 and now exist in 22 states.

BENCH & BAR NEWS

T

he Indiana Supreme Court is formalizing plans to develop specialized trial courts to handle complex business litigation. The courts, known as commercial courts, will have specially trained judges and will play a role in modernizing the way courts handle cases. The possibility of commercial courts was first announced in January during the “State of the Judiciary.” In early June, the Court unanimously approved a plan, naming a working group to recommend policies and procedures for the courts. Chief Justice Loretta Rush explained, “I’m grateful that we have a wide range of talents on this committee. They will help us establish procedures so the courts are hearing commercial cases in 2016.” The working group membership is listed in the Supreme Court order, which is available at http://tinyurl.com/INcommercial-crts-order. Commercial courts are designed to promote efficient resolution of business disputes by reducing litigation costs and promoting earlier and more frequent settlement of cases. “Maintaining a strong legal environment is one of the goals of our Indiana Vision 2025 plan,” said Indiana Chamber President and CEO Kevin Brinegar. “Businesses locate in states where disputes are resolved with consistency and reliability. Establishing commercial courts promotes

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

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By Jack Kenney

Pat-down searches, reasonable force, other holdings

I

n March, the Indiana Supreme Court issued opinions on consent searches, sufficiency and jury instructions, while the Court of Appeals addressed pat-down searches and the Castle Doctrine.

CRIMINAL JUSTICE NOTES 3/15

Insufficient evidence for criminal trespass Running in a field about 100 yards away from a building after a security alarm has been activated looks suspicious, but the Supreme Court concluded that this evidence was insufficient to support Drakkar Willis’ criminal trespass conviction where no one saw Willis inside the building or leaving the building. Willis v. State, 27 N.E.3d 1065 (Ind. 2015). The Court acknowledged that Willis’ behavior looked suspicious and he may have had the opportunity to commit the crime, but “a reasonable inference of guilt must be more than a mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.” Id. at 1068 (quoting Mediate v. State, 498 N.E.2d 391, 392 (Ind. 1986)).

Supreme Court clarifies presumption of innocence instruction In McCowan v. State, 27 N.E.3d 760 (Ind. 2015), the Supreme Court adopted a brightline rule, stating “unequivocally and prospectively” that every criminal defendant has the absolute right to receive the following jury instruction upon request: “The presumption of innocence continues in favor of the defendant Jack Kenney throughout the trial. Director of Research You should fit the evi& Publications dence to the presumpIndiana Public tion that the defenDefender Council dant is innocent if you Indianapolis, Ind. jkenney@pdc.in.gov can reasonably do so.” 42

RES GESTÆ • JULY/AUGUST 2015

Id. at 766. In so holding, the Court clarified Robey v. State, 454 N.E.2d 1221 (Ind. 1983), which set forth two rules for instructions on the presumption of innocence, one a bright-line rule that used the above-recited language, the other a more flexible standard allowing for other instructions to cover the key elements of presumption of innocence. Without explicitly saying so, the Court disapproved of the more flexible standard in Robey. Id. at 765-66.

Entrapment defense rebutted – no police inducement In Griesemer v. State, 26 N.E.3d 606 (Ind. 2015), a prosecution for patronizing a prostitute, the State rebutted Griesemer’s entrapment defense by showing he was not induced by police to commit the offense. There is no entrapment if the State shows either: 1) there was no police inducement, or 2) the defendant was predisposed to commit the crime. Id. at 609 (citing Riley v. State, 711 N.E.2d 489 (Ind. 1999)). To rebut the inducement element, the State must prove police efforts did not produce the defendant’s prohibited conduct because those efforts lacked “a persuasive or other force.” Id. (citing Williams v. State, 412 N.E.2d 1211 (Ind. 1980)). In this case, Griesemer stared at an undercover detective posing as a prostitute, circled back in his car and stopped near her to ask if she needed a ride. The detective told him she was trying to make some money. He nodded toward his passenger seat, so she asked how much money he had. Griesemer again nodded toward the passenger seat and later said he had $20. She said she could perform a sex act for that amount, Griesemer nodded yes, and she told him to drive down the street to pick her up, where he was arrested. Id. at 607. A 3-2

majority of the Supreme Court found the undercover detective did not exert a persuasive or other force over Griesemer; instead, she merely presented him with “an opportunity to commit the offense,” which Ind. Code §35-41-3-9(b) expressly declares “does not constitute entrapment.” Id. at 610. “That the crime itself may be tempting, without more, is not inducement … . [I]f the Court were to find entrapment on these facts, it would “effectively put an end to prostitution stings.” Id. Justice Rucker, in a dissenting opinion joined by Justice Dickson, expressed his belief that the undercover detective induced Griesemer to commit the offense, noting “she was the first to mention money, the first to mention performance of a sexual act, and the first to mention trading a sexual act for money.” Id. Further, there was no evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, thus entrapment was established as a matter of law.

Valid consent to pat-down search despite police officer’s ultimatum In State v. Cunningham, 26 N.E.3d 21 (Ind. 2015), the Supreme Court held it is not inherently coercive for police to give conditional permission to step out of a vehicle during a traffic stop, subject to the motorist’s consent to a pat-down search. In this case, after a police officer properly stopped Michael Cunningham’s truck for having only one red tail lamp, Cunningham asked the officer if he could get out of the car to look at it. “The officer told Defendant ‘that was fine but I would pat him down for any weapons just for officer safety issue [sic],’ and Defendant ‘said that was fine’ and exited the vehicle.” Id. at 24. After feeling a pill bottle during the pat-down,


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the officer asked Cunningham what was in the bottle before removing it, and Cunningham told him it contained marijuana. When the officer asked if there was anything else on Cunningham’s person, Cunningham admitted there was a pipe in his truck and offered to go get it. Id. The Court found that giving Cunningham the choice between remaining in the car unsearched or being patted down as a condition of getting out was not inherently coercive. Given this “truly free choice,” the Court also rejected Cunningham’s related argument that his consent was not valid because police never told him he could refuse consent. Id. at 27. Finally, the officer’s question about the pill bottle’s contents did not coerce Cunningham into expanding the scope of consent he initially gave. The expansion “resulted from information he volunteered, without coercion from (or even leading by) the investigating officer.” Id. at 28. Justice Rucker dissented, believing the State failed to establish Cunningham’s purported consent to the pat-down was constitutionally valid. Although police can order motorists to either stay in or exit the vehicle during a traffic stop, “it goes too far to permit a police officer to be able to barter an individual’s constitutional right to be free from warrantless, unreasonable searches in exchange for the individual to verify he in fact was committing a minor traffic infraction as the officer alleged.” Id. at 30.

being placed in a police vehicle. The court noted that involuntary transportation to police headquarters might be a factor in determining whether a “seizure” has occurred. Id. at 256 (citing Buckley v. State, 886 N.E.2d 10 (Ind. Ct. App. 2008)). The police officer in this case did not ask D.Y. if he would accompany him to the station for questioning about a burglary investigation, and he did not give D.Y. the option to meet at the police station independently. Instead, he explained to D.Y. that he would be transporting him to the police station and that D.Y. was a possible suspect. Id. at 25758. Because D.Y. was a juvenile, there was no indication that the officer had contacted D.Y.’s parents, and the officer did not give any indication to D.Y. that his transportation to the station was voluntary, the court concluded that the officer “seized” D.Y., such

that he would not have felt free to leave, even though the transportation did not occur prior to the officer’s pat-down. Id. at 258. Because the officer did not have probable cause or a warrant to arrest D.Y., the seizure violated the Fourth Amendment, and his subsequent pat-down was unlawful. Thus, the firearm discovered pursuant to the unlawful search was inadmissible at D.Y.’s delinquency hearing. The court remanded with instructions to vacate true findings and D.Y.’s adjudication as a delinquent child. Id.

Right to use reasonable force to prevent public servant’s unlawful home entry Cupello v. State, 27 N.E.3d 1122 (Ind. Ct. App. 2015), involved the exercise of reasonable force pursuant to Ind. Code §35-41(continued on page 44)

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Unlawful pat-down before placement in a police car In D.Y. v. State, 28 N.E.3d 249 (Ind. Ct. App. 2015), the trial court abused its discretion in admitting into evidence a firearm obtained through a pat-down search incident to D.Y.’s unlawful arrest, prior to RES GESTÆ • JULY/AUGUST 2015

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CRIMINAL JUSTICE NOTES 3/15 continued from page 43 3-2(i)(2) to prevent or terminate an unlawful entry by a public servant into a person’s home. The statute was amended in 2012 in response to Barnes v. State, 953 N.E.2d 473 (Ind. 2011), which held that the Castle Doctrine is not a defense to battery or another violent act on a police officer. David Cupello slammed his apartment front door on the foot of an off-duty constable (Webb) who was employed by the apartment complex as a part-time courtesy officer. The complex told Webb that Cupello had been verbally intimidating to apartment staff, so Webb went to his apartment to investigate “reports of intimidation.” Id. at 1125. Webb stuck his foot just inside Cupello’s apartment once he opened the door to prevent him from slamming the door closed. When Cupello became upset, he tried closing the door several times, striking Webb’s foot. This caused Webb to call for backup and arrest Cupello for battery. Id. The Court of Appeals found that the State proved that Webb was engaged in the performance of his official duties under the resisting law enforcement statute, even though he was not in uniform nor did he identify himself as a constable to Cupello during the incident. Id. at 1127-29. But the two had encountered each other on a prior occasion. When Webb went to the apartment, Cupello told him he wanted to press charges against an apartment complex employee for harassment, which could lead one to infer Cupello knew Webb as both a law enforcement officer and acting in his official capacity. Id. at 1129. But based on the 2012 amendment to Ind. Code §35-41-32(i)(2), Cupello had the right to exclude Webb from his home and used reasonable force to do so. 44

RES GESTÆ • JULY/AUGUST 2015

“The placement of Constable Webb’s foot inside the threshold of the apartment door was an unlawful entry by a public servant.” Id. at 1132. Cupello used reasonable force to prevent or terminate Webb’s unlawful entry by closing his door, so the facts do not support his conviction for battery on a law enforcement officer. Id. Judge Mathias wrote a separate concurring opinion, encouraging the Legislature to clarify what “easily visible and audible indicia are required” to place citizens on notice that they are dealing with an off-duty law enforcement officer who is acting in his official capacity. Id. at 1133. The General Assembly should also consider “the clearly intended and confusing appearance of private security personnel dressed in uniforms of the same color, and with identification patches that are nearly the same as those worn by sworn officers, as it has done with its strict limitation of blue and red emergency lighting on private vehicles. See Ind. Code §9-21-7-10.”

CLASSIFIEDS Employment Opportunities

ATTORNEYS WANTED. Supplement your income: Orlando, Fla., firm seeks attorneys licensed in Indiana with 0-5 years’ experience to review and manage collection demands, as well as possible mediations/litigation on an ongoing contract basis. Fax or email résumés and references to James F. Welborn, Law Offices of Palmer, Reifler & Associates, P.A. 407/875-0739 (fax); jwelborn@palmerreifler.com.

LAW PRACTICE FOR SALE: If you want to work for a firm expending 60-80 hours a week making money for the partners, you need not read further. If you want to work for yourself and keep what you earn, read on. If you want to be an integral part of a community, set your own hours, control your life and be able to attend your children’s

activities, this is the opportunity for you. I own a well-established, ready-to-go practice. I have been in practice 43 years in northeast Indiana. It is a good place to live and raise a family. This is a turn-key law practice: 2 buildings, all office equipment, systems and personnel are in place. If you are interested, please respond to this ad at the following: Res Gestate, 031501, Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. LABOR & EMPLOYMENT Associate Attorney: Bose McKinney & Evans LLP is seeking a new associate attorney for its Labor & Employment Law Group in Indianapolis. BME is a full-service firm of 110 attorneys. The ideal candidate will be 1-3 years out of law school, with a very strong academic record, and possess excellent communication, legal research and writing skills. Major law-firm or federal-clerkship experience is preferred. Professional work environment, competitive compensation and excellent benefit package. Please send cover letter with salary requirement and résumé to jobs@boselaw.com. IMMEDIATE OPENING for licensed attorney in a general practice law firm in northwest Indiana. Prefer 1 or more years of experience in insurance defense or bankruptcy but will consider hard working candidates. Interested applicants please send résumé to dargo@bettercallmylawyer.com.

WANTED: 3 sole practitioners interested in sharing office space in Class A building in Carmel. All services provided with an association of attorneys with an overflow of business. Terms negotiable.Please email inquiries to carmellawoffice@gmail.com.

Employment Desired

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

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


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WORKER’S COMPENSATION. Evansville attorney Kevin R. Bryant seeks referrals on worker’s compensation cases statewide. Please telephone 812/437-9991. HEARING COUNSEL – Experienced collection & landlord attorney available to cover your local counsel needs in Allen, Adams, DeKalb, Whitley, Noble, Steuben, Wells and LaGrange counties. Reasonable rates, prompt service. Contact Robert C. Feightner, feightnerlawfirm@gmail.com, 260/755-0873.

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 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

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

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

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

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

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.

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

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 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

Special Services

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

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

Miscellaneous

ELDER MEDIATION: A Way to Resolve Family Conflict, Advanced Mediation Training; Friday, Dec. 11, 9 a.m. to 4:30 p.m. Location: NASW-Indiana Chapter, 1100 W. 42nd St., Krannert Hall, Indianapolis, IN 46208. Lunch and refreshments included. NASW or IAM Member $130; nonmember $160. Register online: www.naswin.org; phone: 317/923-9878.

MEDIATION CME/CLE SEMINARS 12/4 – Three 2-hr. CME/CLE seminars in Ft Wayne by Janet Mitchell: Mediation Training Requirement on Domestic Violence (10-12); Gay Clients, Law & Mediation (1-3); and/or Elderly Clients, Law & Mediation (3:15-5:15). $100 per seminar. To register: 260/483-7660, janetmitchell@mediate.com or www.JanetMitchellMediation.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

Are your clients asking about Florida domicile?

BRAD A. GALBRAITH

• Florida Bar Board Certified in Wills, Trusts & Estates • Competent Co-Counsel • Author of The Florida Domicile Handbook 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

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 • JULY/AUGUST 2015

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By Theresa M. Browning

Paying it forward

FAIR COMMENT

D

anny Marcum* went to law school late in life compared to some. He was 36 and studied part time at I.U. McKinney School of Law while working full time. “Law school was always in the back of my mind,” he said. He says he isn’t humble. Why then did he choose to remain anonymous about his donation to the Richard M. Givan Loan Repayment Assistance Program (Givan LRAP)? “Maybe it’s the circumstances or the times I grew up in,” he said. He learned to “be suspicious of the man waving the flag and the man who prayed the loudest.” Marcum began donating $100 a month, every month, to the Givan LRAP through a recurring pledge donation to the Indiana Bar Foundation.

No one succeeds alone A colleague, an acquaintance really, took an interest in Danny’s success and encouraged him to go to law school. So did a sheriff in a large metropolitan city at that time. However, his acquaintance did something more. Robert Lester** offered to pay for Danny’s first year of law school. According to Danny, he wasn’t the only person Robert helped. “I’m sure of it.” He continued, “I was not making $50,000 a year. I had just bought a townhome and a car.” Attending law school – even part time – was risky. He had not performed well on his LSAT the first time he took the exam immediately after college.

Helping hundreds of Hoosiers Today Danny is returning the kindness bestowed on him. Now a successful attorney in private practice at a small firm, he is now a donor to the Givan LRAP. His donation helps other attorneys, those working in nonprofits such as civil legal aid and domestic violence shelters. “I should be doing more,” he kept Director of Development saying even after being told his donation & Communications is helping other Indiana attorneys to conIndiana Bar Foundation tinue to serve thousands of low-income Indianapolis, Ind. Hoosiers to receive crucial civil legal TBrowning@inbf.org advice and representation.

46

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When we met at the local legal aid office to discuss his contribution, the waiting room was filled with clients. It’s like that every day. The attorneys working at civil legal aid nonprofits are helping clients seek justice. They may need a protective order. They may need a guardianship for an incapacitated relative. They may need help with a bankruptcy or mortgage foreclosure case. The clients are helped by attorneys who are supported by people like Danny Marcum, Richard Lester and all of the other hardworking attorneys and donors who have made a gift to the Givan LRAP. In 2014, volunteers granted $12,000 in revenues (interest income from the endowment) from the Givan LRAP as well as the Hon. J. Terrence and Peggy Cody Loan Repayment Assistance Fund, both of which are administered by the Indiana Bar Foundation. Both endowments support the crucial work that legal aid attorneys do for low-income Hoosiers every day. That revenue was apportioned to three of the five applicants carrying the most debt and most recently graduated from law school. Deciding to whom to grant the limited funds was difficult.

Why do law school graduates have so much debt at graduation? The reasons for higher-education debt are as varied as the individuals. The total combined undergraduate and law school debt for the five applicants to the Givan LRAP in 2014 was more than $600,000, and their combined salaries were approximately one third of that total. You may not be able to donate the equivalent of a year of law school, but you can show promising young lawyers that you see the potential and promise in their public service – the potential Robert Lester saw in Danny Marcum. Donations to the Richard M. Givan LRAP or the J. Terrence and Peggy Cody LRAP are tax deductible. More information on these endowments and others that aid the legal profession may be found at www. inbf.org or by calling the development office at 317/269-7864. * Danny Marcum and **Richard Lester are pseudonyms to protect the anonymity of these individuals. They chose anonymity so their story could be more widely known.


Profile for Indiana State Bar Association

Res Gestae - July/August 2015  

July/August 2015 edition of Res Gestae, the journal of the Indiana State Bar Association

Res Gestae - July/August 2015  

July/August 2015 edition of Res Gestae, the journal of the Indiana State Bar Association

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