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October 2014

JEFF HAWKINS

NEW ISBA PRESIDENT & FAMILY

Vol. 58, No. 3


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The Journal of the Indiana State Bar Association

RES GESTÆ October 2014

DEPARTMENTS

10 PRO BONO

5

18 DRONES

Vol. 58, No. 3

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

10

ETHICS CURBSTONE: PRO BONO REPORTING

25

WORDWISE: EMAIL COMMUNICATIONS

30

RECENT DECISIONS 6/14

39

CRIMINAL JUSTICE NOTES 6/14

42

FIT TO PRACTICE: INACTIVITY PHYSIOLOGY

Donald R. Lundberg, Indianapolis

Prof. Deborah B. McGregor, Indianapolis

Kathy L. Osborn and Sarah C. Jenkins, Indianapolis

Jack Kenney, Indianapolis

By Carol Kennedy-Armbruster, Ph.D., Bloomington

25 EMAIL

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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

FAIR COMMENT CLASSIC Rabb Emison, Vincennes

F E AT U R E S

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THE LEGAL IMPLICATIONS OF DRONES By Todd J. Janzen, Indianapolis, and Sarah L. Doyle, State College, Pa.

7 JUDGES RECOGNIZED

43 SUPREME COURT ANNUAL REPORT

Featured on the cover is the Hawkins family of Sullivan, Ind. (from left to right): daughter Erin, new ISBA President Jeff and his wife & law partner, Jennifer They are joined by their beloved & faithful companion, Toby. Photo by Jen Thompson of Jen’s Lens Photography, Sullivan, Ind.

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. ©2014 by the Indiana State Bar Association. All rights reserved. Reproduction by any method in whole or in part without permission is prohibited. Opinions expressed by bylined articles are those of the authors and not necessarily those of the ISBA or its members. Publication of advertisements is not an implied or direct endorsement of any product or service offered.

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Own it

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

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

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

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

STAFF Executive Director Thomas A. Pyrz • tpyrz@inbar.org Administrative Assistant Barbara M. Whaley • bwhaley@inbar.org Associate Executive Director Susan T. Jacobs • sjacobs@inbar.org Administrative Assistant Julie A. Gott • jgott@inbar.org Director of Communications Susan J. Ferrer • sferrer@inbar.org Director of Public Relations & Social Media Carissa D. Long • clong@inbar.org Graphic Designer & Photographer Vincent Morretino • vmorretino@inbar.org Legislative Counsel Paje E. Felts • pfelts@inbar.org Director of Special Projects Section & Committee Liaison Maryann O. Williams • mwilliams@inbar.org Administrative Assistant Barbara L. Mann • bmann@inbar.org Director of CLE Christina L. Fisher • cfisher@inbar.org Assistant to Director of CLE Kassandra Adams • kadams@inbar.org Local & Specialty Bar Liaison Catheryne E. Pully • cpully@inbar.org Administrative Assistant Kimberly D. Latimore • klatimore@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

f you are reading this column, you are probably a member or associate member of the Indiana State Bar Association. Your ISBA is a 118-year-old, voluntary association of more than 12,000 lawyers, judges and affiliated non-lawyer professionals. About 1,200 of your fellow members provide volunteer service among ISBA’s 42 committees, 27 sections, our Board of Governors and House of Delegates. Through this complex web of volunteer service, you help advocate for the civil rights of children, teach new lawyers how to practice law competently, comment on proposed rules of practice, promote and defend the independence of the judiciary, advocate for improved legislation, promote lawyers’ physical and mental fitness, and many, many other noble pursuits. Your ISBA participation makes you an essential part of an amazingly effective professional service organization. You and I live and work together as American and Hoosier legal professionals of diverse cultures and perspectives. As judges, lawyers and non-lawyer professionals, our world revolves around the rule of law and the administration of justice. One of our most prized professional attributes is that we can serve our professional interests, even when we disagree, without forfeiting or diminishing our rights and privileges as citizens. No matter what issues divide us as freethinking people, we remain united as Americans, Hoosiers and members of Indiana’s largest association of legal professionals – the Indiana State Bar Association. We are people of many ages, cultures, races, ethnic origins, abilities, sexual orientations, gender identities, practice environments and perspectives. This rich diversity empowers us to grow, evolve and

adapt to changing economic and political realities that confront us now and with certainty will emerge in the future. Last year, the ISBA House of Delegates added two at-large Board of Governors seats so that the Board would more fully reflect the diverse ISBA membership composition. We recently established a new Sexual Orientation & Gender Identity (SOGI) Committee to build bridges for members of all sexual orientations and gender identities. On Nov. 20, the ISBA will present a CLE program focusing on disabilities and how we, as lawyers and ISBA members, can serve, embrace and engage clients and fellow legal professionals that live with physical and mental disabilities. We are also reaching out into the far corners of the state to engage lawyers and other legal professionals so that all of our members may experience fulfilling engagement as members of a thriving professional association. Again, if you’re reading this article, you are probably one of the members I am describing. The Indiana State Bar belongs to you, and it cherishes you as one of its members. I encourage you to own your ISBA membership and enjoy all that membership offers you. Like many things, your Association’s value relates directly to how you live out your membership. I invite you, as a member whose professional fellowship I cherish, to live large as an ISBA member and to own it as your Indiana State Bar Association.

PRESIDENT’S PERSPECTIVE JEFF R. HAWKINS jeffh@hawkinslaw.com 2014-2015

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Judges recognized for educational pursuits, longtime service Magistrate Katherine J. Garza (Lake)

Indiana Judicial College

This award is presented to judicial officers with 24 years of service on the bench. Judges are typically elected to a six-year term; therefore, a judge receiving this certificate has likely been elected four times. To view and download photographs of the 24 Years of Service certificate recipients, please visit http://tinyurl.com/ 24-Years-of-Service.

A judicial officer must complete 120 hours of education presented by the Indiana Judicial Center to receive this certificate. The programs offered are designed for judicial officers to enhance their legal knowledge and improve their personal and professional development. To view and download photographs of the Judicial College graduates, please visit the Flickr page at http://tinyurl.com/2014Judicial-College-grads.

Judge Nancy Eshcoff Boyer (Allen)

Judge David A. Happe (Madison)

Judge David C. Chapleau (St. Joseph)

Judge Clay M. Kellerman (Franklin)

Magistrate Glenn D. Commons (Lake)

Judge Mary Margaret Lloyd (Vanderburgh)

Judge P. J. Pierson (Sullivan)

Judge Dan E. Marshall (Hancock) Judge Gary L. Smith (Jennings) Magistrate Karen A. Werner (Perry)

24 years of service

Judge Patricia A. Riley (Court of Appeals) The Indiana Judicial Center serves as the state’s judicial research and continuing judicial education agency. It develops and sponsors education programming for judges, probation officers and other court personnel. The Center works to enhance the performance of the judicial system as a whole by continuously improving the professional competence of judicial officers. For more information on the Judicial Center, visit courts.in.gov/center.

BENCH & BAR NEWS

S

everal judicial officers (judges and magistrates) were recognized by Indiana Chief Justice Loretta H. Rush for their commitment to higher education and their longtime service. Chief Justice Rush, as chair of the Judicial Conference, recognized 12 judicial officers who received an Indiana Judicial College certificate and five judicial officers for 24 years of service on the bench. Both honors were presented at the fall judicial conference.

Judge James R. Ahler (Jasper) Magistrate Sally E. Berish (Boone) Judge Jonathan N. Cleary (Dearborn) Judge W. Gregory Coy (Switzerland) Magistrate Gael S. Deppert (Marion)

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Supreme Court rules in favor of public access on cause of death

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ndiana Attorney General Gregory F. Zoeller applauded the Indiana Supreme Court’s Oct. 7 ruling that local death certificates are a public record that the public should be able to obtain. The Attorney General’s Office had weighed in on the case in support of keeping the documents public under the Access to Public Records Act, and had filed an amicus brief and participated in the oral argument before the Court on May 8.

The State was not a party to the case, and the Attorney General’s Office did not represent either side. However, the AG’s Office had filed an amicus brief, also known as a friend-of-thecourt brief, in support of the plaintiff-appellants and of keeping the cause of death in death certificates accessible by the

general public. Citing the statute the Legislature passed, the amicus brief argued in favor of the general policy of open access to government information and broadly construing public access laws.

“Consistent with the principle of transparency, we asked the Supreme Court to return to the longstanding practice of making the cause of death in death certificates promptly available to the public who has the right to know, and the Court agreed. We all must be sensitive to Hoosiers’ privacy concerns particularly with families who have suffered a recent loss; but the intent of state law is that the certificate of death – listing the deceased’s name, age and cause of death – must be accessible at the county level,” Zoeller said. The Indiana Supreme Court on May 8 heard oral argument in the case, Evansville Courier & Press and Rita Ward v. Vanderburgh County Health Department, and the Court issued its ruling in favor of the plaintiff-appellants. The Supreme Court’s ruling overturned the Vanderburgh County trial court’s ruling and ordered that the certificate of death filed by doctors, coroners and funeral directors be treated as a public record. The Supreme Court’s ruling also affirmed the legal position taken by an Attorney General’s Office official opinion under former AG Jeff Modisett in 1998. RES GESTÆ • OCTOBER 2014

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By Donald R. Lundberg

Pro bono and pro bono reporting

ETHICS CURBSTONE

A

lmost all lawyers are aware of the professional responsibility to provide pro bono publico services. I have assiduously avoided using the word “duty,” since the obligation is morally compelling, but not mandatory. Rule of Professional Responsibility 6.1 addresses it: A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

“Should” is an unusual word in the Rules of Professional Conduct. There is no other black-letter rule that uses that word, although the Preamble and comments use it often. According to the Preamble, when the Rules use the words “shall” or “shall not,” an obligation enforceable through lawyer discipline is created. When the Rules use the word “may,” lawyers have discretion in how to exercise their professional judgment. See Preamble at [14]. “Should,” although undefined, would appear to be somewhere in between – conveying a sense of moral force and community expectation without being enforceable through professional discipline. Effective Jan. 1, 2015, new Rule of Professional Conduct 6.7, promulgated on Sept. 2, will go into effect, creating certain pro bono reporting duties. I use the word Donald R. Lundberg “duties” advisedly Barnes & Thornburg LLP because unlike the Indianapolis, Ind. donald.lundberg@BTLaw.com general rule in Rule 6.1 about pro bono publico service, Rule 10

RES GESTÆ • OCTOBER 2014

6.7 uses the word “shall.” The choices to use mandatory language and to include this rule in the Rules of Professional Conduct signal the Court’s intent that the duties set forth in Rule 6.7 will be enforceable through lawyer discipline. In fact, the rule itself is quite explicit on this point: The rule “creates a mandatory reporting obligation, the violation of which may subject a lawyer to discipline.” Rule 6.7(c). Consequently, it is important for all lawyers to know what this new rule says. Now that we do our annual attorney registrations online, I imagine the registration form will solicit this information in required data fields. Thus, it will be essentially impossible to not comply with the reporting rule. Of course, noncompliance could arise in different ways. We are asked to report approximate hours and dollars donated. It would be a violation to materially under or over-report hours. Recall that one Indiana lawyer was disciplined for, among other things, receiving full CLE credit when he was not entitled to it. Matter of Benjamin, 756 N.E.2d 967 (Ind. 2001). Throughout this column I will use the awkward phrase “reportable pro bono legal services.” I couldn’t think of a pithy acronym. RPBLS doesn’t exactly roll off the tongue. I have been careful to do that because there are some significant disconnects between Rules 6.1 and 6.7 that lawyers need to be aware of. I will point them out.

When is it effective? Rule 6.7 is nominally effective Jan. 1, 2015. However, the first obligatory reporting of pro bono activities will not be until the 2016 annual registration, which is due by Oct. 1, 2016. That registration process will call upon lawyers to report pro bono activities

in calendar year 2015. The considerable lead time is helpful because it lets all of us know that beginning Jan. 1, 2015, we will need to start keeping track of our time doing pro bono work and our financial contributions in support of pro bono during the year. Each year by Oct. 1, we will be expected to report our pro bono activities for the previous calendar year.

Who has to report? There are four categories of exemptions: (1) members of the judiciary and judicial staff; (2) government lawyers prohibited by statute, rule, regulation or agency policy from engaging in outside practice; (3) retired lawyers; and (4) inactive lawyers. I get the exemption from reporting pro bono legal services hours for these categories of lawyers. I don’t quite get why these exempted lawyers should be exempt from reporting donations to qualified recipient organizations. I know many lawyers and judges who fall into these categories who give generously. Shouldn’t we want to capture that generosity as part of the measure of our profession’s commitment to access to justice?

What must be reported? Two (or three, depending on how you count) items of information must be reported on the annual registration statement: first, the approximate number of hours spent providing reportable pro bono legal services during the calendar year. The specific reporting language is: “I have personally provided approximately ___ hours of reportable pro bono legal services for the previous calendar year ending December 31.” Rule 6.7(a)(1). I will discuss what activities are reportable as pro bono legal services below – it is not necessarily obvious.


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The second reportable item is the amount of pro bono-related financial contributions made in the calendar year. The specific reporting language is: “I have either (a) contributed approximately $ ______ to the Indiana Bar Foundation, to any of the local IRC 501(c)(3) pro bono districts listed at http://www.in.gov/judiciary/ probono/2338.htm, or to a legal service organization located in Indiana that is eligible for fee waiver under I.C. 33-37-3-2(b); or (b) made an in-kind contribution of $ ______ to one or more of the foregoing qualifying legal service organizations or local pro bono districts.” Rule 6.7(a)(2). The qualified recipient organizations include the Indiana Bar Foundation, which is the statewide administrator of Indiana’s Interest on Lawyer Trust Accounts (IOLTA)

program and the distributor of IOLTA funds to regional pro bono districts and the 12 regional pro bono districts in Indiana. Id. The 12 regional pro bono districts are: District A: NWI Volunteer Lawyers, Inc. District B: The Volunteer Lawyer Network, Inc. District C: Volunteer Lawyer Program of Northeast Indiana, Inc. District D: Indiana Legal Services, Inc. District E: Wabash Valley Volunteer Lawyers, Inc. District F: District 6 Access to Justice, Inc. District G: Heartland Pro Bono Council, Inc. District H: District 10 Pro Bono, Inc. District I: Legal Aid District Eleven, Inc.

District J: Legal Volunteers, District 12, Inc. District K: Volunteer Lawyer Program of Southwestern Indiana, Inc. District L: Southern Indiana Pro Bono Referrals, Inc.

In addition, the qualified recipient organizations include legal services organizations whose clients are automatically exempt from paying civil filing fees and other court costs under I.C. 33-37-3-2(b). Those organizations are Indiana Legal Services, Inc., or “another civil legal aid program.” It is unclear what organizations fall within the definition of a “civil legal aid program,” and that list may change from time to time. The Indiana Division of State Court Administration administers a state (continued on page 12)

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PRO BONO REPORTING continued from page 11 fund for legal assistance to indigent persons in civil cases. The following organizations are currently qualified to receive distributions from the Civil Legal Aid Fund, but the number of civil legal aid programs is undoubtedly more extensive: Center for Victim & Human Rights Disability Legal Services of Indiana District 10 Pro Bono Commission, Inc. Elkhart Legal Aid Service, Inc. Indiana Legal Services, Inc. Indianapolis Legal Aid Society, Inc. Law School Legal Services, Inc. Legal Aid District Eleven, Inc. Legal Aid Corporation of Tippecanoe County, Inc. Legal Aid Society of Evansville, Inc. Neighborhood Christian Legal Clinic, Inc. Volunteer Program of Northeast Indiana, Inc.

Whitewater Valley Pro Bono Commission, Inc.

As you can see, this list overlaps in part with the pro bono districts.

What are reportable pro bono legal services? Rule 6.7 is helpful in distinguishing between what are and are not reportable pro bono legal services. “Reportable pro bono legal services are those legal services rendered directly to or for the benefit of persons reasonably perceived to be of limited means without charge or expectation of a fee by the lawyer at the time the service commences.” Rule 6.7(b)(1). Reportable pro bono legal services or for representations that are the result of a conscious decision to provide legal services for free to someone who cannot pay for them – it is not an after-the-fact assessment when

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a client doesn’t pay a bill. See Rule 6.7(b)(3). Pro bono legal services may be rendered outside the state of Indiana. Rule 6.7(b)(2). Reportable pro bono legal services do not include “services rendered to improve the law, the legal system or the legal profession unless solely aimed at assisting persons of limited means.” Id. Some of those services might count as in-kind contributions though, a point I discuss later. “Activities for improving the law, the legal system or the legal profession” are considered to be pro bono services for purposes of Rule 6.1. Reportable pro bono legal services are those that are provided free of charge to the client. Thus, they will not include the value of a discount given by a lawyer to a client who cannot afford to pay a lawyer’s normal rate. That is perplexing – or at least unexplained – since Rule 6.1 expressly includes providing professional services at a reduced fee to persons of limited means in its definition of pro bono services. Persons of limited means are defined as “individuals or families whose household incomes are up to 200 percent of the federal poverty guidelines.” Rule 6.7(b)(1). 200 percent of the federal poverty guidelines amounts to $23,340 annually for a household of one; $31,460 for a household of two; $39,580 for a household of three; and $47,700 for a household of four. These amounts are adjusted annually and reported in the Federal Register. Thus, it is not reportable pro bono legal services if the client is known to have income above 200 percent of the federal poverty guidelines, even if the person is legally indigent, i.e., does not have the resources to be able to afford the legal services needed to resolve a particular legal (continued on page 14)

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PRO BONO REPORTING continued from page 12 problem – such as one that is complex. Finally, legal services to organizations, even organizations that serve poor people, including organizations that provide legal services to poor people, appear not to count as reportable pro bono legal services. For example, incorporat-

ing and securing tax-exempt status for such an organization might not be eligible for pro bono reporting. I stop short of being definitive on this point because Rule 6.7(b)(1) states that reportable pro bono legal services can include legal services rendered “for the benefit” of poor persons. This language, especially

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juxtaposed with the mention of legal services rendered directly to poor people, leaves open the possibility that providing pro bono legal services to an organization whose mission is to provide services (and not necessarily just legal services) directly and exclusively to poor people constitutes providing legal services for the benefit of poor people. Here, again, we could benefit from more guidance. If my interpretation is right, this is in tension with Rule 6.1, which expressly includes as pro bono legal services professional services provided to public service or charitable groups or organizations. If the goal of the pro bono reporting rule is to capture the total hours of legal time devoted by lawyers for the tangible benefit of poor people, pro bono legal services to poor peopleserving organizations ought to be captured as a legitimate form of reportable pro bono legal services. It is clear that the Court had in mind an image of what constitutes pro bono legal services for reporting purposes that is different and narrower than what pro bono legal services are generally. Presumably, by requiring reporting of a narrower class of pro bono legal services, the Court wished to incentivize lawyers to focus their pro bono efforts on direct client legal representation.

What are in-kind contributions? What are in-kind contributions, and how are they to be valued? Unfortunately, the rule is not helpful on this complex question. In fact, it uses language that evades the question of valuation by simply assuming that the value of in-kind services can be readily ascertained. Valuing in-kind contributions to charities can be complicated. For example, a donation of tangible (continued on page 16)


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PRO BONO REPORTING continued from page 14 goods to a 501(c)(3) organization will generally be tax deductible at fair market value. Volunteering time to a 501(c)(3) organization will not be deductible. However, apart from the issue of tax deductibility, from the vantage of the 501(c)(3) organization, treating the value of donated services as organizational income is an entirely different proposition. Generally, charitable organizations should recognize the value of some contributed services under GAAP because if they were not contributed the organization would have to pay for them. (Disclaimer: I am neither a tax lawyer nor a CPA. Don’t rely on this as legal or accounting advice.) Are you confused? I am. On Oct. 1, 2016 (or earlier if I get around to registering before the last minute), should I report the value of the time I spend on, for example, the board of the Indiana Bar Foundation? My board service is clearly not a pro bono legal service because it is not direct client representation. But is it an in-kind donation to a qualified organization – which the Indiana Bar Foundation is?

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I assume the idea behind Rule 6.7 is that it paints a picture of the value lawyers as a profession give to support the organizations that facilitate direct pro bono representation of low-income clients. Also, some lawyers might not feel qualified to provide direct legal services to low-income clients because they are not knowledgeable about the legal problems poor people face. Donation reporting gives them the option to report donations as their way of supporting the profession’s commitment to pro bono publico and access to justice. If I give $500 to such a qualified organization (which is clearly a reportable cash donation), that $500 might be as likely (more likely, in fact) to be used to fund the overall administrative costs of the organization as it is to directly fund legal representation of low-income clients. Seen from that vantage point, the many hours lawyers donate to organizations that represent low-income clients, by board service for example, help complete the picture of the profession’s support for pro bono and access to justice activities and represent real value to those organizations that redounds to the benefit of low-income clients. It also levels the playing field, so to speak, by allowing lawyers who practice in esoteric areas of little relevance to poor people to show their support in ways other than or in addition to giving cash. This particular point is sufficiently uncertain that I will keep my own counsel on how the reporting of donated time should be handled. If we choose to report the value of our donated time, we have the problem of valuing our time. Again, we have no guidance. I’ll have to leave it to each of you to figure out what your time is worth. In a free market for legal services, it is arguably what clients pay us for our legal work day in and day out.

It is true that board service or other donated time might not be legal work in the specialty areas for which our clients compensate us. Nonetheless, time being inelastic, an hour devoted to a qualified organization does carry the opportunity cost of not being able to sell that same hour on the open market to a client willing to pay for it. So put your economist’s hat on and do your best to figure it out.

Public disclosure To recap, providing pro bono legal services (or making donations to pro bono-related organizations) is not mandatory in Indiana. Reporting those hours and donations will soon be mandatory. Thus, it will technically comply with Rule 6.7 to report zero hours of pro bono legal services and zero dollars of contributed funds. It should also be really embarrassing to make such a report, but who’s going to know? Well, it turns out probably nobody. A controversial question that has been tied to pro bono reporting is whether those reported hours or donations should be made public. As a technical matter, public reporting would be easy. Some of our attorney registration information is available to the public on the online roll of attorneys. The number of reported pro bono hours and qualified donations could readily be added to the public part of the roll of attorneys, but the Supreme Court has weighed in on the confidential side of the debate. “Information received pursuant to this Rule shall not be publically disclosed on an individual or firmwide basis.” Rule 6.7(d). The state Access to Public Records Statute exempts records from public disclosure that are “declared confidential by or under rules adopted by the supreme court of Indiana.” I.C. 5-14-3-4(a)(8).


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Rule 6.7(d) is probably a declaration of confidentiality by the Supreme Court, although a stickler (not me, of course) might point out that it stops slightly short of being an explicit declaration of confidentiality. I suspect the other choice of making pro bono reporting records available to the public would have been highly controversial within the bar.

A little commentary please Initially, I wasn’t sure this new rule presented enough grist for an entire column. As you can see, I was wrong. Rule 6.7 will be the only Rule of Professional Conduct that contains no comments. I am hopeful that the Supreme Court will consider adding comments to Rule 6.7 to provide some rationale for the distinctions between Rule 6.1 and 6.7 and to provide interpretive guidance around the question, among others, of what constitutes an in-kind contribution. Regardless of how the Court does it, I think further guidance to the bar is in order. Most lawyers I know are committed to and proud of pro bono publico service and look forward to helping the Court quantify that service.

Conclusion This is a pretty modest rule and relatively painless to follow. Keeping track of monetary contributions should be easy. Keeping track of reportable pro bono hours could be quite complicated. Many law firms have pro bono reporting structures that track time spent on pro bono matters in much the same way as on fee-paying client matters. The challenge presented by Rule 6.7 is creating a secondary system that tracks general pro bono time that falls within Rule 6.1 and separately tracks pro bono time reportable under Rule 6.7. Keeping track of

in-kind contributions should be relatively easy in those somewhat unusual circumstances where the donation is of goods. Keeping track of time donated to qualified organizations should be easy by simply entering time in your firm’s billing system and treating the organization as a pro bono client.

interesting to see all of this information aggregated. I suspect the amount of time and money directed by lawyers to assisting the poor will be pretty impressive. We should all step up and do more to make that data mind-blowing.

We’ve got a few months to get our systems in place. It will be

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By Todd J. Janzen and Sarah L. Doyle

Planet of the drones: the legal implications of the commonplace use of unmanned aircraft systems

AGRICULTURAL LAW

“D

rone” is a common media term for devices that are used for flight without an onboard pilot. They are more formally known as Unmanned Aircraft Systems or UAS. UAS can be as simple as model aircrafts used for recreational purposes or as complex as surveillance vehicles flying over hostile territory. The United States military has used UAS in an effort to decrease human deployment in potentially dangerous locations while increasing surveillance activities. Additionally, other agencies, groups and individuals have found public and private uses for UAS.1 For example, in the agricultural industry, the use of UAS offers a number of potential benefits for farm operators. According to several press releases, UAS can help farmers detect crop disease or locate missing or hurt animals, saving farmers the time and money spent walking the fields on foot or by manned vehicle. Some farmers claim that they are better able to detect disease because of the advantage of aerially viewing fields.2 While the FAA has stated that using UAS for such agricultural purposes is illegal without certification, this has not stopped some farmers from purchasing UAS for upwards of $12,000.3

Current regulation of UAS

Todd J. Janzen Plews Shadley Racher & Braun LLP Indianapolis, Ind. tjanzen@psrb.com 18

The FAA published a Notice of Policy in an effort to ensure that UAS are operated at a certain level of safety. Public institutions, like government agencies, can apply for a Certificate of Waiver or Authorization (COA) from the FAA to use UAS for experimenta-

RES GESTÆ • OCTOBER 2014

tion and research. The operator of the UAS must also comply with a strict set of rules. This type of certification has been granted for numerous public institutions. The FAA established another policy for private users, known as “Unmanned Aircraft Systems Operating as Civil Aircraft.” In this policy, the FAA admits that the potential use of UAS in the commercial or civil sector is as diverse as in the public sector. The required certification to operate a UAS in the civil sector is also similar to the certification required to operate a UAS in the public sector, e.g., certified civil operators may only use UAS in an experimental capacity.4 The FAA states in its Notice of Policy that no person or group in the civil or private sector may operate a UAS in the national airspace (NAS) unless the person is operating the aircraft for purely recreational purposes under AC 91-57 Model Aircraft Operating Standards. Therefore, using UAS for business or commercial purposes is prohibited.5 The FAA has issued fines and cease & desist orders to UAS operators who were flying UAS for business purposes. Recently, the FAA

fined UAS operator Raphael Pirker $10,000 for flying a UAS to create a promotional video for compensation. An administrative law judge dismissed the fine, stating that since the FAA had not published any rules regarding the flying of UAS, it could not prohibit their use.6 This ruling has been stayed pending appeal.7

Future regulation of UAS Regulation of business or commercial UAS is expected to be less prohibitive in the near future. The UAS Notice of Policy was published in the Federal Register in 2007, and at that time, the FAA stated that it was undertaking a safety review to examine the feasibility of creating a different regulatory category of UAS that were small and slow enough to adequately mitigate hazards to other aircraft and persons on the ground.8 Then, in 2012, Congress directed the FAA to create rules for “safe integration” of UAS by Sept. 30, 2015. The FAA predicts that this safe integration will be incremental. The agency expects to publish a proposed rule for UAS under 55 pounds later in 2014,9 though critics are


RG 10.14_RG 09.05 10/28/14 3:33 PM Page 19

skeptical the FAA will meet the deadlines. Rulemaking will allow businesses and individuals to use UAS to improve data collection and information processing. But while the FAA is tasked with the regulation of UAS permitting and safety, some speculate that the FAA is ill-equipped to handle privacy concerns of the magnitude imposed by common UAS use.10 “As drone technology continues to develop at an overwhelming rate, drones are quickly becoming available for domestic use. Presently, there are no specific legislative limitations on domestic drone use. Consequently, drones can be used in a manner that drastically invades individual privacy.�11 The main function of UAS is surveillance. “Due to its relative cost effectiveness [and maneuverability], drone aerial surveillance has quickly become the most efficient tool for monitoring livestock movements, mapping wildlife habitats, maintaining property security, performing road patrols, combatting piracy, among other [uses].�12 Additionally, many state and local law enforcement agencies have purchased UAS for various purposes. Government agencies see value in the use of UAS technology to assist in enforcing regulations and permits. Specifically, the Environmental Protection Agency has introduced proposals for UAS to be integrated into its operations.13

Analysis of Fourth Amendment issues raised by the use of UAS The use of UAS by agencies and law enforcement raises serious concerns related to privacy. Traditionally, the right to privacy has been found in the Fourth Amendment of the U.S. Constitution. The Fourth Amendment guarantees,

‌ the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.14

The Fourth Amendment rights have been tested throughout history with varying results depending on the facts of each case.15 For example, in Oliver v. U.S., the police entering of a privately owned, open field was not an invasion of privacy, even though there was a trespass to land without the landowner’s permission.16 In contrast, the Court in U.S. v. Jones found that the installation of a global positioning system (GPS) on a person’s car is an invasion of privacy because there was a trespass onto the person’s “effect.�17 The outcomes of these cases were dependent on where the intrusion occurred. In Jones, there was a trespass to a person’s car (an “effect� under the Fourth Amendment18) in order to learn

information about the user, where in Oliver there was a trespass to a private, open field. The Court in Jones explained that an open field is not one of the protected areas enumerated in the Fourth Amendment, and that the government’s intrusion on such an area, unlike the intrusion upon an “effect� like in Jones, is of no Fourth Amendment significance.19 In Jones, the Court stated that a trespassory test does not exclude the reasonable expectation of privacy test, which was used in Oliver, and the reasonable expectation of privacy test may be appropriate to consider in situations where there was no governmental trespass.20 The reasonable expectation of privacy test derives from the Supreme Court case, U.S. v. Katz.21 The Court in Oliver relied on Katz and stated that the government’s intrusion on an open field was not a “search� in the constitutional sense because there is no reasonable expectation of privacy in an open field. The Court explained that while trespass is one factor in (continued on page 20)

STATEWIDE MEDIATION PRACTICE $GYRFDWHIRU6HWWOHPHQW 5HJLVWHUHG0HGLDWRUIRU(PSOR\PHQW&LYLO5LJKWVDQG*HQHUDO/LWLJDWLRQ

$P\)LFNOLQ'H%URWD 13HQQV\OYDQLD6WUHHW‡&DUPHO,QGLDQD ‡ID[DQGWROOIUHHSKRQH ZZZGHEURWDODZFRP ‡DP\#GHEURWDODZFRP

RES GESTÆ • OCTOBER 2014

19


RG 10.14_RG 09.05 10/28/14 3:33 PM Page 20

LEGAL IMPLICATIONS OF DRONES continued from page 19 determining whether expectations of privacy are legitimate, it does not complete the analysis. Trespass law extends to all instances of intrusion onto private property, whether the exercise of the right to exclude from property supports a legitimate privacy interest or not. In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment and the reasonable expectation of privacy (the “Open Fields Doctrine”22).23 Searches conducted through the use of airspace have traditionally been considered in the context of the Open Fields Doctrine and the reasonable expectation of privacy test. In Dow Chemical Co. v. U.S., the EPA flew over a manufacturing site at 1,200 feet to view the inside of a manufacturing plant.24 The Supreme Court said that this was a permissible search because there was no reasonable expectation that planes flying over the site could not see into the site. The Court reasoned that the open areas of the facility are not like the “curtilage”

of a dwelling for purposes of aerial surveillance.25 The site was more like an open field; therefore, taking photographs from the navigable airspace is not a search prohibited by the Fourth Amendment.26 Similarly, the Supreme Court in Florida v. Riley held that there was no unconstitutional search when the police used a helicopter to fly 400 feet over a person’s home because there was no reasonable expectation that marijuana plants were protected from being observed by the naked eye at an altitude of 400 feet.27 The Court reasoned that since commercial flight is routine, and helicopters are not bound by the aerial limits of other aircraft in Florida, that it was reasonable to expect a helicopter to fly over a home at this altitude.28 In this case, the only visible marijuana plants were located in a barn, 10 to 20 feet from the private property owner’s home, under a roof that had a small gap.29 The Court said that even though measures were taken to conceal the plants, a small gap in the roof was enough to eliminate a reasonable expecta-

tion of privacy.30 This case places less emphasis on whether an enumerated area is being observed, but rather whether or not it was likely that the area could be observed by the police from the air. Justice O’Connor states in her concurrence that it would be absurd to require the police to avert their eyes walking down a neighborhood of houses, so it follows that what can be seen from the outside has no reasonable expectation of privacy attached to it.31 “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”32 Based on this precedent, the reasonable expectation of privacy test will likely be applied to cases that involve government use of UAS over private land. Not only does the use of the reasonable expectation of privacy test align with precedent, but it also leaves the law flexible to adjust to future technologies. It also avoids categorizing certain searches as automatically outside the scope of Fourth Amendment protection just because the ownership of airspace above private property is undefined. It also means that a search is not automatically unconstitutional because it took place in private airspace.

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State law can offer more concrete parameters for the use of UAS. In Indiana, there are several privacy protections in place, including Constitutional provisions, statutes and common law. Indiana’s Constitution repeats verbatim the language of the Fourth Amendment in Article I, §II.33 However, the invasion of privacy test requires consideration of “the totality of the circumstances” (continued on page 22)


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LEGAL IMPLICATIONS OF DRONES continued from page 20 as opposed to the federal analysis of reasonable expectations. In Litchfield v. State, 824 N.E.2d 356 (2005), the Indiana Supreme Court stated that the appropriate test is a consideration of (1) the degree of concern, suspicion or knowledge that a violation has occurred, and (2) the degree of intrusion the method of search or seizure imposes on the citizen’s ordinary activities, and (3) the extent of law enforcement needs. There have been no cases in Indiana appellate courts addressing the issue of invasion of privacy by aircraft, so it is unknown if the “method” of intrusion (flying a UAS over private property) is likely to carry significant weight when considered with the other factors. Many states have taken the initiative to propose state specific legislation about UAS use within state borders. Florida, Montana

and Virginia were some of the first states to propose legislation in 2013. The majority of states have proposed or enacted legislation at this time.34 In Indiana, Public Law 170 (PL170), which became effective on July 1, prohibits state government entities from using UAS to collect evidence without a warrant, consent from the landowner or exigent circumstances. Government entities may use UAS for environmental, geographical or any surveying purpose other than a criminal justice purpose without a warrant.35 An open question is whether evidence of a crime should be admissible in court when collected inadvertently, e.g., evidence of a marijuana field discovered by lawful surveying of land by a government agency for a non-criminal justice purpose. PL170 also has a provision specific to private persons. The law

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RES GESTÆ • OCTOBER 2014

states that any person that knowingly or intentionally places a camera or surveillance equipment that records images or data while unattended on private property of another person without consent of the affected owner is committing a crime.36 It is unclear if it is a crime to fly UAS over property of another without recording images but observing something in real time. Additionally, the use of the word “unattended” raises questions as to whether this part of the law refers to UAS at all. Indiana has also codified criminal trespass.37 Criminal trespass occurs when “a person who does not have a contractual interest in the property knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person’s agent.”38 The Indiana Court of Appeals in Alves v. State found that even though there was no evidence that the intruder actually set foot on the land, there was evidence that he leaned over the fence, entering the airspace above the land. Part of the intruder’s body entering the airspace was enough evidence to convict for trespass.39 This holding, along with Indiana’s PL170, suggests that individuals may be committing a trespass when flying UAS in the airspace above private property without the landowner’s permission, regardless of whether the UAS is taking pictures or video. Options in tort law may also provide a framework for recovery from the proscribed use of UAS over private property.40

Conclusion Fourth Amendment protections are historically limited to areas like the home, the curtilage of the home, the person and a person’s effects or papers. Areas like open fields, which include build-


RG 10.14_RG 09.05 10/28/14 3:33 PM Page 23

ings not related to a person’s dwelling, carry little expectation of privacy under the Fourth Amendment. Traditionally, airspace has been treated more like open fields because courts have upheld searches as constitutional when the government uses airspace above private property to make observations about the landscape below. To what extent society has a reasonable expectation of privacy from UAS surveillance is an unanswered question. Indiana affords citizens some protections against invasions of privacy and trespass through its constitution, statutes and common law. The totality of the circumstances test is used by Indiana state courts when there is a claim of invasion of privacy against the state. Additionally, the legislature has made it illegal: (1) for government agencies to use a UAS for criminal justice purposes without a warrant, consent or exigent circumstances, (2) for individuals to use an unattended camera or video recording device to survey property without the property owner’s permission, and (3) to trespass without permission from the landowner. The extent that tort law can be used to recover damages from the use of UAS by other private entities is unclear, but a framework for recovery likely exists. The law as it applies to UAS will remain unclear until UAS become more commonplace, presumably after the FAA begins its rulemaking. It will be interesting to see if the law will change or remain static in order to maintain our current expectations of privacy, or if our expectation of privacy will diminish with the growing use of UAS technology. 1. Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (published Feb. 13, 2007). 2. See generally, Christopher Doering, “Growing use of drones poised to transform agriculture,”

USA TODAY (Mar. 23, 2014) http://www.usatoday.com/story/money/ business/2014/03/23/drones-agriculturegrowth/6665561; Jeannine Otto, “UAVs are next wave of agricultural technology,” AgriNews (Apr. 9, 2014) http://agrinewspubs.com/Content/News/MoneyNews/ Article/UAVs-are-next-wave-of-agriculturaltechnology-/8/27/10106; Rakesh Sharma, “Growing Use of Drones in Agriculture,” Forbes (Nov. 26, 2013) http://www.forbes.com/ sites/rakeshsharma/2013/11/26/growing-theuse-of-drones-in-agriculture. 3. Molly McMillin, “Sales soar at AgEagle, Neodesha-based drone manufacturer,” The Wichita Eagle (updated Mar. 26, 2014) http://www.kansas.com/news/business/ aviation/article1138377.html. 4. 72 Fed. Reg. 6689. 5. Id. 6. Pirker, Docket No. CP-217, Nat’l Transp. Safety Bd. (Mar. 6, 2014). 7. Federal Aviation Administration, FAA Statement, (Mar. 7, 2014) http://www.faa.gov/news/press_releases/ news_story.cfm?newsId=15894 8. 72 Fed. Reg. 6690. 9. Federal Aviation Administration, “Busting Myths about the FAA and Unmanned Aircraft” (updated Mar. 7, 2014) http://www.faa.gov/news/updates/ ?newsId=76240. 10. Chris Schlag, “The New Privacy Battle: How the Expanding Use of Drones Continues to Erode Our Concept of Privacy and Privacy Rights,” 13 PGH. J. Tech. L. & Pol’y 1, 21. 11. Id. at 2.

32. Id. at 449. 33. Ind. Const. Art. I, § II. 34. Schlag, supra, at 19. 35. See Ind. Code §35-33-5-9 (2014). 36. See Ind. Code §35-46-8.5-1. 37. I.C. Ann. 35-43-2-2. 38. Alves v. State, 816 N.E.2d 64, 65 (Ind. Ct. App. 2004). 39. Id. at 66. 40. See Creel v. I.C.E. & Assocs., 771 N.E.2d 1276, 1280 (Ind. Ct. App. 2002); Conner v. Presidents & Trs. of New Albany, 1 Blackf. 88, 89 n. 2 (Ind. 1820); Enos Coal Mining Co. v. Schuchart, 243 Ind. 692, 694 (1962).

Todd J. Janzen, Indianapolis, is a partner at Plews Shadley Racher & Braun. He focuses on agricultural law, transactional matters and business services. Todd is the current chair of the American Bar Association’s Agricultural Management Committee and also serves as the general counsel to the Indiana Professional Dairy Producers. Sarah L. Doyle is a 2015 J.D. candidate at Penn State Dickinson School of Law. She served as a law clerk at Indiana Farm Bureau, Inc. over the summer months. Her main focus for the summer was researching the law related to the use of UAS. While at school, Sarah serves as president of the Penn State Agricultural Law Society.

12. Id. at 8. 13. Id. at 10. 14. U.S. Const. amend. IV 15. See Schlag, supra note 10 at 12-14. 16. See Oliver v. U.S., 466 U.S. 170 (1984) 17. See U.S. v. Jones, 132 S. Ct. 945, 565 U.S. ___ (2012). 18. Id. at 949. 19. Id. at 953. 20. Id. at 952. 21. The test states that there must be a subjective expectation of privacy and that society must be willing to recognize this expectation as reasonable. Katz v. United States, 389 U.S. 347, (1967)(Harlan, J., concurring). 22. Hester v. U.S., 265 U.S. 57, 59 (1924). 23. Oliver, 466 U.S. at 183 (1984). 24. Dow Chem. Co. v. United States, 476 U.S. 227, 229 (1986). 25. Id. at 239. 26. Id. at 238. 27. Fla. v. Riley, 488 U.S. 445, 450-51 (1989). 28. Id. at 451-52. 29. Id. at 448. 30. Id. at 450.

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T

31. Id. at 453 (O’Connor, J., concurring).

RES GESTÆ • OCTOBER 2014

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“Talk to a Lawyer Today” Public Service • Jan. 19, 2015 Sign up today! “Life’s most persistent and urgent question is, ‘What are you doing for others?’” – Dr. Martin Luther King Jr. This annual ISBA and Indiana Pro Bono Commission program is designed as a legal information clinic, to be held on the MLK holiday Monday, Jan. 19, 2015. Participating lawyers are asked to donate 2 hours to speak with the general public on the phone or in person about legal issues. There are several locations throughout the state. All volunteers will be contacted by the site coordinators for their locations to confirm the times and places to volunteer. Please mail or fax this form to the appropriate site coordinator listed below.

Name: ___________________________________________________________________________________________ Address: __________________________________________________________________________________________ Phone: ____________________________________________________________________________________________ Attorney I.D. number: ________________________________________________________________________________ Email address: ______________________________________________________________________________________ I wish to volunteer 2 hours of my time for “Talk to a Lawyer Today” on Monday, Jan. 19, in the district checked below.  District A Jasper, Lake, Newton & Porter counties Judith H. Stanton, Executive Director NWI Volunteer Lawyers, Inc. 651 E. Third St., P.O. Box 427 Hobart, IN 46342 219-942-3404 • 219-945-0995 (fax) probono@hobartlaw.net www.nwivolunteerlawyers.org

 District B Elkhart, Marshall, Kosciusko, St. Joseph, LaPorte & Starke counties

 District E Cass, Fulton, Grant, Howard, Miami, Pulaski, Tipton & Wabash counties Luisa Michelle White, Plan Administrator Wabash Valley Volunteer Attorneys, Inc. Indiana Legal Services – Lafayette 8 N. 3rd St., Suite 102 Lafayette, IN 47901 765-423-5327 luisa.white@ilsi.net

 District F Blackford, Delaware, Hamilton, Hancock, Henry, Jay, Madison & Randolph counties

Mark Torma, Plan Administrator Volunteer Lawyer Network, Inc. 117-1/2 N. Main St. South Bend, IN 46601 574-277-0075 • 574-277-2055 (fax) mjtorma@yahoo.com volunteerinc@att.net

Christianne Brock, Pro Bono Coordinator District 6 Access to Justice, Inc. P.O. Box 324 New Castle, IN 47362 765-521-6979 • 800-910-4407 district6access@hotmail.com

 District C

 District G

Adams, Allen, Dekalb, Huntington, LaGrange, Noble, Steuben, Wells & Whitley counties

Marion County

Ruth de Wit, Executive Director Volunteer Lawyer Program of NE Indiana, Inc. 111 W. Wayne St. Ft. Wayne, IN 46802 260-407-0917 ruth@vlpnei.org

Dana Luetzelschwab, Plan Administrator Heartland Pro Bono Council 151 N. Delaware St., Suite 1800 Indianapolis, IN 46204 317-400-7435 317-631-9410, x2227 dana@ltz-law.com

 District D

 District H

Benton, Boone, Carroll, Clinton, Fountain, Montgomery, Parke, Tippecanoe, Vermillion, Warren & White counties Timothy E. Peterson, Plan Administrator Indiana Legal Services-Lafayette 639 Columbia St., P.O. Box 1455 Lafayette, IN 47902-1455 765-423-5327 • 800-382-7581 765-423-2252 (fax) tim.peterson@ilsi.net

Clay, Greene, Hendricks, Lawrence, Monroe, Owen & Putnam counties Diane Walker, Plan Administrator District 10 Pro Bono Project, Inc. P.O. Box 8382 Bloomington, IN 47407-8382 812-339-3610 • 812-339-3624 (fax) dist10probono@gmail.com

 District I Bartholomew, Brown, Decatur, Jackson, Jennings, Johnson, Rush & Shelby counties Karla Davis-Green, Executive Director Legal Aid-District Eleven, Inc. 1531 13th Street, Suite G330 Columbus, IN 47201 877-378-0358 (intake line) 812-314-2721 (plan administrator direct line) 812-372-3948 (fax) kgreen@legalaiddistrict11.org

 District J Dearborn, Fayette, Franklin, Jefferson, Ohio, Ripley, Switzerland, Union & Wayne counties Frank Cardis, Plan Administrator Legal Volunteers of Southeast Indiana, Inc. 318 N. Walnut Street Lawrenceburg, IN 47025 812-537-0123 • 877-237-0123 812-537-7090 (fax) dist12probono@legalvolunteers.com

 District K Daviess, Dubois, Gibson, Knox, Martin, Perry, Pike, Posey, Spencer, Sullivan, Vanderburgh, Vigo & Warrick counties Beverly Corn Plan Administrator Volunteer Lawyer Program of Southwestern Indiana 915 Main St., Suite 208 Evansville, IN 47708 812-402-6303 • 812-402-6304 (fax) vlpcorn@sigecom.net

 District L Clark, Crawford, Floyd, Harrison, Orange, Scott & Washington counties Andrew Adams, Plan Administrator Southern Indiana Pro Bono Referrals, Inc. 705 E. Court Ave. Jeffersonville, IN 47130 probono14@sbcglobal.net


RG 10.14_RG 09.05 10/28/14 3:33 PM Page 25

By Prof. Deborah B. McGregor

Count to three before clicking ‘Send’: making wise decisions about professional email communications

H

To email or not to email? Consider the content Make sure email is the right choice for the substance of your communication. Generally, emails are appropriate when confirming a meeting or sharing general, nonsensitive information. However, an email is likely not appropriate when giving the client bad news, conveying highly confidential information, or addressing something technical or difficult to understand, such that the client or other party would likely have follow-up questions. Perhaps in those instances it would be better to convey the information by phone or even in person, to assess the individual’s body language and overall reaction. Your tone can be helpful, especially if your goal is to soften the blow of your message. Consider also which mode of communication this particular recipient might prefer. While most professionals these days are proficient in communicating by email, some still prefer to avoid all things electronic, including email. Most expect to hear quickly from the recipient after sending an email, certainly within 24 hours, if not sooner. If, due to the substance of your response, you need time to fully address the contents of the email, consider replying quickly to acknowledge receipt of the email and to let the recipient know you will address the specifics in a future communication. This gives you time to consider how to respond and to do so carefully. You might write something like, “Thank you for your email. I am working on responding to your questions and will do so shortly and by no later than Oct. 15.” Further, the substance of your email may have unintended consequences if not phrased carefully

with explicit limitations on the use of the substance. For example, if the substance of the email relates to contract terms, those terms may unintentionally become part of a binding contract. Emails may also be used to support a legal action, such as one in defamation, employment discrimination or sexual harassment, or even to prove criminal liability. Email communications may also be used to help establish personal jurisdiction over a party. Finally, in making your choice about what to include, remember that your email may be discoverable and ultimately read in open court. First of all, only emails that include legal advice related to litigation or work product are privileged. But even those will not retain their privilege if shared willingly with a third party. The privilege exists for the benefit of the client, but if your email is forwarded to someone else, such as a client’s relative or friend, the privilege is waived. For these reasons, it is wise to advise clients to not forward confidential emails and to learn whether your client’s email account is an account that is accessible by others, such as a corporate account with the client’s employer. Further, an email that is inadvertently disclosed may result in a waiver of privilege.1 In short, while email is considered a casual form of communication, when used for business treat it as a more formal document that you would not mind others reading.2 Having business-wide policies in place for Internet and email use may help prevent later problems. (continued on page 26)

WORDWISE

istorically, professionals would draft or dictate a letter, an assistant would type up that letter, and the professional would take at least one more look and make any necessary changes before finalizing the document and subsequently placing it in the mail. Even with the advent of the computer, writers are still more likely to initially draft a letter and read it over at least once, allowing time to let it sit and later bring fresh eyes to the content. For many of us, we are surprised to discover upon the second reading that the draft reads differently than originally intended. Of course, letters are still part of the legal world, but more and more often attorneys communicate with clients and other parties through informal modes of communication, especially through email, which is the focus of this column. Referring to emails as an “informal” means of communication reveals one of the potential concerns with incorporating emails into legal practice. The process of drafting, rethinking, and rewriting rarely happens with email communications. Instead, business is oftentimes conducted at lightning speed, and we can be available through our smartphones 24/7 – while sitting in a meeting, walking down the sidewalk, or riding in a car. And the general feeling is that we need to respond immediately. The thinking part of the writing – certainly the part where we would let our draft sit for a period of time and then review it more objectively – is usually missing. But what seems like expediency and efficiency at the moment can produce negative results down the road. What follows are a few suggestions for writing professional emails.

Prof. Deborah B. McGregor IU McKinney School of Law Indianapolis, Ind. dmcgreg@iupui.edu

RES GESTÆ • OCTOBER 2014

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EMAIL COMMUNICATIONS continued from page 25 Informal email as a professional tool: considerations Informal emails may comprise long, rambling paragraphs or no paragraphs at all. However, you always help your reader if you make conscious choices about your email, similar to how you would write a letter on the firm’s letterhead. Consider the following general guidelines: ‘From’ and ‘To’ lines: More than likely your email address will include the name of your firm, which works well. Some writers, however, may write professional emails using their personal email. If you are one of those, for example, make sure your personal email address is appropriate. I have received emails from students whose email names include hotgirl@ and imtheman@. While these names may elicit a chuckle from the reader, they are not appropriate for communicating

with a professor, a supervising attorney, a client, a potential employer, or any other party in a professional capacity. Further, consider typing in the addressee in the “To” line last, which serves two purposes. First, this prevents you from sending the email accidentally before your correspondence is complete. Second, this may also encourage you to reread your message one last time in order to be sure it’s as you hoped it would be. Also, make sure you are actually sending the email to the party intended and only to the party intended. Do not be that attorney who sends a confidential settlement agreement to a national reporter rather than to another attorney working on the agreement by clicking on the wrong name in the attorney’s online address book.3 Do not be the one who replies to an e-discussion post about a job opportunity by accidentally replying to “All” (and your employer also happens

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RES GESTÆ • OCTOBER 2014

to be a member of that same e-discussion list). And do not be the author of a “Skadden”-like email, where an associate sent to members of the firm, including 20 partners, an email that bragged about his two-hour lunches at sushi bars and his time spent online with friends.4 The stories are endless but all with the same result. At a minimum there’s a degree of embarrassment involved and at the most a client’s case can be adversely affected. The ‘Subject’ (Re:) line and attachments: Consider writing a subject line that is specific enough so that your reader can immediately identify the purpose of the email but is as succinct as possible. And if there are a series of emails going back and forth between you and the other party, retain that subject line throughout your communications for quicker filing purposes and easier access, if needed, later on. If, however, the subject of the correspondence changes, consider altering the subject line to reflect the new topic. Further, weigh carefully when you send an email as high priority (!). Remember the story about the boy who continually cried wolf? If you send every email as high priority, your recipient may eventually consider them all as not high priority and not pay sufficient attention to the one that truly counts. Consider adding any attachments you want to include with the email when you are filling in the subject line. If not then, add the attachment when you are explaining the attachment in the body of the email. That way you are less likely to forget the attachment before sending the email. Before attaching the document, make sure all marginal comments on your attachment have been scrubbed. The salutation and introductory paragraph: The level of formality with a salutation in a business-


RG 10.14_RG 09.05 10/28/14 3:33 PM Page 27

related email depends on your relationship with the recipient. It’s never okay to start with “Hey” or “What’s up?” And formal form requires that you provide a salutation instead of just diving into the substance of the email, especially the first time you make contact. If you do not know the recipient well, consider a formal salutation such as “Dear Ms. Smith”; “Dear Sally,” if you know the client well; or “Sally” or “Hi, Sally,” if writing to a partner or other colleague.

country, make sure you specify to which time you are referring (e.g., “receipt in my office by 5 p.m. EST” or Beijing time). Finally, when closing your email, make sure to include your contact information in the signature block.

is more readable if you break up a longer message into readable blocks of text, beginning with a topic sentence or heading set apart from the text. Consider also spacing between each paragraph for readability.

Stylistic considerations

Always strive to be professional and courteous. The best way to

Use the format of your email to promote readability. A message

(continued on page 28)

Further, provide an introductory paragraph that not only sets out the purpose of the email but also explains any conclusions you’ve reached regarding the purpose of the email. In other words, tell the reader why you are writing right up front. If you are replying to an email, refer to the original email you received, for example, by referencing key information from the original email. If you are addressing multiple issues, set those out and number them in the same order in which you address them in the email, and then use those numbered points to create the structure of the rest of your email. Ideally, organize the information so the most important topic is addressed first. Finally, if you do need something specifically from the recipient, state that up front and then plan to add a gentle reminder at the end. Closing and signature: End by summarizing any key conclusions or points made as well as any further information needed in order to proceed. When further information is needed from your reader, delineate that information explicitly, ideally using bullet points, and provide any necessary and specific due dates (e.g., “receipt in my office by 5 p.m. on Nov. 1,” rather than “within the next two weeks”). And when communicating with someone in a different time zone or RES GESTÆ • OCTOBER 2014

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EMAIL COMMUNICATIONS continued from page 27 avoid writing an angry or “flaming” email is to delay writing anything until you are no longer angry or annoyed or inclined to vent. (Some writers may write that “reactionary” email first, to get it out of their system, and then proceed to write the actual professional email that will be sent.) Also, never use offensive language (again, thinking of it being passed along to the world and introduced in court), and DON’T USE CAPITAL LETTERS when writing an email. It always comes across as screaming. Further, you may be inclined to be less formal with a client you know well or an attorney representing the other party with whom you are close friends and socialize. But, before including that off-color joke or sarcastic private note, consider again that it may be later submitted as evidence in court. And use real

words instead of e-acronyms, e.g., by writing “By the way” instead of BTW, or emoticons, e.g., by writing “with pleasure” rather than “.” Strive for clarity. First of all, short, concise but complete sentences are ideal. And be aware of your audience as you write, making sure your reader can understand your message on one read through, without needing to reread it or refer to a dictionary. This is especially true when writing to a nonlawyer. Further, write a clean document; keep the reader focused on the message rather than you. This shift from the words to the writer often occurs when the email is riddled with grammatical and typographical errors. Unfortunately, it’s those errors that will likely be remembered long after the message matters.

Finally, make sure you say what you mean and mean what you say. Consider this actual email: Your food stamps will be stopped effective March 1992 because we received notice that you passed away. May God Bless You. You may reapply if there is a change in your circumstances. Department of Social Services Greenville, South Carolina5

While this is an extreme example of a message gone wrong, mistakes are made all the time, especially when a document is written hastily. While business – and life – may be moving at breakneck speed, the time taken to correct email errors later likely will far exceed the time taken to get it right the first time the email is sent. It pays to pause and count to three (or longer) before clicking on “Send.” 1. For more on inadvertent disclosure, see John T. Hundley, “Waiver of Evidentiary Privilege by Inadvertent Disclosure – State Law,” 51 A.L.R. 5th 603 (1997). 2. Saved for another day and another column are the legal effects of email disclaimers. If you are particularly concerned about the sensitive nature of your email or letter attached to an email, consider encrypting confidential clientrelated email. Multiple encryption services are available at sites such as Hushmail.com and ZipLip.com as well as the well-known companies like software.dell.com and business.att.com. Further, remember that once you push the “Send” button, you have more than likely officially lost control of the information in the email, although some emails may be recalled quickly if the email was sent to an address on the same server as where the email originated. See, e.g., www.jafaloo.com/recall-an-email-in-gmail. 3. Debra Cassens Weiss, “Did Lawyer’s Email Goof Land $1B Settlement on NYT’s Front Page?” (Feb. 6, 2008), www.abajournal.com/ news/article/lawyers_e_mail_goof_lands_ on_nyts_front_page. 4. Melinda Ligos, “The Awkward Rite of Summer: Hear the One About the Intern …” The New York Times (July 6, 2003), www.nytimes.com/2003/07/06/jobs/theawkward-rite-of-summer-hear-the-oneabout-the-intern.html. 5. www.lifeawarenesscenter.com/lighterside.html (last visited Aug. 30, 2014).

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Email checklist

requesting of the recipient, ideally as bulleted points for emphasis?

• Is the information appropriate for an email communication?

• Have you avoided e-acronyms (e.g., BTW) and emoticons (e.g., ) as well as anything that may be considered overly familiar?

• Is your relationship with the recipient one where a letter or memo format would be more appropriate? • Have you addressed the email to the appropriate party and only to the person(s) intended? • Is your subject line specific and concise? • Have you included any attachments referred to in the email? • Have you introduced the purpose of the email in the introduction and summarized what you are writing about? • For better readability have you focused on using short, concise sentences and breaking paragraphs with double spaces? • Have you summarized key points at the end of the email and reiterated any actions you are

IN

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• Do you feel comfortable about the content of your email – that you have said everything you wanted to say and nothing more; that you have said everything in a way that your recipient will readily understand; and that you have spent the necessary time to make sure it is presented in a professional manner, free of grammatical and typographical errors? • Have you provided your contact information for your recipient, ideally as part of a signature block? • Have you included a confidentiality disclaimer where appropriate (and ideally at the beginning rather than the end)? – Prof. Deborah McGregor @IUMcKinney

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RES GESTÆ • OCTOBER 2014

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By Kathy L. Osborn and Sarah C. Jenkins

Appellate civil case law update

RECENT DECISIONS 6/14

I

n June, the Indiana Supreme Court issued opinions in four civil cases, summarized below, and a Published Order Denying Petition to Transfer in the case Luttrell v. Lutrell, 994 N.E.2d 298 (Ind. Ct. App. 2013). The Supreme Court also granted transfer in one civil matter, which is summarized below. The Indiana Court of Appeals issued a total of 68 opinions in civil and administrative matters, 37 of which were unpublished opinions. Three of the Court of Appeals published decisions are summarized below. Full text of all Indiana appellate court decisions rendered during the month of June, including those issued not-for-publication, are available via Casemaker at www.inbar.org or the Indiana Courts website, www.in.gov/judiciary/opinions.

INDIANA SUPREME COURT CASES Baseball field patron who was warned of the danger of foul balls precluded from Kathy L. Osborn bringing premises Faegre Baker Daniels LLP liability, negligence Indianapolis, Ind. claims kathy.osborn@FaegreBD.com

Sarah C. Jenkins Faegre Baker Daniels LLP Indianapolis, Ind. sarah.jenkins@FaegreBD.com

30

Plaintiff DeJesus was hit in the face with a foul ball while attending a minorleague baseball game. South Shore Baseball, LLC d/b/a Gary South Shore RailCats and Northwest Sports Venture, LLC v. DeJesus, 11 N.E.3d 903 (June 27) (Massa, J.). As a result, DeJesus suffered several fractured facial bones and permanent blindness in her left eye.

RES GESTÆ • OCTOBER 2014

She sued South Shore Baseball and the Steelyard for premises liability, alleging that they breached their duty to her by failing to extend the protective netting far enough along the foul ball lines. She also claimed that the defendants were negligent in the design, construction and maintenance of the ballpark by failing to provide sufficient protective screening. Defendants filed a motion for summary judgment, which the trial court denied. The trial court then certified the order for discretionary interlocutory appeal, and the Court of Appeals accepted jurisdiction. On appeal, the Court of Appeals reversed the trial court’s order, determining that there was no genuine issue of material fact as to either DeJesus’ premises liability claim or her negligence claim. On transfer, the Indiana Supreme Court also determined that the trial court erred in failing to grant the defendant’s motion for summary judgment. The Indianapolis Indians filed an amicus curiae brief, requesting the Supreme Court to adopt the “Baseball Rule” adopted by many other jurisdictions, which provides that a ballpark operator satisfies his duty of reasonable care to spectators by providing screened seats in the grandstand and giving plaintiff the opportunity of occupying one of those seats. The Supreme Court declined to adopt this rule, noting, “we are not convinced any sport, even our national pastime, merits its own special rule of liability.” In addition, the Court noted that the legislative branch is entrusted with decisions of public policy should it decide to adopt the Baseball Rule in a statutory form as many other state legislatures have done. Nonetheless, the Court concluded that DeJesus’ premises liability claim failed because South Shore had notified her of the

danger of foul balls by printing a warning on her ticket, posting a sign in the aisle near her seat, and making an announcement over the loudspeaker before the beginning of the game. For strict liability to ensue, the landowner must have expected that the invitee would not discover or realize the danger or would fail to protect himself/herself against it. Based on South Shore’s efforts to warn DeJesus of the danger of foul balls, it would have no reason to believe that DeJesus would not realize the danger or that she would not protect herself against it. The Court also found that defendants were entitled to summary judgment on DeJesus’ negligence claim because she did not allege an increased risk of harm and could not establish reliance. Indiana has adopted the rule laid down in the Restatement (Third) of Torts: Physical and Emotional Harm §42 (2012), which provides that an actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if (a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or (b) the person to whom the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking. DeJesus testified in her deposition that she had seen foul balls enter the stands at baseball games before and knew there was a chance that a foul ball could come her way. As a result, the evidence showed that DeJesus was not relying on the netting to protect her from the danger of foul balls, entitling the defendants to summary judgment.


RG 10.14_RG 09.05 10/28/14 3:33 PM Page 31

An award of treble damages under Indiana’s Sales Representative Act is not subject to Punitive Damages Act’s ‘clear and convincing’ evidentiary standard or diversion of three-quarters of the award to the State In Andrews v. Mor/Ryde, International, Inc., the Supreme Court simultaneously granted transfer and held that treble damages awarded under Indiana’s Sales Representative Act are not subject to the Punitive Damages Act. 10 N.E.3d 502 (June 19) (Rush, J.). After Mor/Ryde terminated Andrews’ sales representative contract, Andrews sued Mor/Ryde for unpaid commissions pursuant to the Indiana Sales Representative Act codified at Indiana Code Section 24-4-7. The Sales

Representative Act requires certain businesses to pay their commissioned wholesale sales agents all accrued commissions within 14 days of terminating the principalagent relationship. A principal who fails in bad faith to comply with the act “shall be liable [ ] for exemplary damages in an amount no more than three (3) times the sum of the commissions owed to the sales representative.” Ind. Code §24-47-5(b). Mor/Ryde moved the trial court to hold that “exemplary damages” under the Sales Representative Act are subject to Indiana’s statutory restrictions on awards of “punitive damages” under Indiana Code Sections 3451-3-2 and -6, which require proof by “clear and convincing evidence” and diversion of three-quarters of the award to the State. The trial

court agreed with Mor/Ryde that the punitive-damage restrictions applied, and the Court of Appeals affirmed in a divided opinion. On transfer, the Supreme Court reversed, relying on its holding in Obremski v. Henderson, 497 N.E.2d 909, 911 (Ind. 1986), in which it held that a similar trebledamage award under the victim of crimes statute was not limited by the Punitive Damages Act. As in Obremski, the Court determined that the Legislature enacted the Sales Representative Act to increase the recovery from what the common law would otherwise permit, whereas the Punitive Damages Act targets the type of discretionary, open-ended punitive damage awards available at common law. Thus, the Court found it “highly (continued on page 32)

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RECENT DECISIONS 6/14 continued from page 31 unlikely that the Legislature would expand a remedy with one hand (the Sales Representative Act or the Crime Victims Relief Act), while restricting it with the other (the Punitive Damages Act).” The Court also found it telling that the Legislature did not abolish its distinction announced in Obremski between common law and statutory damage awards as part of its 1995 amendments to the Punitive Damages Act.

The Fraudulent Concealment Statute may toll the Wrongful Death Statute’s two-year statute of repose In a matter of first impression, the Supreme Court held that the Fraudulent Concealment Statute may toll the two-year filing period for a wrongful-death action if a plaintiff makes the necessary factual showing. Alldredge v. Good

Samaritan Home, Inc., 9 N.E.3d 1257 (June 3) (Massa, J.). This case centered on the wrongful death of Venita Hargis, who was living at the Good Samaritan Home in November 2006. On Nov. 17, a nurse called Hargis’ daughter and told her that Hargis had suffered a fall. On Nov. 26, Hargis died as a result of the head injury she sustained in the alleged fall. Nearly three years later, a former employee of Good Samaritan told one of Hargis’ daughters that the head injury actually had been caused by another resident attacking Hargis and pushing her to the floor. Hargis’ family opened an estate for Hargis in December 2010 to pursue a wrongful death action, alleging that Good Samaritan negligently caused Hargis’ death and then fraudulently concealed its negligence. Good Samaritan moved to dismiss, arguing that plaintiffs were

barred from recovery for failure to file their action within two years of Hargis’ death as required by the Wrongful Death Act. The trial court granted Good Samaritan’s motion to dismiss, and the Court of Appeals reversed in part, holding that the plaintiffs had two years from the discovery date to file their complaint but that the Fraudulent Concealment Statute did not apply. On transfer, the Supreme Court reversed the trial court’s grant of summary judgment and remanded. The Court held that when a plaintiff can prove that the Fraudulent Concealment Act applies, it will effectively move the date on which the statute of limitations begins to run from the date of the alleged tort to the discovery date. In most instances, this means that the availing party will need to demonstrate affirmative acts of concealment calculated to mislead and hinder the plaintiff from obtaining information by the use of ordinary diligence, or to prevent inquiry or elude investigation. However, in instances where the parties are in a fiduciary relationship such that the defendant had a duty to disclose the existence of the claim to the plaintiff, the concealment need not be active. In coming to this conclusion, the Court relied in large part on public policy considerations and a concern for incentivizing fraud, which would thwart the purpose of the Fraudulent Concealment Statute.

The plain language of an uninsured motorist policy did not provide coverage for property damage when there was no bodily injury Under the plain and unambiguous language of the policy, an uninsured motorist policy did not provide coverage for an uninjured insured involved in a hit-and-run accident. Robinson v. Erie Ins. 32

RES GESTÆ • OCTOBER 2014


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Exchange, 9 N.E.3d 673 (June 10) (Dickson, C.J.). The Robinsons had obtained a family auto insurance policy from Erie Insurance Exchange to cover a 1998 Nissan Altima. The Nissan was declared a total loss after a Jeep ran a red light, struck the car, and left the scene of the accident. Bryan Robinson, who had been driving the Nissan, was uninjured. Erie denied coverage of the vehicular damage under its uninsured motorist policy, and the Robinsons filed a complaint. Erie filed a motion for summary judgment, which the trial court granted. On appeal, the Court of Appeals reversed, and the Supreme Court granted transfer. The Court considered Erie’s policy, which promised to “pay damages for bodily injury and property damage that the law entitles ‘anyone we protect’ or the legal representative of ‘anyone we protect’ to recover from the owner or operator of an ‘uninsured motor vehicle’ or ‘underinsured motor vehicle.’” The policy then defined “uninsured motor vehicle” to mean, in part: a hit-and-run “motor vehicle.” The vehicle must cause bodily injury to “you” by hitting “you,” an “auto we insure” or a vehicle “you” are occupying.” The identity of the driver and owner of the hit-and-run vehicle must be unknown ... .

The Court found that Erie’s policy provisions were not ambiguous. It determined that under these facts, where there was no resulting bodily injury, the Erie policy did not provide any uninsured motorist coverage relative to the hit-andrun Jeep that struck the Robinsons’ vehicle. “In the context of a hitand-run driver causing an accident, the availability of uninsured motorists coverage (which depends on whether the other vehicle fits one of the three Erie policy meanings for ‘uninsured motor vehicle’)

is solely determined by the third meaning, which expressly includes a ‘hit-and-run motor vehicle’ whose driver and owner are unknown, but only if the other vehicle causes bodily injury to the insured.”

INDIANA SUPREME COURT TRANSFER GRANTS The Indiana Supreme Court granted transfer in one civil case in June. In Re the Adoption of J.T.D. & J.S., 5 N.E.3d 786 (Ind. Ct. App. 2014) (addressing whether the probate court had exclusive jurisdiction over all adoption proceedings preventing transfer to the Juvenile Court where a termination of parental rights proceeding was pending).

SELECT INDIANA COURT OF APPEALS CASES Six-year statute of limitations for breach of promissory note begins to run from date creditor exercises its option to accelerate due date for the balance of the loan A bank’s repossession of collateral was an affirmative act that accelerated the final maturity of a debt and triggered the six-year statute of limitations. Imbody v. Fifth Third Bank , 12 N.E.3d 943 (June 27) (Najam, J.). Imbody obtained a loan from Fifth Third to purchase a Chevrolet Trailblazer. The loan agreement provided that, in the event of default, Fifth Third had the option “to accelerate without notice or demand the final maturity of all the obligations secured.” When Imbody defaulted on the loan in May 2006, Fifth Third repossessed and sold the truck, leaving a deficiency balance of $14,896.32 on the debt. Imbody agreed to pay Fifth Third $100 per month toward the debt, but only

made 14 of those payments with the final payment made on Feb. 29, 2008. Fifth Third filed a complaint against Imbody in June 2012. The trial court entered judgment in favor of Fifth Third, and Imbody filed a motion to correct error, arguing that Fifth Third’s complaint was time-barred under the six-year statute of limitations applicable to written contracts for the payment of money. On appeal, the Court of Appeals found that when an installment contract contains an optional acceleration clause, by which the creditor may declare all installments on the loan immediately due and payable after default, the statute of limitations to collect the entire debt does not begin to run immediately on the debtor’s default but only when the creditor exercises its option to accelerate. Here, Fifth Third took an affirmative act to make it clear to the debtor that it had accelerated the obligation by repossessing the debtor’s truck in May 2006. Therefore, the six-year statute of limitations began to run when Fifth Third repossessed the truck, not when the borrower made his last payment on the deficiency balance. Because Fifth Third failed to file its complaint within the sixyear time period, the trial court should have entered judgment in favor of Imbody.

Account holder required to reimburse bank that lost deposited check for shortage in account The case of Sapp v. Flagstar Bank involved an overdrawn account and a lost check. 12 N.E.3d 913 (June 26) (Baker, J.).* In 2005 Sapp opened an account with Flagstar in the name of his family’s limited liability company. Sapp, the sole signatory on the account, (continued on page 34) RES GESTÆ • OCTOBER 2014

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RECENT DECISIONS 6/14 continued from page 33 initially deposited $560.63 in the account in August 2005. Shortly thereafter, Sapp also deposited a check in the amount of $125,000. Sapp received a receipt notifying him that all deposits/payments were subject to proof, but he was given provisional credit for the deposit consistent with the terms of his account agreement with the bank. Flagstar lost the check, and its representatives contacted Sapp, asking for his assistance in identifying the maker of the check. Ultimately, Sapp was unable to identify the remitter or the bank that purportedly issued the check. Sixteen days after depositing the $125,000 check, Sapp wrote a check from the Flagstar account for $100,000. Afterward, he also made various other payments from the account. As a result, when Flagstar debited Sapp’s account for the unrecovered $125,000, it was only able to recover $1,965.37.

Flagstar sued Sapp to recover the shortage, alleging breach of contract, theft and unjust enrichment. The trial court initially granted summary judgment in favor of Flagstar on all claims. A prior panel of the Court of Appeals held that the trial court erred in entering summary judgment on the breach of contract case but affirmed summary judgment on the remaining two claims. After remand and following a bench trial, the trial court entered judgment in favor of Flagstar on its breach of contract claim, awarding Flagstar the shortage from Sapp’s overdrawn account as well as the bank’s attorney fees and costs incurred in the litigation. On appeal, Sapp argued that the trial court erred in not finding Flagstar negligent for losing the check. The Court of Appeals disagreed, finding that it was incumbent on Sapp to prove negligence, which he failed to do. Sapp also

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claimed that the trial court erred in holding him personally liable for the shortage in the account. The parties’ account agreement stated that the account holder “agreed to be jointly and severally liable for any account shortage resulting from charges or overdrafts, whether caused by you or another with access to this account.” Because Sapp was the only signatory on the account, he was personally liable for any account shortage resulting from charges or overdrafts, caused by him or another. Next, Sapp claimed that the trial court erred in determining that Flagstar preserved its ability to perform a charge back to the account because it had waited too long to notify him of the lost check under the parties’ agreement and under the Uniform Commercial Code (“UCC”). The account statement clearly provided that the bank preserved the right to charge back to the account, stating: “Please remember that even after we have made funds available to you, and you have withdrawn the funds, you are still responsible for checks you deposit that are returned to us unpaid and for any other problems involving your deposit.” As to the UCC, it provides, in part, that “[i]f the return or notice is delayed beyond the bank’s midnight deadline or a longer reasonable time after it learns the facts, the bank may revoke the settlement, charge back the credit, or obtain refund from its customer, but it is liable for any loss resulting from the delay.” Ind. Code §26-1-4-214(a). In construing this provision the court determined there was nothing within the statute prohibiting Flagstar from revoking the provisional credit. Instead, it specifically permits Flagstar to revoke the credit after the midnight deadline so long as the item received by the (continued on page 36)

34

RES GESTÆ • OCTOBER 2014


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RG 10.14_RG 09.05 10/28/14 3:33 PM Page 36

RECENT DECISIONS 6/14 continued from page 34 bank was not finally settled. Lastly, the court held that the trial court properly awarded Flagstar its attorney fees and costs pursuant to the parties’ contract, and it remanded the case for the trial court to determine the proper amount of appellate attorney fees that should be awarded to Flagstar.

Transfer on Death Property Act may apply retroactively to promissory notes The Transfer on Death Property Act may apply to promissory notes executed prior to the Act’s enactment. In re Estate of Rupley, 12 N.E.3d 900 (June 25) (May, J.; Riley, J., concurring in

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

part and dissenting with separate opinion). Charles Rupley borrowed $2,500 from Ruth Rupley in March 2006. Around the same time Charles and Ruth executed a promissory note that said it was payable to Charles upon Ruth’s death. Ruth died in October 2008. In October 2012 the personal representative filed a petition requesting instructions as to whether the note balance transferred to Charles at Ruth’s death, was an asset of Ruth’s estate or was forgiven by Ruth upon her death. The trial court issued an order directing the personal representative to include the note as an asset of Ruth’s estate. On appeal, the Court of Appeals held that the Transfer on Death Property Act clearly indicates that it applies retroactively to a “transfer on death security, transfer on death securities account, and pay on death account created before July 1, 2009.” The court determined that the note was a pay on death account and therefore retroactively subject to the Transfer on Death Property Act. Because the note met the statutory requirements of a pay on death account, it should have transferred directly to Charles upon Ruth’s death, and the trial court erred in concluding that the note was an asset of Ruth’s estate. Judge Riley concurred in part and dissented in part, stating that the note could not be both a promissory note and a payment on death account under the Act. Nonetheless, she concluded that the trial court erred in concluding that the note was an asset of the estate because the note fell within the purview of Indiana Code Section 32-17-11-28(1), causing it to become a non-testamentary asset. * Asterisked cases indicate those in which one of the authors, or other members of the authors’ firm, Faegre Baker Daniels LLP, represented one or more of the parties or amici.

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Kathy L. Osborn, Indianapolis, is a partner at Faegre Baker Daniels and practices in the areas of business, antitrust and appellate litigation. She is a three-time graduate of Indiana University, B.S. Biology, magna cum laude, B.A. Religious Studies, summa cum laude, and J.D. with Gender Studies minor, magna cum laude. After graduating from Indiana University Maurer School of Law, she served as a law clerk in the Indiana Supreme Court to former Associate Justices Frank Sullivan Jr. and Myra C. Selby. Contact Kathy at 317/237-8261 or kathy.osborn @FaegreBD.com. Sarah C. Jenkins, Indianapolis, is an associate at Faegre Baker Daniels and practices in the areas of business, probate and appellate litigation. She graduated with highest distinction from Indiana University with degrees/majors in journalism, French, political science and underwater resource management. After graduating magna cum laude from Indiana’s Maurer School of Law, Sarah served as a law clerk to the Hon. Judge Paul D. Mathias on the Indiana Court of Appeals before joining the firm. Contact Sarah at 317/237-1347 or sarah.jenkins@FaegreBD.com.

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RG 10.14_RG 09.05 10/28/14 3:33 PM Page 39

By Jack Kenney

Public intoxication, juvenile sentences, other holdings

Resisting law enforcement – order to stop must be based on reasonable suspicion To avoid conflict with the Fourth Amendment, the Indiana Supreme Court in Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014), unanimously held that a person cannot be prosecuted for resisting law enforcement by fleeing under Ind. Code §35-44.1-3-1(a)(3) unless the officer has, at a minimum, the reasonable suspicion necessary to conduct a Terry stop. In this case, a police officer responded to a “disturbance” at a residence and upon arriving attempted to “corral” everyone in the front yard in order to watch them until backup arrived. Id. at 1252. Keion Gaddie ignored the officer’s order and walked away from the residence and the officer. The officer radioed for help, and eventually another officer intercepted Gaddie, who was arrested and charged with resisting law enforcement by fleeing. Id. A statute that criminalizes walking away from a police officer who, without reasonable suspicion or probable cause, has ordered the person to stop would violate longstanding Fourth Amendment principles and the “well-established freedom to walk away.” Id. at 1254. The language of the resisting law enforcement statute does not require that a police officer’s order to stop be lawful, but the Court prefers to construe the statute

in a manner that does not violate the Constitution. As such, it held the statutory element “after the officer has ... ordered the person to stop” must be understood to require that such order to stop rest on probable cause or reasonable suspicion that criminal activity is afoot. Id. at 1255. Because the officers in this case lacked the reasonable suspicion necessary to conduct an investigatory stop of Gaddie, the evidence was insufficient to convict him of resisting law enforcement by flight. Cf. Murdock v. State, 10 N.E.3d 1265 (Ind. 2014) (under the statutory interpretation announced in Gaddie, evidence was sufficient to establish reasonable suspicion for a police officer to order the defendant to stop).

Public intoxication – sufficient proof of endangerment To support a conviction under Indiana’s amended public intoxication statute, the State must prove beyond a reasonable doubt that the defendant, while in a public place, endangered either himself or others, breached or was in imminent danger of breaching the peace, or harassed, annoyed or alarmed another person. See Ind. Code 7.1-5-1-3(a). In Thang v. State, 10 N.E.3d 1256 (Ind. 2014), a 3-2 majority of the Indiana Supreme Court found sufficient circumstantial evidence that Tin Thang endangered himself or others. When a police officer came out of the restroom at a gas station while on patrol, the cashier alerted him that Thang might be intoxicated. Thang was unsteady, smelled of alcohol and had bloodshot eyes. The officer also saw a car in the parking lot that was not there before and keys in Thang’s hands. No one else was present at the gas station. Id. at 1257.

Chief Justice Dickson’s majority opinion drew a distinction between the element of “endangerment” in the public intoxication statute and the similar element in the Class A misdemeanor operating while intoxicated (OWI) statute. Factfinders are generally allowed to draw reasonable inferences from the evidence. But after the 2001 amendment to the OWI statute, the State is required to submit additional evidence of “endangerment” beyond mere intoxication to support a Class A misdemeanor OWI conviction. See Outlaw v. State, 929 N.E.2d 196 (Ind. 2010). The majority in Thang declined to apply the same reasoning to the amended public intoxication statute; therefore, the general rule that factfinders may draw reasonable inferences from the evidence permitted the factfinder here to infer that Thang endangered himself or another by driving to the gas station while he was intoxicated. Thang v. State, 10 N.E.3d at 1259. Justice David, in a dissenting opinion joined by Justice Rucker, expressed his belief that the legislature distinguished between “intoxication” and “endangerment” and that there was no evidence to support an inference that Thang drove in a manner that endangered anyone. Id. at 1262-64.

CRIMINAL JUSTICE NOTES 6/14

A

s in past years, the Indiana Supreme Court issued several opinions during the month of June – the last month of its fiscal year. The Court issued opinions on a variety of issues, including Indiana’s resisting law enforcement and public intoxication statutes, prosecutorial misconduct, sentencing considerations for juveniles and consent to home entry.

Reversal not warranted for prosecutorial misconduct During the prosecutor’s closing argument in Bruce Ryan’s jury trial for Class C felony sexual misconduct with a minor charges, she made multiple comments that Ryan claimed to be misconduct but were not objected to at trial. First, the prosecutor stated: “I want to be really clear, we are here (continued on page 40)

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

RES GESTÆ • OCTOBER 2014

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RG 10.14_RG 09.05 10/28/14 3:33 PM Page 40

CRIMINAL JUSTICE NOTES 6/14 continued from page 39 because everyone has a right to have a jury trial. We’re not here because he didn’t do it; we’re here because he wants to get away with it. So don’t let him, thank you.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). The Supreme Court rejected Ryan’s argument that this comment negatively implicated the exercise of his right to a jury trial. Second, the prosecutor argued that the defense argument is “how guilty people walk” and “a classic defense attorney trick.” Id. at 669. Although the Court found these comments violated the Rules of Professional Conduct, they did not place Ryan in a position of grave peril and as such did not constitute misconduct. Id. at 670. Finally, the prosecutor asked the jury to look at the “bigger picture” and told them that they are in “an incredible position to stop” this type of criminal behavior and “send the message

that we’re not going to allow people to do this.” Id. at 671. This clearly invited the jury to convict for reasons other than guilt and constituted improper conduct. However, the comments did not constitute fundamental error because they did not have “an undeniable and substantial effect on the jury’s decision” that made a fair trial impossible. Id. at 672. In contrast, the Court of Appeals found fundamental error in a different case involving the same Marion County prosecutor in an opinion handed down the day before Ryan was decided. Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014), was a child molesting and sexual misconduct with a minor prosecution that hinged largely on the credibility of witnesses. The prosecutor improperly distinguished the roles of the prosecution and defense, vouched for the

credibility of the witnesses and the justness of the cause, and asked argumentative and inflammatory questions. As in Ryan, the prosecutor’s comments “impugned the integrity of defense counsel and demeaned the role of defense counsel,” and the court reversed and remanded for a new trial because the cumulative effect of the misconduct placed Brummett in grave peril, making a fair trial impossible. Id. at 85-86, 88.

Appellate review of juvenile sentences In Brown v. State, 10 N.E.3d 1 (Ind. 2014), and Fuller v. State, 9 N.E.3d 653 (Ind. 2014), companion cases handed down the same day, the Indiana Supreme Court significantly reduced the 150-year sentences for two juveniles who were convicted of two counts of murder and one count of robbery. The Court reduced the maximum sentences to 80 years for Brown, who was 16 years old at the time of the incident, and 85 years for 15-year-old Fuller. In the decision, the Court followed United States Supreme Court cases that have laid the roadmap for age as a consideration in sentencing – “that juveniles are less culpable than adults and therefore are less deserving of the most significant punishments.” Brown v. State, 10 N.E.3d at 7 (citing Graham v. Florida, 560 U.S. 48, 68 (2010)). The Court noted that juveniles have a “lack of maturity and an underdeveloped sense of responsibility,” based in part on the fact that important areas of their brains are not yet fully developed. Second, they are more susceptible to negative pressure from others and have less ability to “extricate themselves from horrific, crime-producing settings.” Id. (quoting Miller v. Alabama, 132 S.Ct. 2455, 2464 (2012)). Finally, their character

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RG 10.14_RG 09.05 10/28/14 3:33 PM Page 41

is not as well formed as adults, and bad acts are less likely to be based on “irretrievable depravity.” Id. Brown also had a history of alcohol and marijuana use since the age of 10, which does not necessarily indicate bad character. Id. at 6 (citing Chief Justice Roberts’ concurring opinion in Graham, regarding the mitigating nature of a childhood that led to early drug and alcohol use). To give the maximum sentence for these youthful offenders “forswears altogether the rehabilitative ideal.” Id. at 8 (citations omitted). It “means [a] denial of hope … that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of the [juvenile] convict, he will remain in prison the rest of his days.” Id.

Valid consent to search despite threat of removal of child “If police imply that the defendant has no right to resist a search, any purported ‘consent’ will be found invalid. Such coercion may be implied by what police say.” See McIlquham v. State, 10 N.E.3d 506, 511 (Ind. 2014). Even considering the undisputed facts that favor McIlquham, the Indiana Supreme Court found no coercive words or actions to invalidate the consensual police entry of his home. McIlquham’s toddler was found unsupervised and half-naked wondering around a retention pond. McIlquham arrived after the police had already found the child. McIlquham approached the police, who told him that they “would probably end up getting ahold of CPS” and that they “needed to come back to [McIlquham’s] apartment” to verify safe living conditions. Id. at 512. McIlquham walked back to his apartment with the police, opened the door for them, and “immediately made

a bee line for the kitchen,” in which he started making furtive movements. Id. at 509. Police patted McIlquham down and found marijuana. Later, the toddler’s mother signed a consent for the police to search the home, resulting in the discovery of more marijuana and a gun. The Court found “little practical difference” between police colloquially stating that they “needed to come back to McIlquham’s apartment” and asking whether they may do so. Id. at 512. As such, McIlquham’s consent was not a mere acquiescence to authority. Thus, McIlquham consented by words and actions to the police entering his home, and his furtive movements inside the home justified the pat-down for officer safety. Id. at 513.

Inaccurate translation of rights invalidated guilty plea Before entering into a guilty plea, the defendant must be advised of his right to trial by jury, confrontation and right against self-incrimination. See Boykin v. Alabama, 395 U.S. 238 (1969). In Ponce v. State, 9 N.E.3d 1265 (Ind. 2014), Victor Ponce’s guilty plea to two counts of delivering cocaine was not knowing, intelligent and voluntary because the Spanish translation of his Boykin rights was inaccurate and “wholly inadequate.” It did not matter that Ponce said he understood the translated advisements because this establishes only that he understood an inaccurate translation of his rights. A person “‘may fully understand and even acknowledge to others an understanding of what is in actuality an inaccurate interpretation of the proceedings. Put another way, one can understand perfectly the words spoken by an interpreter who tells you the wrong thing.’” Id. at 1271 (quoting Diaz v. State, 934 N.E.2d 1089, 1095 (Ind. 2010)).

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RG 10.14_RG 09.05 10/28/14 3:33 PM Page 42

By Carol Kennedy-Armbruster, Ph.D.

Inactivity physiology – too much sitting time?

W

FIT TO PRACTICE

e have known for years that the benefits of regular physical activity to help prevent major health diseases are clear and unanimous. Rarely do you visit your doctor and leave without them saying: “You ought to exercise more and eat better; that will help you maintain and/or improve your overall health.” Current public health guidelines are promoting at least 150 minutes per week of moderate- to vigorousintensity physical activity in order to be healthy. As of 2012 Indiana ranks 41st in health indicators (obesity, smoking, diabetes, sedentary lifestyle combined) compared to our fellow states. We have some work to do! In order to improve our overall state statistics and help ourselves be healthier, we need to consider moving more at work and during our leisure time. Recent studies have suggested that prolonged bouts of sitting time and lack of whole-body muscular movement are strongly associated with obesity, abnormal glucose metabolism, diabetes, metabolic syndrome, cardiovascular disease risk and cancer as well as total mortality independent of moderateto vigorous-intensity physical activity. This may come as a surprise to many exercisers that either run in the morning before work or take a noon walk. A possible new paradigm of inactivity physiology has been proven by many researchers. This new way of thinking emphasizes the distinction between Carol Kennedy- not exercising and the Armbruster, Ph.D. health consequences Senior Lecturer of sedentary behavior Indiana University that is limiting everySchool of Public Health day-life non-exercise Department of Kinesiology Bloomington, Ind. activity. Until now, the cakenned@indiana.edu expression “sedentary

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RES GESTÆ • OCTOBER 2014

Consider a walking meeting with (L-R) Julia L. Orzeske, executive director of the Indiana Commission for CLE; Terry L. Harrell, executive director of Indiana JLAP; and Supreme Court Justice Steven H. David. behavior” has misleadingly been used as a synonym for not exercising. Sedentary time should be defined as muscular inactivity rather than the absence of exercise. This new paradigm of inactivity physiology or sitting time is based on four issues: 1. Sitting and limiting non-exercise activity independently increase disease risk. 2. Sedentary behavior (not choosing to exercise) is another risk factor. 3. The molecular and physiological response in the body of too much sitting is not always the same as the response that follows a bout of additional physical activity. 4. If you are already insufficiently physically active you could increase your risk even further with prolonged sitting. The solution to this dilemma for many is to look at your sitting time whether you exercise or not and try to reduce it. If you reduce

your sitting time you will be healthier overall – this is what the new “inactivity physiology” research is touting. What kinds of things could you do to reduce sitting time? 1. Have a walking meeting versus a sit-down meeting. 2. Encourage standing at work versus sitting by looking into standing desks and/or stand at your next meeting occasionally. 3. Climb the stairs versus take the elevator. 4. Walk to a restroom that is farther from your office than just down the hall. 5. Perform 5-10 sit-to-stand movements at your desk per hour to reduce sitting time and increase blood flow in your lower body. 6. Walk to deliver a message within your office versus sending it via email. 7. Walk/pace while you are having a phone conversation in your office.


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Some have touted this lack of movement in our day (inactivity physiology) as a health risk that could be as great as smoking: http://pittsburghquarterly.com/ index.php/Personal-health/issitting-the-new-smoking.html. If you Google juststand.org, you will find even more information on how sitting time is not only detrimental to our health; but we also DON’T LIKE IT! So, why do we sit so much? Is it because the “norm” is to sit at work? Over the last 40 years we have replaced much of our daily movement with either technology and/or devices. Think about it – when was the last time you: • opened your garage door by hand? • raked your leaves using a real rake and not a blower? • mowed your lawn using a mower that was not self-propelled? • opened a can using a regular can opener? • drove around a parking lot to find the closest space? • shopped online versus going to the mall because it was easier? These are just a few examples of ways we have replaced daily movement with activities that are less intense and require less muscle movement. It’s no wonder we are discussing “inactivity physiology” as a health risk factor. Awareness is the first factor in tackling a health risk; look around and see what you can do to “move more, sit less and be well!”

Annual Report shows nearly 1,000 cases considered by Supreme Court he Supreme Court annual report (July 1, 2013 - June 30, 2014) is now available. The report provides information about the work of the Court and its affiliated agencies. Chief Justice Loretta H. Rush explained, “The annual report provides a substantial overview of Supreme Court cases, opinions and projects. Details are always available at courts.in.gov, but this report allows readers a snapshot of the breadth of work for a one-year period.” Read the report at courts.in.gov/supreme/ files/1314report.pdf. During the fiscal year, the Court was asked to review 995 cases. The five justices –Loretta H. Rush, Brent E. Dickson, Robert D. Rucker, Steven H. David and Mark S. Massa – read thousands of pages of briefs to determine which cases to grant transfer (accept as a Supreme Court case). Other reported statistics include: • 94 majority opinions handed down by the Court • 81 percent of the opinions handed down were unanimous (5-0 or 4-0) • 80 oral arguments were heard

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Details on each of the Supreme Court agencies are also available in the report. Photographs taken throughout the year show the Court’s interaction with students, community members and the press. Narratives in the report from various Supreme Court agencies showcase the following: • The Odyssey case management system will soon be used by the Supreme Court. • Case data from 1.6 million new trial court cases was collected. • 102 hours of instruction were provided to judges statewide. • 584 of 823 applicants passed the Indiana Bar Exam. • A new version of the mediator registry launched (1,291 mediators online). • 81 final orders were issued in attorney discipline cases. • One case included formal discipline of a judge. • Health issues that impact senior lawyers are a focus of assistance programs. • Public outreach included 349 tweets. Past annual reports can be found at courts.in.gov/supreme/ 2484.htm. Later this year the Indiana Judicial Service Report, which details the work of the trial courts, will also be available on the Court’s website.

RES GESTÆ • OCTOBER 2014

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RES GESTÆ • OCTOBER 2014

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

Employment Opportunities

LITIGATION ATTORNEY: Lafayettebased law firm seeks litigation lawyer with a minimum of 5 years’ experience handling medical malpractice and/or healthcare related litigation, including first chair jury experience. Send résumés to Karen R. Orr, Stuart & Branigin LLP, P.O. Box 1010, Lafayette, IN 47902-1010 or kro@stuartlaw.com.

BUSINESS ATTORNEY: Growing Lafayette/Indianapolis law firm is seeking a business attorney to handle a broad variety of business and corporate matters at our Indianapolis office. A successful candidate should have at least 3 years of experience in business law. Interested and qualified candidates should email a cover letter, résumé and salary requirement to careers@ gutweinlaw.com. For more information, visit www.gutwienlaw.com. WELL-ESTABLISHED LAW FIRM in Indianapolis is seeking an associate with 5-10 years of experience for its civil litigation practice. Please send résumé to Ricardo Hall, rhall@sjdlaw.com. LAFAYETTE LAW FIRM seeks legal assistant (certified or non-certified) with 5+ years’ experience in corporate/ transactional/real estate. Please send cover letter, résumé and salary requirements to spb@bennettlaw.com.

NORTHWEST Indiana firm seeking family law attorney: Law office with established practice in northwest Indiana is seeking an associate with 2-5 years of family law experience. We offer a competitive salary, benefits and potential for growth. All inquiries will be held in strict confidence. Send your cover letter, résumé and any salary requirements by email to nwifirm56@gmail.com.

Employment Desired

WORKER’S COMPENSATION. Evansville attorney Kevin R. Bryant seeks referrals on worker's compensation cases statewide. Please telephone 812/437-9991.

INDIANAPOLIS IMMIGRATION attorney seeks professional or co-counsel positions with Indiana attorneys in the practice of immigration law. Over 25 years’ experience in immigration. Will handle adjustment of status, change of status, labor certificates and other matters. Also, will attend interviews at Indianapolis Immigration Office. Thomas R. Ruge, Lewis & Kappes, P.C., 317/639-1210, truge@lewis-kappes.com EMPLOYMENT LITIGATION Indianapolis area attorney available for referrals and co-counsel affiliations on wide range of employment matters. 25+ years of experience representing businesses and employees. Robert S. Rifkin, Maurer Rifkin & Hill, P.C., 317/844-8372.

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 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. ERISA CLAIMS, long-term disability, health insurance claims, life insurance claims. Contact Bridget O’Ryan, 317/255-1000, 1901 Broad Ripple Avenue, Indianapolis, IN 46220, boryan@oryanlawfirm.com

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

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


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CALIFORNIA LAWYER since 1966. AV-rated. Member, ISBA. Father and brother practiced many years in Marion. Enjoys interacting with Indiana lawyers. Handles transactions, ancillary probates and general and complex litigation in all California state and federal courts. Law Offices of John R. Browne III, a Professional Corporation, 50 California St., Suite 3500, San Francisco, CA 94111; tel., 415/421-6700; fax, 415/398-2438; email, johnrbrowne@sbcglobal.net; www.jbrownelaw.com VETERANS DISABILITY. Accepting referrals of veterans' disability, military Medical and Physical Evaluation Boards, Courts Martial, military discharge upgrade and Boards for Correction of Military Records cases throughout Indiana and across the country. Bosley & Bratch, 800/9536224, rbratch@lawyers4veterans.com, www.lawyers4veterans.com FLORIDA ANCILLARY PROBATE in most counties. Call collect, Pavese Law Firm, 239/542-3148, attn: Michael Gennaro, 4635 S. Del Prado Blvd., Cape Coral, FL 33904. 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. 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

OSHA SAFETY EXPERT WITNESS in construction and industry accidents. U.S. Dept. of Labor Authorized Trainer. Former OSHA inspector. OSHA Safety Expert, Inc., contact Wendell Rust toll-free at 877/544-4323, email: expert@oshasafetyexpert.com

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

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

Miscellaneous

ELDER MEDIATION: A Way to Resolve Family Conflict, Advanced Mediation Training; Friday, Dec. 12, 2014; 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.

OFFICE SPACE. Law firm at 235 N. Delaware St., Indianapolis, has space available to accommodate 3 attorneys in offices measuring 13’ x 23’ each. Space also available for support personnel. The offices may be furnished or unfurnished and include wireless Internet, phones and access to conference room. The cost of the receptionist would be divided among all of the attorneys. Questions may be directed to: David McClure, 317/221-0800 or davemcclure@att.net. OFFICE SPACE: Attorneys located in the Gold Building at 151 N. Delaware St. in downtown Indianapolis looking to share extra office space. Secretarial services available. Possible referrals. Low rent. Reply to sferrer@inbar.org and reference “Gold Building” office space.

APPELLATE COUNSEL Appellate Attorney seeks referrals/projects for hire Experienced in appellate advocacy for civil & criminal appeals, including PCR representation Will travel to meet with clients as needed

R. Patrick Magrath Alcorn, Goering & Sage, LLP 1-800-330-8765 magrath@agslawyers.com APPRAISALS

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RES GESTÆ • OCTOBER 2014

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By ISBA Past President Rabb Emison

Gleanings

FAIR COMMENT CLASSIC

Editor’s Note: The following column first appeared in December of 1997. A treasured and longtime contributor to Res Gestae, Rabb Emison of Vincennes, Ind., passed away on Sept. 1, 2010.

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ow and then we clean out a desk drawer or a wallet. It requires discipline, disposing of those little items we stowed and forgot: an untitled memo of a case citation, a telephone number without a name, a worn school photograph of a child now – wonder of wonders – grown and gone. What to do? A collection of notes from straightening up a desk drawer brings this humble offering.

Found in a transcript Every trial lawyer has the experience of preparing the witness for testimony. A proper beginning of any deposition begins with simple instructions, often buttered up with expressions of concern. Q. Now, Mr. Brown, I will ask you questions that you are asked to consider before answering. The reporter is here to make a record of the questions and your answers. It is essential that each of your answers be oral. Do you understand? A. Yes. Q. Good. Please state your name. A. Oral. Q. What is your address? A. Oral. Q. Let’s go off the record for a minute.

Ah, counsel, how much time do you want to present your case? A report in The Washington Post reached out to the Missouri hinterland and the Carthage Press to bring in this story of a zealous pleader. The complaint alleges: All of the bones, organs, muscles, tendons, tissues, nerves, veins, arteries, ligaments ... discs, cartilages and the joints of her body were fractured, broken, ruptured, punctured, compressed, dislocated, separated, bruised, contused, narrowed, abraded, lacerated, burned, cut, torn, wrenched, swollen, strained, sprained, inflamed and infected.

One can imagine the court at pretrial, going over the checklist. And how many witnesses do you plan to call?

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Hoosier language My envy is directed toward skillful wordsmiths. We mortals try to meet the requirements of correct punctuation and syntax, while above us whirl the stars, using expressive, invented words. The English language can be made up by the speaker, and the Americanlanguage user does it easily. I submit that in Indiana, Hoosiers speak in a musical and useful style. A forgotten word in my county is “juberous,” which probably comes from “dubious” but implies a more likely rejection of the object. A client would say, “I am juberous of that proposition.” Don’t look it up. It hasn’t been written down. Until now.

Shall we call the police? Years ago a series of murders in the city of Evansville resulted in a prosecution that led to the U.S. Supreme Court. The killer, one winter night, disposed of the victims by placing bodies in the trunk of his car. The details are hazy in this account, but he was reported to have driven around Evansville with his grisly secret. That same night an older man, driving in traffic, failed to stop at a light and struck the car stopped in front of him. To his surprise, the driver in the car in front, after examining the slight damage to both cars, treated him very kindly. “Why call the police?” he asked. “Neither of us is hurt, and it is slight damage to our cars.” When the older man paid him $20 for his damages, they parted, and no questions were asked. Evansville is a city chock-full of civilized people, and the older man was struck with the hasty courtesy he received from a stranger. He was until the following day when a picture was published of the accused killer – the courteous stranger who suggested that the police need not be called. This little tale is true. It prompts a response to “Why call the police?” The response is, “Why not?” Email your “Fair Comment” for publication consideration to Susan J. Ferrer, editor, Res Gestae, at the Indiana State Bar Association, sferrer@inbar.org.


Profile for Indiana State Bar Association

Res Gestae - October 2014  

October 2014 edition of Res Gestae, the journal of the Indiana State Bar Association

Res Gestae - October 2014  

October 2014 edition of Res Gestae, the journal of the Indiana State Bar Association

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