NEW PRESIDENT, OFFICERS, BOARD MEMBERS TAKE OFFICE ACTION-PACKED HOUSE MEETING PURDUE V. WARTELL : ATTORNEY-CLIENT PRIVILEGE & WORK PRODUCT DOCTRINE HAMMOND LEGAL AID CLINIC : 10 YEARS OF ACCESS TO JUSTICE
Vol. 58, No. 4
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The Journal of the Indiana State Bar Association
RES GESTÆ November 2014
11 HOUSE ACTION
ADVERTISING Chauncey L. Lipscomb email@example.com WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey firstname.lastname@example.org
Jeff R. Hawkins, Sullivan, 2014-2015
RECENT DECISIONS 7/14
CRIMINAL JUSTICE NOTES 7/14 - 8/14
50 ACCESS TO JUSTICE
GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino email@example.com
34 PURDUE V. WARTELL
EDITOR Susan J. Ferrer firstname.lastname@example.org
Vol. 58, No. 4
Donald R. Lundberg, Indianapolis
Maggie L. Smith and Abigail T. Rom, Indianapolis
Prof. Joel M. Schumm, Indianapolis
Kris Costa Sakelaris, Hammond
F E AT U R E S
HOUSE OF DELEGATES MEETING ACTION-PACKED By Bill Brooks, Indianapolis
NEW PRESIDENT, OFFICERS, BOARD MEMBERS TAKE OFFICE
‘TALK TO A LAWYER TODAY’ VOLUNTEERS NEEDED MLK DAY 9 LETTER
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.
RES GESTÆ • NOVEMBER 2014
1 2 3 N .W. 4T H S T , R O O M 2 2 E VA N SV I L L E , I N 47 7 0 8
8520 CENTER RUN RD INDIANAPOLIS, IN 46250
3 1 7. 5 6 9 . 9 6 4 4
P. O . B O X 3 6 5 NEW HARMONY, IN 47631
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Adapt & overcome
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 • email@example.com Administrative Assistant Barbara M. Whaley • firstname.lastname@example.org Associate Executive Director Susan T. Jacobs • email@example.com Administrative Assistant Julie A. Gott • firstname.lastname@example.org Director of Communications Susan J. Ferrer • email@example.com Director of Public Relations & Social Media Carissa D. Long • firstname.lastname@example.org Graphic Designer & Photographer Vincent Morretino • email@example.com Legislative Counsel Paje E. Felts • firstname.lastname@example.org Director of Special Projects Section & Committee Liaison Maryann O. Williams • email@example.com Administrative Assistant Barbara L. Mann • firstname.lastname@example.org Director of CLE Christina L. Fisher • email@example.com Assistant to Director of CLE Kassandra Adams • firstname.lastname@example.org Local & Specialty Bar Liaison Catheryne E. Pully • email@example.com Administrative Assistant Kimberly D. Latimore • firstname.lastname@example.org Section & Committee Liaison Melanie Zoeller • email@example.com Director of Meetings & Events Ashley W. Higgins • firstname.lastname@example.org Membership Records & Technology Coordinator Kevin M. Mohl • email@example.com Bookkeeper & Convention Registrar Sherry Allan • firstname.lastname@example.org Receptionist Chauncey L. Lipscomb • email@example.com
Author’s Note: This “President’s Perspective” includes excerpts of my comments at the 2014 ISBA Assembly Luncheon. Several people reached out to me after the speech with appreciation for my comments and stories of their own secret struggles or those of their family members. Many of those people requested written copies of my comments.
any of us have been following the growing volume of reports about evolutionary global market forces that have transformed and continue to transform the practice of law and administration of justice everywhere. Technological advances like IBM’s Watson supercomputer promise (or threaten, depending on your perspective) to alter professional service delivery for all professions, including medicine, engineering, public education and law, in ways almost as radical as the invention of the printing press, electrical distribution systems and the internal combustion engine. We are already feeling the effects of technology as nonlawyer competitors offering quasi-legal services through online distribution systems like Rocket Lawyer and Legal Zoom are claiming territory in the legal service marketplace that we may never recover. Pro se litigants are overwhelming American courts, but we have little or no data about how many of them are people who cannot afford to hire lawyers versus diehard doit-yourselfers that spurn the employment of professionals. In ironic contrast to the national perception of the lack of access to justice, we also have growing numbers of new lawyers hanging out their shingles as novice solo practitioners because they cannot find traditional law firm employment opportunities. We must be aware of the changing times and face these challenges head-on with honest courage and innovation. For that reason, the Indiana State Bar will implement a new strategic plan over the next three years to prepare the Association for these great challenges. The plan includes detailed strategies to improve communication among bar members. It encourages individual engagement of everyone within Indiana’s legal service profession to overcome barriers that traditionally exclude some from meaningful participation. It also prioritizes resource development to help members adapt and overcome the existential threats of the legal service
marketplace that seem to bear down on us increasingly every day. We will continue to advocate for the benefit of all of our members. We will work with and engage all of our active members in sections and committees to integrate our longrange plan into every aspect of this organization. I can tell you that from my vantage point the ISBA is filled with a ridiculously talented pool of hardworking and innovative individuals, so I am confident that we have what it takes to tackle these challenges. Speaking of challenges, many of you have offered praise and encouragement to me over the years as we have worked together in various endeavors. I suppose public recognition for accomplishment is something that most people appreciate, particularly for achievements that require work hard and determination. In my case, however, I acquired special insight in recent years about some of the challenges and barriers to achievement with which many people battle silently and unaided. Just over three years ago, only 15 months before ISBA Past President Jeff Lind called to tell me that I was the new vice-president nominee, my wife and I watched a PBS program called “ADD & Loving It?!” The program featured a pair of professional comedians that discovered at middle age that their uphill battles for achievement and success were compounded by their inability to focus and block out distractions like more able-minded people. At first, I laughed at their self-deprecating humor, but I quickly realized that I too had lived for decades with a mind that was significantly impaired by Attention Deficit Disorder, commonly down as “ADD.” I had always struggled to read and retain information or to block out a distracting sight or sound during a conversation, but it never occurred to me continued on p. 7
PRESIDENT’S PERSPECTIVE JEFF R. HAWKINS firstname.lastname@example.org 2014-2015 RES GESTÆ • NOVEMBER 2014
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PRESIDENT’S PERSPECTIVE continued from page 5 that those struggles were symptoms of a significant impairment. A few days after watching the program, a psychologist and my medical doctor determined that I had substantial attention deficit impairment, and my doctor prescribed medication to help me overcome the problem. I can hardly describe, and most of you cannot imagine, the lifechanging experience of a diagnosis and consequent medical treatment of an intractable mental health impairment. Our law firm, like many others, tracks individual staff performance. Within one month of treatment, my statistically measurable work productivity almost tripled, and a lifetime struggle to live and work with a perpetually clouded mind ended. I shared my story with an old friend and high school classmate during our 30-year class reunion just a few days before the recent ISBA Annual Meeting. On reflection, he said it suddenly made sense why he could cruise through classes without studying and make the same grades that I had to study nights and weekends to match. As I remembered my childhood experiences, I could trace the problem to my earliest experiences with school discipline when an elementary school teacher paddled me multiple times for reading ahead and being unable to find my place when it was my turn to read. I realized why teachers wrote comments on my report cards like, “Jeff is a very bright boy, but he daydreams too much,” and one of my high school classmates described me as a “space cadet” in her well-wishing notes in my yearbook. People have shared similar stories with me about their distraction and academic performance problems. Unfortunately, some of them have suffered under
oppressive labels like “weird,” “slow,” “stupid” or “lazy,” which filled those poor people with miserable feelings of inadequacy, insignificance and self-loathing. I have seen great brilliance and creativity in many of those people, but they lacked the powerful compassion and support that my parents, wife and other family members and friends gave me to achieve excellence throughout my life. In fact, many of you have no idea how thankful I am for your encouragement – it has helped make my achievements possible. Diagnosis and treatment has helped me overcome my disability, but other ISBA members remain shackled by physical, mental or social burdens without relief. We have more than 12,000 members in the Indiana State Bar Association, and statistics indicate that some of those members struggle with undiagnosed and untreated anxiety, ADD, bipolar affective disorder, depression, autism and other “invisible” barriers to the kinds of personal and professional fulfillment that more able-minded and able-bodied members take for granted. Many impaired legal professionals suffer through unstable careers and volatile personal relationships. As the staff of the Judges & Lawyers Assistance Program and the Indiana Disciplinary Commission could tell you, too many seek elusive relief through self-medication with drugs and alcohol. Fear of stigmatization and marginalization often discourages these people from seeking and receiving help. Think about it for a moment: Can you imagine how difficult it is for one of our members to admit that he or she suffers from a mental impairment? I can tell you that the downside of such a revelation crossed my mind, but my own liberating experience
inspired me to plow the way for others to discover life after impairment. Let us commit ourselves to extend grace and compassion to friend and foe, and to help impaired lawyers, judges and other legal service professionals achieve more enlightened, fulfilled and productive lives. May we strive together for all of our members to live life with full mind, body and spirit so that our progeny will credit to our generation the first steps toward an enduring mental, spiritual and sociological prosperity within our profession and the people it serves. I thank God for the opportunity to know and count many of you as dear friends. That knowledge informs me that ISBA members possess exceptional talents, character and passion that can help move the needle for many disadvantaged people from degradation to triumph. Lawyers, judges, paralegals, librarians, administrators and other coworkers in our industry with extraordinary potential for positive societal influence can make a difference in places throughout Indiana like Gary, Elkhart, Salem, Covington, Madison, Bluffton and Bloomfield. If a daydreaming, small-town lawyer like me can influence this organization enough to elect him president, anyone can be an influential change agent within the ISBA. Therefore, I encourage each of you to pursue excellence and make a difference. Be the change agents that make it happen, and the rule of law will endure through your contribution. There you have it. I stand here as your humble servant, overwhelmed by the honor that you have bestowed upon me and the trust that you have placed in me to lead the State Bar as your president. Thank you.
RES GESTÆ • NOVEMBER 2014
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he Indiana Supreme Court is committed to the most effective use of technology to ensure that courts operate with efficiency and fairness. To increase transparency, implement new technology, maintain court records and seamlessly share information, the Court handed down three unanimous orders on Nov. 20.
An order amending Administrative Rule 10 affirms court records as the property of the courts and subject to the authority of the Supreme Court. The order can be found at www.in.gov/judiciary/files/orderrules-2014-1120-admin.pdf. Also, the Court is amending Administrative Rule 4 to retire the Judicial Technology & Automation Committee. All court technology projects will move forward under the direct supervision of the Supreme Court. Justice Steven H. David and Court of Appeals Judge Paul D. Mathias will lead the effort. The order can be found at www.in.gov/judiciary/files/orderother-2014-94s00-1411-ms-711.pdf.
Accommodation via the CLE commission Dear Editor, My name is Andrew Straw, and I am an Indiana attorney and an Indiana State Bar Association member with disabilities. Disability law is my practice area. I am writing with praise for the good work of the Indiana Continuing Legal Education Commission in accommodating my migraines. My migraines are the result of exposure to contaminated water as a child at Camp Lejeune Marine Base in North Carolina. The chemicals in the drinking water made my nervous system very sensitive, including my eyes. One of the things that can trigger my migraines is fluorescent light. Most CLE centers and education locales have fluorescent lights. This has gotten worse since Congress banned incandescent lights. As a result, going to CLEs in person can be a very painful experience, which results in little learning. The Indiana Continuing Legal Education Commission
was sympathetic to my health issue with migraines and understood that [the] lights could cause such problems. When I explained it to them and asked for relief, they acted immediately. Now, because of the Commission’s decision, I am able to take all of my CLE courses online, rather than just a few credits each cycle. This was a simple and excellent solution, and I appreciated this very much. If other Indiana attorneys are experiencing migraines and need relief, the Commission appears sympathetic and willing to help. I suggest that you contact them like I did: email@example.com; 317/2321943 (Phone); 317/233-6112 (TDD); 317/233-1442 (Fax); www.in.gov/judiciary/cle.
Orders show priority on public safety and technology
Sincerely, Andrew U. D. Straw Schaumburg, Ill. firstname.lastname@example.org
The third order involves members of the Court serving in leadership positions to various court agencies, boards and projects. Chief Justice Loretta H. Rush said, “Our administrative initiatives are aimed at helping courts deliver justice in the most fair, open and productive manner possible.” The order can be found at www.in.gov/judiciary/files/orderother-2014-94s00-1411-ms-712.pdf. Each year, about 1.6 million cases are filed in the state’s 400 courts. Courts handle jury lists, protection orders, arrest warrants, traffic tickets and many other pieces of vital information that are critical to public safety and access. The Indiana Supreme Court will continue to use technology in providing justice every day.
Briidget O Bridget O’Ryan ’ Ryan 317.255.1000 317 7.255.1000 email@example.com bor yaan@or yanlawfirm.com 1901 B BROAD ROAD RIP RIPPLE PLE AVENUE AVENUE E INDIANAPOLIS, IND IANAPOLIS, IN 46220
RES GESTÆ • NOVEMBER 2014
CLE & Events
Sections & Committees
MY ISBA Username Password Remember Me
SIGN IN Forgot your password? Join Now!
CONNECT WITH US
9/20/2014 ISBA Service Committee sponsors second “Annual Day of Service”
Indiana State Bar
@Indiana State Bar
Annual Report shows nearly 1.000
9/19/2014 Indiana State Bar Association to host traveling exhibit on Magna Carta this fall 9/18/2014 Indiana State Bar Association announces Morris Dees as keynote speaker
9/30/2014 2014 United States Tax Court Luncheon 10/8/2014 >> 10/10/2014 2014 ISBA Annual Meeting 10/9/2014 Elder Law Section Holiday Party 10/13/2014 "Talk to a Lawyer Today" Prep CLE
cases considered by Indiana Supreme Court in.gov/activecalendar...
The State Bar is excited to announce the launch of its new website & membership database! The new website has been designed to provide the ultimate member-friendly experience with improved navigation and functionality, allowing members to access event registration, dues statements, section and committee forums (in place of e-discussion lists), personalized member proﬁles, Casemaker and more.
& Committees Comm mm
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Indiana State Bar @Indiana State Bar
10/9/2014 Elder Law Section Holiday Party
Annual Report shows nearly 1.000 cases considered by Indiana Supreme Court in.gov/activecalendar...
9/20/2014 ISBA Service Committee sponsors second “Annual Day of Service”
Indiana State Bar
@Indiana State Bar
Annual Report shows nearly 1.000
9/19/2014 Indiana State Bar Association to host traveling exhibit on Magna Carta this fall 9/18/2014 Indiana State Bar Association announces Morris Dees as keynote speaker
9/30/2014 2014 United States Tax Court Luncheon
Indiana State Bar
@Indiana State Bar
Annual Report shows nearly 1.000 cases considered by Indiana Supreme
10/8/2014 >> 10/10/2014 2014 ISBA Annual Meeting
10/9/2014 Elder Law Section Holiday Party 10/13/2014 "Talk to a Lawyer Today" Prep CLE
cases considered by Indiana Supreme Court in.gov/activecalendar...
The website address will continue to be www.inbar.org
announces Morris Dees as keynote speaker
10/13/2014 "Talk to a Lawyer Today" Prep CLE
RG 11.14_RG 09.05 11/25/14 2:27 PM Page 11
By Bill Brooks
House of Delegates meeting action-packed
Time for commencement of action … Sec. 2. An action under this chapter must be commenced by the earliest of the following: (A) Two years from the date of the alleged act, omission, or neglect is discovered or should have been discovered by the exercise of reasonable diligence. (B) Three years after the completion or termination of the matter out of which the claim arose, regardless of the time it is discovered; or (C) Three years after the conclusion or termination of the attorney’s participation in the matter with respect to which the service was sought or performed.
Some delegates, expressing concern that the time limits were too short and therefore unfair to clients, proposed amendments, which were rejected. Ultimately, the resolution was approved 91-36, with two abstentions. In other action, the House approved a recommendation by the Diversity Committee to provide that the James C. Kimbrough Bar Association be represented in the House of Delegates, in accordance with the 2013 change in the ISBA mission statement to promote diversity. Also approved was the addition of a new “sustaining membership” category for any member willing to show an extra commitment to the ISBA by contributing a minimum of $100 to the standard annual dues of that attorney’s underlying membership classification. The House of Delegates also approved a resolution by the Military & Veterans’ Affairs Committee that recommended provisional licensing of attorneys who are married to members of the U.S. Armed Forces on active duty and stationed in Indiana. The resolution was forwarded to the Indiana Supreme Court Committee on Rules of Practice & Procedure.
Reports to the House Chief Justice of Indiana Loretta H. Rush reported on progress in the area of technology, including electronic filing and the statewide computerized case management system, and she urged attorneys to continue to provide vital input regarding such efforts. She also spoke about the state’s strong tradition of pro bono and the rule taking effect next year requiring the mandatory reporting of pro bono legal services. Rush added words of support for the expansion of problem-solving courts. Indiana Court of Appeals Chief Judge Nancy H. Vaidik reported on “talent, technology and transition” of the court, which issued 2,100 majority opinions in the last year – representing 2-1/2 decisions per judge per week. Vaidik noted that the average turnaround time for each case is one month. Matthew J. Light, chief deputy of the Indiana Attorney General, reported that the office handles more than 11,000 civil cases a year, with about 3,000 active at any point in time. There were 1,200 criminal appeals in state court, plus 300 in federal court, along with 14,000 consumer complaints and 13,000 telephone privacy complaints. Donald R. Lundberg, president of the Indiana Bar Foundation, said the IBF has had some success finding other revenue sources as the IOLTA program continued to be challenged by near-zero interest rates over the past six years. He cited the continuing need for lawyers to do pro bono work, which can now be done online through a virtual ask-a-lawyer program, accessible 24 hours a day, seven days a week, www.indianalegalanswers.org.
RES GESTÆ • NOVEMBER 2014
ight years after the issue was tabled by the Indiana State Bar Association’s House of Delegates, a proposal supporting the voluntary registration of paralegals was overwhelmingly endorsed by that same body during the ISBA’s recent fall meeting in Indianapolis. “This is a modest step that builds on the State Bar’s affiliate paralegal program,” said Indiana Court of Appeals Judge Edward W. Najam Jr., chair of the Affiliate Membership Committee, which brought the proposal to the House. The difference between the new proposal and the 2006 effort, Najam said, is that the Indiana Supreme Court would delegate administration of the paralegal program to the ISBA, with registration fees covering the cost of administration. He said the new program includes registration designations modeled on the highly successful North Carolina program. He stressed that registration is entirely voluntary, and that it would require six hours of continuing legal education a year, with at least one hour of ethics. “Voluntary registration is a small step in the right direction,” Najam said. The House of Delegates action sends the proposed Rule 9 addition to the Rules of Professional Conduct to the Indiana Supreme Court Committee on Rules of Practice & Procedure. The Oct. 10 delegates meeting featured little debate with one exception – when the Probate, Trust & Real Property Section brought forth a resolution to set a statute of limitations on claims of negligence or breach of contract. Modeled after rules governing certified public accountants, the proposed time-limit additions to Title 33, Article 43 of the Indiana Code were as follows:
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New president, officers, board members take office
n October, Jeff R. Hawkins, Sullivan, assumed the office of president of the Indiana State Bar Association for 2014-15 at the Association’s fall meeting in Indianapolis. Jeff succeeds Jim Dimos, Indianapolis, who now will serve as immediate past president on the Association’s 25-member Board of Governors. Carol M. Adinamis, Westfield, advanced to the office of president-elect, and Mitchell R. Heppenheimer, South Bend, was elected vice president. President Jeff R. Hawkins practices law with his wife, Jennifer, at Hawkins Law PC in Sullivan, Ind., which concentrates in the
Jeff R. Hawkins areas of estate and business planning, trust and estate administration, and elder law. Jeff received his B.S. from Indiana University’s Kelley School of Business in 1988 and his J.D. from the University of Louisville’s Louis D. Brandeis School of Law in 1992. He was admitted to practice in Indiana in 1992 and in Illinois in 2012. He became a registered civil mediator in Indiana in 2013. Jeff is a member of the Terre Haute, Sullivan County, Indiana State (member, board of governors; past chair, House of Delegates; past chair, Probate, Trust & Real 12
RES GESTÆ • NOVEMBER 2014
Property Section), Illinois State and American bar associations. He is also a Fellow of the American College of Trust & Estate Counsel and a member of the National Academy of Elder Law Attorneys. Jeff is an active member of the Westside Church of Christ (elder, 2005-present) and Sullivan Rotary Club (president, 2012-13). He volunteers for the Wabash Valley United Way’s “Real Men Read” program by reading to kindergarten students. He was born in Sullivan in 1966. Professional enjoyment: Lawyers are the guardians of liberty and justice. Your inspiration: historical accounts of lawyers shaping America and fictional expressions of language shaping society and politics Why bar association involvement: The ISBA promotes the best interests of my Hoosier friends, family and peers. If not a lawyer: teacher, counselor or minister Fav hobbies: traveling with my family, reading, watching historical documentaries, trying to play banjo and getting my next shot back on the fairway. Fav book or author and current reading: Navigating the Winds of Change by Lynn Anderson. Fav vacation spot: holding my sweetie’s hand on any sunny beach with a cool breeze. Fav food or restaurant: the wellkept secret that offers local delicacies. Otherwise, I enjoy grilling and eating on the back porch in view of the deer and other wildlife that surrounds our home. Top of my bucket list: charting my genealogy to find my ancestors’ emigration to the United States.
President-Elect Carol M. Adinamis, Westfield, is a partner at the firm Adinamis & Saunders PC, where she focuses on business formation and planning, estate planning, mediation and taxation. Previously, Carol served as a CPA at Arthur Andersen. She received her B.S. in accounting from Indiana University-Bloomington in 1987 and her J.D. from the I.U. Maurer School of Law in 1992. Carol is a
Carol M. Adinamis member of the Indianapolis, Hamilton County, Indiana State (member, board of governors; chair, House of Delegates; chair, Legal Ethics Committee) and American bar associations, Indiana CPA Society and the American Institute of CPAs. She is also an active member of the Brebeuf Jesuit Mothers Association and Oak Trace Elementary PTO. Carol was born in Philadelphia in 1965. Professional enjoyment: I love helping people solve problems and achieve their goals. I also enjoy the people that I meet on a daily basis – both clients and other professionals. I love learning about other people, their work and interests. Your inspiration: My father and aunt were both lawyers. After a few “busy seasons” at a public
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accounting firm, I knew I wanted to do something more creative and something that allowed me to have more control over my life. The law seemed like a good fit. Why bar association involvement: I originally joined the ISBA Legal Ethics Committee because of a specific event that had an impact on me. I enjoyed it so much and met so many incredible lawyers through the bar association that I haven’t wanted to stop my involvement. The Indiana State Bar Association has provided me with the opportunity to speak to various people I never would have come across in my transactional practice, and that has been very rewarding. If not a lawyer: I would like to be a writer or a teacher. Fav hobbies: swimming, biking, reading and generally trying to keep up with my husband and three children. Fav book or author: J.K. Rowling. Fav vacation spot: anywhere on the water at Lake Michigan. Fav food or restaurant: Jan’s Village Pizza in downtown Westfield, Ind. The pizza is fantastic. Top of my bucket list: bike the entire coast of Lake Michigan.
in his law office – the best move I ever made. Why bar association involvement: to make the bar associations in which I’m involved better for its members and to improve the legal profession If not a lawyer: law school professor
Mitchell R. Heppenheimer bar associations. He is also a Fellow of the Indiana Bar Foundation. He received his B.S. in accounting from Indiana University-Bloomington in 1972 and his J.D. from the Cumberland School of Law at Samford University, Birmingham, Ala., in 1976. Mitchell was born in South Bend in 1950. Professional enjoyment: when a client sincerely expresses gratitude about the efforts of their attorney Your inspiration: My father, an attorney for more than 35 years, made me go to law school and work
Fav hobbies: relaxing at any beach. Fav book or author and current reading: Unfortunately, with all the reading and writing associated with my practice, I don’t have much time or inclination to “socially” read. Fav vacation spot: Punta Cana, Dominican Republic. Fav food or restaurant: any restaurant in New Orleans or Las Vegas. Top of my bucket list: retire and live at a location that is on a beach and has a temperature of 75-80 degrees every day of the year. Michael S. Dalrymple, Indianapolis, Secretary, is a solo practitioner, representing individuals and small businesses in employment and labor law, discrimination (continued on page 14)
Vice President Mitchell R. Heppenheimer, South Bend, is the managing partner at the firm Heppenheimer & Korpal and has been the deputy county attorney for St. Joseph County since 1981. Mitch is a member of the St. Joseph County (current treasurer; past president; member, board of directors), Indiana State (past chair, House of Delegates; past treasurer; past member, board of governors; past member, Membership & Membership Benefits Committee; past chair, Unauthorized Practice of Law Committee; past chair, BARPAC Committee; and inductee, GP Hall of Fame) and American
RES GESTÆ • NOVEMBER 2014
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BOARD OF GOVERNORS continued from page 13 Michael was born in Indianapolis in 1973.
Michael S. Dalrymple claims, corporate matters and estate planning. He also is a civil mediator, providing mediation services for a variety of civil matters. Prior to opening his own law firm, Michael was an associate at Ice Miller. Immediately following law school, he was appointed to a twoyear judicial clerkship, spending his first year with Hon. Sanford M. Brook, former chief judge of the Indiana Court of Appeals, and his second year with Hon. Randall T. Shepard, former Indiana chief justice. Michael earned his B.A. from Earlham College and his J.D. from the I.U. Maurer School of Law. He also attended the London Law Consortium Program and was elected student graduation speaker. Michael is a member of the Indiana State Bar Association and U.S. District Court for the Southern District of Indiana Local Rules Advisory Committee and a former member of the Indianapolis chapter of the American Inn of Court. He is active in numerous performing arts and community development organizations, and currently serves on the board of the Indiana School for the Blind and Visually Impaired. He also regularly presents and provides training on disability-related topics.
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Professional enjoyment: Every new case is a fresh challenge, which satisfies my intellectual curiosity. The practice of law is also an emotional investment, requiring the happy lawyer to find work that is personally meaningful. The profession has so many opportunities that someone can explore for the first time or to which one devotes a life’s work. It is these challenges and opportunities that keep the profession fresh and exciting for me. Your inspiration: Before attending law school, I worked with a group of attorneys and felt obligated to preface any opinion I offered with, “I am not an attorney but … .” I no longer need to do that, but I am still working on the more lofty inspiration of making a difference in our world, even if one case at a time. Why bar association involvement: When people complain to me about politics, my first question is, “Did you vote?” When attorneys complain about their profession, I always ask if they are involved in their local or state bar association. The ISBA provides a wonderful structure to improve and advance the profession, and I want to be a part of that process. If not a lawyer: musician, if I had the talent Fav hobbies: listening to and playing music; discovering and eating new food (I am a proud foodie); reading almost anything; traveling to important cities of the world; and relaxing on the beach. Fav book or author and current reading: I will often focus on a region of the world or a particular culture and read as much about it as I can, both historical accounts and novels from the region. We learn so little during school about cultures other than our own and Western Europe.
I am also a news junky and read, or often listen to, international news sources. The differing perspectives on the same story are fascinating. Fav vacation spot: I generally take two types of vacation, either visiting an exciting city or doing absolutely nothing on a beach. I have yet to find a place that is so good that I must forgo the thousands of places I have not visited. I am a big fan of San Francisco; London, England; Vienna, Austria; Sydney, Australia; Majorca, Spain; and Hawaii. Fav food or restaurant: A good meal is usually the best part of my day. I will try almost anything at least once. Asian food is particularly tasty, but my best food trip ever was in Florence, Italy. I am very pleased and proud that Indianapolis’ food scene is improving by the month. Ten years ago, I could not name 10 high-quality restaurants in the city, and now I can list a number of places I have yet to visit but intend to do so as soon as possible. Mass Ave., Fountain Square and SOBRO all have wonderful offerings, along with others scattered about the city. Top of my bucket list: visit Japan and China. O. Adedoyin (Doyin) Gomih, Merrillville, Treasurer, is principal at her firm in Merrillville, Law Offices of Adedoyin Gomih. With an extensive business background, she practices in the areas of business and commercial law, business formation, personal injury, real estate transactions and employment law. She received her B.S. from the University of Ibadan, Nigeria, in 1978; M.P.A. from Dalhousie University, Halifax, Nova Scotia, Canada, in 1981; M.B.A. from Illinois Institute of Technology’s Stuart School of Business in 1997; and her J.D. from Valparaiso University School of Law in 2006. Doyin is an active member of the Lake County, Kimbrough (chair, CLE committee) and
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O. Adedoyin Gomih Indiana State bar associations. She is also a member of the National Employment Lawyers Association and the Women Lawyers Association. She currently serves on the board for South Shore Arts and is a former member of the Lake County Cancer Society. She was born in Nigeria in 1955. Professional enjoyment: the intellectual challenge and the opportunity to help people. Your inspiration: Prof. Lori B. Andrews at the IIT Chicago-Kent College of Law and my husband. I had nurtured a secret desire after watching Prof. Andrews testify before Congress, but my husband gave voice to the secret desire, and I quickly jumped at the chance before he could change his mind.
going right. It is actually therapeutic for me. I love to sing and dance even though I’m not very good at either. I also love to read. Fav book or author and current reading: My favorite book to read is the Bible, and I read it every day to start my day. I have been challenging myself to memorize as many scripture verses as I possibly can. Fav vacation spot: Paris. Fav food or restaurant: I’m a decent cook, and I love my cooking. I also love every manner of French food. Top of my bucket list: publish a book about living with autism. Ted A. Waggoner, Rochester, Counsel to the President, is managing partner at the firm Peterson Waggoner & Perkins. He received his B.S. from Indiana State University in 1975 and his J.D. from the I.U. Maurer School of Law in 1978. Ted is an active member of the Fulton County (past president), Indiana State and American bar associations and the Indiana (Life Master Fellow) and American (Life Fellow) bar foundations. He is also active with the Chamber
Ted A. Waggoner of Commerce (2004 Community Citizen of the Year), Rochester Optimist Club, I.U. Maurer School of Law Board of Visitors, International Christian Church – Disciples of Christ (former vice moderator and member of various committees at the national, state and local church). Ted was born in Franklin, Ind., in 1953. Professional enjoyment: working with folks who are trying to resolve or avoid some problems (continued on page 16)
Why bar association involvement: I consider it a privilege and an opportunity to have a voice at the state level, working with someone I admire and respect, to help further the agenda of the ISBA generally, and especially to further diversity in its leadership. If not a lawyer: Having always been business-minded, I would be a businesswoman. Fav hobbies: I write a gratitude log every morning. It helps me to find a cause for gratitude even when things don’t appear to be RES GESTÆ • NOVEMBER 2014
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BOARD OF GOVERNORS continued from page 15 with their friends and neighbors. Working with lawyers when the folk cannot handle the issues without us. Your inspiration: My father introduced me to Judge Lybrook from the Court of Appeals when I was in high school and told me that he had always wanted to be a lawyer, but could not afford college before World War II; then with the kids after the war, he could not find the time. Why bar association involvement: It is a reminder of the best of the profession. The lawyers I work with at the bar are ones whose time management skills and professionalism make them easy to work with in cases. The lawyers in cases I have a hard time with are ones I never see at local or state bar events. If not a lawyer: My Shakespeare professor suggested I drop the law school idea and teach
Shakespeare – that might have done it. Fav hobbies: walking, golf and reading. Fav book or author and current reading: Favorite author, Stephen Terrell. Currently reading John Gilstrap’s End Game and Ron Baker’s Measure What Matters to Customers. Fav vacation spot: Fort Myers, Fla., when there is a foot of snow on the ground in Indiana. Fav food or restaurant: Sangiovese Ristorante (I’m hoping it reopens soon in a new location). Top of my bucket list: a bigger bucket. Scott E. Yahne, Munster, First District, is a practitioner at his firm in Munster, Yahne Law PC. Previously, Scott practiced at the firm Efron Efron & Yahne. He received his B.A. from Indiana University-Bloomington in 1989 and his J.D. from the I.U. Maurer School of Law in 1992. Scott is an
Scott E. Yahne active member of the Lake County and Indiana State bar associations. He is also active with the St. Joseph’s Carmelite Home, Hammond Legal Aid Clinic and Hammond Development Corporation. He was born in Fort Wayne in 1966. Professional enjoyment: I have really come to enjoy and appreciate my many colleagues. Although it can initially be difficult to move beyond our necessary professional veneers, I have gotten to know incredibly interesting people with unexpected talents and pursuits developed from varied cultures and experiences. Your inspiration: For reasons not truly understood by me, a seed germinated within me early on that I reaffirmed at various stages of my life and that I continue to reaffirm through today. Of course, much of the credit for the early seed lies with my Uncle Ken Yahne, who practiced with Lincoln National Life for many years and who remains someone I admire. Why bar association involvement: As a gardener and one who appreciates taking care of what has been given, I have always subscribed to the belief that I have an obligation to make this world (continued on page 18)
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BOARD OF GOVERNORS continued from page 16 a little better than I found it, and I feel that way about our shared profession. Also, there is no better environment to interact with colleagues and develop important relationships. If not a lawyer: I have not been truly tested since I committed to becoming a lawyer long ago, but I think that I would like to teach history at the high-school level. Fav hobbies: My number one pursuit is whatever my two boys are pursuing. In the past few years, I have coached basketball and baseball for each, and will happily support any activity that compels them. Also, I very much enjoy gardening and the peace it brings. Fav book or author and current reading: When I first considered reading The Fourth Turning in 1998 by William Strauss and Neil Howe, I recall being attracted by the prophecy component of the book. After reading the book, however, I gained an entirely different understanding of history based on the authors’ generational analysis of history. No longer did historical events and figures randomly appear
in a mishmash of unrecallable dates. After reading The Fourth Turning, history became far more interesting to me because I felt as though I could better understand why people acted the way they did. Once I understood the repeating cycles of history, I was much better able to contextualize and understand current and historical events. Fav vacation spot: Anywhere I’ve vacationed quickly becomes my favorite vacation spot, so I have no reason to expect anything different in the future. That being said, much of my wife’s family resides in Turkey, which makes trips there particularly special. Fav food or restaurant: After being infused with Turkish culture and cuisine, I have to rank Manti (a small handmade dumpling filled with meat and topped with yogurt, garlic, red pepper powder, ground sumac and dried mint) near the top of my list. We’ve often spoken of opening a Manti House in the states. Top of my bucket list: I haven’t created a bucket list, but do my best to enjoy the moment and treasure any time spent with my family, particularly
since life is replete with reminders that the next moment is never guaranteed. Robyn M. Rucker, Valparaiso, Second District, is the director of career advising at Valparaiso University School of Law. Previously, she was an attorney at the Indiana Supreme Court
Robyn M. Rucker where she coordinated the Indiana Conference for Legal Education Opportunity (ICLEO). She also served as a deputy attorney general. Robyn received her B.A. from Earlham College in 1997 and her J.D. from the I.U. Robert H. McKinney School of Law in 2002. She is a member of the Kimbrough, Indiana State and American bar associations, National Association of Law Professionals and Alpha Kappa Alpha Sorority. Robyn was born in Gary, Ind., in 1975. Professional enjoyment: the diverse opportunities that I have the ability to pursue and undertake Your inspiration: my desire to be a change agent Why bar association involvement: It is important to me because it affords me opportunities to expand my professional development. This extends beyond the
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legal seminars and workshops into the realm of relationship building and mentoring. If not a lawyer: actress Fav hobbies: I love music of all types. Being so close to Chicago is great because there are so many opportunities for live music, and they are often free! Fav book or author and current reading: My favorite book is Their Eyes Were Watching God by Zora Neale Hurston. I am currently reading The New Jim Crow by Michelle Alexander. Fav vacation spot: Venice, Italy. Fav food or restaurant: I love breakfast food, especially pancakes. This summer I fell in love with the pancakes from Café Fleur-de-lis in New Orleans! They also have amazing shrimp and grits. Top of my bucket list: writing a screenplay and directing the film independently. Robert L. Jones Jr., Notre Dame, Third District, is the associate dean for experiential programs and a professor at the Notre Dame Law School. He was the director of the Notre Dame Legal Aid Clinic from 2002-12. Previous to joining the law school, he worked as staff counsel and transportation project director of Business & Professional People for the Public Interest, a Chicago-based public interest law and policy center. There, he engaged in litigation, regulatory advocacy and policy analysis on issues relating principally to the environment, fair housing and public-utilities regulation. He also served as a lecturer at Loyola University Chicago School of Law from 1985 to 1999.
Robert L. Jones Jr. and Indiana State bar associations and the Robert A. Grant Inn of Court. Robert also serves as a youth service trip leader for the St. Joseph Catholic Church. He was born in Louisville, Ky., in 1958. Professional enjoyment: In my early years, I enjoyed most the intellectual challenge of grappling with complex legal and policy issues. As time goes on, I have come to enjoy most the human side of lawyering – developing client relationships, finding solutions to their problems, and now helping law
students develop their professional identities through practice and reflection. Your inspiration: Many years of formation in Catholic schools sparked a desire to pursue public interest work. I thought lawyering would be the best fit for me among the many ways to work for social justice. Why bar association involvement: It is critical for lawyers to see themselves as part of a broader community with a common purpose – furthering the rule of law – rather than as individuals in competition with one another. Bar associations foster collegial relationships and encourage collaboration to improve our legal system. If not a lawyer: architect – I love building and design. Fav hobbies: golfing and wilderness backpacking. Fav book or author and current reading: Having just driven through tribal lands in the western United States this summer, I am rereading a few novels by Tony Hillerman set on (continued on page 20)
Robert received his B.A., summa cum laude, from the University of Notre Dame in 1980 and his J.D., cum laude, from Harvard Law School in 1984. He is a member of the St. Joseph County (member, Pro Bono Committee) RES GESTÆ • NOVEMBER 2014
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BOARD OF GOVERNORS continued from page 19 the Navajo and Hopi reservations. Fav vacation spot: western mountain ranges where I can camp in high places far from the reach of cell phones and the Internet. Fav food or restaurant: peanut butter. Top of my bucket list: visit every continent. Martin E. Seifert, Fort Wayne, Fourth District, is an owner at the firm Haller & Colvin, where he represents trustees, creditors, debtors and creditors’ committees in all aspects of bankruptcy matters. In addition to creditors’ rights and bankruptcy matters, Martin devotes a significant part of his practice to representing small, medium and large businesses in general corporate matters and commercial litigation. He also serves as a mediator. Previously, he served as a judicial law clerk for Hon. Robert E. Grant
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of the U.S. Bankruptcy Court. He received his B.A. from the University of Notre Dame in 1989 and his J.D. from the University of Notre Dame Law School in 1992. Martin is a member of the Allen County (past president; member, ADR and Bankruptcy & Creditors’ Rights sections) and Indiana State bar associations, American Bankruptcy Institute, National Association of Bankruptcy Trustees and the Northern District of Indiana Bankruptcy Rules Committee. He is active with the Allen County Public Library Board of Trustees (current president), Indiana Legal Services (past board member), Allen County Bar Foundation (current president) and the Notre Dame Club of Fort Wayne (past president).
Martin E. Seifert He was born in Ireland, Ind., in 1967. Professional enjoyment: succeeding in helping a client through a difficult situation; not only providing a legal solution to a current problem, but also providing a plan to help a client in the future.
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Your inspiration: I became excited by the practice of law while I was at Notre Dame Law School. The professors, judges and practitioners were full of zeal and passion in pursuing the law. Their example was inspiring to me, and I have enjoyed the practice ever since. Why bar association involvement: We are a profession, and as professionals we need to focus on our responsibilities to our entire community. We have worked hard for and received astonishing privileges. By participating in the ISBA and other bar associations, we each can not only strengthen our profession, but also give back to our communities. If not a lawyer: librarian. I have always appreciated the services a library provides. Having been on the board of our great local library for several years now, I have seen their strong work ethic and true desire to serve our community. Fav hobbies: reading, running with my wife, skiing with the whole family and chauffeuring our children from one activity to the next! Fav book or author and current reading: Aubrey/Maturin series by Patrick O’Brian. It is Jane Austen on the high seas. Start with the first book, Master and Commander, and enjoy! Fav vacation spot: Ebbs, Austria – my wife’s hometown and one of the most beautiful places on earth. Fav food or restaurant: one of Austria’s well-known dishes – Zwiebelrostbraten and Spätzle. Often translated as roast beef in onion sauce and German dumplings, it is comfort food at its best. I can get you the recipe, but it will be in German and uses the metric system. Top of my bucket list: taking a summer to learn to sail and cruise the Mediterranean.
Candace D. Armstrong, Brook, Fifth District, is a practitioner at her firm, Armstrong Law Offices. Previously, Candace practiced at the Chicago firm Sidley Austin and worked in the office of former U.S. Sen. George Voinovich. She received her B.A. from Ohio
meaning within our profession and makes a difference. It is the bigger picture. All the resources and benefits are great and a plus to my practice, but the importance comes from the intangible benefits that are more difficult to describe. If not a lawyer: I would still be an entrepreneur, one with more time for many other ventures. Fav book or author and current reading: Maxed Out: American Moms on the Brink by Katrina Alcorn and Nora Roberts to relax. Fav vacation spot: Disney World! Fav food or restaurant: any form of potato. Top of my bucket list: sleep, visit all 50 capitals and give away a million dollars.
Candace D. Armstrong State University in 2000 and her J.D., magna cum laude, from Valparaiso University School of Law in 2004.
Patrick J. Olmstead Jr., Greenwood, Sixth District, is a practitioner at his firm, Patrick Olmstead Law LLC. Previously, Patrick practiced at the Indianapolis firm Hoover Hull LLP. He
Candace is a member of the Newton County, Indiana State (member, Young Lawyers Section, 2010-13; graduate, Leadership Development Academy, 2012) and American bar associations. She is also active with the Kentland Rotary Club and Families of JCYC, Inc. She was born in Galion, Ohio, in 1977. Professional enjoyment: figuring out solutions Your inspiration: In first grade, it was probably to be the “boss” as a judge and rule my younger brother. That grew into a strong civics interest in what government should be and can be. Why bar association involvement: Frankly, I truly enjoy my membership and colleagues. It is being part of something that has
Patrick J. Olmstead Jr. received his undergraduate degree from the University of Notre Dame and his J.D. from the I.U. Robert H. McKinney School of Law. He is a member of the Indianapolis, Indiana State and American bar associations. He is (continued on page 22) RES GESTÆ • NOVEMBER 2014
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BOARD OF GOVERNORS continued from page 21 also active with the St. Thomas More Society (past president), Notre Dame Club of Indianapolis (director, 2010-present) and the Notre Dame Class of 1990 (president). Patrick was born in Indianapolis in 1968. Professional enjoyment: the people with whom I have worked Your inspiration: When my son, David, died, I was heartbroken. I wanted to do something that would make David proud of me. A friend and fellow ND grad, Bill Norberg, told me about going to law school at night. I thought that going to law school would make David proud. When I did well at law school, I decided to become a lawyer. Why bar association involvement: Because I believe that this is a profession, not just a job or a career. Other professions envy us. See Tranio, “And do as adversaries do in law, [s]trive mightily, but eat and drink as friends.” The Taming of the Shrew, 1.2.280. This case may be over in two years; we will be colleagues for the next 20. If not a lawyer: If I was good at it – golfer. Fav hobbies: board gaming, motorcycling, golfing and riding rollercoasters. Fav book or author and current reading: For lighthearted fun, Christopher Moore. I repeatedly read R.A. Salvatore, J.K. Rowling’s Harry Potter series and the Game of Thrones series by George R.R. Martin. Fav vacation spot: Disney World. Fav food or restaurant: My wife’s Lebanese cooking. Julia is Swiss (not Lebanese), but her cooking rivals my Aunt Fran’s (rest in peace). Top of my bucket list: Nothing. I’ve done everything I wanted to do. I am ready.
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Ann Z. Knotek, Brownsburg, Seventh District, is a practitioner at her firm, Ann Z. Knotek LLC. Previously, Ann served as a staff attorney at the Indiana Department of Natural Resources (2003-08)
lawyer, and if I was a girl, I should be a librarian. Why bar association involvement: Building personal relationships with colleagues through the ISBA has been an invaluable source of collegiality and support. If not a lawyer: communications Fav hobbies: reading, karate, kitten fostering and walking. Fav book or author and current reading: The Brothers Karamazov by Fyodor Dostoevsky; I reread it every decade or so. Fav vacation spot: walking around any big city. Fav food or restaurant: Mia Francesca in Chicago. Top of my bucket list: I would like to take my sons to China.
Ann Z. Knotek and as a family law practitioner in Chicago (1993-2000). She received her B.A. from Yale University in 1988 and her J.D. from Washington University School of Law in St. Louis in 1993.
Hon. Leslie (Les) C. Shively, Evansville, Eighth District, is judge of the Vanderburgh Superior Court in Evansville. Previously, he practiced at the firms Shively & Associates and Fine & Hatfield. Judge Shively is a member of the
Ann is a member of the Hendricks County (president, 2013 and 2014), Indiana State and American bar associations, Central Indiana Association of Collaborative Professionals and the Association of Family & Conciliation Courts. She is also active with the Messiah Lutheran Church, Misty Eyes Animal Center and the Yale Alumni Schools Committee. She was born in Fort Wayne in 1965. Professional enjoyment: I most enjoy representing children as a Guardian ad Litem and working with families to promote positive outcomes in family law cases. Your inspiration: I took an aptitude test in 8th grade that indicated if I was a boy, I should be a
Hon. Leslie C. Shively Evansville (member, board of directors; secretary, 1982-83) and Indiana State (chair, Land Use & Zoning Section, 2002-04) bar associations, and the Evansville Bar Foundation. He received his B.S. from Indiana University in 1976
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and his J.D. from the I.U. Robert H. McKinney School of Law in 1980. Also in 1980, he earned his M.B.A. from Indiana University. Judge Shively is active with Youth First (board member), Ivy Tech Community College (adjunct faculty member) and the Methodist Youth Home (past board member). He was born in Evansville in 1954. Professional enjoyment: I enjoy the aspect of solving problems for people. In addition, I have been fortunate to have many longterm clients, which has afforded me the opportunity to participate in the growth and development of their respective businesses and occupations. Practicing law requires working with other lawyers. I have developed many great relationships with many attorneys throughout the state. Being a lawyer gives one the opportunity to associate with many creative and passionate individuals. Your inspiration: My father was not a lawyer; however, several of his closest friends were. As a result, I had an opportunity to be around them and observe them at work and in the courthouse at an early age. It did not take long for me to become “hooked.” Why bar association involvement: Involvement in both the state and local bar is important to me due to the opportunity for professional development and to improve the image of the bar with the general public. If not a lawyer: I can’t imagine doing anything else. I am fascinated with media. Being a talk show host might be appealing. Fav hobbies: My wife is a travel agent, and over our 25 years of marriage she has arranged the most memorable excursions for our family. Traveling (with my family) is my favorite activity. Fav book or
author and current reading: My favorite author (fiction) is David Baldacci. Lately, I have been reading several historical/political nonfiction by Doris Kearns Goodwin and David McCullough. Fav vacation spot: Maui. Fav food or restaurant: St. Elmo’s in Indianapolis (filet and shrimp cocktail). When I am in Evansville, DiLegge’s (Veal Forester). Top of my bucket list: taking a year off and following the Indy car circuit. Crystal G. Rowe, New Albany, Ninth District, is a partner at the firm Kightlinger & Gray, where she focuses on appellate representation, insurance coverage and bad faith,
also active with the local chapter of Junior Achievement. She was born in Louisville, Ky., in 1974. Professional enjoyment: working with great legal minds. I really enjoy legal analysis and working through issues in an effort to help people solve problems. Your inspiration: I planned to be a lawyer for as long as I can remember. Part of that inspiration came from watching legal-related television shows (such as Matlock or reruns of Perry Mason) as a kid growing up. Why bar association involvement: I think it is important to give back to your legal community and to keep in close contact with other attorneys and judges. Being an appellate practitioner, a lot of my work is often behind the scenes. So, I find being involved with the bar association a great way to interact with other attorneys and judges. If not a lawyer: If I were not an attorney I would probably be a math professor, teaching anything from lower-level mathematics to Calculus 4 (anything higher would be beyond my skill set).
Crystal G. Rowe insurance defense litigation and professional liability. Previously, Crystal served as a law clerk for Hon. L. Mark Bailey, Indiana Court of Appeals, 2003-06; Hon. John T. Sharpnack, Indiana Court of Appeals, 2001-03; and Hon. Daniel G. Heath and Hon. David J. Avery, both of the Allen Superior Court in Fort Wayne, 2000-01. She is a member of the Floyd County, Indiana State (member, Appellate Practice Section) and American (Council of Appellate Lawyers) bar associations, Defense Research Institute and the Defense Trial Counsel of Indiana. Crystal is
Fav hobbies: I love scrapbooking, bike riding and playing in the park with my 9-year-old. Fav book or author and current reading: I am generally not a pleasure reader, but I do like some of John Grisham’s books. The most recent book I read was The Accused. My daughter and I read this book together. Fav vacation spot: Sanibel Island, Fla. Fav food or restaurant: California Pizza Kitchen. I really like their cedar plank salmon dish. Top of my bucket list: Skydive to overcome my fear of heights and of free falling. (continued on page 24)
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BOARD OF GOVERNORS continued from page 23 Wilford A. Hahn, Huntington, Tenth District, is a partner at the firm Matheny Hahn Denman & Nix LLP, where he has practiced since 1975. Previously, Wilford
Wilford A. Hahn served as a staff attorney at the Office of the General Counsel, U.S. Department of Agriculture, in Denver. He also taught science at Morton Middle School in Hammond, Ind., prior to law school. He received his B.S. from Purdue University in 1967 and his J.D. from the Sturm College of Law at the University of Denver in 1973. He is a member of the Huntington County, Indiana State (chair, UPL Committee, 2008-11; recipient, Presidential Citation Award, 2009) and American bar associations, Indiana Trial Lawyers Association and American Association for Justice. He has also been active with the Huntington County United Way, Huntington University (member, board of trustees), Huntington University Foundation (president, 1989-92), Huntington County Community Foundation (member, board of directors, 1992-2002; president, 1998-2001) and LaFontaine Center (member, board of directors & president, 1986-present).
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Wilford was born in Bremen, Ind., in 1944. Professional enjoyment: the intellectual challenge involved in constantly acquiring expertise in various matters required in representing a client; the independence of being my own boss and setting my own work schedule; the warm, fuzzy feeling from helping needful clients with important legal issues such as obtaining disability benefits. Your inspiration: I closely identified with a comment on the Seinfeld show by Jerry about lawyers being the only ones who knew what the rules of the game were. I wanted to go to law school to learn “the rules,” not only to satisfy my own curiosity, but in order that I could utilize my expertise to earn a living. Why bar association involvement: It provides me with the ability to give back to the profession as well as the camaraderie of working with my fellow bar members. If not a lawyer: I can’t imagine doing anything else at this stage (after 40 years). Fav hobbies: tennis, bicycling, snow skiing, ice skating, hiking and reading history. Fav book or author and current reading: My current book is Gettysburg: The Last Invasion by Allen C. Guelzo. Fav vacation spot: any ski resort in the Rockies and any beach with waves high enough for boogie boarding. Fav food or restaurant: The Rusty Dog Irish Pub operated by attorney Lee Bowers in Huntington and Paula’s On Main in Fort Wayne. Top of my bucket list: qualifying for and finishing a bicycle race at the National Senior Games.
Tonya J. Bond, Indianapolis, Eleventh District, is a partner at the firm Plews Shadley Racher & Braun, where she practices in the area of complex litigation, focusing
Tonya J. Bond on insurance recovery, products liability and commercial litigation. She received her B.A. from Indiana University-Indianapolis in 2000 and her J.D. from the I.U. Robert H. McKinney School of Law in 2004. Tonya is a member of the Indianapolis, Indiana State (member, Professional Legal Education, Admission & Development Section) and American bar associations, Litigation Counsel of America (Associate Fellow) and Indianapolis American Inn of Court (Barrister). She has also been active with the Indianapolis Legal Aid Society and the Judges & Lawyers Assistance Program (volunteer and past board member, 2004-12). She was born in Greenfield, Ind., in 1970. Professional enjoyment: I enjoy the people the most – the clients, lawyers, judges, legal educators, legal staff and bar association members and staff. Nothing can be more rewarding than serving the legal needs of clients. To serve those
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needs, I get to interact with some of the most dynamic, thought-provoking, engaging, enthusiastic, creative, genuinely kind and funny people. I love the people. Your inspiration: I was not inspired to become a lawyer until after I graduated from law school. In my last semester of my undergraduate degree, one of my professors spoke with me about pursuing a graduate degree and encouraged me to consider law school. At 31, I told him that I was too old. He kindly reminded me that in three years I would be 34 with or without a law degree. Good point. Not knowing any lawyers at the time, I could not fully appreciate what it meant to be a lawyer. The significance was quickly realized upon graduation, swearing in and signing my first pleading. Now, I am inspired daily through client representation, service to the community, collaboration with others and playing some small role in the justice system. Why bar association involvement: Bar association involvement is important to me because it significantly impacts every aspect of the legal profession. We have to work continuously toward improving the legal system (and access to it) while maintaining the integrity of the rule of law. I am duty-bound to serve. If not a lawyer: detective Fav hobbies: Riding my motorcycle is always at the top of my free-time list. I love to do anything active, especially tennis, bike riding and hiking. I have a mild obsession with Colts football. I also always carry cards and dice and reading material with me in case I run into downtime. Fav book or author and current reading: PreFense – The 90% Advantage by Steve Tarani. Fav vacation spot: Vacation? Oh, right, vacation … I cannot say that I have a favorite vacation spot. Any place with a
beach, mountains or a scenic route works for me. I think it would be a lot of fun to take a vacation at a dude ranch in Colorado, though. Fav food or restaurant: George’s Neighborhood Grill at 71st & Binford. The food is fantastic, and my husband’s band, Alan Kaye and The Toons, plays there a lot … so the music is pretty great, too. Top of my bucket list: The top item on
my bucket list is having a vacation spot that becomes a family tradition. I love it when someone says something like, “My whole family always goes to Pokagon in February.” I also want to own a small business someday that sells something other than time. (continued on page 26)
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BOARD OF GOVERNORS continued from page 25 Terry W. Tolliver, Indianapolis, Eleventh District, is deputy director of the consumer protection division in the Office of the Indiana Attorney General. Previously, Terry was deputy consumer counselor at the Indiana Office of Utility Consumer Counselor. He received his B.A. from Indiana UniversityIndianapolis in 1997, his J.D. from the I.U. Robert H. McKinney School of Law in 2000 and his M.B.A from I.U. Kelley School of Business in 2001. Terry is a member of the Indianapolis, Indiana State and American bar associations, and the Indianapolis (Fellow) and Indiana (Patron Fellow) bar foundations. He is also active with the Center United Methodist Church and the Greater Indianapolis Area Emmaus Community.
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a profession where it is sometimes too easy to forget that those that seek our legal help have exhausted many of their options. It is both encouraging and fulfilling to know that as attorneys we can make a positive difference in the lives of many.
Terry W. Tolliver He was born in Anderson, Ind., in 1974. Professional enjoyment: I enjoy serving my fellow Hoosiers by helping them resolve their problems and, in some cases, obtain just restitution. Attorneys are in
Your inspiration: At an early age, my family instilled in me the importance of servant leadership and giving back to the community. Growing up in Anderson, I observed many prominent members of the community who served in the legal profession. With my family’s overwhelming support and a strong desire to help others, I was the first in my family to go to college and earn a law degree. Why bar association involvement: I joined the bar association while in law school for the
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networking opportunities. Once I began my career, however, I quickly learned how important it was to get to know other lawyers on a personal level. My practice takes me across the state, and oftentimes I appear in unfamiliar courtrooms and face lawyers I have never met before. Because of the bar association, this happens less frequently than in the past. Even if I do not know the judge or opposing counsel, I almost always know an attorney in that community that I can call upon for advice. Furthermore, membership in the bar association promotes civility. How can you ever be angry at opposing counsel when he or she is now your friend? If not a lawyer: If I were not a lawyer, I would consider the ministry, so I could continue to help people resolve their issues. I would also love to purchase and run a bed & breakfast with my wife. While I am sure I would quickly learn that managing one is different than staying in one, at least I would still have bacon and pancakes every day. Fav hobbies: I enjoy reading and spending time with my family. I also enjoy watching television and consider myself a movie buff. In the summer, I play on our church’s softball team, although if you ask the other players on the team, they will tell you I primarily play so I can use that as an excuse to get ice cream afterward. Fav book or author and current reading: There are a number of books that I would recommend. In addition to the Bible, I often tell people to read Dave Ramsey’s The Total Money Makeover if you want to get out of debt and change your life. I am also an economist at heart, so I enjoyed Freakonomics by Steven Levitt and Stephen Dubner. Also, Thomas Stanley’s The Millionaire Next Door provides great insight into traits of successful people. For fiction readers, especially attorneys, anything
by John Grisham or Brad Meltzer will provide that much-needed entertainment break. Fav vacation spot: Our family loves to go to Walt Disney World, although after “Cars Land” opened at Disneyland, our 6-year-old boys are on the fence as to what’s the top theme park in the nation. This is just a great place to unwind and remember what it is like to see the world through the
eyes of a child. Fav food or restaurant: At the risk of upsetting my doctor, I have to say that I love ice cream. A warm cookie bottom sundae from Ghirardelli Soda Fountain & Chocolate Shop is one of my favorites, and how can you drive by Fair Oak Farms on the way up to Lake County or Chicago and not (continued on page 28)
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BOARD OF GOVERNORS continued from page 27 stop for a milkshake? One of the benefits of a statewide practice is the ability to try different restaurants. Many in my office know to seek me out before a hearing or trial for local restaurant recommendations. For something closer to home, I really like Cannoli Queen in Greenwood for Italian, Egg Roll No. 1 in Beech Grove, the Sizzling Wok near Lafayette Square for Vietnamese food and many of the food trucks that continue to pop up around Indianapolis. Top of my bucket list: There are so many things that I would like to do before I die. While I have been to Epcot, I would still love to travel the world and experience the different cultures (and food choices). With that being said, once we had children, leaving a legacy became a much more important goal. One of my favorite movies is It’s a Wonderful Life, and it shows the impact each one of us can have on the world. To that end, I would love to build an orphanage or a school in order to help those that might otherwise have been forgotten by society. Andrew Z. Soshnick, Indianapolis, Eleventh District, is a partner at Faegre Baker Daniels, where he concentrates his practice in counseling and representing individuals in a wide array of family law matters, with particular emphasis on the economic aspects of matrimonial law. He received his B.A. and M.A. from Northwestern University in 1985 and his J.D. from Northwestern University School of Law in 1988. Andrew is a member of the Indiana State Bar Association, American Academy of Matrimonial Lawyers (Fellow), American Judicature Society and the Indianapolis (Distinguished Senior Fellow), Indiana (Patron Life Fellow) and American (Fellow) bar foundations. He is also active with the Indianapolis Public Library 28
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Fav food or restaurant: anything tuna or salmon. Top of my bucket list: fronting a rock ’n’ roll band that headlines the Download Festival.
Andrew Z. Soshnick Foundation (director) and Phi Gamma Delta fraternity and is a Northwestern University Alumni Regent. He was born in Indianapolis in 1962.
Rafael A. Sanchez, Indianapolis, At-Large District Rep., is a partner at the firm Bingham Greenebaum Doll LLP, where he primarily concentrates his practice in civil and business litigation. He received his B.A. from the University of Puerto Rico, Río Piedras, in 1996 and his J.D. from I.U. Maurer School of Law in 2002. He also studied abroad for a semester at ESADE Law School in Barcelona, Spain, in 2001. Rafael is a member of the Indianapolis and Indiana State bar associations and a Fellow of the Indianapolis and Indiana bar foun-
Professional enjoyment: I enjoy the opportunity to help individuals overcome challenging situations and better themselves. Pro bono service is particularly rewarding. Your inspiration: My father, who was a legendary Indiana trial lawyer, was and is my inspiration. Every day I strive to be worthy of his memory. Why bar association involvement: We have an obligation to give back to our communities, nonlawyers and colleagues. There is no better way to achieve that objective than through active bar association participation. The opportunity to assist and mentor our communities, nonlawyers and colleagues is invigorating and a privilege. If not a lawyer: economics professor Fav hobbies: running, weight lifting and attending rock concerts. Fav book or author and current reading: any political or military history. Fav vacation spot: any place with mountains or deserts.
Rafael A. Sanchez dations. He is also on the leadership team for Plan 2020: The Bicentennial Plan for Indianapolis (co-chair); served as secretary for the 2018 Super Bowl Bid Committee; and is chairman of Leadership Indianapolis. He was born in San Juan, Puerto Rico, in 1974. Professional enjoyment: I enjoy the ability to make a meaningful difference in people’s lives
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and in the community we all live in. Being a lawyer has enabled me to look at situations from a different perspective, always keeping in mind the “whole picture” and identifying creative ways to solve a problem. Armed with these skills, it is no wonder that lawyers are some of the most civically engaged professionals in society. In my opinion, this is the most rewarding aspect of being a lawyer. Your inspiration: From an early age, I always wanted to become a lawyer to protect and advise my family and friends in business and personal matters. Again, it was the notion of being able to make a difference. Why bar association involvement: I think it’s important to give back to the profession and stay engaged with the legal community. The networking at bar association functions is always worthwhile and has led to many professional opportunities. At its highest level, it is also an opportunity for me to impact how lawyers are perceived in the broader community and identify areas where we can collectively become civically engaged and serve our communities.
month-long, multi-country, European vacation. Sonia Das, Indianapolis, At-Large District Rep., is a partner at the firm Rocap Musser LLP, where she focuses on worker’s compensation defense, civil defense litigation, asbestos defense and appellate law. Sonia received her B.A. from Indiana University in 1996 and her J.D. from the I.U. Maurer School of Law in 2000. She is a member of the Indianapolis and Indiana State bar associations, Defense Trial Counsel of Indiana and the Defense Research Institute. She was born in Oak Park, Ill., in 1975. Professional enjoyment: I have always enjoyed research and writing, particularly at the appellate level. I like the organization that goes into preparing a brief and the craftsmanship involved
Sonia Das in analyzing and distinguishing precedent. I also enjoy the opportunity to have an engaging oral argument. Your inspiration: I wish I had a great story, but I don’t. Today, I think I probably became a lawyer because I like rules. I like concepts that can be applied to facts like neat (continued on page 30)
If not a lawyer: corporate CEO/executive Fav hobbies: spending time with my family, traveling and watching movies. Fav book or author and current reading: One of my favorite books is The Death of Common Sense: How Law is Suffocating America because it is so commonsensical. Fav vacation spot: anywhere there is a beach (with a few exceptions). Fav food or restaurant: Puerto Rican cuisine ranks at the top of my list (for obvious reasons), but I don’t mind eating at Ocean Prime every now and then. Top of my bucket list: The ability to create unlimited bucket lists, but, if that option is not available, then to take my family on a RES GESTÆ • NOVEMBER 2014
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BOARD OF GOVERNORS continued from page 29 little bows tied on packages just so. And then I like figuring out why the rules don’t apply and the challenge of convincing someone who is most likely older, more experienced and knows more than me, why an exception to the rule is required. Why bar association involvement: The ISBA offers one of the best opportunities to network with
attorneys and legal professionals from all over the state. I have really enjoyed meeting professionals from other areas of the state, learning about their practices and interacting socially. Because the membership is not limited by any legal specialty, there is a lot of diversity and opportunity to learn from others.
If not a lawyer: chef in my own restaurant Fav hobbies: I play tennis and like to cook. I love fishing and camping and all the things that go along with “living outdoors” – if only for the weekend. Fav vacation spot: Costa Rica. My husband and I spent our honeymoon there. It is definitely a place I would love to visit again. Fav food or restaurant: I just really love food, so it’s hard to choose. I’m a fan of fresh fish and Asian cuisine. Top of my bucket list: I would go on an Alaskan expedition, including National Geographic/“last frontier”-type wilderness vacation activities (sea kayaking, glacier hiking, rock climbing, fishing, etc.), as well as learning life skills from indigenous peoples. Jim Dimos, Indianapolis, Immediate Past President, is a member of the firm Frost Brown Todd
Jim Dimos in its Indianapolis office. He focuses on the litigation needs of the business community in the areas of anti-trust, contract, copyright, First Amendment and media, licensing, patent, product disparagement, trademark, trade secret and unfair competition. He received his A.B. from Wabash College in 1983 and his J.D. from Washington University, St. Louis, Mo., in 1986. 30
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Jim is a member of the Indianapolis (president, 2001), Indiana State (president, 2013-14) and American (member, board of governors, 2010-13; member, House of Delegates, 1994-present) bar associations; Media Resource Law Center; and past two-term member, Indiana Pro Bono Commission. He has been an active member of the Pike Youth Soccer Club (past president), the International Violin Competition of Indianapolis (board member), the National Association of Wabash Men (past president) and many other local, state and national organizations. Jim was born in Evanston, Ill., in 1961. Professional enjoyment: the ability to help people solve their problems either directly as their lawyer or through participating in the efforts of the bar Your inspiration: My father was my biggest inspiration for becoming a lawyer. He attended law school at night while working full-time. Eventually, he had to abandon his pursuit of a law degree when he was offered a significant promotion. While he never completed his degree or practiced law, my father had a passion and respect for the law unmatched by anyone else I know. Why bar association involvement: It provides me with the opportunity to know my fellow practitioners, which fosters civility and camaraderie among us. It also allows me to work with lawyers to make a positive difference in our communities, improving the justice system and assisting those in need. Both result in making the practice of law more rewarding and satisfying. If not a lawyer: sports broadcaster or college professor
Fav hobbies: soccer, exploring wineries and microbreweries, technology and watching classic movies. Fav book or author and current reading: I enjoy a wide range of authors and subjects. Right now, I’m reading The Bully Pulpit: Theodore Roosevelt, William Howard Taft, and the Golden Age of Journalism by Doris Kearns Goodwin. Fav vacation spot: Sonoma, Calif. Fav food or restaurant: Greek – what else? Top of my bucket list: attend the World Cup final in which the United States is playing. Andi M. Metzel, Indianapolis, Chair, House of Delegates, is a partner at Benesch Friedlander Coplan & Aronoff LLP with a practice that spans four groups (litigation, real estate & environmental, transportation & logistics, and China). She is a part of her firm’s Women’s
Andi M. Metzel Initiative Committee and routinely helps to drive the firm’s business development and client relations efforts. Andi’s diverse practice is largely focused on complex litigation in federal and state courts, land use, development and strategic consulting for businesses seeking to invest and grow in Indiana and around the United States. Andi strongly
encourages a cooperative dialogue among government and industry leaders and is actively engaged in the ongoing effort to enable businesses to succeed in a competitive global marketplace. She was educated at Franklin College, B.A., Political Science and Philosophy, 1991; studied International Relations and Politics at Acadia University in Nova Scotia, Canada, 1988-89; studied at the United Nations while attending Drew University, 1989-90; and Indiana University Robert H. McKinney School of Law, J.D. 1996. Legal memberships include Indianapolis (board of directors, 2010) and Indiana State (board of governors, 2008-09; secretary, 2006-07; past co-chair, Leadership Development Academy Committee; past chair, Women in the Law Committee; ISBA delegate, ABA House, 2010-present) bar associations; Indianapolis Bar Foundation (board of directors 2008, 2009; development chair, 2008; Distinguished Fellow, 2007); and member, Indiana Supreme Court Disciplinary Commission. Andi is also a past and/or present member of the following sections and/or committees: Corporate Counsel, Employment, Labor & Benefits Law, Litigation, Improvements in the Judicial System, Legal Ethics, Land Use & Zoning and Women in the Law. She was born in Cincinnati, Ohio, in 1969. Professional enjoyment: I am intrigued by the principles of fairness, the evolution of human nature and the significance (or lack thereof) of rationality, morality, logic, objectivity and advocacy. Your inspiration: “Justice” is so much more than a preteen clothing store at Castleton Square Mall. (continued on page 32)
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BOARD OF GOVERNORS continued from page 31 Why bar association involvement: The bar association enables me to honor my personal commitments to professional competence and improvement, service to the profession generally, and service to the public. If not a lawyer: architect Fav hobbies: golfing, sportingclays shooting, travel & exploration, scuba diving, sailing/boating. Fav book or author and current reading: I’m currently reading Words that Work: It’s Not What You Say, It’s What People Hear. Fav vacation spot: Any place not my office. Fav food or restaurant: corn and grapes. Bourbon is primarily made from corn, and wine is made from grapes. Both are nectars of the gods! Top of my bucket list: write a screenplay or book. Hon. Thomas J. Felts, Fort Wayne, Chair-Elect, House of Delegates, is judge of the Allen Circuit Court. Previously, he served as a magistrate for the court and
Hon. Thomas J. Felts was an associate, then partner at the firm Burt Blee Dixon Sutton & Bloom LLP. Judge Felts received his B.A. from the University of Notre Dame in 1976 and his J.D. from the I.U. Maurer School of Law in 1979. He is a member of the Allen 32
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County and Indiana State bar associations. Judge Felts currently serves as a member of the boards of directors for the Allen County Courthouse Preservation Trust, Indiana Judges Association, Allen County Community Corrections, Foellinger Foundation, Indiana Judicial Conference and the St. Joseph Community Health Foundation. He is also a member of the Indiana General Assembly Interim Committee on Courts & the Judiciary. Judge Felts was born in Fort Wayne in 1954. Professional enjoyment: Two things come to mind. I like the process of identifying, analyzing and solving problems in an orderly fashion, and I enjoy working with and being around lawyers, the vast majority of whom are great people. Your inspiration: Very honestly, I decided to go to law school at the beginning of my senior year of college because I didn’t have anything else lined up and I wasn’t sure what else I would do upon graduation. I’m extremely blessed and grateful that fate intervened in that way. I can’t imagine enjoying any other profession more than I’ve enjoyed being a lawyer. Why bar association involvement: It’s a matter of collegiality, networking and impact. Involvement in a bar association, at any level, provides an opportunity to interact with fellow legal professionals in ways that help us do our jobs better as well as provide the “strength in numbers” to effectuate change. If not a lawyer: From a practical standpoint, I would probably choose to be a teacher at either the college or high school level. I have been an adjunct professor and enjoyed it very much. If finances weren’t a necessary factor, I would
probably follow my original dream of playing the piano and singing in a bar someplace warm. Fav hobbies: My outside interests generally fall into two categories – running and music. I run approximately 25-45 miles a week, have completed 22 marathons and run in four to five races each year. I play the piano for fun and serve as a substitute cantor/liturgist for a few churches in town. I also sing in my church choir and am part of a contemporary Christian/Catholic group that has recorded two CDs and performs occasionally at churches and other religious services. Fav book or author and current reading: Like many lawyers, I have read all of John Grisham’s books and enjoyed them very much. I have just finished his latest novel, Sycamore Row, which may be one of his best. Fav vacation spot: My wife and I spent a week this summer at the Grand Hotel on Mackinac Island, our sixth time there. It is beautiful, peaceful and relaxing. Fav food or restaurant: My ideal meal would be great food and drink at a classic Irish pub, whether in Dublin, New York City or even closer to home. Top of my bucket list: I’ve made no secret, to those who know my family and me especially, of the fact that my goal is to live, and live well, to age 100 – that would be awesome. Matthew J. Light, Indianapolis, Chair, Young Lawyers Section, is the chief deputy attorney general at the Office of the Indiana Attorney General. He first joined the AG’s Office in 2005 as a deputy attorney general in the consumer protection division and later served as the chief counsel of advisory and ADR services division, overseeing the office’s work in relation to opinions, contracts, administrative rules and public records and as advisory counsel for agencies, boards and commissions. Prior to the AG’s
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able. The legal profession offers a platform for me to give back to others and to return some of the assistance and opportunities I’ve been given over the years.
Matthew J. Light Office, Matthew was an associate attorney at Park Legal LLC, a data privacy law firm; a solo practitioner; and a program development manager and instructor for TGA of Hamilton & Boone (junior golf instruction company). Matthew is a member of the Indiana State (graduate, Leadership Development Academy, 2013; member, Young Lawyers Section governing council, 2009-present; treasurer, Professional Legal Education, Admission & Development Section (PLEADS); member, Governmental Practice Section) and American (young lawyer delegate, House of Delegates; member, State & Local Government and Dispute Resolution sections) bar associations. He received his B.A. in journalism from Indiana University in 2002 and his J.D. from the I.U. Maurer School of Law in 2005.
Your inspiration: During high school and college I became intrigued with the way the law was used, and could be used, to resolve disputes and protect individuals’ most valued interests and assets. I also became very interested in the way the public could participate in holding elected and appointed officials accountable for applying the law and administering justice. I decided that becoming a lawyer provided the best opportunity for me to be an active participant in that process and advocate for positive change. Why bar association involvement: I think it’s an important part of contributing to the ongoing development and enhancement of our profession. We have an obligation to provide resources, guidance and direction to our colleagues to
promote ethical conduct and best practices for pursuing our clients’ and communities’ best interests. Membership and participation in the ISBA provides numerous opportunities to promote those values. If not a lawyer: shortstop for the Cincinnati Reds or something involving sports administration, sports journalism or nonprofit/parks administration Fav hobbies: golf, baseball, basketball, tennis, biking, landscaping, writing, traveling and spending time with family. Fav book or author and current reading: I’m currently reading David Cook’s Seven Days in Utopia and Bob Knight’s The Power of Negative Thinking. Fav vacation spot: Encinitas, Calif. Fav food or restaurant: homemade strawberry pie via my granny, mom or wife. Top of my bucket list: summer road trip with my family to visit all 30 MLB parks and golf at Augusta, Sawgrass and Pebble Beach.
He was born in Muncie in 1980. Professional enjoyment: Opportunities to use training and skills to advocate for others and to empower them with information and options that allow them to help themselves. I’ve always been interested in attempting to resolve disputes between friends, family, acquaintances and others, and to explore ways to achieve results that are mutually beneficial or accept-
Your donations brought the We The People program to 6,000 Hoosier boys and girls. You can help more students become critical thinkers with a donation to civic education. To donate: www.inbf.org 615 N. Alabama St. #122 Indianapolis, IN 46204 All donations tax deductible To volunteer: firstname.lastname@example.org
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By Donald R. Lundberg
Can the attorney-client privilege & work product doctrine be defeated by equitable considerations? Disclosure and disclaimer: My law firm, Barnes & Thornburg LLP, was counsel for the petitioner in the case I discuss here at the Supreme Court transfer stage, but not before the Court of Appeals. I personally was not. As with all of my columns, the views stated here are mine alone and do not necessarily represent those of Barnes & Thornburg, its lawyers or its clients.
n March 24, the Indiana Court of Appeals decided an important and, to my mind, controversial case dealing with the attorney-client privilege and work product doctrine. Purdue University v. Wartell, 5 N.E.3d 797 (Ind. Ct. App. 2014), trans. denied, 16 N.E.3d 424. The appeal grew out of an internal complaint filed by Purdue’s Fort Wayne campus Chancellor Michael A. Wartell against Purdue’s then-President France Córdova.
Controversy at the top We don’t know the nature of Wartell’s grievance from the court’s opinion. The university had an internal complaint process that entailed the appointment of a university employee, often, but not always, a lawyer, to conduct an investigation and make a report to a university official who, in turn, was to submit the report to a threemember panel of the university’s Advisory Committee on Equity. Both the complainant and respondent had an opportunity to meet with the university official and the Advisory Committee panel. The panel’s written decision on the matter was considered the university’s final resolution of the Donald R. Lundberg matter. The panel Barnes & Thornburg LLP was required to decide Indianapolis, Ind. whether there was a donald.lundberg@BTLaw.com violation of university 34
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policy, and, if so, what should be done about it. The Wartell grievance was different because both the grievant and respondent were high-level university officials, and all of the participants in the normal complaint process would have been subordinate to the respondent. The university’s vice president for ethics & compliance proposed an alternate procedure that both the complainant and the respondent accepted. Under the vice president’s proposal, she would appoint an investigator acceptable to both parties, “preferably an Indiana attorney with a practice in the area of higher education,” who would meet with both parties and otherwise conduct an investigation to determine whether the charges were substantiated or whether the complaint was knowingly false or malicious or something in between. The investigator was to recommend a sanction against the respondent if the charges were substantiated or against the grievant if they were knowingly false or malicious. The vice president was to provide the investigator’s written report to a three-member panel of university trustees selected by the vice president. The trustee panel’s decision would be the university’s final action in the matter.
Lawyer-investigator appointed Using this agreed procedure, an investigator, who was an Indiana lawyer, was appointed. We do not know the exact language of the terms of engagement, but the vice president and the investigator created terms of engagement by email exchange that apparently established expectations along the lines described above: that the investigator would conduct an investigation, make findings and recommendations, and submit a
written report to the trustees panel. The appellate opinion implied that the terms of engagement did not contemplate that the lawyer-investigator would provide legal advice and counsel to Purdue. The investigator interviewed the complainant, the respondent and a number of other witnesses before making his report to the panel. The panel rendered a decision, but the court’s opinion does not reveal what it was.
Demanding the fruits of the investigation After the investigator made his report, the complainant requested a copy from the university under the Indiana Access to Public Records Act. The university turned down the request on grounds that the report was confidential because it was privileged as an attorney-client communication and it was attorney work product. The complainant professed to be surprised that the investigator had been engaged by the university as its attorney and made a complaint to the Indiana Public Access Counselor. The Public Access Counselor issued an equivocal advisory opinion without resolving the key question: Was the investigator the university’s attorney? He concluded that if the investigator was the university’s attorney, the university was not required to turn over his report because it was protected by both the attorney-client privilege and the work product doctrine. If the investigator was not the university’s attorney, the report was not protected, and the university had to disclose it. The complainant then filed suit to compel the university to disclose the report. Couched as a dispute over discovery, the trial court held that the university was equitably estopped from asserting the attorney-client privilege and the work
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product doctrine as grounds for not disclosing the report. That order was reviewed by the Court of Appeals on interlocutory appeal, resulting in the opinion I discuss here.
Lawyers as investigators versus lawyers as attorneys As had the Public Access Counselor, the Court of Appeals understood that the protections of the attorney-client privilege and work product doctrine were available to the university only if the lawyer-investigator stood in an attorney-client relationship with the university. A case that does an especially good job of analyzing the interplay between lawyer investigative functions and privilege is Sandra T.E. v. South Berwyn School District 100, 600 F.3d 612 (7th Cir. 2010), a case that was cited by the Court of Appeals in its decision. In Sandra, a school district hired Sidley & Austin to investigate claims that a teacher had sexually molested numerous students. Sidley attorneys interviewed many witnesses, took notes of those interviews and drafted memoranda summarizing the interviews. Sidley delivered an oral report and written executive summary of its investigation to the school district.
leged merely because the investigation was conducted by a lawyer, it disagreed with the district court that the Sidley investigation was merely an investigation. The flaw in the district court’s analysis was that it failed to take account of the purpose of the investigation as set forth in the terms of engagement between the school district and Sidley, which was to “investigate the response of the school administration to allegations of sexual abuse of students” and to “provide legal services in connection with” the investigation. The appellate court considered the engagement letter to be the most important evidence defining the nature of the relationship between the school district and Sidley. This, said the Seventh Circuit, demonstrated that the investigation was fact gathering in anticipation of providing legal advice to the school district on the basis of the gathered facts.
Relying on the Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383 (1981), the court concluded that “factual investigations performed by attorneys as attorneys fall comfortably within the protection of the attorney-client privilege.” 600 F.3d at 619 (court’s emphasis). “The first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant.” Id., quoting Upjohn, 449 U.S. at 390-91. For similar reasons – because Sidley was acting as the school district’s legal counsel, not solely as an investigator – the court reversed the district court’s decision that Sidley’s investigation records were not privileged communications or attorney work product. (continued on page 37)
In a separate litigation against the school district, the plaintiffs subpoenaed the written documents generated by Sidley in its investigation, which Sidley resisted on the basis of attorney-client privilege and work product doctrine. The district court concluded that Sidley had been acting as an investigator, not as the school district’s legal counsel, and ordered the firm to produce the documents. The Seventh Circuit reversed. While not disagreeing with the district court’s view that the fruits of an investigation, as such, will not be protected from discovery as priviRES GESTÆ • NOVEMBER 2014
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“Talk to a Lawyer Today” Pro Bono • 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) email@example.com 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 firstname.lastname@example.org
District F Blackford, Delaware, Hamilton, Hancock, Henry, Jay, Madison & Randolph counties
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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) email@example.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) firstname.lastname@example.org
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 email@example.com
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ETHICS CURBSTONE continued from page 35 Investigator, not attorney Let’s return to the Wartell case. Answering the classic riddle, when is a lawyer not an attorney, the Court of Appeals said, when he’s an investigator. Here, the court concluded that the lawyer-investigator in this case was solely an investigator. The court looked at a number of indicia that the lawyerinvestigator was acting as a pure investigator and not as the university’s attorney; hence, it was not a privileged relationship. In reaching that conclusion, the court considered a number of factors: the investigator acknowledged that his role was to do a thorough, competent and fair investigation and not to be an advocate on behalf of Purdue; the investigator did not inform the complainant that he was Purdue’s attorney; the vice president described the desired investigator as someone whose credential as an Indiana attorney was preferable, but not required; and the university’s internal complaint investigations in the past had been conducted by both lawyers and nonlawyers. This was enough for the Court of Appeals to conclude that the lawyer-investigator’s actions spoke louder than words and that he was acting solely as an independent investigator and not as the univer-sity’s legal counsel.
Equitable limitations on the attorney-client privilege But the court didn’t stop there. It acknowledged the historical and policy importance of both the attorney-client privilege and work product doctrine; plus, it agreed with the university’s assertion that equitable estoppel has not been a recognized exception to either the attorney-client privilege or the work product doctrine. Nonetheless, it went on to agree with the trial court that the doctrine of equitable estoppel
precluded the university from relying on those two evidentiary privileges to prevent the complainant from discovering the investigator’s report. Thus, the Court of Appeals affirmed the trial court’s decision compelling the university to turn over the report for that reason as well.
administration of justice.’” Swidler, 524 U.S. at 403 (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). See also Mayberry v. State, 670 N.E.2d 1262, 1267 n. 5 (Ind. 1996), (citing Buuck v. Kruckeberg, 121 Ind. App. 262, 271, 95 N.E.2d 304, 308 (Ind. Ct. App. 1950)).
The Court of Appeals’ equitable estoppel rationale for reaching its outcome is troubling. The court considered equitable estoppel as having a role to play in the resolution of the case, even though there was no precedent for it as a basis for a privilege exception, because “[e]quity looks beneath the rigid rules to find substantial justice” and “has the power to prevent strict legal rules from working injustice.” 5 N.E.3d at 800, quoting Wabash Valley Coach Co. v. Turner, 46 N.E.2d 212, 217 (Ind. Ct. App. 1943), trans. denied.
Moreover, this analysis seems to conflict with the Indiana Supreme Court’s recent decision in TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985 (Ind. 2014). That case is important for many other reasons and perhaps the topic of another column, but for now the Supreme Court said something highly pertinent to the Court of Appeals’ equitable estoppel discussion in Wartell: “[W]e cannot agree with the Court of Appeals that [the company’s] ‘privilege is waived because the report is necessary to the litigation and requiring its production comports with fairness.’ Both attorneyclient communication and attorney work product prepared in anticipation of litigation enjoy protected status under Indiana law. 15 N.E.3d at 997, quoting In re TP Orthodontics, Inc., 995 N.E.2d 1057, 1065 (Ind. Ct. App. 2013).
Search for the truth versus client candor This caught my attention. If the attorney-client privilege and work product doctrine can be trumped by equitable considerations, such as an interest in doing substantial justice, it would seem that they would almost always give way. But they don’t, and they shouldn’t. By definition assertions of privilege will usually be “inconsistent with the paramount judicial goal of truth seeking,” Swidler & Berlin v. United States, 524 U.S. 399, 410 (1998). We are willing to accept that these privileges will be an obstacle to the search for the truth because they protect other values important enough to outweigh truth-seeking. Regarding the attorney-client privilege: “The privilege is intended to encourage ‘full and frank communication between lawyers and their clients and thereby promote broader public interests in the observance of law and the
Do we really need to go there? The equitable estoppel rationale for the outcome in Wartell was unnecessary in light of the court’s (continued on page 38)
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ETHICS CURBSTONE continued from page 37 holding that the investigator was, in fact, not acting as the university’s attorney. The mischief arises when the court went on to assume “for argument’s sake” that the investigator was acting as the university’s legal counsel. With that counterfactual assumption in hand, the court agreed with the trial court that “Purdue should be equitably estopped from invoking the attorney-client privilege and the workproduct doctrine.” We should understand that the Court of Appeals’ discussion of equitable estoppel was dicta. The court clearly held that the facts demonstrated the lawyer-investigator was merely an investigator and had no attorney-client relationship with the university. The court’s gratuitous discussion of equitable estoppel should not be understood as breaking the extraordinary new
Conclusion Indiana lawyers (and even more, their clients) should be concerned about the court’s dicta in Wartell. Lawyers should resist the use of that case as authority for what it does not actually hold. The integrity of the attorney-client privilege and work product doctrine should not be a jump ball in competition with broad equitable considerations like substantial justice. An important hallmark of both the attorney-client privilege and the work product doctrine is that they must be predictable so that lawyers and clients can confidentially communicate and lawyers can go about
their work with the assurance that those privileges will be honored. If otherwise-privileged attorneyclient communications are vulnerable to a post-hoc equity analysis, clients will never feel free to confide in their lawyers, fearing their communications will not be off limits to adverse parties. Even attorney work product protection (excluding the core work product of attorney mental impressions), which, according to Trial Rule 26(B)(3), can be defeated only by a showing of substantial need and undue hardship, requires more than an amorphous showing of fairness or substantial justice to breach it. Next up: Wartell tees up the important topic of what lawyers should do to protect privilege and work product when they conduct investigations. I will discuss it next month.
legal ground that both attorneyclient privilege and attorney work product protections are permeable if broad equitable considerations, like seeking substantial justice, can outweigh them.
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By Maggie L. Smith and Abigail T. Rom
Appellate civil case law update
Unanimous Supreme Court grants transfer and in written opinion urges attorneys, Department of Child Services and courts to pursue video or telephonic conferencing in parental rights termination hearings when parents are incarcerated and unable to attend in person Mother was incarcerated on the day of a scheduled hearing on the termination of her parental rights, and the trial court denied Mother’s motion to continue the hearing until she was no longer incarcerated. At the hearing, Mother’s attorney cross-examined Department of Child Services (“DCS”) witnesses and called Mother’s mother to testify, but did not introduce affidavits or deposition testimony from Mother. The trial court terminated Mother’s rights. Mother appealed, arguing her due process rights were violated and her attorney provided ineffective assistance of counsel. The Court of Appeals affirmed the trial court’s denial of the motion to continue because the evidence supporting the termination of Mother’s parental rights was overwhelming. At issue was whether the termination hearing should have been continued to allow Mother to attend. A unanimous Supreme Court in In re K.W., 12 N.E.3d 241 (Ind. 2014) (David, J.), held that the trial court abused its discretion when it denied Mother’s motion to continue. In so doing, it relied upon the factors in In re C.G., Z.G.
v. Marion County Department of Child Services, 954 N.E.2d 910 (Ind. 2011), which apply to motions to transport incarcerated parents to a termination hearing. The Supreme Court held that although the test is not binding on Mother’s motion to continue – a distinct form of relief than a motion to transport – the factors were “helpful in our review of the trial court’s exercise of discretion.” A review of the factors showed that Mother “showed good cause why her motion should be granted,” given that her “fundamental rights to parental autonomy were challenged, attacked, and taken away – without [Mother’s] personal participation in any way.” The Court made note that Mother’s counsel did not move to transport Mother for the hearing or to have her appear by video or telephone. While it made no finding on the effectiveness of counsel, it instructed that the best practice for Mother’s attorney, and all attorneys, would be to pursue appearance telephonically or by video conferencing. The Supreme Court’s decision suggests that DCS should also suggest this option in such instances. The Court concluded that Mother’s due process rights were violated and she was not “heard at a meaningful time and in a meaningful manner,” which was “far from being fundamentally fair – and it was therefore prejudicial.”
Supreme Court upholds trial court’s damages and attorney fees award in fact-sensitive real estate case Buyers and Seller entered into a real estate contract that authorized Buyers to terminate the contract if Seller refused to fix any “major defect” discovered during inspection. The termination agreement did not extend to Seller’s
refusal to undertake “routine maintenance” or to make “minor repairs.” An inspection revealed that electricity did not flow to three outlets, which buyers considered a “major defect.” Buyers submitted a demand under the contract and conditioned their purchase on a timely response. Seller did not timely respond, though she fixed the problem for $117, and Buyers tendered a mutual release. Seller refused to release Buyers and sued for specific performance or damages. Buyers and Seller engaged in protracted litigation, including two appeals, first to determine whether Buyers breached the real-estate contract and, second, whether Seller mitigated her damages. The first appeal established Buyers did breach the contract. The trial court then calculated Seller’s damages, and both parties appealed. The Court of Appeals modified the trial court’s order, and the Supreme Court granted transfer. At issue was whether Seller properly mitigated her damages, which is a question of fact that will be reversed only if there Maggie L. Smith are no facts to support Frost Brown Todd the trial court’s concluIndianapolis, Ind. sion either directly or by firstname.lastname@example.org inference. The Supreme Court held in Fischer v. Heymann, 12 N.E.3d 867 (2014) (Rush, J.), that the record fully supported the trial court’s findings. Of particular note, the Court found that Seller did not unreasonably reject Buyers’ demand that she fix the “major defect.” Abigail T. Rom The Court reasoned Frost Brown Todd (continued on page 40)
RECENT DECISIONS 7/14
n July, the Indiana Supreme Court issued six civil opinions and granted transfer in two civil cases. The Court granted rehearing with opinion in one case. The Indiana Court of Appeals issued 32 civil opinions.
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RECENT DECISIONS 7/14 continued from page 39 it was within the trial court’s discretion to rely upon the outcome of the first appeal that Buyers’ demand constituted breach; thus, the seller reasonably refused to surrender to a breach. “Just as breaching parties may not take advantage of their breach to relieve them of their contractual duties, neither may they take advantage of their breach to require nonbreaching parties to perform beyond their contractual duties.” (Internal citations omitted.) The Court concluded that “[h]olding otherwise would require sellers like [Seller] to choose between surrendering to the terms of a breach or forfeiting damages whenever a buyer breaches an agreement by conditioning purchase on strict compliance with an unreasonable demand. This predicament would let buyers demand minor repairs with impunity and undermine sellers’
ability to enforce the ‘major defects’ clause of countless real estate contracts. To the contrary, if the contract terms permit, sellers may refuse to replace the bathroom mirror, produce the warranty for household appliances, or – as in [Seller’s] case – timely repair an electrical problem by pushing the reset button on three outlets and replacing a light bulb.”
Per curiam opinion holds action is commenced against new parties on date motion to amend is filed, even though permission may be granted at later date On the last day before the applicable two-year limitation period expired, the plaintiff moved to amend an existing complaint to add new defendants, tendering an amended complaint and summonses for the new defendants.
Eleven days later – after the statute of limitations had expired – the trial court granted the plaintiff’s motion to amend. The new defendants then moved to dismiss or for judgment on the pleadings and argued the amendment was too late, outside the limitation period. The Court of Appeals disagreed, holding the amendment was timely and that an action is commenced against new parties on the date a motion to amend is filed, even though permission may be granted at a later date, deciding not to follow A.J.’s Automotive Sales, Inc. v. Freet, 725 N.E.2d 955, 964-66 (Ind. Ct. App. 2000), which reached a different result under similar facts. A per curiam Supreme Court opinion in Camoplast Crocker, LLC v. Schoolcraft, 12 N.E.3d 251 (Ind. 2014), agreed with the analysis and result reached by the Court of Appeals and expressly adopted and incorporated that decision by reference.
By order, Supreme Court dismisses appeal as untimely
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addressed the merits of a father’s request for change in custody, the Supreme Court in In re Paternity of C.J.A. v. T.A., 12 N.E.3d 876 (Ind. 2014), granted transfer and held the “order is not an appealable final judgment. The order does not dispose of all claims as to all parties and does not fit within any other definition of ‘final judgment’ listed in Indiana Appellate Rule 2(H). In addition, the order appealed is not within any of the categories of interlocutory orders from which an appeal may be taken as of right under Appellate Rule 14(A), and the appellant did not seek certification to file a discretionary interlocutory appeal under Appellate Rule 14(B).” The Supreme Court thus dismissed the appeal.
Per curiam opinion holds that cross-appeal is not required when appellee is presenting alternate ground for affirming trial court
SUPREME COURT REHEARING OPINION The Indiana Supreme Court granted rehearing in Veolia Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 12 N.E.3d 240 (Ind. 2014), and as to all issues not expressly addressed in the principal opinion, the Court summarily affirmed the Court of Appeals opinion.
SUPREME COURT TRANSFER DISPOSITIONS The Indiana Supreme Court granted transfer in the following civil cases, with the opinions to follow at a later date: • Wysocki v. Johnson, 4 N.E.3d 1218 (Ind. Ct. App. 2014) (Friedlander, J.), transfer granted on July 10 (dealing with attorney fees under the Indiana Crime Victims Relief Act).
• Ind. Restorative Dentistry, P.C. v. The Laven Ins. Agency, Inc., 999 N.E.2d 922 (Ind. Ct. App. 2013) (Riley, J.), transfer granted on July 24 (dealing with duty of insurance company to advise client about coverage).
SELECTED COURT OF APPEALS DECISIONS Police departments are ‘public agencies’ as defined by the Indiana Access to Public Records Act and thus a suable entity under the Act Prisoner sought records from Police Department under the Indiana Access to Public Records Act (“APRA”). When the Police Department failed to respond to multiple requests, Prisoner filed (continued on page 42)
In Drake v. Dickey, 2 N.E.3d 30 (Ind. Ct. App. 2013), the Court of Appeals indicated the appellees failed to denominate as a crossappeal an argument rejected by the trial court that the appellees contend is an alternative ground for affirming the summary judgment order. On transfer, the Supreme Court in Drake v. Dickey, 12 N.E.3d 875 (Ind. 2014), summarily affirmed the rest of the decision, but vacated the cross-appeal discussion, holding, “The Appellate Rules do not require the filing of a crossappeal where the appellee does not seek reversal of the order or judgment appealed, but instead raises a ground for affirming that appears in the record and was rejected or not considered by the trial court or agency.”
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RECENT DECISIONS 7/14 continued from page 41 a complaint against Police Department and Police Chief for violating the APRA. Prisoner filed for summary judgment. In response, Police Department argued it was not a separate suable entity, among other defenses. The trial court granted Police Department’s cross-motion for summary judgment, finding that Police Department was not suable under Indiana law. Prisoner appealed. On appeal, the Indiana Court of Appeals in Lane-El v. Spears, 13 N.E.3d 859 (Ind. Ct. App. 2014) (Pyle, J.), held in part that although police departments do not fall within the definition of a municipal corporation, the APRA provides that “[a] person who has been denied the right to inspect or copy a public record by a public agency may file an action” against such agency. “Public agency” is defined in part as “[a]ny law enforcement agency.” Therefore, the court held that
Police Department was a public agency and suable under the APRA.
County Tourism Bureau’s branding identifier was not protectable trade name, such that Hotel’s use was not a violation or unfair competition County Tourism Bureau (“Bureau”) announced at a public hearing that the phrase “Visit Michigan City LaPorte,” would be used as a branding identifier in promoting tourism to the area. A representative of Hotel, located in the Michigan City LaPorte area, attended the hearing. Immediately following the hearing, Hotel registered the domain name “visitmichigancitylaporte.com” and began directing traffic from that domain to its own website where it sold hotel reservations and vacation packages. Bureau obtained a trademark certificate and sent cease-and-desist
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RES GESTÆ • NOVEMBER 2014
letters to Hotel, alleging trademark infringement. Bureau filed suit against Hotel when Hotel refused to cease use of the domain name. Although a trial court found violations of trademark and unfair competition, the Court of Appeals reversed. Bureau then sought common law claims under trade name infringement, intent to deceive, acts amounting to cybersquatting, unfair competition in the form of conversion, tortious interference with a contract, palming off, and general unfair competition. The trial court again ruled in Bureau’s favor. In a 2-1 decision, the Indiana Court of Appeals in Serenity Springs, Inc. v. LaPorte County Convention & Visitors Bureau, 13 N.E.3d 487 (Ind. Ct. App. 2014) (May, J.), reversed the trial court on all claims. Relying on Hartzler v. Goshen Churn & Ladder Co., 104 N.E. 34 (Ind. 1914), the court held in part that because Hotel immediately began using the domain name after Bureau first announced its intention to use the phrase, “the name could not have ‘previously come to indicate and designate [the Bureau’s] goods,’ nor could it have by ‘long use,’ become identified in the minds of the public with the Bureau.” Thus, the Bureau’s claims failed. In dissent, Judge Riley urged the “Legislature and supreme court, if the opportunity arises, to look beyond the man and cart method promoted by Hartzler and approved by an out-of-touch majority, and instead usher Indiana into the technological realities of the 21st Century by formulating tools appropriate to handle the complexities of the Internet’s realm.” (continued on page 44)
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RECENT DECISIONS 7/14 continued from page 42 OTHER COURT OF APPEALS DECISIONS • “In an effort to now place Dr. Smith’s treatment in controversy, Appellants rely on respondeat superior to hold GYN, who was presented to the panel, liable for the conduct of a physician that was not analyzed by the Panel. To allow the introduction of a perceived breach in Dr. Smith’s standard of care by virtue of his association with the named corporate health provider, GYN, would enable Appellants to bypass the procedural requirements of the Act and would create a potential avenue for patients to sue their physicians for medical negligence by simply presenting the perceived lack of care in the corporate entity before the Panel and, upon completion of the Panel process, pursue an action against any individual physicians. Such a procedure, which would strip a physician’s protections against the escalation of malpractice claims under the Act, was neither intended nor anticipated by the legislature.” Stafford v. Szymanowski, 13 N.E.3d 890 (Ind. Ct. App. 2014) (Riley, J.).
• “Under Indiana law, a party to a contract ‘is presumed to understand and assent to the terms of the contracts he or she signs.’ Additionally, here, the Note specifies that each borrower acknowledges reading and understanding the Note’s terms before signing. In other words, the timeframe for a borrower to seek clarification concerning the term is before signing.” John M. Abbott, LLC v. Lake City Bank, 14 N.E.3d 53 (Ind. Ct. App. 2014) (Crone, J.) (Internal citations omitted.) • “We conclude that the exculpatory clause regarding mold in this residential lease is contrary to public policy insofar as it seems to immunize Hi-Tec against damages caused by its own negligence. Therefore, the trial court did not err when it concluded that the exculpatory clause was void as against public policy.” Hi-Tec Props., LLC v. Murphy, 14 N.E.3d 767 (Ind. Ct. App. 2014) (Crone, J.). • “Established administrative procedures may not be bypassed simply because a party raises a
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constitutional issue; otherwise they could be circumvented ‘by the mere allegation of a constitutional deprivation.’” Barnette v. U.S. Architects, LLP, 15 N.E.3d 1 (Ind. Ct. App. 2014) (Crone, J.). • “The plain language of Indiana Code section 30-4-2.1-11(a) permits a trust’s incorporation by reference of specific gifts of ‘tangible personal property.’ Because the statute does not expressly permit specific gifts of real property, we conclude that they are prohibited.” Turner v. Kent, 15 N.E.3d 67 (Ind. Ct. App. 2014) (Bradford, J.). Maggie Smith is a 1996 magna cum laude graduate of the University of Arizona School of Law and was a visiting third-year student at the I.U. School of Law-Bloomington. Following graduation, she clerked for the Indiana Supreme Court, Hon. Brent E. Dickson, and served as an adjunct professor at the I.U. School of Law. Maggie is a member of Frost Brown Todd and practices in the area of appellate litigation. She is extremely active in the Indiana appellate bar and serves as a frequent commentator and lecturer on appellate issues. Abby Rom is a 2010 summa cum laude graduate of Valparaiso University School of Law. Following graduation, she clerked for the Indiana Supreme Court, Hon. Robert D. Rucker, and the U.S. District Court for the Southern District of Indiana, Hon. Tanya Walton Pratt. Abby is an associate with Frost Brown Todd and practices in the areas of business and appellate litigation.
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By Prof. Joel M. Schumm
Public intoxication, replacing a juror, other holdings Material elements of offenses cannot enhance sentences
or decades Indiana precedent has prohibited use of a material element of an offense as “an aggravating circumstance to support an enhanced sentence.” Townsend v. State, 498 N.E.2d 1198, 1201 (Ind. 1986). The rationale is an assumption that the General Assembly “took into consideration the serious nature of every act it defines as criminal, and that in all cases it assigned an appropriate level of punishment.” Pavey v. State, 477 N.E.2d 957, 963 (Ind. Ct. App. 1985). The issue was complicated by the sweeping 2005 amendments to Indiana’s sentencing scheme that eliminated the fixed presumptive term and left intact the lower and upper limits for each felony classification. Gomillia v. State, 13 N.E.3d 846, 848-49 (Ind. 2014). In light of the amendments and Pedraza v. State, 887 N.E.2d 77 (Ind. 2008), several Court of Appeals’ opinions held that “trial courts are no longer prohibited from considering material elements of an offense when considering aggravating circumstances at sentencing.” Gomillia, 13 N.E.3d at 852. The Indiana Supreme Court found this reading “too broad” in Gomillia. Rather, “[w]here a trial court’s reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is ‘improper as a matter of law.’” Id. at 853 (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007)).
Nevertheless, the justices upheld Gomillia’s sentence. The trial court referred to the “circumstances of the crime,” and the Supreme Court found both the “leadership role Gomillia played in the commission of these offenses” and “the terror the victim suffered” appropriate reasons to enhance his sentence above the advisory term. Id.
Lawfully seized evidence subject to laboratory testing In Guilmette v. State, 13 N.E.3d 38, 39 (Ind. 2014), police arrested a man for theft and seized his shoe to search for evidence of murder, and the Indiana Supreme Court considered whether police must obtain a warrant “before subjecting lawfully seized evidence to laboratory testing if that evidence is unrelated to the crime for which the defendant is in custody.” Id. at 41. Forty years ago, the United States Supreme Court held “it is difficult to perceive what is unreasonable about the police’s examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.” U.S. v. Edwards, 415 U.S. 800, 806 (1974)). The Indiana Supreme Court reached the same result under Article 1, Section 11 of the Indiana Constitution, concluding (1) police had strong suspicion the defendant had committed murder; (2) the intrusion on his ordinary activities were minimal; and (3) “it would be extremely cumbersome to require law enforcement to take the … approach of applying for an independent warrant anytime they wish to examine or test a piece of evidence they have already lawfully seized.” Guilmette, 13 N.E.3d at 42.
Class A felony conspiracy to commit robbery does not require actual serious bodily injury
CRIMINAL JUSTICE NOTES 7/14 - 8/14
INDIANA SUPREME COURT CASES
The base offense of robbery is a Class C felony but becomes a Class A felony “if it results in serious bodily injury to any person other than a defendant.” Ind. Code §35-42-5-1. As a matter of first impression in Erkins v. State, 13 N.E.3d 400 (Ind. 2014), the Indiana Supreme Court held the State was not required to prove “the actual existence of serious bodily injury in order to convict a defendant of class A felony conspiracy to commit robbery ... .” Id. at 407 (emphasis added). The majority observed, “[I]t is well established that defendants can conspire to commit a specific result – here robbery resulting in serious bodily injury.” Id. at 408. Justice David explained the A felony conspiracy offense was in effect “two ‘mini-conspiracies’ within one crime: a conspiracy to commit robbery and a conspiracy to commit serious bodily injury in the course of the robbery. Each ‘mini-conspiracy’ requires the State to establish intent, agreement, and the commission of an overt act in furtherance of the agreement.” Id. at 408. With a wealth of evidence from recorded phone conversations and surveillance cameras, the Court found sufficient evidence the defendants not only conspired to rob the victim but also to seriously injury him in the course of the robbery. Id. at 410. Justice Rucker, joined by Chief Justice Joel M. Schumm Dickson, dissented.1 Clinical Professor of Law They emphasized that IU Robert H. McKinney serious bodily injury is (continued on page 46)
School of Law Indianapolis, Ind. email@example.com
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CRIMINAL JUSTICE NOTES 7/14 - 8/14 continued from page 45 not an element of robbery but simply a penalty enhancement, and the conspiracy statute provides: “A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony.” Id. at 412-13 (quoting Ind. Code §35-41-5-2(a)) (Court’s emphasis). Moreover, the dissent noted the anomalous result that co-defendants committing an actual robbery face the A felony offense only when serious bodily injury results while those who merely conspire to rob a victim may face the A felony offense “even if bodily injury never occurs. With such a lethal weapon at its disposal why would the State ever charge a simple robbery offense?” Id. at 413.
INDIANA COURT OF APPEALS CASES A new sufficiency standard? Each year hundreds of criminal cases include the familiar refrain of not reweighing the evidence or judging the credibility of witnesses before, in well over 90 percent of the cases raising a challenge to the sufficiency of the evidence, upholding a conviction “unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Meehan v. State, 7 N.E.3d 255, 257 (Ind. 2014). Beyond a reasonable doubt is certainly a high burden, but so is the appellate court’s deference to the factfinder’s assessment. Earlier this year in Meehan v. State, 7 N.E.3d 255, 257 (Ind. 2014), the Indiana Supreme Court explained: The existence of the possibility of being “framed” does not amount to a lack of substantial evidence of probative value from which the jury could reasonably infer that Meehan committed the burglary. In reviewing sufficiency claims, we look at what 46
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evidence was presented to the jury, not at what evidence was not presented.
Judge Crone, who authored the vacated Court of Appeals’ opinion in Meehan, views the Indiana Supreme Court’s opinion as fundamentally changing the sufficiency equation. As he wrote for the majority in Willis v. State, 13 N.E.3d 460 (Ind. Ct. App. 2014), trans. granted: Given that approximately seven billion other persons also lacked authorization to enter the building and that the “potential burglary tools” were found in Meehan’s possession while he was standing on a street corner over seven months after the burglary, we must conclude that under Meehan, the quantum of circumstantial evidence needed to affirm a criminal conviction in Indiana is extremely small indeed.
Id. at 462. In an opinion joined by Judge Baker, a conviction for criminal trespass was upheld in Willis because the defendant was observed running near the scene of the alleged crime shortly after a security alarm was activated and voices and noises were heard inside the Center. Another man was seen running in the opposite direction. Evidence of flight may be considered as circumstantial evidence of consciousness of guilt. Police also found a vandalized vending machine inside the Center and a vehicle with its doors and trunk open outside the Center. Officers apprehended [the defendant] based on the description of Officer Clouse, who confirmed his identity.
Id. at 462-63. (internal citation omitted). Judge Barnes, however, dissented. The entirety of the evidence upon which Willis was convicted was the fact that he was seen running at a distance of approximately 100 yards. I am not convinced that this evidence can be construed as Willis’s fleeing from the scene of the crime. Even though we are bound to give the State a reasonable inference here,
it is well-settled Indiana law that flight from a crime scene, in and of itself, is not sufficient to sustain a conviction. We are not in the business of horseshoes and hand grenades, where “close” is good enough. I am convinced the State has failed in its burden of proof and vote to reverse.
Id. at 462 (Barnes, J., dissenting). Transfer was recently granted in Willis, and thus the Indiana Supreme Court will soon have an opportunity to decide which view of Meehan and the Indiana sufficiency standard is correct.
Public intoxication In response to Moore v. State, 949 N.E.2d 343 (Ind. 2011), the public intoxication statute was amended in 2012 to require beyond intoxication in a public place that the defendant: (1) endangers the person’s life; (2) endangers the life of another person; (3) breaches the peace or is in imminent danger of breaching the peace; or (4) harasses, annoys, or alarms another person.
Ind. Code § 7.1-5-1-3(a). The new language has been the basis for several appeals, many of which have been successful. The broadest and most significant challenge is pending; in September, the Indiana Supreme Court heard oral argument to decide whether the term “annoying” in the public intoxication statute is void for vagueness, as the Court of Appeals had held in Morgan v. State, 4 N.E.3d 751 (Ind. Ct. App. 2014), vacated. During July and August, the Court of Appeals decided three more public intoxication cases. Brown v. State, 12 N.E.3d 952 (Ind. Ct. App. 2014), trans. pending, seems like another likely transfer grant. The trial court based its decision on a breach of peace
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under (a)(3), which the Court of Appeals found improper because Brown “did not demonstrate violence or the threat of violence.” Id. at 954. Nevertheless, the Court of Appeals upheld a conviction under (a)(4) because the intoxicated defendant “walked directly into a woman on the street, and she began yelling at him immediately.” Id. The court applied a subjective standard looking to the woman’s specific reaction, which would seem to justify a public intoxication conviction anytime a person has a strong reaction to an intoxicated defendant’s conduct. In Davis v. State, 13 N.E.3d 500 (Ind. Ct. App. 2014), the Court of Appeals reiterated that the “endanger” language of (a)(1) and (a)(2) requires “some action by the defendant constituting endangerment of the life of the defendant or another person. ... Were it otherwise, citizens could be convicted of possible, future conduct.” Id. at 503. There, Davis tripped and stumbled as he walked to meet police where they parked within an apartment complex. Because there was no evidence Davis “went anywhere near the busy, dangerous roads outside the apartment complex,” the court found insufficient evidence of endangerment and reversed his conviction. Id. at 504. Finally, in Milam v. State, 14 N.E.3d 879 (Ind. Ct. App. 2014), the court found no violation of any of the four sections of the statute. In that case, an officer noticed an arm and object “hanging out the passenger’s side window of a car, followed by the sound of shattering glass.” Id. at 880. An argument ensued during which a police officer described Milam, who smelled of alcohol and was slurring his speech, as loud, boisterous and uncooperative. Id. The trial court declined to determine who threw the bottle, and the Court of Appeals
found no evidence that another passenger in the vehicle was annoyed by Milam’s comments or that the officer “felt threatened in any way” by them. Id. at 882.
Trial in absentia for deployed soldier Lawyers should be considerate of opposing counsel, witnesses and the trial court in filing timely motions for continuance. The defense lawyer in Calvert v. State, 14 N.E.3d 818 (Ind. Ct. App. 2014), failed on that score, filing three separate motions for continuance just one or three days before a trial or hearing, which created “an undue hardship” for the State’s police officer witness. Id. at 820. Nevertheless, Calvert was deployed in Afghanistan. He “had a constitutional right to be present at this trial, but he was bound by his U.S. Army Orders for deployment overseas, which compelled him to be absent from the trial.” Id. at 822. Therefore, the trial court should have granted his motion for continuance and erred by trying him in absentia. Id.
Discharging a juror after deliberations have begun may only occur in the most extreme situations where it can be shown that the removal of the juror (1) is necessary for the integrity of the process, (2) does not prejudice the deliberations of the rest of the panel, and (3) does not impair the party’s right to a trial by jury.
Id. at 316. In Wright, the discharged juror simply “voted for acquittal based on his determination the victim was not credible, and he would not change his mind” – behavior that does not fall within any of the three categories. Id. at 320. 1. Although the vast majority of recent criminal opinions from the Indiana Supreme Court have been unanimous, Erkins, like Smith v. State, 8 N.E.3d 668 (Ind. 2014), which was decided earlier this year, divided the three newest justices and the two more senior justices who again dissented in favor of a criminal defendant. 2. See, e.g., Joel M. Schumm, “The Disappearing Jury Trial in Indiana: Some Thoughts (and Stats) on the Past Five Years,” The Indiana Law Blog (Dec. 18, 2012, 9:17 a.m.), http://indianalawblog.com/archives/ 2012/12/ind_courts_the_36.html.
Replacing a deliberating juror Although there are relatively few jury trials in Indiana each year,2 each presents numerous opportunities for reversible error, from selecting the jury, to a variety of rulings or counsel’s remarks during the trial, to jury instructions and conduct of the deliberating jurors. Wright v. State, 12 N.E.3d 314 (Ind. Ct. App. 2014), is the most recent case where a trial court failed to heed the Indiana Supreme Court’s requirements in removing a deliberating juror of creating a “carefully developed record as to the grounds for removal” as well as providing an instruction “that removal in no way reflected approval or disapproval of the views expressed by the [dismissed] juror.” Id. at 316, 320.
Update your addresses email & postal online at www.inbar.org RES GESTÆ • NOVEMBER 2014
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CLASSIFIEDS Business supplies for a productive, efficient office he State Bar has partnered with Office360, one of the largest, fastest-growing, independently owned office products suppliers in the country. Not only does Office360 provide competitive pricing on top supplies, but it also offers free, nextday delivery with no minimum order requirement – anywhere in the continental United States!
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RES GESTÆ • NOVEMBER 2014
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RES GESTÆ • NOVEMBER 2014
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By Kris Costa Sakelaris
Access to justice: the Hammond Legal Aid Clinic
n Nov. 1, the Hammond Legal Aid Clinic celebrated its 10th anniversary and now has provided legal services to more than 3,500 Hammond residents since it opened its doors. These services would have been unavailable to them had the Clinic not had the continued support of Mayor Thomas M. McDermott Jr. The establishment of the Clinic was one of the mayor’s first projects upon his election in 2004, and he continues to support financially the efforts of this now independent, 501(c)(3) nonprofit agency. He was inspired to start the Clinic by his own moving experience working as an extern for a legal clinic while attending the University of Notre Dame Law School. Mayor McDermott witnessed firsthand both in law school and in private practice the extreme disadvantage that people experienced when they were unable to afford representation in court. As with many of his initiatives as mayor, giving Hammond residents access to legal representation was a quality-of-life issue for him. Because of his experiences as a lawyer, Mayor McDermott, perhaps better than most mayors in Lake County, understands the unmet needs of economically challenged people seeking legal assistance. I have to admit that when he first approached me about creating a clinic I hesitated, but once I committed I never looked back and can honestly say these past 10 years have been far more rewarding than I ever imagined. Despite the best efforts of the Hammond Legal Aid Clinic and other pro bono service providers, there is still an extremely large gap between the needs of low-income residents and available free legal assistance. The current state of the local and national economy has continued to press people to their limits financially. While federal aid for legal assistance agencies continues to be cut, the need for these services remains high. There will always be debate on what programs to fund, but when amortized over the 10+ years that we have been in existence the cost per client is just under $700, a pretty good bang for the buck. Some cases are wrapped up quickly, but others could take Executive Director as long as a year to 18 months. Our clients Hammond could never touch those services with Legal Aid Clinic a private lawyer for that dollar amount. Hammond, Ind. While the last year found the greatest email@example.com legal needs were in the areas of family law, guardianships and landlord-tenant
RES GESTÆ • NOVEMBER 2014
disputes, there has been a substantial rise in problems relating to Medicare benefits, food stamps and elder law issues. We keep hearing that the economic picture is improving, but we have yet to see a slowdown in our numbers. It just seems like we have seen more people on the brink of crisis than ever before. Clothing, shelter and food prices continue to rise, but pay has remained stagnant. Many of our clients are the working poor. They work 40 or more hours a week, and yet their incomes still remain below the federal poverty guidelines. In addition to the two staff attorneys at the Clinic, all lawyers who currently have contracts with the City of Hammond support the Clinic by giving pro bono hours to us. The Clinic is also supported by an externship program with Valparaiso University School of Law and Calumet College Paralegal Program. Each semester law students and paralegal students are given the opportunity to work in the Clinic for school credit. In the 10 years of our existence, the Clinic has mentored more than 75 students who have contributed thousands of hours for the benefit of the residents of the City of Hammond. I have had the opportunity to interact with our former students that have gone on to be successful lawyers and judicial officers. They still keep in touch with the Clinic and have never forgotten the feeling of satisfaction that they received by assisting someone who, but for the Clinic, would have had their legal needs unmet. We have all heard, and I suspect many of us have said, that we went to law school so that we could help people, so that we could make a difference. While I would never doubt the importance of high-stakes, precedent-setting cases, there is something to be said for assisting someone with a simple, straightforward and uncomplicated case. The appreciation of a single parent who can now feed his or her children because you obtained a support order, or the person who will not have to sleep in his or her car because you were able to see that a security deposit was returned in a prompt manner, or the elderly woman who gets her money back after you’ve taken legal action against an unscrupulous contractor … these may be small monetary cases to us, but to them it is everything. Making a difference – it warms your heart and is good food for your soul!
November 2014 edition of Res Gestae, the journal of the Indiana State Bar Association