Indiana State Bar Association Young Lawyers Section
Chair’s Message: Practicing law before World War II My conversation with 98-year-old past YLS chair, Bruce H. Johnson By Michael J. Jasaitis
fter being named a defendant in a lawsuit, imagine that your client has asked you to provide the status on the service of other defendants and requested that you pull each case that the plaintiff is named as a defendant in your county, including the attorney of record in each case. Moreover, your client wants you to research the application of an affirmative defense, both within the state in which you practice and in other states, in the event that it’s an issue of first impression, and locate a potential third-party defendant in order to perfect service for future pleadings. As you read this hypothetical situation, I would think that you have already formulated a plan to accomplish your client’s wishes within a reasonably short amount of time.
Now imagine accomplishing these types of requests without access to an online docket, e-discussion lists, legal research websites such as Lexis, Westlaw or Casemaker, and the Internet (including social networking sites). Certainly one of the more experienced attorneys in your area could assist you as he/she could remember life before those innovations. But to take it a step further, consider not having a word processor (much less a computer), fax machine, a touch or rotary telephone (including a cell phone), liquid paper and a Xerox machine. Could you still satisfy your client’s objectives? Such was the life for Bruce H. Johnson, 98, the oldest living past chair of the Young Lawyers Section with whom I had the pleasure of chatting with one afternoon.
He served as YLS chair during 1946-1947, just 13 years after the section was established. His accomplishments could take up the whole of this publication, so let me share with you a few of the highlights of Johnson’s accolades. After graduating from high school in 1929 at the age of 16, Johnson enrolled at Butler University, earning his B.A. in 1933. He then attended I.U. Maurer School of Law (a classmate of James Thornburg of the firm Barnes & Thornburg), graduating with his J.D. and passing the bar on a 106-degree day (without air conditioning, of course) in 1936. Yes, Johnson practiced law before World War II had begun and before the advent of computers, color TV, microwave oven, Frisbee, credit cards, diet soda, McDonald’s and the ballpoint pen. So, the next time you get frustrated
with your IT director because your Internet and e-mail are down, even if for a short time, consider Johnson’s experience as a young lawyer and maybe your stress level will adequately decrease. In February 1937, Johnson started his legal career at the firm Olive & McCurdy making just $125/month. During his first year as a practicing attorney, he actually hitchhiked more than 50 miles each way every weekend to court his future wife, Francis, until he purchased a 1932 Studebaker Convertible for $35. At that time, gas prices were 10 cents a gallon. Johnson and his wife later had two children, Judy and Gregory. In 1946, Johnson became chair of the Indiana State Bar’s Young Lawyers Section, leading the state’s new and young lawyers until the latter part of 1947. After
practicing in Indiana for a little more than 10 years, Johnson took his talents to D.C., where he provided interpretative legal opinions in the tax arena for the Bureau of Internal Revenue. In 1951, he moved to Oklahoma City to join a firm that started before Oklahoma’s statehood (1907), focusing on taxation in what is now known as Crowe Dunlevy. He was active in the American Bar Association, serving as chairman of the Taxation Section’s National Resources Committee, later serving as chair of the entire tax section from 1963-66. There is even a portion of the Oklahoma Tax Code drafted by Johnson that still remains on the books. Since retiring from his full-time practice, Johnson is listed ‘as of counsel’ to Crowe Dunlevy to this day. (continued on page 2)
Social media in the workplace BY justin walton
ocial media platforms (to include Facebook, Twitter and LinkedIn) have become mainstays in today’s business environment. Social media creates opportunities to promote products, recruit employees and monitor employee performance. Public information posted online can also be a source of free discovery in litigation as plaintiffs may be compelled to produce public postings through formal discovery. See E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (requiring production of employees’ social net-
working site in Title VII action alleging sexual harassment). Potential Risks Employers can lawfully use information obtained from an online profile as a basis for an adverse employment action. However, used improperly, an employer’s reliance on social media can lead to potential liability. For example, accessing information from passwordprotected sites or around certain privacy settings may give rise to a claim for invasion of privacy or violation of the Federal Stored
Communications Act (“FSCA”). See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 883-84 (9th Cir. 2002) (accessing online profile when the user has taken advantage of certain privacy settings resulted in an invasion of privacy claim); Pietrylo v. Hillstone Rest. Group, 2009 WL 3128420 (D.N.J. Sept. 25, 2009) (terminating two employees based on their statements made in invitation-only MySpace chat group was a violation of the FSCA). Employees’ “oversharing,” through social media, may also give rise to potential (continued on page 2)
The State Bar’s Young Lawyers Section reaches out to Valparaiso’s Whispering Pines Health Care Center as part of its “Young Lawyers Serving Hoosier Seniors” community service project. Members of the YLS were joined by law students from the Valparaiso University School of Law.
His career and achievements are a testament to his hard work and aptitude. And while Johnson’s success is to be recognized, his willingness to never forget his time as a young lawyer is to be commended. The number of younger attorneys who have been mentored and enriched by Johnson is too great to fathom. He spent nearly two hours on the phone with a complete stranger to shoot the bull, talk about the law and lessons he learned in nearly 100 years of living. And I am a better person as a result. Consistent with the YLS theme of serving seniors during my chairmanship, and in anticipation of our upcoming Golf Scramble honoring all of our past YLS chairs, Johnson
(continued from page 1) lawsuits. The use of this employee information, obtained from social media sites, may create possible liability if the employment decision was based on an employee’s protected class status. In addition, the employer should be cognizant of legislative movement in this area. A growing number of states, including California, Colorado, Connecticut, New York and North Dakota, have enacted “Lifestyle Laws” prohibiting adverse employment actions based on lawful, off-work conduct. See, e.g., Colo. Rev. Stat. § 2434-402.5 (2009). Best Practices Employers should develop policies to minimize risks created by social media. However, employers, unionized or non-unionized, should ensure their policies do not improperly restrict employees from discussing their wages, hours or other working conditions.
is to be recognized. While the practice of law and legal technology are constantly evolving, Johnson imparted that hard work, civility and attitude must remain constant for a satisfying career, which he noted is often lost in such a competitive field. His final piece of advice to young and new lawyers consisted succinctly of six words: “Have a passion for the law.” This is certainly an attribute possessed by Bruce Johnson. A Quick Sidenote: Reverse Mentoring In line with our 2011 public service project theme, “Young Lawyers Serving Hoosier Seniors,” and the State Bar’s Mentor Match program, I would like to suggest you consider a similar concept with a twist - reverse mentoring. So often the focus of mentoring, and rightly so, is on a novice learning from one Recently, the National Labor Relations Board (NLRB) and American Medical Response (AMR) settled a wrongful termination complaint based, in part, on AMR’s social media policy. AMR terminated an employee who posted derogatory comments regarding her supervisor on her personal Facebook page, violating AMR’s policy, which prohibited employees from “making disparaging, discriminatory, or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/ or competitors.” American Med. Response of Conn., NLRB Reg. 34, No. 34-CA-12576 (October 2010). The NLRB alleged the policy violated the National Labor Relations Act (NLRA) by prohibiting discussion of work conditions. This complaint demonstrates that an employer’s social media policy that prevents employees from discussing work conditions may violate the NLRA. The use of social media in the workplace, by both employees and employers,
with experience. With reverse mentoring, new lawyers can perform the same functions with their elder counterparts. The idea behind reverse mentoring is simple: A more senior attorney learns from a younger counterpart. There are many benefits of reverse mentoring programs. For example, more seasoned attorneys can learn how social media works and the value that a law practice can derive from newer forms of technology. Such a concept can bring synergy between emerging attorneys and established lawyers. One may ask: What types of things could I teach an experienced attorney? Without question, the legal technology a young lawyer learns in law school may be even more innovative than the techniques utilized
by lawyers practicing for only a few years. However, other things, which we may take for granted, may be new to older attorneys (without reliance upon staff ). A few lessons could include instruction on how to utilize e-mail programs to perform functions such as sending/receiving electronic correspondence, introduction to legal search engines and legal research programs on the Internet, training on electronic calendaring or practice management systems, and teaching the e-filing process. You may even introduce your reverse mentor to the concept of blogging.
legal world closer together. Before you know it, you may even get a FB or Twitter message from them! Michael J. Jasaitis is an attorney at the Crown Point firm Austgen Kuiper & Associates and serves as the 2010-2011 chair of the Indiana State Bar Association’s Young Lawyers Section. Michael can be reached at mjasaitis@ austgenlaw.com.
I encourage you to seek out a willing participant and be patient. With enough participation, we might bring different generations of the
presents both opportunities and risks for employers. Employers can minimize the inherent risks in using social media by adopting and implementing appropriate policies that are continually updated to take into account the constantly expanding nature of the technology.
ISBA DISTRICT MAP St. Joseph
Jefferson Washington Scott
Dubois Crawford Perry
Justin Walton is an associate at the Indianapolis firm Hoover Hull. He provides guidance to businesses and individuals regarding matters involving employment-related disputes, including employee benefit and employment discrimination claims. You can e-mail Justin at email@example.com.
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YLS achievement award nominations sought Nominations due July 20
he following YLS awards will be presented at the State Bar’s Annual Meeting in French Lick in October. For more information and/or nomination forms, contact the ISBA at 317.639.5465 or 800.266.2581. Nomination forms will also be available as downloadable PDF files at the ISBA website, www.inbar.org.
Outstanding Judge Award The ISBA Young Lawyers Section is accepting nominations for the 2011 Outstanding Judge Award. The criteria for the award are as follows:
1. The nominee provides substantial education or mentoring to young lawyers. 2. The nominee fosters civility among those attorneys who practice before the bench. 3. The nominee epitomizes the core values of our profession - honesty, competence and respect for the judicial system. 4. The nominee has a recognized reputation for providing service to the local community.
Liberty Bell Award The Liberty Bell Award celebrates community service that strengthens our
system of freedom under law. Traditionally this award has been given out to nonlawyers who have rendered outstanding service to their communities in any of the following areas: • promoting a better understanding of our Constitution and the Bill of Rights; • encouraging greater respect for the law and the courts; • stimulating a deeper sense of responsibility so that citizens recognize their duties as well as their rights; • contributing to the effective functioning of our institutions of government;
• fostering a better understanding and appreciation of the rule of law.
a letter explaining why you believe your nominee should be considered for the award.
This is your opportunity to focus on a local community leader who may not receive public recognition of his or her accomplishments.
An attorney qualifies as a young lawyer if he or she is under 36 years of age or has less than six years legal experience. If you prefer that your nomination remain anonymous, please advise, and we will honor your request.
While some nonprofit directors enjoy what appears to be statutory immunity, other Indiana Code sections set out specific expectations for directors of nonprofit entities. The Indiana Nonprofit Corporation Act states that directors must act in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner the director reasonably believes to be in the best interests of the corporation. See Ind. Code §23-17-13-1 et seq. Generally, in making decisions and taking action, a director is permitted to rely on information, opinions, reports or statements (including financial statements and other financial data) if those items were prepared or presented by an officer or employee of the corporation, legal counsel, certified public accountants, a committee of the board of directors or other persons the director reasonably believes are within the person’s professional expertise. However, a director is not acting in good faith if that director acts on information and the
director has knowledge or information that makes such reliance unwarranted. This section goes on to state that a director is not liable for an action taken as a director, or failure to take an action, unless the director has, in a willful or reckless manner, breached or failed to perform the duties of the director’s office.
Outstanding Young Lawyer Award Nominated candidates will exemplify the virtues embodied in the oath required of all Indiana attorneys when admitted to the bar. To nominate a young lawyer, complete the nomination form and include
Send your nominations to: Carissa Long Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 For more information, contact Carissa Long at clong@inbar. org.
Liability of nonprofit boards BY CHARLES C. GAVER
s attorneys, many of us will face issues related to serving as a volunteer director for a not-for-profit corporation in our community. We may also be hired to counsel a nonprofit corporation and advise its directors regarding their obligations. In either case, it is important to understand the statutory obligations, expectations and potential liabilities for nonprofit board members. Indiana law requires that every nonprofit corporation have a board of directors comprised of no less than three individuals. In a forprofit corporation, it is generally understood that the board of directors are expected to be engaged in the business activities and be responsible for the overall running of the corporation. It is also generally understood that volunteer directors are likely to be somewhat less engaged and perhaps less professional in their oversight of a nonprofit entity. As a way to encourage people to be board members for nonprofit companies and in recognition of the fact that these are typically uncompensated
positions, there have been attempts to limit the potential liability these volunteer directors face. We can generally accept that a director will be personally liable for any tort the director commits while acting as a director. However, there is a perception that nonprofit directors are immune from liability for conduct that does not constitute a tort. This may be the result of a particular statute that states that a volunteer director of a taxexempt organization is immune from civil liability arising from the negligent performance of the director’s duties. See Ind. Code §2317-13-1 et seq. This code section goes on to state that, although the director may be protected from liability, the entity the director serves does not enjoy the same immunity. So, even though a director may escape personal liability, the entity may remain liable for the conduct. Other code sections provide specific protections for directors of specific types of organizations.
One other area that can potentially create a problem for nonprofit entities is the issue of related-party transactions. A related-party transaction occurs when the nonprofit entity enters into a contract with a person or another company and one of the directors of the nonprofit has a financial interest in that other company and the director voted to approve the transaction. Indiana law provides that such a transaction is not void or voidable if: (1) the material facts of the relations of the director in question are disclosed and the disinterested directors vote in good faith to authorize the contract; (2) the material facts of the relations of the director in question are disclosed
to the members and the members vote in good faith to authorize the contract; or (3) the contract or transaction was fair to the nonprofit at the time the contract was voted on by the directors or the members. Certain actions are specifically prohibited by statute. For example, a nonprofit corporation is not permitted to make a loan to a director of the corporation. Likewise, the corporation cannot serve as a guarantor for the personal obligations of a director. Additionally, a director may be held personally liable if the director votes for or allows a distribution and the distribution exceeds the amounts permitted by statute or by the entity’s articles of incorporation. Additionally, if the nonprofit is a trust or a private foundation, the directors may be held to higher standards and have more stringent responsibilities. So, what should we take away from all of this? If we (continued on page 4)
The importance of the standard of review
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BY JEREMY KRIDEL
n Dr. Stephen R. Covey’s top-selling book, The 7 Habits for Highly Effective People, he suggests that we “begin with the end in mind.” Do you begin each case with a clear vision of your desired outcome? You can if you conduct your case by planning for an appeal—and understanding and working within the standard of review can be crucial to a successful appeal, whether you represent the appellant or the appellee.
or a determination or modification of child support, the trial court’s decision will be reviewed to determine whether 1) the trial court’s decision is unsupported by the evidence and logical inferences most favorable to the trial court’s decision or 2) the trial court has made a legal error. The appellate court will not reassess the trial court’s determinations on the value of evidence or the credibility of witnesses.
The standard of review is the approach a court must adopt when reviewing an appeal. Different standards of review apply to different procedural postures and types of decisions, whether those decisions come from a trial court or administrative agency.
Two recent cases show the standard of review at work. In Smith v. Smith, 938 N.E.2d 857 (Ind. Ct. App. 2010), the Court of Appeals reversed the trial court when it allocated more than the net assets of the marital estate to the wife, leaving the husband with an obligation to pay the wife. Even though there was evidence that the husband had used funds from an IRA without his wife’s agreement, the imbalance in the division of assets constituted impermissible maintenance
Many standards of review take into account the distance of a reviewing court from the testimony and circumstances of the case. For example, in an appeal that challenges the division of marital assets
because the trial court never entered a finding that the husband dissipated assets— that is, the order did not show that the court had properly weighed and evaluated the evidence that might support its judgment. In Reinhart v. Reinhart, 938 N.E.2d 788 (Ind. Ct. App. 2010), the Court of Appeals affirmed a trial court when a father claimed that the court improperly denied his motion to modify his child support obligations. The Court of Appeals noted that though the ordered child support exceeded the guideline amount by more than 20 percent, the father had agreed to such an arrangement in a pre-dissolution settlement and had presented neither evidence nor argument of a substantial and continuing change of circumstances warranting the requested modification. Where does this leave you, the practitioner? Begin with the end in mind—know
the relief you seek or seek to avoid, and understand the standard of review behind the court’s decision on that issue in the applicable procedural posture. Identify the evidence necessary to establish each element of your claim or defense, figure out how to get the evidence admitted, and know what happens if it is not admitted. Finally, guide the court to weigh the evidence in your favor or reach a particular finding to get the outcome you seek. If you don’t, the reviewing court may not fill in the gaps for you. Remember—you are entitled to a fair trial, not a perfect one. Jeremy Kridel is a Judicial Law Clerk for the Honorable L. Mark Bailey of the Indiana Court of Appeals. Jeremy can be reached via e-mail at jkridel@gmail. com. *The opinions expressed in this article are solely those of the author.
are defending a director of a nonprofit who is being sued personally as the result of some action taken in his or her capacity as a director, take full advantage of the statutory immunity available. But, if we are advising a board of a nonprofit entity on how to conduct dayto-day business, strongly suggest that they follow good business practices and adhere to the principles of acting in good faith and following the duty of loyalty as set out in the Indiana Nonprofit Corporation Act. Charles “Chip” Gaver is an associate with the South Bend firm Leone Halpin. Chip can be contacted at cgaver@ leonehalpin.com.
YLS offers two scholarships to ISBA Annual Meeting
he Young Lawyers Section is offering two scholarships to this year’s ISBA Annual Meeting October 19-21 at the French Lick Resort & Casino. Energize your practice and learn new tools to deal with the most pressing legal, technological and ethical issues facing young lawyers today. For more information about this conference, please visit annualmeeting.inbar.org. The scholarships will cover the full conference registration fee, the Awards Luncheon, the Assembly Luncheon, the President’s Dinner and one night at the French Lick Resort. To qualify as a scholarship recipient, you must be a member of the Young Lawyers Section and have less than five years
of experience as a practicing attorney. To apply, please e-mail your resume and cover letter to Carissa Long, clong@inbar. org, or fax to 317.266.2588, no later than Friday, Sept. 9. Please note: Your cover letter should include the following information: 1. years of experience as a practicing attorney; 2. why you would like to attend the conference; 3. what you hope to gain from the conference; and 4. why you should be a recipient of the scholarship. Don’t miss this great opportunity to network and earn 20+ CLE hours!
YLS, law students serve seniors in Northwest Indiana BY BENJAMIN D. FRYMAN
n March, Michael J. Jasaitis, chair of the ISBA Young Lawyers Section and vice president of the Lake County Bar Association, held the bimonthly YLS council meeting at the Valparaiso University School of Law. In conjunction with the meeting, members of the YLS teamed up with 18 law students to take part in the second “Young Lawyers Serving Hoosier Seniors” community service project at Whispering Pines Health Care Center in Valparaiso. The group of volunteers spent their afternoon washing wheelchairs, cleaning windows, polishing and staining furniture, and even painting rooms at the facility. “This was an incredible opportunity to team up with the Valparaiso University School of Law and their law students to serve their nearby community and the seniors at Whispering Pines,” Jasaitis said. “Not only did
this provide an occasion for us to volunteer for this philanthropic event, it gave our young lawyers the ability to connect law students to the ISBA, as well as acquaint them with one of our most important missions, serving others, even outside of the legal landscape.” The project’s participants appreciated the gratitude shown by the staff and residents at Whispering Pines before the work was even completed. Several residents thanked the group as they worked, and others smiled and waved through their windows at the workers. Throughout the afternoon staff members made sure the group had adequate cleaning and painting supplies. “For days I had nurses coming up to ask me what happened and how we got so many volunteers,” said Eddie Guess, maintenance director
Thanks to our 2011 Judicial Reception sponsors!
at Whispering Pines Health Care Center. “All the jobs that the young lawyers did take countless hours off my already stressed shoulders, and I am grateful for the help.”
JW Marriott Indianapolis, April 27
As chairman, Jasaitis has made a goal of organizing service projects for senior citizens across the state. In January, attorneys and students from Indiana University School of LawIndianapolis tackled similar work in the capital city. As Jasaitis has pointed out, this was a great opportunity for members of the Indiana State Bar to serve the local community.
Baker & Daniels Barnes & Thornburg Ice Miller Kenneth J. Allen & Associates Stuart & Branigin Taft Stettinius & Hollister Unterberg & Associates Valparaiso University School of Law
Benjamin D. Fryman is an attorney at the Valparaiso firm Schwerd Fryman & Torrenga and chair of the Lake County Bar Association’s Young Lawyers Section. Ben can be reached at bdf@sftlawyers. com.
Hosted by the ISBA Young Lawyers Section
Bleecker Brodey & Andrews Campbell Kyle Proffitt Cline King & King Defense Trial Counsel of Indiana Eynon Law Group Feiwell Hannoy Frost Brown Todd Kightlinger & Gray Lewis & Kappes Lewis Wagner Plews Shadley Racher & Braun
YLS Chair Michael J. Jasaitis applies WD-40 to wheelchairs at Whispering Pines Health Care Center as part of a daylong service project.
YLS Council member Benjamin D. Fryman washes windows outside at a nursing home facility as part of the “Young Lawyers Serving Hoosier Seniors” service project.
Bamberger Foreman Oswald & Hahn Bingham McHale CourtCall Hall Render Killian Heath & Lyman Hawk Haynie Kammeyer & Chickedantz Hoover Hull Hume Smith Geddes Green & Simmons Miller Meyer Smith & Wade Austgen Kuiper & Associates Bose McKinney & Evans Bowers Harrison Curtis E. Shirley Doyle Legal Corporation Hawkins Law Hodges & Davis Hopper Blackwell James H. Voyles Kiley Harker & Certain Mattox & Wilson Rubin & Levin Sargent & Meier The Mediation Group West, a Thomson Reuters business
Members of the Young Lawyers Section Council host the annual Judicial Reception, April 27, 2011, at the new JW Marriott in Indianapolis. Back row from left to right: Chasity Q. Thompson, Michael E. Tolbert, Reynold T. Berry, Andrea Ciobanu, David Lynch, Casey C. Kannenberg, Matthew Kelsey, and Matthew J. Light. Front row from left to right: YLS Chair Michael J. Jasaitis and ISBA President and past YLS Chair Jeffry A. Lind.
Anthony M. Rose firstname.lastname@example.org
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Young Lawyers Section Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204
ISBA - YLS Calendar & Conferences May 21
YLS Council Meeting | Fishers
YLS Golf Outing | Indianapolis
Solo & Small Firm Conference | French Lick
YLS Joint Meeting w/ Chicago Bar Association
ABA Annual Meeting | Toronto, Canada
YLS Council Meeting | Indianapolis
ISBA Annual Meeting | French Lick
PRE-SORTED STANDARD U.S. Postage PAID Indianapolis, IN Permit No. 1142
Indiana State Bar Association Young Lawyers Section
Young Lawyers Section 2010 - 2011 OFFICERS Chair Michael J. Jasaitis, Crown Point firstname.lastname@example.org Chair-Elect Jason A. Cichowicz, South Bend email@example.com Secretary/Treasurer Reynold T. Berry, Indianapolis firstname.lastname@example.org DISTRICT REPRESENTATIVES District 1 Ryan R. Kutansky, Highland email@example.com District 2 Michael E. Tolbert, Merrillville firstname.lastname@example.org District 3 Anthony M. Rose, South Bend email@example.com District 4 Alisa J. Pearson, Fort Wayne firstname.lastname@example.org
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MARION COUNTY BAR LIAISON
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ISBA Young Lawyers Section Spring 2001 newsletter