res gestae - may 2015

May 2015 Vol. 58, No. 9

INDIANA BARADMISSION CEREMONY

EDITORSusan J. [email protected]

GRAPHIC DESIGNER & PHOTOGRAPHERVincent [email protected]

ADVERTISINGChauncey L. Lipscomb

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Joseph M. PellicciottiWilliam A. [email protected]

5 PRESIDENT’S PERSPECTIVEJeff R. Hawkins, Sullivan, 2014-2015

19 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

21 REAL ESTATE CORNERISBA Probate, Trust & Real Property Section

35 RECENT DECISIONS 1/15Maggie L. Smith and Abigail T. Rom, Indianapolis

39 CRIMINAL JUSTICE NOTES 1/15Jack Kenney, Indianapolis

46 FAIR COMMENTAmy R. Wheatley and Larry R. Church, New Albany

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 forpossible publication in Res Gestae. Article guidelines can be obtained by calling 800/266-2581 or visiting www.inbar.org. Res Gestae’s printer, Print Directions, Inc., is an Indiana-certified Woman Business Enterprise.

©2015 by the Indiana State Bar Association. All rights reserved. Reproduction by any method in whole or in part without permission is prohibited. Opinions expressed by bylined articles are those of the authors and not necessarily those of the ISBA or its members. Publication of advertisements is not an implied or direct endorsement of any product or service offered.

The Journal of the Indiana State Bar Association

RES GESTÆMay 2015 � Vol. 58, No. 9

D E PA R T M E N T S7 ANNUAL DAY OF SERVICE

19 PRO BONO REPORTING

RES GESTÆ • MAY 2015 3

F E AT U R E S

8 A WILLINGNESS TO WORK TOGETHER IS EVANSVILLE’S STORYBy Bill Brooks, Indianapolis

12 ACHIEVEMENT AWARD NOMINATIONS SOUGHT

25 BECOME AN INDIANA REGISTERED PARALEGAL

32 MEETING THE LEGAL NEEDS OF COLLEGE STUDENTSBy Kelly A. Mroz, University Park, Pa.

23 ESSAY CONTEST 27 MARCH AGAINST HUNGER 29 FIT TO PRACTICE

Cover photo by Vincent Morretino of the Indiana bar admission ceremony conducted May 19 in the Indiana Roof Ballroom in downtown Indianapolis

46 A CONVERSATION

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In a story attributed to Abraham Lincoln’scircuit riding days, the judge reportedlyasked Lincoln one afternoon if he had

heard Abe make the opposite argument inanother case that morning. The future presi-dent reportedly answered something like,“Yes, your honor, but I was wrong this morning.”

Law schools train students to argue bothsides of an issue and propose alternative solu-tions to complex problems. This problem-solving skill distinguishes lawyers from manyother professions because law schools train usto maintain objectivity and practice creativitywhen everyone else believes the sky is falling.

I often introduce estate-planning clientsto my services initially by saying that I am a professional pessimist whose job is to con-ceive the worst possible future, plan to makeit better, and hope that none of the terriblethings happen. I also tell people that I rankmy preference of problems as illustrated inthe diagram above.

These days, the bench and bar face prob-lem proliferation within that least favorite category – the problems that we must solve.Here are a few of those frustrating quandaries:

• How can law schools afford to offer premium legal education to a contracting law student market?

• How can small or impoverished commu-nities access justice and conduct essentialtransactional business if young lawyers

perceive that they cannot afford to live andwork within those communities?

• If young lawyers do not live and workwithin a small or impoverished community,who will run for prosecutor and judge or seekappointments to defend people accused ofcrimes?

• If wholly unregulated, Internet-basedlegal service providers can brazenly market anincreasingly broad array of legal services with-out fear of prosecution for the unauthorizedpractice of law, how can anyone but the mostskilled trial lawyers pay mortgages, studentloans and bar association dues?

• How can we advocate legitimately forequal rights and access to justice for disabled,underrepresented and disenfranchised peopleif we do not represent and enfranchise thesame kinds of disadvantaged members of our own profession?

• What lawpractice skillsshould we teachnew lawyers todayso that their lawpractices willremain relevantand sustainable inthe next decade?

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

Indianapolis, IN 46204800/266-2581 • 317/266-2588 fax

http://www.inbar.org

OFFICERSPresident 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, RochesterPresident

BOARD OF GOVERNORS1st District Scott E. Yahne, Munster

2nd District Robyn M. Rucker, Valparaiso

3rd District Robert L. Jones Jr., Notre Dame

4th District Martin E. Seifert, Fort Wayne

5th District Candace D. Armstrong, Brook

6th District Patrick J. Olmstead, Greenwood

7th District Ann Z. Knotek, Brownsburg

8th District Hon. Leslie C. Shively, Evansville

9th District Crystal G. Rowe, New Albany

10th District Wilford A. Hahn, Huntington

11th District Tonya J. Bond, Indianapolis

11th District Terry W. Tolliver, Indianapolis

11th District Andrew Z. Soshnick, Indianapolis

At-Large District Rafael A. Sanchez, Indianapolis

At-Large District Sonia C. Das, Indianapolis

Past President James Dimos, Indianapolis

House of Delegates Andi M. Metzel, Indianapolis,Chair

House of Delegates Hon. Thomas J. Felts, Fort Wayne,Chair-Elect

Young Lawyers Matthew J. Light, Indianapolis,Section Chair

STAFFExecutive Director

Thomas A. Pyrz • [email protected]

Administrative AssistantBarbara M. Whaley • [email protected]

Associate Executive DirectorSusan T. Jacobs • [email protected]

Administrative AssistantJulie A. Gott • [email protected]

Director of CommunicationsSusan J. Ferrer • [email protected]

Director of Public Relations & Social MediaCarissa D. Long • [email protected]

Graphic Designer & PhotographerVincent Morretino • [email protected]

Legislative CounselPaje E. Felts • [email protected]

Director of Special ProjectsSection & Committee Liaison

Maryann O. Williams • [email protected]

Administrative AssistantBarbara L. Mann • [email protected]

Local & Specialty Bar LiaisonCatheryne E. Pully • [email protected]

Administrative AssistantKimberly D. Latimore • [email protected]

Director of CLEChristina L. Fisher • [email protected]

Assistant to Director of CLEKassandra Adams • [email protected]

Section & Committee LiaisonMelanie Zoeller • [email protected]

Director of Meetings & EventsAshley W. Higgins • [email protected]

Membership Records & Technology CoordinatorKevin M. Mohl • [email protected]

Bookkeeper & Convention RegistrarSherry Allan • [email protected]

ReceptionistChauncey L. Lipscomb • [email protected] RES GESTÆ • MAY 2015 5

PRESIDENT’S PERSPECTIVEJEFF R. HAWKINS

[email protected]

Problems? Become part of the solution!

(continued on p. 7)

Unless, I am hired to solve someone else’s problem

Least Favorite Problem: The one that I must solve.

Favorite Problem:

The one that is not mine.

Next Favorite Problem:

The one accompanied by a solution.

Favorite Problem:The one that is not mine

Next Favorite Problem:The one accompanied by a solution

Least Favorite Problem:The one that I must solve

Unless I am hired to solvesomeone else’s problem

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• Do our bar exams measureskills that paying clients will wantor need in the next decade?

• Should we regulate lawyersmore strictly than unregulated nonlawyers that provide competingservices with impunity (e.g., courte-filing, will and trust drafting,business entity incorporation andorganization, divorce and familylaw advice and representation,etc.)?

• What is the practice of law(e.g., court e-filing, will and trustdrafting, business entity incorpora-tion and organization, divorce andfamily law advice and representa-tion, etc.)?

• What will be the practice of law 10 years from now?

• Which of us can afford topractice law 10 years from now?

The Indiana State BarAssociation, the Indiana SupremeCourt and Indiana’s accredited lawschools are tackling many of thesequestions in the upcoming IndianaLegal Education Conclave at theI.U. Robert H. McKinney School of Law June 26-27. Indiana ChiefJustice Loretta Rush and I are asking a carefully selected cross-section of bench, bar and academicrepresentatives to engage some ofthese questions intensively duringthe two-day program and recom-mend next steps toward solutions. I encourage all lawyers, judges andeducators to stay tuned for the con-clave report and get ready to workon solutions when it emerges laterthis year.

There are plenty of problemsfor all of us to tackle, but I think the11,000+ members of our ISBA cansolve many of the biggest problems.I invite all ISBA members to shareownership of the problems andsolutions. I also welcome thoselawyers, judges and educators who are not ISBA members to jointhe ISBA and become part of thesolution. �

ASSO

CIATIO

N NEW

SPRESIDENT’S PERSPECTIVEcontinued from page 5


ISBA’s Annual Day of Service

Thank you for making the 2014 Annual Day of Service a huge success! Nearly 150 judges, attorneys, law students,

staff and family members volunteered, which meant we doubled, if not tripled, participation from 2013. It’s now time to Save the Date for the 2015 Annual Day of Service, so markyour calendars!

WHEN: Saturday, Sept. 19

WHO: Attorneys and judges from local bar associationsthroughout the state of Indiana, along with their families and staff

WHAT: Attorneys and judges from across the state will cometogether in their respective counties to engage in hands-oncommunity service. From cleaning up local neighborhoods tovolunteering at local shelters, attorneys and judges will have theopportunity to work together to make their communities better.

Activities may include volunteering at a local soup kitchenor homeless shelter; providing painting or cleanup services for local neighborhoods in need; or assisting the Red Cross,Salvation Army or Habitat for Humanity.

WHERE: Your local communities! District liaisons will workwith local bars to coordinate efforts in every county for theAnnual Day of Service.

WHY: The focus of the Annual Day of Service is hands-on community service, with the goal to inspire attorneys to gettheir hands dirty in helping build and clean up their local parks,adopting streets, building homes; unifying members of state,local and specialty bar associations; and highlighting the “good works” of the legal community as a whole.

The goal is to make this event bigger and bigger every year.The ISBA Service Committee helped local bar associations coor-dinate 11 projects involving 11 counties, including Allen, Lake,LaPorte, Marion, Morgan, Newton/Jasper/Benton, St. Joseph,Steuben and Vanderburgh counties, which almost doubledinvolvement from 2013. Add your county to the list and getinvolved today!

For more information or to add your county & event to theAnnual Day of Service project list, you may contact Jaime Oss,Annual Day of Service director, at [email protected] Catheryne Pully at the State Bar, [email protected]. �

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Alittle more than threehours southwest of thestate capital, Indiana’s

third-largest city hugs the OhioRiver. It’s a place one of its biggestboosters calls “incredibly boring –and incredibly stable – for the last30 to 40 years.”

So why is Evansville preparingto host a new medical school asso-ciated with Indiana University andthree other schools? And build anew convention hotel? And howhas Evansville pulled off creativereuses of some of its oldest build-ings? And how is it building protected bike lanes?

The answers to those questionswere revealed to members of theState Bar’s Leadership Develop-ment Academy March 12-13 whenthey visited this dynamic Indianacity. Despite a near-constant drizzle, the Pocket City’s vibrancy showed through.

“We don’t just talk about it.We get things done,” said LynnMiller-Pease, executive director of Leadership Evansville, when she took part in a panel discussioninvolving five community activists.

Evansville’s challenges aregreat, Miller-Pease said, “but Idon’t know of anyplace else wherepeople are so willing to work witheach other.”

Miller-Pease used a term bothfamiliar and near & dear to eachacademy class: servant leadership.She said that for nearly fourdecades her organization hasworked to help people discoverwhat their assets are. “And after 38 years, what do you do with allthose servant leaders?” The answer,she said, was a community-widevisioning process in partnershipwith city government and commu-nity organizations – finding theright path to get the work done.

“We did not start with ‘what’sthe problem?’” Miller-Pease said.“We started with ‘what’s positive,what’s possible?

“We turned the questionaround: ‘What can we do next?How can we use these talented people to help us get there?’”

Joshua Armstrong, director of Downtown Alliance, saidEvansville’s relatively small sizeworks in its favor. “This is a com-

munity where an individual can gettogether with two or three othersand make a difference,” he said.

Other panelists contributing tothe stimulating session were AnneMcKim, executive director of theArts Council of SouthwesternIndiana; Kelley Coures, executivedirector of the city’s Department of Metropolitan Development; and Scott Wylie, director of theVanderburgh CommunityFoundation.

Wylie encouraged the lawyersto not only become philanthropists,whether through time or money,but also to encourage their clientsto consider philanthropy. He saidpeople may want to give back, butthey don’t know how. “When weare [giving back] with our time and talent,” he said, “we’re sendingcredible messages of communityand philanthropy.”

In a separate session, EvansvilleMayor Lloyd Winnecke – a formertelevision news reporter andanchorman – described a leader-ship style that seemed to mesh withthe message from the earlier panel.“I ask for help,” Winnecke said,describing the community-wideeffort known as “VOICE.” He saidthe effort involved 32 extremelywell-attended community meetingsthat sought to identify key areas forEvansville’s future. “We had peoplegetting engaged at very high levels,”he said. “We had great ideas, butthe real key was reaching out. We got a lot of people involved.”

After a rolling tour of some ofthe downtown’s targeted buildingsand areas, the LDA class landed atthe headquarters of Berry Plastics,an Evansville success story of globalsignificance. Founded in 1967 bythree men with one injection mold-ing machine, Berry Plastics is now acompany with $5 billion in annualrevenue employing 16,000 people at almost 100 manufacturing sitesaround the world – including the

LEADERSH

IP DEVELOPM

ENT ACADEM

YA willingness to work together is Evansville’s story

By Bill Brooks

8 RES GESTÆ • MAY 2015

DOING PRO BONOJust Got Easier

www.indianalegalanswers.orgAnswer Online. Anytime.

How do I apply for a hardship

or probationary license?

Can my mom be made power of attorney if

my sister now has the power of attorney?

How do we do this?

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large facility near downtownEvansville. Berry Plastics produces35,000 different products for morethan 13,000 different customers.

The tour included Berry’s own in-house division of “creativetypes,” Blue Clover Studios. Theclass wandered through a modelgrocery, a hair salon and a house –all stocked with a seemingly endlessarray of Berry products holdingsuch goods as coffee, mayonnaise,marinade, anti-freeze, aspirin andchicken. The model garage evenhoused a real, though non-work-ing, Mini Cooper. (Fun fact: BerryPlastics produces 80 percent of theMcDonald’s cups worldwide.)

Next up was a discussioninvolving Chairman and CEOJonathan Rich; Executive VicePresident Jeff Thompson, who for-merly served as in-house counsel;Adam Borgman, senior intellectual

property counsel; and CathyNestrick, deputy general counseland orchestrator of the LDA’s visitto Berry Plastics.

That discussion included suc-cesses and failures in overseas ven-tures, decisions on what and whento patent, the challenges of con-sumer safety (much of Berry’s busi-ness involves medicines), and issuesof environmental responsibility(one of Berry’s latest creations is a thermoplastic cup that is 100-percent recyclable, now beingused by both Dunkin’ Donuts and 7-Eleven).

The difference between win-ning companies and the others,Thompson said, “is people and howeffectively they work together.” Hedescribed the Berry family as “clas-sic Midwest culture: nice folks whoenjoy working with each other. Butpeel the onion back one layer, and

they’re people who are incrediblycompetitive.

“You take a group of peoplewho went to the University ofEvansville, to the University ofSouthern Indiana, to Purdue andRose-Hulman – and they beatHarvard every day, if you have a culture that allows them to succeed.”

Berry’s involvement in thecommunity is deep, but Rich saidthe firm’s commitment wasn’tentirely selfless. With Berry needingto attract talent from all over theworld to come to Evansville, hesaid, “We do it because it’s in ourbest interest to do it.”

Any LDA session wouldn’t becomplete without a face-to-facewith a member of the IndianaSupreme Court. That role was filled


(continued on page 11)

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this session by Justice Mark Massa,who spoke about the honor andresponsibility of being an attorneyand the role the rule of law plays inallowing a free society to function.No matter what field of law isinvolved, he told the class mem-bers, “you’ll be protecting the Ruleof Law that holds it all together.”

Massa also spoke to the impor-tance of honesty. “Be ever mindfulof the oath you have taken,” hesaid. “In a world of obfuscation andspin, who will tell the truth if notlawyers?”

He pointed out that, on anycommittee or task force, thelawyers can be easily identified.“They’re the most focused, mostable to stick to the task.” Relevancy,he said, is what lawyers bring toeverything – by knowing what matters. Massa was joined by hiscolleague, Justice Steven David, a founding LDA Committee mem-ber who has attended every sessionthis year.

The LDA session began with aprogram in the long-dormant OldCourthouse, a historic edifice thatEvansville has struggled for decadesto find a suitable reuse. But it wasalive with activity this one evening,when the Evansville Bar Association(EBA) co-hosted with LDA a recep-tion for former Chief Justice of Indiana Randall T. Shepard, a native of Evansville. The formerchief justice accepted a check for $32,609.42 on behalf of theEvansville Bar Foundation. Thispresentation was the proud finaleof the class project that the LDAinaugural class began three yearsago. The funds will be used by theEvansville Bar Foundation to createand endow a leadership lectureseries in Shepard’s name. In pre-senting the check, LDA inauguralclass member and now LDACommittee member Terry Tolliverrecalled when then Chief JusticeShepard spoke to his class during

the first session in January 2012.The learned chief justice told Class1 that he “remains very teachable,even to this day.” Tolliver told thepacked courtroom in Evansvillethat the lecture series named forShepard would bring influentialspeakers to the Evansville commu-nity to present on topics such as the rule of law, professionalism andleadership. “Think of how manyissues, whether personal, profes-sional or political, could be resolvedsimply based upon a willingness to listen to the other side and ‘beteachable,’” Tolliver remarked.

Standing in a handsomelyrestored courtroom dedicated in hishonor by the EBA, Shepard spokeabout the wonderful heritage ofEvansville attorneys, a list thatincludes John Marshall Harlan, the U.S. Supreme Court justice who cast the lone dissent in Plessy v.Ferguson. Harlan was a Kentuckian,

Shepard noted, but he practiced lawin Evansville and married anEvansville girl.

Evansville lawyers, he added,led the charge to ensure that “eventhe worst people are entitled to afair trial, even those the communityis against.” Those lawyers, Shepardsaid, “inspire us to do great things,”adding praise for the LeadershipDevelopment Academy. “TheIndiana State Bar Association has taken responsibility to ‘build’more lawyers for [our] communi-ties – and it is the LeadershipDevelopment Academy that really matters.” �

Bill Brooks is a media consultant andfreelance writer in Indianapolis, Ind.

EVANSVILLE continued from page 9


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Nominations due Aug. 10

The following awards will bepresented at the State Bar’sAnnual Meeting in French

Lick in October. For more informa-tion and/or nomination forms,contact the ISBA at 317/639-5465or 800/266-2581. Nominationforms are also available as down-loadable PDF files at the ISBA website, www.inbar.org.

CIVILITY AWARDSSponsored by the Litigation Section

The ISBA Litigation Section’sCivility Awards recognize an attor-ney and judge for outstanding civil-ity and professionalism in theirdealings with fellow judges, attor-neys, parties, witnesses and thepublic.

Send your nominations to:

Melanie ZoellerIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactMelanie at [email protected].

GALE M. PHELPS AWARDSponsored by the Family & JuvenileLaw Section

The Gale M. Phelps Award is named in memory of Gale M.Phelps, a former chair of the ISBAFamily & Juvenile Law Section andone of the most active members of the section, who passed away

in 2003. Factors considered in theselection of the recipient reflectGale’s contributions to the familylaw legal community and include:

• Exceptional service to the pro-fession: unsolicited mentoring tonew attorneys, reaching out toother lawyers, and working withattorneys on an individualizedbasis;

• Highest level of competence/improving the profession: review-ing legislation and shaping familylaw policies, contributing to educa-tional seminars, serving in leader-ship positions for legal and nonle-gal organizations;

• Raising the level of profession-alism and civility in domestic rela-tions matters: going beyond theclient’s basic needs, maintainingrespect for the court system and its participants; and

• High moral character and ethical standards


Maryann WilliamsIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactMaryann at [email protected].

RABB EMISON AWARDSSponsored by the DiversityCommittee

The Rabb Emison Awards,named for its first recipient in theindividual category, recognize anindividual and an organization thathave demonstrated a commitmentto promote diversity and/or equali-ty in the legal profession and in themembership of the Indiana StateBar Association.


Whitney RuffinIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactWhitney at [email protected].

OUTSTANDING JUDGE AWARDSponsored by the Young Lawyers Section

The ISBA Young LawyersSection is accepting nominationsfor this year’s Outstanding JudgeAward. The criteria for the awardare as follows:

1. The nominee provides sub-stantial education or mentoring to young lawyers.

2. The nominee fosters civilityamong those attorneys who prac-tice before the bench.

3. The nominee epitomizes the core values of our profession –honesty, competence and respectfor the judicial system.

4. The nominee has a recog-nized reputation for providing service to the local community.

Send your nomination to:

Christina FisherIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

The names of those submittingnominations for consideration shallbe kept confidential to avoid anyappearance of impropriety. Onlycurrent judges are eligible for thisaward.

For more information, contactChristina at [email protected].

WOMEN IN THE LAWRECOGNITION AWARDSponsored by the Women in the Law Committee

State Bar members are invitedto nominate an attorney for theWomen in the Law RecognitionAward, which is presented to anindividual who has assisted in theadvancement of women in the legalprofession, served as a role modelor mentor or has influencedwomen to pursue a career in law orfor contributions to the legal pro-fession as a whole or to a particular

ATTEN

TION

Achievement award nominations sought


2015 9

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Registered Indiana MediatorOver 30 Years of Experience

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JOHN ROBERT PANICOMediator • Arbitrator • Fact Finder

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area of practice. The nominee mustbe an attorney licensed in the state.

Those making nominations areencouraged to submit letters ofsupport.




TRAILBLAZER/ABRIENDOCAMINOS AWARDSponsored by the Latino AffairsCommittee

The Latino AffairsCommittee’s Trailblazer/AbriendoCaminos Award recognizes the out-standing achievements, commit-ment and leadership of a lawyerwho has paved the way for theadvancement of other Latino attor-neys and/or the Latino community.This award recipient will personifyexcellence in the profession, espe-cially by his/her steadfast commit-ment, vision, courage and tenacity,which have resulted in substantialand lasting contributions to theLatino legal profession as well asthe broader Latino community.The nominee must be a currentISBA member.




LIBERTY BELL AWARDSponsored by the Young Lawyers Section

The Liberty Bell Award cele-brates community service thatstrengthens our system of freedomunder law. Traditionally this awardhas been presented to nonlawyers

who have rendered outstandingservice to their communities in any of the following areas:

• promoting a better under-standing 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 astheir rights;

• contributing to the effectivefunctioning of our institutions of government;

• fostering a better understand-ing and appreciation of the rule of law.


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This is your opportunity tofocus on a local community leaderwho may not receive public recog-nition of his or her accomplish-ments. To nominate an individual,please submit the nomination formand explain why you feel this per-son deserves the Liberty BellAward.




OUTSTANDING YOUNGLAWYER AWARDSponsored by the Young Lawyers Section

Nominated candidates willexemplify the virtues embodied in the oath required of all Indianaattorneys when admitted to the bar.

To nominate a young lawyer,complete the nomination form andinclude a letter explaining why youbelieve your nominee should beconsidered for the award. An attor-ney qualifies as a young lawyer if heor she is under 36 years of age orhas less than six years of legal expe-rience. If you prefer that your nom-ination remain anonymous, pleaseadvise, and we will honor yourrequest.




AFFILIATE MEMBER AWARDSponsored by the AffiliateMembership Committee

This award recognizes an affiliate member of the IndianaState Bar Association who has con-tributed to the legal profession. The selection committee will giveprimary consideration to nomineeswhose efforts offer evidence of dis-tinctive service to the legal profes-sion in the areas of paralegalism,legal administration, law librarian-ship or court administration.

The selection committee mayalso consider:

• a nominee’s contributions inthe areas of leadership, professionaldevelopment and promotion ofparalegals, legal administrators, lawlibrarians or court administrators;

• commitment to the IndianaState Bar Association; and

• service not only to the legalcommunity, but compassion anddedication to others by involve-ment and volunteer service to thecommunity.


Susan JacobsIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactSusan at [email protected].

DAVID HAMACHER PUBLIC SERVICE AWARDSponsored by the Appellate Practice Section

The ISBA Appellate PracticeSection is soliciting nominationsfor the David Hamacher PublicService Award. Any lawyer or non-lawyer may be nominated. The cri-teria for this award are as follows:high moral character and ethicalstandards; service to the communi-ty; peacemaking qualities; personnot necessarily a lawyer; award notgender specific.

Send a written statementregarding why the nominee shouldbe selected to:



HON. VIOLA TALIAFERROAWARDSponsored by the Committee on Civil Rights of Children

The Committee on Civil Rightsof Children annually honors anindividual who best exemplifiesJudge Taliaferro’s courageous lead-ership in addressing the unmetlegal needs of children and in rais-ing the public’s awareness of theseneeds. Nominations for this awardmay be for an individual who is liv-ing or deceased.




COMMUNITY SERVICEAWARDSponsored by the Service Committee

The Community ServiceAward was established by the ISBAService Committee, a project of thefirst ISBA Leadership DevelopmentAcademy class. The ServiceCommittee was formed by the classwith an interest in advancing thenonlegal service work of lawyers intheir communities and state.Factors considered in the selectionof the recipient reflect the core val-ues the Service Committee wishesto promote and include:

1. exceptional nonlegal servicework in their respective community

AWARDS continued from page 13



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With an eye on saving thousands of dollars, the Indiana State Bar Association has begun processing membership dues online. Via the State Bar’s new website and membership database, dues notices and reminders are automatically sent to your current email address. You can also print your membership card instantly!

You can update your MyISBA pro�le today at www.inbar.org to make sure we have your current email address. Please note: As a member, your online pro�le has already been created for you.Once signed in, you can update your contact information by clicking on “Manage Pro�le” and then “Edit Bio.” You can also access member-exclusive pricing for CLE programs, utilize online discussion forums and more.

If you haven't signed in to the new ISBA website yet, here's what you need: Username - your membership #; Password - inbar1896.

ISBA membership renewal goes online

Receive valuable insight from your peers on our online discussion forums.

Grow your skill set with free & discounted CLE (to include 3 free ethics hours).

Accelerate your career with Casemaker, our free online research tool.

Stay current with ISBA substantive publications, print & electronic.

Network with your bench & bar colleagues at meetings & events.

Save money with discounts on o�ce products, travel & much more.

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INVEST IN YOUR CAREER!

– this does not include pro bonowork, which is recognized sepa-rately;

2. an embodiment of the corevalues of our legal profession;

3. promoting communityinvolvement; and

4. helping in underserved areas– this includes providing service inlower-income areas, youth initia-tives, the elderly and infirm,schools, and similar areas.


Catheryne PullyIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactCatheryne at [email protected].

HENRY HURST JUDICIALASSISTANCE AWARDSponsored by the Federal JudiciaryCommittee

The Federal JudiciaryCommittee is seeking nominationsfrom federal judges, the public,attorneys practicing in Indiana’sfederal courts, and a candidate’speers for the Henry Hurst JudicialAssistance Award, which is namedin memory of Henry Hurst, the firstfederal clerk of the district court of Indiana, who was sworn in onMay 5, 1817, and served the entirestate until 1835. Henry Hurstexemplified the importance of hav-ing highly skilled personnel assist-ing the federal judiciary in order topromote justice and efficiency inthe courts.

This year nominees for theHurst Award shall be from theSouthern District of Indiana andserve as a member of the districtcourt clerk’s office or the districtbankruptcy court clerk’s office, as a staff member to a district court judge or a district bankruptcycourt judge, or as a member of the administrative personnel.


Paje FeltsIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactPaje at [email protected].

Please identify the nominee’sjob title and provide a descriptionof the candidate’s qualifications forthe award. �

AWARDS continued from page 14


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Donate your oldphone to benefitICADV

The ISBA Women in the Law Committee is proud

to join Verizon, IndyCar and theIndianapolis Motor Speedway tosupport Hopeline from Verizon, a month-long initiative to collectused mobile phones, tablets andaccessories (to include chargers and cases) to turn into a significantcash grant for the Indiana CoalitionAgainst Domestic Violence(ICADV). The committee will becollecting your donated devicesthrough June 7. If you’re attendinga meeting at the State Bar’s head-quarters in the next few weeks,please be sure to bring your old,unused mobile devices to donate!Visit www.verizon.com/about/hopeline/get-involved for helpfultips regarding how to erase any dataon your phone before donating.

Drop-off location:Indiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204 �

Call for speakers

The ISBA Health Law Sectionwill be sponsoring its annual

Health Law Symposium on Sept. 11. If you would like to beconsidered as a speaker for a HealthLaw Symposium, please email theinformation below to MaryannWilliams at the ISBA at [email protected]. Submissions for consideration are due no later than July 1.

• Title of Proposal

• Contact Information: name,title, firm/organization, address,city, state, zip code, phone # andemail address for each presenter.

• Audience: short paragraphdescribing the audience for whomyour topic is intended and why thesubject area is of importance.

• Bullet Points: List four to six bullet points that describe thespecific issues you plan to cover.Please note that sessions are onehour in length.

• Level: The session is intendedto be (1) introductory; (2) interme-diate/legal update; or (3) advanced.

• Type of Materials: The ISBAencourages speakers to providepractical takeaways, such as samplecontract language, draft policies orchecklists, as a part of their writtenmaterials. Please indicate what typeof takeaways you anticipate provid-ing.

• Biography: Please attach aresume or curriculum vitae thatincludes a list of previous presenta-tions.

If selected as a speaker, theinformation you provide will beused in the program brochure.Please be sure the spelling is correct and all relevant titles, information about degrees and credentials are included. Selected

speakers will be notified by mid-July.

If you have any questions, contact Maryann Williams [email protected] or 800/266-2581. �

Task force to studyIndiana Tax Court

The Supreme Court has createda seven-member task force

to examine the caseload, resources,staffing, performance and opera-tions of the Indiana Tax Court. The order creating the task forcecan be found at http://tinyurl.com/Tax-Court-Task-Force.

The task force is chaired byIndiana Court of Appeals JudgeJames S. Kirsch. Current Tax CourtJudge Martha B. Wentworth andSenior Judge Thomas G. Fisher are serving as ex officio liaisons.

The task force will provide a written report by March 2016. �

BEN

CH & BAR NEW

S


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In the Indiana Supreme Court

Order AmendingIndiana Rule of ProfessionalConduct 6.7

Under the authority vested in this Court pursuant to

Article 7, Section 4 of the IndianaConstitution providing for theadmission and discipline of attor-neys in this state, Indiana Rule ofProfessional Conduct 6.7 is amend-ed to read as follows (deletionsshown by striking and new textshown by underlining):. . .

Rule 6.7 Pro Bono ReportingRequirement for Reporting ofDirect Pro Bono Legal Services

(a) Reporting Requirement. Toassess the current and future extentof volunteer legal services provideddirectly to individuals of limitedmeans and to encourage suchservices, an attorney must reportAsas part of each the attorney’sannual registration the followinginformation shall be reported:

(1) Pro Bono Hours – no compensa-tion. During the previous calendaryear ending December 31, I havepersonally provided approximately_____ hours of reportable probono legal services for the previouscalendar year ending December 31legal services in Indiana or otherstates directly to individuals reason-ably believed to be of limited meanswithout charge and without any feeexpectation when the services wererendered.

(2) Pro Bono Hours – substantiallyreduced compensation. During theprevious calendar year endingDecember 31, I have personallyprovided approximately _____hours of legal services directly toindividuals reasonably believed tobe of limited means at a charge ofless than 50% of my normal rate

and without expectation of anygreater fee when the services wererendered.

(23) Financial Contribution. Duringthe previous calendar year endingDecember 31, I have either (ai)made monetary contributionsed ofapproximately $ _____ to theIndiana Bar Foundation, to any ofthe local IRC 501(c)(3) pro bonodistricts listed at the IndianaSupreme Court website http://www.in.gov/judiciary/probono/2338.htm, or to a legal service orga-nization located in Indiana that iseligible for fee waiver under I.C. 33-37-3-2(b); or (bii) made an in-kindcontribution of tangible propertyfairly valued at $ _____ to one ormore of the foregoing qualifyinglegal service organizations or probono districts.

(34) Exempt Persons. An attorney isI am exempt from reporting underthis Rule who is exempt from theprovision of pro bono legal servicesbecause he or she (i) I isam cur-rently serving as a member of thejudiciary or judicial staff, (ii) I amisa government lawyer prohibited bystatute, rule, regulation, or agencypolicy from providing legal servicesoutside myhis or her employment,(iii) I amis retired from the practiceof law, or (iv) I maintains inactivestanding with the Clerk of theIndiana Supreme Court.

(b) Definitions.

(1) Reportable pro bono legal ser-vices are those legal services ren-dered directly to or for the benefitof persons reasonably perceived tobe of limited means without chargeor expectation of a fee by the lawyerat the time the service commences.For purposes of this Rule persons oflimited means are individuals orfamilies whose household incomesare up to 200% of the federalpoverty guidelines.

(2) Reportable pro bono legal ser-vices performed in other states by amember of the Indiana Bar arereportable as pro bono hours inIndiana.

(3) Reportable pro bono legal ser-vices do not include legal serviceswritten off as bad debts, and theydo not include services rendered toimprove the law, the legal system,or the legal profession unless solelyaimed at assisting persons of limit-ed means.

(cb) Reporting Required.While theprofessional responsibility to pro-vide pro bono legal services is gov-erned by Rule 6.1, the requirementto report voluntary pro bono ser-vice is governed by this Rule 6.7and creates a mandatory reportingobligation, the violation of whichmay subject a lawyer to discipline.By requiring the affirmative report-ing of pro bono legal services pro-vided directly to an individual oflimited means, this Rule 6.7requires reporting only for a subsetof the public interest legal serviceencouraged under Rule 6.1.

(dc) Public Disclosure ofInformation Received. Informationreceived pursuant to this Rule isdeclared confidential and shall notbe publicly disclosed by the IndianaSupreme Court or any of its agen-cies, on an individual or firm-widebasis.

This amendment shall take effectimmediately.

DONE at Indianapolis on April 30,2015.

Loretta H. Rush, Chief Justice ofIndiana

All Justices concur.

ATTEN

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In my October 2014 column, I wrote about the SupremeCourt’s new Rule of Profes-

sional Conduct 6.7, which requiredthat certain pro bono legal workand financial contributions bereported on our annual attorneyregistration statements. Lundberg,“Pro Bono and Pro BonoReporting,” Vol. 58, No. 3 ResGestae 10. In that column, in addi-tion to describing the rule, I raisedsome questions about aspects of therule that I thought were confusing.While I am often in a state of con-fusion, in this case, I think therewere quite a few other lawyers who shared my plight.

On April 30, the Court tookmercy on my befuddled state andkindly amended Rule 6.7, effectiveimmediately. The amended rule is more streamlined and readable,plus it addresses many of the ques-tions I posed in October. Here arethe key changes.

First, the Court now provides arationale for requiring the report-ing of some, but not all, pro bonowork. The purpose is: “To assessthe current and future extent ofvolunteer legal services provideddirectly to individuals of limitedmeans and to encourage such ser-vices … .” It is helpful to know thatthe purpose of the rule is to trackspecific information and not todenigrate other types of pro bonothat fall within Rule 6.1 but notRule 6.7. That said, the Court wastransparent in its encouragement of pro bono legal representation offinancially needy individuals. It ispretty clear that the Court wants to do more than collect informa-tion. It wants lawyers to use theirskills to help poor people with legalneeds.

Second, the Court now alsoasks us to report reduced compen-sation pro bono representation solong as the fee is discounted below50 percent of the lawyer’s usual

rate. Both no-fee and reduced-feepro bono hours are reportable asgood faith approximations.

Third, whether no-fee orreduced-fee legal work qualifies aspro bono representation is deter-mined when the services are pro-vided, not when the representationcommences. Many cases are accept-ed as pro bono matters from theget-go. But what about the payingclient who has a bad financial turnof events or simply runs out ofmoney to pay legal fees because thematter became more complicatedthan expected? This amendmentacknowledges the laudable practiceof lawyers who, rather than aban-doning their clients who can nolonger pay for legal services, stickwith them with no further expecta-tion of being paid. It happens often.

Fourth, gone is the complicat-ed linkage of reportable pro bonoto clients whose income is below200 percent of the federal povertyguidelines. Now, we will report pro bono hours for representingindividuals “reasonably believed to be of limited means.” “Limitedmeans” is not defined, so it is a flexible concept that allows lawyersto measure their pro bono clients’ability to pay against what it wouldotherwise cost them to pay for therepresentation. Thus, a pro bonoclient might not be indigent in theabsolute sense of the word, butmight not have sufficient means topay for legal representation, espe-cially for complicated matters. Still,there is a limit to this more flexibleapproach. For example, a lawyerwho represents a wealthy client for free because the lawyer believesin the cause is not engaged inreportable pro bono work.

Fifth, the Court’s previous,confusing reference to pro bonolegal services “directly to or for thebenefit of” poor people has nowbeen clarified so that reportable pro bono hours are only for direct

representation of individuals oflimited means.

Sixth, the Court still requiresus to report financial support of thesame classes of organizations, butdirect monetary support must bereported in terms of actual, notestimated dollars. This is no burdensince we will normally track thosedonations anyway for tax-deduc-tion purposes.

Seventh, the Court clarifiedthat in-kind contributions do notinclude the value of donated ser-vices, but only “tangible property.”Also, the valuation question was left deliberately vague by a refer-ence to the donated property as “fairly valued.”

Eighth, the rule still says thatthe information the Court collectsshall not be publicly disclosed bythe Court, but it makes the addi-tional declaration that the informa-tion is “confidential.” This makes itunambiguous that reported infor-mation is exempt from disclosurein response to a public records actrequest. See IC 5-14-3-4(a)(8).

Lastly, the Court took a bit ofthe edge off the rule by droppingthe statement that violation of therule will subject lawyers to profes-sional discipline. This was unneces-sary inasmuch as non-reporting isnot an option. The Court’s onlineannual registration portal willrequire us to report qualified probono hours and financial contribu-tions. If we have nothingto report, we will insertzero. It simply won’t bepossible to not report ourqualified pro bono timeor donations when we go through the annualregistration process. Thelawyer who fails to com-plete an annual registra-tion will, as a technicalmatter, fail to report

ETHICS C

URBSTO

NE

Rule of Professional Conduct 6.7, Version 1.1By Donald R. Lundberg

Donald R. LundbergBarnes & Thornburg LLPIndianapolis, [email protected]



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pro bono; but then the lawyer willalso be suspended for not register-ing, so the absence of a pro bonoreport is small potatoes.

Since the amended rule doesnot have a retroactive effective dateto Jan. 1, one point amended Rule6.7 does not address is whether we must report 2015 pro bono in2016 as though we operated underthe first version for the first fourmonths of the year and the amend-ed version for the last eight months.In theory, this could be an issuewith reduced-fee pro bono. Is reduced-fee pro bono done from January through April 2015reportable? Given that the Court isasking for our good faith approxi-mations and there is no auditingmechanism, I doubt anyone will getexcited if lawyers look at the clarifi-cations in the amended rule as aguide to reporting their pro bonowork throughout all of 2015.

In closing, amidst the techni-calities of Rule 6.7, we should notlose track of Rule 6.1 and its strongmoral claim on lawyers to renderpublic interest legal services. In this,we fulfill our highest calling as pro-fessionals in the finest tradition ofthe bar. There are many opportuni-ties for pro bono work available.Take advantage of them. �

ETHICS CURBSTONEcontinued from page 19


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Whether or not you prac-tice real estate law on a regular basis, a large

percentage of attorneys, at one timeor another, have reviewed closingpaperwork for a client who is eitherselling or buying a house. After all,it is generally considered to be thelargest single investment mostAmericans will make in their life-time. A substantial overhaul of therules and procedures governingconsumer mortgage finance and the closing of residential real estateloans has been in process since the passing of the Dodd-Frank Wall Street Reform & ConsumerProtection Act in 2010, including a complete departure from the cur-rent Good Faith Estimate, Truth-In-Lending and HUD-1 SettlementStatement. Since 1974, the RealEstate Settlement Procedures Act(RESPA), under the purview of theDepartment of Housing & UrbanDevelopment (HUD), has been thegoverning law of residential realestate transactions throughout thecountry. Effective January 2014,RESPA is now governed by theConsumer Financial ProtectionBureau (CFPB), a federal entity created pursuant to Dodd-Frank.Beginning with mortgage loanapplications taken on or after Aug. 1, 2015, there will no longerbe the gridded HUD-1 SettlementStatement. It will be replaced withthe Closing Disclosure Form, whichis required to be given to the mort-gagor no later than three daysbefore the mortgagor signs themortgage note at the closing. Inaddition to the Closing DisclosureForm, the CFPB has promulgatedother forms directed specifically to the buyer and seller, which areexpected to become commonplace.After 40 years of familiarity withthe HUD-1, the mortgage and titleindustries have already spent thelast year or more preparing for the

changes, including spending anestimated $314.7 million on newsoftware to accommodate the newform. To familiarize yourself withthe new forms and procedures, visit http://www.consumerfinance.gov/knowbeforeyouowe or contactthe title insurance office of yourchoice in order for you to be fully

informed prior to representing aclient buying or selling residentialreal estate.

Promulgated by the ISBA Probate, Trust & Real Property Section

REAL ESTATE CORNER

Overhaul of residential real estate transactions with mortgage loans


RG 05.15_RG 09.05 5/21/15 9:27 AM

AUG. 20, 2015

AUG. 20, 2015

6.5 HRS. CLE6.5 HRS. CLE

How to Develop a Thriving Solo Practice

HANGING OUT A SHINGLE

6.5 hrs. CLE, including 2 hrs. Ethics

Aug. 20 @ 8 am - 4:30 pm

Lunch Included

Regions Bank Conference Center One Indiana Square, 5th Floor, Indianapolis, IN 46204

Sponsored by the ISBA Membership & Membership Bene�ts Committee

Handling the Stress of Solo PracticeLoretta A. Olesky,

Indiana Judges & Lawyers Assistance Program

Building a Practice: How to Get & Keep ClientsDerrick Wilson, Mattox & Wilson

Stephen M. Terrell, Terrell Law O�ce

Everything Else: Tips on What No One Else Told You Patricia Yevics, Maryland State Bar Association

Avoiding Grievances & MalpracticeAdam E. Gwaltney, Ritman & Associates

How to Deal With Clients

Holly M. Harvey, Holly Harvey Law

Practical Business Tips: Starting a Solo PracticeAnthony M. Rose, Anthony Rose Law Firm

Technology Every Solo Needs

Matt LaMaster, Advantage Technologies

TOPICS:

Register online at www.inbar.org or call 800-266-2581.

Deadline: Aug. 21

In promotion of the ongoingdiscussion about ethics in

our profession, the State Bar’sLegal Ethics Committee, alongwith the Young Lawyers Sectionand Written PublicationsCommittee, is again sponsoringthe Association’s yearly ethicsessay contest. The contest, opento Indiana law students, newlawyers and paralegals, boastscash prizes for the top threeentries as well as the chance to have one’s essay featured in the Association’s flagshippublication, Res Gestae.

Entrant basics

• Essay length must notexceed 1,800 words (includingendnotes).

• Select, in drafting your responses, from one of five provided prompts.

• All entries must be electron-ically submitted on or before11:59 a.m. EDT Friday, Aug. 21.

Submissions will be judgedby three Legal Ethics Committeemembers. The top five partici-pants will present their essays to the committee and receiverecognition at this year’s AnnualMeeting Awards Luncheon atthe historic French Lick Resortin October.

Questions? ContactCatheryne Pully at the State Bar,[email protected]. �

ISBA Legal Ethics Essay ContestGoals: To (1) further the discourse on legal ethics in the professiongenerally and amongst Indiana law students and recent graduatesin particular, and (2) allow the Association’s Legal EthicsCommittee to continue assessing prevailing attitudes of those at the outset of their careers toward issues in professional responsibility.

RULES

Eligibility: The contest is open to: (1) all Indiana law school current enrollees and recent graduates (i.e., received J.D. or LL.M.degree within the last year); (2) attorneys within their first threeyears of practice; and (3) paralegals with five years or less work experience.

Length: Overall essay must not exceed 1,800 words (includingendnotes).

Topic: Participants shall base their entries on one of the fiveprompts described on page 24 of this issue of Res Gestae.

Deadline: All essays will be electronically submitted, in MicrosoftWord format, to ISBA Local & Specialty Bar Liaison CatherynePully ([email protected]) no later than 11:59 a.m. EDT Friday, Aug. 21.

Finalists:Members from the Legal Ethics Committee will select,from all entries, five finalists, who will then receive an invitation to attend the committee’s Sept. 12 meeting, either in-person or telephonically, to present their essays and answer questions.

Winners: Committee members charged with judging submissionswill award first-, second- and third-place titles to the top threeresponses. Winners will be contacted personally; all other entrantswill be notified of contest results by email.

Prizes: The first-place essayist, in addition to receiving a $250 cashprize, will have the opportunity to have his or her piece submittedfor possible publication in Res Gestae, the Association’s flagshippublication, with statewide readership among legal practitionersnumbering in the thousands. The top entrant will also have thechance to compete for a Harrison Legal Writing Award, handeddown annually by the Association’s Written PublicationsCommittee, as well as be formally recognized at the Association’sAnnual Meeting Awards Luncheon in October.

Second- and third-place essayists will receive $150 and $100for their efforts, respectively, and, along with the top response,have their entries reproduced in Addendum, the Association’sbiweekly member e-newsletter. The top three submissions – as well as the two next-best essays – will earn mention in the eventprogram for this year’s Annual Meeting Awards Luncheon.

GUIDELINES

1. Essays are to be typewritten, using either Times New Romanor Book Antiqua font, 12-point type.

ATTEN

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Annual ethicsessay contest



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2. Essay text is to be double-spaced, with one-inch margins on either side.

3. Essay pages are to be lower-right numbered, complete withauthor’s name.

4. Essay notes and citations areto be entered using the Bluebooklegal style.

5. Essays are to reference at least one of the following legalauthorities: the Indiana Rules ofProfessional Conduct; the IndianaRules for Admission to the Bar &the Discipline of Attorneys; IndianaCourt of Appeals (for-publicationor reclassified memorandum) decisions; Indiana Supreme Courtopinions. Essays are free, of course,to additionally reference: AmericanBar Association Model Rules ofProfessional Conduct; rules andcase law governing ethical conductand professional responsibility inother United States jurisdictions;exceedingly persuasive secondarysources.

PROMPTS1. The Indiana Rules of

Professional Conduct require alawyer to “provide competent rep-resentation to a client.” Comment[2] to that Rule clarifies that “[a]lawyer need not necessarily havespecial training or prior experienceto handle legal problems of a typewith which the lawyer is unfamiliar… [a] lawyer can provide adequaterepresentation in a wholly novelfield through necessary study.” Inan era of increasing lawyer special-ization, is the Comment still true? If not, and it bears revising, whatshould the revised comment say?

2. As evidenced by Wisner v.Laney, 984 N.E.2d 1201 (Ind.2012), Indiana courts have madeclear that attorneys are obligated to behave in a “civil” manner whenengaged in the practice of law.Federal courts also share this view(Flomo v. Bridgestone, 2010 WL

935553). However, the IndianaRules of Professional Conduct neither explicitly impose such a burden, nor do they directlyaddress its scope. Discuss (a) thesource of this duty; (b) how it isdefined; (c) whether it should beconsidered an “ethical” duty; and(d) how lawyers are to be disci-plined for transgressions of saidduty.

3. Technology has touchedevery part of our lives, completewith concomitant benefits and pit-falls. A paralegal in your workplace,having logged nearly four decadesof service in our field, waxes nostal-gic on the trials of going from a simple IBM Selectric typewriter in the early ’80s to the wide rangeof highly advanced programs nowin daily use. Then drawing yourattention to the American BarAssociation’s 2012 formallyapproved change to the ModelRules of Professional Conduct(amending Comment [8] to ModelRule 1.1), she notes that multiplestates have since incorporated someduty of “technological competence”into their rules, with some evengoing as far as to issuing advisory(and, in some cases, disciplinary)opinions on the subject. How doyou react to her argument thatIndiana also should change its rulesaccordingly, making it clear thatlawyers must not only maintain abasic level of professional compe-tency, but also keep pace withrapidly changing technology?

4. Full-time law students, bycurrent American Bar Associationaccreditation standards for all lawschools, are enjoined from workingmore than 20 hours per week whileso enrolled. In demonstrating com-pliance with these requirements,schools are actually beginning todemand that students certify thenumber of hours they work whileenrolled in classes – generally underthe auspices of each institution’s

“honor code.” In light of today’scompetitive job market, discuss theimplications, per our Rules ofProfessional Conduct, for both thestudent who may effectively violatethis guideline and the legal employ-er seeking to entice such students towork more weekly hours thanpresently permissible.

5. Fanciful Industries has apatent on a design for a “better”mousetrap and has been directlymarketing that “better” mousetrapto various retailers. RodentEnterprises, a competitor, marketsits own mousetrap to other retail-ers. Fanciful believes that theRodent trap infringes on its patent,and hires the law firm of France & England to bring a patentinfringement action againstRodent. In that action, it seeksdamages for Rodent’s directinfringement. It also seeks damagesagainst Rodent for indirectinfringement – for having inducedRodent’s customers to infringe onFanciful’s patent. Lastly, it seeksinjunctive relief enjoining Rodent(and others in active concert with Rodent) from infringing onFanciful’s patent. Rodent deniesinfringement and otherwise chal-lenges the validity of Fanciful’spatent. As the case progresses,Fanciful’s discovery requests toRodent reveal, inter alia, Rodent’scustomer list, containing namesand addresses of numerous retail-ers. France & England thus deter-mine – for the first time – that oneof its labor and employment clientsis a wholesale purchaser-retail sellerof Rodent’s trap. Should France &England be disqualified from repre-senting Fanciful on these facts? If not, are there any limitations on France & England’s continuedrepresentation of Fanciful? �

ETHICS ESSAY continued from page 23


RG 05.15_RG 09.05 5/21/15 9:27 AM

Spread the word – IndianaRegistered Paralegal status is coming! The ISBA Affiliate

Membership Committee is pleasedto announce that the State Bar hasadopted a voluntary paralegal regis-tration program. The ISBA Houseof Delegates approved paralegalregistration at its annual meetinglast October, and in March theBoard of Governors approved theprogram with a target implementa-tion date of July 1.

The movement toward parale-gal registration is not a new conceptin Indiana. The House of Delegatesfirst considered paralegal registra-tion in 2006. The 2014 proposalwas for the Indiana Supreme Courtto add a new Rule 9 to the Rules ofProfessional Conduct, with admin-istration of the program to be dele-gated to the ISBA. In December theSupreme Court declined to adopt a rule at this time but indicated thatit saw nothing that would preventthe ISBA from creating and admin-istering a paralegal registration program.

An applicant seeking the StateBar’s Registered Paralegal statusmust be a member in good stand-ing of the ISBA and meet certaineducation or credential criteria.Upon approval, the paralegal willbecome an Indiana RegisteredParalegal and identify said statuswith the initials IRP following his or her name.

The following are requirementsfor the IRP status:

1. Currently employed as aParalegal: Paralegals are those persons, regardless of job title orclassification, who are employed by a lawyer, law office, governmentagency or other entity in Indianaand working under the direction of an attorney in a capacity thatinvolves the performance of sub-stantive legal work that usuallyrequires knowledge of legal con-cepts, and who perform those

duties at least 70 percent of thetime. Substantive legal work isdefined as work for which an attor-ney is ultimately responsible, andabsent such paralegal, the attorneywould perform the task.

2. Affiliate Member of ISBAin good standing for 3 consecutiveyears (current paralegal AffiliateMembers have met the require-ments and are therefore prequali-fied).

Or

3. One of the following:

• Bachelor’s Degree with a mini-mum of 12 hours of undergraduatecredit in law or paralegal studiesfrom an institutionally accreditedparalegal program;

• Bachelor’s Degree and aParalegal Certificate from an insti-tutionally accredited paralegal program;

• Bachelor’s Degree from aninstitutionally accredited program

plus at least 2 years of paralegalexperience;

• Associate’s Degree in paralegalstudies from an institutionallyaccredited paralegal program plusat least 2 years of paralegal experi-ence;

• Certification in paralegal stud-ies from an institutionally accredit-ed paralegal program plus at least 2 years of paralegal experience;

• Paralegal AdvancedCompetency Exam (PACE) (asoffered by the National Federationof Paralegal Associations) and is ingood standing;

• Paralegal CORE CompetencyExam (PCCE) (as offered by theNational Federation of ParalegalAssociations) and is in good stand-ing;

• Certified Legal Assistant/Certified Paralegal (CLA/CP) certification (as offered by

ASSO

CIATIO

N NEW

SBecome an Indiana Registered Paralegal



RG 05.15_RG 09.05 5/21/15 9:27 AM

the National Association of Legal Assistants) and is in good standing.

To maintain the IRP status,there is a CLE requirement consisting of 18 hours of substan-tive CLE, 3 hours of which is anEthics Component, over a 3-yearperiod. A minimum of 6 hours ofCLE, of which 1 hour must be an

Ethics Component, is required peryear.

More good news! From July 1,2015, through July 1, 2017, theIndiana State Bar is reopening itsgrandparent provision for paralegalmembership in the ISBA. Thisgrandparent provision enablesparalegals to apply for membershipwith a waiver from the educational

or testing requirements. To qualifyfor the waiver for ISBA member-ship, the applicant needs workexperience consisting of not lessthan 70 percent of substantive legalwork performed for a minimum of 3 years of the previous 7 years in the employ of an attorney, law office, corporation, govern-ment agency or other entity while performing specifically delegatedsubstantive legal work for which an attorney is ultimately responsi-ble, and absent such paralegal, the attorney would perform thetask. An attorney affidavit of workexperience must be attached to theapplication for membership.

The Affiliate MembershipCommittee is extremely excitedabout this new chapter in the devel-opment of the paralegal professionin Indiana. For paralegals whoaspire to a higher goal, the IndianaRegistered Paralegal status will both recognize and convey a person’s commitment to compe-tence with the emphasis on profes-sional education and minimumstandards for the profession.

Stay tuned for additional information from the AffiliateMembership Committee. �

REGISTERED PARALEGALS continued from page 25


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The ISBA Service Committee, incoordination with the Office

of Indiana Attorney General andFeeding Indiana’s Hungry (FIsH),recently announced the winners ofthis year’s March Against Hungerfood drive competition. Winnersfrom each of the following six divi-sions will receive the “AttorneyGeneral’s Cup” trophy at localrecognition events:

• Sole Proprietor – StevenDouglas Law Office, Ellettsville($1,170 monetary donations)

• Small Firm (2-11 persons) – Wilson Kehoe Winingham,Indianapolis ($1,180 monetarydonations; 191 pounds of food)

• Medium Firm (12-21 persons)– Wilkinson Goeller ModesittWilkinson & Drummy, TerreHaute ($2,445 monetary dona-tions)

• Large Firm (22-49 persons) – Burke Costanza & Carberry,Merrillville ($4,302.70 monetarydonations; 257 pounds of food)

• X-Large Firm (50+ persons) – Barnes & Thornburg, Indianap-olis, Fort Wayne, South Bend &Elkhart offices ($13,670 monetarydonations; 417 pounds of food)

• Public/Non-Profit/Local Bar– Vanderburgh Co. Prosecutor’sOffice, Evansville ($3,000 monetarydonations; 1,690 pounds of food)

“The lawyers in Indiana havealways championed the MarchAgainst Hunger food drive compe-tition, and this year was no excep-tion, raising more monetary donations and nonperishable food items than in previous years,” ISBA President Jeff R. Hawkinssaid. “I know that helping others is an emotionally rewarding

experience, and I’m proud of myprofession’s participation.”

This year’s March AgainstHunger food drive competitiontook place March 1-31 and includ-ed 39 participants statewide, gener-ating 10,105 pounds of food and$50,228.20 in monetary donations.Since 2009, the food drive has generated a total of 62,459 poundsof food and $282,027.91 in mone-tary donations for Indiana foodbanks.

“The March Against Hunger is a great tradition that inspires aculture of serving and giving backthat helps put food on the table for many struggling families in ourstate,” Indiana Attorney GeneralGreg Zoeller said. “Thank you tothe State Bar and law firms – bigand small – that make this effort

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a priority and help grow this program year after year. Your generosity makes our Hoosier communities stronger.”

“We are grateful for the participation and generosity of so many attorneys as well as for the leadership of AttorneyGeneral Zoeller and the IndianaState Bar Association to raiseawareness of hunger,” FIsHExecutive Director Emily WeikertBryant said. “Our food banks areserving one in six Hoosiers who areat risk of hunger; that’s more than 1 million people. The food andfunds contributed though theMarch Against Hunger drive thisyear will provide much-neededassistance to those in our commu-nities who continue to struggle with hunger.” �

Thanks to our 2015March Against Hungerparticipants!

SOLE PROPRIETORSteven Douglas Law Office

The Law Office of Bryan K. Bullock

SMALL FIRM (2-11 persons)Delk McNally

Helmke Beams

Hensley Legal Group

Jones Obenchain

Kos & Associates

Roberge Law

Robert John & Associates

Theisen & Associates

Wagner Reese

Wilson Kehoe Winingham

MEDIUM FIRM (12-21 persons)Burt Blee Dixon Sutton & Bloom

Eichhorn & Eichhorn

Haller & Colvin

Hoover Hull Turner

O’Neill McFadden & Willett

Tuesley Hall Konopa

Wilkinson Goeller ModesittWilkinson & Drummy

LARGE FIRM (22-49 persons)Burke Costanza & Carberry

Church Church Hittle & Antrim

Kightlinger & Gray

Kopka Pinkus Dolin

Lewis & Kappes

X-LARGE FIRM (50+ persons)Barnes & Thornburg

Faegre Baker Daniels

Ice Miller

Lewis Wagner

PUBLIC/NON-PROFIT/LOCAL BARAllen County Bar Association

Hendricks County Bar Association

Indiana State Bar Association

Indiana State Senate

Indianapolis Legal Aid Society

Lake County Bar Association

Marion County Prosecutor’s Office

Northeast Indiana ParalegalAssociation, Inc.

Office of the Indiana AttorneyGeneral

Vanderburgh County Prosecutor’sOffice

Women Lawyers Association �

FOOD DRIVE continued from page 27


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Ihave been a podiatrist in theIndianapolis area for more than25 years. A significant part of

my practice is working with run-ners and other active people, help-ing them overcome running andaerobic exercise-related injuries.Unfortunately, part of injury recov-ery often involves periods of timewithout being able to perform yourdesired form of exercise. For manypeople, once they are unable to runor participate in their preferredform of exercise, it is extremely difficult for them to maintain themotivation needed to stay fit dur-ing the recovery process. I want toshare with you some of the thingsthat I have learned over the yearsthat might help you stay motivatedand fit even if you are unable tocontinue with your normal exerciseroutine.

Here are my top tips for stay-ing motivated and fit when you are injured.

1. Don’t stop moving

Unfortunately, we lose fitnessrather rapidly when we stop exer-cising entirely. After seven dayswith no exercise, your total bloodvolume can decrease by up to 12 percent, making your heart workharder to accomplish less. After justfour weeks without aerobic exer-cise, your VO2 max (the maximumamount of oxygen your body canutilize during one minute and an important overall measure of aerobic fitness) will diminish by up to 20 percent.

After two to three months of no aerobic exercise, your heartmuscle thickness will be reduced byup to 25 percent, thus significantlydecreasing its efficiency. And evenif you manage to maintain yourweight through reduced calorieconsumption while not exercising,you will have actually increasedyour body fat composition as your body will replace lost

muscle mass with increased adiposetissue.

Fortunately, this loss of fitnessis not inevitable. With a solid planand the right motivation, you canstay fit.

2. Use the power of habit

A paper published by a DukeUniversity researcher in 2006 foundthat more than 40 percent of theactions people perform each dayweren’t actual decisions, but habits.Use the power of habit to stay fit.For instance, devote to cross train-ing the time slots you previouslydevoted to running. Start by making a commitment that eventhough you cannot run, you will

continue to use the time you wererunning as time for exercise. If youallow yourself a week or more of noexercise, you are likely going to findit more difficult to reestablish yourprevious exercise habits. Even dur-ing your first week of injury recov-ery, it is important to continueexercising at the same time you are accustomed to working out.

3. Cross train

You can maintain a highdegree of fitness by cross training,but how do you determine whichcross training is appropriate andwhich activities should be avoidedso as not to slow your injury recov-ery? For most running injuries, riding a bike and swimming canallow you to get in a full workoutwithout interfering with yourinjury recovery. However, it is best to consult a sports medicinespecialist to learn the most appro-priate cross-training strategy during your injury recov-ery. I have included asidebar at page 31 withsome general suggestions.

FIT TO PR

ACTIC

EStaying fit and motivated while injured

By Michael J. Helms, DPM

Indy PodiatryIndianapolis, [email protected]


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4. Improve your core strength

Your core consists of all themuscles from your upper chestdown to just above your knees.Having a weak core is a significantfactor in the development of manyrunning-related injuries. If yourcore is weak, you are at higher riskfor developing injuries no matterwhat your normal exercise activityis. Strengthening your core is alsopart of the treatment for manyexercise-related injuries. So, if you have not been including core strengthening in your exercise routine, the time spent recoveringfrom your injury represents an ideal time to establish corestrengthening as a habit. If youalready do core strengthening, this time can be spent making yourcore even stronger and reducing re-injury risk in the future.

Where do you start if you havenot been working your core? If youbelong to a gym, arrange a sessionor two with a personal trainer to learn a core exercise routine. On my website, indypodiatry.com,there is a video demonstrating acore-strengthening program. If yousearch online for core routines, becareful, as many programs I’ve seenare far too intense for people whohave not been regularly engaging in core strengthening exercises. As with any exercise, doing toomuch too soon can cause injuries.

5. Utilize your social network

Are you accustomed to run-ning with friends or working outwith a group on certain days? Askthem to cross train with you. If youmet a friend for a run once or twiceweekly, ask him or her to meet youat the gym at the same time younormally ran together. Again, thishelps maintain your establishedexercise routines with the added

benefit of continuing social connec-tions that often serve as a motiva-tion for keeping a consistent exercise pattern.

6. Volunteer at a running event

There are races, walking eventsand triathlons throughout the cal-endar year. These events often servecharitable purposes, and they arealways in need of volunteers toallow the events to functionsmoothly. For runners, volunteer-ing allows you an opportunity togive something back to runningwhile helping you feel connected to the running community at a time when you cannot run.

7. Make use of an anti-gravitytreadmill

For some injuries, you cancontinue to run in a limited fashionby using an anti-gravity treadmill.This machine utilizes differentialair pressure to offload your bodyweight by amounts ranging from 20 to 100 percent. Consult yoursports medicine doctor to see if this reduced weight-bearing formof running is appropriate for yourinjury recovery. There are multipleAlterG® machines in the greaterIndianapolis area, including one at St. Vincent Sports Performancethat is available on a fee-per-usebasis.

It can be depressing to beinjured and unable to run or exer-cise in the way you most enjoy.However, with a little planning andself-discipline, you can hasten yourrecovery and even use the injury as an opportunity to increase youroverall fitness and decrease yourrisk of future injuries. �

FIT TO PRACTICE continued from page 29


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RG 05.15_RG 09.05 5/21/15 9:27 AM

Here are some of the morecommon injuries I treat

and cross-training exercises I typically recommend. Please keep in mind that exercise-relatedinjuries are often multifactorial,and it is best to consult a sportsmedicine specialist about the mostappropriate rehab and cross-train-ing regimen for your particular circumstances. If any of these cross-training exercises cause pain, discontinue the activity.

Plantar fasciitis: cycling andspinning (as long as you stay seatedthroughout the workout), swim-ming, core strengthening and upperbody weight work. Avoid weight-bearing exercise such as running,walking and the elliptical.

Stress fractures of the foot:seated cycling and spinning, swimming, core strengthening and weight work sitting on a benchor using seated weight machines.Avoid weight-bearing exercise.

Stress fractures of the leg (tibiaor fibula): upper body weight workimmediately. Consult your doctorfor permission to start seatedcycling and swimming, but usuallyafter two weeks.

Achilles tendonitis: seatedcycling and spinning, weight worksitting on a bench or using seatedweight machines and core strength-ening. Avoid swimming, running,exercise walking and the elliptical as these can further aggravate theAchilles tendon.

Other foot and ankle tendonitis (peroneal, extensor):Same as for the Achilles, but swim-ming is also acceptable.

Patellar tendonitis: The patel-lar tendon is the large tendon thatcourses over your kneecap andinserts onto the top of your leg.You should avoid running andcycling while rehabilitating fromthis injury as these two activities are common causes of patellar tendonitis. Upper body weight

work and swimming are appropri-ate while recovering from thisinjury. Consult a sports medicinespecialist for information on howto strengthen your leg muscles tohelp recover from this injury and to reduce risk of recurrence. �

– Michael J. Helms, DPM


Cross training while injured

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RG 05.15_RG 09.05 5/21/15 9:27 AM

Remember college? A security deposit was likea boomerang – something

that was supposed to come backbut never did. Or how about anunderage drinking citation? Timeto plead guilty and beg rides fromsiblings or friends. No matter howbig or small the legal issue, mostcollege students never considerlegal counsel.

Student legal services (SLS)offices meet the unique needs ofstudents, providing collegians withaccess to justice and redefining thecommunities they inhabit.

Student legal services officesare not a new concept – theUniversity of Illinois at Urbana-Champaign launched a programfunded through Lyndon B.Johnson’s Great Society in the1960s, and that program has existedin some iteration to the presentday. These offices are not rare,either. The National Legal Aid & Defender Association(www.nlada.org) lists 98 offices in 38 states that provide some formof direct legal services for students.Most Big Ten schools, including the Hoosiers and Boilermakers,support SLS offices.

While consistent in that theyare legal offices designed to provideservices for students at a college oruniversity, these programs do not

follow a single model.Some offices provideadvice and referralonly; others also offer representation.Services may be provided by contractattorneys, staff attor-neys or law schoolclinics. The fundingsources can be endow-ments, general funds,activity fees or organi-zational fees. Yet SLSoffices retain a keyshared characteristic

in that services are either free orinexpensive (think health insuranceco-pay) to qualifying students.

Regardless of how they arestructured, SLS offices do not fit thetraditional profile of a legal servicesagency. In Reinventing the Practiceof Law: Emerging Models to EnhanceAffordable Legal Services, editor LuzE. Herrera notes that “[l]awyersmay want to consider new outreachmodels and niche markets as waysto engage untapped markets withunmet legal needs.” While not inthe typical mold, SLS organizationsdo meet unmet legal needs andalign with the three prongs of the U. S. Department of Justice Access to Justice Initiative(www.justice.gov/atj): promotingaccessibility, ensuring fairness and increasing efficiency.

Promoting accessibility

For college students, there areenormous barriers to legal services.Money and transportation arecommon problems. A Purdue student noted about his university’sSLS office in a 2013 survey, “Thisservice was SO helpful. There wasno way I could afford an attorneyon my own and would have goneinto my court date blind if not forthis service. I never thought I wouldbe going to court or would need a service like this, but I am so gladthis service was available to me.”

There are less obvious barriersas well – these first-time users ofthe judicial system are unfamiliarwith the process of finding an attor-ney. Another Purdue Universitystudent, responding to the survey,said, “Such a useful resource! I needed help with my lease andlandlord, and I would not haveknow where else to go besideshere!”

Ensuring fairness

Fairness is served by levelingthe playing field between resource-rich businesses and resource-poorstudents. Students may even beunaware of what constitutes a fairresult under the law.

In one such case, a studentfrom China studying at Ball StateUniversity came into her SLS with$80,000 in outstanding medicalbills. She had incurred the expensesthinking that she was coveredunder her husband’s policy, when it had actually been canceled uponhis termination from employment.She came to SLS because she hadno idea what to do next. Accordingto Ball State’s SLS managing attor-ney, John D. Connor, he investigat-ed and found that her husband’sprior employer had failed to pro-vide proper notice under COBRAregarding her right to continuingcoverage. The employer paid herbills in full.

Efficiency

These offices do not deal exclu-sively in heartwarming fact scenar-ios and grateful clients. They get the students who want to challengethe landlord’s charge for cleaningmojito stains from the carpet; thestudents who think getting out of alease just means telling the landlordthey’ve changed their minds; theones who are certain it is a defensethat the one hitter they were hold-ing was really their roommate’s.

Justice is still served in thesecases because there is an inherentefficiency in legal representation.SLS attorneys advise students whenclaims lack merit, adjust expecta-tions for outcomes, negotiate reso-lutions outside of court and pro-vide representation in hearings.

Not only do SLS organizationsfulfill the vision of access to justice,they are serving a population withan acute need for these services.

Meeting the legal needs of college studentsBy Kelly A. Mroz


Kelly A. MrozDirector of Student

Legal ServicesDivision of Student Affairs

Pennsylvania State UniversityUniversity Park, Pa.

[email protected]

RG 05.15_RG 09.05 5/21/15 9:27 AM

Criminal convictions can havea profound impact on college stu-dents as they dive into a stagnantjob market. Despite improvementsin national unemployment ratesfrom recession highs of more than9 percent to the current rate of 5.6 percent, the trend is largelyattributable to increases in low-income jobs. According to an analysis conducted by the National Employment Law Project(www.nelp.org), mid- and high-income positions have not recov-ered at the same rate as low-incomejobs, such that there were 2 millionfewer jobs in 2014 desirable to college grads than there were in2008. As college students competefor these scarce jobs, a criminalrecord will be no secret to aprospective employer. In a 2010survey conducted by the Society for Human Resource Management(www.shrm.org), 92 percent of theirmembers conducted backgroundchecks on prospective employees.

This profound impact is evident in a case where a studentwas charged with a felony – a small-time marijuana case in theheyday of tough drug sentences.The director of Michigan’s SLSoffice, Douglas E. Lewis, recalls thathe was able to work out a deal thatresulted in dismissal of the chargesand a sealed record, thus enablingthe student to leave college with a clean slate. Lewis received anupdate five years later: The studenthad graduated, gotten a job with a large corporation, and marriedand celebrated the birth of his firstchild. Imagine the differences inthat student’s life five years out if he had been convicted and servedjail time.

Of concern is not just thelongevity but also the immediacy of the impact of legal issues in the college population. In a 2009Associated Press and mtvU (theMTV college network) survey,

85 percent of college studentsreported feeling stressed in theirdaily lives. When legal woes arise,this stress can quickly turn into a crisis.

In one case, a veteran sufferingfrom post-deployment psychologi-cal stresses went to an emergencyroom seeking mental health treat-ment. He was living out of his carand barely meeting basic expenses,so the resulting $3,000 bill onlymade his condition worse. Thedirector of Texas State University’sSLS, Shannon M. FitzPatrick,recounts that her office was able to work with both the hospital andphysicians’ group, and both entitieswrote off 100 percent of the chargesa few days before Christmas. Theveteran contacted the SLS office

a year later to say thanks and thatwithout its help, the past Christmasmight have been his last. Instead, he connected with veterans’ support groups, and his life is moving in a positive direction.

The impact of a student legalservices office transcends the indi-vidual cases as these offices are ableto effectuate lasting change in thesurrounding communities. Mostnotable is the relationship betweenthe students and landlords. Judy A. Williams joined Montana StateUniversity Billings as a student legalservices attorney in February 2005and was awash in student com-plaints about landlords’ evictionand security deposit practices. Shepursued those cases that had meritand said, “By April the landlordswere taking notice; in May theyasked me to talk to them. By theend of the following fall, the land-lord-tenant complaints were waydown, and often a quick letter fromme resolved the issue.”

Despite their value, theseoffices are far from universal.Twelve states have no programs atall, and only five states boast fouror more institutions with SLSoffices. Indiana falls in the middlewith programs at Ball State, IndianaUniversity and Purdue. As part ofthe legal profession’s commitmentto access to justice, consider waysyou can help your alma mater orlocal university create, maintain orexpand legal services for students –because you remember college andhow easy it was to stay out until 4 a.m. and how the ability to chugMilwaukee’s Best was as highlyprized as a complete set of notesfrom Art History 101. Ah, college.Those were the days. Too badthere’s no way to get that securitydeposit back now. �A version of this article first appeared in the January/February edition of The Pennsylvania Lawyer.


RG 05.15_RG 09.05 5/21/15 9:27 AM

A Partnership of the Indiana State Bar Association

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800-266-2581 | www.inbar.org

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In January, the Indiana SupremeCourt issued two civil opinionsand granted transfer in one

civil case. The Indiana Court of Appeals issued 17 published civil opinions. The full texts ofthese opinions are available viaCasemaker at www.inbar.org.

SUPREME COURT DECISIONS

Divided Court holds that Indiana Civil RightsCommission’s jurisdiction over retaliation claims mustrelate to underlying unlawfuldiscrimination claim that fallswithin enumerated criteria in I.C. §22-9-1-3(1)

The Indiana Civil Rights Lawconfers enforcement powers to theIndiana Civil Rights Commission(the “Commission”) in response to incidents where a person has“engaged in an unlawful discrimi-natory practice.” Ind. Code §22-9-1-6(j). To be “unlawful,” the dis-criminatory practice must relate toenumerated criteria, which includeseducation. I.C. §22-9-1-3(1).

Fishers Adolescent CatholicEnrichment Society, Inc.(“FACES”) is an organizationformed to provide homeschooledhigh schoolers with Catholic educa-tional, spiritual and social enrich-ment. In 2008, FACES held an All Souls’ Day Masquerade Ballconsisting of a dinner-dance eventfor its member students. One mem-ber student who planned to attendhad a serious food allergy, and hermother requested that FACES pro-vided a special dietary accommoda-tion at the event. FACES refusedupon multiple requests. The mother filed a complaint with the Commission, alleging FACESrefused a reasonable accommoda-tion and therefore discriminatedagainst her daughter. Before theevent took place, the mother

secured a dietary accommodationfrom the event venue directly. The daughter attended the eventwithout incident, but she and herfamily were expelled from FACESfour days later. The mother thenfiled a retaliation claim with the Commission. Ultimately, theCommission found that FACEShad an educational purpose andretaliated against the family in violation of state law.

In Fishers Adolescent CatholicEnrichment Society, Inc. v.Bridgewater ex rel. Bridgewater, 23 N.E.3d 1 (Ind. 2015) (Rucker, J.,dissenting), a divided court deter-mined that a religious and socialevent did not relate to education,and therefore the Commission didnot have jurisdiction over the com-plaint.

In reaching its decision, themajority noted that there was nodispute that education was a statedpurpose of FACES; however, thespecific act of unlawful discrimina-tion occurred at a “quasi-religioussocial function, not an educationalone.” Id. at 4. The majority rea-soned that a broader interpretation“would eviscerate the function of‘related to education’ as a legislativeprerequisite for the Commission’senforcement powers.” Id. Themajority held that because the fam-ily’s retaliation claim was predicat-ed on a disability discriminationclaim “not related to education and thus … outside the Commis-sion’s enforcement powers, thederivative retaliatory discrimina-tion claim [was] also beyond theCommission’s authority to imposeany remedial sanctions againstFACES.” Id. at 5. The majority rea-soned that finding otherwise would“invite and incentivize the intimi-dating technique of bootstrapping a retaliation claim onto a meritlesscomplaint alleging discriminationnot subject to the Law.” Id.

In dissent, Justice Rucker disagreed with the majority that“retaliation is only a ‘discriminato-ry practice’ when it is committed in response to the filing of a meritorious complaint with theCommission.” Id. at 6 (emphasis in original). Rather, Justice Ruckerexamined Indiana statutory author-ity and federal retaliation law andopined that “retaliation under theAct is a separate act of discrimina-tion regardless of the outcome onthe merits of the underlying com-plaint.” Id. at 7. Justice Rucker con-cluded that “the majority rewritesIndiana’s Civil Rights Act, places an untenable burden on theCommission, and along the wayignores without explanation rele-vant federal precedent. I thereforecannot join its opinion.” Id.

In matter of first impression,unanimous Indiana Supreme Court holds that ‘value’ that triggers secondaryliability under I.C. §22-3-2-14(b) mayinclude value of otherproperty transferred in connection with performance of services

The IndianaWorker’s CompensationAct (the “Act”) imposesliability on a person whohires a contractor withoutverifying the contractorcarries worker’s compen-sation insurance to thesame extent as the con-tractor for the injury ordeath of any of the con-tractor’s employees, butonly if the value of thework exceeds $1,000. SeeInd. Code §22-3-2-14(b).

RECEN

T DECISIO

NS 1/15

Appellate civil case law updateBy Maggie L. Smith and Abigail T. Rom

Abigail T. RomFrost Brown ToddIndianapolis, [email protected]

Maggie L. Smith Frost Brown ToddIndianapolis, [email protected]



RG 05.15_RG 09.05 5/21/15 9:27 AM

In 2009, a wholesale green-house hired a tree extraction con-tractor to remove a large tree at itsbusiness. The contractor quoted a price of $600 for the job, but thecontractor was permitted to keepthe wood he removed, which the contractor intended to sell as firewood. The contractor hired a subcontractor to remove the tree. While completing the job,

the subcontractor fell and was rendered a paraplegic.

In Young v. Hood’s Garden,Inc., 24 N.E.3d 421 (Ind. 2015), the Indiana Supreme Court consid-ered, as a matter of first impression,whether the limit of $1,000 inIndiana Code section 22-3-2-14included only the cash value of thework performed or the value of

other property transferred in con-nection with the performance ofservices. A unanimous Court heldthat the Act includes the value ofother property transferred in con-nection with the performance ofservices.

In reaching its decision, theCourt noted that the legislativeintent of Section 14(b) of the Act is to “enhance the availability ofworker’s compensation benefits for workers injured during theiremployment with employers notproviding such coverage.” Id. at425. It concluded that “[t]his leg-islative objective is best served byinterpreting Section 14(b) to triggersecondary liability for worker’scompensation benefits at the lowestthreshold, that is by permitting the$1,000 trigger to be satisfied byboth direct monetary payment aswell as any ancillary considerationreceived by the employer for thework.” Id.

TRANSFER DISPOSITIONS

The Indiana Supreme Courtgranted transfer in the followingcivil case, with an opinion to followat a later date:

Bogner v. Bogner, 16 N.E.3d1031 (Ind. Ct. App. 2015) (Pyle, J.),transfer granted Jan. 15 (dealingwith child support obligations).

SELECTED COURT OFAPPEALS DECISIONS

Unanimous Court of Appealsrejects constitutional challengeto limits on State’s aggregatetort liability in State Fair stage collapse case

Severe weather led a stage roofto collapse before a concert at theIndiana State Fair, which injured orkilled 65 persons. The victims suedthe State of Indiana, the IndianaState Fair Commission, the IndianaState Police and various privateentities. The Indiana Code provides

RECENT DECISIONS 1/15 continued from page 35


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that the combined aggregate liabili-ty of all governmental entities andof all public employees is capped at $5 million for injury to or deathof all persons in that occurrence.

The $5 million limit was madeavailable to settle the 65 victims’claims, and the plaintiff was theonly claimant who did not settle,rejecting the $1,690 she was offered.A year later, the legislature madeavailable an additional $6 million tocompensate the victims, but it spec-ified that the money was availableonly to victims who had alreadyreleased the State from liability andtherefore the plaintiff was not eligi-ble for any of that money either.

The plaintiff argued the limitson the State’s aggregate tort liabili-ty, as applied to her, violated theIndiana Constitution’s open courtsand equal privileges guarantees. A unanimous Court of Appeals inVanDam Estate v. Mid-Am. Sound,25 N.E.3d 165 (Ind. Ct. App. 2015)(May, J.), disagreed.

With regard to the open courtsclause, the court explained, “Theconstitution does not preclude theGeneral Assembly from modifyingor eliminating a common law tort,but Section 12 requires legislationthat deprives a person of a com-plete tort remedy must be a rationalmeans to achieve a legitimate leg-islative goal.” The court then con-cluded, “The aggregate liability capis a rational means to achieve thelegitimate legislative goal of pro-tecting the public treasury.”

The court also rejected theequal privileges and immunitiesargument, finding that the aggre-gate cap in the ITCA bears “a ratio-nal relationship to the legislativegoal of protecting the public trea-sury against unlimited tort liability.The ITCA’s aggregate cap does notclassify tort victims, but only occur-rences, and the legislature mayproperly decide that occurrencesthat generate over $5 million in

liability place too great a burden on the treasury.”

Other COA decisions

• “In its February 22 Order, the Hamilton Superior Court noted that R. Myers was liable forattorneys’ fees ‘under the terms of the Promissory Note and AssetPurchase Agreement,’ and it award-ed attorney fees in the amount of$50,804.08, which it deemed ‘rea-sonable due to the facts and cir-cumstances of the case.’ Appellant’sAppendix at 30. This amount wasfactored into the overall damageaward of $86,595.43, which thecourt awarded to Adpoint. Thus,the court ordered that R. Myersreimburse Adpoint for certain rea-sonable attorney fees incurred byAdpoint during the UnderlyingLitigation pursuant to the terms of the Promissory Note and AssetPurchase Agreement. It did not,however, consider the total amountAdpoint owed to TBV for servicesrendered under the contractbetween Adpoint and TBV.Accordingly, we find that both issue preclusion and claim preclu-sion are inapplicable to the countsraised in TBV’s complaint.”Thrasher, Buschmann, & Voelkel,P.C. v. Adpoint Inc., 24 N.E.3d 487(Ind. Ct. App. 2015) (Brown, J.).

• “In this case, the trial courtordered that Grandparents receivestructured and unsupervised visita-tion … [in an amount that] totalsapproximately 79 days per year,which is … very similar to the parenting time schedule a non-custodial parent would have. …Accordingly, we conclude that the trial court abused its discretionin its determination of the amountof visitation Grandparents wouldreceive. We remand for the trialcourt to establish a visitation sched-ule that allows Grandparents ‘occa-sional, temporary visitation thatdoes not substantially infringe on’

Father’s right to control L.W.’s‘upbringing, education, and reli-gious training.’” In Re the Visitationof L-A.D.W; R.W. v. M.D. andW.D., 24 N.E.3d 500 (Ind. Ct. App.2015) (Pyle, J.).

• “[W]e observe that as a generalmatter, the Amended Ordinanceeliminated virtually every purposefor which the Ordinance was origi-nally created … . In other words,we agree with the trial court’s char-acterization of the Commissioners’treatment of the Ordinance: they‘gutted’ it. Thus, the inescapableconclusion is that the ‘amendment’the Commissioners made to theOrdinance was so extreme and far-reaching as to amount to a de factodissolution of the Ordinance, incontravention of both Section 36-8-11-24 and Gaudin, 921 N.E.2d895.” Anderson v. Gaudin, 24N.E.3d 479 (Ind. Ct. App. 2015)(Vaidik, C.J.).

• “In this case four medical pro-fessionals examined B.M. and con-cluded that B.M. suffers from men-tal illness. B.M.’s mental illnesscauses him to be delusional, psy-chotic, hostile, upset, angry, andthreatening. During his emergencydetention at the Hospital, B.M. had to be placed in restraints andfought with Hospital staff on sever-al occasions. And B.M. does notbelieve that he is mentally ill andrefuses to take his medication. Dr.Griffith opined that B.M. is danger-ous and as a result of his psychiatricdisorder, B.M. ‘presents a substan-tial risk that he’ will harm others … . For all of these reasons, we conclude that the trial court’sfinding that B.M. is a danger toothers is supported by sufficientevidence. We therefore affirm thetrial court’s order of commitment.”B.M. v. Indiana Univ. Health, 24 N.E.3d 969 (Ind. Ct. App. 2015)(Mathias, J.). �


RG 05.15_RG 09.05 5/21/15 9:27 AM

In January, the Indiana SupremeCourt issued opinions onattempted-murder jury instruc-

tions and double-jeopardy claimsafter retrial, while the Court ofAppeals addressed vagueness chal-lenges to Indiana’s synthetic drugstatute, fruit of the poisonous tree,sentences based on disagreementwith jury verdicts and warrantlessstrip searches.

Accomplice liability instructionfor attempted murder constituted fundamental error

To convict a person as anaccomplice to attempted murder,the person must have the specificintent that the killing occur. Andjuries must be instructed that anaccomplice to attempted murdermust act with the specific intent tokill – the normal accomplice juryinstruction is not adequate. See,e.g., Bethel v. State, 730 N.E.2d1242, 1246 (Ind. 2000). Addressingan issue of first impression, theIndiana Supreme Court recentlyheld that the specific intent to killinstruction is required even in caseswhere it is unknown if the defen-dant was convicted of attemptedmurder on the basis of accompliceliability or direct liability. Rosales v. State, 23 N.E.3d 8 (Ind. 2015).

In Ruben Rosales’ attemptedmurder trial, the State argued boththeories of liability. His charge “wasnot explicitly premised on a theoryof accomplice liability,” but insteadof telling the jury that an accom-plice to attempted murder must actwith the specific intent to kill, thetrial court told the jury an accom-plice is someone “who knowinglyor intentionally aids, induces orcauses another person to commitan offense.” Id. at 10-11. The Courtconcluded this instruction was fun-damentally erroneous because itfailed to say the State must proveRosales acted with the specificintent to kill when he knowingly

or intentionally aided, induced orcaused his accomplice to attemptmurder. The State compoundedthis error by repeatedly insistingduring closing argument that spe-cific intent to kill was not requiredfor accomplice liability to attempt-ed murder. Id. at 9. Thus, the Courtreversed Rosales’ conviction andremanded for a new trial.

No double jeopardy where jury hung on greatercharges, judge withheld judgment on lesser convictionsand ordered retrial

In Cleary v. State, 23 N.E.3d664 (Ind. 2015), a defendant’s dou-ble jeopardy rights were not violat-ed by retrial when the trial courtrefused to enter a previous juryconviction on lesser includedoffenses into judgment. The jury inCleary’s first trial was deadlockedon felony charges of driving whileintoxicated causing death, butfound Cleary guilty of misde-meanor charges. Indiana’s impliedacquittal provision, Ind. Code §35-41-4-3(a), does not apply when thejury returns a guilty verdict on alesser-included offense but dead-locks on the greater charge. Id. at670. Because the jury affirmativelydeadlocked on the greater offensein Cleary’s first trial rather thanremaining silent on those counts,Ind. Code §35-38-1-1 did notrequire a judgment of conviction to be entered on the lesser offenses,and the implied acquittal provisionwas not implicated. Id. at 670-72(following Haddix v. State, 827N.E.2d 1160 (Ind. Ct. App. 2005)).

Despite Garrett v. State, 992N.E.2d 710 (Ind. 2013), whichbroadened the application ofIndiana’s double jeopardy prohibi-tions, the Court rejected Cleary’sargument that Indiana’s doublejeopardy clause barred retrial afterthe guilty verdict on the lesser mis-demeanor offenses. Cleary’s second

CRIMINAL JU

STICE N

OTES 1/15

Synthetic drugs, accomplice testimony, other holdingsBy Jack Kenney


trial on the greater offenses thatdeadlocked the first jury was “sim-ply a continuation of the jeopardy.”Cleary, 23 N.E.3d at 674.

Synthetic drugs – vagueness

A criminal statute may beinvalidated for vagueness if it failsto provide notice enabling ordinarypeople to understand the conductthat it prohibits. In two recentcases, the Indiana Court of Appealsheld that the statutes making pos-session and dealing of a syntheticdrug crimes are unconstitutionallyvague when the synthetic drugalleged is not listed in the IndianaCode and can only be found in the Pharmacy Board Regulations.See Ashfaque v. State, 25 N.E.3d 183(Ind. Ct. App. 2015) and Tiplick v.State, 25 N.E.3d 190 (Ind. Ct. App.2015).

The defendants were chargedwith Class D felony dealing in asynthetic drug and Class D felonypossession of a synthetic drug,alleged to be XLR11. The statutes ineffect at the time of the defendants’offense listed more than 60 specificchemical compounds under thedefinition of synthetic drug andincluded 11 sections regardingcompounds “structurally derived”from other chemicals. Further, it included “[a]ny compounddetermined to be a synthetic drug by rule adopted” by the Pharmacy Board.Ashfaque, 25 N.E.3d at186. XLR11 is not listedin the statutes, but ratherdeclared a “synthetic sub-stance” by the PharmacyBoard Emergency Rule.Id. at 187.

The Court of Appeals concluded that the linguistic confu-sion between “syntheticdrug” and “synthetic substance” only adds


Jack KenneyDirector of Research & PublicationsIndiana Public Defender CouncilIndianapolis, [email protected]

RG 05.15_RG 09.05 5/21/15 9:27 AM

to the vagueness of this statutoryscheme. To require citizens to“meticulously weave through thelabyrinth of criminal statutes,administrative code provisions, and not-yet-codified agency rules is inconsistent with the ‘process’our Founding Fathers believed we were due before being chargedwith criminal offenses.” Id. As such,the court held that the statutes, as applied to the defendants, wereunconstitutionally vague and thedenial of their motions to dismisswas an abuse of discretion. In soholding, both opinions distin-guished Kaur v. State, 987 N.E.2d164 (Ind. Ct. App. 2013) and Elversv. State, 22 N.E.3d 824 (Ind. Ct.App. 2014), because those cases didnot deal with synthetic drugs iden-tified only by the Pharmacy BoardEmergency Rules. Id. at 188.

Chief Judge Vaidik dissentedfrom the majority opinion inAshfaque, expressing her belief thatthe statutes are not too complex or overly broad. In addition, sheagreed with Judge Bailey’s dissent-ing opinion in Tiplick that themajority opinion permits ignorance

of the law to be a defense. Tiplick,25 N.E.3d at 197.

Accomplice’s testimony inadmissible as fruit of poisonous tree

In N.S. v. State, 25 N.E.3d 198(Ind. Ct. App. 2015), the trial courtabused its discretion in admittingmarijuana and a gun found in abackpack as well as an accomplice’stestimony establishing N.S.’s pos-session of the contraband becauseboth the physical evidence and theaccomplice’s statement were fruitsof an illegal search. Further, therewas no source independent of theillegal search for the accomplice’sstatement. After locating a stolencar at a gas station, a police officerarrested D.M. (the accomplice) andN.S., who sat in the back seat nextto a backpack. The officer searchedthe backpack and found the contra-band. The trial court initially sup-pressed the contraband and testi-mony, but later admitted the evi-dence after letting D.M. testify thatbefore he and N.S. stole the car, (1) he saw marijuana in N.S.’sbackpack, and (2) he and N.S.

broke into another car from whichN.S. stole a pistol, which he put in his backpack. Id. at 201. The trialcourt found N.S. committed actsthat would be Dangerous Posses-sion of a Firearm and Possession of Marijuana if committed by anadult.

The State conceded that the marijuana and the gun wereobtained through an illegal searchand thus were inadmissible. Thecourt concluded that D.M.’s testi-mony was likewise inadmissible.While D.M.’s knowledge aboutN.S.’s possession of the contrabandcame from a source independent ofthe illegal search, the police did nothave a source independent of theillegal search for their knowledgeabout the contents of the backpack.Id. at 201-02. Citing Clark v. State,994 N.E.2d 252 (Ind. 2013), thecourt reversed N.S.’s delinquencyadjudication.

Sentencing discretion – court’s disagreement with jury verdict

A defendant must be sentencedbased on the crime for which he was found guilty. The IndianaSupreme Court has repeatedlyfound an abuse of discretion wherethe trial court made a statement atthe sentencing hearing expressingdisagreement with the jury’s deci-sion to acquit the defendant of agreater offense. See, e.g., Gambill v.State, 436 N.E.2d 301 (Ind. 1982);Hammons v. State, 493 N.E.2d 1250(Ind. 1986). However, this ruledoes not apply to charges dismissedpursuant to a guilty plea. See Betheav. State, 983 N.E.2d 1134 (Ind.2013).

In Phelps v. State, 24 N.E.3d525 (Ind. Ct. App. 2015), the trialcourt abused its discretion when it imposed the maximum sentencefor Class C felony cocaine posses-sion after expressing disagreementwith the jury’s verdict acquitting

CRIMINAL JUSTICE NOTES 1/15 continued from page 39


RG 05.15_RG 09.05 5/21/15 9:27 AM

Corey Phelps of a Class A felonydealing charge. At sentencing, thetrial court expressly disagreed withthe verdict and said that Phelps’attorneys “did a really good job” of confusing the jury. Id. at 527.The trial court then sentencedPhelps to the maximum of eightyears. Although the presence ofvalid aggravating circumstancessuch as Phelps’ criminal history and probation violations wouldotherwise justify an enhanced sen-tence, this “does not wash away thestain left by [the] trial court’s bla-tant disagreement” with the jury’snot-guilty verdict on the greatercharge, rendering the maximumsentence “a suspect enhancement.”Id. at 528-29. Thus, the courtrevised Phelps’ sentence to six yearsin the Department of Correction.Id. at 529.

Strong smell of marijuana justified warrantless strip search incident to arrest

In White v. State, 25 N.E.3d107 (Ind. Ct. App. 2015), a stripsearch of Michael White at theMarion County Arrestee ProcessingCenter following his lawful arrestfor leaving the scene of an accidentdid not violate his Fourth Amend-ment rights. Although his underly-ing arrest constituted a misde-meanor, the strip search was justi-fied because of the police officers’“reasonable suspicion that weaponsor contraband would be introducedinto the jail due to the lingeringodor of raw marijuana whichengulfed White” even after havingbeen transported to the jail. Id. at 540-41 (citing Bell v. State, 13 N.E.3d 543, 546 (Ind. Ct. App. 2014)) (noting that odor of raw marijuana indicates that it has not been smoked and there-fore still may be in the defendant’spossession). �


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5. Having ‘under the table’agreements with chiroprac-tors, pain doctors, etc., for referrals

I hesitate to even mention this issue because I hope it’s nottrue. As I have tried to emphasize in this article, I highly respect theoverwhelming majority of my colleagues on the other side of thecourtroom and believe that theyethically and fully represent theirclients. As I am not an ethicsexpert, I will not speculate whetherthese “referral agreements orarrangements” are ethical or legal.All I know is that they smell bad. As my ethics professor told me, if itsmells bad, don’t do it. Every timesuch an arrangement is discovered,whether ethical, valid or not, it callsinto question everything about thatclient’s treatment and case. Again, I am not judging whether theseagreements/arrangements are ethi-cal or valid, I am just emphasizingthat they do not smell good andthey do not help your credibility or your client’s case.

What drives me crazy about defense lawyers?

1. Acting like it’s your money

Even though we’ve sued yourclient as an individual, we knowthat usually an insurance carrier isinvolved. It’s the insurance carrierwho will ultimately pay any settle-ment or judgment that comes outof the case. So, there’s really noneed to act like you are going to bewriting the check. The money isn’tcoming out of your bank account.You’re not going to have to cancelyour family vacation to Floridabecause you have to pay my client$15,000 for his personal injuryclaim. Don’t make it personal. This is business, and insurancecompanies are in the business of paying these claims.

2. Requesting or subpoenaingall of plaintiff ’s medicalrecords dating back more than 10 years

Obviously, if you believe my client has a preexisting injury,you’re going to want to get themedical records to demonstratethat. But do you really need myclient’s gynecological records fromwhen she was 15? What does thathave to do with her neck injury thatshe suffered when she was 39? Evenmedical records from a family doc-tor aren’t particularly persuasive in showing a preexisting injury if they’re more than 10 years old. As a practical matter, most of ushave complained about back painor neck pain to our doctors at onepoint in our life. I think you wouldbe hard-pressed to find anyone whohasn’t injured those parts of theirbody at some point or another.However, complaining to yourfamily doctor about a backache 20 years ago doesn’t mean that you didn’t suffer an injury to yourback when you were rear-ended last year. Be reasonable with theserequests.

3. Taking unnecessarily long depositions

In preparing my clients fortheir depositions, I always explainto them that by filing a lawsuit theyopen up their lives to scrutiny bythe other side. I try to tell them thatthey’re going to be asked aboutthings that they wouldn’t dreamwould be relevant to the car wreckthat is the subject of the lawsuit,but they will be expected to answerthese questions. I tell them thattheir deposition will probably takean hour and a half to two hours.Unfortunately, when questionsabout their employment historydating back to their first job in highschool come up, my time estimategoes out the window. I understandthat the plaintiff’s deposition is the defense attorney’s one shot

at talking to my client, and so he or she will want to be as thoroughas possible during questioning.However, six hours of asking myclient about everything from priorcar wrecks to homeowner’s insur-ance claims is a bit excessive.

4. Unnecessary motions, e.g.,discovery motions, summaryjudgment, etc.

I try my best to answer discov-ery requests within the timeframeallotted by the Indiana Trial Rules.If it looks like I’m not going to beable to get my responses finishedon time, I will ask for an extension.The flipside of that is that I will give the same courtesy to opposingcounsel if they request it. If myclient’s discovery responses areoverdue, and I haven’t contactedopposing counsel about an exten-sion, chances are I’ve overlookedsomething or the due date hasn’tmade it onto my calendar. Ratherthan filing a Motion to CompelDiscovery, try giving me a call first.Courts don’t want to be botheredwith petty discovery disputes, especially if the attorneys couldresolve the matter by just talking.

Additionally, not every case is appropriate for summary judg-ment. In fact, if it’s a negligencecase, it’s more likely the case is not appropriate for summary judg-ment. These motions require a considerable amount of time andwork – from counsel drafting andresponding to the motions andfrom courts holding hearings and drafting findings of fact andconclusions of law. It would be niceif defense attorneys would weighthese factors when deciding to filedispositive motions.

5. Unnecessary delays w/settle-ment checks and releases

When we’ve agreed to settle acase, please just send me the settle-ment check and the settlementrelease at the same time. That way,

FAIR COMMENT continued from page 46


RG 05.15_RG 09.05 5/21/15 9:27 AM

my client only has to come in onetime to sign all the closing paper-work. Unfortunately, what hasstarted to happen is the settlementcheck doesn’t even get ordereduntil I send a signed settlementrelease back to opposing counsel.My clients have a hard time under-standing why we settled at media-tion three weeks ago, but they still don’t have their money. You would think once a settlementis reached, the parties would work to bring the matter to a speedyclose. Unfortunately, in this situa-tion the settlement process can take as long as, if not longer than,the actual litigation.

Another problem I’ve run into lately is when I finally receivethe settlement check, it has not onlymy client’s name and my firm’sname, but also the name of eachand every lien holder on it. In somecases, they’ve even sent me separatechecks made payable to every lienholder. This is particularly disturb-ing to me because it implies that I won’t satisfy outstanding lienswithout them being listed on thecheck or written as separate checks.I don’t have a history of failing topay back liens, and I wouldn’t havea very long career if that was myusual practice. Perhaps some ofthese defense attorneys, or eventheir insurance carrier clients, havebeen burned before, and this is howthey choose to handle it. However,this approach assumes I’m incom-petent or, even worse, unethical. A better practice would be toaddress payment of the liens in thesettlement release. With the excep-tion of Medicare liens, which arehandled differently, this is a suffi-cient way to relieve defense counsel,and their clients, of any obligationto pay back these liens.

Conclusion

Attorneys, both plaintiff anddefense, have an ethical duty tozealously represent their clients.But zealous representation doesn’thave to be at the expense of profes-sional courtesy. Many of the situa-tions we’ve discussed can be reme-died with open communicationbetween attorneys on both sides.

If you practice insurance defense or plaintiffs’ work, chances areyou’re going to come up against the same attorneys over and overagain. It makes working on cases a lot more enjoyable, and ultimate-ly better for the clients, if bothattorneys understand the other’sposition and work together towarda resolution. �


RG 05.15_RG 09.05 5/21/15 9:27 AM


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FAIR COMMEN

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What drives you crazy? A conversation between a plaintiffs’ lawyer and a defense lawyer

By Amy R. Wheatley and Larry R. Church

aggressively and ethically pursue their client’s claim.However, when a lawyer, on either side, doesn’t knowhis case and hasn’t prepared his client for the mediationprocess, the likelihood of success is greatly diminished.This lack of potential success only heightens when aplaintiff shows up with new medicals and/or lost wagesat a mediation. Unless there has been an emergencythat required these records to not be promptly turnedover, these will not be considered in the mediation.

Further, when I am acting as a mediator, a lack of preparedness also hampers my role as a neutral since I’m having to educate the clients on issues thatshould have been covered before the session. Often,this creates an inaccurate thought in the minds ofclients that the mediator is actually advocating theother side’s position, as they have never heard the badfacts before. Simple rule: Be as prepared as you wouldbe if you were going to a more formal hearing. This isyour best shot to resolve your case – use it!

3. Failing to properly evaluate your claim,starting off every case with a policy-limits offer

This probably was repeated to me more by claimsadjusters than any other complaint. If you present apolicy-limits offer on a small case, then you are goingto receive an equally ridiculous counteroffer, and thecredibility of you and your case has likely greatlydiminished. As with all of these “complaints,” I under-stand that you do not want to “bid against yourself,”but starting out with a number that does not pass thelaugh test helps nothing. Start with a reasonable, well-thought-out demand, and you are much more likely to receive a reasonable, well-thought-out response.

4. Failing to investigate whether you havethe basis for a UIM claim before automaticallyadding one in every case

This is another complaint that claims adjustersmake on a far too regular basis. Again, I understandthere are some companies that refuse to provide theirpolicy information before suit, and in that situation I personally do not think they can then reasonablycomplain about the inclusion of an invalid UIM claim in a complaint. However, if the information isout there and available, go get it before you file. Filingan unnecessary and inappropriate UIM claim helpsnothing and harms your credibility with the insurancecompany and the defense lawyer who ultimately holdthe checkbook on not only this case but with hope on future cases as well.


Big Things Come From Small FirmsSponsored by the ISBA General Practice, Solo & Small Firm Section

Members of the plaintiffs’ bar and defense baroften spend more time together than eitherdo with their own partners or even with

their families. Just like most families, we often driveeach other crazy. Most of these misunderstandings sim-ply come from a failure of each to understand the moti-vations or needs of the other. It is hoped this article will help alleviate some of these misunderstandings andease the attendant frustration between the two sides ofthe courtroom by educating each side about the other.Many of these “complaints” are completely avoidable.Further avoiding unnecessarily doing these things that drive the other side crazy will surely increase yourcredibility with your brothers and sisters on the otherside of the courtroom and ultimately aid your clients.

What drives me crazy about plaintiffs’ lawyers?

1. Failing to provide Stanley v. Walkerwrite-off information

Okay, I get it – plaintiffs hate Stanleyv. Walker. Plaintiffs think Stanley v.Walker is unfair and bad law. However, it is the law of the Indiana Supreme Courtand must be applied in all appropriatecases. The quicker the defense receivesaccurate Stanley numbers, the quickerthey will evaluate your case and the quick-er your case moves toward resolution.Refusing to provide access to the Stanleynumbers only delays the resolution, eitherthrough trial or settlement of your client’scase.

2. Failure to be adequately preparedat mediation and/or failingto adequately educate yourclient about his or her case

This problem seems to be occurringmore and more as mediation becomes thestandard in the resolution of civil cases. As lawyers have become accustomed totheir cases being referred to mediation andthe majority of cases resolving in media-tion, it seems that the level of preparationhas declined. In my experience, the over-whelming majority of plaintiff lawyers are prepared for mediation, and they

Larry R. ChurchMcNeely Stephenson

New Albany, [email protected]

Amy R. WheatleyThe Law Office of Nick Stein

New Albany, [email protected]


RG 05.15_RG 09.05 5/21/15 9:27 AM

res gestae - may 2015

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