Res Gestae - April 2015

DIVERSIFYINGYOUR PORTFOLIOOF MENTORINGRELATIONSHIPS

WANTED: 60 MENTORS IN 60 DAYS! GOVERNMENT TAKES CENTER STAGEDURING LDA SESSION

April 2015 Vol. 58, No. 8

EDITORSusan J. Ferrer

[email protected]

GRAPHIC DESIGNER & PHOTOGRAPHER

Vincent [email protected]

ADVERTISINGChauncey L. Lipscomb

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Joseph M. PellicciottiWilliam A. Ramsey

[email protected]

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

10 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

21 RECENT DECISIONS 11/14Curtis T. Jones and John Z. Huang, Indianapolis

33 RECENT DECISIONS 12/14D. Lucetta Pope and Larry E. LaTarte, South Bend

42 CRIMINAL JUSTICE NOTES 12/14Prof. Joel M. Schumm, Indianapolis

46 FAIR COMMENT: “60 MENTORS IN 60 DAYS!”Justice Steven H. David, Zionsville

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 GESTÆApril 2015 Vol. 58, No. 8

D E PA R T M E N T S8 LDA AT THE STATEHOUSE

14 MENTORING

RES GESTÆ • APRIL 2015 3

F E AT U R E S

8 GOVERNMENT TAKES CENTER STAGEDURING LDA SESSIONBy Bill Brooks, Indianapolis

14 DIVERSIFYING YOUR PORTFOLIO OF MENTORING RELATIONSHIPSBy Brita A. Horvath, Indianapolis

25 LEGAL ETHICS COMMITTEE OPINION NO. 1 OF 2015Participation in discriminatory organizations – the scope of Rule 8.4(g)

25 CONDUCT

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When the Indiana Lawyer ran a storyin December about the IndianaState Bar Association’s legislative

proposal for a new statute of repose, the storyquoted me as follows:

ISBA President Jeff Hawkins said the proposal to limit the timeframe for malpractice was devel-oped by the bar’s Probate, Trust & Real PropertySection, driven in part by difficulties retiringlawyers faced planning for potential liability.“Their eyes were bulging when they found outhow difficult it would be to get potential liabilitycoverage for the rest of their lives,” Hawkinssaid.

“They found they could not be responsibleenough. The insurance industry didn’t have asolution to address a potentially open-endedresponsibility.”

Soon after the article’s appearance, I hadan enlightening conversation about the sub-ject with Jennifer Ritman, founder and presi-dent of Ritman & Associates, the State Bar’sendorsed professional, business and personalinsurance agency. Jennifer explained that heragency has helped many retiring and disabledlawyers obtain professional liability coveragefor prior acts and omissions. That conversa-tion led me to seek her help in dispelling pro-fessional liability insurance misconceptionsthrough a Q&A installment of this month’s“President’s Perspective.”

Hawkins: Jennifer, thank you for helping me clear the air on this important insurancesubject. As my quoted comments indicated, I thought a retiring lawyer would have to payprofessional liability insurance premiums forlife in order to maintain “prior act” profes-sional liability coverage. How was I mistaken?

Ritman: Most claims-made policies offerExtended Reporting Period (ERP) options. So what is an ERP? You somewhat have tostart at the beginning to understand what aclaims-made policy is, Jeff, and your com-ment about having to pay premiums for life is why the carriers do, in most cases, offerERP options. Claims-made policies basicallyread: “You have to have a policy in place atthe time the claim is made.” This is where themisunderstanding and difficult maneuveringof these policies begin. If you have to have a policy in place to report, then how do youretire, merge or laterally move to anotherfirm? This is where the ERP comes in – it doesexactly that – it extends the period of time toreport from an expiring policy. So, in order

for you to not keep paying premiums whenyou retire, you obtain an ERP so that youhave more time to report claims/incidents inthe future for work you did in the past thatwould’ve been covered by the expiring policy.

The question: Does the policy offer theERP only for the entire firm, or does the poli-cy offer the ERP to individual members of thefirm? There is generally more than one type of ERP as well. One of our favorite carriershas the following types available: Option toPurchase Optional ERP, Option to PurchaseNon-Practicing ERP and, believe it or not,Option to Elect Non-Practicing ERP at noadditional premium.

Hawkins: In what kinds of situations shouldlawyers seek tail coverage?

Ritman: The term “tail” coverage is often misunderstood or used to label multiple typesof coverage. Some folks refer to an ERP as tailcoverage, and some folks refer to tail coverageas “prior acts” coverage. You always want to maintain your “prior acts” coverage if youcan, and you certainly want to elect ERP cov-erage when retiring. You may need to pur-chase ERP coverage if your firm is mergingwith another firm and the new carrier will not provide “prior acts” (tail) coverage. Thereare ways generally to get this type of coverageunderwritten, but you have to know how to maneuver the carriers to get this done.

Hawkins: Are there any differences in thecoverage effects and claims proceduresbetween tail coverage claims and claims during active practice? For instance, can the carrier drop coverage after a tail claim?

Ritman: Once ERP coverage is issued, it isnon-cancellableby the carrier andnon-renewable bythe purchaser. So acarrier cannot can-cel your ERP onceissued, and this is generally why if there’s a charge

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 • APRIL 2015 5

PRESIDENT’S PERSPECTIVEJEFF R. HAWKINS

[email protected]

Professional liability insurance coverage:setting the record straight

(continued on p. 7)

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associated with the ERP it has to be paid in full up front, prior toissuance. Limits of liability cancome into play here if you have an ERP with $1 million in coverageand you have a claim or claims thatexhaust that limit. Then, simplyput, the limit is exhausted, and you would have no further cover-age.

A claim attached to an activepolicy versus a claim attached to an ERP policy should have no dif-ference in how the claim is handled.However, a claim on an active poli-cy could trigger rate increases or the potential of being non-renewed.

Hawkins: What else should lawyersknow about tail coverage?

Ritman: You really have to under-stand the complexity of claims-made policies, how they work and what ERP options your carrieroffers. You do not want to be in aposition where you are getting closeto retirement and you continuallyshop and carrier jump to save a fewdollars. You want to plan with youragent in advance for things likeretirement so that your agent can guide you to the best solution.Maybe you are one year away from retiring, and you’ve been withABC insurance company the lasttwo years, and the carrier is talkingrate increase. Don’t just immediate-ly shop and move your coverage.You may be better served to pay theincrease for the additional year of

coverage and be able to elect theERP at no additional premium at the end of the next policy period.

Hawkins: Thank you, again,Jennifer! Your responses have confirmed to me the value of thisdiscussion. I encourage ISBA mem-bers to follow up with Ritman &Associates about specific profes-sional liability insurance questions

PRESIDENT’S PERSPECTIVE continued from page 5


and check with the ISBA staff aboutall of our membership benefits andendorsed service providers. A com-plete listing of ISBA membershipbenefits and endorsed serviceproviders appears on the ISBA website at http://tinyurl.com/ISBA-member-benefits (once you’vesigned in, discount codes & suchare revealed to you). �

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If any of the 16 women who arepart of the current 25-memberLeadership Development

Academy (LDA) class were lookingfor role models, they came to theright place when they attended theacademy’s second session at theIndiana Statehouse in downtownIndianapolis.

They heard from Indiana ChiefJustice Loretta H. Rush. They heardfrom Judge Jane E. Magnus-Stinsonof the U.S. District Court for theSouthern District of Indiana. Andthey sat in on an Indiana Court ofAppeals oral argument presidedover by Chief Judge Nancy H.Vaidik, who was making her second appearance at the academy,having spoken to the group at theopening retreat a month earlier.

Women role models, womenwho bear witness by their careers of the achievement possible in thelegal profession – this particulardevelopment wasn’t entirely intentional. The LDA Committee,chaired by Judge Thomas J. Felts of the Allen Circuit Court, strives for a diversity of respected speakers.What developed in mid-Februarywas a program accented by womenof distinction.

Speaking in separate sessions,each brought similar messages tothe 25 attorneys.

“Your reputation is just huge,”said Chief Justice Rush, who coun-seled the attorneys to always be

prepared. “You say somethingincorrect, or close to incorrect, to a judge – well, judges talk to each other.”

She also advised the attorneysto be careful with social media, not-ing the scrutiny she went throughin the Supreme Court selectionprocess. How many young attor-neys, she wondered, would be com-fortable with anyone going throughall of their social media postings?

Rush, a former juvenile courtjudge who has a deep and abidinginterest in justice for children, said she was most struck by theresponse of one young man whenshe asked what “character” meant?“Character is doing the right thingwhen no one’s looking,” the young-ster responded.

Magnus-Stinson, too, spokeabout the importance of character.“Your word is all you have,” shesaid. “Your reputation is all youhave.” In addition, she pointed outthe significance of family, a subjectalso important to Chief JusticeRush.

Raising four children, Rushsaid, was her proudest achievement.“You can lose yourself in the job,”she said, noting that the mostimportant factor in a career is bal-ance – not billable hours. “Whensomeone tells me, ‘I billed 2,500hours last year,’ I think, ‘pooryou.’”

Both jurists spoke to the needfor, as Magnus-Stinson said, “con-necting the dots among people.”She stressed the benefits of probono work as well as the impor-tance of mentoring. Rush said get-ting involved with the bar associa-tion early on was key to her career,allowing her to meet more attor-neys and pick up more mentors.

Also, “we need more lawyers in the legislature,” she added. “Weneed lawyers on city councils, onschool boards, on church boards.”

Magnus-Stinson had a mentorstory to tell as well. She said whenshe became a judge on the MarionSuperior Court, without any expe-rience on the bench, she called “Pat Gifford, the most respectedcriminal court judge in the state,and asked her to be my mentor.”

Other highlights of the two-day Leadership DevelopmentAcademy session included:

• A panel discussion titled “How to Run For (or Away From)Office,” featuring Tom Easterday of Subaru of Indiana Automotive,Inc., Lafayette; former State Rep.Ralph M. Foley, Martinsville;Marion Superior Court JudgeHeather A. Welch; and Daniel L.Askren, Attica, a graduate of the2014 Leadership DevelopmentAcademy who ran for FountainCounty prosecutor while the academy was in session.

• A discussion about the ISBA,which featured Executive DirectorThomas A. Pyrz; President Jeff R.Hawkins, Sullivan; President-ElectCarol M. Adinamis, Westfield; and Matthew J. Light, Indianapolis,chair of the State Bar’s YoungLawyers Section and a LDA graduate.

• A talk by Indiana AttorneyGeneral Gregory F. Zoeller, whojoined the group for lunch alongwith other dignitaries such asIndiana Solicitor General ThomasM. Fisher; Indiana InspectorGeneral Cynthia V. Carrasco, who is also an LDA grad; SupremeCourt Justices Robert D. Rucker,Steven H. David and Mark S.Massa; and Chief Judge Vaidik with some of her colleagues on theCourts of Appeals, Judges Ezra H.Friedlander, L. Mark Bailey andMelissa S. May.

• A session on media relationsand crisis communications, which was moderated by ISBA Past President James W. Riley,Indianapolis, and included reporter

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Rafael Sanchez of RTV6, JenniferDzwonar of the Indianapolis-basedBorshoff agency and Terry W.Tolliver, deputy director of theAG’s consumer protection divisionand another academy grad as wellas a member of the LDA’s organiz-ing committee. Among the lessons:Don’t wait until the phone rings to develop a media strategy. Buildrelationships with members of themedia. Understand the differencebetween “off the record” and“background.” (The latter is strongly preferable to the former.)And don’t run and hide while the24-hour news cycle grinds on.

• The well-oiled machine that is the Leadership DevelopmentAcademy did have a little enginetrouble during the Statehouse session when a planned gatheringwith several legislators fell throughbecause the Indiana GeneralAssembly was absorbed in floor sessions confronting the crisisinvolving ISTEP testing. But theever-intrepid LDA Committee hada backup plan. Lesley A. Crane,

the House Speaker’s chief of staff,and Jeffrey L. Papa, the Senate chiefof staff, had been invited, and theywere able to attend. The LDACommittee added a few bar stars of its own (Justice David, JudgeFelts, Jim Riley and ISBA PresidentJeff R.Hawkins) to round out thesmall group discussions. Crane andPapa fielded questions about crisismanagement, the legislative processand the role of attorneys in the leg-islature, while the others talkedabout the importance of attorneyengagement in government,whether they run for office or not;the merits of networking; and beinginvolved in one’s bar association.

Then, in a brilliant off-scriptmove, the committee decided toshow the LDA class what state government in action looked like.They walked down the halls of theStatehouse and into the Senategallery to observe the Senate in ses-sion – where, lo and behold, thosesame lawyer-legislators who hadbeen invited to attend the LDA discussion were hard at work,

using their legal skills to argueagainst a piece of legislation that would affect litigation. Thisimpromptu addition to the day wasan instant favorite among academymembers, as it provided a real-world demonstration of what, until that point, had simply been a discussion about the importanceof lawyers in the legislature. �


ISBA Pres. Jeff R. Hawkins (center) discusses the importance of engagement with the legislature with members of the LDA.

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Prof. Monroe Freedman diedon Feb. 26 at the age of 86.He was a true giant in the

field of legal ethics. He was deeplyengaged in legal ethics well beforethe “Where were the lawyers?”question spawned the post-Watergate revival of legal ethics.His passing was noted in majorobituaries in both the New YorkTimes and theWashington Post –pretty impressive for someonewhose life’s work was largely devot-ed to debates within a professionalniche. Yet he grappled with impor-tant questions that had deep impli-cations for the administration ofjustice in our society.

He was a professor of law and former dean of the HofstraUniversity Maurice A. DeaneSchool of Law, the home base forhis extraordinary career in the law.At the time of his death, he was stillteaching, writing and actively play-ing his longstanding role as legalethics gadfly and provocateur. He was active to the end as a co-blogger on Legal Ethics Forum,one of the go-to blogs for bothethics geeks and dabblers in thefield.

I did not count Prof. Freedmanas a personal friend, although I methim on several occasions and hadthe pleasure of hearing him speak.However, many years ago some-thing I wrote caught his attention,

and I later received ahandwritten note fromhim commenting onit. Thereafter, I beganregularly receivingenvelopes in the mailfrom him containinghis latest publication,occasionally accompa-nied by a short personal note.

Prof. Freedman was a passion-ate believer in the imperative ofundivided loyalty to clients, espe-cially when they were alignedagainst the power of the State. He wrote often and famously on this theme. Perhaps he is bestknown for his dissection of the ethical fault lines within what he called the perjury trilemma. A lawyer finds herself in a perjurytrilemma when a client is expectedto give or has given perjured testi-mony. The horns of the perjurytrilemma are these: lawyers are ethically obliged to know as muchabout their clients’ cases as they can and to advocate zealously for them; lawyers must keep theirclients’ confidences; and lawyers are obliged to protect tribunalsfrom being infected with false testimony. Prof. Freedman’s classic discussion of the topic firstappeared in his seminal article“Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions,” 64 Mich. L. Rev. 1469 (1966).

Client perjury presents atrilemma because a lawyer cannotfulfill all three duties. By knowingas much as possible about theclient’s case, the lawyer may welllearn that what the client plans tosay in court is not true. By avoidingknowledge, the lawyer is not actingzealously and competently for theclient. By informing the court that a client plans to commit, is com-mitting or has committed perjury,the lawyer breaches the duty ofconfidentiality and violates theclient’s trust.

Lawyers who have faced thistrilemma in real life know that it isthe stuff of sleepless nights. That’sbecause there is no perfect solutionthat respects all of the lawyer’s con-flicting duties. We have constructedsome purported “solutions,” but

they are not solutions at all. If thelawyer avoids knowing the factsthat would reveal client perjury, the client will still testify falselywithout the lawyer’s plausible com-plicity, but the tribunal will still beinfected with perjured testimony. If the lawyer informs the court, notonly has client confidentiality beenbreached, the lawyer, in fairness to the client, might need to tell theclient that being candid with thelawyer means the lawyer will haveto inform the court about anticipat-ed or completed perjury. That isunquestionably a signal to clients tocensor what they tell their lawyers.If the lawyer withdraws when thelawyer knows or suspects the clientwill commit perjury, the client willhave been educated to know not tobe so honest with his next lawyerand will then be free to commitperjury without that lawyer’sknowledge.

One popular solution is allow-ing the client to testify using narra-tive testimony. That is, the client is asked a “what happened next?”question, whereupon the lawyersteps back and allows the client totestify without the lawyer directlyasking a question that will extractperjured testimony. Ironically, we somehow think this is the leastbad solution, but it is probably theworst. The client still lies throughhis teeth; the lawyer knows theclient is lying; the court and thejury are still exposed to false testi-mony; and unless they are idiots,they know darned well from thecircumstances that the client islying.

The narrative solution dishon-ors every ethical value in play in the perjury trilemma. The lawyer is disincentivized to learn facts thatreveal client perjury. The lawyer’sswitch to the narrative format usesa wink and a nod to reveal clientconfidences. The lawyer does not

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Monroe Freedman (1928-2015): the passing of a legal ethics giant

By Donald R. Lundberg


Donald R. LundbergBarnes & Thornburg LLP

Indianapolis, [email protected]

RG 04.15_RG 09.05 4/16/15 2:23 PM

act as the client’s zealous advocate.And the court is still exposed toperjured testimony.

The Rules of ProfessionalConduct provide their response to the perjury trilemma. It is a solu-tion, but it is not one that respectsall of the ethical values in play. Thesolution is found in Rule 3.3(a)(3):“A lawyer shall not knowingly offerevidence that the lawyer knows tobe false. If a lawyer, the lawyer’sclient, or a witness called by thelawyer has offered material evi-dence and the lawyer comes toknow of its falsity, the lawyer shalltake reasonable remedial measures,including, if necessary, disclosure tothe tribunal. A lawyer may refuse tooffer evidence, other than the testi-mony of a defendant in a criminalmatter, that the lawyer reasonablybelieves is false.”

Rule 3.3(a)(3) deals the trumpcard to the duty of candor to thetribunal. It is true, especially incriminal cases, that the lawyer hasto get all the way to “knowledge”before she is compelled to act. And“knowledge” means actual knowl-edge of the fact in question, albeitinformed by inferences drawn fromthe circumstances. Rule 1.0(f). Butat that point, the duties of clientconfidentiality and zealous repre-sentation must yield to duties to the tribunal. While the solution ofthe Rules of Professional Conductis both orthodox and compulsory,it is an imperfect solution thatbuilds tensions into the attorney-client relationship. The thought oftelling a court that a client has com-mitted perjury is so repulsive tomost lawyers that they engage alltypes of mental gymnastics to avoidfinding themselves in the positionof actually knowing the client plansto commit or has committed per-jury. In doing so, effective advocacysuffers.

Prof. Freedman thought that amidst the perjury trilemma, if a value has to give way (which itmust) it should be the duty of can-dor to the courts. This was not, ofcourse, because he thought lying to courts was a laudable thing. In fact, he was clear that it wasalways unethical for lawyers toexpressly or by indirection coachclients to testify falsely. The lawyer

who is genuinely faced with a per-jury trilemma is the victim of hav-ing learned about client perjurybecause the lawyer has done a goodjob of understanding the client’scase. The trilemma is created by the lawyer’s passionate commit-ment to the lawyer’s role as cham-pion of the individual aligned


(continued on page 12)

RG 04.15_RG 09.05 4/16/15 2:23 PM

against the power of the State. Seen this way, in these circum-stances the lawyer is the one personwho should be, in the Freedmanview, the constant and unblinkingally of the client.

Prof. Freedman was not reti-cent about owning the implicationsof his position. He agreed thatlawyers are obliged to act compe-tently by confidentially counselingtheir clients about the legal impro-priety and, often, the tacticalimprudence of giving false testimo-ny – or the imprudence of testifyingat all. But once a fully counseledclient determines to testify in a waythe lawyer knows is false, the lawyerhas to be all in. In Prof. Freedman’sworld, lawyers should not be con-strained to use the flabby narrative-testimony approach as a dodge.Instead, they should be free to askdirect questions that they know willelicit perjured testimony. And theyshould be free, indeed required,

to argue that evidence in closing.Lawyers who withdraw under thesecircumstances are simply washingtheir hands of a difficult problemand passing it along to anotherlawyer.

Thoughtful and highly respect-ed legal-ethics experts disagree withProf. Freedman’s approach to theperjury trilemma. Indeed, most do. See, e.g., Stephen Gillers,“Monroe Freedman’s Solution to the Criminal Defense Lawyer’sTrilemma Is Wrong as a Matter of Policy and Constitutional Law,”34 Hofstra L. Rev. 821 (2006). As already noted, the Freedmanview lost out under the Rules ofProfessional Conduct and theweight of other professional opin-ion. And the U.S. Supreme Courthad little good to say about theFreedman position that a lawyer’sprimary duty is to the client whenother duties are in conflict. Nix v.Whiteside, 475 U.S. 157, 166 (1986)

(not ineffective assistance of coun-sel for lawyer to inform client that lawyer will disclose perjury to the court if client testifies falsely;“Although counsel must take allreasonable lawful means to attainthe objectives of the client, counselis precluded from taking steps or in any way assisting the client inpresenting false evidence or other-wise violating the law.”). But at the end of the day, even though theFreedman approach did not prevail,his critic Prof. Gillers noted, “Weare indebted to him for raising theissue and making us think hardabout the answer.”

Without the Freedman solu-tion to the perjury trilemma avail-able, lawyers are now left with thedifficult burden of thinking hardabout what they actually “know” as they grapple with the troublingprofessional responsibility issuespresented when a client might testify falsely. It is the outcome ofthat query that determines whetherwe must keep client confidences orturn into our own client’s informerand make a disclosure to the tri-bunal.

As we engage in that struggle,we should remember that we owe adebt to Prof. Freedman for shininga light on one of the most difficultquestions in legal ethics and forcontinuing to push against compla-cent attitudes that we had figuredout the answer. �

ETHICS CURBSTONE continued from page 11


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With an eye on saving thousands of dollars, the Indiana State Bar Association will begin invoicing membership dues electronically early next month. With the State Bar's new website and membership database, dues notices and reminders will be automatically sent to your email address. You can also print your membership card online!

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INVEST IN YOUR CAREER!

There is little doubt thatmentoring relationshipsare assets that provide

short and long term guidance andsupport. Like many other invest-ments, the candid exchange ofadvice and insights between men-tors and mentees increases in valueover time. By design, all mentoringrelationships are embedded withdifference as it relates to tenure,pairing a more experienced mentorwith a less experienced mentee.Often this distinction in tenure pre-sents generational differences thatthe mentors and mentees acceptfrom the outset, with both partiesequally benefitting from exposureto different generational experi-ences and approaches. Mentors andmentees alike identify these genera-tional differences as an enhance-ment to their mentoring relation-ship.

Beyond tenure, however, thereis a natural tendency for these rela-tionships to stem from general like-ness or affinity, though there aretremendous benefits from mentor-ing relationships that are not devel-oped out of obvious commonali-ties. The interviews below provideexamples of mentoring across dif-ference and feature mentor-menteepairings who participated in theIndiana State Bar Association’sMentor Match program. Through a series of conversations, the partic-ipants share how they have success-fully leveraged their differences andacquired greater access to a streamof candid and valuable insights and advice. After reviewing theseaccounts, it was evident that thesementor-mentee pairings consideredtheir relationships an importantfactor in their personal and profes-sional development and success.

In addition to generational differences, what other differ-ences were present in your men-toring relationship – e.g., race,gender, ethnicity, LGBT, disabil-ity, religion, socio-economic, geography, type of practice,education?

Senior Judge Kenneth H. Johnson(paired with Luminita Nodit): Our mentor-mentee relationshipcontained elements of nearly all of the above. I am male; she is female.She received her J.D. from what wasthen known as the I.U. School ofLaw-Indianapolis in May of 2010. I received my J.D. from the samelaw school in May of 1972. Sheearned a bachelor of laws degreefrom Alexandru Ioan Cuza LawSchool in Romania in 2000. Shestudied for her masters of laws(business law) from WestUniversity of Timisoara, Romania,completing most of her coursework before leaving Romania. She was a new lawyer, looking foremployment in a public or privatelaw firm. I, on the other hand, hadbeen on the superior court benchfor more than 35 years, so myknowledge of the inner workings of private law firms, when webegan, was very meager.

Lumi Nodit (paired with JudgeJohnson): When I graduated fromlaw school in 2010, I was somewhatreluctant to talk to male judges,especially trial court judges. Myprevious interactions with the judi-ciary were mostly with womenappellate judges. Reflecting on thepower paradigm – an experiencedmale judge and a job-seeking youngwoman lawyer with an accent – I was a bit intimidated before myfirst meeting with my mentor,

Diversifying your portfolio of mentoring relationships

By Brita A. Horvath


Senior Judge Kenneth H. Johnson, Indianapolis, served as the presiding judge of Marion Superior Court #2, Civil Division, for 30 years. He also served as master commissioner of the Superior Court’s Complex & Mass Tort Docket and co-authored the Mass Tort Docket Rules. According to Judge Johnson, during his many years on the bench, he was “fortunate to ‘employ’ more than 30 interns, young lawyers and law students.”

Lumi Nodit, Indianapolis, is a deputy attorneygeneral in the Consumer Protection Division of the Office of Indiana Attorney General. She is a graduate of Indiana University McKinneySchool of Law. Lumi is also a graduate of theIndiana State Bar Association’s LeadershipDevelopment Academy. She loves learning newlanguages and enjoys traveling, hiking, painting,gardening and rescuing pit bulls.

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the Hon. Kenneth Johnson. Preparing for our first meeting felt somewhat like preparing for a hearing, trying to anticipate thejudge’s questions and hoping todeliver.

Marion Circuit Court MagistrateMarcia J. Ferree (paired withBrandon M. Kimura): Geographic,cultural background and gender.Brandon was comparatively new to the Midwest and Indiana, while I have lived in Indiana myentire life. Brandon was born andraised in Honolulu, Hawai’i, andmoved to Indiana as an adult a fewyears ago. Our practice areas varied.Brandon was gaining tremendousappellate experience as an internwith the Indiana Court of Appeals,and he was looking forward toobtaining an associate position at a civil law firm. My experiencehas mostly been at the trial level as a solo practitioner and now as judicial officer.

Brandon Kimura (paired withMagistrate Ferree): Geographic and cultural background. I was bornand raised in Honolulu, Hawai’i. I was on the west coast for myundergraduate degree and back in Honolulu for law school. As webegan our mentoring relationship, I had been in Indiana for about oneand a half years. Magistrate Ferreehelped me adjust to the social andprofessional culture of the Midwestand Indianapolis. Our “practice”also varied because as a new gradu-ate clerking for the Indiana Courtof Appeals, I had a lot of ideasabout different practice areas andworking environments, but littleexperience. Magistrate Ferree washelpful in explaining to me her personal experiences in a variety of areas.

What were your concerns (if any) about your ability to fulfill the mentoring expecta-tions and execute your roleeffectively when you realizedyou would be mentoring or be mentored by this particular person?

Samuel R. “Chic” Born (pairedwith Aimee M. Gong): Concernsincluded big firm “guidance” v.small firm “on your own”; issuerecognition; and mentoring acrossgender differences (e.g., if a situa-tion arose where a female attorneyneeded advice on professionaldress, etc.).

Aimee Gong (paired with ChicBorn): I had been informed thatChic was (and still is) a well-knownand much respected attorney. I wasconcerned that I wouldn’t haveanything to contribute to the men-toring relationship.

Judge Johnson: I was greatly con-cerned how I could assist Lumi inthe challenges of private practice,having been on the bench for somany years. I discovered that a“view from the bench” is neither a bad nor necessarily limitingapproach. Matters concerning howto act in a courtroom, how to getmatters into evidence, the benefitsof civility to the court and opposingcounsel were topics we were able to cover.

My son is a deputy prosecutorwho practiced in a mid-sized lawfirm; he proved to be a wonderfulresource. I also counseled with anumber of other private practition-ers to gain a perspective I couldshare with Lumi.



Magistrate Marcia J. Ferree, Indianapolis, servesin the Marion Circuit Court, Paternity Division.She previously had a private practice and workedas a public defender representing indigent parentsin CHINS and termination of parental rightscases. Magistrate Ferree serves on the CivilBenchbook Committee of the Judicial Conferenceof Indiana and was chair of the ISBA YoungLawyers Section.

Brandon M. Kimura is the special assistant andcounsel to Chief Justice Mark E. Recktenwald of the Hawai’i Supreme Court. He was previously an appellate and trial attorney at Schultz & Pogue LLP in Indianapolis and a judicial clerk to Judge Margret G. Robb of the Indiana Court of Appeals. Brandon is a graduate of the ISBALeadership Development Academy.

This article is published as part of the ISBA Diversity Committee’s efforts and in consultation with fellow committee members Prof. Carlton M. Waterhouse and Renee A. Skeete.

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In order to mentor/be mentoredeffectively across difference,what formal or informal prepa-rations did you make, or whatresources or other experiencesdid you consult or draw upon?

Magistrate Ferree: I reviewed theMentor Match materials providedby the ISBA, and I reviewed theRules of Professional Conduct.

Judge Johnson: Mentoring Lumishowed me once again how differ-ent our system of laws was fromRomania’s and other systemsaround the world. The volume ofmaterials provided us was a terrificaid to our accomplishing all that we did. We used many of the recommended online resources,which, in turn, led to the discoveryof other materials to which wereferred. I thought it was importantthat Lumi quantify her growth andchanges throughout our relation-ship, so I asked her to keep a jour-nal of her journey throughout thisprocess. She did so faithfully, email-ing me copies after our meetings.

I also thought it was importantto see our mentees outside thementor-mentee relationship. I would recommend taking them to dinner with their spouse or sig-nificant other along with your own.It provides a time of personal shar-ing where great discussions of fami-ly, backgrounds of growing up in a foreign country, aspirations andconcerns are more easily brought to the fore.

Lumi Nodit: Before my first inter-action with Judge Johnson, I calledsome lawyer friends with litigationexperience to inquire about him. I was overwhelmed with their posi-tive responses. The materials pro-vided by the ISBA truly kept us ontrack. As our mentorship relation-ship developed, I discovered howmuch I enjoyed our discussions and meetings. Our discussionsspurred my interest in new areas

of law. I wanted to learn moreabout Judge Johnson’s asbestoswork, so I signed up for asbestosupdates on JD Supra. I was trulydelighted when Judge Johnsonextended an invitation to bring our spouses to a dinner meeting. I learned so much about mentor-ship, life, legal careers and differ-ences during our dinner conversa-tion.

What was the most challengingaspect of mentoring/being mentored across difference?How did you address it?

Lumi Nodit: Before our mentor-ship started, I was concerned thatJudge Johnson might not relate tomy experience – trying to pursue a legal career in a foreign country in the tough legal market of 2010.But the most challenging aspect ofbeing mentored by Judge Johnsonwas my unsound concern that hewould lack the patience to get usedto my accent. During our firstmeetings, I tried to speak louderand slower, and I tried to listenmore.

Judge Johnson: Probably the mostchallenging aspect with the lan-guage: Not that Lumi couldn’tspeak the Queen’s English, shecould. In just about any other pro-fession, pronouncing words with a heavy accent would be character-ized as cute or charismatic, butwhen speaking quirky legal termsbefore a legal tribunal, you have tobe more spot-on to be sure you areunderstood. Lumi has also experi-enced some gender-related issues in legal situations that I think wereexacerbated by her accent – by whatothers who had not heard her speakbefore characterized as a lack ofknowledge. We addressed it head-on. Lumi has an inner drive thatcauses her to want to be the bestperson and lawyer she can be, soshe worked very hard at everythingwe did. The challenge would have

MENTORING continued from page 15


S.R. “Chic” Born, Indianapolis, is a civil mediatorwith The Mediation Group LLC and formerly alongtime partner with Ice Miller LLP. Chic servedas president of the Indianapolis and Indiana Statebar associations, and was a member of the ABAHouse of Delegates for 10 years. He enjoys golf,travel, fly fishing and amateur auto racing.

Aimee M. Gong, Indianapolis, is an associate with Schultz & Pogue LLP and a graduate of Valparaiso University School of Law. She focuses her practice on medical malpracticedefense. Aimee is chair of the State Bar’s Animal Law Section and a graduate of the ISBALeadership Development Academy. She is alsoactive in the American Bar Association.

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been so much harder had she nothad such a positive, “can do” atti-tude. We shared a “whatever ittook” vision of immersing her intothe American/Indiana legal systemand community.

Magistrate Ferree: I did not find itchallenging. Our common interestin the profession of law – and howwe could positively influence theprofession, financially support our-selves and our families, serve othersand live well-rounded, healthy lives– impacted the mentoring processfar more than any of our innate dif-ferences. The impact that our dif-ferences had on the mentoringprocess was unremarkable.

Brandon Kimura: I did not find it challenging. Our schedules were a little difficult to coordinate attimes, but we worked it out andmade the most of the time we hadtogether.

Did you have any occasion to place yourself in your mentor/mentee’s shoes in order to understand a particular perspective?

Magistrate Ferree: Yes, I placedmyself “in his shoes” when thinkingabout how professional connec-tions are often made over timeand/or through mutually knownthird parties or family members.Many Indianapolis lawyers havedeep roots in the area and in thelegal profession. As someone fairlynew to Indianapolis, Brandon hadthe challenge of making connec-tions and building relationshipsthat would serve him throughouthis career.

Brandon Kimura: I’m particu-larly conscientious, sometimesmore than I should be. A side effectof this “condition,” though, is that I often place myself in others’ shoesin an attempt to understand theirperspective. I find that doing sooften helps me glean far more

information from a meeting thansimply what is said.

What are the most importantattributes of your relationshiptoday?

Chic Born: Friendship and trust.

Aimee Gong: Having an experi-enced attorney, mentor and friendfrom whom I can ask for advice


and insight. I also enjoy continuingto get to know Chic as a person.

Magistrate Ferree: Trust, mutualrespect and comfortableness are important attributes of our relationship.


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Lumi Nodit: The ability to call oremail Judge Johnson and ask himfor his advice is a gift.

What have you learned aboutmentoring across difference?

Judge Johnson: One of themost important things for me waskeeping an open mind – remem-

bering Lumi’s life experience.Seeing the world and the world of law through her eyes was verybroadening for me. We spent agreat deal of time talking about thewhys, whats and hows: Why wasthis law enacted? How was this casedecided? What purpose does thislaw have in how we enforce it or

how we help clients deal with it?And another important lessonlearned: remembering that mentor-ing is a two-way street.

Lumi Nodit: I learned that every-one brings their own cultural lensand experience into the relation-ship, which can challenge and trigger growth.

I learned once again not to pre-judge. All mentors and menteesenter into relationship across differ-ences with information and misin-formation, often based on individ-ual fears, stereotypes and prejudice.I feared that experienced malejudges would lack the patience to get acquainted with my accent. I was proven wrong.

Chic Born: To be imaginative. To be more open.

Aimee Gong: I have learned thatwhile there are differences in prac-tice backgrounds, age, etc., there is still common ground that can bediscovered. Chic has been a greatmentor, and I value his advice.

Brandon Kimura: Mentoring rela-tionships with people of differentbackgrounds and experiences arepowerful and memorable, and canbe more eye opening than a men-toring relationship among thosewho are similar.

Magistrate Ferree: We have morecommonalities than differences.

What benefits have you gained from this mentoringrelationship?

Aimee Gong: I have had the oppor-tunity to learn about differentaspects of the legal practice and metsome very respectable lawyers andjudges.

Chic Born: Insights into thinking –viewpoint of a lawyer 40 years myjunior. Optimism for Aimee andher career.

MENTORING continued from page 17


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Judge Johnson: It broadens yourhorizons to see the law from anoth-er person’s viewpoint, especiallyone so different from our own.After a short while into our rela-tionship, I realized I needed to bebetter prepared to cover the materi-als on our agenda.

We had occasions to discuss thechallenge of managing one’s time,balancing the challenges of family,practice and personal growth. Atthe end of our time, Lumi gave mean hourglass that I treasure. It sitsin a prominent place on my desk,reminding me to pay heed to myown advice.

Lumi Nodit: Judge Johnson taughtme to be self-confident, to do goodwork and to never lose my passionfor the practice of law. His encour-agements helped me along the way,and his praise boosted my confi-dence. Most of all, he taught me theimportance of staying true to your-self and your uniqueness. I praiseJudge Johnson for his caring com-mitment to inspire me to success-fully navigate my uniqueness (myRomanian accent) in the court-room.

If a colleague is contemplating a similar relationship and asksfor your advice, what advicewould you share?

Brandon Kimura: Seek a mentoringrelationship with someone who isas different from you as possible.Then be quick to listen and slow to speak.

Aimee Gong: The colleague shouldbe open-minded and humble. As ayoung lawyer, there is a lot to learnabout the legal community alongwith the requirements of the men-tor program.

Lumi Nodit: Mentoring is the art of making the most of a given situa-tion. Both mentor and menteeshould keep an open mind and welcome the gifts and opportunities

that mentoring across differencesprovide.

Judge Johnson: Do it! Do it! Do it!Not only is mentoring a greathonor, but it’s also a fantastic experience and a real contest as towhether you as mentor will learn as much or more than your mentee.It causes you to sharpen some ofyour own legal skills: how to inter-pret a statute or case holding; whatare the measurable effects on ourcommunity of laws that impact ourpersonal conduct; lawyers need tobe leaders – what skills do I need tobe a great one; what contributionscan I make to my community (e.g.,providing pro bono legal counsel or being involved in civic organiza-tions); and what contributions canI make in furtherance of the rule of law and how others view lawyers,judges and others in the justice system.

It doesn’t really require thatmuch of a time commitment, andthe benefits far outweigh the timeand energy you invest. And thatword “invest” is so appropriate in this situation because you willget more out of this experience

the more you invest in the life ofyour mentee.

One cautionary note: It is vitallyimportant that you, as mentor, areprepared when you meet with yourmentee. Those answers that comeoff the top of your head anddescriptions of how you’ve alwaysdone it, sell you and your menteeshort. Plus, most of the judges andattorneys I know tend to be lifetimelearners. You will be amazed at howmuch you learn engaging in thisexperience. The Army’s catchphrase, “Be all you can be,” shouldbe your guide when you look tocontribute to the experience andpreparation of our young attorneys.

Would you do it again?

Unanimous response: “Yes, without hesitation.” �Brita A. Horvath, Indianapolis, managesall aspects of Faegre Baker Daniels’ diver-sity programs. In her role as manager of diversity & inclusion, she develops initiatives and strategies to further thefirm’s ongoing commitment to diversitythrough its recruitment, retention, development and advancement efforts.She can be reached at [email protected].


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Proceeds to Benefit the Indianapolis Legal Aid Society

The 2015 “Timeless Tips from the Bench & Bar” will be held from 8:30 am to 4:30 pmon Friday, May 8, at the Indianapolis Marriott North, 3645 River Crossing Parkway,

Indianapolis, IN 46240, (317) 705-0000.

And everything is included – breakfast at 8:30, lunch, afternoon dessert, beverages & parking!You may register at https://donate.indylas.org/cle or mail your payment to Indianapolis

Legal Aid Society, Attn: Jackie Leverenz, 615 N. Alabama St., Suite 122, Indianapolis, IN 46204.

If you would like to sponsor this event, contact Curtis Shirley at (317) 685-6512 for more information.

Our Featured SpeakersJudge William T. Lawrence, U.S. District Court for the Southern District of Indiana

Indiana Supreme Court Justice Steven H. David • Ret. Indiana Supreme Court Justice Theodore BoehmIndiana Court of Appeals Judges Michael P. Barnes, Cale J. Bradford, Elaine B. Brown,

Terry A. Crone and Edward W. Najam Jr. • Attorneys Jackie M. Bennett Jr., Lee C. Christie,William J. Dale Jr., Thomas L. Davis, Dean Emeritus William F. Harvey, Charles M. Kidd, Nathaniel Lee,

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Timeless Tips from the Bench & BarMay 8 • Indianapolis

6 hrs. of CLE, including 1 hour of ethics • All for just $300

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The Indiana Supreme Courtissued four opinions inNovember, including three

civil matters that are summarizedbelow. One of those opinions wasthe lone grant of transfer of a civilmatter by the Supreme Court. ForNovember, the Indiana Court ofAppeals issued 14 published civilopinions, several of which are high-lighted herein. The full text of allIndiana appellate court decisions,including those issued not-for-publication, are available viaCasemaker at www.inbar.orgor the Indiana Courts website,www.in.gov/judiciary/opinions.

INDIANA SUPREME COURT

Requirement to file agencyrecord before seeking judicialreview of agency decision

In a unanimous opinion cap-tioned as Teaching Our PosteritySuccess, Inc. v. Indiana Departmentof Education and Indiana StateBoard of Education, 20 N.E.3d 149(Ind. 2014), the Indiana SupremeCourt granted transfer and resolved“a long-standing lack of consensus”on whether “a petitioner seekingjudicial review of an agency actionmust file with the trial court the agency record as defined by the Administrative Orders &Procedures Act” (“AOPA”). TheCourt of Appeals’ published opin-ion in this matter was summarilyaffirmed in all other respects.

AOPA contains certain provi-sions regarding the record of pro-ceedings in the agency and the roleof that record in facilitating judicialreview. See Ind. Code §4-21.5-1-1et seq. Specifically, Indiana Codesection 4-21.5-5-13(a) providesthat “the petitioner shall transmitto the court the original or a certi-fied copy of the agency record,” andsubsection 13(b) states that “[f]ail-ure to file the record within thetime permitted by this subsection ...is cause for dismissal of the petition

for review by the court ... .” Bothparties in this case relied upon theCourt’s decision in Indiana Family& Social Services Administration v.Meyer, 927 N.E.2d 367 (Ind. 2010),which was an evenly divided deci-sion as one justice did not partici-pate. While two justices in Meyeropined that “imperfect compliance... is not always fatal,” the other two justices disagreed, viewing the statutory language as a proce-dural “prerequisite to the pursuit of a petition for judicial review.”Subsequent appellate opinionshighlighted the fact that there wasno consensus on either the IndianaSupreme Court or the Court ofAppeals on this issue.

In Teaching Our PosteritySuccess, the Supreme Court choseto issue a bright-line approach,holding that “a petitioner forreview cannot receive considerationof its petition where the statutorilydefined agency record has not beenfiled.” The Court further stated thatto the extent any prior case, such asMeyer, inferred any exception tothis bright-line rule, “any suchexception is extremely narrow.”

The Court wasted no time inapplying the bright-line rule that it established in Teaching OurPosterity Success. In the FirstAmerican Title Insurance Companyv. Robertson, 19 N.E.3d 757 (Ind.2014) opinion, handed down onthe same day as Teaching OurPosterity Success, First Americanchallenged a Market ConductExamination. After the IndianaDepartment of Insurance complet-ed the administrative process concerning this challenge, FirstAmerican filed a petition in theMarion Superior Court. TheInsurance Commissioner moved to dismiss the petition, arguing that First American failed to timelysubmit the agency record asrequired by AOPA. The trial courtdenied the Commissioner’s motion.

The Court of Appeals affirmed the denial of dismissal, but theSupreme Court reversed, holdingthat because First American did notfile the agency record with the trialcourt, its petition for judicial reviewcould not be considered.

No demand made by the state of Indiana in its Right to Work Law

Zoeller v. Sweeney, 19 N.E.3d749 (Ind. 2014), involves a directappeal to the Indiana SupremeCourt after a trial court declaredthat two provisions of the IndianaRight to Work Law, Indiana Codesections 22-6-6-8 and 22-6-6-10,violated Article 1, Section 21 of theIndiana Constitution. Section 21 ofthe Indiana Bill of Rights providesin relevant part that “[n]o person’sparticular services shall be demand-ed, without just compensation.”Local 150 of theInternational Union ofOperating Engineers,AFL-CIO, argued in itscomplaint that Indiana’sRight to Work Law’s pro-hibition of employersrequiring union member-ship or the payment ofdues as a condition ofemployment violated the Indiana Constitutionbecause current federallabor law mandates thatan exclusive-agencyunion must represent the interests of allemployees regardless of union membership.

The Indiana SupremeCourt first recognizedthat, on the face of theIndiana Right to WorkLaw, there is no statedemand for particularservices. Thus, the factthat the federal govern-ment may impose certain

REC

ENT D

ECISIO

NS 11/14

Appellate civil case law updateBy Curtis T. Jones and John Z. Huang

John Z. HuangBose McKinney & Evans LLPIndianapolis, [email protected]

Curtis T. JonesBose McKinney & Evans LLPIndianapolis, [email protected]



RG 04.15_RG 09.05 4/16/15 2:23 PM

obligations upon an exclusive-agency union does not automatical-ly lead to the conclusion that thestate has made any demand for services. The Court also recognizedthat a union can choose to not be an exclusive-agency union andbecome a members-only union.“The Union’s federal obligation to represent all employees in a bar-gaining unit is optional; it occursonly when the union elects to bethe exclusive bargaining agent, for which it is justly compensatedby the right to bargain exclusivelywith the employer.” All justicesconcurred in the Court’s decisionto reverse the trial court’s entry ofdeclaratory judgment, but JusticeRucker issued a separate opinion toemphasize that though the Right toWork Law was not unconstitutionalon its face, “there may very wellexist a set of facts and circum-stances that if properly presentedand proved could demonstrate that

a union has actually been deprivedof compensation for particular services by application of the Rightto Work Law.” (emphasis added)

INDIANA COURT OF APPEALS

Scope of replacement cost coverage

In Erie Insurance Exchange v.Sams, 20 N.E.3d 182 (Ind. Ct. App.2014), the Court of Appeals decid-ed what appears to be an issue offirst impression in Indiana in defin-ing the scope of “replacement costcoverage” when only part of astructure or dwelling is damaged.After reviewing the limiting lan-guage of the policy at issue in thecase, the Court of Appeals affirmedthe trial court’s determination that Erie was obligated to provide“[r]eplacement cost coverage” for“the entire roof, the entire outsidesiding, and the entire cathedral

ceiling as separate parts of thebuilding.” The court recognizedthat its conclusion could place theinsured in a position of windfall.However, since the trial courtfound that the “house was in uni-form appearance before the loss,”replacement cost coverage requiredreplacing more than just the dam-aged areas in order to avoid devalu-ing the home due to a mismatchedroof or siding. Erie has soughttransfer to the Indiana SupremeCourt.

No reimbursement for the early payer

In City of Indianapolis v. Cox,20 N.E.3d 201 (Ind. Ct. App. 2014),the Court of Appeals reviewed a trial court’s entry of summaryjudgment against the City ofIndianapolis on a class action claimfor wrongdoing in changing itsmethod for financing sanitarysewer improvement projects. Priorto 2005, the City financed neigh-borhood sewer improvementsthrough a widely employed set of statutes known as the “BarrettLaw,” which authorized municipal-ities to recover costs of sewer pro-jects by dividing the costs amongthe properties that benefit andimposing assessments on the own-ers. The Coxes paid their assessedcosts for the City’s sewer project intheir neighborhood. In 2005, theCity developed a new financingplan where property owners wouldpay a one-time connection fee asopposed to a proportional share ofthe costs of a project in their neigh-borhood. As the City prepared to launch its new plan, it chose topass a resolution forgiving BarrettLaw debt that was due and owing.Having already paid their debt, the Coxes demanded a refund with interest, which was denied.

The Coxes did not dispute thatthe City had the authority to for-give assessment debts. The Court

RECENT DECISIONS 11/14 continued from page 21


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of Appeals noted that the Coxeswere essentially claiming a loss ofproperty, which was a tort claim.Because the Coxes failed to providetimely notice, as required by theIndiana Tort Claims Act, theirclaim was barred and no refundwas owed.

Firewall screening for attorneyat firm was not enough

In XYZ, D.O. v. Sykes, 20N.E.3d 582 (Ind. Ct. App. 2014),the Court of Appeals reviewedwhether a law firm could continueto appear in a matter that wasadverse to a former client of one of its attorneys. Kathleen Clark previously represented a doctor ashis primary lawyer in six medicalmalpractice cases. After beginningwork at a new law firm, Clarkworked as an “intake attorney,”conducting initial interviews withpotential clients to obtain casesummaries and relevant informa-tion to determine whether the firmwould pursue representation. Oneof those potential clients presenteda claim against the doctor whomClark formerly represented. Clarkrecommended representation of theclaim and was then screened fromparticipation in the case by her newfirm’s internal security procedures.

In applying IndianaProfessional Conduct Rule 1.9, thecourt concluded that “if an individ-ual lawyer is personally disqualifiedfrom a client representation, his orher new law firm is also disquali-fied,” except under very specificconditions. The court recognizedthat Rule 1.10 allows for law firmsto use screening mechanisms incertain circumstances, but in apply-ing that rule to the situation athand, the court concluded thatbecause Clark had been the doctor’sprimary, and at times, only lawyerin the prior cases, she could not bescreened to avoid imputation of theconflict to the law firm.

Negligent infliction of emotional distress

In Clifton v. McCammack, 20 N.E.3d 589 (Ind. Ct. App. 2014),a father learned from the televisionnews of a motorbike fatality alongthe path that his son was taking that day. Because the father “had a very bad feeling,” he left his hometo search for the accident. Uponarrival the father recognized hisson’s motorbike at the scene andhis son’s shoes sticking out fromunder a blanket. The Court ofAppeals applied the bystander ruleas explained in Smith v. Toney, 862N.E.2d 656 (Ind. 2007), noting thatboth the relationship and proximityrequirements under the rule wereissues of law. The question in thiscase was whether the father’s com-ing onto the scene of his son’s deathsatisfied the proximity requirementof the bystander rule. The Court of Appeals held that it did, as the

father left his home not knowingwhat had happened to his son,arrived at the scene approximately40 minutes following the accidentand 25 minutes after his son hadpassed away, and observed thegruesome aftermath of his son’sdeath.

Corporation should be allowedopportunity to secure counsel

In Destination Yachts, Inc. v. Fine, 22 N.E.3d 611 (Ind. Ct.App. 2014), the Court of Appealsreversed the trial court’s defaultjudgment entered after an individ-ual appeared at a hearing in SmallClaims Court without counsel torepresent his company. The courtheld that the trial court’s denial ofthat individual’s motion to contin-ue the trial was an abuse of discre-tion as a corporate litigant must begiven a fair opportunity to correct


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its error and retain competentcounsel before a dismissal is appropriate.

Civil conspiracy must have underlying tort claim by each co-conspirator

In Crystal Valley Sales, Inc. v.Anderson, 22 N.E.3d 646 (Ind. Ct.App. 2014), the Court of Appealsaffirmed the trial court’s decision to dismiss a civil conspiracy claimwhere no underlying tort was suffi-ciently alleged. The court held that “the complaint must allegesome unlawful act underlying the defendants’ concerted action.”Continuing, the court stated, “[I]tis not enough that the alleged con-spirators acted in concert and thatthe result amounted to a breach of contractual or fiduciary duty by one of them ... there must besome intentional underlying act

of wrongdoing by each of the co-conspirators.” Finally, the courtheld that Indiana does not recog-nize a cause of action for “aidingand abetting a fiduciary in thebreach of a fiduciary duty,” and it declined to create one. �Curtis Jones is a partner at BoseMcKinney & Evans LLP in its litigation,insurance and appellate groups. While at Valparaiso University School of Law,Curtis served as executive symposiumeditor for the Valparaiso University Law Review, earned an honors programscholarship, and served for a year in anexternship with the Hon. Kenneth F.Ripple, U.S. Court of Appeals, SeventhCircuit. Upon graduating and prior tojoining Bose McKinney & Evans, Curtisserved as a judicial law clerk to JusticeTheodore R. Boehm on the IndianaSupreme Court. His email is [email protected].

John Z. Huang is an associate at BoseMcKinney & Evans LLP in its litigation,labor & employment, education andinsurance groups. While at Notre DameLaw School, John served as symposiumeditor for the Notre Dame Journal ofLaw, Ethics & Public Policy, was aWhite Scholar, and served as president of the Public Interest Law Forum. Upongraduating and prior to joining BoseMcKinney & Evans, John served as a judicial law clerk to Justice FrankSullivan Jr. on the Indiana SupremeCourt, assistant litigation counsel with the City of Indianapolis Office of Corporation Counsel, and staff attorney with the Indiana Department of Education. His email is [email protected].



RG 04.15_RG 09.05 4/16/15 2:23 PM

This formal opinion is dis-seminated in accordancewith the charge of the ISBA

Legal Ethics Committee and isadvisory in nature. It is intended to guide the membership of theIndiana State Bar and does not have the force of law.

IssueDoes an Indiana attorney

violate Rule 8.4(g) of the Rules ofProfessional Conduct by participat-ing as a leader of a nonprofit orga-nization that has gender, religiousor racial requirements for member-ship?

Brief answerAn attorney’s active participa-

tion in an organization that hasgender, religious or racial require-ments for membership is not aninherent violation of Rule 8.4(g) of the Indiana Rules of ProfessionalConduct. But, there may be partic-ular circumstances where an attor-ney’s participation in such organi-zations may be viewed as miscon-duct when he or she acts in a “pro-fessional capacity.” As the IndianaSupreme Court has yet to definethe exact scope and meaning of“professional capacity,” lawyersshould be attentive to the missionand nature of such an organizationand the role(s) the lawyer may beasked to fulfill for the organization.

Hypothetical facts

Attorney A is a member of a nonprofit organization thatexcludes women from membershipand admits only white men whopractice a certain religion. Theattorney is asked to assume a posi-tion on the governing board of theorganization and to serve as one of its officers.

Analysis

Setting aside constitutionalissues involving freedom of associa-tion and freedom of speech, the

issue presented by this hypotheticalcalls for an interpretation of Rule8.4(g) of the Indiana Rules ofProfessional Conduct, whichbroadly proscribes various forms of speech and conduct perceived as being antithetical to a lawyer’srole in our legal system. Rule 8.4(g)states:

It is professional misconduct for a lawyer to engage in conduct, in aprofessional capacity, manifesting, bywords or conduct, bias or prejudicebased upon race, gender, religion,national origin, disability, sexual ori-entation, age, socioeconomic status,or similar factors. Legitimate advoca-cy respecting the foregoing factorsdoes not violate this subsection. A trial judge’s finding that preempto-ry challenges were exercised on a discriminatory basis does not aloneestablish a violation of this Rule.

Rule 8.4(g) is part of a rule that prohibits other forms of pro-fessional misconduct, including,among other behaviors, criminalactivity reflecting on a lawyer’shonesty and conduct prejudicial tothe administration of justice. (SeeRule 8.4 (b), (d)). Indiana is one of10 states1 that includes a separateanti-discrimination clause in theirrules governing misconduct.

There is similar language inComment [3] to ABA Model Rule8.4 suggesting that discriminatoryspeech is “prejudicial to the admin-istration of justice” in violation ofRule 8.4(d), but the ABA commentlimits application to actions thatoccur while “in the course of repre-senting a client.” One commentator

ATTO

RN

EY ETH

ICS

Opinion No. 1 of 2015


Participation in discriminatory organizations – the scope of Rule 8.4(g)


RG 04.15_RG 09.05 4/16/15 2:23 PM

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and the Indiana Bar Foundation

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has correctly noted that the distinc-tion between acting “in a profes-sional capacity” and “in the courseof representing a client” is notclear.2 Nevertheless, it seems rea-sonably obvious that “acting in aprofessional capacity,” as that termis used in Rule 8.4(g) is at least asbroad and perhaps broader than“while representing a client.”

In Indiana the phrase “in rep-resenting a client” goes far beyondrepresentation in the context of litigation or other disputes. The Preamble to the Rules ofProfessional Conduct indicates thatthe process of representing a clientmay include work as an advisor, an advocate, a negotiator, an inter-mediary and an evaluator.3 So, itseems fair to conclude that thescope of Rule 8.4(g) is intended to include at least these functions if they take place in the context of an attorney-client relationship.Similarly, a letter written on anattorney’s professional letterheadthat identifies the author as anattorney and contains discrimina-tory comments will likely be suffi-cient to meet the “professionalcapacity” test. See Notopoulos v.Statewide Grievance Committee, 857 A.2d 857 (Conn. App. 2004).But the hypothetical facts presentedabove do not assume any of thosesituations.

If Rule 8.4(g) were limited tobehavior occurring “in the courseof representing a client,” as theABA comment is limited, theCommittee’s analysis would endwith the observation that in theabsence of an attorney-client rela-tionship with the organization no violation of Rule 8.4(g) couldoccur. However, Indiana’s versionof 8.4(g) is not limited in this way, so it is necessary to considerwhether Rule 8.4(g) has any appli-cation to situations outside of thosethat involve representing a client.

There are six Indiana cases that have applied Rule 8.4(g), but the scope of “in a professionalcapacity” is still not clear. The firstcase was in 2005 and dealt withracial bias. In the Matter ofThomsen, 837 N.E.2d 1011 (Ind.2005). The second was in 2009 andconsidered discrimination on the basis of national origin andsocioeconomic status. In the Matterof Campiti, 905 N.E.2d 408 (Ind.2009). In both of these cases, theIndiana Supreme Court did notneed to discuss the meaning of“professional capacity” since thelawyer’s speech occurred while representing clients in open court.

Two cases applied Rule 8.4(g)in 2010: In the Matter of McCarthy,938 N.E.2d 698 (Ind. 2010) and In the Matter of Kelley, 925 N.E.2d1279 (Ind. 2010). The McCarthycase involved a lawyer who, in thecourse of representing a client, sentan email that displayed discrimina-

tion on the basis of race. In theKelley case, Respondent beganreceiving pre-recorded messagesfrom a company seeking to speakwith her husband. Respondent andher husband agreed that she wouldcall the company at the toll-freenumber to remedy the situation.Respondent then spoke to a malerepresentative of the company,identifying herself as a lawyer representing her husband. Notingwhat she thought was a feminine-sounding voice, Respondent askedthe company’s representative if hewas gay. The company representa-tive commented on the unprofes-sional nature of this inquiry, andRespondent admitted the violationof Indiana Rule 8.4(g). The IndianaSupreme Court once again did nothave to define the scope of “profes-sional capacity” in either of thesecases because both attorneys were

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acting while in the course of repre-senting a client.

Two Indiana cases addressedRule 8.4(g) in 2013: In the Matter of Dempsey, 986 N.E.2d 816 (Ind.2013) and In the Matter of Usher,987 N.E.2d 1080 (Ind. 2013). In Dempsey, the Indiana SupremeCourt held that Respondent violat-ed Rule 8.4(g) by distributing flyersin downtown Indianapolis, basedon his personal bankruptcy case.The flyers “made free-ranging disparaging remarks about Jewsgenerally, from the fall of Jericho,through 1925 Berlin, to theiralleged involvement in the 9/11attacks,” which the Court classifiedas “scurrilous and repugnantattacks.” Id. 817. The Court saidthat these violations were not thetype of communications that fallwithin an attorney’s broad consti-tutional right to freedom of speech.Id. In Usher, a male partner in a lawfirm sent out a fabricated emailabout a female intern with whomhe was pursuing a romantic rela-tionship. The male attorney wascharged with violating Rule 8.4(g),but that charge was rejected, notbecause the attorney was acting in a non-professional capacity, but because the Court found thathis email was motivated by per-sonal anger at the female intern in particular rather than by biasagainst women in general.

Even though 8.4(g) wasdeemed inapplicable to the respon-dent in Usher the holding isinstructive for our hypotheticalbecause it confirms that Rule 8.4, in general, extends well beyondbehavior involved in representing aclient. Responding to the attorney’scontention that the rules did notapply because “his actions ... werenot done in a professional capaci-ty,” the Indiana Supreme Courtstated: “This Court has imposeddiscipline on lawyers for speechfound to violate their professional

duties, as well as for unethical activ-ities outside the professional arena.We conclude that Respondent’sactions regarding the email are notbeyond this Court’s disciplinaryauthority.” The Court made a simi-lar point earlier in In re Quinn, 696N.E.2d 863 (Ind. 1998), which indi-cated that indifference to legal stan-dards of conduct reflected adverselyon one’s fitness as an attorney.Examples of disciplinary actionsagainst lawyers for conduct unrelat-ed to the representation of clientsare easy to find, both within andoutside of Indiana. See, e.g., In reConn, 715 N.E.2d 379 (Ind. 1999)(child pornography conviction); In re Peterson, 718 N.W. 2d 849(Minn. 2006) (tax evasion); Fla.Bar. v. Bartholf, 775 So. 2d 957 (Fla.2000) (lawyer assaulted victim witha golf cart). While the violation inDempsey bore some relationship to a legal proceeding involving thelawyer being disciplined, no suchclaim can be made based on thefacts of Usher. In Usher no clientwas involved, so it is clear that theCourt intends that Rule 8.4 in gen-eral has application beyond theboundaries of an attorney-clientrelationship. The question is howfar those boundaries go in the context of Rule 8.4(g).

Some further informationabout the scope of Rule 8.4(g) canbe found in Comment [2] to Rule8.4, which states:

Many kinds of illegal conduct reflectadversely on fitness to practice law,such as offenses involving fraud andthe offense of willful failure to file an income tax return. However,some kinds of offenses carry no such implication. Traditionally, thedistinction was drawn in terms ofoffenses involving “moral turpitude.”That concept can be construed toinclude offenses concerning somematters of personal morality, such as adultery and comparable offenses,which have no specific connection to fitness for the practice of law.Although a lawyer is personally



RG 04.15_RG 09.05 4/16/15 2:23 PM

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answerable to the entire criminal law, a lawyer should be professional-ly answerable only for offenses thatindicate lack of those characteristicsrelevant to law practice. Offensesinvolving violence, dishonesty,breach of trust or serious interfer-ence with the administration of justice are in that category.

While the Indiana SupremeCourt has not clearly defined thescope of “in a professional capaci-ty” as used in Rule 8.4(g), the NewJersey Supreme Court’s interpreta-tion of its rule offers some guid-ance.4 The New Jersey DisciplinaryRules of Professional Conduct Rule8.4(g) states:

It is professional misconduct for alawyer to: engage, in a professionalcapacity, in conduct involving dis-crimination (except employment discrimination unless resulting in a final agency or judicial determina-tion) because of race, color, religion,age, sex, sexual orientation, nationalorigin, language, marital status,socioeconomic status, or handicapwhere the conduct is intended or likely to cause harm.

In its comments to the rule, theNew Jersey Supreme Court notedthat the addition of paragraph (g)was intended “to make discrimina-tory conduct unethical whenengaged in by lawyers in their pro-fessional capacity.”5 The commentfurther notes that the rule coversactivities in the courthouse, treat-ment of court staff, conduct relatedto litigation, treatment of otherattorneys and related staff, bar association activities, and activitiessponsored by a lawyer’s firm.6 Thecomments further state that “purelyprivate activities are not intendedto be covered by this rule amend-ment, although they may possiblyconstitute a violation of some otherethical rule.”7 Due to numeroussuggestions received by the NewJersey Supreme Court following theinitial publication of paragraph (g),the Court revised the proposedamendment by making explicit its

intent to limit the rule to conductby attorneys in a professionalcapacity, to exclude employmentdiscrimination unless adjudicated,and to restrict the scope of the Ruleto conduct intended or likely tocause harm. The Court noted thatthe intent was to cover only dis-crimination where the attorneyintentionally causes harm or inflictsemotional distress. This clarifica-

tion is more than simply interest-ing, as it seems to align well withthe decision in Usher to the extentthat for 8.4(g) purposes, the Courtlooked to the existence or absenceof discriminatory intent. Likewise,Usher involved “treatment of otherattorneys and their staff” – conductthe New Jersey comment expressly



RG 04.15_RG 09.05 4/16/15 2:23 PM

brings within the ambit of the term“in a professional capacity.”

For the sake of comparison,Indiana’s Model Code of JudicialConduct, Rule 3.6 states that “[a]judge shall not hold membership in any organization that practicesinvidious discrimination on thebasis of race, sex, gender, religion,national origin, ethnicity, or sexualorientation.” Further, a judge maynot be a member or benefit from anorganization if the judge knows orshould know that the organizationpractices “invidious discrimina-tion.” Comment [2] to Rule 3.6defines invidious discrimination asarbitrarily excluding persons frommembership who would otherwisebe eligible for admission on thebasis of race, sex, gender, religion,national origin, ethnicity, or sexualorientation. This will depend notonly on how the organizationselects members, but “whether

the organization is dedicated to thepreservation of religious, ethnic, orcultural values of legitimate com-mon interest to its members, orwhether it is an intimate, purelyprivate organization whose mem-bership limitations could not con-stitutionally be prohibited.”8

Comment [4] notes that a judge’smembership in a religious organi-zation as a lawful exercise of thefreedom of religion is not a viola-tion of Rule 3.6.

Since judges must be perceivedas impartial, it follows that theirpersonal activities may be morecontrolled in order to avoid the appearance of impropriety.Lawyers, on the other hand, are not under that same obligation.Whereas the language of the judi-cial rule explicitly applies to mem-bership in discriminatory organiza-tions, there is no such language inRule 8.4(g), which perhaps suggests

that no restriction was intended.But the distinction between theRules of Professional Conduct and the Model Code of JudicialConduct is not conclusive on thequestion of whether mere member-ship in a discriminatory organiza-tion or performance of a leadershiprole in such an organization canconstitute a violation of Rule8.4(g).

Unfortunately, there is simplynot enough direction from theIndiana Supreme Court to allowany firm conclusions as to preciselyhow far Rule 8.4(g) may reach.Certainly it touches all activity byan attorney arising out of the broadrepresentative functions describe inthe Preamble to the Rules so long asa client is involved while simultane-ously allowing an exemption forlegitimate advocacy. But whenthere is no client involved, the Rulestill has some application to behav-ior where the lawyer’s status as alawyer is a relevant part of the pic-ture and the lawyer can be deemedto have intentionally engaged intypes of discriminatory behaviorproscribed by the Rule, as Dempseyand Usher show.

As acknowledged above, thereare constitutional issues that cannotbe avoided in addressing the ques-tion presented by this hypothetical.As the Committee has alreadynoted, the character of the organi-zation seeking Attorney A’s leader-ship services is critical in determin-ing the extent to which any consti-tutional freedom of associationmay have application to A’s situa-tion. In Roberts v. U.S. Jaycees, 468U.S. 609 (1984), the Court held thatMinnesota human rights law couldprevent the exclusion of femalemembers by an organization inorder to support important publicpolicies aimed at eliminating invid-ious discrimination in access topublicly available goods, servicesand other advantages. Id. 628.



RG 04.15_RG 09.05 4/16/15 2:23 PM

The Jaycees’ “freedom of associa-tion” argument was rejected, inpart due to the large and publicnature of the organization, in con-trast to the sort of smaller, moreintimate and selective organizationseen as more deserving of constitu-tional protection. Id. 620 -621.Whether Attorney A could claimconstitutional protection from Rule8.4(g) based on freedom of associa-tion would seemingly depend, atleast in part, on the nature of theorganization he is asked to helplead. The Court in the Jaycees casealso made it clear that a more strin-gent test would be applied if thegoal of the organization involvedother recognized freedoms such asfreedom to worship, to speak or topetition the government for redressof grievances. Id. 622. These pro-nouncements underscore theCommittee’s point that Attorney A

needs to be sensitive to the natureof the organization in evaluatingthe scope and effect of Rule 8.4(g).In contrast to the similar NewJersey rule, cited above, the Indianaversion of Rule 8.4(g) specificallymentions discriminatory “words or conduct.” The decision in Kelley,supra, seems to make the point that discriminatory speech alone is enough to create a violation of8.4(g) if it occurs while the lawyer is representing a client, unless itamounts to legitimate advocacy.Further, Dempsey, supra, seems toindicate that statements made by alawyer about a proceeding that hasconcluded will fall within the scopeof Rule 8.4(g) if the lawyer wasinvolved, even on a pro se basis. The Committee notes that “a lawyer’s right to free speech is extremely circumscribed in thecourtroom” Gentile v. State Bar

of Nevada, 501 U.S. 1030, 1031(1991), but outside the courtroomthe standards are different. Berry v. Schmitt, 688 F. 3d 290, 304-305(6th Cir. 2012), see also StandingCommittee on Discipline of theUnited States District Court for the Central District of California v.Yagman, 55 F. 3d 1430 (9th Cir.1995). Rule 8.4(g) makes no obvi-ous distinction between discrimina-tory statements inside or outside a courtroom, and this Committeewill draw no conclusions concern-ing the constitutionality of Rule8.4(g) since doing so is not requiredby the hypothetical presented to theCommittee. But it is clear that Rule8.4 in general and Rule 8.4(g) inparticular as interpreted by theIndiana Supreme Court both have application well beyond any


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remarks made by a lawyer in themiddle of a court proceeding.

Conclusion

An attorney who merely par-ticipates in his personal capacity in an organization that has gender,religious or racial requirements formembership and does not partici-pate in his or her capacity as alawyer would not be in violation of Rule 8.4(g) of the Indiana Rulesof Professional Conduct simply by virtue of the connection to suchan association.

The Committee also does notbelieve that a lawyer violates Rule8.4(g) merely by providing legalrepresentation to an organizationwith discriminatory requirements,policies or beliefs, both becausesuch representation can often be

accomplished without the lawyerpersonally making discriminatorycomments or engaging in discrimi-natory conduct and because the“legitimate advocacy” exception is likely to cover situations wherethe lawyer cannot avoid such state-ments or conduct. Gratuitous dis-criminatory statements or conductin the course of a representationstand on a different footing.

However, participation is dif-ferent from representation in thiscontext. So, a lawyer should bemindful of the particular practicesof such an organization if thelawyer intends to personally partici-pate in activities that advance anyof its discriminatory requirements,policies or beliefs. The lawyershould proceed with particular caution if the lawyer’s status as

a lawyer is connected to his or herparticipation in the organization’sactivities. Accepting a leadershiprole in such an organization orusing one’s status as a lawyer insupport of the organization createsmore ethical risk than mere mem-bership. But in either case, thenature of the organization and thelawyer’s role in the organization are critical to the outcome of anyethical analysis. In light of the deli-cate balance between constitutionalrights and the necessity of fairnessin the administration of justice, it is the Committee’s hope that the Indiana Supreme Court mayoffer further clarification on thescope of “professional capacity” by way of an official Comment to Rule 8.4(g). �1. Other states include Colorado, Florida, Illinois, Missouri, Nebraska, New Jersey,North Dakota, Ohio and Washington.

2. Lundberg, Donald R., “Of TelephonicHomophobia and Pigeon-Hunting Misogyny:Some Thoughts on Lawyer Speech,” 53 Res Gestae 164 (June, 2010).

3. Indiana Rules of Professional Conduct,Preamble, para. [2].

4. Out of the 10 states with anti-discriminationclauses in their rules governing misconduct,just four use the phrase “in a professionalcapacity” (Indiana, Nebraska, New Jersey andOhio). Only the comments to New Jersey’srule address the interpretation of professionalcapacity.

5. Official Comment by New Jersey SupremeCourt (May 3, 1994). Available at http://www.law.cornell.edu/ethics/nj/code/CRule_8.4.htm.

6. Id.

7. Id.

8. Indiana Model Code of Judicial Conduct, Rule 3.6, Comment [2].



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RG 04.15_RG 09.05 4/16/15 2:23 PM

In December, the IndianaSupreme Court issued fouropinions in civil matters,1 sum-

marized below. The Court grantedtransfer in two civil cases. TheIndiana Court of Appeals issued a total of 36 published opinions in civil matters, some of which aresummarized below. Full text of allIndiana appellate court decisionsrendered during December, includ-ing those issued not-for-publica-tion, are available through Case-maker at www.inbar.org or on the Indiana Courts website, www.in.gov/judiciary/opinions. TheIndiana Supreme Court’s transferdisposition lists can be found at http://www.in.gov/judiciary/cofc/2338.htm.

SUPREME COURT

Lien foreclosure prohibition clause and delinquent sewer bills

In parallel cases decided thesame day, the Indiana SupremeCourt held that the lien foreclosureprohibition clause of the statutegoverning collection of regionalsewer district liens did not applywhere the properties listed for taxsale were encumbered only by thesewer bill liens at issue. In re CarrollCounty 2013 Tax Sale, 21 N.E.3d832 (Dec. 4) (Dickson, J.); In reCarroll County 2012 Tax Sale, 21N.E.3d 91 (Dec. 4) (Dickson, J.).

The same trial judge grantedrequests by two landowners toremove their properties from thetax sale list, citing the lien foreclo-sure prohibition of Indiana Codesection 13-26-14-4. In both cases,the landowners owed fees andpenalties to a non-municipalregional sewer district, which hadperfected liens against the proper-ties and certified them to the county auditor for collection. The district appealed.

Reviewing the judgment, theIndiana Supreme Court identified

the central issue as how to interpretthe lien foreclosure prohibitionclause of the statute governing col-lection of regional sewer districtliens. Whereas preceding sectionsof the statute authorize (amongother things) “sewer districts to use lien foreclosure to collect rates,charges, and penalties,” the lienprohibition clause (Indiana Codesection 13-26-14-4) provides: “A lien under this chapter that isthe only lien on a property may notbe foreclosed.” The question, then,was whether tax sales qualify as“foreclosures” within the meaningof the statute.

Examining the greater statuto-ry context, the Court first notedthat Title 13 applies to regionalsewer districts rather than munici-pal sewer works. The Court furtherobserved that Section 4 of Title 13provides liens “shall be collectedand enforced in substantially thesame manner” as provided in thesections governing municipal sewerworks. Concluding the referencedprocedures (found in Title 36,Article 9, Chapter 23) determinehow both municipalities andregional sewer districts may collectunpaid sewer bills, the Court iden-tified a critical distinction: “[W]hile[these sections] authorize the coun-ty treasurer to collect assessed sewerfees in the manner of collectingdelinquent property taxes, whichincludes resort to a tax sale,” it noted they “do not define sewerfee collection liens as ‘tax liens’ orrefer to a ‘tax sale’ as a ‘lien foreclo-sure,’ nor does Chapter 23 else-where ‘establish’ a ‘tax lien’ subjectto ‘foreclosure.’” Based on this dif-ference and the enacted language,the Court held that the statute pre-cludes the foreclosure of regionalsewer district fee liens so long asthey are the only liens on a proper-ty, but does not preclude collectionof those fees and charges by taxsale. Put simply, “a tax sale does

not fall within the regional sewerdistrict lien foreclosure prohibi-tion.” Because sewer fee liens werethe only liens on the properties inquestion, the Court reversed thejudgments of the trial court.

Rights of de facto custodians in adoption proceedings

In a unanimous opinion, theIndiana Supreme Court held thatfor purposes of the Indiana statuterequiring written consent to anadoption petition by each personwith lawful custody of the child, the term “lawful custody” includesmaternal grandparents who eachmet the statutory definition of a “de facto custodian.” In re Adoptionof B.C.H., 22 N.E.3d 580 (Dec. 23)(David, J.).

Mother’s child remained in theprimary care and custody of mater-nal grandparents until shewas almost 4 years old,visited by Mother once or twice weekly. Duringthis period, Stepfatherfiled a petition to adoptthe child with Mother’sconsent but without giv-ing Grandparents notice or any chance to withholdtheir consent. The trialcourt granted the adop-tion, and Motherremoved the child, pro-hibiting further contactwith Grandparents.Arguing that “lawful cus-tody” of the child entitledthem to notice and con-sent rights, Grandparentsfiled a motion to reopenthe adoption. The trialcourt denied relief, hold-ing that Grandparentshad no “lawful custody”within the meaning of the adoption statute.Grandparents appealed,

REC

ENT D

ECISIO

NS 12/14

Appellate civil case law updateBy D. Lucetta Pope and Larry E. LaTarte

Larry E. LaTarteFaegre Baker Daniels LLPSouth Bend, Ind. [email protected]

D. Lucetta PopeFaegre Baker Daniels LLPSouth Bend, [email protected]



RG 04.15_RG 09.05 4/16/15 2:23 PM

and the Court of Appeals affirmed.

On transfer, the IndianaSupreme Court interpreted theterm “lawful custody” underIndiana Code section 31-19-9-1(a)(3) to include those who metthe statutory definition of a de factocustodian. The Court began itsanalysis with the text of the statute,which provides that “a petition toadopt a [minor] child ... may begranted only if written consent toadoption has been executed by ...(3) [e]ach person, agency, or localoffice having lawful custody of the child whose adoption is beingsought.” The word “lawful,” theCourt explained, ordinarily means“not contrary to law” rather than“as established by a court.” It rea-soned that “sources of potentiallawful custody span the spectrumfrom court-ordered custody of achild to de facto custodianship toinformal caretaking arrangements,”among others. The Court alsoobserved that this ordinary readingof the text likely reflects both thelegislature’s judgment that courtsassessing a child’s best interestsshould hear from “the party withcare, custody, and control” of thatchild, and the legislature’s responseto the increasingly diverse arrange-ments of Indiana families.

Turning to the record, the Court emphasized that Grand-parents had served as primary caregivers for the first three yearsand nine months of the child’s life,forming strong bonds of attach-ment. And while Mother retainedlegal custody, the Court found thatwhat became a permanent caretak-ing arrangement transformedGrandparents’ physical custodyinto lawful custody. Grandparents,in the Court’s view, were exactly thekind of caregivers envisioned by theGeneral Assembly when it chose theterm “lawful custody” over “legalcustody.” Consequently, it vacated

the adoption order, holding thatwhile the trial court would retainauthority to determine the bestinterests of the child, Grandparentsmust be given “the opportunity to give or withhold their consent to Stepfather’s adoption of theirgranddaughter.”

Judicial modification of agreed child support orders

Resolving an issue of conflict-ing precedent in prior Court ofAppeals cases concerning the circumstances under which a trial court may modify an agreedchild support order, the IndianaSupreme Court held that an agreedchild support order can only bemodified upon a showing of eithera substantial and continuing changein circumstances or, after 12months, a 20-percent deviationfrom the Indiana Child SupportGuidelines. Rolley v. Rolley, 22N.E.3d 558 (Dec. 14) (per curiam).

Mark and Melissa Rolleydivorced in 2011. Their child sup-port agreement deviated substan-tially from what would be orderedby applying the Indiana ChildSupport Guidelines. Later, Melissapetitioned to modify Mark’s childsupport obligation, arguing thatthere was more than a 20-percentdifference between the amount ofsupport Mark was paying and theamount that would be orderedunder the Guidelines. The trialcourt granted Melissa’s petition and modified Mark’s supportrequirements.

On appeal, Mark relied on twoIndiana Court of Appeals decisions,Hay v. Hay, 730 N.E.2d 787 (Ind.Ct. App. 2000), and Reinhart v.Reinhart, 938 N.E.2d 788 (Ind. Ct.App. 2010), to argue that agreedchild support terms cannot bemodified absent a showing of a substantial and continuing change in circumstances that ren-ders those terms unreasonable. The

trial court’s decision, however, wassupported by contrary reasoning inMarriage of Kraft, 868 N.E.2d 1181(Ind. Ct. App. 2007), in which thecourt allowed modification upon ashowing of either a substantial andcontinuing change in circumstancesor a 20-percent deviation after 12months. The Supreme Court agreedwith Marriage of Kraft, adopting itsreasoning with respect to the modi-fication and summarily affirmingthat court’s calculation of Mark’ssupport obligation.

Jurisdiction, venue, and local rules of court

Clarifying the differencebetween jurisdiction and venue in probate matters in countieswithout a separate probate court,the Indiana Supreme Court heldthat Lake County’s CaseloadAllocation Plan was a mandatorylocal rule prescribing venue withinthe Lake Superior Court’s statutorydivisions. Adoption of J.T.D. & J.S.v. N.E., 21 N.E.3d 824 (Dec. 4)(Rush, C.J.).

The Lake Superior Court iscomprised of four divisions: Civil(including probate), Criminal,County and Juvenile. Lake Countyhas no separate probate court; as aresult, Indiana Code section 31-19-1-2(b), conferring exclusive juris-diction in the probate courts, doesnot apply. N.E. filed two adoptionpetitions in the Civil division, violating the local Case AllocationPlan’s requirement that adoptionsof minors be exclusively filed in the Juvenile division. On that basis,DCS moved to transfer the cases tothe Juvenile division. N.E. opposedthe transfer, arguing that the CaseAllocation Plan conflicted with the statute creating the SuperiorCourt’s divisions because, accord-ing to N.E., those divisions arejurisdictional and so render theCase Allocation Plan ineffective.The trial court agreed with N.E.



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and declined to transfer the case.The Court of Appeals affirmed.

The Indiana Supreme Courtmade clear that according to theplain statutory language, the LakeSuperior Court is a single court ofbroad, original, concurrent juris-diction. The statute instructs thatthe work of that one court be divid-ed among the divisions “by therules of the court,” i.e., the localrules. This separation into divi-sions, concluded the Court, is merely descriptive of venue, notprescriptive of rigid jurisdictionalboundaries. If it were otherwise, the statutory language creating theSuperior Court and its divisionscould not be read in harmony: thecommand to divide work via localrule would inherently conflict withthe statute’s jurisdictional align-ment. Thus, because the CaseloadAllocation Plan did not contravenea statute, the trial court lacked the

discretion to disregard it. N.E. wasobliged to file her adoption peti-tions in the Juvenile division, andwhen she failed to do so, the Civildivision was obligated to yieldvenue.

COURT OF APPEALS

Consensual relationship and school principal contract

Evidence that a school princi-pal engaged in a consensual rela-tionship with a teacher did notentitle the school district to sum-mary judgment on the principal’sbreach of contract and due processclaims. Hewitt v. Westfield Wash-ington School Corp., 2014 WL7403577 (Dec. 30) (Bailey, J.).

After learning that a schoolprincipal engaged in a consensualintimate relationship with a subor-dinate teacher, the school boardcanceled his two-year employment

contract. The principal sued, alleg-ing that the school breached hiscontract by (among other things)failing to conduct the requiredhearing and violated his dueprocess rights under 42 U.S.C.§1983 for essentially the same rea-sons. On cross-motions for sum-mary judgment, the trial courtruled in favor of the school on all issues. The principal appealed.

The Court of Appeals began its analysis by noting Indiana’s rela-tively high standard for summaryjudgment, which creates the “oner-ous burden” to “affirmativelynegate an opponent’s claim.”Turning to the breach of contractclaim, the court rejected theschool’s position that the princi-pal’s contract – written on a stan-dard teacher’s contract form –imposed less demanding standards


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for cancellation. Rather, the con-tract incorporated by reference the statutory protections affordedteachers, including rights to a “justcause” hearing. The court alsorejected the school’s argument thatit could avoid statutory proceduresfor canceling an employment con-tract because the principal admitted

engaging in the challenged conduct.Acknowledging that “just cause” for cancellation included any goodfaith ground unless arbitrary, irra-tional, unreasonable or irrelevant tomaintaining an efficient school sys-tem, the court reasoned that manyrelationships could create a similarappearance of impropriety or con-

flict of interest, citing examples likean administrator’s supervision ofher children’s teachers; and it rea-soned further that allowing theschool to find just cause withoutconducting the required hearingwould render that contract termmeaningless and thwart the legisla-ture’s purpose. Finding insufficientevidence that the conferencereceived by the principal satisfiedthe procedural requirements ofIndiana Code section 20-28-7.5-2,the court reversed the summaryjudgment granted to the school.

Tall grass and freedom of conscience and expression

Requiring a landowner to obeya municipal ordinance restrictingthe height of yard grass did not violate his freedom of conscienceunder the Indiana Constitution, his freedom of expression under thestate or federal constitution, or anyIndiana statute, nor was the ordi-nance void for vagueness. Gul v.City of Bloomington, 22 N.E.3d 853(Dec. 22) (Baker, J.).

The owner of residential prop-erty in Bloomington was fined forviolating an ordinance restrictingthe height of yard grass to eightinches. The landowner appealedthis administrative citation to theBloomington Board of PublicWorks, asserting that his decisionto maintain a natural yard was astatement of sincerely held environ-mental beliefs. The board affirmed,and the landowner appealed to thetrial court, which granted summaryjudgment in favor of the board.

On appeal, the court rejectedthe landowner’s claim that Bloom-ington’s grass ordinance violatedArticle 1, Section 3 of the state con-stitution, providing that no “lawshall, in any case whatever, controlthe free exercise and enjoyment ofreligious opinions, or interfere with



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the rights of conscience.” To find a violation, the court reasoned,“would be tantamount to declaringnearly every statute and ordinanceon the books in Indiana unconsti-tutional” since each conflicts withthe sincere beliefs of someone. Thecourt also distinguished holding anopinion – which Section 3 protects– from practicing that opinion,which Section 3 does not.

Addressing the landowner’sclaim that the ordinance violatedthe constitutional right to freeexpression, the court rejected bothhis federal and state law claims. The landowner’s federal claimfailed, explained the court, becausehis yard was insufficiently “expres-sive” to communicate any specificmessage to an average person.Applying Indiana’s constitution,the court found that the expressioncommented on other landownersrather than the government, rendering it “apolitical”; citing evidence of harm to property values, the court concluded thatBloomington could rationally find an abuse of the right to expres-sion, satisfying its constitutionalburden. The court also rejected thelandowner’s statutory claims, find-ing no statutory limit on municipalauthority to regulate grass height.And affirming summary judgmentagainst the landowner, it held theordinary meaning of the word“grass” sufficiently precise to avoid unconstitutional vagueness.

Mandamus proceedings and funding for city court

The City Court of East Chicagowas properly awarded additionalfunds for court operations in man-damus proceedings against thecity’s common council. Orange v.Morris, 2014 WL 7357218 (Dec. 18)(Bradford, J.).

After the city’s common coun-cil reduced the budget for the citycourt, the presiding judge filed in

circuit court a verified complaint in mandamus, seeking funding of$82,000 and expenses. The appoint-ed special judge denied the coun-cil’s motion to dismiss the com-plaint as contrary to the proceduresset out in Trial Rule 60.5. Afterholding a trial, the court orderedthe council to appropriate an addi-tional $65,000 to fund the citycourt and required each side to payits expenses. The council appealed,and the presiding judge cross-appealed.

Reviewing the “mandatedecree” of the special judge under a deferential standard, the Court ofAppeals found evidence sufficientto show the requested funds werereasonably necessary to operate thecourt. This evidence suggested thatthe court’s budget was compara-tively lower than other court bud-gets for Lake County municipali-ties, that the court spent less forsalaries in 2012 than in 2002, thatthe court faced challenges due to the low average income of thecity’s population and many Spanishspeakers, and that every courtemployee was needed to ensure itsproper operation. While the coun-cil also presented evidence, includ-ing showings of declining tax rev-enues and larger cuts to other areas,the court observed that it had iden-tified no area where the city courtcould reasonably reduce costs. The court also rejected the council’ssuggestion that money be divertedfrom probation funds, finding thatdiversion both unlawful and inimi-cal to judicial independence and itsrequirement “that sentencing deci-sions be entirely free of court andprobation fiscal considerations.”The court also held that the presid-ing judge was not required to fol-low the mandate procedures set outin Trial Rule 60.5 under the IndianaSupreme Court’s still-binding deci-sion in Gary City Court v. City ofGary, 489 N.E.2d 511 (Ind. 1986).

Addressing the cross-appeal, thecourt held that the nature of pro-ceedings on behalf of the city courtsupported a mandatory award ofappellate attorney fees and expens-es. It affirmed the trial court’s judg-ment and remanded the case forcalculation and award of fees andexpenses.

Whistleblower claim and ‘at will’ employment

Allegations that a formeremployer breached whistleblowerprovisions in an employee hand-book failed to state a claim forbreach of contract; but allegationsthat a former company officer had acted vindictively sufficientlyalleged malice to withstand dis-missal of the complaint’s claim fortortious interference with “at will”employment. Duty v. Boys and GirlsClub of Porter County, 2014 WL7201770 (Dec. 18) (Najam, J.).

A Boys and Girls Club employee was terminated followingher complaints about the account-ing practices of the club’s then-president and chief financial officer.The employee filed suit, allegingclaims for breach of contract and tortious interference with a contractual relationship. Aftersuccessive motions to dismiss andre-pleadings, the trial court dis-missed the complaint with preju-dice. The employee appealed.

Affirming the dismissal of the employee’s breach of contractclaim, the court found the com-plaint insufficient to allege a con-tractual relationship rather thanmere employment “at will.” Itrejected the employee’s claim thatthe club handbook – and morespecifically, its provisions barringretaliation against whistleblowers –created a unilateral contract, citingthe Indiana Supreme Court’s analy-sis of at will employment in Orr v.Westminster Village North, Inc.,689 N.E.2d 712, 717-18 (Ind. 1997).



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from the plant had contaminatedthe surrounding soil and ground-water. With respect to groundwatercontamination, they determinedthat remediation was neitherrequired nor feasible, and theTaiwan Environmental ProtectionAgency did not order a cleanup, inlarge part because it lacked the legalauthority to do so. In 2000, howev-er, the Taiwanese legislature passeda new statute that allowed for theimposition of retroactive environ-mental liability, and in 2002 thelocal environmental protectionbureau issued an order requiringgroundwater remediation.

The second plant, located inCircleville, Ohio, was also acquiredin 1987. Thomson operated it untilit was closed in 2004. As a result ofcontamination at that site, in 1994the Ohio EPA ordered Thomson toinvestigate the suspected contami-nation and develop a remediationplan. In 2011, a new order wasissued that requested additional soil sampling in an area not includ-ed in the 1994 order.

XL sold insurance policies toThomson, including for the cover-age years of 2000-02. Thomsonfiled claims under those policies for costs incurred in the Taiwanremediation and the Circlevilleinvestigation. XL denied coverage;Thomson sued for defense andindemnity coverage; and the partiesfiled cross-motions for summaryjudgment. The trial court deniedThomson’s motion and grantedXL’s motion on the theory thatknown losses precluded coverageunder XL’s policies.

The known loss doctrine statesthat one may not obtain insurancefor a loss that has already takenplace. Thus, the doctrine will barcoverage if an insured has actualknowledge that a loss has occurred,is occurring or is substantially


order directing the auditor to issuea tax deed. Rather than wait for thehearing set by the trial court, theowner filed a notice of appeal.

On appeal, the owner sought aruling that he received “insufficientnotice of the tax sale proceedings inviolation of his right to due process,thereby rendering [the bidder’s] tax deed void.” The court, however,noted that Indiana law makes taxdeeds incontestable except “byappeal from the order of the courtdirecting the county auditor toissue the tax deed,” and that suchappeals must be filed in the samecourt that issued the deed sincethey require factual determinationsabout its validity. It reasoned thatthe owner’s motion was proper assubstantively a request for relieffrom judgment under Trial Rule60(B); but the owner’s notice ofappeal was not. A Rule 60(B)motion, the court explained, is aprocedural prerequisite for appeal-ing the issuance of a tax deed andmust be ruled on to perfect theappeal. The court remanded thecase to allow the trial court to ruleon the owner’s motion.

Insurance coverage and the known loss doctrine

In a dispute over insurancecoverage for environmental conta-mination, the Indiana Court ofAppeals held that the known lossdoctrine was not a bar to coveragewhere the insured had actualknowledge of the contaminationbut lacked actual knowledge of thelegal liability to remediate the cont-amination at the time the policywas purchased. Thomson, Inc. v. XLInsurance America, Inc., 22 N.E.3d809 (Dec. 16) (Kirsch, J.).

Thomson purchased two man-ufacturing plants from GeneralElectric. The first, located inTaiwan, was purchased in 1987. As a part of the purchase, Thomsonand GE determined that solvents (continued on page 40)

Even if the club’s employee hand-book could otherwise constitute a unilateral contract, the court rea-soned, its express disclaimer of anysuch intent prevented a contractfrom forming. The court reverseddismissal, however, of the employ-ee’s tortious interference claim,noting that our supreme court hasheld tortious interference with an“at will” employment relationshipactionable. The court also foundthat by alleging the former clubpresident had acted vindictivelyand “in retaliation for Plaintiff’sinvocation of the Whistleblowerpolicy of [BGC],” the complaintadequately pleaded malicious conduct.

Tax deed order, appealability

An order granting the issuanceof a tax deed to the highest bidderat a tax sale must be appealed by filing a motion or action for relieffrom the trial court’s judgmentwith the issuing court; the order isnot directly reviewable by the Courtof Appeals. Holland v. Patelas, 22N.E.3d 840 (Dec. 17) (Riley, J.).

The county treasurer conduct-ed a public sale of property basedon unpaid property taxes. Thehighest bidder, who received a taxsale certificate, notified the recordowner that she intended to petitionfor a tax deed unless the propertywas timely redeemed. Rather thanredeem the property, the ownerfiled a motion to set aside the taxsale under a new cause number and without providing notice to thebidder. The bidder then successful-ly petitioned the original court for atax deed. After discovering the par-allel filings under a different causenumber, the issuing court vacatedits order and held a bench trial, rul-ing in favor of the bidder when theowner did not appear. The ownerfiled a motion to correct error and“set aside,” and then moved for aninjunction after the court issued an

RG 04.15_RG 09.05 4/16/15 2:23 PM

certain to occur on or before the effective date of the policy.However, the doctrine does not barcoverage when the insured policy-holder only knows of conditionsthat might, if the law was different,lead to liability. The Court ofAppeals determined that the trialcourt had confused the environ-mental contamination itself withthe legal liability to remediate it. As a result, with respect to coveragefor the Taiwanese remediation, theCourt of Appeals reversed summa-ry judgment, finding that Thomsonwas entitled to coverage. Similarly,with respect to the Circleville plant,Thomson sought coverage for thearea in the 2011 order that had notpreviously been subject to the OhioEPA’s decree. As a result, the Courtof Appeals found an issue of mater-ial fact as to whether Thomson hadactual knowledge of its liability atthis location prior to its purchase of the policies.

Statute of limitations for written contracts

On a claim for breach of anagreement to purchase stock for a set price and to either satisfy amortgage on real estate or conveythe real estate deed by certain dates,the Indiana Court of Appealsaffirmed application of the 10-yearstatute of limitations for writtencontracts other than those for thepayment of money, rather than the6-year limitation period for writtencontracts for the payment ofmoney. Folkening v. Van Petten, 22N.E.3d 818 (Dec. 16) (Crone, J.)

Van Petten and Folkening wereinvolved in several business rela-tionships, including an agreementunder which Van Petten providedconsulting services and a mortgageloan obtained by Folkening and co-signed by Van Petten. In exchangefor co-signing, Van Petten provideda 50-percent ownership interest inthe real estate and 10-percent own-

ership in a company he owned.Subsequently, the parties enteredinto a release and settlement agree-ment under which Folkening andhis co-defendant entities agreed to pay Van Petten $175,000 inexchange for the repurchase ofstock held by her in the companiesand to pay off and satisfy the co-signed mortgage. In the event thecompany failed to satisfy the mort-gage, Van Petten agreed to deliverthe deed to the underlying propertyby a certain date. The agreementalso included mutual releases, anindemnification clause and a non-disparagement clause.

Folkening never performedunder the release agreement, butmore than six years passed beforeVan Petten filed a complaint forbreach of contract. Before trial, thedefendants filed a motion to dis-miss and a subsequent motion for summary judgment, arguing(unsuccessfully) that Van Petten’sclaim was barred by the 6-yearstatute of limitations that applied to written contracts for the pay-ment of money. The defendantsreasoned that in substance theaction was for the payment ofmoney. The trial court disagreed,concluding that the proper analysiswas to examine the substance of thecontract, which concerned morethan just the payment of money.

The Indiana Court of Appealsaffirmed the trial court, viewing thequestion as a matter of statutoryinterpretation. It found the plainlanguage of the statute – IndianaCode sections 34-11-2-9 and -11 –unambiguously establishes that thelimitations period is based on thesubstance of the contract and noton the substance of the action. Itwas undisputed that the settlementagreement was the basis for VanPetten’s claims, and the Court ofAppeals agreed with the trial courtthat the agreement concerned morethan the payment of money. The

Court of Appeals reasoned that traditional agreements for the pay-ment of money such as checks orpromissory notes are strict agree-ments to pay money to anotherparty only, rather than agreementsto pay money in exchange forsomething else, such as goods, services, stock shares or real prop-erty. And the Court of Appeals waspersuaded that the inclusion ofrelease, indemnification and non-disparagement clauses, as well asprovisions for the conveyance ofthe real estate, further removed the agreement from the narrower6-year limitation period.

Initiating a suit continues to require strict compliancewith Trial Rule 3

The Indiana Court of Appealsreaffirmed its strict application ofthe statute of limitations in a per-sonal injury case, dismissing theplaintiffs’ claims where the com-plaint and filing fee were timelyfiled, but the summonses were tendered three days late. Smith v.Haggard, 22 N.E.3d 801 (Dec. 11)(Mathias, J.).

On Nov. 3, 2011, plaintiffswere injured in a car accident andincurred medical expenses as aresult. Their attorney preparedthree separate complaints againstthe allegedly responsible driver. The attorney timely mailed thethree complaints and filing fees to the clerk via certified mail onNov. 2, 2013, but summonses andthe attorney’s appearance was notenclosed. On Nov. 6, the attorneyfaxed his appearance and sum-monses for all three cases to theclerk.

Defendant filed a motion todismiss based on the 2-year statuteof limitations. Plaintiffs contendedthat they had substantially com-plied with Trial Rule 3, which statesthat a civil action is commenced“by filing with the court a com-



RG 04.15_RG 09.05 4/16/15 2:23 PM

plaint … by payment of the pre-scribed filing fee … and, where ser-vice of process is required, by fur-nishing to the clerk as many copiesof the complaint and summons asare necessary.” Plaintiffs furtherargued that no prejudice could beshown because the summonseswere filed within four days of thecomplaints. The trial court grantedthe motion to dismiss.

The Court of Appeals affirmed,reiterating its prior rejection of thenotion of substantial compliancewith Trial Rule 3. Acknowledgingthat dismissal of the complaint pro-duces a harsh result and may seemat odds with the goal of resolvingcases on their merits, the court con-cluded this preference does not dis-place the legislative policy protect-ing courts from stale claims andensuring that parties are given rea-sonable notice that a claim is beingasserted against them. Further, a substantial compliance argumentwould require a court to disregardthe clear language of Trial Rule 3.

INDIANA SUPREME COURTACCEPTS TRANSFER

• Selective Insurance Co. of South Carolina v. Erie Exchange, 14 N.E.3d 105 (Ind. Ct. App. 2014)(addressing whether the plaintiffbuilding owner and its insurer werecovered as additional insureds on acommercial general liability insur-ance policy issued to tenants cover-ing the leased premises and, if so,whether a coverage exclusionapplied), listed on the Dec. 19transfer list.

• Markey v. Estate of Markey, 13 N.E.3d 453 (Ind. Ct. App. 2014)(addressing whether stepson’s claimfor breach of contract to make awill was timely filed against step-mother’s estate), listed on the Dec. 19 transfer list. �1. Excluding disciplinary proceedings.

Indiana Supreme Court awards grants totaling more than $242,000

The Indiana Supreme Court awarded $242,911 in grant money to benefit local family court projects across the state. The grants (rang-

ing from $4,000 to $35,000) were awarded to the following counties:

Judge Charles Pratt, Allen County – $35,000

Judge Cynthia Ayers, Marion County – $30,000

Judge Cynthia Ayers, Marion County IV-D Court – $30,000

Judge Judith Stewart, Brown County – $20,000 (shared withJackson/Lawrence Co.)

Judge Bruce MacTavish, Jackson County – $20,000 (shared withBrown/Lawrence Co.)

Judge Andrea McCord, Lawrence County – $20,000 (shared withBrown/Jackson Co.)

Judge Elizabeth Tavitas, Lake County – $20,000

Judge Thomas Stefaniak Jr., Lake County – $20,000

Judge Thomas Alevizos, LaPorte County – $15,000

Judge Mary Margaret Lloyd, Daviess/Pike/Vanderburgh/Vigo/WarrickCounties – $12,000

Judge Thomas Busch, Tippecanoe County – $10,000

Judge David Bonfiglio, Elkhart County – $10,000

Judge Frances Hill, Monroe County – $10,000

Judge Dena Martin, Greene County – $6,184

Judge Michael Robbins, Lawrence County – $6,002

Judge Douglas Fahl, Whitley County – $5,000

Judge Alison Frazier, Jefferson County – $5,000

Judge Lori Thatcher Quillen, Owen County – $4,725

Judge Gary Smith, Jennings County – $4,000

The Family Court Project began in 1999 with cooperation from theIndiana General Assembly. Since then, the Supreme Court has distributednearly $3.5 million to support family court projects across the state. The grants are considered “seed money,” and pilot counties are expected to transition within a reasonable time from “seed” funding to local funding.

The grants are designed to create innovative programs that improve thecourt process for families. Priority was given to applications that emphasizedfour areas of programming:

1. Access to Justice – improving access to the courts for families withoutattorneys

2. ADR/Early Case Management – promoting timely resolution of cases

3. Court-Related Services – implementing other programs that supportfamilies throughout the court process

4. Judicial-Academic Partnerships – engaging academic partners in researching and analyzing court practices and services, and identifyingevidence-based practices

More information on the Family Court Project is available atcourts.in.gov/family-court. �


RG 04.15_RG 09.05 4/16/15 2:23 PM

During December theIndiana Supreme Courtdecided cases involving

the public intoxication statute, thecourse-of-investigation exceptionto the hearsay rule, and the appro-priateness of a sentence for dealingmethamphetamine. The IndianaCourt of Appeals issued opinionsaddressing a wide variety of issuessummarized below.

INDIANA SUPREME COURT CASES

Public intoxication is not unconstitutionally vague(nor a blank check for lawenforcement)

As amended in 2012, the pub-lic intoxication statute criminalizesa person’s appearance in publicwhile intoxicated under only limit-ed circumstances, including whenthe person “harasses, annoys, oralarms another person.” Ind. Code§7.1-5-1-3(a)(4). In Morgan v.State, 22 N.E.3d 570 (Ind. 2013),the Indiana Supreme Court consid-ered a vagueness challenge to theterm “annoys” in the statute. TheCourt acknowledged that a subjec-tive application of the term “wouldlead to absurd results and exceed-ingly broad discretion in enforce-ment.” Id. at 576. Therefore, basedon the longstanding purpose of thestatute and precedent, the justices

concluded “that the application of a reasonable personstandard to the term‘annoys’ satisfies con-stitutional require-ments.” Id. at 577.Thus, a conviction canonly be sustained if thedefendant’s conductwould annoy a reason-able person. Id.

Turning to thesufficiency of the evidence, the Court

noted that a police officer observedthe defendant sleeping at a busshelter, and the defendant initiallyrefused to leave, became agitated,and swayed when he stood up toexit. Id. at 578. Noting that thedefendant did not yell or makeunreasonable noise – and that hisagitation upon being awakenedwould not be viewed as annoyingby a reasonable person – the Courtfound insufficient evidence to sup-port the conviction. Id. at 578-79.

Course-of-investigation exception is narrow

In Blount v. State, 22 N.E.3d559, 565 (Ind. 2014), the IndianaSupreme Court considered whethera detective’s testimony about hisconversation with a witness and her son was inadmissible hearsay“because it conveyed to the jury the substance of their out-of-courtstatements: that ‘Big D,’ or [thedefendant], was the person whofired the weapon.” The Courtemphasized the potential for abuseof such course-of-investigation testimony, which is only excludedfrom hearsay for the narrow pur-pose of bridging gaps in testimony“that would otherwise substantiallyconfuse or mislead the jury.” Id.(quoting Jones v. Basinger, 635 F.3d1030, 1046 (7th Cir. 2011)). Apply-ing the three-part test of Craig v.State, 630 N.E.2d 207, 211 (Ind.1994), the Court found the testimo-ny inadmissible.

Nevertheless, the convictionwas upheld because the error washarmless. Beyond the civilian wit-ness’ identification, the detectivewho was conducting surveillancehad a “clear view” of the defendant,saw no one else near him when heshot the gun, and identified himfrom a photo array and in opencourt. Blount, 22 N.E.3d at 568.

Dealing methamphetamine sentence reduced in 3-2 opinion

In Park v. State, 22 N.E.3d 552,554-55 (Ind. 2014), the IndianaSupreme Court reviewed a 40-year sentence (26 years in theDepartment of Correction, fouryears in Tippecanoe CommunityCorrections, and 10 years suspend-ed to probation) imposed upon adefendant convicted of dealingmethamphetamine, a Class Afelony, who had a criminal historyand history of substance abuse. The three-justice majority conclud-ed in its “collective judgment” that the sentence was excessive andremanded the case to the trial courtfor a “more appropriate sentencegiven the nature of the offense and character of the defendant”: 30 years (20 in the Department ofCorrection, two on CommunityCorrections, and eight suspendedto probation).

Justice Dickson, joined byJustice Massa, dissented, conclud-ing the case was not “sufficientlyrare or exceptional to warrantappellate intrusion into the trialcourt’s sentencing decision.” Id. at 556. The dissent emphasized the“serious nature of the offense” –manufacturing meth “in a residen-tial area where families with severalyoung children lived” – and thepoor character of the defendant,who committed the offense whileon probation and whose criminalhistory was “riddled with such pro-bation violations and revocations.”Id. at 557-58. Finally, taking aim atthe “relatively little modification”of executed time from 30 to 22years, Justice Dickson observed thatIndiana’s appellate sentence reviewand revision capacity “does notwarrant such minor adjustments.”Id. at 557.

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Public intoxication, insufficient evidence, other holdingsBy Prof. Joel M. Schumm


Joel M. SchummClinical Professor of LawIU Robert H. McKinney

School of LawIndianapolis, Ind.

[email protected]

RG 04.15_RG 09.05 4/16/15 2:23 PM

INDIANA COURT OF APPEALS CASES

Insufficient evidence of intimidation

In Soucy v. State, 22 N.E.3d 683(Ind. Ct. App. 2014), an incarcerat-ed defendant called his mother to ask that she relay threats to awoman who had assisted police inarresting him for a probation viola-tion. His mother refused to conveythose threats. Id. at 684. Becausethe intimidation statute requires“communication such as to influ-ence conduct or place a person infear of retaliation,” the Court ofAppeals concluded that an essentialelement was not proven withoutfurther dissemination of the threatsto influence or impact the intendedrecipient. Id. at 686. Even thoughthe defendant had pleaded guilty to the charge, the Court of Appealsfound the defendant was entitled to post-conviction relief because his lawyer was ineffective by failing“to advise him on an overlookeddefense of actual innocence.” Id.

Perjury conviction reversed

Among many issues raised byformer Secretary of State CharlesWhite, the Court of Appeals con-sidered whether providing hisincorrect address on a marriagelicense application supported aconviction for perjury. White v.State, 25 N.E.3d 107 (Ind. Ct. App.2014). Reiterating longstandingprecedent that a conviction cannotbe supported if the false informa-tion is “of no importance or imma-terial,” the court reversed the con-viction because the only materialresidence information was thecounty – not the street address –and White included his correctcounty of residence. Id. at 123.Others may not fare so well in thefuture, though. A separate statutecriminalizes furnishing false infor-

mation on a marriage license. Id.(citing Ind. Code §31-11-11-1). But prosecutors did not pursue that charge against White.

Sitting in the driver’s seat of a parked car is ‘operating’

In 2013, the General Assemblyadded the following definition of“operate” to Title 9, which includesdriving offenses like operating avehicle while intoxicated: “to navi-gate or otherwise be in actual physi-cal control of a vehicle.” Ind. Code§9-13-2-117.5. In West v. State,22 N.E.3d 872 (Ind. Ct. App. 2014),the Court of Appeals was asked toapply the new definition for thefirst time. Because the defendantwas found sitting in the driver’s seatwith the engine running, the courtfound sufficient evidence that shewas in “actual physical control” asrequired by the statute. Id. at 876.

Supplying a fictitious name is not identity deception

After being stopped by police,Christopher Duncan identifiedhimself as George Walker and latersupplied the same name and a dateof birth of April 6, 1967 when hewas booked in the local jail. Duncanv. State, 23 N.E.3d 805, 808 (Ind.Ct. App. 2014). The State offeredno evidence at trial that the nameand date of birth belonged to a realperson. Id. at 814. Relying heavilyon Brown v. State, 868 N.E.2d 464(Ind. 2007), which had reversedconvictions for identity deceptionagainst a man who pretended towork for a radio station and used a fake name, the Court of Appealsreversed Duncan’s convictionbecause “the identity deception


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Nonmembers60¢ per word, $15 minimum

EmploymentOpportunities

ASSOCIATE ATTORNEY POSITION:Associate wanted to join fast-growingestate & farm succession planning prac-tice that will be located in Peru, Ind. This position involves a supporting rolein the comprehensive planning processfor high net worth farm families withsophisticated operations, includingattendance of client meetings, draftingestate planning documents and clientcommunications, drafting business entity governing documents with focuson buy-sell agreements, and workingwith other members of a client’s team of advisors to implement plans. A quali-fied candidate should be a self-starterwith impeccable attention to detail and have exceptional organizational and written & oral communication skills.A background in agriculture would beideal. The right candidate will have a desire to be mentored by a partnerinvested in his or her growth as a lawyerwith an eye toward a long-term sharedcareer and the ability to work both independently and with other attorneysand staff in a small firm. After a period of training, flexible remote workingarrangements may be available. A J.D.from an accredited law school and anactive Indiana bar license are required.We offer a competitive compensationpackage, and salary is commensuratewith experience. Please send cover letter, résumé and writing sample to:[email protected].

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INDIANAPOLIS LITIGATION attorneyavailable for wide range of litigation andappellate assignments. More than 25years as litigator. Have handled morethan 30 appeals. Either employment or contract arrangement possible.Ronald G. Sentman, 317/875-6702,[email protected].

WORKER’S COMPENSATION.Evansville attorney Kevin R. Bryantseeks referrals on worker’s compensa-tion cases statewide. Please telephone812/437-9991.

ERISA CLAIMS, long-term disability,health insurance claims, life insuranceclaims. Contact Bridget O’Ryan, 317/255-1000, 1901 Broad RippleAvenue, Indianapolis, IN 46220,[email protected]

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statute does not criminalize the useof a fictitious name.” Id. at 813.1

Prosecutorial misconduct meets high standard for fundamental error

In December the Court ofAppeals ordered publication of itsearlier not-for-publication memo-randum decision on rehearing inBrummett v. State, 21 N.E.3d 840(Ind. Ct. App. 2014). That opinionreaffirmed the court’s earlier deci-sion that found the prosecutor’smisconduct “much more egregiousthan that in Ryan [v. State, 9 N.E.3d663 (Ind. 2014)]” such that it quali-fied as “fundamental error underthe standard now to be used” fromRyan.2�1. Although not charged in the case or discussedin the opinion, a person who refuses to pro-vide his name, address and date of birth to a law enforcement officer who stops him foran infraction or ordinance violation commits a Class C misdemeanor. Ind. Code §34-28-5-3.5.

2. The Indiana Supreme Court granted transferin February of 2015 to summarily affirm theCourt of Appeals except for the reference to“the standard now to be used.” Brummett v.State, 24 N.E.3d 965 (Ind. 2015). The justicesexplained that Ryan had not altered the doctrine of fundamental error and thus the rehearing opinion language was “potentially misleading.” Id. at 966.

CRIMINAL JUSTICE NOTEScontinued from page 43

ISBA members:

Update youraddresses

email & postal online at

www.inbar.org

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STEVE TUCHMAN, IMMIGRATION.Experienced practitioner for statewidereferrals, consultation and co-counselpositions. Lewis & Kappes, P.C.,317/639-1210, [email protected]

WORKER’S COMPENSATION.Indianapolis attorney Charles A. Carlockseeks referrals on worker’s compensa-tion cases statewide. Tele., 317/573-5282 or 866/573-5283

LONG-TERM DISABILITY. AttorneyCharles A. Carlock seeks referrals on claims for long-term disability(ERISA) benefits. Tele., 317/573-5282or 866/573-5283

VETERANS DISABILITY. Acceptingreferrals of veterans' disability, militaryMedical and Physical EvaluationBoards, Courts Martial, military discharge upgrade and Boards forCorrection of Military Records casesthroughout Indiana and across the country. Bosley & Bratch, 800/9536224,[email protected],www.lawyers4veterans.com

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Miscellaneous

MEDIATION TRAINING: Certified 40-hour Domestic Relations MediationCourse, July 17-21, Fort Wayne. This course sells out. To register:www.janetmitchellmediation.com or 260/483-7660.

OFFICE SPACE: Attorneys located inthe Gold Building at 151 N. Delaware St. in downtown Indianapolis looking to share extra office space. Secretarialservices available. Possible referrals.Low rent. Reply to [email protected] reference “Gold Building” officespace.

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RG 04.15_RG 09.05 4/16/15 2:23 PM

FAIR

CO

MM

ENT

Wanted: 60 mentors in 60 days!By Hon. Steven H. David

approval that was curriculum based. The CLECommission has approved these materials for CLEand APC credits upon certification by the ISBA.The materials are designed for an in-house men-toring program, an outside mentoring program, a large firm program that is run in-house and a governmental attorney program based on anindividualized plan developed by the mentor and mentee. Thus, any lawyer in Indiana meetingthe requirements of these materials to serve as a mentor (or mentee) may obtain CLE (or APC)credits approved by the Indiana Supreme CourtCommission for Continuing Legal Education. This program is not limited to only new attorneysbut to any lawyer interested in being mentored.

Qualifications for the mentor

Each mentor must:

• be a licensed Indiana attorney and “activein good standing”;

• be admitted to the practice of law in Indianafor not less than five years;

• have a reputation among judges and peersin the local legal community for competence and ethical and professional conduct; and

• carry professional liability insurance withthe minimum limits of $100,000 per occurrenceand $300,000 in the aggregate, or its equivalent,except that judges, government attorneys, in-house counsel for a corporation, lawyersemployed by a non-profit agency or lawyers mentoring in-house are exempt from this requirement.

Also, if a potential mentor has a disciplinarycomplaint pending before the Indiana SupremeCourt, the individual must submit a written statement to the ISBA Mentor Match Programdescribing the circumstances of the complaint.

Come on! Help us get 60 mentors in 60 days!With the collegial spirit of Indiana’s bench andbar, we can do this!


The challenge: 60 mentors in 60 days!

Since late 2009, hundreds of lawyers inIndiana have benefited from having mentorshelp them navigate through the challenges

and recognize the opportunities that our profes-sion presents. As the chair of the State Bar’sProfessional Legal Education, Admission &Development (PLEADS) Section, I am saddenedto report that at the present time we are approxi-mately 20 mentors short. In other words, there are20 young lawyers in Indiana who have asked formentoring assistance, and we don’t have mentorsto assign them. We are 12,000 members strong,and yet we are 20 mentors short. Unacceptable!So, what are we going to do about it?

We are going to get 60 mentors in 60 days, but we need your help! This is an all-out challengeto all sections and to all individuals to refer namesto Maryann Williams at the ISBA on or beforeJune 26 at [email protected]. To the section of the State Bar that provides the most names ofmembers who agree to serve as mentors, the chairof PLEADS will provide a 1-hour ethics presenta-tion or a 1-hour general practice presentation. And to the individual who refers the most namesof members who agree to serve as mentors, lunch will be provided by the chair of the PLEADS section.

We are asking you to step up to the plate andpay it forward. There is no substitute for a good

mentor. The State Bar must standbehind its members. This is a greatopportunity to serve your fellowlawyer.

Mentors can also earn up to 12 hours of ethics credits, which are awarded to participants who complete the program. And there is no cost to the mentor (or mentee). The PLEADS Section of the ISBAundertook the process of compilingand submitting a program for

Justice Steven H. DavidIndiana Supreme Court

Zionsville, Ind.

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Res Gestae - April 2015

Documents

Transcript of Res Gestae - April 2015