Res Gestae - June 2015

June 2015 Vol. 58, No. 10

INDIANA SUPREME COURT’SADVERSARIAL GUIDANCETO INQUISITORIAL JUVENILE COURTS

MAKING A DIFFERENCEBY GETTING INVOLVED

LAWYER FEE FIGHTS

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

35 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

38 RECENT DECISIONS 2/15Curtis T. Jones and Jasmine Ivy-Dede, Indianapolis

42 CRIMINAL JUSTICE NOTES 2/15Prof. Joel M. Schumm, Indianapolis

46 FAIR COMMENTMichael D. Wilhelm, Fishers

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 GESTÆJune 2015 Vol. 58, No. 10

D E PA R T M E N T S8 LEADERSHIP

23 JUVENILE COURTS

RES GESTÆ • JUNE 2015 3

F E AT U R E S

8 MAKING A DIFFERENCE BY GETTING INVOLVEDBy Bill Brooks, Indianapolis

12 COMMITTEE MEMBERS NEEDED FOR 2015-16

16 ACHIEVEMENT AWARD NOMINATIONS SOUGHT

23 INDIANA SUPREME COURT’S ADVERSARIAL GUIDANCETO INQUISITORIAL JUVENILE COURTSBy Graham C. Polando, South Bend

7 LETTER 15 NOMINATING REPORTS 21 ESSAY CONTEST

35 FEE FIGHTS

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The Indiana State Bar Associationlaunched its online dues system thisspring so that members could renew

their membership electronically rather thanhaving to fill out a dues invoice and mailing it with a check (or credit card info). I encour-age members to pay attention to the new category pertaining to “sustaining members.”This “President’s Perspective” expresses why I believe it is important for ISBA members to support the Association in this and everyother way possible.

Most of us have heard someone commentabout the deteriorating effects of increasinglyself-interested people in modern society.Earlier this year in a “Prez Blog” post(https://isbaprez.wordpress.com), I suggestedthat evidence of such a decline appears in the 2015 Indiana Civic Health Index(https://isbaprez.wordpress.com/2015/03/24/2015-indiana-civic-health-index). Theresearch for that index does not distinguishdata by profession, but I suspect that it reflectsmember disengagement within most profes-sional communities comparable to theincreasing civic disengagement across all populations. This kind of disengagementthreatens any population group that sufferscultural or economic encroachment.

My comments at the ISBA Solo & SmallFirm Conference’s opening session earlier this month included a survey of the evolu-tionary consequences of conflicting legal service industry regulatory schemes. The point of my message was that such regulatory conflict pinched lawyers betweenexpanding federal antitrust enforcement and ascending client service and protectionexpectations.

An observer of my speeches and writingsthis year might characterize me as an alarmistabout the future of the practice of law.Certainly, recent articles by ISBA PastPresident Jim Dimos (https://isbaprez.wordpress.com/2013/12/20/canaries-in-the-coal-mine), Jordan Furlong (search thekeyword, “evolution,” in archived articles at www.law21.ca), I.U. Maurer School of LawProf. Bill Henderson (http://lawprofessors.typepad.com/legalwhiteboard/2014/03/a-counterpoint-to-the-most-robust-legal-market-the-ever-existed-in-this-country.html)and others have persuaded me to think thatthe legal profession must redefine itself withinthe global economy’s explosive evolution.

We shouldn’t forget what our law professors taught us, but very few “sacredcows,” if any, should impede the legal profession’s progress as an essential societalresource. If our traditions and customs mandate something, we should ask “why” and evaluate the response critically. If thosetraditions and customs tell us that we shouldnot do something, we should ask “why not”and evaluate the response equally critically.Some things may be sacred, but they shouldbe scarce and entirely essential to a sustainablepractice of law in successive generations.

A panel discussion at the NationalConference of Bar Presidents (NCBP) meet-ing during the ABA Midyear Meeting inHouston earlier this year included a provoca-tive panel discussion about the future of thepractice of law. Toby Brown, chief practiceofficer for Akin Gump Strauss Hauer & Feld and one of the NCBP panelists, laterwrote in a “3 Geeks and a Law Blog” post(http://www.geeklawblog.com/2015/02/the-profession-is-doomed.html) about hisimpressions: “Recently I participated on a panel on the future of the profession for the National Conference of Bar Presidentsand walked away thoroughly convinced the profession is doomed.” Mr. Brown wenton to write:

For a long time I have held out hope that thelegal profession would step up and address the needs of the market: for both lawyers andclients. After this experience, I have come to thehard conclusion: That is not going to happen. As smart as lawyers are, their training and experience have made them a reactive and dogmatic group. In their minds, the way theyhave been doing it is the only way to keep doingit. Anything else is a threat to the profession and their practicespecifically.

This all saddensme. Lawyers holda sacred duty tothe rule of law.Their inability to act means therule of law will be handed off

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]

CLE Coordinator Whitney Ruffin • [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]


PRESIDENT’S PERSPECTIVEJEFF R. HAWKINS

[email protected]

Indiana lawyers, united and strong

(continued on p. 7)

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If the medical profession is any indicator, we should fully expectinsurance companies and/or perhaps banks to become our future legal service providers.

When I read his blog post, I thought of this quote from MartinNiemöller (1892-1984), a GermanLutheran pastor and noted oppo-nent and concentration campdetainee of Adolf Hitler and the Third Reich:

First they came for the Socialists, and I did not speak out –Because I was not a Socialist.

Then they came for the TradeUnionists, and I did not speak out – Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out – Because I was not a Jew.

Then they came for me – and therewas no one left to speak for me.

I reached out to Mr. Brown and assured him that many lawyers across the country see the issue clearly and take it seriously. I do not believe that our future is as dire as Mr. Brown’s blog post suggests, but we must focus our attention on future practice issues more effectively. If you have ever heard a lawyer joke, you must realize that no one outside of our profession will fight for us on the battlefield of public opinion and economic prosperity – we will stand or fall as a profession without allies, defenders or protectors.

ISBA members have been promoting and defending the legal profession through public service, industry advocacy and consistent volunteerism in Association activities for more than a century. A group of such lawyers, judges, state supreme court agency officials and law school professors are gathering this month for the 2015 Conclave on Legal Education at the I.U. Robert H. McKinney

School of Law to evaluate our present and alternative courses in facets of legal education, baradmission, bench and bar disci-pline, and the sustainable practiceof law. Each previous conclave has produced shared perspectivesthat advanced our progress in thosesubjects measurably, and I look forward to this conclave’s progres-sive conclusions.

Our younger lawyers are notwaiting for the old-timers to solveall of the world’s problems. In aMay 18 “Prez Blog” post, I congrat-ulated our recently graduated 2015 class of the LeadershipDevelopment Academy andencouraged all ISBA members to pursue these goals in our common interest:

1. Perceive emerging legalprofession problems and respond tothem optimally before they becomecrises.

2. Seek opportunities to collaboratewith diverse partners within and out-side of the ISBA.

3. Be vigilant about defining diver-sity and inclusion to ensure that weexclude no ISBA members from thebenefits and responsibilities of activemembership

We must focus our attentionon issues for the common good ofall lawyers. We may differ on manythings that similarly divide otherAmerican societal populations, butwe must never divide irreconcilablyon matters related to legal educa-tion, bar admission, bench and bar discipline, and the sustainablepractice of law. Even in those sub-jects, we must resolve differences in favor of visionary results with-out impediment by superfluous,romantic ideals. We will build and preserve enduring essentialityin American and Hoosier society if we pool our resources as a strongbody united under the banner of the Indiana State BarAssociation. �

Statute of repose to protect retiring attorneysDear Editor:

I wish to encourage allIndiana attorneys who may be contemplating retirementto read carefully our ISBA“President’s Perspective” in the April issue of Res Gestae.

In it President Hawkinshas included an extremelyhelpful interview he recentlyhad with Jennifer Ritman, our Association’s endorsedinsurance agent.

The gist of the interview is the revelation that ISBA’slegislative proposal for settinga statute of repose for the ben-efit of retirees is simply unnec-essary! Ms. Ritman, who hap-pens to be my own trustedagent, sets forth the simplisticrequirements to obtain suffi-cient inexpensive or free“tail coverage,” which is what I personally anticipate obtain-ing upon retirement.

Thus, a statute of reposeto protect adequately coveredretiring attorneys or mergedfirms is simply unnecessaryunless such an attorney orfirm has chosen to “go bare”or underinsured. Previousclients need to be protected,but the way to do that is notby creating an immunity forerrant attorneys, but rather by obtaining adequate insur-ance that is readily availablefree or at a reasonable price.

Very truly yours,

Daniel A. Roby, Ft. Wayne Past President, Indiana Trial Lawyers Association [email protected]

LETTERPRESIDENT’S PERSPECTIVE continued from page 5


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According to Lt. Col. BarryHon, “It’s a special opera-tions heaven, one of the

nation’s biggest secrets.” Not tomembers of the Indiana State Bar Association’s four LeadershipDevelopment Academy classes for whom the Muscatatuck UrbanTraining Center near Butlerville,Ind., has become a rite of passageand a test of paintball skills.

If Muscatatuck is the obviousstar of the annual April show, it shares top billing with anotherperennial highlight – a talk by Col. Daniel Kozlowski, Staff JudgeAdvocate for the Indiana NationalGuard. This particular year, howev-er, there was an additional persondeserving of top billing – anotherwho had worn the Army green in a time when the bullets were real amid life-and-death stakes.

That man was Justice RobertD. Rucker of the Indiana SupremeCourt, four decades removed fromthe military milieu, a man who had jumped out of helicopters inVietnam, a man who had earnedtwo Purple Hearts and a BronzeStar.

“How do we get the right stuffon the inside to make a differenceoutside?” Rucker asked the acade-my class. He said people may askthemselves how just one person can make a difference, adding that Dr. Martin Luther King Jr.“reminded us that everybody canbe great because anyone can serve.”

Rucker said the people whomake a difference in the world arenot those with many credentials orawards, but instead “the ones whocare and get involved.” He said thatas attorneys – and even more so asLeadership Development Academygraduates – the classmates wereuniquely qualified to make such a difference.

“People expect you to havesomething to say,” Rucker said. “So speak up.”

Kozlowski’s message focusedon the willingness to take chances.In a talk liberally peppered with literary references, the IndianaNational Guard’s top lawyer quotedTheodore Roosevelt: “There is noeffort without error and shortcom-ing.” Said Kozlowski, “Be the doerof deeds. You will learn more fromyour failures than your successes.Don’t be afraid to jump in.”

The ebullient Kozlowski alsospoke on the issue of ethics, ofcharacter. “Leadership challengestend to be your ethical challenges,too.” He said the LeadershipDevelopment Academy gives attorneys a chance, away from their normal routine, to thinkabout how they want to define their own character.

“Ethical challenges,” he said,“are not between good and evil.”(Evil, he said, takes a lot of work –too much.) Instead, he said, “Thechoice is between good and easy.”He said that although any organiza-tion’s lawyers don’t usually bear the official title of “ethics officer,”that is exactly what the lawyer is.“Nobody will take your advicewhen you lose your integrity,” he said. “Lose your integrity, you lose everything.”

The Leadership DevelopmentAcademy session also featured apanel discussion on the subject ofdiversity in the military. That panelincluded Brigadier Gen. Wayne L.Black, Assistant Adjutant General – Army, Indiana National Guard;Capt. Kenneth Washington, Staff Judge Advocate for CampAtterbury and the MuscatatuckCenter for Complex Operations;and J.T. Parker, Chief of Staff,Indiana Prosecuting AttorneysCouncil. The panel was moderatedby LDA Committee member andsession staple Justice Steven David,

Indiana Supreme Court, who is alsoa retired colonel in the Army JAGCorps.

Diversity remains a challenge,the group agreed. There are fewminorities at the top (Gen. Blackbeing an exception) and notenough women in high-rankingpositions. And not unlike theIndiana General Assembly, the military has also struggled with the gay issue – although thepanelists agreed that the Army has been ahead of that curve. Capt. Washington said the Army is a diverse organization. “You haveto know and trust your brothers,”he said. “Or the mission could fail,and people could die.”

The Muscatatuck sessionaddressed another type of diversity– generational. Charlotte Wester-haus-Renfrow, senior lecturer of management at IndianaUniversity’s Kelley School ofBusiness, spoke about how peoplefrom four distinctly unique genera-tions can co-exist and succeed in the same law firm.

She outlined how each genera-tion (the “Silents,” born beforeWWII, Baby Boomers, Gen X andMillennials) has been shaped byworld events and societal changes,and how that has affected howthose diverse people view the work-place, how they work, how theywant to be recognized, and howthey treat authority.

Westerhaus-Renfrow, whoholds a law degree and also leads a consulting firm, warned her audience of the troubles that await “if you only focus on behaviors, but don’t look at core values andcultural roots.” She added, “Culturecan be a barrier to change, to diver-sity.”

The fourth session of thisyear’s Leadership DevelopmentAcademy also included a panel discussion on veterans treatment

LEADER

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YMaking a difference by getting involved

By Bill Brooks

8 RES GESTÆ • JUNE 2015

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courts, in particular the VeteransCourt of Southern Indiana, whichis supervised by Judge Maria D.Granger of Floyd Superior Court 3.She was joined by the multi-disci-plinary group of people who havemade the court a success.

The panel included a graduateof the Veterans Court program, a man whose post-war drug issueshad cost him his business and, for a while, his family. Those problemshad also landed him in criminalcourt, where he was accepted intothe diversion program. His heart-felt, personal story illustrated thepromise offered by such courts.

Panelists agreed that the pro-gram is extremely demanding, that not all veterans who land incourt qualify – and that it is only a success because of the teamworkbetween the U.S. Department of Veterans Affairs, the IndianaNational Guard, defense and

prosecuting attorneys, case man-agers and mentors.

Veterans who land in court,Judge Granger said, “look like civilians, but they bear the scars of war underneath.” She said theVeterans Court program “has theunique ability to look beyond – toask what services does this personneed to change his or her life.”

Gen. Black had a second turnon the dais. He spoke of both therewards and challenges faced bysoldiers and airmen – especially in reintegrating with their familiesafter extended deployments in theMiddle East. He also addressedleadership in the military, notingthat leadership style changes as youprogress up the ranks. As a lower-ranking officer, he said, you’re closer to the issue. In higher ranks,he said, it becomes easier to sepa-rate yourself from the problem –and adjudicate it better.

In his solo turn at the podium,Black also gave an overview of theIndiana National Guard’s role inIndiana and the world. He notedthat the state organization has14,500 soldiers and airmen, ofwhich 2,209 are full-time person-nel. The Guard also has $2 billionin infrastructure and $1 billionworth of military equipment. It operates in collaborationsstretching across the globe, includ-ing a partnership for the past 20years with Slovakia, a joint opera-tion with Israel, and a buddingpartnership with Kenya.

The LDA class spent a little more than 24 hours atMuscatatuck, the military wonder-land nestled in the gently rollinghills of southern Indiana, but thevisit was packed with adventureand information.


The ISBA Leadership Development Academy at the Muscatatuck Urban Training Center

(continued on page 10)

Photo by Vincent Morretino

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Lt. Col. Hon kicked off the session with an overview of Muscatatuck, the former long-time site of a state hospital for people with severe developmentaldisabilities. It now serves as a com-plex training site for military per-sonnel, first responders, police andfirefighters. The site can replicateboth a “City in a Failed State” and a “City in Distress,” Hon said. Oneday it’s Afghanistan, the next dayperhaps New Orleans. The siteboasts everything from a five-storyhospital to an underground subwaystation, a derailed train, a floodedcommunity, a collapsed parkinggarage, an Afghan market, search-able tunnels, and even the latest in high-tech apparatus for cyber-warfare experiences.

While the base commanderspoke, the classmates could hearexplosions and the sound ofBlackhawk helicopters, evidence the Canadian Special Forces wereinvolved in exercises that particularday. “We tie all those dimensionstogether,” Lt. Col. Hon said, “to do what our nation needs.” �

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

MAKING A DIFFERENCEcontinued from page 9


ISBA’s Annual Day of Service

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

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

WHEN: Saturday, Sept. 19

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

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

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

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

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

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

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

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AUG. 20, 2015

AUG. 20, 2015

Carol M. Adinamis,Westfield, ISBA president-elect, will soon begin the

process of appointing members to our various committees for the2015-16 operational year. The StateBar wants and needs you to partici-pate in the important work of yourprofessional association!

Much of the work of the State Bar is accomplished by itsstanding and special committees.Consequently, it is vitally importantto select members who are dedicat-ed and willing to devote time andeffort to the challenges facing theprofession and the Association.

Standing committees are estab-lished by ISBA bylaws and usuallyconcerned with matters of ongoinginterest. The bylaws provide thatstanding committees have a mini-mum number of members in stag-gered, three-year terms. If you arealready on a standing committee,you need not reapply unless yourthree-year term expires in 2015. If it does, you should reapply inorder to remain on the committee.

Special committees are established by the ISBA Board ofGovernors to accomplish specialassignments or study emergingtrends. They have no less signifi-cance than standing committees,but the terms of the members arefor only one year. You must reapplyeach year, or you may be removedfrom the committee.

Although it is impossible toappoint everyone to his or her firstchoice, every effort will be made to accommodate any member who expresses an interest in service.All members interested in servingon a committee should fill out theform on the adjacent page, indicat-ing first and second preference(s)only, and return the information to ISBA Executive Director TomPyrz by Aug. 28.

Standing CommitteesThe Affiliate Membership

Committee encourages Associationmembership of paralegals, lawlibrarians, legal administrators and court administrators.

The American CitizenshipCommittee espouses the advan-tages of American citizenship andassists the federal courts in makingnaturalization ceremonies moremeaningful.

The Articles & BylawsCommittee exercises parliamentaryjurisdiction for the Association;reviews the articles and bylaws; prepares additions, deletions andamendments whenever appropri-ate; and recommends the same to the Board of Governors.

The Attorney Fee DisputeResolution Committee is exploringthe need for and feasibility of astatewide attorney fee dispute reso-lution process that would comple-ment but not compete with existinglocal programs.

The Aviation Law Committeemakes a continuing study of andrecommendations pertaining to aircrash litigation, aviation laws andregulations, safety and insurancerequirements for private and com-mercial aircraft operating withinthe state, and other matters perti-nent to aviation and space laws.

The Casemaker ImprovementCommittee will determine how to increase usage by members,including initiatives such as betterinforming members of the benefit,offering training to members andimproving the offerings and opera-tions of Casemaker.

The Committee on CivilRights of Childrenmakes a contin-uing study of laws pertinent to the civil rights of children andreports its findings and recommen-dations to the Board of Governors.The ISBA in collaboration with the Indiana Commission on

Disproportionality in YouthServices sponsored the “Summit on Racial Disparities in the JuvenileJustice System: A Statewide Dia-logue” in the summer of 2009. The committee recommendedaction in this regard, including legislation, HEA 1193, whichbecame law effective July 1, 2010.In 2011, the committee produced a follow-up report of the IndianaJuvenile Mental Health Screening,Assessment & Treatment Projectand also proposed a rule – the Right to Counsel in Juvenile CourtProceedings – for adoption andrecommendation to the IndianaSupreme Court. The rule passed the ISBA House of Delegates unani-mously, and the Supreme Courtamended Indiana Rules of CriminalProcedure, Rule 25, which waseffective Jan. 1 of this year.

The Clients’ FinancialAssistance Fund Committeeman-ages and administers the Clients’Financial Assistance Fund for thepurpose of maintaining the integri-ty and protecting the name of thelegal profession in Indiana.

The Diversity Committee pro-motes full and equal participationin the ISBA, our profession and the justice system by all persons.

The Federal JudiciaryCommitteemonitors all activitiesthat affect the federal court systemand federal court judges.

The Honors Committee isempowered, upon consent of amajority of the Board of Governors,to confer appropriate recognitionupon any person who has renderedoutstanding service to the legal profession. This committee alsoreports at each annual meeting ofthe Association the names of allmembers who have died since thedate of the last report.

The Committee onImprovements in the JudicialSystem promotes the election orappointment of properly qualified

ATT

ENTION

Committee members needed for next operational year


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candidates for judicial office. The committee also concerns itselfwith judicial salaries, pensions andtenure, and studies other facets of the judicial system in Indiana.

The Latino Affairs Committeeseeks to provide a unified voiceaddressing the legal issues uniquelyaffecting the Latino community inour state. The committee coordi-nates resources to ensure equalaccess to justice for Indiana’sLatino community, promotes thelegal concerns of Latinos within the broader legal community, andraises awareness of issues that affectthe Latino community.

The Law Practice ManagementCommittee studies, evaluates andrecommends improved methods of managing the practice of law tomaximize efficiency, productivity,effectiveness, pleasure and financialreward from such practice. Thecommittee also develops and rec-ommends projects and programsthat help members of theAssociation furnish high-qualitylegal services to their clients.

The Lawyer Advertising RulesReview Committee shall studyIndiana’s Rules of ProfessionalConduct concerning lawyer adver-tising and recommend any changesthat may be needed.

The Legal Ethics Committeeshall foster and promulgate highethical standards in accordancewith the rules of the IndianaSupreme Court. The committeeissues written opinions uponrequest. Opinions are formal orinformal. Formal opinions shall beon questions of first impression inIndiana and other matters warrant-ing general circulation in the judg-ment of the committee. Informalopinions shall be on questions pre-viously resolved by formal opin-ions.


(Please print or type)

NAME

ADDRESS

CITY/STATE/ZIP

Please indicate your order of preference by a #1 and/or a #2.

Standing Committees

____ Affiliate Membership

____ American Citizenship

____ Articles & Bylaws

____ Attorney Fee Dispute

Resolution

____ Aviation Law

____ Casemaker Improvement

____ Civil Rights of Children

____ Clients’ Financial

Assistance Fund

____ Diversity

____ Federal Judiciary

____ Honors

____ Improvements in the

Judicial System

____ Latino Affairs

____ Law Practice Management

____ Lawyer Advertising

Rules Review

____ Legal Ethics

____ Long Range Planning

____ Military & Veterans’ Affairs

____ Pro Bono

____ Public Relations

____ Service

____ Sexual Orientation

& Gender Identity

____ State Legislation

____ Technology

____ Unauthorized

Practice of Law

____ Wellness

____ Women in the Law

____ Written Publications

Special Committees

____ CLE

____ Courthouse Art

____ IndianaDocs

Please return to Tom Pyrz, Executive Director, ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204; 317/266-2588, fax; [email protected], email.(continued on page 14)

RG 06.15_RG 09.05 6/17/15 9:54 AM

The Long Range PlanningCommittee considers all facets ofthe Association’s operation, includ-ing facilities, personnel, organiza-tional structure and mission, andrecommends long-range goals andprocedures to be followed in theirattainment.

The Military & Veterans’Affairs Committee shall exploreand identify legal issues and needsof service members (active duty,Guard or Reserve) living in Indianaor stationed and deployed outsideof Indiana, and assist service mem-bers and veterans with such needs;continue the Lawyers for SoldiersProgram, which provides pro bonolegal assistance to service members,veterans and their families; anddevelop a network of ISBA mem-bers (judges, JAGs and lawyers)interested in military and veterans’issues and assistance.

The Pro Bono Committeeis responsible for fulfilling theIndiana State Bar Association’scommitment to pro bono efforts asan integral part of its mission andlong-range planning. As such, thePro Bono Committee develops andimplements programs to educatemembers about the need for andopportunities to engage in probono civil legal services for thepoor, and encourages members to undertake pro bono representa-tion.

The Public RelationsCommittee is responsible for theformulation of Association PR poli-cies. This committee recommendsways to improve the relationshipbetween the public and the legalprofession by way of presenting thework of the ISBA and lawyers gen-erally through the use of the press,radio, television and other media.

The Service Committee, spear-headed by members of the inaugur-al class of the ISBA LeadershipDevelopment Academy, has estab-lished an annual Day of Service(this year on Sept. 19); is promot-ing service by state and local barassociations; and presents an awardat the ISBA Annual Meeting to rec-ognize Indiana attorneys commit-ted to serving beyond their clients.

The Sexual Orientation &Gender Identity Committee shallfocus on legal issues related to sexu-al orientation and gender identityas well as promote full and equalparticipation in the legal professionby persons of differing sexual ori-entations and gender identities.

The State LegislationCommitteemonitors the activitiesof the legislature in those areas of interest pertinent to the profes-sion of law; keeps the Board ofGovernors informed upon suchmatters; and supports by testimonyand other means the policies of theAssociation before the GeneralAssembly.

The Technology Committeemakes recommendations to theBoard of Governors as to actions to ensure the proper and effectiveuse of the Internet to further thepurpose of service to lawyers andthe public. The committee is alsoaddressing other issues of electroniccommerce as they relate to the legalprofession and the ability of lawyersto serve their clients and the public.

The Unauthorized Practice of Law Committee keeps itselfinformed with respect to all aspectsof issues pertaining to the unautho-rized practice of law (UPL) in thestate of Indiana by nonlawyers.Where appropriate or whenrequested, the committee shall provide comments or written opin-ions, formal and informal, on thesubject of UPL.

The Wellness Committee wasestablished to promote health and

COMMITTEES continued from page 13


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personal well-being among judges,lawyers, their staffs and law stu-dents by encouraging positivelifestyle changes through increasedphysical activity, stress reduction,healthier eating, tobacco cessationand the like, and to support themas advocates to make their commu-nities healthier places to live andwork.

The Women in the LawCommittee promotes the advance-ment of women in the legal profes-sion, law school and society at largeby providing educational programsto build successful practices, net-working opportunities, a forum for discussion and understandingof legal issues affecting women, and opportunities for communityservice.

The Written PublicationsCommittee is responsible forreviewing and approving articles onprofessional subjects in Res Gestae,and solicits professional articles ofcurrent interest to the membership.

Special CommitteesThe Continuing Legal

Education Committee facilitatesthe production and delivery ofhigh-quality, affordable CLE pro-grams for the benefit of the legalprofession, in coordination withthe sections, committees and staffof the ISBA, and other entities serv-ing the needs of Indiana lawyers.

The Courthouse ArtCommittee is encouraging thedonation of original artwork ofIndiana’s 92 county courthouses,historic or current, to hang in theoffices of the ISBA.

The IndianaDocs Committeeis responsible for creating, review-ing, approving and keeping currentall practice-related forms for inclu-sion in the IndianaDocs library.This document assembly softwareallows members to save time, effortand money in the production ofrepetitive documents and forms. �

Report of the Nominating Committee

of theIndiana State Bar Association

The Nominating Committee of the Indiana State Bar Association met inIndianapolis on May 8 and determined to submit the following candidates

for election to the respective Association offices at the Annual Meeting of theAssociation Assembly to be held in French Lick, Ind., on Oct. 9.

For Vice President ............................................ Andrielle M. Metzel, Indianapolis

For the Board of Governors (term Oct. 9, 2015 through October 2017)

District 1 ............................................................... Michael J. Jasaitis, Crown Point

District 4 .................................................................... David E. Bailey, Fort Wayne

District 5 ............................................................................ Daniel L. Askren, Attica

District 10 ............................................................ Hon. Angela G. Sims, Anderson

District 11 ............................................................ Deborah J. Caruso, Indianapolis

District 11 ................................................ Hon. Tanya Walton Pratt, Indianapolis

At Large .................................................................. Shontrai D. Irving, Hammond

Respectfully submitted by Jim Dimos, Indianapolis, chair; Michael E.Tolbert, Gary; Jaime M. Oss, Michigan City; Cristal C. Brisco, South Bend;Hon. Thomas J. Felts, Fort Wayne; Marianne M. Owen, Lafayette; Seamus P. Boyce, Noblesville; Jeffry A. Lind, Terre Haute; James P. Casey, Evansville; J. Todd Spurgeon, New Albany; and Judi L. Calhoun, Muncie. �

Report of the Nominating Committeeof the House of Delegates

of the Indiana State Bar Association

Pursuant to the provisions of Section B(2) of Bylaw V of the Indiana StateBar Association, notice is hereby given to all members of the Association

and to all members of the House of Delegates that the Nominating Committeeof the House of Delegates of the Indiana State Bar Association nominates thefollowing candidate:

Michael E. Tolbert, Gary

Such candidate, if properly elected as chair-elect at the 2015 Annual House of Delegates meeting, will serve one year as a member of the Board ofGovernors in the capacity of chair-elect of the House, and will then assume theoffice of chair at the close of the 2016 Annual Meeting, serving until the close of the 2017 Annual Meeting.

Respectfully submitted by Mitchell R. Heppenheimer, South Bend, chair; Jon R. Rogers, Granger; Jacquelyn Pillar King, Munster; Jaime M. Oss, Michigan City; Shontrai D. Irving, Hammond; and Gail G. Peshel,Valparaiso. �


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Nominations due Aug. 10

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

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

CIVILITY AWARDSSponsored by the Litigation Section

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

Send your nominations to:

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

For more information, contactMelanie at [email protected].

GALE M. PHELPS AWARDSponsored by the Family & JuvenileLaw Section

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

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

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

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

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

• High moral character and ethical standards


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

For more information, contactMaryann at [email protected].

RABB EMISON AWARDSSponsored by the DiversityCommittee

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


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

For more information, contactWhitney at [email protected].

OUTSTANDING JUDGE AWARDSponsored by the Young Lawyers Section

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

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

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

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

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

Send your nomination to:

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

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

For more information, contactChristina at [email protected].

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

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

ATT

ENTION

Achievement award nominations sought


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

Those making nominations areencouraged to submit letters ofsupport.




TRAILBLAZER/ABRIENDOCAMINOS AWARDSponsored by the Latino AffairsCommittee

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




LIBERTY BELL AWARDSponsored by the Young Lawyers Section

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

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

• promoting a better under-standing of our Constitution and the Bill of Rights;

• encouraging greater respect for the law and the courts;

• stimulating a deeper sense of responsibility so that citizens

recognize their duties as well astheir rights;

• contributing to the effectivefunctioning of our institutions of government;

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


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


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


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

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




COMMUNITY SERVICEAWARDSponsored by the Service Committee

The Community ServiceAward was established by the ISBAService Committee, a project of the first ISBA Leadership Develop-ment Academy class. The ServiceCommittee was formed by the classwith an interest in advancing thenonlegal service work of lawyers in their communities and state.Factors considered in the selectionof the recipient reflect the core values the Service Committee wishes to promote and include:

1. exceptional nonlegal servicework in their respective community– this does not include pro bonowork, which is recognized sepa-rately;

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

3. promoting communityinvolvement; and

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


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

For more information, contactCatheryne at [email protected].

AFFILIATE MEMBER AWARDSponsored by the AffiliateMembership Committee

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

legal administration, law librarian-ship or court administration.

The selection committee mayalso consider:

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

• commitment to the IndianaState Bar Association; and

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


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

For more information, contactSusan at [email protected].

DAVID HAMACHER PUBLIC SERVICE AWARDSponsored by the Appellate Practice Section

The ISBA Appellate PracticeSection is soliciting nominationsfor the David Hamacher PublicService Award. Any lawyer or non-lawyer may be nominated. The cri-teria for this award are as follows:high moral character and ethicalstandards; service to the communi-ty; peacemaking qualities; personnot necessarily a lawyer; award not gender specific.

Send a written statementregarding why the nominee shouldbe selected to:



AWARDS continued from page 17


2015 9

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JOHN ROBERT PANICOMediator • Arbitrator • Fact Finder

Panico Law LLC Indianapolis, Ind.317-759-7464 [email protected]

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OUTSTANDING YOUNGLAWYER AWARDSponsored by the Young Lawyers Section

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

To nominate a young lawyer,complete the nomination form andinclude a letter explaining why youbelieve your nominee should beconsidered for the award. An attor-ney qualifies as a young lawyer if he or she is under 36 years of age or has less than six years of legalexperience. If you prefer that yournomination remain anonymous,please advise, and we will honoryour request.


Christina FisherIndiana State Bar Association

One Indiana Square, Suite 530Indianapolis, IN 46204


HENRY HURST JUDICIALASSISTANCE AWARDSponsored by the Federal JudiciaryCommittee

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

to promote justice and efficiency in the courts.

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


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

For more information, contactPaje at [email protected].

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


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THE ULTIMATE MOBILE EXPERIENCE.

To download, search for "Indiana State Bar" at the iTunes App Store or Google Play. Once downloaded, you can also access the Solo & Small Firm Conference and Annual Meeting event apps by selecting the “Conferences” icon.

ISBA APP FEATURES:

} Register for upcoming CLE & social events} Read Res Gestae & Addendum} Connect with ISBA sta�ers} Access the Board of Governors directory} Contact Section & Committee chairs} Search our membership directory} Use Casemaker, our free online research tool} Join the Association!

100%10:15 AM 100%10:15 AM

Deadline: Aug. 21

In promotion of the ongoingdiscussion about ethics in

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

Entrant basics

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

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

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

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

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

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

RULES

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

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

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

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

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

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

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

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

GUIDELINES

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

ATTEN

TION

Annual ethicsessay contest



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

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

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

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

PROMPTS1. The Indiana Rules of

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

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

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

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

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

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

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

ETHICS ESSAY continued from page 21


RG 06.15_RG 09.05 6/17/15 9:54 AM

The Court of Appeals thoughtlittle of C.C’s contentions, notingthat her counsel fully presented her“defense,” and despite her counsel’svigorous cross-examination of theDepartment’s witnesses and presen-tation of K.W.’s grandmother’s testimony, the evidence that C.C.’sparental rights should be terminat-ed was “overwhelming.”

But the Indiana SupremeCourt reversed the termination,holding that the trial court shouldhave granted her request for a continuance, therefore restoringMother’s parental rights. Not longago, as might have been expectedby the Court of Appeals’ characteri-zation of the Department’s case as“overwhelming,” this result wouldhave been surprising. But by thetime the opinion was issued in July of 2014, the reversal was justthe latest in a string of IndianaSupreme Court reversals of juvenilecourt actions adverse to parents.

The Court had historically paidlittle attention to such child servicescases – those involving a juvenilecourt’s imposing its own and theDepartment’s oversight and, if nec-essary, permanently severing theparent-child relationship. Likewise,the Indiana Court of Appeals regu-larly reviews such terminations, but rarely reverses them.5

But following a seven-yearperiod in which it decided an aver-age of just over one such case annu-ally, the Supreme Court decided sixin the first several months of 2014alone, all but one of which reversedCHINS adjudications or termina-tions of parental rights. Despite thattrend, it is clear that the shift is notresult-oriented. Rather, the Court’ssophisticated turn has provided a welcome measure of adversarial-ism to the still largely inquisitorialjuvenile court process.

The adversarial-inquisitorialcontinuum

Courts and commentatorsdefine “adversarial” and “inquisito-rial” systems in myriad ways; thereis largely no “agreement about whatmakes a procedural system inquisi-torial.”6 Indeed, sophisticatedobservers do not speak of a particu-lar system as “adversarial” or“inquisitorial” per se, but insteadplace different systems on an adver-sarial-inquisitorial continuumbased on the presence or absence of a number of different factors.7

First among such factors arethe respective roles of the judge, theparties and their counsel. Generally,the more “involved” the judicialofficer is in fact-and-law develop-ment, the more inquisitorial thesystem. The literature is repletewith definitional examples: moreadversarial judges are “neutral” and“detached,” “acting solely as passiveumpire, and relying on the partiesto investigate the facts and thelaw.”8 Such impartiality is laudable,but more inquisitorial proponentsderide such “objectivity” even inthe face of a manifest injustice,claiming that it is the “chief func-tion of a court of law to find out the truth and not merely to decidewhich party has adduced better evidence.”9 Likewise, a moreinquisitorial judge “conduct[s] the factual and legalinvestigation himself,”10

but, to adversarial eyes,becomes a quixotic figure, one in whichcourts become “rovingengines of justice careen-ing about the land in search of wrongs to right.”11 Indeed, more inquisitorial judgesassume both investigative

The Indiana Supreme Court’s adversarial guidance to inquisitorial juvenile courts

By Graham C. Polando

Graham C. PolandoMagistrateSt. Joseph Probate CourtSouth Bend, [email protected]


Shortly after C.C. gave birth toa cocaine-positive child, theDepartment of Child Services

removed the baby from her care.1

Before K.W.’s three-month birth-day, a court had both provided andordered her Mother to complete in-home drug treatment services so it could return K.W. to her care.

Some five different therapistsattempted to provide Mother withsuch treatment, but all discontin-ued it because of her “poor atten-dance” – though the treatmentoccurred in her home. Mother’sabsence was partially explained byat least two different stints in jailand three positive drug tests.2

Eventually, DCS filed aPetition to Terminate Mother’sParental Rights to K.W. Motherinitially requested a continuance of those proceedings “so she couldparticipate in services after beingreleased from incarceration,” butdid not attend a subsequent hearing“because she was on house arrest.”3

Despite C.C.’s initial indication thatshe was “gonna sign rights away,”she later decided to “fight” thePetition.4 But when the hearing onthat Petition began, she was againabsent and incarcerated. Her coun-sel moved to again continue theproceedings, claiming that C.C.expected to be released to homedetention or work release inapproximately nine days.

The trial court denied the continuance and, after hearing evi-dence, terminated Mother’s rightsto K.W. Mother appealed, claiming,among other things, that the trialcourt erred in denying her motionto continue. She further claimedthat she wanted to appear at thetermination proceeding to explainthat she deliberately did not complywith the orders because she intend-ed to consent to K.W.’s adoption. (continued on page 24)

RG 06.15_RG 09.05 6/17/15 9:54 AM

and adjudicative responsibilities, as more inquisitorial systems place“trust … in professional factfinders

rather than lay jurors.”12

Legal systems abhor a vacuum,and if judges do not develop factsand law, that duty falls to partiesand their counsel: “Our adversarysystem is designed around the

premise that the parties … areresponsible for advancing the factsand arguments entitling them to

relief.”13 Of course, adversarial parties retain attorneys, who in theadversarial system are noble “aid[s]to the understanding and protec-

tion of constitutional rights,”14

who “have considered, explored,

and [if necessary] abandoned” all potential aspects of the case.15

The mistrust of parties in favorof neutral judges partially explainswhy juvenile courts, charged witheffectuating “the best interest of thechild,” have skewed inquisitorial.“The interest of the community …is far broader than what a particularadolescent or parent thinks is bestfor them.”16 Deemphasizing theparties also has procedural implica-tions: “[D]efault rules generallytake on greater importance in anadversary system such as ours thanin … inquisitorial legal systems.”17

Evidence likewise takes differentforms, as more inquisitorial courtsrely heavily on ex parte statementsand documentary reports.18

Inquisitorial systems, in their rele-gation of parties, tend to afford lessrespect to evidentiary privileges.19

Finally, the focus on ex parte com-munications in more inquisitorialsystems echoes in their generallyclosed nature, in contrast to theclassically public adversarial contest.20

Indiana’s inquisitorial juvenile court

Juvenile courts have longexpressly rejected adversarial procedures. Early reformers fearedthat the “adversary system woulddestroy rehabilitative goals” and didnot lend itself to the “developmentand presentation of the relevant sci-entific behavioral data.”21 Indiana’searly juvenile courts shared this scientific ideal, as “judges needed a great deal of latitude to gatherinformation … without the encum-brance of strict rules of procedureand evidence.”22 Judge MargretRobb and Magistrate NancyGettinger quote Indiana’s first juvenile judge for his profoundlyinquisitorial outlook: “… if I sat ona high platform behind a high desk… my words had little effect on [a child]; but if I could get close

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enough to him to put my hand onhis head or shoulder, or my armaround him … I could get his confidence.”23 Juvenile judges still embrace the inquisitorial role: “I need to be more involvedthan I ever would in civil court. … If I’m not allowed to ask questions,if I can’t be involved, how can I do justice?”24 In Indiana’s juvenilecourts, trials are to the bench, not ajury,25 and largely occur in a closedenvironment.26 Indeed, juvenilecourts may conduct what can only be called inquisitions: closed, in camera interviews of children.27

Further, DCS, unlike prosecu-tors or civil plaintiffs, requirescourt authorization to both file anddismiss CHINS petitions, and todismiss petitions to terminate theparent-child relationship.28 Moresignificantly, in the vast majority of child services cases, Indiana prohibits courts from receiving evidence only from the parties,requiring them to dispatch theirown disinterested investigators –guardians ad litem or court-appointed special advocates(CASAs).29 These investigators areno doormats – the Indiana Court of Appeals has approved a CASA’sexercising even a “dominant,” “vigorous” role in child servicescases.30

Indeed, if a court’s receipt of ex parte, documentary reports is aninquisitorial benchmark, Indiana’sjuvenile courts are essentially conti-nental.31 Upon finding that a par-ticular child needs services, thejudge must order the Departmentto prepare a “pre-dispositionalreport” and receive additionalreports every three months.32

The reports do not end there, as theIndiana Code provides an extraor-dinary catch-all: “Any report maybe admitted into evidence to theextent that the report contains evidence of probative value even

if the evidence would otherwise beexcluded.”33

The juvenile court also receivesmore conventional hearsay. Bytheir own terms, the Indiana Rulesof Evidence “do not apply in …preliminary juvenile matters.”34

But “preliminary” juvenile mattersare far from routine because therethe court either approves the child’sinitial removal from the home ororders his or her return. After thosematters, hearsay remains largelyacceptable; most notably, the courtmay receive a child’s videotapedstatements as substantive evidence.35

The legislature has also provid-ed for fewer privilege protections in the juvenile court, statutorilyexcluding both the physician-patient and marital privileges.36

Even the celebrated privilegeagainst self-incrimination suffers:unlike its criminal counterpart, a juvenile court may draw a nega-tive inference from a parent’s invocation of Fifth Amendmentrights.37 Finally, default rules areinapplicable, as the cases are “not a mere contest of property rightsbetween two parties. The welfare ofa child is not a matter of default.”38

The Indiana Supreme Court’srecent cases

The Supreme Court gave earlysigns of its renewed focus on adver-sarial procedures. In 2012, theCourt issued In re K.D.,39 whichbegan by specifically recognizingthe inquisitorial nature of theCHINS process40 and resigned itself to the difficulty squaring that nature with a parent’s rights:“Juvenile court judges [must bal-ance] multiple factors and multiplevoices … these cases do not fitneatly defined guidelines.”41

But in striking this “challeng-ing” balance, the Court began to

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RG 06.15_RG 09.05 6/17/15 9:54 AM

emphasize that it would not invari-ably value inquisitorial “best inter-est of the child” determinationsover adversarial protections.Indeed, the Court held that eventhose parents who have completelyabandoned the child not only have a right to actively contest theCHINS adjudication, but to delaythe process until they can be locat-ed and properly served: when “chil-

dren have absent or even unknownparents … it is critical that DCSproperly serve all parties, by publi-

cation if necessary… .”42

The next year the Court issued

In re C.B.M.,43 which, in reversing a trial court’s termination ofparental rights, also necessarilyundid the children’s adoption by what all conceded were loving

foster parents. In so doing, theCourt again recognized that it wasimposing “harsh effects” on them“through no fault of their own.”44

Such “harsh effects” were accept-able, however, “out of due regardfor the limitations of judicial powerinto family life … .”45

The adversarial shift found fullexpression in 2014. In In re S.D.,46

the unanimous Court began byagain recognizing the CHINS pro-ceeding’s unique, largely inquisitor-ial nature: “Our focus … is on thebest interests of the child andwhether the child needs help … not whether the parent is somehow‘guilty’ … .”47 In emphasizing thejuvenile court’s practical, amoralinquiry, one might expect theCourt to support that court’sinquisitorialism: if it seeks onlyfacts, not condemnation, it shouldsacrifice fairness for accuracy. Butthe Court immediately recognizedthat parents might legitimatelyquestion a juvenile court’s pragmatic amorality when its “help comes not by invitation, but compulsion … .”48

This statement seems to callinto question numerous prior holdings that two scholars havesuccinctly characterized: that “[a] parent’s rights are subordinateto the best interests of the child.”49

If a parent has difficultymeeting a child’s needs, her best interestswould seem, by definition, to meritintervention to remedy that diffi-culty. But the S.D. Court recog-nized that the “compulsion” inher-ent in a CHINS case imposes veryreal costs. Finding that Mother had“voluntarily addressed all but one”of the issues causing her child to be“legitimately in need of services,”and that “the remaining evidencefails to show that Mother was likelyto need the court’s coercive inter-vention to complete that final




RG 06.15_RG 09.05 6/17/15 9:54 AM

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item,” the Court reversed theCHINS finding.50

A few weeks later, the Courtissued In re E.M.,51 its only 2014decision affirming a trial court’saction against a parent and, notcoincidentally, its most inquisitori-al. E.M. was a simple “sufficiency ofthe evidence” challenge to a court’stermination of parental rights.Notably, the Court emphasized thatthe decision was the trial court’s,not its own: while “Father’s eventu-al efforts to establish a relationshipwith his children were commend-able, and DCS’s family preservationefforts with him could have beenstronger,” “we defer to the trialcourt and affirm its judgment.”52

Why this case is an island ofinquisitorialism in a sea of moreadversarial decisions is quite revealing. One of E.M.’s issues waswhether Father’s domestic abuseharmed his children. In finding

that it did, the Court expresslyrelied on social science publicationsthat were not, presumably, intro-duced to the trial court; recall thatjuvenile courts became inquisitori-al, at least in part, specifically to embrace such evidence.

But a purely adversarial juve-nile court cannot. Indeed, whilethere are universal calls for juvenilecourt judges to use “evidence-based practices,”53 increase cultural“competence” or “awareness”54 andbecome more aware of psychologi-cal data,55 it is nearly impossible topresent, much less test, those stud-ies in an adversarial setting,56 andwhen parties do not present evi-dence, the most culturally compe-tent, psychologically informedadversarial judge becomes as igno-rant as her evidence. E.M. seems to suggest, then, that while theCourt is warning juvenile courts to respect adversarial procedures,

it will uphold inquisitorialism whenit serves the juvenile court’s uniquerole.

Less than a week later, March13, 2014, the Court again specifical-ly endorsed adversarial principles.In In re G.P.,57 a mother firstwaived, then requested counsel’sassistance, but “for reasonsunknown,” no counsel appeared on her behalf.58 Mother largelyfailed to comply with the trialcourt’s dispositional decree, and the Department of Child Servicesfiled a Petition to Terminate herparental rights.

Mother failed to appear somethree separate times for hearing on the termination petition, butrequested (in writing) that the juve-nile court appoint counsel for her, a request the Court granted; thistime, counsel actually appeared.Following the three-day hearingtestimony, the juvenile court terminated Mother’s rights to G.P.Mother, again by counsel, appealedthat termination, citing her lack of appointed counsel in the CHINScase.

Mother faced long odds. First,she had counsel for the entire pro-ceeding from which she appealed –the termination case. A long line of Indiana cases had held that,“although the CHINS proceedingmay well lead to … termination of the parent-child relationship,”the latter “is a separate proceeding…”59 such that any deficiencies in the former could not “infect” the latter.60

Second, Mother argued thatcounsel was mandatory in the face of a statute saying only that a “court may appoint counsel torepresent any parent in any otherproceeding [than a termination].”61

A long line of cases suggested that“may” meant that counties couldgratuitously provide counsel toCHINS parents, but were notrequired to do so.



RG 06.15_RG 09.05 6/17/15 9:54 AM

Most importantly, Mother was pursuing an adversarial remedyin an inquisitorial court: as above,“[a] parent’s rights are subordinateto the best interests of the child.”62

A parent’s procedural rights in a termination proceeding would, one would think, likewise be subor-dinated to a court’s substantivedetermination of the child’s bestinterests.

Indeed, the Court of Appealsunanimously affirmed on just thesegrounds, writing that Mother hadto show a substantive problem with the termination: “Motherargues that having counsel wouldhave allowed her to inform thecourt of things … . It is not clearwhy counsel was needed to informthe court, when Mother could haveinformed the court herself … .”63

The inquisitorial juvenile court, inother words, is capable of develop-ing law and facts, and if the courtdoes not require counsel, neitherdoes a parent.

Again, however, the SupremeCourt unanimously reversed thetermination.

As to the first argument, theSupreme Court flatly rejected theidea that CHINS and TPR proceed-ings are anything but separate: they are “deeply and obviouslyintertwined.”64 Moving to whetherMother had a statutory right tocounsel, the Court of Appeals noteda conflict between the statute citedabove (that providing only that acourt “may” provide counsel) andanother, one titled “Duty to informparent, custodian, or guardian of legal rights.” That latter statute stated that the Department was to advise parents of various rightsthey enjoyed in a CHINS proceed-ing, including “the right to … be represented by an attorney.”65

The Court of Appealsexpressed confusion about “howsections 31-32-4-3 and 31-34-4-6are to be read in conjunction with

each other … .”66 Likewise,Mother’s counsel, in oral argumentbefore the Supreme Court, statedher “hope [that] this Court willclarify” the interaction between the statutes.

The Court, however, deniedthe need for such clarification: “Wethink the answer is fairly straight-

forward. … [T]o the extent anycase law holds that a trial court hasdiscretion to appoint counsel for an indigent parent in a CHINS pro-ceeding, those cases are not correcton that point.”67 If the Court isinclined to impose more adversarialprocedures on the juvenile court,


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a preference for counsel makes perfect sense. Indeed, the Courtsquarely rejected the Court ofAppeals’ inquisitorial contentionthat the trial court could have examined Mother itself: “She is not, at that point, a pro se litigant … .”68

Again, the Court of Appealsfound nothing substantively wrongwith the court’s determinationbecause Indiana contemplates aninquisitorial role for juvenile courtjudges, Mother’s attorney’s absenceor presence would have made no difference to the outcome. But the Supreme Court questionedthe juvenile court’s capacity forsuch fact-finding, reasoning thatcounsel would have provided better facts than it alone could discover: “[A]n attorney … could have informed the CHINScourt as to the reasons for her

absence and her efforts to engage in services … .”69

The Supreme Court’s impliedpraise of adversarial fact-findingprocedures is generally acknowl-edged. Indeed, fact-finding is theadversarial system’s pride, with itsclash of competing viewpoints pro-ducing the best possible fact devel-opment,70 a proposition even thoseskeptical of the adversary systemcredit.71 In arguing for a moreadversarial juvenile court, Prof.Handler maintains that even thebest inquisitorial judge cannot“develop affirmative facts on theother side.”72 Even the most consci-entious judges view facts throughpreconceived notions and use con-venient heuristics. This would betrue even if adversaries presentedjudges with requisite information,but, of course, “[a] case worker,

even under the best of conditions,cannot explore all facets of the lifeof the client.”73 But even settingaside the inquisitorial fact-findingprocedure’s deficiencies, the Courtupheld the attorney’s contributionto the adversarial procedure aloneas sufficient grounds for reversal.74

We are used to this conclusionin other areas (most notably thecriminal), but it is striking here.Recall that juvenile courts skewinquisitorial because of the sup-posed conflict between the parties’– especially the parents’ – interestsand those of the non-party child.But the G.P. Court denied such a disconnect and, with it, the basisfor the inquisitorial court: “Byfocusing on due process of the parents at the CHINS adjudicationstage, all parties in the CHINS pro-ceeding ultimately benefit, includ-ing the child.”75 Contrary to the



RG 06.15_RG 09.05 6/17/15 9:54 AM

inquisitorial ideal, a parent’s rightsare a child’s rights, and a child benefits when a court respects even the rights of unfit parents.

In a pair of decisions twoweeks later, the Court againreversed a trial court’s terminationof parental rights on proceduralgrounds. In In re S.B.76 and In reI.P.,77 the Court addressed whetherone magistrate could base his findings and recommendations on evidence heard by another.

There, one magistrate appar-ently presided over a number oftermination hearings, but did notissue findings and recommenda-tions thereon before resigning herposition. A new magistrate then“reviewed the hearing record andreported recommended findingsand conclusions.” In at least thetwo cases the Court reviewed, the new magistrate recommended terminating the parent-child relationship, a recommendationapproved by the presiding judge.The parent in each case appealed,claiming due process required thesame judicial officer who heard the evidence to issue the decision.

The Supreme Court agreed and reversed both terminations.Significantly, the new magistrate’sprocess must have been “inquisitor-ial,” at least according to the abovecriteria. The entire process, at leastfrom his perspective, was an inves-tigatory review of “hearsay” (to him) statements. And it wasprecisely this inquisitorial review that the Court found problematic:“[T]he magistrate who reportedrecommended findings and conclu-sions to the judge did not hear theevidence or observe the witnessesfirsthand.”78 The Court, in otherwords, equated “firsthand” obser-vation with due process, and if“firsthand” observation is the hall-mark of adversarialism,79 it followsthat due process means adversarialprocedures.

The Court next issued its most recent child services opinion,that with which this article began.There, the Court all but endorsedthe Court of Appeals’ characteriza-tion of the evidence against Motheras “overwhelming,” conceding “[i]t is true … that [Mother] was in and out of jail, and in and out of services, throughout the” cases.But adversarial procedure mattered

too: given Mother’s absence, hercounsel was prevented from “telling

[Mother’s] side of the story. …”80

Conclusion

This recent juvenile guidance is largely a positive. Initially, our courts have rightly held thatdue process requires “a sufficient


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separation of the prosecutorial andadvocacy functions and the adju-dicative functions … .”81 Further,ethically conscious judicial officersmust hew adversarial: the Code ofJudicial Conduct prohibits manyinquisitorial activities,82 notablyproviding that “[a] judge shall not investigate facts … and shall consider only the evidencepresented … .”83

Finally, and perhaps mostimportantly, the adversarial shiftrecognizes that accommodatingparents’ rights and children’s interests is not a zero-sum game.84

Indiana’s appellate courts haveoccasionally endorsed such a view,stating, for example, that a parent’srights and a child’s best interests are“sometimes opposing concerns.”85

That is understandable: if the juve-nile court is substantively correct,the child must suffer harm if itsadjudication were reversed solely

because it denied a parent’s proce-dural rights.

But there are two replies. First,procedural rights rest on the ideathat what seems “obvious” at firstblush might not be so when partiesare forced to assume their burdenof proof. As detailed above, amongthe adversarial system’s greateststrengths is its accurate fact production.

But perhaps even more impor-tantly, and as the G.P. Court sug-gested, children benefit when ourcourts honor all parents’ rights. It seems likely that a child takenfrom his or her parents would takesolace in knowing that the parentwas given every possible chance to retain his or her rights. Indeed,some scholars suggest that rightsare really those to the family rela-tionship itself, rather than separateones held by parents and chil-dren.86 This is, perhaps, the Court’s

intent in emphasizing that CHINSadjudications should not be appliedlightly, not to those parents whomerely have “difficulty” meetingchildren’s needs. A parent-childrelationship has biological and psychological value to both of itscomponents. Juvenile courts shouldnot only take heed of, but also welcome, its adversarial antidotesto the inquisitorial process’s short-comings. �1. These facts are taken from the Indiana Courtof Appeals’ unpublished memorandum deci-sion in In re K.W., No. 49A02-1305-JT-468, 1 N.E.3d 221 (Ind. Ct. App. Dec. 31, 2013),accessible at http://www.in.gov/judiciary/opinions/pdf/12311303msm.pdf. Pursuant toInd. App. R. 58, the Indiana Supreme Court’sgrant of transfer, see In re K.W., 980 N.E.2d841 (Ind. 2013) (table), vacated the Court of Appeals’ opinion; the Supreme Court’sopinion is discussed infra.

2. Id. at 2.

3. Id. at 7.

4. Id. at 8.

5. See Karen A. Wyle, “Fundamental VersusDeferential: Appellate Review of Terminationsof Parental Rights,” 86 Ind. L. J. 29 (2011).

6. David Alan Sklansky, “Anti-Inquisitorialism,”122 Harv. L. Rev. 1634, 1639 (2008).

7. Prof. Sklansky mentions all of the characteris-tics as proof of the false dichotomy between“inquisitorial” and “adversarial” systems, but they are useful benchmarks for placementon the continuum.

8. Id.

9. Wolfgang Zeidler, “Evaluation of theAdversary System: As Comparison, SomeRemarks on the Investigatory System ofProcedure,” 55 A. L. J. 390, 395 (1981).

10. McNeil v. Wisconsin, 501 U.S. 171, 181, n. 2(1991).

11. Haitian Refugee Ctr. v. Civiletti, 503 F.Supp.442, 461 (S.D.Fla. 1980).

12. Sklansky, supra n. 6 at 1639, citing Blakely v. Washington, 542 U.S. 296, 313 (2004).

13. Castro v. United States, 540 U.S. 375, 386(Scalia, J., concurring in part and concurringin the judgment). See also John Langbein, The Origins of the Adversary Criminal Trial311 (2003) (“Counsel’s growing domination of the fact-adducing phase of the criminal trial came at the expense of the trial judge.”).

14. Id., at 468 (Stevens, J., dissenting).

15. Marvin Frankel, “The Search for Truth: An Umpireal View,” 123 U. Pa. L. Rev. 1031,1042 (1975).

16. Joel Handler, “The Juvenile Court and theAdversary System: Problems of Function & Form,” 1965 Wis. L. Rev. 7, 28. See alsoPerkinson v. Perkinson, 989 N.E.2d 758, 760 (Ind. 2013) (“an agreement to forego



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parenting time in exchange for relief fromchild support is declared void against publicpolicy.”).

17. Sanchez-Lamas v. Oregon, 548 U.S. 331, 357(2006).

18. Sklansky, 122 Harv. L. Rev. at 1636 (“anti-inquisitorialism figured heavily” in Crawford v. Washington, 541 U.S. 36 (2004).

19. See, e.g., Gregory W. O’Reilly, “England Limitsthe Right to Silence and Moves Towards anInquisitorial System of Justice,” 85 J. Crim.Law & Criminology 402, 407 (1994) (“Thedevelopment of the right to silence in England… was intimately tied to the great strugglebetween rival systems of criminal procedure – the accusatorial common law courts and the inquisitorial ecclesiastical courts.”)

20. See Crawford, 541 U.S. 36, 48 (2004) (identify-ing “private judicial examination” as a featureof inquisitorial English admiralty courts) (citation omitted).

21. Handler, supra n. 16 at 26.

22. Margret Robb and Nancy Gettinger, “Juvenile Law: The Quest to Redeem YouthfulOffenders,” in David J. Bodenhamer andRandall T. Shepard, The History of IndianaLaw 146, 153 (2006).

23. Id. at 153, citing Mennel, Thorns and Thistles133, citing the U.S. Congress, Children’sCourts in the United States, 58th Cong., 2d sess., 1904, H. Doc. 701. For more on thatfirst juvenile court judge, Hon. George Stubbs,as well as the history of Indiana juvenile courtsgenerally, see Frank Sullivan Jr., “Indiana as aForerunner in the Juvenile Court Movement,”30 Ind. L. Rev. 279 (1997).

24. Michele Benedetto Neitz, “A Unique Bench, A Common Code: Evaluating Judicial Ethics in Juvenile Court,” 24 Geo. J. Of Legal Ethics97, 110, 125 (citing interview with the Hon.Deborah Hitchens, Supervising Judge, S.F.Unified Family Court, S.F., Cal,. [Aug. 6,2009]).

25. Ind. Code §31-32-6-7, accord McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

26. Ind. Code §31-32-6-2 (“The juvenile courtshall determine whether the public should be excluded from a proceeding,” subject to certain exceptions).

27. Ind. Code §31-17-2-9(a).

28. Ind. Code §31-34-9-1(a) (filing CHINS peti-tion); Ind. Code §31-34-9-8(c) (dismissingCHINS petition); Ind. Code §31-35-2-4.5(d)(dismissing petitions to terminate parentalrights).

29. Ind. Code §31-34-10-3. Many of these features are federally mandated conditions for a state’s receipt of child abuse and adoptionassistance funding. See, e.g., 42 U.S. Code§5106a(b)(2)(B)(xiii) (requiring receivingstates to enact “provisions and proceduresrequiring that in every case … a guardian adlitem … or a court appointed special advocate… be appointed to represent the child in suchproceedings … to obtain first-hand, a clearunderstanding of the situation and needs ofthe child; and to make recommendations tothe court concerning the best interests of thechild.”).

30. See Kern v. Wolf, 622 N.E.2d 201 (Ind. Ct. App.1993).

31. See, e.g., A. W. Brian Simpson, “GeneralEditor’s Preface,” in Langbein, Origins, supra n. 13, (“In continental Europe … what is known, perhaps not very happily, as the inquisitorial system, is in force … .”).But see Sklansky, supra n. 6 (arguing thatequating continental courts with inquisitorialones is an outmoded stereotype).

32. Ind. Code §§ 31-34-11-2 and 31-34-21-1.

33. Ind. Code §31-34-22-3.

34. Ind. Evid. R. 101(c).

35. See Ind. Code §31-34-13.

36. Ind. Code §31-34-12-6.

37. In re A.G., 6 N.E.3d 952 (Ind. Ct. App. 2014).

38. In re Marriage of Henderson, 453 N.E.2d 310,316 (quotation omitted). Young v. Elkhart Cty.Office of Family & Children, 704 N.E.2d 1065,1069 (Ind. Ct. App. 1999) (defaults are “espe-cially undesirable in the context of divorce or custody proceedings because of the graveimportance of the matters decided therein.” Id. at 1068.)

39. 962 N.E.2d 1249 (Ind. 2012).

40. See id. at 1255 (“Juvenile law is constructedupon the foundation of the State’s parenspatriae power, rather than the adversarialnature of corpus juris” [citation omitted]).

41. Id.

42. Id. at 1257.

43. 992 N.E.2d 687 (Ind. 2013).

44. Id. at 695.

45. Id. at 696.

46. 2 N.E.3d 1283 (Ind. 2014).

47. Id. at 1285 (emphasis in original).

48. Id.

49. J. Eric Smithburn and Ann Carol Nash,“Family Law – Children in Need of Services,”Indiana Practice Series 15A §27:31, 559 (2012-2013 ed.) (citing cases).

50. In re S.D. at 1290-1291.

51. 4 N.E.3d 636 (Ind. 2014).

52. Id. at 640 (emphasis supplied).

53. See, e.g., Randy Borum, “Managing At-RiskJuvenile Offenders in the Community: PuttingEvidence-Based Principles Into Practice,” 19 J. of Cont. Crim. Justice 114 (2003).

54. See, e.g., Alan J. Dettlaff, “Immigrant Childrenand Families and the Public Child WelfareSystem: Considerations for Legal Systems,” 63 Juv. & Fam. Ct. J. 19 (2012).

55. See, e.g., Kristine Buffington, CarlyDierkhising, & Shawn Marsh, Ten Things EveryJuvenile Court Judge Should Know AboutTrauma and Delinquency (2010) (accessible at http://www.ncjfcj.org/resource-library/publications/ten-things-every-juvenile-court-judge-should-know-about-trauma-and) (“Tobe most effective in achieving its mission, the



RG 06.15_RG 09.05 6/17/15 9:54 AM

juvenile court must both understand the roleof traumatic exposure in the lives of childrenand engage resources and interventions that address child traumatic stress.”).

56. See Roper v. Simmons, 543 U.S. 551, 617 (2005)(Scalia, J., dissenting) (critically noting that“… the Court looks to scientific and sociologi-cal studies, picking and choosing those thatsupport its position. It never explains whythose particular studies are methodologicallysound; none was ever entered into evidence or tested in an adversarial proceeding.”)(emphasis supplied).

57. 4 N.E.3d 1158 (Ind. 2014).

58. Id. at 1160.

59. State ex rel. Gosnell v. Cass Circuit Court, 577N.E.2d 957, 958 (Ind. 1991). Accord Ind. Code§31-35-2-2 (providing that proceedings to terminate the parent-child relationship “aredistinct from proceedings under IC 31-34,”i.e., CHINS).

60. Stone v. Daviess Cty. Div. Child Serv., 656N.E.2d 824, 830 (Ind. Ct. App. 1995) (internalcitations omitted). The “infect” metaphorcomes from In re G.P. at 1165.

61. Ind. Code §31-32-4-3(b) (emphasis added).

62. Smithburn and Nash, supra n. 49.

63. In re G.P., 985 N.E.2d 786, 790-91 (Ind. Ct.App. 2013), vacated, trans. granted by In reG.P., 993 N.E.2d 182 (Ind. 2013).

64. 4 N.E.3d at 1165. See also In re J.S., 906 N.E.2d226 (Ind. Ct. App. 2009) (citation omitted) (a court considering a termination petition“may consider the parent’s response to the services offered” by DCS).

65. Ind. Code §31-34-4-6(a)(2)(A)

66. In re G.P., 985 N.E.2d at 789 n. 2.

67. 4 N.E.3d at 1163 (internal footnote omitted).

68. Id. at 1164-65 (emphasis in original).

69. Id. at 1167-68 (internal footnote and citationsomitted).

70. See Sklansky, supra note 6 at 1686 (“… differ-ent kinds of advantages have been claimed for these [adversarial] procedural features,”including “… improved accuracy in factfind-ing … .”)

71. See, e.g., Richard A. Posner, Overcoming Law503 (1995) (“The high costs of informationmay explain the emphasis in law and politicson adversarial procedure. We need not buyinto the lawyers’ mystical faith in the produc-tion of truth by contests of liars … to acceptthat the prospect of rebuttal is a deterrent todishonest rhetoric because it reduces the likeli-hood that the audience will be deceived.”)

72. Supra n. 16 at 29.

73. Supra n. 16 at 30, 41.

74. 4 N.E.3d at 1167. (“Indiana courts haveapplied a bright-line rule as to the right tocounsel – reversing convictions or other judg-ments when that right is denied. … We thinkthis bright-line rule is the right approach totake here, as well.”)

75. Id. at 1168, citing In re K.D., 962 N.E.2d at 1259.

76. 5 N.E.3d 1152 (Ind. 2014).

77. 5 N.E.3d 750 (Ind. 2014).

78. Id. at 752.

79. Crawford, supra n. 18.

80. In re K.W.,12 N.E.3d 241, 247 (Ind. 2014).

81. Rynerson v. City of Franklin, 669 N.E.2d 964,967 (Ind. 1996).

82. See, e.g., Neitz, supra n. 24 at 97 (“Despite theirdistinct role in an atypical court, juvenile courtjudges are not subject to unique ethical stan-dards … the potential for ethical violationsand injustice is significant.”).

83. Ind. Code of Jud. Cond. Rule 2.9(C).

84. But see Janet Weinstein, “And Never the TwainShall Meet: The Best Interests of Children andthe Adversary System,” 52 U. Miami L. Rev. 79,88 (“The adversary system tends to camouflageissues of concern to the child by directing the discussion at the rights of the parents.”),citing Frank P. Cervone & Linda M. Mauro,“Ethics, Cultures, and Professions in theRepresentation of Children,” 64 Fordham L. Rev. 1975 (1996).

85. Roark v. Roark, 551 N.E.2d 865, 869 (Ind. Ct.App. 1990).

86. See, e.g., John Thomas Halloran, “FamiliesFirst: Reframing Parental Rights as FamilialRights in Termination of Parental RightsProceedings,”18 U.C. Davis J. of Juv. L. &Policy 51, 80 (2013) (illustrating “how deeplyingrained and intertwined … the interests ofminors and their parents are – even thoughthose interests frequently are distinctly articu-lated. Even in termination proceedings – occa-sions where parental interests and children’sinterests are at their most adversarial – therights of parents and children are difficult to disambiguate.”) (citations omitted).

Graham C. Polando, South Bend, is a magistrate, St. Joseph Probate Court,and a lecturer in sociology & social workat Manchester University. He extends hisdeep thanks to Hon. Nancy L. Gettinger,Hon. J. Eric Smithburn and Ann CarolNash for helpful comments on draft versions of this article. Opinionsexpressed and errors committed are, of course, the author’s alone and do not express a position in any particularcase or set of cases, pending or future.



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RG 06.15_RG 09.05 6/17/15 9:54 AM

The Indiana Supreme Courtrecently issued an opinionon transfer dealing with the

rich and oft-recurring topic of howlawyers divide fees after they partways. Cohen & Malad, LLP v. Daly,___ N.E.3d ___, 2015 WL 1581941(Ind. April 8, 2015).

Workin’ hard for the money

Daly was an associate withCohen & Malad. While there, he worked on contingent fee cases.By all accounts, he worked hardand obtained good results – not justfor the clients, but also for the firmin fee recoveries. Daly’s deal withCohen & Malad was that he wouldreceive a $120,000 salary and discretionary annual bonuses. The firm did well by Daly. In 2009,the first full year Daly was with thefirm, the cases he was responsiblefor generated more than $4 millionin fees. The firm recognized theeffort by granting him a bonus of$600,000 for 2009. His bonus wasless in 2010 – $175,000. Harkeningback to an informal discussion hehad had with a Cohen & Maladpartner months before he joinedthe firm, Daly thought his produc-tivity should be recognized throughtotal compensation in the amountof half of the fees generated by thecases for which he was responsible.

In 2011, Daly left Cohen &Malad and joined another law firm.When Daly left, 24 Cohen & Maladclients, given the choice to stay orleave, chose to continue with Dalyas their lawyer at his new firm.There was no contractual under-standing between Cohen & Maladand Daly about how fees would behandled for the cases that movedwith Daly to his new firm. Most ofthe Cohen & Malad fee agreementsprovided that the firm had an attor-ney’s lien on the proceeds of cases if the firm was terminated.

Cohen & Malad sued Daly andhis new firm, claiming fee rights inthe cases Daly took with him underthe doctrine of quantum meruit. It did not sue Daly’s clients. It did seek a preliminary injunctionagainst Daly to prevent him fromdistributing the fee portion of clientrecoveries. Daly claimed, amongother things, that Cohen & Maladhad breached its contract with himand also violated the Indiana WagePayment Statute. After a benchtrial, the trial court denied bothsides relief against the other,including relief to Cohen & Maladon its quantum meruit claim. The trial court’s rationale was that Cohen & Malad should havebrought an equity claim against the clients, not against Daly.

Four factorsCohen & Malad appealed,

arguing that the seminal case ofGalanis v. Lyons & Truitt, 715N.E.2d 858 (Ind. 1999), requiredthe trial court to give it an equitableportion of the fees Daly collectedwhen the cases he took with himyielded recoveries. Cohen & Maladv. Daly, 17 N.E.2d 940 (Ind. Ct.App. 2014). Cohen & Malad hadshown at trial that its lawyers con-tributed more than 1,000 hours to the cases Daly took with him.

Without providing muchrationale, the Court of Appeals firstheld it was error for the trial courtto hold that Cohen & Malad shouldhave sued its former clients, notDaly. This was undoubtedly asound decision. Ever since Galanis,the law in Indiana has been clearthat these types of fee-divisionfights should be between thelawyers without dragging the clients into the fray. I wrote aboutthis at some length some years ago.Lundberg, “Splitting the Baby:Dividing Fees Between SuccessiveContingent Fee Lawyers,” Vol. 50,No. 5 Res Gestae 38 (December2006)

The Court of Appeals went onto rule that Cohen & Malad was notentitled to any fees from the casesDaly took with him. The majority,in an opinion written by JudgeBaker, pointed out that Galanis wasan equity case arising from the doc-trine of unjust enrichment. Lookingat the following factors, the Courtof Appeals held the trial courtproperly found that Daly was notunjustly enriched: (1) The clients,given a choice, had opted to go withDaly. (2) There was no agreementbetween Cohen & Malad and Daly,described as “sophisticated parties,”concerning how fees should bedivided in the circumstances. (3) There was no agreementbetween Cohen & Malad and Dalyregarding non-competition orownership of client files. (4) Cohen& Malad made a lot of money fromDaly’s work when he was with thefirm.

Non-competition agreement … huh?

The third point is worth discussing further. The Court of Appeals’ opinion failed to takeaccount of Rule of ProfessionalConduct 5.6(a), which provides: “A lawyer shall not participate inoffering or making a partnership,shareholder, operating, employ-ment, or other similar type ofagreement that restricts the rightsof a lawyer to practice after termi-nation of the relationship … .” Or to discuss Matter ofTruman, 7 N.E.3d 260(Ind. 2014), a lawyer discipline case in whichthe Supreme Court heldthat a lawyer’s associateemployment agreementviolated that rule because,in part, it “included pro-visions for dividing fees if Associate left the firmthat were structured to

ETHICS C

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Splitting the baby revisited: lawyer fee fightsBy Donald R. Lundberg

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



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create a strong financial disincen-tive to prevent Associate from continuing to represent clients hehad represented while employed bythe firm.” Id. at 260. The TrumanCourt criticized the agreementbecause it “hampered bothAssociate’s right to practice law and Associate’s Clients’ freedom to choose a lawyer … .” Id. at 261.The Court of Appeals in Cohen & Malad also failed to give anyexpress consideration to theaxiomatic point that lawyers don’town their clients; clients are free to discharge counsel at any time,for any reason.

Too good to be true

Nonetheless, the Court ofAppeals stated that it was consider-ing those four factors, includingfactor three, in determiningwhether the trial court’s decisionwas clearly erroneous. In the end,

the court basically concluded thatCohen & Malad had already madeenough money from Daly’s workwhile he was with the firm and wasentitled to nothing from the clients’cases that Daly took with him.“While [Cohen & Malad] was entitled to make a shrewd deal forDaly’s services, under these circum-stances, we agree with the trialcourt that [Cohen & Malad] has failed to prove that Daly wasunjustly enriched, and, therefore[Cohen & Malad] has failed toshow that it is entitled to quantummeruit recovery.” 17 N.E.3d at 947.

Judge Crone dissented, point-ing out that in his view the com-pensation Daly was paid while atCohen & Malad was irrelevant tothe Cohen & Malad’s claim that it was entitled to be compensatedfor the 1,000-plus hours that itsattorneys had invested in the casesDaly took with him. Judge Crone

thought that Galanis required thatCohen & Malad must be equitablycompensated for its contribution to the cases from which Daly wouldreceive a fee.

One word: GalanisIn a brief per curiam opinion

on transfer, the Supreme Courttook note of the four factors con-sidered by the Court of Appeals’majority. Interestingly, the Courtdid not comment on whether factor three focused on elementsthat are problematic under Rule of Professional Conduct 5.6(a), the Truman case and the idea that clients have the autonomy tochoose their lawyers. It reversed,noting per Galanis that absent a contrary agreement “‘a lawyerretained under a contingent feecontract but discharged prior to thecontingency is entitled to recoverthe value of services rendered ifthere is a subsequent settlement oraward[,]’ and in that case, ‘the fee is to be measured by the proportionof the total fee equal to the contri-bution of the discharged lawyer’sefforts to the ultimate result[.]’”Slip op. at 2, quoting Galanis at860. The case was remanded withinstructions for the trial court tofollow Galanis’s methodology bydetermining what proportionalcontributions were made by theattorneys at Cohen & Malad andDaly’s new firm. The Court alsosummarily affirmed the Court ofAppeals’ finding of error in the trialcourt’s reasoning that Cohen &Malad should have sued its formerclient, not Daly.

There is nothing earth-shatter-ing here. It is a reaffirmation of the continued vitality of the Galanisapproach to dividing fees afterlawyers handling contingent feecases part company. There is plentyof room for reasonable, privatecontractual understandingsbetween lawyers. But absent

ETHICS CURBSTONE continued from page 35


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such agreements, the defaultmethodology will be as described in Galanis that the fees in the casewill be divided using a ratio basedon the hours the feuding lawyersinvested in the representationadjusted for other factors, like thequality of the lawyer’s respectiveefforts. It is also reaffirmation ofthe important notion that lawyer-versus-lawyer fee fights should beconfined to the lawyers and notbecome an imposition on clients.

What’s cause got to do, got to do with it?

In closing I should point outthat there is a dearth of authority inIndiana on how such situations areto be handled when a lawyer claim-ing fees has been discharged by theclient for good cause or abandonsthe representation without justcause. The Indiana fee-divisioncases arise from circumstanceswhere there was no fault associatedwith the change of lawyers. Cohen& Malad is a good example of that.The law firm was discharged notbecause it did anything untowardin the clients’ cases, but merelybecause Daly left and the clientshad to choose to stay or go. In Galanis, the first lawyer took a judicial position and could nolonger continue with the represen-tation.

I suggest that it is a differentcase when the client discharges a lawyer for good cause and hires a new lawyer to carry on with therepresentation; or when a lawyerabandons the client’s case withoutjust cause. Should the dischargedlawyer be entitled to nonethelessclaim a quantum meruit fee? A recent, well-reasoned case from Minnesota says, “No.” In Re Petition for Distribution ofAttorney’s Fees between StowmanLaw firm, P.A. and Lori PetersonLaw Firm, 855 N.W.2d 760 (Minn.Ct. App. 2014). In that case, the

lawyer urged the client to accept asettlement offer. The client declinedthe offer as the client is absolutelyentitled to do. See Prof. Cond. R.1.2(a). Instead of carrying forwardwith the representation, the firstlawyer quit, leaving the client tohire new counsel. When the secondlawyer settled the case for twice theearlier offer, the first lawyer suedfor a fee from the recovery. The

Minnesota Court of Appeals heldthat the first lawyer was not entitledto any fee from the matter. Theclient’s exercise of her exclusiveright to reject a settlement offer didnot create just cause for the lawyerto abandon the client and her case.Having done so, the lawyer alsoabandoned any claim to a fee.


RG 06.15_RG 09.05 6/17/15 9:54 AM

The Indiana Supreme Courtissued four opinions inFebruary, but none of them

involved civil matters or disputes.Additionally, the Supreme Courtgranted transfer in two civil cases,which are discussed below. ForFebruary, 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

Vicarious liability of medicalprovider in malpractice claim

Stafford alleged that certainmedical acts and omissions caused

her baby to be still-born and filed a medical malpracticecomplaint on behalf of herself and herdeceased child. Thetrial court concludedthat Stafford had failedto present a genuineissue of material factconcerning the stan-dard of care exhibitedby the medical profes-sionals and, thus,granted summaryjudgment in favor of the defendants.Stafford had designat-ed an affidavit from a reviewing medicalprofessional, but the Indiana Court of Appeals affirmedthe trial court’s conclusion that theaffidavit did not rebutthe presumed appro-priate standard of care. Stafford v.

Szymanowski, 13 N.E.3d 890 (Ind.Ct. App. 2014).

The Court of Appeals notedthat Stafford’s expert directedmuch of the blame toward a doctorwho had not been named as a partyto the claim before the medicalreview panel. To that end, theCourt of Appeals consideredwhether a health care providercould be held vicariously liable forthe perceived acts of medical mal-practice committed by its agent-physician when the physician’s conduct was never reviewed by the medical review panel. The courtheld that the health care providercould not. The Indiana SupremeCourt has granted transfer. Staffordv. Szymanowski, 25 N.E.3d 746(Ind. 2015).

Transfer orders vacated in insurance coverage matter

In Selective Insurance Companyof South Carolina v. Erie InsuranceExchange, 14 N.E.3d 105 (Ind. Ct.App. 2014), the Indiana Court ofAppeals held that a lessor was an“additional insured” under lessee’sinsurance policy and that an exclu-sion of coverage for property ininsured’s care, custody or controldid not apply to a claim againstlessor. On Dec. 18, 2014, theIndiana Supreme Court grantedtransfer. Selective Ins. Co. of SouthCarolina v. Erie Ins. Exchange, 21N.E.3d 838 (Ind. 2014). On Feb. 5,transfer was denied with JusticeDavid dissenting from the denial.

Similarly, on Feb. 26, theIndiana Supreme Court grantedtransfer and vacated IndianaInsurance Co. v. Kopetsky, 14 N.E.3d850 (Ind. Ct. App. 2014). After further review, oral argument and discussion among the justicesin conference, the Court vacated its transfer order and reinstated the Indiana Court of Appeals’ published decision as precedent. Chief Justice Rush and Justice

Dickson dissented from the denialof transfer.

INDIANA COURT OF APPEALS

Requirement of a final judgment prior to filing a notice of appeal

In Arflack v. Town of Chandler,27 N.E.3d 297 (Ind. Ct. App. 2015),the Indiana Court of Appeals dis-cussed appellate jurisdiction when a trial court simultaneously grants a motion to dismiss while provid-ing additional time to the non-moving party to amend the com-plaint. After a motion to dismisswas entered against Arflack, he chose to file a notice of appealprior to the expiration of the timeallowed for him to amend his com-plaint and thus before a final dispo-sition had been rendered by thetrial court. The court, in Arflack,reasoned that the only partyharmed by an entry of judgmentimmediately upon the grant of themotion to dismiss was the partyagainst whom the motion wasdirected. Thus, if the non-movingparty does not wish to plead over,then no harm has occurred fromthe error. Under the circumstances,the court deemed that a denial ofappellate jurisdiction and reviewwould only serve to delay the judi-cial process. Chief Judge Vaidikconcurred in the result in a separateopinion.

When to file an attorney fee lienIn Clem v. Watts, 27 N.E.3d

789 (Ind. Ct. App. 2015), the Courtof Appeals reviewed statutory evolution, legislative history andcase law to determine whether anattorney’s intention to hold a lienupon a judgment was valid whenentered prior to the judgment beingrendered. After 14 months repre-senting a party in a dissolution proceeding, Watts withdrew his

REC

ENT DEC

ISIO

NS 2/15

Appellate civil case law updateBy Curtis T. Jones and Jasmine Ivy-Dede


Jasmine Ivy-DedeSummer Associate

Bose McKinney & Evans LLPIndianapolis, Ind.

[email protected]

Curtis T. JonesBose McKinney & Evans LLP

Indianapolis, [email protected]

RG 06.15_RG 09.05 6/17/15 9:54 AM

appearance. Two months later, one year before issuance of the dissolution decree, Watts filed a Notice of Attorney Fee Lien,“enter[ing] his intention ... to holda lien pursuant to Indiana Code§33-43-4-1 on all money and property awarded to [Wife].”

The Court of Appeals con-strued the attorney fee lien statute,which states, in relevant part, anintention to hold a lien on a judg-ment must be entered “not laterthan sixty (60) days after the date the judgment is rendered …upon the docket or record in whichthe judgment is recorded.” TheCourt of Appeals reasoned that thestatute’s clear and unambiguouslanguage requires that a lien mustbe entered “after” the judgment isrendered and recorded. This hold-ing is consistent with the court’sconstruction of the mechanic’s lienstatutes. In sum, Clem held thatWatts’ attorney fee lien filed beforejudgment was entered was invalid.

Volunteer doctrine rejected

In Hunckler v. Air Source-1,Inc., 26 N.E.3d 65 (Ind. Ct. App.2015), transfer denied (Ind. May14), the Indiana Court of Appealsreversed the trial court’s grant ofsummary judgment. Hunckler wasinjured when Miller, Air Source-1’spresident and sole employee,requested his assistance lowering a furnace down the stairs of a homewhere Hunckler resided. The trialcourt concluded that Hunckleroperated as a volunteer when he agreed to assist Miller, uponMiller’s request, following case law.A split, 2-2, decision in Thompsonv. Owen, 218 N.E.2d 351, 358 (Ind. Ct. App. 1966), concludedthat a plaintiff who had beeninjured while aiding a defendant, at defendant’s request, was a volun-teer and hence barred from recov-ery unless there was proof theinjury was willful. In Hunckler,

the Court of Appeals questionedwhether Thompson’s plurality wasbinding, ultimately deciding to not follow the Thompson outcome.Adopting an approach outlined bythe Supreme Court of Michigan,James v. Alberts, 626 N.W.2d 158,162 (Mich. 2001), the Court ofAppeals decided to “abandon” thevolunteer doctrine in favor of tradi-tional tort and agency principles.The trial court’s grant of summaryjudgment in favor of the defendantwas reversed, and the case remand-ed. Judge Robb issued a separateopinion concurring in result.

Landlord liability to signators of lease

In Meridian North Investmentsv. Sondhi, 26 N.E.3d 1000 (Ind. Ct. App. 2015), an individualentered into a lease on behalf of hiscompany. That individual was laterinjured while on the leased premis-es and sought recovery from thelandlord. The landlord argued thatan exculpatory provision in thelease prevented the injured partyfrom recovery. This argument was rejected. The Court of Appealsnoted that the lease was notbetween the injured party and thelandlord – but between the injuredparty’s company and the landlord.Thus, the injured party was foundto be a third party to the lease, not a tenant, and able to proceedwith his claim against the landlord.

Application of the commonknowledge exception

Jamie Thomson suffered aninjury to her shoulder and armwhen her arm was found danglingfrom an operating table during a hysterectomy procedure at St.Joseph Regional Medical Center(SJRMC) in Thomson v. SaintJoseph Regional Medical Center, 26 N.E.3d 89 (Ind. Ct. App. 2015).Approximately one hour into thesurgery, Dr. Michael Borkowski,


the anesthesiologist for the proce-dure, noticed the arm dangling due to a board supporting her arm becoming detached at some point in the surgery. Dr. Borkowski, unaware of how or when the board detached, reat-tached the board and made a notein his record. This case arrived atthe Court of Appeals after the trialcourt granted summary judgmentin favor of defendants, SJRMC andDr. Borkowski, relying on the med-ical review panel’s determinationthat the defendants were not negli-gent nor the proximate cause of Thomson’s injuries.

Dr. Zimmerman, a neurologistat SJRMC who diagnosed Thomsonwith a right radial nerve injury,likely caused by compression, latertestified that he believed the injuryresulted from the fallen arm board.While the trial court determinedDr. Zimmerman’s testimony, alongwith the testimony of other hospitalpersonnel, insufficient to rebut the findings of the medical reviewpanel, the Court of Appeals con-cluded otherwise. Citing severalcases, the Court of Appeals deter-mined the case to be one of “com-mon knowledge,” declaring “com-mon sense and experience leads us to conclude that an arm boardshould not become detached leav-ing a patient’s arm dangling forsuch a period of time that thepatient suffers nerve injury.” The Court of Appeals, determiningthe case fitting for exception underthe doctrine of res ipsa loquitur,held that expert testimony was not required in the case. Further, the findings and testimony of Dr. Zimmerman were sufficient to rebut the opinion of the medicalreview panel, creating a question of fact. Summary judgment in favorof the defendants was reversed.


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Admissibility of testimony from naprapath as medicalexpert

In Walnut Creek Nursery, Inc.v. Banske, 26 N.E.3d 648 (Ind. Ct.App. 2015), the Court of Appealsheld that pretrial motions are irrel-evant when a party does not objectto the admissibility of certain testi-mony during trial that may havebeen precluded by a motion in limine. Therefore, the only issue on appeal was whether, as a matterof law, a naprapath may testify as to the treatment of a patient in Indiana.

Walnut Creek Nursery, Inc.,d/b/a Alsip Home & Nursery(Alsip), appealed a jury verdict in favor of Barbara Banske(Banske), alleging that the trialcourt committed reversible error by allowing a naprapath, LauraGrice (Grice), to offer expert med-ical testimony. Grice is an Illinois-licensed naprapath who providedtreatment to Banske’s injuries inIllinois, for slip-and-fall injuriessustained on Alsip’s premises inIndiana. The Court of Appeals inBanske does a nice job describing

the practice and treatment of anaprapath.

The Court of Appeals notedthat whether a naprapath may testi-fy concerning treatment of a patientin Indiana is one of first impres-sion. Indiana does not licensenaprapaths, whereas in Illinois suchpractice is subject to regulation and control by a state agency. TheCourt of Appeals stated that givenGrice’s treatment of Banske pre-and post-injury and her licensedstatus under Illinois law, her testi-mony with regard to Banske’sinjuries was potentially “helpful” to the finder of fact. ReferencingKyowski v. Burns, 388 N.E.2d 770(Ill. App. Ct. 1979), the Court ofAppeals held that “Grice’s testimo-ny about her treatment of Banske’sinjuries was sufficiently connectedto Banske’s slip and fall” andaffirmed the trial court’s decision.

Claim for violation of Indiana’s Antitrust Act

In Skyline Roofing & SheetMetal Co., Inc. v. ZiolkowskiConstruction, Inc., 26 N.E.3d 1024(Ind. Ct. App. 2015), the Court of

Appeals reversed the trial court’sgrant of summary judgment onbehalf of the defendants. The courtheld that the complaint “sufficient-ly alleged a scheme instigated byZiolkowski to exclude Skyline and to constitute a restraint of free competition,” and remandedthe cause for further proceedings.To arrive at this conclusion, theCourt of Appeals reasoned that thecollective designated evidence wentbeyond “‘speculation’ and ‘innuen-do,’ rais[ing] at a minimum a gen-uine issue of material fact thatZiolkowski colluded to substitute a non-union contractor with aunion contractor.”

Defining limitations of Indiana Department of Natural Resources authority

The Indiana Court of Appealsreviewed the legality of high-fencehunting of deer in Indiana Dept. ofNatural Resources v. Whitetail Bluff,LLC, 25 N.E.3d 218 (Ind. Ct. App.2015), and held that, presently, thispractice is not prohibited by law inIndiana. The decision, affirming thetrial court’s grant of summary judg-ment to Whitetail Bluff, also con-strued the statutory exceptions to Indiana Department of NaturalResources (IDNR) authority andresponsibility. The court held that the Department exceeded itsauthority when it attempted to reg-ulate operation of Whitetail Bluffbased upon Emergency Rule 312IAC 9-3. The Department improp-erly disregarded a limitation of itsauthority, excepting “cervidaelegally owned or held in captivityunder a license or permit,” readingthe exception listed in subsection(a) as independent from theauthority granted IDNR in subsec-tion (b). Ind. Code §14-22-1-1(2015). Citing DeHart v. Town ofAustin, Ind., 39 F.3d 718, 723 (7thCir. 1994), the Court of Appealsreasoned that Section 14-22-1-1

RECENT DECISIONS 2/15 continued from page 39


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“should be construed to mean that the Department has authorityto manage all fish and wildlife inIndiana except animals that arelegally owned or being held in captivity under license or permit,”holding that the statute does notauthorize the Department to pro-tect and manage wild animals fitting the exception. The Court ofAppeals acknowledged the ethicalarguments and public policy con-cerns, but noted that the task ofdeciding such issues is for theIndiana General Assembly.

Curtis T. Jones is a partner at BoseMcKinney & Evans LLP in the firm’s litigation, insurance and appellategroups. While at Valparaiso UniversitySchool of Law, Curtis served as executivesymposium editor for the ValparaisoUniversity Law Review, earned an honors program scholarship, and servedfor a year in an externship with the Hon. Kenneth F. Ripple, U.S. Court ofAppeals, Seventh Circuit. Upon graduat-ing and prior to joining Bose McKinney& Evans, Curtis served as a judicial lawclerk to Justice Theodore R. Boehm on theIndiana Supreme Court. His email [email protected].

Jasmine Ivy-Dede is a summer associate at Bose McKinney & EvansLLP, currently pursuing two degrees: a J.D. at the I.U. Robert H. McKinneySchool of Law and a master’s in publicaffairs/public management at the I.U.School of Public & EnvironmentalAffairs. She also has held positions at LADD Realty and at Indianapolis-area advocacy groups such as Stand forChildren and the Indiana Institute forWorking Families. In addition to herstudies, Jasmine is involved in manyactivities on campus, including I.U.Student Outreach Clinic, the Women’sCaucus, Black Law Student Association,Student Ambassador and Phi Delta Phi.As an undergrad, she served as presidentof the Political Science Student Associa-tion and participated in the BlackStudent Union and the African American Chorale Ensemble.


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The Indiana Supreme Courtissued three opinions inFebruary that addressed

the concealment-tolling provisionfor criminal offenses, several claimsin a death penalty case, and a shortopinion in a prosecutorial miscon-duct case to “prevent a potentialmisunderstanding of Indiana’s fundamental error doctrine.” The Court of Appeals decided casesinvolving issues of prosecutorialmisconduct, the sufficiency of evi-dence for criminal confinement,the single larceny rule, and discov-erability of pharmacy records.

INDIANA SUPREME COURT

Narrow construction of concealment-tolling provision

Class B felony charges must befiled within five years, but IndianaCode section 35-41-4-2(h)(2)exempts any time from criminalstatutes of limitation during whichan accused “conceals evidence ofthe offense, and evidence sufficientto charge the person with thatoffense is unknown to the prosecut-ing authority and could not havebeen discovered by the authority by exercise of due diligence … .”

In Study v. State, 24 N.E.3d 947(Ind. 2015), the trial court denied a motion to dismiss a robberycharge filed more than five yearsafter the crime. The State’s amend-

ed charging informa-tion alleged the defen-dant had concealed evidence of

(1) his identity by wear-ing a mask during theoffense; (2) the vehiclethat he used to driveaway after the robbery;(3) the trash can usedduring the robbery thathe took from the bank; (4) clothing he wore during the robbery; (5) personal propertytaken from a victim;

(6) the weapon used during the commission of the offense; and (7) evidence relating to other robberies which displayed a common modus operandi …

Id. at 951. After reviewing severalIndiana cases, the Court explainedthat cases “applying the conceal-ment-tolling provision to only positive acts that conceal that anoffense has been committed arecorrect.” Id. at 953. Emphasizingthat courts have given a narrowconstruction to provisions that tollthe statute of limitations, the Courtconcluded that none of the defen-dant’s actions prevented “lawenforcement from discovering that a bank had been robbed. The State’s ability to investigate the crime and develop a case wasnot thwarted.” Id. at 954. Rather,authorities “discovered the robberyand were able to begin investigatingimmediately.” Id.

Death penalty case affirmed:presumption of prejudice from extra-judicial communication with jurors rebutted

In Weisheit v. State, 26 N.E.3d3 (Ind. 2015), the Indiana SupremeCourt addressed several claims ondirect appeal of a death penaltycase, including exclusion of aprison administration expert’s testimony, denial of for-cause challenges during jury selection,suppression of statements to police,and the propriety of the death sentence.

The opinion was one of theCourt’s first opportunities to applythe framework from Ramirez v.State, 7 N.E.3d 933 (Ind. 2014), for claims of jury taint from com-munications with people outsidethe jury. Specifically, defendants are entitled to a presumption of prejudice if they show by a preponderance of the evidence:

(1) extra-judicial contact or commu-nications between jurors and unau-thorized persons occurred, and (2)the contact or communications per-tained to the matter before the jury.If the defendant makes both show-ings, [t]he burden then shifts to theState to rebut this presumption ofprejudice by showing that any con-tact or communications were harm-less. If the State does not rebut thispresumption, then the trial courtmust grant a new trial.

Id. at 15-16 (internal citations and quotation marks omitted).

In Weisheit, Juror Number 10brought cookies baked by his wifeto the jury room. An accompanyingnote read, “Thank you for your service for the family of Alyssa[and] Caleb Lynch. I will pray foryou all to have strength and wis-dom to deal with the days ahead.God bless!” Id. at 13. Alyssa andCaleb were the children the defen-dant was charged with killing.

The trial court questioned the15 jurors and alternates individual-ly, of which “four were unaware of the note, five were aware of thenote but had not read it, and theremaining six recalled that the notethanked them for their jury service.Each stated that the note had noeffect on them.” Id. at 13. The trialcourt individually questioned thejurors, issued an admonishment,and dismissed Juror Number 10. Id. at 16.1

Fundamental error and prosecutorial misconduct

Last year in Brummett v. State,10 N.E.3d 78 (Ind. Ct. App. 2014),the Court of Appeals cited numer-ous examples of misconduct,including that the deputy prosecu-tor “improperly distinguished the roles of the prosecution anddefense, vouched for the credibilityof the witnesses and the justness ofthe cause, and asked argumentativeand inflammatory questions.” Id. at 88. Although defense counsel

CRIM

INAL JUST

ICE NOTE

S 2/15

Prosecutorial misconduct, criminal confinement, other holdingsBy Prof. Joel M. Schumm


Joel M. SchummClinical Professor of LawIU Robert H. McKinney

School of LawIndianapolis, Ind.

[email protected]

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did not object to any of these, the Court of Appeals neverthelessreversed based on fundamentalerror.

The panel later issued a shortopinion on rehearing, concludingthe misconduct was “much moreegregious than in” Ryan v. State, 9 N.E.3d 663 (Ind. 2014), and that “the prosecutor’s misconduct did amount to fundamental error under the standard now to be used.” Brummett v. State, 21 N.E.3d 840 (Ind. Ct. App. 2014).That quotation could be read tosuggest the Indiana Supreme Courthad altered the fundamental errorstandard in Ryan.

In its short opinion, theIndiana Supreme Court explainedthat Ryan had not altered the fun-damental error doctrine. Brummettv. State, 24 N.E.3d 965, 966 (Ind.2015). The Court summarily

affirmed the opinion of the Courtof Appeals “[w]ith the exception ofthe rehearing opinion’s potentiallymisleading reference to ‘the stan-dard now to be used.’” Id.

COURT OF APPEALS

Prosecutorial misconduct in closing argument

After reversing a criminal con-finement conviction based on a vio-lation of the Confrontation Clause,the Court of Appeals addressedclaims of prosecutorial misconductthat could arise if the State chose to retry the defendant, who hadalso been charged with rape andother offenses on which the jurydid not reach a verdict. Thornton v. State, 25 N.E.3d 800 (Ind. Ct.App. 2015). As in Brummett,the alleged misconduct occurredduring closing argument, anddefense counsel failed to object.

First, in response to defensecounsel’s argument that samplesfrom the crime scene were “incon-clusive” for a match of the victim’sblood, the prosecutor argued thepolice “had a minimal amount of time because of the speedy trialrequest in which to get all this testing done.” Id. at 806 (italicsremoved). Because defendants havea constitutional right to a speedytrial, blaming a “shortcoming in theState’s evidence on a defendant’sinvocation of a fundamental rightsurely constitutes prosecutorialmisconduct, and likely also consti-tutes fundamental error.” Id.

Second, the prosecutor empha-sized that women are “made to feellike they’re on trial” or “criminals”and that “we re-victimize thesepeople who come forward with



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rape.” Id. The Court of Appealsfound the comments fell withinthree prohibited categories of argument: (1) convicting a defen-dant for reasons other than guilt,(2) invoking sympathy for a victim,and (3) urging a conviction to“encourage other victims to comeforward.” Id.

The Court of Appeals admon-ished the prosecutor from makingsimilar comments at a retrial.

Insufficient evidence of criminal confinement

In McFadden v. State, 25N.E.3d 1271 (Ind. Ct. App. 2015),the Court of Appeals addressed thesufficiency of evidence for criminalconfinement, a Class B felony.Reviewing precedent, the courtexplained that moving a victimeven a few feet has been sufficientfor a conviction but that the Statemust prove “substantial interfer-ence” with the victim’s liberty without consent. Id. at 1274. InMcFadden, the defendant pushed,hit and kicked the victim andpulled his hair. The victim “nevertestified that he felt confined,” andhis injury during the battery didnot prove confinement. Id. TheCourt of Appeals vacated the con-finement conviction and orderedreinstatement of the Class C felonybattery conviction, which had beenvacated by the trial court based on double jeopardy concerns. Id. at 1275.

Single larceny and restitution reversal

A department store employeeconvicted of two counts of theftand ordered to pay more than$2,500 in restitution obtained reliefon two grounds from the Court ofAppeals in Hill v. State, 25 N.E.3d1280 (Ind. Ct. App. 2015). First, thecourt ordered one of the two theftcounts vacated based on the singlelarceny rule because the defendant’s

CRIMINAL JUSTICE NOTES 2/15 continued from page 43

theft of currency (Count 1) andinventory (Count 2) occurred at thesame cash register within minutesof each other. Id. at 1282. Second,the Court of Appeals vacated therestitution order because the trialcourt had included losses fromtheft allegations unrelated to theconvictions in its restitution award.Restitution must be based on theactual loss to the store, and theemployee was detained by loss prevention officers, and the itemswere confiscated from her at thattime. Id. at 1283.

INSPECT records discoverableby criminal defendant

The existence of a valid pre-scription is a defense to the Class D felony offense of possession of a controlled substance. Lundy v.State, 26 N.E.3d 656, 657 (Ind. Ct.App. 2015). But when a defendantsubpoenaed the Indiana Board of Pharmacy for a copy of herINSPECT (“Indiana scheduled prescription electronic collectionand tracking program”) report, the Board filed a motion to quash,which the trial court grantedbecause the defendant had failed to show she could not get her prescription records elsewhere. Id. at 657 & n. 2.

Applying Indiana’s three-parttest for discoverability of records,the Court of Appeals reversed. Id. at 660. The Board did not disputethat the records were material toher defense. Moreover, the courtheld that a defendant knowingwhere she could “possibly” obtainher records did not make thoserecords “readily available” to her,which is part of the particularityrequirement intended to maximizediscovery. Id. at 662. �1. The Court further found the defendant was notentitled to a mistrial based on “cumulative jurorimpropriety” because he failed to establish thatan actual juror was biased. Id. at 16. The trialcourt had found Juror Number 2 untruthfuland removed him from the jury. Id. at 15. Juror Number 66 was not selected.

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FAIR COMMEN

T

Focusing on the needs of a growing senior populationBy Michael D. Wilhelm

failure would be unsuccessful or result in repeated cardiac or pulmonary failure resulting in death. More information on Indiana’s POST form can be found at www.indianapost.org.

Attorney volunteers from the PTRP and Elder Law sections coordinated and presented programs in at least 50 counties throughout Indiana to hundreds ofseniors at venues such as libraries, senior centers, com-munity rooms and hospitals. Some attorneys, such asJohn W. Longnaker (Madison County: Anderson andPendleton) and Teri A. Pollett-Hinkle (Grant andBlackford counties) gave multiple presentations.

In addition to the attorney volunteers who gavepresentations, members of the Elder Law and PTRPsections also provided materials for the presentations,recruited presenters and coordinated with local AreaAgencies on Aging to schedule programs. Keith P.Huffman and Christopher L. Nusbaum, both fromBluffton, created a PowerPoint® presentation titled“Advance Health Care Planning in Indiana: What You Need to Know,” which was distributed to eachattorney presenter to use in developing their own pre-sentations. The following attorneys each served as coor-dinators and recruiters in regions throughout the state:Connie L. Bauswell, Douglas D. Germann Sr., Keith P.Huffman, Doris G. Brauman Moore, Monica S. Doerr,Jennifer W. Terry, Michael D. Wilhelm, Teri A. Pollett-Hinkle, Tricia R. Tanoos, Rebecca W. Geyer, Crystal L.Francis, Christopher J. Holly, E. Paige Freitag, DouglasR. Denmure, Adrienne M. Flannery, Jeff R. Hawkins,Jennifer J. Hawkins, Peggy F. Timmel, Adair W. Brentand David Smith Jr. These are just some of the attor-neys who dedicated their efforts and valuable time tohelp make the ISBA’s celebration of Elder Law Month a success.

If you did not get a chance to participate this year, but would like to in the future, please mark yourcalendars for Elder Law Month each May and feel free to reach out to the current chair of the Probate,Trust & Real Property Section, Sarah C. Jenkins,[email protected], or the current chair of the Elder Law Section, Jane Langdon Null,[email protected], for more information. �


During national Elder Law Month, which isevery May, attorneys across the country offerpublic seminars, elder law clinics and other

activities designed to educate the public. To commem-orate Elder Law Month in Indiana, the State Bar’sProbate, Trust & Real Property (PTRP) and Elder Lawsections, in conjunction with local Area Agencies onAging, sponsored and presented informational pro-grams on advance directives to Hoosier senior citizens.The programs were open to the public throughout thestate at no cost.

The National Academy of Elder Law Attorneysestablished May as Elder Law Month as a way to educate seniors and their families about their legaloptions in dealing with long-term care, estate planning,Medicaid, Medicare, elder abuse and fraud, and otherimportant issues. Elder Law Month endeavors to edu-cate seniors and empower them to address these likelyissues and find legal services and resources.

America’s population age 65 and over numberedapproximately 44.7 million in 2013, an increase of 8.8 million, or nearly 25 percent, since 2003. The num-ber of Americans between 45 and 64 – who will reach65 over the next two decades – increased by nearly 21 percent between 2003 and 2013. Elder Law Monthemphasizes the importance of planning for the healthand legal needs of an increasingly older population.

Programs this year incorporated the relatively new Indiana Physician Orders for Scope of Treatment(POST) form, which became effective July 1, 2013.

Indiana’s POST form can be used by aqualified person, who after consultationwith a healthcare provider, can makeadvance decisions concerning use of CPR,medical interventions, antibiotics andartificially administered nutrition. A qual-ified person is one with: 1) an advanced,chronic and progressive illness or frailty;2) an injury, illness or disease from whichthere will be no recovery and death willoccur within a short period of time with-out the provision of life-prolonging proce-dures; or 3) a medical condition such thatresuscitation from cardiac or pulmonary

Michael D. WilhelmDeFur Voran LLP

Fishers, [email protected]

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Res Gestae - June 2015

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Transcript of Res Gestae - June 2015