Res Gestae - January/February 2015

January/February 2015 Vol. 58, No. 6

INDIANA COURTS: WORKING TO FULFILL

THE PROMISE OF JUSTICE

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

20 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

28 WORDWISEProf. Kevin Bennardo, Indianapolis

31 RECENT DECISIONS 9/14Jane Dall Wilson and Donald E. Morgan, Indianapolis

41 CRIMINAL JUSTICE NOTES 10/14Prof. Joel M. Schumm, Indianapolis

46 FAIR COMMENTDerrick H. Wilson, New Albany

Res Gestae (USPS–462-500) is published monthly, except for January/February and July/August, by the Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204.Periodicals postage paid at Indianapolis, Ind. POSTMASTER: Send address changes to Res Gestae, c/o ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204. Subscriptions to members only,$5 annually from dues. All prior issues available exclusively from William S. Hein & Co., 1285 Main St., Buffalo, NY 14209. ISBA members are encouraged to submit manuscripts to the editor forpossible publication in Res Gestae. Article guidelines can be obtained by calling 800/266-2581 or visiting www.inbar.org. Res Gestae’s printer, Print Directions, Inc., is an Indiana-certified Woman Business Enterprise.

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

The Journal of the Indiana State Bar Association

RES GESTÆJanuary/February 2015 Vol. 58, No. 6

D E PA R T M E N T S10 THE PROMISE

28 UNIFORM ACTS

RES GESTÆ • JANUARY/FEBRUARY 2015 3

F E AT U R E S

8 ISBA WELCOMES 25 LAWYERS TO LDA

10 WORKING TO FULFILL THE PROMISE OF JUSTICEBy Chief Justice of Indiana Loretta H. Rush

7 NEWS 38 FIT TO PRACTICE 44 CLASSIFIEDS

Cover photo by Vincent Morretino of Chief Justice of Indiana Loretta Rush

giving her first “State of the Judiciary” address in the House chamber at the Indiana Statehouse

From L-R: House Speaker Brian Bosma, Gov. Mike Pence, Chief Justice Rush & Lt. Gov. Sue Ellspermann

38 COMMUTING

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

EVANSVILLE

1 2 3 N .W. 4 T H S T , R O O M 2 2E VA N S V I L L E , I N 4 7 7 0 8

8 1 2 . 4 2 5 . 3 1 8 0

INDIANAPOLIS

8 5 2 0 C E N T E R R U N R DI N D I A N A P O L I S , I N 4 6 2 5 0

3 1 7. 5 6 9 . 9 6 4 4

A P P O I N T M E N T S

P. O . B OX 3 6 5N E W H A R M O N Y , I N 4 7 6 3 1

M A I L

8 0 0 . 8 0 9 . 3 7 7 6T O L L F R E E

Mental health is a real issue that barassociations and judicial confer-ences are only beginning to dis-

cuss openly. This emerging enlightenmentpromises to shed warm light on a once shad-owy, taboo topic. A recent example of thismovement appeared when Ontario BarAssociation President Orlando Da Silvaspoke publicly about his personal battleswith depression and a related suicideattempt (http://tinyurl.com/Ontario-Bar-prez-mental-health). My comments at the 2014 ISBA Annual Meeting and in the ISBA Prez Blog in November (“Adapt & Overcome”) featured my own relativelyrecent experience of discovering significantexecutive function impairment due to atten-tion deficit disorder (ADD).

The world population has alwaysincluded mentally impaired people (in theBible, see Saul in 1 Samuel 16 and Nebucha-dnezzar in Daniel 4). On some level every-one is impaired relative to someone elsebecause we all have different mental capaci-ties. Some of us function sufficiently well to pass medical board or bar exams with-out treatment, but we function below our potential because of hidden mental hindrances. I have the pleasure of knowingwonderful Indiana lawyers who battleautism, bipolar disorder and other impair-ments that affect executive mental functionsignificantly. They work beside you, acrossthe courtroom from you and in the stateagencies that regulate your clients’ lives and businesses. If you cannot imagine a schizophrenic lawyer functioning effectively in any work environment, consider the example of Elyn Saks, professorof law (http://tinyurl.com/living-with-schizophrenia).

A profession fails in a mission to serveits members and the public if it does not try to detect mental health impairment andoffer effective assistance before its impairedmembers flounder and spin out of control.Some impaired lawyers, like me, muddlethrough life without realizing that we havean arm tied behind our backs and neverthink to seek treatment. Too many struggleso intensely with impairment that they seekrelief in all the wrong places, such as in gam-bling, pornography, alcohol and drugs.

If you have practiced law for more thana decade, you can probably think of multiplelawyers who showed signs of mental healthimpairment, and you may remember sometragic demises. An old friend from my daysin the ISBA Young Lawyers Section died several years ago reportedly from a drug overdose. In one of my guardian ad litemappointments as a young lawyer, a HarvardLaw School graduate defrauded a womanwho was 90 years of age or older to financethe cocaine habit that eventually killed himjust after he lost his license to practice lawand just before he reached middle age.

So what can you do as a rank and filelegal professional? If you are a member ofthe Indiana bar, you can volunteer to helpimpaired lawyers and judges find treatmentand recovery through the Judges & LawyersAssistance Program (http://www.in.gov/judiciary/ijlap). You can explore ways to help the Indiana State Bar AssociationWellness Committee in its constant searchfor new ideas and strategies to help membersimprove physical and mental health. If youare interested in advocacy for disabled legalprofessionals and their clients, the Outreach& Inclusion Subcommittee of the State Bar’sMembership Committee would welcomeinterest in forming a disability group thatcould become a new committee or section.

If none of these service opportunitiesappeals to you, please help carry some waterby refraining from making disparaging jokesand remarks about people who are strug-gling with such disrespectful labels as “nuts,”“crazies” or “psychos.” Those comments per-petuate oppressive stigmas that discouragedisabled peoplefrom seeking relieffrom the pain andanguish that stemsfrom secret battlesof the mind. Who knows – that mind may be your own. �

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

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

http://www.inbar.org

OFFICERSPresident Jeff R. Hawkins, Sullivan

President-Elect Carol M. Adinamis, Westfield

Vice President Mitchell R. Heppenheimer, South Bend

Secretary Michael S. Dalrymple, Indianapolis

Treasurer O. Adedoyin Gomih, Merrillville

Counsel to the Ted A. Waggoner, RochesterPresident

BOARD OF GOVERNORS1st District Scott E. Yahne, Munster

2nd District Robyn M. Rucker, Valparaiso

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

4th District Martin E. Seifert, Fort Wayne

5th District Candace D. Armstrong, Brook

6th District Patrick J. Olmstead, Greenwood

7th District Ann Z. Knotek, Brownsburg

8th District Hon. Leslie C. Shively, Evansville

9th District Crystal G. Rowe, New Albany

10th District Wilford A. Hahn, Huntington

11th District Tonya J. Bond, Indianapolis

11th District Terry W. Tolliver, Indianapolis

11th District Andrew Z. Soshnick, Indianapolis

At-Large District Rafael A. Sanchez, Indianapolis

At-Large District Sonia C. Das, Indianapolis

Past President James Dimos, Indianapolis

House of Delegates Andi M. Metzel, Indianapolis,Chair

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

Young Lawyers Matthew J. Light, Indianapolis,Section Chair

STAFFExecutive Director

Thomas A. Pyrz • [email protected]

Administrative AssistantBarbara M. Whaley • [email protected]

Associate Executive DirectorSusan T. Jacobs • [email protected]

Administrative AssistantJulie A. Gott • [email protected]

Director of CommunicationsSusan J. Ferrer • [email protected]

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

Graphic Designer & PhotographerVincent Morretino • [email protected]

Legislative CounselPaje E. Felts • [email protected]

Director of Special ProjectsSection & Committee Liaison

Maryann O. Williams • [email protected]

Administrative AssistantBarbara L. Mann • [email protected]

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

Administrative AssistantKimberly D. Latimore • [email protected]

Director of CLEChristina L. Fisher • [email protected]

Assistant to Director of CLEKassandra Adams • [email protected]

Section & Committee LiaisonMelanie Zoeller • [email protected]

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

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

Bookkeeper & Convention RegistrarSherry Allan • [email protected]

ReceptionistChauncey L. Lipscomb • [email protected] RES GESTÆ • JANUARY/FEBRUARY 2015 5

PRESIDENT’S PERSPECTIVEJEFF R. HAWKINS

[email protected]

Let’s talk about lawyer mental health

RG 01-02.15_RG 09.05 2/10/15 10:56 AM

Nominationssought for ISBAboard positions

Any lawyer member of theIndiana State Bar Associa-

tion who desires to be consideredfor nomination to a vacancy on the Board of Governors shouldconvey that interest to the chair of the Association’s NominatingCommittee, Jim Dimos ofIndianapolis.

Members who are nominatedwill face an election at the annualmeeting of the Association Assem-bly to be held in French Lick inOctober, after which a two-yearterm will commence.

District vacancies for the termOctober 2015 through October2017 are as follows:

District 1, representing Lake County;

District 4, representing Allen County;

District 5, representing thecounties of Benton, Boone, Carroll,Cass, Clinton, Fountain, Howard,Jasper, Montgomery, Newton,Tippecanoe, Warren and White;

District 10, representing the counties of Adams, Black-ford, Delaware, Grant, Henry,Huntington, Jay, Madison, Miami,Randolph, Tipton, Wabash, Wayneand Wells; and

District 11, representingMarion County, two positions.

At-Large, one position. (Mem-bers from any district may apply.)

Letters of interest and résumés,not longer than two pages (withinformation as to leadership posi-tions or other activity within theState Bar as well as other affilia-tions) should be sent to Jim Dimos, Chair, ISBA NominatingCommittee, Indiana State BarAssociation, One Indiana Square,Suite 530, Indianapolis, IN 46204.The deadline for receipt is April 1.

Court of Appealsadopts new opinion format

The Indiana Court of Appealshas adopted a new, reader-

friendly format for all opinions and orders, effective Jan. 26.

The format employs a new,larger typeface (Calisto MT); para-graph numbering for easy refer-ence; ragged-right copy justifica-tion; and line spaces instead ofindents to mark new paragraphs.

The changes are based ontypography industry best practicesand are meant to optimize both

print and online reading experi-ences. The new format is also moreuseful for optical character recogni-tion, which is used to make scanneddocuments searchable.

For illustration, view the newformat here: http://tinyurl.com/new-op-format.

“Mobile devices and comput-ers are the coin of the realm fornews and information,” ChiefJudge Nancy H. Vaidik said. “It makes sense to respond to that reality with an opinion format that’s easy to read on paper or screen.”

Besides the new appearance,each element of the new format will build an underlying structureinto all opinions and orders, whichis crucial for some assistive tech-nologies that “read” documentsaloud for some users.

The new format was developedby State Court Administration.

BEN

CH

& B

AR

NEW

S


Statewide Dispute Resolution ServicesEmployment • Labor • Civil Rights

Helping Parties Reach Fair ResolutionsThrough Skill, Insight & Experience

Registered Indiana MediatorOver 30 Years of Experience

www.panicoadr.com

JOHN ROBERT PANICOMediator • Arbitrator • Fact Finder

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

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

DOING PRO BONOJust Got Easier

www.indianalegalanswers.orgAnswer Online. Anytime.

How do I apply for a hardship

or probationary license?

Can my mom be made power of attorney if

my sister now has the power of attorney?

How do we do this?

[email protected]

615 N. ALABAMA ST. #122INDIANAPOLIS, IN 46204

The Indiana State BarAssociation recentlyannounced the 2015

class of its Leadership Develop-ment Academy (LDA). The lawyersare accomplished legal practitionerswho have been admitted to practicefor less than 15 years. The LDA is a statewide leadership programestablished to empower and develop lawyers to be informed,committed and involved so thatthey may fill significant leader-ship roles in bar associations, local communities and organiza-tions.

The 25 members will partici-pate in five sessions featuring pro-fessional facilitators and prominentspeakers from various disciplines to inform participants about lead-ership principles and techniques,the importance of effective leadersin organizations to maximize effi-ciency and effectiveness, and the

challenges and rewards of leader-ship in action.

Members of the 2015 Leader-ship Development Academy are:James T. Acklin Jr., Indianapolis,State Public Defender’s Office;Jennifer Bays Beinart, Zionsville,Bays Family Law; Mark E. Bloom,Fort Wayne, Beckman Lawson;Melissa J. Buckley, Indianapolis,law clerk for Justice Steven H. David, Indiana Supreme Court; Catherine A. Clements,Indianapolis, Faegre Baker Daniels;Colin E. Connor, Indianapolis,Plews Shadley Racher & Braun;Traci M. Cosby, Indianapolis, lawclerk for Justice Robert D. Rucker,Indiana Supreme Court; Sarah W. Cudahy, Indianapolis, IndianaEducation Employment RelationsBoard; Charles B. Daugherty,Shelbyville, McNeely Stephenson;Sarah B. Fandrey, Evansville,Bowers Harrison; Randy M. Fisher,

Fort Wayne, Leonard HammondThoma & Terrill and PublicDefender’s Office; Michelle C.Goodman, Indiana Judicial Center,Indianapolis; Katherine R. Gould,Fort Wayne, Burt Blee DixonSutton & Bloom; Rhea M. Jones-Price, Vincennes, Joe Black LawOffice; Trent A. McCain, Merrill-ville, McCain Law Offices, P.C.;Sara McClammer, Indianapolis,Bennett & McClammer; Justin R. Olson, Indianapolis, law clerkfor Chief Justice Loretta H. Rush,Indiana Supreme Court; AbbigailA. Rohmiller, Richmond, Amy NoeLaw; Greg A. Schrage, Noblesville,Church Church Hittle & Antrim;Elizabeth A. Shuster, Indianapolis,Woodard Emhardt MoriartyMcNett & Henry; Freedom S.Smith, Indianapolis, Ice Miller;Sarah N. Snoeberger, Lafayette,Stuart & Branigin; Ala’a Wafa,Indianapolis, Cummins Inc.; Sue E. White, Covington, The LawOffice of Sue White; and Jordan P.Williams, Merrillville, NiSourceCorporate Services Company.

ASS

OC

IATI

ON

NEW

SISBA welcomes 25 lawyers to LDA

8 RES GESTÆ • JANUARY/FEBRUARY 2015

ISBA members:

Update youraddresses

email & postal online at

www.inbar.org

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

The 2015 ISBA Leadership Development Academy Class

JAMES T. ACKLIN JR.Indianapolis

JENNIFER BAYS BEINARTZionsville

MARK E. BLOOMFort Wayne

MELISSA J. BUCKLEYIndianapolis

CATHERINE A. CLEMENTSIndianapolis

COLIN E. CONNORIndianapolis

TRACI M. COSBYIndianapolis

SARAH W. CUDAHYIndianapolis

CHARLES B. DAUGHERTYShelbyville

SARAH B. FANDREYEvansville

RANDY M. FISHERFort Wayne

MICHELLE C. GOODMANIndianapolis

KATHERINE R. GOULDFort Wayne

RHEA M. JONES-PRICEVincennes

TRENT A. MCCAINMerrillville

SARA MCCLAMMERIndianapolis

JUSTIN R. OLSONIndianapolis

ABBIGAIL A. ROHMILLERRichmond

GREG A. SCHRAGENoblesville

ELIZABETH A. SHUSTERIndianapolis

FREEDOM S. SMITHIndianapolis

SARAH N. SNOEBERGERLafayette

ALA’A WAFAIndianapolis

SUE E. WHITECovington

JORDAN P. WILLIAMSMerrillville

To a joint session of the IndianaGeneral Assembly on Jan. 14

What an honor it is for meto stand before you, themen and women of the

Indiana General Assembly, in thesehistoric chambers on behalf of mycolleagues on the Supreme Court;Chief Judge Vaidik and our hard-working Court of Appeals; and the heart and soul of the judicialbranch – our trial court judges. It is on behalf of all of us that I offeryou this address on the condition of Indiana’s courts.

In countless ways, the soundcurrent state of our courts is attrib-utable to former Chief Justice BrentDickson – a man of integrity whosecalm, civil and thoughtful approachwas instrumental in leading ourjudiciary during the last severalyears – a period of much change.Please join me in showing our appreciation for Justice Dickson.

The “condition of the courts”is best understood within a contextof purpose: Is our system of justicein Indiana working for the peopleand businesses it promises to serve? As our Indiana Constitutionset forth almost 200 years ago, our courts must be open to everyperson for every injury – so that citizens’ conflicts, whether criminalor civil, are decided in an impartialforum, at an efficient price, withfair outcomes. Today you will hear several of those citizens’ stories that speak to this purpose.

Your Indiana Supreme Courtdoes much more than decide casesand write opinions. The Court ischarged by the very constitution of this state with critical adminis-trative responsibilities and preser-vation of the rule of law. Our dutieshave grown tremendously over the course of the last three decades

and will continue to grow throughthis new year.

• On Dec. 5, Justice Rucker continued his efforts to provideaccess to justice to litigants withlimited English proficiency byswearing in 19 new certified andqualified court interpreters, bring-ing the total to 107 – including forthe first time an American SignLanguage interpreter.

• By the end of 2014, underJustice Massa’s leadership, theCourt had expanded its electroniccase management system to 217courts in 51 counties, representingnearly 60 percent of the 1.5 millionnew cases filed in Indiana courtsannually.

• Recognizing that the path tojustice can be tough for unrepre-sented Hoosiers, the Court fol-lowed Justice Dickson’s vision toprovide legal services to the poor by adopting an innovative rulerequiring all attorneys to reporttheir pro bono volunteer legal services.

• Under Justice David’s leader-ship, the Juvenile Detention Alter-natives Initiative has increased fromeight to 19 Hoosier counties in thelast two years, covering 56 percentof the state’s at-risk youth. You willhear more about this remarkableinitiative in a few moments.

Just as independence is vital to judicial decision making, collab-oration is essential to our dailyoperations. Our partnerships with the General Assembly andExecutive Branch are woventhroughout court administrativefunctions. My judicial colleaguesand I are grateful for these valuablepartnerships.

Three areas deserve specialattention today: improving publicsafety, strengthening Hoosier fami-lies, and modernizing our courts in order to fulfill the promise of justice in Indiana.

STATE

OF TH

E JUDICIARY

Indiana courts: working to fulfill the promise of justiceBy Chief Justice of Indiana Loretta H. Rush


Not FDIC Insured No Bank Guarantee May Lose Value © 2015 Diamond Capital Management

317-261-1900 www.dmdcap.com

Proven expertise for uncertain markets.

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Increasing public safety

In terms of public safety, the courts are enthusiastic partnersin implementing the legislature’smasterful criminal code reform.There is every reason to believe that the new sentencing philosophyexpressed in HEA 1006 will reducerecidivism (or re-offending), makecommunities safer, save money andimprove our criminal justice systemas never before. Success and valida-tion of these reforms will require all three branches of government to work together. We are ready. We have already trained probationofficers, judges and their staffs in record numbers this past year. We are adopting new probationstandards and administering grantsto our counties to ensure safe,effective and efficient communitysupervision.

With people like AaronLouden as probation officers, weare ready to stand with you to meetpublic safety needs. The GeneralAssembly determined DNA shouldbe collected from convicted felons,but without a central record show-ing whether the sample had beencollected, officers like Aaron had to duplicate efforts. The folks inJackson County where he workswon’t be surprised by this – hethought of a solution and recom-mended the courts include DNAdata in our Offender ManagementSystem. We took his great sugges-tion, and last June our court com-puter system, called INCITE, beganshowing whether a DNA samplehad previously been collected froman offender. Yes, this saves StatePolice, their lab and correctionstime and money – but ultimately it is about public safety. ProbationOfficer Aaron Louden is in thegallery today, and I am pleased to publicly say, “Thank you.”

The ability to access and shareoffender information betweencourts, corrections and probation

departments is vital to public safety.The Supreme Court and its agen-cies continue to develop technologyfor exactly that reason. And theseenhanced court technologies alsobenefit law enforcement and execu-tive branch agencies.

• The BMV can make licensingdecisions, thanks to more than15,000 weekly court notices.

• The Department of Revenuecan send tax warrants to clerks electronically.

• And police officers can issueelectronic tickets.

All this becomes possible whencourts can collect and integrateoffender and court data informa-tion.

The Protective Order Registryfor victims of violence is an excel-lent example of court technologyimproving public safety. TheRegistry saves lives by making

protection orders immediatelyavailable to local, state and federalpolice. This system also notifies the victim by email or text messagewhen the order is issued. By theclose of 2014, these critical noticeswere issued 96,000 times.

Another important piece ofcriminal justice reform involves our children. The Court partneredwith the Department of ChildServices, Department of Correctionand the Indiana Criminal JusticeInstitute to implement the JuvenileDetention Alternatives Initiative.We refer to it as “JDAI.” This revo-lutionary program ensures juvenileoffenders are in the right place-ment, for the right reasons and forthe right length of time. The endresult is fewer children locked up,lower recidivism, fewer arrests andfewer children made to stand trial


(continued on page 13)

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

in the adult system. WayneCounty’s Judge Darrin Dolehanty,when speaking of JDAI, reported:“The most exciting part for me isthe tri-county partnership we havedeveloped with neighboring Henryand Delaware counties. We havealready started sharing resourcesand data, and hope to serve as anexample to the rest of the state.” I am not surprised by our judges’willingness to embrace cross-coun-ty partnerships to ensure statewidesuccess. But I sure am proud.

In a similar vein, IndianaProblem Solving or SpecialtyCourts continue to be one of ourgreatest success stories. Participantsin these courts take part in inten-sive treatment programs directlyunder court supervision. Thesecourts address the unique needs of offenders with drug addictionsand mental illness instead of simply

leaving the offenders untreated andsitting in a jail cell. They yield tan-gible results – including workforcedevelopment and preserving fami-lies – and are successful because of collaboration between the courtsand their communities, businesses,prosecutors, defense attorneys, service providers and law enforce-ment.

The Indiana Supreme Courthas certified 68 such specialtycourts. The fastest growing areVeterans Courts. There are current-ly 12 in operation in Indiana, withmore in the works. According tothe National Center for VeteransAnalysis & Statistics, Indiana hasapproximately 476,000 veterans(one of the highest per capita in thenation) – a number of whom findthemselves in our courts followingtheir service to our country.

Floyd County’s Judge MariaGranger, a leader in the implemen-tation of Veteran Courts, told meSpecialist Christopher Bunch’sstory. His story illustrates all that isgood in our Hoosier court system –justice tempered with mercy andbased upon the principles of refor-mative justice as set forth in ourIndiana Constitution. SpecialistBunch served our country honor-ably for six years. He was assignedto Company C, 1st Battalion, 152ndInfantry Division. In 2008, he wasdeployed to combat in OperationIraqi Freedom where he providedconvoy security for route patrols in Tikrit, Iraq. In his own words,

One of our missions was to recoverequipment after a vehicle rolloverincident that killed one of our com-rades. When we got back home, themission was still taking a toll on us.

STATE OF THE JUDICIARY continued from page 11


©2015 The National Bank of Indianapolis Member FDIC

* Subject to account type** Coming soon

261-9000

SOPHISTICATED TECHNOLOGYMEETS SUPERIOR SERVICE

It’s a rare combination you won’t find anywhere else.

CONVENIENT ACCESS:

Consumer Mobile Check Deposit Consumer Mobile Banking Private Portrait Internet Banking Private Portrait Online Bill Pay Electronic Statements U.S. ATM Surcharge Refunds* Apple Pay**

TRANSACTION ALERTS:

Debit Cards Checking Account Savings Account Bill Pay Credit Cards

ALL Customizable


RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Some of the soldiers that were part ofthat mission even committed suicide.I didn’t realize at that time that therewas something wrong with me, butmy family could see it.

Specialist Bunch brought home several commendations andawards. But he also brought homesevere post-traumatic stress, anxiety

and night terrors from his warexperiences. He struggled, usingalcohol and prescription medica-tions, to cope with life. Christophersaid, “It took me five years to getinto trouble.”

He was arrested for threateningfamily members to get his painmedication. He admitted, “Going

to jail was an awakening.”Christopher was in the ScottCounty Jail, awaiting trial forcharges of felony Intimidation and Disorderly Conduct when theVA approached him. Christopher,his lawyer, the prosecutor and thejudge agreed that Veterans Courtwas the best approach to justice forhim, his family and the community.

While participating in VeteransCourt, he completed the VA sub-stance abuse treatment programand then moved into transitionalhousing and a relapse preventionprogram with mental health treat-ment for post-traumatic stress. All of his treatment was paid usingthe service member benefits that he had earned.

Ultimately, Specialist Bunchwas reunited with his family. Hehas been substance-free for morethan a year and no longer requirespain medication. Christopher isonce again a supportive partner tohis wife, a role model for his sonsand a productive member of hiscommunity, working as a finishcarpenter. He says,

I don’t know where I would be today without Veterans Court. JudgeGranger and her team of mentorsgave me a chance to really heal –something I hadn’t been able to doon my own. The resources and con-tacts that I have made in the courthave been lifesavers.

On Nov. 4, Christopher gradu-ated from Veterans Court. Pleasewelcome Specialist ChristopherBunch and his judge, MariaGranger.

Strengthening our families

In addition to enhancing pub-lic safety, Indiana courts strengthenour Hoosier families. To that end,hundreds of Indiana judges askdaily: “What can I do to strengthenthe families that come before meand improve the lives of children?”



AccidentReconstructionServices

CrashSceneInvestigations

Automobiles • Semi-Trucks

P.O. Box 663New Castle, IN 47362

(765) 545-0262Fax: (765) 529-4501

[email protected]

California MattersIf you have matters in California or referrals, we canhelp you. Please contact Guy Kornblum or his office for information.

In addition to litigation and dispute resolution services, Guy also serves as an expert witness in legalmalpractice and cases relating to insurance claims.

Guy is a native Hoosier and alumnus of Indiana University. He is a member of the Indiana and California bars, and certified in Civil Trial & PretrialPractice Advocacy by the National Board of Trial Advocacy.

Kornblum, Cochran, Erickson & Harbison, LLP1388 Sutter St., Suite 820, San Francisco, CA 94109

Tel: 415.440.7800 • Fax: [email protected]

Serious personal injury & wrongful death • Insurance coverage & bad faithProfessional liability • Business disputes • General civil litigation

For further discussion, contact David McNamar, of counsel to the firm,at [email protected] or 317.299.0160.

www.kcehlaw.com

Guy Kornblum is also available as a mediator.


RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Being in court reflects a particularlyvulnerable time – both personallyand economically. The sooner a citizen can go to court and resolvedifferences with creditors, settle disputes with the landlord, obtainchild support rulings or be madewhole in a suit over injuries, thesooner they can get back to work – and back to their family. Stablefamilies lead to increased gradua-tion rates, which translates into a more educated and skilled work-force, which in turn translates intoa healthier economy.

Justice for these children andfamilies requires more than justissuing rulings. Hoosier judges arecommitted to the larger goal ofstrong families by working withintheir communities on the issuesthat brought the families to court;looking at what is working aroundthe country in terms of evidence-based decision making; and

searching for ways to improve safety, graduation rates and work-force development for vulnerableyouth.

2014 represented the first fullyear of operation of the Children’sCommission, which Gov. Pencesigned into law. This collaborationincludes leadership from all threebranches of government, workingon the toughest issues facing ourchildren, including sex trafficking;the toll that methamphetamine and heroin use takes on our families; infant and child deaths;improving educational outcomesfor vulnerable youth; and overcom-ing homelessness. I have never left a Children’s Commission meetingwithout new insights about thedangers our children face alongwith a shared resolve of work to be done. Many of the hardwork-ing Commission and Task Force members are here today: Senators

Holdman, Lanane, Broden, Yoderand Head, and RepresentativesRiecken and Mahan, and AttorneyGeneral Zoeller. I am personallyappreciative of their hard work, and I know you are, too.

There are also many examplesof how your judiciary strengthensIndiana families, such as FamilyCourts, the Mortgage ForeclosureTrial Court Assistance Project,child support and parenting timeguidelines, mediation and parent-ing programs.

On National Adoption Daythis past November, 100 childrenjoined new families during specialopen adoption proceedings cele-brated in trial courts across thestate. Our Court handed down an order opening the proceedingsto allow photographs, includingmedia. This was done to allow fam-ilies to capture that moment theylegally came together – and also to promote the need for buildinghealthy families through adoption.Judge Mary Willis of Henry Countyasks each child adopted in her courtto pound her gavel and leave amark on her bench. She sees thosemarks each day, and they remindher of the importance of strongfamilies.

Court initiatives promotingguardians ad litem and CourtAppointed Special Advocates(CASA) have produced thousandsof volunteers. Those very specialindividuals, who represent abusedand neglected children in legal pro-ceedings, donated more than400,000 hours last year to advocateon behalf of more than 19,000Indiana children.

In Allen County, Judge CharlesPratt and others gave all foster chil-dren a book and told them it was tocelebrate their future. One 15-year-old boy started crying and said noone had ever told him that before.How long should that 15-year-old in foster care have to wait for



RG 01-02.15_RG 09.05 2/6/15 11:26 AM

a permanent home? Under JudgePratt’s leadership the Court lastyear implemented time standardsand performance measures to all Indiana courts geared towardensuring permanent, safe and timely homes for these children.

We have talked about our chil-dren. Now what about our agingparents? After “liberty and justicefor all,” one of our society’s mosttreasured tenets is “honor thymother and father.” But for eachmember of the Greatest Generationwho receives the tender care offamily, there is another elderly citizen who has no one to protectthem from abuse and neglect. Last year, Adult Protective Servicesreceived 40,000 reports of elderabuse in Indiana.

The population over age 65 in our state will more than doublein the next several decades. Some of those individuals will need helpin managing their affairs. And inmany cases, this help will comethrough the appointment of aguardian. Phillip, a developmental-ly disabled elderly man, collapsed ata gas station in Richmond. Doctorsat Reid Memorial Hospital said heneeded open-heart surgery, but nofamily could be located. A guardianwas assigned to assist with his med-ical emergency, and now he is in agroup home, thriving and involvedin Kiwanis. There are many storieslike Phillip’s.

In 2014, thanks to the initia-tive of Judges Susan Henderson of Fountain County and DianeSchneider of Lake County, Indianabecame the first state in the nationto create a statewide GuardianshipRegistry. The Registry, which wentonline in May, began in just fourcounties and grew to 10 by the endof the year. Marion County willcome online this month. In addi-tion to offering clerks, courts andpractitioners real-time case man-agement tools, the Registry also has

a public portal so that hospitals andhealth care providers, banks, lawenforcement and others who mayencounter emergency situations canquickly and accurately determinewhether someone is subject to aguardianship and act accordingly.

Just as your judiciary works toimprove the lives of children andfamilies, we will also continue towork to ensure the safety and finan-

cial security of our mothers andfathers.

Modernizing court operations

So what is new on the horizonfor the judicial branch in 2015?

First, I bring you very excitingnews from the Indiana Supreme



RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Court technology team led byJustice David and Judge PaulMathias – 2015 will be the year that we begin the move to statewideelectronic filing in Indiana courts.E-filing will transform the wayHoosiers interact with the courts. It will allow litigants, attorneys,businesses and other governmentagencies to interact with the courtselectronically. What does thismean? Many examples of courtprograms discussed this afternoondepend on the ability to enter,store, retrieve and share informa-tion in a timely and cost-effectiveway. Imagine the hours and costsrequired to shepherd tens of mil-lions of pages of paper as they arefiled and refiled, delivered andmailed, stored and shuffled, copiedand recopied, and on and onthroughout Indiana courts andagencies each year!

We’re excited to roll out e-filing this year, and we’re askingfor your assistance to make it suc-cessful. Our judiciary operates onless than 1 percent of the total statebudget. We are fully committed tofiscal responsibility with taxpayerdollars, and a state investment incourt technology, including elec-tronic filing, offers us the best

option for improving our courtswhile conserving our limited finan-cial resources. Pennies of additionalinvestment now will reap dollars ofsavings in future records manage-ment costs. And if our Indianajudicial system is to be on the right course, we must act now.

Second, to fulfill our promiseof justice for businesses in Indiana,we are looking at improving howwe process complex civil cases. The Court is currently working onthe development of a business courtmodel focused on complex com-mercial litigation. Creating this specialty court will bring togetherjudges experienced in handlingbusiness and commercial law casesto preside over a specialized docketwith business-specific resources.Our goal in this endeavor, alongwith the introduction of electronicfiling, is to promote an attractive,predictable and consistent climatefor doing business in Indiana.Many thanks to Justice David,Judge Heather Welch, Judge CraigBobay and their committee for alltheir work here.

A third endeavor on theCourt’s horizon is an initiative that will refine how we determinewhether those arrested on low-leveloffenses should sit in jail awaitingtrial. The Court authorized pilotprograms starting this year toimprove the way courts make pretrial release decisions. New prac-tices can yield wide-ranging bene-fits, such as significant taxpayersavings for jail operations; improv-ing arrestee appearance rates attrial; minimizing wealth-based disparities as to pretrial release; and enabling people to return morequickly to family and work whileensuring public safety. I appreciatethe vision and work of JusticeDickson and this hardworkingcommittee chaired by Judge JohnSurbeck and consisting of judges,

probation officers, lawyers and legislators, including Sen. BrentSteele and Rep. Jud McMillin.

Modern court systems mustbring both vision and action to thepursuit of justice – and I have high-lighted today just a few examples of what our courts can accomplish.We are regularly confronted withnew and increasingly challengingproblems, not just in our decisionmaking, but in our operations and the programs we administer – and those, too, are part of ourresponsibility and constitutionalmission.

I firmly believe the “state of the judiciary” is best measuredagainst its ultimate purpose: Is oursystem of justice in Indiana work-ing for the people and businesses it promises to serve? Facts, figuresand statistics are only meaningful if they support this end.

And by that measure yourIndiana judiciary is strong – andover the next year we will growstronger still, taking on new initia-tives to stay modern and responsiveas we strive to fulfill the promise of justice in Indiana.

I am keenly aware, along withall of my judicial colleagues, that we have a privilege beyond descrip-tion – and the responsibility of a lifetime – to labor in the cause of justice.

These remarks reflect ourvision for the upcoming year topursue justice for all Hoosiers with energy and innovation. Restassured, your Indiana judiciary is vibrant and ever poised to meetthe challenges of the future. �



Child Support SoftwareIndiana

SUPPORT MASTER™4 All Calculations4 All Worksheets4 Large Incomes4 Arrearage and Interest

Professional Software CorporationFast, accurate supportcalculations since 1989

POB 716 812/781-1422Mount Vernon marc.edwin.hawleyIN 47620 @gmail.com

www.supportmastersoftware.com

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

From this observer’s perspec-tive, 2014 was not atypical inlawyer discipline. Here is an

annotated statistical report on theactions of the Supreme Court inlawyer discipline matters. The pro-cedural rules governing the lawyerdiscipline process are located inIndiana Admission & DisciplineRule 23. The substantive profes-sional conduct rules are located inthe Indiana Rules of ProfessionalConduct.

Final orders of disciplinary disposition

42 published final discipline dispositions:

• 23 cases by Court-approved agreements for discipline

22 by order

1 by per curiam opinion

• 1 case on consent to discipline

• 14 cases after a contested hearingbefore a hearing officer

9 by order

5 by per curiam opinion

• 3 cases by reciprocal discipline

• 1 published order of dismissal

Notes:

1. Conditional agreements for discipline, governed by Admis.Disc. R. 23(11)(c), are stipulatedagreements between the Disciplin-ary Commission and the respon-

dent lawyer to resolvea case after theCommission files a complaint. They can be a bitter pill toswallow because therespondent lawyermust state under oaththat he knows that if the proceeding were prosecuted therespondent could notsuccessfully defend

himself. The Court is not requiredto accept a conditional agreementfor discipline (hence the word“conditional”). The Court mayaccept the agreement, reject it orpropose an alternate dispositionthat it would approve. I have writ-ten before about conditional agree-ments. “The Not-So-ConfidentialConditional Agreement forDiscipline,” Vol. 57, No. 9 Res Gestae 30 (May 2014).

2. Consents to discipline, gov-erned by Admis. Disc. R. 23(17),are another way of resolving disci-pline cases without a hearing beforea hearing officer. They are similarto an open plea in a criminal case.Like a conditional agreement fordiscipline, the respondent lawyerwho consents to discipline mustinform the Court that he could notsuccessfully defend himself and iswilling to accept whatever discipli-nary sanction the Court metes out.A consent to discipline is scarybecause the lawyer is throwing him-self at the mercy of the Court withno downside protection.

3.Why the Court decides somecases by brief published order andothers by per curiam opinion is amatter of speculation. Per curiamopinions generally include a morefulsome discussion of the issues in a case than published orders. It appears that the Court will writea per curiam opinion when it dis-bars a lawyer. It did so in 2014 in its only disbarment case. Matter ofGeller, 9 N.E.3d 643. But it also didso in one case where the sanctionwas a private reprimand and one case where the sanction was a public reprimand. Matter ofAnonymous, 6 N.E.3d 903 (privatereprimand “Law Tigers” case) andMatter of Truman, 7 N.E.2d 260(public reprimand). Both caseswere clearly of interest to the prac-ticing bar. I wrote about both of

them in the past year. “Law Tiger,Hidden Dragon: New Uncertaintieswith Lawyer Advertising,” Vol. 57,No. 10 Res Gestae 23 (June 2014);“Odds and Ends: Some RecentCases of Interest,” Vol. 58, No. 2Res Gestae 23 (September 2014).The two other cases decided on percuriam opinions were suspensionswithout automatic reinstatement.Matter of Atkins, 16 N.E.3d 950 (2-year suspension) and Matter of Stern, 11 N.E.3d 917 (18-monthsuspension). But the Court alsoordered similar suspensions bypublished order. See, e.g., Matter of Gardner, 5 N.E.2d 1163 (5-yearsuspension); Matter of Lehman, 3 N.E.3d 536 (2-year suspension);and Matter of Page, 8 N.E.3d 199(2-year suspension). Althoughthere are many cases decided bypublished order that I wish theCourt would have developed morefully in per curiam opinions, itappears that the Court chooses towrite a per curiam opinion when it believes the bench, the bar or thepublic would benefit from a morecomplete understanding of the case.

4. The Court is usually of onemind in lawyer discipline cases, but there are occasional dissents –sometimes on the merits (althoughnot in 2014) and more often on theappropriate disciplinary sanction.In Matter of Page, 8 N.E.3d 199,Justice Dickson dissented to a 2-year suspension, favoring disbar-ment. In Matter of Hurtt, 19 N.E.2d252 (180-day suspension, 90 daysactive with balance stayed with two years of probation); Matter of Benson, 9 N.E.3d 659 (180 daysprobation with automatic reinstate-ment); and Matter of Stern, 11N.E.3d 917 (18-month suspensionwithout automatic reinstatement)(Justice David dissented, favoringmore severe discipline without saying what he thought it shouldbe). Dissents do not always favor

ETHICS CURBST

ONE

Lawyer discipline in 2014: an annotated report from the front lines

By Donald R. Lundberg


Donald R. LundbergBarnes & Thornburg LLP

Indianapolis, [email protected]

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

harsher discipline. In Matter ofGeller, 9 N.E.3d 643, Justice Massadissented in favor of a 3-year sus-pension without automatic rein-statement instead of disbarmentthat the majority ordered.

5. There was one publishedorder finding in favor of therespondent lawyer and dismissingthe case. Matter of Devlin, 4 N.E.2d1180. There could have been moredismissals decided by unpublishedorder. We just don’t know. The Court sometimes finds theCommission did not prove its caseand dismisses without publishingan order or writing an opinion. It is unclear why it chooses to pub-lish an order of dismissal in somecases, but not in others. Presum-ably, it wanted the public to knowwhat it did in Devlin, although thatmight not settle too well with therespondent who was vindicated.

Disciplinary sanctions ordered

41 lawyers sanctioned:

• 1 published order of private reprimand

• 9 public reprimands

• 5 suspensions with automaticreinstatement

1 30-day suspension

2 60-day suspensions

1 90-day suspension

1 180-day suspension

• 14 suspensions without automaticreinstatement

1 indefinite suspension based on Arizona 6-month & 1-daysuspension followed by twoyears of probation

2 180-day suspensions

2 6-month suspensions

3 1-year suspensions

1 18-month suspension

3 2-year suspensions

1 indefinite suspension based on Illinois 3-year suspension

1 5-year suspension

• 10 suspensions with conditions of probation

1 30-day suspension, all stayedsubject to one year of probation

1 30-day suspension, all stayedsubject to probation imposed in Kentucky

1 60-day suspension, all stayedsubject to two years of probation

1 180-day suspension, all stayedsubject to two years of probation

1 180-day suspension, 90 daysactively served, balance stayed subject to three years of probation

2 6-month suspensions, all stayedsubject to 18 months of probation

1 6-month suspension, all stayedsubject to two years of probation

1 6-month suspension, 60 daysactively served, balance stayed subject to three years of probation

1 6-month suspension, 120 daysactively served, balance stayed subject to three years of probation

• 1 disbarment

• 1 barred from practicing in Indiana

Notes:

1. The Court resolved one casewith an order of private reprimand.Matter of Anonymous, 6 N.E.3d 903.This was the Law Tigers case that I wrote about at some length, citedabove. This does not mean therewas only one case decided by pri-vate reprimand. Some private repri-mands could have been issued byunpublished order.

2. Private reprimands are pri-vate only in the sense that the dis-position is usually not published.However, the docket sheet in alllawyer discipline cases is a matter of public record and will reflect thata case was concluded by a privatereprimand. Moreover, there will be an indication on the privatelyreprimanded lawyer’s entry on the Roll of Attorneys that reflects the lawyer has prior discipline, including a link to the Clerk’s


• Will & Trust Contests

• Interference with Inheritances

• Guardianship Disputes

• Co-counsel and Expert Testimony in all Indiana counties

PROBATE LITIGATION

Curtis E. Shirley

Toll Free: 877/953-4900151 N. Delaware St., Suite 1700, Indianapolis, IN 46204

Telephone: 317/685-6512 Facsimile: 317/685-6505

E-mail: [email protected] URL: www.shirleylaw.net


RG 01-02.15_RG 09.05 2/10/15 10:59 AM

online docket sheet for the discipli-nary case.

3. Another form of disciplinethat does not result in a publishedorder is a private administrativeadmonition (“PAA”). TheCommission usually reports thenumber of PAAs (and the numberof private reprimands) in its annualreport. The Commission has notreported its 2014 statistics yet.PAAs are governed by Admis. Disc.R. 23(a) and (b). A PAA can beissued only with the consent of therespondent lawyer before a formalcharging complaint is filed. It isonly available in cases involvingminor misconduct where the antic-ipated final discipline would be nogreater than a public reprimand.Minor misconduct is defined nega-tively by the description of severaltypes of cases that are not eligible to be considered minor. TheCommission must send a copy ofthe letter of private admonition tothe Supreme Court, and the Courthas 30 days to object. If the Courtdoes not object, the letter of admo-nition is issued by the executivesecretary.

4. Orders of suspension longerthan six months must be withoutautomatic reinstatement. Admis.Disc. R. 23(3)(a). This means thatthe lawyer must apply for reinstate-ment and prove fitness to practicelaw by clear and convincing evi-dence at the end of the suspensionperiod. Reinstatement proceedingsare governed by Admis. Disc. R.23(4) and (18).

5. Suspensions for six monthsor less can be with or without auto-matic reinstatement. For example,in 2014 one 180-day suspensionwas with automatic reinstatement,and another was without automaticreinstatement. Compare Matter of Benson, 9 N.E.3d 659 with Matterof Stern, 11 N.E.3d 917.

6. Suspensions with some or all of the suspension time stayed in favor of a term of probation are a relatively recent development andmostly grow out of the availabilityof services to lawyers through the Indiana Judges & LawyersAssistance Program. Probation is regulated by Admis. Disc. R.23(17.1) through (17.4).

7. In 2014, there were twoorders resolving probation revoca-tion proceedings. In one, the Courtrevoked probation and placed thelawyer on indefinite suspensionwithout automatic reinstatement.In the other, the Court extendedthe lawyer’s term of probation for two more years.

8. Disbarment is a permanentexclusion from the practice of lawin Indiana. Reinstatement from an order of disbarment is not possible. Admis. Disc. R. 23(3)(a).Suspensions longer that three yearsare very unusual. In 2014, theCourt ordered one lawyer suspend-ed for five years. Matter of RigaGardner, 5 N.E.2d 1163. Five-yearsuspensions are extraordinarilyrare, with the Court usually optingfor disbarment.

9. The Court is not limited to itstypical sanctions, although Admis.Disc. R. 23(3)(a) might suggest otherwise. In Matter of Greene, 6 N.E.3d 947, the respondent, an Illinois lawyer, who was not regularly admitted to practice inIndiana, was prohibited from prac-ticing law in Indiana in the futureuntil further order of the Court.Normally, discipline orders againstlawyers admitted in other jurisdic-tions are reported to the otherjurisdictions where the lawyer isadmitted. Most states have a recip-rocal discipline procedure that creates a streamlined approach tosecuring a similar disciplinary sanc-tion in the lawyer’s other states ofadmission. Indiana’s rule, which istypical, is at Admis. Disc. R. 23(28).The Indiana sanction in Greene waslikely going to present a challengeto Illinois using its normal recipro-cal discipline process. After all, it would hardly be a problem for Greene if Illinois also said hecould no longer practice in Indiana.Thus, on Oct. 16, 2014, the Illinois

ETHICS CURBSTONE continued from page 21



RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Sponsored by the Indiana State Bar Association in partnership with the O�ce of the Indiana Attorney General and Feeding Indiana's Hungry.

7th AnnualMarch Against Hunger

A friendly “food drive” competition!March 1-31, 2015

Visit www.inbar.org to sign up to participate!

The Indiana State Bar Association

is proud to sponsor the

March Against Hunger,

a friendly “food drive” competition

to collect both non-perishable food

and monetary donations for

Indiana’s 11 regional food banks.

Attorney Registration & DisciplineCommission filed an original disci-pline complaint against Greene,alleging directly (not reciprocally)that he engaged in misconduct as an Illinois lawyer. That case is pending.

Accepted resignations underinvestigation or charges

• 11 resignations accepted

Notes:

1. Similar to a consent to disci-pline or a conditional agreementfor discipline, a lawyer facing a discipline investigation or formalcharges of misconduct may resignfrom the bar. This procedure isfound in Admis. Disc. R. 23(17)and must include the same swornadmission to the allegations underinvestigation or charged in thecomplaint. The affidavit of resigna-

tion is kept under seal by the Courtand is not a matter of public record.A resignation precludes the lawyerfrom applying for reinstatement for five years, and the reinstatementprocess is the same discussed earli-er. The Court accepts resignationswith a brief order, finding that theaffidavit of resignation is in properform.

2. Resignations are typicallyresorted to by respondents in caseswhere serious discipline is expected,but not necessarily. A lawyer whomight expect much less disciplinethan the equivalent of a 5-year sus-pension might nonetheless chooseto resign for reasons known only toa lawyer. Because orders acceptingresignation do not discuss thenature of the case and the affidavitsof resignation are sealed, there is noreadily available public record ofthe reason lawyers resign. At the

most, if a lawyer resigns after a for-mal complaint of misconduct isfiled, the charging complaint is apublic record available from theSupreme Court Clerk’s office andwould generally shed some light on the nature of the case.

Non-cooperation

• 11 interim suspensions for non-cooperation

• 8 non-cooperation suspensionsconverted to indefinite suspensions

• 1 reinstatement after cooperation

Notes:

1. Cooperation with the lawyerdiscipline process is mandatory.Indiana has robust procedures for dealing with non-cooperativelawyers. Initially, a lawyer who disregards his duty to respond inwriting to a grievance will be sus-

ETHICS CURBSTONE continued from page 22


RG 01-02.15_RG 09.05 2/6/15 11:26 AM

pended on an interim basis on theCommission’s application for anorder of suspension and failure toshow cause after the Court ordersthe lawyer to do so. Admis. Disc. R.23(10)(e) and (f)(1) through (2).The suspension will be lifted if thelawyer cooperates and the executivesecretary certifies that cooperationto the Court. Admis. Disc. R.23(10)(f)(3). If the lawyer does not cooperate after six months ofbeing suspended, the Court, on theCommission’s motion, can convertthe lawyer’s suspension to an indefinite suspension from practice. Admis. Disc. R. 23(10)(4).Thereafter, like any indefinitely suspended lawyer, the lawyer willhave to go through the normalreinstatement process.

2. The 11 interim suspensionsfor non-cooperation involved eightunique lawyers, because four ofthem dealt with the same lawyer.That lawyer was also the subject of one of the orders converting hisinterim suspension to an indefinitesuspension from practice.

3. I have written on the impor-tance of cooperation in the disci-pline process before. “CooperationWith and Contempt of LawyerRegulation,” Vol. 56, No. 2 Res Gestae 26 (September 2012).

Interim suspensions

• 7 interim suspensions for crimespunishable as a felony

• 3 lawyers reinstated to practice

Notes:

1. A lawyer who is found guiltyof a crime punishable as a felony is subject to being suspended on an interim basis until the Courtorders differently or related finaldiscipline is ordered. Admis. Disc.R. 23(11.1)(3). Both the lawyer who is found guilty and the judgein whose court the lawyer is foundguilty must report that fact to theDisciplinary Commission within

10 days of the finding of guilt.Admis. Disc. R. 23(11.1)(1) and(2). Unpublished orders clarify thata “crime punishable as a felony”includes a conviction of an A mis-demeanor pursuant to alternativemisdemeanor sentencing to a guiltyfinding of a D felony charge. See I.C. §35-50-2-7.

2. There is a separate category of interim suspension underAdmis. Disc. R. 23(11.1)(b), whichthe Commission can seek if two-thirds of the Commission membersconclude that “the continuation ofthe practice of law by an attorneyduring the pendency of a discipli-nary investigation or proceedingmy pose a substantial threat ofharm to the public, clients, poten-tial clients, or the administration of justice.” There were none ofthese in 2014.

3. As noted earlier, some activedisciplinary suspensions six months


or shorter and all suspensionslonger than six months require that the lawyer prove fitness to bereinstated by clear and convincingevidence. The criteria for provingfitness for reinstatement are inAdmis. Disc. R. 23(4)(b). Threepreviously suspended lawyers successfully completed that processin 2014.

Other proceedings

• 3 lawyers held in contempt

$1,000 fine and disbarment

$500 fine

$300 fine

Notes:

1. There is no express provisionin Admis. Disc. R. 23 about the useof contempt. It hardly matters sincean order of discipline is an order of a court that is enforceable usingcontempt powers. The duties of


RG 01-02.15_RG 09.05 2/6/15 11:26 AM

ISBA sponsors March Against Hunger

The Indiana State Bar Association is teaming up with the Office of the Indiana Attorney General and Feeding Indiana’s Hungry (FIsH)

for a seventh consecutive year cosponsoring the March Against Hunger, a friendly “food drive” competition to raise both nonperishable food and monetary donations for Indiana’s 11 regional food banks March 1-31.

“The March Against Hunger has given Indiana’s legal community anopportunity to make a difference in the lives of many Hoosier families whostruggle with hunger,” Attorney General Gregory F. Zoeller said. “Attorneysalways serve those who need our help, and in March each year we demon-strate our commitment to serve those who struggle to put food on the table.”

Since 2009, the March Against Hunger food drive has generated 52,354pounds of food and $231,799 in monetary donations for Indiana foodbanks.

“Nobility demands justice and delivers compassion. The March AgainstHunger program offers Indiana lawyers and judges the chance to displaynobility by feeding our hungry Hoosier neighbors,” ISBA President Jeff R.Hawkins said.

“The need for food assistance continues to be high, as many Hoosiers are still struggling to earn enough money to make ends meet,” FIsH ExecutiveDirector Emily W. Bryant said. “We appreciate the donations that come as aresult of this food drive and the amount of work that the ISBA and Office ofthe Indiana Attorney General do to help shed light on hunger in Indiana.”

The winner in each of the following categories will be presented with the coveted “Attorney General’s Cup” trophy: Solo Proprietor (1 lawyer);Small Firm (2-11 lawyers); Medium Firm (12-21 lawyers); Large Firm (22-49 lawyers); X-Large Firm (50+ lawyers); and Public/Non-Profit.

Visit www.inbar.org for more information about this initiative to raisemuch-needed resources for Indiana’s regional food banks. Firms can sign upanytime before the competition begins or during the collection period. �

disbarred and suspended lawyersare described in Admis. Disc. R.23(26). A violation of that sectioncan be and is from time to timeenforced by the Court by contemptproceedings initiated by theDisciplinary Commission.

A closing comment

In 2014, 11 cases included one or more charges that the lawyerengaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d). In twocases, the Court found that theCommission did not prove itscharge. In one case, the Courtadopted a hearing officer’s recom-mendation that the Commissiondid not prove one violation of Rule 8.4(d) but did prove another.Inquiring minds want to know:What does one have to do to actprejudicially to the administrationof justice? In an upcoming column,I plan to examine that question. �

ETHICS CURBSTONEcontinued from page 25


Bridget O’Ryan317.255.1000boryan@oryanlaw�rm.com1901 BROAD RIPPLE AVENUEINDIANAPOLIS, IN 46220IIND1901

yarob317

riB

LIS, IN 46220APOANIVENUELE A AVENUEPAD RIPOR B

mm.co�[email protected]

nyaRRya’t Odgei

E

Clio: practice management simplified

Completely Web-based, Clio is a practice-manage-

ment system that is specificallydesigned for solo practitioners & small law firms. Simplify thecritical business components of your legal practice using Clio,which includes accurate timetracking, online billing andinvoicing, secure collaborationand communication tools, busi-ness productivity and report-ing solutions and so much more.As an ISBA member, you are eligible to receive a 10 percentdiscount on your subscription.Visit http://landing.goclio.com/inbar.html to sign up today. �

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Call the ISBA at 317.639.5465 or 800.266.2581 for more information about sponsoring this event.

Young Lawyers Section: Judicial Reception – 4/29/2015

Indiana State Bar Association • www.inbar.orgOne Indiana Square, Suite 530 • Indianapolis, IN 46204317-639-5465 • 800-266-2581 Toll Free • 317-266-2588 Fax

Name________________________________________________

Address______________________________________________

City, State, Zip_________________________________________

Phone_______________________________________________

Fax__________________________________________________

Email________________________________________________

Payment Information:

❑ Check (make payable to Indiana State Bar Association)

Credit Card (3-4 digit Card Veri�cation Code & signature required)

❑ VISA ❑ MasterCard ❑ Discover

Card Number__________________________________________ Exp. Date_____ /_____ 3-4 digit Card Veri�cation Code_________

Signature_____________________________________________

Pricing Information_____ FREE - Tickets for judges are complimentary!

_____ $20 - ISBA Members or any spouse/guest of judge _____ $40 - Non-ISBA Members

The Young Lawyers Sectioninvites you to attend the annual

Indiana StateBar Association

Judicial Reception

Don’t miss this unique opportunity to network with your local judges and colleagues. Firms may sponsor this special event, or you may purchase individual tickets. Sponsoring organizations receive one complimentary ticket per $250 donation and will be recognized in State Bar publications.

Wed., April 295:00 - 7:00 pm

Conrad Indianapolis50 W. Washington St.

Indianapolis, IN 46204

Wed., April 29Wed., April 295:00 - 7:00 pm5:00 - 7:00 pm

Conrad IndianapolisConrad Indianapolis50 W. Washington St.50 W. Washington St.

Indianapolis, IN 46204Indianapolis, IN 46204

A $25 service fee will be applied to cancellations received on or before 4/22/15.No refunds on cancellations received after 4/22/15. If you send someone else

in your place, please provide ISBA with that person’s name.

Register online at www.inbar.org or submit completed registration form to:

Fax: 317-266-2588, Attn: CLE & Events • Email: [email protected] more information, please call the ISBA at 800-266-2581.

Although the UniformCommercial Code1

remains the elephant ofuniform acts, attorneys of all stripesmay find themselves litigating with-in provisions of uniform acts, fromthe Uniform Act on Fresh Pursuit2

to the Uniform SimultaneousDeath Act3 to the Uniform TradeSecrets Act.4 When litigating withinthese statutory provisions, attor-neys should be mindful of addition-al authority available to aid in the construction of uniform acts.Although an enacted uniform act is in many senses no different thanany other statute adopted by theIndiana legislature, uniform actsarrive with luggage not found inhomespun legislation: namely, thecomments and other materials ofthe drafting body and judicial inter-pretations from other states thathave adopted the same statutorytext. These “extra” tools can serveas important interpretive aids when litigating a matter covered by a uniform act.

The ‘legislative history’ of the drafting body

Most uniform acts are theproduct of the Uniform LawCommission (ULC), also known as the National Conference ofCommissioners on Uniform StateLaws. This body, established in1892, seeks to “provide[] states

with non-partisan,well-conceived andwell-drafted legislationthat brings clarity andstability to criticalareas of state statutorylaw.”5 The members of the ULC work todraft and promote theadoption of uniformstate laws in areaswhere nationwideconsistency is “desir-able and practical,”6

for example, by reduc-

ing uncertainty or reducing compli-ance costs.7 Other bodies draft andpropose model legislation as well,such as the American Law Instituteand its Model Penal Code.8 Eachstate legislature is free to enact uniform laws or to partially enactor modify uniform laws to betterconform to its state’s policy goals.

The Uniform Law Commissiongenerates more than just the barestatutory text of uniform acts.Along with that statutory text, ULCmaterials generally include a prefa-tory note to the act as a whole andcomments explaining and illustrat-ing each section of the act. TheULC also provides a summary ofeach uniform act and highlightsreasons why states should adopt it.Although none of this material isgenerally enacted into law by statelegislatures, it can be useful as aninterpretive tool. In essence, this“legislative history” provides a window into how the ULC, as thedrafting body, perceives the act.

The “cardinal rule of statutoryconstruction” in Indiana is todetermine, give effect to, andimplement the legislature’s intent.9 Although the legislaturedoes not enact the Uniform LawCommission’s comments andprefatory provisions, these materi-als can be consulted to determinethe legislative intent in enacting theuniform act into law.10 The draftingbody’s comments specifically havebeen found to be “indicative of theLegislature’s intent in enacting astatute based on a uniform act.”11

When the court finds the languageof the uniform act and the enactedstatute almost identical, the com-ments to the uniform act are “astrong indicator of the legislativeintent when [the legislature] enact-ed” the uniform act into law.12

Thus, when construing anIndiana statute derived from amodel or uniform act, Indianacourts take heed of the comments

and prefatory material generated by the Uniform Law Commission,even though that material is notpassed into law. An attorney litigat-ing the interpretation of such astatute should be mindful that thedrafting body’s comments could be determinative to the court’s con-struction. Because the commentsdo not appear in the Indiana Code, it is important to consult the uniform act itself to locate and research the comments. TheUniform Law Commission makesits comments available within thefinal version of each of its uniformacts posted to its website.13

Out-of-state judicial interpretations

In general, judicial opinionsfrom other states do not bindIndiana courts but may be consid-ered persuasive authority. Variousaspects of a non-binding precedentmay make it more or less persuasivewith a court of decision.14 Non-binding precedent takes on a some-what enhanced role, however, whenit comes to the interpretation ofuniform acts.

The purpose of a uniform act is to coordinate the law of multiplestates in a given area. This purposeinforms interpretation of thesestatutes. In the words of theUniform Trade Secret Act as adopt-ed by Indiana, “[t]his chapter shallbe applied and construed to effec-tuate its general purpose to makeuniform the law with respect to the subject matter of this chapteramong states enacting the provi-sions of this chapter.”15 Because thestated purpose of the act is to makethe law uniform across adoptingjurisdictions, the decisional law ofother adopting jurisdictions carriesspecial weight in statutory interpre-tation.

WORDWISE

Special considerations when interpreting uniform actsBy Prof. Kevin Bennardo


Kevin BennardoVisiting Associate Clinical

Professor of LawIU Robert H. McKinney

School of LawIndianapolis, Ind.

[email protected]

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

For example, the IndianaSupreme Court found that the leg-islature’s adoption of the UniformTrade Secrets Act substantially aspromulgated by the Uniform LawCommission indicated that the legislature “sought the uniformapplication of [the act’s] definitionsof trade secret consistent with the application of the act in otheradopting jurisdictions.”16 As aresult, case law from other jurisdic-tions that have adopted the uni-form act “becomes relevant author-ity” for Indiana courts’ construc-tion of the statute.17 This approachhas been taken with regard to otheruniform acts as well, particularlywhen the issue before the Indianacourt is a matter of first impressionin this state.18

Although out-of-state deci-sional law does not rise to the levelof binding authority with respect

to interpretation of uniform laws,attorneys should consult the caselaw of other adopting states whenarguing for an interpretation of an Indiana enactment of a uniform law. The Uniform LawCommission makes it easy to iden-tify the other states that haveadopted its uniform acts. Its web-site contains an “Enactment StatusMap” for each uniform act thatdetails which states have enactedthe act, as well as which states areconsidering it.19 Before relyingupon another state’s interpretation,however, be sure to compare thestatutory text of the other state’sstatute with the Indiana statute. If the two statutory texts are notsubstantially similar, the interpreta-tion of the other state’s statute isunlikely to carry much weight inthe interpretation of the Indianastatute.

Conclusion

When litigating the construc-tion or application of a statute, it isimportant to consult every availableinterpretive tool. When it comes toIndiana statutes derived from uni-form laws, those tools include thecommentary and prefatory notes ofthe drafting body and the enhancedrole of out-of-state precedent inter-preting similar statutes. The inter-pretive aids found in these sourcesmay determine the outcome of the case and should not be over-looked. �1. Ind. Code §§ 26-1-1-101 to -10-104.

2. Ind. Code §§ 35-33-3-1 to -7.

3. Ind. Code §§ 29-2-14-1 to -8.

4. Ind. Code §§ 24-2-3-1 to -8.

5. Uniform Law Commission,http://tinyurl.com/about-the-ULC(last visited Jan. 6, 2015).

6. Id.


�

��

��

• ��

• ��

• ��

• ��

��

��

��

��

� �

!!!�� "��#�"��$%&&�

��'"��"��()*&(�


RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Feighner elected to Judicial NominatingCommission

John O. Feighner was recently elected to serve as the Indiana JudicialNominating Commission District 3 representative. Feighner was elected

by attorneys to fill a vacancy that occurred Dec. 31 when attorney John Ulmer’sterm expired.

District 3 is made up of Allen, Benton, DeKalb, Elkhart, Fulton, Jasper,Kosciusko, LaGrange, Lake, LaPorte, Marshall, Newton, Noble, Porter, Pulaski,St. Joseph, Starke, Steuben, Warren and Whitley counties. Ballots were sent to attorneys eligible to vote in District 3. The Clerk of the Appellate Courts collected the ballots and certified Feighner garnered 608 votes, John E. Hughesgarnered 566 votes, and Jay A. Rigdon garnered 142 votes.

Feighner is a past managing partner of Haller & Colvin, P.C. He is a resi-dent of Fort Wayne, where he served as an assistant Allen County attorney, representing several county departments in state and federal courts. He graduat-ed from Brown University, Culver Military Academy and cum laude fromIndiana University McKinney School of Law. Feighner has served as presidentof the Indiana Trial Lawyers Association.

The Commission is made up of seven members – three are appointed bythe governor, and attorneys elect three. Chief Justice Loretta H. Rush chairs the Commission. The three current appointed members are David Tinkey, Tom Rose and Jean Northenor. The attorney members are Feighner, StephenWilliams and Lee Christie.

The Indiana Judicial Nominating Commission is established by the IndianaConstitution and staffed by the Division of State Court Administration. TheCommission recruits and interviews applicants to fill vacancies on the appellatecourts. Then, the Commission submits candidates to the governor for appoint-ment. Additionally, the Commission selects the Chief Justice of Indiana and certifies former Indiana judges as senior judges to serve in Indiana’s courts. �

7. Uniform Law Commission, http://tinyurl.com/ULC-new-project-proposals (last visited Jan. 6,2015).

8. American Law Institute, http://tinyurl.com/ALI-pubs-Model-Penal-Code (last visited Jan. 6, 2015).

9. 26 Ind. Law Encyc. Statutes §69; see, e.g.,Edwards v. State, 952 N.E.2d 862, 868 (Ind. Ct. App. 2011).

10. See In re Lawrance, 579 N.E.2d 32, 38 (Ind.1991) (citing to the prefatory note and com-ments in construing Indiana’s enactment of the Model Health-Care Consent Act).

11. Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009) (interpreting Indiana’s enactmentof the Uniform Interstate Family Support Act);see also Havens v. Portfolio Inv. Exch. Inc., 983F. Supp. 2d 1007, 1011 (N.D. Ind. 2013) (not-ing that “Indiana law is quite clear” regardingthe persuasive value of uniform act commen-tary when interpreting an Indiana statutederived from a uniform act).

12. Basileh, 912 N.E.2d at 821.

13. See Uniform Law Commission, http://www.uniformlaws.org/Acts.aspx (last visited Jan. 6,2015). The website generally provides two versions of each uniform act: one in portabledocument format with prefatory material andcommentary and one in word processing for-mat without commentary. See, e.g., UniformPremarital and Marital Agreements Act, available at http://tinyurl.com/Uniform-Premarital-and-Marital (last visited Jan. 6,2015).

14. SeeHelene S. Shapo et al., Writing and Analysisin the Law 21-22 (6th ed. 2013) (listing poten-tially relevant characteristics, including theyear of decision, the identity of the authoringjudge, and the unanimity of the decision).

15. Ind. Code §24-2-3-1(1)(b).

16. Amoco Prod. Co. v. Laird, 622 N.E.2d 912, 917 (Ind. 1993).

17. Id. at 918.

18. See, e.g., In re Lemond, 395 N.E.2d 1287, 1290(Ind. Ct. App. 1979) (interpreting the UniformChild Custody Jurisdiction Law: “Since we arepresented with an issue of first impressionconcerning a uniform act, we look for guid-ance to decisions of other states.”); N. Ind.Commuter Transp. Dist. v. Chicago Southshore& South Bend R.R., 685 N.E.2d 680, 695 n.18(Ind. 1997) (referencing out-of-state case lawin interpreting the Uniform Arbitration Act).

19. See, e.g., Unclaimed Property Act, http://tinyurl.com/ULC-Unclaimed-Property-Act(last visited Jan. 6, 2015).

WORDWISEcontinued from page 29


RG 01-02.15_RG 09.05 2/6/15 11:26 AM

In September, the IndianaSupreme Court issued opinionsin seven civil cases, summa-

rized below, and did not granttransfer in any civil cases. TheIndiana Court of Appeals issued a total of 63 opinions in civil andadministrative matters, 32 of whichwere published decisions. Three of the Court of Appeals’ publisheddecisions are summarized below.Full text of all Indiana appellatecourt decisions rendered during the month of September, includingthose issued not-for-publication,are available via Casemaker atwww.inbar.org or the IndianaCourts website, www.in.gov/judiciary/opinions.

IDEM’s exclusion of ethanolplants from definition of ‘chemical process plants’ is reasonable

In Natural Resources DefenseCouncil v. POET Biorefining - NorthManchester, LLC, 15 N.E.3d 555(Ind. 2014) (David, J.) the Courtanalyzed IDEM’s interpretation of Indiana’s State ImplementationPlans (SIPs) as excluding ethanolplants from the definition of“chemical process plants,” whichdetermines whether such plants are subject to emissions regulationas “major stationary sources.”

Indiana’s SIP largely resemblesthe Clean Air Act with respect toPrevention of Significant Deteriora-tion (“PSD”) regulations. TheClean Air Act does not define a“chemical process plant.” Prior to 2007, the EPA had interpretedthe term to include ethanol plants.However, on May 1, 2007, the EPAissued a final rule expressly exclud-ing fuel ethanol process plants fromthe term “chemical process plant”(the “Ethanol Rule”). Before the EPA issued its Ethanol Rule,Indiana had also interpreted“chemical process plants” toinclude fuel ethanol plants,

but after the Ethanol Rule, IDEMfollowed EPA’s new interpretation.In 2011, the General Assemblypassed a law specifically providingthat fuel ethanol plants were not“chemical process plants” underIndiana’s SIP. IDEM thereafterissued a nonrule policy documentreferencing the EPA’s Ethanol Ruleand stating that it would excludeethanol plants from the definitionof “chemical process plants.”Indiana’s SIP has not been amended to reflect this policy.

The appeal involved five fuelethanol facilities that emit morethan 100 but less than 250 tons peryear of an air pollutant and aroseout of various consolidated proce-dural circumstances. The SupremeCourt deemed the appeal to presenttwo primary questions: (1) didIDEM need to amend Indiana’s SIP to change its interpretation ofthe term “chemical process plant”;and (2) if not, is IDEM’s interpreta-tion excluding fuel ethanol plantsfrom the definition of a “chemicalprocess plant” correct? If the term“chemical process plant” underIndiana’s SIP includes a fuelethanol plant, then the five ethanolplants at issue constitute major stationary sources and are subjectto stricter PSD regulation.Otherwise, they are not.

The Court first held that IDEMis not required to revise its SIP to change its classification of fuelethanol plants because there is norelevant definition to revise. Noprovision in the SIP defines a fuelethanol plant as a chemical processplant. The Court further held that whether or not the StandardIndustrial Classification Manual(“SIC Manual”) defined an ethanolplant as a chemical process plant,that definition was not incorporat-ed into the SIP’s definition of amajor stationary source or chemicalprocess plant. IDEM was therefore

REC

ENT D

ECISIO

NS 9/14

Appellate civil case law updateBy Jane Dall Wilson and Donald E. Morgan


not required to formally amend the SIP to change its interpretation.

The Court next consideredwhether IDEM’s new interpretationof chemical process plants asexcluding fuel ethanol plants wasreasonable. The Court noted itsobligation to give weight to theinterpretation by the relevantagency and to give words andphrases their plain and ordinarymeaning within the context of theintent of the agency that promul-gated the regulations. It determinedthat a strict interpretation of thephrase to capture any facility usingchemical processes to producechemical products was not neces-sary. The Court was also guided by the EPA’s Ethanol Rule, whichsuggests that the term “chemicalprocess plant” is not subject to a plain language interpretation.Challenger NRDC also did notexplain why fuel-gradeethanol plants wouldqualify as “chemicalprocess plants” but facili-ties producing ethanol for human consumptionwould not. The Courtultimately concluded thatIDEM was entitled to fol-low the EPA’s guidanceand that IDEM’s exclu-sion of fuel ethanol plantsfrom stricter regulation as“chemical process plants”was reasonable.

Trustee who failed to stay order dissolvingtrust lacked standing to pursue appeal

Old National Bancorpd/b/a Old National TrustCo. v. Hanover College, 15 N.E.3d 574 (Ind. 2014)(David, J.), concerns thestatus of a trustee afterdissolution of a trust.


Jane Dall WilsonFaegre Baker Daniels LLPIndianapolis, [email protected]

Donald E. MorganFaegre Baker Daniels LLPIndianapolis, [email protected]

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Hanover College was the beneficia-ry of two trusts in which OldNational Bancorp served as trustee.Hanover petitioned the RandolphCircuit Court to terminate thetrusts and to allow Hanover to hold the funds as part of Hanover’sendowment on the ground thatmaintaining the trusts separatelywas wasteful, provided lowerreturns, and impaired the trusts’administration. After an evidentiaryhearing, the trial court ordered the trusts dissolved and the assetsdistributed to Hanover.

Old National appealed the trialcourt’s dissolution orders but didnot seek a stay. On appeal, OldNational argued that dissolution of the trusts was not warranted.Hanover responded but also movedto dismiss the appeal on the groundthat Old National had not sought astay and had transferred the trusts’assets; therefore, Old Nationallacked standing to pursue anappeal, and the issues on appealwere moot. In response, OldNational contended that it was an“aggrieved person” and was appeal-ing in its individual capacity ratherthan its representative capacity as former trustee. The Court ofAppeals dismissed Old National’sappeal on the ground that OldNational lacked standing in its rep-resentative capacity because it failedto obtain a stay and was no longerthe trustee, and it could not appealin its individual capacity because itdid not intervene below. On trans-fer, the Supreme Court agreed thatOld National lacked standing anddismissed the appeal.

The Supreme Court noted thegeneral rule that powers of a trusteecease when a trust is dissolved orterminated. To prevent this effect, a fiduciary may seek a stay. But OldNational did not do so. When Han-over questioned its standing to pur-sue the appeal, Old National arguedthat it was not appealing in its

representative capacity as formertrustee but rather in its individualcapacity. The Supreme Court notedthat the record did not bear out OldNational’s position. Old Nationaldid not intervene or appear belowin its individual capacity. Its meritsbriefs contained multiple referencesto its position as trustee and arguedthat the trial court had erred in ter-minating the trusts, using the samearguments made in the trial courtin its role as trustee. Old Nationalalso paid its appellate fees fromtrust assets. For these reasons, the Court declined to consider Old National as appealing in anycapacity other than as trustee.

Because Old National lackedstanding to appeal as trustee due to the termination of the trusts, theSupreme Court held that it lackedjurisdiction to hear the appeal. It left unanswered the questions (1) whether Indiana Code §30-4-6-11(a) permits an appeal of thetermination of a trust by a personwho is not a party to the trust pro-ceeding and (2) whether IndianaAppellate Rule 17(A) implies thatall such “aggrieved persons” mustintervene in the trial court beforeappealing.

Minority shareholders not entitled to privileged portions of special litigationcommittee report

Sibling minority shareholdersinitiated a derivative suit. Theboard of directors formed a speciallitigation committee (“SLC”) pur-suant to Indiana Code §23-1-32-4to investigate the claims. Followingthe report, the board moved to dismiss certain derivative claims,attaching a version of the SLCreport that redacted 120 of 140pages on grounds of attorney-clientprivilege and attorney work prod-uct. The sibling shareholders filed a motion to compel disclosure ofthe report. The trial court granted

the motion, and the Court ofAppeals affirmed on interlocutoryappeal. After oral argument, theSupreme Court granted transfer.

In TP Orthodontics, Inc. v.Kesling, 15 N.E.3d 985 (Ind. 2014)(David, J.), the Court considered“two compelling but competinginterests”: (1) the minority share-holders’ desire to access the fullreport to challenge the conclusionsof the SLC, and (2) the company’sinterest in protecting privilegedattorney-client communicationsand attorney work product withinthe SLC report. The Court began bynoting Indiana’s codified businessjudgment rule, which the SLCprocess reflects. Under IndianaCode §23-1-32-4, a board of direc-tors may establish an SLC consist-ing of three or more disinteresteddirectors or other persons to deter-mine whether to pursue derivativelitigation. The SLC’s conclusion isdeemed conclusive unless a share-holder can demonstrate that (1) thecommittee was not “disinterested”or (2) the committee did not inves-tigate in good faith. Ind. Code §23-1-32-4(c). The Court determinedthat a corporation must discloseboth the methodology and the substance of the SLC’s investigationto permit minority shareholders to evaluate whether the SLC investigated in good faith.

Next the Court analyzed theprivileged and protected nature ofthe SLC report. The Court deter-mined that there was a broad butnot blanket assertion of privilege.The corporation met its burden ofshowing that the SLC report con-tained both attorney-client com-munications and attorney workproduct. And the corporation didnot put the privileged portions ofthe report at issue by filing themotion to dismiss.

Ultimately, the Court deter-mined that the case presented a dis-covery dispute. To ensure the con-

RECENT DECISIONS 9/14 continued from page 31


RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Rule of Civil Procedure 56” but, nonetheless, reiterated thatIndiana’s summary judgmentprocess requires a different show-ing. While the federal rule requiresa movant to show that the partywith the burden lacks evidence to support a necessary element of a claim, in Indiana, the movantmust “affirmatively ‘negate anopponent’s claim.’” (quoting Jarboev. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994). The Court acknowl-edged some criticism of this height-ened standard but emphasized that“Indiana consciously errs on theside of letting marginal cases pro-ceed to trial on the merits, ratherthan risk short-circuiting meritori-ous claims.”

In light of this more “onerousburden” on the moving party, theCourt determined that the defen-dant’s “perfunctory and self-serv-ing” affidavit was sufficient to cre-ate an issue of fact requiring trial.Although compelling, the State’scircumstantial evidence that thecash constituted drug dealing pro-ceeds conflicted with the defen-dant’s direct evidence by swornaffidavit testimony that it did not.While the defendant’s evidencemay not be persuasive – because it lacked any explanation or detail –it was sufficient to defeat summaryjudgment. Indiana’s standard didnot permit the trial court to weighthe evidence at the summary judg-ment stage.

Agreed spousal maintenancecannot be modified unlessterms of the agreement say so

In the absence of an agree-ment, Indiana courts may orderspousal maintenance only in threelimited circumstances set forth inIndiana Code §31-15-7-2. Suchmaintenance awards are modifiableupon a proper showing under §31-15-7-3. In Pohl v. Pohl, 15 N.E.3d

1006 (Ind. 2014) (Rush, C.J.), theSupreme Court addressed a ques-tion it left open in Voigt v. Voigt,670 N.E.2d 1271 (Ind. 1996) –whether a court may modify a spousal maintenance obligationthat arises from a settlement agree-ment but rests on grounds thatwould have permitted the court to enter an identical award under§31-15-7-2 in the absence of theagreement.

The parties in Pohl agreed thatWife would pay Husband monthlyspousal maintenance beginningapproximately four years after the date of their agreement. Overthree years later, but before the first maintenance payment was due,Wife petitioned the court to modifyher obligation. Wife cited changesin Husband’s circumstances,including the quadrupling of hisSSDI income and his move into ahome with his fiancée, who earneda six-figure salary and paid themortgage for the couple’s home.The trial court concluded the agree-ment was not intended to be modi-fiable and held that Wife failed to show fraud, duress or mistake. The Court of Appeals affirmed.

On transfer, a unanimousSupreme Court acknowledged thatit faced two unsatisfactory choices.On the one hand, freedom of con-tract principles suggest settlementagreements should be enforced as written, as judges cannot knowwith any confidence “what gottraded for what” during settlementnegotiations. Hence, a subsequentmodification risks upsetting thedelicate balance and finality memo-rialized in a settlement agreement.But presuming agreements to benon-modifiable unless they specifyotherwise may deprive relief even in the face of the types of unfore-seen changes justifying modifica-tion of statutory maintenanceawards under §31-15-7-3.


tinued use of SLCs in derivative liti-gation, the Court declined to grantthe minority shareholders’ requestfor full access to the SLC report.Instead, the Court remanded to thetrial court, instructing the corpora-tion specifically to identify attor-ney-client communications andattorney work product and direct-ing the trial court to conduct an in camera review of the specificallyidentified portions. Absent claimsof privilege or work product, theCourt determined that SLC reportsshould be disclosed in other cases.

Indiana’s heightened summary judgment standardunanimously reaffirmed

In a civil forfeiture case, theIndiana Supreme Court reflectedthat Indiana’s summary judgmentstandard sets a “relatively high bar” and aims “to protect a party’sday in court.” In Hughley v. State,15 N.E.3d 1000 (Ind. 2014) (Rush,C.J.), the State discovered $3,871 in cash, mostly in $20 bills, in thedefendant’s front pocket at the timeof his arrest for drug dealing andlater sought forfeiture of that cashand the defendant’s car. The Statemoved for summary judgment,designating the probable cause affidavits and the defendant’s judgment of conviction for cocainedealing. The defendant opposed themotion with an affidavit in whichhe summarily denied that the cashand car were connected to criminalactivity. The trial court grantedsummary judgment to the State as to the cash but not as to the car. The Court of Appeals affirmed,holding that the affidavit offerednothing more than a general denialthat could not withstand summaryjudgment. The Supreme Courtreversed with instructions to denythe State’s motion.

The Court acknowledged thatthe language of “Indiana Trial Rule56 is nearly identical to Federal (continued on page 34)

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Calling it the better of twounsatisfactory choices, the SupremeCourt held that – even when statu-tory maintenance (which is modifi-able) could have been ordered inthe absence of an agreement – prin-ciples of contract finality precludemodification of agreed spousalmaintenance unless the agreementis modifiable by its own terms.With respect to the agreement atissue, the Court held that languageindicating that payments shouldcontinue “until further order of thecourt or agreement of the parties”rendered the agreement modifiableby its own terms. The Court there-fore reversed and remanded to thetrial court with instructions to con-sider whether the evidence estab-lished a substantial and continuingchange in circumstances justifyingmodification under §35-15-7-3.

Untimely filing of notice of appeal is not jurisdictionalbar precluding appellate review

In re Adoption of O.R. abrogat-ed the Supreme Court’s long-heldposition that timely filing of anotice of appeal is a jurisdictionalprerequisite to appellate review. 16 N.E.3d 965 (Ind. 2014) (Rucker,J.). Rather than a jurisdictional bar, failure to file a timely notice of appeal is a forfeiture of a party’sright to appeal – a right that may berestored only for “extraordinarilycompelling reasons.”

This appeal followed a success-ful petition to adopt O.R. over herbiological father’s objection. Fourdays before the deadline for filing a notice of appeal, the biologicalfather submitted a letter to the trialcourt clerk, requesting appoint-ment of appellate counsel “for thepurpose of appealing the decisionrendered.” The trial court appoint-ed appellate counsel, but not untilthe deadline for filing a notice ofappeal had passed. Fifteen daysafter appointment, the appellate

counsel filed an amended notice ofappeal, contending that the biologi-cal father’s pro se letter should bedeemed a timely notice of appeal in substantial compliance with the appellate rules. Although themotions panel of the Court ofAppeals accepted the amendednotice of appeal, the writing paneldismissed the appeal sua sponteafter briefing on the merits closed.The writing panel concluded thatthe Court of Appeals lacked subjectmatter jurisdiction because the bio-logical father failed to file a timelynotice of appeal.

On transfer, a unanimousSupreme Court held that anuntimely notice of appeal forfeits aparty’s right to appeal but does notimplicate the appellate court’s juris-dictional authority to hear the case.Although its prior cases have treat-ed the notice of appeal as a jurisdic-tional matter, the Court cited sever-al reasons supporting a change ofcourse. First, the notice of appealrequirement in Rule 9(A) of theIndiana Rules of Appellate Proce-dure speaks of forfeiture, not juris-diction. Forfeiture refers to therights and obligations of parties,not the powers of a court. Second,the Court was mindful that proce-dural rules like Rule 9(A) are meansfor achieving orderly and speedyjustice, not ends unto themselves.And third, Rule 1 of the IndianaRules of Appellate Procedureincludes a mechanism for resur-recting an otherwise forfeitedappeal, providing that appellatecourts may permit deviation fromthe appellate rules.

The Court further held thatsuch a deviation from the rules maybe permitted in the narrow contextwhere “extraordinarily compellingreasons” suggest the forfeited right to appeal should be restored. The Court concluded that such reasons were present in Adoption of O.R. The biological father timely

submitted a pro se letter, seekingappointment of appellate counselfor purposes of appealing the trialcourt’s decision. And while the trialcourt eventually appointed appel-late counsel, that appointmentcame after the deadline for filing aformal notice of appeal. Moreover,this case presented a “unique con-fluence” of one of the most valuedrelationships in our culture – thatbetween parent and child – and aparent’s fundamental liberty inter-est in the care, custody and controlof his or her children. In light of these unique circumstances, the Court restored the biologicalfather’s otherwise forfeited right of appeal.

Turning to the merits, theSupreme Court affirmed the trialcourt under the deferential clearerror standard of review. The Courtheld that the biological father’sconsent was not required underIndiana Code §31-19-9-8(a)(2)(A)because the record included clearand convincing evidence that hefailed without justifiable cause tocommunicate significantly withO.R. for a period of at least oneyear despite being able to do so.Further, the record supported thetrial court’s conclusion that theadoption was in O.R.’s best inter-ests, largely in light of evidence thatO.R. had lived with the adoptiveparents for six years and becauseshe had no existing relationshipwith her biological father.

The Supreme Court providesguidance to Indiana courtsfaced with abusive, vexatiouslitigation practices

In an extraordinary opinion,the Supreme Court unanimouslydenied a “prolific, abusive” liti-gant’s petition for transfer andpenned a robust review of the toolsavailable to Indiana courts facedwith abusive litigation tactics.Zavodnik v. Harper, 17 N.E.3d 259



RG 01-02.15_RG 09.05 2/6/15 11:26 AM

(Ind. 2014) (per curiam). Since2008, Gersh Zavodnik filed at least120 cases appearing in the Odysseycase management system. He is aparty to dozens of appeals beforethe Indiana Supreme Court andCourt of Appeals. The Courtdescribed Zavodnik’s filings in thematter pending transfer as having“bewilderingly lengthy titles” andgenerally demonstrating no desireto litigate his case to an expeditiousresolution on the merits. Rather,Zavodnik burdened his opponentand the court with “massive, confusing, disorganized, defective,repetitive, and often meritless filings.”

As “a matter of grace,” theCourt did not sanction Zavodnik.But it provided guidance to Indianacourts regarding options for sanc-tioning and otherwise restrictingabusive and burdensome litigationtactics. Those options include:

• monetary sanctions under Indiana Code §34-52-1-1(b);

• authority to screen criminaloffenders’ frivolous claims under §34-58-1-2;

• “three strikes” limitations oncomplaints and in forma pauperis peti-tions under Indiana Code §34-10-1-3;

• damages or other sanctions autho-rized in Rules 37, 56(G) and 75(C) ofthe Indiana Rules of Trial Procedureand in Rule 66(E) of the Indiana Rulesof Appellate Procedure; and

• exercise of inherent powers ofcourts, after due consideration of anabusive litigant’s entire history, to fash-ion and impose reasonable conditionsand restrictions on a litigant’s ability to commence or continue actions.

The Court also offered the following guidance regarding common abusive litigation tactics:

• Pro se litigants are held to thesame standards as trained attorneys.Moreover, because Trial Rule 11(A)and the Rules of Professional Conductdo not apply to pro se litigants, courts

must be able to fashion appropriatesanctions against abusive pro se litigants.

• The right to proceed in forma pauperis is not unfettered. A court may deny IFP status if it determines the applicant is asserting a claim that isfrivolous or upon which relief cannotbe granted, is seeking monetary relieffrom a defendant who is immune, or isattempting to re-litigate a claim barredby res judicata, collateral estoppel, orlaw of the case. Further, a court mayrevoke a litigant’s IFP status as a sanc-tion for abusive litigation tactics.

• Courts may reasonably limit abu-sive litigants’ filings by requiring thatallegations be certified under penalty ofperjury, that pleadings comply strictlywith the trial and appellate rules andfollow other procedural or formattingrequirements, and that litigants complywith limitations on length and repeti-tive motions.

• Judges should not recuse them-selves in the absence of a reasonablebasis for disqualification, and litigantswho pursue baseless, abusive attempts

to obtain a change of judge may facesanctions.

SELECTED COURT OFAPPEALS DECISIONS

City lacked standing to challenge town’s annexation

In Town of Lapel v. City ofAnderson, 17 N.E.3d 330 (Ind. Ct.App. 2014) (Baker, J.), the Court ofAppeals concluded that Andersonlacked standing to challenge Lapel’s annexation of territory thatAnderson had previously consid-ered annexing. Lapel’s annexationwas “super-voluntary,” meaningthat 100 percent of landowners inthe territory sought annexation andhad initiated the petition for annex-ation. Remonstrance is typically the only means to challenge annex-ation. Anderson conceded that itdid not meet the statutory qualifi-cations to remonstrate a super-


Over 31 years

experience

helping

Hoosier Lawyers

and their clients.

E. Victor Indiano

8310 Allison Pointe Blvd.Suite 204Indianapolis, IN 46250

P: 317.436.7402F: 317.585.8562

www.gadgetlawyers.com


RG 01-02.15_RG 09.05 2/6/15 11:26 AM

voluntary annexation. Nonetheless,it filed an action for declaratoryjudgment, challenging the legalityof Lapel’s annexation. On cross-motions for summary judgment,the trial court granted Anderson’smotion and denied Lapel’s motion.The Court of Appeals reversed.

Considering precedent, theCourt of Appeals determined that“the sole means for challenging anannexation is a statutorily-basedremonstrance.” The only times acomplainant has standing to bringa declaratory-judgment actioninvolve fraud, discrimination orwrongs so severe as to violate thecomplainant’s substantial rights.Anderson’s arguments did not meet these criteria, and it thereforelacked standing to challenge Lapel’sannexation. The court also notedthat following this litigation, theGeneral Assembly amended the rel-evant statute to give a municipalitylocated in the same county as theterritory to be annexed the right toappeal, but the effective date of thestatute meant that it did not helpAnderson in this litigation.

Issues of material fact preventedsummary judgment for land-lord on environmental claim

Indiana’s Environmental LegalActions (“ELA”) statute permits aclaimant to bring a cause of actionfor the reasonable costs of remedia-tion against “a person that causedor contributed to” a release of ahazardous substance or petroleuminto the surface, soil or groundwa-ter. In JDN Properties, LLC v.VanMeter Enterprises, Inc., 17N.E.3d 357 (Ind. Ct. App. 2014)(Barnes, J.), the Court of Appealsdetermined “that a landlord whohas knowledge that a tenant’s use of land is causing environmentalcontamination, but does nothing tohalt or remediate such contamina-tion and goes on to sell that proper-ty to a third party without disclos-

ing the property’s condition, mayfairly be said to ‘share responsibili-ty’ for or contribute to such conta-mination.” The Court of Appealsreversed the trial court’s grant ofsummary judgment in favor of theformer landlord because designatedevidence supported a finding thatthe landlord accepted rents from its former tenant, knowing that thetenant’s use was causing petroleumcontamination in the ground,before it sold the property withoutdisclosing any contamination.

Liquidated damages did not preclude injunctiverelief against doctor

In an interlocutory appeal, theIndiana Court of Appeals reversedand remanded a trial court’s denialof a preliminary injunction toenjoin a family doctor in Rensselaerfrom violating noncompete, nonso-licitation and nondisparagementprovisions in his employmentagreement.

In Pinnacle Healthcare, LLC v.Sheets, 17 N.E.3d 947 (Ind. Ct. App.2014) (Najam, J.), the doctor soldhis practice and became an employ-ee of Pinnacle Healthcare, LLC(“the Practice”) under an agree-ment that included noncompete,nonsolicitation and nondisparage-ment provisions. The doctoralleged that the Practice breachedits agreement to pay and filed atemporary restraining order and a preliminary injunction to preventthe Practice from enforcing thenoncompete, nondisparagementand nonsolicitation provisions.After a hearing on the doctor’srequest for a preliminary injunc-tion, the Practice allegedly learnedthat the doctor was practicing med-icine in violation of those provi-sions and filed its own motion for a preliminary injunction, which the trial court denied. This inter-locutory appeal followed.

To obtain a preliminaryinjunction, the Practice wasrequired to show that (1) its reme-dies at law were inadequate, (2) ithad at least a reasonable likelihoodof success at trial by establishing aprima facie case; (3) the threatenedinjury to the Practice outweighedthe potential harm to the doctorthat would result from the grantingof an injunction; and (4) the publicinterest would not be disserved by the granting of a preliminaryinjunction. With respect to the adequacy of remedies at law, theCourt of Appeals held that the presence of a liquidated damagesclause in the employment agree-ment did not prevent the Practicefrom pursuing both liquidateddamages for breach and injunctiverelief under the employment agreement. The existence of a legalremedy in the contract was not anadmission of the adequacy of a legalremedy. The Court of Appeals heldthat the trial court clearly erred in evaluating the Practice’s motionas to the other factors as well, and it reversed and remanded for ahearing on the Practice’s motionand a judgment not inconsistentwith the opinion. �Jane Dall Wilson is a business litigationpartner at Faegre Baker Daniels LLP,where she practices appellate advocacyand litigates complex contract matters.Jane is a summa cum laude graduate ofHanover College and Notre Dame LawSchool. Following law school, she clerkedfor the Hon. Kenneth F. Ripple, 7th U.S.Circuit Court of Appeals, and joined the firm thereafter.

Donald E. Morgan is a business litigationassociate at Faegre Baker Daniels LLP,where he focuses his practice on civil liti-gation and appellate advocacy and repre-sentation of corporate victims of crime.He is a graduate of Indiana Universitywith highest distinction and an Order ofthe Coif graduate of UC Berkeley’s BoaltHall School of Law. During law school,Donnie served as a judicial extern for the9th U.S. Circuit Court of Appeals andlater for the U.S. District Court for theNorthern District of California.



RG 01-02.15_RG 09.05 2/6/15 11:26 AM

KEEP CALMAND

LAWYER ON

FRENCH LICK RESORTJUNE 4-6, 2015

INDIANA STATE BAR ASSOCIATION SOLO & SMALL FIRM CONFERENCE

We’ve been year-roundbike commuting on amostly full-time basis

for a number of years. We eachcommute about 12 miles round tripon city streets, coming from differ-ent directions to downtownIndianapolis.

Lundberg has the good fortuneto have inside bike storage and a shower and place to store workattire at the office. Dreyer has theequally good fortune of having thegreat Indy Bike Hub right acrossthe street from the City-CountyBuilding where he can shower and store his bike inside.

The delta between biking anddriving from our respective homesto sitting at our desks is about fiveminutes. So we get 50 minutes or so of solid exercise every day at a net time cost of 10 minutes. What a deal!

It’s good for your body

Biking is good exercise. It ismuch easier on your joints thanrunning. You can easily calibrateyour effort to how energetic (ornot) you are feeling. We calculatethat we burn about 43 calories permile cycling at a moderate pace.That’s 516 calories every day and more when we ride harder.

Lawyers and judges are seden-tary workers. We can’t avoid it inour line of work. But we exacerbatethe situation when we put in evenmore butt time driving back andforth between home and work.

Biking is re-creation in the true sense of doing something completely different from what we do at work. Biking to go wherewe need to go anyway gives us apremium of much-needed physicalactivity.

It’s good for your mind

The health benefits of bikingcan be more mental than physical.Commuting by bike is a greatbuffer between professional andpersonal life. It allows for shiftingmental gears as the derailleurchanges gears on the bike. Going home, the stress of the daysubsides with every turn of the pedals. Biking to work gives us a jump start on the day ahead by easing into what’s in store.

Driving in the car usuallyinvolves distractions of one kind oranother – maybe it’s the car radioor the irritation of being stuck intraffic. Traffic jams are rarely a hin-drance to a bicyclist. We don’t bikewith anything in our ears (not safe,in our opinion), so we get to bealone with our thoughts. It’s amaz-ing how the creative ideas flowwhen traveling by bike. (Okay,some pretty crazy ideas pop outtoo, but they can be easily discardedlater.) Dreyer claims to have ren-dered many legal opinions whilecoasting with no hands.

Plus, biking is just plain fun.It’s hard to get on a bike withoutflashing back to being a kid andrealizing that a bicycle opened upwhole new vistas that were unat-tainable on two legs. That probablyaccounts for the goofy grin youmight see on our faces as we bike toand from work. Despite moisture,even ice and the evil wind (always

FIT TO

PRACTICE

The way we roll: commuting by bikeBy Judge David J. Dreyer and Donald R. Lundberg


Critical Thinkers!

Your donations brought the We The People program to 6,000Hoosier boys and girls. You can help more students become

critical thinkers with a donation to civic education.To donate: www.inbf.org615 N. Alabama St. #122

Indianapolis, IN 46204All donations tax deductibleTo volunteer: [email protected]

NED P. MASBAUM, M.D.Board Certified Forensic Psychiatrist

Website: www.FORNPSYCH.com

• CONSULTATION

• EVALUATION

• EXPERT WITNESS TESTIMONY

• RECORD REVIEW

• CIVIL

• CRIMINAL

• WORLDWIDE AVAILABILITY

24-hour voicemail and paging(317) 846-7727 • Toll free (888) 203-7746

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

seems to be a headwind), there is a solid gratification in leaving one’shouse or office on a conveyance wehave been using since childhood.

Be careful out there

Our experience has been thatbiking is a safe way to commute.Sure, we’ve had close calls (as weassume you have had in your cars)and a few “altercations,” but noth-ing to deter us. We have each hadan experience where failing to weara helmet would probably haveresulted in a serious head injury orworse. Wear a helmet. Period. Notwearing a helmet could kill you;wearing a helmet won’t kill you.

If you are going to be riding inanything other than full daylightconditions, you need lights – reallights, powerful lights. Bicycle light-ing technology has advanced byleaps and bounds in recent years.

next to parked cars. A car doorcould swing open without warning,and you could win the proverbial“door prize” and a serious injury toboot. Cars making a right turn areanother dangerous situation whereyou need to be alert against an inat-tentive driver turning into you ifyou are to the driver’s right.

Pick your route carefully, andavoid routes that present dangers to bikes. Is there an off-street bike route like the Monon Trail in Indianapolis? Perfect! If not, is there a street with a marked bike lane? Our experience has beenthat the conflict between cars andcyclists is mostly territorial. It isamazing what a silly little white lineon the pavement does to defusethat tension. It tells drivers, “This is not your space.” Consider usingside streets instead of arterials.


Judge David J. Dreyer, Marion Superior Court, and Donald R. Lundberg, Barnes & Thornburg LLP

Good lights are worth the expense.Lundberg uses front & back lightson his bicycle and front & backlights on his helmet. Dreyer has two back flashers (helmet and back-pack) and one bright-white blinkeron his front handlebars. Don’t takethe reflectors off your bike. Theyare very effective in the beam of a car’s headlights.

Ride as if all drivers, includingbus drivers, want to run you over.In the car-bike interface, the bikeand its rider lose every time.Lundberg wears a mirror on theside of his helmet that lets him seewhat is coming up from behind.Dreyer has a handlebar mirror thathe will not live without. Take careat cross streets. If there is a car atthe intersection or a car turning leftin front of you, look for eye contactfrom the driver. That’s a sign thedriver sees you. Be careful riding (continued on page 40)

Photo by

Vincent M

orretin

o

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

It’s not just about getting frompoint A to point B as quickly aspossible. It’s also about enjoyingthe trip and arriving intact. Ridingon neighborhood side streets ispleasant, and after you’ve done itfor a while you’ll get to know theregulars along your route and can exchange a friendly wave.

Getting started

Commuting by bike can be alittle daunting. Get a bike you arecomfortable with, and make sure itis well maintained. It doesn’t haveto be fancy or expensive. Skinny-tire road bikes are not a goodchoice for commuting. Wider,lower-pressure tires make for amore comfortable ride with fewerflats. Consider a bike with fenders.They do wonders in an unexpectedrain shower. Learn how to fix a flat,and carry what you need to do therepair. Oh, yeah, and do us a per-sonal favor – lubricate your chain.To us, the sound of a squeaky bikechain is like fingernails on a chalk-board.

Ease into it. Learn how to han-dle your bike well. Gain confidenceand competence before hitting thegritty urban streets. Ride in yourneighborhood and on off-streettrails before venturing out intorisky traffic situations. Ride conser-vatively and defensively. It’s moreabout safety than speed. Preview asafe route in your car. Take specialnote of the risky spots so that you’llknow where to be especially carefulwhen you’re biking. Then pick abeautiful day for a trial run. Maybeon a Saturday or Sunday. Then it’stime to try it on a weekday. Once a month or once a week is fine.Does it suit you? Increase your frequency. If the distance betweenhome and work is too long for a reasonable commute, consider

driving part way (especially thenon-bike friendly part) with yourbike on a rack, then park your carand bike the rest of the way.

When it starts getting cold inthe fall, you can shut it down untilspring unless you’re a crazy personand decide to keep riding. The twoof us have a friendly cold-weathercompetition. Dreyer put Lundbergto shame this past winter by ridingat -5 degrees. Lundberg’s lowestwas a balmy +6. Don’t you think ajudge, of all people, would havebetter sense? If you are going to jointhis club of crazy people, be verycareful in slippery conditions orbetter yet, don’t ride. In all but thecoldest weather, you might findthat you have overdressed for thecold. The exertion of riding gener-ates a lot of heat. As far as handwarmth, look into thermal prod-ucts that provide hand coverings onthe handlebars.

Figure out what you will dowhen you get to the office. If yourcommute is fairly short, just ride atan easy pace in your work clothes.You can pretend you are inCopenhagen or Amsterdam. If youhave further to travel or want toride fast, you’ll need to figure outhow to freshen up when you get towork. If your office doesn’t have ashower facility, consider a nearby Yor health club. More and more ofthem are offering commuter mem-berships. Find a secure place to lockyour bike. Get a good lock, and ide-ally, find an indoor location whereyou can store it. You also need awork-clothes strategy. Is there spacefor them at work? Maybe you’llneed to carry them on your bike.There are many elegant solutionsfor transporting clothes by bikethese days. Dreyer carries workclothes every day in a great back-pack that he found online. There’sno magic solution. You just need

FIT TO PRACTICE continued from page 39


to think about it and work some-thing out.

See you on the streets

Commuting by bike is not for everyone – especially full-timeand year-round like some crazypeople we know. But occasionallyand in good weather – nothingcould be finer! C’mon in –the biking’s great!�

Business supplies for a productive, efficient office

The State Bar has partneredwith Office360, one of the

largest, fastest-growing, inde-pendently owned office prod-ucts suppliers in the country.Not only does Office360 providecompetitive pricing on top sup-plies, but it also offers free, next-day delivery with no minimumorder requirement – anywherein the continental United States!

Many central Indiana lawfirms already enjoy Office360’shigh-quality service and appreciate the personal touchOffice360 brings. Services suchas delivery of copy paper to spe-cific office locations, customizedwebsite ordering systems, finan-cial reporting and more areavailable to better manage afirm’s overall supply spend.Products offered include tradi-tional office supplies, ink &toner, cleaning & breakroomsupplies, and office furniture.

Office360 is proud to part-ner with such firms as BoseMcKinney & Evans, ScopelitisGarvin Light Hanson & Feary,Cohen & Malad, Campbell Kyle& Proffitt, and many more.

Visit tinyurl.com/Office360-login (user ID: ISBA; password: REG22555) and start saving today! �

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

During October the IndianaSupreme Court issued fouropinions in criminal cases,

and the Court of Appeals decidedcases involving an ineffective assis-tance claim for failing to challengesentencing limitations for crimes in a single criminal episode, belatedpost-conviction relief appeals, andthe mootness of appealing the revo-cation of a community correctionplacement after the sentence hadexpired.

Warrantless entry of a home ‘in pursuit of an aggressive and bloody dog’

In Carpenter v. State, 18 N.E.3d998, 1000 (Ind. 2014), the IndianaSupreme Court considered whetherpolice could enter a home with-out a warrant while pursuing “an aggressive and bloody dog.”Although the defendant challengedthe search under both the FourthAmendment and Article 1, Section11 of the Indiana Constitution, the Court decided the case underSection 11, which provides greaterprotection and focuses on whetherpolice conduct “was reasonableunder the totality of the circum-stances.” Id. at 1002.

Applying the three Litchfieldfactors, the Court found a violationof Section 11. First, the State con-ceded the officers’ entry was notbased on any concern or knowledgeof illegal activity in the home; they entered to secure the dog anddetermine whether any humanneeded help. Id. Second, the degreeof intrusion was high because ahome is entitled to “the highestprotection.” Id. Although the slid-ing door was open, presumably to allow the dogs access on a hotday, “the fence and padlocked gate served to secure the propertyagainst all other entrants.” Id.Finally, the needs of law enforce-ment were not great. Unlike casesinvolving people in dangerous

situations, the officers had no rea-son to believe a person was in dan-ger when no one answered the doorand a neighbor told the officers the homeowner was at work. Id. at 1003. Moreover, police hadthe homeowner’s phone number“and calling him or his employer to ensure that no one was in theresidence would not have beenoverly burdensome.” Id.

‘Exhaustion rule’ for peremptory challenges

Litigants may seek appellatereview of for-cause challenges toprospective jurors only after theyhave exhausted their allocatedperemptory challenge underIndiana’s “exhaustion rule.” Oswaltv. State, 19 N.E.3d 241, 244 (Ind.2014). As a matter of first impres-sion, the Indiana Supreme Courtheld that “parties satisfy theexhaustion rule the moment theyuse their final peremptory challenge– regardless of whom they strike.”Id. Thus, “if parties fully complywith the exhaustion rule anddemonstrate they were unable to remove any prospective juror for lack of peremptories, appellatecourts may review denial of anymotion to strike for cause, regard-less of whether a challenged juroractually served on the jury.” Id.

Because the trial court waswithin its discretion to deny allthree of the defendant’s preservedfor-cause challenges, the Courtaffirmed his conviction.

Failure to argue sufficiency with ‘more specificity’ was not ineffective

After a pro se post-convictionpetitioner’s appeal was dismissed by the Court of Appeals despite his“best efforts,” the Indiana SupremeCourt granted transfer in Hollowellv. State, 19 N.E.3d 263, 265 (Ind.2014), to “do[] substantial justice.”The Court made clear at the outset

CRIM

INAL JU

STICE N

OTES 10/14

Ineffective assistance, mootness of appealing, other holdingsBy Prof. Joel M. Schumm


that the case did not implicate its“law-giving function” or involve“compelling issues of great publicinterest.” Id.

In affirming the denial of post-conviction relief, the SupremeCourt forthrightly acknowledgedthat the Court of Appeals’ directappeal opinion included a “mis-statement,” namely, that the defen-dant possessed the “buy money”the detective had used for the drugtransaction. Id. at 271. Neverthe-less, the remaining circumstantialevidence supported the conspiracy-to-deal-cocaine conviction. “Hollo-well has failed to show a reasonableprobability that but for counsel’sfailure to argue the sufficiencyclaim with more specificity theresult of Hollowell’s direct appealwould have been any different.” Id.

Although litigants care mostabout winning their case, the way inwhich a litigant loses certainly mat-ters. The Supreme Court’s 10-pageopinion surely leaves a litigant feel-ing much better about the justicesystem than a one-page order dismissing his appeal.

Clarification of jury instructiondefining ‘intentionally’

Indiana Criminal Pattern JuryInstruction 9.05 defines “intention-ally” by first citing the applicablestatute and then continues:

A person engages in con-duct intentionally if whenhe engages in the conduct,it is his conscious objec-tive to do so. If a person ischarged with intentionallycausing a result by hisconduct, it must havebeen his conscious objec-tive not only to engage inthe conduct, but also tocause the result.

The first sentencetracks the verbatim language of I.C. §35-41-2-2(a) and thus is


Joel M. SchummClinical Professor of LawIU Robert H. McKinneySchool of LawIndianapolis, [email protected]

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

“presumptively correct.” Campbellv. State, 19 N.E.3d 271, 277 (Ind.2014). But two Court of Appeals’opinions suggest disagreementabout whether the second sentenceis a correct statement of law. Id.(citing Corley v. State, 663 N.E.2d175 (Ind. Ct. App. 1996), trans.denied, and Johnson v. State, 605N.E.2d 762 (Ind. Ct. App. 1992),trans. denied).

In Campbell, the IndianaSupreme Court concluded theinstruction was a correct statementof law, but suggested the languagemight be improved:

Here, the second sentence of the con-tested instruction serves to empha-size the heavy burden placed on theState to prove that a defendant actedintentionally. And this is so becausenot only must the State prove that an accused had the “conscious objec-tive” to engage in the prohibited conduct but also that he intended to “cause the result” of his conduct.For clarity the sentence might beamended to read “[i]f a person ischarged with intentionally causing a result by his conduct, the State isrequired to prove it must have beenhis conscious objective not only toengage in the conduct but also causethe result.” Nonetheless even in itscurrent form the instruction holdsthe State to this higher burden ofproof even though the statute defin-ing intentionally does not do so inexpress terms.

Id. at 277-78 (emphasis in original).

Ineffective assistance for failingto raise ‘episode of criminalconduct’ sentencing challenge

I.C. §35-50-1-2(c) places limits on aggregate sentences fornon-violent crimes “arising out ofan episode of criminal conduct.” In Gallien v. State, 19 N.E.3d 303,309-10 (Ind. Ct. App. 2014), trans.denied, appellate counsel did notchallenge consecutive sentences fortwo burglaries of businesses withinabout an hour of each other underthis statute. The Court of Appeals

held appellate counsel was ineffec-tive because such a claim wouldhave prevailed based on “the smalldistance between the two burglar-ies, the short amount of timebetween them, and the apparentscheme that tied them together.” Id. at 310.

Judge Bradford dissented.Although acknowledging “thiscourt has issued a large number of seemingly inconsistent opinionsregarding what constitutes a singleepisode of criminal conduct, someof which would tend to indicatethat Gallien’s actions might befound to constitute a single episodeof criminal conduct on appeal,” he nevertheless concluded therewas not a reasonable probabilitythat a panel would have foundGallien’s burglaries to qualify under the statute. Id. at 312-13.

Court allows belated post-conviction relief appeal to proceed

Just three weeks after theIndiana Supreme Court held in Inre Adoption of O.R., 16 N.E.3d 965(Ind. 2014), that the failure to file a timely Notice of Appeals is notjurisdictional, the Court of Appealsapplied that precedent to a post-conviction relief case in which a pro se prisoner filed his Notice of Appeal one day late. Morales v.State, 19 N.E.3d 292 (Ind. Ct. App.2014). Although O.R. had held anappeal is forfeited absent “extraor-dinarily compelling reasons,” theCourt of Appeals elected to addressthe merits of Morales’ appeal basedon its “preference ... to address themerits of claims in final dispositionof controversies.” Id. at 296. It rea-soned that the “extraordinarilycompelling reasons” requirementshould not be determined solelyfrom the litigant’s perspective butrather the appellate court “has aninterest in judicial economy andbringing finality to proceedings bypost-conviction petitioners.” Id.

The Attorney General hassought transfer in Morales, and the State Public Defender has filedan amicus brief in support of thepetitioner.

Challenge to community corrections revocation held moot

Although the Indiana Court of Appeals leads the nation inresolving cases quickly, the appel-late process is still relatively slow.By the time the court reporter pre-pares a transcript and the partiesprepare their briefs, six months has usually passed.

Nicholas Breedlove had littlechance to appeal the revocation ofhis community corrections’ place-ment before he was released fromthe Department of Correction justone month later. Breedlove v. State,20 N.E.3d 172, 173 (Ind. Ct. App.2014). The Court of Appeals dis-missed his appeal, decided aboutsix months after his release basedon mootness, that is, “when we areunable to provide effective reliefupon an issue, the issue is deemedmoot, and we will not reverse thetrial court’s determination whereabsolutely no change in the statusquo will result.” Id. at 174.

Interestingly, the opinionincludes a citation to Jones v. State,847 N.E.2d 190, 200-01 (Ind. Ct.App. 2006), which applied the“great public interest” exception to mootness because the “questionsof whether good-time credit appliesto a sentence for criminal contemptand, further, whether a contem-nor’s sentence is reasonable areones of significant import, whichmay continue to evade review.”Even if Breedlove’s appeal was“merely review of alleged error,”Breedlove, 20 N.E.3d at 174, thaterror may well have future conse-quences to him, such as its appear-ance in a pre-sentence report orwhen discovered as part of a crimi-nal background check. �

CRIMINAL JUSTICE NOTES 10/14 continued from page 41


RG 01-02.15_RG 09.05 2/6/15 11:26 AM


CLASSIFIEDSEmail or fax your classified word ad to Susan Ferrer, [email protected] 317/266-2588. You will be billedupon publication.

ISBA members40¢ per word, $10 minimum

Nonmembers60¢ per word, $15 minimum

EmploymentOpportunities

WANTED: 3 sole practitioners interested in sharing office space inClass A Building in Carmel. All servicesprovided with an association of attor-neys with an overflow of business.Terms negotiable.Please email inquiriesto [email protected].

WANTED: Established Attorneys. 4 solo practitioners seeking additionalestablished attorneys to share officespace in a beautiful wooded location on the northeast side of Indianapolis.Referrals available. Amenities available include receptionist, unlimited local/long distance calling, multi-functioncopier/scanner, high-speed Internet,free parking and conference room.Terms negotiable. Please call JohnIttenbach at 317/842-5235 or email [email protected] for more infor-mation. Ittenbach, Johnson, Koeller &Abrams, P.A.

Employment Desired

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

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

INDIANAPOLIS IMMIGRATION attorneyseeks professional or co-counsel posi-tions with Indiana attorneys in the prac-tice of immigration law. Over 25 years’experience in immigration. Will handleadjustment of status, change of status,labor certificates and other matters.Also, will attend interviews atIndianapolis Immigration Office. Thomas R. Ruge, Lewis & Kappes,P.C., 317/639-1210, [email protected]

EMPLOYMENT LITIGATIONIndianapolis area attorney available for referrals and co-counsel affiliationson wide range of employment matters.25+ years of experience representingbusinesses and employees. Robert S.Rifkin, Maurer Rifkin & Hill, P.C.,317/844-8372.

FRED PFENNINGER, COMMERCIAL & other collections. When you need helpcollecting your judgment. On faculty for over 30 seminars on collection law.Statewide referrals, consultation and co-counsel positions. Pfenninger & Associates, 317/848-7500,[email protected]

QDRO PREPARATION by Indiana attorney. Reasonable rates, quick turn-around, assistance at any stage of thedissolution, from discovery through planand court approval. For information,email [email protected] or call 260/755-0873.

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

INSURANCE DEFENSE & coverage.AV-rated northwest Indiana insurancedefense firm with over 75 years of com-bined experience in insurance practiceis available to work with insurance companies on coverage issues and torepresent insureds in litigation through-out northern Indiana. Huelat Mack &Kreppein P.C., 450 St. John Rd., Suite204, Michigan City, IN 46360, 219/879-3253, [email protected]

Bradtke Reporting Licensed & Certified Court ReportersServing Central & Southern Indiana

BradtkeCourtReporters.comCourtReportersIndiana.com

(708) 334-3895 • (860) 3-REPORT

basis, he maintained. The talk can befound at: http://www.ted.com/talks/matt_cutts_try_something_new_for_30_days and http://tinyurl.com/try-something-new-for-30-days.

My law partner is a great example of putting theory into practice. He haspracticed law for more than 50 years.He’s had a financial advisor for years, butmore importantly he plays tennis aboutonce a week, picked up the trumpet a fewyears ago and recently took up tap danc-ing. I love hearing about a local seniorjudge’s international travels. It seems that she’s out of the country more thanshe’s in the country. Historically, peopleare concerned about being financiallyable to retire, but more and more I wonder if people are planning so thatthey are physically and mentally able to enjoy their financial retirement. If you start planning today, you’ll never have to worry about the question. �

Need to challenge or supportbilled-for legal fees and costs?

Turn to the one that insurers and attorneys throughout the U.S. turn to when fee billing disputes occur.

Legal fees and costs reviewed in all types of transactions and cases.

Former chair of the Indiana State BarAssociation Legal Ethics Committee

LEGAL FEE BILL DISPUTES

John Conlon, 317-645-0587 [email protected]

FAIR COMMENTcontinued from page 46 ISBA members:

Update your

addresses

email & postal

online at

www.inbar.org

RG 01-02.15_RG 09.05 2/6/15 11:26 AM


APPRAISALSStamp & Coin Collections

30 Years ExperienceKnight Coin & Stamp

237 Main St., Hobart, IN 46342219/942-4341• 800/634-2646

www.knightcoin.comA.N.A. Life Member No. 867

600+ appeals30+ years experience

Stone Law Office & Legal Research26 W. 8th St., P.O. Box 1322

Anderson, IN 46015

765/644-0331 800/879-6329765/644-2629 (fax)[email protected]

David W. Stone IV Cynthia A. EggertAttorney Paralegal

LOCAL COUNSEL, southwesternIndiana. Vanderburgh, Posey, Gibson,Pike, Dubois, Warrick, Spencer, Perry,Knox, Daviess. Circuit/Superior Court,Bankruptcy/District Court, Sheriff Sales,Settlement Conferences. Erin Berger,812/250-6744, [email protected]

CALIFORNIA LAWYER since 1966. AV-rated. Member, ISBA. Father andbrother practiced many years in Marion.Enjoys interacting with Indiana lawyers.Handles transactions, ancillary probatesand general and complex litigation in all California state and federal courts. Law Offices of John R. Browne III, a Professional Corporation,50 California St., Suite 3500, San Francisco, CA 94111; tel., 415/421-6700; fax, 415/398-2438;email, [email protected]; www.jbrownelaw.com

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

FLORIDA ANCILLARY PROBATE in most counties. Call collect, PaveseLaw Firm, 239/542-3148, attn: MichaelGennaro, 4635 S. Del Prado Blvd., Cape Coral, FL 33904.

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

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

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

239.254.2900 hahnlaw.com

Florida Estate Planning & Probate

BRAD A . GALBRAITH

H A H N L O E S E R & PA R K S L L P

SpecialServices

MISSING HEIRS & WITNESSES located, intestate heirs verified.Complete family lineage establish-ment. Mark E. Walker & Company,LLC – Indiana Private Investigator Firm; 800-982-6973;www.MissingHeirsLocated.com

HEALTH CARE PROVIDER licensedefense. Experienced nurse attorney is available to represent nurses, physi-cians, pharmacists, dentists, veterinari-ans and other licensed health care professionals before the various licens-ing boards or to respond to an attorney general’s office license investigation.Lorie A. Brown, RN, MN, JD,[email protected], 317/465-1065.

Miscellaneous

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

OFFICE BUILDING FOR SALE: 3,400sq. ft. commercial property remodeled in1992 for law offices and updated in2009 for mortgage broker and insuranceoffices in Portage, Ind. Possible 4 dis-tinct office areas to use for law officeand rental space for other professionalservices. 5955 Central Ave., pricereduced to $149,900. See listing onWeb or inquiries may be directed toThomas Peters at [email protected].

OFFICE SPACE. Law firm at 235 N.Delaware St., Indianapolis, has spaceavailable to accommodate 3 attorneys inoffices measuring 13’ x 23’ each. Spacealso available for support personnel.The offices may be furnished or unfur-nished and include wireless Internet,phones and access to conference room.The cost of the receptionist would be divided among all of the attorneys.Questions may be directed to: David McClure, 317/221-0800 or [email protected].

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

Appellate Attorney seeks referrals/projects for hire

Experienced in appellate advocacy

for civil & criminal appeals, including PCR representation

Will travel to meet with clients as needed

R. Patrick MagrathAlcorn, Goering & Sage, LLP

[email protected]

APPELLATE COUNSEL

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

FAIR COMMEN

TLife planning as investment planning: a primer for lawyers

By Derrick H. Wilson

you don’t feel like getting out of the office or doingsome exercise are generally the days you really need to.Exercise is a great form of stress relief – it lets you takeyour aggression out on something else. (Or someoneelse – my sparring partner can attest to this; he reallyhates getting in the ring when I’m stressed). Once thistype of investment becomes a routine, it seems odd to skip a workout session, or at least it motivates you to try to find another form of exercise.

More and more, personal investment entails notonly the body, but also the mind. Recently, there’s beena number of companies promoting programs that aresupposed to develop your brain and make it moreresilient in the face of cognitive decline. Other pro-grams literally try to change your outlook. One recentapplication called Happify (http://www.happify.com)purports to improve your mood by helping you focuson positive words and avoid negative ones. It has a series of games designed to focus on the positive and encourage a positive outlook in general.

I recently discovered the TED application for myphone. TED (an acronym for technology, entertain-ment and design) is a nonprofit organization thatbrings in extremely diverse speakers to talk about awide variety of topics. The application lets you down-load the talks to replay on your phone in video formator sometimes audio. I recently had to attend a meetingin Indianapolis and downloaded about 90 minutesworth of TED talks. During a 90-minute period, I learned about robotics, the amazing research beingdone at DARPA (Defense Advanced Research ProjectsAgency), education reform, ways to fix the Internet,and the Axis of Evil comedy tour (hysterical, by theway).

One of the best talks was from Matt Cutts entitled“Try Something New for 30 Days.” His premise wasvery simple; he would simply try to do something different that he always wanted to do for 30 days. For example, he indicated that he always wanted to be a novelist and decided that he would write a novel in 30 days. He completed his novel in 30 days,but indicated that it was largely an awful novel. Hecould, however, now say he was a novelist. He foundthat when he focused on these types of projects for 30days he spent less time on things like television or othertime sucks. Many of the things he tried for 30 days hedid not ultimately keep doing. (He tried, for example,to avoid all sugar for 30 days. He did this, but appar-ently day 31 was extremely ugly.) Some of the otherthings he tried, such as biking to work on a regular


Irecently met with my financial advisor to discussmy finances, long-range goals and how the marketwas going. My financial advisor insists that we meet

twice a year to discuss these matters. I know that hespends countless hours analyzing various options toensure long-term financial stability. I have to wonder,however, whether we are making appropriate invest-ment choices on health issues. Some of the fundamen-tals for financial planning apply equally to personalinvestment – fundamentals such as diversification, discipline and the importance of starting early. (DerrickWilson is not a financial advisor and cannot provide competent financial advice; on most days, he cannotlocate his checkbook.)

Early financial planning can make the differencebetween early retirement and no retirement. Whenyou’re young, it is hard to plan for the future and toinvest the resources necessary to ensure your financialwell-being when it seems so far away. Likewise, when you are younger it may not seem as important to have regular physical activity. Regular exercise hasclear health benefits and can mitigate certain healthproblems. You can certainly start preparing for thatIronman competition in your 50s, but starting suchphysical preparation at an earlier age and sticking with it make attaining the goal much easier.

Diversification means that you don’t have all of your eggs in one basket; if one investment fails or one market segment takes a hit, one can hope theother segments will protect the overall investment.Diversification for personal investment means that I need to do different things to stay active. I try to have lots of little hobbies. I do martial arts once a week.(Derrick Wilson is not, nor will he ever be considered, a “lethal weapon.”) I enjoy biking when the weather isgood. About two years ago a friend and I started goingto a local rock climbing gym. I’m not a runner, nor will

I ever be a runner, but if I keep doing dif-ferent types of physical exercise, I avoidbeing bored. At home I try to do two orthree different types of exercise a week –treadmill, elliptical, heavy bag andweights. If we are going to stay active, it’simportant that we diversify our physicalactivities to ensure that we stay with it.

Discipline in the financial worldmeans that you invest regularly and try to avoid timing the market (i.e., trying toanticipate where the market will go whenthe market is not there). Discipline forpersonal investment means that the days

Derrick H. WilsonChair, ISBA GP, Solo & Small Firm Section

Mattox & WilsonNew Albany, Ind.

[email protected] (continued on page 44)

RG 01-02.15_RG 09.05 2/6/15 11:26 AM

Res Gestae - January/February 2015

Documents

Transcript of Res Gestae - January/February 2015