Res Gestae - March 2014

March 2014 Vol. 57, No. 7

BROCHUREINSIDE

EDITORSusan J. [email protected]

GRAPHIC DESIGNER & PHOTOGRAPHERVincent [email protected]

ADVERTISINGChauncey L. Lipscomb

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Joseph M. PellicciottiWilliam A. [email protected]

5 PRESIDENT’S PERSPECTIVEJim Dimos, Indianapolis, 2013-2014

18 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

30 RECENT DECISIONS 11/13Curtis T. Jones and John Z. Huang, Indianapolis

35 RECENT DECISIONS 12/13Jon B. Laramore and Stephanie L. Boxell, Indianapolis

41 CRIMINAL JUSTICE NOTES 11/13Jack Kenney, Indianapolis

46 FAIR COMMENT CLASSICRabb Emison, Vincennes

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.

©2014 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 GESTÆMarch 2014 � Vol. 57, No. 7

D E PA R T M E N T S8 LEADERSHIP

10 HEALTHCARE LAWYERS

RES GESTÆ • MARCH 2014 3

F E AT U R E S

8 LDA CLASS MEMBERS PAY A VISIT TO COURTBy Bill Brooks, Indianapolis

10 ENSURE YOUR CLIENTS (AND YOUR COLLEAGUES) ARE COMPLIANT WITH HITECHBy Anthony L. Holton, Terre Haute

7 LETTER 26 JUDGES & SOCIAL MEDIA 44 CLASSIFIEDS

18 ACCOUNTABILITY

RG 03.14 p-3_RG 09.05 3/11/14 3:34 PM Page 1

Recently, I had the opportunity toattend a bar event where I was talkingwith some lawyers of my vintage, and

the discussion turned to “that conversation.”What is “that conversation,” you may ask?You know – what’s the matter with newlawyers today? As seems to be the case when-ever that question is raised, my fellow conver-sationalists bemoaned what they perceived tobe unpreparedness for the actual practice oflaw on the part of the latest graduates fromlaw school. Whether or not this perceptionconcerning this generation of new lawyers isbased in reality, I am confident “that conver-sation” was had by 50-something lawyers 28 years ago when I was a new lawyer andduring the entire course of our profession’shistory for that matter.

Soon afterwards, I attended another barevent (I seem to be attending a lot of thosethis year) and had a chance to talk to a groupof law students and newer lawyers about theirtransition into the practice of law. During thatconversation, they talked about the need tounderstand the practical aspects of the prac-tice of law. Honestly, I probably felt the sameway in 1986 when I became a lawyer, as havegenerations of lawyers before and after me.

When I started my practice, I was luckyto begin at a firm where mentors were readilyavailable. Whether it was a senior partner or a peer, I had the benefit of practicing withlawyers who were supportive but not afraid tochallenge and push me to do better. The sameis true today. However, as most of the lawyersin Indiana practice by themselves or in smallfirms, they may not have such mentoringavailable just down the hall. For that reason,the ISBA offers Mentor Match, a programthat helps newer lawyers become acclimatedto the practice of law.

The purpose of the program is to elevatethe competence, professionalism and successof Indiana lawyers through positive mentor-ing relationships. Mentoring creates anopportunity for an experienced lawyer to pro-vide professional guidance and share practicalknowledge and skills with a new lawyer dur-ing the critical transition from law student tolegal practitioner. Specifically, the mentoringrelationship should foster the development ofthe new lawyer’s practical skills and increasehis or her knowledge of legal customs; contribute to a sense of integrity in the legal

profession; promote collegial relationshipsamong legal professionals and involvement in the organized bar; improve legal ability and professional judgment; and encourage the use of best practices and highest ideals in the practice of law.

One of the interesting aspects of Mentor Match is that our Supreme Court’sCommission for Continuing Legal Educationhas approved the Mentor Match program forcontinuing legal education (including ethics)and applied professionalism course credits.Thus, any lawyer in Indiana who serves as a mentor or mentee in the Mentor Matchprogram and complies with its requirementsmay obtain CLE and/or APC credits.

Another interesting aspect of MentorMatch is that you can bring your own mentoror mentee to the program. So, if you’vealready developed a relationship with a men-tor or mentee, the ISBA can help you with thenecessary curriculum to make the experiencecomprehensive. This is helpful for lawyers in larger firms as it allows you to participatein your firm’s mentorship program and stillobtain the CLE or APC credits. If you do not have a mentor or mentee in mind, thencontact the ISBA, and we will help you find a candidate from our database.

Once the relationship has been established, the ISBA will provide a mentor orientation manual for use during the program. This manual will outline the whole arrangement and timelines. Once you design your individual curriculum to receiveyour CLE/Ethics/APC credits, all the features of the program and the curriculum and reference materials can easily be down-loaded or read from links on the ISBA website.

Upon com-pletion of the nec-essary hours ofmentoring time,you can submit a “certificate of completion”

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

Indianapolis, IN 46204317/639-5465 • 800/266-2581

317/266-2588 fax • [email protected]://www.inbar.org

OFFICERSPresident James Dimos, Indianapolis

President-Elect Jeff R. Hawkins, Sullivan

Vice President Carol M. Adinamis, Carmel

Secretary Robyn M. Rucker, Valparaiso

Treasurer Hon. Susan Orr Henderson,Covington

Counsel Steven M. Badger,to the President Indianapolis

BOARD OF GOVERNORS1st District Scott E. Yahne, Munster

2nd District Todd A. Etzler, Valparaiso

3rd District James M. “Jay” Lewis, South Bend

4th District Martin E. Seifert, Fort Wayne

5th District Candace D. Armstrong, Brook

6th District John A. Conlon, Noblesville

7th District Seth M. Lahn, Bloomington

8th District Angela L. Freel, Evansville

9th District J. Todd Spurgeon, New Albany

10th District Wilford A. Hahn, Huntington

11th District Clayton C. Miller, Indianapolis

11th District Tonya J. Bond, Indianapolis

11th District Terry W. Tolliver, Indianapolis

Past President Daniel B. Vinovich, Highland

House of Delegates Jessie A. Cook, Terre Haute,Chair

House of Delegates Andi M. Metzel, Indianapolis, Chair-Elect

Young Lawyers Anthony M. Rose, South Bend,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]

Legislative CounselPaje E. Felts • [email protected]

Director of Section ServicesMaryann O. Williams • [email protected]

Administrative AssistantBarbara L. Mann • [email protected]

CLE & Special Projects DirectorCheri A. Harris • [email protected]

CLE & Special Projects CoordinatorChristina L. Fisher • [email protected]

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

Administrative AssistantKimberly D. Latimore • [email protected]

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

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

Bookkeeper & Convention RegistrarSherry Allan • [email protected]

Graphic Designer & PhotographerVincent Morretino • [email protected]

ReceptionistChauncey L. Lipscomb • [email protected]

� RES GESTÆ • MARCH 2014 5

PRESIDENT’S PERSPECTIVEJIM DIMOS

[email protected]

That conversation

(continued on p. 7)

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Board vacanciesannounced

Any lawyer member of theIndiana State Bar who desires

to be considered for nomination to a vacancy on the Board of Gov-ernors should convey that interestto the chair of the Association’sNominating Committee. Memberswho are nominated will face anelection at the annual meeting of the Association Assembly to beheld in Indianapolis in October,after which a two-year term willcommence.

District vacancies for the termOctober 2014 through October2016 are as follows:

District 2, representing the countiesof DeKalb, Fulton, Kosciusko,LaGrange, LaPorte, Marshall, Noble,Porter, Pulaski, Starke, Steuben and Whitley;

District 3, representing the countiesof Elkhart and St. Joseph;

District 6, representing the countiesof Decatur, Fayette, Franklin,Hancock, Hamilton, Johnson, Rush, Shelby and Union;

District 7, representing the countiesof Clay, Greene, Hendricks, Monroe,Morgan, Owen, Parke, Putnam,Sullivan, Vermillion and Vigo;

District 8, representing the countiesof Daviess, Dubois, Gibson, Knox,Martin, Perry, Pike, Posey, Spencer,Vanderburgh and Warrick;

District 9, representing the countiesof Bartholomew, Brown, Clark,Crawford, Dearborn, Floyd,Harrison, Jackson, Jefferson,Jennings, Lawrence, Ohio, Orange,Ripley, Scott, Switzerland andWashington; and

District 11, representing MarionCounty, one position.

Also, this year, for the firsttime, nominations are being soughtfor an at-large board seat in orderto reflect the diversity of the legalprofession in Indiana and of thestate itself. Members from any district may apply.

Letters of interest and résumésnot longer than two pages in length(with information as to leadershippositions or other activity withinthe State Bar as well as other affilia-tions) should be sent to Daniel B.Vinovich, chair, ISBA NominatingCommittee, Indiana State BarAssociation, One Indiana Square,Suite 530, Indianapolis, IN 46204.The deadline for receipt is April 15. �

Law school tuition Dear Editor:

I was pleased to see Res Gestae featurethe Statewide Bench-Bar Symposium paneldiscussion on the problem of high tuition atour law schools [see January/February 2014,p. 28]. When combined with the inability ofsignificant numbers of graduates to obtainwell-paying positions, this has become animportant financial consideration for thoseentering, as well as those consideringwhether to enter, our profession.

Here’s some history. When I graduatedin 1962 from the I.U. Bloomington LawSchool (now Maurer), tuition was $450 peryear (that’s not a typo). Adjusted for infla-tion, that tuition cost would now be $3,520in today’s dollars. However, today’s in-statestudents actually pay $29,236 (plus $1,290in mandatory fees).

Students still take their classes in theexact same building and still require thesame number of faculty per course (one), so how can tuition have risen so much?

During my years on the I.U. Board of Trustees (1992-2001), as the board annu-ally reviewed proposed tuition increases, I noticed that the increase requested byboth law schools [in Indianapolis andBloomington] was always far above the preceding year, with never any justificationgiven. When I questioned the size of theincreases, the university president’s opinionwas that the professional schools should beable to charge whatever the freight will bear,meaning that as long as applicants exceededthe spaces available in the freshman class,there was no limit. No other trustee voiceddisagreement with him, so after manydecades we should not be surprised thatthese accumulated, unchecked tuitionincreases have now become a cross aroundthe neck of our graduates.

Prof. William Henderson, a facultymember mentioned in the Res Gestae arti-cle, has received national attention for hisefforts to remedy this problem. We shouldlisten to him before more of the best stu-dents find law school to be unaffordable.

Ray RichardsonGreenfield, [email protected]


signed by the both of you andreceive the appropriate credit. At that point, the program is overunless you want it to continue. We hope that during the course of the program you have formed a long-term relationship with anattorney that will allow both of you to learn from each other for the rest of your professional lives.

Currently, we have 105 men-tors and 112 mentees participatingin the program. Since 2010, MentorMatch has had nearly 230 mentorsproviding guidance to 255 mentees.While these are impressive num-bers, we would love to have a largerprogram and encourage both ournewer and experienced lawyers toparticipate. Besides the fact men-tors and mentees can receive CLEor APC credit, both will have theinvaluable opportunity to connectwith a professional colleague – a connection that will lead to amutual learning experience. It isalso an opportunity to improve our profession, increase civility and provide the public with better-trained practitioners. This is ourprofession, and here is a chance to make it better. I hope that youtake the opportunity to do so. �

PRESIDENT’S PERSPECTIVEcontinued from page 5

RG-03.14_RG 09.05 3/11/14 11:43 AM

There were the expectedlessons and advice on leadership when the third

class of the State Bar’s LeadershipDevelopment Academy (LDA)spent most of its first full session in state and federal courtrooms.

Less expected, though, was a chance to view firsthand an oralargument in front of the IndianaCourt of Appeals. That’s exactlywhat the 25 members of the acade-my class did on Feb. 11 when anappellate court panel made a veryshort road trip to the IndianaSupreme Court courtroom on the third level of the IndianaStatehouse to hear Griesemer v. State.

There was an added bonus, asthe young lawyers had the opportu-nity to quiz the three-judge panelcomposed of the Hon. Nancy H.Vaidik, chief judge of the IndianaCourt of Appeals; the Hon. Melissa

S. May; and the Hon. John G.Baker. Questions about the case,involving the arrest of an allegedprostitution customer in an east-side Indianapolis sting operation,were out of bounds, but the judgesencouraged questions about theappeals process as well as, of course,their thoughts on leadership.

Vaidik said her career has beenguided by her constant pursuit ofexcellence. “When I was a student I wanted to be the best student,”she said. “When I was a prosecutorI wanted to be the best prosecutor.”And so, Vaidik said, people thoughtwhen she got to the selectionprocess that she had been targetingthe appellate court all along.“Absolutely not,” she said.

Said Baker, “Do whatever you do well – and opportunity will present itself.”

May advised the young lawyersto always be prepared when that

time arrives. “If it’s somethingyou’re interested in, you have toput yourself out there to be thoughtabout.”

Baker added a plug for organi-zations such as the Indiana StateBar Association. “Each one of usbenefits from our associations withother lawyers,” Baker said. “Wenow feel compelled to give back to the organization that has givenus so much.”

Indiana Chief Justice Brent E.Dickson touched upon that themeas well. He said his rise in the pro-fession would not have been possi-ble had he not been active in thebar association. But he also creditedother more local networking activi-ties for his early success.

But when the call came to serve on the Supreme Court,Dickson added, “I had no ambi-tions [in this regard]. It is notsomething I planned to do at all.”

Dickson also encouraged theyoung lawyers to honor the profes-sion, especially in light of the manynegative images presented throughthe fictional lawyers seen on televi-sion. “The public’s trust and confi-dence in the legal profession arecrucial,” he said, adding thatlawyers must counter the media’sportrayals of lawyers as aggressiveand confrontational. “You can sellthat on a one-on-one basis in thecommunity,” he said. “Each of us,as a lawyer, is selling our professionto our fellow man.”

The day in the Statehousewasn’t all about the judicial system.One session found the academymembers in small groups withmembers of the Indiana GeneralAssembly who also happened to be lawyers. That group includedSen. Karen Tallian, Portage; Sen. Lonnie M. Randolph, EastChicago; Rep. Casey Cox, FortWayne; Rep. Eric A. Koch, Bedford;Rep. Jud G. McMillin, Brookville;Rep. Greg E. Steuerwald, Avon; and

ASS

OC

IATI

ON

NEW

SLDA class members pay a visit to court, both state & federal

By Bill Brooks

8 RES GESTÆ • MARCH 2014

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Lesley A. Crane, chief of staff forHouse Speaker Brian C. Bosma.

Several of the legislators spokeof the need for more attorneys inthe General Assembly. Tallian saidthat only 22 of the 150 legislatorsare attorneys, “and that’s notenough.” She said many legislatorswith good intentions write pro-posed bills “that are outrageous,and that’s not their intent. Manydon’t understand statutory lan-guage and what happens when itgets into a courtroom.” McMillinconcurred that the lack of legalexpertise leads to bad bills. “Theydon’t understand the letter of thelaw – but they also don’t under-stand the practical implications.”

Said Steuerwald, “I think youshould have an attorney on everycommittee.” At the same time, henoted that serving in the GeneralAssembly is time-consuming. “If itwasn’t for my partners, I couldn’tbe here,” he said.

Tallian echoed the sentimentsof several of the session’s speakerswhen she said serving in her cur-rent position was not somethingshe planned or every expected to do. “If I expected anything,” she said, “it was to be a judge.”

A judge, meanwhile, expectednothing of the sort. The Hon.Tanya Walton Pratt of the U.S.District Court for the SouthernDistrict of Indiana told the acade-my students that she neverdreamed she would one day be a federal judge.

“I advise all of you to dreambig, to do things outside your com-fort zone,” Pratt said when theyoung lawyers visited the impres-sive Birch Bayh Federal Buildingand U.S. Courthouse, which sitsjust north of Monument Circle in downtown Indianapolis.

Pratt stressed the importanceof mentors, as well as the fact thatshe had enjoyed several jobs – as a

family lawyer, as a superior courtjudge – which she would have beensatisfied to remain. But she advisedthe academy students to “haveyourself in position to embraceopportunities when they come.”The important thing, the federalcourt judge added, “is to maintainyour integrity – and be prepared.”

And not for the first time dur-ing the academy session, anotherspeaker touched upon much thesame theme. This time it wasGregory F. Zoeller, Indiana’s attor-ney general, who stressed that thetime to show leadership comessooner than people expect. “Don’twait to make partner or gain a posi-tion of leadership,” he said. “Leadfrom where you find yourself. Youdon’t get recognized for leadershipskills after you’ve been appointedleader. People will come to you ifyou demonstrate a leadership skillset. You’ve got to put yourself outthere to fulfill your obligation as aleader.” �


Class members of the ISBA Leadership Development Academy intently watch a presentation in the Indiana Supreme Court.

Photo by

Vincent M

orretin

o

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The Health InformationTechnology for Economic& Clinical Health Act

(“HITECH”), adopted as part ofthe Federal Stimulus Package of2009 (or the “American Recovery & Reinvestment Act of 2009”), was enacted to encourage theimplementation and utilization ofelectronic health records by health-care providers. While the broadpush for an electronic infrastruc-ture in the healthcare industryundoubtedly provides significantadvantages, it also carries addedrisks, especially with regard to dis-closures of protected health infor-mation (“PHI”) and other privacybreaches. HITECH addresses theserisks by advancing some of themost significant changes yet to the privacy and security measuresin the Health Insurance Portability& Accountability Act of 1996(“HIPAA”). These changes havegreatly affected legal and healthcareprofessionals alike, imposing com-plex administrative and regulatorydemands on healthcare providers(“covered entities” under the Act)and their business associates alongwith a new civil penalty structurefor those who are noncompliant. It is incumbent on those who prac-tice health law to be vigilant in fol-lowing the regulatory developmentsof HIPAA compliance, and thesedemands are even more rigorous

with the passage ofHITECH.

AlthoughHITECH was enactedin 2009, it wasn’t untilJan. 25, 2013, that theDepartment of Health& Human Services(“HHS”) released itsFinal Rule to imple-ment the provisions of HITECH andamendments toHIPAA. Healthcare

providers and their business associ-ates were expected to be in fullcompliance with much of the lawby Sept. 23, 2013.1 Therefore, thetime is ripe for legal professionalsto ensure that healthcare profes-sionals and their business associatesare compliant with HITECH rulesand regulations and understandhow the new rules may interactwith state law.

The Final Rule released byHHS addresses proposed regula-tions under HITECH that sparkedthe most discussion (and concern),including (1) the extension ofHIPAA privacy and security rulesto business associates of coveredentities; (2) required risk assess-ments and breach notificationswhen an individual’s protectedhealth information is compro-mised; and (3) the expansion of an individual’s right to restrict disclosure of PHI to health planswhen paying out of pocket forhealthcare items or services.2

Extension of HIPAA security and privacy rules to business associates

Before the adoption ofHITECH, business associates ofcovered healthcare entities were not directly liable for breaches orimproper disclosures of PHI in theperformance of their services. Withthe enactment of HITECH, notonly are business associates expect-ed to comply with HIPAA’s privacyand security rules, but also subcon-tractors of business associates andother “downstream” players mustensure compliance. This broadexpansion of HIPAA’s privacy andsecurity rules fueled much debateabout the reach and scope ofHITECH.

A “business associate” is gener-ally defined as a person or entityperforming functions, services or

activities on behalf of a coveredentity that involve the receipt,maintenance, use or disclosure of protected health information.3

This definition would encompasspatient safety organizations, health information organizations, “E-Prescribing Gateways,” recordsvendors, record storage organiza-tions, as well as attorneys, accoun-tants and any other entity or indi-vidual that receives or maintainsPHI.4 Not only are these entitiesconsidered business associates, butalso their subcontractors and anyother downstream entities whomaintain PHI are considered busi-ness associates and expected tocomply with the enhanced HIPAAprivacy and security rules. This is so even if the business associatedoesn’t actually view the PHI; all that is required is the receipt and maintenance of PHI.5

With the enactment ofHITECH, business associates aredirectly liable under various HIPAArules, including rules for impermis-sible uses and disclosures of healthinformation,6 for failure to providenotification to a covered entity inthe event of a breach of confiden-tiality,7 for failure to provide accessto a copy of electronic PHI to eitherthe covered entity or the individual,for failure to disclose PHI whererequired by the Secretary to investi-gate or determine the business asso-ciate’s compliance with the HIPAArules,8 and for failure to complywith the requirements of the securi-ty rule.9

Business associates must alsobear in mind that they have certaincontractual obligations. Coveredentities must establish a BusinessAssociate Agreement that requiresbusiness associates to implementadministrative, physical and techni-cal safeguards that reasonably andappropriately protect the confiden-

Healthcare lawyers: Ensure your clients (and your colleagues) are compliant with HITECH

By Anthony L. Holton


Anthony L. HoltonWilkinson, Goeller, Modesitt,

Wilkinson & Drummy LLPTerre Haute, Ind.

[email protected]

RG-03.14_RG 09.05 3/11/14 11:43 AM

tiality, integrity and availability ofthe electronic PHI that they create,receive or maintain on behalf of a covered entity.10 The agreementmust also provide that businessassociates take reasonable measuresto ensure that any downstreamagent, including a subcontractor,safeguards PHI.11 Section164.504(e) specifies the provisionsrequired in the Business AssociateAgreements,12 and beyond theserequirements, as with any contract-ing relationship, covered entitiesand business associates may includeother provisions or requirementsthat dictate and describe their relationship.13 These may or maynot include additional assurances of compliance, indemnificationclauses or other risk-shifting provisions.14

The requirements for contractsor other arrangements between acovered entity and a business asso-ciate apply in the same manner tocontracts between business associ-ates and subcontractors.15 Eachsubsequent agreement in the “busi-ness associate chain” must be asstringent or more stringent as theprior agreement with respect topermissible uses and disclosures of PHI.16 For those having a need to draft a Business AssociateAgreement for their clients, theDepartment of Health & HumanServices provides sample provisionson its website.17

Breach notifications and risk assessments

Section 13402 of HITECHrequires HIPAA-covered entities to provide notification to affectedindividuals and – in certain circum-stances – to the Secretary of HHSfollowing the discovery of a breachof unsecured protected healthinformation. A breach is treated as “discovered” on the first day thecovered entity knows – or shouldreasonably have known – of the

breach.18 In the event a breach isdiscovered by a business associateof a covered entity, the Act requiresthe business associate to notify thecovered entity.

A “breach” is the unauthorizedacquisition, access, use or disclo-sure of PHI that compromises thesecurity or privacy of such informa-

tion.19 The interim HITECH rule

proposed that the standard bywhich a “compromise” should bereported is when a breach poses asignificant risk of financial, reputa-tional or other harm to the individ-ual. However, the Final Rulereleased this year amended thisproposed rule, providing that all impermissible disclosures are


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(continued on page 12)

RG-03.14_RG 09.05 3/11/14 11:43 AM

presumed to be a breach unless thecovered entity or business associate,as applicable, demonstrates thatthere is a low probability that the PHI has been compromised.“Breach notification is necessary inall situations except those in whichthe covered entity or business asso-ciate, as applicable, demonstratesthat there is a low probability thatthe protected health informationhas been compromised.”20 Thus, a breach notification is not requiredunder the Final Rule only if a cov-ered entity or a business associatedemonstrates through a “riskassessment” that there is a lowprobability that the PHI has beencompromised, not merely thatthere is no significant risk of harmto the individual.21

Although some commentatorspushed for a more objective bright-line standard to govern when abreach notification is required, a “risk assessment” requirement

stems from a recognition by HHSthat there are several situations inwhich an unauthorized disclosureof PHI is so inconsequential that it does not warrant notification.22

The Final Rule provided some base-line factors that a covered entity orbusiness associate should considerin its risk assessment, including: (1) the nature and extent of thePHI involved (e.g., records of acommon cold versus mental healthinformation), including the types of identifiers and the likelihood ofre-identification; (2) the unautho-rized person who used the PHI or to whom the disclosure wasmade (e.g., an individual’s friendversus a paper shredding service);(3) whether the PHI was actuallyacquired or viewed; and (4) theextent to which the risk to the PHIhas been mitigated.23 Other factorsmay be considered in addition tothe foregoing, keeping in mind thatevery impermissible disclosure is

HITECH COMPLIANCE continued from page 11


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presumed to be a breach, and HHSexpects risk assessments to be thor-ough and completed in good faith,and for the conclusions reached tobe reasonable.24 A more thoroughexamination of these factors is out-lined in the HHS Final Rule, whichis available for public viewing onthe Federal Register.

Upon discovery of a breach, a covered entity must notify indi-viduals without unreasonable delay, but in no case later than 60calendar days from the date of dis-covery.25 This timeframe imposesan obligation of promptness oncovered entities and their businessassociates to conduct their investi-gations and risk assessments. In some cases, waiting until the60th day might be considered anunreasonable delay.26 Notificationsshould include, to the extent possi-ble: (1) a brief description of whathappened, including the date of thebreach and the date of discovery;(2) a description of the types of PHIinvolved; (3) any steps individualsshould take to protect themselves;(4) a brief description of what thecovered entity is doing to investi-gate and mitigate the damage; and(5) contact procedures for individ-uals to ask questions.27

The individual’s right to request a restriction of uses and disclosures

Prior to the enactment ofHITECH, covered healthcareproviders had discretion to acceptor reject an individual’s request torestrict the use or disclosure of PHIfor treatment, payment and health-care operations purposes.28 Now,HITECH sets forth circumstancesin which a covered entity mustcomply with an individual’s requestto restrict disclosure of PHI to hisor her health plan. Specifically,when an individual requests a


RG-03.14_RG 09.05 3/11/14 11:43 AM

restriction on disclosures of PHI tohealth plans where the purpose ofthe disclosure is solely for purposesof payment or healthcare opera-tions, and the individual pays out of pocket in-full for the healthcareitem or service, the covered entity is required to comply with the indi-vidual’s request, unless disclosure is otherwise required by law.29

This requirement caused agreat deal of confusion amongsthealthcare providers and legal pro-fessionals. Many questions natural-ly arose from commenters coveringa wide range of topics. What shouldproviders do for services covered bystate or federally funded Medicaidor Medicare programs, which mayrequire disclosure of PHI throughobligatory audits or otherwise?What is the effect of this provisionwhere certain state laws prohibit“balance billing,” making it illegalfor a provider to bill the patient for

any covered service over and aboveany permissible copayment, coin-surance or deductible amounts?

Commentators also raisedissues such as how a provider is tooperate in an HMO setting requir-ing submission of a claim or otherdisclosure of PHI, and whether a provider faces liability when“downstream providers,” e.g., phar-macies, are unaware of an individ-ual’s restriction request and dis-close PHI to a health plan. Or whatif an individual’s out-of-pocketpayment is not honored (e.g., abounced check) – is the coveredentity still obligated by the individ-ual’s restriction request?

Many of these questions wereaddressed in varying degrees in theHHS Final Rule. The Rule clearlyprovides that covered entities are safe deferring to state law ininstances where the law conflictswith an individual’s restriction

request under HITECH.30 Withrespect to concerns about meetinglegal obligations under state law,such as disclosing information toMedicare or Medicaid for requiredaudits, HITECH allows disclosuresthat are otherwise required by law,notwithstanding an individual’srequested restriction ondisclosures.31 For instance,Indiana’s Medicaid regulations pro-vide for certain audits and requestsfor information.32 If the MedicaidOffice requests certain PHI duringan audit as required by state law,then a provider will not commit a HITECH violation by disclosingwhat is minimally necessary to com-ply with state Medicaid rules andregulations.33

Nor will a covered entity com-mit a HITECH violation by submit-ting a claim to a health plan for acovered service where a particulardisclosure is required by federal



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RG-03.14_RG 09.05 3/11/14 11:43 AM

law, such as Medicare.34 Exception-ally, for those concerned aboutcontractual obligations in an HMOsetting, HHS does “not consider acontractual requirement to submita claim or otherwise disclose pro-tected health information to anHMO to exempt the provider from his or her obligations under[HITECH].”35

With respect to maintenance of medical records, the Final Ruledoes not require covered entities tocreate separate medical records orotherwise segregate PHI to protectagainst inadvertent disclosures.However, covered entities will needto employ some method of “flag-ging” or notations in the record toensure that PHI is not inadvertentlysent to a health plan.36 The FinalRule notes that covered entitiesshould already have in place, andthus be familiar with applying,minimum necessary proceduresthat limit the PHI disclosed to ahealth plan to the amount reason-ably necessary to achieve the pur-pose of the disclosure.37

Another area of concernamongst commentators is how toaddress the scenario in which anindividual requests a restrictionwith respect to only one of severalhealthcare items or services provid-ed in a single encounter, and it isadministratively burdensome tounbundle the item or service forbilling purposes. The Final Rulesuggests that a provider shouldunbundle the services if able to do so.38 If unbundling would causean administrative burden, then theprovider should inform the individ-ual and give him or her the oppor-tunity to restrict and pay out ofpocket for the entire bundle ofitems or services.39

Covered entities are encour-aged in many scenarios to engage in open dialogues with individualsabout their rights under HITECH.For purposes of “downstream”

services, where an individualprefers that downstream providers,e.g., pharmacies, abide by restric-tion requests, providers shouldassist the individual, if feasible, inalerting downstream providers ofPHI restrictions and should informindividuals of the possibility of

inadvertent disclosures.40 Withrespect to follow-up care, where aprior service was paid out of pocket

and not disclosed, and the provider

needs to include information that

was previously restricted in the bill

to a health plan in order to have the

services deemed medically neces-

sary or appropriate, HHS highly

encourages covered entities to

engage in an open dialogue with

individuals to ensure that they are


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aware of the possibility of disclo-sure.41

As in all cases, best practice isto err on the side of caution, speak-ing openly with individuals regard-ing the possibility – despite request-ing otherwise – that PHI could bedisclosed to health plans, whetherthrough an audit, a downstream orfollow-up service, or otherwise. Foradditional caution, it would be wiseto draft and issue a formal policy tothose patients who request restric-tions in order to inform them ofHITECH’s limitations.

Refresh your clients’ procedures and policies to comply with HITECH

HITECH is both exciting anddaunting. Moving toward a digitalinfrastructure for the collection and use of medical data can lead to higher efficiency and decreasedcosts of healthcare services.

However, HITECH’s rules and reg-ulations are complex, and a thor-ough understanding is required forthose advising healthcare clients.For healthcare professionals andtheir advisors, it is essential thatpolicies and procedures are updat-ed to reflect the changes advancedby HITECH. The new regulatoryframework surrounding BusinessAssociate Agreements, PHI disclo-sure restrictions, and risk assess-ment practices are powerful andbroad in scope. Healthcare lawyersshould consult the HHS Final Rule as well as surrounding law toensure that their clients are in fullcompliance with HITECH and, of course, other past and futureHIPAA developments. �1. 78 Fed. Reg. 5566 (Jan. 25, 2013), amending 45 C.F.R. Parts 160 and 164.

2. The HHS omnibus rule also provides an exten-sive interpretation of the updated restrictionson the use and disclosure of PHI for market-ing, sales and fundraising purposes.

3. 45 C.F.R. §160.103; 78 Fed. Reg. 5572 (Jan. 25, 2013).

4. Id. at 5571.

5. 78 Fed. Reg. 5572 (Jan. 25, 2013).

6. 45 C.F.R. §164.502(a)(3).

7. 45 C.F.R. §164.410.

8. 45 C.F.R. §164.502(a)(4)(i).

9. 45 C.F.R. §164, Subpart C.

10 78 Fed. Reg. 5589 (Jan. 25, 2013).

11. Id.

12. 45 C.F.R. §164.504(e).

13. 78 Fed. Reg. 5601 (Jan. 25, 2013).

14. Id.

15. Id. at 5590.

16. Id. at 5601.

17. U.S. Dep’t of Health & Human Services,Business Associate Contracts, at http:/www.hhs.gov/ocr/privacy/hipaa/under-standing/coveredentities/contractprov.html(last visited Jan. 26, 2014).

18. 45 C.F.R. §164.404(a)(2).

19. 42 U.S.C. §17921(1)(A).

20. 78 Fed. Reg. 5641 (Jan. 25, 2013).

21. Id.

22. Id. at 5642.

23. Id.

24. Id. at 5643.

25. 45 C.F.R. §164.404(b).

26. 78 Fed. Reg. 5648 (Jan. 25, 2013).

27. Id.

28. 45 C.F.R. §164.522(a).

29. 78 Fed. Reg. 5628 (Jan. 25, 2013).

30. Id.

31. Id.

32. 405 Ind. Admin. Code §5-3-4 (2013); 405 Ind. Admin. Code §5-24-4(2013).

33. 78 Fed. Reg. 5628 (Jan. 25, 2013).

34. For instance, when a physician or supplier furnishes a service that is covered by Medicare,then Section 1848(g)(4) of the Social SecurityAct will apply, requiring a claim submission to Medicare. However, there is an exception tothis rule where a beneficiary refuses to autho-rize the submission of a bill to Medicare. Insuch cases, a Medicare provider is not requiredto submit a claim for the covered service andmay accept out-of-pocket payment. Id.

35. Id. at 5629.

36. Id. at 5628.

37. Id.

38. Id. at 5629.

39. Id.

40. Id.

41. Id. at 5630.

Anthony L. Holton is an associate withthe Terre Haute firm Wilkinson, Goeller,Modesitt, Wilkinson & Drummy LLP.His practice consists of business and commercial litigation, insurance defenselitigation and healthcare regulatory compliance. Tony is a graduate of I.U.Robert H. McKinney School of Law.



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Lately, I’ve been thinkingabout how lawyers mightget into disciplinary trouble

without directly doing anythingwrong. Unless you are a sole practi-tioner with no support staff, youcould be at risk because of thingsother people do – especially if thewrongdoer is someone in a law firm in which you have managerialor supervisory responsibility.

Vicarious accountability

Lawyer discipline is not aspecies of collective punishmentwhere an entire group (all thelawyers in a firm) is punishedbecause one group member com-mits misconduct. If you read theRules of Professional Conduct, theyadvisedly use the singular to definethe duties that “a lawyer” has to “a client.” Here’s a simple example:“A lawyer shall act with reasonablediligence and promptness in representing a client.” Rule ofProfessional Conduct 1.3. If onelawyer in a law firm is not diligentin representing a client, that lawyercan be professionally disciplined for violating Rule 1.3, but the otherlawyers in the firm who had nodirect responsibility for that client’smatter generally cannot.

Under some circumstances,lawyers can be held responsible in discipline for the acts of othersjust as though they had acted them-selves. The standard for whenlawyers have vicarious disciplinary

responsibility for theacts of others is cap-tured in two rules.Rule 5.1(c), when thedirect actor is anotherlawyer, and 5.3(c),when the direct actoris a nonlawyer. Thestandard in the tworules is the same, sothere is no need to dis-tinguish between thetwo. First, if a lawyer

“orders or, with knowledge of thespecific conduct, ratifies the con-duct involved,” the lawyer will be treated as though the lawyerengaged in the conduct directly.Rules 5.1(c)(1) and 5.3(c)(1). Thefirst part is a straightforward appli-cation of agency principles. If I tellyou to do something, and you do it, it is the same as if I did it myself.This same notion is captured inRule 8.4(a), which defines profes-sional misconduct to include vio-lating the Rules of ProfessionalConduct through the acts of anoth-er or inducing another to violatethem.

In the special case of conflictsof interest, imputed conflicts, pri-marily under Rule 1.10(a), can alsoimplicate managerial and supervi-sory accountability under Rules5.1(a) and (b) and 5.3(a) and (b).My next column will discuss theapplication of those rules in thecontext of law firm obligations to avoid client engagements thatcreate conflicts of interest.

RatificationThe second part is less clear.

There is plenty of case law outsideof lawyer discipline on ratification,but not much within it. The onlydiscipline case I am aware of thatlooked in some depth at ratificationis Matter of Anonymous, 819 N.E.2d376 (Ind. 2004). It was an odd set offacts that I will not describe indetail. Essentially, the respondentlawyer’s client secured a represent-ed co-defendant’s signature on anexculpatory affidavit directly fromthe co-defendant while the respon-dent lawyer was nearby and gener-ally aware of what was happening.Thereafter, the respondent filed the affidavit in court, intending to use it to his client’s advantage.An agreed submission by therespondent and the DisciplinaryCommission proposed to theSupreme Court that the respondent

violated Rule 4.2, not because therespondent had a direct ex partecommunication with the represent-ed co-defendant, but because, bynot doing anything to intervene inhis client’s conduct and filing theaffidavit with the intent to use it tohis client’s advantage, he ratified hisclient’s direct contact with the co-defendant, thereby making it hisown.

The Supreme Court rejectedthe ratification theory and insteadconcluded that the facts supporteda finding that the respondent’s conduct justified a finding that he directly violated Rule 4.2:“‘Ratification’ means the confirma-tion of a previous act done either by the party himself or by another.Black’s Law Dictionary 1135 (5thEd. 1979). Although ratification ofa client’s independently initiatedcommunication is not sufficient toconstitute a violation, we believethe respondent’s active participa-tion in the events leading to the[co-defendant] signing the affidavitamounts to more than mere ratifi-cation of his client’s actions.” Id. at 379. The Court seems to haveheld that ratification is not enoughto impute a client’s conduct to alawyer, but, without saying so, theCourt clearly could not have meantthat to be the case when the con-duct is by another lawyer or a non-lawyer employed, retained by orassociated with the lawyer. SeeRules 5.1(c)(1) and 5.3(c)(1).

Failure to remediate or mitigate

The second basis for directlyimputing another’s conduct to alawyer is when the lawyer is a part-ner or has comparable managerialauthority in a firm or has directsupervisory authority over anotherand, in one of those capacities,“knows of the conduct at a timewhen its consequences can beavoided or mitigated but fails totake reasonable remedial action.”

ETH

ICS

CU

RB

STO

NE

Thoughts on law firm management and supervisionBy Donald R. Lundberg


Donald R. LundbergBarnes & Thornburg LLP

Indianapolis, [email protected]

RG-03.14_RG 09.05 3/11/14 11:43 AM

Rules 5.1(c)(2) and 5.3(c)(2).Lawyers have been disciplinedbecause nonlawyer employees haveengaged in misconduct that thelawyers could have remediated ormitigated post hoc. See, e.g., Matterof Silverman, 750 N.E.2d 376 (Ind.2001); Matter of Scott, 739 N.E.2d658 (Ind. 2000).

The Court’s past treatment ofvicarious responsibility for the con-duct of other lawyers under Rule5.1(c) has been perplexing. InMatter of Galloway, 729 N.E.2d 574(Ind. 2000), the Commission andthe respondent stipulated to theCourt that the respondent violatedRule 5.1(c)(2) because Jackson,another lawyer in the firm, alloweda case to get dismissed for failure to prosecute and failed to informthe client. In a footnote, the Courtstated: “The agreed facts do notexpressly establish that the respon-

dent knew that the wage case waslanguishing before the T.R. 41(E)motion was granted or that theclient had not been notified of thecase’s dismissal, but we nonethelessfind a violation of the Rules ofProfessional Conduct pursuant to Rule 5.1(c)(2) because of therespondent’s agreement that such a violation occurred.” Id. at 575 n. 1. (I will digress for a moment to encourage respondents to notexpect the Court to protect themfrom their own imprudence.)

In Matter of Anonymous, 774N.E.2d 1101 (Ind. 2000), a law firmpartner entered an appearance in a case, but was thereafter a passiveparticipant. The case was handledby another firm partner who laterdeparted the firm, but left the casebehind as essentially an orphan.The case was dismissed for failureto comply with a case management

plan. The respondent and theCommission submitted an agree-ment to the Court that the respon-dent had violated Rule 5.1(c)(2)rather than having directly violatedthe applicable rules, 1.1 (compe-tence), 1.3 (diligence) and 1.4(client communications). TheCourt rejected the Rule 5.1(c)(2)charge because the respondent’sinvolvement in the case was sominimal that he did not knowabout its imperiled status at a timewhen he could do anything toremediate or mitigate the conse-quences of the other lawyer’sneglect. In a footnote, the Courtobserved that the respondent couldhave been found to have violatedRules 1.1, 1.3 and 1.4, but that it could not find those violationsbecause they weren’t charged.



RG-03.14_RG 09.05 3/11/14 11:43 AM

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Id. at 1102 n. 1. Even though theCourt rejected the Rule 5.1(c)(2)charge and was not permitted tofind violations of uncharged rules,it nonetheless ordered a privatereprimand. (I digress for a momentto advise respondents that theCourt might protect them fromtheir own imprudence, but sanc-tion them anyway.)

Lawyer-managers

There are two entirely differenttypes of disciplinary culpabilitywhen other lawyers or nonlawyersin the same firm engage in miscon-duct. The first is captured in Rules5.1(a) (management of lawyers)and 5.3(a) (management of non-lawyers). Again, the rule structure is parallel, and the basic conceptsare the same. Under these rules, law firm managers must “make rea-sonable efforts to ensure that thefirm has in effect measures giving reasonable assurance” that firmlawyers will conform to the Rules of Professional Conduct and non-lawyers will conduct themselvescompatibly with lawyerly profes-sional obligations.

Even good lawyers completelymisunderstand these provisionsand discuss them as though theyrelate to supervisory duties, whenthey don’t. They describe manage-ment duties – that is, institutional-level duties to articulate reasonablepolicies and procedures geared to running a law firm ethically.Implementation of those policiesand procedures through law firmsupervisory relationships is a differ-ent thing, governed by Rules 5.1(b)and 5.3(b), which I will discussshortly.

If law firm managers set upand communicate reasonable poli-cies and procedures, including poli-cies and procedures for propersupervision, those managers havemet their Rule 5.1(a) and 5.3(a)obligations. If supervisors unrea-

sonably fail to see that reasonablelaw firm policies and proceduresare followed, that signals a failure of supervision, not a failure ofmanagement.

Keep in mind that law firmmanagers can also be – and usuallyare – supervisors. If a manager-supervisor does a good job of man-agement and a poor job of supervi-

sion, that lawyer should not be sub-ject to discipline for violating Rule5.1(a) or 5.3(a). By the same token,if a manager-supervisor superviseswell under a bad set of policies andprocedures, that lawyer should besubject to discipline for violatingRule 5.1(b) or 5.3(b). If a lawyer ina firm engages in misconduct that

ETHICS CURBSTONE continued from page 19



RG-03.14_RG 09.05 3/11/14 11:43 AM

could likely have been avoided hadreasonable management measuresbeen in place, firm managers couldbe subject to discipline as bad man-agers, but not vicariously as thoughthey had directly committed themisconduct. Presumably, the disci-plinary sanction for inadequatemanagement measures would be

calibrated to the criticality of theconduct that would be preventedby reasonable management.

Lawyer-supervisors

Supervisory duties are cap-tured in Rules 5.1(b) (supervisionof lawyers) and 5.3(b) (supervisionof nonlawyers). Here, too, the

structure is parallel. Lawyers whoare direct supervisors “shall makereasonable efforts to ensure” thatlawyer-supervisees will conform tothe Rules of Professional Conductand nonlawyer-supervisees willconduct themselves compatiblywith lawyerly professional obliga-tions. Virtually every lawyer is asupervisor of at least one person –typically the assistant who does the lawyer’s administrative work.(Once upon a time, we called themlegal secretaries.) Some lawyerssupervise many other lawyers ornonlawyers. In larger law firms,there can be layers of supervisionwhere, for example, a lawyer super-vises other lawyers who supervisenonlawyers.

The gist of Rules 5.1(b) and5.3(b) is that those supervisorsmust do a reasonable job of super-vising to guard against their directsupervisees engaging in conductthat would violate the Rules ofProfessional Conduct. This doesnot create strict vicarious account-ability. Instead, the lawyer who fallsshort as an inadequate supervisorshould be disciplined for that fail-ing, not directly for the poorlymanaged supervisee’s conduct.

Even with good supervisorysystems and good actual supervi-sion, there is no guarantee thatsupervisees will conform. If thatwere the standard, every time alawyer or nonlawyer engaged inmisconduct, his or her supervisor

ETHICS CURBSTONE continued from page 21


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would be disciplined for being abad supervisor. A rogue superviseeis always capable of engaging inmisconduct no matter how atten-tive his or her supervisor might be.The ethical duty for supervisors isto act reasonably. When supervi-sors don’t supervise and, as a consequence, a direct superviseeengages in misconduct that ade-quate supervision would likely have prevented, supervisoryaccountability through discipline is a possibility.

Subordinate lawyers

Now let’s look at the flip sideof the coin. What about the super-visee? Nonlawyer supervisees don’tneed to worry. They are immunefrom discipline as lawyers. Strikethat; they do need to worry becausethey can be fired.

Subordinate lawyers will generally be accountable for theirown conduct, even if they weredirected to engage in the conductby a superior. Rule 5.2(a). There is no I-was-just-following-ordersdefense.

Ah, but there is an importantexception. “A subordinate lawyerdoes not violate the Rules ofProfessional Conduct if that lawyeracts in accordance with a superviso-ry lawyer’s reasonable resolution ofan arguable question of profession-al responsibility.” Rule 5.2(b). If itis a judgment call and the subordi-nate lawyer yields to the judgmentof his or her supervising lawyer, thesubordinate lawyer gets a pass evenif the supervisor gets it wrong.

What’s the lesson here? If youare a subordinate lawyer and getinto a difficult ethical situation,reach out for help. Do not yieldunquestionably to guidance from asupervisor. The supervisor might bewrong. You should push back whenappropriate and even refuse or goto a higher authority if you believeyour supervisor is dead wrong. But

if, in the end, the point can be rea-sonably argued both ways, the sub-ordinate lawyer is free to yield tothe supervisory lawyer’s resolutionof the matter.

But what about the supervisor?Well, if the supervisor gets the rea-sonably arguable point wrong anddirects the subordinate lawyer howto act, the supervisor could, at leastin theory, be accountable in disci-pline for having made the wrongdecision. We have already seen thata lawyer who orders the specificconduct of another that violates the Rules of Professional Conductis vicariously responsible for thatconduct. Rule 5.1(c)(1). Thus, wecould have the unusual situationwhere the subordinate lawyer isspared while the supervisory lawyeris led to the figurative gallows. I amsure you share with me the hopeand expectation that our friends at the Disciplinary Commissionwould not use the stick of lawyerdiscipline to take out after a super-visory lawyer who happens to makea judgment call wrong when thequestion itself was arguable enoughto spare the subordinate lawyer

from responsibility under Rule5.2(b). Regardless of the probabilityof actual discipline, this illustratesthe force behind the rules govern-ing supervisory responsibility.

ConclusionThe responsibilities imposed

by the Rules of ProfessionalConduct for reasonable law firmmanagement and supervision arereal. When managers or supervisorsdirect subordinate lawyers how to act, they can be held directlyaccountable for those acts as if they had acted directly. In addition,failures in managerial and supervi-sory roles create risks of lawyer discipline, not vicariously for thebad things that might happen in the absence of good managementor supervision, but for failing toreasonably carry out managerialand supervisory responsibilities. �


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The authors wish to thank D.C. SuperiorCourt Judge Herbert B. Dixon Jr., whomaintains a two-way street of informa-tion sharing with us on this subject.

It was inevitable that, afterlawyers flocked to social media, judges would follow.

Unsurprisingly, stories of judicialmisconduct are beginning toappear. But let us begin with thebiggest news story of late involvingjudges and social media.

ABA Formal Opinion 462

In the most striking recentdevelopment, the American BarAssociation issued Formal Opinion462 on Feb. 21, 2013, http://tinyurl.com/ABA-Formal-Opinion-462. While it was notgroundbreaking, it certainly reaf-firmed the general trend amongstates that had looked at the impli-cations of judges using socialmedia.

The fundamental conclusionwas: “A judge may participate in

electronic social networking, but as with all social relationships andcontacts, a judge must comply withrelevant provisions of the Code ofJudicial Conduct and avoid anyconduct that would undermine the judge’s independence, integrity,or impartiality, or create an appear-ance of impropriety.” The opinionnotes that it does not cover blog-ging, participation in e-discussionlists and message boards and inter-active gaming.

Judges need to be mindful that their conduct should promoteconfidence in the judiciary, whichmeans they need to realize thatwhatever they post might wind upalmost anywhere. And they areurged to avoid establishing socialmedia relations with people or enti-ties where it might be thought thatthose contacts are in a position toinfluence the judge.

As the opinion notes, the tricki-est part thus far has been determin-

ing whether judges may “friend”lawyers – and the states have vary-ing opinions on this. If they dohave lawyers who are social mediafriends, must they disclose that fact?Context is important here – is theretruly a significant relationship? Isthere anything about the relation-ship that would suggest any con-nection to a particular case? Theopinion suggests that the affirma-tive need to disclose, whether therelationship is with an attorney,party or witness, would probably be rare.

If common sense dictates it, a judge may decide to disclose thatthe judge and a party, a party’slawyer or a witness have a socialmedia connection, but that thejudge believes the connection has not resulted in a relationshiprequiring disqualification.Obviously, the judge is not com-pelled to search through all socialmedia relationships for each case to determine whether a relationshipmight exist.

Truly, the essence of the four-page opinion is simply this: Be mindful of the existing rulesregarding judicial ethical conductand how they might apply to socialmedia. If you had to boil it down to three words, it might be: “Usecommon sense.” Then again, com-mon sense isn’t all that common, as some judges have proven.

The 2012 CCPIO report

The Conference of Court PublicInformation Officers released itsthird report on New Media’s Impacton the Judiciary on Aug. 2, 2012.According to the findings, 46.1 percent of judges use social media,with 86.3 percent of that numberusing Facebook and 20.6 percentusing LinkedIn.

Elected judges are more likely to use social media though thestudy does not say why. We assumethat social media elevates their

ATT

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The perils of social media for judgesBy Sharon D. Nelson and John W. Simek


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public profiles and permits them tosolicit contributions, either directlyor by publicizing events at whichmonies are raised.

Asked to react to the statement,“Judges can use social media profilesites, such as Facebook, in theirprofessional lives without compro-mising professional conduct codesof ethics,” more than 45 percentstill disagree. But the number ofjudges who agreed with that state-ment has more than doubled sincethe 2010 survey, suggesting thatjudges are beginning to warm to the notion of participating in socialmedia.

In a similar fashion, judges indi-cated that they were also warmingto the use of new technologies inthe courtroom. They are also verymuch aware of how much socialmedia impacts jurors: More thanhalf (60 percent, up 4.5 percentfrom 2010) of judges report routine juror instructions thatinclude some component aboutdigital media use during trial. Now that’s an amazing shift in numbers!

Judicial misadventures with social media

A North Carolina judge wasreprimanded in 2009 when thejudge “friended” an attorney onFacebook while he was presidingover a child custody case in whichthe attorney represented the father.There was posting about whetherthe father was having an affair,which led to the judge’s post that he “had two good parentsto choose from” and the lawyer’sresponse: “I have a wise judge.”

In January of 2013, Texas Judge Lee Johnson posted on hisFacebook account about a starTexas A&M quarterback who wasticketed for speeding – the judgehad graduated from a rival univer-sity. Perhaps chastised for the post-ing, Johnson then posted, “I meant

to say ‘allegedly’ speeding, my bad.”The city manager apologized tofootball star Johnny Manziel andcalled the posting “insensitive andinappropriate.” The judge has alsoreached out to apologize, and aninvestigation into the judge’s con-duct is underway. And “my bad?”Seriously?

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Online application now available for bar exam

The Indiana Supreme Court is pleased to announce the State Board of LawExaminers (BLE) now has an online application process through a BLE

portal. Previously, the application process included a series of forms that appli-cants needed to download from the website and send to the Board. The onlineapplication is available for applicants interested in taking the July 2014 exam.

The State Board of Law Examiners is a Supreme Court agency and isresponsible for the admission of attorneys, the certification of legal interns, andthe formation and renewal of professional corporations, limited liability compa-nies, and limited liability partnerships for the legal profession. Starting in July1931, the Supreme Court adopted rules regulating the admission to the practiceof law in Indiana. These laws require applicants to take an examination. The barexam is administered twice a year with about 850 students total taking the test.

The new electronic bar admission portal is part of a software package thatdigitizes and automates the entire bar admission process. ILG InformationTechnologies provided the upgrade, which was paid for by bar admission fees,not state tax money.

The transition to the new site will include two phases with bar exam andlegal internships available online now. Corporations, foreign licenses and busi-ness counsel licenses are scheduled to be online this month.

Users can visit the new portal by going to courts.in.gov/ble. Any personneeding assistance is welcome to contact BLE staff at 317/232.2552. �

talked about her case, he visited herapartment, he advised her on casestrategy, and he released her onpersonal recognizance. When thedetails of the relationship becamepublic, the judge resigned.

Judicial misconduct doesn’thave to take place on social mediato find its way there. In our era,judicial misconduct such as textingand adultery may find its way ontomultiple social media platforms. Go to YouTube and search onJudge Wade McCree, and you’ll see what we mean. Don’t do this at work!

What we have seen so far is like-ly only the tip of an ugly icebergsince it often takes a while for mis-conduct to come to light. As moreand more judges board the socialmedia train, we will probably seeincreasing news reports of judicialmisconduct. �Sharon D. Nelson and John W. Simekare the president and vice president,respectively, of Sensei Enterprises, Inc., a legal technology, information securityand digital forensics firm based in Fairfax, Va., 703/359-0700, www.senseient.com.

© 2013 Sensei Enterprises, Inc.

JUDGES & SOCIAL MEDIAcontinued from page 27


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The Indiana Supreme Courtissued nine opinions in the month of November,

including four civil matters that aresummarized below. The SupremeCourt additionally granted transferto four civil matters, which are alsosummarized in this article. For themonth of November, the IndianaCourt of Appeals issued 16 pub-lished civil opinions, several ofwhich are highlighted herein. The full text of all Indiana appellatecourt decisions, including thoseissued not-for-publication, are available via Casemaker atwww.inbar.org or the IndianaCourts website, www.in.gov/judiciary/opinions.

INDIANA SUPREME COURT

Local legislativebody does not haveto adopt Indiana’sPublic-PrivateAgreements Statutebefore taking stepsprovided for in the Act

In Kitchell v.Franklin, 997 N.E.2d1020 (Ind. 2013), theCourt assumed juris-diction over the case under IndianaAppellate Rule 56(A)and held thatIndiana’s Public-Private AgreementsStatute (the “Act”)does not require alocal legislative bodyto first adopt the Actbefore it may issue arequest for proposalsor begin contractnegotiations as pro-vided for under theAct. Among otherthings, the Act permits

agreements between a governmen-tal body and a private contractor toconstruct, operate and maintain apublic facility. In Kitchell, the Cityof Logansport passed an ordinanceauthorizing its mayor to enter intoa memorandum of understandingand negotiate an agreement with a private contractor to replace anexisting coal-powered electric facili-ty with one that will generate elec-tricity primarily through refuse-derived fuels. That same day, theCity passed a resolution adoptingthe Act. Soon thereafter, a city resident filed a petition, seeking a declaration that the ordinancewas invalid because the City failedto adopt the Act before passing the ordinance.

The trial court dismissed the resident’s petition under Rule 12(B)(6), and the IndianaSupreme Court agreed, holdingthat “nowhere does the Act requirea political subdivision to ‘adopt’ theAct before taking any further actionconsistent with the Act. A readingof the Act as a whole indicates thatit is designed to promote economicdevelopment, which is executed in a way that is transparent andopen to public input and scrutiny.The record before us reflects thatthe City complied with the Act inevery particular.” (emphasis inoriginal)

Issue regarding service of process on resident of Italy remanded to trial court for further proceedings

In Zavodnik v. Rinaldi, 997N.E.2d 1044 (Ind. 2013), the Courtissued a per curiam opinion onwhether the appellant/plaintiff hadshown that he had made successfulservice of his complaint on thedefendant/appellee, a resident ofItaly. The trial court dismissed thecomplaint under Trial Rule 41(E),and the Court of Appeals affirmedon other grounds. The Indiana

Supreme Court granted transfer,reversed the trial court’s order of dismissal “[u]nder the uniquecircumstances presented” and“remand[ed] to the trial court forfurther proceedings, without preju-dice to dismissal under Trial Rule41(E) if warranted after furtherconsideration.”

While a revocable trust is revocable, the trustee of a revocable trust only owes duty to settlor and not to trust’s remainder beneficiaries

In Fulp v. Gilliland, 998 N.E.2d204 (Ind. 2013), the Indiana Su-preme Court held, as an issue offirst impression, that “while a revo-cable trust is revocable, the trusteeonly owes a duty to the settlor” andowes no duty to the remainder ben-eficiaries. In Fulp, Ruth Fulp placedher family farm in a revocable trust,reserving the right to revoke oramend the trust and to use its assets– with any remaining trust assetsgoing to her three children uponher death. A few years later, shedecided to sell the farm to her son,Harold Jr., for a low price to pay forher retirement-home care and tokeep the farm in the family. Ruth’sdaughter, Nancy Gilliland, arguedthat a bargain sale would breachRuth’s fiduciary duty to her chil-dren and deprive Nancy of “hershare” of the trust. The Court disagreed with Nancy and held that while a trust is revocable, thetrustee’s duty is only to the settlor,and not to the remainder beneficia-ries, because if the trustee also had aduty to the remainder beneficiaries,the trustee’s rights and dutieswould conflict because the trusteewould then have a duty to preventhim/herself from revoking thetrust. The Court found support for this holding from the UniformTrust Code and other jurisdictionsacross the country. The Court also

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11/1

3Appellate civil case law update

By Curtis T. Jones and John Z. Huang


John Z. HuangBose McKinney & Evans LLP


Curtis T. JonesBose McKinney & Evans LLP


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noted that the Indiana Legislature’srecent amendment to the IndianaTrust Code “declare[s] the samerule we announce today.”

The Court reversed the judg-ment of the trial court and con-cluded that “under the terms of theTrust and the [Indiana] Trust CodeRuth owed her children no fiducia-ry duties and was free to sell herfarm at less than fair market value[to Harold Jr., her son] ... thatHarold Jr. is therefore entitled tospecific performance ... [and] thatRuth did not effectively amend theTrust by selling the farm.”

Evansville Police Department is immune, while IndianaDepartment of Child Services is not immune, for alleged mishandling of child abusereports

In F.D. v. Indiana Departmentof Child Services, 1 N.E.3d 131 (Ind.2013), parents, individually and on behalf of their children, broughtan action against the IndianaDepartment of Child Services(“DCS”) and the Evansville PoliceDepartment (“EPD”), alleging mis-handling of child abuse reports.Specifically, the plaintiffs contend-ed that DCS was negligent in failingto perform its statutory duty, pur-suant to Indiana Code Section 31-33-18-4, to notify the plaintiffs ofthe alleged molestation of one oftheir daughters by a nephew.Additionally, plaintiffs argued thatEPD was similarly negligent in fail-ing to notify the plaintiffs and fornot pursuing separate chargesagainst the nephew for the molesta-tion of their daughter. The trialcourt granted summary judgmentin favor of both defendants ongrounds of immunity under bothIndiana Code Section 31-33-6-1(immunity from civil and criminalliability for reporting alleged childabuse) and Indiana Code Section34-13-3-3 (immunity of a govern-

mental entity or employee, a provi-sion of the Indiana Tort ClaimsAct).

The Indiana Supreme Courtdisagreed as to DCS and held that(1) DCS was not entitled to immu-nity under the Indiana Tort ClaimsAct (specifically Indiana CodeSection 34-13-3-3(6)) because contrary to the plain language

and meaning of that provision, theplaintiffs’ “loss [here did not] resultfrom ... [DCS’] initiation of a judi-cial or an administrative proceed-ing” against their nephew for themolestation of their son; and (2)DCS was also not entitled to immu-nity under Indiana Code Section31-33-6-1 (child abuse reporting



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statute) because of its inaction withrespect to the separate report ofmolestation as to the plaintiffs’daughter. As to EPD, the Courtheld that (1) under the law at thetime, EPD did not have a duty to notify the plaintiffs of theirnephew’s admission to molestationof their daughter; and (2) EPD wasentitled to law enforcement immu-nity under Indiana Code Section34-13-3-3(8) for its decision not topursue separate charges against thenephew for the molestation of theplaintiffs’ daughter because EPDwas “attempting to sanction a viola-tion of the law” in its investigationof allegations that the nephew hadmolested the plaintiffs’ son.

INDIANA SUPREME COURTTRANSFER ORDERS

Marion Superior Court judicialpanel draws boundaries forCity-County Council districts

In Ballard v. Lewis, 49D12-1302-PL-005483 (Marion Sup. Ct. 2013), the plaintiffs were threeIndianapolis City-County Councilmembers who filed a complaint fordeclaratory, injunctive and other

equitable relief against the membersof the Marion County ElectionBoard, alleging that the Councilfailed to perform its legislative dutyto divide Marion County into 25single member districts during thesecond year after a year in whichthe federal census was conducted.Soon thereafter the mayor ofIndianapolis was granted leave to intervene in the case. The trialcourt granted the plaintiffs’ motionfor partial summary judgment anddenied the mayor’s motion forsummary judgment. It thenappointed a neutral master to assistthe court with drawing new districtboundaries and has since complet-ed this project. The IndianaSupreme Court has granted transfer.

Agency order declared voidbecause of failure to issueaccording to statutory timeframe

In First American TitleInsurance Company v. Robertson,990 N.E.2d 9 (Ind. Ct. App. 2013),a title insurer filed a verified peti-tion for judicial review and declara-tory relief against the Indiana

Insurance Commissioner, challeng-ing the Commissioner’s order set-ting an investigatory hearing on amarket conduct examination reportof First American. The trial courtdenied the insurer’s petition andthe Commissioner’s motion to dis-miss. The Indiana Court of Appealsheld that the Commissioner’s fail-ure to issue the order setting aninvestigatory hearing pursuant tothe timeframe outlined in IndianaCode Section 27-1-3.1-11 renderedthe order void. In addition, thecourt found that the IndianaAdministrative Orders & Pro-cedures Act (AOPA) does notrequire a judicial finding of preju-dice resulting from the agencyaction in order to award relief tothe aggrieved party, so long as thereis showing that the agency “actedwithout observance of procedurerequired by law and in excess of its statutory authority.” The Indiana Supreme Court has granted transfer.

A hit-and-run vehicle is considered an uninsuredmotor vehicle as a matter of law for purposes of uninsured motorist insurance coverage

In Robinson v. Erie InsuranceExchange, 991 N.E.2d 961 (Ind. Ct.App. 2013), an insured brought anaction against its automobile insur-er, seeking uninsured motorist cov-erage for damages resulting from a hit-and-run accident. The trialcourt granted summary judgmentfor the insurer. The Indiana Courtof Appeals reversed and held thatthe insured was entitled to unin-sured motorist coverage because a hit-and-run driver operates an “uninsured motor vehicle” as a matter of law. This was truebecause “as the driver who hit [theinsured] fled the scene, there wasno bodily injury liability bond orinsurance policy applicable with

RECENT DECISIONS 11/13 continued from page 31


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liability limits complying with[Indiana’s] financial responsibilitylaw available.” In addition, thecourt held that “as the driver whohit [the insured] could not be locat-ed, his actual insurance status is not controlling. ... He or she is to be considered uninsured.” The Indiana Supreme Court has granted transfer.1

INDIANA COURT OF APPEALS

Account debtor’s assurances can equal promissory estoppel

The Court of Appeals inSterling Commercial Credit-Michigan, LLC v. Hammert’s IronWorks, Inc., 998 N.E.2d 752 (Ind.Ct. App. 2013), held, as a matter of law, that promissory estoppelapplied where an account debtorhad provided verification andassurances that certain work per-formed was complete and acceptedand there were no encumbrances,claims or defenses to reduce thevalue of the assigned invoices. Indoing so, the court noted that ithad found no similar Indiana cases,but its result was consistent withsimilar case law from other juris-dictions.

Attorney fees awarded in discovery dispute concerning non-party request

International Business MachinesCorporation v. ACS Human Services,LLC, 999 N.E.2d 880 (Ind. Ct. App.2013), involved a discovery disputebetween a party in an underlyingcase with a non-party to that litiga-tion. The trial court ordered theparty to pay attorney fees and coststo the non-party related to discov-ery and production of the requesteddocuments and information.However, the trial court also grant-ed the party’s motion for sanctionsand ordered the non-party to payattorney fees and costs due to thenon-party’s unjustified failures or

delays producing the requested discovery prompting multiplemotions to compel. The Court of Appeals affirmed.

UIM claim not barred by contractual limitations period

In Wert v. Meridian SecurityIns. Co., 997 N.E.2d 1167 (Ind. Ct.App. 2013), an insured sued hisinsurance company, claimingunderinsured-motorist benefitsmore than two years after the acci-dent. The court held that becausethe contract required the insured tosettle or obtain a judgment beforefiling a lawsuit against his insurer,the applicable provisions in thecontract were in direct conflict and,thus, ambiguous.

Indiana Trial Rule 6(E) appliesto non-movant in summaryjudgment proceedings

In Boyd v. WHTIV, Inc., 997N.E.2d 1108 (Ind. Ct. App. 2013), atrial court denied a non-movant’srequest for extension of time torespond to a motion for summaryjudgment on the basis that therequested extension was not timelysubmitted. The Court of Appealsreversed, stating that Indiana TrialRule 6(E) extends the date by whichthe non-movant must file aresponse or request an extension oftime to respond to 33 days after ser-vice of the motion.

Border dispute decided by thedoctrine of title by acquiescence

In Garrett v. Spear, 998 N.E.2d297 (Ind. Ct. App. 2013), the Courtof Appeals affirmed the judgmentof a trial court. The Garretts andSpears are neighbors. A fence waserected in 1983 to divide the twoproperties. In 1996, the Spearsadded a garage and driveway uponthis boundary, which was not chal-lenged by the Garretts until 2010(27 years following the installation

of the fencing). In 2010, theGarretts obtained a survey of theproperty, which revealed that theSpears’ garage and the fence wereactually built upon the Garretts’property. The court held that thefence line boundary had beenestablished as the boundarybetween the Garrett property andSpear property by the doctrine oftitle by acquiescence. �1. The Indiana Supreme Court has also granted

transfer in the case of Front Row Motors, LLCv. Jones. There is no Indiana Court of Appealsopinion in this case, and our research showedno substantive public records as to the trialcourt proceedings. The Court of Appeals’docket shows that the court granted in partappellee Jones’ motion to dismiss and dis-missed the appeal with prejudice. AppellantFront Row Motors’ petition for rehearing wasthen denied. The Indiana Supreme Court’sdocket shows that the Court ordered Jones tofile his Appellee’s brief by Dec. 31, 2013, andordered Front Row Motors to file its replybrief by Jan. 21, 2014.

Curtis Jones is a partner at BoseMcKinney & Evans LLP in the firm’s litigation, insurance and appellategroups. While at Valparaiso UniversitySchool of Law, he served as executivesymposium editor for the ValparaisoUniversity Law Review, earned an hon-ors program scholarship, and served for a year in an externship with the Hon.Kenneth F. Ripple, United States Courtof Appeals, Seventh Circuit. Upon gradu-ating and prior to joining BME, Curtisserved as a judicial law clerk to JusticeTheodore R. Boehm on the IndianaSupreme Court. His email is [email protected].

John Z. Huang is an associate at BoseMcKinney & Evans LLP in the litigationand insurance groups. While at NotreDame Law School, he served as sympo-sium editor for the Notre Dame Journalof Law, Ethics & Public Policy, was aWhite Scholar, and served as president of the Public Interest Law Forum. Upongraduating and prior to joining BME,John served as a judicial law clerk toJustice Frank Sullivan Jr. on the IndianaSupreme Court, assistant litigation counsel with the City of IndianapolisOffice of Corporation Counsel, and staff attorney with the Indiana Depart-ment of Education. His email [email protected].


RG-03.14_RG 09.05 3/11/14 3:38 PM

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In December, the IndianaSupreme Court issued opinionsin two civil cases, summarized

below. The Supreme Court alsogranted transfer in two civil cases,summarized below. The IndianaCourt of Appeals issued a total of73 opinions in civil cases, including25 published opinions and 48unpublished opinions. Some of the Court of Appeals publishedopinions are summarized below.Full text of all Indiana appellatecourt decisions rendered duringDecember, including those issuednot-for-publication, are availablevia Casemaker at www.inbar.orgor on the Indiana Courts website,www.in.gov/judiciary/opinions.

SUPREME COURT OPINIONS

Indiana courts have broad discretion to account for SocialSecurity retirement benefits andhealth insurance premiums incalculating child support oblig-ations under Indiana’s ChildSupport Guidelines

In Johnson v. Johnson, 999N.E.2d 56 (Dec. 12) (David, J.), the Supreme Court addressed trialcourts’ breadth of discretion toaccount for Social Security retire-ment benefits and health insurancepremiums in calculating child support under the Indiana ChildSupport Guidelines.

In 2011, Eric Johnson filed a petition to amend the divorcedecree that arose from his 1994marriage to, and 1999 divorcefrom, Gillian Johnson. While married, Gillian and Eric had twochildren (the “Johnson Children”).Following their divorce, Gillianremarried and had another child.By 2011, Gillian was paying healthinsurance premiums for the John-son Children, as well as for herthird child, through a family healthinsurance plan, and Eric had retiredand was receiving Social Security

retirement benefits. In his petition,Eric sought, in part, a child supportcredit for the monthly benefitsGillian was receiving for theJohnson Children as a result ofEric’s Social Security. The partiesalso disagreed as to how Gillianshould be credited for the healthinsurance premiums that she waspaying on behalf of the JohnsonChildren.

Indiana’s Child SupportGuidelines permit a trial court to credit a parent’s child supportobligations for the cost of weeklyhealth insurance premiumsincurred, in whole or in part, by the parent on behalf of a child.See Guidelines 3(E)(2). The Guide-lines set forth a methodology for applying this credit, but alsoinstruct that unique circumstancesmay arise, and that in such situa-tions, it falls within the trial court’ssound discretion to determine the most appropriate manner in which to apply the credit. See Guidelines 7, cmt.

The Guidelines also permit acourt to credit a noncustodial par-ent for benefits the child is receiv-ing as a result of the noncustodialparent’s Social Security retirementbenefits, but this credit is not auto-matic. See Guidelines 3(G)(5). In Stultz v. Stultz, the IndianaSupreme Court held that such a credit is often not appropriate,but may be proper in some circum-stances, and the Court set forth atwo-step analysis for determiningwhether such a credit is appropriateand, if so, in what amount. 659N.E.2d at 128-30 (Ind. 1995).

In Johnson, the trial courtfound both credits to be appropri-ate. It first calculated the pro rataamount that Gillian was payingweekly for health insurance premi-ums for each of the JohnsonChildren under the family healthinsurance plan and credited thatamount to Gillian’s support obliga-

tions. The court then credited Eric’ssupport obligations for a portion ofthe benefits the Johnson Childrenwere receiving as a result of Eric’sretirement benefits. On appeal, the Court of Appeals reversed thetrial court’s order on both of theseissues, and the Indiana SupremeCourt granted transfer only on theissues of the trial court’s calculationand application of the credits forthe health insurance premiums and Eric’s retirement benefits.

The Indiana Supreme Courtacknowledged that trial courts may adopt different approaches tocalculating and applying a healthinsurance premium credit to childsupport obligations, and it affirmedthe trial court’s ruling on this issue.It instructed that “when the Guide-lines do not explicitly dictate abright-line procedure to be fol-lowed, our standard of review isflexible enough to permit the trialcourt judge to fashionchild support orders thatare tailored to the cir-cumstances of the partic-ular case before them andconsequently reflect theirbest judgment.”

As to the trial court’scredit determination con-cerning Eric’s retirementbenefits, the IndianaSupreme Court reiteratedits support for the two-step framework set forthin Stultz and counseledthat the application of thecredit cannot be subjectto a mechanical rule. TheCourt advised that a trialcourt does not abuse itsdiscretion in crediting a noncustodial parent’schild support obligationsfor Social Security retire-ment benefits if it takesan approach that isbetween the two extremes

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Appellate civil case law updateBy Jon B. Laramore and Stephanie L. Boxell

Stephanie L. BoxellFaegre Baker Daniels LLPIndianapolis, [email protected]

Jon B. LaramoreFaegre Baker Daniels LLPIndianapolis, [email protected]



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set forth in Thompson v. Thompson,868 N.E.2d 862 (Ind. Ct. App.2007), i.e., always applying a dollar-for-dollar credit for retirement ben-efits or never applying a credit forretirement benefits; the Court thenaffirmed the trial court’s applica-tion of the credit, finding that ithad employed a flexible methodol-ogy for calculating the credit thatfell somewhere within these twobounds.

A dispute over contract language is mooted once contested language is amendedto eliminate the controversy

In Indiana Gas Co. v. IndianaFinance Auth., 999 N.E.2d 63 (Dec.17) (Dickson, C.J.), the SupremeCourt ruled unanimously that adispute over contract language wasmoot because the contract had beenamended to eliminate the contro-versy.

The General Assembly autho-rized the State to contract for thepurchase of substitute natural gasto be delivered to retail customers,with the contract subject toapproval by the Utility Regulatory

Commission. The State signed acontract with Indiana Gasification,LLC, to provide the natural gas, and the Commission approved it.Utilities opposing this arrangementsought judicial review of theCommission’s approval.

The Court of Appeals ruledthat one of the definitional provi-sions of the contract was inconsis-tent with the authorizing statute.Because the contract had a non-severability clause, the Court ofAppeals’ ruling invalidated the con-tract. The State agreed with IndianaGasification promptly to amend the contract to make the definitionconsistent with the statute, but theCourt of Appeals denied rehearing.

The Supreme Court grantedtransfer and ruled that the issue was moot. It reasoned that when it granted transfer, the Court ofAppeals’ decision was automaticallyvacated, allowing the parties theopportunity to amend the contract.The Supreme Court further ruledthat the amendment brought thecontract into conformity with thestatute. Because the contract wasconsistent with the statute, the

objecting utilities’ claim was moot,ending the controversy.

The Supreme Court concludedthat because the dispute no longerexisted, the Utility RegulatoryCommission’s decision approvingthe contract had no flaw, and theCourt affirmed the Commission’sorder approving the contract.

TRANSFER ORDERS

The Indiana Supreme Courtgranted transfer in two civil cases in December.

Lyons v. Richmond Comm.Schools, 996 N.E.2d 1280 (Ind. Ct.App. 2013) (addressing whether thetort claims brought by the parentsof a girl who choked to death in a school cafeteria were brought in a timely fashion and whether theycould maintain a civil rights claimthat the school violated a specialduty to their daughter).

Sargent v. State, 985 N.E.2d1108 (Ind. Ct. App. 2013) (address-ing whether the State demonstrateda sufficient nexus between theunderlying crime and propertyseized and whether the bankruptcyexemptions mandated by Article 1,Section 22 of the Indiana Constitu-tion apply in forfeiture proceed-ings).

SELECT COURT OF APPEALS CASES

Marriage validly entered intounder Indiana law is not voidwhen one marital partner legally changes his or her gender

Indiana Code §31-11-1-1 pro-hibits marriage between two per-sons of the same gender; it alsovoids any marriage between twopersons of the same gender, includ-ing one that is lawfully solemnizedin another state. Interpreting thissection, the Court of Appeals heldthat a marriage lawfully enteredinto by a man and woman and



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solemnized in Indiana is not auto-matically void when one of thepartners legally changes his or hergender, which results in both mem-bers of the married couple being ofthe same sex, because Indiana Code§31-11-1-1 applies only to same-sex marriages entered into inIndiana or solemnized in anotherstate. In re Marriage of Davis &Summers, 1 N.E.3d 184 (Dec. 20)(Mathias, J.).

Indiana Code §34-51-3-6 does not empower the State to intervene in otherwise private actions to preserve the State’s interest in a punitivedamages award

Indiana Code §34-51-3-6 splits recovery of a punitive dam-ages award between the party towhich the punitive damages areawarded and the state of Indiana.Interpreting this statute, theIndiana Court of Appeals held thatthe State’s interest in its portion of a punitive damages award vestsonly upon actual payment of theaward to the trial court clerk andthat the trial court clerk is the “onlyentity with a duty directly to theState.” Until such an award is actu-ally paid to the clerk, the State’sinterest in punitive damages ismerely an expectancy interest that may be vacated due to appealor agreement of the parties to the suit. Weinberger v. Estate ofBarnes, 2 N.E.3d 43 (Dec. 18)(Friedlander, J.).

Trustee must intervene in trial court or move for stay to preserve right to appeal orderterminating trust

Under Indiana law, a trustee’spowers and office generally termi-nate upon termination of a trust,except the powers may continue for a reasonable time, in a restrictedmanner, to permit winding up the trust’s affairs. To preserve the

trustee’s right to appeal, in its rep-resentative capacity, a trial court’sorder terminating a trust, thetrustee must move to stay the trialcourt’s order. To appeal such anorder in its individual capacity, thetrustee must intervene at the trialcourt. Where the trustee fails tomove to intervene in its individualcapacity, and likewise fails to movefor a stay of a trial court’s order terminating the trust, the trusteedoes not have standing, in either itsindividual or representative capaci-ty, to appeal the trial court’s orderterminating the trust. Old Nat’lBancorp d/b/a Old Nat’l Trust Co. v. Hanover College, 999 N.E.2d 463(Dec. 5) (Darden, S.J.).

Indiana law permits trial court to award attorney fees to prevailing party where losing party brought or litigatedfrivolous, unreasonable orgroundless claim

Although Indiana law generallyrequires each party to pay its ownattorney fees absent a contrary lawor agreement, Indiana Code §34-52-1-1 permits a trial court to

award attorney fees to a prevailingparty as part of that party’s costswhere an opposing party litigatedthe action either in bad faith orafter the party’s claims or defensesbecame clearly frivolous, unreason-able or groundless. In determiningthe applicability of this exception,the Indiana Court of Appeals heldthat a trial court may considerevents that occurred before the liti-gation that form part of the legaland factual basis for, or argumentsadvanced in support of, the alleged-ly improper claim(s) or defense(s).Ind. High School Athletic Assoc., Inc.v. Schafer, 1 N.E.3d 164 (Dec. 17)(Shepard, Sr.J.). The court furtherinstructed that the trial courtshould evaluate the exception’sapplicability in the context of thelaws, facts and precedent that werein effect at the time that the alleged-ly improper claim was advanced or litigated. Finally, the Court ofAppeals held that a claim or defenseis “‘groundless’ if no facts existwhich support the legal claim pre-sented by the losing party” and is“‘unreasonable’ if, based on the



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totality of the circumstances,including the law and the factsknown at the time of filing, no rea-sonable attorney would considerthat the claim or defense was worthy of litigation.”

Indiana follows Restatement’sapproach to demonstratingintent in the context of tortiousinterference with contract claim

In addressing an ex-partner’sclaim for tortious interference withcontract due to her terminationfrom the legal partnership of which she had been a member, the Indiana Court of Appeals foundthat a partnership agreement inwhich the partner’s status as a partner is terminable at the will ofthe majority constitutes an at-willemployment agreement. Drake v. Dickey, 2 N.E.3d 30 (Dec. 11)(Najam, J.). The court then adopt-ed the Restatement’s explanation of intent in the context of a tortiousinterference with contract claim,which is set forth in the Restate-ment (Second) of Torts §766, comment j, and held that the intent required to support a tor-tious interference with contractclaim may be proved throughdemonstrating that the interfererspecifically intended to induce abreach of contract. It may also beproved by showing that the inter-ferer knows, or is substantially

certain, that such a breach willresult from the interferer’s actions.Finally, the court held that a client’sright to terminate an attorney-client relationship does not includethe right to interfere with an attorney’s partnership agreement;in any context, an attempt to com-pel settlement by prompting a liti-gant’s employer to terminate thatlitigant’s employment if he or sherefuses to settle does not constitutea “legitimate business purpose” forthe purposes of a tortious interfer-ence with contract claim.

Upon showing sufficient evidence, a spouse who abandons marital residence and is living in an adulterousrelationship when other spousedies cannot inherit by intestacy

In Matter of Estate ofHannebaum, 999 N.E.2d 972 (Dec. 19) (Shepard, Sr.J.), theCourt of Appeals applied the rulethat a spouse who abandons themarital residence and is living in an adulterous relationship when theother spouse dies cannot inherit byintestacy, examining what evidenceis sufficient to prove the adultery.The Court of Appeals ruled that inthis case three items taken togetherwere sufficient to support the inference of a sexual relationship,although none might be sufficientby itself: evidence that the spouse



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who left spent some nights alonewith her new boyfriend in hishome; her own confirmation that she began to date her newboyfriend after she left her hus-band; and a private detective’sobservation that she entered herboyfriend’s home by punching acode to enter through the garage.The Court of Appeals affirmed thetrial court’s ruling that the spousewho left could not inherit via intestacy.

Once a municipality has exercised right to authorize provision of sewer services in an area outside its bound-aries, another municipalityloses its right to do the same in the same area

The Court of Appeals exam-ined what happens when two dif-ferent municipalities authorize pro-vision of sewer service outside theirboundaries, and the areas wherethey furnish services overlap oneanother. Town of Newburgh v.Town of Chandler, 999 N.E.2d 1015(Dec. 23) (Shepard, Sr.J.). A statuteallows municipalities to providesewer service in the area in a four-mile ring outside their boundaries.Newburgh passed an ordinanceallowing this service, and Chandlerdid so six weeks later, with the twomunicipalities’ four-mile ringsoverlapping one another in someplaces. After analyzing the statutoryframework and case law, the Court of Appeals ruled that onlyNewburgh could supply sewer service in the overlap area becauseit passed its ordinance first, and therelevant statutes give it authority to provide sewer service in its four-mile zone to the exclusion of othermunicipalities that pass their ordi-nances later.


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Insurance policy denying coverage for damages caused by intentional acts applies to allinsureds, whether or not eachinsured participated in theintentional act resulting in thedenial of coverage

Deeter v. Indiana Farmers Mut.Ins. Co., 999 N.E.2d 82 (Dec. 4)(Baker, J.), addressed an issue offirst impression, whether an insur-ance policy excluding coverage forintentional damage is enforceablewhen only one of two insuredscommits the intentional act and the other insured is innocent. Inthis case, one spouse intentionallyset the home on fire after learningthat the other spouse was having an affair. The non-firebug spouseasserted the innocent spouse rule,arguing that he should not be pre-cluded from collecting because hedid not participate in setting thefire. The Court of Appeals ruledthat “when an insurance companyhas included an explicit exclusionin its policy to cover loss thatresults from an intentional act by a co-insured, we will respect theparties’ right to contract andenforce that exclusion.”

An independently elected official’s right to prescribeemployment rules and makeemployment decisions is notsubject to the terms of a collec-tive bargaining agreement

In Local 1963, United Auto.,Aerospace & Ag. Implement Workersof Amer. v. Madison County, 999N.E.2d 949 (Dec. 18) (Riley, J.), theCourt of Appeals analyzed claimsby a union to enforce provisions of a collective bargaining agreementit signed with the county commis-sioners and county council. Theagreement purported to govern theemployment of persons employedby independently elected officials,including the county assessor and

county recorder. New occupants of those two offices disciplined andterminated certain employees in amanner the union believed incon-sistent with the agreement. Theassessor and recorder agreed thatthe collective bargaining agreementdid not bind them because theirstatutory authority to hire, fire andmanage employees could not beimpeded by an agreement adoptedby the county commissioners and county council. Analyzing theapplicable statutes, the Court ofAppeals ruled that the assessor andrecorder are the employers of thosewho work in their offices; while thecouncil and commissioners mayprescribe certain general employ-ment rules (such as through anemployee handbook), the electedofficials retain authority to hire, fire and discipline unless a statuteexplicitly authorizes the commis-sioners to do so or the very rarecase when commissioners make an employee in a separate officea county employee “in the publicinterest,” such as to temporarilyreplace an elected official who dies. �Jon Laramore is co-leader of the appellateadvocacy practice at Faegre BakerDaniels LLP. He is a member of theAmerican Academy of Appellate Lawyers,former chief legal counsel to IndianaGovernors O’Bannon and Kernan, and a member of the Indiana Board of LawExaminers.

Stephanie Boxell is an associate in thebusiness litigation practice at FaegreBaker Daniels LLP, where she litigatescomplex business and product liabilitydisputes. She is a Phi Beta Kappa gradu-ate of Indiana University, a summa cumlaude graduate of the McKinney Schoolof Law, and a former judicial extern forU.S. District Judge William T. Lawrence.



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In November, the IndianaSupreme Court issued opinionsinvolving warrantless arrests,

Miranda violations, dog sniffs andjury instructions on self-defense,while the Court of Appealsaddressed a variety of issues,including bail alteration and the Sixth Amendment right to confrontation.

Constitutional violations: pre-Miranda questioning and detention based solely on untested informant’s tip

In Kelly v. State, 997 N.E.2d1045 (Ind. 2013), the IndianaSupreme Court reversed the denial of Danielle Kelly’s motion to suppress evidence found in awarrantless search of her vehicleand statements she made to police.Officers responded to a tip from a concerned citizen, CarolynGoodwin, who set up a sting opera-tion to catch an alleged drug dealer,Lamont Day. Goodwin had neverbeen a confidential informant, andshe did not provide the alleged drugdealer’s name or physical descrip-tion of him or his car, but that manturned out to be Day. Kelly rodewith her cousin, Day, to Goodwin’shome. Upon their arrival, policeordered Day and Kelly out of thecar at gunpoint, handcuffed Kelly,and questioned her about whethershe knew about cocaine in the car.Id. at 1048-49.

Reversing an unpublishedCourt of Appeals’ opinion, theSupreme Court held that the scopeof the encounter was more than aTerry stop – it was an arrest requir-ing probable cause. The policenever corroborated Goodwin’sclaim that Day had cocaine andintended to sell it. Moreover,Goodwin never told the police any-thing about Kelly. Id. at 1052. Theofficers’ reliance on the untestedinformant’s uncorroborated reportabout a man coming to sell cocaine

was not sufficient. “[S]usceptibilityto prosecution for false reporting… or, similarly, for participation in the criminal enterprise – is a relevant factor in [the] analysis, butis not enough on its own to infuseGoodwin’s statements with reliabil-ity sufficient to support a finding of probable cause.” Id. (citingKellems v. State, 842 N.E.2d 352(Ind. 2006), modified on reh’g, 849N.E.2d 1110 (Ind. 2006)). Thus, the officers lacked probable causeto support the warrantless seizureand search of Kelly and her vehicle.

The Court also reversed thedenial of Kelly’s motion to suppressinculpatory statements she made to the police, which were obtainedthrough the “question first, warn later” tactic disapproved in Missouri v. Seibert, 542 U.S. 600 (2004). Seibert involved policedeliberately not giving Mirandawarnings until getting incriminat-ing statements from a suspect, thengiving the warnings to get the state-ments again.

Here, the State conceded that the statements Kelly madebefore a police officer read her theMiranda warning should be sup-pressed, but argued that her post-Miranda statements were admissi-ble under Oregon v. Elstad, 470 U.S.298, 318 (1985). Id. at 1053. TheCourt disagreed, noting that Kelly’spre-warning statement regardingknowledge of cocaine in her vehiclewas more specific than her post-warning statement and that bothstatements concerned the samesubject, were made in the samelocation, mere minutes apart, andin response to the same officer. Id.at 1054. Most significantly, the offi-cers explicitly referred to Kelly’spre-warning admission three timesduring the post-warning interroga-tion. Under these circumstances,the Court concluded, as in Seibert,“that a reasonable person in thesuspect’s shoes would not have

understood [the Miranda warning]to convey a message that sheretained a choice about continuingto talk.” Id. at 1055 (quotingSeibert, 542 U.S. at 617).

Supreme Court clarifies jury instructions in self-defense cases

In cases involving self-defense,defendants have often tendered juryinstructions assessing the self-defense claim from the perspectiveof the accused at the time of theincident. See, e.g, French v. State,403 N.E.2d 821, 825 (Ind. 1980).But in Washington v. State, 997N.E.2d 342 (Ind. 2013), the IndianaSupreme Court clarified that the determination of self-defenserequires both a subjective andobjective view of the facts, ratherthan merely the defendant’s per-ceptions. To that end, the Courtconcluded that the Indiana PatternJury Instruction on the defense ofanother appropriately balances thejury’s duty to consider the defen-dant’s perception of danger againstthe reasonableness of his percep-tion. See Shaw v. State, 534 N.E.2d745, 747 (Ind. 1989), which clari-fied French but did not impliedlyoverrule it.

In this case, Washington’s tendered instruction correctly stated that the jury was to considerhis perception of the dan-gerousness of the situa-tion, but it did not statethat his perception musthave been reasonable.Washington v. State, 997N.E.2d at 350. Thus, thetrial court did not abuseits discretion in refusingto give it. Although thepattern instruction con-tinues to serve as “the pri-mary guide” for this issue,trial courts have discre-tion to “augment the

CRIM

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TES 11/13Miranda violations, dog sniffs, other holdings

By Jack Kenney

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



RG-03.14_RG 09.05 3/11/14 11:43 AM

pattern instructions whenever theydeem appropriate.” Id.

In Russell v. State, a companioncase addressing the same instruc-tion issue, the Court likewise concluded that Russell’s tenderedinstruction incorrectly limited thejury’s consideration to his subjec-tive belief without assessing itsobjective reasonableness. 997N.E.2d 351 (Ind. 2013).

Dog sniffs during traffic stops

A reasonable narcotics dogsweep is not a “search” for purposesof the Fourth Amendment orArticle 1, §11 of the IndianaConstitution. However, the deten-tion that accompanies a dog sweepmay be unconstitutional if longerthan necessary to complete the offi-cer’s work related to the traffic stopor if not based on reasonable suspi-cion of criminal activity. Two casesin November examined whetherdog sniffs used during traffic stopswere up to snuff.

In Austin v. State, 997 N.E.2d1027 (Ind. 2013), the police made a traffic stop of Patrick Austin, a truck driver. When the officerexplained to Austin that his log-books were incomplete, Austin randomly filled in future dates. In addition, Austin could not give a name or location of a trailer partsstore, which he claimed was his destination. Id. at 1032. The officerlearned through a DEA databank

search that Austin had beeninvolved in a bulk-cash seizure of$1 million in 2009. After Austinrefused to consent to a search, theofficer completed the traffic stopand let Austin drive away, butradioed to a canine officer up the road to survey Austin. Id. Thecanine officer stopped Austin afterobserving two additional traffic vio-lations. The officer observed thatAustin had failed to record the lasttraffic stop in his logbook. The offi-cer then conducted a canine sniff,which resulted in a hit. The policeobtained a warrant and foundalmost 90 pounds of cocaine. Id.

Distinguishing Quirk v. State,842 N.E.2d 334 (Ind. 2006), theCourt held that the canine searchwas supported by reasonable suspi-cion and the degree of intrusionwas less significant than in Quirk.The first officer’s action of lettingAustin go and waiting until theyhad an independent and valid rea-son to stop him again “exemplifiesthe balance between pursuing thelaw enforcement aim and protect-ing the constitutional rights of thesuspect … .” Id. at 1037. Thus, thestop and search of Austin’s truckdid not violate Article I, Section 11of the Indiana Constitution.

In contrast, the Court ofAppeals affirmed the grant of Molly Gray’s motion to suppressmethamphetamine found pursuantto a canine search in her case. Statev. Gray, 997 N.E.2d 1147 (Ind. Ct.App. 2013), trans. granted. TheIndiana Supreme Court has accept-ed transfer in Gray to give furtherguidance in canine sniff cases.

Gray was stopped for a trafficoffense late at night. Because theofficer had recently received infor-mation from another officer thatGray was involved in illegal nar-cotics activity, the officer post-poned the normal traffic stop pro-cedure of performing license andoutstanding warrant checks in

order to conduct a free-air caninesniff, which lasted two to six min-utes. Id. at 1150. After the dog alert-ed to the presence of drugs, a subse-quent search revealed methamphet-amine. The court concluded thatthe delay for the dog sniff amountsto an increase in the duration of the seizure for purposes outside thescope of the traffic stop. Id. at 1152.Thus, the dog sniff was not inciden-tal to the traffic stop. To hold oth-erwise would allow every trafficstop “to become an occasion to callin the dogs.” Id. (quoting Illinois v.Caballes, 543 U.S. 405, 422 (2005)(Ginsburg, J., dissenting)).

Moreover, the anonymous tipthat Gray was involved with illegalnarcotics did not constitute reason-able suspicion for the dog sniff evenunder the collective knowledgedoctrine. Id. at 1153-54. The tiplacked specifics and was from anunknown person. Thus, the dogsniff and subsequent search of theGray’s car violated the FourthAmendment.

No good cause for alteration of bail

In Cole v. State, 997 N.E.2d1143 (Ind. Ct. App. 2013), the trialcourt abused its discretion inincreasing Charles Cole’s bail from$2,500 to $10,000 sua sponte, with-out the State showing “good cause”for the increase as required by Ind.Code §35-33-8-5(a). After bondwas fixed at $2,500 surety duringCole’s initial hearing, his newlyappointed public defender request-ed a bond reduction, and the trialcourt at first denied the request. Id. at 1144. However, after counselpersisted, the court, without anyrequest from the prosecution andwithout any additional evidence insupport thereof, increased the bondto $10,000. Id. Both the trial courtand the prosecution were aware ofCole’s extensive criminal history,but the prosecutor repeatedly

CRIMINAL JUSTICE NOTES 11/13 continued from page 41


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declined to cross-examine him andrequested only that his bail not bereduced. Id. at 1146. Thus, the Statedid not make a showing of goodcause in support of an alteration of bail.

Legend used to guide interpretation of cell phonerecords not testimonial

In Everroad v. State, 998 N.E.2d739 (Ind. Ct. App. 2013), JosephEverroad was not denied his SixthAmendment confrontation rightswhen a prosecutor’s investigatortestified regarding cell phonerecords that placed Everroad nearthe scene of a robbery. The witnessreferred to a “Legend for AT&TMobility Records,” a glossary ofterms that he used to interpretshorthand abbreviations in cellphone records. Id. at 740-741.Everroad argued that the legendwas hearsay upon which the witnessrelied to support his conclusion oflocation, the drafter of the legendshould have been called to testify,and the omission violated his rightto confrontation as recognized inCrawford v. Washington, 541 U.S.36 (2004). Id. at 741.

Citing Williams v. Illinois, 132S.Ct. 2221 (2012), involving a dec-laration of fact based in part on aDNA analysis performed by an out-side analyst and lab, the Court ofAppeals held that the “legend” incell phone records was not testimo-nial in nature, so Everroad was not denied his right of confronta-tion. �

Indiana Supreme Court awards grants to 23 counties totaling more than $232,000

The Indiana Supreme Court has awarded $232,470 in grant money tobenefit 23 counties to support local family court projects. The grants

will focus on creating innovative programs that improve the court process forfamilies. Priority was given to applications that emphasized three areas ofprogramming:

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

Alternative Dispute Resolution/Early Case Management – promoting timely resolution of cases

Court-Related Services – implementing other programs that support families throughout the court process

The 2014 grants, ranging from $2,000 to $30,000, were awarded to thefollowing counties:

Judge Thomas Stefaniak Jr., Lake County – $30,000

Magistrate Jason Reyome, Marion County IV-D Court – $25,000

Judge Charles Pratt & Judge Thomas Felts, Allen County – $23,270

Judge Thomas Alevizos, LaPorte County – $20,000

Judge Judith Stewart, Brown County – $15,000 (shared with Jackson/Lawrence Co.)

Judge Bruce MacTavish, Jackson County – $15,000 (shared with Brown/Lawrence Co.)

Judge Andrea McCord, Lawrence County – $15,000 (shared with Brown/Jackson Co.)

Judge Cynthia Ayers, Marion County – $15,000

Judge Don Daniel, Tippecanoe County – $12,500

Judge Mary Margaret Lloyd, Daviess/Floyd/Pike/Vanderburgh/VigoCounty – $12,000

Judge Michael Reed, Kosciusko County – $10,000

Judge Frances Hill, Monroe County – $10,000

Magistrate Ann Smith Mischler, Sullivan County – $10,000

Judge Lori Thatcher Quillen, Owen County – $8,000

Judge Lynne Ellis, Martin County – $7,500

Judge David Bonfiglio, Elkhart County – $7,200

Judge Jeffrey Meade, Gibson County – $5,000

Judge Dena Martin, Greene County – $5,000

Judge Paul Felix, Hamilton County – $5,000

Judge Gary Smith, Jennings County – $5,000

Judge Michael Robbins, Lawrence County – $5,000

Judge Bruce Stengel, Vermillion County – $2,000

The Family Court Project began in 1999 with cooperation from theIndiana General Assembly. Since then, the Supreme Court has distributedmore than $3 million to support family court projects across the state. The grants are considered “seed money,” and pilot counties are expected to transition within a reasonable time from “seed” funding to local funding.

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


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EmploymentOpportunities

LITIGATION ASSOCIATES. High-pro-

file, northside, litigation boutique seeks

candidates with demonstrated desire

and commitment to litigation for busy

federal court practice, at all levels of

experience. Among such candidates,

preference will be given to those with

exceptional academic backgrounds

and/or prior litigation experience, but all

candidates with a passion for litigating at

the highest levels, excellent work habits,

organizational and time-management

skills, along with a willingness to learn

and work as part of a team are encour-

aged to apply. Please send résumés to

Res Gestae, Box 031401, Indiana State

Bar Association, One Indiana Square,

Suite 530, Indianapolis, IN 46204.

AV-RATED Insurance Defense

Litigation Firm seeking an associate

attorney. Ideal candidate will have at

least 5 years' litigation experience.

Applicants must have excellent writing

and communication skills. Send résumé,

writing sample, law school transcript and

salary requirements to Huelat Mack &

Kreppein P.C., 450 St. John Road, Suite

204, Michigan City, IN 46360 or

[email protected].

EXPERIENCED LITIGATION Attorney.

Growing Lafayette law firm is seeking

an experienced litigation attorney to

handle a broad variety of business and

commercial litigation and pre-litigation

matters. A successful candidate should

have at least 5 years of experience

in commercial and business litigation.

Interested and qualified candidates

should email a cover letter,

résumé and salary requirement

to [email protected].

EXPERIENCED PATENT ATTORNEY

wanted. Busy and growing central

Indiana firm seeks patent attorney

with minimum of 2+ years’ patent

prosecution experience. Litigation

experience also a plus. Competitive

compensation and benefits. Email

résumé to: [email protected].

Employment Desired

QDRO PREPARATION by Indiana

attorney. Reasonable rates, quick turn-

around, assistance at any stage of the

dissolution, from discovery through plan

and court approval. For information,

email [email protected]

or call 260/755-0873.

SOCIAL SECURITY DISABILITY –

Soultana S. Myers, Myers Hockemeyer

& McNagny, LLP, 116 N. Chauncey St.,

Columbia City, IN 46725. Accepting

Social Security disability clients in

northern Indiana. Member of National

Organization of Social Security

Claimants’ Representatives.

Toll-free: 888/248-2224.

WORKER’S COMPENSATION.

Evansville attorney Kevin R. Bryant

seeks referrals on worker's compensa-

tion cases statewide. Please telephone

812/437-9991.

FRED PFENNINGER, COMMERCIAL

& other collections. When you need help

collecting 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]

INDIANAPOLIS IMMIGRATION attorney

seeks professional or co-counsel posi-

tions with Indiana attorneys in the prac-

tice of immigration law. Over 25 years’

experience in immigration. Will handle

adjustment of status, change of status,

labor certificates and other matters.

Also, will attend interviews at

Indianapolis Immigration Office.

Thomas R. Ruge, Lewis & Kappes,

P.C., 317/639-1210,

[email protected]

EMPLOYMENT LITIGATION

Indianapolis area attorney available

for referrals and co-counsel affiliations

on wide range of employment matters.

25+ years of experience representing

businesses and employees. Robert S.

Rifkin, Maurer Rifkin & Hill, P.C.,

317/844-8372.

ERISA CLAIMS, long-term disability,

health insurance claims, life insurance

claims. Contact Bridget O’Ryan,

317/255-1000, 1901 Broad Ripple

Avenue, Indianapolis, IN 46220,

[email protected]

CALIFORNIA LAWYER since 1966.

AV-rated. Member, ISBA. Father and

brother practiced many years in Marion.

Enjoys interacting with Indiana lawyers.

Handles transactions, ancillary probates

and 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

CLASSIFIEDSBusiness supplies for a productive, efficient office

The State Bar is proud to part-ner with a terrific member

benefit, Office360, one of thelargest, fastest-growing, indepen-dently owned office products sup-pliers in the country, recognizedlast year by TriMega PurchasingAssociation as #1. Not only doesOffice360 provide competitive pricing on top supplies, but it alsooffers free, next-day delivery withno minimum order requirement –anywhere in the continental UnitedStates!

“We find that as a local com-pany we can really improve thelevel of service and also be the low-cost provider compared to the bigthree – Office Depot, OfficeMaxand Staples – who have most of thebusiness out there,” says SteveNahmias, who owns and managesOffice360 along with brothers Scottand Lenny.

Many central Indiana law firms already enjoy Office360’shigh-quality service and appreciatethe personal touch Office360brings. Services such as delivery ofcopy paper to specific office loca-tions, customized website orderingsystems, financial reporting andmore are available to better managea firm’s overall supply spend.Products offered include tradition-al office supplies, ink & toner,cleaning & breakroom supplies,and office furniture.

Office360 is proud to partnerwith such firms as Bose McKinney& Evans, Scopelitis Garvin LightHanson & Feary, Cohen & Malad,Campbell Kyle & Proffitt, andmany more.

Visit tinyurl.com/Office360-login (user ID: ISBA, PW: REG22555) and start savingtoday! �

RG-03.14_RG 09.05 3/11/14 11:43 AM


APPRAISALSStamp & Coin Collections

30 Years Experience

Knight Coin & Stamp237 Main St., Hobart, IN 46342

219/942-4341• 800/634-2646www.knightcoin.com

A.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

FLORIDA ANCILLARY PROBATE

in most counties. Call collect, Pavese

Law Firm, 239/542-3148, attn: Michael

Gennaro, 4635 S. Del Prado Blvd.,

Cape Coral, FL 33904.

INSURANCE DEFENSE & coverage.

AV-rated northwest Indiana insurance

defense firm with over 75 years of com-

bined experience in insurance practice

is available to work with insurance

companies on coverage issues and to

represent insureds in litigation through-

out northern Indiana. Huelat Mack &

Kreppein P.C., 450 St. John Rd., Suite

204, Michigan City, IN 46360, 219/879-

3253, [email protected].

LOCAL COUNSEL, southwestern

Indiana. 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]

STEVE TUCHMAN, IMMIGRATION.

Experienced practitioner for statewide

referrals, consultation and co-counsel

positions. Lewis & Kappes, P.C.,

317/639-1210, STuchman@

Lewis-Kappes.com

VETERANS DISABILITY. Accepting

referrals of veterans' disability, military

Medical and Physical Evaluation

Boards, Courts Martial, military

discharge upgrade and Boards for

Correction of Military Records cases

throughout Indiana and across the

country. Bosley & Bratch, 800/9536224,

[email protected],

www.lawyers4veterans.com.

WORKER’S COMPENSATION.

Indianapolis attorney Charles A. Carlock

seeks referrals on worker’s compensa-

tion cases statewide. Tele., 317/573-

5282 or 866/573-5283.

LONG-TERM DISABILITY. Attorney

Charles A. Carlock seeks referrals

on claims for long-term disability

(ERISA) benefits. Tele., 317/573-5282

or 866/573-5283.

SpecialServices

OSHA SAFETY EXPERT WITNESS

in construction and industry accidents.

U.S. Dept. of Labor Authorized Trainer.

Former OSHA inspector. OSHA Safety

Expert, Inc., contact Wendell Rust

toll-free at 877/544-4323, email:

[email protected]

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

COAL, OIL, GAS – Leases, Surface

Use Agreements, Title Opinions,

Due Diligence, Royalty Determination.

Hugh R. Hunt, Attorney at Law, 10 N.

Court St., Sullivan, IN 47882; phone,

812/241-1480.

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

STOCKBROKER/SECURITIES FRAUD.

Former Indiana Securities Commission-

er who works with investors and attor-

neys in brokerage disputes. Available

for referrals, consulting, co-counsel or

expert witness affiliations. No charge

for initial evaluations. Maddox,

Hargett & Caruso, Mark E. Maddox,

317/598-2040, 800/505-5515.

HEALTH CARE PROVIDER license

defense. Experienced nurse attorney

is available to represent nurses, physi-

cians, pharmacists, dentists, veterinari-

ans and other licensed health care pro-

fessionals before the various licensing

boards or to respond to an attorney

general’s office license investigation.

Lorie A. Brown, RN, MN, JD,

[email protected], 317/465-1065.

Miscellaneous

OFFICE SPACE: Attorneys located in

the Gold Building at 151 N. Delaware

St. in downtown Indianapolis looking

to share extra office space. Secretarial

services available. Possible referrals.

Low rent. Reply to [email protected]

and reference “Gold Building” office

space.

PRIME OFFICE SPACE FOR RENT –

10th floor, beautiful, prestigious

Keystone Crossing address available

with all the amenities (receptionist, high-

speed Internet, multifunction copier,

kitchenette, 3 conference rooms).

Room for 2-3 attorneys with support

staff. Surround yourself with seasoned

legal professionals. Interested or

for more information, contact Rachel

Milner, [email protected]

or 317/571-1101.

Email your classified word ad to [email protected]. You will be billed upon publication.

ISBA members40¢ per word, $10 minimum

Nonmembers60¢ per word, $15 minimum

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-03.14_RG 09.05 3/11/14 11:43 AM

FAIR COMMEN

T CLASSIC

A lawyer’s compensationBy ISBA Past President Rabb Emison

minimum. She was clean, but her dress was a one-piece thing pulled over her head, and her hairstyle was matted, patted down with wet hands. Was she a survivor? You bet she was.

The appeal was filed, and a hearing date was set.When I arrived for the hearing, my client was already in place, seated at the table opposite the hearing officer.I sat down beside her, and she began to tell her story,how she cared for the deceased for several years, kepthouse, the whole thing. She could not see the aston-ished face of the hearing officer as he listened to theincredible tale. In a few moments, he shot me someamused glances, and we, the two sighted people, were conspirators. It was apparent that he would rule for her.

After she finished her statement, he left. Then sheleaned over to whisper to me. If glass eyes could twin-kle, they did. “Do you see that person in the back of theroom?” she asked. I looked. At the back of the hearingroom was a man, sitting idly, gazing out of the window.She leaned closer to confide in me.

“That’s my new man.”

Discretion draws a veil over the events that fol-lowed. [Suffice it to say] a little discussion [was had]about the statements she just made and the require-ment to be candid in the claim. There could be no misrepresentation that she was left a dependent uponthe deceased. Choose the award or the new man.

Sightless, uneducated and poor, she gave me a lesson. When I told her that an alliance with a new man would cost her the award, she shrugged. She knewpenalties worse than any government regulation. Whenlife dealt her cards, she sat down to play and made themost of the hand she drew. No one else would be per-mitted to play it for her, and she would not throw it inbecause it was bad. Life is to be enjoyed, not endured.Many lawyers are never treated as well as I was at thatmoment.

Thank you, blind lady, wherever you are. �

Email your “Fair Comment” for publication consideration to Susan J. Ferrer, editor, Res Gestae, at the Indiana State Bar Association, [email protected].


Editor’s Note: The following column first appeared inMarch of 1995. A treasured and longtime contributor to Res Gestae, Rabb Emison of Vincennes, Ind., passed away on Sept. 1, 2010.

Leon Jaworski, a name partner of the well-known Houston firm, Fulbright & Jaworski,interviewed new hires about the plan to pro-

vide needy people with free legal help. He considered it a duty of the profession. (For those too young toremember, Jaworski is known to history as the specialprosecutor in Watergate.)

My practice began with a similar lecture. It was in a law firm of a contrasting size – I joined a sole practi-tioner – but the interview was the same. My partnerwas from the first part of [the 20th] century, and hiscounsel was quaint in contrast to modern practice. The distinction between a professional and a trades-man, he told me, is that a professional gives away a percentage of his time.

A recent survey reporting the public attitudetoward lawyers was published in a national news magazine. No surprises, but it was grim. A majority ofthose surveyed think the worst. Lawyers are consideredto be liars and crooks. The news about emphasis onmoney by lawyers has done it.

The rewards of a practice can be other than money.If it is pro bono, it has to be other than money. Thereare lessons that may be learned. Among my pro bonoclients was the most memorable, and she taught me a lesson. It was not a big case, but it was everything toher. She sought me out because she had been deniedSocial Security benefits.

When this client appeared, she was blind. She wasnot just visually impaired; she had two glass eyes. Thebenefits she sought were as a survivor. The problemwas that the man she survived was not her husband buta live-in. At that time Indiana law recognized only theobligations of a formal marriage, a status that justifieddenial of benefits to her. Despite her appalling handi-cap, she maintained a home with the man. Every day of the year, summer and winter, she was barefoot. She walked through the house checking for what her man had dropped. The appearance of her house-keeping could be judged by her appearance. Absolute

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Res Gestae - March 2014

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Transcript of Res Gestae - March 2014