Res Gestae - March 2015

March 2015 Vol. 58, No. 7

BROCHUREINSIDE

KEEP CALMAND

LAWYER ONISBA Solo & Small Firm

Conference

French Lick ResortJune 4-6, 2015

EDITORSusan J. Ferrer

[email protected]

GRAPHIC DESIGNER & PHOTOGRAPHER

Vincent [email protected]

ADVERTISINGChauncey L. Lipscomb

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Joseph M. PellicciottiWilliam A. Ramsey

[email protected]

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

26 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

34 RECENT DECISIONS 10/14Maggie L. Smith and Abigail T. Rom, Indianapolis

39 CRIMINAL JUSTICE NOTES 11/14Jack 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.

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

The Journal of the Indiana State Bar Association

RES GESTÆMarch 2015 Vol. 58, No. 7

D E PA R T M E N T S13 COUNTERCLAIM

22 WHERE TO TURN

RES GESTÆ • MARCH 2015 3

F E AT U R E S

9 ISBA LAUNCHES SECTION FORUMS

11 ON THE ROAD TO ‘SERVANT LEADERSHIP’By Bill Brooks, Indianapolis

13 THE RESURRECTED COUNTERCLAIM: IND. TRIAL RULE 13(J)By Colin E. Flora, Indianapolis

22 JLAP: SAVING LIVES AND CAREERSBy U.S. Magistrate Judge Tim A. Baker, Indianapolis

26 MISCONDUCT

RG 03.15_RG 09.05 3/6/15 9:02 AM

This month’s “President’s Perspective” addresses the need for our entire legal community to rethink the practice of law and lawyer regulation. The ISBAbegan that reimagination process a couple of yearsago and is updating many of the ways it serves its members. A description of our latest evolutionary step appears in this month’s Res Gestae at p. 9 – we’re upgrading our e-discussion lists to a powerful database-driven forum system.

Some of us remember Archie Bunker(Carroll O’Connor) and Archie’s wife,Edith (Jean Stapleton), singing the

theme song, “Those Were the Days,” in the’70s sitcom, All in the Family. Lawyers oftenlament that these days are not those days –when economic and competitive pressuresplayed much smaller roles in the practice of law.

I strolled down Nostalgia Lane recentlywhen I received copies of the Sullivan CountyBar Association’s 1961 Schedule of Fees and a fee poster that I presume would have beendisplayed in lawyers’ offices. Older lawyershave told me that when the old fee scheduleswere effective lawyers could be disciplined forcharging fees below the scheduled minimums.Those particular good ole days ended whenthe U.S. Supreme Court held that “the StateBar, by providing that deviation from CountyBar minimum fees may lead to disciplinaryaction, has voluntarily joined in what is essen-tially a private anticompetitive activity, and in that posture cannot claim it is beyond the reach of the Sherman Act.” Goldfarb v.Virginia State Bar, 421 U.S. 773, 792 (1975).

The application of antitrust laws to bar associations opened a cascading legal service marketplace destabilization that somefuturists have called “creative destruction.”Creative destruction theory says that market-place evolution rewards innovators andautomators and extinguishes inflexible andinefficient providers of goods and services.Writers about the future of law practice(Jordan Furlong, William Henderson, JimCalloway, Richard Susskind and others) illus-trate the theory with examples such as thenear extinction of carriage makers after theinvention of the “horseless carriage” and ofphone book publishers (When is the last timeyou used a phone book?) after mobile phonesand the Internet became ubiquitous.

The initial competition among lawyerstriggered by Goldfarb synergized with techno-logical innovation and the eruption of self-service cultural values into an existential

threat for many traditionally minded lawyers.Lawyers now compete with each other, a host of emerging DIY legal service onlinesystems, and an endless flood of non-JD service providers in such diverse legal areas as transportation, employment, bankruptcy,debt collection, estate planning and elder law.

It would be enough for any profession to face such challenges in a free market econo-my, but our profession does not allow itself to engage freely in the marketplace. The legalprofession imposes upon itself the higheststandards of consumer protection values with restrictions on fees, marketing and pro-motion of ancillary services (such as invest-ment management and other financial services). Additionally, we expect lawyers to provide pro bono service to the indigentwhen some lawyers can’t afford to pay studentloan and mortgage payments. Of course,LegalZoom, Rocket Lawyer, U.S. Legal Wills and a mushrooming horde of otherunlicensed and unregulated legal serviceproviders sidestep all of those burdens completely.

A battle tactic during the AmericanRevolutionary War demonstrates what happens when a self-regulating professionvoluntarily hobbles itself with responsibilitiesthat do not encumber its competitors. British generals prohibited their soldiers fromengaging in guerrilla warfare tactics in earlyRevolutionary War skirmishes. American Col. Daniel Morgan exploited the rigid Britishmilitary dogma with an asymmetrical deploy-ment of sharpshooters against the conven-tionally trained and deployed British Army.The American marksmen shot the Brits full of holes from brush piles, barn lofts and treeperches until the onslaught forced British generals to aban-don some of theirbattlefield deco-rum near the conflict’s end.

Bar associa-tions slowed thetide of unregulated

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

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

http://www.inbar.org

OFFICERSPresident Jeff R. Hawkins, Sullivan

President-Elect Carol M. Adinamis, Westfield

Vice President Mitchell R. Heppenheimer, South Bend

Secretary Michael S. Dalrymple, Indianapolis

Treasurer O. Adedoyin Gomih, Merrillville

Counsel to the Ted A. Waggoner, RochesterPresident

BOARD OF GOVERNORS1st District Scott E. Yahne, Munster

2nd District Robyn M. Rucker, Valparaiso

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

4th District Martin E. Seifert, Fort Wayne

5th District Candace D. Armstrong, Brook

6th District Patrick J. Olmstead, Greenwood

7th District Ann Z. Knotek, Brownsburg

8th District Hon. Leslie C. Shively, Evansville

9th District Crystal G. Rowe, New Albany

10th District Wilford A. Hahn, Huntington

11th District Tonya J. Bond, Indianapolis

11th District Terry W. Tolliver, Indianapolis

11th District Andrew Z. Soshnick, Indianapolis

At-Large District Rafael A. Sanchez, Indianapolis

At-Large District Sonia C. Das, Indianapolis

Past President James Dimos, Indianapolis

House of Delegates Andi M. Metzel, Indianapolis,Chair

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

Young Lawyers Matthew J. Light, Indianapolis,Section Chair

STAFFExecutive Director

Thomas A. Pyrz • [email protected]

Administrative AssistantBarbara M. Whaley • [email protected]

Associate Executive DirectorSusan T. Jacobs • [email protected]

Administrative AssistantJulie A. Gott • [email protected]

Director of CommunicationsSusan J. Ferrer • [email protected]

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

Graphic Designer & PhotographerVincent Morretino • [email protected]

Legislative CounselPaje E. Felts • [email protected]

Director of Special ProjectsSection & Committee Liaison

Maryann O. Williams • [email protected]

Administrative AssistantBarbara L. Mann • [email protected]

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

Administrative AssistantKimberly D. Latimore • [email protected]

Director of CLEChristina L. Fisher • [email protected]

Assistant to Director of CLEKassandra Adams • [email protected]

Section & Committee LiaisonMelanie Zoeller • [email protected]

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

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

Bookkeeper & Convention RegistrarSherry Allan • [email protected]

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

PRESIDENT’S PERSPECTIVEJEFF R. HAWKINS

[email protected]

Those were the days?

(continued on p. 7)

RG 03.15_RG 09.05 3/6/15 9:02 AM

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legal service competition by prose-cuting interlopers with charges of unauthorized practice of law inthe past, but fissures are spreadingthrough the dike faster than barleaders can plug them. Further-more, compared to bar associa-tions’ cash-strapped, dues-depen-dent budgets, some of their unregu-lated adversaries are raising over-whelmingly larger financial warchests in capital markets. Unless allstates unite against such challenges,what individual state bar can realis-tically afford to prosecute a UPLclaim against every encroachingquarter-billion-dollar legal service technology company?

So what is the legal professionto do? We cannot put the genieback into the bottle because theFTC will not tolerate the monopo-listic practices of our past; and ourunlicensed and unregulated com-petitors are salivating for the bread& butter on our plates right now.With the vandals storming thegates, we need to change the legalprofession fundamentally. Lawyersmust evolve to remain relevant inthe marketplace. Law schools andbar regulators must innovate theway they educate, license and regu-late lawyers to ensure that the prac-tice of law remains an economicallysustainable profession.

Archie Bunker’s anachronisticand socially unacceptable behaviormade us laugh. Who will laugh if our quixotic cling to outmoded traditions, practices and behavioralstandards relegates many of us toobsolescence and obscurity? It cer-tainly will not be a bunch of mid-dle-aged, former lawyers wranglingshopping carts in Walmart parkinglots! Ultimately, our marketplace,like every other, presents only twobasic alternatives: evolution orextinction. I, for one, intend not to become a museum exhibit.

Nominations sought for ISBAboard positions

Any lawyer member of theIndiana State Bar Associa-

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

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

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

District 1, representing Lake County;

District 4, representing Allen County;

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

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

District 11, representingMarion County, two positions.

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

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

PRESIDENT’S PERSPECTIVEcontinued from page 5


RG 03.15_RG 09.05 3/6/15 9:03 AM

The State Bar is excited toannounce the launch of its new section forums,

one of the key member benefitsnow available through our new & improved website and member-ship database. The new forums are directly linked to the database,keeping each forum up to date withregard to new members and emailaddress changes. You will also have the ability to cut down on thenumber of emails you receive dailyby subscribing only to topics postedto the forums that are of specialinterest to you.

Important to note: The ISBAswitched from its e-discussion list provider to the forums onMarch 16, meaning you are nolonger able to post to an e-discus-sion list. However, you can nowpost to any forum of which you are already a section member by signing in at www.inbar.org. Call 800/266-2581 for instructionson how to access the forums and subscribe to topics.

Similar to e-discussion lists,forum posts are archived, search-able and provide you with theoption of receiving posts as a single “digest” email as opposed to receiving multiple emailsthroughout the day. Also, much like what you’re used to, every time someone posts a newtopic to the forum of which you are a member, you will receive

an email notification allowing you to read the post. The primarydifference is that in order to replyto someone else’s post, you willneed to be signed in at www.inbar.org.

This simple step has been madeeasy for you because a direct link tothe forum post on the website willbe included in the email notifica-tion that you receive. In order toinitiate a new post, you will alsoneed to be signed in at www.inbar.org to select your forum.

We are excited about the func-tionality and connectivity of theforums with our new database! For more information about theforums and subscription options,please contact your section liaisonat 800/266-2581.

Above is an example of whatan email notification looks likewhen someone posts a new topic to a forum. �

ATTEN

TION

ISBA launches forums in place of e-discussion lists


Jeff R. Hawkins has posted a topic in the Probate, Trust & Real Property Section forum. I want to obtain a Servicemembers Civil Relief Act Status Report from the Department of Defense Manpower Data Center for motion for default judgment. When I look for the Center’s website, I keep landing on pages that my browser flags as unsecure websites. Does someone have a safe Web link to share with me to order the status report? ~ Jeff R. Hawkins To reply or subscribe to this topic, click: http://www.inbar.org/forums/permalink.asp?id=1068809 To view other forum topics, click the link below: http://www.inbar.org/forums/Topics.aspx?forum=167299&group=134068 Thanks! Indiana State Bar Association The contents of this email do not necessarily represent the views or policies of the community or organization. If you wish to unsubscribe from the "Probate, Trust & Real Property Section" forum, click here: http://www.inbar.org/members/forum_subscriptions.asp

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

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

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

Name________________________________________________

Address______________________________________________

City, State, Zip_________________________________________

Phone_______________________________________________

Fax__________________________________________________

Email________________________________________________

Payment Information:

❑ Check (make payable to Indiana State Bar Association)

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

❑ VISA ❑ MasterCard ❑ Discover

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

Signature_____________________________________________

Pricing Information_____ FREE - Tickets for judges are complimentary!

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

The Young Lawyers Sectioninvites you to attend the annual

Indiana StateBar Association

Judicial Reception

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

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

Conrad Indianapolis50 W. Washington St.

Indianapolis, IN 46204

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

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

Indianapolis, IN 46204Indianapolis, IN 46204

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

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

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

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

Total tickets (incl. free)TOTAL $

Jennifer swam with dolphins.Liz designed bridges. Rheawas a National Spelling Bee

champ. Sarah scuba-dived inTahiti. Sue plays the bagpipes. And Jamie attended seven – count’em, seven – Metallica concerts.

We need to know such person-al curiosities because groups func-tion better when members knowtheir colleagues’ stories – andbecause the opening session of the State Bar’s 2015 LeadershipDevelopment Academy focused on that fact and the fact that leadership involves making groups function more efficiently.

We now know even moreabout the 25 members of the acade-my’s fourth class. We know that, if he were not a lawyer, Jordanwould be a trombone player. We know that Kate would want to be Beyonce’s makeup artist and that Ala’a would be a NationalGeographic photographer. AndAbby would be a Disney travelagent – or, better still, a Disneyprincess.

Mary Jo Clark of Contem-porary Consulting, co-facilitator of the Jan. 22-24 event at the FortHarrison State Park Inn, told theattorneys their responsibility was to absorb the material in front of them, but also to learn abouteach other.

Workshop goals also includedbuilding trusting relationshipsamong the group, learning to servethe common good, learning how toenhance the capabilities of others,and learning about their own quali-ties. Who are the risk-takers? Whoare the sensitive ones? Who amongthem find out information by hear-ing others’ stories, and who are the ones that would rather use data? How does that affect a team’sefficiency? And how will the classmembers use this information ontheir road to servant leadership?

Servant leaders can be govern-ment leaders, said co-facilitator Pat Heiny. “But they are also peoplewho live next door or your grand-parents.”

On the road to that lesson, the new classmates learned about one member’s grandfather, a Russian who survived the horrorsof World War II and the war’sdaunting aftermath. They alsolearned about how one of the class-mates is named Freedom becauseher father wanted to remember why he fought, and many of hisfriends died, in Vietnam.

Mary Jo Clark challenged theclass to absorb the personal storiesand the lessons on servant leader-ship and then “reflect on how this ischanging and making an impact onyou – and how it is making a differ-ence in your life and in your work.”

The class heard personal sto-ries, too, from distinguished mem-bers of Indiana’s judiciary, includ-ing the Hon. Brent E. Dickson ofthe Indiana Supreme Court and theHon. Nancy H. Vaidik, chief judgeof the Indiana Court of Appeals.

Dickson spoke on openingnight before adjourning to what hasbecome an LDA tradition, dinnerin the handsome Fort Harrisonhome of former Indiana SupremeCourt Justice Frank Sullivan Jr.

“Honor the legal profession,”Dickson told the class. “Public trust is crucial; carry that mantle of dignity at all times.”

Vaidik spoke at breakfast thenext morning. And though her pathdidn’t cross Dickson’s at this partic-ular event, the two jurists carriedmany of the same themes throughtheir highly personal stories of theircareers.

“Your reputation is all youhave,” Vaidik said as she relatedsome interactions she had over the years with less-than-honorableattorneys. “Integrity and honestyare [everything] – and you cannever get that back.” She also said that all attorneys are role models in their communities as well as their court-rooms. “When you stand up in front

LEADERSH

IP DEVELO

PMEN

T ACADEM

YOn the road to ‘servant leadership’

By Bill Brooks

Media consultantand freelance writerIndianapolis, Ind.


(continued on page 12)

RG 03.15_RG 09.05 3/6/15 9:03 AM

of people, you want to make sureyou don’t screw it up.”

Vaidik was asked, as a judge,what she thought the most important quality is for a lawyer.“Be prepared,” she said, but then continued by sounding much like Dickson had the night before. “Be civil, collegial,” she said. “The best lawyers are

those who treat each other withrespect.”

Vaidik also stressed suchvirtues as kindness and empathy.“You don’t have to be the smartestperson in the room to be a leader,”she said. “It takes so much more to be a leader.”

She endorsed the idea of beingactive in bar and judges’ associa-

tions. She said that when she firstgot involved in the Indiana JudgesAssociation, “it opened up a wholenew world, an unbelievable world.”

And, just as Dickson had donethe evening before, Vaidik stressedhow the relationships in bar associ-ations – and, specifically, theLeadership Development Academy– would impact the classmates’careers. “These are going to becomeyour lifelong friends and ‘vouch-ers’ – people in various parts of the state who can vouch for you.”

Members of the LeadershipDevelopment Academy’s fourthclass were reminded several timesthat they would be making manyconnections during the five ses-sions, not the least of which wouldbe via talks with all five members of the Indiana Supreme Court.There were also three past presi-dents of the ISBA present at themorning talk by Chief Judge Vaidik – a list that included C. Erik Chickedantz, LDA founder.The list was even enhanced duringthat day’s luncheon, when – in anLDA first – many members of theISBA Board of Governors wereinterspersed among the diningtables to interact with the classmembers before the board’s scheduled monthly meeting.

There was one other strongsimilarity between the two judges’talks. Both stressed the need forlawyers to live balanced lives, to respect their home lives and their families.

Dickson said that at one pointin his career he scaled back hiscommunity activism for more family time, for more time as hischildren were growing up. “Don’tlet those days escape,” he said. �

LEADERSHIP continued from page 11

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As civil attorneys wellknow, Indiana Trial Rule13 governs counterclaims

and cross-claims. Nevertheless, a portion of the rule often goesoverlooked to the detriment ofdefendants with otherwise time-barred counterclaims. Rule 13(J)exists as the embodiment of almosttwo centuries of doctrines thatgradually transitioned from com-mon law to statute and finally intoprocedural rule. It provides for circumstances in which a counter-claim may be filed after expirationof the statute of limitations as ameans of recoupment or set-offagainst a plaintiff’s claims.1

Notably, 13(J) does not provide for affirmative relief; rather, itallows for a method to diminish a counterclaim defendant’s recovery as the primary plaintiff.2

Also of note is that, unlike much of Rule 13, subdivision (J) has nocounterpart in the federal rules.3

Devoid of its historical contextand subsequent limited case law,Trial Rule 13(J) seems a straight-forward procedural rule. It reads:

The statute of limitations, a non-claim statute or other discharge atlaw shall not bar a claim asserted as a counterclaim to the extent that:

(1) it diminishes or defeats theopposing party’s claim if it arises out of the transaction or occurrencethat is the subject-matter of theopposing party’s claim, or if it couldhave been asserted as a counterclaimto the opposing party’s claim beforeit (the counterclaim) was barred; or

(2) it or the opposing party’s claimrelates to payment of or security for the other.

On first glance, it appears to pro-vide two avenues to preserve a dilatory counterclaim: (J)(1) and(J)(2). However, case law provesfirst glances deceiving and shows(J)(1) may be understood onlythrough the lens of history. An even greater enigma is (J)(2),the plain language of which belies

its intended purpose: to addresscounterclaims when it or the pri-mary claim has been assigned.

Even with the limited answersthrough case law, there remainunsettled questions in applying the rule tracing back to the doc-trines and statutes that preceded it. By examining the limited caselaw, Civil Code Study Commissioncomments, and recent appellatearguments, this article attempts to provide a “one stop shop” for understanding the rule and to expose some of the lingeringquestions that may arise in practice.In order to do that, we must start at the beginning.

History of recoupment and set-off

The origins of T.R. 13(J), alongwith the rest of Rule 13, stem fromtwo related but distinct doctrines:recoupment and set-off.4 At thedawn of Hoosier jurisprudence,when there existed a distinctionbetween courts of law and equity,counterclaims were not recognizedby that name. Chancery practicehad cross-bills for the purpose of“obtain[ing] full relief for all partiesand a complete determination of all controversies which arise out ofthe matters charged in the originalbill.”5 Cross-bills had a mirror atlaw in the doctrine of recoupment.Recoupment permitted a reductionof the plaintiff’s claim so long as the basis for recoupment “growsout of the same contract or transac-tion as that upon which the plain-tiff’s cause of action is founded.”6

Another related but distinctchancery court doctrine was set-off.Arising from “seventeenth-centurychancery court’s jurisdiction overbankruptcy,”7 the set-off doctrineencompassed “a counter demandgrowing out of an independenttransaction, for which the defen-dant might maintain an actionagainst the plaintiff, pleaded by

The resurrected counterclaim: Ind. Trial Rule 13(J)By Colin E. Flora


the defendant to counterbalancethe plaintiff’s recovery, either inwhole or in part, and, [possibly], to recover a judgment in his ownfavor.”8 As Justice Byron Elliott rec-ognized, “The essential differencebetween set-off and recoupment is that [set-off] may consist of aclaim arising out of an independentcontract; while in recoupment thedamages claimed must flow fromthe same contract ... or must growout of the same transaction as thaton which the plaintiff’s cause ofaction is founded.”9

Just as chancery courts fadedbeneath the sands of antiquity, so too did the doctrinal status ofrecoupment and set-off.10 In 1852,the code system of pleadings wasadopted to “blend in one systemthe chancery and common law pro-cedure, but to so blend them thatthe new procedure ... should formin itself a complete and harmonioussystem.”11 The code blended cross-bills and recoupment into counter-claims,12 “defin[ing it] as any mat-ter arising out of, or connected withthe cause of action which might be the subject of an action in favorof the defendant, on which wouldtend to reduce the plaintiff’s claimor demand for damages.”13 Thecode also subsumed the doctrine ofset-off, but not as a “counterclaim.”The earliest incarnation of the set-off statute permitted “a party to an action [to] plead or reply a set-off or payment tothe amount of any cause of action or defense,notwithstanding, suchset-off or payment isbarred by the statute.”14

The merger of lawand equity along with theexclusion of set-offs fromthe category of counter-claims resulted in muchconfusion. This was most


Colin E. FloraPavlack Law, LLCIndianapolis, [email protected]

RG 03.15_RG 09.05 3/6/15 9:03 AM

apparent in federal courts taskedwith applying Indiana law. In 1901,District Judge John Harris Bakerdiscussed the dilemma in light ofthe fact that federal courts – unlikeIndiana courts – did not merge law and equity until 1938.15 JudgeBaker recognized that the portionsof the Code encompassing equi-table doctrines could not be appliedby a federal court of law. This distinction left the counterclaimstatute enforceable in federal courtsonly to the extent that it applied to recoupment and not to cross-bills.16 Similar confusion plaguedstate courts in the blending ofchancery terms with terminologyderived from common law, result-ing in questions over the properprocedure for raising a counter-claim or set-off.17

Federal jurisprudence, like that of Indiana, saw a transition ofrecoupment and set-off from com-mon law to code counterclaim.18

The end result of the lengthy evolu-tionary process was the incorpora-tion of the code counterclaim intoFederal Rule 13.19 Recoupmentclaims became compulsory coun-terclaims under 13(a), and set-offclaims became permissive counter-claims under 13(b).20 With the1970 enactment of the Indiana Trial Rules, Indiana followed suitby abandoning the counterclaimand set-off statutes and incorporat-ing them into T.R. 13.21

Incorporation of recoupmentand set-off into T.R. 13(J)(1)

Even though Rule 13(J)replaced the counterclaim and set-off statutes in 1970, it was not until Bacompt Systems, Inc. v. Ashworth – three decades later –that an Indiana appellate courtaddressed the rule in light ofrecoupment and set-off.22 Prior toBacompt, case law insight was limit-ed. The sum total of case law obser-vations were that: (1) the rule limits

an applicable counterclaim to “a defense of recoupment” thatdoes not permit affirmative recov-ery;23 (2) it does not “confer [sub-ject matter jurisdiction] where it did not exist”;24 (3) it permits a counterclaim otherwise barred by the notice requirements of theIndiana Tort Claims Act;25 (4) itpermits a counterclaim to foreclosemechanic’s lien more than one yearafter recording;26 and (5) it is not atolling provision that accompaniesstatutes of limitations into federalcourt, but rather a procedural rulelimited to state courts.27

For the first time, in Bacompt,the Court of Appeals looked at thehistory of Trial Rule 13 when inter-preting subdivision (J).28 The courtrecognized that the “‘declaredintention’ of the 1970 Civil CodeStudy Commission was to incorpo-rate the doctrine of set-off and its history into the newly draftedIndiana Trial Rules.”29 However,the resulting Trial Rule 13 left“questions with cloudy answers.”30

The most important question was what impact the nature of thecounterclaim as compulsory underRule 13(A) or permissive under13(B) had on the application of 13(J). Bacompt provided the much-needed answer.

The Bacompt court deter-mined, without much writtenanalysis, that Rule 13(J)(1) com-prised two distinct mechanisms for pursuing a dilatory counter-claim. The first clause – echoing the “transaction or occurrence”language of Rule 13(A) – is “clearlya compulsory counterclaim.”31

The second clause then is a permis-sive counterclaim. The distinction,already of great importance when not otherwise time-barred,becomes even more importantunder 13(J)(1).

Under Rule 13, all counter-claims are either compulsory or

permissive.32 Thus, if a counter-claim is not compulsory under Rule 13(A), it is a permissive counterclaim governed by 13(B). The Bacompt decision determinedthat compulsory counterclaims areat all times permitted under Rule13(J)(1). Permissive counterclaims,to the contrary, have a rigid limita-tion.

The limitation to permissivecounterclaims stems from the textof T.R. 13(J)(1): “if it could havebeen asserted … before it … wasbarred.” The Bacompt court deter-mined this language provides atime limitation on applying Rule13(J)(1) to permissive counter-claims. If the statutory period for bringing the counterclaim has passed prior to the accrual of a plaintiff’s cause of action, Rule 13(J)(1) does not apply to save a right to set-off.

When is a counterclaim compulsory?

Because counterclaims areeither permissive or compulsory,the determination of what consti-tutes a compulsory counterclaim is of the utmost importance. It is aquestion that has produced highlynuanced tests and contradictoryresults. Moreover, the interests typically at stake in determiningwhether a claim is compulsory or permissive get flipped when Rule 13(J) is implicated.

In determining whether a counterclaim is compulsory, the court must determine what it means to arise out of the sametransaction or occurrence. “Theterm ‘transaction’ has been definedas a word of flexible meaning.”33

In resolving this issue, courts havedevised numerous tests. The domi-nant approach, and method utilizedby Indiana, is the logical relation-ship test.34 The hallmark of the

RESURRECTED COUNTERCLAIM continued from page 13



RG 03.15_RG 09.05 3/6/15 9:03 AM

logical relationship test is its flexi-bility.35 The logical relationshipneed not be “an absolute identity offactual backgrounds … the essentialfacts of the claims [must be] so log-ically connected that considerationsof judicial economy and fairnessdictate all the issues be resolved in one lawsuit.”36

Despite the perceived advan-tages of the logical relationship test,it “results in uncertainty … andtends to be overbroad in scope.”37

However, the driving considerationthat prevents the test from fallingsubject to mere whim is the goal of judicial economy: the avoidanceof “multiple lawsuits between thesame parties arising from the sameevent[s.]”38 Thus, even though“transaction or occurrence” is often broadly defined, it is done so in the context of effectuatingjudicial economy.39

This is where considerationsgenerally applicable in determiningwhether a claim is compulsory getflipped. Underlying the judicialeconomy consideration is thepotential that a counterclaimdeemed permissive can be brought

in a subsequent suit. That consider-ation does not exist with Rule 13(J).Consequently, the logic of applyinga test driven by considerations ofjudicial economy seems inappro-priate where economy may only be hampered by finding a claimcompulsory, thereby increasing the number of issues litigated.

Nevertheless, absent any guid-ance to the contrary, the only rec-ognized test to determine whether a claim is compulsory is the logicalrelationship test. Because, “[b]yand large, the courts have refrainedfrom making any serious attempt to define the transaction-or-occur-rence concept in a highly explicitfashion[,]” the best method fordetermining whether a claim is log-ically related is to find analogouscases.40 Consequently, any furtherdiscussion here would be a grossoversimplification.

Is Bacompt settled law?

Of course, whenever the con-trolling case is from an intermedi-ary court, the point of law is notdefinitively settled.41 Nevertheless,just because the Indiana Supreme

Court has not weighed in onBacompt does not mean the issue is unsettled.

Despite no indication from the Court of Appeals that Bacomptis anything other than the definitiveinterpretation of Rule 13(J)(1), at least one challenge has arisen.42

In Walbridge v. JP Morgan ChaseBank, N.A., the appellant-defendantsought to defeat application ofBacompt by relying on the 1860Indiana Supreme Court case Fox v.Barker.43 In Walbridge, the counter-claim’s statute of limitations hadexpired long before the accrual ofthe plaintiff’s claims.44 On appeal,the appellant-defendant invokedthe broad holding of Fox, which,relying on the original set-offstatute, permitted use of any time-barred counterclaim for set-off.Interestingly, the 1970 Civil CodeStudy Commission Commentsspecifically recognize the abroga-tion of Fox.45

In defense of his reliance upon Fox, the appellant-defendantargued that “[t]he Commission’scomments are not necessarily bind-ing, and ... a statute or rule is notopen to construction where there is no ambiguity in the languageemployed and its meaning isplain.”46 Accordingly, the defen-dant argued that Bacompt farexceeds the unambiguous languageof Rule 13(J). The resulting unpub-lished decision addressed neitherBacompt nor the viability of Fox.Nevertheless, the recognized abro-gation of Fox, combined with the numerous cases premised on Bacompt, indicates that Bacompt is here to stay.

What about T.R. 13(J)(2)?Thus far we have focused

on subdivision (J)(1). The reason is simple – no case has addressed(J)(2). Nevertheless, there is guid-ance to the rule. Although 13(J)(2)does not explicitly reference



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assignments, the Commission comments show that the rule isdesigned to address counterclaimsafter assignment.

The purpose of subsection (2) is to retain the substantive rule ofBurns’ Stat., §2-226 to the extent thatit is not regulated by other statutoryprovisions or other principles ofcommon law. ... The distinctionbetween claims arising out of thesame transaction or occurrence andthose which do not is a valid one.Thus if O promises to pay $1,000 in10 days in exchange for E’s promiseto build a garage for O in 60 days, an assignee of E should take subjectto any defense or counterclaim of Oresulting from the same contract –“transaction” – even if O wasinformed of the assignment beforethe defense counterclaim accrued.However, if O is indebted to E for $1,000 and E assigns his interestto E2 who notices O of the assign-ment, E2 should not take subject

to a counterclaim in favor of Oagainst E arising after the notice if the counterclaim is unrelated to the original claim.47

Section 2-22648 reads in pertinentpart: “[A]ll actions by assigneesshall be without prejudice to anyset-off or other defense existing at the time of or before notice ofthe assignment, except actions onnegotiable promissory notes andbills of exchange, transferred ingood faith and upon good consid-eration before due.”49

This portion of §2-22650 “wascopied from the New York code”51

and codified “the general policy of [Indiana] law, except in cases of commercial paper, to permit the same defence to be made where a contract has been assigned,as where it has not been[.]”52

However, §2-226 did not providecarte blanche use of set-off; only

claims for set-off accruing beforenotice of the assignment could beargued by or against an assignee.53

Exactly what portions of §2-226 survived the transition to13(J)(2) is not entirely clear. Basedon the Commission comments, itappears that the drafters intendedto preserve the rule that a counter-claim follows assignment. It alsoappears that only compulsorycounterclaims track assignment.However, the limitation of theaccrual date does not appear tohave been preserved in 13(J)(2).Further, there is no clear indicationof the commercial paper exceptionin 13(J)(2). Consequently, exactlyhow subdivision (J)(2) in its current form is to be interpretedremains unclear and may best beresolved by amendment to clarify



RG 03.15_RG 09.05 3/6/15 9:03 AM

its meaning. Until the rule isrevised or case law provides guid-ance, the best source for interpreta-tion remains the Commission comments.

Does Rule 13(J) apply to counterclaims that expireafter the filing of a complaint?

The basic purpose of 13(J) is to permit a defendant to invoke a counterclaim that is otherwisetime-barred. Where the watersbecome murky is when the coun-terclaim becomes time-barred after the plaintiff files its complaint.This issue was brought to the fore-front by Crivaro v. Rader.54 There,the plaintiff filed suit three weeksbefore the expiration of the statuteof limitations; the defendant filed acounterclaim 30 days later, after thestatute of limitations had expired.On appeal, the defendant argued

that filing the complaint tolled thestatute of limitations. The Court of Appeals rejected the defendant’sargument, recognizing that to holdotherwise would be to partake

in judicial legislation.55

Subsequent Indiana decisionshave utilized Crivaro without

negative indication.56 It was alsothe position adopted by an Indiana

federal court prior to Crivaro.57

Nevertheless, one commentator has criticized the decision, contend-ing that the Crivaro approach is flawed and that Indiana should have adopted the majorityapproach in tolling the statute of limitations for compulsorycounterclaims upon the filing

of the complaint.58 This positionhas been adopted by courts in otherjurisdictions that have rejected

Crivaro.59

Whatever the merit in utilizingthe “majority” approach, Indianalaw is clear: any dilatory counter-claim, regardless of when it becametime-barred, is subject to the limi-tations of Rule 13(J).

Impact of Rule 13(J) on untimely filed counterclaims

Untimely filed counterclaims,as opposed to time-barred counter-claims, are counterclaims that werenot filed at the proper proceduraljuncture. When a defendant doesnot file a counterclaim prior to orconcurrently with its answer, it mayonly do so by amendment underTrial Rule 15(A).

At least one defendant hasargued, upon denial of leave toamend, that Rule 13(J) acts to circumvent the discretion of thetrial court in permitting amend-ments under Rule 15(A).60



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Although, the resulting decision is unpublished and thereforeuncitable,61 the conclusion – that13(J) has no impact upon amend-ment procedures – seems highlyindicative of what a court wouldhold in a published decision.

In another informative unpub-lished decision, the Court ofAppeals addressed the utility of13(J) in a subsequent action toattack a prior judgment that hadresulted in the issuance of a taxdeed.62 The appellant tried to uti-lize a subsequent quiet title actionto attack the judgment under theauspices of Rule 13(J). The courtsaw through this attempt to cir-cumvent Trial Rule 60(B) thatwould render the reasonable-timelimitation of 60(B)(6) superfluousas long as the challenge was madeas a counterclaim. The court reject-ed such a reading because it “wouldextend a claim to counterclaimantsthat would not otherwise be avail-able to the same individual filing a direct claim[.]”

Similarly, the Tax Court reject-ed use of 13(J) to extend the time to challenge the determination ofestate tax.63 There, the estate filedits counterclaim eight days after thewindow to challenge inheritancetax. The court found the attempteduse of 13(J) was to seek affirmativerecovery – repayment of money –which falls beyond the scope ofRule 13(J).64

Is set-off or recoupment available outside the Trial Rules?

Because the doctrines existedlong before adoption of the TrialRules, there is reason to wonderwhether adoption of 13(J) hasextinguished the correspondingequitable and common law doc-trines. The answer is clear in thecase of set-off, but slightly less so in recoupment.

Set-off, unlike recoupment, is a doctrine derived wholly fromequity. Nevertheless, with its trans-formation into permissive counter-claim under Rule 13(B), “it had lost all its equitable foliage” andbecome “purely procedural” innature.65 It survives as a stand-alone doctrine of law only in bank-ruptcy proceedings;66 this circum-stance is unsurprising since bank-

ruptcy courts remain courts ofequity.67

Even though recoupment was a product of common law, theIndiana Supreme Court has recog-nized the “equitable doctrine ofrecoupment” to describe “an equi-table exception to the statute oflimitations where [it] would work



RG 03.15_RG 09.05 3/6/15 9:03 AM

an egregious injustice.”68 However,use of this doctrine appears strictlyconfined to recoupment of tax pay-ments. Nevertheless, one appellantsought to extend the doctrinebeyond taxes by invoking a court’sinherent power to grant equitablerelief.69

Although the appeal was vol-untarily dismissed prior to deci-sion, the argument seems destinedto have failed. As discussed,recoupment is not an equitabledoctrine by lineage. Its equitablecounterpart – cross-bills – was not a power inherent within thechancery court. Cross-bills were a procedural mechanism governedby the same rules as the initialpleading.70 Thus, it appears recoup-ment remains viable outside Rule13 only in tax law.

Final remarks

Even though the long historyof the doctrines of set-off andrecoupment has yielded Trial Rulesthat remain unchanged for fourdecades, there are still uncertaintiesleft in applying the doctrines. Onlyfuture case law or rule changes will

be able to resolve the unansweredquestions. And, if the history of set-off and recoupment is any indicator, those answers will never be as clear as hoped. �1. Crivaro v. Rader, 469 N.E.2d 1184, 1187

(Ind. Ct. App. 1984), trans. denied.

2. Streets v. M.G.I.C. Mortg. Corp., 177 Ind. Ct.App. 184, 378 N.E.2d 915, 919-20 (1978).

3. 10 Stephen E. Arthur, Indiana Practice Series:Procedural Forms With Practice Commentary§42.05 at 5 (2d ed. 1988).

4. See Standley v. NW. Mut. Life Ins. Co.,95 Ind. 254, 260 (1884).

5. Duffy v. England, 176 Ind. 575, 96 N.E. 704,707 (1911); Rooker v. Fid. Trust Co., 191 Ind.141, 131 N.E. 769, 775 (1921).

6. Standley, 95 Ind. at 260.

7. Coplay Cement Co., Inc. v. Willis & Paul Grp.,983 F.2d 1435, 1441 (7th Cir. 1993) (dis-cussing both Federal Rule 13 and Trial Rule13).

8. Duffy, 176 Ind. 575, 96 N.E. at 707.

9. Standley, 95 Ind. at 260.

10. For discussion of the evolution of Indianacourts, see Elizabeth R. Osborn, “IndianaCourts and Lawyers,” 1816-2004, in The History of Indiana Law 257 (David J.Bodenhamer & Randall T. Shepard, eds.,2006).

11. Standley, 95 Ind. at 261; Colt v. Hicks, 97 Ind.Ct. App. 177, 179 N.E. 335, 341 (1932).

12. Jewett Car Co. v. Kirkpatrick Const. Co., 107 F.622, 624 (C.C.D. Ind. 1901).

13. Duffy, 96 N.E. at 707 (internal quotationmarks omitted).

14. Fox v. Barker, 14 Ind. 309, 310 (1860).

15. City of Morgantown, W. Va. v. Royal Ins. Co.,337 U.S. 254, 257 (1949).

16. Jewett, 107 F. at 623-24.

17. Brower v. Nellis, 6 Ind. Ct. App. 323, 33 N.E. 672, 672-73 (1893).

18. 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice andProcedure §1401 at 4 (3d ed. 2010).

19. Coplay Cement, 983 F.2d at 1440.

20. Id.

21. Bacompt Sys., Inc. v. Ashworth, 752 N.E.2d 140,143 (Ind. Ct. App. 2001), trans. denied.

22. Id. at 143-46.

23. Streets, 378 N.E.2d at 919-20.

24. Matter of Compton’s Estate, 406 N.E.2d 365,372 (Ind. Ct. App. 1980).

25. Gov’t Interinsurance Exch. v. Khayyata, 526 N.E.2d 745, 746-47 (Ind. Ct. App. 1988).

26. Brenneman Mech. & Elec., Inc. v. First Nat.Bank of Logansport, 495 N.E.2d 233, 243-44(Ind. Ct. App. 1986), trans. denied.

27. Chauffeurs, Teamsters, Warehousemen &Helpers Local Union No. 135 v. JeffersonTrucking Co., Inc., 473 F. Supp. 1255, 1258(S.D. Ind. 1979), aff’d, 628 F.2d 1023 (7th Cir. 1980), cert. denied.

28. 752 N.E.2d at 143-46.

29. Id. at 143 (citing 1A William F. Harvey,Indiana Practice Series: Rules of ProcedureAnnotated §13.16 (3d ed. 1999)).

30. Id.

31. Id.

32. Jones v. Ford Motor Credit Co., 358 F.3d 205,211 (2d Cir. 2004); Cmty. State Bank Royal Ctr.v. O’Neill, 553 N.E.2d 174, 179 (Ind. Ct. App.1990) (recognizing utility of federal authorityin interpreting Rules 13(A) & (B)).

33. Vill. of Coll. Corner v. Town of W. Coll. Corner,766 N.E.2d 742, 748 (Ind. Ct. App. 2002)(internal quotation marks omitted).

34. Wright, Miller & Kane, supra, §1410 at 58-59;Middelkamp v. Hanewich, 173 Ind. Ct. App.571, 588, 364 N.E.2d 1024, 1035 (1977).

35. Federman v. Empire Fire & Marine Ins. Co.,597 F.2d 798, 812 n.21 (2d Cir. 1979).

36. Jones, 358 F.3d at 209.

37. Federman, 597 F.2d at 812 n.21.

38. Broadhurst v. Moenning, 633 N.E.2d 326, 331(Ind. Ct. App. 1994); Jensen v. Laudig, 490N.E.2d 405, 407 (Ind. Ct. App. 1986).

39. Hilliard v. Jacobs, 927 N.E.2d 393, 401 (Ind. Ct.App. 2010), trans. denied.

40. Wright, Miller & Kane, supra, §1410 at 52.

41. Estate of Kraus v. C.I.R., 875 F.2d 597, 600 (7th Cir. 1989).

42. Brief of Appellant, Walbridge v. JP MorganChase Bank, N.A., No. 02A03-1112-CC-589,2002 WL 34715643, at *5-11 (Ind. Ct. App.Feb. 9, 2012); Reply Brief of Appellant,Walbridge v. JP Morgan Chase Bank, N.A.,No. 02A03-1112-CC-589, 2012 WL 2922176,at *3-8 (Ind. Ct. App. May 31, 2012).

43. 14 Ind. 309.



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44. Walbridge v. JP Morgan Chase Bank, N.A.,No. 02A03-1112-CC-589, 2012 WL 3686058,at *1 (Ind. Ct. App. Aug. 28, 2012), trans.denied.

45. 1970 Civil Code Study CommissionComments, reprinted in Harvey, supra, at 467.

46. Reply Brief, 2012 WL 2922176, at *6-7.

47. 1970 Civil Code Study CommissionComments, supra note 45.

48. Originally codified at Rev. St. 1881, §276,recodified at §277 in Burns’ Rev. St. 1894, and finally at §2-226 in 1946. See Obermeyer v. Indianapolis Lien & Credit Co., 251 Ind. 382,241 N.E.2d 252, 254 (1968); Stewart v. Fralich,14 Ind. Ct. App. 260, 42 N.E. 951, 952 (1896)..

49. Burns Ann. Ind. Statutes §277 (1914);McWhorter v. Norris, 9 Ind. Ct. App. 490, 34N.E. 854, 855 (1893) (quoting Rev. St. 1881,§276).

50. Ind. T.R. 19(E)(2) superseded the other por-tion of section 226, requiring joinder of theassignor. Obermeyer, 241 N.E.2d at 254; CivilCode Study Commission Comments, reprint-ed in 2 William F. Harvey & Stephen E.Arthur, Indiana Practice Series: Rules ofProcedure Annotated R. 19 (3d ed.).

51. Goldthwait v. Bradford, 36 Ind. 149, 158(1871). The language is mirrored in otherstates. See, e.g., McMann v. H.F. Wilcox Oil & Gas Co., 250 P. 780, 782 (Okla. 1926).

52. Gavin v. Buckles, 41 Ind. 528, 530 (1873).

53. Goldthwait, 36 Ind. at 158-59.

54. 469 N.E.2d at 1185-87.

55. Id. at 1186-87.

56. Indiana Dep’t of State Revenue, Inheritance Tax Div. v. Estate of Daugherty, 938 N.E.2d315, 320 (Ind. T.C. 2010); Orick v. Morris, No.CIV. H 91-21, 1992 WL 18904, at *1-2 (N.D.Ind. Jan. 30, 1992); Gagan v. United ConsumersClub, Inc., No. 2:10-CV-026 JD, 2012 WL729943, at *4 n.3 (N.D. Ind. Mar. 6, 2012).

57. Chauffeurs, Teamsters, 473 F. Supp. at 1253.

58. John R. Gaskin, Note, “The Effect of theStatute of Limitations on CompulsoryCounterclaims: An Analysis of Present Indiana Law,” 19 Ind. L. Rev. 787 (1986).

59. Murray v. Mansheim, 779 N.W.2d 379, 386-88 (S.D. 2010); James v. Antilles Gas Corp.,43 V.I. 37 (Terr. Ct. 2000).

60. Walbridge, 2012 WL 3686058, at *2.

61. Ind. Appellate Rule 65(D).

62. Splittorff v. Aigner, No. 63A01-0606-CV-254,2007 WL 1217998, at *5 (Ind. Ct. App. 2007),trans. and cert. denied.

63. Estate of Daugherty, 938 N.E.2d at 320-21.

64. Id. at 321.

65. Coplay Cement, 983 F.2d at 1441.

66. Id.; 11 U.S.C. §§ 506(a), 553.

67. Justus v. Justus, 581 N.E.2d 1265, 1271 (Ind. Ct. App. 1991), trans. denied.

68. Indiana Dep’t of State Revenue, Inheritance TaxDiv. v. Smith, 473 N.E.2d 611, 614-15 (Ind.1985).

69. Brief of Appellants, Green Heart, Inc. v. Miller,No. 49A02-1201-PL-00047, 2012 WL 1430678,at *7 & *14 (Ind. Ct. App. Mar. 26, 2012).

70. Brower, 33 N.E. at 673.

Colin E. Flora is an associate civil litiga-tion attorney who focuses his practice on appeals, class actions, business disputes and personal injury cases withIndianapolis-based Pavlack Law, LLC.He obtained his bachelor’s degree inpolitical science from Indiana UniversitySouth Bend in 2008 where he benefited

from selection into the inaugural class of Herbert Presidential Scholars andgraduated with high distinction. In 2011,he graduated with honors from the I.U.McKinney School of Law. Colin hasauthored several law review articles and more than 100 lengthy posts for the Hoosier Litigation Blog.


RG 03.15_RG 09.05 3/6/15 9:03 AM

Judges, lawyers and law stu-dents with impairments thatthreaten to derail their careers,

their lives and the lives of othershave somewhere to turn for confi-dential and effective help. Unfor-tunately, many ignore the earlywarning signs, sending them downa dangerous and avoidable path.

Steve, a lawyer in northernIndiana, knows this all too well.1

He ignored the warning signs ofsubstance abuse and depression and found himself in a fetal posi-tion, unable to get out of bed.Ultimately, with the help of theJudges & Lawyers AssistanceProgram, he got his life and his practice back.

After working as in-housecounsel, Steve took a job in privatepractice with a large law firm, doing corporate work and mergers& acquisitions. “I worked a millionhours both in-house and in privatepractice. I burned the candle atboth ends,” he said. After return-ing to private practice, Steve foundthat he did not have many clients,which added to the pressure. “I was just exhausted and begin-ning to notice some signs of some-thing that I didn’t know what it was at the time, but ultimately it was diagnosed as depression.”

According to Steve, thingsbegan to unravel when his wifethreatened to divorce him and take

their kids if they didn’tbuy a bigger house. A bigger house soonfollowed and so diddisaster. Steve col-lapsed the week afterbuying the new house.He couldn’t get out ofbed and stayed in thefetal position. Whenhe finally did manageto get out of bed forwork he couldn’t actu-ally drive into the lawfirm’s parking garage.

“I went around the block probablyfor 90 minutes because I couldn’tturn into the parking garage,” Steve said. He used his cell phoneto keep in contact with his law firmand his clients, but he didn’t tell his wife what he was going through.After three days of this charade, an attorney from the firm calledSteve’s wife to ask where he was.Steve’s wife confronted him, andSteve tried to pull himself together.He talked with the firm but got no solace. Instead, it made mattersworse. The firm told Steve therewas no guarantee his position at the firm was safe.

Steve avoided getting the helphe needed and also began avoidingpeople. “An impaired lawyer can do a lot of damage to our legal sys-tem,” said Terry Harrell, JLAP’sexecutive director since 2002. “Thebest way to avoid this is to get helpup front.” Harrell, a lawyer andlicensed clinical social worker,oversees JLAP’s operations.2

JLAP has a downtownIndianapolis office, which employstwo clinical case managers, who are both trained social workers, a northern Indiana case managerand a deputy director, who is also a social worker and a lawyer. An office manager rounds outJLAP’s office staff. In addition,JLAP utilizes about 400 volunteersstatewide, who serve as both moni-tors and mentors. Monitors areresponsible for monitoring compli-ance with an agreement with theIndiana Disciplinary Commission.Mentors are used in a variety ofcapacities, often even before some-one gets into trouble with theDisciplinary Commission. This canrange from having a cup of coffeewith someone who is feeling partic-ularly stressed to speaking at barassociation meetings.

Despite the availability of theseresources, like many others Stevefailed to seek professional help until

it was nearly too late. Steve foundhimself curled up in bed againunable to go to work. Steve said his wife tried to drag him out ofbed, which then made him feel as though he was having a heartattack. He was diagnosed at a localhospital as having a major depres-sive disorder with suicidal ideation.

But Steve’s odyssey was farfrom over. He separated from hiswife, and then his law firm firedhim. In the three months that followed, Steve got two DUIs. “I was absolutely suicidal at thatpoint,” Steve recounted. “I was so depressed I couldn’t find thestrength to act on my suicidal ideas.It was a very serious situation.”

What happened next may have saved Steve’s life. He receiveda letter from the DisciplinaryCommission. He was told that if hewanted to get his law license backhe should work with JLAP. Stevevividly remembers something elsethe Disciplinary Commission toldhim: “If you don’t, that’s fine too,but you should at least get somehelp from JLAP.”

JLAP provided Steve with some peace of mind and reassur-ance. JLAP also helped Steve find a new psychiatrist who listened tohis concerns about the side effectsof his medications. But more chal-lenges awaited. As Steve’s divorceproceedings ramped up, he becamesuicidal, and he began drinkingagain. A third DUI soon followed.Steve got back in touch with JLAP,and with JLAP’s help and assistancefrom others, Steve has been sobersince April 2007. “I am very gratefulto JLAP for helping me get throughthat,” Steve said. “I am quite confi-dent I would have not gottenthrough that without JLAP.”

Despite all of this, Steve wasstill not out of the woods. A littlemore than two years after contact-ing JLAP and getting sober, Stevewas diagnosed with Stage 3 rectal

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Hon. Tim A. BakerU.S. Magistrate Judge

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WHERE TO

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RG 03.15_RG 09.05 3/6/15 9:03 AM

cancer. At that time Steve hadalmost caught up on his continuinglegal education requirements andhad nearly gotten his law licenseback. Steve underwent chemothera-py, radiation and surgery. For atime he could feel himself spiralingdownward, but with help from hisJLAP counselor he was able to keepa positive attitude. He also receivedsome financial help for his medica-tions from the JLAP treatmentfund. Steve’s cancer is now inremission, and he is working as a sole practitioner. “It’s not like it used to be, and that’s okay,” he said.

Steve encouraged others whomay be experiencing similar issuesto seek help early.

“If they can call JLAP thatwould be great,” Steve said. “I knowfrom personal experience I wasn’twilling to do that early enough.”

Steve also encouraged colleagues,friends and family members toreach out to others if they see anyearly warning signs.

According to Harrell, JLAPreceived 253 “Calls for Help” in2014.3 A Call for Help is a call bysomeone seeking JLAP’s assistanceor intervention, either on behalf of him or herself or a third party.About half of those calls are onbehalf of the caller, and the otherhalf represent third-party calls seeking help for a family member,friend or colleague. These callscomprise about 85-90 percent ofthe people who use JLAP services,Harrell said. The remaining 10-15percent are formal referrals fromthe Disciplinary Commission or the State Board of Law Examiners.Mental health and addiction issuesare by far the most common reasons JLAP is contacted.

All self referrals and third-party referrals to JLAP are com-pletely confidential. The only timeJLAP becomes involved with theDisciplinary Commission is whenJLAP is asked to provide assistancein recovery. Such a request may bemade either by the attorney facingdiscipline or by the DisciplinaryCommission, but in either caseJLAP requires the attorney to sign a release before JLAP shares anyinformation with the DisciplinaryCommission. The confidentiality ofthe process is expressly embodiedin Indiana Admission & DisciplineRule 31, which governs JLAP.4

Don Lundberg, executive secretary of the DisciplinaryCommission from 1990 to 2008,said he and former JLAP executivedirector Susan Eisenhauer quickly



RG 03.15_RG 09.05 3/6/15 9:03 AM

“got on the same wavelength”about the vital importance of confi-dentiality of JLAP’s services forlawyers who self-referred or other-wise came to JLAP by some routeother than through the DisciplinaryCommission. Now a partner at Barnes & Thornburg LLP,Lundberg said he and Eisenhauerhad many conversations about how to quash any inaccurate suspi-cions that there were back-channelcommunications between theDisciplinary Commission andJLAP. Rather, JLAP gave theDisciplinary Commission a mean-ingful and trusted resource to cre-ate probation conditions that werefair, but demanded accountability.

“It is outside the DisciplinaryCommission’s skill set to micro-manage probation for addictionand mental health issues,”Lundberg said. “JLAP filled that void.”

Despite JLAP’s strict confiden-tiality, people remain hesitant tocontact JLAP when early warningsigns arise, only to later wish theyhad reached out to JLAP sooner.Ricky is one such lawyer. “It wouldhave saved me a lot of pain,” said Ricky, who works in centralIndiana. Ricky’s warning signs firstappeared in law school, when hegot his first DUI. “I didn’t think I had a drinking problem,” saidRicky. “I thought I made a baddecision.” Another DUI followedafter law school.

That’s when the DisciplinaryCommission became involved, andhis law license was suspended forsix months. A couple of months of sobriety followed. “If you wouldhave hooked me up to the lie detec-tor at that point I would havepassed,” Ricky said. “I was notgoing to drink anymore. And with-in a couple of weeks I was finished.”

He began drinking again, and a third DUI followed. Another 6-month law license suspension followed, but this time withoutautomatic reinstatement. Rickywent to treatment, which includeda recovery residence. He agreed to have JLAP monitor his compli-ance. His JLAP counselor, TimSudrovech, a licensed clinical socialworker, became his savior. “He’ssuch a good friend of mine now,”said Ricky, who hopes to get his law license back.

The DUIs forced Ricky to gethelp. Before doing so, Ricky felthopeless. But he stressed that lifedoesn’t have to be a “hot mess”before seeking help. “Even if yourpractice is just a little off balance,JLAP can help,” he said, adding thatwith alcoholics a lot of times theircareers are over before they seekhelp. “JLAP is a resource. It cansave lives and careers,” Ricky said.February 2015 marked Ricky’s sixthyear of sobriety. He still laments the lost hugs from his daughter asamong the most painful costs of hisaddiction. Thankfully, today Rickydescribes his life as fantastic. “I’vebeen able to be a dad, a husbandand a brother. I sit on a handful ofboards. All of these things I’m ableto do – it’s because I am sober.”

Harrell stressed that the pro-gram is not just for people sufferingwith substance abuse issues. Harrellsaid JLAP can help in all types ofsituations, such as aging, depressionand the stress of practicing law. For example, law practices can suffer if a lawyer is going through a nasty divorce or experiences aserious medical illness or a familymember requires hospice care.“They are human beings,” Harrellsaid. “When we’re going throughstressors we drop the ball some-times.”

Indiana State Bar President JeffHawkins is an unabashed testamentto the varied reasons for seeking

JLAP continued from page 23


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professional help – and the reliefthat comes from doing so. At lastOctober’s Assembly Luncheon during the State Bar’s fall meeting,Hawkins shared a very personalstory. Three years before that lun-cheon, Hawkins said, he realizedfor the first time that he had beenliving with Attention DeficitDisorder for more than 45 years.Hawkins explained how he hadalways struggled to read and retaininformation or to block out a dis-traction. It wasn’t until Hawkinssaw a PBS program called “ADDand Loving It” that he realized he needed professional help.

“As the staff of the Judges & Lawyers Assistance Program and the Indiana DisciplinaryCommission can tell you, too manyseek elusive relief through self-medication with drugs and alcohol.Fear of stigmatization and margin-alization often discourages peoplefrom seeking and receiving help.Think about it for a moment: Canyou imagine how difficult it is forone of our members to admit thatthey suffer from mental impair-ment? I can tell you that crossed my mind, but my own liberatingexperience inspired me to plow the way for others to discover lifeafter impairment.”5

Soon after getting the medicalhelp he needed, Hawkins’ produc-tivity increased dramatically, andhis past struggles with the symp-toms of ADD ended. Hawkinsencouraged others at the lun-cheon to “reach out and show love and compassion for our fellow lawyers.”

That is exactly what Lundberghad in mind when he worked withEisenhauer after she became thefull-time director in November1999. Lundberg recounted an alco-hol-related case that arose not longthereafter in which a lawyer on probation and under JLAP supervi-sion missed a call-in for a random

alcohol screening. Lundberg had to determine whether to take azero-tolerance approach or a moreholistic approach. Circumstances of the case made Lundberg under-stand that the missed screen wasnot an effort to cover up a return todrinking. “We did a little tweaking,but mostly just let the lawyer returnto carrying out the terms of proba-tion,” Lundberg said. “This lawyersucceeded, went off probation, andwent on to become a JLAP monitorand mentor to many lawyers strug-gling with alcohol dependency. I see that lawyer today – he is afriend, and it gives me great plea-sure to know that we took the right approach by being supportivewithout enabling.”

Harrell laments that not everyJLAP case has a happy ending.Fortunately, JLAP success storiesabound. While confidentiality rulesprevent the public from knowingthe extent of how many lives andcareers JLAP has helped save, Steveand Ricky can attest to the fact thatJLAP is literally a lifesaver. “I felthopeless,” Ricky said. “I didn’tthink there was a way out.” JLAPprovided the way. �

1. “Steve” is a pseudonym for the actual name of this attorney. Likewise, “Ricky” is a pseudo-nym for the lawyer referenced later in this arti-cle. The author interviewed both lawyers afterthey agreed to have their stories included inthis article.

2. Research shows that lawyers suffer fromdepression, substance abuse and stress at high-er rates than the general population due inlarge part to social influences in the work envi-ronment, heavy workloads, and stress attrib-uted to working with clients. Attorneys andSubstance Abuse, Hazelden’s Butler Center for Research (2012). Some estimates reportlawyers are four times more likely than thegeneral population to suffer from depression,and the Centers for Disease Control &Prevention ranks lawyers fourth in proportionof suicides by profession. See Rosa Flores andRose Maries Arce, “Why are lawyers killingthemselves?” CNN.com, Jan. 20, 2014,www.cnn.com/2014/01/19/us/lawyer-suicides/index.html; Laura Rothstein, “LawStudents and Lawyers with Mental Health and Substance Abuse Problems: Protecting the Public and the Individual,” 69 U. Pitt. L.Rev. 531 (2008). The rate of alcohol abuse for lawyers is 18 percent compared to 10 per-cent for the general population. Hazelden’s

Butler Center for Research, supra. Prescriptiondrug abuse and chemical dependency are alsohigher among legal professionals. See generallyCommission on Lawyer Assistance Programs,American Bar Association (2013); Rothstein,supra.

3. JLAP can be reached by calling 317/833-0370or toll free at 866/428-5527, or on the Web at www.in.gov/judiciary/jlap.

4. In addition to containing strict confidentialityprovisions, Rule 31 explains the purpose ofJLAP is “assisting impaired members in recov-ery; educating the bench and the bar; andreducing the potential harm caused by impair-ment to the individual, the public, the profes-sion, and the legal system.” Rule 31 furtherexplains that the JLAP committee “will provideassistance to judges, lawyers and law studentswho suffer from physical or mental disabilitiesthat result from disease, chemical dependency,mental health problems or age that impairtheir ability to practice; and will support other programs designed to increase awarenessabout the problems of impairment amonglawyers and judges.”

5. Excerpt of “Adapt & Overcome,” ISBA PrezBlog, https://isbaprezblog.wordpress.com (Nov.12, 2014). Hawkins revisited mental healthissues in another Prez Blog post, “Let’s talkabout lawyer mental health,” ISBA Prez Blog,https://isbaprez.wordpress.com (Dec. 12,2014), which also encourages bar members tobe JLAP volunteers. Hawkins’ predecessor asISBA president, Jim Dimos, also has trumpet-ed the compassion and support JLAP provides.See “You’ve Got a Friend,” ISBA Prez Blog,http://isbaprez.wordpress.com (Feb. 4, 2014).

Tim A. Baker is a U.S. magistrate judgein the Southern District of Indiana in Indianapolis. In January 2014, the Indiana Supreme Court appointedhim to Indiana’s Judges & LawyersAssistance Program Committee.


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Introduction

When I was preparing lastmonth’s column review-ing 2014 lawyer disci-

pline decisions, I got to wonderingabout the several cases in whichRule of Professional Conduct8.4(d) was in play. For those whohave not committed the Rules ofProfessional Conduct to memory,that rule states: “It is professionalmisconduct for a lawyer to engagein conduct that is prejudicial to theadministration of justice.” What isthis prejudice to the administrationof justice we talk about? Surely thecomments to Rule 8.4 will tell us.Wrong. The comments containnothing helpful.

The Rules of ProfessionalConduct are primarily a guide tolawyers so they can regulate theirown conduct and only secondarilya set of standards against whichlawyer conduct is measured in professional discipline proceedings.For both reasons, it is importantthat lawyers be able to understandwhat they must do and avoid doing.One can’t refrain from conduct that one doesn’t know is prohibit-ed. But also, when it comes to thegovernment acting as an enforcer of standards, an important elementof due process is that it must giveus fair advance notice of what weshould and should not do to stayout of trouble. One important way

to keep the power ofgovernment in checkis to require it to com-mit itself in advance to what the rules of the game are so that it is not in a positionto take punitive actionagainst citizens justbecause governmentactors don’t happen to like particular

behavior. In a nutshell, this is therule of law.

When it comes to regulatingconduct prejudicial to the adminis-tration of justice, it reminds me ofJustice Potter Stewart’s famousobservation about obscenity whenhe stated he couldn’t define it, buthe knew it when he saw it. Jacobellisv. Ohio, 278 U.S. 184, 197 (1964)(Potter, J., concurring). That sort of after-the-fact assessment shouldnot be acceptable when, in the caseof lawyer regulation, a lawyer’smeans of livelihood and profession-al standing hang in the balance. I guess that’s why I find Rule 8.4(d)to be a little scary. Is it beingenforced against lawyers for con-duct that could not be predicted in advance as being contrary to thatrule? Is it being thrown on top ofother, more specific violations as an afterthought?

To try to shed some light onthe meaning of conduct prejudicialto the administration of justice as it is actually used in the real world,I looked at all decided lawyer disci-pline cases in which Rule 8.4(d) wascharged during the 5-year periodfrom 2009 through 2014. This is a summary of that review.

But first, an opening comment

My quest was made difficult bythe fact that many lawyer disciplinedecisions, especially ones decided in relatively brief, published ordersrather than fully developed per curi-am opinions, often don’t analyzewhy particular conduct violatesRule 8.4(d). A number of publishedorders are even more opaque – theydescribe more than one count ofmisconduct without specifying to which count or counts the Rule8.4(d) violation applies. The readeris left to speculate about whatcounts a particular rule violation, in this case Rule 8.4(d), applies.Moreover, it is unusual for the

Court to go beyond the bare con-clusion that the lawyer’s conductviolated Rule 8.4(d) to state how the conduct was prejudicial to the administration of justice.Sometimes it’s obvious, but notalways.

A case that starkly illustratesthis is Matter of Denney, 983 N.E.2d571 (Ind. 2013). In that case therespondent was charged with nineseparate counts of misconduct. The Court identified 15 separaterules, including Rule 8.4(d), theCommission alleged the respondenthad violated and the Court con-cluded had been violated. However,none of the many rule violationswere associated with the counts ofmisconduct. The decision is totallyunhelpful in assisting the reader to decipher what it was the respon-dent did to act prejudicially to theadministration of justice.

There was one notable excep-tion in which the Court carefullyspelled out each of the alleged ruleviolations that applied to each offour counts of misconduct – theRule 8.4(d) violation related only tothe third of four counts. Matter ofAdolph, 969 N.E.2d 8 (Ind. 2012).The case was decided by the Court’sacceptance of a conditional agree-ment for discipline, so there was no occasion for the Court to closelyanalyze whether the facts supporteda particular rule violation on acount-by-count basis, yet it madethe laudable effort to associate rule violations with specific counts.In this case, the Court did give aglimpse into its thinking about Rule8.4(d): “The reliability of lawyers’representations is an integral com-ponent of the fair and efficientadministration of justice.” Id. at 10,quoting Fire Ins. Exchange v. Bell,643 N.E.2d 310, 313 (Ind. 1994).

But I think I might have spot-ted a tentative favorable trend. In some recent multi-count cases,

ETHICS CURBSTONE

Meandering through the back alleyways of Rule 8.4(d):What is conduct prejudicial to the administration of justice?

By Donald R. Lundberg


Donald R. LundbergBarnes & Thornburg LLP

Indianapolis, [email protected]

RG 03.15_RG 09.05 3/6/15 9:03 AM

the Court seems to be making anextra effort to associate particularrule violations with specific counts.In the recent case of Matter ofAlexander, 10 N.E.3d 1241 (Ind.2014), a contested case decided bypublished order, the Court clearlypointed out that an alleged Rule8.4(d) violation related to Count 2only. In another recent case, Matterof Geller, 9 N.E.2d 643 (Ind. 2014),which was a per curiam opinionafter a contested hearing before ahearing officer, the Court discussedeach count separately and specifiedwhich rules applied to each count.On the other hand, in a recent pub-lished order of discipline based on a conditional agreement for disci-pline stating two counts of miscon-duct, the Court simply identifiedevery rule in play without specify-ing which rule violations applied to which count.

It would be a great service tothe bar if the Court would identifyon a count-by-count basis the rulesin play. Because one of the purpos-es of publicizing disciplinary deci-sions is presumably to educate thebar, we are better served if we knowwhat rule violations apply to whatconduct. In the meantime, I havehad to do my best to decipherwhich counts of misconduct in mysurvey cases dealt with Rule 8.4(d).

A 5-year review of Rule 8.4(d) cases

Over the course of the 5-yearsurvey period, 52 lawyer disciplinecases dealt with Rule 8.4(d). Thebreakdown by year is:

• 2009 – 7 cases

• 2010 – 7 cases

• 2011 – 8 cases

• 2012 – 8 cases

• 2013 – 11 cases

• 2014 – 11 cases

Although not dramatic, the trend in 8.4(d) cases is upward.

Prosecutors and notaries

One category of 8.4(d) casesaccounts for the plurality of them.When prosecutors are charged andfound guilty of misdemeanors, theywill be found to have engaged inconduct prejudicial to the adminis-tration of justice in violation ofRule 8.4(d), even when a non-pros-ecutor would not be charged whenthe criminal conduct does notreflect adversely on honesty, trust-worthiness or fitness as a lawyer inother respects so as to be a violationof Rule 8.4(b). The rationale forthis different treatment is that aslaw enforcers, prosecutors shouldnot be lawbreakers, and when theyare, it breeds public disrespect forthe law. I discussed this in an earliercolumn. “The Disappearing FirstFree Bite of the DUI Apple,” Vol.55, No. 9 Res Gestae 33 (May 2012).Eleven of the 52 cases in the surveyperiod fall into this category.

Another case category that willgenerally draw an 8.4(d) charge,often in addition to other rule violations, involves claims that a lawyer has directly or indirectlymishandled or caused others to mishandle responsibilities as notaries public. Three cases fall into this category.

Regardless of the fact that Rule8.4(d) does not expressly apply toprosecutorial criminal conduct ornotary public-related misconduct,these case interpretations of therule should make it unsurprisingthat Rule 8.4(d) will continue to beapplied to this conduct in thefuture.

Court-focused misconduct

Another group of 8.4(d) caseshas as a unifying theme claims thatthe respondents disregarded dutiesto tribunals or acted in a way that


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caused inconvenience or otherharm to tribunals. It is somethingof a mixed bag of cases.

Some respondents violatedduties to tribunals to the pointwhere they were held in contemptof court or otherwise sanctioned.See, e.g., Matter of Benson, 9 N.E.3d659 (Ind. 2014) (disregarded court

order to not distribute funds; heldin contempt); Matter of Lehman,3 N.E.3d 536 (Ind. 2014) (lawyerfound in contempt for failing toappear for client’s criminal case;other disregard of duties to courts);Matter of Criss, 999 N.E.2d 848(Ind. 2013) (failure to appear asdefense counsel in criminal cases;

ETHICS CURBSTONE continued from page 27


failure to respond to show causeorder); Matter of Weldy, 989 N.E.2d1252 (Ind. 2013) (lawyer sanc-tioned by both trial court andCourt of Appeals); Matter of Adolf,969 N.E.2d 8 (Ind. 2012) (lawyersanctioned for deceptive conductrelated to securing default judg-ments); Matter of Royer, 961 N.E.2d991 (Ind. 2011) (lawyer held incontempt for disregarding estatesand inconveniencing the court);Matter of Shapiro, 937 N.E.2d 806(Ind. 2010) (bench warrant forlawyer who failed to appear andprovide an accounting); and Matter of Mattson, 924 N.E.2d 1248(Ind. 2010) (contempt of Court of Appeals for filing defectiveappeal papers).

When a lawyer is found in contempt of court or sanctioned, it is no surprise that the conductwould be viewed as prejudicial tothe administration. The more inter-esting point worth pondering iswhy discipline was pursued in thesecases and not in the many othercases in which lawyers are sanc-tioned. The cases shed no light onthis question. One could argue thatcourt sanctions should generally be viewed as sufficient to addresscourt-related lawyer misbehaviorand that something more should bepresent for professional disciplineto be added on top of court sanc-tions. There are good reasons whyprofessional discipline might fol-low, particularly when the sanc-tioned conduct is outrageous orpart of a pattern. We are left toguess, however, about the addition-al factors present in the above casesthat resulted in the lawyers alsobeing subjected to professional discipline.

Even in the absence of con-tempt findings or sanctions, lawyermisrepresentations that involvecourts will often result in a Rule8.4(d) charge, even though the


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same conduct would generally becovered by (and in many cases wasalso charged under) Rule 3.3(a)(1)or other rules dealing with dishon-esty, such as Rule 8.4(c). See, e.g.,Matter of Montgomery, 2 N.E.2d1261 (Ind. 2014) (lawyer’s falseclaim that he was suffering from abrain tumor); Matter of Usher, 987N.E.2d 1080 (Ind. 2013) (knowing-ly making false statements of fact ina civil action and a disciplinary pro-ceeding to which he was a party);Matter of Adolf, 969 N.E.2d 8 (Ind.2012) (misrepresenting the reasonfor the opposing party’s nonap-pearance); Matter of Kuchaes, 961N.E.2d 996 (Ind. 2012) (misleadingcourt about prior, related litiga-tion); Matter of Broderick, 929N.E.2d 199 (Ind. 2010) (signingdeferral agreement misrepresentingthat client had no prior arrests);Matter of Laterzo, 908 N.E.2d 610(Ind. 2009) (employing a false

identity ploy in the course of repre-senting a criminal defendant).

Sometimes more passive con-duct that inconveniences courts willresult in a finding that the respon-dent violated Rule 8.4(d). See, e.g.,Matter of Dilk, 2 N.E.3d 1263 (Ind.2014) (appearing for defendants inmortgage foreclosure cases merelyto slow the process down); Matterof Holcomb, 989 N.E.2d 1250 (Ind. 2013) (failure to timely moveprobate estate actions); Matter ofBarkes, 970 N.E.2d 663 (Ind. 2012)(multiple claims of non-diligence in handling actions before courts);Matter of Clifton, 961 N.E.2d 18(Ind. 2011) (disregard of Court ofAppeals criticisms about deficien-cies in appellate practice); Matter of Lambka, 950 N.E.2d 301 (Ind.2011) (general lack of diligence inpursuing matters before courts);Matter of Kelly, 917 N.E.2d 658(Ind. 2009) (inattention to client

matters before courts); and Matterof Zirkle, 911 N.E.2d 572 (Ind.2009) (failure to appear at courthearings). In many of theseinstances, other, more specific ruleswould also cover the misconduct in question, and we are left to guesswhy the Commission reached intoits quiver and pulled out a Rule8.4(d) arrow.

Sometimes the interferencewith court functions involves phys-ical violence or other in-court mis-behavior and leads to a Rule 8.4(d)violation. See, e.g., Matter of Geller,9 N.E.3d 643 (Ind. 2014) (physicalaltercation with former client inenvirons of juvenile court court-room); In re May, 992 N.E.2d 684(Ind. 2013) (physical altercationwith client in courtroom); Matter of Butsch, 899 N.E.2d 647 (Ind.2009) (intoxication while repre-senting clients in court).

Rule 8.4(d) as an add-on

One case in the survey periodthat illustrates the use of Rule8.4(d) as an add-on when other,more specific rules address the con-duct is Matter of McKinney, 948N.E.2d 1154 (Ind. 2011). In thatcase a deputy prosecutor handledasset forfeiture cases for the State in which he also had an interest as a private attorney. The obviouscharges growing out of this conductwould be based on the rules gov-erning conflicts of interest, includ-ing a special rule about conflicts of interest for part-time deputyprosecutors – Rule 1.8(l). But theCommission also charged therespondent with engaging in con-duct prejudicial to the administra-tion of justice. The Court agreedthat the respondent had violated all rules charged without explainingwhy a Rule 8.4(d) violation addedanything to the case that was notfully covered by the charges basedon conflict of interest. The Courtalso did not explain why the con-flict of interest charged in this case,



RG 03.15_RG 09.05 3/6/15 9:03 AM

which we often find in other casesunaccompanied by a Rule 8.4(d)charge, qualified for having a Rule8.4(d) violation added.

Actions by lawyers that affectthe integrity of the lawyer disciplineprocess will often be viewed asbeing conduct prejudicial to theadministration of justice. See, e.g.,Matter of Kinnard, 2 N.E.3d 1267(Ind. 2014) (lawyer filed frivolousdefamation suit against opposingparty in retaliation for filing a disci-plinary grievance); and Matter ofDimick, 969 N.E.2d 17 (Ind. 2012)(lawyer threatened to report profes-sional misconduct as leverage toobtain a settlement proposal).

Odds and ends

Setting aside the cases dis-cussed above, this leaves us with a relatively small group of harder-to-categorize cases in which lawyerswere found to have engaged in con-duct prejudicial to the administra-tion of justice. In Matter ofAlexander, 10 N.E.3d 1241 (Ind.2014), the respondent failed totimely disclose a witness’ 180-degree change in testimony fromwhen she was earlier deposed byopposing counsel, then called as awitness to testify contrary to howthe opposing party expected shewould testify. In Matter of Schalk,985 N.E.2d 1092 (Ind. 2013), therespondent attempted a form ofvigilante justice by trying to run an amateur sting operation in an attempt to cause an informantagainst his client to be caught inpossession of marijuana. In Matterof Stoops, 989 N.E.1256 (Ind. 2013),the respondent was charged withviolating Rule 8.4(d) as a seemingadd-on to the more straightforwardclaim that he engaged in animproper ex parte communicationin violation of Rule 3.5(b). InMatter of Hemphill, 971 N.E.2d 665(Ind. 2012), the respondent tookmatters into her own hands bypicking up her client’s children

from school after it was alleged by her client that their father wasabusing them. In Matter of Cotton,939 N.E.2d 619 (Ind. 2010), therespondent engaged in ex partecommunications and secured mod-ification of a court order by a judgenot assigned to a case. Rule 8.4(d) isoccasionally used to address prose-cutorial misconduct that does notfall squarely within other rules. In Matter of Barce, 934 N.E.2d 732(Ind. 2010), a prosecutor continuedto prosecute cases after putting hislaw license in inactive status.

One of the more perplexingRule 8.4(d) cases is Matter ofFulkerson, 912 N.E.2d 822 (Ind.2009). The primary allegation inthat case was that the respondentfalsified the identity of a formerclient so she could accompany the respondent to the jail to visit a client who was the former client’sboyfriend. This conduct would,

of course, be misconduct for otherreasons, but we are left to guesswhy it is also conduct prejudicial tothe administration of justice sincethe court system was not directlyimplicated. The Court did notexplain.

Conduct not prejudicial to the administration of justice

Of the cases in the survey period involving Rule 8.4(d), the Disciplinary Commission failedto prove its charge in two cases,both decided in 2014. It might beinstructive to our effort to under-stand what a Rule 8.4(d) violationis if we know what it’s not.

In Matter of Ogden, 10 N.E.3d499 (Ind. 2014), Count 2 of twocounts of misconduct included theclaim that the respondent violatedRule 8.4(d) when he sent a letter


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communicating his views about thehandling of civil forfeiture actionsto Marion County judges who hadjurisdiction over that category ofcases. The respondent did not rep-resent clients in any civil forfeiturecases pending before the judges atthe time he sent the letter, and hesent a copy to the county prosecu-tor. This presumably eliminatedany basis for claiming that the letterwas an improper ex parte commu-nication. Although the rule pro-hibiting ex parte communications is unclear about whether it appliesto lawyers who are not representingparties in a case. It states: “A lawyershall not communicate ex partewith [a judge] during the proceed-ing unless authorized to do so bylaw or court order.” Rule 3.5(b).We don’t know why the Commis-sion did not charge the respondentwith violating Rule 3.5(b) –whether it was because the respon-dent did not represent any partiesin proceedings before the judges orbecause he sent a copy of the letterto the prosecutor. In any event, theCommission charged the respon-dent with violating Rule 8.4(d)because it believed the letter was“an improper attempt to influencethe judges’ decisions” in thosecases. Id. at 501. The Court rejectedthe Commission’s position, stating:“It was not an attempt to commu-nicate with the judges about anyparticular case without the involve-ment of opposing parties. There isno allegation that Respondent mis-stated the law relating to forfei-tures.” Id. at 502.

In Matter of Devlin, 4 N.E.3d1180 (Ind. 2014), in a very brieforder, the Court found that theCommission failed to prove itsentire case, including its charge that the respondent violated Rule8.4(d). The case appears to havebeen primarily a claim that a crimi-nal prosecutor failed to discloseexculpatory evidence in violation

of Rule 3.8(d). But the Commissionalso charged a violation of Rule8.4(d). It is impossible to tell fromthe Court’s order whether theCommission charged a violation of Rule 8.4(d) because there wasallegedly discrete conduct that wasnot fully covered by Rule 3.8(d) orwhether the Rule 8.4(d) violationwas simply an additional chargethat added nothing to what wascovered by the Rule 3.8(d) claim. If the respondent’s alleged (butunproven) conduct was covered by a specific rule, Rule 3.8(d), it isworth wondering why there is anyneed to add a general Rule 8.4(d)claim to a claim based on a rulespecifically tailored to the conductat issue.

Conclusion

After this little tour de 8.4(d),what do we know that we didn’tbefore? I posit very little. Withsome minor exceptions, Rule 8.4(d)misconduct is tied to the conductof the courts in some way.However, court-related misconductis often covered by specific rules.Sometimes the Commissioncharges a lawyer with violating the specific rule without adding on a claim that the lawyer also vio-lated Rule 8.4(d). Other times theCommission adds on a Rule 8.4(d)violation. One can argue both sidesof the question whether a Rule8.4(d) violation should be added inthese circumstances. But it wouldbe nice to know what that rationaleis and more importantly what leadsthe Commission to add on a Rule8.4(d) violation to charges in somecases but not others.

On balance, though, this survey reassured me that theCommission rarely turns to Rule8.4(d) to charge a lawyer with mis-conduct when no other rule fits andthe lawyer could not have reason-ably predicted that the conductwould be viewed as being prejudi-

cial to the administration of justice.Ogdenmight be an exception. In that case, the only basis for theclaim that the respondent engagedin misconduct in Count 2 was thathis conduct violated Rule 8.4(d).Because the respondent was notacting in a representative capacity(and sent a copy to the prosecutor,to boot), the rule governing ex partecommunications was inapplicable.The respondent’s conduct differedlittle in substance from chatting a judge up at a bar function aboutsimilar concerns in the prosecutorpresence. This case stands out as a rare example of the Commissionrelying on Rule 8.4(d) to chargemisconduct when the conduct isspecifically not prohibited by moretargeted rules – in particular Rule3.5(b). That said, there is some-thing disquieting about a lawyer-bystander intermeddling in a caseor category of cases by sending aletter to a judge that is the roughequivalent of an amicus curiae brief– regardless of the fact that theprosecutor is sent a copy.

Must we end where we began?I’m afraid so. I can’t define conductprejudicial to the administration of justice, but I think I know itwhen I see it (or maybe not). �



ISBA members:

Update youraddresses

email & postal online at

www.inbar.org

RG 03.15_RG 09.05 3/6/15 9:03 AM

In October, the IndianaSupreme Court issued five civilopinions and granted transfer

in four civil cases. The IndianaCourt of Appeals issued 21 pub-lished civil opinions. The full textsof these opinions are available via Casemaker at www.inbar.org.

SUPREME COURT DECISIONS

Supreme Court declares genuine issues of fact prevent summary judgment on discovery rule and activefraudulent concealment claims,but held that school does notowe parent duty to disclosewrongful acts against student

A severely disabled studentchoked during lunch and ultimatelydied. Her parents filed a Notice of Tort Claim against the school

well beyond the 180days required by theIndiana Tort ClaimsAct, but argued theirnoncompliance shouldbe excused because of substantial compli-ance, the discoveryrule or fraudulentconcealment.

A unanimousSupreme Court inLyons v. RichmondCmty. Sch. Corp., 19 N.E.3d 254 (Ind.2014) (Massa, J.), heldthat substantial com-pliance “cannot existwhen the claimanttook no steps whatso-ever to comply withthe notice statute.”The Court also heldthat material issues of fact remain as towhether the discoveryrule should apply toexcuse the Lyonses’

noncompliance with the ITCAnotice requirement.

The Court then analyzedfraudulent concealment as two separate inquiries: active conceal-ment and passive concealment. The Court concluded that “a factfinder could reasonably find the defendants committedactive fraudulent concealment”and, thus, summary judgment was inappropriate.

Passive fraudulent conceal-ment requires a relationshipbetween the parties such that thedefendant has a duty to disclose thealleged wrongful act to the plaintiffand a breach of that duty. The par-ents argued a duty to disclose exist-ed based on (1) the common-lawdoctrine of in loco parentis; (2) theFederal Family Educational Rights& Privacy Act; and (3) a generalpublic policy favoring disclosure of student information to parents.

The Court rejected all of thesearguments, concluding Indiana hadnever recognized the doctrine of inloco parentis to confer a duty upona school to disclose information to a student’s parents; the FamilyEducational Rights & Privacy Actcreated no duty; and “although we are sympathetic to the Lyonses’public policy arguments, we mustdecline their invitation to establisha completely new legal duty here.”

As to this last issue, however,the Court “encourage[d] ourGeneral Assembly, charged withmaking policy for our state, to con-sider this issue carefully. It may bethat, in this age of near-universaland compulsory education, whenour schools provide myriad coun-seling, physical therapy, recreation,and special needs assistance for ourchildren, they should be required to disclose vital information abouta student to the persons most inti-mately concerned – the student’sparents.”

Finally, the Court providedguidance as to how to handle ques-tions regarding whether a plaintiffhas complied with the requirementsof the Tort Claims Act, declaringthat the issues here present legaland factual questions that “are besthandled through carefully draftedjury instructions.” The Court then provided a “suggestion” as to how such a jury questioncould be worded.

Unanimous Supreme Courtdeclares statutory certificates of death that doctors, coronersand funeral directors file withcounty health departments are public records that countyhealth departments must provide public access tounder Indiana Access Public Records Act

The Indiana Access to PublicRecords Act (“APRA”) provides:“Any person may inspect and copythe public records of any publicagency during the regular businesshours of the agency.” Ind. Code §5-14-3-3(a). Because “each countyhealth department has an unam-biguous statutory obligation to collect and maintain death certifi-cates,” the Newspaper contendedthe death certificates were publicrecords and sought access to thecertificates under the APRA

A unanimous Supreme Courtin Evansville Courier & Press v.Vanderburgh Cnty. Health Dep’t, 17N.E.3d 922 (Ind. 2014) (Massa, J.),agreed, rejecting the health depart-ment’s argument that death certifi-cates are not “public records.” As to the department’s first argu-ment, the Supreme Court held “the General Assembly has drawn adistinction between a certificate ofdeath, which is intended to recordcause of death data for use byhealth officials, and a certificationof death registration, which isintended to authenticate the death

RECEN

T DECISIONS 10/14

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


Abigail T. RomFrost Brown Todd LLC


Maggie L. Smith Frost Brown Todd LLC


RG 03.15_RG 09.05 3/6/15 9:03 AM

for the purpose of property disposi-tion. The former is a public record,while the latter is confidential.”

The Court also rejected thehealth department’s reliance on a statute that applies to the StateDepartment of Health, not to localhealth departments. Noting “thisconclusion creates an apparentinconsistency,” the Court held it could not “say with certainty that this madness has no method… . Accordingly, we decline theDepartment’s invitation to ignorethe plain language of the statuteand second-guess the legislature’sjudgment.”

The Court concluded its opin-ion, noting, “[i]n our society, deathis an intimate and personal matter.We recognize that public disclosureof the details of a decedent’s deathmay cause pain to his family andfriends. We are also mindful of theimportance of open and transpar-ent government to the health of ourbody politic. Our General Assemblyhas considered these competinginterests and, insofar as we candetermine, concluded that the pub-lic interest outweighs the private.”

Liability under Crime VictimsRelief Act does not requirecriminal charge or conviction,but when plaintiff brings alternative common law andstatutory theories of relief, trial court can decline to awardexemplary damages and attor-ney fees under Crime VictimsRelief Act even if compensatorydamages are warranted

After purchasing a home, the buyers discovered water leaks,structural problems and grosslysubstandard electrical wiring to theswimming pool. They sued the sell-ers for fraudulently failing to dis-close those defects on the disclosureform and sought attorney fees and exemplary damages under

the Crime Victims Relief Act(“CRVA”). The trial court awardedcompensatory damages butdeclined to award exemplary dam-ages or attorney fees under theCRVA.

A unanimous Supreme Courtin Wysocki v. Johnson, 18 N.E.3d600 (Ind. 2014) (Rush, C.J.), reiter-ated, “An actual criminal convic-tion is not required for recoveryunder the CVRA; a claimant merelymust prove each element of theunderlying crime by a preponder-ance of the evidence. … And just asno conviction is required, nothingin the statute suggests that a crimi-nal charge is necessary, either.”

And while a finding of com-mon law fraud “would have beensufficient to support a CVRAaward,” such a finding does notrequire a CVRA award because a trial court has “discretion toimpose common-law liability for

fraud as an intentional tort, whiledeclining to impose quasi-criminalCVRA liability.”

Thus, even if a court awardscompensatory damages, it need notaward exemplary damages in excessof the actual loss. “Though theCVRA creates a civil remedy, its reliance on proof of a predicatecriminal offense makes it inherentlyquasi-criminal. So just as the‘heinousness’ of the defendant’sconduct may properly factor intothe factfinder’s decision whether to award exemplary damages underthe CVRA, the court’s inchoatesense of the defendants’ criminalculpability is a permissible factor inassessing whether the CVRA predi-cate offense has been proven.”

In addition, if a court doesimpose CVRA liability, an award of costs and reasonable attorney



RG 03.15_RG 09.05 3/6/15 9:03 AM

fees is mandatory by the terms ofthe statute, even though additionalexemplary damages remain discre-tionary. But if the plaintiff pleadsalternative common law and CVRAtheories of relief, the trial court candecline to award costs and attorneyfees under the CVRA even if com-pensatory damages are warranted.

In per curiam decision,Supreme Court orders Father to be given credit for child support payments made

On Dec. 31, 2011, the trialcourt found Father in arrears in theamount of $6,483. In January 2012,Mother was given $7,025.84 fromFather’s bank account. At a laterhearing on additional arrearage, thetrial court did not include a creditfor the $7,025.84 paid to Mother inJanuary 2012. In a per curiam deci-sion, the Supreme Court in In reD.M.Y., 17 N.E.3d 272 (Ind.2014),remanded the case to the trial court“for further proceedings, consistent

with this opinion, to recalculateFather’s arrearage to provide himcredit for the $7,025.84 payment.”

Supreme Court upholds StateEthics Commission ban of former employee from futureexecutive branch employment

Plaintiff was a director of adivision of the Indiana Departmentof Workforce Development, andwhen she was fired from her job,she kept several items of state prop-erty in her possession. She wascharged with theft, but thosecharges were dismissed. The Stateinitiated an ethics proceedingagainst her, determined her con-duct ran afoul of an administrativerule, and barred her from futureexecutive branch employment.

A unanimous Supreme Courtin Indiana State Ethics Comm’n v.Sanchez, 18 N.E.3d 988 (Ind. 2014)(Massa, J.), concluded that theadministrative proceeding did notamount to double jeopardy because

a jury in the criminal proceedingwas never impaneled and sworn.

The Court also rejected herargument that the criminal court’sdetermination that probable cause was lacking for the criminalsearch was res judicata upon theCommission. The Court conclud-ed, “Although the distinction is afine one, the question of whetherthere was probable cause to believeSanchez had State property in herpossession at the time the Stateapplied for its search warrant in March 2010 is not the same asthe question of whether there wasprobable cause to believe she madeunauthorized personal use of thatproperty at some time either duringor after her employment at DWD.”

The Court concluded by hold-ing the evidence supported theadministrative decision and thesanction imposed by theCommission.

SUPREME COURT TRANSFER DISPOSITIONS

The Indiana Supreme Courtgranted transfer in the followingcivil cases:

• Bd. of Comm’rs of Cnty. ofJefferson v. Teton Corp., 3 N.E.3d556 (Ind. Ct. App. 2014) (Mathias,J.), transfer granted Oct. 16 (dealingw/whether waiver of subrogationclause in contract extended to alllosses covered by county’s propertyinsurance or whether the claimedloss was damage to work or non-work property).

• Hoagland v. Franklin Twp.Cmty. Sch. Corp., 10 N.E.3d 1034(Ind. Ct. App. 2014) (Vaidik, J.)transfer granted Oct. 16 (dealingw/whether parents could seek monetary damages for violation of Education Clause in state constitution).

• In re L.H., 18 N.E.3d 1004,2014 WL 5420034 (Ind. 2014),transfer granted Oct. 22 (“The Courtof Appeals order is vacated, and the

RECENT DECISIONS 10/14 continued from page 35


• Will & Trust Contests

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RG 03.15_RG 09.05 3/6/15 9:03 AM

case is remanded to the Court ofAppeals for reconsideration of theorder dismissing the appeal in lightof Matter O.R., 16 N.E.3d 965 (Ind. 2014)”).

• In re M.R., 18 N.E.3d 1004,2014 WL 5420039 (Ind. 2014),transfer granted Oct. 22 (“The Courtof Appeals order is vacated, and thecase is remanded to the Court ofAppeals for reconsideration of theorder denying belated perfection of appeal in light of Matter O.R., 16 N.E.3d 965 (Ind. 2014)”).

SELECTED COURT OFAPPEALS DECISIONS

Court of Appeals finds, as amatter of first impression, thatIndiana will follow case-by-caseapproach to subrogation

Landlord brought subrogationaction against apartment tenant,alleging negligence and breach ofcontract. In the second appeal fromthe entry of summary judgment in favor of tenant, the Court ofAppeals in LBM Realty, LLC v.Mannia, 19 N.E.3d 379 (Ind. Ct.App. 2014) found as a matter offirst impression that whether a sub-rogation action could be broughtfor damage to a tenant’s leasedpremises was determined under a case-by-case approach.

The court explained that sub-rogation is an equitable remedy andcourts must weigh “the principlesof equity and good conscience” todetermine the remedy’s applicabili-ty in a given case. It noted thatIndiana’s case law involving land-lords’ insurers pursuing negligentresidential tenants through subro-gation is very limited.

Tenant urged the court toadopt the position in Sutton v.Jondahl, 532 P.2d 478 (Okla. Ct.App. 1975), in which the courtfound that “absent an expressagreement in the lease to the contrary, landlord and tenant are considered co-insureds under

a landlord’s fire-insurance policy;the insurer, therefore, has no rightof subrogation against the tenant torecover payments made under theinsurance policy due to fire loss,even if the fire is caused by the ten-ant’s negligence.” LBM Realty, LLC,19 N.E.3d at 388-89.

Landlord urged the court toformally adopt the case-by-caseapproach to subrogation, whichrequires the court to examine alease as a whole to determine theparties’ reasonable expectations “asto who should bear the risk of losswhen a tenant negligently damagesthe leased premises.” Id. at 391.

After weighing the possibleapproaches, the court concluded“that Indiana should hereby adoptthe largely case-by-case approach,finding that a tenant’s liability tothe landlord’s insurer for damage-causing negligence depends on thereasonable expectations of the par-ties to the lease as ascertained fromthe lease as a whole and any otheradmissible evidence.” Id. at 393-94.

Other decisions

• “Claybridge is not asserting aclaim to the title of the Real Estateunder an unrecorded deed orunrecorded mortgage ... . Rather,the January 2007 Order in favor ofClaybridge and against Deborah ispersonal as to Deborah. ... In short,as noted in Curry and Trotter, thelis pendens statute is intended toapply to in rem interests in realestate, and any interest Claybridgemay have had by virtue of theJanuary 2007 Order did not consti-tute such an interest. JPMorgan did not have actual notice of theJanuary 2007 Order as it was notentered in the Hamilton Countyjudgment docket, and the LisPendens Notice in this case wasineffective for the purpose of pro-viding notice to JPMorgan that its security in the Real Estate underthe JPMorgan Mortgage may havebeen subject to or impaired by the

January 2007 Order.” JPMorganChase Bank, N.A. v. ClaybridgeHomeowners Ass’n, Inc., 19 N.E.3d324 (Ind. Ct. App. 2014).

• “Thus, to hold that an insurerassumes a duty to advise by prepar-ing a valuation would create a dutyin nearly every instance, and oursupreme court has rejected such an expansive duty. Thus, as a mat-ter of law, an insurance agent doesnot assume a duty to advise merelythrough the preparation of a valua-tion” Cox v. Mayerstein-Burnell Co.,Inc., 19 N.E.3d 799 (Ind. Ct. App.2014).

• “Construing the designatedevidence and the facts in a lightmost favorable to J.H. and mindfulof St. Vincent’s denial of any inten-tional infliction of emotional dis-tress to J.H., we hold that there is a genuine issue of material factwhether St. Vincent’s conduct wasso outrageous that it satisfies thereckless element of the tort.” J.H. v. St. Vincent Hosp. & Health CareCtr., Inc., 19 N.E.3d 811 (Ind. Ct.App. 2014) (citing to Comment i and f of the Restatement (Second)of Torts §46).

• “The County Commissionersare not stepping into the shoes ofthe Aviation Board by way of sub-rogation; they are the executivebranch of the very political entitythat was ordered to pay the judg-ment against Dreyer. In fact,instead of being akin to a successorcorporation, Clark County is moreakin to a parent corporation, as theAviation Board is a subsidiary unitof the Clark County government,and the Aviation Board’s membersare appointed by the CountyCommissioners. Under these quite unique facts and circum-stances, we conclude that theCounty Commissioners, acting onbehalf of Clark County, can main-tain a [legal] malpractice claimagainst Vissing.” Vissing v. ClarkCnty. Bd. Of Aviation Comm’rs, 20N.E.3d 166 (Ind. Ct. App. 2014). �


RG 03.15_RG 09.05 3/6/15 9:03 AM

Membership in the ISBA now includes free access to CaseCheck+, Casemaker’s negative citator system that rivals Shepard’s® and KeyCite®. Previously available only by subscription, Casecheck+ allows you to quickly determine if your case is good law.

www.inbar.org

In November, the IndianaSupreme Court clarified theburden of proof for manufac-

turing methamphetamine convic-tions, while the Court of Appealsissued opinions addressing proba-tion revocations, warrantless intru-sions, sentencing enhancementsand improper use of perjured testimony at trial.

Discretion to order time servedfor community corrections violation – even if it is less thanoriginal suspended sentence

Trial judges have a variety ofsanctions available to impose whenrevoking probation or placement in community corrections. See Indiana Code §35-38-2-3(h)(judges may sentence probationviolators using any one of or any combination of enumeratedoptions) and Indiana Code §35-38-2.6-5 (options for violating terms of placement in community correc-tions). In State v. Rivera, 20 N.E.3d857 (Ind. Ct. App. 2014), the Courtof Appeals found no error in sen-tencing Anthony Rivera to timeserved as a consequence for com-mitting a technical violation of theterms and conditions of his directplacement in community correc-tions, even though it was less thanthe length of the sentence originallysuspended. On appeal, the Stateargued that the trial court illegallycommuted Rivera’s fixed sentence,which was set forth in his pleaagreement, and sought to haveRivera serve the remaining 161 days of his 545-day sentence at the Hendricks County Jail or inthe Department of Correction. Id.at 860. The appeals court disagreed,holding that the “time-served”sanction was not an illegal sentencemodification, but rather a conse-quence of Rivera violating his initialsentence. In the plea agreement, theparties implicitly contemplated thatthe trial court retained the power to

review whether Rivera violated theterms and conditions of his place-ment in community correctionsand “decide the consequences for such a violation.” Id. at 862.Moreover, following the rationaleset forth in Stephens v. State, 818N.E.2d 936 (Ind. 2004), the courtinterpreted the community correc-tions statutes to give judges flexibil-ity in sentencing when revokingplacement. Although other sanc-tions were available, “ultimately it is the trial court’s discretion as to what sanction to impose.” Riverav. State, 20 N.E.3d at 862 (quotingAbernathy v. State, 852 N.E.2d1016, 1022 (Ind. Ct. App. 2006)).

Unlawful police entry required suppression of evidence

In Mundy v. State, 21 N.E.3d114 (Ind. Ct. App. 2014), the Courtof Appeals held that detectives’intrusion onto private propertywhile looking for another persondespite clear signs of “no trespass-ing” was unreasonable and ranafoul of Article 1, Section 11 ofIndiana Constitution.

Detectives were looking for a man they thought might havebeen involved with a handguntheft. They went to an address theythought correct and got no answer,so decided to “try another home”located at the end of a long drive-way. Id. at 116. Police drove up along private drive, removed a cablestretched across the drive, drovepast a “No Trespassing” sign and a security camera. As they walkedtoward the home, they smelledmarijuana coming from the garageand from Phillip Mundy, who camefrom the garage. Mundy and thehomeowner told police they did notknow the man police were lookingfor, and the homeowner refused toconsent to a search. The two werethen handcuffed for “officer safety.”Id. Police entered the home without

a warrant and brought out twoother occupants, who also told the police that they were at thewrong address. Police thenobtained a search warrant for the premises and found 100 marijuana plants. Id. at 117.

Applying the balancing of fac-tors set forth in Litchfield v. State,824 N.E.2d 356 (Ind. 2005), thecourt held the degree of concern,suspicion or knowledge that policehad “was not terribly strong.” Id. at 118. The degree of intrusionwas the “most troubling” about the actions of the police, who disregarded clear signs thatstrangers were not welcome. Id.Distinguishing Baxter v. State, 891N.E.2d 110 (Ind. Ct. App. 2008),the court noted that the detectivesdid not simply walk to the frontdoor of the residence along pathsthat normal visitors would take. Id.at 119. Considering the extent oflaw enforcement needs, the policewere investigating serious crimes,but there were no circumstancessuch as hot pursuit that would jus-tify their intrusion. Considering thetotality of circumstances, the courtcould not say that the State met itsburden of establishing that theactions of the detectives in this casewere reasonable. Thus, the searchwarrant that was subsequentlyissued based on information gathered unconstitution-ally should not have beenissued pursuant to the“fruit of poisonous tree”doctrine. Id. at 120-21.

State’s knowing use of perjured testimonyviolated due process

In Smith v. State, 22N.E.3d 620 (Ind. Ct. App.2014), the State’s know-ing use of perjured testi-mony by Antonio Smith’sgirlfriend violated due

CRIMINAL JU

STICE N

OTES 11/14

Perjured testimony, unlawful police entry, other holdingsBy Jack Kenney

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



RG 03.15_RG 09.05 3/6/15 9:03 AM

process and required reversal of Smith’s conviction for class Cfelony burglary. Smith’s girlfriendpled guilty to burglarizing theDollar General store where sheworked, stating she acted alone.The State later charged Smith forthe same crime and offered the girl-friend immunity in exchange forher testimony. At trial, she saidSmith broke into the store whileshe served as an accomplice. Thistestimony was not merely inconsis-tent with her earlier factual basis; itconstituted perjury because it madeher two statements mutually exclu-sive, meaning one was “necessarilyfalse.” See Ind. Code §35-44-1-2-1(a)(2). The State’s use of the per-jured testimony was “knowing” –even though the State was not cer-tain how the girlfriend would testify– because the State was aware therewas a high probability she wouldperjure herself. See Ind. Code §35-41-2-2. The State knew the factual

basis of the girlfriend’s plea andgranted her immunity from prose-cution for perjury in exchange for her testimony at Smith’s trial. In its opening, the State even toldjurors they would hear two versionsof the burglary from the girlfriend,including a version that identifiedSmith as the principal. The Courtof Appeals concluded that admis-sion of the perjured testimony wasnot harmless because there was areasonable possibility that the testi-mony “might have contributed” to Smith’s conviction. See Chapmanv. California, 386 U.S. 18, 23(1967). Admittedly, if the jury con-victed Smith as an accomplice, theperjured testimony might not havecontributed to the verdict; however,the jury might also have convictedSmith as the principal, in whichcase the perjured testimony con-tributed directly to the verdict. Thisuncertainty about the basis of thejury’s finding means the girlfriend’s

perjured testimony was not harm-less beyond a reasonable doubt. See id. at 24. Mindful of numerousother instances of “prosecutorialmisbehavior” the court has recentlyreviewed, the Clerk was directed tosend a copy of the opinion to theSupreme Court DisciplinaryCommission.

Probation revocation based on uncertified, unreliable documents

Deriq Watters was on proba-tion for a dealing cocaine convic-tion out of Howard County. To support its claim that Wattershad a new conviction, the State tendered a plea agreement and an abstract of judgment purportingto show a robbery conviction inMarion County. Both documentswere uncertified. While a probationrevocation may rest on documentsthat are hearsay, the State mustestablish the documents’ reliability,especially when the documentscome from another county. See,e.g., Peterson v State, 909 N.E.2d494, 499 (Ind. Ct. App. 2009).Reliability can be established bycertification, supporting testimonyor live testimony of a person pre-sent at the signing of a person’s pleadeal. Reyes v. State, 868 N.E.2d 438,442 (Ind. 2007). In Watters v. State,22 N.E.3d 617 (Ind. Ct. App. 2014),the State did not establish the relia-bility of these documents through

CRIMINAL JUSTICE NOTES 11/14 continued from page 39


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these or any other means. Thus, thetrial court violated Watters’ right todue process by basing its decisionto revoke his probation on unreli-able documents purporting to showa new conviction from MarionCounty. See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973).

Insufficient evidence to supportresisting law enforcementenhancement

Enhancement of AntwonnaSmith’s resisting law enforcementconviction to a class D felony wasimproper because the State failed to prove that Smith “inflicted” or“caused” injury to a police officerwho scraped his knuckle and fin-gertip while forcing Smith to theground. Smith v. State, 21 N.E.3d121 (Ind. Ct. App. 2014). The offi-cer was injured when he fell to theground while forcing Smith to theground. Smith did not “inflict” the injury on the officer and the“cause” of the injury was the offi-cer’s action, not hers. In so holding,the court declined to follow Whaleyv. State, 843 N.E.2d 1 (Ind. Ct. App.2006), which reached the oppositeresult. Smith v. State, 21 N.E.3d at125-26.

Admission of withdrawn insanity defense did not constitute fundamental error

In Weedman v. State, 21 N.E.3d873 (Ind. Ct. App. 2014), an aggra-vated battery prosecution, the trialcourt erroneously admitted evi-dence that Derrick Weedman hadpursued and later withdrew aninsanity defense. Weedman assertedself-defense at trial, and insanitywas not at issue. Where, as here, the defendant withdraws his insani-ty defense before trial, the latitudein admitting other prior conductbecomes substantially limited. Id. at 884 (citing Cardine v. State, 475N.E.2d 696 (Ind. 1985)); see alsoTaylor v. State, 659 N.E.2d 535

(Ind. 1995) (defendant’s mentalcondition may be relevant, but theState may not misuse its access todefendant by attempting to provehis guilt through testimony of itsphysician).

In this case, the State wasimproperly attempting to proveWeedman’s guilt through the dis-cussion of his withdrawn insanitydefense and the doctors’ testimony.Weedman failed to object, and thecourt could not say that admissionof this evidence resulted in funda-mental error because evidence sup-porting the jury’s verdict was over-whelming. Id. at 885. However, thecourt recognized that a significantamount of evidence was improperlyadmitted at trial. “At some point,the cumulative effect of theimproper evidence would reach a tipping point and make a fair trial impossible … . However, given the avalanche of evidence

of Weedman’s excessive force, we conclude that the tipping pointwas not reached here.” Id. at 895.

Weight of ‘adulterated’methamphetamine is weight of final yield, not the intermediate mixture

In Buelna v. State, 20 N.E.3d137 (Ind. 2014), the IndianaSupreme Court clarified the evi-dence required to prove class Afelony manufacturing metham-phetamine, which requires posses-sion of at least three grams of “pureor adulterated” meth. Ind. Code§35-48-4-1.1 fails to define “adul-terated,” which makes the statuteambiguous. But in analogous situa-tions, the court has held that statu-tory references to adulterated drugsmeans the total weight of the deliv-ered product. Id. at 142-43. In thiscase, the State charged Joseph



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Applications available for Indiana Court of Appeals

Applications for an upcoming vacancy on the Court ofAppeals of Indiana are due by April 27. Chief Justice of Indiana Loretta H. Rush recently announced details

of the application process for the position that will be available at the end of the summer. The application is online atcourts.in.gov/jud-qual.

The position on the state’s second highest court is availablebecause Judge Ezra H. Friedlander announced he is steppingdown from the bench, effective Aug. 31. Chief Justice Rushthanked Judge Friedlander on behalf of the Supreme Court: “His stellar and dedicated longtime service on the Court ofAppeals is appreciated.”

Chief Justice Rush encourages attorneys and judges to look at the application, talk to their colleagues and consider whetherthey can give back to the state by serving. “Indiana has a wealth of qualified lawyers,” she said. “It is important that these thought-ful, service-oriented attorneys consider whether the next chapterin their career includes being a member of the appellate bench.”

A candidate must be an Indiana resident in the second appel-late district and must have been a member of the Indiana bar for at least 10 years or an Indiana judge for five years. The appli-cation requires providing pertinent background information,writing samples, references and educational transcripts.Submitted applications will be considered by the seven-memberIndiana Judicial Nominating Commission. The commissionincludes three lawyers elected by their peers and three citizen-members appointed by the governor. Chief Justice Rush chairsthe commission.

The commission will conduct initial public interviews ofqualified candidates May 20-22 in Indianapolis, followed by second interviews on June 10. After conducting the public inter-views and deliberating in an executive session, the commissionwill publicly vote to send the three most qualified names to Gov. Mike Pence. The governor will have 60 days to selectIndiana’s next Court of Appeals judge from the three names submitted by the commission.

The Court of Appeals is asked to consider about 4,000 caseseach year and conducts about 70 oral arguments per year. Formore information about the Court of Appeals of Indiana, visitcourts.in.gov/appeals, and for more information on the JudicialNominating Commission, visit courts.in.gov/jud-qual. Thoseinterested in applying may contact Counsel for the IndianaJudicial Nominating Commission Adrienne Meiring at 317/232-4706. �

Buelna with class A felony manu-facturing methamphetamine afterseizing 13 grams of a precursormixture that he was still cooking.Applying the rule of lenity, thecourt held that the weight of theadulterated methamphetamine isthe weight of the final, extractedproduct, not the weight of theintermediate mixture still under-going reaction. Id. at 144-46.

The weight of the unfinishedchemical mixture is probative ofthe three-gram weight enhance-ment only if the State establisheshow much final product a defen-dant’s particular manufacturingprocess would have yielded if he orshe had finished cooking the batch.While “sufficient evidence of finalyield need not come from an expertwitness” under Indiana EvidenceRule 702, “it may come from a skilled witness under IndianaEvidence Rule 701.” Id. at 146.Here, the State presented no evi-dence to establish what the finalyield would have been if Buelna hadfinished cooking the 13-gram liquidsample. However, because indepen-dent testimony established thatBuelna successfully manufacturedsix grams of methamphetamine,there was sufficient evidence tosupport his class A felony enhance-ment. Id. at 147-49. �

CRIMINAL JUSTICE NOTEScontinued from page 41


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FAIR COMMEN

T CLASSIC

Civil practiceBy ISBA Past President Rabb Emison

statement. I stand even when the rulings are killing me.I stand out of respect for the court, the Constitution,the Bill of Rights and my client.

3. Place your own calls. The testier the case, the more I want to make the call to the other lawyer.This is a chance to let that lawyer know I respect his/heropinion. I learn a lot. Pet peeve – lawyers who have asecretary get me on the line so I wait while he/she getson the line. This makes a tiny suggestion that my timeis less valuable. In the preferred style I got a call fromMatt Welsh when he was governor. He was on the linewhen I picked up the phone. He called to say I wouldnot be reappointed to a state commission. Not a criticalevent as state activities go. I was impressed! Since thatday I have always placed my calls and suggest you do,too. You are excused if you are busier than a governor.

I finished a case recently with a lawyer who nevercalled me. Not once. His secretary made all his calls. At the end she called to negotiate the settlement withme. What was he doing that was more important?

4. If you practice in Indianapolis, do not assumethat the lawyer in the boonies is dumber. I run into thisnow and then, and there is no basis (believe me) forthis presumption. It does not follow that a lawyer inChicago is smarter while in turn dumber than a lawyerin New York City. If you practice with this belief, thenkeep it to yourself. It will only do you harm.

Finally, at the end of a trial, if you lose, a bad tem-per does not change the result. If you win, the foremanof the jury has just handled the ax for you. �

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


Editor’s Note: The following column first appeared in Februaryof 1992. A treasured and longtime contributor to Res Gestae,Rabb Emison of Vincennes, Ind., passed away on Sept. 1, 2010.

Don’t show your anger at anyone until you’re closeenough to hit him with an ax. – A politician’s advice

Change in practice is constant. The limitation on solicitations is uncertain, emphasis on highincomes is prominent, and – it appears to me –

lawyers waste energy being rude to each other.Rudeness wastes time and client’s money as well.

We all know that our function is to do the best wecan for the client, subject to the Rules of ProfessionalConduct. Why is it that when we advance a client’scause, we think it is an advance to battle over egos?

As the stakes increase, we become polarized, frequently as plaintiff or defense counsel. I am adefense lawyer. Once, while representing a plaintiff, I was treated in a condescending, patronizing mannerby the defense counsel. Do I act that way? I hope not.That conduct energized my work to defeat my adver-sary. It was a good lesson. When I meet him again, I will remember. Civil behavior serves two ends. You keep your focus on the issue, and you keep youradversary’s temperature down.

Some simple rules1. Do not belittle the other lawyer, certainly not in

court. I have depositions on my desk in which lawyersoffer gratuitous insults to others. There they are, permanent records, pointless and irrelevant, uselessexcept to goad the other lawyer.

2. In court, stand up when you speak to the judge.In a trial, stand when you object. You can use the timegetting to your feet to formulate the objection. Seated,lounging like a couch potato, you lose emphasis in your

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Res Gestae - March 2015

Documents

Transcript of Res Gestae - March 2015