Res Gestae - June 2013

June 2013 Vol. 56, No. 10

JUDGE JAMES E. NOLAND:FAIRNESS WAS ‘ESSENTIAL’MUSCATATUCK:A PROVING GROUNDFOR CHARACTER

USHER CONSIDERED:IDENTITY THEFT &UNWELCOME ADVANCES

EDITORSusan J. [email protected]

GRAPHIC DESIGNERVincent [email protected]

ADVERTISINGKim Latimore

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Tina M. CooperProf. Joel M. Schumm

[email protected]

5 PRESIDENT’S PERSPECTIVEDaniel B. Vinovich, Highland, 2012-2013

26 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

32 RECENT DECISIONS 3/13D. Lucetta Pope and Ryan G. Milligan, South Bend

41 CRIMINAL JUSTICE NOTES 3/13Jack Kenney, Indianapolis

46 FAIR COMMENTDonna J. Bays and Jessica L. Mayflower, Indianapolis

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.

©2013 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.

26 UNWELCOME

The Journal of the Indiana State Bar Association

RES GESTÆJune 2013 � Vol. 56, No. 10

D E PA R T M E N T S18 PROVING GROUND

22 JUDGE NOLAND

RES GESTÆ • JUNE 2013 3

F E AT U R E S

8 COMMITTEE MEMBERS NEEDED FOR 2013-2014

12 ACHIEVEMENT AWARD NOMINATIONS SOUGHT

18 MUSCATATUCK: A PROVING GROUND FOR CHARACTERBy Bill Brooks, Indianapolis

22 JUDGE NOLAND: FAIRNESS WAS ‘ESSENTIAL’By Suzanne S. Bellamy, Indianapolis

17 NOMINATING REPORTS 20 HEALTH CARE REFORM 44 CLASSIFIEDS

Cover photo of the grand interior hallway of the Birch Bayh Federal Building and U.S. Courthouse in Indianapolis by Vincent Morretino

RG 06.13-p-3_RG 09.05 6/24/13 9:15 AM Page 1

“Small & Strong” was the motto forthis year’s ISBA Solo & Small FirmConference, held June 6-8 at the

French Lick Resort. While the event wasindeed strong, it certainly was not small – a record 330 folks were in attendance at thethree-day conference, now in its 12th year and recognized as one of the top solo & smallfirm conferences in the nation and a marquisevent here at home. Preeminent nationalspeakers provided a wealth of informationand practical advice on how to improve one’sproductivity, increase profitability and reducestress. CLE credits were abundant. This year’sparticipants were able to earn up to 15.5 credit hours via 44 sessions if they were soinclined.

One part of the conference focused onthe nuts & bolts of law practice management.This featured two nationally renowned leadersin the field of solo & small firm practice.Topics like insurance issues for a law practiceand reliable procedures for time management,billing and collecting were covered. Anotherpart was devoted to technology and its bestuse in the law office. These seminars dis-pensed skills needed to apply the latest tech-nology in order to serve clients while keepingoffice costs reasonable. Substantive law areaswere covered, including trial practice and evidence, estate planning and probate, ADR, and bankruptcy, business, criminal,elder and family law, to name a few.

Conference attendees were honored tohave two Indiana Supreme Court justices participate in the meeting – Chief Justice ofIndiana Brent E. Dickson and Justice LorettaH. Rush. Both not only provided insightfulremarks, but also attended many of the sessions and social events. Our State Bar is extremely fortunate to have such a goodand close relationship with our judiciary.

Networking is a major benefit of thismeeting. Solo & small firm lawyers know networking is essential to one’s practice. The conference planning committee did a fantastic job recognizing this by creatingopportunities like a “networking luncheon.”The conference also has a long-range develop-ment committee, which facilitated a law student outreach that hosted 25 students from Indiana law schools.

Another boon of this event is you get tocheck out a lot of new products available forlawyers. Approximately 25 vendors were on

hand to demonstrate, train and answer atten-dees’ questions about many new items toimprove your practice.

A mobile app was created for this year’s conference. Attendees were able to viewinstantly on their smartphones and tablets theschedule of events, information on speakersand exhibitors, and maps of the area andmeeting locations. Contact information of theattendees was also available in order to makenetworking easier, and Wi-Fi was free to all.New, too, was a “staff track” of programs for paralegals, legal assistants, secretaries and legal administrators.

Programs began as early as 7:15 a.m. andran as late as 9 p.m. so you could find timeduring the day to take breaks and enjoy whatthe southern Indiana venue had to offer,which was quite a bit. The French Lick Resortis one of my favorite places – a grand ole hotelwith plenty to do, including swimming, spatreatments, horseback riding, golf, gamblingand much more. Significant discounts wereafforded conference attendees for many ofthese activities. This year, lawyers and theirguests were also provided the opportunity toparticipate in planned events such as go-cartracing, a team bowl-a-thon, wine tasting anda walking tour of the historic West BadenHotel. Many attendees enjoyed wellness activ-ities such as a 5K fun run/walk, yoga class andeven water aerobics. Or if you are more of therelaxing type, sitting in a rocker on the porchenjoying some ice cream and listening to apiano is tough to beat. This event had it all!

Special thanks go out to the planningcommittee and, in particular, Marc Matheny,chair, for putting on a wonderful event!

I would encourage you to attend next year’s ISBASolo & Small FirmConference. Thedate and locationare already set –June 5-7, 2014 atthe French LickResort. Save thedate! �

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

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

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

OFFICERSPresident Daniel B. Vinovich, Highland

President-Elect James Dimos, Indianapolis

Vice President Jeff R. Hawkins, Sullivan

Secretary Todd J. Meyer, Lebanon

Treasurer Holly M. Harvey, Bloomington

Counsel Hon. Michael N. Pagano,to the President Crown Point

BOARD OF GOVERNORS1st District Shelice R. Tolbert, Crown Point

2nd District Todd A. Etzler, Valparaiso

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

4th District Hon. Thomas J. Felts, Fort Wayne

5th District Elizabeth B. Searle, Lafayette

6th District John A. Conlon, Noblesville

7th District Seth M. Lahn, Bloomington

8th District Angela L. Freel, Evansville

9th District J. Todd Spurgeon, New Albany

10th District Kimberly S. Dowling, Muncie

11th District Julia L. Orzeske, Indianapolis

11th District Chasity Q. Thompson,Indianapolis

11th District Clayton C. Miller, Indianapolis

Past President C. Erik Chickedantz, Fort Wayne

House of Delegates Mitchell R. Heppenheimer,South Bend, Chair

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

Young Lawyers Reynold T. “Ren” Berry,Section Indianapolis, Chair

STAFFExecutive Director

Thomas A. Pyrz • [email protected]

Administrative AssistantBarbara Whaley • [email protected]

Associate Executive DirectorSusan Jacobs • [email protected]

Administrative AssistantJulie 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 Section ServicesMaryann O. Williams • [email protected]

Administrative AssistantBarbara Mann • [email protected]

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

Administrative AssistantKim Latimore • [email protected]

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

Coordinator of CLE & Special ProjectsChristina L. Fisher • [email protected]

Director of Meetings & EventsAshley Higgins • [email protected]

Bookkeeper & Convention RegistrarSherry Allan • [email protected]

Membership Records CoordinatorKevin Mohl • [email protected]

ReceptionistChauncey Lipscomb • [email protected]

�RES GESTÆ • JUNE 2013 5

PRESIDENT’S PERSPECTIVEDaniel B. Vinovich

2012-2013

Record attendance & a grand time!

RG 06.13_RG 09.05 6/19/13 9:15 AM Page 5

30 inducted asBar FoundationFellows

The Fellows of the Indiana Bar Foundation inducted

30 members May 31 at the annualdinner meeting in Chicago.

The 2013 Fellows class includes14 attorneys from central Indiana,nine from northwest Indiana, fourfrom southern Indiana and threefrom Fort Wayne. Two of theFellows are members of judiciary.

“These attorneys have demon-strated excellent legal professional-ism and served the communitieswhere they practice and live,” said Charles R. Dunlap, a MasterFellow and executive director of the Indiana Bar Foundation. “Theywere nominated by another Fellowas worthy of this distinction amongtheir peers.”

Membership in the Fellows isawarded by recommendation andapproval by the Foundation inhonor of consistent demonstrationof professional distinction. Manyrecognized leaders of the IndianaState Bar are Fellows, including trialand appellate-level judges. It is anexclusive group of attorneys whomerit membership. Fewer than1,000 attorneys in Indiana havebeen accepted into the Fellows.Members join at various levels.

The Fellows began in 1979.Eligibility requirements includemembers in good standing who are recognized for professional,public and private careers thatdemonstrate outstanding legal ability and devotion to the welfareof their community, state andnation as well as to the advance-ment of the legal profession.

The Indiana Bar Foundation isdedicated to strengthening access tojustice and appreciation for the ruleof law in Indiana by providing law-related educational opportunities,assisting people who have difficulty

accessing the justice system, andimproving Indiana’s judicial systemand the legal profession.

Southern Indiana Fellows: David A. Lewis,

Jeffersonville; Christopher M.Ripley, Vincennes; and J. ToddSpurgeon, New Albany; MasterFellow: James F. Bohrer,Bloomington.

Central IndianaFellows: Scott L. Barnhart,

Andrew L. Campbell, Stephanie J.Hahn, Bart A. Karwath and ToddRelue, all from Indianapolis; LifeFellows: Jerald I. Ancel, Kara M.Kapke, Julia Spoor Gard, Charles P.Schmal and Hon. Martha BloodWentworth, all from Indianapolis;Master Fellows: Stephen E. Arthur,Indianapolis, and John S. CapperIV, Crawfordsville; Patron Fellow:Linda K. Meier, Greenwood; Life Patron Fellow: Steven Ancel(ret.), Indianapolis.

Fort WayneFellows: Bart L. Arnold and

Deborah M. Leonard; MasterFellow: Jon A. Bomberger.

Northwest IndianaFellows: Eric Mathisen,

Valparaiso, and Robert L. Clark,Valparaiso; Life Fellow: Robert D.Brown, Valparaiso; Master Fellows:Leane English Cerven, Munster;Richard McDevitt Jr., Merrillville;David R. Schneider, Crown Point; and Hon. Diane KavadiasSchneider, Crown Point; PatronFellows: Gerald M. Bishop,Merrillville, and Tony Walker,Gary. �

BEN

CH &

BAR N

EWS


Legal research breakthrough:more from Casemaker

The Indiana State Bar Association has renegotiated its contractwith our online legal research provider to dramatically improve

its value to our members. Not only has the basic Casemaker productsignificantly improved, but previously pay-as-you-go research toolsare now FREE to all members. These additional tools sold for up to$450 before May 15.

There are three research tools that now are free with your mem-bership. They are CaseCheck+, which allows you to determine thetreatment by later courts of any cited case; CiteCheck, which allowsyou to submit a legal brief to have your cites double-checked; andCasemaker Digest, which allows you to designate certain areas ofpractice and have appellate court decisions in these areas sent to youdaily.

Casemaker now has mobile apps for your Android, iPhone andiPad, and the entire Casemaker product is much more user friendly. If you have not tried Casemaker recently, you will be pleasantly surprised at how well it performs.

Casemaker is accessible via the State Bar’s website,www.inbar.org. Whether you are in the office, on the road or at home,you now have research from all 50 states at your fingertips. The new$450 savings is impressive, and the ease of use is exceptional.Membership in the ISBA is essential to your practice. �

RG 06.13_RG 09.05 6/19/13 9:15 AM Page 7

Jim Dimos, Indianapolis, ISBA president-elect, willsoon begin the process of

appointing members to our variouscommittees for the 2013-14 opera-tional year. The State Bar wants and needs you to participate in thecommittee work of your profes-sional association!

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

Standing committees are estab-lished by ISBA bylaws and are usu-ally concerned with matters ofongoing interest. The bylaws pro-vide that standing committees havea minimum number of members in staggered, three-year terms. If you are already on a standingcommittee, you need not reapplyunless your three-year term expires in 2013. If it does, you should reapply in order to remain on the committee.

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

Although it is impossible toappoint everyone to his or her firstchoice, every effort will be made to accommodate any member whoexpresses an interest in service. All members interested in servingon a committee should fill out theform on the adjacent page, indicat-ing first and second preference(s)only, and return the information to ISBA Executive Director TomPyrz by Aug. 16.

Standing CommitteesThe Affiliate Membership

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

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

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

The Attorney Fee DisputeResolution Committee is exploringthe need for and feasibility of astatewide attorney fee dispute reso-lution process, to complement butnot compete with existing localprograms.

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

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

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

Disproportionality in YouthServices sponsored the “Summit on Racial Disparities in the JuvenileJustice System: A StatewideDialogue” in the summer of 2009.The committee recommendedaction in this regard, including legislation, HEA 1193, whichbecame law effective July 1, 2010.In 2011, the committee produced a follow-up report of the IndianaJuvenile Mental Health Screening,Assessment & Treatment Projectand also proposed a rule – the Right to Counsel in Juvenile CourtProceedings – for adoption andrecommendation to the SupremeCourt. The rule passed the Houseof Delegates unanimously, and the Indiana Supreme CourtCommittee on Rules of Practice & Procedure is currently studyingthe proposal.

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

The Diversity Committeepromotes full and equal participa-tion in the ISBA, our professionand the justice system by all persons.

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

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

ATT

ENTION

Committee members needed for next operational year

8 RES GESTÆ • JUNE 2013

RG 06.13_RG 09.05 6/19/13 9:15 AM Page 8

The Committee onImprovements in the JudicialSystem promotes the election orappointment of properly qualifiedcandidates for judicial office. The committee also concerns itselfwith judicial salaries, pensions andtenure, and studies other facets of the judicial system in Indiana.

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

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

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

The Legal Education ConclaveCommittee brings together lawyers,judges and legal educators to dis-cuss the transition of law studentsto lawyers and how the bench, barand academia can assist with thatprocess and to discuss the changesand trends in legal education andtheir effect on the legal community.

The Legal Ethics Committeeshall foster and promulgate highethical standards in accordance


(Please print or type)

NAME

ADDRESS

CITY/STATE/ZIP

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

Standing Committees

____ Affiliate Membership

____ American Citizenship

____ Articles & Bylaws

____ Attorney Fee DisputeResolution

____ Aviation Law

____ Casemaker Improvement

____ Civil Rights of Children

____ Clients’ FinancialAssistance Fund

____ Diversity

____ Federal Judiciary

____ Honors

____ Improvements in theJudicial System

____ Latino Affairs

____ Law Practice Management

____ Lawyer Advertising Rules Review

____ Legal Education Conclave

____ Legal Ethics

____ Long Range Planning

____ Military & Veterans’ Affairs

____ Pro Bono

____ Public Relations

____ Service

____ State Legislation

____ Technology

____ Unauthorized Practice of Law

____ Wellness

____ Women in the Law

____ Written Publications

Special Committees

____ CLE

____ Courthouse Art

____ IndianaDocs

____ Leadership Development

Academy

____ Pension & Benefit Law

____ Social Security Disability

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

(continued on page 10)

RG 06.13_RG 09.05 6/19/13 9:15 AM Page 9

with the rules of the Supreme Courtof Indiana. The committee issueswritten opinions upon request.Opinions are formal or informal.Formal opinions shall be uponquestions of first impression inIndiana and other matters warrant-ing general circulation in the judg-ment of the committee. Informalopinions shall be upon questionspreviously resolved by formal opinions.

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

The Military & Veterans’Affairs Committee shall exploreand identify legal issues and needs

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

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

poor, and encourages members to undertake pro bono representa-tion.

The Public RelationsCommittee is responsible for theformulation of Association publicrelations policies. This committeerecommends ways to improve therelationship between the public andthe legal profession by way of pre-senting the work of the Associationand lawyers generally through theuse of the press, radio, televisionand other media.

The Service Committee, spearheaded by members of the inaugural class of the ISBALeadership Development Academy,will launch an annual day of ser-vice, promote service by state andlocal bar associations, present anaward at the ISBA Annual Meetingto recognize Indiana attorneys

COMMITTEES continued from page 9


RG 06.13_RG 09.05 6/19/13 9:15 AM Page 10

committed to serving beyond theirclients and much more.

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

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

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

The Wellness Committeewas established to promote healthand personal well-being amongjudges, lawyers, their staffs and law students by encouraging positive lifestyle changes throughincreased physical activity, stressreduction, healthier eating, tobaccocessation and the like, and to sup-port them as advocates to maketheir communities healthier placesto live and work.

The Women in the LawCommittee promotes the advance-ment of women in the legal profes-sion, law school and society at largeby providing educational programsto build successful practices, networking opportunities,

a forum for discussion and under-standing of legal issues affectingwomen, and opportunities forcommunity service.

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

Special CommitteesThe Continuing Legal

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

The Courthouse ArtCommittee is encouraging thedonation of original artwork ofIndiana’s 92 county courthouses,historic or current, to hang in theoffices of the ISBA. Thirty-fourdonations to date have been madeby individuals and local bar associa-tions.

The IndianaDocs Committeecreates and/or reviews practice-related forms for inclusion in the IndianaDocs Program.IndianaDocs is a library of legalforms related to the practice of lawin Indiana. This document assem-bly system allows members to save

time, effort and money in the pro-duction of repetitive documentsand forms.

The Leadership Develop-ment Academy Committee wasestablished to empower and devel-op lawyers to be informed, com-mitted and involved so that theymay fill significant leadership rolesin their local and state bar associa-tions, in Indiana communities andorganizations, and to serve as rolemodels in matters of ethics andprofessionalism.

The Pension & Benefit LawCommittee has been established toassess interest in creating a Pension& Benefit Law Section.

The Social Security DisabilityLaw Committee has been estab-lished to assess interest in creating a Social Security Disability LawSection. �


E. Van Olson • [email protected] • www.vanolsonlaw.com8500 Keystone Crossing, Suite 540, Indianapolis, IN 46240

Office direct: 317.202.0443 • Mobile: 317.730.1116

Former large firm partner with 25-year ERISA practice, including extensiveemployee stock ownership plan “ESOP” experience, now focuses on the tax-effective transfer of business ownership interests through ESOPs. Will serve as counsel or co-counsel on all ESOP-related matters.

Will also serve as co-counsel on ERISA fiduciary, tax-qualified retirement and executive compensation plan matters.

Va n O l s o n L a w F i r m, L L C- - - - - - - - - - - - - - - - - - - - - -

Focused on Employee Stock Ownership Plans

Correction

In the May 2013 article,“Comment Sought on ProposedRules,” at p. 8, one of the proposedrule changes was described inerror. The correct description ofthe proposed rule change is as fol-lows: “Acknowledgment of OralArguments – reduces the numberof copies that parties must file ofthe Acknowledgment of OralArgument.” We regret the error. �

RG 06.13_RG 09.05 6/19/13 10:11 AM Page 11

Nominations due Aug. 16

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

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

CIVILITY AWARDSSponsored by the Litigation Section

The ISBA Litigation Section’sCivility Awards recognize an attor-ney and judge for outstanding civil-ity and professionalism in theirdealings with fellow judges, attor-neys, parties, witnesses and thepublic. In addition, the DefenseTrial Counsel of Indiana selects aplaintiff’s attorney, and the IndianaTrial Lawyers Association selects a defense attorney.

Send your nominations to:

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

For more information, contactMaryann at [email protected].

GALE M. PHELPS AWARDSponsored by the Family & Juvenile Law Section

The Gale M. Phelps Award is named in memory of Gale M.Phelps, a former chair of the ISBAFamily & Juvenile Law Section andone of the most active members ofthe section, who passed away in2003. Factors considered in theselection of the recipient reflectGale’s contributions to the familylaw legal community and include:

• Exceptional service to theprofession: unsolicited mentoringto new attorneys, reaching out toother lawyers, and working withattorneys on an individualizedbasis;

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

• Raising the level of profes-sionalism and civility in domesticrelations matters: going beyond theclient’s basic needs, maintainingrespect for the court system and its participants; and

• High moral character and ethical standards




RABB EMISON AWARDSSponsored by the Diversity Committee

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


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

For more information, contactChristina at [email protected].

GP HALL OF FAMESponsored by the General Practice,Solo & Small Firm Section

Nominees must practice assolo practitioners or in a small firm,and be members of the IndianaState Bar Association. The selectioncriteria emphasize contributions to

clients, the profession and the community. There is no longevityrequirement. County bar associa-tions throughout the state will becontacted and encouraged to nomi-nate outstanding solo and smallfirm lawyers from their individualcounties.

Those making nominations are encouraged to submit up to fiveletters in support of the nomina-tion, but no more than five letterswill be accepted. The intent is toavoid turning the selection into aletter-writing or popularity contest.




OUTSTANDING JUDGE AWARD

Sponsored by the Young Lawyers Section

The ISBA Young LawyersSection is accepting nominationsfor the 2013 Outstanding JudgeAward. The criteria for the awardare as follows:

1. The nominee provides substantial education or mentoringto young lawyers.

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

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

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

Send your nomination to:

Carissa LongIndiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

ATT

ENTION

Achievement award nominations sought


RG 06.13_RG 09.05 6/19/13 9:15 AM Page 12

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

For more information, contactCarissa at [email protected].

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

State Bar members are invitedto nominate an attorney for theWomen in the Law RecognitionAward, which is presented to anindividual who has assisted in theadvancement of women in the legalprofession, served as a role modelor mentor or has influencedwomen to pursue a career in law or for contributions to the legalprofession as a whole or to a partic-ular area of practice. The nomineemust be an attorney licensed in thestate.

Those making nominations areencouraged to submit letters ofsupport.


Cheri Harris Indiana State Bar AssociationOne Indiana Square, Suite 530Indianapolis, IN 46204

For more information, contactCheri at [email protected].

TRAILBLAZER/ABRIENDOCAMINOS AWARDSponsored by the Latino AffairsCommittee

The Latino AffairsCommittee’s Trailblazer/AbriendoCaminos Award recognizes the out-standing achievements, commit-ment and leadership of a lawyerthat has paved the way for theadvancement of other Latino attor-neys and/or the Latino community.This award recipient will personifyexcellence in the profession, espe-

cially by his/her steadfast commit-ment, vision, courage and tenacity,which have resulted in substantialand lasting contributions to theLatino legal profession as well asthe broader Latino community.The nominee must be a currentISBA member.


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

For more information, contactChristina at [email protected].

LIBERTY BELL AWARDSponsored by the Young Lawyers Section

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

service to their communities in anyof the following areas:

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

• encouraging greater respect for the law and the courts;

• stimulating a deeper sense ofresponsibility so that citizens recog-nize their duties as well as theirrights;

• contributing to the effectivefunctioning of our institutions of government;

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

This is your opportunity to focus on a local communityleader who may not receive publicrecognition of his or her accom-plishments. To nominate an



RG 06.13_RG 09.05 6/19/13 9:15 AM Page 13

individual, please submit the nomination form and explain why you feel this person deservesthe Liberty Bell Award.




OUTSTANDING YOUNGLAWYER AWARDSponsored by the Young Lawyers Section

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

To nominate a young lawyer,complete the nomination form andinclude a letter explaining why youbelieve your nominee should beconsidered for the award. An attor-ney qualifies as a young lawyer if he or she is under 36 years of age orhas less than six years of legal expe-rience. If you prefer that your nom-ination remain anonymous, please

advise, and we will honor yourrequest.




AFFILIATE MEMBER AWARDSponsored by the AffiliateMembership Committee

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

The selection committee mayalso consider:

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

AWARDS continued from page 13


Indiana’s Premier Special Needs TrustTrust IEstablished in 1988, Trust I helps families provide for the financial future of their loved ones without affecting eligibility for government benefits such as SSI, SSDI and Medicaid.

Trust II Established in 1995, Trust II allows people with disabilities to fund their own trust, allowing them to maintain eligibility for government benefits.

Over the past 25 years, nearly 5,000 people have enrolled in Trusts I and II. Trust I investments total over $30.5 million, and Trust II investments total over $14.5 million.

Whether you are working with clients to develop an estate plan or you represent a client with a disability, The Arc Master Trust is here to help.

www.thearctrust.org 800-382-9100

law librarians or court administra-tors;

• commitment to the IndianaState Bar Association; and

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


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

For more information, contactSusan at [email protected].

DAVID HAMACHER PUBLICSERVICE AWARDSponsored by the Appellate Practice Section

The ISBA Appellate PracticeSection is soliciting nominationsfor the David Hamacher PublicService Award for 2013. Any lawyeror nonlawyer may be nominated.The criteria for this award are asfollows: high moral character andethical standards; service to thecommunity; peacemaking qualities;person not necessarily a lawyer;award not gender specific.

Send a written statementregarding why the nominee shouldbe selected to:



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

The Committee on Civil Rightsof Children annually honors anindividual who best exemplifiesJudge Taliaferro’s courageous


RG 06.13_RG 09.05 6/19/13 9:15 AM Page 14

All-new upgrade package of premium tools!

A negative citator system that rivals the best. You’ll know instantly if the case you are researching is still good law.

Keep up with the latest cases in your practice area. Within 12-24 hours of publication, Casemaker editors deliver daily summaries of State and Federal appellate cases. Get just the information you need, when you need it.

Get the latest information on the citations in your briefs. Upload your brief to Casemaker and you will receive up-to-the-minute information on the current validity of each case.

1

2

3

CaseCheck + - Citations

CasemakerDigest - Stay Current

CiteCheck - Brief Analyzer

The New

Casemaker, provided free to you by theIndiana State Bar Association, will save you hundreds of dollars every month on legal research.

And now, the New Casemaker has been updated to give you state-of-the-art search capabilities... and much more!

• Fast Searching• Custom Folders• Search History• Client Settings• Detailed Reports

To learn more, visit www.inbar.org, or give Casemaker a call at 1.877.659.0801.

Connect with Casemaker!

Premium tools now available at no charge for ISBA members

leadership in addressing the unmetlegal needs of children and in rais-ing the public’s awareness of theseneeds. Nominations for this awardmay be for an individual who is living or deceased.


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

For more information, contactPaje at [email protected].

COMMUNITY SERVICE AWARDSponsored by the Service Committee

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

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

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

3. promoting communityinvolvement; and

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


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

For more information, contactCatheryne at [email protected]. �

AWARDScontinued from page 14


©2013 The National Bank of Indianapolis www.nbofi.com Member FDIC

261-9000

THE ART OF PERSONAL SERVICE

2013 RIA Federal Tax Handbook available

The 2013 Thomson Reuters edition of the RIA Federal Tax Handbook(brought to you by the ISBA Taxation Section) is available in print. It is

designed to answer tax questions and resolve tax problems that arise in everydaybusiness and personal transactions. The handbook helps in preparing federalincome tax returns and provides specific guidance to tax consequences of trans-actions occurring in 2013.

The Handbook reflects all federal tax legislation passed by Congress to date. It also reflects other key developments (such as new regulations, rulings and revenue procedures) affecting the 2012 return and the 2013 tax year.

See www.inbar.org for an order form or call 800/266-2581. �

RG 06.13_RG 09.05 6/24/13 9:21 AM Page 16

Business supplies for a productive, efficient office

The State Bar is proud toannounce that its newest

member benefit is Office360, one of the largest, fastest-growing, inde-pendently owned office productssuppliers in the country, recognizedlast year by TriMega PurchasingAssociation as #1. Not only doesOffice360 provide competitive pricing on top supplies, but it alsooffers free, next-day delivery withno minimum order requirement –anywhere in the continental UnitedStates!

“We find that as a local compa-ny we can really improve the levelof service and also be the low-costprovider compared to the big three– Office Depot, OfficeMax andStaples – who have most of thebusiness out there,” says SteveNahmias, who owns and managesOffice360 along with brothers Scottand Lenny.

Many central Indiana law firms already enjoy Office360’shigh-quality service and appreciatethe personal touch Office360brings. Service such as delivery ofcopy paper to specific office loca-tions, customized website orderingsystems, financial reporting andmore is available to better manage a firm’s overall supply spend.Products offered include traditionaloffice supplies, ink & toner, clean-ing & breakroom supplies, andoffice furniture.

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

Visit www.office3sixty.com/offweb/login.aspx (user ID: ISBA;password: REG22555) and startsaving today! �


Report of the Nominating Committee

of the Indiana State Bar Association

May 9, 2013

The Nominating Committee of the Indiana State Bar Association met inIndianapolis, Ind., in May and determined to submit the following candi-

dates for election to the respective Association offices at the Annual Meeting of the Association Assembly to be held in French Lick, Ind., on Oct. 18, 2013.

For Vice President ..................................................... Carol M. Adinamis, Carmel

For the Board of Governors (term Oct. 18, 2013 through October 2015)

District 1 ....…………………………………………... Scott E. Yahne, Munster

District 4 ....…………………...………………… Martin E. Seifert, Fort Wayne

District 5 ....………………………...………….. Candace D. Armstrong, Brook

District 10 ....………………….…………….….. Wilford A. Hahn, Huntington

District 11 ....……………………………………... Tonya J. Bond, Indianapolis

District 11 ...………………..………...…..….... Terry W. Tolliver, Indianapolis

Respectfully submitted by Sherrill Wm. Colvin, Fort Wayne, chair; Hon. Michael N. Pagano, Crown Point; Thomas W. Earhart, Warsaw; R.William Jonas Jr., South Bend; Karen R. Orr, Lafayette; Seamus P. Boyce,Noblesville; Holly M. Harvey, Bloomington; James P. Casey, Evansville; Mary E. Fondrisi, Jeffersonville; Amy K. Noe, Richmond; and Andrielle M.Metzel, Indianapolis. �

Report of the Nominating Committeeof the House of Delegates

of the Indiana State Bar AssociationMay 14, 2013

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

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

Andrielle M. Metzel, Indianapolis

Such candidate, if properly elected as Chair-Elect at the 2013 AnnualHouse of Delegates meeting, will serve one year as a member of the Board ofGovernors in the capacity of Chair-Elect of the House, and will then assumethe office of Chair at the close of the 2014 Annual Meeting, serving until theclose of the 2015 Annual Meeting.

Respectfully submitted by Carol M. Adinamis, Carmel, chair; Holly M.Harvey, Bloomington; Hon. Heather A. Welch, Indianapolis; Todd J. Meyer,Lebanon; and Andrew W. Hull, Indianapolis. �

RG 06.13_RG 09.05 6/19/13 9:15 AM Page 17

Amid the gently rolling hills of southeasternIndiana, the Muscatatuck

Urban Training Center offers very serious training opportunitiesfor military and first-responders.

But for visiting lawyers who are part of the second class of theIndiana State Bar Association’sLeadership Development Academy,Muscatatuck represents a DisneyWorld of disaster scenarios.Forming the backdrop for theclass’s fourth of five gatheringswere a bombed-out parking garage,a rubbled office building, a floodedtown, an eerily abandoned hospital,a train wreck and even an Afghanvillage complete with camel, alpaca

sheep and goats.

And a shantytownwhere paintballs were

fired among the lawyers in mockanger.

But there was a serious elementto the visit to Muscatatuck as well,voiced by people in uniform suchas Brig. Gen. Brian Copes, Chief of the Joint Staff, Indiana NationalGuard. The training center, whichis operated by the Indiana NationalGuard, offers full-immersion orga-nizational experiences in disasterrelief and urban warfare training.

Copes talked about the richtradition of the Indiana NationalGuard as well as current challenges.“We manage ourselves to makesure we’re doing the right things forthe right reasons,” Copes told theyoung lawyers as he outlined theNational Guard’s complex organi-zational chart, which was notunlike that of major corporations.

He noted that the IndianaNational Guard was the sixthlargest among the 54 such stateorganizations – and by far thelargest in terms of relation to thestate’s population. “It takes a lot of work to maintain that strength,”he said.

The sojourn to the 1,000-acresite near Butlerville also included a briefing on the Hoosier YouthChalleNGe Academy, operated at Knightstown by the IndianaNational Guard. The facility servesat-risk youth, placing them in aquasi-military environment, but ona completely voluntary basis. Theyoung people spend 5-1/2 monthsin residence, then 12 months backin their own environment under amentor’s guidance. “We’re trying to get them to grow both physicallyand mentally,” said Col. Wayne Hill(ret.), director. Visiting with four of those young people, both at thesession and then during a lunch,provided real evidence that theacademy can indeed produceresults.

That lunch wasn’t the onlyeventful meal. The night before,LDA classmates experienced anauthentic Afghan dinner, completewith authentic Afghans, ex-patriotswho converge upon Muscatatuck toserve as role players for the trainingof military and civilians headed to Afghanistan. Before they lefttheir homeland, the Afghans’ jobdescriptions had included mayor,provincial official, industrial engi-neer and teacher. Several of theAfghans demonstrated their tradi-tional dances, pulling the Americanvisitors (which, in addition to thelawyers, included people who hadcompleted training at Muscatatuck)on to the dance floor. Meanwhile,the diners sat on the floor, eatingwith their fingers a feast of lambkebab and dishes such as QabliPulao, composed of basmati rice,carrots and raisins.

ASS

OCIATION N

EWS

Muscatatuck: a proving ground for characterBy Bill Brooks


CLARKE MERCERFORENSIC LABORATORY, LTD.

772 S. 850 E.GREENFIELD, IN 46140

• Signature/Handwriting Verification

• Document Dating/Sourcing

• Comparative Paper/Ink Analysis

• Questioned Document Photography

• Typewriter/Fax/Photocopier Identification

• Torn Edge/Paper Edge Striation Matching

• Altered/Obliterated Document Interpretation/Restoration

• Electrostatic Development of Indented Writings and Markings

• Authenticity Assessment of Bulk Records (Medical-Accounting-Other)

• Quality Court Presentations with Demonstrative Enlargements___________________________________________________

CLARKE MERCER See classifieds

(317) 467-9900at page 44.

DIPLOMATE AMERICAN BOARD OF FORENSIC DOCUMENT EXAMINERS

CLARKE MERCER(317) 696-2848

[email protected]

DIPLOMATE AMERICAN BOARD OFSee classifieds at page XX

Media consultantand freelance writer

Indianapolis, Ind.

See classifieds at page 45

RG 06.13_RG 09.05 6/19/13 9:15 AM Page 18

Creating the Muscatatuck facil-ity has been a boon for the IndianaNational Guard in many ways –including drawing customers fromall across the nation. U.S. StateDepartment personnel train here,as do all members of the CivilianExpeditionary Force headed toAfghanistan – about 500 a week.Police and fire department person-nel, as well, visit for realistic train-ing exercises.

The experience is indeedimmersive, with the scenario mim-icking a “failed state.” The environ-ment comes complete with explod-ing dumpsters, if needed, as well as sounds and smells piped in toenhance the realism. The idea is toget people ready for the real thing –in this case, war-torn Afghanistan.

The lessons in leadership werepalpable. “Everything the Generalsaid you can apply to yourself and

your practice of law,” said SteveSatterlee, the center’s executive officer. “Professionalism, training,leadership, citizenship, stewardship– you heard that all in one person.”

Lt. Col. Daniel Kozlowski of the Judge Advocate General’sCorps is the senior legal advisor forMuscatatuck as well as for CampAtterbury, another National Guardfacility. He outlined his early careeras a civilian litigator while offeringhis own advice. “You learn morefrom your failures than your suc-cesses,” he said. “For the litigatorsamong you, that’s not a shockinglesson.”

Kozlowski, who stated the JAGCorps offered more opportunitiesfor leadership than he found in thecivilian world, said his General’s

advice is that “the scrimmage needsto be as hard as the game.” He saidsimulations must be complex andparticipants must embrace failure.“Otherwise, you’re not setting yourstandards high enough for the realfight.”

Furthermore, Kozlowski said,“Your failure is going to show yourcharacter.” Leaders must not passthe blame to those under them.“When trouble comes, stand upand take full responsibility.”

Quoting from his own “JAGRules of Deployment,” Kozlowskiadded, “You’ve got to maintain ahigher ethical standard than any-body else – because that’s the busi-ness we’re in.” �


ISBA Leadership Development Academy II reports to duty at the Muscatatuck Urban Training Center in Butlerville, Ind., to learn the value of “setting your standards high enough for the real fight.”

Phot

o by

Vin

cent

Mor

retin

o

RG 06.13_RG 09.05 6/19/13 11:34 AM Page 19

Health care reform willchange the way smallemployers and their

employees consume health insur-ance and other employee benefits.New options will be available, anddetermining which options are bestfor an employer to provide from acost and tax perspective as well asguiding employees to find the rightprotection at the best price is at theheart of the new benefits paradigm.

With Jan. 1, 2014 right aroundthe corner as the date for fullimplementation of the major provi-sions of the Patient Protection &Affordable Care Act (also known as PPACA or Health Care Reform),small businesses need to under-stand the mandates and all of the options available to them. The online health insurance siteehealthinsurance.com interviewedmore than 400 small businesses andlearned that most are not ready to

navigate successfully nor complywith the new law. 70 percent eitherincorrectly believe or are not sure if they would be required to pay atax or a penalty for not providinghealth insurance, and 78 percentsaid they were not familiar withhealth insurance exchanges andhow they could impact their business.

So what is a small business to do?

First, a couple of PPACA facts:Businesses with less than 50 full-time equivalents (FTEs) – andmake sure you calculate the totalcorrectly including part-time, sea-sonal employees etc. – are not man-dated to provide benefits (neverhave been) and, more importantly,will not be assessed a tax or penalty for not providing benefits.However, small businesses that do provide health insurance must

comply with the other mandates ofPPACA, such as providing essentialhealth benefits, preventative care,no pre-existing conditions, etc.

But the bigger question forsmall business is: What is the bestpath for the future of providingbenefits? That is a seriously loadedquestion! It all depends on yourbusiness philosophy and goals as they relate to compensation,employer-provided benefits, totalrewards, how important providingbenefits is in your market, and whatare the demands of your workforce.

New resources available due to PPACA

Subsidies available through the Health Insurance Exchanges are substantive. And for the firsttime in benefit history, employees, even high-earning employees, can receive premium subsidies andcost-sharing assistance to help themafford their healthcare costs. Thechart on page 21 illustrates thetypes of subsidies and cost-sharingbenefits available to employees.

This chart assumes that theemployees are not offered mini-mum value coverage from theiremployer at a reasonable cost. Sothis begs the question, does it makesense to cancel your group healthplan if you are one of the approxi-mately 50 percent of small busi-nesses that still provides healthinsurance and instead decide to letyour employees get their insurance(and possible subsidies) on thepublic exchange? Or should youmaintain the status quo?

This depends on several fac-tors. First, most businesses willwant to do the new math to deter-mine, based on your group’s demo-graphic makeup, what works bestfinancially for them and their team.This will require the use of a newcalculator tool called an ACAimpact analysis tool. Only by usinga comprehensive, fully integrated

ATT

ENTION

Navigating health care reform for the small employerBy Michael Haffey


RG 06.13_RG 09.05 6/19/13 9:15 AM Page 20

calculator can a business determinethe best financial path now and intothe future for each employee andthe business as a whole. Using acomprehensive calculator will allowemployers to perform “what if” scenarios and identify alternativestrategies to their employee totalrewards program. The second keyfactor is your business’ approachtoward compensation, benefits andtotal rewards. What are your busi-ness’ goals, what does your marketcall for, and how can you continueto attract and retain the bestemployees with the best totalrewards package? Isn’t that why a business offers employer-provided benefits to begin with? Interestingly, the ehealth-insurance.com survey also showedthat 68 percent of small businessessaid they had no plans to drop theirinsurance plans.

Change brings opportunity

Small businesses have a uniqueopportunity to take advantage ofthe new employee benefits/com-pensation paradigm and can suc-cessfully navigate this new world.This can be accomplished by utiliz-ing the “best of the breed” technol-

ogy with all the supporting prod-ucts and services, employer deci-sion support tools, calculators and impact analysis predictors.

Employee benefits advisors andtheir business partners need to pro-vide employees with new tools toassist them in consuming the rightinsurance products. They need toprovide a dashboard that helps theindividual manage their benefits,understand their coverages, andaccess health care advocates to findlow-cost, high-outcome providersin addition to wellness information.From this dashboard, employeeswill also be able to easily trackdeductibles, out-of-pocket maxi-mums, and HSA and FSA balanceinformation; pay providers; andaccess their electronic medicalrecords.

From a coverage standpoint,the small employer’s coverageoptions have increased as well. The calculator will help determinewhich coverage options are best.Medicaid, Medicare and MedicareSupplements, Public Exchanges(Marketplaces) with and withoutsubsidy money, Private Exchanges(Comprehensive Marketplaces)with a defined contribution

approach to funding the plans aswell as traditional health offeringswill all be in the mix.

Partnering with experiencedand trusted advisors with theappropriate tools is the key toaccomplishing your business goalsin the new employee benefitsworld. �Michael Haffey, CLU, [email protected], is an innovator andthought leader in employee benefits.


Income Dependents % of Poverty Line

Total Premium

% of Costs Covered

Max Out-of- Pocket Cost

Premium Subsidy

% of Prem Subsidized

$30,000

1 276% $ 4,500 70% $2,975 $ 1,871 41.6% 2 204% $12,130 73% $5,950 $10,212 84.2% 3 162% $12,130 87% $3,927 $10,778 88.9% 4 134% * $12,130 94% $3,927 $11,212 92.4% 5 114% * $12,130 94% $3,927 $11,530 95.1%

$50,000

1 459% $ 4,500 70% $5,950 $0 0.0% 2 340% $12,130 70% $7,854 $7,380 60.8% 3 270% $12,130 70% $5,950 $7,835 64.6% 4 224% $12,130 73% $5,950 $8,583 70.8% 5 191% $12,130 87% $3,927 $9,187 75.7%

$70,000

1 459% $ 4,500 70% $5,950 $0 0.0% 2 475% $12,130 70% $11,900 $0 0.0% 3 378% $12,130 70% $7,854 $5,480 45.2% 4 313% $12,130 70% $7,854 $6,650 54.8% 5 268% $12,130 70% $5,950 $6,157 50.8%

* May qualify for Medicaid depending on the state of the employee’s residence. Note: Final premium rates are not yet available. The rates used arebased on preliminary information and likely to be updated and adjusted based on family composition.

Child Support SoftwareIndiana

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

Professional Software CorporationFast, accurate supportcalculations since 1989

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

www.supportmastersoftware.com

RG 06.13_RG 09.05 6/19/13 9:15 AM Page 21

Born in LaGrange, Mo., on April 22, 1920, JamesEllsworth Noland came into

the world as a member of a large,politically active, Democratic fami-ly. When the farm depression hit in the 1920s, the Noland family,including James and his two sisters,moved to Roachdale, Ind., in 1923,where his father became the onlydentist in town. Three years later,in 1926, the family moved again toSpencer, Ind., where they resideduntil 1934. Judge Noland grew upthere during the depths of the GreatDepression, delivering newspapersand remembering for years there-after the difficulty he encounteredin collecting the 12-cent fees frompeople who could not afford to payeven that meager amount.

In 1934, the family packed up again and this time moved toBloomington, Ind., where JudgeNoland began high school. Hisleadership skills were recognizedwhen he was elected president ofhis senior class at BloomingtonHigh School and later president of the freshman honorary society,Phi Beta Sigma, at Indiana Univer-sity, which he entered in 1938. In 1941, he began law school, butthe Japanese attack on Pearl Harboron Dec. 7, 1941, interrupted hisschooling. Judge Noland learned ofa reserve officers’ training programoffered by the Harvard GraduateBusiness School where, upon com-pletion of an accelerated master’s

program in businessadministration, thegraduates would quali-fy to become officers.Judge Noland wasaccepted at Harvardand completed thecourse as part of thelast class to receive a full master’s degreebefore entering theservice in World War II. After gradua-

tion in May 1943 and OfficerCandidate School, he was assignedto the New Orleans Port ofEmbarkation where he stayed forabout two years, attaining the rankof captain.

Before leaving the Army in thespring of 1946, Judge Noland begana campaign for the Democraticnomination to Congress from hishome district in Indiana. He nar-rowly won the primary, but wasdefeated in the general election by the incumbent congressman.Returning to law school inBloomington, the judge receivedhis J.D. in August 1948 and onceagain set out to win the Democraticprimary for Congress. This time hewas successful in both the primaryand general election, becoming oneof the youngest members of theU.S. House of Representatives.Sworn into the Indiana bar on Dec. 7, 1948, he went, as he put it,“from law school direct to theUnited States Congress.”1

Two years later, in 1950, JudgeNoland’s bid for re-election to asecond term in Congress provedunsuccessful. He and his family,now including a wife and threesmall children, made the decisionto move to Indianapolis, where heentered the practice of law whileremaining active in Democraticpolitics and serving in various localand state government positions. In1966, Indiana’s two U.S. senators,Birch E. Bayh Jr. and R. VanceHartke, jointly recommended himto fill a newly authorized fourthjudgeship created by legislation toexpand the United States DistrictCourt for the Southern District of Indiana. President Lyndon B.Johnson nominated James Nolandto the federal bench on Oct. 6,1966. He was confirmed by theSenate later that same month.

In one of Judge Noland’s earlysignificant cases, Banks v. MuncieCommunity Schools in 1969, an

injunction was sought, seeking toprohibit several actions thought tobe inimical to the civil rights of stu-dents: the construction of a thirdhigh school in Muncie, whichallegedly would have disrupted theracial balance in the two existingschools; the busing of elementaryschool students to schools not near-est their homes; and the use ofConfederate symbols or other“racially or politically inflammable”symbols at Muncie Southside HighSchool. In denying the injunction,Judge Noland found a lack of evi-dence of racial motivation by theschool board in selecting a site forthe new high school and the stu-dent busing system, noting, howev-er, that future events might justifyfuture judicial intervention. WhenSouthside High School opened in1962, the school board had permit-ted the students to choose the sym-bols to represent their school, and a theme was selected based on the“old South.” The plaintiffs claimedthe Southern symbols chosen wereoffensive to black students and discouraged their participation in school activities. While JudgeNoland found that plaintiffs hadfailed to establish any racial orpolitical discrimination behind theschool board’s “consistently appliedpolicy,” he did admonish the boardabout the advisability of maintain-ing offensive symbols, urgingschool authorities “to bring aboutthe elimination of school symbolswhich are offensive to a racialminority.”2 The Seventh CircuitCourt of Appeals agreed with JudgeNoland, affirming his decision.

On April 20, 1979, the UnitedStates Auto Club (USAC) rejectedthe Indianapolis 500 entries of six racing teams affiliated withChampionship Auto Racing Teams(CART), its upstart rival, claimingthat the six were “not in goodstanding with USAC.” CART, thesix teams, and their eight drivers

Judge James Ellsworth Noland: Fairness was ‘essential’By Suzanne S. Bellamy


Suzanne S. BellamyIndianapolis, Ind.

[email protected]

RG 06.13_RG 09.05 6/19/13 9:15 AM Page 22

therefore commenced a lawsuitagainst USAC and the IndianapolisMotor Speedway (IMS), chargingviolations of the Sherman antitrustlaws based on a conspiracy betweenUSAC and the IMS, for which theysought a preliminary injunctionprohibiting the exclusion of the sixteams from the upcoming 500 race.The action was assigned to JudgeNoland and played out in a highlycharged and much publicized envi-ronment. Judge Noland initiallyallowed the eight individual driversto remain as plaintiffs in the casedespite USAC’s claim that the dri-vers lacked standing and were indi-vidually welcome to enter the raceas parts of other teams. This claimseemed disingenuous to JudgeNoland, however, since all eightwere bound by contracts to theirrespective owners and could notdrive in the race or at the Speedwayunless with those owners. JudgeNoland agreed with CART that thedrivers were also proper plaintiffsas they had much to gain or lose by the outcome of the proceedings.A banner headline in The Indianap-olis Star on May 6, 1979, pro-claimed Judge Gives CART ‘Go Sign’ after Judge Noland ruledfinally that the six teams and eightdrivers from CART were eligible toparticipate in the 63rd running ofthe Indianapolis 500. Followingthree days of testimony, the Judgehanded down his decision in 42minutes, holding that the defen-dants’ action in excluding the teamswas “too severe,” and reasoningthat “if only CART entrants wereexcluded, the court might let mon-etary damages decide this matter.But because of the irreparable harmthat could be suffered by these dri-vers – the keystones of these teams– there is no way the driver plain-tiffs can sit out the Indianapolis500.” He stressed that his decision“would preserve the status quo andserve the public interest.”3

After a series of eight closelytimed bombings terrorized the resi-dents of Speedway, Ind., in 1978,causing serious injury to two per-sons, Brett C. Kimberlin, a formerIndianapolis health store ownerand convicted drug smuggler, wascharged with six of the bombings.Judge Noland presided overKimberlin’s first trial in the fall of 1980. In resolving a motion tomove the trial from Indianapolisdue to extensive pretrial publicity,Judge Noland took over the ques-tioning of the jurors himself in aneffort to determine their states ofmind, questioning each panelist inconsiderable detail. Ultimately, herejected the defense motion, statinghis belief that the passage of timesince the 1978 bombings had soft-ened the otherwise prejudicialimpact of the publicity. The courtalso rejected another defensemotion that sought to limit the testimony from government


witnesses, which had been obtainedunder hypnosis induced by policeinvestigators. The prosecution waslimited largely to a circumstantialcase, while Kimberlin’s defensefocused on alibi evidence.Following a 12-day trial, thesequestered jury deliberated 15-1/2hours before convicting Kimberlin,but only on nine lesser charges,prompting Judge Noland to declarea mistrial on the bombing charges.Ultimately, three trials wererequired before Brett Kimberlinwas convicted of the Speedwaybombings themselves.

In 1982, Judge Nolandpresided over the high-profile pub-lic corruption trial of Phillip E.Gutman, the former president protempore of the Indiana Senate, whowas charged with joining in a con-spiracy to extort $55,000 from theIndiana Railroad Association (IRA)between 1972 and 1976. Payments


Artist: Edm

und Brucker, 1987

RG 06.13_RG 09.05 6/24/13 9:18 AM Page 23

had been funneled by HowardOdom, the IRA’s executive director,to another former senate leader,Martin K. Edwards, who allocatedthe money among himself, Gutmanand one other in exchange for theirassistance in securing the repeal ofthe Indiana “full crew” law, whichrequired all train crews to include a fireman. Gutman characterizedthe money as a legitimate retainerfor legal work. Shortly before trialwas set to begin, both Odom andEdwards pled guilty, with Odomagreeing to testify against Gutman.

Judge Noland faced severaldifficult procedural and evidentiaryissues during Gutman’s trial. Two involved the mental state ofHoward Odom, who had previous-ly manifested signs of mental ill-ness. Gutman’s counsel moved tohave Odom examined by a psychia-trist before being permitted to testify, followed by a hearing on his competency to testify. JudgeNoland denied both of theserequests. As the Seventh Circuitnoted in affirming these rulings,courts “are reluctant to open thedoors to sanity hearings for wit-nesses.” Gutman’s counsel alsosought a mistrial after discoveringthat several jurors had learned thereal reasons for Edwards’ nonap-pearance at the trial; again, themotion was denied. The judge didexcuse those jurors who said theycould not consider Gutman’s caseindependently of Edwards’ case.These decisions were upheld onappeal, with the reviewing courtcrediting Judge Noland with suc-cessfully “creating an atmospherein which jurors were unafraid tovoice in open court doubts abouttheir own impartiality.” After thejury returned its verdicts againstGutman, Judge Noland sentencedhim to three years in prison andfined him $10,000.4

Near the end of Judge Noland’sjudicial tenure, he gained interna-

tional notoriety by a 1989 decisionhe handed down in a case watchedclosely by museum officials andantiquities dealers around theworld. A suburban Indianapolis artdealer, Peg Goldberg, had acquiredfour 6th-century Byzantine mosaicsremoved from the ceiling of achurch in northern Cyprus after1976, for which she paid $1.1 mil-lion to a Turkish art seller. Themosaics were among a handful ofsurviving artifacts of Byzantine reli-gious decorations with significantartistic, cultural, historic and spiri-tual value. Contending that thearchbishop of Cyprus was the true owner of the church and all itscontents, the Federal Republic ofCyprus and the AutocephalousGreek-Orthodox Church of Cyprussued Goldberg to prevent the sale ofthe mosaics to the Getty Museumin Malibu, Calif., for $20 million.Goldberg maintained that she hadpurchased the mosaics in goodfaith, believing they were aban-doned relics pulled from the ruinsof the church, and that they wereripe for salvage under internationalconventions.

One of Judge Noland’s biggestchallenges in this case was to decidethe choice of law issue. Because thesale of the mosaics was effectuatedin Geneva, Goldberg argued thatSwiss law should be applied, whichprotected buyers in good faith even if the seller turned out to be a thief. The church urged the courtto apply Indiana law, holdingGoldberg to a higher standard thatdictates that a thief obtains no titleto stolen goods. Judge Noland con-cluded that Switzerland had “aninsignificant relationship to thissuit, and because Indiana hasgreater contacts and a more signifi-cant relationship to this suit, thesubstantive law of the state ofIndiana should apply to this case.”The question of Goldberg’s goodfaith and/or due diligence therefore

was irrelevant since “a thief cannotpass any right of ownership ofstolen items to subsequent pur-chasers.” Since all parties agreedthat the mosaics were stolen, underIndiana law, “Goldberg neverobtained title to or right to posses-sion of the mosaics.” Alternatively,Judge Noland considered what theoutcome would be if Swiss law wereapplied and concluded that even ifthat had been the case, Goldbergwould not have prevailed. He therefore ordered that possession of the mosaics, then stored in an Indianapolis vault, be handedover to the Autocephalous Greek-Orthodox Church of Cyprus.5

The reaction to JudgeNoland’s decision was widespread.Most observers applauded his rul-ing, which gave the mosaics back to the church. The New York Timesran the story about the ruling on its front page while Cyprus’ ambas-sador to the United States called theWhite House in Washington, D.C.,to “express my joy and delight, andthat of my country.” In Cyprus, the president of the Republicannounced the decision at a publicceremony, causing the crowd ofnearly 10,000 to break into pro-longed strenuous applause. Inaffirming Judge Noland’s decision,the Seventh Circuit Court ofAppeals wrote: “Indiana law con-trols every aspect of this case,” thussidestepping a review of his alterna-tive ruling under Swiss law. JudgeNoland’s decision was hailed for itsinfluence in allowing countries toseek to reclaim national art trea-sures that were bought and sold in the international black market.

Judge Noland became chiefjudge of the U.S. District Court forthe Southern District of Indiana inJune 1984, serving in that role untilhe took senior status in early 1987.Those familiar with Judge Noland’scareer find it difficult to label hisjudicial philosophy as either

JUDGE NOLAND continued from page 23


RG 06.13_RG 09.05 6/19/13 9:15 AM Page 24

conservative or liberal. He was nodoubt the most conservative of theDemocrats serving with him on thefederal bench at the time, but healso was perhaps the most lenientin the scope of evidence he allowedto be adduced by the lawyers attrial. Evidencing his belief that fair-ness in the proceedings was key,Judge Noland once commented,“It’s essential to a fair trial that thejudge or jury have the chance toknow any background that may berelevant to the case, even if somewould turn out to be irrelevant.”He promoted the importance of adefendant’s confidence in the fair-ness of the proceedings, wherebythe accused always had the oppor-tunity to tell his story “within [rea-sonable] limitations.”6 Tending to prefer overseeing civil cases tocriminal cases, he was generally a lenient sentencer. His demeanor

in court was calm and courteousbut always fully in charge. Oneattorney likened Judge Noland’stechnique as “a fine example of theiron fist in the velvet glove.”7

Sadly, Judge Noland’s lifeended quickly and prematurely inIndianapolis, following a brief ill-ness, on Aug. 12, 1992, at the age of72. An editorial in The IndianapolisStar extolled his many extraordi-nary qualities as a judge and hisremarkable tenure of service to thejudiciary and the country, noting:“He was patient, warm, kind, com-passionate, considerate, clear think-ing, wise and fair. … He will longbe remembered in the hearts andminds of his colleagues and friendsboth as a good judge and a finehuman being.”8

1. Hon. James E. Noland, interview by WilliamC. Potter II, March 27, 1990, Indianapolis,Ind., transcript, Historical Society of the U.S.

District Court for the Southern District of Indiana, Indianapolis, Ind.

2. Banks v. Muncie Community Schools, 433 F.2d292 (7th Cir. 1970), quoting Judge Noland’sunpublished decision.

3. Indianapolis Star, May 2, 3, 4, 5 and 6, 1979.

4. United States v. Gutman, 725 F.2d 417 (7th Cir. 1984), cert. denied, 469 U.S. 880 (1984);Indianapolis Star, Feb. 22, 23, 24, 25, 26 and27, 1982; March 3, 4, 5, 6, 9, 10, 11 and 12,1982. Judge Noland subsequently reduced the sentence to one year of executed time.

5. Autocephalous Greek-Orthodox Church ofCyprus v. Goldberg, 717 F.Supp. 1374 (S.D.Ind. 1989); Indianapolis Star, May 31, June 1,2, 3, 5, 6, 7 and Aug. 4, 1989.

6. Indianapolis Star, Aug. 13, 1978.

7. Id.

8. Indianapolis Star, Aug. 17, 1992.

Suzanne S. Bellamy, J.D., Indianapolis, is a researcher and writer. She is theauthor of Hoosier Justice at Nuremberg(2010), published by the IndianaHistorical Society Press; a former editori-al assistant on the Papers of Lew andSusan Wallace; and served as assistantgeneral counsel of Anacomp, Inc.


� ��

The Supreme Court’s recentdecision in Matter of Usher,___ N.E.2d ___ (Ind.

2013), www.in.gov/judiciary/opinions/pdf/05171304per.pdf(May 17, 2013), has been the sub-ject of considerable comment with-in and outside the bar. Briefly, thecase is about a male law firm part-ner, the Respondent in the case,whose romantic interests werespurned by a former female summer intern. After leaving thelaw firm where they had workedtogether, the Respondent persis-tently and unsuccessfully tried topursue a romantic relationship withthe intern. The intern had donesome acting in movies, and in oneof them her character was showntopless (although a body doublewas used in the filming process).

The Respondent secured a clipof the semi-nude scene from themovie and used it in a campaign todiscredit and humiliate the internand to interfere with her prospectsfor being hired as an associate at the law firm where they had workedtogether. Among other things, hefabricated an email message thatwas falsely represented to be a chainof email communications amongother lawyers commenting nega-tively upon how the intern’s movierole reflected adversely on theefforts of women to be viewed asrespected members of the legal pro-fession. The Respondent recruitedhis paralegal to email the fabricated

email chain and theclip of the nude sceneat a time when he wasout of the country to51 lawyers at manyprominent firms in the Indianapolis legalcommunity. Using a temporary emailaccount, the paralegalcreated the false pre-tense that the sourceof the email was the

managing partner of the largeIndianapolis law firm where thepartner and the intern had workedtogether during the summer.

Rule violationsThe Rules of Professional

Conduct violations that the hearingofficer and the Court found to besupported by the facts were: Rules3.3(a)(1) (knowing false statementsto a tribunal because of false repre-sentations made by the partner indiscovery in a parallel civil casebrought by the intern); 8.1(a)(knowing false statements of material fact to the DisciplinaryCommission); 8.1(b) (leaving aknown misapprehension of facts by the Disciplinary Commissionuncorrected); 8.4(a) (violating theRules through another – his para-legal); 8.4(c) (conduct involvingdishonesty, fraud, deceit or misrep-resentation); and 8.4(d) (conductprejudicial to the administration of justice).

The Court ordered theRespondent suspended for a periodof no less than three years, withJustice David dissenting from thesanction and urging disbarment –which in Indiana is permanentremoval from the bar with noopportunity for reinstatement.

Findings for RespondentThe Disciplinary Commission

also charged the Respondent withtwo other violations that the hear-ing officer and the Court foundwere not supported. I found oneinteresting aspect of the case to bethe Court’s handling of these reject-ed violations, although I suspect thesanction would not have changedeven if the Court had concludedthat these violations were estab-lished. Like the story about the dogthat didn’t bark, I will discuss therule violations the Court decidedwere not established in the case.

Identity theftThe first unsuccessful charge

was that the Respondent violatedRule 8.4(b) by engaging in a crimi-nal act reflecting adversely on hishonesty, trustworthiness or fitnessas a lawyer in other respects. TheCommission alleged that the crimi-nal act was engaging in the crime ofidentity deception under IndianaCode 35-43-5-3.5 – a C or D felony,depending on the circumstances.The hearing officer held that the charge failed because theCommission had not met its bur-den of proof “that the Respondent’sactions rose to a level of beingcriminal.” The Court deferred tothe hearing officer’s conclusion.The reported decision does notexplain the hearing officer’s reasonfor concluding that the Rule 8.4(b)charge failed.

The elements of the crime ofidentity deception are knowingly orintentionally obtaining, possessing,transferring or using the identifyinginformation of another personwithout the other person’s consentwith intent to harm or defraudanother person, assume anotherperson’s identity, or profess to beanother person. According to thefactual findings in the case, theRespondent suggested to his formerparalegal that the offending emailshould “appear to have originatedfrom somebody with ‘clout’” at the firm where the partner and the intern had previously workedtogether. In fact, the hearing officer and the Court rejected theRespondent’s assertion that he hadsuggested that the paralegal use a“farcical name,” not the real nameof a law firm partner. Acting withinthe parameters of the Respondent’ssuggestion, it was apparently theparalegal’s choice, and not theRespondent’s specific direction, to select the name of the managingattorney of the law firm as the fictitious source of the email.

ETHICS CURBST

ONE

Usher considered: identity theft and unwelcome advancesBy Donald R. Lundberg


Donald R. LundbergBarnes & Thornburg LLP

Indianapolis, [email protected]

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 26

We are left to speculate whythe Rule 8.4(b) charge failed. Theparalegal was clearly acting as theRespondent’s agent in creating afalse email account in the name of alawyer “with clout” at the law firmand causing an email message to bedistributed from that account with-out the authorization of the lawyerwhose name was used. Perhaps thefailure of proof lay in the fact thatthe Respondent did not specify theindividual the paralegal settled onas the person who was to be thepurported source of the fictitiousemail. But that still doesn’t takeinto account that the Respondent’sconduct was clearly involvedenough that one would expect himto be criminally culpable under theaiding, inducing or causing statute.IC 35-41-2-4.

It should be noted that alawyer does not have to be convict-ed of a crime for the lawyer to violate Rule 8.4(b). It is the crimi-nal conduct, not the conviction of a crime, that is the violation. It ismerely easier for the Commissionto prove a Rule 8.4(b) violationwhen there is a criminal convictionbecause the higher standard ofproof (beyond a reasonable doubt)in the criminal case will collaterallyestop the Respondent from denyingthat there was criminal conductunder the lower standard of proof(clear and convincing evidence) in the lawyer discipline case.

Conduct manifesting bias or prejudice

Second, the Commissioncharged the Respondent with vio-lating Rule 8.4(g), which states: “It is professional misconduct for a lawyer to engage in conduct, in aprofessional capacity, manifesting,by words or conduct, bias or preju-dice based upon … gender … .”The Court agreed with the hear-ing officer’s conclusion that theCommission did not meet its bur-

den of proof on that charge. TheCourt’s reasoning was curt: “Theevidence supports a finding that theemail was motivated by personalanger at [the intern] in particularrather than by bias or prejudiceagainst women in general.”

Indiana is among a minority of states that has something likeRule 8.4(g) in its black-letter

professional conduct rules. In fact,the Tennessee Supreme Courtrecently rejected a bid to add simi-lar language to its Rule 8.4. TheABA Model Rules of ProfessionalConduct have similar, but narrow-er, language contained within acomment to Rule 8.4 – not in theblack-letter rule.



RG 06.13_RG 09.05 6/19/13 9:16 AM Page 27

Indiana’s Rule 8.4(g) is more than symbolic – it has been enforced. See, e.g., Matter ofThomsen, 837 N.E.2d 1011 (Ind.2005) (race); Matter of Campiti, 937N.E.2d 340 (Ind. 2009) (socio-eco-nomic status and national origin);Matter of Kelley, 925 N.E.2d 1279(Ind. 2009) (sexual orientation);Matter of McCarthy, 637 N.E.2d 340(Ind. 2010) (race); and Matter ofDempsey, 986 N.E.2d 816 (Ind.2013) (race and religion).

Actions in a professional capacity

Note that the Court did not reject the Rule 8.4(g) chargebecause the Respondent was notacting in a professional capacity.The Respondent and the intern firstbecame acquainted when she was a summer intern and he was a partner in the same law firm. TheCourt’s recitation of the facts of thecase are not precise, but it appearsthat the Respondent did not pursuea romantic relationship with theintern by pressing beyond all rea-son and propriety until after he hadleft that law firm to become a part-

ner in another firm and after theintern had departed the firm for herthird year of law school. This mayhave presented a factual basis (ornot) for the Court to conclude thatthe Respondent was not acting in a professional capacity in pursuingthe unwelcome romantic relation-ship with the intern. But that wasnot the reason the Court gave for declining to find a Rule 8.4(g)violation.

I have previously suggestedthat the use of the words “profes-sional capacity” in Rule 8.4(g)sweep more broadly than otherrules that govern lawyer conductoccurring in the course of repre-senting clients. See Lundberg, “Of Telephonic Homophobia andPigeon-Hunting Misogyny: SomeThoughts on Lawyer Speech,” Vol. 53, No. 10 Res Gestae 22 (June2010). While it is true that theCourt in Usher did not make a pos-itive finding that the Respondentengaged in the conduct at issue in aprofessional capacity, its decision tonot rely on that reason as a basis forrejecting the Rule 8.4(g) claim sug-gests to me that the Court agrees

that “professional capacity” is,indeed, broader than the more frequently occurring limiting lan-guage in the Rules of ProfessionalConduct: “in representing a client.”See, e.g., Rules 4.1, 4.2 and 4.4.

What we don’t know fromUsher is where the line betweenconduct in a professional versuspersonal capacity should be drawn.The Respondent’s conduct in Usherwas very much tied up with his pro-fessional role as a lawyer. He onlybecame acquainted with the internbecause they worked together in alaw firm for a summer. The mostoffensive conduct (the fabricatedemail and unwelcome romanticinterest) occurred after theRespondent’s and the intern’s co-working relationship ended. It wasa step or two removed from for-mally acting in his capacity as alawyer, but still very much wrappedup in his identity as a lawyer. Wewill have to wait for another case tosee where the Court draws that line.

Reading Title VII into Rule 8.4(g)

I also speculated before in myprevious column about Rule 8.4(g)about whether that rule, in effect,incorporated into the Rules ofProfessional Conduct the law ofemployment discrimination underTitle VII of the Civil Rights Act of1964 and similar statutes. The jury(well, in this case, the SupremeCourt) is still out on that intriguingquestion. Usher did not presentfacts that would have called uponthe Court to grapple with thatquestion since the Respondent andthe intern were no longer in thesame workplace setting when theRespondent’s conduct devolved topursuing an unwelcome romanticrelationship.

What is remarkable about the Court’s Usher decision is itsrationale for deciding that the

ETHICS CURBSTONE continued from page 27



317.255.1000

1901 BROAD RIPPLE AVENUEINDIANAPOLIS, IN 46220

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 28

Benefits&

Member Services

Indiana State Bar Association

–Services to Assist Your Legal Practice–• Casemaker – Online legal research tool Unlimited research at no additional cost.• CLE Programs – (800) 266-2581 Quality programs at discounted prices.• File Engine Server – (317) 917-2000• Hewlett-Packard – (888) 202-4465, Code: STBAR or www.hp.com/go/statebar• Indiana Legal Directory – (800) 447-5375• Intercall – Telephone conferencing – (800) 636-2377• Office360 – Special pricing on office supplies. www.o�ce3sixty.com/o�web/login.aspx ID: ISBA Password: REG22555• Officescape – Discounted rates on temporary offices, virtual offices & more. (888) 893-1234 or www.o�cescape.com• 26 Law Sections• United Parcel Service – (800) 325-7000

–Other Vendors–O�ering special rates for ISBA members:

• Adaptibar – Online study tool for the Multistate (MBE) portion of the bar exam. ISBA student members save $100. (877) 466-1250, Code: INBAR or visit www.adaptibar.com• American Bar Association Books – 15% discount at www.abanet.org/abastore - Code: PAB8EINB • Brooks Brothers – Save 15% on non-sale items. membership.brooksbrothers.com Code: 27400, PIN: 80190• Framing Success - Frames for certificates & awards. www.framingsuccess.com Code: Indiana State Bar Association• Go Next – Travel Program – (800) 842-9023 www.gonext.com/inbar• Indy Park Ride & Fly – (888) 230-0300 www.indybizxpress.com/indiana-state-bar-association• Men’s Wearhouse Perfect Fit – www.menswearhouse.com

–Miscellaneous Programs–For information about these programs,

contact the Association o�ce at (800) 266-2581• Clients’ Financial Assistance Fund• Law-Related Education Programs• JLAP – (866) 428-5527 or www.in.gov/judiciary/ijlap• Legal Ethic Opinions

–Publications–• Res Gestae• e-Addendum• Public Service Information Pamphlets• Section Newsletters

–Insurance through ISBA Insurance Agency–(877) 647-2242

• Health Insurance/Major Medical/Dental/Optical• Disability/Life/Long Term Care• Long Term Care & Life• Homeowners/Auto, Business/Auto• Worker's Compensation/Business/Property Liability

–Ritman & Associates–(888) 3Ritman

• Professional Liability Insurance• Employment Practices Liability Insurance

–Online Services–• CLIO – Web-based practice management system. (888) 858-CLIO or www.goclio.com/landing/inbar• e-Discussion lists• EsqSites123.com – Website Design (877) 748–3712 or esqsites123.com• IndianaDocs – legal forms – (800) 266-2581• ISBA Career Center & Job Board – jobs.inbar.org• LawPay – Credit Card Processing (866) 376-0950, or www.tinyurl.com/4uqe7du• LexisNexis – (317) 201-3364 Don Owens, [email protected]• Sure Payroll – online payroll service (877) 954-7873 www.lps.surepayroll.com/ISBA

–Car Rental Programs–�e following car agencies o�erspecial rates for ISBA members:

• Avis – (800) 331-1212 Discount No. A861100• Budget – (800) 527-0700 Discount No. D414400• Hertz – (800) 654-2210 Discount No. CDP343552

–Financial Programs–Special rates for ISBA members:

• ABA Retirement Funds Program – (800) 826-8901• The Hartford – (317) 324-8660, Tom Hedrick• Raymond James – (317) 566-6418, Patrice Thomas• Capital One VISA®– receive 1.25 miles for every dollar spent – creditcard.inbar.org• Regions Bank – (317) 221-6039, Schiela Peña

Respondent’s conduct did not vio-late Rule 8.4(g): not because theRespondent was acting in somenon-professional capacity, butbecause the Respondent’s motiva-tion was anger at being spurned bya particular woman and not “biasor prejudice against women in general.”

Given the Court’s reasoning,what if the Respondent’s conducthad taken place when he and theintern still worked in the same lawfirm? Persistent, unwanted roman-tic overtures by a male partner to afemale summer intern would likelystate a hostile work environmentclaim under Title VII, regardless ofwhether the partner discriminatedagainst women in general.

Does this mean that theCourt’s test for the application ofRule 8.4(g) is that it is limited solelyto conduct demonstrating bias or

prejudice against women (or racial,ethnic or religious groups and otherclasses of individuals mentioned inthe rule) “in general?” And does itmean that Rule 8.4(g) fails to reachhostile workplace conduct againstan individual who is a member of a protected class for reasons notgeneralized to the entire protectedclass? In a typical hostile work envi-ronment case, where a superiormakes unwelcome romanticadvances to a subordinate, it mightbe difficult to prove that the con-duct exhibited bias, prejudice orhostility to (as in this case) womenin general, but that would not pre-clude a finding of liability underTitle VII. We are left to speculatewhether the Court believes there is daylight between Rule 8.4(g) andTitle VII jurisprudence? Here, too,we will need to await further devel-opments.

Creating non-discriminatorylaw firm culture

Whether restricting the appli-cation of Rule 8.4(g) to prohibitingonly categorical bias or prejudice isa good or a bad thing is up to you,dear readers. If my understandingof the Court’s reasoning in reject-ing the Rule 8.4(g) charge in Usheris correct, the EEOC and not theDisciplinary Commission is where I would need to complain if I werea young, summer intern experienc-ing unwanted, but individualized,sexual harassment by a law firmpartner.

But let’s not even go there if we don’t have to. Law firms needrobust, written policies to addressdiscrimination and other hostileworkplace situations. Equallyimportant, they must reinforcethose policies by creating a law firm

ETHICS CURBSTONE continued from page 28


Start at the TopContact the former Indiana Securities Commissionerand his partners regardinginvestments gone bad.

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 30

culture where recipients of harass-ment feel safe to complain internal-ly and know their complaints willbe taken seriously. Law firm leadersneed to be committed to hostility-free workplaces and should be will-ing to take appropriate action evenwhen the harasser is in a position of power. If firm leaders don’t havethe backbone to enforce anti-dis-crimination policies, victims ofworkplace harassment will be justi-fied in seeking relief elsewhere. If I’m wrong in my reading ofUsher, that elsewhere might be the Disciplinary Commission.

Revisiting Canadain light of Snulligan

Last month, I wrote at lengthabout Matter of Canada, 986N.E.2d 254 (Ind. 2013), and moreor less concluded that the casestood, in part, for the propositionthat the Court was not all thatinterested in getting into the weedsin figuring out how much money a flat-fee lawyer needs to refund toa client who discharges the lawyerbefore the case concludes. The inkwas barely dry when the Courtissued its disciplinary order inMatter of Snulligan, ___ N.E.2d ___ (Ind. 2013), www.in.gov/ judiciary/files/order-discipline-2013-49s00-1301-di-55a.pdf(May 21, 2013).

Wouldn’t you know it? TheCourt went right where I thought it had no appetite to go. TheSnulligan and Canada facts werefairly close.

The Respondent in Snulliganwas hired to handle the defense ofan A felony/C felony drug case for a flat fee of $12,000. She received$6,000 up front. There were severalmonths of delay between the filingof the charge against the client andthe client’s arrest. After the clientwas arrested, the client dischargedthe Respondent and asked for somemoney back.

The Respondent, who had notbeen keeping contemporaneoustime records, recreated a statementof her time that supported a claimthat she had earned the entire$6,000 and then some. Based on the evidence at the disciplinaryhearing, the hearing officer was notimpressed with the quality of theRespondent’s proof of the time sheworked on the client’s case beforehe was arrested. The hearing officerthought that the value of theRespondent’s services was closer to $1,000 than the $6,715 claimedby the Respondent.

The Court held that theRespondent’s fee and her receipt ofhalf of it upfront was not unreason-able, so there was no violation ofthe unreasonable fee rule – Rule1.5(a). But the Court held that it was a violation of Rule 1.16(d)when the Respondent kept theentire $6,000 after she was dis-charged.

A key difference betweenSnulligan and Canada is that inCanada, the Respondent got theclient a plea offer that was “similar”to the offer successor counsel wasable to get. In Snulligan, successorcounsel had a whole lot more workto do. Even so, on an estimatedhourly fee basis, the Respondent in Canada received $500 per hour, whereas the Respondent inSnulligan claimed the fair value ofher fees at a rate of $175 per hour.

Why the difference in out-come? In Canada, the Respondentwas credible in his claim that hiswork had secured a plea offer thatwas similar to the one the clientlater accepted through other coun-sel. In Snulligan, not only did theRespondent not get the client closeto the goal line, she was also notcredible in her attempt to justify thevalue of her work up to the time ofbeing discharged.

What’s the lesson from thesetwo cases? When you work on aflat-fee basis and either quit or getfired before the representation isconcluded, don’t let your frustra-tion with the client stand in the way of exercising sound judgment.Be meticulously fair in offering torefund some of the fee to the client.Get independent advice if yourjudgment is too clouded by emo-tion. If the client is still dissatisfied,I doubt the Commission or theCourt will want to use the lawyerdiscipline process to second-guess a lawyer’s fairness and good faith in offering a refund. �


RG 06.13_RG 09.05 6/19/13 9:16 AM Page 31

In March, the Indiana SupremeCourt issued five opinions incivil matters and granted trans-

fer in six civil cases. The IndianaCourt of Appeals issued a total of17 published opinions in civil mat-ters, some of which are summarizedbelow. Full text of all Indianaappellate court decisions renderedduring March, including thoseissued not-for-publication, areavailable through Casemaker atwww.inbar.org or on the IndianaCourts website, www.in.gov/judiciary/opinions.

SUPREME COURT

Day laborers and the WageClaims and Wage Payment Acts

A unanimous Indiana SupremeCourt held that day laborers work-ing for a labor service did not lackany “immediate expectation of pos-sible future employment with thesame employer” so as to place them

within the scope ofIndiana’s Wage ClaimsAct and its exclusiveadministrative reviewprocess; rather, thetrial court had subject-matter jurisdiction of claims for unpaidwages under the WagePayment Act. Walczakv. Labor Works-ForWayne LLC, 2013 WL961629 (Mar. 13)(Massa, J.).

Two Indianastatutes requireemployers to paywages within certaintime periods: theWage Payment Act,which applies to cur-rent employees andthose who either permanently or tem-porarily “voluntarilyleave [their] employ-ment,” and the WageClaims Act, which

applies to employees who havebeen “separate[d] … from the pay-roll” or whose work was suspendedas a result of an industrial dispute.On a day when she neither soughtnor received work, a “day laborer”filed this putative class actionagainst her employer labor service,seeking unpaid wages under theWage Payment Act. The employermoved for “summary judgment,”arguing that the laborer’s claimsarose under the Wage Claims Act,which, unlike the Wage PaymentAct, created an administrativereview process that deprived the trial court of jurisdiction. Thetrial court granted the employer’smotion, and the day laborerappealed. The Court of Appealsheld that whether the day laborerwas separated from the payroll bythe employer within the meaning of the Wage Claims Act was a ques-tion of fact to be “resolved in thefirst instance by the administrativeagency” (here, the Department ofLabor) and remanded the case withinstructions to dismiss.

On transfer, the IndianaSupreme Court clarified that whilestyling its motion as one for sum-mary judgment, the employer hadmoved to dismiss the case for lackof subject-matter jurisdiction underTrial Rule 12(B)(1); consequently,it would review factual findings(made without an evidentiary hear-ing) and legal conclusions de novo.Turning to the merits, the Courtrejected the employer’s claim thatthe Department of Labor mustdetermine jurisdiction, describingthe underlying statutory construc-tion issue as “squarely within thejudicial bailiwick.” The Court thenconstrued “separate[d] from thepayroll” under the Wage ClaimsAct to mean having “no immediateexpectation of possible futureemployment with the sameemployer.” Looking to other jurisdictions, the Court found the

legislature could reasonably subjectthe claims of discharged employeesto administrative review becausethey were more likely motivated byanimus. The Court went on to findthe plaintiff day laborer outside the scope of the Wage Claims Actbased on her realistic expectation of future work. Day laborers, theCourt concluded, “are no less enti-tled to the statutory protectionsthat the General Assembly has provided than any other Hoosieremployees.” It reversed the dis-missal of Wage Payment Act claimsand remanded the case to the trialcourt.

Grandparent visitation rights

A unanimous Court held that a grandparent visitation order thatfailed to adequately address fourfactors derived from the UnitedStates Supreme Court’s considera-tion of parental rights in Troxel v. Granville, 530 U.S. 57 (2000),infringed a parent’s fundamentalright to make child-rearing deci-sions in In re Visitation of M.L.B.,K.J.R. v. M.A.B., 2013 WL 850848(Mar. 7) (Rush, J.).

Mother and Father never mar-ried and ended their relationship afew months before the birth of theirson in 2004. Paternity and supportwere established several years later,but Father never sought parentingtime, was at times subject to arestraining order, and had no con-tact with his son beginning in 2007.By contrast, paternal Grandfathersought, and Mother allowed, fre-quent contact with the son on thecondition, beginning in 2007, thatFather not be present. In 2009,Stepfather initiated adoption pro-ceedings. When Father contestedthe adoption, paternal Grandfatherintervened to petition for a visita-tion order. Following a joint hear-ing in which Mother testified thatshe did not object to his continuedvisitation, the trial court ordered

REC

ENT DEC

ISIO

NS 3/13

Appellate civil case law updateBy D. Lucetta Pope and Ryan G. Milligan


Ryan G. MilliganFaegre Baker Daniels LLP

South Bend, [email protected]

D. Lucetta PopeFaegre Baker Daniels LLP

South Bend, [email protected]

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 32

Grandfather visitations of oneweekend per month, a 10-day sum-mer vacation, and 10-hour visits on certain specified days, with-out restricting Father’s presence. The court terminated the Father’sparental rights the next day.Mother appealed the visitationorder, and a divided panel of the Court of Appeals affirmed.

On transfer, the IndianaSupreme Court recounted the history of grandparent rights inIndiana, observing that courts firstrecognized limited grandparent visitation rights in 1981 and that the legislature enacted theGrandparent’s Visitation Statuteonly one year later. That statute,amended to include children bornoutside marriage and recodified at Indiana Code §31-17-5, hasremained largely unchanged. But as the Court further explained, thetension between statutory rightsand the constitutional right of nat-ural parents to direct the upbring-ing of their children drew the atten-tion of the United States SupremeCourt in Troxel v. Granville, 530U.S. 57 (2000). Based on principlesadopted by the plurality in Troxel,the Indiana Court of Appeals sub-sequently articulated four factorsthat a grandparent visitation order“should address,” i.e., (1) that fitparents’ decisions about visitationare rebuttably presumed to pro-mote the child’s best interests; (2) that such decisions warrant special weight; (3) that “someweight” attaches to whether visita-tion has merely been limited orwould extinguish the grandparentrelationship; and (4) whether thegrandparent has shown visitation to be in the best interests of thechild. In 2009, the Court of Appealsdeclared consideration of the fourfactors mandatory.

Turning to the visitation orderitself, the Court found no indica-tion the trial court had considered

the first two factors, describingthose omissions as sufficient, of themselves, to make its orderunconstitutional. The Court furtherfound that by ordering visitationlacking any limitation on theFather’s presence and “farexceed[ing] the parties’ earlier pat-tern” without making supportingfindings – without, for example,determining why those limits were

unreasonable or how the changewould affect the child – the trialcourt infringed on a parent’s fun-damental right to make child-rear-ing decisions. Concluding thatthese insufficiencies made the trialorder voidable rather than void, theCourt remanded the case for entryof new findings and conclusions


Failure to properly diagnose

People are at the heart of our work

A medical practitioner’s failure to properly diagnose is a leading cause of serious injury from Medical Malpractice. We have over 33 years’ experience helping people injured from complex medical malpractice. Our attorneys, paralegals, network of experts, staff physician attorney and, if necessary, successful trial experience are ready to help you now.

Call us. We’d like to discuss your case.

MONTROSS MILLER MULLER MENDELSON & KENNEDY, LLP

8900 Keystone Crossing, Suite 1250Indianapolis, Indiana 46240

1-800-394-3094 www.4mklaw.com

A T T O R N E Y S A T L A W

Passionate plaintiff advocates for more than 33 years


RG 06.13_RG 09.05 6/19/13 9:16 AM Page 33

based on all four factors without a new hearing.

Insurance coverage exclusionfor individuals in the ‘care’ of hotel

A child molested while spend-ing the night in a hotel room rentedto his friend’s mother was in thehotel’s “care,” the Indiana SupremeCourt held, for purposes of aninsurance policy that excluded cov-erage for acts occurring when thevictim was in the “care, custody or control” of an insured. HolidayHospitality Franchising, Inc. v.AMCO Ins. Co., 2013 WL 830920(Mar. 6) (David, J.).

A young hotel guest sued thehotel, franchisor and others afterbeing molested by an off-duty hotelemployee. The hotel’s insurer filedsuit, seeking a declaratory judgmentthat its policy did not provide cov-erage or a duty to defend. The trial

court granted summary judgmentto the insurer, and the franchisorappealed. Finding a genuine ques-tion of fact as to whether the policyexcluded coverage, the Court ofAppeals reversed – and on rehear-ing clarified that its reversal appliedonly to the franchisor as the soledefendant to file a notice of appeal.

On transfer, the IndianaSupreme Court examined whetherthe molestation fell within a cover-age exclusion for acts occurringwhen the victim was in the “care,custody or control” of an insured.Applying the usual and commonmeaning of the phrase, the Courtfound no indication that the child,while staying with a friend’s moth-er, was in the hotel’s “custody”; and lacking any record evidence onhotel rules, the Court declined tospeculate that the child was underthe hotel’s “control.” As a matter of

law, however, the Court found therecord sufficient to place the childin the hotel’s “care”: the child wasmolested while a guest of the hotel,while in a room rented to themother of his friend, and whilebehind a door locked by an elec-tronic key provided by the hotel.Further, the hotel owed the child, as at least the equivalent of a busi-ness invitee, a duty of care. That the child was under the care of hisfriend’s mother did not, JusticeDavid explained, mean he couldnot also be under the hotel’s care.The Court affirmed the trial courtgrant of summary judgment.

Chief Justice Dickson con-curred, writing separately to assertthat the duty of care owed hotelguests as business invitees suppliesthe proper understanding of “care.”Dissenting, Justice Rucker wrotethat whether the franchisor engagedin the “function of watching,guarding, or overseeing” the childremained a question of fact.

Rescission of insurance contractand offer to return premiums

The Indiana Supreme Courtheld that an insurer need not return the insureds’ premiums after rescinding the policy for fraudif the claim paid by the insurerexceeded the premiums paid by theinsureds. Dodd v. American FamilyMut. Ins. Co., 2013 WL 812385(Mar. 5) (Dickson, C.J.).

After discovering that theinsured homeowners had failed todisclose previous fire losses on theirinsurance application, the insur-ance company denied their claimarising from a house fire and void-ed their policy. The homeownerssued, claiming breach of contractand intentional infliction of emo-tional distress. The trial courtgranted summary judgment for the insurance company on bothclaims. The homeowners appealedon the grounds that the insurance

RECENT DECISIONS 3/13 continued from page 33


RG 06.13_RG 09.05 6/19/13 9:16 AM Page 34

company had failed to return theirpremiums. Months later, the insur-ance company successfully movedto interplead all of the collectedpremiums. The Court of Appealsaffirmed in part, reversed in part,and remanded for further proceed-ings on the breach of contractclaim.

Reviewing the summary judg-ment, the Indiana Supreme Courtacknowledged that an insurer mustoffer to return premiums within a reasonable time after discoveringa fraud or waive the alleged fraud.The Court noted, however, that thehomeowners failed to make or sup-port this argument in opposing theinsurance company’s motion forsummary judgment – first raisingthe issue in their motion to correcterror. The Court also noted that atender is not necessary where, asthe designated evidence established,the claim paid by the insurancecompany exceeded the premiumspaid by the insureds. Consequently,the Court affirmed the trial court’sgrant of summary judgment anddirected the trial court to releaseand return tendered premiums tothe insurance company.

Constitutionality of ChoiceScholarship Program

In a unanimous decision, theIndiana Supreme Court upheldIndiana’s Choice ScholarshipProgram, Ind. Code §§ 20-51-4-1 et seq., against challenges underthree separate provisions of theIndiana Constitution. Meredith v.Pence, 984 N.E.2d 1213 (Mar. 26)(Dickson, C.J.).

Indiana’s Choice ScholarshipProgram provides vouchers to eligible parents for use in sendingtheir children to private schools.Following its creation by statute,several taxpayers brought an actionagainst state officials, contendingthat using public funds to pay forthe teaching of religion and to fund

private schools instead of the sys-tem of common schools violatedmultiple provisions of the IndianaConstitution. Two parents intend-ing to use the voucher programintervened to join the defendants.On cross motions for summaryjudgment, the trial court grantedjudgment in favor of the defen-dants. The plaintiffs appealed, andthe defendants filed a joint motion

to transfer jurisdiction to theSupreme Court.

The Supreme Court grantedtransfer, emphasizing that the poli-cy merits of the voucher programwere not germane to the issuesbefore it and that the “desirabilityand efficacy of school choice arematters to be resolved through the



� ��

political process.” Turning to themerits, the Court first addressedArticle 8, Section 1, which directsthe legislature to provide “for ageneral and uniform system ofCommon Schools.” The plaintiffsargued that this provision prohibitsthe legislature from providing edu-cation by any other means. TheCourt found, however, that Article8, Section 1 confers two distinctduties on the legislature – toencourage moral, intellectual, sci-entific and agricultural improve-ment and to provide a system ofcommon schools without tuition. It reasoned that because theseduties are distinct, the legislaturefulfilled its constitutional duties bymaintaining a system of commonschools, even if encouragingimprovement diverts resourcesfrom that system.

The Court next examinedArticle 1, Section 4, which providesthat “no person shall be compelledto attend, erect, or support, anyplace of worship, or to maintainany ministry, against his consent.”The plaintiffs contended that usinggeneral tax revenues for payment oftuition at private, religiously affili-ated schools amounted to com-pelling support of religious entities.Rejecting this argument, the Courtheld that extending Section 4 tolimit expenditures, rather than pro-hibit government compulsion ofindividuals, would improperlyexpand that section.

The Court last turned toArticle 1, Section 6, which prohibitsmoney from being “drawn from thetreasury, for the benefit of any reli-gious or theological institution.” It determined that a governmentprogram does not violate Section 6

unless the expenditure directly ben-efits the institution. Because “nofunds may be dispersed to any pro-gram-eligible school without theprivate, independent selection by the parents of a program-eligible stu-dent,” the Court concluded that thedirect beneficiaries of the programwere lower-income Indiana familieswith school-age children ratherthan program-eligible schools,”consistent with the requirements ofSection 6. The Court also held thatthe Section 6 prohibition againstgovernment expenditures to benefitreligious or theological institutionsdoes not apply to schools. TheCourt held that Section 6 was “notintended to, nor does it now, applyto preclude government expendi-tures for functions, programs, andinstitutions providing primary andsecondary education” even when it includes a religious component.



RG 06.13_RG 09.05 6/19/13 9:16 AM Page 36

It consequently affirmed the judg-ment of the trial court.

COURT OF APPEALS

Neighborhood association and development of easement

An easement giving non-waterfront landowners in a housingdevelopment access to public landsurrounding a reservoir was intend-ed to create access to the reservoiritself so that the homeowners’ asso-ciation did not violate its purposeor bylaws by spending funds toclear a path to the water. BayColony Civil Corp. v. Pear GasperTrust, 2013 WL 937594 (Mar. 11)(Shepard, Sr. J.).

Two waterfront lot owners in aprivate housing development, bothof whom owned private boat docks,sued the homeowners’ associationto prevent it from using an ease-ment to create reservoir access forother lot owners. On cross-motionsfor partial summary judgment, thetrial court held that the easementgranted access to public land sur-rounding the reservoir but not thereservoir itself and enjoined non-waterfront lot owners from usingthe easement. The trial court alsoheld that the association violated its bylaws by spending funds toclear a path through the easementand across the public reservoirfrontage, ordering the land restoredto its original condition. Reviewingthe plat and covenant, the Court of Appeals found the easementintended not merely to allow lotowners to “gaze upon the shore andthe water” but to reach the wateritself. The court also reasoned thatgiving residents a safer way to reachthe water fell within the associa-tion’s purpose of promoting resi-dents’ health and safety and withingeneral bylaw provisions allowingthe association to advance causesadvantageous to its members. Thecourt reversed the trial court’s grantof summary judgment and ordered

the trial court to grant the associa-tion’s cross-motion for partial sum-mary judgment.

Adequate service in small claims action

Service directed to the co-defendant owner and propertymanager of a limited liability com-pany was reasonably calculated toinform the company that a smallclaims action had been institutedagainst it. KOA Properties, LLC v.Matheison, 2013 WL 865328 (Mar. 8) (Friedlander, J.)

A limited liability companyappealed the denial of its motion to set aside the default judgment in a small claims action against it.Before addressing the merits, theCourt of Appeals summarily reject-ed the company’s argument thatthe trial court had abused its discre-tion by appointing pro se appellatecounsel in a hearing preceding any

application for counsel, citingComment 4 to Rule 2.2 of the Codeof Judicial Conduct and noting theabsence of any cognizable harm.The court also rejected the compa-ny’s challenge to the sufficiency ofplaintiff’s evidence at the defaulthearing, finding the company hadwaived its argument by not makingit below. The court then turned to the company’s remaining argu-ment: that the trial court lackedpersonal jurisdiction over the com-pany because it was not separatelylisted on the notice of claim orserved separately from its ownerand property manager, also namedas a defendant. Noting that separateservice upon both the individualand the company would have beensent to the same address and direct-ed to the same person, it found service reasonably calculated toinform the company that a small



RG 06.13_RG 09.05 6/19/13 9:16 AM Page 37

claims action had been institutedagainst it. The court affirmed thejudgment of the trial court.

Public bidding and Indiana Antitrust Act

A school corporation could notavoid pubic bidding requirementsby renovating an administrativebuilding through a private, not-for-profit foundation. Alva Electric, Inc.v. Evansville Vanderburgh SchoolCorp., 2013 WL 823315 (Mar. 6)(Kirsch, J.)

On behalf of all similarly situ-ated district taxpayers, eight con-tractors sued a school corporationand not-for-profit, education-pro-moting foundation for declaratoryjudgment and injunctive relief. Thecontractors alleged that renovationsof an administrative building con-stituted a public work project sub-ject to public bidding laws and thatthe six related contracts – includingagreements by which the schoolcorporation conveyed the buildingto the foundation for “one dollar,”the foundation contracted with abuilder to perform renovations, thefoundation executed a promissory

note requiring five yearly install-ment payments to the builder, andthe school corporation entered acontract to repurchase the buildingthrough installment paymentsidentical to the foundation’s obliga-tions under the note – violatedIndiana’s Antitrust Act. On cross-motions for summary judgment,the trial court ruled in favor of theschool corporation and foundation,and the contractors appealed.

Observing that the renovationshad been completed, the Court ofAppeals preliminarily found thateven if technically moot, the con-troversy raised matters of greatpublic interest likely to recur, placing it within a public interestexception to the general rule thatcourts will not review moot claims.Reaching the merits, the courtobserved that the legislature hadcreated a comprehensive statutoryscheme that allowed the school cor-poration to renovate either throughthe Public Work Statute, subject tothat statute’s public bidding andother requirements, or throughstatutory provisions authorizingschool corporations to enter lease-

purchase agreements with buildingcorporations formed solely for thatpurpose, subject to all applicableprovisions of Indiana Code chapter20-47-2. Noting further that thelegislature requires a school corpo-ration to exercise its power in themanner specified by statute wheresuch specifications exist, the courtfound that the school corporationhad failed to comply with eitherspecified means of funding renova-tions and thereby evaded publicscrutiny and input. It concludedthat the six contracts formed a sin-gle, integrated project that lackedauthorization and violated the pub-lic bidding laws. Because the trialcourt based its antitrust ruling onthe contrary finding that no publicbidding law violation occurred, thecourt reversed and remanded thecase for further proceedings consis-tent with its decision. In his dissent,Judge Friedlander concluded noneof the individual contracts wereunlawful and that money paid bythe school corporation to the foun-dation did not constitute a “publicfund” within the meaning of thestatute.

The Home Rule Act Indiana’s Home Rule Act did

not prohibit a local governmentfrom abolishing its parks and recre-ation department where no rule oflaw prohibited it from doing so anddissolution of the department didnot amount to imposing duties onanother political subdivision. Townof Cedar Lake v. Alessia, 985 N.E.2d55 (Mar. 21) (Najam, J.)

Cedar Lake’s town councilpassed an ordinance repealing thecode that established the town’sparks and recreation departmentand giving the council authorityover parks and recreation. The dis-placed members of the parks boardfiled a declaratory judgment actionagainst the town, asserting that the ordinance was improper andbeyond the power of the council.



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

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

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

Guy Kornblum & Associates, 1388 Sutter St.,Suite 820, San Francisco, CA 94109

Tel: 415.440.7800 • Fax: [email protected]

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

www.kornblumlaw.com

Guy Kornblum is also available as a mediator.

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 38

her when it arrived at a rationaldetermination following a multi-ple-step appeals process. Chang v. Purdue Univ., 985 N.E.2d 35(Mar. 19) (Friedlander, J.).

The plaintiff student was dis-missed from nursing school afterbeing placed on academic proba-tion for failing her clinical courseand being involved in multiple confrontations with other students.The student unsuccessfullyappealed the decision to two separate appeals committees and to Indiana University-PurdueUniversity Fort Wayne’s chancellor.After exhausting her appeals, thestudent filed a six-count actionagainst the university and severalother parties, alleging, among otherthings, violation of her contractualand due process rights. On crossmotions for summary judgment,the court entered judgment in favorof the defendants on the student’sdue process claims. Surviving summary judgment, her breach

of contract claim was rejected by ajury and by the court in her motionfor a directed verdict. The studentappealed.

Acknowledging the contractualnature of the student-universityrelationship, the court found literaladherence to an institution’s inter-nal rules unnecessary when dis-missal rests on academic or profes-sional standards and is not arbi-trary. It concluded that the studenthad failed to designate evidencethat the university acted arbitrarily,capriciously or in bad faith whenarriving at its dismissal decision.Rather, the university made exten-sive deliberations and gave the student multiple opportunities toexplain her behavior through theappeals process. For the same rea-sons, the court found the evidencesufficient to support the jury’s verdict against the student and that the trial court did not err


• Will & Trust Contests

• Interference with Inheritances

• Guardianship Disputes

• Co-counsel and Expert Testimony in all Indiana counties

PROBATE LITIGATION

Curtis E. Shirley

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

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

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


On cross-motions for summaryjudgment, the trial court ruled infavor of the park board members,holding that the council actedbeyond the scope of its statutoryauthority. Declaratory judgmentwas entered reinstating the parkboard members.

The town appealed, and theCourt of Appeals reversed, holdingthat the council’s action was per-missible under Indiana’s HomeRule Act. The court observed thatunder the Act, a local unit of gov-ernment is presumed to possessbroad powers unless the IndianaConstitution or a statute expresslydenies a power or grants it toanother political subdivision. It rea-soned that the council did not needexpress statutory authorization toabolish the parks board because anyact that is not prohibited is allowed.The court also found that abolish-ing the board did not “impos[e]duties on another political subdivi-sion” because the council dissolvedthe department rather than assign-ing it obligatory tasks and func-tions. Finding the town had actedwithin its authority, the court con-cluded that park board memberswere not entitled to reinstatementor other injunctive relief.

Dismissal of nursing student for professional misconduct

An academic institution didnot violate a student’s contractualor due process rights by dismissing

NED P. MASBAUM, M.D.Board Certified Forensic Psychiatrist Web site: www.FORNPSYCH.com

• CONSULTATION

• EVALUATION

• EXPERT WITNESS TESTIMONY

• RECORD REVIEW

• CIVIL

• CRIMINAL

• WORLDWIDE AVAILABILITY

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

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 39

in denying her motion for directedverdict.

The court also held that thestudent’s meaningful post-depriva-tion remedies foreclosed her dueprocess challenges under both stateand federal law, even if she had afederally protected right in her con-tinued education. Rejecting the stu-dent’s remaining challenges to thejudgment, the Court of Appealsaffirmed.

TRANSFER ORDERS

The Indiana Supreme Court’stransfer disposition lists can befound at www.in.gov/judiciary/opinions/transfers/index.html:

• American Cold Storage v. Cityof Boonville, 977 N.E.2d 19 (Ind. Ct. App. 2012) (whether trial courterred in dismissing annexationremonstrance for lack of standingwhen it individually counted multi-ple state-owned, tax-exempt parcelscomprising a state road for the

purposes of determining the totalnumber of parcels in the proposedannexation territory rather thanconsidering it a single parcel), on the March 8 transfer list.

• Yost v. Wabash College, 976N.E.2d 724 (Ind. Ct. App. 2012)(whether trial court properly grant-ed summary judgment in favor of defendant college and fraternityin negligence action related toinjuries from alleged hazing incident), on the March 8 transfer list.

• In re the Matter of theAdoption of Minor Children C.B.M.and C.R.M., 979 N.E.2d 174 (Ind.Ct. App. 2012) (whether trialcourt’s denial of birth mother’spetition to set aside adoption onbasis that state’s consent to adop-tion of children during pendency of mother’s appeal of a terminationorder without providing notice toher was arbitrary and capricious),on the March 8 transfer list.

• Johnson v. Johnson, 979N.E.2d 718 (Ind. Ct. App. 2012)(whether trial court properly modi-fied Father’s financial obligationsand parenting time, determined theuninsured health-care expenses heowed, and declined to modify anagreement between the divorcedparents addressing college expens-es), on the March 15 transfer list.

• Mitchell v. 10th and TheBypass, LLC, 973 N.E.2d 606 (Ind.Ct. App. 2012) (whether trial courthad authority to consider new evi-dence and revise interlocutorysummary judgment and whetherfact question precluded summaryjudgment as to individual’s person-al liability under the responsiblecorporate officer doctrine), on theMarch 28 transfer list.

• Justice v. American FamilyMut. Ins. Co., 971 N.E.2d 1236(Ind. Ct. App. 2012) (whetherautomobile insurance policyrequired the insured’s damages orthe policy’s underinsured motoristliability limits to be reduced by theworker’s compensation benefitsthat the insured received followinghis accident with an underinsuredmotorist), on the March 28 transferlist. �D. Lucetta Pope of Faegre Baker Daniels’South Bend office represents large corpo-rations, small businesses, governmentbodies and other entities in civil litiga-tion, focusing on class actions andappeals. She is a graduate of PrincetonUniversity and Stanford Law School.Contact Lucetta at 574/239-1904.

Ryan G. Milligan of Faegre BakerDaniels’ South Bend office is a member of both its litigation & advocacy andfinance & restructuring groups. While attending Notre Dame Law School, he served as an extern for Chief JudgeRobert Miller Jr. in the U.S. DistrictCourt for the Northern District ofIndiana. Prior to joining the firm, Ryan spent several years as president of a small business that received nationalrecognition as one of the industry’s 100 best operations. Contact Ryan at 574/239-1905.



RG 06.13_RG 09.05 6/19/13 9:16 AM Page 40

In March, the Indiana SupremeCourt issued opinions in threecriminal cases, while the Court

of Appeals addressed probation and parole Internet restrictions,warrantless use of parcel wires, and ineffective assistance of counselclaims.

Aggravating sentences based on elements of offenses dismissed pursuant to guilty plea

A trial court cannot aggravate asentence in order to compensate forhis or her disagreement with a juryverdict. Hammons v. State, 493N.E.2d 1250 (Ind. 1986). But afterBethea v. State, 983 N.E.2d 1134(Ind. 2013), judges can now aggra-vate sentences using elements orfacts from charges that are dis-missed pursuant to plea agree-ments. In so holding, the IndianaSupreme Court overruled a longline of cases applying Hammonsto guilty pleas.

A guilty plea is a contractbetween the parties, and unless the plea agreement limits what evi-dence can be presented as aggrava-tors or mitigators at sentencing, the trial judge “may consider allevidence properly before him.”Bethea, 983 N.E.2d at 1146. In thiscase, the trial court’s use of the vic-tim’s injury as an aggravating factorwas proper even though the injurywas an element of one of thecharges that was dismissed pur-suant to Bethea’s plea agreement.

Defendant did not waive illegalconsecutive sentence claim

In Crider v. State, 984 N.E.2d618 (Ind. 2013), the IndianaSupreme Court held that a waiverof the right to appeal contained in a plea agreement is unenforceablewhere the sentence imposed is contrary to law and the defendantdid not bargain for the sentence.Absent due process concerns to the

contrary, when a defendant explic-itly agrees to a particular sentenceor a specific method of impositionof sentences, whether or not thesentence or method is authorizedby law, he cannot later appeal suchsentence on the ground that it isillegal. See Lee v. State, 816 N.E.2d35, 40 (Ind. 2004).

But in this case, the plea agree-ment Crider entered into did notprovide for an illegal sentence, soCrider “was entitled to presumethat trial court would sentence himin accordance with the law. Crider’swaiver of appeal in his plea agree-ment therefore applied only to sen-tences imposed in accordance withthe law. Because the law does notpermit the imposition of consecu-tive habitual offender sentences andCrider did not agree to consecutivehabitual offender enhancements,his waiver of appeal is thus invalidand his habitual offender sentencesmust be ordered to run concurrent-ly.” Crider, 984 N.E.2d at 625.

Self-incrimination – prosecutorcannot request use immunitybefore filing charges

Where no charges have beenfiled and no grand jury has beenconvened, a prosecutor may sub-poena witnesses pursuant to Ind.Code §33-39-1-4. However, if thosewitnesses invoke their constitution-al right against self-incrimination,the prosecutor cannot petition foruse immunity and compel them to testify without first filing chargesor convening a grand jury. See In reS.H., 984 N.E.2d 630 (Ind. 2013).In S.H., the Supreme Court disap-proved of any contradictory lan-guage in In re Order for Indiana BellTelephone to Disclose Records, 274Ind. 131, 409 N.E.2d 1089 (1980),which involved a subpoena ducestecum to a non-party, not the targetof the prosecutor’s investigation. Id. at 636.

In this case, soon after S.C.gave birth at home, the father(S.H.) took S.C. and the infant tothe hospital because S.C. was bleed-ing and the infant had multiplepuncture wounds. Id. at 632. Theprosecutor petitioned for subpoe-nas to compel the parents to testifyabout the circumstances of theinfant’s birth, but the trial courtgranted the parents’ motion toquash the subpoenas on FifthAmendment grounds. The trialcourt then erroneously granted theState’s request to grant use immu-nity to the parents and orderedthem to testify. Id. The SupremeCourt reversed the trial court’s ruling and remanded for furtherproceedings.

Probation/parole conditions –social networking

In Harris v. State, 985 N.E.2d767 (Ind. Ct. App. 2013), the Courtof Appeals held that Ind. Code §11-8-8-8(a)(7), which requires disclo-sure of email addresses, instantmessaging and chat room usernames that the sex offender regis-trant uses or intends to use, doesnot impose a burden on registrant’sFirst Amendment freedom to speakanonymously and does not contra-vene his right to free expression asguaranteed by Article 1, Section 9of the Indiana Constitution. Thisregistration requirementdoes not restrict a defen-dant’s ability to use email,“nor does it limit his useof social networking web-sites, instant messaging or chat room platforms.”Id. at 782.

However, the courtalso held that Ind. Code§35-42-4-12, which pro-hibits registered sexoffenders from usingsocial networking web-sites, instant messaging

CRIM

INAL JU

STICE N

OTES 3/13

Probation/parole conditions, other holdingsBy Jack Kenney

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



RG 06.13_RG 09.05 6/19/13 11:47 AM Page 41

services or chat programs that theoffender knows allows a personwho is less than 18 years of age toaccess or use the website or pro-gram, is unconstitutional as appliedto Harris, who is a sexually violentpredator. Though content neutral,the statute is not narrowly tailoredto serve the State’s legitimate

interest in protecting children fromharmful online communications.And the State already criminalizedillicit expression with minors under child solicitation and inap-propriate communication withchild statutes. See Doe v. MarionCounty Prosecutor, 705 F.3d 694(7th Cir. 2013). The State failed

to show that the social networkingmedium possessed qualities allow-ing the Court to conclude that thesubstantive evil contemplated byInd. Code §35-42-4-12 was createdby the medium itself, which wouldjustify a complete ban on expres-sion. Harris, 985 N.E.2d at 880.

The court reversed Harris’ sex offender Internet offense butaffirmed his conviction for failureto register as a sex offender. JudgeCrone, concurring in result with a separate opinion, noted that inDoe, the Seventh Circuit found Ind.Code §35-42-4-12 unconstitutionalon its face and the protections ofIndiana Constitution Article 1,Section 9 “are at least equal to if not greater than those of the FirstAmendment.” Id. at 785-86.

Warrantless use of parcel wire inside home violated Fourth Amendment

In State v. Lagrone, 985 N.E.2d66 (Ind. Ct. App. 2013), police violated the Fourth Amendmentprotections against unreasonablesearch and seizure when they used a parcel wire to monitor a packageof marijuana once Lagrone had carried it into his home. Due tothat violation, warrantless entryinto Lagrone’s home was not justi-fied under the exigent circum-stances exception to the FourthAmendment because underKentucky v. King, 131 S.Ct. 1849(2011), such entry to preventdestruction of evidence is allowedonly where the police did not createthe exigency by engaging in con-duct that violates the FourthAmendment.

The installation of the GPSdevice and the parcel wire into thepackage Lagrone picked up from a hotel did not violate the FourthAmendment because any privacyinterest Lagrone had in the packagewas lost when United Parcel Service(UPS) opened the package on its

CRIMINAL JUSTICE NOTES 3/13 continued from page 41


FLORIDA LOCAL COUNSELPlaintiff or Defendant

Ron A. Hobgood, Esq.Former senior partner with Kightlinger & GrayAdmitted Indiana 1971Admitted Florida 1975Active trial practice in central and west coastof Florida since 1994Certified mediator/arbitrator since 1992Board Certified Civil Trial Advocate by the NationalBoard of Trial Advocacy, a Florida Bar Approved AgencyMulti-Million Dollar Advocates Forum member

813-368-4593 tel813-289-4334 fax

[email protected]

The hiring of a lawyer is animportant decision thatshould not be based solelyupon advertisements.Before you decide, ask me tosend you free writteninformation about myqualifications and experience.

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 42

premises. State v. Lagrone, 985N.E.2d at 73 (citing Illinois v.Andreas, 463 U.S. 765 (1983)). Nordid police monitoring of the GPSdevice to track the package en routeto Lagrone’s home violate theFourth Amendment because offi-cers also tracked Lagrone on thehighway visually. Id. But the moni-toring of the parcel wire to deter-mine when the package was openedconstituted a search of Lagrone’shome. Id. at 74 (United States v.Karo, 468 U.S. 705 (1984)). Andinformation obtained from the par-cel wire after the package was insideLagrone’s home, i.e., that the pack-age had been opened, could nothave been observed from outsidethe home. As such, the receipt ofthat information via the parcel wire without a warrant violatedLagrone’s Fourth Amendmentrights. Id. at 75. And under Kingthe police cannot use the exigent

circumstances exception to justify a forced warrantless entry into the home, based on the electronicsignal from the parcel wire locatedinside the home, without havingfirst obtained a warrant.” Id. at 75-76.

Ineffective assistance of counsel– failure to object to 404(b) evidence & incorrect advice re: maximum possible sentence

In March, the Court of Appealsreversed two convictions after find-ing ineffective assistance of trialcounsel. In Williams v. State, 983N.E.2d 661 (Ind. Ct. App. 2013),the court found fundamental errorfrom trial counsel’s failure to objectto the admission of Williams’ priorcriminal acts, which the State usedto argue Williams was predisposedto commit the charged crimes. The jury also heard about Williams’possession of heroin, guns and a


stolen taser when he was on homedetention. Id. at 666.

Similarly, in Scott v. State, 986N.E.2d 292 (Ind. Ct. App. 2013),the defendant received ineffectiveassistance where counsel incorrectlyadvised him that the maximumsentence he could receive for oper-ating a vehicle with a BAC of atleast .18 g/dl causing death andresisting law enforcement causingdeath was 30 years of incarceration.Scott established prejudice becausetrial counsel’s failure to inform himof the correct maximum sentenceof 23 rather than 30 years renderedhis plea unintelligent. Id. at 296.Thus, the court reversed the denialof Scott’s petition for post-convic-tion relief and remanded withinstructions to impose a 23-yearexecuted sentence. Id. �

Great Benefits. Case Closed.

Show your support for Indiana State Bar Association and get

1.25 MILES FOR EVERY $1 SPENT!

Credit approval required. Terms and conditions apply. Offered by CapitalOne, N.A.. © 2012 Capital One.

The Indiana State Bar Association has partnered with Capital One® to offer you three credit card options to fit your needs. Choose a card that earns you great rewards, one with a low introductory APR or another to help build your credit. Plus, you can choose an image for your card that highlights your support for ISBA. Apply today!

www.creditcard.inbar.org

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 43


LONG-TERM DISABILITY. Attorney

Charles A. Carlock seeks referrals

on claims for long-term disability

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

or 866/573-5283.

INDIANAPOLIS IMMIGRATION attorney

seeks professional or co-counsel posi-

tions with Indiana attorneys in the prac-

tice of immigration law. Over 25 years’

experience in immigration. Will handle

adjustment of status, change of status,

labor certificates and other matters.

Also, will attend interviews at Indianap-

olis Immigration Office. Thomas R.

Ruge, Lewis & Kappes, P.C., 317/

639-1210, [email protected]

FLORIDA ANCILLARY PROBATE

in most counties. Call collect, Pavese

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

Gennaro, 4635 S. Del Prado Blvd.,

Cape Coral, FL 33904.

EMPLOYMENT LITIGATION

Indianapolis area attorney available

for referrals and co-counsel affiliations

on wide range of employment matters.

25+ years of experience representing

businesses and employees. Robert S.

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

317/844-8372.

LOCAL COUNSEL, southwestern

Indiana. Vanderburgh, Posey, Gibson,

Pike, Dubois, Warrick, Spencer, Perry,

Knox, Daviess. Circuit/Superior Court,

Bankruptcy/District Court, Sheriff Sales,

Settlement Conferences. Erin Berger,

812/250-6744, [email protected]

APPEALS, BRIEFS & PCR. Attorney,

experienced in appellate advocacy and

post-conviction relief, seeks referrals

for civil and criminal appeals or PCR

representation. I am also available for

trial-level research and writing, including

summary judgment memorandums.

John Steinhart, Attorney at Law,

317/721-5178, [email protected]

CALIFORNIA LAWYER since 1966.

AV-rated. Member, ISBA. Father and

brother practiced many years in Marion.

Enjoys interacting with Indiana lawyers.

Handles transactions, ancillary probates

and general and complex litigation

in all California state and federal

courts. Law Offices of John R.

Browne III, a Professional Corporation,

50 California St., Suite 3500,

San Francisco, CA 94111; tel.,

415/421-6700; fax, 415/398-2438;

email, [email protected];

www.jbrownelaw.com

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

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

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

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

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

SOCIAL SECURITY DISABILITY –Soultana S. Myers, Myers Hockemeyer& McNagny, LLP, 116 N. Chauncey St.,Columbia City, IN 46725. AcceptingSocial Security disability clients in northern Indiana. Member of NationalOrganization of Social SecurityClaimants’ Representatives. Toll-free: 888/248-2224.

SpecialServices

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

EmploymentOpportunities

ESTABLISHED AV-RATED law firm withoffices in Bloomington and Indianapolisseeks an attorney with a minimum of 5 years’ experience in family law litiga-tion to be based primarily in Indianapolisoffice. Candidate must have a positiveattitude, courtroom experience, and ademonstrated ability to generate newwork. The firm offers an exciting workenvironment, free on-site parking, andbenefits. Compensation and perfor-mance-based bonus plan dependentupon qualifications and experience.Email resumes to Geoff Grodner [email protected].

WANTED: Sole practitioner interested insharing office space in Class A Buildingin Carmel. All services provided with anassociation of attorneys with an overflowof business. Terms negotiable. Pleasesend résumé to Res Gestae, Box031301, Indiana State Bar Association,One Indiana Square, Suite 530,Indianapolis, IN 46204.

Employment Desired

EXPERIENCED LABOR LAWYER available. Very experienced labor lawyer is available for contract work,consulting and working as co-counsel.Considerable experience in all aspects of labor law. Union elections, NLRB andfederal court litigation, ERISA litigation,contract negotiations and arbitration mat-ters. Was selected as one of the top 100 labor lawyers by the LaborRelations Institute. Free telephone counseling. Recent win in union election,51-2. Also knowledgeable in employ-ment law. Bruce F. Mills, Ph.D., J.D., ph. 317/826-0970, email:[email protected].

ATTORNEY WITH 22 YEARS of legal experience, primarily in Indiana.Seasoned attorney, applying exceptionalattention to detail, will perform overflowwork; pretrial research, writing, memo-randums and analysis; document review;and summary judgment memorandums.Additionally proficient in grammar,spelling and proofreading. Susan F.Castner, Attorney at Law, 513/571-5853.

CLASSIFIEDS

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 44


APPRAISALSStamp & Coin Collections

30 Years ExperienceKnight Coin & Stamp

237 Main St., Hobart, IN 46342

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

A.N.A. Life Member No. 867

600+ appeals30+ years experience

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

Anderson, IN 46015

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

David W. Stone IV Cynthia A. EggertAttorney Paralegal

STOCKBROKER/SECURITIES FRAUD.Former Indiana Securities Commission-er who works with investors and attor-neys in brokerage disputes. Availablefor referrals, consulting, co-counsel orexpert witness affiliations. No charge for initial evaluations. Maddox, Hargett & Caruso, Mark E. Maddox,317/598-2040, 800/505-5515.

OSHA SAFETY EXPERT WITNESS in construction and industry accidents.U.S. Dept. of Labor Authorized Trainer.Former OSHA inspector. OSHA Safety Expert, Inc., contact Wendell Rust toll-free at 877/544-4323, email:[email protected]

PRESCRIPTION ERRORS. Pharmacistattorney will consult, assist in casepreparation, depositions and medicalresearch or as co-counsel. Dennis L.Rorick, RPh., J.D., 260/351-4801.

COAL, OIL, GAS – Leases, Surface Use Agreements, Title Opinions, Due Diligence, Royalty Determination. Hugh R. Hunt, Attorney at Law, 10 N.Court St., Sullivan, IN 47882; phone,812/241-1480.

FORENSIC HANDWRITING EXPERT –Examination of questioned documentsfor handwriting, typewriting, alterations,photocopy identification, paper/ink and related issues. Former ChiefDocument Examiner, Indiana StatePolice, 28 years, retired. Clarke MercerForensic Laboratory, Ltd., ClarkeMercer, 772 S. 850 E., Greenfield, IN 46140, [email protected],317-696-2848. See display ad at p. 18.Résumé available.

PublicationsFor Sale

WESTLAW publications, Indiana Cases,Vols. 200-759, covers period 1964-2003, 228 volumes in excellent condi-tion. WESTLAW values set at $14,000,will accept reasonable offer. Send offersand inquiries to [email protected],tel., 812/334-1100, Bloomington, Ind.,Zinman Law Offices.

239.254.2900 hahnlaw.com

Florida Estate Planning & Probate

BRAD A . GALBRAITH

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

Miscellaneous

1945 COMPOSITE PICTURE of lawyersand judges. Well framed under glass a44" x 30" composite of pictures of over180 Indiana lawyers and judges fromthroughout the state plus 98 pastlawyers. In addition, included areGovernor Gates, the members of theSupreme Court and Court of Appeals,the Attorney General and 7-man staff.Also, all the past presidents of the barassociation starting with BenjaminHarrison and the Federal bench and US attorneys are included. $500; call 260/925-2880 and leave word.

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

PRIME LOCATION! Just one block fromthe City-County Building and two blocksfrom the Federal Courthouse, this avail-able office and the in-suite conferencerooms are perfect for any solo attorneylooking for nice accommodations in theheart of downtown Indy, without break-ing the bank. Surrounded by parkinggarages and the best eateries, optionsstart at $1,000 per month. Call MichaelHead, 317/608-0798.

PRIME OFFICE SPACE – Zionsville.Established practitioner looking to sharehighly visible office space. Call MichaelAndreoli, 317/873-6266, ext. 1.

MEDIATION TRAINING: Certified 40-hour Domestic Relations MediationCourse, Sept. 19-23, 2013, Fort Wayne.This course sells out – only 3 seats left!To register: 260/483-7660 orwww.JanetMitchellMediator.com.

Florida Ancillary Probate – All CountiesPrivate practice limited to

Ancillary & Summary AdministrationReasonable Fees & Prompt Service

David L. PuckettFort Myers, FL & Anderson, IN

239.217.6269 (Office) • 765.620.8443 (Cell)[email protected]

Classified word ads:

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

ISBA members40¢ per word, $10 minimum

Nonmembers60¢ per word, $15 minimum

Addresschanges,

email or postal?

Contact Kevin:[email protected]/266-2581

RG 06.13_RG 09.05 6/24/13 9:16 AM Page 45

FAIR COMMEN

TThe office mascot: taking the dog to work

By Donna J. Bays and Jessica L. Mayflower

Family law comes with a lot of heartbrokenclients, steeped in tears and anger. Emotionalflooding can make it hard to focus on mental

tasks or make decisions. As their attorney, it’s my job todo what I can to help clients navigate the legal processand achieve the best outcome. How to do this? One ofour solutions to this problem is unexpectedly hairy.

First came our accidental successWhen my daughter, Jennifer Bays Beinart, gradu-

ated from law school, she wanted a dog. Her gradua-tion gift was a 14-pound Rat Terriernamed GideonWainwright. I always thoughtpets were forbiddenin business offices,but we knew leavinghim for long hourswouldn’t be goodfor him. So, whenJennifer joined thefirm, Gideon came,too.

At first, I was apprehensive. Gideon wasn’t fullytrained yet, and I feared he might distress clients whenthey came to the office. But Gideon quickly assimilatedto the office atmosphere, and we grew used to havinghim around.

For several months, we kept him away from clientsfor fear that they would react negatively. After all, having pets in the office was unprofessional, right?

Yet, occasionally, a client would catch sight ofGideon through an open doorway. I was surprised by how many asked if they could pet him. Gradually,we stopped hiding Gideon from visitors. He broughtsmiles to tear-soaked faces in our waiting area. Even themailman grew fond of him.

Seeing that success, I began to yearn for my ownfurry friend. I sought out rescue dogs for weeks andfinally found 2-year-old Mordecai. Although unsure of his breed, I can report he’s small, white and fluffy.

Then we tested the theoryFrom day one, Mordecai came to work with me.

No matter what, he always looks sweet and playful –my assistant says he looks like a whiteteddy bear. I knew when I first met himthat he was made to warm hearts.

Dogs are a great boost to mental health. They offercomfort in hospice and psychiatric wards and even tailafter PTSD patients as service animals.1 I reasoned: If aGreat Dane can calm a traumatized soldier, then whycan’t my little tail-wagger comfort family law clients?

New clients are asked how they feel about havingMordecai in the room. Most clients happily accept thecompany of abeaming Mordecai.When I meet withthe rare client whois uncomfortablewith dogs, my assis-tant doesn’t mindwatching him. Infact, I think shesecretly loves it. He brings a smile to her face, too.

Somehow,Mordecai justknows when clients need to pet him and when heshould give them some space. I’ve trained him to go tothe dog bed behind my desk when he needs a timeout.Most of the time, he is 12 pounds of friendly fluff, a happy face bringing comfort and peace to clients.

And now it is your turnThere is a whole world of research out there about

the positive effects of pets. The CDC reported that a petcan lower blood pressure, cholesterol and triglyceridelevels, and feelings of loneliness.2 Those are side effectsI do not mind having.

As a long-standing fan of NPR, a recent discussionabout dogs in the workplace caught my attention.3

Apparently, taking Fido to work is a time-honoredstrategy to keep office stress at a minimum. It is alsoknown to keep dog owners content, not that I wouldknow anything about that.

If you have a people-friendly dog, try bringingyour pooch to the office, especially if you work withemotional clients. You will be surprised at how much a difference it will make to your clientele, your staff,and your dog. �1. http://www.cnn.com/2012/08/01/health/mental-health-service-dogs

2. http://www.cdc.gov/healthypets/health_benefits.htm

3. http://www.npr.org/blogs/health/2012/03/30/149684409/take-your-dog-to-the-office-and-stress-less


Bays Family LawZionsville, Ind.

www.baysfamilylaw.com

RG 06.13_RG 09.05 6/19/13 9:16 AM Page 46

Introducing Data Breach Liability Coverage from Brown & Brown

From cyber theft to employee error, the dangers have never been greater for sensitive, personal information to be exposed—asituation that leaves your company unprotected. At particular risk are professional services, retail outlets that take credit cards,healthcare providers, web based retailers, and literally anyone who has access to private information about their clients,customers or patients.

• Data Breach is the fastest growing crime in America.

• The cost to mitigate damages can run into the millions, with the average being $120-$300 per compromised record!

• Repairing the damage to your company's public image is also extremely expensive.

• You may have to provide ongoing credit monitoring to your customers and employees to give them further peace of mind.

The ISBA Insurance Agency, Brown & Brown Insurance, is prepared to create a program that provides protection for both first andthird party liability—at a cost that is not only competitive, but well below the potential expense should you experience a breach.

Call us today to see how we can protect you through a program that iscustom-designed to your specific needs and risks:

(877) 647-2242

Call Ritman for a free risk analysis of your business owner’s and worker’s comp policies.

800.581.8810 www.ritmanassoc.comENDORSED BY:

Insurance for Lawyers

Photo credit: Africa 2012 - Jennifer Ritman, Andrew Brinkworth

Premiums have you in an uproar?

Documents

Res Gestae - June 2013