res gestae - jan/feb 2014

January/February 2014 Vol. 57, No. 6

EDITORSusan J. Ferrer

[email protected]

GRAPHIC DESIGNERVincent Morretino

[email protected]

ADVERTISINGKim Latimore

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Joseph M. PellicciottiWilliam A. Ramsey

[email protected]

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

19 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

32 RECENT DECISIONS 10/13Maggie L. Smith and Emily K. Cremeans, Indianapolis

35 WORDWISEProf. Joan Ruhtenberg, Indianapolis

41 CRIMINAL JUSTICE NOTES 10/13Prof. Joel M. Schumm, Indianapolis

46 FAIR COMMENTStephen M. Terrell, 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.

©2014 by the Indiana State Bar Association. All rights reserved. Reproduction by any method in whole or in part without permission is prohibited. Opinions expressed by bylined articles are those of the authors and not necessarily those of the ISBA or its members. Publication of advertisements is not an implied or direct endorsement of any product or service offered.

The Journal of the Indiana State Bar Association

RES GESTÆJanuary/February 2014 Vol. 57, No. 6

D E PA R T M E N T S10 STATE OF THE JUDICIARY

19 RULE 1.8 CONFLICTS

RES GESTÆ • JANUARY/FEBRUARY 2014 3

F E AT U R E S

8 LDA: TOWARD UNDERSTANDING ‘SERVANT LEADERSHIP’By Bill Brooks, Indianapolis

10 WHAT WE CAN ACCOMPLISH TOGETHERBy Chief Justice of Indiana Brent E. Dickson, Indianapolis

7 NEWS 26-30 BENCH-BAR SYMPOSIUM 38 TECHNOLOGY

Cover photo of the Indiana Statehouse Rotunda by Vincent Morretino

28 LEGAL EDUCATION

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As I mentioned recently in Res Gestae,I am an Aaron Sorkin fan. Of course,by definition this means that I am a

West Wing fan as well. In season 2, episode 10,Leo McGarry shares the following story withJosh Lyman, as it is clear that Josh is strug-gling with post-traumatic stress following arecent assassination attempt on the presidentwhere Josh was wounded:

This guy’s walking down a street when he falls in a hole. The walls are so steep he can’t get out. A doctor passes by, and the guy shouts up,“Hey, you, can you help me out?” The doctorwrites a prescription, throws it down the holeand moves on. Then a priest comes along, andthe guy shouts up, “Father, I’m down in thishole – can you help me out?” The priest writesout a prayer, throws it down the hole and moveson. Then a friend walks by. “Hey, Joe, it’s me!Can you help me out?” And the friend jumps in the hole. Our guy says, “Are you stupid? Nowwe’re both down here.” The friend says, “Yeah,but I’ve been down here before, and I know theway out.”

While this parable speaks of friendship, it also speaks of compassion and support forthose who are struggling by those who havebeen there before. Those friends are hard tofind, but lawyers in Indiana have such a friendin the Judges & Lawyers Assistance Program(JLAP) administered by the Indiana SupremeCourt.

In its most basic form, JLAP is a networkof peer support provided by dedicated volun-teers – both recovering and non-recovering –who assist judges, attorneys and law studentsin their struggle with physical or mental dis-abilities that result from disease, chemicaldependency, mental health problems or agethat may impair their ability to practice in acompetent and professional manner. The helpoffered varies with an individual’s needs or aparticular case, but ranges from informationand referral to assistance with the organiza-tion of an intervention. The program’s workis confidential under Rule 8.3(d) of theIndiana Rules of Professional Conduct andRule 31 of the Indiana Rules of Admission &Discipline.

Why is JLAP necessary? Well, to be blunt,lawyers struggle more with these issues thanmembers of the general population:

• Data from the Centers for DiseaseControl & Prevention shows that lawyers rankfourth in proportion of suicides by profession;

• According to the American PsychologicalAssociation, lawyers are 3.6 times more likelyto suffer from depression than the generalpopulation;

• While it is estimated that 10 percent ofthe general population is addicted to alcoholor other drugs, the estimate for attorneys is as high as 18-20 percent.

In addition, as the legal profession beginsto see the “Baby Boomers” move towardretirement, age-related infirmities continue tobecome more prevalent, and lawyer assistanceprograms across the country are seeing morecases of such disabilities.

So, what does this mean to you? It is quitepossible that you or someone you know maybenefit from talking to a JLAP volunteer. You do not need to make a diagnosis or confront someone who you think needs help.Rather, you can find information about theprogram and how to contact it at www.in.gov/judiciary/ijlap. Use that information to edu-cate yourself or someone else about whatJLAP can do to help.

If JLAP can provide assistance, make thecall. It may seem difficult to take that step onbehalf of yourself or a lawyer you know thatneeds help. I know it is because I have madethe call myself onbehalf of a lawyerwho needed help.Yet, let the friendsfrom JLAP jumpin that hole andhelp guide themout. It is whatfriends do. �

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

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

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

OFFICERSPresident James Dimos, Indianapolis

President-Elect Jeff R. Hawkins, Sullivan

Vice President Carol M. Adinamis, Carmel

Secretary Robyn M. Rucker, Valparaiso

Treasurer Hon. Susan Orr Henderson,Covington

Counsel Steven M. Badger,to the President Indianapolis

BOARD OF GOVERNORS1st District Scott E. Yahne, Munster

2nd District Todd A. Etzler, Valparaiso

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

4th District Martin E. Seifert, Fort Wayne

5th District Candace D. Armstrong, Brook

6th District John A. Conlon, Noblesville

7th District Seth M. Lahn, Bloomington

8th District Angela L. Freel, Evansville

9th District J. Todd Spurgeon, New Albany

10th District Wilford A. Hahn, Huntington

11th District Clayton C. Miller, Indianapolis

11th District Tonya J. Bond, Indianapolis

11th District Terry W. Tolliver, Indianapolis

Past President Daniel B. Vinovich, Highland

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

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

Young Lawyers Anthony M. Rose, South Bend,Section Chair

STAFFExecutive Director

Thomas A. Pyrz • [email protected]

Administrative AssistantBarbara 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 • JANUARY/FEBRUARY 2014 5

PRESIDENT’S PERSPECTIVEJIM DIMOS

[email protected]

You’ve got a friend

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Board vacanciesannounced

Any lawyer member of theIndiana State Bar who desires

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

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

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

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

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

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

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

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

District 11, representing MarionCounty, one position.

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

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

SCOTUS admissionapps being accepted

Your Association makesarrangements for the admis-

sion ceremony, a breakfast, a grouppicture and a tour of the facility.The next group swearing-in cere-mony for Hoosier lawyers is sched-uled for April 1. Our group will getto observe an oral argument beforethe Court on that day.

It is assumed that all applica-tions will be approved. If you havea disciplinary action pending orhave had a confirmed disciplinaryaction in the past, the U.S. justicesmay deny or delay your application.The ISBA cannot be held responsi-ble for any cost you may incur in arranging for travel to the ceremony if this should happen.

Each attorney is encouraged to make his or her own travel andhotel arrangements. The cost forthe application is $200, and there isan additional cost of approximately$40 for a group picture and break-fast in one of the Court’s diningrooms. Return your applicationalong with a certificate of goodstanding from the Indiana SupremeCourt to the Indiana State BarAssociation, Attn: Susan Jacobs,One Indiana Square, Suite 530,Indianapolis, IN 46204 no laterthan Feb. 25. At this time, do not send any payment. For an application, contact the ISBA, [email protected] or 800/266-2581. �

LETTERLegislation ‘has merit’Dear Editor:

Thank you for the quality of Res Gestae. In regard to the letter from Prof. Boyne, November 2013 edition, as to the bar’s position or lack of one as to homosexual mar-riage, her accusation of cowardice is both offensive and unfair.

No lawyer I know condones the slur made against Prof. Boyne.She need make none toward thosewith whom she disagrees.

Until the recent past, it wasunnecessary to define marriage asmale to female at all. The traditionsof humanity are venerable and clear.Marriage is for procreation.

Sexual expression, God given asthose of us who believe, is a blessingfor procreation. It has no place inlegislation to begin with.

The issue of homosexual mar-riage is new, relatively. My opinionis it is born of that phenomenon ofthe Sixties the late Prof. James Q.Wilson labeled hard to define, stem-ming “so far as I can tell,” he wrote,“from the moment society decidedto abandon self control as a stan-dard by which we should live.”

The legislation pending hasmerit, to me, in that it permits ourcitizenry, not our courts, to decidewhere we stand as a state on this cultural & religious matter.

Nothing in the Bible, the tradi-tional, premier source of behaviorfor Indiana, upholds the practicesProf. Boyne holds dear. No vote will change that. We are to love her,but we are not to agree with Prof.Boyne, nor stand idle as our citadelsare torn asunder.

Sincerely,

Gregory W. BlackPlainfield, [email protected]


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Twenty-five young-ishlawyers converged uponFort Harrison State Park

in late January, eagerly ready tobegin a five-month journey towarda full understanding of the idea of“servant leadership” along a pathknown as the Indiana State BarAssociation’s LeadershipDevelopment Academy.

The opening retreat of thethird annual academy, titled “21stCentury Leaders: Engage, Equipand Empower,” spotlighted a seriesof mental exercises concocted byPat Heiny & Mary Jo Clark ofContemporary Consulting.

Also in the spotlight wasJustice Mark Massa of the IndianaSupreme Court, who started thefirst full day of the three-day eventby encouraging the 25 lawyers to be community leaders. He said thathe never fully understood the lawschool phrase, “think like a lawyer,”until he served on communityboards.

“It was the lawyers who got tothe heart of the matter, who sepa-rated the wheat from the chaff,” he said. “You can tell who are thelawyers. They are the most focused;they are the ones who keep the con-versation going in the right direc-tion.”

For most of the retreat, it wasHeiny and Clark in charge of direc-tion. Heiny pointed out that the purpose of the LeadershipDevelopment Academy was not to lengthen the participants’ work-weeks by teaching them to volun-teer. “We’re not here to increaseyour obligations,” she said, “but tomake you more efficient” when youundertake new challenges.

To get the lessongoing, the attorneyshad been given a chal-lenge on evening one

of the retreat. Divided into sixteams, they were asked to come upwith a creative way to introduceeach member to the entire group.Creativity abounded, more or less –through such vessels as mock televi-sion shows of “Socratic Jeopardy”and “The Dating Game,” and a vignette involving a motoristpicking up hitchhikers.

The performances let the attor-neys know that among them were a trained mime who loved to readzombie books, someone who oncemet the 22-ounce steak challenge ina Texas restaurant, a Hawaii native,a South Dakotan, a roller derby girlwho “may or may not be on herway to becoming a crazy cat lady”and two accomplished horse-women. Also in their company – a Fort Ouiatenon reenactor, a skilled Goodwill shopper and anurban farmer from Salt Lake City.

That exercise and others weregeared not only to help the acade-my students bond with each other,but also to teach them the need forpeople to know each other’s stories.

“Most people’s learning stylerequires getting to know peoplefirst,” Clark said, noting that step’simportance in the committee struc-ture. She urged people to spendthat required time building rela-tionships before moving on to thetask at hand. “Eighty percent of thetime should be spent that way,” shesaid, “and 20 percent on the task.”Jump ahead directly to the task,Clark warned, and you’ll regret it.“If you don’t do the relationship-building, the rest of it won’t comeeasily.” Getting to know eachother’s stories, she emphasized,“will take you to another level ofunderstanding.”

Added Heiny, “Whether you’re in charge or not, you have a responsibility to make people feelpart of the group.”

For the academy students, theprocess included identifying peoplewho had been most important intheir lives – a task that producedsome non-stereotypical responses.For one, it was his in-laws, neitherof whom had college degrees butwere both very successful in life.“They taught me you don’t have to have advanced college degrees to have wisdom or innate knowl-edge of the workings of the world,”he said.

For another, it was the wifewho stood behind him through lawschool – and then through his con-siderable struggles passing the barexam. Another student cited hermore veteran colleague “who hadno problem telling you when youwere right or when you werewrong.” Another cited her twodaughters, especially one who diedat the age of seven weeks. “She hadsuch an impact and is having animpact now,” the attorney said.“She taught me to be strong, to becourageous, to serve a purpose.”

The retreat began on aThursday evening with dinner at the home of former IndianaSupreme Court Justice FrankSullivan and ended with a discus-sion of how 21st century leaders set direction and vision. The classspent several hours Friday night insmall groups, discussing what theirideal communities would look like,which fed directly into their finaltask: to begin the process of devis-ing what has become an academytradition – a class project. �

ASS

OC

IATI

ON

NEW

SLDA journey: toward understanding ‘servant leadership’

By Bill Brooks

8 RES GESTÆ • JANUARY/FEBRUARY 2014

Media consultantand freelance writerIndianapolis, Ind.

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The 2014 ISBA Leadership Development Academy Class

DANIEL L. ASKRENAttica

GARY T. BANETNew Albany

ELIZABETH J. WYSONG BERGIndianapolis

JAMES R. BLAUFUSSIndianapolis

BRENT R. BORGFishers

REBECCA L. BUITENDORPValparaiso

CYNTHIA V. CARRASCOIndianapolis

LAURA B. CONWAYIndianapolis

DANIEL P. CORYSouth Bend

SARAH B. DAUEREvansville

J. BEAU DIALEvansville

ERICA K. DREWIndianapolis

NOAH L. GAMBILLTerre Haute

AIMEE M. GONGIndianapolis

ANGKA E. HINSHAWIndianapolis

BRANDON M. KIMURAIndianapolis

ROBERT W. KISTLERFort Wayne

ANDREA N. KOCHERTIndianapolis

NICOLETTE E. MENDENHALLIndianapolis

LAURA PAULIndianapolis

BRIANNA J. SCHROEDERIndianapolis

ANDREW L. TEELFort Wayne

EDWARD D. THOMASIndianapolis

LAKESHA D. TRIGGSIndianapolis

VICTORIA R. WOLFSouth Bend

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

This is the occasion to fulfillthe Indiana Constitution’sdirective that the Chief

Justice report to you on “the condition of the courts.” In short,Indiana’s judges are very, very busy;we are extremely challenged butquite gratified every day; we coulddo even better with more resources;we are extremely honored for theprivilege of judicial service; and weare fortunate to have an outstand-ing working relationship with theGeneral Assembly and theExecutive Branch as we partnertogether on various fronts.

This report is going to containa lot of details, but before we do, let me share one of the highlights of this past year from a speechgiven by Justice Massa. He told astory that gives a captivating insightinto the crucial importance of

courts for a productive society.Here is essentially what he said:

A Los Angeles Laker who was cutby his NBA club, signed a one-yearcontract to play in Greece. His dealcalled for $100,000 and a rentedapartment. But early that season, the team started paying only half hissalary. When he consulted his agent,he was told Greek law did not comedown on the side of the laborer until an employer was at least threemonths in arrears. A few monthslater, his landlord tried to evict himbecause the team had not paid hisrent in four months. Not to worry,the team told him, since landlordsthere are powerless to evict untilsomeone is at least six monthsbehind on their rent! By the end of the year, the basketball player was still in his apartment, but theteam still owed him half his salary.He sued; he actually won. The teamappealed, but the player won theappeal. And then he waited. Andwaited. A year after he left Greecewithout his money, the Greek basket-

ball league was facing collapse, so theMinister of Sport forgave the debts of the teams.

This basketball player noted thatmany of the Greeks he met in thesports world and beyond alreadybelieved that their system was so broken that individual effort did notmatter. Think about that – the sys-tem was so broken that individualeffort did not matter! People did notpay their taxes in full or work a com-plete day, and when they were con-fronted with the Greek economy,they just threw up their hands. Theplayer concluded that real changewon’t arrive until anyone who signsup to work in Greece – stockbroker,IMF administrator or basketballplayer – knows that he can count on Greek law for protection.

“Thankfully,” Justice Massasaid, “we still provide that protec-tion here.” And he emphasized thatwhen many people think of the jus-tice system, they think first of thecriminal justice system and the deli-cate balance it maintains betweenliberty and security. But in reality,Indiana’s judiciary is very impor-tant to commerce and the dailypursuits of most of our citizens.You simply cannot have a function-ing free-market economy without afair and open forum with rules andpredictable outcomes where privatecontracts are enforced and disputessettled. Thank you, Justice Massa,for bringing us this spectacularmodern-day example of the crucialrole of the judicial branch and theimportance of the support wereceive from you, the men andwomen of the Indiana GeneralAssembly.

Last year, Indiana’s 318 trialcourts received over 1.6 millionnew case filings (up a fraction of a percent over last year) and con-ducted 1,338 civil and criminal jurytrials. This was accomplished by547 judicial officers (judges, magis-trates, commissioners and referees).Some of them are here today.Would all Indiana trial judges

STATE

OF

THE

JUD

ICIA

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What we can accomplish togetherBy Chief Justice of Indiana Brent E. Dickson


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please stand and allow us to thankyou for your service?

With the beginning of 2014,the Court of Appeals has experi-enced a change in leadership.Completing her term as chief judgeis Margret Robb (the first femaleCourt of Appeals chief judge inIndiana history). She has served herthree-year term with distinction,dedication, innovation and energy.Judge Robb, please stand and let usthank you for your outstanding ser-vice. Her successor is Chief JudgeNancy Vaidik, who will also be agreat chief judge, as we know fromher past work. Judge Vaidik, pleasestand so that we can welcome youto your new position.

During the past year, over2,000 appeals were presented to theCourt of Appeals (one of the high-est volume and most efficientappellate courts in the country).The Indiana Tax Court received 76new cases. And review was soughtin the Supreme Court in just over1,000 cases. Compared to last year,this represents over a 1 percent

increase in new cases for the Courtof Appeals, just over an 8 percentdecrease for the Tax Court, andalmost a 3 percent increase for theSupreme Court.

Among the Supreme Court’sother constitutional responsibili-ties, our State Board of BarExaminers administered two barexams to a total of 866 applicants,of which 631 passed and wereadmitted to the bar. On the lawyerdiscipline side, working with ourattorney Disciplinary Commission,the court imposed various sanc-tions to protect the public. Thisincluded one disbarment and 14lawyer resignations after initiationof a disciplinary investigation.

All the work of Indiana’s whole judicial branch is done at an amaz-ing value to Hoosiers. The judicia-ry, the third branch of Indiana gov-ernment, operates on only 9/10 of 1 percent of the total spending by all Hoosier government units –state, county, local, city, town and township. Just think about it – for every $10 spent by all of

Indiana’s government units lastyear, only 9 cents went to the judi-ciary! And this does not even takeinto consideration the fact thatIndiana’s judicial system itself gen-erates over $205 million in annualrevenue, which is directed to vari-ous state and local purposes. This isequivalent to 55 percent of the totalexpenditures for all of Indiana’sjudiciary.

The bottom line is that ourjudicial system provides enormousvalue to Hoosier citizens – and doesso at a miniscule cost to taxpayers.What a bargain!

But your Indiana judiciary ismore than data and dollars. It is ateam of judicial officials dedicatedto serving Indiana and its citizens.While our primary responsibility isto decide cases, Indiana judges andjustices, and their staffs, have beengoing beyond the call, reaching out,touching and improving lives witha myriad of innovative programs.Here are a few:


Photo by Vincent Morretino

(continued on page 13)

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We have expanded the use of Problem Solving Courts, whichhave proven to be very effective inhelping change the lives of peoplein trouble. Such courts includedrug courts, domestic violencecourts, mental health restorationcourts, community courts, offenderpost-incarceration reentry courts,and veterans’ courts. Already thereare 54 certified Problem SolvingCourts, and 10 more are on theway.

Another initiative made possi-ble by your funding in last year’sbudget is the Adult GuardianshipProgram. As a result, seniors andincapacitated adults in 15 majorcounties are now being served by trained volunteer advocates.

We are also proud of ourexpanding CASA program (Court-Appointed Special Advocates) for abused and neglected children.Programs this past year were startedin five more counties, bringing thetotal to 63 certified programs in 78 counties (where we distributed$2.9 million in matching grants).CASA is made possible by 3,500Indiana volunteers advocating for 16,000 children.

Last year’s legislative sessionalso elected to invest substantialfunds in probation, including offi-cer training, implementation ofeffective practices, and forensicdiversion, which covers a variety of rehabilitative programs and pilotprojects that focus on reducingrepeat offenses, that is, “recidi-vism.” We appreciate the GeneralAssembly’s partnership in theseefforts.

Now in its third year, theCourt’s Mortgage Foreclosure Trial Court Assistance Program hasmoderated over 22,000 conferencesbetween borrowers and lenders,resulting in over 5,000 mortgageforeclosure cases where an agree-ment has enabled the borrower to stay in their home and averted

approximately $200 million in fore-closure losses for homeowners. Wecontinue to be grateful to the Lt.Governor’s Housing & CommunityDevelopment Authority, whosefunding has made this possible.

During the past year, wemerged several of the SupremeCourt’s staff members into a newteam, our Office of Communi-

cation, Education & Outreach, toprovide even better media commu-nication, to further transparency, to enhance public trust and confi-dence, to advance civics educationfor classroom teachers, and to facil-itate greater in-person judicial out-reach to students. As one example,this past year, on Constitution Day,

STATE OF THE JUDICIARY continued from page 11



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44 judges (including several jus-tices) visited 119 classrooms to talkwith over 3,000 students. Anotherfacet of this new team’s efforts –our website – has again won dis-tinction. Thanks to the technicalcompetence and creativity of ourWebmaster, Lindsey Borschel, ourwebsite was named one of 2013’sTop 10 Court Websites by theForum on the Advancement ofCourt Technology.

Justice Robert Rucker is theSupreme Court’s voice in Indiana’seffort to confront the challengesposed by people with LimitedEnglish Proficiency in the Courts.This is an area strongly penetratedby federal regulatory oversight. At the present time, the nationalConference of State CourtAdministrators is working with the Department of Justice to createa satisfactory planning tool forindividual states to use. This is a

delicate prerequisite to any furthersubstantial state programmingefforts because failure to strictlycomply with Department of Justiceexpectations could put at risk sever-al other state programs that rely onfederal funds. Justice Rucker is ontop of this, and we will advance assoon as we can. In the meantime,more and more language transla-tors are being certified.

Thanks to your generous fund-ing and the cooperation of ourpartners, the Department ofCorrection, the Criminal JusticeInstitute, and the Department ofChild Services, the importantJuvenile Detention AlternativesInitiative (JDAI) is now undergoinga huge expansion. Due in large partto the efforts of Justice StevenDavid, JDAI is now operational inthe 19 counties with 56 percent ofIndiana’s court-involved youth. Weare seeing a 44 percent reduction in

juvenile admissions to securedetention, 40 percent reduction in average daily population insecure detention, and 18 percentdrop in youths committed to the Department of Correction, and all with no increase in re-offense rates.

Just as last year, the top priori-ty of your Indiana judicial branch isassuring that all our trial courts areequipped with effective electroniccase management and data sharingtechnology. The 2013 session of theGeneral Assembly was responsiveby restoring a portion of previouslylost funding for trial court technol-ogy upgrades. The bill also estab-lished a Judicial TechnologyOversight Committee, now chairedby Justice Massa. The committee iscomprised of members of all threebranches, the private sector, andcounty clerks. We are very gratefulfor the leadership of SenatePresident Pro Tem David Long andHouse Speaker Brian Bosma, alongwith that of Representatives GregSteuerwald, Kathy Richardson, TimBrown, Steve Braun, Ed DeLaneyand Steve Stemler and SenatorsLuke Kenley, Brandt Hershman,John Broden, Karen Tallian andLonnie Randolph, and we look for-ward to building on this spirit ofcooperation in the years ahead. Inthe meantime, we have been work-ing hard to provide the OdysseyCase Management System to more



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and more of the trial courts thatseek it.

Odyssey has now been imple-mented in 175 courts in 48 countiesand handles essentially 50 percentof all new cases. But to fully benefitfrom Odyssey, and other trial courtcase management systems, it is crit-ical that information can be sharedbetween courts. This data sharing is particularly important in crimi-nal cases, family law and juvenilematters, especially when it relates to some of our most vulnerable citizens – our children. Here’s what can happen. Although a judgein county “A” that is not on theOdyssey system has access to all juvenile cases in their own county, that same judge does not have direct access to any otherjuvenile cases outside county “A.”This means the judge may lackneeded information because there

may be a Child in Need of Services(a “CHINS” case) or a delinquencycase filed in another county.

An enactment last legislativesession directed the Division ofState Court Administration to workto fill this void and to develop thetechnology to “send and receive”court data between Odyssey andanother case management systemsby the end of 2013. This goal hasbeen attained. Working togetherwith the “Quest” system, a casemanagement system used by someof the larger counties to managetheir juvenile cases, we have nowimplemented the exchange of data between Odyssey and Quest.And for the courts not on Odysseyor Quest, we have developed and are making available a separate application that searches both case manage-ment systems.

In another collaborative effort, last year you created theCommission on Improving theStatus of Children in Indiana. This18-member commission includesleadership from all three govern-ment branches that have the abilityto impact the life of a child, andJustice Loretta Rush serves as itsinitial chair. The commission iden-tified priorities and established various task forces (includingmembers from government andnon-governmental stakeholdersthroughout the state) on specificissues such as infant and child mortality, parental substance abuse,child safety, juvenile justice andfoster care reform.

In last year’s State of theJudiciary message, you heard aboutour concern for the unmet legal



RG 01-02.14_RG 09.05 2/10/14 11:11 AM

needs of economically challengedHoosiers. Two weeks ago, at theend of 2013, we did an OdysseyCase Management System data“snapshot” of pending civil law-suits, and the results were prettyshocking. Considering all civilcases, 63 percent of the parties werenot represented by counsel. In fam-ily law cases alone, 60 percent of the litigants did not have a lawyer!

When people are in court with-out a lawyer, bad things happen. It places unrepresented litigantsunder a great disadvantage and isalmost always detrimental to theirinterests; it deprives judges fromreceiving all the information theyneed to make just and fair judicialrulings; and it clogs court docketsand delays justice for all courtusers.

To meet this challenge, Indianalawyers are stepping up to the plateto provide even more volunteerlegal services (called “pro bono”service). And the Indiana State BarAssociation has recommended themandatory annual reporting of voluntary pro bono work. We areworking to have such a program

in place in the coming months. Ourshared objective is to significantlyreduce the number of people incourt without a lawyer, enhancingIndiana’s judicial system’s efforts to provide greater justice, fairnessand efficiency.

On another front, many of you already know about how theIndiana Risk Assessment Tool isnow being used to help our courtsand the Department of Correctionto apply individualized strategiesfor offender rehabilitation. In fact,the National Institute of Correc-tions reported on its website inSeptember that “[a]nyone lookingfor an example of a great riskassessment system and/or riskassessment instruments needs to look at [the Indiana RiskAssessment System].”

Such risk assessment tools,based on the scientific principles of“evidence-based practices,” are alsoa key element of the Court’s newinitiative to explore, develop and, if possible, to implement significantimprovements in the way Indianajudges make determinations aboutthe pretrial release of citizens

charged with non-violent offenses.The Supreme Court, which has theconstitutional responsibility to“supervise the exercise of jurisdic-tion of Indiana’s courts,” has estab-lished a special task force of trialjudges, probation officers and rep-resentatives of prosecutors andcriminal defense attorneys to helpthe Court adopt the procedures tomake this happen in Indiana. Wewant to empower judges with solidtools to make the process more fairand equitable, to enhance publicsafety, to assure that people willappear for their scheduled trials,and to reduce reliance on expensivejail beds.

There are some items for yourradar screen. These are items theSupreme Court cannot accomplishwithout your thoughtful assistance:

1. Bringing the JudgmentDocket, an ancient but statutorycourt record, into the digital age.The Court has had a special ad hoccommittee, part of our RecordsManagement Committee, workingwith various stakeholders, includ-ing county clerks and others, in aneffort to modernize this relic of thequill pen era. We need your help.

2. Fixing the Marion CountyTownship Small Claims Courts.Our present system has been thesubject of ridicule by the Wall StreetJournal, and local newspaper andtelevision reporters launched inves-tigations into the system. A taskforce co-chaired by Court ofAppeals Judge John Baker andSenior Judge Betty Barteau heldhearings and made a comprehen-sive report, recommending changesurgently needed. Local leadershipand changes in court rules, howev-er, can only scratch the surface.Systemic change is imperative, and this requires legislative action.



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3. Looking further into thefuture, and considering the simul-taneous demands and constraintson county property tax revenue, as well as effective and responsiblejudicial administration, we encour-age you to consider shifting moreand more funding of the judicialbranch expenses from local govern-ment to state funding. For many

reasons, this is wise and sound public policy, and it is used effectively in many other states.

As we look to the year justcompleted and the year ahead, wealso want to commit the Indianajudiciary to doing everything wecan to help implement your mas-terful achievement last year inrevising Indiana’s Criminal Code.

This was a truly amazing feat by all involved, and particularly thesteadfast legislative leadership of the Criminal Code EvaluationCommission chaired by Rep.Steuerwald and, before him, Rep.Ralph Foley, Rep. Matt Pierce andSen. Richard Bray. A product ofmultiple years of thoughtful effortsand difficult negotiations, the resultwas an outstanding piece of legisla-tion. We understand that somemodifications may be consideredthis session, but we stress theimportance of retaining maximumjudicial discretion in criminal sen-tencing. Individualized sentencesreflect the enormous variationsamong offenders and the crimesthey commit. Judicial discretion isessential to maximize public pro-tection, offender rehabilitation andresponsible stewardship of incar-ceration costs. The courts standwith you to help implement andfulfill your admirable objectives in this bill.

This summary of highlightsand aspirations constitutes thisyear’s State of the Judiciary mes-sage. Looking forward to what the Judicial Branch, the GeneralAssembly and the Executive Branchcan accomplish together in thecoming year, this concludes our2014 report on “the condition ofthe courts.” Thank you. �



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In 2011 and 2012, I wrote aseries of columns on conflictsof interest, starting with an

overview, “Conflicts of Interest: An Overview,” Vol. 54, No. 10 Res Gestae 27 (June 2011), then discussing conflicts of interest per-taining to current clients, “CurrentClient Conflicts of Interest,” Vol.55, No. 8 Res Gestae 27 (April2012), and former clients, “For-mer Client Conflicts of Interest,” Vol. 56, No. 1 Res Gestae 33(July/August 2012), and the impu-tation of conflicts from individuallawyers to their law firms, “WeReally Are All in This Together:Imputation of Conflicts ofInterest,” Vol. 56, No. 3 Res Gestae15 (October 2012). I thought I should touch on the topic onemore time in order to call it a wrap.

Disclaimer: I had been some-what reluctant to discuss conflictsof interest again because of a recentexperience where opposing counselin a case in which I was involved asa lawyer sought to take my deposi-tion on the topic of conflicts ofinterest. This was akin to seeking to take opposing counsel’s deposi-tion to determine what the lawyer“really thinks.” This strikes me asodd, offensive and plain wrong.Fortunately, the trial judge saw it as wrong and granted a protectiveorder – which prompts me torepeat a disclaimer I ran in my first“Ethics Curbstone” column: Thesecolumns present my own views ontopics of legal ethics and profes-sional responsibility. They do notnecessarily represent the views ofmy law firm or my clients.

The conflict-of-interest looseends I would like to discuss are,first, the specific conflict provisionsfound in Rule of ProfessionalConduct 1.8, and last, the standardsgoverning client WAIVERS of orconsents to conflicts of interest.

Rule 1.8Rule 1.8 collects a variety of

rules governing discrete applica-tions of Rule 1.7, the general rule requiring that lawyers avoidconflicts of interest with currentclients. Each section of Rule 1.8would warrant its own separate col-umn. All I can realistically expect to accomplish in this column is to generally acquaint readers withthe several provisions in this rule.Sometimes lawyers focus only onthe general current-client conflictof interest rule and forget aboutRule 1.8. That can be a mistake. At least be aware that Rule 1.8 isout there so you can spot situationswhen one or another of its provi-sions might apply.

Rule 1.8(a) deals with businesstransactions with clients. One of thebetter discussions of this rule is inLiggett v. Young, 877 N.E.2d 178(Ind. 2007), although in the end,the Court decided the case on thebasis of lawyer fiduciary duties, notthe rule itself. In a nutshell, the ruleregulates conflicts of interest pre-sented when a lawyer engages in a business transaction with a clientin which the lawyer’s interests areadverse to the client’s or acquiressome other financial interestadverse to a client. The rulerequires that all such transactionsbe objectively fair and reasonable.One circumstance governed by thisrule that lawyers might not recog-nize is when the lawyer agrees withthe client to a bartered exchange oflegal services for a client providinggoods or services to the lawyer. I discussed this variation on thebusiness transaction rule in “WillYou Take Fries for That? Barteringfor Legal Services,” Vol. 52, No. 10Res Gestae 32 (June 2009).

Beyond the reasonablenessrequirement, this is a rule thatdoesn’t outright prohibit suchtransactions, although they may be prohibited by other conflict-

of-interest considerations. Instead,the rule regulates what the lawyermust disclose to the client inadvance of any such transaction.The terms of the transaction mustbe fully disclosed to the client inwriting and in terms the client canreasonably understand. How thetransaction is explained to theclient must be calibrated to theclient’s degree of sophistication.

The lawyer must also advisethe client in writing that it is desir-able for the client to be representedin the matter by independent coun-sel, and the client must be given a reasonable opportunity to seekcounsel. This requirement is notsatisfied if the lawyer includes thesemagic words in the transaction doc-ument itself without also giving theclient ample opportunity to consid-er the advice and actually seek assis-tance of independent counsel. Theclient does not have to actually berepresented by independent coun-sel in the transaction, but thereshould be solid support that theclient knew of that right and know-ingly declined to act on it.

Lastly, the client must giveinformed consent to the transactionin a writing signed by the client.The writing must set forth theessential terms of the transaction,and it must disclose “whether thelawyer is representing the client inthe transaction.” Rule 1.8(a)(3). Ihave always considered that last bitof language to be curious. I don’tsee how a lawyer couldengage in an economictransaction in which theinterests of the lawyer andclient are adverse and alsopurport to represent theclient’s interests in thetransaction. That wouldseem to me to be a non-consentable conflictunder Rule 1.7(b)(1). Seegenerally, Comment [3]

ETHIC

S CU

RB

STON

ERule 1.8 conflicts of interest and client consents to conflicts

By Donald R. Lundberg

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



RG 01-02.14_RG 09.05 2/10/14 11:11 AM

to Rule 1.8. Thus, it would seemthat the informed consent docu-ment the client signs ought to sayclearly that the lawyer is not repre-senting the client’s interests in thematter.

There are a couple points ofinterest worth mentioning that go beyond the black letter of Rule

1.8(a). One of them is that it applieswhenever a lawyer seeks to restruc-ture the terms of a fee agreement in a way that is more favorable or,under some reasonably foreseeableset of circumstances, could be morefavorable to the lawyer than theoriginal fee agreement. See Com-ment [1] to Rule 1.8. See also

Matter of Hammerle, 952 N.E.2d751 (Ind. 2011). A second point ofinterest is that there is an exceptionfor standard commercial transac-tions that the client generally markets to others. What does thismean? Well, Liggett v. Young teach-es that the standard commercialtransaction exception does notapply to a contract for a client tobuild a custom home for his lawyer.It does cover the purchase of goodsor services that the client sells to the public at predetermined prices.You get to buy gas from your gasstation-owner client or Brusselssprouts from your grocery store-owner client without having to gothrough the Rule 1.8(a) protocol at the gas pump or checkout line.

The comments to Rule 1.8 arehelpful in their discussion of busi-ness transactions between clientand lawyer. The key point here isfor lawyers to be aware that anypotential business transaction witha client warrants a pause to becomevery familiar with that rule and tobe meticulous in complying withthe important writing require-ments. When our friends at theDisciplinary Commission investi-gate a lawyer’s business transactionwith a client, a writing signed by theclient will be the first thing they askto see.

Rule 1.8(b) is often over-looked. It is not really a confiden-tiality rule because it does not deal

ETHICS CURBSTONE continued from page 19


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with revealing client information.Instead, it deals with use of clientinformation. This distinctionbetween revelation and use is alsopresent with former client informa-tion. See Rule 1.9(c)(1) and (2). A good part of the practice of law is learning from one client matterand applying that learning effec-tively to make us better lawyers infuture cases – nothing wrong withthat. What Rule 1.8(b) prohibits isthe use of information relating to aclient representation to that client’sdisadvantage, unless the client con-sents or the Rules of ProfessionalConduct permit otherwise.

Rule 1.8(c) deals with giftsfrom clients. Taking gifts that arefreely offered is not prohibited.Soliciting substantial gifts is prohib-ited. Apparently soliciting insub-stantial gifts is okay, but it seems so tacky. Also, a lawyer cannot draftan instrument giving the lawyer ora person related to the lawyer (any-one up to grandparent and down tograndchild, or anyone with whomthe lawyer has a close, familial rela-tionship) a substantial gift, includ-ing a testamentary gift. Matter ofColman, 885 N.E.2d 1238, 1243(Ind. 2008) and Matter of Watts,918 N.E.2d 330 (Ind. 2009) areimportant cases illustrating theneed for the lawyer who does draftan instrument under these circum-stances to have true independencefrom the lawyer who benefits fromthe instrument. There is an excep-tion if the lawyer or other benefi-ciary of the instrument is related to the donor. This means, forexample, that a lawyer may draft awill for mom and dad even when itwill benefit the lawyer and his sib-lings. But I guarantee there will betrouble in paradise if the will treatsthe lawyer better than his siblings.

Rule 1.8(d) probably doesn’taffect most of us who toil in thevineyards of client representationoutside the media spotlight. The

rule prohibits a lawyer from mak-ing or negotiating an agreementgiving the lawyer literary or mediarights in a matter pertaining to a client representation until it isover. The reason is pretty obvious.A lawyer’s duty is to serve theclient’s interests. A financial inter-est in media rights might influencethe lawyer’s conduct in a way thatenhances the economic value ofthose media rights at the expense of the client’s interests. The policiesbehind Rule 1.8(d) were in playwhen the Indiana Court of Appealsreversed a trial court decisiondeclining to recuse a special prose-cutor in the third murder trial offormer Indiana State Police officerDavid Camm. Camm v. State, 957N.E.2d 205 (Ind. Ct. App. 2011).

Rule 1.8(e) prohibits a lawyerfrom providing financial assistanceto a client in connection with apending or contemplated litigation

with the exception of being able toadvance court costs and expenses oflitigation. For any client, the lawyermay make the client’s repaymentcontingent on the outcome, and thelawyer may pay costs and expensesfor an indigent client without anyexpectation of reimbursement. Thisprohibition is founded on the his-torical prohibitions on champertyand maintenance. This prohibitionprevents a lawyer from advancingor paying for the living costs of aclient to alleviate economic pres-sure on the client to settle early. A lawyer should be able to advance(or, for an indigent client, outrightpay for) the costs of a physicianwho provides expert testimony in acase, but may not pay the expensesfor the client to receive medicaltreatment for a medical conditionassociated with the litigation. InMatter of Norman, 659 N.E.2d 1046



RG 01-02.14_RG 09.05 2/10/14 11:11 AM

(Ind. 1996), the Supreme Courtdeclined to find a violation of Rule1.8(e) when a lawyer loaned $300 toa client, but there was no indicationthat the loan was in connectionwith pending or contemplated liti-gation. The line between a permis-sible humanitarian loan to a clientand prohibited financial assistancein connection with pending or con-templated litigation can be a blurryone.

Rule 1.8(f) is another rule that is often overlooked by lawyers.It regulates (but does not outrightprohibit) lawyer compensation by anyone other than the client. In fact, lawyers are often paid bynon-clients. The underlying idea is that a non-client who pays for the lawyer’s services might undulyinfluence the lawyer’s client repre-sentation. A particularly interestingapplication of this rule was present

in Matter of Maternowski, 674N.E.2d 1287 (Ind. 1996). For thisreason, the lawyer cannot allow the fee-payor to interfere with theclient relationship, the lawyer’sindependent professional judg-ment, or allow access to clientinformation without the client’sconsent. The lawyer must securethe client’s informed consent beforebeing paid by a non-client. There is no written consent requirement,but prudent lawyers will include a provision in their engagementagreement covering the require-ments of Rule 1.8(f) and at leastacknowledging the client’sinformed consent, if not requiringthe client to sign the consent document.

Rule 1.8(g) deals with aggre-gate settlements. An aggregate set-tlement is when an opposing partyproposes to settle a case before the

division of the settlement is estab-lished among the adverse parties.So long as the party who pays tosettle a case gets a full release, it isoften of little concern to that partyhow the settlement is divided by theother side. The aggregate settlementproblem comes up on the side thatreceives the settlement payment.Because division of the settlementmoney is a zero-sum game, eachco-client’s interests are pittedagainst the others’. Not properlyhandling an aggregate settlementwas the central issue in Matter ofRoss, 982 N.E.2d 295 (Ind. 2013).That case should be consultedwhenever a lawyer has clients whoare presented with an aggregate settlement offer. I discussed Ross and aggregate settlements in “We’re (Not) All in This Together:Aggregate Settlements,” Vol. 56,No. 8 Res Gestae 22 (April 2013).



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RG 01-02.14_RG 09.05 2/10/14 11:11 AM

Rule 1.8(h) regulates the abilityof a lawyer to settle client or for-mer-client claims against thelawyer. A lawyer is free to settlesuch a claim from a client or for-mer client who is represented byother legal counsel. But if the clientor former client is not represented,the lawyer may not enter into a set-tlement unless the person is advisedin writing that it is desirable thatthe person be represented by andgiven a reasonable opportunity toconsult with independent counsel.A lawyer can never make an agree-ment with a client to prospectivelylimit liability to the client unless the client is actually represented by independent legal counsel withrespect to the agreement. It is notenough for the client to merelyhave the encouragement andopportunity to be independentlyrepresented. For a case applyingthis rule in a disciplinary setting, see Matter of Blackwelder, 615N.E.2d 106 (1993).

Rule 1.8(i) is another rule thatgrows out of the historic prohibi-tions against champerty and main-tenance. It prohibits a lawyer fromacquiring a proprietary interest in a client’s cause of action. There areexceptions – most prominently, a lawyer is allowed to have a rea-sonable contingency-fee interest in a client’s case, and a lawyer isallowed to assert legally recognizedlien rights in the client’s case inorder to protect the lawyer’s fees or expenses. Lawyer lien rights tosecure attorney fees were nicelytreated in Timothy J. O’Hara andCurtis T. Jones, “Collection ofAttorney Fees by Assertion of Liensin Indiana,” Vol. 51, No. 5 ResGestae 25 (December 2007).

Rule 1.8(j) prohibits sexualrelations (an undefined term)between a lawyer and a client unlessthe sexual relationship predates thelawyer-client relationship. This isan outright prohibition and is not

a consentable conflict of interest. I wrote about this topic in “Sex and Intimacy: EmotionalEntanglements with Clients,” Vol.52, No. 9 Res Gestae 33 (May 2009).Read literally, this rule would seemto prohibit a lawyer, who, abstain-ing entirely from sexual relationswith the client, falls in love andmarries the client, from consum-mating the marriage – a result thatseems too weird to even contem-plate.

Rule 1.8(l) is a special rule thatdeals only with criminal prosecu-tors. It generally prohibits part-time prosecutors or their deputiesfrom handling cases in privatepractice that present an issue overwhich the lawyer has prosecutorialauthority or responsibilities. This isa prohibition that is not found inABA Model Rules of ProfessionalConduct 1.8. There are exceptions.In their private capacity, part-timeprosecutors may handle tort cases if a parallel infraction investigationor proceeding has terminated. Andpart-time deputy prosecutors mayhandle family law matters whenthey entail child support questions

and the like, concerning whichprosecutors’ offices have authorityor responsibility, only if the electedprosecutor agrees in writing tocarve out from the deputy’s respon-sibilities matters related to familylaw. There is a substantial body of Indiana disciplinary case lawaddressing the limitations on part-time prosecutors imposed by thisrule or its identical predecessor,which before Jan. 1, 2005, was Rule 1.8(k).

Imputation of Rule 1.8 conflict rules

Rule 1.10 is the general rulegoverning the imputation of con-flicts of interest, which I discussedin detail in “We Really Are All inThis Together: Imputation ofConflicts of Interest,” Vol. 56, No. 3 Res Gestae 15 (October 2012).Imputation of conflicts of interestoccurs within law firms. What con-stitutes a law firm can sometimesbe tricky, a topic I discussed in “A Firm by Any Other Name is Justas Conflicted: Quasi-Law Firms and Imputed Conflicts of Interest,”


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Vol. 53, No. 2 Res Gestae 36(September 2009).

The specific conflict rulesfound in Rule 1.8 have their ownimputation provision, found inRule 1.8(k). It provides that all ofthe prohibitions found in Rule 1.8,except the prohibition on engagingin a sexual relationship with a

client, are imputed to all otherlawyers in the same firm. As I dis-cussed earlier, not all of the non-1.8(k) sections of Rule 1.8 are out-right prohibitions. Rather, they reg-ulate how lawyers must handle cer-tain conflict situations without pro-hibiting them outright if properlyhandled. Thus, Rule 1.8(k) will alsoimpose those same duties on other

lawyers in the same firm. For exam-ple, if one lawyer in a firm repre-sents a client, another lawyer in thesame firm cannot provide financialassistance to the client withoutcomplying with the provisions of Rule 1.8(e).

Client waivers or consents to conflicts of interest

Clients are allowed to waive orconsent to most conflicts of inter-est. The distinction between waiverand consent is probably meaning-less, although one ordinarily thinksof clients consenting to existingconflicts of interest and waivingconflicts of interest that don’t currently exist, but might arise in the future.

Because former-client conflictsof interest are founded primarily on the need to protect former-client confidences, all conflicts ofinterest under the former-clientconflict rule, Rule 1.9(c), are con-sentable. However, all client con-sents, whether former-client con-flicts, current-client conflicts underRule 1.7 or specific client conflictsunder Rule 1.8 must be informed.Informed consent is “the agreementby a person to a proposed course ofconduct after the lawyer has com-municated adequate informationand explanation about the materialrisks of and reasonably availablealternatives to the proposed courseof conduct.” Rule 1.0(e). What isrequired to secure current- or for-mer-client informed consent willdepend on the sophistication of theclient. Large, institutional clients,particularly those with their ownin-house counsel, will probablyhave a greater understanding of the implications of consenting to a conflict of interest than will anuneducated client. At a minimum,the basic information required bythe client before consenting to aconflict of interest will need to becommunicated differently to thelatter than the former.



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Since 2005, the Indiana Rulesof Professional Conduct in Com-ment [22] to Rule 1.7 have recog-nized that under some circum-stances, clients can waive conflictsof interest before they have actuallyarisen. The effectiveness of futureconflict waivers will turn on theclient’s understanding of the cir-cumstances in which they mightarise, the client’s sophistication in legal matters, and whether theclient is independently representedby counsel in giving the consent.

Current-client conflicts ofinterest are consentable under lim-ited circumstances. The primarycriterion for the consentability of a current-client conflict is that thelawyer must reasonably believe“that the lawyer will be able to pro-vide competent and diligent repre-sentation to each affected client.”Rule 1.7(b)(2). The test is both sub-jective (the lawyer must actuallybelieve it) and objective (the beliefmust be reasonable). Also, the con-flict cannot be prohibited by law,which is unusual, Rule 1.7(b)(3).And, the matter cannot involve rep-resenting a client in a proceedingbefore a tribunal while simultane-ously representing the other side.Rule 1.7(b)(3). This may not ariseoften, but could sometimes arisewhen a lawyer tries to representboth husband and wife in a “friend-ly” divorce, or when a law firm’sconflict-checking system is not usedand one lawyer ends up on one sideof a case while another lawyer inthe same firm ends up on the otherside. Finally, all affected clientsmust give informed consent con-firmed in writing. Rule 1.7(b)(4).When a conflict of interest is pre-sented by the lawyer’s personalinterests, informed consent by onlyone client will be required. In othercircumstances, the informed con-sent of two clients or one currentclient and a former client are oftenrequired.

Documenting client consent to conflicts of interest

Most client consents to con-flicts of interest must be document-ed at a minimum by a written doc-ument confirming the client’s con-sent. See, e.g., Rules 1.7(b)(4) and1.9(a). Being specific subspecies ofRule 1.7 conflicts, most Rule 1.8conflicts (if they are consentable at all) can be documented by clientconsent confirmed in writing.Confirmation in writing can be awritten communication (it could be an email) from the lawyer to theclient confirming consent. By farthe better course is to secure theclient’s signature on a documentsetting forth the nature of the con-flict and acknowledging the client’sconsent.

In some conflict situations,documentation of client informedconsent must be by way of a writingsigned by the client. This is the case

when a lawyer enters into a busi-ness transaction with a client andenters into an aggregate settlement.See Rules 1.8(a)(2) and 1.8(g),respectively. Some Rule 1.8 con-flicts require informed consent butno writing whatsoever. See Rules1.8(b) and (f). Of course, theabsence of a writing requirementdoes not mean it is prudent to relyon client informed consent withouthaving some form of written docu-mentation.

ConclusionConflicts of interest are tricky

business. Lawyers are well advisedto sharpen their sensitivities to con-flicts so they can pause and investi-gate them carefully before proceed-ing on. �


RG 01-02.14_RG 09.05 2/10/14 11:11 AM

In his leadership climb to thepresidency of the Indiana StateBar Association, as well as in

his association with the ABA, JimDimos has witnessed the many andvaried relationships between judgesand lawyers. So he helped kick offIndiana’s Statewide Bench-BarSymposium on Dec. 4 in Indianap-olis with a story about sittingaround a table at a Midwest region-al bar meeting, listening to com-plaints from other states. “But I had nothing to say,” Dimosrecalled, “and it occurred to mehow noteworthy that was.” He saidIndiana’s relationship between thebench and bar is unique, “andthat’s a shame – for those otherstates.”

The Hon. John R. Pera of LakeSuperior Court, president of theIndiana Judges Association, said the relationship can be traced to thestrong bond between the IndianaSupreme Court and the trial courtjudges – and carries over to judges

looking at lawyers as partners in theschool of justice.

“At the end of the day,” Perasaid, “we serve the public – not onlywith what we do, but what we looklike we’re doing. Civility is the keyto professionalism,” Pera contin-ued. “It’s our job to inspire confi-dence in the public in all that wedo.”

That thought echoed words of Indiana Chief Justice Brent E.Dickson, who opened the sympo-sium with some words on civility.

“What you say and what youdo reflect on the public confidencein the system,” he said. Dicksonsaid the judicial system is beingattacked by unrealistic portrayalson television. “We [need to] showthem what lawyers are really like,what judges are really like.”

Dickson said the bench-barsymposium could help in thatcause. “I hope this [is] the begin-ning of a growing tradition.” �

Symposium keynote

“Legislative gridlock at boththe federal and state level

is threatening liberty.”

So said Laurel G. Bellows,immediate past president of theAmerican Bar Association, whenshe delivered the keynote address at the Statewide Bench-BarSymposium Dec. 4 in Indianapolis.

“Our justice system in thiscountry is failing,” she said, notingthat in many states the legal systemis seriously underfunded to thepoint where lawyers are asked tobring their own carbon paper to thecourthouse – and to where somecourts have been closed or the workweeks shortened.

“Our state and federal legisla-tors are starving our justice sys-tem,” she said, noting that whencourts can’t do their work, the busi-ness world is affected, and personallives are affected as well.

“Indiana has a good relation-ship with its legislature,” theChicago attorney said, “but youcannot get funding for the technol-ogy necessary to have the kind ofnew virtual court system we needfor access to justice in rural com-munities.” �

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The notion that law school is too expensive is certainlynot new. But William D.

Henderson has taken the idea a stepfurther.

“Law school costs too much,relative to the value it delivers,” saidHenderson, professor of law at theIndiana University Maurer Schoolof Law and director of the Centeron the Global Legal Profession. “I see graduates who aren’t goodcritical thinkers,” Henderson con-tinued as he took part in a paneldiscussion at the Statewide Bench-Bar Symposium in December inIndianapolis. “I’m an advocate,” he said, “for improving the quality,moving toward experiential educa-tion to produce better lawyers.”

The panel discussion, “TheFuture of Legal Education,” wasmoderated by the Hon. Steven H.David of the Indiana Supreme

Court and included Peter C.Alexander, founding dean ofIndiana Tech Law School; AntonyPage, vice dean and professor of lawat Indiana University McKinneySchool of Law; and the Hon.Randall T. Shepard, senior judgeand former Chief Justice ofIndiana.

Henderson’s commentsstemmed from Justice David’squestion, “Why can’t tuitionsdecrease 25 percent?” Alexander’sanswer went back to his tenure atthe University of Southern Illinois,where he said salaries and benefitsamounted to $7.1 million of thatlaw school’s $8 million budget,leaving $900,000 for everythingelse. “We have to find a better wayto do business,” Alexander said.“We’re not the cash cows peoplethink we are.”

To that end, David also askedwhether panelists approved of theidea of “limited licenses” to begiven, perhaps, for two years of law school. Page said the MaurerSchool is already doing that byawarding masters of jurisprudence– not a law degree, but suited forpeople who want to work with thelaw, but not as lawyers.

Henderson said he favoredlimited licenses, such as trainingsomebody to work exclusively inreal estate law. He likened suchcareers to nurse practitioners ordental assistants.

But Alexander sounded acounterpoint. “I like to think thereis some added value to go to lawschool, not only to think, but tothink in an integrated way.” He saidbroadly trained lawyers “see thebigger picture that comes from taking not just real estate courses.”

That discussion meshed withcomments by Shepard, who is serv-ing as chair on the American BarAssociation’s Task Force on theFuture of Legal Education. He said

research revealed that 56 percent ofthe 2012 graduates found work aslawyers within nine months, whilemost of the other 44 percent wereemployed in law-related jobs wherea license was not needed.

“The most unexpected thing,”Shepard said, “was how law schoolsare financed.” He said that over avery short period of time studentshad shifted from need-based tomerit-based because of what theincoming students’ metrics coulddo for the class profile. That pres-sure, Shepard believes, comes fromthe U.S. News & World Report’srankings, which he said “are notgood for the diversity of the profes-sion and the economic diversity ofthe profession.”

Alexander was also critical ofthe ranking system. “If you’re goingto measure,” he said, “measurethings that count – not linear feetof library shelves.”

Henderson said the rankingsystem could be countered by thehiring practices of law firms them-selves – by seeing beyond the rank-ings. He said studies reveal that“blue-collar work experience is a positive predictor [of success],but studies never find prestigiousschools to be a predictor. But snob-bism is ingrained into law firmsand judges.”

Alexander said Indiana Tech’snew law school – now halfwaythrough its first year – has workedto control costs through mentor-ships. He said the school is trying to create a different model by get-ting a volunteer lawyer or judgeassigned to every student. Thementors spend time in the class-rooms as well, while students arerequired to serve 30 hours of probono work. “We’re trying to buildrelationships from the first second,”he said. �Bill Brooks is a media consultant and freelance writer in Indianapolis.

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Technologicalchange & the law

Technology is experiencing “a whirlwind of change –

exponential change,” according to Gary E. Marchant, who said thatat the current rate of development,the 21st century would bring with it not a hundred years of change,“but 20,000 years of change.”

So it should not be surprising,as pointed out by Judge William J. Hughes of Hamilton SuperiorCourt 3, that “legislation is notkeeping up with changing technol-ogy.” The Noblesville jurist madethat observation as he introducedMarchant, who was among the presenters at the Statewide Bench-Bar Symposium hosted by theIndiana State Bar Association andthe Indiana Judicial Center in earlyDecember.

And though there was a widearray of programs at the first suchconference in 13 years, technologyand the challenges that exponentialchange presents to the justice system were major themes.

“Emerging Technologies & the Future of Law” was the title ofthe session presented by Marchant,faculty director of the Center ofLaw, Science & Innovation at theSandra Day O’Connor College ofLaw, Arizona State University.

And while he spoke of chal-lenges posed by the rapidly devel-oping world of science, technologyof a different sort – governmentsurveillance – was the subject ofFred H. Cate, an I.U. professor whois director of the Center for AppliedCybersecurity Research at IndianaUniversity Maurer School of Law in Bloomington.

Cate, who consults for theNational Security Agency, spoke onthe thousands of ways the federalgovernment is now surveillingAmerican citizens, especially in the



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anything we can encrypt,” he said.“The federal government isn’t justtaking advantage of technology. It’s influencing and modifyingtechnology.” He added that whilecurrent activities are alarming, a bigger reason for concern is that“we have seen nothing yet.” He said social media and our growingreliance on electronics have createdan explosion of data that can bedeveloped about any of us.

Presaging headlines that woulddominate newspaper front pagesjust a few days later, Marchant saidsmartphones now feature GPSchips that can be used not only bynational security officials, but alsoby state and local police to deter-mine where people are or havebeen. Employers can use the tech-nology to track employees; parentscan track children; spouses cantrack cheating spouses. Stalkerscould even use the technology.

Marchant is confident that the emerging technologies will out-pace a legal system not equipped to deal with the issues.

Significant advances in genet-ics, for example, are not being dealtwith by Congress or regulatorybodies. He said doctors can cur-rently order about 3,000 differentgenetic tests that can indicate a person’s predisposition to disease.One such test can predict with 90-percent certainty whether a personwill develop Alzheimer’s disease.

“But do you want to know? Do you want other people toknow?” He said the answers couldaffect insurance rates – and haveimplications in the courtroom.“People are going to want to usethis information,” he said. “Butwe’re at least 10 years away fromany meaningful legislation. Is thisthe next asbestos?”

Marchant also pointed outpotential impacts in criminalcourts, citing a case in which theidentity of a suspect was deter-mined by matching DNA on adrinking class and on an envelope.“DNA is left everywhere. What canbe used, and how do we protectthat?”

Genetic testing can also revealpredisposition to violence, what has been called “the murder gene.”Would that information, if intro-duced to the court, be a mitigatingfactor – or just the opposite? “Geneinformation is coming into play ina variety of cases,” Marchant said,“but there is no guidance. You’regoing to have to wing it.”

He also talked about nanotech-nology, a rapidly growing fieldbeing used by nearly every industry,including the medical world. Butdoctors aren’t fully aware of all theadvances and are therefore not utilizing the new tool effectively. “I have no doubt that within a fewyears we’re going to have a wave of lawsuits related to nanotech-nology.”

Marchant covered growingissues in the area of surveillance,but also talked about an unexpected area – virtual worlds, such as that existing at www. secondlife.com, where there’s even a legal tender known as Linden dollars. “People are making realmoney in ‘second life.’ Should we start taxing Linden dollars?”

He cited an instance where a married man even got married in “second life.”

“If he dies, who gets his ‘second life’ property?” �Bill Brooks is a media consultant and freelance writer in Indianapolis.

TECHNOLOGICAL CHANGE continued from page 29


world of cyberspace. “Their missionis important,” he said, noting thatfederal officials take their jobs veryseriously in the post-9/11 world.But he said they have a “collecteverything mentality.” Andalthough many citizens may notmind the unseen intrusions, Catesaid officials have a cavalier attitudeabout the legal requirements.

One of many examples: U.S.citizens have constitutional protec-tions within the borders of theUnited States – but there is no “lineat the border” for most electronictransmissions. Further, the U.S.Supreme Court has ruled that thereis no reasonable expectation of pri-vacy when documents reach a thirdparty. Therefore, anything held bysuch entities as Google and Yahoohave no constitutional protections.

In addition, U.S. officials setup shop outside our borders to do surveillance on electronic data,from emails to credit card transac-tions.

“What should worry us aslawyers and judges is the way gov-ernment has gone about this,” Catesaid. “These are policy issues thatshould be legislated.” Instead, hesaid, NSA is making those decisionsin what he called “a classic reinter-pretation of checks and balances.”

Cate said no one should beconfident in his or her security systems. “The feds can decrypt

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Indiana State Bar Association

EP1419

In October, the IndianaSupreme Court issued one civilopinion and granted transfer

in one civil case. The Indiana Courtof Appeals issued 25 published civil opinions. The full texts ofthese opinions are available viaCasemaker at www.inbar.org.

SUPREME COURT DECISIONS

Unanimous Supreme Courtdetermines that puffery is statement of opinion, not fact,and thus cannot form basis of deception or fraud claims

After seeing an advertisementfor a “Sporty Car at a Great ValuePrice,” the plaintiff visited thedefendant car dealership to see andtest-drive the car. The salespersonhad to jump-start the car, and itidled roughly. When the plaintiffasked why, the salesperson

responded that the car “would just need a tune-up” because “it had been sitting fora while.” The plaintiffpurchased the car,signing an acknowl-edgement that the car was sold as is.Inspections by both a dealership and inde-pendent mechanicrevealed extensiveproblems with the car.The plaintiff drove thevehicle for only 44days before placing itin long-term storage.

Following receiptof an expert’s opinionthat the car was unsafeto operate and that thecondition would havebeen obvious to any-one who inspected or serviced the car, the plaintiff filed suit against the car

dealership. She alleged that the car dealership’s advertisement of a“Sporty Car at a Great Value Price”violated the Indiana DeceptiveConsumer Sales Act and entitledher to damages under the CrimeVictim’s Relief Act because theadvertisement constituted criminaldeception. She further alleged aclaim of common law fraud basedon the salesperson’s representationthat the car just needed a tune-up.

Addressing the plaintiff’sclaims under the Indiana DeceptiveConsumer Sales Act and the crimi-nal deception statute, a unanimousSupreme Court in Kesling v. HublerNissan, Inc., 997 N.E.2d 327 (Ind.2013) (Rush, J.), found the cardealership’s statement “Sporty Car at a Great Value” to be puffery.Consequently, it was a statement ofunverifiable opinion, not a repre-sentation of fact. Because both theDeceptive Consumer Sales Act andthe criminal deception statuterequire a representation of fact, theCourt granted summary judgmentin favor of the car dealership. TheCourt’s finding that the statementwas puffery allowed it to avoid theopen issue of whether implied rep-resentations of fact are actionableunder the Deceptive ConsumerSales Act.

With regard to the plaintiff’scommon law fraud claim, theSupreme Court found a genuineissue of material fact that precludedsummary judgment. The plaintiff’sfraud claim was based on the sales-person’s statement that the car“would just need a tune-up.” TheCourt determined that this state-ment could be understood as a rep-resentation of prior or existing factand that evidence existed to sup-port an inference that the salesper-son knew his statement was false.Finally, the Court found a genuineissue of material fact as to whetherthe plaintiff relied on the salesper-son’s statement. The plaintiff’s

acknowledgement that she boughtthe car as is did not defeat her claimof fraud because just an acknowl-edgement disclaims only impliedwarranties, not fraudulent misrep-resentations.

SUPREME COURT TRANSFER DISPOSITIONS

The Indiana Supreme Courtgranted transfer in the followingcivil case, with an opinion to followat a later date:

Fishers Adolescent CatholicEnrichment Society, Inc. v. Eliza-beth Bridgewater o/b/o AlyssaBridgewater, 990 N.E.2d 29 (Ind.Ct. App. 2013) (Vaidik, J.), transfergranted Oct. 25, 2013 (holding, as a matter of first impression, thatactions of religious-based, not-for-profit corporation formed to pro-vide enrichment opportunities forhomeschooled children were “relat-ed to” education, and thus, theIndiana Civil Rights Commissionhad subject matter jurisdiction overthe corporation).

SELECTED COURT OFAPPEALS DECISIONS

• “[Plaintiff] posits that[Teacher] theoretically could havepositioned herself so that she couldhave looked back and forthbetween the hallway and the class-room and therefore could havenoticed and intervened in K.M.’sbehavior. Regardless, it is almostalways possible to speculate thatsomething more could have beendone in situations like this. Suchspeculation is insufficient to avoidsummary judgment. The factremains that [Teacher] has onlyone pair of eyes; contrary to thebelief of many generations of stu-dents, teachers do not in fact haveeyes in the back of their heads. Shewas acting reasonably in focusingher attention on the hallway ratherthan the classroom at the momentthe assault occurred. Moreover,

REC

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10/1

3Appellate civil case law update

By Maggie L. Smith and Emily K. Cremeans


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[email protected]

Maggie L. Smith Frost Brown ToddIndianapolis, Ind.

[email protected]

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schools are not required to con-stantly observe all students at alltimes, nor to guarantee that inci-dents such as the one here neverhappen, in order to discharge theirduty of adequate supervision”Prancik v. Oak Hill United Sch.Corp., 997 N.E.2d 401, 405-06 (Ind.Ct. App. 2013) (Barnes, J.)

• “Article II of Linder’s willconclusively establishes that[Attorney] O’Bryan knew that sheintended to benefit third parties,whom she would list on a separateform that he provided to her. Tohold that O’Bryan did not owe theRelatives a duty in this situationwould immunize and thus encour-age even more egregious acts ofmalpractice, to the detriment ofinnocent third-party beneficiaries.O’Bryan knew that the third partiesto be named on Linder’s list wouldrely on his professional skill andjudgment to reap any benefitsunder the will, and the fact that hemay not have known their nameswhen he drafted the will cannotinsulate him from liability.”Ferguson v. O’Bryan, 996 N.E.2d428, 433 (Ind. Ct. App. 2013)

• “[T]he Library is not preclud-ed by Section 11.3.7 of the standardAIA contract from seeking recoveryfor pollution cleanup costs forproperty contaminated by theDefendants’ allegedly faulty con-struction that is outside the scopeof ‘the Work’ for which theDefendants were contracted to per-form.” Allen Cnty. Pub. Library v.Shambaugh & Son, L.P., 997 N.E.2d48, 55-56 (Ind. Ct. App. 2013)(Barnes, J.).

• “The trial court, however,erred in conflating the issue of con-fidentiality for purposes of discov-ery with the issue of restrictingpublic access to materials filed incourt, and we therefore reverse thetrial court’s order regarding publicaccess to Theodore’s depositionsand remand with instructions that

the trial court hold a hearing atwhich Theodore must prove byclear and convincing evidence thatportions of his depositions shouldnot be open to public access pur-suant to Indiana AdministrativeRule 9.” Angelopoulos v.Angelopoulos, 2013 WL 5827979(Ind. Ct. App. 2013) (Mathias, J.)

• “[G]iven the language used inthe force majeure provision andelsewhere in the contract, thenature of the agreement, the cir-cumstances surrounding the execu-tion of the contract, and the appar-ent purpose of making the contract,


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we conclude that the terms of theforce majeure provision excusingperformance for ‘any other reasonnot within the reasonable control of Century Center’ includes the closure and relocation of the Hall of Fame. Certainly, the phrase ‘anyother reason’ includes a broad spec-trum of events, and the Hall ofFame’s closure and departure fromSouth Bend was a cause not withinthe reasonable control of the Cityor the Century Center. Therefore,we hold, as a matter of law, that the City’s or the Century Center’sinability to perform was solely due to an event of force majeure asdefined in the contract.” SpecialtyFoods of Indiana, Inc. v. City of S.Bend, 997 N.E.2d 23, 29 (Ind. Ct.App. 2013) (Darden, Sr. J.).

• “[Plaintiffs] the Malanders’challenge involves negligence ofMedtronic’s technicians in givingDavid’s physician allegedly faultyadvice regarding the performanceof one specific lead. As such, we conclude that the Malanders’claim is not preempted by theMDA, and the trial court properlydenied Medtronic’s motion forsummary judgment on this issue.”Medtronic, Inc. v. Malander, 996N.E.2d 412, 419 (Ind. Ct. App.2013) (Barnes, J.).

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• “[W]e find that accepting[teacher’s] interpretation of Section7 that the [Indiana Department ofEducation] IDOE, and by extensionthe ALJ, is limited by which field is selected on the recommendationform filed by the Superintendent,and that in this instance the ALJwas given the choice between themost severe punishment, revoca-tion, or no punishment, would be illogical. The legislature hasceded to the IDOE the authority to enforce licensure standards andto determine the details of licens-ing, and therefore we do not believeit would have intended for Section7 to be interpreted in such a fashionas to award the power to determinethe action to take against a teachinglicense to the Superintendent, with the IDOE having only thepower to determine whether theSuperintendent’s recommendedaction was warranted.” Terkosky v.Indiana Dep’t of Educ., 996 N.E.2d832, 846 (Ind. Ct. App. 2013)(Brown, J.). �Maggie Smith is a 1996 magna cumlaude graduate of the University ofArizona School of Law and was a visitingthird-year student at Indiana UniversitySchool of Law-Bloomington. Followinggraduation from law school, she clerkedfor the Indiana Supreme Court, Hon.Brent E. Dickson, and served as anadjunct professor at the I.U. School ofLaw. Maggie is a member of the law firmFrost Brown Todd and practices in thearea of appellate litigation.

Emily Cremeans is a 2009 summa cum laude and Order of the Coif graduate of the University of Illinois College of Law. Prior to joining Frost Brown Todd, she completed a clerkship with the U.S. Court of Appeals for the Ninth Circuit, the Hon. Judge Richard C. Tallman, and worked as an assistant U.S. attorney, briefing and arguing more than 20 cases before the Seventh Circuit. Emily is an associate in the firm’s appellate and business litigation practice groups.

Address change,email or postal?

Contact Kevin Mohl @ the State [email protected]

RG 01-02.14_RG 09.05 2/10/14 11:11 AM

The comma is the most misused and also the mostannoying punctuation

mark in the English language. A misplaced or omitted comma can cause ambiguity or misreadingof the text. It can also cost a lot ofmoney, as illustrated by the famous“million dollar lawsuit,”1 in which asingle comma created an ambiguityin a contract and cost one party a million dollars. Grammar rulesdevelop over time, and it took centuries for the grammarians toformulate specific rules for commausage. Even then there was somediscrepancy. Until the 20th century,good writers used commas indis-criminately, and even today someEnglish teachers tell their studentsto insert a comma whenever thereader needs to take a breath.

To clarify these muddy waters,I have listed below three commarules that cover most instances in which a comma is required or preferred.2

Rule 1. Set off nonrestrictiveexpressions with a comma. A clauseor phrase is nonrestrictive if thesentence would retain its essentialmeaning without it. If the expres-sion modifies a noun (or a wordacting as a noun, such as a pronounor gerund3), it is essential if it isnecessary to point out which one.Consider this sentence:

Her husband who was injured in a car accident had no insurance.

Unless the woman is abigamist, she has only one husband.Therefore, the clause is nonrestric-tive:

Her husband, who was injured ina car accident, had no insurance.

It is obvious that a nonrestric-tive expression requires two com-mas unless it is at the beginning or end of a sentence. However,those who were taught to insert a comma when the reader needs

to take a breath often write sentences like this:

Evidence of prior offenses which is generally inadmissible to provethe propensity of the defendant tocommit the crime for which he hasbeen accused, may be admissible tocast doubt on the credibility of thedefendant’s testimony.

A comma before “which” aswell as after “accused” is necessaryto set off the nonrestrictive clause.

Rule 2. Insert a comma before aconjunction that joins two inde-pendent clauses. An independentclause is a clause that is a completesentence by itself. Two independentclauses may be joined by a commaand a coordinating conjunction to create a compound sentence.Coordinating conjunctions are and, but, or, nor, for, so, and yet.Examples:

The lawyer filed a persuasive brief,but [coordinating conjunction]the court denied his motion to dismiss.

Her computer malfunctioned, and[coordinating conjunction] shesubmitted a brief with two pagesmissing.

If the clauses are short, acomma is optional. This example iscorrect, though a comma before theconjunction would also be correct.

The case was dismissed and theplaintiff appealed.

A common error is to join twoindependent clauses with anadverb, such as however, therefore,or thus. Writers who do so havecreated a run-on sentence, alsoknown as a comma splice.Examples:

The lawyer filed a persuasive brief,however, [connective adverb]the court denied his motion to dismiss the case.

Her printer malfunctioned, thus[connective adverb] she submit-ted a brief with two pages missing.

Correct these errors by replac-ing the comma with a semicolon.

Writers sometimes confuse acompound predicate with a com-pound sentence. In this sentence,the comma after “company” iswrong because the sentence hasonly one subject but two verbs thatform a compound predicate.

The contract includes restrictionson competition once the employerhas left the company, and forbidssome competition altogether.

Rule 3. Separate items in a serieswith a comma. A series is a list ofthree or more items. Consider thissentence:

He used a crowbar that he hadstolen from the garage, and ascrewdriver to pry open the door.

The comma is wrong becausethere are only two items – a crow-bar and a screwdriver.

To avoid ambiguity, follow theserial comma rule, also known asthe Oxford rule or the Harvardrule, and put a comma after thenext to last item in a series. Thesesentences illustrate possible ambi-guity.

Our client wants to divide herproperty equally among the follow-ing members of her family: herhusband, her son, her daughterand her son-in law.

Does the client want to divideher property three or four ways?Another example is this ordinance:

The board of reviewshall be composed of thecounty assessor, countyauditor and county treasurer, and two free-holders to be appointedby a judge of the circuitcourt.

How many memberswill the board have?

WO

RD

WISE

A quick guide to comma usageBy Prof. Joan Ruhtenberg

Prof. Joan RuhtenbergI.U. Robert H. McKinney School of LawIndianapolis, [email protected]



RG 01-02.14_RG 09.05 2/10/14 11:11 AM

Additional rules. Other rulesregarding commas require little orno explanation and are traditionallyobserved. They include the follow-ing: Set off with commas the nameof a state following the name of atown or city. The defendant lived inMadison, Wisconsin, before movingto Indiana. Set off the year in a dateonly if it includes the day: April 1,2013, but April 2013. Separate twoor more serial adjectives with acomma. There was a short, tensepause after the judge’s reprimand.Set off parenthetical expressions orinterrupters with commas. A fewstates, for example, have adopted aparent-child testimonial privilege.Place a comma after an introducto-ry word. However, there are excep-tions to the general rule.

A comma after an introductoryphrase or clause is recommended. If the phrase or clause is long, a comma will tell the reader whenthe main clause begins. No comma

might create an ambiguity.Consider this sentence:

At common law prior to the adop-tion of the Married Women’sProperty Acts in the nineteenthcentury a tenancy by the entiretywas the only concurrent estate thatcould be created between husbandand wife.

A comma after “in the nine-teenth century” would tell the read-er when the main clause begins andwould also clarify what the phrasemodifies.

At common law prior to the adop-tion of the Married Women’sProperty Acts in the nineteenthcentury, a tenancy by the entiretywas the only concurrent estate thatcould be created between husbandand wife.

Finally, insert a comma if it isnecessary to avoid an initial mis-reading, as illustrated by this sen-tence:

When he called the defendantrefused to answer the telephone.

Comma rules matter. Of thethree ABC’s of legal writing (accu-racy, brevity, and clarity), clarity is, next to accuracy, the mostimportant. Clarity requires, amongother things, the correct use ofcommas. �1. Rogers Communications v. Aliant Telecom,

[2007] C.R.T.C. 75.

2. For a more complete discussion of commasand other punctuation, read Lynn Truss, Eats,Shoots and Leaves: Illustrated Edition (GothamBooks 2008).

3. A gerund is the -ing form of a verb that is used as a noun. In the following sentence,“Imposing” is a gerund: Imposing such a dutywould be unduly burdensome.

Joan Ruhtenberg is an honors graduate ofIndiana University Robert H. McKinneySchool of Law, where she was an articleseditor of the Indiana Law Review.She served as a clerk-intern for the Hon.James E. Noland, U.S. District Judge forthe Southern District of Indiana, and forthe Hon. Webster L. Brewer of MarionSuperior Court. Prof. Ruhtenberg joinedthe faculty in 1980 and is director of legalanalysis, research & communication. She is the co-author of the second editionof A Practical Guide to Legal Writing & Legal Method.

WORDWISE continued from page 35


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We are hopeful that youare familiar with meta-data, especially as it

exists in email messages and wordprocessing files. If not, then a briefrefresher is in order. There are acouple of different types of metada-ta, but most regard the commondefinition to be data that is storedinternal to the file (you can’t see itwithout knowing how to look forit), and it is not explicitly definedby the user. The application (e.g.,word processor) inserts data withinthe file such as the author, last timeprinted, fonts used or creation date.But what about image files such asthose taken with digital cameras?What metadata do those files contain?

Digital photos can be an elec-tronic evidence heaven. Digitalimage files typically contain infor-mation about the date and time thephoto was taken, camera settingssuch as aperture and shutter speed,manufacturer make and model(and often the serial number) and,in the case of smartphones, the GPScoordinates of where the photo was taken (pure evidentiary gold inmany cases). This metadata is calledExif (exchangeable image file for-mat), and it’s a standard that speci-fies formats for files recorded bydigital cameras. None of this infor-mation is added by the user at thetime of file creation. As you can see,the information could be extremelyvaluable, especially in litigation.

Since we’ve established thatmetadata does exist in digital imagefiles, should you care? It dependson whether you are the originatoror the recipient of the information.The metadata could be extremelydangerous if revealed throughsocial media channels, especially if the user is unaware of the conse-quences. Here’s a “real world”example. Adam Savage is one of the hosts of the popular scienceprogram, MythBusters, on the

Discovery Channel. He posted apicture of his automobile parked infront of his house on Twitter. Eventhough Adam is a “science” guy, heapparently didn’t know or simplyforgot that his photo revealed moreinformation than the fact that hedrives a Toyota Land Cruiser.

Embedded in the picture was ageotag, which provided the latitudeand longitude of where the photowas taken. Since he announced,“Now it’s off to work,” a burglarwould know that he was not athome, and the geotag would alsopinpoint where he lived. Adam certainly dodged a bullet.

Then there’s the famous storyof the leaked Harry Potter and theDeathly Hallows book. Someonetook a digital photo of each andevery page and posted the entirebook on BitTorrent networks suchas the Pirate Bay. Lucky for thephotographer(s) they haven’t beencaught, but they sure left behind alot of electronic breadcrumbs. Themetadata tells us that the camera he (we suspect a he since part of hishand and fingers were in many ofthe photos) used was a Canon EOSDigital Rebel 300D camera runningfirmware version 1.0.2. The cameraserial number is 0560151117.Canon identified the camera asbeing three years old, and it hadnever been serviced. We’re sure

that the camera is at the bottom of some river by now since it couldlead the authorities to the owner.

Probably the most famous Exif story is that of John McAfee.While on the run from authoritiesin Belize in connection with a mur-der investigation, he allowed a jour-nalist from a shady website to take a photo of him, which was thenposted on the website completewith its Exif data. Turned out hewas in Guatemala, where he waspromptly detained and laterdeported to the United States.

For those of you who care toknow (and it seems everyone does),photos that are posted to Facebookor Twitter currently are stripped oftheir Exif metadata. On the otherhand, Google+ preserves it.

We have many more metadatastories, but you get the picture [badpun]. Digital image metadata is notreadily viewable by the casual view-er. Perhaps that is the reason whywe still find a plethora of metadatain the electronic evidence that weanalyze for our cases. So how doyou identify what metadata exists in the electronic file, and is there a way to clear it out?

Viewing the metadata requiresthat you open the digital image in a piece of software that can readilyshow you the metadata values. You

TEC

HN

OLO

GY

Metadata in digital photos: Should you care?


By Sharon D. Nelson and John W. Simek

RG 01-02.14_RG 09.05 2/10/14 11:11 AM

probably don’t even need to spendany money to do so. You can usethe included Windows Live PhotoGallery or Windows Photo Viewerif you are running Windows 7.Once the file is open, just go to File,then Properties to see a lot of themetadata values, including GPSlocation information if it exists.

But what if you don’t want to distribute the Exif data with thefile? How do you get rid of it or at least change it? The function tomodify the data as well as remove it is included in your Windowsenvironment. If you right click on a file and select Properties then theDetails tab, you have the opportu-nity to change or delete much ofthe embedded metadata. There is even a link at the bottom of thepanel that will “Remove Propertiesand Personal Information.” Youcan use this hyperlink for an indi-vidual file or for all files in a folder.Once you click on the hyperlink,you can create a copy with all possi-ble properties removed or selec-tively remove specific properties.There is also a free Windows utilitycalled QuickFix (http://www.metabilitysoftware.com/products/metability-quickfix.html) that willstrip GPS and other metadata fromthe image file. Give it a try, espe-cially since it’s free and supportsdrag & drop. Finally, you can installa product like Litera’s Metadact-e,which will clean metadata fromdocument files as well as imagefiles.

No matter what approach youtake, don’t just focus on the meta-data in your word processing andspreadsheet files. Those digital pho-tographs can hold valuable nuggetsas well. Just ask John McAfee.

The authors are the president and vice president of Sensei Enterprises, Inc., a legal technology, information securityand digital forensics firm based in Fairfax, Va., 703/359-0700 or www.senseient.com.

© 2013 Sensei Enterprises, Inc.


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During October the IndianaSupreme Court issued oneopinion in a criminal case,

and the Court of Appeals issuednoteworthy opinions involving the amended public intoxicationstatute, domestic battery for extra-marital relationships, late amend-ments to habitual allegations,resisting law enforcement after an improper stop by police, and newly discovered evidence.

Resentencing options for a new trial judge

In an opinion issued in June,the Indiana Supreme Court found a sentencing order did not identifythe reasons for consecutive sen-tences and remanded for prepara-tion of a new sentencing order“without a hearing.” Bowen v. State,988 N.E.2d 1134 (Ind. 2013). Thedefendant petitioned for rehearing,noting in part that the trial judgewho previously sentenced him was no longer on the bench. TheIndiana Supreme Court grantedrehearing to expand its remandoptions as follows:

(1) issuing a new sentencing orderwithout taking any further action,(2) ordering additional briefing onthe sentencing issue and then issuinga new order without holding a newsentencing hearing, or (3) ordering a new sentencing hearing at whichadditional factual submissions areeither allowed or disallowed and then issuing a new order based on the presentations of the parties.

Bowen v. State, 2013 WL 5884073(Ind. Oct. 31, 2013) (quotingTaylor v. State, 840 N.E.2d 324(Ind. 2006)).

Public intoxication conviction reversed

In response to Moore v. State,949 N.E.2d 343 (Ind. 2011), thepublic intoxication statute wasamended in 2012 to require beyondintoxication in a public place thatthe defendant:

(1) endangers the person’s life;

(2) endangers the life of another person;

(3) breaches the peace or is in immi-nent danger of breaching thepeace; or

(4) harasses, annoys, or alarmsanother person.

Ind. Code §7.1-5-1-3(a).

Holbert v. State, 996 N.E.2d396 (Ind. Ct. App. 2013), provides a good summary of the relativelysparse published decisional lawapplying the amended statute.There, a woman called 9-1-1 afterseeing a man twice cross her back-yard and then enter her neighbor’sgarage. In reversing the publicintoxication conviction, the Courtof Appeals noted that the womanhad been alarmed by the defen-dant’s behavior on private – notpublic – property, and there was no suggestion that he placed him-self in danger by his public conductof walking down a sidewalk. Id. at 402.

Domestic battery for extramarital relationships

In Bowling v. State, 995 N.E.2d715 (Ind. Ct App. 2013), the Courtof Appeals rejected the argumentthat a defendant married to oneperson could not be convicted ofdomestic battery involving anotherperson under the “living as if aspouse” provision of Indiana Codesection 35-42-2-1.3. The individu-als had been involved in a romanticrelationship for two years and “hadlived together off and on, once for

as long as four to five months.” Id. at 716. The court reasoned thatother subsections of the statuteallow domestic battery chargesagainst many people, including former spouses and individualswith a child in common. Id. at 718.Moreover, the court concluded thatapplying the statute to extramaritalrelationships does not broaden itsintended scope, as long as the rela-tionship falls within the living-as-if-a-spouse requirement.

Too late to amend habitualoffender allegation

Indictments and informationsmay be amended by the State in anumber of circumstances outlinedin Indiana Code section 35-34-1-5.Amendments are always permissi-ble for immaterial defect, and sev-eral examples are listed, includingthe catch-all category of “any otherdefect which does not prejudice thesubstantial rights of the defendant.”I.C. 35-34-1-5(a). Indiana decision-al law has explained:

A defendant’s substantial rightsinclude a right to sufficient noticeand an opportunity to be heardregarding the charge; and, if theamendment does not affect any par-ticular defense or change the posi-tions of either of the parties, it doesnot violate these rights. Ultimately,the question is whether the defen-dant had a reasonable opportunity to prepare for and defend against the charges.

Nunley v. State, 995N.E.2d 718, 723 (Ind. Ct.App. 2013) (quotingGomez v. State, 907N.E.2d 607, 611 (Ind. Ct.App. 2009)). In Nunleythe State originally listedprior convictions for theftand possession of cocaineas the predicate offenses.On the day after the jurywas empaneled, the Statemoved to amend the

CRIM

INA

L JUSTIC

E NO

TES 10/13Public intoxication, domestic battery, other holdings

By Prof. Joel M. Schumm

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



RG 01-02.14_RG 09.05 2/10/14 11:11 AM

information to remove the posses-sion conviction because it did notqualify under the habitual statute.Id. at 722 & n.1. Defense counselobjected, but the trial court allowedthe State to replace the possessioncharge with additional theft chargesand continued the trial for six daysto allow the defendant to preparehis defense. Id. at 722.

The Court of Appeals reversed,finding a violation of Nunley’s sub-stantial rights under subsections(a), (b) and (c) of the statute.“[T]he amendment drasticallychanged Nunley’s available defensethat the State had not alleged con-victions that would support anhabitual offender finding,” whichwas no longer available to himunder the amended information.Id. at 723. As to subsection (e), the Court of Appeals noted that theState had admitted at the time ofthe amendment that it was not sup-ported by “good cause.” Id. at 725.Finally, applying subsection (e), thecourt concluded the defendant didnot waive the issue for appeal byfailing to request a continuance,noting the trial court did not givehim a chance to request a continu-ance after the trial court granted themotion to amend and before grant-ing a continuance on its ownmotion. Id.1

Resisting law enforcement issue headed to IndianaSupreme Court

In Griffin v. State, 997 N.E.2d375 (Ind. Ct. App. 2013), a dividedpanel reversed a conviction forresisting law enforcement becausethe State offered no evidence orprobable cause or articulable suspi-cion that would have warranteddetaining a man who walked awayafter police told him to stop. JudgeBailey dissented, relying on Cole v.State, 878 N.E.2d 882, 886 (Ind. Ct.App. 2007), which held “the rule inour State is that even if a police offi-

cer does not have reasonable suspi-cion to stop a defendant, the defen-dant has no right to flee when theofficer orders him to stop.” Griffin,997 N.E.2d at 383.

Not surprisingly, in January2014, the Indiana Supreme Courtgranted transfer in Griffin to resolvethis conflict. Transfer has also beengranted in another case involvingthe same issue, which was cited bythe majority in Griffin. See Gaddiev. State, 991 N.E.2d 137 (Ind. Ct.App. 2013), trans granted.

No retrial for newly discovered evidence

Indiana courts have longrequired defendants seeking a newtrial based on newly discovered evidence to prove the followingnine elements:

(1) the evidence has been discoveredsince the trial; (2) it is material andrelevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompe-tent; (6) due diligence was used todiscover it in time for trial; (7) theevidence is worthy of credit; (8) itcan be produced upon a retrial of thecase; and (9) it will probably producea different result at retrial.

Taylor v. State, 840 N.E.2d 324,329-30 (Ind. 2006).

In Dickens v. State, 997 N.E.2d56 (Ind. Ct. App. 2013), the peti-tioner in a post-conviction pro-ceeding challenged his murder con-viction from a 1997 crime based on the 2004 National ResearchCounsel (NRC) report that estab-lished comparative bullet leadanalysis (CBLA) conducted by the FBI was not reliable. The post-conviction court agreed that theNRC report satisfied the first eightrequirements for a new trial. Id. at61 n.3. Although it concluded thetestimony about CBLA would notlikely have been admissible at trialin light of the NRC report, Dickensdid not establish the ninth require-ment that the exclusion of the

CBLA evidence made it probablethat a different result would be pro-duced at retrial. Id. at 61. TheCourt of Appeals affirmed that rul-ing, concluding the State had pro-duced “overwhelming evidence ofDickens’ guilt,” including eyewit-ness testimony from the shooting,evidence of Dickens’ actions imme-diately after the shooting, andunchallenged forensic evidence thatthe bullets were shot from the samefirearm. Id. at 61-62. �1. In December, the Court of Appeals issued

an opinion granting the State’s petition forrehearing, which argued that the remedy for a late-filed amendment should be remand tothe trial court for proceedings on a habitualoffender sentence enhancement, rather thanthe reversal the court ordered. Nunley v. State,2013 WL 6658189 (Ind. Ct. App. Dec. 18,2013), trans. pending. The court affirmed itsoriginal opinion, reasoning that “[b]ecause theState’s original habitual offender allegationfailed to list appropriate predicate offenses,there would be nothing to address on remandwithout an amendment to the allegation.”

CRIMINAL JUSTICE NOTES 10/13 continued from page 41


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to listen to the gentle sound ofwater trickling through limestone,taking a short hike to a waterfall.We took moments to enjoy the car-pets of wildflowers that painted theroadside with Monet-like splotchesof purple, yellow and white on aliving canvas of rich deep green.

As we traveled, Steve and I never missed a chance to talk to people we met along the way. In Tennessee, there was Scooter.That’s the only name we ever got.For more than 20 years, Scooterand his wife rode all across thecountry on their Harley-Davidson.A decade ago she died in a car acci-dent. After her death, he removedthe passenger seat and foot pegsfrom the bike. Now he rides thetwisty mountain back roads byhimself, his fishing pole strapped to the side of the bike and his wife’swedding ring on a chain around his neck.

In North Carolina, there wasGreg. He lost his leg to MRSA andwas awaiting a prosthetic limb. Hetold us that what kept him going,what motivated him, through allthe painful rehabilitation was thethought of getting back on hismotorcycle, to again feel the roadbeneath him, riding the Blue RidgeParkway.

In Virginia we met a couplefrom Colorado. In their late 70s,they were on a month-long trip toride places in the east – places theyhad never been. With a twinkle, thewife explained that they packed twopairs of jeans and enough under-wear and shirts for a week betweenlaundry stops. She commented thatshe no longer carried a makeupbag. As long as she had good bootsand rain gear, she was content.

And then there was the bear.

After a morning of strugglingon the Parkway through dense fog and howling wind, we foundourselves under the clouds in

a steady rain. I was riding lead.From the deep roadside woods, a brown bear strolled onto theroad. Doe-de-doe.

My brakes locked, and my bikefishtailed on the rain-slick pave-ment. I immediately released thebrakes. The bear, apparently hear-ing my skid, turned and looked atme over his shoulder. His eyes asbig as Oreos, he was as surprised tosee me as I was to see him. Then hedashed across the road – right infront of me.

I stayed off the brakes, steeredhard and dirt-tracked my fullyloaded cruiser, sliding my footalong the wet pavement. It wasclose – VERY close. I could havekicked the bear in the butt as I wentby. Steve, following close behind,thought I actually hit the bear.Heading down the road, adrenalinrushing, I couldn’t help but laughinside my helmet. And Steve and I had a story to remember.

As our trip neared its end, westopped for lunch near Zanesville.We reflected on our journey andthe fulfillment of Steve’s 40-yeardream. At age 68, Steve knew therealities. “I’ll never make this tripagain,” he said to me, his tone veryserious. I asked if the trip lived upto his dream. Steve broke into aninfectious full-face smile that hisfriends knew so well. “It was betterthan I ever imagined,” he said.

Less than three weeks later, he was gone.

A motorcycle crash took hislife. Efforts to save Steve revealedthat pancreatic cancer already rav-aged his body, something Steve didnot know. Cancer would have takenhim within months, maybe weeks,had the accident not intervened. He would not have survived tomake the return trip to NewOrleans.

Somehow, I think Steve wouldhave preferred the way it happenedto a lingering death in a hospiceunit.

None of us know what thefuture holds, how long we have toexperience the adventures of life.Steve’s family found their greatestcomfort in their faith and in thefact that Steve fulfilled his longtimedream.

I don’t know where the futurewill take me – how far or for howlong. But I know it will be on somewinding back road, a camera in mysaddlebag, a notebook in my pocketand the compass in my head point-ing north.

It will be on two wheels. I willmiss having Steve with me. But in away, he will be. �Steve Terrell practices law inIndianapolis. He can be reached byemail, [email protected].

FAIR COMMENT continued from page 46


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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

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

FLORIDA ANCILLARY PROBATE

in most counties. Call collect, Pavese

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

Gennaro, 4635 S. Del Prado Blvd.,

Cape Coral, FL 33904.

INSURANCE DEFENSE & coverage.

AV-rated northwest Indiana insurance

defense firm with over 75 years of com-

bined experience in insurance practice

is available to work with insurance

companies on coverage issues and to

represent insureds in litigation through-

out northern Indiana. Huelat Mack &

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

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

3253, [email protected].

LOCAL COUNSEL, southwestern

Indiana. Vanderburgh, Posey, Gibson,

Pike, Dubois, Warrick, Spencer, Perry,

Knox, Daviess. Circuit/Superior Court,

Bankruptcy/District Court, Sheriff Sales,

Settlement Conferences. Erin Berger,

812/250-6744, [email protected]

STEVE TUCHMAN, IMMIGRATION.

Experienced practitioner for statewide

referrals, consultation and co-counsel

positions. Lewis & Kappes, P.C.,

317/639-1210, STuchman@

Lewis-Kappes.com

VETERANS DISABILITY. Accepting

referrals of veterans' disability, military

Medical and Physical Evaluation

Boards, Courts Martial, military

discharge upgrade and Boards for

Correction of Military Records cases

throughout Indiana and across the

country. Bosley & Bratch, 800/9536224,

[email protected],

www.lawyers4veterans.com.

WORKER’S COMPENSATION.

Indianapolis attorney Charles A. Carlock

seeks referrals on worker’s compensa-

tion cases statewide. Tele., 317/573-

5282 or 866/573-5283.

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

LONG-TERM DISABILITY. Attorney

Charles A. Carlock seeks referrals

on claims for long-term disability

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

or 866/573-5283.

SpecialServices

OSHA SAFETY EXPERT WITNESS

in construction and industry accidents.

U.S. Dept. of Labor Authorized Trainer.

Former OSHA inspector. OSHA Safety

Expert, Inc., contact Wendell Rust

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

[email protected]

COAL, OIL, GAS – Leases, Surface

Use Agreements, Title Opinions,

Due Diligence, Royalty Determination.

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

Court St., Sullivan, IN 47882; phone,

812/241-1480.

MISSING HEIRS & WITNESSES

located, intestate heirs verified.

Complete family lineage establish-

ment. Mark E. Walker & Company,

LLC – Indiana Private Investigator

Firm; 800-982-6973;

www.MissingHeirsLocated.com

STOCKBROKER/SECURITIES FRAUD.

Former Indiana Securities Commission-

er who works with investors and attor-

neys in brokerage disputes. Available

for referrals, consulting, co-counsel or

expert witness affiliations. No charge

for initial evaluations. Maddox,

Hargett & Caruso, Mark E. Maddox,

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

HEALTH CARE PROVIDER license

defense. Experienced nurse attorney

is available to represent nurses, physi-

cians, pharmacists, dentists, veterinari-

ans and other licensed health care pro-

fessionals before the various licensing

boards or to respond to an attorney

general’s office license investigation.

Lorie A. Brown, RN, MN, JD,

[email protected], 317/465-1065.

Miscellaneous

OFFICE SPACE: Attorneys located in

the Gold Building at 151 N. Delaware

St. in downtown Indianapolis looking

to share extra office space. Secretarial

services available. Possible referrals.

Low rent. Reply to [email protected]

and reference “Gold Building” office

space.

PRIME OFFICE SPACE FOR RENT –

10th floor, beautiful, prestigious

Keystone Crossing address available

with all the amenities (receptionist, high-

speed Internet, multifunction copier,

kitchenette, 3 conference rooms).

Room for 2-3 attorneys with support

staff. Surround yourself with seasoned

legal professionals. Interested or

for more information, contact Rachel

Milner, [email protected]

or 317/571-1101.

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

ISBA members40¢ per word, $10 minimum

Nonmembers60¢ per word, $15 minimum

RG 01-02.14_RG 09.05 2/10/14 11:11 AM

FAIR

CO

MM

ENT

There and back: a last motorcycle rideBy Stephen Terrell

a couple of Abita beers at Lafitte’s Blacksmith Shop, a place nearly unchanged for two centuries.

On the way home, we were already planning a return trip in 2014.

Over Memorial Day weekend, Steve and his wife,Diana, who rides her own motorcycle, joined with twofriends to ride the remnants of Route 66 from Illinoisto Amarillo. They found pieces of Americana every-where. They were chased home early by a storm frontthat produced the deadly tornadoes in Oklahoma, but they loved every minute of it.

The summer lodestone was the trip to the BlueRidge Parkway and the Skyline Drive that runs throughthe heart of Shenandoah National Park. We added theTail of the Dragon to the itinerary, an 11-mile stretchof U.S. 129 with 318 turns that draws motorcycles fromaround the country.

So on the Thursday before Labor Day, our bikespacked, Steve and I hit the road. The trip took six daysthrough nine states. We traveled 1,763 miles, encoun-tering sun, fog and rain. I took more than 600 photos.

We traversed a seemingly endless twisting ribbonof blacktop. We took our time, stopping at overlookswith commanding vistas, pausing along the roadside


Ayear ago, in the early months of 2013, myfriend, Steve Winters, and I met at a local pub in Indianapolis. We had taken two

three-day motorcycle trips the previous summer, and Steve wanted to discuss plans for the upcomingriding season. At age 68, he knew that age was gallop-ing up on him – on both of us, really.

Steve had two trips in mind. One was riding the legendary Route 66 highway, the pre-interstatelifeblood of the nation that still exists in pieces of two-lane blacktop and mostly abandoned diners and motelsscattered from Illinois to New Mexico. The second wasa dream Steve had for more than 40 years – riding thelength of the Blue Ridge Parkway.

I suggested a trip to my favorite city for the NewOrleans Jazz Fest, and Steve was quickly all in. Severelate-April weather necessitated a last-minute change inour plans, and we traveled to the Big Easy by car. Evenwithout motorcycles, it was a magnificent adventure.Steve had never been to New Orleans, the City thatCare Forgot, a place that is almost my second home. I introduced Steve to the delights of my favorite city on earth – the St. Charles Streetcar, Natchez Steamboat,beignets, crawfish, gumbo, street music, Hurricanes(the rum-cocktail kind) and Pat O’Brien’s piano bar.We ended the trip on a quiet, rainy Sunday night over

Steve Winters & Steve Terrell at the Laurel Knob Overlook, Blue Ridge Parkway, N.C.


RG 01-02.14_RG 09.05 2/10/14 11:11 AM

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res gestae - jan/feb 2014

Documents

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