APRIL 2021

FEATURING: THE , FACTIONS, AND THE RULE OF PLUS Discussing Racism and Inequities with Leaders of Supreme Court and Indiana State Bar Association

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COVER STORY

10 THE CONSTITUTION

The Constitution, Factions, and the Rule of Law By Judge Edward W. Najam, Jr. CONTENTS

STAFF PUBLISHER STATEMENT: Assistant CLE Director: Executive Director: Res Gestae (USPS–462 500) is published Christine Cordial • [email protected] Joe Skeel • [email protected] monthly, except for Jan/ Feb and Jul/Aug, by the Communication Coordinator: Legislative Counsel: ISBA. Periodicals postage Jenna Parsons • [email protected] Paje Felts • [email protected] paid at Indianapolis and additional mailing offices. Communication Manager: Membership Coordinator: POSTMASTER: Send Kelsey Kotnik • [email protected] Julie Gott • [email protected] address changes to Res Gestae, c/o Director of CLE: Office Manager: ISBA, One Indiana Square, Kristin Owens • [email protected] Kimberly Latimore Martin • [email protected] Suite 530, Indianapolis, Indiana 46204. Director of Finance & Operations: Outreach Coordinator:

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3 INBAR.ORGINBAR.ORG •• APRIL 2021 INDIANA STATE BAR ASSOCIATION The Indiana State Bar Association One Indiana Square, Suite 530 Indianapolis, IN 46204 empowers members to thrive professionally and personally through 800-266-2581 • www.inbar.org advocacy, education, and connections.

COLUMN

19 SOLO & SMALL FIRM CONFERENCE 25 SMALL FIRM PRACTITIONERS

Featuring stories of resilience, Somali pirates, What can solo, small firm practitioners learn and serial killers from pilots? By RG Staff By David Frangos Presented by the ISBA GP, Solo & Small Firm Section

RG STAFF: EDITOR / JENNA PARSONS [email protected] COPYEDITOR / REBECCA TRIMPE [email protected] GRAPHIC DESIGN / BURKHART MARKETING PARTNERS [email protected] WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS / COLIN FLORA & PROF. JOEL SCHUMM [email protected] ADVERTISING / KELSEY KOTNIK [email protected]

Opinions expressed by bylined articles are those BOARD OF GOVERNORS 10th District: of the authors and not necessarily those of the 1st District: Adrienne Rines Hammond, Marion ISBA or its members. ©2021 by the Indiana State Bar Association. All rights reserved. Jacquelyn S. Pillar, Crown Point 11th District: Reproduction by any method in whole or in part 2nd District: Jon Laramore, Indianapolis without permission is prohibited. Zachary Lightner, Auburn 11th District: 3rd District: Angka E. Hinshaw, Indianapolis OFFICERS Mag. Cristal Brisco, Mishawaka 11th District: President: 4th District: Charles F. Miller, Indianapolis Michael E. Tolbert, Gary Douglas R. Adelsperger, Fort Wayne At Large District: President Elect: 5th District: Elizabeth A. Bellin, Elkhart Clayton C. Miller, Indianapolis Kyle B. Mandeville, Lafayette At Large District: Vice President: 6th District: Freedom Smith, Indianapolis Amy Noe Dudas, Richmond Nathan “Scott” Smith, Noblesville Past President: Secretary: 7th District: Leslie Craig Henderzahs, Noblesville Renee Ortega, Hammond Emily Storm-Smith, Indianapolis House of Delegates Chair: Treasurer: 8th District: Michael Jasaitis, Crown Point James Dillon, Merriville Laura “Katie” Boren, Evansville House of Delegates Chair Elect: Counsel to the President: 9th District: Hon. Holly M. Harvey, Bloomington Shontrai Irving, Hammond Gregory “Greg” Fifer, Jeffersonville Young Section Chair: Sara McClammer, Indianapolis

4 RES GESTAE • ISBA DEPARTMENTS

7 PRESIDENT'S PERSPECTIVE 27 ETHICS

14 ANNALS OF LAW 30 RECENT DECISIONS

16 OPEN CONVERSATIONS 38 CLASSIFIEDS

22 CRIMINAL JUSTICE NOTES CONTENTS

CONTRIBUTORS

Michael E. Tolbert Angka Hinshaw Hon. G. Michael Witte Partner Attorney Retired Tolbert & Tolbert Marion County Public Defender [email protected] [email protected] [email protected]

Judge Edward W. Najam, Jr. Elizabeth Houdek Maggie L. Smith Judge Indiana Public Defender Member Indiana Supreme Court Indiana Public Defender Council Frost Brown Todd [email protected] [email protected] [email protected]

Norm Tabler David Frangos Brock C. Bucher Retired Partner Attorney Associate [email protected] Frangos Legal, LLC Frost Brown Todd [email protected] [email protected]

Justice Steven David Justice Indiana Supreme Court

Contributors [email protected]

5 INBAR.ORGINBAR.ORG • • APRIL 2021 Indiana Work Injury Attorneys

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INDIANAPOLIS 317.569.9644 EVANSVILLE 812.425.3180 TOLL FREE 800.809.3776 KLEZMERMAUDLIN.COM 6 RES GESTAE • ISBA President's Perspective Music, Lawyers, and Riots: The Blurred Lines of the First Amendment and Professional Conduct

By Michael E. Tolbert

PRESIDENT'S PERSPECTIVE

n January 6, 2021, protestors office. Shockingly, some lawyers were also marched to Capitol Hill where involved. OCongress was meeting to certify as the 46th President of the To date, one of the most embarrassing . While the House and experiences I have had as President of Senate convened to confirm Biden’s the ISBA was fielding phone calls from Electoral College victory, an angry colleagues, friends, and news media about mob was gathering outside the Capitol. the participation of some Indiana lawyers Before it was all over, about in the assault on the Capitol 800 rioters forced their way building. Apparently, some inside. lawyers were brazen enough to post about their potential The aftermath was not pretty. involvement on social media. At least 138 law enforcement In all fairness, Indiana was officers suffered injuries not the only state to receive a ranging from minor bruising professional black eye. A North to major lacerations. Five Texas , Paul Davis, lost people died. his job after a video surfaced of his participation in the Many professionals mayhem at the Capitol. Many participated in the assault, individuals lost their jobs for including a prominent participating in the assault and lawmaker. Derrick Evans, a former have since been charged criminally. House member in West Virginia, was charged with entering a restricted area While the world watched the events of the U.S. Capitol after livestream video unfold in horror, I searched to find the footage was uncovered that showed him right words to explain to my family, with rioters. He would later resign from colleagues, and news reporters just how

7 INBAR.ORG • APRIL 2021 any lawyer could be connected to were injured or killed after the song former President Trump just before the Capitol assault. How did we get was posted to social media. In 2019, protesters stormed the Capitol here? In a country that believes the U.S. Supreme Court declined building. Democrat impeachment in the “safety valve theory” and to take Knox’s case which would managers said Trump also indicated discourages prior restraint on have offered much needed clarity “you’ll never take back our country speech, how could this happen? about what is considered “true with weakness. You have to show Does the First Amendment provide threats” outside the confines of First strength, and you have to be strong.” us all the same, unabridged right Amendment. to share our views - even if those The impeachment managers laid views are unpopular? Can the CAPITOL RECORDS: MUSIC out their case: For months before Indiana lawyers that participated TO DRIVEBY protesters stormed the Capitol, face discipline under our Rules of Trump brutally criticized election Professional Conduct for their role in After the tragic events that took place officials for allegedly engaging the assault on the Capitol? These are at the Capitol, a second impeachment in . Despite to the all complicated questions for which contrary, he publicly said the there is no easy answer. election was “rigged.” Trump urged people to “fight” for him and not let THE FIRST AMENDMENT DOES the election be stolen. NOT PROVIDE FORT ‘KNOX’ "Unlike Knox, Trump has PROTECTION not been charged Like Jamal Knox, Trump communicated his message through After being arrested in 2012, criminally for his social media, albeit a different aspiring Pittsburg rap artist Jamal comments leading up platform. Knox used Facebook and Knox wrote a song titled, “F#@% YouTube to get his message out. to the assault." tha .” Ironically, another song Trump used Twitter and rallies to with the same exact title sparked get his message across. Trump used similar controversy when legendary tweets to inform his followers about rap group NWA produced the track events, specifically about the rally back in 1988. Much like the NWA trial of former President Donald just before the Capitol building was rendition of “F#@% tha Police,” Trump began on February 9, 2021. stormed. Unlike Knox, who appeared Knox’s version of the song was just Trump was charged with incitement to upload only one song on an as controversial and caught the of insurrection. Like Knox’s lawyers, isolated day, Trump’s communication ear of local authorities. This came Trump's lawyers mentioned he was steady all the way up to the after the rapper posted the song had the right to express his opinion attack on the Capitol. on his Facebook page and YouTube on the election results and other account, disparaging the Pittsburgh matters based on the protections On February 13, 2021, the Senate police officers he felt had wronged provided by the First Amendment of voted to acquit Trump of inciting him. Posting the song led to Knox’s the U.S. Constitution, which protects an attack on the Capitol. Unlike immediate arrest and subsequent freedom of speech. Technically, this Knox, Trump has not been charged conviction. defense could only apply in a legal criminally for his comments leading proceeding, not an impeachment up to the assault. In 2013, Knox was found guilty of trial. The sole issue presented at terroristic threats and conspiracy the impeachment proceeding was Taking the Work Uniform Off to commit terroristic threats. whether Trump violated his oath Knox’s arguments that his song of office by inciting insurrection. Considering recent events and some was speech protected under the Nevertheless, the First Amendment lawyer participation in the storming First Amendment were rejected. was the elephant in the room. of the Capitol, age-old debates The court hearing Knox’s case held about privacy have resurfaced. The that his song amounted to a “true "If you don't fight like hell you're not lawyers involved in the events at the threat.” Knox was sentenced to time going to have a country anymore" Capitol were not operating in their in prison for the song. No police were some of the words uttered by professional capacity. These lawyers

8 RES GESTAE • ISBA were on their own private time. To act that reflects adversely on the transform into something other the extent they engaged in peaceful lawyer's honesty, trustworthiness or than a legal demonstration, they protest, their activity would be fitness as a lawyer in other respects. should immediately leave the scene. protected by the First Amendment. Rule 8.4 (d) also provides that it That is most likely the best way to However, as we learned on January is professional misconduct for a swim the murky waters of the First 6, things can quickly escalate. A lawyer to engage in conduct that Amendment and the Indiana Rules peaceful protest can turn into a is prejudicial to the administration of Professional Conduct. riot in a matter of seconds. The of justice. Even if a lawyer has the question always raised is whether cover of the First Amendment, that That, and never become a rapper. lawyers can ever truly be “off the still may not be enough to shield clock” and shielded from charges of them from their obligations under professional misconduct arising out the Indiana Rules of Professional of private activity. A close reading Conduct. of the Indiana Rules of Professional Conduct would suggest the answer to The lines drawn by the First this question is no. Amendment and the Indiana Rules of Professional Conduct are not always Whenever the Indiana Rules of clear. However, in the context Professional Conduct are discussed, of private activity engaged in by lawyers often overlook the most lawyers, Preamble 5 may be the most important part of the rules – the helpful. We should always strive to preamble section. This section has conform to the requirements of the good information and can provide law in business and personal affairs. much needed guidance. Preamble 5 If a lawyer sees a peaceful protest states:

“A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process.”

In conjunction with Preamble 5, Rule 8.4 provides lawyers with guidance relating to conduct that may occur off the clock. Rule 8.4 (b) provides that it is professional misconduct for a lawyer to commit a criminal

9 INBAR.ORG • APRIL 2021 THE CONSTITUTION, FACTIONS, AND THE RULE OF LAW 1

10 RES GESTAE • ISBA FEATURE

By Judge Edward W. Najam, Jr.2

n 1878 British Prime Minister William Gladstone Iwrote: [T]he American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.3

He was right. Our Constitution was no accident. The Founders were an extraordinary gathering of intellectual firepower. They were thoughtful, well-educated men familiar with the great 17th and 18th century English and French political theorists, and they were motivated by the highest purpose. They were students of history and political philosophy, students of government, and students of human nature. And in the summer of 1787—just as Prime Minister Gladstone later said—they discovered a recipe for the most remarkable system of self-government ever created.

The Constitutional Convention imagined a new form of government that was a hypothetical. It has often been told that when the convention adjourned, a woman confronted Benjamin Franklin and asked him, “what have we got[,] a republic or a monarchy[?]” Franklin responded, “A republic if you can keep it.”4 From that comment our former Governor Mitch Daniels fashioned the title for his 2011 book Keeping the Republic: Saving America by Trusting Americans as did Justice Neil Gorsuch for his 2019 book A Republic, If You Can Keep It. And Christine Barbour and Gerald Wright, on the Indiana University Bloomington political science faculty, are co- authors of an American government textbook entitled, Keeping the Republic: Power and Citizenship in American Politics, now in its 10th edition.

Preservation of the rule of law has been our nation’s response to Benjamin Franklin’s challenge. The rule of law has been the glue, the common denominator, the – whichever metaphor you prefer – which has enabled us in Benjamin Franklin’s words to “keep the Republic” and preserve our representative democracy.

The Constitution was designed to compensate for human nature and contain political factions as threats to the rule of law. But the Constitution is not self-sufficient. It

11 INBAR.ORG • APRIL 2021 requires assistance from an engaged and is based on respect for the are openly debated, enacted, and citizenry, a traditional free press, and individual. This contrasts with the published, and fairly administered an independent judiciary. legal systems of totalitarian regimes by officials who are accountable that do not rely upon the consent of both to the law and to the people THE RULE OF LAW the governed and do not respect the who elected them. individual. The rule of law is the condition The rule of law in America is derived for all worthy human The rule of law is, of course, not from English legal tradition and endeavor and a well-ordered confined to the relationship between traces its origins to the , and just society. The rule of law the citizen and the state. The rule the great charter issued in 1215 by is the essential condition for the of law also applies to the countless King John of England 806 years ago. preservation of life, liberty, and private encounters and transactions In Chapter 39 of the Magna Carta, property, or as Thomas Jefferson that occur every day between King John promised his barons that, wrote in the Declaration of individuals. The rule of law is the Independence, “life, liberty and the invisible hand that both guarantees No free man shall be seized or pursuit of happiness.”5 our civil rights and brings order imprisoned, or stripped of his rights and predictability to our private or possessions, or outlawed or exiled, Jefferson continued that, “to secure relationships. or deprived of his in any these rights, Governments are way, nor will we proceed with force instituted among Men, deriving their The rule of law is, as John Adams against him, or send others to do so, just powers from the consent of the wrote in the Massachusetts except by the lawful judgment of his governed.”6 Thus, the rule of law Constitution, a government of equals or by the law of the land.8 requires the consent of the governed and not of men7. It means that laws

12 RES GESTAE • ISBA In the Magna Carta, the term “the Constitution. These historic articles law of the land” meant “the rule of “In the compound explain the reasoning behind the law” and included “due process structure of the Constitution and of law.”9 republic of America, the comprise a magnificent treatise power surrendered by on the theory of representative The rule of law includes both government. substantive legal rights and the the people is first procedural rights, or due process, divided between two James Madison, a Virginia delegate which secures them. Of course, to the Constitutional Convention, substantive rights and procedural distinct governments” is generally regarded as the father rights are closely intertwined. A of the Constitution and the single declaration of substantive rights complaint against the exercise best informed and most articulate would be meaningless without of arbitrary power by a single authority for interpreting it.11 There corresponding procedural rights to individual and for his abuse of were 55 delegates, and Madison ensure them. that power. Thus, the rule of law and George Washington—who was very much on the minds of the chaired the convention—were The “due process” guarantee appears Founders. the only two delegates who later in the Fifth Amendment, which became president.12 In Federalist applies to the federal government, There was a spirited national debate No. 51, Madison described the task and again in the Fourteenth over ratification of the proposed which confronted the Constitutional Amendment, which applies to Constitution. Three of the Founders, Convention as follows: “In framing the states. Both Amendments Alexander Hamilton, James Madison, a government which is to be state that “no person shall be and John Jay, wrote 85 articles deprived of life, liberty or property known as The Federalist Papers Continued on page 32... without due process of law.”10 An to persuade the states to ratify the equivalent provision appears in Article 1, Section 12, of the Indiana Constitution. INDIANO LAW GROUP LLC

The Magna Carta’s recognition of “the law of the land” was a turning point in the history of Western civilization. The legacy of the Magna Carta surrounds us. For many years, and until recently, the Magna Carta was the first document in the hardbound volume of the Indiana Code.

The Magna Carta was and remains significant because it declared that the law of the land and the rule of law would control a man’s life, liberty, and property rather than the arbitrary and capricious whim of the king.

THE FRAMING OF THE CONSTITUTION

The Declaration of Independence in 1776 was largely a bill of particulars against King George III, a detailed

13 INBAR.ORG • APRIL 2021 ANNALS OF LAW

By Norm Tabler

The Difference Between Speaking a Lie and Texting One

antwon Davis now knows the difference between speaking a lie and texting one. Sadly, he learned it Sthe hard way. SANTWON TAKES TIME OFF

Santwon was employed at a Fortune 500 company in Atlanta. At the company’s COVID-19 training program in March 2020, he was delighted to learn that any employee testing positive for the virus would receive paid time off.

14 RES GESTAE • ISBA Santwon telephoned his supervisor days were futile. He was terminated company decided to make a federal to reported that he had tested at the end of the second day. case of it. positive for COVID and would email documentation, including THE STAKES GROW HIGHER FOR THE DEPARTMENT OF JUSTICE quarantine instructions. BOTH SIDES STEPS IN

By telephone the plant manager In normal times, a low-level It took the FBI no time at all to gather requested a copy of the test results employee’s fraudulent claim of sick irrefutable evidence of Santwon’s and reminded Santwon that positive leave costs the company relatively fraud. It took even less time for results would require the plant to little. But the age of COVID is not the Department of Justice to file shut down for cleaning, as well as a normal time. The day of the HR a criminal complaint. Santwon quarantining all employees who had manager’s telephone conversation was indicted for committing had contact with Santwon. and text with Santwon, the plant fraud through interstate wire closed for a thorough cleaning. It communications, i.e., his texts and Santwon emailed a document titled continued to pay the salaries of email. “work/school excuse letter,” reciting the employees who were required that he had been admitted to a to quarantine. The cost exceeded Caught red-handed, Santwon Wellstar hospital on March 20 and $100,000. pleaded guilty, having learned too must quarantine for 14 days. late the difference between speaking In normal times, an employee caught a lie and texting one. SOMETHING LOOKED WRONG falsely claiming paid sick leave faces, at most, firing a risk that Santwon The case is United States v. Davis, Santwon’s letter aroused suspicions. was clearly willing to run. But, N.D. GA. First, the letter didn’t say that again, these are not normal times. Santwon had been diagnosed or Not content with firing Santwon, the treated for COVID. Second, there were no test results. Third, there was no letterhead or signature. Most puzzling of all, the letter said that Santwon had been discharged in November, some four months before his admission date.

A call to the hospital revealed that it did not provide COVID testing and that there was no record of Santwon’s treatment.

Reached by telephone, Santwon told the company’s HR manager that he now had additional symptoms and was back at the hospital for treatment. The manager reminded Santwon of the steps the company would need to take if he tested positive. When the manager texted Santwon for confirmation of their telephone conversation, Santwon texted back, “Okay.”

The company’s repeated efforts to contact Santwon over the next two

15 INBAR.ORG • APRIL 2021 OPEN CONVERSATIONS

By Justice Steven David & Angka Hinshaw

Discussing Racism and Inequities with Leaders of Indiana Supreme Court and Indiana State Bar Association

nlike most years, many people ended 2020 exhausted, defeated and ready for change. Many Uof those individuals are ready to shift gears and recalibrate old ways. These New Year’s resolutions are not focused on recalibrating the physical body, but the mind. 2020 left many, particularly people of color, hurt, betrayed, unheard, and feeling others viewed their lives as dispensable. The list goes on. Although some individuals may feel unheard, there are many who are listening and have been all along. The Indiana State Bar Association with the support of the Indiana Supreme Court premiered Open Conversations: Racism and Racial Injustice. On January 29, 2021, we debuted the live programming part of Open Conversations hoping for an audience of at least 20 to 30 people. We were amazed

16 RES GESTAE • ISBA when the program drew more better to extinguish racism.” After Under the leadership of ISBA than 500 registrants with a waiting issuing the statement, she received President Tolbert, the state bar list. Members of our profession negative and positive comments created an Task Force that demonstrated they were eager to from lawyers and judges. Her is comprised of some of the best hear from our state bar and state response, in essence, was that we legal minds in the state to address court leadership and were hungry must continue the fight for justice inequities within our profession to learn more so they can do better. for all and negative comments would and the legal system. The task force The premier program featured the not curtail the efforts of the Indiana will focus on four areas: civil legal leaders of the legal profession – Supreme Court. aid, policing/prosecuting policies, Indiana Supreme Court Chief Justice legislation, and mentorship/diversity Loretta Rush and Indiana State in the profession. Bar Association President Michael Tolbert.

INDIANAPOLIS ATTORNEY ANGKA HINSHAW KICKED OFF THE PROGRAM THIS WAY:

The death of George Floyd has sparked a powerful social justice movement that hasn't existed since the 1960s. We find ourselves again discussing the victimization and the inequities experienced by people of law These struggles are real and still exist within the legal profession and resonate in other industries. The purpose of these conversations is to enlighten minds of the experiences of people of color within our profession and the laws that govern us as members of our communities. I hope you will leave this conversation with a new perspective that is empathetic of individuals whose experiences are different than your own and for others a renewed strength to continue to achieve.

The discussion began with a dive into Chief Justice Rush’s June 2020 “Statement on Race and Equity” and the thought process leading up to the statement. She said events surrounding that time and the demands for equity were too to grave to ignore and required a response. Her statement was read by many. For marginalized individuals, it was a nod that conveyed “I see you, I hear you, and society must do

17 INBAR.ORG • APRIL 2021 President Tolbert gave an abridged King Jr. The book he read from is So, with that thought in mind, where story of his pathway to the practice Where Do We Go From Here: Chaos do we go from here? It’s up to you. of law and shared some of the or Community. After the formal The feedback from the program has racial barriers he overcame and the program ended, the conversation been astounding. Many practitioners stereotypes that were imposed upon continued with an informal session told us they felt their struggles with him as Black man. He discussed his that was attended by more than 115 inequities had been acknowledged experiences with micro-aggression, judges and lawyers. and substantiated, others felt a term some audience members optimistic that a positive change in were unfamiliar with while others Justice Steven David concluded the our profession is on the horizon, had experienced it numerous times program with a quote from a fellow while others desired to be better throughout their careers. Columbus, Indiana, native, the equipped to understand the subtle industrialist and civil rights tones of racism and how to combat To attempt to capture every aspect J. Irwin Miller: it. The program hosts and organizers of the program in this article would have read all the feedback and all do it injustice – we encourage you “The most important service to the questions posed. For the rest to view it if you haven’t already others is service to those who are of the year, we will give voices of seen it. The beauty of the Open not like yourself.” the unheard a platform to share Conversations program is the ability experiences and have authentic to be authentic, ask tough questions Justice David asked attendees to conversations about racism. The about racism, and provide a platform think about that concept as they left program series will also share the to share experiences. President the program and went about their experiences of different races within Tolbert ended the formal program daily lives. people of color. Join us in an open by sharing some of the lesser-known conversation. writings of Dr. Martin Luther

18 RES GESTAE • ISBA SOLO & SMALL FIRM CONFERENCE, FEATURING STORIES OF RESILIENCE, SOMALI PIRATES, AND SERIAL KILLERS By RG Staff

t this year’s Solo and Small Firm Conference, A we celebrate resilient lawyers. The hurdlers. The pivoters. The prevailers. The solo and small firm attorneys.

The Solo and Small Firm Conference will help you master any challenge thrown your way. You’ll walk away with referrals, practice tips, and a renewed sense of passion for your practice.

This year’s conference will be a hybrid event—both an in-person (at French Lick Resort) and digital experience. The virtual experience gives attendees access to the highly- regarded learning opportunities that the conference has boasted for years, plus is designed to create opportunity for connections that many virtual CLE lack. The in-person experience is for those itching to connect in-person, but who are willing to strictly adhere to health and safety requirements.

REGISTER EARLY FOR BONUS CLE

Those who register early will receive access to additional CLE programs geared to expanding the solo and small firm practitioner’s skillsets.

19 INBAR.ORG • APRIL 2021 Register by the early bird deadline on how to embrace change by of Sam” David Berkowitz and the of April 29. The Bonus CLE will be collaborating with it, and moments “BTK Killer,” Dennis Rader. He provided soon after the conference is of heroism as she describes her has also served as a consultant on concluded. miraculous rescue by the US Navy's the JonBenet Ramsey case, “The SEAL Team VI. West Memphis Three” case and the KEYNOTES Amanda Knox case.

Overcoming Impossible Odds: A John’s longtime partner & co-writer, Story of Resilience and Heroism Mark Olshaker, will moderate Jessica Buchanan, NYT Bestselling the discussion on the evolution of author of 'Impossible Odds' will “We know how important criminal investigative analysis/ share with us her harrowing the in-person Solo & criminal profiling within the FBI and experience of surviving 93 days as the development of investigative a hostage at the hands of dozens Small Firm Conference is tools from the crime scene to the of Somali pirates in a place that to many practitioners.” court room. can only be described as hell. Through her storytelling, she will Note: John & Mark will be joining take us from the point of horrifying us from the east coast and this realization of her initial abduction, presentation will be live-streamed and the subsequent road that led to both in-person and virtual her to realizing she had a unique Inside the MindHunter: An attendees. opportunity for self discovery in the Afternoon with John Douglas midst of chaos. Jessica will share Legendary FBI profiler and founder VIRTUAL EXPERIENCE personal moments of frustrations of the FBI’s Investigative Support and heartbreak, moments of clarity Unit, John is the model for Jack The Solo & Small Firm Conference and triumph, as well as a message of Crawford in the film “Silence has been well-known for the quality inspiration that resonates with every of the Lambs” and Holden Ford of its programming for years. Each single person who has survived a life in Netflix’s “Mindhunter.” Over CLE topic is hand selected by the changing event, regardless of what his 25-year career with the FBI’s conference planning committee it is. Investigative Support Unit, Douglas to ensure its to solo and interviewed hundreds of America’s small firm practitioners. Speakers She will offer tangible takeaways on most notorious killers, from Charles are reviewed and vetted to ensure building resilience, lessons learned Manson and Ted Bundy to “Son they are engaging. Attendees walk away with practical knowledge that they can apply to their practice Matters immediately.

If you have matters in California or referrals, we can help you. Please contact Guy Kornblum or his office for information. • $125 for members. In addition to litigation and dispute resolution services, Guy also • Includes 18 hours of on-demand serves as an expert in legal malpractice and cases relating to insurance claims. CLE and a goodie kit mailed to your home (if registered by April Guy is a native Hoosier and alumnus of Indiana University. He is a member of the Indiana and California bars, and certified in Civil Trial 29). & Pretrial Practice Advocacy by the National Board of Trial Advocacy. • Thursday’s CLE sessions will Guy O. Kornblum A Professional Law Corporation be recorded and shared with 1388 Sutter St., Suite 805, San Francisco, CA 94109 Tel: 415.440.7800 | Fax: 415.440.7898 attendees afterwards. [email protected] • All of Fridays sessions (including Guy O. Kornblum [email protected] keynotes) will be live-streamed for virtual attendees to watch Serious personal injury & wrongful death | Insurance coverage & bad faith | Professional liability | business disputes | General civil litigation in real time, ask questions, and For further discussion, contact David McNamer of counsel to the firm, at [email protected] or participate in the conversation. 317.299.0160. www.kornblumlaw.com

20 RES GESTAE • ISBA • Virtual attendees will have FEATURED CLE CLE/Ethics); Jill Carnell, Indiana access to all CLE sessions Department of Administration , until July 2, allowing them to • Building Client Rapport in a Loretta Olesky, JLAP participate in their preferred Virtual World (1hr CLE); Deann • Maximizing Your Success CLE in real time and watch Farthing, Robinson & Farthing, in Mediation: A Primer for anything they missed LLC Mediators, Lawyers and Parties afterwards. • Tech Tips for a Remote Trial (1hr CME); Derrick Wilson, (1hr CLE); Donna Bays, Bays Law Mattox & Wilson, LLP IN-PERSON EXPERIENCE Office • Litigating in a Divided Nation: • What to Do When the FBI Navigating Opinions and We know how important the in- Knocks on Your Door (1hr Presumptions While Seeking person Solo & Small Firm Conference Ethics); James Watson, Justice (1 hr CLE/Ethics); Claude is to many practitioners. It’s a time Chief Division Counsel, FBI Ducloux, Attorney at Law and to reconnect with colleagues while Indianapolis Office Director of Education, Ethics and developing new connections. We • Mindfulness with Layers: The State Compliance, LawPay are happy to be able to offer an Self Compassionate Solo (1 hr in-person component to this year’s conference, though with several changes to ensure health and safety. At the time of print, the in-person VIP CELEBRATION spaces available are nearing capacity. This year the SSFC will feature a VIP (very important practitioner): YOU! Attorneys are so busy that we tend to • $225 for members. constantly look for what’s next. How often do you stop to • Includes 10 hours in-person CLE acknowledge and celebrate your wins—even the small ones? plus 8 hours of on-demand The Solo & Small Firm Conference will take moments to CLE; conference meals, and a celebrate your success and resilience. When you register, personal care kit. we’ll ask you to share a “win” from the past year. It could • Please visit inbar.org/SSFC to be something seemingly small such as finally remembering learn about the health and safety to unmute yourself on Zoom before talking, to something guidelines that will be strictly big such as launching your own firm. Throughout the enforced. conference we will learn about and celebrate resilience, including our own.

21 INBAR.ORG • APRIL 2021 CRIMINAL JUSTICE NOTES

By Elizabeth Houdek

LWOP SENTENCE AFFIRMED, BELATED APPEAL PERMITTED, & DOUBLE JEOPARDY ANALYSIS

In January, the Indiana Supreme Court decided SUPREME COURT CASES two criminal cases, one in which it rejected claims of fundamental error and affirmed a Defendant speaks to the court through counsel sentence of life without parole and another per curium decision clarifying that a represented In Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000), defendant speaks to the court through counsel. the Indiana Supreme Court articulated the point that The Court of Appeals continued to develop its a represented defendant speaks to the court through double jeopardy jurisprudence following the counsel. The court clarified that view in its per curium Wadle and Powell cases, permitted a belated opinion in Anderson v. State, No. 21S-CR-28, 2021 Ind. appeal despite language in the plea agreement, LEXIS 60 (Jan. 28, 2021), noting that “once counsel has and found a guilty plea involuntary due to been appointed, even if counsel has not yet entered an inadequate translation. The full text of all appearance, a defendant speaks to the court through Indiana court decisions, including those issued not-for-publication, is available via Casemaker counsel.” Id. at 1. Because counsel had been appointed at inbar.org or the Indiana Courts website at for the defendant, the trial court did not have to consider in.gov/judiciary/opinions. his pro se motion for an early trial under Indiana

22 RES GESTAE • ISBA Criminal Rule 4(B) and therefore Detective Cole’s, Nurse Birge’s, or Dr. impermissibly referred to its medical acted within its discretion by Short’s .” Slip Op. at 6. witness as an “expert” during her disregarding it. Id. . Distinguishing Nor did the court find fundamental Farmer v. State, 908 N.E.2d 1192, Fundamental error claims rejected error in allowing the medical 1199 (Ind. Ct. App. 2009), which in LWOP case providers to testify about the stages prohibits only trial judges from of the victim's bruising and their calling “experts” in front Justice Slaughter wrote for the opinions about the victim's injuries of the jury, the court noted that no unanimous court in Tate v. State, No. and their source. Defendant waived rule prohibits the state from asking a 19S-LW-444, 2021 Ind. LEXIS 63 (Jan. his undeveloped argument that the witness about her history testifying 28, 2021), affirming the defendant’s witnesses were unqualified to give as an . Id. sentence of life without parole, expert testimony and that their holding testimony did not rest on reliable COURT OF APPEALS CASES scientific data under Evidence Rule The record contains substantial 702(b). The court concluded that the Guilty plea involuntary due evidence of both the torture and defendant “has not shown that the to inadequate translation for child-molest aggravators on which jury could not be fair and impartial Spanish-speaking defendant the jury could reasonably rely. and that the trial judge needed Excluding the torture and child- to intervene to make a fair trial In Bautista v. State, No. 20A-PC-1542, molest aggravators would not have possible.” Slip Op. at 8. 2021 Ind. App. LEXIS 23 (Jan. 29, altered the jury’s recommendation 2021), the defendant's guilty plea to or the trial court’s decision. And The court also rejected the child molesting was not knowingly, the murder-of-a-child aggravator, defendant's argument that the state intelligently, and voluntarily entered proved beyond a reasonable doubt, outweighs Tate’s intoxication.

“he did not agree to be sentenced either to the full twenty-five-year PROBATE executed term, or to an additional twelve years LITIGATION

suspended, based on an Will Contests improper aggravator.” Trust Disputes & Claims Contested Guardianships Jarrell B. Hammond Matthew C. Boldt [email protected] [email protected]

Slip op. at 14

A detective and medical provider testified regarding the underlying incident and investigation, but “[b] ecause Tate does not establish error 501 INDIANA AVENUE � SUITE 200 under Rule 404(a)(1), and no such INDIANAPOLIS, INDIANA 46202-6150 317.237.0500 800.237.0505 F:317.630.2790 error is obvious on the face of the www.LewisWagner.com record, the trial court did not commit Available as Counsel or Co-counsel in All Indiana Counties fundamental error in allowing

23 INBAR.ORG • APRIL 2021 because the Spanish translation he In Crider v. State, 984 N.E.2d 618, 625 defendant is an “eligible defendant” received at his guilty plea hearing (Ind. 2013), the Indiana Supreme pursuant to Post-Conviction Rule did not adequately advise him of Court held that even when a waiver 2 because he would have had the one of the rights required by Boykin of appellate review appears to be right to challenge his purportedly v. Alabama, 395 U.S. 238 (1969), unqualified, a defendant retains unlawful sentence in a timely namely, the right to confront the the right to appeal his sentence appeal notwithstanding the waiver witnesses against him. when it is imposed contrary to provision in his plea agreement. Id. law and the defendant did not at 14. The Court of Appeals held Bautista agree to the specific sentence. carried his initial burden of The plea agreement in Fields v. The Court of Appeals vacated demonstrating that he failed to State, 20A-CR-1799, 2021 Ind. App. convictions in two cases after receive an adequate advisement at LEXIS 28 (Jan. 26, 2021), included applying the post-Richardson the guilty plea hearing that he had a provision that waived “the right substantive double jeopardy the right to confront and cross- to appeal any sentence imposed frameworks set forth in Wadle examine the witnesses against him, by the Court so long as the Court and Powell and the State failed to show that sentences the defendant within the the record as a whole nonetheless terms of this plea agreement” with The Indiana Supreme Court demonstrated that Bautista sentencing “open to argument” “expressly overrule[d] the understood this right and that he but with “a cap of 25 years on Richardson constitutional tests in was waiving it by pleading guilty. any executed sentence.” Id. at 2. resolving claims of substantive The Court of Appeals noted that double jeopardy,” adopting an Bautista at 20. The court reversed while the defendant agreed to a analytical framework that applies the denial of post-conviction relief maximum sentence of 25 years, the statutory rules of double and remanded with instructions to “he did not agree to be sentenced jeopardy where a defendant’s vacate the guilty plea. Id. either to the full twenty-five-year “single criminal act or transaction executed term, or to an additional violates multiple statutes with Notwithstanding waiver of appeal twelve years suspended, based on common elements and harms one provision in plea agreement, belated an improper aggravator.” Id. at or more victims.” Wadle v. State, 151 appeal permitted under PC Rule 2 8. The court concluded that the N.E.3d 227, 235, 247 (Ind. 2020). In a companion case, the court set out the framework for analyzing claims of multiplicity, or whether, when a single criminal act or transaction violates a single statute and results in multiple injuries, the same act may be punished twice as two counts of the same offense. Powell v. State, 151 N.E.3d 256, 263 (Ind. 2021).

The Court of Appeals applied the Wadle analysis in Hendricks v. State, 20A-CR-690, 2021 Ind. App. LEXIS 10 (Jan. 14, 2021). After first determining “the offense of conspiracy to commit robbery could be an included offense of the felony murder, as charged in this case” and then reviewing the evidence presented at trial, the court held

Continued on page 37...

24 RES GESTAE • ISBA WHAT CAN SOLO, SMALL FIRM PRACTITIONERS LEARN FROM PILOTS? By David Frangos

Presented by the ISBA GP, Solo & Small Firm Section

efore each flight, a good (and smart) pilot will analyze the Bweather conditions at the departure airport, the en-route weather, and the destination's forecasted weather. In conducting the analysis, the pilot will ask: Am I going to be taking off into a storm? Will it be a turbulent flight or a smooth ride? Is it going to be a bright and sunny trip, or will we be in the clouds for most of the flight? Can we make it to the destination, or do we need an alternate plan? Analyzing the weather is a fundamental step in preparing for a successful and safe flight.

Before taking on a new client, a legal practitioner can learn from the successful pilot by conducting a similar "weather check." Regardless of the prospective client's legal issue, a new client's onboarding should begin with a thorough case analysis starting with the initial client interview and continuing throughout the case until final disposition.

25 INBAR.ORG • APRIL 2021 In conducting the initial case The initial analysis of a new case is Continuous weather checks analysis, the smart practitioner, an essential but often neglected step. throughout the case are an essential like the pilot, will ask some of the A practitioner's failure to correctly component of a successful outcome following questions: recognize the issues early in the case for your client. Like the pilot, the can occur when the practitioner is practitioner may find themselves Does this client have a legitimate anxious to take on a new client or navigating around a storm cloud or legal issue on the merits? excited to litigate a particular type of two or may need to climb or descend issue. In their haste, the practitioner due to turbulence. The skilled and Are there any storm cells (deadlines) may not correctly evaluate the prepared practitioner will handle fast approaching? "weather." these issues with ease.

Can the prospective client afford Like a foolish pilot flying blindly Keeping a keen eye on the representation? into a storm, a practitioner's failure destination weather, the practitioner, to properly apprise themselves like the pilot, will ensure throughout Is this going to be a turbulent ride or of the case's facts may lead to an the case that a safe and successful smooth flying? undesirable outcome. To help approach and landing can be made. mitigate those risks, a practitioner If not, the practitioner will be ready Are you going to be in the clouds for should take the time to interview to divert to an alternate airport or, if most of the case, or will the visibility the prospective client, apprise necessary will return to their home be clear? themselves of the facts of the base to try another day. case, research relevant law, And, at your destination airport, collaborate with other attorneys, David C. Frangos, Esq. is a retired will the weather be good (available and then develop a reasonable and military pilot and practices as a solo remedy), or is a safe approach manageable litigation plan (flight practitioner at Frangos Legal, LLC. and landing questionable or even plan). possible?

26 RES GESTAE • ISBA ETHICS

By Hon. G. Michael Witte

REFLECTIONS ON CHANGES TO LAWYER DISCIPLINE PROCESS

ike the U.S. Constitution, the Rules of Professional 13 disbarments, 17 license resignations, 18 suspensions Conduct comprise a living document that expands without automatic reinstatement, and 17 short or stayed Land over time through amendment suspensions with probation. This desk has accounted for and interpretation. After serving nearly 11 years as the most case dispositions and the most severe sanctions the Executive Director of the Disciplinary Commission, within the agency since its inception. this writer retired in February 2021. Indiana’s Rules of Professional Conduct as well as the Rules of Admission By comparison, in the 10 years prior to 2014, there were and Discipline underwent noted growth and some only 8 disbarments for all areas of lawyer misconduct. retraction during that time. Since May 1, 2014, there have been a total of 20 disbarments, 13 of which have been related to trust TRUST ACCOUNT FOCUS account and fiduciary responsibilities. A dedication of resources to a specific problem area has garnered results. In 2013, the commission decided to dedicate one of its seven litigation lawyers to solely work trust account TRADE NAME AMENDMENTS matters. Trust account investigation requires a knack for reviewing financial spreadsheets, crunching numbers, In 2006, Indiana absolutely prohibited law firm trade and reconstructing accounts. From May 1, 2014, through names. Three Indiana attorneys practicing under the February 1, 2021, the trust account desk has generated trade name Attorneys of Aboite, LLC received public

27 INBAR.ORG • APRIL 2021 reprimands for violating Rule 7.5.1 discipline charges against 60 to A private caution letter2 was not Aboite is a township in Allen County. 65 attorneys per year. Today, that in the commission’s disposition number is in the 30 to 35 range toolbox until 2017. Observers have After 2009, Rule 7.5 was amended annually. Implementation of an noted that the court is issuing fewer to allow lawyer and law firm trade electronic case management system reprimands than in past years, and names in a very limited fashion. that it appears the court is more A trade name had to contain a attracted to suspending a lawyer’s lawyer’s name and could only license. The reality is that the contain words that (1) identified reprimand reduction correlates with “A new frontier of a field of law concentration; or (2) the number of caution letters issued described a geographic location of lawyer social media each year since 2017. the firm’s office; or (3) indicated a and electronic language fluency. These restrictions One area where caution letters are were removed on January 1, 2021. messaging ethical useful today is lawyer advertising. A trade name is now permissible traps has evolved.” Twenty years ago, lawyer if it is truthful and not misleading. advertising was primarily in print Today, Attorneys of Aboite would be media. Improper ads could not a permissible trade name under Rule be retracted or recalled from the 7.5. in 2012 and elimination of a glaring print distribution chain. Imagine backlog are several actions that have trying to recall every single phone CAUTION LETTER impacted the reduction, but there book that had an unethical lawyer are other developments that proved ad. Violations of this nature were The first decade of this century saw effective. almost always the source of formal the commission bringing formal misconduct charges and a public reprimand.

As advertising moved into the internet age, enforcement of the ALTERNATIVE DISPUTE RESOLUTION Rules of Professional Conduct adjusted to the changing landscape. EXPERIENCED It is much easier to issue a caution letter to a lawyer to edit an online PROBLEM SOLVER ad or webpage containing unethical RESULTS DRIVEN messaging than it is to spend nine months or more to accomplish the same result through the filing of formal charges. MEDIATING SINCE 1991 LITIGATING SINCE 1977 ADVISORY OPINIONS AND GUIDANCE

Lawyers have quickly adapted In-person and Virtual Mediations Available to social media platforms like Facebook, Twitter, Instagram, Thomas C. Hays and YouTube. Lawyers can reach [email protected] a broader audience at a cheaper 317.453.8638 cost, and consumers can respond to, share, or re-publish lawyer messages, as well as review and rate

501 Indiana Avenue | Suite 200 | Indianapolis, IN 46202-6150 lawyer services. A new frontier of 317.237.0500 | 800.237.0505 | F:317.630.2790 | lewiswagner.com lawyer social media and electronic messaging ethical traps has evolved.

28 RES GESTAE • ISBA Several key Indiana discipline cases in the past decade had a social media element in their facts.3

In addition to enforcing the rules for social media-related misconduct, the commission turned to proactive misconduct prevention in 2018. It began issuing formal written advisory opinions for the benefit of the statewide bar. It also initiated an online informal one-on-one guidance service to lawyers who seek ethical analysis. Formal advisory opinion #1-20204 cautioned lawyers on these highlighted measures have In re Fairchild, 130 N.E.3d 95 (Ind. vicarious liability for third-party accomplished the same. As for 2019) (lawyer was identified by social comments on a lawyer’s social media those phone book ads, when is media participants as the perpetrator account or for tagging the comments. the last time you picked up a of indecent exposure crimes); Matter Third-party comments can easily phone book? of Hill, 144 N.E.3d 184 (Ind. 2020) be ethically improper. The advisory (sanction aggravation weight given opinion advised lawyers to patrol Footnotes: to lawyer’s advisory team’s use of their own social media’s third-party social and mainstream media to comments and tagging. Failure 1. Matter of Loomis, Grubbs and disparage battery victims); Matter of to screen improper comments Wray, 905 N.E.2d 406 (Ind. 2009). Cooper, 19S-DI-418, 2021 WL 358627 can be deemed a ratification or Additionally, the lawyers falsely (Ind. Feb. 3, 2021) (elected prosecutor acquiescence by the lawyer. claimed to be an LLC when they were, battered his girlfriend and used her in fact, individual attorneys working cell phone to impersonate the victim RULE 23 AMENDMENT in an office sharing relationship and and send fictitious messages to her their purported LLC designation was social media network claiming that Admission and Discipline Rule 23 not registered with the State Board of she started the fight and excused defines the procedure for lawyer Law Examiners. Cooper). discipline operations. It was 2. Admission and Discipline Rule 23, 4. Advisory Opinion #1-20: Third completely rewritten in 2017. The Section (10)(a)(2) Party Comments or Tags on a protracted rule has 30 sections. 3. Matter of Usher, 987 N.E.2d 1080 Lawyer’s Social Media In addition to the creation of the (Ind. 2013) (lawyer created fake previously mentioned caution email address under another firm’s letter process, it created a one- domain and sent mass email message Child Support Software year limitation on the length of a attacking the virtue of a female victim Indiana discipline investigation. Extension who spurned the lawyer’s romantic SUPPORT MASTER™ of an investigation beyond one year advances); In re Anonymous, 6 N.E.3d All Calculations requires court approval. The intent 903 (Ind. 2014) (lawyer vicariously All Worksheets is to never return to last decade’s liable for improper testimonials Large Incomes backlog. The rewrite also included linked by lawyer’s webpage to outside Arrearage and Interest aligning trust account provisions third party comments); Matter of Professional Software Corporation with 21st century banking practices Keaton, 29 N.E.3d 103 (Ind. 2015) Fast, accurate support and providing “how to” templates for (use of revenge porn tactics against calculations since 1989 trust account record keeping. former female acquaintance); Matter of Steele, 45 N.E.3d 777 (Ind. 2015) POB 716 812/781-1422 Mount Vernon marc.edwin.hawley My scoutmaster taught his scouts (lawyer disclosed client confidences in IN 47620 @gmail.com to leave a campsite in better shape response to critical online review and than when we arrived. I hope that manipulated positive online reviews); www.supportmastersoftware.com

29 INBAR.ORG • APRIL 2021 RECENT DECISIONS

By Maggie L. Smith & Brock C. Bucher

APPELLATE CIVIL UPDATE (JANUARY)

In January 2021, the Indiana Supreme Court A unanimous Supreme Court in Doe v. Carmel Operator, issued two civil opinions, and the Indiana Court LLC, 160 N.E.3d 518 (Ind. 2021) (Rush, J.) held contractor of Appeals issued nine published civil opinions. could not enforce the arbitration agreement as a non- The full texts of these opinions are available via signatory against the guardian for three reasons. First, Casemaker at inbar.org or the Indiana Courts the court refused to find contractor was an agent of website at in.gov/judiciary/opinions. facility, instead determining it was an independent contractor. Second, contractor could not meet the requirements of equitable estoppel to enforce the INDIANA SUPREME COURT arbitration agreement.

Unanimous Supreme Court holds independent contractor Lastly, the court explicitly refused to adopt any cannot enforce arbitration agreement to which it was alternative theories of the estoppel doctrine. The a non-signatory Supreme Court overruled German American Financial Advisors & Trust Co. v. Reed, 969 N.E.2d 621 (Ind. Ct. A resident’s guardian signed a residency at App. 2012) on the grounds that traditional state law—not the Carmel Senior Living facility (facility) that included federal law—should determine the scope of who is bound an arbitration agreement. A complaint was thereafter in an arbitration agreement. filed against the facility and its background screening company (contractor). Both facility and contractor Unanimous Supreme Court holds minority and argued the guardian was bound by the arbitration marketability discounts are applicable to valuation of agreement, even though contractor was not a party to the minority shares facility contract.

30 RES GESTAE • ISBA A minority shareholder in a closely since INDOT failed to demonstrate appeal where the trial court’s order held corporation contractually its entitlement to weather-related dismissing three defendants failed agreed to have his shares bought immunity.) to “include the magic language back at the “appraised market value” required to meet the bright line rule as determined by a third-party Roadsafe Holdings, Inc. v. Walsh under Indiana Trial Rule 54(B)”) valuation company in accordance Construction Company, 2021 WL with generally accepted accounting 325677, __ N.E.3d __ (Ind.Ct.App. Ladra v. State, 2021 WL 325849, principles. The appraiser discounted 2021) (Najam, J.) (when construction __ N.E.3d __ (Ind.Ct.App. 2021) the minority shares for their lack of company does not protect its interest (Robb, J.) (affirming the dismissal marketability and lack of control. under an indemnity contract by of plaintiff’s claim when plaintiff either filing a declaratory judgment failed to designate any evidence The shareholder objected to these action to determine its obligations as to whether the weather-related discounts because this was a or defend via a reservation of roadway condition was temporary compulsory, closed-market sale, rights, the construction company is” or stabilized by the time the vehicle but a unanimous Supreme Court collaterally estopped from asserting crash occurred. While plaintiff may in Hartman v. BigInch Fabricators it has no duty to indemnify” after indicate a drain clogs during rain, & Construction Holding Company, indemnitee settles with claimant.) this only shows possible “inspection, Inc., 2021 WL 325883, ___ N.E.3d design, or maintenance” defects, __ (Ind. 2021) (Rush, J.), disagreed, which will not defeat a government holding “the parties’ freedom to entity’s weather-related immunity contract may permit these discounts, defense unless it can be shown the even for shares in a closed-market “authority cannot be condition exists independent of transaction. And under the plain weather causes.) 'collaterally attacked' language of this shareholder agreement—which calls for the by a 'technical defect'” Lowrey v. SCI Funeral Services, Inc., ‘appraised market value’ of the 2021 WL 97226, __ N.E.3d __ (Ind. shares—the discounts apply.” Ct.App. 2021) (Crone, J.) (affirming summary judgment dismissal of SELECT COURT OF negligence claim where the allegedly APPEALS DECISIONS Chapo v. Jefferson County Plan dangerous condition was “known Commission, 2021 WL 220968, __ and obvious,” the condition was “in Residences of Ivy Quad Unit Owners N.E.3d __ (Ind.Ct.App. 2021) (Vaidik, plain sight,” and the injuries were Association, Inc, v. Ivy Quad J.) (holding the commission’s caused by the plaintiff’s “own act of Development, LLC, 2021 WL 325672, members were de facto officers taking a shortcut”) __ N.E.3d __ (Ind.Ct.App. 2021) whose authority cannot be (Crone, J.) (ruling that the economic “collaterally attacked” by a “technical loss doctrine was insufficient to bar defect” that the officers had not filed a negligence claim in the residential the proper oath before commencing construction industry where both suit.) parties are unsophisticated and the NED P MASBAUM MD work involves “smaller construction Haggard v. State, 2021 WL 209208, __ FORENSIC PSYCHIATRY projects.” The use of the doctrine N.E.3d __ (Ind.Ct.App. 2021) (Kirsch, CONSULTATION • RECORD REVIEW should be “limited” to a “major J.) (holding easement interest in the CIVIL • CRIMINAL • PLAINTIFF • DEFENSE construction project” where parties property “alone is not ownership of PSYCHIATRIC EXAMINATION are without contract privity.) the real estate entitled to an offer as ON LOCATION THROUGHOUT INDIANA a condition precedent to the State’s EXPERT WITNESS TESTIMONY Staat v. Indiana Department of condemnation suit.”) T. (317) 846-7727 • TF. (888) 203-7746 Transportation, 2021 WL 325670, __ FX. (317) 575-1898 N.E.3d __ (Ind.Ct.App. 2021) (Bailey, USPS: P.O. Box 3005, Carmel, IN 46082 Truelove v. Kinnick, 2021 WL 325870, Email: [email protected] J.) (reversing trial court’s grant of __ N.E.3d __ (Ind.Ct.App. 2021) Website: www.FORNPSYCH.com summary judgment in INDOT’s favor (Pyle, J.) (dismissing a “premature” Voicemail & Email Messages Retrieved & Returned

31 INBAR.ORG • APRIL 2021

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administered by men over men, Thus, the United States Constitution other citizens, or to the permanent the great difficulty in this: you was designed for majority rule but and aggregate interests of the must first enable the government to was also designed to protect against community.18 control the governed; and in the next the threat of both majority factions place oblige [the government] to and minority factions. Madison wrote that, “[t]he latent control itself.”13 causes of faction are . . . sown in the FACTIONS AS A THREAT TO THE nature of man.” He noted that, “[a] In Federalist No. 47 Madison wrote RULE OF LAW zeal for different opinions . . . as well that, “the preservation of liberty . . . as . . . an attachment to different requires that the three great The Founders were also students of leaders ambitiously contending for departments of power should be human nature. Political institutions pre-eminence and power . . . have separate and distinct.”14 Thus, as are human institutions, and all . . . divided mankind into parties” everyone knows, the core structural political theory going back to the and “inflamed them with mutual feature of our Constitution is the ancient Greeks—Socrates, Plato, animosity” which can “kindle... separation of powers and checks and and Aristotle—begins with human unfriendly passions” and excite balances between three co-equal nature. “violent conflicts.”19 branches of the federal government. Of equal importance is the system In Federalist No. 51, Madison asked, Factions advocate for narrow of federalism which divides political “what is government itself, but the interests against the public interest power between the national greatest of all reflections on human and the rights of others. The most government and the states. nature?”16 And he observed that “If virulent factions will not merely men were angels, no government promote a political agenda but In Federalist No. 51, Madison would be necessary.”17 will tear at the social fabric. Thus, described the principles and factions must be circumscribed, structure of the proposed In Federalist No. 10, considered the moderated, and contained by government of the United States: most famous of the Federalist Papers, institutions designed for that very Madison addressed factions as a purpose and by the rule of law. In the compound republic of threat to the rule of law. He defined America, the power surrendered by a faction as follows: In Federalist No. 51, Madison the people is first divided between warned against a society in which two distinct governments . . . . By a faction, I understand a number “the stronger faction can readily Hence a double security arises to the of citizens, whether amounting to a unite and oppress the weaker,” rights of the people. The different majority or a minority of the whole, and he explained that “[i]t is of governments will control each other, who are united and actuated by great importance in a republic not at the same time that each will be some common impulse or passion, only to guard the society against controlled by itself.15 or of interest, adverse to the rights of the oppression of its rulers, but to

32 RES GESTAE • ISBA guard one part of the society against as distinct from a direct or pure not have anticipated the impact that the injustice of the other part.”20 democracy, it will prove more technology would have on every Madison concludes that if left difficult for unworthy candidates sphere of American life, including unchecked factions are a threat to to rise to power. Although that may politics, or that technology would the rule of law. generally be true, Madison appears enable factions to form and coalesce to have underestimated the ability across the nation unlimited by But Madison did not contemplate of unworthy candidates to insinuate population size or geography. the rise of political parties. He did themselves and rise to power in a not anticipate that political parties republic. In American history since AN ENGAGED CITIZENRY would institutionalize factions and 1789, many unworthy candidates that parties would act as a force have sought or risen to power at So what means are available to multiplier that would aggregate, every level. contain factions and preserve magnify, and sustain factions as the rule of law? permanent political actors. And of Second, Madison asserted that the course, Madison did not contemplate sheer geographic size and population The first counterweight to factions the power that a minority faction of the union would dilute factions are citizens who take their could exert from within a and make it more difficult for them citizenship seriously. Former political party. to organize. He argued that the Congressman Lee Hamilton has larger the geographic sphere, “you spoken and written often about No matter how well the make it less probable that a majority citizenship.24 His consistent theme infrastructure of American of the whole will . . . invade the is that representative government federalism is designed to contain the rights of other citizens . . . and more ultimately depends upon a well- influence of factions and to preserve difficult for all who feel it to discover informed and engaged citizenry. The the rule of law, the most basic fact their own strength, and to act in architecture of our federal system is is—in Madison’s words—that the unison with each other.”23 sound, but our freedom ultimately “government [is] administered depends upon well-informed citizens by men over men.”21 Thus, our Contrary to Madison’s theory, neither exercising their civic responsibility. constitutional system cannot—by geographic size nor population has itself—provide an absolute safeguard acted to moderate or contain the So in the grand bargain that is the against factions, which are derived influence of factions. Madison could social contract between the citizen from human nature. not foresee that political parties and and the state, the people agree to the information age would shrink surrender their absolute freedom in REPRESENTATIVE GOVERNMENT, the nation and bring Americans exchange for the rule of law. And, GEOGRAPHIC SIZE, AND closer together. And Madison could as previously noted, the rule of law POPULATION

In Federalist No. 10 Madison asserted that two characteristics of the proposed union would moderate and contain the influence of factions. The first was representative government itself. Madison believed that the election of representatives would tend to minimize the effects of factions, that the people would choose “citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice [the country] to temporary or partial considerations.”22 He actually said that under a republic,

33 INBAR.ORG • APRIL 2021 requires the consent of the governed. will not endure—without a well- Over time this principle articulated But consent of the governed does not informed and engaged citizenry. by Holmes—and known as “the mean surrender or acquiescence. marketplace of ideas”—became the Passive citizenship is a dangerous A TRADITIONAL FREE PRESS primary theoretical justification option. Active and well-informed and explanation for freedom citizen participation remains a civic The second essential means to of expression under the First duty. contain factions and preserve the Amendment. But the marketplace rule of law is a traditional free press. of ideas cannot function as intended Thus, civic education and The Fourth Estate is a surrogate for unless an independent press is engagement are of paramount the public and serves the public in vigorous in the pursuit of facts importance. We are fortunate in ways that the public cannot serve and truth. Indiana to have an active “We itself. the People: The Citizen and the In Madison’s time political news was Constitution” program, administered disseminated through newspapers by the Indiana Bar Foundation and and pamphlets. Today political funded by private contributions “The line between news is transmitted instantly 25 and the General Assembly. The the traditional press across many platforms. The flood online portal for the “We the People” of contemporary media is stress- program can be found under the and social media has testing the First Amendment and Educational Programs feature on the become almost the marketplace of ideas. We are Indiana Bar Foundation’s website inundated 24 hours a day by media at www.inbf.org. The purpose of indistinguishable.” that is not mediated. Unfiltered this program is “to promote civic information is dumped into the news and responsibility stream, information that may or among Indiana’s elementary, middle may not be accurate or reliable, that In a commentary published in and high school students.”26 My is often not well sourced, delivered August 2016 titled, “The Media’s colleague Judge Paul D. Mathias has unedited and unfiltered directly to Responsibility to Our Democracy,” been a mainstay and leader of this the public without any accountability Congressman Hamilton said: “The program for some 30 years. And or reputational risk. Some so-called independence of our press was hard recently Barnes & Thornburg retired news media are not news media to win, and it’s vital that we sustain partner Bill Moreau and his wife, at all but agenda-driven it. People must have sources they Ann, have created “The Indiana who disseminate misinformation or can rely on in order to make our Citizen,” a “non-partisan, non-profit disinformation with no concern for system work. Our democracy needs platform dedicated to increasing the traditional ethics and standards well-informed citizens making the number of informed, engaged of the journalism profession. decisions based on fact about Hoosier voters.”27 The online portal policies and politicians.”29 can be found at www.indianacitizen. The line between the traditional

org. The goal of this resource press and social media has become The First Amendment, which is to provide readily accessible almost indistinguishable. A tweet guarantees freedom of the press, is information on candidates for or a Facebook post will sometimes the first amendment for a reason. public office and to increase voter carry as much or more weight as a In 1912, in Abrams v. United States, registration and participation in our well-sourced network news report or Justice Oliver Wendell Holmes wrote elections.28 an article in a reputable newspaper. the most famous dissent in the Information sharing is a positive history of the U.S. Supreme Court.30 Representative government requires and essential democratic attribute. In Abrams, Holmes wrote that “the that citizens be well informed and But there is a lot of “information” in theory of our constitution” is “that exercise their First Amendment the public square that is unreliable the ultimate good desired is better rights to speak, assemble, and or simply false. Idle chatter and reached by free trade in ideas—that petition their government. fact-free, unfiltered, unsubstantiated the best test of truth is the power of Representative government does reports and allegations are not the thought to get itself accepted in not work well—and the rule of law journalism. A robust, traditional the competition of the market.”31

34 RES GESTAE • ISBA free press, exemplified by coherent, come to mind. First, in United fact-based, well-sourced, and ethical States v. Nixon, the United States journalism, is an essential antidote Supreme Court considered whether to the noise in the public square that executive would shield often passes for information today. the Watergate tapes from discovery in a criminal prosecution.34 The AN INDEPENDENT JUDICIARY Supreme Court held unanimously that President Nixon must deliver Finally, an independent judiciary the subpoenaed tape recordings plays an essential role in and other materials to a federal maintaining the rule of law. The district court.35 Five of the eight law is, of course, the business justices who participated in the case of the judiciary. As Chief Justice had been appointed by Republican John Marshall wrote in Marbury presidents Eisenhower and Nixon, v. Madison, “It is emphatically the including the Chief Justice Warren province and duty of the judicial Burger who wrote the opinion of department to say what the law is.”32 the court. Closer to home, in State But the term “independent judiciary” Election Board v. Bayh, our Supreme is sometimes misunderstood. It does Court considered whether Democrat not mean that the judiciary is free Evan Bayh met the constitutional to do whatever it wants. It means residency requirement for the that the judiciary must be allowed office of Governor.36 Again, in a to follow the facts and the law unanimous opinion written by Chief wherever they lead without outside Justice Randall Shepard affirming influence. And, as Justice Holmes the trial court, the court held that wrote in The , “[T]he Bayh was an Indiana resident.37 Four standards of the law are standards of the five justices, Shepard, Givan, of general application.”33 Thus, in Pivarnik, and Dickson, had been applying the law to particular facts, affiliated with the Republican Party. our courts are not unfettered but are And the trial judge, Shelby Circuit bound by neutral legal principles. Court Judge Charles D. O’Connor, was also a Republican. These cases The judiciary is not merely a third exemplify an independent judiciary political branch. The standards of deciding cases on the merits. the law are not grounded in politics, ideology, or the roar of the crowd. And, recently, there have been Thoughtful deliberation and well- numerous cases decided by state and reasoned judgment are the currency federal courts concerning challenges of the judiciary. In my more than to the November 2020 election in 28 years on the Court of Appeals I which both trial and appellate judges have served with more than 30 other have acted entirely without regard judges, and I can say with confidence to their current or prior political that the decisions from our court affiliations. This is as it should be. have been rendered without fear or favor by judges who are not CONCLUSION controlled by, or accountable to, any political party or interest group but My first point has been that only to the rule the architecture of American of law. federalism is designed to prevent the concentration of political power, Two well-known examples of to restrain the excesses of human judicial independence immediately nature, and to preserve the rule of

35 INBAR.ORG • APRIL 2021 law. My second point is that for the Footnotes: it-takes-to-be-an-effective-citizen/ rule of law to be sustained, it must be article_19ea3755-4470-5f54-94d1- e5fac150ebcd.html; Michael Reschke, protected and nurtured. 1. Adapted from the author’s remarks before the Bloomington Rotary Club Lee Hamilton: Time for Citizens to on September 27, 2016. Step Up, Herald Times Online (April At the end of the day, an informed 2. Judge, Indiana Court of Appeals. 22, 2016), https://www. and engaged citizenry, a vigorous 3. W.E. Gladstone, Kin Beyond Sea, hoosiertimes.com/herald_times_ online/news/local/lee-hamilton- and authentic traditional free press, 264 N. AM. REV. 179, 185 (1878). 4. Papers of Dr. James McHenry on time-for-citizens-to-step-up/ and an independent judiciary are the Federal Convention of 1787, 11 article_175ce87c-e1cf-5b26-baca- required to sustain the rule of law. AM. HIST. REV. 595, 618 (1906). 351c793c6afc.html. When we vote, we must make good 5. THE DECLARATION OF 25. We the People: The Citizen and the Constitution, INDIANA BAR choices. In the perpetual contest INDEPENDENCE para. 2 (U.S. 1776). 6. Id. FOUNDATION (Jan. 24, 2020), inbf. between factions, philosophies, and 7. MASS. CONST. art. XXX. org/Portals/0/Uploads/We%20the%20 policies, it is imperative that those 8. MAGNA CARTA OF 1215 cl. 39, People%20Program%20Summary. who hold positions of public trust available at nationalarchives.gov.uk/ pdf?ver=2017-09-19-143821-147 26. We the People Program, INDIANA respect and adhere to the rule of law. education/resources/magna-carta/ british-library-magna-carta-1215- BAR FOUNDATION (Jan. 24, 2020), runnymede/ (last visited Oct. 23, inbf.org/Educational-Programs/We- The rule of law has provided an 2019). The-People. environment in which personal, 9. Due Process, ENCYCLOPEDIA 27. THE INDIANA CITIZEN (Jan. 24, 2020), indianacitizen.org. political, and economic freedom BRITANNICA (Sept. 5, 2019), available at britannica.com/topic/due-process 28. See Creating More Hoosier Voters have flourished. While the great (last visited Oct. 23, 2019). By Offering One-Stop Resource, THE American experiment remains 10. U.S. CONST. amends. V, XIV. INDIANA LAWYER (Jan. 27, 2020), unfinished, within our system of 11. James Madison, ENCYCLOPEDIA https://www.theindianalawyer.com/ articles/creating-more-hoosier-voters- ordered liberty, where we balance BRITANNICA (Jan. 21, 2020), available at britannica.com/biography/James- by-offering-one-stop-resource; see “the liberty of the individual” and Madison. also Randall Shepard, Indiana’s civic “the demands of an organized 12. Constitutional Convention, health is strong—except in voting, society,” Americans have built the ENCYCLOPEDIA BRITANNICA (Jan. INDIANAPOLIS BUSINESS JOURNAL (Jan. 31, 2020), https://www.ibj.com/ greatest nation on earth. From the 21, 2020), available at britannica.com/ event/Constitutional-Convention. articles/shepard-indianas-civic-health- beginning of the Republic to the 13. THE FEDERALIST No. 51 (James is-strong-except-in-voting. present day, lawyers have been Madison). 29. Lee Hamilton, The Media’s indispensable partners in this 14. THE FEDERALIST No. 47 (James Responsibility to Our Democracy, Herald Times Online (Aug. 21, enterprise. And respect for the truth, Madison). 15. THE FEDERALIST No. 51 (James 2016), https://www.hoosiertimes. a core value of the legal profession, Madison). com/herald_times_online/opinion/ has been essential to preserve our 16. Id. the-media-s-responsibility-to-our- democratic self-governance. 17. Id. democracy/article_8a09b0ce-aedf- 18. THE FEDERALIST No. 10 (James 59df-b931-237c464be66f.html Madison). 30. Abrams v. United States, 250 U.S. The rule of law is transcendental 19. Id. 616, 624-31 (Holmes, J., dissenting). and endures from one generation 20. THE FEDERALIST No. 51 (James 31. Id. at 630. to another. It does not belong to Madison). 32. 5 U.S. 137, 177 (1803). 33. OLIVER WENDELL HOLMES, JR., any one party or faction. It does 21.Id. 22. THE FEDERALIST No. 10 (James THE COMMON LAW 108 (1881). not belong to a person. It belongs to Madison). 34. 418 U.S. 683 (1974). everyone. It is woven into the fabric 23. Id. 35. Id. at 700-02. of our national, state, and local lives. 24. See, e.g., Lee Hamilton, What Does 36. 521 N.E.2d 1313 (1988). it Mean to Be an American?, Indiana 37. Id. at 1318. University Center on Representative 38. Youngberg v. Romeo, 457 U.S. James Madison wrote that, “Justice Government (Oct. 10, 2018), https:// 307, 320 (1982) (citing Poe v. Ullman, is the end of government. It is the corg.iu.edu/programs/hamilton-views/ 367 U.S. 497, 542 (1961) (Harlan, J., end of civil society.”38 The rule of comments-on-congress/What%20 dissenting)). 39. THE FEDERALIST No. 51 (James law is both our first and our last Does%20It%20Mean%20to%20Be%20 an%20 Madison). best hope for justice and for keeping American.html; Lee Hamilton, What the Republic. it Takes to Be an Effective Citizen, Herald Times Online (June 12, 2016), https://www.hoosiertimes.com/ herald_times_online/opinion/what-

36 RES GESTAE • ISBA

Continued from page 24

“under these facts” the defendant’s “The court remanded the case with instructions to criminal acts were a single vacate the Level 5 felony kidnapping and criminal transaction not subject to multiple punishments and remanded with confinement convictions.” instructions to vacate the robbery conviction. Id. at 31, 34.

In Madden v. State, 20A-CR-196, 2021 28, 2021), the Court of Appeals that “the common law rules are Ind. App. LEXIS 7 (Jan. 12, 2021), considered an appeal that was being incorporated into the Wadle analysis the court also engaged in the Wadle briefed when the Indiana Supreme and no longer exist independently.” analysis and found that “because Court issued its opinion in Wadle Woodcock at 9. The court declined criminal confinement is included v. State, 151 N.E.3d 227, 235, 247 to definitively decide whether the in kidnapping” and the defendant’s (Ind. 2020). Addressing whether the Wadle analysis is to be applied actions were so “compressed in five Richardson common law rules, retroactively since it concluded time, place, singleness of purpose, including the “very same act” rule, that under either the common law and continuity of action that his survived Wadle and may continue formulation or the Wadle analysis, convictions for both crimes violate to be independently applied, the there is no violation of principles of double jeopardy.” Id. at 22, 23. Court of Appeals noted a conflict substantive double jeopardy. among different panels of the Id. at 10. Employing the test in Powell, court, but ultimately concluded the court also held, as the state conceded, that only the Level 2 felony kidnapping may stand but his Level 5 felony kidnapping conviction must be vacated. Id. at 19. However, the defendant’s two convictions for aggravated battery were affirmed. Noting that “[b]ecause the gravamen of this offense is the injury of another person, it is a result-based statute” the court continued to the second step in Powell and held that since “the two batteries were separated by time, place, and purpose, they were not part of a single transaction.” Id. at 17, 18.

The court remanded the case with instructions to vacate the Level 5 felony kidnapping and criminal confinement convictions. Id. at 31. Noting split in the Court of Appeals, panel holds common law principles of substantive double jeopardy no longer exist independently post- Wadle

In Woodcock v. State, 20A-CR-432, 2021 Ind. App. LEXIS 31 (Jan.

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