In This Together
MARCH 2021
FEATURING: IN THIS TOGETHER
PLUS Geographic Perspective: Honoring the history of Evansville’s legal profession Can a same-sex couple own a home as an estate by the entireties?
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COVER STORY
10 IN THIS TOGETHER
Four lawyers share their tips for being better practitioners and people By Brandon E. Tate, Heather George Myers, Michael E. Tolbert, and Shelice R. Tolbert 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 •• MARCH 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
17 INDIANA COURTHOUSE ART 25 SAME-SEX COUPLE HOMES
Indiana Courthouse Art: 66 and Counting! Can a same-sex couple own a home as By Doug Church an estate by the entireties? By Patty Xidias 19 PRO BONO PUBLICO LICENSE
Being of Service in Retirement By Marilyn Smith and Judge Martha Blood Wentworth
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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 Lawyers Section Chair: Sara McClammer, Indianapolis
4 RES GESTAE • ISBA DEPARTMENTS
7 PRESIDENT'S PERSPECTIVE 27 ETHICS
14 STATEWIDE SCOOP 31 RECENT DECISIONS
22 CRIMINAL JUSTICE NOTES 38 CLASSIFIEDS
CONTENTS
Michael E. Tolbert Doug Church James Bell Partner Partner Attorney Tolbert & Tolbert Church Church Hittle + Antrim Paganelli Law Group CONTRIBUTORS [email protected] [email protected] [email protected]
Brandon E. Tate Marilyn Smith Stephanie L. Grass Member Vice President & Director of Attorney Waldron Tate Bowen Daugherty Civil Justice Programs Paganelli Law Group Funk Spandau LLC Indiana Bar Foundation [email protected] [email protected] [email protected]
Shelice R. Tolbert Martha Blood Wentworth Kathy Osborn Partner Judge Partner Tolbert & Tolbert Indiana Tax Court Faegre Drinker [email protected] [email protected] [email protected]
Heather George Myers Joel Schumm Zena Braish Attorney Clinical Professor of Law Associate Heather L. George Myers, IUPUI Faegre Drinker Attorney at Law [email protected] [email protected] [email protected]
Steve Hoar Patty Xidas Partner Attorney Kahn, Dees, Donovan & Kahn, LLP Griffith Xidias Law Group LLC
Contributors [email protected] [email protected] 5 INBAR.ORGINBAR.ORG • • MARCH 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: The Road less TRAVELED
By Michael E. Tolbert
PRESIDENT'S PERSPECTIVE
obert Frost’s poem, “The Road Out of the debate over what the poem is Not Taken,” has been a hot about, a common theme has emerged: The R topic in literary circles since it power of non-conformity and the benefits was published in 1916. Like any great of going against the grain. This poem poem or stimulating piece of artwork, has been used to inspire many to take an it has been subject to many different unconventional path to better themselves interpretations. Many life lessons can be and the lives of others who may follow in teased out of this literary masterpiece. their footsteps despite the obstacles. Some people refer to Frost’s poem as ‘The Road Less Frost’s poem serves as the Traveled’ because of the perfect backdrop as we final stanza: celebrate the contributions made by blacks and women I shall be telling this with throughout history. February a sigh is “Black History Month,” a time when we celebrate the Somewhere ages and ages great achievements of African hence: Americans and their central role in U.S. history. March is Two roads diverged in a “Women’s History Month” wood, and I— when we commemorate the many contributions women I took the one less traveled by, have made to our great country. Many Hoosiers from these two groups have And that has made all the difference. done remarkable things that impact the practice of law in Indiana. These accomplishments deserve attention.
7 INBAR.ORG • MARCH 2021 TRAILBLAZER ROOTS IN League to fight racial inequities in States. On August 4, 1816, Allen THE HEARTLAND the South Bend area through most was born a free man in Indiana. of the 20th century. Most notable Despite Indiana being a free state, Cornelius Roscoe (C.R.) Richardson was their work to end segregation it still harbored many obstacles for has the distinction of being the first at the Engman Natatorium, which blacks. Allen taught himself how to African American male lawyer in now houses the Civil Rights Heritage read and write and became a school Indiana. Born in 1886 in Athens, Center in South Bend. teacher. He used that vocation as Georgia, C. R. Richardson graduated a gateway to sharpen his reading from Tuskegee Institute in 1905 and and writing skills. Allen would move to Portland, Maine, take the went on to Howard University in "The seeds planted Washington, D.C., earning his law bar exam, and start his practice on degree in 1911. Richardson served in by Allen and others are July 3, 1844. In search of better job the military during World War I and in full bloom throughout opportunities, Allen moved to Boston was instrumental in establishing the and became licensed to practice law American Legion in Indiana. the Indiana State Bar in Massachusetts on May 5, 1845. Association and the state." Allen reportedly walked 50 miles to His counterpart, Elizabeth Fletcher the bar exam test site in Worcester, Allen, is credited with being Massachusetts. Indiana’s first African American Macon Bolling Allen was the first female lawyer. Fletcher Allen, and African American to become a The seeds planted by Allen and her lawyer husband J. Chester Allen, lawyer, argue before a jury, and others are in full bloom throughout worked with the NAACP and Urban hold a judicial position in the United the Indiana State Bar Association
8 RES GESTAE • ISBA and the state. Because of these Eaglesfield’s efforts paved the Sarah Evans Barker (first woman trailblazers, we have been blessed way for Antoinette Dakin Leach, appointed as a judge of the U.S. with tremendous lawyers, judges, who secured a landmark Indiana District Court for the Southern and leaders of color: Phyllis Senegal Supreme Court decision that would District of Indiana); and Jeanne S. (first African American female judge change the landscape for women Miller (first woman to serve as ISBA in Indiana), Roderick Morgan (first who desired to practice law in president). Most recently, in 2014, African American president of the Indiana. On June 14, 1893, the Justice Loretta Rush was appointed ISBA), Myra C. Selby (first African Indiana Supreme Court held that Chief Justice of the Indiana Supreme American Indiana Supreme Court Leach, a court reporter, was granted Court, the first time the high court justice), and Judge Tanya Walton the privilege to practice law despite has been led by a woman. Pratt (first African American federal not being able to legally vote. On judge in Indiana’s history). June 21, 1894, she was admitted to There are many more trailblazers practice before the Indiana Supreme that could be celebrated in this LADY JUSTICE SHATTERS Court. In 1909, Leach was noted as article, but there is not enough page GLASS CEILING a member of the Indiana State Bar space to cover them all. To all the Association ISBA. trailblazers who chose to take the In 1638, Margaret Brent is road less traveled so that many can documented as the first woman in Eaglesfield and Leach opened enjoy expanded opportunity in their the American colonies to appear the door for women who wanted professional pursuits, the Indiana before a court of the Common Law to practice law in Indiana: Ella State Bar Association says, “thank to claim land in her own right or to Groninger (first female judge you.” We honor your efforts. pursue her own interests in court. It in Indiana), V. Sue Shields (first is believed that Brent was involved female elected judge in Indiana), in more than 100 court cases in Pamela Carter (first woman to Maryland and Virginia. Many serve as Indiana Attorney General), years later, Elizabeth (Bessie) Jane Eaglesfield became the first woman to practice law in Indiana and was INDIANO LAW GROUP LLC one of the first 15 female lawyers in America. Eaglesfield was born on June 29, 1853, and graduated from high school in Terre Haute, Indiana. She was admitted to the bar in Vigo County Circuit Court on September 8, 1875, at age 22 before receiving a law degree. She attended the University of Michigan, securing a literary degree in 1876 and a law degree in 1878. The same year she graduated from law school, she began advertising as an attorney-at- law in a Grand Rapids newspaper, becoming the city’s first practicing female attorney. The path to an open, bold law practice in Grand Rapids, Michigan, was most likely sparked by Indiana’s constitutional ban that barred women from the practice of law because they could not legally vote – a right that was not secured until 1920.
9 INBAR.ORG • MARCH 2021 FEATURE
By Brandon E. Tate, Heather George Myers, Michael E. Tolbert, and Shelice R. Tolbert IN THIS TOGETHER
10 RES GESTAE • ISBA FOUR LAWYERS SHARE THEIR TIPS FOR BEING BETTER PRACTITIONERS AND PEOPLE
11 INBAR.ORG • MARCH 2021 he legal field is a demanding KNOW YOURSELF, YOUR BE CAREFUL OF THE COMPANY and complex industry. Though PRACTICE AREA, AND YOUR YOU KEEP Twe sometimes sit on opposite VALUE INSIDE AND OUT Proverbs 1:10 states: “My son, if sides of the table, we all share Be able to adapt to different sinful men entice you, do not give in a common focus: justice. In this situations. Stay true to how you to them.” Who you align yourself article, four attorneys share tips that want to be known in the community. within the practice of law makes have helped them succeed as legal (Brandon) all the difference. As the old saying practitioners and wholesome human goes, “iron sharpens iron.” Associate beings. TAKE TIME OUT with colleagues, family, and friends Taking time out helps you avoid who truly understand your goals and burn out and allows you to maintain will not tarnish your name. (Michael) balance. (Shelice) WHEN PLUGGING IN A USB, LOOK FOR THE SYMBOL • Horizontally - It will point up • Vertically - It will face you • On your desk - It will face to the “Associate with colleagues, family, and friends right who truly understand your goals and will not tarnish Do you always plug in a USB device your name.” the wrong way the first time? This easy tip will help you plug it in correctly the first time. (Heather)
2021 NATIONAL HIGH SCHOOL MOCK TRIAL CHAMPIONSHIP MAY 13-15, 2021 HOSTED BY THE INDIANA BAR FOUNDATION
Indiana will virtually host more than 400 students from across the U.S., South Korea, Guam, and Northern Marianas Islands.
Volunteer from your home or office as a judge for the national competition. 2021.nhsmtc.org
12 RES GESTAE • ISBA EDUCATE YOURSELF CHECK IN WITH NETWORKS, REOPEN A CLOSED You’re not in school anymore. FRIENDS, AND COLLEAGUES BROWSER TAB The law is ever changing, and you This will keep you socially active in • PC: Ctrl+Shift+T need to stay on top of what you this new normal and allow you to • Mac: Command+Shift+T are advising. Great options are make sure those you care about are publications, CLE, and legal listservs OK as well as letting them know you If you accidentally closed a web in your practice area. (Brandon) are OK. (Shelice) browser that you need, just use these commands to open it again. MOVE AROUND INVEST AND SAVE YOUR MONEY (Heather) Start an exercise routine such as Proverbs 6:6-8 states: “Go to the walking or yoga. Get out and get ant, you sluggard; consider its ways some fresh air. (Shelice) and be wise! It has no commander no overseer or ruler, yet it stores its “You cannot rob life or BE A SPONGE provisions in summer and gathers the practice of law. Proverbs 3:13 states: “Blessed are its food at harvest.” Simply stated, those who find wisdom, those who invest your money no matter how If you do not prepare, 9 gain understanding.” Throughout little you make. A good rule of times out of 10, the result a lawyer’s career, he/she will be thumb is to save or invest at least presented with many opportunities 10% of your earnings. You will be will reflect your input.” to make money. However, sometimes surprised at how quicky your money the only thing good about the accumulates and compounds with opportunity is the financial reward. the right investment. (Michael) Knowledge is priceless and never Continued on page 33... runs dry. Money is temporary and cyclical. Always choose wisdom over money; the opportunity to gain knowledge over financial gain. (Michael)
STOP PROCRASTINATING • Book recommendation: Eat That Frog! • Buy a notebook • Use the tips
This book helps procrastinators make simple changes to their daily routine so they actually check items off their to-do lists. (Heather)
EVERYTHING IS AN OPPORTUNITY TO MARKET YOUR FIRM Marketing is not just your online presence (i.e., website, social media). Marketing includes things like how often you return phone calls, how you respond to emails, how you communicate with people, how responsive you are to client needs, your fee structure, and many other things you wouldn’t think of as marketing. Try new things. (Brandon)
13 INBAR.ORG • MARCH 2021 STATEWIDE SCOOP
By Steve Hoar Photography By Amy Ellis
Honoring the rich history of EVANSVILLE'S LEGAL PROFESSION
he senior lawyers each sit for their interviews, just beyond the bar, with the rich and intricately Tcarved wood forming the bench and witness stand visible just over their shoulders. This room holds special meaning. For one lawyer, it’s the room where he had his first trial – a mock trial when he was in high school. For another, it’s where he took his Oath of Attorneys to start a career that included serving as a Member of Congress. For all, it’s the spiritual home of the legal profession in Evansville.
14 RES GESTAE • ISBA The Randall T. Shepard Courtroom is Evansville legal history. One could the idea was for young lawyers to located within the Old Vanderburgh view the photograph of the 1910 conduct interviews of their senior County Courthouse, which recently lawyers’ baseball team that beat counterparts. Since that time, in celebrated its 130th anniversary. the doctors’ team by a score of 16 to an effort not to miss interviews Located on the site of a former 8. One could learn how Evansville of lawyers who have had notable turnaround basin of the Wabash lawyers responded to events of their careers, new rounds of interviews & Erie Canal, the Old Courthouse, day, such as during World War II take place every year or two. The constructed of Bedford limestone when the EBA helped its members interviews are now accessible on and standing 216 feet tall, was the cope with tire and gas rationing the EBA’s website at seat of justice in Evansville from its by coordinating travel to courts in histories.evvbar.org/. completion in 1890 until 1969 when surrounding Southwest Indiana a new civic center complex was counties. And one could view the Tales told in the oral histories range built. oral histories, now in video form, from landmark cases of legendary of seasoned Evansville lawyers lawyers to the minutia of everyday Renovated in 2011 at a cost of over recounting stories of the practice of legal practice. Some of the stories are $300,000, paid with contributions law from days gone by. about lawyers who passed on before from members of the Evansville their oral histories could be taken. Bar Association (EBA), the Shepard The project was revived again in One such story is the case of Leslie Courtroom is named for the 2016 in furtherance of the EBA’s “Mad Dog” Irvin who murdered Evansville native who, in that room goal to increase interaction among six people in the Evansville area in 1987, took his oath to become the multiple generations of lawyers; in the mid 1950’s. The case was Chief Justice of Indiana. He went on to become the longest-serving Chief Justice in Indiana history. Although trials are no longer held here, it remains an important, symbolic place for the Evansville Bar. It’s the natural location for the lawyer interviews that comprise the EBA’s oral history project.
The first iteration of the project began in 1998 when EBA members worked with the Vanderburgh County Historical Society and the history department of the University of Southern Indiana to conduct interviews of the eldest members of the bar. At that time, only the audio was recorded; it was then transcribed.
The project was revived as part of the EBA’s celebration of its centennial in 2011. In addition to the renovation of the Shepard Courtroom, the EBA undertook several other projects as part of this celebration. A Legal History Center was built next to the Shepard Courtroom, containing displays of artifacts and tidbits from
15 INBAR.ORG • MARCH 2021 heavily publicized, so the venue was name, the lawyer retained several Many interviews describe initiatives changed from Vanderburgh County, of his brothers at the bar, including that improved the profession in but only to adjacent Gibson County. the last attorney still practicing Evansville. One of the lawyers from After Irvin’s conviction and death in Evansville who had gained his the shysterism case told the story of sentence, the extensive publicity in license by “reading” the law instead how he helped start the local Brooks the region formed the basis for the of graduating from law school. They American Inn of Court. Founded in appeal brought by two of Evansville’s sued the newspaper for defamation. 1987, the Brooks Inn was the first Inn most prominent attorneys of the The trial court in the defamation established in Indiana and one of the time. The U.S. Supreme Court voided case sustained the newspaper’s earliest Inns in the entire country. the conviction, the first time the demurrer, but the Appellate Court The Brooks Inn continues today as Court had done so because of pretrial of Indiana ruled that the case could an organization where lawyers and publicity. Irvin was then retried in a proceed. The newspaper eventually judges of all experience levels gather more distant venue, convicted again, won the case because the evidence to share a meal and learn from each and sentenced to life imprisonment. showed that the lawyer’s business other. had increased from the publicity Some cases recited in the interviews surrounding the accusation of Some interviews highlight the give a flavor of the Evansville legal shysterism; hence, there were no demographic changes in the community of the time. Again in damages. profession. A woman attorney in the 1950’s, on a Saturday, a lawyer her 90s chronicled about becoming requested a special judge for a jury trial in a burglary case set to begin on the upcoming Monday. With a local newspaper reporter in the courtroom, the presiding judge “A woman attorney in her 90s chronicled about remarked that the request was “one becoming a lawyer in 1940. She was one of two of the lowest forms of shysterism.” The newspaper reported the women in her law school class.” exchange that same day on its front page. To vindicate his good
Continued on page 37...
16 RES GESTAE • ISBA INDIANA COURTHOUSE ART: 66 and counting!
By Doug Church
n 2007, then-ISBA President Douglas D. Church, Noblesville, Ibegan collecting original works of art depicting all of Indiana’s 92 county courthouses. The Hamilton County Bar Association made the first contribution, and since then, slowly but surely, the collection has increased in size to its current number – 66 works of art hanging on the walls of the headquarters of the Indiana State Bar Association in downtown Indianapolis.
“When we began this project, the only criteria were that it be a work of original art,” said Church. “We did not specify or require a size or style, and as a result our collection is highly eclectic. We have watercolors, pastels, oils, pen & ink – we even have a needlepoint.” Pictured left to right: Richard Beemer, Doug Church, Rick Douglas
The collection has been the product of many different methods for obtaining the artwork. A number of the paintings have been done by lawyers and judges. Others were the
17 INBAR.ORG • MARCH 2021 winning submissions of organized art competitions conducted by “ 'We did not specify or require a size or style, county bars. “Tippecanoe County and as a result our collection is highly eclectic. may be the best example of a We have watercolors, pastels, oils, pen & ink juried art competition,” Church commented. – we even have a needlepoint,' he noted.” “Thanks to Patty Truitt and local law firms, cash prizes were awarded, and more than 20 pieces of artwork were submitted! The jury then decided on the best, and that became a part of our collection,” said Church.
In addition to the paintings in hand, five more are in the works, thanks to the efforts of judges and lawyers around the state.
“When those paintings come in, we will only have 21 left to collect,” said Church. “I know from experience that in many cases the word simply hasn’t reached the remaining counties; it’s my hope that this article and word of mouth will offer some encouragement to those who haven’t made a donation to the collection as of yet.”
To our knowledge, the counties that haven’t started a project are as follows: Cass, Clark, Clinton, Fayette, Gibson, Greene, Harrison, Howard, Jay, Jefferson, Noble, Owen, Parke, Perry, Randolph, Rush, Scott, Spencer, Steuben, Vermillion, Warren.
If you are interested in helping or simply want additional information, contact Doug Church at DChurch@ cchalaw.com or call him at 317-773- 2190.
18 RES GESTAE • ISBA PRO BONO PUBLICO LICENSE: BEING OF SERVICE IN RETIREMENT
By Marilyn Smith and Judge Martha Blood Wentworth
hat are your retirement plans? Perhaps hitting Wthe road, sunning on a beach, concentrating on a hobby, or just having more time to be with friends, family, and your wonderful grandchildren. Post-COVID, however, you may now picture your retirement to include something new: dusting off a corner of your legal know-how to serve your community.
If 2020 has taught us anything, it is that a crisis widens the gulf between the “haves” and the “have-nots.” Lucky us, though, we live in Indiana where so many public and private groups put their time and treasure into feeding, clothing, housing, educating, and helping those who find themselves in need, many for the very first time.
But who helps those who need to navigate the legal system but cannot afford an attorney? Even before the pandemic, our legal services groups were stretched beyond capacity. Often, self-help is the only option for a young father to try to expunge a teenage conviction and get a job, for a young mother to enforce a child support order, or for a son or daughter of an elderly parent who
19 INBAR.ORG • MARCH 2021 needs a guardianship. Schooled MALPRACTICE INSURANCE planning or to help Hoosiers restore in the law, these problems and so their suspended driving privileges many more are right up your alley! First and foremost, lawyers who to travel to a job. In addition, by Besides, there is plenty of help for get a Pro Bono Publico License working through a recognized that retired tax attorney to learn are covered by the malpractice legal aid or pro bono agency, all the how to do an expungement, a child insurance of their supporting responsibility for administration, support petition, or a guardianship. Indiana civil legal aid or pro bono office space, training, and fiscal organization. management is carried by the Curious? Last year, the Indiana organization, not you, a lawyer with Supreme Court made it easier for a Pro Bono Publico License. retired and inactive attorneys to serve as legal volunteers by adopting “Some of you may want PRO BONO OPPORTUNITIES Admission and Discipline Rule 6.2, to 'scratch that itch' THAT FIT titled Pro Bono Publico License. See Order Amending Indiana Rules and try a new area of Any of Indiana’s pro bono and civil for Admission to the Bar and the law. Others may prefer legal aid offices can provide you Discipline of Attorneys (in.gov/ with a wide variety of opportunities judiciary/files/order-rules-2019- delivering services only to match your skills, interests, and 1017-admis-disc.pdf). The Pro Bono in person, by phone, or available time. Some of you may Publico License allows in-state and want to “scratch that itch” and try a out-of-state - inactive and retired virtually online.” new area of law. Others may prefer lawyers who intend to limit their delivering services only in person, by legal services to volunteer free of phone, or virtually online. Indeed, charge legal services to help Hoosiers some lawyers may want to provide INDIANA’S PRO BONO & CIVIL of limited means with the support brief, one-time legal advice, limited LEGAL AID OFFICES and guidance of a pro bono or other scope representation, or one or more legal services organization.1 extended representations in one You don’t have to go-it-alone because specific area of interest. Any of these Indiana has staffed pro bono and The great news is that Indiana’s preferences are possible. civil legal aid offices across the Pro Bono Publico License makes it state.2 These pro bono provider easy-peasy to use your legal skills to BRIEF, ONE-TIME LEGAL ADVICE organizations will train you to help Hoosiers in need. It does so by help Hoosier veterans with estate removing complexities. This type of legal service can be delivered through advice desks, phone banks, or court and library- California Matters based clinics. Also, Pro Bono Indiana
If you have matters in California or referrals, we can help you. Please has a pro bono online initiative contact Guy Kornblum or his office for information. called: Indiana Free Legal Answers In addition to litigation and dispute resolution services, Guy also (indiana.freelegalanswers.org/). serves as an expert witness in legal malpractice and cases relating to insurance claims. This online platform allows you to answer legal questions from low- 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 income Hoosiers from any location & Pretrial Practice Advocacy by the National Board of Trial Advocacy. with access to the internet: your Guy O. Kornblum A Professional Law Corporation kitchen table, a beach house, or as 1388 Sutter St., Suite 805, San Francisco, CA 94109 Tel: 415.440.7800 | Fax: 415.440.7898 you cruise down the Ohio river. [email protected] In fact, answering these civil legal Guy O. Kornblum [email protected] questions can be customized to your own individual schedule. Serious personal injury & wrongful death | Insurance coverage & bad faith | Professional liability | business disputes | General civil litigation For further discussion, contact David McNamer of counsel to the firm, at [email protected] or 317.299.0160. www.kornblumlaw.com
20 RES GESTAE • ISBA LIMITED SCOPE REPRESENTATION If approved, you are authorized to Publico License to your retirement “appear before a court or tribunal plan; you will find it meaningful and Limited scope representation of this jurisdiction, prepare legal fun to be a Do-Gooder! is an option that relives you of documents, render legal advice responsibility for a case that may and provide other pertinent legal 1. The Pro Bono Publico license also go on for years, or for longer than services free of charge to persons of permits attorneys holding a business you are willing or able to volunteer. limited means through a pro bono or counsel license to apply to participate Indiana recognizes less than full other legal assistance organization.” in pro bono activities in Indiana. service legal representation. See Admis. Disc. R. 6.2.3(a). Also, you 2. For information about civil legal Ind. Professional Conduct Rule 1.2(c) are entitled to all “the rights and aid/pro bono organizations in your (“A lawyer may limit the scope and obligations of a member of the bar area, see indianalegalhelp.org/find- objectives of the representation if the of Indiana with respect to attorney legal-help/ limitation is reasonable under the client privilege, work product circumstances and the client gives privilege and similar professional informed consent.”) Moreover, the privileges.” Admis. Disc. R. 6.2.4(b). recognized legal aid and pro bono agencies you will work through A lawyer with a Pro Bono Publico are experienced navigators of License is required to annually the ins and outs of any ethical complete only 3 hours of continuing considerations of less than full- legal education, 1 hour of which for service representation. professional responsibility. Admis. Disc. R. 6.2.4(c). The Indiana State EXTENDED REPRESENTATION Bar Association offers 3 hours of free CLE to members who get their Some retired lawyers may not Pro Bono Publico License. You may want 50 case files nagging them contact [email protected] for more for attention in retirement, but information on this offer. Also, they have found great satisfaction many of the pro bono and civil legal in representing a client over an aid organizations provide free CLE in extended period of time, especially return for volunteer time. because they can watch clients make improvements and progress in their There is no one-size-fits-all plan for lives. Working through a recognized a happy retirement. Some retired legal aid or pro bono agency, this lawyers want to put the law in the desire can become a reality too upon rearview mirror and embark on obtaining Indiana’s Pro Bono Publico wholly new adventures or pursue License. interests their lively law practice prevented. Others want to right some There is no fee to apply for a Pro wrongs in their retirement by using Bono Publico License. You must their legal skills to help less fortunate file with the State Board of Law Hoosiers in a different way, as a pro Examiners “an affidavit of intent to bono volunteer. With a Pro Bono be devoted solely to the provision Publico License you have the tools - of pro bono legal services” and, if professional liability coverage, staff admitted to practice in another state, support, pro bono colleagues, and a certificate of admission and good access to training and answers about standing from the highest court areas including family law, housing, of that state.Ind. Admission and consumer rights, estate planning, Discipline Rule 6.2, Section 2(a), (b). and re-entry. Add getting a Pro Bono
21 INBAR.ORG • MARCH 2021 CRIMINAL JUSTICE NOTES
By Joel Schumm
SUPREME COURT REVERSES JUVENILE AND EXPUNGEMENT CASES
This column offers a condensed he Indiana Supreme Court ended the year with review of the issues discussed in opinions addressing juvenile sentences, dangerous December appellate opinions in Tpossession of a firearm, Terry searches, juror criminal cases. A more in-depth misconduct, and expungements. The full text of all version of this article is available at Indiana court decisions, including those issued not-for- the Indiana State Bar Association’s publication, is available via Casemaker at inbar.org or website at inbar.org/rg-online. the Indiana Courts website at in.gov/judiciary/opinions. A more in-depth version of this article is available at inbar.org.
SENTENCES REDUCED FOR JUVENILES
In a pair of cases, the justices continued a trend of reducing lengthy sentences imposed against juvenile offenders.
State v. Stidham, 157 N.E.3d 1185 (Ind. 2020), revisited a 138-year sentence for a 17-year-old, which had been affirmed in 1994. The majority emphasized “[t]wo major shifts in the law—one easing the standard by which
22 RES GESTAE • ISBA we exercise our power to review sentencing considerations under Justice Slaughter dissented, and revise sentences and another Miller v. Alabama, 567 U.S. 460 emphasizing the discretionary limiting the applicability of the most (2012).” Id. at 1167. But the court nature of 7(B) relief and the “need severe sentences to children[.]” Id. at agreed that his appellate counsel for a workable 7(B) standard.” 1187. Reinforcing “the basic notion was ineffective on direct appeal that juveniles are different from by failing to bring a 7(B) challenge DANGEROUS POSSESSION OF A adults when it comes to sentencing under then-“recent companion FIREARM and are generally less deserving of decisions reducing long sentences the harshest punishments,” the court for juvenile double murderers.” Id. K.C.G. v. State, 156 N.E.3d 1281, 1283 reduced the sentence to 88 years at 1179 (citing Fuller v. State, 9 N.E.3d (Ind. 2020), continues the court’s under Appellate Rule 7(B). Id. at 653, 659 (Ind. 2014); Brown v. State, emphasis on statutory text instead 1188. 10 N.E.3d 1, 8 (Ind. 2014)). of the legislature’s “asserted intent” or resort to other statutory language. Justice Slaughter dissented because Specifically, juvenile courts lack “the Court resolves a claim that subject matter jurisdiction over the Stidham did not raise and awards offense of dangerous possession relief he did not seek.” Id. at 1198. “Specifically, juvenile of a firearm. “Juvenile courts have ‘exclusive original jurisdiction’ to courts lack subject In Wilson v. State, 157 N.E.3d 1163 hear proceedings in which the State (Ind. 2020), a 16-year-old challenged matter jurisdiction over alleges that a child committed ‘an act that would be an offense’—a crime— his 181-year sentence. The justices the offense of dangerous rejected his claim that the sentence 'if committed by an adult.’ Yet under was “a de facto juvenile life sentence possession of a firearm.” the governing statute, an adult can that triggers additional constitutional never commit this offense.” Id. at 1282.
23 INBAR.ORG • MARCH 2021 PAT-DOWN SEARCH UPHELD JUROR MISCONDUCT would likely have affirmed Kribs's conviction.”). In Johnson v. State, 157 N.E.3d 1199 In Loehrlein v. State, 158 N.E.3d 768, (Ind. 2020), the defendant offered 770 (Ind. 2020), the court held that a Allen v. State, No. 20S-XP-506, 2020 to sell drugs to another man at a juror committed gross misconduct WL 7584947, at *4 (Ind. Dec. 22, casino at 7 a.m. The majority upheld by answering “N/A” on a jury 2020), remanded the denial of an a pat-down search, concluding “that questionnaire when “she had in fact expungement because the court the agent had reasonable suspicion been charged with a crime and had was “unable to determine what that criminal activity was afoot (so been the victim of domestic abuse.” consideration the [trial] court he could stop Johnson), that Johnson Nevertheless, based on “the facts and gave the evidence presented at could be armed and dangerous (so circumstances of this case, including the hearing or if it entirely failed he could pat Johnson down after the strong evidence of Defendant’s to consider the evidence favoring entering a confined space), and sanity,” she failed to show probable expungement based on a mistaken the lump in Johnson’s pocket was harm necessary to reverse her belief that Allen was ineligible for immediately apparent as contraband murder conviction. Id. expungement.” (so it could be seized).” Id. at 1202. ABUSE OF EXPUNGEMENT COURT OF APPEALS Justice Slaughter dissented. In his DISCRETION view “neither the time nor the The longer version of this article location gives rise to the inference Judges often make rulings without summarizes several Court of that Johnson was armed,” as elaboration; explanations can be Appeals’ opinions, including required for a Terry pat-down a double-edged sword on appeal. opinions applying the new Wadle search. Id. at 1209. See, e.g., Kribs v. State, 917 N.E.2d framework for double jeopardy, 1249, 1251 (Ind. Ct. App. 2009) (“Had reversing a theft conviction the trial court remained silent, we involving mislaid property, and a 2-1 opinion affirming a strip search.
“The court reiterated that defendants must have a 'reasonable opportunity to prepare for and defend against the charges,' which usually means 'two or more months.' ” Hobbs v. State, No. 19A-CR-909, 2020 WL 7019663 (Ind. Ct. App. Nov. 30, 2020), is especially noteworthy, concluding a trial court abused its discretion in allowing the state to amend the charging information by adding new child molesting counts 14 days before trial. The court reiterated that defendants must have a “reasonable opportunity to prepare for and defend against the charges,” which usually means “two or more months.” Id. at *4 (court’s emphasis).
24 RES GESTAE • ISBA CAN A SAME-SEX COUPLE OWN A HOME AS AN ESTATE BY THE ENTIRETIES? By Patty Xidias
Presented by the ISBA GP, Solo & Small Firm Section
FORMS OF CO-OWNERSHIP OF REAL PROPERTY
Many married couples elect to hold title to real estate as an “estate by the entireties,” which is a form of joint tenancy with rights of survivorship. Tenants in common, by contrast, do not have rights of survivorship. A married couple who purchases a home together presumably holds title as an “estate by the entireties.” If one spouse passes away, the other spouse becomes the sole surviving owner.
In addition to the right of survivorship, estate by the entireties provides statutory protection from the execution of a judgment against one (but not both) of the spouses. Indiana Code Section 34-55-10-2(c) (5) exempts from execution property of a debtor domiciled in Indiana constituting “[a]ny interest that the debtor has in real estate held as a tenant by the entireties. The exemption under this subdivision
25 INBAR.ORG • MARCH 2021 does not apply to a debt for which SO WHICH PRESUMPTION If sub-section 34-55-10-2(c)(5) were the debtor and the debtor's spouse APPLIES TO A SAME-SEX ever challenged on constitutional are jointly liable.” MARRIED COUPLE PURCHASING grounds, the courts would have REAL ESTATE? three options, to find either that the CONFLICTING PRESUMPTIONS code: UNDER INDIANA LAW Indiana Code defines “estate by the entireties” as real property owned by 1. Constitutionally favors The presumption created by “husband and wife.” You will not find opposite-sex couples, Code Section 32-17-2-1 is that a the phrases “husband and husband,” 2. Is unconstitutional and deed conveying title to two or “wife and wife,” or “same-sex couple” unavailable to all married more persons creates a tenancy in the relevant parts of the code. couples, or in common, rather than a joint 3. Is unconstitutional to the extent tenancy. That presumption in favor It is our opinion that the Equal it applies only to husbands and of the tenancy in common seems Protection Clause of the U.S. wives. to be flipped on its head, however, Constitution and the Privileges and when two real estate transferees Immunities Clause of the Indiana Considering that federal courts have are husband and wife. Under Code Constitution would require the consistently extended to same-sex Section 32-17-3-1, there is a statutory courts to extend the benefits of married couples statutory rights presumption in favor of estate by the estate by the entireties to same-sex and privileges previously reserved entireties, when a husband and wife married couples. See, for example, for opposite-sex married couples, purchase real estate or lease real Henderson v. Box, 947 F.3d 482 (7th it would seem likely that the courts estate with an option to purchase. Cir. 2020) (extending birth certificate would find sub-section 34-55-10-2(c) presumptions to same-sex couples). (5) unconstitutional to the extent estate by the entireties is limited by the phrase “husband and wife” and would extend and apply all statutory rights and privileges of “estate by the entireties” to any real property owned by any married couple, regardless of the sex of the couple.
PRACTICE WARNING
This article represents our best guess as to how the courts would address these issues. We do not recommend that estate and asset protection planning attorneys presume that estate by the entireties applies to same-sex couples. Attorneys should use other tools to assist same-sex couples in achieving their desired planning results.
1. Underwood v Bunger, 70 N.E.3d 338 (Ind. 2017). 2. Obergefell v. Hodges, 576 U.S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015); Pavan v. Smith, 137 S.Ct. 2075, 198 L.Ed.2d 636 (2017)
26 RES GESTAE • ISBA ETHICS
By James Bell and Stephanie L. Grass
A ROADMAP ON HANDLING EVIDENCE AND CONTRABAND
n the Matter of M.B., 158 N.E.3D 752 (Ind. 2020), communications with” the minor student. 158 N.E.3d at the Indiana Supreme Court gave guidance to 754. The lawyer’s investigation led to his possession of I attorneys who found themselves in the unenviable the student’s laptop, which contained sexually graphic position of handling contraband. This case involved an images of the minor in those communications. Id. employment lawyer who represented a high school and Possession of this laptop and other actions by the lawyer was hired to do what employment lawyers do: Advise his during the course of this representation resulted in client about an employee who needed to be terminated. the Disciplinary Commission’s investigation of alleged violations of the Indiana Rules of Professional Conduct. However, this was not the normal employment case and therefore, the normal way of handling it (gathering The employment lawyer involved in this case is not the all the evidence and negotiating a resolution of the only lawyer to find himself in this spot. On a weekly employment issue, etc.) did not go as planned. Instead, basis, lawyers – especially criminal defense lawyers – this particular case involved a coach’s abuse of a find themselves in possession of “surprise” items they did minor and a series of “inappropriate electronic sexual not ask for. What should you do if you find yourself in a
27 INBAR.ORG • MARCH 2021 scenario like this? These situations recent decision, other precedent, an attorney envelope. Too many are addressed in the abstract in law and some practical guidance from lawyers have found themselves in an school but upon graduation you get a our experiences in helping lawyers uncomfortable scenario when they diploma, not a well-marked roadmap through such circumstances. were asked to be the courier of what on how to handle these issues. seemed to be an innocent item.
These situations can require the A similar situation can arise when involvement of law enforcement “Follow the rule from you are investigating a case. Follow and that may not be great news your school field trip to the rule from your school field trip to for your clients. When faced with the museum: Look but do not touch. the prospect of involving law the museum: Look but enforcement, it may feel like it is do not touch.” In Wemark v. State, 602 W.2d 810 the choice between client loyalty (Iowa 1999), the police couldn’t find and being a tattle-tale/rat/snitch. It the weapon used to murder the isn’t. When you are in possession of defendant’s wife. The defendant THE MUSEUM RULE: LOOK BUT contraband, you are in the soup and told his lawyer the bloody knife was DON’T TOUCH your options are limited. The choice under the stairs at the crime scene. you face is between being a lawyer Id. at 813. The lawyer, incorrectly First things first. If you can avoid and being another lawyer’s future feeling an obligation to disclose taking possession of an item, don’t client. this information, then convinced accept it. Red flags should go up his client to disclose the location of whenever someone asks you to This is our attempt at the roadmap the weapon to law enforcement. Id. deliver an item for them. This is law school forgot to give us. It is Ultimately, the client was convicted especially true if a family member not perfect, but it is a start. It is of first-degree murder, after the asks you to deliver an item to a guided by our Supreme Court’s state highlighted the location of jailed client or mail something in
28 RES GESTAE • ISBA the bloody knife in its prosecution. YOU LOOKED AND TOUCHED – This would put us at a new point on The defendant then petitioned WHAT NOW? our roadmap. In our opinion, taking for postconviction relief, alleging any of these above steps would at ineffective assistance of counsel. Id. Let’s change the facts of the bloody least start to steer the lawyer in the at 814. knife scenario a little more. Let’s say wrong direction. “A lawyer shall not the defense lawyer took possession unlawfully obstruct another party’s Keep in mind, this lawyer never took of the bloody knife and left the crime access to evidence or unlawfully possession of the bloody knife and he alter, destroy or conceal a document was under no obligation to disclose or other material having potential anything. While the court denied “That would likely be evidentiary value.” Ind. Prof. the claim for ineffective assistance Cond. R. 3.4(a). Therefore, moving, problematic as well as a of counsel, it paused to discuss touching, or taking the bloody knife the importance of attorney-client “lawyer shall not counsel would likely run afoul of Rule 3.4(a). privilege and that neither tactics nor or assist another person What if you sent an investigator to strategy supported disclosure in the take possession of it? That would case. Id. at 817. “[A] defense lawyer to do any such act[.]” likely be problematic as well as a has no legal obligation to disclose “lawyer shall not counsel or assist information about the location scene with it. Or let’s say the lawyer another person to do any such act[.]” of an instrument of a crime when touched the knife or moved it. Or, Ind. Prof. Cond. R. 3.4(a). possession of the instrument is not finally, let’s say the lawyer did not taken.” Id. (emphasis added). touch the knife, but once the lawyer It should be noted that there are knew where the knife was, he sent circumstances when a lawyer can The lawyer’s observations and an investigator to retrieve it. take evidence (not contraband) into knowledge are confidential under his or her temporary possession for Indiana Rule of Professional Conduct examination. Comment 2 to Rule 1.6. “’[I]nformation relating to the representation of a client,’ as stated in Prof. Cond. R. 1.6(a), is a broad definition and has been construed to include all information relating to the representation regardless of the source.” In re Goebel, 703 N.E.2d 1045, 1047 (Ind. 1998) (citing ABA Comm. On Ethics and Professional Responsibility, Formal Op. 94-380 (1994)).
Therefore, assuming the defense lawyer had authorization to enter the crime scene, he could have looked under the stairs, observed the bloody knife that police could not find, and then gone home. The lawyer could have revealed his observations to only the client and protected his client’s defense. In other words, he could have looked, but not touched, and consistent with the Rules of Professional Conduct, he would have been permitted to take no further action.
29 INBAR.ORG • MARCH 2021 3.4 provides, “Paragraph (a) applies Despite the permissibility of taking a lawyer’s duty of confidentiality to evidentiary material generally, temporary possession of evidence, to clients trump the lawyer’s duty including computerized information. carefully consider if you should do so to report? Or does Rule 1.6(b)(6)’s Applicable law may permit a lawyer because this act may still place you exception that allows a lawyer to to take temporary possession of in a position where you must hand reveal information “to comply with physical evidence of client crimes for evidence over to law enforcement. other law” mean that a lawyer’s duty the purpose of conducting a limited Comment 2 continues by stating to report is the same as the general examination that will not alter its that “[i]n such a case, applicable public’s? potential evidentiary value.” law may require the lawyer to turn the evidence over to the police or In re M.B., the court discussed this prosecuting authority, depending on issue by noting the opinion of the the circumstances.” Indiana State Bar Association’s Legal Ethics Committee (cdn. Possessing contraband (and not just ymaws.com/www.inbar.org/ evidentiary material) is, of course, resource/resmgr/2015-ethics-op-2. a different issue. As shown above, pdf) that stated, “the lawyer’s once you possess contraband, you duty of confidentiality is generally can’t destroy, alter, or conceal it. paramount over the general duty Of course, you can’t just keep the to report.” 158 N.E.3d at 761 (citing contraband either. So what do you ISBA Legal Ethics Comm. Opp. No. 2. do? Again, the answer appears to be (2015)). However, because the court to involve law enforcement. was not required to do so under the facts presented in this matter, In re M.B., the respondent’s the court did not reach many other gathering of evidence resulted in conclusions. Id. at 762. It appears his possession of child pornography. this part of our roadmap is yet to be Under the circumstances, the court drawn. found no rule violation, but it did state clearly that “[t]he best course KEY TAKEAWAYS of action for all who took possession of these materials, including As lawyers, we need to be cautious Respondent, would have been to any time we are confronted with promptly involve law enforcement.” taking possession of evidence. Here 158 N.E.3d at 763. are some suggestions that will limit exposure: THE LAWYER’S DUTY TO REPORT CHILD ABUSE • Look but don’t touch. Your observations are confidential. While we are talking about involving • If at all possible, refuse to law enforcement in our cases, we take possession of your client’s should touch on the related issue property. of a lawyer’s obligation to report • And finally, if you find yourself child abuse. The general rule under in possession of contraband, Indiana law is any individual who you need to consider promptly becomes aware of possible child involving law enforcement. abuse is mandated to report to the Department of Child Services or local law enforcement. See Ind. Code § 31- 33-5-1. But what if the lawyer learns of possible child abuse through the attorney-client relationship? Does
30 RES GESTAE • ISBA RECENT DECISIONS
By Kathy Osborn and Zena Braish
APPELLATE CIVIL CASE LAW UPDATE (DECEMBER)
This article highlights one Indiana Supreme Court civil opinion, and six Indiana Court of n a matter of first impression, the Indiana Appeals opinions issued in December 2020. A Supreme Court held a defendant who longer version of this article is available at the Iwas convicted of conspiracy to commit Indiana State Bar Association’s website at inbar. burglary was not ineligible for expungement org/rg-online. under the serious bodily injury exclusion in Indiana’s Permissive Expungement Statute. In December, the Indiana Supreme Court issued Allen v. State, -- N.E. 3d --, No. 20S-XP-506, three civil opinions and the Indiana Court of 2020 WL 7584947 (Ind. December 22, 2020) Appeals issued 18 published civil opinions. (Goff, J., in which Rush, C.J., and David, Select opinions are summarized below. The full Massa, and Slaughter, JJ., concur). Allen was text of all Indiana appellate court decisions, initially charged with crimes that involved including those issued not-for-publication, is bodily injury to another person, but these available via Casemaker at inbar.org or the Indiana Courts website at in.gov/judiciary/ charges were dismissed when he pled guilty opinions. A more in-depth version of this article to conspiracy to commit burglary, which does is available at inbar.org. not involve bodily injury. The court further held that courts may consider the facts of
31 INBAR.ORG • MARCH 2021 the incident leading to a conviction, it communicated with a jury after does not affect the plaintiff’s timely- even if the conviction itself does deliberations began, warranting a filed case against the employer for not require proof of those facts. new trial. Choi v. Kim, 158 N.E.3d respondeat superior. The court reversed the trial court's 774 (Ind. 2020) (per curiam). The order denying Allen's petition for opinion reversed in part the Court The court also decided that Section expungement. of Appeals, which had also held the 34-31-7-2, which lays out the plaintiff failed to prove the theft duties owed by nonprofit religious In Holcomb v. City of Bloomington, claim and simply reversed the organizations to persons who enter -- N.E. 3d --, No. 19S-PL-304, 2020 judgment of the trial court. their premises, includes the parking WL 7349155 (Ind. December 15, lots of those premises but bars 2020) (Goff, J., in which Rush, C.J. In a case involving breach of claims for injuries not caused by a concurs; David, J. concurs in result; contract claims relating to a hidden danger. Henderson v. New and Slaughter, J., joined by Massa, construction project, the Court of Wineskin Ministries Corp., -- N.E.3d --, J., dissents), the Supreme Court Appeals held that Indiana Code No. 20A-CT-1317, 2020 WL 7689625 held that a bill targeted at stopping Section 32-28-3-17, which limits (Ind. Ct. App. December 28, 2020) the City of Bloomington from forum-selection provisions, applies (Vaidik, J., in which Brown, J., and annexing land and prohibiting it to all contracts for the improvement Pyle, J. concur). This case stems from from annexing that land for five a slip and fall that occurred in the years was unconstitutional special defendant’s parking lot. The court litigation. The court first concluded affirmed the lower court’s grant of Bloomington could pursue a “... which lays out the summary judgment in favor of the declaratory judgment action against defendant after finding the injury duties owed by nonprofit Governor Holcomb because of his was not caused by a hidden danger. broad constitutional duties implied religious organizations to by the drafting of the legislation, persons who enter their Finally, the court determined and the specific and targeted that Section 740-1003(B) of the nature of the legislation. Second, premises...” Consolidated City of Indianapolis/ the General Assembly’s legislation Marion County Code does not was unconstitutional because require a zoning/licensing inspector Bloomington’s proposed annexation of real estate, not just those involving to obtain permission or an presented no unique circumstances mechanics’ liens. Sullivan Corp. v. administrative warrant to conduct that would allow for constitutional Rabco Enter., LLC, -- N.E.3d --, No. an outdoor inspection. Metro. Dev. special legislation. 20A-PL-1444, 2020 WL 7135006 Comm’n v. Powell, -- N.E.3d --, No. (Ind. Ct. App. December 7, 2020) 20A-OV-871, 2020 WL 7330359 The Supreme Court decided a trial (Bradford, C.J., in which Kirsch, (Ind. Ct. App. December 14, 2020) court committed reversible error in J., and May, J. concur). The court (Tavitas, J., in which Kirsch, J., and a case involving a theft claim when disagreed with the trial court’s Pyle, J. concur). The commission determination that the construction appealed the trial court’s denial of its contract’s forum-selection clause motion for a permanent injunction NED P MASBAUM MD was valid and enforceable and against Powell. The Court of Appeals FORENSIC PSYCHIATRY reversed its grant of Rabco’s motion reversed after determining the trial CONSULTATION • RECORD REVIEW to dismiss. court misinterpreted the language of CIVIL • CRIMINAL • PLAINTIFF • DEFENSE Section 34-31-7-2. PSYCHIATRIC EXAMINATION In Hogan v. Magnolia Health Sys. ON LOCATION THROUGHOUT INDIANA 41, LLC, -- N.E. 3d --, No. 20A-CT- EXPERT WITNESS TESTIMONY 1101, 2020 WL 7330341 (Ind. Ct. T. (317) 846-7727 • TF. (888) 203-7746 App. December 14, 2020) (Robb, FX. (317) 575-1898 J., in which Crone, J., and Brown, USPS: P.O. Box 3005, Carmel, IN 46082 J. concur), the court held that the Email: [email protected] Website: www.FORNPSYCH.com dismissal of an untimely claim Voicemail & Email Messages Retrieved & Returned against an employee for negligence
32 RES GESTAE • ISBA
Continued from page 13 legal work and developing your business and networking, while also ENACT SYSTEMS AND balancing a home and personal life. PROCESSES FOR YOUR FIRM This is one of the most important and A must if you want to scale your firm difficult items to achieve. (Brandon) and heavily recommended even if you do not. It is tremendously GET ORGANIZED helpful and will create efficiency for The more organized you are, the you and your staff to have systems more efficient you will be, which and processes in place for things like makes for less stress and more administrative tasks, client intake, achievement. You can minimize client management, etc. Systems chaos by creating to-do lists and and processes also make it easier prioritizing tasks. (Shelice) to seamlessly hire an assistant, paralegal, or associate. (Brandon) BE CAREFUL WITH SOCIAL MEDIA Proverbs 11:13 states: “A gossip STAY CONNECTED TO THE betrays a confidence, but a BAR ASSOCIATION trustworthy person keeps a secret.” Your local, state, and specialty bar Resist the urge to put everything associations can provide a wealth of about your practice on social media. resources and support. (Shelice) Stay away from posting about specific cases or clients when making WORK AT YOUR CRAFT comments on social media. (Michael) Proverbs 10:4 states: “Lazy hands make for poverty, but diligent hands NEW PROCESS SERVICE bring wealth.” You cannot rob life PROVIDER or the practice of law. If you do not Doxpop now provides process prepare, 9 times out of 10, the result service via sheriff’s civil process, will reflect your input. So will your certified mail, or first-class mail. financial bottom line. Put in the Doxpop has made process service work and you will be rewarded. easy! If you use Doxpop as your (Michael) e-filing provider you can select which documents you want served, ELECTRONICALLY SIGN WITH how you want them served, and pay AN IPHONE the service fees when you file the • Take a picture of the page you documents. (Heather) need to sign • Open picture in photo app DO NOT BE TOO AVAILABLE, AND • Click on + DON’T BE TOO UNAVAILABLE • Select “Signature” Find the balance. To manage your • Sign and then move signature time effectively, this has to be box taken seriously. You can manage • Click “Done” client expectations for immediate responses by clearly outlining in In the virtual world you need an easy an engagement letter something way for clients to sign documents to the effect that “all calls will be electronically. Apple makes it easy responded to within X hours (or X on an iPhone. (Heather) days) if not answered.” (Brandon)
MANAGE YOUR TIME EFFICIENTLY You must balance your time doing
33 INBAR.ORG • MARCH 2021 TAKE ADVANTAGE OF BOOK RECOMMENDATION: NEVER TAKE THINGS VIRTUAL CLE PROFIT FIRST PERSONALLY The CLE requirement for in-person Profit is not an event. Profit is a Proverbs 12:16 states: “Fools show attendance has been relaxed due to habit. Profit First helps you change their annoyance at once, but the the pandemic, resulting in a plethora your mindset from Revenue – prudent overlook an insult.” Try of virtual CLEs at discounted rates! Expenses = Profits to Revenue – not to take things personally. Sign up for them to make sure you Profit = Expenses. Start the habit of The practice of law is difficult. meet your three-year requirement. making a profit now. (Heather) Sometimes in the process of handling (Shelice) an issue or during the representation DO NOT BE AFRAID TO of a client, people say things they do BE TEACHABLE DECLINE A CASE not mean. When that happens, try Proverbs 12:1 states: “Whoever Your best cases are going to be the not to overreact. Remember, we are loves discipline loves knowledge, but bad ones you decide to decline. Bad all human and nothing should get whoever hates correction is stupid.” cases are expensive as they take up a personal. (Michael) Good lawyers are teachable and are significant amount of time with little always willing to learn no matter return. Be exclusive. (Brandon) BOOK RECOMMENDATION: how old they get. View correction as THE GO-GIVER SERIES a blessing and an opportunity to add BE A SPEAKER FOR A CLE The secret to success is giving. Learn to your practice. Correction from a When you are a speaker, you get at how the Five Laws of Stratospheric colleague, judge, or mentor is free least four hours speaking credit for Success help you network naturally, CLE. Be teachable. Take direction the CLE and you usually do not have give exceptional value, and produce and instruction. (Michael) to pay for the CLE. Being a speaker extraordinary results. (Heather) can also help you with staying current in your practice or other QUICKBOOKS AND AN areas of the law. (Shelice) ACCOUNTANT Have bookkeeping software through something like Quickbooks and have an accountant. Shift the responsibility and liability to an accounting professional for things like quarterly/annual taxes and, to a lesser extent, bookkeeping. Taking PROBATE this off your plate will also help you LITIGATION balance your time better. (Brandon)
Will Contests DEVELOP HEALTHY RELATIONSHIPS WITH CLIENTS Trust Disputes & Claims During this pandemic, it is even Contested Guardianships Jarrell B. Hammond Matthew C. Boldt more important to make sure your [email protected] [email protected] clients’ needs are being met. Call them to see how they are doing and whether they need anything. This type of communication allows your relationship to become organic and not so transactional. (Shelice)
501 INDIANA AVENUE � SUITE 200 DON’T BE FAKE INDIANAPOLIS, INDIANA 46202-6150 Proverbs 12:9 states: “Better to be a 317.237.0500 800.237.0505 F:317.630.2790 nobody and yet have a servant than www.LewisWagner.com pretend to be somebody and have Available as Counsel or Co-counsel in All Indiana Counties no food.” Be your authentic self. (Michael)
34 RES GESTAE • ISBA BOOK RECOMMENDATION: NETWORK, NETWORK, NETWORK GET YOUR ANNUAL MEDICAL THE WORST-CASE SCENARIO It is not who you know, it is how well EXAMS INCLUDING PHYSICAL, SURVIVAL HANDBOOK they know you. Even if someone VISION, AND DENTAL EXAMS If you’re having a bad day, flip knows who you are, they are not If you are not in good health, then through this book and see how it going to refer a case to you unless you are not going to be able to serve could be worse! You might learn they know you well. A referral also clients to the best of your ability. something practical that you reflects on that referring attorney Your health is the thing that matters. hopefully won’t need to use one day. with the clients. (Brandon) (Shelice) (Heather) DO NOT BE AFRAID TO ASK FIND A MENTOR DO NOT BE AFRAID TO CALL ON FOR HELP Proverbs 15:22 states: “Plans fail ANOTHER ATTORNEY If you do not know something or are for lack of counsel, but with many Whether calling someone to unsure, ask. It will save you time and advisers they succeed.” Find a potentially co-counsel on a case, a lot of stress. (Shelice) great mentor. It can make all the refer a case to, or just to ask difference in your career. (Michael) questions about a case, do not be “Although there will afraid to call on someone else. READ OR LISTEN FOR FUN be times when the Indianapolis and Indiana are some I love to listen to audiobooks when of the most open and generous legal unexpected occurs, do I’m in my car. Here are a few of my communities among attorneys, your best to stick to your recent favorites: The Flight Girls by with most being more than willing Noelle Salazar; The Glass Ocean by to answer questions and help. schedule so that you Beatriz Williams, Lauren Willig and (Brandon) complete the tasks you Karen White; The Reckoning by John Grisham; and The Masterpiece by BE A VOLUNTEER set out to achieve.” Fiona Davis. (Heather) Sometimes you have to take yourself outside of the legal world and help CATCH MORE FLIES WITH HONEY FIND A CASE MANAGEMENT/TIME others in your community. You will Proverbs 15:1 states: “A gentle Keeping option that works for you be surprised at how a little bit of answer turns away wrath, but a Do not go without one. Some your time is greatly appreciated and harsh word stirs up anger.” Give features to look at would be auto- valued by others. (Shelice) what is not given to you. Sometimes, checklists upon case opening based it is not wise to meet anger with on practice area of the matter, auto anger. Stop negative energy by KEEP YOUR WORD populated documents, time keeping, Proverbs 12:19 states: “Truthful lips being the bigger person during billing, invoicing/payment, etc. endure forever, but a lying tongue confrontations. (Michael) (Brandon) lasts only a moment.” If you say you will do something, keep your word. LOOK GOOD ON ZOOM EAT HEALTHY The relationship you develop with Get a Ring Light. Remote hearings When you eat a healthy diet, you other lawyers and clients by keeping are here to stay (at least for a while), have more energy and are more your word on little things is worth so spruce up your look with a Ring productive. Poor eating habits can more than gold. (Michael) Light that gives you that beautiful in lead to you feeling sluggish and may person glow! (Heather) lead to other health issues. Eating EXERCISE EVERY DAY healthy along with some exercise My favorite is OrangeTheory Fitness. INVEST IN YOUR TIME AND keeps you at your best for you and I love my 6 a.m. workouts, which I EFFICIENCY your clients. (Shelice) call Orange Therapy. Working out In the realm of systems and processes: 1) have forms; and 2) have first thing in the morning means BE A ‘PICKY’ PRACTITIONER I burn calories all day and I’m checklists. Look at your practice and Proverbs 18:17 states: “In a lawsuit less likely to get busy and skip my determine what can be streamlined. the first to speak seems right, until workout. (Heather) (Brandon) someone comes forward and cross- examines.” All that glitters is not
35 INBAR.ORG • MARCH 2021 gold. Never solely rely on a client’s • Don’t charge your phone near and register today. It’s June 3-4, 2021, version of events. Screen your cases your bed in French Lick, Indiana. (Heather) and fact check. (Michael) • Put your phone away when you walk in the door at home INVEST IN YOUR FIRM/INVEST PLUG INTO A PODCAST • Change your phone settings: IN YOURSELF There are a ton of practice Notifications/Do Not Disturb The only way to grow your firm, management tips and legal news • Place a hairband around your practice, client base, etc. is to invest available via podcasts. Try some phone both in your firm and invest in of these: 5 Minute Marketing, The yourself: networking, learning the Christy Wright Show, Fight Hustle One study found that the average law, client development, marketing, End Hurry, The Law Entrepreneur, cell phone user touches their phone investing money back in the firm, and Off the Record with James Bell. 2,617 times per day and spends 3 and investing time in yourself create (Heather) hours and 15 minutes on their phone a balanced life. (Brandon) per day. Use these tips to help you PHONE/FAX: GO VIRTUAL break your cell phone addiction. HAVE A HOBBY AND LIVE A Phone: use VOIP. Fax: use internet (Heather) COLORFUL LIFE fax. This primarily pertains to Although you may thoroughly faxes, as internet fax is the way of BEWARE OF ONLINE enjoy the practice of law, get out the now and future. You will be ADVERTISING TRAPS and do something totally unrelated able to fax and receive faxes from A LOT of empty promises, with very to law that you enjoy. Doing so anywhere and will save money on little return on investment. You will will definitely create some lasting toner and paper. In the realm of the get a lot of proposals from purported memories in your life. (Shelice) new COVID-19 world, this is a must. advertising/marketing companies (Brandon) from around the country/world BE A MENTOR promising a lot of different things in Proverbs 11:25 states: “A generous STICK TO YOUR SCHEDULE the advertising/marketing realm that person will prosper; whoever Although there will be times when simply are not achievable. Ask other refreshes others will be refreshed.” the unexpected occurs, do your best attorneys to see what they do to Lawyers should give their time and to stick to your schedule so that you try and pick out viable advertising/ talents to making the profession complete the tasks you set out to marketing options. (Brandon) better. Be a mentor. (Michael achieve. (Shelice) GET ADEQUATE SLEEP CALENDAR YOUR BE A CHEERFUL GIVER If you are not well rested, you will PERSONAL TIME Proverbs 19:17 states: “Whoever is not perform well in anything. Your • Get up 30 minutes early kind to the poor lends to the Lord, body and mind need to have down • Leave the office 30 and he will reward them for what time to reset so you are at the top minutes early they have done.” Lawyers should of your game at the start of the next • Don’t eat your lunch at be givers and lead the way in day. (Shelice) your desk philanthropic endeavors in their If a task is on your calendar you are communities. (Michael) YOUR NAME MEANS SOMETHING more likely to do it. When I train for Proverbs 22:1 states: “A good name a mini marathon, I am more likely BREAK YOUR CELL PHONE is more desirable than great riches; to do my long run if it is scheduled ADDICTION to be esteemed is better than silver for a specific time on my calendar. • Set one cell phone free day or gold.” Your name and brand are (Heather) per week invaluable. Protect them. (Michael) • Challenge yourself to only call or text on your phone REGISTER FOR THE ISBA SOLO • Set daily usage limits: There are AND SMALL FIRM CONFERENCE apps for that! If you haven’t been to the Solo and Small Firm Conference you are missing out! Put it on your calendar
36 RES GESTAE • ISBA
Continued from page 16 Back in the Shepard Courtroom, a lifetime of stories, friends and the robed judges enter single file colleagues fill the courtroom with and take their seats in the jury box. their remembrances. This warm a lawyer in 1940. She was one of two The Bar looks on from the gallery. gathering is a fitting sendoff for an women in her law school class. After The court reporter is at hand to Evansville lawyer. The Bar President graduation, she became a law clerk record the proceedings. All have then brings the ceremony to a close, – the only woman clerk at the time assembled at this EBA memorial intoning, “A transcript will be made – for the Appellate Court of Indiana service to reminisce and honor the of the proceedings and kept as part of and the Indiana Supreme Court. She life of a departed lawyer. Although the official court records.” then came back home to Evansville the lawyer is no longer able to relay where she was one of only two women lawyers for many years. By the late 1970’s, the count of women attorneys had increased to a grand total of 10. Much more progress has “Most interviews bring to life colorful characters been made in the years since; the EBA now has 125 women members. from years past. One lawyer was literally a colorful character because of the colorful suits he wore, Most interviews bring to life colorful characters from years past. One including red and pink.” lawyer was literally a colorful character because of the colorful suits he wore, including red and pink. His personal life was likewise colorful; he had been married nine times and traveled to every country in the world. This oft married, well- traveled lawyer was also known for ALTERNATIVE DISPUTE RESOLUTION his civility and generous treatment of new lawyers. His advice to them EXPERIENCED was that the lawyers in town were all on a small boat and would be PROBLEM SOLVER seeing a lot of each other, so there RESULTS DRIVEN was no use in making things harder than they needed to be. Evansville lawyers continue to embrace this credo. MEDIATING SINCE 1991 LITIGATING SINCE 1977 At the end of one interview, the lawyer describes his career as “just kind of average.” His work had been normal general practice fare, In-person and Virtual Mediations Available mostly adoptions, probate matters, and collection cases. Although the Thomas C. Hays matters he handled may have been [email protected] typical for lawyers, his life’s work was by no means just average. A 317.453.8638 life spent in service to the rule of law and the peaceful resolution of human affairs is nothing less than 501 Indiana Avenue | Suite 200 | Indianapolis, IN 46202-6150 317.237.0500 | 800.237.0505 | F:317.630.2790 | lewiswagner.com majestic.
37 INBAR.ORG • MARCH 2021 ADVERTISING INFORMATION Email your classified word ad to Kelsey Kotnik, [email protected]. CLASSIFIEDS You will be billed upon publication. ISBA members: $0.60 per word, $20 minimum Nonmembers & nonlawyers: $0.90 per word, $30 minimum
EMPLOYMENT OPPORTUNITIES The firm is led by James Bopp, Jr., who is one with internal investigations prompted by of the country’s leading conservative attorneys complaints of wrongdoing or misconduct. AV RATED INSURANCE DEFENSE and currently serves as General Counsel for Attorneys Larry Evans and Lauren Kroeger, LITIGATION FIRM seeking an associate the National Right to Life Committee. He Hoeppner Wagner & Evans LLP, Valparaiso and attorney. Ideal candidate will have one has been named as one of the 100 Most Merrillville Indiana. hwelaw.com (1) to three (3) years litigation experience. Influential Lawyers in America by the National Applicants must have excellent writing and Law Journal. Ideal candidates will have strong SPECIAL SERVICES communication skills. Competitive salary legal research and writing skills, demonstrated and benefits package. Send resume, writing ARROW FIDUCIARY SERVICES is now taking leadership ability, and a strong academic sample, law school transcript, and salary new clients. We focus on being your appointed record. Please send resume and cover letter to requirements in confidence to Huelat & Mack, Independent • Attorney-in-Fact, • Guardian, • [email protected]. P.C., 286 West Johnson Road, La Porte, Indiana Trustee, and • Executor. Please contact Kate
Borkowski, JD, at Arrow Fiduciary Services, 46350, or [email protected] EMPLOYMENT DESIRED [email protected], 317-840- THE BOPP LAW FIRM, P.C. IS SEEKING AN JIM SCHNEIDER, TAX IRS audits and 6525, www.ArrowFiduciaryServices.com. for its Terre Haute office. The ASSOCIATE investigations, appeals, Tax Court, payroll MEDICARE SET-ASIDES & LIEN firm has a national litigation and appellate tax and trust fund penalty cases, non-filers RESOLUTIONS Susan V. Mason, Esq., practice specializing in campaign finance and and back tax returns, records reconstruction, MSCC, has provided all aspects of Medicare election law and regularly appears in the U.S. payment plans, penalty abatement, liens compliance on Indiana claims for over 10 years. Supreme Court where it has won 9 of 14 cases. and levies, [email protected], For custom service, contact 412-302-8880 or 317-844-1303. Over 40 years in practice. Child Support Software [email protected]. Indiana attorney INDIANAPOLIS IMMIGRATION attorney references available. Indiana seeks professional or co-counsel positions MISSING HEIRS & WITNESSES located, SUPPORT MASTER™ with Indiana attorneys in the practice of intestate heirs verified. Complete family immigration law. Over 25 years’ experience All Calculations lineage establishment. Mark E. Walker & All Worksheets in immigration. Will handle adjustment of Company, LLC – Indiana Private Investigator Large Incomes status, change of status, labor certificates and Firm; 765-724-3260. Arrearage and Interest other matters. Also, will attend interviews
at Indianapolis Immigration Office. Thomas Professional Software Corporation MISCELLANEOUS Fast, accurate support R. Ruge, Lewis & Kappes, P.C., 317-639-1210, calculations since 1989 [email protected] BARGAIN Furniture and law library. 574-534-1511 POB 716 812/781-1422 CALIFORNIA LAWYER since 1966. AV rated. RETIRED LAWYERS. Law office for sale or for Mount Vernon marc.edwin.hawley Member ISBA. Father and brother practiced in IN 47620 @gmail.com Marion. Enjoys interacting with Indiana lawyers. rent near Louisville. Call 812-883-2291, email Handles transactions, ancillary probates [email protected]. www.supportmastersoftware.com and litigation in CA and federal courts. Law Offices of John R. Browne III, a Professional 600+ appeals Corporation; 2121 N. California Blvd. Ste. 30+ years experience 875, Walnut Creek, CA 94596; 415-421-6700; [email protected]; Stone Law Office www.jbrownelaw.com & Legal Research WORKER’S COMPENSATION Indianapolis 26 W. 8th St., P.O. Box 1322 attorney Charles A. Carlock seeks referrals on Anderson, IN 46015 Worker’s Compensation cases statewide. Tele., 765/644-0331 800/879-6329 317-573-5282 or 844-415-1461. 765/644-2629 (fax) [email protected] ATTORNEYS AVAILABLE FOR INTERNAL INVESTIGATONS. Attorneys available for David W. Stone IV Cynthia A. Eggert Attorney Paralegal Internal investigations. Northwest Indiana attorneys are available to assist employers
38 RES GESTAE • ISBA
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