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Wednesday, March 15, 2017

Ind. Courts - Rule changes proposed, would impose duty of technological competence on Indiana lawyers and judges

Lawyer and media consultant Robert J. Ambrogi wrote October 2012 for the MassBar Association:

The legal profession underwent a sea change last month, but few lawyers even knew about it. In a historic but little-heralded move, the American Bar Association said that lawyers must be competent not only in the law and its practice, but also in technology.

The ABA's House of Delegates, meeting in August, voted to amend the comment to its Model Rule of Professional Conduct governing lawyer competence to make clear that a lawyer's skill set must include technology. * * *

There are some who argue that this urging of technological competence is too little, too late. It is hard to argue with that position. Although the 20/20 Commission's report alluded to "the sometimes bewildering pace of technological change," the fact is that lawyers have been using PCs since the late 1970s and the Internet for at least two decades.

From July 10, 2015, a must-read article at Lawyerist.com, by Megan Zavieh, headed "Luddite Lawyers Are Ethical Violations Waiting To Happen." The long story concludes:
New rules and comments on attorneys’ need to keep up with technology have begun to propagate, and more will follow. With substantive rules come ethical obligations and malpractice standards. The age of the law firm partner who can’t remember what Facebook is called, or who asks his secretary to print out his emails, or who goofs up a video conference during trial, is past. Technology is integral to the practice of law, from both a practical and ethical perspective.
From the Texas Lawyer, a January 1, 2017 article by Stave Thomas, headed "Legal Tech Skills Are No Longer Optional."

Robert Ambrogi reported December 28, 2016, at his blog Law Sites, that "Another State Adopts Duty of Technology Competence; Makes it 26."

Posted for comment this month by the Indiana Supreme Court Committee on Rules of Practice and Procedure, two proposed rule amendments, re Technology relevant to attorneys, and Technology relevant to judicial officials. The changes appears to conform to the 2012 ABA recommendation:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Courts

Ind. Decisions - The email attachment that is the object of Groth v. Pence is now public

Sofia Resnick & Amy Littlefield of Rewire News are reporting this afternoon - some quotes from the long story that should be read in full:

Rewire has obtained a political white paper that Vice President Mike Pence has spent more than two years fighting to keep secret.

This white paper details legal strategy shared with Republican governors in a 2014 email about the best way to challenge former President Barack Obama’s order to provide temporary deportation relief to certain undocumented immigrants. The paper has become a matter of public fascination, as it is the subject of a separate lawsuit filed against Pence in December 2014, when he was governor of Indiana. * * *

Rewire shared with Groth the white paper, which we obtained by filing records requests to other states who received Hodge’s email. As of publication time, public records officials in Idaho, North Carolina, and Wyoming sent us the white paper. Groth told Rewire in a phone interview he was ultimately surprised that Pence had been hiding what amounts to many of the same legal arguments made in Texas’ challenge to Obama’s immigration order.

“It really is baffling why the governor would choose to fight so hard to keep this document secret after all these years,” Groth said.

But the white paper, drafted by former Texas Deputy Solicitor General Andy Oldham, by itself reveals what immigration legal experts told Rewire are inherent contradictions between the arguments Pence and his fellow governors made in opposing Obama’s executive action, and the arguments Pence and the Trump administration are making in defending Trump’s recently revised Muslim ban. * * *

Groth told Rewire that he needs to confer with his attorney to figure out how to proceed with his legal challenge. He said that now seeing the white paper, he believes Pence was wrong to keep this document secret.

The white paper “openly is couched as an invitation to other states to join the anticipated Texas lawsuit against Pres. Obama’s humanitarian immigration actions,” Groth said in a follow-up email. “Because the document solicits Indiana’s involvement in that proposed lawsuit, it cannot be protected under the attorney-client exception to our public records law. … Pence has still failed to show there was an attorney-client relationship at the time Texas sent the white paper to him.”

Pence’s attorney in the public records lawsuit, Joseph Chapelle [of BT], confirmed with Rewire that the white paper we obtained is the same that is the subject of Groth’s public-records lawsuit.

“Mr. Pence is not the one seeking this appeal and is no longer a party to this lawsuit under court rules,” Chapelle told Rewire in an email. “It is the other party, Mr. Groth, who wants to keep this case alive. This development is yet another reason why the Indiana Supreme Court should not take this case and let it end now.” * * *

In addition to Groth’s lawsuit, Pence is facing scrutiny about his use of a private email account while he was the governor of Indiana.

The Indianapolis Star recently reported that Pence used the account to conduct state business; yet during the presidential election Pence criticized his running mate’s opponent, Hillary Clinton, for her use of a private email server while she was secretary of state.

ILB: Here is long list of prior ILB posts on Groth v. Pence.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Government

Law - NACDL Issues Groundbreaking Report and Recommendations on Police Body Cameras

A few quotes from the long news release, issued today (the the involvement of IU-McKinney's Prof. Schumm):

Washington, DC (Mar. 15, 2017) -- The National Association of Criminal Defense Lawyers (NACDL), with support from the Foundation for Criminal Justice (FCJ), today releases Policing Body Cameras: Policies and Procedures to Safeguard the Rights of the Accused. This report is the product of more than two years of careful research and deliberation. In this report, NACDL endorses the continued and wider use of body cameras as long as they are implemented with NACDL's policy recommendations, which are set forth below and in the report. With these protections in place, body cameras have the potential to better document encounters between police officers and civilians while mitigating competing concerns about their potential for misuse or abuse. The report and recommendations represent an important contribution to critical conversations and policymaking taking place throughout the country. * * *

The recommendations set forth in detail in this report will maximize cameras' use in protecting the public and the police alike, and in generating reliable criminal justice outcomes. Those recommendations are summarized below. * * *

NACDL thanks the Foundation for Criminal Justice for its support of the task force and Joel M. Schumm, Clinical Professor of Law at Indiana University Robert H. McKinney School of Law, for drafting this report.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (2):

In Virginia E. Mourning v. Allison Transmission, Inc. , a 16-page opinion, Chief Judge Vaidik writes:

This case involves the interplay between Indiana Trial Rules 12(C) and 12(B). A Trial Rule 12(C) motion for judgment on the pleadings is typically directed toward a determination of the substantive merits of the controversy. A Trial Rule 12(B) motion to dismiss, in contrast, is directed solely toward procedural defects or the statement of the plaintiff’s claim for relief and does not seek to determine the substantive merits of the controversy. However, a defense of failure to state a claim upon which relief can be granted can be raised under either Trial Rule 12(B)(6) or Trial Rule 12(C). When raised in a Trial Rule 12(C) motion, the court must treat the motion pursuant to Trial Rule 12(B)(6) and, if granted, give the plaintiff ten days to amend the complaint once as of right.

Here, Virginia Mourning sued Allison Transmission, Inc. claiming that it played a role in getting her fired from her long-time employer, Ternes Packaging. Mourning alleged tortious interference with an employment contract and defamation. Allison Transmission then filed an ambiguously worded “12(C) Motion to Dismiss” alleging that Mourning “failed to state a claim upon which relief may be granted” and that her claims failed “as a matter of law.” The trial court granted Allison Transmission’s motion and entered final judgment in its favor. Applying the above principles here, we find that Mourning sufficiently pled her defamation claim but not her tortious interference claim. We therefore reverse and remand this case to the trial court to give Mourning an opportunity to amend her complaint once as of right.

In Gary Hanks v. State of Indiana, a 22-page opinion, Judges Mathias writes:
Gary Hanks (“Hanks”) pleaded guilty in Clark Circuit Court to one count of Class A felony child molesting. Hanks collaterally attacks his plea as the product of the ineffective assistance of his trial counsel and as not knowingly, intelligently, and voluntarily made. Hanks’s petition for post-conviction relief on those grounds was denied by the court below.

When a defendant is deciding whether to expose himself to a sentencing judge’s absolute discretion, is local defense counsel constitutionally required to advise his client of the local judge’s sentencing practices in cases like his client’s? Because Hanks has not persuaded us that, as applied to the facts of his case, counsel was required to do so, we affirm as to the ineffective assistance claim. We remand for judgment on the voluntariness claim because it was raised but not resolved below.

NFP civil decisions today (7):

Larry W. Hollerbach and Jerri A. Hollerbach v. Kerri English and Steven English (mem. dec.)

Kimberly D. Hickman v. City of Austin (mem. dec.)

Daniel Hoagland v. Town of Clear Lake (mem. dec.)

In re the Termination of the Parent-Child Relationship of: K.Y. and G.Y. (Minor Children) and D.Y. (Father) v. The Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of: Co.S., E.S., Cl.S., P.S., and M.S. (minor children) and D.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

In re the Matter of the Termination of the Parent-Child Relationship of S.N. (Minor Child) and J.F. (Father) v. Indiana Department of Child Services (mem. dec.)

In the Matter of: K.M. and D.M., (Minor Children) Children in Need of Services and L.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (6):

Charmae L. Lesiewicz v. State of Indiana (mem. dec.)

Charlene Renier v. State of Indiana (mem. dec.)

Maurice E. Hilliard v. State of Indiana (mem. dec.)

Justice K. Kiama v. State of Indiana (mem.dec.)

Edward Smith v. State of Indiana (mem. dec.)

Terrell A. Dodd v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indiana Board of Law Examiners Portal is down

An applicant for the July bar has sent the ILB this note, which I've edited slightly:

I am emailing about the outage of the Indiana Bar Examiners website that allows individuals to work on and submit their applications to sit for the Indiana State Bar. I am a 3L at XXX. The application for the July bar, recently, opened at the beginning of March. It is due April 1, 2017.

I hoped to begin working on the online application this week, but when I went to the site I was greeted with "We're sorry...The Indiana Board of Law Examiners Portal is currently unavailable. Please try again later." The link to the site is http://www.in.gov/judiciary/ble/portal.html

This occurred all day long, yesterday. This morning, I tried to access the site again and received the same message. I just called the Bar Examiners office and they gave no explanation as to why the site was down.

They said they hoped the site would be up again soon, but would not indicate a timeframe. I asked if they would be extending the bar application deadline if the outage continued and they indicated that there were no plans for that as of now.

Right now, I can't even view the application to anticipate what information to gather. I am sure this would be of interest to others, as well, as many students are on pins and needles to get the application done.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Courts

Ind. Courts - Women head Indiana courts [Updated]

A reader has sent this message:

Ms. Oddi,

In honor of Women's History Month, I thought I would pass along an interesting fact that I have not heard highlighted. The highest judicial officers in and over the State of Indiana are now almost all women (the exception being the Chief Justice of the United States):

  • Justice Kagan (circuit justice for the Seventh Circuit)
  • Chief Judge Wood (CA 7)
  • Chief Justice Rush (Ind.)
  • Chief Judge Vaidik (Ind. Ct. App.)
  • Chief Judge Magnus-Stinson (S.D. Ind.)
  • Chief Judge Springmann (N.D. Ind.)
That is an impressive list. And it must surely be the first time in Indiana's history that all of these offices have been held by women at the same time.

I am a pretty loyal reader of law blog but haven't seen this noted anywhere. I apologize if I missed it. I just thought it was something worth pointing out.

ILB: Pretty remarkable, I certainly hadn't noticed! Thanks to the reader, who prefers anonymity.

[Updated almost immediately] A tweet from @Legallyageek: "@indianalawblog and of course, don't forget Chief Judge Robyn Moberly in the SD Bankruptcy Court

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Courts

About the ILB - An opportunity for your firm or company to become the ILB's exclusive sponsor

The Indianapolis law firm of Hoover Hull Turner has been the exclusive sponsor of the Indiana Law Blog since the spring of 2016. Its financial arrangement will end on April 30, 2017. HHT writes that it continues to be grateful for Marcia Oddi's tireless work in the name of public service, adding intelligent insight into coverage of new court decisions and legislative developments.

And the ILB, as I know do many you, thanks HHT for its strong and generous support over the past year.

The ILB is now looking for a new sponsor (or group of several sponsors) to step forward to support its mission, which began in 2003, of collecting and reporting on the news that matters to lawyers, judges and citizens across Indiana.

Contact me with serious inquiries. Thank you.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to About the Indiana Law Blog

Ind. Gov't. - Ticket bought in Tippecanoe County won the $435.3 million Powerball jackpot - local tax implications

Supplementing the earlier ILB posts re "Should Hoosiers be allowed to claim lottery winnings anonymously?", Jillian Ellison has this interesting story today in the Lafayette Journal-Courier. Some quotes:

LAFAYETTE, Ind. — When an anonymous winner from Tippecanoe County won the $435.3 million Powerball jackpot, the state and federal government took out $246.2 million in taxes.

But the county may not see its share — in the form of its 1.1 percent income tax — because the big winner claimed his jackpot as Bohemian Financial LLC.

From a taxation standpoint, that changed everything.

The winner walked away with $189.1 million in earnings. Had local income tax been paid on that, Tippecanoe County Treasurer Jennifer Weston said the county's coffers would have swelled by over $2 million.

Of the county's 1.1 percent income tax:

  • 0.6 percent goes toward economic development
  • 0.4 percent goes toward local libraries and townships
  • 0.1 percent goes to homestead credits
But due to the winner's formation of an LLC — short for "limited liability company" — that breakdown is moot. * * *

Larry DeBoer, professor of agricultural economics at Purdue University, said the formation of an LLC is not only a way of protecting the winner, but a way of avoiding income tax, as well.

"What this is, is sophisticated tax stuff," DeBoer said. "The money would go into a fund the winner doesn't touch, but then draws income out of."

Though the Powerball jackpot winner could move away from Tippecanoe County with his winnings, DeBoer said ultimately all of the taxes will have to be paid in the end, whether that's to his current county or another.

"With the LLC, he might find himself in a lower tax bracket as a corporation," he said. "This could be a way of putting it into an account to draw interest, but it will all be accounted for in the end."

The creation of the LLC by the winner, however, was a smart financial move, DeBoer said.

"I'm sure he is getting excellent tax advice on this," he said. "With those kinds of winnings, you couldn't afford not to."

ILB: Likely the tax impact from creation of the LLC would have been the same, whether or not the winner had elected to keep his/her name private. Additionally, the $435.3 would be decreased by about half if the winner elected, as most do, to take the lump sum.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Government

Ind. Gov't. - "Bill would send adoption notice to grandparents"

Shelby Mullis of TheStatehouseFile reports in a brief story in the Greensburg Daily News. Some quotes:

Some Indiana grandparents could soon receive notification of a child’s adoption if one lawmaker’s bill continues to make strides.

The idea for House Bill 1245 came to Rep. Mike Karickhoff, R-Kokomo, after what he calls a tragic case.

“There was a positive relationship between grandparents and the parent remarried after the grandparents’ daughter had passed, and visitation was cut off,” Karickhoff said. “The grandparent did not realize at the time of the adoption her visitation would be cut off.”

Karickhoff said had the grandparent been notified, she would have had the opportunity to choose whether she wanted to petition the court for visitation.

HB 1245 is an effort to prevent similar cases, ultimately granting a notification of adoption to grandparents with existing rights to petition for visitation of their grandchild.

The notice would make grandparents aware of possible visitation termination if they choose to not go to court through a separate action to seek a visitation order.

ILB: The story then quotes Court of Appeals Judge Margret Robb. It is unclear from the story whether Judge Robb provided testimony on the bill at the committee hearing or was interviewed by the reporter:
[Judge] Robb said the bill only serves as a “notice bill,” specifically for grandparents who, if they previously obtained a court order setting out their visitation rights, would continue to have those rights after an adoption.

“In summary, this bill is a piece of legislation designed to ensure fairness to grandparents so they know what their rights are with respect to their grandchildren,” she said. “It does not increase, decrease, alter or change those rights.”

Robb said notice would not be required in “stranger” adoptions, but only in adoptions through a stepparent and biologically related people, such as a sibling, aunt, uncle, niece or nephew.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Government