2015 Year in Review

Indiana Lawyer turned 25 this year,which inspired us to take a look back at the issues and people making headlines in our paper in the early 1990s. Twenty-five years from now, people look back at the 2015 issues of Indiana Lawyer will read about e-filing, the defunct plan for the Marion County Criminal Justice Complex, Indiana Tech Law School’s failure to receive provisional accreditation, and Indiana Justice Brent Dickson’s pending retirement. 2015 also marks the year Indiana made national news for passing its Religious Freedom Restoration Act – and then backpedaling after protests – and Gov. Mike Pence’s request that Syrian refugees not be resettled in the state. Here are the highlights of what made headlines in the Indiana Lawyer in 2015.

E-filing kicks off in Hamilton County

Lawyers will have to file electronically in all Indiana state courts by the end of 2018, according to a plan overseen by Supreme Court Justice Steven David and Court of Appeals Judge Paul Mathias. Hamilton County got the ball rolling July 29 with the Indiana Supreme Court and Court of Appeals following in November. The Indiana Tax Court goes to e-filing in January 2016.

By year’s end, more than 130 state/local government users and approximately 550 other registered users have filed more than 2,200 electronic cases in Hamilton County. As part of the pilot project expansion to the appellate courts, the Indiana Public Defender, Marion County Public Defender and the Indiana attorney general’s office agreed to e-file their documents with the appellate clerk in existing appeals. All other e-filing registered users may e-file, but are not required.

Mathias said the response from attorneys has largely been, “Why hasn’t this happened before? What’s taken so long?”

“This is a big leap,” David said. “But if someone’s able to use Facebook, this should be a piece of cake.”

In order to fund the e-filing project, civil filing fees increased by $14 July 1 to support technology upgrades. The Supreme Court set up www.courts.in.gov/efile, to provide information on e-filing, such as a list of service providers and rules.•

The hoopla over RFRA dominates Statehouse

The passage of Indiana’s Religious Freedom Restoration Act caused businesses to speak out against the legislation and some even canceled travel to the state until an amendment was added clarifying the bill. As passed, Senate Bill 101 would prohibit any state laws that “substantially burden” a person’s ability to follow his or her religious beliefs. The bill’s definition of a person included religious institutions, businesses and associations.

Gov. Mike Pence characterized Indiana’s act, which was signed into law March 26, as “simply guidance to the courts.” But the controversy over claims the RFRA was anti-gay led legislators to pass an amendment April 2 meant to prevent providers from refusing service to a person based on sexual orientation or gender identity. Indiana Democrats wanted the legislation repealed.
 

The signing of the original bill led to an uproar from critics in Indiana and nationally that the bill would lead to discrimination in Indiana.

There was debate in the legal community whether the language of the original bill would have allowed gays, lesbians, bisexuals and transgendered people to be denied service.

Opponents of RFRA have called for Indiana’s Civil Rights Act to be expanded to cover the LGBT community. Indiana Senate Republicans released a proposal on Organization Day Nov. 17 that would extend state civil rights protections to LGBT people while also carving out broad exemptions for religious institutions and some small businesses that object to working with gay people.

Though the bill extends civil rights to LGBT people, it has notable exceptions. It would exempt wedding-related businesses with less than four employees from having to do work for a gay or lesbian couple. It would also exempt faith-based schools, adoption agencies and nonprofits from complying.

One provision would require transgender people to have established their gender identity for at least a year to pursue a discrimination complaint. The bill also explicitly states that it is not “discriminatory” for businesses and organizations to enforce rules and policies related to the use of bathrooms, dressing rooms and showers by transgender people. Democrats said they needed to study the bill to see exactly what it does – or doesn’t – do.

“We’re considering it a roadmap for discrimination and not a set of meaningful protections for LGBT people,” said Jennifer Pizer, a lawyer for Lambda Legal, which supports gay rights.•

Hoosier inhospitality

Indiana made national headlines again when Gov. Mike Pence joined several other governors in announcing their states would not accept refugees from Syria in light of the terrorist attacks in Paris on Nov. 13.

The American Civil Liberties Union of Indiana filed the federal lawsuit Nov. 23 on behalf of Indianapolis-based nonprofit Exodus Refugee Immigration, accusing Pence of violating the U.S. Constitution’s Equal Protection Clause and Title VI of the Civil Rights Act by accepting refugees from other countries but not from Syria.
 

“These are people who have been vetted extensively by the federal government and have been approved for resettlement. Our lawsuit is quite simple. It argues that the governor has no right to bar refugees because doing so clearly violates equal protection,” ACLU of Indiana legal director Ken Falk said during a news conference.

Falk added that he expects similar lawsuits to be filed against some of more than two dozen states – most with Republican governors, like Pence – that have taken actions similar to Indiana’s in suspending programs to resettle Syrian refugees.

Pence has said that the state is confident it has the legal authority to suspend the resettlement program relative to Syrian refugees in the state of Indiana and he believes it is “the proper course.”

Pence’s decision caused Exodus to reroute a family that was to settle in Indianapolis to Connecticut. Exodus announced in December it had resettled another Syrian family in Indiana despite Pence’s objections.

Exodus has settled 892 refugees, including some from Syria, in the past fiscal year in Indiana, according to the ACLU. The group is projected to settle about the same number during 2016, including 19 Syrians approved for refugee status by the federal government who are expected to arrive in the next few weeks or months, the ACLU said.•

Same-sex marriage extended nationwide

In 2014, same-sex marriage was legalized in Indiana after a federal judge found the state’s gay marriage ban unconstitutional, the 7th Circuit Court of Appeals affirmed and the Supreme Court of the United States declined to take the appeal involving the Indiana ruling. Then on June 26, in a 5-4 decision, SCOTUS held that couples have the right to marry anywhere in the U.S.

With same-sex marriage now legal, businesses and the government had to offer the same benefits to gay couples that opposite-sex couples received. The Justice Department announced that it would work to make sure that all federal benefits will be available equally to married couples across the country. With marriage being legal for all, some companies and organizations, such as Indiana University, began phasing out domestic partner benefits, while others expanded their benefit packages to include same- and opposite-sex couples.

Cummins, Dow Chemical Co., which has its subsidiary Dow ArgoSciences in Indiana, and Eli Lilly and Co. offer benefits for non-married partners, regardless of gender.

Eskenazi Health had expanded its benefits even more by providing insurance to an employee’s designated adult, enabling siblings, parents, another adult living in the household, and unmarried partners to be covered. Once the employee provides proof that the adult is living in the same household and has no access to employer health care, benefits will be extended under the health system’s family plan.

Some attorneys said companies that continue to offer benefits to unmarried same-sex couples but do not include unmarried opposite-sex couples could open themselves to discrimination lawsuits. In addition, entities that have self-funded benefit plans could get served with a discrimination complaint if they do not include same-sex couples in their coverage.•

A multimillion-dollar jail fails in Indianapolis

At the end of 2013, officials in Marion County announced plans to build a criminal justice complex that would house criminal courts, jails and other offices in one location. By mid-2015, the plan was dead. Some attorneys weren’t sold on the idea of locating the complex out of the heart of downtown Indianapolis. (The former GM stamping plant just west of downtown was selected as the location.)
 

The $1.75 billion center couldn’t get approval from the Indianapolis City-County Council, even after developer WMB Heartland Justice Partners presented pared-back plans to reduce the overall cost.

“Council leadership sustained a six-month coordinated effort to block this project from public vetting, while simultaneously attacking the administration for a lack of transparency,” said David Rosenberg, then-deputy chief of staff for Mayor Greg Ballard’s administration and his point person on the justice center, after the June 9 vote. “Of course, we would welcome the opportunity to discuss the justice center proposal in a constructive, public setting. But that opportunity has yet to materialize with the council.”

Ballard, a Republican, did not seek a third term as Indianapolis mayor, and several council members have said that’s a reason not to saddle a project of this magnitude on a future administration that had no input on it. Some councilors also criticized the process as lacking community input and council involvement in determining whether a public-private partnership should be preferred over traditional public-infrastructure financing options.

And even though the justice center proposal died, the city of Indianapolis is still on the hook for more than $11.2 million on consultant and contractor fees, which includes several Indianapolis law firms that worked on the project.•

Changes coming to Marion Superior judicial elections

For nearly 40 years, Marion Superior judges were elected in a unique way compared to other judges in Indiana. The Republican and Democratic parties “slated” ballot positions with candidates who made financial contributions to the parties – most recently five-figure contributions.

The slating process essentially made the general election pointless, because those candidates who won in primary elections were assured election because of the allocation of a set number of judgeships for each party. So in a year where there was an election to fill 20 judicial positions, voters received general election ballots in which they could vote for up to 20 candidates, but only 10 Republicans and 10 Democrats were listed on the ballot.

Chief Judge Richard Young of the U.S. District Court for the Southern District of Indiana ruled in 2014 the statute outlining how Marion Superior judges are elected was unconstitutional. The 7th Circuit affirmed in a Sept. 9, 2015, opinion.

“We agree with the district court that the Statute at issue burdens the right to cast a meaningful vote without sufficiently weighty interests to justify such a burden,” the 7th Circuit held in Common Cause Indiana v. Individual Members of the Indiana Election Commission, et al., 14-3300.

“We conclude that the precise interests (including partisan balance) put forward by the State do not justify the burden placed on the right to vote for judicial candidates for the Marion Superior Court. Therefore, the Statute violates the First and Fourteenth Amendments,” the panel held.

All but five Indiana counties, including Marion, choose trial court judges through direct, partisan election. It has yet to be determined how Superior judges will be chosen in the future. Key lawmakers suggested there’s no rush to find a fix, though, because the next Marion Superior judicial election won’t happen until 2018.

Reaching the finish line

Lawyers do a lot of things to relieve stress: swim, play tennis, cycle, drink. We met two lawyers this year who’ve also made a mark as runners. Eugene Lausch has the distinction of being one of only 10 people who have run every 500 Festival Mini-Marathon in Indianapolis. The retired lawyer began running in his youth and competed in high school and college. He enjoys running because it can clear the mind and help change ways of thinking.

“I worked in local government, and there were days when I would come home and wonder, ‘How is this issue going to work out?’ and I discovered running is a way to deal with those issues,” he said. “My wife would say, ‘Why don’t you go for a run?’ It was a proxy statement for saying ‘You’re really in a disagreeable mood.’”

Lausch, 76, retired after more than 40 years as an attorney for the city of Indianapolis. And Lausch reached a fitting milestone during this year’s race: he logged 500 miles running in the popular half-marathon.

If the thought of running 13.1 miles tires you out, imagine running a 155-mile race through the Gobi Desert. David McAvoy, general counsel of Eli Lilly & Co.’s emerging markets business, participated in the grueling race this June.

“I’m the kind of person that’s interested in combining sport(s) with the discovery of self and seeking adventures that run A to Z,” McAvoy said. “I’m looking at long, competitive events that help you learn about yourself and what your potential is. It’s a paradox, because you almost have to go where the wild things are in order to discover yourself.”

He originally planned on running a race in the Jordan Desert, but that was canceled due to ISIS activity. So he had 10 months to prepare for the six-day Gobi race. The shift in plans also brought to his attention The 4 Deserts Race Series. In addition to the Gobi March, the series has races in the Sahara, Atacama and in Antarctica. Only 150 people have finished all four, but that’s exactly what McAvoy intends to do.

“Believe it or not, it helps me as a lawyer,” McAvoy said. “Things I’ve learned from this have made me better for my clients at Eli Lilly … and when I go meet with the Chinese government to talk about access to medicines, (they say), ‘You ran the Gobi?’ It helps me relate to them when I’m out there.”

And if running doesn’t sound appealing, you could get a workout through fencing with other members of the legal community. Lawyers who participate in the sport say competing with the blade sharpens their legal acumen and attacks the stresses of the profession.

“I’m always thinking about what my opponent is going to do next,” said Bill Dummett, counsel for Interactive Intelligence Inc., who’s an active fencer and board member of the Indianapolis Fencing Club.

A large part of Dummett’s professional work involves negotiating contracts and licensing agreements. When he started practicing law, Dummett said he had a negotiating style and largely stuck to it. “Fencing taught me to realize the situation, adjust my style and act accordingly,” he said.•

Career changes

 

Indiana Supreme Court Justice Brent Dickson announced in November that he will retire from the state’s highest court before he reaches the mandatory retirement age of 75 in July 2016. He is the second-longest serving justice in Indiana history, joining the court in 1986. Those who’ve worked with Dickson almost uniformly use the word integrity when talking about him. Dickson contributed a large body of jurisprudence developing law around the Indiana Constitution on subjects including privileges and immunities, double jeopardy, property tax uniformity, religious freedom and education. He served as chief justice for two years after longtime Chief Justice Randall T. Shepard retired from the court until Justice Loretta Rush was selected as chief justice in 2014.

Dickson plans on continuing to work on the problem of unrepresented litigants, encouraging pro bono work and reforming problems he sees with the pretrial detention of defendants who can’t afford bail.

Indiana Court of Appeals Judge Ezra “Zeke” Friedlander retired from the court in August after nearly 23 years on the appellate bench. He has been an attorney for 50 years and plans on serving as a senior judge. During his time as a judge, he participated inexcess of 6,000 opinions and wrote more than 3,000. Marion Superior Judge Robert Altice Jr. succeeded him on the court. Steven Lancaster, another longtime Indiana Court of Appeals employee, retired in 2015. He spent 20 years as administrator of the court. He was replaced by Larry Morris, who spent 22 years serving as senior law clerk for Friedlander.

Judge Robert L. Miller in the U.S. District Court for the Northern District of Indiana, will take senior status at the end of 2015. He was appointed to the federal bench in 1985. During his tenure, he handled major cases, such as multidistrict litigation in which he ruled FedEx drivers are independent contractors, and even wrote the book on evidence – literally. Before he became a judge, he wrote the book “Indiana Evidence” based on the Indiana Rules of Evidence. He is in the process of completing the fourth edition. (See more about Miller on page 1.)

Samuel “Chic” Born will retire from the practice of law after 45 years. He was an employment law attorney for many years at Ice Miller LLP until a heart attack in 1996 caused him to reconsider his career path. He joined The Mediation Group LLC, from where he will retire at the end of 2015. Born had been president of both the Indianapolis Bar Association and Indiana State Bar Association.

Jon Laramore left big law and took on the role of executive director of Indiana Legal Services this year. Laramore, a former partner at Faegre Baker Daniels LLP and immediate past-president of the Indiana State Board of Law Examiners, started in the new position in February. He is only the second director to serve since the organization was started in the early 1970s under the leadership of previous executive director Norman Metzger.•

Indiana Tech denied provisional accreditation

Faculty and students at Indiana Tech Law School in Fort Wayne received bad news in June: The American Bar Association denied the school provisional accreditation, just four days after the council of the ABA Section of Legal Education and Admissions to the Bar met with law school officials.

“While we are disappointed not to receive accreditation at this time, we were encouraged that the council narrowed the issue we need to focus on, and we believe that the council has provided us with good feedback as we begin the reapplication process,” Indiana Tech Law School Dean Charles Cercone said.
 

The dean said the ABA council wants to see the law school better develop its curriculum and provide more academic support to its students. The school has touted its hands-on approach to legal education and, the dean said, has no plans to change direction.

The school has reapplied for accreditation and expects to hear from the ABA in June 2016.

A concern after the denial was that the students starting their third year would opt to transfer to an accredited law school. Indiana does not allow graduates of unaccredited law schools to sit for the bar exam. However, Cercone said in August that only one member of the Class of 2016 decided to leave because of that.

Also in August, the Indiana Supreme Court decided to allow the law school’s third-year students to apply to take the state bar exam in July 2016. But if the law school does not gain provisional accreditation, the graduates who applied to take the bar exam will not be eligible to sit for the test.

The incoming Class of 2018 has 15 students who have a median LSAT score of 151 and a median GPA of 3.42. This is the smallest group yet to enroll in the Fort Wayne law school that opened in 2013. The institution’s first two classes each had about 30 students, and the Class of 2017 came with a median LSAT of 148.•

Bad barristers

Fort Wayne attorney R. Mark Keaton lost his law license in April for stalking, intimidating and threatening a woman who ended a long-distance relationship with him. Keaton, who was in an intimate relationship with his daughter’s college roommate a decade ago, engaged in a “scorched earth” campaign when the woman discontinued the relationship in 2008. Keaton left expletive-filled messages on the woman’s voice mail and even posted explicit photos of the woman online.

David J. Steele, who operated Steele Legal Group LLC in Indianapolis, was disbarred for stealing about $150,000 from his clients, disclosing confidential client information for retaliation and amusement, and threatening and intimidating his office staff, according to the disbarment order.

In June, the Supreme Court suspended Indianapolis attorney Charles B. Blackwelder, who was sentenced in April to four years in the Department of Correction. He pleaded guilty in December 2014 to four Class B felony counts of securities fraud, enhanced under I.C. 23-19-5-1 because victims were 60 or older or their relationship to Blackwelder was based on religious affiliation. Blackwelder was criminally charged in Hamilton Superior Court with 20 felony security fraud counts and two charges of theft of at least $100,000. Blackwelder resigned from the bar in August.

He and his daughter Cara Grumme, of Yorktown, were accused of scamming more than 300 elderly Hoosiers of more than $19 million. The two agreed to pay restitution to victims in the amount of $19,379,104.23.

Anderson attorney Stephen W. Schuyler, 62, faces multiple felony counts for allegedly stealing as much as $500,000 from clients’ estates. His law license was suspended in September for non-cooperation with the Disciplinary Commission. A jury trial is scheduled for Feb. 9, 2016, in Madison Circuit Court 3.

Clark Holesinger, of Valparaiso, was sentenced in August to 10 years in federal prison and ordered to pay nearly $1 million in restitution to clients he defrauded. The ex-attorney faces five felony counts in state court for stealing from business clients he represented.

William Conour, who is serving a 10-year sentence in federal prison for stealing nearly $7 million from clients, is set to be resentenced in January because there were standard uniform special conditions of post-sentence release handed down that do not apply in his case. U.S. District Chief Judge Richard Young in the Southern District of Indiana is presiding over Conour’s case, but Conour filed a motion late in the year seeking Young’s removal. He claimed that Young appears to be biased in favor of prosecutors because he had not yet ruled on Conour’s attorney’s request to withdraw from the case and allow Conour to represent himself.

The 7th Circuit denied Conour’s mandamus petition Dec. 21.•

The IL survey says

We thought this year, our 25th anniversary in print, would be a good time to survey the legal community in Indiana and see what the state of the practice is here. More than 500 lawyers told us their thoughts on a variety of topics, including law firm management, social media use and number of pro bono hours performed. Indiana University Maurer School of Law professor William Henderson, who analyzed the results of the survey and made a presentation at an Indiana Lawyer continuing legal education program, said the survey reveals signs of fundamental change in the legal profession.

A few interesting things jumped out from the responses. Lawyers mostly said they are satisfied in their careers, but wouldn’t recommend someone become an attorney. The biggest factor impacting satisfaction? Age. Those with 31 or more years in practice reported the highest satisfaction but that happiness quotient dropped as the number of years on the job decreased.

Henderson noted the responses from younger attorneys show the opportunities that were available 25 or 30 years ago might not be available, or at least not in plain sight as they once had been.

“This is not something to panic over, but it is something to begin to have conversations about because the young people are the future of this profession,” he said.

Another interesting tidbit from the survey: Nearly 70 percent of respondents believe performing pro bono work and reporting those hours should be optional. The responses likely reflect the unpopularity of Indiana’s new pro bono reporting rule.•

Tracking pro bono hours

Why is the new pro bono rule somewhat controversial? Some worry that the reporting rule will lead to requiring attorneys to perform some amount of pro bono work. In September 2014, the Indiana Supreme Court approved the requirement for attorneys to report their pro bono hours when they update their annual registration. Attorneys had to start keeping track of their hours beginning Jan. 1, 2015, in order to report them on their 2016 registration.

The Indiana Supreme Court amended the state’s new pro bono reporting rule in 2015, narrowing the focus to measuring only the direct representation given to indigent litigants. What qualifies as reportable pro bono has been refined.

Under the amended rule:

• Attorneys will only be able to count the hours of legal services they provide to individuals of limited means without charge or at a charge of less than half the normal rate. Originally, the rule allowed lawyers to count work on nonprofit boards and sections of the bar associations.

• Contributions of tangible property, like office furniture or computers, along with money can qualify as reportable pro bono. The donations must be made either to the Indiana Bar Foundation, any of the state’s pro bono districts or a legal aid society in Indiana.

• The specific income requirement has been removed. Now direct assistance given to “individuals reasonably believed to be of limited means” may count as reportable pro bono. The Indiana Supreme Court did not want attorneys having to spend time determining if the client was financially eligible for free or reduced-rate legal help, Indiana Tax Judge Martha Wentworth said. Wentworth served as chair of the Indiana Pro Bono Commission in 2015.

• The hours attorneys report are still confidential and they will not be made public either on an individual or firm-wide basis. Violating the rule will not subject the lawyer to discipline.

Wentworth reiterated the amended rule keeps the intent squarely on assessing how many hours attorneys are volunteering to represent clients. The hope is that the new rule will encourage other attorneys to donate their legal services to people in need of help.•