THE CONSTITUTION, FACTIONS, AND THE RULE OF LAW - FEATURING: PLUS
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APRIL 2021
FEATURING:
THE CONSTITUTION,
FACTIONS, AND THE
RULE OF LAW
PLUS
Discussing Racism and Inequities with Leaders of
Indiana Supreme Court and Indiana State Bar Association
VOL. 64 NO. 8
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VOL. 64 NO. 8
APRIL 2021
COVER STORY
10 THE CONSTITUTION
The Constitution, Factions, and the Rule of Law
By Judge Edward W. Najam, Jr.
CONTENTS
STAFF
PUBLISHER STATEMENT: Assistant CLE Director: Executive Director:
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3
I INNBBAARR. O
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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
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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
R E S G E STA E • I S B A
DEPARTMENTS
7 PRESIDENT'S PERSPECTIVE 27 ETHICS
14 ANNALS OF LAW 30 RECENT DECISIONS
16 OPEN CONVERSATIONS 38 CLASSIFIEDS
22 CRIMINAL JUSTICE NOTES
CONTENTS
CONTRIBUTORS
Michael E. Tolbert Angka Hinshaw Hon. G. Michael Witte
Partner Attorney Retired
Tolbert & Tolbert Marion County Public Defender gmwitte@hotmail.com
mtolbert@tolbertlegal.com angkahinshawesq@gmail.com
Contributors
Judge Edward W. Najam, Jr. Elizabeth Houdek Maggie L. Smith
Judge Indiana Public Defender Member
Indiana Supreme Court Indiana Public Defender Council Frost Brown Todd
edward.najam@courts.in.gov msmith@inbf.org mlsmith@fbtlaw.com
Norm Tabler David Frangos Brock C. Bucher
Retired Partner Attorney Associate
ntabler6@gmail.com Frangos Legal, LLC Frost Brown Todd
dcf@frangos-legal.com bbucher@fbtlaw.com
Justice Steven David
Justice
Indiana Supreme Court
steven.david@courts.in.gov
5
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6
R E S G E STA E • I S B A
President's Perspective
Music, Lawyers, and Riots:
The Blurred Lines of the
First Amendment and
Professional Conduct
By Michael E. Tolbert
PRESIDENT'S PERSPECTIVE
O
n January 6, 2021, protestors office. Shockingly, some lawyers were also
marched to Capitol Hill where involved.
Congress was meeting to certify
Joe Biden as the 46th President of the To date, one of the most embarrassing
United States. While the House and experiences I have had as President of
Senate convened to confirm Biden’s the ISBA was fielding phone calls from
Electoral College victory, an angry colleagues, friends, and news media about
mob was gathering outside the Capitol. the participation of some Indiana lawyers
Before it was all over, about in the assault on the Capitol
800 rioters forced their way building. Apparently, some
inside. lawyers were brazen enough
to post about their potential
The aftermath was not pretty. involvement on social media.
At least 138 law enforcement In all fairness, Indiana was
officers suffered injuries not the only state to receive a
ranging from minor bruising professional black eye. A North
to major lacerations. Five Texas lawyer, Paul Davis, lost
people died. his job after a video surfaced
of his participation in the
Many professionals mayhem at the Capitol. Many
participated in the assault, individuals lost their jobs for
including a prominent participating in the assault and
lawmaker. Derrick Evans, a former have since been charged criminally.
House member in West Virginia, was
charged with entering a restricted area While the world watched the events
of the U.S. Capitol after livestream video unfold in horror, I searched to find the
footage was uncovered that showed him right words to explain to my family,
with rioters. He would later resign from colleagues, and news reporters just how
7
INBAR.ORG • APRIL 2021
any lawyer could be connected to were injured or killed after the song former President Trump just before
the Capitol assault. How did we get was posted to social media. In 2019, protesters stormed the Capitol
here? In a country that believes the U.S. Supreme Court declined building. Democrat impeachment
in the “safety valve theory” and to take Knox’s case which would managers said Trump also indicated
discourages prior restraint on have offered much needed clarity “you’ll never take back our country
speech, how could this happen? about what is considered “true with weakness. You have to show
Does the First Amendment provide threats” outside the confines of First strength, and you have to be strong.”
us all the same, unabridged right Amendment.
to share our views - even if those The impeachment managers laid
views are unpopular? Can the CAPITOL RECORDS: MUSIC out their case: For months before
Indiana lawyers that participated TO DRIVEBY protesters stormed the Capitol,
face discipline under our Rules of Trump brutally criticized election
Professional Conduct for their role in After the tragic events that took place officials for allegedly engaging
the assault on the Capitol? These are at the Capitol, a second impeachment in fraud. Despite evidence to the
all complicated questions for which contrary, he publicly said the
there is no easy answer. election was “rigged.” Trump urged
people to “fight” for him and not let
THE FIRST AMENDMENT DOES the election be stolen.
NOT PROVIDE FORT ‘KNOX’ "Unlike Knox, Trump has
PROTECTION not been charged Like Jamal Knox, Trump
communicated his message through
After being arrested in 2012, criminally for his social media, albeit a different
aspiring Pittsburg rap artist Jamal comments leading up platform. Knox used Facebook and
Knox wrote a song titled, “F#@% YouTube to get his message out.
tha Police.” Ironically, another song
to the assault." Trump used Twitter and rallies to
with the same exact title sparked get his message across. Trump used
similar controversy when legendary tweets to inform his followers about
rap group NWA produced the track events, specifically about the rally
back in 1988. Much like the NWA trial of former President Donald just before the Capitol building was
rendition of “F#@% tha Police,” Trump began on February 9, 2021. stormed. Unlike Knox, who appeared
Knox’s version of the song was just Trump was charged with incitement to upload only one song on an
as controversial and caught the of insurrection. Like Knox’s lawyers, isolated day, Trump’s communication
ear of local authorities. This came Trump's lawyers mentioned he was steady all the way up to the
after the rapper posted the song had the right to express his opinion attack on the Capitol.
on his Facebook page and YouTube on the election results and other
account, disparaging the Pittsburgh matters based on the protections On February 13, 2021, the Senate
police officers he felt had wronged provided by the First Amendment of voted to acquit Trump of inciting
him. Posting the song led to Knox’s the U.S. Constitution, which protects an attack on the Capitol. Unlike
immediate arrest and subsequent freedom of speech. Technically, this Knox, Trump has not been charged
conviction. defense could only apply in a legal criminally for his comments leading
proceeding, not an impeachment up to the assault.
In 2013, Knox was found guilty of trial. The sole issue presented at
terroristic threats and conspiracy the impeachment proceeding was Taking the Work Uniform Off
to commit terroristic threats. whether Trump violated his oath
Knox’s arguments that his song of office by inciting insurrection. Considering recent events and some
was speech protected under the Nevertheless, the First Amendment lawyer participation in the storming
First Amendment were rejected. was the elephant in the room. of the Capitol, age-old debates
The court hearing Knox’s case held about privacy have resurfaced. The
that his song amounted to a “true "If you don't fight like hell you're not lawyers involved in the events at the
threat.” Knox was sentenced to time going to have a country anymore" Capitol were not operating in their
in prison for the song. No police were some of the words uttered by professional capacity. These lawyers
8
R E S G E STA E • I S B A
were on their own private time. To act that reflects adversely on the transform into something other
the extent they engaged in peaceful lawyer's honesty, trustworthiness or than a legal demonstration, they
protest, their activity would be fitness as a lawyer in other respects. should immediately leave the scene.
protected by the First Amendment. Rule 8.4 (d) also provides that it That is most likely the best way to
However, as we learned on January is professional misconduct for a swim the murky waters of the First
6, things can quickly escalate. A lawyer to engage in conduct that Amendment and the Indiana Rules
peaceful protest can turn into a is prejudicial to the administration of Professional Conduct.
riot in a matter of seconds. The of justice. Even if a lawyer has the
question always raised is whether cover of the First Amendment, that That, and never become a rapper.
lawyers can ever truly be “off the still may not be enough to shield
clock” and shielded from charges of them from their obligations under
professional misconduct arising out the Indiana Rules of Professional
of private activity. A close reading Conduct.
of the Indiana Rules of Professional
Conduct would suggest the answer to The lines drawn by the First
this question is no. Amendment and the Indiana Rules of
Professional Conduct are not always
Whenever the Indiana Rules of clear. However, in the context
Professional Conduct are discussed, of private activity engaged in by
lawyers often overlook the most lawyers, Preamble 5 may be the most
important part of the rules – the helpful. We should always strive to
preamble section. This section has conform to the requirements of the
good information and can provide law in business and personal affairs.
much needed guidance. Preamble 5 If a lawyer sees a peaceful protest
states:
“A lawyer's conduct should
conform to the requirements
of the law, both in professional
service to clients and in the
lawyer's business and personal
affairs. A lawyer should use
the law's procedures only for
legitimate purposes and not to
harass or intimidate others.
A lawyer should demonstrate
respect for the legal system and
for those who serve it, including
judges, other lawyers and public
officials. While it is a lawyer's
duty, when necessary, to challenge
the rectitude of official action, it
is also a lawyer's duty to uphold
legal process.”
In conjunction with Preamble 5, Rule
8.4 provides lawyers with guidance
relating to conduct that may occur
off the clock. Rule 8.4 (b) provides
that it is professional misconduct
for a lawyer to commit a criminal
9
INBAR.ORG • APRIL 2021
THE
CONSTITUTION,
FACTIONS,
AND THE
RULE OF LAW 1
10
R E S G E STA E • I S B AFEATURE
By Judge Edward W. Najam, Jr.2
I
n 1878 British Prime Minister William Gladstone
wrote:
[T]he American Constitution is, so far as I can see,
the most wonderful work ever struck off at a given
time by the brain and purpose of man.3
He was right. Our Constitution was no accident. The
Founders were an extraordinary gathering of intellectual
firepower. They were thoughtful, well-educated men
familiar with the great 17th and 18th century English
and French political theorists, and they were motivated
by the highest purpose. They were students of history
and political philosophy, students of government,
and students of human nature. And in the summer of
1787—just as Prime Minister Gladstone later said—they
discovered a recipe for the most remarkable system of
self-government ever created.
The Constitutional Convention imagined a new form of
government that was a hypothetical. It has often been
told that when the convention adjourned, a woman
confronted Benjamin Franklin and asked him, “what
have we got[,] a republic or a monarchy[?]” Franklin
responded, “A republic if you can keep it.”4 From that
comment our former Governor Mitch Daniels fashioned
the title for his 2011 book Keeping the Republic: Saving
America by Trusting Americans as did Justice Neil
Gorsuch for his 2019 book A Republic, If You Can Keep It.
And Christine Barbour and Gerald Wright, on the Indiana
University Bloomington political science faculty, are co-
authors of an American government textbook entitled,
Keeping the Republic: Power and Citizenship in American
Politics, now in its 10th edition.
Preservation of the rule of law has been our nation’s
response to Benjamin Franklin’s challenge. The rule of
law has been the glue, the common denominator, the
foundation – whichever metaphor you prefer – which
has enabled us in Benjamin Franklin’s words to “keep the
Republic” and preserve our representative democracy.
The Constitution was designed to compensate for human
nature and contain political factions as threats to the
rule of law. But the Constitution is not self-sufficient. It
11
INBAR.ORG • APRIL 2021requires assistance from an engaged and is based on respect for the are openly debated, enacted, and
citizenry, a traditional free press, and individual. This contrasts with the published, and fairly administered
an independent judiciary. legal systems of totalitarian regimes by officials who are accountable
that do not rely upon the consent of both to the law and to the people
THE RULE OF LAW the governed and do not respect the who elected them.
individual.
The rule of law is the condition The rule of law in America is derived
precedent for all worthy human The rule of law is, of course, not from English legal tradition and
endeavor and a well-ordered confined to the relationship between traces its origins to the Magna Carta,
and just society. The rule of law the citizen and the state. The rule the great charter issued in 1215 by
is the essential condition for the of law also applies to the countless King John of England 806 years ago.
preservation of life, liberty, and private encounters and transactions In Chapter 39 of the Magna Carta,
property, or as Thomas Jefferson that occur every day between King John promised his barons that,
wrote in the Declaration of individuals. The rule of law is the
Independence, “life, liberty and the invisible hand that both guarantees No free man shall be seized or
pursuit of happiness.”5 our civil rights and brings order imprisoned, or stripped of his rights
and predictability to our private or possessions, or outlawed or exiled,
Jefferson continued that, “to secure relationships. or deprived of his standing in any
these rights, Governments are way, nor will we proceed with force
instituted among Men, deriving their The rule of law is, as John Adams against him, or send others to do so,
just powers from the consent of the wrote in the Massachusetts except by the lawful judgment of his
governed.”6 Thus, the rule of law Constitution, a government of laws equals or by the law of the land.8
requires the consent of the governed and not of men7. It means that laws
12
R E S G E STA E • I S B AIn the Magna Carta, the term “the Constitution. These historic articles
law of the land” meant “the rule of explain the reasoning behind the
“In the compound
law” and included “due process structure of the Constitution and
of law.”9 republic of America, the comprise a magnificent treatise
power surrendered by on the theory of representative
The rule of law includes both government.
substantive legal rights and the the people is first
procedural rights, or due process, divided between two James Madison, a Virginia delegate
which secures them. Of course, to the Constitutional Convention,
substantive rights and procedural
distinct governments” is generally regarded as the father
rights are closely intertwined. A of the Constitution and the single
declaration of substantive rights complaint against the exercise best informed and most articulate
would be meaningless without of arbitrary power by a single authority for interpreting it.11 There
corresponding procedural rights to individual and for his abuse of were 55 delegates, and Madison
ensure them. that power. Thus, the rule of law and George Washington—who
was very much on the minds of the chaired the convention—were
The “due process” guarantee appears Founders. the only two delegates who later
in the Fifth Amendment, which became president.12 In Federalist
applies to the federal government, There was a spirited national debate No. 51, Madison described the task
and again in the Fourteenth over ratification of the proposed which confronted the Constitutional
Amendment, which applies to Constitution. Three of the Founders, Convention as follows: “In framing
the states. Both Amendments Alexander Hamilton, James Madison, a government which is to be
state that “no person shall be and John Jay, wrote 85 articles
deprived of life, liberty or property known as The Federalist Papers Continued on page 32...
without due process of law.”10 An to persuade the states to ratify the
equivalent provision appears in
Article 1, Section 12, of the Indiana
Constitution. INDIANO LAW GROUP LLC
The Magna Carta’s recognition of
“the law of the land” was a turning
point in the history of Western
civilization. The legacy of the Magna
Carta surrounds us. For many
years, and until recently, the Magna
Carta was the first document in the
hardbound volume of the Indiana
Code.
The Magna Carta was and remains
significant because it declared that
the law of the land and the rule
of law would control a man’s life,
liberty, and property rather than the
arbitrary and capricious whim of the
king.
THE FRAMING OF THE
CONSTITUTION
The Declaration of Independence in
1776 was largely a bill of particulars
against King George III, a detailed
13
INBAR.ORG • APRIL 2021ANNALS OF LAW
By Norm Tabler
The Difference
Between Speaking a
Lie and Texting One
S
antwon Davis now knows the difference between
speaking a lie and texting one. Sadly, he learned it
the hard way.
SANTWON TAKES TIME OFF
Santwon was employed at a Fortune 500 company in
Atlanta. At the company’s COVID-19 training program in
March 2020, he was delighted to learn that any employee
testing positive for the virus would receive paid time off.
14
R E S G E STA E • I S B ASantwon telephoned his supervisor days were futile. He was terminated company decided to make a federal
to reported that he had tested at the end of the second day. case of it.
positive for COVID and would
email documentation, including THE STAKES GROW HIGHER FOR THE DEPARTMENT OF JUSTICE
quarantine instructions. BOTH SIDES STEPS IN
By telephone the plant manager In normal times, a low-level It took the FBI no time at all to gather
requested a copy of the test results employee’s fraudulent claim of sick irrefutable evidence of Santwon’s
and reminded Santwon that positive leave costs the company relatively fraud. It took even less time for
results would require the plant to little. But the age of COVID is not the Department of Justice to file
shut down for cleaning, as well as a normal time. The day of the HR a criminal complaint. Santwon
quarantining all employees who had manager’s telephone conversation was indicted for committing
had contact with Santwon. and text with Santwon, the plant fraud through interstate wire
closed for a thorough cleaning. It communications, i.e., his texts and
Santwon emailed a document titled continued to pay the salaries of email.
“work/school excuse letter,” reciting the employees who were required
that he had been admitted to a to quarantine. The cost exceeded Caught red-handed, Santwon
Wellstar hospital on March 20 and $100,000. pleaded guilty, having learned too
must quarantine for 14 days. late the difference between speaking
In normal times, an employee caught a lie and texting one.
SOMETHING LOOKED WRONG falsely claiming paid sick leave faces,
at most, firing a risk that Santwon The case is United States v. Davis,
Santwon’s letter aroused suspicions. was clearly willing to run. But, N.D. GA.
First, the letter didn’t say that again, these are not normal times.
Santwon had been diagnosed or Not content with firing Santwon, the
treated for COVID. Second, there
were no test results. Third, there
was no letterhead or signature. Most
puzzling of all, the letter said that
Santwon had been discharged in
November, some four months before
his admission date.
A call to the hospital revealed that
it did not provide COVID testing
and that there was no record of
Santwon’s treatment.
Reached by telephone, Santwon told
the company’s HR manager that
he now had additional symptoms
and was back at the hospital for
treatment. The manager reminded
Santwon of the steps the company
would need to take if he tested
positive. When the manager texted
Santwon for confirmation of their
telephone conversation, Santwon
texted back, “Okay.”
The company’s repeated efforts to
contact Santwon over the next two
15
INBAR.ORG • APRIL 2021OPEN CONVERSATIONS
By Justice Steven David &
Angka Hinshaw
Discussing Racism and
Inequities with Leaders
of Indiana Supreme Court
and Indiana State Bar
Association
U
nlike most years, many people ended 2020
exhausted, defeated and ready for change. Many
of those individuals are ready to shift gears and
recalibrate old ways. These New Year’s resolutions are
not focused on recalibrating the physical body, but the
mind. 2020 left many, particularly people of color, hurt,
betrayed, unheard, and feeling others viewed their
lives as dispensable. The list goes on. Although some
individuals may feel unheard, there are many who are
listening and have been all along. The Indiana State Bar
Association with the support of the Indiana Supreme
Court premiered Open Conversations: Racism and Racial
Injustice. On January 29, 2021, we debuted the live
programming part of Open Conversations hoping for an
audience of at least 20 to 30 people. We were amazed
16
R E S G E STA E • I S B Awhen the program drew more better to extinguish racism.” After Under the leadership of ISBA
than 500 registrants with a waiting issuing the statement, she received President Tolbert, the state bar
list. Members of our profession negative and positive comments created an Equity Task Force that
demonstrated they were eager to from lawyers and judges. Her is comprised of some of the best
hear from our state bar and state response, in essence, was that we legal minds in the state to address
court leadership and were hungry must continue the fight for justice inequities within our profession
to learn more so they can do better. for all and negative comments would and the legal system. The task force
The premier program featured the not curtail the efforts of the Indiana will focus on four areas: civil legal
leaders of the legal profession – Supreme Court. aid, policing/prosecuting policies,
Indiana Supreme Court Chief Justice legislation, and mentorship/diversity
Loretta Rush and Indiana State in the profession.
Bar Association President Michael
Tolbert.
INDIANAPOLIS ATTORNEY ANGKA
HINSHAW KICKED OFF THE
PROGRAM THIS WAY:
The death of George Floyd has
sparked a powerful social justice
movement that hasn't existed since
the 1960s. We find ourselves again
discussing the victimization and the
inequities experienced by people of
law These struggles are real and still
exist within the legal profession and
resonate in other industries. The
purpose of these conversations is to
enlighten minds of the experiences
of people of color within our
profession and the laws that govern
us as members of our communities. I
hope you will leave this conversation
with a new perspective that is
empathetic of individuals whose
experiences are different than
your own and for others a renewed
strength to continue to achieve.
The discussion began with a dive
into Chief Justice Rush’s June 2020
“Statement on Race and Equity”
and the thought process leading
up to the statement. She said
events surrounding that time and
the demands for equity were too
to grave to ignore and required a
response. Her statement was read by
many. For marginalized individuals,
it was a nod that conveyed “I see
you, I hear you, and society must do
17
INBAR.ORG • APRIL 2021President Tolbert gave an abridged King Jr. The book he read from is So, with that thought in mind, where
story of his pathway to the practice Where Do We Go From Here: Chaos do we go from here? It’s up to you.
of law and shared some of the or Community. After the formal The feedback from the program has
racial barriers he overcame and the program ended, the conversation been astounding. Many practitioners
stereotypes that were imposed upon continued with an informal session told us they felt their struggles with
him as Black man. He discussed his that was attended by more than 115 inequities had been acknowledged
experiences with micro-aggression, judges and lawyers. and substantiated, others felt
a term some audience members optimistic that a positive change in
were unfamiliar with while others Justice Steven David concluded the our profession is on the horizon,
had experienced it numerous times program with a quote from a fellow while others desired to be better
throughout their careers. Columbus, Indiana, native, the equipped to understand the subtle
industrialist and civil rights advocate tones of racism and how to combat
To attempt to capture every aspect J. Irwin Miller: it. The program hosts and organizers
of the program in this article would have read all the feedback and all
do it injustice – we encourage you “The most important service to the questions posed. For the rest
to view it if you haven’t already others is service to those who are of the year, we will give voices of
seen it. The beauty of the Open not like yourself.” the unheard a platform to share
Conversations program is the ability experiences and have authentic
to be authentic, ask tough questions Justice David asked attendees to conversations about racism. The
about racism, and provide a platform think about that concept as they left program series will also share the
to share experiences. President the program and went about their experiences of different races within
Tolbert ended the formal program daily lives. people of color. Join us in an open
by sharing some of the lesser-known conversation.
writings of Dr. Martin Luther
18
R E S G E STA E • I S B ASOLO & SMALL FIRM CONFERENCE,
FEATURING STORIES OF
RESILIENCE, SOMALI PIRATES,
AND SERIAL KILLERS
By RG Staff
A
t this year’s Solo and
Small Firm Conference,
we celebrate resilient
lawyers. The hurdlers. The pivoters.
The prevailers. The solo and small
firm attorneys.
The Solo and Small Firm Conference
will help you master any challenge
thrown your way. You’ll walk away
with referrals, practice tips, and a
renewed sense of passion for your
practice.
This year’s conference will be a
hybrid event—both an in-person
(at French Lick Resort) and digital
experience. The virtual experience
gives attendees access to the highly-
regarded learning opportunities
that the conference has boasted
for years, plus is designed to create
opportunity for connections that
many virtual CLE lack. The in-person
experience is for those itching to
connect in-person, but who are
willing to strictly adhere to health
and safety requirements.
REGISTER EARLY FOR BONUS CLE
Those who register early will receive
access to additional CLE programs
geared to expanding the solo and
small firm practitioner’s skillsets.
19
INBAR.ORG • APRIL 2021Register by the early bird deadline on how to embrace change by of Sam” David Berkowitz and the
of April 29. The Bonus CLE will be collaborating with it, and moments “BTK Killer,” Dennis Rader. He
provided soon after the conference is of heroism as she describes her has also served as a consultant on
concluded. miraculous rescue by the US Navy's the JonBenet Ramsey case, “The
SEAL Team VI. West Memphis Three” case and the
KEYNOTES Amanda Knox case.
Overcoming Impossible Odds: A John’s longtime partner & co-writer,
Story of Resilience and Heroism Mark Olshaker, will moderate
Jessica Buchanan, NYT Bestselling the discussion on the evolution of
author of 'Impossible Odds' will “We know how important criminal investigative analysis/
share with us her harrowing the in-person Solo & criminal profiling within the FBI and
experience of surviving 93 days as the development of investigative
a hostage at the hands of dozens
Small Firm Conference is tools from the crime scene to the
of Somali pirates in a place that to many practitioners.” court room.
can only be described as hell.
Through her storytelling, she will Note: John & Mark will be joining
take us from the point of horrifying us from the east coast and this
realization of her initial abduction, presentation will be live-streamed
and the subsequent road that led to both in-person and virtual
her to realizing she had a unique Inside the MindHunter: An attendees.
opportunity for self discovery in the Afternoon with John Douglas
midst of chaos. Jessica will share Legendary FBI profiler and founder VIRTUAL EXPERIENCE
personal moments of frustrations of the FBI’s Investigative Support
and heartbreak, moments of clarity Unit, John is the model for Jack The Solo & Small Firm Conference
and triumph, as well as a message of Crawford in the film “Silence has been well-known for the quality
inspiration that resonates with every of the Lambs” and Holden Ford of its programming for years. Each
single person who has survived a life in Netflix’s “Mindhunter.” Over CLE topic is hand selected by the
changing event, regardless of what his 25-year career with the FBI’s conference planning committee
it is. Investigative Support Unit, Douglas to ensure its relevance to solo and
interviewed hundreds of America’s small firm practitioners. Speakers
She will offer tangible takeaways on most notorious killers, from Charles are reviewed and vetted to ensure
building resilience, lessons learned Manson and Ted Bundy to “Son they are engaging. Attendees walk
away with practical knowledge
that they can apply to their practice
California Matters immediately.
If you have matters in California or referrals, we can help you. Please
contact Guy Kornblum or his office for information.
• $125 for members.
In addition to litigation and dispute resolution services, Guy also • Includes 18 hours of on-demand
serves as an expert witness in legal malpractice and cases relating to
insurance claims. CLE and a goodie kit mailed to
your home (if registered by April
Guy is a native Hoosier and alumnus of Indiana University. He is a
member of the Indiana and California bars, and certified in Civil Trial 29).
& Pretrial Practice Advocacy by the National Board of Trial Advocacy.
• Thursday’s CLE sessions will
Guy O. Kornblum A Professional Law Corporation be recorded and shared with
1388 Sutter St., Suite 805, San Francisco, CA 94109
Tel: 415.440.7800 | Fax: 415.440.7898 attendees afterwards.
gkornblum@kornblumlaw.com
• All of Fridays sessions (including
Guy O. Kornblum
gkornblum@kornbluwlaw.com keynotes) will be live-streamed
for virtual attendees to watch
Serious personal injury & wrongful death | Insurance coverage & bad faith | Professional liability | business disputes |
General civil litigation in real time, ask questions, and
For further discussion, contact David McNamer of counsel to the firm, at dfmcnamar@mcnamarlaw.com or
317.299.0160.
participate in the conversation.
www.kornblumlaw.com
20
R E S G E STA E • I S B A• Virtual attendees will have FEATURED CLE CLE/Ethics); Jill Carnell, Indiana
access to all CLE sessions Department of Administration ,
until July 2, allowing them to • Building Client Rapport in a Loretta Olesky, JLAP
participate in their preferred Virtual World (1hr CLE); Deann • Maximizing Your Success
CLE in real time and watch Farthing, Robinson & Farthing, in Mediation: A Primer for
anything they missed LLC Mediators, Lawyers and Parties
afterwards. • Tech Tips for a Remote Trial (1hr CME); Derrick Wilson,
(1hr CLE); Donna Bays, Bays Law Mattox & Wilson, LLP
IN-PERSON EXPERIENCE Office • Litigating in a Divided Nation:
• What to Do When the FBI Navigating Opinions and
We know how important the in- Knocks on Your Door (1hr Presumptions While Seeking
person Solo & Small Firm Conference Ethics); James Watson, Justice (1 hr CLE/Ethics); Claude
is to many practitioners. It’s a time Chief Division Counsel, FBI Ducloux, Attorney at Law and
to reconnect with colleagues while Indianapolis Office Director of Education, Ethics and
developing new connections. We • Mindfulness with Layers: The State Compliance, LawPay
are happy to be able to offer an Self Compassionate Solo (1 hr
in-person component to this year’s
conference, though with several
changes to ensure health and safety.
At the time of print, the in-person
VIP CELEBRATION
spaces available are nearing
capacity.
This year the SSFC will feature a VIP (very important
practitioner): YOU! Attorneys are so busy that we tend to
• $225 for members.
constantly look for what’s next. How often do you stop to
• Includes 10 hours in-person CLE
acknowledge and celebrate your wins—even the small ones?
plus 8 hours of on-demand
The Solo & Small Firm Conference will take moments to
CLE; conference meals, and a
celebrate your success and resilience. When you register,
personal care kit.
we’ll ask you to share a “win” from the past year. It could
• Please visit inbar.org/SSFC to
be something seemingly small such as finally remembering
learn about the health and safety
to unmute yourself on Zoom before talking, to something
guidelines that will be strictly
big such as launching your own firm. Throughout the
enforced.
conference we will learn about and celebrate resilience,
including our own.
21
INBAR.ORG • APRIL 2021CRIMINAL JUSTICE NOTES
By Elizabeth Houdek
LWOP SENTENCE AFFIRMED,
BELATED APPEAL
PERMITTED, & DOUBLE
JEOPARDY ANALYSIS
In January, the Indiana Supreme Court decided SUPREME COURT CASES
two criminal cases, one in which it rejected
claims of fundamental error and affirmed a Defendant speaks to the court through counsel
sentence of life without parole and another per
curium decision clarifying that a represented In Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000),
defendant speaks to the court through counsel. the Indiana Supreme Court articulated the point that
The Court of Appeals continued to develop its a represented defendant speaks to the court through
double jeopardy jurisprudence following the counsel. The court clarified that view in its per curium
Wadle and Powell cases, permitted a belated
opinion in Anderson v. State, No. 21S-CR-28, 2021 Ind.
appeal despite language in the plea agreement,
LEXIS 60 (Jan. 28, 2021), noting that “once counsel has
and found a guilty plea involuntary due to
been appointed, even if counsel has not yet entered an
inadequate translation. The full text of all
appearance, a defendant speaks to the court through
Indiana court decisions, including those issued
counsel.” Id. at 1. Because counsel had been appointed
not-for-publication, is available via Casemaker
at inbar.org or the Indiana Courts website at for the defendant, the trial court did not have to consider
in.gov/judiciary/opinions. his pro se motion for an early trial under Indiana
22
R E S G E STA E • I S B ACriminal Rule 4(B) and therefore Detective Cole’s, Nurse Birge’s, or Dr. impermissibly referred to its medical
acted within its discretion by Short’s testimony.” Slip Op. at 6. witness as an “expert” during her
disregarding it. Id. direct examination. Distinguishing
Nor did the court find fundamental Farmer v. State, 908 N.E.2d 1192,
Fundamental error claims rejected error in allowing the medical 1199 (Ind. Ct. App. 2009), which
in LWOP case providers to testify about the stages prohibits only trial judges from
of the victim's bruising and their calling witnesses “experts” in front
Justice Slaughter wrote for the opinions about the victim's injuries of the jury, the court noted that no
unanimous court in Tate v. State, No. and their source. Defendant waived rule prohibits the state from asking a
19S-LW-444, 2021 Ind. LEXIS 63 (Jan. his undeveloped argument that the witness about her history testifying
28, 2021), affirming the defendant’s witnesses were unqualified to give as an expert witness. Id.
sentence of life without parole, expert testimony and that their
holding testimony did not rest on reliable COURT OF APPEALS CASES
scientific data under Evidence Rule
The record contains substantial 702(b). The court concluded that the Guilty plea involuntary due
evidence of both the torture and defendant “has not shown that the to inadequate translation for
child-molest aggravators on which jury could not be fair and impartial Spanish-speaking defendant
the jury could reasonably rely. and that the trial judge needed
Excluding the torture and child- to intervene to make a fair trial In Bautista v. State, No. 20A-PC-1542,
molest aggravators would not have possible.” Slip Op. at 8. 2021 Ind. App. LEXIS 23 (Jan. 29,
altered the jury’s recommendation 2021), the defendant's guilty plea to
or the trial court’s decision. And The court also rejected the child molesting was not knowingly,
the murder-of-a-child aggravator, defendant's argument that the state intelligently, and voluntarily entered
proved beyond a reasonable doubt,
outweighs Tate’s intoxication.
“he did not agree to be
sentenced either to the
full twenty-five-year PROBATE
executed term, or to an
additional twelve years
LITIGATION
suspended, based on an Will Contests
improper aggravator.” Trust Disputes & Claims
Contested Guardianships
Jarrell B. Hammond Matthew C. Boldt
jhammond@lewiswagner.com mboldt@lewiswagner.com
Slip op. at 14
A detective and medical provider
testified regarding the underlying
incident and investigation, but “[b]
ecause Tate does not establish error 501 I N D I A N A AV E N U E � S U I T E 2 0 0
INDIANAPOLIS, INDIANA 46202-6150
under Rule 404(a)(1), and no such 317.237.0500 800.237.0505 F:317.630.2790
error is obvious on the face of the w w w. L e w i s Wa g n e r. c o m
record, the trial court did not commit
Available as Counsel or Co-counsel in All Indiana Counties
fundamental error in allowing
23
INBAR.ORG • APRIL 2021because the Spanish translation he In Crider v. State, 984 N.E.2d 618, 625 defendant is an “eligible defendant”
received at his guilty plea hearing (Ind. 2013), the Indiana Supreme pursuant to Post-Conviction Rule
did not adequately advise him of Court held that even when a waiver 2 because he would have had the
one of the rights required by Boykin of appellate review appears to be right to challenge his purportedly
v. Alabama, 395 U.S. 238 (1969), unqualified, a defendant retains unlawful sentence in a timely
namely, the right to confront the the right to appeal his sentence appeal notwithstanding the waiver
witnesses against him. when it is imposed contrary to provision in his plea agreement. Id.
law and the defendant did not at 14.
The Court of Appeals held Bautista agree to the specific sentence.
carried his initial burden of The plea agreement in Fields v. The Court of Appeals vacated
demonstrating that he failed to State, 20A-CR-1799, 2021 Ind. App. convictions in two cases after
receive an adequate advisement at LEXIS 28 (Jan. 26, 2021), included applying the post-Richardson
the guilty plea hearing that he had a provision that waived “the right substantive double jeopardy
the right to confront and cross- to appeal any sentence imposed frameworks set forth in Wadle
examine the witnesses against him, by the Court so long as the Court and Powell
and the State failed to show that sentences the defendant within the
the record as a whole nonetheless terms of this plea agreement” with The Indiana Supreme Court
demonstrated that Bautista sentencing “open to argument” “expressly overrule[d] the
understood this right and that he but with “a cap of 25 years on Richardson constitutional tests in
was waiving it by pleading guilty. any executed sentence.” Id. at 2. resolving claims of substantive
The Court of Appeals noted that double jeopardy,” adopting an
Bautista at 20. The court reversed while the defendant agreed to a analytical framework that applies
the denial of post-conviction relief maximum sentence of 25 years, the statutory rules of double
and remanded with instructions to “he did not agree to be sentenced jeopardy where a defendant’s
vacate the guilty plea. Id. either to the full twenty-five-year “single criminal act or transaction
executed term, or to an additional violates multiple statutes with
Notwithstanding waiver of appeal twelve years suspended, based on common elements and harms one
provision in plea agreement, belated an improper aggravator.” Id. at or more victims.” Wadle v. State, 151
appeal permitted under PC Rule 2 8. The court concluded that the N.E.3d 227, 235, 247 (Ind. 2020). In
a companion case, the court set out
the framework for analyzing claims
of multiplicity, or whether, when a
single criminal act or transaction
violates a single statute and results
in multiple injuries, the same act
may be punished twice as two counts
of the same offense. Powell v. State,
151 N.E.3d 256, 263 (Ind. 2021).
The Court of Appeals applied the
Wadle analysis in Hendricks v.
State, 20A-CR-690, 2021 Ind. App.
LEXIS 10 (Jan. 14, 2021). After
first determining “the offense of
conspiracy to commit robbery could
be an included offense of the felony
murder, as charged in this case”
and then reviewing the evidence
presented at trial, the court held
Continued on page 37...
24
R E S G E STA E • I S B AWHAT CAN SOLO,
SMALL FIRM
PRACTITIONERS
LEARN FROM PILOTS?
By David Frangos
Presented by the ISBA GP,
Solo & Small Firm Section
B
efore each flight, a good (and
smart) pilot will analyze the
weather conditions at the
departure airport, the en-route
weather, and the destination's
forecasted weather. In conducting
the analysis, the pilot will ask: Am I
going to be taking off into a storm?
Will it be a turbulent flight or a
smooth ride? Is it going to be a bright
and sunny trip, or will we be in the
clouds for most of the flight? Can we
make it to the destination, or do we
need an alternate plan? Analyzing
the weather is a fundamental step in
preparing for a successful and safe
flight.
Before taking on a new client, a
legal practitioner can learn from
the successful pilot by conducting a
similar "weather check." Regardless
of the prospective client's legal issue,
a new client's onboarding should
begin with a thorough case analysis
starting with the initial client
interview and continuing throughout
the case until final disposition.
25
INBAR.ORG • APRIL 2021In conducting the initial case The initial analysis of a new case is Continuous weather checks
analysis, the smart practitioner, an essential but often neglected step. throughout the case are an essential
like the pilot, will ask some of the A practitioner's failure to correctly component of a successful outcome
following questions: recognize the issues early in the case for your client. Like the pilot, the
can occur when the practitioner is practitioner may find themselves
Does this client have a legitimate anxious to take on a new client or navigating around a storm cloud or
legal issue on the merits? excited to litigate a particular type of two or may need to climb or descend
issue. In their haste, the practitioner due to turbulence. The skilled and
Are there any storm cells (deadlines) may not correctly evaluate the prepared practitioner will handle
fast approaching? "weather." these issues with ease.
Can the prospective client afford Like a foolish pilot flying blindly Keeping a keen eye on the
representation? into a storm, a practitioner's failure destination weather, the practitioner,
to properly apprise themselves like the pilot, will ensure throughout
Is this going to be a turbulent ride or of the case's facts may lead to an the case that a safe and successful
smooth flying? undesirable outcome. To help approach and landing can be made.
mitigate those risks, a practitioner If not, the practitioner will be ready
Are you going to be in the clouds for should take the time to interview to divert to an alternate airport or, if
most of the case, or will the visibility the prospective client, apprise necessary will return to their home
be clear? themselves of the facts of the base to try another day.
case, research relevant law,
And, at your destination airport, collaborate with other attorneys, David C. Frangos, Esq. is a retired
will the weather be good (available and then develop a reasonable and military pilot and practices as a solo
remedy), or is a safe approach manageable litigation plan (flight practitioner at Frangos Legal, LLC.
and landing questionable or even plan).
possible?
26
R E S G E STA E • I S B AETHICS
By Hon. G. Michael Witte
REFLECTIONS ON
CHANGES TO LAWYER
DISCIPLINE PROCESS
L
ike the U.S. Constitution, the Rules of Professional 13 disbarments, 17 license resignations, 18 suspensions
Conduct comprise a living document that expands without automatic reinstatement, and 17 short or stayed
and contracts over time through amendment suspensions with probation. This desk has accounted for
and interpretation. After serving nearly 11 years as the most case dispositions and the most severe sanctions
the Executive Director of the Disciplinary Commission, within the agency since its inception.
this writer retired in February 2021. Indiana’s Rules of
Professional Conduct as well as the Rules of Admission By comparison, in the 10 years prior to 2014, there were
and Discipline underwent noted growth and some only 8 disbarments for all areas of lawyer misconduct.
retraction during that time. Since May 1, 2014, there have been a total of 20
disbarments, 13 of which have been related to trust
TRUST ACCOUNT FOCUS account and fiduciary responsibilities. A dedication of
resources to a specific problem area has garnered results.
In 2013, the commission decided to dedicate one of its
seven litigation lawyers to solely work trust account TRADE NAME AMENDMENTS
matters. Trust account investigation requires a knack for
reviewing financial spreadsheets, crunching numbers, In 2006, Indiana absolutely prohibited law firm trade
and reconstructing accounts. From May 1, 2014, through names. Three Indiana attorneys practicing under the
February 1, 2021, the trust account desk has generated trade name Attorneys of Aboite, LLC received public
27
INBAR.ORG • APRIL 2021reprimands for violating Rule 7.5.1 discipline charges against 60 to A private caution letter2 was not
Aboite is a township in Allen County. 65 attorneys per year. Today, that in the commission’s disposition
number is in the 30 to 35 range toolbox until 2017. Observers have
After 2009, Rule 7.5 was amended annually. Implementation of an noted that the court is issuing fewer
to allow lawyer and law firm trade electronic case management system reprimands than in past years, and
names in a very limited fashion. that it appears the court is more
A trade name had to contain a attracted to suspending a lawyer’s
lawyer’s name and could only license. The reality is that the
contain words that (1) identified reprimand reduction correlates with
“A new frontier of
a field of law concentration; or (2) the number of caution letters issued
described a geographic location of lawyer social media each year since 2017.
the firm’s office; or (3) indicated a
and electronic
language fluency. These restrictions One area where caution letters are
were removed on January 1, 2021. messaging ethical useful today is lawyer advertising.
A trade name is now permissible traps has evolved.” Twenty years ago, lawyer
if it is truthful and not misleading. advertising was primarily in print
Today, Attorneys of Aboite would be media. Improper ads could not
a permissible trade name under Rule be retracted or recalled from the
7.5. in 2012 and elimination of a glaring print distribution chain. Imagine
backlog are several actions that have trying to recall every single phone
CAUTION LETTER impacted the reduction, but there book that had an unethical lawyer
are other developments that proved ad. Violations of this nature were
The first decade of this century saw effective. almost always the source of formal
the commission bringing formal misconduct charges and a public
reprimand.
As advertising moved into the
internet age, enforcement of the
ALTERN A TI V E D I SPUTE R ES O L U T I O N Rules of Professional Conduct
adjusted to the changing landscape.
EXPERIENCED It is much easier to issue a caution
letter to a lawyer to edit an online
P R O B L E M S O LV E R
ad or webpage containing unethical
R E S U LT S D R I V E N messaging than it is to spend nine
months or more to accomplish the
same result through the filing of
formal charges.
M ED I AT I N G SI N C E 1 9 9 1
LI T I G AT I N G SI N C E 1 9 7 7 ADVISORY OPINIONS
AND GUIDANCE
In-person and Virtual Mediations Available
Lawyers have quickly adapted
to social media platforms like
Facebook, Twitter, Instagram,
Thomas C. Hays and YouTube. Lawyers can reach
thays@lewiswagner.com a broader audience at a cheaper
317.453.8638 cost, and consumers can respond
to, share, or re-publish lawyer
messages, as well as review and rate
501 Indiana Avenue | Suite 200 | Indianapolis, IN 46202-6150 lawyer services. A new frontier of
317.237.0500 | 800.237.0505 | F:317.630.2790 | lewiswagner.com lawyer social media and electronic
messaging ethical traps has evolved.
28
R E S G E STA E • I S B ASeveral key Indiana discipline cases
in the past decade had a social media
element in their facts.3
In addition to enforcing the rules
for social media-related misconduct,
the commission turned to proactive
misconduct prevention in 2018.
It began issuing formal written
advisory opinions for the benefit of
the statewide bar. It also initiated an
online informal one-on-one guidance
service to lawyers who seek ethical
analysis. Formal advisory opinion
#1-20204 cautioned lawyers on these highlighted measures have In re Fairchild, 130 N.E.3d 95 (Ind.
vicarious liability for third-party accomplished the same. As for 2019) (lawyer was identified by social
comments on a lawyer’s social media those phone book ads, when is media participants as the perpetrator
account or for tagging the comments. the last time you picked up a of indecent exposure crimes); Matter
Third-party comments can easily phone book? of Hill, 144 N.E.3d 184 (Ind. 2020)
be ethically improper. The advisory (sanction aggravation weight given
opinion advised lawyers to patrol Footnotes: to lawyer’s advisory team’s use of
their own social media’s third-party social and mainstream media to
comments and tagging. Failure 1. Matter of Loomis, Grubbs and disparage battery victims); Matter of
to screen improper comments Wray, 905 N.E.2d 406 (Ind. 2009). Cooper, 19S-DI-418, 2021 WL 358627
can be deemed a ratification or Additionally, the lawyers falsely (Ind. Feb. 3, 2021) (elected prosecutor
acquiescence by the lawyer. claimed to be an LLC when they were, battered his girlfriend and used her
in fact, individual attorneys working cell phone to impersonate the victim
RULE 23 AMENDMENT in an office sharing relationship and and send fictitious messages to her
their purported LLC designation was social media network claiming that
Admission and Discipline Rule 23 not registered with the State Board of she started the fight and excused
defines the procedure for lawyer Law Examiners. Cooper).
discipline operations. It was 2. Admission and Discipline Rule 23, 4. Advisory Opinion #1-20: Third
completely rewritten in 2017. The Section (10)(a)(2) Party Comments or Tags on a
protracted rule has 30 sections. 3. Matter of Usher, 987 N.E.2d 1080 Lawyer’s Social Media
In addition to the creation of the (Ind. 2013) (lawyer created fake
previously mentioned caution email address under another firm’s
letter process, it created a one- domain and sent mass email message Child Support Software
year limitation on the length of a attacking the virtue of a female victim Indiana
discipline investigation. Extension who spurned the lawyer’s romantic SUPPORT MASTER™
of an investigation beyond one year advances); In re Anonymous, 6 N.E.3d All Calculations
requires court approval. The intent 903 (Ind. 2014) (lawyer vicariously All Worksheets
is to never return to last decade’s liable for improper testimonials Large Incomes
backlog. The rewrite also included linked by lawyer’s webpage to outside Arrearage and Interest
aligning trust account provisions third party comments); Matter of Professional Software Corporation
with 21st century banking practices Keaton, 29 N.E.3d 103 (Ind. 2015) Fast, accurate support
and providing “how to” templates for (use of revenge porn tactics against calculations since 1989
trust account record keeping. former female acquaintance); Matter
of Steele, 45 N.E.3d 777 (Ind. 2015) POB 716 812/781-1422
(lawyer disclosed client confidences in Mount Vernon marc.edwin.hawley
My scoutmaster taught his scouts
IN 47620 @gmail.com
to leave a campsite in better shape response to critical online review and
than when we arrived. I hope that manipulated positive online reviews); www.supportmastersoftware.com
29
INBAR.ORG • APRIL 2021You can also read
