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U.S. judge sanctions Indianapolis law firm

Michael W. Hoskins
January 1, 2009
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A federal judge has sanctioned an Indianapolis law firm that employed a few attorneys he says helped abuse the discovery process, failed to correct misleading or false statements made by its client, and didn't properly turn over to the court or opposing counsel key documents relating to an environmental contamination case out of Southern Indiana. In a 66-page order issued Friday, U.S. District Judge Larry McKinney in the Southern District of Indiana determined that Bose McKinney & Evans should be sanctioned for its attorneys' actions that "skated the edge of its responsibility," and for acting like "a chameleon" in becoming indistinguishable from its client and allowing that client to evade the truth. "The Court notes that it may be unusual to sanction a law firm for conduct that violates the Federal Rules of Civil Procedure," the judge wrote. "However, in this case, where three partners of the firm had knowledge of its client's apparent disregard for those rules and failed to properly supervise an associate and paralegal who had knowledge of adverse facts that remained undisclosed to the opposing party, the Court can only conclude that the firm must be held accountable under its inherent authority to deter such conduct in the future." Specifically, the judge's order focuses on former Bose attorneys Richard VanRheenen and Amy Cueller, who firm leaders asked to leave late last year because of this case. A declaration submitted to the court by Bose Managing Partner Kendall Crook shows that VanRheenen voluntarily resigned his partnership effective Jan. 1, 2009, and remained on a limited contract attorney basis until Feb. 20 to transition his practice and clients to a new firm; Cueller declined to resign and was fired Jan. 6. Others mentioned include partner Kathleen Lucas, who remains at the firm; former associate Matthew Klein and former partner Jan Nelson, both of whom are no longer listed on the firm's Web site; and an unnamed paralegal who assisted on the case. In a statement issued to Indiana Lawyer today, Crook wrote, "This remains a pending matter and we intend to work diligently to seek an appropriate resolution. We have taken this matter extremely seriously and took prompt action to address the issues described in the Court order. The two principal litigators involved in this case are no longer associated with the firm." The case, 1100 West LLC v. Red Spot Paint & Varnish Co., No. 1:05-CV-1670, involves a business's 7-acre site in the Evansville area that 1100 West claims was heavily contaminated with toxic chemicals from the nearby Red Spot property. After filing a state court suit in 2003 about the alleged contamination, 1100 West took the case to federal court in 2005 and sought injunctive relief under the federal Resource Conservation and Recovery Act. 1100 West asked the judge to order the removal of all the chemicals near its property and for the company to stop discharging any of that hazardous and solid waste from its nearby property. A central issue in the case was whether particular chemicals were used at the site, and both sides debated during discovery whether those chemicals were ever stored or used at the Red Spot site. Former Red Spot president and board chairman, Charles Storms, and environmental manager Susan Henry, testified throughout the litigation that the company hadn't used or stored specific chemicals. But discovery withheld from the court and opposing counsel showed otherwise, Judge McKinney wrote, and he noted that the company continued pressing that claim up to October 2008 when those previously withheld documents were discovered. Lucas began as Red Spot's counsel in 2003 to enroll its property in the voluntary remediation program. Lucas later brought in VanRheenen as the primary litigator before Cueller joined the case, according to the order, and the others assisted throughout the years. In October 2008, attorneys for 1100 West filed a motion for sanctions and after a two-day hearing on May 6 and 7, 2009, the judge issued his decision late last week. He found the conduct goes back to at least the summer of 2006, and that both Henry and Storms had on several occasions misrepresented facts. As a result, Judge McKinney entered a default judgment against Red Spot and determined the company had forfeited the right to have these issues determined on the merits. "But, BME, through both Cueller and VanRhennen and, to a lesser extent, Lucas, had opportunities to steer Red Spot, particularly Henry and Storms, on a different path and it never did," the judge wrote. "If all BME had was one individual who wished to ignore a small amount of information, it would be one thing. In this case, however, the evidence that Red Spot had used (those chemicals) was too persuasive for BME to continue to ignore." Judge McKinney later wrote, "Being a zealous lawyer does not mean zealously believing your client in light of evidence to the contrary." The attorneys for 1100 West have until Aug. 4 to submit a proposed remedial plan for its property, and a show cause hearing is set for Nov. 4 to allow Red Spot to respond to the appropriateness of that plan. Judge McKinney also ordered that 1100 West is entitled to attorneys' fees and costs from all discovery dating back to May 23, 2006, and for the fees and costs associated with the sanctions' motions and hearings. A report is due by mid-July on those costs, and Judge McKinney has ordered that Red Spot and Bose McKinney shall each pay one-half of those determined costs.

Let us know what you think about the sanctions at our blog, First Impressions.
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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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