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Court finds interview is not a violation of professional conduct rules

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A federal magistrate in Hammond has ruled there were no violations of the Indiana Professional Rules of Conduct when defense counsel interviewed a potential witness in preparation for trial after discovery had closed.

Magistrate Judge Andrew P. Rodovich issued the ruling this week in Thomas N. Simstad and Marla K. Simstad v. Gerald Scheub, et al., 2:07-CV-407.

Thomas and Marla Simstad filed their lawsuit in 2007 against Gerald Scheub and other members of the Lake County Advisory Planning Commission, Northern Indiana Public Services Co., and other defendants, alleging the defendants conspired to, among other things, “extort from developers compliance with Scheub’s political agenda through the planning commission.”

The Simstads are real estate developers. The planning commission denied their petition for a subdivision development, which the couple says met all commission requirements. The lawsuit alleges the denial was in part to retaliate against the Simstads, who opposed Scheub’s political agenda and who spoke against Ned Kovachevich being appointed executive director of the commission.

During a deposition by the defense counsel of one of the plaintiffs’ experts in August, the expert mentioned the name of Charles Sawochka, who allegedly heard statements that one of the defendants made about the plaintiffs. Sawochka worked for the Simstads approximately 10 years ago. A paralegal from the counsel’s law firm contacted Sawochka to set up an interview. He was later interviewed in preparation for trial after discovery had closed, which the plaintiffs argue violated the Rules of Professional Conduct 4.1, 4.3, 4.4. and 9.1. They say the defense counsel and paralegal were vague in setting up the interview and didn’t identify which party the firm represented.

Sawochka in an affidavit said to the best of his recollection the firm’s representation of the defendants was not revealed during the interview. The paralegal stated she followed protocol and told Sawochka she represented the defendants.

“Although Sawochka now represents that he was confused, the evidence does not suggest that defense counsel knew or had reason to know that Sawochka did not understand their role, and therefore they did not violate Rule 4.3,” Radovich wrote.

The magistrate judge also rejected the claim the paralegal was working without supervision, noting that the plaintiffs haven’t shown that a paralegal cannot conduct a preliminary interview, that the interview equates to unsupervised legal work or that the paralegal was not supervised.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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