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ISBA panel still studying ALJ issues

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Indiana Lawyer Rehearing

Gov. Mitch Daniels fired the state’s top utility regulator recently, citing ethical concerns about how a now-former administrative law judge presided over cases involving a regulated energy company leading up to his taking a job there.

The governor’s actions told those serving as state agency ALJs that the spirit of a mandatory one-year cooling-off rule applies to them and they should be careful about considering outside employment while presiding as neutral parties over administrative matters. That also raised more questions for an Indiana State Bar Association Legal Ethics Committee task force that’s been studying ALJ-specific issues since January.

“We are still in the information-gathering process, and this is much bigger than we all had anticipated,” said Vicki Wright, an attorney at Krieg DeVault who chairs the specialized task force.

The group has been studying the scope of ALJ duties and ethical obligations and whether those individuals should be required to have law licenses. The plan was to issue a report at the ISBA board of governors meeting Oct. 15, but it isn’t ready, Wright said. She added that the governor’s recent actions have prompted more review.

In terminating attorney David Lott Hardy as Indiana Utility Regulatory Commission chairman, the governor specifically pointed to the reason being the recent departure of general counsel Scott Storms, who took a job in late September as a lawyer in Duke Energy’s regulatory division.

Storms, who was admitted to the bar in 1989, was the agency’s chief legal advisor and served as ALJ. The governor said his taking a job somewhere directly involved in cases he’d recently presided over raised the “appearance of impropriety.”

David Pippen, the governor’s general counsel, sent a memo to all agency heads outlining an internal review that found Storms had been communicating with Duke about a job even while he was presiding over administrative hearings concerning the energy company.

“Additionally, the agency head was aware of the communications and did not remove the lawyer from matters for which the lawyer was now conflicted,” Pippen said in his memo, noting that Daniels has directed that administrative opinions over which Storms presided be reopened and reviewed “to ensure no undue influence was exerted in the decisions.”

In the memo, Pippen wrote that the governor considers the one-year cooling-off period to apply to anyone at the ALJ level, and that this matter specifically has been referred to the Inspector General to determine if any laws were broken or whether misinformation was presented to the Indiana Ethics Commission.

Though it’s not outlined which Duke cases are at issue, Storms had presided over a handful of matters involving the company – most significantly one relating to cost overruns at Duke’s Edwardsport generating plant. After questions arose late last month about Storms’ departure and new position, Duke said that he and the company had previously sought an advisory opinion from the commission about whether Storms would be subject to that one-year cooling-off period before being allowed to take a job at Duke. The commission found it didn’t apply because Storms wasn’t involved in the direct decision-making, but the panel also found that he couldn’t be involved as an attorney at Duke in any matters he might have presided over while working as an ALJ.

Following the governor’s announcement, the fallout worsened as Duke said it was placing Storms on administrative leave “pending the completion of a full evaluation.” The company did the same with its president and chief executive officer of Indiana operations, Mike Reed, who had started with Duke in June after serving as commissioner of the Indiana Department of Transportation. Reed previously served as executive director of the IURC under Daniels from 2006 to 2009.

Pippen reiterated that no ALJ who presides over information-gathering or order-drafting matters should engage in communications with regulated industries regarding potential jobs without recusing him or herself from cases involving that company.

Daniels immediately appointed as the new IURC chairman Jim Atterholt, who serves on the commission and is the state’s former insurance commissioner.

Hearing about the IURC matter, Wright said the task force is now using that issue to examine what it should do on the ALJ front.

“We’re stepping a little out of our subject matter when talking about non-lawyers,” she said. “I’m not sure where the end-product will end up, but we’re meeting with and reaching out to the executive branch to brainstorm.”

Rehearing "Unique type of judging: State bar association exploring ethical concerns about ALJs" IL Dec. 23, 2009-Jan. 5, 2010
 

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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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