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Judge: No attorney discipline needed

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A federal judge in Indianapolis has decided disciplinary actions aren't needed against a handful of attorneys relating to their conduct in a clean air trial last year, though he hasn't changed his mind about setting aside the jury verdict and holding a new trial as a result of the behavior of in-house counsel.

U.S. District Judge Larry McKinney in the Southern District of Indiana issued an order late Monday in U.S., et al. v. Cinergy Corp, et al., 1:99-CV-1693, which involved a nine-year-old case that culminated with a trial and jury verdict in May 2008. Jurors had found that Cinergy - bought by Duke Energy in 2006 - violated federal rules at its Wabash plant in Terre Haute, but cleared the company regarding modifications made at four other plants in Indiana and Ohio.

Following that verdict, attorneys discovered a previously undisclosed consulting agreement with a witness that raised questions about the company's central theme at trial and whether it was tainted by misleading testimony. In mid-December, Judge McKinney ordered that Cinergy's legal team, including in-house counsel and some local lawyers working for the company, show cause as to why they shouldn't be sanctioned and suspended from practicing before the court.

Local counsel is from Taft Stettinius & Hollister: current attorneys Scott Alexander, Robert Clark and John Papageorge, as well as Debra McVicker Lynch who's since been appointed as a federal magistrate for the Southern District. The in-house counsels were Julie E. Ezell, Dean Moesser, and trial counsel Kathryn Thompson.

A hearing originally set for this morning was vacated after the judge issued an 11-page order late Monday, finding that no discipline is warranted but upholding his previous decision for a new trial.

"Setting aside a verdict is a harsh penalty... A harsh penalty called for by what the Court considers the egregious nature of the attorney inaction," Judge McKinney wrote. "The publishing of this and prior orders is sufficient. Further proceedings would create time consuming litigation threatening to overtake the issues of the case and draw time and energy from the Court's and the attorneys' task of bringing this litigation to a close with little delay as possible."

In his order, Judge McKinney wrote that most of the counsel involved - including those local attorneys - weren't aware of the agreement between Cinergy and a witness, or didn't have a hand in the trial testimony aspect.

In a 38-page response for the Duke/Cinergy counsel, Barnes & Thornburg attorneys John Maley and Larry Mackey disputed the court's findings of misconduct and wrote that counsel hadn't mislead anyone in the case. The brief also includes references from several prominent Indianapolis-area attorneys who've reviewed the issues and determined they are legal, ethical, and reasonable.

Magistrate Lynch filed a separate response, denying any misconduct or knowledge of wrongdoing. She wrote that after her withdrawal from the case in October, she became "generally aware" that a motion for a new trial was based on an undisclosed matter, but she didn't find out about it in full until reading Judge McKinney's order in December.

She also pointed out that her involvement in the trial and the two months beforehand was limited, and that she wasn't involved in compiling or providing discovery responses, witness preparation, or trial strategy. Most of her tasks involved coordinating with the court and co-counsel regarding logistical arrangements for various proceedings, she wrote, and her total time spent on the litigation in May 2008 amounted to only about two-tenths of a billable hour.

The judge accepted those declarations from most of the counsel involved, and the attorneys now have no further responsibility to the court. However, he also ordered that Duke's legal team pay the plaintiffs' attorney fees, and gave the plaintiffs 30 days to submit a statement about those costs. A bench trial is set for Feb. 2.

Look for the Jan. 21-Feb. 3 issue of Indiana Lawyer for more coverage.

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  1. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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