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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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