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Magistrate denies any pre-bench wrongdoing

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A newly appointed federal magistrate in Indianapolis denies any misconduct or knowledge of wrongdoing that a judge says happened during a clean air trial last spring prior to her taking the bench.

The misconduct is alleged to have happened when she was an attorney representing Duke Energy on claims it failed to meet environmental standards at some of its power plants. Magistrate Debra McVicker Lynch filed a declaration Friday with the U.S. District Court for the Southern District of Indiana, defending her conduct as an attorney when she represented Duke Energy.

The two-page document comes in U.S., et al. v. Cinergy Corp, et al., 1:99, CV-1693, involving a nine-year-old case that culminated with a trial and jury verdict in May 2008. Jurors had found Cinergy - bought by Duke 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 themes at trial. Duke attorneys had presented arguments about the plaintiffs' "hired experts" versus the defense "engineer" witnesses, who had differing views on what kind of repair and modernization projects may have been happening at the power plants.

In a mid-December order, Judge McKinney found that Duke didn't disclose that it had a consulting agreement with witness Robert Batdorf, and had misrepresented his relationship with the company - whether he was a retired, unpaid former employee or a paid consultant.

The judge ordered a new trial for Duke because attorneys tainted the liability phase of the litigation. He is threatening to suspend counsel for Duke from practicing in the federal court, turning to a rarely used disciplinary power the court has. Local counsel is from Taft Stettinius & Hollister, which acquired Indianapolis firm Sommer Barnard last year. It's unclear whether any of the Taft attorneys in Indianapolis were involved in the representations made to the jury about the witness, but those counsel of record are Scott Alexander, Robert Clark, John Papageorge - and Lynch, who withdrew in October just before accepting her judicial post.

The company's principal counsel in the case is with the Washington, D.C., office of Sidley Austin. Indianapolis firm Barnes & Thornburg also recently entered an appearance in the case, representing Duke.

Judge McKinney demanded in December that all of Duke's counsel in this case as of May 5, 2008, show cause why they should not be suspended immediately from practice before the court and ordered to pay the plaintiffs' attorney fees. He wants to know what each knew about the status of the consulting agreement Duke had with the witness, and when that information was known. The deadline was today.

In her response, Magistrate Lynch wrote she didn't have any knowledge of the consulting agreement between Cinergy and Batdorf described in Judge McKinney's order before or during the trial, or while she was counsel of record for the company. She wrote that she became "generally aware" that a motion for a new trial after her withdrawal was based on an undisclosed matter, but she didn't find out about it in full until reading Judge McKinney's order. She also pointed out that her involvement in the trial and the two months beforehand was limited to about two-tenths of a billable hour, not including compiling or providing discovery responses, witness preparation, or trial strategy. Most of her tasks involved coordinating with the court and co-counsel regarding logical arrangements for various proceedings, she wrote.

"I declare under penalty of perjury that the foregoing is true and correct," her declaration ends, supplementing her request that the court fully discharge without any further action the show cause order as directed to her.

In a separate 38-page response filed Friday afternoon 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.

"Cinergy and its counsel respectfully request that this court find no misconduct occurred and take no disciplinary action against Cinergy or its counsel, allow its counsel to continue practice before this Court, and award no fees to Plaintiffs."

A 9 a.m. hearing is set for Tuesday in Judge McKinney's courtroom. Look for the Jan. 21-Feb. 3, 2009, issue of Indiana Lawyer for more coverage.

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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