AG files suit against suspended city judge

Attorney General Greg Zoeller filed suit Dec. 18 in Knox Circuit Court against non-attorney Bicknell City Judge David Andrew Moreland, who's charged with five counts of Class D felony theft that was discovered during an audit by the Indiana State Board of Accounts in August.

The former judge and his wife, Cindy, who served as city court clerk, are accused of stealing nearly $21,000 since he became city judge Jan. 1, 2008. The Indiana Supreme Court suspended Judge Moreland in October and he's now facing five counts of misconduct. The civil suit filed by the attorney general seeks recovery of the public funds, plus costs and prejudgment interest to reimburse Bicknell. Knox Circuit Court granted a temporary restraining order prohibiting Moreland from transferring, selling, or otherwise disposing of financial assets the state might seek for recovery.

This is the second ongoing misconduct case against a judge filed recently. The other case targets LaPorte Superior Judge Jennifer Evans Koethe, who is accused of misrepresenting the truth and obstructing justice following an incident in late 2008 when she shot herself in the head at her home. Judge Koethe was elected to the bench in 2008.

– Michael W. Hoskins A lawyer for a man on Indiana's death row says his client should receive a third trial because of testimony that shouldn't have been allowed during his second trial.

The Indiana Supreme Court heard arguments Dec. 22 in Wayne D. Kubsch v. State, 71S00-0708-PD-335, a postconviction case from St. Joseph Superior Court involving the man who's been twice convicted for killing his wife, her ex-husband and their 10-year-old son in Mishawaka in 1998. Prosecutors have argued that Kubsch killed his wife to collect a $575,000 life insurance policy.

He was first sentenced to death in 2000, but the state justices ordered a new trial in 2003 because the jury had improperly viewed Kubsch's videotaped statement. Kubsch was convicted a second time, but now the defense is pushing for a third trial.

In the recent Supreme Court arguments, Kubsch's state public defender Steven Schutte argued that the judgment should be reversed because during the 2003 trial the judge shouldn't have allowed hearsay testimony that Kubsch had bragged while in the county jail about killing a child, and that an insurance official's testimony that the company didn't pay out benefits for his wife's death was improper.

Deputy Attorney General James Martin argued for the state, saying the defense move had been intended to weaken an earlier witness's testimony. He also said the insurance official never explicitly said why the company chose not to pay benefits to Kubsch, and any inferences by the jury would have been speculation.

The arguments didn't focus on another defense argument – that St. Joseph County Prosecutor Michael Dvorak should have recused himself from Kubsch's second trial because he had represented a man charged with conspiring with Kubsch in the killings. Charges against that man were later dropped.

– Michael W. Hoskins Two sex offenders serving or who had completed their 10-year registration period shouldn't have been required to re-register

Appeals ruled Dec. 17.

In Michael Greer and John Maggi, on their own behalf and on behalf a class of those similarly situated v. Edwin Buss, et al., No. 49A02-0903-CV-243, the appellate court found the Marion Superior Court erred in granting summary judgment for Edwin Buss, Commissioner of the Indiana Department of Correction, and other defendants in Greer and Maggi's suit that argued they didn't have to re-register as sex offenders for a second 10-year period.

The two filed for a proposed class action lawsuit seeking declaratory and injunctive relief with respect to the DOC's policy that individuals convicted of certain sex or violent offenses requiring a 10-year registration period must re-register for another 10 years if convicted of any criminal offense.

Greer, convicted of child molesting in 1991, registered in 1996 and was no longer required to register in 2006; but a drunken-driving conviction several months later that year led to the DOC saying he had to re-register again until 2016. Maggi was convicted of child pornography possession in Illinois in 1998 and required to register in Indiana when he moved here in 2003, but he pleaded guilty to a drunken-driving offense in 2004 and was told in 2008 – after his 10-year registration period had ended – that he had to re-register for another 10-year period because of the 2004 conviction.

The statute requiring registration for 10 years changed July 1, 2008, which added language about an offender having to reregister if they are convicted of a sex or violent crime after their original registration period ended. It could be argued that prior to the addition of that language, the statute required registration upon a subsequent conviction for any offense or for an offense that itself required registration under the statute, Judge Carr for another decadelong period after being convicted of any other crime, the Indiana Court of Darden wrote. But using the rule of lenity, the appellate court concluded prior to the amendment, the statutory provision didn't specify that registration would be triggered for another 10-year period upon any future conviction.

The court also wrote that to interpret the statute as the DOC does would violate the prohibition on ex post facto laws with regards to Greer and Maggi.

The appellate judges did affirm denial of the class action certification because the plaintiffs failed to show "representativeness" and Greer and Maggi have factual and legal issues that separate them from others.

This suit follows the Indiana Supreme Court's ruling in April 2009 on Wallace v. State, 905 N.E.2d 371, 373 (Ind. 2009), which held that registration itself "imposes significant affirmative obligations and a severe stigma on every person to whom it applies," "resembles the punishment of shaming," and "makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk."

– Michael W. Hoskins

The Indiana State Bar Association wants the state's highest court to define the term "costs and expenses" as it's never done before, and in doing so order a company being prosecuted for the Unauthorized Practice of Law to have to pay those fees and disgorge any profits it shouldn't have made in the first place.

Hearing arguments Dec. 22 in State of Indiana, Ex. Rel. Indiana State Bar Association v. United Financial Systems Corp., No. 84S00-0810-MS-551, justices considered an issue of first impression on how far its scope extends in interpreting Administrative Disciplinary Rule 24, and what statutory considerations are involved in this litigation about whether an estate planning company engaged in unlawful legal work.

The ISBA initiated the action in October 2008 against estate planning service United Financial Systems in Indianapolis, accusing it of running a trust mill operation that engaged in unauthorized practice of law and wrongly collected more than $1 million from at least five families throughout the state.

What's at issue in this case is an ISBA request for a disgorgement of fees and reimbursement of the unlawful money collected by the company. The organization paid almost $36,965 in legal expenses on this case, according to court records.

The ISBA has never settled a UPL case in exchange for money from an individual or corporation accused of violating the state provisions, and no costs or fees have ever been received by the ISBA in the course of processing these cases, according to Bingham McHale attorney Kevin McGoff, who represents the state bar association in this case.

United Financial attorney Suzanna Hartzell-Baird with Bose McKinney & Evans argued that neither attorney fees nor disgorgement is appropriate in this case, and ordering anything would conflict with common law and precedent from the U.S. Supreme Court – specifically because it would be considered a sanction, and the company had received no notice so this goes against ex post facto law present in criminal cases. The company wasn't aware that could be possible when it engaged in litigation, so that might have influenced the decision to litigate, she said. She also disagreed with the commissioner's findings that United Financial had engaged in any frivolous or baseless claims, something she challenged justices to determine for themselves in reviewing the record.

Justices wondered about the implications this could have on the traditional American rule of not awarding these attorneys fees as part of the costs and expenses, and if it should be considered a cost of doing business. Justices Theodore Boehm and Frank Sullivan pondered whether disgorgement is considered a penalty, as Hartzell-Baird contended, or whether it was simply a return of money that any company engaged in UPL shouldn't have received in the first place.

Don Lundberg, who was executive secretary of the Disciplinary Commission that's admitted as amicus curiae, urged the court to narrowly craft a rule so that it doesn't impact the Disciplinary Commission or Attorney General's Office in future UPL actions. He also said it's appropriate for the court to exercise disgorgement power since that serves as a deterrent and public protection against future UPL.

– Michael W. Hoskins A longtime Disciplinary Commission staff attorney will temporarily lead the agency until a permanent executive secretary is chosen.

The Indiana Supreme Court's Disciplinary Commission voted Dec. 22 to name staff attorney Seth T. Pruden as interim executive secretary, filling in for Don Lundberg who will leave the position for private practice. Lundberg announced in November he'd be leaving that job after 18 years to become a partner and deputy general counsel at Indianapolis law firm Barnes & Thornburg, and he began the new job Jan. 2.

Pruden has worked as a staff attorney at the Disciplinary Commission since October 1996. He previously worked in private practice and as a public defender since being admitted to the bar in June 1984, and he also teaches an undergraduate legal ethics class at Indiana University-Purdue University Indianapolis.

Now, he's filling in as administrative head of the agency responsible for investigating and prosecuting claims of lawyer misconduct, supervising a staff of about 15 and acting as chief legal counsel to the nine-member commission.

A search is ongoing for a permanent executive secretary, and applications are being accepted through Jan. 29. Applications are posted online at the Commission's Web site at www.in.gov/judiciary/discipline, where more information about the agency is also available. Applicants can download applications and send to: Confidential Applications c/o Indiana Supreme Court Disciplinary Commission, 30 S. Meridian St., Suite 850, Indianapolis, IN 46204. All applications will be confidential.

Once applications are received, the Disciplinary Commission expects to review those as quickly as possible and discuss the issue at its February meeting. The commission will recommend finalists for consideration to the Indiana Supreme Court, which makes the ultimate decision on the appointment. No timeline for that has been established.

– Michael W. Hoskins

Attorneys must

consult with clients

The Indiana Supreme Court has suspended for three months a longtime attorney who prepared wills for clients without ever personally consulting with them.

Issuing the order

In the Matter of Paul J. Watts, No. 60S00-0809-DI-510, the justices ruled 4-1 that the Spencer-based attorney who's been practicing since 1974 should be suspended for 120 days starting Jan. 29, 2010.

The case stems from a previous disciplinary action involving Bloomington attorney David J. Colman, whom the justices suspended in May 2008 for three years after finding he'd engaged in attorney misconduct on multiple estate planning tasks through the years.

In the Watts case, Colman had consulted with G.A. – a 95-year-old man who lived alone and was hospitalized with a broken hip – in 2004 about his need for a will, and Colman contacted his friend, Watts, to prepare the will. G.A. was concerned about the state ending up with his assets upon his death, and he agreed to name Colman as his sole primary beneficiary with Colman's son as a contingent beneficiary.

Colman met and discussed the issues with G.A. privately and Watts never once met with G.A. or discussed the will with him, though one of Watts' paralegals did contact the man's physician and caseworker and communicated with Colman. The paralegal also went over the final will with G.A.

In this disciplinary case, Watts maintained throughout the proceedings that he'd done nothing wrong in failing to communicate with the client G.A. about the will, instead trusting Colman to communicate on his behalf and delegating to a paralegal any duty to explore G.A.'s competence or wishes about the will. Watts said until this disciplinary issue arose, it was his standard practice to draft wills for elderly, bedfast clients without consulting them and relying instead on information provided by family members in order to minimize legal fees for the clients.

Justices agreed with the findings of former Vigo Superior Judge Barbara Brugnaux, the hearing officer for Watts.

"Respondent's unwavering argument that he can ethically represent a client without communicating with the client displays a troubling lack of insight into his duty of undivided loyalty to the client," the court wrote. "If fees are a concern, the lawyer's options are to reduce the fees or decline the employment, not conduct it in breach of duty. Irreparable harm may well result if the client dies with a will that does not reflect his or her wishes. The need for independent advice is particularly acute if the client is vulnerable due to age or disability. A desire to minimize a client's legal fees cannot take precedence over the obligation to provide the independent legal counsel for which the fees are paid."

Justices pointed out that despite Watts' "lack of insight" into his misconduct, he no longer uses the no-contact practice with clients that put this case into motion. For that reason, a majority decided that the 120-day suspension is sufficient to give Watts "the opportunity to reflect on his misconduct, reassess his duties to his clients, and take any further corrective action" before being automatically reinstated to practice law.

Justice Frank Sullivan dissented on the discipline, believing it to be insufficient. –>