Indiana Lawyers Cannot Use Trade-Names

Another instance where the non-lawyers have us beat? I do not think so but still I thought it would be interesting to the general public.

Court reprimands attorneys for trade-name use

Three attorneys who practiced separately but advertised as an LLC were publicly reprimand by the Indiana Supreme Court for violating several Indiana Professional Conduct Rules by not letting clients know they didn't practice law as a firm.

The Supreme Court combined the disciplinary actions against J. Michael Loomis, Robert A. Grubbs, and Robert J. Wray into one order posted May 8 and agreed a public reprimand was the appropriate discipline for violating Rules 7.2(b), and 7.5(a) and (b). The sanction was consistent with discipline imposed in other cases involving misleading attorney communications.

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The Supreme Court found the attorneys' use of "Attorneys of Aboite, LLC" and "Attorneys of Aboite" to be improper because a lawyer in private practice shall not practice under a trade name. The use of "LLC" implied that the attorneys were practicing law together as a LLC and not as individuals just sharing office facilities. Using an LLC in a name implies the LLC maintains adequate professional liability insurance or other forms of adequate financial responsibility for the protections of clients and that the State Board of Law Examiners investigated the LLC and certified it, according to the order.

What is a Litigation Attorney?

I suspect I will get comments from other lawyers about the difference between a a litigation attorney and a trial lawyer. Relax. I did not write this post for us lawyers but for the non-lawyers. (For the record, I do think of myself as a trial lawyer and not a litigation attorney). And, Attorney at large, has written a good article for laypeople about what litigation attorney or a trial lawyer does:

What Does A Litigation Attorney Do, Anyway

Litigation Takes A Long Period Of Time.


Very rarely does the litigation process go quickly. It’s not that litigation attorneys don’t want to expedite the process as much as possible – it’s just that there are an unbelievable number of details and legal procedures that have to be followed in any type of litigation. Court systems and their rules also introduce their own level of bureaucracy that only extends the amount of time needed for litigation attorneys to cover all the bases necessary.


Again, litigation is a very complicated process. While it might sound simple to simply carry a lawsuit through the court process, every experienced litigation attorney knows that this is just not the case at all!

Worried About Financing a Case Needing Experts?

Small Firm Business's Litigants Lacking Big Tech Bucks Can Still Play Ball has some interesting points that I have yet to really work out - at this point, I do not have this issue in any of my pending cases.

"In a survey, several federal district court judges also opined that Rule 403 permits the trial judge to bar the proponent's expert testimony when the opponent lacks the wherewithal to afford a rebuttal expert. Savikas & Silverman, 'Making the Poverty Objection: Parties Without Fancy Exhibits Could Claim Unfair Prejudice, But Not All Judges Would Agree,' NLJ, July 26, 1999, at C1.

Is it proper to invoke Rule 403 in that fashion? On the one hand, Rule 403 does not embody any egalitarian objective. Neither the text of the statute, the accompanying advisory committee note, nor any passages in the congressional deliberations over Rule 403 indicate that the drafters intended judges to resort to Rule 403 to compensate for an imbalance of financial resources between the litigants.

As quoted above, Rule 403 lists a number of probative dangers. Several other federal rules provisions contain lists. For example, Rule 404(b) lists some of the recognized noncharacter theories of logical relevance of uncharged misconduct. Likewise, Rule 407 enumerates several permissible purposes for introducing evidence of subsequent remedial measures."

Oops, seems someone else had a less than stellar week.

From The Indiana Lawyer comes Judge criticizes counsel seeking class certification

Don't expect one federal judge to re-examine a ruling by another jurist on the same court if you don't present any new facts or arguments on a similar case and issue.

That's the message to federal attorneys practicing in the Southern District of Indiana, as detailed in a decision Thursday from U.S. District Judge David F. Hamilton in Blanca Gomez and Joan Wagner-Barnett v. St. Vincent Health, No. 1:08-CV-0153. The judge denied a class-action certification motion involving two ex-hospital workers who allege their former employer didn't provide adequate notice of COBRA rights to more than 250 people qualified for that extended health insurance between May 2004 and January 2006.

How Do Lawyers Set Fees?

That Unsettling Feeling from IP Litigation Lawyer & Attorney may not answer that question but it hits some important points:

"There are a lot of questions we consider before taking a case and certainly before filing a complaint. Most important is, does the case have merit? Second, are potential damages sufficient to make it worthwhile? Very important is whether the defendant can actually pay if judgment is obtained? However, one question that NEVER gives us any pause whatsoever is, 'will the defendants put up a fight?' Of course they will. That is ALWAYS a possibility, and a company's reputation for defending cases vigorously simply does not enter into the calculation. Facing defense counsel and their defenses is just part of the game.

Having now been on the plaintiff's side for quite some time, I feel somewhat foolish recalling the principled speeches I once gave corporate clients regarding the need to stand up and send a strong message to the plaintiff's bar. In reality, my opponents did not care about reputations, 'messages' or the perceived nastiness of defense counsel."

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I understand a big firm lawyer's need to hit his numbers and bring in the cash. And fighting cases is what we lawyers do, on both sides. But rational business decisions by clients should be based on more than silly claims about "messages" and "principle" and so forth. You'd think that people smart enough to get rich in the first place would know when their lawyers are blowing smoke.

Again, the overwhelming majority of cases settle, and they usually do so when when clients wake up to where their true interests actually lie.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Read if you are not impressed with PACER

The case against PACER: tearing down the courts' paywall - Ars Technica

In this feature, Ars takes stock of online access to federal court records in the United States. We'll discuss how the system got where it is today, look at where there's room for improvement, and talk to two experts on open government about the prospects for reform. The bottom line is that the courts deserve credit for the progress they made in the 1990s, but a lot more work is needed to bring PACER into the 21st century

Indiana Court Forms and Rules

LLRX. com has a page devoted to Indiana courts - their dockets, rules and forms - here. This includes both federal and state courts.

Protecting Your Business and Going to Court

I wish I could get every client to memorize this paragraph from Striking Up's Protect Your Intellectual Property:

I don’t condone suing others consistently. Sue to win. If you don’t think you’ll win, better hold off that thought and put your effort and energy on other things instead of thinking about war in the courtroom with others. Stay smart and use the knowledge of Intellectual Property laws."

Unless the destruction of the business looms without litigation, litigation distracts from running the business. I have long advocated everyone who can read to read Sun Tzu's Art of War. The following comes from Mark McNeilly’s The Sun Tzu Strategy Site (having just found this site, I suggest anyone reading this to go there and read it.):

5) Use alliances and strategic control points in the industry to “shape” your opponents and make them conform to your will.

“Therefore, those skilled in war bring the enemy to the field of battle and are not brought there by him.”
--Sun Tzu

“Shaping you competition” means changing the rules of contest and making the competition conform to your desires and your actions. It means taking control of the situation away from your competitor and putting it in your own hands. One way of doing so is through the skillful use of alliances. By building a strong web of alliances, the moves of your competitors can be limited. Also, by controlling key strategic points in your industry, you will be able to call the tune to which your competitors dance.

I put my belief that preventive law down to having read Sun Tzu. Deal the problems ahead of litigation for litigation is a blunt instrument with risky outcomes. The Art of War considers the best general as the one who ends the war without a fight. Think about that. Then apply it to your business' legal needs.

I will soon be taking on new business clients. If you want to protect your business, give me a call.

Book Notice- ‘Appetite for Self-Destruction,’ by Steve Knopper - The Modern Music Bus

I think this is the first time I note a book review on this blog, but this caught my eye. Having posted a few times on the RIAA's lawsuits, I took When Labels Fought the Digital, and the Digital Won from the New York Times reviews ‘Appetite for Self-Destruction,’ by Steve Knopper as about those lawsuits. It is much more. It reminded me about the controversy over CD pricing (which was over two decades ago). It sounds a worthwhile red for anyone interested in how to create a poor business model.

Court: Lawyer necessary in federal litigation

From The Indiana Lawyer comes another reminder that you really do need a lawyer in federal court - Court: Lawyer necessary in federal litigation:

"Although the 7th Circuit Court of Appeals affirmed the convictions of a defendant and his company for violations of the Clean Water Act in an unpublished opinion today, the appellate court wrote a separate opinion to discuss the issue of whether a limited liability corporation can proceed pro se in federal litigation if an attorney had already worked on the case."

The 7th Circuit Court of Appeals addressed this issue in a September 2008 opinion ruling owners of an LLC must be represented by an attorney to appeal a decision in federal court. In today's opinion, United States of America v. Derrik Hagerman and Wabash Environmental Technologies, LLC, Nos. 07-3874, 07-3875, the judges had to consider whether Hagerman could continue pro se because an attorney representing Derrik Hagerman and his company had filed an opening brief and reply brief on behalf of the company. Hagerman then fired his attorney, hasn't replaced him, and now wants to represent the company pro se.

About the earlier, LLC case, see my post here.

Jureeka for Using Foxfire While Doing Legal Research

Ok, this is more a heads up than a review. I use Foxfire as my browser. I do almost all of legal research online now. So when I read of Jureeka, I thought I need to check this out. Well, it is on the desktop that sits now on the secretary's desk. Which means I have not had quite the time I to use the extension as I thought I would. Which also seems to epitomize my life and practice of late.

Still, I think more lawyers need to know about Jureeka, so here is a link to the extension: Jureeka! 1.2

I also learned the developers have a blog. Give it a look. I feel that this could be a very big thing for us lawyers.

Tools for Creating Legal Documents

This post collects a few odds and ends about either online or computerized programs for creating legal documents. I use HotDocs to run my practice - perhaps too much - but I have no personal experience of the programs discussed below. I have two points to make with this post - one for lawyers and one for non-lawyers.

For the lawyers: here is our future. I do not think this can be denied any longer.

For the non-lawyers: do not stake the outcome of whatever legal proceeding you are undertaking solely to any computer program. They are a start of a conversation with a lawyer and that is all.

Let us start with AdamsDrafting 's review of BaselineNDA—A Tool for Reviewing NDAs

BaselineNDA will knock provisions out of, or drop provisions into, a given draft, but it isn’t able to critique those provisions in the original that are retained. But BaselineNDA doesn’t intend to remove the reviewer from the process. Instead, the goal is to bring a document to an acceptable starting point by deleting objectionable standard provisions and adding those standard provisions that had been omitted but that the user wants in the document.

All told, what interests me most about BaselineNDA is the snapshot summary it produces and its ability to process an NDA using a customizable Playbook. I’m less interested in the built-in knowledge in the form of standard provisions and the Knowledgebase, as I have my own views on such matters.

Would I use BaselineNDA? That’s too theoretical a question. For one thing, I’m not a practicing lawyer. Even if I were, an answer would depend on my NDA workload and my willingness to either rely on the built-in knowledge or construct my own. I’d also want to know the price, which hasn’t yet been determined.

In any event, I think that BaselineNDA is certainly a worthy addition to the information-technology tools available to those who toil in the contract process; I encourage you to check it out. It’s a tough field, and a number of seemingly plausible entrants are fighting what appears to be a losing battle against inertia. I’ll be checking on the fortunes of BaselineNDA and the Baseline concept generally.

Mr. Adams makes this point: "but it isn’t able to critique those provisions." Therein lies the reason I say for non-lawyers that computer programs are a place to start a conversation with a lawyer.

I was asked this question a while ago: Is it safe to use ''Quicken's Will Creator'' to create a generic will to cover guardianship of my two children? My answer lead me to this article, Law and the Internet, Part 1: A Little Self-Help which makes the following points:

The benefits of these different document services lie in the eyes of the beholders. The major benefit is that consumers cut their legal bills -- usually by a significant margin. Also, they can complete the process more quickly than trying to find time on a busy lawyer's calendar.

There are some shortcomings. Many documents they offer address laws that are set at the state level, which can vary widely. As a result, there may be instances where the wording in a document does not mesh with local regulations. Also, the law constantly evolves, and there may be cases where documents become outdated.

Some legal professionals think online documents shortchange consumers. "At some point in the legal process, a consumer should consult with a lawyer," said Ryan Sabia, president of Interactive Technologies, which operates OnlineConsultant.com. "If you needed an operation, you would see a doctor, not perform it yourself," he told the E-Commerce Times.

More for any lawyers reading this post is RealDealDocs. The site has this to say about itself:

Over the past eight years, we built a proprietary, patented categorization engine which efficiently organizes huge libraries of professional documents, including deal agreements and litigation work product. We combined it with a blazing fast full text search engine and refined it by reviewing the results over millions of professional documents. Importantly, we have also presented this application in an easy to learn search interface so that users can figure out how to get to the information the first time they use it. So whether you’re trying to find an example of an employment agreement for a financial executive at a bank in North Carolina or an obscure pricing clause for a supply agreement out of Asia, you’re going to quickly be able to figure out how to find it.

Yes, a bit top end for those of us who are solo attorneys but ask yourslef what do you do to preserve and reuse your work product? Also think aobut how this levels the field for small firms.

Court amends public accessibility, other rules

The Indiana Supreme Court has revised its administrative and appellate rules governing how trial courts make records publicly accessible and how appeals are handled in certain cases requiring confidentiality.

An order dated Oct. 6 dictates access to court records and says trial courts may manage access to audio and video recordings of its proceedings to the extent that may be deemed appropriate and not interfering with court operations. Justices reached a decision on the issue late last week during a weekly conference.

***

"This doesn't
attempt to create a formula," Justice Dickson said. "It's basically an
operational call by the clerk, and the clerk is to come up with what
they find appropriate for designations to meet the rule and comply with
statutory obligations."

In the order, the court also amended its
rule regarding court record security and added commentary that includes
examples of what judges can do to ensure recordings aren't altered.

"The
court is required to preserve the integrity of audio and video
recordings of court proceedings," the rule states, adding that options
include supervised playback for listening or copying, creating a copy
of the record for use during playback, and notifying the involved
parties about the accessed record.

Rule revisions take effect Jan. 1, 2009.

The new rules are here (in PDF format).

New Federal Rules

Which can be found here. No, not had time to even look at them.

Upcoming Elections: Appellate Court Retention

Along with everything else, Hoosiers get to decide whether the appellate court judges should be kept or sent back to civilian life. Three Supreme Court Justices, one Court of Appeals judge, and the Tax Court judge are up for retention.

This year we have a web page Judicial Retention in Indiana on the subject. You get a thumbnail biography and links to their cases.

All I am going to say here is that no appellate court judge has lost their job on a retention vote.

FTC Looking to Change Its Practice Rules

This came in today from the GPO:

AGENCY: Federal Trade Commission (``Commission'' or ``FTC'').

ACTION: Proposed rule amendments; request for public comment.

-----------------------------------------------------------------------

SUMMARY: The FTC is proposing to amend Parts 3 and 4 of its Rules of
Practice, in order to further expedite its adjudicative proceedings,
improve the quality of adjudicative decision making, and clarify the
respective roles of the Administrative Law Judge (``ALJ'') and the
Commission in Part 3 proceedings.

DATES: Written comments must be received on or before November 6, 2008.

ADDRESSES: Interested parties are invited to submit written comments
electronically or in paper form. Comments should refer to ``Parts 3 and
4 Rules of Practice Rulemaking--P072104'' to facilitate the
organization of comments. Please note that comments will be placed on
the public record of this proceeding--including on the publicly
accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm)
-- and therefore should not include any sensitive or confidential
information. In particular, comments should not include any sensitive
personal information, such as an individual's Social Security number;
date of birth; driver's license number or other state identification
number, or foreign country equivalent; passport number; financial
account number; or credit or debit card number. Comments also should
not include any sensitive health information, such as medical records
and other individually identifiable health information. In addition,
comments should not include any ``[t]rade secret or any commercial or
financial information which is obtained from any person and which is
privileged or confidential. . . . ,'' as provided in Section 6(f) of
the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which confidential  treatment is requested must be filed in paper form, must be clearly  labeled ``Confidential,'' and must comply with Commission Rule  4.9(c).\1\ (f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which confidential  treatment is requested must be filed in paper form, must be clearly  labeled ``Confidential,'' and must comply with Commission Rule  4.9(c).\1\ 

E-Discovery Seminars from FIOS

Tom Mighell mentioned these in the latest e-mail alert from Inter Alia. The Legal Hold Process – A Crucial Component to Effective Discovery Response is for October 7.

No Paralegal REgistration This Year

So reported The Indiana Lawyer on Monday:

The Indiana Supreme Court has declined to create a rule on paralegal registration for the state, putting a kink in an effort that's been under way for years.

This news is according to a Sept. 4 letter by Mishawaka attorney E. Spencer Walton Jr., chair of the Indiana State Bar Association's paralegal committee that has been studying the issue for years and drafted a Proposed Rule 2.2. In October 2006, the bar association tabled the measure for a year and in October 2007 sent a report to the court for consideration.

As it currently stands, Indiana does not have official qualifications in place for its estimated 4,000 paralegals - anyone who wishes to call himself or herself a paralegal can do so. Although the Indiana Rules of Professional Conduct govern an attorney's supervision of paralegals, there's nothing currently in place for governing these individuals directly.

For more read Court not ready to create paralegal rule.

Those red-light cameras going away?

The Indiana Lawyer reports they might be. From State puts brakes on red-light cameras:

"Green means go, red means stop. Motorists know that well, and in a 21st century society embracing technology on every front, it might not seem out of the ordinary to wonder if someone’s watching to make sure motorists are stopping when they should.

Not in Indiana, at least not at the moment.

The Indiana Attorney General’s Office has put the brakes on municipalities passing ordinances for the use of traffic light cameras in catching red-light runners. The state agency issued an official legal opinion Aug. 8, saying that any local ordinances or rules allowing the traffic control measures are illegal until state lawmakers first pass a statute allowing locals to move forward with those plans."

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>Most recently, the attorney general’s opinion put the burden on legislators to decide how to proceed on red-light cameras. Sen. Earline Rogers, D-Gary, asked about the power of a municipality to implement those programs using stationary cameras to digitally photograph license plates of any vehicles entering an intersection on a red light. Hammond launched a pilot program in June for that, but at the time it was unclear whether state legislation was first needed before the ordinance could be adopted. Once the photos were taken, a private company operating the system would mail the tickets after a police review. Fines of $100 would be assessed and the tickets would be considered non-moving violations, similar to parking tickets.

Other communities including Gary, Hobart, Lafayette, and West Lafayette have expressed interest in the idea, which has grown more popular and controversial nationally. But the AG’s Office says no.

“A red-light camera ordinance would be an invalid attempt to locally regulate conduct that is already regulated by a state agency,” Attorney General Steve Carter wrote, noting that the General Assembly must first pass legislation. “Unless expressly granted authority by statute, a local governmental entity’s passage of such an ordinance would be in contravention of the state’s home rule law at Indiana Code Section 36-1-3-8(a)(7).”

Workers Swear Off 401(k) Loans!

I call this good news: Workers Swear Off 401(k) Loans.

"Credit-crunched consumers aren’t raiding their employer-sponsored nest eggs any more than usual, with the percentage of workers with outstanding 401(k) loans increasing by less than 1 percent so far this year, according to data provided by Hewitt Associates to Financial Week, a sister publication of Workforce Management. Specifically, the benefits consulting firm estimates that about 22 percent of workers are now borrowing from their 401(k) plans.

“It could be that some of the early attention given to the downsides of borrowing from your 401(k) has scared workers from actually doing it,” said Alison Borland, head of the defined-contribution practice at Hewitt.

Borland said that many employers have focused on educating their workers about how 401(k) loans could potentially erode a considerable part of their savings.

Such education initiatives appear to be working, as other studies have also found that 401(k) loans are barely on the rise—if they’re even increasing at all. Fidelity, for example, found that 19.2 percent of workers had outstanding 401(k) loans at the end of June, down from 19.4 percent in June 2007 and 19.9 percent in 2006."

Thanks to workforce.com for publishing.