Indiana Continuing Legal Education Forum (ICLEF)

Probable Cause?
Welcome back to our Law Tips on DWI. This week we get into the nitty gritty of the officer’s reliability and recollection as presented by faculty member Conor O’Daniel. Mr. O’Daniel, of Foster, O’Daniel & Hambidge, Evansville, recently participated in ICLEF’s seminar “DWI @ Trial” by covering “Cross Examination of Police, Datamaster Expert and State’s Witness.” Our focus specifically for this week’s Law Tips is Conor’s advice on critical issues involving the basis for the stop, such as:

When an attorney is armed with the proper materials and has a full understanding of the case (including the strengths and weaknesses), effective cross examination will naturally follow. In preparing for the cross-examination of an officer, I typically break down the case to separately evaluate the basis for the stop, observations by the officer, field sobriety tests, and the chemical test.

The Reason For The Stop:
Some law enforcement agencies have cameras in the vehicles; and when available, attorneys should always request that information, as it is proof positive of the events of the day. We know pretext stops are valid in Indiana. Often times, officers will claim the reason for the stop is anything from weaving within the lane; improper turn signal; no license plate illumination light, etc. In the absence of any video tape, the Courts will accept the officer’s observations as true.

What happens, though, when the officer’s truthful observations do not establish a valid basis for a stop? For instance, does an individual have to have two working brake lights on their vehicle? If the license plate illumination light is burned out, but an officer can observe the license from more than 50 feet, is that a violation? These are questions that may very well come up in motion to suppress process, but it can also be revisited during cross examination in the case in chief.

It is always important to point out what officers do not remember. Officers make hundreds of arrests per year and rarely can recall the specifics of any one particular case some six or eight months down the road. If an officer indicates he has some special ability to recall, you should take this opportunity to question him hard on what the individual was wearing, what were the weather conditions, how many other people were around, what the license plate number was, etc. There are any number of questions you can ask an officer to show or demonstrate how imperfect his or her memory may be. Has the officer indicated he/she wrote down all of the material facts of the case so he/she does not forget them? Did he/she subsequently add something to the facts that was not otherwise disclosed, suggesting this was simply made up recently?

In one particular case, an officer conceded on the stand that he saw a license plate light from 50 feet away, which was within the bounds of law, and would have led to a suppression had that been the only basis for the stop. Later in the hearing, the officer added that he first noticed the light out in his rear-view mirror, which was the basis for the stop. Of course, he was questioned as to whether or not any tickets were written, whether it was written in an Affidavit of Probable Cause, whether he noted it anywhere or told the attorney in the deposition about it. In fact, he admitted this was the first time he ever said anything about this — that he just remembered it — at which point he was questioned about his ability to recollect much of anything, such as clothing worn, who else was around, etc.

Mr. O’Daniel’s lecture for the DWI @ Trial seminar continues by intricately examining issues in observations of the officer, field sobriety and chemical tests, all areas that can provide key defense mechanisms. We’ll continue with our Law Tips series on DWI next week as we share Conor’s candid and expert opinions on preparing for trial. To read last weeks Law Tips, Click Here.

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We appreciate you reading Law Tips.  Your comments are always welcome:  nancy@iclef.org or www.facebook.com/ICLEF.  Look for updates on Facebook or sign up for the RSS feed here on ICLEF’s website for the  “Law Tips Blog” as we continue to sift through the treasure trove of knowledge of our legal experts.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Case Law Update
Preparing a DWI defense? Law Tips is here to help.  Our blog this week provides case law reviews by Mark A. Foster, Foster O’Daniel & Hambidge, LLP, Evansville.  Mark is a frequent lecturer for ICLEF on the topics of DWI and Criminal Defense. While chairing ICLEF’s seminar entitled “DWI @ Trial,” he provides a thorough update on case law.  Here are a few selected cases from his presentation  that I hope will assist in your defense preparations:

•  OPERATION
Willis vs. State of lndiana, Ind. App. 2011 Unpub.
Willis was observed driving his vehicle left of center on several occasions and was stopped by the arresting officer. The officer noticed a strong odor of alcoholic beverage coming from inside the car and the defendant was extremely agitated. Further, the defendant had to pull himself from the vehicle and leaned against the vehicle as he talked with the officers at the scene. The defendant refused to submit to any field sobriety testing and additionally refused the breath test. The court found that there was sufficient evidence for the finding that the defendant operated a motor vehicle while intoxicated. At trial the defendant pled guilty to the enhancement, however, challenged the validity of the prior conviction on appeal. The Court of Appeals noted that since he had pled guilty he could not challenge the propriety of the conviction on direct appeal.

•  REASONABLE SUSPICION TO STOP
Collier vs. State of lndiana, Ind. App. February 24, 2011, Unpub.
In Collier a Marion County Sheriff’s Deputy saw two (2) individuals and when they noticed him they turned around and walked the other direction. The deputy then ordered them to stop and he approached and asked for identification. The defendant argued that the stop was based upon reasonable suspicion and the State responded that if it was not based upon reasonable suspicion it was a consensual encounter. The court held that there was no reasonable suspicion and further stated that if an individual would not feel free to leave or disregard the police and go on about his business the encounter is not consensual.

•  SUFFICIENCY OF THE EVIDENCE
Terry vs. State of lndiana, (1) Ind. App May 19, 2010, Unpub. And (2) Ind. App. August 4, 2010, Unpub.

In Terry (1) the court considered evidence for finding that Terry operated a vehicle while intoxicated. The facts are that a witness had heard a crash behind his house and upon investigation saw a vehicle owned by Terry driving away. The witness talked to Terry and testified he was slurring, swaying back and forth and stated he had hit the garage and that he had had a couple beers. The arresting officer responded and Terry had refused the breath test. The court find that the evidence was sufficient to determine Terry operated a vehicle while intoxicated, rejecting Terry’s claim that there was no evidence he was intoxicated at the time he operated the vehicle. The court in sentencing Terry suspended his license for two (2) years and ninety (90) days. The court on rehearing correctly stated that the court could not suspend four two (2) years and ninety (90) days and instead interpreted the original suspension of a ninety (90) day suspension which was consecutive to the two (2) year administrative suspension for refusal of the breath test.

•  ENDANGERMENT
Dorsett vs. State of lndiana, Court of Appeals, 921 N .E.2d 529, 2010
On review, the court held that, while the State presented sufficient evidence to show that defendant operated his vehicle while intoxicated, it failed to show that defendant’s operation of his vehicle endangered a person, as was required under Ind. Code §9-30-5-2(b) to convict defendant of the charged offense as a Class A misdemeanor. To prove endangerment, the State relied on its evidence that defendant was intoxicated. However, the State was not permitted to claim that the same evidence proved the additional element of endangerment but was required to submit proof of endangerment that went beyond mere intoxication. While the evidence was insufficient to support defendant’s conviction under Ind. Code §9-30-5-2(b ), the evidence was sufficient to convict defendant of driving while intoxicated as a Class C misdemeanor under Ind. Code §9-30-5-l(a).

Next week’s Law Tips will present more DWI defense insights, narrowing in on techniques for challenging the police officer’s observations and basis for the stop.   If you would like to subscribe to the RSS feed for Law Tips, click on our link at the top of this page.

Your comments are always welcome.  Email me at nancy@iclef.org.  Thanks for reading Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Ethics: What Lawyers Need To Know About Financial Statements – Part II

Have you had an inaccurate financial statement presented to you by a client? What did you do to solve the ethical issues? We began a discussion last week of such a scenario posed by Jeff Nickloy, Campbell, Kyle & Proffitt, Noblesville, in his recent ICLEF seminar presentation.

Remember this situation?

Your client is being sued in federal court based on an alleged breach of contract for the sale of your client’s South Carolina factory. You need to draft responses to discovery requests seeking information about the pre-sale performance of the factory. You have a copy of your client’s financial statement, which includes the factory’s performance. The CFO, who is a personal friend, was responsible for preparation of the statement. You think the financial statement is inaccurate.  What are your responsibilities?

To begin the analysis, Jeff presented a list of the Rules of Professional Conduct which apply to attorneys’ representation of clients in these situations.
Those rules are: 1.1, 1.6, 1.13, 4.1, 5.1, 5.3, 5.7 and 8.4.

After his review of these Rules of Professional Conduct, here is how Mr. Nickloy applies them to the client/personal friend scenario above:

A. Since the lawyer is acting as the client’s representative, the lawyer must be competent in dealing with the financial statement. If it is important to the case he must understand it. Rule 1.1 requires at least this much.

B. Since the lawyer will be making representations based on financial statements, Rule 4.1 requires that the lawyer’s statements be truthful. If the lawyer has reason to believe the financial statement is inaccurate he may not simply draft his discovery responses by referral to the document. Since a false financial statement, intentionally submitted to push a deal forward is probably fraud, the lawyer doing so would at least be violating Rule 4.1 (b) and Rule 8.4 (c) prohibiting behavior that assists a client in a fraudulent act and engaging in deceitful conduct.

C. If the lawyer confirms the inaccuracies he will face a dilemma caused by the interplay of Rule 1.6 (dealing with confidentiality) and Rule 4.1 (prohibiting untruthful statements).

D. If the lawyer is being assisted in the case by others in the firm, he must be sure that their work honors the rules too. It may not be easy for a supervising attorney to escape disciplinary action by claiming that he made reasonable efforts to be sure his associates complied with the rules if he lets them rely on a false financial statement in their dealings with opposing parties and counsel.

Jeff finalizes his analysis with the following comments:
Like nearly any other problem, the difficulties lawyers face that can arise out of erroneous financial statements are more easily corrected if recognized early, rather than after those financial statements have been produced, or relied on in the representation. So in order to help avoid or minimize ethical issues, if for no other reason, lawyers need to understand what financial statements mean and how to read them.

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We hope you found helpful advice in these ethical reminders.  Thank you to Jeff Nickloy for sharing his expertise once again here in Law Tips.

For an in-depth study of the legal issues involving financial statements, attend the Video Replay, view the Online / On Demand Seminar or purchase the e-Publication of  “How to Understand and Analyze Financial Statements“ - Click Here. This comprehensive National Speakers Series seminar features Douglas R. Smith, CPA, Myrtle Beach, South Carolina, teamed with Jeff Nickloy’s ethical review.

We appreciate you reading Law Tips. Come back next week for more tips sifted from the treasure trove of ICLEF faculty presentations.
Your comments and suggestions are welcome:  Send email to nancy@iclef.org or leave us a comment on www.facebook.com/ICLEF.
To read more of ICLEF’s Law Tips from Nancy Hurley – Click Here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Ethics: What Lawyers Need To Know About Financial Statements – Part I

“Financial statements are pervasive in legal matters outside of criminal law. And even in

that field, they can sometimes be material (e.g. certain fraud cases, or criminal tax matters).

Transaction lawyers, real estate attorneys, corporate counsel, bankruptcy law firms, securities

lawyers, and even family law attorneys regularly review, request, evaluate, consider and

comment on financial statements.”

The foregoing legal commentary sets the stage for valuable ethics advice from Jeff Nickloy, Campbell, Kyle Proffitt LLP, Noblesville.  In his recent CLE presentation for ICLEF’s National Speakers Series “How to Understand and Analyze Financial Statements: What Lawyers Need To Know” Jeff covered the key ethical issues involving financial statements. I’m pleased to share a portion of that information here:

We advise our clients based on what we see in financial statements. We offer them in court as documentary evidence. We sometimes base our arguments to judges or juries on their contents. Some of us also use them in connection with our roles as managers, leaders, directors, or members of organizations we serve other than as legal counsel, including our own firms.

Perhaps the importance of financial statements is obvious. But what is less obvious is that the Rules of Professional Conduct will often apply to our activities involving financial statements – often in ways and circumstances we do not expect. Because those rules are so important to our ability to practice law we need to understand how and when they might apply to our interaction with financial statements.

To put the matter in some perspective please consider one brief example:  Your client is being sued in federal court based on an alleged breach of contract for the sale of your client’s South Carolina factory. You need to draft responses to discovery requests seeking information about the pre-sale performance of the factory. You have a copy of your client’s financial statement, which includes the factory’s performance. The CFO, who is a personal friend, was responsible for preparation of the statement. You think the financial statement is inaccurate.  What are your responsibilities?

At this point, Jeff reminds attorneys of the advisability of reviewing the Indiana  Rules of  Professional Conduct that apply to these situations: 1.1, 1.6, 1.13, 4.1, 5.1, 5.3, 5.7 and 8.4.  The Preamble to these Rules [2] notes the lawyer’s responsibilities as an adviser, an advocate, a negotiator, an intermediary and an evaluator when acting as a representative of clients.

One  illustration of his reference is in the Comment for Rule 5.7, Responsibilities Regarding Law-Related Services:

“A broad range of economic and other interests of clients may be served by lawyers’ engaging in the delivery of law-related services. Examples of law-related services include providing title insurance, financial planning, accounting, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and medical or environmental consulting.”

Perhaps you want to review the Rules of Professional Conduct and develop your own conclusions about the scenario presented above.  If so, you will find them by Clicking Here.

What do you think?  Are there competency issues? What about other lawyers assisting?  One of the cautions that Jeff points out is:  “If the lawyer confirms the inaccuracies he will face a dilemma caused by the interplay of Rule 1.6 (dealing with confidentiality) and Rule 4.1 (prohibiting untruthful statements).”

How would you handle the personal friend’s situation?   This ethics discussion continues next week with several more of Mr. Nickloy’s points concerning the application of the Rules of Professional Conduct in the hypothetical scenario above.

For an in-depth study of the legal issues involving Financial Statements, Click Here to attend ICLEF’s Video Replay or view the Online / On Demand Seminar of the National Speakers Series seminar entitled “How to Understand and Analyze Financial Statements.”  This comprehensive CLE features Douglas R. Smith, CPA, Doug R. Smith Consulting, Myrtle Beach, South Carolina, teamed with Jeff Nickloy’s ethical review.

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Let us know what you are thinking about this blog or any ICLEF-related topic by emailing nancy@iclef.org or commenting on www.facebook.com/ICLEF.
Thank you for reading ICLEF’s Law Tips.  Click here to read  Part II of Ethics: Financial Statements.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN