Law Tips: Pro Bono in Indiana 2014 – A Snapshot From An Expert

Are you in the midst of re-examining your pro bono commitments? Or, should you be? Maybe you’ve been wondering about the status of pro bono in Indiana. Fortunately, we have Scott Wylie to provide information on where Indiana’s pro bono path has led and the current state of affairs. Mr. Wylie is presently a plan administrator with the Volunteer Lawyer Program of Southwestern Indiana. He has directly observed the country’s pro bono developments for more than two decades, having also held the position of Director of the Public Law Center in Orange County California for a number of years. Scott is a nationally recognized commentator on attorney pro bono efforts, nonprofit governance, and poverty law. I am pleased to share with Law Tips readers his overview of Pro Bono in Indiana 2014.

Indiana is a deliberative place. We aren’t known for being on the cutting edge and change is something that we look at with a skeptical eye. It is rare that we jump in the pool first, typically waiting until others have tested the waters. Indiana was the last state in the nation to adopt a system of using interest on lawyer trust accounts (commonly referred to as IOLTA) to help fund the provision of legal services to low income residents. Our system, which went into effect in 1998, primarily funds pro bono programs in the state.1 Similarly, we have been cautious in our development of self-help services and clinical programs to address the needs of those for whom the legal aid and pro bono system just can’t fully serve. That cautious beginning served the state very well for a number of years, creating a well-planned, albeit modestly-funded, pro bono delivery system in every jurisdiction of Indiana. Pro Bono Plan Administrators working with the state’s Pro Bono Commission, worked to implement locally-developed pro bono plans to serve low income Hoosiers. These programs in turn often worked closely with other agencies in the delivery system, such as Indiana Legal Services, to maximize representation of the poor. 2 That system, however, is now greatly stressed after years of low interest rates sapping it of resources and high demand created by the Great Recession.

Even with strong programs and partnerships, our legal services delivery system was not able to meet the legal needs of every low income litigant before the Great Recession- not to mention the needs of the near-poor who aren’t served through the pro bono or legal aid system under any circumstance.

Since 2008, the gap has increased rapidly as programs have had to restrict services. To deal with this reality, law school clinics, legal services programs, courts, and each of our pro bono programs have worked to create new delivery models that attempt to meet the needs of clients who can’t otherwise be served through direct representation from our remaining pro bono programs. These litigants often have to navigate the system alone without services, and, while not ideal, these self-help services do address part of the litigants’ needs. They also assist the courts by increasing judicial efficiency and by ensuring more accurate and better prepared pleadings and legal documents when dealing with unrepresented litigants. 3 Court based clinics, law school clinics, and the encouragement of discrete task or limited scope representation have complemented the efforts of courtroom attorneys in increasing access to justice.

Professional Conduct Rule 6.5

Indiana wasn’t the first to undertake such efforts, but the state did ensure that our Rules of Professional Conduct facilitated these new models. Specifically, the courts adopted Rule 6.5 to make it easier for attorneys to provide limited scope and brief advice services at both court-based and nonprofit clinics (often run by law schools or pro bono programs). Perhaps the best known is our annual Talk to a Lawyer program offered each Martin Luther King Day throughout the state. Dozens of other clinics occur each month, some assisting pro se litigants with court forms and others providing guidance on specific subject matters. In all environments, participating volunteer attorneys can provide the service without having to do full conflict of interest checks. Rule 6.5 allows a pro bono attorney in these controlled environments to provide legal information or services to unrepresented litigants unless she specifically recognizes that she or a member of her firm has a conflict. The commentary provided with the rules provide guidance to both attorneys and program developers to ensure these limited scope services are offered in an appropriate manner and that litigants understand the limited nature of the legal relationship.

Professional Conduct Rule 1.2

Further guidance on providing services in these new environments is contained in Rule 1.2, specifically in subsection c, which along with the rule’s commentary specifically allows limited scope services. This method of providing legal services, often times referred to as unbundling, has been a hot topic in legal services for years. Since the framework of the profession’s conduct rules has always been based upon a full representational model, carving out these specific exceptions to allow limited scope services has been instrumental in allowing clinics, hotlines, and other self-help services to join the other tools available to the poor in obtaining legal help. These have become increasingly important tools as pro bono programs have had to limit services due to funding cuts. Attorneys participating in such programs should familiarize themselves with these rules and their commentary and participate only with reputable programs which follow the prescribed procedures for offering such. 4

By adopting new delivery methods and opening new avenues of service, facilitated by the ethics rules discussed above, Indiana continues its efforts to increase access to justice for the most vulnerable residents of the state, even during a time of very limited resources. For information on volunteering in your home jurisdiction, and for what innovative programs are offered in your community, contact your local Pro Bono Plan Administrator. 5

Thank you to Scott Wylie for sharing this Indiana pro bono snapshot. His ICLEF faculty presentation also includes specific instruction on areas such as allocation of authority between client and lawyer, independence from clients’ views and criminal and prohibited transactions. This training session is a portion of the 2014 Indiana Law Update program available currently by Video Replay around the state or as an On Demand Seminars, Click Here to learn more.

Indiana’s pro bono program structure in its entirety is described throughout Rule 6 of the Indiana Rules of Professional Conduct.

1 Historical information on the development of IOLTA programs throughout the country and historical data on Indiana’s IOLTA program can be found at www.nlada.org.

2 Information on pro bono services in Indiana, including information on each of Indiana’s pro bono programs can be found at www.in.gov/judiciary/probono.

3 In 2008, Indiana undertook an extensive survey of the legal needs of low income Hoosiers. The executive summary of that report can be found at the Indiana Legal Services website.

4 Detailed information on pro se assistance programs and limited scope representation can be found at http://www.abanet.org/legalservices/delivery/delunbund.html.

5 Information on pro bono efforts in Indiana, including a list of local Plan Administrators, can be found at www.in.gov/judiciary/probono.

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About our Law Tips faculty participant:
Robert Scott Wylie: Before returning to the Evansville area in 2005, Mr. Wylie spent seventeen years practicing and teaching law in Southern California. He is a nationally recognized commentator on attorney pro bono efforts, nonprofit governance, and poverty law. From 1999 until 2005, Mr. Wylie served as the Associate Dean of Extemal Affairs and held the John Fitz Randolph Director of Clinical Education Chair at Whittier College School of Law. This work was preceded by a seven year stint as Executive Director of the Public Law Center in Orange County California. For over fifteen years, Mr. Wylie has been active with the American Bar Association Center for Pro Bono. Presently, he is the Director of the Vanderburgh Community Foundation and a Plan Administrator with the Volunteer Lawyer Program of Southwestern Indiana. Mr. Wylie serves on the Board of Directors of a variety of charities including the Legal Aid Society of Evansville.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Three Less-Recognized Reasons It’s Important to Plan for Digital Assets

A few weeks ago on Law Tips Professor Gerry Beyer shared his insights on the growing significance of digital assets in everyone’s estate planning. You can find that article at: Estate Planning Does Not Include Just Grandma’s Cameo Brooch Anymore. It’s my pleasure to provide a continuation of that discussion.

Do you and/or your clients dismiss the importance of a plan for online accounts, cloud and flash drive storage, blogs, etc? How might your client be effected if he/she does not make provisions for protecting these digital assets? Professor Beyer outlines the myriad of issues in his CLE training for ICLEF’s Midwest Estate,Tax & Business Planning Institute. Such as, he discusses how planning makes things easier on executors and family members. How it prevents identity theft. How it avoids financial losses to the estate. As well as other critical issues in the estate planning realm. Today we’re sharing three of perhaps the less-recognized reasons that Prof. Beyer points out to make an estate plan for digital assets:

To Avoid Losing the Deceased’s Personal Story

Many digital assets are not inherently valuable, but are valuable to family members who extract meaning from what the deceased leaves behind. Historically, people kept special pictures, letters, and journals in shoe boxes or albums for future heirs. Today, this material is stored on computers or online and is often never printed. Personal blogs and Twitter feeds have replaced physical diaries, and e-mails have replaced letters. Without alerting family members that these assets exist, and without telling them how to get access to them, the story of the life of the deceased may be lost forever. This is not only a tragedy for family members, but also possibly for future historians who are losing pieces of history in the digital abyss. Rob Walker, Cyberspace When You’re Dead, N.Y. TIMES, Jan. 5, 2011.

For more active online lives, this concern may also involve preventing spam from infiltrating a loved one’s website or blog site. Comments from friends and family are normally welcomed, but it is jarring to discover the comment thread gradually infiltrated with links for “cheap Ugg boots.” Id. “It’s like finding a flier for a dry cleaner stuck among flowers on a grave, except that it is much harder to remove.” Id. In the alternative, family members may decide to delete the deceased’s website against the deceased’s wishes simply because those wishes were not expressed to the family.

To Prevent Unwanted Secrets from Being Discovered

Sometimes people do not want their loved ones discovering private emails, documents, or other electronic material. They may contain hurtful secrets, non politically correct jokes and stories, or personal rantings. The decedent may have a collection of adult recreational material (porn) which he or she would not want others to know had been accumulated. A professional such as an attorney or physician may have files containing confidential client information.

Without designating appropriate people to take care of electronically stored materials, the wrong person may come across this type of information and use it in an inappropriate or embarrassing manner.

To Prepare for an Increasingly Information-Drenched Culture

Although the principal concern today appears to be the disposition of social media and e-mail contents, the importance of planning for digital assets will increase each day. Online information will continue to spread out across a growing array of flash drives, iPhones, and iPads, and it will be more difficult to locate and accumulate.

As people invest more information about their activities, health, and collective experiences into digital media, the legacies of digital lives grow increasingly important. If a foundation for planning for these assets isn’t set today, we may re-learn the lesson the Rosetta Stone once taught us: “there is no present tense that can long survive the fall and rise of languages and modes of record keeping.” Ken Strutin, What Happens to Your Digital Life When You Die?, N.Y. L.J., Jan. 27, 2011 (For fifteen centuries, the meaning of the hieroglyphs on the Rosetta Stone detailing the accomplishments of Ptolemy V were lost when society neglected to safeguard the path to deciphering the writings. A Napoleonic soldier eventually discovered the triptych, enabling society to recover its writings.)

Again, thank you to Professor Gerry Beyer for sharing his expertise on the ramifications of failing to include digital assets in estate planning.

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About our Law Tips faculty participant:
Prof. Gerry W. Beyer is the Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law, Lubbock, TX. He joined the faculty at Texas Tech in June 2005. Previously, Prof. Beyer taught at St. Mary’s University and has served as a visiting professor at several other law schools. He was also the recipient of the 2012-2013 Outstanding Researcher Award from the Texas Tech School of Law. As a state and nationally recognized expert in estate planning, Prof. Beyer is a highly sought after lecturer. He has authored and co-authored numerous books and articles focusing on various aspects of estate planning, including a two volume treatise on Texas wills law, an estate planning casebook, and the Wills, Trusts, and Estates volume of the Examples & Explanationsseries. Professor Beyer received his J.D. from the Ohio State University and his LL.M. and J.S.D. degrees from the University of Illinois.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: Eliciting Change Talk in Mediation

Doug Noll, a fulltime peacemaker, emphasizes the importance of “micro-moments of emotion” when mediators should respond appropriately in order to bring the parties to an amicable settlement. Mr. Noll specializes in difficult, complex, and intractable conflicts and he trains others in those conflict resolution skills. A segment of his mediation training focuses on eliciting change talk. Today, Doug is generously providing an outline of how change talk can assist in a positive outcome in your clients’ settlement. Let’s learn about DARN C:

Eliciting Change Talk

Eliciting change talk, or self motivational statements, is an important component in mediationsettlements. This strategy helps to establish and resolve ambivalence and move forward.

Change talk is the party making statements that are in favor of resolution, which suggests that the party is becoming more ready, willing, and able to settle. However, although a mediator may want to hear change talk, she avoids imposing it. The goal is to elicit it from the party in a collaborative fashion. Eliciting change talk has to come about through a consensual, negotiated process between the mediator, the party, and counsel. Change talk can occur in several forms that make up the acronym DARN C.

D =Desire statements. Statements indicating a desire to make a change.

  • “I’d like to get this over with if I could.”
  • “I wish I could make my life better.”
  • “I want to take better care of my kids.”
  • “Getting past this would make me feel so much better about myself.”

A= Ability statements. Statements that speak to the party’s self-efficacy or belief in the ability tomake changes.

  • “I think I could do that.”
  • “That might be possible.”
  • “I’m thinking I might be able to do that.”
  • “If I just had enough money to survive until I got back on my feet, I could probably be OK.”

R = Reasons statements. Statements that reflect the reasons the party gives for considering a change.

  • “I have to settle because the stress and cost is driving me to bankruptcy.”
  • “To keep my sanity, I should probably figure a way out of this mess.”
  • “My marriage is over and I might as well just accept it and move on.”
  • “I don’t like my kids to see me like this.”

N = Need statements. Statements that indicate a need for change. These can be similar to R statements, but the emphasis is more affective or emotional than a more cognitive R statement.

  • “It’s really important to get my life back.”
  • “Something has to change or my marriage will break.”
  • “I’ll die if I keep going like this.”

These DARN statements are important to recognize and then emphasize through reflecting or directing the party to further elaboration. These statements are avenues to the most important part of change talk, the “C” in the DARN C.

C = Commitment language. Commitment language is the strength of change talk.

For example, aperson could say, “I might settle”, or “I could consider settling”, or “I’m planning to settle” or “I will settle”. The last two examples represent authentic commitment. The strength of the verb in the sentence corresponds with the strength of the commitment language.

An important mediator skill is addressing party commitment to change over the course of the mediation by recognizing and responding to change talk. The goal is to strengthen the commitment level.

Amrhein and Miller (2003), a linguist and a psychologist respectively, have shown that while allelements of change talk can be important in building commitment language, it is the stronger commitment statements that predict positive behavior outcomes. In other words, the more a party is making strong commitment statements like “I will do this” and “I am going to do that,” the more likely the party’s behavior is going to change.

I appreciate the contributions of Douglas Noll, both for Law Tips and as a faculty member for ICLEF. His DARN C pointers surely can help to recognize and strengthen the commitments of parties in various situations. I hope you have enhanced your mediation skills through his advice.

For further information on Mr. Noll’s training you may want to visit his website: www.legalpronegotiator.com. There are two quality seminars available live from ICLEF in the coming months that offer you the opportunity to earn Civil Mediation Education hours. Click a title below for full details:

CME for Family Mediators - 6 CLE / 6 CME - November 13

Epic Change: The Evolution of the Legal Profession - 3 CLE / 3 CME / .5 E - December 3

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About our Law Tips faculty participant:
Douglas E. Noll, J.D., M. A. In addition to being a keynote speaker and negotiation trainer, Doug is a full time peacemaker and mediator. He is an adjunct professor of law and has a Masters Degree in Peacemaking and Conflict Studies. Mr. Noll was a business and commercial trial lawyer for 22 years before turning to peacemaking. He is a Fellow of the International Academy of Mediators, a Distinguished Fellow of the American College of Civil Trial Mediators and on the American Arbitration Association panel of mediators and arbitrators. With his colleague Laurel Kaufer, Mr. Noll, co-founded the award-winning pro bono project, Prison of Peace, training life inmates in maximum security prisons to live lives of service as peacemakers and mediators. He is the author of  Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts (Prometheus Books, April 2011).

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014

Indiana Law Update 2014: The Tradition of Excellence Continues

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014

Last week on September 23-24, a record attendence gathered in six locations around the state to experience this year’s Judge Robert H. Staton Indiana Law UpdateTM program. This was the 36th year for the program. It has become known for its scholarly and enjoyable review of the substantive trends, changes and developments in Indiana Law.

This year’s program presented comprehensive updates in 18 areas of practice. Led by the Hon. Melissa S. May from the Indiana Court of Appeals, the program featured 21 presenters, 8 of which were new to the program for 2014. The mix of personalities, presentation styles, topical variety and humor sprinkled in along the way help to make it one of the most popular CLE events each year.

One of the hallmarks of the Indiana Law UpdateTM program is the law student scholarship contribution. Each of the four accredited law schools in Indiana benefit from the program.

If you missed this year’s live program, there are still many opportunities to attend it through a multitude of video replays occurring around the state. Click Here for the site nearest you. The planning for next year’s program is already well underway. It will occur on September 9-10, 2015. The live in-person session will be in the Sagamore Ballroom of the Indiana Convention Center. As was the case the last two years, there will also be many live group webcast locations available around the state. Make plans now and mark your calendars for the Original Indiana Law UpdateTM program for 2015!

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014: An ICLEF 12 CLE Seminar

 

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