Law Tips: Do You Understand Conflicts of Interest?

What are the areas of ethics that are often misunderstood by practicing lawyers? According to our long-standing ethics experts, one of them involves the lawyer’s duty of loyalty to the client, or conflicts of interest. Chuck Kidd and Kevin McGoff, ICLEF ethics faculty, bring essential reminders to practitioners of the most common ways in which lawyers get themselves sanctioned. “Conflicts of Interest” is on the list of top ten grievance complaints they often discuss. Here’s their advice on the subject:

Conflicts of Interest

This is one of the areas of ethics that concerns practicing lawyers the most, but appears to be one of the least well understood by the bar. In essence, the conflict of interest rules govern different aspects of the lawyer’s duty of loyalty to the client. Some rules act to protect the client from conflicts with other clients, other rules act to protect the client from their own lawyer and still others act to protect former clients from some of the dangers of conflicting interests after the representation is over.

Cases are legion which explore all the contours of this area of ethics. Certainly any written work exploring this subject would be a respectable tome. In the final analysis, these cases revolve around the question: “to whom does the lawyer’s loyalty run?” If the answer isn’t unequivocally, “the client,” then a conflict of interest almost undoubtedly exists. One case illustrates the extent to which conflict questions can be simultaneously complex and very apparent.

In Matter of Watson, 733 N.E.2d 934 (Ind. 2000), Respondent wrote a will for an 85-year-old man who was the largest single shareholder in an Indiana telephone company. The Respondent’s mother was the second largest shareholder in the company. Subsequently, Respondent prepared for the testator a codicil which granted an option to the company, upon the testator’s death, to purchase these shares at a price reflecting the stated book value. After the testator died, the board of directors elected to exercise the option to purchase the estate’s shares at the listed book value.  About two years later, Respondent, his mother, and the company’s remaining shareholders sold all of the company’s stock, realizing an amount per share in excess of two times that paid to the testator’s estate for the shares.

The Supreme Court found that the Respondent knew or should have known that the option for the company to buy the shares at book value was setting a price which could be substantially less than fair market value. Respondent was found to have violated Prof. Cond. R. 1.8(c) because he drafted the codicils when it was reasonably foreseeable that the instruments had the potential for providing a substantial gift to him and his mother. As a result, Respondent was suspended from the practice of law for sixty days.

Following are additional cases Mr. Kidd and Mr. McGoff offer as examples of conflict of interest issues:

  • Matter of Godshalk, 987 N.E.2d 1095 (Ind. 2013)
  • Matter of Ross, 982 N.E.2d 295 (Ind. 2012)
  • Matter of McKinney, 948 N.E.2d 1154 (Ind. 2011)
  • Matter of Pugleise, 941 N.E.2d 1044 (Ind. 2011)

Knowing that keeping abreast of ethics issues is of paramount importance to all Indiana lawyers, we are grateful to Chuck Kidd and Kevin McGoff for their contributions. Their enjoyable mode of presentation adds that special element that isn’t included in all ethics programs. You have opportunities to experience their most current ethics updates as Kidd and McGoff appear again as the kickoff presentation for the 36th Annual Judge Robert H. Staton Indiana Law UpdateTM at the Indiana Convention Center in Indianapolis, September 23-24. Also, the popular Vignettes of Legal EthicsTM program is scheduled live in two locations around Indiana in October and November.

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About our Law Tips faculty participants:
Charles M. Kidd, Staff Attorney, Indiana Supreme Court Disciplinary Commission, is a former Indiana Deputy Attorney General (1988-1991). He is author of numerous continuing legal education works including the Survey of Recent Developments in Professional Responsibility in volumes 26 through 28 and 30 through 36 of the Indiana Law Review.

Kevin McGoff, Bingham Greenebaum Doll LLP, Indianapolis, is an experienced professional liability and litigation attorney. He represents attorneys and judges in professional licensure matters, assists lawyers and law firms on issues pertaining to firm management, law firm dissolution and organization, malpractice, legal ethics and related litigation. Kevin has more than 32 years of experience defending lawyers and other professionals in state and federal court at trials and on appeal.

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: An ICLEF 12 CLE Seminar

ICLEF Expands Reach of Scholarship with Indiana Law Update

35th Annual Judge Robert H. Staton Indiana Law Update 2013, Sept. 26 & 27, 2013

Record Setting Attendance at the 2013 Indiana Law UpdateTM Seminar

 

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

With only a few weeks left, if you haven’t already done so, it’s time to register for this year’s Indiana Law UpdateTM Seminar. This is the ORIGINAL program that you have been attending and is the Only one that has existed since 1979. It continues to offer exactly what you are looking for – the finest scholarly review of the latest trends, developments and changes in Indiana Law – and how those changes effect you and your practice. Do not be confused by another program. Indiana Law UpdateTM is the Original – the one you know and have placed your trust in for 35 years!

ICLEF is proud of our longstanding support of scholarship funding for law students. Since the inception of the Robert H. Staton Indiana Law UpdateTM program in 1979, ICLEF has provided significant financial support to the Robert H. McKinney Alumni Association as well as local bars and foundations.

ICLEF has recently extended the reach of this tradition by providing funds to each of the four accredited Indiana Law Schools. ICLEF is without equal in our financial support for the continuing legal education of future Indiana Lawyers. Your commitment to the Indiana Law UpdateTM program makes this possible.
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” Thank you for your support of the Notre Dame Law School and Thomas L. Shaffer Public Interest Fellowship Account.”
- Nell Jessup Newton, The Joseph A. Matson Dean & Professor of Law, University of Notre Dame

” Thank you for your gifts to the IU Robert H. McKinney School of Law and the IU Maurer School of Law Scholarship Fund on behalf of the Judge  Robert H. Staton Indiana Law UpdateTM Program. Through your generous support, deserving young men and women have access to a world-class education”
- Daniel C. Smith, President & CEO, Indiana University Foundation

“Thank you for your generous support of our Law Students. Your donations to the School of Law Annual Fund ensures that talented young scholars who wish to earn a Valpo degree will have the means to do so.”
- Mark A. Heckler, Ph. D., President, Valparaiso University

“Your generosity is greatly appreciated. Private philanthropic contributions from our friends is essential, and your gift helps to bridge the gap between the cost of tuition and the true cost of educating every McKinney Law Student.”
- Andrew R. Klein, Dean & Paul E. Beam Professor of Law, Robert H. McKinney School of Law, Indiana University, Indianapolis

“Thank you for the generous contribution that we recieved through the Judge Robert H. Staton Indiana Law UpdateTM program. Such support makes a real difference and is deeply appreciated. We are grateful for this contribution, and for the ongoing relationship with ICLEF.”
- Hannah L. Buxbaum, Interim Dean, IU Maurer School of Law, Bloomington
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36th Annual Judge Robert H. Staton Indiana Law UpdateTM
12 CLE / 1E
– Tuesday & Wednesday, September 23 & 24, 2014  •  8:50 A.M. – 4:45 P.M (Both Days)

For your convenience this years program will be available simultaneously in multiple locations across the state:

LIVE IN-PERSON SEMINAR
- Indiana Convention Center, 500 Ballroom
100 S. Capitol Ave., Indianapolis, IN 46225

LIVE GROUP WEBCASTS
- Grand Wayne Center, Fort Wayne
120 W. Jefferson Blvd., Fort Wayne, IN 46802

- Blue Chip Resort & Casino, Michigan City
   777 Blue Chip Drive, Michigan City, IN 46360
   Program begins at 7:55 A.M. Central Time

- DeFur Voran Law Office, Muncie
   400 S. Walnut St., Suite 200, Muncie, IN 47305

- Taft Stettinius & Hollister Law Office, Indianapolis
   130 E. Ohio St., Suite 3500, Indianpolis, IN 46204

LIVE INDIVIDUAL WEBCASTS OF DAY 1 & 2
- From your home or office computer or tablet

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Steven H. Ancel

ICLEF Mourns the Passing of a Great Friend – Steven H. Ancel

Steven H. AncelIt is with great sadness that we inform you of the passing of an ICLEF friend, mentor, faculty member and past ICLEF Board of Director member, Steven H. Ancel

Steve passed away early this morning, Thursday, August 14, 2014.  His leadership, counsel and friendship will be deeply missed by all that knew him.

Steve was a member and officer of the ICLEF Board of Directors for many years where he served as a member of the ICLEF Executive Board as Treasurer.  For over 30-years Steve served as seminar chair and faculty member on numerous ICLEF seminars including The Sigmund J Beck Advanced Bankruptcy Roundtable and the Annual Bankruptcy Institute, a program that Steve was instrumental in developing and had chaired for 25-years.

Steve will be greatly missed by all of us here at ICLEF.  We are honored that we had the privilege to know Steve these many years.

Funeral services will take place on Sunday, August 17, 11:00 A.M. at Beth-El Zedeck, 600 West 70th Street, Indianapolis, Indiana.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN
Photo courtesy of Taft Stettinius & Hollister and the Indiana Bar Foundation.

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Where’s Wilson: Hiking Throughout the U.S. & the World

Where's Wilson, The Newest ICLEF Blog

In the newest Where’s Wilson post, our ICLEF travel expert, John Wilson discusses hiking throughout the U.S. and the World. Sit back, enjoy and learn from the travel master.

Hiking Throughout the U.S. & the World
By John Wilson 

We were at the El Tovar hotel on the rim of the Grand Canyon when my favorite and only wife, (the former marathon runner) Margaret, said she wanted to hike the Grand Canyon for her fiftieth birthday. My last hike had been when I was a Boy Scout. I am several years older than Margaret, so you do the math. It didn’t help when Tad Sinnock, also a runner and fitness buff, told me that the Grand Canyon was the hardest thing he had ever done.

Being a dutiful husband, I made reservations to stay at the bottom of the Grand Canyon at the Phantom Range in June when Margaret had her summer off from her work as a high school counselor. That is also the time that the average daytime temperature at the bottom of the Canyon is 105-110 degrees. We planned on hiking from the south rim and back, going down the South Kaibab trail, staying at the bottom for two nights and coming up the Bright Angel Trail. The South Kaibab is seven miles, a little steeper but shorter than the Bright Angel Trail. It has no available water, so you bring your own. The Bright Angel is a little less steep, ten miles long and has some water available. Both have an elevation differential from top to bottom of about a mile. Think about walking up the stairs of a mile high building.

Being concerned, actually scared “you know what” less, I started training. It is not necessarily easy train for mountain hiking in Indy when you are looking for hills. We live close to Holliday Park, so we put on our day packs and started hiking up and down the trails there. We hiked some other places, but eventually found out that Holliday Park had the steepest grades. We even saw some guys in snow boots and full out packs hiking there who were preparing to climb Mount McKinley. (Not an everyday sight in the park.) Eventually, I worked up to walking the trails for five hours and hoped I was ready. Margaret, the former marathoner, usually quit hours before I did, saying marathons didn’t even take five hours.

The day of the hike, we took the park service bus for about ten minutes to the head of the South Kaibab Trail at about 6:00 a.m. I was pleased that about ten other hikers got on the bus with us. I didn’t even know how to find the trail head, so I thought we would follow them. When we got off the bus, our fellow hikers messed around for so long that we went off on our own. It was not too hard since there was a sign pointing to the trail. We went over the rim and onto the trail.

Awesome! It was and still is the best, and most beautiful hike I have ever done! Every turn provided a new vista. I am not the first person to say that despite any pictures, including the ones below, or movies you have seen of the canyon, they do not do it justice. For yourself, make sure you go below the rim even if you do not hike all the way down. Stay over night, at the historic El Tovar lodge if you can, so you can see the morning and evening colors of the canyon which are more spectacular than during the brighter light of midday.

The hike down took about four to five hours of steady, but not fast hiking and was no problem. The log cabins at Phantom Ranch are basic, historical and may be multi-shared with other hikers. You need to reserve them almost a year in advance. When we made our reservation for this hike staying two nights at the Phantom Ranch, the reservationist asked what we wanted to eat for dinner. A little surprised and not sure what I might want to eat of year or so in the future, I asked her what my choices were. “Steak or stew”. I said we would have stew one night and steak the next. Her response, “We are out of steak”. How to respond? Once we were at the Phantom Ranch, it was apparent that her response made sense as the first seating at dinner was all stew and the second was all steak. By the time I made my reservation, the second seating was booked.

As predicted, it was about 108 degrees midday. We spend a lot of time in Bright Angel Creek which had cold mountain water running.

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There are many signs posted advising of the danger of hiking in the Canyon without proper preparation. These signs are routinely ignored by twenty-somethings who try to do both the hike up and down in one day wearing flip-flops and taking no water. They die, usually figuratively. People up into their seventies and older prepare properly and enjoy the hike. On our hike, a guy who must have been in his seventies got a little too friendly with my wife (in my opinion, she seemed okay with it). I would have confronted him, but I couldn’t catch up to him as he hiked up the Bright Angel Trail.

If you go, attend the Ranger talks. They are fun and informative. On our last night, before the big hike out at dawn, the ranger said she would give some tips on hiking out after her official presentation. Facing a ten mile hike up a one mile grade in one hundred degree heat, no one left before her tips. The hike out was hard but not too hard. Preparation was the key. It was also beautiful and awe inspiring. I did it again a couple of years ago.

What about my friend, Tad Sinnock, the runner and fitness buff who said it was the most difficult thing he had ever done? I asked him. He said, “Did you run both trails in one day?”

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My second favorite hike is in New Zealand. A great country to visit whether hiking or not, New Zealand has delectable food including local fresh seafood and special white wines. The Kiwi’s pride themselves in their adventure sports; whitewater rafting, parasailing, bungee jumping and whatever else they can dream up that a high percentage of normal people would declare crazy.

Near Queenstown on the South Island, the Milford Sound area has several world renowned hikes. The best know in the Milford Trek. My favorite and only daughter, Maureen, and I decided to do the adjacent twenty mile Routeburn Trek which takes three days and two nights.

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Remember, this is Lord of the Rings country. When you are within the tree line everything is green. The area gets tremendous amounts of rain. The trees are moss covered. The rocks are moss covered. Everything is moss covered. The flora is unique and beautiful. Once above the tree line, which is about half the hike, there are Colorado type peaks, beautiful lakes, fjords and numerous waterfalls.

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We took a guided hike. We carried day packs, slept in indoors in buildings that had been flown in by helicopter. Once on the trail, you do not come across roads or other signs of civilization. Our guides were well trained and fun young adults from New Zealand. We thought we might have some more Kiwi’s in our group, but realized later that they didn’t use guides and either camped or stayed in unmanned cabins that were also on the trek. On our guided hike, meals, beds and, because of the high amount of rain and waterfalls along the trek, unlimited hot water for showers after hikes which were at times cool and rainy.

Happy day for Dad when the daughter broke out singing, “The hills are alive with the sound of music” during the hike

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Leave a couple of days just to hang out in Queenstown. It is on a beautiful lake, the food and wine are great, the vibe is fun and after your hike you may be ready for some other New Zealand adventure including going of the original bungee jump at Kawarau Bridge.

Next is Torres del Paine National Park in the Chilean part of Patagonia. Torres del Paine starts at a low altitude (as do the New Zealand hikes), but has numerous dramatic peaks rising to over 3000 meters, lakes and glaciers. Being as far south as the Hudson Bay is north, the area is noted for its bad weather and strong winds even during their summer. Mike Fruehwald was my travel companion for this adventure. National Geographic has rated Torres as the fifth most beautiful location in the world. (They rated the Grand Canyon as number eighty-eight, but then, they didn’t consult with me.)

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You can see Torres from inside luxury accommodations, take the loop which is a eight to nine day circle around the mountains where you must camp and cook for yourself, or the five day “W” which allows you to stay indoors in basic refugios with multi-share sleeping and prepared meals (and wine). We chose the W and were glad of it. We saw local wild life, snow storms, ate lunch watching avalanche after avalanche on a distant peak, met hikers from around the world, and saw water blowing upstream under the force of the wind on a “good” day.

We were only knocked down by the wind once. It was a great hike. At the end of the hike to get back to our transportation out, we took a ferry which took us to some unreal blue icebergs that had calved off the Grey Glacier, and turned upside down to expose their smooth deep blue bottoms.

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WW-Hike-Ice1Machu Picchu. I have a friend who traveled to Machu Picchu. He stayed in an oxygenated hotel room in Cusco (the gateway city to Machu Picchu), he rode there in an oxygenated train and then stayed in an oxygenated hotel room before he toured the ancient city. He said on the train ride to Machu Picchu he saw folks hiking the Inca Trail. He said he felt sorry for them. That is the same thing those of us who were hiking the Inca Trail said about the people going to Machu Picchu in the train.

There are many ways to hike in the Machu Picchu area, some very upscale with indoor accomodations and great dining, but only the Inca Trail takes you directly to Machu Picchu and through the Sun Gate. The Inca Trail is not for everyone. At age sixty-two, I was the oldest person in my group by thirty years (but not the oldest person hiking the trail). While the entire Inca Trail is longer, most people do a three night, four day hike. It requires staying in tents and using “basic” facilities. Thankfully, guides and porters are required, so hikers only need to carry a day pack. The guides and porters also cook, with some of the local citizens providing beer for sale, if you have the energy. The weather is not too bad, but we did walk two hours one day in pouring rain.

Altitude was an issue for me. Although Machu Picchu itself is only about eight thousand feet, to get there you have a second day hike from about eight thousand feet to the top of Dead Woman’s Pass at thirteen thousand eight hundred feet. Then you camp at about eleven thousand feet in a cold weather camp that night. The only redeeming factor on that day was that one of our fellow hikers was a young woman from Norway who happened to be a masseuse. She gave all the hikers, porters and guides a calf massage that evening.

Not being very spiritual, I enjoyed the beauty of the mountains along the hike as much as Machu Picchu. However, my favorite guide, Luis, was telling me on the cold, rainy night before we made the last hike to Machu Picchu that he really didn’t want to take a cold shower and clean up for the entrance to Machu Picchu. I said not to worry about it, because we didn’t care. He said, “John, I must. It is the center of my religion.”

If you go, give yourself some extra days to visit other areas like the Sacred Valley, Lake Titicaca or the Amazon. Who wouldn’t want to go Ollantaytambo. Most people do not spend much time in Lima. I agree. Rather than stay in Lima downtown, many people stay in the suburb of Miraflores, I like Barranco better. It has a Broad Ripple on the Pacific feel.

Obviously, the list of hikes are endless. We also enjoyed hiking in the Grand Tetons with its majestic peaks and mountain lakes (better than Yellowstone, but don’t miss seeing its geysers).

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Muir Woods with its costal redwoods and Yosemite too. Look at staying in the Wawona Lodge in Yosemite. It is a ways from the main village, but a great, basic, throwback hotel. Closer to home, Mt. LaConte near Gatlinburg, Tenn. has a lodge on the mountain that you can only reach by foot. Brown County and several of the Indiana parks are not bad either.

Hikes not taken yet or ever to be taken. Mt. Kilimanjaro in Kenya and the Annapurna in Nepal. I don’t like the minor symptoms of altitude illness, much less the major ones. Kilimanjaro at over nineteen thousand feet and Annapurna at almost eighteen thousand feet are off my list. I can hike in Nepal at lower altitudes and it is on the list. We are scheduled to do a six day survey trip of “The Mighty 5″ National Parks of Utah in September. They are: Canyonlands, Capital Reef, Bryce Canyon, Arches and Zion.

I am hiking Holliday Park to get ready. I will let you know.

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This is one of an ongoing series of travel discussions by John Wilson, retired lawyer and trust banker. John was motivated to start this series when he realized that his travel bio was more extensive and interesting than his legal credentials for doing ICLEF talks. He has traveled to forty-five states, over sixty countries and all continents except Antarctica.

If you have travel questions or tips of your own that you would like to suggest please contact ICLEF’s travel expert, John Wilson, by Clicking Here.

Photographs © 2014, John Wilson. Photographs may not be used without permission. 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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