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When do former clients create conflicts of interest?

By: Arend J. Abel, Attorney

Lawyers often conclude that once representation of a client ends, they are free to take on matters adverse to the former client.  However, that is not always the case.  The Indiana Rules of Professional Conduct specifically provide that there are circumstances where a lawyer may not take a representation that is adverse to a former client.  Indiana Rule of Professional Conduct 1.9 provides that a lawyer may not, absent informed consent, represent a client who is adverse to a former client where the matters are “the same or substantially related.”  It’s easy to tell if matters are “the same.”  The trick is to determine what counts as a “substantially related matter.”

The answer to the question of whether matters are “substantially related” is sometimes counterintuitive.  For example, a lawyer who has generally represented a business owner and obtained information regarding the business owner’s finances likely cannot later represent the business owner’s spouse in a divorce, because the financial information learned from the previous representation may be highly relevant to property settlement issues.

On the other hand, a lawyer who has repeatedly defended employment matters for a business may not be disqualified from later representing persons making employment claims against the former client, because the facts of each separate employment matter stand on their own.

There are some cases that fall between those two types of representations.  For example, the Indiana Court of Appeals in XYZ, D.O. v. Sykes, 20 N.E.3d 582 (Ind. Ct. App. 2014) disqualified a law firm because one of its lawyers had previously represented the adverse party doctor in six medical malpractice suits and the current representation involved an additional allegation of malpractice, coupled with a negligent credentialing allegation against a hospital for failure to adequately investigate the circumstances of the six prior malpractice suits.  The Court of Appeals held that the two matters were substantially related and therefore the lawyer and her firm were disqualified.

The key test to determine whether matters are “substantially related” is whether there is a substantial risk that specific confidential factual information of the kind that would normally have been obtained in the prior representation would materially advance the new client’s position against the former client.  General knowledge of the former client’s policies and practices is ordinarily not enough to result in disqualification, at least for organizational clients.

Before taking on a representation that is adverse to a former client, an attorney must carefully consider the scope of the prior representation and the kind of information that would normally have been obtained from the former client for that sort of representation.  Then, the lawyer must assess whether information that would normally have been obtained from the former representation could be helpful to the new client.  If it is, the lawyer must decline the new representation.

Filing Deadlines Vary for Boy Scout Sexual Abuse Claims

By: Ashley Hadler, Attorney

For survivors of childhood sexual abuse, it may take decades to begin processing what has happened to them. The unique struggles and obstacles faced by survivors of childhood sexual abuse can have a negative effect on their ability to pursue a civil lawsuit. This is because the survivor may not recall what occurred or connect their abuse to the harms they have suffered until much later. By the time the survivor makes that connection, the time frame for them to file a civil lawsuit may have lapsed. The legal term for the deadline to file a lawsuit is the “statute of limitation.” Statutes of limitation are laws passed by state legislatures that place time limits on how long a person has to file a lawsuit in court.

Concerns about whether a statute of limitation has expired frequently come into play in childhood sexual abuse cases. As an example, many survivors of childhood sexual abuse by a volunteer of the Boy Scouts of America organization have come forward. The Boy Scouts organization currently faces hundreds of accusers in multiple lawsuits across the country. The survivors filing lawsuits are from all walks of life and the age range for these survivors varies greatly.  Older survivors will have to show that their case fits within their state’s statute of limitations in order to be successful in pursuing their claim.

Some states are changing the statute of limitations to offer more access to justice for sexual abuse survivors

States across the nation are beginning to recognize this obstacle to justice and are taking a closer look at, and changing, their statutes of limitations for childhood sexual abuse cases. Delaware and New York have repealed requirements altogether, meaning that survivors of any age can seek damages in a civil lawsuit. Other states are considering legislation that would either eliminate limitations or expand them to allow more survivors to come forward. This process is referred to as statute of limitations reform.

Under current Indiana law, survivors of childhood sexual abuse have a limited amount of time to file a civil case against their abuser. The Indiana General Assembly is currently studying how statutes of limitations for civil lawsuits uniquely affect survivors of childhood sexual abuse. If the proposed changes to the statute of limitations law are adopted it would open a window of time to allow Indiana survivors of sexual abuse, whose statutes are currently expired, the opportunity to file a claim. Expanding the statute of limitations would allow more survivors to receive compensation for costs associated with treatment and rebuilding their lives. It would also hold perpetrators and organizations who enabled the abuse accountable for their actions and protect future victims.

States expanding or abandoning limitations on civil lawsuits have led the Boy Scouts of America to consider filing bankruptcy due to the large number of pending and potential claims against them. While the Boy Scouts have not officially filed for bankruptcy, they are exploring that option. Other organizations whose policies and actions allowed sexual abuse to occur, like USA Gymnastics, have used bankruptcy as a strategy to limit their losses and protect their assets.

VIDEO: Greg Laker explains statutes of limitation

Talk to an attorney for free to find out if you have a case

Statutes of limitations are always a concern in these types of cases, and the looming possibility of bankruptcy proceedings makes it even more necessary to talk with an attorney as soon as possible to protect your rights and interests. If you or a loved one is the victim of childhood sexual abuse at the hands of a Boy Scout troop leader or volunteer, our sexual abuse attorneys will stand with you throughout the civil litigation process. Please contact us for a free and private consultation on your case today.

Thousands of Boy Scout Members Allege Sexual Abuse

By: Ashley Hadler, Attorney

Sexual abuse allegations from former scouts across the country are piling up against the Boy Scouts of America. The Boy Scouts organization, which provides programming for millions of children across the country, is embroiled in multiple lawsuits regarding their policies on background checks.  The civil lawsuits allege the policies allowed more than 7,000 perpetrators of sexual abuse to volunteer. By volunteering, perpetrators had unfettered access to kids as young as five years old. The allegations span many decades and, if founded, are evidence of pervasive and nationwide abuse.

In October 2012, an Oregon court ordered the Boy Scouts to release internal files that were kept to track suspected and convicted child molesters that volunteered for the organization. These files, referred to by the organization as “the red files” or the “ineligible volunteer list,” were nearly 20,000 pages meant for use by the organization to prevent pedophiles from volunteering.

But that list was rarely checked in the hiring process, according to the allegations in recent complaints. The fallout from the release of the red files has been tremendous—current estimates of the number of victims surpass 12,000 boy scouts who were molested and/or sexually abused by troop leaders or other volunteers from 1944 to 2016.

The release of the red files exposed men from every walk of life and every corner of the country, including Indiana. Indiana cases demonstrate the complacency of the Boy Scouts of America in using the red files for their intended purpose—preventing dangerous people from using the organization to gain access to harm children. Thomas Hacker was a troop leader and volunteer for the Boy Scouts in Indiana in the 1970’s before he was convicted of felony child sexual abuse in 1973. Following his conviction, Hacker moved to the Chicago suburbs where he was allowed to re-join as a volunteer with the Boy Scouts, resulting in his molestation and abuse of more children. Fifteen of those Chicago scouts filed suit against the Boy Scouts in 2018.

Yet another Indiana case involved an unnamed troop leader who was added to the red files in 1972 after admitting to molesting young scouts. But officials at the Boy Scouts organization wrote next to his name that he had been “cured” through psychiatric treatments and meetings with his minister, and was subsequently allowed to register as a troop leader once again. Ten years later, the same troop leader was allowed to host a sleepover, after which two boys accused him of molesting them. The troop leader eventually admitted to molesting the boys and resigned from scouting, but there is no indication on whether local law enforcement was ever notified.

If you are a survivor of childhood sexual abuse and exploitation at the hands of Boy Scout leaders and volunteers, you are not alone. Our attorneys have decades of experience fighting for survivors of sexual abuse in the civil justice system. Our sexual abuse attorneys have received professional training to deal with the unique circumstances that survivors of sexual abuse and trauma face. If you or a loved one has been sexually abused, please contact us for a free and confidential case evaluation.

Watch Greg and Ashley talk about how they help survivors

Indiana Court of Appeals upholds and “reforms” covenants not to compete and not to solicit customers or employees

By: Arend J. Abel, Attorney

On April 15, 2019, the Indiana Court of Appeals issued a decision that could mark a major shift in the law relating to non-compete and non-solicitation agreements.  Heraeus Medical, LLC v. Zimmer, Inc., No. 18A-PL-1823 (April 15, 2019).  The decision contains three  holdings of significance:  (1) that a covenant need not have an explicitly defined geographic scope, (2) that a covenant can protect prospective customers with whom the departing employee had recent contact, and (3) that an express provision in a covenant can permit a court to reform an overly broad covenant so as to make it enforceable.

The case involved two medical device companies who had an agreement for one of them (Zimmer) to serve as the exclusive distributor of bone cement manufactured by the other (Hereaus).  Hereaus terminated the agreement in December of 2018, formed its own subsidiary to sell and distribute the product, and hired Robert Kolbe, who had been Zimmer’s Director of Enterprise Solutions for the eastern United States.  Kolbe had a non-compete agreement with Zimmer, which also prohibited him from soliciting Zimmer customers and employees.

In part, the employee non-solicitation agreement prohibited Kolbe from soliciting “any individual employed by Company at the time of Employee’s separation from Company employment.”

The “Restricted Territory” for the non-compete and customer non-solicitation clauses was defined as:

(i) any Customer-specific or geographic territory assigned to, or covered by, Employee during Employee’s last two (2) years of  employment with Company;  (ii) any state or portion of any state assigned to Employee by Company for purposes of any sales or service activities or responsibilities at any time during the two (2) years preceding the termination of Employee’s employment with Company; or (iii) any county, municipality or parish of any state or commonwealth assigned to Employee or in which Employee engaged in any sales or service activities on behalf of Company at any time during the two (2) years preceding termination of Employee’s employment with Company

The customer non-solicitation covenant prohibited Kolbe from soliciting both customers and “Active Prospects, which the agreement defined as:

[a]ny person or entity that Company, through its representatives, specifically marketed to and/or held discussions with regarding the sale of any of Company’s products or services at any time  during the last six (6) months of Employee’s employment with Company and with respect to whom, at any time during the six (6) months immediately preceding the termination of Employee’s employment with Company, Employee had (i) any marketing or sales contact on behalf of Company and/or ii) access to, or gained knowledge of, any Confidential Information concerning Company’s business prospects with such Active Prospect.

Defendants first contended that the failure of the agreement to geographically describe the restricted territory rendered it void.  However, the Court held that Indiana law “requires only that the geographic scope of restrictive employment covenant be reasonable, not that it be spelled out in explicit terms.”  The Court also held that the geographic scope of the covenant could be shown by extrinsic evidence concerning the portions of the country that were assigned to Kolbe.

Defendants also contended that the prohibition on soliciting “active prospects” was invalid, asserting that Indiana Law did not permit covenants that reached prospective customers.  Again, the Court rejected the argument, holding that because the covenant applied only to prospective customers with whom Kolbe had contact during the last six months of his employment with Zimmer, it was “limited in both scope and duration,” and therefore was valid.

Finally, Defendants contended that the employee non-solicitation covenant was void because it was overly broad.  Specifically, it applied to all employees of Zimmer, including “employees such as drivers or shelf stockers.”  The Court agreed that the provision against soliciting employees was overly broad because Zimmer “has not shown that it has a legitimate protectable interest in its entire workforce, which includes many employees who would not have access to or possess any knowledge that would give a competitor an unfair advantage.”

However, the Court refused to invalidate the entire covenant because the parties agreed to a provision in the agreement that “any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable under applicable law.”  The Court acknowledged that prior law held that a court could not “not create a reasonable restriction under the guise of interpretation, since this would subject the parties to an agreement they have not made.”   But the Court held that the reformation provision made all the difference because “ the parties specifically agreed” that a court interpreting the agreement had the authority to reform any unreasonable provision to make it enforceable.

There are several lessons that can be learned from Heraeus Medical.  First, it is permissible to define the geographic scope of a non-compete by reference to the employee’s assigned territory, without expressly naming or describing that territory.   Second, restrictions on soliciting prospective customers are enforceable as long as they are limited to prospective customers with whom the employee had contact within a short period before the employee’s departure.  Finally, and perhaps most surprisingly, a court can “reform” an invalid non-solicitation provision to make it valid as long as there is an express provision in the agreement providing that authority.  Businesses should review (and likely should revise) their non-compete and non-solicitation agreements in light of this new decision.

Prenuptial Agreements and Postnuptial Agreements: What to Know

By: Brian K. Zoeller and Nicole Makris, Attorneys

Prenuptial agreements and postnuptial agreements are practical resources for couples seeking to simplify the property aspects of their relationships by designating how the property and debts of their marriage will be distributed in the event of a future legal separation, divorce, death, or other event.

What is a Prenuptial Agreement?

Far from a new concept, the ancestor of today’s prenuptial agreement, also known as a premarital or antenuptial agreement, is estimated to date back around 2,000 years. Under Indiana Code 31-11-3-2, a premarital agreement is an agreement between prospective spouses that is executed in contemplation of marriage and becomes effective upon marriage. These agreements define the parties’ property rights in the event of legal separation, divorce, death, or other events. Because of this, courts have noted that prenuptial agreements are favored in that they can resolve property issues that otherwise would be the source of litigation.

In order for a prenuptial agreement to be valid, the agreement must be in writing, cannot be unconscionable, and must be entered into freely, without fraud, duress or misrepresentation. Full disclosure between the soon-to-be spouses as to their individual assets and debts is extremely important when entering into a prenuptial agreement to insure their enforcement.

Prenuptial agreements can prove to be extremely valuable in the event of legal separation or divorce by outlining each spouse’s property rights, from real estate to bank accounts. Prenuptial agreements also distinguish responsibility for the debts of the couple, such as student loans and credit cards. Having an agreement on these issues before marriage can minimize the number of issues that the couple would otherwise have to determine if a spouse later files for legal separation or divorce.

What is a Postnuptial Agreement?

Postnuptial agreements, also known as reconciliation agreements, are a useful option for couples who are facing the possibility of divorce but are willing to reconcile. When there has been infidelity or other conflicts in the marriage, postnuptial agreements provide couples with the opportunity to reconcile while outlining their respective rights and responsibilities as to marital property and debts in the event that the relationship ends in the future.

The key distinction between prenuptial agreements and postnuptial agreements is that postnuptial agreements take place after the couple is married rather than before the marriage. As with prenuptial agreements, the couple should fully disclose to one another the extent of their assets and debts.

Prenuptial agreements and postnuptial agreements are useful tools for couples who wish to clearly outline how the marital estate is to be divided in case a legal separation, divorce, death, or other event occurs in the future.

Maximizing the Possibility that Using an Entity For Your Business Will Actually Limit Liability

By: Arend J. Abel, Attorney

Many times, business owners will set up one or more corporations, or other entities such as LLCs, to conduct business.  Typically, the entities are created to limit the owner’s liability for the business’s debts, or to protect one business from the liabilities of another business.  However, often the owner does not go beyond formation of the entity to take the additional steps needed to maximize the chance that having one or more entities will fulfill those goals.  Absent those steps, Courts sometimes disregard the existence of the entities by “piercing the corporate veil” and hold the owners liable for the business’s debts, or hold one entity liable for the debts of another.  Here are some steps that can help avoid such a result.

Keep Finances Separate and Document Transfers

The most important step in making sure the entity is recognized as separate from its owner is to keep the owner’s and the entity’s financial affairs strictly separate.  Among other things, this requires a good set of books for the entity, and a separate bank account.  Multiple entities each should have a separate set of books. Any transfers between owner and entity should be scrupulously documented as loans, capital contributions, distributions, or salary, depending on the nature of the transfer.  Transfers between the entities should be avoided, if possible, unless one entity is a subsidiary of another.  If one entity is a subsidiary of the other, then transfers from the subsidiary should be documented as distributions or dividends.  Transfers from parent to subsidiary should be avoided, but if necessary should be documented as loans or capital contributions.  Other inter-entity transfers should ordinarily be documented as loans and, again, should ordinarily be avoided.

Adequately Capitalize the Entity When Formed

One factor Courts look at in deciding whether to pierce the corporate veil is whether the entity was adequately capitalized when formed.  Many business owners don’t contribute substantial working capital to an entity at the outset, instead simply moving money in and out of the entity as needed.  But the lack of capitalization, and shuffling funds in and out, creates a risk a court will disregard the entity.  Given that a business will inevitably have expenses and need working capital, the owner should put in an amount large enough to sustain the business’s expenses for several months, at least.  A year’s worth of expenses is even better.  The money should be put into the entity when it is formed, in exchange for shares the entity issues to the owner.

Create and Issue Share Certificates

Another step that owners should take is to actually issue share certificates, in exchange for the capital contributions made when the entity is formed.  It is surprising how many business owners fail to take this basic step.  The absence of share certificates suggests that the owner is doing business in his personal capacity, rather than through the entity.  This creates an unnecessary risk of personal liability.

Have Separate Phone Numbers, Addresses and Letterhead

The owner and the business should have separate phone numbers, even if the business number is forwarded to the owner’s line.  They should also have separate addresses.  If the business is run out of the owner’s home, even a P.O. box as a corporate address helps reinforce the fact that the business is separate from the owner.  Multiple entities should also have separate phone numbers and addresses.  The entity should have letterhead for correspondence, and if there are multiple entities, each should have its own letterhead.

Use Distinct Names for Multiple Entities

Another factor courts sometimes look at in piercing the veil between multiple entities is whether they share similar names.  Avoiding similar names is another way to reinforce corporate separateness between entities.

Have a Management Structure and Regular Meetings

If the entity is a corporation, it should have a Board of Directors.  If there is only one shareholder, trusted advisors can act as members.  The Board should meet at least once a year.  If there are multiple shareholders, they should also meet at least once a year.  Even a single shareholder can have a “meeting” at which corporate action is taken.  No Board of Directors is required for an LLC, but if there are multiple members, they should have regular meetings.  The entity should issue notices before the meetings, and a corporate secretary should document all meetings with minutes.  Minutes, notices, and corporate resolutions should be kept in a minute book.

To maximize the chance that entities formed for businesses will effectively shield the owner from personal liability, and will shield the assets of one entity from the debts of another, business owners should consult with an experienced attorney to guide them through the process.

Protecting Confidential Business Information

By: Arend J. Abel, Attorney

Sometimes businesses face a situation where an employee has departed and taken key information that can be used to hurt the business competitively.  This article focusses on steps a business can take to minimize that risk, and if information is nevertheless stolen, to seek redress under the Uniform Trade Secrets Act.  The Act has been adopted in Indiana and most other States.

Identify the Information to be Protected

The first step a business should take is identifying the specific information to be protected.  Customer lists may be some of the most valuable information a business has, and their theft and use by competing businesses may cause severe harm.  Other information, including formulas, business processes and technology, can also be valuable trade secrets.  A trade secret can be any information that derives independent economic value from not being generally known and not being readily ascertainable by other parties through proper means, i.e., means other than stealing the information from the business.

Take Reasonable Steps to Maintain Secrecy

Information does not qualify as a trade secret unless the business has made reasonable efforts to keep the information secret.  These efforts can and should include physical and electronic security measures.  The business should keep paper information in locked offices and filing cabinets.  Electronic information should be protected through the use of computer security that limits access to the information to only those employees who need to know the information to do their jobs.  In some cases, the business should require employees with access to confidential information to use only company-provided computers, phones, and portable devices to conduct company business and store company information.

A business should also maintain the secrecy of its confidential information by requiring employees with access to the information to sign non-disclosure agreements.  The agreements should list the types of information the employee is barred from disclosing.

Non-competition agreements are also an important tool to maintain the secrecy of confidential information.  However, non-competition agreements must be reasonable in scope.  This means that the geographic area in which the employee is barred from competing must be well defined , and no broader than necessary to protect the employer’s legitimate interests.  The agreement must also be limited in time, barring the employee from competing for only as long as necessary.  Finally, the agreement must be limited in terms of the activities prohibited.  Typically, agreements should prohibit the employee only from working for a competing business in the same or a similar capacity as the employee worked for the business with which the employee signed the agreement.

Enforcing Restrictions

Sometimes, despite the business’s best efforts, an employee may steal confidential information and use it to compete.  In such cases, the only recourse may be litigation against the employee.  A business might obtain a court order requiring the employee to stop using the information and return it.  If there is a non-competition agreement, a court may prohibit the employee from competing in violation of the agreement’s time, geographic and activity limitations.  If the business has been harmed, damages may be available.

To protect confidential business information, a business owner should consult with an attorney experienced in such matters, including litigation.  Cohen & Malad, LLP’s business and litigation attorneys can assist with this process.

Third-Party Payments for Legal Services

By: Arend J. Abel, Attorney

Occasionally, a lawyer will run into a situation where someone other than the client agrees to pay the lawyer for the representation.  This situation arises most frequently with insurance, but also can occur when a company pays for an employee’s defense or a relative pays for the representation of an individual.  Third-party payment creates ethical issues for the lawyer, and is specifically governed by the Indiana Rules of Professional Conduct.  Rule 1.8(f) provides:

A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1)    the client gives informed consent;

(2)    there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3)    information relating to representation of a client is protected as required by Rule 1.6.

Los Angeles Jury Awards $45 Million to Sexual Abuse Survivor After Years of Abuse

On Thursday July 26, 2018, a Los Angeles jury awarded $45 million to a girl who endured sexual abuse at the hands of her mother and four men at a home where she was placed by the county despite evidence she was being molested. The girl, now 15, said in a lawsuit against Los Angeles County that social workers had reasonable suspicions she was being abused, but they failed to inform authorities. The girl’s mother and the men were previously convicted of abusing the girl starting in 2010.

Unfortunately, cases like this are not isolated events. However, victims of sexual abuse do have ways to hold a perpetrator accountable.  Similar to the brave young woman in the Los Angeles case, a victim of sexual abuse can initiate a civil lawsuit. While a criminal case is designed to hold a defendant accountable to the State, a civil lawsuit is designed to hold the defendant accountable to the victim.  In a civil case, the victim initiates and controls the case and brings the action regardless if the perpetrator has been found guilty in a criminal prosecution.

Effective Appellate Briefing

By: Arend J. Abel, Attorney

What’s the best way to write an effective appellate brief?  The short answer is to use every part of the brief as an opportunity for advocacy.  Here are some section-by-section tips for doing so.

The Table of Contents

The first thing the court sees when opening the brief is the table of contents.  A good table of contents will be an outline of the argument, so the Court can read, understand, and hopefully be persuaded by the argument before ever reading a substantive paragraph of the brief.  The best way to create such an outline is to make sure each heading in the argument is a full statement of one of the points of the argument, not just a statement of the subject of the section or subsection.  So, a heading that says, for example, “The Statute of Limitations Did Not Begin to Run Until Mr. Brown Learned Smith Was Planning to Sell the Business When He Bought Mr. Brown’s Stock” is superior to one that simply says “The Statute of Limitations Has Not Run” or a subject heading “Statute of Limitations.”  Worse still is the uninformative heading “The Trial Court Erred in Granting Summary Judgment.”