1 Major Changes in Federal Subpoena Practice Page 14 Testator s attorney owed duty of care to unidentified relatives reference in will Page 16 Fort Wayne, Indiana November/December 2013
2 Page 2 A Message from NIPA s President Inside this issue: Lori Wagner, RP President & Primary Rep. The board is working hard to implement a very intense marketing plan. We are very excited for some of these changes and ideas to take place. Upcoming Events 3 Membership News 4 NIPA Board 5 Have you taken the NFPA membership survey yet? C l i c k o n t h i s l i n k a n d d o s o t o d a y. This information is very important to the strategic plan of the national Federation. The Indiana State Bar Association held their annual meeting in October. Kelly Farrow, Assistant Director of Paralegal Certification with the North Carolina Bar Association talked on the paralegal certification program adopted in North Carolina. Kelly is open to helping Indiana get on board with a certification program. The Indiana Alliance for Paralegals will be working on this project. As a member of this committee, I will keep you informed of any developments. Fort Wayne Newspapers Deadline change 10 NFPA News 11 Proposed Changes to Allen County Fee schedules Major Changes in Federal Subpoena Practice Testator s attorney owed duty of care to unidentified relatives reference in will Healthy Indiana Allen County Circuit & Superior Court Holiday Odyssey Case Management Allen County Advertiser Phone Web Page National Service Information, Inc Ext Stewart Richardson Deposition Services (260) Summit City Reporting
3 Page 3 Happy Birthday November 12 Rachel Tucker 18 Katie Stronczek Paralegal Anniversaries: November December 18 Nichole Wiesehan-Monnier 22 Connie Feber 27 Sue Bibbee December Kim Manifold Rebeca Gonzales Upcoming Events November 3 Daylight Saving Time ends at 2:00 am 4 Stewart Richardson 5th Annual Trial By Fire Chili Cookoff 11 Courthouse Closed - Veterans Day 13 Board Meeting at Burt Blee Dixon Sutton & Bloom 19 Membership Meeting - Doug Powers on "Obamacare" 28 Courthouse Closed - Thanksgiving Day 29 Courthouse Closed - Day after Thanksgiving December 10 Deadline to submit article for the newsletter 11 Board Meeting at Burt Blee Dixon Sutton & Bloom 17 Membership Christmas Party 24 Courthouse Closed - Christmas Eve 25 Courthouse Closed - Christmas Day January 8 Board Meeting at Burt Blee Dixon Sutton & Bloom 21 Membership Meeting -
4 Page 4 Come One, Come All! It s our favorite time of year time for the 5 th Annual Trial by Fire Chili Cook-Off! On Monday, November 4, 2013, an everyday conference room will be transformed into a chili lover s ultimate dream - pot after pot of tasty chilies prepared by attorneys, paralegals, and court reporters all vying to win this year s distinction of the BEST chili in Fort Wayne! Everyone is invited to join in the food and festivities from 11 am 2 pm in the PNC Center 12 th floor conference room. A suggested donation of $5 which will be given to Toys for Tots will gain you entrance to this feast of chili tasting, accompanied by cornbread, crackers, cookies and beverages. The donation also gives each chili taster 5 votes to assign as they choose. For an additional $1 per ticket, you can enter our raffle for a chance at one of many terrific prizes.
5 Page 5 President Lori Wagner, RP Board of Directors Secretary Angie Meyer, RP Vice President Beth Hill Treasurer Alex Jokay Committee Chairs Advertising Tonya White Associate / Student Rep. Dustin Bryant Education Cindy Witters Event Coordinator Sarah Cantrell Fund Raising Nichole Wiesehan-Monnier Job Bank Coordinator Laurie Heaston-Walters Newsletter Carrie Thomas Parliamentarian Mickie Potter Primary Rep. Lori Wagner, RP Pro Bono Jeanne McEntee Public Relations Julie Krider Website Editor Jennifer Mahoney Membership Nichole Wiesehan-Monnier
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7 Page 7 The Northeast Indiana Paralegal Association Cordially Invites You to Our ANNUAL CHRISTMAS PARTY December 17 12:00 p.m. to 1:00 p.m. Save the Date More information to follow.
8 Page 8 Congratulations! At the Indiana State Bar Association s Awards Luncheon, the ISBA recognizes individuals for their tireless efforts and outstanding achievements. Congratulations to the 2013 award winners! Presidential Citations recognize individuals for their exceptional contributions to the profession of law and the citizens of Indiana. Honorable Thomas J. Felts, Fort Wayne Harrison Legal Writing Awards are presented to the top three articles that were published in Res Gestae from September 2012 thru June The articles are judged on significance of subject matter, practicality and timeliness; quality of research and legal analysis; and clarity and style: Tied for Second Place ($750): Appealing Orders Before a Case Ends: Dos, Don ts and Modest Proposals by William A. Ramsey, Fort Wayne For the rest of the article go to Indiana Lawyer. NIPA Needs You! NIPA members, this is your association and this is your publication, so we want to hear from you. We want to know what you are thinking about, what you are doing, who you are. We are always accepting articles, feature columns, and advertisements. If it has to do with the paralegal profession, we re interested. Just think what a coup it would be to include the fact that you re a professionally published author on your résumé. If you re not sure what to write about and you re a member - voting, student, or corporate- just contact us and we can spotlight you. We ll provide the questions and you provide your answers and a professional photograph (or logo). Get your name out there, build your personal or professional brand, and make new contact. Don t be shy and don t delay-send your articles, inquiries, advertisements, and pictures to The submission deadline for the next issue is Monday, December 10.
9 Page 9 Haller & Colvin 2 nd Annual Chili Cookoff The results are in and the voting was close. Margy Feighner (chili number 2) was the winner of the Haller & Colvin second annual chili cook-off. 1st Place Margy Feighner (chili 2) 34 votes 2nd Place Andrew Teel (chili 8) 22 votes 2nd Place Don Swanson (chili 4) 22 votes 3rd Place Andrew Teel (chili 3) 19 votes 4th Place Mark Chambers (chili 10) 15 votes 5th Place Estella Rodriguez (chili 7) 12 votes 6th Place Jo Barrett (chili 6) 10 votes 7th Place Lindsey Swanson (chili 5) 5 votes 8th Place Mark GiaQuinta (chili 1) 2 votes 8th Place Spencer Feighner (chili 9) 2 votes Angie Meyer coordinated the whole event. We also had corn bread, dessert and supplies donated. We raised $ for our Christmas family.
10 Page 10 Fort Wayne Newspapers Deadline change Dear Advertisers: We have new deadlines for Monday, please see below. These deadlines are for line/single/in column ads. All notices that are multiple columns (displays) we request that at least seven days for receipt/ designing and proofing. (Budget Estimates, Annual Report, Notice to Taxpayers, Annual Performance Report, Tax Sale, etc). For ad appearing on: Monday Tuesday Wednesday Thursday Friday Saturday Legal Deadlines: (Receipt, corrections and cancellations) *Displays/multiple column deadlines at least seven days for receipt/designing and proofing. (Budget Estimates, Annual Report, Notice to Taxpayers, Annual Performance Report, Tax Sale, etc). Please note below is your requested schedule and cost. If there is a discrepancy, please let me know soon as possible. **Invoices/Proof of Pubs/Affidavits are mailed out on Thursday a week after the last run date Your ad is scheduled to run as follows: Ad #: Date: Publication: JG & NS Cost: $ Feel free to call me with any questions. Thanks Terrie Terrie Brown-Smith Legal Sales Coordinator Must be received by Thursday at 3 p.m. Friday at 3 p.m. Monday at 3 p.m. Tuesday at 3 p.m. Wednesday at 3 p.m. Thursday at 3 p.m.
11 Page 11 FROM THE PRIMARY REPRESENTATIVE - Lori A. Wagner, RP The annual NFPA convention was held in Hartford, Connecticut on October 3, 2013, and ran through Sunday, October 6, Thursday was a busy day with CLE seminars provided from 9:00 am until 4:00 pm. Beginning at 4:15 there were two workshops offered. One was a student workshop and the other was strategic planning. I conducted the workshop on strategic planning as part of my coordinator s position. There were 19 members in attendance and many valuable ideas were exchanged. A vendor s reception was held following the workshops, giving delegates an opportunity to meet the vendors and sign up for door prizes. The NFPA board meeting began Thursday night at 7:00 pm and was adjourned at 11:15 pm. The meeting addressed outstanding routine business, convention reporting and bids for upcoming conventions and joint conference. Friday began with the Region meetings. The region director recapped the Thursday night board meeting for those we were unable to attend. Several board members visited throughout the day to give a summary of their board position. The Cleveland Association of Paralegals has graciously volunteered to host the Spring Region meeting. This meeting will be held on May 16 and 17, More details will be coming. Following the coordinator s appreciation luncheon, most of the afternoon was spent reviewing the agenda topics that would be presented during the policy meeting on Saturday. All region meetings were adjourned 4:30. From the region meetings, everyone was whisked away to the Treasurer s meeting. Georgette Pecoraro, RP, presented the proposed budget for the final time and answered any remaining questions. The delegates will vote to approve this budget on Sunday morning during the policy meeting. Finally, a time to network. A lovely social event was held from 6:30 pm until 10:00 pm at the Hartford Club. Cocktails and an interesting game of bingo started the evening, followed by a wonderful meal and a night of dancing. Saturday and Sunday were dedicated to the policy meeting. Even our policy meeting saw the effects of the government shut down. Normally the color guard gives an impressive ceremony with the presentation of the colors. But this year, because of the furlough, no ceremony was held, just the standing and saying of the Pledge of Allegiance. The roll call began the meeting with 41 associations credentialed to sit on the policy floor. The general business was conducted. I have a detailed agenda if anyone would like more details of what was discussed. Look for more NFPA news on pages 15, 24, 27 & 28!
12 Page 12 NIPA MEMBERSHIP BENEFITS As a member of NIPA, some of the benefits that you will receive are: Automatic membership in the National Federation of Paralegal Associations (NFPA), the oldest and largest national paralegal association The chance to meet and network with other paralegals Educational meetings featuring speakers on legal topics and topics affecting the paralegal profession A Job Bank with Information about local job openings Discounts on educational seminars Salary and benefits surveys Timely news about issues affecting paralegals Articles about local paralegals and paralegals in other states Access to members-only pages on both the NIPA and NFPA websites Directory of NIPA members including their area of practice Information about paralegal duties and responsibilities Public service announcements Links to CLE and other websites A chance to win the Paralegal of the Year Award Personal and professional growth through leadership opportunities Representation in the Indiana Alliance of Paralegal Associations regarding matters affecting paralegals in Indiana, including regulation invite your co-workers To become Members!!
13 Page 13 Proposed Changes to Allen County Fee schedules Indiana Lawyer Staff October 23, 2013 Allen Superior Court is, again, offering for public comment proposed changes to the fees for its alternative court programs. The proposed amendment focuses on the local rule for the assessment of court drug- and alcoholprogram fees and problem-solving court program fees. The local rule has to be changed periodically when fees are updated in the state statute. The proposed amendment would remove the specific dollar amount from the local rule to charge whatever the Legislature authorizes. Funds generated by the fees are used to support the staff and operations of the programs, said Allen Superior Judge Frances Gull. Currently the local drug court has about 150 active clients. Since the drug program started in 1997, an estimated 600 have graduated. The proposal is to correct a technical error, Gull said. The order was originally to take effect Jan. 1, 2012, but it was not sent to the state court administration to be published. The bar and the public can comment on the proposed amendment through Nov. 18, Comments should be made in writing and mailed to: Hon. Frances C. Gull, Judge of the Allen Superior Court Attn: Public Comment on Local Rules Allen County Courthouse 715 S. Calhoun St. Fort Wayne, IN A copy of the proposed amendment is available both at the office of the Clerk of Allen County in the Allen County Courthouse at 715 S. Calhoun St., Fort Wayne and online at The change to the local rule will be adopted, modified or rejected before Nov. 19, 2013.
14 Page 14 AMENDED OR CORRECTED Major Changes in Federal Subpoena Practice Gregory P. Joseph* Reproduced with permission from The United States Law Week, 82 U.S.L.W. 584 (Oct. 22, 2013). Copyright 2013 by The Bureau of National Affairs, Inc. ( ) < Effective December 1, 2013, the reach of federal subpoena power, the court in whose name you issue subpoenas, and the court designated to resolve motions to quash will all change. Absent congressional action, which does not seem to be a threat on almost any front, these and other major changes to civil subpoena practice will go into effect in a substantially revamped Federal Rule of Civil Procedure 45. There are ten major changes you need to know, and two equally critical aspects that have not changed you need to keep in mind. What Has Changed 1. Issuing Court. Beginning December 1st, subpoenas must be issued in the name of the court presiding over the case, not in the name of the court in which the subpoena is served, under amended Rule 45(a)(2). Through November 30th, subpoenas for depositions and document production are issued in the name of the court for the district in which the deposition or document production is to take place. 2. Nationwide Service. Under amended Rule 45(b)(2), a subpoena may be served any place within the United States. Thus, a subpoena issued in the name of the federal court in Minneapolis may be served in New York, Houston or Los Angeles. Any lawyer authorized to practice in the issuing court may issue and sign the subpoena and have it served anywhere in the country. See Rule 45 (a)(3). 3. Nonparty Witnesses Subject to 100-Mile Limit, Except for Trial. If the subpoena is for a deposition or a hearing (not a trial), a nonparty witness can be compelled to travel only within 100 miles of where he or she resides, is employed, or regularly transacts business in person. See Rule 45(c)(1)(A). If a nonparty is subpoenaed for trial, that person can be compelled to travel anywhere within his or her state of residence, as long as doing so does not entail substantial expense. Rule 45(c)(1)(B)(ii). If it does, the Advisory Committee Note suggests that the subpoenaing party offer to pay the expenses, and notes that the court can condition enforcement of the subpoena on such payment. 4. Parties and Party Officers Strictly Confined to 100-Milesor Statewide Limit. If the subpoena is for the testimony of a party or party s officer, that person may be compelled to travel anywhere (Continued on page 21)
15 Page 15 API PACE Review Course The National Federation of Paralegal Associations (NFPA ) and the Advanced Paralegal Institute (API, a.k.a. Advanced Institute for Paralegal Studies or AIPS) are pleased to offer an online review course for the Paralegal Advanced Competency Exam (PACE ). The course runs for seven weeks, plus a brief pre-course orientation to familiarize students with the software used by API. API courses are taught through computer-mediated distance learning. Students may communicate with instructors or classmates around the clock from their home or office computer. The review course will help paralegals prepare to take PACE by covering the five domains: administration of client legal matters, development of client legal matters, factual and legal research, factual and legal writing, and office administration. Ethics questions are found in each domain. The textbook will be the PACE Study Manual and a mock PACE exam will be administered at the conclusion of the course. PACE Review Course Registration Form Start Dates: November 11, 2013 January 13, 2014 February 17 March 17 April 21 June 2 July 14 August 18 September 15 October 20 November 17 Additional courses may be added if sufficient interest is expressed. Tuition for the PACE Review Course is $395. Please note there is no refund once the course begins. If you wish to withdraw or drop the class after it begins, you may take it again within one year at 1/2 the current tuition cost. The PACE Study Manual must be purchased by the student directly from the publisher or through Amazon.com prior to the start of the class. Upon receipt of a written notice of withdrawal, tuition fees, less Forty Dollars ($40), will be refunded after registration but prior to the start of the orientation class. No refunds will be given after the first calendar day of the start of the course. No refund will be provided on the Study Manual. Students who take the PACE Review Course are not guaranteed to pass PACE or necessarily be eligible to take PACE. Students who have taken the PACE Review Course and fail the PACE exam may retake the Review Course for a second time, within a one year period, (Continued on page 28)
16 Page 16 TESTATOR S ATTORNEY OWED DUTY OF CARE TO UNIDENTIFIED RELATIVES REFERENCE IN WILL By Samson Habte Oct Intended beneficiaries of an estate plan in which their expected inheritance was to come through a list of bequests the testator mentioned but did not specify in the will or to her attorney may sue the willdrafting lawyer for malpractice as "known" third-party beneficiaries, the Indiana Court of Appeals held Oct. 15 (Ferguson v. O Bryan, 2013 BL , Ind. Ct. App., No. 49A CT-917, 10/15/13). The ruling revives a lawsuit against attorney Berton O'Bryan, who drafted a will that referenced a separately prepared list of bequests his client wished to leave to relatives she planned to name in that list. Those bequests were invalidated after O'Bryan failed to ensure that the list was executed before his client died. The relatives then sued for malpractice. A trial court dismissed the complaint, holding that the plaintiffs lacked standing because they were not "known" beneficiaries. Dividing 2-1, the appeals court reversed BL , Ind. Ct. App., No. 49A CT-917, 10/15/13 Judge Terry Crone noted that the case turned on a question not answered in Walker v. Lawson, 526 N.E.2d 968 (Ind. 1988), the leading Indiana decision on when a Will-drafting lawyer's duty of care extends to third-party beneficiaries of the lawyer's services. Holding: An estate beneficiary who is identified to a willdrafting lawyer but not specifically named in the will is a "known beneficiary" who may sue the lawyer for negligently drafting the document. Significance: Extends concept of "intended" third-party beneficiary to individuals named outside the will itself. The Walker court held that such a duty arises where a beneficiary is "known" to the lawyer, Crone explained, but the opinion "did not discuss what 'know' or 'known' means in the context of the drafting attorney. " Addressing that issue here, the court concluded that lawyers need not "have the actual names" of beneficiaries to be liable to them. The plaintiffs, it said, persuasively argued that, "For purposes of the 'know' or 'known' elements, it was enough that Mr. O'Bryan knew that [his client] wanted to name specific people" in a document outside the will itself. Judge Ezra H. Friedlander dissented. The majority's decision constitutes an unwarranted relaxation of traditional privity requirements, he said. (Continued on page 25)
17 Page 17 ON THE MOVE Do you know of someone or an office that is moving or has recently moved? Please let us know so that we have the information for the next newsletter. November 27 Night of Lights The Holiday season officially begins with the Night of Lights and activities all over downtown. Most downtown cultural locations will start their holiday fundraisers on this night, including the Embassy Theatre Festival of Trees, History Center Festival of Gingerbread, and Science Central s Festival of Trains. November 30 Holly Trolley The third annual Holly Trolley shopping supports downtown retailers and helps our museum, library, and gallery gift shops too! The free trolley is a great way to explore HolidayFest events too. Learn more at HolidayFest. December 28 Last Saturdays Experience Art. Discover Downtown. Arts United or Last Saturdays
18 Page 18 HEALTHY INDIANA PLAN AND THE AFFORDABLE CARE ACT Indiana is fortunate to have the Healthy Indiana Plan, a consumer-directed alternative to Medicaid that has shifted the Medicaid paradigm in Indiana. The program currently exists through a waiver from Medicaid s rules. Our administration strongly supports the bipartisan-created Healthy Indiana Plan and has asked the U.S. Department of Health and Human Services (HHS) to allow the Healthy Indiana Plan to be used as a vehicle to bring health care coverage to more Hoosiers. Governor Pence has made clear to U.S. Health and Human Services Secretary Kathleen Sebelius that any discussion of a coverage expansion must begin with the Healthy Indiana Plan. AFFORDABLE CARE ACT 150 DAYS LEFT TO ENROLL OCT Open JAN Coverage MAR Enrollment Can Begin 1 Began 1 31 Open Enrollment Closes Information and Resources: Please check in daily to find critical health news, commentary and updates on what s happening at the local, state, and national legislative levels. Contributors to this site include veteran reporters, public health officials in the field, noted researchers and academics, association heads and top public health leaders in the U.S. government. Content is wide-ranging, including videos and podcasts showcasing the best in public health today; voices from the field; and snapshots of public health in practice. Have a new job, gotten married or recently received an award? Be sure to keep the members of NIPA informed. Send any announcement to for inclusion in the Paralegal Press.
19 Page 19 Indiana Department of Insurance Frequently Asked Questions THE IMPACT OF THE ACA ON INSURANCE COSTS What impact will the Affordable Care Act have on individual health insurance rates in Indiana? The actuaries at the Indiana Department of Insurance project a 72% average cost increase for individual health insurance in 2014 attributable to the Affordable Care Act. The cost increase is consistent with the projections made by the State s external actuaries in 2011 report. How did the State calculate the 72% increase in individual insurance costs in 2014? First, we began with the average per member per month cost for 2012, which is based on actual filings submitted to the DOI by Indiana health insurance companies. We then compared this number to average per member per month cost for 2014 filings. After subtracting normally expected cost increases or trend costs, we arrived at a 72% average cost increase for This is the increase amount in insurance costs directly attributable to the ACA. What factors caused the increase costs? In addition to the normal trend costs, the following requirements of the Affordable Care Act have significant impact on the insurance costs. Community rating (insurance rates are basically the same regardless of occupation, age or health conditions) Essential health benefits (mandated coverages) Minimum loss ratios (insurance companies are required to pay out 80% of all premiums collected in claims) Taxes and fees on insurance companies. Is the State comfortable with the assumptions made by the insurance companies in their rates filings? One of the statutory responsibilities of the Indiana Department of Insurance is the analysis and approval of insurance rates submitted by all types of insurance carriers. The Department has a staff of professional analysts and actuaries who regularly review numerous rate filings. In the reviews they develop a broad perspective of projections and assumptions prepared by insurance companies. From this perspective, they can identify and question assumptions that inconsistent or out of normal range. (Continued on page 20)
20 Page 20 Indiana Department of Insurance Frequently Asked Questions (Continued from page 19) Does this mean that all customers purchasing an individual health insurance policy will have a 72% increase in premiums? No. Individual premiums vary widely because insurance policies may include different coverage, copays and deductibles. In addition, individuals purchasing health insurance through the Federally Facilitated Insurance Marketplace whose household income falls between 100% and 400% of the Federal Poverty Level will be eligible for a sliding scale tax credits to help pay the premium. Do the federal tax credits reduce the cost of health insurance? No. The federal tax credits do not change the cost of health insurance. These credits mean that U.S. taxpayers are helping pay for the insurance through the federal government. Don t Miss the November 19 Membership Meeting! Doug Powers will speak on "Obamacare"
21 Page 21 AMENDED OR CORRECTED Major Changes in Federal Subpoena Practice Gregory P. Joseph* (Continued from page 14) within the 100-mile limit or within his or her state of residence, subject to the same substantial expense limitation. See Rule 45(c)(1)(B). Such a witness cannot be required to travel farther than that because Rule 45(c)(1) begins with the proviso that [a] subpoena may command a person to attend a trial, hearing, or deposition only as follows. This amended Rule 45(c)(1)(B) is designed to reverse decisions that have compelled senior corporate officers to travel across the country to testify at trial. Whatever judicial power may currently exist to do this and the cases are in conflict it is withdrawn effective December 1st. 5. Disputes Presumptively Resolved in Witness s Jurisdiction. The new rule is focused on sparing nonparty witnesses needless burden and expense. That is reflected in its presumption that the court where compliance is required (colloquially, the compliance court ) should hear and decide any motion to quash or modify a subpoena, and not the issuing court. See Rule 45(d)(3)(B). 6. Transfer to Issuing Court Requires Consent or Exceptional Circumstances. The compliance court retains the discretion to transfer the motion to quash or modify back to the issuing court, but only in two circumstances if the nonparty witness consents or the compliance court finds exceptional circumstances. See Rule 45(f). Exceptional circumstances is an extremely difficult threshold to cross. Currently, this strict standard appears only four times in the civil rules. It is the showing that must be made routine, good faith operation of an electronic information system (Rule 37(e)). The Advisory Committee Note to new Rule 45(f) declares that it is expected to be truly rare for a compliance court to transfer a motion to the issuing court and, notwithstanding all conventional wisdom, that it should not be assumed that the issuing court is in a superior position to resolved subpoena-related motions. At the same time, the Note makes it clear that transfer may sometimes be warranted if, for example, the issues have previously been decided by the issuing court or are likely to arise in many districts. (Continued on page 31)
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24 Page 24 API PCCE Review Course The National Federation of Paralegal Associations (NFPA ) and the Advanced Paralegal Institute (API) are jointly offering the online review course for the Paralegal CORE Competency Exam (PCCE). The PCCE is targeted to paralegals who have recently graduated from a paralegal education or training program or are within their first two years of practice. The exam was launched in November of 2011 and focuses on those essential aspects of practice in which an entry level paralegal would be expected to be competent. Exam questions are based on information from course work in various paralegal programs and basic knowledge all paralegals should possess. The on line review course runs for seven weeks, plus a brief pre-course orientation to familiarize students with the web site and First Class used by API. API courses are taught through computer-mediated distance learning. Students may communicate with instructors or classmates around the clock from their home or office computer. The textbook for this course is the PCCE Study Manual. The review course will help paralegals prepare to take the PCCE by covering the two domains tested: Paralegal Practice and Substantive areas of law. Each unit will begin with a pre-test, which will allow students to assess their strengths and weaknesses in the area being studied. Readings will be assigned and discussion questions included in each unit, which will focus on problem areas revealed in the pre-test results as well as the new material introduced in the unit. At the end of each unit a post-test will be given, which will allow students to assess where additional independent study may be helpful. There is a required textbook for the course and an exit exam will be administered at the conclusion of the course. Each student will receive a score and an analysis of the students strengths and weaknesses. Start Dates: November 11, 2013 July 14 January 13, 2014 August 18 February 17 September 15 March 17 October 20 April 21 November 17 June 2 Click the boxes below for more information! (Continued on page 28)
25 Page 25 TESTATOR S ATTORNEY OWED DUTY OF CARE TO UNIDENTIFIED RELATIVES REFERENCE IN WILL (Continued from page 16) Eleven Angry Heirs Mary Linder, 78 years old, hired O'Bryan in 2005 to draft a new will and several other testamentary documents. Linder told the attorney that she had a list of items she wanted to leave to certain relatives. O'Bryan advised her that the bequests could be made on a separate form that Linder would need to sign and date. He then drafted into Linder's will a clause stating: I hereby give and bequeath each described item of cash or personalty set out on a certain list which I will from time to time update and keep with this Will. Said list will set out the name of the person and the item or items I bequeath to each such person... Any modifications I may choose to make to said list shall each be dated and initialed. O'Bryan then supplied the promised form, which Linder used to make a number of cash bequests ranging from $5,000 to $50,000. But although O'Bryan stayed in contact with Linder and continued to provide her with services in the ensuing years, he failed to inquire into the bequest form, which was never signed, dated or witnessed. Shortly after Linder's death in 2007, the personal representative of her estate located Linder's will, a codicil and the unexecuted bequest form. Those materials were delivered to O'Bryan, who filed the will and the codicil - but not the bequest form - with the probate court. "[T]he fact that [the attorney] may not have known their names when he drafted the will cannot insulate him from liability. " Judge Terry A. Crone According to the opinion, O'Bryan denied "ever seeing the filled-in form or even knowing whether Linder ever filled out the form at all." He informed the probate court of the list's existence sometime later and special counsel was appointed to investigate its validity. Linder's estate subsequently entered into a settlement agreement with her relatives providing that the bequest list was invalid and that $25,000 would be divided among the relatives. Eleven plaintiffs filed the present action against Q'Bryan in (Continued on page 29)
26 Page 26 About is published bi-monthly & is the official publication of the Northeast Indiana Paralegal Association. Subscriptions are free to members. The deadline for articles & advertising for the next issue is December10. Plug In & Get Involved! Gain marketable skills, help others, make friends & meet new people, build business contacts, increase professional satisfaction, stand out above the crowd. Get in the know. Contact to find out how and where you can serve. The Pen is Mightier than the Sword Been meaning to write more? You should. Hone your skills by contributing to the Paralegal Press today. Send your wildest ideas to
27 Page 27 Upcoming Conventions Save the Date 2014 Convention October 9-12 in Texas The Fairmont Dallas 2015 Convention October 6-12 in Hawaii Waikiki Beach Marriott, Honolulu 2016 Convention Vermont 2013 Award & Scholarship Winners Congratulations to the following individuals for the awards they received: William R. Robie Award: Debra Hindin-King, Rocky Mountain Paralegal Assocation Outstanding Local Leader: Vivian Luckiewicz, Philadelphia Association of Paralegals Paralegal of the Year: Asa Rubman, Department of the Navy, Washington State Paralegal Association Certification Ambassador of the Year: Michael Wallace, RP, New Haven County Association of Paralegals Association Pro Bono: Tampa Bay Paralegal Association Individual Pro Bono: Ginny Lee, Rocky Mountain Paralegal Association Thomson Reuters Scholarships: Luanne Anderson and Nataly Nguyen
28 Page 28 API PCCE Review Course (Continued from page 24) Additional courses may be added if sufficient interest is expressed. Tuition for the PCCE Review Course is $395. Please note there is no refund once the course begins. If you wish to withdraw or drop the class after it begins, you may take it again within one year at 1/2 the current tuition cost. Students who take the PCCE Review Course are not guaranteed to pass the PCCE or necessarily be eligible to take the PCCE. Students who have taken the PCCE Review Course and fail the PCCE may retake the Review Course for a second time, within a one year period, for 1/2 price of current tuition rate. Registration for this Review Course does not automatically register you to take the PCCE. You must submit a separate application to take the PCCE. PCCE Review Course Registration Form The PCCE Review Course is administered by API. If anyone has any questions, they can contact Renee Sova, the Director of the Advanced Paralegal Institute by phone at , via fax at or via at API PACE Review Course (Continued from page 15) for a fee of $ The PACE Review Course is administered by API. Registration for this Review Course does not automatically register you to take PACE. You must submit a separate application to take PACE. Read additional information about the PACE review course. If anyone has any questions, they can contact Renee Sova, the Director of the Advanced Paralegal Institute by phone at , via fax at or via at
29 Page 29 TESTATOR S ATTORNEY OWED DUTY OF CARE TO UNIDENTIFIED RELATIVES REFERENCE IN WILL (Continued from page 25) 'Actual Knowledge'? O'Bryan moved for summary judgment, asserting that he did not owe the plaintiffs a duty because "there is absolutely no evidence that [he] had actual knowledge that they were on the List or were intended beneficiaries of Ms. Linder or her Estate." The trial court granted the motion. On appeal the plaintiffs argued that a finding in their favor was compelled by the holding in Walker that a will beneficiary has standing to sue a drafting attorney if the beneficiary "is a known third party." The plaintiffs acknowledged that Walker did not address "what 'know' or 'known' means" because the plaintiff there was named in a will and thus clearly satisfied the "known" requirement. But the case controls despite that distinction, they added, because malpractice law does not require that the drafting attorneys have the actual names of the intended beneficiaries when they draft wills in order to be liable to persons who were intended to be beneficiaries. After all, Indiana probate law does not require that a will must include actual names of beneficiaries in order to make valid bequests to them in the first place. For example, the probate code explicitly sanctions drafters of wills to utilize words such as "heirs," "family," "next of kin," and "relatives" without having to know the specific names of the people within those classes. "[I]t thus cannot be a defense to a legal malpractice claim that a negligent attorney did not know the specific names of the intended beneficiaries of the client's will," the plaintiffs contended. No Insulation In reversing the lower court, the majority concluded that O'Bryan clearly assumed a duty of care to the plaintiffs. By drafting a will that expressly referenced the bequest form, Crone said, O'Bryan "knew that the third parties to be named on Linder's list would rely on his professional skill and judgment to reap any benefits under the will." Under these circumstances, he added, the fact that O'Bryan "may not have known their names when he drafted the will cannot insulate him from liability." (Continued on page 30)
30 Page 30 TESTATOR S ATTORNEY OWED DUTY OF CARE TO UNIDENTIFIED RELATIVES REFERENCE IN WILL (Continued from page 29) The majority also reasoned that public policy supported finding a duty of care in this case because failing to do so could "encourage even more egregious acts of malpractice, to the detriment of innocent third-party beneficiaries." If courts do not confer standing to nonclient beneficiaries under these facts, Crone said, no one else will be able to recover for a negligent attorney's missteps. Estates have little incentive to bring such claims because they generally are not harmed by an error that jeopardizes the rights of a third-party beneficiary, Crone explained, adding: "Unless the beneficiary can recover against the attorney, the social policy of preventing future harm is frustrated." Dissent: Unlimited Liability In his dissent, Friedlander turned the policy argument around. Several policy concerns, he argued, suggest that the "actual knowledge" exception announced in Walker should be confined to situations in which a beneficiary is "known and identified at the time the will is drafted." Friedlander pointed out that the plaintiffs here were not named in the will but instead were listed on a document created after the will's execution. "Linder could have added a potentially limitless number of unknown individuals to the list," he said, and under the majority's ruling this scenario exposes drafting attorneys "to precisely the type of unlimited liability the privity rule and exception set forth in Walker v. Lawson were designed to prevent." "Moreover," he said, "imposing a duty in favor of unidentified third parties would make it impossible for attorneys to identify potential conflicts of interest." Jon R. Pactor, Indianapolis, argued for the plaintiffs. Abigail L. Seif of Epstein Cohen Seif & Flora, Indianapolis, argued for O'Bryan. To contact the reporter on this story: Samson Habte in Washington at To contact the editor responsible for this story: Kirk Swanson at Reproduced with permission from ABA/BNA Lawyers' Manual on Professional Conduct, 29 Law. Man. Prof. Conduct 669 (Oct. 23, 2013) Copyright 2013 by the American Bar Association/The Bureau of National Affairs, Inc. ( ) <
31 Page 31 AMENDED OR CORRECTED Major Changes in Federal Subpoena Practice Gregory P. Joseph* (Continued from page 21) 7. Judges Are Urged To Consult. The Advisory Committee Note encourages the judge in the compliance court to consult with the judge in the issuing court... while addressing subpoena-related motions. This makes a great deal of sense, but it raises issues because the parties and the nonparty witness are not present for this conversation and their positions are not directly being heard by the issuing court judge, who may have substantial influence on the outcome. Consultation among judges is expressly permitted by the commentary to Canon 3A(4) of the Code of Conduct for United States Judges, and Rule 2.9(a)(3) of the ABA Model Code of Judicial Conduct, the latter making explicit the rather obvious requirement that the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter. While neither of these codes thus mandates it, it would be a welcome practice and alleviate a great deal of concern if the compliance court judge were to advise the parties and nonparty witness of any planned consultation with the issuing court judge and, after the fact, inform them as to the substance of the communication prior to deciding the motion. 8. On Transfer, Witness s Lawyer May Be Heard in Issuing Court. If the compliance court finds that exceptional circumstances exist and transfers the quashal motion to the issuing court, the lawyer for the nonparty witness is automatically admitted to the issuing court for the purposes of filing papers and appearing on the motion (see Rule 45(f)), obviating any requirement of obtaining local counsel and the associated expense. That, alone, however, does not relieve the nonparty witness of the cost of getting its counsel before the issuing court. 9. On Transfer, Telephonic Hearings Encouraged. Consequently, to address this expense issue and minimize the burden a transfer imposes on nonparties, the Advisory Committee Note urges that, [i]f the motion is transferred, judges are encouraged to permit telecommunications methods. 10. Contempt of Two Courts. Both the compliance court and, after transfer, the issuing court may hold in contempt a miscreant witness, under Rule 45(g). Under a related change to Rule 37(b) (1), if the issuing court orders compliance and the witness in the compliance jurisdiction is noncompliant, that may be treated as contempt of either court. The Advisory Committee Note to Rule 45(g) explains that disobedience constitutes contempt of both the court where compliance is required... and the court where the action is pending. (Continued on page 35)
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35 Page 35 AMENDED OR CORRECTED Major Changes in Federal Subpoena Practice Gregory P. Joseph* What Has Not Changed Parties & Officers Subject to Deposition without Subpoena. The limitations on subpoenaing parties and officers are relevant only to trial, not to deposition, testimony. The Advisory Committee Note contains the reminder that: Depositions of parties, and officers, directors, and managing agents of parties need not involve use of a subpoena. In light of the sanctions available under Rule 37, a party fails to appear or produce its senior personnel for deposition at its peril. Documents Received pursuant to Subpoena. Nothing in the new rule, just like nothing in the existing rule, obliges a party to make available to any other party the data it receives in response to a document subpoena. The only requirement is advance notice that a document subpoena is going to be served. See Rule 45(a)(4). That means that, upon receipt of a notice, it is incumbent on counsel for all other parties to make arrangements with the lawyer serving the subpoena to obtain access to everything produced. Failing that, serve a document request on that party or a carbon copy of the subpoena. Otherwise, you may never see anything favoring you that is produced because you can count on the fact that it won t appear in your adversary s exhibit list. Mr. Joseph is a past President of the American College of Trial Lawyers and past Chair of the Section of Litigation of the American Bar Association. He can be reached at Joseph Hage Aaronson LLC in New York and Reproduced with permission from Gregory P. Joseph Reproduced with permission from The United States Law Week, 82 U.S.L.W. 584 (Oct. 22, 2013). Copyright 2013 by The Bureau of National Affairs, Inc. ( ) <