The Indiana Supreme Court issued a number of orders in August, September and October amending the Indiana Rules of Court. The rule amendments will take effect on January 1, 2011 unless the courts order a different effective date. This article highlights the amendments that are of interest to courts, clerks and their staffs.
The full text of these and all of the other amendments adopted by the Court can be found at http://www.in.gov/judiciary/orders/rule-amendments/index.html
Professional Conduct Rule 7.1 through 7.5, governing attorney advertising, have been amended to bring the state’s rules more in line with the Model Rules of the American Bar Association (ABA). The most notable change is a requirement that an attorney may not directly solicit the victim or family of a person injured or killed in an accident or disaster within thirty days of the event. The commentary to the amendment notes: “This restriction is reasonably required by the sensitized state of the potential clients, who may be either injured or grieving over the loss of a family member, and the abuses that experience has shown exist in this type of solicitation.”
Admission and Discipline Rule 28 has been amended to provide for expanded mandatory judicial education. Every state level judicial officer, which does NOT include senior judges, city or town court judges, Marion County Small Claims Court judges and part-time Commissioners and Referees, must complete 15 hours (as opposed to the prior 12 hours) of approved courses each year and accumulate at least 54 hours (as opposed to the prior 36 hours) in each three year educational period. This amendment was a result of the judiciary’s ongoing strategic planning project.
As an additional part of the strategic planning project, Administrative Rule 3 has been amended to redistrict the judiciary from fourteen (14) districts into twenty-six (26) districts. The goal of this change is to facilitate closer cooperation among courts in proximity to each other.
Another change comes in new Administrative Rule 18, which requires courts within a county to consolidate all probation departments into one probation department, except that juvenile probation departments created prior to January 1, 2010 may continue. Under this rule counties must adopt a plan to unify or consolidate their probation departments. This amendment is aimed at reducing duplication of positions and expenses and increasing efficiencies in the delivery of probation services.
Various rules were amended to provide that the time begins to run for specified actions when a decision is noted in the Chronological Case Summary. Prior to these amendments, the events which triggered the running of various time limits were inconsistent, creating confusion and unnecessary litigation. This series of amendments make it clear that the CCS notation is the triggering event in most situations. One exception will be in the Criminal Rules, where the date of sentencing will trigger when filing a Notice of Appeal starts to run.
Creditors must file with the Notice of Claim an Affidavit of Debt under amendments to Trial Rule 9.2 and Small Claims Rule 2. The affidavit is required when a creditor is collecting a debt on a delinquent account. The rule amendments include a form to use for the affidavit. This affidavit is intended to provide the court and the defendant with sufficient information to understand the origin and subsequent transfer of the debt and the breakdown of the amount being sought: if and how much of the amount is late fees, interest, etc.
Also, an Amendment to Trial Rule 55 and Small Claims Rule 10 requires that creditors must file an affidavit of non-military status whenever a default judgment is sought. Such affidavit is required by the Service Members Civil Relief Act, 50 U.S.C. appx. § 521. The Affidavit of Debt mentioned above includes language that can be used for this purpose.
Small Claims Rule 8(C) has been amended to provide that a corporate entity, sole proprietorship, partnership, LLC, or LLP that authorizes a designated full-time employee to appear in small claims cases, not only accepts the binding nature of the employee’s acts, the liability of the entity for costs and assessments levied by a court but also waives any present or future claims in any forum for damages in excess of $1,500 arising from the facts alleged in the notice of claim.
Trial Rule 23 has been amended to provide for the distribution of residual funds in class action cases. If the class action settlement order does not result in the distribution of all settlement funds, and if the order does not otherwise distribute residual funds, then not less than 25% of the residual shall be distributed to the Indiana Bar Foundation to support activities of the Indiana Pro Bono Commission.
Criminal Rule 13 has been amended to clarify that a person appointed to serve as a special judge in a criminal case must accept jurisdiction unless disqualified pursuant to the Code of Judicial Conduct, ineligible for service, or excused by the Supreme Court.
Appellate Rule 18 and Trial Rule 62 have been amended to broaden appeal bonds. Under these amendments, in addition to a bond or irrevocable letter of credit, a court may now accept any other approved form of security.
Administrative Rule 5, concerning Senior Judges, has been amended to provide that senior judges may submit time without accumulating partial days and to clarify Court policy regarding senior judges who serve as ADR neutrals. Under the amended rule, if a senior judge has served as an ADR neutral within the previous year for a lawyer, lawyer’s firm, or party to the case, the senior judge must disclose that fact and recuse from the case, unless the parties agree on the record to his/her continued service.