The Indiana Supreme Court issued a number of noteworthy rule amendments that became effective January 1, 2008.
Rules of Trial Procedure
Trial Rule 4.11 was amended to permit electronically transmitted return receipts for establishing receipt of certified mail. This amendment brings the rule in line with the United States Post Office’s new electronic certified mail receipt system and should generate savings on certified mailings.
Trial Rules 26, 34 and 37 were amended to account for the growing area of discovery involving electronically stored or maintained information. These amendments provide procedures for the preservation and discovery of information kept in an electronic format. The rules were inspired by the new federal rules governing such discovery.
Of particular note is Trial Rule 26(B)(5)(b), which provides that a party that receives information through discovery that is privileged or protected as trial-preparation material must, upon request, return or destroy the material, or seek a determination from the court regarding the claimed privilege or protection from discovery.
Also of significance is Trial Rule 37(E), which provides:
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.
Trial Rules 72 and 55 were amended to clarify that clerks may not enter defaults or judgments by default. These changes make clear that defaults and judgments by default require judicial action.
Post-Conviction Remedies
Rule PC2 was re-written to clarify the rule. The amendment also sets forth jurisdiction of appeals by reference to Appellate Rules 4 and 5 and the sentence imposed as a result of the challenged conviction or sentence.
Jury Rules
Jury Rule 20 was amended to permit alternate jurors to submit witness questions for consideration by the court, and to participate in discussions of the case with other jurors during recesses pursuant to Jury Rule 20(a)(8).
Rules of Appellate Procedure
Appellate Rule 14(C) was added to permit interlocutory appeals of trial court orders granting or denying class action certification. Such appeals are discretionary with the Court of Appeals and do not require certification by the trial court.
Appellate Rule 22 was amended to provide a form of citation for county local court rules.
Appellate Rule 23(E) was added to require that all motions, petitions, briefs, appendices, acknowledgements, notices, responses, replies, appearances or case summaries filed with the Clerk of the Supreme and Appellate Courts must be signed by an attorney of record, pro se party or amicus.
Appellate Rule 43(D) was changed to add additional fonts that may be used in submitting appellate pleadings.
Appellate Rule 63 was amended to change the process by which Tax Court decisions are appealed. Motions to Correct Error are no longer used to seek rehearing in the Tax Court of a Tax Court final judgment or disposition. Instead, a Petition for Rehearing is the appropriate means for asking the Tax Court to rehear its own final judgment or disposition. As before, a Petition for Rehearing is not required to seek a Petition for Review. The amendments also increase the time for filing a brief in response to a Petition for Review from 20 days to 30 days, and require a section before the Argument section of the Brief entitled “Reasons for Granting [or Denying] Review”. This new section should concisely explain why review should or should not be granted.
Rules for Admission to the Bar and the Discipline of Attorneys
Rule 2 was amended to increase the annual registration fee from $105 to $115.
Rule 23 § 27 was amended to create Attorney Surrogates in Indiana. The attorney surrogate rule does not apply to lawyers who practice solely as an employee of another Lawyer, Fiduciary Entity or organization not engaged in the private practice of law. This new rule provides that when a lawyer covered by the rule has a physical or mental condition that significantly impairs the lawyer’s ability to practice law, has disappeared, or been disbarred, or suspended and has not complied with Rule 23 § 26, a designated attorney surrogate, or in the absence of a designation, a senior judge or other suitable member of the bar, may be appointed as attorney surrogate.
Under the new rule the lawyer’s annual registration form will require affected lawyers to designate an attorney surrogate or if practicing in a Fiduciary Entity to provide the name and address of the Fiduciary Entity.
The attorney surrogate’s role is to:
- take possession of and examine files and records and obtain information as matters which may require attention
- notify clients of the lawyer that it may be in their best interest to obtain replacement counsel
- apply for extensions of time pending employment of replacement counsel
- file notices, motions and pleadings where jurisdictional time limits are involved and replacement counsel has not been obtained
- give notice to other appropriate persons and entities of the surrogates appointment
- arrange for the surrender or delivery of clients’ papers or property
- take possession of trust accounts and take appropriate action with respect to such accounts
- deliver the file to the client, make referrals to replacement counsel, or accept representation at the request of the client.
The rule also provides that upon granting a verified petition for appointment of an attorney surrogate, statutes of limitation, deadlines, time limits or return dates are extended automatically for 120 days from the date of the filing of the petition, if it would otherwise expire on or after the date of filing of the petition and before the extended date.
Finally, absent intentional wrongdoing, the rule provides immunity from civil suit for damages for all actions and omissions of the attorney surrogate acting under the rule.
Rule 25 § VIII now provides that settlement agreements in judicial discipline cases become public when the Supreme Court accepts the agreement in whole or in part and issues an order or opinion resolving the case.
Rule 29 § 3 was amended to provide attorney-legislators with Continuing Legal Education credit during their service in the Indiana General Assembly.
Administrative Rules
Rule 1 and Rule 2 were each amended to require courts to submit their quarterly case status reports and fiscal reports in an electronic format.
Rule 5 was amended to provide that senior judges may not serve as an employee of a governmental entity or subdivision, except with Supreme Court permission. The previous language limiting this restriction to situations outside the judicial branch was removed.
Rule 17 was added and it provides a mechanism for the Supreme Court to issue orders to maintain the orderly administration of justice in emergencies brought about by natural disaster, civil upheaval, disease or other exigent circumstances.