Indiana Law Blog

No Privilege in Indiana for Unlicensed Social Workers

Published on: January 27, 2017 | by Michael R. Smith

Last July, the Indiana Court of Appeals decided Rogers v. State, 60 N.E.3d 256 (Ind. Ct. App. 2016), in which the attorney for a criminal defendant had deposed an employee of a charitable organization who held a degree in social work from an accredited university but not a license from the Behavioral Health and Human Services Licensing Board of the Indiana Professional Licensing Agency. The attorney for the organization advised the social worker not to answer certain questions on the grounds that the information was subject to the privilege for communications between a social worker and her client. The defendant filed a motion to compel the social worker to answer the questions, and the court denied the motion. The court gave the defendant permission to file an interlocutory appeal with the Indiana Court of Appeals, which reversed the trial court’s decision, holding that the privilege does not apply to unlicensed social workers. The State sought transfer to the Indiana Supreme Court, which held oral argument before denying transfer. Because transfer was denied, the decision of the Court of Appeals is now final.

Ind. Code 23-25.6-6-1 provides that, with some exceptions, a “counselor” cannot be compelled to disclose communications with a client. Counselor is defined by Ind. Code 25-23.6-1-3.8 as “a social worker, a clinical social worker, a marriage and family therapist, a mental health counselor, an addiction counselor, or a clinical addiction counselor who is licensed under this article.” The question put to the Court of Appeals was one of statutory interpretation: Does the phrase “who is licensed under this article” apply to all six professions in the list, or does it apply only to the last one, clinical addition counselors?

In arguing that the modifying phrase applied only to the last item in the list, the State relied in part on a canon of statutory construction (i.e., a rule a court sometimes uses as a guideline for interpreting statutes) called the doctrine of the last antecedent, which says that when a list of nouns is followed by a modifier, the modifier is presumed to apply only to the last one in the list (i.e., the “last antecedent”) unless there is a comma between the last item and the modifier. Because there is no comma between “clinical addiction counselor” and “who is licensed under this article,” the State argued, the phrase does not apply to “social worker.” Therefore, an unlicensed social worker is within the definition of “counselor;” and the privilege applies.

LLCs for Estate Planning and Keeping the Family Cabin in the Family

Published on: December 8, 2016 | by Michael R. Smith

It might come as a surprise to non-Hoosiers that several parts of Indiana are popular locations for vacation cabins. The best known are probably Brown County and the area around the Indiana Dunes. Other locales include Lake Maxinkuckee, Lake Monroe, and Lake Patoka; the Amish country and the smaller lakes of northern Indiana; the wooded hills in other parts of southern Indiana; and the small towns on the northern bank of the Ohio River. Saving the Family Cottage: A Guide to Succession Planning for your Cottage, Cabin, or Vacation Home, by Stuart J. Hollander, David S. Fry, and Rose Hollander, 4th ed., 2013, is an excellent resource for owners of family vacation homes or other property to be preserved for shared use by future generations. However, the principles are not restricted to leisure property. For example, owners of family farms will also find useful advice for keeping the farm in the family for generation after generation.

One of the central concepts of Saving the Family Cottage is to avoid problems of real property owned jointly by several individuals — a situation that, of course, can arise when property is passed from one generation to the next. When property has multiple owners, disagreements between them can result in the property being partitioned. For some types of property, such as undeveloped land, the partitioning may mean that the property is divided into multiple parcels, like cutting a pie into pieces, with each owner receiving a piece of the whole. In other cases, such as a vacation cottage, a dispute may result in the property being sold and the proceeds divided among the owners.

The authors’ primary solution to that problem — one that we and many estate planning attorneys heartily endorse — is to create a limited liability company to be owned by the family members and to transfer ownership of the property to the LLC. One reason is that transferring ownership of LLC interest from one person to another, unlike transferring ownership of real property, is generally not a matter of public record. A more compelling reason is that the law provides very few rules to govern the relationship between multiple owners of real property (or most personal property, for that matter) and very few mechanisms for resolving disputes that do not result in the termination of the joint ownership. In contrast, the flexibility of LLCs (which we have touted in this blog multiple times) permits the owners to decide in advance who will make decisions concerning the property and how they will be made and how disputes among heirs will be resolved while keeping the property in the family.

Family Businesses: Succession Planning for LLCs

Published on: June 2, 2014 | by Michael R. Smith

Owners of Indiana LLCs (and their lawyers) can learn some lessons from a recent case involving an Alabama LLC. The case is L.B. Whitfield, III Family LLC v. Virginia Ann Whitfield, et al.

The Whitfield Case

L.B. Whitfield, III owned half of the voting stock in a business that had been in his family for generations. The other half had belonged to L.B.’s brother, who died and left the stock to a trust for the benefit of his son.

Indiana Supreme Court Holds Police Interrogation Went Too Far

Published on: May 14, 2014 | by Michael R. Smith

Ordinarily, I leave this area of the law to the my partner, Susan Rayl, but today (well, yesterday by the time I’m writing this) the Indiana Supreme Court issued a decision, written by Justice Stephen David, that caught my attention. In Bond v. State, the Court held that the defendant’s confession was involuntary, and therefore inadmissible as evidence against him, because it was obtained through interrogation by a police officer who told the defendant, an African American from Gary, Indiana, that his race would prevent him from getting an impartial jury or a fair trial.

The officer’s interrogation strategy was to persuade the defendant that the police knew he was guilty and that the only way he could improve his situation was to confess. Over a period of three hours, the officer suggested that the defendant might be charged with a less serious crime if he confessed and told the defendant that a confession would allow him to see his children and talk to his mother. Then, about two hours into the interrogation, the officer told the defendant:

[d]on’t let twelve people who are from Schererville, Crown Point–white people, Hispanic people, other people that aren’t from Gary, from your part of the hood–judge you. Because they’re not gonna put people on there who are from your neck of the woods. You know that. They’re not gonna be the ones to decide what happens to you. You know that. I know that. Everybody knows that. All they’re gonna see is, oh, look at this, another young motherf***** who didn’t give a f***.

Positive Changes to Indiana LLC Law – Estate Planning

Published on: July 1, 2013 | by Michael R. Smith

Earlier this year the Indiana General Assembly passed House Enrolled Act 1394, which takes effect today, July 1, and makes several amendments to the Indiana LLC statute, officially known as the Indiana Business Flexibility Act. This is the first of two articles discussing those changes. This first article addresses some amendments that should enhance the use of LLCs for estate planning purposes, and the second will discuss changes that expressly address the use of officers in the management of limited liability companies.

Permissible Purposes for LLCs

With the new amendments, Section 6 of the Indiana Business Flexibility Act now explicitly states that LLCs may be used not only for business purposes but also for personal and nonprofit purposes. For an example of a personal purpose, a married couple who own a vacation cabin and want it to remain in the family after they are gone might place the cabin in a limited liability company and then, by gift, by will, or by other means, transfer the ownership of the LLC to their children or grandchildren. Because the cabin is not used to generate income, the purpose of the LLC is personal, not business.