Kba President J.D. Meyer and His Wife Megan and Their Children, Macy, Andrew, Anna Lee, Will and Molly

KBA PRESIDENT J.D. MEYER AND HIS WIFE MEGAN AND THEIR CHILDREN, MACY, ANDREW, ANNA LEE, WILL AND MOLLY

This issue of the Kentucky Bar Association’s VOL. 85, NO. 4 B&B-Bench & Bar was published in the month of July. COMMUNICATIONS & Contents PUBLICATIONS COMMITTEE 2 President’s Page James P. Dady, Chair, Bellevue By J.D. Meyer Paul Alley, Florence Elizabeth M. Bass, Gallatin, Tenn. 8 Q&A with J.D. Meyer Rhonda J. Blackburn, Pikeville By James P. Dady Jenn L. Brinkley, Pensacola, Fla. Features: Elder Law Frances E. Catron Cadle, Lexington Elizabeth A. Deener, Lexington 20 Evaluating the Enforceability of Arbitration Agreements Cathy W. Franck, Crestwood Under Recent Kentucky Caselaw-Authority and Signatory Capacity Lonita Baker Gaines, Louisville By Lisa E. Circeo and Hannah R. Jamison William R. Garmer, Lexington 24 Overprotected? A look at guardianship and the alternatives P. Franklin Heaberlin, Prestonsburg By Mary Ellis Patton Judith B. Hoge, Louisville Jessica R. C. Malloy, Louisville 28 The Silver Tsunami: Stories, Grey Areas, and Unique Solutions Eileen M. O'Brien, Lexington from Clients with Dementia Sandra J. Reeves, Corbin By Katie E. Finnell John Schaaf, Georgetown 32 Claims Against the Estate and Medicaid Estate Recovery: Gerald R. Toner, Louisville Personal Injury/Wrongful Death Settlements, Exclusions Sadhna True, Lexington and Legislative Hurdles Zachary M. Van Vactor, Louisville By Scott E. Collins Samuel W. Wardle, Louisville Michele M. Whittington, Frankfort 36 Disabled Kentuckians Denied Divorces? A Team Changes PUBLISHER the Law in Kentucky By Shari Polur and David A. Ehsan John D. Meyers Columns EDITOR 40 Young Lawyers Division James P. Dady By Megan Keane MANAGING EDITOR 42 Northern Kentucky University Salmon P. Chase College of Law

Megan L. Couch 44 University of Kentucky J. David Rosenberg College of Law

DESIGN & LAYOUT 46 Effective Legal Writing By Professor Sara Ochs Jesi L. Ebelhar 47 Law Practice Management The B&B - Bench & Bar (ISSN-1521-6497) By Amy D. Cubbage is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 48 Shop Talk KY 40601-1812. Periodicals Postag e paid at By Michael Losavio Frankfort, KY and additional mailing offices. 50 Lawyer Wellbeing All manuscripts for publication should be sent By Eric Y. Drogin to the Managing Editor. Permission is granted for reproduction with credit. Publication of Bar News any article or statement is not to be deemed an endorsement of the views expressed therein by 52 Practice in the Pandemic Report the Kentucky Bar Association. By Michael S. Fore

Subscription Price: $20 per year. Members 59 NextGen CM/ECF to Require Upgraded Accounts subscription is included in annual dues and is Departments not less than 50% for the lowest subscription price paid by subscribers. For more information, 60 Kentucky Bar Foundation call (502) 564-3795. 65 Kentucky Lawyer Assistance Program POSTMASTER 68 Continuing Legal Education Send address changes to: B&B - Bench & Bar Cover photo by Yager Studios 514 West Main Street 74 Who, What, When and Where Several inside graphics by Frankfort, KY 40601-1812 ©istockphoto.com/JesiEbelhar BENCH & BAR | 1 PRESIDENT'S PAGE

The Kentucky Bar Association is YOUR ASSOCIATION

BY J.D. MEYER, KBA PRESIDENT

t looks like we are finally coming out of the COVID- 19 Pandemic. The Kentucky Supreme Court has lifted Irestrictions on jury trials, court room protocols and courthouse operations. As I write this article, the Daviess Circuit Court just concluded its first jury trial in well over a year. Other courts are doing the same under the new normal, still taking precautions to avoid a spike in cases, as not all are vaccinated. Since the pandemic began, our resolve has been tested as a people. However, what I have seen is that people are resilient, especially the attorneys of the Commonwealth. I want to let each and every one of you know what an honor it is to serve you as the president of the Kentucky Bar Association (KBA). I am truly humbled at this opportunity and only hope to continue the great work that the KBA does and provides for its members.

I want to commend Tom Kerrick and Steve Smith for their service as presidents of the KBA during these most unprecedented times. Steve had to make a number of difficult decisions in the last few months of his presidency as the pandemic first began. The choice to close the Bar Center was difficult but certainly necessary to protect the health and welfare of our outstanding staff. The most difficult decision he made was to cancel the 2020 convention scheduled in Covington after months of hard work and preparation and what would have been one of our best conventions ever. Steve continued to provide excellent guidance as immediate past president as the KBA maneuvered the pandemic world.

Tom’s leadership as president through the pandemic has likewise been nothing but exemplary. Tom was given a bag of lemons to begin his presidency and he did nothing but make lemonade. The creation of the Lawyers Advocating Wellness initiative focused on the much-needed topic of attorney wellbeing. If we do not take care of ourselves, how can we effectively take care of our clients? Unquestionably, we work in one of the most demanding of all professions. Without that framework in place, the KBA would have not been able to so quickly respond to the rash of attorney suicides that occurred in late December and

2 | JULY/AUGUST 2021 Change of venue

Effective July 1, 2021, Lawyers Mutual has a new address.

New address, same Lawyers Mutual of Kentucky steadfast service. 10503 Timberwood Circle • Suite 213 Louisville, KY 40223 502-568-6100 502-568-6103 fax lmick.com PRESIDENT'S PAGE

early January. Tom, with assistance of Kentucky Lawyer Assistance KBA and provide the great programs and services as it always has. Program (KYLAP) Director Yvette Hourigan, the KYLAP and As referenced above, the COVID-19 Pandemic tested our resolve, the KBA staffs, quickly initiated a number of seminars and other but, it brought about a number of positive advancements in the opportunities to react to such tragic events. The KBA expanded the operation of the legal system. Most of these are in the technological counselling services offered to any member of the KBA through arena. Zoom has become a common term within our society. We KYLAP by removing the need to show financial hardship to qualify learned how to conduct Zoom motion hour, Zoom hearings, Zoom for the maximum of four sessions. While there are no statistics appellant arguments, Zoom depositions, Zoom mediation, Zoom on this, those programs helped to save someone’s life somewhere, conferences and even a few Zoom bench trials. The KBA even someway and somehow. conducted a virtual convention in May which proved successful in every way possible. Great speakers, fantastic topics and excellent Tom also organized the first virtual town hall meetings in each continuing legal education. All of this will help us to provide a more Supreme Court District. With the Kentucky Law Update programs economical and efficient service to our clients. throughout the state cancelled, it was important for all of you to know that the KBA was still here to help and assist you in any But we have to be careful. These advances in technology also lead way possible. These meetings provided a wonderful forum for the to an increased decline in personal contact and communication. KBA to advise you of the many programs, benefits, opportunities This affects the comradery that is a vital and crucial component and services that it has to offer you as a member. I plan to continue to an effective bar. With constant access to clients and work files, these virtual town hall meetings in the coming year as they provide it is easy to “log on” or “plug in” at night, on weekends, at home, a great benefit and forum for you to hear about the happenings at on vacation, at children’s games, even when out with your spouse, the KBA, but more importantly, to provide an opportunity for you family or friends. As attorneys we always take our work with us to voice what assistance that the KBA can provide to you. in our minds. All of this affects our wellbeing. The rule of law is as important as it ever has been. We must advance civility in the I cannot go any further in this article without commending the profession. We take great pride in being a Kentucky lawyer. The excellent staff at the KBA. Executive Director John Meyers and KBA continues to develop programs, including the Bar Leadership department heads Mary Beth Cutter, Jane Herrick, Melissa Black- Institute, to provide skills the lawyers of Kentucky need to diligently, well, Shannon Roberts, Michele Pogrotsky, Guion Johnstone and effectively and competently represent their clients. These were the Ms. Hourigan, as well as the other members of the staff (whose presidential themes of Tom Kerrick, Steve Smith, Doug Ballantine, names are all listed below) must be commended for their hard work Bill Garmer and Mike Sullivan. These concepts are as relevant today and dedication over the past 15 months. While the Bar Center as they were back then. closed, the work of the KBA did not. The staff worked remotely and continued to effectively and diligently direct the operations of the As a president, I hope to carry on the commitment of these distinguished and learned individuals to these themes with an emphasis on the need to provide support to attorneys in small town practices. In participating in the virtual town hall meetings, my message was KBA EMPLOYEES that the Kentucky Bar Association is your associa- EXECUTIVE BAR COUNSEL CLE tion. It is what you make of it. If you have a need or see something that can improve the profession, let DIRECTOR Angela Albright Sonja Blackburn me or one of the outstanding KBA staff members John Meyers Ashleigh Bailey Caroline Carter know. I can promise you that everything will be Alyssa Beck Mary Beth Cutter ACCOUNTING/ done within our power and under the legal con- Andre Bergeron Coleen Kilgore MEMBERSHIP fines of a mandatory bar association to solve your Kris Brower Terri Marksbury problem, address your perceived need, develop a Veda Aldridge Ashley Chilton Lori Reed program or otherwise ensure that you have all the Melissa Bourne Robbie Clements Clifford Timberlake Joe Cheek tools at your disposal to advocate for your client. Sarah Coker COMMUNICATIONS Brian Hilton Jay Garrett Lastly, I must thank my wife Megan for her dedi- Amber Lucas Megan Couch Mary Ellen Hardy cation, hard work and commitment to me and our Rita Payne Jesica Ebelhar Jane Herrick family through my time on the Board of Governors Machell Phillips Ema Haines Audra Morris and as I serve as president of the KBA. To our Michele Pogrotsky Audrey Stewart DISCIPLINARY CLERK kids, Andrew, Anna Lee, Molly, Macy and Will, I Cheryl Walker ADMINISTRATION Susan Greenwell appreciate all of your support. I must also thank my Cindy Wedding Melissa Blackwell father, Tom, and my mother, Ann, for always being KENTUCKY BAR Phyllis Newsome KYLAP there to support me in all my endeavors. And, most FOUNDATION/IOLTA of all, thank you for this opportunity to serve you. Shannon Roberts Ashley Cooper Guion Johnstone Yvette Hourigan Gwen Smallenburg

4 | JULY/AUGUST 2021 t e r m s e x p i r e o n t h e KBA BOARD OF GOVERNORS On June 30 of each year, terms expire for seven (7) of the fourteen (14) Bar Governors on the KBA Board of Governors. SCR 3.080 provides The current terms of the following that notice of the expiration of the terms of the Bar Governors shall be carried in the Bench & Bar. SCR 3.080 also provides that a Board Board Members expire on member may serve three consecutive two-year terms. Requirements June 30, 2022: for being nominated to run for the Board of Governors are contained 1st District – James A. Sigler, Paducah in Section 4 of the KBA By-Laws and the requirements include filing a nd written petition signed by not less than twenty (20) KBA members in 2 District – Matthew P. Cook, Bowling Green good standing who are residents of the candidate’s Supreme Court 3rd District – Douglas G. Benge, London District. Board policy provides that “No member of the Board of 4th District – Susan D. Phillips, Louisville Governors or Inquiry Commission, nor their respective firms, shall 5th District - Amelia M. Adams, Lexington represent an attorney in a discipline matter.” In addition, any member 6th District – Jennifer M. Gatherwright, Crescent Springs of the Bar who is considering seeking or plans to seek election to th the Board of Governors or to a position as an Officer of the KBA will, 7 District – William M. “Mitch” Hall, Jr., Ashland if elected, be required to sign a limited waiver of confidentiality regarding any private discipline he or she may have received.

Any such petition must be received by the KBA Executive Director at the Kentucky Bar Center in Frankfort prior to the close of business on the last business day in October. Please visit the KBA website at www.kybar.org/petition to obtain a petition.

MEMBERSHIP KBA Dues to DUES be Paid Online ***Renew Your Membership Now***

Kentucky Bar Association Membership Dues for 2021-2022 will be required to be paid online. Notifications by email were sent in mid-July. Members can pay quickly and conveniently, with a debit or credit card and by ACH. A username and password will be required to access the payment system. The ACH/E-check payment option is being offered For more information, to members at no additional charge. An administrative fee will be please contact the assessed on the credit and debit cards. The KBA membership cycle KBA Membership runs July 1-June 30 of each year. Payments are due on or before Department via email at September 1, 2021. After that date, an additional late fee payment [email protected]. of $50 will be assessed. A notice of delinquency will be mailed after October 15th with an additional cost of $50 if dues are still unpaid.

BENCH & BAR | 5 SWEARING IN

OWENSBORO ATTORNEY J.D. MEYER SWORN IN AS PRESIDENT OF THE

KENTUCKY BAR ASSOCIATION Photo By: Kelly Lee Flora Photography www.kellyleef lora.com wensboro attorney J.D. Meyer will serve as president of the Kentucky Bar Association O(KBA) for a one-year term which began on Thursday, July 1, 2021. Meyer took his oath of office during a ceremony held on June 30th in Bowling Green. The oath of office was administered by Kentucky Supreme Court Chief Justice John D. Minton Jr.

KBA Executive Director John Meyers remarked, “I am looking forward to working with J.D. over the next year. He has been a pleasure to work with on the Board of Governors, having served as a Bar Governor for six years and on the Executive Committee for the past three years. I have no doubt that he will represent the members of our association well and will be an excellent president for the attorneys of Kentucky.”

The KBA Board of Governors oversees the management of the KBA, an independent agency of the Kentucky Supreme Court. The board assists the Court in regulating the practice of law in Kentucky, including lawyer discipline and continuing legal education. Additionally, it works to promote the efficiency and improvement of the judicial system in accordance with Supreme Court Rules.

Meyer is an attorney practicing in Owensboro, Ky., with the law firm of Meyer and Meyer, LLP. He is a 1998 graduate of the University of Louisville Brandeis School of Law and a 1995 graduate of Indiana University.

Meyer served as a law clerk to the Honorable Joseph H. McKinley, Jr., Judge of the United States District Court for the Western District of Kentucky from 1998 to 2000.

Meyer is a past president and is a current board member of Lighthouse Recovery Services, Inc., a local recovery program in Owensboro. He also serves as an ex officio member of Audu- bon Area Community Services, Inc. Meyer is also a past board member of the Owensboro Health Foundation, Inc. He is married to Megan Meyer and has five children.

6 | JULY/AUGUST 2021 Welcome New KBA Bar Officers and Bar Governors

The Kentucky Bar Association President-Elect Amy D. Cubbage, Louisville, Vice-President W. Fletcher Shrock, Paducah; Board of Governors recently held Immediate Past President Thomas N. Kerrick, Bowling Green, and Young Lawyers Divi- their summer meeting and during sion Chair Megan P. Keane, Louisville, were sworn-in at the summer meeting. KBA the meeting the new officers and bar President J.D. Meyer took his oath of office during a special ceremony held in late June. governors took their oath of office. Bar Governors Van F. Sims, Paducah, 1st district; Susan Montalvo-Gesser, Owensboro, Terms for these bar governors and 2nd district; James M. Ridings, London, 3rd district; J. Tanner Watkins, Louisville, 4th officers began on July 1, 2021. district; Allison I. Connelly, Lexington, 5th district; Todd V. McMurtry, Ft. Mitchell, 6th district and Rhonda J. Blackburn Pikeville 7th district were sworn-in by KBA President J.D. Meyer on Friday, July 23, 2021. BAR OFFICERS

J.D. MEYER AMY D. CUBBAGE W. FLETCHER SHROCK THOMAS N. KERRICK MEGAN P. KEANE

BAR GOVERNORS

JAMES M. RIDINGS VAN F. SIMS SUSAN MONTALVO-GESSER

J. TANNER WATKINS ALLISON I. CONNELLY TODD V. MCMURTRY RHONDA J. BLACKBURN

BENCH & BAR | 7 Q&A WITH KBA PRESIDENT

WITH KBA PRESIDENT Q& J.D. MEYER The operation of the courtsA and the practice of law have been curtailed, The sad procession to put it mildly, by the COVID-19 pandemic. What is your assessment of lawyer suicides of how well the Kentucky legal system has weathered the storm? continues in Kentucky Q. andQ elsewhere,. and with it the necessary The Kentucky legal system has undoubtedly weathered the COVID-19 Pandemic well discussion of lawyer wellness. How will and kept the wheels of justice moving during the past 15 months. The court’s created the KBA address these issues during boats to use in this storm. The biggest development obviously was the increased use of your term? technology in the courtroom, especially in the area of virtual hearings. In the Virtual Town Hall meetings conducted by the KBA this spring, the unanimous question from I think that we need to keep doing what we attorneys is whether the courts will continue with virtual motion dockets post-pan- are doing. Yvette Hourigan and KYLAP demic. The KBA certainly encourages that as it is more efficient and a cost savings have been absolutely amazing in respond- to clients. I know the Supreme Court is considering that issue, but the decision may ing and raising awareness to this horrible ultimately be left up to each individual District or Circuit judge. But, we are not out issue. It is important to continue to talk of the storm just yet. While the restrictions have been lifted, the legal system still has about the suicide issue in the KBA publi- to determine how to deal with the backlog of criminal and civil jury trials currently cations and educational programming. We pending. There is no easy resolution as to how to handle that issue. But, as I mentioned all know that attorneys have the highest in my article, the resolve of Kentucky attorneys has never been stronger and we will suicide rate of any profession. We have find a way to address the issue to ensure justice is served and each person receives his to continue to develop programs to teach or her day in court. people how to address the pressures we face. I worry a lot about the next generation of attorneys from a financial standpoint as the Are there some stories you would care to share about how Kentucky massive student loan debt only adds to the judges, lawyers, and court personnel have adapted to the pandemic pressures of practicing law. The pandemic protocols, how they’ve carried on under adverse circumstances? Q. has only added to the pressures and issues. I do not personally know anyone who appeared in a hearing as a cat or other animal. The LAW Initiative and focus on attor- Personally, I was conducting a KBA Budget Committee meeting earlier this year when ney well-being are important too and the my screen froze up just as we were getting ready to take a vote to approve the budget. KBA will continue the promotion of that Turns out, a contractor working in downtown Owensboro hit an unmarked AT&T box program. We will continue to offer services which knocked out Internet service to our office for three days. Luckily, I texted my and programming on this issue. KYLAP friend Matt Cook and he jumped in and took the vote and finished the meeting. As I maintains a 24 hour hotline for those who mentioned in my president’s page article, we have been resilient during the pandemic. need assistance. The KBA also provides I think you just have to laugh at it all or it will drive you crazy. I had a couple of vir- free counseling to those who need them. tual injunction hearings and of course participated in numerous virtual motion hours. I want to make sure that every attorney I held depositions in a number of different ways throughout the pandemic. I know knows that these services are available and attorneys who held virtual bench trials. Like all attorney’s, I took the approach that there to help. Awareness is the key to all of you needed to listen to the opposing party and act so that everyone’s concerns are met this. There is no problem that we cannot in these situations. All in all, I think that judges, lawyers and court personnel respected handle, either as individuals or an associ- the concerns expressed and worked hard to adapt to the circumstances, ensure that ation. We are here to help and I hope that everyone’s concerns are met in each situation, and kept the wheels of justice turning. those struggling with thoughts of suicide know and understand that we are here to help.

8 | JULY/AUGUST 2021 You’re a legacy lawyer, one who practices with his father. Did you take an interest in the law as a child by observing what your father was doing? Was your interest in becoming a lawyer piqued by your father’s . practice? Did you know early that you wanted to be a lawyer? What are Q The KBA convention was the advantages and disadvantages of being in an intergenerational practice? cancelled last year and I can tell you without a doubt that the most rewarding aspect of my career has been to . was virtual-only this year. practice with my father. I could not ask for a better mentor to help me throughout my QCan you assess how the pandemic has career. Not a day goes by that I do not seek his counsel and advice. What is really cool, is affected the operations of the KBA? that as KBA President I get to recognize him as a Senior Counsellor this year as he has practice for more than 50 years. When I was sworn in as an attorney, he presented me to the Undoubtedly, we have the best staff of any Supreme Court which was really special. It is an honor to present that recognition to him. bar association in the country. John Meyers has done an outstanding job in guiding the I was certainly influenced at an early age by him as I would watch him and listen to him KBA ship in this storm. The KBA has not talk about the cases or business transactions he worked on at the time. My mom is an really missed a beat from an operational excellent cook and family dinners were important growing up so we would sit and talk standpoint. That is not to say that every- about things, including what happened in my dad’s day. I like to be able to help people thing stayed the same, because it obviously and to assist them in a time of need and knew from listening to him that is precisely the did not. As you mentioned, the 2020 con- role of an attorney. I remember in college I talked to him and told him I might want to do vention in Covington was cancelled. The something in business and run a company since most of the people I knew were business KBA cancelled its Kentucky Law Updates majors at Indiana. He said, “J.D., what do you think I do? I have partners, office staff, last fall. The Bar Center closed in March of expenses and run a business too in addition to practicing law.” Again, he was right as he 2020 and plans to reopen later this summer usually is. One thing that my dad did growing up was to expose me to circumstances in as we develop a re-opening plan for the his practice and he asked me what I thought. That helped to pique my interest in the law safety of the staff. However, the KBA had more than ever, especially when he would implement some of my suggestions. We do not a disaster plan in place. It was not intended really have many disagreement or challenges working together. All of that stems from the to be in effect for this length of time, but a fact that we have a great relationship with one another. Not to say there have not been plan existed. All members of the staff are disagreements, but those are few and far between. You asked about advantages and I will able to work remotely. They have contin- say that relationship is the biggest advantage of them all. I think initially one of the chal- ued to effectively perform their jobs so that lenges that I faced was that people thought he was going to just “hand over” his clients to the services provided to the KBA mem- me. I certainly do not want anything given to me in life so I worked hard to develop my bers never stopped. In fact, a number of own client base separate and apart from his. When I did do work for one of his clients, I them expanded. Mary Beth Cutter and the made sure to work extra hard so that I proved my value. We have been truly blessed and CLE department recorded various on-de- fortunate to have had some really good clients throughout both of our careers. Actually, mand programs to replace the suspended many of them are in the same situation as we are since they are intergenerational businesses. Kentucky Law Updates. Yvette Hourigan I think that is what makes it all so special. and the KYLAP responded quickly to put together a number of virtual seminars in response to the rash of attorney suicides. KBA presidents espouse themes for their terms of office? Melissa Blackwell and Shannon Roberts Is there a theme you plan to emphasize? advanced President Kerrick’s LAW initiative with various programs to encourage Q. I have thought about what theme or issue I would advance since being physical activity, meditation and other elected vice-president. In doing so, I looked at the themes or issues that the past presi- wellness topics. dents have advanced. What I came to realize is that the themes advanced by Tom Kerrick (attorney wellness), Steve Smith (the rule of law), Doug Ballantine (civility in the profession), Bill Garmer (KBA leadership institute) and Mike Sullivan (Kentucky lawyer) and the other presidents I have had the opportunity to work with during my tenure on Are there lessons the the Board of Governors are as relevant and important today as they were back then. legal profession in What I want to do is reiterate those themes during my year as president. I think that it Kentucky that can be is especially vital to continue the focus on attorney wellness with the LAW initiative that Q. carried forward as more Tom started. Civility is equally important. I am concerned that the technological advances or less normal life has resumed? of the pandemic could negatively impact how we treat one another as we practice cases, I am not sure that we will ever resume a which can be adversarial, emotional, and hard on our clients. However, I also want to normal life again. Your future is shaped promote a small town practice. Obviously, I am a small town practitioner in a small firm. by your past. But certainly we can carry I have thoroughly enjoyed practicing law in Owensboro. The practice has changed since I through with what we learned during the started in 2000. A lot of the attorneys who practice in the rural communities surrounding pandemic into the future. As I mentioned Owensboro have retired and no one has come in to take their place. This is concerning. before, I think the lessons of technological It will negatively affect those communities, not from just a legal standpoint, but also a advancement in the profession will carry community wide standpoint, both now and in the long run. The KBA has been working forward and help in providing more cost on a couple of things which will hopefully provide more assistance and support to those efficient legal services for clients. attorneys who practice in such places.

BENCH & BAR | 9 The Kentucky Bar Association is proud to announce the recipients of our Distinguished Awards 2021 Congratulations to these individuals!

Judge Kelly Easton is a class act. He runs his courtroom with respect and civility and is a consummate professional in every sense of the word. The lawyers of this Commonwealth have an outstanding example of professional conduct and civility in the courtroom. “ - KBA President Thomas N. Kerrick.

Judge Easton serves as a judge in the Hardin Circuit Court Division III. Judge Easton presides in the trial court of general jurisdiction and has previously served as chief judge in the circuit. Judge Easton also DISTINGUISHED JUDGE: currently serves as the chief regional administrative circuit judge for the Green River Region, which serves 21 counties. He has held this position since 2004. He is a member of the Hardin County JUDGE KELLY M. EASTON Bar Association where he served as past-president for two terms and served on the scholarship committee. He” is also a volunteer Judge Kelly M. Easton from Elizabethtown, presiding in drug court and mental health court programs and serves who currently serves as a Circuit Court Judge as chair-person of the Judicial Education Committee, and as a for the ninth judicial district, which covers member of the Judicial Legislative Committee of the Circuit Judges’ Hardin County, was selected by the Kentucky Association. Judge Easton has presented at multiple judicial college Bar Association’s Board of Governors to programs and is a judicial member of the Kentucky Corrections receive the 2021 Distinguished Judge Award. Commission. He received his undergraduate degree from the University of Kentucky in 1985 and his J.D. from the University of The Distinguished Judge Award is presented Kentucky J. David Rosenberg College of Law in 1988. He is currently to any judge who has distinguished himself or a participant in the master’s program at the National Judicial College herself through a contribution of outstanding and attended Oxford University as an English-Speaking Union Scholar service to the legal profession. The selection from Kentucky to the International Graduate Summer School during process places special emphasis upon community, the summer of 1985. Prior to his time on the bench, Judge Easton was civic and/or charitable service, which brings an associate and partner at Coleman, Easton, Lochmiller & Hall honor to the profession. in Elizabethtown, Ky.

10 | JULY/AUGUST 2021 Paducah attorney Richard L. Walter was selected to receive the 2021 Distinguished Lawyer Award. This award is presented to any lawyer who has distinguished himself or herself through a contribution of outstanding service to the legal profession. The selection process places special emphasis upon community, civic and/or charitable service, which brings honor to the profession.

President Kerrick commented, Rick is an exemplary member of the bar, having had a long and distinguished career as a trial lawyer, as well as a mediator/arbitrator. He provides tremendous service to our association, particularly in the western half of our state.

For “the past 40 years, Mr. Walter has represented corporate and insurance clients in all federal courts in Kentucky; before the Kentucky Court of Appeals, the Kentucky Supreme Court; the Sixth Circuit Court of Appeals; and in the vast majority of the state courts throughout Western Kentucky.

Throughout his career, Mr. Walter has concentrated on civil litigation, tort and insurance defense. Mr. Walter’s areas of practice include civil litigation and trial practice, medical malpractice, insurance law, products liability, DISTINGUISHED LAWYER: professional malpractice,” personal injury and automobile, construction litigation and mediation. Since 2000, he has been selected to serve as a RICHARD L. WALTER mediator and arbitrator, using his experience in litigation to help others settle or litigate their claims using alternate dispute resolution means.

He received his undergraduate degree from the University of Kentucky in 1977 and his J.D. in 1980 from the University of Kentucky J. David Rosenberg College of Law. He is a member of the Association of Defense Trial Attorneys, Kentucky Defense Counsel, as well as the McCracken County, Kentucky, Federal, and American Bar associations. He also serves as a general civil mediator for Kentucky Court of Justice Administrative Office of the Courts.

Judge Phillip R. Patton was awarded the Chief Justice’s Special Service Award by Supreme Court of Kentucky’s Chief Justice John D. Minton Jr.

Chief Justice Minton awarded Judge Patton with this honor in recognition of extraordinary dedication to the Commonwealth and the Kentucky Court of Justice through service as Circuit Judge for the 43rd Judicial Circuit and as an invaluable member of the Retired Judges Program. Judge Patton received his B.A. in political science 1968 and his M.A. in political science 1972 from the University of Kentucky. He went on to receive his J.D. in 1973 from the University of Kentucky J. David Rosenberg College of Law.

Judge Patton served as a circuit judge in the 43rd Circuit from 2001-2015 and currently serves in the Retired Judges Program, serving as a special judge in 27 counties presiding over child custody cases to capital murder. Prior to serving on the bench he was the Commonwealth’s Attorney for the 43rd Circuit from 1993-2001. He also worked in private practice and at the Legislative Research Commission.

He is a University of Kentucky Fellow and served on the University of Kentucky Board of Trustees for six years. He was named the Outstanding Commonwealth’s Attorney in 1996 and again in 2001. He was also awarded the Distinguished Jurist Award from the UK Law Alumni in 2010. Judge CHIEF JUSTICE’S SPECIAL Patton is a Life Fellow of the Kentucky Bar Foundation. SERVICE AWARD: Judge Patton enjoys playing guitar and singing, amateur theater, hiking, reading, and travel. He is married to his wife, Margie, and they have two JUDGE daughters and four grandchildren. They have been involved with his local animal shelter since its inception in 1991 and have fostered over 1,000 PHILLIP R. PATTON animals during that time. They also enjoy working outdoors and spending time with their grandchildren. BENCH & BAR | 11 Ms. Hourigan is the director of KYLAP. KYLAP provides confidential assistance to Kentucky law students, lawyers and judges with mental health issues and impairments, including depression, substance use disorders, process addictions and chronic anxiety. She graduated from Murray State University and the UK J. David Rosenberg College of Law and practiced personal injury law in Central Kentucky before being named KYLAP Director in 2011. Hourigan is a Certified Employee Assistance Professional and an Adult Peer Support Specialist. She is a member of the American Bar Association’s Commission on Lawyer Assistance Programs, chairperson of the ABA/COLAP Diversity, Equity & Inclusion Committee, and a member of the National Task Force on Lawyer Well-Being.

In choosing Ms. Hourigan for his special service award, President Kerrick remarked, It is safe to say that since taking over as director of KYLAP, Yvette has had a positive effect on more members of the KBA, and their families, than anyone else in our association.

In 2019 she was awarded the Kentucky Justice Association and Family “Safety Foundation’s Consumer Safety Award. This honor goes to an individual who is “an outspoken advocate for consumer rights or who has risked her own PRESIDENT'S SPECIAL well-being for the future health or safety of others.” In 2020 Hourigan was SERVICE AWARD: awarded the University of Kentucky Algernon Sydney Sullivan Medallion. She also received the Dave Nee Foundation’s “Uncommon Counselor” Award YVETTE HOURIGAN for her work in suicide prevention in the legal profession.” Lexington attorney Yvette Hourigan was selected Ms. Hourigan speaks nationally on many topics and KYLAP’s work in by KBA President Thomas N. Kerrick to receive lawyer mental health, well-being and suicide prevention has been the Kentucky Bar Association’s 2021 President’s featured on Legal View with Ashleigh Banfield, CNN, Bloomberg Law, Special Service Award, for her tireless and unmatched The Guardian, and in The Huffington Post. dedication to the profession by leading the Kentucky Lawyer Assistance Program (KYLAP) for over 10 years and especially over the past year, as she courageously led during the pandemic, assuring that programs and professionals were available to serve attorneys even when the world shut down.

R. Harvey Johnston, III, of Bowling Green has been selected as the 2021 recipient of the Bruce K. Davis award for meritorious service by the Kentucky Bar Association.

The Bruce K. Davis Bar Service Award is given to attorneys who take time from their practices to provide personal, professional and financial support to the Kentucky Bar Association. This award expresses the appreciation and respect for such dedicated professional service. All members of the association are eligible in any given year except for current officers and members of the Board of Governors.

Mr. Johnston is an attorney and partner in the firm of Reynolds Johnston Hinton, LLP, est. 1976, in Bowling Green, Ky. His practice focuses on real estate and commercial transactions. He is a member of the Bowling Green/Warren County, Kentucky Bar, and the American Bar associations. Harvey is a native of Louisville. He earned his Bachelor of Arts degree with an English major in 1969 from the Sewanee—University of the BRUCE K. DAVIS South and his Juris Doctor degree in 1972 from the University of BAR SERVICE AWARD: Louisville Brandeis School of Law. Following law school, he served in the United States Air Force from 1972 to 1976 in The Office of the Judge R. HARVEY Advocate General. He received an Honorable Discharge and was the 12 | JULY/AUGUSTrecipient of 2021 The Air Force Commendation Medal. JOHNSTON, III Tom (Fitz) has spent his career working to help the less fortunate by addressing the environmental issues and problems that they face more often than not and all citizens of Kentucky are fortunate to have such an advocate. - KBA President Thomas N. Kerrick.

Mr. FitzGerald has been director of the Kentucky Resources Council (KRC) since 1984. KRC “is a non-profit environmental advocacy organization providing free legal, strategic and policy assistance to individuals, organizations and communities concerning environmental quality and resource extraction issues. From 1973 through 1976, he lived part-time in Berea and staffed the Council of Southern Mountains bookstore. From1980 until 1984, he was a staff attorney and environmental specialist with the Appalachian Research and Defense Fund of Kentucky’s Lexington office. Fitz received his J.D. from the UK J. David Rosenberg College of Law in 1980 (Order of the Coif) and was a Reginald Heber” Smith Community Lawyer Fellow from 1980-1982. He is an alumni of Roger Williams College (now University), Bristol, DONATED LEGAL R.I., with a B.A. in American Studies with distinction.

SERVICES AWARD: Mr. FitzGerald has held numerous appointments in the past 30 years; a member of the Kentucky Forest Products Council, (1994-1999), the Governor’s Clean Air Act Task THOMAS J. Force, (1993-Present), the Ky*A*Syst Advisory Committee (1993-Present); Clean Air Act Small Business Technical Advisory Committee, (1995-1999); on the Task Force on Surface FITZGERALD Mine Bonding (1982-1984), the Task Force On Mining Primacy (1980-1982), the Task Force Louisville attorney Thomas J. FitzGerald was on Tar Sand Development (1982-1984); the Legislative Task Force on Waste Management selected to receive the 2021 Donated Legal (1988-1990), Board, Kentucky Center for Hazardous Waste Reduction, (1989-1994), Services Award. The Donated Legal Services member, Kentucky Coal Authority (1990-1992), the Solid Waste Reduction and Manage- Award is presented to a member in good ment Plan Advisory Committee, (1991-1994), the Container Deposit Task Force, (1998-1999), standing with the Kentucky Bar Association the Kentucky Environmental Education Council (2008-2012), the NRCS State Technical and currently involved in pro bono work. The Committee (1996- Present), Board, Kentucky Environmental Education Council (2008-2012), selection process places special emphasis on Board, Center for Renewable Energy Research and Environmental Stewardship (2009-2012). the nature of the legal services contributed Fitz has been an Adjunct Professor of Energy and Environmental Law at the University of and the amount of time involved in the Louisville Brandeis School of Law since 1986, and has published a number of articles. provision of free legal services. He received the Environmental Quality Commission Lifetime Achievement Award in 2002; the Henry R. Heyburn Public Service Award, UK College of Law in 2003, the Kentucky Nature Preserves Commission Biological Diversity Award in 2003, the inaugural Professional Achievement Award from the University of Kentucky College of Law Alumni Association in 2008, and the 14th Heinz Award in the Environment Category in 2008. He received the 2012 Brennan-Haly Award from the University of Louisville Department of Political Science, and the Dean’s Service Award from the Brandeis School of Law in 2015.

KBA President Tom Kerrick echoes the sentiments of KBF Executive Director Guion Johnstone who explained on her nomination form that Mr. Johnston, …doesn’t just talk the talk. He walks the walk. In fact, He currently serves on the Board of Commissioners of the Warren County Harvey has given back with his time, talent AND resources. Water District and served as chairman for Thanks to his contributions and leaderships, hundreds of 12 years. He has also served on the Board of Directors of the Bellewood Presbyterian thousands of dollars have been granted to law-related Home for Children in Anchorage, Ky., and nonprofits throughout Kentucky. as its chairman for six years. He received the Warren County Bar Association Public Service “ Award in 1997, and he was recognized as a “Distinguished Alumni” Harvey was instrumental in founding the Paralegal Studies in 2007 by the University of Louisville, Brandeis School of Law. program at Western Kentucky University (WKU) and served as In 2015, he received the Lawrence Grauman Award from an adjunct professor in real estate law at WKU for over 20 years. Brandeis School of Law. He currently serves on the Dean’s He currently serves on the WKU Real Estate Corporation Board Advisory Council at the law school. and on the College Heights Foundation Board of Directors. In 2015, Harvey was awarded the Distinguished Service Medal Mr. Johnston served on the Kentucky Bar Foundation Board Award from Western Kentucky University and was named an of Directors, its executive committee and served as its president honorary alumni by WKU. in 2017. He is also a Fellow of the American Bar Foundation. ” BENCH & BAR | 13 Deputy Chief Justice Lisabeth Tabor Hughes was unanimously selected as the recipient of the 2021 Thomas B. Spain Award. Deputy Chief Justice Hughes served as the Supreme Court Liaison to the Kentucky Bar Association CLE Commission from 2009 until 2011, and has been involved as a CLE presenter and planner for countless CLE events presented by the KBA, as well as other local, statewide, and national organizations. She is well-deserving of this recognition, and we thank her for her volunteerism and continued contributions to the betterment of the legal profession.

Deputy Chief Hughes was appointed to the Supreme Court in 2007 and then twice elected from the 4th Supreme Court District, Jefferson County. She has served almost 14 years on the Supreme Court, three years as a judge of the Kentucky Court of Appeals and almost eight years as judge of the Jefferson Circuit Court, Division 3.

Justice Hughes is chairwoman of the Civil Justice Reform Commission and in that role is spearheading the implementation of Business Court in Kentucky. She also chairs the Supreme Court's Civil Rules Committee and has been the Supreme Court representative on the Board of Trustees of the Kentucky IOLTA Fund since 2008. Justice Hughes is past president of the Louis D. Brandeis Inn of Court and continues to serve as a Master of the Inn. She is the former chair of the Alumni Council for the University of Louisville Louis D. Brandeis School of Law and served as a trustee THOMAS B. SPAIN AWARD: for the Kentucky Judicial Form Retirement System Board from 2000-2012. JUSTICE In 2019 Justice Hughes was recognized as the Kentucky Bar Association's Distinguished Judge and also received the Lawrence Grauman Award from the LISABETH T. HUGHES University of Louisville School of Law, the school's highest alumni award. She is a past Louisville Bar Association Judge of the Year, was recognized as the U of L The Justice Thomas B. Spain Award is presented Law Alumni Fellow in 2009 and received the Judge Benjamin Shobe Civility and annually by the Continuing Legal Education Professionalism Award from the Louisville Bar Association in 2018. She is also a (CLE) Commission for outstanding voluntary 2007 graduate of Leadership Louisville. After earning her bachelor's degree with contributions of time and talent to the planning, highest honors from the University of Louisville, Justice Hughes graduated magna organization, and implementation of KBA CLE cum laude from the University of Louisville Louis D. Brandeis School of Law, where programs, including Kentucky Law Update, she was named Outstanding Graduate of her law school class and served as Annual Convention, New Lawyer Program, and executive editor of the law review. Before serving as a judge, she practiced law in section programs. The recipient of the award Louisville for 15 years, concentrating on business and commercial litigation. exhibits exemplary contributions of time, talent, expertise, quality materials, and presentations A proud native of Princeton, Ky., Justice Hughes has been a Louisvillian for over for speakers, as well as frequency of participation 40 years and has three adult sons and one grandson. and overall professionalism.

Through the Nathaniel R. Harper Award, the KBA’s Young Lawyers Division (YLD) seeks to recognize those individuals or organizations that have demonstrated a commitment to changing the face of the Bar in Kentucky by promoting full and equal participation in the legal profession through the encour- agement and inclusion of women, minorities, persons with disabilities, members of the lesbian, gay, bisexual and transgendered community and/or other underrepresented groups. This year, Joseph P. Gutmann of Borden, Ind., was selected as the recipient of the Nathaniel R. Harper Award.

Kentucky attorney, Brandon C.R. Sword expressed, “Joe Gutmann has worked with the University of Louisville Brandeis School of Law as the Central High School Law and Government Magnet Coordinator focusing on inclusion to ensure all students have both the tools and a path for success in a legal career. He has also been recognized by the Louisville Bar Association’s Diversity Committee as a ‘Trailblazer’ for his leadership and dedication to students.”

Joseph P. Gutmann is a 1978 graduate of the University of Louisville and a 1981 graduate of Northern Kentucky University, Salmon P. Chase College of Law. For almost 20 years he was an Assistant Commonwealth’s Attorney for Jefferson County, Ky., handling approximately 2,000 felony cases. His cases included the United States Supreme Court Landmark Case of Batson v. Kentucky. He is a member of the Kentucky, Federal and Supreme Court Bar. In 2001 he changed careers to become a high school teacher at Central High School in Louisville. He has been the Law and Government Magnet Program Director, since 2001. During his career he has mentored numerous high school and college students who have become lawyers and professionals within the Criminal Justice system. He has been a part time faculty member at the University of Louisville since 1984, teaching in the Criminal Justice, Paralegal Studies and Political Science NATHANIEL R. HARPER AWARD: Departments. In 2010, he was named National “Street Law Educator of the Year.” He has been the recognized for his work at Central by the University of JOSEPH P. GUTMANN Louisville Brandeis School of Law and the Louisville Bar Association. 14 | JULY/AUGUST 2021 Christine L. Stanley a partner in the Lexington, Ky., office of Quintairos, Prieto, Wood & Boyer, P.A., (QPWB) was recently selected as the 2021 Outstanding Young Lawyer by the KBA’s Young Lawyers Division. This award is in recognition of, and appreciation for, a record of exceptional and dedicated civic service, community involvement, and legal accomplishment, all of which has brought honor to the young lawyers of Kentucky.

Current YLD Chair, Miranda D. Click commented, Christine L. Stanley has shown remarkable dedication to the Young Lawyers Division and the KBA during her time on the YLD Executive Committee. She approaches her goals (whether it be her career, KBA involvement, politics, or charity) with a cheerful heart and a desire “to make a difference. Her positive attitude and tenacity make her an Outstanding Young Lawyer.

Ms. Stanley focuses her practice in the areas of medical malpractice defense and the representation of nursing homes, assisted living facilities and hospitals, and includes general liability and appeals. OUTSTANDING YOUNG LAWYER: In addition, her practice encompasses the areas of regulatory and corporate compliance, fraud and abuse, state regulatory matters including certificate of need and licensing. CHRISTINE L. STANLEY

Prior to joining QPWB, Ms. Stanley worked extensively on matters involving health care She is licensed to practice law in the providers as a senior associate with a regional, long-term care focused defense law firm. She Commonwealth of Kentucky and is handled medical negligence claims, regulatory violations claims,” and Resident’s Rights viola- admitted in the U.S. District Court for tion claims. She has counseled regarding compliance, reimbursement matters, employment the Eastern and Western Districts of issues, preparation and review of provider contracts, and insurance risk and loss. Previously, Kentucky, the U.S. Court of Appeals for as Director of Risk Management and Compliance at Chrysalis House, Inc., she developed and the Sixth Circuit, and the United States implemented corporate and healthcare compliance programs. Ms. Stanley was a compliance Supreme Court. She is a member of the specialist liaison between Kentucky Spirit Health Plan and Kentucky Cabinet for Health and Kentucky Bar Association, National Bar Family Services, the state’s Medicaid managed care provider where she compiled submissions Association, Fayette County Bar Association, of approved statutory reports. Ms. Stanley received her Juris Doctor from the University of Central Kentucky American Inn of Court – Kentucky College of Law in May 2012 and Bachelor of Science in Technical Writing for Barrister, Defense Research Institute, and Science and Medicine from Carnegie Mellon University, Pittsburgh, Penn., in May 2008. Civil Justice Reform Commission.

Rikel Lightner is not only an exemplary YLD member, but she is also a nurse and a healthcare hero! During the pandemic, and along with her active legal cases with the DPA’s Stanton Office, Ms. Lightner volunteered as a nurse in a COVID-19 unit were 22 patients were assigned to her care. She saw a need in her community and volunteered to help despite the “considerable demands and unprecedented challenges faced by front line workers during the pandemic. We need more young lawyers like her. - YLD Chair Miranda Click Ms. Lightner graduated from Western New England School of Law in 2016 and moved to Kentucky in 2019 to join the Department of Public Advocacy. There she works with colleagues to advocate the rights of accused indigent defendants. Her cases ran the gamut from DUI to murder, and with the help of dedicated support staff, she prepares both misdemeanor and felony cases for SERVICE TO COMMUNITY: trial as either lead or co-counsel. Prior to law school, she received a master’s degree in health service administration; and a degree in the science of nursing. RIKEL LIGHTNER She’s had an expansive career in health care ranging from delivering bedside care to overseeing care delivery. Ms. Lightner still works consistently as The award, selected by the Young Lawyers Division, registered” nurse on a per diem basis at a local hospital. She commented that is in recognition and celebration of exemplary and she is, “extremely grateful for each opportunity sustained service to benefit his or her community. to help dignify, heal or restore a life.” BENCH & BAR | 15 SERVICE TO YOUNG LAWYERS: Lawyers Mutual of Kentucky (LMICK) was selected for the Service to Young Lawyers Award from the KBA’s Young Lawyers Division. This award is in recognition of, and appreciation for, exceptional contributions to the professional and personal advancement and mentorship of young lawyers.

YLD Chair Click commented, Lawyers Mutual of Kentucky has been sponsoring the Young Lawyers Division since 2009. Their generosity has enabled the YLD to offer a wide array of programing for its members and the community. Our partnership with LMICK goes beyond a financial sponsorship. They promote “and participate in our activities, helping us reach a wider audience. They provide wonderful service and support to young lawyers and are truly deserving of this award. Angela Logan Edwards and Nancy Meyers proudly accept the Service to Young Lawyers Award on behalf ANGELA EDWARDS of the policyholders, board of directors, and staff of Lawyers Mutual of Kentucky (LMICK). Lawyers Mutual of Kentucky is the only mutual professional liability insurance company for attorneys in Kentucky. For over 30 years, the company has stood by its service-oriented mission to support, strengthen, and protect Kentucky lawyers. Many aspects of practicing law have changed since March of 2020. However, the Board of Directors felt it was essential that Lawyers Mutual of Kentucky continue to provide unwavering support to the Kentucky Bar during the pandemic. LMICK has continued to support various bar associations, and the local legal aid chapters. Further, the company ” has continued to publish risk management pieces focused on the trends in the current legal landscape, provide relevant practice management education to its policyholders and non-policyholders alike, and increase its presence on social media to ensure access to information across all platforms. The company is grateful for the ongoing and loyal support of its policyholders which enables it to provide sustained support and guidance to the lawyers of the Commonwealth. This commitment is what makes LMICK more than just an insurance company. The board and staff love what they do and the service they provide. They thank the Young Lawyers Division for honoring LMICK with this award. NANCY MEYERS

The following Young Lawyers Division (YLD) Awards were chosen by YLD Chair Miranda D. Click for their service and dedication to the division.

OUTSTANDING EXECUTIVE COMMITTEE MEMBER SARAH MCKENNA OUTSTANDING DISTRICT REPRESENTATIVE KYLE R. BUNNELL OUTSTANDING COORDINATOR KELLY RIDINGS

16 | JULY/AUGUST 2021 LET THE TRIBUTES BEGIN! Congratulations to the 324 Kentucky Bar Association members who achieved Senior Counselor status! “Senior Counselor” status is bestowed annually upon members of the Bar who will celebrate their 75th birthday, or who have been admitted to the practice of law for 50 years, during the next fiscal year.

Many congratulations to the following members who achieved this distinguished status for 2021-2022!

Irvin Abell III Edmond Collett Edward L. Galloway Thomas Martin Jones Jerry E. Abramson Gary L. Colley Robert Dale Ganstine Anne Elizabeth Keating Sam W. Arnold III Philip Ray Combs Judith Boyers Gee Edward C. Keeton, Jr. Mark G. Arnzen Larry Elmer Conley Richard Alan Getty William S. Kendrick Robert Lawrence Astorino John Conlon James David Godsey Julian Emerson Kennamer George William Bailey, Jr. Kenneth Luke Connor Charles A. Goodman III Barbara Curtin Kenney Larry Allen Bailey John William Coomes II Richard Lanahan Goodman Daniel M. Kininmonth Robert Roland Baker Richard E. Cooper Teddy Bernard Gordon William David Kiser Gerald L. Baldwin Thomas E. Cooper Charles W. Granner III Maria Gorruso Klyza Carl J. Banks Linda Scholle Cowan Michael Alan Gribler Daniel Peter Knopf, Jr. Raymond Bernard Bannon John Reed Cox Hubert Priest Griffin Paul J. Krazeise, Jr. John McFerran Barr II Jesse Crenshaw Robert Withers Griffith John Joseph Kropp Gregory M. Bartlett Robert Scott Croswell III Mary Ann McHenry Guenther James R. Kruer Beth Angus Baumstark Richard Allen Cullison William C. Gullett David W. Lamar Gregory Gerald Beck Willis C. Cunnagin William Henry Haden, Jr. Eric Michael Lamb Roy J. Bell III Jack R. Cunningham Charles Anthony Hagan Glenn Alan Lansdell Charles Nicholson Benson, Jr. Michael Joseph Curtis William R. Hagan Patricia Lynn Larkin Randall Taft Bentley John Thomas Damron Sarah Criss Haines James David Lawson Stephen David Berger Brian Kevin Darling Marianne Halicks James Gary Lemaster Robert Wayne Best Michael W. Davidson Virginia Miller Hamm Paul Reid Lemasters Maxine E. Bizer Samuel Elias Davies Phillip Alvin Hamm Mary A. Lepper Joyce Ann Bonick Thomas Clark Dawson John Eugene Hancock Phillip Bruce Leslie Stephen Barnes Bonner Patricia Ann Day Christine Agnes Hansen James Russell Lesousky, Jr. Karen R. Bossmeyer James D. Decker William S. Harris David Michael Lewis Leslye Mercer Bowman Robert Rathbone Degolian Benjamin Robert Harter Thomas Wayne Little James E. Boyd Robert A. Donald III William Patrick Hauser Della M Wallen Littrell Bruce Scott Boyer William D. Donan Gary R. Haverstock Edwin A. Logan Robert Joseph Brand Diana Kay Chambers Douglas Michael Wesley Hawkins Robert G. Lowen Charles J. Brannen Sandra Elizabeth Downs Richard Dennis Heideman Thomas L. MacDonald Victor W. Brizendine III Richard Eugene Duerr, Jr. William E. Henderson, Jr. Ronald D. Major David F. Broderick Michael Devanney Eagen Myron Daniel Herndon Henry Douglas Mann Charles Willett Brooks, Jr. James Clifton Eaves, Jr. Stephen L. Hixson Michael L. Maple David C. Browder Todd Bailey Eberle Byron Lee Hobgood David B. Marshall Arthur Joseph Bryson Elizabeth Ann Tabor Eblen James T. Hodge Timothy Wayne Martin Jonathan D. Buckley Lloyd Ray Edens William Lacy Hoge III Jonathan A. Mason Francis Anthony Burke Garry Lynn Edmondson Allen W. Holbrook James Arthur Matre Jo Ann Burke Martha Ross Erwin Terry W. Holloway Peter McEachern Henry Burt C. David Ewing Coy Ellis Holstein, Jr. Joseph Andrew McGee Walter Robertson Butler Rhoda Grossberg Faller Todd S. Horstmeyer Michael J. McGraw Walter Robbins Byrne, Jr. Francis J. Faraci Harold Neil Houser Colleen McKinley Donald Howard Byrom Edward Lambert Farmer, Jr. Robert Lurton Houston III Charles Ray Meers Walton Logan Calvert Michael Joseph Farrell Mary Ann Hudepohl John M. Meisburg, Jr. Kevin Peter Carr Thomas L. Ferreri Joseph D. Hudson David Edward Melcher Christine Anglin Carter Joseph Leslie Fink III Richard Allen Hughes Joyce Bowling Menefee Rita Catherine Caufield David Michael Flannery Dennis Jay Hummel Donald E. Meyer Cathelyn M. Church Francis Larkin Fore James D. Ishmael, Jr. Thomas J. Meyer Robert D. Clark Ronald W. Fore Stephen Sivalls Johnson Fredric Earl Michels J. Gregg Clendenin James Michael Foster Gary C. Johnson Frank Edward Coggins George Edward Fowler, Jr. Robert Harvey Johnston III list continues on the next page Mitchell Stephen Cohen Bryce Dale Franklin Hancy Jones III BENCH & BAR | 17 Mathew L. Millen Kathleen B. Pellegrino Terry Keith Sellars Jane Illene Tudor Stephen H. Miller Richard E. Peyton Richard Allen Setterberg Stephen Edward Underwood Alfred L. Miller James Alvin Philpott, Jr. Gene Raymond Shaw David Vandeventer William Earl Mitchell Mark S. Pitt Joseph William Shea III Sandra Motte Varellas David Ralph Monohan Ronald C. Pitt Mark Simpson Elizabeth E. Vaughn Aubrey Ray Mooney Thomas Edward Portsmouth Steven Ray Smith David A. Velander Roy Leamon Moore William Edward Quisenberry, Jr. Neal Smith David G. Vest Charles D. Moore, Jr. Burrell Frank Radmacher III James Urey Smith III Judith Adams Villines Edward Patrick Moores Daniel Parker Randolph Sheryl Glenn Snyder Paul F. Vissman McKinnley Morgan David B. Ratterman G. David Sparks James Reagan Wagoner Marsha Kay Morris Ivan Hugh Rich, Jr. Nelson Theodore Sparks Pamela Johnson Walker Donald William Mossman II Lee David Richardson R Frank Stainback Reuben G Walker, Jr. Stephen Michael Mountjoy Stephen Lawrence Richey Phil A. Stalnaker Robert McDowell Watt III Vincent Chester Nealey Roger Donald Riggs Irene C. Steen Leonard A. Weakley, Jr. Justin Marshall Nicholson Thomas Sherman Riggs Raymond David Stengel Charles Donald Wells Patricia H. Nitchie James O. Risch John W. Stevenson Alfred John Welsh William M. Nixon Nancy Oliver Roberts Michael Deane Stewart Scott Thomas Wendelsdorf Vicki Jo Knight Nordmann Gerald V. Roberts Anne M. Stith Linda J. West David J. Obradovich William Lawrence Roberts Beverly Ruth Storm David Milton Whalin Stephen M. O'Brien Jack Mark Robinson David Thomas Stosberg Woody Stephen Wilborn Edward Oddo, Jr. Phyllis L. Robinson Robert James Straus Dennis Keith Wilcutt Dennis Olgin J. James Rogan Donna Rae Strong Charles Dowling Williams Richard B. Olver Margaret Mary Rolfes Brian Godfrey Sullivan Kenneth Williams, Jr. Jill K. Osborne Martha Weakley Rush John M. Sykes III Raymond T. Wise, Jr. Ross Collins Owens III Joyce Mae Russell James Tardio Mark Harris Woloshin Addison Melvin Parker James Stephen Sanders Taylor Rankin Terry, Jr. Catesby Woodford Howard Cobb Parker Ridley M. Sandidge, Jr. James D. Thesing Francis E. Worland, Jr. Homer Joseph Parrent John Marshall Schardein Harold Wayne Thomas Mary Tohill Yeiser Charles David Patrick John Stewart Schneider Richard Potter Thomas Jeffrey J. Yost Phillip Roger Patton Lee A. Schulz Thomas R. Thomas Barbara Jean Young Jerry Oliver Payne Robert H. Scott Susan Shimp Torok Ann Lawrence Zimmer Patricia Vecchione Peery Thomas Linton Self Walter Michael Troop

18 | JULY/AUGUST 2021 THANK YOU TO OUR SPONSORS. We truly appreciate their support with this year's first virtual annual convention.

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MEYER & MEYER, LLP SUSTAINER SPONSORS American College of Trial Lawyers TODD V. MCMURTRY, Department of Public Advocacy HEMMER DEFRANK WESSELS, PLLC KBA Bankruptcy Law Section KBA Civil Litigation Section CORPORATE SPONSORS KBA Health Care Law Section Kentucky Bar Foundation/Kentucky IOLTA Fund Kentucky Department of Agriculture Kentucky Lawyer Assistance Program Office of the Kentucky Secretary of State Supreme Court of Kentucky Vorys, Sater, Seymour and Pease LLP

BENCH & BAR | 19 features: ELDER LAW

Evaluating the Enforceability of Arbitration Agreements Under Recent Kentucky Caselaw AUTHORITY AND SIGNATORY CAPACITY

BY LISA E. CIRCEO AND HANNAH R. JAMISON

ost practitioners will likely evaluate the enforceability of an AUTHORITY: arbitration agreement at some point in their career. Arbi- Did the signee have legal authority to bind Mtration agreements are used in various settings, but one of the resident to the arbitration agreement? the more frequent places they are used is in nursing homes. In the Most arbitration agreement cases in Kentucky focus on the issue of past, many nursing homes required residents to sign pre-dispute authority. In nursing home cases, the question often boils down to arbitration agreements that waived the resident’s constitutional whether a power of attorney (“POA”) is broad enough to encompass right to trial by jury as a condition of admission. Although arbitration authority to sign the agreement. The Kentucky appellate cases on agreements can no longer be required for admission,1 nursing homes this issue are far too numerous to include in this article, but the still attempt to have the resident or a family member sign one as major Kentucky Supreme Court decisions (and one related U.S. part of the admissions paperwork. Often the resident or family Supreme Court decision) from the last 10 years are discussed below. member does not even realize they are signing such an agreement. PING V. BEVERLY ENTERPRISES, INC., When evaluating the enforceability of an arbitration agreement, 376 S.W.3D 581. (KY. 2012) there are a myriad of potential considerations and arguments. This In Ping, the Kentucky Supreme Court held a POA for health care article will focus on two frequently-encountered issues when an and finances is not broad enough to encompass the authority to sign arbitration agreement is signed by someone other than the resident: a voluntary, pre-dispute arbitration agreement, because the decision authority and signatory capacity. Although this article highlights 2 to sign such an agreement is not a health care or financial decision. arbitration agreements in the nursing home setting, the principles discussed herein apply generally to all types of contracts and arbi- EXTENDICARE HOMES, INC. V. WHISMAN, tration agreements. 478 S.W.3D 306 (KY. 2015) The Kentucky Supreme Court in Whisman examined provisions in various POAs. It found that while many of these provisions do not

20 | JULY/AUGUST 2021 ceedings therefor)” does not encompass the authority to sign an arbitration agreement.5 • The power to “make, execute and deliver deeds, re- leases, conveyances and contracts of every nature in relation to both real and personal property” does not encompass the authority to sign an arbitration agreement because a pre-dispute arbitration agreement is not a contract made “in relation’ to a property claim.”6

In contrast, the Court assessed a POA that contained two phrases granting powers to (1) “transact, handle, and dispose of all matters affecting me and/or my estate in any possible way” and (2) “generally to do and perform for me in my name all that I might if present.” The Court found these two phrases together were broad enough to encompass the authority to sign a pre-dispute arbitration agreement.7 However, the Whisman Court reaffirmed Ping and well-settled Kentucky law that a POA “must be strictly construed.”8 The Court also reaffirmed that “an agent’s authority under a [POA] is to be construed with reference to the types of transaction expressly authorized in the document” and that “general expressions used in authorizing an agent are limited in application to acts done in connection with the act or business to which the authority primarily relates.”9

It appears the pivotal point of this holding was the extremely broad and unusual phrase to “transact, handle, and dispose of all matters affecting me and/or my estate in any possible way,” as the second phrase is similar to the language in Ping which did not provide authority to enter into such an agreement. The Court inWhisman ultimately held that although this language was broad enough to encompass the authority to sign an arbitration agreement, application of the ill-fated “clear-statement rule” invalidated the purported agreement.10 Some of the defendants filed a petition for writ of certiorari to the United States Supreme Court, which was granted, encompass the authority to sign an arbitration agreement, at least resulting in the U.S. Supreme Court case discussed below.11 one pair of provisions would encompass such authority: KINDRED NURSING CENTERS LTD. PARTNERSHIP • The power “to draw, make and sign any and all checks, V. CLARK, 137 S.CT. 1421 (2017) contracts, notes, mortgages, agreements, or any other document including state and Federal tax returns” The U.S. Supreme Court granted the writ and held the clear-state- does not encompass the authority to sign an arbitra- ment rule violated the Federal Arbitration Act. Importantly, tion agreement because such a provision “self-evi- however, the U.S. Supreme Court did not reverse the Kentucky dent[ly] . . . relates to the conduct of . . . financial Supreme Court’s interpretations of the POA language cited above. and banking affairs, and not to the vindication of un- To the contrary, the U.S. Supreme Court stated if the Kentucky anticipated causes of action that might arise in the Supreme Court’s interpretation of the POA language was “wholly future.”3 independent of the court’s clear-statement rule, then nothing we have said disturbs it.”12 The U.S. Supreme Court remanded the • The power “to institute or defend suits concerning my case back to the Kentucky Supreme Court to “determine whether property or rights” does not encompass the authority it adhere[d], in the absence of its clear-statement rule” to its prior to sign an arbitration agreement because the act of reading of the POA language.13 signing an arbitration agreement does not amount to instituting or defending a suit.4 KINDRED NURSING CENTERS LTD. PARTNERSHIP V. WELLNER, 533 S.W.3D 189 (KY. 2017) • The power to “demand, sue for, collect, recover and receive all debts, monies, interest and demands what- On remand, the Kentucky Supreme Court confirmed that its inter- soever now due or that may hereafter be or become pretation of the POA language in Whisman was not tainted by the due to me (including the right to institute legal pro- clear-statement rule. The nursing home defendants filed a second petition for writ of certiorari, which was denied.14 Accordingly,

BENCH & BAR | 21 features: ELDER LAW

although the clear-statement rule was struck down by the U.S. that a full guardian has authority to bind a resident to a pre-dis- Supreme Court, the Kentucky Supreme Court’s interpretation of pute arbitration agreement, but the opinion is not yet final, as the the POA language in Whisman is still controlling law. Supreme Court recently granted a motion for discretionary review.17 LP LOUISVILLE EAST, LLC V. PATTON, SIGNATORY CAPACITY: 621 S.W.3D 386 (KY. 2020) In what capacity was the signee acting? Patton is the most recent Kentucky Supreme Court case on this Even if the signee had authority to bind the resident to arbitration, issue. The Court held that a POA provision granting the agent “all that does not mean the signee necessarily signed the agreement in powers as are necessary . . . to provide for my support, maintenance, that representative capacity. Two recent Court of Appeals cases [and] health” encompasses the authority to sign an arbitration highlight this issue. agreement if the agreement is required to be signed as a condition of the resident’s admission. Relying heavily on Ping, the Court’s PROVIDENCE HEALTHCARE OF PINE MEADOWS, decision turned on the fact that the agreement was mandatory, and LLC V. ROARK, 2020 WL 7086083 (KY. APP. 2020) thus “necessary,” for the principal to receive healthcare services from In Roark, upon the resident’s admission to a nursing home, the resi- the nursing home. The Court declined to address whether other dent’s son and POA, Keith Roark, signed an arbitration agreement. provisions of the POA would encompass such authority. On the line to indicate the capacity in which he was signing, he wrote “Keith Roark.” He did not indicate anywhere on the agree- GUARDIANSHIP CASES ment that he was signing as POA. The Court of Appeals held “the The Kentucky Court of Appeals has held a limited guardian does omission of Keith’s capacity as POA on the relevant signature lines not have authority to bind a resident to an arbitration agreement.15 means that he acted as ‘Keith Roark’ and not Edd’s POA in signing The question of whether a full guardian has that authority is still up the agreement.”18 Because Keith Roark, in his capacity as Keith in the air. The Kentucky Court of Appeals answered that question Roark, lacked authority to bind his father to arbitration, the Court in the affirmative in 2014,16 but the Supreme Court granted discre- held no valid arbitration agreement existed under Kentucky contract tionary review, and the parties settled their disputes before the Court law. Notably, the Court also indicated the “general public policy could issue a ruling. The Court of Appeals recently held once again [favoring arbitration] does not overcome the requirement under Kentucky contract law that an agent must denote his representative capacity to bind the principal to a contract.”19

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22 | JULY/AUGUST 2021 CAMBRIDGE PLACE GROUP, LLC V. MUNDY, 617 S.W.3D 838, (KY. APP. 2021) Similarly, in Mundy, upon her husband’s admission to a nursing home, Victoria Mundy, who was her husband’s POA, signed an arbitration agreement. On the line to indicate the capacity in which she was signing, Ms. Mundy wrote “wife.”20 Ms. Mundy did not indicate anywhere on the agreement that she was signing as POA. As in Roark, the Court of Appeals held that Ms. Mundy lacked authority to bind her husband to the agreement in her capacity as “wife,” and thus the defendants could not establish the existence of a valid agreement to arbitrate.21 CONCLUSION This area of law is very fact-specific, complex, and ever changing. There are a potentially infinite number of arguments or topics to examine when determining the enforceability of an arbitration ABOUT THE AUTHORS agreement, and the issues and cases discussed in this article are LISA E. CIRCEO only the tip of the iceberg. However, because authority and signa- is the principal of Circeo Law Firm, PSC. She tory capacity are two frequent arguments that arise, hopefully this practices primarily in the areas of nursing home negligence, article will provide a good starting point for practitioners faced wrongful death, products liability, and negligent security. Her with evaluating such an agreement. clients have been awarded millions of dollars in settlements and verdicts, including the largest verdict awarded to a victim ENDNOTES of nursing home abuse and neglect in the Commonwealth of 1 42 C.F.R. 483.70(n). Kentucky. In 2019, she received the Peter Perlman Outstanding 2 Notably Ping, the POA included broad and general language such as Trial Lawyer Award from the Kentucky Justice Association. “full and general power and authority to act on my behalf ” and stated She obtained her J.D. and B.A. from the University of Mis- the “enumeration of specific items, rights, or acts or powers herein is not sissippi. She is licensed in Kentucky, Tennessee, Mississippi, intended to, nor does it limit or restrict, the general and full power herein granted to my said attorney-in-fact.” Id. at 587. However, the Court found Georgia, West Virginia, Pennsylvania, and Missouri. this broad and general language did not provide authority to sign the HANNAH R. JAMISON agreement. Citing to the Restatement (Second) of Agency, the Court noted is an attorney at Circeo Law Firm, “general expressions used in authorizing an agent are limited in application PSC. Her practice focuses primarily on nursing home negli- to acts done in connection with the act or business to which the authority primarily relates,” and “the specific authorization of particular acts tends to gence and wrongful death cases. Hannah has litigated hundreds show that a more general authority is not intended.” Id. at 592. The Court of cases across the Commonwealth of Kentucky, resulting in held if the broad language was understood as a grant of universal authority, millions of dollars in settlements for her clients. She has been “the general expressions would tend to render the specific financial and selected as a Kentucky Super Lawyers Rising Star each year health-care provisions superfluous, contrary to the fundamental rule that a written agreement generally will be construed ‘as a whole, giving effect to all since 2018. She received her J.D. from the University of Ken- parts and every word if possible.’” Id. tucky J. David Rosenberg College of Law and received her B.A. 3 Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 324-25 (Ky. 2015). from the University of Virginia. 4 Id. at 323. 5 Id. at 325. 6 Id. at 326. 7 Id. at 327. 12 Clark, 137 S.Ct. at 1429. 8 Id. at 322. 13 Id. 9 Id. at 324. 14 Kindred Nursing Centers Ltd. Partnership v. Wellner, 139 S.Ct. 319 (2018). 10 Id. The clear-statement rule required an explicit statement in a power of 15 HQM of Pikeville, LLC v. Collins, 2014 WL 3537039 (Ky. App. 2014). attorney that the agent has authority to waive the principal’s constitutional 16 LP Pikeville, LLC d/b/a Signature Healthcare of Pikeville v. Wright, 2013- right to access the courts and to a jury trial. CA-000959 (Ky. App. 2014). 11 The Whisman case was a consolidation of three trial court cases: Extendicare 17 Legacy Health Services, Inc. v. Jackson, --- S.W.3d ---, 2021 WL 137772 Homes, Inc. d/b/a Shady Lawn Nursing Home, et al. v. Whisman, Trigg Circuit (Ky. App. 2021). Court, Case No. 12-CI-00100 (the “Extendicare case”), Kindred Nursing 18 Providence Healthcare of Pine Meadows, LLC v. Roark, 2020 WL 7086083 Centers Ltd. Partnership d/b/a Winchester Centre for Health and Rehabilita- at *3. tion, et al. v. Clark, Clark Circuit Court, Case No. 10-CI-00469 (the “Clark 19 Id. Kindred case”), and Kindred Nursing Centers Ltd. Partnership d/b/a Win- 20 Mundy, 617 S.W.3d 617, at 839. chester Centre for Health and Rehabilitation, et al. v. Wellner, Clark Circuit 21 Id. The recent Roark and Mundy cases are consistent with the Kentucky Court, Case No. 10-CI-472 (the “Wellner Kindred case”). The defendants Court of Appeals’s prior holding in Kindred Nursing Centers Ltd. Partnership in the Extendicare case did not join in the petition for writ of certiorari v. Butler, 2014 WL 3722083 (Ky. App. 2014) and other cases emphasizing filed by the defendants in the Clark Kindred case and the Wellner Kindred the importance of indicating one’s capacity when signing a contract. Kenne- case. Accordingly, the name of the case in the U.S. Supreme Court changed dy v. Joy Manufacturing Co., 707 S.W.2d 362 (Ky. App. 1986); Enzweiler v. to remove reference to the Extendicare case, as that case was not before the Peoples Deposit Bank of Burlington, 742 S.W.2d 569 (Ky. App. 1987). Court.

BENCH & BAR | 23 features: ELDER LAW Overprotected? A Look at Guardianship and the Alternatives BY MARY ELLIS PATTON

uardianship typically has not been a topic that inspires Framing Britney Spears3 is a New York Times documentary that movies, television shows, or interest from the general public. shows how the popstar went from small-town girl to paparazzi-bait GMany people, including other attorneys, may have a general to a (seemingly) broken-down woman in need of conservatorship. idea of what guardianship is, but do not understand the delicate, The documentary also highlights the #FreeBritney movement, complex process. However, recent movies, documentaries, and social which is a group who believes Britney Spears is being unnecessar- media campaigns have brought guardianship and conservatorship ily subjected to conservatorship. to the public eye. What is guardianship? Guardianship is the process by which a In the Golden Globe-winning movie, I Care a Lot1, actress Rosa- person is determined to be disabled and unable to care for them- mund Pike portrays a professional guardian who swoops in and selves; address their health care needs; and/or manage their finances. takes over the lives of older individuals. She pays off doctors to As guardianship laws are different in every state, so are the terms say the elderly person is incompetent and then places them in a used to describe the official relationship. For purposes of this article, locked facility. After being frustratingly locked up against their the Kentucky statutory terms will be used. Guardianship describes will and heavily medicated, the now-wards appear to be in need of the oversight of a disabled individual’s personal affairs and health guardianship. The professional guardian then collects their assets care by the guardian. Conservatorship describes the oversight of a and lives a lavish lifestyle. I Care a Lot is not based on a true story, disabled individual’s financial and legal affairs. Often guardianship but the writer was inspired by true-life events.2 and conservatorship are collectively referred to as “guardianship.”

24 | JULY/AUGUST 2021 (Other states use terms such as guardian of the person, guardian of Kentucky has built-in safeguards to prevent the predatory practices the estate, conservator of the person, conservator of the estate, cura- seen in I Care a Lot. Kentucky statutes require the appointment tor, and more.) The respondent or prospective ward is the person of an attorney to represent the respondent if an attorney has not alleged to need a guardian or conservator. entered an appearance on behalf of the respondent.11 Additionally, the interdisciplinary report is composed of three professionals. These Persons under guardianship and conservatorship are typically the safeguards make it much more difficult for a corrupt guardian to elderly or adults with developmental disabilities (such as Down deceive the court. syndrome or Autism). While minors can also be under guardianship, those arrangements are based upon the person being under Lastly, the court-appointed fiduciaries must make a report to the the age of 18 and are not the subject of this article. court annually or biannually. The annual guardian’s report covers the respondent’s health care, living situation, and community support GUARDIANSHIP IN KENTUCKY received.12 The conservator’s report is only required every two years In Kentucky, “guardianship and conservatorship for disabled persons by statute, but the court can require these be filed more frequently.13 shall be utilized only as is necessary to promote their well-being, including protection from neglect, exploitation, and abuse; shall be A guardianship or conservatorship can be terminated or modified designed to encourage the development of maximum self-reliance by the court.14 A petition by the respondent is not required to be and independence in each person; and shall be ordered only to the filed formally but may be done orally or by informal letter.15 A extent necessitated by each person’s actual mental and adaptive hearing is required within thirty (30) days and the respondent is limitations.”4 entitled to counsel for a modification or termination hearing.16

Guardianship and conservatorship strip the respondent (the pro- However, once someone is under a guardianship or conservatorship, posed ward) of many of their basic rights – the right to decide it is often difficult to get out. In Framing Britney Spears, Attorney where they live; the right to make medical decisions; the right to Vivian Thoreen, who has represented James Spears in his role as own weapons; the right to vote; and the right to spend their own conservator, notes that while conservatorships can end and the money. 5 Some guardians can even restrict who has access to the conservatee can have his/her rights restored, it is uncommon and respondent, including family members. she has not seen it happen. Kentucky does not keep statistics about pending guardianships and conservatorships. Kentucky attorneys Before a conservator or guardian is appointed, a judge or jury must who practice in the area will tell you that while it does happen, it is first find that the respondent is legally disabled. KRS 387.510(8) rare to see an individual fully regain all of their rights after having defines legal disability as an inability to make informed decisions. a guardian or conservator appointed. The disability can be personal in that the individual is “unable to make informed decisions with respect to his personal affairs to ALTERNATIVES such an extent that he lacks the capacity to provide for his physical Guardianship is an incredibly important procedure for persons health and safety, including but not limited to health care, food, lacking capacity. However, it is not the only option. Guardianship shelter, clothing, or personal hygiene.”6 The disability can also be can be avoided with some advanced planning. related to the individual’s finances in that he or she is “unable to make informed decisions with respect to his financial resources to POWERS OF ATTORNEY such an extent that he lacks the capacity to manage his property The ideal alternative is for the client to appoint an agent under a effectively by those actions necessary to obtain, administer, and durable power-of-attorney. A power-of-attorney is a legal docu- dispose of both real and personal property.”7 ment where one person, called the principal, voluntarily appoints a third party, called the agent, to act on his or her behalf for certain The Commonwealth bears the burden to prove disability by clear tasks. To avoid the need for guardianship in the event of total and convincing evidence.8 While the determination is one of legal incapacity, the client should have a robust power-of-attorney that disability, it is often based upon medical evidence. The main evi- exceeds the basic statutory power-of-attorney. The document should dence of disability is the interdisciplinary report - a report (or set directly and specifically address gifting, real estate, trust creation of reports) from a doctor, social worker, and psychologist.9 and funding (including revocable and irrevocable trusts), government agency interaction (Medicaid, VA, IRS, etc.), and health care The respondent can be found wholly disabled, partially disabled, or decision making (including HIPAA waivers). For an excellent arti- not disabled. After a finding of disability or partial disability, the cle on Powers-of-Attorneys, see Kentucky Powers of Attorney: A court will appoint a guardian and/or conservator. If the respondent Necessary Planning Tool for End of Life, Bench & Bar Magazine, is only partially disabled, the court will appoint a limited conserva- Vol. 77, Issue 3, pg 17, May 2013. tor or limited guardian to handle the respondent’s specific needs. The judge’s order should outline what actions or areas the conser- The agent-principal relationship is entirely voluntary. The agent vator or guardian is to manage. A limited guardianship or limited cannot force his or her will upon the principal. Thus, if the princi- conservatorship must be reviewed every five years.10 pal loses competency and puts themselves at risk by making poor choices (checking themselves out of facilities, wandering, giving

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their personal financial information to scammers, etc.), a guardian- a written agreement. This is additionally helpful when trying to ship and conservatorship may still become necessary. Additionally, explain the relationship to third parties. Some states place restric- because many fear planning for death or incapacity, it is not unusual tions on who can serve as supporters.21 that a disabled individual does not have this relationship in place before his or her incapacity. SDM is particularly popular with adults who are developmentally disabled. In 2017, Lexington resident Suzanne Heck became the CURATORSHIP first Kentuckian to have her rights fully restored using Supportive For persons who are still mentally competent but physically fragile, Decision Making. Her story highlights how rare it is to gain back the court can appoint a curator. The curator is court-appointed and autonomy after the appointment of a guardian and how SDM can remains under the court’s supervision. Curatorship is similar to the really work.22 appointment of conservator but requires no finding of disability. The person asks the court to appoint a specific person for him or TRUSTS her to handle her financial affairs. This process is outlined in KRS Trusts are also an option for those who need assistance with asset 387.320. management. A well-drafted revocable, irrevocable, or supplemental needs trust can assist a vulnerable person with asset management Curatorship is an excellent option for those who need assistance decisions. An ethical and responsible trustee can manage, invest, and are hesitant to sign a power-of-attorney or in cases where and dispense financial resources on behalf of the trust beneficiary. family members are interfering with the finances of a competent Trusts are particularly helpful in managing the assets of those who adult. Curatorship can also be used by a competent adult who fears receive government benefits.23 However, the trustee will not have someone will file guardianship over them. the ability to make health care and personal decisions for the trust beneficiary. Curatorship, however, does not allow for the court-appointed curator to make health care or personal decisions for the other person. WINGS In 2018, Kentucky Joint House Resolution 33 directed the creation REPRESENTATIVE PAYEE of Kentucky WINGS.24 WINGS is an abbreviation for Working The Social Security Administration has a program in place for Interdisciplinary Networks of Guardianship Stakeholders. There beneficiaries who need assistance managing their Social Security are WINGS groups in over 25 states.25 funds.17 The Social Security Representative Payee program allows a responsible person to be named the Representative Payee (often The Kentucky resolution recommended that the Cabinet for Health referred to as “Rep Payee”) to receive and manage the beneficiary’s and Family Services and the Administrative Office of the Courts social security benefits. The Representative Payee must make an create a pilot program, to examine how Kentucky’s adult guard- annual report detailing the use of the beneficiary’s funds. ianship was working and to identify needed changes. WINGS was formed and comprised of members of the judiciary, attorneys, social This arrangement can help avoid guardianship and conservator- workers, state guardians, representatives from interested organi- ship, particularly when Social Security is the only form of income. zations, and many others.26 Unfortunately, the resolution creating However, the Representative Payee has no ability to make medical WINGS did not provide for any funding. or personal decisions on behalf of the beneficiary.18 The purpose of the group was to educate and improve guardian- SUPPORTED DECISION MAKING ship services. Kentucky WINGS created educational materials for Supported decision making (SDM) is becoming a more prominent judges, guardians, and the public about guardianship and available alternative. Currently, Kentucky residents have no law to rely upon. alternatives. Further, they sought to expand the rights available to Attempts to codify specific language failed in 2019 and 2020.19 the respondent during the proceedings. However, other states are codifying SDM. At the time of writing, these include Alaska, Delaware, Indiana, Louisiana, Nevada, North At this time, the Kentucky pilot program has ended and the future Dakota, Rhode Island, Texas, Wisconsin, and Washington D. C.20 of the organization is uncertain, especially without financial support. More states are adopting statutory regulations yearly. WHERE DO WE GO FROM HERE? Similar to the agent-principal relationship under a power-of-attor- Guardianship and conservatorship will remain a necessary insti- ney, SDM is an arrangement where the disabled person retains their tution. Without these processes, elderly, disabled, and vulnerable rights and abilities to make decisions but has dedicated supporters adults will be at risk. For many, without the guardianship process, who assist. The supporter can offer advice and point out the pros a disabled individual would not have proper medical treatment or and cons of a decision. And while they can indicate disagreement live in an appropriate environment. Conservatorships make sure with a decision, they cannot overrule it. that bills get paid and that the respondent has a roof over his head. Unfortunately, once the guardianship train starts rolling, it rarely These arrangements can be informal and unwritten. However, stops, even if an alternative may be useful. Before jumping straight the states where the arrangement is codified do generally require to guardianship or conservatorship, petitioners should consider the

26 | JULY/AUGUST 2021 ABOUT THE AUTHOR MARY ELLIS PATTON is a partner at Blue- grass Elderlaw, PLLC. Patton earned her J.D. from the University of Dayton School ENDNOTES of Law and her B.A. from the University of Kentucky. She is licensed to practice law 1 I Care a Lot. Written and Directed by J Blakeson. With performances by Rosamund Pike, Peter Dinklage, Eliza González. Produced by Bear in both Kentucky and Ohio. Pictures and Crimple Beck (2021). Rosamund Pike won the Best Actress Golden Globe for her role. She is a former chair of the Elder Law Sec- 2 ‘I Care a Lot’: The Shocking True Stories Behind the Netflix Movie by tion of the Kentucky Bar Association and Samuel Spencer. Newsweek February 24, 2021. Available: https://www. newsweek.com/i-care-lot-real-life-true-story-marla-grayson-1571600. See is the president of the Kentucky Guardian- also, How the Elderly Lose Their Rights by Rachel Aviv; The New Yorker, ship Association. She has authored chapters in the Kentucky Practice October 2, 2017. Series (Elder Law Volume), the UK/CLE Elder Law Handbook, and 3 The ewN York Times Presents: Framing Britney Spears. Directed Saman- multiple continuing legal education articles. In 2019, she was named tha Stark. Left/Right Productions, 2021. 4 KRS 387.500(3) the Pro Bono Attorney of the year by Legal Aid of the Bluegrass. She 5 KRS 387.590(7) is also involved with the National Academy of Elder Law Attorneys, 6 KRS 387.510(8)(a) Alzheimer’s Association, Kentucky WINGS, Leadership Lexington, 7 KRS 387.510(8)(b) Leadership Lexington Alumni Steering Committee, and the Advisory 8 KRS 387.570(5) 9 KRS 387.540 Board of the Alpha Theta Chapter of Delta Zeta, where she was named 10 KRS 387.590(4) the Fraternity and Sorority Life Chapter Advisor of the Year in 2021. 11 KRS 387.560 12 KRS 387.670 13 KRS 387.710 alternatives. If part of the guardianship process involved the parties 14 KRS 387.620 15 KRS 387.620(3) discussing the suitability and possible use of the alternatives on the 16 KRS 387.620(4) record before moving onto a full disability trial, it would limit the 17 C.F.R. § 416.601 number of guardianships. 18 See generally, A Guide for Representative Payees, Social Security Admin- istration Publication No. 05-10076 (December 2019). Available: https:// www.ssa.gov/pubs/EN-05-10076.pdf Petitioners should also consider asking for limited (partial) con- 19 H.B. 473, 2019 Reg. Sess. (Ky. 2019). H.B. 531, 2020 Reg. Sess. (Ky. servatorships and guardianships. By tailoring the court orders and 2020). fiduciary duties to the person, it would enable the respondent to 20 See Tex. Estates Code Ann. § 1357, Del. Code tit. 16 § 9401A, Alaska Stat. retain some independence and dignity. To use these limited guard- § 13.56, D.C. Code § 7-2131-2134, Wis. Stat. Ann. § 52, N.D. Cent. Code § 30.2-36.01, Ind. Code Ann. § 29-3-14-1, Nev. Rev. Stat. § 162A, R.I. ianships and conservatorships effectively, the court orders must Gen. Laws §66.13. specifically outline what tasks should be done by the fiduciary. 21 Supported Decision-Making Agreements Gain Momentum by Zachary Allen and Dari Pogach; Bifocal: Journal of the ABA Commission on Law Currently, Kentucky does not require training or have a qualification and Aging, Vol. 41, No. 1 (2019). Available: https://www.americanbar. process for guardians or conservators. KRS 387.605 lists qualifications org/content/dam/aba/administrative/law_aging/bifocal-september-octo- 27 ber2019.pdf for the judge to consider and each county and each judge handles 22 Freed From Guardianship A Kentucky First: Suzie Wins Her Rights in this differently. Some counties do not require background checks. Court Using SDM, National Resource Center for Supported Decision Making. Available: http://supporteddecisionmaking.org/impact-stories/ freed-guardianship-kentucky-first-suzie-wins-her-rights-court-using-sdm From a legislative perspective, implementing formal Supported 23 For a breakdown of the different types of supplemental needs trusts, See, Decision Making; funding groups like Kentucky WINGS; requir- Must the Court Approve Special Needs and Asset Protection Planning ing a qualification process or training for guardians/conservators; for Your Disabled Client? 2017 Kentucky Bar Association Kentucky Law and revising the guardianship statutes would go a long way towards Update. Written by Amy E. Dougherty, Melissa J. Crump, and Mary Ellis Patton. Available: https://cdn.ymaws.com/www.kybar.org/resource/resmgr/ enabling disabled individuals to maintain some control over their cle/video_replay/2018/2017_KLU_BOOK_FINAL.pdf lives as set forth by the legislative intent of KRS 387.500(3). 24 H.B. Joint Resolution 33; available: https://apps.legislature.ky.gov/record/18rs/hjr33.html Additionally, as the number of solo agers (also called elder orphans) 25 ABA: Wings Court-Stateholder Partnerships. Available: https://www. americanbar.org/groups/law_aging/resources/wings-court-stakehold- who have no spouse or children rise, the need for professional er-partnerships0/ guardians and professional agents under powers-of-attorney is 26 This author was a member of WINGS. going to rise. For many, the problem is not that they cannot use 27 KRS 387.605 an alternative, but there is no trusted person to appoint. Too often 28 Bill to update guardianship laws clears Senate panel. Kentucky Today (February 21, 2018). Available: https://www.kentuckytoday.com/stories/ these individuals end up under state guardianship. State guardians bill-to-update-guardianship-laws-clears-senate-panel,11977 are carrying caseloads of 65 to 70 wards each, which is about three Status of Guardianship Caseloads. Department for Aging and Indepen- 28 times more than that recommended by national guidelines. dent Living. Available: https://apps.legislature.ky.gov/CommitteeDocu- ments/12/12054/Sep%2010%202019%20Gadd%20DAIL%20PowerPoint. pdf Lastly, those who are appointed as guardians and conservators 29 www.kyguardianship.org need to educate themselves about the process and their duties. The Kentucky Guardianship Association has an excellent manual and provides educational resources to fiduciaries.29

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The Silver Tsunami: The Practical Aspects of Representing Clients with Dementia BY KATIE E. FINNELL

28 | JULY/AUGUST 2021 avigating legal problems and analyzing possible solutions is often made more difficult when dementia is involved. In Overprotected? A look at guardianship and the alter- Nnatives, Mary Ellis Patton discusses the laws surrounding guardianship and other, less restrictive, alternatives. Using Overprotected? as a starting point, this article intends to educate attorneys in any type of practice to know the warning signs of dementia; review scenarios and solutions with the practical application of the law; as well as note some general tips to keep in mind when working with clients with dementia. THE SILVER TSUNAMI AND DEMENTIA: The Silver Tsunami, also known as the Grey Tsunami, Silver Wave, and Grey Wave, is a metaphor used to describe the substantial increase in the older population as the baby boomer generation reaches their senior years. This growing senior population will increase the need for everything from assisted living to dementia awareness.

Dementia is a general term used to describe the loss of intellectual capacity and personality integration which severely impairs daily life. Based on estimates from the Aging, Demo- graphics, and Memory Study (ADAMS), roughly 11% of people over the age of 65 have dementia in the United States.1 Of all the different types of dementia, Alzheimer’s is the most common and currently makes up 60-80% of all dementia cases.2 The Alzheimer’s Association estimates there were 75,000 Kentuckians with Alzheimer’s in 2020 with a projected rise to 86,000 by 2025.3

What does the increasing number of cases mean for Kentucky attorneys? It means that all attorneys, not just those who focus their practice on elder law, need to be aware of the warning signs and planning strategies for these clients and their families. The likelihood of having a client or situation involving someone with dementia is rapidly increasing. Like medical professionals, attorneys are on the front lines and are in the best position to spot a developing issue and help determine the appropriate course of action to prevent the issue from becoming worse.

Catching early warning signs and schedul- There are 10 early warning signs and symptoms of Alzheimer’s which can ing an appointment with a doctor are key also be red flags regarding other types of dementia or cognitive issues: to managing symptoms and maintaining 4 Memory loss that disrupts Challenges in planning or solving independence for as long as possible. daily life (ex: asking the same problems (ex: having trouble following 1 question over and over again); 2 a recipe or other multi-step directions); Attorneys can find more information about Alzheimer’s and dementia through their local Alzheimer’s Association Chapter as Difficulty completing familiar tasks Confusion in time or place (ex: driving to a familiar location); (ex: forgetting where they well as the annual Markesbery Symposium 3 4 are or how they got there); on Aging and Dementia sponsored by the University of Kentucky Sanders-Brown Trouble understanding visual Center on Aging.5 images and spatial relationships New problems with words in 5 (ex: problems judging distance speaking or writing (ex: having AVA AND HER and determining colors); 6 trouble naming a familiar object); CURATORSHIP: Ava, a longtime client, was widowed sev- Misplacing things and losing Decreased or poor judgment eral years ago. She has a rocky relationship the ability to retrace steps (ex: (ex: paying less attention with her only son, Ricky, spanning several 7 misplacing things and accusing 8 to grooming and cleanliness); others of stealing); decades and has had no contact with him since her husband passed away. Ricky has a history of substance abuse and a tendency Withdrawal from work or Changes in mood and personality to become violent. Ava and her husband social activities (ex: not (ex: easily upset in a fashion over spent many years bailing Ricky out and 9 being able to keep up with a 10 and above general irritability). favorite team or activity); and providing financial support before they finally had to cut him off for fear of blow- ing through their entire life savings. Since her husband passed, Ava has turned to her

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favorite niece, Mia, to help with her affairs. Ava appointed Mia as could face if Steve causes another accident or injury. It is important her power of attorney for both finances and healthcare. to remember that although Steve is the client and the discussion should relate to Steve’s affairs, explaining the role, rights, and obli- Recently, Ava made an appointment to review her long-term plan gations of the power of attorney to John would not be a conflict as and estate planning documents because she had recently seen a long as the focus is on Steve’s best interests. neurologist and was diagnosed with early stages of Alzheimer’s. Ava has been very concerned about finances after her husband passed The appointment with John covered multiple options for addressing away because he always handled the bills and investments. To relieve the driving issue: filing for guardianship; hiring in home care- some of Ava’s stress, Mia is paying all of her bills, maintains a rela- givers; moving Steve into a memory care facility; and/or moving tionship with Ava’s financial advisor, and reviews everything with Steve in with John’s family. John wants to hold the guardianship Ava once a month. Ava is concerned that if Ricky asks for money as the last resort in the hopes the issue could be resolved in a less again, she will do whatever he asks, due to her diminishing capacity. restrictive manner. John is scheduling and transporting Steve to Ava’s goal is to give up all control and access to her money so there all his medical appointments, doing most of the shopping, and is no chance of this happening down the road. handling all the finances. Steve pays for everything in cash and has been happy with the weekly amount John has been providing. In Ava’s solution is voluntary curatorship. The curatorship does not reviewing the finances, the cost of a memory care unit is close to require notice or a public hearing and, unlike guardianship or con- the cost of in-home caregivers. John is not sure how his dad would servatorship, does not require notice to next of kin (Ricky) or a handle someone in his house all the time nor is he sure how his declaration of disability.6 dad would adapt to living with John’s kids and pets. It would be a hard transition after living alone for many years. SNEAKY STEVE: Sometimes, issues easily resolved for the average person are exac- After talking everything through, John determined a memory care erbated by dementia. While there is not always a legal solution, facility was the best option. What was the big selling point of a lawyers are frequently called upon to help navigate the murky waters certain memory care facility? Interestingly, it was a fancy coffee bar. of what families can and cannot do in certain situations. During the discussion, John realized that every accident and every sneaky adventure Steve had was early in the day. For many years, Giving up driving means giving up one’s freedom and independence Steve started his morning with a fresh cup of fancy coffee from a and can be very difficult for anyone. Under normal circumstances, a local coffee shop and a chat with the barista. Steve had continued person with declining vision would likely stop driving voluntarily, the habit into retirement. After moving into the care facility, Steve especially after an accident. A person with dementia may not nec- “managed” the coffee bar, chatting each morning with all the other essarily do so. Take for example, our client Steve. After multiple residents for as long as he was physically and mentally able. at-fault driving accidents, Steve’s family staged an old-fashioned intervention. While it is hard to determine if Steve’s dementia But what if Steve was unwilling to stay in memory care? As his was the actual cause of the accidents, his extremely poor vision power of attorney, Steve’s son could not force him to stay against and driving without his glasses did not help. Dementia has caused Steve’s short-term memory to greatly decline and he is not able to remember the accidents, the intervention, or his promise not to drive. When Steve’s children took his keys, he ordered another set from the dealership. When Steve’s children took out the car battery, he called AAA to deliver a new one. When Steve’s kids moved the car off-site, he had a rental car delivered. As a last ditch and futile effort, Steve’s kids started calling him every morning to remind him that he has poor vision, dementia, and is not supposed to drive.

Steve’s oldest son, John, is his agent under a power of attorney. John scheduled an appointment with Steve’s attorney for help. John would like clarification regarding what rights and obligations he has as power of attorney to stop Steve from driving. John is also concerned about the personal liability he

30 | JULY/AUGUST 2021 PRACTICAL TIPS FOR WORKING his will.7 Steve would have the ability to check himself out unless WITH SENIORS: he was under guardianship. This is where the water becomes murky. Schedule separate appointments for the consultation Steve is your client. You have been assisting Steve’s son as power of and signing to thoroughly evaluate capacity. attorney, but are you able to represent the son in filing guardian- 1 ship? The answer is no. As explained by the ABA Committee in a Discuss long-term care planning with all estate formal opinion, “such a representation would necessarily have to planning clients regardless of their age or health 8 2 be regarded as ‘adverse’ to the client and prohibited by Rule 1.7(a) , status. Your clients may be in their 30s, but their even if the lawyer sincerely and reasonably believes that such rep- grandparents are likely in their 80s. resentation would be in the client’s best interests, unless and until the court makes the necessary determination of incompetence.” 9 Take detailed notes, especially when there has been a This leaves the attorney in a difficult position until the guardian- 3 dementia diagnosis, including what conference room ship process is complete and the guardian returns to the office. you were in and what you were wearing that day. It The attorney can generally explain the guardianship process to the may help with client comfort and recollection in family, provide them contact information for the court or another the future. attorney, and be prepared to represent Steve in the case if necessary. Keep resources on hand such as the contact STEPHANIE THE CAREGIVER CHILD: information for the Department of Aging and 4 Independent Living (DAIL) and your local Area Randall was diagnosed several years ago with Parkinson’s disease Agency on Aging.14 which is a progressive nervous system disorder under the dementia diagnosis umbrella. Parkinson’s symptoms include shaking, stiffness, 10 ABOUT THE AUTHOR and difficulty with walking, balance, and coordination. These KATIE E. FINNELL begin to gradually and worsen over time. Randall’s daughter, Steph- is a partner at Bluegrass anie, is a retired nurse and moved in with her dad several years ago Elderlaw, PLLC. Finnell earned her J.D. from to be his primary caregiver because “that’s what the children do” the Northern Kentucky University Chase in their family. Stephanie contacts an attorney after her dad’s care College of Law, an L.L.M. in Estate Planning becomes too much for her to handle. and Elder Law from Western New England University, and a B.A. from the University of Stephanie, with the help of the neurologist, has decided a skilled Kentucky. She is chair elect of the Elder Law nursing facility is best equipped to handle Randall’s medical care. section of the Kentucky Bar Association, chair Randall’s monthly income, although substantial, is not enough to of the Kentucky Conference for Community cover his cost of care which has depleted his savings. Currently, and Justice, and serves on the Board of Dementia Friendly Lex- the only large remaining asset is Randall’s house. Under the Med- ington. She is associated with the National Academy of Elder Law icaid rules, a caregiver child is considered the eligible recipient of Attorneys and the Fayette County Bar Women’s Law Association. a home transfer if they have lived in the home and provided care In addition, she is involved with the Citizens Foster Care Review for their aging parent for a period of two years. Documentation is Board, where she serves as chair and sits on the Legislative Com- required, including a letter from a doctor stating that, if not for the mittee. She has multiple publications pertaining to Elder Law. care provided by the child for the last two years, the elderly parent would have required institutionalization.11 ENDNOTES 1 Hudomiet P, Hurd M, Rohwedder S. Dementia prevalence in the United Unfortunately, Randall no longer has the capacity to sign the deed States in 2000 and 2012: Estimates based on a nationally representative and his outdated power of attorney document did not allow for study. J Gerontol B Psychol Sci Soc Sci 2018:73 (Suppl 1) S10-S19. 12 2 State-by-state prevalence of Alzheimer’s dementia: These state-by-state gifting. While Randall can qualify for Medicaid owning the home, prevalence numbers are based on an analysis of incidence data from CHAP, there will be a Medicaid recovery against it. Alternatively, if the projected to each state’s population for 2020 and 2025, with adjustments for house sells during Randall’s lifetime, the proceeds from the sale state-specific age, gender, years of education, race and mortality. Weuve J, Herbert LE, Scherr PA, Evans Da. Prevalence of Alzheimer’s disease in the will terminate his Medicaid eligibility and will have to be spent U.S. States. Epidemiology 2015;26(1):E4-E6. on his continued care. 3 Id. 4 www.alz.org: An Official publication of the Alzheimer’s Association Rev. What if Randall had discussed this with the attorney at the time Jun19. Examples added by the author. 5 www.alz.org, https://sbcoa.med.uky.edu. The symposium was named after of his diagnosis? The attorney could have updated the power of founding Center director Dr. William Markesbery (1932-2010). attorney document to include gifting language. The house could 6 See Overprotected? 2.B. have been gifted to Stephanie or placed into an irrevocable trust 7 See Overprotected? 2.A. with the hopes of making it past the 5-year Medicaid lookback.13 8 SCR 3.130(1.7). 9 ABA Formal Opinion 96-404 (August 2, 1996). If Randall was not comfortable with gifting, a caregiver contract 10 www.parkinson.org. to pay Stephanie for her work could have been executed with the 11 907 KAR 20:030. payment being the house down the road. Like Randall, clients often 12 See Overprotected? 2.A. miss out on multiple opportunities to preserve assets or provide 13 Id. adequate compensation to caregiving children. 14 http://chfs.ky.gov/agencies.

BENCH & BAR | 31 features: ELDER LAW 1Claims Against the Estate and Medicaid Estate Recovery: Personal Injury/Wrongful Death Settlements, Exclusions and Legislative Hurdles BY SCOTT E. COLLINS

hat do medical malpractice and MER Program the option to enlarge its personal injury attorneys have recovery to include assets beyond the pro- Win common with probate and bate definition. Kentucky chose to enlarge elder law attorneys? If nothing else, they its recovery attempts and is an Expanded all have the responsibility to manage Estate Recovery State along with 34 others their way through the dreaded Medicaid and the District of Columbia.4 Therefore, Estate Recovery Program! Because of the the Department of Medicaid Services in program’s complexity, Medicaid Estate the Commonwealth may recover: Recovery (MER) continues to be a difficult process to understand. Couple the 1) up to the total amount paid from lack of awareness of how to apply MER any individual who received exemptions and respond to its reporting payments, requirements with the lack of statutory 2) after age 55 or from inpatient detail and conflicting laws, and the result services in an intermediate care is a maze of confusion. This article sets out facility, the current rules for Kentucky practitioners, illuminates the ambiguities in Kentucky 3) for medical care in a nursing law, and highlights the national debate facility, through home and com- that will soon bring drastic changes to munity-based services, and related these practice areas in order to bring clar- hospital and prescription drug ity to practitioners attempting to fulfil their services, Medicaid Estate Recovery duties and their 4) from that individual’s estate once duty to their clients. they have passed away, FEDERAL LAW AND KENTUCKY 5) as defined as, “all real and per- STATUTES sonal property or other assets 42 U.S.C 1396p(b)(1)2 requires state Med- owned by the deceased recip- icaid agencies attempt to recover costs of ient that would be included as payments made to benefit recipients from probate property under Kentucky their estates after they have died.3 MER law; and (b) all real and personal attempts to recuperate up to the total cost property or other assets in which of payments made to an individual for med- the deceased recipient had legal ical care in a nursing facility, through home title or interest at the time of and community-based services, and related death, to the extent of the recip- hospital and prescription drug services. ient’s interest, whether the asset was conveyed to a survivor, heir or The basic mandate to attempt to recuperate assignee of the deceased recipient costs directs that recovery is from probate through joint tenancy, tenancy in assets under each particular states’ defini- common survivorship, life estate, 5 tion of “estate” for the purposes of probate living trust or other arrangement.” law. However, the U.S.C. gives each state

32 | JULY/AUGUST 2021 This five-part scheme appears easy enough Medicaid’s total budget spent on long-term The language of Kentucky’s expanded MER to apply. However, as we will examine in care. In fact, in Kentucky 65 percent of all gives the program teeth to go after many the following sections, there are many dif- nursing home residents receive Medicaid. other assets that may be jointly held or to ficulties within the scheme that emerge as The annual cost to Kentucky for long-term which the decedent had claim at the time we go deeper. care services was $2.1 billion (for fiscal year of death. The state has no interest in pos- 2019, the most recent date for complete sessing a parcel of land or going after 401K WHAT’S FUELING THE POLICY numbers gathered as of June 15, 2020). beneficiaries (for example). Enforcement Medicaid is universally recognized as one Even with this very high outlay, the Ken- is executed through a lien upon the estate. of the largest program expenditures in tucky Medicaid Estate Recovery Program Utilizing liens against the estate encourages the Federal budget, and within Medicaid, only recuperates approximately one-third of the administrator of the estate to liquidate budget expenditures for long-term care (i.e. one percent of the total expenditures from interests in land so that proceeds may be nursing home care) is top of the list. While the estates of deceased recipients.6 Then, paid to the MER program. Currently, assets adults over age 65 constitute 15 percent of even for amounts recovered, administra- not controlled by the administrator of the Kentucky’s population, only 8 percent of tive costs incurred in the collection effort estate through probate are not under the those over age 65 represent 21 percent of are approximately 10 percent of the total purview of the MER program although amount recovered. legally they could be. With fiscal demands increasing due to expenditures such as eco- THE GREAT EXPANSION nomic stimulus relief fund COVID-19, Applying MER rules becomes significantly MER has much low-hanging fruit within more difficult with the expanded definition its grasp. of assets that are subject to recovery. For instance, “any other asset to which the DUTIES OF THE PERSONAL deceased recipient had interest at the time REPRESENTATIVE of death” includes a settlement from liti- An attorney guiding a Medicaid applicant gation for an injury that arose prior to the through the process or while doing advance death. Wrongful death claims also fit this estate planning must be knowledgeable of definition if there is no surviving spouse or the rules of MER. Conversely, the court surviving children to receive the proceeds appointed personal representative of the of the settlement. estate (or the representative’s attorney), in an action for medical negligence or wrong- The Kentucky Legislature has carved out an ful death, is responsible to inform all who exclusion that such wrongful death claims may be affected by MER8 and to alert the are paid directly to the surviving spouse or agency of the action The representative for children, if there are any (and not the estate). the Medicaid applicant may be an estate Therefore, this is not an asset the deceased planning attorney or an elder law attorney recipient had an interest if there is a surviv- with a fiduciary duty to the applicant to ing spouse or child. However, if none exist preserve assets. The personal represen- the personal representative of the estate may tative in the probate action may have no still bring the claim. The settlement pro- knowledge of prior Medicaid coverage for ceeds become part of the decedent’s estate the decedent. However, the changing of and MER does have a claim.7 Other causes persons who were involved in the pre and of action do not possess the statutory caveat post death care of the individual’s estate can provided by the Wrongful Death statute. As result in a gap in knowledge and failure to a result, they are payable to the estate and comply with MER reporting requirements. are subject to Estate Recovery. The Department for Medicaid Services is obligated to notify the personal representa- The nature of litigation to extend over tive of Medicaid’s intent to recovery against months or years may require the adminis- the estate. However, Medicaid’s obligation trator of the estate to go through the MER to notify does not bar its claim. In fact, process once at the initial stages of pro- there is no bar against the right to recov- bate and again once a settlement has been er,9 nor is there a statute of limitation for received. This can present its own prob- the Commonwealth to exercise its claim. lems because exemptions that may exist at the second round of MER may not apply Upon petition to open probate the personal because they did not exist at the time of representative should 1) notify Depart- death. ment of Medicaid Service of the Petition,

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2) respond to the Department’s notice of UNDUE HARDSHIP order not to impoverish. If the request is intent to recovery and the Estate Recovery The 907 KAR 1:585 states that an “undue denied, then an appeal through an admin- 10 Exemption Questionnaire that accompa- hardship [exists] if an asset subject to istrative hearing process may be requested. 11 nies the notice within 30 days of receipt recovery is the sole-income producing The initial request for undue hardship is with either, 3) demonstrate in the Ques- asset” such as a farm or business but cannot much like shooting into the dark because tionnaire that either a) the estate is exempt include residential real property producing there are no published standards for deter- from MER, b) recovery against the estate income through a lease or a rental agree- mination. From my experience, denial is would create an undue hardship, or c) the ment. This appears to be an arbitrary and likely for such requests except for sole-in- cost of recovery is not cost effective. Let’s inequitable application of the rules. What come producing farms and non-real estate now look at these criteria. distinguishes a dry cleaning business from businesses. a residential rental busines, which many EXEMPTIONS AND seniors are far more likely to possess? While Perhaps the most fundamental of ambigu- EXCLUSIONS no regulatory basis exists for such a deter- ities in MER is the conflict between the Estates are wholly exempted from MER if mination, the Medicaid Estate Recovery MER exemption of estates of $10,000 or there is: 1) a surviving spouse, 2) a surviving Fact Sheet12 gives additional conditions less and surviving spousal exemption and child (under age 21), or 3) a surviving child in which the Department may not pursue surviving child exemption under Kentucky 13 over age 21 who is either blind or disabled recovery against the estate. These reasons Probate Law that excludes $30,000 from (under the definition of 42 U.S.C. 1382c). include surviving family member has con- claims against the estate preserving it for Further, any asset that is part of the estate tinuing educational needs or a surviving the aforenamed survivor(s). Historically, but was counted as an excluded asset during family member has medical needs. MER has been on both sides of the law the application for coverage by a long-term both allowing the spousal exemption and at care partnership policy is exempted from Undue Hardship is a foundational policy other times recovering against estates with recovery. concern in Medicaid rules and regulations less than the spousal exemption threshold not only in MER. The Kentucky Medicaid yet above the “cost effective” threshold. The most troubling aspect of these exemp- Manual defines undue hardship as a deci- Clearly, the disparity is a conflict between tions is the agency’s application of the sion made by Medicaid that deprives an policies that drive each rule. disability rule. If the surviving adult child individual of medical care to the extent the is disabled, MER will waive recovery only individual’s health and life would be endan- CONCLUSION if the disability was in place at the time of gered or the individual would be deprived The policy rationale behind MER is death of the recipient. If settlement from a of food, clothing, shelter, or other necessi- twofold. First, the expense of Medicaid cause of action is received two years after ties of life. Such consideration is not only is extreme and methods of lessening or death, during which time the surviving for the individual applying for benefits but offsetting the expense is needed. Afterall, child becomes disabled, MER will still the surviving spouse or other family mem- Medicaid enrollment expands at approx- recover. bers and their larger lifestyle necessities in imately one percent each year. MER recovers about $7 million per year for the State of Kentucky. However, this recovery is only one-third of a percent of the total outlay. Second, a need to bring in income to offset the outlay, with the argument that the funds recovered are needed to provide coverage for new applicants.

The counter argument for lessening MER, or perhaps eliminating it altogether, is that it takes our most vulnerable families and removes any wealth that they may possess to pass on to the next generation, and therefore creates a greater dependency on government resources. Seventy-five percent of decedents who received Medicaid have a net worth under $48,50014 (almost exclusively from their residence value). Signif- icant voices argue that public policy for Medicaid coverage is to provide

34 | JULY/AUGUST 2021 ENDNOTES ABOUT 1 This equirementr was first introduced in Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103- THE AUTHOR 66, 107 Stat. 622-29 [commonly referred to as OBRA 1993], codified as amended in 42 U.S.C. 1396p. SCOTT E. COL- 2 42 U.S.C 1396p(a)(1). LINS 3 42 U.S.C. 1396p(b)(4)(A) and (B). is principal 4 Each program varies in degree of enlargement and standards for recovery. For a survey of different state of The Elder Law approaches see, Kristine J. Williams, The Future of Estate Recovery: An Analysis of Different State Practice of Scott E. Approaches and Changes, 16 NAELA Journal 17 (Spring 2020). Collins, PLLC in 5 907 KAR 1:585 Sect 1(3)(a) and (b). 6 See the Commission’s report Medicaid Estate Recovery: Improving Policy and Promoting Equity, at 72 Richmond, Ky. His and 118, in https://www.macpac.gov/wp-content/uploads/2021/03/chapter-3-Medicaid-Estate-Recov- practice focuses on ery-Improving-Policy-and-Promoting-Equity.pdf. medicaid and veter- 7 In such cases the proceeds become “part of the personal estate of the deceased, after payments of his an’s benefits, special debts.” K.R.S. 411.130 (2) (e). 8 This equirementr is not only for the personal representative of the estate in the probate action, but also needs planning, guardianship, wills, for the attorney in a personal injury/wrongful death action. See KRS 205.629: “In any action to recover trusts and probate. damages on behalf of a recipient [of Medicaid services], the cabinet shall receive notice from the recipient’s attorney.” Further, KRS 424.340, clarifies that notice from the probate court that an estate has been basic care as a hallmark of dignity and initiated and a fiduciary has been appointed is required. However, such publication has no impact upon requirements for timely claims to be presented to the court, nor does it reduce the fiduciary’s liability to humane concern. The same policy demands pay any claim against the estate. See infra note ix. that basic dignity is also rooted in home 9 K.R.S. 396.011(1) preserves any claim of the United States and the State of Kentucky or any subdivision ownership without which the individual thereof from being barred by time limitations. Further, the lack notice of claim (or potential claim) from Medicaid recipient is prone to depression MER does not provide a shield against the claim to the estate or the duty of the personal representation. 10 The Questionnaire, in determining whether to grant an estate exemption from MER, asks 5 questions; 1) is and anxiety increasing their need for more there a surviving spouse, 2) and under age 21 child, 3) a disabled child, is the value of the estate at the time costly treatment. The debate is sharpen- of death $10,000.00 or less, or 5) is the main asset of the estate the sole-income producing asset of a surviving at the Federal level and proposals are ing family member. Notably absent is the spousal and surviving exemption provided under KRS 391.030. before Medicaid officials to allow state to 11 In situations where the estate must be open in order to pursue litigation, the settlement sought is not yet available to be excluded. Therefore, the exclusion may be sought for the estate in the initial stages and a eliminate MER altogether or guide MER future settlement will require request for exemption once received. programs toward more effective recovery. 12 Also known as MAP-708, promulgated 2/2019, https://chfs.ky.gov/agencies/dms/MAPForms/ One thing is sure, things are changing. MAP708.pdf. 13 KRS 391.030. 14 Id. at note vi.

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BENCH & BAR | 35 features: ELDER LAW

Disabled Kentuckians Denied Divorces? No Longer the Law in Kentucky BY SHARI POLUR AND DAVID A. EHSAN

his article presents an agonizing tale involving scores of attorneys and Tjudges, detectives and adult protective services workers, not-for-profit entities and private guardians, financial institutions, home incarceration program workers, and others. All were working together to stop one octogenarian from further physical abuse, neglect, and fiscal exploitation by his 30-something spouse. Ultimately, in seeking to preserve an elderly man’s life, what was required was a change to long-standing Kentucky law.

The primary legal issues in this case are spousal abuse and guardianship. However, this case addresses profound societal considerations as well: fiscal exploitation of the elderly, views on marriage and divorce, and attitudes and responsibilities toward those deemed legally disabled. The Kentucky Supreme Court here had to determine whether a wife, whose abuse resulted in her husband needing a guardian to protect him from her, could remain married to him. Because Kentucky law required a person under guardianship to remain shackled to his abuser, he would suffer not just that indignity but also a final insult: she eventually would inherit anything she had not already purloined from him.

36 | JULY/AUGUST 2021 THE FACTS IN report for investigation. I spoke to one of neither produced documents nor appeared RUISSEAU’S CASE the previous investigators and was told, as ordered. After an evidentiary hearing This sordid case stems from the 2017 mar- ‘They are married. We can’t do anything.’ regarding Mayord’s financial dealings, the riage between Mr. Ruisseau (a pseudonym) No way was that going to work for me!” court held Mayord in contempt for failing and Ms. Mayord (another pseudonym). Ms. Torres filed an emergency guardianship to comply with its prior orders and further They met in 2016, when Mayord was pur- petition. ordered her to make restitution within 90 portedly serving as Ruisseau’s caregiver. At days or go to jail. To date, Mayord has never the time of the marriage, the groom was in In November, 2018, Jefferson County Dis- made any real effort to make restitution. his late seventies and the bride was in her trict Court held an emergency guardianship 20s. Mayord immediately began her abuse. proceeding and appointed ElderServe, Inc. In a related criminal action, thousands of She systematically emptied Ruisseau’s (“ElderServe”), a not-for-profit agency, pages of bank records were subpoenaed bank account each month, disposed of his to protect Ruisseau from further fiscal by Detective Anne Nielsen of the Louis- (and his deceased wife’s) tangible personal exploitation, neglect and physical abuse by ville Metro Police Department’s financial property, and spent lavishly on herself and Mayord. Pursuant to Kentucky’s power of crimes unit. Detective Nielsen’s diligence in a complement of rotating boyfriends. She attorney law, Mayord’s agency under any obtaining information from financial insti- removed Ruisseau from his premarital power of attorney authorized by Ruisseau tutions resulted in Mayord being indicted 1 residence and sold it without his knowl- terminated at this time. in Jefferson Circuit Court on 12 counts, edge, much less his permission. With the including Theft by Deception, Exploitation proceeds, Mayord repaid her creditors and In January, 2019, after a full guardianship of an Adult, Forgery and other charges of purchased a new home in another county trial, the district court found Ruisseau to fiscally exploiting an elderly person — her 2 using her maiden name. Mayord moved be fully disabled in his personal and finan- spouse. into her new residence, abandoning her cial affairs, and appointed ElderServe as husband in an apartment where he was his permanent guardian and conservator. ElderServe initiated another action, this sufficiently neglected and physically abused After that date, and despite court warnings time in Jefferson Circuit Court in the by her and her parents (his caretakers) that that she had no authority, Mayord endorsed Family Division, seeking to dissolve the Adult Protective Services (“APS”) was noti- over to her various paramours at least five sham marriage. Ultimately, ElderServe fied. According to the APS worker assigned pension checks payable solely to Ruisseau. decided not to move forward on an annul- to the matter, Margaret “Peggy” Torres, “I Upon ElderServe’s request, the district ment, as the family court intimated that received a report for investigation concern- court ordered Mayord to appear and to pro- after an annulment it would lack jurisdic- ing an approximately 80-year-old man and duce information and documents relating tion to divide assets — misappropriated or a 30-year-old woman. This was the third to her misuse of Ruisseau’s funds. Mayord otherwise. This would leave Ruisseau in the

BENCH & BAR | 37 features: ELDER LAW

untenable position of abandoning claims to The current concern of the Kentucky age has become so imbecile his premarital property or being compelled Supreme Court was the prevalence of elder or unsound as to render him to institute a separate civil suit to reclaim abuse and exploitation. The fleecing of older incompetent to manage his his life savings and premarital property. citizens has become a matter of profound estate. Consequently, ElderServe amended its public concern. Financial exploitation of petition to seek a divorce, knowing that the elderly, in particular, was an underlying The Johnson Court based its decision to such an action was not permissible under consideration in the instant case. bar guardian-initiated divorce in part on Kentucky law.3 Thus, in order to unshackle this statute, holding that all such persons Ruisseau from his abuser, we had to change Also in the 1940s, Kentucky law reflected were incapable of making known to a court Kentucky case law circa 1943, a precedent society’s negative view of the disabled by or committee (guardian) whether to con- 8 nearly as old as Ruisseau himself. considering those of “unsound mind” to be tinue or dissolve their own marriages. Our characterized alongside “lunatics,” “idiots,” society has evolved regarding how we view HISTORY OF and “imbeciles.” Kentucky Statutes Chapter the capabilities of those with mental and JOHNSON CIRCA 1943 67, Article I, § 2149 (recodified to KRS developmental disabilities, and Kentucky’s For over 80 years, guardians in Kentucky Chapter 387 in 1942) defined a person of guardianship statutes reflect this evolution. were governed by the precedent in John- unsound mind as: Guardians in the Commonwealth must son v. Johnson, 170 S.W.2d 889 (Ky. 1943). now encourage wards to participate, to the [A]n idiot, lunatic, one who In Johnson, a committee (predecessor to a maximum extent of their abilities, in deci- from confirmed bodily infir- 9 guardian) sought to dissolve the marriage sions that affect them. mity is unable to make known of its ward by filing a petition for divorce to others by speech, sign or NEW LAW CIRCA 2021 on the ward’s behalf. In affirming the deci- otherwise his thoughts or sion to dismiss the divorce petition, the In Brooks by ElderServe, Inc. v. Hagerty, desires, by reason thereof is Johnson Court stated, “[A] divorce action 614 S.W.3d 903 (Ky. 2021), the Kentucky incompetent to manage his is so strictly personal and volitional that Supreme Court overruled Johnson’s strict estate, or one whose mind it cannot be maintained at the pleasure of prohibition against guardian-initiated because of an infirmity or old 10 a committee [guardian], even though the divorce. The Court based its ruling largely result is to render the marriage indissoluble on behalf of the incompetent.”4

The Johnson Court effectively rendered guardians without authority to petition for dissolution of marriage on behalf of their wards, no matter the circumstances under which the marriage occurred nor how criminal or abusive the conduct of the competent spouse.5 The Johnson precedent created an immense hardship on guardians and their wards. The Court acknowledged the burden this might cause stating, “It may be that in some cases a hardship will be worked by the conclusion we have reached … but stability of the marriage relation is a matter of public concern and . . . its continuation or dissolution should not be dependent on the pleasure or discretion of a legal representative.”6

The stability of marriage was of paramount consideration when Johnson was decided. Today, the legal bias in favor of the preservation of marriage has been loosened. This shift became evident when state legisla- tures started amending their divorce laws to allow no-fault divorce, as the Kentucky legislature did in 1972.7

38 | JULY/AUGUST 2021 on today’s guardianship statutes which are The Court offered further explicit proce- LESSONS LEARNED far more comprehensive than the earlier dural guidance. The guardian must petition While there is no fairytale finish to Ruis- law. Critically, the current guardianship the district court for a determination as seau’s tale, there has been some legal statute imposes an affirmative duty on to whether a divorce is in the ward’s best and equitable justice. Ruisseau is safe in the guardian to “assure that the personal, interest. During the hearing, wards should institutional care, separated both fiscally civil, and human rights of the ward are participate to the maximum extent of their and physically from his abusive spouse. protected[.]”11 This statute simply did not abilities, including sharing their wishes 15 He had the privilege of testifying in the exist in the 1940s. The Court held that the about the marriage directly with the court. district court with jurisdiction over his expanded guardian duties, coupled with a The district court should allow the com- guardianship and sharing his strong desire more complex elder law environment, made petent spouse to offer evidence as to why 12 to quit this marriage. Some of Ruisseau’s Johnson no longer viable. the dissolution of marriage would not be assets have been recovered from financial in the ward’s best interest. Additionally, the institutions, and from several of Mayord’s Although Kentucky lacks a statute explicitly district court may appoint a limited guard- boyfriends. Most importantly, Kentucky permitting guardians to initiate divorces on ian to represent the ward, if the petitioning law now permits guardians to protect the behalf of their wards, the Court now allows guardian would personally benefit from the 16 personal, civil and human rights of their such divorces under certain circumstances. ward’s divorce. If satisfied, the disability wards, as required by statute.18 As of April The Court noted that the power to divorce court should authorize the guardian to file 27, 2021, Ruisseau became the first person the ward from a competent spouse should an action for dissolution of marriage with 17 under guardianship in Kentucky to be not lie solely with the guardian. Guardians the family court. granted a divorce pursuant to this new law. must first get approval from the appropriate district court before seeking to dissolve With these procedural safeguards in place, 13 Kentucky’s former case law was in confor- a ward’s marriage. The Court analogized the Brooks Court brought the Common- mity with nearly every other state’s laws this requirement to guardians seeking per- wealth forward and justice could be served. at the time Johnson was handed down. In mission to make certain personally invasive Those wards whose guardians believe its 2021 opinion, the Kentucky Supreme health decisions on behalf of their wards, divorce is appropriate can now seek such Court brought our Commonwealth for- for which the guardian must obtain prior relief. 14 ward to join the minority of states who court approval. Critical to this issue is have changed their laws to reflect modern the fact that that district courts rendering social considerations, the role of guardians, guardianship determinations retain exclu- and the empowerment of wards. sive jurisdiction over these cases.

ABOUT THE AUTHORS ENDNOTES SHARI POLUR , of Polur Elder Law in Louisville serves as 1 See KRS 457.100. chair of University of Kentucky’s annual Elder Law Seminar, 2 Commonwealth v. Toney (19-CR-002867). and serves as vice chair on the National Academy of Elder 3 Brooks by ElderServe v. Toney (19-CI-501173). 4 Id. Law Attorneys federal advocacy committee. She is the past 5 See Brooks v. Hagerty, No. 2019-CA-001589- chair of the KBA’s Elder Law Section. OA (Ky. App. 2019); Order Denying Extraor- dinary Writ at 7. DAVID EHSAN is an associate attorney at Traughber Private 6 Johnson, 170 S.W.2d at 890. 7 See KRS 403.170. Wealth Law, LLC. He focuses his practice on elder law, 8 Johnson, 170 S.W.2d at 890. special needs law, estate planning, estate and trust adminis- 9 See KRS 387.640(2). tration, and guardianship. He received his B.A. from Indiana 10 Id. at 907. University and his J.D. from Thomas Jefferson School of Law. 11 See KRS 387.640(1). 12 Brooks by ElderServe, Inc., 614 S.W.3d at 914. Ehsan is admitted to practice law in the State of California 13 Id. and Commonwealth of Kentucky. He is the past chair of 14 Id. (citing KRS 387.660(3)). the Kentucky Bar Association’s Elder Law Section. Also, 15 Id. (citing KRS 387.640(2)). he is an active member of the National Academy of Elder 16 Id. 17 Id. Law Attorneys. In addition, he is a board member of Zoom 18 See KRS 387.640(1). Group, a nonprofit in Louisville, which provides individuals with disabilities opportunities to work in their community.

BENCH & BAR | 39 COLUMNS Staying Connected for Mental Health

BY MEGAN P. KEANE, YLD CHAIR

rior to the commencement of my mental wellbeing. It has been no easy feat. tenure as chair of the Young Lawyers While exercising, eating healthy, or med- PDivision (YLD), I imagined that my itating may have improved some people’s first address to Kentucky’s young lawyers mental health, others sought mental refuge would be a celebratory invitation to join in reading, binge watching a favorite show, in networking events, collegial gatherings, or picking up a new hobby. Yet, despite and service opportunities. After all, the any newfound interests, I, like most others, YLD has meant so much to me because of yearn for the day when we can step back the endless opportunities to engage in our into the courtroom, conference room, and community. I never expected that we would convention centers and shake hands or give because we do not want to show weakness still be in the midst of an over year-long each other hugs without worrying about or vulnerability to our opponents. As a bar global pandemic. While the preceding year jeopardizing the health of others. association, we need to remove any notion was full of challenging discussions regard- that focusing on our own mental health is a ing masks, quarantining, and vaccinations, We have all been told, time and time again, weakness. If anything, working on improv- most of us now face an even more diffi- that a career in the legal profession puts ing our mental health should be viewed cult quandary in moving forward with our us at a higher risk for substance abuse, as a strength—something that should be lives. With health guidelines evolving and depression, anxiety, and suicide. There is applauded. How can we best serve our cli- changing at colossal speeds, we are all pon- no question that the adversarial nature of ents if it comes at the detriment to our own dering the timing of our return to normal. our profession, the desire to win, and our health? Assessing whether to visit friends, family, inherent perfectionism contribute to these and colleagues poses a potentially harder risks. And, despite being able to articulate As we attempt to navigate this new mental toll as we crave a sense of normality and effectively advocate on behalf of our post-lockdown era, let us continue to place and an end to pervasive isolation. The silver clients, lawyers often struggle with identi- mental health at the forefront of our well- lining, of course, is that attorney wellness fying or expressing a need for supporting being. We need to support our colleagues, has become of paramount importance to their own mental health. especially now, when it has been so long me, as well as the Kentucky Bar Association since we have all been together. Reach out and the legal profession as a whole. People tend to shy away from seeking to your friends and colleagues, even if it mental health treatment for a number seems like it has been too long to do so. We Litigating entire cases from your home or of reasons, including stigma, fear, shame, have all felt the negative effects of isolation. office has become the norm. I can person- inadequacy, unfamiliarity, distrust, and a Some even feeling lost or forgotten. So, let ally attest that it is not easy to quarantine general misunderstanding of its effective- your colleagues know that you are think- at home with a seven-year-old and manage ness. I can affirmatively say I have been one ing about them in these times. Encourage practicing law. To keep sane, I utilized my of these people. As lawyers, some of the yourself and each other to get involved time focusing on my family, health, and hurdles may seem even harder to surpass in something that perpetuates a sense of

40 | JULY/AUGUST 2021 YLD EXECUTIVE COMMITTEE 2021-2022 community, whether that is your child’s school, your local bar association, or your favorite YLD OFFICERS non-profit. These types of opportunities will help you stay engaged, lessening that feeling of disconnection. I know without these groups, I personally would feel more secluded. Keep Chair: in mind that in addition to furthering your own wellbeing, most of these organizations are Megan P. Keane adapting to the changing times and they need your help now more than ever. Vice Chair: Elizabeth Combs My service to the YLD, even during this very difficult year, has truly been a labor of love. Immediate Past President: It has allowed me to stay connected with my fellow young attorneys and discuss issues that Miranda D. Click are facing the legal profession. Although the pandemic prevented us from physically being together, the YLD has fully embraced the virtual world. There are numerous opportunities Chair-Elect: to plug in and gain a sense of community. I hope that you will consider either continuing or Edward “Lee” Metzger III for the first time getting involved in the YLD. My service to this wonderful organization has undoubtably helped me through this challenging year. YLD DISTRICT REPRESENTATIVES It is my privilege to be your chair. Please do not hesitate to reach out to me at District 1: District 2: [email protected] if you are interested in getting involved in the YLD. Cheers to a Patricia Estes Joye Beth Spinks happy and healthy bar and I look forward to seeing you all in person very soon. District 3: District 4: ABOUT THE AUTHOR Brittany Riley Kristen N. Cody MEGAN P. KEANE is an attorney with the law firm of Dzenitis District 5: District 6: Newman, PLLC, where she practices medical malpractice defense Kyle Bunnell Elivia Rabe and business litigation. She is a Louisville native and received both District 7: her bachelor’s degree and J.D. from the University of Louisville. Don Combs She also studied abroad during law school taking classes in both Ireland and Wales. She enjoys serving the community through engagement in local, state, and national boards and organiza- LARGE REPRESENTATIVES tions. She is currently the Chair of and has been a member of the Sarah McKenna John Weber Young Lawyers Division Executive Committee since 2014. She also serves as the vice president of the Saint Athanasius Booster Christine Stanley Olivia Amlung Club and the third vice president of the Friends of Zoo (Lou- Tina Nance Katee Neltner isville) Board. She has been a delegate to the American Bar Association Young Lawyers Janet Luo Seth Fawns Division House of Delegates and serves in various other leadership roles in the ABA. She also has a seven-year-old son Levi who she loves to coach and watch play sports. Carlin Conway Lexy Gross Jack Phillips Kennedy Slusher Chapin Schumann Frank Schultz

LAW SCHOOL AFFILIATES UK Rep: Corey Samples U of L Rep: Jesten Slaw Chase Rep: Elizabeth Allender

BAR ASSOCIATION AFFILIATES Bowling Green/Warren Co. Bar Assn: Leah Morrison

Fayette County Bar Assn: Sam Reinhardt

Louisville Bar Assn: Ashlea N. Hellmann

National Bar Assn: Calesia Henson

Northern Ky Bar Assn: Kenneth Foisy BENCH & BAR | 41 COLUMNS

From Out of Global Disruption, Professor Jennifer Kinsley Chase Teaches a Different Kind of Practice

ust months into a pandemic that handle a hypothetical case (a non-compete “I’ve also learned to make use of technol- forced lawyers into on-screen prac- dispute between a hair salon and a stylist), ogy to meet the growing demands of digital Jtices and to wonder what might be analyzed and adapted traditional skills to a practice. I’m a huge fan of the Tiny Scanner ahead, a Chase College of Law professor remote practice setting, such as client inter- app that turns a cellphone into a portable nimbly assembled a first-of-its-kind course viewing, motion drafting and hearings, and document scanner, and I invested in Adobe to teach students the best remote practice networked with lawyers in Northern Ken- Pro, the most important piece of software skills that are likely to remain in demand tucky and around the nation on what they a work-from-home lawyer needs today, for after the worst of times ends. were learning. converting files to editable and searchable documents. With no course template to follow, Pro- “There weren’t any lectures in this course,” fessor Jennifer Kinsley turned to her own Professor Kinsley says. “This was a very What Some Students experience in remote practice through pro hands-on experience, where the students Say about the Course bono work, the advice of judges from their spent most of their time learning by doing.” From post-course evaluations: online hearings, courts’ instructions for As she explains: lawyers’ remote appearances and her obser- • WHAT IT TOOK TO BRING THE COURSE • WHAT IS EXCITING: vation of real-time Zoom hearings. The It will be easier to schedule TO REALITY: “I relied heavily on my own result: the spring semester course, Remote “for this type of practice if experience in remote practice, which pre- Representation. your client doesn’t have to dated the pandemic. Since joining the find childcare or take off Chase faculty in 2012, I have worked on As might be expected for a course centered work, etc. I now feel confident a number of pro bono legal matters from on online practice skills, Professor Kinsley in knowing what technology my remote home office and have learned so taught fully online and sidestepped tradi- and spaces at home I would much about what works and what doesn’t tional classroom constraints. Students set need to practice remotely. through real-world trial and error. ” up hypothetical remote-practice firms to

42 | JULY/AUGUST 2021 “As a member of the Kentucky Depart- “The legal profession is structured to do all What Some Students ment of Public Advocacy Commission, I of this in-person, and, consequently, law Say about the Course also had access to lots of data about how schools train lawyers to represent clients From post-course evaluations: courts across the commonwealth were in-person. But these skills can easily trans- operating, and anecdotal statements about late to an online environment, provided • WHAT IS CONCERNING: the challenges lawyers were facing in rep- that students and lawyers are intentional Losing the person-to-person resenting clients through computer screens. about what they are doing. Sure, building “interaction doesn’t necessarily I also spoke at length with Chase Professor a relationship with a client through a com- scare me, but it is something that Bob Furnier, who teaches online legal tech puter screen or in text messages is tough, I am afraid if I were to go into courses and is a great resource for all things but acknowledging that gap and addressing remote practice I would miss. ” tech-related.” it early on can go a long way in establishing trust. • WHAT TEACHING THE COURSE “But I did not rely strictly on my own expe- REVEALED ABOUT THE NATURE (AND “In many ways, representing clients in an rience in designing the class. I connected FUTURE) OF LAW PRACTICE: “From online hearing is somewhat easier than with numerous judges to study their remote teaching this class, I learned that the chal- standing up in court, because documents practices and attended multiple Zoom lenges of remote representation are not and information are literally at your court sessions to observe what lawyers were all that different from the challenges of fingertips.” doing right and what they could do better. I in-person representation. Regardless of the looked at court instructions on how lawyers format, lawyers need to protect client con- • HOW THE COURSE FITS THE CHASE should prepare for online court. The Second fidentiality, to form trusting relationships TRADITION OF PRACTICE-READY GRAD- Circuit in New York City has been a real with clients, to organize their time wisely UATES: “In their final self-evaluations, leader in this regard. and to present a client’s case in an effective many students in the class reported that and meaningful way. they feel ready to take on clients on day one while working from home. Several students indicated that they now see what is possible in terms of the flexibility and economic efficiency offered by remote practice. The class really opened their eyes to not only the challenges of remote practice, but the opportunities it presents, as well.”

While the course emerged from a pandemic, it will be offered again in spring 2022. As fitting for a course on remote representation, it will be taught online by an adjunct professor who practices law in the San Francisco Bay area.

What Some Students Say about the Course From post-course evaluations: • KNOWLEDGE GAINED: I feel I have improved “my ability to reach out and connect with clients through more impersonal methods, such as emails or phone calls.”

BENCH & BAR | 43 COLUMNS

College Holds Commencement Ceremony for UK Rosenberg Law Classes of 2020 and 2021

n Friday, May 14, the University 2021, which included organizing virtual Oof Kentucky J. David Rosenberg symposia; partnering with the college to “What makes the Rosenberg College of College of Law held a commencement establish a student-led advisory board on Law so special is the hearts of the people ceremony to honor the Class of 2021 as diversity, equity, and inclusion initiatives; in it,” Block said. “We’re not just colleagues; well as the Class of 2020, which did not and participating in moot court and trial we are friends. We put each other first and receive a commencement ceremony last competitions. our work second. We genuinely care about year because of COVID-19 safety restric- each other, not because we are lawyers but tions. Hundreds gathered – distanced and “Through all of these activities, the Class of because we are decent people. …It’s not masked – at UK’s Memorial Coliseum for 2020 and the Class of 2021 demonstrated what you do but who you do it for that an in-person celebration, following a year outward focus that will continue to serve really matters.” marked by in-person and online classes and them as they begin their legal careers,” numerous virtual events. All graduates from Davis said. “We wish you the best and we Block recognized his mom, dad, and sister in the Class of 2020 were recognized in the look forward to watching all of you, tomor- his remarks. “I believe the greatest achieve- commencement program, and nearly two row’s leaders, have meaningful impact on ment today doesn’t belong to us — the ones dozen graduates from the class returned to the law, the profession, and the world wearing the caps and the gowns,” he said. campus to attend the ceremony. beyond.” “No. The greatest achievement today belongs to those who put us in the caps and gowns.” “We have just completed a year like no Barrett Block of Lexington, provided other in our lives,” said UK Rosenberg Law remarks as the highest-ranked student in Allie McNamara of Nashville, the high- Dean Mary J. Davis, who listed the myriad the Class of 2020. est-ranked student in the Class of 2021, accomplishments of the classes of 2020 and provided remarks on behalf of her class.

44 | JULY/AUGUST 2021 “In August 2018, we could not have imag- interesting place for faculty and students the two classes completed over 2,150 hours ined the journey we would take. Over the alike. The recipients received an engraved of pro bono service to the public. next three years, we would experience three silver julep cup presented by Dean Davis. buildings, two names, and one global pan- Students selected Blanche Bong Cook, demic,” McNamara said, referring to spaces The Class of 2020 Order of the Coif Robert E. Harding Jr. Associate Professor temporarily used by the law school during inductees were recognized as well as the of Law, to deliver commencement remarks the renovation and expansion of the law students in the Class of 2021 who are in on behalf of the faculty. building and the college’s name change in the running for nomination and election December 2019. In March 2020, all classes to the Order of the Coif. The top 10 per- “These people in the front have won,” Cook transitioned to online because of the global cent of the class will be inducted once all said about the students seated on the floor pandemic. grades are final. Students from both classes of the auditorium. “They have won. They were recognized with the Pro Bono Award have achieved the victory. Despite all the “We were all sent home and forced to do for completing at least 50 hours of inde- trials and tribulations, they won. And they law school from home — something that pendent, law-related public service prior not only won for themselves, but they won had never been done before,” McNamara to graduation. Collectively, students from for all of you.” recalled. “…We finally got back in the building and it all culminates here at an in-person commencement for which I am completely and totally grateful. While the world appeared to stop, the Class of 2021 did not. We persevered and succeeded.”

The faculty selected Aaron Meek of Lex- ington, as the 2020 Faculty Cup Recipient and Maya S. Marshall of Atlanta, as the 2021 Faculty Cup recipient. The Faculty Cup recognizes a graduating student whose endeavors, both in and outside of the classroom, made the law school a more

BENCH & BAR | 45 EFFECTIVE LEGAL WRITING Embracing Confident Writing BY SARA L. OCHS How can I convince a court to rule in my favor when I’m not as qualified, MAKE YOUR OWN ARGUMENTS. intelligent, or experienced as my opposing counsel? How do I make a Authority is critical for any sound legal judge believe in me when I’m not sure I believe in myself? argument. Yet, an over-reliance on author- These are questions that afflict most attorneys at some point in their careers. From recent ity is a clear sign of unconfident writing. law school graduates to experienced litigators, almost all of us have felt that we will be Unconfident writers often allow their exposed for being less qualified than our achievements suggest. This insidious feeling, sources to make their points for them conceptualized as “imposter syndrome,”1 can often cause us to question our arguments, through lengthy block quotes or cum- our writing styles, and even our self-worth. And these imposter feelings can frequently bersome case summaries, without clearly manifest in unconfident writing. stating their arguments in their own words. Judges recognize that sometimes they may Unconfident writing is easily noticeable and especially damning to your client. Of course, fully skip over block quotes while review- 3 a judge is unlikely to rule in your favor when your briefs reflect your own doubts or mis- ing pleadings, and case summaries—while givings about your arguments or your client’s position. The following three tips will help helpful if used concisely—can be distract- prevent imposter syndrome from permeating your work and make your writing more ing and wasteful if done incorrectly. Instead, confident and assertive. to render your writing more confident, AVOID PASSIVE VOICE. DON’T BURY THE LEDE. focus on making your own arguments in your own words. Direct the court to the As Stephen King—one of the most prolific Often in life, when we are filled with self- outcome you are seeking through clear con- writers of our time—noted, passive voice doubt about asking for a favor, we will lead clusions and explicit requests. Use authority appeals to “timid writers,” because “the pas- with a long, tedious explanation, saving 2 to support your arguments but quote spar- sive voice is safe.” Indeed, passive voice—in our actual request for relief until the very ingly and keep summaries of analogous which the emphasis is placed on the object end, by which point we’ve usually lost our cases concise and to the point. of the sentence being acted upon (e.g. a audience’s full attention. The same is true duty of care was breached by the defen- for unconfident writing. To make your While all of us may feel like imposters dant), rather than the subject doing the legal writing appear more confident and every now and then, we don’t need to— acting (e.g. the defendant breached his duty assertive, put your conclusions front and and we shouldn’t—allow these feelings to of care)—allows unconfident writers to center and then explain them. Start each invade our writing. By following these tips, make their point in the manner in which its new argument, point, or paragraph with you can strengthen your writing and advo- name suggests: passively. By using passive a clear thesis sentence that iterates your cate for your client as a confident litigator. voice, authors can vaguely skirt around their position on the issue and connects back conclusions, while active voice provides for to the overall request you are making on much clearer and commanding writing. In your client’s behalf. By emphasizing your ENDNOTES other words, passive voice conveys ambi- conclusions and requests for relief at the 1 Pauline Rose Clance & Suzanne Ament Imes, guity and cautiousness, while active voice beginning of your brief or motion, at the The Imposter Phenomenon in High Achieving demonstrates clarity and assertiveness. top of each paragraph, and reiterating these Women: Dynamics and Therapeutic Interven- throughout your pleading, you will confi- tion, 15(3) Psychotherapy: Theory, Research & Practice 1 (1978). dently drive your points home. 2 Stephen King, On Writing: A Memoir of the Craft 110 (2000). ABOUT THE AUTHOR 3 Judge Alex Kozinski, U.S. 9th Circuit Court of SARA L. OCHS Appeals (Pasedena): Overquoting, LawProse is an Assistant Professor of Law at the University of (Dec. 25, 2014), https://www.lawprose.org/bry- Louisville, Louis D. Brandeis School of Law, where she teaches lawyering an-garner/videos/judges-lawyers-writers-writ- skills. Before joining the faculty, she earned her J.D., summa cum laude, from ing/judge-alex-kozinski-u-s-9th-circuit-court- of-appeals-pasendena-overquoting/. Loyola University New Orleans College of Law, clerked for the Honorable Carl J. Barbier on the United States District Court for the Eastern District of Louisiana, and practiced as a civil litigator in New Orleans.

46 | JULY/AUGUST 2021 LAW PRACTICE MANAGEMENT

COMING SOON TO A LAW PRACTICE NEAR YOU: A New and Improved Law Practice CommitteeBY AMY D. CUBBAGE

he KBA’s Law Practice Task Force tools in six specific areas: (1) matter Finally, though not part of the Commit- was first organized approximately management; (2) office management; tee’s evaluation of insurance resources, we Tthree years ago as part of the KBA’s (3) insurance; (4) remote technology; (5) are pleased to announce that certain bar strategic planning to assess the state of law electronic discovery; and (6) communica- members will soon have the opportunity to practice management in Kentucky, and to tions and marketing. The Committee is also obtain health insurance through an associ- help make recommendations regarding evaluating miscellaneous practice manage- ational plan. The contours of that plan are ways the KBA can better support you, our ment tools falling outside of these defined still being worked out, but we know health members. The strategic planning process areas, such as skip tracing tools. We will insurance is both a necessity and a major made clear that the need for practice sup- actively solicit proposals from vendors in expense, one that can be difficult for a solo port is particularly relevant for our solo and these areas, and select vendors offering the or small firm practitioner to bear. Watch small firm practitioners, who make up close tools our membership need, at a negotiated for an announcement later this year regard- to 90% of our membership. discount. ing specific eligibility criteria and deadlines for enrollment. In addition to its other work, the Task Here is where we need your help. While Force has used this column since that time the committee represents a broad cross-sec- The new and improved Law Practice Com- to bring you practical information we think tion of KBA membership, you as members mittee is excited to bring its expanded could help you in the day-to-day of your are the best source of information about mission of bringing our members dis- practice. Now, we are using this space to what you need to help make your prac- counted tools to better manage your law announce that the Law Practice Task Force tice more of a success. We are soliciting practices. Be on the look out for more is now converted into the permanent Law proposals from vendors in each of the sub- announcements in the KBA’s monthly Practice Committee. ject areas listed above, but we would like eNews, as well as this Bench & Bar column. to make sure the proposals selected meet As part of its ongoing work, the Commit- your most pressing needs. To that end, we ABOUT THE AUTHOR tee is assuming the responsibility of the will be sending a short survey to member- AMY D. CUBBAGE is General Counsel to former Member Services Committee. In ship in the next few weeks. Please take a Governor Andy Beshear. She previously the past, the Member Services Committee few moments to fill out that survey when served the administration as Deputy was responsible for approving vendors to you receive it. Our committee members Secretary and General Counsel in the offer preferred vendor discounts to KBA will use your responses to help guide our Kentucky Labor Cabinet. Prior to join- members. Given that the Law Practice solicitation and review of proposals from ing the Beshear administration, she spent Committee’s work includes assessing the vendors. We want our selections to be as 23 years in private practice in Louisville, types of practice management resources helpful as possible, so your input is vital. where she focused on constitutional and Kentucky lawyers need, the Board of Gov- commercial litigation as well as labor and ernors thought it made sense to fold that Also, if you have a practice tool you think employment law. Cubbage is a member of work into the greater mission of the Law we should consider, whether it falls into one the Board of Governors of the Kentucky Practice Committee. of the defined subject areas above, please Bar Association, where she currently send the name and a brief summary of that serves as president-elect. Amy received The Law Practice Committee is excited tool to our Committee chair, Steve Embry, her B.A. summa cum laude from George- about the addition to its mission, and is at [email protected]. Testimonials town College and her J.D. summa cum actively seeking vendors to help meet from satisfied Kentucky bar members are laude from the University of Kentucky J. unmet practice management needs among our best source of information about pos- David Rosenberg College of Law. You can the membership. In order to better assess sible practice management tools. email Amy at [email protected]. just what those unmet needs are, the Com- mittee is evaluating practice management

BENCH & BAR | 47 SHOP TALK

Take Care: Ransomware, Part I

s seen on television, cyber crime and extortion are moving Forbes Magazine2 noted in March 2021 that ransomware operators down to the consumer level, hitting small businesses as are targeting law firms. The motivation is, as always, money and Awell as large enterprises. Styled “Ransomware,” this attack avenues to money. It noted the value of confidential data, from is malware like a computer virus that has been downloaded to corporate data, ideal for investing ahead of public announcements, your system, encrypts all of your files, and shows a ransom note to individual tax returns, perfect for identity theft fraud. It cited the that you will get the decryption key if you pay up. Using bitcoin or American Bar Association’s TechReport 2020:Cybersecurity, which similar digital tokens, it is difficult, if not impossible, to trace. If you noted significant problems with cyber security across law firms, and don’t pay, at best you may lose use of those files. At worst, critical, the accompanying potential ethical risks for lawyers.3 confidential documents will be posted up on the Internet. Major businesses have been hit, and have paid millions to avoid critical The CISA Ransomware Guide, available for free download, is service disruptions from energy infrastructure (fuel pipelines) to meant to provide a resource on 1) “best practices” to prevent attacks medical systems (hospitals). and, when necessary, 2) a checklist to respond and recover from them.4 The pessimists in cyber security opine it is not a matter of “if ” As it is a serious risk for law firms, we’ve summarized infor- but one of “when” a cyber security breach will happen, so response mation on it from the Cybersecurity & Infrastructure Security and recovery planning is essential. Agency (CISA) (https://www.cisa.gov/) of the U.S. Department of Homeland Security. The explosion in ransomware attacks, tied The 16-page guide is ordered as listed below. It begins with a focus to its profitability, has made CISA’s guidance and resources on this on response and recovery as a primary protective measure, implying especially valuable. See https://www.cisa.gov/ransomware 1 it’s only a matter of when, not if.

48 | JULY/AUGUST 2021 Things to do to be prepared for • Regularly assure updates to your software, including all a ransomware/malware attack: security patches. Part 1: Ransomware Prevention • Regularly check that your systems are safely set up and Best Practices configured with all security features enabled, such as disable ports and protocols that are not being used for a business Be Prepared purpose (e.g., Remote Desktop Protocol [RDP]). • Maintain offline, encrypted backups of data • Verify proper use practice for Remote Desktop and any (and regularly test them for accessibility) other services that connect into your systems. Maintain preconfigured backups of your operating • The Guide continues with sections for preventing infection, of system and related software for a quick rebuild of which phishing attacks still remain a major threat: your systems Have Phishing Protections in place; • Maintain backup hardware to let you rebuild your system quickly in event of compromise (and test it have Anti-virus and Anti-malware systems in place to see it works with your system) and updated watch Out for Any Third Parties that Connect, Including • Have separate backups of your programs available, if Employees Who Bring Stuff In To The Office possible, in case there are issues with restoring those • “Create, maintain, and exercise a basic cyber incident The Guide details further protections, some of which are more response plan and associated communications plan technical and may require you use a service vendor to assure proper that includes response and notification procedures use. But the review of these gives you a broader idea of the dangers for a ransomware incident” of malware generally and ransomware specifically. • There are resources for building such a plan Part 1 concludes with a listing of no-cost resources to help with available online, and they note the Public Power Cyber these issues, including contact emails, and a quick reference guide Incident Response Playbook for further information on ransomware issues, at page 10. (https://www.publicpower.org/system/files/ Part 2, the Ransomware Response Checklist, will be discuss in our documents/Public-Power-Cyber-Incident- next column. But you don’t have to wait, as you can review it at page ResponsePlaybook.pdf) 11 of the Guide, at https://www.cisa.gov/sites/default/files/publi- • And the included Ransomware Response cations/CISA_MS-ISAC_Ransomware%20Guide_S508C.pdf Checklist, noted below, can guide that effort. To note: its first item is that if infected with ransomware, determine Infection Vectors – Prevention which systems were hit and isolate them immediately. A ransomware • Check your system for vulnerabilities, especially those hit is bad business, for us and everyone. that connect to the Internet. CISA offers no-cost Be careful out there. vulnerability assessment tools at: https://www.cisa.gov/ cyber-resource-hub 5 ABOUT THE AUTHOR • These assessment tools can : MICHAEL LOSAVIO teaches in the Department of Justice Admin- • scan for vulnerabilities in your system, like istration and the Department of Computer Engineering and unsecured ports and out-of-date security patches; Computer Science at the University of Louisville on issues of law, • assess your staff for their responses to phishing society and information assurance in the computer engineering attacks (it has happened to too many law firms and justice administration disciplines. His focus is on law and and small businesses); social sciences as they relate to computer engineering, evidence and digital forensics. Courses include digital and computer crime, • guide a Risk and Vulnerability Assessment transnational cybercrime and legal issues with data mining and of your operations; information assurance. He holds a J.D. and a B.S. in mathematics • guide a Cyber Resilience Review of your from Louisiana State University. operations; ENDNOTES • guide a review of “External Dependency 1 https://www.cisa.gov/ransomware accessed 28 May 2021 Management,” which examines the external 2 https://www.forbes.com/sites/forbestechcouncil/2021/03/12/ransomware- attackers-take-aim-at-law-firms/?sh=439673fa13e1, accessed 28 May 2021 systems you may connect to, such as a client’s 3 https://www.lawtechnologytoday.org/2020/10/techreport-2020-cybersecu- operations, and the risks presented by rity/ , accessed 28 May 2021 those connections; 4 https://www.cisa.gov/sites/default/files/publications/CISA_MS-ISAC_ Ransomware%20Guide_S508C.pdf , accessed 28 May 2021 • and many others. 5 https://www.cisa.gov/cyber-resource-hub , accessed 28 May 2021

BENCH & BAR | 49 LAWYER WELLBEING

Wellness Is More Than the Absence of Impairment BY ERIC Y. DROGIN Welcome to the first installment of the Bench & Bar “Lawyer program involving assistance for impairment that may result from Mental Health and Wellness” column! addiction to intoxication or drugs, chemical dependency, substance abuse, mental disease, mental disorder or defect, psychological or Of course, this isn’t the first time we’ve had an opportunity to air emotional illness that impairs, or may foreseeably impair, a person’s this topic in print. ability to practice law or serve on the bench.” Its mission and purpose are “to address impairment or potential impairment issues “Lawyer Wellness” was examined three times over in the recent within the Kentucky legal community and to offer confidential May/June 2021 issue, with excellent offerings on coming to grips assistance to those who are affected.” with lawyer suicide, gauging the impact of COVID-19 on lawyer mental health, and developing legally relevant perspectives on the “Impairment.” “Addiction.” “Illness.” KYLAP was one of the first myths and realities of perfectionism. Lawyer mental health and programs—and is acknowledged nationwide as one of the very best wellness has been a major focus of Immediate Past President Tom programs—for assisting those of us who already need a great deal Kerrick’s term, so by the time spring came along, Bench & Bar of help. This is distinct from the LAW initiative’s primary focus on wasn’t broaching some new and exotic topic for our members. This ensuring, to the extent possible, that we don’t wind up needing that was more like a victory lap for the KBA’s Lawyers Advocating Well- help in the first place. Overall, wellness is more than the absence ness (LAW) initiative … although there was certainly no guarantee of impairment. There is strength, comfort, and joy to be found in at the outset that there would be much of a race. improvement as well as avoidance.

For one thing, weren’t there already resources in place to address Predictably, the KYLAP and LAW will share emphases and func- these issues? What we currently know as the Kentucky Lawyer tions from time to time. For example, neither one seeks to provide Assistance Program (KYLAP) has been going strong, in one guise mental health services directly, but KYLAP maintains a system or another, for decades. Peerlessly guided by its director Yvette for referring lawyers to treatment, while LAW serves as part of a Hourigan, KYLAP is described on its website as “a broad-brush Mental Health Collaboration Group that offers “Mental Health

50 | JULY/AUGUST 2021 First Aid” training so we can “reach out and provide initial support benefit of continuing legal education credit, among activities that to someone who may be developing a mental health or substance focus on such notions as meditation, yoga, mindfulness training, use problem.” KYLAP and LAW complement each other very nutrition, and—remember what life was like before getting your well. Neither would seek to replace the other. license?—sleep.

Was the KBA going to be able to come up with enough engaging LAW wasn’t a quick-fix, pandemic-bound undertaking. It was ideas and practical solutions to capture the hearts and minds of designed from the beginning to make a lasting difference in our our members when it came to lawyer mental health and wellness? lives, with an ongoing dedication of resources and a lasting com- Fortunately, this didn’t wind up being a problem at all. Clearly, Tom mitment to innovation. Current KBA President J. D. Meyer has had taken this concept a lot further than “I’d like to help people” already pledged to ensure that we can sustain our momentum. We when the time came to put LAW together as a going concern, and made a huge difference during unthinkably trying times. We’re he had the foresight to seek input not just from a diverse collection just getting started. of fellow lawyers, but also from individual non-lawyer colleagues and from other professional guild organizations. Our “Lawyer Mental Health and Wellness” column will support these efforts, with a focus not on overlapping notions of impair- Then came what could have been the most frustrating hurdle of all: ment, addiction, and illness, but rather on pursuing well-being as finding enough people to make it all happen. Consider, after all, a a free-standing goal. This is a positive, upbeat mission. The Bill lawyer’s typical mid-2020 professional checklist: of Rights featured in the Constitution of the Commonwealth of Kentucky refers explicitly to the “pursuit of safety and happiness.” (1) Try not to die. As we go about upholding this obligation on behalf or our clients (2) Try to meet with clients when you can’t meet with clients. and the populace at large, how about if we try to find some safety and happiness ourselves? Everyone who relies on us will benefit. (3) Try to earn fees when you can’t go to court. ABOUT THE AUTHOR (4) Keep trying not to die. ERIC Y. DROGIN is a Norton Healthcare Louisville Hospitals Med- (5) Try to meet a payroll when the clients you do have can’t pay ical Staff member with clinical privileges in adult psychology. He their bills. teaches on the faculty of the Harvard Medical School, where he serves as the Affiliated Lead of Psycholegal Studies for the Psychi- (6) Try to conduct what remains of your practice on a laptop atry, Law, and Society Program at Brigham and Women’s Hospital computer at your kitchen table while the rest of your family and participates in the Program in Psychiatry and the Law at the tries to work, go to school, and be entertained using the same Massachusetts Mental Health Center and the Forensic Psychiatry equipment in the same space. Service at Beth Israel Deaconess Medical Center. Proud to have been a Kentucky lawyer for over 30 years, Dr. Drogin is a former chair of (7) Try to remind yourself why it was so important not to die. the ABA Science & Technology Law Section and a former president of the American Board of Forensic Psychology. Please contact him Under these circumstances, how likely was it that counsel would be at [email protected] with your suggestions for lawyer mental health up for adding another item to this checklist? Specifically: and wellness topics. (8) Give away lots of time in order to help your colleagues—including your competitors—find a way to thrive personally and professionally, when chances are you’re barely getting by on your own. America’s Premier Civil-Trial Mediators & Arbitrators Online We needn’t have worried. Kentucky lawyers came out in droves to support this initiative, NADN is proud to partner with the National Defense and Trial Bar Associations and to staff the District Well-Being Com- mittees that were designed to ensure that LAW could succeed as an inclusive, grass- roots endeavor. Not just the “big” Districts. Every District.

View Bios & Availability Calendars for the top-rated neutrals in each state, as approved by local litigators When it comes to volunteering, there’s strength in numbers. LAW found itself with enough providers and participants to field a www.NADN.org significant array of lawyer mental health and www.NADN.org wellness opportunities. Kentucky lawyers Our free database was used by 9000+ law offices in 2020 to schedule over 100,000 mediations & arbitrations online can pick and choose, often with the added

BENCH & BAR | 51 BAR NEWS THE IMPACT OF THE 2020 PANDEMIC ON THE PRACTICE OF LAW IN KENTUCKY BY MICHAEL S. FORE

was a year of change for everyone. For the author, it candid, thoughtful responses on a wide range of topics related to the 2020was a time of professional realignment. For nearly 20 pandemic’s impact, access to justice, collegiality, and quality of life. years, I have practiced law in Richmond, Ky., as part of a typical The membership responded at a very high rate for an online survey, small-town civil practice. In the past few years, I took on some with over 11% of total statewide membership participating. Full part-time duties teaching undergraduate law courses at Eastern survey results and raw responses are available at www.kybar.org/ Kentucky University (EKU). In 2020, I began a transition to full- pandemicsurvey. time teacher and part-time practitioner. At the same time, the pandemic was realigning our world and the practice of law. The survey generated a huge amount of data, and members are encouraged to view the entirety of the results on their own. This To try to understand the impact on our shared profession, I article surveys just a few of the more notable patterns and highlights approached the Kentucky Bar Association (KBA) about the pos- from this study. sibility of conducting an online survey of bar members in early 2021 making use of EKU’s Qualtrix survey resources. My hope was to A COMMON EXPERIENCE learn about how the pandemic was changing the practice of law in No part of life was free from disruption by the pandemic and the Kentucky. I had my own questions about what worked and what practice of law was no different. Even as we begin the slow return didn’t work. I also wanted to create some sort of a historical record to jury trials in mid-2021, the practice is still adapting and far from of how Kentucky lawyers and courts had adapted to these historic finding its “new normal.” events. That the court system kept operating throughout 2020 was an impressive feat that was the culmination of no small effort by For the most part, responses to the survey were consistent across thousands of judges, lawyers, court personnel, and staff across the geographic and practice areas. Some of the notable outliers and Commonwealth. exceptions are mentioned later in this article. However, concerning the pandemic’s impact on practice, the state’s Bar really were, in the Personally, practicing during the pandemic was a great change. parlance of our time, “all in this together.” Gone were regular civil motion dockets and the associated collegiality with the local bar. Instead, court took place by video conference. Like many Bar Associations across the country, KBA’s Bar is, to be For most of 2020, client meetings were by Zoom, telephone, or delicate, distinguished and experienced. About 39% of the overall while separated by masks and a long conference table. Fist-bumps Bar membership has been practicing longer than 25 years. This replaced handshakes. Daily chats with courthouse staff, bailiffs, and distribution isn’t unusual and is consistent with nationwide trends colleagues were replaced by the occasional waive separated by a few for many professions. The demographics of the Bar are the result layers of plexiglass. We all lived these changes. of any number of factors, from Baby Boomer demographics and finances to changing ideas and notions about retirement. Survey Previously unheard-of ideas like social distancing, zoom court, and respondents generally mirrored the overall make-up of the Bar by video depositions have become part of the normal day-to-day for geography, age, and practice, meaning that the results give a mean- Kentucky’s legal community. This disruption is still being sorted out ingful and telling insight into the pandemic’s impact. daily in law offices and courtrooms throughout the Commonwealth as we return to normal in 2021. OVERALL BAR MEMBERSHIP

ABOUT THE SURVEY Male Female Total Admitted 2 years or less 681 590 1271 Survey results were collected over four days in January 2021. Bar members were sent the survey link by email twice during the Admitted 3-5 years 765 559 1324 survey period. Overall, the response rate from Bar membership Admitted 6-10 years 1545 1138 2683 was extraordinary. Over 2,300 members of the Bar took part in Admitted 11-15 years 1428 1029 2457 the anonymous online survey. Respondents included Bar mem- Admitted 16-20 years 1133 884 2017 bers from all areas of expertise in both public and private practice. Admitted 21-25 years 1218 790 2008 Similarly, responses came from across the Commonwealth, repre- Admitted over 25 years 5672 1864 7536 senting nearly every county and judicial circuit. Participants took about 10-15 minutes each to give insight into their experiences practicing during the pandemic. Kentucky Bar members provided Total 12442 6854 19296

52 | JULY/AUGUST 2021 OVERALL IMPACT Over 88% of Bar members agreed generally that their organiza- No survey was required to know that the overall impact of a tion or firm had provided them with the technology necessary to world-changing pandemic was negative. About 2/3 of respondents practice successfully during the pandemic. Over 93% of members statewide agreed that the pandemic had a negative impact on their agreed that technology was a key part of their practice now. While personal practice. However, considering the scope of the pandemic’s multiple different videoconference methods were used in 2020, reach and impact, this is probably a relatively, “good sign.” While Zoom was the clear winner. Before the pandemic, less than 10% courts were closed or moved online, law firms themselves were of practices ever used Zoom. Since the pandemic began, 90% of generally spared from lockdown orders. And, unlike some indus- attorneys have used Zoom on a regular basis as part of their practice. tries, most firms readily adapted to online work. By use of Zoom, Still, just over 50% of attorneys agreed that technology was a social distance, and staggered staffing, most firms and organizations source of stress in their practice. This number did not vary greatly continued to work and practice while some parts of the economy between the ages of different practitioners, meaning that everyone were generally shuddered. was equally frustrated at times by our new virtual norms.

The negative impact was slightly worse in rural areas (70%) versus Seventy-two percent of respondents reported participation in urban (62.5%). This rural/urban divide also showed up in outcomes court dockets conducted by videoconference since the start of the in terms of perceived access to justice, as discussed below. Due to pandemic. Of those who had participated in virtual dockets or reasons of infrastructure or some other factors, it appears that rural hearings, attorneys rated video dockets as follows: areas generally were harmed more than smaller cities or urban areas. Just as effective as in-person 36.41% By practice area, the criminal justice system appears to have suffered the worst. Over 81% of public defenders and 73% of prosecutors Not as effective as in-person 47.77% agreed that the pandemic had a negative impact on their prac- More effective than in-person 13.19% tice experience in 2020. It was a continuing trend across all areas surveyed that criminal practice attorneys had the worst of it both PLEASE DESCRIBE THE IMPACT professionally and personally during the pandemic. Without jury OF THE PANDEMIC OVERALL trials to force a conclusion to prosecutions, caseloads have grown and grown, slowing down and nearly overloading the system. In Negative (Your community) 51.5% the survey’s open responses defense attorneys bemoaned difficulties Somewhat negative (Your community) 38.1% in contacting clients while prosecutors lamented the inability to Neither Positive or Negative (Your community) 6.3% advance cases. Somewhat positive (Your community) 0.6% In terms of financial impact, about half of responding attorneys Positive (Your community) 0.2% agreed the impact was negative for their personal practice. Most Prefer not to answer/No Opinion or 3.2% everyone believed their personal practice fared better than other Not Applicable (Your community) attorneys and firms in their community. When asked about the overall financial impact on their communities as a whole outside of the legal system, the respondents’ views were nearly 90% adverse. Negative (A typical law firm in your community) 27.9% This isn’t surprising the pandemic of 2020 was an unprecedented Somewhat negative 47.3% economic disruption for everyone. Between illness, death, and (A typical law firm in your community) lockdowns, the disruption on the U.S. and world economies was Neither Positive or Negative unprecedented in recent times. 11.5% FINANCIAL IMPACT OF PANDEMIC (A typical law firm in your community) Many attorneys noted their firms or organizations were running Somewhat positive 2.0% “lean,” since the disruptions began. It appears that at some of these (A typical law firm in your community) efficiencies will carry forward to the future. About one-third of Positive (A typical law firm in your community) 0.4% firms indicated that they had or would reduce staffing going forward. While videoconference may achieve efficiencies, it is unclear Prefer not to answer/No Opinion or Not Appli- what the result will be for practices built on pre-covid business cable (A typical law firm in your community) 10.9% models. “I’M NOT A CAT.” Negative (Your firm) 20.1% Somewhat negative (Your firm) 29.9% A Texas prosecutor rose to notoriety when an errant Zoom “cat filter,” turned a routine hearing into a national meme. On the whole, Neither Positive or Negative (Your firm) 26.8% the Kentucky Bar’s transition to online practice appears to have Somewhat positive (Your firm) 8.3% been a good deal smoother than that. While no doubt the move to Positive (Your firm) 5.8% online court has led to its share of curious moments in the Com- monwealth1, the Bar on the whole appears to have adapted well to Prefer not to answer/No Opinion or the changing technological needs. Not Applicable (Your firm) 9.1%

BENCH & BAR | 53 BAR NEWS

Workers compensation was the notable exception. Unlike other Disagree (The pandemic has adversely impacted the areas, workers compensation appears to have benefitted, or at least access of citizens to the justice system.) 3.6% not suffered, from the temporary move online. Among those prac- Strongly disagree (The pandemic has adversely ticing primarily in that field, 60% believed that online dockets were impacted the access of citizens to the justice system.) 1.0% just as effective. Anecdotally, many workers compensation attorneys Strongly agree (The pandemic has made contact and reported greater efficiency and convenience by switching to video communication with clients more difficult.) 14.7% hearings. Similarly, probate practitioners were also more favorable Agree (The pandemic has made contact and to online proceedings, with a majority approving of this as “just as communication with clients more difficult.) 25.6% effective” and another 20% actually finding online probate hearings Somewhat agree (The pandemic has made contact more effective. For at least these areas, it may make sense to have a and communication with clients more difficult.) 23.0% conversation about to what extent video proceedings should remain Neither agree nor disagree (The pandemic has made part of “the new normal.” contact and communication with clients more difficult.) 12.8% Somewhat disagree (The pandemic has made contact With regard to video depositions, 67% of attorneys believed they and communication with clients more difficult.) 9.9% were not as effective as the in-person examinations that were Disagree (The pandemic has made contact and prevented by social distancing. Again, workers compensation prac- communication with clients more difficult.) 11.1% titioners disagreed, with 45% of respondents from that practice area Strongly disagree (The pandemic has made contact believing that video depositions could be just as effective and about and communication with clients more difficult.) 2.8% 10% finding video depositions more effective. Strongly agree (The pandemic has made it more difficult for potential clients to find attorneys.) 7.6% Given the circumstances and challenges faced by the rapid move online, it is a testament to the professionalism and work of the Agree (The pandemic has made it more difficult for potential clients to find attorneys.) 19.9% Bar, judiciary, and court administration that a profession built on personal contact and relationships to so rapidly transition to the Somewhat agree (The pandemic has made it more difficult for potential clients to find attorneys.) 17.1% “new normal” of 2020. Neither agree nor disagree (The pandemic has made it ACCESS TO JUSTICE more difficult for potential clients to find attorneys.) 36.9% Through the tremendous efforts of judges, clerks, and staffers across Somewhat disagree (The pandemic has made it more the Commonwealth, courts did remain open throughout the worst difficult for potential clients to find attorneys.) 7.0% of 2020. However, the vast majority of attorneys agreed that the Disagree (The pandemic has made it more difficult for pandemic had adversely impacted access to legal services in their potential clients to find attorneys.) 9.5% community. Strongly disagree (The pandemic has made it more difficult for potential clients to find attorneys.) 2.0% A similar majority agreed that client or constituent communication suffered during the pandemic. The problems of access to services and communication were viewed as worse by significant margins These difficulties in client contact and communication were not for those practicing in rural areas compared to the rest of the state. limited to the Commonwealth. An American Bar Association Similarly, about 45% of attorneys agreed that the pandemic made member survey echoed these same difficulties: it significantly harder to meet and be hired by new clients. This number was markedly higher (rising to 55.6%) in rural communi- ABA Members Reporting that These Aspect of ties. It remains to be seen what downstream economic impact this Developing New Business Became Harder than disruption will have on private practices in coming years. It may Prior to the Pandemic 2 well be that the worst of the economic disruption is yet to come as Getting Business from New Clients 52% the pipeline for future work narrows over the coming months as a result of the 2020 intake disruption. Setting Up Client Meetings 33% Getting Decisions from Clients 30% Strongly agree (The pandemic has adversely impacted the Your Productivity on Client Matters 30% access of citizens to the justice system.) 24.4% Getting New Business from Existing Clients 29% Agree (The pandemic has adversely impacted the access of citizens to the justice system.) 32.1% Your Responsiveness to Client Requests 10% Somewhat agree (The pandemic has adversely impacted the access of citizens to the justice system.) 20.3% Neither agree nor disagree (The pandemic has adversely “Access to justice,” is a tough concept to define. It probably involves impacted the access of citizens to the justice system.) 14.3% some indeterminate mix of the ability to get legal counsel, the ability to receive meaningful advice, and a chance to have access to the Somewhat disagree (The pandemic has adversely impacted the access of citizens to the justice system.) 4.3% courts or some other process to obtain remedies. To some extent,

54 | JULY/AUGUST 2021 it is one of those concepts, “you know it when you see it.” With alcohol sales as a whole grew nationwide by 34% from April to regard to the access to justice, KBA members believed: June in 2020 vs. 2019.5 Liquor stores were deemed “essential” and remained open during the worst of the lockdowns. Many liquor • Overall, 76.8% believe the pandemic has adversely store owners described, “every day as a Fourth of July weekend,” as impacted the access of citizens to the justice system the pandemic raged.

• This jumps to 86.8% for criminal law and 88.3% for Certainly, the legal profession was not alone in drinking more immigration practice during the massive disruptions of 2020. However, given our pro- • This jumps to 82.4% for those defining themselves as fession’s traditional struggles with alcohol abuse, this uptick should working in rural areas (all practice areas) not merely be written-off as part of a larger trend. • Overall, 63.3% believe the pandemic has made contact STRESS BY THE NUMBERS and communication with clients more difficult On the whole, about three-quarters of respondents agreed that • This jumps to 70.6% for those defining themselves as practice has become more difficult and more stressful during the working in rural areas (all practice areas) pandemic with notable impacts on family and other relationships. With regard to stress, members responded as follows: • Overall, 44.6% believe the pandemic has made it more difficult for clients to find potential attorneys • 74.4% of attorneys agreed that practice has become more stressful during the pandemic • This jumps to 55.6% for those defining themselves as working in rural areas (all practice areas) • 76.9% agreed practice has become more difficult during the pandemic Looking at these results as a whole, it appears that, at least in Ken- tucky, that the worst impacts to access justice may have fallen on • 57.1% agreed that the demands of their practice some of those least able to bear them- our citizens living in rural, interfere with my home and family life economically-disadvantaged areas. Indeed, for much of Appala- chia this may sound like a familiar tale- traditional problems with • 46.5% agreed that their practice of law has put a infrastructure and education have long-made economic downturns strain on my family and natural disasters, such as recent flooding, hit harder, with a • 64.2% agreed they bring stress home with them longer and tougher road to recovery. The pandemic was apparently no different. • 42.8% exercise less than before the pandemic CHALLENGES These findings are not surprising nor were they limited to the Com- monwealth. The American Bar Association’s surveys show similar Personal health and quality of life have been recognized as chal- stresses: lenges to our profession. The practice of law is stressful in the best of times and the 2020 pandemic was not “the best of times,” for many. COMPARED TO A YEAR AGO, 28.4% of responding Kentucky attorneys reported that they became ABA MEMBERS MORE OR MUCH MORE OFTEN: depressed frequently. This is entirely consistent with a prior peer-re- Miss Seeing People at the Office 73% viewed studies which indicated that 28% lawyers self-reported a Feel it is Hard to Keep Home and Work Separate 51% major depressive episode within the past year.3 These numbers show the Bar suffers depressive episodes at about four times the rate of Feel Disengaged from your Firm/Employer 49% the general population. It may be some small comfort that despite a Find your Work is Disrupted on Account of 47% world-altering pandemic, these numbers did not worsen. However, Family and Household Obligations mental health of Bar members remains a challenge that all of us Feel Overwhelmed with All of the Things You 46% must help address.4 Have to Do Have Trouble Taking Time Off from Work 43% Approximately 48% of attorneys indicated they were aware of other Think Your Day Never Seems to End 41% attorneys dealing with mental health issues. Thirty-nine percent Experience Stress About Work 40% indicated they were aware of other attorneys dealing with alcohol or substance issues. Again, rates were notably higher among public Think It Would be Better to Work Part-Time 35% not Full-Time defenders, who responded at a 58% rate. Think it Would be Better to Stop Working 33% About a quarter of respondents indicated that they were drinking more during the pandemic. The rate was higher for attorneys On a hopeful note, nearly 80% of Kentucky respondents reported working for larger law firms, who agreed with this statement at a that they did have someone they could talk to regarding the stresses rate of 40%. No doubt that this uptick in alcohol consumption was of practice. This belief in a support system was about 10% lower not confined to just the legal profession. Research has shown that among public defenders and members of the judiciary and 7%

BENCH & BAR | 55 BAR NEWS

lower for attorneys in rural areas. On the whole, 72% of attorneys LOOKING AHEAD felt that they had resources available to help them deal with the The disruptions from the COVID-19 pandemic are not over. As the stresses of practice. Keeping with the trend from other responses, pandemic appears to fade, the Bar must adjust again. The return of this rate was significantly lower for those involved with a criminal jury trials in 2021 is one of many steps along the way to a return to law practice- only 58% of prosecutors and defense attorneys agreed normalcy. Even so, the lasting effects of the pandemic will continue that resources were available to them. While these are positive to be felt. The Bar will need to continue to show the same resiliency signs, these results still leave a significant portion of the Bar behind. and adaption as we move forward. No doubt some changes, such as the effective use of video proceedings and depositions, will be One of the more troubling results was that 58.3% agreed the pan- here to stay. demic has made it hard to maintain positive relationships with other attorneys. In litigation in particular, respondents bemoaned the loss While this article discusses some of the survey highlights and of a regular motion docket gathering with colleagues. Particularly findings, members are encouraged to take a moment to review the in smaller communities, the camaraderie and fellowship of meeting full survey results. Bar members provided thousands of thoughtful other attorneys at a motion docket is one of the more rewarding comments and insights regarding our shared experience of the past and productive parts of practice. year. This survey isn’t an answer, but instead a starting point for the conversation about how the Bar has and should continue to adapt. Person to person connections are invaluable to the practice of law Thanks to all who participated in this study, probably the largest of and without a doubt the events of 2020 have diminished human its kind ever conducted in the Commonwealth. Your time and input contact throughout the Bar. There is a value to seeing and getting will help the entire Bar understand the impact of the events of 2020 to know colleagues in-person as opposed to via a tiny video window. on our shared calling. As the data is further analyzed, additional Parent or not, we have all heard stories and anecdotes concerning pieces regarding the impact in specific areas may be presented in the need for Kentucky’s students to return to face to face learning the Bench & Bar. All members are encouraged to view the survey for socialization. The Kentucky Bar needs a return to this social- results themselves and draw their own conclusions. All results are ization as well. available at www.kybar.org/pandemicsurvey.

All in all, over 76% of Bar members agreed with the statement, “I enjoy practicing law.” Overall, 60% reported that they enjoyed ENDNOTES practice more prior to the pandemic. The impact of the pandemic on enjoying practice was significantly more severe for younger attor- 1 Wolfson, Andrew. “Think a court cat filter is weird? Try virtual court with beer, bikinis and clients in bed.” Louisville Courier Journal, December neys. Unfortunately only 50% of those with less than two years 18, 2020. https://www.courier-journal.com/story/news/2020/12/18/ in the practice of law reported being satisfied with the practice of amid-covid-19-pandemic-remote-court-hearings-bare-naked- law since the pandemic. There may be a need to reach out to our truth/3932436001/. Retrieved from web May 30, 2021. newest lawyers and find out the source of this displeasure lest we 2 The mericanA Bar Association conducted its own survey on pandemic impacts by email in September-October 2020. https://www.americanbar. risk losing a generation of colleagues. org/content/dam/aba/administrative/digital-engagement/practice-forward/practice-forward-survey.pdf, retrieved May 20, 2021. The ABA data was gathered from an online survey using the same software and general methodology as the Kentucky survey. The ABA gathered data from 4,200 ABOUT THE AUTHOR members over two months, or approximately 1% of its 400,000 members. In contrast, 2,300 KBA members, or over 11% of the membership, respond- MICHAEL S. FORE is an assistant profes- ed to its survey. KBA members should be congratulated on their help in sor of management at Eastern Kentucky responding and preserving a record of how the 2020 pandemic impacted our profession and communities. University’s School of Business. He is 3 Krill, et. al. (2016). The Prevalence of Substance Use and Other Mental also a partner at Simons & Fore, PSC, in Health Concerns Among American Attorneys. Journal of Addictive Medi- Richmond, Ky. He earned his B.A. from cine. Volume 10 at Page 42. Tulane University in 1999 with degrees 4 Kentucky Lawyer Assistance Program’s 24 Hour Helpline- (502) 226-9373. 5 Lee, et. al., Retail Alcohol Sales During Covid-10, Annals of Internal Med- in both political science and history. In icine, citing Nielsen National Consumer Panel Data, retrieved online www. 2002, he obtained his J.D. from Wake acpjournals.org/doi/10.7326/M20-7271, retrieved online April 11, 2021. Forest University School of Law. Fore’s See also Pollard, 2020. Changes in Adult Alcohol Use and Consequences legal practice focused on civil litigation, During the COVID-19 Pandemic in the US. JAMA Network Open, 2020;3(9):e2022942. wills and probate, and business law. He is a past president of the Madison County Bar Association.

56 | JULY/AUGUST 2021 Address or e-mail changes?! Notify the Kentucky Bar Association Jest Is For All by arnie glick Over 19,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. Pursuant to SCR 3.035, all KBA members must maintain a current address at which he or she may be communicated, as well as a physical address if your mailing address is a Post Ofﬁce address. If you move, you must notify the Executive Director of the KBA within 10 days. All roster changes must be in writing and must include your 5-digit KBA member identiﬁcation number.

Members are also required by SCR 3.035 to maintain with the Director a unique, valid email address and shall upon change of that address notify the Director within 10 days of the new address. Members who are classified as a “Senior Retired Inactive” or “Disabled Inactive” member are not required to maintain a valid email address on file and those “Honorary” members who no longer actively practice law or maintain an office.

Litigation Support, There are several ways to update your address and/or email for your Valuation, and convenience.

Financial Forensics Online: Visit www.kybar.org to make changes online by logging into the Billy Upchurch website and editing your proﬁle. CPA/ABV/CFF, CFE, CVA Form: Complete the Address Changes/Updates form found at www.kybar.org, under the For Members tab, Members Request, Address Changes/Updates. Email Credentialed completed form to [email protected] OR mail to : Flemingsburg Louisville Richmond Kentucky Bar Association, Lexington Maysville Executive Director 514 W. Main St., Frankfort, KY Chris Hatcher 40601-1812 CPA/CFF, CFE, CVA, CGMA 866.287.9604 www.baldwincpas.com *Announcements sent to the Bench & Bar’s Who, What, When & Where column or communication with other departments other than the Executive Director do not comply with the rule and do not constitute a formal roster change with the KBA.

BENCH & BAR | 57 BAR NEWS

COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION IN RE THE MATTER OF: ANN RUTTLE, DISTRICT COURT JUDGE 16TH JUDICIAL CIRCUIT, DIVISION 1

AGREED ORDER OF SUSPENSION

Ann Ruttle is a District Court Judge for Kentucky’s 16th Judicial confidence in the independence, integrity, and impartiality of the Circuit, Division 1, for Kenton County. Prior to the commencement judiciary, and to avoid impropriety and the appearance of impro- of formal proceedings, the parties reached an agreement to resolve priety; Canon 2, Rule 2.2, which requires a judge to uphold and the matter. Judge Ruttle has waived formal proceedings and has apply the law and perform all duties of judicial office fairly and agreed to the entry of this Order. impartially; and Canon 2, Rule 2.8(B) which provides a judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, During a preliminary investigation resulting from two complaints, lawyers, court staff, court officials, and others. the Commission received information concerning certain court proceedings of June 3, 2020; June 23, 2020; July 14-15, 2020; August 4, Therefore, in light of the foregoing conduct, Judge Ruttle is hereby 2020; the week of August 17, 2020; and August 24, 2020; and other suspended from her duties as District Court Judge without pay for court records concerning cases called on those dates. Judge Ruttle: a period of seven consecutive days beginning April 15, 2021 and (i) required defendants in criminal trials to file written demands ending April 22, 2021. During the suspension, Judge Ruttle shall for jury trials; (ii) made comments directed to attorneys with the not use her judicial office at the Kenton County Judicial Center. Department of Public Advocacy that were not patient, dignified, Judge Ruttle shall also not use her secure courthouse access pass and and courteous; and (iii) in a proceeding with an unrepresented shall turn in any access passes, keys, or credentials to court security defendant, Commonwealth v. Dell, 10-F-16, suggested entering while the suspension is in effect. into a plea agreement by the defendant that could reasonably be perceived as coercive. In imposing this sanction, the Commission duly considered the circumstances and impact caused by the Covid-19 pandemic and The Commission concludes Judge Ruttle’s conduct violated SCR the fact that Judge Ruttle fully cooperated with the investigation 4.300, the Code of Judicial Conduct, Canon 1, Rule 1.2, which and acknowledged her actions were inappropriate. requires a judge to act at all times in a manner that promotes public

Date: April 7, 2021

/s/ Michael Sullivan, Chair

Agreed to:

/s/ Hon. Ann Ruttle, Judge

/s/ J.T. Gilbert, Counsel for Judge Ruttle

/s/ Bryan H. Beauman, Counsel for the Commission

58 | JULY/AUGUST 2021 NextGen CM/ECF to Require Upgraded Accounts Certification of In September 2021, the Eastern and Western Districts of Kentucky will upgrade their Canvassing Board respective CM/ECF systems to NextGen CM/ECF (NextGen). This will require filers to take steps to prepare for NextGen in order to continue to electronically file. for Bar Members,

NextGen simplifies electronic filing by combining your CM/ECF and PACER Special Election accounts into a single Central Sign-On account. Through the PACER website, filers th will use one log-in and password to electronically file in all NextGen courts where for the 16 Judicial they have permission to file. You will no longer need a separate CM/ECF account for Circuit Nominating each NextGen court. All Federal Courts are expected to eventually adopt NextGen. Commission Before September 1, 2021, upgrade your PACER account at https://www.pacer.gov/ if you have not already done so. Each filer must have his or her own PACER account. Shared PACER accounts Pursuant to the provisions of 1 will not work with NextGen. Please note, PACER accounts created after August 11, 2014, are already upgraded accounts. Section 118 of the Kentucky Constitution and SCR 7.040(6), Beginning September 7, 2021, you must link your CM/ECF accounts to your PACER account in order to electronically a duly appointed canvassing file in the Eastern District of Kentucky. 2 board, on April 26, 2021, tab- Beginning September 13, 2021, you must link your CM/ECF ulated ballots online for the account to your PACER account in order to electronically file Special Election for the 16th 3 in the Western District of Kentucky. Judicial Circuit Nominating Commission. Pursuant to the provisions of SCR 7.030(11), the There were two Commissioners on the KBA’s following candidates received Attorneys’ Advertising Commission (AAC) whose the indicated number of votes:

terms ended June 30, 2021. Andrea P. Anderson Daniel R. Braun …………………….....…….91 of Bowling Green served on the Commission from Kenton County Stephanie A. Dietz ………...... ……….139 2015-2021, and Sarah N. Emery of Fort Wright Kenton County also served on the Commission from 2015-2021. Ryan M. McLane ………………...... ….…..88 During the AAC’s annual meeting held via Zoom Kenton County Nicholas M. Nighswander ...... …. 95 on June 11, 2021, AAC Chair Amanda Main Kenton County recognized Ms. Anderson and Ms. Emery for their dedicated service during the six years each served on the AAC. The AAC receives and reviews lawyer advertising submissions pursuant to the Kentucky Supreme Court Rules.

BENCH & BAR | 59 KENTUCKY BAR FOUNDATION ntucky ba ke on r dati awa un rd fo s

2 The Kentucky Bar Foundation’s 0 G mission is to further the public’s 2 N understanding of the judicial 1 G LI system and the legal profession R TA through programs and philan- $ ANT TO thropic partnerships that help S those in need. One way the Foundation serves this mission is by awarding annual grants to 2 0 law-related organizations and 5 , 0 projects across the Common- 9 3 wealth. Although its annual Big Sandy Health Care, Inc. luncheon was cancelled for Eastern Kentucky a second straight year due to $30,000 for Big Sandy Medical Legal Partnership COVID-19, the Foundation This medical-legal partnership between Big Sandy Health Care (BSHC) and the Appa- still awarded $259,300 in lachian Research and Defense Fund (AppalReD) will provide access to legal assistance for BSHC’s low-income, underserved population in eastern Kentucky. Many of BHSC’s total grants to twenty-nine 30,000+ patients experience barriers related to social determinants of health that interfere nonprofits working to provide with their health and quality of life. Often, these patients experience legal issues for which access to justice and legal they cannot afford an attorney, including assistance with disability applications, (including education for Kentuckians. black lung and VA benefits), guardianship issues, tenant/landlord disputes, domestic violence situations, expungement, etc.

Catholic Charities of the Diocese of Owensboro Western Kentucky $12,000 for Opening the Golden Door Many young people are not aware that they are eligible to submit initial Deferred Action for Childhood Arrivals (DACA) applications and Venezuelans are not aware of their ability to apply for Temporary Protected Status (TPS). This project will educate attorneys in a CLE to prepare DACA and TPS applications, sponsor clinics utilizing the newly-trained attorneys, and prepare petitions for DACA-eligible and TPS-eligible applicants to obtain benefits.

60 | JULY/AUGUST 2021 Esperanza Latino Center of NKY Child Watch Counseling Northern Kentucky & Advocacy Center, Inc. $2,400 for Free Immigration Consultations Paducah This project provides the Latino community of Northern Kentucky with an opportunity to receive legal guidance regarding immigration cases. Immigration legal matters can seem $5,000 for Child Watch quite daunting, often leaving people in a vulnerable position in which they can feel lost and Mentoring Adolescents’ even taken advantage of. This program gives people the chance to speak with an attorney Path to Success in their own language in a trusted community center where they feel comfortable. They do not have to worry about any costs and can feel free to ask as many questions as they The Child Watch MAPS Program assigns wish. After each consultation, individuals leave with an understanding of what to expect mentors to students facing truancy charges and the necessary steps forward to achieve their desired outcome. as a result of educational neglect or other incidents of child abuse. Mentors will help students overcome barriers to education Family Enrichment Center and set goals for immediate success in the South Central Kentucky diversion program and for future academic $8,000 for Court Ordered Supervised Visitation Services success. The ultimate goal of this initiative This program provides supervised visitations for families who may be experiencing custody, is to determine and correct the circum- reunification, domestic violence, child abuse, and/or other family crises. It is a fee-based stances that are contributing to truancy program based on income and all visitations/exchanges are court ordered or requested in an effort to avoid charges against the by the Cabinet for Health and Family Services. The program centers on the philosophy juvenile and/or the parents or caregivers. that parents can re-learn ways of thinking and behaving through education and replace unwanted, harmful behaviors with new, healthy nurturing behaviors. Family & Children’s Place Jefferson and Surrounding Counties $6,000 for Advocacy Center is First Responder During Pandemic FCP provides medical and behavioral health services for child victims of physical and The Kentucky sexual abuse, maltreatment, human trafficking and other violence by providing forensic CASA Network, Inc. interviews and physical examinations that, in turn, deliver the necessary evidence needed Statewide by law enforcement and the Commonwealth’s Attorney’s Office to prosecute perpetrators of these crimes against children. These funds will be used towards the salary of a forensic $10,000 for Building interviewer and lab tests/fees for the physical portion of the examination. Capacity and Growth of the CASA Program in Holly Hill Child & Family Solutions the Commonwealth Northern Kentucky This funding will expand CASA advo- $5,000 for Supervised Visitation and Exchange Program cacy and develop critical capacity to equip programs to meet the demand Holly Hill provides onsite supervised visitation and safe exchange for clients who have court for CASA services. While the impact orders and indicate a history of domestic violence, child abuse, sexual assault, dating violence, of COVID-19 saw a 25% decrease in or stalking in their family. It also provides services for clients impacted by substance abuse dependency, abuse, and neglect petitions and/or mental illness, involved with social services, or going through a divorce. Visitation in 2020, the return of school and the services ensure safety of children and the visiting party, stabilizes the family during a crisis, opening of Courts will result in a signif- reduces the risk of domestic violence, and promotes healthy parent and child interactions. icant increased need for CASA services for Kentucky’s abused and neglected HOTEL INC children. This project looks to expand Warren County CASA into Appalachia, provide criti- $2,500 for Preferred Tenant Program cal data management to track outcomes This project fosters an individualized, intensive process of identifying personal life and and placements for CASA children, and community circumstances that frustrate the efforts of making a successful transition to provide targeted training for CASA from homelessness and poverty to self-sufficiency and agency. This may include obtain- staff and volunteers around diversity, ing employment with a living wage, finding permanent affordable housing, and gaining equity and inclusion. knowledge of laws related to the purchase/rental of a home, debt reduction, bankruptcy, and other financial literacy skills. The program also explores legal aspects of re-entry into the community after incarceration with referrals to partners as needed.

BENCH & BAR | 61 KENTUCKY BAR FOUNDATION

Kentucky Equal Justice Center, Inc. Kentucky Central and Eastern Kentucky Innocence Project, Inc. $11,000 for Maxwell Street Legal Clinic: A New Day for DACA Statewide Following a series of legal victories, this project focuses on helping young people to apply $15,000 for Kentucky for DACA status and the work authorization and temporary protection from deportation Innocence Project that come with it. The funding will support both initial applications and renewals. Just This project benefits Kentucky inmates who as important, staff will screen applicants for more permanent immigration status. Funds have been wrongfully convicted. Kentucky will also support creative outreach, including a recurring radio show, to provide reliable, has the 12th-highest incarceration rate in up-to-date information so that community members know what changes have been enacted the United States and is significantly above and – just as important – which have not. Moreover, Maxwell Street will maintain and the national average. Kentucky houses strengthen partnerships with the private bar to expand pro bono opportunities. approximately 19,000 inmates in state-run correctional institutions. Estimates are that Kentucky High School Mock Trial Association, Inc. 3-6% of all inmates are wrongfully con- Statewide victed, meaning that roughly between 570 and 1140 individuals reside in our Ken- $5,000 for Kentucky Mock Trial Western Kentucky Expansion tucky prisons who are wrongfully convicted. This grant provides funding for three initiatives. First, it will encourage increased par- Funding will be used for: 1) emergency ticipation of low-income students and schools by expanding the need-based scholarship needs of the exonerees that have been program to 10 schools and by providing direct financial assistance to offset the program released from prison and whose welfare costs and travel expenses. Second, it provides financial assistance to develop the resources is in jeopardy due to lack of resources; 2) and training materials for new programs in the Western Kentucky region. Third, it will pay day-long legal trainings; and 3) experts in the registration fee and some of the anticipated travel costs for the team who represents post-conviction litigation cases. Kentucky at the National Championship.

Kentucky La Casita Center Refugee Ministries Jefferson and Surrounding Counties Central and Northern Kentucky $5,000 for Legal Services and Outreach Program $10,000 for Overcoming La Casita provides free legal advocacy and consultation to the Latinx community by con- necting them to pro bono lawyers and by helping to increase knowledge of the judicial and Barriers: Access to Justice legal system. For many families, access to legal representation can be the difference between for Immigrants and Refugees thriving and utter despair. The Legal Services project includes community outreach, legal Grant funds will be used for asylum cases, clinics powered by volunteer attorneys and interpreters, know your rights workshops, and the process through which individuals can mobile consulates. Program participants can receive assistance with a variety of legal services become refugees after they arrive in the such as powers of attorney, DACA renewals, court accompaniment, asylum applications, United States. In order to qualify, indi- motions to reopen immigration cases, and Freedom of Information Act (FOIA) requests. viduals must show that they have suffered persecution or have a well-founded fear Lexington Leadership Foundation of persecution in their home country on Central Kentucky the basis of one of the following protected categories: race, religion, nationality, mem- $10,000 for Amachi Central Kentucky bership in a particular social group or Amachi is a one-to-one mentoring program working with children (ages 6-18) who have political opinion. No attorney is provided been impacted by incarceration. Amachi aims to assist children in achieving their highest by the government to represent individuals potential by engaging them in consistent and committed mentoring relationships. The in these proceedings. Many who have valid program is structured to build capacity in young people who will then be able to develop asylum claims would otherwise be unable leadership skills of their own one day. Funds will be used to screen and match mentors to navigate the complex legal system that with youth in the program and will provide training, mentor support, quarterly events, and can include appearances before multiple related services for program participants. The funds will also be used to recruit new mentors, federal agencies. as there is currently a waiting list of youth eagerly wanting to be matched.

62 | JULY/AUGUST 2021 Mediation Center of Kentucky, Inc. Central Kentucky $5,000 for Family Motion Hour Mediation. Neighbors The Family Motion Hour Mediation Program provides on-demand mediation services at Immigration Clinic domestic motion hours and allows individuals the opportunity to manage their own con- Northern Kentucky flict. This service is provided at no cost to the parties and helps reduce the courts’ dockets. The Family Motion Hour Mediation Program sends a mediator to Family Court Motion $6,700 for Expanding Hours to mediate cases that have been identified by the judge as appropriate. While the Immigration Legal Services Motion Hour Mediation is open to anyone assigned by the judge, the Center overwhelming Neighbors Immigration Clinic is further supplies services to pro bono parties. expanding immigration legal services to Northern Kentucky, bringing nonprofit Micah Legal immigration legal services to low-income immigrants in communities that have Central Kentucky never had access to such services. Once $10,000 Making Access to Justice Affordable to monthly, a staff attorney will travel to Indigent Central Kentuckians Northern Kentucky to meet with clients to discuss legal options they might have Micah Legal increases access to justice in central Kentucky by assisting people with low to and questions they have for the attorney. moderate incomes with their civil legal needs. Micah Legal provides affordable, sliding scale If Neighbors is able to provide represen- legal services in the areas of family law, estate planning, and expungements. These funds tation to the immigrant, it will do so. If will subsidize the extremely modest fees ($15/hour) paid by the most financially insecure not, it will provide referrals to reputable clients – approximately 50% of our caseload-who have poverty level or near-poverty-level attorneys to take their case. incomes. These clients have all sought help from Legal Aid, but have been declined for various reasons (conflicts, wrong case type, etc.).

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BENCH & BAR | 63 KENTUCKY BAR FOUNDATION

Second Hope Ministries Safe Harbor of Jefferson and Surrounding Counties Northeast KY Eastern Kentucky $6,700 for Second Hope Program Administrator Second Hope Ministries is a non-profit organization that equips men recently released $15,000 for Safe Harbor from prison with the tools, relationships, and resources needed to become valuable and Legal Defense Fund contributing members of their communities. Through various programs and community Safe Harbor Legal Defense Fund will pro- partnerships, Second Hope Ministries provides its clients with pre-release educational vide fees for attorneys to represent victims programs, and post-release job placement, mentoring, and housing services. This grant will of domestic violence and sexual assault in help support a Program Administrator for Second Hope Ministries' various programs and matters such as divorce, child protection services, thereby helping to reduce recidivism, promote compliance with the laws of the and custody, immigration, expungement, Commonwealth, and further community enrichment. or other legal issues that are barriers for safety and living a full and successful life. Sunrise Children’s Services, Inc. This is a new project for the area and will be a tremendous resource for some of the most Western Kentucky at-risk individuals and families in Kentucky $15,000 for Mental-Health: A Top-5 Priority in Western Kentucky who might otherwise struggle to navigate Sunrise Children’s Services, Inc. has served Western Kentucky for more than a quarter the judicial system. Safe Harbor employs century. Its staff in Owensboro and Madisonville currently serve over 400 individuals. two legal advocates who help survivors Most Sunrise clients are part of the local court system and many are confused or intimi- obtain DVOs, EPOs, direct legal services, dated by the court and/or social service systems. Sunrise’s clients’ personal struggles with and serve as a liaison between the survivors significant mental health issues, or their advocacy for loved ones with such issues, can be and the legal system. compounded by not knowing what is expected of them by courts and/or social services. Sunrise is a resource that helps them navigate these complex systems.

WestCare, Inc. Additionally, the KBF awards annual Eastern Kentucky grants in celebration of the recipients $5,000 for Judi Patton Center for Families: Increasing of the KBA Distinguished Judge and Access to Legal Assistance Distinguished Lawyer Awards to WestCare will use these funds to increase client access to legal assistance and compliance organizations of their choice. with court hearings. The Judi Patton Center for Families, a 96-bed residential treatment facility in Pike County, serves women in recovery from substance use disorder and pur- This year, the KBF awarded $2,000 suing a second chance following criminal justice involvement. Individuals with substance to the use disorder often struggle to break the cycle of criminal justice involvement. This grant Hardin County Drug Court will support staff helping women connect with legal assistance such as AppalReD Legal in honor of Judge Kelly M. Easton of Aid and assisting with transportation for court appearances. Elizabethtown.

The KBF is also proud to award scholarships of Likewise, the KBF awarded an additional $10,000 each to Kentucky’s three law schools: $2,000 to Child Watch Counsel- ing & Advocacy Center in honor of Richard “Rick” A. Walter of Paducah. In total, the KBF awarded $ These grants bring the total amount of KBF grants awarded since 1988 to nearly , $4.5 million! The KBF is so proud of the efforts of its Board and supporters 259 300 who have helped make these impactful grants possible. As new challenges arise in grants for the this year, the Bar Foundation’s role in the administration of justice is important perhaps now, more than ever. We look forward to working with you in order to help our communities meet the demands of these new challenges. 2021 year! 64 | JULY/AUGUST 2021 KYLAP

KYLAP IS PLEASED TO ANNOUNCE THAT THE MONDAY 5PM ZOOM LAWYERS IN RECOVERY MEETING WILL BE AN ONGOING MEETING

The meeting is open to all recoveries and follows a standard mutual-aid recovery meeting format. These meetings are a safe place to share your experience, strength, and hope with others and gain peer support from other lawyers, law students, and judges in recovery. The meetings are confidential, and you must have a personal invitation to attend. The link and password are changed weekly for privacy and are not recorded. If you would like an invitation to attend the Monday Zoom meetings, please call or email Ashley Cooper at 502-226-9373, or email [email protected].

KYLAP's Lawyers in Recovery Meeting on Wednesday mornings at 7:30 a.m. is once again LIVE at the Alano Club, 370 E. Second Street, Lexington, Ky., but is a hybrid meeting and you may attend via Zoom or in person. The same format as the Monday meeting applies. If you would like an invitation to attend the Wednesday hybrid meetings by Zoom, please call or email Ashley Cooper at 502-226-9373, or email abeitz@ kylap.org. You do not need an invitation to attend the live meetings.

The Thursday evening meetings at 5:00 p.m. will continue as Zoom meetings for the time being. All meetings are open to all law students, judges, and lawyers in recovery. the key to recovery If you would like an invitation to attend the Thursday Zoom meetings, please call or email Ashley Cooper at 502-226-9373, or email [email protected].

BENCH & BAR | 65 KYLAP

Employee The Kentucky Bar Association, through the Kentucky Lawyer Assistance Program, has Assistance Program partnered with an Employee Assistance Program to provide enhanced mental health Mental health support to support to Kentucky’s lawyers and judges. All of the assistance remains COMPLETELY Kentucky’s lawyers and judges CONFIDENTIAL, pursuant to S.C.R. 3.990. Call Anytime This partnership provides clinical mental health support for Kentucky’s lawyers and At the Kentucky Bar Association judges. Simply call the KYLAP office anytime, night or day, on ourDIRECT PHONE and the Kentucky Lawyer Assistance NUMBER – no operators required – and after hours you will be directly connected Program, we recognize that lawyers to our Employee Assistance Program. The number is 502-226-9373. You may also and judges are suffering from continue to call through the main switchboard at the Kentucky Bar Association at undiagnosed mental health issues, 502-564-3795, ext. 266. Someone will be available to you 24 hours a day, 7 days a week. including depression and severe and chronic stress and anxiety, at Four (4) Clinical Sessions at no charge to you a much higher rate than the general If you need immediate care, the EAP will connect you with one of hundreds of mental population. We understand that health providers all across the state and you will have an appointment in the area you good mental health and wellness choose in 24-48 hours if needed. The providers you’re referred to will be licensed or is essential for the sustainability of credentialed professionals. If you have insurance or would like to pay privately, that will our profession. We’re committed to be accepted (according to the provider’s guidelines). If you are unable to pay, you will offering this service to you to help receive up to four (4) clinical sessions at no charge to you. The Kentucky Bar Association and KYLAP are providing this service to its members free of charge, with no income you address mental health issues criteria required. If you need additional services and are unable to pay for those, before you reach a crisis in your additional assistance may be available through the KYLAP Foundation’s forgivable life and in your career. loan program. www.kylap.org/foundation. Mental Health Resources We recognize that lawyers and judges are at risk for mental health difficulties at a rate far higher than the general population. We understand that good mental health and wellness is essential for the sustainability of lawyer wellbeing. We are committed to offering resources to you to help your mental health before you reach a crisis in your life and in your career.

A Mental Health Resource page has been created to provide a variety of resources to KBA members regarding mental health. More information is being added. Visit www.kybar.org/CLEMentalHealthResources to review the list of current resources.

You are not alone. Please call the National Suicide Prevention Lifeline at 800-273-8255, if you’re thinking about suicide, are worried about a friend or loved one, or would like emotional support. The National Suicide Prevention Lifeline network is available 24/7 across the United States. Additional Resources National Institute of Mental Health: In addition, the Kentucky Lawyer Assistance Program (KYLAP), is another resource https://www.nimh.nih.gov/health/topics/ that can help attorneys facing pressing issues and who are in need of support. Attorneys can call the KYLAP office on our direct line (no operator required) at suicide-prevention/index.shtml (502) 226-9373. Our telephone is answered 24 hours a day, 7 days a week, National Suicide Prevention Lifeline: 365 days a year through our confidential employee assistance service. https://suicidepreventionlifeline.org/ Also, our KYLAP Foundation is available to provide financial assistance for mental health treatment. We also publish numerous additional resources on our Suicide Prevention Resource Center: website, www.kylap.org, and we have over 100 lawyer volunteers who will offer https://www.sprc.org CONFIDENTIAL assistance when called. https://www.sprc.org/states/kentucky

66 | JULY/AUGUST 2021 BENCH & BAR | 67 CONTINUING LEGAL EDUCATION ROI: WHAT’S YOUR RETURN ON INVESTMENT? BY MARY BETH CUTTER, KBA DIRECTOR FOR CLE

hat’s the best way to join together two unrelated topics into one somewhat cohe- sive article?: A GENERALLY APPLICABLE OVERARCHING THEME! WToday’s theme is maximizing your return on investment or “ROI.” We are all busy people and most strive to achieve the highest efficiency and “profitability” for our investments of time, energy, effort, and money. The Kentucky Bar Association CLE Department wants to maximize your ROI in all dealings with us.

The Kentucky Law Update (KLU) program series has always offered an excellent ROI. You have no choice but to be a member of the Kentucky Bar Association (“KBA”) and pay bar dues if you want to practice law in Kentucky. While practicing law a is reward in and of itself, why not maximize your return on that investment by attending our 2021 Kentucky Law Update? It is available at no charge to members of the KBA in good standing, and this year we truly have something for everyone. In past years, that statement referred to ABOUT THE AUTHOR the subject matter of our KLU programs. This year, we offer something for everyone with MARY BETH CUTTER serves as the the content, but also the format of the programming. If you prefer in person programming Kentucky Bar Association’s director for and staying in touch with your friends in the local legal community and bar leaders, plan Continuing Legal Education. Cutter WWW.KYBAR.ORG/KLU to attend Live 2021 KLU. Visit to see the dates, locations, and received her B.A. with distinction from registration information. Centre College, and her Juris Doctor- ate from the University of Kentucky ONE-DAY PROGRAM OFFERING 6.25 CLE CREDITS, INCLUDING 2 ETHICS It will be a , College of Law. Following her admis- and will consist of the updates, i.e., Supreme Court, Court of Appeals, Federal Court, and sion to the Kentucky Bar, she was Criminal Law Updates, as well as Kentucky Lawyers Assistance Program and IOLTA pro- engaged in private practice, focusing gramming. For those of you who prefer the KLU on demand, we are offering 12 hours of primarily in the areas of health care, programming, including at least 2 ethics, in an on demand format from August 16 through civil litigation, employment, real estate, December 31, 2021. Separate registration is required for the Live 2021 KLU and the On and domestic law. She has been with Demand 2021 KLU. Just visit the link above for registration for both. You can register the Kentucky Bar Association since and attend the Live only, the On Demand only, or both. It is up to you to determine what November of 2008. brings you the highest ROI.

68 | JULY/AUGUST 2021 On another note, it is with sadness but no regrets that I must take this opportunity to say farewell to our Commission members from the First and Sixth Districts, whose second terms expired on June 30, 2021.While the CLE Commission must “sell,” we are selling high and came out way ahead on these investments.

Through times of personal and professional challenges, JASON DARNALL has always given the CLE Commission 100%. He served as our chair during his last three-year term, and 2021-2022 hardly ever missed a meeting in six years. He drove 500 miles round trip to personally attend these meetings while running CLE COMMISSION marathons on each continent, going through an election that MEMBERS involved dog bites and grass roots hustling, endured an unthink- able community tragedy, and found time for three dogs, two LATOI D. MAYO, CHAIR kids, and a wonderful wife. All this while serving on countless CLE planning and other KBA committees, speaking at Fifth District Representative Kentucky Law Update and New Lawyer Programs, attending [email protected] Annual Convention, keeping up with his beloved St. Louis Cardinals and UK Wildcats CARRIE LEIGH OVEY-WIGGINS and only missing two Kentucky Derbies in 25 years. The legal community’s investment in Jason by asking him to serve on the CLE Commission was money well spent. Our First District Representative return on that investment is higher than we could have imagined. Thanks to Jason for [email protected] his service and hard work! FRANK HAMPTON MOORE III DAVID SLOAN has served as a past president of the KBA and Second District Representative has been a consistent and valuable volunteer for over three [email protected] decades. David has served on just about every committee and GRAHAM C. TRIMBLE commission of the KBA and was integral in the creation and success of the Diversity, Equity and Inclusion in the Profession Third District Representative Committee in all of its incarnations and evolution, as well as [email protected] our semi-annual Diversity and Inclusion Summits. The CLE ERIC M. WEIHE Commission has been lucky enough to benefit from David’s volunteerism and devotion to improvement of his profession for Fourth District Representative the last six years. He has been our 6th District Commissioner [email protected] and attended his last meeting on June 4th. Our return on the RYAN M. BECK investment has been immense and I can only hope that David has enjoyed gains as well. Thanks to David Sloan for his dedication, time, experience, Sixth District Representative and invaluable, common sense point of view. Do not be surprised when we keep calling [email protected] and requesting your involvement as we move forward. LEIGH GROSS LATHEROW In conclusion, upon the completion of my first meeting with my advisor at Centre Seventh District Representative College, Dean Milton Reigelman, he walked me down the steps of Old Centre and [email protected] said, “Since I am your advisor, here is some advice. Buy low. Sell High.” It took me about JUSTICE ROBERT B. CONLEY five minutes to realize he was joking with me but nevertheless the advice is some of the best I have gotten. (The other being “watch out for the idiots” which was courtesy of my Supreme Court Liaison dad.) We should all seek to buy low and sell high, maximizing production and benefit from all of our efforts in these busy times. The programs and services we provide and the opportunities for volunteering for your profession that we offer are intended to do just Interested in assisting with a CLE? that. We hope you will take advantage of what we are able to offer, and we are only able Have ideas for a program? Contact to offer those things because of our volunteers. It is a mutually beneficial arrangement. Mary Beth Cutter, KBA Director for CLE at [email protected], or any member of the Continuing Legal CLE DEADLINE Education Commission. The deadline for completing the mandatory CLE requirement for both the 2020 and 2021 educational years was June 30th. 24 credits, 4 of which need to be ethics, must have been EARNED by June 30th. Credits timely earned must be reported by August 10th to avoid a late fee. If you did not earn sufficient credits by the deadline, you will need to seek an extension or exemption. See SCR 3.665 and 3.670 to avoid suspension. You can apply for extensions and exemptions through your CLE Member Portal.

BENCH & BAR | 69 CONTINUING LEGAL EDUCATION

KENTUCKY LAW UPDATE

Advancing the 20Profession Through21 Education Mark Your Calendars! The annual Kentucky Law Update program series is just around the corner. THANK YOU to The 2021 program series will be offered as a hybrid event, with one day of live those individuals programming on location in each Supreme Court District, and 12 hours of on demand programming offered from August 16 through December 31st. whose contribution

The live sessions will not be available on demand but will be of their time and available for purchase in January. expertise heped Live programming Schedule: produce the June Owensboro: Thursday, August 26 Covington: Thursday, September 2 2021 New Lawyer Paducah: Thursday, September 16 Program! Louisville: Thursday, September 30 Pikeville: Thursday, October 7 Ashleigh N. Bailey Ashland: Thursday, October 14 Ruth H. Baxter Bowling Green: Thursday, October 28 London: Friday, November 5 Tanya Y. Bowman Lexington: Thursday, December 2 Bonnie M. Brown Visit www.kybar.org/page/KLU to register! Miranda D. Click Please direct inquiries to Program Coordinator Caroline Carter, [email protected]. Ashley L. Chilton Robbie O. Clements Mary Beth Cutter Melissa DeArk We’re local, everywhere. Robert W. Dibert Sheila M. Donovan Local laws, legal communities, customs, and cultures M. Andrew Haile, Jr. powerfully inﬂ uence how businesses work, how workplaces function, and how employment issues are resolved. That’s Guion L. Johnstone why we’ve been building a law ﬁ rm with teams all over the Thomas N. Kerrick world, bringing deep understanding and vital insight to the issues your business is facing, wherever it’s located. Catherine A. Monzingo Judge Melissa M. Murphy Littler is a proud supporter of the Kentucky Bar Association. Jeffery L. Sallee Brian L. Schuette David N. Shearon B. Scott West LaToi D. Mayo, Shareholder | Jay Inman, Shareholder 333 West Vine Street | Suite 1720 | Lexington, KY 40507

Attorney Advertising

70 | JULY/AUGUST 2021 Submitting CLE Credits Online 1 VISIT www.kybar.org SELECT CLE 2

SELECT Submit New Credits CLE CREDITS 4 Submit New Credits

CLICK ON THE Program BOX AND TYPE IN THE Activity Number. 5 Wait for the system to locate the program and for the field to populate. CLICK ON THE BOX TO SELECT THAT PROGRAM.

CLICK Next. 6

CLICK “Total CLE” AND ENTER THE AMOUNT OF CREDITS EARNED. 7 REPEAT FOR “Ethics” TO ENTER THE ETHICS CREDITS EARNED.

TYPE YOUR name as your certification AND signature. 8

9 CLICK Next.

YOUR CREDIT HAS NOW BEEN ADDED AND WILL APPEAR ON YOUR TRANSCRIPT. 10

BENCH & BAR | 71 s a final tribute, the Bench & Bar publishes brief memorials recognizing AKBA members in good standing as space permits and at the discretion of the editors. Please submit either written information or a copy of an obituary that has been published in a newspaper. Submissions may be edited for space. JAMES ALBERT Memorials should be sent to [email protected]. JONES, 91, a former United States Attor- NAME CITY STATE DATE DECEASED ney, Paducah mayor, state legislator, com- Leonard Stanley Chauvin, Jr. Louisville KY May 13, 2021 monwealth attorney, Mary Camille Erwin Louisville KY November 30, 2021 and FBI agent, died Feb. 10. James Albert Jones Paducah KY February 10, 2021 Donald W. Jones Nashville TN December 29, 2019 A graduate of Paducah Tilghman High Dennis Jack Lortie Fulton KY April 29, 2020 School and the University of Kentucky Stephen Dale Milner Lexington KY March 31, 2021 J. David Rosenberg College of Law, his 65-year professional career was marked by George Robert O'Bryan Louisville KY May 7, 2021 his resolute tenacity that earned him the John Franklin Rogers Louisville KY December 29, 2018 nickname “Alligator Al.” A veteran who Ronald B. Stewart Williamsburg KY April 3, 2021 served during the Korean War, he joined the FBI after graduating from law school in 1957. He was elected McCracken County Commonwealth’s Attorney in 1964 and ANDREW MARTIN STEPHENS passed on Friday, March 12, 2021, surrounded by loved served until 1977 when he was appointed ones in his home in Jessamine County, Ky. Andy was a graduate of The Lexington School, United States Attorney for the Western Episcopal High School, Rollins College and Northern Kentucky University Salmon P. District of Kentucky by President Jimmy Chase College of Law. He practiced law in his hometown and state since 1981. His family Carter. He entered private practice in 1981 community was large, loud and usually laughing. His legal community was boundless, with and was elected as a state representative in so many colleagues, friends and adversaries, all tasked with the common goal of upholding 1986 where he served until 1992. He was our laws. His spiritual community was small, personal and very important to him - never elected Mayor of Paducah from 1996-2000. for show and very private. He valued friendships, his legal network, love of travel, and above He became of counsel to the Bryant Law all, family. To Andy, family wasn't necessarily about blood or ceremony, it was about love Center of Paducah until his death. and mutual respect. Andy's larger than life personality will leave a hole in many hearts, but they are comforted by the love and good that he spread throughout his time on this earth. The preceding memoriam for James Albert Jones is based upon informa- The preceding memoriam for Andrew Stephens is based upon information obtained from Legacy. tion obtained from Milner and Orr. To com. To access the obituary in its entirety, visit: https://www.legacy.com/obituaries/kentucky/ access the obituary in its entirety, visit: obituary.aspx?n=andrew-martin-stephens&pid=198042455. https://www.milnerandorr.com/obituaries/ James-Albert-Jones?obId=19951606.

72 | JULY/AUGUST 2021 LEONARD STANLEY CHAUVIN, JR. was born in Franklin, Kentucky where he was raised by his revered father, Judge L.S. “Dick” Chauvin, and resolute mother, Lucille Wilson Chauvin along with, as was the way of small Southern towns, the entire populace of Simpson County. Known to and by everyone simply as “Brother,” his idyllic boyhood was filled with (mis)adventures in and around the courthouse, the town square, and/or one or more of the three local pool halls. The center of his universe shifted slightly in 1949 after his narrow-minded despotic high school principal spoke those fateful words: “Brother … if somebody’d give me a nickel, I’d kick you out of this school.” In what has now become an indelible part of local lore, the broad-minded fiercely independent freshman calmly responded by dipping down into his pocket and pulling out a dime. It was, he would later recall, the best ten cents he ever spent; a down-payment on his admission to Castle Heights Military Academy in nearby Lebanon, Tennessee where he spent what may have been the three most influential and enjoyable years of his life.

A proud graduate of the University of Kentucky and an equally proud graduate of the University of Louisville School of Law, Mr. Chauvin was among the last of that greatest generation of remarkable lawyers who set the bar for everyone called to the bar thereafter. He was admitted to practice in eleven states and the District of Columbia and argued cases at all levels of the state and federal court systems including the United States Supreme Court. He was, moreover, known not only as a lawyer’s lawyer but as a litigant’s lawyer, approaching each case as a problem to be solved, not a fight to be won. M. Chauvin was admired by his colleagues for his exhaustive preparation, keen intelligence, unrivaled wit, sartorial splendor, unwavering civility, and respect bordering on veneration for the important role that lawyers play in our society.

His devotion to his chosen vocation drove him to become a leading advocate for the legal profession. He served as President of the Louisville Bar Association, President of the American Judicature Society, Chairman of the Fellows of the American Bar Foun- dation, as well as Chairman of the House of Delegates and President of the American It was Mr. Chauvin’s request Bar Association. Mr. Chauvin traveled the country and the world (including trailblazing that any expressions of sympathy visits to China and the U.S.S.R.) promoting the rule of law, equal access to the courts or memorial tributes (what he for the disenfranchised, juvenile justice issues, prison reform, and the preservation of an referred to as “tangible signs of independent judiciary. He was recognized for his efforts with what he humbly described affection”) be made in form of as “an obscene” number of awards, honors, and tributes. Having greatly and gratefully donations to the Kentucky Bar benefitted as a young lawyer from mentorship by outstanding attorneys such as Daniel Foundation (kybarfoundation.org), B. Boone, John Y. Brown, Sr. and Joseph E. Stopher, Mr. Chauvin paid this gift forward the Louisville Bar Foundation many times over by always making time for young lawyers wanting or needing advice, or (loubar.org), or Her Best Foot just to hear a great story from a masterful storyteller in an expertly-tailored suit. Forward (footforwardfund.org).

Mr. Chauvin was passionate about the political process. He was an aide to Senator Earl Clements in Washington D.C.; was privy to the political machinations of Demo- cratic Headquarters (a/k/a “Fourth Street”); and was intimately involved in numerous local, state, and national political races to include running the presidential campaigns in Kentucky for Senators Robert F. and Edward M. Kennedy. His interest and exhaustive knowledge in the field was reflected in his massive collection of political history books. While he enjoyed scouring used bookstores collecting these tomes, his bliss came from reading them. It has been suggested that the only person who possibly knew more about the New Deal than Mr. Chauvin was FDR himself.

Leonard Stanley “Brother” Chauvin, Jr. passed away at his home on May 12, 2021 surrounded by his family. He was a devoted husband, exemplary father, doting and generous grandfather, an esteemed lawyer and a genuinely nice man who encouraged everyone to “be nice – not just to the people you think you should be or have to be nice to.” He believed that while people may strive for success, wealth, status, or popularity, “the only thing that really matters in the end, and the measure by which we will all ultimately be judged and remembered is simply how well we treat other people.” He will be judged very kindly and remembered very well.

BENCH & BAR | 73 WHO, WHAT, WHEN & WHERE

Kerrick Bachert attorney Tom Kerrick is the 2021 recipient of the Bowling Green-Warren County Bar Association’s Gwyneth B. Davis Outstanding Public Service Award. This award was established in 1988 and is presented annually to a member of the bar who is dedicated to principles of community spirit, including a commitment to causes which enhance justice and civil rights and a person who has contributed outstanding public service to our community. He was recognized for his work as the President of the Kentucky Bar Association and specifically for his leadership in promoting attorney health and mental well-being during the COVID-19 pandemic. He has personally led the state bar association’s response to attorney suicides over the past year. His leadership has led to increased mental health awareness and programming for Kentucky’s lawyers. His work with the Kentucky Lawyer Assistance Program (KYLAP) has been a big part of his service as a member of the KBA’s Board of Governors over the past decade.

Have an item for Who, What, When & Where? The Bench & Bar welcomes brief announcements about member placements, promotions, relocations and honors. Notices are printed at no cost and must be submitted by email to Megan Couch at [email protected]. Digital photos must be a minimum of 300 dpi and two (2) inches tall from top of head to shoulders. There is a $15 fee per photograph, effective September 1st. Photo fees must be paid online at www.kybar.org/store/viewproduct.aspx?id=18464343. Durrett & Kersting, PLLC, is pleased to announce that Cynthia Magruder has joined the firm as an associate. Magruder joins the firm from the Louisville Metro Public Defender’s Office. She is a O’Bryan, Brown & Toner, PLLC, is pleased 2003 graduate of the University of Kentucky with a B.A. in psychol- to announce that Noel Halpin has been named ogy and minor in sociology. After working as a paralegal and social a partner with the firm. Halpin was born and worker, she earned J.D. from the University of Louisville Louis D. raised in Dublin, Ireland. He graduated cum Brandeis School of Law in 2018. She will be helping clients of laude from University College Dublin with a Durrett & Kersting navigate the areas of family and criminal law. B.A. in economics and political science, and a graduate degree in business studies. Halpin The Academy of Music Production Education received his J.D. from the University of Ten- and Development (AMPED) has named Stites nessee College of Law. His practice includes & Harbison, PLLC, attorney Calesia Henson defense of physicians and hospitals in medical negligence claims, to its board of directors. She will serve a three- premises liability, insurance coverage disputes, and other general year term. Henson is an attorney based in Stites civil liability causes of action. & Harbison’s Louisville office. She is a member of the business litigation and employment law Debra L. Broz, Attorneys at Law, PLC, is service groups. Beyond working with AMPED, pleased to announce that Heather Harryman she is active in a variety of community organi- Wade has joined the firm. She focuses her prac- zations, including serving on the Board of Directors of KMAC tice on bankruptcy and mass torts. Wade has Museum and Junior Achievement’s Young Professionals Board. 16 years’ experience in areas including domes- AMPED is a non-profit organization with the mission to provide tic relations, probate, and products liability. a free music program that uses music and technology as a catalyst She earned her B.S. from Western Kentucky to empower youth and their families to work as a team, learn how to University and her J.D. from the University of express themselves effectively and develop into productive members Kentucky J. David Rosenberg College of Law. of the community.

74 | JULY/AUGUST 2021 Vince Aprile, of Lynch, Cox, Gilman and Goodman, P.S.C., in sale of multifamily, office, retail, industrial and other commercial Louisville, had his column, “Guilty Plea Conditions: Skewing the properties nationwide. YPAL’s mission is to connect, engage and Criminal Justice System,” that appeared in the Fall 2020 issue of develop Louisville’s young professionals through numerous leader- the ABA’s Criminal Justice magazine selected and published in ship, educational and networking opportunities, while representing abridged form in the ABA’s GP Solo magazine, May/June 2021 their interests to community leaders. issue, in the “Best of the ABA Sections,” “a compilation of some of the best articles published by the ABA’s sections, forums, and Five Frost Brown Todd (FBT) attorneys in the firm’s Louisville divisions.” This is the sixth time that one of his columns or articles office have been promoted to member. Devon Callaghan, Liam has been selected for this honor. He continues as the author of his Felsen, Miles Harrison, Colin Stouffer and Doug Walter are part column, Criminal Justice Matters, a regular feature of the magazine of a group of 10 attorneys firm-wide who earned promotions. Three for some 29 years (1992 to present), such as his recent column, practice with FBT’s real estate and commercial mortgage-backed “Countering the Bias Against Autism in the Courtroom.” securities (CMBS) group. Other practices include product liability, and tort and business litigation. Callaghan is a member with the The Young Professionals Association of Louis- CMBS team in the Louisville office. She works with CMBS lend- ville (YPAL) has selected Stites & Harbison, ers financing a wide variety of commercial assets including offices, PLLC, attorney John Weber to take over the hotels, shopping centers, multifamily properties, and self-storage president-elect position vacated by Cassidy properties. She is a graduate of University of Kentucky J. David Hyde, as she was hired as the organization’s Rosenberg College of Law. Felsen is a member with the products, executive director last month. Weber transi- tort and insurance practice group in the Louisville office. He focuses tioned to president of the 2021-22 board of his practice on product liability defense, fire and explosion litigation, directors on July 1, 2021. He previously served premises liability, personal injury, tort and insurance (including bad as YPAL’s secretary and general counsel. Based in Stites & Har- faith), business litigation, and drug and medical device. Felsen’s bison’s Louisville office, Weber is a member of the real estate and product liability work includes automobiles, motorcycles, mining banking service group. His practice focuses on commercial real equipment, agricultural equipment, natural gas explosion, and med- estate and business transactions, advising developers, investors and ical devices. Felsen is a graduate of the University of Louisville lenders in the acquisition, construction, development, leasing and Louis D. Brandeis School of Law. Harrison is a member with the business litigation practice group in the Louisville office. He has experience handling various complex commercial and insurance litigation matters, including cases involving breach of contracts, business torts, securi- Talk to us about LEGAL MALPRACTICE ties litigation, trade secrets, non-compete And learn why lawyers throughout Kentucky refer their legal agreements and other restrictive covenants, real estate litigation and title disputes, envi- Malpractice cases to William F. McMurry and Associates ronmental litigation, ERISA, and bad faith claims. As part of his practice, he also has Building referral relationships based on significant experience handling a variety of confidence and trust. class action matters, including consumer actions, environmental torts, sales tax, and William F. McMurry is Board Certified health benefits claims. He is a graduate of the University of Illinois College of Law. as a Legal Malpractice Trial Specialist Stouffer is a member with the CMBS prac- By the American Board of Professional tice group in the Louisville office. He has Liability Attorneys (ABPLA.org) been involved in hundreds of commercial loan transactions, working with lenders and The ABPLA is accredited by the ABA borrowers financing a broad array of com- to certify specialist in the field of mercial assets. Stouffer also has experience Legal Malpractice – SCR 3.130(7.40) handling Delaware Statutory Trust loans,

tenancies-in-common, mezzanine loans and Email [email protected] other complex deal structures. He is a grad- Call 502-326-9000 uate of the University of Arizona James E. Rogers College of Law. Walter is a member William F. McMurry will personally handle each case while with the CMBS practice group in the Lou- some services may be provided by others. isville office. Walter focuses his practice on representing lenders in complex real estate transactions nationwide. His transactional

BENCH & BAR | 75 WHO, WHAT, WHEN & WHERE

experience includes mortgage and mezzanine loans secured by all The law firm of Kohnen & Patton LLP is pleased to announce major commercial asset classes, as well as stabilized and construc- that Robert A. DeBlasis has joined the firm as an associate in the tion deals. He is a graduate of University of Cincinnati College of litigation department. He earned his J.D. from the University of Law where he interned for the Ohio Innocence Project. Cincinnati College of Law. As an experienced civil litigator with a background in business and an aptitude for numbers, he assists Katie Reisz has joined Hosparus Health as clients with a variety of commercial business matters that include associate counsel. She brings 10 years of litiga- all aspects of the civil litigation process. He has appeared in courts tion experience in a variety of fields, including throughout Ohio and Kentucky and he has tried numerous cases. commercial disputes, employment law, torts, and hospital and long-term health care defense. In her new role, she will assist the general counsel of the organization, advising on legal and Don Walton and Donnie Niehaus are excited risk matters. She comes to Hosparus from Mid- to announce the opening of their workers’ dleton Reutlinger and earned her law degree from the University compensation defense firm,Walton Niehaus of Louisville Brandeis Louis D. School of Law. Law, PLLC. Walton Niehaus Law has over 30 years of combined experience representing and Judge Barry Willett retired July 1, 2021, after a advising insurance companies and employers 22-year judicial career as Jefferson Circuit Court in workers’ compensation claims across Ken- Judge. He was elected by his fellow judges as tucky. Over the course of their careers, they have the Chief Judge of the Jefferson Circuit Court successfully argued cases that have established for 2020-2011. Chief Justice John D. Minton, precedent in the field of workers' compensation. Jr., appointed him the Chief Regional Judge for Both of Walton Niehaus Law's attorneys have the Metro Region for 2010-2011. The Kentucky received the Martindale-Hubbell AV Preemi- Justice Association honored Judge Willett with nent Rating. its Henry V. Pennington Trial Judge of the Year in 2017. Judge Willett will be Joining Retired Judges & Associates Mediation and Arbitration Services following his retirement from the bench.

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Gina I. Rogers, RN, BSN, LNCC NO RISK If we can’t find an expert, YOUR STRATEGIC PARTNER we refund 100% of your fee. (270) 726-3211 www.medicalreviewconsulting.com 76 | JULY/AUGUST 2021 The Leadership Louisville Center has selected Professionals Association of Louisville (YPAL) Foundation, is Stites & Harbison, PLLC, attorney James a graduate of Leadership Louisville’s Focus Louisville 2018, and Hayne to participate in the Ignite Louisville she was a Human Rights Advocacy Project Fellow in law school. Class of Fall 2021. The six-month class teaches Michael earned her J.D., magna cum laude, from University of the key components of leadership to young Louisville Brandeis School of Law. professionals between the ages of 25 and 45 years old. Hayne is a registered patent attor- O’Bryan, Brown & Toner, PLLC, is pleased ney and member of the intellectual property & to announce that Scott Burroughs has been technology service group located in the firm’s named a partner with the firm. He graduated, Louisville office. His practice focuses on patent preparation and magna cum laude, from The Ohio State Uni- prosecution, both foreign and domestic. Hayne has experience versity with a B.A. in history. He earned his prosecuting patent applications covering a wide range of subject J.D. in 2011 from the University of Kentucky J. matter, including electronic hardware and software, consumer goods David Rosenberg College of Law, where he was and manufacturing equipment. Created in 1979, the Leadership a member of the National Moot Court team, Louisville Center is the region’s most valuable resource for leader- Moot Court treasurer, and vice-president for the Environmental ship development and civic engagement. Its mission is to grow and Law Society. His primary area of practice is insurance defense lit- connect a diverse network of leaders who serve as catalysts for a igation with a particular focus in medical malpractice defense and world-class community through dynamic programming and strong workers compensation defense. community connections. Frost Brown Todd (FBT) promoted associates Jacinta Porter and Lawrence and Associates is pleased to welcome Hamid Sheikh to member. Porter works in the products, tort and Meagan Tate as an associate attorney at the insurance practice groups. Sheikh works with the real estate practice firm. Tate has over 10 years of experience in group. Both sit in FBT’s Lexington office. Porter is a member with litigation, having represented both plaintiffs the products, tort and insurance practice group in the Lexington and defendants in personal injury, medical mal- office. She has helped defend numerous products, including pre- practice, claim investigation, insurance coverage, scription drugs and medical devices. Porter has defended public and insurance bad faith litigation. In addition and private employers in actions alleging, among others, ADA to her law practice, she is an adjunct instructor violations, gender discrimination, race discrimination, retaliation, at the University of Cincinnati where she teaches courses in civil and termination in violation of public policy. She is a graduate of litigation, evidence, and legal research. Her primary focus areas at the University of Kentucky J. David Rosenberg College of Law. Lawrence and Associates are plaintiff's personal injury and workers' Sheikh is a member with the real estate practice group in the compensation. Lexington office. He focuses on commercial real estate and lending transactions in the multifamily and retail industries, as well as all Louisville’s Metro Council recently approved other asset classes. Hamid represents syndicators, credit tenants, 11 citizens to its newly formed Civilian Review landlords, investors, lenders and borrowers on a local, regional and and Accountability Board. Two of these board national basis. In addition, his practice includes a variety of real members are Wyatt attorneys, Turney Berry, estate and lending disputes and land use and zoning matters. Hamid leader of the firm’s estate planning team, and is a summa cum laude graduate of University of Kentucky J. David Marianna Michael, member of the firm’s liti- Rosenberg College of Law and a summa cum laude graduate of gation & dispute resolution team. The mission University of Kentucky College of Business. of the board is to work with the inspector general to examine practices put in place by the Keuler, Kelly, Hutchins, Blankenship & LMPD. They will also be tasked with review- Sigler, LLP, is pleased to announce that R. ing new policies, standing operating procedures Brent Vasseur joined the firm as a partner at and making recommendations to the mayor and the beginning of 2021. He concentrates his council on how to improve the LMPD’s oper- practice in the areas of insurance defense, work- ations. Berry is a nationally recognized leader ers comp, civil litigation, and employment law. in the areas of estate and business planning, He earned his B.A. and J.D. from the University estate and trust administration, and charitable of Kentucky. He is licensed in Kentucky where giving and tax-exempt organizations. He leads he has been practicing law for 27 years. the firm’s trusts, estates & personal planning team. Berry earned his J.D. from Vanderbilt University. Michael is a member of Wyatt’s litigation & dispute resolution team. She assists in the representation of a broad range of clients in a variety of cases including commercial disputes, employment matters, immigration law, and employee benefits. Michael serves on the board for the Young

BENCH & BAR | 77 WHO, WHAT, WHEN & WHERE

Wyatt, Tarrant & Combs, LLP, is pleased to Zachary Webster joins McBrayer PLLC as announce that one of its attorneys, Virginia associate. He previously practiced at the firm of Snell, was named by the board of directors of Overly & Johnson, LLC, in Paris, Ky., and spent the Kentucky Association of Criminal Defense time working in the banking and finance sector Lawyers (KACDL) as the co-recipient of the in New York City before that. His primary organization’s 2020 Distinguished Service practice is in the areas of real estate, creditors Award, which is presented to lawyer advocates rights, bankruptcy and litigation. He is a 2006 whose service to the KACDL and contribu- graduate of the University of Alabama School tions to its mission have resulted in significant of Law and a 2001 graduate of the University improvement of the criminal justice system. Snell received this of Alabama. award for her pro bono representation in the constitutional challenge to Marsy’s Law. She chairs the firm’s Appellate Advocacy O’Bryan, Brown & Toner, PLLC, is pleased to Practice. Her experience encompasses a wide range of issues, includ- announce that Joseph P. Mankovich has joined ing constitutional, contract, statutory, class action, regulatory, legal the firm. He graduated from the University of malpractice, trusts and estates, wrongful death, tax, healthcare pro- South Carolina with a B.S. in accounting. He vider, employment, and business disputes, over, for example, fraud, earned his J.D. from the University of Kentucky fiduciary duty, lender liability, shareholder rights, or covenants not J. David Rosenberg College of Law, where he to compete. Snell earned her J.D. from University of Texas Law was an editor for the Kentucky Law Journal School, with honors. and was named most outstanding third-year staff editor. Mankovich has been licensed in Kentucky since 2012. His practice focuses on medical-malpractice defense, nursing-home defense, and appellate work.

78 | JULY/AUGUST 2021 B&B MARKETPLACE

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BENCH & BAR | 79 B&B MARKETPLACE

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