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Underwritten by: Metropolitan Life Insurance, 200 Park Avenue, New York, NY 10166 This issue of the Kentucky Bar Association’s VOL. 81, NO. 1 B&B-Bench & Bar was published in the month of November. COMMUNICATIONS & Contents PUBLICATIONS COMMITTEE 2 President’s Page James P. Dady, Chair, Bellevue By: Mike Sullivan Paul Alley, Florence Elizabeth M. Bass, Lexington 4 2017 KBA Diversity and Inclusion Summit James Paul Bradford, Paducah 5 2017 KBA Annual Convention Speaker Information Frances E. Catron Cadle, Lexington Anne A. Chesnut, Lexington 6 Tribute to Former KBA President Doug Myers Rachel Dickey, Louisville 9 Book Review Tamara A. Fagley, Lexington By: Professor Robert G. Lawson Mark Flores, Lexington Cathy W. Franck, Crestwood Features: Drone Law Lonita Baker Gaines, Louisville William R. Garmer, Lexington 10 Drone Law: FAA Regulation—When Hobby Use Laurel A. Hajek, Louisville Ends & Commercial Use Begins and What to Do P. Franklin Heaberlin, Prestonsburg When The FAA Comes a Knockin’ Judith B. Hoge, Louisville By: J. Allan Cobb and Andrea R. Hunt Jessica R. C. Malloy, Louisville 16 The Use of Drones for National Security Purposes Eileen M. O'Brien, Lexington By: J. Peter Hill Richard M. Rawdon, Jr., Georgetown Sandra J. Reeves, Corbin 20 The Privacy Battle Between Drones and Homeowners By: Larry Hicks Gerald R. Toner, Louisville Sadhna True, Lexington 24 Drone Law (or Lack Thereof ): A Legislative Perspective Zachary M. Van Vactor, Louisville By: Tyler Peavler Michele M. Whittington, Frankfort Columns PUBLISHER 27 Northern Kentucky University Salmon P. Chase College of Law John D. Meyers EDITOR 28 University of Kentucky College of Law James P. Dady 30 University of Louisville Louis D. Brandeis School of Law MANAGING EDITOR 32 Effective Legal Writing Shannon H. Roberts By: JoAnne Sweeney DESIGN & LAYOUT 34 Young Lawyers Division Jesi L. Withers By: Rebecca R. Schafer

The B&B - Bench & Bar (ISSN-1521-6497) Bar News is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 36 KBA Board of Governors Minutes and Upcoming Meeting Dates KY 40601-1812. Periodicals Postage paid at 38 Ethics Opinion E-439 Frankfort, KY and additional mailing offices. All manuscripts for publication should be sent 40 Judicial Nominating Commission Results to the Managing Editor. Permission is granted 43 February 2017 Kentucky Bar Applicants for reproduction with credit. Publication of any article or statement is not to be deemed an 44 Order Amending Rules of the Supreme Court (SCR) 2016-11 endorsement of the views expressed therein by the Kentucky Bar Association. Departments

Subscription Price: $20 per year. Members 46 Continuing Legal Education subscription is included in annual dues and is not less than 50% for the lowest subscription price 50 Kentucky Lawyer Assistance Program paid by subscribers. For more information, call To view the current Hot (502) 564-3795. 52 Kentucky Bar Foundation Topics article, written by POSTMASTER Robert Brammer, visit 56 In Memoriam www.kybar.org/page/ Send address changes to: hottopics. B&B - Bench & Bar 58 Who, What, When and Where 514 West Main Street Frankfort, KY 40601-1812 Several inside graphics by ©istockphoto.com/JesiWithers

BENCH & BAR | 1 PRESIDENT’S PAGE

Lawyers, Technology and the KBA’s New Law Practice Task Force

CR 3.130(1.1) of our Kentucky Rules of Professional Conduct provides that all Kentucky lawyers have a duty to provide competent representation to their clients. Comment 6 S to that rule states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” This competency requirement may extend to technology issues facing the practice of law. BY: MIKE SULLIVAN For example, Rule 1.4 requires us to keep information related to the representation of a client confidential unless the client gives informed consent or other limited exceptions exist. Rules 5.1 and 5.3 require lawyers in charge of others to ensure their conduct is compatible with the professional obligations of the lawyer. Together, these rules require lawyers who use technology in their practice to take competent and reasonable steps to ensure the confidentiality of client information. In today’s world of email, texts, and sharing or storing information online “in the cloud” or on a server, the risks of a breach of that confidentiality are higher than ever.

A March 29, 2016, Wall Street Journal article detailed computer breaches at two of the largest firms in the country, Cravath, Swain & Moore LLP and Weil, Gotshal & Manges LLP. In early 2016, we also heard about the “Panama Papers” when an anonymous hacker disclosed approximately 11.5 million confidential documents obtained from the internal database of Panamanian- based law firm Mossack Fonseca. These documents identified leaders of various countries who had deposited money in offshore accounts located in tax havens such as the British Virgin Is- lands and the Bahamas.

Smaller law firms and solo practitioners are not immune from attack. These breaches can often begin with “phishing,” an email sent to the firm that looks legitimate, but requests either password information or provides a link to click on, which can result in granting access to the hacker who sent the email. “Ransomware” can be downloaded unknowingly from a suspicious email, website, or ad. The downloaded program can limit the functionality of your computer or disable it and en- crypt all of your files. There is often a ransom, as low as $500 but it can be larger, that must be paid to the hacker in exchange for a decryption key to restore access and use. This risk can be mitigated by frequent back up of your data to a separate storage server or site that can restore all data up to the previous day. Ransomware attacks can be prevented or limited by spam-filtering systems that block the suspicious emails, anti-virus software, and training of employees.

Ethics Opinion KBA E-437, issued March 21, 2014, addressed the issue of attorneys storing client information “in the cloud.” The cloud is a remote location that is not under the control of the lawyer but is controlled by a third party who provides data storage or other service. The opinion provides that “[u]se of this technology is ethically proper if the lawyer abides by the Rules of Professional Conduct by safeguarding client confidential information, by acting competently in using cloud computing services, by properly supervising the provider of the cloud service, and by communicating with the client about the use of cloud services when such communication is necessary given the nature of the representation.”

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second kentucky bar association In addition, some clients now ask lawyers to comply with requirements to ensure the confidentiality of client information. This can include minimum security standards such as firewall protection, anti-virus protection, and security patch management. A client may require the use of encrypted email that can only be opened with a password or internal controls within a law firm so that only those persons working on a client’s matter can access that client’s information stored on the firm’s server.

A client recently asked our firm to comply with similar requirements. Of course, many of the requirements were difficult to understand upon first review. After a few hours of work with the help of our IT contractor, we understood what we had to do to comply and took the steps to do so. However, these issues demonstrate the lawyer’s need to be familiar with technology in the lawyer’s office.

Technology has also changed how lawyers handle marketing. Back in the day, and I find myself PLANNED FOR APRIL 7, 2017 using that term more often as I become a more “seasoned” lawyer, the lawyer’s marketing The Kentucky Bar Association is pleased to announce that work was limited to deciding if and the second Diversity and Inclusion Summit will take place how he or she wanted to advertise in April 7, 2017, at the Hilton Lexington Downtown. the Yellow Pages. Now, we have web- sites, Facebook, Twitter, and other in- This two-day event will begin with a pipeline project that ternet/social media outlets where lawyers will expose exceptional high school and college students can market or share information about them- from diverse backgrounds to a career in the law. The stu- selves, and it is hard for many lawyers to keep up dents will participate in mock law school classes and will with all these avenues and how they operate. interact with lawyers and judges.

As I mentioned in my first President’s Page article, due to the The second day will feature six hours of continuing legal ed- changing job market and less opportunities for new lawyers, we ucation focusing on diversity training, cultural competency see many more members hanging their own shingle. These new and civility, and legal issues affecting diverse populations. lawyers, like many of the rest of us, have a difficult time learning We are pleased to have secured a distinguished lineup of and keeping up to date on all the issues facing us in the practice speakers including Robert J. Grey, Jr. (former President of of law, including technology issues. Many of these lawyers cannot the American Bar Association and current President of the hire additional staff to handle these office management issues. Leadership Council on Legal Diversity), Judge Mark W. Bennett (U.S. District Court Northern District of Iowa), Due to these issues and many more, and consistent with its recent- Judge Denise Clayton (Kentucky Court of Appeals), and ly adopted strategic plan, the KBA has established a Law Practice Ericka Hines (national diversity expert). Task Force. Chaired by Bowling Green attorney Robert Young, a past chair of the ABA Law Practice Division, and with the as- The summit will provide practical resources and ideas for sistance of other dedicated attorneys from solo, small and large firms to implement their own diversity and inclusion pro- firms, as well at the government sector, this task force will focus grams. Additionally, information will be provided to assist on four areas: technology, management, marketing, and finances. management and other administrators with handling diver- We hope that that this task force will help the KBA provide a sity issues. The program will also emphasize ways to em- valuable resource for our members to use in their law practice. The power attorneys from diverse backgrounds to work through task force will publish an article in each issue of the Bench & Bar, these same issues to become successful contributors in their provide programs at the Kentucky Law Update, and add resources places of employment. to the KBA website. We are very excited about what this task force can do to assist and educate our members. Stay tuned. The first Diversity and Inclusion Summit was held in 2015 in Louisville and was a great success. We are working to build upon that program and hope to continue with a summit every other year.

Please save the date and make plans to attend this important event. Registration information will be available soon.

4 | JANUARY/FEBRUARY 2017 2017 ANNUAL CONVENTION

J 21 JOIN US IN OWENSBORO FOR THE 2017 KBA ANNUAL CONVENTION J 23 BLUEGRASS, BARBEQUE & STELLAR CLE PROGRAMMING!

THE 2017 ANNUAL CONVENTION Planning Committee is pleased to announce the following speakers scheduled for the June 21-23 convention at the Owensboro Convention Center in downtown Owensboro. More information on additional speakers, presentations, and events will be available in the March 2017 issue of the Bench & Bar. Please mark your calendars now to attend!

ON WEDNESDAY, JUNE 21, JERRY BUTING, one of the defense attorneys for Steven Avery in the Netflix documentary series“MAKING A MURDERER,” will hold “A Conver- sation on Justice.” RABIA CHAUDRY will join us thereafter. She is the public advocate for Adnan Syed, the wrongfully convicted man at the center of the most popular podcasts in history, “SERIAL” and “UNDISCLOSED.”

ON THURSDAY, JUNE 22, MARK WHITACRE, who was the subject of the book and major motion picture (starring Matt Damon) “THE INFORMANT,” will speak. He was the whistleblower in the mid-1990’s Archer Daniels Midland price fixing conspiracy, wore a wire for the FBI for almost three years and spent time in federal prison.

ON FRIDAY, JUNE 23, the programming will be packed with fun and interesting sessions, such as “Better NOT Call Saul: Professional Ethics Lessons from ‘Break- ing Bad,’” “Hamilton, Not the Musical,” and “Fantasy Sports: The Challenging Legal Landscape.” Also in the lineup is MATT JONES, Kentucky attorney and host of “Hey Kentucky!” and “Kentucky Sports Radio,” who will join us to discuss compliance and legal issues in collegiate sports. Topping off Friday’s schedule will be the featured presentation; AMANDA KNOX will share her story. She is the American exchange student who spent almost four years in an Italian prison, following her conviction for the 2007 murder of Meredith Kercher, a fellow exchange student who shared her apartment. In 2015, Knox was definitively acquitted. COME JOIN US IN BEAUTIFUL OWENSBORO IN JUNE 2017! OUR EVOLVING

PROFESSIA ND TH E KENTUCK Y ONLAWYER OWENSBORO, KY JUNE 2123, 2017

BENCH & BAR | 5 REMEMBERING DOUG MYERS

REMEMBERING KBA PAST PRESIDENT Doug

BY: J. STEPHEN SMITH KBA GOVERNOR MyersFROM THE 6TH SUPREME COURT DISTRICT

very summer, during the Kentucky Bar Association (KBA) Convention, we hold a memorial service for departed mem- E bers of the bar, ringing the bell once as each and every name is read aloud. Every deceased member was a member of a family, a community, and a great contributor to those she/he served as a children, the product of parent’s love and guidance. I will miss lawyer. Being a Kentucky lawyer is something we all hold dear, Doug’s friendship and good humor, but the KBA will be here to and this article is to celebrate one who distinguished himself in help Jan and their family in any way that we can.” service; service to his family, to his friends, to his community, to his fellow lawyers, and to his faith. Doug Myers, from Hopkins- Longtime best friend, fellow lawyer, and vacation partner Scott ville, was a very good man. Madden gives some insight into Doug’s personality. “For such a fun and sociable guy, you could only push Doug so far. After In writing about Doug, however, it strikes me that so many people listing his previous home for several months Doug made a deal knew him in various ways that this celebration should be shared. with the eventual buyer. The next day the buyer returned asking Rather than just me writing about Doug, let those who knew him Doug to throw in the old farm tractor. Doug’s immediate re- tell something in remembrance. Doug was our KBA president in sponse was no, and hell no. Right is right and a deal was a deal 2012-2013, and served the bar in many other capacities for over a with Doug.” And also that “While delivering concrete down the decade. We form special friendships on the Board of Governors, cliff to Doug’s new home, the truck lost braking and damaged and though I knew Doug from about 2005 onward, others knew three ugly sweet gum trees. Doug calmly explained to the ad- him as long and longer. Hopefully their stories will spark some re- juster in Chicago just how important and valued these magnifi- membrance of Doug from different parts of the Commonwealth, cent trees were but accidents happen. He settled for a significant or even spark a memory of another lawyer for whom we will ring sum. Right is right after all.” a bell next June in Owensboro. Former Board Member from Paducah, Jon Freed’s remembrance Current KBA President Mike Sullivan from Owensboro reflects of Doug focuses on what Doug taught us all: “A little over four on family and says that “I cannot talk about Doug without also years ago, the Christian County Bar Association held a beauti- mentioning his lovely wife, Jan, and that is a testament to both of ful reception in Doug’s honor when he was installed as the KBA them. One of my first memories of Doug involved my first Board President. At that time, Judge Atkins invited me to address the of Governors meeting in 2007, the summer meeting at Dale gathering; I’m speaking today simply because I owe it to Doug. Hollow State Park. I brought my wife and young children to the meeting, and both Doug and Jan greeted all of us with open arms. We have all experienced a mixture of shock, grief, and anger this I am sure others will tell you of Doug’s great accomplishments as past week, which is beyond our capacity to process. None of us can an attorney and leader of the bar, and there are many, but what I reconcile moving forward without Doug because he profoundly remember most about Doug is his fine example as a husband, enriched our lives. None of us can synthesize what’s happened father, and grandfather. His wife came first, and Jan has and had because none of us imagined the upcoming years without Doug’s the same regard for Doug. Doug and Jan raised three amazing involvement.

6 | JANUARY/FEBRUARY 2017 leagues. He exhibited a level of professional courtesy that should be emulated by all lawyers. Practicing law with Doug, whether on his side or not, was a joy. I found myself smiling a lot.”

Mindy Barfield, KBA Governor from Lexington, reflects on Doug’s skill and friendship. “Several years ago I represented an insurance company charged with acting in bad faith in the handling of a wrongful death case. Both the underlying wrongful death and bad faith cases were pending in Christian County. One of the issues in the case was the value of the claims for loss of consortium prosecuted by the decedent’s surviving children and if the insurance company had accurately evaluated those claims and made appropriate settlement offers. I wanted to hire an expert who would be a credible source for predicting what a typical Christian County jury would award in a case given the facts at hand. My mind went immediately to Doug Myers. I knew ‘of ’ Doug but did not know him personally. I knew he was an active member of the Kentucky Bar, having just served as KBA President. I also knew his practice was primarily plaintiff personal injury work I thought these two qualities alone would fit the bill for me, but didn’t know whether As attorneys, we all learned valuable lessons from our interaction he would even agree to work for a defense lawyer or if given his with Doug. We learned that success was not defined by how much prior work his views would support my clients. I called him out of we won or how little we were paid, but instead whether we could the blue, and there began my friendship with Doug Myers. Doug meet the challenge of an adversary as skillful and persuasive as not only agreed to consult with me, he seemed to relish the in- Doug was. Coach Crum’s description of ‘double tough’ comes to tellectual challenge of assessing my case. Of course, he cautioned mind. Yet, when challenged by Doug, if you achieved the best pos- that I would be buying his time, not his opinion and that he could sible result for your client, we learned it was okay to congratulate not guarantee that his views would coincide with mine. It won’t your adversary. Through this process, true respect was shared, and come as a surprise to those who knew him that he jumped in head lasting friendships evolved. first. He knew the claim file and attorney files from the underlying injury case backwards and forwards. He reviewed his prior medi- Doug was a thoughtful and generous friend. At his suggestion, ations and scoured the Kentucky Trial Court Reporter for recent many of us involved in the KBA developed lasting friendships verdicts. He obtained jury verdict forms from prior cases. He through our connection with Doug and the fulfillment from our interviewed other local lawyers, and he dissected these cases and time spent together on behalf of our profession. compared them with mine. I was of course thrilled that his ultimate opinions did support my client’s evaluation of the claim and As a mediator, how many hundreds of strangers did Doug help? that I was thus able to identify him as an expert for the defense. Doug’s unique qualities as a leader—his insight, experience, and But what I discovered as an added bonus was his absolute authen- his charisma—enabled him to penetrate walls of resistance erect- ticity and sincerity: he may have been a plaintiff lawyer at heart, ed through years of litigation in the space of one day or less. but that didn’t skew his candid evaluation of my case. He truly believed in the position the insurer had taken. Later, when I came While his colleagues and friends mourn his loss, an even great- to Hopkinsville for his deposition, I was treated to lunch at Duo’s er void exists among his partners who worked with him and the BBQ where he introduced me to fried cornbread and of course staff who supported him loyally for so many years. Greater still is everyone in town who happened to be there that day. His dis- the unimaginable loss of his family, and our hearts go out to Jan, closure of course resulted in numerous challenges to Doug’s test- Jenny, Will, Jordan and their families, and his brother Dennis and imony, in light of how deadly he likely would have been as a his family. It is my hope that we all find a path forward that will witness. The case settled, but that did not end my friendship with permit us to replace the bitterness of this loss with the enduring Doug. Because of his ongoing service to the KBA, I got the chance memory of Doug’s sweet spirit.” to spend time with he and Jan at Board of Governor functions Fletcher Schrock, also from Paducah, shares his thoughts throughout the state and at the 2016 Convention. Doug never when changed. He was always happy, upbeat and energetic. He was the he thinks of Doug. “When I think of Doug Myers I smile. Maybe kind of person you gravitated to at a function. The kind you want- that’s because it seems as if he had a perpetual smile. When- ed to sit next to at lunch. The kind of person you want to spend ever I’d see him, he’d give me that smile, a warm greeting and a time with. The kind you confide in. His demeanor never changed, handshake. He had that demeanor that communicated, ‘I hope whether he was on the lake with his family, chairing the KBA you’re having as much fun as I am!’ He truly enjoyed practicing Strategic Planning meeting or being my expert. He was always so law and treated others with respect and kindness. He understood full of life, which makes his all too sudden death at such a young that a life well-lived involves cultivating relationships. That in- age all the more tragic. I am so grateful I got to know him and that cludes relationships with family, friends or professional col- I could call him friend. He was a class act.” BENCH & BAR | 7 REMEMBERING DOUG MYERS

John Meyers, Executive Director of the KBA, reflects that “I work- he’d stop. He worked hard for clients and to make Kentucky laws ed closely with Doug during his tenure as KBA President. He work better for Kentucky citizens.” struck just the right balance of informed oversight without exces- sive involvement in the routine operations of the Bar Center. Even Jan says that Doug “was a Re- after he moved off of the Executive Committee, I considered him naissance man, good at law but to be a trusted sounding board for me on challenging issues. I al- also good at arranging furniture ways knew that I could count on Doug for solid advice that would in a room, choosing colors, and help us achieve the best results; but most of all, I’ve lost a good just generally knowing what he friend and we’ve all lost a great person. liked.” He was a landscape ar- chitect too and never shied away Maggie Keane, past president of the KBA and close friend to Doug from getting his hands dirty. from Louisville, contributes that: He is a treasure: A treasure to get Doug “valued truth, and he did to know because I discovered there was and never will be anyone not judge people. He really did else like him; a treasure to rely upon because he could be depended accept and appreciate differenc- upon in even the most difficult of circumstances; a treasure to fol- es in people.” He was “so humble, though he was very smart and low because he led with such strength and confidence; a treasure had a giant intellect, he never flaunted it. I used to tease him that to admire because of how he treated his fellow human beings; a he knew just enough about everything to be dangerous.” treasure to learn from because he taught the most important thing is the quality of your character; a treasure to laugh with because it Jan recounts that Doug’s mother “made him read Emily Post as was never at anyone else but sometimes at himself; a treasure to a young teenager, so that he could have dined on the Titanic. His miss because the pain of it brings him closer to my heart.” father made sure he was a true Southern gentleman in all the other ways. His manners were impeccable in all occasions and situ- David Sloan, past president of the KBA, from Ft. Mitchell talks ations. His mother and father were wonderful Christian parents, about Doug’s sense of service. “Serving on the Board of Gover- parents-in-law and grandparents. His life’s example was set in all nors (BOG) with him was a real treat. Not only was he a dedicat- areas by them.” ed BOG member and officer, he remained in service to the KBA, its membership and our profession. He had just gone on the Ken- He was intensely proud of his children in their professional ac- tucky Bar Foundation and, most recently, was very instrumental in complishments, but much, much more in the quality of their char- securing funding for the continuation of the KLEO program (at a acter. Their moral values, their love for their own families and love time when government cuts were coming fast and furious). Seems for fellow man was paramount in his opinion of their lives. the good Lord always takes the good ones. Doug was a lifelong Christian and exhibited those values in all Anita Britton, past member of the Board of Governors from Lex- areas of his life—husband, father, grandfather, son, brother, friend, ington: “What I remember most intensely about Doug is how lawyer. He was a deacon in their church and Sunday school teach- terribly jealous I was of him. He had a robust law practice, well- er of both adults and young people. respected in his area and well beyond, and was by all accounts, thought well of in every corner of his community. But that is to Doug was such a family man, and he had expressed his wish for be expected of one who has been chosen a leader by his peers. another grandchild. This holiday, his son Will and his wife Kelly No, my jealousy had nothing to do with all that. I smiled in my are expecting, and Jan sees the symmetry in the upcoming birth. If heart every time he spoke of Jan. My eyes often glistened when I the child is a boy, all bets are off on the name. witnessed them together. Everyone deserves to be loved the way I Finally, I can tell you from personal experience saw them love each other. Everyone deserves that joy and I am so what a generous happy for my friends that they had that in each other. If we had person Doug was with his time, knowledge, and experience. I to lose Doug, at least we know he had the sheer joy of that rich, benefited from all three. He never shied away from a tough con- deep, unfailing love with Jan and that, in turn, will sustain not only versation, idea, or intellectual challenge. The nature of his per- Jan, but those of us who cared about them both. Even if we were sonality required friendship and respect even when disagreeing a little bit jealous. on an issue. Doug and Jan’s hospitality and effusive personalities helped me relax in the unfamiliar territory of the KBA, way back I saved Jan Myers for last. Talking with Jan, she says she is learn- then, and I credit them a great deal with my own enthusiasm for ing a whole new playbook for life. Doug and Jan were always to- the KBA. I remember hilarious evenings in our hospitality room, gether, and they were one another’s biggest cheerleader. But Doug watching either UK or Louisville play basketball (or better yet and Jan had so many cheerleaders. Jan tells me that so far, there play each other), and the room getting pretty loud. I remember a are 87 contributors to the memorial fund set up at Brandeis Law fair amount of really good bourbon too. But no matter the out- School in Doug’s name. There will be more by the time this prints, come or taunts of the night before, the next morning’s breakfast and hopefully even more afterward. Jan talks about how “Doug’s was as cordial as ever. Doug was the person you could try a case legal career was truly a source of joy and he never tired of working against and then have a beer with. He was a man you could play hard. He loved his career and said that if he ever felt burned out, dice with over the phone. Doug was always a gentleman, a teacher, and a friend.

8 | JANUARY/FEBRUARY 2017 BOOK REVIEW BOOK REVIEW BY: ROBERT G. LAWSON, PROFESSOR EMERITUS

“CRIMESONG” is a very unique and interesting book to say the least, one that is sure to be appealing to a very diverse group of readers. As its title indicates, the book is grounded in a selection of ballads that tell non-fictional stories about a set of murders that have occurred in the south over a period of close to 200 years. The ballads provide only a thumbnail sketch of the stories behind the murders, the author goes miles beyond the ballads in search of full truths about the events that motivated the songwriters, and the end product is a book with 24 fascinating and totally accurate accounts of killings that cast some light on both the best and the worst of human characteristics. The author describes his book as “a collection of research for teachers of history, music, and law,” a statement that accurately describes the content of the book but falls way short of describing the reader groups that are sure to find that content interesting if not fascinating.

Because all of the crime stories in the book involve atrocious murders and the legal system’s response to them (sometimes showing its inherent flaws), I believe that the book should be especially interesting to those of us who have participated in the criminal justice system in one way or another (as judges, lawyers, lawmakers, students, etc.), especially in Kentucky since many of the crime stories described in the book involve crimes committed inside our state. Typical of all of the stories in the book is a Kentucky story that shows what you can expect to find and enjoy from a reading of all 254 pages of “CrimeSong”: “CrimeSong” is a well-researched, well-written, and highly interesting portrayal of human tragedies that made their way into Stella Kenney was an 18 year old Carter County girl who lived ballads that speak of both the best and worst of our human nature with her uncle in an adjoining county for several months help- (love, betrayal, jealously, anger, and violent responses). It chroni- ing him care for his sick wife. In response to her father’s re- cles in meticulous detail the legal system’s response to these trag- quest that she be returned home, the uncle used a horse and edies and in so doing fulfills the need for a clear historical record buggy (in 1915) to transport her back to Carter County. On of important events that now rest in darkness because of the pas- this trip toward home, the girl was struck in the head with a sage of time. It should be a most interesting read for anyone who hatchet and killed, with the uncle claiming that the murder finds pleasure in the reading of murder mysteries. And it should occurred during a robbery that had been committed by two be an even more interesting read for those who have connections unidentified men. After discovering that the victim was preg- to the justice system and interests in observing the law’s response nant at the time of her death and that the uncle had contacted to some of its toughest problems. a doctor seeking abortion medicine, the prosecution charged the uncle with what a local newspaper called “the most hor- ABOUT THE AUTHOR rible crime ever committed in Carter County.” The uncle was ROBERT G. LAWSON, professor of law, has tried six times for the murder (twice in Carter County and a B.S. Degree from Berea College and a J.D. four times in Lawrence County) before finally being con- Degree from the University of Kentucky. He victed and given a sentence of life imprisonment. has been a faculty member of the College of Law since 1966, with two periods of service Professor Underwood left no stone unturned in his search for de- as dean: 1971-73 and 1982-88. He received tails about this murder (and its ballads), perhaps best evidenced by the University of Kentucky Great Teacher Award in 1971 and the fact that he found that one of the defense lawyers in the case again in 2001. In 2001, he also received the Outstanding Pro- was a young man from Louisa, Ky., named Fred Vinson who would fessor Award that is granted each year to one professor from one day join the United States Supreme Court as its Chief Jus- the state’s several public universities by the Kentucky Advocates tice. What he did with respect to this story (searching and study- for Higher Education. On March 11, 2015, the Kentucky Senate ing court records, newspaper stories, books, and anything else he honored Professor Lawson with a resolution in recognition of his could find), he did with respect to all of the stories in the book. retirement from the University of Kentucky College of Law.

BENCH & BAR | 9 Features:DRONE LAW

SHOT DOWN IN FLAMES: KENTUCKY AT THE FOREFRONT OF THE NATIONAL DEBATE OVER DRONES VS. PERSONAL PRIVACY Owning a drone does On July 26, 2015, Kentucky made national and international head- “ lines when William “The Drone Slayer” Meredith took a shotgun ALEXnot MORRITT a pilot, IMPROMPTU make. SCRIBE and blasted an $1,800 hobbyist drone out of the sky because it was ” 1 spying on his sunbathing daughter. Meredith was arrested, jailed, And to answer the number one question everyone seems to ask: and charged with a Class D Felony, punishable by up to a year “NO! It is not OK to shoot a drone out of the sky … even if the 2 in prison and a $10,000 fine. On Oct. 26, 2015, Kentucky again Drone Slayer did it.” made national and international headlines when—after listening to the evidence presented from both the prosecution and the defense— THE SAME OLD SONG WITH A FEW NEW LINES: Bullitt County Judge Rebecca Ward told the media-packed court- CURRENT FAA LEGISLATION CONCERNING room that the drone pilot John Boggs used his remotely piloted HOBBYIST AND COMMERCIAL DRONES drone to invade the privacy of Meredith and his daughter, thus Within the Department of Transportation’s Federal Aviation giving Meredith the right to shoot down (and destroy) the spying Administration (“FAA”), there is no such thing as either drones 3 drone. In dismissing all criminal claims against Meredith, Judge or “drone law.” Instead, what the public recognizes as drones are 4 Ward set what is now known as “the Kentuckian precedent” in known federally as unmanned aircraft vehicles (“UAV”). The sys- the national debate over drone laws regarding hobbyist use, mis- tem of a remote operator and a UAV is known as an unmanned use, privacy, and available self-help. aircraft system (“UAS”). To everyone else, those things with four or more motor rotors, that are cool and fun to operate, and that With over 5,000 hobbyist drones registered in Kentucky since often end-up stuck in trees or on rooftops are known as drones. Dec. 21, 2015,5 the intersection of recreational, high-technology, remote flight and centuries old law is slowly coming into focus for Despite its exclusive and sole responsibility for national air safety, both the public and the lawyers that serve them. Client questions, the FAA has taken a long and circuitous route in its exercise of problems, sought-after solutions, and unique legal challenges are control over drones. Perhaps because it was absolutely blind-sided beginning to appear everywhere. While certainly not all-inclusive, by the explosion of consumer use drone technology, it was not un- this article introduces laws, concepts, issues, and recurring prob- til 2012 that the FAA was charged with analyzing the rise in drone lems that hobbyist drone usage presents. Just knowing the basics use, and devising rules designed to keep our national airspace safe. is often enough to help your clients “fly safe.” Accordingly, the FAA Modernization and Reform Act (“FMRA”) of 2012 required the FAA to address the growing popularity of all drones, both hobbyist and commercial. Bowing to pressure from

10 | JANUARY/FEBRUARY 2017 remote control model aircraft enthusiasts, the FMRA carved-out non-commercial enjoyment of technically advanced, remote con- an exception for “model aircraft” flown for “hobby or recreational trolled flying vehicles. The grey area differentiating hobby use and use.”6 The term “model aircraft,” however, was defined so broadly highly regulated commercial use, however, is now razor thin. that any drone could qualify as a “model aircraft,” depending upon how it was flown.7 With hobbyist drones specifically excluded TWO ROADS DIVERGED IN A WOOD: WHEN HOB- from any FAA oversight, two drones flying the same exact routes, BYIST USE ENDS AND COMMERCIAL USE BEGINS at the same exact time, but by two different people, may have been United States aviation officials expect another 2.7 million com- statutorily viewed as either flying for hobby purposes (and totally mercial drones in the sky by 2020.10 Furthermore, industry ex- unregulated) or flying for commercial purposes (and totally regu- perts predict the use of these commercial drones could generate lated, i.e., registration, exemption, pilot requirements).8 This dis- more than $82 billion for the U.S. economy and create more than tinction without a difference caused much confusion as: (1) hob- 100,000 jobs, in the next 10 years.11 Not surprisingly, for safety byist drones exploded in sales; (2) businesses found more envelope and accountability reasons, the commercial use of drones is highly pushing uses for commercial drones; and (3) the troubling hy- regulated. Commercial drone pilots are required to meet numer- brid of hobbyist/commercial drone usage confounded both users ous FAA certification and flight requirements, and commercial and the FAA. Finally, after years of struggling with the impact of routes are likewise restricted.12 More importantly to drone hobby- drones on both the economy and national airspace safety, on Aug. ists who may inadvertently and unintentionally undertake com- 29, 2016, the FAA published Small UAS Rule (Part 107), which mercial ventures, FAA fines for improper or unlawful commercial resolved many uncertainties in the laws regarding commercial use by an unlicensed hobbyist pilot are both substantial (i.e., they drones, and mostly maintained the “model aircraft” exemption for start at $1,100) and real (i.e., one commercial operator paid a $1.9 unregulated hobbyist drone use.9 million FAA fine). Accordingly, it is very important for the hobbyist pilot to know that fine line distinction. Consequently, per Small UAS Rule (Part 107), hobbyists looking to fly drones have two courses of action; either get a remote pi- With the physical differences between hobbyist drones and com- lot certificate (as all commercial drone pilots must obtain) or at a mercial drones basically non-existent, the difference in use is sole- minimum: ly that of the pilot’s intent. Simply put, the FAA views all drones (1) limit drone flying to hobby or recreational purposes used in any potentially revenue-deriving endeavor as commercial only; drones subject to commercial pilot regulations and fines. Period. The following innocuous uses by hobbyist pilots flying sub- (2) comply a community-based set of safety $1,000 drones were found by the FAA to be commer- guidelines; cial in nature: (3) fly the ASU within visual line-of- (1) real estate agents using drones to photo- sight; graph and video homes for online and print (4) fly during daylight hours; advertising; (5) stay under 40 miles per hour and (2) private investigators using drones to 400 feet; photograph and film accident/injury sites; (6) fly for no longer than 30 minutes, uninterrupted; (3) contractors and sub-contractors us- 50 LB ing drones for building inspection work (7) give way to manned aircraft; via photographs and videos; (8) not fly within five miles of an air- (4) farmers using drones to check their port without prior written notice and fields; approval; (5) wedding caterers and photographers using (9) limit the UAV’s weight to 55 pounds; and drones to record event festivities for the bride and (10) register the UAV with the FAA. groom; (6) hunting guides using drones to find and track game; If all the aforementioned minimum rules are met during the en- tirety of the flight, the pilot may fly their drone as an unregulated (7) a hobby/recreational flight where a crime is captured and hobbyist. Any deviations, however, and the FAA obtains jurisdic- the video footage is later sold to a news station; tion to issue civil fines and penalties, on top of any local criminal (8) posting any photograph or video on Facebook or penalties that may arise. YouTube, if that photograph or video is linked to an advertisement potentially benefitting anyone. For pilots of hobbyist drones, the same old “model aircraft” regulations, with a few new caveats, remain in effect and still allow If improper thoughts are the basis of all sin, then improper pur- individuals the right to enjoy the mostly unregulated, safe, and pose is the basis of all hobbyist-to-commercial drone use crossover. Unless the hobbyist drone is used for anything but recre-

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ational purposes for the entire time of the flight, the pilot is on the monetary fine and referral for criminal prosecution: hook for all civil and criminal penalties associated with improper (1) is further education enough to prevent future infractions; or unlawful commercial use. Such commercial use may seem trivi- al to the hobbyist pilot, but, that view may quickly change when a (2) is this a first-time inadvertent violation that poses a low competitor who has expended the time and resources to obtain a risk, but compliance cannot be achieved through further commercial use certification files an improper use complaint with education; the FAA, and the hobbyist pilot receives an Order of Assessment (3) does this violation pose a medium or high risk of danger and $5,500 fine. So, when choosing a diverging road, it is best to to the national airspace; choose wisely. Contrary to 1970s popular belief, it is not at all true (4) is this an egregious violation by a certified drone pilot that there’s still time to change the road you drone. who should already know better; and IF YOU HAVE 99 PROBLEMS, DON’T LET THE FAA (5) is this a repeat violation from an already reeducated and BE ONE: RESPONDING TO FAA ENFORCEMENT/ certified drone pilot?16 SANCTION ACTIONS With less upfront investment required, and increased regulation Depending upon how the FAA views the specific drone infrac- tion, the action taken ranges from nothing, to a slight reprimand, giving way to more freedom, drone hobbyists have come out of the woodwork to experiment with this new technology—but not with- to a substantial fine and revocation of pilot’s certificates. out their fair share of mishaps and crossover into the world of high- FAA DRONE ENFORCEMENT/SANCTION ly regulated commercial drone use. It is these two areas that com- PROCEDURES prise the focus of FAA enforcement actions against drone pilots. If a drone enforcement sanction is deemed necessary, the FAA has SAFETY IS PRIORITY ONE FOR THE FAA many hammers in its regulatory toolbox. Generally, these enforce- Safety is the FAA’s top mission.13 This includes overseeing the safe ment/sanction actions fall into five categories: and responsible use of the estimated 4 million drones presently in (1) Warning Notices, i.e., “Hey, how about you note what the hands of hobbyists and businesses. As such, 49 USC § 40103 you did wrong and not do this again. OK?” “Sovereignty and Use of Airspace,” FAA v. Raphael Pirker, NTSB (2) Letters of Correction, i.e., “Hey, what were you thinking ORDER No. EA-5739, 10 (November 18, 2014), FMRA §333 when you did this? That was really dumb. How about you and §336, and Small UAS Rule (Part 107) act in conjunction to not do this again or we will fine you. Thanks.” give the FFA authority over all manned and unmanned aircraft, including hobbyist drones flying under the mostly unregulated (3) Order of Assessment: Unlawful Use, i.e., “Hey, the FAA “model aircraft” exception. The FAA may assess civil penalties of rules are pretty clear about hobbyist using their drones up to $10,000 per violation. While the FAA has no authority to for commercial purposes. Here is a de minimis fine. How criminally prosecute drone pilots, the FAA has recently started act- about you not do this again without obtaining your cer- ively seeking local law enforcement assistance in pursuing both tification, or we will have to take harsher actions against original and ancillary actions against drone pilots who are in al- you. Thanks.” leged violation of federal law, state law, or community based safety 14 (4) Order of Assessment: Personal Safety, i.e., “Hey moron, guidelines. Accordingly, whenever there is an FAA investigation, it doesn’t really matter what you were thinking when there may also be an ancillary or forthcoming criminal investiga- you did this, because this is really stupid AND someone tion, as well. could have gotten hurt. Do not do this again. Ever. Here CONSIDERATIONS FOR FAA ENFORCEMENT OF is your fine, too. Jeez.” DRONE USE VIOLATIONS (5) Certificate Actions, i.e., “This is beyond explanation The FAA has five enforcement teams spread across nine regions. or comprehension. Not only did you violate numerous Kentucky is in the Southern Region. In reviewing drone use for FAA rules and regulations, you also put lives in danger. possible enforcement action, the FAA considers the following As a certified drone pilot you know better. Your actions factors: are unconscionable. Not only are we issuing a hefty fine, we are also suspending your certificate. We know your (1) whether the violation is a first time and inadvertent lawyer will be calling us, so here us our number.” violation; (2) whether the violation involves repeated or intentional No matter what type of letter is sent to the drone pilot, all letters violations; and have teeth. But, history shows the FAA does not really want to ex- pend limited resources to get into a protracted battle over drone use. (3) whether the safety risk resulting from the operation is From the FAA’s perspective, money is better spent trying to avert low, medium, or high.15 an airline disaster than it is enforcing a sanction against a wedding If the FAA determines the drone pilot’s action necessitates a sanc- photographer. Accordingly, the best course of action is almost al- tion, the following factors provide general guidance as to both a ways to work with the FAA to remedy the “misunderstanding.”

12 | JANUARY/FEBRUARY 2017 HOW TO RESPOND TO FAA DRONE operation is not necessary, as the FAA’s goals of safety and en- ENFORCEMENT/SANCTION ACTIONS forcement can be achieved via a less onerous sanction. If you can- Properly responding to an FAA enforcement/sanction letter (even not resolve the enforcement/sanction via a lesser level of letter, you if it is to acknowledge a simple Warning Notice) is a fourfold should be able to negotiate down any fine. course of action that seeks to limit any present, ancillary, or future action; while at the same time guarding against any possible ad- Of the 23 monetary fine seeking FAA drone pilot enforcement/ missions against interest that may be used in other proceedings. sanction actions undertaken between Sept. 13, 2012 and Dec. Accordingly, any FAA enforcement/sanction actions should be 31, 2015, all seven drone pilots who retained counsel had their 17 responded to with: identification, cooperation, acknowledgment, fines greatly reduced or extinguished. And again, always be nice. and a plan of action. FAA enforcement officers are just trying to do their job of keeping our nation’s airspace safe. Aside from violations that could First, identify yourself as counsel for the drone pilot. Let the FAA have been catastrophic (i.e., repeated unlawful drone flights know you look forward to discussing the matter and resolving any endangering the lives of thousands of air passengers or ground concerns or issues. Do not make any statement wherein the phrase spectators), the FAA is not trying to drive in a tack with a sledge- “not a big deal” or the word “toy” are ever used. To the FAA, na- hammer. But, if you are not nice and give the FAA a reason to get tional airspace safety is a big deal and drones are not toys. the sledgehammer out, they will.

Second, profess your cooperation in addressing the subject mat- Recognizing the role of the FAA and being nice goes a long way. ter of the letter, and specifically recognize your (and your client’s) The FAA just wants to maintain airspace safety. In its mission of shared belief in the safety of the nation’s airspace. In short, recog- providing such safety, the FAA has even gone as far as creating a nize what the FAA does and offer your cooperation in working free app for drone pilots to use to ensure they are in FAA com- 18 towards achieving the FAA’s top mission: safety. Be nice, present pliance and flying lawfully. In dealing with the FAA, recognize your cooperation in a non-confrontational manner, and remember the FAA’s guiding mission, take an objective look at the drone again to be nice. pilot’s conduct, and meet in the middle (or perhaps even a little closer to your end). If litigation and a protracted fight is a must Third, acknowledge the content of the letter and the allegations to protect your client’s right to fly a drone with a machine gun or contained therein. But, recognize the big caveat that this acknowledgment of the al- leged violations, however, should be tem- pered. Obviously, saying too much can be used against the targeted drone pilot. But, in FAA enforcement/sanction proceedings, saying nothing at all may be used as an admission. So, the best course of action is a carefully worded response that acknowledges the FAA’s allegations and concerns, but says little—if anything—about the drone pilot’s actual conduct. Quintairos, Prieto, Wood & Boyer, P.A. Fourth, respond with a plan of action. Your plan of action response needs to be sooner Attorneys at Law rather than later, humble, and supported by both facts and your already acknowledged shared belief in safety. Your ultimate goal is to diminish/reduce any enforcement/sanction. If there is a Warning Notice, you would ATTORNEYS for its Louisville and prefer that not be made part of any permanent - record for later use against the pilot. If there is a Letter of Correction you want to con- ence in civil trial and/or insurance vince the FAA that a Warning Notice will defense litigation. Portable book of suffice. If there is an Order of Assessment, you need to show that a fine is not necessary business is a plus. to accomplish the shared goals of national airspace safety, and that a Letter of Correc- tion or Warning Notice will suffice. And if E-mail resume to [email protected] there is a Certificate Action, you hope to show that pulling the pilot’s certificate of

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flamethrower attached, be forewarned that sledgehammer is com- Second, be it increased FAA/local law enforcement oversight or ing down, and probably on your client. Your client might have 99 addressing privacy issues, increased litigation involving drone use problems, but don’t let the FAA be one. is a certainty. And third, it bears repeating: “NO! It is not OK to shoot a drone out of the sky … even if the Drone Slayer did it.” ANTICIPATED AREAS OF FUTURE FAA DRONE ENFORCEMENT ABOUT THE AUTHORS To date, FAA drone enforcement has been limited to what may be J. ALLAN COBB is lawyer, teacher, friend, confidant, drone “hob- accurately called “incredibly stupid piloting decisions” that do not byist,” and Pulitzer Prize nominated photographer, who lives in require a lot of investigation to confirm a violation necessitating a Louisville. At Cobb Law, PLLC, he focuses his law practice on monetary fine. To wit: federal and state legal malpractice defense, personal injury, busi- (1) flying a machinegun shooting drone, and shooting ness litigation, technology law, and identity theft recovery. He has stuff (Youtube); a B.S. in Political Science and Juris Doctorate from the University of Louisville. He can be reached at [email protected] (2) flying a flamethrower drone, and flame throwing or [email protected]. (Youtube); ANDREA R. HUNT (3) crashing a drone onto the White House lawn (national is an attorney in Louisville, who, at Cobb Law, news and call from the Secret Service); PLLC, focuses her law practice on legal malpractice defense, personal injury, and business litigation. Hunt has a B.S. in political (4) flying over or crashing into sports stadiums (national science from University of Louisville and a Juris Doctor from news); University of Michigan Law School. Hunt can be reached at an- (5) flying in commercial aircraft traffic (air traffic control [email protected] and [email protected]. and pilot complaints); ENDNOTES (6) flying in restricted airspace (air traffic control, pilot, 1. The Washington Times, Kentucky Man Arrested After Shooting Down and citizen complaints); $1,800.00 Drone Hovering Over Sunbathing Daughter, July 30, 2015. http:// www.washingtontimes.com/news/2015/jul/30/william-merideth-arrest- (7) unlawful commercial use (competitor complaints, ed-after-shooting-down-1800/ Facebook, Youtube, and online advertisements); and 2. Commonwealth vs. William H. Meredith, Bullitt County District Court, 15-F-00473. (8) crashing into and injuring people (national news when 3. http://blogs.wsj.com/law/2015/10/28/judge-dismisses-case-against-drone- 19 it happens to rock stars). slayer-who-shot-down-drone-from-back-porch/ 4. The Kentuckian is a 1955 Western produced and starring Burt Lancaster as The FAA does not seem to proactively seek out drone violations; Big Eli Wakefield, a sharp shooting Kentuckian. 5. https://www.faa.gov/news/updates/?newsId=85548 it just acts upon conduct and complaints that go against its stated 6. FMRA §336(a). mission of maintaining the safety of national airspace. As the pub- 7. FMRA §336(c)(defining “model aircraft” as “an unmanned aircraft that lic becomes more aware of drone issues and drone law, however, is (1) capable of sustained flight in the atmosphere; (2) from within visual it is just a matter of time until the FAA begins reacting to and line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”). enforcing/sanctioning lesser violations such as damage to proper- 8. FAA, Unmanned Aircraft Operations in the National Airspace System, 72 Fed. ty over $500, any physical injury, unlawful flying within five miles Reg. 6689 (Feb. 13, 2007); and see FMRA §333, Special Rules for Certain of an airport, and general non-compliance of community-based Unmanned Aircraft Systems. safety guidelines. Enforcement/sanctioning of unlawful and un- 9. https://www.faa.gov/uas/media/Part_107_Summary.pdf 10. The Insurance Journal, The Future of Commercial Drone Use, March 29, 2016. authorized drone use is a rapidly evolving area of the law. Based http://www.insurancejournal.com/news/national/2016/03/29/403149.htm upon the FAA’s obligation and mission to protect the national air- 11. FAA, Press Release—DOT and FAA Finalize Rules for Small Unmanned space, it is clear the FAA will continue to regulate and initiate Aircraft Systems, June 21, 2016. https://www.faa.gov/news/press_releases/ enforcement actions against drone pilots who fly in violation of news_story.cfm?newsId=20515 12. Small UAS Rule (Part 107). FAA law. While the FAA’s present enforcement actions are signifi- 13. FAA, Safety: The Foundation of Everything We Do, July 2, 2015. https://www. cantly limited because of its inability to monitor all drone activity— faa.gov/about/safety_efficiency/ both safe and unsafe—the FAA has actively begun partnering with 14. FAA, Law Enforcement Guidance for Suspected Unauthorized UAS Operations, local law enforcement agencies to arrest and prosecute drone pilots August 11, 2016. https://www.faa.gov/uas/resources/law_enforcement/media/FAA_UAS-PO_LEA_Guidance.pdf who cause property damage and personal injuries. Accordingly, in 15. FAA, Settlement Guidance, FAA Order 2150.3B, et seq., January 20, 2015. the coming months and years, we can expect to see significant lit- https://www.faa.gov/documentLibrary/media/Order/2150_3B_Chg_8_ igation concerning civil and criminal drone enforcement/sanction Only.pdf actions. 16. Id. 17. https://www.scribd.com/doc/314503155/FAA-Drone-Fines 18. B4UFLY. https://www.faa.gov/uas/where_to_fly/b4ufly/ CONCLUSION 19. Id. Federal and state laws governing the use of drones are in flux, but a few things are already clear: First, hobbyist drone operators who neither carefully comply with FAA regulations for hobbyists nor get a remote pilot certificate must be prepared to pay the price.

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Features:DRONE LAW

INTRODUCTION: THE TARGETED KILLING OF Drones are now lethal. A drone pilot may maneuver a drone over ANWAR AL-AWLAKI, AN AMERICAN CITIZEN Afghanistan from an office in the U.S., firing its missiles with He never knew what hit him. There was no sound, no warning, great precision against targets miles away from the drone itself. no precursor of danger. One minute Anwar al-Awlaki was in his vehicle in Yemen and the next minute his vehicle was a burning To be sure, most of the UAVs continue to perform non-lethal ISR wreck. An American Predator unmanned aerial vehicle (UAV) tasks. A company commander in Afghanistan can open a suitcase —a drone—had fired a missile which had taken his life, along and launch a small Raven UAV by throwing it into the air. It can with the lives of three others who had the ill fortune of being with fly for seven miles and its color video camera tells the captain what 4 him.1 is behind the next building or hill. On a more strategic scale, UAVs can fly above other nations at 65,000 feet for two days. By most accounts, including his own, al-Awlaki was a key cog in The Sentinel is a “stealth” aircraft designed for covert information the terror war. An active recruiter for Al Qaeda, fluent in Ameri- gathering, with cameras, thermal sensors, radar and an array of 5 can English and educated in American universities, he was a me- other information gathering tools. dia relations specialist and was instrumental in attracting, moti- vating, and “radicalizing” Western and middle-eastern Muslims For our purposes, however, the most interesting drones are the to engage in attacks against Western targets and other Muslims. armed drones such as the Predator and Reaper, which combine Yet al-Awlaki was an American citizen, and Yemen was not then a the cameras and data gathering devices of ISR drones with lethal combat area as were Afghanistan and Iraq. Is the use of an armed weapons. The Predator is 27 feet long with a top speed of 80 mph 6 drone permissible under U.S. and international law? What if the and a range of 770 miles. It carries two air to ground laser guided strike is outside of combat areas? What if the strike is against Hellfire missiles which travel faster than the speed of sound and 7 an American who has never been convicted of anything? Who have their own range of five miles. The Reaper improves on the approves such planned, deliberate, targeted killings—what some Predator in every respect and carries twice the missiles as well 8 label “extra-judicial killings”2—of people who have never actually as 500 lb. bombs at an altitude of 50,000 ft. “[F]lying a UAV taken up arms against the U.S.? What due process, if any, was via a camera in its nose has been described as being like piloting 9 there before the strike was carried out, and what laws govern the an aircraft while looking through a straw.” Both President Bush use of this weapon? These are just some of the legal questions and President Obama have authorized the lethal use of drones, which are implicated in the use of a drone to kill al-Awlaki and although there were more drone strikes during President Obama’s 10 others. This article will explore these questions and recent trends first year than in all eight of the Bush Administration involving lethal drones. THE LEGAL CONTEXT OF THE USE OF DRONES HISTORY AND CAPABILITY OF THE An examination of the lethal use of drones for national security MILITARY USE OF DRONES purposes raises issues never encountered when utilizing drones in Anyone with a capability to know where his adversary is, what he the purely ISR function. Primary concerns are the lawfulness of is doing, and how well he is doing it has an advantage over that using lethal drones, their lawfulness in targeted killings, and the adversary. That is the essence of what the military calls an “ISR” permissibility of their use outside combat areas and against Amer- 11 capability, for intelligence, surveillance, and reconnais- icans. sance. From the observation balloons used in the Civil War to the 8000 observation aircraft used in WWI, Analysis of lethal drone lawfulness generally begins commanders seek the information airborne ISR can with one’s perspective on the current conflict with ter- provide.3 What has changed is that technology has rorism. Generally speaking, there are two paradigms developed UAVs with extraordinary capabilities, at used. Americans tend to characterize the struggle reasonable cost, at a time when the U.S. is extremely as a war, an armed conflict against terrorists. Under casualty averse, and these UAVs are now being em- this view, one may kill one’s enemies wherever they ployed beyond their original ISR tasks by being armed. are so long as the means used are otherwise lawful. In

16 | JANUARY/FEBRUARY 2017 contrast, many Europeans and international law scholars charac- been made that an intended target was, indeed, a lawful target of terize it as a large scale law enforcement action. Accordingly, un- a drone strike. But what were those “robust procedures”? Who der this view there are heightened safeguards for due process and made it on the “kill list” and who decided whom to kill, partic- the means used are severely constrained. Soldiers may simply kill ularly when the one to be killed was an American? Koh did not their enemies, but law enforcement officers try to gather evidence, reveal these details. capture their quarry, and hold them for trial. As a result of a Freedom of Information Act lawsuit, in August Human Rights Law (“HRL”) is international law that constrains 2016 the Obama Administration released its Presidential Policy governments in their pursuit of terrorists and other criminals. It Guidance (PPG) on the use of force in counterterrorism opera- requires judicial process before anyone is killed unless the dead- tions outside areas of active hostilities such as Afghanistan and ly threat is imminent and the use of deadly force is unavoidable. Iraq.19 The policy itself is dated May, 2013. According to the pol- When governments kill terrorists in violation of HRL, they have icy, a terrorist can be nominated to the capture or kill list by var- engaged in “extrajudicial killing.” For example, Article 9 of the ious agencies, such as the CIA, Defense Department, or Depart- U.N. Basic Principles on the Use of Force and Firearms by Law ment of Homeland Security. Nominees usually become “targets” Enforcement Officials provides that “intentional lethal use of by consensus of the agencies involved, but only the President can firearms may only be made when strictly unavoidable in order to approve “lethal action” against a U.S. citizen. There is a preference protect life.” 12 Thus, the drone strike which killed al-Harethi, an for capture rather than killing, and the burden of proof to justify al Qaeda leader in Yemen, “constituted a clear case of extrajudicial “lethal direct action” is very high. For example, there must be “near killing” according to a 2003 report by the U.N. Special Rapporteur certainty” that a lawful target is present and that non-combatants to the Commission on Human Rights.13 will not be injured.20 In addition, every nomination receives a legal review by the nominating agency, who will consult with the The U.S. position is that the use of drone strikes is perfectly lawful Department of Justice, which also separately reviews more serious under international and national law.14 In a 2010 speech before an cases, such as the targeting of Americans.21 International Law Scholar’s Conference, Harold Koh, legal advisor to the State Department, explained and defended the U.S. Of course, this is mere policy, not legislation, and can be changed position.15 First, the U.S. is engaged in an armed conflict against by the next President on the first day of a new administration.22 an aggressive foe who is frequently found in weak or dysfunctional Nonetheless, its release sets a much better standard for transpar- states where governments, if not actively hostile, cannot or will ency, even if it was only disclosed by litigation, and the PPG es- not restrain the activities of those who kill Americans. A “law tablishes a benchmark for successor policies. enforcement model” does not work in such a context. It is unre- alistic to expect American forces to arrest or capture terrorists in CLOAK AND DAGGER LAW? these countries. Tough questions remain. Even if one generally accepts the “law of armed conflict” paradigm for analyzing lethal force and drones, Second, drones are simply another weapon, and their use is judged as does the author, this approach does not answer every question. by the international standards applicable to the uses of all weap- For example, how do the targeted killings which drone technology ons. Does their use discriminate between combatants and non- renders possible and policy makes permissible relate to the older combatants? Is their use and the damage they inflict proportional, U.S. policy prohibition on assassinations? Further, do not the legal or do they cause (collateral) damage beyond what is necessary? context and the legal status of some drone operators remain un- Does their use cause unnecessary suffering? Drones, said Koh, certain because some drones are being operated by civilian person- actually minimize unintended damage and casualties because of nel?23 After all, if the traditional distinction between combatants their great precision. and civilian noncombatants has been or becomes blurred, what are the controlling legal authorities and what is their status under the Third, in an armed conflict, the enemy can be engaged anytime, broader laws of armed conflict? anyplace with an otherwise lawful weapon. The U.S., Koh insisted, had and would continue to fight the war consistent with the jus In the 1970s the Church Senate Committee found evidence that in bello—the law of armed conflict—which the U.S. and other the CIA had engaged in assassinations. Presidents Ford, Carter, nations recognize as normative. and Reagan promulgated what became an Executive Order which prohibits assassinations, EO 12333.24 The pertinent sections pro- With respect to national law, the President and military have all vide that: the authority they need to fight terrorists in the Authorizations 16 17 2.11 Prohibition on Assassination. No person employed for the Use of Military Force in Afghanistan (2001) and Iraq by or acting on behalf of the United States Government (2002). Both of these authorized “any necessary and appropriate shall engage in, or conspire to engage in, assassination. use of force” to defend the U.S., and implicitly include the use of drones as well as bombs and bullets.18 2.12 Indirect Participation. No agency of the Intelligence Community shall participate in or request any person to Finally, said Koh, the U.S. had “robust procedures” in effect to undertake activities forbidden by this Order. limit the use of lethal drones and ensure a determination had

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Simple, but undefined. Was the targeted killing of, e.g., al-Awlaki expect to be attacked all the time, such an attack would not be by drone strike an impermissible assassination? As noted above, shocking. On the other hand, most of us would be shocked if a Harold Koh thought that “the use of lawful weapons systems— CIA employee was gunned down in his driveway some morning consistent with the applicable laws of war—for precision targeting while on his way to work in suburban Washington, D.C., armed of specific high-level belligerent leaders when acting in self-de- only with a latte. fense or during an armed conflict is not unlawful, and hence does not constitute assassination.” One might wonder if he should have This problem is not new, but is growing with the use of drones first asked whether the attack was an assassination, and then de- and the convergence or symbiosis of so many federal agencies. termined its lawfulness. Geographical lines—“areas of armed conflict”—are being blurred. Legal demarcations—“chain of command,” “combatant,” “military Nonetheless, earlier analysis, rendered before the age of lethal operational control”—are becoming porous. Who is in charge? drones, agrees with this approach. W. Hays Parks, a retired Marine Who is legally responsible and accountable? By what standards?29 Corps Judge Advocate General ( JAG) and longtime professor at the Army’s JAG School, gave some helpful guidance in his 1989 KILLER DRONES IN THE U.S.? Memorandum “Executive Order 12333 and Assassination.”25 Anyone who has seen the lethal use of law enforcement robots in Starting with the general observation that an assassination is an the movie “Robocop” is wary of such things. And you don’t have to act of murder for political purposes, Parks refined the concept by pass the bar to understand Murphy’s Law.30 Drones have proved analyzing the intended purpose of the act by the state sponsor; their surveillance utility many times in a law enforcement role, whether the act was covert—i.e., whether the state sponsor ac- from monitoring crowds while the Pope is visiting, to identifying knowledged or concealed the act; and whether the victim was a rioters in cities. The next step is to arm drones with nonlethal public figure or national leader and if the act was accomplished weapons. The step beyond is to arm drones with lethal weapons in a surprise attack.26 He noted that in armed combat the military but retain control by operators. The last step would cut the umbil- may lawfully kill the enemy, which includes both combatants and ical cord between operator and robot or drone and bring us Rob- unprivileged belligerents, including civilians who take part in hos- ocop, resulting in LAWS—lethal autonomous weapons systems. tilities, and a prohibition on assassination does not preclude violent acts which surprise the target. Most legislative activity is occurring at the state level.31 Last year North Dakota took the next step and passed a landmark law pro- Still, even if one accepts this reasoning, is it not military person- viding for the arming of drones with non-lethal weapons, such as nel only who are privileged to kill in armed conflict? How can tear gas, bean bags, or tasers.32 The step beyond—lethal drones— CIA agents or, worse, its contract employees, use drones to kill? was taken this summer, but was the result of improvisation, not The problem is illustrated by a quote from Leon Panetta in 2011, legislation. On July 7, 2016, Dallas police equipped a robot with shortly after the killing of Osama bin Laden, when he was Di- a small explosive device to kill an armed man who had shot and rector of the CIA. Being interviewed on the PBS Newshour, Di- killed five police officers. Both the robot and the explosives were rector Panetta said that the attack had been a “title 50 operation,” remotely controlled by police.33 and that he had exercised overall “command.” Title 50 of the U.S. Code governs CIA operations, while Title 10 governs Defense To date, no legislature has authorized the arming of drones with Department activities. The attack was carried out by Navy Seals lethal weapons. But that does not mean they won’t exist. Drones from the Joint Special Operations Command of the Defense De- are cheap and easily available.34 They can be equipped with cameras partment. But Director Panetta is in “command?”27 Similarly, the and with weapons. In fact, they already have been. In Connecticut New York Times article on the death of al Awlaki reported that: earlier this year, a teenager equipped a drone with a flamethrower and a handgun. It “worked” and, like many of our clients, he felt “After several days of surveillance of Mr. Awlaki, armed 35 compelled to post the results on social media for all to see. drones operated by the Central Intelligence Agency took off from a new, secret American base in the Arabian Penin- CONCLUSION sula, crossed into northern Yemen, and unleashed a barrage Drones have existed for decades, but “drone law” is in its infancy in of Hellfire missiles… The drone strike was the firstCIA the national security arena. Insofar as it does exist, it is a subset of strike in Yemen since 2002—there have been others since international and national law pertaining to lawful weapons and 28 then by the military’s Special Operations Forces…” tactics. Their employment is at the forefront of the law because (emphasis added) of UAVs’ great range and precision, and because they permit the This “command and control” dilemma represents one of the most U.S. to engage the enemy without subjecting American personnel serious challenges to the analysis of the lawful use of force in armed to much danger. To date, no American military personnel have been killed by enemy drones, but coalition partners have suffered conflict in general, and the use of drones in particular. There has 36 been a serious erosion in the legal lines between lawful combat- casualties. Attitudes may change once Americans are on the re- ants and others who are nonuniformed “civilians” most of the ceiving end of drone attacks, but for the short-term, at least, le- time. Military personnel understand that they are targets all of the thally armed drones will continue to be an essential but largely time. They are engaged in armed conflict and, while they do not unregulated tool in the conflict against terrorists.

18 | JANUARY/FEBRUARY 2017 ABOUT THE AUTHOR J. PETER HILL holes.” Public Committee Against Torture in Israel is an attorney, mediator, and teacher in Hardin and v. Israel, 46 I.L.M 375 (2006). If not a black Meade Counties, Kentucky. His degrees include a B.A. from Cov- hole. U.S. law seems rather opaque at times. enant College, an M.A. in history from Duquesne University, an 24. Executive Order 12333, United States In- M.A. in political science from the University of Louisville, and a telligence Activities, appearing at 46 Federal Register 59941, Dec. 4, 1981, and codified at 3 J.D. from the University of Pittsburgh. He is graduate of the U.S. CFR, 1981 Comp., p. 200. Army’s Command and General Staff College, and the U.S. Army 25. W. Hays Parks, “Memorandum of Law: Judge Advocate General’s Corps Advanced Course. He is an adjunct professor at the Executive Order 12333 and Assassination”, Brandeis School of Law, University of Louisville, where he teaches National Security Department of the Army Pamphlet 27-50-204, Reprinted in the Army Lawyer, December 1989. Law. He is a retired JAG lieutenant colonel, U.S. Army Reserve, and also retired as a civil Mr. Parks was later the Senior Associate Deputy service attorney for the Army. He is a member of the Kentucky and Pennsylvania bars. General Counsel for International Affairs, Defense Department. ENDNOTES tive’s decision and policy-making processes. 26. The analysis does not change regardless of 1. Mark Mazzetti, Eric Schmitt, and Robert F. 16. Public Law 107-40, introduced Sep. 14, 2001, whether the actor is a state or non-state actor, Worth. (2011, October 1). CIA Strike Kills signed Sep. 18, 2001, provided “That the Presi- such as a member of a non-state or transnation- U.S.-Born Militant in a Car in Yemen. New dent is authorized to use all necessary and appro- al terrorist organization. York Times. Retrieved on Oct. 4, 2016 from priate force against those nations, organizations, 27. The story is related in Chesney, Robert,Mili - http://search.proquest.com.echo.louisville.edu/ or persons he determines planned, authorized, tary-Intelligence Convergence and the Law of the nytimes/docview/895204332/BE80A4F29E48 committed, or aided the terrorist attacks that Title 10/Title 50 Debate, 5 Journal of National 42C7PQ/68?accountid=14665 occurred on Sept. 11, 2001, or harbored such Security Law and Policy 539 (2012). 2. The phrase was used by a U.N. Special Rappor- organizations or persons, in order to prevent any 28. Mazzetti, Mark et al, CIA Strike, New York teur on Extrajudicial, Summary or Arbitrary future acts of international terrorism against the Times. Oct 1, 2011, pp 1, 8. Executions and continues to be used by critics. United States by such nations, organizations or 29. This is the subject of the Chesney article, supra. Quoted in Dycus, Stephen, “National Security persons.” (emphasis added.) I note that there is, indeed, a CIA perspective Law”, 5th ed., at 376. Wolters Kluwer, New 17. Public Law 107-243, introduced Oct. 2, 2002 on this. For example, John Rizzo, formerly York. (2011) and signed Oct. 16, 2002. Section 3 provides Chief Counsel of the CIA, gave remarks to 3. See Blom, John David, “Unmanned Aerial that: The President is authorized to use the the ABA Standing Committee on Law and Systems: A Historical Perspective”, Chapter 1. Armed Forces of the United States as he deter- National Security, on May 5, 2010. His podcast Combat Studies Institute Press, Fort Leaven- mines to be necessary and appropriate in order to-- can be heard at http://www.abanet.org/natsecu- worth, KS. (2010) (1) defend the national security of the United rity/multimedia/WS_30274.mp3 4. Blom, “Unmanned Aerial Systems” at 112. States against the continuing threat posed by 30. Indeed, there have already been occasions when 5. Dougherty, Martin J., “Drones” at 119. Metro Iraq; and Murphy’s Law has affected drones. For exam- Books, New York. (2015) (2) enforce all relevant United Nations Security ple, in 2009 the signals controlling an armed 6. Information derived from an unclassified Air Council resolutions regarding Iraq. (emphasis Reaper over Afghanistan were lost. This means Force fact sheet accessed on Nov. 21, 2016 at added.) control of the drone was lost, and an armed http://www.af.mil/AboutUs/FactSheets/Dis- 18. Id. aircraft was flying without human control. A play/tabid/224/Article/104469/mq-1b-preda- 19. Procedures for Approving Direct Action Against (manned) fighter was dispatched to shoot it tor.aspx. Terrorist Targets Located Outside the United States down. Dougherty, Drones, p. 86. 7. olive-drab.com/idphoto/id_photos_aircraft_ and Areas of Active Hostilities, found at https:// 31. The National Conference of State Legislatures weapons_air-to-ground_agm114.php www.lawfareblog.com/declassified-proce- reports dozens of drone-related proposed 8. Dougherty, “Drones” chapter on “Combat dures-approving-direct-action-against-terrorists legislative initiatives at http://www.ncsl.org/ Drones” pp. 76-105. Unarmed variations are retrieved on October 3, 2016. This Presiden- research/transportation/current-unmanned-air- used by the Coast Guard to track smugglers tial Policy Guidance (PPG) was a top secret craft-state-law-landscape.aspx. and immigrants, and by the Border Patrol to document and was significantly redacted for 32. The passage and a conversation with its sponsor monitor remote border areas. release. A shorter “fact sheet” can be found at were reported by Laura Wagner of NPR in 9. Dougherty, “Drones” at 87. https://www.whitehouse.gov/sites/default/files/ North Dakota Legalizes Armed Drones, on August 10. Dycus, Stephen, “National Security Law”, 6th uploads/2013.05.23_fact_sheet_on_ppg.pdf 27, 2015, available at http://www.npr.org/ ed., at 419. Wolters Kluwer, New York. (2016) The PPG provides a substantial amount of “due sections/thetwo-way/2015/08/27/435301160/ 11. For a detailed examination of the legal, moral, process” for those “High Value Targets” nomi- north-dakota-legalizes-armed-police-drones. and political issues regarding drone strikes, nated for the capture or kill list, and provides a 33. Peter W. Singer, Police Used a Robot to Kill, particularly outside of combat areas, see Plaw, policy preference for capture. Individual nom- CNN report of July 10, 2016 available at http:// Avery et. al., “The Drone Debate, A Primer on inations for “lethal action” shall be presented to www.cnn.com/2016/07/09/opinions/dallas-ro- the U.S. Use of Unmanned Aircraft Outside the President when the nominee is a U.S. citizen bot-questions-singer/. Conventional Battlefields”, Rowman and Little- or when there is no consensus among the high 34. The web has sites entirely devoted to “building field, New York. (2016) ranking government officials (the “Principals”) your own drone” and there are even books about 12. Retrieved from http://www2.ohchr.org/eng/ as to whether a nominee should be targeted. the subject. law/pdf on Oct. 3, 2016. See, e.g., paragraph 3.E. 35. Lawrence Crook, Father and Son Fight FAA 13. Quoted in Dycus, “National Security Law”, 6th 20. Id. Over Weaponized Drone, CNN report of ed. at 423-4. 21. Id. July 6, 2016 available at http://www.cnn. 14. And, of course, where they conflict, national 22. To date Congress has shown little enthusiasm com/2016/07/06/politics/drone-weapons-faa/. U.S. law controls. Thus, e.g., a U.S. statute for legislating these or other procedures and 36. ISIS drones have been used for ISR purposes which limits or contradicts a treaty obligation standards. And legislation in this area may be and recently have been “weaponized” per recent the U.S. has signed is given effect rather than like the sentiment attributed to Chancellor Bis- news accounts. See, e.g., Michael S. Schmidt the treaty obligation. Committee of U.S. Citizens marck that “Laws are like sausages. It is better and Eric Schmitt’s article in the October 11, Living in Nicaragua v. Reagan, 859 F. 2d 929, not to observe how they are made.” 2016 N.Y. Times, “Pentagon Confronts a New (D.C. Cir., 1988). 23. The Israeli Supreme Court, reviewing Israel’s Threat from ISIS: Exploding Drones” http:// 15. Koh quoted in Dycus, “National Security Law”, policy of preventative strikes to kill terrorists, www.nytimes.com/2016/10/12/world/middlee 5th ed. at 397. In the 6th edition many other famously said that “There is always law which ast/iraq-drones-isis.html?_r=0 accessed on sources are cited, mostly internal to the Execu- the state must comply with. There are no black Nov. 21, 2016.

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rones are one of the latest tech trends to catch fire. Sales to tions.6 This and similar stories have reverberated around the in- hobbyists alone are expected to reach 1.9 million this year ternet and caused people to worry about privacy invasions, partic- Dand 4.3 million by 2020.1 The drone, any unmanned air- ularly surreptitious invasions. craft, is capturing the popular imagination. Part of the consternation comes from the fact that the law on Drones are being used for private and commercial purposes. In the subject is not yet developed. There are federal laws in place the commercial setting they can be used for aerial inspection of for drone safety but not for the protection of privacy. In April crops, or damaged rooftops and other instances when an inexpen- of 2013, the Congressional Research Service published a paper sive eye-in-the-sky can be helpful. Private drone users can have entitled Integration of Drones into Domestic Airspace: Selected Le- the drone film and follow them while engaging in sporting activ- gal Issues. It stated that current federal law fails to answer several ities from skateboarding to football. This type of use is also being questions, including whether flying over private property is a tres- tested by the NFL.2 pass or a nuisance.7 Several states have begun to enact laws on the issue, but in a limited manner and with questionable validity. THE PROBLEM In a recent episode of “Modern Family,” the Pritchetts deal with CURRENT LAWS the nuisance of a drone flying around their pool watching Gloria Drones impact two separate areas of public concern, safety and sunbathe. In another episode, Phil Dunphey uses a drone to spy privacy. Privacy concerns are particularly felt in the context of a on the kids. Scenes like this are playing out in real life, and soon drone flying over or hovering over private property. What right nosy neighbors, mischievous kids and paparazzi will all be using does the property owner have to the space above his land? In drones. Many already are. Vanity Fair magazine reports that wed- 1946, the U.S. Supreme Court, in Causby v. U.S., set out the sim- ding planners for celebrities have been dealing with drones for plest limit on the property owner’s rights when it stated the rights some time.3 Privacy and the desire to be free from drone intrusion above the land do not extend to the heavens, noting that airline is a concern for ordinary people as well, and a natural response travel would be impossible. But the court did say, “The landowner may be to repel the perceived intrusion with force. One such inci- owns at least as much of the space above the ground as he can dent has already made the news in Kentucky. occupy or use in connection with the land.”8 Beyond this you have to piece together many different parts of the law to get some idea William Meredith shot down a drone with a shotgun. He claim- of what is allowed and what is protected. ed it was flying over his property taking still images of his daughter.4 John Boggs, the drone owner, reported the incident Though the issue of privacy in the operation of drones is a difficult and Meredith was charged with criminal mischief and wanton question, the federal government has enacted rules out of concern endangerment. The district court dismissed the charges, finding for public safety. Congress passed Public Law 112-95, the FAA that Meredith was entitled to shoot down the drone while pro- Modernization and Reform Act of 2012, calling tecting his right of privacy and to prevent trespass. Boggs filed on the FAA to adopt regulations designed a trespass to chattel suit in the Western District of Kentucky, to integrate unmanned aircraft systems claiming that federal law applied.5

The drone shooting in Kentucky was reported nationally by the Washington Post and in numerous other publica-

20 | JANUARY/FEBRUARY 2017 into the national airspace system. 49 U.S.C. 40101 note. As a re- Drones weighing .55 pounds or less may not require registration.11 sult, the FAA adopted 14 CFR part 107, which became effective So the tiny mosquito sized drones, which have appeared on tele- on Aug. 29, 2016. vision shows but not yet on Amazon, may be outside the scope of the regulations. That may mean that until there are some privacy The main requirements are that private drone operators must reg- protection laws in place, tiny drones could surreptitiously fly in ister with the FAA and mark their drones so that the registered close proximity to persons on their own premises. Presumably the operator can be determined by the markings. The drones must be high cost of such a technological marvel will prevent this from used for non-commercial purposes. They must weigh less than 55 being a concern for most people, at least for now. pounds, including the camera or payload. They must be flown in line of site, during daylight hours. And they may not be operated PRIVACY PROTECTIONS THROUGH STATE LAW over persons. But there is no constraint regarding flying over private In addition to the FAA regulations, drone operators need to be property or some minimum height requirement while doing so.9 concerned with state criminal and civil laws that are not specific to drones but may regulate their actions anyway. And property The statute authorizing the regulations does not address privacy at owners may avail themselves of these laws to seek criminal prose- all. Its stated purpose is to ensure safety of the airspace, not privacy cutions, monetary damages and self-help remedies. of the citizens. Despite this, the safety regulations do indirectly yield some benefit with regard to privacy. State legislatures are just beginning to address the privacy and safety issues raised by drones. According to the National Confer- The requirement to register and mark your drone will mean that ence of State Legislatures, 17 states have adopted laws concerning the operator can’t fly in complete anonymity. If his/her drone is drones, mostly prohibiting flight near critical structures, such as involved in an incident such that it can be observed, the operator’s power plants and government buildings, or in emergency situa- name will be a matter of FAA record. And if it is flying close tions which might interfere with first responders. Only two states enough to be a bother, its markings may be observable with bin- have passed laws to protect privacy rights, Kansas and Louisiana. oculars or plain sight. Kansas proscribed certain activities by use of a drone. The bill The daytime and line-of-sight rules of operation require the op- states ‘‘Harassment’ shall include any course of conduct carried out erator to be able to see the drone at all times without binoculars through the use of an unmanned aerial system over or near any or other visual aids.10 The operator has to be near enough to see dwelling, occupied vehicle or other place where one may reason- the drone while it is flying and can’t have his view blocked by trees ably expect to be safe from uninvited intrusion or surveillance.”12 or privacy fencing. If the drone is in your back yard, the operator must be able to see the drone. If not, then it is flying illegally. And Louisiana has passed a prohibition on sexual voyeurism through use if he can see the drone, you can see him. The higher the drone, the of a drone. A person may not use a drone to look through a door more difficult it will be to see the operator but also, the less likely or window of a residence without the permission of the owner. 13 the drone will be an intrusion. Kentucky has not yet enacted any laws specific to drones. To advise a drone operator about what is currently permissible or to advise a home owner when it is okay to hit a drone with a baseball bat, the laws and precedents predating drones are all we have.

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WHAT OPERATION IS LEGAL? window, blinds and curtains will be far less effective in blocking Self-help is going to be dependent upon two main factors, the the view into the house. self-help measure used and the legality of the drone operation in progress at the time of the self-help. The closer question is the back yard. Some homes have a good deal of privacy due to fencing or remoteness. In that setting, a drone Obviously, compliance with the FAA regulations is the first or- could come upon prohibited sights accidentally, especially with der of business. The regulations are clear and non-compliance will children. be a problem for the operator. If there is a violation of the FAA regulations that is reported, law enforcement officials are likely to If a drone’s camera has directional or focused sound recording, respond. So the drone operator needs to register, fly during the day use of the camera will likely violate Kentucky’s statute on eaves- and in his line of sight. Should he fly the drone into an area where dropping. K.R.S. 526.020 makes it a crime to listen or record oral he can no longer see it because of tree cover or a privacy fence, he communication by means of any device, provided there is not con- is in violation and could be reported. sent of at least one person in the conversation. The statute makes it clear that the perpetrator’s presence is not necessary for a vio- In the Kentucky case mentioned above, the dismissal of charges lation. And the commentary notes that the statute is not based against the shooter is reported to have been due to the right to upon trespass; all that is necessary is the listening or recording of protect privacy and to protect against trespass. But the criminal the communication by the device. trespass statute does not seem to apply. The statute speaks in terms of entry upon a premises and does not mention anything about Noise from the rotors and the technology available to hobbyists the space above the premises.14 will make this type of privacy intrusion less likely than through video. A microphone with directional sound capability is proba- In addition, in D. E. v. Commonwealth, the Court of Appeals made bly a necessity in order to receive audible conversation recordings. it clear that physical entry upon the premises by the accused is a But the advantage to the home owner is the simplicity of the el- necessary element of Kentucky’s criminal trespass statute. Caus- ements. If the statute comes into play, picking up or recording a ing objects to come upon the victim’s premises is not sufficient conversation is all that has to happen for a violation. for a violation of the statute.15 In the case of a drone, the operator does not enter the premises and the object he controls only enters TORT LAW the air above the premises, conduct even further removed from Drones might violate tort law without violating any criminal stat- statutory elements. ute, causing civil liability on the part of the operator. Privacy in- trusions or non-criminal trespass may constitute actionable torts, Other criminal laws may be a better fit for protection of privacy though trespass is more likely to be included in the analysis of the from the intrusion of drones. Kentucky has laws against eaves- privacy intrusion claim. dropping and voyeurism.16 And the voyeurism law may be one that is easily or inadvertently violated. There is no Kentucky case regarding trespass without entry upon the premises but such an action is outlined in the Restatement K.R.S. 513.090 makes it a crime to use a camera (or many other (Second) Torts Sec. 158 and 159. Section 158 specifies that a tres- devices) to view or record sexual conduct, genitals, an undergar- pass occurs when the actor causes an object to enter upon plain- ment worn so as not exposed to the public, or the nipple of a tiff ’s land, though the actor does not. And section 159 deals spe- female’s breast. An offense is a class A misdemeanor. cifically with aircraft flying over “the immediate reach” of one’s land in such a manner as to cause substantial interference with the If a drone operator peeks in a window from close range, there is enjoyment of the land. a chance that one of the prohibited sights will be seen. Wearing only undergarments in the house is quite common among chil- The interference caused by drones will mostly be the emotional dren. To observe them by drone may well violate the statute. The impact of feeling exposed. So privacy claims will be a better fit for statute does require intention but that will be little comfort to a the concerns about drones hovering over someone’s yard. Most of drone operator accused of pointing a camera in someone’s home. the Kentucky cases discussing the right of privacy involve publish- ing a photograph of the plaintiff or information about him, but You may not think that sort of thing is likely to happen but such Kentucky has recognized a right of privacy that does not require incidents are reported in a New York Times story and in a Bloom- publication of anything. berg article.17 The drones came right up to the window of the home and hovered for several seconds before moving on. And this high- In Rhodes v. Graham, the Kentucky Court of Appeals recognized lights the difference between a neighbor looking in your window a right of privacy in a fact scenario that did not relate to defama- with binoculars and a drone. To illustrate the point, consider par- tion. In that case, Plaintiff brought a privacy violation claim due tially closed blinds. If you put your eye close to the opening, you to a defendant tapping his telephone. The claim was for intrusion can see quite a bit of the outside, but if you stand back from it, of privacy because at the time, there was no law against wiretap- 18 you can see almost nothing. Because drones can get close to the ping. The court defined the right of privacy as the right to be

22 | JANUARY/FEBRUARY 2017 left alone and stated, “A person is entitled to the privacy of his is probably the lesson to take from this analysis. You may be lucky home as against the unwarranted invasion of others, and a viola- enough to damage a drone and not be prosecuted but there is a tion thereof will give rise to an action.”19 risk that you will be prosecuted and under some circumstances, you will not be allowed the defense of justification. On the other SELF-HELP hand, drone operators run the risk of prosecution for more ex- Some property owners have been prosecuted for damaging drones treme conduct and run the risk of being sued for milder invasions flying over their property. So the question is when can you act? of privacy. Our Protection of Property statute does not seem to apply because it outlines when force can be used against another person.20 And CONCLUSION the statute also requires that the person using force is repelling at If a drone is violating the FAA regulations or looking in your least a criminal trespass. home’s windows, you may get away with self-help but you will at least be subject to having your actions evaluated in light of the Kentucky’s Justification statute and Choice of Evils statute seem circumstances. Until there are specific protections in place, if a to apply to self-help situations regarding drones and privacy.21 drone is not violating the law and not greatly infringing on priva- These statutes can be raised as a defense to criminal charges if a cy rights, it will be risky to use self-help. But the reality is that so home owner is prosecuted for damaging a drone. They allow for many instances of self-help will occur, we probably won’t have to exoneration if, as the names imply, the defendant was justified in wait long to have some precedents on drones and privacy. his actions or chose the lesser of two evils under the circumstances. ABOUT THE AUTHOR The Justification statute states that “justification as defined in this LARRY HICKS is a partner with Cetrulo, chapter” is a defense to prosecution. As we have seen, the Pro- Mowery & Hicks in Edgewood, Ky. Hicks tection of Property statute does not fit well but there is a more has an accounting degree from the University 22 general standard in the Choice of Evils statute. However, there of Kentucky and graduated Chase Law School must be an imminent harm and the defendant has no other choice in 1984. He primarily practices business liti- to prevent the harm except breaking the law, in this case, breaking gation and personal injury cases. the drone. It could be argued that with an isolated, imminent invasion of privacy, you could use simpler measures to protect yourself, closing shades or going inside your home. ENDNOTES 1. FAA Aerospace Forecast, 2016-2036. 2. FAA.gov, Sept. 27, 2015. The statute also states that the defense is unavailable if the defen- 3. VanityFair.com/style/2016/10-celebrity-wedding-planner-paparaz- dant’s actions are reckless. This point demonstrates a basic phi- zi-drone-strategies. losophy of this entire chapter of the criminal law; the defendant’s 4. Complaint, Boggs v. Merideth, No. 3:16-cv-6-DJH, at 13 (W.D. Ky. filed self-help may be justified, depending on how drastic or limited his Jan. 4, 2016). 5. Id. The complaint contends that Mr. Meredith is subject to federal, criminal actions are and how serious the threat he is countering. And that prosecution for firing upon an aircraft. 6. Washington Post, and see for example Fortune. com/2016/09/25/Drone-Shotgun-Airspace-Rights/. NYTimes.com/2016/01/28/style/neighbors/drones/ invade/privacy. 7. Congressional Research Service, Report 42940. 8. Causby v United States, 66 S.Ct. 1062, (1946). 9. 14 CFR part 107. 10. 14 CFR 107.31. 11. Registermyuas.faa.gov, though 14 CFR 107.3 and 107.13 seem to include all drones under 55 pounds. 12. K.S.A. 60-31a02. 13. Louisiana H.B. No. 635. The statute does specify an intention for sexual gratification. 14. K.R.S. 511.080. 15. D. E. v. Commonwealth, 271 S.W. 539 (Ky.App. 2008). 16. K.R.S. 513.090, K.R.S. 526.020. 17. Bloomberg.com/news/articles/2015/05/05/ creeps-embrace-a-new-tool-peeping-drones. 18. Rhodes v. Graham, 337 S.W.2d 46 (Ky. 1931). 19. Id at 47. 20. K.R.S. 503.080. 21. K.R.S. 503.020, K.R.S. 503.030. 22. K.R.S. 503.030.

BENCH & BAR | 23 Features:DRONE LAW

ews reports of use, and misuse, of drones have come to be commonplace. In 2015, the White House went on lock- Ndown when a drone crashed onto the south lawn.1 In 2014, a drone used for a commercial promotion cut part of a photographer’s nose off.2 Most recently a pitcher on the Cleveland Indians had to be taken out of a playoff game because of a drone injury to his pitching hand.3 But in October 2016, a Texas man was able to use social media to direct a drone to find a family member trapped by flooding in North Carolina.4 Like many emerging technologies drones have the capacity for both great good and great mayhem.

These situations present challenges to state legislators charged with creating policies that achieve balance between public safety and commercial innovation. The very idea of unmanned aerial vehicles is a modern concept, and the idea of affordable consumer-grade ones even more so. It would have been difficult if not impossible for government at any level to envision the explosion of this industry which simply did not exist 10 years ago.

There is lag between a technological innovation and the legislative and regulatory response. While drones are analogous to remote-controlled hobby airplanes, it is a comparison so tenuous as to render it almost useless. With these unmanned aerial devices coming into existence and their capabilities changing so quickly, policy makers are always going to be reacting to the marketplace. The Kentucky General Assembly now finds itself in the midst of placing a new technology under an appropriate regulatory environment—a task made even more complex by the realization that any Kentucky law may ultimately be preempted by federal action. Aerial vehicles of all varieties are the province of the Federal Aviation Administration (FAA). The federal government, usually through the FAA, has exclusive sovereignty over navigable airspace and therefore supremacy in promulgating regulations relating to drones.5 Such federal actions are covered elsewhere in this publication.

The focus of this article is on attempts by the Kentucky General Assembly to enact drone legislation. How state legislatures ultimately deal with the drone issue is an important question, despite the FAA’s supremacy. Though the FAA has and will continue to promulgate regulations, there will still be a number of policy areas upon which the states will be required to act to either conform to the federal regulations, fill in gaps, or create policies intentionally left open for state action.

According to the National Conference of State Legislatures, “[a]t least thirty-eight states have considered legislation related to [drones] in the 2016 legislative session. Seventeen states—Alas- ka, Arizona, California, Delaware, Idaho, Illinois, Indiana, Kansas,

24 | JANUARY/FEBRUARY 2017 Louisiana, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, of drones by state actors. It prohibited law enforcement agencies Vermont, Virginia and Wisconsin—have passed 31 pieces of leg- and their agents from using a drone “to gather evidence or other islation.”6 Note that Kentucky is not among those listed. information, or utilize, disclose, or receive information acquired in violation of this section. . . .” Exceptions were made for when valid In fact, no legislation has been signed into law governing the use search warrants were obtained authorizing the limited use of a of drones in Kentucky. This has left the courts to attempt to shoe- drone; when the information/evidence gathered was not going to horn in existing laws which were never designed to handle drones; be used in court proceedings or intelligence gathering; and when indeed, these laws never even contemplated such devices. As the the prohibited agency was a part of the military.11 Furthermore, unmanned aircraft industry continues to grow, this approach will HB 342 limited the scope of evidence gathering to targets of in- certainly be inadequate. vestigation and effectively banned the use of evidence gathered on non-targets in any way without court approval.12 The legal and policy areas implicated here are numerous and applying a one size fits all approach will prove ineffective. The num- It is common for new measures like this to fail the first time they ber of areas implicated is simply too vast to cover. That is not to say are submitted. Subsequent bills in both chambers contain evolu- that strides have not been made. Over the past few years, several tions of the language from the original and also take into account legislators have made efforts to address these issues. The following other factors like exigent circumstances. is meant to be a non-partisan overview of some of those efforts. As such, no sides will be taken. HB 375 of 2016 included search and seizure language similar to previous bills, but provided more exceptions for situations in- WHAT EXACTLY IS A DRONE? volving consent, search and rescue, imminent threat to safety, and One of the first difficulties to arise when crafting effective legis- declaration of a state of emergency.13 lation is proper definition. The first bill to deal specifically with drones, House Bill 342 of 2014, left the definition to the feder- CRIMINAL & CIVIL LIABILITY al government.7 Specifically, it referenced the definition of “un- The potential for misuse is not limited to law enforcement. Since manned aircraft” in the FAA Modernization Act of 2012. There, these devices allow users to extend their presence virtually any- “unmanned aircraft” is defined as “an aircraft that is operated where within range, appropriate measures are necessary to deter without the possibility of direct human intervention from within abuse and punish misconduct. Mostly, this involves applying ex- or on the aircraft.”8 In subsequent bills, the language itself was isting civil and criminal laws to actions. A recurring element in incorporated directly from the Act, rather than by reference. These many of the bills was the creation of separate and additional lia- bills include 2015’s HB 12 (an evolution of the previous bill) and bility when a drone is used. 2016’s SB 62. HB 375 added civil liability in the form of trespass. Under it, a There has yet to be a true consensus on the definition of “drone” property owner or occupant could “bring an action for trespass and other bills have included even broader definitions. Most re- against the owner or operator of an unmanned aerial vehicle that cent attempts at legislation have largely settled on a definition that is flown at a height of less than two hundred fifty feet over the takes into account recent changes at the FAA requiring federal property” if it had happened at least once before and if notifica- registration and identification. “‘Drone’ means any unmanned air- tion of non-authorization was given to the owner/operator. It also craft: (a) For which registration with the [FAA] is required . . . provided reasonable exceptions to liability.14 and (b) That is labeled or should be labeled with an N-number or other unique identifying number issued by the [FAA]. . . .” 9 This Multiple bills from the 2016 session dealt broadly with criminal has the advantage of being both specific and relying on the agency liability, creating the offense “unlawful use of a drone.” Unlawful which has supremacy. As such, it seems likely to be the most com- use would occur when someone used a drone for harassment, voy- monly used going forward. eurism, burglary, trespass, or theft by unlawful taking or disposition.15 It was a separate offense from those listed and ranged from SEARCH & SEIZURE a violation to a Class A misdemeanor.16 Interestingly, criminal A common refrain in the legislative discussion revolves around eavesdropping was not included in the list of offenses.17 right to privacy and the Fourth Amendment. The Fourth Amend- ment protection against unreasonable search and seizure is present A slightly separate issue came up in a few bills in the form of in nearly identical form in the Kentucky Constitution.10 Drones a prohibition on weaponization of drones.18 A simple search of present a new and effective way for law enforcement agencies to Google will return a plethora of videos involving drones equipped conduct surveillance and searches, but as with any form of search, with flamethrowers, firearms, and a variety of sharp objects, thus the potential for abuse is always present. demonstrating why such prohibitions are necessary.

HB 342 of 2014, otherwise known as the “Citizens’ Freedom from SPECIAL CASE: CRITICAL INFRASTRUCTURE Unwarranted Surveillance Act,” was the first to address this is- In 2016, a unique issue began to appear in the discussion: what is sue. Among other things, it placed several limitations on the use known as “critical infrastructure.” Such infrastructure is consid-

BENCH & BAR | 25 Features:DRONE LAW

ered vital to the functioning of the Commonwealth. In the two So what can the legal community and the public expect next ses- 2016 bills dealing with the subject, HB 445 and SB 281, the defi- sion? More of the same, most likely. The underlying issues have nition included power and water distribution, refineries, chemical not gone away. Some version of the Citizens’ Freedom from Un- and rubber plants, pipelines, and railroads. warranted Surveillance Act has appeared in both chambers. The Fourth Amendment implications will certainly be dealt with at Under both bills, a person is guilty of unlawful use of a drone some point, whether it be in the courts or the Legislature. Crim- as above if he or she “[k]nowingly uses a drone to conduct sur- inal liability language was common and probably will be again. veillance of, gather evidence or collect information about, or . . . Also, critical infrastructure is all but guaranteed to be present in record critical infrastructure without the prior written consent of legislation, given the fervor with which it appeared last session. the owner. . . .” HB 445 went further, adding civil liability. Dam- ages included a minimum compensatory amount of $10,000, tre- With major changes in the political landscape and rising public ble damages if the perpetrator was attempting to enrich them- interest, it will be interesting to see what happens with all of this selves, and costs.19 legislation in the coming session and beyond.

Note that critical infrastructure includes a wide range of facilities, public and private. This would allow potentially extraordinary re- ABOUT THE AUTHOR covery on the part of property owners. This clearly demonstrates TYLER PEAVLER is associate counsel in the the importance some lawmakers and interest groups place on pro- Office of the Kentucky Senate President, Sena- tecting these facilities. tor Robert Stivers. In his position he serves as legal and policy advisor to the Senate majority. NICHE ISSUE: OUTDOOR SPORTING He covers a broad range of issues, including Hunting and fishing have long been strong traditions in Kentucky agriculture, banking, insurance, licensing and that are enjoyed by a large segment of the population. These ac- occupations, and administrative regulations. He holds a Bachelor tivities are so beloved that they were enshrined in the Kentucky of Science in Agriculture, summa cum laude, from Murray State Constitution in 2012. “[C]itizens of Kentucky have the personal University and a Juris Doctor from the University of Louisville right to hunt, fish, and harvest wildlife, using traditional methods, Brandeis School of Law. subject only to statutes enacted by the Legislature, and to administrative regulations . . . .”20 In that spirit, two bills were introduced specifically dealing with this provision. ENDNOTES 1. See e.g, Schmidt, Michael S., A Drone, Too Small for Radar to Detect, Rattles the White House, New York Times, Jan. 26, 2015, http://www.nytimes. SB 56 of 2015 expressly prohibited the use of drones to obstruct 21 com/2015/01/27/us/white-house-drone.html. the lawful taking of animals by hunting, fishing, or trapping. SB 2. Stampler, Laura, TGI Fridays’ Seasonal Mistletoe Drone Literally Cut Off Part 62 of 2016 ensured that traditional methods were followed by of Someone’s Nose, Dec. 8, 2014, http://time.com/3624191/tgi-fridays-sea- prohibiting the use of drones to track, hunt, or harvest wildlife.22 sonal-mistletoe-drone-literally-cut-off-part-of-someones-nose/. 3. Lesmires, Doug, How did Trevor Bauer’s drone accident affect his World Series CONCLUSION: GOING FORWARD start?, Oct. 27, 2016, http://www.cleveland.com/tribe/index.ssf/2016/10/ how_trevor_bauers_drone_accide.html. The bills discussed here are as numerous as the issues they attempt 4. Ellis, Ralph, Drone, social media make flood rescue happen in real time, Oct. 12, to legislate. Though there are some similarities, none of them are 2016, http://www.cnn.com/2016/10/11/us/weather-matthew-drone-rescue/ 5. 49 U.S.C.A. § 40103. exactly the same as the others. One thing they do have in common 6. http://www.ncsl.org/research/transportation/current-unmanned-aircraft- is this: none passed. The closest was HB 120, which only made it state-law-landscape.aspx. through one chamber. Lack of movement on each of them could 7. H.B. 342, 148th Leg., Reg. Sess., § (1)(1)(a) (Ky. 2014). be due to any number of factors: budget sessions, lack of knowl- 8. FAA MODERNIZATION AND REFORM ACT OF 2012, PL 112-95, February 14, 2012, 126 Stat 11. edge or time, political forces, or any combination thereof. 9. E.g., S.B. 281, 150th Leg., Reg. Sess., § (1)(2) (Ky. 2016). 10. Ky. Const. § 10. This overview did not cover the myriad of outside forces involved. 11. H.B. 342 § (1)(5). A tremendous number of groups have interest in this legislation. 12. Id. at § (1)(6)-(1)(8). 13. H.B. 375, 150th Leg., Reg Sess., § (3)(3). Google, Amazon, and the Motion Picture Association of America 14. Id. At § (2). are only a few of the largest that have been involved. Many have 15. This broad number of offenses range from mere violations to Class B felo- significant investments in Kentucky and employ many Kentucki- nies. See generally, KRS 525.070; 531.090; 511.020; 511.060; 514.030. ans. It is important that legislation be crafted to balance everyone’s 16. E.g., H.B. 120, 150th Leg., Reg. Sess., § (1)(2)-(1)(4). 17. See generally, KRS 526. interests. Furthermore, the Uniform Law Commission has ap- 18. E.g., S.B. 281 § (2)(1)(c). pointed a committee to “study the need for and feasibility of state 19. H.B. 445, 150th Leg., Reg. Sess. (Ky. 2014. legislation concerning the regulation of the use of drones,” which 20. Ky. Const. § 255A. could affect the drafting of legislation.23 21. S.B. 56, 149th Leg., Reg. Sess. (Ky. 2014). 22. S.B. 62, 150th Leg., Reg. Sess., § (1)(2). 23. http://www.uniformlaws.org/Shared/ProjectsList/ProjectsList.pdf.

26 | JANUARY/FEBRUARY 2017 COLUMNS

Chase Externships Let Students EXPERIENCE BEING LAWYERS

hird-year student Ashley Kirkpatrick made a career-changing WHAT STUDENTS DO: Students carry out assignments the Tdiscovery during her externship at Salmon P. Chase College lawyers who are their externship field supervisors give them. The of Law: There are more ways to practice law than drafting docu- externship for Ms. Kirkpatrick at a company that reviews medical ments and questioning witnesses. research on humans involved analyzing warning and determination letters issued by federal agencies, attending meetings to evaluate re- She discovered “research law,” a developing field that covers legal search projects, and researching state statutes related to research on issues involved in medical and scientific research. “This is not typi- humans. Another student with a limited law license had 20 bench cally a subject in law school, so this externship experience provided trials with a county prosecutor and sat second-chair in a jury trial. an illustration of a unique career option available to me,” she says. HOW EXTERNSHIP EXPERIENCE RELATES TO POTEN- It was just the type of experience Professor Jennifer Kinsley, Chase TIAL CAREERS: “The classroom component of the program is director of experiential learning, hopes students will have. designed to enable students to think in a deeper way about their professional development, career choices, and values,” Professor Kinsley says. “Assignments typically focus on aspects of professional identity that are untouched by other courses, topics such as how to form a professional network, how to incorporate technology into the practice of law, time management, work/life balance, rebounding from mistakes, cross-cultural communication, and so on.”

WHAT IT MEANS INDIVIDUALLY: “All students in the field placement program receive one-on-one, personalized feedback and mentoring from me,” Professor Kinsley says. “Students who are seeking a field placement also regularly consult with me about which opportunities would best enable them to achieve their educational goals.” “Chase offers a wide variety of field placement opportunities because we believe, as an institution, that our graduates should be able For Ms. Kirkpatrick, her externship is paying off even before she to practice law successfully from the very first day they are sworn applies her discovery of a different way to practice law to a career. into the bar,” she says. “The best way to do that is not only to teach “This experience has made me more eager to try new things at students the substantive law they need to know as practitioners, Chase. It reassured me that although I do not want to be a litiga- but to expose them to what the work of a lawyer is all about.” tor, I can still advocate for others and provide traditional legal services in a different environment,” she says. Even though the work Ms. Kirkpatrick discovered was not what she had anticipated for a lawyer, most externs gain more tradi- At Chase, an externship just might be the experience that helps tional experience drafting memoranda and agreements, doing le- students shape a career for a lifetime. gal research, investigating claims, and appearing in court (with limited licenses). Here is what all students can expect:

WHERE EXTERNSHIPS OCCUR: Typically, students work in solo practices or small firms, in corporate law departments, at government agencies, or with judges. “Our students have been placed with all of the sitting federal district court judges on both sides of the (Ohio) river, the Supreme Court of Kentucky, the Kentucky Court of Appeals, the Tennessee Court of Appeals, and trial courts throughout Ohio, Kentucky, and elsewhere,” Professor Kinsley says.

BENCH & BAR | 27 COLUMNS

KENTUCKY LAW JOURNAL HOSTS SYMPOSIUM ON 30-YEAR HISTORY OF BATSON V. COMMONWEALTH

n Friday, November 4, the Kentucky Law Journal (KLJ) and the University of Kentucky College of Law co-hosted a Christia Spears Brown, Professor at the University of Osymposium entitled, “30 Years of Batson: a Retrospective.” Kentucky The symposium took place in the UK Law Courtroom and was Catherine Grosso, Professor at Michigan State University open to the public. College of Law Featuring the nation’s top scholars, the program focused on the Nancy Marder, Professor at Chicago-Kent College of Law 30-year history of Batson v. Commonwealth. In the case, the Unit- Barbara O’Brien, Professor at Michigan State University ed States Supreme Court ruled that a prosecutor’s use of peremp- College of Law tory challenge in a criminal case (the dismissal of jurors without stating a valid cause for doing so) cannot be used to dismiss jurors Mark Peffley, Professor at the University of Kentucky based on their race. The Court ruled that this practice violated the Equal Protection Clause of the Fourteenth Amendment. Subse- “My favorite part of the symposium was meeting Stephen Bright. quent jurisprudence has resulted in the extension to civil cases and Professor Bright is a long-standing role model of mine and meet- cases where jurors are dismissed based on their sex. ing him was beyond remarkable. I stand with him on many subjects, and I deeply admire his activism,” said R. Nicholas Rabold, The tenth oldest student-run law review was fortunate to host Editor-in-Chief of the KLJ. two scholars directly involved in Batson: David Niehaus (Adjunct Lecturer at the University of Louisville), who served as the de- A luncheon immediately followed the morning panels, featur- fense attorney for James Batson and Joe Gutmann (Central High ing Judge Denise Clayton, the first African-American woman to School Law and Government Magnet Coordinator and Adjunct serve on the Kentucky Court of Appeals. In addition to presenters Faculty at the University of Louisville), who was the Assistant discussing the history of Batson and its implications, students and Commonwealth Attorney who prosecuted the case. activists participated by posing questions throughout the symposium.

“UK Law faculty and staff are immensely proud of the hard work and leadership put forth by our students,” said David A. Brennen, Dean at UK Law. “The discussion of landmark cases among some of the nation’s top scholars is critical in impacting law and policy, while also enhancing the academic experience for every UK Law student.”

Stephen Bright, president and senior counsel at the Southern Cen- David Niehaus, adjunct lecturer at the University of Louisville, and ter for Human Rights, visiting Joe Gutmann, Central High School law and government magnet coor- lecturer at Yale Law School. dinator and adjunct faculty at the University of Louisville.

“It was a wonderful opportunity for them to share their perspective of the case,” said Catie Coldiron, Special Features Editor for the KLJ.

Other notable speakers included: Christia Spears Brown, professor at the University of Kentucky. Stephen Bright, President and Senior Counsel at the Southern Center for Human Rights, Visiting Lecturer at Yale Law School

28 | JANUARY/FEBRUARY 2017 UK Law's Allison Connelly is

llison Connelly, Director of the Legal Clinic and James come the only woman ever named as Kentucky’s Public Advocate, and Mary Lassiter Professor of Law, is the recipient of the head of Kentucky’s statewide public defender system. A the 2016 Duncan Teaching Award at the University of Kentucky College of Law. Professor Connelly teaches litigation skills, criminal trial process and legal writing, and is the director of the Kentucky Legal Edu- Every year, a UK Law faculty member is recognized for excellence cation Opportunity (KLEO) Summer Institute. According to her in the classroom, courtesy of the Robert M. and Joanne K. Dun- students, Professor Connelly’s classroom teaching is terrific. Her can Faculty Improvement Fund—established in 1982 to promote students enjoy her, both inside and outside the classroom. They outstanding teaching performance at the college. describe her teaching as “great” and truly enjoy the clinic experience. She often receives ratings of “outstanding” from students. Professor Connelly joined the faculty in 1996 as the first director of the College’s Legal Clinic. Prior to joining UK Law, she spent Professor Connelly is the founder of the Kentucky Intrastate 13 years as a state public defender representing individuals unable Mock Trial Competition, and is also the coach of the College’s to afford legal counsel, at all levels of the criminal justice system, highly successful trial teams, which include 11 nationally ranked including death penalty cases. She rose through the ranks to be- trial teams in the last 19 years. She has received numerous awards for teaching and public service, including the Kentucky Bar Association’s 2015 Donated Legal Services Award, the 2011 Kentucky Bar Association’s Service to Young Lawyers Award, the 2011 NAACP Empowerment Award and the 2009 UK Alumni Association Great Teacher Award. She earned her bachelor’s degree in political science from UK in 1980 and her juris doctor from the UK College of Law in 1983.

“Professor Connelly is fully engaged in the academic welfare of her students and has done an admirable job in supporting them both inside and outside of the classroom,” said David A. Brennen, Dean at UK Law.

The recipient of the Duncan Teaching Award receives a one-time award of $5,000.

BENCH & BAR | 29 COLUMNS

ESTATE PLANNING AND ELDER LAW ARE FOCUS OF NEW BRANDEIS LAW PROGRAM

hat started as a Brandeis Law class assignment has grown with elderly relatives so that they could take initial steps toward into something much bigger—a program that aims to gracefully and effectively aging. Wserve as a community resource for the issues surround- ing end-of-life planning. Topics ranged from necessary legal documents, common adverse drug reactions and personal safety issues. In Professor Goldburn P. Maynard Jr.’s spring 2016 elder law class, he knew he wanted to make group projects a major component. Speakers were Alexander Brewer, pharmacy resident, University The class focused on three projects: composing an online Medic- of Kentucky; Paul Troy, senior crime victim advocate, ElderServe aid primer, drafting a short guide to advanced care directives and Inc.; and Misty VanTrease, attorney, Kentucky ElderLaw PLLC. planning a symposium on aging. EPEL is not Brandeis Law’s first foray into estate planning. Its “I found that my students outmatched my expectations,” Maynard annual Estate Planning Institute is gearing up for its 20th year of says. “They were pushing it in a bigger direction.” offering CLE to regional attorneys.

That momentum has led to the Estate Planning and Elder Law EPEL will incorporate that program and serve as a central re- Program at Brandeis Law. source for community members and practitioners alike who are interested in estate planning and elder law. “Estate planning and elder law are topics that we typically avoid at all costs, but these “The EPEL program is an exciting application of what we have issues affect us all, whether directly or as learned in class. It will provide approachable insights into the le- we care for loved ones. I hope this program galese of estate planning for locals who are unsure of where to can both make these discussions more ac- start,” says second-year student Chase Cunningham. “We also cessible as well as provide resources for our hope it will serve as an avenue for Louisville attorneys to reach aging community,” Maynard says. those in need of such planning.”

The program, in its early stages, is growing from the ground up For second-year student Marianna Michael, the program has and is powered by students, he says. shown her the intricacies of Kentucky law and the importance of translating those laws into language clients can understand. “The Estate Planning and Elder Law (EPEL) Program helps to connect students, profes- “As attorneys, it’s a really good training tool to learn how to in- sionals, and members of the community in teract with people,” she says. “We can act as the advocates we’re confronting important issues of succession, in training to be.” long-term care and end-of-life planning,” reads the program’s mission statement. ABA ATTORNEY AND BRANDEIS GRAD REFLECTS ON ELDER LAW FIELD Eventually, EPEL could add more related cours- These areas of law are seeing more of a focus today, says David es, explore public service opportunities and even work to impact Godfrey, senior attorney for the American Bar Association Com- policy. mission on Law and Aging and a 1999 Brandeis Law graduate.

“This is moving organically, and we’ll see where it goes,” Maynard When Godfrey was a student at Brandeis Law, elder law wasn’t says. even offered, he says.

EPEL already has planned one program: The symposium that But now, “There’s a population bulge that is moving through. started as a class assignment came to fruition in November. There’s a growth in the number of older adults.”

The event offered legal, medical and social perspectives on aging Most people think of elder law and estate planning in terms of in the 21st century and served as a primer for the elderly and those “who gets my stuff,” Godfrey says. But in actuality, elder law applies to the time between adulthood and death.

30 | JANUARY/FEBRUARY 2017 “I call it planning for incapacity,” he says, adding that people need to plan for how they’ll manage their finances, living ar- rangements and health care. Do you have clients eligible to receive benefits under an plan? This area of law appeals to attorneys who ERISA like transactional and consultative work, Godfrey says. We can help. “You’re working to guide people and fam- Put our ERISA experience to work for your clients! ilies through complicated and difficult times in their lives,” he says. “It’s half social ERISA work and half law.” • Long-term Disability For young attorneys interested in a career • Short-term Disability in elder law or estate planning, Godfrey • Life/Accidental has a few suggestions. Death Insurance First, find a mentor who has worked in the Early representation is key, so call us today. area for many years.

It’s also important to understand how illness and dementia can affect a person’s ability to understand legal advice. Godfrey suggests volunteering with a hospice organization or with the Alzheimer’s Associa- tion. As a pro bono attorney, he accompa- nied hospice social workers as they made 800-249-3731 house calls and was able to gain a better 201 West Short Street, Suite 800 • Lexington, KY 40507 understanding of clients’ lives. This is an advertisement Services may be performed by other lawyers And finally, “You’ve got to love older people — their life experience, their outlook on the world.”

To view the current Hot Topics article, written by Robert Brammer, visit www.kybar.org/page/ hottopics.

BENCH & BAR | 31 EFFECTIVE LEGAL WRITING

IT IS WRITTEN (POORLY): IDENTIFYING AND CORRECTING THE IMPROPER USE OF THE PASSIVE VOICE DR. JOANNE SWEENY, UNIVERSITY OF LOUISVILLE

ne of the most common pieces of advice writing experts give is that writers should avoid using “the passive voice.” Strunk & White’s Elements of Style, for example, argues that “[t]he active voice is Ousually more direct and vigorous than the passive.”1 Similarly, Joseph M. Williams’s Style: Towards Clarity and Grace, advocates avoiding passive verbs to “make your style more direct.”2 Indeed, passive sentences are generally weaker sentences that tend to be longer and more ambiguous, which makes them less effective in communicating to and persuading readers.

However, law students and lawyers often have trouble distinguishing what is actually a passive sentence and whether the passive voice is ever usable in legal writing. This article will attempt to break down the concept of the passive voice and show some easy techniques writers can use to identify when they are using the passive voice to ill effect and how to correct it.3 THE PASSIVE VOICE: WHAT IS IT? A comprehensive explanation of the difference between the active and passive voice can be found in Williams’s book:4 In active sentences, the subject typically expresses the agent of an action, and the object expresses the goal or the thing changed by the action:

subject object Active: The partners  broke  the agreement. agent goal

In passive sentences, the subject expresses the goal of an action; a form of be precedes a past participle form of the verb; and the agent of the action may or may not be expressed in a by-phrase:

be prepositional subject (past participle) phrase Passive: The agreement  was broken  by the partners goal agent

Generally, a passive sentence uses a “to be verb” instead of a more active verb. In Williams’s example above, the verb “broke” is active and “was broken” is passive. A passive sentence can also be identified by the use of a prepositional phrase. In the example above, “the partners” becomes “by the partners.”

Another way to identify passive sentences is to identify the action and the actor in a sentence.5 If the actor comes before the action, the sentence is in active voice but if the actor comes after the action, it is in the passive voice. For example, in the sentence “Sarah mailed the letter,” the action is “mailed” and the actor is “Sarah.” If the sentence is “The letter was mailed by Sarah,” the action is still “mailed” but the actor, “Sarah” comes after it.

THE ACTOR-LESS PASSIVE SENTENCE Things become more difficult when the actor is removed altogether from the sentence, which is another common format for the passive voice. When the actor is removed from the sentence, it is more difficult to determine whether it is passive because there will be no prepositional phrase to signal the writer. For instance, without the phrase “by the partners,” Williams’ example above becomes “The agreement was broken,” which makes the sentence shorter but by no means direct or active.

Moreover, a passive sentence that has no actor can confuse the reader. For example, the sentence “In the balancing of interests, full factual development is needed in order to ensure the fair administration of jus-

32 | JANUARY/FEBRUARY 2017 tice,” begs the questions of who needs this development and who ABOUT THE AUTHOR is doing the balancing of interests. In contrast, the sentence “To JOANNE SWEENY teaches Lawyering Skills balance the interests, the court needs full factual development in and Writing For Practice at the University of order to ensure the fair administration of justice” clearly identifies Louisville. Prior to coming to Louisville, she the actor and answers the questions left unresolved by the passive was a Westerfield Fellow at Loyola Universi- sentence. ty New Orleans College of Law. After graduating Order of the Coif from the Universi- Writers can identify the actor-less passive sentence by using the ty of Southern California Law School, she actor/action analysis described above. For example, the sentence clerked for the Honorable Ferdinand F. Fernandez at the Ninth “The letter was mailed” still has the action “mailed” but does not Circuit Court of Appeals. Professor Sweeny then practiced as an mention an actor. However, if an actor were identified, they would employment litigator in Los Angeles before completing her PhD have to come after the verb. Another, more entertaining way to in law at Queen Mary, University of London. Professor Sweeny’s identify an actor-less passive sentence is to employ the phrase “by current scholarly interests include comparative constitutional law, 6 zombies.” Simply put, if it makes sense to add “by zombies” after freedom of expression, law and gender, and legal history. your verb, then you are writing in the passive voice. Here is that technique in action: ENDNOTES verb verb 1. William Strunk, Jr. & E. B. White, The Elements of Style 18 (3d ed. 1979). It has been established [by zombies] that breach is found 2. Joseph M. Williams, Style: Towards Clarity and Grace 36 (1990). 3. Many of the ideas presented in this article were the result of a discussion [by zombies] when the school has notice. on the Legal Writing Institute listserv by legal writing professors across the country. The author has sincere gratitude for the contributors to the discussion THE ACTIVE VOICE IN DISGUISE and the Legal Writing Institute generally. Where possible, the author has at- One note of warning when looking for the passive voice: do not be tributed the ideas and techniques she received from these esteemed colleagues. 4. Williams, supra n. 2, at 36. over-vigilant. Sometimes a “to be” verb is an active verb. For exam- 5. This idea was originally provided to the author by Lurene Contento, a profes- ple, the sentence “Robert was angry” has a “to be” verb but there is sor at The John Marshall Law School. nothing passive about it. Any attempts to use a more active verb 6. This idea was originally provided to the author by Deborah L. Borman, a would only lead to an needlessly complex and confusing sentence. professor at Northwestern University Pritzker School of Law. 7. Thanks to Robert Volk, Boston University School of Law, for his handout on Remember, the key is looking for where the actor sits in relation to this topic. the action. In the sentence above, “Robert,” the actor, comes before the action “was” so the sentence, despite the use of the “to be” verb, is active. THE PASSIVE VOICE: IT CAN BE USED SOMETIMES! Finally, writers should know that the passive voice is sometimes useful in legal writing.7 Indeed, the passive voice can be found in this article so the author is by no means universally opposed to it. Generally, the passive voice can and should be used when the author either does not know who the actor is or wishes to distance the actor from his or her actions. For example, if you repre- sent a criminal defendant, using the passive sentence “The victim was killed” may be better than the active sentence “The defendant killed the victim.”

Overall, the writer’s chief concern should be communicating her thoughts, ideas and arguments to the reader in a clear and or- ganized way. Typically, passive sentences are longer, more complex, and more ambiguous than active sentences. For that reason, writers should use them sparingly and with great care.

BENCH & BAR | 33 YOUNG LAWYERS DIVISION THE YOUNG LAWYERS DIVISION NEEDS YOU! BY REBECCA R. SCHAFER, YOUNG LAWYERS DIVISION CHAIR

hether you are looking for a volunteer opportunity to make you feel young at heart, a way W to honor someone who has contributed to young lawyers in Kentucky, or are yourself a young lawyer seeking to get more involved—keep on reading. The Kentucky Bar Association’s Young Lawyers Division (YLD) has just the opportunity for you! BULLYPROOF In a 2013 study by the University of British U@18 Columbia, infants between the ages of nine Reaching the age of 18 means a lot of new freedoms and responsibilities. In 2008, the to 14 months were offered a choice be- YLD implemented the U@18 program, which is designed to teach high school seniors tween a snack of graham crackers or green some of the basic legal rights and ramifications of becoming adults. Now, eight years later, beans. The children were then shown videos volunteers have given the U@18 presentation in more than 20 counties, and reached over of puppets who also chose between the 3,000 students. The hour-long presentation consists of 10 video vignettes that give stu- snacks of graham crackers or green beans. dents real-life scenarios on topics such as motor vehicle laws, employment discrimination, Interestingly, the children expressed fa- domestic violence, jury duty, tenant rights, and contracts. After each skit, the presenter voritism towards the puppets who picked engages the students in a thoughtful discussion of the basic laws involved, and answers the same snack as themselves, as well as questions the students may have. The YLD is looking for attorneys to volunteer to give favoritism to new puppets who bullied the the presentation at their local high school this coming spring. You are not required to puppet that liked different snacks from have any specific prior knowledge or experience, and minimal preparation is needed as the infant. UBC psychology professor Ki- the video and companion booklet for the presenter are already created. And I can tell you ley Hamlin noted the innate tendency at from firsthand experience that it is a very fun and rewarding hour! For more information a very early age to lack empathy for any- on volunteering, please email the YLD U@18 Committee Chair, Brandon Johnson, at one who is perceived to be different from [email protected]. yourself, regardless of what that difference may be. AWARD NOMINATIONS Each year the YLD recognizes exceptional contributions to the legal profession through the This study demonstrates the importance following awards presented at the annual bar convention. If you know of a deserving recipient, of educating all children regarding the ef- please visit the YLD website at www.kbayld.org for more information on the nomination fects of bullying and increased self-aware- process. Nominations are due by FRIDAY, MARCH 31, 2017. ness about the impact our actions have on others. In an effort to help eradicate bully- The OUTSTANDING YOUNG LAWYER AWARD honors a Kentucky attorney who has ex- ing, the American Bar Association, along celled in the practice of law and community service. Any Kentucky lawyer who, as of July with Kentucky attorney and YLD member 1, 2016, has been engaged in the practice of law for 10 or fewer years, or who is 40 years Roula Allouch, developed the Bullyproof old or younger, is eligible for nomination. program in 2013. Bullyproof takes lawyers into local middle schools to educate youth The NATHANIEL R. HARPER AWARD recognizes a person or organization that has on reporting and preventing bullying. In demonstrated a commitment to changing the face of the Kentucky Bar by encouraging 2014, the YLD, with the generous support the inclusion of women, minorities, persons with disabilities, LGBT individuals, as well of the Kentucky Bar Foundation, began as promoting full and equal participation in the legal profession by all unrepresented or providing this community service through- underrepresented groups. out the Commonwealth of Kentucky. The YLD encourages attorneys of all ages and The YOUNG LAWYER SERVICE TO COMMUNITY AWARD commends a member of the backgrounds to volunteer to give a Bully- YLD for exemplary service to his or her community through volunteerism, service to proof presentation. The one-hour presenta- non-profit organizations, and/or pro bono legal representation. tion incorporates a video presentation, in- teractive game, and classroom discussion. The SERVICE TO YOUNG LAWYERS AWARD acknowledges a lawyer, non-lawyer, or or- For more information on volunteering, ganization for exceptional contributions to the professional and personal advancement please email the YLD Bullyproof Com- and mentorship of young lawyers in Kentucky. mittee Chair, Kate Ward, at kate.ward@ yum.com.

34 | JANUARY/FEBRUARY 2017 ELECTIONS There are seven District Representatives on the YLD Executive Are you a member of the YLD who would like to be more involved Committee—one from each Supreme Court district. Any mem- with the KBA and enhancing the legal profession in Kentucky? ber of the YLD in good standing may be elected a District Rep- If so, please consider submitting your nomination for election to resentative. the position of YLD District Representative or YLD Officer. Any YLD member wishing to be considered for election must noti- There are four Officers on the YLD Executive Committee – fy Zach Horn, YLD Secretary/Treasurer, in writing by midnight Chair, Chair-Elect, Vice Chair, and Secretary/Treasurer. The cur- (EST) on Saturday, April 1, 2017. Nominations may be emailed rent Chair-Elect will automatically succeed to the office of Chair. to Mr. Horn at [email protected]. Ballots for contested elec- To be eligible for election to office of Chair-Elect, Vice Chair, or tions will be emailed no later than April 14, 2017. All dues paying Secretary/Treasurer, the nominee must be a member of the YLD members of the YLD are eligible to vote for the District Repre- in good standing and have previously served on the YLD Execu- sentative for their Supreme Court District and the YLD Officers. tive Committee for at least one year. Voting for any contested elections will close on April 28, 2017.

SIGNUP ONLINE BY MARCH 26, 2017 DONATIONS COLLECTED MARCH 27, 2017 – APRIL 7, 2017 ATTORNEY GENERAL CUP AWARDED TO THE WINNER ON JUNE 22, 2017

NS IA K C U T

A HUGE THANK YOU TO OUR SPONSORS BAR NEWS summary of minutes kba board of GOVERNORS MEETING SEPTEMBER 16, 2016

The Board of Governors met on Friday, Sept. 16, 2016. Offi- 13 and the Legal Food Frenzy Campaign scheduled for cers and Bar Governors in attendance were, President M. Sullivan; March 27 through April 7, 2017. Vice President D. Ballantine and Young Lawyers Division Chair • President R. Michael Sullivan reported that the 2017 R. Schafer. Bar Governors 1st District – M. Pitman, F. Schrock; Annual Convention Planning Committee has been 2nd District – T. Kerrick, 3rd District – M. Dalton, H. Mann; 4th formed. The Planning Committee held their first meet- District – A. Cubbage; 5th District – M. Barfield, E. O’Brien;6 th ing on August 26 and both the Planning and CLE Pro- District – G. Sergent, S. Smith; and 7th District – M. McGuire, J. gram Committees are working to provide a very suc- Vincent. Officers and Bar Governors absent were:President-Elect cessful convention. W. Garmer, Immediate Past President D. Farnsley, Bar Governors J. Meyer and B. Simpson. • Approved sections retention of funds for the current year while the Board of Governors continues to address In Executive Session, the Board considered seven (7) default dis- and monitor the carry forward of section funds. ciplinary cases, involving five attorneys. Judy Campbell of Frank- • Approved the appointment of the task force to study fort, Brenda Hart of Louisville, Dottye Moore of Elizabethtown KYLAP addressing issues relating to service, funding, and Dr. Leon Mooneyhan of Shelbyville non-lawyer members staffing, involvement in the discipline process and how serving on the Board pursuant to SCR 3.375, participated in the to better assist attorneys with substance abuse and men- deliberations. tal health issues.

In Regular Session, the Board of Governors conducted the fol- • Approved the appointment of a Law Practice Task lowing business: Force, Chaired by Robert Young of Bowling Green, to • Heard a status report from the Rules Committee. develop a comprehensive plan for providing law practice services for KBA members. • Attorneys’ Advertising Commission Chair Kerry D. Smith presented the Commission’s annual report. • Sullivan reported that Immediate Past President Doug- lass Farnsley has been chosen to join the National Con- • Approved Ethics Opinion E-439 as a formal opinion ference of Bar Presidents Executive Committee. regarding adult abuse, neglect or exploitation of an elderly or special needs client. Also approved withdraw- • Approved two (2) members for disabled inactive status ing formal Ethics Opinion E-304. pursuant to SCR 3.030(5)(a). • KBA Deputy Bar Counsel Jane Herrick presented the • Approved the recommendation of the KBA Investment Clients’ Security Fund annual report. Committee to make a lump sum principal bond payment in the amount of $300,000 for the Bar Center building. • Probate & Trust Law Legislation Committee Chair This will reduce the interest expense and be a savings of Walter R. Morris, Jr., presented a package of legislative approximately $15,000. proposals and requested permission to present them to the Legislature with the endorsement of the Section in • Executive Director John Meyers reported that the Di- accordance with the KBA Legislative Policies and Pro- rectors’ and Officers’ Insurance Policy has been renewed cedures. with RSUI with no increase in rate. • Director of CLE Mary Beth Cutter presented the CLE • Meyers gave an update on the IT project. Commission Annual Report. • Meyers reported that the Supreme Court reappointed • Young Lawyers Division (YLD) Chair Rebecca Scha- lay members Judy McBrayer Campbell of Frankfort fer reported that the YLD recently partnered with the and Dr. Leon Mooneyhan of Shelbyville to the Board Kentucky Certified Public Accountants Emerging Pro- of Governors for a second, two-year term commenc- fessionals in Louisville for a successful networking event. ing on Nov. 9, 2016. Schafer also reported on the following activities of the Do you have a matter to discuss with the KBA’s Board of Division: The Road Less Traveled event at UK Law Governors? Board meetings are scheduled on: School, 2016 Swearing-In Ceremony scheduled for Oct- March 17-18, 2017 and May 19-20, 2017 ober 10 for new attorneys, programming for the 2017 To schedule a time on the Board’s agenda at one of these Annual Convention, the ABA 2018 Young Lawyers’ meetings, please contact John Meyers or Melissa Blackwell Division Spring Conference in Louisville on May 10- at (502) 564-3795.

36 | JANUARY/FEBRUARY 2017 BAR NEWS

Do you know someone who 2017 ELDER LAW could win the… SPRING CLE SEMINAR 2017 KBA Annual SPONSORED BY THE KBA ELDER LAW SECTION Student Writing The Kentucky Bar Association (KBA) Elder Law Section presents the 2017 Elder Competition? Law Spring CLE Seminar on March 24, 2017. The seminar will be held at the Embassy Suites Lexington, 1801 Newtown Pike, Lexington, KY 40511. Registra- The Kentucky Bar Association invites and tion opens at 8:00 a.m. and the program begins at 8:30 a.m. This program has been encourages students currently enrolled at approved in Kentucky for 7.00 CLE credits. the University of Kentucky College of Law, the University of Louisville Louis REGISTRATION FEES* D. Brandeis School of Law, and the Elder Law Section Members $200 Northern Kentucky University Salmon P. All Other Attorneys $225 Chase College of Law to enter the KBA Annual Student Writing Competition. Paralegals $75 This competition offers these Kentucky Law Students FREE legal scholars the opportunity to earn rec- *Includes a copy of the course materials in either print or ognition and a cash award. First, second, PDF format and lunch for all attendees. and third place awards will be given. Entries must be received by Please select your preferred materials format while registering online. If you do June 1, 2017. not make a selection, you will receive the PDF download. All attendees will receive a link to the program materials on the KBA website prior to the program date. 1st Place - $1,000 * 2nd Place - $300 Space is limited, so please register early. REGISTRATION FOR THIS PROGRAM Pre-registration is required as space and 3rd Place - $200 WILL CLOSE MARCH 17, 2017. seminar materials cannot be guaranteed otherwise. Students may enter their previously un- REGISTER ONLINE AT published articles. Articles entered should be of interest to Kentucky practitioners http://www.kybar.org/event/2017ElderLawSeminar and follow the suggested guidelines and and pay by credit card (Visa, Mastercard, American Express requirements found in the “General For- and Discover accepted). mat” section of the Bench & Bar Editorial Guidelines. For inquiries concerning the KBA Annual Student Writing Compe- tition or to receive a copy of the Bench & Bar Editorial Guidelines, contact Shan- non H. Roberts at [email protected] or call (502) 564-3795 ext. 224. Submit entries with contact information to: Shannon H. Roberts Communications Department Kentucky Bar Association 514 West Main Street Frankfort, KY 40601-1812

*Also includes possible publication in the Bench & Bar.

BENCH & BAR | 37 BAR NEWS

do not keep themselves nor their home clean; they do not eat ETHICS OPINION properly and a sudden loss of weight is evident; they do not seek nor would know how to obtain medical attention; they misplace KBA E-439 their valuables, money and the like; they do not pay or they over- look the necessary payment of household expenses; they are con- Issued: September 16, 2016 fined to bed or otherwise immobile; they are dependent on others The Rules of Professional Conduct are amended periodically. for the necessities of life. Lawyers should consult the current version of the rule and comments, SCR 3.130 (available at http://www.kybar.org/237), One who has assumed a caretaker’s role is obligated to provide before relying on this opinion. the services necessary to maintain the health and welfare of the older person; failure to do this is neglect. KRS 209.020(16). And QUESTION 1 financial exploitation may become evident. Spending the adult’s What should an attorney do when the attorney has reason to be- money for something other than the welfare of the adult is evi- lieve that an elderly or special needs client is or has been abused, dence of financial exploitation. KRS 209.020 (9). This situation neglected, or exploited? occurs when someone, often a caretaker, spends (misappropriates) the adult’s money and is exacerbated when the caretaker with- ANSWER draws the adult’s money from a trust or the adult’s bank account. After careful investigation of the underlying facts, the attorney should take remedial action if necessary to protect the client from What is abuse? Less frequent than neglect or exploitation, adult abuse, neglect or exploitation. See opinion. “abuse” is the infliction of injury, unreasonable confinement, -in timidation or punishment that results in physical pain or mental QUESTION 2 injury. Neglect imposed as punishment would fit this definition What should an attorney do when the attorney has reason to believe that a client is or has abused, neglected, or exploited a person In the opinion of the Committee, Kentucky’s mandatory report- to whom the client owes a fiduciary duty? ing requirements would not be construed by the Kentucky Su- preme Court to require that an attorney reveal confidential client ANSWER information in order to make a report of abuse, neglect or ex- The attorney should advise the fiduciary client to stop the abuse, ploitation to or by the attorney’s client. The Kentucky Constitu- neglect or exploitation and to rectify any past harm. If the fiducia- tion vests the judicial power of the Commonwealth exclusively ry client refuses to comply with this advice, the attorney may re- in the Court of Justice (sec. 109) and provides that the Supreme veal client confidential information if necessary to stop the abuse Court of Kentucky “shall, by rule, govern admission to the bar and neglect or exploitation or to rectify past harm. See opinion. the discipline of lawyers.” (sec. 116). In Ex parte Auditor of Public Accounts, 609 S.W.2d 682 (Ky. 1980), the Court made it clear that To answer these questions it is first necessary to analyze the re- the judicial branch has the sole power and responsibility for gov- porting statutes found in KRS Chapter 209, “Protection of Adults.” erning the activities of lawyers. Turner v. Kentucky Bar Association, Kentucky’s reporting rules are for the protection of vulnerable 980 S.W.2d 560 (1998). adults – those, who, “because of mental or physical dysfunctioning, are unable to carry out the activity of daily living, or protect To the contrary is Chambers v. Stengel, 37 S.W.3d 741 (Ky. 2001), themselves from neglect, exploitation or a hazardous or abusive certifying Kentucky law to the federal court of appeals. In Cham- situation without assistance from others, and who may be in need bers, the Kentucky court opined that a statute providing criminal of protective services.” KRS 209.020. sanctions for attorneys who solicit accident or disaster victims within 30 days of the disaster or accident does not impinge on the The nature of the mandatory reporting statute requires that any constitutional power of the judiciary. The court pointed out that person “having reasonable cause to suspect that an adult has suf- the judicial branch has the power to discipline lawyers but does fered abuse, neglect or exploitation” to file a report with the Cab- not have the power to criminalize attorney conduct. The General inet for Health and Family Services. KRS 209.030. The Kentucky Assembly has the power and duty to create criminal laws. statute does not contain an exception for attorneys. The Committee recognizes that the knowing or wanton failure to What is “neglect” under the statute? KRS 209.020 (16) defines report adult abuse, neglect, or exploitation is a Class B misde- neglect as an adult who, because of physical or mental dysfunc- meanor. KRS 209.990(1); however, requiring attorneys to reveal tioning, in is unable to perform or obtain for himself or herself confidential information to make such a report may undermine the goods and services necessary to maintain health and welfare, the attorney’s duties of confidentiality and loyalty, cutting to the or the deprivation by someone else of services necessary for the core of the attorney client relationship. Rule 1.6, Comment (1). health and welfare of the adult. As many elderly people might fit It is the opinion of the Committee that an attorney may ethically this definition there are some definitive signs which may evidence choose not to make a report of confidential client information a finding that a person is suffering from neglect; for example, they of abuse, neglect or exploitation unless, of course, the Kentucky Supreme Court holds otherwise.

38 | JANUARY/FEBRUARY 2017 In E-360 (1993), the Committee addressed a similar question – whether an attorney is required to report child abuse by a client. The Comments to Rule 1.14 elaborate on the protective mea- Unlike KRS 209.020, the reporting statute (KRS 620.030) rec- sures an attorney might consider that would best protect the cli- ognizes the attorney-client evidentiary privilege as a ground for ent, keeping in mind the “goal of intruding into the client’s de- not making a report. In E-360, the Committee reasoned that the cision-making autonomy to the least extent feasible.” Comment exception might have been intended to protect all confidential in- [6] to Rule 1.14. formation, not just information falling within the attorney–client privilege. Based on this reasoning, the Committee concluded that Comment [6] to Rule 1.14 suggests that “diminished capacity” is the statute did not conflict with the Rules of Professional Con- a flexible concept including many factors – for example a client’s duct. ability to articulate a rationale for a decision, whether the decision is in accord with the client’s long-term goals, whether the decision In passing, the Committee alluded to what is the core of this is fair and rational, etc. opinion – that a statute interpreted to require lawyers to violate the ethical duty of confidentiality to report abuse, neglect or ex- An attorney consulting another professional to determine if the ploitation to or by their clients violates Sections 27 and 28 of the client has diminished capacity should be aware that mandatory Kentucky Constitution (the separation of powers provisions). It is reporting duties of the other professional might result in reporting significant that Rule 1.6(b)(4) is permissive; the rule permits, but that is not in the client’s best interest. does not require, lawyers to reveal client confidential information to comply with “other law.” The reporting statute speaks also of “physical dysfunctioning”, a term which does not correspond to “diminished capacity” (the In the context of child abuse, the Indiana Ethics Committee Rule 14 term). It is the opinion of the Committee that an attor- reached a similar result: a lawyer’s duty of loyalty and confidential- ney with a physically dysfunctional client may reveal client con- ity trumps a statutory duty to report abuse. Indiana Op-2 (2015). fidential information to protect the client from abuse, neglect or exploitation. The next question is whether an attorneymay report abuse, neglect or exploitation over the client’s objection. Rule 1.6 (b)(1) In trying to protect a mentally or physically impaired client from permits an attorney to reveal client confidential information if the abuse, neglect or exploitation, an attorney has many options: for lawyer reasonably believes it is necessary to prevent death or seri- example, contacting family members, seeking a change in living ous bodily harm. More broadly, Rule 1.6(b)(4) permits a lawyer conditions, a change in bank account, the appointment or removal to reveal confidential client information to comply with other law; of a trustee or guardian, or by reporting the situation to the Cab- in this context the “other law” is the reporting statute. Disclosure inet. in reliance on the reporting statute is limited to what the lawyer reasonably believes is necessary to protect the person, whether a If the client is the one who is or has been abusing, neglecting or client or a person abused by a fiduciary client, from abuse, neglect exploiting an impaired person: If an attorney represents a fidu- or exploitation. Before revealing confidential information, the ciary who is abusing, neglecting or exploiting a mentally or phys- lawyer should fully investigate the underlying facts. ically impaired person, the attorney should counsel the fiduciary client about the requirements of Kentucky law, as discussed above, If the client is the one who is or has been abused, neglected or and the need to stop the abuse, neglect, or exploitation; further, exploited: Rule 1.14(c) states that an attorney is impliedly autho- to advise the client of the need to rectify any past harm. If the rized to reveal client confidential information if necessary to pro- fiduciary refuses to cooperate the attorney may reveal confidential tect a mentally impaired client. In most cases in which reporting information, including information about past abuse, if necessary is appropriate, the client suffers from mental impairment that ad- to protect the impaired person from further abuse. In so doing the versely affects the client’s decision making authority (diminished attorney would rely on Rule 1.6(b)(4), which allows an attorney capacity). As a practical matter, mental impairment (the Rule 1.14 to reveal client information to comply with law (in this case the term) may be equated with “mental dysfunctioning” (the KRS 209. reporting statute). However, if the attorney represents a client in a 020 term) although the latter term appears to go beyond decision criminal case, the attorney may not disclose confidential informa- making capacity. Rule 1.14(b) provides that, tion about the client’s past activities without the client’s consent. When the lawyer reasonably believes that the client In addition to advising the fiduciary client of the requirements of has diminished capacity, is at risk of substantial phys- law, the attorney may seek to withdraw from the representation. ical, financial or other harm unless action is taken and Rule 1.16(b)(2). cannot adequately act in the client’s own interests, the lawyer may take reasonably necessary protective ac- Note to Reader tion, including consulting with individuals or entities This ethics opinion has been formally adopted by the Board of Gover- that have the ability to take action to protect the client nors of the Kentucky Bar Association under the provisions of Kentucky and, in appropriate cases, seeking the appointment of Supreme Court Rule 3.530. This Rule provides that formal opinions a guardian or conservator. are advisory only.

BENCH & BAR | 39 BAR NEWS

CERTIFICATION OF CANVASSING BOARD FOR BAR MEMBERS, SUPREME COURT AND COURT OF APPEALS NOMINATING COMMISSION, INDIVIDUAL CIRCUITS AND INDIVIDUAL DISTRICTS

Pursuant to the provisions of Section 118 of the Kentucky Constitution, SCR 7.010 and SCR 7.030, a duly appointed canvassing board, on November 9 and 10, 2016, met in the Office of the Executive Director of the Kentucky Bar Association, and tabulated ballots for the election of Bar members to the Judicial Nominating Commissions for the Supreme Court and Court of Appeals, 57 Judicial Circuits and ten (10) Judicial Districts. Pursuant to the provisions of SCR 7.030(11), the following candidates for each designated commission received the indicated number of votes: CANDIDATES NO. OF VOTES Charles E. English, Jr., 1761 Pinehurst, Bowling Green, KY 1,305 Richard W. Hay, 2417 Hwy 39, Somerset, KY 879 Gary C. Johnson, 267 W Chloe Ridge Rd, Pikeville, KY 626 George E. Long, II, 120 Country Trace Ln, Benton, KY 395 Susan D. Phillips, 4000 Napanee Rd, Louisville, KY 907 Debra S. Pleatman, 2916 Vista Ct, Villa Hills, KY 351 Shannon “A.J.” Singleton, 1109 Fincastle Rd, Lexington, KY 381

1ST JUDICIAL CIRCUIT 11TH JUDICIAL CIRCUIT Amy Harper-Hogancamp, 1012 State Route 1301, Clinton, KY 3 Danny P. Butler, 599 Hyde Park, Campbellsville, KY 12 James D. Paitsel, Jr., 302 Court Dr, Fulton, KY 3 Theodore H. Lavit, 509 Park Dr, Lebanon, KY 12 2ND JUDICIAL CIRCUIT 12TH JUDICIAL CIRCUIT Craig W. Housman, 7515 Blandville Rd, Paducah, KY 45 James L. Theiss, 5513 W Hwy 524, Westport, KY 43 Van Franklin Sims, 6418 Barberry Dr, Paducah, KY 45 David L. Vish, 7907 Rose Island Rd, Prospect, KY 43 3RD JUDICIAL CIRCUIT 13TH JUDICIAL CIRCUIT Jack N. Lackey, Jr., 1604 Green Leaf Ct, Hopkinsville, KY 19 James S. Sanders, 124 Pin Oak, Lancaster, KY 12 4TH JUDICIAL CIRCUIT David William Thomas, 1260 Old Railroad Rd, Nicholasville, KY 12 John Keith Cartwright, 90 Shoal Creek Dr, Madisonville, KY 19 14TH JUDICIAL CIRCUIT Charles G. Franklin, II, 1350 Calumet Ln, Madisonville, KY 19 Joseph Morrison Hoffman, 2398 Lillards Ferry Rd, Versailles, KY 37 5TH JUDICIAL CIRCUIT Richard M. Rawdon, Jr., 847 Duvall Station Rd, Georgetown, KY 37 William S. Greenwell, 403 Cherry St, Marion, KY 9 15TH JUDICIAL CIRCUIT 6TH JUDICIAL CIRCUIT Steven N. Howe, 2960 Greenville Rd, Dry Ridge, KY 11 John W. Stevenson, 4157 Tanbark Place, Owensboro, KY 47 16TH JUDICIAL CIRCUIT R. Michael Sullivan, 2108 N. Stratford Dr, Owensboro, KY 47 David E. Davidson, 408 Wallace Ave, Covington, KY 99 7TH JUDICIAL CIRCUIT James Moberly West, 3269 Serenity Way, Edgewood, KY 99 Fred Garland Greene, 125 DaleView Circle, Russellville, KY 9 17TH JUDICIAL CIRCUIT Alicia Carol Johnson, 7779 Duncan Ridge Rd, Lewisburg, KY 9 J. David Bender, 11 Thomas Pointe Dr, Fort Thomas, KY 48 8TH JUDICIAL CIRCUIT Timothy E. Schneider, 215 Mulberry Ct, Fort Thomas, KY 58 Michael Thomas Sutton, 733 Park Ave, Newport, KY 32 Shawn R. Alcott, 1340 College St, Bowling Green, KY 80 Michael A. Owsley, 711 Wedgewood Circle, Bowling Green, KY 80 18TH JUDICIAL CIRCUIT 9TH JUDICIAL CIRCUIT Sam W. Arnold III, 103 Court St, Cynthiana, KY 11 Charles Donald Wells, 11275 Sugarmill Dr, Alexandria, KY 11 Robert Keith Bond, 200 Woods Bend Dr, Elizabethtown, KY 26 Jerry M. Coleman, 420 Briarwood Cr, Elizabethtown, KY 26 19TH JUDICIAL CIRCUIT 10TH JUDICIAL CIRCUIT Dale L. Horner, Jr., 127 W 2nd St, Apt 2A, Maysville, KY 12 Marvin W. Suit, 440 Fountain Ave, Flemingsburg, KY 21 Matthew E. Hite, 211 S. Charity Heights, Bardstown, KY 20 Donald L. Wood, Jr., 9647 Mason Lewis Rd, Maysville, KY 17 Patrick A. Ross, 315 Crestview Dr, Horse Cave, KY 20

40 | JANUARY/FEBRUARY 2017 20TH JUDICIAL CIRCUIT 34TH JUDICIAL CIRCUIT John R. McGinnis, 608 Water Front St, Greenup, KY 17 Brien G. Freeman, 130 Alsip Trail, Corbin, KY 15 Lloyd E. Spear, 4718 W KY 9, Vanceburg, KY 17 David S. Hoskins, 1865 Bacon Ave, Corbin, KY 15 21ST JUDICIAL CIRCUIT 35TH JUDICIAL CIRCUIT Michael R. Campbell, 979 Starshader Ln, Olympia, KY 23 Rhonda J. Blackburn, 416 Sycamore Rd, Pikeville, KY 31 Truman L. Dehner, 2135 Rice Rd, Morehead, KY 19 Donald Howard Combs, 245 E. Cedar Dr, Pikeville, KY 31 606 Brookmede Dr, Mount Sterling, KY M. Benjamin Shields, 22 36TH JUDICIAL CIRCUIT 22ND JUDICIAL CIRCUIT Randy A. Campbell, PO Box 1249, Hindman, KY 5 Kevin G. Henry, 3391 Ledford Ct, Lexington, KY 287 Graham T. Martin, PO Box 790, Salyersville, KY 5 4857 Chelmsbury Ln, Lexington KY Martha A. Rosenberg, 287 37TH JUDICIAL CIRCUIT 23RD JUDICIAL CIRCUIT Robert W. Miller, PO Box 357, Grayson, KY 9 Thomas K. Hall, III,2320 Long Branch Rd, Beattyville, KY 1 William H. Wilhoit, 374 Riverwood Dr, Grayson, KY 9 498 Charlie Turner Rd, Booneville, KY Wade L. Rasner, 1 38TH JUDICIAL CIRCUIT 24TH JUDICIAL CIRCUIT Deborah Lee Bolt, 142 Combs, Hartford, KY 13 John C. Kirk, 664 Kentucky Route 321 N, Paintsville, KY 10 Abram V. Conway, 122 Victoria Way, Hartford, KY 13 249 Court St, Paintsville, KY Roger Lee Massengale, 10 39TH JUDICIAL CIRCUIT 25TH JUDICIAL CIRCUIT Patrick E. O’Neill, 968 Lakeside Dr, Jackson, KY 14 James T Gilbert, 254 Clairmont Dr, Richmond, KY 43 Gary C. Rose, 1230 KY 1010 E, Hazel Green, KY 14 429 Lynnway Dr, Winchester, KY John H. Rompf, Jr., 43 40TH JUDICIAL CIRCUIT 26TH JUDICIAL CIRCUIT Catherine Brown Capps, 88 McGee Branch Rd, Burkesville, KY 11 Johnnie L. Turner, 76 Lisenbee Rd, Baxter, KY 6 Nicholas A. Carter, 123 Orchard Ln, Tompkinsville, KY 11 118 N 1st St, Harlan, KY Kellie D. Wilson-Lee, 6 41ST JUDICIAL CIRCUIT 27TH JUDICIAL CIRCUIT Phillip Lewis, 2145 Greasy Creek Rd, Hyden, KY 13 John E. Anderson, PO Box 250, Barbourville, KY 36 Yancey L. White, 2281 S Hwy 421, Manchester, KY 13 83 Wood Edge Ct, London, KY Brian C. House, 36 42ND JUDICIAL CIRCUIT 28TH JUDICIAL CIRCUIT George E. Long, II, 120 Country Trace, Benton, KY 18 Robert R. Baker, 400 Club Side Dr, Stanford, KY 30 John Patton Rall, 1704 Plainview Dr, Murray, KY 18 3500 Woodhaven Dr, Somerset, KY Mark D. Knight, 30 43RD JUDICIAL CIRCUIT 29TH JUDICIAL CIRCUIT Thomas W. Davis, 506 Wilderness Rd, Glasgow, KY 13 204 Public Sq, Columbia, KY Laura H. Harris, 2 44TH JUDICIAL CIRCUIT David F. McAnelly, 134 Griffin St, Liberty, KY 2 Blake S. Bowling, 116 N Petersborough Ave, Middlesboro, KY 9 30TH JUDICIAL CIRCUIT Jennifer F. Nagle, 815 Cirencester Ave, Middlesboro, KY 9 6300 Hunting Harbor Rd, Prospect, KY Martin E. Johnstone, 758 45TH JUDICIAL CIRCUIT John R. McCall, 1911 Mockingbird Bluff Ln, Louisville, KY 395 Aaron J. Silletto, 4100 Cliffs Edge Ln, Louisville, KY 168 Donna Dant, 596 Brookschoolhouse Rd, Calhoun, KY 7 Diana L. Skaggs, 623 W Main St Ste 100, Louisville, KY 342 Cary Edward Davis, 118 O’Bryan St, Greenville, KY 7 31ST JUDICIAL CIRCUIT 46TH JUDICIAL CIRCUIT Clyde Combs, Jr., 643 KY Route 122, Martin, KY 20 Thomas C. Brite, 310 E. 3rd St, Hardinsburg, KY 25 Jimmy C. Webb, 10 N Circle Dr, Prestonsburg, KY 10 Alec G. Stone, 469 E Broadway St, Brandenburg, KY 17 David B. Vickery, 791 Patterson Rd, Clarkson, KY 12 32ND JUDICIAL CIRCUIT 47TH JUDICIAL CIRCUIT Michael J. Curtis, 2323 Hillcrest Rd, Ashland, KY 17 James H. Moore, III, 2725 Irish Oaks Dr, Ashland, KY 17 Matthew Thomas Butler, 30 Goodwater St, Jenkins, KY 8 Peyton F. Reynolds, 239 Golf Course Ln, Whitesburg, KY 8 33RD JUDICIAL CIRCUIT Randall Scott May, 43 Adams Ridge Rd, Hazard, KY 17 Frank C. Medaris, Jr., 509 Skyline Dr, Hazard, KY 26 CONTINUED ON PAGE 42 Justin Wade Noble, 207 Cliff View Ln, Hazard, KY 15

BENCH & BAR | 41 BAR NEWS

48TH JUDICIAL CIRCUIT John B. Baughman, 5 Weehawken Ln, Frankfort, KY 56 1ST JUDICIAL DISTRICT Robert W. Kellerman, 50 Main Chance Ct, Frankfort, KY 56 Amy Harper-Hogancamp, 1012 State Route 1301, Clinton, KY 2 49TH JUDICIAL CIRCUIT James D. Paitsel, Jr., 302 Court Dr, Fulton, KY 2 Timothy John Crocker, 250 Saddler Fork Rd, Franklin, KY 9 10TH JUDICIAL DISTRICT James S. Secrest, Jr., 7243 New Glasgow Rd, Scottsville, KY 9 Patrick A. Ross, 315 Crestview Dr, Horse Cave, KY 14 50TH JUDICIAL CIRCUIT Damon R. Talley, 168 Greensburg Rd, Hodgenville, KY 14 Deedra Benthall, 1096 Argyll Dr, Danville, KY 13 13TH JUDICIAL DISTRICT Charles David Patrick, 836 Watershore Dr, Harrodsburg, KY 13 James S. Sanders, 124 Pin Oak, Lancaster, KY 20 51ST JUDICIAL CIRCUIT David William Thomas, 1260 Old Railroad Rd, Nicholasville, KY 20 Sandra D. Freeburger, 101 1st St, Henderson, KY 22 28TH JUDICIAL DISTRICT J. Christopher Hopgood, 311 Rudy Ave, Henderson, KY 22 Melinda G. Dalton, 128 Woodland Dr, Somerset, KY 25 52ND JUDICIAL CIRCUIT Mark D. Knight, 3500 Woodhaven Dr, Somerset, KY 25 Charles S. Foster, 1614 The Lane, Murray, KY 9 40TH JUDICIAL DISTRICT 53RD JUDICIAL CIRCUIT Robert L. Bertram, 366 Cardinal Ln, Jamestown, KY 17 Joel Randolph Smith, 4612 E. Hwy 80, Russell Springs, KY 16 Tiffany J. Bowman, 538 Shumaker Dr, Simpsonville, KY 24 Lance W. Turner, 684 Hwy 1720, Monticello, KY 11 Thomas M. Jones, 2110 Graefenburg Rd, Lawrenceburg, KY 19 Gregg Y. Neal, 48 Smithfield Rd, Shelbyville, KY 29 42ND JUDICIAL DISTRICT 54TH JUDICIAL CIRCUIT Dennis J. Courtney, 603 Lee St, Murray, KY 12 Michael M. Pitman, 109 N. 14th St, Murray, KY 12 Jeffrey R. Aylor,9736 Manassas Dr, Florence, KY 45 Harry David Wallace, 1289 Eads Rd, Verona, KY 45 57TH JUDICIAL DISTRICT 55TH JUDICIAL CIRCUIT Michael E. Coen, 108 W Flaget St, Bardstown, KY 11 Matthew E. Hite, 211 S Charity Heights, Bardstown, KY 11 Mark E. Edison, 370 Cliffside Dr, Shepherdsville, KY 7 Joseph J. Wantland, 724 Twelve Oaks Dr, Mount Washington, KY 7 58TH JUDICIAL DISTRICT 56TH JUDICIAL CIRCUIT George M. Carter, 1704 Main, Benton, KY 10 Robert L. Prince, 51 Briggadoon Ln, Benton, KY 10 Stuart Curtis Peek, 1939 Buchanan Ln, Grand Rivers, KY 12 Marc A. Wells, PO Box 644, Princeton, KY 12 59TH JUDICIAL DISTRICT 57TH JUDICIAL CIRCUIT Mark S. Medlin, 750 Kentucky Ave, Kevil, KY 3 Daniel C. Thomas, 107 Lake Dr, Barlow, KY 3 Robert L. Bertram, 366 Cardinal Ln, Jamestown, KY 14 Joel Randolph Smith, 4612 E. Hwy 80, Russell Springs, KY 12 60TH JUDICIAL DISTRICT Lance W. Turner, 684 Hwy 1720, Monticello, KY 10 Catherine Brown Capps, 88 McGee Branch Rd, Burkesville, KY 4 Nicholas A. Carter, 123 Orchard Ln, Tompkinsville, KY 4

Certified as true and correct Election Results Pursuant to SCR 7.030(11), this 10th Day of November, 2016.

/s/ Karen Cobb Chairman

cc: Laurie Rachel Kidd Dudgeon, Administrative Office of the Courts

42 | JANUARY/FEBRUARY 2017 BAR NEWS FEBRUARY 2017 KENTUCKY BAR APPLICANTS

Following is a list of applicants who have applied to take the Feb. 21 & 22, 2017, Kentucky Bar Examination.

NOTE: This list is current as of Dec.12, 2016. Any applications filed after this date will not be included on this list. Wesley Reese Abrams Allyson Michelle Fitzsimmons Andrew Dean Leonard Samuel Owen Ronald Jack Andrew Absher III Erin Elizabeth Fleischmann Janet Andrea Lewis Kierston Eastham Rosen Abdullah Mohammad Ahmad Kenneth Andrew Foisy Jessica Christine Lindner Michael Alexander Russell Olivia Flora Amlung Mason Holliday Forrest Raeane Victoria Lionetti Elisio Peixinho Sapata Paula Anderson Thomas George French Adrianna Michelle Long Jessica Meghan Sapp Janet K. Arnott Kurtis Matthew Frizzell MacKenzie Wallace Longoria Sabina Sawyers Mariah Jayne Aubrey Jonathon Maxwell Fuller Zachary Michael Lotspeich Laura Marie Scott Dean Alexander Bacovin Traci Leeann Gaddie Lindsey Marie MacGregor Samantha Jo Scott Jessica Lea Ramey Lewis Baker Rebecca Clare Garth Justin Madden Nathan Siegmann Shaver Kevin Michael Bandy Lauren Elizabeth Gibson Jeremiah Levi Mann Rachelle Ann Papilla Sico Paige Elizabeth Barhorst Yvette Whitmer Girvin Robert Nathan Martin Anna Claire Skinner Julie Barr Victor James Glasper Phillip Christopher Masengill II Sloane Morgan Skinner Justin Tyler Baxter Kimberly Kostas Glass Charles Daniel Matlock Jonathon Casey Smith John Johnson Beasley II Lindsey Catherine Goetz Christina Thomas Mazaheri Katherine Estelle Son Meredith Malone Berge Ryan Gregory Goff Christopher Joseph McCaughey Clare Elizabeth Souleyrette James Bolton Bevins II Devon Elise Golden Maxwell Weston McCrite Joshua Ray Spears Shelbie Ann Black John Arthur Gray Megan Claire McDonald Sayde Elizabeth Spears Elizabeth Meyers Boeglen Ashley Rochelle Gray-Ziba Jenna Rae McNeal Keesha Deann Stacy John Paul Boitnott Stuart Allen Green Emily Paige Meador Brynn Elizabeth Stylinski Courtney French Bourne Nicholas Robert Gregg Kala Ann Means Laura Lee Tapp Matthew Alan Brashear Mary Virginia Grigsby Henrietta Meyman Beth Ann Taylor Stephanie Marshall Bridges Alexander Steven Gualdoni Kyle David Michael Mary Edwards Taylor Zachary Hunter Brown Kevin Thomas Guilfoyle Nicole Erica Miller Kirk Christopher Terrell George Alexander Budd V Juan Pablo Guzman Marcus Stephen Minix Jr. Chelsea Thompson Gregory Trenton Burns Melissa Blair Harp Nathaniel Lucas Mitchell Hannah Rae Truxell Krista Lynn Burton Michael Dean Hasty Nick Payam Modarressi Levi Zane Turner Sunnye Jo Bush-Sawtelle Margaret Elizabeth Hayes Catherine Nicole Moran Michael Tyrikos Johnna K. Carey Lacey Davis Hicks Walter Lee Morris Jr. Verna Young Ung Kelsey Brooke Caudill Melissa Anne Higgins Mary Joanne Mounts Buddy Joseph Vancleave Amanda Leigh Cecil Amanda Stiltner Hilbert Julia Elizabeth Neidhardt Grisel I. Vilchez Ismaila Ceesay Joseph Kenton Hill Katee Elizabeth Neltner David Leslie Vish Jr. Eva Michelle Cheatham Leanna Homandberg Robert Joseph Nemes Justin Keith Walker Kirsten Renae Clancy Emily Anne Hubbard Samuel Raymond Nicholson Thomas Christopher Walsh Ashley Davis Clay John Greer Hunt Anna Plaia Noakes Heidi Lynn Weatherly Juliana Bronwen Coffey Mary Caroline Hyatt Randall Guy Noakes Jr. Brent Michael Webster Frank Michael Cogliano Mark Christopher Ingram Charles Joseph Otten Lori Frey Wells Andrew Lawrence Coleman Elizabeth Theresa Jacobs Alina Pagani Joseph Taylor Whitaker Chancie Lea Coleman Alisa Waldmann James Brandy Marie Phillips Q. Douglas Whitaker Joseph Daniel Coleman III Nabeel Rushdi Jawahir Chelsea Joyce Ann Pille Arthur Elverson White III Brooke Nicole Cooper Elliot Don Jeffery Jarrod Ross Portwood Tyler Jesse Wicker Shawn Nicholas Crawford John Baxter Jessie Joseph Michael Portwood Brandon Kurt Wilder Todd N. Crescitelli David Ross Johnson Jessica Leigh Powell Ellis Wilkerson Wilder Thomas Howard Crush Jr. Deron Lucas Johnson Joseph Corey Price Charles Alexander Willson Rachel Marie Cunningham Ellen Nicole Johnson Steven Lawrence Rayburn Nicholas Alan Wilson Thomas Gregory Cybriwsky Ethan Frederick Johnson Britney Westerfield Reed Nicholaus Page Wilson Jamir Anree Davis Andrew Lewis Kenney Colin Bachmeyer Reilly Gladys Elaine Wilson-Reddy Lee DeForest Cody Edward Kirby Owen Arthur Reynolds Meagan Suzanne Wolfe Laura Ellen Edelman Peter James Klear Neil Brian Riley Jr. Demarcus Le’ Shawn Woods Herbert Milton Eggers IV Christopher Carroll Kloeker Joseph Paul Rion Kiboni Ann Yarling Kurt Michael Egner Joseph Martin Kramer Sean Michael Riopelle Ashley Christine Eklund Jonathan Lance Kurz Stephanie Renee Rivas Kaitlyn Stillwell Embry Marvin Bryan Lafferty Terra Racqual Rivera Aaron Farshad Fallahi Christopher Stephen Langefeld William Jacob Roberts Colleen Rose Fausz Meredith Renee Lawrence Olivia G. Robinson Jesse Thomas Feinsod Kathleen Minor LeBlond Anthony Dominick Romeo

BENCH & BAR | 43 BAR NEWS

(2) Additional costs will be imposed if required by the Character and Fitness Committee in conducting the background investigation necessary for certification of eligibility. IN RE: These additional costs are incurred when circumstances require a more intensive background investigation. The cost of ORDER AMENDING any record, document or inquiry concerning an application or RULES OF THE SUPREME COURT (SCR) transcript of record as a result of a hearing shall be paid by the applicant. Any additional expenses incurred must be paid pri- 2016-11 or to the release of any examination results for the applicant.

(3) Upon notice from the Kentucky Office of Bar Ad- missions, the Deans of each law school shall file individual I. SCR 2.015 Professional Responsibility Examinations certifications attesting to each applicant’s character and fit- (This rule shall be effective July 1, 2017) ness and date of graduation. The Dean’s certification shall be specific as to each applicant and on a form provided by the SCR 2.015 shall read: Kentucky Office of Bar Admissions.

(1) No person shall be eligible for admission to the (4) Any applicant whose application to the Bar of an- Kentucky Bar until that person has first passed the Multi- other state has been refused for any reason is ineligible to take state Professional Responsibility Examination (MPRE) ad- the Bar examination in this state unless the refusal was based ministered by the National Conference of Bar Examiners by upon a failure to pass the Bar examination in that state. attaining a scaled score thereon of at least 80. (5) Any applicant who is a member of the bar in an- (2) No person shall sit for the Bar Examination ad- other jurisdiction must produce a certificate of good stand- ministered under SCR 2.080, 3.500 or 3.510 without first ing with the application. The applicant must also produce passing the Multi-state Professional Responsibility Exam- a statement from the disciplinary board of that jurisdiction ination (MPRE) administered by the National Conference indicating whether any complaints have been filed against of Bar Examiners by attaining a scaled score thereon of at the applicant and their disposition. Any applicant who has a least 80. complaint(s) pending, is under disciplinary action, suspended, or any other action that would prohibit the practice of law as a member of the bar in another jurisdiction is not eligible II. SCR 2.022 Application for Admission by Examination for admission in Kentucky. Any applicant who is disbarred in (This rule shall be effective February 1, 2017) another jurisdiction is not eligible for admission in Kentucky.

SCR 2.022 shall read: (6) An applicant who wishes to withdraw from the Bar examination must notify the Kentucky Office of Bar Ad- The application for Admission by Examination shall missions, in writing, not later than 5 days prior to the ex- be on a verified form approved by the Board and may not be amination date or have a verified excuse, otherwise, the Bar filed more than 90 days before the filing deadline outlined examination fee of $175.00 shall be forfeited. below. (7) No part of any fees or expenses as stated in the (1) Every person who intends to apply for admission paragraphs above shall be refundable. to the Kentucky Bar by examination must electronically submit a complete, verified Application for Admission by Exam- ination form and pay the required fee to the Kentucky Office III. SCR 2.080(1) Bar Examinations of Bar Admissions. An application must be complete at the (This subsection shall become effective with time of its filing, including a properly executed Authorization the administration of the July 2017 Bar Ex- & Release form; and must include the following fee: amination, scheduled for July 25-26, 2017)

(a) Applicants not previously admitted to practice law- Subsection (1) to SCR 2.080 shall read: $625.00 (cashier’s or certified check or money order) (b) Attorney applicants admitted in another jurisdic- (1) The Board of Bar Examiners shall examine such tion-$775.00 (cashier’s or certified check or money order) applicants as are certified to it as provided in Rule 2.040. The examination shall cover a period of two days and may cover The filing deadline is October 1 for the February Bar exam- the following subjects: ination and February 1 for the July Bar examination.

44 | JANUARY/FEBRUARY 2017 (a) Contracts, including sales and secured trans- IV. SCR 2.080(2) Bar Examinations actions (This subsection shall become effective with (b) Constitutional Law the administration of the July 2019 Bar Ex- (c) Business Entities (corporations, partnerships amination, scheduled for July 30-31, 2019) and/or others) (d) Criminal Law and Procedure Subsection (2) to SCR 2.080 shall read: (e) Civil Procedure (f ) Family Law (2) The Board may cover the subject matter in any (g) Property (real and/or personal) manner that it sees fit, including or not including essay ex- (h) Torts aminations prepared by the Board, and any of the following (i) Estates (wills and/or trusts) examinations prepared by the National Conference of Bar (j) Evidence Examiners: Multi-state Essay Examinations (MEE) and the (k) Such other subjects as the Board may select Multi-state Bar Examination (MBE). Beginning with the from among questions proposed by the National administration of the July 2019 Bar Examination, the Board Conference of Bar Examiners. may also include item(s) from the Multi-state Performance Test (MPT), prepared by the National Conference of Bar Prior to or at the time of the examination, each appli- Examiners. cant shall certify that he or she has successfully completed a course of study in law school in the subject of ethics, and that All sitting. All concur. if admitted to practice, the applicant will adhere to the Code of Ethics prescribed by the Supreme Court. The Character ENTERED: December 2016. and Fitness Committee of the Kentucky Office of Bar -Ad missions may, in exceptional cases, waive the requirement that an applicant have successfully completed a course of study in law school in the subject of ethics.

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BENCH & BAR | 45 CONTINUING LEGAL EDUCATION WRITTEN MATERIALS IT’S NOT CLE WITHOUT THEM BY: CARL N. FRAZIER

he Continuing Legal Education Commission occasionally receives requests to ac- credit educational programs for which no written materials are made available to Tattendees. Regardless of the quality or usefulness of these programs, they do not meet the requirements for a qualifying continuing legal education activity. Consequently, the Commission must deny such requests for accreditation. ABOUT THE AUTHOR The standards for a qualifying CLE activity are set out in SCR 3.650(2). The rule requires, CARL FRAZIER among other things, that “[t]horough, high-quality, readable, timely, useful and carefully is a member in Stoll Kee- prepared written materials must be made available to all participants at or before the non Ogden’s Lexington office. A member time the activity is presented. A brief outline without citations or explanatory notations of the business litigation and tort, trial & is not sufficient.” SCR 3.650(2)(h). This requirement is mandatory. Id. The Commission insurance services practices, he counsels is required to deny accreditation to programs that do not meet the requisite standard for and advocates for individuals and busi- written materials. Kentucky’s rule is similar to the American Bar Association Model nesses with disputes in state and federal Rule for Continuing Legal Education. The ABA rule provides that “before, at, or during courts and before regulatory agencies. the course or activity, each attendee must be provided with course or activity materials, Frazier is currently serving as chair of the either print or electronic, of a quality and quantity which indicate that adequate time has 2017 Kentucky Bar Association (KBA) been devoted to their preparation and that they will be of value to the registrants in their Diversity and Inclusion Summit. He pre- practices.” See ABA Model Rule for Continuing Legal Education at § 7(d), available at viously served as co-chair of the KBA Di- http://www.americanbar.org/content/dam/aba/administrative/cle/aba_model_rule_cle. versity Working Group, which promotes authcheckdam.pdf. diversity and inclusion within the legal profession, on the KBA Board of Gover- At least two laudable goals are served by the requirement for written materials. First, the nors and its Executive Committee, and as obligation helps ensure that a degree of thoughtfulness and preparation will go into the chair of the KBA Young Lawyers Division. planning and presentation of the program. Second, the obligation means that attendees Frazier also served as CLE programming will have reference materials during and after the program. This helps serve our members committee chair for the 2016 Kentucky whose retention is reinforced by reading and allows attendees to refer back to key points Bar Convention, which was responsible regarding the topic long after the program is complete. for planning over 50 seminars at the annual convention. Frazier received his B.A. So what type of written materials is acceptable? The Supreme Court has identified six from Transylvania University in 2004 and criteria that minimally acceptable materials must meet: thorough, high-quality, readable, his J. D. from the University of Kentucky timely, useful, and carefully prepared. SCR 3.650(2)(h). The Commission considers ad- College of Law in 2007. herence to these criteria in light of the specific program and its objectives. Therefore, the appearance of acceptable written materials may vary depending upon the type of program. The Supreme Court requires that where the written material is only a “brief outline without citations or explanatory notations,” accreditation for the program must be denied. Id. This means that topical outlines, general PowerPoint slides, and agendas generally will not be sufficient. Similarly, copies of authoritiese.g. ( cases, statutes, regulations) and bib- liographies—without accompanying analysis—generally will not meet the requirement.

If you are planning a CLE program and have questions about the sufficiency of written materials, please contact a member of the CLE Commission or KBA CLE staff. We are happy to discuss the written materials requirement and assist you in making sure the program is as successful as possible. REMEMBER: if the program does not provide written materials, it does not qualify for CLE.

46 | JANUARY/FEBRUARY 2017 2016-2017 CLE LOOKING FOR UPCOMING COMMISSION KBA ACCREDITED CLE EVENTS? MEMBERS LOOK NO FURTHER...CHECK OUT Jason F. Darnall HTTP://WEB.KYBAR.ORG/CLESEARCH/LISTPROGRAMS.ASPX First District Representative This easy to use search engine contains [email protected] up to date information on CLE events that have been accredited by the Kentucky Bar Frank Hampton Moore III Association Continuing Legal Education Second District Representative Commission. [email protected] Users can search by program date, name or sponsor for information about future Graham C. Trimble and past events. Program listings include sponsor contact information, approved Third District Representative CLE and ethics credits, and KBA activity codes for filling out the certificate of [email protected] attendance (Form #3).

J. Tanner Watkins Programs are approved and added in the order in which they are received. It may take Fourth District Representative up to two weeks for processing of accreditation applications. If an upcoming or past [email protected] event is not listed in the database, check with the program sponsor regarding the status of the accreditation application. Carl N. Frazier Fifth District Representative [email protected]

David B. Sloan Sixth District Representative [email protected]

W. Mitchell Hall, Jr., Chair Seventh District Representative [email protected]

INTERESTED IN ASSISTING WITH A CLE? HAVE IDEAS FOR A PROGRAM?

Contact Mary Beth Cutter, KBA Di- rector for CLE at [email protected], or any member of the Continuing Legal Education Commission. KBA TELESEMINARS Don’t want to travel for “LIVE” CLE credits? The KBA provides you a weekly series of live teleseminars that are as nearby and as convenient as your office or home phone. For the full catalog of offerings in 2017, visit http://ky.webcredenza.com/. For questions or to register over the phone, please contact Kim at [email protected] or (720) 879-4142.

BENCH & BAR | 47 CONTINUING LEGAL EDUCATION THANKTHANK YOUYOU

Each year, many individuals and organizations help make it possible for the Kentucky Bar Association to bring CLE to your area at no cost to members. Through the contributions of time, expertise, talent and funding of the following individuals and organizations, the 2016 Kentucky Law Update program was able to meet the CLE needs of over 5,000 Kentucky Bar Association members. Please accept our thanks for your support!

PROGRAM PRESENTERS PROGRAM PRESENTERS CONTINUED Judge Glenn E. Acree Carl N. Frazier Adam K. Neel Judge Jeffrey S. Taylor Jeffrey P. Alford Julia H. Gordon Charity B. Neukomm Jennifer P. Taylor Mindy Barfield Jane E. Graham Ann Newman Elizabeth O. Thomas Kathryn Swany Beck Margo L. Grubbs Jessica L. Newman Judge Kelly D. Thompson Judge William O. Bertelsman Jonathan A. Hall Judge Christopher S. Nickell Rep. Tommy Thompson Erich E. Blackburn Jenny M. Hines Deputy Chief Justice Mary C. W. Michael Troop Rhonda J. Blackburn Elaina L. Holmes Noble Patricia A. Van Houten David B. Blandford Rep. Jeffrey H. Hoover Michael J. O’Hara Judge Laurance B. VanMeter Mark R. Brengelman Zachary A. Horn Crystal L. Osborne Justice Daniel J. Venters Linda K. Breathitt David S. Hoskins Jennifer S. Overmann John F. Vincent Kelli E. Brown P. Yvette Hourigan Ned Pilersdorf Richard L. Walter Richard E. Brown Brian C. House Maegan C. Pirtle Rita J. Ward Helen G. Bukulmez Justice Lisabeth T. Hughes Jonathan K. Powers Louis I. Waterman Austin R. Byars Judge Hanley A. Ingram Steven T. Pulliam John S. Wathen Daniel J. Canon Carol L. Jackson Rev. Rhondalyn R. Randolph Sen. Robin L. Webb M. Suzanne Cassidy Judge Allison Jones Judge Gerald Reams, Jr. B. Scott West Rachael H. Chamberlain Ernest H. Jones III Daryle S. Ronning Scott Weinberg Janis E. Clark Kevin King John Rosenberg Judge J. Gregory Wehrman Judge Denise M. Clayton Clyde L. Kirtley Bradley J. Sayles Andrew Wheeler Judge Sara Walter Combs Bruce L. Kleinschmidt Madison Sewell Anna S. Whites Allison I. Connelly Angela D. Koshewa Jonathan C. Shaw John C. Whitfield Colby B. Cowherd Chief Judge Joy A. Kramer Elizabeth W. Sigler William H. Wilhoit Justice Bill Cunningham Judge Debra Hembree Lambert Rebecca A. Simpson Jason E. Williams Ann E. D’Ambruoso Carl C. Lammers Van F. Sims John M. Williams Harry L. Dadds II Margaret Young Levi Diana L. Skaggs M. Gail Wilson Melinda G. Dalton Roger W. Madden David B. Sloan Stephen D. Wilson Rebecca B. DiLoreto Jeffrey C. Mando J. Stephen Smith William L. Wilson David M. Dirr Michelle E. Mapes Mark W. Starnes Thomas Wine Judge Donna Dixon Lauren E. Marley Cara L. Stewart Emma R. Wolfe Timothy W. Dunn, Jr. Geoffrey D. Marsch Brent M. Stinnett Laurence Woods Jane W. Dyche Ryan Maxwell David C. Stratton James C. Worthington Ross T. Ewing Justin B. May Judge Janet L. Stumbo Justice Samuel T. Wright III Rev. D. Anthony Everett Melissa Rodden Mays R. Scott Stutler Robert A. Young J. Spencer Fair Judge Irvin G. Maze Wes D. Sullenger Todd A. Farmer R. Stephen McGinnis R. Michael Sullivan Douglass Farnsley Sarah K. Mills Megan Mersch Fields Chief Justice John D. Minton, Jr. Rep. Joseph M. Fischer M. Kathleen Molloy William H. Fortune Susan C. Montalvo-Gesser

48 | JANUARY/FEBRUARY 2017 PROGRAM FACILITATORS REFRESHMENT CONTRIBUTORS Mindy Barfield John David Meyer Bowling Green-Warren County Laurel County Bar Association Nolia G. Batey Frank Hampton Moore III Bar Association Marshall County Bar Matthew P. Cook Michael M. Pitman Boyd County Bar Association Association Amy D. Cubbage John M. Rosenberg Frank A. Brancato McCracken County Bar Melinda G. Dalton W. Fletcher Schrock Carter County Bar Association Association Jason F. Darnall Gary J. Sergent William G. Craig Charles E. Moore Jane W. Dyche Shane C. Sidebottom Barton D. Darell Pike County Bar Association Carl N. Frazier J. Stephen Smith Candy E. Englebert Sullivan, Mountjoy, Stainback William M. Hall, Jr. John W. Stevenson Floyd County Bar Association & Miller W. Gregory Harvey Ronald M. Sullivan Greenup County Bar Association Wilkey & Wilson, PSC Amanda L. Hill John F. Vincent Jacobs & Pfiefer, PSC Wilson, Hutchison, Poteat Megan P. Keane John S. Wathen Kentucky Wesleyan College & Littlepage David K. Koon J. Tanner Watkins WRITTEN MATERIAL AUTHORS Jay M. Matheny, Jr. Eric M. Weihe Lori J. Alvey P. Yvette Hourigan Earl M. McGuire Mark R. Brengelman Bruce L. Kleinschmidt EXHIBITORS Kelli E. Brown Michelle M. Mapes ABR Systems Group, LLC Kentucky Lawyers Assistance Helen G. Bukulmez Douglas L. McSwain Barrister Capital, LLC Program Janis E. Clark Sarah K. Mills CPC Committee Kentucky Legal Aid Harry L. Dadds II Jessica L. Newman Lawton Insurance Kentucky Research Services, Inc. Rebecca B. DiLoreto Steven T. Pulliam Lawyers Mutual Insurance National Insurance Agency, Inc. Ross T. Ewing Rebecca R. Schafer Company of Kentucky Northern Kentucky Bar William H. Fortune Diana L. Skaggs Kentucky Bar Foundation/ Association Brannah Hamilton R. Scott Stutler IOLTA Elaina L. Holmes B. Scott West

BENCH & BAR | 49 KYLAP CARL HOUSTON “HOOT” EBERT Our First Kentucky Lawyer Assistance Program Director BY: ASA P. “PETE” GULLETT, III

arl Houston “Hoot” Ebert died on with a capital “B,” was immersed in LHL, was widely respected in Oct. 14, 2016. Hoot had retired as the the professional recovery community and AA, had a passion for Cfirst executive director of Kentucky drunk and drugged lawyers, and who was the acme of humility. Lawyers Assistance Program. The Kentucky The vote was unanimous. And, Hoot made us all look brilliant. Bar Association and the lawyers of Kentucky For KYLAP to succeed, this first hire was critical . . . and Hoot should join hundreds, if not thousands, of laid the foundation for all KYLAP has now become. That is quite men and women he helped save from addic- a legacy.” tion and alcoholism as they celebrate his remarkable life. Hoot’s interview consisted of his telling us his “story” . . . a com- When I first met Hoot in 2003 I was a member of the search mon feature in AA but new to those of us on the Committee that committee to recommend the first executive director for the newly were not alcoholics/addicts. A second-generation lawyer, Hoot constituted but not yet named Lawyers Assistance Program pro- went to law school and joined the family firm. He enjoyed the posed to help Kentucky lawyers afflicted with addiction. The prob- law. He was good at it. He had success. Of course, a bit of drink- lem was not a new one, nor was the effort to assist. The Kentucky ing was common in college and law school. Young, hard-working Bar Association was a national leader in trying to help impaired lawyers needed a drink from time to time. He told his story with lawyers return to sobriety and self-respect. Years before, concerned clarity, wit, humor and self-deprecation. How exciting it was to lawyers such as Robert Houlihan, Sr., Billy Hoge, Wes Adams, meet the great Sam Cooke at a club in Northern Kentucky. How Terry Earle, Norb Bischoff, and Al Welsh formed the Lawyers “everyone” did it. How one could perform well even if hung over. Helping Lawyers (LHL) committee. The Supreme Court had But soon, clients, only a few at first, left. Success turned to failure. passed a rule giving the group official standing, and the Commit- How it took a nearly deadly episode and a visit from Lawyers tee matched volunteer lawyers in recovery with impaired lawyers Helping Lawyers to even begin a journey to recovery, and how in a largely unrecognized but highly effective process of bringing halting that journey was. How he crafted his recovery one day at impaired lawyers to recovery. Their successes were many and their a time, one meeting at a time, and kept sobriety only by giving it efforts unflagging, but with no budget and no staff their reach was away, freely, to others. How he was active in LHL, and employed necessarily limited. as a drug court administrator. The Committee recommended him and the KBA approved him and there he was. A director without During this time, the Lawyer Assistance Program movement took a program. A leader without followers. Hoot took over from there. off nationally. The American Bar Association, with a lot of help from the original pioneers of the Kentucky program, formed a The Order establishing the KYLAP program had to be fleshed Commission on Lawyer Assistance Programs, and many state bars out with rules. The committee which drafted those rules to go to formed programs which, over time, became more broad-based and the KBA and hence to the Supreme Court was made up of able expansive than the original Kentucky Lawyers Helping Lawyers and dedicated people who wanted the KBA to be better each day Committee. Kentucky Bar leaders and the Supreme Court joined than the day before. It was not intuitive to all the members that this effort to address this broader scope to include serious mental absolute confidentiality was a necessity if addicts and alcoholics health problems growing in our profession and showing up in re- were going to self-report . . . a critical goal. Hoot made that case. lated discipline cases and, worse, spikes in suicides and attempts. The Rule speaks for itself, but its goodness was not a foregone The problem of impaired lawyers was growing and was not limit- conclusion. Hoot did that. ed to alcohol and drug abuse. In response, the Court enacted the necessary rules and a funding mechanism with a dedicated dues The greatest asset the new KYLAP enjoyed was the dedicated increase so Kentucky could have a broader and more expansive body of volunteer lawyers who had for years traveled the state, program led by a full time executive director . . . something we, and going to those in desperate need, visiting them in hospitals, offic- the public we serve, desperately needed. es, homes, or little out of the way restaurants, bringing the hard truth that the lawyer could not live as they were but could live Hoot applied for the job and got it. As Commission member, LHL better, and that they could be shown how. These volunteers were veteran, and recovering lawyer Scott White remembers, “When truly harbingers of hope. Not all sufferers responded but many Hoot showed up for the interview in a suit and tie, those of us who did. The concern was that if those volunteers did not agree to serve knew his preferred dress burst out laughing . . . drawing a stern under a director, did not wish to accept new rules, then the Bar glance from our chair, Dick Clay. But, there was never a doubt that could not compel them. Hoot, with his history, his bona fides, his Hoot was the perfect choice for the job . . . he was a lawyer who “Hootness,” and his endless well of sincerity brought these folks had recovered from a hopeless situation to find success at the Bar on board the new program. And, did it so that to a person they

50 | JANUARY/FEBRUARY 2017 ABOUT THE AUTHOR jumped in with unabated enthusiasm and dedication. No one but ASA P. “PETE” GULLETT, III, is the chief Hoot could have done it. And, of course, it was Hoot, chuckling, operating officer for Lawyers Mutual In- who observed “KLAP” was not a good acronym! surance Company of Kentucky and has been with the company since 1999. Gul- Hoot was an old line alcoholic, in recovery one day at a time, by lett received his B.A. from Centre College the grace of God, but he knew the LAP movement was evolving in 1968 and his J.D. from the University into a broad-brush program to assist not just alcoholics and ad- of Kentucky College of Law in 1971. Gul- dicts, but those who gambled, or ate, or engaged in sex obsessive- lett is also on the Board of the Kentucky ly, or who had fallen into depression or other mental illness. He Lawyer Assistance Program and is currently chairing the Board. embraced that mission, and KYLAP of today is helping lawyers Gullett was the 2000 recipient of the Kentucky Bar Associa- in all of those areas, building on the foundation Hoot established. tion Justice Thomas B. Spain Award for Outstanding Service in Continuing Legal Education. He was also awarded the Ken- Hoot lead KYLAP until 2008. During his service, many calls tucky Bar Association’s Bruce K. Davis Service Award in 2008. came in for help. He found a volunteer to go, or went himself, In 2013, Gullett received the John “Jack” Keegan Award from or they both went. From, as we say, Paducah to Pikeville, from the American Bar Association in recognition of his efforts in Louisville to Bowling Green, Hoot was there. Hoot continued the support of Kentucky’s recovery program for lawyers. annual retreat for volunteers building it into a more professional conference with CLE. THANK YOU! Hoot and the KYLAP volunteers saved not just careers and pro- KYLAP wishes to extend its sincerest gratitude to Mike and tected the public, but far more importantly, families and lives. Debbie Breen for their overwhelming generosity in opening up Those words, cold on a sheet of paper, cannot begin to convey the their home and farm for the KYLAP Volunteer Retreat. Volun- meaning of the work KYLAP did and does. Passing through the teers participated in fishing, horseback riding, and other activi- lobby at the KBA Convention and stopping for a brief word with ties at the Breen Farm on Saturday, Nov. 5, 2016. That evening, Hoot, the next person one met might say, “You know, if he hadn’t they enjoyed a lovely dinner and tribute to former KYLAP reached out to me I would not be here.” One never heard about Director Hoot Ebert in the rustic elegance of the Breen Farm that from Hoot himself. And those words were truth. Celebration Barn. Thank you so much, Mike and Debbie. The task of illustrating the dedication in the face of difficulty, -mis information, suspicion, and disappointment personified by Hoot and KYLAP volunteers is beyond my capacity. But, let me recount KYLAP HOSTS LAWYERS IN one anecdote. An alcoholic lawyer, after several attempts, some RECOVERY MEETINGS IN followed by sobriety but always followed by relapse, had his last drink just before dying in the midst of a last binge. Expecting NORTHERN KENTUCKY something approximating doubt in his abilities or despair over a AND LEXINGTON perceived failure to rescue the man, I was shocked instead to hear Hoot say “[W]e all quit, only some of us die to do so.” Then I he Kentucky Lawyers Assistance Program offers weekly open realized that was the motto of the faithful servant who is going to Trecovery meetings for lawyers, law students and judges in go just as far the next time, who is never going to quit trying to Northern Kentucky and Lexington. The Northern Kentucky give away his recovery, who is going to get up earlier, go farther, Lawyers in Recovery meeting is held at 5:00 p.m., on Tuesdays and take more help with him every next time. That was the essence at 510 Washington Avenue, Newport, KY 41071. Please bring of Hoot Ebert. your own coffee.The Lexington Kentucky Lawyers in Recovery meeting is held at 7:30 a.m. on Wednesdays at the Alano Club Hoot lived and breathed recovery and tried to give it to anyone downtown, 370 East Second Street, Lexington, KY 40508. who would stand still long enough to hear it. His accounting was a bit eccentric, he did not own two items of clothing that All meetings are open to law students, lawyers and judges who matched, had as many tattoos as a sailor (which he was!), but he are already involved or who are interested in a 12-step program lived in recovery a very long time. He was a faithful servant of of recovery, including but not limited to Alcoholics Anonymous, Lawyers Helping Lawyers. He was the conduit through which Narcotics Anonymous, Overeaters Anonymous and Al-Anon. LHL flowed seamlessly into KYLAP with no loss of volume or Come meet other attorneys and network. All meetings and velocity. Let us hope Hoot is rowing his kayak in calm, peaceful contacts are confidential. water, thinking about the meeting he will attend soon, with some SCR 3.990. For additional old friends where he will probably give a great lead. information, please visit www.kylap.org, call (502) KENTUCKY LAWYER ASSISTANCE PROGRAM REST WELL, MY FRIEND. THANK YOU FOR A LIFE 564-3795, ext. 266, or WELL-LIVED. email [email protected]. KYLAP

BENCH & BAR | 51 KBF/IOLTA

KENTUCKY BAR FOUNDATION AND KENTUCKY IOLTA FUND Kentucky Bar Foundation (KBF) ANNOUNCE NEW Grant Application EXECUTIVE DIRECTOR Now Available! The Kentucky Bar Foundation’s 2017 uion L. Johnstone has been named Executive Director grant application was available as of G of the Kentucky Bar Foundation and Kentucky IOLTA January 6, 2017. To request an appli- Fund. Johnstone is an attorney from Lexington. Raised in Pa- cation, contact the KBF office or visit ducah, Johnstone received her Bachelor of Arts, summa cum kybarfoundation.org/grants. laude, from Transylvania University, where she majored in psychology and Spanish. She received her Juris Doctor, cum laude, TO BE ELIGIBLE FOR GRANT from the University of Louisville Brandeis School of Law and CONSIDERATION, APPLICANTS her Master of Science in social work from the University of MUST: Louisville Kent School of Social Work. While in law school, she was the executive editor of the University of Louisville Law Review and served on the Executive Board of the • apply by March 15, 2017 Student Bar Foundation. • be a 501(c)(3) nonprofit Prior to joining the Bar Foundation and IOLTA, Johnstone spent three years as the pro- • request funds for a gram director of the Maxwell Street Legal Clinic in Lexington. There, she provided low- program or project that cost legal services to low-income immigrants and refugees, conducted community out- has a law-related purpose reach, wrote grants, and supervised staff, interns, and volunteers. Additionally, she served and provides services in as an adjunct faculty member at the University of Kentucky College of Law, where she Kentucky taught immigration law and supervised the immigration externship. Johnstone has also All grant applications must be received worked as a forensic social worker for New York County Defender Services in New York in hard copy form at the KBF office by City and as a staff attorney for the Honorable Phillip J. Shepherd, Chief Judge of Franklin 4:30 p.m. (ET) on Wednesday, March Circuit Court in Frankfort. During law school, she interned for Immigration Legal Ser- 15, 2017. Grant recipients will be rec- vices at Catholic Charities of Louisville, Legal Aid Society of Louisville, and the Federal ognized at the KBF’s annual Fellows Community Defenders in Philadelphia. and Partners for Justice Society Lun- cheon on June 22, 2017. Johnstone succeeds prior Executive Director Amelia Martin Adams, who currently serves as a Judicial Law Clerk to the Honorable Tracey N. Wise, Chief Judge of the United States Bankruptcy Court for the Eastern District of Kentucky.

52 | JANUARY/FEBRUARY 2017 Access the Kentucky Bar Association’s CAREER CENTER at http://www.kybar.org/careercenter

JOB SEEKERS, YOUR NEXT CAREER OPPORTUNITY COULD BE CLOSER THAN YOU THINK.

• Access to high quality, relevant job postings. No more wading through postings that aren’t applicable to your expertise. • Personalized job alerts notify you of relevant job opportunities. • Career management – you have complete control over your passive or active job search. Upload multiple resumes and cover letters, add notes on employers and communicate anonymously with employers. • Anonymous resume bank Kentucky Bar resume will be displayed for employers to view EXCEPT your identity Association www.kybar.org/careercenter ready to reveal it. Phone: 1.502.564.3795 • Value-added of career coaching, resume services, education/ training, articles and advice, resume critique, resume writing and career assessment test services. POWERED BY http://www.kybar.org/careercenter KBF/IOLTA

ATTORNEYS DOING GOOD t its heart, the Kentucky Bar Foundation is about attorneys and judges helping others. To celebrate the longstanding tradition of service among members of the Kentucky Bar, the Kentucky Bar Foundation is proud to spotlight these Aattorneys “doing good” in their communities! For more information about the Foundation and its charitable work on behalf of Kentucky’s legal community or to submit pictures of your recent volunteer project for a chance to be featured in a future issue, visit www.kybarfoundation.org. VOLUNTEERING AS HIGH SCHOOL MOOT COURT JUDGES The Kentucky YMCA Youth Association conducts a high school moot court competition each year as part of the Kentucky Youth Assembly. Students work in teams of 2-3 to prepare a case for appellate oral argument, and the best students from the Kentucky competition go on to compete at the national tournament each summer. Participating students learn about the judicial process, practice oral advocacy techniques, and strengthen their communi- SUPPORTING BRAIN cation skills. Most importantly, the program encourages positive TUMOR RESEARCH civil discourse, collegiality, and an understanding of the rule of law. The success of the program depends on attorneys who are willing On Oct. 23, 2016 at Sawyer Point Park, Wade’s Brigade partici- to donate their time and expertise by judging an argument. At- pated for the third year in a row in the Walk Ahead for a Brain torneys sit in panels of two-three and score the students on their Tumor Cure 5K, which raises money for brain tumor research be- oral argument presentation. After the argument ends, attorneys ing conducted at the University of Cincinnati’s Brain Tumor Cen- have the opportunity to offer verbal feedback to the students. The ter at the Gardner Neuroscience Institute. Wade’s Brigade team WADE NAPIER students work very hard to prepare their arguments and bene- captain , an Assistant United States Attorney for fit greatly from their interaction with legal professionals. Pic- the Eastern District of Kentucky, is a 12-year brain tumor survivor tured left to right are attorneys TRAVERS MANLEY, REBEKKAH and has served for the past two years on the Brain Tumor Cen- RECHTER, RACHEL MULLOY, JENNIFER EMERSON, LINDSAY ter’s Community Advisory Council. Wade’s Brigade 2016 raised GRAY, AMBER BENOCHI, LEEANNA DOWAN, and CHRIS DA- over $6,000 for research and consisted of 83 team members. Their VIS, each of whom volunteered as judges in the 2016 competition efforts will help the Brain Tumor Center continue the fight for a along with several other attorneys. cure for the 215,000 people who are stricken with brain tumors in America every year. Mr. Napier is pictured with the team at center, seated. Also pictured is attorney TIMOTHY J. WEATHER- HOLT (fourth from the left, back row), a partner with the Louis- ville office of Fisher Phillips.

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54 | JANUARY/FEBRUARY 2017 NKBA WOMEN LAWYERS Tucked away at the end of Garrard Street in Covington is one of the oldest charities in America, the Covington Ladies Home (CLH). SECTION SUPPORTS While it may be unknown to many, it is a cherished treasure of the Women Lawyers Section (WLS) of the Northern Kentucky COVINGTON LADIES HOME Bar Association (NKBA). Founded in 1886 by one of the original Suffragettes, Ellen Battelle Dietrich, the CLH was established for many of the same reasons the women lawyers of northern Kentucky founded their own section: to elevate and expand the opportunities and conditions of women.

In 2016, the CLH proudly celebrated 130 years of continuous service to elderly women regardless of their means. The cherished Vic- torian home that houses the CLH was built in 1894, and although it has served the women well, the needs of today’s elderly require an updated facility. The CLH launched its “130 Years and Counting” capital campaign with the hope of serving the community for another 130 years. The anticipated new building will bridge the future with the past by establishing a one-floor facility connected to the original historic building, allowing CLH to care for more women and ensure they spend their golden years with dignity.

The WLS honored this historic anniversary by choosing the CLH as the beneficiary of their annual “white elephant” charity benefit held on Nov. 17, 2016. A tradition of the WLS since its formation in the 1980s, the event benefits a different charity each year that is chosen by a vote of its members. The WLS charges a registration fee for the event, 100 percent of which is donated to the charity. Many members make additional donations. WLS members bring a small gift designated as “fun or funny” for a gift exchange. “Our Lady of Perpetual Litigation” usually makes an appearance to top off a fun evening of gift exchanges, fellowship, and of course, raising money for a great cause.

The 2016 event was planned by WLS Co-chairs JESSICA CRA- VEN and JEANNINE LAMBERT. “The Covington Ladies Home is a very deserving beneficiary,” Ms. Craven said. “The care this organization has given back to the community is unprecedented [and] we’re proud to be able to be a part of their mission.” Ms. Craven and Ms. Lambert are pictured at the top enjoying the event with attorney JENNIFER GATHERWRIGHT (L-R). Pictured at the middle (L-R) are attorney EMILY HUBBARD and CLH Board Vice Presi- dent BECKY JONES. Pictured at the bottom are attorneys GLENDA HARRISON (seated) and ACENA BECK. check out the March bench & Bar issue to see what Kentucky Attorneys are doing in your area. Want to share what you are doing in your community? Contact KBF Executive Director Guion Johnstone at [email protected] to be featured in an upcoming issue.

BENCH & BAR | 55 IN MEMORIAM

s a final tribute, theBench & Bar publishes brief memorials recognizing KBA members in good A 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. Memorials should be sent to [email protected].

PHILLIP G. DEEB SR., age 94, passed away NAME CITY STATE DATE DECEASED on Dec. 1, 2016. Deeb was born on Aug. 1, 1922, in Louisville. He attended the Uni- John M. Berry Turner’s Station KY October 27, 2016 versity of Louisville where he obtained his Morris E. Burton Frankfort KY October 24, 2016 undergraduate and law degrees. He began a very successful practice of law in 1951 Robert C. Cetrulo Ludlow KY October 27, 2016 and for 53 years represented individuals Judi B. Ciliberti Louisville KY November 1, 2016 and families throughout Kentucky. He D. Kendall Cooper Covington KY November 23, 2015 taught many young lawyers about the practice of law, including his two children who Carl Houston Ebert Safety Harbor FL October 14, 2016 were his law partners for many years. Deeb Edwin Spivey Gault Paducah KY October 30, 2016 was president of the Kentucky Academy Arlene Courtney Gray Bardstown KY October 30, 2016 of Trial Attorneys in 1968; a Fellow of the Paul Vincent Hibberd Louisville KY October 18, 2016 American Academy of Matrimonial Law- yers; a Life Member of the Fellows of the Bruce Lynn Kells Hebron KY October 10, 2016 American Bar Association; and was the John T. Miller Louisville KY November 8, 2016 Louisville Bar Association’s Family Law William Douglas Myers Hopkinsville KY October 30, 2016 Practitioner of the Year in 2004. Todd Alan Peck Mason OH March 31, 2016 The above information for Phillip G. Deeb, Charles Varley Schwenker Columbus OH February 17, 2015 Sr., was pulled from a version that appeared James S. Secrest Scottsville KY September 19, 2016 in The Courier-Journal from Dec. 7-Dec. 10, James G. Tomaw Corbin KY January 14, 2016 2016. To access the full obituary, visit http:// www.legacy.com/obituaries/louisville/obit David O. Welch Ashland KY October 29, 2016 uary.aspx?page=lifestory&pid=183010024. Robert Lee Whittaker Frankfort KY November 15, 2016

JOHN M. BERRY JR., age 81, of Turners STEWART E. CONNER, 75, passed away on Nov. 28, 2016. A native of Louisville, he was Station passed away Thursday, Oct. 27, born on Oct. 7, 1941. Conner received a law degree from the University of Louisville. 2016. Berry practiced law in New Castle He joined the law firm Wyatt, Tarrant and Combs (aka Wyatt Firm) in 1966. He held for over 50 years. He was a farmer, mem- various management positions, was managing partner, and chairman of the Executive ber of the New Castle Lions Club, State Committee. He retired in 2007. He was active in various organizations. He was a director Legislator for two terms, president of the of DNP Select Income Fund, Louisville Water Company, the Council on Higher Educa- Kentucky Burley Association and was on tion, Lincoln Heritage Council of Boy Scouts of America, Kentucky Chamber of Com- the Board of Directors of the United Cit- merce and Greater Louisville, Inc. He was also an adjunct professor at the University of izens Bank & Trust for many years. Louisville and the University of Kentucky. He was a member of the American, Kentucky and Louisville Bar association, as well as the Kentucky Chamber of Commerce, Louis- The above information for John M. Berry Jr. ville Lawyers Club and Harmony Landing Country Club. was pulled from a version that appeared in Henry County Local from Nov. 2-Nov. 9, The above information for Stewart E. Conner was pulled from a version that appeared in The 2016. To access the full obituary, visit:http:// Courier-Journal on Dec. 1, 2016. To access the full obituary, visit: http://www.legacy.com/ www.legacy.com/obituaries/hclocal/obitu obituaries/louisville/obituary.aspx?page=lifestory&pid=182839577. ary.aspx?pid=182245750#sthash.YqXfuM hJ.dpuf.

56 | JANUARY/FEBRUARY 2017 EDWIN SPIVEY GAULT, 70, of Paducah, died Sunday, Oct. 30, DAVID O. WELCH, 82, lifelong resident of Ashland, passed away 2016. He was born July 30, 1946. Gault practiced law in Green- Saturday, Oct. 29, 2016. He was born Sept. 5, 1934, in Ashland. ville, Miss., for almost 20 years with Lake Tindall before relocat- Welch was a graduate of Ashland High School, Berea College ing to Paducah in 1990. He joined the Paducah law firm of Whit- and Harvard Law School. He practiced law for 58 years. He was a low, Roberts, Houston & Straub, PLLC, in May of 2013. Gault longtime member of the Board of Trustees of Berea College and was a well-regarded and often-honored maritime trial lawyer currently served as an Honorary Trustee. He served as corporation and represented numerous inland river towing companies, other counsel for the city of Ashland and then went on to serve as mayor marine operations and their insurers. He was named a Kentucky from 1976-1980. He was a founding member of the Ashland Hu- Super Lawyer by his peers in 2007 and held the distinction until man Rights Commission. He served as chair and was a longtime his death. Gault received the AV Preeminent rating from Martin- member of the Kentucky Commission on Human Rights and was dale-Hubbell, which is the highest possible rating in both legal later inducted into the inaugural class of the Kentucky Commis- ability and ethical standards. Gault was admitted to the Missis- sion on Human Rights Hall of Fame. He was a current member of sippi Bar in 1972 and the Kentucky Bar in 1990. Gault received the Committee of Equal Opportunities of the Kentucky Council a B.A. from Vanderbilt University in 1969 and a J.D. from the on Post-Secondary Education. University of Mississippi in 1972. The above information for David O. Welch was pulled from a version The above information for Edwin Spivey Gault. was pulled from a that appeared in the Lexington Herald-Leader on Oct. 31, 2016. To version that appeared in the Clarion Ledger on Nov. 1, 2016. To access access the full obituary, visit: http://www.legacy.com/obituaries/ken the full obituary, visit: http://www.legacy.com/obituaries/clarionledg tucky/obituary.aspx?pid=182217144. er/obituary.aspx?page=lifestory&pid=182231092.

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BENCH & BAR | 57 WHO, WHAT, WHEN & WHERE

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 in writing to: Managing Editor, Bench & Bar, 514 West Main Street, Frankfort, KY 40601 or by email to [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 $10 fee per photograph appearing with announcements. Paid professional announcements are also available. WHO, WHAT, Please make checks payable to the Kentucky Bar Association. 4WWHERE & WHEN of litigation. He earned his J.D. from the University of Cincinnati College of Law where he graduated with honors and served as ON THE MOVE managing editor of the University of Cincinnati Law Review. He is a member of the Kentucky Bar Association, the Kentucky Bar Ferreri Partners, PLLC, announces Anthony Association Young Lawyers Division, and the Northern Kentucky Finaldi and Lori Daniel have joined their firm. Bar Association. Allen can be reached by calling (859) 426-7222 Finaldi’s practice involves both Indiana and or by emailing [email protected]. Kentucky workers’ compensation and civil matters. He is a member of the Kentucky Academy Stites & Harbison, PLLC, announces the add- of Hospital Attorneys and a Certified Continu- ition of three new attorneys to the firm. Mary ing Education Instructor with the Kentucky Katherine Kington joins the real estate & fi- Office of Insurance. Finaldi received his B.A. nance service group in the Louisville, Ky., of- degree, cum laude, from the State University of fice. She graduatedsumma cum laude from the New York at Buffalo, and his J.D. degree from University of Kentucky College of Law in 2016, the Brandeis School of Law at the University of Order of the Coif. While in law school, King- Louisville, where he was a published member ton was senior staff editor of Kentucky Law of the Journal of Law & Education. Daniel has practiced in the Journal and earned the Senior Staff Editor of insurance defense litigation field for 16 years, and exclusively in the Year Award (Spring 2016). Kington joined workers’ compensation defense for the past 11 years. She received Stites & Harbison after serving as a summer as- her B.A. from Georgetown College in 1990 and her J.D. from the sociate for the firm in 2014 and 2015. Jennifer University of Kentucky College of Law in 1993. While attending A. Pekman joins the business litigation service law school, Daniel was a member of the Trial Advocacy Board and group in the Louisville, Ky., office. She gradu- wrote for the Journal of Natural Resources and Environmental Law. ated from the University of Kentucky College She is a member of the Kentucky and Fayette County Bar associ- of Law in 2015, magna cum laude and Order of ations, and she currently serves as vice-chair of the Kentucky Bar the Coif. During law school, Pekman served as Association Workers’ Compensation Law Section. a production editor of the Kentucky Law Jour- nal and earned the Outstanding Second-Year Source and Cite Ed- Ziegler & Schneider, PSC, announces that itor Award. Before joining Stites & Harbison, Pekman served as a attorney Justin A. Sanders has joined the firm. law clerk for the Honorable Thomas B. Russell, U.S. District Judge Sanders spent the last 12 years practicing at his for the Western District of Kentucky. Robin E. McGuffin joins family’s law firm in Covington before moving to the torts & insurance practice service group in the Lexington, Ky., Ziegler & Schneider. His primary practice fo- office. She graduated first in her class from Vanderbilt University cus is civil litigation. His practice also includes Law School in 2015, earning the 2015 Founder’s Medal for First business and corporate law, real estate, employment and labor law, Honors, and Order of the Coif. During law school, she was an ar- and criminal defense. Sanders is licensed in federal and state ticles editor for the Vanderbilt Law Review. McGuffin joined the courts in Kentucky and Ohio. He can be reached by telephone at firm after serving as a law clerk for the Honorable John M. Rogers, (859) 292-4281 or by email at [email protected]. United States Court of Appeals for the Sixth Circuit. She previously participated in the firm’s summer associate program in 2014. Matthew M. Allen has joined the Fort Mitchell, Ky., office of Reminger Co., LPA. Allen’s practice includes transportation lit- Johnson Bearse, LLP, in Frankfort, Ky., announces that W. Eric igation, insurance matters, professional liability, premises liability, Branco has joined the firm as an associate in the practice of law. products liability, and Kentucky workers’ compensation. He orig- Branco earned his J.D. from the University of Kentucky College of inally joined Reminger as a law clerk in 2015, where he gained Law in 2016. experience in a wide variety of practice groups and in all aspects 58 | JANUARY/FEBRUARY 2017 Phillips Parker Orberson & Arnett, PLC, announces that Mat- Vaughn Petitt Legal Group, PLLC, announc- thew J. Wheatley and Ryan D. Nafziger have joined the firm as es that Adam E. Fuller has joined the firm as an associates. Wheatley attended the University of Kentucky and re- associate. Fuller received his J.D. in 2008 from ceived his B.A.in English in 2013 and his J.D. in 2016. Nafziger the University of Louisville Brandeis School of received his B.A. in arts administration from Bellarmine University Law and is licensed to practice in all Kentucky in 2012 and his J.D. from the Louis D. Brandeis School of Law in Federal and State courts. He will concentrate 2016. Both will focus their practice primarily on civil litigation his practice on civil defense litigation. defense. Francisco D. Saviñon, Jr., is a partner in the Louisville office of Ziegler & Schneider, PSC, announces that Sara Quintairos, Prieto, Wood & Boyer, P.A. He focuses his prac- L. Sidebottom has joined the firm as of counsel. tice on insurance defense and personal injury litigation, handling Sidebottom joins the firm after recently retiring various types of claims including long-term care and medical after 20 years from Northern Kentucky University malpractice, products liability, premises liability, and general neg- (NKU) as vice president of legal affairs and general ligence. Saviñon is licensed to practice law in the Commonwealth counsel. Before her tenure at NKU, she maintained a diverse civil of Kentucky and New York, and is a member of the Kentucky Bar and criminal law practice for 16 years, which included 10 years as Association and Louisville Bar Association. He is also admitted to a public defender and six years as a prosecutor. Sidebottom also pre- practice in the U.S. District Courts for the Southern and Eastern viously served a term as a District Court Judge in Kenton County. Districts of New York. Sidebottom’s general practice will include wills and trusts, employment and labor law, and she will be available for private mediations. Wyatt, Tarrant & Combs, LLP, welcomes Emily B. Irwin to its Louisville office. Irwin Dinsmore & Shohl LLP welcomes three as- will join the firm’s corporate & securities sociates to the firm. Jeffrey A. Kaplan Jr. joins service team and is admitted to practice law the Lexington office and will practice out of the in Kentucky. She will concentrate her prac- labor and employment department. While serv- tice in the areas of mergers and acquisitions, ing as a summer associate for Dinsmore, Ka- banking, and corporate governance. She is also a certified public plan drafted pleadings and completed research accountant. Irwin was a Fulbright Research Scholar for the Aus- assignments on litigation, torts and corporate tralian-American Fulbright Commission and a summer associate law. He earned his J.D. from the University of at Wyatt before joining the firm. Prior to graduating from law Kentucky College of Law. Travers B. Manley school, she was the senior notes editor of the University of Louis- joins the Lexington office and will practice out ville Law Review. Irwin earned her J.D., summa cum laude, from of the litigation department. Manley interned the University of Louisville Louis D. Brandeis School of Law, for the Honorable Karen K. Caldwell, Chief her M.B., graduate with distinction, from the Australian Nation- Judge of the United States District Court for al University, and her B.S.B.A. (Accountancy and International Eastern District of Kentucky, researching legal Business), summa cum laude, from the University of Louisville. issues and drafting memoranda. He also was a summer associate with Dinsmore in 2015. Man- Laura Mays, has joined Quintairos, Prieto, Wood & Boyer, ley earned his J.D. from the University of Ken- P.A.’s Lexington office. Mays was awarded a J.D., cum laude, from tucky College of Law. Bardia Sanjabi joins the the University of Kentucky Law School in May 2006 and received Lexington office and will practice out of the litigation department a B.A. from Georgetown College in May 2003, graduating with and focus his practice on tort litigation. Sanjabi was a summer a major in biology. Mays joins the firm from Stites & Harbison associate at Wyatt Tarrant & Combs, LLP, and also interned at where she was a member of the firm’s torts and insurance practice the Law Offices of Karen Wonsetler, PA, in Orlando, Fla. Sanjabi service group and the employment service group. earned his J.D. from the University of Kentucky College of Law. Danielle J. Lewis has joined the Louisville, Ky., office ofReminger Kristen Webb Hill, who oversaw Governor Bevin’s transition, has Co., LPA. Lewis focuses her practice primarily in the areas of joined Frost Brown Todd’s Louisville office. Hill now serves in medical malpractice, nursing home litigation and professional li- the firm’s government services practice group, where she represents ability defense. She is also experienced in handling the defense of public entities, tax-exempt entities, businesses and individuals in a employment, trucking liability, products liability, premises liabili- range of legal matters. She has extensive experience drafting and ty, workers’ compensation, and retail and hospitality matters. She interpreting bills, regulations, ordinances and budgets. In particu- has been recognized as a Rising Star by Kentucky Super Lawyers lar, she dealt with statutes and regulations affecting procurement, Magazine for 2016. She is also a member of the Kentucky Bar As- tax, contracts, capital construction, accounting, technology, state sociation, West Virginia Bar Association, and the Louisville Bar investments and professional licensing. Hill earned her J.D. at Association. She can be reached by calling (502) 625-7308 or by Case Western Reserve University School of Law and spent several emailing [email protected]. years in Washington D.C., interning for Senator Mitch McCon- nell and the National Republican Senatorial Committee.

BENCH & BAR | 59 WHO, WHAT, WHEN & WHERE

Dinsmore & Shohl LLP welcomes three as- law in Rome, Italy. Breen earned his undergraduate degree from sociates to the firm. Jennifer E. Bobbitt joins Wake Forest University. He is a founding member of its Emerg- the Louisville office and will practice out of the ing Leaders Society. Prior to law school, Breen spent more than litigation department. Bobbitt was a summer three years as the co-founder of a successful marketing technology associate for Yum! Brands KFC Division and start-up whose team worked with Warner Brothers, NASA, and the served as a summer associate for Dinsmore. She NFL. While he modeled for Polo Assn., professionally caddied, and was a press intern for the Clinton Foundation raised money for the South Florida nonprofit, Deliver the Dream. in New York City. Bobbitt earned her J.D. from Before starting his own business, Breen was the director of market- Washington University in St. Louis. Lindsey J. ing at a boutique investment bank, which sold lower middle market Boyd joins the Louisville office and will prac- companies valued between $10 and $100 million. tice out of the litigation department. Prior to IN THE NEWS joining Dinsmore, Boyd had a judicial externship with Hardin Circuit Court Judge Kelly M. The National Judicial College (NJC) honored Easton and Judge Ken M. Howard where she Chief Justice John D. Minton Jr. in October observed criminal and civil motion hearings, with the Advancement of Justice Award. This reviewed files and researched legal questions. award was presented by NJC Board of Trust- Boyd earned her J.D. at the University of Lou- ees Chairman Wm. T. (Bill) Robinson III, Esq., isville Brandies School of Law. K. Kirby Ste- and NJC President Chad Schmucker. Chief Justice Minton was phens joins the Louisville office and will practice out of the litiga- honored for his dedication to advancing judicial excellence and tion department. Kirby clerked at Reinhardt and Associates PLC the Rule of Law. During his tenure, the Supreme Court has ad- and also worked as an office assistant at Dinsmore. She earned her opted Kentucky’s first uniform family law rules and Juvenile Court J.D. from the University of Kentucky College of Law. rules to ensure that family law and juvenile law are applied consis- tently in all 120 Kentucky counties. He also formed the Kentucky Goldberg Simpson announces Rudy Ellis, Access to Justice Commission to improve access to civil legal aid Aida Almasalkhi, and Christopher Bailey have for those who cannot afford legal representation. Chief Justice joined the firm as associates. Almasalkhi is an Minton is currently the president of the Conference of Chief associate with Goldberg Simpson. Her practice Justices, chair of the National Center for State Courts Board of primarily includes tort defense, insurance cov- Directors, and a member of the State Justice Institute Board of erage and bad faith, and general civil litigation. Directors. He has been named co-chair of the Council of State Almasalkhia is from Louisville, but she received Governments (CSG) Interbranch Affairs Committee. Chief Jus- her B.A. from the University of Kentucky. tice Minton previously served on the board of CSG and is an Thereafter, she earned her J.D. and graduated alumnus of CSG’s prestigious Toll Fellowship Program. with a Certificate of Distinction in Litigation Skills from the University of Louisville Brandeis Frost Brown Todd (FBT) Louisville Member Stephen E. Emb- School of Law. Ellis is an associate with Gold- ry was recently appointed chair of the newly formed Substantive berg Simpson. His practice primarily includes Law Section on Data Breach, Privacy and Cyber Insurance of the insurance defense and business and commercial Federation of Defense & Corporate Counsel (FDCC). Embry, a litigation. Ellis is a Louisville native and grad- national litigator with nearly 40 years of experience in developing uated from St. Xavier High School in 2008. solutions to complex litigation and corporate problems, frequently He graduated with a B.A. in journalism from handles consumer class action and mass tort litigation cases. He Indiana University (Bloomington) in 2012 and previously served as chair of FBT’s Mass Tort Litigation practice received his J.D. from the University of Louisville Brandeis School group. He is currently a member of the litigation department and of Law in 2016. Bailey’s practice areas include commercial liti- fbtTECH—the firm’s technology group, which focuses on various gation, employment law, and real estate transactions. Bailey is a aspects of existing and future technology, anticipating the ways in Louisville native and graduated from Ballard High School in which they will impact the legal system as well as the issues facing 2002. He graduated with a B.A. in history from Indiana University clients. Embry also serves as the vice chair of the Legal Technolo- Southeast in 2009, with the honor of being student of the year in his gy Resource Center of the American Bar Association (ABA), and department. Bailey attended the University of Louisville Brandeis is a member of the ABA’s Law Practice Today Editorial Board School of Law and completed his J.D. in the spring of 2016. and Law Leadership Committee.

Richard Breen Law Offices, P.S.C., welcomes O’Bryan, Brown & Toner announces that part- Connor M. Breen as a new associate in the firm. ner James P. Grohmann was inducted into the Breen received his J.D. from the Louis D. Brand- American College of Trial Lawyers in Philadel- eis School of Law at the University of Louisville. phia. The American College of Trial Lawyers is There, he served as community service chair for an invitation only fellowship of exceptional trial the Student Bar Association, director of the Bus- lawyers of diverse backgrounds from the Unit- iness Law Society, and earned an academic scholarship to study ed States and Canada. The College selects only

60 | JANUARY/FEBRUARY 2017 those who have demonstrated the very highest standards of trial The University of Louisville’s Brandeis School advocacy, ethical conduct, integrity, professionalism and collegiality. of Law honored Charles J. (Mike) Cronan IV of Stites & Harbison, PLLC, at their 2016 At the Defense Research Institute’s Annu- Alumni Awards Luncheon. Cronan was among al Meeting in Boston, Sturgill, Turner, Barker those honored with the Distinguished Alumni & Moloney, PLLC, attorney Stephanie M. Award. Cronan is a member (partner) of the Wurdock was awarded the 2016 Outstanding firm. Having tried numerous cases, his practice focuses on civil lit- Committee Vice Chair in recognition for her igation, with emphasis on business and complex litigation, health work on the Young Lawyers Steering Commit- care law, and alternative dispute resolution. Cronan’s leadership tee. Wurdock has been actively involved with DRI since 2011, and experience at Stites & Harbison has included serving as manag- currently serves as the Young Lawyers Steering Committee’s Co- ing partner as well as chair of the firm’s health care service group. Chair of Activities. Wurdock’s practice at Sturgill Turner focuses Outside of the firm, Cronan is currently president of the Louis- on medical malpractice and nursing home defense. ville Bar Association. He serves on the Attorney Steering Com- mittee of Citizens for Better Judges. He is a member of Rotary Kentucky Defense Counsel, Inc. (KDC), announces their officers Club of Louisville. for 2016-17: President - Beth Lochmiller of Coleman, Loch- miller & Bond, Elizabethtown; President-Elect - Wm. Mitchell Mazanec, Raskin & Ryder (MRR) announces Hall of VanAntwerp Attorneys, Ashland; Vice President - Darrin that partner Casey C. Stansbury is the newly Banks of Porter, Banks, Baldwin & Shaw, Paintsville; Secretary/ appointed chair of the Defense Research Insti- Treasurer - Claire Parsons of Adams, Stepner, Woltermann & tute’s (DRI) Governmental Liability Commit- Dusing, PLLC, Covington; Immediate Past President - Bradley tee. Founded more than 50 years ago, DRI is A. Case of Dinsmore & Shohl, Louisville. These individuals will the nation’s leading organization of defense attorneys and in-house also serve as KDC’s Executive Committee. counsel. Stansbury’s appointment to a one-year term as chair was made official during DRI’s annual meeting in Boston, Mass. Stans- bury focuses his practice on civil rights and governmental liability issues. Stansbury earned the Defense Research Institute’s 2014 Albert H. Parnell Outstanding Program Chair Award. He is involved in a number of professional organizations, including the Kentucky Defense Counsel, Federation of Defense and Corporate Counsel (FDCC), the Risk and Insurance Management Society, Reminger Co., LPA, announces the installation of John Dunn and the Bluegrass Claims Association. He earned his undergrad- as the president of the Salmon P. Chase College of Law Alumni uate degree at Louisiana State University and his J.D. from Ohio Association Board of Governors. The Chase Alumni Association Northern University College of Law. provides a variety of ways for alumni and friends of NKU Chase to stay connected. The Board of Governors is the governing body Ashlee Coomer Foltz, chief compliance offi- of the Chase Alumni Association and meets twice; members serve cer of Cintas Corporation, was named a 2016 for three-year terms. Dunn practices in Reminger’s Fort Mitchell Woman of Influence byLEAD Magazine. The and Cincinnati offices. His legal practice focuses on trucking and honor pays tribute to Cincinnati area women transportation litigation, insurance matters, professional liabili- who have helped shape the success of their or- ty, premises liability, products liability, construction liability and ganization and the region through exceptional Kentucky workers’ compensation. Dunn can be reached by email- leadership, professional achievements and continuous dedication ing [email protected] or by calling (859) 426-3662. to cultivating a thriving and progressive community. Foltz over- sees the compliance and ethics program for the company’s 35,000+ Dinsmore & Shohl LLP’s William A. Blodgett employee-partners across North America and around the world. was honored by the Louisville Fund for the Arts She earned a B.A. in English from Centre College (2002) and and Stoll Keenon Ogden with their Arts Lead- her J.D. from the University of Dayton School of Law (2005). In ership Award. The James Welch, Sr., Arts Lead- 2015, she was appointed Xavier University’s Ethicist in Residence ership Award honors individuals who have made at the Williams College of Business. a substantial impact to the arts community in Louisville and the region through their volunteer work and lead- Continuing the firm’s legacy as a premiere ad- ership. Blodgett is president of the Kentucky Opera Board of Di- vocate to end human trafficking, Dinsmore -at rectors and served as the interim director for the Kentucky Opera torney Marisa E. Main has been honored for for over a year after the tragic death of General Director David her commitment. Main received the Liberation Roth in July 2015. He previously served as board president of both Award from Kentucky Rescue and Restore at a Actors Theatre of Louisville and the Kentucky College of Art and ceremony on December 1. The Liberation Awardhonors individu- Design. Blodgett is a member of the labor & employment, litiga- als, agencies and community advocates who have made a signif- tion and corporate departments. icant impact in the effort against human trafficking throughout

BENCH & BAR | 61 WHO, WHAT, WHEN & WHERE

Kentucky by raising awareness or providing assistance to victims. incentives. She currently serves on additional boards, among them Main practices in the litigation department with a focus on com- the Kentucky State Fair Board and the U.S. Bank Louisville Ad- mercial litigation. She represents clients in state and federal courts visory Board. Barber was recognized as a member of Louisville’s regarding matters in product liability, personal injury, insurance “Forty Under 40” Class of 2011, the Leadership Louisville Class defense and toxic tort. Main earned her J.D. from the University of 2014, and was selected Louisville’s “Enterprising Woman to of Akron School of Law, summa cum laude. Watch” by Louisville Business First in 2015. She earned a B.S. in communications from UK in 2005 and a J.D. from the UK School The Speed Art Museum recently elected Stites of Law in 2008. & Harbison, PLLC, attorney Ozair Shariff to serve on its Board of Trustees for a three-year O’Bryan, Brown & Toner announces that at- term. Prior to his election as a trustee he served torney Holly S. Barger was sworn in as sec- on the museum’s Board of Governors. Shariff is retary of the Women Lawyers Association on an attorney with Stites & Harbison based in the Nov. 10, 2016. Louisville, Ky., office. He is a member of the health care service group, where his practice is devoted to a wide range of issues af- Wyatt, Tarrant & Combs, LLP, announces that fecting health care providers. He focuses on regulatory, compliance, Robert Ryan has been elected to the Commerce privacy and data security, physician contracting, antitrust, and gen- Lexington Board of Directors. Commerce Lex- eral transactional matters. He has appeared on behalf of health care ington Inc. promotes economic development, clients in numerous administrative hearings. Shariff ’s civic and pro- job creation, and overall business growth in fessional leadership roles are numerous. He is a board member of Lexington and its neighboring communities, both the Muhammad Ali Center and Doctors & Lawyers for Kids. while strengthening its existing businesses through the many programs and services that the organization offers. Ryan is a partner Bradley A. Case, partner with Dinsmore & in Wyatt’s Lexington office where he focuses his practice on real Shohl LLP, has become a fellow of the Amer- estate, commercial litigation and contracts. Ryan earned his J.D. ican College of Trial Lawyers, one of the pre- from Ohio Northern University where he currently serves as the mier legal associations in North America. Case president of the Alumni Association. He is active in the Lexing- was inducted at the 2016 Annual Meeting of ton community serving on the Board of Directors of Bluegrass the College in Philadelphia. Founded in 1950, Tomorrow and as president of the Rotary Club of Lexington. the American College of Trial Lawyers is composed of the best of the trial bar from the United States and Canada. Fellowship in the Melanie Bootes, chief legal officer of KFC U.S., has been named College is extended by invitation only. Case is a partner in the General Counsel of the Year by the Association of Corporate litigation department at Dinsmore. His practice focuses on the Counsel (ACC), Kentucky Chapter. Bootes, who has served as chief defense of professional liability and personal injury claims and legal officer for KFC U.S. since 2015 is a member of the KFC U.S. the litigation of business disputes. Case earned his J.D. from the leadership team and is responsible for oversight of KFC’s legal act- Brandeis School of Law at the University of Louisville and his ivities. She supports the organization’s business strategy, goals and B.B.A. from the University of Kentucky. objectives by helping balance business and legal risks while working to proactively advance corporate goals through legal initiatives. Stoll Keenon Ogden PLLC (SKO) attorney She is a member of Women’s Foodservice Forum, Big Leap For- Jim Philpott has been elected president of the ward, a senior team sponsor of KFC WIN (Women in Network- American College of Equine Attorneys, Inc., ing) and recently spoke at the Women Influencing Louisville an- (ACEA). The election occurred at the annual nual conference on “Closing the Confidence Gap.” meeting of the ACEA board of directors. Phil- pott has been with SKO since 2008. He is a Kentucky Defense Counsel, Inc. (KDC), held its member of the business services practice and chairs the equine 2016 Fall Seminar Annual Meeting and Awards transactional practice. Philpott is one of the founding members of Luncheon on Nov. 10 & 11, 2016 at the Marriott the initial board of directors for the Breeders Cup Ltd, where he Griffin Gate, Lexington. KDC is pleased to an- served nearly 30 years as a director and corporate officer. ACEA is nounce and congratulate the 2016 KDC award re- a national non-profit organization which promotes ethical prac- cipients: Diplomat of the Year - Donald P. “Pat” tices among equine counsel and provides legal support, research, Moloney of Sturgill, Turner, Barker & Moloney, scholarship and resources for industry groups and attorneys who Lexington; Defense Lawyer of the Year - David practice equine law. V. Kramer of Dressman Benzinger LaVelle psc, Crestview Hills; Young Lawyer of the Year - Bran- Governor Matt Bevin has appointed Frost Brown Todd (FBT) don Lally of Coleman, Lochmiller & Bond, Eliza- Member and University of Kentucky alumna Jennifer Barber to bethtown. Each of these individuals were nominat- the UK Board of Trustees. Barber is a member of FBT’s Tax Law ed by the KDC membership and a final decision Practice Group, where she focuses in the areas of state and local was made by the KDC Awards Committee. tax, tax controversy and litigation, and economic development and

62 | JANUARY/FEBRUARY 2017 B&B MARKETPLACE

Address or e-mail chanes Notiy the Kentcky Bar Association Over 18,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the Kentucky Bar Association (KBA) EMPLOYMENT informed of your correct mailing address. Pursuant to rule SCR PI Junior Associate Attorney ( Jacksonville, FL) 3.175, all KBA members must main- Law Firm of Military Veterans is seeking Veterans in the Jacksonville FL area for their tain a current address at which he growing law firm. PI Jr Associate Attorneys (0-5 years’ experience and recent grads). Sal- or she may be communicated, as ary commensurate with experience. Please send cover letter and resume with references well as a physical address if your mailing address is a Post Oﬃce to [email protected] address. If you move, you must notify the Executive Director of Oldfather Law Firm the KBA within 30 days. All roster Complex civil litigation firm focusing on plaintiff-side medical malpractice and products changes must be in writing and liability cases, trust and estate litigation, divorces, and employment law. must include your 5-digit KBA member identiﬁcation number.

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Kentucky Bar Association, LET THIS SPACE WORK FOR YOU! Executive Director 514 W. Main St., Classiﬁed Advertising: Frankfort, KY 40601-1812 $30.00 for the ﬁrst 20 words, $.50 for each additional word. *Announcements sent to the 15% Discount for One Year Insertions Paid in Advance. Bench & Bar’s Who, What, When & Call (502) 564-3795 for information and placement. Where column or communication with other departments other st than the Executive Director do not Deadline for the May 2017 issue is April 1 , 2017. comply with the rule and do not The KBA appreciates the support of our advertisers, but the publication of any constitute a formal roster change advertisement does not constitute an endorsement by the Kentucky Bar Association. with the KBA.

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