ETHICS JEOPARDY CLE Credit: 1.0 Ethics Friday, June 15, 2018 12:30 p.m. - 1:30 p.m. Bluegrass Ballroom II Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenters ................................................................................................................. i Ethics Jeopardy! .............................................................................................................. 1 Introduction – Kentucky Rules of Professional Conduct ....................................... 1 "Statistics Are No Substitute for Judgment" ......................................................... 1 "What We Have Here Is a Failure to Communicate" ............................................ 3 "Diligence Overcomes Difficulties; Sloth Makes Them" ........................................ 5 "Everything Has to Come to an End, Sometime".................................................. 7 "Tricks and Treachery Are the Practice of Fools, that Have No Wit Enough to Be Honest" ................................................................... 10 "He that Pays for Work before It's Done, Has but a Penny's Worth for Two Pence" ........................................................................................ 12 Full Text of Lincoln's Notes on the Ethical Practice of Law ................................ 16 THE PRESENTERS Judge Glenn E. Acree Kentucky Court of Appeals 360 Democrat Drive Frankfort, Kentucky 40601 JUDGE GLENN E. ACREE was first elected judge for the Kentucky Court of Appeals in November 2006 to serve Division 2 of the 5th Appellate District. He was appointed to that position in August 2006 to fill a vacancy created by the retirement of Judge Julia K. Tackett. Judge Acree was re-elected for another eight-year term in 2014 and served as chief judge of the Court of Appeals from July 1, 2012 to June 30, 2016. Before his appointment to the Court of Appeals, Judge Acree handled litigation and appeals in the areas of criminal law, administrative law, employment discrimination, contract dispute, civil procedure, insurance law, domestic relations, environmental law and construction law. After taking the bench, Judge Acree founded the KBA Appellate Advocacy Section. He is one of only 214 state and federal judges nationwide designated as a Fellow of the Advanced Science & Technology Adjudication Resource Center. Judge Acree has a bachelor’s degree and Juris Doctor from the University of Kentucky. He also earned a master’s degree from the University of Maryland in American History. Justice Steven H. David Indiana Supreme Court 315 Indiana State House 200 West Washington Street Indianapolis, Indiana 46204 JUSTICE STEVEN H. DAVID is the 106th justice of the Indiana Supreme Court. He graduated magna cum laude from Murray State University as a Distinguished Military Graduate on an R.O.T.C. scholarship. He earned his law degree from Indiana University’s Robert H. McKinney School of Law. He is also a graduate of the Indiana Judicial College and the Graduate Program for Indiana Judges. Following his graduation from law school in 1982, he served in the United States Army Judge Advocate General's Corps on active duty until 1986 and reserve duty until 2010. His service included two post 9-11 mobilizations in Iraq and Guantanamo Bay, Cuba. He served as trial counsel, defense counsel, Military Judge and Commander. He graduated from the Army's Command and General Staff College, the Military Judges School, and the Judge Advocate General's Basic and Advanced Officer's Course. He's a member of the Boone County, Lake County, Marion County, Indiana and American Bar Associations, Indiana Judges Association, the Indiana Council of Juvenile and Family Court Judges and the American Legion. i William D. Mott 1121 Smiths Grove Road Burkesville, Kentucky 42717-8364 WILLIAM D. MOTT served as The Master of Ceremonies, HM (Her Majesty) The Queen's Ceremonial Warrant Officer. The Garrison Sergeant Major London District was the coordinator and organizer of all state ceremonial events including, HM The Queen Mother's Funeral in 2002; HM's Golden and Diamond Jubilee celebrations in 2002 and 2012, respectively; the Royal Wedding in 2011 and the funeral of Baroness Thatcher in 2013 and all annual state ceremonial parades including The Queen's Birthday Parade (Trooping the Colour), the Garter Service, State Visits (3 annually), Festival of Remembrance and the Cenotaph parade. Mr. Mott enlisted into the 1st Battalion Welsh Guards in April, 1979, and has served at regimental duty in Belize, Canada, Cyprus, France, Germany, Kenya and the USA. He completed operational tours of Northern Ireland and served in the Falklands War in 1982. He has held the post of instructor at both the Guards Depot, as a Sergeant, and also at the Royal Military Academy Sandhurst as a Colour Sergeant, Company Sergeant Major and as a Regimental Sergeant Major. Prior to assuming the appointment of Garrison Sergeant Major London District in 2002, he held the post of Garrison Sergeant Major Headquarters Northern Ireland. Having shadowed his predecessor "Perry Mason" over a 12-month period GSM Mott's first Trooping of the Colour as the GSM was in June 2003. During his time as GSM he worked in Sri Lanka, Malaysia, Jamaica and Jordan as a ceremonial advisor and chief assessor. GSM Mott was awarded the OBE (Office of the order of the British Empire) in The Queen's Birthday Honors 2007. He was presented with a new insignia of rank reviving the original one made for a select group of Sergeant Majors appointed to the Court of King William IV in the early 19th Century. He was awarded the MVO (Member of the Victorian order) in the Diamond Jubilee Honors 2012, for his personal service to HM The Queen organizing the Armed Forces parade and Diamond Jubilee. He was granted The Freedom of the City of London in 2013 for his significant service to The City. He was the first individual serviceman to receive this honor. Mr. Mott now lives with his American wife on their 13 acre farm in Kentucky where he has been learning the skills required in using a sizable tractor on their farm. ii Scott White Miller Edwards Rambicure 300 East Main Street, Suite 360 Lexington, Kentucky 40507 SCOTT WHITE joined Miller Edwards Rambicure in 2017, bringing over 31 years of experience, including eight as Assistant Deputy Attorney General for Kentucky. His practice runs the gamut of complex civil and criminal litigation, with over 70 jury trials and 50 bench trials in federal and state courts. His extensive experience representing clients in matters of complex lender liability and commercial disputes, contested family law matters, corruption and sexual harassment claims, healthcare fraud, and election crimes is a striking asset in the courtroom. Mr. White received his B.A., magna cum laude, from the University of Kentucky and his J.D. from the University of Kentucky College of Law. iii iv ETHICS JEOPARDY! Justice Steven H. David, Judge Glenn E. Acree, William D. Mott, and Scott White I. INTRODUCTION – KENTUCKY RULES OF PROFESIONAL CONDUCT "Rules! Rules! Rules are mostly made for the lazy to hide behind. Some little thing goes wrong. Instead of mending the situation on the spot, we make a rule." General Douglas MacArthur1 Well, that's not exactly how we view the Kentucky Rules of Professional Conduct -- quite the opposite. To quote KBA Chief Bar Counsel Jane Herrick, "These rules were created BECAUSE of the – let's not say lazy – let's say the diligence challenged."2 As we will see, most violations of the Rules can be traced to such unnecessary inattentiveness as a lawyer's failure to make a phone call or write a letter, or a failure to expeditiously perform services, or to promptly or properly terminate the lawyer-client relationship. Rather than coursing through the Rules sequentially, we will take the Rules on by focusing on the five (5) Rules most frequently violated during the last full fiscal year. But first, some general statistics. II. "STATISTICS ARE NO SUBSTITUTE FOR JUDGMENT."3 Here are some statistics to ponder. A. Number of lawyers licensed in the State of Kentucky4 – 18,447. B. Percentage of lawyers with complaints filed against them – 2.64 percent. C. Although the rate of complaint-filing turned down for several years, it went up in the last full fiscal year. Take a look at the trend of percentage of lawyers with complaints filed: 1 Arthur Herman, Douglas MacArthur: American Warrior 163 (New York: Random House, 2017) (quoting MacArthur). 2 Telephone interview with Chief Bar Counsel Jane Herrick, May 21, 2018. 3 Henry Clay (1777-1852), quoted in Richard S. Zera, Business Wit & Wisdom 249 (Washington, DC: Beard Books, 2005). 4 Most recent available KBA statistics are from fiscal year 2016-2017. 1 1. FY2011-12: 4.13 percent. 2. FY2012-13: 3.95 percent. 3. FY2013-14: 3.66 percent. 4. FY2014-15: 3.35 percent. 5. FY2015-16: 2.64 percent. 6. FY2016-17: 3.06 percent. Percentage of Kentucky Lawyers With Complaints Filed Against Them, FY2011-12 to FY2015-16 5 4 3 2 1 0 2011-12 2012-13 2013-14 2014-15 2015-16 2016-17 D. As shown on the following chart, the annual number of complaints received and investigations opened by the KBA Bar Counsel has remained constantly above 1,000.