Meet Kentucky Lawyer Joanne Bland

NIA_BenchBar_Coverage40_v2.pdf 1 10/18/15 1:27 PM

HONESTLY, IT'S OUR BEST POLICY

KBA TERM LIFE PLAN UP TO $500,000 COVERAGE, NON-MEDICAL APPLICATION* C 10 & 20 YEAR LEVEL TERM WITH SPECIAL END OF TERM CONTINUATION M

CM MY KBA INDIVIDUAL OWN OCCUPATION DISABILITY INCOME PLAN CY UP TO $10,000/MO COVERAGE, NON-MEDICAL APPLICATION* CMY NO EXAMS, BLOOD TESTS OR TAX RETURNS REQUIRED K niai.com

Call or Email TODAY | 800.928.6421 | [email protected] | www.NIAI.com NIA IS THE KBA LIFE & DISABILITY PLAN ADMINISTRATOR. *EXAMS OR ADDITIONAL INFO MAY BE REQUIRED WITH CERTAIN MEDICAL HISTORIES. Vol. 79, No. 6 This issue of the Kentucky Bar Association’s B&B-Bench & Bar was published in the month of November. Communications & Publications Committee James P. Dady, Chair, Bellevue Paul Alley, Florence Elizabeth M. Bass, Lexington Contents James Paul Bradford, Paducah Frances E. Catron Cadle, Lexington 2 President’s Page Anne A. Chesnut, Lexington By Doug Farnsley Rachel Dickey, Louisville 5 Call for Distinguished Service Awards Mark Flores, Lexington Features: Potpourri Cathy W. Franck, Crestwood Lonita Baker Gaines, Louisville 6 Bourbon, Horse Racing and Hemp? By Matthew Smith William R. Garmer, Lexington Laurel A. Hajek, Louisville 10 2015 Changes to FRCP 26(b)(1) and the Expected P. Franklin Heaberlin, Prestonsburg Impact on Kentucky Practice Judith B. Hoge, Louisville By Leslie M. Cronen and A. Lyane Stackhouse Jessica R. C. Malloy, Louisville 14 Superfund in Kentucky IV: Uncontrolled Sites in Eileen M. O'Brien, Lexington Kentucky; Where We Are and How We Got Here Richard M. Rawdon, Jr., Georgetown By Ronald R. Van Stockum, Jr. Sandra J. Reeves, Corbin Columns Gerald R. Toner, Louisville Sadhna True, Lexington 22 University of Kentucky College of Law Zachary M. Van Vactor, Louisville 24 University of Louisville Louis D. Brandeis Michele M. Whittington, Frankfort School of Law Publisher 26 Northern Kentucky University Salmon P. Chase John D. Meyers College of Law Editor 28 Effective Legal Writing James P. Dady By Kristin Johnson Hazelwood Managing Editor 30 Young Lawyers Division By J. Tanner Watkins Shannon H. Roberts Bar News Design & Layout Jesi L. Withers 31 Judicial Conduct Commission 42 USPS Statement of Ownership Form The B&B - Bench & Bar (ISSN-1521-6497) 43 2015 Fall Swearing In Ceremony is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 44 KBA Board of Governors Minutes and KY 40601-1812. Periodicals Postage paid at Upcoming Meeting Dates Frankfort, KY and additional mailing offices. 46 Kentucky Commission on Human Rights All manuscripts for publication should be sent and the UK College of Law Will Hold Symposium to the Managing Editor. Permission is granted for reproduction with credit. Publication of 47 Order Amending Rules of the Supreme Court (SCR) any article or statement is not to be deemed an Departments endorsement of the views expressed therein by the Kentucky Bar Association. 62 Kentucky Lawyer Assistance Program Subscription Price: $20 per year. Members 64 Kentucky Bar Foundation/IOLTA subscription is included in annual dues and is 66 Continuing Legal Education not less than 50% for the lowest subscription price paid by subscribers. For more information, call 69 Who, What, When and Where (502) 564-3795. 74 In Memoriam & Postmaster 75 B B Marketplace Send address changes to: B&B - Bench & Bar 514 West Main Street Cover photo by Mark Cornelison Frankfort, KY 40601-1812 Several inside graphics by ©istockphoto.com/JesiWithers

BENCH & BAR | 1 PRESIDENT’S PAGE

Respecting our Differences: Meet Kentucky Lawyer JoAnne Bland myself, “Well, that’s odd.” JoAnne’s pre‑ gender, they require that the patient under‑ sentation at the Summit opened my eyes go three months of counseling and that to a world that I knew almost nothing the counselor support the patient’s decision about. To my knowledge, I had not met to change his or her gender. Once a patient a transgender person until I introduced has been receiving hormone therapy for one By Doug Farnsley myself to JoAnne following her remarks. year, a surgeon will perform surgery to assist in the transition. In February 2010, John JoAnne is 70 years of age. Four years ago, began seeing therapists in Lexington and JoAnne transitioned from male to female, Louisville. Thereafter, John began receiving from John to JoAnne. JoAnne was born in hormone therapy, and JoAnne underwent n April 2015, the Kentucky and Louis- Sylacauga, Ala., and was raised in Hardin “Gender Confirming Surgery” in 2011. ville Bar associations and the Brandeis County, Ky. Although biologically a male, School of Law co-sponsored a Diver- JoAnne explained at the Summit that she After making the transition from male to Isity and Inclusion Summit. Speakers and had known from the time she was five years female, JoAnne has dedicated herself to ad‑ panelists included African Americans, of age that her biological gender did not vocating for members of the transgender Hispanics, individuals with physical dis- match her true gender. community. The news story in theIndepen - abilities, Caucasians, and members of the dent bore the headline “Attorney JoAnne LGBT community. As we planned the In 1970, John began practicing law in Eliz‑ Bland begins ‘transition journey’ to new event, a friend and fellow KBA Board abethtown. He became a successful trial life: She wants to focus on helping others.” member suggested that we invite JoAnne lawyer who represented plaintiffs in person‑ JoAnne’s biography notes that she has ad‑ Bland to speak. The person who made the al injury cases and claimants in workers vised children, adults, parents, families and suggestion explained that JoAnne is a tran‑ compensation cases. A trial judge before co‑workers regarding transgender issues. At sgender trial lawyer from Elizabethtown. whom John often appeared commented in the Summit, JoAnne talked about parents Until a few years ago, JoAnne had been an email that John, “was a zealous advocate from two families who sought her out. The John Bland. My reaction was to think to in the best sense of the phrase. two couples each had a transgender child He was (and she is) a fighter. younger than 12 years of age who were con‑ He knew the law and was re- templating suicide. In addition to support spected. He might disagree from their parents and guidance from pro- with you, but he faced you fessionals, JoAnne’s life experience and with a trademark grin that is her understanding of the children’s plight still a trait for JoAnne.” helped the children realize that their lives are worth living and that they could expe- Over the years leading up to rience happiness and fulfilment. her transition, John conducted extensive research on transgen- As part of her mission to help others, Jo‑ der issues. JoAnne’s biography Anne serves on the Committee on Equal explains that in 2010, she Opportunity of the Kentucky Council on “began her transition from her Postsecondary Education. When JoAnne assigned male gender at birth began her service on the committee, the def to her true female gender.” inition of diversity that would be respected The medical treatments in‑ by the state’s universities and community cluded hormone therapy and colleges did not include gender identity and surgery. In a Nov. 11, 2010, gender presentation. With JoAnne’s help, news story that appeared on the committee and ultimately the Council the front page of the Hardin came to understand the rights of the trans- County Independent, JoAnne gender student. explained that before an endo‑ crinologist or a surgeon will JoAnne’s approach to advocacy on trans- assist in changing a patient’s gender issues can be described as one of Continued on Page 4 2 | NOVEMBER/DECEMBER 2015 Horses aren’t the only thing in Kentucky that move fast.

Resolving a legal crisis quickly can mean the difference between winning and losing a malpractice claim. That’s why more Kentucky legal professionals choose Lawyers Mutual. With 27 years of Kentucky experience, we specialize in providing smaller firms with the kind of fast personal service that prevents a bump in the road from taking you out of the race. Don’t gamble on other companies. Go with a proven winner right here in Kentucky. contact Lawyers Mutual for your free quote today at 502.568.6100 or www.lmick.com.

By Kentucky Lawyers. For Kentucky Lawyers.

lmick_horseshoe_kba_8.5x10.875.indd 1 3/19/15 9:40 AM PRESIDENT’S PAGE

friendly persuasion. However, JoAnne took Jillian Weiss, a New York attorney who The article tells the story of a female Lou- advocacy for her position one step further specializes in representing transgender isville police officer, Jennifer Godfrey, who when she advised her fellow Committee individuals, knows JoAnne through their has served on the force for 10-years. Offi- members about two cases decided by the mutual activities on behalf of transgender cer Godfrey, determined that she would United States Court of Appeals for the Sixth people. Weiss cites JoAnne’s success on the move from being female to being a male. Circuit, Jimmie Smith v. City of Salem Ohio, Committee on Equal Opportunity as her In words that tracked JoAnne’s remarks at 378 F.3d 566 (6th Cir., 2004) and Philecia “most important achievement to date.” the Summit, the reporter stated that Jenni- Barnes v. City of Cincinnati, 401 F.3d 729 Weiss wrote in an email that JoAnne’s fer, now known as “Jensen,” began to reveal (6th Cir, 2005). The cases support the prop- “consciousness-raising work … is crucial to to her fellow officers that “for as long as he osition that transgender individuals enjoy getting the word out to Kentucky employ- [could] remember, the sex he was assigned protection under Title VII of the Civil ers to avoid potential Title VII liability in at birth did not match what he knew in Rights Act of 1964. In the Barnes case, the future.” his head and felt in his heart.” The story Philecia Barnes, a male-to-female trans- went on to recount the significant help that gender Cincinnati police officer, alleged that After meeting JoAnne in April, I have Jensen received from the City of Louisville’s the City had violated her rights by denying come across two news stories of interest. human resources director, but also reports her a position as a sergeant. A federal court The first article appeared on July 14, 2015, the difficulties that some of Jensen’s co- jury agreed and awarded Officer Barnes in the Miami Herald and other newspa- workers have had accepting his transition. $320,511. The court then awarded Barnes pers. The item reported that on July 13, $527,888 in attorney fees and $25,837 in the Secretary of Defense announced that “My position has evolved.” This is a state- costs. On appeal, the City argued inter alia the pentagon was lifting its prohibition on ment that we hear occasionally from our that Barnes was not a member of a pro- transgender people serving in the military. politicians. In my lifetime, our society’s tected class. The Court of Appeals rejected The article went on to report that the mili- views have changed dramatically on a the argument holding, “Sex stereotyping tary is undergoing a six month review of its variety of topics including, among others, based on a person’s gender non-conforming current regulations and policies on trans- integration and acceptance of gays and les- behavior is impermissible discrimination, gender troops but also notes that during bians. The latest frontier in this type of irrespective of the cause of that behavior; a that review individuals would not be dis- evolution for me is my new understanding label such as “transsexual” is not fatal to a charged because of their transgender status. of and respect for the transgender person. sex discrimination claim where the victim The second news story appeared in the Lou- has suffered discrimination because of his isville Courier-Journal on July 19, 2015, and or her gender non-conformity.” was entitled, “An Officer and a Gentleman.”

Spacefor DEPo SITIatoNS the AND off -SITETable rETrEATS.

Blue Grass Airport’s upscale meeting facilities provide a great meeting location for your legal team and clients! Our familiar, convenient location offers multiple rooms both before and beyond the security checkpoint.

Our contemporary meeting facilities include: For details, call 859.425.3100 or email • Top-of-the-line technology [email protected]. • Beautiful views of the airfield • Full catering service available • Complimentary parking

4 | NOVEMBER/DECEMBER 2015 BGA-MeetingRoom-KYBar.indd 1 6/19/15 1:07 PM KBA AWARDS

DISTINGUISHED2016 SERVICE AWARDS CALL FOR NOMINATIONS he Kentucky Bar Association is accepting nominations for 2016 Distinguished Judge and Lawyer, Donated Legal Services and Bruce K. Davis Bar Service Awards. Nominations must be received by Dec. 30, 2015. If you are aware of a Kentucky judge or Tlawyer who has provided exceptional service in these areas, please call (502) 564-3795 to request a nominating form or download it from our website at https://www.kybar.org/DistinguishedAwards. Distinguished Judge Award and Distinguished Lawyer Award Awards may be given to any judge or lawyer who has distinguished himself or herself through a contribution of outstanding service to the legal profession. The selection process places special emphasis upon community, civic and/or charitable service, which brings honor to the profession. Donated Legal Services Award Do you have clients eligible to receive Nominees for the Donated Legal Services Award must be members in good stand- benefits under anERISA plan? ing with the KBA and currently involved in pro bono work. The selection process places special emphasis on the nature of the We can help. legal services contributed and the amount Put our ERISA experience to work for your clients! of time involved in the provision of free legal services. ERISA Bruce K. Davis Bar Service • Long-term Disability Award • Short-term Disability Many lawyers take time from their prac- • Life/Accidental tices to provide personal, professional and Death Insurance financial support to the KBA. This award expresses the appreciation and respect for Early representation is key, so call us today. such dedicated professional service. All members of the KBA are eligible in any given year except for current officers and members of the Board of Governors.

800-249-3731 201 West Short Street, Suite 800 • Lexington, KY 40507 This is an advertisement Services may be performed by other lawyers

BENCH & BAR | 5 Features:POTPOURRI

Bourbon, Horse Racing, and Hemp?

By Matthew Smith ver the last 200 hundred years, the Commonwealth of Kentucky leaves the Kentucky has led the nation in the general legal practitioner wondering just Even though hemp can be sold for seed, production of quality bourbon, what is hemp, why is hemp illegal, what is fiber, and medicinal purposes, the grow- championship thoroughbreds, and, until the current legal status of hemp in Ken- ing of hemp is still subject to U.S. drug O 1 the 1940’s, the production of hemp. ‑ Indus tucky, and what are the relevant legal issues. laws, while growing industrial hemp is trial hemp manufacturing was a source of restricted.15 It is legal, however, to import wealth for many Bluegrass families be‑ HISTORY OF HEMP: already grown and manufactured hemp tween 1790 and 1860, and throughout that HOW WE GOT HERE products.16 This means that anytime you period, the industry played a vital part in see a hemp product, there is a very good 2 The history of the cultivation of hemp dates the economy of the state. The legal and 10 back to around 4000 B.C.E in China, chance that the hemp in that product was commercial connection between hemp and and the production of hemp in the United grown in another country and then im‑ the Commonwealth of Kentucky goes back States goes back to the first settlers of ported into the United States. to 1792, when the Kentucky Legislature 11 $ 3 Jamestown in 1611. The Declaration of levied a tax of 20 per ton on hemp imports. 12 Independence is written on hemp paper. HOW DID HEMP BECOME Unfortunately for the farmers of Kentucky, Thomas Jefferson smuggled rare hemp seeds ILLEGAL? this connection has been on a 65-year hia‑ 13 from Europe for American farmers, and tus. The last hemp crop was harvested in There is a great deal of disinformation surr‑ during WWII the United States Depart- Kentucky sometime after the end of World ounding hemp, and it mostly deals with its ment of Agriculture made a public service War II.4 With the tobacco industry being close ties with its cousin marijuana. Mar- announcement entitled “Hemp for Victory” hit with multi-billion dollar lawsuits5 and ijuana, hemp, and cannabis are common urging American farmers to grow hemp increasing public hostility toward smok‑ 14 names for plants of the genus Cannabis or to support the war effort. The produc- 17 ing,6 many Kentuckians, including former Cannabis Sativa. The major differences tion and use of hemp is woven throughout Commissioner of Agriculture James Comer, between the two are appearance and the American and Kentucky history. amount of delta-9-tetrahydrocannabinol believe that hemp can be a viable option for 18 Kentucky farmers to replace tobacco.7 Ken‑ (THC), the active ingredient of marijuana. If hemp is illegal, then how do you explain tucky could once again lead the nation in the 8 products such as hemp protein powder, Hemp was first put under legal scrutiny in production of hemp, except for the fact that 9 hemp shampoo, hemp clothing, and hemp the U.S. with the passage of the Marihuana hemp is still technically illegal to grow. rope? The main distinction lies in the clas- Tax Act (MTA) of 1937.19 When the Federal sification of growing and importing hemp. Bureau of Narcotics was unable to get hemp The current legal issues relating to hemp in

6 | NOVEMBER/DECEMBER 2015 classified as a narcotic they instead pushed Bill and whether it allows the sale of hemp Memorandum of Understanding (MOU) through the MTA.20 The MTA includes all in Kentucky. 30 The letter explains the defi- from the KDA, then it will be able to grow forms of Sativa in the definition of mari- nition of the use of the word “marketing” in hemp under the KDA’s specific guidelines. juana.21 Hemp producers suddenly found the Farm Bill §7606(b)(1). The Attorney Selling the hemp that is grown within the that their product was being taxed, since General advised that the Farm Bill allows Commonwealth to a buyer located within hemp is of the genus Cannabis Sativa. Hemp for the marketing of hemp, and does not the Commonwealth is less likely to raise producers were taxed at a rate of $1 per expressly forbid the sale of hemp from such red flags with the DEA. The question still ounce for industrial and medical purposes, projects.31 Accordingly, Conway found that remains as to whether hemp raised under and $100 an ounce for other purposes.22 the sale of hemp is authorized if sold follow- the KDA Pilot project may be sold out of Due to this tax many companies went out of ing the guidelines of the Kentucky Hemp state even to states that have some form of business and as hemp became more scarce, Pilot Project. legalized Hemp production. the misinformation grew.23 However, if the MTA dug the hole for hemp, it was the Between the signing of the Farm Bill and IT’S COMING. BE PREPARED Controlled Substances Act of 1970 that put Kentucky’s passage of SB 50 something Two industrial hemp bills have been intro- the nail in its coffin. very interesting happened. On Aug. 29, duced in the 114th Congress. S. 134 was 2013, a memorandum was issued by James introduced on Jan. 8, 2015, by Senator Wyden HEMP’S CURRENT LEGAL 38 M. Cole, Deputy Attorney General to the (D-OR), while H.R. 525 was introduced on STATUS United States Attorneys, stating that the Jan. 30, 2015, by Representative Thomas Department of Justice (DOJ) should focus 39 As previously noted, hemp is a variety of Massie (R-KY) . The bills define “indus‑ on preventing criminal activity and violence, Cannabis Sativa. Because Cannabis Sativa trial hemp,” exclude it from the definition and should rely on states with legalized is currently defined as marijuana, industrial of “marijuana” in the Controlled Substances medicinal marijuana to enforce their own hemp falls under the Schedule I definition 32 Act, and give states the exclusive authority 24 regulations. The Cole Memo does not of the Controlled Substances Act (CSA). to regulate the growing and processing of mention industrial hemp, but to date, the 40 As a Schedule I drug, industrial hemp is industrial hemp under state law. At least DEA has regarded all industrial hemp as treated in the same manner as heroin, mea‑ 15 states already have laws providing for marijuana, so many have interpreted the ning that the U.S. Government categorizes industrial hemp production, with at least 25 Memo to mean that states can proceed to hemp as having no medicinal purposes. 10-15 more states currently working on in‑ implement their laws regulating and autho- 41 Since the passage of the CSA in 1970, little dustrial hemp legislation. In the U.S., rizing the cultivation of hemp.33 progress had been made in the effort to commercial hemp sales in 2012 were esti- $ 42 legalize hemp in Kentucky. That has all mated at 500 million. The ability to have However, even with some clarification (al‑ changed dramatically in the last three years. hemp as a viable commodity is just too lu‑ beit muddy) from the Deputy Attorney crative to dismiss. It is a matter of time and This change started on April 7, 2013, when General, the Kentucky Department of Agri- that time will be here sooner than you think. Kentucky Senate Bill 50 became law.26 S.B. culture’s (KDA’s) May 2014 shipment of 50 codified at KRS 260.850-260.869 the 250 pounds of imported hemp seed was Under the 2014 Hemp Pilot Project, the regulations surrounding the nation’s first blocked by U.S. customs officials stating, KDA approved 20 growers and 33.4 acres hemp pilot project.27 The new hemp law “importation of cannabis seeds continues to be used for the growing of industrial to be subject to the Controlled Substances 43 contains application and recordkeeping 34 hemp. The 2015 Hemp Pilot Project had filing requirements, and authority for the Imports and Export Act.” KDA filed suit 326 applicants and approved 121 growers, Kentucky State Police to perform back‑ against the Drug Enforcement Agency, and should surpass 1,700 acres.44 ground checks.28 Following S.B. 50, the Customs, and DOJ, and the Common- wealth’s seeds were eventually released Federal Agricultural Act (Farm Bill) of 35 LEGAL ISSUES 2014 was signed into law by the President back to KDA. Interestingly, following the lawsuit by the KDA, Congress’ Fiscal Anyone who either desires to grow hemp on Feb. 7, 2014. The “Farm Bill” allowed or become involved with someone who is for states to decide to grow, cultivate, or Year 2015 appropriations (P.L. 113-235) bolstered the protection of these so called growing hemp must first go through the market industrial hemp, so long as it is for KDA’s vetting process. They must have research purposes.29 Thus, the Kentucky “pilot projects” when it included an amen‑ dment prohibiting the DOJ from using received a MOU outlining what is expected Department of Agriculture has been auth‑ and the conditions that they must follow. orized under Section 7606 of the Farm Bill funds to go after state-legal medical cannabis programs.36 For the 2014 growing season, there were less to establish its Hemp Pilot Project. than 200 MOUs given to growers, suppliers, and manufacturers in Kentucky. The MOU Growing hemp under the Hemp Pilot Proj- So what does all this mean? The simplest way to explain where we are now is that the outlines the 0.3 percent THC restriction, ect is now legal, but what about the sale of in conjunction with Farm Bill of 2014, the hemp that is grown? Clarification on CSA classifies the sale of hemp as a crime, and the Farm Bill exempts pilot programs Section 7606. NO pesticides may be used the legal status of hemp sales was given in a on the growing of hemp.45 The reasoning letter from Attorney General Jack Conway for hemp research by a higher education behind the pesticide ban is that, because to Commissioner James Comer on April institution or state agriculture department 37 hemp has been illegal, there are no legally 1, 2014, explaining the impact of the Farm from the CSA. If a party is awarded a

BENCH & BAR | 7 Features:POTPOURRI

acceptable uses for pesticides on hemp. mitted use provision for a hemp business Just this past May, the FDA posted a section Therefore, pesticides used on hemp would should accurately identify the activities on their website titled, “FDA and Mari- be an off-label use and against the law.46 allowed on the property.52 For example, if juana, Questions and Answers,” stating that If you are speaking with someone who a tenant is a hemp retailer, the permitted products containing cannabidiol cannot be desires to be involved in the production use provision should reflect this by explic- sold as a supplement.58 The FDA deter- of hemp in the Commonwealth of Ken- itly permitting “the retail sale of hemp.” If mined that: tucky and they have not been awarded an the permitted use is unclear, tenants run the Cannabidiol products are excluded MOU from the KDA, then they are possi- risk of breaching the lease by conducting from the dietary supplement defini- bly in violation of the CSA. an activity not permitted on the property, 53 tion under section 201(ff )(3)(B)(ii) of which itself could invite Federal scrutiny. the FD&C Act. Under that provision, INTELLECTUAL PROPERTY Attorneys should be wary when dealing if a substance (such as cannabidiol) Trademarks are a great way for American with hemp clients, since the standard lease has been authorized for investigation businesses to protect their intellectual prop- agreements that you have been using with as a new drug for which substantial erty. Once the trademark is registered, a your other clients may not protect your clinical investigations have been insti‑ trademark owner will have proprietary rights hemp clients, given the constantly-chang- tuted and for which the existence of 47 across the nation. However, the growing ing state and federal laws. such investigations has been made of hemp in the U.S. currently is not legal public, then products containing that unless you qualify under the Farm Bill. In TESTING substance are outside the definition of the past the U.S. Patent and Trademark If a client’s hemp is seized by the DEA or a dietary supplement.59 Office has consistently rejected cannabis- the Kentucky State Police, how will the While this is not law, it does shed light on related patents, holding that the invention testing be done to decide whether the in‑ what the FDA’s current stance is on what is “immoral and scandalous” because mar- dustrial hemp’s THC level is above the 0.3 will surely be an influx of products contain- ijuana is illegal, or that the invention has percent threshold and considered illegal? ing cannabidiol coming in to the market no useful purpose because its use violates As of the time of this article there is no 48 in the next few years. Growers, suppliers, federal drug law. A way around this might agreed-upon machine or testing procedure or retailers who were attempting to circu‑ be a U.S. trademark registration for certain in place that could be used as a litmus test mvent the extremely expensive and time- non-controlled services, including certain as to the validity of the THC content in consuming process of getting a “new drug” services relating to hemp, but in a way deem‑ the seized hemp. 49 approved by the FDA now have more ques‑ ed not to violate federal law. Some exam‑ tions than answers as to whether their ples of non-controlled services might include If the hemp is seized, how will the seizing cannabidiol products can even be sold as a production method, potting instructions, agency be held accountable for following a supplement. or the best fertilizer to use on crops. proper protocol if there is none? This has already become an issue in Oregon where BANKS AND BUSINESS It might also be possible to obtain state out of 15 marijuana-infused edible products DEPOSITS OR LOANS trademarks for hemp products grown in sold in Portland, “only one contained accu- Kentucky. The issue with state trademarks is rate potency information on its label.”54 If One of the main issues dealt with by mar- that they are limited to the geographic area, the producers are sending their goods to be ijuana producers and growers in Colorado i.e. Kentucky. Therefore, a hemp company tested and cannot get accurate information was traditional banks were not accepting with a Kentucky trademark would not be how can they be sure that the testing done the money they were making. “By provid- protected from companies or business out- by government agencies will be any more ing [a] loan and placing the proceeds in [a] side of the state.50 accurate? In many ways, the same testing checking account, the institution would be issues found with breathalyzers will come conspiring to distribute marijuana,” and “By ASSET FORFEITURE FROM in to play with the 0.3 percent THC con- facilitating customers’ credit card payments, LANDLORDS tent in hemp.55 the institution would be aiding and abet- ting the distribution of marijuana.”60 The While industrial hemp in Kentucky may OTHER LEGAL ISSUES same principle could apply to the illegal be legal, it is only so for those operating production of hemp in Kentucky. under the KDA’s Pilot Project. If a tenant FDA AND LABELING is operating without a MOU, then their In February of this year the Food and Drug This past year a party in a transaction that actions are criminal under federal law and Administration (FDA) sent warning letters my firm was assisting ran into a bank that subject to asset seizure.51 Therefore, even to six producers of so-called CBD oil, which 56 refused to accept a payment, due to the use if your landlord client does not want to be is cannabidiol derived from hemp. These of a word related to hemp in the name of involved in the hemp industry, a tenant who warnings from the FDA centered around one of the parties. One suspects that if the is illegally growing hemp could put the companies making effectiveness claims and name of the organization had been “Moth- landlord in hot water with the DEA. not going through the proper drug-vetting ers Against Hemp,” there would have been process. “If you’re claiming effectiveness, no problem with the deposit. The uneasi- Leases typically contain a permitted use you have to go through the drug-approval ness of banks and other lenders in deal- provision to govern the activities that can 57 process.” ing with these issues must be considered, take place on the leased property. The per‑

8 | NOVEMBER/DECEMBER 2015 especially when going into business with 135, Park St. Press, 1996. Division), May 2014. 4. Hopkins, James F. A History of the Hemp Industry in 36. Ferner, Matt. “Congress Passes Historical Medical someone who might require a business loan Kentucky. pg. 219 The University Press of Kentucky. Marijuana Protections in Spending Bill.” Huff- down the road. They might find that loan 1951. ington Post. December 14, 2014. also available hard to obtain. 5. Siferlin, Alexander. Time Magazine. “23.6 Billion at http://www.huffingtonpost.com/2014/12/14/ Dollar Winner to Big Tobacco; Are you Awake congress-medical-marijuana_n_6317866.html. Now?” July 22, 2014. Available at http://time. 37. Federal Agricultural Act of 2014 Sec. 7606 1 (b). CONCLUSION com/3016961/23-6-billion-lawsuit-winner-to-big- 38. S.134 — 114th Congress (2015-2016) “The Indus- tobacco-are-you-awake-now/. trial Hemp Farming Act.” The legal landscape regarding hemp is cha‑ 6. Dwyer, Susan David. “The Hemp Controversy: 39. H.R.525 — 113th Congress (2013-2014) “The nging rapidly, and it affects more than just Can Hemp Save Kentucky?” 86 Ky. L.J. 1143.“ Industrial Hemp Farming Act of 2013.” criminal defense. It is difficult for anyone Summer 1997. 40. Johnson, Renee. “Hemp as an Agricultural Com- 7. Patton, Janet. “Hemp Would be a Boon to modity.” Congressional Research Service. Febuary to keep up with the complex and ever-chan- Kentucky Agriculture, Lawmakers Say.” Lexington 2, 2015. also available at http://www.votehemp. ging regulations on a federal, state, and Herald-Leader, Jan. 20, 2012. Available at http:// com/federal-industrial-hemp-legislation.html and local level when it comes to hemp. How- www.kentucky.com/2012/01/20/2035256/hemp- http://www.politico.com/story/ 2015/02/mitch- would-be-boon-to-kentucky.html. mcconnell-rand-paul-hemp-114928.html. ever it is imperative that we recognize that 8. Harrison, Lowell H. A New History of Kentucky. 41. NCSL, State Industrial Hemp Statutes (http:// if there is a legal issue dealing with hemp Ch. 19 The University of Kentucky Press. 1997. www.ncsl.org/research/agriculture-and-rural-devel- it is not going to be clear-cut, at least not 9. Controlled Substances Act 21 USC 801 et seq. opment/state-industrial-hemp-statutes.aspx); Vote 10. Robinson, Rowan. The Great Book of Hemp. Pg. 103. Hemp (http://www.votehemp.com/us-state-indus- for now. The best way of dealing with these Park Street Pres. VT.1996. trial-hemp-legislation.html) . issues is to realize that, while hemp has 11. Hopkins, James F. A History of the Hemp Industry 42. http://www.thehia.org/PR/PDF/2013-02-25-hia a role in Kentucky’s future, not everyone is in Kentucky. Pg.6 The University Press of Kentucky. _$500_ million_ annual_sales .pdf. 1951. Citing to Gray, “History of Agriculture”, I, 43. Handout disbursed by University of Kentucky De- allowed to grow hemp. However, the oppor- 16, 25. partment of Agriculture at Spring Hemp Seminar tunities for the businesses associated with 12. Robinson, Rowan. The Great Book of Hemp. at p. 25. on March 24, 2015, hosted by The Kentucky Hemp hemp and its consumers are endless. Park Street Press, Vermont. 1996. Industries Association. 13. Id. At 133. 44. Schreiner, Bruce. “Kentucky Hemp Production up 14. Id. At 160. in 2nd year of crop’s comeback.” The Courier-Jour- ABOUT THE AUTHOR 15. Johnson, Renee. “Hemp as an Agricultural nal. May 10, 2015. Commodity,” p. i. Congressional Research Service. 45. Memorandum of Understanding from Kentucky Matthew Smith is an Febuary 2, 2015. Also available at https://fas.org/sgp/ Department of Agriculture for Industrial Hemp attorney-at-law licen‑ crs/misc /RL32725.pdf. Pilot Program. March 2015. 16. Controlled Substances Act 21 USC 801 et seq. 46. 40 CFR 152.20, 152.25, and 152.30. sed to practice in the 17. http://www.mayoclinic.org/drugs-supplements/ 47. Bricken, Hillary. “”Protect Your Cannabis Brand state of Kentucky. marijuana/background/hrb-20059701. With a Trademark.” CannaLaw Blog. May 1, 2013. Smith received his B.A. 18. Id. Also Available:http://www.cannalawblog.com/ 19. http://www.pbs.org/wgbh/pages/frontline/shows/ protect-your-cannabis-brand-with-a-trademark/. from Centre College dope/etc/cron.html. 48. Blevins, Jason. “Pot Growers Cultivating in the and his M.B.A from 20. Robinson, Rowan. The Great Book of Hemp. at p. 14. Shadows Seek US U.S. Patent Protection.” The Walden University be‑ Park Street Press. Vermont. 1996. Denver Post. 12/26/2014. Also available at: http:// 21. Pub. 238, 75th Congress, 50 Stat. 551 (Aug. 2, www.denverpost.com/potanniversary/ci_27174732/ fore eventually going 1937). pot-growers-cultivating-shadows-seek-u-s-patent. back to school to earn 22. Id. 49. Malsbery, Alison. “Marijuana Licensing his J.D. from the Northern Kentucky Uni‑ 23. Robinson, Rowan. The Great Book of Hemp. at p. Works Well When Done Well.” CannaLaw 14. Park Street Press. Vermont. 1996. Blog. 03/12/2015. Also available at: http:// versity Salmon P. Chase College of Law. 24. Controlled Substances Act, CSA, 21 U.S.C 801 et www.cannalawblog.com/marijuana-licens- Before going to law school he worked as seq.; Title C.F.R. Part 1308.11. ing-works-well-when-done-well/. a financial advisor with Waldell and Reed 25. http://www.dea.gov/druginfo/ds.shtml. 50. Id. 26. http://www.lrc.ky.gov/record/13rs/sb50.htm. 51. U.S.C §881(a)(7). where he helped families with their long 27. KRS 260.850-260.869. 52. Bricken, Hillary. “Real Property Forfeiture for term financial planning goals, specializing 28. Id. Marijuana Tenants: Your Marijuana Leasehold is in asset protection with special needs trusts. 29. Federal Agricultural Act of 2014 Sec. 7606 1 (b). Key.” CannaLaw Blog. September 15, 2014. Also 30. Letter from Commonwealth of Kentucky At- Available at: http://www.cannalawblog.com/as- He currently is the serving vice president of torney General Jack Conway to James R. Comer, set-forfeiture-why-your-marijuana-leasehold-is-key/. the Kentucky Hemp Industries Association Commissioner of the Kentucky Department of 53. Id. Agriculture regarding the marketing hemp projects, 54. Cromble, Noelle. “How Potent are Marijuana and has been an active board member with April 1, 2014. Edibles? Lab Tests Yield Surprising Results.” The the Kentucky Behavioral Health Planning 31. Id. Oregonian. March, 6 2015. Also available at: http:// and Advisory Council over the last six years. 32. Letter providing guidance regarding marijuana www.oregonlive.com/marijuana/index.ssf/2015/03/ enforcement from Deputy U.S. Attorney General how_potent_are_marijuana_edibl.html. Smith opened Campbell & Smith Law, James Cole to all U.S. States Attorneys, August 55. KRS 189A.010. LLC, with his law partner in 2014, where 29, 2013, http://www.justice.gov/opa/pr/2013/ 56. http://www.fda.gov/NewsEvents/PublicHealthFo- his focus is on small business, corporate August/13-opa-974.html. cus/ucm435591.htm. 33. Hemp as Agricultural Commodity, p. 18 quoting 57. Hughes, Trevor. “Federal Drug Regulators Caution counsel, and elder law, which includes VA, to Letter to interested parties from Joe Sandler, Hemp Oil Sellers.” USA Today. March 11, 2015. Medicaid, and special needs planning. Counsel for Vote Hemp, November 13, 2013. Also available at: http://www.usatoday.com/ 34. Hemp as Agricultutural Commodity quoting to 21 story/news/nation/2015/03/11/hemp-oil-warn- ENDNOTES U.S.C. 951-971. Letter from Joseph T. Rannazzisi, ings/70161114/. Deputy Assistant Administrator, DEA Office of 58. http://www.fda.gov/newsevents/publichealthfocus/ 1. Kentucky Department of Agriculture. http://www. Diversion Control to Luke Morgan, Counsel for ucm421168.htm#dietarysuppl. kyagr.com/marketing/history-of-hemp-in-Ken- Kentucky Department of Agriculture, May 13, 59. Id. tucky.html. 2014. 60. Sullum, Jacob. “Marijuana Money is Still a Pot of 2. Kentucky Bureau of Agriculture, Labor and Statis- 35. Kentucky Department of Agriculture v. U.S. Drug Troubles for Banks.” Forbes. September 18, 2014. tics, Report, 1900-1901, p.332. Enforcement Agency, U.S. Customs and Border Also available at: http://www.forbes.com/sites/jacob- 3. P.135 The Great Book of Hemp Rowan Robinson. Protection, U.S. Justice Department, and Eric sullum/2014/09/18/local-banks-terrified-by-friend- Robinson, Rowan, The Great Book of Hemp, p. Holder (Western District of Kentucky, Louisville ly-neighborhood-marijuana-merchants/.

BENCH & BAR | 9 Features:POTPOURRI

SCOPE OF DISCOVERY–OUT WITH THE subject matter involved in the action. Relevant information OLD AND IN WITH THE NEW need not be admissible at trial if the discovery appears While discovery in civil cases is certainly a fluid process, rather than reasonably calculated to lead to the discovery of admissible one governed by hard and fast, bright-line rules, upcoming changes evidence. All discovery is subject to the limitations imposed to the Federal Rules of Civil Procedure may impose greater restric- by Rule 26(b)(2)(c). tions than most practitioners are accustomed to under the current version. On Dec. 1, 2015, amendments to the Federal Rules of Civil Lawyers handling civil cases must be prepared for this change and Procedure officially go into effect, including a momentous change what it means for their cases, even if they do not practice predom- to Federal Rule 26(b)(1)—which dictates the scope of discovery inantly in federal courts. For litigants who are concerned about for the parties—as follows:1 the current expense and time associated with the broad scope of discovery prevalent in current practice, the proportionality language (b) Discovery Scope and Limits and the factors set out to guide a court’s consideration of a particular (1) Scope in General. Unless otherwise limited by court request appear to address those concerns. Other litigants may view order, the scope of discovery is as follows: Parties may the new changes as daunting when facing opponents who have obtain discovery regarding any nonprivileged matter that better access to the relevant documents. But what do the changes is relevant to any party’s claim or defense and proportional really mean for those of us in the trenches? Will the changes really to the needs of the case, considering the importance of the be a stark departure from how we have litigated cases for decades? issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ Importantly, the bedrock principle that has long governed what is resources, the importance of the discovery in resolving the discoverable—“if the discovery appears reasonably calculated to issues, and whether the burden or expense of the proposed lead to the discovery of admissible evidence”—will no longer be discovery outweighs its likely benefit. Information within the standard. Instead, the new standard for the scope of permissible this scope of discovery need not be admissible in evidence discovery involves a proportionality test to balance the following to be discoverable. including the existence, description, factors: a) the importance of the issues at stake in the action; b) nature, custody, condition, and location of any documents or the amount in controversy; c) the parties’ relative access to relevant other tangible things and the identity and location of per- information; d) the parties’ resources; e) the importance of the dis- sons who know of any discoverable matter. For good cause, covery in resolving the issues; and f) whether the burden or expense the court may order discovery of any matter relevant to the of the proposed discovery outweighs its likely benefit. None of

10 | NOVEMBER/DECEMBER 2015 these concepts is new to us and it is likely we have encountered prominence to the importance of the issues and avoids any impli- proportionality factors before in one context or another. What is cation that the amount in controversy is the most important new is that these factors are now the defined guideposts for deter- concern.”10 The Committee has cautioned that “monetary stakes mining what a party may and may not obtain through discovery are only one factor, to be balanced against other factors.”11 in federal cases. Recognizing the fact that parties in litigation do not always start off The impetus for the change in the Federal Rules began when, at on a level playing field, the Committee also added to the proportion the request of the Standing Committee on Rules of Practice and ality analysis a consideration of “the parties’ relative access to relevant Procedure, the Advisory Committee on Civil Rules sponsored a information.” The Committee included this factor to “address[] the conference at Duke University School of Law in May 2010. The reality that some cases involve an asymmetric distribution of infor‑ purpose of the conference was to “explore the current costs of civil mation. Courts should recognize that proportionality in asym‑ litigation, particularly discovery, and to discuss possible solutions.”2 metric cases will often mean that one party must bear greater A major portion of the Conference was “devoted to an assessment burdens in responding to discovery than the other party bears.”12 and discussion of the empirical research,” conducted by the Federal Thus, it is not simply a numbers game, and the fact that one party Judicial Center.3 According to the Conference’s Report, persistent may be required to produce large numbers of documents in con- costs, delays, and burdens in civil litigation in the federal courts trast to the other party’s small production obligation does not, in needed to be addressed.4 itself, render the discovery disproportionate to the needs of the case. Likewise, courts are directed to consider the parties’ respective During the years following the conference, a number of initial resources (including the ability to obtain the information by some amendments were proposed and considered. The Committee pub- other means) when considering the appropriateness of a discovery lished the initial proposed amendments in August 2013.5 During request. the six-month comment period, over 2,000 comments came in, many disapproving of some of the more severely limiting proposed The Committee specifically addressed the concerns of many who amendments, including: commented that the new amendments would shift the burden of proving proportionality to the party requesting discovery. Impor- • Reducing the number of depositions from 10 to 5; tantly, the drafters have stated that the proportionality test should • Reducing the number of interrogatories from 25 to 15; not change existing discovery obligations and is designed only to enhance the discovery process, making it more meaningful and • Reducing the number of requests for admission from no less costly: limit to 25; and • Reducing the time limit for depositions from seven to The Committee considered carefully the concerns expressed in six hours per day.6 public comments: that the move will shift the burden of proving proportionality to the party seeking discovery, that it will In April 2014, due to the overwhelming disfavor of these proposals, provide a new basis for refusing to provide discovery, and the Committee abandoned the initial proposed limits on certain that it will increase litigation costs. None of these predicted discovery methods. The new proposed amendments, which will outcomes is intended, and the proposed Committee Note has take effect December 2015, are much less severe and subject to been revised to address them. The Note now explains that the much more discretion based on the circumstances of the case. For- change does not place a burden of proving proportionality on tunately, the drafters have provided extensive guidance for parties the party seeking discovery and explains how courts should and courts involved in discovery disputes under the new rule. apply the proportionality factors. The Note also states that the change does not authorize boilerplate refusals to provide By changing the cardinal principle guiding the scope of discovery discovery on the ground that it is not proportional, but should and imposing a proportionality test, the drafters of the amendments instead prompt a dialogue among the parties and, if neces- had three goals in mind: “increased cooperation; proportionality in sary, the court, concerning the amount of discovery reasonably using procedural tools, most particularly discovery; and early, active needed to resolve the case. The Committee remains convinced judicial case management.”7 The amendment retains the caveat that that the proportionality considerations will not increase the information need not be admissible to be discoverable. Under the cost of litigation. To the contrary, the Committee believes that amendment, “[d]iscovery of nonprivileged information not admis- more proportional discovery will decrease the cost of resolving 13 sible in evidence remains available so long as it is otherwise within disputes without sacrificing fairness. the scope of discovery.”8 According to the Committee’s notes, the language under the former rule created problems but eliminating Ultimately, the Committee felt its three goals would be best served it does not substantively alter the scope of discovery.9 by including the proportionality analysis to determine what information may be discoverable. DECIPHERING THE “NEW” PROPORTIONALITY ANALYSIS PUTTING THE PROPORTIONALITY ANALYSIS IN PLAY The proportionality analysis is not entirely new, as it was previously found at Rule 26(b)(2)(C)(iii); however, the factors have been While these changes do appear significant, the actual impact of rearranged. As the drafters noted, “[t]his rearrangement adds these changes in the day-to-day practice in Kentucky cannot be

BENCH & BAR | 11 Features:POTPOURRI

known until the amendments take effect and become the rule in A. Layne Stackhouse is a litigation associate at federal courts. There are no known immediate plans to revise Shrader & Associates, L.L.P., a leading national Kentucky Rule of Civil Procedure 26 to remove the “reasonably law firm in Houston, that represents individuals calculated to lead to discovery of admissible evidence” standard injured by toxic substances and defective prod- on which we have all come to rely. However, that does not mean ucts. Stackhouse’s practice focuses on litigating that practitioners around the state will not face a proportionality claims brought by individuals injured by de- challenge when seeking discovery even in state court actions as fective medical devices and dangerous drugs. the proportionality analysis gains steam in federal practice. In Prior to her position at Shrader & Associates, Kentucky state court practice, “most discovery disputes concern the Stackhouse worked at Jones Ward PLC, a mass application of settled law at the discretion of capable trial judges.”14 torts firm in Louisville. Stackhouse graduated from Loyola Univer- This discretion already allows for the consideration of proportion- sity School of Law in New Orleans in 2010, and began her practice ality factors in appropriate cases.15 in Kentucky after passing the Kentucky bar in 2011. Stackhouse can be reached at [email protected]. In federal courts, one can expect that proportionality challenges will become the norm, much like the objections on the grounds of undue burden currently seen in practice. However, if the Com- ENDNOTES mittee’s Notes are considered, the changes may not be as restrictive 1. See Proposed Amendments to the Federal Rules of Civil Procedure, p. 12, as suggested by some. But despite the directives set forth in the available at http://www.supremecourt.gov/orders/courtorders/frcv15_5h25. pdf, approved by the Supreme Court earlier this year. This article assumes Committee’s Note, uncertainty remains as to how courts actually no congressional intervention before the effective date of Dec. 1, 2015. will interpret proportionality when faced with specific challenges. 2. See http://www.uscourts.gov/rules-policies/records-and-archives- rules-committees/special-projects-rules-committees/2010-civil. As noted, the increased cost of litigation was one of the reasons 3. Id. behind the changes in the first place. Accordingly, if proportionality 4. See Report to the Chief Justice of the United States on the 2010 Confer- ence on Civil Litigation, submitted by the Judicial Conference Advisory objections require a lengthy evidentiary hearing, litigants will want Committee on Civil Rules and the Committee on Rules of Practice to point out to the Courts that frivolous objections can actually and Procedure, available at http://www.uscourts.gov/rules-policies/ cause higher litigation costs to all parties, increased burdens on records-and-archives-rules-committees/special-projects-rules-commit- the court, and slower-moving dockets. Courts will presumably tees/2010-civil. 5. G. Campbell, Chair, Advisory Comm. on Civil Rules to Hon. Jeffrey S. see through boilerplate objections while fairly addressing the pro- Sutton, Chair, Comm. On Rules of Practice and Procedure to the Bench, portionality factors to determine how the discovery requested will Bar, and Public, Report of Advisory Comm. on Civil Rules (May 2, 2014). advance the litigation. 6. Report of the Judicial Conf. Comm. on Rules of Practice and Procedure, 110, 118 (Sept. 2014), Fed. R. Civ. P. advisory comm. n. (2015 pending). In summary, Kentucky attorneys practicing in federal court will face 7. Id. 8. See Memo. From Hon. David G. Campbell, Chair, Advisory Comm. on the the amended federal rule Dec. 1, 2015. The amended federal rule Fed. R. Civ. Procedure to Hon. Jeffrey S. Sutton, Chair, Standing Comm. can be expected to impact state court practice as well. Whether on the Fed. R. of Civ. Procedure, Proposed Amendments to the Federal Kentucky ultimately adopts some or all of the changes found in the Rules of Civil Procedure, App. B-8 (June 14, 2014). new federal rules governing discovery remains to be seen. While it 9. Id. 10. See Memo. From Hon. David G. Campbell, Chair, Advisory Comm. is true that Kentucky courts often do look to federal law to interpret on the Fed. R. Civ. Procedure to Hon. Jeffrey S. Sutton, Chair, Standing its own rules, there are many situations where Kentucky has not Comm. on the Fed. R. of Civ. Procedure, Proposed Amendments to the adopted the federal counterpart or does not follow federal law Federal Rules of Civil Procedure, App. B-8 (June 14, 2014). interpreting the Rules.16 Thus, litigants in state court can remain 11. Id. 12. Id. confident in seeking discovery that is “reasonably calculated to lead 13. Id. (emphasis added). to the discovery of admissible evidence,” because that is the lan- 14. Caldwell v. Chauvin, 464 S.W.3d 139, 148 (Ky. 2015). guage of CR 26,17 but parties should be aware that the judicial 15. See, e.g., Primm v. Isaac,127 S.W.3d 630, 634 (Ky. 2004), (“the mere fact discretion to control discovery in state court practice may be influ- that such information may fall within the scope of discovery [articulated in CR 26] does not mean that parties are entitled to unfettered discovery… by enced by the federal changes. For all of these reasons, Kentucky whatever means they seek”). practitioners will want to become familiar with these amendments 16. For example, compare FRCP 30(a)(2) regarding limitations as to the and the reasons behind them. number and length of depositions in federal court, with CR 30, imposing no such limitations in Kentucky. Also compare, FRCP 26(a)(2)(B) ABOUT THE AUTHORS requiring experts to provide a written, signed report, with CR 26 requiring only a summary of the expert’s opinions in Kentucky. See also, E. Kenly Leslie M. Cronen is a partner in the Louisville Ames, Pleading Claims in Kentucky State Court After Twombly And office of Bubalo Goode Sales & Bliss PLC. Iqbal, Bench and Bar Magazine, July 2015, at 25 (discussing the different Her practice is focused on representing indi- standards and interpretations despite identical Federal and Kentucky Civil Rules of Procedure regarding pleadings and motions to dismiss). viduals injured by defective drugs and medical 17. CR 26.02(1) devices. She is actively involved in litigation in both state and federal courts across the country. Cronen received her B.A. and her J.D., cum laude, from the University of Louisville. She can be reached at [email protected].

12 | NOVEMBER/DECEMBER 2015 The Kentucky Bar Association is proud to offer Casemaker’s suite of premium services at no additional cost to our members.

Now, Kentucky Bar Association members have access to not only Casemaker’s broad and comprehensive libraries which cover all 50 states and Federal level materials - but members also have access to a suite of tools that make research faster and easier.

A negative citator system that lets you know instantly if the case you’re reading is still good law. CaseCheck+ returns treatments instantly as you research. Link to negative treatments and quickly review the citation history for both state and federal cases.

Upload a brief or pleading and within 90 seconds Casemaker will provide a report stating whether your case citations continue to be good law.

CasemaDaily summary of appellateke decisionsrDigest for all state and all federal circuits, categorized by subject. Casemaker Digest will email or send you an RSS feed of the latest cases in your selected jurisdictions and subject areas of interest.

To learn more about Casemaker and the tools available to you as a Kentucky Bar Association member, call Customer Support at 877.659.0801

www.casemakerlegal.com Features:POTPOURRI SUPERFUND IN KENTUCKY IV: UNCONTROLLED SITES IN KENTUCKY; where we are and how we got here

By Ronald R. Van Stockum, Jr.

INTRODUCTION For the modern history of “environmental law,” as that phrase is History is a teacher that gives its student knowledge and under- used in this article, one would be well served to review the presi- standing in the development of the otherwise confusing panoply dency of Republican Richard M. Nixon to find a basis for many of of laws dealing with a given subject. So it is with environmental our environmental programs. For it was President Nixon, in the law.1 Although earlier regulation of pollution resulted from “big throes of an unpopular war in Vietnam and the cultural revolution picture,” “common sense” coordination of daily activities, our system of the 1960s, who sought a populist position to unite the country, of environmental law in the United States arguably begins with the one based on the development of new policies and statutes to pro- River and Harbors Act of 1899.2 Originally enacted to control ship tect the environment.5 As described below, we deal herein with waste, bilge, and ballast in the nation’s harbors, its basic element of the development of modern waste management laws in Kentucky, strict liability continues to be an essential element in the control specifically those involving “hazardous substances” and abandoned of contaminated properties through the modern Comprehensive or uncontrolled contaminated properties. Environmental Compensation and Liability Act of 1980 (CERCLA, referred to herein as Superfund), as interpreted by reference to the One of the first federal environmental laws of the modern envi- federal Clean Water Act Amendments of 1972.3 ronmental era, the Clean Air Act of 1970, had been passed into law to address the obvious and acute health effects of air pollution HISTORY in our expanding cities and industrial complexes.6 It became the As the American population grew and spread west, it encountered prototype of the federal “command and control” statutes enacted for conflicts regarding the use of natural resources such as water, timber, protection of the environment in the last half of the twentieth cen- and mineral wealth. Bodies of law developed around those issues tury. Both the federal Water Pollution Control Act amendments and play out today in laws regulating public lands, freshwater ripar- of 1972 (the Clean Water Act) and the Resource Conservation and ian rights, and mining rights. They are, however, to a great extent Recovery Act of 1976 (RCRA) were modeled in similar fashion.7 “natural resource” and “conservation” issues rather than what might be All three of these federal statutes allowed states to be authorized distinguished as “environmental” issues, i.e. ones involved with pol- to operate their own air, water, and waste programs if consistent lution. Accordingly, one might consider Theodore Roosevelt as with, and subject to, the approval of federal officials administrating the political founder of the “conservation” movement in the United these national laws. States rather than as an “environmentalist.” Many American presidents since have left office sounding the trumpet of “environmen- Not so Superfund. By 1980, the date of Superfund’s passage, several talism,” but actually acting as “conservationists,” setting aside more important global and domestic political events had intervened to federal lands with development and use restrictions.4 abruptly halt the environmental “revolution” in America.

14 | NOVEMBER/DECEMBER 2015 President Nixon invoked the Rivers and Harbors Act to require were specified in the legislation itself, however inartfully.14 A prime permits for the discharge of waste into navigable waters.8 But in example is RCRA, which by statute required regulations concerning 1972, when Congress attempted to codify the President’s actions, hazardous wastes to be promptly issued according to a statutory the President vetoed the legislation as too costly.9 mandate. But those regulations were not issued until 1980, under a federal court order to do so. During this time, public outrage In 1973, Egypt and Syria attacked lands occupied by Israel after the concerning the discovery of abandoned “dumps” of hazardous 1967 “Six Days War.” This war, labeled the “Yom Kippur War” for chemicals was being fueled by investigative reports in the press. the date of its initiation, lasted 21 days in October 1973. In that Indeed, Kentucky’s “Valley of the Drums” in Bullitt County, Ky., month, the Arab-dominated Organization of the Petroleum Ex‑ became an EPA and media highlight because of the great numbers porting Countries (OPEC) established an oil embargo against the of barrels spilling out brightly colored wastes.15 United States and the European nations supporting Israel. World economies dropped into recession as oil prices rose drastically. In Environmental and political forces converged in 1980 with the the mind of the public, concerns about the price of gasoline came passage of Superfund and the promulgation of RCRA regulations. to eclipse the goals of environmental protection. Both the Superfund statute and the RCRA regulations required the notification of the existence of “hazardous substance” and “hazard- Regardless, there was still enough momentum in the environmental ous waste” disposal sites. Additionally, RCRA required notification movement to pass an ambitious scheme to regulate the management to the EPA of the handling of hazardous wastes. 16 The impact of and disposal of hazardous waste. Enacted in 1976 was the Resource such notifications, the discovery of even greater numbers of “open Conservation and Recovery Act (RCRA).10 An additional statute, dumps” in the nation, and the quantities of “hazardous waste” “The Toxic Substance Control Act” dealing with “toxic substances,” generated in industrial facilities was startling. That information was also passed in 1976, spurred on, in part, by PCB tainted cooking inaugurated the great surge in the environmental regulation and oil in Japan.11 enforcement that this nation experienced throughout the 1980s. Even President Reagan, seldom regarded as an environmental advo- In 1979, Iranian revolutionaries deposed the Shah of Iran, creating cate, could not ignore the tide of public outrage. He signed the an Islamic Republic headed by Ayatollah Khomeini. Workers at even more stringent Superfund amendments in 1986.17 the American Embassy in Tehran were taken hostage and another oil crisis ensued, again triggering recession. The price of a barrel of PUSH-BACK oil almost doubled from the high during the Yom Kippur War. As a By the 1990s, the impact of such pervasive environmental regu- result, Republican Ronald Reagan rode a wave of public discontent lation, and the exorbitant cost of cleanup, resulted in a significant into the presidency. Soon thereafter, oil prices began to decrease, push-back from the regulated community. Surprisingly, the election and global economies would slowly rebound. The price of a barrel of the environment-friendly administration of Democrat Bill Clin- of oil would remain relatively low and stable until the destruction ton, with the environmentalist Al Gore as Vice President, gave way of the World Trade Center towers on Sept. 11, 2001. From that to a new consensus approach to regulation. In 1995, the House of date until the beginning of the “Great Recession” in 2007, the price Representatives with a newly-elected Republican majority began of oil generally rose.12 an effort to limit the impact of environmental regulations and their enforcement.18 It was during these times of social and economic turmoil that Superfund was passed in 1980. Superfund was signed into law in Even given the political impetus to ease environmental regulation, the waning days of the administration of Democratic President there remained a substantial public interest in protecting the envi- Jimmy Carter. A democratically controlled congress passed this ronment. That interest continues into the contemporary world, as most unusual and stringent piece of environmental legislation prior exemplified by the farm-to-table and organic-food movements, to a change in party control of the Senate, and before the advent the opposition to genetically modified organisms (GMOs), and of a conservative republican administration. In their rush to pas- the widespread concern about climate change. sage, Congress cobbled together the House and Senate versions of Superfund legislation that would deal with abandoned sites and As a result, there has not been a significant effort to roll back major “hazardous substances.” environmental regulation.19 Instead, some have argued against the full funding of state and federal agencies tasked to enforce the Superfund, far from being a source of public funding for the cleanup legislation.20 In addition, the Kentucky legislature has acted to of contaminated private property, introduced a stringent package effect greater oversight of the promulgation of regulations by the of liability and injunctive provisions, including strict liability and Kentucky Department for the Environment.21 joint and several liability. It gave injunctive powers to the government with limitations on judicial review. Draconian penalties were In 1995, Kentucky Democratic Governor Paul Patton brought provided for failure to comply.13 significant change to the Natural Resources and Environmental Protection Cabinet (NREPC) through the appointment of James Congress had lost faith in the ability of the executive branch and the Bickford as Secretary.22 In 2004, Republican Governor Ernie states to administer environmental programs. As a result, Super- Fletcher combined the NREPC, the Labor Cabinet and the Public fund was not to be delegable to the states, and many provisions Protection Cabinet into a single new Cabinet, the Environmental normally left to the executive branch to particularize by regulation and Public Protection Cabinet (EPPC).23 Then in 2008, Democratic

BENCH & BAR | 15 Features:POTPOURRI

Governor Steve Beshear reorganized the EPPC again. First he Tony Hatton is Director of the Division of Waste Management. established a new Department of Energy Development and Inde‑ There are currently 238 employees in the Division of Waste Manage‑ pendence into which he moved the Governor’s Office of Energy ment, which is broken into seven branches: Program Planning and Policy. Then he broke apart the EPPC, and brought the NREPC Administration, Solid Waste, Hazardous Waste, Superfund, Recy- together with the Department of Energy Development and Inde‑ cling & Local Assistance, Field Operations, and the Underground pendence into another new Cabinet, the “Energy and Environment Storage Tank Branch.30 April Webb is manager of the Hazardous Cabinet.” This merger of energy development and environmental Waste Branch, Danny Anderson is manager of the Solid Waste protection has led to intriguing litigation positions taken by the Branch, and Edward Winner is manager of the Underground Stor- Commonwealth and its environmental agencies in federal court.24 age Tank Branch.

The result of these developments, the rising cost of government Larry Hughes is manager of the Superfund Branch, which consists supervision, and periodic fiscal crises in the Commonwealth have of five sections: Maxey Flats, Risk Assessment, Petroleum Cleanup, left the Kentucky Department for the Environment with limited federal Superfund, and state Superfund. Ron Lovitt heads up the funds and a reduced staff.25 Accordingly, and in light of the eco- Petroleum Cleanup Section, Sherri Adkins the Federal Superfund nomic need for the revitalization of abandoned or underutilized Section, and Cliff Hall the state Superfund Section. There are app‑ properties, Kentucky has embraced the concept of “brownfields” roximately 27 employees in the Superfund Branch. in managing contaminated properties within the Commonwealth. While cognizant of its duties to enforce the law, the Cabinet has The Division of Compliance Assistance deals with brownfields. promoted a cooperative attitude with owners of contaminated prop- Its Director is Larry Taylor. Some of Kentucky’s Brownfield Re‑ erties willing to restore them to productive uses.26 development Programs are dealt with by Amanda LeFevre and Herb Petitjean of that division. Jeff Cummins is the Director of BROWNFIELDS Enforcement. The contamination of land is arguably different than that of air and water. Air pollution and water The staff attorneys in the Energy and Environment Cab‑ contamination generally move off the property inet have recently been reorganized and centralized. where they are generated, and into the public There are approximately 30 attorneys in the Cabinet “commons” of breathable air and drinkable water. led by the Office of General Counsel, C. Michael Significant public and private litigation continue Haines, Executive Director, and Diane S. Fleming, to confront the consequences of such migrating Deputy Executive Director. There are four branches air and water contamination, and the government’s within the Office of General Counsel, each with be‑ attempt to address it. tween five and nine attorneys: Investigations and Support, Don Hamm, Manager; Litigation Branch 1, J. Contamination in the ground (assuming no contamin‑ Michael West, Manager; Litigation Branch 2, Virginia ation in, or limited migration of, groundwater) is arguably Baker-Gorley, Manager; and Litigation Branch 3, Jackie contained. Unless such contamination otherwise generates action‑ Quarles, Manager.31 The staff attorneys are no longer assigned able air pollution emissions or unacceptable risks to those on the specific divisions within the Cabinet as areas of concentration. property, it can be said to involve the rights and duties of an owner’s private property. In the United States, private ownership KENTUCKY SUPERFUND BRANCH of property is protected both by the United States Constitution The Division of Waste Management, Superfund Branch, currently and common law.27 Therefore, when contamination is not migrating addresses many of the issues involving uncontrolled contaminated off-site, it is attractive to argue that such contamination is a private properties in Kentucky. It depends on a diverse number of funding property issue that can be managed privately on-site. This is the mechanisms to address sites that require cleanup, management, view developed in the older industrialized nations of Europe and and oversight. the view that the United States has now, in greater part, adopted in its brownfield programs.28 Superfund Branch activities fall generally into the following categories. 29 KENTUCKY’S ENVIRONMENTAL AGENCY A. State lead sites without solvent potentially responsible The Department for Environmental Protection is housed in the parties (PRPs) which are not federal sites; the Division Energy and Environment Cabinet. Dr. Len Peters was appointed uses Kentucky Hazardous Waste Management Fund Secretary of the Energy and Environment Cabinet in 2008. Bruce (HWMF) monies. Scott has been the Commissioner of the Department for Environ- B. State lead sites with active PRPs. This involves state mental Protection since 2008, having previously served in various technical oversight and review with solvent parties and capacities within the Department of Environmental Protection are not federal sites. since 1983. The total number of employees at the Department of Environmental Protection is capped at 759 employees spread C. No Further Response Actions Planned (NFRAP, as among six divisions: Air Quality, Waste Management, Compliance determined by EPA) Sites. These are reviewed by the Assurance, Enforcement, and Water and Environmental Program Division with federal funding, approximately 10 sites per year. Support.

16 | NOVEMBER/DECEMBER 2015 D. Kentucky Emergency Response Team Notifications. projects. Additionally, there are numerous sites where viable E. Characterization and Remediation of State Superfund responsible parties are conducting cleanups and the HWMF Sites. (See KRS 224.1-400). supports the necessary regulatory oversight...” (Division of Waste Management Annual Report, 2014). F. Sites with waste managed on-site through an environ‑ mental covenant or deed restriction. (See KRS 224 sub The Kentucky Division of Waste Management generally describes chapter 80) “The Kentucky Voluntary Cleanup Program” as follows:34 G. Environmental Emergencies. 1. Self-Certified Cleanup H. The Methamphetamine Cleanup Program. (See KRS (a) KRS 224.1-400, specifically (19) 224.01-410). (b) Minor Releases (refer to statute) or Release Authorized I. Vapor intrusion can be addressed by both the Superfund by Permit Branch and the Underground Storage Tank Branch of (c) Least Complex the Kentucky Division of Waste Management. (d) No Liability Protection Offered J. The Brownfield Program in Kentucky is jointly addressed 2. Notice of Completion of (KRS 224.1-400) Cleanup by the Division of Waste Management and the Division (a) KRS 224.1-400, KRS 224.1-405 of Compliance Assistance. (b) Any Party (Private or Public) (c) More Complex Much of the Superfund Branch’s funding comes from a tax on (d) Issuance of Notice of Completion Letter hazardous waste generation in the state. The Hazardous Waste Management Fund (HWMF) was created by the 1980 Kentucky 3. No Further Remediation Cleanup Legislature.32 It currently assesses a fee of $0.012 per pound of (a) Generally KRS 224.1-450 through KRS 224.1-465 hazardous waste generated in the Commonwealth (See KRS.224- (b) Public Entities Only (City, County, State, or Federal) 46-580 (8)). As of 2014, the fee had provided approximately (c) More Complex $70 million to the Division of Waste Management, which was (d) Issuance of a No Further Remediation Letter spent addressing approximately 550 contaminated properties. In 4. Voluntary Environmental Remediation Program (VERP) addition, more than $7.7 million of the HWMF has been pro- Cleanup vided to the Kentucky Pollution Prevention Center (KPPC).33 A (a) Relevant Statute(s), see generally KRS 224.1-510 through minimum balance of $1.8 million is maintained by fund transfer KRS 224.1-532. from the Petroleum Storage Tank Environmental Assurance Fund (b) Covenant Not to Sue

(PSTEAF). The HWMF supports activities such as: THE VERP a. Emergency response There are a number of important Kentucky statutes and regula- b. Removal projects less than $20,000 tions relating to waste cleanups in Kentucky. They include the c. Site Assessment and Remediation at Site with no viable PRPs Kentucky Voluntary Environmental Cleanup Program (VERP), KRS 222.1-510 through KRS 224.1-532. The VERP statutes, with d. Technical oversight costs for cleanups of sites with viable one exception, have been rarely used. To date, there have been only PRPs four VERP applications received, and the Division has yet to issue e. Technical oversight of environmental emergencies a “Covenant Not To Sue” pursuant to the program. Tony Hatton, Kentucky Division of Waste Management Director, recently described the importance of the HWMF: There is one VERP statute, however, KRS 224.1-530 entitled “Screening Levels Relating to Remediation Requirements ...,” that “The hazardous waste management fund (HWMF) is the sole is frequently utilized. Section (1) of that statute states in part: source of funding for emergency response and state-lead remediation. Contaminated sites can range from large industrial “Notwithstanding any provision of law or administrative site projects and dry cleaners to small projects such as roadside regulation to the contrary, the numerical values contained in drums, orphan wastes and transformers. the most current version of the document titled “Regional Screening Level (RSL) Table” published by the United States The HWMF is the Commonwealth’s only fail-safe mechanism Environmental Protection Agency’s Region 3 as of June 8, for addressing contaminated sites where there is no responsible 2011, are hereby established as screening levels and shall be or viable party to take action. Failure to act at these sites could used by the cabinet in conformance with the guidance set out result in harm to human health and natural resources of the in the Risk-Based Concentration Table User’s Guide. It is Commonwealth. There are no other available funding sources not the intent of this section to establish these levels as the to conduct emergency response, state-lead cleanup actions, or cleanup standards for individual contaminants that may be present at any site...” (Emphasis added). regulatory oversight. This statute references EPA’s regional screening levels routinely There are currently 17 known sites requiring remedial actions utilized by industry and the Cabinet as cleanup targets. However, that will result in significant expenses to the HWMF. Over a close reading of the statute’s language reveals potential issues in 300 additional sites have been identified as potential state-lead doing so, considering the application of guidance documents, and

BENCH & BAR | 17 Features:POTPOURRI

the limitation of these numbers for “screening” purposes only. In confidence that the Division supports responsible redevel- addition, the use of updated federal screening level tables may be opment and can and will provide liability relief to persons problematic. who qualify under the new law… The Division continues to implement its core responsibilities of… continuing the closure THE “STATE SUPERFUND” and remediation of historic landfills, superfund sites, hazardous KRS 224.1-400 is often, and erroneously, referred to as the “State waste sites and underground storage tank facilities…” Anthony Superfund Statute.” Originally passed in 1980, it is now a com- R. Hatton, P.G. Director. pilation of various statutory provisions relating to “hazardous substance,” “pollutant” and “contaminant” liability, defenses to such The statute described above, KRS 224.1-415, is entitled, “Brown- liability, notification provisions, and cleanup requirements. field Redevelopment Program—Conditions Under Which Property Owner is Not Liable for Corrective Action—Administrative Reg- The cleanup options are described in Paragraph 18 and require ulations.” It provides that an owner of real property shall not be characterization. They include: liable for the characterization or correction action for a release of petroleum or a hazardous substance, pollutant, or contaminant “(a) Demonstrating that no action is necessary to protect otherwise required by KRS 224.01-400 and KRS 224.01-405 if human health, safety and the environment. the owner certifies and the Cabinet finds that: (b) Managing the release ... may include any existing or 1) “The release occurred prior to the property owner’s proposed engineering of institutional controls and the main- acquisition tenance of those controls. 2) The property owner made all appropriate inquiries into (c) Restoring the environment through the removal of the haz- previous ownership and uses ... ardous pollutant or contaminant ...” (KRS 224.1-400 (18)).35 3) ... has provided all legally required notices ... There are reporting requirements for the release of reportable quan- 4) ... is in compliance with all land use restrictions ... and will tities of hazardous substances, pollutants, and contaminants, and not impede any institutional control ... requirements for Cabinet supervision of a cleanup unless the release 36 5) ... complied with any information requests ... is less than those levels. 6) ... the owner is not and has not been affiliated with anyone In addition, KRS 224.1-400 (25) states, “Defenses to liability, potentially liable ... through ... direct or indirect familial rela- limitations to liability and contribution shall be determined in tionship ... any contractual, corporate, or financial relationship accordance with [certain sections] of the Comprehensive Environ‑ ... or reorganization of a business entity that was potentially mental Response Compensation and Liability Act [Superfund], liable; and as amended, and the federal Clean Water Act ...” That provision 7) The property owner has not caused or contributed to the allows for utilization of certain federal Superfund protections in release.” (KRS 224.1-415 (2)) state actions. Arguably, it allows use of the Bona Fide Prospective Purchasers (BFPP) provision added by the federal Small Business Note, however, that compliance with this statute only applies to Liability Relief and Brownfields Revitalization Act.37 That fed- liability to the State and does not necessarily qualify one for similar eral provision shields prospective purchasers from federal cleanup protection under the federal Superfund. liability for the release of hazardous substances, pollutants, and contaminants that they did not cause if they used “all appropriate The Cabinet has provided a simplified application form through inquiry” assessment procedures prior to purchase.38 which to seek its concurrence that the future use of the property will not interfere with remediation or increase risks to human health KENTUCKY BONA FIDE or the environment. As of January 28, 2015, there were 61 Notices PROSPECTIVE PURCHASERS of Eligibility issued and 42 Notices of Concurrence granted by the Kentucky statutes did not explicitly provide for bona fide prospective Cabinet. Regulations implementing this statute can be found at 401 purchaser protection. Such a statute, however, was written into law KAR 102:010 entitled, “Brownfield Redevelopment Program” and in 2012 and codified as KRS 224.01-415. The following is an excerpt 401 KAR 102:020, “General Requirements for a Property Man- from the Kentucky Division of Waste Management Annual Report, agement Plan for Brownfield Redevelopment Program.” Fiscal Year 2012. It explains the Cabinet’s logic in supporting the ADDITIONAL STATUTES statute’s passage: There is also a “brownfields” program available to public entities. “… The passage of this Bill signifies the Agency’s willing- It is codified in KRS 224.01-450 through 224.01-465. There has, ness and desire to continue supporting the redevelopment of however, been only one No Further Remediation Letter (NFR) properties that may have been impacted by the release of con- issued by the Cabinet in 10 years under the program. taminants to soil and groundwater. In essence, the Bill provides for liability relief for persons desiring to purchase and develop KRS 224.1-406 deals with “Corrective Action for Release of Petro- properties when they were not responsible for past releases that leum or Petroleum Product from a Source Other Than a Petroleum may have occurred. While property redevelopment is always Storage Tank.” This statute is necessary because petroleum products primarily driven by economics and location, it is my hope that are generally excluded from coverage under both federal and state this new law will give both redevelopers and financers more

18 | NOVEMBER/DECEMBER 2015 Superfund statutes. They are, however, generally included in the environmental law, and his biologic research in historical phyto‑ benefits offered by BFPP and other brownfields programs.39 geography. Dr. Van Stockum has published numerous articles in the area of law, science and creative writing. KRS 224 Subchapter 80 is entitled “Environmental Covenants.” Such covenants are required by the “management in place” require- ENDNOTES ments of KRS 224.01-400(18)(b). 1. For a history of uncontrolled waste sites in Kentucky, see: Superfund in Kentucky, Van Stockum, Ronald R., Jr., Kentucky Bench and Bar, July CONCLUSION 1984; Superfund in Kentucky II, Van Stockum, Ronald R., Jr., Kentucky Bench and Bar, Spring 1990; and Superfund in Kentucky III, Van Stockum, The history of environmental law as it applies to abandoned or Ronald R., Jr., Kentucky Bench and Bar, September 2002. uncontrolled contaminated properties has evolved. That history is 2. The Rivers and Harbors Act of 1899 § 1-22; 33 U.S.C. 401, et seq. 3. The Comprehensive Environmental Response Compensation and Liability different from the trajectories taken by the air and water programs. Act of 1980 (“CERCLA,” referred herein as “Superfund”). See CERCLA, It represents a passage through idealism, public outrage, stringent 42 U.S.C. § 9601 (32): “The Terms ‘Liable’ or ‘Liability’ under this subchap- enforcement, economic reaction, stagnation, and now renewal. To ter shall be construed to be the standard of liability that obtains under Sec- a great degree, it addresses contamination based on “acceptable risk” tion 311 of the federal Water Pollution Control Act (33 U.S.C. 1321).” See also, United States v. Burlington Northern and Santa Fe Railway Company, rather than rigid adherence to prescriptive regulation. Yet much 40 479 F. 3d 1113 (9th Cir. 2007). work is left to be done to address contaminated sites in Kentucky. 4. Democratic President Bill Clinton set aside almost 2 million acres of federal land in Utah as the Grand Staircase-Escalante National Monument. Let the reader be aware, then, that just as in the European system, Republican George W. Bush designated almost 200,000 square miles in three areas in the Pacific Ocean as National Monuments: The Marinas Ma- contaminated properties will continue to be compromised assets, rine National Monument, The Pacific Remote Islands National Monument, sold and transferred with some subject to risk-based analysis, insti- and The Rose Atoll Marine National Monument. tutional controls, and deed restrictions. Contamination on these 5. President Richard M. Nixon signed the National Environmental Policy properties, unless ameliorated through natural attenuation, will Act of 1969 on Jan. 1, 1970. He established the Presidential Council on the Environment within the White House. He formed the Environmental continue to exist. Protection Agency in December of 1970 (Reorganization Plan Number 3, July 9, 1970). He signed the Clean Air Act on Dec. 31, 1970. He signed Over time, and depending on location, the surrounding community the Endangered Species Act on Dec. 28, 1973. Nixon proposed the Safe may change, putting pressure on owners to do additional cleanup Drinking Water Act, which was passed in 1974 and signed by his successor, Republican Gerald Ford (Nixon resigned the presidency on Aug. 9, 1974). and render contaminated properties available to greater economic Nixon also acted as a conservationist by signing, in October 1972, The Ma- uses. Further characterization in a property’s general locale may rine Protection, Research and Sanctuaries Act (The Ocean Dumping Act), raise greater regulatory and community concern. And risk-based and the Marine Mammal Protection Act. cleanup standards may change, altering the protections required to 6. The Clean Air Act, 42 U.S.C. § 7401 et seq. (1970). 7. The Clean Water Act, 33 U.S.C. § 1251 et seq. (1972); The Resource, Con- manage contamination in place. servation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq. (1976). 8. Section 13 of the Rivers and Harbors Act of 1899, known as the “Refuse It is therefore prudent, for any property purchased, to thoroughly Act,” is codified at 33 U.S.C. § 407, and is entitled, “Deposit of Refuse characterize it for the presence of contamination, and provide one- in Navigable Waters Generally.” It reads, in part, as follows: “It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be self with appropriate contract protections to the extent available. It thrown, discharged, or deposited either from or out of any ship, barge, or is also important to recognize that contaminated property, regard- other floating craft of any kind, or from the shore, wharf, manufacturing less of the current owner’s liability, represents valuable capital that establishment, or mill of any kind, any refuse matter of any kind or descrip- may be at risk. It may be cost-effective, therefore, to remediate a tion whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or property at the onset to the fullest extent economically feasible in into any tributary of any navigable water from which the same shall float or order to maximize its value and future marketability. be washed into such navigable water; ...” It was not uncommon in the early 1980s to encounter Corps of Engineer permits based on the Refuse Act. Regardless, the capabilities of the Cabinet have evolved along with 9. President Richard Nixon’s Veto of the federal Water Pollution Control Amendments of 1972 (Oct. 17, 1972). Portions of the veto message state: the challenge of addressing contaminated property. One will find “The pollution of our rivers, lakes and streams degrades the quality of Cabinet personnel cooperative and helpful in examining options American life. Cleaning up the Nation’s waterways is a matter of urgent for redevelopment. concern to me, as evidenced by the nearly tenfold increase in my budget for this purpose during the past four years ... I am compelled to withhold my ABOUT THE AUTHOR approval from ... a bill whose laudable intent is outweighed by its uncon- scionable $24 billion price tag ... spending beyond the level of my budget Ronald R. Van Stockum, Jr., is a lawyer, proposals would exact a price from the consumer in the form of inflated teacher, biologist, writer, guitarist, and living costs, or from the taxpayer in the form of a new federal tax bite, or recently an actor living on his family’s old both.” 10. See Footnote 7, Supra. farm in Shelby County, Ky. 11. The Toxic Substances Control Act of 1976. 15 U.S.C. §§ 2601-2629. In 1968, rice bran oil in Japan became contaminated with polychlorinated He has a B.S. in biology from Santa Clara biphenyls (PCBs) and sold as cooking oil. More than 1,600 people became University, and an M.S. and Doctorate in sick with symptoms called “yusho disease” (rice oil disease). As a result, Japan, in 1973, passed the Law Concerning the Evaluation of Chemical biology from the University of Louisville. Substances and He also has his Juris Doctorate from the Regulation of their Manufacture (Chemical Substances Control Law, No. University of Louisville and practices law 817). from offices in Shelbyville. He concentrates his legal practice in 12. Using inflation adjusted figures to express prices in 2015 dollars, the follow-

BENCH & BAR | 19 Features:POTPOURRI

ing data is generally illustrative of the cost of “Warning: Toxic Waste” in the Louisville 19. There are three significant amendments to a barrel of West Texas Intermediate (WTI): Courier-Journal, Nov. 25-Dec. 4, 1979, and Superfund. The Asset Conservation, Lender Nov. 1970 - $19.95; Feb. 1974 - $51.12; Apr. see the three-part, 11-page investigative report Liability and Deposit Insurance Protection 1980 - $116.37; Mar. 1986 - $27.68; Jan. entitled, “Toxic Time Bomb: Still Ticking” Act of 1996. (Part of the Omnibus Con- 1999 - $18.11; Jan. 2002 - $26.50; June 2008 in the Louisville Courier-Journal, May 24-26, solidations Act for FY 1997, P.L. 104-208), - $146.12; Aug. 2015 - $43.57 (Source, www. 1987. 42 U.S.C. § 9601 (20)(E), (F) and (G); the macrotrends.net, using information from the 16. See 42 U.S.C. § 6930 (RCRA) and 42 U.S.C. Superfund Recycling Act of 1999 (SREA). Energy Information Administration and the § 9603 (CERCLA). (Part of the Consolidated Appropriations Act, Bureau of Labor Statistics). 17. The Superfund Amendments and Reau- P.L. 107-118), 42 U.S.C. § 9627; and The 13. For example, see 42 U.S.C. §§ 9606 and 9613. thorization Act (SARA), Public Law No. Small Business Liability Relief and Brown- 14. A more traditional approach to the implemen- 99-499, Oct. 17, 1986. SARA was four times fields Revitalization Act of 2001, Public Law tation of statutory mandates is for the legis- longer than the original Superfund legisla- No. 107-118, 115 Stat. 2356. lature to provide specific goals in legislation, tion. Anne Gorsuch was President Reagan’s 20. CERCLA originally imposed a tax on the but not specific implementation procedures. first Administrator of EPA in 1981. In 1982, chemical and petroleum industries. A trust Generally, members of the legislature lack she was cited for contempt of Congress for was created in 1980 that collected $3.6 billion the technical expertise and time to do so. her handling of the Superfund Program and over 15 years to address abandoned and un- The Administration can then, with oversight resigned. Additional pressure on the Reagan controlled sites. The tax expired in 1995 and by the legislature, assign implementation of Administration occurred from the indictment was not reenacted. The trust fund ran out of environmental laws to an agency with the of Rita Lavelle, Reagan appointee as Assistant money in 2003. requisite technical expertise to investigate and Administrator for Solid Waste and Emergen- 21. See Legislative Research Commission By and develop regulations. The Administration can cy Response on federal charges of perjury. Through Prather v. Brown, 664 S.W. 2d 907, then propose regulations for review and com- 18. Democratic President Clinton has been (Ky S.Ct., 1984), Patton v. Sherman et al., ments by the public and regulated community. described as a “Third Way, New Democrat.” Franklin Circuit Court, C.A. 01-CI-0060 For an example of the different approaches, He was generally supportive of both social ( January 11, 2002), and KRS 13A.337. see the “Hazard Communication Standard” issues and free enterprise. In 1994, spurred 22. Democrat Paul Patton became Governor in (Worker Right to Know) regulation, 29 CFR on by House Representative Newt Gingrich, 1995 and appointed retired Army Brigadier 1910.1200, promulgated by an administrative the Republican Party secured the House of General James E. Bickford as Secretary of the agency, and the details set out in the federal Representatives, in part, through a campaign NREPC. Bickford required customer rela- statute entitled Emergency Planning and involving the “Contract with America.” The tions training for Cabinet personnel, instituted Community Right-To-Know Act of 1986 new republican majority in the House of a “skunk works” to address a backlog of UST (Community Right-To-Know), 42 U.S.C. §§ Representatives sought to curtail what it saw actions and, along with federal representative, 11001-11005. as excessive government regulatory bias in the Republican Hal Rogers of Eastern Kentucky, 15. See the 20-page investigative report entitled, environmental arena. instituted the “Personal Responsibility in a Desirable Environment (PRIDE)” program focused on illegal trash dumps in the Com- monwealth. In 2003, the James E. Bickford State Nature Preserve was established in his honor adjacent to the Pine Mountain Settle- ment School in Eastern Kentucky. 23. Kentucky Office of Governor (Fletcher), Ex- ecutive Order 2003-0064 (effective December 16, 2003). The Reorganization was based on recommendations from the Governor’s Blue Ribbon Commission on Governmental Or- ganization and Efficiency. The Commission members included the Honorable Richard Murgatroyd, Virginia G. Fox, Don Bowles, Bob Ramsey, John Hall, Alois Moore, Marga- ret Handmaker, Bill Street, Cathy Bailey, the Honorable Mike Buchanan, Dr. Lee Todd, ex officio, Dr. Jim Ramsey, ex officio, Dr. Michael McCall, ex officio, John David Preston, ex officio, John McCarthy and Andrew V. Mc- Neill. LaJuana Wilcher served as Governor Fletcher’s Secretary of EPPC from 2003 until 2006. 24. Kentucky Office of Governor (Beshear), Executive Orders 2008-0507 (effective June 16, 2008) and 2008-0531 (filed June 16, 2008). See National Mining Association et al., Appellees v. Gina McCarthy, sued in her official capacity, Administrator, U.S. E.P.A. et al. Appellants, D.C. Ct. Appeals, No. 12-5310, July 11, 2014. The Commonwealth of Kentucky was an Appellee in a case relating to EPA guidance documents using conductivity in regulating mining discharges to waterways. 25. Although it deals primarily with wastewater violations at a mining site, a recent Franklin Circuit Court case reflected on the Common- wealth’s capabilities to enforce its laws and regulations. See Energy and Environment et al.

20 | NOVEMBER/DECEMBER 2015 v. Frasure Creek Mining, LLC, et al., Findings istered through the Petroleum Storage Tank gram in Kentucky is dealt with in KRS 224 of Fact and Conclusions of Law, Common- Environmental Assurance Fund (PSTEAF). Subchapter 60 and includes the “Petroleum wealth of Kentucky, Franklin Circuit Court, The regulation of underground storage tanks is Storage Tank Environmental Assurance Division I, Civil Action No. 10-CI-1867 (Nov. not addressed in this outline. Fund.” See footnote 30 Supra. 24, 2014). In that Decision, the Honorable 31. Two of those positions are currently vacant. 40. See the statement of Tony Hatton, Director, Phillip J. Shepherd, Judge, stated that: “... the Jackie Quarles has recently taken the position Kentucky Division of Waste Management, Cabinet has fewer employees today than in of Assistant Director for the Division of Air 2014 Division of Waste Management Annual 1990, and far more responsibilities.” Previous Quality. Virginia Baker Gorley has recently Report: “The fastest growing encumbrance on to taking a position on the Bench in 2006, taken the position of Hearing Officer in the the HWMF is dry cleaning facilities. This is Judge Shepherd was a prominent environmen- Cabinet’s Office of Administrative Hearings. due to the number of facilities located across tal attorney, and from 1991 to 1995, Secretary 32. KRS 224.46-580; The Annual Hazardous the Commonwealth, remedial difficulties and of the NREPC in the Administration of Waste Assessment was set to expire in 2016. lack of financially viable responsible parties Democratic Governor Brereton Jones. In 2015, the State Legislature extended the ... Approximately 28 dry cleaner sites are 26. It is important to note that the Cabinet still assessment through 2024 (KRS 224.46-580 being actively addressed by the cabinet. This works with and requires responsible parties (7)). represents roughly 12 percent of the registered to clean up contaminated properties. The 33. The 2014 report by the Division of Waste dry cleaning businesses in Kentucky. There Cabinet also continues to clean up properties Management to the General Assembly are currently over 219 existing and former dry with no viable responsible parties as funding states, “In the fiscal years 2013 and 2014 the cleaner facilities registered as hazardous waste permits. Cabinet registered 309 new superfund sites handlers in the Kentucky RCRIS database. 27. The word “property” occurs once in the Arti- and oversaw remediation of 390 sites. In These facilities are not yet in active Super- cles of the Constitution (Article IV, Section 3, addition, the Cabinet performed nearly 2,000 fund universe. ... The vast majority of dry in regard to federal lands) and three times in technical site reviews and supervised managed cleaning facilities have never been registered. the Bill of Rights. In the Fifth Amendment, closures for just under 200 sites ... Currently, A nationwide survey of insurers estimated it is mentioned twice (“..., nor be deprived of the Commonwealth has an inventory of over that more than 70 percent of past and present life, liberty, or property, without due process 4,000 active and closed superfund sites.” dry cleaners accidentally or intentionally have of law; nor shall private property be taken for HWMF active capital project expenditures for released PCE into the soil or groundwater. public use, without just compensation”). It oc- FY 2013-14 include: 1) Black Leaf Project Cleanup costs can range from tens of thou- curs once in the Fourteenth Amendment (“...; (Louisville - $1,544,893; 2) Distler Brick- sands of dollars to several million dollars, with nor shall any state deprive any person of life, yards (Louisville) - $105,049; 3) Walgreens an average of $500,000 per cleanup. Many liberty, or property without due process;...”). Hogan Project (Owensboro) - $93,637; 4) dry cleaning operators do not have adequate The Fourteenth Amendment extended these Distler Farm (Hardin County) - $82,970; assets or insurance to pay these cleanup costs, rights to the states. British common law 5) Kentucky Tie and Timber (Mayfield) - which easily could exceed the equity in a retail enshrined private property rights (for example, $22,542; 6) Louisville Environmental Services center...” see Entick v. Carrington, (1765) EWHC KB (Louisville) - $22,393; 7) Lees Lane Project J98, 95 ER 807). And British common law (Louisville) - $12,378; 8) Jackson’s Pronto was adopted by the states (Louisiana excepted) Cleaners (Owensboro) - $8,300; 9) Quality through Reception Statutes or court decisions Cleaners (Owensboro) - $8,778; 10) Familee (see Indiana’s Common Law Reception Stat- Dry Cleaners (Hodgenville) - $3,510. ute, Indiana Code 1-2-1 (4) (1818)). 34. Text reconfigured and summarized from the 28. The author worked in Europe in the late March 2015 Kentucky Superfund Website 1980s counseling foreign companies on the (waste.ky.gov). Kentucky now uses EPA’s evolving environmental experience in the “Regional Screening Levels for Chemical United States. England has had a long history Contaminants at Superfund Site,” which of industrialization and much contamination replaced the EPA Region 3 Table referenced related thereto. Some of this contamination in KRS 224.1-530. was buried in the many clay pits excavated to 35. See 401 KAR 100:030; See also Rockwell Int’l make bricks for its factories. England was es- Corp. v. Commonwealth, 16 S.W.3d 316 (Ky. pecially concerned at that time about requiring Ct. App. 1999) and 500 Assocs. v. Natural Res. notifications similar to those required in the & Envtl. Prot. Cabinet, 204 S.W.3d 121 (Ky. United States. Holland was well known for Ct. App. 2006). For a demonstration that no its “A-B-C” cleanup standards allowing for further action is necessary, contaminant levels different remediation levels depending on the must meet the target risk level for residential jurisdiction. Much of Dutch land is reclaimed use as described in 401 KAR 100:30. from sediment in the Rhine River contaminat- 36. KRS 224.1-400 (19). ed by upstream industrial activities. Germany, 37. Public Law 107-118 (H.R. 2869), Section which at the time had the most stringent 222; signed by President George W. Bush on cleanup standards, changed its policies when Jan. 11, 2002. it incorporated East Germany. East Germany 38. Bona Fide Prospective Purchaser, 42 U.S.C. § had been the disposal site for significant 9601(40); All Appropriate Inquiry, 42 U.S.C. amounts of West Germany’s waste. After § 9601(35); Innocent Landowners, 42 U.S.C. incorporating the East, Germany favored the §§ 9601(35), 9607(b)(3). There are also other natural attenuation of contamination in East threshold criteria and ongoing obligations. German soils. See EPA’s “Interim Guidance Regarding 29. The author thanks Bruce Scott, Tony Hatton, Criteria Landowners Must Meet in Order to Tim Hubbard, and Larry Hughes, all of the Qualify for Bona Fide Prospective Purchases, Department for Environmental Protection, for Contiguous Property Owner, or Innocent their assistance in developing this article. Land Owner Limitations on CERCLA Lia- 30. The regulation of underground storage tanks is bility” (“Common Elements” Memorandum, addressed by the Underground Storage Tank Susan E. Bromm, (EPA, 3-6-2003)) Branch, which receives independent funding 39. Petroleum storage tanks are defined in KRS from a tax on each gallon of gasoline pur- 224.60-115 as “an underground storage tank.” chased in the state. These monies are admin- The Underground Storage Tank (UST) Pro-

BENCH & BAR | 21 COLUMNS

Alito also spoke on whether oral arguments make a difference, a question often asked by law students. Sometimes, he said, but it is less important than the briefs. And what about law clerks; are they really running the show? Alito said the justices do their own work.

The court does not hear arguments in the summer because it is “really beneficial” for the justices to have an end point in the term, guaranteeing that cases are decided by a certain deadline. And contrary to the impression some may get from reading their opinions, the justices “are really not at each other’s throats.” In fact, Alito said they have lunch together on argument and conference days and “we have a rule that we may not discuss any cases during lunch.”

During his visit, Justice Alito also served as a guest lecturer in administrative law, federal courts and criminal procedure classes, Justice Alito Gives Behind-the-Scenes and met with UK College of Law faculty and staff. Look at Supreme Court “Having U.S. Supreme Court justices here allows them (students) U.S. Supreme Court Justice Samuel Alito visited UK Law in Sep- to see that these folks are human, flesh and blood, and they talk tember as the Roy R. and Virginia F. Ray Distinguished Lecturer. about issues in the same way that you learn about them in the class- Speaking to approximately 500 individuals in a packed auditorium room,” UK Law Dean David A. Brennen said at the lecture. in the Gatton College of Business and Economics, Alito exposed students, as well as alumni, faculty, staff and others, to a behind- UK Law Develops Class to Prepare the-scenes look at the court. Students for Law School on Day One Introduction to Legal Reasoning is a three and a half day law Justice Alito provided answers to the most common questions he school preparation program that exposes first year students to mock has received throughout his tenure on the court. His first question: law school classes, critical reading skills, as well as advice on briefing Why shouldn’t oral arguments be televised? “You really do not cases, note taking, and other essential skills. Mindfulness and exer- want to see the court at work,” he joked. He continued on to say cise are also included in the program to help students understand that if this happened, the arguments would degenerate into a forum that exercise helps maintain focus and good brain health. for soundbites. “While law school is an exciting opportunity, it can be challenging to learn new study techniques. This program equips our students with key information so they are prepared and ready for law school on day one,” said Jane Grise director of UK Law’s Academic Success program, which administers the Intro to Legal Reasoning program.

This program is offered to all incoming UK Law students at no cost. “The University of Kentucky College of Law knows the importance of investing in our students to give them the necessary tools to thrive in law school,” said UK Law Dean David A. Brennen. “We are proud to offer this beneficial program to our students without an out-of-pocket expense obligation on their end. The Introduction to Legal Reasoning program allows our students to be submerged in law school culture before the first day of class, giving them a head start in their law school career.”

The program focuses on an introduction to legal studies, legal writing, critical reading, and substantive law classes. The stu‑ dents participating in the program are immersed into law school reality. They sit through lectures and are given assignments to help reinforce the information they have learned in the pro‑ gram. They are given the opportunity to speak with second year mentors to ask any burning questions they may have about law school. And they also get a chance to meet and

22 | NOVEMBER/DECEMBER 2015 talk with fellow classmates who will be by their sides throughout the next three years.

The students who attended the program had great things to say about how well prepared the program made them for law school. “Intro to Legal Reasoning was a great way to get into the law school mindset prior to the start of classes,” said first year law student Page Minton. “In addition to allowing me to meet fellow classmates, it provided effective strategies for reading cases and helped me feel more prepared for the rigor of the first year of law school.”

First year student Christopher Lewis agreed, “It was a great program that gave me in- sight on how law school would be. I feel like I had an advantage on my first day of law school due to the subject matter covered in the course, and I think that it was super beneficial because I was able to develop a foundation of skills that I use in every class.”

Director Grise introduced a new element to this year’s legal reasoning program: book discussions with faculty. Participating students were asked to choose one book from a list of prospective books with legal subject matter. During the legal reasoning program, students met in small groups with a member of the UK Law faculty for a book discussion. The students were appreciative of the opportunity to connect with fellow students and a member of the faculty before being thrown into the rigorous law school environment. “The social aspect of this program is incredibly important,” Grise said. Research has proven that a feeling of community and ties to a group, help increase retention and happiness amongst individuals.

Introduction to Legal Reasoning is offered as part of UK Law’s Academic Success Program, which functions to help students throughout their legal education and reach their personal best. The Academic Success Office holds workshops throughout the academic year for all 1L’s on topics such as time management, reading and briefing cases, outlining, and exam preparation.

BENCH & BAR | 23 COLUMNS

Brandeis Students Taking Ownership in Next-Level Initiatives

he school year is still relatively Other student-led organizations have also “We’re opening (moot court) up more to young, but our students have been been stepping things up. For example, 1Ls so they can get involved in the admin- pounding the pavement since day Keesha Stacy reactivated the Christian istrative work and therefore get to know one,T fueled by motivation to make Brandeis Law Society (CLS) this year after a year the program, the coaches and the process. better. They have also displayed tremen‑ of “limited involvement.” Approximately This should also help them network and dous unity in the face of tragedy — 2L 15 students have joined thus far. get their foot in the door to see what they Jeremy Woodruff passed away unexpect- would be interested in when they can fully edly in September. “I felt it appropriate to reactivate and estab‑ participate in their second year,” she said. lish CLS at Brandeis. CLS is a group about Student Bar Association (SBA) President Woodruff — a former Marine — was one love and community and encouragement, Rudy Ellis III, meanwhile, is encouraging of our leaders, starting a Veterans’ Advo‑ and that is just the thing tired law students every Brandeis student to join the Amer- cacy Organization (VAO) committed to need,” Stacy said. ican Bar Association (ABA) this year. He increasing education and charity related and fellow student Tony Singleton trav- to veterans and active duty military in the The group’s main objectives this year are eled to Chicago in July to attend the ABA’s community. exposure, education and encouragement. annual meeting to fit their goal of getting more involved on a national scale. He, along with Kelly Reeves and Joshua “I want to make it known that CLS is a Norman, recently got this group off the support group. Additionally, I will post “The ABA is essentially the governing body ground with a mission of providing vet- social justice opportunities for the mem- (of law schools), so I thought it was import‑ erans with assistance to facilitate reinte- bers so that they can be aware of what is ant for us to have a presence,” Ellis said. gration and improve their overall access to going on in the new community,” Stacy “We want to have a meaningful stake with support programs. said, adding that she will start seeking a the ABA.” successor in the spring for posterity. Although Woodruff’s passing has left a hole In addition to having a stronger ABA in our hearts, the VAO is moving forward Additionally, Moot Court President Mad- presence, the Brandeis School of Law in his memory. Also faculty, staff, students, ison Shoffner’s objectives are to participate SBA’s objectives this year also include more alumni and friends of the Law School have in more prestigious competitions nation- branding efforts and increased alumni been donating to the newly-created Jeremy wide and to get 1Ls more actively involved engagement. Woodruff Memorial Scholarship. He left than they’ve been in the past, essentially to this school a better place and we owe it to build a stronger pipeline. “We have very motivated students here. him to continue his path of ambition. We’re a public service school – we don’t just

24 | NOVEMBER/DECEMBER 2015 go through the motions, we want to take Finally, two of our journals—The Journal of “The objective is just to make our articles something and make it better,” Ellis said. Animal and Environmental Law (JAEL) and mobile-friendly. Only about five percent the Louisville Law Review — are stepping is now read on mobile, but that number is The Women’s Law Caucus (WLC) will up their digital efforts this year. increasing and we want to make sure we’re maintain its foundational goals this year – staying ahead,” he said. “Especially because promoting equality in the law and society The University of Louisville Law Review’s we are online only and always have been, for students and professionals. But Megan Editor-in-Chief Daniel Reed and Andrew we really try to be ahead of the technology McDonald said the group is seeking to Weeks, online content editor, are build- curve.” promote the intersectionality in these ing up more content on the publication’s endeavors as well. website, as well as through its Facebook, Jennifer DiSanza, assistant dean for Stu- Twitter and LinkedIn channels. dent Services and director of Law Staff “We are ever mindful that women are a Development, has a front row seat to all diverse group of individuals and not a And, JAEL’s Executive Editor Matthew of these efforts and has noticed something homogeneous class. The full and equal par‑ Dutcher is in the process of creating a special about this year’s student body. ticipation of women cannot be realized cleaner, updated look for the online pub‑ without also addressing the effects of lication and by making its website more “I have been able to witness the incredibly racism, bigotry and other forms of discrim- user-friendly — adding a responsive drop- collaborative community we have at the law ination,” she said. down navigation bar, for example. Res‑ school. This year, I am so proud of the way ponsive design basically means that con- students, faculty, and staff have stepped up The WLC will offer networking events and tent will be readable regardless of what on numerous initiatives,” she said. “I have panels, and will also give members more device you’re on – a PC, tablet or phone. met with student leaders in groups and opportunities to be involved within the Websites without responsive design don’t individually in the last few months who organization. translate well to mobile devices, so content are enthusiastic and motivated to revive can become cumbersome to read, Dutcher long forgotten traditions while ushering “This allows our members to acquire resume explains. in entirely new programs to support and building experiences earlier in their aca- promote our students.” demic career and build skills necessary to be successful in their future professional lives,” McDonald said.

Quintairos, Prieto, Wood & Boyer, P.A. Attorneys at Law

ATTORNEYS for its Louisville and - ence in civil trial and/or insurance defense litigation. Portable book of business is a plus.

E-mail resume to [email protected]

BENCH & BAR | 25 COLUMNS

From left to right, Dean Jeffrey Standen, Karen Meyers, Gwendolyn Nalls, Jerome Bahlmann, and Jay Knight.

Over the years, Bahlmann has been active in many community activities and has served on the boards of a number of organizations including the Ohio Chamber of Commerce, Capital University, the Chase Alumni Association United Way of Central Ohio, the Battelle Foundation, the Colum- bus Urban League, the Greater Columbus Chamber of Commerce, Presents Annual Awards St. Stephen’s Community House, and Greater Columbus 2000 Council.

he Chase Alumni Association hosted its annual Chase Karen D. Meyers ’78 Alumni Awards Luncheon on Friday, Oct. 2, 2015, at NKU’s Professional Achievement Award T BB&T Arena. The event marked Chase’s 12th annual alumni awards gathering. This year’s award recipients were Jerome R. Karen D. Meyers ’78 is a member of Little, Meyers & Associates, Bahlmann ’67, Karen D. Meyers ’78, Gwendolyn Nalls ’99, and Jay Ltd., a national consulting firm, and the owner of K.D. Meyers H. Knight ’05. & Associates, PSC, a law firm heavily involved in healthcare, insurance, catastrophic injury settlements, elder law, and patient Jerome R. Bahlmann ’67 advocacy. Meyers tempers her considerable credentials in the insurance, healthcare, and legal fields with a rare ability to speak to the Lifetime Achievement Award human side of an issue. The late Congressman James Corman of Jerome R. Bahlmann ’67 is counsel with Porter Wright Morris & the U.S. House Ways and Means Committee told her that she “will Arthur LLP in Columbus, Ohio. Bahlmann received a Bachelor of always be on the side of angels in her work in the catastrophic injury Arts degree in philosophy from Thomas More College in 1963 and victim and healthcare fields.” a Juris Doctor degree, with honors, from Chase College of Law in 1967. He started his career as a lawyer with the Ohio State Legal In addition to her Juris Doctor degree from Chase College of Law, Services Association and then became the first executive director Meyers holds a master’s degree in business and a master’s degree in of the Ohio Legislature’s newly created Ohio Ethics Commission. education. She is a Chartered Life Underwriter, Chartered Property Casualty Underwriter, Certified Structured Settlement Consultant, In 1976, Bahlmann became assistant general counsel of the Colum- Master Structured Settlement Consultant, and Fellow of the Life bus Division of Battelle Memorial Institute. Battelle is a large Management Institute. research and development company with corporate headquarters in Columbus and major research operations and marketing offices Meyers is passionate about healthcare, CMS Quality Initiatives, around the world. Following his completion of the Advanced Patient and Family Centered Care, and the needs of the catastroph- Management Program at the Harvard Business School in 1984, ically injured. She is the lead caregiver for her catastrophically Bahlmann became senior vice president and general counsel of Bat- injured mother who is part of a national continuity of care study telle and had responsibilities for the Law Department, Corporate and was one of the “Covergirls” for federal legislation involving Communication, Facilities, and Human Resources. Long Term Acute Care Hospitals.

26 | NOVEMBER/DECEMBER 2015 Gwendolyn Nalls ’99 Jay H. Knight ’05 Exceptional Service Award Outstanding Alumnus of the Past Decade Gwendolyn Nalls ’99 is a retired executive director and manager of Jay H. Knight ’05 is a member at Bass, Berry & Sims PLC in Nash- projects with CB&I Federal Services, Inc., and now a government ville, Tenn. After graduating from Chase College of Law in 2005, contracts consultant in Dayton, Ohio. Nalls completed her under- Knight began his legal career as a corporate associate at Keating, graduate studies at Sinclair College and the University of Dayton. Muething & Klekamp in Cincinnati. In 2007, he accepted a posi- She earned a master’s degree from Central Michigan University tion as an attorney at the Securities and Exchange Commission in and a Juris Doctor degree from Chase College of Law. Washington, D.C., in its Division of Corporation Finance. With the passage of the Dodd-Frank Act in 2010, he was invited to join Over the past 30 years, Nalls worked in senior management the Dodd-Frank Act Implementation Team and soon transitioned positions for major corporations at government sites for the U.S. to a senior policy-making role in the area of structured finance. Department of Energy. Those contracts totaled more than$ 25 billion covering sites in five states. The mission of those projects was In 2012, Knight returned to private practice and joined Bass, Berry to remediate nuclear contaminated facilities and restore the land, & Sims in Nashville. Since returning to private practice, his practice air, and ground water to safe levels for the communities. has focused on capital markets, mergers and acquisitions, and the representation of public companies and underwriters. In 2015, he Nalls is a member of the Bar of the U.S. Supreme Court, the Ohio was elected a partner and shortly thereafter was named head of State Bar Association, and the Dayton Bar Association. Nalls and the firm’s Capital Markets Subgroup. Knight is also active in the her husband, Daniel Baker, co-authored Racism, Riots, and Murders leadership of the ABA’s Federal Regulation of Securities Com- in the Heartland of America (2014), a book that captures one of mittee and serves as the chair of the Annual Review of Securities the most tumultuous decades in the history of the United States Law Subcommittee. (1965 – 1975) when riots, violence, and crime swept the nation.

BENCH & BAR | 27 EFFECTIVE LEGAL WRITING USING PARALLELISM TO WRITE BOTH CORRECTLY AND PERSUASIVELY By: Kristin Johnson Hazelwood

rom historical greats like Martin a different set of facts, on different SEC filings, and on a drop in Luther King Jr. to literary giants share prices of Tyco – a different company.”5 like Charles Dickens1 to pop cul- Fture icons like Taylor Swift, writers trying Parallelism, however, is not strictly a rhetorical device. Rather, at to emphasize key points and create a last- its most basic level, it refers to a rule of grammar that requires that ing impression on their audiences have items in a list, compound objects, correlative conjunctions, and relied on a similar principle – parallelism. For example, in his “I other linked constructions be “parallel in substance” and “parallel Have a Dream” speech, King employed multiple examples of par- in grammar.”6 To be parallel in grammar, the items must be the allelism, including the parallel sentence structure and phrasing in same part of speech. This parallel structure is important because this memorable and powerful passage: it results in a list that is much easier for the reader to understand7 and “enables the reader to recognize more readily the likeness of I have a dream that one day this nation will rise up, live 8 content and function.” out the true meaning of its creed: “We hold these truths

to be self-evident, that all men are created equal.” Parallel construction, therefore, is a key concept for legal writers I have a dream that one day on the red hills of Georgia in terms of both writing correctly and writing persuasively. Con- sons of former slaves and the sons of former slave-owners sidering the four questions that I have laid out below will help the will be able to sit down together at the table of brotherhood. legal writer achieve both. I have a dream that one day even the state of Mississippi, a For each list of items in my writing, are the items state sweltering with the heat of injustice, sweltering with all “coordinate ideas,”9 or have I linked unrelated the heat of oppression, will be transformed into an oasis concepts? The premise behind parallel construc- of freedom and justice. tion is that the writer is linking related ideas. If I have a dream that my four little children will one day live the linked items are dissimilar in terms of their substance, they should not be linked. in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream . . . For each list of items in my writing, are the items Singer song-writer Taylor Swift used a similar technique in all the same part of speech? The items in your list the chorus of her hit single, “We are Never Ever Getting Back can be any part of speech; the key is that they be Together,” when she instructed her ex-boyfriend to “you go talk the same part of speech. Consider this sentence: to your friends, talk to my friends, talk to me.” Even the late Yogi “The boy likes chocolate ice cream, baseball, and Berra, who was known for his unusual word pairings and not always to sleep.” This sentence is not written in parallel an effective writing style and grammar, utilized this principle in one construction because the first two items in the list of his famous sayings, “It ain’t over ‘til it’s over.” are nouns and the final item is an infinitive. The writer has a couple of options in rewriting this sen- Given its ability to have a lasting impact on the audience, par- tence: “The boy likes to eat chocolate ice cream, allelism is a powerful tool in the hands of an advocate.2 Ross play baseball, and sleep.” Or, “The boy likes eating Guberman, in his book analyzing briefs filed by some of the nation’s chocolate ice cream, playing baseball, and sleeping.” top advocates, identified parallelism as a technique of “great legal Is there a key word or phrase that I can weave into 3 writers.” Specifically, Guberman identified repeating key words a particular paragraph or section of my writing to and juxtaposing disparate facts or outcomes as ways in which top reinforce my theory of the case? Think carefully advocates use parallel construction to make their points more per- about the governing rule for your case and how you 4 suasive. As an example of the repetition of key words to create a can repeat language from that rule in your text. For coherent and “gelled” paragraph, Guberman quoted the following example, in a defamation case analyzing an abuse excerpt from a brief in a securities class action: “The conduct of of a qualified privilege because of the defendant’s Kozlowski and Swartz formed the basis of a separate securities class knowledge of the statement’s falsity, the writer action against Tyco (not TyCom). That class action was based on

28 | NOVEMBER/DECEMBER 2015 might repeat the word “knew” throughout the emailed the supervisor’s allegation that the plaintiff analysis of the facts of the client’s case: “Mr. Jones had falsified her time sheets to all the nurses in the knew that Ms. Smith’s supervisor had approved her plaintiff ’s department, Mr. Bennett sent his email request for a flexible work schedule. He alsoknew accusing Ms. Carter of excessive tardiness to all her that Ms. Smith completed her sales reports in the colleagues. Because the court in Smith v. Jones con- mornings before she came into the office because, cluded that the defendant had abused the qualified as head of the sales department, he received copies privilege by over-publication, Mr. Bennett’s email of those reports via email. However, despite that constitutes over-publication too.” knowledge, Mr. Jones accused Ms. Smith of habitual tardiness.” Parallelism, therefore, is both a powerful rhetorical device and a principle of grammar. Utilizing it effectively shows the writer’s Do any of the precedent cases have similar facts audience both the competency of the writer and the appeal of the to my case? Because of the importance of stare writer’s position. decisis in the American legal system, showing that the facts of the current case are similar to the facts Endnotes of a prior case is an effective way to persuade a 1. A Tale of Two Cities begins with 10 sentences written in a parallel construction: “It was the best of times. It was the worst of times. . . .” court to adopt a particular position. The clever 2. Parallel construction is “a way to streamline information and to make your advocate, however, does not stop at just telling the points stick.” Ross Guberman, Point Made: How to Write Like the Nation’s Top court that the facts of the two cases are similar. Advocates 195 (2011). 3. Id. Rather, the clever advocate describes the facts of 4. Id. at 195-201. the current and prior cases in a parallel gram- 5. Id. at 197. matical structure so that the reader actually “sees” 6. Richard C. Wydick, Plain English for Lawyers 45 (5th ed. 2005); see Bryan A. 10 Garner, The Redbook: A Manual on Legal Style 60, 202, 211, 214 (3d ed. 2013); the similarity. For example, if the facts of both Joe Glaser, Understanding Style 172-73 (1999). our case and a precedent case involve over-publi- 7. Guberman, supra note 2, at 195-96. cation of a defamatory statement by forwarding 8. William Strunk Jr. & E.B. White, The Elements of Style 26 (3d ed. 1979). Strunk and White describe this principle as “express[ing] coordinate ideas in an email containing the defamatory statement to similar form.” employees, we could analogize the cases in this 9. Id. way: “Like the defendant in Smith v. Jones who 10. Christine Coughlin et al., A Lawyer Writes: A Practical Guide to Legal Analy- sis 145-46 (2d ed. 2013).

GilsbarPRO...A Horse Of A Different Color.

When is the last time you had options? At GilsbarPRO, you can receive a no-obligation Get Competitive Options. professional liability estimate within two hours. Our Call The PROs Today. team works with A-rated carriers to provide the trusted protection your firm needs. 800.906.9654 • gilsbarpro.com • Over 50 years of professional liability experience • Currently serving over 26,000 attorneys • Fast quotes and easy renewals • Access to the best carriers in the nation

BENCH & BAR | 29 YOUNG LAWYERS DIVISION

By J. Tanner Watkins, YLD Chair

• Numerous public service opportunities, including Bully- Proof, U@18, Voices Against Violence, and legal assistance to disaster survivors; hile I generally attempt to write articles that appeal to all of the members of the Bar Association, this article • Opportunities to advance and promote diversity in the is directed primarily to our newest members — those profession; th whoW just passed the bar exam and were sworn in on October 19 . • Leadership opportunities by serving on one of several YLD committees; and First and foremost, congratulations! Whether your focus is transactional or litigation, civil or criminal, or all of the above, being a • Much, much more. Kentucky lawyer is a privilege and an honor. Additionally, I’m quite Please consider serving the profession by becoming actively involved certain that each of you will be a force of good for the profession, in the Young Lawyers Division. There is no finer professional devel- for your clients, the Bar Association and for the communities you opment organization for young lawyers in Kentucky. Whether serve. So, on behalf of the Bar Association, thank you. To help it is helping to deliver public service benefits across the state, or each of you on your respective journeys, I invite each of you to join enhancing our profession through publications and presentations, the Kentucky Bar Association Young Lawyers Division. We pride there are real and ongoing opportunities for every member of our ourselves as the home of the best and brightest young lawyers in Division to give back to the profession and the community. the Commonwealth, and that legacy will continue with you and your peers set to join us. For more information concerning the Young Lawyers Division leadership, activities, and opportunities, please visit www.kbayld.org Membership is open to any Kentucky attorney who is 40 years or our Facebook page. If you have any questions concerning the of age or younger or those over 40 who have practiced law 10 or Division or are interested in serving on a committee, please contact fewer years. As a first year lawyer, your dues to the Young Lawyers me at [email protected]. I look forward to working Division are waived. Thereafter, dues are only $20 per year. with you.

As a Young Lawyers Division member, you will enjoy numerous Again, each of you have chosen an honorable profession. Welcome benefits including: to the practice of law in the Commonwealth of Kentucky! • Several free CLEs offered statewide focusing on practical skills for young lawyers; • Access to free on-demand and in-person CLE; Honest-to-goodness • Free networking and social events throughout the state; protection. • Monthly e-newsletter and access to the Di- vision listserv, a fast and easy way to contact to some pretty famous lawyers. Of course, things fellow young lawyers; have changed a lot over the years, and today’s legal professionals need reliable protection. With 27 years of Kentucky experience, we specialize in providing smaller • Brief In‑sights podcast series; • Professional development programs, such Get legal insurance you can hang your hat on. Contact Lawyers Mutual for your free as the Lawyers As Leaders series; quote today at 502.568.6100 or www.lmick.com. • Alternative career development programs, By Kentucky Lawyers. For Kentucky Lawyers. such as the Road Less Traveled series; • $ 100 in savings on registration to the KBA Waterfront Plaza | 323 West Main Street, Suite 600 | Louisville, KY 40202 Annual Convention, where we feature CLE 502.568.6100 | 800.800.6101 | LMICK.com and professional development programs designed by and for young lawyers;

30 | NOVEMBER/DECEMBER 2015 BAR NEWS

COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION

IN RE THE MATTER OF: SAM POTTER, JR., DISTRICT COURT JUDGE 8TH JUDICIAL DISTRICT

AGREED ORDER OF SUSPENSION Sam Potter, Jr. is District Judge for Kentucky’s 8th Judicial District consisting of Warren County. Judge Potter has waived formal proceedings and has agreed to entry of this Order.

During a preliminary investigation, the Commission received information that Judge Potter engaged in the following conduct: He con- sumed alcohol to a degree that it affected the performance of his duties. He appeared in court disheveled and engaged in erratic behavior. He routinely made inappropriate statements to parties and attorneys in open court. He had, on numerous occasions, failed to provide basic due process rights to criminal defendants. He engaged in ex-parte communications with defense attorneys, prosecuting attorneys, and criminal defendants who appeared before him. He often neglected his judicial responsibilities or performed them in a substandard manner. During the period of the Commission’s investigation, Judge Potter entered into an extensive in-patient treatment program. Upon his successful completion of the program, he entered into a contract with the Kentucky Lawyers Assistance Program (KYLAP) and has agreed to abide by all terms of the program and has agreed to allow the Commission to monitor his progress.

The Commission concludes that by the conduct described above, Judge Potter violated SCR 4.300, the Code of Judicial Conduct, Canon 1 by failing to maintain high standards of conduct and uphold the integrity and independence of the judiciary; Canon 2A by failing to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary; Canon 3B(2) by failing to be faithful to the law; Canon 3B(4) by failing to be dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity; Canon 3B(7) by engaging or considering ex-parte communications; Canon 3B(8) by failing to dispose of matters promptly, efficiently, and fairly; and Canon 4A(3) by failing to conduct his extra-judicial activities so that they do not interfere with the proper performance of judicial duties.

Therefore, for the foregoing conduct, Judge Potter is hereby suspended from his duties without pay for a period of 30 consecutive days beginning December 15, 2015 and ending January 13, 2016.

During the suspension Judge Potter shall not use his office at the Warren County Justice Center. Judge Potter shall forbear from using his secure courthouse access pass and shall turn in any access passes, keys, or credentials to court security while the suspension is in effect. Failure to abide by the terms of the KYLAP contract shall be considered a violation of this Agreed Order and shall be cause for additional discipline.

In entering this Order with the Agreement of Judge Potter, the Commission has duly considered that he fully cooperated in the Com- mission’s investigation and has taken appropriate steps to ensure that the offending conduct will not be repeated.

Date: September 1, 2015 /s/ STEPHEN D. WOLNITZEK, CHAIR Agreed to:

/s/ Charles E. English, Counsel for Judge Potter

/s/ Hon. Sam Potter, Jr.

BENCH & BAR | 31 BAR NEWS

COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION IN RE THE MATTER OF: STEVEN D. COMBS, CIRCUIT COURT JUDGE 35TH JUDICIAL CIRCUIT AGREED ORDER OF SUSPENSION * * * * * * * * * * Steven D. Combs (“Judge Combs”) is a Circuit Court Judge for Kentucky’s 35th Judicial Circuit, consisting of Pike County. On the morning of September 21, 2015, prior to the commencement of the final hearing in this matter, the parties reached an agreement to resolve the matter. Judge Combs has waived formal proceedings and Judge Combs, the Judicial Conduct Commission (the “Commission”) and the Commission’s Counsel have agreed to entry of this Order.

The Commission received Complaints and other information, conducted a preliminary and subsequent investigations, and ultimately filed a Notice of Formal Proceedings and Charges (the “Original Notice”), an Amended Notice of Formal Proceedings and Charges (the “First Amended Notice”) and a Second Amended Notice of Formal Proceedings and Charges (the “Second Amended Notice”) (the Original Notice, First Amended Notice and Second Amended Notice referred to collectively as the “Notices”) against Judge Combs. Judge Combs timely filed Responses to each of the Notices. The Notices asserted thirteen (13) charges against Judge Combs.

Prior to the scheduled final hearing, Judge Combs filed a Motion to Dismiss Counts I, II, IV, VII, VIII, IX, X, XI, XII and XIII of the Notices. The Commission’s Counsel, in Response to the Motion to Dismiss, did not object to dismissal of Count VII and of that portion of Count VIII that alleged Judge Combs had engaged in ex parte communications with attorney Michael de Bourbon about the case at issue in Count VIII. Having reviewed the Motion and Response, the Commission dismissed Count VII and the portion of Count VIII that alleged Judge Combs engaged in an ex parte communication with Attorney Michael de Bourbon. As part of the agreement reached between Judge Combs and the Commission’s Counsel, the Commission also dismissed Count X in its entirety.

On the morning that the final hearing was scheduled to commence, Judge Combs, by counsel, and the Commission’s Counsel, reached agreement on a resolution of this matter, as described below. The Commission’s Counsel recommended that the Commission accept the agreement reached with Judge Combs, and the Commission, by a vote of 5-1 (with one voting member of the Commission not in agreement as to the length of the suspension to be imposed) approved the agreement, resulting in this Agreed Order of Suspension: 1. Judge Combs will take the following steps regarding the Kentucky Lawyers Assistance Program (“KYLAP”): enroll in the Kentucky Lawyers Assistance Program (“KYLAP”) for evaluation and assessment within 30 days of the date of this Order; follow the instructions and procedures recommended by KYLAP; and waive the confidentiality of the KYLAP reports only as to the Commission, so that the Commission can be informed as to any and all results of such evaluation and assessment and as to his progress in following any instructions and procedures recommended for him. Judge Combs’ failure to comply with the provisions of this paragraph will constitute a breach of this Agreed Order of Suspension. 2. Judge Combs agrees that he will not retaliate against any witness, complainant or person involved in these proceedings regarding their statements, actions or other conduct prior to the date of this Agreed Order of Suspension, and further agrees that if he does commit any such acts of retaliation as to such prior statements, acts or conduct, it will constitute a breach of this Agreed Order of Suspension. 3. Judge Combs agreed to, and did, make an allocution on the record and in open court on September 21, 2015, as follows: a. As to Count I of the Notices, Judge Combs admits that he committed the acts set forth therein and that these acts constitute a violation of the Canons of the Kentucky Code of Judicial Conduct. b. As to Count II of the Notices, Judge Combs admits that he committed the first through fifth and the seventh acts set forth therein and that these acts constitute a violation of the Canons of the Kentucky Code of Judicial Conduct. As to the sixth act set forth in Count II, Judge Combs does not admit to the act but admits that the Commission has a good faith basis and proof to support Count II related to this act. c. As to Count III of the Notices, Judge Combs admits that he committed the first, second and sixth through twelfth acts set forth therein and that these acts constitute a violation of the Canons of the Kentucky Code of Judicial Conduct. As to the third, fourth and fifth acts set forth in Count III, Judge Combs does not admit the acts but admits that the Commission has a good faith basis and proof to support Count III related to these acts. d. As to Count IV of the Notices, Judge Combs admits that he committed the acts set forth therein and that these acts constitute a violation of the Canons of the Kentucky Code of Judicial Conduct. e. As to Count V of the Notices, Judge Combs admits that he committed the acts set forth therein and that these acts constitute a violation of the Canons of the Kentucky Code of Judicial Conduct. f. As to Count VI of the Notices, Judge Combs admits that he committed the acts set forth therein and that these acts constitute a violation of the Canons of the Kentucky Code of Judicial Conduct. g. Judge Combs Motion to Dismiss Count VII of the Notices is sustained, and Count VII is dismissed in its entirety.

32 | NOVEMBER/DECEMBER 2015 h. Judge Combs Motion to Dismiss that portion of Count VIII of the Notices that alleges Judge Combs engaged in ex parte communications with attorney Michael de Bourbon prior to the hearing that is at issue in Count VIII is sustained, and that portion of Count VIII is dismissed. As to the remainder of Count VIII of the Notices, Judge Combs admits that he committed the acts set forth therein and that these acts constitute a violation of the Canons of the Ken- tucky Code of Judicial Conduct. i. As to Count IX of the Notices, Judge Combs admits that he committed the acts set forth therein and that these acts constitute a violation of the Canons of the Kentucky Code of Judicial Conduct. j. By agreement of Judge Combs and the Commission’s Counsel, and on the recommendation of the Commission’s Counsel, Count X of the Notices is dismissed in its entirety. k. As to Count XI of the Notices, Judge Combs admits that he committed the first act set forth therein, except as to the last sentence thereof, and that this act constitutes a violation of the Canons of the Kentucky Code of Judicial Conduct. As to the last sentence of the first act set forth in Count XI, Judge Combs does not admit this act but admits that the Commission has a good faith basis and proof to support Count XI related to this act. As to the second act set forth in Count XI, Judge Combs admits that he committed the act set forth therein and that this act constitutes a violation of the Canons of the Kentucky Code of Judicial Conduct. l. As to Count XII of the Notices, Judge Combs admits that he committed the acts set forth therein and that these acts constitute a violation of the Canons of the Kentucky Code of Judicial Conduct. m. As to Count XIII of the Notices, Judge Combs does not admit the acts but admits that the Commission has a good faith basis and proof to support Count XIII. Therefore, in light of the foregoing, Judge Combs is hereby suspended from his duties as Pike Circuit Court Judge, without pay, for a period of one hundred eighty (180) days, beginning October 1, 2015 and ending March 29, 2016. Judge Laurance B. VanMeter, Judge Jeffrey M. Watson, Judge David P. Bowles, Mr. Stephen D. Wolnitzek, Ms. Joyce King Jennings and Ms. Diane Logsdon, sitting. Judge Janet Stumbo and Judge Eddy Coleman recused from any consideration of this matter. Date: October 1, 2015

______/s/______Stephen D. Wolnitzek, Chair

Agreed to:

______/s/______Richard A. Getty, Co-Counsel for Judge Combs

______/s/______Stephen Ryan, Co-Counsel for Judge Combs

______/s/______Steven D. Combs, Judge

______/s/______Jeffrey C. Mando, Counsel for the Commis- sion

BENCH & BAR | 33 BAR NEWS

COMMONWEALTH OF entering your property and ad‑ you responded, “That’s a good KENTUCKY JUDICIAL vised EQT to send additional waste of time. My mother’s house gravel to your property. got broken in last Friday. It’s now CONDUCT COMMISSION Wednesday, and you all have not Your actions violate SCR 4.020(1)(b)(i) IN RE THE MATTER OF: reported back to me yet. I do not and constitute misconduct in office. Fur- appreciate it.” When the call was STEVEN D. COMBS, CIRCUIT thermore, your actions violate SCR 4.300 transferred to Officer Addison COURT JUDGE 35TH JUDICIAL and the relevant portions of the following Baisden, you chastised him for Canons of the Code of Judicial Conduct: CIRCUIT not reporting back to you and • Canon 1 which requires judges criticized the Police Department to maintain high standards of for an arrest made at a concert. NOTICE OF FORMAL PRO‑ conduct and uphold the integ- You then told Officer Baisden, CEEDINGS AND CHARGES rity and independence of the “Tell Phillip (Reed) to call me if Notice is hereby given of the initiation of judiciary. he’s not too damn busy playing formal proceedings under Rule 4.180 of • Canon 2A which requires judges airport tomorrow.” Rules of the Supreme Court. At the times to respect and comply with the • On December 11, 2014, you en‑ set out in this Notice, you were Circuit law and act at all times in a manner gaged in a verbal confrontation Court Judge for Kentucky’s 35th Judi- that promotes public confidence with Officer Aaron Thompson cial Circuit located in Pike County. The in the integrity and impartiality about people parking in the pri- Charges are as follows: of the judiciary. vate parking lot of the church • Canon 2D which prohibits you attend. During this call, you COUNT I judges from lending the pres- criticized the Pikeville City Attor‑ From April 25, 2011, until September 3, tige of judicial office to advance ney and demanded that the Police 2014, you presided over Pike Circuit Court private interests of the judge or Department cite individuals who Case No. 11-CI-00567 styled Danny Potter others. parked in the parking lot for v. Blue Flame Energy Corporation, et al. • Canon 3B(8) which requires a criminal trespass. despite the fact that you had an oil and gas judge to dispose of a matter • On December 12, 2014, you lease agreement with EQT Production promptly, efficiently, and fairly. spoke with Officer Dave Adkins Company, which was a defendant in the • Canon 3E(1) which requires a to again complain about indi- case. Additionally, while presiding over the judge to disqualify himself or viduals parking in the private case you made direct contact with EQT herself in a proceeding in which parking lot of the church you officials on the following occasions: the judge’s impartiality might attend. You stated that it was • On April 1, 2014 you contacted reasonably be questioned. your duty as a judge to call and the EQT’s corporate office and • Canon 4A(1) which requires report criminal trespass. spoke with Division Order Ana- judges to conduct their extra-ju- • On December 16, 2014, you lyst, Thomas Gagliardino. You dicial activities so that they do spoke with Chief Reed regard- accused Gagliardino of per- not cast reasonable doubt on the ing Pike District Court Case petrating a fraud relative to judge’s capacity to act impartially No. 14-M-02239 styled Com- as a judge. monwealth v. Johndra Coleman. royalties you were owed by EQT. You demanded payment of em‑ • Canon 4A(2) which requires a During the call, you criticized bezzlement funds recovered by judge to conduct their extra-ju- the arresting officers’ actions in EQT from a former employer. dicial activities so that they do arresting the Defendant for public You accused EQT of violating not demean the judicial office. intoxication and accused them of the lease agreement and threat- • Canon 4A(3) which requires a making an unlawful arrest. You ened to lock them out of your judge to conduct their extra-ju- further alleged that the Police property. All of these statements dicial activities so that they do Department had made unlawful and accusations were made in a not interfere with the proper arrests in the past. You again com‑ belligerent and hostile manner. performance of judicial duties. plained that the Police Depart‑ • On or about the spring of 2014, ment was not arresting people you contacted Chris Grim, COUNT II for parking in the church parking EQT’s Assistant Superintendent During your tenure as Circuit Judge, you lot and complained about Offi- of Production to demand that made numerous inappropriate telephone cer Thompson’s reaction to your EQT place gravel on your prop- calls to the City of Pikeville Police Depart- December 11, 2014 call. erty despite the fact that EQT ment including: • On December 22, 2014, you was under no contractual obli- • On November 7, 2013, you called again spoke with Chief Reed gation to do so. After the work looking for Chief Phillip Reed. complaining that he had not was performed, you nevertheless When told that Chief Reed was followed up with you on the prevented EQT employees from at the airport and not available Johndra Coleman case. You again

34 | NOVEMBER/DECEMBER 2015 criticized the arresting officers’ • On numerous occasions, you con‑ ing and contentious phone calls actions and claimed that it was tacted Captain Edmonds and de‑ to City of Pikeville employees an unlawful arrest. You informed manded that a Police Officer including, but not limited to, the Chief Reed that you would con‑ be terminated for being involved City Manager and City Clerk. tact the Commonwealth Attor- in an accident with his daughter • You have made numerous harass‑ ney to indict any officer who you in the back seat of a squad car. ing and contentious phone calls felt made an unlawful arrest. You You also called Captain Edmonds to City of Pikeville elected threatened to contact the ACLU to complain about Officer Steve officials. and encourage them to file civil Adkins, referring to him as a • You referred to Pikeville City lawsuits against the Police De‑ “liar.” Commissioner Jerry Keith Cole- partment. You claimed that the man as “coke-head.” Police Department had inade- Your actions violate SCR 4.020(1)(b)(i) • You referred to Pikeville Mayor quate training because they did and constitute misconduct in office. Fur- Jimmy Carter as “fish face.” not obtain breathalyzer test thermore, your actions violate SCR 4.300 • You referred to City Manager results for public intoxication and the relevant portions of the following Donovan Blackburn as “Dumbo.” charges. You stated to Chief Canons of the Code of Judicial Conduct: • On August 28, 2008, you sent an Reed, “If you think you can arrest • Canon 1 which requires judges open records request to the City somebody for drinking on their to maintain high standards of of Pikeville on your official judi- private property, come on down conduct and uphold the integ- cial letterhead regarding the use here and try it with me.” You rity and independence of the of a public athletic field, a matter accused the Police Department Judiciary. unrelated to your judicial duties. of engaging in excessive force • Canon 2A which requires judges • On April 21, 2009, you sent an in a previous case and said you to respect and comply with the open records request to the City did not trust the Police Depart- law and act at all times in a man‑ Manager asking for ordinances ment. You indicated that you ner that promotes public confi‑ relating to the City’s supervision were going to subpoena Pikev- dence in the integrity and im‑ of the Pikeville Police Depart‑ ille Police Officers for hearings partiality of the judiciary. ment. they were otherwise not required • Canon 2D which prohibits judges • On March 4, 2011, you wrote a to attend because you did not from lending the prestige of jud‑ letter to the Pikeville City Man- trust their decision-making. You icial office to advance private in‑ ager on your official judicial alleged that the Exposition Center terests of the judge or others. letterhead regarding a personal could not sell tickets to concerts • Canon 3B(4) which requires matter unrelated to your judicial because of false arrests made by judges to be dignified and court‑ duties, accusing the Pikeville City the Police Department. You acc‑ eous to litigants, jurors, witnesses, Manager of libel and threatening used the Police Department of lawyers and others with whom the prosecution against individuals arresting a City Commission judge deals in an official capacity. who inspected property in Pike‑ candidate for political purposes. • Canon 4A(1) which requires ville, Kentucky. You also indicated that the mem‑ judges to conduct their extra-ju- • You wrote multiple letters on your bers of your church contacted you dicial activities so that they do official judicial stationary to the to address the issue of parking in not cast reasonable doubt on the Pikeville City Manager regard- their lot and that is what prom‑ judge’s capacity to act impartially ing personal matters unrelated to as a judge. pted your calls to the Police your judicial duties. Department. • Canon 4A(2) which requires a • On April 16, 2012, you threat- • On December 30, 2014, you con‑ judge to conduct their extra-ju- ened to take legal action against tacted Captain Chris Edmonds dicial activities so that they do City employees for enforcing a demanding an investigation on not demean the judicial office. local ordinance that resulted in automated calls you received • Canon 4A(3) which requires a a fine levied against your moth- regarding drinking and driving judge to conduct their extra-ju- er-in-law. You also indicated that during the holidays. You then dicial activities so that they do you would rule against the City said that the next officer who not interfere with the proper per‑ in any actions to enforce the pulled you over would get a “bul‑ formance of judicial duties. ordinance brought before you in let in the head.” When con- Pike Circuit Court. The City Ad‑ fronted with this statement you COUNT III ministrator ultimately waived replied, “I’m elected by the people During your tenure as Circuit Judge, you the fine. and not pieces of trash like you engaged in multiple instances of inappro- • On October 15, 2012, you called all.” You then referred to the priate interactions with elected officials and the City Clerk and accused City Police Department as a “bunch employees of the City of Pikeville including: employees of pulling up political of thieves.” • You have made numerous harass‑ signs for candidates opposing

BENCH & BAR | 35 BAR NEWS

incumbent City Commissioners. call you claimed the program was do not interfere with the proper You then threatened to file a com‑ politically motivated and would performance of judicial duties. plaint against a city employee. violate the station’s license. You • On November 8, 2012, you made also said you would ensure the COUNT V multiple calls to the Pikeville City program was pulled from the During your tenure as Circuit Judge, you Clerk complaining of a sewer airwaves. made numerous inappropriate phone calls issue. During these calls, you • On or about June 2013, you con- to Pikeville Attorney Ray Jones who reg‑ threatened to contact the U.S. tacted Greenfield demanding ularly practices before you in Pike Cir- Attorney’s office to file a formal that a program featuring Pikev- cuit Court. During these calls, you left complaint. ille City Commissioner Barry voice messages in which you referred to Chaney be pulled from the air- Your actions violate SCR 4.020(1)(b)(i) Jones as a “coward” and “prick.” You then waves claiming that the program demanded that Jones return your call. and constitute misconduct in office. Your broke the law and was politically actions furthermore violate SCR 4.300 motivated. Your actions violate SCR 4.020(1)(b)(i) and the relevant portions of the following • On June 11, 2013, you called Canons of the Code of Judicial Conduct: and constitute misconduct in office. Your Greenfield to complain that the actions also violate SCR 4.300 and the • Canon 1 which requires judges program featuring Commissioner to maintain high standards of relevant portions of the following Canons Chaney was still airing. When of the Code of Judicial Conduct: conduct and uphold the integ- Greenfield refused to remove the rity and independence of the • Canon 1 which requires judges program, you threatened to go to to maintain high standards of judiciary. the Internal Revenue Service for • Canon 2A which requires judges conduct and uphold the integ- the purpose of revoking the Pike rity and independence of the to respect and comply with the TV’s license to broadcast. law and act at all times in a man‑ judiciary. ner that promotes public con- Your actions violate SCR 4.020(1)(b)(i) • Canon 2A which requires judges fidence in the integrity and and constitute misconduct in office. Your to respect and comply with the impartiality of the judiciary. actions furthermore violate SCR 4.300 law and act at all times in a man‑ • Canon 2D which prohibits and the relevant portions of the following ner that promotes public con- judges from lending the pres- Canons of the Code of Judicial Conduct: fidence in the integrity and tige of judicial office to advance • Canon 1 which requires judges impartiality of the judiciary. private interests of the judge or to maintain high standards of • Canon 2D which prohibits others. conduct and uphold the integ- judges from lending the pres- • Canon 4A(1) which requires rity and independence of the tige of judicial office to advance judges to conduct their extra-ju- judiciary. private interests of the judge or dicial activities so that they do • Canon 2A which requires judges others. not cast reasonable doubt on the to respect and comply with the • Canon 3B(4) which requires judge’s capacity to act impartially law and act at all times in a judges to be dignified and court‑ as a judge. manner that promotes public eous to litigants, jurors, witness‑ • Canon 4A(2) which requires a confidence in the integrity and es, lawyers and others with judge to conduct their extra-ju- impartiality of the judiciary. whom the judge deals in an dicial activities so that they do • Canon 2D which prohibits official capacity. not demean the judicial office. judges from lending the pres- • Canon 4A(3) which requires a tige of judicial office to advance COUNT VI judge to conduct their extra-ju- private interests of the judge or During your tenure as Circuit Judge, you dicial activities so that they do others. engaged in inappropriate political activity not interfere with the proper • Canon 4A(1) which requires including: performance of judicial duties. judges to conduct their extra-ju- • In 2010, you contacted the City dicial activities so that they do of Pikeville City Manager Don- COUNT IV not cast reasonable doubt on the ovan Blackburn and accused During your tenure as Circuit Judge, you judge’s capacity to act impartially him of supporting Darryl Pugh, made numerous inappropriate communi- as a judge. a candidate for County Magis-

cations with Pike TV Channel Manager • Canon 4A(2) which requires a trate. When Blackburn denied Albert Greenfield, including: judge to conduct their extra-ju- the accusation, you called him • In the spring of 2011 or 2012 you dicial activities so that they do a liar. contacted Greenfield to complain not demean the judicial office. • On or about April 2014, you about a program featuring various • Canon 4A(3) which requires a contacted Pikeville Police Chief elected officials speaking about judge to conduct their extra- Phillip Reed and requested a coal severance funds. During the judicial activities so that they permit for Mayoral candidate TJ

36 | NOVEMBER/DECEMBER 2015 Litafik to operate a golf cart dur‑ COUNT VII manner that promotes public ing the Hillbilly Days festival. During your tenure as Circuit Judge, you confidence in the integrity and • On or about October 2014, you made numerous inappropriate statements impartiality of the judiciary. contacted Attorney Ray Jones on Topix including: • Canon 2D which prohibits and chastised him for having a • On December 27, 2014, you com‑ judges from lending the pres- political sign in his front yard in mented on a post entitled “New tige of judicial office to advance support of Mayoral candidate Judge Mayor” under the user- private interests of the judge or Jimmy Carter. name “LOL” in which you said: others. • On or about November 2014 you “Fishface will do whatever a • Canon 4A(1) which requires contacted Greg May, owner of certain commissioner tells him judges to conduct their extra-ju- the Utility Management Group, to do.” dicial activities so that they do and chastised him for assisting • On January 14, 2015, you com- not cast reasonable doubt on the Mayoral candidate Jimmy Carter mented on a post entitled “JK judge’s capacity to act impartially and an incumbent City Com- Coleman Is Stupid” under the as a judge. mission candidate in filming a username “Better Call Wusty” • Canon 4A(2) which requires a television commercial. in which you said: “Better watch judge to conduct their extra-ju- • Prior to the 2014 General Elec- our little babies will get mad. dicial activities so that they do tion, you contacted Sheriff-elect How much paper have the City not demean the judicial office. Rodney Scott and asked him to Crybabies wasted at City Hall attend a political fundraiser for printing threads off Topix so COUNT VIII a Mayoral candidate TJ Litafik. they can cry about it to each On April 4, 2012, you presided over a other and so Little Donovan can Your actions violate SCR 4.020(1)(b)(i) status hearing in Pike Circuit Court, Case plead with Attorney General and constitute misconduct in office. Your No. 11-CI-01455 styled Nicole Hall v. Wusty to do something to stop actions also violate SCR 4.300 and the Unknown Defendants more than two this shamefulness toward the relevant portions of the following Canons months after the case was voluntarily Great City Commission and of the Code of Judicial Conduct: dismissed. During the hearing you ques- Anointed Town Puppets?!?!” • Canon 1 which requires judges tioned Attorney Kevin Keene as to his • On January 15, 2015, you com- to maintain high standards of motivations behind bringing the lawsuit. mented on a post entitled “City conduct and uphold the integ- You then accused Keene of engaging in Puppets Beware” under the user- rity and independence of the unethical behavior by issuing improper name “Imma Tellinyou” in which judiciary. subpoenas. You also engaged in ex-parte you said: “Dumbo Donovan, • Canon 2A which requires judges communications with Michael DeBourbon, Ratfink Rusty, Fishface Jimmy, to respect and comply with the an attorney involved in the case prior to Jerry Keith the Stupid Bartender law and act at all times in a the hearing. and Retarded Reed the Little manner that promotes public Police Chief…” confidence in the integrity and Your actions violate SCR 4.020(1)(b)(i) • On January 16, 2015, you com- impartiality of the judiciary. and constitute misconduct in office. Your mented on a post entitled “City • Canon 2D which prohibits actions also violate SCR 4.300 and the Puppets Beware” under the user- judges from lending the pres- relevant portions of the following Canons name “City Hall Patrol” in which tige of judicial office to advance of the Code of Judicial Conduct: you said: “The Puppets had best private interests of the judge or • Canon 1 which requires judges beware and not do things most others. to maintain high standards of little town councils would not • Canon 4A(1) which, requires conduct and uphold the integ- dare.” judges to conduct their extra-ju- rity and independence of the judiciary. dicial activities so that they do Your actions violate SCR 4.020(1)(b)(i) • Canon 2A which requires judges not cast reasonable doubt on the and constitute misconduct in office. Your to respect and comply with the judge’s capacity to act impartially actions also violate SCR 4.300 and the law and act at all times in a as a judge. relevant portions of the following Canons manner that promotes public • Canon 4A(2) which requires a of the Code of Judicial Conduct: confidence in the integrity and judge to conduct their extra-ju- • Canon 1 which requires judges impartiality of the judiciary. dicial activities so that they do to maintain high standards of • Canon 2D which prohibits not demean the judicial office. conduct and uphold the integ- judges from lending the pres- • Canon 5A(1)(c) which prohibits rity and independence of the tige of judicial office to advance a judge from publicly endorsing judiciary. private interests of the judge or or opposing a candidate for • Canon 2A which requires judges others. public office. to respect and comply with the • Canon 3B(2) which prohibits law and act at all times in a

BENCH & BAR | 37 BAR NEWS

judges from being swayed by COUNT X qualifications for the judgeship in partisan interests. During your tenure as Circuit Judge, question. • Canon 3B(4) which requires you solicited financial contributions from For your information, the Commission judges to be dignified and court‑ Attorneys Ray Jones, Gary Johnson, Billy calls your attention to the following eous to litigants, jurors, witnesses, Johnson, and other attorneys who regu- Supreme Court Rule: lawyers and others with whom larly appear before you in Pike Circuit the judge deals in an official Court for the local high school golf team. capacity. RULE 4.180 FORMAL PRO- • Canon 3B(7) which prohibits a Your actions violate SCR 4.020(1)(b)(i) CEEDINGS judge from engaging or consid- and constitute misconduct in office. Your If the Commission concludes that formal ering ex-parte communications. actions also violate SCR 4.300 and the proceedings should be initiated, it shall • Canon 3B(8) which requires relevant portions of the following Canons notify the judge. He may file an answer a judge to dispose of a matter of the Code of Judicial Conduct: within 15 days after service of the notice. promptly, efficiently, and fairly. • Canon 1 which requires judges Upon the filing of his answer, or the to maintain high standards of expiration of time for so filing, the Com- COUNT IX conduct and uphold the integ- mission shall set a time and place for the On or about November 2014, you pre- rity and independence of the hearing and shall give reasonable notice sided over Pike Circuit Court Case No. judiciary. thereof to the judge. 14-CI-01224 styled Joshua Huffman, • Canon 2A which requires judges et al. v. Lillian Pearl Elliott, et al. which to respect and comply with the Please mail your Answer to: Ms. Jimmy involved a challenge to the outcome of law and act at all times in a Shaffer, Executive Secretary, Kentucky the 2014 general election for City Com- manner that promotes public Judicial Conduct Commission, P.O. Box mission. Despite expressing an interest in confidence in the integrity and 4266, Frankfort, KY 40604-4266. the outcome of the City Commission race impartiality of the judiciary. and criticizing incumbent candidates on • Canon 2D which prohibits April 27, 2015 multiple occasions, you entered a Final judges from lending the pres- Judgment and Permanent Injunction dis‑ tige of judicial office to advance qualifying a candidate for City Commis- private interests of the judge or ______/s/______sion and naming another candidate as the others. STEPHEN D. WOLNITZEK, CHAIR successful candidate. KENTUCKY JUDICIAL CONDUCT JURISDICTION COMMISSION Your actions violate SCR 4.020(1)(b)(i) The jurisdiction of the Judicial Conduct and constitute misconduct in office. Your Commission in this matter is under SCR Judge Janet Stumbo and Judge Eddy actions also violate SCR 4.300 and the 4.020(1)(b)(i) and (v), and (1)(c) which Coleman recused themselves from any relevant portions of the following Canons read, in pertinent part, as follows: consideration of this matter. of the Code of Judicial Conduct: (1) Commission shall have • Canon 1 which requires judges authority: I hereby certify that copy hereof was served to maintain high standards of (b) To impose the sanctions on Steven D. Combs, Pike Circuit Court conduct and uphold the integ- separately or collectively of (1) Judge, by mailing same to his attorney, rity and independence of the admonition, private reprimand, Hon. Kent Wicker, 321 West Main Street, judiciary. public reprimand or censure; Suite 2100, Louisville, KY 40202 this 27th • Canon 2A which requires judges (2) suspension without pay or day of April, 2015. to respect and comply with the removal or retirement from law and act at all times in a judicial office, upon any judge manner that promotes public of the Court of Justice or lawyer ______/s/______confidence in the integrity and while a candidate for judicial JIMMY SHAFFER, impartiality of the judiciary. office, who after notice and EXECUTIVE SECRETARY • Canon 3B(2) which prohibits hearing the Commission finds judges from being swayed by guilty of any one or more of the partisan interests. following: • Canon 3E(1) which requires a (i) Misconduct in office. judge to disqualify himself or herself in a proceeding in which (v) Violation of the code of the judge’s impartiality might Judicial Conduct, Rule 4.300. reasonably be questioned. (c) After notice and hearing to • Canon 3B(8) which requires remove a judge whom it finds to a judge to dispose of a matter lack the constitutional statutory promptly, efficiently, and fairly.

38 | NOVEMBER/DECEMBER 2015 COMMONWEALTH OF and used profanities. any one or more of the following: KENTUCKY JUDICIAL (i) Misconduct in office. Your actions violate SCR 4.020(1)(b)(i) CONDUCT COMMISSION and constitute misconduct in office. Your (v) Violation of the code of Judicial Conduct, Rule 4.300. IN RE THE MATTER OF: actions furthermore violate SCR 4.300 and the relevant portions of the following (c) After notice and hearing to STEVEN D. COMBS, CIRCUIT Canons of the Code of Judicial Conduct: remove a judge whom it finds to COURT JUDGE 35TH JUDICIAL • Canon 1 which requires judges lack the constitutional statutory CIRCUIT to maintain high standards of qualifications for the judgeship conduct and uphold the integ- in question. rity and independence of the AMENDED NOTICE OF judiciary. For your information, the Commission calls FORMAL PROCEEDINGS • Canon 2A which requires judges your attention to the following Supreme AND CHARGES to respect and comply with the Court Rule: Notice is hereby given of the initiation of law and act at all times in a RULE 4.180 FORMAL formal proceedings under Rule 4.180 of manner that promotes public PROCEEDINGS Rules of the Supreme Court. At the times confidence in the integrity and If the Commission concludes set out in this Notice, you were Circuit impartiality of the judiciary. that formal proceedings should Court Judge for Kentucky’s 35th Judicial • Canon 2D which prohibits be initiated, it shall notify the Circuit located in Pike County. The charges judges from lending the pres- judge. He may file an answer in the Notice of Formal Proceedings and tige of judicial office to advance within 15 days after service of Charges filed on April 27, 2015 (herein- private interests of the judge or the notice. Upon the filing of after referred to as the “Original Notice”), others. his answer, or the expiration of are adopted by reference in this Amended • Canon 4A(1) which requires time for so filing, the Commis- Notice. The Charges are as follows: judges to conduct their extra-ju- sion shall set a time and place dicial activities so that they do for the hearing and shall give COUNTS I - X not cast reasonable doubt on the reasonable notice thereof to the The charges in Counts I – X in the Original judge’s capacity to act impartially judge. Notice are adopted by reference as Count as a judge. I of this notice. • Canon 4A(2) which requires a Please mail your Answer to: Ms. Jimmy judge to conduct their extra-ju- Shaffer, Executive Secretary, Kentucky COUNT XI dicial activities so that they do Judicial Conduct Commission, P.O. Box During your tenure as Circuit Judge, you not demean the judicial office. 4266, Frankfort, KY 40604-4266. made numerous inappropriate communi- • Canon 4A(3) which requires a June 2, 2015 cations with employees of the Appalachia judge to conduct their extra-ju- News Express, including: dicial activities so that they do • On or about August 20, 2013, you not interfere with the proper ______/s/______contacted Appalachia News Ex‑ performance of judicial duties. STEPHEN D. WOLNITZEK, CHAIR press Publisher, Jeff Vanderbeck, KENTUCKY JUDICIAL CONDUCT COMMISSION to complain about an article JURISDICTION published under the headline, The jurisdiction of the Judicial Conduct “Felony assault charge against Commission in this matter is under SCR Judge Janet Stumbo and Judge Eddy teenager dismissed by grand 4.020(1)(b)(i) and (v), and (1)(c) which Coleman recused themselves from any jury.” During your conversation read, in pertinent part, as follows: consideration of this matter. you used profanities and called (1) Commission shall have Mr. Vanderbeck derogatory authority: I hereby certify that copy hereof was served names. You also threatened Mr. on Steven D. Combs, Pike Circuit Court Vanderbeck stating, “I’m going (b) To impose the sanctions Judge, by mailing same to his attorneys, to come to your house and shoot separately or collectively of (1) Hon. Kent Wicker, 321 West Main Street, you and run your family out of admonition, private reprimand, Suite 2100, Louisville, KY 40202; Stephen town.” public reprimand or censure; P. Ryan, 7104 Hillcircle Court, Louisville, • In the fall of 2013, you contacted (2) suspension without pay or KY 40214 this 2nd day of June, 2015. sports editor, Randy White, to removal or retirement from judicial office, upon any judge of the complain that your son was not ______/s/______Court of Justice or lawyer while receiving enough coverage in the JIMMY SHAFFER, a candidate for judicial office, sports section. During this con‑ EXECUTIVE SECRETARY versation you raised your voice who after notice and hearing the Commission finds guilty of

BENCH & BAR | 39 BAR NEWS

COMMONWEALTH OF KENTUCKY • Canon 2A which requires judges to respect and comply JUDICIAL CONDUCT COMMISSION with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality IN RE THE MATTER OF: of the judiciary. • Canon 2D which prohibits judges from lending the pres- STEVEN D. COMBS, CIRCUIT COURT JUDGE tige of judicial office to advance private interests of the TH 35 JUDICIAL CIRCUIT judge or others. • Canon 3B(8) which requires a judge to dispose of a matter SECOND AMENDED NOTICE OF FORMAL promptly, efficiently, and fairly. PROCEEDINGS AND CHARGES • Canon 3E(1) which requires a judge to disqualify himself Notice is hereby given of the initiation of formal proceedings or herself in a proceeding in which the judge’s impartial- under Rule 4.180 of Rules of the Supreme Court. At the times set ity might reasonably be questioned. out in this Notice, you were Circuit Court Judge for Kentucky’s 35th Judicial Circuit located in Pike County. The charges in the COUNT XIII Notice of Formal Proceedings and Charges filed on April 27, During a temporary suspension hearing held before the Com- 2015 (hereinafter referred to as the “Original Notice”) and the mission on June 16, 2015, you testified under oath that you had Amended Notice of Formal Proceedings and Charges (hereinafter disclosed, on the record, your financial relationship with EQT referred to as the “First Amended Notice”) are adopted by reference Production Company in all cases which you presided as judge. in this Second Amended Notice. The Charges are as follows: A review of all pleadings and recorded hearings in the cases ident‑ COUNTS I - XI ified in Count XII failed to identify any disclosures of your relationship with EQT Production Company on the record. The charges in Counts I – X in the Original Notice and Count XI in the First Amended Notice is adopted by reference as Counts Your actions violate SCR 4.020(1)(b)(i) and constitute miscon- I – XI of this notice. duct in office. Your actions furthermore violate SCR 4.300 and the relevant portions of the following Canons of the Code of Judicial COUNT XII Conduct: During your tenure as Circuit Judge, you presided over the fol- • Canon 1 which requires judges to maintain high standards lowing cases in which EQT Production Company, or one of its of conduct and uphold the integrity and independence subsidiaries, was a party to the action despite the fact that you had of the judiciary. an a financial relationship with EQT Production Company and • Canon 2A which requires judges to respect and comply without disclosing such relationship on the record: with the law and act at all times in a manner that pro- • 09-CI-431, Fleming, et al. v. Equitable Production Co.; motes public confidence in the integrity and impartiality • 09-CI-660, Justice, et al. v. EQT Production Co.; of the judiciary. • 09-CI-1179, Johnson, et al. v. EQT Production Co.; • 10-CI-116, Edmiston et al. v. EQT Production Company; JURISDICTION • 10-CI-722, May, et al. v. EQT Production Co.; The jurisdiction of the Judicial Conduct Commission in this matter • 10-CI-926, Pilgrim Energy, Inc. v. EQT Production Co.; is under SCR 4.020(1)(b)(i) and (v), and (1)(c) which read, in per- • 10-CI-1840, Roberts, et al. v. EQT Production Co.; tinent part, as follows: • 11-CI-352, Hopkins, et al. v. Childers, et al. (1) Commission shall have authority: • 11-CI-546, Potter, et al. v. EQT Production Co.; (b) To impose the sanctions separately or collectively • 11-CI-567, Potter v. Blue Flame Energy; of (1) admonition, private reprimand, public reprimand • 11-CI-615, Johnson v. EQT Production Co.; or censure; (2) suspension without pay or removal or • 11-CI-899, Coleman v. EQT Production Co.; retirement from judicial office, upon any judge of the • 11-CI-939, EQT Production Co. v. Johnson; Court of Justice or lawyer while a candidate for judicial • 11-CI-1161, Wright v. EQT Production Co.; office, who after notice and hearing the Commission • 11-CI-624, Stalnaker v. EQT Production Co.; finds guilty of any one or more of the following: • 13-CI-680, Williamson, et al v. EQT Gathering, LLC; (i) Misconduct in office. • 13-CI-1258, EQT Gathering, LLC v. Robinson Your actions violate SCR 4.020(1)(b)(i) and constitute miscon- (v) Violation of the code of Judicial Conduct, Rule duct in office. Your actions furthermore violate SCR 4.300 and the 4.300. relevant portions of the following Canons of the Code of Judicial (c) After notice and hearing to remove a judge whom Conduct: it finds to lack the constitutional statutory qualifications • Canon 1 which requires judges to maintain high for the judgeship in question. standards of conduct and uphold the integrity and inde- For your information, the Commission calls your attention to the pendence of the judiciary. following Supreme Court Rule:

40 | NOVEMBER/DECEMBER 2015 RULE 4.180 FORMAL PROCEEDINGS I hereby certify that copy hereof was served on Steven D. Combs, If the Commission concludes that formal proceedings Pike Circuit Court Judge, by mailing same to his attorneys, Rich- should be initiated, it shall notify the judge. He may ard A. Getty and Danielle H. Brown, 1900 Lexington Financial file an answer within 15 days after service of the notice. Center, 250 West Main Street, Lexington, KY 40507; Hon. Kent Upon the filing of his answer, or the expiration of time Wicker, 321 West Main Street, Suite 2100, Louisville, KY 40202; for so filing, the Commission shall set a time and place Stephen P. Ryan, 7104 Hillcircle Court, Louisville, KY 40214 this th for the hearing and shall give reasonable notice thereof 7 day of August, 2015. to the judge. Please mail your Answer to: Ms. Jimmy Shaffer, Executive Sec- ______/S/______retary, Kentucky Judicial Conduct Commission, P.O. Box 4266, JIMMY SHAFFER, Frankfort, KY 40604-4266. EXECUTIVE SECRETARY August 7, 2015

______/s/______STEPHEN D. WOLNITZEK, CHAIR KENTUCKY JUDICIAL CONDUCT COMMISSION Judge Janet Stumbo and Judge Eddy Coleman recused themselves from any consideration of this matter.

COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION ORDER OF PRIVATE REPRIMAND The Commission issues this order of private reprimand to a judge for violation of the Code of Judicial Conduct, SCR 4.300, Canons 1 and 3B(4).

During a hearing, the judge used multiple profanities over the fact that certain information was not provided to the judge during the hearing.

The judge acknowledges that the comments were inappropriate but states that they were made out of frustration and were not intended to be rude. The judge further identified certain private information that occurred earlier in the day that contributed to his behavior. The judge informed the Commission that such behavior would not occur again in the future. KBA TERM LIFE & OWN OCCUPATION DISABILITY PLANS The Commission appreciates the judge’s candor. However, all judges must be patient, dignified and courteous to those with whom the judge deals with in an official capacity. Based upon the foregoing conduct, the judge is hereby privately reprimanded. Simplified, non-medical application for up to

In issuing this private reprimand, the $500k in life and $10k/mo in disability Commission duly considered that the judge fully cooperated in the investigation.

Date: October 9, 2015

______/s/______Call or Email TODAY | 800.928.6421 | [email protected] | www.NIAI.com J. David Boswell, Chair NIA IS THE KBA LIFE & DISABILITY PLAN ADMINISTRATOR. *EXAMS OR ADDITIONAL INFO MAY BE REQUIRED WITH CERTAIN MEDICAL HISTORIES. MUST BE UNDER 40 TO APPLY FOR $500K IN LIFE AND UNDER 50 TO APPLY FOR $10K/MO IN DISABILITY.

BENCH & BAR | 41 BAR NEWS UNITED STATES POSTAL SERVICE STATEMENT OF OWNERSHIP, MANAGEMENT, AND CIRCULATION Publication Title: B&B-Bench & Bar. Publication Number: 1521-6497. Filing Date: September 28, 2015.

he B&B-Bench & Bar is published Bi-monthly by the Ken- e. Total Free or Nominal Rate Distribution: 69 tucky Bar Association, 514 West Main Street, Frankfort, KY f. Total Distribution: 18,218 T40601-1812, (502) 564-3795. g. Copies not Distributed: 49 Number of issues Published Annually: Six. h. Total: 18,267 Annual Subscription Price: $20.00. i. Percent Paid: 99% Contact Person: Shannon H. Roberts. No. Copies of Single Issue Published Nearest The General Business Office of the Publisher is at the Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812. to Filing Date a. Total Number of Copies: 18,400 The Full Names and Complete Mailing Addresses of Publisher, b. Paid Circulation (By Mail and Outside the Mail) Editor, and Managing Editor are: Publisher, John D. Meyers, 1. Mailed Outside-County Paid Subscriptions Stated Kentucky Bar Association, 514 West Main Street, Frankfort, KY on PS Form 3541: 18,278 40601-1812; Editor, James P. Dady, Kentucky Bar Association, 514 2. Mailed In-County Paid Subscriptions Stated on West Main Street, Frankfort, KY 40601-1812; Managing Editor, PS Form 3541: 0 Shannon H. Roberts, Kentucky Bar Association, 514 West Main 3. Paid Distribution Outside the Mail Including Street, Frankfort, KY 40601-1812. Sales Through Dealers and Carriers, Street Ven- dors, Counter Sales, and Other Paid Distribution The Owner of the publication is the Kentucky Bar Association, Outside USPS: 0 514 West Main Street, Frankfort, KY 40601-1812. There are no 4. Paid Distribution by Other Classes of Mail Through Known Bondholders, Mortgagees, and Other Security Holders the USPS: 0 Owning or Holding 1 Percent or More of Total Amount of Bonds, c. Total Paid Distribution: 18,278 Mortgages, or Other Securities. d. Free or Nominal Rate Distribution (By Mail and The Tax Status Has Not Changed During Preceding 12 Months. Outside the Mail) 1. Free or Nominal Rate Outside-County Copies Publication Title: B&B-Bench & Bar included on PS Form 3541: 0 Issue Date for Circulation Data Below: July 31, 2015 2. Free or Nominal Rate In-County Copies included on PS Form 3541: 0 Extent and Nature of Circulation 3. Free or Nominal Rate Copies Mailed at Other Average No. Copies Each Issue During Preceding 12 Months: Classes Through the USPS: 4 a. Total Number of Copies: 18,267 4. Free or Nominal Rate Distribution Outside the b. Paid Circulation (By Mail and Outside the Mail) Mail: 54 1. Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 18,149 e. Total Free or Nominal Rate Distribution: 58 2. Mailed In-County Paid Subscriptions Stated on f. Total Distribution: 18,336 PS Form 3541: 0 g. Copies not Distributed: 64 3. Paid Distribution Outside the Mail Including Sales h. Total: 18,400 Through Dealers and Carriers, Street Vendors, i. Percent Paid: 99% Counter Sales, and Other Paid Distribution Out- If you are claiming electronic copies, go to line 16 on page 3. If side USPS: 0 you are not claiming electronic copies, skip to line 17 on page 3. 4. Paid Distribution by Other Classes of Mail Through the USPS: 0 Publication of Statement of Ownership c. Total Paid Distribution: 18,149 If the publication is a general publication, publication of this state- d. Free or Nominal Rate Distribution (By Mail and ment is required. Will be printed in the November 25, 2015 issue Outside the Mail) of this publication. 1. Free or Nominal Rate Outside-County Copies included on PS Form 3541: 0 I certify that all information furnished is true and complete. I 2. Free or Nominal Rate In-County Copies included understand that anyone who furnishes false or misleading informa- on PS Form 3541: 0 tion on this form or who omits material or information requested on 3. Free or Nominal Rate Copies Mailed at Other the form may be subject to criminal sanctions (including fines and Classes Through the USPS: 10 imprisonment) and/or civil sanctions (including civil penalties). 4. Free or Nominal Rate Distribution Outside the John D. Meyers, Publisher, September 24, 2015 Mail: 59

42 | NOVEMBER/DECEMBER 2015 BAR NEWS THE KBA CONGRATULATES ITS NEWEST MEMBERS

ew attorneys received their oaths of office on Monday, October 19, in the chamber of the Supreme Court of Kentucky in the state Capitol in Frankfort. The KBA continued its tradition of honoring its newest members, their families and friends with a Nreception in their honor throughout the day at the Kentucky Bar Center. A total of 269 new attorneys were recommended for admittance to the practice of law following the July 2015 bar examination.

Deputy Chief Justice Mary C. Noble addresses the new attorneys from District Five during their swearing in ceremony in the State Capitol on Monday, Oct. 19, 2015.

New KBA member, Lauren Rose Givhan of Louisville, poses with her grandfather Justice Michelle M. Keller celebrates with KBA member, Thomas B. Givhan of Shep- new attorney, Jack Phillips, and his parents, herdsville, while enjoying the reception at attorneys Susan and John Phillips of Louis- the Kentucky Bar Center. Ms. Givhan is ville, outside the Supreme Court chamber. a 5th generation attorney.

Whitney Stepp of Lexington proudly displays her admission certificate after participating in District Five’s swearing in Frank Yozwiak of Lexington, second from left, enjoys his first day as a new attorney with ceremony. his girlfriend Alyssa Heitmann, as well as his mother and father, Ray and Bobbie Yozwiak.

BENCH & BAR | 43 BAR NEWS summary of minutes kba board of GOVERNORS MEETING JULY 17, 2015

The Board of Governors met on Friday, July 17, 2015. Officers and Client Security Fund and Inquiry Commission, are being Bar Governors in attendance were, President D. Farnsley; Presi- finalized. dent-Elect M. Sullivan; Vice President W. Garmer; Immediate Past • President Douglass Farnsley reported that the Diversity & President B. Johnson; Young Lawyers Division Chair T. Watkins; st Inclusion Summit Planning Committee held a meeting on and Incoming YLD Chair R. Schafer. Bar Governors 1 District July 16 to begin the planning process for future Summits. –M. Pitman, F. Schrock; Bar Governors 2nd District – T. Kerrick, J. Meyer; 3rd District – H. Mann; 4th District – A. Cubbage, B. • Heard the year-end financial summary from Director of Simpson; 5th District – M. Barfield; 6th District – G. Sergent; and Accounting/Membership Michele Pogrotsky. th 7 District – M. McGuire, J. Vincent. Bar Governors absent were: • Pogrotsky reported that the KBA is working with a new M. Dalton, E. O’Brien and S. Smith. company and new membership software to assist with coordinating the dues statements and they are scheduled In Regular Session, the Board of Governors conducted the fol- to be mailed out by the end of July. lowing business: • Approved charging a $25.00 fee for returned checks. The • Past President and current Long Range Committee Chair members will be notified about the return check fee via the Douglas Myers reviewed with the Board the Long Range website and it will also be printed on the dues statements. Strategic Planning Project tasks and goals currently being considered. The Committee members consist of KBA • Approved the following appointments to the Kentucky Past Presidents Charles E. “Buzz” English, Jr., of Bowling, Bar Foundation: Douglass Farnsley of Louisville in his Margaret E. Keane of Louisville and Thomas L. Rouse of capacity as KBA president, William E. Johnson of Frank- Erlanger; KBA Past Bar Governors Richard Hay of Som- fort in his capacity as past president and Bob Sanders of erset and Randy May of Hazard; UofL Brandeis School Covington for the Sixth Supreme Court District. of Law Dean Susan Duncan, UK College of Law Assis- • Approved the appointment of KBA President-Elect R. tant Dean Danny Murphy, Past Young Lawyer Division Michael Sullivan as the KBA president’s designee to the Chair Jackie Sue Wright of Maysville, and Ben Stewart of IOLTA Board of Trustees. Paducah. Myers reported that the first step in the project • Approved the reappointment of Robert C. Ewald of Lou- will be to conduct an on-line membership survey, followed isville, George E. Long II of Benton and Jerry D. Truitt of by interviews with stakeholder groups who have an inter- Lexington to serve on the Special Conflicts Committee est in KBA operations, such as law schools, the specialty for another one-year term expiring on June 30, 2016. bars, and regional bar leaders. • President Farnsley advised the Board that the Supreme • Heard the Annual Bar Counsel Disciplinary Statistical Court has requested that the Board submit three Board of Report from Chief Bar Counsel Thomas Glover. Governors’ names as appointment recommendations for • Young Lawyers Division Chair (YLD) J. Tanner Watkins each of the three Supreme Court Rules Committees: Civil, introduced Chair-Elect Rebecca Schafer and stated that Criminal and Supreme Court Rules. President Farnsley she will be attending the Board meetings and starting in requested those bar governors interested in serving should January 2016 will attend the Executive Committee meet‑ email him. ings. Watkins reported on the following activities of the • Approved the appointment of R. Kent Westberry of Lou- YLD: 2015 Annual Convention, U@18 Program, Bully isville as a non-board member appointment to the KBA Proof Program, Disaster Legal Services, Legal Aid Uni‑ Rules Committee. versity, Networking Social Events, 2016 Annual Con- vention and a future proposal to help increase the YLD • President Farnsley reported that the Executive Committee membership. has asked the Budget & Finance and Rules Committees to review and discuss the possibility of creating two cat- • President-Elect R. Michael Sullivan reviewed with the egories for senior counsel status. Board that it is his responsibility to chair the 2016-2017 Budget & Finance Committee. He advised that at this • President Farnsley reported on a program in Tennessee time Bar Governors Amy Cubbage and Steve Smith have that matches volunteer lawyers with individuals who need agreed to serve and that the Committee member appoint‑ legal advice but cannot afford it. He advised that this ments, including representatives from the CLE Commission, program is coordinated with Tennessee legal aid groups

44 | NOVEMBER/DECEMBER 2015 and has been very successful. President Farnsley advised that they reached out to Kentucky with an offer of free software sev- To KBA Members eral years ago and that Louisville Aid Legal Society Executive Director Jeff Been has Do you have a matter to discuss with the KBA’s Board of Governors? been working on this project seeking grant Board meetings are scheduled on funding to get the program operational. January 15-16, 2016 President Farnsley advised that he and March 18-19, 2016 Meyers will be meeting with Been and his staff over the next few weeks to discuss To schedule a time on the Board’s agenda at one of these meetings, moving forward with this initiative. please contact John Meyers or Melissa Blackwell at (502) 564-3795. • President Farnsley reported that the 2016 Annual Convention will be held on May 11-13 in Louisville. Headquarter Hotel will be the Marriott with the CLE pro‑ gramming at the convention center. President Farnsley reported that Susan Phillips will serve as the Annual Conven- tion Planning Committee chair and Carl Frazier as the CLE Planning Committee chair. • President Farnsley advised that the KLU Programs will begin in September and he plans to host receptions the night before each KLU to continue to have the opportunity to talk with the local area bar leaders, judiciary and past KBA leaders. • Approved the signing of the ABA Com‑ mission on Disability Rights Pledge to promote full and equal participation for lawyers with disabilities throughout the profession. • Director of Administration Melissa Black- well reported that the renovations to the Board Room begin on July 1 and should be completed by the end of August. • Approved the revision to the KBA Staff Dress Code Policy. • Blackwell provided an update on the IT Audit. • Blackwell advised that the Magna Carta display will be at the Kentucky State Fair from August 20 to August 30. • Approved the proposed Bylaws for the LGBT Section. • Approved the appointment of the 2015-16 Officers for the Workers’ Comp Section: Peter Naake as chair, Lee Jones as chair- elect and Ann Lawyers as vice chair. • Blackwell reported that the Supreme Court appointed Jason Darnall of Benton and David B. Sloan of Covington to the CLE Commission.

BENCH & BAR | 45 BAR NEWS

KENTUCKY COMMISSION ON HUMAN RIGHTS AND THE UK COLLEGE OF LAW WILL HOLD A SYMPOSIUM IN HONOR OF THE KENTUCKY CIVIL RIGHTS ACT OF 1966

“This is a milestone for a southern state…a great step forward for any state. [It] will serve as a great beacon of light for all men of goodwill…and hopefully inspire other states to follow suit.” - Dr. Martin Luther King (circa 1966)

n Jan. 27, 2016, the Kentucky Commission on Human prohibits discrimination in employment, public accommodations, Rights, in conjunction with the University of Kentucky housing, and credit transactions based on race, color, national origin, College of Law, will host a law symposium in commem- religion, sex, age (employment), familial status (housing), disability Ooration of the 50th anniversary of the passage of the Kentucky Civil and smoking status (employment). Rights Act of 1966. The Kentucky Commission on Human Rights is the state agency The one‑day symposium will be held at the University of Kentucky charged with the enforcement of the Kentucky Civil Rights Act College of Law, 620 S. Limestone, Lexington, KY 40506-0048 in and the eradication of unlawful discrimination throughout the the Law School Courtroom. The symposium will consist of a series Commonwealth. of panels and speakers prominent in the civil rights arena, including legislators, judges, activists and attorneys. The keynote speaker For general information, visit the Kentucky Commission on Human will be Patricia Timmons-Goodson, co-chair of the United States Rights website at www.kchr.ky.gov. Commission on Civil Rights. The symposium, which will be in session from 9:00 a.m. – 5:00 p.m., is free and open to the public. Registration informa- Address or e-mail changes?! Notify the Kentucky Bar Association tion will be provided in the coming weeks. 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) informed On Jan. 27, 1966, while seated beneath the of your correct mailing address. Pursuant to rule SCR 3.175, all KBA members statue of native son Abraham Lincoln in must maintain a current address at which he or she may be communicated, the state capitol rotunda, Gov. Edward T. as well as a physical address if your mailing address is a Post Office address. If Breathitt signed into law one of the most you move, you must notify the Executive Director of the KBA within 30 days. All significant pieces of legislation in the his- roster changes must be in writing and must include your 5-digit KBA member tory of the Commonwealth – the Kentucky identification number. Civil Rights Act. This momentous law Members are also required by rule SCR 3.175 to maintain with the Director a made Kentucky the first state south of the valid email address and shall upon change of that address notify the Director within Mason-Dixon Line to have an enforceable 30 days of the new address. Members who are classified as a “Senior Retired civil rights act which prohibited discrimin‑ Inactive” or “Disabled Inactive” member are not required to maintain a valid email ation in employment and public accom- address on file. modations, based on race, color, religion There are several ways to update your address and/or email for your convenience. or national origin. Upon its passage, Dr. Martin Luther King sent a telegram to Gov. VISIT our website at https://www.kybar.org to make ONLINE changes or to print Breathitt: “This is a milestone for a south- an Address Change/Update Form -OR- EMAIL the Executive Director via the ern state…a great step forward for any state. Membership Department at [email protected] -OR- FAX the Address Change/ Update Form obtained from our website or other written notification to: Exec- [It] will serve as a great beacon of light for utive Director/Membership Department (502) 564-3225 –OR- MAIL the Address all men of goodwill…and hopefully inspire Change/Update Form obtained from our website or other written notification to: other states to follow suit.” Later, Dr. King commented on the law’s effectiveness: “[It] Kentucky Bar Association, Executive Director is the strongest and most comprehensive 514 W. Main St., Frankfort, KY 40601-1812 civil rights bill passed by a southern state.” *Announcements sent to the Bench & Bar’s Who, What, When & Where column or communication with other departments Through a succession of amendments, the other than the Executive Director do not comply Kentucky Civil Rights Act has expanded its with the rule and do not constitute a formal roster change with the KBA. protected classes and jurisdiction. It now

46 | NOVEMBER/DECEMBER 2015 SUPREME COURT RULES (SCR)

it is not operating as a service in the Navy, by the Department of Homeland Security) and that the service member is on military orders stationed in the Commonwealth of Kentucky; IN RE: ORDER AMENDING (h) is physically residing in Kentucky; RULES OF THE SUPREME COURT (SCR) (i) has submitted all requested character investigation 2015-20 information, in a manner and to the extent established by the ______Board of Bar Examiners, including all required supporting documents; The following rules’ effectiveJanuary 1, 2016 are amended and shall read as follows: (j) has never failed the Kentucky Bar Examination;

RULES OF THE SUPREME COURT (SCR) (k) has completed 12 hours of instruction approved by the Kentucky Continuing Legal Education Board on Kentucky I. SCR 2.018 Application Process substantive and/or procedural law, including 4 hours of ethics, within the 6-month period immediately preceding or following The title of SCR 2.018 shall read: the filing of the applicant’s application;

Application Process (l) certifies that he or she has read and is familiar with the Kentucky Rules of Professional Conduct; and II. SCR 2.113 Military Spouse Provisional Admission (m) has paid such fees as may be set by the Board of New rule SCR 2.113 shall read: Bar Examiners to cover the costs of the character and fitness (1) Requirements. A person who meets all requirements investigation and the processing of the application.

of subparagraphs (a) through (m) of paragraph 2 of this Rule (3) Issuance, Duration and Renewal. may, upon motion, be provisionally admitted to the practice of law in Kentucky. (a) The Board of Bar Examiners having certified that all prerequisites have been complied with, the applicant for pro- (2) Required Evidence. The applicant for provisional visional admission shall, upon payment of applicable dues and admission shall submit evidence satisfactory to the Kentucky completion of the other membership obligations, become an Board of Bar Examiners that he or she: active member of the Kentucky Bar Association. An attorney (a) has been admitted by examination to practice law provisionally admitted pursuant to this Rule shall be subject to before the court of last resort of any state or territory of the the same membership obligations as other active members of United States or of the District of Columbia; the Kentucky Bar Association, and all legal services provided in Kentucky by a lawyer admitted pursuant to this Rule shall (b) holds a Juris Doctor degree from a law school accred- be deemed the practice of law and shall subject the attorney to ited by the American Bar Association at the time of such all rules governing the practice of law in Kentucky, including applicant’s graduation; the Kentucky Rules of Professional Conduct.

(c) has achieved a passing score on the Multistate Pro- (b) A provisional admission may be renewed by July 31 fessional Responsibility Examination as it is established in of each year, upon filing with the Kentucky Bar Association Kentucky at the time of application; (i) a written request for renewal, and (ii) compliance with the membership obligations of the Rules of the Supreme Court of (d) is currently an active member in good standing in the Kentucky applicable to active members of the Kentucky Bar bar of at least one state or territory of the United States, or the Association. Provisional admission under this Rule may be District of Columbia, where the applicant is admitted to the renewed for no more than 4 times. unrestricted practice of law, and is a member in good standing in all jurisdictions where the applicant has been admitted; (c) When the active duty service member is assigned to an unaccompanied or remote follow-on assignment and the (e) is not currently subject to lawyer discipline or the sub- attorney continues to physically reside in Kentucky, the provi- ject of a pending disciplinary matter in any other jurisdiction; sional admission may be renewed until that unaccompanied or remote assignment ends, provided that the attorney complies (f) possesses the good character and fitness to practice with the other requirements for renewal. law in Kentucky; (4) Events of Termination. An attorney’s provisional (g) is the dependent spouse of an active duty service admission to practice law pursuant to this Rule shall immedi- member of the United States Uniformed Services as defined ately terminate and except as provided in subsection (i) of this by the Department of Defense (or, for the Coast Guard when

BENCH & BAR | 47 SUPREME COURT RULES (SCR)

rule, the attorney shall immediately cease all activities under provisionally admitted under this Rule shall be entitled to the this Rule upon the occurrence of any of the following: benefits and be subject to all responsibilities and obligations of active members of the Kentucky Bar Association, and shall (a) The spouse’s discharge, separation or retirement from be subject to the jurisdiction of the courts and agencies of the active duty in the United States Uniformed Services, or the Commonwealth of Kentucky and to the Kentucky Bar Associ- spouse’s no longer being on military orders stationed in the ation with respect to the laws and rules of this Commonwealth Commonwealth of Kentucky, except as provided in section governing the conduct and discipline of attorneys to the same 3(c) of this Rule; extent as an active member of the Kentucky Bar Association.

(b) Failure to meet the annual licensing requirements of III. SCR 2.540(b), (c) and (d) Limited student practice an active member of the Kentucky Bar Association; Sections (b), (c) and (d) of SCR 2.540 shall read: (c) The attorney no longer physically residing within the Commonwealth of Kentucky; (b) Such student makes application to the Character and Fitness Committee of the Kentucky Office of Bar Admissions, (d) The attorney ceasing to be a dependent as defined by on a form approved by the Committee and accompanied by a the Department of Defense (or, for the Coast Guard when it $25.00 processing fee to cover costs. The Committee reviews is not operating as a service in the Navy, by the Department and approves applications for students who appear to be qual- of Homeland Security) on the spouse’s official military orders; ified to perform legal services as interns and certifies this to the Supreme Court. (e) The attorney being admitted to practice law in this Commonwealth under an admissions rule other than that of (c) The Chief Justice of the Supreme Court of Kentucky, Provisional Admission; the dean of the student’s law school, and the director of the law school program in which such student is participating, (f) The attorney receiving a failing score on the Kentucky have filed written approval of such student with the clerk of Bar Examination; the Supreme Court, the clerk of the courts before which the

student is to appear, and the clerk of the circuit court in the (g) The attorney being suspended from the practice of law county wherein the student’s law school is located. in Kentucky or in any other state;

(d) A member in good standing of the bar of this state (h) Request by the attorney; or personally supervises all activities of the student in each case, (i) Upon the occurrence of a terminating event the with the exception that the student may consult with the client attorney may continue the work that commenced prior to the or potential clients, but may not advise, negotiate or appear terminating event until new counsel is retained. alone in administrative proceedings or in the courts of this state in civil or criminal matters without personal appearance (5) Notices Required. and supervision by a member in good standing of the bar of this state, and as otherwise provided in this Rule. (a) An attorney provisionally admitted under this Rule shall provide written notice to the Kentucky Bar Association IV. SCR 3.030(2), (4), and (5)(a) Membership, practice by non of any Event of Termination within 30 days of the occurrence members and classes of membership thereof. Sections (2), (4) and subsection (a) of section (5) to SCR 3.030 (b) Within 30 days of the occurrence of any Event of shall read: Termination, the attorney shall: (2) A person admitted to practice in another state, but (i) provide written notice to all his or her clients that not in this state, shall be permitted to practice a case in this he or she can no longer represent such clients and furnish state only if that attorney subjects himself or herself to the proof to the Executive Director of the Kentucky Bar Asso- jurisdiction and rules of the Supreme Court of Kentucky, pays ciation within 60 days of such notification; and a one time per case fee equal to the annual dues paid by those KBA members who have been admitted to practice law for five (ii) file in each matter pending before any court or years or more to the Kentucky Bar Association and engages a tribunal in this Commonwealth a notice that the attor- member of the association as co-counsel, whose presence shall ney will no longer be involved in the matter, which shall be necessary at all trials and at other times when required by include the substitution of the Local Counsel, or such the court. No motion for permission to practice in any state other attorney licensed to practice law in Kentucky court in this jurisdiction shall be granted without submission selected by the client, as counsel in the place of the pro- to the admitting court of a certification from the Kentucky Bar visionally admitted attorney. Association of receipt of this fee.

(6) Benefits and Responsibilities. An attorney (4) A class of membership is established to be known as

48 | NOVEMBER/DECEMBER 2015 “Senior Retired Inactive Member.” Any member who reaches (2) No lawyer shall solicit professional employment by the age of 70 years and no longer is actively practicing law written, recorded, or electronic communication or by in-person, and who has met the necessary CLE requirements for inactive live telephone, or real-time electronic contact even when not status pursuant to SCR 3.665(2), shall upon notification to the otherwise prohibited by paragraph (1) if: Executive Director be classified as Senior Retired Inactive and shall not be required to pay annual dues. Any member who (a) the target of the solicitation has made known to the has been classified as Senior Retired Inactive may donate legal lawyer a desire not to be solicited by the lawyer; or services through a duly organized legal aid program offering pro bono representation, or a local bar association legal pro (b) the solicitation involves coercion, duress or harassment. bono program or initiative. (3) Every written, recorded or electronic communication (5)(a) A class of membership is established to be known as from a lawyer soliciting professional employment from anyone “Disabled Inactive Member.” An attorney admitted to practice known to be in need of legal services in a particular matter in this state who has been, because of a mental or physical shall include the words “Advertising Material” on the outside condition, judicially declared to be a person under a legal dis- of the envelope, if any, and at the beginning and ending of any ability, or for whom probable cause exists to believe that the recorded or electronic communication, unless the recipient of attorney has a mental or physical condition that substantially the communication is a person specified in paragraphs (1)(a) impairs his or her ability to practice law shall provide to the or (1)(b). Director of the Kentucky Bar Association a detailed written report from a licensed qualified health care provider who has (4) Except as provided in paragraph (1), no communica- examined the attorney setting out the findings of the health tion shall be sent to those individuals and related targets of care provider, including the results of all tests made, diagnoses solicitation who have been involved in a disaster as defined in and conclusions. The Director shall present the matter to the SCR 3.130(7.60) until 30 days have elapsed from the occur- Board who may enter an order transferring the attorney to rence of the disaster. Disability Inactive Status. An attorney classified under this subsection is not required to pay dues or obtain the annual (5) Notwithstanding the prohibitions in paragraph (1), a CLE requirement pursuant to SCR 3.645. This status shall lawyer may participate with a prepaid or group legal service be reflected on the attorney’s membership record. No attorney plan operated by an organization not owned or directed by the classified under this status may engage in the practice of law lawyer which uses in-person or telephone contact to solicit in this state until restored to active status by the Court. Any memberships or subscriptions for the plan from persons who disciplinary proceedings against the attorney shall be stayed are not known to need legal services in a particular manner while the attorney is on disability inactive status. Any report covered by the plan. and supporting records from a health care provider regarding the treatment of the attorney shall be confidential and sealed. VI. SCR 3.130(4.6) Waiver and forfeiture of fees for prohibited solicitation V. SCR 3.130(4.5) Solicitation of clients New rule SCR 3.130(4.6) shall read: New rule SCR 3.130(4.5) shall read: If a lawyer illegally or unethically solicited a client for (1) No lawyer shall directly or through another person by which compensation is paid or payable, all fees arising from in person, live telephone, or real-time electronic means, solicit such transaction shall be deemed waived and forfeited and professional employment when a significant motive for the shall be returned to the client. A civil action for recovery of lawyer’s doing so is the lawyer’s pecuniary gain, unless: such fees may be brought in a court of competent jurisdiction. Violations may be addressed by the Inquiry Commission as a (a) the person contacted is a lawyer; disciplinary matter.

(b) the person contacted has an immediate family rela- VII. SCR 3.130(5.7) Activities of Suspended Lawyer tionship, or prior attorney-client relationship with the lawyer, or person contacted; or New rule SCR 3.130(5.7) shall read:

(c) the lawyer is advocating a public interest issue and (a) During a period of suspension a suspended lawyer may is not significantly motivated by the lawyer’s pecuniary gain. not perform any of the following acts:

This Rule shall not prohibit response to inquiries initiated (1) render legal consultation or legal advice to any person; by persons who may become prospective clients at the time of any other incidental contact not designed or intended by the (2) appear on behalf of another person in any hearing or pro- lawyer to solicit employment. ceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing

BENCH & BAR | 49 SUPREME COURT RULES (SCR)

officer, unless the rules of the tribunal involved permit repre- other than the employing attorney. sentation by non-lawyers and the represented person has been fully informed of the lawyer’s suspension; 3. An employing lawyer shall take appropriate actions to assure that the suspended lawyer does not receive, disburse, or other- (3) appear as a representative of another person at a deposition wise handle any client or attorney client escrow funds. or other discovery matter; 4. Examples of the type of work a suspended lawyer may (4) negotiate or transact any matter for or on behalf of another include: (a) performing legal work of a preparatory nature person with third parties; for an active lawyer’s review, such as legal research, gathering information, and drafting pleadings, briefs, and other similar (5) receive, disburse, or otherwise handle a client’s funds; or documents: (b) communicates with a lawyer’s client or third parties regarding matters such as scheduling, billing, updates (6) engage in activities that constitute the practice of law. on the status of a client’s matters, fact gathering, and confir- mation of receipt or sending of correspondence and messages; (b) A lawyer shall not employ, associate professionally with (c) accompanying an active lawyer to a deposition or other or aid a person a lawyer knows or reasonable should know discovery proceeding for the limited purpose of providing has been suspended to do any of the preceding described acts clerical assistance to the lawyer who will appear as a client’s during a suspended lawyer’s period of suspension. Further, representative. A suspended lawyer shall comply with the a lawyer shall not employ or associate professionally with a requirements of SCR 3.390 and take all reasonable steps to member whose license to practice law has been suspended if protect the interests of the lawyer’s clients. the suspended lawyer was associated with such lawyer or law firm at the time of such member’s suspension. VIII. SCR 3.130(7) Applicability

(c) Except as provided in paragraph (a) and (b), a suspended New Rule 7 as listed below. lawyer may perform research, draft documents, perform clerical functions, and similar activities for the use by a lawyer who A. SCR 3.130(7.01) Definitions assumes professional responsibility for the suspended lawyer’s activities. New rule SCR 3.130(7.01) shall read:

(d) Prior to or at the time of employing a suspended lawyer, For the purposes of Rule 7, the following definitions shall the employing lawyer shall serve upon Bar Counsel written apply: notice of the employment of the suspended lawyer, including a description of such suspended member’s current license status. (1) “Advertise” or “advertisement” means to furnish any The notice shall include a statement that the suspended lawyer information or communication containing a lawyer’s name or shall not be employed to perform any of the activities prohib- other identifying information, and an “advertisement” is any ited by paragraph (a). Upon terminating the employment of information containing a lawyer’s name or other identifying a suspended lawyer, the employing lawyer shall promptly serve information; except the following: written notice of such termination upon Bar Counsel. (a) a professional card of a lawyer; COMMENTARY (b) a public service announcement identifying the spon- 1. A lawyer’s suspension may be as a result of a suspension in sor as a lawyer or law firm, by name, address(es), telephone any jurisdiction including those suspended for failure to pay number(s), but no other information; Bar dues as provided by SCR 3.050 or for failure to comply with continuing legal education requirements as provided by (c) a sign on or near the law office and in the building SCR 3.661. directory identifying the law office.

2. The term “employ” means engaging the services of a sus- (2) “Legal Services” means the practice of law as defined pended lawyer, whether for pay as an employee or independent in SCR 3.020. contractor, or volunteer, or accepting any service from the suspended lawyer. The requirements of the Rule apply to all (3) “Commission” when used in SCR 3.130(7) means attorneys in the employing firm. In all employment situations Attorneys’ Advertising Commission. permitted by this Rule the employing lawyer shall assure that the suspended lawyer does not have any interaction with the B. SCR 3.130(7.02) Attorneys’ Advertising Commission public from which it might reasonably appear that the suspended lawyer is a lawyer in good standing. This includes, New rule SCR 3.130(7.02) shall read: but is not limited to, communication with any clients of the employing attorney, or communications with any attorneys (1) There shall be created an Attorneys’ Advertising

50 | NOVEMBER/DECEMBER 2015 Commission which shall perform such functions in regulating Commission, the Executive Director of the Kentucky Bar lawyer advertising as prescribed in these Rules. Association, the Office of Bar Counsel, all of their officers, members, employees or agents shall be immune from civil (2) The Commission shall consist of up to 9 persons liability for all acts in the course of their official duties in reg- appointed by the President and approved by the Board. Each ulating lawyer advertising. Commission member shall be appointed for a term of 3 years, with terms so established that the terms of the Commission C. SCR 3.130(7.03) Advisory opinions members shall be staggered. Vacancies for unexpired terms shall be filled in the same manner as original appointees, but New rule SCR 3.130(7.03) shall read: the appointees shall hold office only to the end of the unexpired term. No member may serve more than 2 terms in succession, (1) A lawyer may request an advisory opinion by the and may be removed at any time by a majority vote of the Commission. Such request shall be in writing and shall be Board. accompanied by a filing fee of $75.00. Within 30 days after such request is received, the Commission shall issue its advisory (3) Each Commission member shall be a citizen of the opinion as to the compliance of the advertisement with the United States and licensed to practice law in the Courts of Advertising Rules and Advertising Regulations. If the Com- the Commonwealth. mission finds that the advertisement does not comply with the requirements of the Advertising Rules or the Advertising (4) The Board shall appoint a Chair from among the Regulations, the Commission, or its designee, shall issue an Commission members. The term shall be 1 year; however, advisory letter setting forth the factual and legal basis for the the Chair may serve more than 1 term. opinion. The lawyer may submit a corrected advertisement that conforms to the advice in the advisory letter with no (5) The Commission shall be provided with sufficient additional fee required. administrative assistance from the Director as from time to time may be required. (2) For any advertisement submitted pursuant to SCR 3.130(7.03)(1), the lawyer shall mail or deliver to the Com- (6) The Commission shall have general responsibilities for mission, c/o the Director of the Kentucky Bar Association, 3 the implementation of this Rule. In discharging its responsi- copies of the advertisement. If the advertisement is to be pub- bilities the Commission shall have authority to: lished by broadcast media, including radio or television, a fair and accurate representation of the advertisement plus 3 copies (a) Subject to prior approval by the Board, issue and proof a typed transcript of the words spoken shall be submitted. mulgate regulations and such forms as may be necessary. Each Website advertisements that do not qualify for submission member of the Kentucky Bar Association shall be given at without a fee must be submitted in electronic format on a data least 60 days advance notice of any proposed regulations and disc in PDF (Portable Document Format), or other such data an opportunity to comment thereon. Notice may be given by storage media as the Commission may designate by regulation. publication in the journal of the Kentucky Bar Association. Three (3) copies of the data disc should be mailed or delivered to the Commission, c/o the Director of the Kentucky Bar (b) Report to the Board at its last meeting preceding the Association. A filing fee of $75.00 for each advertisement Annual Convention of the Kentucky Bar Association, and filed under this subsection shall accompany each submission. otherwise as required, on the status of advertising with such Additionally, advertisements of more than 100 pages, or longer recommendations or forms as advisable. than 10 minutes of video or audio, will require a supplemen- tal fee of $100.00. The fair and accurate representation of a (c) Delegate to an employee of the Kentucky Bar Asso- broadcast media advertisement shall include 3 copies of a video ciation, designated by the Director of the Kentucky Bar cassette (VHS), digital video disc (DVD), or audio cassette plus Association, the authority to review advertisements on its 3 copies of a typed transcript of the advertisement. behalf. (3) If a lawyer has received an advisory opinion that (d) Issue advisory opinions concerning the compliance of an advertisement complies with the Advertising Rules and an advertisement with the Advertising Rules and Regulations. Advertising Regulations, that lawyer shall not be disciplined for any use of that advertisement, unless an advertisement (7) The Commission shall prepare a budget for the suc- is false, misleading or deceptive, or information provided to ceeding year and shall submit same to the Board of Governors the Commission in connection with the submission is false, for inclusion with the budget of the Kentucky Bar Association. misleading or deceptive after the Commission has issued its advisory opinion. (8) Nothing in these rules shall be construed as creating any cause of action for any party or right of suit against D. SCR 3.130(7.04) Records of the Commission any member of the Commission. The Kentucky Bar Asso- ciation, the Board of Governors, the Attorneys’ Advertising New rule SCR 3.130(7.04) shall read:

BENCH & BAR | 51 SUPREME COURT RULES (SCR)

of the agreement. All advertisements and the records of all actions taken by the Commission on submitted advertisements shall be available (3) Any communication made pursuant to these Rules for inspection and copying at the offices of the Kentucky Bar shall include: the name and office address of at least 1 lawyer Association at reasonable times and upon reasonable notice. or the name of a law firm. The lawyer or lawyers in Kentucky Any expense incurred shall be borne by the requesting party. shall be responsible for the content of the advertisement.

E. SCR 3.130(7.10) Communications concerning a lawyer’s (4) Communication by a lawyer with a person or entity service with whom that lawyer has an immediate family or current attorney-client relationship, or a communication in response New rule SCR 3.130(7.10) shall read: to an inquiry from any person or entity seeking information, shall be exempt from the provisions of the Advertising Rules A lawyer shall not make a false, deceptive or misleading and the Advertising Regulations, with the exception of SCR communication about the lawyer or the lawyer’s service. A 3.130(7.10). communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary (5) If a lawyer or a law firm advertises legal services and a to make the statement considered as a whole not materially lawyer’s name or image is used to present the advertisement, misleading. the lawyer must be the lawyer who will actually perform the service advertised unless the advertisement prominently dis- F. SCR 3.130(7.15) Advertising of fees closes that the service may be performed by other lawyers. If the lawyer whose name or image is used is not licensed to New rule SCR 3.130(7.15) shall read: perform the services in Kentucky, such fact shall be disclosed in the advertisement. If the advertising lawyer or firm is advertis- A lawyer who advertises a fee for routine services and ing for clients for the purpose of referring the client to another accepts the employment must perform such services for the lawyer or firm, that fact must be disclosed prominently in the amount advertised. Upon request, a detailed description of advertisement. what services are included in the “routine services” must be supplied to the Commission and to each prospective client. (6) The lawyer shall retain a copy or recording of all advertisements utilized by the lawyer, as well as a record of when G. SCR 3.130(7.20) Advertising and where it was used, for 2 years after its last dissemination. Electronic retention is permitted if in PDF format, or such New rule SCR 3.130(7.20) shall read: other formats as the Commission may designate by regulation. In the event of the pendency of any disciplinary action before (1) Subject to the requirements of Rules 4.5 and 7.10, a the Inquiry Commission, Board of Governors or Court, the lawyer may advertise legal services through written, recorded lawyer shall continue to retain a copy until the termination of or electronic communications, including public media. that proceeding.

(2) A lawyer shall not give anything of value to a non-law- H. SCR 3.130(7.40) Communication of fields of practice yer for recommending the lawyer’s services except that a lawyer may: New rule SCR 3.130 (7.40) shall read:

(a) Pay the reasonable cost of advertising or communica- (1) A lawyer may communicate the fact that the lawyer tion permitted by this Rule; does or does not practice in particular fields of law.

(b) Pay the usual charges of a legal service plan or a not- (2) A lawyer admitted to engage in patent practice for-profit qualified lawyer referral service. A qualified referral before the United States Patent and Trademark Office may service is a lawyer referral service that has been approved by use the designation “Patent Lawyer” or a substantially similar the Advertising Commission; designation.

(c) Pay for a law practice in accordance with Rule 1.17; and (3) A lawyer engaged in admiralty practice may use the designation “Admiralty”, “Proctor in Admiralty”, or substan- (d) Refer clients to another lawyer or a non-lawyer pro- tially similar designation. fessional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer (4) A lawyer shall not state or imply that a lawyer is certi- clients or customers to the lawyer, if fied as a specialist in a particular field of law, unless:

(i) The reciprocal referral agreement is not exclusive, and (a) the lawyer has been certified as a specialist by an orga- (ii) The client is informed of the existence and nature nization which has been approved by an appropriate state

52 | NOVEMBER/DECEMBER 2015 authority or that has been accredited by the American Bar thereby deter violations of the rules of ethical conduct and Association; the rules of the Kentucky Bar Association; and

(b) the name of the certifying organization is clearly iden- (d) inform the public of the levels of conduct required tified in the communication; and of members of the Kentucky Bar Association and notify the public that it is improper for attorneys to solicit employment (c) the communication occurs only for as long as the either in person or through runners, agents, solicitors, or others lawyer remains so certified and in good standing. in such a manner as to create direct contact between the attorney seeking such employment and the potential claimant. I. SCR 3.130(7.50) Firm names and letterheads (2) It is the policy of the Kentucky Bar Association to New rule SCR 3.130(7.50) shall read: encourage and promote the highest ethical standards among attorneys practicing within its borders. Realizing the emotional (1) A lawyer shall not use a firm name, letterhead, or other distress and grief that are inevitable immediately following a professional designation that violates Rule 7.10. Disaster, the Kentucky Bar Association Disaster Response Plan (hereafter Plan) is established to facilitate the handling (2) A law firm with offices in more than one jurisdiction of these situations in a manner that best protects the interests may use the same name in each jurisdiction, but identification of the persons involved as well as the legal community. of the lawyers in an office of the firm shall indicate the juris- dictional limitations on those not licensed to practice in the (3) For purposes of the Plan, a “Disaster” shall mean the jurisdiction where the office is located. type of emergency or disaster that draws persons to solicit clients. This includes, but is not limited to, air crash, major (3) The name of a lawyer holding a public office shall not fire, explosion, sea disaster, hazardous material contamination, be used in the name of a law firm, or in communications on flood, landslide, major rail or traffic accident, earthquake, or its behalf, during any period in which the lawyer is not actively other circumstances resulting in substantial loss of life, sub- and regularly practicing with the firm. stantial personal injury, or substantial property damage.

(4) Lawyers may state or imply that they practice in a legal (4) It shall be the responsibility of the Immediate Past entity only if that is the fact. President of the Kentucky Bar Association (hereafter Past President) or if the Past President is absent from the state or (5) The name of a lawyer who is suspended by the Supreme physically or mentally unable to act, the Director of the Ken- Court from the practice of law may not be used by the law firm tucky Bar Association, or their designee, to identify a Disaster. in any manner until the lawyer is reinstated. A lawyer who has been permanently disbarred shall not be included in a (5) The Kentucky Mass Disaster Task Force, (hereafter firm name, letterhead, or any other professional designation, “Task Force”) is hereby created from the Kentucky Bar Asso- or advertisement. ciation membership in a sufficient number of “units” at the discretion of the Board to provide Disaster services. A unit of J. SCR 3.130(7.60) Kentucky Bar Association Disaster the Task Force shall consist of at least 1 member of the Board; Response Plan 1 member of the Court of Justice; and 1 or more additional designees to each unit as appointed by the Past President. New rule SCR 3.130(7.60) shall read: (6) The Task Force shall meet promptly upon learning (1) It is the purpose of the Kentucky Disaster Response of an identified Disaster and shall establish a “legal service Plan to: information center.”

(a) address the problems that occur when lawyers and (7) The Task Force shall be provided with printed litera- non-lawyers, who are not subject to the disciplinary jurisdiction ture identifying the purpose of the Task Force, a press release of the Kentucky Bar Association and the Kentucky Supreme identifying the unit of the Task Force, and any additional mate- Court, engage in the provision of legal services, legal advice, rials and equipment that the Past President, the Director, or and outright solicitation of persons and their families affected the unit members themselves believe necessary to accomplish by a Disaster; their purpose.

(b) provide information to the public regarding the avail- (8) The units of the Task Force shall be prepared to inform ability of legal services, as well as information regarding the affected persons that: legal rights available to persons affected by disasters; (a) decisions regarding most legal matters and legal claims (c) monitor the conduct of all attorneys, both members (other than those requiring immediate attention for the pres- and non-members of the Kentucky Bar Association, and ervation of life or health of a person) are generally decisions

BENCH & BAR | 53 SUPREME COURT RULES (SCR)

that are better made after reasonable and thoughtful consider- to solicit victims, relatives of victims, or others as clients for ation and after consultation with the appropriate professionals, matters related to the Disaster. The Task Force shall desig- including attorneys; nate from its members a person to receive any complaints or inquiries concerning suspected improper solicitation. As soon (b) legal services are available to persons affected by as is reasonably practicable, such designee shall furnish such Disasters; information to the Director of the Kentucky Bar Association or the Director’s designee. (c) persons and entities who sustain damage by reason of the wrongful conduct of another may be entitled to recover (10) The Task Force shall be subject to the following damages; restrictions:

(d) “Statutes of Limitations” exist which apply to various (a) no member of the Task Force shall offer specific legal causes of action within the Commonwealth of Kentucky and, advice to anyone regarding the Disaster or refer a person to in certain circumstances, to Federal causes of action; a particular lawyer or law firm. Upon inquiry and to the extent necessary to respond, a member of the Task Force may (e) any person or entity believing he or she has been dam- refer a person to other agencies or groups for information or aged by the wrongful acts of another should seek legal advice assistance. to determine the applicable statute of limitations; (b) no member of the unit assigned to a particular Disaster, (f) only those persons who have been admitted to practice nor any of the partners, members of the firm, associates, or law in the Commonwealth of Kentucky and those persons other lawyers associated with the member shall be permitted who are lawfully associated with them in practice may appear to accept any employment relating to any matter arising out and present claims within the Courts of the Commonwealth of that Disaster. of Kentucky; (c) the Task Force shall not issue any news releases or (g) no person affected by a Disaster is obligated by law to make any public statements on behalf of the Kentucky Bar furnish information regarding the occurrence to any represen- Association without the specific prior approval of the Director. tative of the media, or to investigators, insurance agents and adjusters (other than as required by the persons own insurers), (11) The reasonable expenses incurred by each unit attorneys, or other members of the public, except that a person member of the Task Force in training and providing services who has observed conduct that may be identified as “criminal as contemplated herein, as well as the cost of the equipment activity” is obligated to furnish information pertaining to crim- and supplies necessary to provide the service shall be paid from inal activity to lawfully constituted legal authorities; the General Fund of the Kentucky Bar Association unless the same expenses shall be provided from IOLTA funds of the (h) the affected persons should make a diligent effort to Kentucky Bar Association, funds obtained from private sources, observe all conditions pertaining to the Disaster, and to make grants or donations; or from funds otherwise appropriated by such appropriate records or notations as necessary in the cir- the Kentucky General Assembly, including discretionary funds cumstances to memorialize their recollections of the Disaster; of the Governor of Kentucky or other elected officials. Each unit of the Task Force shall be authorized to obtain when (i) if there are witnesses to the Disaster, it may be import- necessary such secretarial and clerical assistance as appropriate ant to obtain the names, addresses, and telephone numbers of in the circumstances of the particular Disaster. those witnesses, and to retain them for future reference; IX. SCR 3.160(1) and (3)(C) Initiation of disciplinary cases (j) that Kentucky law does not certify specialties and that the members of the unit and their partners, associates, members Section (1) and subsection (C) to section (3) of SCR 3.160 of their firms, and other lawyers associated with them are not shall read: permitted to accept employment for the provision of legal services regarding the Disaster; (1) After review by Bar Counsel pursuant to subparagraph (3) of this Rule, any sworn written statement of complaint (k) the services provided by the unit are for informational against an attorney for unprofessional conduct shall be filed purposes only; and with the Office of Bar Counsel who shall promptly notify the attorney by certified mail, sent to the address maintained by (l) each person or entity interested in legal services should the Director pursuant to SCR 3.175, or other means consistent seek the advice of private counsel selected by that person or with the Supreme Court Rules and Civil Rules, of the com- entity. plaint, and that he/she has 20 days to respond to the complaint. Upon completion of the investigation by the Office of Bar (9) The Task Force shall investigate to determine if run- Counsel the matter shall be assigned to an Inquiry Commission ners, attorneys, or others have been soliciting or attempting panel by rotation.

54 | NOVEMBER/DECEMBER 2015 request that a charge be issued and filed as is provided by (3)(C) After review and such preliminary investigation Rule 3.190; whereupon, the issues shall be processed under as may reasonably be necessary, the Office of Bar Counsel may the applicable rules. attempt informal resolution and subsequently close the Com- plaint. If the acts or course of conduct complained of merit (2) The Inquiry Commission may also issue a warning or a referral under 3(A)(ii)-(vi), and do not warrant a greater degree conditional dismissal letter including, but not limited to, con- of discipline, the Office of Bar Counsel may issue a warning ditions such as referral to KYLAP, or attendance at a remedial letter, which will be maintained in the investigative file of the ethics program or related classes as directed by the Office of Office of Bar Counsel but not be considered as discipline, or it Bar Counsel. The attorney who receives the warning letter may, may recommend remedial ethics, related legal or management within 30 days from the date of the letter, respond to the letter education programs, fee arbitration, or KYLAP, completion and request that it be reconsidered by the Inquiry Commission. of which would result in the complaint being dismissed. The attorney who receives the warning letter may, within 30 days XIII. SCR 3.210(3) and (4) Processing cases of default, admis- from the date of the letter, file a response thereto and may sions of violations or answers raising only issues of law request reconsideration of the matter by the Inquiry Commis- sion. Any response or request so submitted shall be retained Sections (3) and (4) to SCR 3.210 shall read: in the Bar Counsel file. (3) If the parties agree that the answer raises only issues X. SCR 3.175(1)(b) Efficient enforcement; notice of attorney’s of law, or the Respondent admits the violation, the case shall address be submitted to the Board upon Motion by either party. Bar Counsel may file a brief within 20 days after the order granting Subsection (b) to section (1) of SCR 3.175 shall read: the Motion is entered, and the Respondent may file a brief within 20 days thereafter. After briefs are filed, or the time (1)(b) maintain with the Director a valid email address within which briefs may be filed has expired, the record and and shall upon change of that address notify the Director briefs shall be forwarded to the President for assignment to a within 30 days of the new address, except however, that “Senior member of the Board for a report. Retired Inactive” members, “Disabled Inactive” members and those “Honorary” members who no longer actively practice law (4) In the event of a case submitted under subsection (3), or maintain an office shall not be required to maintain an email the Board, by a vote of a majority of the Board present and address; voting, may return the entire record to the Disciplinary Clerk for appointment of a Trial Commissioner pursuant to SCR XI. SCR 3.181(1) Assistance to other lawyer disciplinary 3.230 to conduct an evidentiary hearing, which proceeding jurisdictions will be confidential pursuant to 3.150.

Section (1) of SCR 3.181 shall read: XIV. SCR 3.360(3) and (4) Trial Commissioner to file report with Disciplinary Clerk (1) Upon receipt by the Director of a subpoena certified to be duly issued under the rules or laws of another lawyer Sections (3) and (4) of SCR 3.360 shall read: disciplinary jurisdiction, or by a clients’ security fund of any jurisdiction, the Inquiry Commission may authorize the (3) Within 10 days after the filing of the report with the Director or Disciplinary Clerk to issue the subpoena direct- Disciplinary Clerk, either party may move to amend the finding a person domiciled or found within the Commonwealth ings or for additional findings of fact or conclusions of law by of Kentucky to give testimony and/or produce documents or the Trial Commissioner. Any response shall be filed within other things for use in the other lawyer disciplinary or clients’ 10 days. Such motion shall be ruled upon within 30 days of security fund proceedings as directed in the subpoena of the the filing of the motion. other jurisdiction. (4) Within 30 days after the filing with the Disciplinary XII. SCR 3.185(1) and (2) Informal admonition procedure Clerk of: (a) the report, (b) an order ruling on a motion under SCR 3.360(3), or (c) an amended report, whichever is later, Sections (1) and (2) of SCR 3.185 shall read: either party may file a notice of appeal with the Disciplinary Clerk. If no notice of appeal is timely filed, the entire record (1) After a complaint against an attorney for unprofes- shall be forwarded to the Court for entry of a final order pur- sional conduct is investigated and a response filed, the Inquiry suant to SCR 3.370(9). Commission may direct a private admonition, with or without conditions, to the attorney if the acts or course of conduct XV. SCR 3.370(10) and (11) Procedure before the Board and complained of are shown not to warrant a greater degree of the Court discipline. The attorney so admonished may, within 20 days from the date of the admonition, reject such admonition and Sections (10) and (11) of SCR 3.370 are deleted and new

BENCH & BAR | 55 SUPREME COURT RULES (SCR)

section (10) of SCR 3.370 shall read: Court’s authority under §116 of the Kentucky Consititution to “govern admission to the bar and the discipline of members (10) In each case to be presented to the Trial Commis- of the bar.” sioner, there shall be supplied with the Disciplinary Clerk’s file a sealed envelope containing a statement of the Respondent’s XVII. SCR 3.395(1), (4), (5) and (6) Appointment of special years of membership in the Association, all orders of unpro- commissioner to protect clients’ interests fessional conduct, and all withdrawals from the association and reasons therefor. The envelope will be opened only if the Sections (1), (4), (5) and (6) of SCR 3.395 shall read: Trial Commissioner makes a finding of a violation and may be considered in deciding what discipline to impose. Such (1) When it comes to the attention of the Director that: statement will become part of the record of the case and be (a) an attorney has been temporarily suspended pursuant to transmitted with the rest of the file to the Disciplinary Clerk, SCR 3.165 and has failed to notify his/her clients of the sus- Board and/or Supreme Court. Before submission of a case to pension as required by Court order; or (b) an attorney has been the Trial Commissioner or the Board a copy of said statement suspended or disbarred pursuant to SCR 3.370 and has failed shall be sent to the Respondent, who may review documents to notify his/her clients of his/her suspension or disbarment relative to it at the Bar Center, and may comment to the Trial pursuant to SCR 3.390; or (c) an attorney has resigned pursu- Commissioner or the Board upon the statement and point out ant to SCR 3.480 and has failed to notify his/her clients of his/ errors contained in it. her resignation as required by Court order; or (d) an attorney dies; or (e) an attorney has been declared incompetent; or (f) an attorney abandons his/her law practice or his/her whereabouts XVI. SCR 3.380 Degrees of discipline; indefinite suspension are unknown, and no law partner, personal representative of the in default cases deceased attorney’s estate, or other responsible person capable of conducting the attorney’s business affairs is known to exist, SCR 3.380 shall read: the Director may petition the Court, and the Court for good cause may order the Chief Circuit Judge of the Judicial Circuit (1) Upon findings of a violation of these rules, discipline for the attorney’s last known address to order the appointment may be administered by way of private reprimand, public rep- of 1 or more members of the Association to serve as Special rimand, suspension from practice for a definite time, all of Commissioners of the Court. which may be with or without such conditions as the Court may impose, or permanent disbarment. The Director shall give notice to the attorney by mailing a copy of the petition to the attorney’s last known address, except (2) In cases in which the Respondent has failed to answer where the attorney is deceased. If the attorney is deceased, a charge filed pursuant to Rule 3.200, or having answered, the notice shall be sent to the attorney’s personal represen- has thereafter declined to participate in the disciplinary pro- tative, if known. Within 20 days after the date on which the cess the Court may in its discretion, sua sponte or on motion Director files the petition with the Court, the attorney may by the Office of Bar Counsel, suspend the Respondent from file a response to the petition with the Court. The Clerk of the practice of law for an indefinite period of time. Rein- the Court shall mail a copy of the Court’s order ruling on the statement following an indefinite suspension imposed under petition to the attorney’s last known address, to the Director this Rule, may be initiated by motion of the Respondent and to the Chief Circuit Judge. accounting for the failure to respond and requesting a final determination of the matter, and shall be subject to the rein- (4) The Special Commissioner shall file a written report statement requirements of SCR 3.510. If respondent fails to within 6 months, with the Court containing a summary and seek reinstatement within 5 years, Bar Counsel shall move for explanation of the actions taken by the Special Commissioner permanent disbarment. to fulfill the duties assigned to the Special Commissioner by the Court. This time frame may be extended for good cause Commentary shown. The Special Commissioner shall mail a copy of the report to the Director and to the attorney’s last known address. In the case of Kentucky Bar Association v. Benton, 449 S.W.3d 368, 369 (Ky. 2014), the Court rejected the Board’s (5) If the Special Commissioner takes possession of files recommendation for a 181-day suspension and, instead, exer- of an attorney and the Special Commissioner is unable after a cised its discretion to suspend Respondent indefinitely until diligent effort to deliver the files to the clients or to new attor- he appeared and accounted for his failure to answer the disci- neys representing the clients, the Special Commissioner may plinary charges. In so doing, the Court “acknowledge[d] that request the Court to enter an order providing for the storage our rules do not expressly provide indefinite suspension as a and safekeeping or destruction, as appropriate, of such files. final disciplinary sanction, although we have ordered indefinite suspensions as part of our orders imposing reciprocal disci- (6) The Special Commissioner shall be entitled to rea- pline.” Subsection (2) of SCR 3.380 now formally identifies sonable compensation with the amount to be determined by the indefinite suspension as a mode of discipline within the the Court and to also be reimbursed for necessary expenses

56 | NOVEMBER/DECEMBER 2015 actually incurred. In order to receive such compensation or extended. Written application for an extension under this reimbursement of expenses, the Special Commissioner shall paragraph must be received by the Commission no later than file with the Court a motion containing an itemized list of the 30 days after the member’s deadline to complete the Program time spent on the case, the work performed, and receipts for as set forth in paragraph (1) of this Rule. All applications the expenses incurred. The Special Commissioner’s compen- must be signed by the member. The Commission may approve sation and expenses which are approved by the Court shall extensions for completing the Program under the following be paid by the Association, but any amounts disbursed by the circumstances: Association to the Special Commissioner shall be assessed as costs against the attorney pursuant to SCR 3.450 if the XX. SCR 3.645(1) and (2)(c) Continuing legal education appointment of the Special Commissioner arose out of, (a) requirements: compliance and certification disciplinary proceeding, resignation or an abandonment of the practice or, (b) if the appointment arose out of a mental illness Section (1) and subsection (c) of section (2) to SCR 3.645(1) or disease and a guardian has been appointed for the attorney, shall read: the cost shall be presented to the attorney’s guardian or, (c) if the appointment arose from the death of the attorney, from the (1) Each educational year, as defined by SCR 3.600(7), estate of the decedent by presenting the fiduciary of the estate every person licensed to practice law in this Commonwealth, the costs and, when possible, to file a proof of claim with the not specifically exempted pursuant to the provisions of SCR appropriate district court clerk. 3.665, shall complete and certify a minimum of 12 credit hours in continuing legal education activities approved by the XVIII. SCR 3.510(2) Reinstatement in case of disciplinary Commission, including a minimum of 2 credit hours devoted suspension to “ethics, professional responsibility and professionalism” as defined by SCR 3.600(8). All continuing legal education activ- Section (2) of SCR 3.510 shall read: ities must be completed by June 30 of each educational year.

(2) If the period of suspension has prevailed for 180 days (2)(c) Sponsors submitting certifications to the Director or less, the suspension shall expire by its own terms upon the for CLE shall comply with all requirements set forth in SCR filing with the Clerk, Bar Counsel, and the Registrar of an 3.660(5). affidavit of compliance with the terms of the suspension, which must include a certification from the CLE Commission that XXI. SCR 4.020 Jurisdiction the Applicant has complied with SCR 3.685. The Registrar of the Association will make an appropriate entry in the records SCR 4.020 shall read: of the Association reflecting that the member has been reinstated; provided, however, that such suspension shall not expire (1) Commission shall have authority: by its own terms if, not later than 10 days preceding the time the suspension would expire, Bar Counsel files with the Reg- (a) (i) After notice and hearing, to order the temporary or istrar an opposition to the termination of suspension wherein permanent retirement of any judge whom it finds to be suffer- Bar Counsel details such information as may exist to indicate ing from a mental or physical disability that seriously interferes that the member does not, at that time, possess sufficient pro- with the performance of his/her duties; (ii) and to suspend fessional capabilities and qualifications properly to serve the temporarily from the performance of judicial duties, without public as an active practitioner or is not of good moral character. affecting his/her compensation any judge against whom there A copy of such objection shall be provided to the Character and is pending in any court of the United States an indictment or Fitness Committee and to the member concerned. If such an information charging him/her with a crime punishable as a objection has been filed by Bar Counsel, and is not withdrawn felony, or after notice and an opportunity to be heard, and upon within 30 days, the Character and Fitness Committee shall a finding that it will be in the best interest of justice that the conduct proceedings under SCR 2.300. In cases where a sus- judge be suspended from acting in his/her official capacity as pension has prevailed for 180 days or less and the reinstatement a judge until final adjudication of the complaint, any judge as application is referred to the Character and Fitness Committee, to whom a preliminary investigation has been initiated under a fee of $1500.00 shall be made payable to the Kentucky Office Rule 4.170. of Bar Admissions. An additional fee of $250.00 shall be made payable to the Kentucky Bar Association. (b) To impose the sanctions, separately or collectively of (1) admonition, private reprimand or public reprimand; (2) XVIX. SCR 3.640(8) New Lawyer Program Requirement suspension without pay, or removal or retirement from judicial office, upon any judge of the Court of Justice or lawyer while a Section (8) of SCR 3.640(8) shall read: candidate for judicial office, who after notice and hearing the Commission finds guilty of any one or more of the following: (8) The time for completion and certification set forth in paragraphs (1) and (6) of this Rule may, upon written appli- (i) Misconduct in office. cation to and approval by the Commission or its designee, be (ii) Persistent failure to perform his/her duties.

BENCH & BAR | 57 SUPREME COURT RULES (SCR)

(iii) Incompetence. and in the same manner as the Bar Association member is (iv) Habitual intemperance. appointed an alternate member shall be appointed. The alter- (v) Violation of The Code of Judicial Conduct, Rule nate member may participate in all meetings, hearings, and 4.300. deliberations of the Commission, but shall be entitled to vote (vi) Any willful refusal or persistent failure to con- on a matter coming before the Commission only in the event form to official policies and directives adopted by the the member disqualifies, is absent, is otherwise unable to vote Supreme Court and issued by the Chief Justice in his/ or a vacancy exists. her constitutional capacity as Chief Executive Officer of the Court of Justice. XXIV. SCR 4.090 Disqualification (vii) Conviction of a crime punishable as a felony. SCR 4.090 shall read: (c) After notice and hearing, to remove a judge whom it finds to lack the constitutional and statutory qualifications for (1) Grounds. A member or alternate member shall dis- the judgeship in question. qualify from participation as a member in all matters in which the member has an interest, relationship or bias that would (d) To refer any judge of the Court of Justice or lawyer disqualify a judge in a judicial proceeding. while a candidate for judicial office, after notice and hearing found by the Commission to be guilty of misconduct, to the (2) Procedure. Kentucky Bar Association for possible suspension or disbar- (a) A party seeking disqualification of a member or alter- ment from the practice of law. nate member shall file a verified motion with the Executive (2) Any erroneous decision made in good faith shall not Secretary who shall forthwith transmit the motion to the chal- be subject to the jurisdiction of the Commission. lenged member.

XXII. SCR 4.025 Authority of Commission in certain (b) The challenged member shall promptly file with the situations Executive Secretary a written response stating whether the member recuses. The response may include explanation of the SCR 4.025 Shall read: member’s position.

(1) The Commission shall have the authority set out in (c) If a member refuses to recuse, the recusal issue shall be SCR 4.020 without regard to separation of a judge from office decided by majority vote of the other members of the Com- or defeat of a candidate in an election, except as specifically mission by written findings not later than the meeting next limited in SCR 4.000 to SCR 4.300. following the filing of the member’s response to the motion to recuse. (2) For any violation related to campaign conduct in a primary or general election, the authority of the Commis- (d) Upon disqualification of a member, the disqualified sion to take action shall be barred unless notice of preliminary member’s alternate shall serve. If there is no alternate for the investigation pursuant to SCR 4.170 has been issued by the disqualified member, the matter shall be determined by the Commission within 180 days of the date of the general election remaining members of the Commission. following the campaign as to which the conduct relates. (e) A member disqualified in a matter shall not participate (3) For any violation other than a campaign violation, the in its consideration and shall be excused from that portion of authority of the Commission to take action against a judge any meeting at which the matter is discussed. who has left office shall be barred unless notice of preliminary investigation pursuant to SCR 4.170 has been issued within XXV SCR 4.095 Term of office 180 days after the date the judge leaves office. SCR 4.095 shall read: (4) Nothing in SCR 4.000 to 4.300 shall bar proceedings The 4-year terms of office of all members and alternate against sitting judges who have left judicial office after a prior members of the Commission shall be deemed as having com- term of office concerning conduct not previously adjudicated menced on the first Monday in January of 1976 except for the by the Commission, including conduct which occurred during district court member and alternate member, whose terms shall a prior term or terms of office. commence on the first Monday in January of 1978. XXIII. SCR 4.075 Alternate members XXVI. SCR 4.110 Counsel SCR 4.075 shall read: SCR 4.110 shall read: At the time and in the same manner as the Court of The Commission may designate or employ any member Appeals, circuit court and district court members are elected, of the Kentucky Bar to gather and present evidence before an alternate member for each shall be elected. At the time

58 | NOVEMBER/DECEMBER 2015 the Commission and before the Supreme Court upon judicial XXIX. SCR 4.150 Service of papers review. SCR 4.150 shall read: XXVII. SCR 4.120 Quorum Service of notices and other papers may be by personal SCR 4.120 shall read: service or by mail. Papers served on the judge shall be marked “Personal and Confidential.” Service may also be by email with A quorum shall be 4 members. The Commission may act written consent of the judge. by majority vote of members present; however, the affirmative vote of at least 4 members shall be required for the suspension, XXX. SCR 4.170 Complaint; preliminary investigation removal or retirement of a judge for good cause. Absence of a member or a vacancy upon the Commission shall not invalidate SCR 4.170 shall read: its action. If because of disqualification or other inability of members and alternates to serve, a quorum cannot be achieved, (1) Upon its own motion or upon receiving a written the Chairperson shall certify that fact to the respective appoint- complaint indicating that there is a basis for investigation of ing authorities for selection of sufficient special members to a matter within the jurisdiction of the Commission under SCR bring the Commission to full membership in the matter. In 4.020, the Commission shall make a preliminary investigation such matter, the time periods of SCR 4.170(5) and 4.260(3) to determine whether formal proceedings should be initiated. shall be tolled, and the full period shall not begin to run until (2) Notice of the investigation shall be given to the judge, the special members are selected. and the judge shall be given an opportunity to appear infor- XXVIII. SCR 4.130 Confidentiality mally before the Commission. The name of the complainant shall not be included in the notice. SCR 4.130 shall read: (3) If the Commission concludes after its preliminary All papers and information obtained by or on behalf of investigation that formal proceedings should not be initiated, the Commission shall be confidential except as provided in it shall so inform the judge. this rule or by order of the Supreme Court. (4) After the preliminary investigation is completed and (1) The Commission may direct that an order suspending before formal proceedings are initiated under Rule 4.180, the a judge pursuant to SCR 4.020(1)(a) shall not be confidential. Commission shall afford the judge under investigation an Following the procedure set forth in SCR 4.170, upon filing opportunity to examine all factual information, including the of an answer to a notice of formal proceedings, or expiration name of the complainant if relevant, and shall afford the judge of time for filing an answer, the notice and all subsequent an opportunity to furnish to the Commission any information pleadings filed with the Commission shall not be confidential, the judge may desire bearing on the investigation. except that the Commission’s internal papers such as investigative reports and staff memoranda, and similar matters, shall (5) The Commission shall decide whether to initiate remain confidential and shall not be a part of the formal file. formal proceedings under SCR 4.180 within 180 days of commencement of preliminary investigation, unless within (2) The Commission may reveal information to appro- such period or extension thereof the Commission for good priate law enforcement authorities or to the judge under cause extends such period for a period or periods not exceeding investigation that it believes is reasonably necessary in order an additional 180 days. The judge shall be informed of such to protect the public or the administration of justice. extensions.

(3) Hearings in formal proceedings shall be public, except (6) If because of court injunction or other requirement of that the Commission shall deliberate in executive session in law, the Commission is prevented from proceeding in a matter, reaching any decision involved in such hearings. the time periods of this rule and SCR 4.260(3) shall be tolled, and the full period shall not begin to run until the reason for (4) The Commission may on its own initiative, and shall the Commission’s inability to act is removed. upon request of the Director or Board of Governors of the Kentucky Bar Association, make available to the Kentucky XXXI. SCR 4.210 Procedural rights of judge Bar Association any of the Commission’s records pertinent to a disciplinary matter or inquiry under investigation by the SCR 4.210 shall read: Commission or by the Association. (1) In proceedings involving removal or retirement, (5) Breach of confidentiality may be deemed contempt of a judge shall have the right and reasonable opportunity to court and grounds for removal of a member of the Commission defend against the charges by the introduction of evidence, to and for discharge of any of its agents or employees. be represented by counsel, and to examine and cross-examine witnesses. The judge shall also have the right to the issuance

BENCH & BAR | 59 SUPREME COURT RULES (SCR)

of subpoenas for attendance of witnesses to testify or produce XXXV. SCR 4.260 Commission findings; order books, papers, and other evidentiary matter. SCR 4.260 shall read: (2) Except as herein otherwise provided, whenever these rules provide for giving notice or sending any matter to the (1) The Commission shall make written findings of fact judge, such notice or matter shall be sent to the judge at their and conclusions of law which shall be filed with the record residence unless the judge requests otherwise in writing, and in the case. a copy thereof shall be mailed to his/her counsel of record. (2) A certified copy of the Commission’s findings of fact, (3) If the judge is adjudged insane or incompetent, or if it conclusions of law and final order shall be served on the judge appears to the Commission at any time during the proceedings or counsel immediately after entry. that the judge is not competent to act for himself/herself, it shall appoint a guardian ad litem unless the judge has a com- (3) The Commission shall make final disposition in formal mittee who will represent him/her. In the appointment of such proceedings as provided in this section within 180 days of guardian ad litem, preference shall be given, whenever possible, notice of such proceedings, except that within such period or to members of the judge’s immediate family. The committee extension thereof the Commission may for good cause extend or guardian ad litem may claim and exercise any right and such period for a period or periods not exceeding an additional privilege and make any defense for the judge with the same 180 days. The judge shall be informed of such extensions. force and effect as if claimed, exercised, or made by the judge, XXXVI. SCR 4.270 Commission orders if competent, and whenever these rules provide for serving or giving notice or sending any matter to the judge, such notice SCR 4.270 shall read: or matter shall be served, given, or sent to the committee or guardian ad litem. Commission orders shall become effective 10 days after service on the judge unless the judge appeals therefrom within XXXII. SCR 4.220 Hearing that time. Upon its effective date, a certified copy of an order of suspension, removal or retirement shall be given to appropriate SCR 4.220 shall read: persons such as the Chief Justice, the Executive Department (1) At the time and place set for hearing, the Commission for Finance and Administration and the Judicial Retirement shall proceed with the hearing whether or not the judge has Board. Notice of a private reprimand shall not be given to any filed an answer or appears at the hearing. Counsel shall present person other than the judge, except that a private reprimand the case in support of the charges. may be publicized on the Commission website and in other publications without any information that would identify the (2) The failure of the judge to answer or to appear at the recipient. hearing shall not, standing alone, be taken as evidence of the truth of the facts alleged to constitute grounds for suspension, A judge who is retired for a permanent disability shall removal or retirement. The failure of the judge to testify in thereupon become eligible for retirement benefits under KRS his/her own behalf or to submit to a medical examination 21.345 to KRS 21.455. requested by the Commission may be considered, unless it A judge who is placed on temporary retirement shall con- appears that such failure was occasioned by circumstances tinue to draw full compensation the same as if he/she were on beyond his/her control. active duty, and for retirement purposes shall be considered as (3) In a hearing before the Commission, not less than continuing in active service. 5 members shall be present when the evidence is produced. XXXVII. SCR 4.280 Certification of Commission order; XXXIIII. SCR 4.230 Recording of hearings in formal proceedings Permanent File

SCR 4.230 shall read: SCR 4.280 shall read:

All hearings in formal proceedings shall be video recorded. Upon making a determination ordering a suspension, Upon request, the judge shall be provided a copy of the record- removal or retirement of a judge, the Commission shall ing at the expense of the Commission. promptly file a copy of the order certified by the Chairman or Secretary of the Commission, together with the findings and XXXIV. SCR 4.240 Evidence conclusions and the record of the proceedings, in a permanent file. SCR 4.240 shall read:

At a hearing before the Commission only evidence admissible under the Kentucky Rules of Evidence shall be received. The Chairperson shall rule on all evidentiary matters.

60 | NOVEMBER/DECEMBER 2015 XXXVIII. SCR 4.290 Judicial review advisory and lack the authority to exercise the constitutional power of that branch. For example, service upon a board or SCR 4.290 shall read: committee that governs a state university (an executive branch entity) would be prohibited, but service upon a university board (1) To the extent applicable and not inconsistent with that merely makes advisory suggestions to university officials SCR 4, the Rules of Civil Procedure (CR) applicable to other would not be prohibited by this rule. The appropriateness types of proceedings shall apply to the judicial review of Com- of accepting extra-judicial assignments must be assessed in mission orders by the Supreme Court. light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement (2) A notice of appeal of the Commission’s final order in extra-judicial matters that may prove to be controversial. shall be filed with the Clerk of the Supreme Court within 10 Judges should not accept governmental appointments that are days after service of notice of the order upon the judge. A copy likely to interfere with the effectiveness and independence of of the notice of appeal shall be served on the Commission. the judiciary. (3) The Commission shall thereupon promptly transmit Section 4C(2) does not govern a judge’s service in a nongov- to the Court the entire original record upon which the order is ernmental position. See Section 4C(3) permitting service by based, unless by stipulation of the Commission and the judge a judge with organizations devoted to the improvement of the an abbreviated or substitute record is agreed upon. law, the legal system or the administration of justice and with (4) The judge shall file his/her brief within 20 days after educational, religious, charitable, fraternal or civic organizations the record is filed and the Commission shall file its brief within not conducted for profit. 20 days thereafter. The time for filing of briefs may be extended (3) A judge may serve as an officer, director, trustee or non-legal by the Court upon motion of either party. advisor of an organization devoted to the improvement of the (5) The Court shall have power to affirm, modify or set law, the legal system or the administration of justice or of an aside in whole or in part the order of the Commission, or to educational, religious, charitable, fraternal or civic organization remand the action to the Commission for further proceedings. not conducted for profit, subject to the following limitations and the other requirements of this Code. XXXIX. SCR 4.300 Canon 4(C)(2) Kentucky Code of Judicial Conduct Commentary

Canon 4(C)(2) of SCR 4.300 shall read: Section 4C(3) does not apply to a judge’s service in a governmental position; see Section 4C(2). Canon 4(C)(2) A judge shall not accept appointment to a governmental board, committee, or commission or other gov- See Commentary to Section 4B regarding use of the phrase ernmental position within the executive or legislative branches “subject to the following limitations and the other requirements that exercises power to make governmental decisions within of this Code.” As an example of the meaning of the phrase, that branch or determines governmental policy, except as a judge permitted by Section 4C(3) to serve on the board of otherwise authorized or required by law. A judge may repre- a fraternal institution may be prohibited from such service sent a country, state or locality on ceremonial occasions or in by Sections 2C or 4A if the institution practices invidious connection with historical, educational or cultural activities, discrimination or if service on the board otherwise casts rea- and may otherwise participate in civic or charitable activities sonable doubt on the judge’s capacity to act impartially as a devoted to the improvement of the law, the legal system or the judge. administration of justice. Service by a judge on behalf of a civic or charitable organi- Commentary zation may be governed by other provisions of Canon 4 in addition to Section 4C. For example, a judge is prohibited Section 4C(2) is based upon Kentucky Constitutional Sections by Section 4G from serving as a legal advisor to a civic or 27 (providing for the separation of governmental powers into charitable organization. three branches) and 28 (prohibiting officers of one branch from exercising any power properly belonging to another branch.) All sitting. All concur, except Cunningham and Noble, JJ., The Rule prohibits a judge from accepting any governmental dissent on the proposed rule amendments to SCR 3.030(2). position within either the legislative or executive branches ENTERED: November ______, 2015. that makes governmental decisions or policy. The Rule does

not prohibit a judge from serving upon such a board or commission where judicial participation is otherwise required by law, subject to compliance with the Constitutional mandate. The Rule does not prohibit a judge from accepting positions within the legislative or executive branches that are merely

BENCH & BAR | 61 KYLAP KYLAP HOSTS LAWYERS IN RECOVERY MEETINGS IN NORTHERN KENTUCKY AND LEXINGTON

he Kentucky Lawyers Assistance Program offers weekly open recovery meetings for lawyers, law students and judges in Northern Kentucky and Lexington. The Northern Kentucky Lawyers in Recovery meeting is held 7:30 a.m., on Tuesdays at Lakeside ChristianT Church, 195 Buttermilk Pike, Lakeside Park. The church is located off I-75 exit 186 for Kentucky 371/ Buttermilk Pike. The facility will open at 7:15 a.m. Please bring your own coffee.The Lexington Kentucky Lawyers in Recovery meeting is held at 7:30 a.m. on Wednesdays at the Alano Club downtown, 370 East Second Street, Lexington, KY 40508.

All meetings are open to law students, lawyers and judges who are already involved or who are interested in a 12-step program of recovery, including but not limited to Alcoholics Anonymous, Narcotics Anonymous, Overeaters Anonymous and Al-Anon. Come meet other attorneys and network. All meetings and contacts are confidential. SCR 3.990. For additional information, please visit www.kylap.org, call (502) 564-3795, ext. 266, or email [email protected].

KENTUCKY LAWYER ASSISTANCE PROGRAM

ISTANCE P FOUNDATION, INC., (FORGIVABLE) SS RO A G R R E A LOAN PROGRAM Y M

W F

A O

U Y

he KYLAP Foundation is a 501(c)(3) non-profit Kentucky Corporation created and approved N

pursuant to Supreme Court Rule 3.910(8) to promote the mission of the Kentucky Lawyer A

U T

T I

AssistanceT Program (KYLAP). KYLAP's mission is to assist Kentucky's lawyers, law students and N N E

judges who suffer from impairments including drug, alcohol, or other addictions, depression, and K other mental health disorders.

The Foundation helps Kentucky's lawyers, law students and judges seek medical and professional treatment for impairment issues when no other financial resources for treatment exist. The Foundation is premised on the same principle as the Kentucky Lawyer Assistance Program — Lawyers Helping Lawyers.

Your tax-deductible contribution provides direct help for suffering lawyers through the extension of (forgivable) loans for treatment (paid directly to the medical providers).

All money given by lawyers goes directly to the treatment of lawyers.

For more information on the Kentucky Lawyer Assistance Program Foundation, Inc., please contact KYLAP Director Yvette Hourigan at (502) 564-3795 or at [email protected].

62 | NOVEMBER/DECEMBER 2015 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 KENTUCKY BAR FOUNDATION

KENTUCKY BAR FOUNDATION WELCOMES NEW FELLOWS

Scott and Woodford Counties. A Murray State University and the Univer- graduate of Duke University and the sity of Kentucky College of Law, she was University of Kentucky College of admitted to the Kentucky Bar in 1989. Law, she was admitted to the Ken- tucky Bar in 1982. Judge Dickson Richard M. Joiner of Madisonville for- currently serves as an ex-officio merly served as an Administrative Law Our deepest appreciation goes to these member of the Kentucky Bar Foundation Judge in the Department of Workers’ distinguished members of the Kentucky Board of Directors. Claims. A graduate of the University of Bar for their financial support of the Michigan and the University of Kentucky Foundation’s charitable efforts. Daniel T. Goyette is the Chief Public College of Law, he was admitted to the Defender for Jefferson County and has Kentucky Bar in 1975. Mr. Joiner is a Life Amelia Martin Adams is the Executive served as Executive Director of the Lou- Fellow. Director of the Kentucky Bar Foundation isville-Jefferson County Public Defender and Kentucky IOLTA Fund. She previously Corporation since 1982. Mr. Goyette is a Elizabeth Key Kaegi practices law in Nash- practiced law in Lexington with DelCotto Past President of both the Louisville Bar ville, Tennessee. A graduate of Southern Law Group. A graduate of Transylvania Association and the Louisville Bar Founda- Methodist University and the University of University and the University of Kentucky tion. A graduate of Marquette University Kentucky College of Law, she was admitted College of Law, she was admitted to the and the University of Oklahoma College to the Kentucky Bar in 2004. Ms. Kaegi Kentucky Bar in 2009. of Law, he was admitted to the Kentucky is a Life Fellow. Hailey Scoville Bonham practices law in Bar in 1974. Mr. Goyette is a Life Fellow. London. A graduate of Eastern Kentucky Justice James E. Keller passed away in June University and Northern Kentucky Uni- Penny Unkraut Hendy practices law in 2014. After a decade of private practice in versity Chase College of Law, she was Fort Wright with the law firm of Schachter Lexington, he was appointed in 1976 as admitted to the Kentucky Bar in 2004. Hendy & Johnson. A graduate of North- Judge of the Fayette Circuit Court, First Ms. Bonham currently serves as a member ern Kentucky University and Northern Division, where he served for 23 years. In of the Kentucky Bar Foundation Board of Kentucky University Chase College of Law, 1999, Judge Keller was appointed to the Directors. she was admitted to the Kentucky Bar in Supreme Court of Kentucky. Upon his 1990. Ms. Hendy is a Life Fellow. retirement from the bench in 2005, Justice John R. Crockett III practices law in Lou- Keller joined the firm of Gess Mattingly isville with the law firm of Frost Brown Mark J. Hinkel passed away in May 2015. & Atchison. A graduate of Eastern Ken- Todd. A graduate of the University of He was a partner in the law firm of Lan‑ tucky University and the University of North Carolina and the University of Ken- drum & Shouse in Lexington until his Kentucky College of Law, he was admit- tucky College of Law, he was admitted to untimely passing. A graduate of the Uni- ted to the Kentucky Bar in 1966. Justice the Kentucky Bar in 1990. Mr. Crockett versity of Kentucky and the University of Keller has been enrolled posthumously as a currently serves as a member of the Ken- Kentucky College of Law, he was admitted Kentucky Bar Foundation Life Fellow to tucky Bar Foundation Board of Directors. to the Kentucky Bar in 1983. Mr. Hinkel honor his many years of service to the legal has been enrolled posthumously as a Kentucky community. Richard F. Dawahare practices law in Lex‑ Bar Foundation Life Fellow by members ington. A graduate of the University of of his law firm and others who wished to Judge Debra Hembree Lambert was Kentucky and the University of Kentucky honor his memory. elected to serve on the Kentucky Court of rd College of Law, he was admitted to the Appeals in November 2014 from the 3 Kentucky Bar in 1979. Mr. Dawahare is Matthew E. Hite practices law in Bards‑ Appellate District, Division 1, becoming a Life Fellow. town with the law firm of Hite & Pott‑ the first woman to serve on the Court of inger. A graduate of the University of Appeals from the 3rd District. She for- Judson F. Devlin practices law in Louis- Louisville and the University of Louisville merly practiced law in Mount Vernon, also ville with the law firm of Fulton & Devlin. Brandeis School of Law, he was admitted serving as an Assistant Commonwealth’s A graduate of Eastern Kentucky University to the Kentucky Bar in 1994. Mr. Hite is Attorney and City Attorney for the City of and the University of Kentucky College of a Life Fellow. Mount Vernon. In 1999, then-Gov. Paul Law, he was admitted to the Kentucky Bar E. Patton appointed her to serve as Circuit in 1988. Pamela Yvette Hourigan is Director of the Judge, Family Court Division in the 28th Kentucky Lawyer Assistance Program Judicial Circuit. In 2007, Judge Lambert Judge Vanessa Mullins Dickson of Paris (KYLAP). She previously was in private resumed her private practice in Mount serves as Chief District Judge for Bourbon, practice in Lexington. A graduate of Vernon until her election to the Court of

64 | NOVEMBER/DECEMBER 2015 Appeals in 2014. A graduate of Eastern & Overmann. A graduate of the Univer- James A. Sigler practices law in Paducah Kentucky University and the University of sity of Kentucky and Northern Kentucky with the law firm of Whitlow Roberts Kentucky College of Law, she was admitted University Chase College of Law, she was Houston & Straub. A graduate of the Uni‑ to the Kentucky Bar in 1989. admitted to the Kentucky Bar in 2008 and versity of Kentucky and the University of is also a member of the Ohio Bar. Ms. Louisville Brandeis School of Law, he was James H. Lucas passed away in June 2004. Overmann currently serves as Secretary/ admitted to the Kentucky Bar in 1988. Mr. Lucas was a founding partner of the Treasurer of the Young Lawyers Division Mr. Sigler currently serves as a member law firm of English Lucas Priest & Owsley of the KBA and as an ex-officio member of the Kentucky Bar Foundation Board of in Bowling Green. Mr. Lucas also served of the Kentucky Bar Foundation Board of Directors. on the Board of Directors of the Buckhorn Directors. Children’s Foundation and was the Past Elizabeth Lee Thompson practices law in President of Citizens First Bank in Bowl- John A. Pottinger practices law in Bards‑ Lexington with the law firm of Stites & ing Green. A graduate of the University of town with the law firm of Hite & Pott‑ Harbison. A graduate of the University of Kentucky and the University of Kentucky inger. A graduate of the University of Kentucky and the University of Kentucky College of Law, he was admitted to the Kentucky and the University of Louisville College of Law, she was admitted to the Kentucky Bar in 1959. Mr. Lucas has been Brandeis School of Law, he was admitted Kentucky Bar in 1982. enrolled posthumously as a Kentucky Bar to the Kentucky Bar in 2000. Mr. Pottinger Foundation Life Fellow to honor his many is a Life Fellow. Judge Megan Lake Thornton of Lexington years of service to the legal community. serves as Chief District Judge for Fayette Joyce M. Russell practices law in Bowling County. A graduate of Western Kentucky Susan B. Martin practices law in Rich- Green. A graduate of Western Kentucky University and the University of Kentucky mond. A graduate of Emory University University and the University of Kentucky College of Law, she was admitted to the and the University of Louisville Brandeis College of Law, she was admitted to the Kentucky Bar in 1981. Judge Thornton is School of Law, she was admitted to the Kentucky Bar in 1972. Ms. Russell is a a Life Fellow. Kentucky Bar in 1981. Life Fellow. Sadhna True practices law in Lexington Matt M. McGill practices law in Bowl- Ekundayo Seton practices law in Louis- with the law firm of Dinsmore & Shohl. ing Green with the law firm of Lowder & ville with the law firm of Wyatt Tarrant A graduate of Northwestern University and McGill. A graduate of Miami University & Combs. A graduate of Frostburg State the University of Michigan Law School, and the University of Kentucky College of University and the University of Houston she was admitted to the Kentucky Bar in Law, he was admitted to the Kentucky Bar Law Center, he was admitted to the Ken- 1991 and is also a member of the District in 2005. Mr. McGill is a Life Fellow. tucky Bar in 2009. Mr. Seton currently of Columbia Bar. She currently serves as serves as a member of the Kentucky Bar a member of the Kentucky Bar Founda- R. Stephen McGinnis practices law in Foundation Board of Directors. tion Board of Directors. Ms. True is a Life Greenup with the law firm of McBrayer Fellow. McGinnis Leslie & Kirkland. A graduate of Centre College and the University of Kentucky College of Law, he was admitted Nonprofit Organization Law Can Be Complex to the Kentucky Bar in 1994 and is also a member of the Virginia and West Virginia My Practice Is Limited to Advising Nonprofits and Bars. Mr. McGinnis currently serves as a member of the Kentucky Bar Foundation The Professionals Working With Them Board of Directors. Assistance Provided With George E. Meng of Lexington practices Organization Formation law at Meng Law in Prince Frederick, Organizational Policies & Procedures Maryland and also has an office in Lexing- Assessment of Operations ton. A graduate of The Catholic University Continuous Improvement Systems (Quality) of America and the Columbus School of Board Governance Issues Law at The Catholic University of Amer‑ Complex Tax Matters ica, he was admitted to the Kentucky Bar in 2013 and is also a member of the Mary- For-Profit Subsidiaries and Joint Ventures land Bar. Mr. Meng is a Life Fellow of Merger, Consolidation or Dissolution of Nonprofits the Kentucky Bar Foundation and also the Maryland Bar Foundation. Conley Salyer, Attorney, J.D., LL.M.; Examiner, Malcolm Baldrige National Quality Award (MBNQA). [email protected], (859) 281-1171, Jennifer Scholl Overmann practices law 710 E. Main Street, Lexington, KY 40502. www.nonprofitattorney.net in Edgewood with the law firm of Dietz This is an advertisement.

BENCH & BAR | 65 CONTINUING LEGAL EDUCATION

Mentoring: Great Place to Start N W E ResourceBy: Mary Beth Cutter Center for New Lawyers S ost would agree that there is a need for efforts to be years and are willing to serve in this capacity. made to ease the transition from the study of the law The volunteer attorneys complete an online form which includes to its practice, thereby promoting professionalism and areas of interest and practice as well as practice location. All volun- Mcompetence in new attorneys and increasing client satisfaction and teer forms are reviewed to ensure that the attorney is in good confidence in newly licensed lawyers. In the past, as was the case standing with the KBA and does not have pending disciplinary in many professions and trades, an apprentice-type relationship issues. The list of Attorney Advisors is available as a sortable list would be utilized to train new attorneys and provide them with the by name and Supreme Court District. There are two additional lessons and knowledge hard learned by those who had gone before alphabetical lists by area(s) of practice and by practice counties. them in their chosen profession. This is still often the method of Other links included in this area are the Attorney Advertising training used by law firms. However, opportunities for mentorship Commission and Ethics Hotline Committee. do not arise as naturally as in past years. The recent recession and corresponding lack of jobs have forced many new lawyers to estab- The Find a Mentor service allows new lawyers to choose a Mentor lish solo practices. In addition, the growth in the legal profession from a pool of properly vetted Kentucky attorneys with at least five and the specialized nature of law practice today can make it more years of experience, who have volunteered to go beyond answering challenging to introduce new attorneys to the legal community and a few email and telephone inquiries. Volunteer Mentors are willing guide them through the transition to law practice. to meet with and advise Mentees on an on-going basis if requested to do so. The scope and duration of this Mentor/Mentee association In an attempt to address this situation and facilitate mentoring is entirely flexible and determined by the needs and requests of the in Kentucky, a Pilot Mentoring Program was created by Supreme Mentees. The list of Mentors is available as a sortable list by name Court Order dated Aug. 14, 2007, and funded by a grant from the and Supreme Court District, as well as by area(s) of practice and Bar Foundation. This one year, one-to-one program was successful, by practice counties. but limited in scale. The KBA has continued to research the best mentoring options. During the Mentoring in the Legal Profession The GPS site provides shortcuts to “Online Resources.” These Roundtable in Atlanta, which was attended by KBA representa- include the KBA website, “Helpful Links” to Ethics Opinions, tives, these issues were discussed at length. Current thinking is Unauthorized Practice Opinions, the Federal Code, Supreme that the one-to-one mentoring model is not the most effective Court Rules, etc., Kentucky State Government websites, Federal advisory relationship, and that there should be multiple mentors Government websites, research websites, local bar association sites, for each mentee. Many programs have found that their results are and much more. more positive when mentees choose their own mentors as opposed to having them assigned. Even more interesting, there are clear The goal of GPS is to provide Kentucky’s new lawyers with the indications that virtual mentoring might be more effective than resources they need to be successful, professional, and productive actual face-to-face meetings in today’s world. attorneys. If you are interested in participating in this program as an Attorney Advisor or Mentor, please go to the GPS website and Given the above, the KBA developed a modern information and register. For new attorneys, I encourage you to take advantage of advisory hub for our new lawyers. The website is called Great Place this valuable resource. to Start Resource Center for New Attorneys in Kentucky, or “KBA GPS.” The URL for the website ishttp://www.kbagps.org . 2015-2016 CLE Commission Members Jason F. Darnall Carl N. Frazier The main page for the GPS site provides a description of the First District Representative Fifth District Representative [email protected] [email protected] resources and services available through the site. The site is also searchable. Many of the resources offered through the site are links Matthew P. Cook David B. Sloan Second District Representative Sixth District Representative and information that can be found elsewhere. The benefit of the [email protected] [email protected] GPS site is that these useful resources and links may all be accessed through one central location, thus making the site a “Great Place to Julie Roberts Gillum W. Mitchell Hall, Jr. Third District Representative Seventh District Representative Start” when you are looking for information and assistance. [email protected] [email protected] The services offered through the site are the “Lawyer to Lawyer” Janet Jakubowicz, Chair Justice Michelle M. Keller service and the “Find a Mentor” service. New attorneys may use Fourth District Representative Supreme Court Liaison [email protected] these services by registering and creating accounts. The Lawyer to Lawyer service allows new lawyers to call or email properly vetted, Interested in assisting with a CLE? Have ideas for a program? volunteer “Attorney Advisors” to seek advice or guidance in the Contact Mary Beth Cutter, KBA Director for CLE at practice of law in Kentucky. Attorney Advisors are volunteers [email protected], or any member of the Continuing Legal who have been practicing attorneys in Kentucky for at least five Education Commission.

66 | NOVEMBER/DECEMBER 2015 Looking for Upcoming KBA Accredited CLE Events? Look no further... Check out https://www.kybar.org/580 This easy to use search engine contains up to date information on CLE events that have been accredited by the Kentucky Bar Association Continuing Legal Education Commission.

Users can search by program date, name or sponsor for information about future and past events. Program listings include sponsor contact

.snoitacilppa noitatidercca fo gnissecorp rof skeew owt ot pu ekat yam tI .deviecer era yeht hcihw ni redro eht ni dedda dna devorppa era smargorP era devorppa dna dedda ni eht redro ni hcihw yeht era .deviecer tI yam ekat pu ot owt skeew rof gnissecorp fo noitatidercca .snoitacilppa If an upcoming or past event is not listed in the database, check with the program sponsor regarding the status of the accreditation application.

FindFind aa MentorMentor and and Take Take ChargeCharge of of Your Your Future! Future! Great Place to Start GResourcereat Center Place for New toAttorneys Start in Kentucky Resource Center for New Attorneys in Kentucky

mentorIt pays to at have our a back helping to guide,hand in counsel the workplace and encourage when you’re us. just The starting KBA outFind in thea Mentor practice programof law. The is KBA designed Find a Mentor to connect program experienced is designed attorneys to connect withexperienced new attorneys attorneys who with arenew seeking attorneys advice who are and seeking guidance advice in and balancing guidance the in balancingpersonal theand personal professional and professional demands demandsof the practice of the practice of law. of law.

How it it works: works: Qualified mentors sign up and volunteer to participate in the GPS mentor program. New attorneys looking for assistance (mentees) may locate a mentor locatethrough a thementor GPS website through by thethe GPSmentor’s website location by theor area mentor’s of practice. location The mentee or area can of practice. view detailed The information mentee can about view potential detailed mentors information and then about initiate first contact. This self-initiated contact may involve a single issue, or entail a more lasting, formal mentor relationship. The limits of the relationship are mentordetermined relationship. by the preferences The limits of the of theparticipants. relationship are determined by the preferences of the participants. This service is available to new attorneys admitted to practice in Kentucky for five years or less. For more detailed information visit www.kbagps.org and see what the program has to offer. https://www.kybar.org/gps

KENTUCKY LAW UPDATE Newof KBA membershipLawyer and Kentucky Program is the only mandatory CLE state that provides 2 16 sti srebmem a yaw fo gniteem eht launna ELC tnemeriuqer ta on lanoitidda .tsoc Registration is now open online. Please visit https://www.kybar.org/klu Essential Fundamentals forto the register Professional today! and Ethical Practice of Law Advancing the Profession2015 Through Education September 2-3 October 1-2Northern KentuckyNovember Convention 12-13 Center OWENSBOROJanuary 21-22, 2016Russell (Ashland) Prestonsburg Owensboro Convention Center Bellefonte pavilion Covington,Jenny Wiley KY State resort Park September 10-11 October 7-8 November 18-19 Bowling Green Visit www.kybar.org/2016NLPLouisville for more informationLondon Holiday Inn & Sloan Convention Center Kentucky International Convention London Community Center Center September“Within twelve (12) 24-25 months following the date of admission as set forth on the certificate of admission, each personDecember admitted to membership 3-4 to the Kentucky Covington October 28-29 Lexington NorthernBar Association kentucky shall complete Convention the New LawyerCenter Program.”Paducah Lexington Convention Center Julian Carroll Convention Center SCR 3.640 New Lawyer Program

BENCH & BAR | 67 CONTINUING LEGAL EDUCATION

2016 Kentucky Bar Association Annual Convention FEATURED & SPOTLIGHT SPEAKERS ANNOUNCED

he 2016 Annual Convention Planning Committee is pleased to announce the following speakers scheduled for the May 11-13 convention at the Kentucky International Convention Center in downtown Louisville. More information on additional speakers, Tpresentations, and events will be available in the January 2016 issue of the Bench & Bar. Please mark your calendars now to attend! FEATURED SPEAKERS

Wednesday, May 11th Thursday, May 12th Friday, May 13th Featured CLE Speaker Featured CLE Speaker Featured CLE Speaker

Howard Fineman Ray Kelly Ari Shapiro Global Editorial Director of Former Commissioner of Host of NPR’s AOL Huffington Post Media NYPD, having served as All Things Considered Group, former Newsweek Chief Commissioner after 9/11 Political Correspondent and NBC News Analyst

SPOTLIGHT SPEAKERS

John Adams Judge Virginia Kendall Former President of the United States United States District Court Judge for the Northern District of Illinois and noted expert on Paulette Brown child exploitation and human trafficking American Bar Association President Tom Morris Robert M. Cary Author and philosopher Defense attorney for the late U.S. Senator Ted Stevens Dr. Samantha Nutt Gregory Gordon Founder of the international humanitarian International criminal law and war crimes organization War Child prosecution expert Jonathan Tukel Prosecutor of the “underwear bomber” case

68 | NOVEMBER/DECEMBER 2015 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 photo- WW graph appearing with announcements. Paid professional announcements are also available. Please make checks payable to the Kentucky Bar Association.

OnWW the Move school law, civil rights, insurance defense, from the firm’s Lexington office. She has Bingham Greenebaum Doll LLP ann‑ bad faith, construction law, commercial 15 years of experience advising utilities, ounces that two attorneys have joined the litigation and personal injury. Lee also municipalities, manufacturers and other firm’s Louisville office as associates. Jane practices in the area of corporate law. He businesses with respect to a broad range th Feist assists with a variety of matters invol‑ has served as the 45 District Representative of Kentucky and federal environmental ving corporate transactional, health care, in the Kentucky General Assembly since law compliance, permitting, and litiga- health insurance, and intellectual property 2001. He currently holds the leadership tion issues, including issues relating to air matters. Feist earned her J.D. from the Uni- position of House Minority Caucus Chair- pollutant emissions, solid and hazardous versity of Alabama School of Law, grad‑ man, and was previously elected House waste, wastewater treatment, renewable uating cum laude in 2015, after receiving Minority Whip from 2006–2008. Wills’ energy projects and brownfield redevelop- her undergraduate degree from Centre defense-oriented litigation practice spans ment. She is an active member of the Ken- College in 2011. She excelled as a law the areas of employment tucky Bar Association, having served as past student, earning the Hugo L. Black Scholar law, products liability, chair of the Natural Resources Law Section. Award, the William B. Moore Award, construction law, insur- and serving as editor of the Alabama Law ance coverage and busi- The law firm of Gess Mattingly & Atchison Review. In 2013, she served as a law clerk ness disputes. He counsels announces that the following members of at both the Tennessee and Alabama Attor‑ employers on litigation the regional law firm of Bowles Rice will ney General’s Offices. She is fluent in avoidance measures and handles numerous join as members of Gess Mattingly on Jan. Spanish. Dillon S. Nichols assists with corporate and business transactions. Wills 1, 2016: Spencer D. Noe – business, govern- numerous matters involving business law, also assists clients with estate planning, ment, insurance; Richard A.Whitaker and also has experience in international probate, and trust and estate administration. – real estate, business; J. Thomas Rawlings- corporate and tax law cases. Dillon earned Wills serves as the president of the Fayette litigation, business, construction; Donald his undergraduate degree from the University County Bar Foundation Board of Directors. M. Wakefield - administrative law, business, of Southern California in 2008, where he litigation. Also joining the practice, of graduated magna cum laude. He then earned Thomas J. Keuler, David L. Kelly, Theo- counsel, are: Charles W. Curry – estate his M.A. in diplomacy and international dore S. Hutchins, Stacey A. Blankenship, & trust, business; Bernard F. Lovely, commerce in 2013 from the Patterson and Robert W. Goff announce the for- Jr., – equine, business. The firm will School at the University of Kentucky. In mation of Keuler, Kelly, Hutchins, & continue to operate from its offices at 201 2015, he earned his J.D. from the Uni‑ Blankenship, LLP (KKHB). KKHB is W. Short Street, Lexington, Ky., (859) versity of Kentucky College of Law and a full service civil law firm located at 100 252-9000, www.gmalaw.com. received the Book Award for Professional South 4th Street, Suite 400, Paducah, Ky., Responsibility. He was the executive pub‑ (270) 448-8888. KKHB announces that lisher of the University of Kentucky’s Kristen N. Worak and Lesley A. Owen Ex-Patt Magazine, specializing in inter- have joined the firm as associates. national affairs. He was also the executive Sitlinger McGlincy & Theiler announces development editor for the Kentucky Journal Spencer D. Noe Richard A.Whitaker J. Thomas Rawlings that Ashby Angell has joined the firm as an of Equine, Agriculture & Natural Resources associate practicing in the field of personal Law. He is also fluent in Spanish. injury and insurance defense litigation. Angell earned her J.D. from the University Sturgill, Turner, Barker & Moloney, of Louisville Louis D. Brandeis School of PLLC, announces that Law in 2015. J. Stan Lee and Tim‑ Donald M. Wakefield Charles W. Curry Bernard F. Lovely, Jr. othy C. Wills will be Bingham Greenebaum Doll LLP ann‑ joining the firm effec‑ Lawrence & Associates announce the addi‑ ounces that environmental attorney Kelly tion of Danielle Rodriguez as an associate tive Jan. 1, 2016. Lee D. Bartley has rejoined the environmental is a litigator with ex‑ attorney. Rodriguez will head the firm’s & natural resources practice group as of social security section and will assist in the perience in the areas of counsel. Bartley will continue her practice

BENCH & BAR | 69 WHO, WHAT, WHERE, WHEN

firm’s consumer bankruptcy section. Rodri- mergers and acquisitions, regulatory ed to a second office guez is a 2014 graduate from the Salmon and contractual compliance, partnerships at 904 Lily Creek P. Chase College of Law and is currently and affiliations, and healthcare operations. Road, Ste. 202, Louis‑ active in AppalRed Legal Aid. Clifton received his bachelor’s degree from ville, Ky., on Oct. 15, Western Kentucky University and his law 2015. Setareh Mill- O’Bryan, Brown & Toner, PLLC, is pleas‑ degree from the University of Kentucky. erlile, who was licen- ed to announce the relocation of their Lou- sed in 2013, and isville office to 401 South Fourth Street, Bingham Greenebaum Doll LLP announ‑ Amanda Petrie, licensed in 1995, are working uite 2200, Louisville, KY 40202. Their ces that attorney Timothy W. Dunn has in the Louisville office. Millerlile attended phone and fax numbers remain the same. rejoined the estate planning practice group the University of Arizona, James E. Rogers in the firm’s Lexington office. Dunn’s prac- College of Law in Tucson, Ariz. Petrie Micki W. McDaniel has recently relocated tice is concentrated in the general areas of attended the University of Kentucky Col- her office to 213 West Main Street, Suite estate planning, small business planning, lege of Law. 300, Danville, KY 40422. The office phone asset protection planning and estate and is (859) 351-0842. McDaniel recently pur- trust administration. In addition to his estate Elizabeth McKinney chased and remodeled the historic Gem planning practice, Dunn also represents joined the law firm Supply Building in downtown Danville. fiduciaries in all aspects of estate and trust English, Lucas, Priest administration. He received his J.D., cum & Owsley, LLP, in Avery & Schurman, laude, from the University of Kentucky Bowling Green on PLC Attorneys-at- College of Law. He currently serves as a September 1 as a Law, announces the member of the Board of Directors and VP partner and attorney. addition of Brittany of Finance for the Lexington Philharmonic She works primarily in the areas of estate, Bailey McKenna as Society. He also serves as a board member probate, wills and taxation. She has been an associate attorney. and past president of the Lexington Chap- an attorney for 20 years. She is also a McKenna previously ter of the Society of Financial Service licensed certified public accountant, work- served as a staff attor- Professionals. ing as an accountant prior to her career ney for the Honorable Justice Lisabeth H. in law. Besides estate planning, wills, pro- Abramson of the Kentucky Supreme Court. Stoll Keenon Ogden bate and taxation, she will work with busi- She earned her J.D. from the University of PLLC (SKO) ann‑ ness clients, such as corporations, limited Louisville Louis D. Brandeis School of ounces that Kelley liability companies and partnerships on a Law in 2012 and earned her B.A. from the Rosenbaum Schenck variety of business and corporate issues. University of Kentucky. McKenna is cur- has joined SKO as McKinney earned a Bachelor of Science rently a member of the Louis D. Brandeis counsel to the firm. degree from Western Kentucky University Inn of Court and Phi Beta Kappa. She is Schenck’s practice is in 1985 and a Juris Doctor degree from the focusing her legal practice in the area of focused on business University of Kentucky College of Law in civil litigation. services, healthcare and mergers and acqui- 1995. She is a native of Lewisburg, Ky., sitions. She is located in the firm’s Lexing- where she serves as chairman of the Board The Lawrence Firm, PSC, announces that ton office. Schenck’s career began in 2008, of Lewisburg Banking Company. Ohio attorney Lindsay Lawrence is now assisting clients with asset deals, stock deals licensed in the Commonwealth of Kentucky. and matters related to contracts. She also O’Brien Law Group Lawrence is also serving on the American is experienced in corporate governance and announces that Association for Justice Women Trial Law- organization requirements for limited liabil‑ Adrienne Pfendt has yers Caucus State Outreach Committee. ity companies, corporations and non-profit joined the firm as an She currently focuses her practice in the entities. Previously, Schenck served as a associate attorney. areas of medical malpractice, wrongful judicial intern for the Honorable Karen Pfendt graduated death, personal injury, automobile accident K. Caldwell, United States District Court, from the University and mass torts. Lawrence can be contacted Eastern District of Kentucky. Schenck of Kentucky College of Law, where she was at (859) 578-1930 or llawrence@lawrence- holds a bachelor’s degree from Miami a member of the Kentucky Law Journal, firm.com. University of Ohio and earned her Juris Trial Advocacy Board, Honor Council, and Doctor from the University of Kentucky Women’s Law Caucus. She also holds und- TeamHealth, a leading physician services College of Law. ergraduate degrees from the University of organization, named Steve Clifton exec- Kentucky in political science and Spanish. utive vice president, general counsel and Walters Meadows She will focus her legal practice in the area corporate secretary effective Sept. 14, 2015. Richardson, PLLC, of immigration law. Pfendt is fluent in the Clifton provides counsel to TeamHealth’s announces the open- Spanish language. Board of Directors and clinical and admin- ing of their Louisville istrative leadership. He also directs and office. The insurance Morgan & Pottinger, P.S.C., announces manages the legal functions of the orga- defense firm expand‑ that Ben Crittenden has joined the firm as nization, including corporate governance, Setareh Millerlile 70 | NOVEMBER/DECEMBER 2015 of counsel. Crittenden, finance law, including dedicated to meeting member needs relat- a leader in adminis- bankruptcy, foreclo- ing to substantive law issues in patent, trative and regulatory sure, workouts and trademark, copyright and trade secret litiga- law, will support several secured transactions. tion as well as professional and business of the firm’s practice Felix Sharpe joins the development. Hall concentrates his practice areas, including comm- Lexington office and in the areas of patents and litigation involv- ercial litigation, appel- will practice out of the ing medical technology, life sciences, and Ben Crittenden late law and goverment litigation department chemical products and inventions. He is a and regulatory litigation. He has more than where he focuses his registered patent attorney who practices a decade of experience representing busi- practice on com- before the United States Patent and Trade- nesses and individuals in matters before mercial litigation. mark Office and in federal and state courts. state and local government agencies at one Andrea Aikin joins He is a former president of Kentucky of the largest law firms in Kentucky. the Louisville office Defense Counsel and former vice chair of and will practice out the Biotechnology Law Committee of the Wyatt, Tarrant & of the litigation department focusing on a American Bar Association. Hall earned his Combs, LLP, ann‑ wide variety of civil matters. undergraduate degree from the University ounces that Michael of Louisville, magna cum laude, and his law N. Fine, an attorney Smith and Smith, Attorneys, announce degree from the University of Cincinnati experienced in assist‑ that Jacob W. Crouse has joined the firm College of Law. ing non-profit and as an associate. Crouse is a 2004 graduate tax-exempt organiz‑ of Shippensburg University and a 2011 Rendigs congratu- ations, has joined the firm. Fine recently graduate of the Louis D. Brandeis School lates Partner Michael relocated to Louisville from Washington of Law at the University of Louisville. He P. Foley on his recent D.C., where he was the co-chair of the Tax is a member of the Kentucky, Louisville and election to member- Exemption Affinity Group at the inter‑ Indiana Bar associations. bership in the Amer- national law firm of McDermott, Will ican Board of Trial & Emery LLP. Fine received his J.D. from Stites & Harbison, Advocates (ABOTA). the University of Pennsylvania School of PLLC, announces the Membership in ABOTA is by invitation Law, and his undergraduate degree from addition of Katrina only and is limited to attorneys who have Washington University in St. Louis. Fine Lynn Dannheim to completed at least 20 civil jury trials to jury advises tax-exempt organizations on trans‑ the Louisville office. verdict or hung jury as lead counsel. Further, actions, corporate governance, executive Dannheim is counsel ABOTA-initiated attorneys must possess compensation, joint ventures, charitable with the firm in the “high personal character and honorable contributions and obtaining tax exemption. business litigation reputation” per the ABOTA Constitution Fine is active in the American Health Law- service group. Her practice primarily and Bylaws. yers Association, as vice chair of the tax and focuses on clients in the financial services finance practice group. He has also been industry whom she defends against various After 23 years of ser- invited to join a “Non-Profit Task Force” state and federal claims. Prior to joining vice to the Legal Aid formed by the Secretary of State which is the firm, Dannheim practiced financial Society, Executive looking at updating Kentucky’s non-profit services litigation and other general litiga‑ Director Jeff Been statutes. tion at two mid-sized regional law firms announced his retire- where she handled cases in Alabama, Miss‑ ment. Been will com‑ Dinsmore & Shohl LLP welcomes four issippi, Louisiana and Florida. Immediately plete his service by associates to the firm.Charles Krebs joins following law school, she served as a judicial late 2015 or early 2016, when the new exec- the Lexington office law clerk for the United States District Court utive director is in place. He has worked and will practice out of for the Southern District of Mississippi. in legal aid programs for more than 25 the corporate depart‑ years, first in Indiana, and then in Ken- ment, focusing his In the News tucky. He joined the Legal Aid Society in practice on transactions Wyatt, Tarrant & Combs, LLP announces 1992 and has held a number of positions, and general corporate that Stephen C. Hall has been appointed including the director of the HIV/AIDS matters. Sarah Mat- as vice chair of the Patent Litigation Sub- Legal Project and associate director. He tingly joins the committee of the as served as executive director for more than Lexington office and Defense Research In- 10 years. He is the fifth executive direc- will practice out of the stitute’s Intellectual tor since Legal Aid’s founding in 1921. corporate department. Property Litigation Been also serves or has served on many She focuses her prac- Section. The Intell- boards and commissions during his time tice in the areas of ectual Property Lit- with Legal Aid, including the Louisville commercial litigation and banking and igation Section is Metro Human Relations Commission,

BENCH & BAR | 71 WHO, WHAT, WHERE, WHEN

Kentucky Access to Justice Commission, chartered Inns of Court in 48 states, the In addition, he will also serve on the Execu- the Louisville Bar Association Board, the District Guam and Japan. Schueler joined tive/Finance Committee and Coordination Metro United Way Board, Community SKO in 2013 and is an associate in the firm’s Committee. At Steptoe & Johnson, Mayes’ Action Partnership, Council for Agency Lexington office. She is a member of the tax practice focuses in the area of business lit- Executives, and Doctors and Lawyers for and business litigation practices. She holds igation. He has experience in various areas Kids. The mission of the Legal Aid Society a bachelor’s degree from the University of of civil and commercial defense litigation, is to pursue justice for people in poverty. Missouri and earned her Juris Doctor from including medical and professional liability, the University of Louisville Louis D. Brand‑ products liability, and premises liability. Doug Myers of Hopkinsville received this eis School of Law. Before joining SKO, she year’s Peter Perlman Outstanding Trial was a law clerk for U.S. Magistrate Judge Scott White, a share‑ Lawyer award. Presented at the Annual Hanly A. Ingram in London, Ky. holder with Morgan Convention of the Kentucky Justice Asso- & Pottinger, P.S.C., ciation, the award is given annually to a DBL Law announces that partner Kevin has received a Gavel lawyer who demonstrates exceptional talent F. Hoskins has been named a 2015 Cin- Award for serving a as a trial practitioner, fights for the rights cinnati Business Courier Forty Under 40 two-year term as chair of consumers—even when cases and causes winner. This annual awards program recog- of the Lexington-Fayette County Board of may be unpopular—shares his or her legal nizes young professionals in the Tri-State Health. White was the first non-medical talents with young lawyers and other mem- who have reached major milestones in their professional to chair the Board of Health bers of the bar and gives back to the legal careers and also made significant contri‑ which was established more than 100 years profession by working with others to pro- butions to the community. A partner at ago to improve the health of the Lexington tect American’s constitutional right to trial DBL, Hoskins practices in the firm’s civil community. by jury. Myers received his Bachelor of litigation, employment & labor and admin‑ Science and Master of Science degrees at istrative law service areas. He focuses Quintairos, Prieto, Murray State University and his Juris Doctor primarily on business disputes, product lia- Wood & Boyer, P.A., Degree from the University of Louisville bility, zoning issues and job-related claims, is proud to announce Louis D. Brandeis School of Law. He served such as Title VII discrimination and retal- that Tanisha A. as president of the Kentucky Justice Asso- iation. He obtained his law degree from Hickerson,a partner ciation and the Kentucky Bar Association. the University of Cincinnati College of in the Louisville office Law, after graduating with a BBA in both has been elected as a member of the Fed- The Leadership Louis- finance and organizational behavior and eration of Defense & Corporate Counsel ville Center has sele- business policy from Southern Methodist (FDCC). The FDCC is composed of cted Stites & Harbison, University in Dallas, Texas. He is one of recognized leaders in the legal community PLLC, attorney David the founders and current board member of who have achieved professional distinction, Owsley as a member the Monica Combs Memorial Scholarship are of high professional standing and demo- of the Leadership Fund and is a an engaged member of the nstrate good moral character. Membership Louisville program for board of advisors for the Goering Center is exclusive and limited, currently only con- 2016. The Class of 2016 will spend 10 for Family & Private Business, at the Uni- sisting of approximately 1,400 professional months of training and hands-on experi- versity of Cincinnati. members from the United States, Australia, ences with local leaders who currently Canada, Europe, Puerto Rico, and other tackle their community’s biggest challenges. Wallace Boggs, PLLC, areas. She practices in the area of general With the benefit of new perspectives and announces that H. David civil defense litigation, including practice in connec tions, Leadership Louisville grad- Wallace was awarded the the areas of long term healthcare defense, uates are prepared to become effective Client Distinction Award employment law, insurance bad faith, community leaders. Owsley is a member 2015 by Martindale-Hu- insurance fraud, personal injury, premises (partner) of Stites & Harbison in the busi- bbell and Lawyers.com. liability and products liability. ness litigation service group based in the Wallace received this distinction of honor, Louisville office. His practice focuses on which is recognition of excellence, based on Wyatt, Tarrant & Combs, intellectual property and complex litigation. client review ratings of 4.0 – 5.0. Wallace is LLP, announces that a named partner at Wallace Boggs, PLLC, one of its attorneys, Stoll Keenon Ogden and concentrates his practice in the areas Allison Brown, has PLLC (SKO) attorney of corporate, banking, and real estate law. been selected for Lead- Maddie Schueler has Wallace advises clients in a variety of areas, ership Louisville been elected for mem- including work outs, banking litigation, and Center’s Ignite Louisville Class of Spring bership in the Central real estate matters. 2016. Ignite Louisville is a seven month Kentucky American Inns program designed for next generation leaders of Court (CKAIC). Since its founding in Steptoe & Johnson PLLC announces that ready to make a positive impact both in their 1980, the American Inns of Court has attorney Gregory E. Mayes Jr. has been career and in their community. Brown is grown faster than any other organization elected to the Board of Directors for the a member of Wyatt’s Litigation and Dispute for legal professionals, with nearly 400 Coalition for the Homeless in Louisville. Resolution Service Team. She represents 72 | NOVEMBER/DECEMBER 2015 clients in a variety of cases, including health the project will also build on the KY Justice Leadership Lexington care litigation, employment matters, and Online system and allow lawyers to provide has selected Stites & commercial disputes. Brown earned her law remote assistance through a pro bono portal Harbison, PLLC, attor- degree, with high honors, from the Uni- on the site. Legal Aid Society is one of 15 ney Marshall Hixson as versity of Washington School of Law and recipients of LSC’s $4 million Pro Bono a member of the 2015- her undergraduate degree, summa cum laude, Innovation Fund, a competitive grant pro- 16 Leadership Lexington from Boston University. gram that invests in projects that identify program. Through the and promote replicable innovations in pro 11-month program, participants are prov- Dinsmore & Shohl ann‑ bono for low-income legal aid clients. ided with opportunities to gain a better ounces two of their att‑ understanding of Lexington and the chal- orneys were named The Lexington Fayette lenges it faces by meeting with and learning Litigation Stars in the Urban County Govern‑ from today’s leaders. Hixson is counsel with 2016 edition of Bench‑ ment Council has app‑ Stites & Harbison in the torts & insur- mark Litigation®. roved Mayor Jim Gray’s ance practice service group based in the Benchmark determines recommendation of Lexington office. His practice focuses on the top trial lawyers by interviewing other Morgan & Pottinger commercial litigation, coal supply litigation, attorneys and clients. Mindy Barfield is a P.S.C. attorney P. product liability, and professional liability. partner in the litigation department. Barfield Branden Gross to serve on the Board of practices in the area of complex commercial Adjustment. The Board performs a number Earl F. “Marty” Martin litigation with a focus on defending bus‑ of decision-making activities associated became president of inesses in contract-related and business with land use and regulations in Lexing- Drake University as of torts litigation; litigation of coal-related ton and Fayette County, Ky. Gross was July 1, 2015. An acco- disputes; and complex also appointed to the Fayette County Board mplished academic ad- insurance coverage and of Assessment Appeals. Gross serves as of ministrator, teacher, and bad faith litigation. counsel. legal scholar, Martin joined Drake follow- Kenyon Meyer’s ext- ing 10 years at Gonzaga University in Spo- ensive litigation exper- Ronald R. Van kane, Wash. Martin holds a bachelor’s ience includes breach Stockum, Jr., recently degree and a J.D. from the University of of fiduciary duty lit- reviewed environmental Kentucky and an LL.M. from Yale Uni- igation, commercial disputes in state and issues relating to the versity School of Law. His parents are federal courts, wrongful discharge litigation, oil and gas industry in Frank and Mary Martin of Hartford, Ky. th and trade secrets and restrictive covenant Kentucky at the 39 Frank is a 1962 graduate of the University issues on behalf of employees and employers. Governor’s Conference of Kentucky School of Law and Marty’s He represents media entities throughout on Energy and the Environment. Van great grandfather, Otto C. Martin, gradu- Kentucky in an advisory capacity and in Stockum is a member of the oil and gas ated in 1911, the 2nd graduating class from litigation. work group established by the Energy and the University of Kentucky School of Law. Environment Cabinet to review and update His grandfather, Earl F. Martin Sr., was a The Legal Services Corporation recently oil and gas regulations in the Common‑ 1942 graduate of Jefferson School of Law announced that Legal Aid Society of Lou- wealth. He also spoke on similar issues to (University of Louisville) isville, will receive an 18-month $333,982 the 2015 Kentucky Oil and Gas Associa- Pro Bono Innovation Fund grant to create tion (KOGA) Annual Meeting. Phillips Parker Orberson a statewide program for eligible military & Arnett announces that veterans to receive the legal assistance they Wm. T. (Bill) Rob- founding partner Bill need. Legal Aid Society, in partnership with inson III has been Orberson has been Legal Aid of the Bluegrass, Kentucky Legal named the 2015 Air- named by Best Lawyers Aid, and Appalachian Research and Defense port Board Member in America© as the 2016 Fund, will coordinate recruitment and train‑ of the Year from the Louisville Lawyer of the Year in the field ing of volunteer lawyers among the four Kentucky Department of Insurance Law. “Lawyer of the Year” is legal aid organizations and create uniform of Aviation. Robinson serves as the chairman awarded to one attorney with the highest intake protocols and case-acceptance pol- of the Kenton County Airport Board which overall peer rating for a specific practice area icies for eligible veterans. The project will oversees the Cincinnati/Northern Kentucky and geographic location. Over the course of also use existing technology to create a International Airport. Robinson began a career spanning almost 30 years of prac- statewide hotline to connect any veteran to serving on the airport board in 1998 and tice, Orberson has represented clients in a trained legal aid staff who will conduct an originally served as chair from 2004-2006. wide variety of insurance-related matters, immediate evaluation of the veteran’s legal Robinson, serves as member-in-charge, of and continues to do so while also serving as issue before referring the client to a pro the northern Kentucky offices of Frost a mediator for parties involved in insurance bono volunteer. To help provide ongoing Brown Todd. He served as president of both and general liability claims. assistance to clients with legal questions, the American and Kentucky Bar associations.

BENCH & BAR | 73 IN MEMORIAM

s a final tribute, the Bench & Bar publishes brief memorials recognizing KBA members in good standing as space permits and at the discretion of the editors. Please submit either written information or a copy of an obituary that has been published in a newspaper. Submissions may be edited for space. Memorials should be sent to [email protected].

AName City State Date Deceased Claude E. Banister Memphis Tennessee May 21, 2015 James Brown Louisville Kentucky February 26, 2015 James William Chambers Glasgow Kentucky September 14, 2015 Rhoda Tolz Daniels Louisville Kentucky September 7, 2015 Gordon Byron Davidson Louisville Kentucky August 17, 2015 Jack Dorman Duncan Burnside Kentucky September 11, 2015 Jo McCown Ferguson Williamstown Kentucky September 20, 2015 Thomas William Goodman Jr. Pikeville Kentucky August 5, 2015 John Steven Greenup Louisville Kentucky August 28, 2015 Farmer Helton Middlesboro Kentucky October 1, 2015 Joseph Ward Johnson Fulton Kentucky March 11, 2015 Sallie M. Kellems Lexington Kentucky September 10, 2015 Charles Bailey Lewis Knoxville Tennessee November 16, 2014 Lawrence M. Magdovitz Clarksdale Mississippi May 24, 2015 Joseph Keller Markel Brownstown Indiana September 3, 2014 James Stephen McDonald Lexington Kentucky August 15, 2015 Richard Oexmann Owensboro Kentucky July 19, 2015 Shirley Ellis Pettyjohn Louisville Kentucky June 6, 2015 Joseph Anthony Pitocco Cincinnati Ohio September 15, 2015 Joseph John Redelberger Louisville Kentucky June 17, 2014 H. Hamilton Rice Jr. Tampa Florida June 11, 2015 Edward A. Siemon Camp Hill Pennsylvania August 15, 2015 Jefferson K. Streepey Georgetown Indiana August 29, 2015

74 | NOVEMBER/DECEMBER 2015 B&B MARKETPLACE BENCH & BAR MARKETPLACE

BUSINESS OPPORTUNITY RENTALS Eastern Kentucky general practitioner seeks to transition her practice to a successor attorney or law firm. Excellent location for an Luxurious Gulf-Front Condo experienced lawyer interested in operating own business or firm Sanibel Island, Fl. Limited rentals of “second home” in small devel- seeking to expand. opment, convenient to local shopping. 2BR, 2 bath, pool, on Gulf. Rental rates below market at $2,600/week in-season and $1,500/ Inquiries to Kathryn Burke at [email protected] or call 606- wk off-season. Call Ann Oldfather (502) 637-7200. 432-0181, Burke Law Office, PLLC. Vacation Rental EMPLOYMENT Historic Charleston, SC, 1820 garden district cookhouse with two PI Junior Associate Attorney ( Jacksonville, FL) luxury units (one short-stay, one monthly) that sleep 2-4 each, Law Firm of Military Veterans is seeking Veterans for their growing off-street parking and a garden-patio near the Upper King restau- law firm. PI Jr Associate Attorneys (0-3 years’ experience and recent rant/entertainment district. See VRBO#418787, #620370. Call grads). Salary commensurate with experience. Please send cover David Elder (843) 789-3174. letter and resume with references to [email protected]. Paradise Found Associate Attorney Bonita Beach, FL. 100 steps to the beach. 2BR, 2BA, sleeper Busy and growing litigation, family law, and creditors’ rights law sofa. Sleeps six. Rates: $1200-2750/wk. Call JoyAnna Anderson practice in Paducah, KY, looking to expand. Seeking to hire an (859) 227-6532. Associate Attorney with 1 – 2 years relevant experience. Tremen- dous opportunity for growth and advancement. Please send cover letter and resume to [email protected]. Only applicants with KY license and connection to local area will be considered. Wanted - Highly Motivated Associate Attorney Position requires strong career orientation and strong academic and/ or professional credentials. Real estate, business and creditors’ rights experience of 3+ years preferable. Must be licensed in Kentucky. Ohio and Indiana licensing a plus. Portable book of business is a plus. Competitive, performance based compensation and benefits package. Interested candidates please email your resume along with a list of qualifications to: [email protected]. FOR SALE Desk Jasper walnut desk in great condition with 82” x 39” top, for sale in Louisville. New keys just made. $1600. Compare to advertised prices at Jasper website of $2,600 to $4,000. Contact Dean O’Leary at 502 882-2555 or at [email protected] if interested. Burial Plots Cave Hill burial plots. Cave Hill estate plot containing 12 burial sites with monument and granite marker privilege. 317-340-7586. SERVICES OFFERED Whistleblower/Qui Tams: Former federal prosecutor C. Dean Furman is available for consul‑ tation or representation in whistleblower/qui tam cases involving the false submission of billing claims to the government. Phone: (502) 245-8883. Facsimile: (502) 244-8383. E-mail: [email protected]. THIS IS AN ADVERTISEMENT.

BENCH & BAR | 75 B&B MARKETPLACE

disciplinary complaint? Judicial Conduct Complaint? Starting at just $69 Providing consultations and representations statewide EASY time recording EASY review of billing progress Timothy Denison EASY-to-customize invoices Attorney At Law Set-up in just minutes 228 S. Seventh St., NO monthly fees. NO internet logins. Louisville, KY 40202 NO lost time. (502) 589-6916 timdenisonlaw.com www.TimeMadeEasy.com THIS IS AN ADVERTISEMENT

Put a WINNER Environmental Law on your next campaign. Ronald R. Van Stockum, Jr. Attorney at Law DALE EMMONS Professional Political Services 228 W. Main St., P.O. Box 1551 Richmond, KY 40475 Shelbyville Kentucky 859-623-3266 Fax 859-623-3633 • Cell 859-333-6674 Phone: (502) 5686838 [email protected] [email protected] www.politicskentucky.comB&B MARKETPLACE THIS IS AN ADVERTISEMENT DE1100-2.3125x2-Cmpn&ElectMgz.indd 1 1/7/13 12:40 PM QDRO QDRO Starting at just $69 Preparation and Processing of QDROs for: Preparation and Processing of QDROs for: +HLU9HULILFDWLRQ0LVVLQJ+HLUV Defined Benefit & Defined Contribution Plans. Defined Benefit & Defined Contribution Plans. :HYHULI\WKHUHODWLRQ/RFDWHG EASY time recording Military, Municipal, State & Federal Employee Plans. Military, Municipal, State & Federal Employee Plans. VKLSRIWKHGHFHGHQW·V:HLGHQWLI\ ORFDWH EASY review of billing progress Qualified Medical Child Support Orders. Qualified Medical Child Support Orders. NQRZQKHLUV\RXUPLVVLQJKHLUV EASY-to-customize invoices Collection of past due Child Support/Maintenance Collection of past due Child Support/Maintenance by QDRO. Set-up in just minutes 6HUYLQJWKH/HJDO3URIHVVLRQVLQFH502-581-9700 by QDRO. [email protected] Louisville, Kentucky NO monthly fees. NO internet logins. 502-581-9700 0DUN(:DONHU &RPSDQ\//& NO lost time. [email protected] Louisville, Kentucky CHAR LES R R .MEE.MEERS ZHEVLWHZZZPLVVLQJKHLUVORFDWHGFRP CHARLESCHAR LES R.MEERSR .MEER S HPDLOZDTHISONHU#PLVVLQJKHLUVORFDWHGFRP IS AN ADVERTISEMENT www.TimeMadeEasy.com THIS IS AN ADVERTISEMENT Patent,3XWD Trademark,:,11(5 Copyright & RQ\RXUQH[WFDPSDLJQUnfair Competition Law CARRITHERS LAW OFFICE PLLC '$/((00216(502) 452-1233 Professional Political Services Louisville and Bardstown locations 228 W. Main St., P.O. Box 1551 carrRichmond,[email protected] KY 40475 www.ca859-623-3266rritherslaw.com . 0## [email protected] THISwww.politicskentucky.com IS AN ADVERTISEMENT '([&PSQ (OHFW0J]LQGG 30 76 | NOVEMBER/DECEMBER 2015 Patent, Trademark, Copyright & disciplinary complaint? Unfair Competition Law Judicial Conduct Complaint? CARRITHERS LAW OFFICE PLLC Providing consultations and representations statewide (502) 452-1233 Timothy Denison Louisville and Bardstown locations Attorney At Law

[email protected] 228 S. Seventh St.,

www.carritherslaw.com Louisville, KY 40202 (502) 589-6916 timdenisonlaw.com THIS IS AN ADVERTISEMENT THIS IS AN ADVERTISEMENT 60

B&B • 7.15