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WWW.NIAI.COM r PHONE: 502 425-3232 r W R L @ NIAI .COM This issue of the Kentucky Bar CONTENTS Association’s Bench & Bar was published in the month of January. Communications & Appellate Advocacy Publications Committee Frances Catron Cadle, Chair, Lexington 6 Solicitor General Bullitt Paul Alley, Florence Elizabeth M. Bass, Lexington By Judge John G. Heyburn II Sandra A. Bolin, Berea Christopher S. Burnside, Louisville 7 Ten Suggestions for an Effective Appellate Brief James P. Dady, Bellevue Alexander F. Edmondson, Covington By Bradley R. Hume Judith D. Fischer, Louisville Cathy W. Franck, Crestwood 12 Utilization of Staff Attorneys in the William R. Garmer, Lexington Kentucky Court of Appeals P. Franklin Heaberlin, Prestonsburg Judith B. Hoge, Louisville By Ann Swain Bernadette Z. Leveridge, Jamestown Christy J. Love, Corbin 16 Discretionary Review Practice in the Theodore T. Myre, Jr., Louisville Kentucky Supreme Court Eileen M. O’Brien, Lexington Richard M. Rawdon, Jr., Georgetown By C. Theodore Miller Sandra J. Reeves, Corbin E.P. Barlow Ropp, Glasgow 19 Penpoint Citations R. Kelley Rosenbaum, Lexington By Cher Eaves Candace J. Smith, Covington Gerald R. Toner, Louisville Sadhna True, Lexington 20 Secrets of the Kentucky Supreme Court: Katherine Kerns Vesely, Louisville A Memoir Michele M. Whittington, Frankfort By Jim Dady Publisher John D. Meyers 22 Internet Citations in Appellate Court Opinions: Editor Something’s Rotting in the Commonwealth Frances Catron Cadle By Michael Whiteman and Jennifer Frazier Managing Editor Shannon H. Roberts Layout Columns David Kaplan • [email protected] 3 President’s Page By Maggie Keane The Bench & Bar (ISSN-1521-6497) is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 5 YLS By Rebekkah Bravo Rechter KY 40601-1812. Periodicals Postage paid at Frankfort, KY and additional mailing offices. 26 Effective Legal Writing By Dr. JoAnne Sweeny All manuscripts for publication should be sent to the Managing Editor. Permission is granted for reproduction with credit. Publication of any article or statement is not Items of Interest to be deemed an endorsement of the views expressed therein by the Kentucky Bar 25 February 2012 Kentucky Bar Applicants Association. Subscription Price: $20 per year. Members 27 KBA Task Force on the Provision and Compensation of subscription is included in annual dues and is Conflict Counsel for Indigents not less than 50% of the lowest subscription price paid by subscribers. For more informa- 37 Order Amending Rules of the Supreme Court tion, call 502-564-3795. 49 Kentucky Bar News POSTMASTER Send address changes to: 57 Who, What, When & Where Bench & Bar 514 West Main Street 66 Kentucky Bar Foundation Welcomes New Fellows Frankfort, KY 40601-1812 68 CLE Cover photo by iStockphoto®

PRESIDENT’S PAGE

LESS THAN A DOLLAR A DAY — IS THE PRIVILEGE TO PRACTICE LAW IN KENTUCKY WORTH THAT?

Maggie Keane

recommendation from the Kentucky Order requires that $7 of the dues paid attorneys, that is either $350 or $220, A Bar Association (“KBA”) Board of by every practicing attorney and $6 of depending upon the date of the judge’s Governors (the “Board”) to raise bar the dues paid by every judge be allocated admission to practice. dues is a difficult and unpopular to the Clients’ Security Fund. Pursuant to The recommendation asks that the decision. But with our bar facing the SCR 3.820, these funds are to provide dues increase become effective July 1, same financial challenges confronted by “indemnification to clients who may 2012. each of us in the profession–whether in suffer pecuniary losses by reason of If the Court orders a dues increase in private practice, public service, or as in- fraudulent or dishonest acts” by a KBA the amount requested, the cost of being a house counsel–the Board, fulfilling its member. From 2004 through June 30, KBA member will still be a “good deal.” fiscal responsibilities, had the courage 2011, the Fund has paid over $840,000 As KBA members, we enjoy a benefit to recommend a dues increase to the to members of the public. The KBA’s no other mandatory bar does. Our Court Kentucky Supreme Court (the “Court”) total exposure for the fiscal year ending rules require that dues payments cover on Dec. 9, 2011. June 30, 2011, was $563,150, while the the costs of providing each KBA KBA dues are set by the Court based amount collected from dues was only member with sufficient CLE hours to upon a recommendation of the Board $110,283. At its November and comply with education requirements to (Supreme Court Rule 3.040(1)). The last December 2011 meetings, the Fund maintain a high standard of competence. dues increase ordered by the Court made awards of approximately $280,000. In 2011, we had the highest number of occurred on July 1, 2004. That increase Confronted with these financial attendees at the Kentucky Law Updates, was expected to fund the operations of realities, in 2011 the Board appointed a 5,191 attorneys (almost one third of our the KBA only through the 2010-2011 Task Force on Dues Structure members). fiscal year. Your Board members and Evaluation, comprised of Board Also, all the KBA officers and Board the KBA staff, being good stewards of members from various areas of the state. members serve without pay, devoting a KBA funds, have worked diligently to At its Nov. 19, 2011, meeting, the Board significant amount of time preparing for reduce costs, successfully delaying the voted unanimously to accept the Task and attending Board meetings, including need to seek a dues increase. Force’s recommendation to seek a dues hearing and deciding discipline matters. Since 2004, the KBA’s expenses for increase. The Board recommended that its “overhead costs,” including the KBA dues be increased, as detailed President’s Notes: (1) The Board at employee retirement contributions, in a Dec. 9, 2011, letter to the Court: its Nov. 18, 2011, meeting approved a employee health insurance, liability (i) for lawyers admitted to practice Resolution in Support of the Report of insurance, taxes, energy and similar for five (5) years or more, dues would the KBA Task Force on the Provision recurring and non-controllable costs, be increased from $270 to $350 per and Compensation of Conflict Counsel have increased by more than 40 percent. year; for Indigents. Turn to page 27 in this For example, the KBA’s portion of the (ii) sensitive to the financial issue of the Bench & Bar or visit health care insurance cost for our challenges faced by new lawyers, dues www.kybar.org to read the Resolution. employees has increased 91 percent and for new attorneys (those admitted to (2) The American Bar Association the KBA’s contribution to the Kentucky practice for less than five (5) years) recently released a report, “Evaluating Employees Retirement System for our would remain at the current rate of Fairness and Accuracy in State Death employees has increased 400 percent. $220; and Penalty Systems: The Kentucky Death In addition to these operating costs, (iii) the separate dues category for Penalty Assessment Report.” To Court rules require a portion of our KBA judges (who now pay $110 in dues) access the Executive Summary and the dues to fund certain public service would be eliminated and judges’ dues full report, visit www.kybar.org. programs. For example, the 2004 Dues would be set at the same level as other

January 2012 Bench & Bar 3 KBA members who serve on the Inquiry We have a great bar but we need substantial and continuing Commission, CLE Commission, Ethics sufficient funding to maintain it and to responsibility for promoting the Committee and Ethics Hotline, as well fulfill our mission under SCR 3.025: to efficiency and improvement of the as the Clients’ Security Fund Trustees, “maintain a proper discipline of the judicial system.” IOLTA Board, Kentucky Bar members of the bar in accordance with For most lawyers and judges, the Foundation Board, Bar Center Trustees, these rules and the principles of the increase would result in our paying less Unauthorized Practice Committee, legal profession as a public calling, to than $1 a day for the privilege of Attorney Advertising Commission, and initiate and supervise, with the approval practicing law in the courts of Kentucky Volunteers For Kentucky Lawyers of the court, appropriate means to – a small price for such an honor. As Assistance Program, devote insure a continuing high standard of commented by one attendee of the 2011 innumerable hours of service to KBA professional competence on the part of KLUs, a dues “increase is justified and members without pay. the members of the bar and to bear a overdue.”

4 Bench & Bar January 2012 By Rebekkah Bravo Rechter, Chair, KBA Young Lawyers Section

ou may not be aware of their plight, awareness and understanding about the sympathetic and caring voice. While all Y but chances are that you know domestic violence epidemic, and to attorneys are welcome to place their someone who is the victim of abuse at encourage attorneys to provide pro bono name on our roster, we especially home. Statistics show that one in four assistance to victims and survivors. encourage the KBA’s newest admittees American women is the victim of The Voices Against Violence program to volunteer their time and status as a domestic violence in her lifetime. continues to fulfill this mission. During member of the Bar. By representing a Kentucky women face a higher risk: one the second half of the bar year, the client at a DVO hearing, you will gain in three women in the Bluegrass is, at Young Lawyers Section has a number of valuable courtroom experience while some point in her lifetime, a victim of fundraisers planned throughout the state providing hope and protection to a domestic violence. An estimated 10 to benefit local domestic violence domestic violence victim. million children are exposed to shelters. The Section also presented a Please contact YLS Voices Against domestic violence every year. And child CLE at the New Lawyers Program in Violence Committee Chair Roula abuse occurs in an estimated 70 percent January, which highlighted the domestic Allouch at [email protected] for of homes where domestic violence is violence epidemic in Kentucky and further information about any of these present. Of course, domestic violence is reviewed the basic legal devices used to efforts. In addition, the Young Lawyers not confined to marital relationships or protect abuse victims. Section would like to thank the Voices even adults. In a survey conducted of In addition, we will continue to work Against Violence Committee members Kentucky high school students, one in with our panel of volunteer attorneys to for their dedication to this important 10 girls answered “yes” when asked if a provide pro bono assistance to victims public service project: Jennifer Parker, boyfriend had ever forced sex against in Domestic Violence Order (DVO) Tara Pope, Liz Younger, Anna her will. hearings in Lexington, Louisville and Dominick, Katherine Finnell, Carey With numbers this staggering, it is Covington. Abuse victims petitioning Aldridge, Brandie Ingalls, Claire impossible to assume that education or the court for protection are desperate. Brickman, Maria Ante, Chris wealth insulates from abuse. The fact is They are in need of your unique Rambicure, Corinne Tirone, Farrah abuse victims cannot be pigeonholed expertise as an attorney, in addition to a Vaughn and Megan Linder. according to race, ethnicity, occupation, socio-economic status, education or age. Call For Nominations The only real commonality among abuse Young Lawyers Section Annual Awards victims is the shame and isolation that results. These feelings of hopelessness Outstanding Young Lawyer Award Service to Young Lawyers Award and embarrassment lead to silence. And Honoring the exemplary Honoring individuals or groups that have that is why, though you may be unaware, accomplishments of a Kentucky lawyer made exceptional contributions to the who is 40 years of age or under or who professional and personal advancement chances are you know someone who is has practiced law for 10 years or less. and mentorship of young lawyers. abused or witnesses abuse at home. In 2008, the American Bar Nathaniel R. Harper Award Young Lawyer Service to Community Association Young Lawyers Division Honoring individuals or groups that Award introduced Voices Against Violence, a have demonstated committment to Honoring a member of the Young Lawyers public service project aimed to raise changing the face of the Kentucky Bar Section for exemplary service to his or her awareness of and prevent domestic by promoting full and equal community through volunteerism, service violence. Through the leadership and participation in the legal profession to non-profit organizations, and/or pro dedication of former YLS Chair through the encouragement and bono legal representation. inclusion of women, minorities, persons Jennifer H. Moore and Committee Chair with disabilities, members of the lesbian, Nominations are due April 2, 2012. Visit Roula Allouch, the KBA Young gay, bisexual and transgendered www.kbayls.org for nomination forms and Lawyers Section has implemented the community, and/or other further details. Contact Carl Frazier, YLS Voices Against Violence project in underrepresented groups. vice chair, with any questions at [email protected] or Kentucky since 2009. Our goals are (859) 231-3968. simple, though ambitious: to raise

January 2012 Bench & Bar 5 APPELLATE ADVOCACY

Building on his reputation as Solicitor General, Bullitt returned to Kentucky with few legal peers. For the next 40 years he stood astride Kentucky’s legal community; representing more national clients than anyone; arguing more big cases around the country; raking in unprecedented legal fees; and bull-doz- ing and offending many of his fellow partners. For a long time, he had argued more cases before the Supreme Court than any other lawyer, save the leg- endary John W. Davis. I will leave to each of you to decide what part of Bullitt’s life is most fasci- Review by Judge John G. Heyburn II into the courtroom to show the effects nating: convincing Princeton University of a shotgun blast. In 1905 at the tender to award him a B.A. degree though he et me recount the reasons why age of 32, he argued his first case before never finished its requirements; saving one should read Mark Davis’ the United States Supreme Court. two major Louisville banks during the L recently published “Life of Though he lost, Bullitt came to the depression; his unusual advisory role in William Marshall Bullitt”: attention of William Howard Taft, then the Alger Hiss espionage trial; his stub- • Learn the blueprint for becoming Roosevelt’s Secretary of War. born fight to save a tiny portion of the one of the nation’s great lawyers. In 1907 Bullitt led a team of lawyers Oxmoor Farm which stood in the path • Understand the origins of many of who convinced the Kentucky Court of of the Watterson Expressway; or the Kentucky’s major law firms. Appeals to throw out the fraudulent sensational burglary of $274,000 (the • Get an illuminating peek at Ken- election of the local Democratic Party equivalent of about $2,000,000 today) in tucky’s and particularly incumbents. Under the new Fusion cash from his home library safe. Louisville’s history in the first half Party administration, Bullitt won more William Marshall Bullitt was a man of of the Twentieth Century. plaudits as the city’s aggressive new many remarkable qualities and a few • Learn about Mark Davis’ first safety director. This is a recurring eccentricities. Mark Davis has woven a unusual encounter with Mr. Bullitt. theme: Bullitt making a strong impres- wonderful portrait of the man and the era • Read a captivating and well writ- sion in whatever endeavor he chose. in which he lived. Read it and enjoy. ten story. In 1908 Taft faced a tough fight for Solicitor General Bullitt: The Life of Many of you may not have heard of the Republican presidential nomination. William Marshall Bullitt William Marshall Bullitt. Though his Remembering the young Bullitt from the By Mark B. Davis, Jr. name has now vanished from the letter- earlier Supreme Court appearance, he Crescent Hill Books head of Kentucky’s major law firms, for sought his help to secure the votes of the www.solicitorgeneralbullitt.com over 50 years he dominated the Ken- Kentucky’s delegation to the Republican tucky legal landscape by force of his National Convention. With his typical Judge John G. great intellect, indefatigable work ethic, ruthless efficiency, Bullitt succeeded in Heyburn II grew and business connections. It would securing the Kentucky delegation for up in Louisville. require more space than permitted here Taft, thus furthering his already growing He received his to begin describing all the anecdotes reputation for succeeding in virtually A.B. degree from and stories which Mark Davis has any challenge that he undertook. Harvard Univer- uncovered in recounting the life and Bullitt was not hesitant about using sity in 1970 and times of Marshall Bullitt. He was a his presidential contacts to further his his J.D. degree larger than life personage, born to the growing law practice. He operated on a from the Univer- manor and self-made all at once. Even national scale. It did not hurt when the sity of Kentucky College of Law in Mark Davis’ conclusion that Mr. Bullitt word got out that he had spent the night 1976. For 16 years, Judge Heyburn was likely more feared than beloved, in the Lincoln bedroom at President was associated with the law firm of only makes the story of his life all the Taft’s invitation. In 1912, Taft asked Brown, Todd & Heyburn, where he more interesting. Bullitt to move to Washington for was a partner at the firm from 1982 William Marshall Bullitt began prac- longer than an evening–as Solicitor through 1992. On March 20, 1992, ticing law with his father in 1895. He General of the United States. Bullitt President Bush nominated Judge made a name for himself by trying cases remains today, one of only three Ken- Heyburn to the United States Dis- for insurance companies and banks. He tuckians to have held that position. trict Court for the Western District of pioneered the use of trial display Though he held the position less than a Kentucky. exhibits, once carting a hog’s carcass year, Bullitt made a huge impression.

6 Bench & Bar January 2012 APPELLATE ADVOCACY

Thus I am content to offer the follow- ing “Ten Suggestions” for an effective appellate brief. The logic inherent in each may appear transparent; however, like many lawyers who have labored in the ring over a long career, I carry in my mind’s eye remnants of psychic scars caused by episodic neglect of the very advice I am now about to offer. Accord- ingly, I wish for the reader the benefit of my experience without the attendant pain of trial and error. To achieve this TEN goal, some elaboration as to each sug- gestion is warranted. SUGGESTIONS Before embarking upon an exploration of my Top Ten list, I deem it important to indulge in one additional detour, namely, FOR AN to define the purpose of the appellate brief, and to make a case for its impor- tance. As to purpose, the brief has a dual EFFECTIVE function: first, to educate the court about the case; second, to persuade the court APPELLATE that one’s position is correct, and all competing positions mere imposters. That the brief is important requires BRIEF little elaboration, for the reader under- stands that many appeals are decided on the basis of the briefs, without oral argu- ment. For this reason alone, the brief demands a quality effort. Yet even if By Bradley R. Hume reasons. First, I would consider it sacri- oral argument is held, the importance of lege to associate “Ten Commandments” the brief can scarcely be overstated, for Be brief, be pointed; with any subject other than cross-exami- at a minimum the brief serves to intro- Let your matter stand lucid in order, nation (although, if pressed, I might be duce the case to the appellate court, and solid, and at hand; persuaded to grant a religious excep- forms the foundation for a favorable or Spend not your words on trifles, tion). Any attempt to borrow “Ten unfavorable first impression. Moreover, but condense; Commandments” for a different purpose law clerks and judges preparing bench Strike with the mass of thoughts, would surely cause the ground to buckle briefs for the appellate panel are apt to not drops of sense; and splinter and gape wide at the recommend certain legal conclusions, Press to the close with vigor, author’s feet. I am sufficiently content including perhaps the suggested out- once begun; with the current state of my existence as come, based upon the relative And leave — how hard the task! — to elect not to throw myself willingly persuasiveness of the briefs before leave off when done. into that abyss. them. In this manner, a good appellate Second, with apologies to Lloyd brief affords the advocate a “head start” Justice Joseph Story Bentsen and Dan Quayle, I knew Irving at oral argument, whereas a poor brief Advice to a Young Lawyer, 1835 Younger (from his tapes, at least), and I distracts the court’s attention from the am no Irving Younger. That confession, advocate’s position. When I shared an early draft of this woefully understated as it may be, is suf- With the above as an introduction of article with a friend and fellow litigator, ficient to convey the essence and the the subject matter, I now turn to my Ten he suggested that I title it “Ten Com- truth, and needs no collateral support to Suggestions, as below: mandments for an Effective Appellate sustain it; nevertheless, I take solace in 1. Be compelling. This is my first Brief,” with a nod to the late great Irv- the fact that I am not alone in this cate- suggestion, and intentionally so. Above ing Younger and his famous lecture, gory, for no one can imitate the master. It all, you are an advocate, and an advocate “The Ten Commandments of Cross- would be inexcusable hubris for me to advocates. Never forget that your job is Examination.” I demurred for two try, and I disclaim any such attempt here. to win the case for your client, or that

January 2012 Bench & Bar 7 failing, to obtain the best possible result. That said, your choice of words and purpose should be cast aside. The advocacy process starts with your choice of facts, while not argumen- Next, be clear in your manner of your brief. The brief is your first and tative in tone or inaccurate in substance, expression. Effective briefs employ sim- best opportunity to convince the appel- can and should be persuasive in effect. ple words, straightforward sentence late court of the correctness of your A well-written Statement of the Case structure, active verbs, frequent and position because it affords you the can persuade even without the adjec- descriptive headings and subheadings, opportunity to say whatever you want, tives and adverbs which transform it regular paragraphs, topical sentences at without fear of objection by your adver- into impermissible argument. If done the beginning of paragraphs, proper sary or interruption by the court, and properly, the reader will begin leaning grammar and spelling and accurate and without a stopwatch ticking in the back- your way even before turning her atten- correctly-styled citations. Conversely, ground. If the court does not allow oral tion to the first word of your Argument. ineffective briefs include slang, jargon, argument in your case, it will also be That should be your goal. Then you can hyperbole, legalese, meandering sen- your last opportunity. Accordingly, your complete your reader’s indoctrination in tences, endless paragraphs, passive brief should be cogent and convincing. the Argument. verbs, sentence fragments and frequent Furthermore, it should be argumenta- 2. Be clear. By this I mean, prima- use of contractions. tive, because your adversary is certainly rily, be clear of your purpose, because Finally, be clear about the relief you going to argue against you. without clarity of purpose all hope is seek. Your Introduction and Conclusion This is not to imply that you should lost. You must determine where you are should spell out what steps you want the argue throughout the brief. There is a going and how to get there prior to Court to take. Should the Court affirm place for argument, and logically embarking on your journey. Before typ- in full, or only in part? Should it enough, that place is in the “Argument” ing the first word of your brief, you reverse, or reverse and remand? Should section. There you should advance your need to have a vision for what the brief it reinstate a lower court judgment? To arguments forcefully, and without equiv- is to accomplish; thereafter, every sec- avoid any misunderstanding by the ocation or apology. However, a caution tion of the brief should be crafted in a court, be specific. is warranted: You should not argue your manner consistent with that vision. Your 3. Be Concise. As an English major, case, at least overtly, in the other sec- Introduction, Statement of the Case I have always found myself challenged tions of the brief, and especially not in (Statement of the Facts), Statement of by this suggestion. My law professors the Statement of the Case (or Statement Issues, Argument, and Conclusion spent three years trying to pound adjec- of the Facts in federal court). The judge should all claim a common theme, and tives and adverbs out of my vocabulary, who reads your Statement of the Case each contribute to the message that your with limited success. When I started my must have confidence that you are actu- client’s position must be sustained if practice at a litigation firm, the draft of ally dispensing facts, not opinions or justice is to be served. Every word, fact, my first brief was 20 pages, and I was hyperbole. She must also have confi- issue, argument and authority should be well satisfied with the final product. dence that your summary of those facts marshaled in pursuit of that theme, and Certain of the quality of my effort, I is accurate and reasonably complete. any tangential or antithetical to your mistakenly assumed the brief would be submitted to the Court without substan- tial modification. Instead, following my mentor’s editing, the brief as submitted was a mere five pages long (or more accurately, five pages short), and it was decidedly better than my draft. Wounded pride prevented me from embracing that conclusion at the time, but eventually I came to acknowledge the truth, painful though it was. So my advice here is simple, straight- forward and, yes, concise: Be succinct. When drafting your brief, say it once; say it well; move on. Then pull up the draft a day or two later and cut it down to size, because your original draft is too long. Trust me. 4. Be candid. Your effectiveness as an advocate depends on your credibility with the court. In turn, your credibility with the court depends upon whether the judges perceive that you have repre-

8 Bench & Bar January 2012 sented the facts, issues and authorities will be rewarded. Conversely, there is lit- dix or fail to meet any of a host of other accurately and honestly. If there are tle of value to be offered beyond an requirements. If this is your situation, facts or cases which undermine your abject apology if the judge cannot locate one of two responses is demanded: position, you must not deny them, mis- the witness’s testimony you referred to either transfer to or associate with more represent them or attempt to sweep because your citation to the record was experienced appellate counsel or under- them under the rug. This is not only inaccurate, or cannot locate the case you take a thorough review of the applicable your ethical duty as an officer of the relied upon because the volume or page appellate rules to ensure compliance. court (see Rule 3.3 of the Kentucky number you cited was wrong. Judges One postscript: If in doubt about a Rules of Professional Conduct); it is have little patience with misstated or rule, a requirement or a deadline, call also sound strategy, because your omitted citations, nor should they. You the appellate clerk or staff attorney for client’s case will be undermined if you have to get them right. assistance. Not only are they always attempt to hide troublesome facts or 6. Be compliant. By this I mean, willing to help, they are experts on cases and are exposed in the attempt. It know the applicable rules and comply appellate procedure as well. is better to acknowledge the flaws in with them as though the very success of 7. Be civil. As attorneys, we are pro- your case and deal with them forth- your appeal depends on it, because it fessionals, and it is incumbent upon each rightly than be chastised in your does. In Kentucky state court, that of us to act like one. This expectation opponent’s brief (or worse, at oral argu- means adhering to Rules 72 through 76 extends to appellate practice just as much ment) for having dishonestly avoided or of the Kentucky Rules of Civil Proce- as trial practice or any other area of the denied them. Moreover, it is always a dure. In federal court, you must follow law. Name-calling and ad hominem Devil’s Bargain to sacrifice your credi- both the Federal rules of Civil Proce- attacks have no place in appellate advo- bility, and with it, your reputation, on dure and the Rules of the Sixth Circuit cacy. Your argument should be that your the altar of a client’s case. No case, and Court of Appeals (or whichever circuit opponent’s position is incorrect, not that no client, is worth that. applies). your opponent is a liar, a cheat or a 5. Be conscientious. Writing an To the inexperienced appellate practi- chump. If your adversary engages in this effective appellate brief demands a gen- tioner (and even at times to the form of unprofessionalism, resist the erous investment of time and a experienced practitioner), the appellate instinct to retaliate in like kind. Invari- sustained effort. It requires detailed rules often seem a patchwork quilt of ably, judges will penalize you for this review of the trial record, diligent confusing and overly-technical require- type of childish behavior. Let them research of the legal issues, painstaking ments, fraught with danger lest you file penalize your adversary instead. drafting and redrafting of the brief, and your brief late, organize the sections of This does not mean that you ignore seemingly endless proofreading of those your brief incorrectly, exceed the appli- misstatements and misrepresentations drafts. To do it properly, you must dot cable page limitation, attach the made in your opponent’s brief. You all of the “i’s” and cross all of the “t’s.” wrong-colored cover, establish incorrect should not. However, you should avoid There are no acceptable short-cuts. page margins, use the wrong-sized font, attributing improper or unethical Dealing with the modern trial record omit a required document in the Appen- motives to opposing counsel. For exam- is both a curse and a blessing. Certainly there are advantages: the videotape trial record is almost immediately available; it affords an eyewitness view of the trial, and it costs a mere pittance, rela- tively speaking. However, unless you can afford to have the record transcribed by a court reporter (an expensive propo- sition, to be sure), that same convenient and inexpensive video transcript is often a bear to use on appeal, particularly when the underlying trial was lengthy. Documenting testimony from the trial videotape is long, tedious, mind-numbing work, yet it must be done, and it must be done well. The facts you reference in your brief must originate from the record, and it is your job to tell the court where to find them. Allow plenty of time to “proof” your citations and references, as this process always takes longer than you anticipate. Diligence is required and

January 2012 Bench & Bar 9 ple, instead of asserting that your adver- unreasonable position is a losing posi- search the official court record for these sary has “misrepresented” the facts or tion, and may taint the court’s documents, which they might or might law, or worse, that he has “intentionally impression of your other arguments, not do if the documents are not readily misrepresented” them, state less judg- including those which might otherwise available. An added benefit is that the mentally and less pejoratively that the have a greater chance of success. judges will appreciate, and perhaps later facts or law set out in your opponent’s 9. Be Choosy. Pick your battles. Just favorably recall, the consideration you brief are “incorrect” or “inaccurate,” because you could argue 10 issues does- extended to them. then cite chapter and verse. The facts n’t mean you should do so. In many Three cautionary notes: First, it is alone will speak volumes for you, and instances the inclusion of weaker argu- easy to succumb to the temptation to be against your opponent, and you can ments will diminish the overall impact over-inclusive. Unless the document is trust the court to draw any warranted of your brief. Unless you happen to have required by the Rules (e.g., the underly- conclusions. Moreover, if your oppo- a large number of outstanding issues ing judgment or opinion under review), nent’s overreaching is egregious (which is rare), it is often better to pick I recommend that you include only enough, you can reasonably expect that your best three or four issues and con- those documents which the judge will the court will also take appropriate centrate on them, to the exclusion of the actually find helpful while reviewing action. others; otherwise, you risk wasting your your brief. There is little sense in clut- Bottom line: This is called “civil” lit- time and the court’s attention on issues tering up a 15-page brief with a igation, so be civil, even if you have to that are unlikely to succeed, anyway. 300-page Appendix for the sake of bite your tongue to do so. “Throw-away arguments” are called that “impressing” the panel. Second, if you 8. Be confident. Sure, you may have for a reason, so throw them away, lest include multiple documents in your doubts about the strength of your they clutter up your brief. Appendix, be sure they are separately appeal, or about certain arguments you Caveat: If you are concerned that you side-tabbed, to facilitate access and are making, but the place for those will waive certain issues by not includ- review. Finally, include an index or doubts is in your office, not in your ing them, insert them at the end of your table of contents at the front of your brief. Let the judges judge; your job is brief to protect the record, but severely Appendix, itemizing each exhibit and to champion your client’s cause. Once limit the amount of space and attention referencing the location of that docu- you have decided what issues to you allot to them. ment in the court record. address, every sentence of your brief 10. Be considerate. Most of us are That completes the Ten Suggestions. should reflect a conviction that your busy, and judges are no exception. As Admonished as I am by the words of client has justice on her side. such, they will appreciate anything you Justice Story, I shall now “leave off,” Of course, unless you are careful, can do to make their jobs easier or save for I am done. confidence can sometimes become (or them time. One suggestion is to include appear to become) arrogance, even on within the Appendix of your brief any Brad Hume is Of the pages of a brief. If you sense that documents the judges will need to Counsel at the your position is too inflexible or review in order to properly understand Louisville firm of extreme, or even seems that way, soften and evaluate your position. This saves Thompson Miller the harder edges of your brief. An them the time and trouble of having to & Simpson PLC, where he prac- tices in the areas of medical and legal mal- practice defense, health care law, professional licensure litigation, and appellate practice. He is president- elect of the Louisville Bar Association, past president of the Kentucky Defense Counsel, Inc., and former chairman of the 1999 KBA Annual Convention. He has taught as an adjunct professor at the University of Louisville Louis D. Brandeis School of Law, where his courses have included medical-legal issues, medical malpractice, and trial practice. Hume is a graduate of Princeton University and Vanderbilt Law School.

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APPELLATE ADVOCACY

often hear oral arguments in Frankfort or Louisville. Currently, each panel member is assigned approximately 10 cases as presiding Judge, who assumes primary responsibility for researching the record and drafting a proposed opinion for circulation to the other two associate Judges. Thus, on a monthly basis, each panel member reviews approximately 30 appeals—10 as pre- siding Judge and 20 as associate Judge. The presiding Judge screens his or her cases to decide whether oral argument would assist the Court in resolving the appeals. Some Judges will grant oral UTILIZATION OF argument if requested by the attorneys. While oral argument can be extremely beneficial to the Court’s review, time STAFF ATTORNEYS consumed in travel to the various oral argument locations obviously limits the IN THE KENTUCKY time each Judge can devote to a monthly docket of 30 cases. COURT OF APPEALS Without experienced staff attorneys, the volume of work alone would quickly overwhelm even the best and By Ann Swain brightest judicial minds. Primarily due to this heavy workload, almost all “Please remember that your function is to correct my errors, Court of Appeals Judges have aban- not to introduce errors of your own.” doned the practice of replacing staff Louis D. Brandeis to his law clerk attorneys each year. Most Judges retain their staff attorneys on a continuing ince its inception in 1976, the Judges of the Court of Appeals have basis, allowing them to develop consid- Kentucky Court of Appeals has disposed of an average of over 2600 erable expertise in appellate work. Sutilized staff attorneys in two filings per year. In that time frame, the Historically, the position of law primary capacities: 1) as traditional Court of Appeals rendered an average clerk originated in the United States “elbow clerks” in the chambers of each of 1600 opinions per year and disposed Supreme Court after the Civil War. In of the 14 Judges; and 2) as part of the of the remainder by order, primarily in his critique of two recent books on Court’s central office legal staff in original actions, interlocutory appeals, Supreme Court law clerks, Sorcerers’ Frankfort. This intermediate appellate and motions for discretionary review. Apprentices: 100 Years of Law Clerks court was created by a group of In addition, each year, the Judges must at the United States Supreme Court and amendments to the Kentucky Constitu- review and resolve 4500 to 5500 pro- Courtiers of the Marble Palace: The tion, known collectively as “The cedural motions as part of their merits Rise and Influence of the Supreme Judicial Article,” in an effort to ease review of an appeal or as part of the Court Law Clerk, David Stras offers an the increasingly heavy workload that Court’s monthly motion docket. interesting view of the origins of the burgeoning litigation had imposed on Merits review cases are divided position and its duties: the former Court of Appeals, which monthly among four three-Judge pan- Although the Supreme Court became the Kentucky Supreme Court els assigned to hear appeals which has been assisted by support by the same Judicial Article. The originate in four distinct geographical staff throughout its history, the newly-created intermediate Court of areas of the Commonwealth. Oral argu- origins of the law clerk may Appeals quickly became the workhorse ments are conducted every month by best be described as a historical of the appellate courts—the court of the four panels throughout the state. accident. Scholars have opined last resort for most matter of right For those cases that originate in central that the impetus for the cre- appeals. Over the past decade, the Kentucky or Jefferson County, panels ation of the law clerk position

12 Bench & Bar January 2012 was the Court’s expanding researching legal issues and checking until a majority decision is reached. docket following the Civil War. citations to the circuit court record. As Substantive suggestions may be Both books, however, present a part of their duties, staff attorneys assigned to the staff attorney for addi- far simpler explanation: Justice often answer questions about the tional legal research or record review. Horace Gray, upon his appoint- record from the other panel members Should one of the associate Judges dis- ment to the Supreme Court, and provide copies of important record sent, his or her staff attorney may assist brought with him a clerkship documents to the associate Judges’ the Judge in preparing the dissent. It is model that he had fashioned as chambers. Appellate attorneys should not unusual for a dissenting opinion to Chief Justice of the Supreme be mindful that only one of the panel change the mind of one of the other Judicial Court of Massachu- members has access to the record and panel members, resulting in the dis- setts. Other Justices surely accordingly may wish to consider senter becoming the author of the found the idea of a law clerk including crucial aspects of testimony majority opinion and the original author appealing as the Court issued or documents in the appendix to their becoming the dissenter. Staff attorneys an all-time high of 298 signed briefs so that information is literally at are often called upon to assist his or her opinions in 1886, about four all three Judges’ fingertips. Judge in making changes during this times the output of the current In general, staff attorneys are called process until the panel is satisfied that Court. Indeed, just four years upon to analyze the issues presented in the opinion is ready for rendition. A following Justice Gray’s light of their own independent research similar procedure is followed if a peti- appointment to the Court, Con- in order to provide working memoranda tion for rehearing is filed. gress authorized funds for the or pre-oral argument draft opinions to This may be a good opportunity to hiring of a “stenographic the presiding Judge of the panel. Of point out the confidential relationship a clerk” for each Justice at a course, the final opinion is always the staff attorney enjoys with the Judge. salary not to exceed “one thou- responsibility of the Judge. The precise Discussions between a Judge and staff sand six hundred dollars each.” extent or nature of a staff attorney’s attorney concerning an appeal remain The early law clerk often participation in the drafting of an opin- confidential even after the opinion is served a Justice for a number ion is a decision as individual as each rendered. Although the opinion speaks of years, and their duties con- of the 14 Judges. When the presiding for itself, any discussions between the sisted of a range of legal and Judge is satisfied that a working draft is Judge or Judges and the staff attorney secretarial work, including ready for circulation, the proposed will not be disclosed except by direc- paying the Justices’ bills and opinion is forwarded to the other panel tion of the Judge. Attorneys should cutting their hair. members who respond with sugges- never contact a staff attorney with tions, both substantive and stylistic, questions that they would not address Fortunately, some of the less desir- able aspects of the job have been eliminated. The Seventh edition of Black’s Law Dictionary defines “law Nonprofit Organization Law Can Be Complex clerk” as a “lawyer who assists a judge with research, writing, and case man- My Practice Is Limited to Advising Nonprofits and agement.” Without the assistance of The Attorneys Who Represent Them staff attorneys performing essential legal research, drafting, and case man- Assistance Provided With agement functions as directed by the • Organizational Formation Judges, resolution of appeals would • Organizational Policies & Procedures slow to unacceptable rates. • Continuous Improvement Systems (Quality) • Board Governance Issues Elbow clerks • Complex Tax Matters To assist in the efficient processing • For-Profit Subsidiaries and Joint Ventures of assigned appeals, each Court of • Attorney General Compliance Procedures Appeals Judge employs two in-cham- • Merger or Consolidation of Nonprofits bers staff attorneys. Each Judge enjoys • Foundation Operational Issues total discretion as to the utilization of staff to best accommodate his or her Conley Salyer, Attorney, J.D., LL.M.; Examiner, Malcolm Baldrige National Quality needs. However, two almost universal Award (MBNQA). [email protected], (859) 281-1171, functions of any Judge’s staff attorney 444 E. Main Street, Lexington, KY 40507. This is an advertisement. are the time-consuming tasks of

January 2012 Bench & Bar 13 to the Judge. Questions of appellate primarily through the Court’s motion docket is handled by the Chief Judge procedure may be addressed to the practice. A three-Judge motion panel or, in his or her absence, by the Chief Court’s central legal staff. meets monthly to review and resolve Judge pro tem. In 2010, over 1650 pro- dispositive motions, original actions, cedural motions were resolved by the Centralized staff attorneys motions for discretionary review, inter- one-Judge docket, in addition to the The Court of Appeals central office locutory appeals, and procedural more than 1000 administrative rulings legal staff consists of two prehearing motions related to the three-Judge that were handled pursuant to strict conference attorneys, a chief staff motions. The civil and criminal motions guidelines established by the Court. attorney, civil and criminal motions attorneys review, research, and make An additional 500 motions were attorneys, and four attorneys who assist recommendations to the motions panel resolved by merits panels in cases in with research and drafting opinions. concerning these matters. After the which motions were filed after the Pursuant to CR 76.03, the conference motions panel has reached a consensus, appeal had been assigned to a merits attorneys screen specified appeals to the motions attorneys prepare orders in panel. One final area in which the cen- determine whether a prehearing confer- accordance with the panel’s decision. tral legal staff assists the Court is in ence will assist the Court or the parties Three-Judge motion panels resolve in the handling of expedited matters such by 1) facilitating a mediated settlement excess of 100 substantive motions or as emergency motions, election of the appeal; or 2) refining or simpli- actions each month. These panels sit on appeals, and parental bypass appeals. fying the issues or briefing schedules. a rotating basis, and motion panel These matters are usually presented to By far, the bulk of the work of the duties are in addition to the Judge’s the Court by the chief staff attorney. central legal staff is devoted to guiding regularly assigned caseload. Without the assistance of motions appeals through the appellate process to Resolution of procedural matters attorneys, the appellate process would prepare them for presentation to a mer- consumes a significant portion of the slow to a standstill, resulting in sub- its panel. Record and briefing issues, as Chief Judge’s time as well. A central stantial delay for litigants. well as finality issues, must be resolved staff attorney prepares a separate before an appeal is ready for assign- docket devoted to purely procedural or Staff attorneys’ contribution to ment—and these tasks are handled one-Judge motions. This one-Judge the judicial system Putting all these numbers in per- spective, John Bilyeu Oakley and Robert S. Thompson, in their work, Forensic Psychiatry PLLC Law Clerks and the Judicial Process: Perceptions of the Qualities and Func- Licensed to practice medicine in Ohio, West tions of Law Clerks in American Virginia, Kentucky and Pennsylvania. Courts, observed that:

919 Sixth Ave. modern American judging in all Huntington WV 25701 courts of national significance – the Office: 304-781-0228 federal courts and the more promi- nent state appellate courts – staggers Fax: 304-781-0229 along despite the burden of bloated Email: [email protected] caseloads and the shortcomings of bobbymillermd.com distinctly human judges only by the TYPES OF SERVICES delegation of a great deal of the labor of judging to law clerks: subordinate, Brain Injury • Civil Competency anonymous, but often quite powerful Criminal Competency • Emotional Damages lawyers who function as the noncom- Employment Dispute • Fitness for Duty missioned officers in the army of the Bobby A. Miller, M. D. Independent Medical Evaluation Medical Malpractice • Quality of Parenting judiciary. Psychological & Neuropsychological Testing Given the volume of the Court of Sex Offender • Litigation Support Services Will Contest • Workers’ Compensation Appeals’ caseload, it seems clear that staff attorneys are essential in affording • Board Certified Forensic Psychiatrist • Director of Forensic Services at Judges the time required to perform • Board Certified Neuropsychiatrist Mildred Mitchell-Bateman Hospital their essential, deliberative function. • Board Certified Psychiatrist & River Park Hospital Judge Glenn Acree of Lexington sums • Residency Trained Neurologist up the work of the appellate staff attor- ney in these terms:

14 Bench & Bar January 2012 If you have a superior intel- Points are earned for working In order for the appellate system to lect and the skills set valued a randomly selected word from continue to function as it should, the highly by the best law firms, Webster’s into any published Judges of the Kentucky Court of and a passion for jurispru- opinion. Here I must also add Appeals must have staff attorneys to dence, justice, and that such words never have assist them with the laborious and time- problem-solving, and also a made it past my judge’s ruth- consuming aspects of appellate work. talent for written and oral less editing. This allows the Judges to devote more communication, you could rise Returning to the words of Justice time to study, deliberate, and discuss the to the upper echelon of the Brandeis, the point is that judges uti- legal issues presented on appeal with legal profession. But these lize staff attorneys to assist them, in so staff and fellow Judges. attributes are not enough if far as possible, in “getting it right.” you want to be a good staff Melvin Urofsky, in an article titled ENDNOTES attorney. Good staff attorneys Brandeis and his Clerks, emphasized 1. Melvin I. Urofsky, Louis D. Bran- must find professional fulfill- that while judges often respect and deis and His Clerks, 49 U. ment in knowing that their encourage their clerks to bring to the Louisville L. Rev. 163, 169 (2010). unsung work contributes to the table a different perspective on a case, 2. Artemus Ward & David L. Wei- advancement of the law, for the judge’s opinion is the one that den. New York: New York there is little else other than matters: University Press, 2006. low pay, low prestige, and the Once clerks had proven that 3. Todd C. Peppers. Stanford: Stan- infrequent thanks of a few. they could do the work, the ford University Press, 2006. Some have questioned the process Justice showed himself quite 4. David R. Stras, The Supreme of allowing staff attorneys to assist in receptive to their ideas, and as Court’s Gatekeepers: The Role of drafting preliminary documents. Dahlia Landis described it, “he took Law Clerks in the Certiorari Lithwick, Supreme Court commentator you in, substantially as a junior Process, 85 Tex. L. Rev. 947, 950- for the online magazine Slate, recounts partner of his firm.” When a 51 (2007) the following anecdote which should clerk raised what Brandeis 5. John Bilyeu Oakley & Robert S. allay that fear: considered a legitimate argu- Thompson, Law Clerks and the Which gets us to Page 60 of ment, he willingly delayed Judicial Process. Berkeley: Uni- this 125-page document. circulating or even handing versity of California Press, 1980. Where the court makes use of down an opinion until the two 6. Lithwick, Dahlia (June 28, 2001). the word ‘edentulous.’ Writing of them came to some settle- Microsoft Bad. Judge Jackson as a former law clerk, I con- ment. If they could not agree, Worse. Retrieved from fess that [use of] the word the clerk understood that the http://slate.com/articles. ‘edentulous’ probably means a ultimate responsibility lay with 7. 49 U. Louisville L. Rev. 163, 169- law clerk somewhere on the the man in the robe. 70 (2010). D.C. Circuit is getting a lot of free pizza and beer tonight. The game is Opinion Bingo.

Ann Swain is currently serving as chief staff attorney for the Kentucky Court of Appeals. Prior to her tenure with the Court of Appeals, Swain was executive director of the Louisville Bar Association. She received her B.A. and Master’s in library science from the University of Kentucky and her J.D. from the University of Louisville Louis D. Brandeis School of Law, where she was a member of the Brandeis Soci- ety. Swain is a member of the National Association of Appellate Court Attorneys.

January 2012 Bench & Bar 15 APPELLATE ADVOCACY

review have been granted.5 In the three years since the most recent change on the Court, 18 percent of over 1,600 motions for discretionary review have been granted. Although the decision to grant review involves far more than assessment of whether the Court agrees with the Court of Appeals decision in question, reversal statistically is more likely than is affirmance after review has been granted. Still, the statistical chance of procuring discretionary review and ultimately prevailing is approximately 10 percent. Over the years, some justices in opin- ions and in publications or seminars have offered their individual opinions regarding their concepts of “special rea- sons.” The best evidence of the Court’s collective consideration, however, comes from reviewing which motions have been granted. In that regard, an indica- DISCRETIONARY REVIEW PRACTICE IN THE tion concerning current trends may be KENTUCKY SUPREME COURT gleaned from reviewing the regularly updated synopses of pending granted By C. Theodore Miller The most common questions involv- motions on the Supreme Court’s website ing discretionary review are, not at www.kycourts.net, under the “Discre- n an effort to enhance the under- surprisingly, what constitute CR tionary Review” resource heading. standing of the discretionary review 76.20(1) “special reasons”3 and what Iprocess in the Kentucky Supreme are the statistical chances of not only Highlights Concerning Contents of Court, I have been asked to share some procuring review but also ultimately Motions and Responses observations and practical pointers prevailing. In attempting to describe the CR 76.20(2)(b) requires the filing of a based upon my experience in serving Court’s case-by-case exercise of discre- motion for discretionary review within the Court in central staff for over 28 tion in continuing education seminars 30 days after a final Court of Appeals years. In doing so, my comments of and otherwise over the years, my best decision. If a timely petition for rehear- course are my own and not those of the response regarding what constitutes ing of an opinion or motion for Court. “special reasons” has been as follows in reconsideration of a final order (or opin- § 10:1 of Baldwin’s Kentucky Lawyer’s ion and order) has been filed in the The Decision Whether to Seek Handbook, Appellate Practice: Court of Appeals, the 30-day period runs Discretionary Review Although “special reasons” from the disposition of such a petition or Several factors should be considered escapes precise definition, gener- motion. CR 76.20(2)(c) mandates dis- before filing a motion for discretionary ally if a novel question of missal of an untimely motion for review, which rarely succeeds as a statewide significance, a legal discretionary review. Extensions of time mere “knee jerk” reaction to having proposition that requires reexami- requested prior to expiration of the perti- lost an appellate decision in the Court nation, or a matter in which lower nent period are not precluded. of Appeals. To begin, a prospective courts have conflicted is raised, With regard to the contents of the movant must make sure that the Court the granting of review is more motion, many motions continue to con- of Appeals has rendered a final deci- likely. A contention that the appel- tain narratives not complying with the sion as envisioned by CR 76.20(2)(b).1 late court has clearly erred is not CR 76.20(3)(d) requirement of a “clear Further, although cases imposing sanc- necessarily persuasive.4 and concise statement of (i) the material tions for failure to seek discretionary The percentages tell more of the facts, (ii) the questions of law involved, review in “good faith” have not been story. Since 1983, when the Kentucky and (iii) the specific reason or reasons cited in recent years, the provisions of Supreme Court began requiring four why the judgment should be reviewed.” CR 73.02(4) apply to motions for dis- votes (rather than three) to grant discre- Such a statement should be included cretionary review and bear tionary review, only 15 percent of even for relatively short motions. As consideration.2 nearly 17,000 motions for discretionary with all other considerations concerning

16 Bench & Bar January 2012 motions for discretionary review, case- by each justice individually prior to col- CR 76.12 but that no oral argument will by-case circumstances control. As a lective consideration by all seven be scheduled. When a recent opinion of general rule, though, a page or two justices during the next Court confer- the Court potentially impacts a pending rarely will suffice to provide the Court ence week. Each motion is called on the motion for discretionary review, the with sufficient information regarding a docket and discussed during conference pending motion may be granted in an request for review. Neither, however, to the extent that any justice desires to order summarily vacating and remand- should a movant feel compelled to write address any aspect of the case. A mini- ing for reconsideration by the to the full extent of the CR 76.20(3) 15- mum of four votes are necessary in appropriate lower court. page limit when five pages suffices to order to grant discretionary review. Briefing time is suspended if the accomplish the task. Similarly, four votes are necessary in respondent files a CR 76.21 cross- CR 76.20(4) specifies the minimum order to modify the publication status of motion.7 The respective time attachments to be appended to the a Court of Appeals opinion upon denial requirements for a cross-motion and motion. Although the decisions of the of discretionary review. cross-response are only 10 days. The lower courts (including final post-deci- standard for a cross-motion is not “spe- sion rulings) and any administrative What Happens After Review cial reasons” but a much more easily agency decisions are required, inclusion is Granted satisfied standard specified in CR of a pertinent pretrial ruling or for If the motion is granted, unless the 76.21(1) as “designating issues raised in example a particular contract or will at order indicates otherwise the case will the original appeal which are not issue also should be considered. In that proceed to briefing pursuant to CR included in the motion for discretionary regard, although the Court can and does 76.12 and subsequently to oral argu- review but which should be considered frequently request the record for review ment pursuant to CR 76.16 prior to in reviewing the appeal in order to prop- in considering whether to grant discre- assignment to a justice in the majority erly dispose of the case.” Although the tionary review, the record otherwise for preparation of a draft opinion. If, 1986 adoption of CR 76.21 solved prob- remains at the Court of Appeals unless however, the Court is convinced that lems relating to whether parties needed the motion is granted. If a “not to be oral argument seems unnecessary in to file “protective” motions for discre- published” opinion rendered since 2003 order to decide the case, the order grant- tionary review which were frequent in is “cited for consideration” as permitted ing discretionary review will indicate the first decade after the passage of the by CR 76.28(4)(c) when “there is no that briefing will proceed pursuant to Judicial Article creating an intermediate published opinion that would adequately address the issue,” a copy of the opinion must be included with the motion. Although responses to motions for discretionary review are permissive rather than mandatory under CR 76.20(5), respondents always should take the opportunity to tell the Court concisely why review should not be granted under all the circumstances of the case. A one-sentence “no special rea- sons” response, though, is not helpful.

The Decision-Making Process The Kentucky Supreme Court’s deci- sion-making process regarding motions for discretionary review has remained essentially unchanged from that docu- mented in 1985 in the Kentucky Appellate Handbook published by the Kentucky Bar Foundation and Banks- Baldwin Publishing Company.6 Specifically, upon submission motions generally are assigned randomly to one of the Court’s several (currently four) central staff counsel for preparation of a written recommendation regarding dis- position. Such recommendations are circulated, together with the motion and any response(s), for initial consideration

January 2012 Bench & Bar 17 appellate court in Kentucky beginning lous” motions for discretionary suant to CR 76.12 is expanded to in 1976, the failure to file cross-motions review. In Prater Creek Processing permit the cross-motion issues to also occasionally created traps for the Company v. McClanahan, 741 be addressed in the combined unwary. In the recent case of Fischer v. S.W.2d 278 (Ky. 1987), the Court appellee/cross-appellant’s brief, Fischer, 348 S.W.3d 582 (Ky. 2011), the dismissed a motion for discre- with the response to those issues Court sought to eliminate such traps by tionary review requesting further being addressed in the combined stressing the permissive language of CR review only of an order denying a cross-appellee/reply brief. 76.21 and the need to file such motions motion not to publish a Court of 9. Although far fewer in number, CR only when the Court of Appeals Appeals opinion. 74.02 motions to transfer from the resolves an issue against a respondent in 3. In pertinent part, CR 76.20(1) pro- Court of Appeals and CR 76.37 a decision regarding which the movant’s vides as follows: “A motion for motions for certification of ques- motion for discretionary review has discretionary review by the tions of law also are matters been granted.8 Supreme Court of a decision of the within the Kentucky Supreme Court of Appeals . . . shall be pros- Court’s discretion, as are CR Summary ecuted as provided by this CR 65.09 injunction proceedings. The As is apparent, motions for discre- 76.20 and in accordance with the majority of opinions rendered by tionary review are resolved by individual Rules generally applicable to other the Court, however, involve and careful case-by-case consideration. motions. Such review is a matter of appeals as a matter of right in (1) Although the number of such motions judicial discretion and will be RCr 12.02 appeals in criminal has gone down in recent years, as has the granted only when there are special cases from judgments imposing number of Court of Appeals decisions, reasons for it.” sentences of death, life or 20 years motions for discretionary review still 4. Baldwin’s Kentucky Lawyer’s or more, or (2) CR 76.36(7) account for over half of the filings in the Handbook with Forms, 2011 Edi- appeals in cases filed as original Supreme Court and the primary area in tion (Thomson Reuters). The actions in the Court of Appeals, which the Court can control the content author has updated “Appellate including workers’ compensation of a crowded docket.9 Practice” Chapters 9 and 10 of that cases and original actions in the publication, entitled “Pleadings and nature of petitions for writs of pro- ENDNOTES Practice in the Supreme Court,” hibition or mandamus sought 1. CR 76.20(2)(b) provides as fol- since 1984. The quoted statement against circuit judges. In addition, lows: “A motion for discretionary regarding “special reasons” has the Kentucky Supreme Court has review by the Supreme Court of a been included in that material since original jurisdiction over cases Court of Appeals decision shall be 1984. commenced in the Kentucky Bar filed within 30 days after the date 5. From 1983 until the present, the Association and the Judicial Con- of the order or opinion sought to be percentage of motions for discre- duct Commission. reviewed unless (i) a timely peti- tionary review granted has varied tion under Rule 76.32 or (ii) a only several percentage points from C. Theodore timely motion for reconsideration the 15 percent average. This has Miller, staff under Rule 76.38(2) has been filed been the case even though 30 jus- counsel for the or an extension of time has been tices have served on the Court in Kentucky granted for that purpose, in which that time and even though the num- Supreme Court event a motion for discretionary ber of such motions filed has varied since 1983, review shall be filed within 30 days over the years from less than 500 to received his after the date of the order denying over 900. A.B. in econom- the petition or motion for reconsid- 6. The Kentucky Appellate Handbook, ics from the eration or, if it was granted, within updated with cumulative services in College of William & Mary in 1975 30 days after the date of the opin- 1989 and 1993, was the precursor and his J.D. from William & Mary’s ion or order finally disposing of the of the current Kentucky Practice, Marshall-Wythe School of Law in 1978. Prior to joining the Supreme case in the Court of Appeals.” CR Appellate Practice, Volume 19, Court staff, Miller spent two years in 76.20(3)(b) also provides in perti- which also addresses the Kentucky the private practice of law and three nent part that a motion for Supreme Court’s deliberative years as a central staff attorney for discretionary review “shall contain process in Chapter 1:2. the Kentucky Court of Appeals. . . . the date of final disposition by 7. The full time for briefing the previ- During the past decade, he also has the Court of Appeals.” ously granted discretionary review served for two years each on the 2. In Freeman v. Commonwealth, 697 starts again upon entry of an order national executive boards of both S.W.2d 133 (Ky. 1985) and Walker granting or denying the cross- the Council of Appellate Staff Attor- v. Commonwealth, 714 S.W.2d 155 motion. See CR 76.21(3). neys and the National Association (Ky. 1986), attorneys for movants 8. If a cross-motion is granted, CR of Appellate Court Attorneys. were sanctioned for filing “frivo- 76.21(4) provides that briefing pur-

18 Bench & Bar January 2012 APPELLATE ADVOCACY

“The claimant asserts that in his deposition, the cashier identified the blue car. The judge has reviewed the “Penpoint” Citations deposition carefully and thoroughly and cannot find that passage of testi- mony. The motion is therefore By Cher Eaves Is it really? If the writer does not take overruled.” the time to cite the page number, he n 1990 my first legal writing profes- might be remembering some words that The attorney has just lost a point, pos- sor started the class with this play on were spoken off the record. If the writer sibly an important point, because he Iwords: does go to the trouble of finding the failed to give the judge a page number. exact phraseology for a quote, for The attorney will not get a second chance. “When I say ‘pinpoint cite,’ I mean instance because the doctor said some- Judges do not like professional treas- ‘penpoint cite.’ In a legal document, thing just right, then the writer should ure hunts. The judge weighs the the recipient should be able to point go the extra baby step and indicate the evidence. The lawyer presents the evi- her pen at the page you have cited.” page number. This lends authority and dence in a manner to advocate In legal writing today, I do not see integrity to the work. effectively for her client. Drowning a much of that precision. As clerk for an Pinpoint cites are actually required, judge in paper does not constitute effec- administrative law judge, I read hun- but nobody enforces the rule. Instead, tive advocacy. A judge cannot with dreds of briefs, motions and objections. when they have time judges’ clerks page impartiality “just take your word for it” As an attorney for 15 years, I wrote through tomes of evidence to find out that a two-inch thick document includes hundreds of them. I always cited a case whether the quote really is in there. the statement alleged to be “in there.” or passage of evidence “bell, book and When they do not have time, the quote A judge cannot with impartiality sim- candle,” as I was taught. Other attorneys sometimes gets ignored. The writer, not ply accept that Mills v. Walker stands for do not seem to cite with precision. the clerk, is the claimant’s advocate. a particular point of law, simply because Certainly writing gets done more Precision is an important part of written Attorney X says it does. The attorney quickly when one cites generally to advocacy. must cite to the page in the case that “Plaintiff’s deposition, May 5, 2010.” Another important reason to use pin- supports her point. Without a page number, however, the point citations is to avoid being wrong. If a judge or hearing officer does writer comes across like the Mama in “Being wrong” could be interpreted as accept generalized citations, the claim the Prego commercial – “It’s in there, lying to the tribunal. This is not a good may fail on appeal. This will cost the it’s in there!” career builder. client more money. It may also render the attorney vulnerable to a request for Suppose a judge receives a brief and 1 decides to have a look at the cited pas- RCr 11.42 relief, a malpractice suit, a Cher Eaves has sage. If His Honor cannot find the bar complaint, or just a bad reputation. practiced law in passage because the lawyer gave no Pinpoint citations serve a vital purpose Kentucky, Illi- page number, guess who will be seen as in written advocacy. nois and disingenuous, if not dishonest? Wisconsin since How does an attorney explain this ENDNOTE graduating cum passage to his client? 1. Kentucky Rules of Criminal Procedure laude from John Marshall Law School in 1993. Bilingual in Spanish, Eaves also has Gary M. Weiss a B.A. in political science and an Mediation M.S. in information science. Most When it’s a question of persuasion... recently she has enjoyed clerking Gary Weiss has a passion to come to the right result. for Honorable Larry F. Smith, former Listed in Best Lawyers One of few mediators administrative law judge, who has in America; who maintains an been elevated to the Kentucky Personal Injury active practice Board of Workers’ Claims. Eaves Legal Malpractice so he knows the lives in Ohio County with her hus- And now one of only eight present value of cases band of 13 years. She volunteers at Kentucky lawyers named Hospice of Western Kentucky and for mediation/arbitration Principal Address Louisville Warm Blessings Soup Kitchen. Tele: (502) 493-1394 E-mail: [email protected]@aol.com

January 2012 Bench & Bar 19 APPELLATE ADVOCACY

There can be no doubt about Justice Wintersheimer’s legal philosophy: con- servative in criminal matters; open to a proper argument for holding big institu- tions responsible for harm caused to individuals. Now that he has been retired for four years, let it be said plainly: Justice Win- tersheimer was for law and order. Part of his bedrock philosophy was that in criminal matters courts of review should not substitute their judgment for that of the trier of fact. Review by Jim Dady In his 24 years as a member, the He was never a trial judge, but he Kentucky Supreme Court said what the was loathe to overturn the results of tri- he reader expecting a lurid law was on some of the fundamental als in criminal cases, which make up expose’ of the private lives of his questions in contemporary life, includ- two-thirds of the Supreme Court’s T colleagues in Justice Donald Win- ing: docket. Defendants are entitled to a fair tersheimer’s “Secrets of the Supreme trial, not a perfect trial. Most errors at • Upholding a municipality’s legal Court” is going to be disappointed. trial are harmless. There is little affinity authority to enact a smoking ban;1 Instead, the book provides the retired in Justice Wintersheimer’s opinions for • the abolition of the doctrine of con- justice’s “personal notes, reflections, the expansion of due process accorded tributory negligence;2 and recollections,” profiles his col- the criminally accused since Miranda.8 • a substantial shift toward the defen- leagues, digests more than three decades The old saw is that trial courts find dant in the burden of proof in of appellate court decisions, and gives truth, appellate courts error. In criminal slip-and-fall cases;3 valuable insights into the arts of judging cases Donald Wintersheimer found few • the upholding of the statute grant- and appellate advocacy. of the latter. ing grandparental visitation rights;4 The case commentaries fill 274 pages. Justice Wintersheimer’s Capitol • acceptance of the legal concept of All lawyers must find the law in the chambers may have been regarded as a the right to die;5 traditional way to support the legal posi- conservative’s redoubt, but his opinions • abolition of the heart-balm right of tions they assert. But the commentaries show a solicitude for tort victims. action;6 in the justice’s clear, penetrating prose He wrote the majority opinion in • recognition of the right of action explain the court’s decisions in a way Hoye v. Hoye, establishing in Kentucky for loss of parental consortium.7 the opinions themselves cannot. the right of recovery for loss of parental consortium. It was a notable display of what many would call judicial activism. “The loss of consortium is a judge- made common-law doctrine which this Court has the power and duty to modify and conform to the changing conditions of our society,” he wrote. “When the common law is out of step with the times, this Court has the responsibility to change the law. Devel- opment of the common law is a judicial function and should not be confused with the expression of public policy by the legislature, “ he continued. “The doctrine of stare decisis does not commit us to the sanctification of ancient fallacy,” he wrote. He took something close to the oppo- site position in dissenting from a 4-3 decision by which Kentucky adopted the Learned Intermediary Rule, an

20 Bench & Bar January 2012 exception to the rule of strict liability He is generous with his information “As the reader may have already for manufacturers found in the Restate- and insights into the workings of the gathered, although there is some mys- ment of Torts 2d §§ 402(a). The Supreme Court. Contrary to the impres- tery surrounding the Kentucky Supreme majority thus adopted the position found sion that may have been created by a Court, the real secret is that there is just in the Restatement of Torts 3d, Products review of the book in the popular press, a lot of hard work.” Liability, 6(D) (duty to warn of possible he is lengthily laudatory toward his col- Justice Wintersheimer’s long service, side effects satisfied if adequate warn- leagues and the advocates who came as recorded in the book case by case ing given to patient’s health care before the Court, including and perhaps and year by year, was a great force for provider, subject to exceptions). especially those he felt compelled to truth and justice in Kentucky. The Learned Intermediary doctrine is rule against. Kentucky lawyers who practice an exception to the Kentucky Product Justice Wintersheimer was raised in appeals on a regular basis will ignore Liability statute, and qualifying a Campbell County and educated in his book at their peril. claimant’s rights under the Act should Catholic schools there. He is a graduate be a decision for the General Assembly, of the University of Cincinnati College ENDNOTES Justice Wintersheimer declared. of Law. He was a private practitioner 1. Lexington-Fayette County Food & He lamented the “summary immu- and Covington City Solicitor and has Beverage Association v. nization” extended to drug lived for many years in Covington in a Lexington-Fayette Urban County manufacturers by the majority decision, pleasant modest neighborhood on a low Government (Ky. 1995) 894 and that measuring the adequacy of knoll above the Licking River. S.W.2d 624 product warnings would become a ques- Justice Wintersheimer adamantly 2. Hilen v. Hayes (Ky. 1984) 673 tion for the Court and not the jury.9 supports the election of judges, believ- S.W.2d 713; It is practically impossible to quan- ing it essential to the preservation of 3. Lanier v. Wal-Mart (Ky. 2003) 99 tify who has written the most appellate judicial independence. In the book, he S.W.3d 432; opinions in the history of Kentucky recalls his own electoral struggles, 4. King v. King (Ky. 1992) 828 jurisprudence, and he declines the including two painful losses in judicial S.W.2d 630; honor, but if there were a contest, Jus- campaigns, election to the Court of 5. DiGrella v. Elston (Ky. 1993) 858 tice Wintersheimer would be a favorite. Appeals over a gubernatorial appointee, S.W.2d 698; The book reflects his priestly zeal for and then his relatively narrow victory to 6. Hoye v. Hoye (Ky. 1992) 824 the work. It reveals a veneration for keep his seat against a pair of well- S.W.2d. 422; judicial institutions and respect for the known opponents in 1986, a contest still 7. Giuliani v. Giuliani (Ky. 1997) 951 litigants who use them. fresh in the memory of veteran Northern S.W.2d 318; “Each particular case is important Kentucky lawyers. 8. Miranda v. Arizona (1966) 384 U.S. and entitled to dignity and respect. His digest of the Supreme Court’s 436; 86 S.Ct. 1602; 16 L.Ed. 694 There is little or no room for humor or opinions during his years of service 9. Larkin v. Pfizer (Ky. 2004) 153 sarcasm on the part of the judicial offi- ends with these grace notes: S.W.3d 758. cer,” he said in his recollections. Appellate judges are mired in thou- Words are our canvas. Let us paint for you. sands of pages of briefs and trial transcripts, and Justice Wintersheimer Appellate Law at Miller Wells. describes the value of oral argument: “It forces ... the justices ... and the lawyers ... to come together in the court- room for an hour and argue the case.”

A former reporter and a member of the KBA’s Commu- nications and Publications Committee since 2009, Jim Dady practices in 300 EAST MAIN STREET, SUITE  ă LEXINGTON, KENTUCKY 40507 Kentucky and Ohio from his office TEL 859-309-ă FAX 859-957-1889 in Cincinnati for Mapother & [email protected]

Mapother. He lives in Bellevue. THIS IS AN ADVERTISEMENT

January 2012 Bench & Bar 21 APPELLATE ADVOCACY

Decisis which forms the basis of the Common Law. Increased use of Internet citations in judicial opinions, especially ones that fall victim to link rot, may undermine this system and make it much more difficult for future lawyers InternetInternet CitationsCitations inin and judges from determining exactly how to use a judicial opinion. AppellateAppellate CourtCourt Opinions:Opinions: By way of example, in Common- wealth v. Lopez, 292 S.W.3d 878 (Ky. Something’sSomething’s RottingRotting 2009), the court in footnote 6 claims: “Although that order is not in the record before us, it is available to the inin thethe CommonwealthCommonwealth public in PDF form at: http://www.cemml.colostate.edu/ cultural/09476/pdf/ GeneralOrderGO-1A.pdf. Paragraph 2e of that order pro- vides that the “[i]ntroduction, By Michael Whiteman and material that will no longer be available possession . . . or display of any Jennifer Frazier to future researchers presents a problem pornographic or sexually explicit when trying to ascertain the rationale photograph, video tapes, movie, entucky Courts have embraced behind a judge’s opinion. drawing, book, magazine, or similar the Internet for research as well How big is this problem in Ken- representations” is prohibited.” K as for citation in their published tucky? According to our study the The Court directs readers to a docu- opinions. Like many other states, Ken- courts cited to the Internet3 123 times in ment not in the record that no longer tucky courts are citing to online sources 93 cases. As of June 2011 the URLs for exists at the URL cited by the Court. without any real procedure in place to only 52.8 percent (or 65) were still While it is possible to find the document deal with the frequent disappearance of active and brought the researcher to the from other sources, it is also likely that these sources. In this article we have cited websites, leaving 47.2 percent (or the version retrieved at a later date will studied citation to the Internet by Ken- 58) of the URLs as dead links. This is not be the same version relied upon by tucky’s appellate courts and found that an alarmingly high number when one the Court in this case. the problem of link rot1 is alive and well considers that the first Internet citation In Hardy v. Commonwealth, 2008 in the opinions of the Commonwealth’s dates back to 20004, with some of the WL 466135 (Ky. App. 2008) the court judiciary. We examine the patterns of dead URLs dating back to only 20105. in reviewing the facts of the case wrote: citation and the depth of link rot and The increased citation to Internet offer a proposal for how the courts sources raises two issues for considera- “Hardy exhibiting signs of might deal with this problem with an tion; 1) dead links lead to a loss in the extreme nervousness-broken speech, eye towards preserving information for understanding of the underlying ration- repeated flatulence (a clinically rec- 1 the future generations of Kentucky ale for why a court decided a case in a ognized manifestation of distress), lawyers. particular manner, and 2) it raises the and a quivery voice.” The citation to online sources by question of what a shift from traditional How does an attorney explain this appellate courts is not a new phenome- sources of authority to a more open passage to his client? non. There have been numerous studies source of authority will mean to legal Footnote 1 informs the reader as fol- of appellate court citations to Internet research and reasoning in the Common- lows: “A website (http://harvardatoz. sources and the corresponding issue of wealth. The second of these two issues demo.staywellsolutionsonline.co/71, link rot amongst these cited sources.2 is beyond the scope of this article,6 AZ-s0011) indicates that some people The findings of our study show that while the former is one that has a direct swallow a lot of air when they are nerv- Kentucky is not out of line with the impact upon the way lawyers and ous, and since that air needs an escape practices found in other states, but this judges use judicial opinions. route, flatulence results.” Since this should provide small comfort for the The ability to look at the authority URL is currently dead, there is no way legal community. The idea that a court relied upon by a court in coming to its to determine what information was pub- could cite (possibly authoritatively) to decision underlies the system of Stare lished there. Given that this evidence

22 Bench & Bar January 2012 was amongst the evidence used to deny Total URL citations in 93 cases Links Good Links Bad a motion to suppress the fruits of a strip 123 52.8% 47.2% search, it is possible than in the future, Total Cases KY. S.Ct. KY. Ct. App. this passage can be used by courts as a 93 43 50 basis for evidence that can support an officer’s search of a defendant. In effect this dead URL is resurrected in the Citations by Year jurisprudence of the Commonwealth 2000- without any real chance to understand 2011* 2010 2009 2008 2007 2006 2005 2004 2003 what was actually published and relied 81514126 8 11109 upon by the Court. *through May 2011 “When . . . a court purportedly bases its understanding of the law or the law’s Conference urges chief judges to adopt sion of the Internet resource that was application to case facts upon a source the proposed guidelines11 as a way to relied upon by the judge will be pre- that cannot subsequently be located or preserve the cited internet sources served.”12 The Guidelines further confirmed, the significance of the citation within judicial opinions. suggest that the downloaded internet to that source becomes more ominous. If The Guidelines on Citing to, Captur- resource be placed together with the present readers of the opinion cannot ing, and Maintaining Internet Resources opinion on the court’s CM/ECF system determine how much persuasive weight in Judicial Opinions/Using Hyperlinks (or state equivalent).13 was or should be accorded to the unavail- in Judicial Opinions suggest the follow- These guidelines provide an “easy” able source, they have little reason to ing procedures be taken for preserving system for ensuring future access to place much confidence in the opinion’s online authority cited in a judicial opin- authority cited by the courts. As the authoritativeness.”7 Either a judge’s opin- ion: “[A]n Internet resource to be cited charts above indicate this issue is not ion citing a dead-end source loses some of in an opinion is to be captured, . . . going away; rather, the citation to Inter- its authoritativeness or the system downloaded and preserved as closely as net sources continues to grow. If becomes one in which we no longer try to possible to the time it is viewed by something is not done to preserve the tease out a judge’s reasons for a decision. chambers, to ensure that the exact ver- information cited by judges, the current If this train cannot be stopped, and the authors do not suggest that the train should be stopped, then guidelines should be put in place to ensure that online materials cited by the courts are somehow preserved for future genera- tions. One such solution to this problem is already being tested by the federal judi- ciary. The U.S. Supreme Court handles this issue by requiring the clerk’s or reporter’s office to maintain a hardcopy of any internet source cited in the opin- ion.8 This solution would allow future researchers access to an online source even if the website disappears. The Judicial Conference of the United States has recognized that disap- pearing websites are a growing problem and has begun to address the issue as well.9 The Judicial Conference noted in a memorandum that “[j]udges are citing to and using Internet-based information in their opinions with increasing fre- quency. Unlike printed authority, Internet information is often not main- tained at a permanent location, and a cited web page can be changed or deleted at any time.”10 The Judicial

January 2012 Bench & Bar 23 system will, as one commentator has Process 387, 389, 396–97 (2007); 9. Internet Materials in Judicial Opin- cautioned, do “a disservice to clients, Ken Kozlowski, How Do I … ions and Orders, May 22, 2009, and posterity, to create a body of prece- Solve Linkrot?, 6(2) The Internet available at http://www. dent written on the wind.”14 Guide fot the Legal Researcher inbar.org/LinkClick.aspx?filet- Newsletter 2 (Mar/April 2011) icket=hptDW9DIhFY%3D&tabid= ENDNOTES [Looking at Ohio court opinions]. 356 (on file with authors). 1. “Link rot” is the term used to 3. This does not include citations to 10. Id. describe the effect of a Uniform legal databases such as Westlaw or 11. Id., at 3. Resource Locator (URL), some- LexisNexis. 12. Id. times referred to as the “web 4. Steven Lee Enterprises v. Varney, 13. Id. address” of an internet site, that no 36 S.W.3d 391 (Ky. 2000). 14. Ken Strutin, Written on the Wind: longer works. 5. Fox v. Grayson, 317 S.W.3d 1 (Ky. Be Cautious When Citing Internet 2. See generally Michael Whiteman, 2010). Sites in Legal Documents, N.Y. The Death of Twentieth-Century 6. Michael Whiteman provides a full L.J., June 29, 2004, at 5. Authority, 58 UCLA L. Rev. Disc. discussion of this topic in The 27, 33-37 (2010). See also Coleen Death of Twentieth-Century M. Barger, On the Internet, Authority, 58 UCLA L. Rev. Disc. Michael White- Nobody Knows You’re a Judge: 27 (2010). man is the Appellate Courts’ Use of Internet 7. Coleen M. Barger, On the Internet, associate dean Materials, 4 J. App. Prac. & Nobody Knows You’re a Judge: for Law Library Process 417, 438 (2002); Tina S. Appellate Courts’ Use of Internet Services and Ching, The Next Generation of Materials, 4 J. App. Prac. & Information Legal Citations: A Survey of Inter- Process 417, 429-30, n.34 (2002). Technology, net Citations in the Opinions of the 8. William R. Wilkerson, The Emer- NKU Chase Col- Washington Supreme Court and gence of Internet Citations in U.S. lege of Law. Washington Appellate Courts, Supreme Court Opinions, 27 Just. Prof. Whiteman would like to thank 1999–2005, 9 J. App. Prac. & Sys. J. 323, 334 (2006). Jeremy Enlow and Amanda Perkins for their assistance in compiling the statistics for this article.

Jennifer Frazier started at the State Law Library in 2003 and became the state law librar- ian in September 2006. She received her B.A. in history from Northern Kentucky University in 1998; her J.D. from the University of Louisville Louis D. Brandies School of Law and her Masters in library and information science from the University of Kentucky in 2007. She was admitted to the Kentucky Bar in October 2001. She is a com- missioner on the Kentucky Access to Justice Commission; member of the American Association of Law Librarians; member of the South Eastern Chapter of the American Association of Law Librarians and member of the Kentucky Library Association.

24 Bench & Bar January 2012 FEBRUARY 2012 KENTUCKY BAR APPLICANTS Following is a list of applicants who have applied to take the February 28 & 29, 2012 Kentucky Bar Examination. If anyone has knowledge pertinent to determining the character and fitness of any of the applicants to become a member of the Kentucky Bar, please provide that information to: Kentucky Office of Bar Admissions 1510 Newtown Pike, Suite 156 Lexington, KY 40511-1255 Phone: (859) 246-2381 Fax: (859) 246-2385 E-mail: [email protected] NOTE: This list is current as of December 2, 2011. Any applications filed after this date will not be included in this list.

KATHERINE MADISON ADAMS GREGORY MICHAEL ERPENBECK JEFFREY EDWARD KING DAVID TYLER ROBERTS EVE LALYNN ADEN ANDREA NICOLE FAGAN NICHOLAS TYLER KING SARAH SHALAIN ROBINSON JOHN MARVIN ALDERDICE SUSAN MICHELLE FARRA KEVIN WILLIAM KITA CHRISTOPHER ALLAN ROGERS NATHANIEL JONATHAN ARNETT ELIZABETH RENEA FAVRET JASON MATTHEW KITTREDGE DARLENE MAY ROGERS DOUGLAS EDWARD ASHER II CHRISTINA MICHELE FLANAGAN KELLI ANN KLEISINGER BRIANDA ALUBA ROJAS ALICIA CAROLINE AWKARD MICHELE LYNN FLANIGAN KATHLEEN CLARK KNIGHT MONIKA KAY ROTH BRIAN DAVID BAILEY CARRIE LEIGH FOLTZ NATHAN JOSEPH KOHLER SARAH RUTH RUEDEMAN KRISTOPHER GERALD BATES STEPHANIE REGINA FOX SIDNEY JAMAAL KOLB CHRISTOPHER MICHAEL RYAN JESSICA ELIZABETH BAUML BRENT RYAN FREED JUSTIN MICHAEL KREMER PEYTON MATTHEW SANDS JOSHUA WILLIAM BEAM BARRETT GLENN FREEMAN JODY MICHELLE KYLER JANIE-MARIE CLAIRE SAPON COURTNEY ALYSE BENDER KIRBY JAMES FULLERTON CAROLYN REECE LAWRENCE RYAN MICHAEL SCHULZ KATIE L BENWARD EMILY HELEN FUNK JEFFREY AARON LAWSON NICOLE LEIGH SCHULZE ROSS JAMES BEXTERMUELLER REBECCA LYNNE GALLOWAY ANNA CHRISTINE LEDFORD HINES LEILA AWWAD SEIGRIST ANTHONY JOSEPH BICKEL MELISSA DAVIS GEE KATHLEEN CHAPMAN LEE LENA KAI SEWARD MAUREEN ALLISON BICKLEY DAVID ANDREW GIBBONS MICHAEL TODD LEWIS OLLIELORETTA DESSIEMARIE SHEPHERD JAMES GARLAND BLAND JR WHITNEY MORGAN GOOCH DIANA MICHELLE LINK CHRISTINA ENGLE SHIVELY JOSHUA RICHARD BOLUS TYLER WAYNE GOSSETT THOMAS JONATHAN LITAFIK THOMAS BOURKE SIMMS JR MEREDITH ARVIN BOOTH ASHLEY BLAIR GRAHAM PATRICIA MALLORY LITTLEPAGE JAMES THOMAS SKINNER CATHERINE ELAINE BOUVIER DENISE MICHELLE GRAY PETER RANDOLPH MACON COURTNEY HEAD SMITH SABRINA DAWN BOWLING AUSTIN TYGRETT GREEN JUSTIN SCOTT MADDEN WILLIAM CLAUDE SNYDER EMILY CAROLYN BOYLE NOELLE BRYANT HAEGELE ELIZABETH McKENZIE MARSHALL ERICA MARGARET SPITZIG AMANDA LEAH BRAGG BENJAMIN WILLIAM HAGER TAMMY SUE MASTIN JULIA WHITE SPRINGSTEEN ALEXANDREA DOMINIQUE BRENNAN JOSEPH DANIEL HALBERT ANDREW CHARLES MCCAULEY BARRY SCOTT SPURLOCK DENNA DAWN BROCKMAN KAREEM SHAHIR HAMDIYAH MOLLY MARIE MCCLEESE MARTHA HAMILTON STAUDE PATRICK LAUGHLIN BROWN JOSEPH BARON HAMMONS CHRISTOPHER ALLAN MCGEE AMY REBECCA STEIN CLAYTON TYLER BROWN RYAN CHRISTOPHER HAMPTON ELEANOR IRENE McNEIL MATTHEW DARREN STEPHENS CRAIG MATTHEW BRUNSON COURTNEY MICHELLE HAMPTON JOSEPH JEROME MERKEL TARA LEA STEPHENS MICHAEL JEFFERSON BUCHANAN SHUO HAN DARRELL GLENN MESSER II BRANDON MICHAEL STEVENS GEORGE ALEXANDER BUDD V AUTUMN LEIGH HARBISON MARIA CHRISTINA MIER KYLE EDWARD STEVIE KATHERINE BENNETT BUMGARNER ALLISON DIANE HARTLEY MALISSIA CLARK MILBURN JOHN MICHAEL STRAUB JR JOHN MICHAEL BUNDY JESSICA LYN HAURYLKO JESSICA LEIGH ANN MILLER MORGAN KLEIN STROW CLAIRE WALKER BUSHORN MOLLY ANN HAWKINS ALLISON MARIE MINTON RICHARD SCOTT STUTLER JESSE MATTHEW CALL DOUGLAS TRENT HAWKINS LEIGH ANN MOORE MATTHEW WADE SWAFFORD MICHAEL LANE CANNON LARISSA MICHELLE HELMER MICHAEL GENE MOORE MEAGAN LORENZEN TATE AUBREY MARIE CARMAN JACQUELINE M HERSH ALLISON LEIGH MORRIS YVETTE A. TAYLOR JAMES RYAN CHAILLAND MICHAEL KEITH HIENEMAN LAURA ASHLEY MOSER JENNIFER LYNN TAYLOR MASTEN CHILDERS III ASHLEY RENEE HOOKER MARSHALL PERRY MURPHY CASSIDY ANN TEATER ROBERT DOUGLAS COBURN JOSHUA ROSS HURLEY ALISON LYNN MURRELL SAMANTHA LYNN THOMAS-BUSH JEDEDIAH LAWRENCE CONRAD MICHAEL BRIAN HURLEY WILLIAM JEROME MYERS JR LARRIN CORTNEY THOMPSON JENNA MICHON CORUM RAY SHANE IBARRA JAMES CLARK NORRIS MITCHELL BRYAN THORNTON WILLIAM QUINN COWAN JENNIFER LYNN IMSANDE SHAMEKA LYNN O'NEIL SEAN PATRICK TILLMAN MICHAEL STEPHEN CRAVENS RICHARD JOSEPH INSKEEP STAVROS PANAGOULOPOULOS TERRELL DESHA TOWLES RONALD KEITH CRAYCRAFT JAMIE LaSHAWN IZLAR CHARLES BEGIN PARADIS SHELBY COY TRAVIS MELISSA JANE CRUMP RICHARD DWAYNE JACKSON TIMOTHY L PERDUE NATALIE NICOLE TREECE VANESSA G CUNNINGHAM-ENGRAM CHRISTOPHER LYLE JACKSON OLIVIA MARIE PETERSON JOSHUA SCOTT TUCKER NEAL EDWARD DARNEL ROOZBEH JAHED COURTNEY LAMONT PHELPS KENNETH RAY TURNER JR SARAH BROOK TIMMONS DAUER MATTHEW JOSEPH JOHNSON DAMIAN GRANT PICKERING STEPHANIE LEIGH TYREE BRANDON DEE DAULTON ELIZABETH REED JONES EMILY DENISE POE AARON THOMAS WAGNER LAUREN ELIZABETH DIMMITT GWENDOLYN ROCHELLE JUNGE RICKY LYNN POPE KEVIN DOUGLAS WALKER ALLISON RYAN DIXON KELLI DUFFY KEARNEY JONATHAN KEVIN POWERS BRANDY SHAWN WHISMAN ERIC LOWELL DODSON SARA BETH KELLEY ASHLEY NICOLE PRATHER EMILY LOGAN WILKIE ALEXANDRA ELIZABETH DRESSMAN JOSEPH HAMILTON KEMP KRISTINE TARRANT RAGAN GARY WAYNE WILLIAMS II BRANDY NICOLE EDEN ANDREA MICHELLE KENDALL GIA ELIZABETH RAPP MELANIE E WILSON IRWIN RICHARD EISENSTEIN TONYA RENEE KENDALL RACHEL ELIZABETH RATLIFF JOSEPH ANTHONY WORTHINGTON JR ELISE RENEE ELAM RASHONDA RENE' LAYE KENNEDY SAMANTHA DAVIS RHODES ERIC OWEN YOUNG JEREMY TILFORD ELLIS AMANDA LEIGH KIDD EMILY O'NEAL ROACH ALLISON ANN ZOELLER

January 2012 Bench & Bar 25 EFFECTIVE LEGAL WRITING

Getting Past Procrastination

by Dr. JoAnne Sweeny University of Louisville Louis D. Brandeis School of Law

rocrastination is an age-old con- Here are a few that are most commonly 4. The Right Environment – “I can P cept that has existed as far back as found in the legal profession: only do work when I’m under pressure/ Ancient Egypt and Ancient Greece. it’s the morning/ it’s silent.” Today, procrastination is ubiquitous 1. Immunity from Failure – “I can’t Everyone has preferences on where among students and within every pro- mess this up.” they work and when. However, requir- fession. The problem of procrastination This fear is probably the most com- ing the “right” conditions can place an has affected lawyers to such an extent mon. Fear of failure makes people extremely heavy burden on a writer. that the ABA considers it to be evi- hesitant to begin a project because they You cannot always dictate your sur- dence of lack of diligence and fear the result will not be successful, roundings and the perfect environment, therefore grounds for disciplinary they will have wasted their time and like the perfect project, is extremely action. they will be embarrassed or criticized rare. This kind of procrastination is par- Besides fear of ABA sanctions, there for their lack of success. Of course, if a ticularly harmful for those who like to are many good reasons for lawyers to project is never begun or is unfinished, work “under pressure,” which requires be wary of procrastination. Lawyers it will certainly fail. that you put work off until doing it communicate primarily through the becomes extremely stressful. written word – to each other, clients 2. Perfection – “This must be per- and judges. Last-minute written work fect.” Identifying what kind of procrastinator can be stressful and can lead to poor Perfectionist procrastinators take you are is only the first step. The next results either because the work product immunity from failure a step further. thing you must do is change these faulty has errors or because it ends up being They put off work not just because beliefs that cause you to procrastinate. untimely. Lawyers everywhere have they do not want to fail but because Next time you find yourself putting off a heard of horror stories where a brief or the project must be absolutely perfect. project, stop to consider what specific a motion was rejected for being even This kind of procrastination will most thoughts are causing you to delay. Next, one minute late. likely lead you to being unable to fin- take those thoughts, which will be quite Thankfully, there are a lot of practi- ish a project because, particularly with rigid, and make them softer. Instead of cal tips that can help lawyers overcome legal writing, you can always find saying “this must be perfect,” try saying their procrastinating habits. In fact, in something to change. At a certain “I would prefer this to be perfect.” The the July 2011 issue of Bench & Bar, my point, you must be able to put the red next step is to add a clause that allows colleague, Judith Fischer, gave some pen down. you to escape your previously rigid great advice for combating writer’s demand. “This must be perfect” becomes block. In this article, I would like to 3. Certainty – “I need to know every- “I would like this to be perfect…… but if take her advice a step further and get at thing about this problem before I it isn’t, that will be okay as long as I put the root of writer’s block’s or any other begin.” in my best effort.” This isn’t to say that kind of procrastination. The quest for certainty makes people you should endeavor to submit slipshod The root of procrastination, as noted unable to start a task. For lawyers and work but, instead, allow your work to be in an excellent book, The Mind Gym: legal writers, this kind of procrastina- only good or very good instead of perfect. Give Me Time (Little Brown & Co. tion may entail spending far too much Procrastination can be a serious prob- 2005), is the faulty thoughts that make time researching and not enough time lem for lawyers but this bad habit can us put off beginning a project, continu- actually writing. Unfortunately, all the be broken. By getting at the roots of ing it, or finishing it. research in the world means nothing if why you procrastinate, you can change There are several different kinds of the writing does not communicate your the very thoughts that delay you. Now, beliefs that can cause procrastination. ideas effectively. stop stalling and get back to work.

26 Bench & Bar January 2012 January 2012 Bench & Bar 27 28 Bench & Bar January 2012 January 2012 Bench & Bar 29 30 Bench & Bar January 2012 January 2012 Bench & Bar 31 32 Bench & Bar January 2012 January 2012 Bench & Bar 33 34 Bench & Bar January 2012 January 2012 Bench & Bar 35 36 Bench & Bar January 2012 Supreme Court of Kentucky

IN RE: ORDER AMENDING RULES OF THE SUPREME COURT (SCR)

2012-01

______

The following rules’ amendments shall become effective March 1, 2012.

AMENDMENTS TO THE RULES OF THE SUPREME COURT

I. SCR 2.014 Legal education SCR 3.040, pay a fee of fifty dollars ($50.00) to the Kentucky Office of Bar Admissions, and shall be administered the Constitutional Oath of New subsection (c) and (d) of section (2) and subsection (b) of section Office either by a Justice of the Supreme Court or by the Clerk of the (3) of SCR 2.014 shall read: Supreme Court. Upon completion of the prerequisites, the Clerk shall deliver to the applicant a Certificate of Admission on a form approved (2)(c) In evaluating the education received the Board of Bar Examin- by the Court, and the issuance of the certificate shall be duly recorded ers shall consider, but not be limited to, such factors as the admission by the Clerk. of the applicant to the bar of another state or the District of Columbia, the similarity of the curriculum taken to that offered in law schools IV. SCR 2.300 Reinstatement of persons to practice law Scope and approved by the American Bar Association or by the Association of Purpose of Reinstatement Guidelines. American Law Schools, and that the school at which the applicant’s legal education was received has been examined and approved by New subsections (b), (c), (d), (e) and (f) of section (1) of SCR 2.300 shall other state bar associations examining the legal qualifications of non- read: ABA law school graduates. (1) Initial Reinstatement Application Process: (d) The attorney meets all other requirements contained in the Rules of the Supreme Court of Kentucky pertaining to Admission of Per- (b) Any applicant for reinstatement who is a member of the bar in sons to Practice Law. any other jurisdiction must provide, along with the application, a state- ment from the disciplinary authority of each jurisdiction listing any (3)(b) In evaluating the education received the Board of Bar Examin- complaint or charge that has been filed against the applicant and its ers shall consider, but not be limited to, such factors as the admission disposition. Reciprocal discipline, based on a Kentucky disciplinary of the applicant to the bar of another state or the District of Columbia, order, shall also be disclosed. the similarity of the curriculum taken to that offered in law schools approved by the American Bar Association or by the Association of (c) Any applicant who is permanently disbarred in another jurisdic- American Law Schools, that the school at which the applicant’s legal tion is not eligible to apply for reinstatement in Kentucky. education was received has been examined and approved by other state bar associations examining the legal qualifications of foreign law (d) Upon receipt of a complete application for reinstatement and school graduates, and the applicant’s proficiency in written and spoken payment of necessary fees by an applicant who has been suspended English. more than one hundred eighty (180) days (and in some cases where the suspension has been less than one hundred eighty (180) days) the II. SCR 2.110 Admission without examination Kentucky Bar Association will refer the application to the Kentucky Office of Bar Admissions, Character and Fitness Committee for investi- New section (4) of SCR 2.110 shall read: gation, for a hearing, if necessary, and for a formal recommendation regarding the disposition of the application in accordance with SCR (4) Notwithstanding the requirements stated above, if the applicant 3.500, SCR 3.505, and SCR 3.510. has practiced five of the last seven years in a jurisdiction that permits the admission without examination of attorneys from Kentucky, the (e) Upon receipt of a Reinstatement Application from the Kentucky Character & Fitness Committee may approve admission without exami- Bar Association, the Kentucky Office of Bar Admissions, Character and nation under the same provisions that allow admission of Kentucky Fitness Committee will immediately send the applicant an Application attorneys. for Admission to the Bar. The applicant must complete that form and return it to the Character and Fitness Committee with documentation III. SCR 2.120 Administration of Oath and Issuance of Certificate of specified in instructions accompanying the application. Admission to Practice Law (f) The submission of an incomplete application or the failure of an SCR 2.120 shall read: applicant to submit necessary documentation and/or fees will delay the Character and Fitness Committee’s ability to render a timely recom- An applicant approved for admission under SCR 2.085, 2.110, mendation. Failure of an applicant to submit the application for admis- 2.111 or 2.112 must apply for and be granted a certificate of admission sion to the Bar within thirty (30) days or failure of an applicant to per- prior to engaging in the practice of law in this state. As prerequisites for fect an application within thirty (30) days of the date a notice of defi- the issuance of such a certificate an applicant shall pay the current ciency is sent to the applicant by the Committee may result in an unfa- annual dues or fees of the Kentucky Bar Association authorized under vorable recommendation.

January 2012 Bench & Bar 37 V. SCR 3.030 Membership, practice by nonmembers and classes of member from the practice of law. A copy of the suspension notice membership shall be sent by the Director to the member, the Clerk of the Supreme Court of Kentucky, the Director of Membership, and the Circuit Clerk of Section (2) of SCR 3.030 shall read: the member’s roster address district for recording and indexing. The suspended member may apply for restoration to membership under (2) A person admitted to practice in another state, but not in this the provisions of SCR 3.500. A member may appeal to the Supreme state, shall be permitted to practice a case in this state only if that Court of Kentucky from such suspension within thirty (30) days of the attorney subjects himself or herself to the jurisdiction and rules of the date the suspension notice is recorded in the membership records. Supreme Court of Kentucky, pays a one time per case fee of two hun- Such appeal shall include an affidavit showing good cause why the dred seventy dollars ($270.00) to the Kentucky Bar Association and suspension should be revoked. engages a member of the association as co-counsel, whose presence shall be necessary at all trials and at other times when required by VIII. SCR 3.130 (1.8) Comment 13: Conflict of interest: current clients; the court. No motion for permission to practice in any state court in specific rules this jurisdiction shall be granted without submission to the admitting court of a certification from the Kentucky Bar Association of receipt of Comment 13: Aggregate Settlements this fee. Comment (13) of SCR 3.130 (1.8) shall read: VI. SCR 3.040 Dues: date of payment and amount (13) Differences in willingness to make or accept an offer of settle- Sections (1), (2) and new section (4) of SCR 3.040 shall read: ment are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that (1) On or before July 1 of each year every member of the Associa- should be discussed before undertaking the representation, as part of tion, including every justice or judge of the Kentucky Court of Justice the process of obtaining the clients’ informed consent. In addition, Rule and United States judge in or who is appointed from or maintains a res- 1.2(a) protects each client’s right to have the final say in deciding idence in Kentucky, except board-designated honorary members, shall whether to accept or reject an offer of settlement and in deciding be assessed dues for the ensuing twelve months. Dues shall be fixed whether to enter a guilty or nolo contendere plea in a criminal case. by the Supreme Court on recommendation of the Board. Dues shall be The Rule stated in this paragraph is a corollary of both these Rules paid to the treasurer on or before September 1 of each year. and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each (2) Any member of the association shall be relieved of the payment of them about all the material terms of the settlement, as described of dues for any fiscal year in which the member serves actively for a herein. period of not less than six months in the armed services of the United States of America, other than as a career member of the armed forces. A non-certified, non-class aggregate settlement is a settlement of the claims of two or more individual claimants in which the resolution (4) Any member of the bar may apply in writing to the Kentucky of the claims is interdependent. The resolution of claims in a non-class Bar Association to be relieved of the payment of dues by reason of aggregate settlement is interdependent if the defendant’s acceptance undue hardship arising from disability, sickness or financial condition. of the settlement is contingent upon the acceptance by a specified The application shall be copied to the Governors from the district in number or percentage of the claimants or specified dollar amount of which the attorney lives, who may or may not recommend in writing claims; or the value of each claim is not based solely on individual to the President that such relief be granted, giving the reasons there- case-by-case facts and negotiations. In such situations potential con- for. Thereupon the President shall have the authority to rule on the flicts of interest stemming from interdependency exist, thus posing a application and to notify the Treasurer by written order that the attor- risk of unfairness to individual claimants. ney is relieved of the payment of dues. The President shall file the order with the registrar along with the recommendation(s) of the Gov- When the terms of an aggregate settlement do not determine ernor(s). individual amounts to be distributed to each client, detailed disclo- sures are required. For example, if a lump sum is offered in an aggre- VII. SCR 3.050 Collection of dues; suspension for non-payment gate settlement and the claimants’ attorney is involved in dividing the settlement sum, that attorney must disclose to each client the number SCR 3.050 shall read: of his or her clients participating, specifics of each client’s claim rele- vant to the settlement, and the method of dividing the lump sum. In If dues are not paid on or before September 1, then an additional addition, the attorney must disclose the total attorney fees and costs late payment fee of fifty dollars ($50.00) shall be assessed. On or to be paid, payments to be made other than to clients, to their attor- before September 15 of each year, the Treasurer shall notify a member neys and for costs, the method by which the costs are to be appor- in writing of his or her delinquency and late fee. On or before October tioned among the clients and ultimately the amount each client 15 of each year, the Treasurer shall in writing certify to the Board the receives. names of all members who remain delinquent. The Board shall cause to be sent to the member a notice of delinquency by certified mail, By contrast, if the terms of the aggregate settlement establish return receipt requested, at the member’s bar roster address. Such the method of calculating and distributing payments to each notice shall require the member to show cause within thirty (30) days claimant, based upon the individual claim for liability and/or dam- from the date of the mailing why the member’s law license should not ages, the disclosures to each client represented by the same attor- be suspended for failure to pay dues and the late fee. In addition, such ney do not need to be as detailed. In that instance, each client notice shall inform the member that if such dues and late fee, as well should be generally informed of the terms of the aggregate settle- as costs in the amount of fifty ($50.00), are not paid within thirty (30) ment offer, how such terms apply specifically to such client, the fact days, or unless good cause is shown within thirty (30) days that a sus- that the attorney represents multiple clients in the settlement and, if pension should not occur, the lawyer will be stricken from the mem- applicable, any contingency in the settlement requiring a percentage bership roster as an active member of the KBA and suspended from of claimants to accept the settlement. The claimants’ attorney must the practice of law. At the conclusion of the thirty (30) days, unless the also disclose fees and costs to each client (including how costs are dues, late fees and additional costs payment have been received, or apportioned among the joint clients) but attorney fees may be stated unless good cause has been shown as to why the member should not as a percentage of the total recovery as opposed to a specific dollar be suspended, the Board of Governors will vote to suspend any such amount.

38 Bench & Bar January 2012 IX. SCR 3.130(1.19) Dissolution of law firm (8) The Commission shall act upon advertisements, or issue adviso- ry opinions in panels of three (3) persons. A quorum to act upon an New rule SCR 3.130(1.19) shall read: advertisement shall consist of not fewer than two (2) members of a panel. A quorum to do business in meetings of the entire Commission Upon dissolution of a law firm or of any legal professional corpora- shall consist of not fewer than five of its members in attendance. tion, the partners shall make reasonable arrangements for the mainte- nance of client trust account. (9) Nothing in these rules shall be construed as creating any cause of action for any party or right of suit against any member of the Com- X. SCR 3.130(1.20) Sale of law practice mission. The Kentucky Bar Association, the Board of Governors, the Attorneys’ Advertising Commission, the Executive Director of the Asso- New rule SCR 3.130(1.20) shall read: ciation, the Office of Bar Counsel, all of their officers, members, employees or agents shall be immune from civil liability for all acts in Upon the sale of a law practice, the seller shall make reasonable the course of their official duties in regulating lawyer advertising. arrangements for the maintenance of client trust account records. XIII. SCR 3.130(7.05) Filing of advertisements XI. SCR 3.130(5.5) Unauthorized practice of law; multijurisdictional practice of law Subsection (b) of section (1), section (2) and new section (4) of SCR 3.130(7.05) shall read: Subsection (1) of section (c) of SCR 3.130 (5.5) shall read: (1)(b) If the advertisement contains only those items listed in SCR (c)(1) comply with SCR 3.030(2), or they do not require compliance 3.130(7.05)(1)(a), or in AAC Regulation 2, the lawyer shall mail or deliv- with SCR 3.030(2) due to federal statute, rule or regulation; or er to the Commission, c/o the Director of the Kentucky Bar Association, three (3) copies of the advertisement, or electronically transmit the XII. SCR 3.130(7.03) Attorneys’ Advertising Commission advertisement via facsimile or email in PDF (Portable Document Format) to the Attorneys’ Advertising Commission address Sections (4) and (5), sub-sections (a), (b), (c), (d) and (e) to section (6) [email protected]. If the advertisement is to be published and sections (7), (8) and new section (9) of SCR 3.130(7.03) shall read: by broadcast media, including radio or television, a fair and accurate representation of the advertisement plus three (3) copies of a typed (4) The Board shall appoint a Chair from among the Commission transcript of the words spoken shall be submitted. Any such advertise- members. The term shall be one (1) year; however, the Chair may serve ment is exempt from a fee for submission. Submission under this sub- more than one (1) term. section shall occur no later than the publication of the advertisement.

(5) The Commission shall be provided with sufficient administrative (2) If the advertisement does not qualify under SCR 3.130(7.05)(1) for assistance from the Director as from time to time may be required. submission without a fee, the lawyer shall mail or deliver to the Commis- sion, c/o the Director of the Kentucky Bar Association, three (3) copies of (6) The Commission shall have general responsibilities for the the advertisement. If the advertisement is to be published by broadcast implementation of this Rule. In discharging its responsibilities the Com- media, including radio or television, a fair and accurate representation of mission shall have authority to: the advertisement plus three (3) copies of a typed transcript of the words spoken shall be submitted. Website advertisements that do not qualify for (a) Issue and promulgate regulations and such forms as may be submission without a fee must be submitted in electronic format on a necessary, subject to prior approval by the Board. Each member of the data disc in PDF (Portable Document Format), or other such data storage Association shall be given at least sixty (60) days advance notice of media as the Commission may designate by regulation. Three (3) copies any proposed regulations and an opportunity to comment thereon. of the data disc should be mailed or delivered to the Commission, c/o the Notice may be given by publication in the journal of the Kentucky Bar Director of the Kentucky Bar Association. A filing fee of seventy five-dol- Association. lars ($75.00) for each advertisement filed under this subsection shall accompany each submission. Submission under this subsection shall (b) Report to the Board at its last meeting preceding the Annual occur no later than the publication of the advertisement. An additional Convention of the Association, and otherwise as required, on the status administrative fee of one hundred dollars ($100.00) may be imposed for of advertising with such recommendations or forms as advisable. late submissions. Additionally, advertisements of more than 100 pages, or longer than 10 minutes of video or audio, will require a supplemental fee (c) Delegate to an employee of the KBA designated by the Director of one hundred dollars ($100.00). The same fees are required if an advi- of the Kentucky Bar Association the authority to review advertisements sory opinion has been sought under SCR 3.130(7.06)(1). on its behalf. (4) The lawyer shall retain a copy or recording of all advertisements (d) Review advertisements, issue advisory opinions concerning the utilized by the lawyer, as well as a record of when and where it was used, compliance of an advertisement with the Advertising Rules and for two (2) years after its last dissemination. Electronic retention is permit- Advertising Regulations, conduct such proceedings or investigations ted if in PDF format, or such other formats as the Commission may desig- as it deems necessary, or delegate this authority to a Commission nate by regulation. In the event of the pendency of any disciplinary action member or a hearing officer who shall proceed in the name of the before the Inquiry Commission, Board of Governors or Court, the lawyer Commission. shall continue to retain a copy until the termination of that proceeding.

(e) Seek out violations of the Advertising Rules and the Advertising XIV. SCR 3.130(7.09) Direct contact with potential clients Regulations, resolve the violations under Rule 7.06(4), or refer viola- tions to the Inquiry Commission. Referral to the Inquiry Commission Subsections (a), (b) and new subsection (c) of section (1) of SCR may be by any panel or by a majority of a quorum of the entire Com- 3.130(7.09) and the Supreme Court Commentary of SCR 3.130(7.09) mission. shall read:

(7) The Commission shall prepare a budget for the succeeding year (1) No lawyer shall directly or through another person, by in person, and shall submit same to the Board of Governors for inclusion with the live telephone, or real-time electronic means, initiate contact or solicit budget of the Association. professional employment from a potential client unless:

January 2012 Bench & Bar 39 (a) the lawyer has an immediate family relationship with the poten- (f) As provided in SCR 3.166(2), a lawyer prosecuting a case against tial client; any member of the Association to a plea of guilty, conviction by judge or jury or entry of judgment, should immediately notify Bar Counsel of (b) the lawyer has a current attorney-client relationship with the such event. potential client; or XVI. SCR 3.166(2) Automatic suspension after conviction of a felony (c) the lawyer is advocating a public interest issue and is not signif- icantly motivated by the lawyer’s pecuniary gain. Section (2) of SCR 3.166 shall read:

This Rule shall not prohibit response to inquiries initiated by per- (2) The attorney prosecuting the case to a plea of guilty, conviction sons who may become potential clients at the time of any other inci- by judge or jury or entry of judgment, whichever occurs first, shall dental contact not designed or intended by the lawyer to solicit immediately notify Bar Counsel and the Clerk of the Supreme Court that employment. such plea, finding or entry of judgment has been made.

Supreme Court Commentary XVII. SCR 3.180 Investigations and trials to be prompt; subpoena power

(1) There is a potential for abuse inherent in direct in-person, live Section (3) and new section (4) of SCR 3.180 shall read: telephone or real-time electronic contact by a lawyer with a prospective client known to need legal services. These forms of contact between a (3) Upon application of Bar Counsel to the Inquiry Commission and lawyer and a prospective client subject the layperson to the private after a hearing of which Respondent is given at least five (5) days’ importuning of the trained advocate in a direct interpersonal encounter. notice, for good cause shown the Inquiry Commission may authorize The prospective client, who may already feel overwhelmed by the cir- the Director or the Disciplinary Clerk to issue a subpoena to a Respon- cumstances giving rise to the need for legal services, may find it diffi- dent, or any other person or legal entity, to produce to Bar Counsel any cult fully to evaluate all available alternatives with reasoned judgment evidence deemed by the Inquiry Commission to be material to the and appropriate self-interest in the face of the lawyer’s presence and investigation of a complaint and to testify regarding such production. insistence upon being retained immediately. The situation is fraught Such an application may be made in connection with complaints with the possibility of undue influence, intimidation, and over-reaching. against more than one Respondent if the complaints are based on the same or a related set of facts. The person or entity so subpoenaed will (2) Communications to prior clients are not prohibited if the lawyer not divulge, except to his/her own attorney, that such a subpoena has is required by the circumstances of the representation to communicate been served nor what evidence is sought or obtained. The Respondent with a prior client to advise the client of changes in the law that would may be present at the time the evidence or material is examined or result in additional legal work. obtained by Bar Counsel and will be furnished copies of all documents obtained, unless obtained from the Respondent. (3) The rule’s subsection (3) permits solicitations otherwise prohibit- ed by the rule where the solicitation is not significantly motivated by (4) If any witness refuses to testify concerning any matter for which the lawyer’s pecuniary gain, in compliance with In re Primus, 436 U.S. he or she may lawfully be interrogated, upon application of the Inquiry 412(1978); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978); and Commission to the Circuit Court of the county in which the witness NAACP v. Button, U.S. 415 (1963). There is far less likelihood that a resides, the Circuit Court may compel obedience by proceedings for lawyer would engage in abusive practices in situations in which the contempt as in the case of disobedience of a subpoenas issued from lawyer is motivated by considerations other than the lawyer’s pecuniary the Circuit Court. gain. Also, subsection (3) is not intended to prohibit a lawyer from par- ticipating in constitutionally protected activities of public or charitable XVIII. SCR 3.181 Assistance to other lawyer disciplinary jurisdictions legal service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or New rule SCR 3.181 shall read: recommending legal services to its members or beneficiaries. (1) Upon receipt by the Director of a subpoena certified to be duly (4) SCR 3.130(7.09)(5) permits a lawyer to participate with an issued under the rules or laws of another lawyer disciplinary jurisdic- organization that uses personal contact to solicit members for its group tion, or by a clients’ security fund of any jurisdiction, the Inquiry Com- or prepaid legal service plan, provided that personal contact is not mission may authorize the Director or Disciplinary Clerk to issue a sub- undertaken by any lawyer who would be a provider of legal services poena directing a person domiciled or found within the Commonwealth through the plan. The organization must not be owned by or directed of Kentucky to give testimony and/or produce documents or other (whether as manager or otherwise) by any lawyer or law firm that par- things for use in the other lawyer disciplinary or clients’ security fund ticipates in the plan. For example, paragraph (5) would not permit a proceedings as directed in the subpoena of the other jurisdiction. lawyer to create an organization controlled directly or indirectly by the lawyer and to use the organization for the in-person or telephone solici- (2) The testimony or production shall be only in the county wherein tation of legal employment of the lawyer through memberships in the the person resides or is employed, or as otherwise fixed by the Inquiry plan or otherwise. The communication permitted by these organizations Commission for good cause shown, and shall be taken as provided in also must not be directed to a person known to need legal services in a CR 28.01. particular matter, but should be designed to inform potential plan mem- bers generally of another means of affordable legal services. Lawyers (3) Any attack on the validity of a subpoena issued by another juris- who participate in a legal service plan must make reasonable efforts to diction may be heard and determined by the disciplinary authority of determine that the plan sponsors are in compliance with the Rules. the other state in accordance with the law of the issuing jurisdiction.

(5) Neither this rule nor SCR 3.130(7.20) prohibits communications (4) In addition to the relief available under the law of the requesting authorized by law, such as notice to members of a class in class action disciplinary jurisdiction or clients’ security fund, upon motion made by a litigation. party or by the person from whom appearance or production is sought, and for good cause shown, the Inquiry Commission may make any XV. SCR 3.130(8.3) Reporting professional misconduct order which justice requires to protect a party or person from annoy- ance, embarrassment, oppression, or undue burden or expense, includ- Section (f) of SCR 3.130(8.3) shall read: ing one or more of the following: (a) that the testimony or production

40 Bench & Bar January 2012 not be had; (b) that it may be had only on specified terms and condi- (2) The notice of appeal shall specify by name the appellant and the tions, including a designation of the time or place; (c) that it may be report appealed from. had only by a method other than that selected by the party seeking tes- timony or production; (d) that certain matters not be inquired into, or XXIV. SCR 3.390 Notice to client of suspension or disbarment that the scope of the subpoena be limited to certain matters; (e) that the testimony be taken with no one present except persons designated SCR 3.390 shall read: by the Inquiry Commission; (f) that testimony may be sealed to be opened only by order of the original issuing jurisdiction; (g) that a trade (a) Any order suspending a lawyer from the practice of law, other secret or other confidential research, development, or commercial infor- than an order of suspension under SCR 3.165 or 3.166, shall take mation not be disclosed or be disclosed only in a designated way; (h) effect on the tenth (10th) day following its entry unless otherwise pro- that the parties simultaneously file specified documents or information vided within the order. The suspended lawyer shall promptly take all enclosed in sealed envelopes to be opened as directed by the original reasonable steps to protect the interests of the lawyer’s clients. A issuing jurisdiction. lawyer suspended from the practice of law shall not during the term of suspension accept new clients or collect unearned fees, and shall com- XIX. SCR 3.185 Informal admonition procedure ply with the provisions of SCR 3.130-7.50(5).

SCR 3.185 shall read: (b) Within ten (10) days after the issuance of an order of disbar- ment, or suspension under SCR 3.050 or SCR 3.669(4), or upon After a complaint against an attorney for unprofessional conduct is issuance of an order of suspension from the practice of law for more investigated and a response filed, the Inquiry Commission may direct a than sixty (60) days, the disbarred or suspended lawyer shall notify, private admonition, with or without conditions, to the attorney if the by letter duly placed with the United States Postal Service, all courts acts or course of conduct complained of are shown not to warrant a or other tribunals in which that lawyer has matters pending, and all greater degree of discipline. The attorney so admonished may, within clients of the lawyer’s inability to represent them and of the necessity twenty (20) days from the date of the admonition, reject such admoni- and urgency of promptly retaining new counsel. The lawyer shall tion and request that a charge be issued and filed as is provided by simultaneously provide a copy of all such letters of notification to the Rule 3.190; whereupon, the issues shall be processed under the appli- Office of Bar Counsel. Upon issuance of an order of disbarment or cable rules. The Inquiry Commission may also issue a warning or a suspension, the affected lawyer shall immediately cancel any pending conditional dismissal letter including, but not limited to, conditions such advertisements, to the extent possible, and shall terminate any adver- as referral to KYLAP, or attendance at a remedial ethics program or tising activity for the duration of the term of suspension or disbar- related classes as directed by the Office of Bar Counsel. ment.

XX. SCR 3.225 Appointment of Trial Commission XXV. SCR 3.450 Recovery of Appropriate Costs

SCR 3.225 shall read: SCR 3.450 shall read:

The Chief Justice shall appoint, subject to the approval of the In any case to be submitted to the Court, the Disciplinary Clerk shall Supreme Court, from among the membership of the Bar Association, a file with the Court the entire record of the proceedings together with a Trial Commission and shall designate a chair from the Commission. certified bill of costs, which shall include the expenses incurred by the Members of the Trial Commission shall be lawyers licensed in the Com- Kentucky Bar Association in connection with the investigation and pros- monwealth who possess the qualifications of a Circuit Judge. To the ecution of the matter, including the expenses associated with the trial extent practicable, the Chief Justice shall, with the consent of the commissioner’s hearing. Court, appoint Trial Commissioners from each appellate district. Such Trial Commissioners shall be authorized to serve terms of two (2) years. Every final order of the Board or the Court which adjudges the Respondent guilty of unprofessional conduct shall provide for the recov- XXI. SCR 3.260 Joinder and consolidation ery of appropriate costs. Immediately upon the effective date of the order, the Clerk shall furnish a bill for said costs to the Respondent. If New sections (3) and (4) of SCR 3.260 shall read: the bill is not satisfied within ten (10) days thereafter, the Clerk shall notify the Director of the Association. (3) Charges against two or more attorneys may be consolidated by order of the Inquiry Commission for limited purposes including, but not XXVI. SCR 3.500 Restoration to membership limited to, preservation of testimony, out of state depositions, or docu- ment production pursuant to subpoena. SCR 3.500 shall read:

(4) Any party may file a motion with the Inquiry Commission to (1) A former member who has withdrawn from membership pur- sever separate charges against any attorney as provided in subsection suant to SCR 3.480(1), or who was suspended for failure to pay dues (1), or to sever charges against two or more attorneys as provided in as provided by SCR 3.050, or for failure to comply with the continuing subsection (2) or (3). However, the filing of such motions shall not delay legal education requirements of SCR 3.661 may be restored to mem- the evidentiary hearing or the Board’s consideration of the case. bership upon compliance with the conditions set forth in this rule. No application for restoration shall be effective until entry of an order of XXII. SCR 3.360 Trial Commissioner to file report with Disciplinary Clerk restoration by the Board of Governors or the Court, as provided herein. Until the entry of such an order, the suspension or withdrawal from New section (6) of SCR 3.360 shall read: membership remains in force.

(6) Upon the finality of the report of the Trial Commissioner, the Dis- (2) A former member whose withdrawal or suspension from mem- ciplinary Clerk shall certify the record of the proceedings and send bership has prevailed for less than five (5) years may apply for restora- notice of certification to the parties. tion by:

XXIII. SCR 3.365 Notice of appeal (a) Submitting an application for restoration using the forms provid- ed by the Director, with a fee of three hundred fifty dollars ($350.00) Section (2) of SCR 3.365 shall read: and all applicable unpaid Bar Association dues; and

January 2012 Bench & Bar 41 (b) Submitting with the application a certificate from the Office of Bar for its review. The Applicant and the KBA may file briefs and an oral argu- Counsel that the former member has no pending disciplinary matters; and ment may be held upon the request of either party. If, after its considera- tion, the Board concurs in the disapproval of the application, its findings (c) Submitting with the application a certificate from the Director of and recommendation shall be filed with the Disciplinary Clerk, and the Continuing Legal Education pursuant to SCR 3.675. record shall be sent to the Clerk of the Supreme Court. Upon receipt of the record, the Clerk of the Supreme Court shall send notice of the filing (d) Upon the filing of the foregoing items, the Office of Bar Counsel by certified mail, return receipt requested, to the Applicant’s bar roster shall present the matter to the Board at its next meeting. Within thirty (30) address. Within twenty (20) days, the Applicant may petition the Court for days of its review of the complete application materials, the Board may review of the action of the Board. If the Court reverses the Board’s disap- restore the applicant to membership or refer the matter to the Character proval of the application, it shall refer the matter to the Board of Bar and Fitness Committee of the Kentucky Office of Bar Admissions for pro- Examiners for the procedure set forth above in paragraph 3(e). ceedings pursuant to SCR 2.040 and SCR 2.011, and subsequent review by the Supreme Court. If the matter is referred to the Character and Fit- (4) All costs incurred in excess of the filing fee shall be paid by the ness Committee, the applicant shall pay a fee of two hundred fifty dollars Applicant. Upon referral to the Character and Fitness Committee, a cash ($250.00) to the Kentucky Office of Bar Admissions. Upon completion of its or corporate surety bond in the amount of two thousand five hundred review, the Character and Fitness Committee shall submit its recommen- dollars ($2500.00) to secure the costs to be incurred shall be paid to dation to the Board for its action and recommendation to the Court. the Office of Bar Admissions by the Applicant.

(3) A former member whose withdrawal or suspension from member- (5) The burden of proof for establishing the Applicant’s present ship has prevailed for five (5) years or longer may apply for restoration by: qualifications to practice law in Kentucky is on the Applicant.

(a) Submitting an application for restoration using the forms provid- (6) If the Character and Fitness Committee or the Board of Gover- ed by the Director, with a fee of seven hundred fifty dollars ($750.00) nors recommends restoration of membership on conditions as provided and all applicable unpaid Bar Association dues; and in SCR 2.042, such conditions may be imposed by the Board, for appli- cation processed by it under subsection (2)(d) of this rule, or by the (b) Submitting with the application a certificate from the Office of Court in any order of restoration. Bar Counsel that the former member has no pending disciplinary mat- ters; and XXVII. SCR 3.600 Continuing Legal Education Definitions

(c) Submitting with the application a certificate from the Director of SCR 3.600 shall read: Continuing Legal Education pursuant to SCR 3.675. As used in SCR 3.610-3.690, the following definitions shall apply (d) Upon the filing of the foregoing items, the Director shall refer the unless the context clearly requires a different meaning: application to the Character and Fitness Committee of the Kentucky Office of Bar Admissions for proceedings pursuant to SCR 2.040 and SCR “Approved activity” is a continuing legal education activity that has 2.011. An additional fee of five hundred dollars ($500.00) shall be paid to been approved for credit by the CLE Commission. the Kentucky Office of Bar Admissions. Upon completion of its review, the Character and Fitness Committee shall submit its recommendation to the “Attorney Identification Number” is the five (5) digit number Board of Governors for its action and recommendation to the Court. assigned to each member of the Association upon admission.

(e) If the Character and Fitness Committee recommends approval of “Award” is the Continuing Legal Education Award. the application and the Board concurs, the application shall be referred to the Board of Bar Examiners of the Kentucky Office of Bar Admis- “Commission” is the Continuing Legal Education Commission. sions, for the administration of a written examination which includes the subject of professional ethics and five (5) of the subjects listed in “Continuing legal education,” or “CLE,” is any legal educational SCR 2.080(1). A general average score of 75% or higher shall be activity or program which is designed to maintain or improve the pro- deemed a passing score. Fees required by SCR 2.022, and SCR 2.023 fessional competency of the practicing attorneys and is accredited by shall be paid prior to taking the examination. As an alternative and upon the Commission. referral from the Board of Governors, if the Applicant has practiced in a reciprocal jurisdiction after withdrawal pursuant to SCR 3.480 and “Credit” is a unit for measuring continuing legal education activity. meets all requirements of SCR 2.110, the Applicant may elect to have the Character and Fitness Committee consider an application for “Educational year” is the reporting period for mandatory continuing admission without examination under SCR 2.110. All fees required by legal education and runs from July 1st each year through June 30th of that rule shall be paid prior to the processing of the application. the successive year.

If the Applicant passes the examination or is approved for admis- “Ethics, professional responsibility and professionalism” is the cate- sion without examination, such fact shall be certified to the Court and gory by which “ethics credits” shall be earned and includes, but is not to the Director, together with a recommendation for the Applicant’s limited to programs or seminars or designated portions thereof with restoration to membership. Upon this certification, the Disciplinary Clerk instruction focusing on the Rules of Professional Conduct independently shall transmit the record to the Court for its consideration of the appli- or as they relate to law firm management, malpractice avoidance, cation for restoration. If the applicant fails the examination, the Board of attorneys fees, legal ethics, and the duties of attorneys to the judicial Bar Examiners shall certify the fact of the failure to the Court and the system, the public, clients and other attorneys. Director. Upon that certification, the Disciplinary Clerk shall transmit the record to the Court for entry of an order denying restoration. “In-house activity” is an activity sponsored by a single law firm, sin- gle corporate law department, or single governmental office for lawyers The provisions of SCR 2.015, SCR 2.080, and SCR 2.110 shall apply who are members or employees of the firm, department or office. where not inconsistent with these provisions. “Legal writing” is a publication which contributes to the legal compe- (f) If the Character and Fitness Committee recommends disapproval tency of the applicant, other attorneys or judges and is approved by the of the application, the matter shall be referred to the Board of Governors Commission. Writing for which the author is paid shall not be approved.

42 Bench & Bar January 2012 “Non-compliance” means not meeting continuing legal education (6) Promulgate rules and regulations for the administration of the requirements set forth in Rule 3.661 and Rule 3.652 and includes both mandatory continuing legal education program subject to approval of lack of certification and lack of completion of activities prior to estab- the Board and the Court. lished time requirements. (7) Report annually, on or before September 15, and as otherwise “Technological transmission” is a CLE activity delivery method other required, to the Board and the Court on the status of continuing legal than live seminars and includes video tape, DVD, audio tape, CD-ROM, education in the Commonwealth. Such report shall include recommend- computer on-line services, or other appropriate technology as approved ed changes to these rules and regulations and their implementation. by the Commission. XXXIII.SCR 3.651 Kentucky Law Update Seminars in Each Appellate XXVIII.SCR 3.620 Selection and tenure of the commission, filling District vacancies on the commission SCR 3.651 shall read: SCR 3.620 shall read: (1) Each educational year, the Commission shall conduct a twelve and The Court shall appoint all members of the Commission from a list one-half (12.5) credit continuing legal education seminar in each consisting of three times the number to be appointed submitted to the Supreme Court District. Subjects taught at each seminar shall include the Court by the Board. A chairman shall be designated by the Court for latest Kentucky Supreme Court and Court of Appeals decisions, procedur- such time as the Court may direct. Of the members first appointed, al rule changes, Federal Court decisions, legal ethics, professional three shall be appointed for one year, two for two years and two for responsibility and professionalism, Kentucky statutory changes and other three years. Thereafter, appointments shall be made for a three-year subjects relating to improvements in basic legal skills. Each program term. Members may be reappointed but no member shall serve more shall include a minimum of two (2.0) credits for subjects specifically than two successive three-year terms. Each member shall serve until a addressing legal ethics, professional responsibility and professionalism. successor is appointed and qualified. Vacancies occurring through death, disability, inability or disqualification to serve or by resignation (2) Registration for the Kentucky Law Update seminars shall be free shall be filled for the vacant term in the same manner as initial appoint- to all members in good standing of the Association. ments are made by the Court. Members of the Commission shall serve without compensation but shall be paid their reasonable and necessary (3) Members may attend Kentucky Law Update seminars in any expenses incurred in the performance of their duties. The Association location. The maximum credit that may be earned for attending any one shall have the responsibility of funding the Commission and any neces- (1) Kentucky Law Update seminar is twelve (12.5) credits. However, if sary staff who shall be employees of the Association. different tracks of programs are attended at different locations, addi- tional credit may be approved by the Commission. Pursuant to Rule XXIX. SCR 3.630 Commission member’s qualifications 3.664 (1) duplicate credits shall not be earned by attending the same program at a different location. SCR 3.630 shall read: XXXIV.SCR 3.652 New Lawyer Program Each Commission member must be a citizen of the United States, licensed to practice law in the courts of this Commonwealth and have SCR 3.652 shall read: been a resident in the appellate district from which nominated for two years immediately preceding the appointment. (1) At least twice each educational year, the Commission shall pro- vide or cause to be provided a New Lawyer Program of not less than XXX. SCR 3.635 Commission quorum twelve and one-half (12.5) credits. The Commission may in its discre- tion, accredit a New Lawyer Program proposed by other CLE providers. SCR 3.635 shall read: (2) Continuing legal education credits for the New Lawyer Program A quorum consisting of at least four (4) Commission members is shall be awarded in a number consistent with the award of credits for required for conducting the business of the Commission. other continuing legal education programs.

XXXI. SCR 3.640 Commission staff (3) The New Lawyer Program shall include at least two (2) hours of ethics, a course on law practice management and other subjects deter- SCR 3.640 shall read: mined appropriate by the Commission.

The Commission shall be provided with a Director for Continuing (4) The Commission or other provider accredited under SCR Legal Education and sufficient administrative and secretarial assistants 3.652(1) may charge a reasonable registration fee approved by the as are from time to time required. Selection and qualifications of the Court for the New Lawyer Program. Director for Continuing Legal Education shall be determined by the Board except that the person selected shall be an attorney licensed to (5) Within twelve (12) months following the date of admission as set practice law in the courts of this Commonwealth. The Director for Con- forth on the certificate of admission, each person admitted to member- tinuing Legal Education shall be responsible to the Commission for the ship to the Association shall complete the New Lawyer Program. proper administration of the rules applying to the Commission and any regulations issued by the Commission. (6) Each individual attending the New Lawyer Program shall certify to the Director the completion of the Program on the attendance certifi- XXXII. SCR 3.650 Commission duties cate provided for that purpose. Such certification shall be submitted to the Director upon completion of the program and in no case shall the Sections (2), (6) and (7) of SCR 3.650 shall read: certification be submitted later than thirty (30) days after completion of the program. Continuing legal education credits awarded for the pro- (2) Conduct, sponsor, or otherwise provide high quality continuing gram shall be applied to the educational year in which the program is legal education, specifically including, but not limited to, one (1) twelve attended, and if applied to a year in which the individual so attending is and one-half (12.5) credit seminar in each Supreme Court District each otherwise exempt from CLE requirements under SCR 3.666(1)(b), then year. said credits shall carry forward in accordance with SCR 3.661(5) and (6).

January 2012 Bench & Bar 43 (7) Members required to complete the New Lawyer Program pur- shall be submitted to the Director by the sponsor of the accredited suant to paragraph (5) of this Rule may, upon application to and activity or by individual attorneys. Sponsors submitting certifications to approval by the Commission, be exempted from the requirement if the the Director shall comply with all requirements set forth in SCR member is admitted to practice in another jurisdiction for a minimum of 3.665(6). five (5) years, and will certify such prior admission to the Commission, or if the member has attended a mandatory new lawyer training pro- (3) Programs or seminars or designated portions thereof devoted to gram of at least twelve and one-half (12.5) credits, including two (2) legal ethics, professional responsibility or professionalism include but ethics credits, offered by the state bar association of another jurisdic- are not limited to programs or seminars, or designated portions thereof, tion and approved by the Director. with instruction focusing on the Rules of Professional Conduct inde- pendently or as they relate to law firm management, malpractice avoid- (8) The time for completion and certification set forth in para- ance, attorneys fees, legal ethics, and the duties of attorneys to the graphs (5) and (6) of this Rule may, upon written application to and judicial system, the public, clients and other attorneys. approval by the Commission or its designee, be extended. Written applications for an extension under this paragraph must be received (4) Integration of legal ethics, professional responsibility or profes- by the Commission no later than thirty (30) days after the member’s sionalism issues into substantive law topics is encouraged, but shall deadline to complete the Program as set forth in paragraph (5) of this not count toward the two (2) credit minimum annual requirement. Rule. All applications must be signed by the member. The Commission may approve extensions for completing the Program under the follow- (5) A member who accumulates an excess over the twelve and ing circumstances: one-half (12.5) credit requirement may carry forward the excess credits into the two successive educational years for the purpose of satisfying (a) Where the member demonstrates hardship or other good cause the minimum requirement for those years. Carry-forward credits are clearly warranting relief. Requests for relief under this subsection must limited to a total of twenty-five (25) credits. All excess credits above a set forth all circumstances upon which the request is based, including total of twenty-five (25) credits will remain on the member’s records supporting documentation. In these circumstances, the member shall but may not be carried forward. complete the requirement set forth in paragraphs (5) and (6) as soon as reasonably practicable as determined by the Commission or its (6) Carry-forward credits shall be allowed to satisfy the two (2) designee; or credit annual requirement for continuing legal education addressing the topics of legal ethics, professional responsibility and professionalism, (b) Where the member fails to demonstrate hardship or other good and may be carried forward into the two years immediately succeeding cause clearly warranting relief, the member must pay a fee of two hun- the year in which the hours were earned. Carry-forward credits for dred fifty dollars ($250.00) and complete the requirement set forth in ethics, professional responsibility and professionalism are limited to a paragraphs (5) and (6) at the next regularly scheduled New Lawyer Pro- total of four (4) credits. gram. (7) Certification may be submitted by sponsors or by individuals on (9) Failure to complete and certify attendance for the New Lawyer approved Association forms, uniform certificates, or any other format Program pursuant to paragraphs (5), (6), or (8) of this Rule shall be adopted by the Commission. grounds for suspension from the practice of law in the Commonwealth or other sanctions as deemed appropriate by the Court. Ninety (90) (8) Compliance and certification requirements concerning the New days prior to the end of the twelve (12) month period all individuals not Lawyer Program are set forth at SCR 3.652(5) and (6). certifying completion of the New Lawyer Program pursuant to para- graphs (5), (6) or (8) shall be notified in writing that the program must XXXVI.SCR 3.662 Qualifying continuing legal education activity standards be completed before the end of the twelve (12) month period, indicating and credit limits the date. Names of all individuals not submitting certification of com- pletion of the New Lawyer Program within the twelve (12) month period Subsections (b), (j), (k) and (l) of section (1), subsections (b), (c), and (h) or not being granted an extension of time, pursuant to paragraph (8) of of section (2), and subsections (a), (b), (c), (d) and new (e) of section (3) this Rule, shall be submitted to the Court by the Director, certifying the of SCR 3.662 shall read: member’s failure to comply with the New Lawyer Program requirement. The Clerk shall docket the matter and the Court shall issue each such (1)(b) The activity deals primarily with substantive legal issues member a rule returnable within twenty (20) days thereafter to show directly related to the practice of law, or practice management and cause why the member should not be suspended from the practice of includes consideration of any related issues of ethics, professional law or otherwise sanctioned as deemed appropriate by the Court. The responsibility, or professionalism. Commission shall be permitted to file a reply within ten (10) days fol- lowing the filing of a response by a member. Unless good cause is (j) The activity may be presented live or by technological transmis- shown by the return date of the rule, or within such additional time as sion as defined in Rule 3.600. If presented by technological transmis- may be allowed by the Court, an Order shall be entered suspending sion, the transmission must be produced from an activity submitted and respondent from the practice of law or imposing such other sanctions approved by the Commission pursuant to SCR 3.665. Activities includ- as may be deemed appropriate by the Court. An attested copy of the ing audio components must have high quality audio reproductions so Order shall forthwith be delivered by the Clerk to the member, the that listeners may easily hear the content of the activity. Activities Director, and in the case of suspension, to the Circuit Clerk of the dis- including video components must have high quality video reproductions trict wherein the member resides for recording and indexing as so that observers may easily view the content of the activity. If activities required by Rule 3.480. are presented by technological transmission and an attorney facilitator is available for purposes of answering questions and leading discus- XXXV. SCR 3.661 Continuing legal education requirements: compliance sions, that activity is considered a live seminar. and certification (k) In cases of in-house activity, as defined in SCR 3.600, such Sections (2), (3), (4), (5), (6) (7) and (8) of SCR 3.661 shall read: activities may be approved if all standards set forth herein for accredi- tation are met. A maximum of six (6.0) credits per educational year (2) Certification of completion of approved CLE activities must be earned at in-house activities may be applied to meet the annual twelve received by the Director no later than August 10th immediately follow- and one-half (12.5) credit requirement. The following additional require- ing the educational year in which the activity is completed. Certification ments must also be met for accreditation of in-house activities:

44 Bench & Bar January 2012 (i) At least half the instruction hours must be provided by qualified services in unique areas of practice. Credits earned for this category of persons having no continuing relationship or employment with the seminar or activity shall not count toward the twelve and one-half (12.5) sponsoring firm, department or agency. For technologically transmitted credit annual minimum requirement but may count toward continuing activities, the activities must meet all standards for qualifying continu- legal education award credits as determined by the Commission. ing legal education activities as set forth in SCR 3.662 and must be included as part of the application as set forth at SCR 3.662(1)(k). XXXVII.SCR 3.663 Calculation and reporting of continuing legal education credits: formulas and limits (ii) Members of the Court, the Commission or a Commission designee may attend or participate in any such program to observe Section (1), subsections (a) and (b) of section (3), sections (5) and (9) of compliance without payment of registration or other fees. SCR 3.663 shall read:

(l) In cases of law school classes attended by members, the mem- (1) Members completing or participating in the course of study of ber may receive continuing legal education credit provided the follow- an approved activity will be granted one (1) credit for each sixty (60) ing requirements are met: minutes of actual instructional time. Instructional time shall not include introductory remarks, breaks, or business meetings held in conjunction (i) The member registers for the class with the law school. with a continuing legal education activity. For activities involving tech- nologically transmitted programming, actual instructional time may be (ii) The member completes the course as required by the terms deemed inappropriate for assigning credit hours. In such circumstances of registration, for credit or by audit. credits claimed will be limited by the total assigned by the Commission. The Commission’s assignment of credit hours for such activities will (iii) Credit is calculated pursuant to Rule 3.663. include consideration of the sponsor’s estimates of average completion time, volume of material, opportunities for interaction, duration of pro- (2) The following categories of activities shall not qualify as a con- gram and other factors as deemed appropriate. No additional credit is tinuing legal education activity: given for completing or participating in duplicate activities at different times or locations. Duplicate completion of or participation in any (b) In-house activities for which less than half the instruction is provid- course of study of any accredited activity shall not result in duplicate ed by qualified persons outside the firm, department or agency, and for continuing legal education credits awarded. Continuing legal education which members of the Court, the Commission or Commission designee credit shall be claimed on forms provided by the Association, or any are prohibited from observing for compliance without charge of fees. uniform certificate adopted by the Association, and shall be forwarded to the Director. (c) Seminars or meetings sponsored by law firms or other organiza- tions which are determined by the Commission to be in the nature of (3) Members may be granted preparation credit as follows: client development. (a) One (1) credit for each two (2) hours spent in preparation for (h) Any activity completed prior to admission to practice in Kentucky teaching or participating as a panel member or seminar leader in an except the program required pursuant to SCR 3.661(8) and 3.652(5). approved activity, up to a maximum of twelve and one-half (12.5) cred- its per educational year. (3)(a) Teaching or participating as a panel member or seminar leader in an approved activity. No credit may be earned for teaching or (b) One (1) credit for each two (2) hours spent researching, writing participating as a panel member or seminar leader for activities that do or editing material presented by another member at an approved con- not meet standards set forth in Rule 3.662. A maximum of twelve and tinuing legal education activity, up to a maximum of twelve and one- one-half (12.5) credits earned under this Rule per educational year may half (12.5) credits per educational year. be applied to meet the annual minimum requirement. (5) Members may earn credits for publication of legal writing up to (b) Researching, writing or editing material to be presented at an a maximum of six (6.0) credits per year. One (1) credit is granted for approved activity. No credit may be earned for researching, writing, or each two (2) hours of actual preparation time including research, writ- editing materials for activities that do not meet the standards set forth ing, and editing. Any excess credits will be applied toward the award in Rule 3.662. A maximum of twelve and one-half (12.5) credits earned established in Rule 3.680. The Commission may grant up to twenty (20) under this Rule per educational year may be applied to meet the annual credit hours for published legal writing toward the award, but may only minimum requirement. grant up to six (6.0) credits to meet the annual minimum requirement. Applications for continuing legal education credit for a published legal (c) Publication of legal writing. A legal writing is a publication which writing shall be made on forms provided by the Association and shall contributes to the legal competency of the applicant, other attorneys or be accompanied by a copy of the published legal writing for which judges and is approved by the Commission. Writing for which the credit is sought. Said application shall be forwarded to the Director. author is paid shall not be approved. A maximum of six (6.0) credits earned under this Rule per educational year may be applied to meet the (9) The Commission shall grant a maximum of two (2.0) credits to annual minimum requirement. meet the annual minimum requirement for public speaking credit earned pursuant to SCR 3.662(3)(d). (d) Public speaking. Upon application, by teaching or participating as a panel member, mock trial coach or seminar leader for law-related XXXVIII. SCR 3.665 Procedure for accreditation of continuing legal public service speeches to civic organizations or school groups. A education activities and obligations of sponsors maximum of two (2.0) credits earned under this Rule per educational year may be applied to meet the annual minimum requirement. Speak- Sections (4) and subsections (d) and (e) of section (6) of SCR 3.665 ing for which the member is paid shall not be approved. Written copies shall read: of presentations must accompany such applications; provided, howev- er, that, where appropriate, a narrative summary of the material pre- (4) Activity sponsors which apply for accreditation and receive sented may be sufficient. approval prior to the activity may announce in advertising materials, “This activity has been approved by the Kentucky Bar Association Con- (e) Seminars designed for non-lawyer professionals which in, case- tinuing Legal Education Commission for a maximum of XX.XX credits, by-case situations, will benefit the lawyer by allowing clients improved including XX.XX ethics credits.” Sponsors who have made application

January 2012 Bench & Bar 45 for accreditation of activities that have not yet been approved may the plan lists activities which would provide, by the September 10th announce in advertising materials, “Application for approval of this immediately following the end of the educational year, the credit hours activity for a maximum of XX.XX credits, including XX.XX ethics credits, needed to make up the deficiency. Such plan shall be deemed accepted is PENDING before the Kentucky Bar Association Continuing Legal Edu- by the Commission unless within fifteen (15) days after receipt of the cation Commission.” Sponsors may not advertise accreditation if compliance plan and filing fee, the Commission notifies the applicant to accreditation has not been granted by the Commission and notice of the contrary. such accreditation received by the sponsor. XLI. SCR 3.668 Non-compliance, definition (6)(d) Provide to each Kentucky attorney completing an approved activity an Association approved credit reporting form and activity code. SCR 3.668 shall read: Credit reporting forms and activity numbers shall be made available to sponsors upon request from the Association for use at approved activi- (1) Delinquency of Certification. Any certification of continuing legal ties. education activity for an educational year (July 1-June 30) which is submitted after the August 10th immediately following the close of that (e) Collect credit reporting forms from Kentucky attorneys and sub- educational year, shall be deemed past due and in non-compliance. All mit to the Commission all forms received within thirty (30) days of past due reports shall be accompanied by a late filing fee of fifty dollars completion of the program. Failure to submit completed credit reporting ($50.00) per certificate or report to cover the administrative costs of forms within thirty (30) days of the activity shall be accompanied by a recording credits to the prior year. All past due reports for completion of late filing fee from the sponsor of ten dollars ($10.00) per form or cer- an activity in the immediately preceding educational year must be tificate. Submit all attendance forms or certificates for activities held received by the Commission with the late fee of fifty dollars ($50.00) during the month of June no later than July 10th, immediately following per certificate or report no later than the close of the current education- the end of the educational year on June 30th. For programs held during al year (June 30). Past due reports shall be accepted only until the end June this provision of the rule supersedes the thirty (30) day submis- of the educational year (June 30) immediately following the year during sion provided above. Failure to submit forms or certificates pursuant to which the activity is completed. This deadline (June 30) will not apply in this schedule will result in the sponsor’s obligation to pay a late filing instances where the member or former member is in the process of fee of ten dollars ($10.00) per form or certificate. removing an exemption per SCR 3.666(6) or attempting certification per SCR 3.675, but the late fee of fifty dollars ($50.00) per certificate or XXXIX. SCR 3.666 Exemptions and removal of exemptions report shall be applied if the report is received after the August 10th reporting deadline described above. Subsection (b) of section (1) and subsections (b) and (c) of section (2) of SCR 3.666 shall read: (2) Delinquency of Credits. Failure to acquire a minimum of twelve and one-half (12.5) credits to meet the minimum continuing legal edu- (1)(b) New lawyers who have been admitted less than one full cation requirements of Rule 3.661 and associated certification require- educational year as of the June 30th deadline. Such members ments shall be grounds for suspension by the Court from the practice shall be subject to the provisions of SCR 3.652. of law.

(2)(b) Members who practice law within the Commonwealth, but XLII. SCR 3.669 Non-compliance: procedure and sanctions demonstrate that meeting the requirements of Rule 3.661 would work an undue hardship by reason of disability, sickness, SCR 3.669 shall read: or other clearly mitigating circumstances. (1) As soon as practicable after August 20th of each year, the Com- (c) Members required to complete the New Lawyer Program fol- mission shall notify a member in writing of existing delinquencies of lowing procedures set forth in SCR 3.652(7). record. The writing may consist of a computer generated form setting forth said delinquency. If any statement incorrectly reflects the continu- XL. SCR 3.667 Extension of time requirements ing legal education status of the member it shall be the duty of the member to promptly notify the Commission of any claimed discrepancy Sections (1) and (2) of SCR 3.667 shall read: in the education statement.

(1) The time requirements associated with completion of continuing (2) If, by the first day of November immediately following, a mem- legal education and certification thereof, as set forth in Rule 3.661(1) ber has neither certified completion by the June 30th immediately prior, and (8), may be extended by the Commission in case of hardship or of the minimum continuing legal education requirements set forth in other good cause clearly warranting relief. Requests for time extensions Rule 3.661, nor applied for and satisfied the conditions of an extension for completion of activities or certification thereof shall be made to the under Rule 3.667 or exemption under Rule 3.666, the Commission shall Commission in writing. All requests for time extension must be received certify the name of that member to the Board. by the Commission no later than the September 10th following the end of the educational year for which the time extension is sought. (3) The Board shall cause to be sent to the member a notice of Requests must set forth all circumstances upon which the request is delinquency by certified mail, return receipt requested, at the member’s based, including supporting documentation. Applications for time exten- bar roster address. Such notice shall require the attorney to show sions for completion of the New Lawyer Program may be submitted cause within thirty (30) days from the date of the mailing why the attor- pursuant to SCR 3.652(8). ney’s license should not be suspended for failure to meet the mandato- ry minimum CLE requirements of SCR 3.661. Such response shall be in (2) A member who fails to complete the requirements of Rule 3.661 writing, sent to the attention of the Director for CLE, and shall be for any educational year, and who cannot show hardship or other good accompanied by costs in the amount of fifty dollars ($50.00) payable to cause clearly warranting relief, may submit a plan for making up his or the Kentucky Bar Association. her delinquency, provided that the Commission has not approved such a plan for the member for either of the two preceding educational (4) Unless good cause is shown by the return date of the rule, or years. The plan must be received by the Commission no later than the within such additional time as may be allowed by the Board, the lawyer September 10th immediately following the end of the educational year will be stricken from the membership roster as an active member of for which the time extension is sought. The plan will be approved only if the KBA and will be suspended from the practice of law or will be oth- the member pays a filing fee of two hundred fifty dollars ($250.00) and erwise sanctioned as deemed appropriate by the Board. A copy of the

46 Bench & Bar January 2012 suspension notice shall be delivered by the Director to the member, the obtain donations in order to furnish financial assistance, in the form of Clerk of the Kentucky Supreme Court, the Director of Membership, and loans, to enable members of the legal community to obtain treatment to the Circuit Clerk of the district wherein the member resides for for their impairment. The Board will appoint the Directors of any such recording and indexing as required by Rule 3.480. Foundation.

(5) A member suspended under this Rule may apply for restoration XLVII. SCR 4.130 Confidentiality to membership under the provisions of Rule 3.500. New subsection (a) and subsection (b) of section (1) of SCR 4.130 shall (6) A member may appeal to the Kentucky Supreme Court from read: such suspension order within thirty (30) days of the effective date of the suspension. Such appeal shall include an affidavit showing good All papers and information obtained by or on behalf of the Commis- cause why the suspension should be set aside. sion shall be confidential except as provided in this rule or by order of the Supreme Court. XLIII. SCR 3.670 Appeal of Commission actions (1)(a) Following the procedure set forth in SCR 4.170, upon filing of New section (5) of SCR 3.670 shall read: an answer to a notice of formal proceedings, or expiration of time for filing an answer, the notice and all subsequent pleadings filed with the (5) Commission certification of non-compliance filed with the Commission shall not be confidential, except that the Commission’s Supreme Court pursuant to SCR 3.652 (9) or SCR 3.669 may not be internal papers such as investigative reports and staff memoranda, and appealed under Sections (3) and (4) of this Rule. similar matters, shall remain confidential and shall not be a part of the formal file. XLIV. SCR 3.675 Continuing legal education requirements for restoration or reinstatement to membership: procedures (b) The Commission may reveal information to appropriate law enforcement authorities or to the judge under investigation that it Section (2) of SCR 3.675 shall read: believes is reasonable necessary in order to protect the public or the administration of justice. (2) The application or affidavit of compliance submitted for restora- tion or reinstatement shall include certification from the Director for XLVIII. SCR 4.310 (2) and (4) Judicial ethics committee and opinions CLE of completion of continuing legal education activities as required by these Rules, or otherwise specified by the Commission or Court. Sections (2) and (4) of SCR 4.310 shall read: Applicants or affiants shall request said certification from the Director for CLE in writing and shall submit with said written request a fee of (2) Opinions as to the propriety of any act or conduct and the con- fifty dollars ($50.00) to cover the expense of the record search and cer- struction or application of any canon shall be provided by the commit- tification. Applications or affidavits of compliance submitted for restora- tee upon request from any justice, judge, trial commissioner or by any tion or reinstatement which do not include the required certification of judicial candidate. Communications between the questioner and the continuing legal education credits, including verification of fee payment Judicial Ethics Committee and its members shall be confidential. If the for the certification, shall be considered incomplete and shall not be committee finds the question of limited significance, it shall provide an processed. informal opinion to the questioner. If, however, it finds the question of sufficient general interest and importance, it shall render a formal opin- XLV. SCR 3.680 Continuing Legal Education Award ion, in which event it shall cause the opinion to be published in com- plete or synopsis form, without specific identification of the questioner. Sections (2), (3), (4), (5) and (6) of SCR 3.680 shall read: Likewise, the committee may issue formal opinions on its own motion under such circumstances as it finds appropriate. (2) The Commission shall notify the member and issue the award. (4) Any person affected by a formal opinion of the ethics committee (3) Approved awards are valid for one year, beginning on the first may obtain a review thereof by the Supreme Court by filing with the day of July of the year of application award notification. clerk of that court within thirty (30) days after the end of the month in which it was published a motion for review stating the grounds upon (4) The validity of an award may be renewed for an additional year which the movant is dissatisfied with the opinion. The motion shall be following the initial awards date, in which the member who holds the accompanied by a copy of the opinion or synopsis as published and award completes a minimum of twenty (20) approved credit. shall be served upon the ethics committee and, if the movant is some- one other than the party who initiated the request for the opinion, upon (5) Failure to earn twenty (20) credits in any educational year fol- the initiating justice, judge or commissioner. The filing fee for docketing lowing the initial award date shall disqualify the member from further such motion shall be as provided by Civil Rule 76.42(1) for original renewals of that award. The member may only become eligible for actions in the Supreme Court. The ethics committee may file a another award by earning sixty-two and one-half (62.5) approved credit response to the motion for review within thirty (30) days after its receipt hours in a period separate and distinct from the period for which a prior of the motion. Notwithstanding the provisions of this subsection of the award was issued. rule, the Supreme Court on its own initiative may review a judicial ethics opinion at any time. (6) Each member who holds a valid, unexpired award shall receive a 25% discount from the normal registration fee for the Kentucky Bar XLVIX.SCR 7.030 Nomination and election – regular elections Association Annual Convention. Section (2), subsections (a), (b) and (c) of section (3), sections (4) and XLVI. SCR 3.910 Kentucky Lawyer Assistance Program (KYLAP) (6) of SCR 7.030 shall read:

New section (8) of SCR 3.910 shall read: (2) On or before June 1 of the years in which regular elections are to be held under this rule the board shall by majority vote nominate (8) KYLAP may, with the approval of the Board, establish such non- candidates for election to the various commissions as specified in para- profit tax exempt Foundations as are necessary for the purpose of car- graph (c) of this rule. The board shall immediately certify the names of rying out its mission. This may include establishment of a Foundation to its nominees to the director. On or before July 1 the director shall

January 2012 Bench & Bar 47 publish by appropriate means to the members specified in paragraph All sitting. All concur, except: (c) of this rule a list or lists of the candidates so nominated. Justice Scott, would not adopt the amendments to SCR 3.050, SCR (3) (a) For the commission for the Supreme Court and the Court of 3.130(1.19) or (1.20). Justice Cunningham and Justice Scott, would not Appeals the board shall nominate one (1) qualified member from each adopt the amendments to SCR 3.130(7.09). appellate district. The director shall publish by appropriate means a list Justice Scott, concurring with the majority’s decision not to adopt of the candidates so nominated to each member residing in the Com- amendments to SCR 3.150: Given this Court’s recent opinion which monwealth of Kentucky. extends “full immunity” to persons or institutions filing frivolous or malicious bar complaints, Morgan & Pottinger, Attorneys, P.S.C. v. Botts, (b) For the commissions for each judicial circuit the board shall 348 S.W.3d 599 (Ky. 2011)—one of such complaints I suggest this nominate two (2) qualified members. To the extent practicable, in multi- Court just wisely caught and rejected—I cannot, at this time, vote for county circuits the board shall nominate candidates from different this amendment. Moreover, the amendment would necessarily do away counties in the circuit. The director shall publish by appropriate means with the penalty of a “private” reprimand in many instances, now right- a list of the candidates so nominated to each member residing in the ly reserved for only the most minor of infractions. See Kentucky State circuit. Bar Ass’n v. Taylor, 482 S.W.2d 574, 577 (Ky. 1972) (“Publicity cuts both ways. Sometimes the desirability of having it is outweighed by the (c) Lists of the board’s nominees for election to the various com- desirability of protection from it ....Usually it is the respondent . . . missions may be combined as one list and may be included in one pub- whose protection from it is sought in a disciplinary case, but quite often lication of names. there are others whose protection is equally important.”). That being said, the current process, once concluded, fully discloses to the public (4) Any other qualified member may file a written petition for candi- by permanent publication the attorney’s name, all the charges, all the dacy for the commission for the Supreme Court and the Court of conduct underlying the same, as well as the penalty imposed in all Appeals, signed by himself and not less than ten (10) other members cases except those where a respondent is found “not guilty” of the residing in the Commonwealth of Kentucky, or may file a written peti- charges or the minor infractions found warrant only a private repri- tion for candidacy for the commission for a judicial circuit, signed by mand. Plainly, this Court is not an advocate of unbridled secrecy. For himself and not less than two (2) other members residing in the circuit. these reasons, I join the majority in voting “no” on this proposed In his petition the member shall state that he does not hold any other amendment at this time. public office or any office in a political party or organization. All such Justice Abramson, joined by Chief Justice Minton and Justice Schroder, petitions shall be filed with the director on or before August 15 of the dissents from the majority’s decision not to adopt amendments to SCR year in which the regular election for members of the commissions is 3.150 opening the lawyer disciplinary process to the public upon a to be held. The director shall acknowledge receipt of each candidate’s finding of probable cause and the issuance and service of a charge. petition by return mail. All petitions shall be considered public records The public access amendment proposed by retired Circuit Judge John and shall be available for inspection at reasonable hours. On or before W. Potter is a much-needed change and would align Kentucky’s lawyer September 1 the director shall publish by appropriate means to the disciplinary process with that of 38 sister states, the Model Rules of the members specified in paragraph (c) of this rule a list or lists of the can- American Bar Association and the rules applicable to other profession- didates, including those nominated by the board and those nominated als in the Commonwealth of Kentucky. Missteps by lawyers, often by petition. inexperienced lawyers, that fall short of “serious misconduct” can still be addressed by informal resolution, warning letter or other measures (6) Ballots shall be prepared by the director. The various commis- identified in SCR 3.160, undermining any argument that minor viola- sions shall be on separate ballots but may be included in one mailing. tions would be unfairly publicized. Other states and other professions The ballot for each commission shall include the names of the candi- in Kentucky have balanced public access for more serious allegations dates, listed in alphabetical order, and the addresses at which they with private discipline for minor infractions and the proposed amend- reside. There shall be printed on each ballot in boldface type the words ment would allow that balance. “This ballot must be received by the director on or before the first Tues- Justice Scott, would not adopt the amendments to SCR 3.180, the new day following the first Monday in November” and the words, “You must rule SCR 3.181, or the amendments to SCR 3.500. Justice Abramson vote for two and two only or your ballot will not be counted.” and Justice Venters, would adopt an amendment to increase the fee to five hundred ($500.00) dollars in SCR 3.510(1). Justice Cunningham, L. SCR 7.040 Nomination and election – special elections Justice Noble and Justice Scott, would adopt the amendments to SCR 3.662(3)(e) pertaining to Pro Bono Legal Services Credit. Justice Cun- Sections (1) and (2) of SCR 7.040 shall read: ningham and Justice Scott, would not adopt the amendment to SCR 3.666(2)(b). (1) On or before ten (10) days after receipt of the notice to the Justice Scott, would not adopt the amendments to SCR 3.669. Justice director (hereinafter referred to as “Director’s notice”) of the need for a Scott, would adopt the amendments to SCR 4.300. Justice Scott, would special election, to fill an unexpired term resulting from a vacancy in not adopt the amendments to SCR 4.310(2) and (4). the bar representation on any commission, the board shall nominate the bar representative for each vacancy in the same manner as provid- ENTERED: January 18 , 2012. ed in Rule 7.030(2) and (3).

(2) On or before twenty (20) days after the director’s notice, the director shall cause to be published by appropriate means to each member residing in the circuit or jurisdiction concerned a list of candi- dates nominated by the board.

48 Bench & Bar January 2012 KENTUCKY BAR NEWS

Salmon P. Chase protection, high-conflict custody, school, and other matters. In addition to College of Law their litigation duties, students may par- ticipate in research, policy development, and community education related to By Wendy Lane children’s issues. NKU Chase Advancement Coordinator “The intensive level of instruction and experiential learning these students NKU Chase Opens Children’s Law will receive is a welcome addition to Center Clinic our student opportunities here,” Tandy he Northern Kentucky University noted. “We’re thrilled that Amy has Chase College of Law has estab- Professor Amy Halbrook and Director Kim T joined our team and look forward to Brooks Tandy. lished the NKU Chase Children’s Law how the clinic will enhance our work.” Center Clinic through a partnership The clinic will equip the students with University of Georgia School of Law, between the law school and the the knowledge and skills they will use where he will be teaching contracts and Children’s Law Center in Covington. throughout their professional careers, commercial law beginning in the fall of The ribbon cutting ceremony was held with a focus on the unique practical and 2012. on December 1. ethical challenges related to represent- That same semester, the College of “We are extremely pleased to partner ing children. In addition, it will respond Law will be welcoming our second, as with the Children’s Law Center to offer to unmet legal needs and improve the yet unknown, Visiting Assistant our students the opportunity to gain quality of legal representation to chil- Professor. The two-year VAP program extensive experience while providing dren and teens. was designed, in large part, to enhance valuable services to clients who desper- “The relationship between Chase and the reputation of the College by giving ately need their help,” said Dennis the Children’s Law Center is key,” said UK Law graduates an opportunity to Honabach, dean of Chase College of Halbrook. “Kim Tandy and her staff gain valuable experience in law instruc- Law. attorneys provide the highest quality tion, with the goal of teaching at The clinic will be housed in the advocacy for children and youth. Clinic top-level law schools. The UK Law fac- Lowell Schechter Student Learning students will have training, support, ulty have recognized the high caliber of Center, a newly-renovated and fully- supervision, and the benefit of the students that graduate from the College, equipped 3000-square-foot clinic space Children’s Law Center’s specialized and believe the VAP program will reap on the third floor of the Children’s Law knowledge as they step up in court for huge benefits both for the College, and Center. The clinic is the brainchild of the first time.” for those top alumni who are interested Chase alumna Kim Brooks Tandy ’89, This fall, Professor Halbrook and in teaching careers. Because of this, UK director of the Children’s Law Center, three Chase students worked together to Law graduates are especially encour- and Chase Professor Emeritus Lowell plan and develop every aspect of the aged to apply, though applications from Schechter. clinic. The clinic will enroll eight stu- all qualified candidates are welcome. Chase Professor Amy Halbrook will dents per semester and will begin Interested applicants should email direct the clinic. Professor Halbrook accepting clients in January. Professor Gene Gaetke at joined the law school this fall after com- [email protected]. pleting clinical teaching fellowships in Professor Barnett is a 2005 summa the Children and Family Justice Center University of cum laude and Order of the Coif gradu- at Northwestern University School of Kentucky ate of the College of Law, and a summa Law and the Loyola University Chicago cum laude and Phi Beta Kappa graduate Civitas ChildLaw Clinic. “I hope to College of Law of Centre College. During his time at empower Chase students to become by Dean David A. Brennen UK Law, he has published two articles, compassionate, dedicated lawyers for “Avoiding Independent Agency children and youth,” says Halbrook. UK College of Law’s Visiting Armageddon,” forthcoming in the Notre Clinic students will receive special- Assistant Professor Program an Dame Law Review, and “The Consumer ized instruction and training in child and Immediate Success Financial Protection Bureau’s family law and advocacy, with a focus ent Barnett is completing his final Appointment with Trouble,” in the on abuse and neglect, family law, juve- Kyear as the University of Kentucky American University Law Review. The nile justice, education, professional College of Law’s inaugural Visiting UK College of Law has benefitted responsibility, and advocacy techniques. Assistant Professor (VAP). We were greatly from Professor Barnett’s time Under close supervision, students will happy to learn last month that here, both as a student and a Visiting then provide high-quality legal repre- Professor Barnett has accepted a posi- Assistant Professor, and we wish Kent sentation to child clients in child tion of assistant professor of law at the all the best in his career!

January 2012 Bench & Bar 49 KENTUCKY BAR NEWS

and three-term president of the His published legal writing credits Louisville Board of Aldermen; a mem- include The American Law of Mining ber of the Kentucky Workers (second edition), Coal Law and Compensation Board; a member and Regulation (a five-volume treatise), and vice chair of the Louisville Waterfront Kentucky Election Law. His essays call- The University of Louisville’s 2011 Development Corporation; a member ing for elimination of the death penalty Law Alumni Awards and two-term vice chair of the Transit have appeared in several regional publi- he University of Louisville’s Authority of River City Board; and a cations, and he is the 2010 recipient of TBrandeis School of Law is pleased current member and vice chair of the the Kentucky Association of Criminal to recognize the recipients of its 2011 Louisville Water Company Board. Defense Lawyers Bill of Rights alumni awards: Mershon is a founding member and Enforcer Award. past president of the Louisville Bar He was associate solicitor, United Creighton Mershon, Sr. Foundation and a member of the States Department of the Interior in Lawrence Grauman Award Kentucky Bar Foundation. He is a cur- Washington, D.C., from 1989-1991. Creighton E. Mershon, Sr., is a 1963 rent member and past president of the His mining treatise was cited by the graduate of Bellarmine University and Bellarmine University Board of Kentucky Supreme Court in the land- received his J.D. from the University of Overseers. He also belongs to the Trinity mark case of Akers v. Baldwin (1987), Louisville’s Brandeis High School Foundation, Olmsted Parks which reconsidered Kentucky’s notori- School of Law in Conservancy, and the Louisville ous broad form deed. He is a director 1968. He has been a Committee on Foreign Relations. emeritus of the Energy and Mineral member of the Law Foundation, which he helped found Kentucky bar since Donald Vish in 1979. 1968 and remains a Distinguished Alumnus Award He is currently executive director and member of the Donald Vish is a member of the board member of the J & L Foundation, Louisville Bar Kentucky and Florida bars, a life mem- a philanthropy focused on peace, racial Creighton E. Association. ber of the American harmony, and child welfare issues; Mershon, Sr. Mershon is the Law Institute, a life director of advocacy, education and out- retired general counsel for Kentucky fellow of the District reach for the Kentucky Coalition to Operations/BellSouth Corporation. of Columbia chapter Abolish the Death Penalty, and of coun- While in law school, he was the notes of the American Bar sel to the firm of Middleton Reutlinger. and associate editor for the Journal of Foundation, and the He is president of the Donors Forum of Family Law. He is a former member of Louisville and Metro Louisville, an association of the Alumni Association Board of Kentucky Bar grant making philanthropies, and a Directors, and he sits on the Law Donald Vish Foundations. He grad- board member of the Center for Non- Alumni Council. uated in 1970 with Profit Excellence and the Kentucky Mershon has served as a Peace Corps honors from the Brandeis School of School of Art. volunteer in Ciudad Bolivar, Venezuela; Law and in 1968 from Bellarmine special assistant to Louisville mayor University, where he is included among John Tate Frank W Burke; a two-term member an honor roll of distinguished graduates. Distinguished Alumnus Award John Tate is a member of Stites & Harbison PLLC. Forensic Psychology Services After receiving his undergraduate degree from Wake Harwell F. Smith Ph.D. Forest University in • CRIMINAL RESPONSIBILITY 1969, Tate earned an • COMPETENCE TO STAND TRIAL M.A. from the • PERSONAL INJURY EVALUATIONS University of • INDEPENDENT PSYCHOLOGICAL EVALUATION Louisville. He taught • DISABILITY EVALUATIONS • EXPERT OPINION OFFERED TO DEFENSE OR PROSECUTION writing and literature courses in the old 30 years experience. John Tate University College, Over 50 court appearances. and spent seven years Special interest in criminal cases involving mental condition at the working for an environmental protection time of the incident — performed more than 500 of these evaluations. Board Certified agency. While working full time, he 859.276.1836 • 2201 Regency Rd. #501 • Lexington, KY 40503 Clinical Psychologist attended the Brandeis School of Law’s evening division, serving as articles

50 Bench & Bar January 2012 KENTUCKY BAR NEWS editor for the Journal of Family Law moved to MGM/UA where, as the sen- From 2002 to 2003, Gleason served and graduating magna cum laude in ior vice president of Studio Legal as legal counsel to the Governor’s 1981. Affairs, she oversaw the studio’s legal Office of Child Abuse and Domestic Tate is a trial lawyer specializing in department and was in charge of all Violence Services, where she provided bet-the-company litigation and defending theatrical, television and video produc- legal services and staffed committees of complex product liability claims. He has tion legal matters. Motion pictures the Governor’s Council on Domestic tried cases to jury verdicts in eight states produced by MGM/UA during her Violence and Sexual Assault. She pre- and is a frequent author and speaker on tenure include Rain Man, A Fish pared a civil remedies manual for trial practice topics. Elected in 1999 to Called Wanda, Rocky IV and V, and victims of domestic violence and sexual be a Fellow of the American College of Moonstruck. assault that is used to train attorneys Trial Lawyers, Tate credits the talented Niederman joined Twentieth Century about additional options and greater mentors and inspirational leaders at Fox in 1993. For 18 years she has over- access for victims. Stites & Harbison for his legal successes. seen some of the studio’s biggest Gleason believes strongly in the His community involvement includes the franchises. She is currently the legal power of public service and its impor- boards of Actors Theatre, Louisville Bar executive in charge of Avatar II and III, tance in the legal profession. She is Foundation, American Lung Association, Alvin and the Chipmunks III, Diary of a committed to the value that all people St. Francis Goshen, and Louisville Wimpy Kid 3, and the upcoming Ridley have worth and seeks to live a life that Audubon Society. Scott thriller Prometheus. demonstrates this belief. Together with Phyllis McMurry, his wife of 43 years, Tate lives on a work- Mary Jo Gleason Tori Murden McClure ing farm in Shelby County and does his Distinguished Alumna Award Distinguished Alumna Award best as the hired hand. His son Adam is Mary Jo Gleason is a 1996 graduate Tori Murden McClure is the presi- an architect in Phoenix, and daughter of the Louis D. Brandeis School of Law. dent of Spalding University in Emily is an actress in Chicago. Currently, she serves Louisville which as a staff attorney for offers 27 degree pro- Nancy Niederman the Kentucky Court of grams at the bachelor, Distinguished Alumna Award Appeals. Gleason was master, and doctoral Nancy S. Niederman is a senior exec- a mediator for Just level, to more than utive at Twentieth Century Fox Film Solutions in Louisville 2,000 students. From Studios specializing in and Oldham County 2004 through 2009, theatrical motion pic- District Court. She she served as the vice ture production. At Mary Jo Gleason now serves on the Tori Murden president of external Fox, she has served as Board of Just Solutions McClure relations, enrollment the production attor- and works as a facilitator. management, and student affairs at ney on numerous films Gleason participates in many volun- Spalding University. including the interna- teer activities, including the Board of She holds a Bachelor of Arts from tional blockbuster Family and Children’s Place. She is Smith College, a master of divinity Nancy S. Avatar, and the family currently involved in a project with the from Harvard University, and her juris Niederman favorites Alvin and the law school and Central High School’s doctor from the University of Chipmunks I and II, Garfield I and II, law magnet program. Gleason, law stu- Louisville’s Louis D. Brandeis School and The Chronicles of Narnia: Voyage dents, and volunteer lawyers work with of Law. In 2005, she earned her master of the Dawn Treader. the juniors in the program on legal of fine arts in writing from Spalding Niederman received her B.A. from advocacy both oral and written. University. Her non-fiction book, A the University of Kentucky in 1975 Formerly, Gleason was the director Pearl in the Storm, was published by and graduated magna cum laude from of the Samuel L. Greenebaum Public Harper-Collins in 2009. the University of Louisville School of Service Program at the Brandeis A passionate world adventurer and Law in 1980, where she was a member School of Law. She coordinated and humanitarian, McClure is best known as of the Brandeis Honor Society and administered the public service the first woman and first American to Notes Editor on the Journal of Family program. During that time, she also row solo across the Atlantic Ocean. She Law. She began her career in the served as the vice president of mem- was also the first woman and first Beverly Hills entertainment firm of bership for the Women Lawyers American to travel over land to the geo- Kaplan, Livingston, Goodwin, Association of Jefferson County. graphic South Pole. An avid Berkowitz, & Selvin. She then moved Gleason was honored to receive the mountaineer, McClure has climbed on to Columbia Pictures, where she Women Lawyers Association several continents. She is a fully certi- served as senior counsel in the motion Outstanding Member of the Year fied emergency medical technician in picture division. In 1986, Niederman Award in 2005. both urban and wilderness areas, and is

January 2012 Bench & Bar 51 KENTUCKY BAR NEWS a graduate of the National Outdoor Skills Board, a member of the Brandeis Paulin and her husband stay busy Leadership School (NOLS), where she Law Journal (now the University of with five grown children, two grand- currently serves as the chair of the Louisville Law Review), and a member daughters, several race horses, and a board of trustees. of the Brandeis American Inns of Court. side business. She also served as the student represen- Karen Paulin tative on the Law School dean search Lowry Watkins, Jr. Recent Alumna Award committee. A strong believer in the Dean’s Service Award Karen M. Paulin is an attorney at value of the moot court program, Paulin Lowry Watkins, Jr. is a 1968 gradu- Stites & Harbison, PLLC, where she and her husband continue to provide ate of the College of Business at the has been a member of support for the law school’s ACTA University of the firm’s labor and National Trial Competition. Louisville. He is the employment law serv- Prior to returning to graduate school grandson of William ices group since 2007. to obtain her J.D. and M.B.A., Paulin Marshall Bullitt, one She also actively par- had a career in human resources and of the most prominent ticipates with the earned her Senior Professional in alumni of the health care and busi- Human Resources certification (SPHR) University of ness litigation service from the Human Resources Certification Louisville’s Brandeis Karen M. Paulin groups. Paulin repre- Institute. Most recently, she was the Lowry School of Law. sents employers and vice president of Human Resources at Watkins, Jr. Watkins continues to focuses her practice on all areas of Metro United Way. be one of the Law School’s biggest sup- employment law, including discrimina- Paulin is an active community volun- porters. Last year, Watkins pledged his tion, harassment, wage and hour, teer. Currently, she is president of the largest gift to the Law School to date, FMLA, ADA, affirmative action, UofL Law Alumni Council, a member of an endowed Faculty Chair in Business employment contracts, the prevention the UofL Alumni Association Board of Law in the name of his grandfather, of workplace violence, employee hand- Directors, president of the GuardiaCare William Marshall Bullitt, insurance books, and training and development. Services, Inc. Board of Directors, and a attorney and solicitor general of the In law school, Paulin was an officer member of the Metro United Way United States. Having been appointed on the Moot Court and Professional Human Resources Committee. solicitor general by President Howard Taft on June 28, 1912, Bullitt argued over 50 cases in front of the Supreme Court of the United States. During his service as solicitor general, Bullitt Need to Cut Costs? argued cases involving the maintenance of the Prohibition law during the First World War, enforcement of the Sherman Anti-Trust Act on cotton corners, and A Complete publicity laws and mail rates regarding newspapers and their circulation. On-Line Watkins continues to be a generous supporter of the University of Louisville’s Legal Research many academic programs, but maintains his deepest connection with the Law Resource School. For that, and for the tremendous commitment that he has made in support of the Louis D. Brandeis School of Law at the University of Louisville, we forever will consider him one of our own.

Linda Sorenson Ewald Excellence in Teaching Award Only $34.95/Month Professor Linda Sorenson Ewald grad- Per Member uated from the Brandeis School of Law and New York University. She served as www.LawReader.com a member of the law school faculty for 35 years and also served as associate dean for 17 of those years. For many years, she

52 Bench & Bar January 2012 KENTUCKY BAR NEWS taught civil procedure to first-year stu- Group, the leadership team bringing every major presidential candidate dents. More recently her teaching and the HuffPost’s unique blend of news, since 1985 as well as business and research interests have commentary and entertainment leaders and has appeared focused on domestic reader engagement to on most major news and commentary relations and profes- all AOL content sites shows. sional responsibility. and 250 million users His book, The Thirteen American Professor Ewald served worldwide. He contin- Arguments, was published by Random on Jefferson County ues to report and House in 2008 and was a national best- Public Defender Board, write on politics for seller. The paperback edition of the the Judicial Nominating the Huffington Post book, published in 2009, went to new Linda Sorenson Commission for Howard Fineman main site. printings in 2010 and is available in Ewald Jefferson County and A long-time politi- major bookstores or on Amazon.com. on the KBA Ethics 2000 Committee. She cal reporter and commentator, Fineman He is the winner of numerous awards, has been chair of the KBA Ethics serves as an analyst for NBC News and including the Alumni Award from his Committee for the past 10 years and cur- MSNBC. He is a regular on MSNBC’s professional alma mater, the Columbia rently serves as co-chair of the ABA “Hardball with Chris Matthews” and Journalism School; an American Bar Death Penalty Assessment Team for “Last Word with Lawrence O’Donnell.” Association “Silver Gavel” Award; and Kentucky. He also appears on MSNBC’s “Rachel a New York Press Association Professor Ewald has received a num- Maddow Show,” “Morning Joe,” NBC’s “Headliner’s Award.” In addition, ber of awards recognizing her service to “Today Show” and the weekend NBC- Fineman’s work helped Newsweek win the community and the profession, syndicated “Chris Matthews Show.” three National Magazine Awards. In including the Kentucky Bar Fineman joined The Huffington Post May 2011 he was awarded an honorary Association’s Justice Thomas Spain in October 2010 after many years as a Doctorate in Humane Letters by Colgate Continuing Legal Education Award, the reporter, columnist, editor, and deputy University, his college alma mater. University of Louisville Lifetime Washington bureau chief at Newsweek A Phi Beta Kappa graduate of Faculty Service Award, the Jefferson Magazine. When HuffPost was Colgate, Fineman earned an M.S. from County Women Lawyers’ Association acquired by AOL in March 2011, Columbia and a J.D. degree from the Member of the Year Award, the Judge Fineman was named editorial director University of Louisville during his years Benjamin F. Shobe Civility and of the new media group by Huffington as a reporter with The Courier-Journal Professionalism Award, and the KBA Post founder and editor-in-chief in Kentucky. He won a Watson President’s Special Service Award. Arianna Huffington. Traveling Fellowship while at Colgate The author of scores of Newsweek and a Pulitzer Traveling Fellowship at Howard Fineman cover stories and a Newsweek column Columbia. 2010 University of Louisville Alumni called “Living Politics,” Fineman’s Fineman is married to Washington Fellow work also has appeared in The New attorney Amy L. Nathan. They are the Howard Fineman is editorial direc- York Times, The Washington Post, and parents of two children, Meredith and tor of the AOL Huffington Post Media The New Republic. He has interviewed Nicholas.

Before You Move... Over 16,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which he or she may be communicated, as well as a physical address if your mailing address is a Post Office address. If you move, you must notify the Executive Director of the KBA within 30 days. All roster changes must be in writing and must include your 5-digit KBA member identification number. There are several ways to do this for your convenience.

VISIT our website at www.kybar.org to make ONLINE changes or to print MAIL the Address Change/Update Form obtained from our website or other an Address Change/Update Form written notification to: Kentucky Bar Association EMAIL the Executive Director via the Membership Department at Executive Director [email protected] 514 W. Main St. Frankfort, KY 40601-1812 FAX the Address Change/Update Form obtained from our website or other written notification to: * Announcements sent to the Bench & Bar’s Who, What, When & Where col- Executive Director/Membership Department (502) 564-3225 umn or communication with other departments other than the Executive Director do not comply with the rule and do not constitute a formal roster change with the KBA.

January 2012 Bench & Bar 53 KENTUCKY BAR NEWS

SUMMARY OF MINUTES Legislative Committee and Task Force Michele Pogrotsky presented the KBA BOARD OF GOVERNORS on Dues Structure Evaluation. financial report. MEETING • Authorized the KBA Probate & Trust • Adopted a proposed media protocol SEPTMEBER 16-17, 2011 Law Section of the Legislation for Board members. Committee to communicate the legis- • Approved adding the employee salary The Board of Governors met on Friday lation to the Legislature on the listing to the KBA website. and Saturday, September 16-17, 2011. following seven (7) proposed legisla- • Approved the appointment of a Task Officers and Bar Governors in atten- tions: amendments to KRS 386.454, Force on Conflict Counsel for Indigent dance were, President M. Keane; Kentucky Decanting Statute, KRS Criminal Defendants. President-Elect D. Myers; Vice 386.502, amendments to KRS 386.810 • President Keane reported that as she President T. Rouse; Immediate Past and 395.195, amendments to KRS attends the KLU programs she is hold- President B. Davis; Young Lawyers 381.180 and proposal to grant specific ing receptions for the local bar leaders Section Chair R. Rechter. Bar authority in the District Court to create in Bowling Green, Owensboro, Governors 1st District – J. Freed; Bar a self-settled special needs “Pay Back” Ashland, Gilbertsville, Prestonsburg Governors 2nd District – J. Harris, R. Trust. and London. Sullivan; 3rd District – R. Hay, G. • Approved authorizing the Task Force • Approved the total reserve/surplus Wilson; 4th District – D. Ballantine, D. on Mentor Program to move forward carry forward of 23 section funds for Farnsley; 5th District – W. Garmer; 6th with the development of an on-line fiscal year ending on June 30, 2011. District – D. Kramer, S. Smith; and 7th mentoring program. • Approved the total reserve/surplus District – B. Rowe, M. McGuire. Bar • Young Lawyers Section Chair carry forward for computer funds for Governors absent were: A. Britton and Rebekkah Rechter reported that there fiscal year ending on June 30, 2011 in S. Jaggers. had been a Federally Declared the amount of $150,000. Disaster in several Western Kentucky • Approved the appointment of the In Executive Session, the Board consid- counties as a result of tornadoes and Corporate House Counsel Section ered two (2) discipline cases and three the YLS had some activity there with 2011-2012 Officers. (3) discipline default cases. Malcolm the YLS Disaster Legal Services. She • Executive Director John Meyers Bryant of Owensboro, Steve Langford also reported that the section will have reviewed the survey responses to the of Louisville, Roger Rolfes of a full day of free CLE programming in questions on the dues statement. 42 Covington and Dr. Robert Strode of October at the University of Louisville percent answering the ethnicity survey, Frankfort, non-lawyer members serving for recent graduates with a panel for the majority of which were Caucasian, on the Board pursuant to SCR 3.375, alternative legal careers and how to 43 Hispanic and 154 Black/African participated in the deliberations. pursue non-traditional careers with a American, that 6 percent responded as law degree. Ms. Rechter reported that being Veterans. There were 1,500 In Regular Session, the Board of the section has contracted with a web names received in response to the Pro Governors conducted the following based email provider that will allow Bono inquiry. business: the YLS to create a full graphic, full • A copy of the CLE Commission color newsletter that now will be Annual Report that is filed with the • Heard a status report from the Member going out to the YLS members twice a Supreme Court was distributed to the Services Committee, Office of Bar month. Board for their information and Counsel, Rules Committee, • Director of Accounting/Membership review.

KYLAP TO OFFER NEW MEETING The Kentucky Lawyer Assistance Program (KYLAP) is pleased to announce To KBA Members that a new Lawyers in Recovery meeting began on Jan. 26, 2012, in Louisville. Do you have a matter to discuss The meeting will be held weekly, on Thursday mornings at 7:30 a.m., for one with the KBA’s Board of Governors? hour, at Dish on Market, 434 West Market Street, Louisville in a private setting. Board meetings are scheduled on (Formerly the Delta Bar & Lounge). Coffee, pastries, and a full breakfast will be available for purchase beginning March 16-17, 2012 at 7 a.m. The meeting will begin at 7:30 a.m., and is open to law students, May 18-19, 2012 lawyers and judges who are already involved or who are interested in a 12-step To schedule a time on the Board’s agenda program of recovery, including but not limited to Alcoholics Anonymous, at one of these meetings, please contact Narcotics Anonymous, Overeaters Anonymous and Al-Anon. For additional John Meyers or Melissa Blackwell information, please visit our website at www.kylap.org, call us at 502-564-3795, at (502) 564-3795. ext. 266, or e-mail us at [email protected].

54 Bench & Bar January 2012 KENTUCKY BAR NEWS

2012 Bowl for Kids Sake Benefits ■ In Memoriam

Big Brothers/Big Sisters Edwin L. Cohen Louisville he Louisville Bar Association pres- time for fun, then Bowl for Kids’ Sake John Goodall Crutchfield Louisville T ents the 2012 Attorney Bowl, which is right up your alley! George R. Effinger Paducah will take place Thursday, February 16, All participants will play one game Robin Michelle Evernham Newburgh, IN 2012, on 4th Street Live at the Sports of bowling, plus receive free appetizers and Social Club. Teams can bowl at 5, and a commemorative T-shirt and vari- Robert Curtis Fields Frankfort 6, and 7 p.m. ous door prizes. Each bowler Greeley Gay Versailles, IN It is not too early to start gathering contributes a minimum of $85 in dona- Arthur R. Heckerman Cincinnati, OH your team or fundraising! There will be tions. Players with top pledges are also Walter C. Herdman Frankfort prizes for the top individual fundraiser eligible to win additional prizes. Kevin Michael Horne Lexington and the top single-team fundraiser in For more information please contact addition to several other prizes! Kate Lindsay, director of Pro Garland W. Howard Owensboro Please visit Bowlforkidssake.com to Bono/Public Service Programs at the Glay E. Maggard Dauphin Island, AL set up your online account to start Louisville Bar Association. Lindsay can Jack B. Miller Jamestown fundraising! be reached by phoning 502-292-6729 or Richard H. Nash Louisville Bowl for Kids’ Sake is a fundraiser by emailing [email protected]. benefiting Big Brothers/Big Sisters Sidney A. Phillips Louisville (check out www.bbbsky.com to learn Julius E. Price Jr. Louisville more). David A. Schechter Louisville It’s not about bowling. It’s about Edward C. Seddon Murfreesboro, TN kids. Bowl for Kids’ Sake is an easy and CLICK Martin F. Sullivan Jr. Louisville enjoyable way to make a positive differ- ence. Everyone can get involved! If you www.kybar.org Howard Van Antwerp Ashland care about kids and can spare a little Donald Walker Ziglar Charleston, SC

January 2012 Bench & Bar 55 KENTUCKY BAR NEWS Local Judge Receives National Award Judge David A. Tapp joins celebrities, national leaders at massive Drug Court Conference By Chris Deutsch Communications Director, NADCP entucky Drug Court Judge David A. KTapp, who serves Lincoln, Pulaski and Rockcastle counties, has been awarded with the prestigious National Association of Drug Court Professionals ‘All Rise’ award during a star-studded conference in Washington, DC. The National Association of Drug Court Professionals (NADCP) Annual Training Conference is considered the world’s largest on substance abuse and the criminal justice system. This year’s event took place July 17-20 and brought nearly 4,000 state and federal justice leaders, celebrities, judges, prosecutors, defense attorneys, clinicians, police and probation officers, military veterans, business owners, Drug Court graduates and their family members to the nation’s capital. Judge Tapp was recognized along with actors Martin Sheen, Matthew Perry and Harry Lennix during the clos- ing ceremony of the conference on July Association of Drug Court Professionals National Photo credit: Judge David A. Tapp, who serves as a Drug Court judge for Lincoln, Pulaski and Rockcastle 20. Judge Tapp was honored for his role counties, gives his acceptance speech after receiving the All Rise award from the National in securing and conducting an interview Association of Drug Court Professionals in Washington. “I do Drug Court for the small with Congressman Hal Rogers (R-KY), moments,” he said in his speech to nearly 3,700 attendees at the NADCP conference. Chairman of Appropriations in the U.S. “When you look at an offender who has struggled ... and at some point during the process that small moment comes where you look at them and you see a new confidence. You see a gleam in House of Representatives, last their eye that wasn’t there before, and you know that they get it. That’s why I do Drug Court.” December for NADCP’s All Rise Magazine. The interview was so suc- T. Burdette also serves as a Drug Court seriously drug-addicted individuals cessful that it was featured as the cover judge for Lincoln, Pulaski and through intense treatment and supervi- story of the quarterly. Rockcastle counties. The judges volun- sion. Nationally, Drug Courts have been Judge Tapp, who is a Circuit Court teer their time to preside over Drug proven to significantly reduce drug judge, has presided over Drug Court Court. This Drug Court, like the nearly abuse crime and recidivism while sav- since 2005. Circuit Court Judge Jeffrey 2,700 in existence nationwide, serves ing money.

LAW DAY 2012 PLANNING GUIDES AVAILABLE FOR DOWNLOAD NOW Bar associations across the Commonwealth are invited to begin their preparations for the KBA’s Annual Law Day Awards Competition by downloading the free 2012 Law Day Planning Guide at www.lawday.org and accessing the link under “Ideas and Resources.” The 2012 Law Day theme, “No Courts, No Justice, No Freedom,” underscores the importance of the courts and their role in ensuring access to justice for all Americans. The planning guide is designed to assist bar associations in making their Law Day events successful, interesting and easy to accomplish. The KBA Law Day Committee will award $300 to the first place winner in each of the three bar categories – small, medium and large bar associations. Representatives from the winning associations will be honored at the KBA Membership Luncheon to be held Friday, June 8, 2012, during KBA Annual Convention held this year at the Galt House in historic downtown Louisville. Additional materials regarding Law Day 2012 will be mailed to local bar asso- ciations in the weeks ahead. If you need additional information, please contact Shannon Roberts in the Communications Department at the Kentucky Bar Association at [email protected] or (502) 564-3795, ext. 224.

56 Bench & Bar January 2012 WHO, WHAT, WHEN & WHERE breach of employment contracts, Seiller Waterman, ON THE MOVE employment-at-will, OSHA matters, LLC, is pleased to The Law Firm of Sarbanes-Oxley matters, employment announce that Robert Goldberg Simpson is investigations and audits, wage and J. Packard has pleased to announce hour and other FLSA issues, collective become an associate that Brant W. Sloan bargaining negotiations, labor arbitra- with the firm. Packard has joined the firm as tion, and unfair labor practice issues received his J.D. from an associate in the under the National Labor Relations Act the University of Workouts, Bankruptcy, and corresponding state law. Reid Robert J. Packard Louisville Louis D. Real Estate and received his Juris Doctor from the Brandeis School of Brant W. Sloan General Litigation University of Cincinnati College of Law and is licensed to practice law in Groups. Sloan gradu- Law and a Bachelor of Arts summa cum Kentucky, Colorado and Utah. Packard ated from the University of Louisville laude from Xavier University in holds an LLM in taxation from the Louis D. Brandeis School of Law, cum Cincinnati, Ohio. Reid is licensed to University of Denver. His practice laude, in 2010. He graduated from practice law in Ohio and the includes estate planning and administra- Butler University with a Bachelor of Commonwealth of Kentucky. Reid is tion, corporate transactions, tax plan- Arts, cum laude, in 2007. Sloan is a also a member of the Labor and ning and IRS litigation. member of the Louisville and Kentucky Employment Law Committees of both Bar Associations. the Ohio State Bar and Cincinnati Bar Dinsmore is pleased Associations. to announce that Fowler Measle & Bell William A. Blodgett, PLLC is pleased to Spurgeon & Tinker, PSC, is pleased to Jr., former senior vice announce that Casey announce that Jilliam M. Dove and president and deputy Cavanaugh Zachary M. Becker have joined the general counsel of Stansbury has become firm as associate attorneys. Dove Brown-Forman a member of the firm. attended Centre College for her under- Corporation, has Stansbury graduated graduate degree, graduating in 2008 William A. joined the firm. He from Louisiana State with majors in Spanish and international Blodgett, Jr. will practice in the Casey Cavanaugh University in 1998 and studies. Dove earned her law degree Labor & Employment, Stansbury received his Juris from the University of Kentucky Litigation and Corporate Departments Doctor from Ohio College of Law where she was the pres- from the firm’s Louisville office. Prior to Northern University in 2001. He is a ident of the Trial Advocacy Board, a joining Brown-Forman, Blodgett was a member of the firm’s Litigation Group, legal intern at the University of partner at Woodward, Hobson & Fulton, and concentrates his practice on insur- Kentucky’s Legal Clinic, an officer for which combined with Dinsmore in 2009. ance defense, government and munici- the Student Bar Association and a mem- Blodgett presently serves on the Boards palities, product liability and ber of Phi Alpha Delta. Becker received of Directors of the Kentucky School of construction. his law degree from the University of Art (chair) and the Kentucky Opera and Kentucky College of Law, where he is a member of the Board of Trustees of Robert J. Reid is a partner in the was the president of the Moot Court Spaulding University. He earned his J.D. Cincinnati office of Quintairos, Prieto, Board, member of the Moot Court from the University of Louisville Louis Wood & Boyer, P.A., with his practice National Team and the Evan A. Evans D. Brandeis School of Law and his B.A. mainly focused in the area of labor and Moot Court Team, officer of the Student from the University of North Carolina. employment law. Reid is certified by Bar Association, as well as an editor for the Ohio State Bar Association as a the Kentucky Journal of Equine, Wyatt, Tarrant & specialist in Labor and Employment Agriculture and Natural Resources Law. Combs, LLP, is Law. He provides defense counsel to Prior to law school, Becker graduated, pleased to announce private and public employers in labor cum laude, from Southern Methodist Daniel C. Soldato has and employment issues, including dis- University with majors in music and been named associate. crimination and civil rights issues, medieval studies. Soldato is a member of the firm’s Health Care Service Team. He was Have an item for Daniel C. Soldato formerly an associate WHO, WHAT, WHEN & WHERE? at McGuireWoods LLP The Bench & Bar welcomes brief announcements about member placements, promotions, in Chicago. Soldato received a B.A. and a relocations and honors. Notices are printed at no cost and must be submitted in writing to: M.Ed. from the University of Notre Managing Editor, Kentucky Bench & Bar, 514 West Main Street, Frankfort, KY 40601 or by Dame and a J.D., cum laude, from email to [email protected]. Digital photos must be a minimum of 300 dpi and two (2) inches Northwestern University School of Law. tall from top of head to shoulders. There is a $10 fee per photograph appearing with Soldato focuses his practice on corporate announcements. Paid professional announcements are also available. Please make checks services and regulatory matters for payable to the Kentucky Bar Association. healthcare organizations. In this capacity,

January 2012 Bench & Bar 57 WHO, WHAT, WHEN & WHERE he has assisted in negotiating operating Dinsmore is pleased Transylvania agreements, asset purchase agreements, to announce that University and her employment agreements and medical Sunni Harris, Haley J.D. from the director agreements. He has advised Trogdlen McCauley University of clients regarding healthcare fraud and and Daniel O’Gara Kentucky. She will be abuse laws, Medicare and Medicaid par- have joined the firm’s working out of the ticipation requirements, HIPAA, and vari- Kentucky offices. firm’s Lexington ous state healthcare laws and regulations. Sunni Harris joins office in the practice Soldato also assists clients in the develop- Sunni Harris the firm’s Labor & Brittany area of workers’ com- ment of corporate compliance programs. Employment MacGregor pensation defense. Department. Prior to joining the firm, Mobley received her The law firm of Harris worked for the Lexington-Fayette bachelor’s degree of Schiller Osbourn Urban County Government. She earned business administra- Barnes & Maloney, her J.D. from the University of tion in marketing and PLLC, is pleased to Kentucky College of Law and her B.S. her J.D., both from the announce that Deron from Vanderbilt University. Haley University of M. Schulten has Trogdlen McCauley Kentucky. She will be become associated joins the firm’s working out of the with the firm. Schulten Litigation Department. Whitney Mobley firm’s Lexington Deron M. Schulten obtained his J.D. from Prior to joining the office in the practice the University of firm, McCauley com- area of workers’ com- Louisville Louis D. Brandeis School of pleted a clerkship with pensation defense. Law as a member of the evening divi- Judge John M. Rogers Cowles received her sion, and was admitted to practice in of the United States bachelor’s degree of Kentucky in 2011. He joins the firm as Court of Appeals for business administra- Haley Trogdlen an associate and will concentrate his McCauley the Sixth Circuit. She tion in finance and practice in insurance defense, specifically earned her J.D. from management and her including the areas of personal injury, the University of Kentucky College of J.D. from the products liability and insurance litigation. Law and her B.A. from Transylvania Sara Cowles University of University. Daniel Cincinnati. She will Jefferson County Attorney Mike O’Gara joins the be working out of the O’Connell has appointed the following firm’s Litigation firm’s Bowling Green as assistant county attorneys: John Department. Prior to office in the area of Carroll, Kristie Daugherty, Lonita joining the firm, workers’ compensa- Gaines, Justin Gooch, Mary C. Head, O’Gara worked with tion defense. Dawson Justin Janes, and Blake Nolan. Judge Ronald F. did his graduate stud- Bartkowicz and the ies in music at the Christopher L. Muzzo is a partner in the Cook County Circuit University of Daniel O’Gara Cincinnati office of Quintairos, Prieto, Court. He earned his Doug Dawson Louisville and Wood & Boyer, P.A. Muzzo represents J.D. from Loyola University of Chicago received his J.D. from clients before federal and state trial and and his B.A. from Miami University. the University of Louisville Louis D. appellate courts in Ohio and Kentucky in Brandeis School of Law. He will be a wide variety of matters involving con- Ferreri & Fogle, assisting out of Ferreri & Fogle’s tracts, business torts, antitrust, negligence, PLLC, is pleased to Louisville office in the area of workers’ professional and premises liability, non- announce the addition compensation defense and will be doing compete and trade secret litigation, and of five new associate estate planning as well. complex litigation. Muzzo received his attorneys to its Juris Doctor, cum laude, from Kentucky offices: Landrum & Shouse LLP is pleased to Northwestern University School of Law Michael Kunjoo, announce that Bridget M. Bush has in Chicago and a Bachelor of Arts from Brittany MacGregor, joined the firm as counsel in the Northwestern University. Muzzo is Michael Kunjoo Whitney Mobley, Louisville office and will practice in the licensed to practice law in Ohio and the Sara Cowles and areas of commercial litigation and white Commonwealth of Kentucky. His profes- Doug Dawson. Kunjoo received both collar criminal defense/internal investi- sional affiliations include the American, his Bachelor of Science and his J.D., gations. She earned her J.D. from Ohio, and Cincinnati Bar Associations as from the University of Kentucky. He Harvard Law School and previously well as the Cincinnati Academy of will be working out of the firm’s practiced in the Washington D.C. office Leadership for Lawyers. His civic Lexington office in the practice area of of Debevoise & Plimpton. Bridget involvement includes the United Way workers’ compensation defense. clerked for the Honorable Richard J. Emerging Leaders Society, and he is also MacGregor received her Bachelor of Cardamone, U.S. Court of Appeals for a tutor at Rothenberg Preparatory School. Arts in political science from the Second Circuit.

58 Bench & Bar January 2012 WHO, WHAT, WHEN & WHERE The law firm of Edward B. Atkins, Dinsmore is pleased to Schachter, Hendy & United States announce that Chris Johnson, PSC, is Magistrate Judge for Cashen, Laura pleased to announce the Eastern District of D’Angelo and Robert that Sarah N. Smith Kentucky. She earned Croft, Jr., have joined has joined the firm as her J.D. from the the firm. The three an associate attorney. University of attorneys are making While in law school, Kentucky College of the move from Wyatt, Sarah N. Smith she worked as a law Alina Klimkina Law and her B.A. Chris Cashen Tarrant & Combs, LLP clerk for the firm. from Centre College. to Dinsmore’s Smith earned her J.D., summa cum Lexington office. laude, from the Northern Kentucky Gwin Steinmetz & Chris Cashen joins University Salmon P. Chase College of Baird is pleased to the firm as a partner in Law and her B.A., magna cum laude, announce that Ashley the Products Liability from Ball State University. Her primary Ryan Gaddis, & Tort Practice areas of practice at Schachter, Hendy & Zachary T. Greer, Groups. He concen- Johnson will include product liability, and Marilyn O. trates his practice in the medical malpractice and personal injury. Patterson have joined Laura D’Angelo areas of products liabil- the firm as associates. ity, insurance coverage Wyatt, Tarrant & Ashley R. Gaddis Gaddis obtained her issues, premises liabil- Combs, LLP, is J.D. from the ity and commercial liti- pleased to welcome University of gation. Prior to joining Christopher Melton Kentucky College of the firm, he served as and Jennifer Law. She will con- the former chair of Wintergerst to its centrate her practice in Wyatt, Tarrant & Health Care Service the areas of insurance Combs Product Team as counsel. defense in personal Robert Croft, Jr. Liability Practice Christopher Melton concentrates injury litigation, as Group. Cashen earned Melton his practice in the area well as insurance cov- his J.D. from the University of Kentucky Zachary T. Greer of health care law, erage and bad faith College of Law and his B.B.A. from the with an emphasis in actions. Greer University of Kentucky. Laura D’Angelo Medicaid and obtained his J.D. from joins the firm as a partner in the Medicare claims liti- the University of Corporate Department and member of the gation, governmental Kentucky, College of Mergers & Acquisitions and Securities investigations, long- Law. He will concen- Practice Groups. She concentrates her term care investiga- trate his practice in the practice in the areas of gaming and tions and defense, and areas of trucking liti- equine law, commercial lending, limited Jennifer white-collar criminal gation and personal liability companies and partnerships and Wintergerst defense. Melton repre- Marilyn O. injury and tort legislative and regulatory initiatives. Prior sents health care pro- Patterson defense. Patterson to joining the firm, she served as the chair fessionals and entities at all stages of obtained her J.D. from of Wyatt, Tarrant & Combs Equine & investigation, prevention and litigation the University of Louisville Louis D. Gaming Practice Group. D’Angelo in administrative, civil and criminal Brandeis School of Law. She will con- earned her J.D. from the University of matters. Wintergerst concentrates her centrate her practice in the areas of Kentucky College of Law, her M.B.A. practice in the areas of Medicare and healthcare/long-term care defense, from York University Schulich School of Medicaid billing and compliance, gov- trucking litigation and insurance Business in Toronto and her B.S. from the ernmental audits and investigations, defense. University of Guelph, Ontario. Robert RAC and MIC audits and appeals, false Croft, Jr., joins the firm as an associate claims litigation, long-term care investi- Sitlinger McGlincy & in the Products Liability & Tort Practice gations and defense, and the develop- Theiler is pleased to Groups. He concentrates his practice in ment of compliance plans for announce that Willis the areas of product and premises liabil- physicians, hospitals and long term care S. Taylor has joined ity, insurance coverage issues and com- facilities. the firm as an associ- mercial litigation. Croft serves on the ate attorney. He will Alumni Executive Board for Transylvania Alina Klimkina has joined Dinsmore concentrate his prac- University and is a co-founder and former as an associate in the Labor & tice in the area of civil vice president of Kentucky Classical Employment Department. She will Willis S. Taylor litigation. Taylor Theatre Conservatory, Inc. He earned his practice in the firm’s Louisville office. received his J.D. from J.D. from the University of Kentucky Prior to joining the firm, Klimkina the University of Louisville Louis D. College of Law and his B.A. from served as a law clerk to the Honorable Brandeis School of Law in 2011. Transylvania University.

January 2012 Bench & Bar 59 WHO, WHAT, WHEN & WHERE Mary E. Schaffner is Bench and Bar Legal ness administration degree from the a partner in the Honor Society. Simon University of Kentucky in 2008. Louisville office of joined Stites & Wurdock is a native of Louisville and a Quintairos, Prieto, Harbison after partici- 2004 graduate of Ballard High School. Wood & Boyer, P.A. pating in the firm’s Wurdock is a member of the Fayette She represents summer associate pro- County and Kentucky Bar Associations. employers in all gram in 2009. Brian aspects of workers’ M. Bennett is a mem- Fuloton & Devlin, LLC, is pleased to Mary E. Schaffner compensation defense Brian M. Bennett ber of the Creditors’ announce that Natalie Laszkowski has before administrative Rights & Bankruptcy joined the firm. Laszkowski graduated bodies and trial courts. Her practice also Service Group. He earned his J.D., cum from the University of Louisville with a includes handling subrogation claims laude, from the University of Louisville Bachelor of Science degree in justice and insurance defense litigation. Since Louis D. Brandeis School of Law in administration and a minor degree in 1992, Schaffner has represented 2011. While attending law school, communication. She graduated from the employers, carriers, self-insured compa- Bennett served as a notes editor of the University of Louisville Louis D. nies and servicing agents in trials and in University of Louisville Law Review, Brandeis School of Law in 2010. Her hearings before Administrative Law was vice president of administration of practice is concentrated on workers’ Judges. She regularly appears before the the Moot Court Board, and competed compensation insurance defense. Workers’ Compensation Board, the on the Brandeis School of Law Kentucky Court of Appeals, and National Trial Team. Bennett partici- Alan C. Stout has been appointed to Supreme Court of Kentucky. Schaffner pated in Stites & Harbison’s summer the U. S. Bankruptcy bench in received her Juris Doctor from the associate program in 2009 and also Louisville, filling the seat formerly held University of Louisville Louis D. clerked with the firm during his final by Judge David T. Stosberg, who retired Brandeis School of Law in 1992 and her semester of law school, spring 2011. in October of 2011, and the late Bachelor of Arts, from Centre College. Honorable G. William Brown. Judge Schaffner is a member of the Kentucky Lloyd & McDaniel, Stout was a practicing bankruptcy attor- Bar Association. PLC, is pleased to ney in both Paducah and Marion, Ky., announce that and has served as a Chapter 7 trustee. The law firm of Stites & Harbison, Katherine S. Lloyd Judge Stout is a graduate of Murray PLLC, announced the addition of five has joined the State University and the Northern new associates to the firm. Laura S. Louisville firm in its Kentucky University Salmon P. Chase Crittenden is a mem- creditors’ rights prac- College of Law. He was admitted to ber of the Business tice. Lloyd will con- practice law in the State of Kentucky in Litigation Service Katherine S. Lloyd centrate primarily in 1981 and in Illinois in 1998. Judge Group. She earned her commercial and con- Stout is admitted to practice in the U.S. J.D. from the sumer collection matters throughout Supreme Court; the U. S. Sixth Circuit University of Kentucky. Lloyd received her law Court of Appeals; and the U. S. District Kentucky College of degree from the University of Louisville Courts for the Western and Eastern Law in 2008. During Louis D. Brandeis School of Law in Districts of Kentucky. Judge Stout has Laura S. law school, Crittenden 2011, and follows in the footsteps of her previously served as president and on Crittenden was a staff member of father, grandfather and great-grandfather. the Board of Directors of the National the Kentucky Law Association of Bankruptcy Trustees Journal. Prior to joining the firm, she Sturgill, Turner, (NABT). Judge Stout is married to was a law clerk to Judge Gregory F. Barker & Moloney, Doris Stout. They have three children Van Tatenhove, U.S. District Court, PLLC, is pleased to and two grandchildren. Eastern District of announce that Kentucky. Nathan V. Stephanie M. Strause Law Group Simon is a member of Wurdock has joined is pleased to welcome the Construction the firm as an associ- attorney Emmie L. Service Group. He ate attorney. Schulte to our firm. graduated magna cum Stephanie M. Wurdock’s practice Schulte received her laude from the Wurdock will focus on health J.D. from Thomas M. University of care litigation. Cooely Law School Alabama School of Wurdock graduated in 2011 from the and her B.A. from Nathan V. Simon Law in 2011. In law University of Kentucky College of Law, Emmie L. Schulte Texas Tech school, he served as the managing edi- where she was the articles editor of the University. Schulte tor of The Journal of the Legal Kentucky Journal of Equine, practices in family law/domestic rela- Profession, competed in the national Agriculture, and Natural Resources Law tions, administrative law, appellate Duberstein Bankruptcy Moot Court and a member of the Trial Advocacy practice, general civil litigation, per- Competition, and was a member of the Board. She earned a Bachelor of busi- sonal injury, contract law, securities

60 Bench & Bar January 2012 WHO, WHAT, WHEN & WHERE arbitration, landlord/tenant law, health Kinkead & Stilz, (Lee) Metzger III concentrates his prac- care law, and business transactions. PLLC, is pleased to tice in the areas of civil litigation, insur- Schulte clerked for Jefferson County announce that Tanya ance law, school law, personal injury, Family Court Judge Dolly Berry before M. Richardson has and civil rights. In Metzger’s insurance becoming an associate at Whonsetler & joined the firm as an law practice, he regularly defends indi- Johnson, PLLC. She is a member of the associate. Richardson viduals, business entities, and insurance Kentucky and Louisville Bar focuses her practice in companies pursuant to automobile and Associations. the areas of bank- commercial general liability insurance Tanya M. ruptcy, creditors’ policies. He also is experienced in repre- Nathaniel (“Nate”) Richardson rights and commercial senting individuals who have suffered R. Kissel is an associ- litigation. She also has personal injuries; he assists those who ate in the Lexington experience in construction litigation, are unfamiliar with the litigation office of Quintairos, contract negotiation, and health care process, providing them with sound rep- Prieto, Wood & law. She received her B.A., summa cum resentation and peace of mind. Boyer, P.A. Kissel laude, from Northern Kentucky focuses his practice on University in 2007 and her J. D., cum Reminger Co., LPA, elected attorney professional negli- laude, from the University of Illinois Emily Weaver Newman as a share- Nathaniel R. gence defense. He College of Law in 2010. holder during their annual November Kissel also has substantial shareholder meeting. Newman started experience in the Arnett Law Office, PLLC, is pleased her career with Reminger in the Toledo insolvency area, emphasizing bank- to announce Christopher M. Stearns office and now practices in the Louisville ruptcy, corporate restructuring, credi- has joined the firm as an associate attor- office. She concentrates on the defense tors’ rights, workouts and commercial ney. Arnett Law Office represents of clients in the areas of professional lia- litigation in several industries, including clients in Union, Webster, Henderson, bility, employment practices liability, retail, health care, transportation, manu- and Crittenden counties in Western medical malpractice and nursing home facturing, REITs, and financial institu- Kentucky. Stearns is a 2010 graduate of negligence. She is a member of the tions. Kissel represents financial the University of Kentucky College of American, Ohio, Michigan, Kentucky institutions and other secured creditors Law and received an MBA from the and Louisville Bar Associations. in workouts and complex Chapter 11 University of Kentucky in 2003. From reorganization cases. He also represents 2010-11 he served as a law clerk to the The Zoppoth Law many interests in Chapter 7 liquidation Hon. Squire N. Williams III in Firm in Louisville is cases, as well as individuals in both Frankfort. Stearns’ practice areas pleased to announce Chapter 7 and Chapter 13 proceedings. include domestic law, estate planning, that Amanda R. Kissel received his Juris Doctor from and civil litigation. Walker has joined the the University of Kentucky College of firm as an associate Law in 2009 and his Bachelor of Arts, Adams, Stepner, Woltermann & attorney. Walker grad- cum laude, from Centre College in Dusing, PLLC, is pleased to announce uated from the 2003. During law school, he served as that Andrew J. Vandiver and Edward Amanda R. Walker University of Notes Editor for the Kentucky Law L. Metzger III are now admitted to Louisville in 2006, Journal. He also worked as a summer practice in the State of with a Bachelor’s degree in political sci- associate and as a law clerk for two Indiana. ence. She received her J.D. from Lexington law firms. Andrew J. Vandiver Northern Kentucky University Salmon concentrates his prac- P. Chase College of Law in 2010. The Harrodsburg Law tice in the areas of Walker will concentrate her practice in Office of David A. bankruptcy, creditor’s the area of labor and employment law. Taylor is pleased to rights law, construc- announce that tion law and commer- Ian F. Koffler has Whitney Zimmerman cial litigation. He been elected as a part- has joined their office. Andrew J. routinely works with ner with Peck, Zimmerman received Vandiver small to medium sized Shaffer & Williams her B.A. in political businesses with regard LLP, a national leader Whitney science from the to facilitating and in public finance law. Zimmerman University of structuring secured He has participated in Kentucky and her J.D. transactions. Further, government financ- from the University of Kentucky College he is experienced in Ian F. Koffler ings across the of Law, where she served as online editor assisting clients with Commonwealth of for the Kentucky Law Journal. She will collecting accounts Kentucky. He advises state agencies, practice in the areas of domestic rela- receivables and other universities, counties, cities, school dis- tions, criminal defense and civil Edward L. (Lee) commercial obliga- tricts and other special districts issuing litigation. Metzger III tions. Edward L. tax-exempt traditional general

January 2012 Bench & Bar 61 WHO, WHAT, WHEN & WHERE obligation financings as well as rev- tion of applicable government benefits, English and an Associate of Arts in enue-backed financings. Koffler is a special needs, and Medicare set-aside political science. She received her Juris member of the Kenton County trusts as well as settlement planning. He Doctor in May 2011 from the University Republican Party Executive Committee also works with the Firm’s Health Care of Kentucky College of Law. Her pri- and is active in the Northern Kentucky Service Team on issues relating to mary areas of practice will be insurance Chamber of Commerce, a member of Medicare and Medicaid compliance. litigation and school board law. the Board of Directors of the Northern Prior to joining Wyatt, he was a settle- Kentucky/Greater Cincinnati chapter of ment planning consultant as well as gen- Miller & Wells PLLC the UK Alumni, and an elder at eral counsel and compliance officer for is pleased to announce Lakeside Presbyterian Church. Koffler FORGE Consulting, LLC. Wayne that Garland “Andy” earned his bachelor’s degree in 1999 at earned his undergraduate degree at Barr has joined their the Jepson School of Leadership Miami University (Ohio) and received firm. Barr concentrates Studies at the University of Richmond, his J.D. from Northern Kentucky his practice in the a master’s in public administration in University Salmon P. Chase College of areas of government 2001 from the University of Kentucky’s Law. He was chair of the Young incentive procurement, Martin School of Public Policy and Lawyers Section of the Louisville Bar Andy Barr tax exempt debt Administration, and his law degree in Association (LBA) in 2008-2010 and financing, government 2004 from the University of Kentucky was recognized as Chair of the Year of entity defense, government relations, College of Law. the LBA in 2010. Wayne is active on the administrative law, commercial litiga- boards of the Louisville Bar Association, tion, real estate and energy law. He is a Casey Marie Keller the Metropolitan Housing Coalition, the part-time instructor at Morehead State joined Miller & Wells Main Street Association, and the University where he teaches constitu- PLLC after practicing Louisville Asset Building Coalition. tional law and administrative law. In for nearly four years at 2010, Barr was the Republican nominee the firm of Chaffin, Fowler Measle & Bell PLLC is for the U.S. House of Representatives in Burnsed & Blackburn pleased to announce the following three Kentucky’s Sixth Congressional District. in Nashville. Keller attorneys have joined the firm: Prior to his current employment, he practices primarily in served as deputy general counsel to for- Casey M. Keller the areas of corporate C. Jane Harrison has joined the firm as mer Governor Ernie Fletcher. and commercial litiga- of counsel. Harrison received her tion, estate planning and probate adminis- Bachelor of Arts from Vassar College, a Rebecca L. Didat is a partner in the tration, commercial finance transactions, Juris Doctor from the University of Louisville office of Quintairos, Prieto, and bankruptcy. She has extensive experi- Arkansas in Little Rock, and an LL.M. Wood & Boyer, P.A. Didat’s litigation ence in the protection and enforcement of in taxation from the University of practice is mainly focused in the repre- creditor rights and remedies in both state Florida. Her portfolio includes patents, sentation of the health care industry and and federal courts, including judicial and trademarks, copyrights, and corporate also includes general liability and civil nonjudicial foreclosures, domestication of law. She worked for a global biotechnol- litigation, including breach of contract, foreign judgments, evictions, bank levy ogy company prior to joining Fowler. premises liability, and personal injury and garnishment proceedings, reposses- actions. Prior to joining QPWB, Didat sion of collateral, attachment and recov- Matthew C. was an attorney with two Louisville law ery of personal property, and pursuit of Cocanougher has firms focusing in health care litigation, claims against decedents’ estates. She joined Fowler Measle medical negligence, products liability graduated magna cum laude from the & Bell PLLC as an and personal injury. Didat received her University of Kentucky with a B.A. in associate. Juris Doctor, magna cum laude, from the English in 2004 and earned her J.D from Cocanougher received University of Louisville Louis D. the University of Kentucky College of his Bachelor of Arts Brandeis School of Law in 1994 and a Law in 2007, where she was a member of from Centre College Bachelor of Science in physical therapy the Moot Court Board. Keller is a mem- Matthew C. in English and his from Indiana University in 1985. Didat ber of both the Tennessee and Kentucky Cocanougher Juris Doctor in May, is a member of the Kentucky Bar Bar Associations. 2011 from the Association, Indiana Bar Association, University of Kentucky Defense Counsel, and the Wyatt, Tarrant & Kentucky College of National Institute of Trial Advocacy Combs, LLP, is Law. His primary (Trial School Graduate). pleased to welcome areas of practice will Peter Wayne to its be collections and liti- Special Needs and gation. Tia J. Combs IN THE NEWS Government Benefit joined the firm as an Bingham Greenebaum Doll LLP is Analysis practice. Tia J. Combs associate. Combs pleased to announce that Robert L. Wayne focuses his received her Bachelor Brown, a member in the firm’s Peter Wayne practice on the evalua- of Arts from Thomas More College in Louisville office, has been elected

62 Bench & Bar January 2012 WHO, WHAT, WHEN & WHERE chair of the World Trade Center Stites & Harbison, access to the judicial system, provide Kentucky (WTC-KY). Brown previ- PLLC, announced that law-related services to the community ously served as Vice-Chair of the Ken Sagan has been and to serve its members. The LBA has WTC-KY. The WTC-KY is an interna- elected as its new 18 practice-focused sections, including tional business organization helping chair. Sagan will suc- the Intellectual Property Section. The Kentucky companies with their export, ceed Kennedy Helm section leadership hosts regular meetings import and overseas operations through III, who has served as and plans Continuing Legal Education consulting, trade missions and trade the firm’s chair for 15 programs for their members. He is a education. An affiliate of the World Ken Sagan years and who will member of Greenebaum’s Intellectual Trade Center’s Association in New become chair-emeri- Property Practice Group and a member York, WTC-KY’s network encom- tus. Sagan assumed his new position of of the Life Sciences and Health and passes a global reach of over 300 the 250-attorney firm following the Insurance teams. A registered patent World Trade Centers in 100 countries. firm’s annual meeting in January. Sagan attorney, he concentrates his practice in Through its business partnership with is a business lawyer who has spent his patent and trademark prosecution, both the Kentucky Chamber of Commerce, entire legal career with Stites & in the U.S. and internationally. Dr. Kentucky Cabinet for Economic Harbison beginning in 1983. He has Chellgren received his B.S. from Development and the U.S. Commercial practiced in both the Louisville and Vanderbilt University, his Ph. D. from Service, this global reach is expanded, Lexington offices. Sagan has held a the University of Kentucky College of providing its clients even greater number of leadership positions within Medicine and his J.D. from the access to resources for their interna- the firm as a member of the University of Kentucky College of Law. tional operations. Brown is a member Management Committee, as chair of the of Greenebaum’s Corporate and Business & Finance Service Group and Pomeroy, a leader in optimizing IT Commercial Practice Group and is the executive member of the Lexington infrastructure, announced that Kristi firm’s International Team Chair and Office, succeeding Steve Beshear. Nelson, its general counsel and senior China Team Chair. vice president of human resources, is a Bingham Greenebaum Doll LLP is finalist for the Cincinnati USA Regional Fowler Measle & pleased to announce that Carolyn M. Chamber’s WE Celebrate “Woman of Bell PLLC is pleased Brown has been named deputy chair- the Year – Corporate” award. to announce person of the firm’s Lexington office. The WE Celebrate awards honor Elizabeth S. Brown succeeds David A. Owen, who women and women-owned businesses Feamster, member, has managed the firm’s Lexington office for their achievement, innovation, social has been appointed to for the past five years. Brown also responsibility and mentoring. As gen- the Kentucky Board serves as chair of the firm’s eral counsel and senior vice president of of Bar Examiners. Environment, Energy & Natural human resources, Nelson is responsible Elizabeth S. She will serve as a Resources Practice Group. Her practice for the overall management of Feamster member of the board focuses on all areas of environmental Pomeroy’s legal affairs, human for a three-year term. law and includes advice and counseling resources organization and its corporate The Kentucky Office of Bar on regulatory requirements, permitting facilities in North America. She is board Admissions is the agency responsible and transactional issues as well as envi- chair of the Kentucky Higher Education for the admissions of persons to the ronmental litigation. Brown received Assistance Authority and the Kentucky practice of law in the Commonwealth her bachelor’s degree from the Higher Education Student Loan of Kentucky and the board was created University of Kentucky and her law Corporation. She serves on the board by the Kentucky Supreme Court to degree from the University of Kentucky for the Northern Kentucky University administer the bar process through College of Law. Foundation and The Boone which persons seeking to become Conservancy. Nelson is also a member admitted may prove their eligibility. Bingham Greenebaum Doll LLP is of Kindervelt, a volunteer auxiliary of Feamster is a member in the firm’s pleased to announce that Brian W. Cincinnati Children’s Hospital Medical Litigation Group with extensive expe- Chellgren has been elected to serve as Center, and The Advocates, a fundrais- rience in litigation and appellate work. co-chair of the Louisville Bar ing group for the Northern Kentucky Her practice focuses on bad faith, Association’s (LBA) Intellectual Children’s Advocacy Center. insurance coverage liability, malprac- Property Section for the 2012 calendar tice defense, products liability, and year. Dr. Chellgren currently serves as nursing home defense. Her appellate the section’s chair-elect. With a member- experience includes cases heard before ship of more than 3,400, the LBA is all courts in the Commonwealth of among the 40 largest local bars in the Kentucky, the United States District country and is the oldest continuously CLICK Courts for the Eastern and Western operating bar association in Kentucky. Districts of Kentucky, the Sixth Circuit The mission of the LBA is to promote Court of Appeals, and the United justice, professional excellence and www.kybar.org States Supreme Court. respect for the law, improve public

January 2012 Bench & Bar 63 WHO, WHAT, WHEN & WHERE O’Hara, Ruberg, tration. Coughlin received her bache- counsel in more than 50 jury trials, and Taylor, Sloan and lor’s degree, magna cum laude, from also serves as outside general counsel Sergent are pleased to Western Kentucky University, her for several businesses. announce that partner Master of Social Work degree, honors Stephanie Dietz has graduate, from Spalding University and Bingham Greenebaum Doll LLP is been elected to the her law degree, magna cum laude, from pleased to announce that Peggy B. Board of Directors, the University of Louisville Louis D. Lyndrup, a member in the firm’s and associate Jenna Brandeis School of Law. Louisville office, has been re-elected to Stephanie Dietz Scholl has been the board of directors of TerraLex, a elected chair of the The Supreme Court of global legal network of independent law Young Lawyers Kentucky has firms. Lyndrup has served on the Section of the appointed Stites & TerraLex board since 2006. TerraLex has Northern Kentucky Harbison attorney 160 member law firms in 100 countries Bar Association. Both Beth Breetz to the and 45 U.S. states, and is the one of the Dietz and Scholl con- Civil Rules Committee largest international legal networks. centrate their prac- and as the chair of the Lyndrup is chair of Greenebaum’s tices in domestic Appellate Rules Corporate and Commercial Practice Jenna Scholl relations. Beth Breetz Subcommittee. During Group. She represents numerous pub- 2012, the Civil Rules licly and privately held corporations in Fowler Measle &Bell Committee will focus on Appellate U.S. and international transactions. PLLC is pleased to Rules. The Appellate Rules subcommit- Lyndrup has over 25 years of experience announce that Taft A. tee is working on a complete overhaul of working with manufacturing and service McKinstry, managing the appellate rules, including breaking corporations in corporate and commer- member, has been them out of the Kentucky Rules of Civil cial matters. Lyndrup received her J.D., appointed to serve on Procedure to create stand-alone appellate summa cum laude, from the University the University of rules. The Civil Rules Committee is of Louisville Louis D. Brandies School Kentucky College of comprised of 12-14 members, including of Law, and was valedictorian of her Taft A. McKinstry Law Visiting judges, lawyers, and representatives class. She is also a past president of the Committee. The visit- from the circuit court clerk. Breetz is Louisville Bar Association. ing committee includes active alumni counsel to Stites & Harbison, PLLC, from government, legal and business based in the Louisville office. She is a James H. Frazier, III, managing mem- sectors. The members meet regularly member of the firm’s Business ber of McBrayer, McGinnis, Leslie & with the dean, faculty and students of Litigation Service Group and co-chair of Kirkland, PLLC, has been elected to the the college to discuss and provide guid- the Appellate Advocacy Group. Her Commerce Lexington Inc. Board of ance to the University of Kentucky practice focuses on both federal and Directors to serve a three-year term College of Law. McKinstry leads the state appellate advocacy, complex com- beginning in 2012. Bankruptcy, Financial Restructuring and mercial litigation, including financial Workout practice group for Fowler institution, real estate, and trust and Brady Dunnigan, a Measle & Bell PLLC and has over 30 estate litigation. Breetz was the first partner in Dinsmore’s years of experience before the Federal chair of the Kentucky Bar Association’s Lexington office, was and Bankruptcy Courts in Kentucky. Appellate Advocacy Section when that recently appointed to section was established by the Kentucky the Kentucky Applied Bingham Greenebaum Doll LLP, is Supreme Court in 2007. She is a past Behavior Analyst pleased to announce that Michelle chair of the Louisville Bar Association’s Licensing Board by Browning Coughlin, an associate in the Appellate Section. Gov. Steve L. firm’s Louisville office, has been Brady Dunnigan Beshear. The Board is appointed to the Board of Directors for Middleton Reutlinger responsible for over- Maryhurst, a local non-profit organiza- attorney Hiram Ely seeing the licensure of mental health tion that cares for abused and neglected III recently became a professionals seeking to practice children. Coughlin is a member of listed neutral for the Applied Behavioral Analysis, a method Greenebaum’s Intellectual Property American Arbitration of therapy for people with development Practice Group and the firm’s Life Association. Ely, a disabilities, most notably autism spec- Science and Health and Insurance certified mediator and trum disorders. Dunnigan, whose twin Teams. Coughlin, who has a biochem- arbitrator, is also a sons are diagnosed autistic, will serve istry degree and a healthcare back- Hiram Ely III listed neutral for the on the board for a three-year term. ground, focuses in the life sciences area. American Health Dunnigan practices primarily in the Her practice includes intellectual prop- Lawyers Association, and has served as areas of commercial lending and real erty, technology and domain names. She a judicially appointed arbitrator as well. estate, as well as general business law also works in the areas of privacy, He has more than 35 years of business and mergers & acquisitions. He earned research funding, and research adminis- litigation experience, including as lead his J.D. from the University of

64 Bench & Bar January 2012 WHO, WHAT, WHEN & WHERE Louisville Louis D. Brandeis School of of community work for the good of all; continue to maintain a general practice Law and his B.A. from the University having a history of diverse community of law with an emphasis on family law. of Kentucky. service, and whose service goes beyond The firm’s phone number will remain job related responsibilities. In addition, (502) 515-2889. Bingham Greenebaum Doll LLP is the award winner demonstrates leader- pleased to announce that Eric L. Ison, a ship through community visibility, sup- Jessica L. Newman of Newman Law member in the firm’s Louisville office, port of women’s issues, and acting as a Office, PLLC, is pleased to announce has been re-appointed chairman of the role model (both professionally and the relocation of her office to 208 Main Kentucky Board of Bar Examiners by socially). Wolf, board-certified by the Street, Irvine, KY., 40336. Newman the Kentucky Supreme Court. One Florida Bar as a specialist in labor and Law Office, PLLC focuses on bank- attorney from each of the state’s seven employment law, has practiced in the ruptcy, debtor-creditor litigation, judicial districts is appointed to the area since 1976. Her practice is devoted domestic relations, real property litiga- board, which is responsible for adminis- to providing management with the nec- tion, estate planning and probate. tering the bar examination in Kentucky. essary tools to meet the challenges in Ison, who has served as a member of today’s employment arena, through Jon R. Fritz is pleased the board for 14 years, was named proactive legal advice, training, and liti- to announce the open- chairman in 2005. Ison concentrates his gating complex cases in both trial and ing of his new law legal practice in commercial litigation, appellate courts. Wolf is a certified office, Fritz Law in state and federal courts, at the trial mediator in Florida’s circuit courts and Firm PLLC. Located and appellate levels. He received his in the U.S. Middle District of Florida. in Webster County, the bachelor’s degree from the University She also serves as an arbitrator. She firm is a full-service of the South and his law degree from received her J.D. from University of general law practice Vanderbilt School of Law. Louisville Louis D. Brandeis School of Jon R. Fritz focusing on commer- Law in 1975. cial litigation and busi- Mayor Jim Gray has ness transactions. Prior to opening the appointed Morgan & Bingham Greenebaum Doll LLP is firm, Fritz was a senior associate in the Pottinger’s Scott pleased to announce that Mark A. Litigation and Dispute Resolution Group White to the Loyd, a member in the firm’s at Clifford Chance LLP’s Washington, Lexington-Fayette Louisville office, has authored a chapter D.C. office. He also served as general County Health in Aspatore Books’ 2011 Edition of counsel and head of Corporate Department’s Board of Inside the Minds: Strategies for Compliance for Driven, Inc., a northern Health. As a board Corporate Tax Planning. Loyd’s chap- Virginia based litigation support company, Scott White member, White will ter is titled, “Throw Out the Mold and vice president of Planning and help determine the When Discerning Effective State and Compliance for Renshaw Automotive long-range planning goals for the health Local Tax Strategies for Businesses.” Group’s dealerships in Bowling Green, department and that the board’s policies The Inside the Minds series, by Hopkinsville, and Paducah. Fritz earned and goals are implemented. His term Aspatore Books, was conceived in order his law degree from the University of runs through June 30, 2012. White heads to give readers actual insights into the Kentucky College of Law in 1998. He is M&P’s Litigation Practice Group and leading minds of top lawyers and busi- licensed to practice before the United the firm’s criminal law practice, which ness executives worldwide. Loyd is States Supreme Court, District of focuses on “white collar” crimes such as chair of Greenebaum’s State and Local Columbia Court of Appeals, United States personal and business tax avoidance, Tax Team and is a member of the firm’s District Courts for the Eastern and fraud, complex conspiracies and RICO. Tax and Finance Practice Group. His Western Districts of Kentucky, and areas of practice concentration are state, Kentucky Supreme Court. Fritz is a mem- Ford & Harrison LLP, local and federal tax controversy resolu- ber of the Honorable Order of Kentucky a national labor and tion, litigation and planning. Loyd Colonels and Kentucky Academy of employment law firm, received his bachelor’s degree from Governor’s Scholars. His office is located is pleased to Bellarmine College, his MBA from the at 260 State Route 109 S., Clay, KY., announce that The University of Louisville and his J.D. 42404, and he can be reached at (202) Central Florida from the University of Louisville Louis 251-5746 or [email protected]. Women’s Resource D. Brandeis School of Law. Center has presented U.S. Attorney David J. Hale would Kay L. Wolf their prestigious RELOCATION like to announce that the United States Summit Award to Attorney’s Office for the Western Orlando-based partner Kay L. Wolf. Bornstein & Bornstein, P.S.C. has District of Kentucky has moved its The award was presented on October relocated to 4018 Bishop Lane in Louisville office to 717 West 18 at the Orlando Museum of Art. Louisville. H. Edwin Bornstein will Broadway, Louisville, KY., 40202 as of Awards are given to women who have continue to concentrate his practice in Jan. 17, 2012. The telephone number contributed to the Central Florida com- the areas of construction litigation and remains unchanged at (502) 582-5911. munity by performing countless hours business law. Robert J. Bornstein will

January 2012 Bench & Bar 65 John B. Adams practices law in Brian D. Cook practices law in Somerset with the law firm of Adams & Louisville with the law firm of Bahe, Venters. A graduate of the University of Cook, Cantley & Nefzger. A graduate of Kentucky and Northern Kentucky Centre College of Kentucky and Emory Kentucky University Chase College of Law, he University School of Law, he was was admitted to the Kentucky Bar in admitted to the Kentucky Bar in 2002. Bar 1998. Mr. Adams is a Life Fellow. Mr. Cook is a Life Fellow. Norma B. Adams, retired, practiced Robert H. Cornett practices law in law in Somerset with the law firm for- Georgetown. A graduate of Georgetown Foundation merly known as Adams & Adams. A College and the University of Kentucky graduate of Western Kentucky College of Law, he was admitted to the University and the University of Kentucky Bar in 1980. Welcomes Kentucky College of Law, she was admitted to the Kentucky Bar in 1953. William G. Craig, Jr. practices law in She served as Business Manager and Owensboro. A graduate of Centre Note Editor of the Kentucky Law College of Kentucky and Harvard Law New Journal prior to graduating from law School, he was admitted to the Kentucky school. Ms. Adams is a Life Fellow. Bar in 1973. Mr. Craig is a Life Fellow. Fellows John A. Bahe, Jr. practices law in Scott K. Crocker of Bowling Green Louisville with the law firm of Bahe, currently serves as Executive Director Cook, Cantley & Nefzger. A graduate of of Kentucky Legal Aid. A graduate of Centre College of Kentucky and the the University of Kentucky and the Our deepest University of Louisville Brandeis University of Kentucky College of Law, appreciation goes to School of Law, he was admitted to the he was admitted to the Kentucky Bar in Kentucky Bar in 2002. Mr. Bahe is a 1977. these distinguished Life Fellow. members of the Richard A. Cullison of Covington cur- Delores Woods Baker practices law in rently serves as Executive Director of Kentucky Bar for their Maysville. A graduate of Murray State Legal Aid of the Bluegrass. A graduate of University and the University of Earlham College and Northern Kentucky financial support Kentucky College of Law, she was University Chase College of Law, he was of the Foundation’s admitted to the Kentucky Bar in 1984. admitted to the Kentucky Bar in 1976 charitable efforts. Ms. Baker is a Life Fellow. and is also a member of the Ohio Bar. Bennett E. Bayer practices law in David Curd of Tempe, Arizona current- Lexington with the law firm of Landrum ly serves as President of Harrison & Shouse. A graduate of the University Middleton University. A graduate of of Kentucky and the University of Arizona State University and Drake Kentucky College of Law, he was admit- University Law School, he was admitted ted to the Kentucky Bar in 1982. to the Kentucky Bar in 1975. Dr. Curd is a Life Fellow. Jeffrey A. Been of Louisville currently serves as Executive Director of the Philip G. Fairbanks practices law in Legal Aid Society, Inc. A graduate of Lexington with the Austin Mehr Law Wabash College and Indiana University Offices. A graduate of the University of School of Law, he was admitted to the Kentucky and the University of Kentucky Bar in 1990 and is also a Kentucky College of Law, he was member of the Indiana Bar. admitted to the Kentucky Bar in 2007.

Bradley A. Case practices law in Alison Lundergan Grimes of Louisville with the law firm of Lexington currently serves as Dinsmore & Shohl. A graduate of the Kentucky’s 76th Secretary of State. A University of Kentucky and the graduate of Rhodes College and University of Louisville Brandeis Washington College of Law at School of Law, he was admitted to the American University, she was admitted Kentucky Bar in 1995. to the Kentucky Bar in 2004. Catherine Rice Holderfield of of Denton & Keuler. A graduate of Kentucky Bar in 1996. Mr. Reynolds is Bowling Green currently serves as Murray State University and Ohio a Life Fellow. Warren Circuit Court Judge, Family Northern University Pettit College of Division. A graduate of Murray State Law, he was admitted to the Kentucky Bruce M. Reynolds practices law in University and the University of Bar in 2008. Mr. Matheny is a Life Lexington with the law firm of Stites & Kentucky College of Law, she was Fellow. Harbison. A graduate of the University admitted to the Kentucky Bar in 1991. of Kentucky and the University of Christopher D. Minix practices law in Kentucky College of Law, he was Rhonda Wright Huddleston of Bowling Green. A graduate of Western admitted to the Kentucky Bar in 1971. Louisville currently serves as SVP & Kentucky University and Southern Mr. Reynolds is a Life Fellow. General Counsel for Citizens Union Illinois University School of Law, he Bank of Shelbyville. A graduate of the was admitted to the Kentucky Bar in Don W. F. Rodgers of Louisville serves University of Kentucky and the 2007. as an Assistant Public Advocate. A grad- University of Kentucky College of uate of the University of the South and Law, she was admitted to the Kentucky Mark E. Nichols practices law in the University of Louisville Brandeis Bar in 1978. Ms. Huddleston also cur- Lexington with the law firm of School of Law, he was admitted to the rently serves as a member of the Wellman, Nichols & Smith. A graduate Kentucky Bar in 2009. Mr. Rodgers is a Kentucky IOLTA Fund Board of of Asbury College and the University of Life Fellow. Trustees. Kentucky College of Law, he was admitted to the Kentucky Bar in 1988 Kenneth R. Sagan practices law in Brandon C. Jones practices law in and is also a member of the Tennessee Lexington with the law firm of Stites & London with the law firm of Hamm, Bar. Mr. Nichols is a Life Fellow. Harbison. A graduate of the University Milby & Ridings. A graduate of the of Kentucky and the University of University of Kentucky and Capital Mary C. Noble of Lexington currently Kentucky College of Law, he was University Law School, he was admit- serves as Justice of the Kentucky admitted to the Kentucky Bar in 1983. ted to the Kentucky Bar in 2001. Mr. Supreme Court representing the 5th Jones is a Life Fellow. Supreme Court District. In 2010, Chief Jonathan C. Shaw practices law in Justice John Minton appointed her Paintsville with the law firm of Porter, Donald L. Jones practices law in Deputy Chief Justice. She formerly Schmitt, Banks & Baldwin. A graduate Paintsville. A graduate of Union College served as Chief Judge of the Fayette of Morehead State University and the and Northern Kentucky University Circuit Court. A graduate of Austin University of Louisville Brandeis School Chase College of Law, he was admitted Peay State University and the of Law, he was admitted to the Kentucky to the Kentucky Bar in 1983. University of Kentucky College of Law, Bar in 1999. Mr. Shaw currently serves Justice Noble was admitted to the as a member of the Kentucky Bar John F. Kelley, Jr. practices law in Kentucky Bar in 1982. Foundation Board of Directors. London with the law firm of Kelley, Brown & Breeding. A graduate of the Kim O’Donnell practices law in Carson W. Smith practices law in University of Virginia and the Lexington with the law firm of Stoll Lexington with the Billings Law Firm. University of Virginia School of Law, Keenon Ogden. A graduate of the A graduate of the University of he was admitted to the Kentucky Bar University of Kentucky and the Kentucky and the University of Dayton in 1979. University of Kentucky College of Law, School of Law, he was admitted to the she was admitted to the Kentucky Bar Kentucky Bar in 2009. Susan Coleman Lawson practices law in 2008. in Pineville with the law firm of Richard L. Walter practices law in Lawson & Lawson. A graduate of the Clayton O. Oswald practices law in Paducah with the law firm of Boehl, University of Kentucky and the London with the law firm of Taylor, Stopher & Graves. A graduate of the University of Kentucky College of Keller & Oswald. A graduate of University of Kentucky and the Law, she was admitted to the Kentucky Eastern Kentucky University and the University of Kentucky College of Law, Bar in 1979. Ms. Lawson currently University of Kentucky College of he was admitted to the Kentucky Bar in serves on the Character & Fitness Law, he was admitted to the Kentucky 1980. Committee of the Office of Bar Bar in 2004. Admissions, and is also a member of G. Davis Wilson practices law in Paris the Kentucky Bar Foundation Board of Brett A. Reynolds practices law in with the law firm of Overly & Johnson. Directors. Ms. Lawson is a Life Bowling Green with the law firm of A graduate of the University of Fellow. English, Lucas, Priest & Owsley. A Mississippi and the University of graduate of Centre College of Kentucky Louisville Brandeis School of Law, he Jackie Madison Matheny, Jr. prac- and the University of Kentucky College was admitted to the Kentucky Bar in tices law in Paducah with the law firm of Law, he was admitted to the 2005. Looking for Upcoming KBA Accredited CLE Events?

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68 Bench & Bar January 2012 Great Place to Start Resource Center for New Attorneys in Kentucky

Kentucky’s New Attorneys Need Your Help! Become a Mentor or Volunteer Advisor

The KBA welcomes volunteers in support of its new Find a Mentor service through which new attorneys may connect with more experienced attorneys listed by practice area and location for in-person mentoring and support. The service is a part of the Great Place To Start (GPS) resource hub for new attorneys that will also include a Lawyer to Lawyer service that will allow new Kentucky attorneys to ask questions of more experienced “Attorney Advisors” via e-mail and/or telephone. The new services will be available only to bar members who register through the KBA and who have been licensed for less than five years.

If you are interested in becoming a Mentor and/or an Attorney Advisor, please visit http://kbagps.org/find- a-mentor/become-a-mentor and http://kbagps.org/ lawyer-to-lawyer/become-a-volunteer.

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72 Bench & Bar January 2012 The New Casemaker . . . changing legal research in Kentucky

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And now, the New Casemaker has been completely updated to give you state-of- the-art, Google-like search capabilities THE LEADER IN LEGAL RESEARCH and much more! June 6-8, 2012 • Galt House Hotel • Louisville, Kentucky

Preparing For Our Future Kentucky Bar Association 2012 Annual Convention