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This issue of the Kentucky Bar CONTENTS Association’s Bench & Bar was published in the month of March. 50th Anniversary of Gideon v. Wainwright Communications & Publications Committee Frances Catron Cadle, Chair, Lexington 7 Hugo’s Trumpet Paul Alley, Florence Elizabeth M. Bass, Lexington By Luke M. Milligan Zachary M.A. Becker, Frankfort James P. Dady, Bellevue 11 The History of the Right to Counsel for the Judith D. Fischer, Louisville Indigent Accused in Kentucky Cathy W. Franck, Crestwood William R. Garmer, Lexington By Robert C. Ewald, Daniel T. Goyette, P. Franklin Heaberlin, Prestonsburg Erwin W. Lewis, Edward C. Monahan Judith B. Hoge, Louisville Bernadette Z. Leveridge, Jamestown Theodore T. Myre, Jr., Louisville 19 The Cost of Representation Compared to the Cost of Eileen M. O’Brien, Lexington Incarceration: How Defense Lawyers Reduce the Richard M. Rawdon, Jr., Georgetown Costs of Running the Criminal Justice System Sandra J. Reeves, Corbin E.P. Barlow Ropp, Glasgow By John P. Gross and Jerry J. Cox R. Kelley Rosenbaum, Lexington Gerald R. Toner, Louisville 24 Lawyers are Essential in Making “Justice for All” Sadhna True, Lexington Michele M. Whittington, Frankfort A Reality By Chief Justice John D. Minton, Jr. Publisher John D. Meyers Columns Editor Frances Catron Cadle 3 President’s Page By W. Douglas Myers Managing Editor Shannon H. Roberts 6 YLD By Jackie Sue Wright Layout 26 Shop Talk By Michael Losavio David Kaplan • [email protected] The Bench & Bar (ISSN-1521-6497) is 27 Effective Legal Writing By Phillip M. Sparkes published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, Items of Interest KY 40601-1812. Periodicals Postage paid at Frankfort, KY and additional mailing offices. All manuscripts for publication should be 4 2013 Annual Convention Overview sent to the Managing Editor. Permission is 30 Attorneys Who Reported 50 or More Pro Bono Hours granted for reproduction with credit. 32 Ethics Opinion KBA E-434 Publication of any article or statement is not 34 Ethics Opinion KBA E-435 to be deemed an endorsement of the views 36 Unauthorized Practice of Law Opinion KBA U-64 expressed therein by the Kentucky Bar Association. 37 Information from Kentucky Bar Association’s Audit Subscription Price: $20 per year. Members 38 Resolution subscription is included in annual dues and is 40 Judicial Ethics Opinion JE-123 not less than 50% of the lowest subscription 43 Order Amending Rules of the Supreme Court (SCR) price paid by subscribers. For more informa- 44 Kentucky Bar News tion, call 502-564-3795. 48 KYLAP To Partner with LMICK for Ethics Program POSTMASTER 49 In Memoriam Send address changes to: 50 Kentucky Bar Foundation Bench & Bar 51 CLE 514 West Main Street 58 Who, What, When & Where Frankfort, KY 40601-1812 Cover photos reprinted with permission courtesy of the State Archives of Florida. job_target.qxd 10/29/12 10:16 AM Page 1
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Job Seeker Bene ts $FFHVV WR KLJK TXDOLW\ UHOHYDQW MRE SRVWLQJV 1R PRUH ZDGLQJ WKURXJK SRVWLQJV WKDW DUHQ¶W DSSOLFDEOH WR \RXU H[SHUWLVH 3HUVRQDOL]HG MRE DOHUWV QRWLI\ \RX RI UHOHYDQW MRE RSSRUWXQLWLHV &DUHHU PDQDJHPHQW ± \RX KDYH FRPSOHWH FRQWURO RYHU \RXU SDVVLYH RU DFWLYH MRE VHDUFK 8SORDG PXOWLSOH UHVXPHV DQG FRYHU OHWWHUV DGG QRWHV RQ HPSOR\HUV DQG FRPPXQLFDWH DQRQ\PRXVO\ ZLWK HPSOR\HUV $QRQ\PRXV UHVXPH EDQN SURWHFWV \RXU FRQ¿GHQWLDO LQIRUPDWLRQ PRESIDENT’S PAGE RIGHT TO COUNSEL – CELEBRATING 50 YEARS OF GIDEON V. WAINWRIGHT Doug Myers “If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell . . . to write a letter to the Supreme Court . . . the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write the letter, the Court did look into the case . . . and the whole course of American legal history has changed” – Robert F. Kennedy ometime in the early morning of therefore, his Sixth Amendment rights, lawyers. We must endorse those SJune 3, 1961, a burglary occurred at as applied to the states by the requirements and advocate their the Bay Harbor Pool Room in Panama Fourteenth Amendment, had been implementation in Kentucky’s justice City, Fla. The burglar broke a door, violated. system. smashed a cigarette machine and a The Supreme Court assigned him a It is my pleasure to join in the record player, and stole money from a prominent Washington, D.C., attorney, celebration of this anniversary of the cash register. Police arrested Clarence Abe Fortis, of the law firm of Arnold, Gideon decision. I must point out, Earl Gideon after he was found near the Fortis & Porter, and a future Supreme however, that it is the responsibility of scene with a pint of wine and some Court Justice. The Court, after hearing all the members of the Kentucky Bar change in his pockets. Later that day, a arguments, unanimously ruled in Association (KBA) to take steps to witness reported that he had seen Gideon’s favor stating that the Sixth promote the right to counsel and make it Gideon in the pool room at around 5:30 Amendment requires state courts to meaningful for all citizens of the a.m. Based on these facts, the police provide attorneys for criminal Commonwealth. This right to counsel is arrested Gideon and charged him with defendants who cannot otherwise afford threatened any time we have inadequate breaking and entering with intent to counsel. funding for our public defender system. commit petty larceny. The final decision was announced on Also of significance is the woeful lack Gideon, who could not afford a March 18, 1963. We are now of funding support for payment of lawyer, asked the Florida circuit judge celebrating 50 years of the “right to conflict counsel to augment the public to appoint one for him arguing that the counsel” in the United States as defender system. Sixth Amendment entitles everyone to a guaranteed by the Sixth Amendment. The mission of the KBA includes the lawyer. His request was denied. Gideon, Many changes have come about in responsibility to promote the efficiency therefore, was forced to act as his own the prosecution and representation of and improvement of the judicial system. counsel and conduct the defense at his indigent defendants since the ruling in This requires us to make efforts to trial. Gideon was unsuccessful in his Gideon. The decision in many ways assure the right to counsel to all defense and was found guilty of created and in other ways expanded the citizens, no matter their financial breaking and entering and petty larceny. public defender system. The need for circumstance. The quality of justice in He was sentenced to five years in the more resources for public defenders in our courts will suffer, and the needs and state prison. order to comply with the mandate of interests of judges, prosecutors, victims While serving his sentence in the Gideon has not been met, especially in and the indigent accused will be Florida State Prison, Gideon began the areas of case loads and staffing, jeopardized unless the public defender studying law. His studies reaffirmed his notably those with the unique training system is adequately funded, staffed and belief that his rights were violated and qualifications necessary for the supported. As lawyers, we must take when the Florida Circuit Court refused proper defense of capital cases. The appropriate steps to support funding his request for counsel. From his American Bar Association and the efforts. prison cell, he handwrote a petition National Legal Aid and Defender While we celebrate the Gideon asking the United States Supreme Association have now set minimum decision and the affirmation of the right Court to hear his case. He argued that training requirements, case load levels, to counsel for all defendants, we must he had been denied counsel and, and experience requirements for its remain vigilant to protect this right. March 2013 Bench & Bar 3 AC_March.qxd 3/15/13 12:25 AM Page 4 2013 KBA Annual C KBA 2013 ANNUAL CONVENTION: “PRESERVING JUSTICE,” JUNE 19-21, GALT HOUSE HOTEL, LOUISVILLE The Kentucky Bar Association will oer a wide variety of CLE programming of interest to practitioners across the Commonwealth during its 2013 Annual Convention at the Galt House Hotel in historic downtown Louisville, Wednesday, June 19, through Friday, June 21. This year’s convention theme, “Preserving Justice,” recognizes the importance of adequate funding for state courts; the 40th anniversary of the creation of the Kentucky Department of Public Advocacy in 2012; and this year’s 50th anniversary of the Supreme Court of the United States’ landmark decision in Gideon v. Wainwright requiring state courts to provide counsel in criminal cases for indigent defendants. The 2013 convention will showcase three excellent featured programs organized through the dedicated eorts of the KBA Convention CLE Committee chaired by Richard Hay of Somerset. Additionally, the KBA extends its thanks to the 2013 Annual Convention Planning Committee Co-Chairs John Bilby, Douglass Farnsley, and Bobby C. Simpson, all of Louisville, for their leadership in guiding the committee in preparation for what promises to be an educational, exciting and entertaining event. DAVID BOIES AND THEODORE B. OLSON TO SERVE AS FEATURED SPEAKERS ON OPENING DAY Famed litigators David Boies and Theodore B. Olson will serve as the featured speakers on Wednesday, June 19, the rst day of the KBA’s 2013 Annual Convention. The two men, once adversaries in the case of Bush v. Gore, have teamed in recent years to represent the plaintis in the historic civil rights litigation concerning California’s Prop 8 same-sex marriage ban. The case, Hollingsworth v. Perry, will be argued before the Supreme Court of the United States on March 26. In 2010, Time Magazine selected Boies and Olson as two of the 100 most inuential people in the world. Additionally, in 2011, the two men received the American Bar Association’s highest award, the ABA Medal, recognizing “exceptionally distinguished service by a lawyer or lawyers to the cause of American jurisprudence.” Boies is the founder and chairman of Boies, Schiller & Flexner LLP, in Armonk, N.Y. In 1998-2000, Boies served as special trial counsel for the U.S. Department of Justice in its antitrust suit against Microsoft. He also served as lead counsel for former Vice President Al Gore in litigation relating to the 2000 election Florida vote count. In 2008, Boies successfully defended NASCAR against antitrust charges, and in 2010 and 2011, he represented plaintis suing to enjoin California’s ban on gay marriage as a violation of the federal Constitution. Olson is a partner in Gibson, Dunn & Crutcher’s Washington, D.C., oce, and is one of the nation’s premier appellate and U.S. Supreme Court advocates. The National Law Journal has repeatedly listed him as one of America’s Most Inuential Lawyers. The American Lawyer and Legal Times have characterized Olson as one of America’s leading litigators. Olson was Solicitor General of the United States from 2001–2004, and from 1981–1984 he was Assistant Attorney General in charge of the Oce of Legal Counsel in the U.S. Department of Justice. He has argued dozens of cases before the U.S. Supreme Court, including the two Bush v. Gore cases arising from the 2000 presidential election. March 2013 4 Bench & Bar AC_March.qxd 3/15/13 12:25 AM Page 5 KBA MEMORIAL SERVICE TO BE HELD ON TUESDAY, JUNE 18 The Kentucky Bar Association will celebrate the lives and legacies of those KBA Convention members who have passed since June 1, 2012, during its 22nd JEFFREY TOOBIN, NATIONAL LEGAL ANALYST AND AUTHOR, TO DISCUSS LAW, POLITICS annual Memorial Service planned for AND THE MEDIA ON THURSDAY, JUNE 20 3:30 p.m., Tuesday, June 18, at the Cathedral of the Assumption, 433 National legal analyst and author Jerey Toobin will discuss American South Fifth Street, Louisville. law, politics and the media, while providing a unique look at the inner workings of the Supreme Court of the United States, as the While the memorial service in recent convention’s featured speaker on Thursday, June 20. years has been held on Thursday during convention week, its move Toobin is a sta writer at The New Yorker and a senior legal analyst at to Tuesday should encourage CNN. The author of critically acclaimed best sellers, Toobin delved into more participation and prevent a the historical, political and personal inner workings of the Supreme conict for members who are busy Court and its justices in his book The Nine: Inside the Secret World of the attending CLE activities later in the week, according to KBA Convention Supreme Court. The Nine spent more than four months on the New York Planning Committee Member Charlie Times Best Seller list and was named one of the best books of the year by Time, Newsweek, Ricketts. Entertainment Weekly and the Economist. His newest book, The Oath: The Obama White House and the Supreme Court, a sequel to The Nine, is a gripping insider’s account of the momentous “It’s our hope that our members ideological war between the John Roberts Supreme Court and the Obama administration. The arriving in town just prior to the Oath was released in September, 2012. convention, and those who are situated locally, will join us for this Toobin is also the author of renowned bestseller Too Close to Call: The 36-Day Battle to Decide the beautiful, ecumenical service held 2000 Election, the denitive story of the Bush-Gore presidential recount and the basis for an HBO in honor of our fellow Kentucky movie. With clarity, insight, humor and a deep understanding of the law, Toobin deconstructs attorneys who have passed,” Ricketts the events, the players and the often-Byzantine intricacies of our judicial system, ending up said. “The service honors those individuals who have served for the with a remarkable account of one of the most signicant periods in our nation’s history. most part of their entire lives in the pursuit of justice. The meting out “THE HATFIELDS AND McCOYS: FROM FILING SUITS TO FIRING SHOTS” TO CLOSE OUT and pursuit of justice is an honorable vocation, and by recognizing these FEATURED CONVENTION PROGRAMMING ON FRIDAY, JUNE 21 individuals in a clerical atmosphere, we solemnify to the largest possible The KBA will oer as its third day of featured programming degree the closeness between the “The Hatelds and McCoys: From Filing Suits to Firing Shots,” law we know as man and the law that an in-depth discussion of the infamous family feud that is imposed upon us by the Almighty.” captured the interest of the nation and cast long shadows on the reputation of an entire region of the country. The feud, Ricketts said the dignity of the event will be underscored by Supreme centered along the Tug Fork of the Big Sandy River on the Court of Kentucky justices dressed in Kentucky-West Virginia border, spawned countless articles, their robes. Additionally, members of studies, books, movies and television shows, but did these tell the Kentucky Court of Appeals and the true story, the complete story? Join our panel members Hateld family photo courtesy of local Circuit and District Court judges on Friday, June 21, as they discuss the complicated story of West Virginia State Archives. have been invited to attend. The the two families; the role that coal companies, timber and mining rights played in the feud; the service will feature various musical Mahon v. Justice extradition case sparked by the feud that made it all the way to the Supreme selections and will be ociated by Court of the United States; and the portrayal of the feud in movies and media. The panelists representatives from dierent faiths. Family members of the deceased will include historical consultant and local expert Bill Richardson; constitutional law professor will receive personal invitations, but Paul Salamanca; author and history professor Altina Waller; and Darrell Fetty, producer of the all KBA members are encouraged to recent award-winning History Channel miniseries, “Hatelds & McCoys.” attend. March 2013 Bench & Bar 5 By Jackie Sue Wright, Chair, KBA Young Lawyers Division YOU CAN’T TEACH HUNGRY recently read an inspiring book firm, and other “back of the house” JM: If you work hard, you can have Ihumorously written by an attorney details that could be costing you the nice things that are important for born and primarily raised in Kentucky. millions. your personal life. I have noticed that You Can’t Teach Hungry, by John Morgan also discusses common young lawyers today, they want less Morgan, details a foundation for threads that define great companies that material things in exchange for more building a multi-million-dollar law have collapsed, which include the time for their personal life. But more firm by focusing on the fact that many inability of the leaders in the firm to time for what? That’s what you have to modern law offices have no real plan! recognize certain young lawyers as true decide on a personal basis. Do you It is his observation that most lawyers superstars and instead always seeing need money and time for a vacation, do not run their practice like a that lawyer as an associate or a more time to exercise during the day, business and in the book he gives fledgling wannabe. On the other hand, more time to participate in your suggestions for exercises, meetings, he describes the importance of children’s school activities? How can events and management tools that may recognizing the cancer cells of a firm you best use the time you have away be helpful to move to a more formal and effectively dealing with them before from work? business strategy. He will have you they infect the entire firm with their JSW: You state that for each of us, laughing out loud with his many negativity, creating a corrosive our best investment is in ourselves. For animal analogies and you will be environment. an attorney five-10 years into their startled with thought provoking self Below is an excerpt from a phone career, what do you suggest is an assessments as he convinces you that interview I conducted with the author, important self-investment? you should be building your law firm John Morgan: JM: Spend time to make sure your as The Greatest Show on Earth, not JSW: One of the exercises you core competence is better than everyone just a petting zoo! suggest is rating every staff person and else. Create your own network of The author outlines several concepts attorneys in groups of A-B-C, where the business so as to not be dependent on in the book and applies them to the A’s must be kept at all costs and the C’s, others. Most attorneys sit back and wait concept of building a law firm. A who will be counter productive if for momma bird to drop worms into summary of a few I found particularly allowed to continue, as they bring no their mouths. Figure out a way to grow interesting include: (1) Plant your tree value to the firm. What do you see as up and get out of the nest before the today. The best day to plant a tree was the main difference in A level and C hawk swoops in and gets you! 20 years ago, the next best day is today. level attorneys? If you are interested in changing the (2) The parable of the Tortoise and the JM: The difference between the two culture of your law firm to be more Hare: nothing is about today, everything levels of attorneys is work ethic. The productive, profitable and efficient, I is about tomorrow. This is a long race. harder you work, the better you will do. encourage you to read what John (3) Knowing everything you know Even if you can’t outsmart someone, it Morgan has to say in his first book, You about your firm, would you hire you? is always possible to outwork them. Can’t Teach Hungry. You will find that Don’t bring a knife to a gun fight. JSW: With that in mind, how do you KNOWLEDGE IS POWER and you (4) You are your own stock market. recommend striking a work/life must SWIM UPSTREAM to reach dry Your best investment is in yourself. balance? land and the best, fertile soil! He also describes small details that are often overlooked by law firms that should be no-brainers, such as 2012-2013 YLD Executive Committee developing a system for intake of new Chair: Jackie Sue Wright cases, making sure your name is listed Chair-Elect: Carl Frazier in phone directories of adjoining towns, Vice-Chair: Adrienne Godfrey Thakur making sure you have the right Secretary/Treasurer: Brad Sayles receptionist as the guardian of your 6 Bench & Bar March 2013 961-Milligan.qxd 3/15/13 12:19 AM Page 7 50TH ANNIVERSARY OF GIDEON V. WAINWRIGHT men to increased dangers of conviction merely because of their poverty” cannot be “reconciled with common and fun- HUGO’S TRUMPET damental ideas of fairness and right.” Anything less, he observed, defeats “the By Luke M. Milligan not have the professional legal skills to promise of our democratic society to protect himself when brought before a provide equal justice under the law.” In nthony Lewis’s book on the con- tribunal with power to take his life or conclusion, Black pointed out that stitutional right to counsel, liberty.” under the laws of most states, “no man AGideon’s Trumpet, is rightly But bold constitutional interpretations shall be deprived of counsel merely regarded as a fine and important work of do not always make for bold policy because of his poverty.” To his opinion non-fiction literature.1 Yet regrettably, reform.6 Johnson was limited to federal he attached an appendix listing state Lewis’s narrative centers on a particular prosecutions. And then, as today, the statutes, judicial opinions, and constitu- defendant (Clarence Gideon), and to a great majority of criminal cases are tional clauses providing for appointed lesser extent, his able team of pro bono brought by state or local governments. In counsel. lawyers (led by Abe Fortas). With all effect, Black’s liberal constitutional inter- From Justice Black’s perspective, the respect to Lewis, it seems he confused pretation in Johnson was a necessary, but correct reading of the Sixth Amendment the lead and supporting roles, for the insufficient, condition for large-scale lib- in Johnson had been effectively neutral- hero of this particular constitutional eral policy reform concerning indigent ized by his colleagues’ flawed reading story is undoubtedly Justice Hugo Black. criminal defendants. He understood that of the Fourteenth in Betts. This The Sixth Amendment, at first significant change would require, at remained the state of constitutional law glance, reads clearly enough. It provides some point in the near future, a second when, some 20 years later, Clarence that “[i]n all criminal prosecutions, the holding: that the right to appointed coun- Gideon was hauled into Florida state accused shall enjoy the right . . . to have sel had been “incorporated” through the court on a felony burglary charge.11 the Assistance of Counsel for his Fourteenth Amendment to state and local With neither a lawyer nor funds for defense.”2 But on reflection the text governments.7 one, Gideon asked that counsel be invites interpretation. The word “have” The question of incorporation divided appointed to assist him at his trial. The emerges as particularly troublesome. the Court. Black’s view, known as “total court stenographer documented the fol- Does “have,” in this context, mean “be incorporation,” provided that the Bill of lowing exchange: provided with,” or rather “not be Rights applied in whole to state and Trial Judge: Mr. Gideon, I am denied?” Put differently: Does the Sixth local governments.8 The contending the- sorry, but I cannot appoint Coun- Amendment recognize a right to the ory, “selective incorporation,” advanced sel to represent you in this case. assistance of appointed counsel? Or by Justices Cardozo, Frankfurter, and Under the laws of the State of simply a right to the assistance of Jackson, emphasized context: incorpora- Florida, the only time the Court retained counsel? Setting aside its his- tion was to be confined to those rights can appoint Counsel to represent torical pedigree, the text can be read essential to “fundamental fairness.”9 a Defendant is when that person either way. Four years after Johnson, the is charged with a capital offense. I The Supreme Court resolved the Supreme Court voted 6-3 against incor- am sorry, but I will have to deny ambiguity in 1938’s Johnson v. Zerbst.3 poration of the right to appointed your request to appoint Counsel Justice Black, newly confirmed to the counsel.10 Employing “selective incor- to defend you in this case. Court, authored the majority opinion poration,” the majority in Betts v. Brady Gideon: The United States identifying a constitutional right to held that the right to counsel was not Supreme Court says I’m entitled appointed counsel.4 He wrote that the “fundamental.” It identified “a great to be represented by counsel. Sixth Amendment “withholds from fed- diversity” in the founding-era laws His request for appointed counsel eral courts, in all criminal proceedings, regarding counsel and explained that refused, Gideon ultimately represented the power and authority to deprive an state constitutions were limited to “the himself at trial (and, as the Supreme accused of his life or liberty unless he privilege of representation by counsel.” Court later put it, did “about as well as has or waives counsel.” Black avoided In dissent, Justice Black criticized the could be expected from a layman”).12 any discussion of the Amendment’s majority’s use of “selective incorpora- The jury found him guilty and he was original meaning (striking, in hindsight, tion.” He then argued that “selective sentenced to five years in state prison. for a justice who would eventually be incorporation,” while theoretically While in prison Gideon drafted a regarded as the leading originalist of his flawed, nonetheless required incorpora- habeas petition. He challenged his con- generation).5 Johnson instead turned on tion of the “fundamental” right to viction and sentence on the ground that “a realistic recognition” of an “obvious appointed counsel. Black explained that the Florida trial court’s refusal to truth”: that the “average defendant does a practice “which subjects innocent appoint him counsel violated his rights March 2013 Bench & Bar 7 961-Milligan.qxd 3/15/13 12:19 AM Page 8 “guaranteed by the Constitution and his Johnson and Betts opinions.17 It knowledge adequately to prepare Bill of Rights of the United States Gov- offers three lines of reasoning. First, his defense, even though he have ernment.” After habeas relief was Betts made “an abrupt break” with the a perfect one. He requires the denied by the Florida courts, Gideon Court’s “well considered precedents.”18 guiding hand of counsel at every petitioned the United States Supreme Second, Betts denied “obvious truths” step in the proceedings against Court, which granted certiorari in order revealed through “reason and reflection” him. Without it, though he be not to give “another review” to Betts’s about the need for representation in guilty, he faces the danger of con- holding that the right to counsel was modern criminal prosecutions. The viction because he does not know not “fundamental.”13 claim that lawyers are “necessities, not how to establish his innocence.19 Twenty-one years had passed since luxuries,” wrote Black, is best demon- The majority concluded that the right Justice Black lost the incorporation bat- strated by the fact “[t]hat government to appointed counsel applied to state tle in Betts. But during that span of time hires lawyers to prosecute and defen- and local governments. As a result, much had changed. None of the six jus- dants who have the money hire lawyers Gideon’s un-counseled Florida convic- tices in the Betts majority remained on to defend.” Third, Betts failed to realize tion was vacated (and several months the Court. Moreover, state practices the nexus between the right to appointed later, on retrial with the assistance of concerning indigent defendants had counsel and the framers’ “noble ideal” counsel, Gideon was acquitted.) evolved. By the time Gideon was of “fair trials before impartial tri- When we reflect on the development argued, 35 states recognized a right to bunals.” Quoting the “moving words” of the right to appointed counsel, it appointment of counsel in even non- of Justice Sutherland, Black wrote: seems a mistake to elevate the roles of capital cases. And twenty-two state The right to be heard would be, in Gideon or Fortas over that of Justice attorneys general signed an amicus brief many cases, of little avail if it did Black. Throughout his judicial career, stating that Betts “is at odds with the not comprehend the right to be Black remained firm in his belief that twentieth century notions of ordered lib- heard by counsel. Even the intel- the right to appointed counsel was a erty as it comprehends the right to ligent and educated layman has 14 counsel.” In this new environment, small and sometimes no skill in Luke Milligan is Justice Black had little trouble finding a the science of law. If charged a law professor majority to overrule Betts. And to no with crime, he is incapable, gen- at the University one’s surprise, Chief Justice Warren erally, of determining for himself of Louisville 15 assigned the opinion to Black. whether the indictment is good or Louis D. Bran- Gideon holds that the Sixth Amend- bad. He is unfamiliar with the deis School of ment right to appointed counsel is rules of evidence. Left without Law. He teaches “fundamental” and thereby incorporated the aid of counsel, he may be put courses in crim- through the Fourteenth Amendment to on trial without a proper charge, inal law and state and local governments.16 Black’s and convicted upon incompetent constitutional law. Milligan was a majority opinion is relatively short, and, evidence, or evidence irrelevant litigator at the Washington, D.C., in terms of substance, more or less a to the issue or otherwise inadmis- law firm of Williams & Connolly. restatement of the ideas he developed in sible. He lacks both the skill and His practice focused on white-collar criminal defense and complex civil litigation matters. Before joining Williams & Connolly, he served as law clerk to Judge Edith Brown Clement of the U.S. Court of Appeals for the Fifth Circuit and Judge Martin L.C. Feldman of the U.S. District Court for the Eastern FIDUCIARY ACCOUNTINGS MADE PROFITABLE: District of Louisiana. Milligan is an High quality, comprehensive accountings for trusts, estates, and honors graduate of Emory Law guardianships coupled with an efficient process ensuring speed School, where he was articles editor and accuracy. Our service lowers your costs, saves your time, and of the Emory Law Journal. He also worked on antitrust investigations improves your reputation. And that will . . . at the U.S. Department of Justice INCREASE YOUR PROFITS and death penalty matters at the Carter Center. Milligan is a member Call or write today to see a sample estate accounting: of Kentucky’s Public Advocacy Stephen J. Matteucci, J.D., LL.M. Commission. The UofL law alumni [email protected] named him Professor of the Year in (502) 365-4506 2012. March 2013 8 Bench & Bar 961-Milligan.qxd 3/15/13 12:19 AM Page 9 necessity for all indigent defendants. At expressions of those who sponsored 12. At his trial Gideon “made an open- many points after Betts, Black sus- and favored, as well as those who ing statement . . . , cross-examined pected that large-scale constitutional opposed, its submission and pas- the State’s witnesses, presented reform concerning indigent defendants sage persuades me that one of the witnesses in his own defense, was a lost cause. “I never thought I’d chief objects that the provisions of declined to testify himself, and live to see [Betts] overruled,” he would the Amendment’s first section, sep- made a short closing argument . . . . say privately.20 But he pressed on. He arately and as a whole, were Gideon v. Wainwright, 372 U.S. watched his colleagues, one by one, intended to accomplish was to 335, 337 (1963). leave the Court. He worked to persuade make the Bill of Rights, applicable 13. To assist Gideon in the preparation each newly confirmed justice. When to the states.”). of his argument the Court the appropriate case arose (Gideon’s), 9. Palko v. Connecticutt, 302 U.S. 319 appointed noted D.C. lawyer (and Black and his new majority acted (1937). To decide whether a right is future Justice) Abe Fortas. swiftly. And through that case Justice “fundamental,” the Court explained 14. See Brief for the State Government Black was able, at last, to extend the that courts must consider “relevant Amici Curiae, Gideon v. Wainwright, decades-long promise of Johnson to a data on the subject . . . afforded by 372 U.S. 335, 337 (1963), at *2. new, and far larger, class of indigent constitutional and statutory provi- 15. 372 U.S. 335 (1963). criminal defendants. Fifty years later, sions subsisting in the colonies and 16. In order to keep his majority, Black the discipline, patience, and empathy of the states prior to the inclusion of compromised on his preferred Justice Black remain worthy of our the Bill of Rights in the national methodology of “total incorpora- recognition. Constitution, and in the constitu- tion.” tional, legislative, and judicial 17. Black’s majority opinion was ENDNOTES history of the States to the present signed by Chief Justice Warren, 1. ANTHONY LEWIS,GIDEON’S TRUM- case.” Betts, 316 U.S. at 465. and Justices Brennan, Stewart, PET (Random House 1964). 10. Betts v. Brady, 316 U.S. 455 White, and Goldberg. Justices Dou- 2. U.S. CONST. amend. VI. (1942). glas, Clark, and Harlan each 3. 304 U.S. 458 (1938). 11. Nonetheless the aspects of the right authored separate concurring opin- 4. Black was confirmed in 1937. He to counsel deemed necessary to due ions. had most previously been the sen- process had been broadened by the 18. Citing Johnson v. Zerbst, 304 U.S. ior U.S. Senator from Alabama. Court in the years between Betts 458 (1938); Grossjean v. American 5. Cf. Betts v. Brady, 316 U.S. 455, and Gideon. See, e.g., Hamilton v. Press Corp., 297 U.S. 233 (1936); 466 (1942) (“[I]t is evident that the Alabama, 368 U.S. 52 (1961) Powell v. Alabama, 287 U.S. 45 [state] constitutional provisions . . . (“When one pleads to a capital (1932). were intended to do away with the charge without benefit of counsel, 19. Gideon, 372 U.S. at 344-45 (quot- rules which denied representation, we do not stop to determine ing Powell, 287 U.S. at 68-69). in whole or in part, by counsel in whether prejudice resulted.”). 20. Lewis, supra at 201, n. 1. criminal prosecutions, but were not aimed to compel the State to pro- vide counsel for a defendant.”). 6. See, e.g., NEAL DEVINS &LOUIS FISHER,THE DEMOCRATIC CONSTI- TUTION (2004); Luke M. Milligan, Congressional End-Run: The Ignored Constraint on Judicial Review, 45 GA. L. REV. 211 (2010). 7. The Fourteenth Amendment, in pertinent part, reads: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV. 8. See Adamson v. California, 332 U.S. 46, 72 (1947) (Black, J., dis- senting) (“My study of the historical events that culminated in the Fourteenth Amendment, and the March 2013 Bench & Bar 9 casemaker.qxd 10/29/12 10:19 AM Page 1 The New Casemaker . . . changing legal research in Kentucky. “ I love using Casemaker and think it is one of the best tools available for attorneys like myself, who can’t a ord an expensive product on a solo budget. My KBA dues pay for it! ” —Tom Rouse, Erlanger, Kentucky Casemaker, provided free to you as Tolearnmore,simplylogintoyour amemberoftheKentuckyBarAssocia- Kentucky Bar Association website: tion,willsaveyouhundredsofdollars www.kybar.org. everymonthonlegalresearch. 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! ƖƯǁƳƻƯƹƳǀ 963-Ewald.qxd 3/14/13 1:07 AM Page 11 50TH ANNIVERSARY OF GIDEON V. WAINWRIGHT “This we shall have!” (Gov. Wendell H. Ford, Oct. 17, 1972) The History of the Right to Counsel for the Indigent Accused in Kentucky incensed the public may be on account of its commission, should be denied.”5 Despite this recognition, the provision of counsel in the Commonwealth has proven problematic over the years. A mid-20th century case, Gholson v. Commonwealth,6 illustrates the continu- ing problem of proceedings without counsel. In May 1947, 22-year old Ward Gholson was indicted in Pulaski County for carrying a concealed pistol. When Gholson was brought to trial in Septem- ber 1947, he entered a plea of guilty without counsel. He was sentenced to two years in prison. In his unsuccessful motion for a new trial, he said he was not advised of his legal rights, did not have money to hire an attorney and was not assigned counsel by the court. Overruling prior cases, the Court reversed Gholson’s conviction. “In addition to legal rights and guarantees common justice demands that every person accused of a felony be given a fair and impartial trial. This would include the informing of an accused at the beginning of his trial by the judge relative to his legal rights and guarantees; and especially is this true where a plea of guilty is offered and enter- tained. It is incumbent upon the trial judge to determine whether the waiver of a right to be repre- By Robert C. Ewald, Daniel T. THE TORTUOUS PATH TO PROVIDING sented by counsel is made Goyette, Erwin W. Lewis, COMPENSATED COUNSEL FOR THE ‘intelligently, competently, under- Edward C. Monahan INDIGENT ACCUSED standingly and voluntarily.’ In the When Kentucky entered the Union absence of such a showing, as is he history of the provision and on June 1, 1792, the United States Con- revealed by the record in the case assistance of counsel in our Com- stitution’s Sixth Amendment2 provided at bar, we think the accused T monwealth is a long and tortuous for the right to counsel. Kentucky’s should be granted a new trial.”7 one. Reviewing that history elucidates first3 and subsequent Constitutions4 pro- the social and moral meaning of the fun- vided for the right to counsel in criminal On the national level, the United damental right to counsel and its proceedings. States Supreme Court in Gideon v. importance to our justice system.1 It also Kentucky’s highest court has long Wainwright8 issued a constitutional provides perspective on the indigent recognized the importance and necessity mandate on March 18, 1963, to wit: a defense system that exists today through- of the right to counsel, stating in 1918 state seeking to take away a person’s out the Commonwealth, and serves as a that it is “an ‘inherent and inalienable liberty must provide an attorney to those means of encouraging improvement and right’ that no defendant, whatever the accused persons too poor to hire their energizing further progress. crime charged against him, or however own in order to comply with the Sixth March 2013 Bench & Bar 11 963-Ewald.qxd 3/14/13 1:07 AM Page 12 Public Advocacy Commision Members who insure the appointment “constitutes a taking of the independence of DPA, KRS 31.015 attorney’s property for which the gov- ernment is required, under the Fifth Amendment to the United States Consti- tution, to compensate him.”12 The Court denied the claim saying that counsel was fulfilling the uncompensated responsibil- ities of being an officer of the court. However, the Court noted that: “While we think there is merit in the proposition that assigned counsel should be compensated, we are not convinced that the point of time has arrived at which this Court should rule that the tra- ditional concept of the duty of the attorney as an officer of the court to rep- resent the indigent is no longer valid, and that the public treasury can be compelled by court order to make compensation. We think it is appropriate for the time to defer to legislative action.” By 1967, Kentucky was “one of only six states which did not pay assigned counsel under any circumstances.”14 In January of 1967, in Jones v. Common- wealth,15 the Court denied the request of the appointed attorney for reimbursement of out-of-pocket expenses, continuing to “defer to legislative action.”16 As it became evident that a system- atic legislative resolution was not forthcoming, the Court’s language began to intensify. In March of 1968, in Com- monwealth, Department of Corrections Amendment right to counsel. The right conference on the issue of right to coun- v. Burke,17 the Circuit Court awarded of one charged with crime to counsel sel, and he observed that, “counsel for $1,500 to a Pike County appointed attor- was “deemed fundamental and essential the indigent in this state always have ney to be paid out of a $100,000 fund to fair trials....”9 served by court appointment and with- appropriation in 1966-68 for public Through the 1960’s, Kentucky’s sys- out pay. It is hoped that the work of the defenders, which contained no legisla- tem of providing counsel to the indigent Governor’s Task Force will bring legis- tive direction for its use and expenditure. accused primarily involved the appoint- lation resulting in something better.”10 The Court refused to allow for payment ment of an attorney by the presiding Although repeatedly unsuccessful in of the fee, while continuing to defer to judge without benefit of any compensa- convincing Kentucky’s highest Court the legislature in what was clearly con- tion or resources. Conscripted counsel that the judiciary should order payment sidered a serious matter that had merit.18 had little or no ability to decline such for indigent defense counsel, Ken- The Court expressed “the wish that other appointments and, more often than not, tucky’s appointed attorneys did departments of government recognize he/she was not provided with adequate persuade Kentucky’s highest Court to this grave problem and take appropriate time, investigative support or experts directly encourage the General Assem- steps, as has been done in other states, to necessary to be effective. These bly to provide a systematic solution for rectify the situation.”19 appointments fell disproportionately on compensating attorneys who were being In May of 1970, in the case of Jones the newer members of the bar who had required by the courts to represent the v. Commonwealth,20 the Court again little experience. indigent accused. denied a fee to an appointed counsel, In January 1965, the Governor’s In March of 1966, in the case of but warned about continued refusal to Conference on Bail and Right to Coun- Warner v. Commonwealth,11 the attorney address this problem, stating that: sel was held in Louisville, Kentucky. involuntarily appointed to represent an “since the providing of counsel Judge John S. Palmore addressed the indigent defendant argued that the for indigent defendants in crimi- March 2013 12 Bench & Bar 963-Ewald.qxd 3/14/13 1:07 AM Page 13 nal prosecutions in the state courts 1970, followed by Robert Jackson and, when he ran for judge. Bill Mizell was is an obligation imposed on the in 1976, Clyde Simmons, who was the director from 1978 until 1999. He state by the constitutions, it would executive director until fired “amid con- became an assistant county attorney and appear that the payment of rea- troversy over suits filed protesting the Brian Hewlett took over in 1999. Boyd sonable compensation to such transfer of juveniles from the Kincaid County became a state-run office in counsel would be in the category Home to the county jail.”24 He was fol- 2007 with Brian Hewlett continuing as of an essential governmental lowed in 1977 by Tom Towles, who the directing attorney. expense. If so, the lack of an resigned in February 1978. Don Paris Prior to 1971, the Louisville Bar appropriation would not be a bar took over in the spring of 1978 until he Association provided a roster of young to a judicial order for payment.”21 was elected district court judge. Tom lawyers to the criminal court judges for Clark was appointed acting director in appointment in indigent criminal cases. The Court also warned about drastic 1978. The office became a full-time On August 16, 1971, the Louisville and consequences for public safety if the program in 1979.25 Joe Barbieri became Jefferson County Public Defender Cor- problems were not resolved. director shortly thereafter and continued poration was organized and formally “Both the federal and state consti- until 2007. In 2007, the office became a incorporated by Robert C. Ewald and A. tutions prohibit the trial of an part of the DPA full-time system after Wallace Grafton, Jr., Wyatt, Grafton & indigent defendant without coun- Mayor Newberry and the Urban County Sloss, along with Wallace H. Spalding, sel. This means that in a case Council decided to eliminate its finan- Jr., thereby creating the first full-time, being prosecuted in a Kentucky cial contribution to the program. fully staffed public defender office in court the state either must see that With participation by county govern- the Commonwealth, which had further the defendant is provided counsel ment and local industry, Boyd County significance because it was in the state’s or it cannot proceed with the pros- began to provide public defender serv- largest and busiest jurisdiction.27 ecution. If it should be determined ices in an organized way in the 1960’s. Col. Paul G. Tobin (U.S. Army, Ret.) that attorneys cannot constitution- It became full-time in 1972. John Simp- was appointed as its first executive ally be compelled to serve as son,26 a Duke Law School graduate, director in 1972 and served in that counsel without compensation, in was its first full-time director and capacity until his retirement in 1982. circumstances where the burden served from November 1972 until 1978 Daniel T. Goyette joined the Louisville- of such service will amount to a substantial deprivation of prop- erty, it would seem that the state would be left with the choice either of not prosecuting indigents or of providing compensation for appointed counsel.”22 Some counties began to address the need for indigent defense counsel with programs funded by local lawyers, grants and the county government. Boyd and Fayette counties began such programs with part-time lawyers in the 1960’s. The first full-time public defender program was organized in Jef- ferson County in 1971. In 1917, a Legal Aid Society was formed in Fayette County, the 52nd in the nation. It was primarily focused on civil cases but lent “its efforts in crimi- nal cases where legal advice cannot be secured by the defendants….”23 On April 20, 1964, Fayette County Legal Aid formed to “promote and sustain legal aid to indigent clients.” Shelby Hurst, Thomas Bell and Eugene Mooney were the initial members of its first board of directors. The first execu- tive directors were Scotty Baesler in March 2013 Bench & Bar 13 963-Ewald.qxd 3/15/13 12:14 AM Page 14 Jefferson County Public Defender’s ciency and improvement of the judicial tutions of law and justice require Office on Oct. 15, 1974, and quickly system, the KBA has been and contin- support and sacrifices perhaps as became the chief trial attorney. He ues to be focused on ensuring the never before. This is not the time served as deputy chief public defender provision of counsel for indigents for those most concerned and and associate director of the office from accused of crimes. The KBA actively involved with administering and 1977-1982, and he has been its chief sought to prevent attorneys from being advocating justice to be encour- public defender and executive director forced to represent defendants without aged to abdicate a time-honored since August 1982. The program has compensation. In 1968 the KBA Board duty to defend the accused….” argued six cases before the Supreme of Governors recommended that the leg- Court of the United States.28 islature “provide for a Public Defender On Sept. 22, 1972, in Bradshaw v. A group of attorneys appointed by the at the appellate level to handle appeals Ball,31 Kentucky’s highest court charac- president of the Kenton County Bar of all indigent defendants” and “legisla- terized the involuntary representation of Association, which included Bob Carran, tion be enacted to provide compensation indigents as an “intolerable condition” Dick Sluckich, Don Stepner, Dick Nel- for attorneys appointed to represent and held it was an unconstitutional tak- son, Tom Smith and Al Hawes, met in indigent defendants in criminal cases in ing of an attorney’s property – his April 1972 to set up the Kenton County trial courts.”29 The board was involved service to the client – without compen- Public Defender Program. Any member in legal challenges and in discussions sation. of the county bar could join the open ros- with the Court of Appeals about the While the appeal in Bradshaw was ter system that Bob Carran administered problems stemming from lack of indi- pending, the 1972 General Assembly, at for 23 years. A training program was gent defense counsel. When legislation the request of Governor Wendell H. instituted for new attorneys beginning was passed, the board recommended Ford, responded to the growing com- with bench trials, then moving to misde- individuals to the Governor for appoint- plaints of the bar, legal commentators32 meanor jury trials and on to a felony trial ment as the first chief defender for the and the admonitions of the Court, and with a co-counsel. The program began state.30 Through the years, the KBA has created the Office of Public Defender, with 25 lawyers and reached 50 lawyers called for adequate funding and facili- currently the Department of Public in the 1980’s. When the caseloads tated measures to advance the provision Advocacy (DPA), assigning it the increased and the funding did not keep of counsel. responsibility to represent all indigent pace, the program was forced to reduce persons in Kentucky charged with or compensation to quarterly payments that Judicial and legislative action brought convicted of a crime. House Bill 461, were prorated with hourly rates routinely about a statewide system in 1972 sponsored by Representatives Kenton, below $15 per hour, occasionally less Senate Bill 261 passed the 1970 Gen- Graves and Swinford, passed the House than $10 an hour, and even as low as $6 eral Assembly. It would have created a 60-18 on March 7, 1972, and the Senate an hour. Eventually, a full-time office was Kentucky public defender system for 26-5 on March 14, 1972. Kentucky’s established in Kenton County in 1995. cities of the first class. However, on statewide defender system was born. March 30, 1970, Governor Louie Nunn The legislature allocated $1,287,000 for Kentucky Bar Association’s efforts vetoed SB 261 stating: FY 73 and FY 74.33 to advance a systematic statewide “By the authority vested in me by solution Section 88 of the Constitution of Urgent need for significant change: As the statewide organization with Kentucky, I hereby veto Senate This we shall have! responsibility for promoting the effi- Bill 261 because: Today, the insti- Announcing the establishment of the statewide public defender office and the appointment of Anthony Wilhoit as the Forensic Psychology Services first chief defender on Oct. 17, 1972 in Louisville, Governor Wendell Ford Harwell F. Smith Ph.D. said, • CRIMINAL RESPONSIBILITY “We know the unhappy result of • COMPETENCE TO STAND TRIAL the law’s failure to meet the just • PERSONAL INJURY EVALUATIONS expectations of those governed by • INDEPENDENT PSYCHOLOGICAL EVALUATION • DISABILITY EVALUATIONS it. Law loses its stabilizing influ- • EXPERT OPINION OFFERED TO DEFENSE OR PROSECUTION ence; at best the result is 30 years experience. alienation and lack of trust of the legal system. At worst, there is Over 50 court appearances. unrest and violence. …It has been Special interest in criminal cases involving mental condition at the said the quality of a nation’s civi- time of the incident — performed more than 500 of these evaluations. Board Certified lization depends on the way it 859.276.1836 • 2201 Regency Rd. #501 • Lexington, KY 40503 Clinical Psychologist enforces its criminal laws. And there can be no civilized enforce- March 2013 14 Bench & Bar 963-Ewald.qxd 3/15/13 12:14 AM Page 15 ment of criminal law without full the rural counties more and more local many of the national standards for the legal assistance to the accused. lawyers were unwilling to work for provision of counsel for indigents. It has This we shall have!” what amounted to meagerly subsidized consistently delivered effective defense pro bono compensation. As a result, services at trial and post-trial, in the Thus, in the fall of 1972, the Office more counties defaulted to a full-time process avoiding and correcting many of the Public Defender began to organ- office that was organized and run by the wrongful convictions. It provides cen- ize, almost from scratch, the public state office. In the late 1970’s, DPA tral coordination and planning for defender system. One method of deliv- received grants from the Law Enforce- evidence-based allocation of resources ering services was a so-called “assigned ment Assistance Administration to according to needs, it is efficient and counsel” system in which judges provide for additional full-time offices responsive to clients and courts alike, it appointed individual attorneys and those in the Appalachian counties. operates a nationally acclaimed training attorneys submitted bills for each case In 1982, the Public Advocacy Com- and education program, and it is staffed to the judge and then to the state office mission,36 the equivalent of the state by many who are recognized experts in for approval, modification and payment. public defender board of directors, was the field of criminal defense at all lev- Another method involved a contract created as a primary way to advance the els. Yet, on the other hand, the statewide system in which the county, state political and professional independence defender program has been plagued defender and local lawyers entered into of the program consistent with the Code throughout its existence by chronic and a contract for a fixed annual funding of Professional Responsibility and the pervasive funding problems and bur- amount that was paid quarterly, irre- ABA standards.37 Under KRS Chapter dened with unethical caseloads.41 With spective of how many cases were 31, it was given responsibility for provid- 31 defender trial offices competing assigned. Different funding formulas ing the names of three qualified attorneys against 120 County Attorney offices and were attempted, e.g., using a funding to the Governor for appointment to the 57 Commonwealth Attorney offices, rate of $14,000 per circuit judge; a $.40 position of public advocate38 and for there are significant inequities, ineffi- per capita rate; hourly rates for legal reviewing of the “performance of the ciencies and logistical challenges that services at $20/hour for out-of-court public advocacy system.”39 That same persist. work and $30/hour for in-court work, year the assigned counsel method of Defender resources remain acutely etc. Counties were asked to contribute delivery was abolished, leaving only the inadequate and insufficient. The funding and for many years some did. contract and full-time methods for pro- defender program provided representa- Difficulties with the early methods of viding trial level counsel. Upon review tion in 161,287 cases in Fiscal Year providing services soon became appar- of the challenges facing the system, the 2012. This means that public defender ent. Funding was inadequate to meet the Public Advocacy Commission in 1990 trial caseloads in FY12 averaged 474 requirements and demands of the case- established as one of its primary goals newly opened cases per attorney at a load. Money for assigned counsel was the complete implementation of the full- funding level of $212 per trial case. unpredictable, and the billings often time system in Kentucky. Funding had Defenders contracted 3,937 cases to pri- exceeded the allotted amount. Budget- been provided by the General Assembly vate lawyers at an average of $341 per ing was difficult at best because hourly in 1996 for Commonwealth’s Attorneys case.42 The quality of representation payments to private attorneys were vir- to convert to full-time. In 1998, funding remains at risk with such inadequate tually impossible to forecast. Frequently was provided to open five new DPA funding and deficient resources. in the late 1970’s budget shortfalls were offices. Additional funding in 2000 and common. Contract systems were 2004 allowed for all 120 counties to be Lawyers make a difference unsound, conflict-ridden and generally served by a full-time defender office and, Lawyers make a difference in our troubled as well. Money provided by with the opening of the Barren County American way of life, a way of life that the state was insufficient, and county office in 2005, the full-time system was evolved and developed from our revolu- fiscal courts, which had been envisioned completely implemented throughout the tionary abhorrence of tyranny and in the statute as significant financial state. The impact and results of this effort devotion to liberty. As we celebrate the contributors to the system, failed to cannot be overstated.40 50th anniversary of Gideon, and Ken- deliver or routinely fell short, with some tucky’s 40th year of complying with its notable exceptions. Further, attorneys Fulfillment of the constitutional mandate by providing counsel to the were often inexperienced and untrained, mandate awaits indigent accused through its statewide turnover was high, and supervision was Ironically, while the establishment of public defender program, there is much almost nonexistent. With 120 counties, the statewide public defender system more that must be done to fulfill the the public defender system was mostly a was a significant and important achieve- federal and state constitutional require- patchwork of inconsistent quality.35 ment, it also has produced a certain ments that all citizens charged with a Many at the local level believed the incongruity and a disquieting concern. crime have a right to counsel in our criminal justice system costs were state On the one hand, Kentucky has a Commonwealth, no matter what their responsibilities. Gradually, counties statewide defender program with a financial status. Common justice contributed less and less money, and in strong statutory structure that meets demands as much… March 2013 Bench & Bar 15 963-Ewald.qxd 3/14/13 1:07 AM Page 16 ENDNOTES know that courts are both coura- 24. The Lexington Leader, March 8, 1. “History…provides a terrain for geous and powerful enough, when 1978, page C-1. moral contemplation. Studying the their courage and power is put to 25. Fayette County Legal Aid has seen stories of individuals and situations the test, to withstand the demand of many litigators and leaders of note, in the past allows a student of his- inflamed and angry citizens for the including: Herb Ponder, Fred Saun- tory to test his or her own moral life of an accused, and to give him ders, Glen Bagby, Hon. Maria sense, to hone it against some of that trial in form as well as sub- Ransdell, Hon. Ernesto Scorsone, the real complexities individuals stance which every citizen is Margret Kannensohn, Kathy Stein, have faced in difficult settings. entitled to in a court of justice.” Russ Baldani, Ray Debolt, Joe People who have weathered adver- 6. 212 S.W.2d 537 (Ky 1948). Bouvier, Larry Roberts, Tom Clark. sity not just in some work of 7. Emphasis added, 212 S.W2d at Sam Milner, Lyle Robey, and Julius fiction, but in real, historical cir- 540. Rather, and Hon. James Keller cumstances can provide 8. 372 U.S. 335 (March 18, 1963). served as the president of the Cor- inspiration.” Peter N. Stearns, 9. Id. at 344. poration. Bo Fugazzi served as American Historical Association. 10. John S. Palmore, Counsel for the chair of Fayette County Legal Aid 2. “In all criminal prosecutions, the Indigent in Criminal Cases, accused shall enjoy the right to … Address before Governor’s Confer- have the Assistance of Counsel for ence on Bail and Right to Counsel, his defence.”(Ratified Dec. 15, Louisville, Ky., Jan. 23, 1965, KY 1791). State Bar Journal (May 1965) pp. 3. “That in all criminal prosecutions, 21, 23. the accused hath a right to be heard 11. 400 S.W.2d 209 (KY 1966). by himself and his counsel….” 12. Id. at 211. Article XI, Section 10, First Ken- 13. Id. at 211-12. tucky Constitution ratified April 19, David Emerson, Recent Cases, 55 14. Ewald Goyette 1792. KY L. J. 703, 709 (1967). The 4. “In all criminal prosecutions the other states were Louisiana, Mis- accused has the right to be heard by souri, South Carolina, Tennessee himself and counsel….” Section and Utah. 11, Fourth Kentucky Constitution 15. 411 S.W.2d 37 (KY 1967). ratified August 3, 1891. 16. Id. at 38. 5. McDaniel v. Commonwealth, 205 17. 426 S.W.2d 449 (KY 1968). S.W. 915, 919 (1918). “The Consti- 18. “We are cognizant of the increasing tution of the state, in section 11, demand made upon the members of Lewis Monahan declares in part that, ‘in all criminal the legal profession to furnish con- Robert C. Ewald, Wyatt, Tarrant & prosecutions the accused has the stitutionally guaranteed counsel Combs, has chaired the Board of right to be heard by himself and services to indigent persons the Louisville-Jefferson County Pub- counsel,’ and nobody will dispute charged with crimes. It is con- lic Defender Corporation since its that under our form of government tended by appellee that since inception in 1971, and has been a the right of the accused in every society is required to furnish these member of the Public Advocacy case to be heard by himself and services, society should assume the Commission since 1990, serving as counsel is, as provided in section 1 responsibility of paying adequate its chair from 1993-2010. He was of the Constitution, an ‘inherent compensation for them. We cannot president of the KBA in 2006-07. and inalienable right’ that no defen- refute this proposition. It is only Daniel T. Goyette joined the dant, whatever the crime charged fair and just. The difficulty is that Louisville-Jefferson County Public Defender’s Office as a trial attorney against him, or however incensed there exists at the present time no in 1974 and is now in his 30th year the public may be on account of its authorized procedure for paying as its executive director. Erwin W. commission, should be denied. Its such claims, nor a fund out of Lewis began his career as a public denial would be destructive of the which they may be paid.” Id. at defender in 1977 and served as the majesty of the law and create in the 450. Public Advocate for 12 years from minds of good citizens and right- 19. Id. at 451. 1996-2008. Edward C. Monahan is thinking people a fear that courts 20. 457 S.W.2d 627 (Ky. 1970). currently in his second term as Ken- were not courageous or powerful 21. Id. at 632. tucky’s Public Advocate, having enough to protect from mob vio- 22. Id. 631-32. started with the Kentucky public lence persons charged with crime, 23. The Lexington Herald, Feb. 8, defender program in 1975. when everybody ought to feel and 1917. March 2013 16 Bench & Bar 963-Ewald.qxd 3/14/13 1:07 AM Page 17 Board of Directors from 1990- from the Kentucky Crime Commis- who later became Campbell County 2010. That board included Hon. sion to maintain a pilot Commonwealth’s Attorney; Ray- Armand Angelucci, Steve Barker, program….” KBA Board of Gover- mond E. Lape, who later was Charles Ward, Pete Guthrie, Sherri nors Minutes, July 30-31, 1971. elected Kenton Circuit Court Paris, Guy Colson, Tonya Prats, The board noted that a public Judge; John A. Diskin, who later and Joan Shinnick. defender bill passed and the board served as a Campbell County Cir- 26. Simpson was a former assistant was to submit 5 names to the Gov- cuit Court Judge; and Kevin Quill, Commonwealth’s attorney and ernor for the first chief defender who became an assistant Common- county probation and parole officer. and the KBA President appointed a wealth’s attorney. They were He was appointed by the County “committee to screen applicants for represented by Carl H. Ebert. Fiscal Court on a 2-2 vote with the the position.” KBA Board of Gov- “Through his volunteer efforts, he County-Judge Executive’s vote for ernors Minutes, March 24-25, did away with pro bono representa- him breaking the tie. “Boyd County 1972. The board authorized a tion by giving pro bono was the first county in the Com- $1,000 stipend to Carl H. Ebert for representation.” Louis A. Ball, Ball monwealth to enact an ordinance his representation in Bradshaw. v. Bradshaw: 20 Years Later, The calling for appointment of a public KBA Board of Governors Minutes, Advocate, Vol. 14, No. 5 (Oct. defender under a new system July 14-15, 1972. In the fall 1972 1992) at p. 6. Ball also noted that enacted earlier this year by the the board submitted 5 names to the only a handful of young attorneys state’s General Assembly.” The Governor for head of the office of were being appointed and it Ashland Independent, Nov. 22, public defender. William E. Rum- impaired their ability to make a liv- 1972 at p. 1. mage was KBA President. KBA ing. “In 1970 it was a shame that 27. Its initial Board of Directors con- Board of Governors Minutes, Sept. the representation of the accused sisted of Robert C. Ewald, A. 15, 1972. often fell to naïve and inexperi- Wallace Grafton, Jr., Hon. Michael 31. 487 S.W.2d 294 (Ky. 1972). The enced lawyers. Unfortunately, by O. McDonald, Matthew B.J. Quinn, plaintiffs seeking compensation for the time experience and expertise Jr., John T. Fowler, J. Bruce Miller, their services were Louis A. Ball, was acquired, the lawyers moved and Daniel D. Briscoe. 28. Kentucky v. Whorton, 441 U.S. 786 (1979); Pilon v. Bordenkircher, 444 U.S.1 (1979); Watkins v. Sowders, 449 U.S. 341 (1981); Crane v. Ken- tucky, 476 U.S. 683 (1986); Stanford v. Kentucky, 492 U.S. 361 (1989); and the landmark case of Batson v. Kentucky, 476 U.S. 79 &RQWDFW%LOO\8SFKXUFK (1986). ELOOXSFKXUFK#EDOGZLQFSDVFRP 29. This was on motion of Mr. Eblen and Mr. Ebert. KBA Board of Gov- ernors Minutes, Feb. 7, 1968. 30. The board created a Committee “to confer with the Court of Appeals relating to the Jones case. KBA Board of Governors Minutes, Nov. 11-12, 1970. The board approved costs in a case seeking compensa- tion. KBA Board of Governors Minutes, Jan. 15-16, 1971. The board approved payment of “all bills in connection with the action” against the state treasurer for com- pliance the Franklin Circuit Court’s order of attorney fees in Bradshaw. KBA Board of Governors Minutes, 2IILFHVORFDWHGLQ May 14-15, 1971. The board 5LFKPRQG0D\VYLOOHDQG/RXLVYLOOH.< authorized the KBA Executive ZZZEDOGZLQFSDVFRP Director to explore seeking “funds March 2013 Bench & Bar 17 963-Ewald.qxd 3/14/13 1:07 AM Page 18 on and the situation repeated nor from recommendations of the was Sept. 29, 1982. Members itself.” Id. Kentucky Bar Association and one were: Helen Cleavinger, Henry 32. B. Deatherage, Comment, The member from recommendations by Hughes, Paul G. Tobin, James Uncompensated Appointed Counsel the Protection and Advocacy Advi- Park, Jesse Crenshaw, William E. System: A Constitutional and sory Boards, three at-large Rummage, Lambert Hehl, Jr., Jus- Social Transgression,60 Ky. L.J. members and two members tice J. Calvin Aker, Somerset, 710, 722(1972) (The social costs of appointed by the Kentucky Judge Anthony M. Wilhoit, Barbar the present system should also be Supreme Court. Commission B. Lewis, Robert Lawson, and considered. An indigent defen- Chairs have been Anthony M. Wil- William R. Jones. dant…cannot be expected to feel hoit, Sept. 29, 1982 – Oct. 28, 40. Kentucky public defenders have that justice has been administered 1983, formerly a Kentucky Court influenced the development of when his newly licensed, court- of Appeals Chief Judge, who cur- constitutional law in 22 U.S. appointed, uncompensated attorney rently serves as executive director Supreme Court decisions and attempts to persuade him to plead of the Legislative Ethics Commis- grants of writs from 1978 – 2012. guilty because the attorney doesn’t sion; Max Smith, Oct. 28, 1983 – Defenders have been responsible want to bear the cost of a full Jan. 6, 1986, a Frankfort criminal for hundreds upon hundreds of trial.”); Jennings T. Bird, The Rep- defense attorney; Paula M. Raines, reversals in cases in the state resentation of Indigent Criminal March 21, 1986 – June 10, 1986, a appellate courts. Since 2000, 14 Defendants in Kentucky, 53 Ky L.J. Lexington attorney and psycholo- people have been proven to have 512 (1965); Daniel G. Grove, gist; William R. Jones, Oct. 10, been wrongfully convicted of seri- Gideon’s Trumpet: Taps for an 1986- June 15, 1993, a professor ous felony offenses in Kentucky, Antiquated System? A Proposal for and former dean of the NKU Chase the most recent being Kerry Kentucky, 54 KY L.J. 527, 533 Law School; Robert C. Ewald, June Porter, who was exonerated in (1966) (“Evaluation of the current 15, 1993-2010, partner at Wyatt, December 2011 after 14 years in system of representation for indi- Tarrant & Combs, Louisville, and a prison. The wrongfully convicted gents reveals an urgent need for past president of the KBA (2006- individuals served an average of 8 substantial change…. This result is 07); Jerry J. Cox, 2010 – present, years in prison before their con- even clearer after a review of the Mount Vernon criminal defense victions were overturned and they unanimous criticism of the bench lawyer and president-elect, were released from custody. and bar of the state.”) National Association of Criminal 41. In 2008, the Department of Public 33. “The Court of Appeals has ruled Defense Lawyers. Advocacy’s funding was reduced several times that lawyers repre- 37. The existence and function of the by millions of dollars. Conse- senting indigents are not entitled as Commission helps preserve the quently, a declaratory judgment a matter of right to compensation independence of DPA as recom- action was filed to address the from either local or state authori- mended and deemed essential by inability of DPA to continue pro- ties. One of the primary purposes the American Bar Association as viding representation to the tens of of the Act was to eliminate this set forth in the ABA Ten Principles thousands of clients appointed inequity.” Robert C. Ewald, A. of a Public Defense Delivery Sys- public defenders in courts Wallace Grafton, Jr., The Kentucky tem (February 2002): Principle #1: throughout the state. After exten- Public Defender System, 36 “The public defense function, sive litigation, the Franklin Circuit Ky.S.B.J. No. 3, at 41. including the selection, funding, Court dismissed the action and the 34. The Public Papers of Governor and payment of defense counsel, is Kentucky Supreme Court eventu- Wendell H. Ford, 1971-1974 pp. independent.” ally dismissed the appeal as moot 271-72 (1978). (Emphasis added). 38. Those appointed to serve as Public because the executive branch and 35. An extensive review of the early Advocate have been Anthony M. the General Assembly allocated development of the statewide Wilhoit, 1972-1974; Jack E. Farley, additional funding totaling $3.7 defender program is found in Ernie March 1975-Oct.1, 1983; Paul F. million so that services and opera- Lewis, DPA Plan for Increase in lsaacs, Oct. 1, 1983-Dec. 31, 1991; tions could continue for the Full-Time Offices, The Advocate, Ray Corns, Jan. 1, 1992–June 16, remainder of the fiscal year. For Vol. 19, No. 5 (September 1997) at 1992; Allison Connelly, July 2, an extended discussion see: Nor- pp.4-11. 1992-Sept. 30, 1996; Erwin W. man Lefstein, Securing 36. The 12 person Kentucky Public Lewis, Oct. 1, 1996-August 31, Reasonable Caseloads: Ethics and Advocacy Commission consists of 2008; Edward C. Monahan, Sept. 1, Law ion Public Defense at pp. a representative from each of the 2008-present. 176-78. three Kentucky law schools, three 39. KRS 31.115. The first meeting of 42. DPA Fiscal Year 2012 Annual Liti- members appointed by the Gover- the Public Advocacy Commission gation Report at pp. 3, 14. March 2013 18 Bench & Bar 962-Gross and Cox.qxd 3/15/13 12:27 AM Page 19 50TH ANNIVERSARY OF GIDEON V. WAINWRIGHT adequate resources in order to ensure a The Cost of just result. With that in mind, there is a growing Representation recognition of the inverse correlation between taxpayer spending on indigent defense and incarceration costs. A Jus- Compared to tice Policy Institute report entitled “System Overload: The Costs of Under- the Cost of Resourcing Public Defense” identifies five ways in which the poor quality of public defense can increase incarcera- Incarceration: tion costs: 1) more pretrial detention for people who do not need it; 2) increased How Defense Lawyers Reduce the Costs of pressure to plead guilty leading to wrongful convictions; 3) wrongful con- Running the Criminal Justice System victions and other errors at trial; 4) excessive and inappropriate sentences; By John P. Gross and Jerry J. Cox arguing that able representation pro- and 5) increased barriers to reentry.3 vides an immeasurable benefit to a The choice for policy makers is a sim- ifty years ago the United States- defendant and the quality of justice he ple one: either spend the money Supreme Court recognized the receives in our courts, indigent defense necessary to ensure that every defendant F“obvious truth” that a lawyer is a providers are now communicating the has an adequate defense, or continue to necessity and not a luxury when facing very real fact that good representation pay the costs associated with a criminal a criminal charge.1 While the need for of indigent criminal defendants provides justice system that incarcerates 1 out of the able assistance of counsel may have a measurable cost savings to the entire every 100 adults in the country.4 been obvious to the Court, legislators system. The inadequate funding for haven’t always seen things quite so indigent defense not only erodes the The Sooner Able Counsel is Provided, clearly. The reluctance to adequately public trust, but results in wrongful con- the Better fund indigent defense is undoubtedly victions which in turn, contribute to Several studies demonstrate the based on the belief that spending money higher incarceration rates. Wrongful importance of providing able counsel at on criminal defense is not politically convictions also increase the number of a defendant’s first appearance before a expedient, particularly when defendants post-conviction appeals and attacks on judicial officer. Many jurisdictions are are perceived as mostly guilty. Provid- convictions. Research suggests that seeking to implement evidence-based ing defense attorneys with more inadequate funding for indigent defense practices when making decisions about resources is therefore seen as a waste of ultimately results in higher incarceration pretrial release. In the report “Philadel- money; attorneys will only delay the costs and higher appellate costs. Arising phia’s Crowded, Costly Jails: The inevitable conviction and will make the from the higher rates of incarceration Search for Safe Solutions,” it is esti- criminal justice system less efficient. and the continuation of post-conviction mated that the City of Philadelphia Indigent defense providers have typi- appellate attacks. This research suggests spends seven cents out of every tax dol- cally responded to this sort of prejudice that underfunding indigent defense does lar on holding people in its jail.5 In an by pointing out that every defendant is not actually save the state money; effort to reduce the overall jail popula- presumed to be innocent and is entitled rather, it increases the burden on the tion, the report makes recommendations to due process of law. While that is cer- taxpayers. which include expanding options for tainly true, those arguments too often As one Harvard University diverting cases away from the courts fall on deaf ears. researcher concludes, “When the system and creating a broader range of pretrial Advocates for increased funding for includes well-trained public defenders services. criminal defense now have a growing cases move faster, helping the court A 2010 study, “Baltimore Behind body of empirical research that supports manage growing caseloads, and the sys- Bars: How to Reduce the Jail Popula- the argument the adequately funding of tem tends to generate and implement tion, Save Money and Improve Public indigent criminal defense results in a innovative programs.”2 Adequately Safety,” concludes that it costs $100 a more efficient justice system. The crimi- resourced defense attorneys increase the day to hold a person in custody in the nal justice system is just that: a system. effectiveness of this system. The inter- Baltimore Detention Center but that When one component of that system is connectedness of our criminal justice providing pretrial release services to not well maintained, the entire system system requires that every person oper- defendants would cost on average $2.50 functions less efficiently. In addition to ating within that system have access to per person per day.6 March 2013 Bench & Bar 19 962-Gross and Cox.qxd 3/15/13 12:27 AM Page 20 “Do Lawyers Really Matter? The release or detention and to advocate for from the moment a defendant is charged Empirical and Legal Case for Attorneys the use of less costly pretrial release with a crime. Defense counsel needs to at Bail” studies the effect that lawyers services. conduct an immediate investigation into have on pretrial release decisions in An important corollary discovered in the facts of the case and into the back- Baltimore, Md.7 The study concludes a study released in 2012 bythe New ground of the defendant. As time passes, that having adequately prepared and York City Criminal Justice Agency enti- witnesses become more difficult to resourced defense attorneys at the first tled “A Decade of Bail Research in New locate and their memories fade. Physical appearance results in defendants being York City,” is that defendants who are evidence may be lost or begin to deteri- released on their own recognizance incarcerated pre-trial have worse case orate. Defense counsel with access to twice as often than if they were unrepre- outcomes than those defendants who are adequate resources to begin the investi- sented, and bail being reduced four allowed to remain at liberty. The study gation process should be involved from times as often for the remaining defen- found that defendants who are detained the inception of the case for both cost dants. This translates into a 20 percent pretrial are more likely to be convicted; savings and to maintain the due process reduction in the average amount of time if convicted, they are more likely to be rights of defendants. spent in jail per defendant. Having rep- sentenced to incarceration; and if incar- resentation at the initial appearance cerated, their sentences are likely to be Better to get it Right the First Time means that fewer defendants will be longer.8 This suggests that the decision Underfunding indigent defense held in custody unnecessarily and that to detain pretrial not only imposes inevitably leads to excessive caseloads will help reduce the high costs of incar- greater incarceration costs but also for defense attorneys.9 Just like every- ceration. The end result is that whatever results in higher post-conviction incar- one else, when defense attorneys do not it might cost to have defense counsel ceration costs due to the increase in the have the time or resources necessary to present at a first appearance, in the end, rates of conviction and the increase in do their job properly, mistakes will be counsel pays their own way through the average length of sentence as com- made. Taxpayers pay a price for these lowered incarceration costs. Defense pared to those defendants not mistakes. A 2011 report by the Better counsel is in a position to provide the incarcerated prior to trial. Government Association and the Center court with the type of information that There is yet another reason that on Wrongful Convictions at Northwest- will lead to more rational conditions of defense counsel needs to be involved ern University, entitled “A Tale of Lives Don’t let that pesky thing called a job get in the way. 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GLSSP SJ 0E[ [[[%PEFEQE001GSQ&IRGL March 2013 20 Bench & Bar 962-Gross and Cox.qxd 3/15/13 12:27 AM Page 21 Lost, Tax Dollars Wasted and Justice ended up costing taxpayers $13 tion, their cases are vulnerable to costly Denied,” concludes that wrongful con- million.11 The director of Michigan’s mistakes that can take a long time to victions in 85 Illinois cases cost State Appellate Defender Office esti- correct. Lawyers on both sides can taxpayers $214 million.10 mates that over a period of five years spend years dealing with appeals arising Similarly, “Faces of Failing Public the underfunding of indigent defense led from technical infractions and proce- Defense Systems: Portraits of Michi- to nearly $70 million in unnecessary dural errors. When that happens, no one gan’s Constitutional Crisis,” a report incarceration costs, which does not take wins.”15 prepared by the ACLU in 2011, docu- into account the additional costs associ- ments the exoneration of 13 defendants ated with appellate litigation-the cost of Finding Cheaper and Safer Options who were convicted because of attorney appellate defense counsel, the cost of The active participation of ade- errors directly attributed to the inade- prosecutors, and the cost of appellate quately resourced defense counsel from quate funding of Michigan’s county courts.12 the inception of a case ensures that based indigent defense system, which The Kentucky DPA’s Post Trial Divi- defendants will have access to diversion sion has identified 14 wrongful programs, which are typically much John P. Gross is convictions where the defendants col- cheaper and more effective at reducing Indigent lectively spent approximately 112 years recidivism than incarceration. Defense Defense Counsel in jail before having their convictions attorneys are in a unique position to for The National overturned.13 For the defendants who help identify defendants who have sub- Association of have been wrongfully convicted, it is stance abuse issues or mental health Criminal impossible to put a price on those lost problems. A national study of people in Defense Lawyers years, but there is a very real price to be jails across the country found that 68 (NACDL) as well paid by taxpayers. A Vera Institute of percent of people in jails suffered from as an adjunct Justice Report entitled “The Price of dependence or abuse of alcohol or associate professor of law at Ameri- Prisons: What Incarceration Costs Tax- drugs.16 According to a report from the can University, Washington College payers” estimates that it currently costs Vera Institute of Justice Substance of Law where he teaches criminal Kentucky $14,603 a year to house an Abuse and Mental Health Program, 33 procedure and evidence. A law inmate.14 percent of adult District of Columbia review article by Gross, “The Failure to Accurately Assess the Value of Our adversarial system breaks down jail residents had some indication of a Counsel: Why ‘Do It Yourself’ when the defense is underfunded; it mental health need, but criminal justice Lawyering Doesn’t Protect the becomes not only inaccurate but ineffi- agencies failed to identify this need 46 17 Rights of the Indigent” will be pub- cient. Attorney General Eric Holder has percent of the time. Early involvement lished in 2013 in the New Mexico noted the consequences of underfunding in a defendant’s case increases the like- Law Review. Previous publications public defense: “When defendants fail lihood that defense attorneys will be include articles dealing with the to receive competent legal representa- able to identify defendants with sub- exclusionary rule and the right to counsel under the Sixth Amend- ment. In addition, he has given Nonprofit Organization Law Can Be Complex numerous presentations on Public Defense Delivery Systems and on My Practice Is Limited to Advising Nonprofits and ethical issues related to the practice of criminal defense. Prior to joining The Professionals Working With Them the NACDL, he was a visiting assis- tant professor of law and acting Assistance Provided With director of the Syracuse University Organization Formation College of Law’s Criminal Defense Organizational Policies & Procedures Clinic. Prior to his teaching and Assessment of Operations clinical career, he was a staff attor- ney at the Legal Aid Society in New Continuous Improvement Systems (Quality) York City in the Criminal Defense Board Governance Issues Division, where he represented indi- Complex Tax Matters gent defendants at all stages of For-Profit Subsidiaries and Joint Ventures prosecution, from arraignment Merger, Consolidation or Dissolution of Nonprofits through disposition. A 1999 gradu- ate of Hofstra University College of Conley Salyer, Attorney, J.D., LL.M.; Examiner, Malcolm Baldrige National Quality Law, he received his Bachelor of Award (MBNQA). [email protected], (859) 281-1171, Arts degree from Georgetown Uni- 710 E. Main Street, Lexington, KY 40502. www.nonprofitattorney.net versity in 1995. This is an advertisement. March 2013 Bench & Bar 21 962-Gross and Cox.qxd 3/15/13 12:27 AM Page 22 stance abuse issues or mental health ceration, for both the defendant and the even the victims of crime benefit by problems and can begin to seek out state, there are also the costs imposed by having their complaints resolved quickly appropriate alternatives and treatment a conviction, even a conviction that does and accurately. As Kentucky’s highest options for them. Once again, defense not result in incarceration. A survey of Court has stated: “It is in the public counsel is in a position to provide the statutory collateral consequences of con- interest that the administration of crimi- court with the type of information that viction in Kentucky identifies adverse nal justice proceeds fairly, impartially, will lead to more rational conditions of consequences in the following areas: expeditiously and efficiently.”21 release or detention pretrial, as well as civil rights, civil liberties, parental rights, There can be no doubt that declining conditions of release or confinement public offices and officials, professional revenues force states to make cuts in post-conviction, with resulting cost sav- or occupational licenses, employment essential services. When faced with ings to the overall justice system. and employment benefits, applications these harsh economic realities, the ques- and disclosures, licenses and permits, tion that is usually posed by legislators The Real Costs of Incarceration penalty enhancements, sex offender reg- to advocates for the right to counsel is: The studies referenced above identify istration, contractual relations and, lastly, “How can we afford to give more the short-term savings associated with a disqualification as an heir or benefici- money to lawyers for poor people?” reduction in incarceration rates; however ary.20 The presence of counsel is a Based on the empirical evidence, the there is also evidence to suggest that necessity even in those cases where a simple answer is: “How can we afford there are long-term financial benefits judge isn’t considering imposing a sen- not to?” associated with such a reduction. A 2010 tence of incarceration. Jerry J. Cox is study by the Pew Center on the states an attorney in entitled “Collateral Costs: Incarcerations Adequate Resources for Criminal Mount Vernon, Effect on Economic Mobility” finds that Defense Reduces Costs Ky. Cox serves incarceration carries significant and Ultimately, the early appointment of as chair and has enduring economic repercussions. For- adequately resourced defense counsel been a member mer inmates work fewer weeks per year, benefits not just the defendant but the of the Public earn less money and have limited entire criminal justice system. The Advocacy Com- upward mobility compared to those not involvement of the attorney leads to a mission, the formerly incarcerated. Past incarceration more reasoned bail determination that governing board for Kentucky’s is found to reduce subsequent wages by will reduce the costs of pretrial deten- statewide public defender program, 11 percent, cut annual employment by tion. It allows the attorney to identify since 1993 and has been its chair nine weeks and reduce yearly earnings the defendant who will benefit from since 2010. Cox did contract pub- by 40 percent.18 alternatives to incarceration, such as lic defender work in Rockcastle The Texas Criminal Justice Coali- drug or alcohol treatment programs, County in the 1970s. He has tion’s 2010 report “Costly Confinement which are less costly and more effective trained extensively for DPA at its & Sensible Solutions: Jail Overcrowding at reducing recidivism than incarcera- annual conference and at its Trial in Texas” concludes that long waits in tion. It also permits the defense to Practice Institute. He is National jail lead to a loss of employment and conduct a prompt investigation of the Association of Criminal Defense housing for defendants which contribute case, which helps the defendant make Lawyers president-elect and a past to recidivism. The report emphasizes the an informed decision regarding whether president of the Kentucky Associa- important role counsel plays in helping a or not to enter into a plea bargain. This tion of Criminal Defense Lawyers. defendant navigate the criminal justice in turn leads to greater efficiency which Cox has been practicing criminal system and calls for representation prior reduces court costs. It allows for the defense law for over 40 years, and to a defendant’s first court appearance or preservation of evidence, which enables is a 1968 graduate of the Univer- sity of Kentucky College of Law and plea negotiations. It also concludes that the defendant to prepare and present an a 1965 graduate of Berea College. public defender programs not only adequate defense, thereby increasing the He is a member of the American increase the quality of indigent defense accuracy of the trial outcome and reduc- and Kentucky Bar associations and ing the possibility that an innocent services but that they also decrease soci- has served on the KBA’s Unautho- etal costs. Defense attorneys have the defendant will be incarcerated. Defense rized Practice of Law Committee ability to significantly reduce the number counsel with adequate resources make (1993-2010, chair 2007-2010), of days between an individual’s arrest fewer errors and thus, reduce the num- Criminal Rules Committee (1995- and trial, which reduces the unnecessary ber and length of the appellate process 2007), Legislative Committee and harmful collateral consequences of after conviction. (1999-2005). He also served on job and housing loss from incarceration, The reality is defense attorneys the Kentucky Criminal Justice promotes family stability and reduces reduce incarceration costs, increase effi- Council’s Drug Strategy Committee overcrowding and substantial jail costs.19 ciency and increase the accuracy and (1999), and the Kentucky Bar It is important to note that while there reliability of our criminal justice system. Foundation (president, 2002). are certainly costs associated with incar- Defendants benefit, society benefits and March 2013 22 Bench & Bar 962-Gross and Cox.qxd 3/15/13 9:35 AM Page 23 ENDNOTES 8. Mary T. Phillips, Ph.D., A Decade download?file=3542/Price%2520of 1. Gideon v. Wainwright, 372 U.S. of Bail Research in New York City, %2520Prisons_updated%2520 335 (1963). New York City Criminal Justice version_072512.pdf. 2. Tony Fabelo, What Policymakers Agency (2012), p. 127, available 15. Remarks by Attorney General Eric Need To Know To Improve Public at: http://www.cjareports.org/ Holder at the American Council of Defense Systems Public Defense, reports/DecadeBailResearch.pdf. Chief Defenders Conference, Papers on the Executive Session on 9. See Norman Lefstein, Securing Washington D.C., Wednesday, June Public Defense (2001), Kennedy Reasonable Caseloads: Ethics and 24, 2009. School of Government, Harvard Law in Public Defense, American 16. Jennifer C. Karberg and Doris J. University, p. 2., available at: Bar Association, Standing Commit- James, Substance Dependence, https://www.ncjrs.gov/pdffiles1/bja/ tee on Legal Aid and Indigent Abuse, and Treatment of Jail 190725.pdf. Defense (2011), available at: Inmates, 2002 (Washington, D.C.: 3. Available at: http://www.justice http://www.americanbar.org/ Bureau of Justice Statistics, 2005). policy.org/uploads/justicepolicy/ content/dam/aba/publications/books 17. See Closing the Gap: Using Crimi- documents/system_overload_ /ls_sclaid_def_securing_reason nal Justice and Public Health Data final.pdf. able_caseloads.authcheckdam.pdf. to Improve the Identification of 4. See “One in 100: Behind Bars in 10. Available at: http://www.better Mental Illness (July 2012). Avail- America 2008” by The Pew Center gov.org/investigations/wrongful_ able at: http://www.vera.org/ on the States, available at: convictions_1.aspx. download?file=3544/closing-the- http://www.pewstates.org/uploaded 11. Available at: http://www.aclu.org/ gap-report.pdf. Files/PCS_Assets/2008/one%20 files/assets/MI_failedjustice_ 18. Available at: http://www.pew in%20100.pdf. bookletsm.pdf. states.org/uploadedFiles/PCS_ 5. Available at: http://www.pew 12. Written Testimony of Dawn Van Assets/2010/Collateral_ trusts.org/uploadedFiles/ Hoek, Chief Deputy Director State Costs(1).pdf. wwwpewtrustsorg/Reports/ Appellate Defender Office before 19. Available at: http://www.texa Philadelphia_Research_Initiative/ the U.S. House of Representative scjc.org/sites/default/files/ Philadelphias_Crowded_Costly_ Committee on the Judiciary, March publications/Costly%20 Jails_rev.pdf. 26, 2009, available at: http://beta. Confinement%20Sensible%20 6. Available at: http://www.justice sado.org/sado_news/DVH_ Solutions%20PowerPoint%20 policy.org/images/upload/ testimony_3-26-09.pdf. (Mar%202011).pdf. 10-06_REP_BaltBehindBars_MD- 13. See page 20 of DPA 2012 Annual 20. See Daniels, Danley-Nichols, Mor- PS-AC-RD.pdf. Report, available at: http://dpa. gan & Rhoades, Kentucky’s 7. Douglas L. Colbert, Ray Paternos- ky.gov/NR/rdonlyres/ Statutory Collateral Consequences ter & Shawn Bushway, Do A4E59688-A807-4914-BAC3- Arising from Felony Convictions: A Attorney’s Really Matter?The 3FB616475BD6/0/2012Annual Practitioner’s Guide, 35 N. Ky. L. Empirical and Legal Case for the ReportDraftFINAL090612 Rev. 413 (2008). Right to Counsel at Bail, 23 Car- REDUCED.pdf. 21. Bradshaw v. Ball, 487 S.W.2d 294, dozo L. Rev. 1719 (2002). 14. Available at: http://www.vera.org/ 298 (1972). Call for Entries - Deadline June 1, 2013 The Kentucky Bar Association invites and encourages students currently KBA Annual enrolled at the University of Kentucky College of Law, the University of Louisville Louis D. Brandeis School of Law, and the Northern Kentucky University Salmon P. Chase College of Law to enter the KBA Annual KBA 2013 Student Writing Student Writing Competition. This competition oers these Kentucky legal scholars the opportunity to earn recognition and a cash award. First, second, and third place awards will be given. Entries must be Competition received by June 1, 2013. Annual 1st Place - $1,000 * 2nd Place - $300 3rd Place - $200 Convention Students may enter their previously unpublished articles. Articles entered should be of interest to Kentucky practitioners and follow the suggested guidelines and requirements found in the “General Format” section of the Bench & Bar Editorial Guidelines at www.kybar.org/103. June 19-21 For inquiries concerning the KBA Annual Student Writing Competition, contact Shannon H. Roberts at [email protected] or call (502) 564- 3795 ext. 224. Submit entries with contact information to: Galt House Hotel Shannon H. Roberts Communications Department Kentucky Bar Association 514 West Main Street Frankfort, KY 40601-1812 Louisville, Ky *Also includes possible publication in the Bench & Bar. March 2013 Bench & Bar 23 964-Minton.qxd 3/15/13 12:06 AM Page 24 50TH ANNIVERSARY OF GIDEON V. WAINWRIGHT Lawyers are Essential in Making “Justice For All” A Reality By Chief Justice John D. Minton, Jr. sion, when so designated, not to with- hold his assistance nor spare his best Counsel for indigent criminal exertions in the defense . . . .”5 defendants Despite this early recognition of the ifty years ago, the United States constitutional right to counsel, a Supreme Court concluded in statewide public defender system was F Gideon v. Wainwright1 that, “rea- not created in Kentucky until 1972 son and reflection require us to when the Kentucky General Assembly recognize that in our adversary system enacted House Bill 461.6 Before that of criminal justice, any person haled time, some counties contracted with into court, who is too poor to hire a local lawyers to provide indigent achieving just and reliable results in lawyer, cannot be assured a fair trial defense in circuit court. Frequently, the criminal cases. unless counsel is provided for him. This circuit judge appointed members of the The professional commitment of the seems to us to be an obvious truth.”2 local bar to represent indigent defen- lawyers who work for the Common- As celebrated in this edition of the dants in criminal cases, regardless of the wealth’s Department of Public Bench & Bar and similarly commemo- lawyer’s experience, ability or knowl- Advocacy and the Louisville-Jefferson rated in state bar journals across the edge of criminal law. And there was no County Public Defender Corporation nation in 2013, the Gideon decision provision for compensation or reim- merits recognition by the bench and establishing the constitutional right to bursement of expenses in these cases, so bar. Public defenders are often saddled counsel has affected more persons in appointed lawyers bore the burden of with seemingly insurmountable case- our criminal justice system than any their representation. loads and cases that may, to many, case in American jurisprudence. Shortly after passage of House Bill seem indefensible. So I am especially The “obvious truth” recognized fed- 461, Governor Wendell Ford appreciative of those who dedicate their erally by Gideon found expression in announced the appointment of Anthony professional lives to providing services our state law from the founding of the Wilhoit as the state’s first public advo- to persons who, as the Court stated in Commonwealth. Former Chief Justice cate. And the Kentucky Court of Williams, “[have] the double misfortune of Kentucky John Palmore noted in a Appeals rendered Bradshaw v. Ball,7 to be stricken by poverty and accused January 1965 address to the Governor’s which declared the representation of of crime.”9 Conference on Bail and Right to Coun- indigent criminal defendants without sel that “[t]he bill of rights in each of compensation or reimbursement of Legal Services in Civil and our four constitutions, beginning in expenses to be a “substantial depriva- Criminal Cases 1792, has provided that ‘in all criminal tion of property and constitutionally During the past several years, the prosecutions the accused has the right to infirm” and required the state to “fur- Kentucky Bar Association has focused be heard by himself and counsel,’ and nish the indigent a competent attorney efforts on increasing pro bono partici- from time immemorial our courts have whose service does not unconstitution- pation among its members through the given this provision the same meaning ally deprive him of his property Kentucky Volunteer Lawyers Program. the Supreme Court gives to the parallel without just compensation.”8 And the Kentucky Supreme Court guaranty in the Sixth Amendment of the In the half-century since Gideon, enhanced that effort with the creation of federal constitution.”3 Kentucky has taken great strides to the Kentucky Access to Justice Com- The Kentucky Court of Appeals – implement a statewide public defender mission in 2010. The 2012 KBA Kentucky’s highest court at the time – system that provides competent, profes- Convention marked the kick-off of the recognized the right to counsel for indi- sional representation to indigent “Power of One – How a Lawyer Can gent criminal defendants in the1908 defendants. This system mirrors our Change a Life” campaign, the goal of decision of Williams v. Commonwealth,4 statewide unified court system and which is “to improve access to the judi- noting that “[i]t has been the custom of affords consistency across the Com- cial system for low-income the courts of this state . . . when a pris- monwealth with respect to the delivery Kentuckians with civil legal needs by oner is unable to employ counsel, for of services in criminal matters. The increasing the number of volunteer the court to designate someone to provision of quality legal service to lawyers and cultivating a culture among defend him, and it is the duty of such indigent defendants is imperative to the the bar that encourages pro bono counsel, which he owes to his profes- proper functioning of the courts and to work.”10 March 2013 24 Bench & Bar 964-Minton.qxd 3/15/13 12:06 AM Page 25 In a 1961 speech to the Massachu- The message of the Power of One the Gideon decision, we should reflect setts legislature, President-Elect John F. campaign is that each Kentucky lawyer on the steps that have been taken across Kennedy alluded to a well-known para- has the power to change the life of a fel- the country and in our Commonwealth ble of faithful servanthood when he low Kentuckian by providing pro bono to provide meaningful counsel to indi- stated, “For of those to whom much is services to the most underserved and gent defendants in criminal matters. given, much is required.”11 As lawyers, economically challenged members of our And we should be proud of the we enjoy the great privilege of practic- communities. And, it should be noted, statewide public defender services pro- ing law. And we owe it to the public, Kentucky lawyers also hold the power to vided by the Kentucky Department of and our profession, to, as President John affect the lives of indigent defendants in Public Advocacy and the Louisville-Jef- Adams said, “assist the helpless and criminal cases by participating in ferson County Public Defender friendless in a worthy cause . . . to assigned counsel programs that assist the Corporation. devote [our] skill and energy to the Department of Public Advocacy and the I encourage all of you to consider plight of another, without the promise of Louisville-Jefferson County Public joining the conflict panel of the a material reward for oneself . . . .”12 Defender Corporation with conflict cases defender office in your jurisdiction to at the trial and appellate levels for signif- ensure that the “obvious truth” of John D. Minton, icantly reduced compensation. Gideon is real in Kentucky’s courts. Jr., has served Although the Power of One cam- as chief justice paign focuses on pro bono participation of the Supreme ENDNOTES in civil cases, there is a constant and 1. 372 U.S. 335 (1963). Court of Ken- increasing need for lawyers to volun- Id. at 344. tucky since 2. teer to take conflict cases in criminal Judge John S. Palmore, Kentucky 2008. As head 3. matters. Across the state, public defend- Court of Appeals, “Counsel for the of the Judicial ers are seeking lawyers to represent Indigent in Criminal Cases,” Branch, he is committed to investing in the peo- clients in conflict situations in district Address before Governor’s Confer- ple who operate the court system and circuit court and to represent ence on Bail and Right to Counsel, and in technology to help courts clients in appeals of criminal convic- Jan. 23, 1965. reduce costs and deliver better tions to the Kentucky Court of Appeals 4. 110 S.W. 339 (Ky. 1908). service. and the Supreme Court of Kentucky. 5. Id. at 340. Chief Justice Minton formed the Lawyers who volunteer to accept 6. The Louisville-Jefferson County Technology Governance Committee conflict cases involving indigent defen- Public Defender Corporation was to create a strategic technology dants for the modest compensation organized and incorporated in plan that will allow for e-filing and provided by defender offices have the 1971. electronic services. He also created opportunity to make a significant differ- 7. 487 S.W.2d 294 (Ky. 1972). a commission to establish a fair ence in the lives of people in their 8. Id. at 298. and competitive salary structure for communities and to ensure the efficient 9. Williams, 110 S.W. 339, 340 (1908). the Judicial Branch. Under his operation of the criminal justice system. 10. Jacqueline S. Duncan, “Power of guidance, the Supreme Court The DPA provides training and One – How a Lawyer Can Change adopted the first uniform family law resources to lawyers who agree to do a Life,” Program Materials, Ken- rules and formed the Kentucky conflict work in criminal matters and, tucky Bar Association Convention, Access to Justice Commission to perhaps most importantly, malpractice 2012. improve access to civil legal aid to coverage in those cases in which they See also, Luke 12:48. the poor. As a member of the Task 11. accept conflict appointments. 12. Letter from John Adams to Force on the Penal Code, he joined As we mark the 50th anniversary of Jonathan Sewall, 1759. the Executive and Legislative branches to curb prison costs and improve public safety. Gary M. Weiss Chief Justice Minton holds Mediation degrees from Western Kentucky When it’s a question of persuasion... University and the University of Gary Weiss has a passion to come to the right result. Kentucky College of Law and previ- Listed in Best Lawyers One of few mediators ously served as a judge for Circuit in America; who maintains an Court and the Court of Appeals. The Personal Injury active practice Kentucky Bar Association honored Legal Malpractice so he knows the him with its Outstanding Judge And now one of only eight present value of cases Award in 2003. He was named Dis- Kentucky lawyers named tinguished Jurist in 2012 by the UK for mediation/arbitration Principal Address Louisville College of Law Alumni Association. Tele: (502) 493-1394 E-mail: [email protected]@aol.com March 2013 Bench & Bar 25 SHOP TALK THE SECURITY OF INFORMATION TODAY Michael Losavio he information and security game Ever wonder why so many people Key to both programs is first preven- keeps changing for lawyers and want your Social Security number? Ever tion and then incident response theirT clients. One aspect of this is the ask why? involving federal law enforcement. growing asset-base of our clients in The PWC survey found, even in that Businesses are sensitive about information itself. Information as an general confidence, an emerging trend involving anyone in a security breach asset may be from the value of rights in downward in system confidence, what involving information because of the trade secrets and copyright, the compet- they styled as “A hint of doubt…” The potential damage to good will and cus- itive position offered from certain number of security incidents increased tomer relations. Calling in the FBI knowledge and the ability to provide from the previous year though the brings its own concerns. These pro- service to their clients and customers financial losses from them declined. grams are meant to walk through the better than others. Another is in the ever But there was no consistency in mea- process of using federal law enforce- more essential information technology suring and attribution for losses, ment and its considerable resources to used to speed and direct commerce including loss of good will and loss of aid in responding to a breach, just as today, something that needs to work business. This was matched by an over- local police would be called about a well day in and day out. These are pro- all decline in the use of security burglary. tected by a variety of practices and technologies and polices, perhaps due A federal response may, in fact, be the technologies. The effectiveness of those to economic constraints. only effective law enforcement response protections may not be as good as they Lastly, concern with the security of for new technology and data-intensive should be. mobile devices, cloud services and companies. While insider threats remain PriceWaterhouseCooper’srecent sur- social media was growing, but less than high, focused external attacks continue as vey of information security indicates half had security strategies for any of very significant threats. Many of these industry is satisfied with these protec- these. are from technologically-sophisticated tive measures and, in fact, many deem It is as if only half of the business countries far away such that only an themselves leaders in this.1 Yet from world locked their doors when going agency with transnational resources can their detailed responses far fewer actu- home at night. This is consistent with a effectively respond. ally had an overall security strategy, series of reports on inadequacies in our As lawyers our clients may call on us focused executive control, effective- information security regime going back to help mediate a law enforcement ness reviews and comprehension of to the last century.2 response to a security breach. It will be security events of the past year. In This is all within a seemingly pre- an important role in bringing account- other words, they were confident of modern environment where a law ability to this environment. It will also their InfoSec systems without evidence enforcement response may be an help protect our clients when, one day, to support it. afterthought. they may be called to account for their Related to this was confidence by a The U.S. Department of Justice is inability to protect their customers. strong majority that their organizations addressing some of these issues, partic- had a “culture of security.” Yet, again, ularly as to information of special ENDNOTES far fewer actually had practices in place competitive or national security value. 1. Changing the game: Key findings that would effectively implement that In Kentucky, the Federal Bureau of from The Global State of culture. Most still did not require third- Investigation has held an ongoing series Information Security Survey 2013, party vendors to report breaches of sessions to address the exfiltration of PriceWaterhouseCooper, LLP, affecting their data nor comply with competitive information out of universi- www.pwc.com/security (accessed their privacy policies. Less than half ties to overseas organizations. It is 2/8/2013). said they used only the customer data expanding this with a new program on 2. See, for example, the National they needed, creating unnecessary tar- information security practices, policies Cyber Leap Year Summit 2009 Co- get risk. and responses. Chairs Report, Sept. 16, 2009. 26 Bench & Bar March 2013 ELW_Mar13.qxd 3/15/13 9:42 AM Page 27 EFFECTIVE LEGAL WRITING IF IWERE IN THE MOOD By Phillip M. Sparkes identified many moods in the languages by respectively appending do or don’t to NKU Chase College of Law of the world, but English commonly uses a neutral imperative. only three: the indicative, the imperative, Wait for me, please. (neutral impera- he proper use of verbs is indispens- and the subjunctive. In the indicative tive) T able to clear communication. The mood, the speaker displays an attitude of Do wait a moment. (emphatic imper- verb is the heart of a sentence. The definiteness; in the imperative mood, the ative) stronger and sharper the verb, the speaker displays an attitude of insistence; Don’t wait up for us. (negative clearer is a sentence’s meaning. and in the subjunctive mood, the speaker imperative) Moreover, without a verb no group of displays an attitude of tentativeness. Much task-based writing uses the words is grammatically a sentence. Understanding verb moods is important imperative mood (together with active English verbs have five properties: because they help provide context for voice, present tense, and second person) person, number, tense, voice, and mood. what the writer is trying to say. to convey what the reader must do. Person is the property that identifies Think of a checklist you might develop whether the subject of the verb is speak- Imperative Mood for a client who consults you about a ing (first person), being spoken to A sentence in the imperative mood will.3 However, in instrumental legal (second person), or being spoken about indicates that the speaker desires for the writing – the stuff of contracts, wills, (third person). Number refers to action expressed in the sentence to take regulations, by-laws, and similar docu- whether a verb is singular or plural. place. Some of the simplest sentences in ments that set down rules4 – legal Tense refers to the time of the action of English are imperative sentences con- drafters often try to use the imperative a verb. Depending upon which gram- sisting of a single verb. The imperative when they mean instead to state a legal marian one cites for authority, English mood has many uses as demonstrated fact or conclusion. That is the proper has as few as two or as many as 12 by the following sentences. purpose of the indicative mood. tenses.1 Linguistic disagreements aside, Stop! (Single verb; sounds a warn- for the native speaker of English, per- ing.) Indicative Mood son, number, and tense tend to be Everyone get on the bus. (Issues a The indicative mood is the verb straightforward. Even without formal command.) mood used in ordinary speech or writing instruction in grammar, the native Come live with me and be my love / when making statements or asking ques- speaker can hear when a verb does not (Makes a request.) tions. Most of the sentences in this agree with its subject or when a verb’s Climb every mountain / Ford every essay are in the indicative mood. It is, in tense is wrong. stream / (Offers advice.) effect, the default mood in English. Awareness of voice and mood comes Turn left at the light onto South Any verb tense can be deployed later, perhaps as a middle school student Main Street. (Provides directions.) with the indicative mood, but in instru- in a language arts class or later still Sign on the dotted line. (Gives an mental legal writing the present tense when preparing to take college entrance instruction.) is preferable.5 As Martineau and exams. Voice indicates whether the sub- Keep off the grass. (Announces a Salerno observe, “The legal drafter is ject of the verb is acting or being acted prohibition.) seldom tempted to use the past tense, upon. In the active voice, the subject Help yourself to the salad bar. but there is a strong temptation to use performs the action; in the passive (Makes an offer.) the future tense. The drafter quite natu- voice, the subject receives the action. Notice that in most of these sen- rally thinks in terms of the future Voice gets much attention in legal writ- tences, the subject (you) is implied and because whatever is written today will ing circles because, as Goldstein and that all of them are in the second per- almost always affect only events in the Lieberman say in The Lawyer’s Guide son. A rare exception to the second future.”6 Using the present tense and to Writing Well, lawyers overuse the person construction occurs in a sentence the indicative mood avoids two prob- passive voice.2 like “Let’s go.” Each of the eight exam- lems, both related to the use of the Mood is the property that allows ples above is a “neutral” imperative. In word shall. speakers to express their attitude toward contrast, an imperative sentence can English commonly forms the future what they are saying. Linguists have take either emphatic or negative form tense by combining the modal verbs March 2013 Bench & Bar 27 ELW_Mar13.qxd 3/14/13 12:32 AM Page 28 shall or will with the bare infinitive of Kentucky law will govern at some The false imperative, however, sub- the main verb – “We shall overcome” unstated time in the future, but that jects some inanimate thing to an or “I will be true.” Using the future makes no logical sense. Drafting in the obligation.The drafter uses shall to indi- tense when drafting legal instruments present tense resolves the ambiguity: cate a legal fact or a legal result rather ignores the fact that a document speaks “The law of the Commonwealth of than to command. when it applies, not when it was Kentucky governs this agreement.” False imperative: A code enforce- drafted. The operative provisions of a The second problem avoided by use ment board shall consist of no statute, a contract, or a will, apply in of the present tense and the indicative fewer than three (3) members …. the present.7 mood is the false imperative. The (KRS 65.8811) Take, for example, a contract provi- grammatical signal for the imperative Alternative: A code enforcement sion like this: “The law of the is the use of the word shall: “The board consists of no fewer than Commonwealth of Kentucky shall gov- Seller shall deliver the goods to the three (3) members … . ern this Agreement.” Imagine that two Buyer at the Buyer’s place of busi- False imperative: As used in this years after execution a dispute arises ness.” When the imperative is used chapter and other provisions of and the parties turn to the agreement to properly, someone (here the contracting law, “state local finance officer” resolve a choice of law question. Seller) must do or refrain from doing shall mean the commissioner of Technically, the contract says that something. the Department for Local Government …. (KRS 68.001) Alternative: As used in this chapter and other provisions of law, “state local finance officer” means the commissioner of the Department for Local Government …. False imperative: A violation of this subsection by a state employee shall be considered cause for dis- missal …. (KRS 216.530) Alternative: A state employee’s viola- tion of this subsection is cause for dismissal. Constructions such as these false imperatives are so common that to many legal drafters they sound right. Nevertheless, the error is easy to spot – look for an inanimate object preceding 4XLQWDLURV 3ULHWR :RRG %R\HU 3$ the word shall. Here is another test – mentally substitute “has a duty to” for $WWRUQH\V DW /DZ shall (or “has a duty not to” for shall not). If the substitute phrase makes sense, the use is proper. $ PXOWLRI¿FH ODZ ¿UP LV VHHNLQJ Subjunctive Mood The subjunctive has almost disap- $77251(<6 IRU LWV /RXLVYLOOH DQG peared from the language and is thus more difficult to use correctly than /H[LQJWRQ RI¿FH 0XVW KDYH H[SHUL either the indicative mood or the imper- ative mood. Of the three moods, the HQFH LQ FLYLO WULDO DQGRU LQVXUDQFH subjunctive is the one most likely to GHIHQVH OLWLJDWLRQ 3RUWDEOH ERRN RI cause problems for writers. The most common use of the sub- EXVLQHVV LV D SOXV junctive mood is after if in clauses that state a hypothetical or a situation con- trary to fact. Subjunctive: If I were the defendant, (PDLO UHVXPH WR UHVXPH#TSZEODZFRP I would settle the case. Indicative: I think the defendant should settle the case. March 2013 28 Bench & Bar ELW_Mar13.qxd 3/14/13 12:32 AM Page 29 Subjunctive: If she had run, she 1967). But see Diana Hacker, A legal-encyclopedia/make-will- might have become a judge. WRITER’S REFERENCE 180-84 (6th quick-checklist-29480.html. Subjunctive: Had she run, she might ed. 2007). (A popular reference 4. See Elizabeth Fajans, Mary R. have become a judge. work at the college level, it lists Falk, and Helene S. Shapo, Legal Indicative: She did not become a nine tenses present, past, and future Writing for Law Practice 445-585 judge. with simple, perfect, and progres- (2010). Clauses that begin with if need not sive forms of each). Still others 5. See, e.g., Legislative Research always be in the subjunctive mood. For describe only three tenses (past, Commission, BILL DRAFTING example, if you suppose something that present, and future), each with four MANUAL § 304 (Inf. Bull. No. 117 could be true, you can correctly say, “If “aspects” (simple, perfect, progres- rev. 2011) (“Use the present tense I was his lawyer, I could settle that sive, and perfect progressive). See, and the indicative mood.”), avail- case.” e.g., Bryan A. Garner, THE able at http://www.lrc.ky.gov/ The subjunctive also finds use in REDBOOK: AMANUAL ON LEGAL lrcpubs/ib117.pdf. clauses beginning with that and express- STYLE 137 (2002). Aspect thus 6. Robert J. Martineau and Michael B. ing a requirement, suggestion, becomes a sixth property of a verb Salerno, LEGAL,LEGISLATIVE, AND recommendation, or wish. that expresses how the action, RULE DRAFTING IN PLAIN ENGLISH Subjunctive: The doctor advised that event, or state denoted by a verb 47 (2005). I be allowed visitors. relates to the flow of time. See, e.g., 7. See BILL DRAFTING MANUAL cited Indicative: The doctor said I could Heather Marie Kosur, Verb Aspect: at note 5 (“A statute is regarded as have visitors. Simple, Prefect, Progressive, constantly speaking. It speaks as of Subjunctive: The airline recom- Perfect-Progressive, Suite101.com, the time when it is read or applied. mends that you be at the airport by (last visited Feb. 1, 2013). It must, therefore, be written in the noon. 2. Tom Goldstein and Jethro K. present tense, except for stating a Indicative: The airline told you to Lieberman, THE LAWYER’S GUIDE condition precedent to its opera- arrive at the airport by noon. TO WRITING WELL 131-2-32 (2nd tion, which should be phrased in Subjunctive: Diane asked that her ed. 2002). the perfect tense if it is required to necklaces be put in the safe. 3. An example is at be completed before the statute Indicative: Diane wanted to keep her http://www.nolo.com/ applies.”) necklaces in the safe. Notice that in these examples the subjunctive mood uses be regardless of person or number. Absent the need for be, a sentence in the subjunctive mood www.LawReader.com would use the present tense stem alone: “I insist that he resign immediately.” A A Complete Law Library verb in the subjunctive mood has no In Your Pocket! third-person-singular variation. No single part of speech gives a writer more grief than the verb. Just don’t let it put you in a bad mood. The Most Current KY Appellate Decisions ENDNOTES Always at your Finger Tips! 1. Those grammarians who designate only two tenses (present and past) Current Kentucky Legal News Stories! base their classification on the form changes of single word verbs (e.g. Answers When You Need Them walk, walked). They do not include A Price You Can Afford! the future tense because it takes the present tense form plus an auxiliary verb (will walk). Grammarians who LawReader - $34.95/Month consider both auxiliaries and single word form changes describe six Ph:502-732-4617 tenses (past, present, future, past 314 7th Street perfect, present perfect, and future Carrollton, KY 41008 perfect). See John C. Hodges and Mary E. Whitten, HARBRACE COLLEGE HANDBOOK 66-67 (6th ed. March 2013 Bench & Bar 29 Congratulations! To the following members who reported 50 or more Pro Bono hours on their 2012-2013 Annual Dues Statement. Gregory Ward Butrum Paul D Deaton Courtney L Graham Christopher D Byers John Alexander Decamillis Rebecca Marie Gray Maurice A Byrne Jr Donna Sue Denham Douglas L Greenburg John Wolff Byrnes Timothy Denison George D Gregory Donald Howard Byrom Gerald Douglas Derossett James Richard Gregory Jr Robert Jeffrey Caldwell Stephanie A Dietz William D Gregory Kathryn Marie Callahan Dodd Douglas Dixon Andrew Jacob Gregory-Mabrey Nancy E Shelby Calloway Otis Doan Jr Maxine Sue Grossinger Catherine G Calvert Laurel S Doheny Margo L Grubbs Gerry L Calvert II Thomas Edward Donnellon Micah Gale Guilfoil Gerry Lynn Calvert Marshall Keith Dosker Sherif Guindi Andrew M Campbell LeeAnna Dowan-Hardy Martin Andrew Haas Jr David Wayne Carby Laurie Bilz Dowell Christopher W Haden Craig Michael Carmean Andrew G Downey William H Haden Jr David Wayne Carrithers Jennifer Ellen Drust Patrick Henry Haggerty Frankie Jeanne Carroll Richard E Duerr Jr Donna R Hale George R Carter Amy Rebecca Duncliffe Sherry Dawn Hall John Keith Cartwright Roy Alyette Durham II William M Hall Jr Mary P Cartwright Cyrus Gilmore Dutton III John Richard Hamilton Bethany Lane Catron R Sidney Easley Michael Allen Hamilton Robert L Caummisar Carl D Edwards Jr Ronald Lee Hampton John Thomas Chafin Jeffrey Galen Edwards John V Hanley Debi Faye Chalik Philip James Edwards Paula Lynne Harbour Mark D Chandler Terry Dennis Edwards Dennis Allan Hardin Robert Anthony Chandler Daniel F Egbers James Austin Harmon Jr Christopher E Chapman Dawn Renae Elliott Christopher M Harrell Galen L Clark Stephen E Embry Catherine J B Harrison Jeremy Lee Clark Christine Ryan Emison Glenda Jochum Harrison Joseph G Clark Jr Candy Yarbray Englebert Jack Bolden Harrison Heather Dawn Claycomb Justin Colby Ernest Robert E Harrison John Geoffrey Cobey Kenny Bryan Ernstberger Deborah Lynne Harrod George Willard Cochran Philip Carl Eschels Alan J Hartman Travis Lee Cochran Stephen E Esselman Cirris E C B Hatfield Maryam Abdul-Rahman Craig Steven Bell Kevin Clay Cockrell Angelena M E Etherton Matthew Stuart Hatfield Leslie W Abramson Gerald Lynn Bell Allison E Coffeen Ross Thomas Ewing Pankhuri Hatfield Shelton L Abramson Johnny Wade Bell Robert B Coffman Timothy Berry Falls Richard Wayne Hay Amelia F Adams Lindsey Gary Bell Elizabeth A B Coleman Edward W Farrell Jr Mary Gina Hayes James G Adams III Gregory Allen Belzley Trevor Howard Coleman Karen E Faulkner William H Hays Jr Jennifer K Adams J David Bender Edmond Collett Timothy Feldhaus Sheryl Egli Heeter Charles Joseph Adkins Brian Michael Bennett Adam Peter Collins Dennis Britt Fentress Rene B Heinrich Ferrell Adkins Bryan Edward Bennett Kelly Estes Collinsworth Kevin James Fiet S Marie Hellard Craig Edward Aguiar Aaron Joseph Bentley Peggy Gross Comstock Sarah E Fightmaster Jeffery Wade Helton Barbara Mary Albert John Scott Benton Luther C Conner Jr Marina Finegold Lynn Ethel Herald Jeffery Paul Alford John A Berger Michael Evans Conover John C Fischer Robert Anthony Herking Daniel Michael Alvarez Pierre H Bergeron Louise Cook Jerome S Fish Joshua David Hershberger Bruce Garrett Anderson Alonzo F Berry Jr Martha Farmer Copeland Thomas William Fitzgerald Paul V Hibberd Gary Webb Anderson Timothy James Berry Robert H Cornett Pashens La'Ray Fitzpatrick Patrick C Hickey Geraldine G Anderson Kevin Don Bishop Tanya Robin Cornette Lisa Louise Fleming Frederick A Higdon Kenneth V Anderson Jr Robert C Bishop Julia Field Costich Ben S Fletcher III Robert Gregory Higgins Terry R Anderson Bonita Kay Black Joseph Patrick Cottingham Mark Anthony Flores Monica J T Hill Michael C Arnold Bruce Everett Blackburn Vincent John Cotton Jr Robert Anthony Florio Paul J Hill Perry Russell Arnold Robert T Blackburn Jr Darrell Allen Cox Whitney C Flota G Robert Hines Vickie Masden Arrowood Donna Michelle Bloemer Jerry J Cox Jack W Flynn Joseph Brett Hines Linda Y Atkins Blaine Robert Blood John M Coy BJ Foley Ronald Elmore Hines Thomas Howard Atkins Jeffrey M Blum James M Crawford Algeria R Ford Henry L Hipkens John David Austin Richard Boling James Timothy Crawford Robert P Ford Clarence H Hixson Bruce Edward Avery Elizabeth R E Bond Christen G Creech F Larkin Fore Stacy Anne Hoehle Gretchen C Avery Harry B Borders Wynne Louis Creekmore Jr Donna J Foust Brian Edward Hoesl James Lee Avritt Jr John David Borders Jr Kenneth John Crehan Kelly H Fowler David John Hoff William C Ayer Jr B Scott Boster Scott Addison Crisler Bradley Wayne Fox Charles F Hoffman David Randall Azbill Michael D Bowling Roger L Crittenden Sarah Nicole Fox Maria Greta Hoffman Tiffany Gash Azzinaro Matthew Wayne Boyd Paul Kenneth Croley II Donald L Frailie II Edwin V Holder Jr Fred S Bachmeyer Tony Lee Boyd Charles J Crosby Danita Joleen Frederick John Marion Holder John Arthur Bahe Jr Gorman Bradley Jr Robert F Croskery Jonathan Freed Rebecca Lynn Holdredge Jason Paul Bailey Michael George Brautigam Eric Lewis Crump David Austin French Ruth Ann Hollan Brandon Wade Baird John G Brittain Jennifer H Culotta Fredric N Friske Charles F Hollis III H Nicholas Baker Donald A Bromagen Heather W Culp Jon Rhyan Fritz Marie Corazon Hoover Colleen E Balderson Lauren R Brooke Paul Freed Curry Stephen S Frockt Kevin L Hopkins Gerald L Baldwin Twila Mynhier Brooks Wolodymyr I Cybriwsky Angela Kortz Funke Elisha W L Hopson Richard Alan Bales Sean Edward Brown Felix M Czernin Ronald L Gaffney Dale Lee Horner Jr Catherine Hill Ball William Joshua Brown Ann Elizabeth D'Ambruoso James Burns Galbreath David S Hoskins DeAndrea Lynne Baltimore Brian Scott Brownfield Stephen K Dallas Marcus Daniel Gale Edward A Houlehan Jennifer H Barbagallo Robin L Browning James Michael Dalton G Keith Gambrel Nanci Marian House Jennifer Yue Barber Elizabeth K Broyles Marilyn S Daniel Chadwick Neal Gardner Joshua David Howard Heidi A Barcus Katherine R Bruenderman Gordon Shawn Daniels Robert C Garrison Jay Bruce Howd William Burr Bardenwerper Jeremy Wayne Bryant Rhoda Tolz Daniels Elmer J George Thomas M Howe Rodney David Barnes Mark Alan Bubenzer Lyman Sherman Darby Tamera Sue Giessler Lisa D Hughes Dina Abby Bartlett Joseph Daniel Buckles Katherine P Davenport Timothy J Gillenwater Derek D Humfleet Brent Robert Baughman Charles E Bullard Benjamin K Davis Jill Lyn Giordano Gene Lynn Humphreys Courtney Tigue Baxter Dennis Clay Burke Deborah L Davis Rhonda Duerr Girdner John Gordon Hundley David Berry Baxter Kathryn Burke John E Davis Trista P Goldberg John Earl Hunt Ruth Helen Baxter Kevin Crosby Burke Myrle Lynn Davis Elisabeth P Goldman Joseph Thomas Ireland Larry Lee Beard Tracey E Burkett Rebecca Jo Davis Steven Douglas Goodrum Teresa Ann Isaac Robert Anthony Beargie Tonya Sue Burns Richard Frank Dawahare John Sale Gordon Stephen Jay Isaacs Acena Johnson Beck Raymond M Burse Matthew Beatty DeMarcus Paul Hatton Gosnell Andrea Marie Janovic Jeffrey Allen Been Frederick M Busroe Jr Jeffery Bryant Dean Stephen Wayne Grace August Thomas Janszen Patrick Joseph Beirne David Brett Butcher Jeffery Bryant Dean Alissa J Graf-Schad Donn Randall Jewell 30 Bench & Bar March 2013 Harold M Johns Don H Major Ross Collins Owens III Daniel Edward Schmitt Christina M Tobin Barbara Lee Johnson Anwar K Malik Ashley Cleek Pack Gregory Thomas Schmitt Nathan Blaze Tomlin C Darlene Johnson Samuel Manly Paul Lester Pack Thomas David Schneid Christian L Torp Kevin Wayne Johnson Howard Oliver Mann Kenneth P Padgett W Fletcher Schrock Todd Kirby Trautwein Lon M Johnson Jr Quinten B Marquette James D Paitsel Marcus Shane Schulte David Clifton Travis Rickie A Johnson Anthony G Martin Andrew Michael Palmer Paul Roman Schurman Mason Lee Trenaman Tyler Hunt Johnson Eleanor F Martin Stephen Palmer Judy Freeman Schwank David Andrew Trevey William E Johnson Jason Nicholas Martin Addison Parker Ryan A Schwartz Barry M Trifiletti William Evan Johnson Jr Robert Paul Martin Timothy Alan Parker Lindsey Scott Michael D Triplett Robert H Johnston III Frank Mascagni III D Steven Parks Tasha Kay Scott Michael Thomas Troutman Michael B Joiner Marsha Dianne Mason C Fred Partin Thomas Arthur Scott Jr Noelle H True Karen Louise Jones Charles C Mattingly III Dan Franklin Partin M Thurman Senn Johnnie Lloyd Turner LeAnders Lisa Jones Jason Scott Matuskiewicz Djenita M Pasic Mary E Sergent Robert Steven Ukeiley Thomas M Jones Randall Scott May Josian A Passalacqua Stephen K Sesser Stuart Glen W Ulferts Judith K Jones-Toleman Robin C May Tandy C Patrick Robert F Sexton III K Megan Upton David Barry Jorjani Frederick M Mayer William Lewis Patrick Tricia P Shackelford Susan Jeanne Van Zant Zachary M Kafoglis Jennifer Lee McCaffrey Jaime Lynne Patterson Saeid Shafizadeh James J Varellas Jr Edwin F Kagin Susan Hanrahan McCain John Judson Patterson Hervey Linwood Shannon III Nicholas C A Vaughn Martin Z Kasdan Jr Bruce Lane McClure Kristen Reiss Pellino Mary Witt Sharp Iversy Zayas Velez Margaret E Keane Kyle Matthew McCormick John E Pence Mary Angela Shaughnessy Rebecca Cox Venter Robert W Keats Brigham A McCown Charlie M Perkins Kevin Scott Shearer Harold Louis Vick William Leslie Keene Jr Karen E McCracken Stephanie Judy Perlow Karen Lee Shinkle Stephen Deems Vidmer Michael James Keeney Stephen Gray McFayden Kirk M Pfefferman Robert S Silverthorn Jr David L Vish John Warren Keller Ramon McGee Caroline Lynch Pieroni Leslie N Simmons Robert Matthew Vital Laurie Goetz Kemp Michael David McKay Ned Barry Pillersdorf Gregory Dean Simms Greg Dewey Voss Katherine Kay Kendall Heather Mary McKeever Robert David Pinson Larry D Simon Austin P Vowels William Reeder Kenealy James Robert McKenzie Michael M Pitman Bobby Cierna Simpson Jan R Waddell James Venus Kerley Katherine E McKune Joseph Anthony Pitocco Michael G Sims Heather H Wade Thomas R Kerr Brendan Joseph McLeod Debra Seitz Pleatman Bruce W Singleton William R Wade Joshua Ryan Kidd William F McMurry Stephen Howard Poindexter Amber Hunt Sisco Norman Lee Wagner Jr James Albert Kidney Melissa D McQueen Shari Polur Robin Renee Slater Charles Aaron Walker Phillip Lynn Kimbel William V Meader Brenda Popplewell Michael R Slaughter Richard Adolph Walker Adrian Sol King Mark Stephen Medlin Carson P Porter Mat Antony Slechter Catherine I Wallace Bobby Rickey King Gwen Meehan Richard C Porter Jr Meredith K Slechter Mark B Wallace Edward Michael King Terra Lynn Meek Sherry P Porter Roxann R Smalley Richard Lee Walls Meredith Jones Kingsley Stephen C Megerle Stephen T Porter Mark Anthony Smedal Dana Geneen Walton-Macaulay Brandon Gordon Kinney Edwinna Kay Meister Clifford Keith Powell Danny Ray Smith William T Warner Harold Lewis Kirtley II David S Mejia Nicole M Prebeck James David Smith Keith A Warren Robert M Kirtley Mark Allan Melvin Haley Anne Prevatt Jessica Morgan Smith Sally Ann Wasielewski Sarah Hay Knight Michael C Merrick G Kent Price Joel Randolph Smith Patrick Henry Watson Roger Brandon Knoth James Albert Metry Kimberly S H Price Mitzie V Smith David G Webb Paul A Konstanty Gregory Scott Metzger Bruce D Prizant Robyn Rochelle Smith Derwin Lamont Webb Jan Kipp Kreutzer Adam Clayton Miller Patricia Marie Pryor Steven R Smith Katharine C Weber David Anthony Kruer Ann Bond Miller Benjamin TD Pugh Mark Francis Sommer Neil S Weiner James R Kruer Brendon D Miller Marco Mike Rajkovich Jr Jessica Tipton Sorrels Kevin Patrick Weis Michael David Kummer John Nathaniel Miller Michael R Ramage Kenneth Southall Andrea Keith Welker Martin N Kute Jonathan D Miller Thomas Anthony Rauf Amanda Marie Spalding Lisa M Wells John F Lackey Mark Daron Mitchell Ronald D Ray Dawn Lynne Spalding Patrick J Welsh Ashley Nicole Laferty Michael Mitchell Robert Thomas Razzano David Thomas Sparks Charles P West Jeffrey Frank Lagrew Kent David Mitchner Jason Charles Reichenbach Lloyd Emory Spear Charles S West Debra Hembree Lambert Edward C Monahan William Darlos Reynolds Alexander G Staffieri Gail Webb West Kenneth W Lampe Sam Huston Monarch Robert Edward Rich Robert Joseph Stanz James Moberly West Susan Turner Landis AnneLuise Montgomery Edwin Douglas Richards Mark Joseph Stanziano Steven L West Jennifer B Landry James H Moore III Lucy Barker Richardson John Warren Stapleton Paul Lewellin Whalen Joseph R Lane Kimberly Anne Moore Bonnie Jamae Rickert Leonard Joseph Stayton Jonathan Dale Whitaker David Richard Langdon Carlos Moran Charles E Ricketts Jr Jamie Lynne Stephens Larry Whitaker Timothy Daniel Lange James Walden Morgan Jr Nathan Riggs Kenneth S Stepp John Andrew White Edward Charles Lanter Kevan Morgan Nicholas W Riggs John F Stewart Scott White Kevin Paul Laumas Russell Brent Morgan Virginia Maria Riggs-Horton William Kash Stilz Jr Anna Stewart Whites Stephen Samuel Lazarus Brian M Morris Christopher R Ring Matthew Atwood Stinnett Jeffrey Kent Wicker Pamela S Ledgewood Nina Louise Moseley James O Risch Susan Faye Stivers Mary Jo Wicker Jonathon Clay Lee Teri Lynn Mosier Michael D Risley Paul Robert Stokes Mark Kindred Wickersham Astrida Liana Lemkins Martha Jane Mulholland Dennis Michael Ritchie Thomas K Stone Christopher D Wiest Roland Robert Lenard Leo Patrick Mulligan Stephanie Dawn Ritchie R James Straus Mary Erin Wilkins Mary A Lepper Aaron Michael Murphy Mary Kelly Rives Randall Scott Strause Howard Douglas Willen Ruth E Lerner Melinda Ann Murphy Theodore M Robbins Charles Robert Streich III Thomas Brandt Willenborg Marc H Levy C David Mussetter Charles E Roberts David C W Stuart Arthur Lee Williams Matthew Asher Levy Terri Renee Mussetter Joe T Roberts Donald Wes Sullenger Cordell Hull Williams Jr Bobbi Jo Lewis Gregg Y Neal Maryanna Robinson David Shawn Sullivan Michelle Lynn Williams Brandi N Lewis Joseph James Neely Benjamin D Rogers Michael P Sullivan Susan Lynn Williams Floyd Allen Lewis Kerry Lee Neff Larry Edward Rogers Thomas Edgar Swicegood Edward A Wilson Johnie Delbert Lewis Jr Charles C Nett Alan W Roles Laurel K Swilley John Paul Wilson William Andrew Lewis Rachael Anne Neugent Aileen Salud Rose Mary Patia Rae Tabar Mildred Gail Wilson Colin Hugh Lindsay Nicholas John Neumann Joshua Taylor Rose Anthony B Tagavi James Daniel Winchell Hollie B Lindsey Peter Canavan Newberry Jay Arthur Rosenberg Alex F Talbott William O Windchy J Robert Linneman Samuel Ryan Newcomb John M Rosenberg Damon R Talley Darran Winslow Joseph Scott Lisenbee Robert Brand Newman Martha Alice Rosenberg John Lewis Tate Meagan Ruth Winters Gary Alan Little Charlotte A Nickerson Peter Allen Roush David Allen Taylor Mark Alan Wohlander Rodger W Lofton Christina E Noble Michael A Rowady Edwin Evans Taylor Kay L Wolf Paul Joseph Loftus Dennis Leo Nordhoff II Brantley Cole Rowlen Kembra Sexton Taylor Joseph H Wolfe Kristin N Logan Christopher S Nordloh Lynette Shari Roy Leonard W Taylor III Mark H Woloshin John M Longmeyer Dennis L Null Andrew Lee Ruben Marsha Taylor Michael A Woloshin Philip Michael Longmeyer Daniel Brian O'Brien David Brian Rubinstein Michael A Taylor Bobby G Wombles Phyllis K Lonneman Stephen M O'Brien III Adam Michael Russell T Rankin Terry Jr Jerry Lee Wright Franklin W Losey George R O'Bryan Kristin M Russell Donald Anthony Thomas Sarah Charles Wright Marc Allen Lovell Michelle Marie O'Bryan Ronald Joseph Russell Pamela J P Thomas Todd Russell Wright Steven Brian Loy Paul Connor O'Bryan Harry J Rust Stephen H Thomas Shelli D D Yoakum Mark Allen Loyd Jr Lynne Marie O'Connor Kathryn W Ryan Cynthia C Thompson Michael M York Dace A Lubans-Otto Harry Bernard O'Donnell IV Perry Thomas Ryan David T Thompson Gregory Eugene Young Alison Case Lundergan-Grimes Michael A O'Hara Brian Keith Saksefski David W Thompson Mary James Young David Eric Lycan Rebecca Jean O'Neill Jeffery Lynn Sallee Gary Wayne Thompson Shane Alan Young Deborah Lydon Jesse Earl Offill Stephen Craig Sanders Kyle Thomas Thompson Bruce A Yungman James David Lyon John Edwin Olash Robert D Schaad Michael James Thompson Jennifer E Zell James William Lyon Jr Steven J Olshewsky Steven C Schletker Steven O Thornton John Frederick Zink Michael W Lyons K Osi Onyekwuluje Christopher P Schlueter Robert Joseph Thumann Thomas C Lyons David Andrew Owen Benjamin Schmidt Peter Lee Thurman Jr Kurt William Maier Annie L Owens John Anthony Schmidt Arlette Cooper Tinsley March 2013 Bench & Bar 31 ADVISORY ETHICS OPINION ETHICS OPINION KBA E-434 November 17, 2012 Subject: Ethical Considerations Relating to a Lawyer’s Use of Social Network Sites1 to Benefit a Client2 Question: May a lawyer access or otherwise use the social network site of a third person to benefit a client? Answer: A lawyer may access or otherwise use the social network site of a third person to benefit a client, as long as the conduct does not violate the Rules of Professional Conduct. References: SCR 3.130 (3.5), (4.1), (4.2), (4.3), (8.4) (a) and (c); Risk Managing Internet Social Network Investigations, 23 The Risk Manager (newsletter of Lawyers Mutual Ins. Co. of Ky.) (Spring 2012), www.lmick.com/resources/the-risk- manager-by-year/187-newsletter-2012.html; Journal of Computer-Mediated Communications (2007); San Diego Co. Bar Op. 2011-12 (2011); N.Y. State Bar Assn. Op. 843 (2010). Introduction The dramatic changes in information technology and the growth of social network sites such as Facebook have significantly changed the way people communicate. At the same time, these changes have made a wealth of personal information available over the internet. While many use these networks for social purposes, connecting with friends and family, they also can be used for business and professional purposes and may be a valuable resource for a practicing lawyer. Information posted on the social network site of an adverse party, a witness, juror or other third person could be very useful to the lawyer investigating a matter on behalf of a client. The Committee has received several inquiries regarding the use of social network sites and the extent to which lawyers may go to obtain access to information from the site of an opponent or other third person. In addressing these issues, the Committee perceived two challenges. First, ethical issues raised by modern technology were not even imagined by the drafters of the Rules of Professional Conduct. However, after considerable discussion the Committee concluded that, despite the advances in technology, the core ethical principles upon which the profession has relied for generations – honesty and fairness – remain unchanged. In the final analysis, though social networking may appear to raise new ethical issues that might require new rules, the current rules adequately address those issues that have been brought to the attention of the Committee. For example, if the Rules of Professional Conduct prohibit lawyers from contacting jurors or communicating with represented parties in the non-technical world, they prohibit such conduct in the virtual world. The underlying principles of fairness and honesty are the same, regardless of context. The second challenge related to the specific scenarios that the Committee was asked to address. We quickly realized that social networking is extraordinarily complex and is being modified constantly. In addition, new systems are being developed every day and it is beyond the Committee’s capacity to imagine what might develop in the future. Because of this, it is not possible to draft an opin- ion with specific scenarios that would be comprehensive and enduring. Nevertheless, the Committee believes it would be helpful to address the basic Rules of Professional Conduct that might be implicated when a lawyer accesses or otherwise uses a social network site to benefit a client. Specifically, those rules are: • SCR 3.130(4.1) Truthfulness in Statements to Others • SCR 3.130(4.2) Communication with Person Represented by Counsel • SCR 3.130(4.3) Dealing with Unrepresented Person • SCR 3.130(3.5) Impartiality and Decorum of the Tribunal • SCR 3.130(8.4(a)(c)) Misconduct Some inquiries have focused on whether a lawyer may access the site of a third person. If the site is “public,” and accessible to all, then there does not appear to be any ethical issue.3 If, however, access is limited, then there may be issues of what the lawyer can do to gain access. The Rules of Professional Conduct require truthfulness and honesty in dealing with others. Specifically, SCR 3.130 (4.1) prohibits a lawyer from making false statements.4 Also relevant is SCR 3.130(8.4), which prohibits the lawyer from engaging in dishonest conduct.5 Social network sites generally permit certain people to send messages to others. A lawyer’s communication with someone repre- sented by counsel is addressed by SCR 3.130(4.2), which generally prohibits direct contact.6 To the extent that someone is represented by counsel, it would apply. The Commentary to Rule 4.2 explains that the rule is to protect against uncounseled disclo- sures and applies even though the represented person initiates or consents to the contact.7 If a person with whom the lawyer is communicating is unrepresented, such as a witness,then SCR 3.130 (4.3) would apply.8 The Rules of Professional Conduct,9 as well as various statutes and court rules, prohibit improper contact with jurors. Those prohibitions would apply in the social network con- text as well. Finally, questions have arisen as to whether a lawyer may request a third person, such as a paraprofessional, investigator or other non-lawyer staff member, to obtain information through means that the lawyer could not ethically use. SCR 3.130 (8.4)10 and the Comments11 normally would prohibit such conduct. As a general rule, a lawyer cannot use another to do that which the lawyer is pro- hibited from doing. 32 Bench & Bar March 2013 Conclusion Social networking and other technological advances have provided, and will continue to provide, endless possibilities for obtain- ing information that may be useful in the representation of a client. These systems are extraordinarily complicated and constantly changing, and thus it would be impossible to address every possible ethical consideration that might arise in conjunction with the use of social network sites. Several core principles are clear. Every lawyer is bound by the Rules of Professional Conduct. Those rules prohibit a lawyer from misrepresenting material facts, or engaging in conduct involving dishonesty, fraud, deceit or misrepresenta- tion. They also provide that a lawyer may not communicate with persons represented by counsel or state or imply disinterest in dealing with unrepresented persons. In addition, the rules prohibit improper contact with jurors. Finally, Rule 8.4(a) prohibits a lawyer from using a third person to engage in conduct that would violate the Rules of Professional Conduct, if done by a lawyer. A lawyer must keep all of these rules in mind when deciding the appropriate use of social network sites. Note to Reader This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530. Note that the Rule provides: “Both informal and formal opinions shall be advisory only; however, no attorney shall be disciplined for any professional act performed by that attorney in compliance with an informal opinion furnished by the Ethics Committee member pursuant to such attorney’s written request, provided that the written request clearly, fairly, accurately and completely states such attorney’s contemplated professional act.” 1. Social networks, as commonly understood at the time this opinion was written, include web-based services that allow individuals to build a public or semi-public bounded system; to identify users with whom they share a connection and view and traverse their list of connections and those made by others in the system. boyd, d. m. and Ellison, N. B., Social network sites: Definition, history, and scholarship, Journal of Computer-Mediated Communications (2007), http://jcmc.indiana.edu/vol13/issue1/boyd.ellison.html. 2. This opinion only addresses ethical considerations relating to the lawyer’s use of social network sites of third persons. It does not address the ethical restrictions on a lawyer’s use of his or her own social network site for advertising or other purposes. 3. See, San Diego Co. Bar Op. 2011-2 (2011). See also, N.Y. Bar Assn. Op. 843 (2010). 4. SCR 3.130(4.1) provides: “In the course of representing a client a lawyer:(a) shall not knowingly make a false statement of material fact or law to a third person; and (b) if a false statement of material fact or law has been made, shall take reasonable remedial measures to avoid assisting a fraudulent or criminal act by a client including, if necessary, disclosure of a material fact, unless prohibited by Rule 1.6.” 5. SCR 3.130(8.4(a),(b),(c)) provides: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation….” 6. SCR 3.130(4.2) provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” 7. See Comments 1 and 3 to Rule 4.2. 8. SCR 3.130(4.3) provides: “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person. The lawyer may suggest that the unrepresented person secure counsel.” 9. SCR 3.130(3.5) provides: “A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person as to the merits of the cause except as permitted by law or court order; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law, local rule, or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communica- tion involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt the tribunal.” 10. SCR 3.130(8.4) provides that it is “professional misconduct for a lawyer to assist or induce another to engage in conduct that violates the Rules of Professional Conduct.” 11. Comment 1 to Rule 8.4 provides: “Lawyers are subject to discipline when they violate or attempt to violate the Rules of Profes- sional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf.” March 2013 Bench & Bar 33 ADVISORY ETHICS OPINION ETHICS OPINION KBA E-435 November 17, 2012 Subject: Plea Agreements Waiving the Right to Pursue an Ineffective Assistance of Counsel Claim Question 1: May a criminal defense lawyer advise a client with regard to a plea agreement that waives the client’s right to pur- sue a claim of ineffective assistance of counsel as part of the waiver of the right to collaterally attack a conviction covered by the plea agreement? Answer: No. Question 2: May a prosecutor propose a plea agreement that requires a waiver of the defendant’s or potential defendant’s right to pursue a claim of ineffective assistance of counsel relating to the matter that is the subject of the plea agreement? Answer: No. References: SCR 3.130 [Kentucky Rules of Professional Conduct] (1.7, 1.8(h)(1), 3.8(b), 3.8 Cmt 1, 8.4(a)); Va. State Bar Legal Eth. Op. 1857 (2011); Mo. S. Ct. Adv. Comm. Formal Op. 126 (2009); Ohio Adv. Op. 2001-6 (2001); Vt. Adv. Eth. Op. 95-04 (1995); N.C. Eth. Op. RPC 129 (1993). Tex. Eth. Op. 571 (2006) Az. Eth. Op. 95-08 (1995) Question 1 Discussion Defense Counsel May Not Advise a Client about a Plea Agreement Involving a Waiver of the Right to Pursue an Ineffective Assistance of Counsel Claim Related to the Subject of the Plea Agreement Prosecutors sometimes propose plea agreements that bar collateral attacks on convictions that result from the plea agreements. Sometimes these plea agreement proposals require the defendant to waive the right to pursue a claim of ineffective assistance of counsel. The question that has arisen is whether defense counsel may ethically advise the client about a plea agreement proposal that bars the client from later pursuing a claim of ineffective assistance of counsel related to the conviction that results from the plea agreement. In effect, the question is whether defense counsel may advise the client regarding a waiver of a claim of ineffective assis- tance of counsel that would be based on the attorney’s own conduct in representing the client. Because the offered plea agreement creates a conflict of interest under SCR 3.130(1.7) for the attorney that cannot be waived, such an attorney ethically cannot advise a client about such an agreement. SCR 3.130(1.7(a)) states in pertinent part: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: … (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s respon- sibilities to another client, a former client or a third person or by a personal interest of the lawyer. The lawyer in the plea agreement setting has a “personal interest” that creates a “significant risk” that the representation of the client “will be materially limited.” The lawyer has a clear interest in not having his or her representation of the client challenged on the basis of ineffective assistance of counsel. The lawyer certainly has a personal interest in not having his or her representation of the client found to be constitutionally ineffective. Even in cases of concurrent conflict, SCR 3.130(1.7) allows a representation to occur if, among other requirements, “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.” SCR(1.7(b)(1)). A lawyer cannot reasonably believe that he or she can provide competent representation when the lawyer is tasked with advising the client about a plea agreement involving a waiver of the right to pursue a claim of ineffective assistance of counsel when that claim would be based on the attorney’s own conduct in representing the client. This reasoning is consistent with the reasoning surrounding SCR 3.130(1.8(h)(1)). Rule 1.8(h)(1) states: “A lawyer shall not: (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently repre- sented in making the agreement.” Thus, a lawyer cannot ethically advise the client when the issue is the attorney’s own conduct. Rule 1.8(h)(1) does not directly apply to the plea agreement situation because the issue in the plea agreement situation is a waiver of the client’s ineffective assistance claim, not a waiver or limitation of a malpractice claim. Yet, the underlying basis for a malprac- tice claim is the attorney’s own professional conduct. Likewise, the underlying basis for an ineffective assistance of counsel claim is the attorney’s own professional conduct. If a lawyer ethically cannot advise a client about a malpractice limitation, a lawyer ethically cannot advise a client about an ineffective assistance of counsel waiver. Other ethics bodies have reached the conclusion that defense counsel may not advise the client on a plea agreement when the agreement involves a waiver of the right to later claim ineffective assistance of counsel. See, e.g., Va. State Bar Legal Eth. Op. 1857 (2011); Mo. S. Ct. Adv. Comm. Formal Op. 126 (2009); Ohio Adv. Op. 2001-6 (2001); Vt. Adv. Eth. Op. 95-04 (1995); N.C. Eth. Op. RPC 129 (1993). But see Tex. Eth. Op. 571 (2006) (conflict of interest must be evaluated on a case by case basis); Az. Eth. Op. 95-08 (1995)(Rule 1.8 not a bar to defense counsel’s participation; no discussion of the conflict of interest). 34 Bench & Bar March 2013 Question 2 Discussion A Prosecutor May Not Propose a Plea Agreement Requiring a Waiver of the Right to Pursue an Ineffective Assistance of Counsel Claim Relating to the Matter that is the Subject of the Plea Agreement A prosecutor cannot ethically offer a plea agreement to a defendant or potential defendant that requires that the person waive his or her right to pursue an ineffective assistance of counsel claim relating to the representation in the matter that involves the plea agreement. Accord Va. State Bar Legal Eth. Op. 1857 (2011); Mo. S. Ct. Adv. Comm. Formal Op. 126 (2009); Ohio Adv. Op. 2001-6 (2001); N.C. Eth. Op. RPC 129 (1993). As Comment 1 to SCR 3.130(3.8) states: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. SCR 3.130(3.8) Cmt 1. SCR 3.130(3.8(b)) requires a prosecutor to “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.” In addition, SCR 3.130(8.4(a)) states: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. SCR 3.130(8.4(a)). It is inconsistent with the prosecutor’s role as a minister of justice and the spirit of SCR(3.8(b)) for a prosecutor to propose a plea agreement that requires the individual to waive his or her right to pursue a claim of ineffective assistance of counsel. Accord Mo. S. Ct. Adv. Comm. Formal Op. 126 (2009). In making such a proposal, a prosecutor is assisting or inducing another lawyer, defense counsel, to violate the Rules of Profes- sional Conduct, conduct proscribed by Rule 8.4(a). Accord Va. State Bar Legal Eth. Op. 1857 (2011). Note to Reader This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Ken- tucky Supreme Court Rule 3.530. Note that the Rule provides: “Both informal and formal opinions shall be advisory only; however, no attorney shall be disciplined for any professional act performed by that attorney in compliance with an informal opinion furnished by the Ethics Committee member pursuant to such attorney’s written request, provided that the written request clearly, fairly, accurately and completely states such attorney’s contemplated professional act.” March 2013 Bench & Bar 35 ADVISORY ETHICS OPINION UNAUTHORIZED PRACTICE OF LAW OPINION KBA U-64 November 2012 Question 1: Can a non-lawyer request that a board or agency initiate an administrative action and grant a hearing or file an answer on behalf of an otherwise unrepresented corporation or other artificial entity in an administrative hearing? Answer: No. Question 2: Can a non-lawyer call himself or others, on behalf of an otherwise unrepresented corporation or other artificial entity, as a witness and provide fact testimony at an administrative hearing? Answer: No. Question 3: Can a hearing officer call a witness to provide fact testimony at an administrative hearing? Answer: Qualified yes. While the hearing officer may not call a witness specifically on behalf of the corporation or other arti- ficial entity the hearing officer may call a witness in order to elicit all relevant facts that may be necessary to conduct the hearing. References: SCR 3.020, Turner v. Kentucky Bar Association, 980 S.W.2d 560 (Ky. 1998), SCR 3.130-5.5, Countrywide Home Loans, Inc. et. al v. Kentucky Bar Association,113 S.W. 3d 105 (Ky. 2003), KBA U-52, KBA U-3, KBA U-12, KBA U-15, KBA U-17, KBA U-43, Kentucky State Bar Assn. v. Henry Vogt Machine Co., 416 S.W.2d 727 (Ky. 1967), KBA U-34, Secretary, Labor Cabinet v. Boston Gear, Inc., 25 S.W.3d 130 (Ky. 2000). AUTHORITY SCR 3.020 defines the practice of law. The Supreme Court of Kentucky has the exclusive authority to promulgate rules governing the practice of law. Turner v. Kentucky Bar Association, 980 S.W.2d 560 (Ky. 1998). The compelling reason for such regulation is to protect the public against rendition of legal services by unqualified persons. Com- ment to Kentucky Rule of Professional Conduct SCR 3.130-5.5. The practice of law is defined by SCR 3.020 as any service “involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requir- ing the services.” The “unauthorized” practice of law is the performance of those defined services by non-lawyers for others. Countrywide Home Loans, Inc. et. al v. Kentucky Bar Association,113 S.W. 2d 105 (Ky. 2003). Corporations are not permitted to practice law in the Commonwealth. Kentucky Bar Association v. Tussey, 476 S.W.2d 177 (Ky. 1972); KBA U-32; Kentucky Bar Association v. Legal Alternatives, Inc., 792 S.W.2d 368 (Ky. 1990). OPINION The questions presented in this opinion are not completely new and for the most part have been addressed in previous formal unau- thorized practice opinions. The KBA, in Opinion U-52, addressed these issues in part when presented with the question of whether or not a non-lawyer may represent parties before the Kentucky Department of Workers’ Claims. The opinion held that non-attorneys may not represent parties before the agency because “[r]epresentation of parties before administrative agencies is the practice of law, as it necessarily involves legal advice, counsel and advocacy.” Also, U-52, summarizing previous related opinions, stated: “Non-lawyers have been prohibited from representing corporations and individuals before the Kentucky Department of Transporta- tion (Opinion KBA U-3); before a city civil service commission (Opinion KBA U-12); before the Kentucky Unemployment Insurance Commission (Opinion KBA U-15); before the Kentucky Board of Tax Appeals (Opinion KBA U-17) and in quasi-adjudicative proceed- ings before zoning boards and zoning authorities (Opinion KBA U-43) See also Kentucky State Bar Assn. v. Henry Vogt Machine Co., Ky., 416 S.W.2d 727 (1967).” In addition to the UPL Opinions referenced above, the Bar Association has also held that a non-attorney may not appear before a faculty grievance committee as a representative of another individual in proceedings before the university faculty grievance commit- tee. (KBA U-34). Furthermore, U-34 advises that where a member of a quasi-judicial body knows that the person is not licensed to practice law in the Commonwealth of Kentucky, that member would be aiding in the unauthorized practice of law to allow the non- attorney to appear in front of that committee. However, Secretary, Labor Cabinet v. Boston Gear, Inc., 25 S.W.3d 130 (Ky. 2000) clarifies that it may be necessary for a hearing officer to “ ‘fully elicit’ all relevant facts” at a hearing, which may require taking testi- mony from a non-attorney. Id. at 134. That would not be considered the unauthorized practice of law. Note to Reader This unauthorized practice opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). Note that the Rule provides in part: “Both infor- mal and formal opinions shall be advisory only.” 36 Bench & Bar March 2013 Kentucky Bar Association Statements of Financial Position June 30, 2012 and June 30, 2011 Unaudited* -XQH -XQH $66(76 &DVK &DVK %RQG VLQNLQJ IXQG ,QYHVWPHQWV $FFRXQWV UHFHLYDEOH 'XH IURP DIILOLDWH ,QWHUHVW UHFHLYDEOH 3UHSDLG H[SHQVHV 7RWDO &XUUHQW $VVHWV 3URSHUW\ EXLOGLQJ HTXLSPHQW QHW 7RWDO $VVHWV /,$%,/,7,(6 $FFRXQWV SD\DEOH 'XH WR DIILOLDWH $FFUXHG H[SHQVHV )XQGV KHOG &XUUHQW PDWXULWLHV RI ERQGV SD\DEOH 7RWDO &XUUHQW /LDELOLWLHV 'HIHUUHG UHYHQXH %RQGV SD\DEOH OHVV FXUUHQW PDWXULWLHV 7RWDO /LDELOLWLHV 1(7 $66(76 8QUHVWULFWHG %RDUG GHVLJQDWHG 8QGHVLJQDWHG 7RWDO /LDELOLWLHV 1HW $VVHWV * Pursuant to SCR 3.120 (8), there shall be an annual audit of the Kentucky Bar Association. The Audited Financial Statements and Report can be found on the website at http://www.kybar.org/documents/membership/KBA_ nancial_ stmt.pdf March 2013 Bench & Bar 37 38 Bench & Bar March 2013 lmick.qxd 3/14/13 1:24 AM Page 39 Does Your Malpractice Provider: Understand Your Business OR Just Want Your Business In-house counsel from left to right: Pete Gullett, Jane Broadwater Long, Del O’Roark, Bob Breetz Lawyers Mutual Understands Your Business. By Kentucky Lawyers; For Kentucky Lawyers For 25 years Lawyers Mutual has stood by its mission to support Kentucky Lawyers. If you have a question, need assistance with risk management, are looking for risk management resources, or just want a quote for your professional liability insurance, contact us using the information below. 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When You Need a Court Bond. Anytime, Anywhere. Lawyers Mutual Insurance Agency s 877.553.6376 s Fax: 888.658.6761 s www.lmia.onlinecourtbonds.com JUDICIAL ETHICS OPINION JUDICIAL ETHICS OPINION JE-123 February 19, 2013 This opinion addresses the following question: MAY A DISTRICT COURT TRIAL COMMISSIONER CONTINUE TO SERVE IN THAT CAPACITY IF THE COMMISSIONER’S LAW PARTNER BECOMES AN ASSISTANT COMMONWEALTH’S ATTORNEY? The Committee is of the opinion, Judge Taylor dissenting, that if the Commissioner’s law partner should become an Assis- tant Commonwealth’s Attorney, there would be an appearance of impropriety and the Commissioner could not continue to serve. THE FACTS AS STATED BY THE COMMISSIONER The Commissioner offers for consideration the fact that he serves under the authority of SCR 5.000 et seq. and has only the powers specifically listed under SCR 5.030. As to criminal cases he recites that he only has authority to issue search war- rants and warrants of arrest; to examine any charge and commit the defendant to jail or hold him to bail or other form of pretrial release; and to accept a plea of guilty at the time the charge is examined, and impose a sentence for an offense punish- able only by fine of $500 or less. He recites that he is not permitted to conduct preliminary hearings, or hold any hearings on which jail is a potential sentence, whether it is a misdemeanor or felony. The Commissioner advises that the Commonwealth’s Attorney does not appear before the District Court in his judicial cir- cuit, and that the Commonwealth’s Attorney has never approached him for the issuance of search warrants or warrants of arrest. He advises that his partner would keep no files pertaining to his employment at the partnership office, as all such files are kept at the office of the Commonwealth’s Attorney. He states that neither his partner, nor anyone from the office of the Commonwealth’s Attorney, would practice before him as Trial Commissioner, and that he would not practice any criminal law in the circuit court while his partner was an Assistant Commonwealth’s Attorney. AUTHORITIES CITED BY THE COMMISSIONER The Commissioner cites the following as support for his position that the appointment of his partner as an Assistant Com- monwealth’s Attorney would not create a conflict. On July 24, 1989, the Commissioner wrote the Committee a letter posing the same question now in issue. On August 7, 1989, the Commissioner had a telephone conversation with then Committee Chairman, B. M. Westberry, regarding the ques- tion. The Commissioner’s handwritten notes memorializing that conversation indicate that a copy of JE 47 would be sent to him, with the following response by Chairman Westberry: No problem but I must disqualify from appearance before me by Comm. Attys office. By letter of August 7, 1989, the Executive Secretary of the Committee sent the Commissioner a copy of JE 47. In JE 47, published in October of 1983, the question posed was: Where the county attorney and the trial commissioner for district court are partners in civil practice, must the trial commissioner disqualify himself in all cases in which the county attorney appears, both civil and criminal The Committee responded: “Yes, except in emergency situations where a failure to act would result in a frustration of the criminal justice process.” The opinion referred to JE 44, published in January of 1983, in which the pertinent question was: May the partner of a district court trial Commissioner practice in that court? If so, are there any limitations on the practice in which he may engage? 40 Bench & Bar March 2013 The Committee responded: “He may practice in that court as in any other court. In cases in which the trial Commissioner is acting, the latter must disqualify himself in appropriate cases as provided in Canon 3C.”1 In both JE 44 and JE 47 the essen- tial reasoning was that there was an appearance of impropriety. The Commissioner also cites the Committee to KBA E-214, published in March of 1979, and JE 47 also refers to that ethics opinion. OPINION With due respect for the cited KBA ethics opinion2 and JE 44 and JE 47, those opinions were issued without the benefit of Commonwealth v. Brandenburg, 114 S.W.3d 830 (Ky. 2003), and it is that case by which the Committee is to be guided in responding to the immediate question. There, the Court stated, at 832: The sole issue before us is whether a trial commissioner who is married to an employee of the Commonwealth Attor- ney’s office, “manifest[s] that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure.” [Citation omitted] We hold that in the case sub judice, the trial commissioner, due simply to her marital status, was not the neutral and detached magistrate that the Fourth Amendment to the United States Constitution, Section 10 of the Kentucky Constitution, and the United States Supreme Court guarantee. Brandenburg went on to discuss the application of the Code of Judicial Conduct, SCR 4.300. The Court noted that Canon 2 of the Code states, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Canon 3E(1) requires that a judge disqualify himself when his impartiality “might reasonably be questioned.” The Court also said: SCR 5.070 makes trial commissioners of the district court subject to the Supreme Court’s rules governing the retirement and removal of judges. Also, SCR 5.050 governs the disqualification of trial commissioners and holds that “[a] trial commissioner shall disqualify himself in all matters in which he has an interest, relation- ship or bias that would disqualify a judge.” At 833, the Court stated: The Court of Appeals has addressed such a situation in Dixon v. Commonwealth, Ky. App., 890 S.W.2d 629 (1994), wherein it held that a trial commissioner who was the law partner of the County Attorney was not a neutral and detached magistrate capable of making probable cause determinations for search warrants. Id. at 630. The court in Dixon found that the mere association with the County Attorney created an appearance of impropriety, in violation of Canon 2 of the Code, which destroyed the trial commissioner’s character as a neu- tral and detached issuing authority. Id. at 631. We agree with the Court of Appeals’ reasoning in Dixon, and hereby extend the holding of that case to apply to situations such as in the case at bar, where the trial commis- sioner is the spouse of an employee of the Commonwealth Attorney’s office. Referring to its own opinions on similar matters, the Court stated: However, this Court has spoken to this issue on only a few instances. In O’Hara v. Kentucky Bar Association, Ky., 535 S.W.2d 83 (1975), we affirmed an ethics opinion adopted by the Kentucky Bar Association that stated a trial com- missioner could not be a member of the same law firm as the Commonwealth Attorney. Brandenburg concluded, at 834: Today’s opinion takes a harsher stance against the propriety of judges and trial commissioners having close personal relationships with others who may be in a position to influence their decision-making. We reiterate that there need not be an actual claim of bias or impropriety levied, but the mere appearance that such an impropriety might exist is enough to implicate due process concerns. Returning to Dixon, supra, the Committee perceives no difference, for purpose of analysis, between a trial commissioner being a partner of a county attorney or being the partner of an attorney for the Commonwealth, since both county and Com- monwealth’s attorneys have prosecutorial duties. March 2013 Bench & Bar 41 The opinion in O’Hara, supra, is a model of brevity, but powerful in its simplicity.3 The Court said: The appellants, members of the same firm who have occupied those positions for a number of years, argue that there have never been accusations or insinuations of impropriety during the time of this professional asso- ciation or of a failure to fulfill the duties required by their respective offices. They point out the unlikelihood or virtual impossibility of effecting any impropriety with regard to their respective offices. The appellees say that no impropriety is suggested with regard to these appellants. The point is not whether impropriety exists, but that any appearance of impropriety is to be avoided. We are of the opinion that such association carries with it an appearance of impropriety so that it should not be permitted. The Committee believes that the conclusions of the Court in Brandenburg, Dixon and O’Hara compel our opinion that, should the law partner of the inquiring Commissioner become an Assistant Commonwealth’s Attorney, there would be an appearance of impropriety, and the Commissioner could no longer serve as a commissioner. Please be aware that opinions issued by or on behalf of the Committee are restricted to the content and scope of the Canons of Judicial Ethics and legal authority interpreting those Canons, and the fact situation on which an opinion is based may be affected by other laws or regulations. Persons contacting the Judicial Ethics Committee are strongly encouraged to seek counsel of their own choosing to determine any unintended legal consequences of any opinion given by the Committee or some of its members. cc: Donald H. Combs, Esq. The Honorable Jeff Taylor, Judge The Honorable Jean Chenault Logue, Judge The Honorable Jeffrey Scott Lawless, Judge Jean Collier, Esq. 1. Current Canon 3E. 2. While this Committee takes no issue with the substance of KBA E-214, it should be noted that ethics opinions of the Ken- tucky Bar Association apply only to lawyers. Judges, and those persons acting in a judicial capacity, are governed by the Kentucky Code of Judicial Conduct, SCR 4.300 et seq. 3. The Committee recognizes that the Court was considering a KBA ethics opinion, but believes the principles involved are directly on point. 42 Bench & Bar March 2013 IN RE: ORDER AMENDING RULES OF THE SUPREME COURT (SCR) 2013-04 The following rule amendment shall become effective upon entry of this order. SCR 4.300 Kentucky Code of Judicial Conduct CANON 5: A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY The amendments to subsections (1) and (2) and the Commentary of section (A) and subsection (2) of section (B) of CANON 5 of SCR 4.300 shall read: A. Political Conduct in General. (1) Except as permitted by law, a judge or a candidate for election to judicial office shall not: (a) campaign as a member of a political organization; (b) act as a leader or hold any office in a political organization; (c) make speeches for or against a political organization or candidate or publicly endorse or oppose a candidate for public office; (d) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, except as author- ized in subsection A(2); Commentary A judge or a candidate for election to judicial office retains the right to participate in the political process as a voter. A judge or a candidate for election to judicial office may publicly affiliate with a political organization but may not campaign as a member of a political organization. Where false information concerning a judicial candidate is made public, a judge or candidate having knowledge of the facts is not prohibited by Section 5A(1) from making the facts public. Section 5A(1) does not prohibit a judge or candidate from privately expressing his or her views on judicial candidates or other candidates for public office. (2) A judge or a candidate for election to judicial office may purchase tickets to political gatherings for the judge or candi- date and one guest, may attend political gatherings and may speak to such gatherings on the judge’s or candidate’s own behalf. B. Campaign Conduct. (2) A judge or a candidate for judicial office shall not solicit campaign funds in person. A judge or a candidate for judicial office may establish committees of responsible persons to secure and manage the expenditure of funds for the campaign and to obtain public statements of support for the candidacy. A candidate’s committees may solicit funds for the campaign no earlier than 180 days before a primary election. A candidate’s committees may not solicit funds after a general election (See KRS 121.150). A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or a member of the candidate’s family Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. ENTERED this the 18th day of February, 2013. March 2013 Bench & Bar 43 Bar News_March.qxd 3/14/13 11:54 PM Page 44 KENTUCKY BAR NEWS Salmon P. Chase vidual mandate provision of the year. “Most people who get health Affordable Care Act violates the insurance from their employers have no College of Law Commerce Clause. idea how much it costs,” Professor Salmon P. Chase, the College of Huberfeld says in the article. “Many Law’s namesake, began his legal career Americans believe this is something Barry Scheck Delivers Special Lecture as a young lawyer defending runaway they get free. But employers pay lower to Chase Students and Faculty slaves in Cincinnati. He went on to wages because they provide insurance.” arry Scheck, professor of law and serve as U.S. Senator from Ohio, Professor Huberfeld teaches struc- co-director of the Innocence Project Governor of Ohio, a candidate for the tural constitutional law and a variety of atB Benjamin N. Cardozo School of Law Republican presidential nomination, healthcare law classes as well as lec- at Yeshiva University, delivered a spe- Secretary of the Treasury under tures at the College of Public Health cial lecture to Chase students and President Abraham Lincoln, and Chief and the College of Medicine. Her schol- faculty on January 15. Justice of the United States. arship focuses on the cross-section of Professor Scheck is known for his constitutional law and federal healthcare landmark litigation setting standards for University of programs with a particular interest in forensic applications of DNA technology. Kentucky federalism and Spending Clause His work in this area has shaped the jurisprudence. Her article entitled course of case law across the country and College of Law Federalizing Medicaid, 14 U. PA. J. led to an influential study by the CONST. L. 431 (2011), was cited by National Academy of Sciences on foren- Professor Nicole Huberfeld Quoted in Supreme Court Justice Ruth Bader sic DNA testing, as well as important New York Times Article Ginsburg’s opinion in NFIB v. Sebelius. state and federal legislation. In addition rofessor Nicole Huberfeld, Gallion Huberfeld has recently completed work to the work he has done through P& Baker Professor of Law at the on Plunging into Endless Difficulties: Cardozo’s Innocence Project, which has University of Kentucky College of Law Medicaid and Coercion in the represented dozens of men who were and Bioethics Associate at the Healthcare Cases (with Weeks Leonard exonerated through post-conviction DNA University of Kentucky College of and Outterson), which is forthcoming in testing, Scheck has represented such Medicine, was quoted in a Jan. 29, 2013, BOSTON UNIVERSITY LAW REVIEW. notable clients as Hedda Nussbaum, O. J. New York Times article, “To Open Eyes, Simpson, Louise Woodward, and Abner W-2s List Cost of Providing a Health Judicial Conversation Series Louima. Prior to joining the Cardozo Plan,” about the surprise many find Announced faculty, he was a staff attorney at the when they realize the total cost of their he University of Kentucky College of Legal Aid Society of New York. employer-sponsored health coverage. Law is pleased to announce the 2013 Chase alumnus Martin Pinales ’68 The 2010 health care law requires TJudicial Conversation Series: a series of facilitated Professor Scheck’s visit to disclosure of these costs, starting this thoughtful and engaging interactions Chase. Randy Barnett Presents the Career of Chief Justice Salmon P. Chase andy Barnett, Carmack Waterhouse Professor of Legal Theory at the GeorR getown University Law Center, delivered his presentation, “From Anti- Slavery Lawyer to Chief Justice: The Remarkable Career of Salmon P. Chase,” to Chase students and faculty on February 6. Professor Barnett is one of the most renowned and widely cited constitu- tional law scholars in the nation. Among his many accomplishments, he is the author of Restoring the Lost Constitution: The Presumption of Liberty; he briefed and argued Gonzalez v. Raich in the U.S. Supreme Court for the respondent; and he was the chief architect of the argument that the indi- March 2013 44 Bench & Bar Bar News_March.qxd 3/15/13 9:37 AM Page 45 KENTUCKY BAR NEWS between members of Kentucky’s highest first-year, upper level, criminal proce- Extra-curricular Criminal Law court and students preparing for a career dure courses continue to draw a huge Opportunities in law. Each forum will take place in the student enrollment. Chances are many randeis students are exposed to College of Law Courtroom, 620 South of you had Professor Les Abramson for much more than the criminal black Limestone. All Judicial Conversation one of these letterB law as they have the opportunity to Series forums are open to the public. courses. Professor enroll in either a criminal justice extern- Check back on www.law.uky.edu/speak- Abramson has ship or the Kentucky Innocence project. ers for updates and a full list of upcoming authored several Students enrolling in the criminal justice 2013 speakers. casebooks and externship may be assigned to one of the February 6: Justice Bill Cunningham study aids on civil following agencies: Louisville-Jefferson February 27: Justice Daniel J. procedure, criminal County Public Defender, Jefferson Venters procedure and pro- County Attorney, or Commonwealth March 20: Justice Lisabeth Les Abramson fessional Attorney. Students are assigned to cases Abramson responsibility. For practicing lawyers in coming into those offices and prepare April 3: Deputy Chief Justice Mary Kentucky, he has written books about and try them under the supervision of C. Noble criminal procedure and criminal law. both an attorney in the agency and a Date TBA: Justice Will T. Scott He has received University of member of the Brandeis School of Law Date TBA: Chief Justice John D. Louisville awards for his teaching, faculty. These externships are very pop- Minton, Jr. research and serv- ular and often result in permanent job ice. If you placements for our students. graduated before The Kentucky Innocence project 2007, you may not (KIP), part of the Kentucky Department know Professor of Public Advocacy, offers students the Luke Milligan who opportunity to work with incarcerated is another superstar men and women on their legitimate By Susan Duncan, Interim Dean in this area. claims of innocence. KIP teaches students Luke Milligan Professor Milligan the fundamental components for effective In this issue commemorating the was a criminal defense lawyer at the criminal defense investigative practice. Golden Anniversary of Gideon v. Williams & Connolly firm in The KIP student has the opportunity to Wainwright, the U.S. Supreme Court Washington, D.C., before joining the employ newly-acquired investigative case extending to state court criminal faculty. He teaches criminal law and skills and knowledge offered in the class- defendants the right to legal counsel criminal procedure. His research draws room setting to cases containing under the Sixth and Fourteenth on constitutional theory, political the- exculpatory evidence, possibly leading to Amendments, it seems appropriate to ory, and political science to describe attempts to overturn wrongful convic- showcase Brandeis School of Law’s how judges make rules affecting the tions. Students participating in this Criminal Law curriculum, some of the criminal justice system. His ongoing externship develop essential lawyering professors that teach and write in this projects examine the forces constrain- skills including investigating, counseling, area, and pay tribute to two of our ing the judiciary’s interpretation of the record keeping, and interviewing wit- alumni who recently retired from the Fourth Amendment. nesses and experts. Students work under criminal justice field. Professor Russ the supervision of an attorney with the Weaver also pub- Kentucky Department of Public Criminal Law Course Work lishes extensively Advocacy. The externship requires a two- ew this year, Brandeis first-year in the areas of semester commitment. law students took criminal law in criminal law and As in the past, Brandeis will send a theN fall semester and property in the criminal procedure. team to compete in the Annual Herbert spring. This change was one of a num- He has casebooks J. Wechsler National Criminal Law ber of curricular innovations Russ Weaver and study aids in Moot Court Competition. This year the implemented in 2012-2013. First-year both areas, and he has published a num- 15th annual competition will be held in law students experienced an updated ber of articles. In addition, he organizes Buffalo, New York on March 23. Named curriculum which reduced their credit the Criminal Procedure Discussion after the drafter of the Model Penal hours from 31 to 29 hours by reducing Forum which brings together prominent Code, the Wechsler Competition is the property to a four hour one-semester scholars from around the world to dis- only National Moot Court Competition course. This change allows students to cuss matters of common interest. in the United States to focus on topics in more quickly (or effectively) adjust to Finally, Professors Cedric Powell and substantive criminal law. Problems the challenges of law school and the Sam Marcosson also teach in this area address the constitutionality and inter- demands of the legal profession. Post and remain favorites of our students. pretation of federal and state criminal March 2013 Bench & Bar 45 Bar News_March.qxd 3/14/13 11:55 PM Page 46 KENTUCKY BAR NEWS statutes as well as general issues of fed- Attorney’s Office a leader both in the • raising national awareness of heat- eral and state criminal law. This year, state and the nation. Some of the suc- related football training issues as a Brandeis team members Cassie Kennedy cessful initiatives under their leadership result of the homicide prosecution in and Emily Peeler are being coached by include: Comm. v. Stinson, the football Annie O’Connell and Ted Shouse. We • a Special Prosecutions Unit, in col- coach who was ultimately acquitted; hope they will perform well and join our laboration with the Jefferson • cooperating with the Innocence Arbitration and Negotiation Teams who County Attorney’s Office, which Project to quickly vacate convic- advanced to the Nationals in their targeted serious and violent juve- tions of men who likely were respective competitions. nile offenders dramatically wrongfully convicted; decreasing violent juvenile • and fighting for fair play for con- Brandeis Alums Some of the Best in offenses; victed felons who paid their debt to the Field • an Elder Abuse Unit and Liaison, society, consistently testifying for ll of these opportunities help to the first such felony prosecutorial the restoration of their civil rights make Brandeis graduates some of initiative in Louisville; and for an easier expungement theA best prosecutors and criminal • one of the premier case tracking process. defense attorneys in the state. Two long- and management programs in the Stengel and Rothgerber were com- time members of the criminal bar are country; mitted to helping the staff grow and Brandeis graduates who recently retired • a Detective Unit which took over develop professionally. They elevated from the Jefferson County all extradition duties from the many women to leadership roles in the Commonwealth Attorney’s Office. After police in 1998 at a huge cost sav- office and all assistants were encour- 16 years in their current posts and many ings to taxpayers; and aged to excel. This ultimately led many more years in the field, R. David • a Restitution Coordinator who of the assistants to becoming judges, Stengel L76, Commonwealth’s Attorney eventually processed orders for elected officials, federal prosecutors, for Louisville and Jefferson County, and millions of dollars on behalf of and key players in the Attorney Harry J. Rothgerber L74, the First victims. General’s Office, Auditor’s Office and Assistant Commonwealth’s Attorney This administration was not afraid to other state agencies and departments. retired. They served during the largest take on controversial issues including: Brandeis Law School is very proud increase in the number of criminal • prosecuting more accused lawyers, of both of these graduates. They are two indictments in the history of this juris- police officers, priests and public examples of many fine men and women diction, and countered this crime trend servants than the previous six we have produced who work tirelessly by implementing a significant increase administrations combined; in the criminal justice field. in prosecutors (currently 48) and sup- port staff, funded by both the State and Before You Move... Louisville Metro governments. As the Over 17,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important largest and most active felony prosecu- that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. tor’s office in the Commonwealth, Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which he Stengel’s office handled more than or she may be communicated, as well as a physical address if your mailing address is a 3,900 new indictments that were issued Post Office address. If you move, you must notify the Executive Director of the KBA within by the Jefferson County Grand Jury in 30 days. All roster changes must be in writing and must include your 5-digit KBA member 2012. That is an amazing number when identification number. There are several ways to do this for your convenience. compared to the rest of the state. The initiatives begun by Stengel and VISIT our website at www.kybar.org to make EMAIL the Executive Director via the Rothgerber made the Commonwealth ONLINE changes or to print an Address Membership Department at Change/Update Form [email protected] MAIL the Address Change/Update Form FAX the Address Change/Update Form obtained from our website or other written obtained from our website or other written notification to: notification to: Executive Director/Membership Kentucky Bar Association Department (502) 564-3225 Executive Director 514 W. Main St. * Announcements sent to the Bench & Bar’s Frankfort, KY 40601-1812 Who, What, When & Where column or commu- nication 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. R. David Stengel and Harry J. Rothgerber March 2013 46 Bench & Bar Bar News_March.qxd 3/14/13 11:55 PM Page 47 KENTUCKY BAR NEWS SUMMARY OF MINUTES KYLAP Commission for four-year KBA day at that the Capitol to empha- KBA BOARD OF GOVERNORS terms ending on June 30, 2016. In size to the General Assembly the MEETING addition, approved the appointment of importance of funding matters for the NOVEMBER 16-17, 2012 Catherine Fuller of Paducah from the Court of Justice. Also authorized the 1st Supreme Court District to fill a appointment of Vice President William The Board of Governors met on Friday reminder of a term ending on June 30, E. Johnson of Frankfort to serve as and Saturday, Nov. 16-17, 2012. 2015. chair of the Legislative Outreach Officers and Bar Governors in atten- • Young Lawyers Division Chair Jackie Committee and to appoint a committee dance were, President D. Myers; Sue Wright addressed the following to coordinate the event. President-Elect T. Rouse; Vice President YLD activities and projects: Diversity • Approved to waive registration fees B. Johnson; and Immediate Past Committee, Communications for the judges for the KBA 2013 President M. Keane and Young Lawyers Committee, Membership Committee, Annual Convention in Louisville. Division Chair J. Wright. Bar Law Student Outreach Committee, • Approved to refer the matter of the Governors 1st District – J. Freed, S. Awards, ABA GP Solo Division and request from the National Association Jaggers; Bar Governors 2nd District – Young Lawyers May 2014 Spring of Criminal Defense Lawyers with T. Kerrick, R. Sullivan; 3rd District – R. Conference. regard to a proposed Senate Bill creat- th Hay, G. Wilson; 4 District – D. • Approved the following opinions as ing a procedure to have early review Ballantine; 5th District – A. Britton, W. formal ethics opinions E-434 relating of questionable evidentiary issues to Garmer; 6th District – D. Kramer, S. to a lawyer’s use of social network the KBA Legislative Committee for Smith; and 7th District – M. McGuire, sites to benefit a client and E-435 further review. B. Rowe. Bar Governors absent were: regarding plea agreements including • Executive Director John D. Meyers D. Farnsley. waiver of ineffective assistance of advised that there were five uncon- counsel. tested seats for the Board of In Executive Session, the Board consid- • Attorneys’ Advertising Commission Governors and there were two con- ered six (6) discipline cases, seven (7) Chair David Latherow presented the tested elections as follows: Fourth discipline default cases and one (1) Commission’s annual report. Supreme Court District Amy D. restoration case. Malcolm Bryant of • Clients’ Security Fund Chair Gary Cubbage of Louisville and Ann Owensboro, Brenda Hart of Louisville, Crabtree presented the annual report Oldfather of Louisville and in the Roger Rolfes of Florence and Dr. of the Fund. Sixth Supreme Court District T. Robert Strode, non-lawyer members • Approved the re-appointment of John Lawrence Hicks of Edgewood and J. serving on the Board pursuant to SCR G. Prather, Jr., of Somerset to the Stephen Smith of Ft. Mitchell. Ballots 3.375, participated in the deliberations. Audit Committee for a second three- for these two elections will be mailed year term expiring Dec. 31, 2015. Dec. 15, 2012 and returned by Jan. 15, In Regular Session, the Board of • Approved the appointment of William 2013. Meyers also reported that there Governors conducted the following M. Johnson of Frankfort as a Trustee was no opposition for the Office of business: on the Bar Center Board of Trustees Vice President and President-Elect. for another three-year term expiring Douglass Farnsley of Louisville will • Heard a status report from 2013-2014 on Dec. 31, 2015. take office as Vice President and Budget & Finance Committee, • Approved the appointment of John William E. Johnson of Frankfort will Kentucky Lawyer Assistance Program Grant of Lexington to the Joint Local take office of President-Elect on July (KYLAP) and Rules Committee. Federal Rules Commission for the 1, 2013 for one-year term. • Approved the adoption of KBA U-64 Eastern District of Kentucky for a • Approved the 2013 Holiday Schedule as a formal unauthorized practice of four-year term commencing on Jan. 1, for the Bar Center staff. law opinion regarding “administrative 2013 and expiring on Dec. 31, 2016. hearings.” • Approved the lists of CLE non-com- • President-Elect Thomas Rouse pliant and unpaid dues attorneys for To KBA Members reported that the Board of Governors Show Cause Notices to be sent. Do you have a matter to discuss Summer Meeting would be held on • Approved the appointment of Jennifer with the KBA’s Board of Governors? July 25-28, 2013 at General Butler Barber of Louisville to the Kentucky Board meetings are scheduled on State Park in Carrollton, Ky. Bar Foundation for the Fourth May 17-18, 2013 th • Approved the appointments of 7 Supreme Court District to fill the June 18, 2013 Supreme Court District Bar Governor unexpired term of Jeff McKenzie To schedule a time on the Board’s agenda Bobby Rowe of Prestonsburg, as the expiring on June 30, 2014. at one of these meetings, please contact Board of Governors representative and • Approved the authorization of a KBA John Meyers or Melissa Blackwell Dr. Brian Greenlee of Lexington as Legislative Outreach event, tentatively at (502) 564-3795. the non-lawyer citizen member to the scheduled for Feb. 21, 2013, for a March 2013 Bench & Bar 47 Bar News_March.qxd 3/14/13 11:55 PM Page 48 KENTUCKY BAR NEWS Alexander Hamilton Historical Society Will Hold Annual Symposium at U of L April 19, 2013 May 3, 2013 on April 13 Advanced Curriculum Jessamine County Courthouse McCracken County Courthouse 2nd Floor Courtroom The Alexander Hamilton Historical Society of Kentucky (AHHS) will 301 S. Sixth Street Advanced Curriculum hold its 2013 Symposium on Saturday, Paducah, KY 101 North Main Street April 13. It runs 10:00 a.m.-12:30 p.m. Nicholasville, KY at the University of Louisville McConnell Center’s Chao Auditorium, The Administrative Office of the Courts is pleased to oversee the Legal on the lower level of Ekstrom Library Training for Dependency, Neglect and Abuse Cases (formerly the Guardian ad on Belknap Campus. Litem Training Program). Since 1999, the AOC has been responsible for prepar- This year’s theme is “Federalism: ing attorneys to provide legal representation to dependent, neglected and abused National Power vs. State Power.” children throughout Kentucky. The goal of the program is to produce highly The symposium chair and moderator is qualified guardians ad litem by offering training sessions, providing educational Dr. Charles Ziegler, professor of materials and serving as a comprehensive resource. Political Science, University Scholar and Grawemeyer Awards Director, These programs provide an overview of Kentucky statutory and case law University of Louisville. while also meeting the federal requirements set forth in CAPTA (Child Abuse The symposium features the fol- Prevention and Treatment Act) and ASFA (Adoption and Safe Families Act). lowing presentations: “The Founders and Federalism,” by Dr. Aaron CLE Credits. The advanced program offers 5.75 credit hours of continuing Hoffman, assistant professor of legal education, which includes 1 credit hour of ethics. Political Science, Bellarmine University; “The Constitution and CEU Credits. The AOC has applied for continuing education units from the Kentucky Board of Social Work. Federalism,” by Mark Webster, attor- ney at law; “The Supreme Court and There is a $25.00 registration fee for attorneys seeking CLE Credits. Federalism,” by Jane Lollis, attorney at law; and “The Politics of Fiscal FOR MORE INFORMATION Federalism,” by Dr. Jasmine Farrier, Attn: Legal Training assistant professor of Political Department of Family and Juvenile Services Science, University of Louisville. Administrative Office of the Courts The symposium is free and open to 100 Millcreek Park the public. A question and answer Frankfort, Ky. 40601 Phone 800-928-2350, x50510 • Fax 502-573-1412 session follows the presentations. [email protected] Free parking is available on campus; paid parking is available in the Speed Museum parking garage and other areas. KYLAP TO PARTNER WITH LMICK FOR ETHICS PROGRAM For additional information, contact The Kentucky Lawyers Assistance Program (KYLAP) is proud to announce a Rick Kincaid at [email protected] or partnership with Lawyers Mutual Insurance Company of Kentucky (LMICK) to call (502) 897-0585. Regular AHHS provide 3.5 hours of free ethics (pending CLE approval) at two locations this meetings are held on the third spring. A working lunch will be provided. The programs will be from 10:00 a.m. Saturday of each month at 10:30 a.m. to 2:00 p.m. The scheduled programs are: at the St. Matthews-Eline Library, Paducah: Thursday, May 30, at The Carson Center, 100 Kentucky Avenue; 3940 Grandview Avenue, in St. Pikeville: Friday, May 31, at the Eastern Kentucky Exposition Center, 126 Matthews City Hall. They are always Main Street. free and open to the public. Lynn Please RSVP to Nancy Meyers at [email protected] or call 502-568-6100 Olympia serves as president and can with your name, firm, event date, and your choice of vegetarian or regular boxed be reached at [email protected] lunch. or (502) 709-5070. March 2013 48 Bench & Bar Bar News_March.qxd 3/14/13 11:55 PM Page 49 KENTUCKY BAR NEWS Volunteers needed to assist children in foster care in 35 Kentucky counties Citizen Foster Care Review Boards review cases, make recommendations on behalf of children itizen Foster Care Review Boards The Kentucky General Assembly cre- CFCRB headline when it appears in the throughout Kentucky are seeking ated the Citizen Foster Care Review photo box at the top of the page. To vol- volunteersC to make a difference in the Board, or CFCRB, in 1982 as a way to unteer or get more information, contact lives of local children in foster care. decrease the time children spend in fos- the Department of Family and Juvenile Volunteers are needed to review cases ter care. CFCRB volunteers review Services at the Administrative Office of of children placed in foster care Cabinet for Health and Family Services the Courts in Frankfort at 800-928-2350 because of dependency, neglect and files on children placed in out-of-home or [email protected]. abuse to ensure these children are care and work with the cabinet and placed in safe, permanent homes as courts on behalf of the state’s foster chil- Citizen Foster Care Review Board quickly as possible. Volunteers are not dren. The volunteer reviewers help Approximately 800 volunteers across required to reside in the county where a ensure that children receive the neces- the state serve as members of the AOC’s board meets. sary services while in foster care and are Kentucky Citizen Foster Care Review The counties most in need of volun- ultimately placed in permanent homes. Board. The boards operate within the teers are Anderson, Bath, Bell, Bracken, All volunteers must complete a six- AOC’s Division of Dependent Bullitt, Calloway, Campbell, Clay, hour initial training session and consent Children’s Services, a division of the Elliott, Estill, Fayette, Franklin, to a criminal record and Central Registry Department of Family and Juvenile Garrard, Hardin, Henry, Jefferson, check. A recommendation is then made Services. As the operations arm for the Johnson, Kenton, Knox, Lee, Lincoln, to the chief judge of the District Court or state court system, the AOC supports Mason, McCreary, Morgan, Nelson, Family Court for appointment. the activities of nearly 3,300 court sys- Oldham, Owen, Owsley, Pike, Powell, To view meeting schedules of the tem employees and 403 elected justices, Shelby, Spencer, Trimble, Warren and boards in need of volunteers, visit judges and circuit court clerks and exe- Woodford counties. www.courts.ky.net and click on the cutes the Judicial Branch budget. In Memoriam John C. Anggelis Nathan S. Lord Don T. Ratcliffe Lexington KY Louisville KY Louisville KY 1/9/2013 1/1/2013 12/4/2012 Andrea Nicole Bostrom John Joseph McCarthy Edmond Flynn Severs II Versailles KY Louisville KY Lexington KY 12/22/2012 9/9/2011 3/12/2012 John T. Fowler III Escum Lionel Moore Jr. Robert E. Vick Louisville KY Lexington KY Greenville KY 12/18/2012 11/26/2012 11/15/2012 Mark Anthony Gabis Joseph C. O’Bryan Franklin Everett Warren Owensboro KY Louisville KY Louisville KY 11/12/2012 12/14/2012 3/7/2012 Jefferson V. Layson Jr. Charles E. Palmer Jr. Lee Ann Webb Paris KY Lexington KY Louisville KY 12/24/2012 1/1/2013 1/23/2013 March 2013 Bench & Bar 49 Bar News_March.qxd 3/13/13 10:53 PM Page 50 KENTUCKY BAR FOUNDATION PATRONS Commitment to Strengthening Our Justice System and the Legal Profession Which Upholds its Standards Sam Aguiar Louisville Irv Maze Louisville David A. Black Louisville Eugene L. Mosley Louisville Gerry L. Calvert Lexington Joseph B. Murphy Lexington Dorothy J. Chambers Louisville James I. Murray Lexington Wynter Collins Louisville Oeltgen &D’Ambruoso, PLLC Lexington Scott A. Crosbie Lexington Dan L. Owens Louisville Michael Davidson Lexington W. R. Patterson, Jr. Louisville Thomas A. Donan Bardstown Timothy Philpot Lexington Susan Duncan Louisville Mary Lisa Prendergast Owensboro Cecil F. Dunn Lexington R. Craig Reinhardt Lexington Kelly Mark Easton Elizabethtown Daniel J. Risch Louisville Samantha Evans Hopkinsville Kendall Robinson Booneville Fred Faulkner Campbellsville Mark A. Robinson Louisville Edward Faye Bowling Green Thomas L. Rouse Erlanger W. Roger Fry Cincinnati Steven C. Schletker Covington Spencer E. Harper, Jr. Louisville James S. Secrest, Sr. Scottsville Samuel G. Hayward Louisville Erwin A. Sherman Louisville Buckner Hinkle, Jr. Lexington Jennifer S. Smart Lexington Zachary A. Horn Inez Mark E. Smith Louisville Craig Housman Paducah John W. Stevenson Owensboro Sheldon N. Isaacs Louisville John Frith Stewart Louisville Steven C. Jackson Paducah Gerald R. Toner Louisville Hobart C. Johnson Pikeville Gary M. Weiss Louisville Martin W. Johnson Benton Lee T. White Hopkinsville Kentucky Bank Paris Scott C. Wilhoit Louisville Robert A. Kohn Louisville Helene Gordon Williams Louisville Nathan T. Kolb Bowling Green J. H. Wimsatt Louisville Robert E. Maclin III Lexington Thomas B. Wine Louisville Thomas C. Marks Lexington The Zoppoth Law Firm Louisville Kip C. Mathis Benton ------Your contribution makes it possible for the Kentucky Bar Foundation to further the public’s understanding of the judicial system and the legal profession through programs and philanthropic partnerships that help those in need. I want to be a Patron of the Kentucky Bar Foundation! Please accept my pledge to contribute $100 annually to the Kentucky Bar Foundation for the next five years, which creates a total commitment of $500. My first installment of $100 is enclosed. Please accept my pledge to contribute $150 annually to the Kentucky Bar Foundation for the next five years, which creates a total commitment of $750. My first installment of $150 is enclosed. Please accept my pledge to contribute $200 annually to the Kentucky Bar Foundation for the next five years, which creates a total commitment of $1,000. My first installment of $200 is enclosed. Contributions to the Kentucky Bar Foundation are tax-deductible to the extent allowed by law. Print Name Address City State Zip Phone No. Fax No. E-mail Signature The Kentucky Bar Foundation, Inc. 514 West Main Street Frankfort, KY 40601-1812 January 2013 50 Bench & Bar CLE_March.qxd 3/13/13 8:05 PM Page 51 Looking for Upcoming KBA Accredited CLE Events? Look no further... Check out www.kybar.org/580 This easy to use search engine contains up to date information on CLE events that have been accredited by the Kentucky Bar Association Continuing Legal Education Commission. Users can search by program date, name or sponsor for information about future and past events. Program listings include sponsor contact information, approved CLE and ethics credits, and KBA activity codes for lling out the certicate of attendance (Form #3). Programs are approved and added in the order in which they are received. It may take up to two weeks for processing of accreditation applications. If an upcoming or past event is not listed in the database, check with the program sponsor regarding the status of the accreditation application. &RQWLQXLQJ /HJDO (GXFDWLRQ &RPPLVVLRQ 'HERUDK % 6LPRQ 0DWWKHZ 3 &RRN -XOLH 5REHUWV *LOOXP )LUVW 6XSUHPH &RXUW 'LVWULFW 6HFRQG 6XSUHPH &RXUW 'LVWULFW 7KLUG 6XSUHPH &RXUW 'LVWULFW -DQHW -DNXERZLF] &KDLU -DQLV ( &ODUN 6KDQH & 6LGHERWWRP )RXUWK 6XSUHPH &RXUW 'LVWULFW )LIWK 6XSUHPH &RXUW 'LVWULFW 6L[WK 6XSUHPH &RXUW 'LVWULFW :LOOLDP 0LWFKHOO +DOO -U 6HYHQWK 6XSUHPH &RXUW 'LVWULFW 0DU\ ( &XWWHU 'LUHFWRU IRU &/( March 2013 Bench & Bar 51 CLE_March.qxd 3/13/13 8:05 PM Page 52 We would like to thank those individuals and organizations whose contribution of time, expertise and funding helped make the February 2013 New Lawyer Program a great success. Moderators, Speakers and Contributing Authors Judge Julia H. Adams P. Branden Gross Jessica L. Newman Jerey P. Alford Asa P. Gullett III Michael E. Nitardy Roula Allouch Jane C. Higgins Kristen K. Orr Ruth H. Baxter Stacey A. Hoehle Neva-Marie Polley John N. Billings Todd S. Horstmeyer Stephanie R. Renner John T. Brady Yvette Hourigan Jonathan S. Ricketts Anita M. Britton Gene Lynn Humphreys Jesse L. Robbins Kelli E. Brown Stephen J. Isaacs Joe C. Savage Helen G. Bukulmez Laura E. Kight Craig M. Schneider John F. Burnette David F. Latherow Tasha K. Scott Judge Sara W. Combs James R. Lesousky Susan C. Sears Amy D. Cubbage Don H. Major Richard A. Setterberg Mary E. Cutter Joshua J. Markham Barry N. Sullivan Kirsten R. Daniel Mark S. Medlin Palmer G. Vance II Chrissy M. Dunn John D. Meyers Jay R. Vaughn John M. Dunn Christie A. Moore Michael Odell Walker Linda S. Ewald Lisa H. Morgan Judge Jerey M. Walson Professor William H. Fortune Kevin J. Moser P. Kimberly Watson Carl N. Frazier Daniel P. Murphy Louis P. Winner Allison L. Grogan W. Douglas Myers Jacqueline S. Wright Sponsors and Exhibitors Name Badge Lanyard Sponsor Exhibitor • YLD Reception Sponsor Program Sponsor Exhibitor Exhibitor • Program Flash Exhibitor • YLD Reception Sponsor Drive Sponsor Exhibitor Program Pen Sponsor eton B oo dl ne en P C a n m e p w b e O l l n C o t a n r NKBANKBA r e o K l l t G n a a r l l G a t i n Exhibitor Exhibitor Exhibitor March 2013 52 Bench & Bar CLE_March.qxd 3/13/13 8:05 PM Page 53 0DUN October 3-4 - Owensboro RiverPark Center October 9-10 - London London Community Center Advancing the Profession Through Education October 24-25 - Louisville KY International Convention Center 0DUN \RXU FDOHQGDUV QRZ 7KH ILQDO GDWHV DQG October 30-31 - Gilbertsville ORFDWLRQV IRU WKH .%$·V .HQWXFN\ /DZ 8SGDWH KY Dam Village State Resort Park ./8 DUHFRQILUPHG 7KH./8SURJUDPVHULHVLVDQ H[FHSWLRQDOEHQHILWRI.%$PHPEHUVKLSDQG .HQWXFN\ November 6-7 - Bowling Green Holiday Inn & Sloan Convention Center LV WKH RQO\ PDQGDWRU\ &/( VWDWH WKDW SURYLGHV LWV PHPEHUVDZD\RIPHHWLQJWKHDQQXDO&/(UHTXLUHPHQW November 21-22 - Prestonsburg DWQRDGGLWLRQDOFRVW 5HJLVWUDWLRQZLOOEHDYDLODEOHLQ Jenny Wiley State Resort Park ODWH0D\ ,QWKHPHDQWLPHYLVLWZZZN\EDURUJ December 5-6 - Covington IRUPRUHLQIRUPDWLRQ Northern Kentucky Convention Center “Within twelve (12) months following the date of admission as set forth on the certicate of admission, each person admitted to membership to the Kentucky Bar Association shall complete the New Lawyer Program.” 6&5 1HZ /DZ\HU 3URJUDP Kentucky Bar Association 2013 New Lawyer Program in conjunction with: June 19-20, 2013 Galt House Hotel Louisville, KY Kentucky Bar Association Annual Convention Visit www.kybar.org/195 for more information March 2013 Bench & Bar 53 Congratulations 2012 CLE Award Recipients Congratulations to the following members who have received the 2012 CLE Award by obtaining a minimum of 62.5 CLE credit hours within a three-year period, in accordance with SCR 3.680. The CLE Commission applauds these members for their efforts to improve the legal profession through continuing legal education. Sharif Ahmed Abdrabbo Michael V. Brodarick Jessica Leigh Cole John M. Famularo Michael Lee Hawkins Damaris S. Abeles Jamie Scott Brodsky Timothy Ray Coleman Katrina Z. Farley Michael deLeon Hawthorne Stuart L. Adams, Jr. Bonnie M. Brown Christopher Colson Michael Joseph Farrell Jeremy Andrew Hayden Robert Cameron Adams G. Denise Brown Ralph Combs Bruce A. Favret Paul Cleon Hayes Amelia Martin Adams Shelley Lee Brown Kimberly H. Compton Angela Susanne Fetcher Whitney Lauren Hayse William H. Adams II Sean Edward Brown Eric Niles Conley Jeffrey W. Fichner Samuel G. Hayward Russell Whitt Adkins Rachel Lynn Brown Walter A. Connolly III Lynn Katrin Fieldhouse Jonathan R. Heck Londa Jeanine Adkins Elizabeth K. Broyles Kenneth Luke Connor Timothy Firkins Gregg Garth Heckley Bryce Aaron Adkins Elizabeth A. Bruce Vance Wayne Cook Paul Alan Fiser Timothy Seth Hendrix Ryan James Albrecht Katherine R. Bruenderman Richard E. Cooper Katherine Jane Fitzpatrick Joseph Todd Henning Martha Lewis Alexander Renda Jill Bruner Pamela M. Corbin Vanita Sharma Fleckinger Alex P. Herrington, Jr. Phillip Altimari David Warren Bufford Suzanne Doreen Cordery Bradley Allen Fletcher Sharon Kay Hilborn Michael Wayne Alvey Michael Joseph Bufkin Erin Michelle Corken Phyllis E. Florman Mary Elizabeth Hils Bethany Elaine Ammons Helen Gulgun Bukulmez Brian C. Corneilson Brent William Flowers Mary Gabrielle Hils John E. Anderson Linda Dixon Bullock Paul Brian Couch Charles L. Paul Flynn Buckner Hinkle, Jr. Jeanne Deborah Anderson Charla McNally Burchett Clare Feler Cox James Gordon Fogle Samuel D. Hinkle IV Kelly Renae Anderson Kathryn Burke Paul Wilburn Cox, Jr. Shawn Fogle Willis W. Hobson V Christopher J. Arlinghaus Robert Anthony Burke Samuel Joseph Cox Christine Jane Foster Amber Nisbet Hodgdon Tracy Sullivan Arnold David William Burleigh Tera Gertrude Cozart Jill Maria Fraley Charles F. Hoffman Michael F. Arnold Casey Patrick Burns Rhonda R. Crawford Larry B. Franklin Casey F. Holland Imran Waqas Aslam Erin Elizabeth Burns Douglas F. Crickmer III Steven Joseph Franzen Suzanne Audrey Hopf Tonya Jenkins Austin Ralph Charles Buss William P. Croley Nicole K. Freel Baldridge Ashley Owens Hopkins Elizabeth Bancroft Gerry L. Calvert II Whitney Asher Crowe Robert Glenn Friedman Emily Manning Hord Jennifer Yue Barber Stephanie Lynn Calvert Russell L. Crusott Melissa Capito Fuchs Michael Keith Horn Stephen Barnes Thomas Lynch Canary, Jr. Adam Clay Cullman Jerrod B. Fussnecker Justin W. Hoskins Abigail Barnes Sarah Schmitt Carey James Patrick Dady Christopher Gadansky Dana Clemons Hulbert James W. Barnett William Daniel Carman Debra H. Dawahare Allen K. Gailor Daniel Aaron Hunt Donald S. Battcher Michael Gerard Carr Richard Frank Dawahare Jodie Drees Ganote William Jay Hunter, Jr. Madeleine T. Baugh Raymond Eric Carr Alexander P. DeGrand Larry D. Garmon Cara Rose Hurak Courtney Tigue Baxter Christopher D. Carrier Robert G. DeFusco Terry Lane Geoghegan Michael R. Hurter Brian Keith Bayes Thomas E. Carroll Karen D.B. Dean William James George Ray Shane Ibarra Nathan Thomas Beard Nicholas A. Carter Kurt Richard Denton Roya Ahur Ghazi Clifton Miller Iler Jennifer S. Begley Christopher R. Carville Robert Sean Deskins D. Randall Gibson Mark Lee Ishmael Jon Blakely Beliles Keith M. Carwell Robert W. Dibert Mary Elizabeth Going Stacy Hullett Ivey Lindsey Gary Bell Scott C. Casey Denise A. Dickerson Maria T. Goldcamp-Hodges Sarah Mindwell Jackson John R. Benz Christopher D. Cathey James L. Dickinson Nathan Wayne Goodrich Christopher L. Jackson Stephen D. Berger Rocco J. Celebrezze Temple Dickinson Laura Kelly R. Goodridge James Brian Jackson Mildred D. Betty Frank David Chaiken Scott William Dolson Thomas Graham Goodwin Steven R. Jaeger Janet Louise Blachowski Laura Lee Chastain Sheila Mary Donovan Felix John Gora Charles E. Jennings Heather Lynn W. Blackburn Brian William Chellgren Deaidra Lynn Douglas Virginia Baker Gorley Thomas Martin Jennings Paul Matthew Blanton Ashley Lauren Chilton Jared Lee Downs Erritt Hill Griggs Keen W. Johnson Karen Greene Blondell Matthew J. Choate Timothy Wayne Dunn, Jr. David P. Grise Benjamin Clay Johnson Cecilia D. Blye Karen Gail Chrisman Susan Speare Durant Jeannette D. Gute Joseph Lee Johnson Cathy L. Bond Ashlea Elaine Christiansen Walter Blaine Early III Anna Roberta Gwinn Barbara Lee Johnson Deidre M. Bowen Lee C.Y. Clagett Cher Reese Eaves Timothy Joseph Hagerty David Lewis Jones III Kyle Dane Bowles, Jr. Galen L. Clark Eric G. Eckes Janean E. Hall Rebecca Anne Jones Matthew W.D. Bowman Lauren Sander Clark Scott Taylor Ecton Robert Luke Hall Lou Hedrick Jones Tiffany J. Bowman Bradley Dale Clark Terry Dennis Edwards Robert L. Hallenberg Lucas M. Joyner Richard Mason Boydston Susan Stokley Clary Jean Clair Edwards Mark Edward Hammond Edmund P. Karem Douglas Allen Bozell Thomas Peyton Claycomb Robert Herman Eichenberger Amy Irene Hannah Margaret E. Keane Peter J.W. Brackney Richard Simon Cleary Richard David Elder Jennifer M. Hansen Whitney C. Kegley Thomas R. Bradley Joseph A. Cleves, Jr. Thomas Paul Erven Richard Kelly Harris Paul Jason Kelley Natalie Rae Bradley David Dwight Cobb Angela C. Evans Kerry Brent Harvey Shannon M. Kelly Lloyd D. Bright James Timothy Cocanougher Rita L. Fadell W. Patrick Hauser Andrea M. Kendall Bruce Alan Brightwell Ross Daniel Cohen Rheanne Dodson Falkner Linda H. Havel Lawrence Craig Kendrick Thomas C. Brite Rachel G. Cohen Bernard Martin Faller Michael Wesley Hawkins Eric C. Kennedy 2012 CLE Award Recipients (cont.) Richard Graham Kenniston Raymond Dycus McGee Brittany L. Oliver Adam Knisley Sanders Melissa L. Tidwell Joshua Ryan Kidd Stephanie L. McGehee-Shacklette Dionna H. Orr Joseph Donald Satterley Lucius Eli Tillman Daran Paul Kiefer Jerry Dale McGraw Duane Francis Osborne Bridget A. Saunders William Tracy John Kevin King James Peter McHugh Morgan Todd Osterloh Randall L. Saunders Patricia J. Trombetta Christopher J. Kippley Michael Scott McIntire Peter Ostermiller Alexander M. Say Karl Nelson Truman Michael Edward Kleinert Arch Cox McKay III Clayton Otis Oswald Thomas Edward Scarr Joan Mary Tumblison Angela Wynn Konrad Stephanie L. McKeehan Alec J. Ott Rebecca R. Schafer Nathaniel M. Uhl David V. Kramer Adrien Spencer McKiness James Landon Overfield Brian Lee Schuette Melissa S. Van Wert Leilani K.M. Krashin John David McKinnis William Burr Owsley Daniel James Schulman Renee Sara VandenWallBake Donna Sharon Kremer Michael Owen McKown Reba Ann Page Jessica Karen Schulte John Jay Vandertoll Steven Wilson Lamb Brendan Joseph McLeod Todd Smith Page Paul Edward Schwarz Patrick R. Veith Debra Hembree Lambert Kipley J. McNally Jerry Alan Patton Stephen George Schweller Jane Adams Venters Kenneth W. Lampe Chadwick Aaron McTighe James Nicholas Payne Jann Seidenfaden Christina L. Vessels Steven Paul Langdon Joshua A.K. McWilliams Sean Patrick Perdue David Lewis Shadburne C. Lloyd Vest II Samuel Kenton Lanham Mark Stephen Medlin Amanda Beth Perkins Raleigh P. Shepherd Keith W. Virgin Katherine M. Lasher Nora F. Meldrum Peter Perlman Ashlea Lashea Shepherd Robert Matthew Vital Leigh Gross Latherow Anna Deskins Melvin Marylee U. Perry Benjamin T. Shipp Robert J. Vonckx Thomas Wade Lavender II Elizabeth U. Mendel Fred E. Peters Lisa Marie Shishmanian Daniel Lee Waddell Lukas Randolph Lawless Henry Edward Menninger, Jr. Virginia Tate Phelps Walter Alan Sholar Michael Odell Walker Justin Lee Lawrence Whitney M. Meredith Richard Donald Piliponis Melvin Bradley Shuffett, Jr. Eileen Walsh Norman W. Lawson, Jr. Stephen Chad Meredith John Byron Pinney Corbet Michael Shull Patrick J. Walsh Lynn Vo Lawyer Margot K.K. Merrill Christopher Pittman Leslie N. Simmons Thomas Morgan Ward, Jr. John R. Leathers Megan E. Mersch David Lawrence Place Rebecca Adams Simpson Daniel Isaac Waxman Loretta G. Lebar Stephen K. Mershon Shari Polur Floyd Anthony Skeans Stephen M. Wayne Audrey Bertina Lee Mark Hammonds Metcalf Tara Brittany Pope Michael R. Slaughter Robert Charles Webb Paul Reid Lemasters John Henry Metz Pamela W. Popp Eric Steven Smith Harry Patrick Weber Michael C. Lemke Barry Michael Miller John V. Porter, Jr. Linda Andrea Smith Mark Clark Webster Mel Leonhart Joseph Bernard Miller Bobby Keith Porter James Stephen Smith Karen Michelle Weimar Matthew Bryant Leveridge Jonathan D. Miller Bonnie K. Potter Darby Lane Smith Rebecca Anne Weis Marc H. Levy Jennifer J. Milligan Kimberly S.H. Price Donald Bryant Smith Gregory Brian Wells Sarah Duff Levy James Carl Mills William C. Prow Tracey C. Smith James Robert Wells Natalie Lynn Lewellen Stephen Dale Milner, Jr. Mary-Jo Pullen Nathaniel G. Smith Diana Nicole Wells Darryl Lamont Lewis Lisa Miracle Steven Thomas Pulliam Zachary S. Smith Kristin Marie Werner David Tyree Lewis Theresa Marie Mohan J.D. Raine, Jr. Jason Philip Snyder Diana Jean Werkman Richard Lee Lewis II Donald P. Moloney II Megan Dellane Randolph Steven Vincent Sorg Brian Scott West James Thomas B. Lewis Edward C. Monahan Erin Renee Ratliff Gregory Sova Natalie Ann West Colleen P. Lewis Susan C. Montalvo-Gesser Thomas Winston Rau Marcia Levey Sparks Richard Westin Natalie Rae Lile Carla Hale Montgomery Robert Thomas Razzano Tamela R.J. Spurlin Shanda Lea West-Stiles Hollie B. Lindsey Catherine Ann Monzingo Stuart W. Read Michael Boyd Stacy Mark Wettle James M. Lloyd Roy Leamon Moore Lesly Ann Reisenfeld-Davis Dawn Ellis Stacy Paul Lewellin Whalen Zenaida Renee Lockard Christopher D. Moore Kevin Joseph Renfro Steven Paul Stadler Barbara Maines Whaley Gary S. Logsdon Jennifer Ann Moore Philip J. Reverman, Jr. Phil A. Stalnaker Aaron Gregory Whaley Lattie Buck Lominac III Marian E. Moore Bryce Carrigan Rhoades Amy Robinson Staples Thomas Edward Wheeler II Benjamin Adam Long Myron Russell Morales Emily Holt Rhorer Andrew Xavier Stawar Emily Ann White Samuel Houston Lowe Daniel Luke Morgan James Sutton Rhorer Erica Stacy Stegman Jenny Sue White Charles Ernest Lowther Keith Richard Morgan Michael A. Richardson Gary Sutton Stewart Pierce Butler Whites Paul Liston Madden, Jr. Sue Ellen Morris Eric Wade Richardson David Laurence Stewart Daniel E. Whitley William Virgil Maddox II Daniel George Mudd Andy Gene Rickman Maria C. Stewart Kimber Leigh Whyte Linda Barth Magee Linda Strite Murnane Gayle B. Robbins Garnie Cliff Stidham Serah E. Wiedenhoefer Joel Daniel Mandelman Michael R. Murphy Lora Lee Robey Jesse Stockton, Jr. Elizabeth A. Wieneke Jeffrey C. Mando Richard V. Murphy Phyllis L. Robinson Sheila Clemons Stoffel Kyle Robert Wiete T. Patterson Maney Anna Kristy Murray Darrell C. Robinson Thomas K. Stone Clay F. Wilkey Samuel Manly Charles S. Musson Patrick C. Roemer Heather E. Strotman Emily R. Wilkey Michael Allen Mann Michael Linden Myers Barton Taylor Rogers Lauran Meg Sturm Charles Evans Wilkinson Thom A. Marshall Joshua Wayne Nacey Charles T. Rogers, Jr. Edward Tyler Suttle Jane Rice Williams Timothy W. Martin Wesley Matthew Nakajima Lelah Ann Rogers Ann Price Swain Clint Grainger Willis Amie Jo Martinez Lisa K. Nally-Martin Laura Milam Ross Laurel K. Swilley Chappell R. Wilson Roger Lee Massengale Mark Wayne Napier Joseph Earl Ross Paul Gregory Sysol Kenneth Ray Witt Will Jared Matthews Patrick F. Nash Harry J. Rothgerber, Jr. Mary Stewart Tansey Karen E. Woodall Patrick W. Mattingly John Steven Nelson John Jason Rothrock Stacy Hege Tapke Jeff A. Woods Robert Denton Mattingly Jennifer S. Nelson Jesse Ward Rowe II Rhonda Evon Taylor Rebecca Keene Wooldridge Molly Mattingly Nicholas John Neumann Phillip Grant Royalty Donald Wayne Taylor, Jr. Audrey Nicole Woosnam Steven Travis Mayo James Henry Newberry, Jr. Michelle Grant Rudovich Marsha Taylor Ronald Brian Wright Robert Love McClelland Cheryl L. Newberry Ryan John Ruehle Michele Thielhorn Jacqueline S. Wright Sherry Susanne McCollough Elizabeth E. Nicholas Brian Thomas Ruff Linda Bernice Thomas David L. Yewell Allen Keith McCormick Bradford Alan Nilsson Katherine Gail Russell Tad Thomas Brent Yonts Jared Curtis McCubbin Michael Eugene Nitardy Elizabeth G. Russell Paulette M. Thomas George Joseph Zamary Jerry Lee McCullum John Edward Norman Shawn Robert Ryan Jennifer Thomas Sara Beverly Zeurcher Tyson Stewart McDonald Andrew Eric Nystrom Abraham Julian Saad John Andrew Thomason Robert C. Ziegler Edward Brandon McDonald David Vance Oakes Jeffery Lynn Sallee Helen E.L. Thompson Tina R. McFarland Lauren Adams Ogden Courtney Ross Samford Edward Michael Thompson John T. McGarvey Ryan Nicholas Olberding Jenny Lynn Sanders Krsna Isvara Tibbs Congratulations 2012 CLE Renewal Award Recipients Congratulations to the following members who have received the CLE award by obtaining a minimum of 62.5 CLE credit hours within a three-year period, in accordance with SCR 3.680, and renewing the award by obtaining at least 20 hours in subsequent years.The CLE Commission applauds these members for their efforts to improve the legal profession through continuing legal education. John R. Adams Elaine Marie Bukowski Laura Day DelCotto Glenda H. George Angela Adams Hornbeck Dennis James Burke Emily Dennis Sheila D.B. Gerkin Gary William Adkins Mary Pyle Burns Richard J. Deye Gordon T. Germain Daniel T. Albers William R. Buzo Peter G. Diakov Richard A. Getty Barbara Mary Albert Timothy James Byland Monica Louise Dias Stephen Graves Geurin Kenneth John Allen Stephanie Lynn Caldwell Rebecca B. Diloreto Lee Jay Gilbert Sharon Kay Allen Kelley Landry Calk Ervin Dimeny Sheldon G. Gilman Brian Craig Allen Catherine G. Calvert Anna Leisa Dominick David Mark Godfrey Lori Janelle Alvey Rutheford B. Campbell, Jr. Daniel J. Dougherty, Jr. Robert Louis Goodin, Jr. Stephen G. Amato Lynda Campbell LeeAnna Dowan-Hardy Charles A. Goodman III John W. Ames John Ledyard Campbell Howard Neal Downing William T. Gorton III E. Kenly Ames Alton L. Cannon Jacqueline S. Duncan Linda Ann Gosnell Kirtley B. Amos Angela M. Capps Pamela McGill Duncan Daniel T. Goyette Michael C. Arnold Carolyn Carroway Clifford R. Duvall Jonathan R. Grate Timothy G. Arnold Benjamin W. Carter Robert W. Dyche III David C. Graves III Vickie Masden Arrowood John Keith Cartwright Jane Winkler Dyche Ronald Lee Green Glen S. Bagby Mary Suzanne Cassidy Martha Marie Eastman Karen J. Greenwell Thor H. Bahrman Kyle Anne Citrynell Stefanie Joan Ebbens Kingsley William D. Gregory Michael Burris Baker Carolyn Clark Cox Francis H. Edelen, Jr. Gregory James Griffith Richard Alan Bales James Kelly Clarke Garry L. Edmondson John L. Grigsby Kenton Lee Ball Michael M. Clarke Glenda Mae Edwards Donald Edelen Groot Stephen Gerald Barker Tara Jean Clayton Timothy Joseph Eifler Jerry Wayne Guffey Stephen L. Barker Charles Edward Clem Angela Renee Elder Asa P. Gullett III Rodney David Barnes Wynter Reneaux Collins Charles E. English, Jr. Bruce P. Hackett David Michael Barron James Albert Comodeca John Francis Estill Sheldon Lee Haden Charles Brooks Bates Gregory S. Condra Ross Thomas Ewing Morgan Carol Hall Anthony G. Belak Allison Inez Connelly Catherine I. Falconer Ryan M. Halloran Katherine A. Bell Angela E. Cordery Michael J. Ferraraccio Eric Allen Hamilton Michael J. Bender James L. Cox Thomas L. Ferreri Candice Elaine Hammons Alonzo F. Berry, Jr. David Brent Cox Sarah E. Fightmaster Ashley Renee Hampton Turney Powers Berry Joshua Bryan Crabtree Thomas William Fitzgerald Michael R. Hance Simon-Brooks Berry Joseph N. Crenshaw Kenneth Bruce Flacks Traci Snyder Hancock Craig Patrick Bingham Roger L. Crittenden Patrick Clay Flannery Harold Eugene Harmon Tacasha Eve Bingham Boyce Andrew Crocker Robert Louis Fleck Norman E. Harned David L. Bohannon Charles J. Cronan IV Jason Shea Fleming Jason Apollo Hart Robert K. Bond Sarah G. Grider Cronan Michael Flowers Patrick Alan Hartman John T. Bondurant Jack R. Cunningham Melanie Ann Foote Martin Lando Hatfield Nute Alan Bonner Aaron John Currin Paul Kevin Ford Walter Aden Hawkins Paul Richard Boughman Terry Martin Cushing William H. Fortune Richard Wayne Hay Roger Newman Braden Mary Elizabeth Cutter George Edward Fowler, Jr. Jennie Yon Haymond C. Craig Bradley, Jr. Laura Anne D’Angelo William G. Francis Michael Roy Head Jill Roland Brady Tracey Leo Darbro Cathy Weller Franck Mary J. Healy Frank Anthony Brancato Michael Davidson Brad Alan Fraser Stephen Keller Heard Amanda Jane Branham Benjamin K. Davis James H. Frazier III F. Richard Heath Richard Martin Breen Douglas Lee Davis Danita Joleen Frederick Mark Evan Heath Matthew W. Breetz Edmonde Peter DeGregorio Catherine S.N. Fuller Sheryl Egli Heeter Mark Russell Brengelman Matthew Beatty DeMarcus Brian Matthew Furby Stephanie L. Hembroff David Joseph Bross Jeffery Bryant Dean Michael Alan Galasso Jennifer Lee Hendricks Kelli E. Brown John Michael Debbeler Richard J. Gangwish II Sarah E. Henry Kami Claudette Brumley Larry Colby Deener Michael J. Gartland Hiram J. Herbert, Jr. 2012 CLE Renewal Award Recipients (cont.) Aaron Neal Herrington Ronald Scott Masterson Rebecca Kuster Ragland Carey Kathleen Steffen Shawn Marie Herron Glenn Stephen McClister Randall Allen Ratliff, Jr. Michael James Stegman David Jack Herzig Earl Martin McGuire Gregory Adam Redden E. Douglas Stephan Brian Leslie Hewlett Bernard L. McKay Paul E. Reilender, Jr. Andrew Martin Stephens Ronald Elmore Hines John Gary McNeill Robert Edward Rich Robert Ernest Stephens, Jr. John Edward Hinkel, Jr. Karen J.T. Meier Thomas Dwight Richards Kenneth S. Stepp Lisa English Hinkle Louis F. Mercado Charles E. Ricketts, Jr. Michael Lee Stevens Malicia T. Hitch Keith D. Meyer Roger D. Riggs Melissa Ann Stevens Maria Greta Hoffman John Downing Meyers Casey Walter Riggs Jason Vincent Stitt Charles F. Hollis III Carl Theodore Miller Jesse Leo Robbins Robert Johnson Stokes, Jr. Katherine M.D. Holm Barry David Moore Jeffery Allen Roberts Eric S. Stovall Elaina Lell Holmes Jesse T. Mountjoy Raymond R. Roelandt Randall Scott Strause Leigh A.P. Honaker Amanda J. Mullins Erica Michelle Roland Melanie Lee Straw-Boone Vicky Chandler Horn Melinda Ann Murphy Joseph L. Rosenbaum Robert Kenneth Strong Bonnie Jo Hoskins Brittany Rae Musleve Cassidy R. Rosenthal Michael P. Sullivan Craig W. Housman E. Bruce Neikirk Gerald Dale Ross Sarah B.E. Tankersley Douglas C. Howard Craig Fletcher Newbern, Jr. Thomas L. Rouse Gregory L. Taylor Gretchen Marie Hunt Leslie M. Newman John C. Ryan Jason A. Templin Linda Sue Hurst Jessica Lee Newman Matthew Thomas Ryan Timothy B. Theissen Brandie M. Ingalls Frank Kelly Newman John F. Salazar Daniel N. Thomas Frederick G. Irtz II Mark Edward Nichols Stephen A. Sanders Dennis Leo Thomas Nicole Ellen Jackson Troy Nance Nichols Kathleen Savatiel David H. Thomason Gregory K. Jenkins Edward R. Nicklaus Michael A. Schafer Jennifer Lynn Thompson Walter Charles Jobson Richard Martin Nielson Kathleen K. Schmidt William Eugene Thro Harold M. Johns Bruce A. Niemi John Hilary Schmidt Lindsay Hughes Thurston Gary C. Johnson Nicholas M. Nighswander Charles E. Schroer Roy W. Tooms Ronald E. Johnson, Jr. Spencer D. Noe Jacqueline K. Schroering Denise Nicole Trauth Paul E. Jones Christopher S. Nordloh Michael Stuart Schwendeman Allen C. Trimble Susan M.W. Jones Eileen M. O’Brien Philip Joseph Schworer Gretchen A. Tromp Charles Irving Jones, Jr. Michael J. O’Connell John J. Scott Robert Steven Ukeiley Lisa Cobb Jones Stephen M. O’Connor David Michael Scott Thomas Allen Van De Rostyne Christopher W. Jones Lynne Marie O’Connor George L. Seay, Jr. Patricia A. Van Houten Kara Jill Justice Margaret O’Donnell Marion D. Seitz Michael J. Van Leuven Kelly Ann Kane Mark Allen Ogle Kathryn Hibbs Senter Richard Allen Vance Laura Ann Karem John Kirk Ogrosky Richard Allen Setterberg Marcus Lee Vanover Carolyn Sue Keeley David Y. Olinger, Jr. Jimmy Adell Shaffer Jay R. Vaughn Charles R. Keeton Samuel J. Ottley III Kathleen Marie Sheehan James Anthony Vaught Linda Marion Keeton Jennifer S. Overmann Jeffrey E. Sherr Jonathan Lee Wampler John Warren Keller Mark R. Overstreet Phillip Dane Shields Gregory Ward Sherri Lynn Keller Michael A. Owsley Karen Lee Shinkle Penny R. Warren Janet Godsey Kelley Brian Keith Pack Patrick Alan Shoulders Melanie McCoy Warren Jerred Thomas Kelly Carol B. Paisley Ashley Renee Shouse John Scott Waters IV Valerie S. Kershaw Stephen Palmer Shane C. Sidebottom Whitney F. Watt Ellie Garcia Kerstetter Peter David Palmer Hamilton B. Simms Jenna Renee S. Watts Susan E. Kidd John Anthony Palombi Frank Gates Simpson III Leonard A. Weakley, Jr. David Dale King Nicole Hou Wen Pang Andrea C. Simpson Richard McKee Wehrle John Stephen Kirby Barbara Maggio Pauley Logan Nicholas Sims R. Leonard Weiner Jeremy Kirkham Alan Donald Pauw, Jr. Mark Albert Sipek John Kevin Welch Carrie E. Klaber David Gary Perdue Diana L. Skaggs Teresa Kay Whitaker Jennifer L. Kovalcik Kimberly P. Perry Angela Elaine Slaton Tamela Jane White Steven J. Kriegshaber Jeanne M. Picht Gordon Ray Slone Michelle Renee Williams Bruce Andrew Krone Allen Carl Platt II Matthew Jon Smith Kenneth Thomas Williams II Bruce Edward Kuegel, Sr. Stephen Howard Poindexter Linda Tally Smith Wesley Kiser Williams La Mer Kyle-Griffiths Hans George Poppe, Jr. Meggan E. Smith Mildred Gail Wilson Brian Jay Lambert Richard C. Porter, Jr. Scott M. Smith Linda Carnes Wimberly Dean A. Langdon Pamela H. Potter Valorie Denise Smith Jennifer L. Wittmeyer Stephanie D. Langguth John G. Prather, Jr. Mark Francis Sommer Jamhal Lashon Woolridge Erwin Wayne Lewis Jeffrey Ray Prather G. David Sparks Gerald Edward Wuetcher Bobbi Jo Lewis Jerome Park Prather Herbert B. Sparks Wilbur M. Zevely Sheryl J. Lowenthal Nicole M. Prebeck Jamie Lynn Spinks Michael Dean Zimmerman Mark Allen Loyd, Jr. Damon Loyd Preston Sarah Cronan Spurlock Ryland F. Mahathey Cathy Eileen Prewitt Chandrika Srinivasan Dennis Charles Mahoney E. Austin Price Debra Kaye Stamper Reid Stephens Manley Milton Hance Price Rhonda S. Stanger Frank Mascagni III Carl Eugene Pruitt, Jr. Jackie Lynn Steele Allie George Mason, Jr. Patricia Lynn Pryor Jennifer Ann Steele WhoWhatWhenWhere_Mar13.qxd 3/18/13 9:40 AM Page 58 WHO, WHAT, WHEN & WHERE ON THE MOVE Tennessee. Trimble has also represented United States District Judge Charles R. healthcare industry clients through multiple Simpson III announced that, after over 26 Prominent construction professional malpractice carriers and sev- years of active service, he will take senior attorney William G. (Bill) eral hospitals in malpractice defense mat- status, effective Feb. 1, 2013. Judge Geisen has joined Stites ters, including University of Kentucky Simpson was appointed to the court in & Harbison, PLLC, as a Medical Center, Trover Clinic/Regional 1986 by then President-Ronald W. member of the firm’s Medical Center, St. Joseph Hospital, and Reagan. He had previously been in private Construction Service Marymount Medical Center. He also has practice as a lawyer. He served as chief Group. Geisen is the only represented individual physicians and med- judge from 1994 to 2001. Judge Simpson attorney from the Greater ical practice groups in licensure issues. was named Judge of the Year by the William G. (Bill) Cincinnati area who is a Louisville Bar Association in 2000. The Geisen fellow in the American Christy J. Adams is pleased to announce Kentucky Bar Association named him as College of Construction the commencement of her new practice, Kentucky’s Outstanding Judge in 2005. Lawyers, an honor reserved for the top one C. J. Adams Law, PLLC, located at 200 He received the Outstanding Alumnus percent of the U.S. construction bar. Geisen S. Buckman Street, Shepherdsville. She award from the University of Louisville will continue his practice in the Cincinnati/ plans to concentrate her practice in the Louis D. Brandeis School of Law in 1999, Northern Kentucky market. Stites & areas of bankruptcy and creditors rights, and in 2006 was the recipient of the Harbison is in the process of opening an probate, wills, collections, and general Grauman Award, the law school’s highest office in the RiverCenter II building in civil practice. Adams is available to assist honor. Judge Simpson served in 2006 and Covington. This will be the firm’s first clients in Bullitt, Nelson, Larue, Jefferson, 2007 as a member of the Judicial office in the Greater Cincinnati area and and other nearby counties. The telephone Conference of the United States, the fed- will extend the firm’s daily practice into number is (502) 543-2210 and email eral judiciary’s governing board, which is Northern Kentucky, Ohio and southeastern address is [email protected]. chaired by the Chief Justice of the United Indiana. Geisen’s construction practice States. He represented the Federal District focuses on contract negotiation, dispute The law firm of Stevenson, Land & Judges from Kentucky, Michigan, Ohio resolution and litigation. Tierney (formerly Stevenson & Land) is and Tennessee. Judge Simpson is a 1967 pleased to announce that Matthew C. graduate of the University of Louisville Congratulations to Tierney has become a partner in the firm. and its Brandeis School of Law in 1970. Brandon Faulkner of Tierney focuses primarily in the areas of our Lexington office as civil litigation, real estate, estate planning Weber & Rose, P.S.C., he was recently named and creditor-debtor law, including bank- is pleased to announce partner of Quintairos, ruptcy. Tierney is a 2003 graduate of Centre that Susan T. Merrill is Prieto, Wood & Boyer, College and 2008 graduate of Thomas M. of counsel with the firm. P.A. Faulkner was an Cooley Law School. He is admitted to prac- Merrill received her J.D. assistant Commonwealth tice law in all state courts and U.S. District from the University of Brandon attorney for several years Court, Western Division. Tierney joined the Louisville Louis D. Faulkner focusing on gang and nar- firm following his admission to the Brandeis School of Law cotics related prosecu- Kentucky Bar in May 2008. He is a mem- Susan T. Merrill in 1995 and her B.A. tions before he went into private practice. ber of the board of directors of Daviess from Baylor University He is now instrumental in driving our County Senior Services, Inc. in 1991. During law school Merrill long-term care defense practice in the served as president, Moot Court Board, eastern part of Kentucky which includes J. Guthrie True, Richard M. Guarnieri, 1994-95, she received the Leon Siedman some of the nation’s most difficult defense and William C. Ayer, Jr., are pleased to Memorial Scholarship for leadership and venues. Faulkner also handles profes- announce the formation of True Guarnieri service, 1995; she was on the Intellectual sional liability defense as well as product Ayer, LLP. Also joining them as an associ- Property Law Moot Court Team, 1995; liability matters. ate is Whitney True Lawson. True is a Susan was the runner-up, Pirtle-Washer 1981 graduate of Georgetown College and Moot Court Competition, 1993. Merrill Frost Brown Todd recently named a 1984 graduate of the University of concentrates her practice in the areas of Richard E. Plymale and David C. Kentucky College of Law. Guarnieri is a corporate law & estate planning. She rep- Trimble as members of the firm. Plymale 1983 graduate of Centre College and a resents business clients on a broad array practices in the Business Litigation Group. 1986 graduate of the University of of corporate matters including business With over 20 years’ experience as a civil Kentucky College of Law. Ayer is a 1965 formation, mergers & acquisitions, com- and criminal trial lawyer, he concentrates graduate of Murray State University and a mercial real estate leases & purchases, his practice in white collar crime defense, 1968 graduate of the University of employment law matters, business suc- representing corporations and executives Kentucky College of Law. Lawson is a cession planning, estate & charitable gift subject to federal and state criminal and 2007 graduate of Transylvania University planning, probate law and adoptions. civil investigation proceedings, including and a 2011 graduate of the University of Prior to coming to Weber & Rose, she health care providers and organizations Louisville Louis D. Brandeis School of served as general counsel to a mid-sized undergoing audits and investigations. Law. True Guarnieri Ayer, LLP is located at regional manufacturing company. Trimble is in the Insurance and Tort 124 West Clinton Street, Frankfort, Ky., and Defense Practice Group. He has repre- is found on the web at www.truelawky.com. Gregg Y. Neal and Todd Davis with Neal sented insurance industry clients in cover- The firm is engaged in civil and criminal & Davis, PLLC, 931 Main Street, age, regulatory, and bad faith/unfair claims trial and appellate practice, as well as the Shelbyville, are pleased to announce that practices matters throughout Kentucky and practice of administrative law. Matthew H. Chandler has joined the March 2013 58 Bench & Bar WhoWhatWhenWhere_Mar13.qxd 3/18/13 9:40 AM Page 59 WHO, WHAT, WHEN & WHERE firm. Chandler is a native and resident of Wyatt, Tarrant & Combs, LLP, is pleased to announce that the following attorneys Shelbyville. He received his law degree in have been elected to join the partnership: Sharon Gold, Sara Veeneman, and 2001 from the University of Kentucky Matthew Williams. Gold concentrates her practice in all areas of commercial litiga- College of Law. Prior to law school, tion including class actions, interference with business cases, breach of contract mat- Chandler worked as a certified public ters, breach of fiduciary duty actions, products liability suits, and other complex accountant. Chandler’s experience litigation. Gold practices in the firm’s Lexington office. Veeneman is a member of the includes business and corporate law, real firm’s Litigation & Dispute Resolution Service Team. She concentrates her practice in estate, probate, estate planning, litigation commercial litigation and appellate law. Veeneman practices in the firm’s Louisville and divorce. Chandler can be contacted at office. Williams concentrates his practice in the area of intellectual property law (502) 633-6002. including patent prosecution and enforcement, trademark prosecution and enforcement, trade secrets, copyrights, client counseling, transaction support, IP licensing, and IP lit- Frost Brown Todd is pleased to announce igation. Williams practices in the firm’s Louisville office. The firm also named Byron the addition of a new associate, Amy E. Leet, Frank Mellen and Turney Berry to its executive committee. Cooper, to the firm’s Louisville office. Cooper will be a part of the firm’s health law service team in its regulated business practice group. During law school and fol- lowing graduation, she was a certified legal intern and then post-graduate fellow for the Disability Law Clinic at Indiana University, representing and assisting in Sharon Gold Sara Veeneman Matthew Williams Byron Leet Frank Mellen Turney Berry representation of clients in Medicaid and Social Security Disability hearings. She and commercial disputes of all shapes and practice is broad based, she has become also served as a research assistant for the sizes. While he has handled matters in vir- particularly adept at defending insurance Center for Law, Ethics, and Applied tually all major areas of dispute resolution companies against bad faith allegations in Research in Health Information at Indiana and litigation, his primary areas of prac- some of the most difficult venues in the University, researching HIPAA and tice are business and commercial litiga- country. HITECH regulations as well as state laws tion, estate and trust litigation and related to health information. Cooper healthcare law. Samantha Propp and Aaron Smith, both earned her J.D., cum laude, at Indiana attorneys at English, University Maurer School of Law. She Congratulations to Lucas, Priest & Owsley, earned her B.A. in economics, summa cum Heather McCollum of LLP, (ELPO) in laude, from Simmons College in Boston. our Lexington office as Bowling Green, were she was recently named recently named partner at The law firm of Stevenson, Land & partner of Quintairos, the firm. Propp came to Tierney is pleased to announce that Prieto, Wood & Boyer, work at ELPO in 2008. Shannon M. Tanner has joined the firm P.A. McCollum is a 2001 She works primarily in as an associate. Tanner’s practice will graduate of the University Samantha Propp the areas of environmen- focus on civil matters in both Kentucky Heather of Kentucky School of tal law, school law and and Indiana. As resident of Spencer McCollum Law and although her employment law. She holds a J.D. from County, Ind., Tanner attended Kentucky Wesleyan College where she graduated magna cum laude. After graduation, Tanner worked for NASA, before attend- ing the Indiana University School of Law where she served as a managing editor for the Federal Communications Law Journal and attained Dean’s Honors. She obtained her license to practice in Indiana in October 2004 and in Kentucky in May 2005. She is experienced in a number of legal fields including domestic relations, bankruptcy and probate matters. Before joining the firm, she practiced in Southern Indiana for eight years. Tanner is currently a member of the Kentucky, Daviess County and Indiana State Bar associa- tions. Dinsmore & Shohl LLP is pleased to announce that Michael C. Merrick has been promoted to the firm partnership. Merrick will work out of the Louisville office and helping clients resolve business March 2013 Bench & Bar 59 WhoWhatWhenWhere_Mar13.qxd 3/18/13 9:40 AM Page 60 WHO, WHAT, WHEN & WHERE the University of Arizona of Cincinnati College of Law in 1986 Frost Brown Todd is pleased to announce James E. Rogers College after obtaining his undergraduate degree the appointment of four new members in the of Law, a Master of Arts in business administration with an empha- Louisville office. The new members are: degree from the sis in accounting from Wittenberg Nathan L. Berger, Joseph B. Miller, D. University of San University three years earlier. Christopher Robinson, and Laquita S. Francisco, and a Bachelor Wornor. Berger focuses his practice on of Arts degree from the Middleton Reutlinger is assisting public and private companies with University of pleased to announce that general business and corporate issues, acqui- Aaron Smith Pennsylvania. She is Billy J. Mabry has sitions and divestitures, among other strate- admitted to practice law joined the firm. Mabry gic transactions. He frequently works with in Oregon and Kentucky, and is a 2009 concentrates in the health financial institutions regarding regulatory graduate of Leadership Bowling Green. law field having more issues and intra interstate reorganizations Smith came to work at ELPO as an attor- than 20 years of experi- and acquisitions. In addition to this, his bank ney in 2006. His practice focuses on civil ence representing hospi- regulatory practice includes the review, litigation and corporate defense work. He Billy J. Mabry tals, physicians, home analysis and negotiation of various agree- holds a J.D. from the University of health agencies, nursing ments and regulatory actions for financial Kentucky College of Law and a Bachelor homes, provider sponsored organizations, institutions. Miller works in the areas of of Arts degree from Centre College. He is teaching facilities, diagnostic centers, mergers and acquisitions, private equity and admitted to practice law in Kentucky and ambulatory centers and others. He has venture capital transactions, the formation of is a 2007 graduate of Leadership Bowling represented health care providers across private investment funds and general entre- Green. He currently serves as president of the nation and in England. He has a keen preneurial/startup and small business advice. the Bowling Green-Warren County Bar knowledge and understanding of the He has extensive experience with M&A Association. healthcare industry not just as a lawyer, transactions involving both public and pri- but from an operations standpoint too. vate companies that range in different sizes. Fulton & Devlin, LLC, is pleased to He also regularly assists entrepreneurs, start- announce that Caroline Kentucky ElderLaw, ups and larger, closely-held companies on a Pitt Clark has joined the PLLC, in Louisville, is range of general business matters. Robinson firm. Clark was an pleased to announce that is a trial lawyer in the firm’s litigation Administrative Law Misty Clark Vantrease department. He specializes in mass torts, Judge with the and Kelly Gannott have products liability, and general tort defense, Department of Workers’ become full equity part- but he also represents clients in a variety of Claims from 2008 ners in the firm. Along commercial disputes involving contract through 2012, and prior with Bernard and interpretation and enforcement. In particular, Caroline Pitt to that she served as com- Misty Clark Rhoda Faller, they focus Robinson represents major agricultural Clark missioner of the Vantrease solely on the needs of equipment manufacturers on a national Kentucky Public Service older citizens and other basis, providing legal advice and guidance Commission. She is a graduate of the persons needing similar in over thirty jurisdictions. Wornor prac- University of Kentucky College of Law, care. Vantrease is the tices in the firm’s Labor and Employment Centre College, and Sacred Heart chair-elect of the Elder Department. Her practice is focused on rep- Academy. She concentrates her practice in Law Section of the resenting employers in matters arising from the areas of workers’ compensation law, Kentucky Bar both labor relations and employment litiga- civil litigation, subrogation, and white Association. Gannott tion. She has experience litigating age, sex, collar criminal defense. joined the firm in early disability, and race discrimination claims, as Kelly Gannott 2011 after operating her well as Family and Medical Leave Act Jefferson County Attorney Mike own elder law practice. (FMLA), and Uniformed Services O’Connell has appointed three new Employment and Reemployment Rights Act Assistant County Attorneys: Karen Gerner & Kearns Co., (USERRA) claims. Wornor has labor arbi- Davis, Mark Lueke, Brianda Rojas. L.P.A., recently tration experience and she often advises announced the appoint- clients on issues arising from the National Bingham Greenebaum ment of Todd V. Labor Relations Act. Doll LLP is pleased to McMurtry as a partner announce that Daniel E. in the firm’s Litigation Billings Law Firm, PLLC, is pleased to Fisher has rejoined the Practice Group. announce that Gary W. Thompson has firm’s Corporate and McMurtry brings with joined their office as an associate attorney. Transactional Practice Todd V. him over 20 years of liti- Thompson received his B.A. in biblical stud- Group. Fisher will be McMurtry gation experience and is ies from Boyce College, a school of the located in the Louisville licensed in both Ohio Southern Baptist Theological Seminary. He Daniel E. Fisher office, helping to expand and Kentucky. Since its inception in then received his J.D, summa cum laude, the regional impact of the 1987, Gerner& Kearns, Co., L.P.A. has from the Mississippi College School of Law, firm with his services. He focuses his evolved into a full service creditor’s where he was executive editor of the practice on complex business and finan- rights law firm dedicated to the represen- Mississippi College Law Review. Upon cial transactions, primarily focusing on tation of the banking industry in its graduation, Thompson was admitted to prac- the health care and health insurance indus- admitted states of Ohio, Kentucky, tice law in Kentucky and Tennessee and tries. Fisher graduated from the University Indiana and Michigan. served as law clerk for the Honorable Greg March 2013 60 Bench & Bar Project5 3/15/13 2:24 PM Page 61 WHO, WHAT, WHEN & WHERE Lay in Laurel and Knox Circuit Court. After Stites & Harbison, PLLC, announced today that three attorneys have been elected to his clerkship, Thompson moved to membership in the law firm. The new members are: Elizabeth Ann Johnson from Lexington, with his family and entered into the Lexington office; Amy Sullivan Cahill from the Louisville office; and William practice with a civil defense firm that exem- Charles Ferrell, Jr., from the Nashville office. Those elected to counsel include: plified professionalism and where he gained Kenneth J. Gish, Jr., from the Lexington office; W. Robert Meyer from the invaluable litigation experience. Thompson’s Louisville office; and Jennifer L. Kovalcik from the Nashville, Tenn., office. practice with Billings Law Firm is devoted Elizabeth Ann Johnson is a member of the firm’s Health Care Service Group. She primarily to litigation and real estate matters. concentrates her practice in health care law and regulatory issues. Amy Sullivan Cahill is a member of the firm’s Intellectual Property & Technology Service Group. has Clay B. Wortham Her practice focuses on trademark and copyright litigation, advertising review, trade- joined McBrayer, mark prosecution, trade secret counseling and litigation, licensing and transactional McGinnis, Leslie and matters. William Charles Ferrell, Jr., is a member of the firm’s Intellectual Property Kirkland, PLLC’s & Technology Service Group. He is a Registered Patent Attorney with a degree in Lexington office as an Mechanical Engineering. His practice primarily focuses on patent litigation, however, associate in the Health his practice frequently involves other aspects of intellectual property including trade- Care Department. He mark and copyright litigation, patent drafting, patent prosecution, and counseling provides health law regu- clients on the validity of a patent or the patentability of new ideas. Kenneth J. Gish, latory and transactional Clay B. Wortham Jr., is a member of the Environmental, Natural Resources and Energy Service Group, advice to health care where his practice focuses on complex facility permitting, electric utility regulation, providers and related entities, including sustainability, hazardous waste remediation, renewable and alternative energy devel- hospitals, pharmaceutical companies, opment, compliance with regulatory requirements and environmental litigation. W. health plans and physician groups. Clay Robert Meyer is a member of the firm’s Creditors’ Rights & Bankruptcy Service joins McBrayer from the Chicago law Group. His practice focuses on creditors’ rights, commercial foreclosure, receiver- firm of Quarles & Brady LLP. ships, workouts, judgment enforcement, collections, and bankruptcy. Jennifer L. Kovalcik is a member of the firm’s Intellectual Property & Technology Service Garvey Shearer, PSC, is Group. Her practice concentrates on designing and implementing intellectual property proud to announce that protection plans, enforcing intellectual property assets and software licensing. She was Jason E. Abeln also prosecutes trademark and copyright registration applications, litigates trademark named partner in the firm. opposition and cancellation proceedings, handles domain name and internet content Abeln joined Garvey disputes, as well as negotiates and drafts licenses and other contracts that implicate Shearer as an associate in intellectual property or technology rights. 2010 and has worked with the founding partners since Jason E. Abeln his graduation from the University of Cincinnati College of Law in 2005. Licensed in state and federal courts in Ohio and Kentucky, his practice focuses on civil trial and appellate litigation. He represents businesses and indi- viduals in cases ranging from automobile Amy Sullivan W. Robert Elizabeth Ann Kenneth J. William Charles Jennifer L. Cahill Meyer Johnson Gish, Jr. Ferrell, Jr. Kovalcik accidents to contract disputes to federal class action regulatory compliance. In addi- tion to practicing law, Abeln served on the board of the Young Lawyers Division of the When you need Cincinnati Bar Association for four years before being elected secretary of the execu- TITLE INSURANCE tive board of the YLS, then vice chair, and ink currently chair elect. Abeln earned a Bachelor of Arts in history in 2002 from Title - Kentucky Thomas More College where he graduated summa cum laude. t"DDFTT UP NVMUJQMF VOEFSXSJUFST UP FOTVSF CFTU QSJDJOH t&YQFSJFODFE QSPGFTTJPOBM TFSWJDF GPS CPUI DPNNFSDJBM Dov Moore announces BOE SFTJEFOUJBM USBOTBDUJPOT the opening of his solo t*NQSPWFE JODPNF UISPVHI PVS TIBSJOH BHSFFNFOUT practice in Bowling Green, Ky., Law Office t3FMJBCMF TFSWJDF UP NFFU ZPVS DMJFOUT OFFET of Dov Moore, PLLC, a 5*5-& */463"/$& t &4$308 4&37*$&4 general civil, trial and appellate practice. Moore 1031 EXCHANGES practiced civil litigation #F 1SFQBSFE t ćJOL "IFBE t $BMM 5PEBZ Dov Moore with Cole & Moore, Jim May P.S.C., from 1991-2012. 859-273-2271 Moore graduated from Vanderbilt [email protected] University Law School in 1991. March 2013 Bench & Bar 61 WhoWhatWhenWhere_Mar13.qxd 3/18/13 9:40 AM Page 62 WHO, WHAT, WHEN & WHERE Fowler Bell PLLC is Grant M. Axon is Brandeis School of Law in 2002 and pleased to announce that pleased to announce the Master’s degree of business administra- Laura Salzman has formation of his law firm, tion from Bellarmine Collegein 1995. He joined the law firm as an Grant M. Axon, PLLC. earned a Bachelor of Arts degree from associate practicing in Axon is a 2012,cum Miami University in Ohio in 1985. He is commercial litigation and laude, graduate from the a member of the Louisville and Kentucky collections. She holds a University of Louisville Bar Associations. political science under- Louis D. Brandeis School Laura Salzman graduate degree from Grant M. Axon of Law. Grant M. Axon, Reminger Co., LPA, elected Matthew Northern Kentucky PLLC, is located at 509 T. Lockaby as shareholders during their University and her J.D. is East Main Street, Warsaw, KY 41095. The annual November shareholder meeting. from the University of Kentucky College firm can be contacted directly at (859) Lockaby focuses his practice on the of Law. She also voluntarily serves with 567-2000, or by facsimile at (859) 567- defense of employment, product liability, the Fayette County Foster Care Review 2966. Grant M. Axon, PLLC, concentrates personal injury, and class action claims. Board. its practice in litigation involving personal injury, criminal, family and tax issues. Adams, Stepner, Woltermann & Paul J. Wischer is the Dusing, PLLC, is pleased to announce newest associate at Stites & Harbison, the following appointments for the 2013 Ziegler & Schneider, PLLC, has created a new calendar year: Jeffrey C. Mando – P.S.C., in Crescent position, chief talent offi- head of Civil Litigation Practice Springs, Ky. Wischer pre- cer (CTO), which will Groups, Mary Ann Stewart – viously worked with oversee the firm’s efforts Government Practice chairperson, Ziegler & Schneider as a to attract and retain top Stacey L. Graus – General Civil law clerk while attending legal talent in our nine Litigation chairperson; Dennis R. Paul J. Wischer Northern Kentucky offices throughout the Williams – Business Law chairperson, University’s Salmon P. Shannon Antle Southeastern U.S. The Michael M. Sketch – Commercial Chase College of Law where he graduated Hamilton CTO will oversee all firm Banking and Real Estate chairperson, cum laude. As an associate, Wischer will recruiting, professional James G. Woltermann – Estate work primarily in the firm’s development and diversity efforts of the Planning, Probate, and Elder Law chair- Business/Corporate and firm. Shannon Antle Hamilton, an person, and Benjamin G. Dusing – Municipal/Government Practice Groups. employment law attorney with Stites & Federal White Collar Criminal Defense He is currently licensed in the state of Harbison since 1988, has been named as chairperson. The law firm is proud to Kentucky and is a member of the the firm’s chief talent officer. In her new offer its clients and prospective clients a Kentucky, Northern Kentucky and role, Hamilton will continue her duties and full range of legal services in this com- American Bar associations. role as co-chair of the Employment Law petitive business environment. Adams, Service Group and will also practice as a Stepner, Woltermann & Dusing, PLLC, Stoll Keenon Ogden PLLC is pleased to member of the firm. Hamilton is a current continue to make strides to meet the announce that attorney Allison J. Donovan member and the first chair of the firm’s legal needs of Greater has been promoted to member of the firm. Diversity Committee and was instrumental Cincinnati, as well as Donovan practices law in the area of busi- in the drafting and adoption of the firm’s through Kentucky and the ness services with a focus on mergers and Diversity Plan. Hamilton also previously local region. The firm acquisitions. She also practices in banking, served on the Recruiting Committee, per- continues to offer focused securities and real estate law. Donovan is a sonally interviewing candidates for sum- representation and excep- graduate of the University of Kentucky mer, associate and lateral positions. tional client service and College of Law and enjoys involvement in value to its clients. community organizations and efforts, Greg S. McDonald is an Jeffrey C. Mando including the American Heart Association’s associate in the Lexington chapter and Junior Achievement. Louisville office of Quintairos, Prieto, Stoll Keenon Ogden PLLC (SKO) is Wood & Boyer, P.A. pleased to announce it is opening an office McDonald focuses his in Owensboro. The office is the eighth for practice in the areas of the firm and the sixth location in Kentucky. long-term care defense, The Owensboro office will have two attor- Greg S. insurance defense, insur- Mary Ann Stacey L. Dennis R. neys. Joining the firm is a longtime McDonald ance coverage and work- Stewart Graus Williams Owensboro attorney with more than 40 ers’ compensation years of legal experience, Charles Lamar. defense litigation. McDonald’s practice in Tim Kline, a 1995 graduate of Daviess the areas of commercial and civil litiga- County High School, who joined SKO in tion is augmented by his past experience 2010 after three years practicing in a top as an attorney with two Louisville law New York City firm, will also practice in firms specializing in long-term care the Owensboro office. SKO’s office defense and medical malpractice claims. Michael M. James G. Benjamin G. opened in late-January and is located at McDonald received his J.D. from the Sketch Woltermann Dusing 101 East Second Street, Suite 200. University of Louisville Louis D. March 2013 62 Bench & Bar Project5 3/15/13 2:26 PM Page 63 WHO, WHAT, WHEN & WHERE He has represented employers in state Lexington office, has been elected as Patla, Straus, Robinson & Moore, P.A. of and federal courts and state administra- chairman of the Lexington Center Asheville, N.C., is proud to announce that tive agencies in connection with a wide Corporation. Lexington Center firm member, Andrew D. Atherton, has variety of workplace issues and handled Corporation (LCC) is a not-for profit been appointed chair of the North all phases of class action litigation, from 501c4 corporate agency of the Lexington Carolina Bar Association’s Elder Law initial removal to federal court, to Fayette Urban County Government Section. Atherton is a graduate of defeating class certification, to negotiat- (LFUCG) created to manage and main- Western Kentucky University, B.S. ing and managing settlement. As a mem- tain the following facilities: Rupp Arena, (1996) and Northern Kentucky University ber of the American Bar Association, he The Lexington Opera, Lexington Salmon P. Chase College of Law (2000). serves on both the Class Action and Convention Center, The Shops at He focuses his practice on elder law and Derivative Suits Committee and the Lexington Center and Triangle Park. Rice is licensed to practice law in North Employment Law Committee. He is also succeeds Cecil F. Dunn, of counsel in the Carolina and Kentucky. a member of the Kentucky Bar firm’s Lexington office, where he served Association, Fayette County Bar as chairman of LCC for 20 years of his Robert M. Hoffer has Association, Federal Bar Association, 26 years of board service. been named “The 2012 Defense Research Institute and Kentucky Distinguished Lawyer of Defense Counsel. Lockaby can be Wyatt, Tarrant & Combs, the Year” by the Northern reached by calling 859-426-4631or by LLP, is pleased to Kentucky Bar Association emailing [email protected]. announce that Lisa C. (NKBA). Hoffer has been DeJaco has been select- a member of NKBA since Middleton Reutlinger is ed to participate in the 1985. He heads Dressman pleased to announce that Bingham Fellows Class Robert M. Hoffer Benzinger LaVelle, psc’s Manav Das, Ph.D., has of 2013. The Bingham employment law division joined the firm. Dr. Das Fellows is the leader- and represents employers of all sizes is a registered patent Lisa C. DeJaco ship-in-action arm of the including some of the largest throughout attorney in the firm’s Leadership Louisville the Kentucky and Greater Cincinnati area. intellectual property prac- Center. For over 20 years, the program He has also represented hospitals and tice group. His areas of has provided experienced leaders with physicians for over 30 years on employ- Manav Das, concentration include the opportunity to develop solutions for ment and medical negligence issues and Ph.D. patent prosecution and our community’s most pressing prob- has successfully litigated numerous intellectual property liti- lems. DeJaco is an alumni of the employment cases in federal and state gation. Dr. Das has a background in math- Leadership Louisville program, and a courts. He is the current past-president of ematics and computer science. He partner in the Firm. She concentrates her the Kentucky Defense Counsel, chair of received his J.D. from the University of practice in the area of intellectual proper- the Northern Kentucky Chamber’s Labor Louisville Louis D. Brandeis School of ty litigation, where she has prosecuted and Employment committee and a member Law in 2008 and his Ph.D. in mathemat- and defended unfair competition claims, of the Northern Kentucky Human ics from The Ohio State University in trade secret disputes, and infringement Resource Association. He has practiced 1996. actions over copyrights, trademarks and law with Dressman Benzinger LaVelle, patents. psc, since he earned his J.D. in 1980. Calfee, Halter & Griswold LLP is pleased to announce it is expanding its presence in Ohio. Additionally, Matthew Parrish joins Calfee’s legal team as its newest partner in the Cincinnati office. Parrish has many years of experience in domestic and international business trans- actions, with a focus on mergers and acquisitions, reorganizations and business and capital markets. A particular area of focus of his practice has been working with manufacturers and marketers of con- sumer products, both domestically and internationally. Parrish also serves as counsel to a number of clients in the entertainment industry. In 2012, he was recognized as one of the country’s lead- ing entertainment lawyers by Newsweek magazine. IN THE NEWS McBrayer, McGinnis, Leslie & Kirkland, PLLC is pleased to announce that W. Brent Rice, member of the firm’s March 2013 Bench & Bar 63 WhoWhatWhenWhere_Mar13.qxd 3/13/13 7:57 PM Page 64 WHO, WHAT, WHEN & WHERE Peter Perlman of the House leadership team. Until the Jan. Hospice of the Bluegrass Lexington, has been 8th election, Rep. Overly had served as Announces 2013 Board named the 2013 presi- chairwoman for the past four years of the Chair,D. Woodford dent of the Litigation House Budget Review Subcommittee on Webb, Jr., of counsel with Counsel of America. Transportation, an influential committee Webb, Hoskins, Glover & Perlman is the principal that puts together the state’s highway Thompson, P.S.C., is serv- of Peter Perlman Law plan. Rep. Overly is a Bourbon County ing a second year as chair- Offices, P.S.C., where he native who has practiced law for 20 man of the Board of Peter Perlman specializes in product years. Prior to that, she was a civil engi- D. Woodford Hospice of the Bluegrass. liability and crash-wor- neer with the Kentucky Transportation Webb, Jr. Webb earned his J.D. from thiness litigation. During nearly 50 years Cabinet. Northern Kentucky of practicing law, Perlman has won more University Salmon P. Chase College of Law than 50 multi-million dollar verdicts and Bubalo Goode Sales & in 1996 and a Bachelor of Science degree settlements on behalf of his clients. In Bliss PLC announced that from Washington & Lee University in 1990. addition to being a fellow of the Leslie M. Cronen has Litigation Counsel of America, he is a been named one of the Laura Day DelCotto of DelCotto Law member of both the Inner Circle of “Top 40 Under 40” by Group PLLC has been nominated as a Advocates and International Society of The National Trial Kentucky fellow in the American Bar Barristers, a fellow of the International Lawyers. Cronen is an Foundation. The American Bar Foundation Academy of Trial Lawyers, served on the attorney in the Louisville is an honorary organization of lawyers, Board of Trustees of the National Leslie M. Cronen office. She joined the firm judges, law faculty, and legal scholars Judicial College, and is a founding mem- in 2006 and concentrates selected by their peers for demonstrating ber and past president of the Trial her practice in the areas of wrongful death, outstanding achievements in the legal pro- Lawyers for Public Justice. He is also medical malpractice, pharmaceutical liabil- fession. The foundation, created in 1952 by past president of the Association of Trial ity and mass tort litigation on behalf of the American Bar Association, is recog- Lawyers of America, the Civil Justice injured individuals. Cronen received her nized as the nation’s premier research insti- Foundation, and the Kentucky Academy J.D., with honors, from the University of of Trial Attorneys. Perlman was also the Louisville Louis D. Brandeis School of The law firm of Bubalo Rotman PLC recipient of the Compassionate Gladiator Law. There she was involved in the Law changed its name to Bubalo Goode Award from the Florida Justice Review, Moot Court and honor council. Sales & Bliss PLC. The new name rep- Association and the Leonard M Ring She earned her undergraduate degree from resents continuing growth and new Champion of Justice Award from AAJ. the University of Louisville. Cronen is a capabilities – it recognizes all the part- This is award is given for outstanding member of the American Bar, Kentucky ners plus it includes a new attorney who contributions to the civil justice system, Bar, Indiana State Bar, Louisville Bar, is associating with the firm. The attor- overall character and integrity as well as Kentucky Justice and Indiana Trial neys who comprise the firm name are his contributions to the public good and Lawyers associations and the American Gregory J. Bubalo, Christopher W. welfare. This award is also based on con- Association for Justice. She is a Goode, Kenneth L. Sales and Paula S. tributions to trial advocacy and the legal Leadership Academy fellow and com- Bliss. This transition also recognizes the profession generally. pleted a two year term as an associate exit of Steven B. Rotman to pursue member of the Brandeis Inn of Court. other interests. Bubalo Goode Sales & has been elected as the Brian T. Goettl Bliss PLC is a plaintiff litigation firm president of the Jessamine County , a partner at Felix Gora handling cases for individuals injured by Chamber of Commerce for the 2013-2014 Rendigs, Fry, Kiely & prescription drug side effects, product term. Goettl has served on the board of Dennis, has been certified defects, vehicle accidents and other directors for three years and previously by the Ohio State Bar types of catastrophic damage caused by served as treasurer of the organization. He Association as a specialist the negligence of others. The firm han- is the first county wide elected official to in Labor and Employment dles individual cases in all have held the position. Goettl is a 1984 law. This certification parts of the country and undergraduate of the University of makes Gora one of a also participates in multi- Kentucky Business School and a 1995 small group of attorneys Felix Gora district litigation of mass graduate of the College of Law. in Ohio to have earned torts cases. Bubalo Goode this distinction. Gora’s practice is concen- Sales & Bliss has offices trated in the areas of employment, insur- State Rep. Sannie in Louisville, Lexington Overly, who began rep- ance, civil rights, personal injury appellate nd Kenneth L. and Boston. resenting the 72 House and aviation law. Gora’s court appellate Sales District in 2008, will background is a key factor in his selection serve as the Kentucky to handle some of the most difficult proce- House of dural issues in litigation. Gora received his Representatives’ Majority undergraduate degree at Miami University. Caucus Chairwoman for He is a 1980 graduate of University of Rep. Sannie the next two years, fol- Cincinnati College of Law. Overly lowing an election by her fellow House Democrats. Gregory J. Christopher Paula S. Bliss She is the first woman ever to be part of Bubalo W. Goode March 2013 64 Bench & Bar Project1 3/18/13 10:46 AM Page 1 WHO, WHAT, WHEN & WHERE tute on issues facing the legal system and providers, regarding the full spectrum of Tom Sawyer State Park Foundation is a the impacts of the law on society. Selection pharmacy and drug-related matters. volunteer organization that contributes as a fellow in the foundation is limited to Services address provider and professional ideas and funds to benefit projects and one-third of one percent of the lawyers issues, including regulatory compliance and activities at E. P. “Tom” Sawyer State Park. admitted to practice in each jurisdiction of enforcement support, development and Melvin is an attorney in the firm’s the United States. maintenance of compliance programs, Louisville office and a member of the Medicare and Medicaid reimbursement, pri- Corporate and Transactional Practice Hall, Render, Killian, Heath and Lyman, vate payor reimbursement, and fraud and Group. His practice focuses on mergers the largest health care focused law firm in abuse advice and litigation defense. and acquisitions, securities, antitrust and a the nation, has capped off a year of growth variety of matters in the distilled spirits with the formation of a pharmacy practice Bingham Greenebaum Doll LLP attorney industry. Melvin is a member of the area. Although this formal practice area is Mark A. Melvin was recently elected to Kentucky Bar Association, Louisville Bar new, several attorneys in the firm have uti- serve on the board of directors of the Tom Association and the 2013 graduating class lized their pharmacy-related knowledge and Sawyer State Park Foundation for a three- of the Funds for the Arts’ NeXt! experience in serving clients for years. year term. The board strives to build public Leadership Development Program. He Attorneys who practice in Hall Render’s support, awareness and utilization of the received his bachelor’s degree from the pharmacy practice area counsel clients, park, and they encourage state government University of Richmond and his law degree k including retail pharmacies, mail-order support of Jefferson County’s representa- from the University of Louisville Louis D. pharmacies, hospitals and long-term care tive in the Kentucky state park system. The Brandeis School of Law. KENTUCKY LAWYERS SPEAK oral history from those who lived it a publication of the kentucky bar association CLICK To purchase copies, complete the order form below and mail or fax it to Butler Books, P.O. Box 7311, Louisville, KY 40207 www.butlerbooks.com – Fax (502) 897-9797 I would like to purchase the following number of copies of Funded by a generous grant KENTUCKY LAWYERS SPEAK from the Kentucky Bar ORAL HISTORY FROM THOSE WHO LIVED IT Foundation, “Kentucky Lawyers GERALD R. TONER, EXECUTIVE EDITOR AND CHAIR, ORAL HISTORY PROJECT • LESLIE W. ABRAMSON, EDITOR $24.95 Speak Hardcover, with does what any good full-color dustjacket 6x9 Quantity Unit Price Total book should – it makes you 552 pages want to read on,” according to a In KENTUCKY LAWYERS SPEAK: Oral History From Those Who Lived It, seventy-four lawyers, interviewed over a ______x $24.95 $ ______fifteen-year period (1993 – 2008), share stories and personal reflections on their lifetime of practicing law in the review by Dr. James C. Klotter, Commonwealth of Kentucky. Sales Tax $ ______(6% KY Addresses only, if applicable) the State Historian of Kentucky This unique collection of one-on-one conversations with senior members of the Kentucky Bar is fascinating and important reading for students of history and the law. Born between 1903 and 1933, they all lived through the Great Shipping and Handling $ ______Depression, fought in World War II and Korea, and have left indelible marks on the legal profession in Kentucky. and a professor of history at ($5.00 for the first book; Their oral histories and reminiscences, captured in over 4,000 pages of original transcripts, have been edited by the $1 per book thereafter) Georgetown College. “The sto- Kentucky Bar Association, with support from the Kentucky Bar Foundation, into this extraordinary collection of interviews which will preserve their life stories and legacy for posterity and inspire future generations of Kentucky lawyers. TOTAL $ ______ries here tell of the human side of the law, of the joys and sor- rows, of the hopes and KENTUCKY LAWYERS SPEAK despairs, of the humor and Published by Butler Books oral history from those who lived it pathos. These interviews pro- NAME ______To order copies of vide the raw material of history, Kentucky Lawyers Speak COMPANY ______from those who lived it, for Oral History From Those Who Lived It those who enjoy it now. They ADDRESS ______complete this form and mail or fax it to: make the law come alive and CITY ______STATE ______ZIP ______make history come alive.” Butler Books DAYTIME PHONE ______FAX ______P.O. Box 7311 Kentucky Lawyers EMAIL ADDRESS ______Louisville, KY 40207 Copies of Phone (502) 897-9393 Speak are now available from I wish to pay by: (Please check one) Cash Check (Enclose check, made payable to “Butler Books”) Fax (502) 897-9797 Email [email protected] the publisher, Butler Books. The Purchase Order # ______(Fax an original copy to (502) 897-9797) book may be purchased online Credit Card American Express Visa MasterCard Discover at www.butlerbooks.com or by www.butlerbooks.com ACCOUNT NUMBER faxing (502-897-9797) or mail- ing your order to Butler Books, Expiration Date (MM/YY) ______/ ______P.O. Box 7311, Louisville, Name on Credit Card ______Kentucky 40207. March 2013 Bench & Bar 65 Project5 3/15/13 2:27 PM Page 66 WHO, WHAT, WHEN & WHERE McBrayer, McGinnis, Leslie & Kirkland, practice group. He succeeds the firm’s Steven D. Jaeger, Esq., is proud to PLLC, is pleased to announce that Amy D. longstanding managing partner Gerald announce that he was recently sworn in to Cubbage, of counsel, has been elected to Benzinger. Dressman has extensive expe- his third consecutive term on Edgewood’s the KBA Board of Governors. She will rience representing entities and individuals City Council, located in Kenton County. serve a two-year representing the 4th in business mergers, asset acquisitions and Jaeger is the founding member of The Supreme Court District. The terms begins sales, real estate transactions and develop- Jaeger Firm, PLLC, which handles cases July 1, 2013. She will be eligible to run ment. He provides guidance for entity in the area of personal injury, mediation, again for two more two year terms at the structuring, reorganization, buy/sell appeals, and domestic. Jaeger can be con- end of her first term. arrangements, and business successions, tacted at (859) 342-4500 or by email at focusing on business and tax matters. [email protected]. Wyatt, Tarrant & Combs, Benzinger, too, will remain active with the LLP, is pleased to firm, supporting DBL Law’s extensive RELOCATION announce that Lisa E. health care practice. Underwood, a partner in Christine Ward is the Lexington office, has Frost Brown Todd associate, Carrie A. pleased to announce the been appointed to the Pytynia, has recently been elected to the relocation of her law prac- 2013 Commerce Special Olympics of Kentucky Board of tice. Her new office is Lexington Board of Directors. The board of directors is made located in Springhurst Lisa E. Directors. Underwood is up of business and sports leaders, Special Office Condominiums at Underwood a partner and member of Olympics athletes, and athlete’s parents 3801 Springhurst Blvd, the firm’s Corporate and and sets policies for the organization as Suite 107, Louisville, KY Securities Service Team. She concentrates well as shapes the direction of the pro- Christine Ward 40241. Her new phone her practice in the areas of equine law, gram. At Frost Brown Todd, Pytynia prac- number is (502) 709-3618. business law, mergers and acquisitions, tices in the commercial real estate and Ward serves clients need- legislative and regulatory initiatives, rac- lending areas. She received her J.D. from ing legal counsel in family court matters. ing, pari-mutuel and gaming law. Vanderbilt University Law School in 2011. She also received her undergraduate Hughes & Coleman has moved their Dressman Benzinger degree, summa cum laude, from Lexington office to 2333 Alexandria LaVelle, psc, (DBL) Vanderbilt in political science. Drive, Suite 119, Lexington, KY 40504. announced James A. Dressman, III, as the new managing partner at the firm. Dressman has Have an item for WHO, WHAT, WHEN & WHERE? over 35 years of experi- The Bench & Bar welcomes brief announcements about member placements, promotions, relocations and ence representing com- honors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, Kentucky James A. mercial banks and other Bench & Bar, 514 West Main Street, Frankfort, KY 40601 or by email to [email protected]. Dressman, III businesses in complex Digital photos must be a minimum of 300 dpi and two (2) inches tall from top of head to shoulders. There is financial transactions. He a $10 fee per photograph appearing with announcements. Paid professional announcements are also avail- joined the firm in 1977 and is currently the able. Please make checks payable to the Kentucky Bar Association. head of the commercial law and banking NOW HIRING: Law & Justice Instructor x Develop curriculum for law & justice program at state-of-the- art career & technical high school. x Teach law & justice courses in a technology-infused courtroom setting. x Collaborate with English and Social Studies teachers in a project-based learning village. 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