In This Issue: The 50th Anniversary of Gideon v. Wainwright nationalinsurance.qxd 3/14/13 1:37 AM Page 39 OWN OCCUPATION DISABILITY INSURANCE & GROUP TERM LIFE INSURANCE SOLUTIONS Simple 1-page applications No tax return requirements to apply High quality portable benets [email protected] | 800-928-6421 ext 222 | www.niai.com Underwritten by New York Life Insurance Company, 51 Madison Avenue, New York, NY 10010 on Policy Forms GMR and SIP. Features, Costs, Eligibility, Renewability, Limitations and Exclusions are detailed in the policy and in the brochure/application kit. #1212 CONTENTS_Mar.qxd 3/15/13 12:21 AM Page 1 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 Access the Kentucky Bar Association’s CAREER CENTER at www.kybar.org/720 JOB SEEKERS, YOUR NEXT CAREER OPPORTUNITY COULD BE CLOSER THAN YOU THINK. 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 <RXU Kentucky Bar UHVXPH ZLOO EH GLVSOD\HG IRU HPSOR\HUV WR YLHZ (;&(37 \RXU LGHQWLW\ Association DQG FRQWDFW LQIRUPDWLRQ ZKLFK ZLOO UHPDLQ FRQ¿GHQWLDO XQWLO \RX DUH www.kybar.org/720 UHDG\ WR UHYHDO LW Phone: 1.502.564.3795 9DOXHDGGHG EHQH¿WV RI FDUHHU FRDFKLQJ UHVXPH VHUYLFHV HGXFDWLRQ WUDLQLQJ DUWLFOHV DQG DGYLFH UHVXPH FULWLTXH UHVXPH ZULWLQJ DQG FDUHHU DVVHVVPHQW WHVW VHUYLFHV www.kybar.org/720 32:(5(' %< president_Mar13.qxd 3/14/13 1:20 AM Page 3 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.