Legal Malpractice

This issue of the Kentucky Bar Association’s Bench & Bar was published in the month of Janaury.

Publications Committee Edwin S. Hopson, Chair, Louisville Paul Alley, Florence Mindy Barfield, Lexington Gregory M. Bartlett, Covington Sandra A. Bolin, Berea Michael A. Breen, Bowling Green Beverly M. Burden, Lexington Christopher S. Burnside, Louisville Frances Catron-Malone, Frankfort David C. Condon, Owensboro P. Franklin Heaberlin, Prestonsburg Sheryl E. Heeter, Newport Judith B. Hoge, Louisville Susan H. Kosse, Louisville Edna M. Lowery, Frankfort Theodore T. Myre, Jr., Louisville Eileen M. O’Brien, Lexington CONTENTS Brian K. Pack, Glasgow Sandra J. Reeves, Corbin E.P. Barlow Ropp, Glasgow Candace J. Smith, Covington LEGAL MALPRACTICE E. Frederick Straub, Jr., Paducah Gerald R. Toner, Louisville John A. West, Covington 5 Lawyer Regulation and the Movement Toward Michele M. Whittington, Frankfort A Unified Bar in Kentucky By Jane H. Herrick Publisher Bruce K. Davis 11 Legal Malpractice in Kentucky By Del O’Roark & Pete Gullett Editor Edwin S. Hopson 19 Legal Malpractice Primer By O. Daniel Wolff Managing Editor Barbara L. Thomas Departments The Bench & Bar (ISSN-1521-6497) is 3 President’s Page By Robert C. Ewald published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 24 Hot Topic Partnership and Limited Partnership Acts - Part I KY 40601-1812. Periodicals Postage paid at By Dean Allan W. Vestal & Thomas E. Rutledge Frankfort, KY and additional mailing offices. All manuscripts for publication should be 29 Book Review By Sheryl G. Snyder sent to the Managing Editor. Permission is granted for reproduction with credit. 30 Effective Legal Writing By Barbara McFarland Publication of any article or statement is not 33 Shop Talk By Michael Losavio to be deemed an endorsement of the views expressed therein by the Kentucky Bar 35 Proposed Amended Regulations Association. Subscription Price: $20 per year. Members of the Attorneys’ Advertising Commission subscription is included in annual dues and is 37 Notice of Proposed Revision to LR 40.1 not less than 50% of the lowest subscription price paid by subscribers. For more informa- of the Joint Local Rules of the Federal District tion, call 502-564-3795. Courts in Kentucky POSTMASTER 38 CLE Send address changes to: Bench & Bar 43 Kentucky Bar News 514 West Main Street 46 Who, What, When & Where Frankfort, KY 40601-1812 Cover photo by James Archambeault PRESIDENT’S PAGE

Robert C. Ewald

suspect few KBA ers involve tenants seek- • Develop a statewide recruitment members are aware ing decent living condi- campaign; Ithat two dollars of tions, consumers fighting your dues each year go fraud or extortion, fami- • Identify and implement strategies to to the Donated Legal lies seeing healthcare or increase legal services to this under- Services Fund, a fund public assistance, served population through pro bono established and held sepa- employees and others advocacy; rately for use solely to fighting discrimination, encourage and assist attor- and parents fighting for • Enhance training opportunities and neys in participating in adequate education for materials for volunteer lawyers; pro bono projects and the their children. representation of those in Over the years, the two • Assist in programs in obtaining addi- need of counsel and dollars that have gone to tional financial resources to support unable to afford a lawyer. Robert C. Ewald the Donated Legal Ser- pro bono activities in the regional On the annual form vices Fund has built up to and local programs; and containing your dues statement is a line a substantial amount. At the same time, seeking information about the hours a need to develop statewide coordina- • Create recognition activities for spent on pro bono matters. Last year tion to raise awareness of the crucial participating law firms and attorneys. 2,411 lawyers submitted information in need for volunteer lawyers to assist low that space. However, I find it hard to income individuals with civil legal KVLP has identified a campaign believe that last year only 2,411 of us problems became increasingly obvious. theme, “Change the World in 50 spent time and effort on matters for Recognizing a unique opportunity to Hours,” recognizing the goal adopted in which we never expected payment. establish a method to provide the oppor- 1990 by the Kentucky Supreme Court in Rather, I believe the great majority of us tunity for lawyers to participate in pro SCR 3.130(6.1) and by the American donated our services to worthy causes bono activity, a grant of $200,000 was Bar Association that every attorney and merely failed to record the time made by the Board of Governors to help should participate in 50 hours of pro spent. We gave our time because we fund a three year project aimed a creat- bono activities each year. A partnership found it the right thing to do and not ing such a statewide program. has already been established with the because we were seeking recognition. As a result, the Kentucky KBA Young Lawyers section to develop Indeed, I believe most of us endorse the Volunteer Lawyers Pro- statewide training programs for importance of pro bono participation gram (KVLP) was estab- domestic relations practice as a pro and will do so given the appropriate lished in association bono recruitment tool. In addition, with the Kentucky &KDQJH an upcoming issue of the Bench opportunity. WKH:RUOG Most of us are aware that various Access to Justice Foun- LQ & Bar will be devoted to pro legal services programs exist in Ken- dation and the four KRXUV bono activities. tucky, including four regional programs regional legal assistance  The KBA, with the support and funded partially by federal government programs. Tamra Gormley, approval of the Kentucky Supreme money through the Legal Services Cor- a Versailles attorney, was Court, has for many years recognized poration. Despite the existence of these selected to direct the program. In recent the importance of pro bono participation and other organized programs, only 20 meetings with the KVLP staff, I have by every Kentucky lawyer. One of the percent of the individuals who qualify been enormously impressed with their goals of the Kentucky Volunteer for assistance in civil legal matters are dedication, energy and ingenious ideas Lawyers Program is to make your being served. In other words, more than for various projects to give every attor- involvement as easy as possible. Over 80 per cent of eligible Kentuckians in ney in Kentucky the opportunity to the next few months, you will receive need of legal assistance never get the serve and participate in a variety of pro more information about this program help needed. bono projects. and the opportunities to become The situations in which the poor are With the goal of improving access to involved. I urge you to do so. We need left unrepresented involved the most the judicial system for low income Ken- your cooperation to implement the Ken- pressing of human problems. One in six tuckians with civil legal needs, the Ken- tucky Volunteer Lawyers Program and cases involves domestic violence. Oth- tucky Volunteer Lawyers Program will: make it work. ■

January 2007 Bench & Bar 3 LostLost in in the the shuffle? shuffle?

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rior to the 1934 State Bar Act,1 two Pmethods existed in Kentucky to pro- ceed against an attorney’s license. In the Lawyer Regulation first, a circuit court issued a rule against an attorney to show cause why he should not be disbarred for alleged unethical and the Movement Toward conduct.2 The rule was issued in the name of the Commonwealth, upon infor- A Unified Bar in Kentucky mation from the Commonwealth’s Attor- ney; in the name of a client; or sua sponte by the court itself.3 The other method was a statutory action against an attorney accused of wrongfully withhold- “The Kentucky Bar Association,” its Association’s goals were taken almost ing client funds after a demand. If found object “to advance the science of verbatim from the 1882 constitution.23 guilty, the attorney was suspended from jurisprudence, promote the administration Reflecting the group’s interest in legal practice for one year and until the money of justice, uphold the honor of the profes- reform, the constitution created a “Com- was remitted to the client.4 Thus, attorney sion of the law, and encourage cordial mittee on Law Reform.”24 A main con- discipline was subject to local judges, intercourse among the members of the cern at the meeting was how new lawyers local efforts, and local standards. Kentucky Bar.”10 Committees “On Griev- were admitted to the bar.25 As a result, the Early state bar leaders realized the ances” and on “Legal Education and Bar Association’s constitution created a need for improved lawyer regulation as a Admissions” were formed.11 Papers were “Committee on Legal Education and result of their own frustrated attempts to presented,12 and the meeting concluded Admissions to the Bar” and a “Commit- raise practice standards. As a result, a with a banquet at the Galt House.13 tee on Grievances.” The latter was small voluntary group of lawyers inter- The organization met in the succeed- required to “receive the complaints…in ested in limited legal reforms evolved ing two years14 but by 1884 interest had matters affecting the interests of the legal into a professional, well-organized asso- waned. The 1884 records counted 232 profession, the practice of the law and the ciation that actively campaigned for association members, but “only 84 had administration of justice and report the statutory bar integration. paid their dues[.]”15 At the 1884 meeting, same to the Association with such recom- a site was selected for the 1885 annual mendations as it may deem advisable.”26 Fits and Starts: 1871 and 1882-1884 meeting. That meeting never took place, By the next year, the Association was The first attempt to form a lawyers’ and the association “was unfortunately already grappling with lawyer regulation organization occurred in 1871, when an allowed to die.”16 issues.27 Having no power to broadly reg- unknown number of lawyers met in ulate the profession, the Association Louisville sometime between June and Revival approved an amendment providing that December. The gathering’s purpose was In January 1900, Louisville lawyers an Association member could be “repri- to promote changing the law to overturn organized the Louisville Bar Associa- manded, suspended or expelled” for mis- the holding in a recent case,5 Bowlin v. tion,17 and in February 1901, the Kenton conduct.28 However, the Committee on Commonwealth,6 which held a black man County bar was formed.18 By summer Grievances presented a report aspiring to incompetent to testify against a white. 1901, these two groups started communi- focus its efforts “mainly at disorders out- The effort was successful: at the next leg- cating about forming a state organiza- side of this organization, which this islative session, the General Assembly tion.19 An organizational meeting was organization was designed to reform or amended the law.7 The means by which held on November 19, 1901, in suppress.”29 Therefore, the Committee the legislature was influenced are not Louisville,20 where the Louisville Bar proposed adopting a “Code of Legal mentioned in the meeting records. Association president confidently greeted Ethics” to reflect the trend in other juris- Ten years passed before another attendees but acknowledged earlier fail- dictions.30 statewide organizational attempt. In April ures: “[We] have called this meeting in The issue of a Code of Ethics was 1882, another group of attorneys gathered the hope that a useful and permanent State referred to the Committee on Law Reform in Louisville. The group elected officers, association may be established. We have for a report at the next meeting.31 The set dues, and created a committee to draft not forgotten the wrecks of the past.”21 Association also approved draft legislation a constitution and by-laws,8 which were The group drafted a constitution and revising the method by which attorneys adopted at the first annual meeting, June by-laws, largely based on the 1882 docu- were admitted to practice law. The pro- 22-23, 1882, also in Louisville.9 These ments. This new organization, perhaps posal invested the Court of Appeals with documents formed the first attempt at attempting to distinguish itself from the power to appoint a five-member “Board self-government of an organized bar in early 1880s group, named itself the “Ken- of Law Examiners.” The examiners would Kentucky. The organization called itself tucky State Bar Association.”22 The new be empowered to test applicants in writing

January 2007 Bench & Bar 5 on seventeen subjects.32 various attempts to get an admissions Seeking Authority In 1903,33 the Association adopted an bill passed.40 The General Assembly By 1912, the Association had investi- ethics code without objection.34 The finally passed an admissions reform law gated a non-member for solicitation. Chair of the Grievance Committee, in 1918.41 However, solicitation was legal and the arguing in favor of the code, reported During these early years, the Associa- Investigating Committee could take no that a “Code of Legal Ethics” was not tion struggled with how to implement enforcement action.51 The Investigating novel. He noted the Code was based on higher professional standards. It realized Committee realized that “members of the codes of other states, and primarily as early as 1902 that it lacked power to bar, not belonging to this Association, are upon an influential mid-nineteenth cen- discipline non-members. Only the courts amenable to no rules of conduct, except tury essay by Judge George Sharswood could disbar or suspend. Despite obvious as may be in direct violation of the of Pennsylvania.35 The Code contained jurisdictional limitations, the Association law.”52 The Committee put the best face fifty-five provisions, filled with continued to take action in attempts to on its disciplinary impotence, concluding “oughts” and “shoulds.”36 raise the professional standards of the that “the investigation of [the non-mem- Over the next several years, the Asso- entire bar. In 1905, the constitution was ber’s] conduct has taught him a whole- ciation busied itself with legal reform amended upon suggestion of the Griev- some lesson.”53 efforts, and enjoyed some quick success. ance Committee to create an “Investigat- The Investigating Committee therefore By the 1904 meeting, the Association had ing Committee.”42 This committee’s recommended the Association “take successfully promoted reform regarding duty was to investigate violations of the prompt and vigorous steps to secure the publication of the opinions of the Court Code of Ethics and file charges and passage of a law regulating the disbar- of Appeals and the subpoenaing of wit- prosecute the charges before the Griev- ment of attorneys for dishonorable and nesses by judges.37 ance Committee.43 unprofessional conduct.” The report was Beginning in 1904, the Association The Investigating Committee was the approved,54 but the Investigating and repeatedly attempted to have a law first body in Kentucky with the specific Trial Committees’ subsequent yearly enacted tightening admissions proce- role of determining if an ethical com- reports provide little information about dures and standards. In March 1902, plaint had sufficient merit to warrant a efforts to secure bar-wide application of the legislature adopted a statute on formal hearing. The Committee realized an ethics code. admission to practice, but that law omit- its limitations: “[W]e have adopted a Over a decade passed before the first ted a board of examiners, a provision Code of Ethics, but, unless some means hint of momentum toward a unified bar sought by the Association. The statute are devised for bringing offenders before in Kentucky. At the 1925 annual meeting, retained the old system of testing by a the bar of the Association, the code will the Chair of the Committee on Legal circuit judge.38 The 1904 legislature con- practically become a ‘dead letter.’”44 Education and Admission proposed an sidered an admissions reform bill based In 1908, the Association changed the integrated bar.55 The fiscal benefit of a upon the bar’s proposals, but it died in name of the Grievance Committee to the unified bar became apparent after the committee.39 Over the course of the next “Trial Committee.”45 The Investigating Treasurer’s report. The Association had fourteen years, the Association made Committee rejected the roles of investi- spent more money in the past year than it gator, grand jury, and prosecutor.46 How- had collected.56 Of the Association’s 718 57 Jane H. Herrick is ever, the Investigating Committee want- members, only 435 had paid dues. A Assistant Director ed more power, and sought to expand its discussion on Association management for Continuing investigative authority and the Trial and how to increase membership ensued. Legal Education for Committee’s review authority to include Early in the discussion, a judge said: 47 the Kentucky Bar non-members. [T]he State Bar Association is Association. From This expansion of scrutiny was not the power that it ought to be 1996 to 2004, Ms. opposed; it prompted one judge to in the State of Kentucky. There Herrick served as remark: “It is bad enough for a local bar are thirty-five hundred lawyers in Deputy Bar Counsel for the Kentucky association to practically become a con- Kentucky—active lawyers. There Bar Association. She received her spiracy for the enforcement of the crimi- are 718 who are members of the B.A., cum laude, from Centre College nal laws. We have sworn Common- [Association]. Of that member- in 1990. In 1993, Ms. Herrick earned wealth’s attorneys whose duty it is to ship, four hundred and some odd 48 her J.D., with distinction, from the prosecute offenses of this sort.” The pay dues, and of that membership University of Kentucky College of Investigating Committee Chair responded less than a hundred attend the Law where she served as a staff mem- that limiting the Committee’s oversight to meetings of the Association. That ber of the Kentucky Law Journal from only members “so limits the power of the has been true a long time. That 1991-1993. Upon graduation from Committee on Investigation that it can being true, does it not suggest… 49 UK, Ms. Herrick served as a law clerk not adequately perform its function.” that there must be something for Fayette Circuit Judge (now former The Association approved the Commit- inherently wrong with our plan of Kentucky Supreme Court Justice) tee’s recommended expansion of authori- organization or methods of opera- 50 58 James E. Keller. ty over the objections. tion and management [?]

6 Bench & Bar January 2007 Association secretary J. Verser Conner admitted to practice. the Committees’ powerlessness. addressed this concern. He noted that The Legislature may prescribe Unlike in prior years, the 1931 Investi- Kentucky’s situation was not “peculiar” qualifications and may make reg- gation Committee’s report provided more and that the only states to have solved ulations for the admission of per- detail than usual, but it also exposed a this problem had statutes creating a uni- sons to practice law and for their serious problem with the disciplinary sys- fied or integrated bar.59 Another judge conduct as attorneys at law after tem. The Committee had received a com- approved this approach, advocating the being so admitted. plaint about an attorney who had failed to Association be “chartered” by the Gener- The Courts have inherent remit less than $100.00 to a client. This al Assembly.60 After additional discus- power to regulate the conduct of Association non-member ignored the sion, the group created a committee to attorneys at law which can not Committee’s letters, and the Committee examine the “advisability of seeking to be taken from them and may referred the matter to the local Common- make this a self-governing bar.”61 exercise such power so far as wealth’s Attorney. However, the respon- may be necessary to the proper dent attorney was that Commonwealth’s Sentiment for Change performance of their Attorney. The report observed that “local and Legislative Failures By 1926, the Association’s interest had increased in an integrated bar bill. A keynote speaker at the annual convention “[I]f you do not resort to organization of the bar in Kentucky was Henry Upson Sims of the Alabama Bar Association, later president of the to solve the problems of the bar, you will eventually adopt American Bar Association.62 Alabama implemented an integrated some violent expedient of reducing the number of lawyers, bar in 1923, and Mr. Sims reported that Alabama’s act was based upon a model like knocking every third lawyer in the head.” 64 act drafted by the American Judicature Society.63 Mr. Sims endorsed Kentucky’s progress toward a similar goal: “[I]f you do not resort to organization of the bar in functions[.]69 conditions furnish no other means of giv- Kentucky to solve the problems of the The Association created another com- ing the matter attention” and it was bar, you will eventually adopt some vio- mittee to promote enactment of the bill “rather humiliating to the Association to lent expedient of reducing the number of by the Legislature.70 This bill died in the have to acknowledge itself unable to take lawyers, like knocking every third lawyer 1928 legislature.71 The main objection any effective action.”77 in the head.” 64 was also its main objective: mandatory The Association’s efforts to pass a bar By the 1926 annual meeting, the membership in the association for all integration bill were followed outside “Committee to Devise Means for Improv- Kentucky lawyers. At the 1928 Annual the organization. As early as 1929, the ing and Extending the Work of the Asso- Meeting, the Association authorized the Louisville Courier-Journal supported a ciation”65 had drafted a proposed bar Committee to continue its work toward unified bar. The newspaper observed integration act, based upon Alabama’s passage of a bill.72 that opposition to the bill would “likely law.66 The proposed bill was not present- In 1930, versions of the bill passed the arise from within the unprofessional ele- ed to the legislature because the draft had House and Senate, but upon submission ment of the profession,” and it was “too not been adequately studied by the mem- of the House version to the Senate, an much to expect to arouse public support bership.67 The report was accepted by the allegation arose “that a majority of the for the effort.”78 The Courier understood Association, with the Committee directed lawyers of the State were not in favor of the difficulty in disciplining or disbar- to continue its study of the issue.68 the bill.” The allegation was denied, but ring a lawyer: At the 1927 meeting, the Committee the damage had been done. The Senate [W]hen a lawyer is disbarred presented another draft bill. The chair tabled the bill and did not reconsider it.73 he is proven guilty [by] the same explained that the “[f]our fundamental The measure was presented to the legisla- degree of certainty required to principles underl[ying] all legislation of ture again in 1932 and met defeat in the convict any person of a crime. this character” were: Senate after passage in the House. An That may curb the grosser The right to practice law is attorney led the opposition to the bill.74 offenses, but it doesn’t elevate neither a natural nor common The records of the Trial and Investiga- standards of conduct. law nor a constitutional right. tion Committees during this period reveal An elective judiciary cannot be An attorney at law is an offi- little movement on ethical issues. Corre- depended upon to exact scrupu- cer of the Court, wherein he spondence resolved many complaints lous regard for the niceties of pro- practices, subject to the control informally;75 others were not considered fessional ethics from lawyers who of the Court, and is, also, a quasi for lack of verification.76 These short and hook in their practice with local officer of the State wherein he is uninformative reports are indicative of politics and the underworld…The

January 2007 Bench & Bar 7 object is not summarily to reduce the legislature unconstitutionally delegat- Monroe 376) (1857). This case the number of lawyers, but to put ed its power to the Court. The Court may be the oldest published an end to practices which militate rejected the argument, confirming its “lawyer discipline” case in Ken- against justice.79 inherent power to discipline: tucky. In this case, a lawyer was Reporting the 1930 bill’s defeat, the To [declare the system uncon- found guilty of altering a document newspaper criticized the profession’s stitutional] would result in an and was disbarred. ongoing inability to self-regulate: absolute denial of any inherent 3. See, e.g., Duffin v. Commonwealth, There is no bar as an entity power whatever in courts to pre- 208 Ky. 452, 271 S.W. 555 (1925); which can command the support scribe and adopt any method of Denny v. Commonwealth, 175 Ky. of lawyers…[T]here are more procedure in conducting inquiries 357, 194 S.W. 330 (1917); In re lawyers than can earn a legiti- of the nature here involved in McDonald, 157 Ky. 92, 162 S.W. mate livelihood by ethical meth- order to discover whether…any 566 (1914). ods…Practical standards conse- of the parts of its machinery has 4. See, e.g., Bonner v. Goodloe, 205 quently are whatever one can get become in anywise contaminat- Ky. 555, 266 S.W. 62 (1924); Duffin away with…Standards of the bar ed. Therefore, if the Legislature v. Commonwealth, 208 Ky. 452, 271 as a whole can be elevated… should for any cause fail to do S.W. 555 (1925); Denny v. Common- only by the best influences with- so, the court would be paralyzed wealth, 175 Ky. 357, 194 S.W. 330 in the bar itself, and this cannot and helpless to remedy its threat- (1917). be accomplished through moral ened destruction.86 5. Constitution, By-Laws, Roll of Mem- persuasion or example. The bar bers and Proceedings of the Ken- must be empowered to establish Legacy tucky State Bar Association at Its and enforce its own standards of The 1934 bar integration act marked a Organizational Meeting Held in professional conduct upon the new era of lawyer discipline in Kentucky. Louisville, Kentucky, November the derelict.80 For the first time, all Kentucky lawyers Nineteenth, Nineteen Hundred and After the bill’s 1932 defeat, the news- became subject to a specified code of One, Together with a Resume of the paper noted that lawyers again killed the conduct, and answerable directly to the History of the First State Bar Associ- bill. Once more disparaging the high highest court in the Commonwealth. No ation, 1881-1884; and Facts Lead- standard of proof required to discipline, longer was discipline dependent upon ing up to the Formation of the Pre- the newspaper observed that proceedings courts choosing to take action against sent Kentucky State Bar Association, were before an elected judge “in a district attorneys, based upon whatever informa- prepared by Edward J. McDermott in which the accused more often than not tion was presented by a local group of at the Request of the Association, 5-6 is a better politician than he is a attorneys or a Commonwealth’s Attorney. (June 1910) (hereafter, “McDer- lawyer.”81 The newspaper strongly In 1974, voters approved a constitu- mott”). endorsed a unified bar: “Nothing but the tional amendment creating the Supreme 6. 2 Bush 5 (1867). bar…can correct the evil; and nothing but Court of Kentucky and investing it with 7. 1871 Ky. Acts, Ch. 139, § 7; McDer- an organized bar…can improve the sys- exclusive constitutional authority over mott at 7: “Thus was removed anoth- tem of justice[.] The bar should be given lawyer regulation.87 This authority has er unreasonable barrier that helped to the power[.]”82 been delegated to the Kentucky Bar keep some light from the courts, Association as the Court’s sole agency for though the courts need all the light Unification: The Beginning of lawyer discipline.88 Lawyer regulation in they can get. Other barriers, main- Modern Lawyer Regulation in Kentucky Kentucky had been transformed from tained on plausible but unsound rea- In 1934, the General Assembly passed scattered circuit court proceedings into a soning, still remain.” The means, if a “skeleton” form of a bar integration bill. constitutionally-recognized power vested any, by which the legislature was The law delegated regulatory power over completely in the Supreme Court. lobbied or influenced are not men- the bar to the Court of Appeals, along The Kentucky legal professional owes tioned. with specific rule-making authority.83 By its legacy of self-regulation to those far- 8. Report of the First Annual Meeting June 1934, the Court had approved rules sighted attorneys of almost a century ago of the Kentucky Bar Association held outlining bar governance by a Board of who led the movement toward an inte- at Louisville, Kentucky, June 22 and Governors and a disciplinary system.84 grated bar. ■ 23, 1882 (Louisville, 1882), 2-4. The Courier-Journal lauded the result: 9. Ibid., 18. “That the bar…will aid the court in estab- ENDNOTES 10. Ibid., 99. lishing those standards can be taken for 11. Ibid., 99. granted. The destiny of the Kentucky bar 1. Chapter 8, § 101-1, Carroll’s Ken- 12. Ibid., 18; 33; 46; 53; 68; 74; 93. at last is in the hands of the lawyers.”84 tucky Statutes Annotated (Baldwin’s 13. These lawyers knew how to have a A legal challenge quickly developed. 1936 Revision). good time. According to the Trea- An attorney subjected to disciplinary pro- 2. For an early example, see Rice v. surer’s Account, the group spent ceedings in the new system argued that Commonwealth, 57 Ky. 472 (472 B. $40.00 on cigars ($10.00 for cigars

8 Bench & Bar January 2007 at the banquet alone). The menu may be prescribed by the by- 38. 1902 Ky. Acts, Ch. 17, §§ 1-9. items sounded delectable: broiled laws…The disbarment of any mem- 39. Ibid., 23; 27. blue fish, fillet of beef aux ber shall, ipso facto, work his expul- 40. Ibid., 27-29; see generally Proceed- champignons, lamb chops, lobster sion from the Association. Rein- ings of the Seventh Annual Meeting salad, and wines. Ibid., 95, 98. statement to practice shall not rein- of the Kentucky State Bar Associa- 14. McDermott at 15; 27. state to membership, unless by a tion held at Louisville, Kentucky, 15. Ibid., 27. vote of the Association upon recom- July 8 and 9, 1908 (Louisville, 16. Crab Orchard Springs in eastern Lin- mendation of the Committee on 1908); Proceedings of the Ninth coln County was to have been the Membership.” Ibid., 236. Annual Meeting of the Kentucky site of the 1885 meeting. McDermott 29. Ibid., 99. State Bar Association held at Mid- at 27-28. 30. Ibid., 95-96. dlesboro, Kentucky, July 12, 13, 14 17. Ibid., 28. 31. Ibid., 160-161. (Caron Press, 1910), 169-171; Pro- 18. Ibid. 32. Ibid., 36-37. ceedings of the Fourteenth Annual 19. Ibid., 29. 33. Proceedings of the Second Annual Meeting of the Kentucky State Bar 20. Ibid., 30. Meeting of the Kentucky State Bar Association held at Frankfort, Ken- 21. Ibid., 37. Association Held at Owensboro, tucky, July 8 and 9, 1915 (Louisville, 22. Ibid., 96. Kentucky, July 2 and 3, 1903 1915), 180. 23. “This Association is formed to (Louisville, 1903). 41. 1918 Ky. Acts, Ch. 131, §§ 1-12. advance the science of jurisprudence, 34. Ibid., 48. 42. Proceedings of the Fourth Annual to promote reform in the law, to 35. Ibid., 25-26. See generally Shar- Meeting of the Kentucky State Bar facilitate the administration of jus- swood, An Essay on Professional Association held at Covington, Ken- tice, to uphold integrity, honor and Ethics (1854). tucky, June 22 and 23, 1905 courtesy in the legal profession, to 36. 1903 Proceedings, 35-47. (Louisville, 1905), 25; 27; 180. encourage thorough liberal legal 37. Proceedings of the Third Annual 43. Ibid., 170. education and cordial intercourse Meeting of the Kentucky State Bar 44. Ibid., 25. among members of the bar.” Ibid. Association held at Louisville, Ken- 45. 1908 Proceedings, 83. 24. Mr. McDermott stated: “The Legis- tucky, June 23-24, 1904 (Louisville, 46. Ibid. lature is about to meet. Whatever 1904), 12-13. 47. Ibid., 83-86. The Trial Committee’s we want must be presented at once; and surely we ought to be able to do something to elevate the bar and to help the bench and to benefit the people. The main business of the State is to preserve order and to administer justice; and yet that func- tion of our government is not per- formed as it should be. If we do our duty we can surely bring about long- needed reforms and with the thanks of the public, while giving power and dignity to our calling.” Ibid., 39. 25. Ibid., 38. 26. Ibid., 99. The proceedings were to be confidential. 27. The official report of this meeting called it the “First Annual Meeting of the Kentucky State Bar Association.” Proceedings of the First Annual Meeting of the Kentucky State Bar Association (Louisville, 1902). 28. Ibid., 159. The amendment created a subsection (2) to Article X: “Any member of the Association may be reprimanded, suspended or expelled for misconduct in his relations to this Association or in his profession, on conviction thereof in such manner as

January 2007 Bench & Bar 9 authority was to “determine [if] an Annual Meeting of the Kentucky 76. See, e.g., 1929 Proceedings, 32. offense worthy of prosecution has State Bar Association held at Frank- 77. Ibid., 250. This example is particu- been committed, [and] they may fort, Kentucky, April 8 and 9, 1926 larly egregious because perhaps the order the Committee on Investigation (Louisville, 1926), 97. The act as only meaningful way to discipline to institute and carry on legal pro- described contained elements still the attorney, through criminal prose- ceedings against any person practic- found in Kentucky’s rules on lawyer cution, was unavailable. ing law or engaged in any way in the regulation. For example, Mr. Sims 78. “The Bar Intends to Act,” Louisville administration of the law who may be stated that the Alabama Bar was Courier-Journal, August 15, 1929, charged with misconduct, whether the governed by twenty-one elected Section 1, p. 6, column 2. offender be a member of the Associa- council members, one from each cir- 79. Ibid. tion or not.” The Investigating Com- cuit. Under SCR 3.080, lawyers 80. “The Practice of Law,” Louisville mittee’s authority was stated as fol- from each of Kentucky’s seven Courier-Journal, January 24, 1931, lows: “It shall be the duty of the Supreme Court districts elect two Section 1, p. 6, column 2. Committee on Investigation to inves- members of the Board of Governors. 81. “The Bar Must Help Itself,” tigate all infractions and breaches of 64. Ibid., 101. Louisville Courier-Journal, April 9, the Code of Ethics of the Association 65. Harry B. Mackoy of Covington 1932, Section 1, p.6, columns 2-3. by members thereof and any and all chaired this group. Ibid., 263. 82. Ibid. charges of misconduct or of illegal 66. Ibid., 264. 83. Proceedings of the Thirty-Third acts against any person practicing law 67. Ibid., 276-277. Annual Meeting of the Kentucky or engaged in the administration of 68. Ibid., 278-279. State Bar Association held at Lex- law in Kentucky, which may be pre- 69. Proceedings of the Twenty-Sixth ington, Kentucky, July 5 and 6, 1934 sented to any member of the commit- Annual Meeting of the Kentucky (Lexington, 1934), 53. tee, or may come to his knowledge State Bar Association held at 84. Ibid., 53-54; “Rules for Bar Given from direct information or otherwise, Louisville, Kentucky April 6 and 7, by Court of Appeals,” Louisville and all complaints which may be 1927 (Louisville, 1927), 22. Courier-Journal, June 27, 1934, Sec- made in matters respecting the inter- 70. Ibid., 147-148. tion 1, page 12, column 5. est of the legal profession, the prac- 71. The bill was not brought to the floor 85. “The State Bar,” Louisville Courier- tice of law, and the administration of of the House for a vote. Proceedings Journal, June 29, 1934, Section 1, p. justice.” Ibid., 84-85. of the Twenty-Seventh Annual Meeting 6, column 1. The bar realized it was 48. Ibid., 87 (comment of Judge Sey- of the Kentucky State Bar Association a new age, too. In 1935, the record mour). held at Lexington, Kentucky, April 5 of the annual meeting was described 49. Ibid., 89. and 6, 1928 (Louisville, 1928), 26. as “Proceedings of the First Annual 50. Ibid., 91. 72. Ibid., 32. The legislature did not Meeting of the Kentucky State Bar 51. Proceedings of the Eleventh Annual meet in 1929, so the Committee Association.” Proceedings of the Meeting of the Kentucky State Bar directed its efforts to building sup- First Annual Meeting of the Ken- Association held at Louisville, Ken- port for the bill. The Committee’s tucky State Bar Association (1935). tucky, on July 10 and 11, 1912 (Hen- report recommended that local sup- 86. Commonwealth ex rel. Ward v. Har- derson, Kentucky, 1912), 205. port in each appellate district be rington, 266 Ky. 41, 98 S.W.2d 53, 52. Ibid., 206. organized prior to the January 1930 58 (1936). This conclusion echoed 53. Ibid. legislative session. The report was the court’s rationale in Rice v. Com- 54. Ibid., 207. adopted. Proceedings of the Twenty- monwealth, 57 Ky. 472, 472 Monroe 55. Proceedings of the Twenty-Fourth Eighth Annual Meeting of the Ken- 376 (1857), perhaps the earliest Annual Meeting of the Kentucky tucky State Bar Association, held at reported “lawyer discipline” case in State Bar Association held at Bowl- Frankfort, Kentucky, April 4 and 5, Kentucky. In that matter, the lawyer, ing Green, Kentucky, July 1 and 2, 1929 (Louisville, 1929), 39. disbarred by the circuit court, 1925 (Louisville, 1925), 111-112. 73. Proceedings of the Twenty-Ninth appealed to the Court of Appeals. 56. Ibid., 142. Annual Meeting of the Kentucky The Court upheld the court’s power 57. Ibid. State Bar Association, held at Padu- to regulate: “All courts have the 58. Ibid., 144 (comments of Judge M.M. cah, Kentucky, April 10 and 11, 1930 power to control and regulate, to a Logan). (Louisville, 1930), 17-18. certain extent the conduct of their 59. Ibid., 148. 74. Proceedings of the Thirty-First officers, and to inflict on them for 60. Ibid., 154. Annual Meeting of the Kentucky the official misconduct such punish- 61. Ibid., 155. State Bar Association, held at ment as the law prescribes.” 62. American Bar Association 2001- Louisville, Kentucky, April 7 and 8, 87. 1974 Ky. Acts, Ch. 84, §1. 2002 Leadership Directory (Chica- 1932 (Lexington, 1932) 60. 88. SCR 3.025. go, 2001), 355. 75. See, e.g., 1926 Proceedings, 164; 63. Proceedings of the Twenty-Fifth 1929 Proceedings, 32.

10 Bench & Bar January 2007 By Del O’Roark & Pete Gullett What do we know about it? Background The first thing we know about legal malpractice in Kentucky is that histori- cally there is not much of a track record Legal Malpractice in Kentucky available to examine. This is true in part because it was not until about 1970 that legal malpractice claims became a signif- icant daily consideration in the practice of law in the United States. Beginning in the early ‘70s, malpractice claims against lawyers exploded changing the practice ing. Lawyers Mutual was an active participant in these studies. environment forever. Malpractice insurance became a necessary This article compares selected statistics from the ABA’s “Pro- and often expensive cost of doing business. Risk management file of Legal Malpractice Claims 2000-2003” (hereinafter ABA became an essential part of managing a law firm to minimize 2003) with Lawyers Mutual’s claims statistics to enable Ken- this growing hazard of practicing law. Legal malpractice was tucky lawyers to see where the major malpractice risks are both suddenly the elephant in the room that could ruin professional nationally and locally. The limitations on these statistics are that relationships and destroy firms. the ABA study methodology has evolved over the years as has Adding to the fog of what was going on with legal malprac- Lawyers Mutual’s statistics collection procedures making com- tice in the nation and in Kentucky in those days is the policy of parisons among the studies imperfect. It is also significant that most commercial insurers to treat claims experience as propri- the information in recent ABA studies is based heavily on bar- etary information. This is a legitimate practice, but made it vir- related insurance company experience. These insurers primarily tually impossible to tell what the magnitude of legal malpractice insure small firms (2-5) and solo practitioners. was in a given state. The anomaly in analyzing legal malprac- While these and other factors diminish the overall usefulness tice for the purpose of preventing claims is that the great majori- of the ABA studies, they remain valuable in developing a ty of claims are resolved by insurance companies – not the national profile of malpractice trends that is a valid benchmark courts. The best information on what is going on in legal mal- from which to compare Kentucky’s claims experience.i The practice and how to prevent it is generally not available to the idea is to use the available statistics as indications of where the public. In Kentucky we could not tell in the ‘70s and ‘80s risks are and allow lawyers to focus risk management programs whether the ever increasing insurance premiums for Kentucky on those risks most applicable to their practice. lawyers were because of bad experience in Kentucky or The studies and claims statistics cited in this article do not whether, as suspected, Kentucky lawyers were subsidizing the identify good and bad lawyers or areas of practice. They show payment of malpractice claims against lawyers in other states – only where the claims are occurring. These studies do not and the companies then insuring Kentucky lawyers would not include demographic data such as the number of lawyers prac- help answering this question when asked by the KBA. ticing in an area of law or the amount of overall lawyer time In response to this dilemma in the 1980s lawyers in a number spent in an area of law or practice activity. Most important to of state bars sponsored the formation of bar-related insurance remember is that overall Kentucky lawyers provide a high qual- companies to provide malpractice insurance and risk manage- ity service to the clients they represent. This article necessarily ment education exclusively for their state. The KBA joined in centers on alleged errors by the small percentage of Kentucky this movement in the mid-‘80s resulting in the formation of lawyers who through neglect or bad luck are exposed to a claim Lawyers Mutual Insurance Company of Kentucky which of malpractice in a given year. opened for business in November 1987. Its purpose is to pro- Included in the article along with the statistics are observa- vide a competitive insurance market for Kentucky lawyers tions on trends from the limited, but growing, amount of knowl- based on Kentucky malpractice experience and use this experi- edge we have on legal malpractice in Kentucky. Finally, the arti- ence to foster claims prevention by assisting Kentucky lawyers cle offers a recently developed Risk Management Analysis in developing risk management programs. checklist that is recommended for use in evaluating errors occur- At the national level the ABA in an effort to come to grips ring in your practice for the purpose of identifying the causes of with the problem of increasing legal malpractice claims pub- errors and the corrective actions required to prevent recurrence. lished its first study of national legal malpractice claims statistics in 1985. It published further studies in 1995, 1999, and in April What the Statistics Show 2005 issued “Profile of Legal Malpractice Claims 2000-2003” The statistics displayed in this article are a helpful guide in that recapitulates the results of all studies through 2003. The identifying hazards relevant to the practice of law in Kentucky. more recent studies are based primarily on input from bar-related We have selected the following framework for analyzing mal- insurance companies with a few commercial insurers participat- practice claims for this purpose:

January 2007 Bench & Bar 11 Table 1: Percentage of Claims by Area of Law 1990-95 1990-95 1996-99 1996-99 2000-03 2000-2006 All Years ABA % KY % ABA % KY % ABA % KY % KY % Collection & Bankruptcy 7.91 7.89 8 12.17 7.92 11.5 11.21 Corp./Business Org.& Transactions 19.53 5.78 12.19 2.22 9.55 3.35 3.69 Criminal Law 3.82 4.56 4.15 4.63 4.19 2.26 3.56 Estate, Trust & Probate 7.59 6.49 8.67 9.26 8.63 8.42 8.13 Family Law 9.13 8.59 10.13 5.66 9.58 6.06 6.65 Labor Law 1.41 1.22 2.22 3.6 1.55 2.53 2.65 Personal Injury-Plaintiff 21.65 18.42 24.6 20.41 19.96 25.81 22.95 Personal Injury-Defense 3.27 2.28 4.1 3.43 9.96 1.99 2.43 Real estate 14.35 14.38 16.97 15.78 16.46 24 20.21 Workers’ Compensation 3.3 7.54 1.86 8.74 2.27 5.34 6.73

• Area of Law approximately 20% of all claims. Kentucky had an even • Type of Activity higher claims rate in the period 2000-06 of almost 26%. • Type of Alleged Error The nature of Personal Injury-Plaintiff practice with • Administrative Errors numerous deadlines to meet and the high risk of clients • Substantive Errors with unrealistic expectations accounts for many of the • Client Relations claims. The inescapable facts are that if your practice • Intentional Wrongs includes Personal Injury-Plaintiff matters, an aggressive risk management program is absolutely necessary for self- These categories organize claims statistics from differing per- preservation. spectives, but have a vectoring effect that pinpoints where the • ABA 2003 showed that in the 2003 study Real Estate was serious problems are. What follows are tables for each category again the second highest in percentage of claims. Ken- comparing ABA 2003 statistics with those of Lawyers Mutual’s. tucky experience in the period 2000-06 also shows Real Significant trends and observations are noted in the accompany- Estate as the second highest. The primary cause for real ing commentary for each table. estate claims is prosaic and remains the same as it has been for many years – error in public records search. This Area of Law Claims seemingly routine work requires careful attention to detail Table 1: Percentage of Claims by Area of Law lists the ten and close supervision because errors are expensive and for leading areas of law warranting malpractice analysis from a the most part indefensible. Kentucky perspective. The key considerations from Table 1 • Collection and Bankruptcy is an area of law where Ken- include: tucky malpractice claims in the last several years are trend- • ABA 2003 noted that Personal Injury-Plaintiff in the 2000- ing significantly higher than national experience. With a 03 study (hereinafter 2003 study) remained the area of new and complex bankruptcy law governing an already practice with the highest claims rate responsible for technical area of practice it is essential that bankruptcy rep- resentations be undertaken only if you know what you are Asa “Pete” Gullett is Chief Operating doing. Practicing “a little bankruptcy law” is a form of Officer for Lawyers Mutual Insurance malpractice Russian roulette. Company of Kentucky and has been with • ABA 2003 showed Personal Injury-Defense with an the company since 1999. Mr. Gullett increase in claims to nearly 10% in the 2003 study. It received his B.A. from Centre College in moved to third highest in claims for an area of law. Ken- 1968 and earned his J.D. at the University tucky statistics show a much better picture for Kentucky of Kentucky College of Law in 1971. defense counsel with a percentage of claims consistently From 1971 until 1999, Mr. Gullett was in lower than the national average over all studies. For the private practice in Hazard and served as Hazard City Prose- latest period it was a remarkable 8% lower than the nation- cutor and Hazard City Attorney. He also served in the KBA al average. Defense practice has historically been low risk, House of Delegates (1977-1983 and 1990-1998) and on the but it is clear that the dynamics of defense representation is KBA Board of Governors (1983-1989). In 2000, Mr. Gullett changing. Clients of defense counsel are no longer quietly was the recipient of the KBA Justice Thomas B. Spain acquiescing in adverse results and are much quicker to Award. He has been on the faculty of the New Lawyers Pro- claim. We are on notice in Kentucky that the risks of Per- gram since its inception and has served as the program man- sonal Injury-Defense practice are much greater than in the ager since 2001. past and that risk management is as essential to the defense

12 Bench & Bar January 2007 lawyer as it is to the plaintiff Table 2: Percentage Claims by Type of Activity lawyer. 1990-95 1991-95 1996-99 1996-99 2000-03 2000-2006 All Years ABA % KY % ABA % KY % ABA % KY % KY % Type of Activity Preparation, Filing, Table 2: Percentage of Claims by Transmittal of Type of Activity focuses on the Documents 16.21 12.27 25.24 13.37 23.08 13.13 13 legal process in which a lawyer was Pre-Trial, engaged when the error occurred. Pre-Hearing 12.62 10.69 8.18 10.29 19.47 14.67 12.59 The key considerations from Table 2 include: Commencement of • Preparation, Filing, Transmittal Action/Proceeding 28.62 29.1 15.66 29.33 15.59 24.54 26.87 of Documents is a broad cate- Advice 12.41 12.27 6.79 9.26 15.07 7.69 9.16 gory that applies to documents Settlement/ that are not part of a pleading or Negotiation 11.44 18.21 6.38 13.37 8.2 7.15 11.35 related to a contested matter. It includes contracts, leases, Trial or Hearing 7.1 6.73 5.1 6.51 5.07 3.8 5.2 deeds, formal applications, Title Opinion 0.95 13.06 13.01 9.09 4.03 10.5 10.72 wills, and trust. It does not Investigation other include tax returns or title opin- than Litigation 1.86 1.38 16.26 2.57 2.19 0.63 1.32 ions. ABA 2003 shows this cat- egory as the highest ranked for Appeal Activities 2.75 8.11 1.11 6.34 2.15 4.71 5.93 type of activity claims in the Ex Parte Proceeding 1.43 1.38 0.39 0 1.72 2.08 1.36 2003 study. Kentucky statistics Post Trial or Hearing 2.62 3.96 1.08 3.08 1.72 5.52 4.51 have been consistently better over all studies than the ABA Written Opinion statistics. We flag it here other than Title 0.65 1.18 0.22 0.34 0.77 0.72 0.72 nonetheless because it is clearly Tax Reporting 0.77 1.78 0.2 1.2 0.58 1.35 1.41 a troublesome area for many Referral/ lawyers and we can do better. Recommendation 0.57 0.39 0.38 0.17 0.36 0.09 0.18 Risk management that includes tight control over document flow, detailed mail procedures, and docketing of all time sen- Alleged Error Claims sitive and important documents is essential to avoid claims. Administrative Errors: Table 3: Percentage of Claims by • Commencement of Action/Proceeding is a category that Type of Error – Administrative Errors concerns getting the work focuses on the formal activities in starting a contested pro- done on time. Of significance is: ceeding including filing a government claim. It is an area • Getting the work done on time administrative errors where Kentucky has been consistently higher in claims that account for 24.98% of all Kentucky claims in 2000-06. the ABA studies show. A combination of failing to know or This contrast marginally favorably with the 28.36% ABA ascertain a deadline, to calendar a deadline, to calendar a 2003 shows in the 2003 study, but leaves a lot of room for deadline accurately, and to react to a calendar alert improvement accounts for most of the claims. Every practice should • The Kentucky percentages for the categories Failure to have an automated docketing system that alerts the respon- Calendar Properly and Failure to React to Calendar show sible lawyer, her secretary, and a central control person in again that this is a major weakness in office administration the firm to deadlines (solo practitioners use your computer and risk management for too many Kentucky lawyers. as the central calendar control). • It is not surprising that the percentage of claims in the Substantive Errors: Table 4: Percentage of Claims by Type activity Title Opinion is high in Kentucky given our high of Error – Substantive Errors concerns lawyer competence. The rate of real estate claims. What is alarming is that our Title key considerations from Table 4 include: Opinion percentage is more than twice the percentage ABA 2003 shows in the 2003 study. This is a risk that is screaming for attention. The percentages tell it all. Del O’Roark is the Loss Prevention • Appeal Activities is another category where Kentucky’s Consultant for Lawyers Mutual percentage of claims have been consistently higher that the Insurance Company of Kentucky. ABA percentages. We attribute this primarily to missed deadlines and again encourage emphasis on using state of the art docketing systems.

January 2007 Bench & Bar 13 Table 3: Percentage of Claims by Type of Error — Administrative Errors tance, or accepting matters outside a 1990-95 1991-95 1996-99 1996-99 2000-03 2000-2006 All Years firm’s practice area. If there is not ABA % KY % ABA % KY % ABA % KY % KY % time to gain the competence to prac- Procrastination 8.68 5.94 4.95 5.31 9.43 6.79 6.2 tice a matter, representation should be declined. Failure to Calendar •The higher 2000-06 percentage of Properly 6.75 8.71 7.03 7.71 5.19 9.69 8.94 Kentucky claims in the category Error Failure to React in Public Record Search reinforces to Calendar 6.35 2.77 1.27 3.25 4.35 4.8 3.92 what is already evident from the statis- Clerical Error 2.14 4.35 1.25 4.45 4.74 2.08 3.23 tics for the Area of Law category Real Estate and Type of Activity category Failure file Document Title Opinion. Far too many errors are No Deadline 2.69 0.39 1.54 0 4.28 1.08 0.63 made in title searches virtually all of Lost File, which could be avoided with careful attention to detail and close supervi- sion and review by the responsible Table 4: Percentage of Claims by Type of Error — Substantive Errors lawyer. 1990-95 1991-95 1996-99 1996-99 2000-03 2000-2006 All Years ABA % KY % ABA % KY % ABA % KY % KY % •The category Planning Error – Proce- Failure to Know/ dure Choice concerns cases when the Apply Law 11.05 29.3 21.9 27.1 10.98 17.84 23.03 lawyer knows the law and facts but allegedly makes an error in judgment. Inadequate Discovery The Kentucky 2000 – 06 percentages Investigation 10.24 9.5 6.13 7.89 10.37 7.33 7.98 show a serious increase in claims for Planning Error this category. Judgmental immunity Procedure Choice 10.87 4.75 3.21 3.43 7.72 11.14 7.61 for such claims as a defense in Ken- Failure to Know/ tucky was reviewed in Equitania Ins. Ascertain Deadline 6.97 7.32 15.24 6.17 7.09 6.25 6.47 Co. v. Slone and Garrett PSC, (Ky., No.2003-SC-1003-DG, 2/2/06) and is Conflict of Interest 3.79 4.55 5.12 3.43 6.28 2.8 3.37 recommended reading. Kentucky Error in Public lawyers can expect more claims for Record Search 1.24 10.69 2.65 5.83 2.54 8.96 8.53 simply getting a bad result even when Failure Understand/ fully competent and informed on a Anticipate Tax 1.96 0.99 1.57 0.85 1.26 1.26 1.09 case. Error Math Calc. 0.44 0.59 0.48 0.34 1.04 0.18 0.31 •The category Conflict of Interest shows Kentucky trending below the • Failure to Know/Apply Law is a category that Kentucky ABA studies’ percentages of conflict has improved in over the years, but a claims percentage of claims. What is significant is that the ABA studies show a 17.84% for 2000-06 is a significantly higher percentage national upward trend in claims alleging a conflict of inter- than the ABA statistics show in the 2003 study. This can est. We too are seeing more claims that, in addition to be the result of taking on more work than can be compe- alleging negligence, add allegations of a conflict of interest tently managed, relying too much on inexperienced assis- or fiduciary breach. In ABA 2003 the comment is made:

“We continue to see an Forensic Psychology Services increase in claims alleging a Harwell F. Smith Ph.D. conflict of interest by a lawyer or firm. Claims involving con- • CRIMINAL RESPONSIBILITY flicts of interest increased slight- • COMPETENCE TO STAND TRIAL ly to 6.2% of all claims during • PERSONAL INJURY EVALUATIONS the survey. Few of these claims • INDEPENDENT PSYCHOLOGICAL EVALUATION • DISABILITY EVALUATIONS appear to have involved intake • EXPERT OPINION OFFERED TO DEFENSE OR PROSECUTION problems. Instead, some indus- 27 years experience. try observations are that the vast Over 40 court appearances. majority of significant malprac- Special interest in criminal cases involving mental condition at the tice claims include a claim of conflict of interest. The conflict time of the incident — performed more than 500 of these evaluations. Board Certified may not have given rise to the 859.276.1836 • 330 Romany Road • Lexington, KY 40502 Clinical Psychologist

14 Bench & Bar January 2007 Table 5: Percentage of Claims Reports by Type of Error — Client Relations a permanent file, systemic weak- 1990-95 1991-95 1996-99 1996-99 2000-03 2000-2006 All Years nesses in firm operations can be ABA % KY % ABA % KY % ABA % KY % KY % identified over time, recurring Failure to Follow errors come to light, and risk Client’s Instructions 5.06 3.36 3.93 4.45 6.72 7.15 5.56 management programs can be developed responsive to a firm’s Failure to Obtain Client Consent/ unique situation. Risk manage- Inform Client 9.77 8.11 11.89 5.14 5.75 3.07 4.79 ment is not a “one size fits all” process. Every firm is different Improper Withdraw and requires a tailored risk man- of Representation 2.14 4.55 2.93 3.08 2.1 1.9 2.82 agement plan. The Risk Manage- ment Analysis checklist is the Table 6: Percentage of Claims by Type of Error — Intentional Wrongs instrument that gives a firm the 1990-95 1991-95 1996-99 1996-99 2000-03 2000-2006 All Years means to identify its special risk ABA % KY % ABA % KY % ABA % KY % KY % management needs. Malicious Prosecution Abuse of Process 3.7 11.48 4.09 7.03 3.59 2.62 5.83 Conclusion Fraud 3.19 3.16 2.11 2.57 3.35 3.8 3.33 Space precludes going into Libel or Slander 1.11 2.17 1.18 1.37 1.59 1.08 1.41 detail on other important mal- practice information. For exam- Violation of Civil ple, ABA 2003 finds in the 2003 Rights 1.29 0.39 1.15 0.17 1.26 0.09 0.18 study that most claims concern firms with less than five lawyers claim, but colors it and makes it more difficult (65.45%), but that claims concerning firms of 40 or more to defend.” lawyers were up 10.79% to 14.89%. This is an important indi- cator of the continuing trend of increasing and more expensive Everyone knows to screen for conflicts before accept- malpractice claims because larger firms typically have sophisti- ing a matter, but many lawyers fail to periodically check cated risk management programs and tight internal controls. It for conflicts that may have arisen during a representation. is also an unfortunate fact that the trend is for claims to take Make sure your risk management program calls for peri- longer to resolve. This means a dark cloud can hang over a odic review of all matters for new circumstances that lawyer and his firm for a protracted period of time – an unhap- could create a conflict of interest. py way to practice law. We hope this article serves to help you avoid this stress by providing you some of the information Client Relations and Intentional Wrongs: Table 5: Percent- needed to effectively risk manage your practice. We urge you age of Claims by Type of Error – Client Relations; and Table 6: to use the Risk Management Analysis checklist to facilitate this Percentage of Claims by Type of Error – Intentional Wrongs effort and achieve a claims-free practice. ■ show Kentucky claims percentages for 2000-06 overall in line with the ABA percentages in the 2003 study. ENDNOTE 1. Kentucky statistics are based on all reports received by Risk Management Analysis Lawyers Mutual of potential claims (incidents), claims, and Accompanying this article is a Risk Management Analysis suits. checklist that is printed in a way to facilitate copying. It is from materials developed for the Hinshaw & Culbertson 2006 Legal The Risk Management Analysis Checklist begins on page 16. Malpractice & Risk Management Confer- ence, and is reprinted with permission. We consider it one of the best checklists of its kind. It is a valuable instrument for evalu- ating and correcting errors that occur in a C. CLEVELAND GAMBILL firm. It should be used to analyze all ques- Retired United States Magistrate Judge tions of malpractice that arise in a practice – not just the situations that rise to the MEDIATION SERVICES level of an actual allegation of malpractice. Statewide This analysis should permit immediate correction of a malpractice risk within a Louisville • 502.931.7103 firm. By using the Risk Management Lexington • 859.317.0303 Analysis checklist for all incidents of potential malpractice and retaining them in [email protected]

January 2007 Bench & Bar 15 RISK MANAGEMENT ANALYSIS

I. CLIENT INTAKE i. Misrepresentation ■ 1. Incomplete information on firm’s client intake form ■ j. Inadequate Preparation ■ 2. No independent review of client intake decisions ■ k. Ineffective Negotiation ■ 3. Inadequate independent review of client l. Failure to understand/anticipate tax ■ intake decisions ■ m. Error in formal opinion (including audit response) letter ■ 4. No engagement letter sent ■ n. Error in public record search ■ 5. Inadequate engagement letter sent ■ o. Error in mathematical calculation ■ a. Failure to use form engagement letter ■ 2. Causes of Substantive Error b. Inadequate definition of clients/non-clients ■ a. Attorney suffering from impairment (alcohol, c. Inadequate description of scope of service ■ drugs, other addiction or psychiatric problem) ■ d. Inadequate limitation of scope of service ■ b. Attorney practicing out of normal area of expertise ■ e. Failure to include conflicts disclosure language ■ c. Attorney handling file/matter alone ■ f. Inadequate conflict disclosure language ■ (i) No other attorney in firm with knowledge of g. Failure to obtain any/adequate waiver or consent ■ practice area ■ h. Failure to obtain client’s timely countersignature ■ (ii) Inadequate or no review or oversight of 6. Failure to send any/adequate non-engagement letter ■ file by second attorney ■ 7. Failure to identify after-arising conflict of interest ■ d. Paralegal handling matter alone – inadequate or no 8. Failure to send closing letter ■ review or oversight of file by an attorney ■ e. Inadequate or no practice group management ■ II. TIME RECORDING, FEES, BILLING AND COLLECTIONS B. Client Relations 1. Fee dispute with client ■ 1. Categories of Failure a. Firm threatened suit for fees ■ a. Failure to follow client’s instruction ■ b. Firm initiated suit for fees ■ b. Failure to obtain client consent ■ c. Firm counterclaimed for fees ■ c. Failure to inform client ■ 2. Improper timekeeping/time recording ■ d. Improper withdrawal other than for failure to pay ■ a. Timekeepers entered time seven or more days 2. Causes of Failure after date work performed ■ a. Attorney practicing out of normal area of expertise ■ b. Substantive (more than editorial) changes in description b. Attorney handling file/matter alone ■ of work made subsequent to original time entry ■ (i) No other attorney in firm with knowledge of c. Substantive (other than to conform matching entries of practice area ■ multiple timekeepers) changes made in amount of time (ii) No review or oversight of file by second attorney ■ spent on task after date of original entry ■ c. Inadequate practice group management ■ d. Impossible (e.g., 25 hour day) time entries recorded ■ C. Intentional Wrongs e. Identity of person performing task changed after 1. Categories of Failure original time entry ■ a. Malicious prosecution/abuse of process ■ f. Inadequate or inaccurate description of work performed ■ b. Fraud ■ 3. Improper withdrawal of representation for failure to pay ■ c. Defamation ■ d. Violation of civil rights ■ III. SUBSTANTIVE ERRORS – INADEQUATE OVERSIGHT 2. Causes of Failure OF PARTNERS, PROFESSIONALS AND MATTERS IN PROGRESS a. Attorney handling file/matter alone ■ A. Substantive Errors (i) Failed to make adequate investigation ■ 1. Categories of Substantive Error (ii) Ignored information making client’s a. Failure to know/properly apply law ■ claims suspect ■ b. Improper Advice ■ b. No review or oversight of file by second attorney c. Inadequate discovery/investigation/due diligence ■ prior to commencement of litigation ■ d. Improper strategic/procedural choice ■ c. Inadequate review or oversight of file by second e. Unethical Conduct ■ attorney prior to commencement of litigation ■ f. Failure to Advise ■ (i) Failed to make adequate investigation ■ g. Improper Drafting ■ (ii) Ignored information making client’s h. Defective Research ■ claims suspect ■

16 Bench & Bar January 2007 d. Inadequate practice group management ■ (ii) Inadequate or no review or oversight of file by second attorney ■ IV. CASE MANAGEMENT AND THE PROTECTION OF d. Paralegal handling matter alone – inadequate or no CLIENT CONFIDENCES review or oversight of file by an attorney ■ A. Failure to Protect Client Confidences e. Inadequate or no practice group management ■ 1. Client confidences inadequately protected f. Inadequate or inappropriate document or file (i) Disclosure during discovery process ■ retention/destruction policy ■ (ii) Disclosure resulting from inadequate protection g. Failure to follow document retention/destruction of electronic communication (e.g., instant messaging, policy ■ e-mail, fax, telephone or voicemail) ■ 2. Nonexistent or inadequate firm policies and procedures V. HANDLING PROBLEMS, POTENTIAL AND ACTUAL CLAIMS for protection of client confidences ■ 1. Failure to give notice to insurer ■ 3. Nonexistent or inadequate training of law firm personnel a. Inadequate or no defined internal reporting policy ■ regarding protection of client confidences ■ 2. No designated general counsel, risk management or claims B. Missed Deadlines partner ■ 1. Categories of Failure 3. Failure to manage impaired lawyer ■ a. Failure to know/ascertain correct deadline ■ a. Inadequate or no human resource or employment b. Failure to calendar properly ■ manual or policies ■ c. Failure to react to calendar ■ 4. Failure to manage dealings with the media ■ 2. Causes of Failure a. Inadequate or no policy for responding to media a. Attorney maintaining personal calendar inquiries ■ (no central or practice group software available for deadline calculation and/or entry) ■ VI. DISASTER RESPONSE/BUSINESS RECOVERY PLANNING b. Paralegal/staff maintaining attorney’s personal 1. Inadequate or no disaster recovery plan ■ calendar (no central or practice group software a. Failure to secure adequate data backup ■ available for deadline calculation and/or entry) ■ b. Failure to secure adequate backup premises ■ c. Deadline missed by attorney maintaining c. Failure to secure adequate backup equipment ■ personal calendar (attorney not using d. Inadequate or no off-site data backup ■ available central or practice group software e. Inadequate training of personnel ■ for deadline calculation and/or entry) ■ 2. Failure to follow disaster recovery plan ■ d. Deadline missed by paralegal/staff maintaining 3. Loss of key personnel ■ attorney’s personal calendar (attorney not using available central or practice group software for VII. FINANCIAL CONTROLS AND MANAGING ESCROW deadline calculation and/or entry) ■ ACCOUNTS/CLIENT FUNDS e. No independent checking of deadline calculation 1. Categories of Failure and/or entry and/or timely completion of task by a. Theft, embezzlement or diversion of firm funds ■ an attorney responsible for calendar/docket control ■ b. Theft of client funds ■ C. Other Administrative Errors 2. Causes of Failure 1. Categories of Failure a. Inadequate human resource management procedures ■ a. Failure to file document (no deadline) ■ b. Inadequate audit or review of finances ■ b. Lost file, document or other item of c. Inadequate review of purchasing procedures ■ evidence or client asset ■ d. Inadequate oversight of client accounts ■ c. Loss or Destruction of Valuable Client Property (e.g., Wills, Bonds Original Documents, VIII. LAW FIRM MANAGEMENT Necessary Evidence) ■ 1. Inadequate or no partnership/shareholder agreement ■ 2. Causes of Failure a. Compensation structure encourages solo practice a. Attorney suffering from impairment (alcohol, mentality – discourages centralized management ■ drugs, other addiction or psychiatric problem) ■ 2. Inadequate resources allocated to firm management ■ b. Attorney practicing out of normal area of expertise ■ 3. Inadequate time spent on firm management ■ c. Attorney handling file/matter alone ■ 4. Inadequate supervision of satellite office ■ (i) No other attorney in firm with knowledge of 5. Inadequate oversight of firm finances ■ practice area ■

January 2007 Bench & Bar 17 VE EADER HA OES LAWR WHAT D ESN’T? MAKER DO THAT CASE

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By Otto Daniel Wolff

All Kentucky attorneys should be con- cerned with legal malpractice. In hopes of lessening one’s prospect of con- fronting a legal malpractice claim, this primer is provided. A legal malpractice action is a negli- Legal Malpractice Primer gence case – a duty, a duty breached, the breach causing damages – but there are twists unique to such an action. A legal negligence claim consists of three elements:

1. An attorney-client relationship; professional corporation of attorneys – a shall remain jointly and severally liable 2. The attorney’s breach of the duty limited liability partnership, a profession- for acts, errors and omissions not covered owed to the client to exercise the al service corporation, a limited liability by insurance. Under this Rule a co-owner ordinary care and skill of a reason- company. The courts addressing the issue remains personally liable for the negli- ably competent attorney acting in the have generally held the offending lawyer gent acts committed by an individual same or similar circumstances; and liable and the professional entity liable to under his or her direct supervisor.5 3. The attorney’s breach of duty was a the extent of the entity’s assets. Participants in a de facto partnership proximate cause of the client’s loss.1 In Kentucky, the question of the liability (typically a group of individual attorneys of a member of a limited liability entity is who physically practice together), who The following is a basic discussion of largely answered in Supreme Court Rule did not deal with the client, may be con- state law pertaining to the components of (SCR) 3.024.4 Under this Rule a lawyer sidered an attorney in the attorney-client a legal malpractice claim. may practice in a registered limited liabil- relationship. The test for the existence of ity partnership, a professional service cor- a de facto partnership is whether the The Attorney-Client Relationship poration or a limited liability corporation client reasonably believed the representa- so long as there is maintained by the entity tion had been provided by the entity The Attorney adequate professional liability insurance rather than by a sole attorney.6 The first component of the attorney- coverage to cover acts, errors or omis- Another example of an attorney being client relationship is the attorney, who is sions of its partners, shareholders or own- vicariously liable occurs through non- an attorney that may be liable for mal- ers. The Rule defines what is adequate lawyer employees of a law firm, which practice. The relationship of attorney- liability insurance. The Rule provides includes secretaries, law clerks and para- client is a contractual one, created either each co-owner of a limited liability entity legals. When a paralegal undertakes tasks expressly or impliedly by the conduct of the parties.2 Obviously the attorney who expressly contracts with a client or the attorney who actually handles the client’s matter is an attorney in the attorney-client relationship. A unique twist is the defendant attor- ney may not be the attorney who attended to the client’s matter. The liability of an attorney can be created vicariously. Examples of an attorney being held vicariously accountable for another attor- ney’s malfeasance are numerous. One example is a legal partnership. If one attorney within the partnership acts negli- gently, all the attorneys in the partnership will be exposed to liability. In essence, all the partners become the attorney in the attorney-client relationship.3 The author is unaware of any Ken- tucky case which addresses the malprac- tice liability of individual members of a

January 2007 Bench & Bar 19 requiring legal skills and does so negli- counsel’ attorney should not be vicariously Whether there is an attorney-client gently, the standard applicable to an attor- liable for the firm’s negligence.10 relationship is primarily determined by ney will apply to the paralegal and the A retired attorney may be liable for the ascertaining if the attorney has created a supervising attorney.7 allegedly negligent acts done by him duty owed to the client. The question of An attorney who delegates or refers a while a member of his former firm. This whether there is a duty owed is a question matter to an incompetent attorney may is true if the retired attorney is the attor- of law for the court, but due to factual become liable for malpractice of the ney who committed the firm to take on disputes this issue can become a question incompetent attorney. The referring attor- the client’s matter or if the retired attor- of fact for the jury.19 ney becomes a defendant with the attor- ney worked on the matter while a mem- The relationship of attorney-client is ney who negligently did the work.8 ber of the firm.11 contractual, either expressed or implied The negligent actions of an attorney The estate of a deceased attorney may by the conduct of the parties. The rela- who has retained local counsel may become vicariously liable for a deceased tionship is one of principal and agent, but expose the local counsel to liability and attorney’s negligence provided, during because of the attorney’s quasi-judicial vice versa. The test for the liability of the the deceased attorney’s life, he/she dealt status as an officer of the court, the attor- local counsel is largely based upon the with the underlying matter or brought the ney has a higher duty than an ordinary understanding of the attorneys which is client to the firm.12 agent owes the principal; the attorney- often documented in an engagement let- client relationship is fiduciary in nature.20 ter. In the absence of an engagement let- The Client An appropriate inquiry in determining ter, there are factors to be considered in The other component of the attorney- if there is a relationship is whether the determining liability of local counsel. Is client relationship is the client. The ques- attorney undertook to perform any service the relationship a joint venture where the tion being who qualifies as a client in the thus creating a duty owed. Another uti- attorneys share profits and losses? To attorney-client relationship? lized test is whether the potential client what extent did the local counsel actually Who is a client is largely determined reasonably relied on the attorney’s actions participate in the development and strate- by the reasonable perception of the per- or representations.21 gy of the case?9 son contending to be a client. Some of The creation of the relationship does The negligent doings of an ‘of counsel’ the client’s perceptions are accurate, some not require the payment of a fee and the attorney may cause a law firm to be are less so. One may be a client either relationship can arise from a brief formal exposed to liability. A key factor in deter- expressly or impliedly. or informal consultation with a prospec- mining the liability of an ‘of counsel’ An obvious client is the person or entity tive client.22 attorney is how the firm’s stationery rep- who expressly retained or contracted with Kentucky law contains an example of resents the status of the ‘of counsel’ attor- the attorney to provide legal services. a determination that there is not an attor- ney. Is his name separated from the other Irrespective of a lack of privity, Ken- ney-client relationship.23 Therein an firm members? Is the attorney noted as a tucky law allows one to be considered a excess insurance carrier attempted to sue specialist? A further determinative factor client if that person is intended to be bene- the insured’s defense counsel. The Court is whether the ‘of counsel’ attorney acted fited by the lawyer’s performance.13 of Appeals denied such noting the attor- on his or her own behalf; if so, there Examples being the intended beneficiaries ney’s duty was owed to the insured rather should not be liability to the firm. An ‘of of an estate trust wherein the suing client than to the excess carrier, thus there was is the benefactor rather than the testator of not an attorney-client relationship. The the trust,14 likewise, the intended heirs Court stated: Otto Daniel “Dan” under a will are intended beneficiaries “To hold otherwise would in Wolff is a solo prac- though they had no contact with the our judgment acknowledge a tioner in Northern offending attorney.15 Another example is direct duty owed by the insured’s Kentucky. He pri- the attorney who performs a property title attorney to the excess insurer and marily works in per- exam for a specific client, often a financial would be tantamount to saying sonal injury, legal institution, but others, besides the direct that the insurance defense attor- malpractice, munici- client, reasonably rely upon the attorney’s neys do not owe their duty of pal and appellate input.16 If a client files bankruptcy with a loyalty and zealous representa- law. He practices in the U.S. Court of malpractice claim pending, the bankruptcy tion to the insured client alone.” Appeals, U.S. District Courts of East- trustee may become the client.17 The Court went on to define the excess ern and Western Kentucky and the carrier as an incidental beneficiary rather Southern District of Ohio. Mr. Wolff Attorney-Client Relationship than an intended beneficiary and thus pre- also practicies in the state courts of The last component of the first ele- cluded substituting clients. Kentucky and Ohio. He is a past presi- ment of a legal malpractice claim is dent of the Northern Kentucky Bar whether there is a relationship between Standard of Care Association. His undergraduate and the attorney and the client. Kentucky The next element of an attorney mal- law degrees are from the University of courts work to preserve the traditional practice action is whether the attorney Cincinnati. attorney-client relationship.18 breached a duty to exercise the ordinary 20 Bench & Bar January 2007 care and skill of a reasonably competent must show he/she would have fared bet- have been and what the result was and attorney acting in the same or similar cir- ter in the underlying matter but for the that difference would not have occurred cumstances. attorney’s negligence.32 As to proximate but for the attorney’s negligence. The question of whether the attorney’s cause the attorney’s negligence need not In handling a trial-within-a-trial situa- conduct meets the standard of care is a be the sole cause of the client’s loss, it tion, it seems logical to bifurcate the trials question for the jury.24 Unless the alleged needs merely to be a substantial factor in so the jury does not confuse the issues. error is obvious (a missed statute of limi- causing the client’s loss.33 To this author’s knowledge, bifurcation tations) there must be expert attorney tes- Causation is often determined by uti- has not been utilized in state court but has timony to define the standard of care and lization of the trial-within-a-trial tech- recently been utilized in federal court. to point out how the attorney’s actions nique. The objective of the trial-within-a- This technique saves time for if the client deviated from that standard.25 The expert trial methodology is to establish causation does not prevail in the underlying case, witness may not be the judge who sat or and, in some situations, to determine then the attorney’s supposed error would ruled in the underlying matter.26 damages.34 A legal malpractice case is be harmless.36 The duty of the defendant attorney often referred to as the suit within a suit. To demonstrate proximate case in a consists of two parts: This technique is utilized to prove the criminal proceeding, the client must be 1. whether the attorney gave to the negligence of the attorney caused the exonerated from the conviction through matters submitted to him such care plaintiff harm. The plaintiff must show post-conviction relief. This requirement is and attention as is ordinarily given he/she would have fared better in the the equivalent of showing in a civil action to similar affairs by members of the underlying claim ‘but for’ the attorney’s what claimant should have received but profession and negligence.35 for the attorney’s malfeasance.37 Without 2. whether the attorney possesses, to An example of the trial-within-a-trial is exoneration it cannot be said the attor- an ordinary extent, the technical when the legal malpractice action ney’s actions were the proximate cause of knowledge commonly possessed by involves an underlying medical malprac- the loss; unless the client obtains exoner- those in the profession dealing with tice action, the legal malpractice claimant ation, then his/her criminal activities are such matters.27 must prove what the result in the underly- presumed to be the proximate cause of More simply stated, the standard of care ing medical malpractice case should have the client’s loss. consists of two elements – care and skill. been. Causation is established if there To obtain post-conviction relief by Examples of the care component of the exists a difference between what should criminal clients a CR 11.42 ineffective standard of care exist when an attorney fails to timely act thus causing injury to the client. Examples of a lack of skill exist when the attorney, without a sufficient degree of legal knowledge, acts ineptly. Situations which have been deemed to &5$)712%/( &203$1<³7KH&3$ILUPWKDWRIIHUVVRPXFKPRUH 3//& constitute an attorney’s departure from a standard of care include an attorney’s &HUWLILHG 3XEOLF $FFRXQWDQWV failure to discuss a non-compete provi- 3RVW 2IILFH %R[  sion with a client who is buying control 5LFKPRQG .<  ZZZFUDIWQREOHFRP 28 %XVLQHVV9DOXDWLRQ of a closely held corporation, an attor- ‡%XVLQHVV6DOH ‡3URIHVVLRQDO3UDFWLFH6DOH ney’s failure to have the client in a bank- ‡0DULWDO'LVVROXWLRQ ‡,QVXUDQFH&ODLPV ruptcy proceeding not list an asset,29 ‡(VWDWHDQG*LIW7D[‡)DPLO\/LPLWHG3DUWQHUVKLSV allowing a statute of limitations to run ‡(6236 thus extinguishing a client’s personal ([SHUW:LWQHVV7HVWLPRQ\ injury cause of action.30 In each of these ‡%XVLQHVV9DOXDWLRQ‡0RQHWDU\'DPDJHV ‡$FFRXQWLQJ0DOSUDFWLFH situations the attorney failed to meet the ‡%XVLQHVVDQG%DQNLQJ3UDFWLFHV standard of care and skill required of ‡)UDXGRU,OOHJDO$FFRXQWLQJ3UDFWLFHV attorneys practicing such matters. $UELWUDWLRQDQG0HGLDWLRQ ‡%XVLQHVV'LVSXWHV ‡0DULWDO'LVVROXWLRQ Proximate Cause ‡5HDO(VWDWH&RQWUDFW'LVSXWHV If it is determined the allegedly offend- ing attorney was negligent by breaching )RUHQVLF$FFRXQWLQJ the standard of care, then the last element ‡,GHQWLI\7KHIW)UDXGRU,OOHJDO$FFRXQWLQJ3UDFWLFHV of a legal malpractice claim is whether the attorney’s negligence was a proximate ZZZFUDIWQREOHFRP‡  ‡&UDIW1REOHDQG&RPSDQ\3//& cause of the client’s damages.31 FRQWDFW-RKQ&UDIW To prove that the negligence of the &HUWLILHG3XEOLF$FFRXQWDQWV‡ $FFUHGLWHG%XVLQHVV9DOXDWRU‡$PHULFDQ$UELWUDWLRQ$VVQ1HXWUDO attorney caused claimant harm, claimant January 2007 Bench & Bar 21 assistance of counsel motion is usually a disadvantageous settlement, etc. ment the claimants sued the Kentucky utilized. Such motions may succeed if the Typically it is relatively simple to lawyer for malpractice based upon the attorney affirmatively advised the client demonstrate a loss. The difficulty lies in missed statute; claimants contended they wrongly.38 If such an ineffective assis- fixing the monetary value of that loss. would have received more than tance of counsel motion is successful, a The measure of damages is the differ- $60,000.00 if the case had been tried by a legal malpractice claim usually follows. If ence between what the claimant’s pecu- Kentucky jury. The Kentucky matter was a client is able to prevail in an 11.42 niary position is and what it should have tried and the jury awarded the client motion, the client should be able to pre- been had the attorney not erred. The $90,854.62 in compensatory damages and vail in a legal malpractice claim.39 value of the loss is measured at the time $15,000.00 in punitive damages. of the attorney’s error.43 The verdict was appealed. On appeal it Damages Although damages cannot be calcu- was held claimants’ Kentucky damages Palmore’s instructions define what a lated precisely, depending on the cir- were too speculative to be allowed. The claimant must prove to be deemed to cumstances, damages may be estimated appellate court characterized the Ken- have sustained injury, the claimant must or resolved with the trial-within-a-trial tucky recovery as being “a matter of con- prove a “loss.” 40 technique.44 jecture and speculation.” The court A malpractice action cannot be suc- The value of the loss cannot be specu- explained there was no way of knowing cessful unless it can be shown that the lative. Kentucky case law illustrates when what an Indiana jury would have done if client sustained a loss or was deprived of one’s damages are too speculative to be the Indiana case had been tried to a jury, something to which the client was other- allowed.45 A Kentucky attorney commit- the Indiana jury could have awarded wise entitled.41 A loss can be the loss of a ted malpractice when he let the Kentucky more or less damages so therefore the right, a remedy, an interest or the imposi- statute of limitations expire on a personal Kentucky jury award was too speculative. tion of a liability.42 A “loss” may be the injury cause of action. Subsequently the Includable within malpractice damages loss of a cause of action, the failure to clients retained another attorney who was is interest on the amount lost and any fee receive an unencumbered title to real aware claimants had a two-year statute of paid to the negligent attorney.46 KRS property, loss of an opportunity to accept limitations if the action was filed in the 411.182. As with other Kentucky tort a plea with a lesser punishment, loss of federal court of southern Indiana which actions one may not recover the attorney pursuing a safety violation in a workers’ claimant did. The Indiana suit concluded fee due claimant’s malpractice attorney. compensation claim, loss of entering into with a $60,000.00 settlement. After settle- It is unclear whether a Kentucky client’s legal malpractice recovery should be reduced by the attorneys’ fees the client would originally have had to pay for competent performance in the under- lying matter. The majority view is that such fees are not deducted from damages.47 In a Kentucky legal malpractice action, punitive damages are allowed provided the underlying wrongful act constitutes an act of fraud, lying, concealment or breach of fiduciary duty.48 Apportionment of fault should apply to a legal negligence action pursuant to KRS 411.182. Utilization of apportion- ment was suggested prior to enactment of the apportioned statute.49

Statutory Provisions Kentucky does have a statutory pro- vision providing a legal malpractice cause of action. KRS 411.165 limits the bringing of the action to the client who actually employed the attorney. There does not appear to be any room for an intended beneficiary to proceed under this statutory cause of action. Statutes of this nature are seldom relied upon to pursue a legal malpractice action rather 22 Bench & Bar January 2007 reliance is placed upon the common law 997 S.W.2d, note 18 31, Number 9, p. 400 (Sept. 2006); cause of action.50 21. Smith & Mallen, supra, Sec. 8.2 McMurtry v. Wiseman, 22. American Continental Insurance Co., 2006 WL 237006 (W.D. Ky. Aug. The risk of legal malpractice can be 997 S.W.2d, note 18 2006). minimized. By relating these key ele- 23. Id. at 18 37. Stephens, 150 S.W.3d 80 ments, it is hoped that Kentucky attor- neys will be able to avoid the distraction 24. Daugherty, 581 S.W.2d 12, note 2 38. Padilla v. Comm. of Ky., No. 2004- and potential bad result of a legal mal- 25. Stephens v. Denison, 150 S.W.3d 80 CA-001981 (CA Ky. 2006) practice claim. ■ (CA Ky. 2004) 39. See The Risk Manager, Lawyers 26. Bierman v. Klapheke, 967 S.W.2d 16 Mutual Insurance Co. of Ky., Sum- ENDNOTES (S.Ct. Ky. 1998) mer 2005 Newsletter, Vol. 16, Issue 3. 27. Daugherty, 581 S.W.2d 12, note 2 40. Palmore, Kentucky Instructions To 1. Marrs v. Kelly, 95 S.W.3d 856 (S.Ct. 28. Holt v. Concrete Materials Corp., Juries, §21.01 (4th Ed. 1989) Ky. 2003) 1990 Ky. App. LEXIS 20, No. 88- 41. Mitchell, 551 S.W.2d at 586 2. Daugherty v. Runner, 581 S.W.2d 12 CA-2322-MR 42. Smith & Mallen, supra, Sec. 20.1 (CA Ky. 1979) 29. Kirk, 62 S.W.3d 37, note 14 43. Smith & Mallen, supra, Sec. 19.4 3. KRS 362.220 – Nature of Partner’s 30. Mitchell v. Transamerica Insurance 44. Smith & Mallen, supra, Sec. 19.3 Liability Co., 551 S.W.2d 587 (CA Ky. 1977) 45. Mitchell, 551 S.W.2d 587 4. SCR 3.024 – Requirements of Prac- 31. Smith & Mallen, supra, Sec. 8.5 46. Id. at note 41; KRS 411.165 ticing Law in Limited Liability 32. Marrs, 95 S.W.3d 860 47. Smith & Mallen, supra, Sec. 20.18 Entities 33. Daugherty, 581 S.W.2d 12; Smith & 48. Bierman, 967 S.W.2d 16, note 26 5. Id. Mallen, supra, Sec. 8.5 49. KRS 411.182; Wimsatt v. Hayden Oil 6. Smith & Mallen Legal Malpractice, 34. Smith & Mallen, supra, Sec. 33.9 Co., 441 S.W.2d 908 (CA Ky. 1967) 5th Ed. Sec. 5.3. This text is consid- 35. Marrs, 95 S.W.3d 856 50. Smith & Mallen, supra, Sec. 9.2 ered authoritative on the subject of 36. Professional Liability Reporter, Vol. legal malpractice. See Marrs, 95 S.W.3d 856, fns 10 and 17. 7. Smith & Mallen, supra, Sec. 5.8 8. Smith & Mallen, supra, Sec. 5.9 9. Smith & Mallen, supra, Sec. 5.7, 5.9 10. Smith & Mallen, supra, Sec. 5.7 11. Smith & Mallen, supra, Sec. 5.9 12. Smith & Mallen, supra, Sec. 5.1, 5.2 13. Siegle v. Jasper, 867 S.W.2d 476 (CA Ky. 1993) 14. Smith & Mallen, supra, Sec. 7.8 15. O’Bryan v. Love, 2004 Ky.App. LEXIS 105, No. 2002-CA- 002601MR, discusses liability to identifiable beneficiaries of an estate’s planners and will drafters; 53 KLS 9, p. 30 (S.Ct. Ky. 2006) (reversed on other grounds) 16. Siegle, 867 S.W.2d 476, note 13 17. Kirk v. Watts, 62 S.W.3d 37; 2001 Ky. App. LEXIS 592 (CA Ky. 2001). 18. American Continental Insurance Co. v. Webber & Rose, 997 S.W.2d 12 (CA Ky. 1998) 19. Smith & Mallen, supra, Sec. 7.8 20. American Continental Insurance Co., January 2007 Bench & Bar 23 HOT TOPIC

Part 1 Kentucky’s New Partnership and Limited Partnership Acts An Introduction By Dean Allan W. Vestal & Thomas E. Rutledge

The 2006 Kentucky General Assembly adopted new partnership and limited partnership acts. These new acts, each based upon a uniform act, significantly modernize their respective area of law as contrasted with the prior law. In Part 1 of this two-part article, the Kentucky Revised Uniform Partnership Act is discussed. Part 2 of the article, addressing the new Kentucky Uniform Limited Partnership Act, will appear in the next issue of the Bench & Bar. The article in its entirety is available on the Kentucky Bar Asso- ciation’s website at www.kybar.org. The following Frequently Asked Questions (FAQs) are not intended to be a complete exegesis of the new laws. Rather, they serve to address what are likely to be first questions that will occur to the practitioner upon the first reading of the statutes. The Kentucky Revised Uniform Partnership Act Frequently Asked Questions (FAQ)

Q. Upon what is the former part- Q. How was RUPA drafted, Q. What was the effective date of nership law based? and by whom? the new partnership law, and what is its effect on partnerships formed A. Kentucky’s former general partner- A. RUPA was a project of NCCUSL, before then? ship law (set forth in KRS ch. 362 at §§ undertaken in response to a call for a 362.150 through 362.360) was based on revision of UPA set forth in Should the A. The effective date of KyRUPA was the Uniform Partnership Act (1914) Uniform Partnership Act Be Revised?, a July 12, 2006. As of that date, all newly- (“UPA”), and was adopted by Kentucky 1986 report of the UPA Revision Sub- formed partnerships are formed under and 6 in 1954 (“KyUPA”). But for amend- committee of the Committee on Partner- governed by KyRUPA. KyRUPA will ments made in 1994 to address the elec- ships and Unincorporated Business Orga- not govern partnerships formed prior to tion of a general partnership to be a limit- nizations of the American Bar Associa- July 12, 2006 unless the partnership makes 7 ed liability partnership (KRS §§ 362.555 tion.3 Members of the American Bar an affirmative election to be so governed. through 362.605), KyUPA was minimally Association Committee on Partnerships The election by a KyUPA partnership revised since its adoption. and Unincorporated Business Organiza- to be governed by KyRUPA will be by a tions reviewed and advised on the draft vote of the partners sufficient to amend 8 Q. Why is the New Uniform Act act throughout its development. the current partnership agreement. Filing called “RUPA”? After a number of drafts, the Uniform a statement of partnership authority or a Partnership Act (1994) was finalized and statement of qualification is an affirmative A. The technically correct name for the election to be governed by KyRUPA.9 new uniform act is the “Uniform Partner- approved that year by both NCCUSL and ship Act (1997).” Through most of its the ABA. However, shortly thereafter, the decision was made to reopen the act Q. Must partnerships file drafting and consideration by the National organizational documents with Conference of Commissions of Uniform to address limited liability partnerships. 4 the Secretary of State? State Laws (“NCCUSL”), it was referred With the LLP amendments, the Uniform 5 to as the Revised Uniform Partnership Partnership Act (1997) was completed. A. RUPA does not mandate any filings Act. In 1994, the “Revised” was dropped. NCCUSL maintains a website at for partnerships. However, a partnership Nonetheless, “RUPA” has become firmly http://www.nccusl.org from which all of cannot elect limited liability partnership fixed as the colloquial name of the act, the uniform acts can be accessed and (“LLP”) status without a filing with the and “RUPA” is in fact used in NCCUSL’s downloaded. The copy of RUPA avail- Secretary of State. Certain “statements” prefatory note to the act. The official able at the NCCUSL website also con- may be filed on a voluntary basis. name of the Kentucky adoption is the tains the prefatory note and the reporter’s comments. “Kentucky Revised Uniform Partnership Allan W. Vestal is the Dean and Profes- Act (2006)”.1 This distinguishes it from A listing of other states that have adopted RUPA also can be found on the sor of Law, University of Kentucky the official name of KyUPA, being the College of Law. “Uniform Partnership Act.”2 NCCUSL website. Thomas E. Rutledge is a member of Stoll Keenon Ogden PLLC.

24 Bench & Bar January 2007 Q. What is the relationship of a Q. Is a partnership required to have A. There is no hierarchy of the state- LLP to a general partnership? a registered office and agent for service ments in the manner of corporate/LLC of process? filings, which begin with the articles and A. Every LLP is a general partnership, subsequent filings modify that initial fil- and is the same partnership both before A general partnership that has filed a ing. Rather, RUPA statements should be 10 A. and after the election to be an LLP. statement of qualification (thereby electing thought of as similar to filings under the to be an LLP) must maintain a registered Uniform Commercial Code. The RUPA Q. What are the statements office and agent for service of process.12 statements regimen is voluntary, and that a partnership may file with A foreign LLP that has qualified to trans- while the various statements are effective the Secretary of State? act business is likewise required to main- for their respective purposes, it is possible tain a registered office and agent.13 Part- for transactions/events to take place with- A. RUPA provides for various volun- nerships that have not elected to be an out any statement having been filed. tary filings to facilitate notice of authority LLP do not have a registered office/agent. to act on behalf of a partnership as well Q. Must statements be filed with the as record certain transactions. Those fil- Q. What is the hierarchy county clerk? ings, the relevant KyRUPA sections, and of the statements? the purpose of each filing are as follows: A. There is no requirement that state- ments be filed with the county clerk. How- KRS § ever, such filings are permitted, and a state- Statement of Purpose 362.1- ment of partnership authority will not, with respect to real estate transfers, have its full 14 Filed to record existence of partnership, effect without a county level filing. identify partners and state which partners Partnership Authority 303 have authority to transfer partnership Q. Must partnerships file an real property annual report?

Filed to deny one is a partner or General partnerships that file a state- another fact in a statement of A. Denial 304 ment of qualification (thereby electing to partnership authority be an LLP) are required to file an annual report.15 Foreign LLPs that file a state- Filed to record the dissociation ment of foreign qualification also are Dissociation 704 of a partner required to file an annual report.16 If a general partnership has not made one of these filings, it is not required to file an Filed to record that a partnership has annual report. Dissolution 805 dissolved and is winding up its business Q. What is the consequence of not filing an annual report?

Merger 907 Filed to record a merger A. A domestic LLP that fails to file an annual report will have its statement of qualification administratively dissolved.17 The administrative dissolution of the Qualification of a partnership as a limit- Qualification 1001 ed liability partnership statement of qualification may be cured, and the cure relates back to the date of dissolution.18 A foreign LLP that fails to file its annual report will have its state- Amendment of the registration as a Amendment to Qualification ment of foreign qualification revoked.19 1001 limited liability partnership The revocation of a statement of foreign qualification cannot be cured - a new Qualification of a foreign limited statement must be filed. Foreign Qualification 1102 liability partnership to transact business in Kentucky Q. Who is an agent of the partnership and the partners, and who can sign statements on behalf of Forms are available from the Secretary of State’s office. KyRUPA does not mandate the use of certain forms. However, the Secretary of State has the discretion to make the the partnership? use of certain forms mandatory.11 January 2007 Bench & Bar 25 39 Each partner is an agent for the part- The name of a partnership filing a by the partners. This is a marked clari- A. A. 40 nership in its ordinary course of Statement of Qualification or of Foreign fication as contrasted with the prior law. business.20 As KyRUPA adopts an entity Qualification must be distinguishable.29 treatment for partnerships,21 partners are Distinguishability is not a prerequisite to Q. May a foreign partnership qualify not agents for other partners. Statements filing other statements. The statute sets to transact business in Kentucky? filed on behalf of the partnership must be forth certain terms that may not be used signed by two partners, while statements in the name of a general partnership, as A. A foreign partnership that is an LLP filed on behalf of a partner need be well as the required endings for a domes- in its jurisdiction of organization may signed only by that partner.22 tic or foreign LLP.30 qualify to transact business in Kentucky by filing a statement of foreign qualifica- 41 Q. Has the rule of partner Q. May partnerships merge tion. A foreign partnership that is not an liability been altered? under KyRUPA? LLP is not required to qualify to transact business, and there is no mechanism for it A. Assuming the partnership has not A. Partnerships mergers are expressly to do so. filed a statement of qualification and provided for under KyRUPA.31 elected to be an LLP, partners are jointly Q. How are filing procedures with and severally liable for the debts and Q. May partnerships convert the Secretary of State addressed? obligations of the partnership.23 The rule under RUPA? that a person admitted to a previously A. Filing procedures with the Secretary existing partnership is not personally A. KyRUPA permits a partnership to of State are based upon practices already liable for pre-admission partnership obli- convert into a limited partnership.32 The in place with respect to corporations and gations is preserved.24 existing mechanism for the conversion of limited liability companies. For example, a general partnership into an LLC the provisions addressing requirements 42 What changes have been made to remains in place.33 for documents to be filed, effective time Q. 43 the limited liability partnership (LLP)? and date, and appeal of a refusal to 44 Q. Does KyRUPA define fiduciary file are all closely patterned on the cor- A. Under the 1994 amendments to duties among the partners? responding provisions under the Business KyUPA, LLPs were authorized, and gen- Corporation and Limited Liability Com- eral partners are afforded a “partial A. In this area KyRUPA is not uniform pany Acts. shield” from personal liability. That par- to RUPA,34 adopts a non-exclusive statu- tial shield protects a partner from person- tory description of the fiduciary obliga- Q. Has the assumed name statute al liability from claims involving negli- tions of the partners,35 and also addresses been revised to address KyRUPA? gence, malpractice, wrongful acts or mis- non-fiduciary obligations such as good 45 conduct, but not from contract-based faith and fair dealing. The KyRUPA for- A. The assumed name statute has 46 claims.25 Under KyRUPA, general part- mula for the duty of care is non-uniform been revised to: ners in an LLP are afforded a complete and is unique to Kentucky.36 These pro- (i.) provide that the “real name” of a shield from liability - the protection is not visions are complex and go to the core of partnership that is not an LLP and dependent upon whether the claim arises the partnership and the relations among that has filed a statement of partner- in tort or in contract.26 Of course, this the partners, and as such must be careful- ship authority is the name set forth 47 liability protection relates only to vicari- ly studied by all practitioners who would on that statement; ous liability as a partner, and does not counsel clients as to the formation, opera- (ii.) clarify that if a partnership is not an protect a partner from personal liability tion, and/or dissolution of partnerships. LLP and has not filed a statement of for their own actions.27 partnership authority, its “real name” Note that the broader liability protec- Is a KyRUPA partnership treated is a name that includes the name of Q. 48 tion afforded a KyRUPA LLP is available as an aggregate or an entity? each of the general partners; and to partnerships formed prior to July 12, (iii.) provide that the “real name” of an 2006 only after the partnership elects to A. KyRUPA adopts an entity, as con- LLP is the name set forth on its be governed by KyRUPA. The LLP trasted with an aggregate, treatment for statement of qualification or the LLP electing to be governed by KyRUPA all partnerships.37 registration filed under KRS § 49 needs to notify its existing customers and 362.555. creditors of that election in order to have Q. What freedom exists to customize the immediate benefit of the broader lia- the relationship amongst the partners Q. Must a partnership identify bility shield.28 in the partnership agreement? all of its partners if adopting an assumed name? How has KyRUPA impacted part- Q. A. KyRUPA sets forth comprehensive A. Under current law, a partnership, as nership names? default rules that subject to certain safe- 38 such, is not obligated to make a public fil- guards and limitations may be modified ing identifying all of the partners. How- 26 Bench & Bar January 2007 ever, if the partnership is to do business ALLAN W. VESTAL AND DONALD J. solved corporation or LLC restricted under an assumed name, it must name all WEIDNER, THE REVISED UNIFORM to activities appropriate for its wind- of the partners in the application for cer- PARTNERSHIP ACT (Thomson-West, ing up and dissolution). tificate of assumed name.50 Under 2006). 18. KRS §§ 362.1-122(5), 362.1-122(6). KyRUPA and the revised assumed name 6. KRS § 362.1-1204(1)(a). Accord KRS §§ 271B.14-220(3); statute, the same rule will apply unless the 7. KRS §§ 362.1-1204(1)(b); 362.1- 275.295(3)(e). partnership files a statement of partnership 1204(2). 19. KRS § 362.1-123. Accord KRS §§ authority or a statement of qualification. 8. KRS § 362.1-1204(2). 271B.15-310; 275.440; 275.449. If the partnership files either of those 9. KRS § 362.1-1204(2). 20. KRS § 362.1-301(1). Accord KRS § statements, the name on the statement 10. KRS § 362.1-201(2). Accord KRS 362.190(1). becomes the “real name” of the partner- §§ 362.155(7); 362.175(1). 21. KRS § 362.1-201(1). ship for assumed name purposes.51 ■ 11. KRS § 362.1-105(11). Accord KRS 22. KRS § 362.1-105(3). §§ 271B.1-210(2); 275.050(2). 23. KRS § 362.1-306(1). Contrast KRS Part II of this article will appear in the 12. KRS § 362.1-117. § 362.220(1) (joint and several lia- March 2007 issue of Bench & Bar. 13. KRS §§ 362.1-117; 362.1- bility for claims arising in tort, joint 1102(1)(c). liability for other claims). ENDNOTES 14. KRS § 362.1-303(4)(B). 24. KRS § 362.1-306(2). Accord KRS § 15. KRS § 362.1-121(1). 362.230. 1. KRS § 362.1-1202. 16. KRS § 362.1-121(1). 25. KRS § 362.220(2). See also Rut- 2. KRS § 362.150. 17. KRS § 362.1-122. As such, the part- ledge & Hester, Practical Guide to 3. 43 BUS. LAW. 121 (November, 1987). nership, while no longer a limited Limited Liability Partnerships, 5 4. See generally Carter G. Bishop, The liability partnership, remains a valid STATE LIMITED LIABILITY COMPANY Limited Liability Partnership partnership that may carry on the full AND PARTNERSHIP LAWS (Arthur J. Amendments to the Uniform Partner- range of business activities, and it is Jacobson, Scott E. Ludwig, Elizabeth ship Act (1994), 53 BUS. LAW. 101 not constrained to only those appro- S. Miller and Thomas E. Rutledge, (1997). priate to dissolution and winding up. eds. (Aspen 2006)). 5. For commentary generally on RUPA, Contrast KRS §§ 271B.14-210(3); 26. KRS § 362.1-306(3). see generally ROBERT W. HILLMAN, 275.300(2) (administratively dis- 27. KRS § 362.1-306(4).

January 2007 Bench & Bar 27 28. KRS § 362.1-1204(2). KyUPA part- Duty of Care Standard in Unincor- ify the fiduciary obligations among nerships that have elected LLP status porated Business Organizations, 94 the partners. by registering under KRS § 362.555 KY. L. J. 451 (2005-06). 41. KRS § 362.1-1102. Foreign LLPs may continue to do so, and KyUPA 37. KRS § 362.1-201(1). also may qualify in Kentucky under partnerships may elect LLP status 38. KRS § 362.1-103(2). KRS § 362.585. with a KRS § 362.555 filing even 39. KRS § 362.1-103. 42. KRS § 362.1-108. Accord KRS §§ after July 12, 2006. 40. For example, UPA § 18 (KRS § 271B.1-200; 275.045 29. KRS § 362.1-114(1). Accord KRS § 362.235) expressly states that the 43. KRS § 362.1-110. Accord KRS §§ 362.565(2). See also KRS § 362.1-116. rights and duties of the partners in 271B.1-230; 275.060. 30. KRS § 362.1-114(2). relation to the partnership “shall be 44. KRS § 362.1-112. Accord KRS §§ 31. KRS §§ 362.1-905 through 362.1- determined, subject to any agreement 271B.1-260; 275.075 908. Prior law allowed a partnership between them.” In contrast, UPA § 45. KRS § 365.015. to convert into a limited liability 20 (KRS § 362.245), regarding the 46. See generally Maryellen B. Allen company (see KRS § 275.370), but obligation to provide information, is and Thomas E. Rutledge, The 2006 not to merge into another partnership silent regarding the ability to modify Amendments to the Assumed Name or other business entity. the obligation by agreement. In re Statute: The Ongoing Task of Mod- 32. KRS § 362.1-902. Estate of Bennett, 205 N.Y.S.2d 50 ernization and Clarification, 70 33. KRS § 275.370. (1960), involved a permissible modi- BENCH & BAR 62 (May, 2006). 34. Contrast RUPA § 404. fication of the rule of UPA § 25(b) 47. KRS § 365.015(1)(b)2. 35. KRS § 362.1-404(1) (“The fiduciary (KRS § 362.270(2)) despite the fact 48. KRS § 365.015(1)(b)1. duties … include ….”) (emphasis that the provision did not expressly 49. KRS § 365.015(1)(b)3. added). provide for its modification. 50. KRS § 365.015(1)(b)1. 36. KRS § 362.1-404(3). See also J. Labovitz v. Dolan, 545 N.E.2d 304, 51. KRS §§ 365.015(1)(b)2, William Callison, “The Law Does 310 (Ill. App. 1989) involved a court 365.015(1)(b)3. Not Perfectly Comprehend….”; The not accepting the ability, in the con- Inadequacy of the Gross Negligence text of a general partnership, to mod-

ADVANCING THE PROFESSION, JUSTICE & THE RULE OF LAW CHARTING KENTUCKY’S COURSE The 2007 KBA Annual Convention

June 20-22 Louisville

Convention updates available at www.kybar.org

28 Bench & Bar January 2007 BOOK REVIEW Business and Commercial Litigation in Federal Courts

By Sheryl G. Snyder

ny lawyer who has participated in a I perused a few in which I had recent Searchable databases, which simultane- Abook writing project with a bar asso- experience, such as fraudulent joinder, ously facilitate the search for responsive ciation group must stand in awe of Robert enforcing venue selection and arbitration electronic documents while containing L. Haig’s accomplishment. With the clauses, class certification, torts of compe- the scope of the search to a reasonable recent publication of the Second Edition tition, electronic discovery and appeals. I key word vocabulary, should be consid- of BUSINESS AND COMMERCIAL LITIGATION found each chapter to be thoroughly ered by sophisticated corporate clients. IN FEDERAL COURTS (Thomson/West researched, cogently analyzed, succinct but The authors encourage an early meeting 2006), Mr. Haig, a litigator at Kelley comprehensive, and clearly written. Each of counsel at which “mutuality of inter- Drye & Warren, and his 199 co-authors chapter includes a section on strategies and ests can help foster creative and benefi- have produced a definitive treatise for objectives, and excellent practice pointers. cial agreements regarding the scope of business litigators. In nine volumes, with For example, the chapter on federal electronic discovery . . . [such as] agree- 96 chapters, 16 new and 80 updated, the appellate practice, written by Stephen R. ments among the parties that inadvertent Section of Litigation of the ABA has Kaye and his colleagues at Proskauer productions of privileged documents will given practitioners a thorough treatise Rose, contains all the nuts-and-bolts, and not effect a waiver of privilege, agree- that is at once scholarly and chock full of rules and procedures, for practicing in the ment on the use of a common search practical tips. federal appellate courts. But it also con- strategy for electronic documents, agree- Each chapter is written by one of the tains a section entitled “The strategy of ments on key word terms to be used, premier law firms in the country, together the appeal: formulating an appellate game agreements on the use of neutral vendors with 17 federal District and Circuit Judges, plan,” in which the authors correctly or discovery experts to assist the process giving practical advice that will be useful instruct that an appeal requires a strategy and agreements regarding the form of to young lawyers conducting research as just as much as initial litigation strategy production.” And, as litigants are still rue- well as experienced lawyers counseling and trial strategy. The authors opine that fully learning every day, “files or data clients and strategizing litigation. “[t]he appellate brief is, of course, the pri- deleted by the user from computer hard Each chapter begins with research ref- mary vehicle for executing counsel’s drives and disks still exist in complete or erences to the applicable West key num- strategic game plan.” They observe that, residual form until fully overwritten and bers, the A.L.R. annotations, treatises and while the appellate advocate occasionally may be reconstructed in some instances.” a bibliography of law review articles, a wins the case with a stellar oral argument, There follows an excellent overview of significant timesaver for the researcher. “there is considerable truth to the view cost-shifting for discovery of deleted data Most chapters include a section that that cases are most often won in the and reasonable standards for preserving contains checklists, forms, jury instruc- briefs but can sometimes be lost in oral back-up tapes. This chapter is a thorough tions and similar practice aids. In that argument.” There follows a very good introduction to the topic and a good sum- sense, the treatise is a compendium of the section on brief writing and a section on mary of the present state of the art. past efforts files of litigators from some delivering a persuasive oral argument, A separate index includes tables of the world class law firms. which properly focuses upon preparation jury instructions, forms, laws and rules, The heart of each chapter is an in for answering questions from the bench. and cases cited in the treatise. The nine depth analysis of that chapter’s topic, The chapter devoted to that latest “hot volume set, with a CD-ROM containing with extensively footnoted authorities. topic,” discovering electronic informa- the forms and jury instructions, costs The topics range from basic procedural tion, is authored by Jonathan M. Red- $960. All royalties go to the ABA Section issues such as jurisdiction and venue, to grave of Jones Day, the Editor-in-Chief of of Litigation. ■ customary practice issues such as discov- the “Sedona Principles,” and Judge Shira ery, experts, jury selection and evidence, A. Scheindlin of the Southern District of Sheryl G. Snyder is a to areas of substantive law such as New York, author of the Zubulake opin- member of Frost Brown antitrust, securities, director and officer ions. This chapter understandably empha- Todd LLC in Louisville. liability, patent, trademark and copyright, sizes the client’s duty to preserve elec- He has litigated business franchising and products liability. As one tronic information, and the corollary disputes in several U.S. who has retained the habit from law importance of counseling clients to create District Courts and has school of reading an overview before records and information policies that con- argued in six U.S. Courts of Appeals. delving into the cases, these mini-treatises template electronic discovery, including Mr. Snyder served as KBA President in are very useful tools. effective litigation hold procedures. 1989-90. January 2007 Bench & Bar 29 EFFECTIVE LEGAL WRITING Expletives: Usurpers of Space and Emphasis By Barbara McFarland

ow that I have your attention, let me to work hardship on a particular in the tension between the twin Nfirst admit that I refer not to expletives litigant in order to comply with goals of judicial efficiency and as in “[expletive deleted]” but as in the “it the dictates of the final judgment fairness, which are difficult to [verb]” and “there [verb]” constructions rule. The result has been that the reconcile in most cases. . . .These that run rampant in much legal writing. goal of efficient judicial admin- compromises have doubtfully Most of us probably already edit out the istration has often given way to furthered either goal, in fact.3 obvious ones, the “it is important to point the competing goal of justice to The second “it is” construction was out that” start to a sentence, or the “it is a particular litigant. It is doubt- paired with a verb in passive voice - “to unlikely that a court will find” in a conclu- ful that these compromises have, reconcile” - and had no stated subject, so sion. These catch our eye on a second draft in fact, furthered either goal.2 it was relegated to a dependent clause.4 and fall victim to the delete key.1 Some As the title of this article suggests, the The first and third of the constructions authors, however, are seemingly unaware main problem with such constructions is have been replaced with the true subject how inert their writing becomes when they that they usurp the position of the true sub- and verb of the sentence. use these constructions: ject and verb of the sentence. Each sen- A second problem with the overuse of tence that begins with the word “it” in the expletives is that they make writing It is obvious that the final judg- subject slot has a true subject that is either wordier than it needs to be, which is ment rule is not working as relegated to a position of little emphasis or never a good result in legal writing. intended. The root of the mal- omitted from the sentence entirely. Thirteen words in the original version of function lies in the tension Possible revisions of these sentences the first sentence have been reduced to between the twin goals of judi- would result in the following passage: ten; ten words in the second sentence cial efficiency and fairness. It is containing the “it is” construction have difficult in most cases to recon- The final judgment rule is obvi- been reduced to an eight-word clause; cile the two. Courts and legisla- ously not working as intended. and, twelve words in the final sentence of tures have often been unwilling The root of the malfunction lies the paragraph have been cut to nine. Not a substantial reduction in words, to be sure, but a worthwhile one in terms of clarity and concision. The third negative effect of such con- structions is their needless profusion of forms of the verb “to be,” which make writing flaccid. No action takes place; rather, everything is simply in a state of being. However, most legal writing describes events and actions. Use active verbs, placed in the verb slot of each sen- tence, to make your writing active and interesting. Having completed the examination of the easy example,5 I will turn to my greater concern, the more subtle exple- tives that slip past all but the most vigilant of editors or form such an integral part of a writer’s style that they go completely unchallenged, as in the following passage. The point of the question is not to second-guess a defen- 30 Bench & Bar January 2007 dant’s actual decision; if it is rea- their numbers, the cure is a relatively Problems, 70 Kentucky Bench & sonably probable that he would simple one. Use your word processor’s Bar 23, 24 (Jan. 2006). As many stu- have gone to trial absent the locate or find function on something you dents seem to adopt these construc- error, it is no matter that the have written recently to look for the tions immediately after starting law choice may have been foolish. words “it” and “there.” school, and carry the habit into prac- The point, rather, is to enquire Does every “it” have an antecedent, a tice, an expansion of the topic whether the omitted warning noun to which the “it” refers?7 If not, try seemed warranted. would have made the difference to reword the sentence; what is the true 2. Robert Martineau, Cases and required by the standard of rea- subject that should be placed into the sub- Materials on Appellate Practice and sonable probability; it is hard to ject slot of the sentence or clause and Procedure 202 (West 1987). Professor see here how the warning could what verb would best express the action Martineau is a former colleague who have had an effect on being described? In looking at your uses asked me to edit a chapter in a later Dominguez’s assessment of his of the word “there,” each should refer to text; when informed of the tendency strategic position. And even if a place to which you are referring back; 8 to use expletives, he was quick to edit there were reason to think the if one does not, reword the sentence ask- warning from the bench could ing yourself those same questions. Professor Barbara have mattered, there was the Your writing will be clearer, more McFarland is a new plea agreement, read to active, and less wordy, if you eliminate or addition to the fac- Dominguez in his native reduce your use of expletives. At first, the ulty of the Chase Spanish, which specifically editing will take a bit of time, but as you College of Law at warned that he could not with- become accustomed to the task, you will Northern Kentucky draw his plea if the court refused find you simply delete the expletive University, after ■ to accept the Government’s rec- before it even reaches the page. spending more than ommendations.6 ENDNOTES twenty years teaching legal research Clearly, if your writing is rife with 1. Devoted readers of this column and writing at the University of expletives, you are in good company. If, should have learned to edit these out Cincinnati College of Law. She is however, you see the benefit to removing last January, as they were Tip #5 in Acting Director of the Academic such constructions, or at least to reducing Susan Kosse’s Common Writing Support Program as well.

January 2007 Bench & Bar 31 them out of his writing. ture on the contract means that you presence at the Holiday Inn clarified 3. The revision of the third sentence is accept every term and provision it that he was only there at the behest neither clear nor satisfying. The true contains.” “Contract” is the of his friend and co-defendant.” rewrite would probably begin with “I antecedent for the pronoun. “Holiday Inn” is the antecedent for doubt,” because the author was 8. “Defendant’s testimony regarding his the word “there.” expressing an opinion in this sen- tence. In such sentences, if your opinion is appropriate, state it as such: “I doubt that such compromis- es have, in fact, furthered either goal.” If not, rephrase the sentence: “In fact, these compromises have furthered neither goal.” 4. This is referred to as a “truncated” passive and may be the subject of a future column. 5. Although the sample used only one of the two most common expletives, the “there is” forms are just as com- mon and just as easily excised: • there is no evidence to support plaintiff’s claim that = no evidence supports plaintiff’s claim • there is no reason for the court to refuse = the court should • there are four elements to the plain- tiff’s claim = plaintiff must prove four elements to prevail on the claim • there is a shift in the burden to the defendant = the burden shifts to the defendant 6. U.S. v. Dominguez Benitez, 542 U.S. 74, 85 (2004)(Souter, J.). 7. In the following example, the “it” refers to the contract: “Your signa- Did A Broker’s Big Promises Lead to Big Losses?

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Charles C. Mihalek, P.S.C. Lexington, Kentucky Charles C. Mihalek, Esq. Steven M. McCauley, Esq. Lawyers dedicated to representing individual investors against securities broker-dealers.

32 Bench & Bar January 2007 SHOP TALK

PowerPoint, Power Cords, Power Windows, etc. By Michael Losavio

Power corrupts, right? technologies? trial and pre-trial presentations. Jay What about PowerPoint? The debate over these new presentation Lambert, a capital litigator for the Simple, affordable media tools have technologies in legal practice is heated. Louisville Public Defender’s Office, uses made high-quality, high-tech presenta- Some feel they are wastes of time while CaseMap and TimeMap to build their tions available from the lawyer’s desk others glorify the power of these media. case with concise, succinct style and then top. As easy as power For some it’s a mixed bag of benefits and prepare exhibits and examples for the windows! detriments that must be tuned to the facts jury. These technologies are “the wave of Microsoft’s of a case. the future,” but a lawyer must strike a PowerPoint shuttered Heather Watkins, legal assistant to balance between effective use and being the media production lawyer Thomas Clay, promotes their overwhelmed by the available features. offices of many major extensive and successful use of visual He recommends checking out www.trial companies and let even media technologies, including a mobile max.com for a free trial version of one low-level staff do set of terminals for jury viewing. Yet as such technology. glitzy electronic slide one lawyer has noted, it takes only one Paranoid that I am, I have used Michael Losavio shows. Digital produc- technical glitch to destroy the flow of PowerPoint to prepare opening statements. tion software helps your case and your credibility with the I then copied to non-electrified poster with animation and management of digi- judge and jury. For want of a power cord, board. The outline structure of PowerPoint tal video. Desktop digital editing suites the battle may be lost. helped organize my thoughts for a more let you edit and add all manner of audio As to presentation, some lawyers cyni- straight-forward pitch for the jury. and visual features to your production. cally see proof of Tufte’s premise in Several Kentucky law firms use Courts accommodate the use of such badly overdone PowerPoints at trial by PowerPoint to prepare and pitch their set- technologies. The U.S. District Court in eager lawyers who wanted to be first in tlement packages to opposing counsel Louisville has a fully wired courtroom their courthouse to use it. See, e.g., Rick and claims adjusters, finding the combi- with monitors for each juror, counsel and Friedman’s “Pondering PowerPoint: Not nation of oral and visual presentation the judge. Counsel use a central island In My Trial Toolbox,” 29 AK Bar Rag very effective. In at least one case, the workstation to pipe the information to 11, Autumn, 2005. presentation was given to the adjuster to, those monitors. Court staffers Vanessa Others effectively use PowerPoint and in turn, secure approval for greater settle- Carroll and Ross Anderson work directly other visual technologies, such as docu- ment authority. with counsel to familiarize, train and ment cameras, e.g., ELMO, to tell the I think this boils down to the right use practice with the system prior to trial. story and keep the jurors’ attention. of the right tool at the right time. But the In the middle are those who use temptation to overkill is just so great. Does this better tell our client’s story? PowerPoint and other concept organiza- Lawyer Stephen Groo, a consultant on Or is it that, as Edward Tufte put it, tion software to prepare and guide their trial presentation technologies, writes “Power Corrupts. PowerPoint Corrupts Absolutely.” His 2003 Wired article1 argued these technologies ruined rhetoric rather than helped it, noting “… the PowerPoint style routinely disrupts, dom- inates, and trivializes content” as with Peter Norvig’s The Gettysburg Address Powerpoint, http://norvig.com/ Gettysburg/, which took great American oration2 into the Microsoft world. But don’t clients expect some sizzle in our advocacy? Haven’t lawyers put just as many jurors to sleep without these

January 2007 Bench & Bar 33 there is “…unfortunately, a tendency to If we plan to use these new technologies Microsoft Corporation. CaseMap and overeat.”3 For Groo, these technologies for advocacy, we will need to practice TimeMap are the trademarks or registered are just part of litigator’s toolkit and, them, too. It will take special effort, as trademarks of their holder. ■ when used appropriately, are immensely most of us don’t do slideshows or movies powerful. When too many features, bells every day, but it’s a needed effort. ENDNOTES and whistles are thrown together, the Absent that, we may need to hire con- story gets lost along with the case. sultants or keep a look-out of new law California attorney R. Rex Parris spent grads with proven tech expertise. The risk 1. http://www.wired.com/wired/archive/ around $60,000 on presentation consult- is that we may not know what precisely 11.09/ppt2.html, last visited December ants and focus groups to build a we need. 3, 2006. PowerPoint program for his client’s per- Our obligation for competency extends sonal injury case. The product they devel- to the competent use of PowerPoint, 2. Abraham Lincoln, Gettysburg Address, oped went “beyond bullet points” to a movie makers or whatever we choose. http://www.americanrhetoric.com/ sequence of pictures and single-word That includes having a back-up plan for speeches/gettysburgaddress.htm. slides. Parris focused on those key words tech failure. And it may be best to just throughout his case and then used the use the professionally designed templates 3. Stephen W. Groo, “Every Picture one-word slides with pictures in that come with PowerPoint or are avail- Should Tell A Story,” The PowerPoint to link his entire case to- able on-line to develop a presentation, Metropolitan Corporate Counsel, gether. The jury returned a $15.7 million instead of just winging it. verdict in contrast to the $1 million settle- Otherwise, it may be best to stand in December, 2005 Northeast Edition. ment offer made at trial.4 front of the mirror. There we can try to 4. Nora Lockwood Tooher, “Consultants Parris’ experience details that it’s the match Lincoln with the tried and true key to $15 million verdict,” St. Louis story that matters. He sought counsel on power of the human voice and the human how best to tell that story without mud- condition. Daily Record/St. Louis Countian, dling it in the glitz to his client’s benefit. PowerPoint and Microsoft are the July 22, 2006. We practice our written and oral skills. trademarks or registered trademarks of

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34 Bench & Bar January 2007 Proposed Amended Regulations of the Attorneys’ Advertising Commission, pursuant to SCR 3.130-7.03(5)(a)

As approved by the it charitable organizations or groups, disclaimer “THIS IS AN ADVERTISE- KBA Board of Governors either as a member or officer; MENT.” In addition, SCR 3.130-7.25 November 17, 2006 2. Previous employment positions, authorizes the Commission to require the including governmental and non- disclaimer “THIS IS AN ADVERTISE- Publisher’s Note: governmental employment; MENT.” This Regulation No. 3 clarifies Supreme Court Rule SCR 3.130 con- 3. Enlargements of business cards that the relationship between SCR 3.130- tains the Kentucky Rules of Professional are not themselves advertisements 7.09(3) and SCR 3.130-7.25. Conduct (KRPC) which include rules on under SCR 3.130-7.02(1)(a), but if lawyer advertising. KRPC 7.03 establish- the advertisement includes reference 1. SCR 3.130-7.09(3) does not apply to es an Attorneys’ Advertising Commission to a website, the website is consid- every written, recorded or electronic (Commission) which has general respon- ered a separate advertisement; communication from a lawyer, sibilities for implementing the lawyer 4. Listings of immediate family, such including emails. Rather, it applies advertising rules. In discharging its as spouses, children and parents only to any such communication that responsibilities, the Commission is given 5. Information identifying the offices solicits “professional employment the authority to issue and promulgate reg- of the firm in several jurisdictions or from a prospective client known or ulations subject to prior approval by the cities within or without the Com- reasonably believed to be in need of Board of Governors. When proposed reg- monwealth of Kentucky; legal services in a particular matter, ulations are issued, members of the Ken- 6. The length of time any particular and with whom the lawyer has no tucky Bar Association are entitled at least law firm of lawyer has been in prac- family or prior professional relation- sixty (60) days advance notice and an tice; ship.” The term “particular matter” opportunity to comment. The Commis- 7. The types of information listed in includes any identifiable type or cat- sion has promulgated the following SCR 3.130-7.05(1)(a)(6-13) may egory of legal matter as well as any amendments to the enumerated regula- include both past and present partici- tions based on amendments to the pation or status, if the advertisement Supreme Court Rules which were effec- discloses, when necessary, that the tive January 1, 2006. The Board of Gov- lawyer is no longer a participant or Need help with a ernors approved these amended regula- no longer holds that status; tions on November 17, 2006, subject to 8. A photograph of the lawyer with no firearms collection? review and consideration of comments accompanying scene in the For 32 years, we have bought, sold and from the membership. Members wishing background of the photograph; serviced all types of new, used and col- to comment on these proposed regula- 9. Words such as “congratulations” or lectable firearms. We are licensed, bond- tions must do so in writing. Written com- “good luck,” when used in program ed and insured. ments must be sent no later than April 1, advertisements for charitable or edu- We also offer: 2007, to the Attorneys’ Advertising Com- cation functions; APPRAISAL mission, c/o KBA Executive Director, 10. The designation of a law firm as “A AUTHENTICATION 514 West Main Street, Frankfort, KY debt relief agency” as required by 40601-1812. the Bankruptcy Abuse Prevention EXPERT TESTIMONY and Consumer Protection Act, [11 CONSIGNMENT SALE AAC Regulation No. 2: USC § 528(b)(1)(a)(b)]. ESTATE SETTLEMENT PERMISSIBLE CONTENT OF 11. Such variations on the items contained STORAGE/MAINTENANCE ADVERTISEMENTS SUBMITTED herein and in SCR 3.130-7.05(1) WITHOUT A FEE (a)(1-25) that are minor or technical in Charles B. Layson • T. Rees Day Pursuant to SCR 3.130-7.05(1)(a)(26) nature and may be reviewed and 2263 Nicholasville Road the Commission may specify additional approved by the designee of the Com- Lexington, KY 40503 information that may be contained in mission named herein. 859.276-1419 • 859.278.0838 fax advertisements that are permitted to be www.am-firearms.com submitted without a fee. The following AAC Regulation No. 3: additional information may be included COMMUNICATIONS THAT in any of these advertisements: REQUIRE THE DISCLAIMER “THIS IS AN ADVERTISEMENT” 1. Participation by the lawyer in com- SCR 3.130-7.09(3) requires that cer- ANTIQUE & MODERN FIREARMS munity groups or clubs and nonprof- tain types of advertisements contain the “Dealers in Quality Arms Since 1974” January 2007 Bench & Bar 35 specific case of that consumer. An sion’s review, the advertisement may until three copies of the video, digital advertisement that is within the be submitted to the Commission by image or audiotape advertisement are scope of SCR 3.130-7.09(3) must the designee. provided for review. include the disclaimer “THIS IS AN 2. If the Commission approves a tran- ADVERTISEMENT.” AAC Regulation No. 5: script subject to a review of the video 2. Even if an advertisement does not TIME PERIOD FOR REVIEW or digital media, the thirty-day time constitute a solicitation of profes- WITH ADVISORY OPINION period set forth in SCR 3.130-7.06(1) sional employment within the scope FOR BROADCAST MEDIA will commence upon the Commis- of SCR 3.130-7.09, the Commission sion’s receipt of the three copies of may require the disclaimer “THIS IS 1. SCR 3.130-7.06(1) allows the Com- the video or digital media. AN ADVERTISEMENT.” pursuant mission a period of thirty days to to SCR 3.130-7.25, if the Commis- consider an advertisement submitted AAC Regulation No. 6: sion concludes that the advertise- for an Advisory Opinion. The thirty- REQUEST FOR HEARING; INFOR- ment may not be perceived by the day period runs from the date of sub- MAL RESOLUTION PROCEDURE consumer as a quest for clients mission of the advertisement, tran- Deleted because of its format, manner of script and fees. If a transcript is pre- presentation or medium. sented without three copies of the AAC Regulation No. 7: video or audio tape, the Commission HEARING PROCEDURE AAC Regulation No. 4: will attempt to review and respond to Deleted DELEGATION OF the submission within thirty days, but ADMINSTRATIVE TASKS the thirty day period set forth in SCR AAC Regulation No. 8: Supreme Court Rule 3.130-7.03 provides 3.130(7.06) will not begin to run and TIME FOR FILING APPEAL that the Commission may delegate to an an Advisory Opinion will not be pro- Deleted employee of the KBA the authority to vided regarding the advertisement review advertisements submitted under SCR 3.130-7.05(2). The Commission hereby delegates this function to the advertising paralegal, with the supervi- sion of the Office of Bar Counsel and the NOTICE OF PROPOSED REVISION Director, to review such submissions in TO LR 40.1 the limited circumstances as follows: OF THE JOINT LOCAL RULES 1. The Commission has determined the OF THE FEDERAL DISTRICT COURTS IN KENTUCKY advertisement to be noncompliant and the lawyer is making a resub- mission to bring the advertisement NOTICE is hereby given that the Joint Local Rules Commission has into compliance. 2. If a submission is determined to forwarded to the Judges of the United States District Courts for the East- have been made without the proper ern and Western Districts of Kentucky a revised LR 40.1 of the Joint Local fee then the KBA would be author- ized, through its designee, to inform Rules of Civil Practice for the federal courts in Kentucky. The Judges of the attorney that the submission the United States District Courts in Kentucky will be considering the fol- does not qualify without a fee, or that the amount of the fee is incor- lowing proposed Joint General Order for adoption after publication of this rect, and should be submitted under SCR 3.130-7.05(2) with the proper Notice in the Kentucky Bench & Bar. On or before March 31, 2007, the fee to the Commission; bar and public are invited to submit comments and/or suggestions, in writ- 3. Advertisements submitted for review which, on their face, comply with ing, with respect to the proposed revision of the Joint Local Rules to either the rules and regulations of this of the United States District Court Clerk’s Offices or to Douglas L. Commission and contain no issues requiring the individual attention of McSwain, Chair of the Joint Local Rules Commission, at the law firm of the Commission; Sturgill, Turner, Barker & Moloney, PLLC, 155 E. Main St., Lexington, 4. If its designee determines a question exists concerning compliance with KY 40507. these regulations or the Supreme Court rules that require the Commis-

36 Bench & Bar January 2007 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN AND WESTERN DISTRICTS OF KENTUCKY

JOINT GENERAL ORDER NO. ______-E.D.Ky. JOINT GENERAL ORDER NO. ______-W.D.Ky.

* * * * *

Pursuant to LR 83.14 of the Joint Local Rules of the Eastern and Western Districts of Kentucky, and pursuant to the author- ity granted by Rule 83, F.R.Civ.P., and upon recommendation of the Joint Local Rules Commission, the Judges of the Eastern and Western Districts hereby ORDER that the following amendments be made to the Joint Local Rules:

1. A new subsection (b) is created to LR 40.1 to read as follows:

(b) Reassignment of Cases; Motion to Reassign Related Cases. A case may be reassigned to another judge within the district upon the Court’s own motion, in the interests of justice, for reasons stated in an order of reassignment. A party may file a motion to reassign a case if it is related to another case pending in the district. Cases may be considered related if they meet the requirements of F.R.Civ.P. 42(a), or if a substantial savings of judicial time and resources would result if they were handled by the same judge. The Court will determine a motion to reassign on the basis of whether reassignment is in the interests of justice.

2. Current subsection (b) to LR 40.1 is re-lettered to (c);

3. The new LR 40.1 shall read as follows:

LR 40.1 ASSIGNMENT OF CASES AMONG JUDGES AND CALENDARING (a) Assignment of Cases Among Judges. Cases are assigned among the various judges within a district in a manner established by the Court’s general order. Unless otherwise ordered, cases are calendared for trial or other appropriate proceedings by the assigned judge.

(b) Reassignment of Cases; Motion to Reassign Related Cases. A case may be reassigned to another judge within the district upon the Court’s own motion, in the interests of justice, for reasons stated in an order of reassignment. A party may file a motion to reassign a case if it is related to another case pending in the district. Cases may be considered related if they meet the requirements of F.R.Civ.P. 42(a), or if a substantial savings of judicial time and resources would result if they were handled by the same judge. The Court will determine a motion to reassign on the basis of whether reassignment is in the interests of justice.

(c) Judge Not Available. If it appears that any matter demands immediate attention and the judge to whom the case has been assigned is not or will not be available, the Clerk—upon request—must determine if another judge is available who will consent to hear the matter.

Copies of this Order shall be affixed to every copy of the Courts’ Official Rules Book distributed by the Clerks’ Office. Upon the next printing of the Rules Book, all changes in Joint Local Rules as set out in this Order shall be included in the new Rules Book. Copies of this Order shall be made available to the various publishing companies that publish the Joint Local Rules of the Eastern and Western Districts of Kentucky and to the public upon request. The changes noted in this Order shall take effect upon entry of this Order.

IT IS SO ORDERED: Hon. Joseph M. Hood, Chief Judge Hon. John G. Heyburn, Chief Judge U.S. District Court U.S. District Court Eastern District of Kentucky Western District of Kentucky

Hon. Jennifer B. Coffman, Judge Hon. Charles L. Simpson, III, Judge Hon. Karen K. Caldwell, Judge Hon. Thomas B. Russell, Judge Hon. Danny C. Reeves, Judge Hon. Joseph H. McKinley, Jr., Judge Hon. David L. Bunning, Judge Hon. Gregory F. Van Tatenhove, Judge January 2007 Bench & Bar 37 Following is a list of TENTATIVE upcoming CLE programs. REMEMBER circumstances may arise which result in program changes or cancellations. You must contact the listed program sponsor if you have questions regarding specific CLE programs and/or registration. ETHICS credits are included in many of these programs. Some programs may not yet be accredited for CLE credits– please check with the program sponsor or the KBA CLE office for details.

JANUARY 6 Mediation Do’s and Don’ts that Every Plaintiff Attorney Should Kentucky Bar Association 23 Strategic Planning for Know CLE Office • (502) 564-3795 Contingent Fee Law Practices Kentucky Academy of Trial AOC Juvenile Services Kentucky Academy of Trial Attorneys Lyn Lee Guarnieri • (502) 573-2350 Attorneys 7 Guardian Ad Litem Training 24 Healthcare & Insurance CLE Louisville Bar Association Fayette County Bar Association Seminar Administrative Office of the Courts Lisa Maddox • (502) 569-1361 8 Insurance Coverage Pertinent to 24 Environmental Law KYLAP Construction Projects Cincinnati Bar Association Anna Columbia • (502) 564-3795 Kentucky Bar Association - 25-26 New Lawyer Training Construction & Public Contract Kentucky Academy of Trial Attorneys (KATA) Law Sections Cincinnati Bar Association Ellen Sykes • (502) 339-8890

30 Mastering PowerPoint - 8 Electronic Service of Pleadings Chase College of Law Objectifying the Plaintiff’s Case and Discovery Jennifer Baker • (859) 572-1461 to Overcome Jury Bias Kentucky Academy of Trial Kentucky Academy of Trial Attorneys Kentucky Department of Public Advocacy Attorneys 9 Advanced Estate Planning Jeff Sherr or Lisa Blevins Institute (502) 564-8006 ext. 236 FEBRUARY Cincinnati Bar Association AOC Mediation & Family Court Services 1-2 11th Biennial Business 14 Women Lawyers Association Malissa Carman-Goode •(502) 573-2350 Associations Law Institute Lunch Meeting UK CLE Fayette County Bar Association UK Office of CLE Melinda Rawlings • (859) 257-2921

Mediation Center of the Institute for Violence Prevention Louis Siegel • (800) 676-8615

Northern Kentucky Bar Association Christine Sevendik • (859) 781-1300

Fayette County Bar Association Mary Carr • (859) 225-9897

Cincinnati Bar Association Dimity Orlet • (513) 381-8213

Mediation Center of Kentucky Tami Bowen • (859) 246-2664

Access to Justice Foundation Nan Frazer Hanley • (859) 255-9913

Administrative Office of the Courts Malissa Carman-Goode (502) 573-2350, Ext. 2165

38 Bench & Bar January 2007 14 Advertising Law from a 22 Pre-Suit Discovery, Investigation 7 Healthcare Law Litigation Perspective and Mediation Cincinnati Bar Association Cincinnati Bar Association Kentucky Academy of Trial Attorneys 7 Guardian Ad Litem Training 15 Handling Economic Damages in Seminar Injury and Wrongful Death 28 ERISA Update, After the Administrative Office of the Courts Cases Sereboff Decision Kentucky Academy of Trial Kentucky Academy of Trial 8 Expert Testimony in Civil Cases Attorneys Attorneys - The Future of Daubert & Frye Kentucky Academy of Trial 20 Recent Developments in Class Attorneys Action Litigation MARCH 9 Domestic Relations Institute Kentucky Academy of Trial Cincinnati Bar Association Attorneys 1 Environmental Law Cincinnati Bar Association 14 Municipal / Local Government 21 Labor & Employment Law CLE Law Fayette County Bar Association 2 Tort & Insurance Practice Cincinnati Bar Association Cincinnati Bar Association 21 Workers’ Compensation 14 Theming Your Case and Closing Cincinnati Bar Association 6 Current Perspectives in Medical to Optimize Damages - Toxic Causation Torts 21 Domestic Relations Practice Kentucky Academy of Trial Administrative Office of the Courts Section Meeting Attorneys Fayette County Bar Association 16 Construction Law 6 FCBA & Kentucky Chapter Cincinnati Bar Association 22 The ABC’s of Tax Law Federal Bar CLE Cincinnati Bar Association Fayette County Bar Association

January 2007 Bench & Bar 39 CASA Program for Bullitt County, Inc. KENTUCKY Shepherdsville The CASA (Court Appointed BAR Special Advocates) Program for Bullitt County is a non-profit FOUNDATION organization that recruits, trains and supports volunteers to advocate for children who are in the court sys- tem due to parental abuse and neg- Helping lect. Oftentimes both social work- ers and Guardians Ad Litem are assigned to numerous cases, and Those are unable to devote full attention to each individual case to know fully what is happening in the life of the child. This is where the Helping CASA volunteer fills the void. Through their independent inter- views and direct observations, the Others CASA volunteer is able to make a thorough assessment of the child’s situation and in turn make recom- mendations to the judge on what is in the best interest of the child. CASA volunteers gather infor- mation from caseworkers, Guardians Ad Litem, mental health professionals, agencies providing in-home services to the family, teachers, counselors, foster families, relative placements, other family members and, most importantly, the child. It is through this collaborative effort that CASA volunteers are able to form a better understanding of the life circumstances of each child and his or her family. The CASA volunteer prepares a court report for the judge. The main focus is to advocate for the safety of the child and for the child to be placed in a safe, permanent environment as quickly as possible where the child can thrive. The CASA volunteer monitors the case throughout its duration to ensure the safety and well being of the child. The CASA Program for Bullitt County received grant funding in the amount of $5,000 in June of 2006 from the Kentucky Bar Foundation and, as a result, this program trained nine new CASA volunteers during October and November. The new CASA vol- unteer training consists of educational speakers from various professions that relate to the work of a CASA volunteer and the court system. Since the CASA volunteer inter- acts with all parties involved in the case, as part of the training the volunteer is educated on the roles of all the diverse parties they will be working with. Currently there are 17 volunteers with cases serving 39 children. It is anticipated that the nine new CASA vol- unteers will be appointed to cases over the next few months. The Kentucky Bar Foun- dation grant was also the funding source for in-service training for the 17 current CASA volunteers. The Kentucky Bar Foundation’s support is helping to make a difference in the lives of those served by the CASA Program for Bullitt County. Family Nurturing Center Florence

The Kentucky Bar Foundation awarded a grant of $10,000 to the Family Nurturing Center in Florence to support its VISITS program, which provides supervised visitation services to children and families in the Northern Kentucky region.

40 Bench & Bar January 2007 school performance. They may be more likely to struggle with drug and alcohol abuse, teen pregnancy and juvenile delinquen- cy. The majority of families are referred by local court systems and attorneys. Reasons for referral include but are not limited to: divorce or separation decrees where there is a concern about a parent’s ability to provide for the safety and well-being of a child; allegations of abuse and neglect; assistance with reunifi- cation after a prolonged absence of a non-custodial parent; rec- ommendations from a custody evaluator; and active substance abuse or severe mental illness on the part of the non-custodial parent. While the vast majority of adults served are parents, the program has facilitated court ordered visitation with grandpar- ents or other non-custodial relatives. The VISITS program enhances the image of the legal system and helps to build trust in the system. If the court orders that vis- itation be supervised, but has no resources to offer, frustration with the courts and “the system” in general builds. Clients feel that they are in a “no-win” situation if they are mandated to a program that lacks the resources to help them. Clients are left with the choice of either violating a court order or not having access to their children. The program promotes the administration of justice by sup- porting the rights of children to have safe relationships with both parents and by supporting the rights of non-custodial par- ents to have access to their children. Without this program, a child’s physical and emotional well-being is jeopardized. The program, therefore, provides a critical resource to the courts and the legal profession. The Family Nurturing Center is a not-for-profit organization Without the support of the Kentucky Bar Foundation, the dedicated to ending the cycle of child abuse. It was the first non- availability of supervised visitation services would be com- profit organization in Northern Kentucky to provide supervised promised for hundreds of Northern Kentucky’s most vulner- visitation services, when the organization received a federal able families. ■ access and visitation grant in 1998. Increases in funding from the state allowed the program to grow significantly in 2004, making it the largest Yes! I wish to invest in my Bar Foundation as a Fellow. program of its kind in the area. This was then jeopardized when changes in funding threatened ■ Enclosed is my check for $1,250 representing full payment of to close this much needed program. Support from the Kentucky Bar Foundation, along with my Life Fellow Membership. the help of the Robert M. Butler Memorial Foun- dation and The Spaulding Foundation, has ■ Enclosed is my check for $300 and I pledge to pay $300 annu- allowed the Family Nurturing Center to continue ally for the next four years, for a total contribution of $1,500. to provide this vital resource in the Northern Ken- tucky region. Supervised visitation and access services are Name: ______designed to promote children’s rights to a healthy relationship with one or more parents. The pro- Address: ______gram provides a safe environment under the City/State/Zip:______supervision of qualified staff and volunteers for visiting with non-residential parents. The philos- Telephone/e-mail: ______ophy of the VISITS program is that children have a right and a need to healthy relationships Questions? Call the Foundation at 800-874-6582 or 502-564-3795. with both parents. Sometimes abuse, mental ill- ness, unexplained absences, hostile divorces, and Kentucky Bar Foundation, 514 W. Main Street, Frankfort, KY 40601-1883 substance abuse lead to great difficulty in build- Note: KBF is an IRC Section 501(c)(3) organization. ing healthy bonds. Studies show that children Contributions are tax-deductible to the full extent of the law. who are missing key relationships with parents often suffer in the areas of self-esteem and January 2007 Bench & Bar 41 Don’t go it alone ... Earn LIVE CLE credits with KBA Teleseminars

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January 9 Estate Planning in Prenuptial Agreements January 11 Quarterly Estate and Gift Planning Update January 16 Choice of Entity for Small & Medium Size Business, Part 1 January 17 Choice of Entity for Small & Medium Size Business, Part 2 January 23 UCC Issues in Real Estate Transactions January 30 Corporate Governance for Family Businesses

February 6 Your Largest Asset: An Estate Planning Guide to Your Personal Residence February 13 Uses of Life Insurance in Business Planning February 20 ADR in Estate Planning Disputes February 22 Choice of Entity for Nonprofits February 27 Ethical Issues in ADR Bar Association: Kentucky Profession the Through Education Advancing

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Salmon P.Chase the free territories, was a major cause of for the Sixth Circuit; Chase adjunct pro- the Civil War, and its consequences did fessor David Singleton, executive direc- College of Law not end there. The symposium will look tor of the Ohio Justice and Policy back at the legacy of this important case Center; and Chase professor John over the time that has passed up to the Valauri, symposium advisor. Each pan- present day along legal, historical, polit- elist will focus on a different aspect of Looking Back: the Legacy of the Dred ical, and social dimensions. It is being the Dred Scott decision. Scott Decision co-hosted with the National Judge Jones will discuss the case in The Northern Kentucky Law Review Underground Railroad Freedom Center general, and historical and contemporary will host its spring symposium, in Cincinnati and will be held at the implications. Dr. Alexander will discuss “Looking Back: the Legacy of the Dred Freedom Center’s Harriet Tubman historical implications on politics at the Scott Decision,” on Friday morning, Theater. time of the decision, and Singleton will March 2, 2007. No case that the Five panelists will be featured, discuss the contemporary problems with Supreme Court of the United States has including Dr. Roberta Alexander, former the Cincinnati school system. Professors ever decided has had a greater effect on professor and director of the Prelaw Graber and Valauri will focus on consti- American law, history, society, and race Program at the University of Dayton; tutional interpretations. relations than its 1856 decision in Dred Professor Mark Graber of the University Faith C. Isenhath is the spring sym- Scott v. Sandford. This decision, denying of Maryland School of Law; the posium editor for the Northern citizenship to African-Americans and Honorable Nathaniel Jones, former Kentucky Law Review. She can be overruling the exclusion of slavery from judge, United States Court of Appeals reached at [email protected]. Northern Kentucky Bar Foundation The Northern Kentucky Bar College of Law, the University of Foundation (NKBF) has generously Kentucky College of Law and the offered six scholarships to various law University of Louisville Louis D. students from Salmon P. Chase College Brandeis School of Law. The recipients In Memoriam of Law, the University of Kentucky must have graduated from a Northern College of Law and the University of Kentucky High School (Boone, Kenton, Louisville Louis D. Brandeis School of Campbell, Pendleton, Grant, Gallatin, Stuart E. Alexander, Jr. Louisville Law. The scholarship programs the Carroll or Owen County) and possess the NKBF offers annually are the Judge Judy highest GPA of all applicants. The Foster J. Collis Lexington West Scholarship, the A.J. Jolly Minority Bar Exam Scholarship is Scholarship and the Minority Bar Exam endowed to assist a final-year minority Leon M. Eichenholz Sebastopol, CA Scholarship. The Judge Judy West law student with his or her bar exam Scholarship was established in 1991 to expenses, which may be applied toward Anne Marie Mielech Southgate honor the late Judge Judy M. West, an any/all bar exam related expenses, includ- outstanding jurist and individual, and the ing pre-test training and/or additional Lora Salee Morris Louisville first woman appellate judge in the expenses incurred while preparing to take Commonwealth of Kentucky. This fund the bar exam. This award increased to Jane Frances Murray Hazard provides a $1000 award to a female law $1000 this year. The 2006 recipients for student from Salmon P. Chase College of each scholarship were as follows: Alfred C. Oliver Prospect Law entering her last year of school. Virginia Riggs from Chase College of Special consideration is given to a non- Law (Judge Judy West Scholarship), traditional or returning student. The recip- Christopher Cole from Chase College of Peggy Butler Sturgill Lexington ient must be a Kentucky resident who has Law (A.J. Jolly Scholarship), Joshua demonstrated high academic achievement Hitch from UK College of Law (A.J. Mark Bradley Terry Irvine and who, in the judgment of the Women Jolly Scholarship), Clair Parsons from U Lawyers Section of the Northern of L Brandeis School of Law and Henry Triplett Louisville Kentucky Bar Association, best exempli- Kenyatte Mickels from Chase College of fies the characteristics and attributes of Law (Minority Bar Exam Scholarship). Marlin M. Volz Davenport, IA Judge Judy M. West. The A.J. Jolly For more information about the scholar-

scholarship awards $500 to a first-year ship programs, please contact Christine John E. Wise Louisville KENTUCKY BAR NEWS law student from Salmon P. Chase Sevindik at [email protected].

January 2007 Bench & Bar 43 Small Firm Practice Section Undergoes Facelift Kentucky Sheriff’s Association KENTUCKY BAR NEWS After being dormant for several years, • Members may attend Section meet- Colonel John Aubrey, President-Elect the Small Firm Practice Section now has ings via telephone. a new lease on life. L. W. Myers has The Section has established commit- As a result of an amendment to KRS become Interim Chair and Andrew tees consisting of the following persons: 64.090(2) by the 2006 General Assembly, Friedman has become Vice Chairman. CLE Events Committee the Sheriff’s Fee for executing and Pending approval by the Board of Tom Blackburn, Chairman returning civil process will be forty dollars Governors, the Section has adopted By- Sandy Varellas ($40.00), effective January 1, 2007. laws changing its name to the Small Jim Thompson Firm Practice and Management Have an item for Section. The Section provides a forum Publications/Newsletter/ListServ for the exchange of ideas among solo Committee and small firm practitioners in Kentucky; Melissa McQueen, Chairman WHO, WHAT, informs its members about current rele- Jim Thompson vant issues concerning solo and small John Arnett WHEN & WHERE ? firm practice and management; and helps solo and small firm practitioners with Client Relations Committee their practice and office management. Steve Bolton, Chairman The Bench & Bar welcomes The new By-laws also provide: Jim Thompson • The term of office for the officers of brief announcements about the Section will be increased from As with most Sections of the KBA, one year to two years to provide membership is open to all KBA mem- member placements, promotions, continuity. bers. For more information or to join: relocations and honors. Notices • A departing officer will be replaced Contact Lori Alvey by a vote of the Members. (502) 564-3795 ext. 253 are printed at no cost and must • The title of “Vice Chairman” will ([email protected]) also be the “Secretary.” L. W. Myers be submitted in writing to: • Meetings will be held two times per (859) 492-9945 year. ([email protected]). Managing Editor, Kentucky Before You Move... Bench & Bar, 514 West Main St., Frankfort, Over 14,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which he or she may be KY 40601 communicated, as well as a physical address if your mailing address is a Post Office address. If you move, you must notify the Executive Director of the KBA within 30 days. All roster changes must be in writing and must include your 5-digit KBA member identification number. There are There is a $10 fee per several ways to do this for your convenience.

VISIT our website at www.kybar.org to make ONLINE changes or to print an Address photograph appearing with Change/Update Form announcements. EMAIL the Executive Director via the Membership Department at [email protected] FAX the Address Change/Update Form obtained from our website or other written notifica- Paid professional announce- tion to: ments are also available. Executive Director/Membership Department (502) 564-3225 Please make checks payable to MAIL the Address Change/Update Form obtained from our website or other written notifica- the Kentucky Bar Association. tion to: Kentucky Bar Association Executive Director The deadline for announcements 514 W. Main St. Frankfort, KY 40601-1883 appearing in the next * Announcements sent to the Bench & Bar’s Who, What, When & Where column or communi- cation with other departments other than the Executive Director do not comply with the rule edition of Who, What, When & and do not constitute a formal roster change with the KBA. Where is February 1st. 44 Bench & Bar January 2007 BOARD OF GOVERNORS SUMMARY OF MINUTES Heard status reports from the Client announcement was mailed to the KBA KBA BOARD OF GOVERNORS Assistance Program (CAP), Kentucky Membership on August 28, advertised in MEETING Lawyer Assistance Program (KYLAP), the Bench & Bar magazine as well as SEPTEMBER 15, 2006 Office of Bar Counsel and Rules through a job announcements service of Committee. the ABA Division for Bar Services. The Board of Governors met on A. J. Schaeffer, Chair of the Young President Ewald reported that as of Friday, September 15, 2006. Officers and Lawyers Section, reported that the sec- September 15, 2006 the Kentucky Bar Bar Governors in attendance were tion plans to partner with the Access to Foundation has received more than President R. Ewald, President-Elect J. Justice Foundation to enhance pro bono $100,000 as a result of the voluntary sus- Dyche, Vice President B. Bonar, efforts among young lawyers. The sec- tainer contribution on the KBA Annual Immediate Past President D. Sloan, tion continues its public service efforts Dues statement. The sustainer contribu- Young Lawyers Section Chair A. with the “Wills for Heroes” program as tion total last year was just over $28,000. Schaeffer, Bar Governors 1st District M. well as its affiliation with the ABA. Approved a policy for the appoint- Whitlow, D. Myers; 2nd District – C. Lori Dearfield with Kelley, Galloway ment of a Special Deputy Bar Counsel. Moore, J. Harris, Jr., 3rd District – R. & Company, P.S.C. presented the Fiscal Mr. Davis reported there was a loss of Madden, M. McGhee, 4th District – M. Year June 30, 2006 Audit Report. $15,062.87 for the 2006 Annual O’Connell, J. White; 5th District – D. Bar Governor John Rosenberg pre- Convention in Covington. McSwain; F. Fugazzi, Jr., 6th District – sented the first report of the Kentucky Approved the total reserve/surplus M. Grubbs, T. Rouse and 7th District – J. Pro Bono Development Project. The carry forward for 22 sections in the Rosenberg, W. Wilhoit Projects new theme is “Change the amount of $213,822.10. World in 50 hours – The Kentucky A copy of the CLE Commission In Executive Session, the Board con- Volunteer Lawyer Program. Annual Report that is filed with the sidered six (6) discipline cases, involving President Ewald reported that the Supreme Court was distributed to the two lawyers, two (2) default discipline Executive Director Search Committee Board of Governors. cases and two (2) reinstatement cases. met on September 14. The job Robert Coleman of Paducah, Steve Langford of Louisville and Mickey Legally Insane by Jim Herrick McCoy of Inez, non-lawyer members serving on the Board pursuant to SCR 3.375 participated in the deliberations.

In Regular Session, the Board of Governors conducted the following busi- ness:

To KBA Members Do you have a matter to discuss with the KBA’s Board of Governors? Board meetings are scheduled on March 23-24, 2007 May 18-19, 2007 To schedule a time on the Board’s agenda at one of these meetings, please contact Bruce Davis or Melissa Blackwell

at (502) 564-3795. KENTUCKY BAR NEWS “It’s just the effects of tort reform, I suppose.”

January 2007 Bench & Bar 45 WHO, WHAT, WHEN & WHERE KENTUCKY BAR NEWS ON THE MOVE and practices in the area of business enti- licensed to practice ties and transactions. Tzanetos is also a law in Kentucky and Stoll Keenon Ogden PLLC is 2006 graduate of the University of Indiana. His primary pleased to announce attorney Olu A. Kentucky College of Law and focuses practice areas include Stevens is now a member of the firm her practice in the areas of corporate insurance defense liti- and that attorneys Jeffrey A. Calabrese, finance and lending, real estate finance gation cases involving Amy Olive Wheeler, and development, and business entities matters of medical and transactions. In 2005, she earned malpractice, negli- Allison J. Donovan Joshua W. Davis and Laura Katherine her Masters in Diplomacy with a con- gence and tort claims, Tzanetos are now centration in international law from the product liability, practicing law with the University of Kentucky. workers’ compensa- firm. Stevens concen- tion, and insurance trates in the areas of Wyatt, Tarrant & coverage. Calabrese domestic, tort and Combs, LLP is received her B.A. pleased to announce from the University of insurance litigation. Olu A. Stevens Prior to his work at that Daniel E. Louisville, magna Hitchcock has joined cum laude, in 2000 Stoll Keenon Ogden, Melissa F. he spent ten years as a the firm as counsel in and earned her J.D. Calabrese solo practitioner and the Lexington office from the University of also served as a prose- and that Carl Georgia at Athens in cutor with the Horneman is rejoin- Daniel E. Hitchcock 2003. She is licensed Jefferson County ing the firm in the to practice law in Attorney’s Office. He Louisville office. Kentucky and received his B.A. from Hitchcock is a mem- Alabama and will Jeffrey A. Calabrese Morehouse College ber of the firm’s concentrate her prac- and earned his J.D. Bankruptcy & tice in the area of from George Creditors’ Rights insurance defense liti- Katherine K. Vesely Washington Law Practice Group. He gation, including mat- School. Calabrese con- received his B.A. from ters of medical mal- Carl Horneman centrates his practice the University of practice, negligence and tort claims, in labor and employ- South Florida and product liability, and insurance coverage. ment law and com- earned his J.D. in 1996 from the Vesely received her B.A., magna cum mercial litigation. Amy O. Wheeler University of Louisville Brandeis School laude, from Mercer College in 1995 and Before joining the of Law. Hitchcock is licensed to practice earned her M.A. from Vanderbilt firm, he practiced law law in Kentucky and Florida. University in 1997. After serving with with Baker Donelson Horneman, former senior counsel, envi- the Peace Corps in Poland from 1998- Bearman, Caldwell & ronmental law, for GE Consumer & 2000, she returned to the U.S. and Berkowitz, PC and Industrial, has joined the firm’s earned her J.D., cum laude, from the clerked for the Hon. Environmental Practice Group. Prior to University of Louisville Brandeis School Karon O. Bowdre, the past fifteen years at GE, he was an of Law in 2006. Her primary practice U.S. District Judge for attorney at Wyatt, a clerk for the chief area is insurance defense litigation with the Northern District Allison J. Donovan judge of the United States Court of emphasis on medical malpractice, prod- of Alabama. Wheeler Appeals for the Sixth Circuit, and man- uct liability, negligence and tort claims, is a 2005 graduate of ager of the enforcement branch of the and insurance coverage. Vanderbilt University Kentucky Division of Waste Management. Law School and prac- The Louisville law tices in the areas of The Louisville law firm of O’Bryan, firm of Diana L. commercial litigation Brown & Toner, PLLC is pleased to Skaggs & Associates and bankruptcy. Prior announce that Joshua W. Davis, is pleased to to joining the firm, she Melissa F. Calabrese and Katherine K. announce Sarah Jost clerked for Associate Laura K. Tzanetos Vesely have joined the firm as associate Nielsen has joined the Justice William S. attorneys. Davis received his B.A. from firm as an associate. Cooper at the Kentucky Supreme Court. Centre College in 2001 and earned his Nielsen is a 2002 cum Sara J. Nielsen Donovan is a 2006 graduate of the J.D. from the University of Louisville laude graduate of St. University of Kentucky College of Law Brandeis School of Law in 2004. He is Louis University 46 Bench & Bar January 2007 WHO, WHAT, WHEN & WHERE School of Law. The firm will continue Dinsmore & Shohl Thompson Miller to limit its practice to the areas of LLP has hired Aaron & Simpson is pleased divorce and family law. R. Esmailzadeh and to announce that Alexander “Alec” J. Cherene Fannin has Greenebaum Doll Moeser. Esmailzadeh accepted an associate & McDonald PLLC received his B.A. from position with the firm is pleased to announce Brown University in in Louisville. Fannin, that Gary T. Banet, 1999 and earned his a 1995 graduate of Cherene Fannin Kevin T. Duncan, J.D., cum laude, from Aaron R. Centre College, Matthew A. Stinnett the University of Esmailzadeh obtained a bachelor’s degree in Health and Timothy J. Louisville Brandeis Science/Physician Assistant Studies from Weatherholt have School of Law in the University of Kentucky in 1999 and joined the firm. Banet Gary T. Banet 2006. Moeser received worked as a P.A. for three years. She and Weatherholt are his B.A. from Stanford graduated from the University of Dayton practicing in the firm’s University in 2001 and School of Law in 2006 and is licensed to Louisville office. earned his J.D. from practice law in Kentucky. Duncan is a resident the University of in the firm’s Kentucky College of The Frankfort law firm of Hazelrigg Louisville and Law in 2005. Alexander J. & Cox is pleased to announce that J. Washington, D.C. Esmailzadeh and Moeser Scott Mello has joined the firm as a offices. Stinnett is Moeser both practice at the Cincinnati partner and Sarah K. Mello has joined practicing in the firm’s Kevin T. Duncan office in the Litigation Department. the firm as an associate. Scott Mello, a Lexington office. 1968 graduate of the State University of Banet holds an under- Woodward, New York, obtained his J.D. from the graduate degree from Hobson & Fulton, University of Louisville in 1999. He has Indiana University LLP has announced twenty-two years experience with the and is a graduate of that Daniel P. Cherry Kentucky Natural Resources Cabinet and the University of has joined the firm in will continue to concentrate his practice Louisville Brandeis its Louisville office. in environmental law, domestic relations School of Law. He has Cherry’s primary areas law, administrative law, and civil litiga- Matthew A. Stinnett joined the firm’s of practice include liti- tion. Sarah Mello, a 2001 graduate of the Estate Planning, gation management, Daniel P. Cherry University of Kentucky, obtained her Health and Insurance construction law, J.D. from the U.K. College of Law in Practice Group. bankruptcy litigation, appellate practice 2006. She will concentrate her practice Duncan earned his and Uniform Commercial Code Articles in contract law, administrative law, and B.M.C.S., M.E.E. and 2, 3 and 4. domestic relations law. J.D. degrees from the University of The Louisville law Turner Keal & Dallas, PLLC is Louisville. He is Timothy J. firm of Middleton pleased to announce that R. Allen admitted to practice Weatherholt Reutlinger is pleased Button and James M. Burd have joined law in Kentucky, to announce that the firm as partners. Button’s area of Indiana and Virginia. Duncan has joined Alexander Brackett practice is in civil defense litigation in the firm’s Intellectual Property Team and has been named a state and federal courts. He is a 1973 will lead the team’s patent litigation area director. He graduated graduate of the University of Kentucky of practice. Stinnett received his under- from the University of Alexander Brackett and a 1975 graduate of the U.K. College graduate degree from Transylvania Delaware and received his M.B.A. from of Law. Burd practices in the area of University and is a graduate of Salmon Xavier University. Brackett earned his insurance defense litigation involving P. Chase College of Law. He has joined J.D. from Salmon P. Chase College of medical malpractice, long-term care, the firm’s Litigation and Dispute Law. He is a registered patent attorney automobile liability, employment and Resolution Practice Group. Weatherholt and is admitted to practice in Kentucky civil rights. He is a 1989 graduate of received his undergraduate degree from and Ohio. He practices in the firm’s Auburn University and a 1992 graduate Transylvania University and earned his Intellectual Property Group, focusing on of the U.L. Brandeis School of Law. law degree from Vanderbilt Law School. patent law and patent prosecution.

He has joined the firm’s Labor and W. Banks Hudson announces that his KENTUCKY BAR NEWS Employment Practice Group. son, Joshua J. Hudson, has joined him January 2007 Bench & Bar 47 WHO, WHAT, WHEN & WHERE KENTUCKY BAR NEWS in practice and the two have formed from the University of area of practice is in insurance defense Hudson & Hudson, PLLC. The office Louisville Brandeis litigation involving medical malpractice, will remain at 102 South Fourth Street in School of Law. His long-term care, automobile liability, Danville on the second floor of the primary areas of prac- employment, and civil rights. Kentucky Federal Savings Bank tice include personal The Zoppoth Law Firm in Building. The firm will engage in the injury, employment, Louisville is pleased to announce that general practice of law. Joshua Hudson and insurance law. Christina M. Caravello has joined the received his B.A. from Wofford College firm as an associate with Scott P. David B. Barber in South Carolina in 2001 and earned his The Bowling Green Zoppoth and Bryan M. Cassis. She grad- J.D. from Salmon P. Chase College of law firm of Bell, Orr, Ayers & Moore, uated, cum laude, from the University of Law in 2006. PSC is pleased to announce the associa- Kentucky and earned her J.D. from tion of T. Brian Lowder with the firm. Salmon P. Chase College of Law in Commonwealth’s Lowder graduated from Western 2005. Caravello will concentrate her Attorney, Karen M. Kentucky University in 2003 and earned practice in the areas of commercial and Davis, is pleased to his J.D. from the University of Louisville business litigation. announce the addition Brandeis School of Law in 2006. He of Kathryn M. focuses his practice in banking, commer- IN THE NEWS Thomas as an cial and business litigation, corporate, Assistant criminal, and real estate. C.A. “Woody” Woodall, III was Commonwealth’s elected Circuit Judge of the 56th Judicial Attorney for the 43rd Kathryn M. Mark L. Miller District (Caldwell, Livingston, Lyon and Thomas Judicial District, which announces that he is Trigg Counties) in an unopposed election encompasses both Barren and Metcalfe entering the private November 7, 2006. Counties. Thomas received her B.A. practice of law after from Western Kentucky University in retiring as the com- Wyatt, Tarrant & Combs, LLP is 1999 and earned her J.D. from the missioner of the pleased to announce that Kathie University of Louisville Brandeis School Kentucky State Police. McDonald-McClure has been elected to of Law in 2003. Miller’s practice is the board of directors of the Health located in Louisville at Mark L. Miller Enterprises Network Louisville, a non- The Cincinnati law firm of Wood & 600 West Main Street profit economic development network Lamping, LLP is pleased to announce in Suite 300. His telephone number is focused on the region’s health-related that Elizabeth A. Horwitz has joined its (502) 589-6190. He is also a Lieutenant business. McDonald-McClure is a mem- Business Practice Group. Horwitz has Colonel in the U.S. Army Reserve, ber of the firm’s Health Care Practice over twenty years of experience repre- Judge Advocate General Corps. Group. She also advises clients in insur- senting businesses of all types and sizes. ance coverage and risk management plans. Adam Redden has joined Eric C. Weltman, Weinberg & Reis Co., Deters & Associates in Independence as Greenebaum Doll LPA welcomes Andrew J. Sonderman, an associate. Redden is a graduate of the & McDonald PLLC Of Counsel, to the Columbus office. University of Louisville Brandeis School has announced that Sonderman received his B.A., summa of Law and is licensed to practice law in Jeffrey A. McKenzie, cum laude, from Kent State University in Kentucky. member-in-charge of 1973 and earned his J.D. with highest the firm’s Louisville honors in 1976 from the Ohio State The Prospect law firm of Turner office, has been University Moritz College of Law, Order Keal & Dallas, PLLC is pleased to named chairman and of the Coif. He is licensed in the state announce that R. Allen Button and chief executive officer Jeffrey A. courts of Kentucky and Ohio and has James M. Burd have joined the firm as of the firm. McKenzie McKenzie joined the firm’s Litigation & Defense partners. Button graduated from the joined Greenebaum in Department. University of Kentucky in 1973 and 1986. In addition to his new role as earned his J.D. from the U.K. College of chairman and CEO, he is the chair of the The Louisville law firm of Theodore Law in 1975. His area of practice is in firm’s Economic Development and L. Mussler, Jr. & Associates is pleased civil defense litigation in state and feder- Incentives Team, where he concentrates to announce that David Bryce Barber al courts. Burd graduated from Auburn his practice in business law, economic has joined the firm as an associate attor- University in 1989 and earned his J.D. development, corporate law, real estate ney. Barber received his M.A. from the from the University of Louisville development and finance, commercial University of Illinois and earned his J.D. Brandeis School of Law in 1992. His lending, and construction. 48 Bench & Bar January 2007 WHO, WHAT, WHEN & WHERE Major General Governors. A former Kentucky Bar tion, as well as charita- Richard L. Frymire Association President, Clay practices in ble and family-owned was enshrined in the the areas of complex litigation, pharma- business planning. Kentucky Aviation ceutical and medical device litigation, Hall of Fame in appellate practice and administrative law. Stoll Keenon October of 2006. The Ogden PLLC is Kentucky Aviation Frost Brown Todd pleased to announce Hall of Fame is part of members, Greg E. that attorneys Thomas Richard L. Frymire Thomas E. Rutledge the Aviation Museum Mitchell and Susan E. Rutledge and of Kentucky at Bluegrass Field in Grogan Faller, were Laura H. Pulliam Lexington. General Frymire had a thirty- featured speakers in were both contributors one year military career. He served as a Beijing, China at to the “Model Limited Marine aviator, then after active duty MULTILAW’s Annual Liability Company joined the Air National Guard in 1956. Meeting hosted by Jun Membership Interest Greg E. Mitchell After graduating from the University of He Law Offices. Redemption Kentucky College of Law, he settled in Mitchell presented, Agreement,” which Madisonville in 1959. “The Challenges for was published in the Laura H. Pulliam China as an Exporter – May 2006 issue of the Assistant United States Attorney Jo the U.S. Perspective,” Business Lawyer, the E. Lawless received an award for supe- and Faller presented journal for the ABA Section of Business rior performance in October 2006 from “Advertising in Law. Rutledge was also the co-chair of the Department of Justice at its 23rd China.” the drafting committee and the reporter annual Executive Office for United for the agreement. Susan G. Faller States Attorneys Director’s Awards The Kentucky Ceremony. Attorney General Alberto R. Registry of Election RELOCATIONS Gonzales said, “The award recipients Finance unanimously re-elected John were honored for their extraordinary Rogers, a Glasgow attorney, to serve a Bradley Pruitt has been appointed commitment to protecting our commu- fifth consecutive term as chair, and unan- vice-president, legal at RehabCare nities, promoting justice and preserving imously re-elected Craig C. Dilger, a Group, Inc., a national health care com- the civil liberties that make our country Louisville attorney, to serve a second pany providing rehabilitation program so great.” consecutive term as vice-chair. They management services and operating free- serve are serving a one-year term as offi- standing rehabilitation hospitals and Woodward, Hobson cers that commenced October 27, 2006. long-term acute care hospitals. Pruitt will & Fulton, LLP has be located in the corporate headquarters announced that its Philip C. Eschels, an attorney prac- in St. Louis, Missouri. managing partner, ticing in the Louisville office of Donna King Perry, Greenebaum Doll & McDonald, has Steven L. Snyder was recognized by the been elected president of the Actors has accepted the posi- Business and Theatre of Louisville Board of Directors. tion of counsel in GE Professional Women In addition, his article entitled “Effective – Aviation’s of River City as the Donna King Perry Post-Trial Motion Practice in Litigation and 2006 Woman of Employment Cases” was published in Preventive Law Achievement at its annual banquet during the Practical Litigator. Department. Snyder National Business Women’s Week in is located at the GE – Steven L. Snyder October of 2006. John S. Lueken, a Aviation facility in member in Evendale, Ohio. His previous position Woodward, Hobson Greenebaum Doll & was as a partner with Wyatt, Tarrant & & Fulton, LLP has McDonald’s Louisville Combs, LLP in Louisville, where he also announced that office, has been elected worked for thirteen years. Richard H.C. Clay, a as a Fellow of the partner in its American College of Louisville office, has Trust and Estate been elected chair of Counsel. Lueken’s John S. Lueken www.kybar.org the J.B. Speed Art practice areas focus on KENTUCKY BAR NEWS Museum Board of Richard H. C. Clay estate and trust planning and administra- CLICK January 2007 Bench & Bar 49 Classified Advertising Services Offered porate transactions, specifically the area Kentucky is seeking an associate with 3 of Mergers and Acquisitions. Strong to 7 years of general litigation experi- DENTAL AND ORAL SURGERY academic record necessary. Send resume, ence. Kentucky bar admission mandato- CONSULTANTS, LTD. 1-800-777-5749. writing sample and law school transcript ry, Ohio bar admission a plus. to Karen Laymance, 200 PNC Center, Candidates must be highly motivated MINING ENGINEERING EXPERTS 201 E. Fifth Street, Cincinnati, Ohio and willing to assume immediate Extensive expert witness experience. 45202 or by email to klaymance@ responsibility for legal research and Personal injury, wrongful death, acci- fbtlaw.com. Frost Brown Todd LLC is writing, assisting with trial preparation, dent investigation, fraud, disputes, estate an equal opportunity employer. taking and defending depositions, and valuation, appraisals, reserve studies. all aspects of case management. JOYCE ASSOCIATES 540-989-5727. ESTABLISHED REGIONAL Ashland, Kentucky law firm seeks to Excellent opportunity for an attorney WHISTLEBLOWER/QUI TAMS: hire an associate with excellent aca- seeking his/her own case load with Former federal prosecutor C. Dean demic record, a strong work ethic and immediate courtroom experience. Furman is available for consultation or commitment to excellence with two to Strong academic credentials and litiga- representation in whistleblower/qui tam five years experience. Competitive tion experience preferred. Salary nego- cases involving the false submission of salary and full benefits. This is an tiable based upon experience, good ben- billing claims to the government. excellent opportunity for long-term pro- efits. Send resume, writing sample, law Phone: (502) 245-8883 Facsimile: (502) fessional development with a premier school transcript, salary requirements 244-8383 E-mail: [email protected] AV rated firm. Interested candidates and references to : Hiring Partner, PO THIS IS AN ADVERTISEMENT should send a confidential cover letter Box 472, Covington, Ky. 41012-0472. Inquiries will be confidential. Employment with transcript and resume to P.O. Box 549, Ashland, Kentucky 41105-0549. ASSOCIATE ATTORNEY: Central Recreational Rentals LITIGATION ASSOCIATE: Kentucky law firm seeks associate KY & BARKLEY LAKES: Green Medium-sized, AV-rated firm concen- attorney for office. Prefer three to five Turtle Bay Resort. Sixty-five luxury trating in defense litigation in Cincinnati years experience in business/corporate rental condos, 1-4 BR, Conference and Northern Kentucky seeking associ- law, estate administration, estate plan- Center, 2 pools, 2 restaurants, tennis, ates with a minimum of 2 to 5 years of ning and real estate. Candidates should beach, water sports and golf nearby. general litigation experience. Candidates possess strong academic background as The perfect spot for a family vacation must be highly motivated and willing to well as exceptional verbal and written or a company retreat. In historic Grand assume immediate responsibility for skills. E-mail resume and references to Rivers “The Village Between the legal research and writing, assisting with [email protected], mail to 3561 Lakes.” Call (800) 498-0428 or visit trial preparation, taking and defending Perryville Road, Danville, Kentucky us at www.greenturtlebay.com. depositions, and all aspects of case 40422 or fax to 859-236-1733. development. Strong academic creden- LUXURIOUS GULF-FRONT ASSOCIATE ATTORNEY: Growing tials and litigation experience preferred. CONDO, Sanibel Island, Fl. Limited Downtown Lexington Law Firm seek- Send resume, writing sample and law rentals of “second home” in small devel- ing Associate with 2 to 5 years experi- school academic transcript to: Hiring opment, convenient to local shopping. 2 ence in Commercial Litigation. Only Partner, FREUND, FREEZE & BR, 2 bath, pool, on Gulf. Rental rates candidates with substantial experience ARNOLD, 105 E. Fourth St., Suite below market at $2,400/week in-season and strong educational credentials will 1400, Cincinnati, OH 45202. and $1,300/wk off-season. Call Ann be considered. Competitive salary, com- Oldfather (502) 637-7200. LITIGATION ATTORNEY: mensurate with experience, and benefits. Campbell Woods, PLLC seeks associ- HILTON HEAD ISLAND, S.C.: Golf Partnership potential. Please send resume ate attorney with 2 to 4 years of experi- in confidence to C. Cunningham, 301 E. and lagoon views in this 2 Br., 2 Ba. ence and strong analytical and writing Main, Suite 800, Lexington, KY 40507, Villa in Sea Pines Plantation. Tennis and skills to work in civil litigation. or E-mail resume to: putting green on site. Walk to beach. Competitive compensation and benefits [email protected] Easy access to Harbourtown and South package provided. Send cover letter, Beach. In season, $1,150.00; CORPORATE ATTORNEY – Frost resume and transcript to Dustin C. Leisure/Holiday, $950.00; Off season, Brown Todd LLC, one of the largest Haley, Campbell Woods, PLLC, P.O. $725.00, per week. Monthly rates avail- regional law firms in the Midwest and Box 1835, Huntington, WV 25719. able in off season. Tom Banaszynski one of the 100 largest law firms in the (502) 585-2100. United States, seeks an associate for its MEDIUM-SIZED AV-rated firm focus- Lexington, Kentucky office. Successful ing in civil litigation practice, including COROLLA, NC GUEST QUARTERS: candidate must have at least 2-4 years medical malpractice, insurance defense, Luxury beach house, 6BR/4baths, experience in general business and cor- and workers’compensation in Northern sleeps 16, private pool, ocean views, 50 Bench & Bar January 2007 IMMIGRATION AND NATIONALITY CONSULTANT Dennis M. Clare is available to practice Immigration and Nationality Law before all Immigration and Naturalization Service Offices throughout the United States and at United States Consulates throughout the world. 20 years experience with immigration and national- Collision Investigation ization; member, American Immigration Workers Compensation Lawyers Association. Law Offices of Dennis M. Background Checks Clare, Suite 500, The Alexander Building, 745 Internal Theft W. Main Street, Louisville, KY 40202. General Investigations Telephone: 502-587-7400 Fax: 502-587-6400 THIS IS AN ADVERTISEMENT www.investigativeresourcesky.com

Bar Complaint? Disciplinary Matter? TIMOTHY DENISON Louisville, Kentucky

Providing representation and consultion in bar proceedings and disciplinary matters statewide. Phone: (502) 589-6916 Fax: (502) 583-3701

THIS IS AN ADVERTISEMENT FREE LAW LIBRARY- My father, Julian rec room, great in and off season visiting for a number of weeks or a long Knippenberg recently passed away. He prac- rates.Visit www.guestquartersobx.com weekend. Membership provides addi- ticed law in Lexington, Kentucky from 1947 or contact Stan Clark at 1-877-399- tional usage options either at the home until 2004. His estate includes a complete 6868 for more info. Club or at sister Clubs. As a deeded real set of Kentucky Southwestern Reporters. I THE RITZ-CARLTON CLUB ST. estate asset, the Membership in The am looking for an organization that will rec- THOMAS “Gateway to the Caribbean” Ritz-Carlton Club may be handed down ognize and honor his practice by furnishing from generation to generation. The a library with this set of books. Ideally the - At last you can enjoy a second home library would be public in nature and free to in the Caribbean with real peace of owner has aggressively priced this Membership under market value. those who wish to use the books. If you or mind. This Membership entails specific someone you know is aware of such a situa- usage entitlements reserved years in Interested parties may call 912-598- 5652 for additional information. tion, please call me and let me know about advance for the owners convenience. it. I can be reached at 859-885-7008. Thank As a member, you have the options of you. Glenn Knippenberg January 2007 Bench & Bar 51 PENNSYLVANIA - NEW YORK - NEW JERSEY - DELAWARE IMMIGRATION AND LAWLOR, LOCAL OR LEAD COUNSEL NATIONALITY CONSULTANT WINSTON & COHEN, SEGLIAS, PALLAS, Dan L. Owens is available to practice JUSTICE, P.A. GREENHALL & FURMAN, P.C. Immigration and Nationality Law before UNITED PLAZA, 19TH FLOOR, 30 SOUTH 17TH ST. Immigration and Nationality Offices throughout PHILADELPHIA, PENNSYLVANIA 19103 the United States and U.S. Consulates abroad as well as Customs Law and International Cam F. Justice, Esq. KEVIN B. WATSON, ESQ. Licensing. Member of the American Phone (954)525-2345 • Fax (954)730-8908 [email protected] Specializing in trial work in all FL Courts UK GRADUATE - J.D., B.S.C.E. AND B.S.MIN.E. Immigration Lawyers Association and Member LICENSED IN PA, NY AND KY of Frost Brown Todd LLC, 400 W. Market St. Co-Counsel Fees Paid CONSTRUCTION, DESIGN PROFESSIONAL AND COMMERCIAL LITIGATION 32nd Floor, Louisville, Kentucky 40202-3363. TEL: 215.564.1700 | FAX: 215.564.3066 (502) 568-0383, FAX (502) 581-1087” Your Florida Connection OFFICES IN: PHILADELPHIA, HARRISBURG, PITTSBURGH, THIS IS AN ADVERTISEMENT www.LWJPA.com WILMINGTON DE, AND HADDON HEIGHTS NJ

HELP FOR OVERWORKED ATTENTION PARALEGALS Kentucky Paralegal Association ASHLEY D. WILMES TOM DIXON has established a free job bank for Contract Legal Services EQUINE CLAIMS EXPERT paralegals seeking employment in the 859-312-4162 state of Kentucky. For more information, www.wilmeslegal.com 2088 Fallon Road contact Chandra Martin at (502) 581-8046 Lexington, KY 40504 or by e-mail at [email protected] [email protected] Overworked? Need quick turnaround on a memo Kentucky or brief? Consider me your associate attorney on 859.277.8378 Paralegal an as needed basis. From research assignments [email protected] Association to appellate work, I am available to assist you with your busy practice. Visit wilmeslegal.com. P.O. Box 2675, Louisville, KY 40201-2675 This is an advertisement CONSULTATIVE EXPERTS TO THE MEDICAL LEGAL COMMUNITY Classified Advertising HEALTH CARE AUDITORS $30.00 for the first 20 words, • Stat Affidavits 4 Hours • Free Written Reports 50 cents for each additional word. • No Bill! Referral $395 • U.S. Largest Med/Legal Consulting Firm Blind box numbers are available for an additional 23yrs/25k cases. Billions Paid to our Clients. TOLL FREE #1-877-390-HCAI $15 charge. Agency discounts are not applicable. Corporate Center Location 10126 Sorenstam Dr., Trinity, Florida 34655 • Fax (727) 375-7826 Deadline for ads appearing in the next issue is February 1. For rates and more information call (502) 564-3795 LET THIS SPACE WORK FOR YOU! CALL 502.564.3795 Boxed ads sized 2 1/4” x 2” $75 members • $85 non-members 15% discount for one year insertions paid in advance Deadline for next issue February 1

52 Bench & Bar January 2007 Introducing the new KBA member benefit included in your Kentucky Bar dues

Casemaker® Legal Research makes online legal research accessible and easy ◆ Out-of-state & Kentucky legal resources ◆ Free unlimited use for all KBA members ◆ At your fingertips and simple to use

Login Instructions for KBA members:

• Go to the Kentucky Bar Association website http://www.kybar.org • Click on the “Login” button on the far left of the menu bar • Enter your KBA Attorney Number in the first field (Username) • Enter your Password in the second field (Your password will either be your date of birth in the form 01/01/19xx or the password you have assigned yourself.) • Click on the “Log In” button After you have logged in, you will notice that the button to the far left on the menu bar now says “Logout” and your name will be on the menu bar to the right • Casemaker® is the first item on the “Resources” menu You will be asked to read and agree to the End User License Agreement From this screen, you will also have access to the Casemaker® user manual

If you need assistance with logging on to Casemaker®, contact the Kentucky Bar Association at (502) 564-3795 or send an email to [email protected].

Note: you must be a KBA Member and you must log in before you will be able to access Casemaker®. ADVANCING THE PROFESSION, JUSTICE & THE RULE OF LAW

KENTUCKY’S COURSE

Announcing

The convention is a rewarding professional experience and provides resources you will find yourself using again and again.

June 20-22 in Louisville

Get Convention Updates at kybar.org