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Underwritten by: Metropolitan Life Insurnace, 200 Park Avenue, New York, NY 10166 VOL. 80, NO. 4 Thisissue of the Kentucky Bar Association’s B&B-Bench & Bar was published in the month of July. COMMUNICATIONS & PUBLICATIONS COMMITTEE James P. Dady, Chair, Bellevue Contents Paul Alley, Florence Elizabeth M. Bass, Lexington 2 President’s Page James Paul Bradford, Paducah By Mike Sullivan Frances E. Catron Cadle, Lexington 5 Terms Expiring for KBA Board of Governors Anne A. Chesnut, Lexington Rachel Dickey, Louisville 6 Q & A with Kentucky Supreme Court Tamara A. Fagley, Lexington Chief Justice John D. Minton Jr. Mark Flores, Lexington By James P. Dady Cathy W. Franck, Crestwood Lonita Baker Gaines, Louisville Features: The Future of Law Practice William R. Garmer, Lexington 12 Where Ethics and E-Discovery Collide: Competence and Laurel A. Hajek, Louisville Modern Discovery Practice When The e are No Rules P. Franklin Heaberlin, Prestonsburg By Judge David A. Tapp Judith B. Hoge, Louisville Jessica R. C. Malloy, Louisville 18 TheFuture of Law Libraries Eileen M. O'Brien, Lexington By Tina M. Brooks, Franklin L. Runge and Beau Steenken Richard M. Rawdon, Jr., Georgetown Sandra J. Reeves, Corbin Columns Gerald R. Toner, Louisville 24 Young Lawyers Division Sadhna True, Lexington By Rebecca Schafer Zachary M. Van Vactor, Louisville Michele M. Whittington, Frankfort 26 University of Kentucky College of Law PUBLISHER 27 Northern Kentucky University Salmon P. Chase College of Law John D. Meyers 28 University of Louisville Louis D. Brandeis School of Law EDITOR 30 Effective Legal Writing James P. Dady By A.J. Besik, Chelsea Dermody, Devon Skeens, and Justin Walker MANAGING EDITOR 32 Shop Talk By Michael Losavio Shannon H. Roberts DESIGN & LAYOUT Bar News Jesi L. Withers 34 KBA Board of Governors Minutes and The B&B - Bench & Bar (ISSN-1521-6497) Upcoming Meeting Dates is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 36 Book Review KY 40601-1812. Periodicals Postage paid at By Judith D. Fischer Frankfort, KY and additional mailing office 37 KBA Website Highlight All manuscripts for publication should be sent to the Managing Editor. Permission is granted 38 Judicial Conduct Commission for reproduction with credit. Publication of any article or statement is not to be deemed an endorsement of the views expressed therein by Departments the Kentucky Bar Association. 42 Kentucky Bar Foundation/IOLTA Subscription Price: $20 per year. Members subscription is included in annual dues and is 46 Kentucky Lawyer Assistance Program not less than 50% for the lowest subscription price 48 Continuing Legal Education paid by subscribers. For more information, call (502) 564-3795. 51 In Memoriam POSTMASTER 52 Who, What, When and Where Send address changes to: B&B - Bench & Bar Several inside graphics by ©istockphoto.com/JesiWithers 514 West Main Street Cover photo and president’s page image by: Charles Mahlinger Photography Frankfort, KY 40601-1812

BENCH & BAR | 1 PRESIDENT’S PAGE

s my senior year in college came to a close, I had already and Defense Fund, the KBA, and the National Organization of decided to attend law school, but did not know where I Social Security Claimants Representatives, 135 lawyers respond- A wanted to attend. I considered going up east where my ed to represent these people. This number includes 54 Kentucky sister and some friends lived, or to Washington, D.C., but Ken- lawyers and 81 lawyers from other states. In a May 9, 2016 article tucky kept calling me home. Numerous people I trusted told me, in the Courier-Journal, it was noted that former KBA President “If you want to practice law in Kentucky, you should attend a Ken- Bob Ewald, who had never practiced a Social Security case, was tucky law school.” I followed that advice, and it is one of the best one of the attorneys who stepped forward to help. Thearticle also decisions I ever made. It led me to becoming a “Kentucky lawyer.” mentioned Louisville attorneys Shannon Fauver and Dani Seitz, It is a title I wear with great pride. who took on 18 and 52 of these cases, respectively. Theseattorneys and the other attorneys who volunteered to represent these people For years, the legal profession has endured attacks, many based in need make us proud and reflect ell on our profession. on either misinformation or ignorance. Still, attorneys continue to prove to the public they have the honesty and integrity worthy Lawyers throughout the state perform similar good deeds every of the public trust. day. For example, in Owensboro, where I practice, on a regular basis local attorneys conduct a free legal clinic during the weekend As we continue to face ever mounting pressures brought on by in- at the local public library, offering free legal consultations to the creased competition from non-lawyers and lawyers outside Ken- public. tucky, the rising costs of practicing law while revenues remain the same or decrease, and the stress inherent in the practice of law, At the KBA, we will also continue to focus on serving our mem- we must keep in mind that we are members of a noble profession bers and the public. During this past year, a process that started whose main purpose is to preserve the rule of law in our society, with a survey of our members culminated in the adoption of a protect the rights of individual, and ensure justice for all. new strategic plan to carry out the mission and purpose of the bar association set forth in SCR 3.025: As lawyers, we provide a service, legal services. Our job is to Themission and purpose of the association is to maintain serve—to serve our clients, to serve the interests of justice, to serve a proper discipline of the members of the bar in accordance our communities. with these rules and with the principles of the legal profession as a public calling, to initiate and supervise, with One such example of Kentucky lawyers serving our communities the approval of the court, appropriate means to insure a is the response to the crisis that arose last year in eastern Kentucky continuing high standard of professional competence on the when almost 1,500 recipients of Social Security disability benefits part of the members of the bar, and to bear a substantial learned that their cases would be reopened because of suspected and continuing responsibility for promoting the efficie y fraud, to which they were not a party, and they would have to and improvement of the judicial system. produce additional evidence that they were entitled to Social Se- curity benefits Of course, this crisis resulted in a pressing need I want to mention a few of the goals from this plan upon which for attorneys to represent these people. Led by Kentucky lawyers we will work during the coming year. John Rosenberg and Ned Pillersdorf, the Appalachian Research

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Over the past few years, we have seen a growing crisis with fund- lawyers occurred several years ago, Yvette Hourigan and the ing of Kentucky’s judicial branch of government. Severe budget KYLAP volunteers went into action to educate lawyers on how cuts since 2008 have signifi antly limited our state court system. to recognize the signs of a suicide crisis. While the suicide num- Our judges last saw a pay raise eight years ago. Our justice sys- bers have decreased in recent years, this suicide problem is part tem cannot properly serve the public without adequate funding. of a broader problem we continue to see in our discipline pro- This past year, the KBA leadership and its members assisted our cess—lawyers with mental health issues that impair their ability Supreme Court in communicating this need to the General As- to practice law. sembly. At the end of the session, after hard work by all involved, funding of our judicial branch of government was greatly in- KYLAP has helped many lawyers with substance abuse and men- creased from the original bill passed by the House. Still, we realize tal health issues, and we will strive to improve our ability to help all needs were not met. The KBA will continue to support the these lawyers. Chief Justice and our Supreme Court in their efforts to obtain adequate funding for the judicial branch of government. We will also continue our efforts with diversity, continuing legal education, and the attorney discipline process, as well as assisting In an effort to serve its members, the KBA plans to bolster its veterans through the efforts of our Military Law Committee. I practice management resources. With advances in technology am grateful to this year’s outgoing president, Doug Farnsley, and moving at an ever faster pace, it has become difficul for many past-president, Bill Johnson, for their work and dedication in the lawyers to keep up with what are now basic or expected admin- many accomplishments the KBA enjoyed in these areas under istrative capabilities for their offi . This is especially true of new their leadership. It has been an honor to serve with and learn from lawyers just starting a practice, more seasoned lawyers who may both of these distinguished attorneys. not have the time or resources to keep up with these changes, and solo and small fi ms that cannot afford to hire staff to handle of- Again, we do all of these things because of our obligation to serve fice management issues. As part of our strategic plan, the KBA others, to help others. will explore how it can better serve the practice management issues of its members by making more resources available to them. I will never forget trying a will contest case about 20 years ago. Thelawyer who prepared the will was testifying about what he did As many of you know, we have lost too many of our friends and to ensure the client making the will was competent. That lawyer colleagues to suicide. The suicide rate among lawyers is over fi e witness happened to be my father. As he testified he repeatedly times higher than the rate for the general population (13 deaths told the jury that in serving his client, he did what any “Kentucky by suicide per 100,000 deaths vs. 66 lawyer suicide deaths per lawyer” would have done in such a situation. 100,000 deaths). When the spike in suicides among Kentucky That phrase—a “Kentucky lawyer”—meant something to the jurors when they heard it. It meant skill, honesty, and integrity.

We at the KBA will continue to serve our members and the public with the goal that when people hear someone say “I am a Ken- tucky lawyer,” those ideals of skill, honesty and integrity will come to mind. I encourage all of you to help in these efforts by continuing your work in your communities, whether it is through pro bono work, service on local boards, institutions, churches or schools, or coaching your child’s soccer team. Th ough this connection to our communities, we can enhance the image of our profession.

In closing, it is my honor and privilege to serve the lawyers of Kentucky this coming year, and I look forward to the continued success of the KBA.

4 | JULY/AUGUST 2016 BENCH & BAR terms expire on AVAILABLE THROUGH THE KBA BOARD OF KY NFB-NEWSLINE® GOVERNORS The Kentucky Bar Association continues to present the Bench & Bar magazine in audio version through the KY NFB-NEWSLINE®. The KY NFB-NEWSLINE® audio n June 30 of each year, terms expire for seven (7) of information service is available to eligible subscribers the fourteen (14) Bar Governors on the KBA Board of by dialing a toll-free telephone or local call number on OGovernors. SCR 3.080 provides that notice of the expi- a touch-tone telephone; Newsline Mobile App on your ration of the terms of the Bar Governors shall be carried in the i-Device; or on the web at www.nfbnewslineonline.org. Bench & Bar. SCR 3.080 also provides that a Board member Eligible individuals include those who cannot use con- may serve three consecutive two-year terms. Requirements for ventional print because of a visual impairment; learning being nominated to run for the Board of Governors are contained in Section 4 of the KBA By-Laws and the requirements disability; physical impairment restricting the use of fi - include filing a written petition signed by not less than twenty gers, hands or arms; or other conditions causing limited (20) KBA members in good standing who are residents of the access to print information. candidate’s Supreme Court District. Board policy provides that “No member of the Board of Governors or Inquiry Com- For more information, visit our website at: mission, nor their respective fi ms, shall represent an attorney http://www.nfbnewsline-ky.org in a discipline matter.” In addition any member of the Bar and our Facebook page at: who is considering seeking or plans to seek election to the https://www.facebook.com/audionewskentucky/ Board of Governors or to a position as an Office of the KBA will, if elected, be required to sign a limited waiver of confiden iality regarding any private discipline he or she may have received. Any such petition must be received by the KBA Executive Director at the Kentucky Bar Center in Frankfort prior to the close of business on the last business day in October.

THE CURRENT TERMS OF THE FOLLOWING BOARD MEMBERS WILL EXPIRE ON JUNE 30, 2017:

1st SCD – Michael M. Pitman, Murray 2nd SCD – J. D. Meyer, Owensboro 3rd SCD – Howard O. Mann, Corbin 4th SCD – Amy D. Cubbage, Louisville 5th SCD – Mindy Barfield, Lexington 6th SCD – J. Stephen Smith, Ft. Mitchell 7th SCD – Earl M. “Mickey” McGuire, Prestonsburg

BENCH & BAR | 5 AQ & A WITH CHIEF JUSTICE

he Bench & Bar asked Chief Justice John D. Minton Jr. to ment throughout the history of the Commonwealth. comment on the state of the Kentucky justice system in the Under Kentucky’s Constitution, the legislative branch Twake of this year’s session of the General Assembly. The was given the power of appropriation, which means questions put to him and his answers are reprinted here in full. that the judicial and executive branches are almost en- tirely dependent upon that branch for funding. And It was another difficult legislative session for Kentucky’s this dynamic sets the stage for a sometimes uncom- court system. What will be the impact of the appropriation fortable tension. Our founders built this system of on judicial programs, services, and personnel? checks and balances not for our comfort but so that This was a difficul legislative session because there was a great the power of each branch is somehow kept in check deal of uncertainty during the process. But in the end, I am very by the other. pleased with our final appropriation, which leaves the Judicial Branch in its best financial position in nearly a decade. Although The e is a persistent misperception that courts are—or the Supreme Court will still need to create efficiencie within our should be—funded by litigants who pay court costs, budget to ensure we have funds to carry forward at the end of the fines and fees. But our policymakers, and ultimately fis al biennium, we will avoid the mass layoffs, program cuts and the voters of Kentucky, wisely rejected that method courthouse closures we had anticipated early in the session. of funding years ago when the Judicial Article was approved in 1976. TheJudicial Article created a unified statewide court of jus- I sincerely appreciate the efforts of our constituency—justices, tice and also created a system that funds the courts with a single judges, circuit court clerks, non-elected court employees, and law- appropriation by the legislature. Thissingle-appropriation meth- yers across the Commonwealth—who rallied around the cause of od recognizes the constitutional principle that justice is truly the adequate funding for the Judicial Branch. And I am grateful to business of state government. So with the statutorily created ex- Governor Bevin and members of the House and Senate for ap- ception of fi e percent of total court costs and fees (not to exceed preciating the role of Kentucky’s courts and ultimately realizing $2.5 million), all collected court costs, fines and fees are remitted that another biennium of extreme underfunding would have dan- to the state’s general fund. gerously undermined the ability of the Court of Justice to serve its constitutional role. I recently read the transcript of Chief Justice John S. Palmore’s March 30, 1981, testimony before the Interim Joint Committee The Kentucky Constitution describes the judicial branch as of Appropriations and Revenue. Thistestimony occurred just four separate and equal in a tripartite system. The Constitution years after the Judicial Article became effective, at a time when assigns to the courts dozens of duties and responsibilities. Yet the way by which the courts obtain resources to perform the new, unified court system was still trying to find its way within their duties seems to treat the courts as just another com- state government. peting claim on the budget. When and how were our courts relegated to the status of just another budgetary supplicant? It appears from the transcript that Palmore was called before the committee to discuss his views on the relationship between the The e has always been a struggle among the branches of govern-

6 | JULY/AUGUST 2016 Deputy Chief Justice Mary C. Noble (far right) performed the swearing-in ceremony for Chief Justice John D. Minton Jr.’s (far left) third term as chief justice of the Supreme Court of Ken- tucky. Joining him were his wife, Susan Page Minton (second from right), and daughter, Page Minton Smith.

budgetary supplicant, some years more successfully than others depending upon the political mood of the funders. Our constitutional structure means that this struggle will likely continue. Our role is to continue to educate the funders on the principle that a stable court system is the constitutional promise to all Kentuck- ians and to provide the funders with accurate, data-driven information to support our budgetary requests.

In Kansas, the legislature passed a statute that seemed to predicate the justice system’s budget on whether the Kansas Supreme Court would rule in a certain way on a case that was to come before it. Are you concerned that public opinion, as reflected in legislative chambers, does not value a viable, independent judiciary? From the very inception of the Commonwealth, Kentucky em- braced the principle of judicial independence and especially the principle of separation of powers, stating in Article I, Section 1 of the original 1792 Constitution: “The powers of the government Chief Justice John D. Minton Jr. speaking at the of the Commonwealth of Kentucky shall be divided into three 2016 KBA Annual Convention in Louisville, Ky. distinct departments, and each of them be confined to a separate body of magistracy, to wit: Thosewhich are legislative, to one; those which are executive, to another; and those which are judicial, executive and legislative branches in regard to the budget process. to another.” The transcript is fascinating to read, primarily because so much of what the Chief Justice and the committee debated regarding Despite signifi ant changes to the Kentucky Constitution in 1850 the tension among the branches is still relevant—and still being – the most signifi ant of which was to provide for the popular debated—today. election of state court judges – and again in 1891, those words supporting a separate and independent judicial branch for the With respect to the Judicial Branch budget, Palmore noted during Commonwealth survived the test of time. Th y can be found to- his testimony that “there are a certain minimum ordinary expens- day in Section 27 of the current Constitution. es that are necessary to government that must be met” and that the Judicial Branch is just “one of many things.” He also noted— Because I believe that the rule of law demands it, the lessons of as I have many times during my tenure—that the Judicial Branch history support it, and the Constitution of the Commonwealth is a “very, very small amount of the budget, insignifi ant really.” requires it, I have an obligation as the chief justice to do everything I can to maintain Kentucky’s judiciary as a separate and in- So this question of when the Judicial Branch was relegated to “just dependent branch of government, even though the independence another budgetary supplicant” probably dates to the foundation of of Kentucky’s judicial branch has, over the 200-plus year history the Commonwealth. Theebb and fl w of Kentucky’s desire for an of the Commonwealth, been more of an aspiration than a reality. independent judicial branch appears across the arc of our history. Certainly, the issue of full legislative funding for the judiciary Despite these historical difficultie I do believe the public values a brought a narrower focus with the adoption of the Judicial Arti- viable and independent judiciary. Thissupport was evident during cle. But broadly speaking, Kentucky’s courts have always been a this last budget session, which was a success, in part, thanks to the public outcry following the proposed cuts to the Judicial Branch.

BENCH & BAR | 7 Q & A WITH CHIEF JUSTICE

I think this is reflecti e of the public’s understanding and appre- (CCJ), which is an organization of state Supreme Court chief jus- ciation of the services and programs the court system provides to tices from across the country. TheCCJ adopted a resolution in July the Commonwealth. 2015 that recognized the importance of closing the justice gap. Resolution 5, titled “Reaffirming the Commitment to Meaningful What happened in Kansas could certainly—and frighteningly— Access to Justice for All,” supports the “aspirational goal of 100 happen anywhere. But I fi mly believe that Kentucky’s court sys- percent access to effective assistance for essential civil legal needs.”6 tem has a strong relationship with the other two branches and Theresolution further urges members of the CCJ “to provide lead- that this most recent budget session is reflecti e of the Common- ership in achieving that goal.”7 As your chief justice, I intend to wealth’s commitment to maintaining a strong, independent Judi- work with the bar over the next several years and provide the lead- cial Branch. ership necessary to work toward closing the justice gap and improving access to justice for all Kentuckians. By some measures, the need for legal services has never been greater. How well are courts and lawyers meeting the Judicial salaries have barely budged in Kentucky for a de- need? cade. The argument for a well-compensated judiciary has Thistopic is particularly timely, given the recent remarks by Wil- been that good salaries are necessary to acquire and retain liam C. Hubbard, immediate past president of the American Bar top-level legal professionals as judges. Do you sense by any measure a lack of interest on the part of lawyers to becom- Association, at the National Conference of Bar Examiners annual ing judges for that reason? conference in April. Mr. Hubbard’s remarks were focused on the “justice gap,” which, he noted, “imperil(s) the health of our justice In some regions of the state, yes. Thecosts related to running for system and our nation today” and “is a fundamental flaw in the offic and the relatively low pay for judges may be a deterrent fabric of our democracy.”1 for otherwise qualified candidates. Thisis especially true for lawyers who are engaged in a successful private practice. Our judicia- According to Mr. Hubbard, the number of people who do not ry draws heavily from those in the public sector, which brings a have meaningful access to our civil justice system is staggering— wealth of institutional knowledge to the bench. But it also denies approximately “80 percent of the poor” and “50 percent of people us the opportunity to form a more diverse judiciary. of moderate means.”2 The immediate past president of the Con- ference of Chief Justices, Chief Justice David E. Gilbertson of Thereality is that judicial salaries in Kentucky are woefully inad- South Dakota, reported during his remarks to the ABA House of equate to compensate judges properly for the amount of time and Delegates that “at least one party is self-represented in three- effort they put into their jobs. A 2015 study of judicial compensa- fourths of civil cases in the state courts of the [United States].”3 tion from the National Center for State Courts shows just how far Thislack of access to justice is particularly alarming given the “un- Kentucky has fallen behind other states. Thesalaries for our circuit precedented number of lawyers and law graduates [who] cannot court judges rank 42nd out of 50 states and last among the states find legal ork.”4 surrounding Kentucky.

As a court system, we have watched our caseloads decline since the Equally troubling is that low salaries have been compounded by beginning of the Great Recession. We know that more litigants are recent reductions in pension benefits for the new judges coming choosing alternative dispute resolution because the courts simply on board. This decline, if unchecked, could have a long-term ef- are not meeting their needs. And we know that a growing num- fect on Kentucky’s ability to attract exceptional lawyers to judicial ber of litigants who are coming to court are doing so without law- offi . Judges make far-reaching decisions every day and everyone yers, either because they think they do not need a lawyer or they who comes before the courts must have confidence in the abilities cannot afford one. We need to learn how we can evolve and adapt of those sitting on the bench. to meet the changing needs of the people we serve. This past summer, I convened an independent Judicial Compen- As William Hubbard noted during his recent remarks, lawyers sation Commission consisting of community leaders from across also must learn how to adapt to—and coexist with—the evolving the state to study the issue of compensation for judges. Thecom- face of the legal system. This includes the ability to embrace, at mission reviewed data relating to the salaries of Kentucky judges least to some degree, some of the internet-based legal services like and seemed most compelled by the fact that since FY 2009, judges LegalZoom and Avvo. Whether we like it or not, these services have received only two salary increases of 1 percent each. Those are not going away. In fact, their share of the market is only grow- were preceded by two years—FY 2007 and 2008—when judges ing larger. So we must learn how to work with these platforms received only $400 increases. Thismeans that it has been a decade while simultaneously “preserving our own roles as legal experts, since Kentucky’s justices and judges have received a measurable counselors, and advocates in accordance with the highest tradi- increase in compensation. tions and standards of our profession.”5 Thismay include, as it has in some states, efforts by the bar and the Court to study and adopt The Commission concluded that there is a critical need to up- rules regarding the licensure of new types of legal service profes- wardly adjust the compensation of justices and judges in Kentucky sionals that are focused on addressing the justice gap. and ultimately recommended a fi e percent increase in judicial salaries in each of the next two fis al years. Unfortunately, the leg- I am currently the president of the Conference of Chief Justices islature did not approve an increase in judicial compensation this

8 | JULY/AUGUST 2016 session. But improving judicial salaries will continue to top my caseload model that calculates judicial need based on each court’s list of budget priorities in the coming years because I believe this total workload. The final analysis also included a calculation of issue to be of critical importance to the health and viability of the judicial need compared to the total number of judges currently court system. authorized. The full report of the Judicial Workload Assessment Committee can be found on the Kentucky Court of Justice website. The Administrative Office of the Courts conducted a study of how judges spend their working time. Can you describe the The second question that is yet to be answered is how our re- study and what it found out? sources should effectively and efficien y be deployed across the The FY 2014 – 2016 Judicial Branch budget included language Commonwealth. This second phase of the study will ultimately directing the Administrative Offic of the Courts to “develop and result in a judicial redistricting plan that we intend to submit to implement a weighted caseload system to precisely measure and the General Assembly before the next legislative session. Both the compare judicial caseloads throughout the Commonwealth.” This weighted caseload model and public policy considerations—i.e., language was in response to increasing demands from certain leg- maintaining access to justice, equitable allocation of judicial re- islators for a statewide judicial redistricting plan to be conducted at sources and geographic continuity—will be used to analyze the the same time and in the same manner as legislative redistricting. potential impact of reconfigu ing circuit and district boundaries. Under this scenario, the redrawing of judicial circuit and district We also intend to study the feasibility of establishing family courts boundary lines would be based solely on population. We know in each jurisdiction. that workload—not population—should be the deciding factor in determining judicial boundaries because population-based re- Advocates for the selection—as opposed to the election—of districting ignores the impact of geographic and social factors on judges argue that the process should not be political. In the court workloads. So we specifi ally requested that the legislature modern era, isn’t the selection of judges where it occurs at include the language in our budget bill regarding the weighted least as political as electing them? caseload study to give us an opportunity to gather and analyze Theissue of judicial election versus other models of judicial selec- the information we needed in order to develop a methodical, da- tion has been debated for years. Proponents of the appointment ta-driven redistricting plan. model claim it takes politics out of the selection of judges. But in recent years, the attractiveness of that model—particularly in The first question we had to address was how many judges are states with retention elections—has lessened considerably because needed to resolve cases across the Commonwealth. We got that of the infusion of outside money into the process. Thefact is that answer following a statewide time study that required judges to all current models of judicial selection involve a political process, record their case‑related and non-case-related time to provide an and none seems superior to the other. accurate picture of the judicial workday. The data underwent a quality adjustment process and was evaluated by an advisory com- Kentucky has reaffirmed its commitment to electing judges since mittee consisting of judges, circuit court clerks and prosecutors 1850. Under both the 1792 and 1799 Constitutions, judges in before it was analyzed by the NCSC. The result was a weighted Kentucky were appointed by the governor. But that changed under the 1850 Constitution when all judicial office became elected. This put our judges, as one author has noted, “smack-dab in the colorful world of Kentucky electoral politics.”8 During the debates surrounding the Judicial Article in the late 1970s, there was a push by several groups – including the League of Women Voters – to return Kentucky’s judiciary to a selection model. But that effort was resoundingly rejected by the voters.

What is your vision for the Kentucky court system for five years, 10 years, 25 years from now? The e are several projects—some ongoing and some new—that I would like to continue or pursue during my tenure as chief justice.

Since I first took offic in 2008, I have made it clear that my top priority is technology. We have set the stage for a paperless court system by implementing statewide eFiling

BENCH & BAR | 9 Q & A WITH CHIEF JUSTICE

and working behind the scenes on an electronic case management reform Kentucky’s juvenile justice system and overhaul its penal system for both our trial and appellate courts. My goal is to con- code to curb prison costs and improve public safety. tinue that progress by providing technology that is useful for the courts and those that access the courts. We know that improving He is president of the national Conference of Chief Justices and our technology infrastructure will eventually allow us to reduce an alumnus of the prestigious Toll Fellowship Program. He grad- redundancies within the system by moving to centralized admin- uated from University of Kentucky College of Law and Western istration of certain functions, such as bookkeeping, that are cur- Kentucky University, which inducted him into the WKU Hall of rently operated out of our 120 separate branch office Distinguished Alumni in 2013. He was also named Distinguished Jurist in 2012 by the University of Kentucky College of Law I also want to look at innovative ways to recapture the cases we Alumni Association. Chief Justice Minton was in private practice have lost by making the courts a more attractive option for dispute and served as a Circuit Court and Court of Appeals judge before resolution. Part of this includes the need for civil justice reform to being elected to the Supreme Court in 2006. reduce the cost and delay that creates a burden for some litigants. ABOUT THE AUTHOR And I want to work with the bar to find effective ways to close JAMES P. DADY the justice gap by providing broader representation in civil cases. I is a litigator with Gerner would also like to consider creating a business court to better ad- & Kearns Co., LPA at its offic in the his- dress the needs of commercial parties. Business courts have prov- toric James Taylor Mansion in Newport. en to be successful in other jurisdictions and provide an incentive He is the editor of the Bench & Bar, a fre- for states in terms of economic development. quent contributor to the magazine, and chairman of the KBA’s Communications Another goal would be to address the cost and utility of law school and Publications Committee. and the bar exam for young people entering our profession. And ENDNOTES we must continue recent efforts to diversify the bar by making the 1. Remarks of William C. Hubbard, Immediate Past President of the Amer- practice of law more enticing to people from a variety of back- ican Bar Association, National Conference of Bar Examiners, April 15, grounds. 2016, Washington, D.C. 2. Id. Finally, it will remain a top priority to improve the salaries of 3. Id. 4. Id. judges in the Commonwealth so that we continue to attract the 5. Id. most qualified andidates to the bench. 6. Conference of Chief Justices and Conference of State Court Administra- tors, Resolution 5, “Reaffirming the Commitment to Meaningful Access ABOUT JOHN D. MINTON JR. CHIEF JUSTICE OF KENTUCKY to Justice for All,” July 2015, available at https://www.ncsc.org/~/media/ JOHN D. MINTON JR. Microsites/Files/access/5%20Meaningful%20Access%20to%20Justice% first became chief justice in 2008 as the 20for%20All_final.ash . recession plunged Kentucky into an economic crisis. Faced with 7. Id. steering the Judicial Branch through a period of financial duress, 8. Kur t X. Mexmeier , Micha el Whit eman, & Jason Neme s, Unit ed At he made a commitment to invest in the people who operate the Last: The Judicia l Ar t icl e a nd t he S t r uggl e to Ref or m Ken- tu cky’s Cour t s, p. 22. courts and in the court technology that would reduce costs and deliver better service. Eight years later, his efforts have produced a stronger, leaner court system that has launched a sweeping eCourts initiative, implemented eFiling in all 120 counties and overhauled the Judicial Branch salary structure for the first time in decades. He is also seeking funding for a long over- due improvement to judges’ salaries.

His leadership has brought positive change to legal procedure and public policy. During his tenure, the Supreme Court has adopted the state’s first uniform family law rules and Juvenile Court rules. TheAdministra- tive Offic of the Courts has conducted a study to measure the caseloads of judges as the basis for addressing any workload imbalances among jurisdictions. And Chief Justice Minton has joined forces with the Executive and Legislative branches to

10 | JULY/AUGUST 2016

THEFeatures: FUTURE OF LAW PRACTICE

uch has been written regarding the intersection of E-Discovery and ethics. A great deal of the literature Mfocuses on the basic duty of competence owed by every attorney: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation.”2

In most jurisdictions, fulfi lment of this duty is framed by rules of procedure and case law.3 For example, procedural rules may mandate preservation or disclosure requirements, which, if counsel chooses to ignore or consciously breach, places him or her in ethical peril. Other duties, some regulatory or court imposed, may be implicated as well.4

12 | JULY/AUGUST 2016 In states with well-defined rules or guidance from appellate courts, Fundamental to comprehending ESI issues is the realization that attorneys are better equipped to be zealous advocates for their cli- until printed, all digital evidence is intangible—it exists in a neth- ents and avoid costly missteps. Forty-eight states, the District of erworld of code stored within our devices or at an offsite and per- Columbia, and United States federal courts have adopted some haps unknown location. Theintangibility of digital evidence sep- degree of E-Discovery rules.5 Kentucky, however, has neither rules arates it from paper on several grounds: 6 nor guidance from appellate courts. • It is easy and cheap to store and it is stored in multiple locations — such as how a phone may be synched Unfortunately, this lack of rules or guidance creates issues for to both a computer and the cloud; Kentucky attorneys. Theissues involve traditional discovery7 diffi- culties such as preservation, recovery, production and privilege— • It is fast—data moves from one side of the world to all of which are magnified by the amount of information now another with the click of a mouse; generated by society. Because the Commonwealth lacks specific • It can be ephemeral—some portions may be easily E-Discovery rules of criminal and civil procedure, attorneys are erased or routinely deleted, such as with routine file left to grapple with complicated legal and technical concerns. maintenance; THE EXPLOSION OF INFORMATION • It contains metadata which can be altered every time Digital information is ubiquitous—it exists in every type of case a file is etrieved; and from small claims court to complex multi-district federal litiga- • In some instances it allows us to determine when and 8 tion. Indeed, the use of social media posts, text messages and who retrieved or altered the data. emails is increasingly commonplace in local courts.9 ALL THAT INFORMATION AND THE Electronically stored information (ESI) consists of data that we PRACTICE OF LAW 10 create with and without conscious effort. It includes items con- Given the differences between paper and data, discovery now bears sciously created such as emails and documents, as well as data cre- little relationship to what the majority of Kentucky attorneys once ated without conscious thought such as metadata, backup files knew and practiced. For instance, consider commonplace docu- black boxes on vehicles, and cell phone location. Undoubtedly, ment production scenarios as we once knew them. Picture musty data created without conscious effort is surprisingly copious, and boxes of old records stored in the closet or file room of a mid-sized thus plentiful fodder for the discovery grist mill. In some cases, company client. Counsel, or more likely an associate or paralegal, this unintentionally generated information may be of greater im- tediously combs through hundreds, maybe thousands, of pages of port than data willfully generated. records looking for responsive documents. Once identified counsel carefully checks for privileged material and then produces the Thewealth of information created in this digital age is nearly un- records to the requesting party. fathomable. According to recent estimates: the number of emails sent and received per day in 2015 totaled over 205 billion, with a projected increase of three percent over the next four years;11 “Perhaps litigators should consider that courts no the number of business emails sent and received per user per day longer recognize E-Discovery inexperience (either 12 totals 122 billion; and nearly two-thirds of American adults (65 on the litigator’s or client’s part) as an excuse for 13 percent) use social networking sites. While larger computing failure to produce or comply with discovery obli- device use remain fairly consistent with 78 percent of adults under 14 gations, and that courts, generally, seem to fin the age of 30 owning a laptop or desktop, small handheld device E-Discovery disputes even more insufferable than use is soaring. In fact, 64 percent of American adults now own a 15 traditional discovery disputes.” smartphone and tablet computer ownership is up to 45 percent 16 among adults. Thesheer volume of data created, stored, deleted, – Monica McCarroll, Discovery and the Duty of and copied can hardly be grasped. Competence, 26 Regent U. L. Rev. 81 (2014).

Given this wealth of information, it is not surprising that lawyers are increasingly adept at sniffin out relevant digital data to assess Fast forward to 2016 and ask, “where are the records?” Some re- the merits of litigation and for use at trial. As noted by experts in cords may exist in paper form, but most will be maintained on the field “[s]ince the beginning of the 21st century, electronic dis- computer hard drives, and they may no longer exist as a result of 17 covery has been the hottest topic in litigation.” In fact, judicial routine document retention or disposal policies. To further com- opinions regarding E-Discovery are being issued at rates compa- plicate matters, some records may be contained on archival disks, 18 rable to overall trends in data production. Bigger fi ms and many some may be stored off-site in a third party’s cloud computing corporations now contain departments and staff to deal with ESI storage, and then there are those pesky messages between our cli- 19 issues. Nationwide, courts are becoming more accustomed to ent’s employees, managers, and third parties. Since we do most of dealing with ESI—whether on the front end during discovery or our communicating today by email and texting, those records are the back end at trial. also stored somewhere on a computer or an employee’s phone, tablet, handheld device, or all of the above. Each electronic “document” may also contain hidden data which indicates how and

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when the document was created, last modified or viewed. Thi Counsel should preliminarily be able to assess whether data is data reveals edits which may have been made, including notations likely to exist, where it might exist within a client or witness’s data by in-house counsel. Plainly stated, “[t]he days of simply photo- storage system(s), and the probable costs associated with preserva- copying and reviewing the contents of a file cabinet have passed.”20 tion. Early on, counsel should also determine whether the client, the opposing party, or the relevant court require that the litigation Juxtapose modern day ESI reality with the duty of competence. be conducted as an E-Discovery case. If unable to perform these One commentator aptly describes the impact of modern day ESI tasks, attorneys run the risk of sanctions or discipline.28 In some as “seismic.”21 To avoid malpractice traps and the court’s ire, to- instances, a multi-disciplinary team approach may be necessary day’s counsel must be at least somewhat familiar with common- to conduct such an initial evaluation.29 Thisteam might include place storage and retrieval strategies, preservation issues, produc- outside and in-house counsel, personnel familiar with the client’s tion formats, and metadata.22 If counsel is not comfortable with IT structure, and compliance officer such topics—and most are probably not—they should be prepared to either (1) acquire such knowledge before undertaking represen- In the California Bar’s hypothetical, an attorney might be subject- tation in a manner involving ESI, (2) associate with other counsel ed to discipline where the attorney “failed to make an E-Discov- and relevant experts, or (3) decline the representation. ery evaluation early” to determine case specific E-Discovery needs and his own E-Discovery capabilities prior to the first court or- ETHICAL DUTIES AND E-DISCOVERY dered case management conference.30 Such an assessment requires Given the fundamental difference between the information of some degree of experience and “a working knowledge of the case yesteryear and the modern reality of information availability, law and professional literature.”31 Too often, E-Discovery failures “old-fashioned” discovery management may invite ethical issues. result in sanctions because evidence is not timely produced or is Essentially, a lawyer who is not capable of addressing ESI issues, lost altogether.32 or procuring the assistance of others, may not be competent under emerging ethical standards.23 B. IMPLEMENTATION OF ESI PRESERVATION PROCEDURES The Kentucky rule of competence is derived from ABA Model One of the distinguishing characteristics of ESI is that it is ethe- Rule of Professional Conduct 1:1. The ABA commentary now real—it lacks substance and can disappear. Data can be lost for a states that lawyers must “keep abreast of changes in the law and its variety of reasons and some are neutral such as technological fail- practice, including the benefits and risks associated with relevant ure or routine document retention or disposal policies. Theloss of technology.”24 While the commentary to the Kentucky rule has relevant ESI, regardless of whether the loss is neutral or nefarious, not been amended to include this specific language, guidance can creates severe repercussions for lawyers and clients. A lawyer or be found within our existing commentary: “To maintain the req- a party with superior access to information who engages in “ad- uisite knowledge and skill, a lawyer should keep abreast of chang- vantage seeking behavior” by permitting or encouraging the loss es in the law and its practice.”25 The advent of ESI is arguably a (spoliation) of information reasonably necessary for litigation is change in legal practice. Plus, a growing body of case law and eth- subject to sanctions and attorneys are subject to discipline.33 ics opinions from other jurisdictions should serve as a cautionary flag or Kentucky lawyers who wish to practice in ESI cases. Generally, the obligation to preserve evidence arises when parties knew or should have known that evidence may be relevant For example, the State Bar of California recently opined that at- to future litigation, or it may arise from statutes or regulations.34 torneys handling E-Discovery matters, either by themselves or In some jurisdictions, lawyers have been sanctioned by bar au- in association with competent co-counsel or expert consultants, thorities for unethical conduct relating to the lack of “experience should be able to: initially assess E-Discovery needs and issues, in electronic discovery” which resulted in the loss (spoliation) of implement appropriate ESI preservation procedures, analyze and evidence.35 For attorneys, the failure to institute a sufficien “lit- understand a client’s ESI systems and storage, advise the client on igation hold” for potentially relevant data can be problematic.36 available options for collection and preservation of ESI, identify Counsel should also be cautioned that courts may impose sanc- custodians of potentially relevant ESI, engage in competent and tions relating to a party’s failure to comply with discovery orders, meaningful meetings and confer with opposing counsel concern- including those involving retention and production of ESI.37 ing an E-Discovery plan, perform data searches, collect responsive Where a pattern of “ineptitude and missteps” by counsel or a party ESI in a manner that preserves the integrity of that ESI, and pro- results in the withholding of data relevant to litigation, extremely duce responsive non-privileged ESI in a recognized and appropri- hefty sanctions may result.38 ate manner.26 This broad opinion summarizes what has become the standard of practice in much of the country. In Kentucky, though spoliation issues are normally dealt with through jury instructions, a lack of applicable case law, statutes, A. INITIAL ASSESSMENT OF E-DISCOVERY and procedural rules makes it difficul to determine when liti- NEEDS AND ISSUES gation could be reasonably anticipated. Cautious attorneys who Not every case involves E-Discovery, but in today’s increasingly adopt a “better-safe-than-sorry” approach should consider imple- technological world, nearly every case potentially does.27 It is al- mentation of a litigation hold whenever a credible threat exists most a certainty that in all litigation some party, employee, or wit- that the client will become involved in litigation.39 ness has utilized an electronic device which stores ESI.

14 | JULY/AUGUST 2016 C. TIMELY COLLECTION AND PRODUCTION sizes, can easily be seen by users; other metadata can be hidden OF RESPONSIVE ESI from users but are still available to the operating system or the 50 Though much of the developing law relating to ethical issues in- program used to process the data set or document.” Thosecom- volving ESI concerns counsel’s competence, or lack thereof, of ments, deletions and corrections are ripe for ESI savvy lawyers greater concern may be those instances involving breaches of the who employ a technique known as “metadata mining”—purpose- duties of candor and fairness. Lawyers are barred from unlawfully fully searching for metadata inadvertently sent by a producing at- obstructing another party’s access to evidence, knowingly disobey- torney, which is hidden within an electronic document and may 51 ing an obligation under the rules of the tribunal, deliberately re- include privileged information. fusing to make reasonably diligent efforts to comply with a legally proper discovery request, and knowingly making false statements Under our ethics rules, “[a] lawyer shall not reveal information of fact.40 relating to the representation of a client unless the client gives informed consent.”52 In some states, ethics opinions specifi ally In essence, these rules ensure that truthful information is present- address the affirmative duty of counsel to ensure that confide - 53 ed to the courts, juries and opposing counsel so that each may rely tial metadata is protected from inadvertent disclosure. By way on that information in making decisions.41 Attorneys who allow of example, the Mississippi Bar has determined that “[c]onfide - inaccurate digital information to be presented to opposing coun- tial information contained within the metadata is subject to the sel or the court risk adverse jury instructions; monetary sanctions, provisions” of the ethics rules regarding protection of a client’s 54 such as the imposition of fines shifting of attorney’s fees; and confidential in ormation. disciplinary action. Lawyers who inadvertently disclose confi- “In a clawback agreement, both parties Theuse of “scorched-earth” or obstruction- dential information contained within ESI ist approaches to discovery is particularly to a dispute agree in writing that in- also risk waiver of any privilege, potentially 55 problematic and may run afoul of ethical advertent production of privileged ma- harming their client’s interests. Recog- canons. In Wachtel v. Health Net, Inc., an terials will not automatically constitute nizing this risk, knowledgeable attorneys ERISA action, counsel repeatedly failed to a waiver of privilege. If the producing may seek to enter into “non-waiver” agree- preserve emails, did not produce relevant party realizes the disclosure in a reason- ments with opposing counsel to protect a documents, and used boiler plate objections able time, it can request the document's responding party from the consequences to obstruct or delay the production of ESI.42 return, or “claw it back,” and the other of an inadvertent waiver. However, counsel This led the court to conclude that coun- should be aware that such agreements may party must comply. Therequesting par- 56 sel’s strategy had been “a concerted war to not be enforceable against third parties. 43 ty is presumptively barred from using waste huge time and resources.” Further, the privileged document to further its These agreements, now better known as the corporate defendant failed to timely client's case.” search and produce responsive documents “clawback provisions,” “evolved as a con- thereby inhibiting the plaintiff ’s ability to – Laura C. Daniel, The ubious tractual safeguard to mitigate the risk of adequately prepare for depositions and dis- Origins and Dangers of Clawback inadvertent waiver of the attorney-client positive motions, willfully concealed that and Quick-Peek Agreements, 47 privilege or work-product doctrines,—es- ESI searches never occurred, compelled Wm. & Mary L. Rev. 663, 666 pecially when dealing with a large volume 57 the plaintiffs to repeatedly seek court in- (2005). of documents.” Because inadvertent dis- tervention for discovery abuses, employed closures in cases involving large amounts a strategy of delay, and concealed non-compliance with court or- of ESI are possible, some jurisdictions incorporate “clawback” pro- 58 ders regarding discovery matters by “systematically ignoring ad- visions within their procedural rules. Even absent such rules, as verse rulings.”44 As such, “aggressive sanctions” were appropriate.45 in Kentucky, lawyers competent in ESI issues should know of the risk associated with unintentional disclosures and prepare for that D. DISCLOSURE OF CONFIDENTIAL ESI eventuality by associating with qualified experts and executing Lawyers who lack competence with regard to E-Discovery issues non-waiver agreements with opposing counsel. may be unaware of the risks associated with the unintentional production of confidential material to an opposing party. These CONCLUSION disclosures typically, but not always, occur when counsel fails to Ultimately, attorneys bear responsibility for the conduct of discov- 59 ensure that discovery materials are scrubbed to eliminate prob- ery. A lawyer’s conduct in handling ESI issues which the lawyer lematic metadata.46 is not competent to handle alone, even without Kentucky specific civil or criminal rules of procedure, presents a risk of sanctions Metadata is information that characterizes data—i.e., data about for unethical or impermissible conduct. Theseproblems arise from data.47 “In essence, metadata answers who, what, when, where, the failure to properly assess the ESI implications of a particular why, and how about every facet of the data that are being docu- piece of litigation, an inability to handle the ESI issues, the failure mented.”48 It includes retained data relating to a document’s “ti- to preserve all relevant evidence in a timely and effective fashion, tle, author, date of origin, content, size and location, but may also the failure to produce responsive data, or the inadvertent disclo- include corrections, comments, deletions and other information sure of privileged data. Though Kentucky lacks procedural rules stored in track changes.”49 “Some metadata, such as file dates and and case law relating to most E-Discovery issues, experiences in

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other jurisdictions suggest that prudent counsel should develop within public records). some degree of familiarity with technology trends in litigation 6. Electronic Discovery Law, supra note 5 (noting that only Kentucky and South Dakota have failed to adopt at least some E-Discovery specific ules and either decline to accept representation in cases involving ESI, of procedure). or associate with other, more qualified counsel and seek appropri- 7. Monica McCarroll, Discovery and the Duty of Competence, 26 Regent U. L. ate expert non-lawyer technical assistance. Given that nearly all Rev. 81, 86 (2014) (“At its essence, discovery is about finding and d velop- cases likely involve ESI issues, Kentucky lawyers can ill afford to ing facts to support or refute your client’s position.”). 8. Ryan P. Newell, The E-Discovery Promised Land: The se Of E-Neu- ignore the reality of the modern digital world. trals to Aid the Court, Counsel, And Parties, 15 Del. L. Rev. 43, 44 (2014) (“While E-Discovery was once associated only with large complex civil cas- ABOUT THE AUTHOR es, the current reality is that ESI is implicated in nearly every case in every DAVID A. TAPP court.”); see also Nancy Levitt, Family Law In TheTwenty-First Century: An serves as Judge of the 28th Annotated Bibliography, 21 J. Am. Acad. Matrim. Law. 271, 331-32 (2008) Judicial Circuit. He previously severed as an (including 40 ESI related articles for matrimonial attorneys). adjunct professor of law at the University of 9. Schreiber v. Schreiber, 29 Misc. 3d 171, 177 (N.Y. Sup. Ct. 2010) (“As it pertains to matrimonial matters, electronic discovery may be crucial [in the Louisville where he teaches E-Discovery. proper cases] to determine and confi m the existence of vital information.”); He writes and presents frequently on a wide Fawcett v. Altieri, 38 Misc. 3d 1022 (N.Y. Sup. Ct. 2013) (personal injury variety of justice related issues. case involving disclosure of social media posts). 10. ESI can be defined as “writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations—stored in any medium from which information can be obtained either directly or, if ENDNOTES necessary, after translation by the responding party into a reasonably usable 1. The author g atefully acknowledges the assistance of Shane Orr, KCOJ form.” Fed. R. Civ. P. 34(a)(1)(A). Staff ttorney; Ashley Stearns Hoover, J.D. Candidate, University of Ken- 11. The adicati Group, Email Statistics Report, 2016-2019, http://www. tucky School of Law; and Molly Hardy, J.D. radicati.com/wp/wp-content/uploads/2015/02/Email-Statistics-Re- 2. SCR 3.130(1.1). port-2015-2019-Executive-Summary.pdf (last visited April 22, 2016). 3. Debra Bassett, E-Pitfalls: Ethics and E-Discovery, 36 N. Ky. L. Rev. 449, 12. Id. 450 (2009) (noting statutory law may create responsibilities and liabilities 13. Andrew Perrin, Social Media Usage, 2005-2015, Pew Research Center, supplanting ethics rules); see also Fed. R. Civ. P. 26(a)(1)(A) (requiring par- October 8, 2015, http://www.pewinternet.org/2015/10/08/social-network- ties disclose copies or a description by category and location of ESI prior ing-usage-2005-2015/ (last visited April 22, 2016). to receiving discovery requests); Fed. R. Civ. P. 34(b)(2)(D)(ii) (requiring 14. Monica Anderson, Technology Device Ownership 2015, Pew Research Cen- production of ESI in form ordinarily maintained unless production format ter, October 29, 2015, http://www.pewinternet.org/2015/10/29/technolo- otherwise specified) gy-device-ownership-2015/ (last visited April 22, 2016). 4. While no specific Kentu ky ethics rule applies to E-Discovery, our general 15. Aaron Smith, US Smartphone Use in 2015, Pew Research Center, April rules easily embrace common attorney lapses involving ESI, including the 2, 2015, http://www.pewinternet.org/2015/04/01/us-smartphone-use- making of false statements of fact to opposing counsel or the court, offering in-2015/ (last visited April 22, 2016). false or fraudulent evidence, unlawfully obstructing access by another party 16. Anderson, supra note 14. to evidence, or disobeying court orders regarding scheduling or preservation 17. Shira A. Scheindlin et al., Electronic Discovery and Digital Evidence: Cases of evidence. See SCR 3.130(4.1) (truthfulness in statements to others); and Materials (2d ed. 2012). SCR 3.130(3.3) (candor toward the tribunal); SCR 3.130(3.4) (fairness to 18. Stephanie W. Pugsley, eDiscovery: It’s Time to Drop the “E,” 27 Utah B.J. 14, opposing party and counsel). 14 ( July-Aug. 2014). 5. Electronic Discovery Law, Current Listing of States That ave Enacted 19. Sally Kane, Breaking Into E-Discovery, Law Practice Today ( Jan. 2012) E-Discovery Rules, http://www.ediscoverylaw.com/state-district-court- (“According to a 2011 survey by The C wen Group, a legal technology rules/ (last visited April 22, 2016). The dvent of E-Discovery rules came in staffing m, 30% of fi ms are adding e‐discovery attorneys.”). 2006 with the U.S. Supreme Court’s approval of E-Discovery amendments 20. Pugsley, supra note 18, at 14. to the Federal Rules of Civil Procedure. Some states are “replicas”—states 21. McCarroll, supra note 7, at 81. which have essentially adopted some version of the federal rules, but utilize 22. “While lawyers do not need to become computer specialists, they must their own numbering system. Institute of the Advancement of the Ameri- understand computer science and how it is to be applied from discov- can Legal System, Unlocking E-Discovery: A Toolkit for Judges in State Courts ery through trial. Lawyers fail to do so at their peril, and at the risk of Across the Nation 12 n.3 (2013) (including Florida, Iowa, Maryland, New damaging the clients they represent.” Jay E. Grenig et al., 1 eDiscovery and Jersey, Michigan, Tennessee, Virginia, and Wisconsin). Other states have Digital Evidence § 10:7 (March 2016). adopted at least minor changes. See T. Allman, E-Discovery in Federal and 23. SCR 3.130 (1.1). Even associating with others, including third party State Courts: The Im act of Rulemaking—Past and Future 2 n.13 (2014) (de- vendors, is not without risk given the ethical constraints to supervise subscribing Colorado’s amendment to C.R.C.P. 45(a)(1)(A)(3)(iii) regarding ordinate lawyers and non-lawyers. See SCR 3.130(5.2) (responsibilities of a subpoena duces tecum practice to require production of “designated books, subordinate lawyer); SCR 3.130(5.3) (responsibilities regarding non-lawyer papers and documents, whether in physical or electronic form (‘records’)”). assistants). 24. ABA Model Rules of Prof ’l Conduct r. 1.1 cmt. 8. A slight amendment to the Kentucky criminal rules is scheduled for 25. SCR 3.130(1.1) cmt. 6 (emphasis added). consideration by the Kentucky Supreme Court in late spring 2016. That 26. California State Bar Formal Opn. No. 2015–193, at 4 (2015). proposed amendment would simply add the words “data” and “data compi- 27. Id. at 3 (emphasis added). lation” to RCr. 7.24 (discovery) and RCr. 7.02 (subpoena duces tecum), thus 28. Counsel may have good reason to agree to handle an ESI matter as a mirroring the federal rules and the Kentucky Rules of Evidence. See Fed. “paper” case. In doing so, however, best practices would probably involve R. Crim. P. 16(a)(1)(E) (“Upon a defendant’s request, the government must consulting with, and obtaining approval from, the client as potentially permit the defendant to inspect and to copy or photograph books, papers, valuable evidence could be overlooked. documents, data, photographs, tangible objects, buildings or places, or cop- 29. Michelle Doughtery, The Com liance Role in Litigation Response Planning for ies or portions of any of these items.”) (emphasis added); Fed. R. Crim. P. E-Discovery: Five Steps Health Care Organizations Should Follow to Develop 17(c)(1) (“A subpoena may order the witness to produce any books, papers, a Successful Plan and Process, 11 No. 3 J. Health Care Compliance 43 (May- documents, data, or other objects the subpoena designates.”) (emphasis June 2009). When done in-house, prior to retaining outside counsel, the added); see also KRE 803(6) (including data compilations in business re- initial evaluation may be known as a “discovery readiness assessment” or a cords exception); KRE 1001 (including data compilations within definiti n “litigation preparedness survey.” Richard Finkelman & Andrew Teichholz, of writings and recordings); and KRE 1005 (including data compilations

16 | JULY/AUGUST 2016 In-Sourcing and Outsourcing E-Discovery, 22 No. 3 Prac. Litigator 13, 15 46. In some cases, scrubbing can itself raise issues such as when the metadata (May 2011). reveals relevant non-privileged evidence. “On one end of the spectrum, 30. California State Bar Formal Opn., supra note 26, at 4. scrubbing metadata is subject to sanctions because it changes the inher- 31. Craig Ball, What Every Lawyer Should Know About E-Discovery: You Need ent qualities of electronic documents. While on the other end, scrubbing To Fully Understand Far More ThanThe Basic, 42 No. 2 Law Prac. 54, 56 metadata from electronic documents is feasible when it is not relevant to (2016). the litigation.” Emily Litzinger The Ethi al Dilemma Of Scrubbing Metadata: 32. Bob Rohlf & Scott Giordano, The ive Pillars of In-House E-Discovery, 30 The athway To A Better Approach, 36 N. Ky. L. Rev. 611, 627-28 (2011). No. 10 ACC Docket 40, 42 (Dec. 2012). 47. E. King, The Ethics o Mining for Metadata Outside of Formal Discovery, 113 33. Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1328-29 (Fed. Cir. Penn. St. L. Rev. 801, 806 (2009). 2011). “Spoliation is the destruction or signifi ant alteration of evidence, 48. M. Cohen et al., E-Discovery and Electronic Evidence Update, 42 The dvo- or the failure to preserve property for another’s use as evidence in pending cate (Texas) 1 (Spring 2008). or reasonably foreseeable litigation.” Graff v. Baja Marine Corp., 310 Fed. 49. Id. Appx. 298, 301 (11th Cir. 2009). While Kentucky recognizes the term 50. Id. “spoliation,” it does not recognize a separate tort action as in other jurisdic- 51. King, supra note 47, at 830-31. See also ABA Formal Op. 06-442 (2006) tions. Monsanto v. Reed, 950 S.W.2d 811 (Ky. 1997). (discussing the ubiquitous nature of metadata and the ethical issues associ- 34. In Re Delta/Airtran Baggage Fee Antitrust Litigation, 770 F.Supp.2d 1299, ated with counsel’s search for and use of metadata). 1307 (N.D. Ga. 2011) (citing Managed Care Solutions, Inc. v. Essent Health- 52. SCR 3.130(1.6) (confidentiali y of information). care, Inc., 736 F.Supp.2d 1317, 1324–25 (S.D. Fla. 2010)). 53. Miss. Bar, Ethics Op. No. 259 (2012) (collected formal opinions from 17 35. In Re Kenneth Paul Reisman, Mass. Board of Bar Overseers Public Repri- states relating to confidentiali y of client information contained within mand No. 2013-21 (Oct. 2013) (involving counsel’s failure to preserve hard metadata). drive for expert review rather than just documents); see also Zubulake v. UBS 54. Id. Warburg LLC 220 F.R.D. 212, 216 (S.D. N.Y. 2003) (defining spoliati n 55. Hopson v. The Ma or and City Council of Baltimore, 232 F.R.D. 228, 233-34 as the “destruction or signifi ant alteration of evidence, or the failure to (D. Md. 2005). preserve property for another’s use as evidence in pending or reasonably 56. Id. (citing Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d foreseeable litigation.”). 1414, 1426-27 (3d Cir. 1991) (discussing effectiveness of non-waiver agree- 36. Zubulake, supra note 35 at 212 (determining that though employee’s ment as to a third party involved in unrelated litigation)). discrimination claim was not filed until ugust 2001, the duty to preserve 57. Ashish S. Joshi, Clawback Agreements in Commercial Litigation, 87-DEC arose months earlier when e-mails indicated that employer was aware of Mich. B.J. 34 (Dec. 2008). possibility of claim). 58. See Fed. R. Civ. P. 26(b)(5)(B) (clawback provision of federal rules). 37. For example, the Court may impose ‘just’ sanctions, including the payment 59. Steven C. Bennett, E-Discovery Meets the Cloud, 83 N.Y. St. B.J. 45 (May of reasonable expenses, including attorney’s fees, caused by a party’s failure 2011). to comply with discovery orders. Fed. R. Civ. P. 37(b)(2); see also Ky. R. Civ. P. 37.02. Moreover, while sanctions involving a court’s inherent powers to regulate the conduct of litigation requires a finding of b d faith, sanctions under some civil rules do not and may include even negligent failures to comply with discovery obligations. See PIC Group, Inc. v. Landcoast Insulation, Inc., 2011 WL 2669144, at *10 (S.D. Miss. 2011) (citing Coane v. Ferrera Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990)). 38. In re Delta/Airtran Baggage Fee Antitrust Litigation, 2015 WL 4635729, at *8 (N.D. Ga. 2015) (ordering $2.7 million in fees where “discovery misconduct…rendered the court’s attempt to manage this litigation and move it forward toward a resolution on the merits as futile and maddening as Sisyphus’s efforts to roll his boulder to the top of the hill”). 39. Mary Mack et al., Effective Management of Litigation Holds and E-Discovery, 27 No. 4 ACC Docket 36 (May 2009) (“Knowing when a threat is ‘credible’ is ... a subjective matter; there is no one-size-fits-a l answer for every company and the answer will not always be the same for every threat.”). In its simplest form, a litigation or legal hold is a communication “issued as the result of current or reasonably anticipated litigation, audit, government investigation or other such matter that suspends normal disposition or processing of records.” Scheindlin, supra note 17, at 930. 40. See SCR 3.130(4.1) (truthfulness in statements to others); SCR 3.130(3.3) (candor toward the tribunal); SCR 3.130(3.4) (fairness to opposing party and counsel). 41. Scheindlin, supra note 17, at 65. 42. 239 F.R.D. 81 (D.N.J. 2006). 43. Id. at 99. 44. Id. at 102. 45. Id. at 104.

BENCH & BAR | 17 THEFeatures: FUTURE OF LAW PRACTICE

aw libraries are fi led with the rules that govern our society, BUILDING BETTER ROBOTS: thoughtful scholars, conscientious lawyers, some hard work- NEW TOOLS TO FIND LEGAL INFORMATION L ing students, and some procrastinating students. In the past, Legal research is now often conducted in online commercial legal this required libraries to collect hardbound volumes and loose research platforms such as Westlaw, Fastcase, or other subject- leafs. Today, the collection is beginning to give way to research specific databases where access to the necessary documents and platforms fi led with those same, or similar, materials and then related analysis is often only few clicks away. However, the value some; much of the primary legal documentation is even freely of online research platforms lies not only in having quick access available on the web. to all this information, but also in the new means we have available to find and manipulate it. While indexes, tables of contents, While the physical footprint of the library may be smaller as a and other key finding aids still exist on the more expensive online result of this transition, the amount of legal information that re- research platforms, the ability to search all this data is a powerful searchers have access to has grown exponentially. We now have addition to research toolkits. And in some cases a tool that was more sophisticated tools for manipulating this ocean of digital in- powerful in print has been completely transformed in its online formation, and the services offered by law librarians are evolving incarnation. Not only can online citators like KeyCite and Shep- along with those tools. This article will review current trends in ard ’s give a quick indication on whether a case is good law, as law libraries. Shepard’s did in print, but these tools can be used to see a list of

18 | JULY/AUGUST 2016 itors employed by Westlaw and Lexis Advance lay eyes on each case, but it doesn’t yet provide the same nuanced look at cases that KeyCite and Shepard’s do.

Thesecompanies are also figu ing out how to mine all the available documents for patterns to create new products that will appeal to practitioners. Ravel Law, a new case law research platform that relies extensively on various uses of data analytics, has developed a new tool to analyze judges’ opinions. It looks at all the opinions a judge has written and identifies the courts, judges, and cases they cite to most frequently and may find pa ticularly persuasive.2 This is excellent data for a lawyer to have at hand when preparing to appear before a particular judge.

In addition to using data analytics to find information more cost efficien y or to find new patterns, research platforms are also providing new ways to view this information.3 Data visualization is the concept of imparting more information in a graphical depic- tion of search results than the simple text-based list we have become accustomed to. One implementation of data visualization that might be familiar is the map view of a case’s history that is available on Westlaw or Lexis Advance. A researcher can view a graph where the Y axis represents the court level and each entry in the graph represents a court opinion. Thisgraphical display can make it easier to quickly see the path a case has taken through the court system.

Another example is the visual display that Ravel Law gives after performing a keyword search of cases. In addition to a search result list of case titles, Ravel also presents a graph of those same results with the X and Y axes representing the courts and dates of each opinion, but the graph also utilizes different sizes of shapes and lines to convey additional information. Cases are represented by circles; the larger the circle, the more that case has been cit- ed. The thickness of the lines between case circles represents the depth in which one case is discussing another.4 (Ravel’s case law database may be searched for free, and many instructional videos are provided. The judge analytics mentioned above, however, are every document on the platform that cites back to that case, and subscription-only.) Theidea is to give the researcher a way to hone can search and manipulate those results through filters in pow- in on the most important cases on a given legal issue at a glance erful ways. These tools are critical to help manage the volume of rather than clicking their way through a search results list. information now accessible. These trends in developing new tools for manipulating the large Thoughthe transition to online materials and the development of volumes of information will probably continue in the near future. search capabilities have been the major technological advances in In fact, as this article was being finished Lexis Advance announced legal research of the last 20 years, today new technologies and a new data visualization tool that involves using a color-coded bar fields of study are being applied. New and old players in the legal to indicate search terms and frequency in its results list.5 More of research field are developing innovative tools using data analytics these types of features can be expected to roll out on legal research to find specific pieces of information in the ocean in a more cost- platforms as they strive to stay competitive with newcomers in efficien manner. For example, the budget legal research platform the field Fastcase uses an algorithm called Bad Law Bot to determine if one case treats another negatively by looking for pre-specifie THE BATTLE FOR OPEN ACCESS terms such as “abrogated” or “overruled.”1 Utilizing an algorithm The e is a battle for legal information that is gaining in strength, to make these determinations is cheaper than having human ed- numbers, and noise. On one side, you have traditional powers that

BENCH & BAR | 19 THEFeatures: FUTURE OF LAW PRACTICE

have been the gatekeepers to cases, statutes, and commentary for Will the traditional gatekeepers of legal information crumble in over a century. A growing band of newcomers have coalesced to the next 15 years? No. Will the threat of viable new entrants shape generate new ways to make U.S. legal information freely available industry competition?17 Yes. online. Over the next 15 years this battle will be fought, and we predict that the newcomers will emerge with popular and viable Westlaw, Lexis Advance, and Bloomberg Law have incumbency platforms for distributing legal information. advantages in the marketplace, but it is hard to beat the cost of Open Access.18 TheOpen Access movement in legal information The newcomers ride under the banner of Open Access, which is will be a disruptive technology that forces rivalry.19 We see the the publication of works that are “digital, online, free of charge, traditional gatekeepers going in two directions: (1) to cater to us- and free of most copyright and licensing restrictions.”6 This defi- ers with money, they will enhance their search algorithms, practice nition squarely fits the potential for the vast majority of legal in- tools, and secondary source materials and (2) they should create formation. Federal statutes, regulations, and cases are not entitled new products that compete at the free or low-cost level. to copyright protection.7 The Commonwealth of Kentucky has determined that the Constitution, Kentucky Revised States, Ken- Notably, the Open Access movement has already taken hold in tucky Acts, and the Kentucky Administrative Regulations shall be legal academia. With respect to law reviews, scholars are not sell- made publically available via a “nonproprietary, nonprofit cooper- ing their product. Thelaw reviews are composed of an unpaid staff ative public computer network” and that cases are not protected by that work for a notation on their resume and course credit hours.20 copyright.8 It is true that commercial legal databases add editorial In return for generating content, law professors receive a conve- content and an organizational scheme that is proprietary and de- nient forum to distribute their ideas and help in their tenure pro- serving of protection. However, advances in artificial intelligence, cess.21 Thismodel shows the perfect ingredients for Open Access: crowd-sourcing, and data management will allow the Open Ac- a well-supported author that is given the room to become an ex- cess platforms to not only produce legal information, but to com- pert on, and write about, a particular subject; a group of publishers pete with the traditional platforms in the realm of usability, orga- that do not have labor costs; and technological tools that allow nization, and citator tools. for the distribution of work free of charge to readers. The best e - ample of this phenomenon can be seen in the 66 law schools that The Open Access proponents have similar genesis stories: big have implemented a Digital Commons platform.22 thinkers at large, well-funded, civic-minded institutions. One of the forerunners of the movement is the Legal Information In- In the coming years, the battle of Open Access will rage, but in stitute (LII) at Cornell Law School, which has been focused on the end, the Internet is of the people, by the people, and for the provided Open Access to the law since 1992. Their stated goal is people.23 to “ensure that the law remains free and open to everyone, which includes supporting global expansion of the free access to law THE EVOLUTION OF LAW LIBRARY SERVICES movement, serving government, empowering citizens, serving the In addition to changing the way that law libraries collect and legal profession, and developing web science for the law.”9 house legal materials, the information revolution also led law libraries to provide new and different services and to redefine—at Another newcomer deserving of mention is Casetext, which is a least partially—the roles of law librarians. The shift in emphasis free legal research and publishing platform launched in 2013 from publishing legal materials in print form to electronic format using $8.8 million in venture capital funds.10 This product uses allowed law libraries to collect more information and to house it crowd-sourcing concepts to incentivize users to add editorial con- in less space. Furthermore, the shift allowed law library patrons to tent to primary sources of law and build a citator.11 Casetext’s access a truly massive amount of legal information within a rela- founder Jake Heller, said, “We’re developing technology similar to tively short time period. While these changes enable researchers that of Quora or Reddit, where incentives to contribute are paired to overcome easily many of the challenges of print-based legal with intelligent data science to determine which contributions to research, electronic research itself presents many of its own chal- highlight.”12 lenges. Law libraries have thus refined their service offerings to take advantage of the utility offered by computers but also to help In 2015, the Harvard Law School Library entered the fray with researchers minimize the new challenges presented by electronic Free the Law, which is focused on making all U.S. case law free- research. ly accessible on the Internet.13 To complete this project, Harvard teamed up with Ravel Law, which is funding the digitization pro- Traditionally, finding relevant precedents and ensuring the con- cess and will make the resulting database publicly available for free tinued validity of the precedents found represented the most chal- searching.14 In arguing for Open Access principles to be applied lenging aspects of legal research. In fact, the difficu y in finding to legal information, Free The Law appeals to our better nature, applicable caselaw and the even greater difficu y in exploring in stating, “Our common law—the written decisions issued by our cases’ subsequent treatment during the Early Republic period led state and federal courts—is not freely accessible online. This lack directly to the creation of the first citator, an early precursor to of access harms justice and equality and stifles innovation in legal Shepard’s Citations.24 Even after the advent of the more compre- services.”15 hensive Shepard’s Citations and the national reporter and digest system of John B. West, which made comprehensive topical case The n wcomers fi mly believe that right makes might.16 research possible later in the Nineteenth Century, legal research

20 | JULY/AUGUST 2016 remained a time-intensive process, under which the main chal- librarians may also now refer researchers to electronic tools as well, lenge remained finding relevant cases. Law libraries and law li- if one is best suited for the job. brarians played key roles in the process. The former housed the massive collections necessary to make comprehensive research In addition to the traditional services offered, the information possible, and the latter served as guides by recommending treatis- revolution has enabled law libraries to offer additional services, es or showing patrons how to use digests. while also mandating that law librarians assume an important new role. Computers and digital publishing allow the easy cre- Note that neither of the traditional functions disappeared com- ation and sharing of information sources. Law libraries have taken pletely with the information revolution, though they did shift a advantage of the technological developments to better serve their bit. Law libraries still maintain subscriptions to many print legal users. In addition to subscribing to electronic tools such as those titles, though print collections have gotten smaller. Furthermore, described above, law libraries can now use digital technology to libraries now also subscribe to a large number of electronic sourc- share paper-based resources with researchers from afar, either es; either as more efficien versions of old titles or as new tools upon request or by creating their own digital collections. However, altogether. Citators are often an example of the former, while computers’ removal of many of the entry barriers to publication ProQuest’s Legislative Insight serves as an example of the latter. along with their ability to deliver massive amounts of information Shepard’s Citations can be used much more efficien y electronical- with just a few key strokes combine to present legal researchers ly than it can in print. As such, many law libraries have dropped with a new challenge. While finding an obscure case (and every print subscriptions to Shepard’s but maintain a public-access sub- case that has ever citied it) is much easier in the computer age, scription to the electronic version of Shepard’s or an alternate ci- researchers now face the opposite problem: too many research tator such as West’s KeyCite. Legislative Insight is a new tool that results. Rather than spend extra time tracking down cases, then, compiles federal legislative histories and that provides the full text researchers must now spend extra time eliminating less-relevant of all documents related to a Public Law’s passage. Similarly to cases to try to focus on the most relevant authorities. Furthermore, how law libraries still collect print while adding digital content, since anyone with a computer and an internet connection can now law librarians still recommend sources to researchers. However, publish information to the Web, researchers must now also be vig- the types of sources have expanded. While many recommenda- ilant in assessing the trustworthiness of information found on the tions will still direct researchers to print treatises on point, law internet. Luckily, law librarians have adapted their roles to assist legal researchers with these tasks.

In addition to their traditional roles as guides, law librarians now also serve as gatekeepers. Individually, law librarians can help legal researchers to narrow their results to sources likely to be useful for solving a given problem. Law librarians can recommend databases, show researchers how to use the databases’ interfaces, and suggest search queries or filters to use. Law librarians also often assist researchers with seeing the connections between electronic search results and advise on how to use those connections to stay on a relevant path. Beyond helping individual researchers, however, law librarians as a professional collective help to establish standards for providing legal information electronically so that researchers can differentiate between authentic sources and those that are less reliable. For instance, the American Association of Law Libraries is currently assisting the Uniform Law Commission in campaigning to have each state pass a version of the Uniform Electronic Legal Material Act.25

Thus as the tools of legal research have changed, the roles of law libraries and law librarians have adapted, though the end goal of connecting researchers with useful

BENCH & BAR | 21 THEFeatures: FUTURE OF LAW PRACTICE

legal information remains the same. Most law libraries, includ- review and journal articles). And, of course, researchers can use ing the University of Kentucky Law Library, now offer a blend of the digital collections created by the University of Kentucky Law traditional print-based services and new computer-based services. Library itself, as discussed earlier in this article.

SERVICES OFFERED AT THE UNIVERSITY OF Reference assistance is also available for researchers wishing to use KENTUCKY LAW LIBRARY the University of Kentucky Law Library or its collections. Refer- The University of Kentucky Law Library welcomes members of ence assistance can be conducted in person, over the phone, or via the bar to use its collections, both print and electronic. Thelibrary email. Thereference desk in the library is staffed M-F, 9 a.m. – 5 maintains a large number of treatises, form books, and other sec- p.m. Thereference desk may be reached at (859) 257-8131, or the ondary sources in print, and also keeps both Kentucky and federal law librarians may be reached via email at [email protected]. primary sources in print. While treatises that are volume sets do not circulate, the library will loan individual titles to members of ABOUT THE AUTHORS the bar who set up a free special borrowing account. Furthermore, TINA M. BROOKS joined the UK Law Li- the library will loan these titles via Inter Library Loan to partici- brary faculty in July 2011 as the electronic pating libraries (including public libraries) for individuals outside services librarian. Prior to this position, Pro- of Lexington. If a researcher only needs a small portion of a title fessor Brooks studied history and Spanish at and has a citation to the relevant portion, it may be possible to the University of Northern Iowa, one semes- scan the portion and send it by email. ter of which was spent abroad at the Univer- sity of Ovideo in Spain. Thesummer follow- In terms of electronic sources, the University of Kentucky Law ing her first year at the University of Nebraska College of Law she Library subscribes to a version of LexisNexis accessible to the studied international law abroad at the University of Cambridge public (on-site in the library only) that provides searchable cases in the United Kingdom. She then obtained her masters in infor- and statutes from across the country as well as electronic Shepard’s. mation science at the University of Texas’s School of Information On-site researchers in the library will also be able to use various while working in the circulation department at the Tarlton Law other electronic databases to which the library subscribes, includ- Library. She began her current position at UK directly after fi - ing ProQuest Legislative Insight (discussed above) and HeinOn- ishing her master’s program in 2011. line (which provides a comprehensive, searchable collection of law

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22 | JULY/AUGUST 2016 FRANKLIN L. RUNGE joined the UK Law 2. Judge Analytics, Ravel Law (last visited Apr. 27, 2016), https://www.ravel- Library faculty as the faculty services librar- law.com/product/judges. 3. For many more examples of data visualization on legal research platforms, ian in May 2011. Franklin received a B.A. see Robert Ambrogi, Visual law services are worth a thousand words--and big in political science from Hiram College in money, ABA Journal (May 1, 2014), http://www.abajournal.com/magazine/ 2000, a J.D. from Northeastern University article/visual_law_services_are_worth_a_thousand_words--and_big_mon- School of Law in 2003, and a M.L.S. from ey. 4. Ravel Demo: Data Visualization, Ravel Law (last visited Apr. 27, 2016), the School of Library and Information Sci- https://www.ravellaw.com/learn?modal=videos.data-viz. ence at Indiana University in 2010. Following law school, he 5. Robert Ambrogi, LexisNexis Unveils Visualization Map Feature for Case Law clerked for the judges of the Massachusetts Probate and Family Research, Law Sites (Apr. 27, 2016), http://www.lawsitesblog.com/2016/04/ Court. After his clerkship, he stayed in Boston and practiced law lexisnexis-unveils-visualization-feature-case-law-research.html. 6. Peter Suber, Open Access 4 (2012), available at https://mitpress.mit.edu/ at Weisman & McIntyre, PC. books/open-access. 7. 17 U.S.C. § 105 (2012). BEAU STEENKEN joined the law library fac- 8. Ky. Rev. Stat. Ann. § 7.500 (West 2010); Ky. Rev. Stat. Ann. § 21A.070 ulty at the University of Kentucky in Sep- (West 2015). 9. Legal Information Institute, About the LII, https://www.law.cornell.edu/ tember 2010 and serves as the instructional lii/about/about_lii (last visited April 27, 2016). services librarian. He teaches two to four 10. Maya Kosoff, These a e the 25 Hottest Startups in San Francisco, Business sections of 1L Legal Research a year and Insider (Mar. 9, 2015, 8:10 AM), http://www.businessinsider.com/25-hot- also coordinates informal research instruc- test-san-francisco-startups-2015-2. 11. Casetext, https://casetext.com (last visited April 27, 2016). tion of various sorts. Before coming to the 12. Kosoff, supra note 10. University of Kentucky, he managed to collect a B.A., a J.D., and 13. Library Innovation Lab, Project: Free The aw, http://librarylab.law.har- an M.S.I.S. from the University of Texas, as well as an M.A. in vard.edu/projects/free-the-law (last visited April 27, 2016). history from Texas State University and an LL.M. in public in- 14. Id. 15. Id. ternational law from the University of Nottingham, where he also 16. See Abraham Lincoln, The Cooper Uni n Address (Feb. 27, 1860). took up archery. 17. See Michael E. Porter, The ive Competitive Forces that Shape Strategy, Har- vard Business Review, Jan. 2008, at 78, 80-82. ENDNOTES 18. See id. 1. Deborah Letz, Meet Our Newest Team Member: Bad Law Bot, Fastcase (May 19. See id. at 79-82. 29, 2013), http://www.fastcase.com/badlawbot/. 20. Jessica Litman, The Economics o Open Access Law Publishing, 10 Lewis & Clark L. Rev. 779, 788 (2006). 21. Richard A. Danner, Kelly Leong, & Wayne V. Miller, The urham Statement Two Years Later: Open Do you have clients eligible to receive Access in the Law School Journal Environment, 103 Law Libr. J. 39, 42 (2011). benefits under anERISA plan? 22. See bepress, Law School Institutional Reposi- tories, http://digitalcommons.bepress.com/institutional-repository-law/ (last visited Apr. 27, 2016). The Open ccess platform at the University of We can help. Kentucky is at http://uknowledge.uky.edu. Put our ERISA experience to work for your clients! 23. Cf. Abraham Lincoln, The Get ysburg Address (Nov. 19, 1863). 24. See Patti Ogden, “Mastering the Lawless Science of Our Law”: A Story of Legal Citation Indexes, 85 ERISA Law Libr. J. 1, 2-7 (1993). • Long-term Disability 25. See Electronic Legal Material Act, Uniform Law Commission, http://www.uniformlaws.org/Act. • Short-term Disability aspx?title=Electronic+Legal+Material+Act (last • Life/Accidental visited April 29, 2016). Death Insurance Early representation is key, so call us today.

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BENCH & BAR | 23 YOUNG LAWYERS DIVISION

his spring I had the pleasure of out a solo practice would lead to a public position. She started from speaking at the New Lawyers Pro- scratch and her first case involved a goat in a cemetery. Tgram, along with Kentucky Court of Appeals Judge Sara Combs. After In 1993 she became the first woman to serve on the Supreme Court Judge Combs finished she sat down next to me and leaned over. of Kentucky. From 1994 through the present she has served on “I always get so nervous speaking at these.” I responded, “Me the Kentucky Court of Appeals, including six years as the Chief too.” I was surprised to hear this from a highly esteemed appellate Judge—also the first woman to serve in that capacity. judge with 36 years of experience and a tenure on the Kentucky Supreme Court. “YOU ARE NOT STUCK.” Judge Combs was 28 when she decided to go to law school. While Later, I had an opportunity to speak with Judge Combs at greater contemplating that decision, she lamented the fact that if she did length. She further explained that she was concerned whether what start, she would not graduate until she was 31. However, her father she had to say was still relevant to young lawyers. It was. Thefirst very aptly pointed out to her that in three years she would be 31, time I heard Judge Combs speak at the New Lawyers Program whether she went to law school or not. was the year I was admitted to practice. Eight incredibly long and incredibly short years go. And what Judge Combs said had the Regardless of where we happen to be on the road of life, or law, same effect on me eight years later—reminding me how exciting we have choices. Even if we may think we are too old, too young, and gratifying it is to be a Kentucky lawyer. too inexperienced, too entrenched. Judge Combs reminded the new lawyers that if they do not like what they are doing—they are “YOUR LAW DEGREE IS YOUR PASSPORT.” not stuck. Thoughthe changes made in pursuit of happiness and Judge Combs discussed her very interesting and unique path as a fulfi lment are usually not easy, they will never be regretted. Judge lawyer. After graduating from law school, she practiced with Wyatt, Combs took a leap of faith when she opened her own practice in Tarrant & Combs, and then moved on to her role as general counsel Stanton. And she has no regrets about doing so. It was a personal for Naegele Outdoor Advertising Company. After her husband of choice—not the most secure, not the most logical, and not one three years, Governor Bert T. Combs, died in a flash flood in 1991, based on what everyone thought she should do. Judge Combs Judge Combs opened a solo practice in Stanton, Ky. She told me reminded us that the profession of law should serve you and your that she never dreamed that her decision to stay in Stanton and eke loved ones—not the other way around. She told us that you have

24 | JULY/AUGUST 2016 to have faith that if you make the right decisions for the right reasons, it will all work out. “The e is a lot of pressure in the profession to put the law ahead of everything else—pres- THE 2016-2017 sure to believe that is the way to do things. You can leave. You can make personal decisions that are right for you.” KENTUCKY BAR ASSOCIATION “YOU’VE GOT TO RISK AND RISK GREATLY IF YOU EVER WANT TO AMOUNT TO ANYTHING.” YLD EXECUTIVE Judge Combs has loved what she has done and has never been bored. However, it hasn’t COMMITTEE: always been easy. During law school she attended night classes at University of Louisville and taught French and Spanish in Henryville, Ind., during the day. For 3 ½ years she OFFICERS: drove 100 miles a day. Because of the law, she met the love her life, Governor Combs. She J. Tanner Watkins talked about how life is like an intricate Aztec mosaic. While we are in the midst of it, or Immediate Past Chair standing up close, we may not see the full picture. However, as time gives us distance and Rebecca Schafer perspective, we are able to see how it all fits together so beautifully. Chair Eric Weihe Former Governor Brereton Jones called Judge Combs in May 1993, and told her there Chair-Elect would be a vacancy on the Kentucky Supreme Court. Judge Combs started giving him Jenna Overmann names of women in Eastern Kentucky she respected and thought would be good candidates. Vice-Chair His response, “Well, what’s wrong with you.” Judge Combs had not expected this. She did Zachary Horn not know anything about politics and wasn’t confident in her ability to win an election after Secretary Treasurer her term expired. No one knew her; she was just “that woman from Louisville.” Thenshe remembered what her late husband always said, “You’ve got to risk and risk greatly if you DISTRICT ever want to amount to anything.” REPRESENTATIVES:

st After her appointment she ran for election, and lost. She was disappointed, and was sur- 1 District Rep Jenny Marie Hines prised when Governor Jones called her to congratulate her. “But I lost,” she told him. He 2nd District Rep John Wathen responded, “Not nearly as much as we all thought you would.” When an opening came up 3rd District Rep Brandon Adcock for the Kentucky Court of Appeals, Judge Combs initially said no thanks, she was done th with politics. But then she once again decided to take a risk, ran, and won by 73 precent. 4 District Rep Kate Ward 5th District Rep Stephanie Wurdock I encourage you to risk greatly, make the tough right choices, and use your passport. Young 6th District Rep Megan Mersch lawyers, if you are interested in connecting with other attorneys and finding more ways to use your passport, please visit our website (kbayld.org), like us on Facebook, and follow us 7th District Rep Miranda Click on Twitter. TheYLD has nine different committees that sponsor over 20 programs, serving Kentucky’s lawyers, law students, and community. I leave you with a final quote from Judge AT LARGE MEMBERS: Combs. “Everybody leaves footprints. Thequestion is what kind do you leave. As attorneys Roula Allouch Brandon Johnson we have the opportunity to leave giant footprints for the good.” Jonathan Hall Sarah McKenna Megan Keane Teresa McMahan Lauren Marley Lee Metzger David Noble Jack Phillips 2016-2017 YOUNG LAWYER DIVISION Elizabeth Reeder Joey Wright OFFICERS: Chair Rebecca Schafer, Chair- Jessica Beauchamp Elect Eric Weihe, Secretary Treasurer Zachary Horn and Vice-Chair Jenna Overmann. Fayette County Bar Association Representative Timothy Wiseman Louisville Bar Association Representative Coy Travis National Bar Association Representative Adrienne Henderson

Northern Kentucky Bar Association Representative Derrick Reeder Warren County Bar Association Representative Ashley Gerughty A group of former Young Lawyer Division chairs gathered during the YLD Luncheon at the 2016 KBA Annual Convention held in Louisville this past May.

BENCH & BAR | 25 COLUMNS UK LAW STUDENTS MAKE A PROFOUND IMPACT TEACH PRACTICAL LAW LESSONS AT LOCAL HIGH SCHOOLS

uring the spring semester, UK Law students lived and and the high school students both learned a lot from each other breathed StreetLaw – a brand-new student organization over the course of the semester.” Dat the University of Kentucky College of Law dedicated to teaching high school students and members of the Lexington In December, the organization held elections to establish an exec- community about law and the legal system. utive board. Theelected board members then drafted and approved a constitution and provided training to certify Working under the supervision of faculty 30 student teachers. With strengths, diver- advisor Cortney Lollar, assistant professor of sity and law class variation in mind, student law at UK College of Law, and local attor- teachers were paired off to complement each neys Carmen Ross and Lindsay Perdue, UK other in the classroom. After modernizing Law students utilized their legal education to problems contained in each lesson, student teach real-life lessons in law and government teachers gave trial presentations to coordi- to high school students, empowering them nators and volunteer attorneys who provided to go forward and make positive changes in valuable feedback and direction. the community, while also inspiring them to consider a future legal career. Lessons taught “I’ve watched multiple presentations and I include criminal and civil law, employment always enjoy seeing the different teaching law, housing law and family law. approach each student takes,” said Th mas Wall, former Outreach Coordinator for Theidea for StreetLaw at UK came from the StreetLaw, who served as a liaison between national non-profit organization that began the high schools and the organization. in 1972, when a small group of Georgetown Bryan Station High School student Quinten Floyd University Law Center students developed an receiving a certifi ate of recognition from Daniel P. UK Law students successfully taught 20 experimental curriculum to teach District of Murphy, Jr., UK Law’s Assistant Dean of Admin- lessons last semester, 10 at each of the two Columbia high school students about basic istration and Community Engagement. participating high schools, with 10 to 12 legal principals. It was the vision of Prof. students at each lesson. At the end of the Lollar to establish one at UK Law and use 10-week period, each participating high the program to make a difference in the Lex- school student was presented with a certif- ington community. icate at an awards celebration in recognition of their accomplishment. Following Prof. Lollar’s initial announcement of StreetLaw at UK, 60 law students quickly “Both schools were immensely appreciative of jumped at the idea to join. Thismeant that our cause and the College of Law showed a UK Law could place students in more than tremendous outpouring of support,” said Wall. one high school. Bryan Station High School “Our goal was to make a small difference, but and Martin Luther King, Jr. Academy of the impact this unforgettable experience had Excellence agreed to be host schools. on us as law students was profound.” StreetLaw Former President Ismaila Ceesay being interviewed by WKYT. “I was overwhelmed by the law students’ level “It was very humbling to see the volunteer of interest and commitment to starting a StreetLaw program. A time committed by the law students, and especially Prof. Lollar, number of students invested signifi ant time, energy, and hard work and the attorneys Ms. Ross and Ms. Perdue,” said Ismaila Ceesay, to get this program off the ground in a very short period of time,” former president of StreetLaw. “Thebest part of this program was Prof. Lollar observed. “Of course, we also could not have had such engaging with these talented and intelligent high school students. a successful program without the incredible assistance of our part- Amazing. I feel confident that our country’s future is bright when nership schools – Martin Luther King Academy and Bryan Station I envision these young people in future leadership roles.” High School. Theadministrations at both schools recognized the value of the StreetLaw program for their students, and were willing Looking ahead, the organization is planning to continue the ini- to provide both their students and our students the opportunity to tiative, with the hope of someday adding a third high school into further their education in a very hands-on way. The law students the program.

26 | JULY/AUGUST 2016 COLUMNS

or many visitors to Washington, D.C., a good trip includes a tour of the Capitol, a day at the Air and Space Museum, and Fa panoramic view from the Washington Monument. For 16 Salmon P. Chase College of Law students, a great trip included a meeting with Senate Majority Leader Mitch McCo- nnell to hear his analysis of election year politics, talking with the named plaintiff in litigation that preceded a landmark decision by the Supreme Court of the United States, and hearing government lawyers explain what life can be like after law school. the people who try to influence them was eye-opening.” The students went to Washington this spring in Chase’s Wash- –Ashton France, 1L ington, D.C., “Study Away” program, designed to help them see • What lobbyists do: “I previously spent some time working how legislation, regulation, and litigation become the black-letter for a member of Congress on the Hill. It was interesting law they read in casebooks. What some of them discovered is that watching my law school colleagues talk to lobbyists. At first the case law they come to know on a last-name-only basis is also there was a real hesitation, but that hesitation quickly grew a chronicle of how society frames itself through people such as to admiration, as lobbyists are influential with respect to those they met, people such as McConnell and Kris Perry. helping elected official and their staffs understand intricate issues.” –Michael McQueary, 1L Perry went to court in 2009 to challenge a California ballot ini- • The Washington, D.C., culture: “The e are so many differ- tiative that would have prohibited same-sex marriage. The case, ent opinions and outlooks on positions and policies. Even if which began as Perry v. Schwarzenegger and was styled as Holling- there are differing opinions, that does not mean working to- sworth v. Perry when it reached the Supreme Court of the United gether is impossible. D.C. is also about whom you know and States, opened the way for same-sex marriage in California two what the person knows about you.” –Kate Buffing n, 1L years before the Court in 2015 decided in Obergefell v. Hodges that In addition to talking with legislators and a plaintiff in a case some same-sex couples have a constitutional right to marry. students had read, the trip allowed participants to envision themselves in government. Discussions with lawyers at the Department TheChase students talked with Perry, who moved from California of Housing and Urban Development, Equal Employment Oppor- and is executive director of a Washington, D.C.,‑based advocacy tunity Commission, Judge Advocate General, and other agencies group for early childhood education, within sight of the Supreme helped them understand what careers might look like for them. Court Building. Thejustices’ decision there on standing in the case she initiated opened the way for courts to set aside California vot- “Meeting with JAG lawyers at the Pentagon and with the EEOC ers’ Proposition 8. lawyers at the agency’s headquarters helped me realize there are many career paths available to lawyers,” 1L Astarre Gudino says. “Being able to meet with a named plaintiff in the Proposition 8 case was a great experience,” Chase 1L Stephanie Brockman says. With the 10-day program of meetings and tours concluded, the “Her non-lawyer perspective of the legal system and how it works students still have work to do. Th y must write a 20-page analy- gave us insights that we don’t always think about as we make our sis based on their experiences. For 3L Lisa Schreihart, sitting in way through law school.” the House gallery and hearing four Congresswomen speak on the Equal Pay Act in a nearly empty chamber decided her topic. For Chase 1L Heather Herald, the timing of the trip to meet with Kentucky U.S. Senators McConnell and Rand Paul, and “The women announced that they would speak on those issues Kentucky and Ohio U.S. Representatives Th mas Massie, John every month, because it’s still necessary to do so. I wholeheartedly Yarmuth, and Steve Chabot added a contemporary perspective. agree. I’m going to do my independent study paper on the Equal Pay Act.” “I think it was great that we happened to be in D.C. during an election year. Hearing what Senator McCon- nell and Representatives Massie, Chabot, Yarmuth, and (former Representative Geoff) Davis had to say about the Trump/Clinton election was really interesting,” she says.

Thereality of Washington politics played into some students’ broadened under- standings of: • How things work in Congress: “Being exposed to how lobbyists, members of Congress, and congressional staffers Salmon P. Chase College of Law students and Northern Kentucky University students gather during the work to pass legislation was fascinat- Chase Washington, D.C., Study Away program for a photo with U.S. Rep. Steve Chabot, R-Ohio, third ing. Hearing from the lawmakers and from left, who graduated from Chase in 1978.

BENCH & BAR | 27 COLUMNS

BY: DEAN SUSAN DUNCAN

ere at the Louis D. Brandeis School of Law, we’ve been laboration as required skills in the 1L Lawyering Skills course. thinking a lot about the American Bar Association’s (ABA) Known as the “Brandeis Skills,” these skills are the first portion of Hnew standards for measuring how well students are learn- a multi-part graduation requirement. Students must practice the ing. Brandeis Skills orally or in writing and will receive individualized feedback. Thesefour newly adopted standards require law schools to identify what students can expect to learn and do upon completing their STANDARD 302: LEARNING OUTCOMES law school education. A law school shall establish learning outcomes that shall, at a minimum, include competency in the following: Let’s explore each of the standards as outlined by the ABA. We’ll also provide insight on how Brandeis Law has made progress on a. Knowledge and understanding of substantive and pro- each standard. cedural law; b. Legal analysis and reasoning, legal research, problem- STANDARD 301: OBJECTIVES OF PROGRAM solving, and written and oral communication in the le- OF LEGAL EDUCATION gal context; c. Exercise of proper professional and ethical responsibili- a. A law school shall maintain a rigorous program of legal ties to clients and the legal system; and education that prepares its students, upon graduation, for d. Other professional skills needed for competent and eth- admission to the bar and for effective, ethical, and respon- ical participation as a member of the legal profession. sible participation as members of the legal profession. b. A law school shall establish and publish learning outcomes We asked Brandeis Law faculty members to complete a detailed designed to achieve these objectives. questionnaire for each course they teach. Thequestionnaire listed various skills in fairly specific detail. We created the list of poten- Identifying learning outcomes is the first step in a circular process tial skills from recent task force studies and reports that identified of instructional design method known as “backwards design.” multiple skills law schools should consider teaching their students. Thisfirst step requires identifying what law schools want students Thisinformation lead to the formation of the Brandeis Skills re- to learn and then working backwards to develop methods that quired in the 1L year outlined above. Skills proposals for the 2L assist in this learning. and 3L years will also draw from this information and will be submitted for approval next fall. All law schools must adopt specifi ally identified outcomes; however, the standards also allow each law school to develop and de- STANDARD 314: ASSESSMENT OF STUDENT sign additional outcomes that reflect their schools’ missions. The LEARNING ABA has identified several learning outcomes, so law schools should only identify one or two additional learning outcomes ini- A law school shall utilize both formative and summative assessment tially. methods in its curriculum to measure and improve student learning and provide meaningful feedback to students. In April 2016, Brandeis Law identified client counseling and col-

28 | JULY/AUGUST 2016 Formative assessments measure performance during a course, Many Brandeis professors have already been using formative as- while summative assessments measure performance at the end of sessments, and most classes here now have a mid-term exam in a course. addition to final exams and p ojects.

TheABA allows for either or both types of assessments to be used For example, Professor Jamie Abrams offers several opportunities by law schools, but formative assessments better assist student for feedback during her family law class, with group and individ- learning because of their ongoing nature. ual work being reviewed throughout the semester. She also offers her students practice bar exam questions. And Professor Timothy Law professors have traditionally used summative assessments in Hall has implemented “clickers,” through which students answer the form of final exams, but many students don’t perform well weekly multiple choice questions using interactive technology. using this “all or nothing” approach, which also doesn’t allow students to learn from their errors or apply instructors’ feedback. STANDARD 315: EVALUATION OF PROGRAM OF LEGAL EDUCATION, LEARNING OUTCOMES, AND ASSESSMENT METHODS

The dean and the faculty of a law school shall conduct ongoing evaluation of the law school’s program of legal education, learning outcomes, and assessment methods; and shall use the results of this evaluation to determine the degree of student attainment of competency in the learning outcomes and to make appropriate changes to improve the curriculum.

I The standard allows for the use of both indirect and direct forms of assessment.

Indirect assessments measure students’ opinions For more than 140 years, Wood Herron & Evans has been a regional and on their learning, while direct assessments mea- national leader in providing innovative solutions for clients seeking to sure performance. protect what is theirs. Our clients are leaders in science and industry worldwide. Our attorneys possess the requisite skills to protect all facets of the Indirect evidence often involves self-reports intellectual property assets of our clients, including patents, trademarks, through surveys or interviews seeking input from trade secrets, copyrights, advertising & privacy. graduates, supervisors and employers. Thistype of anecdotal information is valuable but should be combined with direct assessments of the degree of mastery of learning outcomes.

Direct assessments come from a systematic review of projects, papers or performances that show competency in the identified skills and knowledge.

Brandeis is constantly working to examine, analyze and improve its methods of teaching.

In preparation for the ABA’s upcoming site visit, we’re carefully monitoring the progress we’ve From Left: Kathryn E. Smith (Partner), David S. Stallard (Of Counsel), made in our strategic plan. Our faculty spends John P. Davis (Partner), Gregory J. Lunn (Partner), Kurt A. Summe (Partner) Legal services may be performed by others. signifi ant time reviewing the data collected from student, graduate and employer surveys to mea- • Patents • Privacy & Data Security • Advertising sure our progress. • Litigation • Publishing & Media • Trademarks • Licensing • Domain Names • Copyrights We also track data such as bar passage rates, student retention and individual learning outcomes. 2700 Carew Tower | 441 Vine Street | Cincinnati, Ohio 45202 Phone: 513-241-2324 | Fax: 513-241-6234 This information lets us know how we’re doing and offers areas where we can build on our THIS IS AN ADVERTISEMENT. KENTUCKY LAW DOES NOT CERTIFY strengths. SPECIALIZATION OF LEGAL SERVICES.

BENCH & BAR | 29 EFFECTIVE LEGAL WRITING

BRANDEIS STUDENTS MEET WITH JUSTICE KENNEDY, VISIT D.C.

BY A.J. BESIK, CHELSEA DERMODY, DEVON SKEENS, AND JUSTIN WALKER

or the three of us who began law school last fall, the greatest couldn’t understand, perhaps because they had not bothered to lesson we learned about legal writing wasn’t taught in a class- read any of the opinions in the case, why protecting the right to Froom or written in a book. It was conveyed to us at One First burn a flag is important to the freedom that the flag stands for. Street, home of the United States Supreme Court, by one of the Justice Kennedy joked that it seemed like President Bush took most important writers to ever publish in the U.S. Reports: Justice the week off, after the decision, to tour flag factories. And not Anthony Kennedy. Although it’s true that many of us had heard long after that, a man approached Justice Kennedy in a restaurant how important our writing was—and even seen our grades par- and said his father, a World War II vet, had told him he should tially reflect our writing skills—the lesson we learned from Justice be ashamed to be a lawyer. In response, the man decided to give Kennedy showed us that legal writing can be even more import- his father a copy of Justice Kennedy’s concurrence in the case. ant, and more powerful, than we had ever imagined. When the father handed the concurrence back to his son, he had a new view of the case. “Son,” he said, “you should be proud to be Thestory of that lesson begins not in Washington, D.C., but back a lawyer.” at Brandeis, at the start of the school year. Idealistic and bright- eyed, many of us were confident we would hit a home run. We What was it about the Justice’s words on that issue that convinced read the “law school prep” books, talked to all of the law students this aging patriot that setting the flag of the country aflame was we had ever known, and bought wholesale quantities of coffee and protected under the Constitution? The Court’s majority opinion highlighters. But, in a flash the semester was over. It blew by so was technically sound and explained the mechanics of the legal fast we didn’t even see it. Did four months really just pass by? Had reasoning. But Justice Kennedy’s concurrence explained in basic, we really survived that first “cold call”? Was all of it—the prepa- blunt terms the “hard fact” that “sometimes we must make deci- ration for our first finals the pressure of finishing those exams on sions we do not like.” Id. at 420 (Kennedy, J., concurring). That time, and the relief that came with the semester’s last “time’s up” simple sentence clearly articulated to anyone, regardless of edu- —actually over? And what had been the point? cation or training, the inherent tensions involved in respecting freedom of speech. It is among the phrases that resonated with a Then before we could even catch our breath, at the end of the member of a generation that clearly understood making decisions semester, 32 of us traveled to Washington D.C. with a packed that may not be easy—a generation for whom little was easy. That itinerary. To start our day, we sat down for an hour-long private short anecdote, and the conversation that followed, demonstrated meeting with Justice Anthony Kennedy, our professor’s former that good legal writing should do more than cleverly reiterate le- boss. Then Supreme Court Clerk Marisa Maleck, led us on a be- galistic mechanics. It should inform in ways that illuminate, per- hind-the-scenes tour of the Court. We later toured the Capitol suade, and inspire. and met with Utah Senator Mike Lee. Several of us ended the day by meeting with Senator Mitch McConnell’s Chief Counsel, Authors, historians, and politicians, claim that the pen is might- Daniel Cameron, a 2011 Brandeis School of Law graduate. Fi- ier than the sword. Justice Kennedy’s lesson illustrated to us that nally, a group of students went on to tour the West Wing of the our pen is our sword. What we write has the power to influenc . White House. It might one day change the law. Perhaps more importantly, it can change people’s minds. Without shaking anyone’s hand, with- It’s easy to lose sight of what’s really important in law school. Thee out knowing any student’s political affiliat n, or even our names, is a lot of talk of class rank, employment projections, and GPA. Justice Kennedy reminded us that being a lawyer isn’t about the It’s easy to forget why you wanted to be a lawyer in the first place. money you make, the power you have, or the section of the plane The e is no better reminder, though, of why we sign up for the you sit in. Being a lawyer, at its most fundamental core, is about three years of essay questions, minute legal details, and the intri- using language to create the world that you want to see—to make cacies of complex theorems, than touring buildings where history a positive difference for people. is made, meeting those making it, and standing in the presence of one of the ultimate arbiters of law in the nation. We were treated to a lot of amazing things in D.C., but what we will always remember is the pride we felt leaving our meeting In his welcoming, grandfather-like demeanor, Justice Kenne- with Justice Anthony Kennedy. We get to be lawyers someday. We dy told us a story. He explained that after Texas v. Johnson, 491 study and aspire to write in ways that can change minds. And we U.S. 397 (1989), when the Court protected the First Amendment wouldn’t have it any other way. right to burn a fla , there was a huge uproar from the public. Th y

30 | JULY/AUGUST 2016 ABOUT THE AUTHORS A.J. BESIK, CHELSEA DERMODY, and DEVON SKEENS will soon begin their second year of law school at the University of Louisville’s Brandeis School of Law. JUSTIN WALKER clerked for Justice Anthony Kennedy and Judge Brett Kavanaugh, and he teaches legal writing at Brandeis. A.J. BESIK CHELSEA DEVON JUSTIN DERMODY SKEENS WALKER

BENCH & BAR | 31 SHOP TALK

Back to the Internet- Suggestions from Our Colleagues on Using Social Media Safely BY MICHAEL LOSAVIO

un with social media continues to evolve for lawyers, judges, Guidance is evolving, slowly, via the rules of conduct and ethics police and clients. I am still nonplused to read defendants’ opinions. The National Center for State Courts (NCSC), which F Facebook postings listed as overt acts in drug conspiracies. monitors this as to judges, noted at the end of 2015 New Mex- But it’s not just those crazy kids we need to worry about as to ico and West Virginia became the first jurisdictions to explicitly these new ways of information sharing, and investigation. Our in- discuss social media use in their judicial conduct codes. Advising experience, lack of knowledge, and unmediated habits with these heightened care in using social media, these reflected the risk of media can inadvertently run afoul of both common courtesies and not fully understanding the scope and reach of technologies de- our rules of information management – the rules of profession- signed to expand the scope and reach of social activity. Indeed, the al and judicial conduct. Then there are the constantly mutating thought of “abuse of prestige of offi ” would not have occurred features of the technology, which can make what is one day safe to me when “liking” a restaurant, but the NCSC opined it carried conduct into the next day’s mistrial. real risk.

32 | JULY/AUGUST 2016 This carries over to concerns about juror conduct in the age of Use of social media evidence is more and more important to liti- always-on texting and posting. Pending legislation in California gation, with its own risks. Theguidelines opine that viewing pub- would permit fines of up to $1,500.00 of jurors for improper use licly available social media is acceptable, but delving into restricted of social media and the Internet relating to their trial. Though areas requires full candor and disclosure by the attorney, or her harsh, it reflects the wasted resources where social media/Internet agent, as to the purpose of the request to examine. And if of an misconduct led to a mistrial or reversal. opposing party permission of opposing counsel is required.

TheNew York State Bar Association’s section on commercial and Communicating with clients has its own risks. The obvious are federal litigation tackled this by tasking its social media commit- those associated with confidentiali y of communications. If to be tee to draft social media guidelines for lawyers. Thoughpurely ad- confidential take it off of social media unless you are POSITIVE visory, they offer an early warning system for potential problems. it is a secure channel. So reading the user agreement is essential; And the scope of such problems is broad, so the guidelines discuss you might be surprised at the right to monitor your communica- the impact on: tions in some social media services. But properly used, controlled 1. attorney competence; sites might be helpful in case management, such as those with multiple parties or stakeholders. Less obvious is advising clients 2. attorney advertising; about their own social media use and duty to preserve electronic 3. furnishing legal advice through social media; media in anticipation of litigation and how the lawyer may use social media evidence provided by the client. Given the risks, this 4. review and use of evidence from social media; is an area where clear, detailed explanation of these issues in a 5. communicating with clients; retainer letter might avoid later accusations of spoliation and obstruction of justice. 6. researching jurors and reporting juror misconduct; 7. using social media to communicate with a judicial offic . Lastly, care with jurors and judges is needed. It is acceptable to Who knew? do social media research on potential or sitting jurors, as long as no deceit is involved, but not to communicate with them. As some social media sites notify when a site is reviewed by someone, And that’s why these guidelines are helpful: they help us look be- this might constitute such a communication. Or make the juror fore we inadvertently leap. wonder why one of the attorneys was checking out that juror’s information. And if juror misconduct is found, it must be reported The guidelines place a duty of competence in the use of social to the court regardless of benefit or detriment to the lawyer’s case. media within all of the subsequent areas of practice, from use in This is a serious matter which may subject jurors in violation of case investigation to communicating with clients. Which requires social media use prohibitions during trial to severe sanction. an understanding of how the technologies work, what they do and keeping current on changes. Some of those risks are discussed be- Judges are people, too, just like lawyers. So ex parte communica- low. But given the ubiquity of social media use by lawyers, clients, tions are prohibited. But things happen. As mentioned above, sev- witnesses, opposing parties, jurors and judges, we need to have eral states now have added specific language to their codes of judi- some knowledge of them or access to that expertise. Children and cial conduct to note that social media communications are subject grandchildren may help, but that may not be enough... to the rules as with any other communication. Though it would seem self-evident, problems still crop up given the lack of tradi- “Advertising,” depending on the jurisdiction, may mean anything tion. So be careful. And don’t complain about the judge online! with your name on it, subject to exceptions; the regulatory focus is on its interaction with the solicitation rules subject to the Again, this is just advice from other lawyers trying to help their First Amendment rights of lawyers and need for protection of brethren through the new tech world, the new information polity. the public. The guidelines suggest that purely personal activity But it is good advice, and another example of the excellence of our would not be subject to those rules, but advises compliance and profession that we try to help each other before there’s trouble. caution with a business related site or “hybrid” activity. Baroque by itself, this becomes more complicated with highly interactive sites The Guidelines are available at: where third parties may post comments. If the site is nominally www.nysba.org/socialmediaguidelines controlled by the lawyer, the lawyer may be responsible for what- ever is posted, especially “endorsements.” Some jurisdictions may hold the lawyer responsible for third party postings about them on third party sites. While this may or may not conflict with federal In Memento Mori - We observe the passing of another great ju- law, who wants to be the test case? rist, Judge Boyce Martin of the Jefferson Circuit Court and the U.S. Court of Appeals for the Sixth Circuit. On Oct. 27, 1974, Furnishing legal advice through social media, establishing possible the Courier-Journal wrote he possessed the “innate fairness, attorney-client relationships (intended or not), and retention of temperament, experience, and training necessary to become an communications represent another area of risk. Thecasual nature outstanding circuit judge.” And so he was. of social media makes it easy to slip up, so extra caution is advised.

BENCH & BAR | 33 BAR NEWS summary of minutes kba board of GOVERNORS MEETING MARCH 18, 2016

he Board of Governors met on Friday, March 18, 2016. Officer and Bar Governors in attendance were, President D. Farnsley; President-Elect M. Sullivan; Vice President W. Garmer; Immediate Past President W. Johnson, Young Lawyers Division Chair T. TWatkins and Incoming YLD Chair R. Schafer. Bar Governors 1st District – M. Pitman; Bar Governors 2nd District – T. Kerrick, J. Meyer; 3rd District – M. Dalton, H. Mann; 5th District – E. O’Brien; 6th District – G. Sergent; S. Smith and 7th District – M. McGuire. Bar Governors M. Barfield A. Cubbage, F. Schrock, B. Simpson and J. Vincent were absent.

In Executive Session, the Board considered three (3) default disciplinary cases and two (2) restoration cases. Judy Campbell of Frankfort, Brenda Hart of Louisville, Dottye Moore of Elizabethtown and Dr. Leon Mooneyhan of Shelbyville 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 fol- rector Amelia Adams made a presentation regarding lowing business: the activities of the Foundation and the IOLTA Fund. • Approved the following appointments to the Ken- Heard a status report from the Committee on Child st • tucky Bar Foundation: 1 Supreme Court District Protection & Domestic Violence, Military Law – Cirris E.C.B. Hatfield of Murray and W. Douglas Committee, Rules Committee, Task Force on Proper Myers of Hopkinsville; 2nd Supreme Court District – Compensation of Prosecutors and Public Defenders Scott D. Laufenberg of Bowling Green and Susan C. and Workers’ Compensation Section. Montalvo-Gesser of Owensboro and reappointed for • Past President and Strategic Planning Commit- three year terms ending on June 30, 2019: 3rd Supreme tee Chair W. Douglas Myers reviewed the planning Court District – Sarah Hay Knight of Somerset; 5th process and development of the 2016-2018 Strategic Supreme Court District – Allison J. Donovan of Lex- Plan. ington and Sadhna G. True of Lexington. • Past President W. Douglas Myers addressed the Board • Approved the submission of three nominees to the with regard to the 2016 Legislature and funding of Supreme Court of Kentucky for appointment of the KLEO program. one person from each District to the IOLTA Board • Director of Accounting/Membership Michele Po- of Trustees for a three year term ending on June 30, st Supreme Court District - Jack N. Lackey, Jr., grotsky and CLE Director Mary Beth Cutter pre- 2019: 1 of Hopkinsville, Richard E. Peyton of Madisonville sented a report on the status of the 2016 Annual and J. Christopher McNeill of Paducah; 2nd Supreme Convention registration information and the CLE Court District – Ryan C. Reed of Bowling Green, programming. John W. Stevenson of Owensboro and Stephen D. • President Douglass Farnsley reported that the Pres- Gray of Henderson and in the 6th Supreme Court ident’s Special Service Award would be presented to District – John G. “Spike” Wright of Warsaw, Su- Dean Susan Duncan at the UofL Brandeis School of zanne Cassidy of Crestview Hills and Paul J. Dick- th Law Alumni Reception on Wednesday, May 11 . man of Covington. • KYLAP Director Yvette Hourigan, along with • President-Elect R. Michael Sullivan advised that the KYLAP Commission Chair Pete Gullett, made a pre- summer meeting would be held in Owensboro on July sentation regarding the outcome of the recent study 21-23, 2016, at the Hampton Inn & Suites and the done by Hazelden/Betty Ford and the ABA Com- Owensboro Convention Center. mission on Lawyer Assistance Programs focusing on Young Lawyers Division (YLD) Chair J. Tanner Wat- lawyer addiction rates and mental health concerns. • kins reported on the following activities of the Divi- • LMICK Executive Vice President and CEO Pete sion: overseeing the March Bench & Bar issue, U@18, Gullett reported on the history of LMICK as well as Bully Proof and the Legal Feeding Frenzy. Watkins provided an update on their success and products. also reported that this year YLD will be celebrating its th • Kentucky Bar Foundation and IOLTA Executive Di- 50 Anniversary and will have a major involvement in

34 | JULY/AUGUST 2016 the Annual Convention sponsoring Featured Speaker that there are substantial improvements to the Bar Ari Shapiro, CLE programming, reception in con- Center being considered including several restroom junction with the Bench & Bar Reception and the renovations, carpet and paint on the first flo . annual luncheon where they will present their awards. • Approved the new proposed Attorneys’ Advertising • Approved the waiving the 2016 convention registra- Commission (AAC) Regulations with regard to the tion fees for the Supreme Court, Court of Appeals new attorney advertising rules submitted by the AAC and AOC staff atto neys. Task Force which were discussed during the 2015 • Approved the following appointment and reappoint- Rules Hearing and adopted by the Supreme Court. ments to the Attorneys’ Advertising Commission: • Approved the amendments to the LGBT Law Sec- appointed Steve D. Wilson of Owensboro for a three tion Bylaws. year term ending on June 30, 2019; reappointed • Director of Administration Melissa Blackwell re- Rhonda Hatfield-Je ers of Somerset and John Simms ported that the Supreme Court approved the FY of Lexington to another three year term ending on 2016-2017 Budget. June 30, 2019. Also reappointed Kerry D. Smith of Paducah as chair for one year expiring on June 30, • Blackwell gave an update on the IT project. 2017. • Approved the submission of three nominees to the Supreme Court of Kentucky for appointment for TO KBA MEMBERS one person from each District to the CLE Commis- Do you have a matter to discuss with the KBA’s Board of sion for three year terms ending on June 30, 2019: Governors? Board meetings are scheduled on nd 2 Supreme Court District - Frank “Hamp” Moore September 16-17, 2016 III of Bowling Green, Rebecca A. Simpson of Bowl- ing Green and Matthew C. “Matt” Tierney of Ow- November 18-19, 2016 ensboro; 3rd Supreme Court District – Graham C. To schedule a time on the Board’s agenda at one Trimble of Corbin, Heidi S. Powers of Somerset and of these meetings, please contact John Meyers or th Sandra J. Reeves of Corbin and 4 Supreme Court Melissa Blackwell at (502) 564-3795. District – J. Tanner Watkins of Louisville, Kellie E. Brown of Prospect and Danielle J. Lewis of Louisville. • Approved the following appointment and reappointment of the Clients’ Security Fund Board of Trustees: appointed Mary Ann Stewart of Covington to a three year term ending on June 30, 2019, and reappointed lay member Rog- er Rolfes of Florence to a second three year term ending on June 30, 2019. • President Farnsley reported that in an effort to strengthen the involvement of the KBA committees and sections with the Board, as well as increase accountability, representatives from the various committees and sections will make presentations at the Board meetings. • President Farnsley reported that a committee has been appointed to help make the board room library more meaningful. Contacts have been made with Filson Historical Society in Louisville about obtaining items on loan. He also reported

BENCH & BAR | 35 BOOK REVIEW

BOOK REVIEW BY JUDITH D. FISCHER: POINT TAKEN: HOW TO WRITE LIKE THE WORLD’S BEST JUDGES

fici nados of courts’ opinions will welcome a recent addition cites Judge Richard Posner, who wrote than when a codefendant to the sparse catalogue of books on judicial writing. Legal drops out during a criminal trial, “a juror would have to be pretty A writing expert Ross Guberman’s earlier book, Point Made: stupid not to surmise that he had pleaded guilty.” Other stylistic How to Write Like the Nation’s Top Advocates, provided engaging suggestions are to use short sentence openers—even the sometimes examples and tips about brief writing. In Point Taken, Guberman shunned yet perfectly correct “and” and “but”—and evocative verbs, has turned his scrutiny to judges’ writing. He scoured opinions like “the statute bristles with severities” or “divvying us up by race.” from the United States and English courts to illustrate his guide- Thebook’s list of “zinger verbs” is a helpful reference on this topic. lines with colorful examples by such prominent judges as Louis Brandeis, Frank Easterbrook, Ruth Bader Ginsburg, John Roberts, Guberman also suggests including some stylistic “nice-to-haves,” and Diane Wood. such as metaphors, literary references, and rhetorical devices. Although these can liven up a dry subject, he counsels that “less Thebook begins by covering the main sections of an opinion—the is more”—they should perhaps be limited to “a single burst of opening, the statement of facts, and the analysis. Thebook then creativity.” offers tips about writing style and ends by discussing dissents. Thelayout of the book is inviting. Theexamples and their sources To open an opinion, Guberman offers several techniques. One is to are clearly delineated through text boxes and boldface type. And start with a “teaser opening” like Lord Denning’s in Cummings v. each chapter ends with a succinct list of practice pointers that can Granger: “Thisis the case of the barmaid who was badly bitten by a serve as a quick reference. big dog.” Another is to start with a “detailed and unresolved” opening, as Judge D.P. Marshall did in the North Little Rock School Point Taken is every bit as engaging and helpful as Guberman’s ear- District case. He began, “Reasonable people of good will disagree lier book. I recommend it as a go-to reference for the bookshelves about the wisdom and efficacy of charter schools,” and then pre- of judges, their law clerks, and others who write case opinions. sented a more detailed explanation of the case. ABOUT THE AUTHOR JUDITH D. FISCHER Guberman covers the facts section in a chapter titled “TheTale.” is a professor emeritus at The e, he urges the writer to “cut clutter” and emphasize the facts the University of Louisville’s Brandeis School that are most important to the decision. To illustrate, he points of Law. Her scholarly interests include legal to Supreme Court death penalty cases in the 1970s and 1980s, writing and advocacy. Her book Pleasing the where justices who voted against death sentences did not mention Court examines ethical and effective legal the defendants’ crimes, while those who voted for death sentences writing through numerous examples of courts’ “sometimes sounded like they were writing smut ficti n.” reactions to lawyers’ errors.

The chapter called “The Meat” provides six suggestions for the body of an opinion. Among them are to answer the questions of a skeptical reader, to show why the decision should be trusted, and to provide organizational cues that will help the reader follow the reasoning. Transitions should be among those cues, and Guberman presents a helpful list of them for reference. Plentiful examples illustrate the chapter’s suggestions.

The chapter on “style must-haves” includes a blunt suggestion to use “‘impure’ diction.” To illustrate its effectiveness, Guberman

36 | JULY/AUGUST 2016 BAR NEWS KBA MEMBERS UPDATE YOUR MEMBER PROFILE NOW! BY MACHELL SMITH, KBA STAFF ATTORNEY ACCOUNTING/MEMBERSHIP

he Kentucky Bar Association (KBA) strives to add additional features and content to the website as we hear from our members. Now being rolled out are new features giving you the options to add language(s) and areas of practice to your online KBA member Tprofile! The in ormation you provide will be searchable in the Lawyer Locator. FOR MORE INFORMATION, PLEASE SEE BELOW.

AREA(S) OF PRACTICE

Do you want to communicate to the public that you LANGUAGE(S) practice particular fields of law? Now you can by indicating your areas of practice on your public member Are you fluent in any other languages besides English? profil . When you update your profile by selecting an Would you like to provide legal services to people who area of practice, you are indicating a willingness to ac- utilize that particular language and have limited or no cept cases in that particular field Many attorneys have English proficien y? If so, add your spoken language(s) more than one area of practice, so you may select all that and/or sign language credentials to your public member apply. Please note that the Kentucky Bar Association profil . We do not independently verify your language does not certify specialties in legal fields pursuant to skills; however, when you add a language to your profil , SCR 3.130(7.40). you are affirming that you personally possess the necessary language skills in the selected language to work and interact with speakers of that specific langua e group.

STAND OUT ON YOUR KBA MEMBER PROFILE! LAWYER LOCATOR NEW Thesenew features will allow you to create a more per- SEARCH FIELDS sonalized profile that is more than just your fi m name and contact information. In addition to the Lawyer In an effort to help address the public need to locate a Locator, information you provide on your profile may particular Kentucky licensed attorney, language(s) and be located by using search engines like Google, Yahoo!, area(s) of practice search fields have been added to the Bing, etc. Updating your profile is as simple as logging Lawyer Locator on the website. The Lawyer Locator is in to the website, selecting Edit Bio under Manage Pro- an online search tool that is frequently used to search fil , and then submitting your changes. Don’t miss out the membership database for Kentucky licensed attor- on this opportunity—update your profile tod y! neys as it has been accessed over 160,000 times since the launch of the new KBA website in April 2015.

IF YOU HAVE ANY QUESTIONS OR COMMENTS, PLEASE CONTACT THE KBA AT (502) 564-3795.

BENCH & BAR | 37 JUDICIAL CONDUCT COMM.

COMMONWEALTH OF KENTUCKY was filed against the Respondent on March 16, 2016 under Supreme Court Rule 4.180. JUDICIAL CONDUCT COMMISSION 9. An Answer to the Amended Notice of Formal Proceed- ings and Charges was filed by the Respondent through IN RE THE MATTER OF her Counsel on March 29, 2016. 10. On March 29, 2016 the Respondent filed a Motion to HON. SHEILA A. COLLINS, DISTRICT JUDGE TH Dismiss and a Motion to Produce as well as Interroga- 30 JUDICIAL DISTRICT tories and Requests for Admissions. ------11. On April 11, 2016 the Commission entered an Order overruling the Motion to Dismiss and denying the var- FINDINGS OF FACT, CONCLUSIONS OF LAW AND ious requests for discovery. FINAL ORDER 12. On April 13, 2016 the Respondent through her Coun- sel, filed a Motion to Reconsider, a Motion to Strike the I STATEMENT OF CHARGES Response of the Commission’s Counsel, and a Motion The Judicial Conduct Commission of the Commonwealth of to Compel Discovery. Kentucky was created for the purpose of, and is vested with the 13. On April 19, 2016 the Respondent appeared for the jurisdiction to, initiate, hear and decide charges of officia miscon- Formal Hearing with Counsel Honorable Stephen duct by any judge of the Court of Justice or lawyer while a candidate Ryan and Honorable Martin Johnstone at which time for judicial offi , and upon a finding of such officia misconduct, the Respondent testified in her own behalf and offered to impose sanctions pursuant to SCR 4.020. In furtherance of this other evidence. authority and purpose, the Commission filed charges of judicial 14. TheseMotions were overruled by the Commission and misconduct against Judge Sheila A. Collins, District Judge 30th the notation of same is found in the officia transcript of Judicial District, on January 11, 2016 and filed Amended Charges the proceedings as these Motions were overruled by the of Judicial Misconduct on March 16, 2016. (Notice of Formal Commission the morning of the Hearing. Proceedings and Charges dated January 11, 2016 and Amended 15. At the beginning of the Hearing on April 19, 2016 Notice of Formal Proceedings and Charges dated March 16, 2016 Counsel for the Commission requested that the rule be are attached hereto and incorporated herein by reference). invoked for the removal of witnesses from the Court- room and said Motion was sustained. II PROCEEDINGS 16. The (fi e) voting members of the Commission in this 1. TheRespondent, Sheila A. Collins is a District Judge for th case are as follows: Hon. Stephen D. Wolnitzek, Judge the 30 Judicial District consisting of Jefferson County, Janet Stumbo, Judge Eddy Coleman, Judge Karen Kentucky. Th mas, and Diane E. Logsdon. Citizen member Joyce 2. The Commission authorized an investigation into the King Jennings was ill and unable to participate. In at- allegations after receipt of a media report. tendance during the hearing were alternate members 3. TheRespondent was informed of the investigation and Judge Jeff S. Taylor and Hon. R. Kent Westberry. The appeared with Counsel, Hon. Stephen Ryan, before the alternate members did not participate in the Commis- Commission on October 23, 2015. TheRespondent was sion vote in this matter. Judge David P. Bowles recused provided the factual information in the custody of the from any consideration of this case. Commission for examination, pursuant to SCR 4.170(4) 17. At the conclusion of the presentation of evidence and and was afforded an opportunity to present any other summation by Counsel for the Respondent and Coun- information bearing on the investigation. The Respon- sel for the Commission it was announced that the Hear- dent did not provide additional information bearing on ing was concluded and appropriate Findings of Fact, the Commission’s investigation. Conclusions of Law and a Final Order would be en- 4. Notice of Formal Proceedings and Charges were filed tered in due course. against the Respondent on January 11, 2016 under Su- preme Court Rule 4.180. III FINDINGS OF FACT AND CONCLUSIONS OF 5. An Answer to the Notice of Formal Proceedings and LAW Charges was filed by the Respondent by her Counsel TheJudicial Conduct Commission unanimously concludes that on January 29, 2016. the following Findings of Fact and Conclusions of Law have been 6. An Entry of Appearance by Co-Counsel for the Re- established by clear and convincing evidence. spondent, Honorable Martin E. Johnstone was filed on February 1, 2016. CHARGE 7. A Notice of Time and Place for Hearing was sent to the On June 11, 2015 at approximately 1:09 p.m. the Respondent pre- Respondent on February 17, 2016, setting the Hearing sided over a Bond Reduction Hearing in Commonwealth v. Lomac for April 19, 2016 at 9:00 a.m. in the Jefferson County Jeter, Case No. 15-M-9629. In that case, Mr. Jeter was charged with Judicial Center, Tenth Floor, Appellate Courtroom 700 assault in the 4th degree (domestic violence) for allegedly assault- West Jefferson Street, Louisville, Kentucky 40202. ing Jasmine Stone. During the Bond Reduction Hearing, Ms. 8. An Amended Notice of Formal Proceedings and Charges Stone recanted the allegations against Mr. Jeter. Upon hearing her

38 | JULY/AUGUST 2016 recantation the Respondent immediately ordered a Deputy Sheriff ORDER to take Ms. Stone into custody. The Respondent further directed TheRespondent has been found guilty of misconduct by violat- the Prosecutor to charge Ms. Stone with making false statements ing Canons 2A and 3B(4) of the Code of Judicial Conduct. Th and set a $10,000 cash bond. Thisaction was taken over objection Respondent failed to afford a witness before her with rudimen- from the prosecution. tary due process rights before questioning her and then ordering a Deputy Sheriff to immediately take her in to custody and charge her At approximately 2:10 p.m. that same day the Prosecutor formally with a criminal offense. Thenafter being the complaining witness asked the Respondent to release Ms. Stone from custody based in the matter the Respondent set bond for the person she had just upon information that Mr. Jeter had contacted Ms. Stone and ordered arrested. Bond is to be set by a detached Magistrate, not one pressured her to recant. TheProsecutor further indicated that the who orchestrated the filing of the criminal charge in the first place. prosecution did not intend to proceed against Ms. Stone for making false statements. Despite this information, the Respondent refused While the Respondent admits that she made a mistake, she argues to lower the bond or release Ms. Stone from custody. A Writ of that it was not made in bad faith as the Respondent reasons that Habeas Corpus was filed on behalf of Ms. Stone shortly thereafter, she could have placed this lady in jail for contempt of Court. which was denied by the Circuit Court but the bond was vacated in that Order and Ms. Stone was released from custody later that It is the considered opinion of the Commission that the Respon- afternoon. dent has misread the Supreme Court Case of Gormley v. Judicial Conduct Commission, 332 S.W.3d 717 (Ky. 2010). As a result, the Respondent was charged with violating SCR 4.020(1)(b)(i), misconduct in offi . In addition the Respondent Nothing that this witness stated could in any way be considered was charged with violation of SCR 4.300 and the relevant portions direct criminal contempt of Court. By the Respondent’s own of the following Canons of the Code of Judicial Conduct: testimony and as seen from the video tape of this encounter, the Canon 1 which requires Judges to maintain high standards of con- Respondent acknowledged she did not know what was true and a duct and uphold the integrity and independence of the Judiciary. hearing needed to be conducted with the presence of a police offic who was on the scene in order for the truth to be determined. If By a vote of 5-0, the Commission finds that the Respondent Sheila the Respondent needed a hearing in order to determine the truth A. Collins did not violate Canon 1 and therefore the Charge as it then in no way could the witness who was questioned by the Court pertains to Canon 1 is dismissed. without being advised of her right against self-incrimination and without being afforded counsel be considered to be in direct crim- It was further charged that the actions of the Respondent violated inal contempt of the Court or any Order it entered. Thewitness Canon 2A which requires Judges to respect and comply with the may well have committed false swearing, but that does not provide law and to act at all times in a manner that promotes public confi- a Court with the ability to punish such a person for direct criminal dence in the integrity and impartiality of the Judiciary. contempt.

By a vote of 5-0, the Commission finds with respect to this Canon TheRespondent should never have directed the Sheriff to take this that the Respondent violated Canon 2A and is therefore guilty of witness into custody and to charge the witness with a crime. That misconduct under SCR 4.020(1)(b)(i). is not the role of the Judiciary. Thatis the role of the duly elected It was further charged that the actions of the Respondent violated prosecutorial authorities in Jefferson County. Even when advised Canon 3B(4) which requires Judges to be dignified and courteous by the prosecutor that no charges would be pursued against this witness, the Respondent still refused to release her from custody. to litigants, jurors, witnesses, lawyers and others which whom the Judge deals in an officia capacity. At the Hearing various witnesses testified on behalf of the Respon- By a vote of 5-0, the Commission finds with respect to this Canon dent as to her good character and reputation. In addition, the that the Respondent did not violate Canon 3B(4) and therefore Commission received by stipulation a large number of Affidavi the charge as to Canon 3B(4) is dismissed. from practicing lawyers and others in the Jefferson County community extolling the Respondent’s abilities and fairness as a District It was further charged that the actions of the Respondent violated Judge for many years. In determining the appropriate discipline, Canon 3B(8) which requires Judges to dispose of a matter, promptly, the Commission took this into consideration. efficien y, and fairly. For the foregoing violations, the Commission concludes that a By a vote of 5-0, the Commission finds with respect to this Canon public reprimand is warranted in this case and by a vote of 4-1, the that the Respondent violated Canon 3B(8) and is therefore guilty Respondent Sheila A. Collins, District Judge 30th Judicial District of misconduct under SCR 4.020(1)(b)(i) in that the Respondent is publicly reprimanded. One member of the Commission would failed to dispose of a matter fairly. have provided only a private reprimand as the appropriate discipline.

Rule 4.270 provides that the Commission’s Order shall become effective within Ten (10) days after service, unless an appeal is file within that time.

BENCH & BAR | 39 JUDICIAL CONDUCT COMM.

I hereby certify that the Findings of Fact, Conclusions of aw and Canon 1 which requires judges to maintain high standards of con- Final Order represent an action of the Judicial Conduction Com- duct and uphold the integrity and independence of the judiciary. mission this 21st day of April, 2016. Canon 2A which requires judges to respect and comply with the ______/s/______law and act at all times in a manner that promotes public confidenc STEPHEN D. WOLNITZEK in the integrity and impartiality of the judiciary. CHAIR OF THE COMMISSION Canon 3B(4) which requires judges to be dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the CERTIFICATE OF SERVICE judge deals in an officia capacity. I hereby certify that a copy of the foregoing was served upon Judge Sheila A. Collins, Jefferson District Court Judge, by mailing same Canon 3B(8) which requires a judge to dispose of a matter to her attorneys, Stephen P. Ryan, 7104 Hillcircle Court, Louisville, promptly, efficien y, and fairly. KY 40214, and Martin E. Johnstone, 6300 Hunting Harbor Road, Prospect, KY 40059; and upon Jeff ey C. Mando and Louis D. Thejurisdiction of the Judicial Conduct Commission in this matter Kelly, 40 West Pike Street, Covington, KY 41011, this 21st day of is under SCR 4.020(1)(b)(i) and (v), and (1)(c) which read in per- April, 2016. tinent part as follows: (1) Commission shall have authority: ______/s/______(b) To impose the sanctions separately or collectively of (1) JIMMY A. SHAFFER admonition, private reprimand, public reprimand or cen- sure; (2) suspension without pay or removal or retirement EXECUTIVE SECRETARY from judicial offi , upon any judge of the Court of Justice or lawyer while a candidate for judicial office, who after notice and hearing the Commission finds guilty of any COMMONWEALTH OF KENTUCKY one or more of the following: JUDICIAL CONDUCT COMMISSION (i) Misconduct in offi . (v) Violation of the code of Judicial Conduct, Rule 4.300. IN RE THE MATTER OF: (c) After notice and hearing to remove a judge whom it find to lack the constitutional statutory qualifi ations for the SHEILA A. COLLINS, DISTRICT COURT JUDGE judgeship in question. 30TH JUDICIAL CIRCUIT For your information, the Commission wishes to call NOTICE OF FORMAL PROCEEDINGS AND CHARGES your attention to the following Supreme Court Rule: Notice is hereby given of the initiation of formal proceedings under Rule 4.180 of Rules of the Supreme Court. At the times set out RULE 4.180 FORMAL PROCEEDINGS in this Notice, you were District Court Judge for Kentucky’s 30th If the Commission concludes that formal proceedings Judicial Circuit located in Jefferson County. Thecharges are as should be initiated, it shall notify the judge. He may follows: file an answer within 15 days after service of the notice. Upon the filing of his answer, or the expiration of time On June 11, 2015, you presided over a bond reduction hearing in for so filin , the Commission shall set a time and place Commonwealth v. Lomac Jeter, Case No. 15-M-9629. In that case, for the hearing and shall give reasonable notice thereof Mr. Jeter was charged with Assault in the 4th Degree (Domestic to the judge. Violence) for allegedly assaulting Jasmine Stone. During the bond reduction hearing Ms. Stone recanted the allegations and claimed Please mail your answer to: Ms. Jimmy Shaffer, Executive that Mr. Jeter did not assault her. Upon hearing her recantation Secretary, Kentucky Judicial Conduct Commission, P.O. you became upset and ordered the sheriff to take Ms. Stone into Box 4266, Frankfort, Kentucky 40604-4266. custody, demanded he charge Ms. Stone with False Swearing and ordered that she be remanded to jail and set a $10,000.00 cash January 11, 2016 bond. This was done despite protests from both the public advocate and the prosecutor. Your actions violated Ms. Stone’s due process ______/s/______rights inasmuch as you took her into custody without holding a STEPHEN D. WOLNITZEK, CHAIR hearing, without advising her of her rights prior to questioning, and without appointing an attorney to represent her. You later refused I hereby certify that copy hereof was served on Sheila A. Collins, to lower the bond even upon learning that Mr. Jeter had contacted Jefferson District Court Judge, by mailing same to her attorney, Ms. Stone and pressured her to recant. Hon. Stephen P. Ryan, 7104 Hillcircle Court, Louisville, KY 40214 this 11th day of January, 2016. Your actions violate SCR 4.020(1)(b)(i) and constitute misconduct in office. Furthermore, your actions violate SCR 4.300 and the ______/s/______relevant portions of the following Canons of the Code of Judicial JIMMY SHAFFER, EXECUTIVE SECRETARY Conduct:

40 | JULY/AUGUST 2016 COMMONWEALTH OF KENTUCKY Thejurisdiction of the Judicial Conduct Commission in this matter is under SCR 4.020(1)(b)(i) and (v), and (1)(c) which read in per- JUDICIAL CONDUCT COMMISSION tinent part as follows:

IN RE THE MATTER OF: (1) Commission shall have authority: (b) To impose the sanctions separately or collectively of (1) SHEILA A. COLLINS, DISTRICT COURT JUDGE TH admonition, private reprimand, public reprimand or cen- 30 JUDICIAL CIRCUIT sure; (2) suspension without pay or removal or retirement from judicial offi , upon any judge of the Court of Justice AMENDED NOTICE OF FORMAL or lawyer while a candidate for judicial office, who after PROCEEDINGS AND CHARGES notice and hearing the Commission finds guilty of any one or more of the following: Pursuant to SCR 4.190, notice is hereby given of the initiation of formal proceedings under Rule 4.180 of Rules of the Supreme (i) Misconduct in offi . Court. At the times set out in this Notice, you were District Court th Judge for Kentucky’s 30 Judicial Circuit located in Jefferson (v) Violation of the code of Judicial Conduct, Rule 4.300. County. Thecharges are as follows: (c) After notice and hearing to remove a judge whom it find On June 11, 2015, at approximately 1:09pm you presided over a to lack the constitutional statutory qualifi ations for the bond reduction hearing in Commonwealth v. Lomac Jeter, Case No. judgeship in question. 15-M-9629. In that case, Mr. Jeter was charged with Assault in the 4th Degree (Domestic Violence) for allegedly assaulting Jasmine For your information, the Commission wishes to call your Stone. During the bond reduction hearing Ms. Stone recanted attention to the following Supreme Court Rule: the allegations against Mr. Jeter. Upon hearing her recantation you became upset and immediately ordered the deputy sheriff to RULE 4.180 FORMAL PROCEEDINGS take Ms. Stone into custody. You further directed the prosecu- If the Commission concludes that formal proceedings should be tor to charge Ms. Stone with making false statements and set a initiated, it shall notify the judge. He may file an answer within $10,000.00 cash bond. Thisaction was made over objections from 15 days after service of the notice. Upon the filing of his answer, the prosecution. or the expiration of time for so filin , the Commission shall set a time and place for the hearing and shall give reasonable notice At approximately 2:01pm that same day the prosecutor formally thereof to the judge. asked you to release Ms. Stone from custody based upon information that Mr. Jeter had contacted Ms. Stone and pressured her to Please mail your answer to: Ms. Jimmy Shaffer, Executive recant. Theprosecutor further indicated that she did not intend Secretary, Kentucky Judicial Conduct Commission, P.O. Box 4266, to prosecute Ms. Stone for making false statements. Despite this Frankfort, Kentucky 40604-4266. information you refused to lower the bond or release Ms. Stone from custody. A video recording of the hearings in question are attached as Exhibit A. March 16, 2016 ______/s/______Your actions violate SCR 4.020(1)(b)(i) and constitute misconduct STEPHEN D. WOLNITZEK, CHAIR in office. Furthermore, your actions violate SCR 4.300 and the relevant portions of the following Canons of the Code of Judicial Conduct: I hereby certify that copy hereof was served on Sheila A. Canon 1 which requires judges to maintain high standards of con- Collins, Jefferson District Court Judge, by mailing same to her duct and uphold the integrity and independence of the judiciary. attorneys, Hon. Stephen P. Ryan, 7104 Hillcircle Court, Louisville, KY 40214, and Martin E. Johnstone, 6300 Hunting Harbor Road, Canon 2A which requires judges to respect and comply with the Prospect, KY 40059, this 16th day of March, 2016. law and act at all times in a manner that promotes public confidenc in the integrity and impartiality of the judiciary. ______/s/______Canon 3B(4) which requires judges to be dignified and courteous JIMMY SHAFFER, EXECUTIVE SECRETARY to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an officia capacity.

Canon 3B(8) which requires a judge to dispose of a matter promptly, efficien y, and fairly.

BENCH & BAR | 41 KBF / IOLTA

kentu cky bar found ation Awards 2016 Grants Totaling $262,688

he mission of the Kentucky Bar Foundation (KBF) is to full co-curricular and residential life experience. This grant will further the public’s understanding of the judicial system support the GSP Political & Legal Issues Focus Area at Northern Tand legal profession through programs and philanthropic Kentucky University, which is akin to a college major for partici- partnerships that help those in need. One way that the KBF serves pating students. this mission is by awarding annual grants to law-related organizations and projects across the Commonwealth. On May 12, 2016, TheInternational Center, Western Kentucky – $17,500 for New the KBF awarded a record-high $262,688 in total grants to 24 Life Project: Preventing Violence & Supporting Survivors in nonprofits working to provide access to justice and legal education the Refugee & Immigrant Communities through Education, for Kentuckians. Legal Assistance, & Job Readiness. Thisgrant supports the Cen- ter’s efforts to provide legal representation to low-income immi- Bluegrass Rape Crisis Center, Statewide – $7,500 for Impact grants who are victims of domestic violence, religious persecution, Kentucky: A Campus Collaborative to Uproot Sexual Violence. or ethnic cleansing, as well as wholly-disabled refugees needing BRCC will host the Impact Kentucky conference over three days guardianship. It will also provide education on legal topics such in fall 2016. Students and staff from all Kentucky colleges will as immigration and workplace and/or housing discrimination, in participate in curriculum development and attend the conference addition to job training for legal immigrants and refugees. to maximize dialogue between administrators and students with the goal of creating a more open and transparent campus. Discus- Kentucky Association of Food Banks, Inc., Statewide – $2,500 sion topics will include legal rights and responsibilities of students for Legal Food Frenzy: A Hunger Relief Campaign. The inau- and administrators when dealing with issues of sexual violence. gural Legal Food Frenzy will be presented in 2017 by the KBA Young Lawyers Division, in partnership with KAFB and the Ken- Children’s Law Center (CLC), Statewide – $40,000 for Ken- tucky Attorney General’s Offi , as a contest among lawyers to tucky Juvenile Justice Jeopardy: Understanding Rights & Pos- collect food and funds for hunger relief across Kentucky. itive Interactions with Law Enforcement. CLC will work with nationally-recognized Strategies for Youth to develop a Ken- Kentucky Coalition Against Domestic Violence, Statewide – tucky-specific version of Juvenile Justice Jeopardy ( JJJ). It will be $34,000 for Interpersonal Protective Orders (IPOs): Kentucky’s an innovative, youth-oriented presentation to educate, train, and New Tool to Protect Survivors of Dating Violence, Stalking, & empower youth to make positive and productive decisions when Sexual Assault. KCADV will present 25-30 trainings with the dealing with law enforcement. JJJ focuses on behaviors, teaching University of Kentucky Offic for Policy Studies on Violence students how to interact with officer respectfully and in a way Against Women to provide education about KRS Chapter 456, that avoids confrontation and unnecessary arrests. CLC estimates which recently created the IPO. Five regional trainings will be that JJJ will serve 1,000 Kentucky students ages 12 – 18 within conducted throughout the state, and at least half of the total train- the first 12 months of the program, focusing on areas of the state ings will target schools and colleges. with the highest concentration of juveniles interacting with police. Kentucky Equal Justice Center, Statewide – $10,000 for Max- Chrysalis House, Inc., Statewide – $15,000 for Accessing the well Street Legal Clinic: Dispelling Myths, Reuniting Fami- Court System & Resolving Legal Issues for Chrysalis House lies. Thisgrant will provide legal and educational services to fam- Women. Chrysalis House will assist clients with addressing un- ilies working to understand the lawful immigration process and met legal needs to enhance their employment potential. Clients those seeking to be reunited with family members still in other will also have opportunities to participate in mock interviews and countries. Services will include providing initial phone screening work with employers who have agreed to hire felons. to potential clients, monthly onsite “Beyond Triage” informational sessions, individual consultation and screening, full case assistance Governor’s Scholars Program Foundation, Statewide – $8,000 with family-based petitions, and community presentations. for Governor’s Scholars Program Political & Legal Issues Fo- cus Area. GSP is a summer program for rising high school seniors Kentucky Guardianship Association, Inc., Statewide – $5,000 that serves 1,000 students from all Kentucky counties annually. It for Guardianship Training Video. Grant funds will support the strives to enhance Kentucky’s next generation of civic and eco- development of a professional, 30-minute video and a related nomic leaders by providing a strong liberal arts program with a manual providing a summary of Kentucky adult guardianship law.

42 | JULY/AUGUST 2016 Kentucky Refugee Ministries, Inc., Central youth aging out of foster care and at an in- & Northern Kentucky – $10,000 for Immi- creased risk of becoming homeless. S.O.C. gration Legal Services Fee Subsidies for K.S. will publish a guide to empower youth the Most Vulnerable Refugees & Immi- and equip them with knowledge and the abil- grants. Grant funds will support legal ser- ity to access services to avoid pitfalls that lead vices to assist refugees who need to file pe- to or exacerbate homelessness, including titions to adjust their immigration status to rights and responsibilities related to housing, permanent residency or file a refugee/asylee emancipation, education, employment, and relative petition to be reunited with their health care, as well as a directory of state- spouse or unmarried children under age 21. wide resources. Services will also support immigrant children eligible to receive green cards due to Sunrise Children’s Services, Statewide – abuse, neglect, or abandonment. $20,000 for Saving Children & Preserving KBF Past President Frank Hampton Families: Expansion into Florence, Lon- Mission Behind Bars & Beyond, State- Moore, Jr., introduces KBF Secretary/ don, & Pikeville. Sunrise serves families in wide – $10,500 for Mentor Coordinator Treasurer Rebekkah Bravo Rechter as she crisis by providing services to help keep a & Trainer for Volunteers Working with presents a grant check to Dr. Aristófanes child from having to be removed from home. Returning Citizens. MBBB will train Cedeño, Governor’s Scholars Program Ex- TheSunrise team works with the family and mentors to work with “returning citizens” ecutive Director, and attorney Tina Nance, the child to offer support, guidance, and solu- as they are released from incarceration after GSP Foundation Associate Director. tions, with the goal of empowering parents/ serving their sentences. Mentors will pro- guardians to manage children’s behavioral vide support and accountability to returning citizens with a goal and health conditions at home. of decreasing the potential for recidivism as they adjust back to public society. Uspiritus, Inc., Statewide – $10,000 for Improving Child Wel- fare & Court Collaboration. Uspiritus provides broad services Nursing Home Ombudsman Agency of the Bluegrass Inc. for at-risk children and families, primarily serving children who (NHOAB), Statewide – $7,510 for Protecting Kentucky’s Res- need intensive support to overcome trauma. Grant funds will sup- idents from Financial Exploitation: A Manual for Long-Term port Uspiritus’ ability to participate in legal proceedings for its Care Facilities. NHOAB will develop a guide about how manag- clients, estimated at more than 500 per year. ers of long-term care facilities can prevent, recognize, record, and report financial exploitation of their elderly residents. Grant funds The KBF awarded scholarships of $10,000 each to Kentucky’s will also provide in-service training for staff at fi e facilities, one three law schools: Louis D. Brandeis School of Law, Salmon P. resident council, one family council, and one group of community Chase College of Law, and University of Kentucky College of healthcare and social service professionals. Additionally, NHOAB Law. TheKBF also awarded annual grants in celebration of the re- will train 30 ombudsmen how to provide further training at 100 cipients of the 2016 KBA Distinguished Judge and Distinguished regional facilities. Lawyer Awards: $1,000 to the Legal Aid Society in honor of Judge Benjamin F. Shobe of Louisville (posthumously), $1,000 to Purchase Area Sexual Assault & Child Advocacy Center, West- Kentucky Legal Aid to be designated for Barren County in hon- ern Kentucky – $1,395 for Educating Victims & their Families or of Judge Benjamin L. Dickinson of Glasgow, and $1,000 to on Legal & Family Resources. Victims of abuse are presented UK College of Law in honor of attorney William E. Johnson of with lots of information when they come forward, which can be Frankfort. Mr. Johnson chose to award the other $1,000 of his overwhelming while trying to cope with trauma. Th ough this grant funds back to the KBF to support its ongoing efforts, which grant, the Center will develop a single brochure what will educate is a much-appreciated first or the KBF! abuse victims and their families about available resources and pro- tections and will provide space for them to track their investiga- In addition to these grants, the KBF also supports annual Kentucky tor’s name, prosecutor’s information, and court dates. Credit Abuse Resistance Education (CARE) Programs across the state, which allow attorneys and judges to give in-person financial Restorative Justice Louisville Inc., Jefferson County – $10,000 responsibility training to high school seniors. The KBF provides for Family Group Conferencing. Conferencing uses a trained statewide coordination efforts and CARE educational booklets facilitator to guide a conversation among victims, offenders, law for thousands of students each year, which amounted to $16,458 enforcement, and community members to allow participants to of support in 2016. develop their own solutions to address harm done. Grant funds will be used to process and facilitate pre-adjudicated cases referred In total, the KBF awarded $262,688 in 2016 grants, the highest from the juvenile justice system. in KBF history. Thesegrants bring the total awarded since 1988 to over $3 million! TheKBF is proud of the efforts of its Board, S.O.C.K.S. (Saving Our Children Keeping them Safe), Inc., supporters, and friends who have helped make these impactful Statewide – $3,325 for Kentucky Youth Homelessness Preven- grants a possibility. We look forward to working with you in the tion Guide: A Legal Rights & Responsibilities Handbook. coming year to reach even greater heights on behalf of Kentucky’s Grant funds will focus on the often underserved population of entire legal community!

BENCH & BAR | 43 KBF / IOLTA

ATTORNEYS DOING GOOD t its heart, the Kentucky Bar Foundation is about attorneys and judges helping others. To celebrate the longstanding tradition of service among members of the Kentucky Bar, the Kentucky Bar Foundation is Aproud to spotlight these attorneys “doing good” in their communities! For more information about the Foundation and its charitable work on behalf of Kentucky’s legal community, visit www.kybarfoundation.org.

AWESOME BREASTFORMS DOCTORS & LAWYERS FOR KIDS

Attorney HOLLY HOUSTON recently created a unique way to support a nonprofit As part of the Louisville Bar Asso- ciation’s “Lawyers Care” initiative (which coincides with Louisville Mayor Greg Fisch- er’s “Give A Day” week), Holly orga- nized a fundraiser for Doctors & Law- yers for Kids, a medical-legal partnership that helps low- income families with legal issues that are barriers to healthy living. Theevent was held on April 17th at 8UP Elevated Drinkery & To make a difference in the lives of women touched by cancer, Kitchen in Louisville. Holly served as “guest bartender,” donating attorney MELISSA R. DIXON volunteers with an organization all of her tips to Doctors & Lawyers for Kids, along with 8UP’s called Awesome Breastforms to hand knit or crochet cotton contribution of $1 for every Kentucky Mule that Holly mixed. breast prostheses for women who have undergone mastectomy In total, $1,000 was raised in an evening! Holly practices with A. or lumpectomy surgery. Theforms are much lighter in weight Holland Houston Attorneys at Law in Louisville. and more comfortable than traditional prostheses, and they are completely free to any woman who requests them. Thevolunteer Photo is courtesy of the Louisville Bar Association bears all costs for supplies and postage. Thanksto volunteers like Melissa, this organization has helped more than 2,500 women in 30 countries since it was founded in May 2015. Melissa practices USE THE HASHTAG KYATTYSDOINGGOOD with Gambrel & Wilder Law Office PLLC, which has office WHEN POSTING PICTURES OF YOUR COMMUNITY in London, Pineville, and Lexington. SERVICE PROJECTS ON SOCIAL MEDIA

44 | JULY/AUGUST 2016 PRESENTING THE U@18 SUPPORTING EDUCATION PROGRAM TO HENDERSON AT GATEWAY COMMUNITY COUNTY HIGH SCHOOL STUDENTS AND TECHNICAL COLLEGE

HERBIE MCKEE AUSTIN VOWELS Attorneys (pictured), , and Attorneys IVERSY (IVY) VELEZ and PAUL WHALEN serve KYLE EVANS recently presented the U@18 Program to students together on the Board of Directors of Gateway Community at Henderson County High School. TheU@18 Program allows and Technical College (GCTC), and they are pictured working young Kentucky attorneys to teach high school seniors about together at a recent Board meeting in Covington. GCTC is the increased freedom and rights, as well as the higher level of northern Kentucky’s only public, accredited, comprehensive personal responsibility, that come with turning 18. U@18 is pre- two-year college. Offering credits in more than 30 subject areas, sented annually by the KBA Young Lawyers Division, and the GCTC works to prepare students for high-wage, high-demand Kentucky Bar Foundation has proudly awarded grants totaling careers. TheGCTC Board of Directors meets at least six times $32,500 to support the development of U@18 materials. Herbie pear year to guide the College as it continues a tradition of and Kyle are Assistant Henderson County Attorneys, and Austin educational excellence. Ivy practices with Shannon D. Sexton, practices with Vowels Law PLC in Henderson. Attorney at Law, PLLC, in Covington. Paul is an attorney with Photo credit goes to Brittany Ross at SurfKy News the U.S. Department of Energy. Photo is courtesy of Gateway Community and Technical College

BENCH & BAR | 45 KYLAP

KYLAP HOSTS LAWYERS IN RECOVERY MEETINGS IN NORTHERN KENTUCKY AND LEXINGTON

he Kentucky Lawyers Assistance Program offers weekly open recovery meetings for lawyers, law students and Tjudges in Northern Kentucky and Lexington. The North- ern Kentucky Lawyers in Recovery meeting is held at 5:00 p.m., on Tuesdays at 510 Washington Avenue, Newport, KY 41071. Please bring your own coffee. TheLexington Kentucky Lawyers in Recovery meeting is held at 7:30 a.m. on Wednesdays at the Alano Club downtown, 370 East Second Street, Lexington, KENTUCKY LAWYER ASSISTANCE PROGRAM KY 40508.

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

KENTUCKY LAWYER ASSISTANCE PROGRAM FOUNDATION, INC., FORGIVABLE LOAN PROGRAM

he KYLAP Foundation is a 501 (c)(3) non-profit Kentucky Corporation created and approved pursuant to Supreme Court Rule 3.910(8) to promote the mission of the Kentucky Lawyer Assistance Program (KYLAP). KYLAP's mission is to assist Kentucky's Tlawyers, law students and judges who suffer from impairments including drug, alcohol, or other addictions, depression, and other mental health disorders.

The Foundation helps Kentucky's lawyers, law students and judges seek medical and professional treatment for impairment issues when no other financial resources for treatment exist. The Foundation is Our partnership could premised on the same principle as the Kentucky Lawyer Assistance Program— lead to equally amazing discoveries. Lawyers Helping Lawyers. considered Kentucky home, lawyers throughout the Bluegrass have valued their partnership with Lawyers Mutual. Our 28 years Your tax-deductible contribution provides of expertise continues to guide them through the rough terrain and perils of direct help for suffering lawyers through claims prevention and risk management. To better navigate all issues associated the extension of (forgivable) loans for treatment (paid directly to the medical a free quote. providers). All money given by lawyers goes By Kentucky Lawyers. For Kentucky Lawyers. directly to the treatment of lawyers.

For more information on the Kentucky Waterfront Plaza | 323 West Main Street, Suite 600 | Louisville, KY 40202 Lawyer Assistance Program Foundation, 502.568.6100 | 800.800.6101 | LMICK.com Inc., please contact KYLAP Director Yvette Hourigan at (502) 564-3795 or at [email protected].

46 | JULY/AUGUST 2016

Kentucky Lawyer Assistance Program

   

BENCH & BAR | 47 CONTINUING LEGAL EDUCATION

CLE Commission member Matt Cook and CLE Commission Chair Janet Jakubowicz were presented with gifts during their last meeting which was held in downtown Frankfort in late May.

CLE COMMISSION UNDERGOES SIGNIFICANT CHANGES BY MARY BETH CUTTER, DIRECTOR FOR CLE

he KBA Continuing Legal Education Commission (CLE served on the CLE Commission since July 1, 2011. Mitch has Commission) held its final meeting of the 2015-16 educa- been a true asset and the CLE Commission is in good hands un- Ttional year on May 20th at Serafini Restaurant in Frankfort, der his direction. Congratulations Mitch! followed by a farewell dinner. While the atmosphere was of fellowship and celebration, to say goodbye to three such experienced CLE COMMISSION WELCOMES NEW MEMBERS and knowledgeable colleagues is never easy, nor is it something I The Continuing Legal Education Commission is pleased to an- celebrate. Matt Cook, of Cole and Morgan in Bowling Green, has nounce the Kentucky Supreme Court’s new appointments to the represented the Second Supreme Court District for six years. Matt Commission. TheCLE Commission is responsible for the admin- has been an invaluable asset and has agreed to serve as chair of the istration and regulation of all continuing legal education activi- CLE Planning Committee for the 2017 KBA Annual Conven- ties and programs for the Kentucky Bar Association (KBA). The tion in Owensboro. With Matt at the helm, we are in for a treat in Kentucky Supreme Court appoints one Commissioner from each June 2017! Julie Roberts Gillum of Gillum and Gillum in Somer- Supreme Court District to represent that region’s KBA mem- set, has represented the Thi d District for two terms and has been bers. For the Second Supreme Court District, Frank Hampton both a pleasure to work with and a voice of common sense and Moore III of Bowling Green has been appointed; for the Thi d reason. Our Chair, Janet Jakubowicz of Bingham, Greenebaum Supreme Court District, Graham C. Trimble of Corbin has been & Doll in Louisville, has represented the Fourth District for two appointed; and, for the Fourth Supreme Court District, J. Tanner terms and has served as chair for the past two years. Janet is one Watkins of Louisville has been appointed. These appointments of those delightful people who makes my job more enjoyable just became effective July 1, 2016. because I have the good fortune to work with her. Her energy will be greatly missed. These Commissioners have represented their FRANK HAMPTON MOORE III (“HAMP- districts and the attorneys of this state with a protective and skill- TON”) is a native of Bowling Green, and ful vigor. Th y will be truly missed, and as I always promise, I will is an attorney with the law fi m Cole & continue to call upon them to serve the KBA and the attorneys of Moore, P.S.C., in Bowling Green. Hamp- Kentucky. The KBA staff and the CLE Commission wish these ton has been a member of the Kentucky outgoing Commissioners well and thank them for their outstand- Bar since 2009. He received his under- ing service. graduate degree from Transylvania Uni- versity and his Juris Doctorate from the CONGRATULATIONS TO MITCH HALL Appalachian School of Law in 2009. Hampton is admitted to I am pleased to announce that the Supreme Court has named practice before the U.S. Court of Appeals, Sixth Circuit, and the Mitch Hall the new chair of the CLE Commission. Mitch is an U.S. District Court, Eastern and Western Districts of Kentucky. attorney with VanAntwerp Attorneys, LLP, in Ashland, and has

48 | JULY/AUGUST 2016 GRAHAM C. TRIMBLE is a Corbin, Ky., native and operates his law fi m, Trimble Law, PLLC, in Corbin. Trimble received his B.A. in political science from Eastern Kentucky University and 2016-2017 CLE his J.D. from Northern Kentucky University’s Salmon P. Chase College of Law. Graham practices family law and personal injury COMMISSION cases, as well as general and business litigation. MEMBERS TANNER WATKINS is an associate with Dinsmore in Louisville, concentrating his practice primarily in the areas of business and fi- Jason F. Darnall duciary litigation, banking litigation, personal injury, and product First District Representative liability litigation. Tanner received his B.A. from Centre College, [email protected] and his J.D., cum laude, from the University of Kentucky College of Law. He is admitted to practice before the U.S. Court of Ap- Frank Hampton Moore III peals, Sixth and Seventh Circuits, and the U.S. District Court, Second District Representative Eastern and Western Districts of Kentucky and Southern District of Indiana. Tanner is just finishing his term as chair of the KBA Young Lawyers Division, [email protected] and in that capacity has served as a member of the Executive Committee of the Board of Governors. Tanner is also very active with the American Bar Association Young Lawyers Graham C. Trimble Division (“ABA YLD”), serving as the Kentucky and Tennessee District Representative, Thi d District Representative and as a member of the ABA YLD Council and a delegate to the ABA YLD House of [email protected] Delegates. J. Tanner Watkins THE CLE COMMISSION WELCOMES THESE NEW MEMBERS Fourth District Representative AND LOOKS FORWARD TO WORKING TOGETHER WITH THEM [email protected] TO FURTHER THE PROFESSION THROUGH EDUCATION. Carl N. Frazier Fifth District Representative carl.frazier@SKOfi m.com

David B. Sloan Sixth District Representative [email protected]

W. Mitchell Hall, Jr., Chair Seventh District Representative [email protected]

Quintairos, Prieto, Wood & Boyer, P.A. INTERESTED IN ASSISTING Attorneys at Law WITH A CLE? HAVE IDEAS FOR A PROGRAM?

Contact Mary Beth Cutter, KBA Di- ATTORNEYS for its Louisville and rector for CLE at [email protected], or any member of the Continuing - Legal Education Commission. ence in civil trial and/or insurance defense litigation. Portable book of business is a plus.

E-mail resume to [email protected]

BENCH & BAR | 49 CONTINUING LEGAL EDUCATION

Looking for Upcoming KBA Accredited CLE Events? Look no further... Check out cle.kybar.org/580 This easy to use search engine containscontains upup toto datedate informationinformation onon CLECLE eventsevents thatthat havehave beenbeen accreditedaccredited byby thethe KentuckyKentucky BarBar AssociationAssociation Continuing Legal Education Commission.

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

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Moderators, Speakers and Contributing Authors Amelia Martin Adams Professor William H. Fortune THANK YOU Ashleigh N. Bailey Carl N. Frazier to those individuals whose contribution Ashley L. Chilton Andrew M. Haile, Jr. of time and expertise helped make the Ashley L. Chilton Andrew M. Haile, Jr. Judge Sara W. Combs Megan P. Keane MAY 2016 Mary E. Cutter Rebecca R. Schafer Douglass Farnsley Judge Je rey M. Walson NEW LAWYER Howard Fineman J. Tanner Watkins PROGRAM A GREAT SUCCESS! Kentucky Bar Association 2016 New Lawyer Program KENTUCKY LAW UPDATE MARK YOUR

Advancing the Profession2016 Through Education CALENDARS! Theannual Kentucky Law Update (KLU) is just around the corner. TheKLU program series is an exceptional benefit of KBA membership and Kentucky is the only mandatory CLE state that provides its members a way of meeting the annual CLE requirement at no additional cost. Registration is available on our website, http://www.kybar.org/page/KLUDatesandlocations. We look forward to seeing you in the fall! 2016 KENTUCKY LAW UPDATE DATES & LOCATIONS LONDON COVINGTON GILBERTSVILLE LONDON COMMUNITY CENTER NORTHERN KENTUCKY KENTUCKY DAM VILLAGE STATE RESORT PARK September 1-2 (TH/F) CONVENTION CENTER BOWLING GREEN September 29-30 (TH/F) October 26-27 (W/TH) HOLIDAY INN & SLOAN LOUISVILLE OWENSBORO CONVENTION CENTER KENTUCKY EXPOSITION CENTER OWENSBORO CONVENTION CENTER September 8-9 (TH/F) October 5-6 (W/TH) November 3-4 (TH/F) ASHLAND PRESTONSBURG LEXINGTON BELLEFONTE HOSPITAL JENNY WILEY STATE RESORT PARK LEXINGTON CONVENTION CENTER September 22-23 (TH/F) October 20-21 (TH/F) December 1-2 (TH/F)

50 | JULY/AUGUST 2016 IN MEMORIAM

F.C. “TYKE” BRYAN, 96, of Mt. Sterling, Ky., died April 16, 2016. He was born in North Middletown, Ky., on Aug. 28, 1919. After growing up in North Middletown, Bryan enrolled at Washington and Lee University in Lexington, Va. He played football, basketball, and was a member of the Pi Kappa Alpha fraternity. He grad- s a final tribute, the Bench & Bar publishes brief memorials recognizing KBA uated in 1941 and began to pursue his members in good standing as space permits and at the discretion of the editors. law degree at Washington and Lee the A Please submit either written information or a copy of an obituary that has been following semester. Following his sec- published in a newspaper. Submissions may be edited for space. Memorials should be ond year at the law school, the institution sent to [email protected]. closed because of World War II. He then attended one term at Harvard Business NAME CITY STATE DATE DECEASED School and decided to go ahead and take Robert Matthews Alexander Glasgow KY January 28, 2016 the Kentucky Bar Exam, even though he Camilia Joanne Belcher Belcher KY February 13, 2016 had not completed law school. He passed. Fred F. Bradley Frankfort KY May 20, 2016 He began his law practice in Mt. Sterling, Feb. 1, 1943, and practiced law there for Jeff ey James Brock Harlan KY April 22, 2016 65 years. He was a member of the Mt. Francis Carroll Bryan Mt Sterling KY April 16, 2016 Sterling Board of Education from 1959- Walter Luke Bubenzer Frankfort KY June 2, 2016 1972. He held a seat on the Board of Di- John J. Chewning Hopkinsville KY December 14, 2015 rectors for Whitaker Bank (formerly Mt. Sterling National Bank) for more than 50 James C. Conner Union KY March 18, 2016 years. He was a deacon and elder at the Robert L. Fears Hopkinsville KY December 23, 2015 First Christian Church. He was member Kermin Elliott Fleming Lexington KY March 31, 2016 of the Mt. Sterling Airport Board and John K. Hickey Fort Belvoir VA May 6, 2016 served as its chairman for 35 years. He was a founding member of the Mt. Sterling Sheldon N. Isaacs Louisville KY May 12, 2016 Golf and Country Club, and he served as Leonard L. Kopowski Melbourne KY April 21, 2016 city attorney. He is also a long-standing Boyce Ficklen Martin Jr. Louisville KY June 1, 2016 member of the chamber of commerce, and Earl O’Bannon Louisville KY June 14, 2016 is an honored member of the chamber’s Hall of Fame. The above information for F.C. Patricia H. Rabits Lexington KY June 3, 2016 Bryan’s obituary was pulled from a version that Herbert T. Ransdell III Louisville KY June 5, 2016 appeared on the Taul Funeral Homes website. To access the full obituary, visit: http://www.taulfu- Ronald H. Stewart Louisville KY April 10, 2016 neralhome.com/home/index.cfm/obituaries/view/ J. Wirt Turner Jr. Palm City FL April 5, 2016 id/3669269. Lillian D. Williams Stanton KY June 1, 2016

BOYCE FICKLEN MARTIN, JR., 80, former Chief Judge of the Kentucky Court of Appeals and the U.S. Court of Appeals for the Sixth Circuit, died Wednesday, June 1, 2016 at his home. Judge Martin was born Oct. 23, 1935 in Boston, Mass. He graduated from Eastern High School and received a Bachelor of Arts from Davidson College in 1957. His extracurricular activities at Davidson included playing football and serving as president of the Sigma Alpha Epsilon chapter, managing editor of the yearbook, president of the Philanthropic Literary Society, and captain in the ROTC. He was a Second Lieutenant in the U.S. Army’s armor branch and later Captain in the Army Reserve. He graduated from the University of Virginia Law School in 1963. He clerked for U.S. Circuit Judge Shackelford Miller before becoming Assistant U.S. Attorney and interim U.S. Attorney for the Western District of Kentucky. After working in private practice and teaching at the University of Louisville Law School for several years, he was appointed Jefferson Circuit Court judge in 1974 and won re-election to the Circuit Court later that year. Following the passage of the Judicial Amendment to the Kentucky constitution, Judge Martin was appointed to the Kentucky Court of Appeals in 1976. He was elected first chief judge of the new Court of Appeals. In 1979, President Carter appointed Judge Martin to the Sixth Circuit Court of Appeals. He was Chief Judge of the court from 1996 to 2003. He also served on the executive committee and other committees of the Judicial Conference of the United States, the national policy-making body for the federal courts. He retired from the court in 2013. Theabove information for Boyce Martin, Jr.’s obituary was pulled from a version that appeared in the Courier-Journal from June 3-5, 2016. To access the full obituary, visit: http://www.legacy.com/obituaries/louisville/obituary. aspx?pid=180197394.

BENCH & BAR | 51 WHO, WHAT, WHEN & WHERE

Have an item for Who, What, When & Where? The Bench & Bar welcomes brief announcements about member placements, promotions, relocations and honors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, Bench & Bar, 514 West Main Street, Frankfort, KY 40601 or by email to [email protected]. Digital photos must be a minimum of 300 dpi and two (2) inches tall from top of head to shoulders. There is a $10 fee per photograph appearing with announcements. Paid professional announcements are also available. WHO, WHAT, Please make checks payable to the Kentucky Bar Association. 4WWHERE & WHEN

ON THE MOVE in the position of associate. Harper counsels public and private companies across a broad range of industries on business matters in connection with real estate acquisitions and dispositions, com- Batson Nolan PLC announces that Court- mercial leasing, and complex term loan and asset-based financing ney Lutz has joined the fi m as an associate, transactions. Harper received his law degree from the University where she focuses her practice in litigation and of Kentucky College of Law (2015) and a B.A. from the Univer- family law. Lutz earned her Juris Doctor, mag- sity of Kentucky (2012). na cum laude, from Belmont University, and her

B.B.A. in music business, magna cum laude, also Fultz Maddox Dickens PLC announces from Belmont. She is a native of Madisonville, Ky., and is admitted that Corey M. Shapiro has joined the fi m as to both the Kentucky and Tennessee Bars. Batson Nolan PLC has counsel. Shapiro has experience representing office in northern Middle Tennessee and assists clients in Ten- clients in a wide variety of commercial dis- nessee and Kentucky. putes, including in the areas of contracts, business torts, trade secrets, and health care. He DelCotto Law Group PLLC recently opened has defended healthcare clients in antitrust actions, partnership an offic in Louisville, its fourth in addition to disputes, and governmental investigations. Additionally, Shapiro office in Somerset, Danville, and its primary has developed an expertise in electronic discovery and was a mem- location in the historic Barton House near ber of the Seventh Circuit Electronic Discovery Pilot Program Gratz Park in downtown Lexington. Thebou- Committee. He earned his J.D. from George Washington Uni- tique law fi m handles individual and business versity School of Law ( J.D., cum laude, 2003) and his A.B. from debtor/creditor matters including financial disputes, restructur- Washington University in St. Louis (1996). Shapiro is admitted to ings and bankruptcies in all chapters. It also focuses on commer- the Bars of New York, Washington, D.C., Illinois, and Kentucky. cial litigation, mediation, and asset protection planning. TheLou- isville DelCotto Law Group offic will be led by member Jamie L. The San Antonio Bar Association (SABA) Harris, a Centre College and Brandeis School of Law graduate. Board of Directors announces D. Larkin Chenault as executive director. Chenault will Bingham Greenebaum Doll LLP announces that local govern- bring decades of expertise in bar association ment leader and attorney David W. Tandy has joined the fi m as and foundation management, including for- of counsel and is now a member of the economic development midable experience in strategic planning, con- practice group. Tandy has served his community in local govern- tinuing legal education, membership services, ment for more than 11 years, helping guide the city’s multi-billion Bench-Bar relations, access to justice/pro bono, diversity, law re- dollar economic growth through his work in various leadership lated education and other community service programs, develop- positions on the Louisville Metro Council. He will continue his ment/fundraising, bar technology and financial controls. Chenault practice from the fi m’s Louisville offic as a member of the di- has more than 32 years’ experience in bar association leadership, versified business solutions team. His legal practice focuses in the previously serving as executive director of the Connecticut Bar areas of business development and outside general counsel rep- Association, the Cleveland Metropolitan Bar Association (where resentation, public finance and government relations work. He he merged two local bars), the State Bar of Michigan and the received his B.S. from Vanderbilt University and his law degree Cincinnati Bar Association and as director for continuing legal from the University of Kentucky College of Law. education at the Kentucky Bar Association. Chenault graduated from the Brandeis School of Law at the University of Louisville Bass, Berry & Sims PLC is pleased to welcome David W. Harp- and was admitted to the Kentucky bar in 1978. er, Jr., to the fi m. Harper will practice in the fi m’s Nashville offic

52 | JULY/AUGUST 2016 Cintas Corporation, headquartered in Cin- Administrative Law Judge in the KY Department of Workers’ cinnati, announces that Ashlee Coomer Foltz Claims (2002-2016) after several years working in defense of has been promoted to chief compliance offi- school boards throughout the commonwealth. cer. Foltz oversees the compliance and ethics program for the company’s 30,000+ employ- Steptoe & Johnson PLLC announces that attorney Jonathan ee-partners across North America and around “Tyler” Adkins has joined the fi m’s litigation team. Adkins’ the world. She earned a B.A. in English from Centre College and practice will focus on civil litigation as well as corporate law from her J.D. from the University of Dayton School of Law. She was Steptoe & Johnson’s offices in Ch leston, W.Va., and Lexington, admitted to the Kentucky Bar in 2005 and in 2013 became a cer- Ky. Adkins joins Steptoe & Johnson from the law fi m of Fowler tified compliance and ethics professional (CCEP). In 2015, she Bell PLLC in Lexington. During his career, Adkins also main- was appointed Xavier University’s Ethicist in Residence at the tained a solo practice and served as a clerk for the Kentucky State Williams College of Business. Police. Adkins is a member of the Lexington Young Profession- als Association, the Young Lawyers Committee of the Defense ThompsonMiller & Simpson announces that Research Institute, and serves on the board of trustees for Sup- Joey Wright has joined the fi m as an associ- porting Heroes, Inc. He earned his law degree from Salmon P. ate. Wright received his B.S. from University Chase College of Law and his bachelor’s degree from Northern of Kentucky and his J.D. in 2012 from Univer- Kentucky University. sity of Kentucky College of Law, where he was the Kentucky Law Journal notes editor. Wright Frost Brown Todd (FBT) is pleased to announce the appointment joins Th mpson Miller & Simpson after serving as law clerk to of nine new members. The following managing associates, listed Chief Justice John D. Minton, Jr. of the Kentucky Supreme Court. by market, have been promoted to members: Cincinnati: Mau- Wright will practice in the fields of appellate law, and commercial reen A. Bickley is a member of the fi m’s product liability and tort and healthcare litigation. and insurance defense practice groups. She handles national product liability litigation for manufacturers of consumer products, Boehl Stopher & Graves announces that Clay hand tools, construction materials and agricultural equipment. Turner has joined the fi m as an associate at- She also advises manufacturers with respect to warnings, instruc- torney. Turner’s practice will focus on defense tion manuals and product warranties. Luke J. Busam is a mem- litigation in areas of bad faith, personal injury, ber of the construction law practice group and represents clients product liability, and no fault claims. Turner in a variety of matters, ranging from pay disputes, bid disputes, received his J.D. from the University of Ken- contract negotiations, mechanics liens and surety bond issues, to tucky. Prior to joining Boehl Stopher & Graves, Turner was a staff litigation, arbitration and mediation. Lexington: Keeana Sajadi attorney for Fayette Circuit Court Judge Tim Philpot. Boarman is a member of the mergers and acquisitions practice group, with a focus on the coal industry. She advises individuals Bingham Greenebaum Doll LLP announces that health care and businesses in a variety of transactional matters, including gen- attorney René R. Savarise has joined the fi m as a partner and eral business planning, entity formation, mergers and acquisitions, is now a member of the health and insurance team. Savarise has and contract formation and negotiation. Martha H. Staude is a more than 25 years of experience related to health care law, and member of the fi m’s regulated business practice group and the will continue her practice from the fi m’s Louisville offi . She insurance regulatory service team. She advises insurance carriers focuses her practice in the areas of general health law, regulatory on a variety of regulatory matters, including risk mitigation and compliance, fraud and abuse, and False Claims Act matters. She compliance strategies, market conduct, and entity formation and regularly advises health care providers of all types, including health licensing matters. Louisville: Amy F. Curry practices in the fi m’s care facility clients, hospitals, physician practices, and physicians. finance and real estate practice group, where she represents lend- She received her J.D. from Duquesne University School of Law, ers, investors, developers and owners nationwide in complex real and her B.A. from University of Pittsburgh. estate finance transactions. Curry is admitted to practice in New York and Kentucky. Casey Wood Hensley is a member of the McBrayer announces that Katherine K. product liability litigation and tort and insurance defense practice Yunker has joined the fi m as of counsel. groups. She serves as trial and appellate counsel on a variety of Yunker joins McBrayer after practicing for complex litigation matters concerning products liability, as well as over 20 years as a solo or in her own small fi m. cases involving premises liability, personal injury, breach of con- She practices in the areas of antitrust law, contract, business disputes and other issues. Nick Jones is a member sumer law, complex civil litigation, intellectual of the fi m’s regulated business practice group and focuses on as- property, and utility regulation. She has argued cases before the sisting financial institution clients with regulatory issues and with First, Sixth, and Ninth Circuits, the Kentucky Supreme Court, and all aspects of mergers and acquisitions. He also focuses his practice the trial courts of Kentucky and several other states. Yunker can be on representing franchise and distribution clients with the devel- reached at [email protected] or 859-231-8780, ext. 103. opment and registration of franchise documents, compliance with state and federal franchise laws, and drafting and negotiating sup- Fogle Keller Purdy PLLC is pleased to announce R. Scott Bor- ply chain agreements. J. Kendrick Wells, IV, is a member of the ders has joined the fi m’s Florence, Ky., offi . Borders served as product liability litigation and tort and insurance defense practice

BENCH & BAR | 53 WHO, WHAT, WHEN & WHERE

groups. He regularly counsels clients on a wide range of complex together a diverse group of professions. Interprofessional educa- commercial disputes and insurance coverage matters. West Ches- tion prepares students for collaboration with other disciplines in ter, OH: Alexander L. Ewing is a member of the fi m’s govern- real-world health care environments, and develops team-oriented ment services and labor and employment practice groups, where faculty committees to improving health care delivery. He is pro- he represents employers in private and public sector employment fessor of pharmacy law and policy at the UK College of Pharmacy. and labor relations matters, including collective bargaining nego- He also holds the endowed Kentucky Pharmacists Association tiations, labor arbitrations, and employment litigation proceedings Professor of Leadership chair. He received his professional edu- before state and federal courts. He devotes a substantial amount of cation in pharmacy at the Philadelphia College of Pharmacy and his practice to local government and school clients regarding labor Science and earned a J.D. at Georgetown University Law Center. relations matters. He also provides advice and training regarding employment law issues. Managing Intellectual Property magazine recently selected Stites & Harbison, PLLC, attorney Man- Middleton Reutlinger announces that Reza dy Wilson Decker to the 2016 edition of Manag- Rabiee has joined the fi m’s business law prac- ing Intellectual Property’s “Top 250 Women in IP.” tice group. He focuses in the areas of corporate Decker is one of only two IP women attorneys hon- law, economic development and incentives for ored from Kentucky, and the only patent attorney business, finance and transactions, mergers honored in Kentucky. This is the second time she has been hon- and acquisitions, real estate development and ored on this list. Decker is a member (partner) of Stites & Har- construction, and commercial lending. Rabiee regularly assists cli- bison based in Louisville and is a member of the fi m’s Manage- ents in a variety of industries, including bourbon and real estate ment Committee. She is a registered patent attorney. Her practice development. He received his undergraduate degree from Van- focuses on intellectual property protection strategy, including coun- derbilt University in 2010. In 2013, he earned his J.D. from the seling clients on infringement, validity and patentability, transfer Emory University School of Law. Rabiee earned his M.B.A. from of intellectual property, patent drafting, and patent prosecution. the University of Louisville, College of Business, in 2015. J. Clair Edwards, an attorney with DelCotto The Glenview Trust Company has added Stephanie L. Mor- Law Group PLLC, has been named the 2016 gan-White to their team of trust professionals. She will concen- Outstanding Young Lawyer by the Fayette trate her efforts with high net worth individuals and their families County Bar Association. This award is given to design and implement trust and financial solutions tailored to a young Fayette County attorney who has to meet unique needs and preferences. Before joining Glenview, demonstrated promise in learning the practical Morgan-White was a partner with the Louisville law fi m of application of law to human problems, admirably fulfi led the du- Goldberg Simpson, LLC, where she spent nearly 19 years serving ties owed by an attorney to the Court, clients, and the community individuals and families in the private practice of law. She received and a dedication to the justice system through involvement in and her J.D. from the Cumberland School of Law of Samford Univer- enhancement of community life. Edwards facilitates the CARE sity in 1995. She had previously earned a B.A. in psychology with (Credit Abuse Resistance Education) program for Lexington’s a minor in sociology from Wittenberg University in 1992. high school students and was recently appointed as a Chapter 7 Bankruptcy Trustee for the Eastern District of Kentucky. Fultz Maddox Dickens PLC announces that E. Rachael Dahlman Warf has joined the fi m Dinsmore & Shohl LLP’s Robert M. Croft as an associate. Warf concentrates her practice has been elected as a member of the Greater on commercial litigation and healthcare law. Louisville, Inc. (GLI) Board of Directors. GLI’s Prior to joining the fi m, Warf practiced at a mission is to accelerate economic growth, job large regional fi m, focusing on commercial lit- creation and business competitiveness in the igation and bankruptcy matters. She has experience representing Greater Louisville Region. A partner at Dins- a wide variety of business clients, including healthcare providers more, Croft is a member of the product liability and toxic tort and financial institutions, in contract actions, collection matters, practice groups. He concentrates his practice in the areas of prod- insurance coverage disputes, and business-related torts. She re- uct and premises liability, insurance coverage issues and business ceived her J.D., cum laude, from the University of Kentucky Col- litigation. lege of Law in 2014 and is a 2009 graduate of Centre College. IN THE NEWS Last fall Judge Kimberly N. Bunnell was elected by her peers to a two-year term as Joseph L. Fink III was a member of the inaugural class of Inter- president of the Kentucky Circuit Judges As- professional Education Fellows of the UK Center for Interprofes- sociation. She follows Retired Jefferson Cir- sional Health Education. Sixteen faculty members from the Col- cuit Judge Stephen George. During this time, leges of Health Sciences, Medicine, Nursing, Pharmacy, Public Judge Bunnell will assist the Court of Justice Health and Social Work were inducted. Fellows were recognized in improving electronic filin , maintaining courthouse safety and as champions of multidisciplinary education through their in- creating innovative educational opportunities for judges across the volvement in research learning and service opportunities bringing state. She will also work closely with the Kentucky General As-

54 | JULY/AUGUST 2016 sembly regarding proposed legislation and the goal of attracting earned her J.D. from TheUniversity of Kentucky College of Law, and retaining qualified jud es. and her B.A. from Western Kentucky University.

The Commonwealth of Kentucky’s Department Dinsmore & Shohl LLP’s Richard “Dick” H.C. of Public Advocacy has named Stites & Harbison, Clay has been elected to the advisory board of PLLC, attorney Doug Farnsley as the recipient of the Museum of Early Southern Decorative Arts the 2016 Public Advocacy Award for his work to (MESDA). Clay currently serves on the board of advance diversity in the legal profession. Farnsley trustees for the Speed Art Museum in Louisville was presented the award in May. ThePublic Advo- and chairs its collections committee. He is a for- cate Award is a long-standing award created to recognize individ- mer chair of the board, and was a co-chair of the $60 million cap- uals who have earned a place of honor through dedication, service, ital campaign for the museum’s expansion project. Clay is a part- sacrifice and commitment to fair process and individual liberties. ner in Dinsmore’s litigation department and serves on the fi m’s Farnsley is a member (partner) of Stites & Harbison based in the Board of Directors and as the fi m’s Kentucky ethics partner. Clay Louisville offi . He is the immediate past president of the Ken- practices in the areas of business and fiducia y litigation, appellate tucky Bar Association, where he previously served as president, practice and administrative law. president-elect, and vice president, as well as six years as a member of its Board of Governors. Stites & Harbison, PLLC, attorney Cassidy Rosenthal has been named offic executive mem- Mazanec, Raskin & Ryder (MRR) announc- ber for the Lexington offic effective immediate- es that partner Christina L. Vessels has been ly. She succeeds attorney Greg Parsons, who has admitted as a member to the Federation of served in this role for fi e years. Parsons, a member Defense & Corporate Counsel (FDCC). Es- (partner) of the fi m, will continue to serve clients tablished in 1936, the FDCC is composed of in his construction and litigation practice, and serve on the fi m’s recognized leaders in the legal community who six-member management committee. As the new offic executive have achieved professional distinction, and is dedicated to promot- member, Rosenthal will be active in the Lexington community ing knowledge, fellowship, and professionalism of its members as on behalf of the fi m and assist the chair in executing fi m policy. they pursue the course of a balanced justice system and represent She will continue to serve fi m clients and practice as a member those in need of a defense in civil lawsuits. Vessels focuses her (partner) of the fi m. practice on insurance defense and coverage, professional liability defense, bad faith and extra contractual litigation, governmental Wm. T. (Bill) Robinson III, member-in- liability, and appellate law. She represents a wide variety of clients charge of the Florence, Ky., offic of Frost including individuals, small businesses and national corporations. Brown Todd LLC has been named chairman Active in a number of professional organizations, she is a member of TheNational Judicial College (NJC) Board of both the Kentucky Bar Association and Fayette County Bar of Trustees, effective June 1, 2016. Robinson Association, in addition to the Kentucky Defense Counsel. She has served on the NJC board since 2013, including as treasurer. He has been active in the American Bar Association (ABA) for more than 30 years, including as 135th ABA KBA TERM LIFE & OWN OCCUPATION DISABILITY PLANS President (2011-12), ABA Treasurer (2005- 08), 10 years on ABA Board of Governors, over 30 years in ABA House of Delegates and nine years as Kentucky State Delegate. Robinson is a Life Member, Sixth Circuit Judicial Conference; Fellow, American Academy of Appellate Lawyers; Fellow, Simplified, non-medical application for up to International Society of Barristers and Life Leadership Fellow, American Bar Founda- $500k in life and $10k/mo in disability tion. He is a member of American Board of Trial Advocates (ABOTA); American Law Institute; International Association of Defense Counsel; Product Liability Advi- sory Council and a past Commissioner on the Uniform Law Commission. Robinson served as 50th President, Kentucky Bar As- Call or Email TODAY | 800.928.6421 | [email protected] | www.NIAI.com sociation (1985-86); President, Kentucky NIA IS THE KBA LIFE & DISABILITY PLAN ADMINISTRATOR. *EXAMS OR ADDITIONAL INFO MAY BE REQUIRED WITH CERTAIN MEDICAL HISTORIES. Bar Foundation (1988-89); Founding MUST BE UNDER 40 TO APPLY FOR $500K IN LIFE AND UNDER 50 TO APPLY FOR $10K/MO IN DISABILITY. Chair (1986-88), Kentucky Interest on Lawyers Trust Accounts (IOLTA) Fund;

BENCH & BAR | 55 WHO, WHAT, WHEN & WHERE

President, National Caucus of State Bar Associations (1995-96) (KACCC). He was elected to the office y his and is on the Board of the American Inns of Court Foundation. fellow circuit clerks during the 2016 Circuit Robinson is a graduate of Th mas More College (1967) and the Court Clerks Spring Conference that took University of Kentucky, College of Law (1971), where in 2004 he place April 19-20 in Frankfort. Riggs’ term as was inducted into the Alumni Hall of Fame. KACCC president began immediately and is for one year. Riggs is the first Fayette County The University of Kentucky (UK) College circuit court clerk to be elected KACCC president. Prior to be- of Law recently inducted Stites & Harbison, ing elected as KACCC president, Riggs served as the association’s PLLC attorney Steve Beshear to its Hall of first vice president, second vice president and was a member of the Fame for 2016. Inclusion in the Hall of Fame Education, Legislative, Driver’s License, and Technology Com- is the highest honor one can receive from the mittees. College of Law. Attorney Steve Ruschell earned the UK College of Law Community Frost Brown Todd (FBT) Member R. James Service Award. Theattorneys were recognized Straus received the 2016 Brown-Forman Spir- during the Kentucky Bar Association annual it of Justice Award at the 13th annual Brush, convention held at the Kentucky Internation- Bottle and Barrel of the Bluegrass (BBB). Straus al Convention Center in Louisville, Ky., on is currently serving a fourth term as board chair May 11, 2016. Beshear is a member (partner) for the Legal Aid Society, which is more than of Stites & Harbison based in Lexington. He any other individual has served in the organization’s nearly 100-year joined the fi m in 1987, served eight years as history. At FBT, Straus focuses his practice on general business Governor of the Commonwealth of Kentucky and rejoined the planning and problem solving for private and public companies. fi m in 2016. Beshear received his J.D., Order of the Coif, and He assists in the buying and selling of companies and other strate- B.A., with high honors and Phi Beta Kappa, from the University gic transactions, as well as anti-trust analysis, supply chain design of Kentucky. Ruschell is also a member (partner) of Stites & Har- and franchise law. He also represents financial institutions and bison in Lexington. He is the chair of the Lexington offi ’s real their directors and advisors. estate service group. Ruschell received his J.D. and B.B.A., with honors, from the University of Kentucky. Tom Coffey has been selected to serve as president-elect of the Brain Injury Alliance Dinsmore & Shohl LLP’s J. Tanner Wat- of Kentucky (BIAK) board. Coffey is a share- kins was appointed by the Kentucky Supreme holder with Morgan & Pottinger, P.S.C., in Court as representative of the 4th district on Louisville. He has served on the BIAK board the Kentucky Bar Association’s Continuing since 2012 and previously served as the policy Legal Education (CLE) Commission. Wat- analyst for the Brain Injury Association of America. kins will serve a three year term. As member, Watkins will be partly responsible for the administration and reg- Stites & Harbison, PLLC, attorney David Rat- ulation of all continuing legal education programs and activities terman was inducted into the University of Ken- for the Kentucky Bar Association. Watkins is a member of Dins- tucky (UK) College of Engineering Hall of Dis- more’s Litigation Department. Watkins earned his J.D. from the tinguished Alumni in a ceremony held on April 15. University of Kentucky College of Law, cum laude, in 2008 and Less than one half of one percent of the College of received his undergraduate degree from Centre College in 2004. Engineering’s graduates have received this honor. Ratterman is a member (partner) of Stites & Harbison in the con- Fayette County Circuit Court Clerk Vincent Riggs is the new struction service group. His practice focuses on general construc- president of the Kentucky Association of Circuit Court Clerks tion law, with particular emphasis on the fabricated structural steel industry. Ratterman received a B.S. in mechanical engineering from the University of Kentucky. He is a life member and current ADVANCEDINVESTIGATIVESOLUTIONSINC. president of the UK Alumni Association, a UK Fellow, and has The preeminent investigative firm in the region been a member of the UK Advocacy Network since its inception.

AIS, a worldwide cadre of former FBI Agents and Ronald R. Van Stockum, Jr., announces that state /local law enforcement professionals, can he has been appointed to the Oil and Gas assist you and your clients with: Workgroup by Secretary Charles G. Snavely, • Complex • Security Carl F. Christiansen Secretary of the Kentucky Energy and Envi- Investigations Assessments aisinvestigate.com ronmental Cabinet. Dr. Van Stockum will as- • Polygraph • Background 502-722-1931 sist others in the workgroup to address chang- Investigations • Forensic [email protected] es in statutes and regulations that deal with oil and gas issues in Accounting the state of Kentucky, including those dealing with the disposal of low-level radioactive material.

56 | JULY/AUGUST 2016 TheFayette County Bar Association bestowed Stites her professional peers. Thisaward is given to an attorney demon- & Harbison, PLLC, attorney J. David Porter with strating excellence in the practice of law within their first 10 years the Henry T. Duncan Award. According to the as- of practice. sociation, this award is given to an attorney “whose integrity, leadership and professional conduct serves Dinsmore & Shohl LLP’s Michelle Tupper to exemplify the high ethical and professional stan- Butler is a graduate of the Louisville Bar As- dards that benefit the community.” Porter practiced in the trusts sociation (LBA) Leadership Academy. Tupper & estate planning service group based in the Lexington offi . Butler took part in the 2016 class. Tupper But- Porter currently serves as president elect of the Kentucky Bar ler completed the LBA’s Leadership Academy Foundation and is also a Fellow of the Foundation. He is a Fel- in March 2016 and looks forward to using her low and Kentucky State Chair of the American College of Trust leadership skills to help shape Louisville’s future. Tupper Butler and Estate Counsel. is an attorney in the Litigation Department. Her practice focuses on complex civil litigation in federal and state courts, especially on Tanisha A. Hickerson, of Quintairos, Prieto, claims and investigations brought pursuant to the False Claims Wood & Boyer, P.A., was awarded Rising Star Act and Anti-Kickback Act. of the Charles W. Anderson, Jr. Bar Associa- tion, Inc. (formerly Louisville Black Lawyers On June 16-17, 2016, more than 20 high school, college and law Association, Inc.). The Charles W. Anderson, students came to Northern Kentucky University to attend the Jr. Bar Association, Inc., an affiliat chapter of 2016 KBA Why Choose Law/Diversity Pipeline Event. The the National Bar Association, is a nonprofit organization dedi- event provided these students from underrepresented populations cated to the advancement, development, and support of minority in the legal profession to attend a mock law school class, discuss attorneys in the Metro Louisville area. Hickerson is a partner in a legal career with attorneys from across the Commonwealth and the Louisville offic of QPWB. She practices in the area of gen- witness lawyers practicing during a legal clinic. Theprogram was eral civil defense litigation. She is involved in the fi m’s diversity sponsored by the Kentucky Bar Association Young Lawyers Divi- and inclusion initiatives and serves as co-chair of the fi m’s wom- sion, the Kentucky Bar Association, the Kentucky Bar Foundation en’s affin y group. She was awarded the Rising Star award for her and the Northern Kentucky Bar Association. personal integrity, distinguished service, and collective respect by

Address or e-mail changes?! Notify the Kentucky Bar Association Over 18,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which he or she may be communicated, as well as a physical address if your mailing address is a Post Offi e 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.

Members are also required by rule SCR 3.175 to maintain with the Director a valid email address and shall upon change of that address notify the Director within 30 days of the new address. Members who are classifi d as a “Senior Retired Inactive” or “Disabled Inactive” member are not required to maintain a valid email address on file.

There are several ways to update your address and/or email for your convenience.

VISIT our website at https://www.kybar.org to make ONLINE changes or to print an Address Change/Update Form -OR- EMAIL the Executive Director via the Membership Department at [email protected] -OR- FAX the Address Change/ Update Form obtained from our website or other written notification to: Executive Director/Membership Department (502) 564-3225 –OR- MAIL the Address Change/Update Form obtained from our website or other written notifica ion to:

Kentucky Bar Association, Executive Director 514 W. Main St., Frankfort, KY 40601-1812

*Announcements sent to the Bench & Bar’s Who, What, When & Where column or communication with other departments other than the Executive Director do not comply with the rule and do not constitute a formal roster change with the KBA.

BENCH & BAR | 57 Access the Kentucky Bar Association’s CAREER CENTER at http://www.kybar.org/careercenter

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