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Underwritten by: Metropolitan Life Insurance, 200 Park Avenue, New York, NY 10166 This issue of the Kentucky Bar Association’s VOL. 82, NO. 2 B&B-Bench & Bar was published in the month of March. COMMUNICATIONS & PUBLICATIONS COMMITTEE Contents James P. Dady, Chair, Bellevue 2 President’s Page Paul Alley, Florence By: Bill Garmer Elizabeth M. Bass, Gallatin, Tenn. James Paul Bradford, Paducah Features: Art Law, Copyright and Trademark Frances E. Catron Cadle, Lexington Anne A. Chesnut, Lexington 6 Art in the Shadow of the Law Elizabeth A. Deener, Lexington By: Brian L. Frye Tamara A. Fagley, Lexington 14 Copyright Law: The Basics Cathy W. Franck, Crestwood By: Will Montague Lonita Baker Gaines, Louisville William R. Garmer, Lexington 18 The Fundamentals of Protecting Your Client’s Brand: Laurel A. Hajek, Louisville Federal Trademark Registration P. Franklin Heaberlin, Prestonsburg By: Ted Houlehan Judith B. Hoge, Louisville Jessica R. C. Malloy, Louisville 22 2018 KBA Annual Eileen M. O'Brien, Lexington Preconvention Brochure Sandra J. Reeves, Corbin Gerald R. Toner, Louisville Columns Sadhna True, Lexington 42 Young Lawyers Division Zachary M. Van Vactor, Louisville By: Eric M. Weihe Michele M. Whittington, Frankfort 43 Northern Kentucky University Salmon P. Chase College of Law PUBLISHER John D. Meyers 44 University of Louisville Louis D. Brandeis School of Law EDITOR 45 University of Kentucky College of Law

James P. Dady 46 Effective Legal Writing By: Jennifer Jolly-Ryan MANAGING EDITOR 48 Shop Talk Shannon H. Roberts By: Michael Losavio DESIGN & LAYOUT 50 Future of Law Practice Jesi L. Ebelhar By: Robert A. Young The B&B - Bench & Bar (ISSN-1521-6497) Bar News is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 52 KBA Board of Governors Minutes and Upcoming Meeting Dates KY 40601-1812. Periodicals Postage paid at Frankfort, KY and additional mailing offices. 54 Judicial Conduct Commission All manuscripts for publication should be sent 58 KBA Audit Information to the Managing Editor. Permission is granted for reproduction with credit. Publication of 59 Law Day 2018 any article or statement is not to be deemed an endorsement of the views expressed therein by the Kentucky Bar Association. Departments Subscription Price: $20 per year. Members 60 Kentucky Lawyer Assistance Program subscription is included in annual dues and is not less than 50% for the lowest subscription price 62 Kentucky Bar Foundation/IOLTA paid by subscribers. For more information, call (502) 564-3795. 64 Continuing Legal Education POSTMASTER Send address changes to: 74 Who, What, When and Where B&B - Bench & Bar 514 West Main Street Frankfort, KY 40601-1812 Several inside graphics by ©istockphoto.com/JesiWithers

BENCH & BAR | 1 PRESIDENT’S PAGE

The true measure of any society can be found BILL GARMER KBA PRESIDENT in how it treats its most vulnerable members. - m a h at m a g a n d h i

hat statement comes to us not only do not have access to the courts and that In Kentucky, one of the highest levels of from Gandhi but also from many of means that they do not have access to poverty is in Clay County: Tthe teachings of the great religions justice. of the world. It is a fundamental concept of a just society that has been repeatedly Many of our fellow citizens live in financial 46.8% acknowledged down through the centuries. poverty. 12.7 percent of the population of of Clay County residents It is applicable in every society around the the United States lives below the poverty live below the poverty line. world. It is applicable here in the United line, while 18.5 percent of Kentucky’s cit- States of America even though we have izens, or 820,845 Kentuckians, live below It is clear that because we have so many been termed the wealthiest society in the that standard. Other statistics make Ken- people in Kentucky living below the pov- history of the world. Even with our great tucky’s level of poverty even more graphic. erty line that we have more than our fair wealth we still have many among us who Kentucky is one of only four states in the share of people who cannot afford legal are not well off and who do not have the United States where more than 18 percent services. The Kentucky Access to Justice advantages that others may have. of our population lives below the poverty Commission was created to address these line. inequalities that exist in our Common- Our founding fathers recognized this fact wealth. The Kentucky Access to Justice when they wrote the Constitution and of Kentucky’s Commission is a blue-ribbon panel that made this country a country dedicated to 109 120 counties brings together the Courts, the Kentucky the Rule of Law, a country where every have a higher percentage of Bar Association, civil legal aid providers, woman and man is created equal. Unfor- people living in poverty than the and other stakeholders in a coordinated tunately, people who have more wealth have United States average of 12.7% effort to identify and remove barriers to more access to the courts of this country civil justice for low-income and disadvan- than do those who do not have wealth. of Kentucky’s taged people. The Commission embodies The result of this inequality in wealth is 120 counties shared, ongoing institutional commitments an inequality in the administration of jus- 68 to address issues of access to justice in a have a higher percentage of tice. As a result many people in America, coordinated and collaborative way, mobi- people living in poverty than the including citizens of this Commonwealth, lizing the stature of individual leaders, the Kentucky average of 18.5% 2 | MARCH/APRIL 2018 Horses aren’t the only thing in Kentucky that move fast.

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highest levels of the Courts, the bar and While specific projects will continue to director for the program. Nan Hanley is other participating institutions to raise the evolve, broadly speaking, the Commission’s the communications/training coordinator visibility and credibility of these efforts. goals include identifying and addressing of the Commission. Nan worked for the obstacles to providing access to the justice Access to Justice Foundation, a statewide When Chief Justice Minton introduced system; developing strategies to increase resource center for civil legal aid programs, the Kentucky Access to Justice Commis- funding, resources, support, development for over 20 years. They can be contacted sion in October 2010, he challenged the and delivery for those working to ensure via phone at (502) 564-5493 or email at: newly formed Commission and Kentucky’s access to the courts; assisting in increasing glenda.harrison@kyaccesstojusticecommi legal community to remove impediments access to the justice system through use of ssion.org. to access to the justice system, including volunteer attorneys; expanding the delivery physical, economical, psychological and and support of civil legal aid through the As I have said many times, while speaking language barriers; to develop effective development of committed government to lawyers all over the Commonwealth, the plans for funding for civil legal services, leaders; increasing public awareness of practice of law is a profession dedicated to who work on behalf of those who have no civil legal aid and its positive impact on the the service of people. We all do a fairly meaningful access to the justice system; and state and local communities; and partnering good job of being of service to people who to expand assistance available for self-repre- with other service providers to monitor and can pay for lawyer services. We do not all sented litigants. During its early years, the evaluate the effectiveness of the statewide do such a good job in providing service to Commission was ably led by Judge Roger delivery systems. those who cannot afford to compensate L. Crittenden, a retired Franklin County their counsel, and actually pay for legal circuit judge. Judge Crittenden brought The Kentucky Access to Justice Commis- services. That’s where the Kentucky Access years of judicial and administrative expe- sion office is located in Suite 225 at the to Justice Commission comes into play. It rience, as well as the leadership ability and state Capitol in Frankfort. Glenda Har- is there to help all Kentucky lawyers find diplomacy, to the newly formed Commis- rison serves as the executive director of better ways to provide legal service to those sion. Since its inception, the Commission’s the Commission. Glenda has worked for who can least afford it. By so doing, the work has been facilitated by the Access to Legal Aid of the Bluegrass for over 40 Access to Justice Commission makes us Justice Foundation. years and most recently served as advocacy all better lawyers.

In 2017, the Kentucky Supreme Court reaffirmed its commitment to increasing civil legal aid to low and moderate income Kentuckians and the ongoing work of the Commission. Chief Justice Minton named Justice Michelle Keller as the Chair of the Commission. In commenting on her appointment to the Commission, Justice Keller said “After my appointment by our Chief Justice, I began to study how Ken- tucky might better embody our Supreme Court’s comprehensive vision regarding access to justice. It became apparent to me fairly early on in that process, that the jurisdictions where the most progress was being made maintained Commissions led by full- time staff. That allowed those Commissions to devote focused attention to the various issues, while coordinating volunteer and stakeholder participation. The leadership of both the Kentucky Bar Association and the Access to Justice Foundation stepped up and assisted me in transforming Ken- tucky’s Commission into the model I have described.”

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BENCH & BAR | 5 ARTFeatures: LAW, COPYRIGHT & TRADEMARK

6 | MARCH/APRIL 2018 THE WAIT IS OVER! See Page 22 for Convention Details

hile precious little law is specific The purpose of copyright is to encourage provides that member states must give to art, a rich and complex body of authors to create new works by giving them authors certain moral rights, including Wsocial norms and customs effec- an economic incentive. Without copyright, rights to attribution and integrity.10 Soon tively governs artworld transactions and authors couldn’t recover the costs associated after the United States joined the Berne informs the resolution of artworld disputes. with creating and marketing their works. Convention in 1989, Congress passed the In any case, a smattering of scholars study Copyright is supposed to solve this market Visual Artists Rights Act (“VARA”), which art law and a similar number of lawyers failure by giving them the exclusive right to gives the “author” of a “work of visual art” practice it. In this essay, I will provide a make and distribute copies. Writers get the certain rights of attribution and integrity.11 brief overview of art law from three differ- exclusive right to sell copies of their books, ent perspectives: the artist, the art market, and musicians get the exclusive right to sell The right of attribution gives artists the and the art museum. copies of their songs. right to claim authorship of their works, and disclaim authorship of works they THE LAW OF THE ARTIST In theory, copyright should be largely didn’t create.12 The right of integrity gives Art is as art does. Artists make art, and the irrelevant to artists. Copyright protects artists the right to prevent the “inten- public determines whether it matters and intangible “works,” not the tangible “copies” tional distortion, mutilation, or other what it means. But the law shapes what in which a work is reproduced. According modification” of their work, if it would be artists can do, how they can do it, and to copyright, a painting is just a unique “prejudicial” to their “honor or reputation,” what they can do with it. And in turn, art “copy” of the intangible work it embodies. and the right “to prevent any destruction challenges the law to explain and justify its But artists typically sell unique objects, not of a work of recognized stature.”13 VARA assumptions about meaning and aesthetic copies. The art market relies on scarcity, rights cannot be transferred, but can be value.1 not volume. Leonardo Da Vinci’s Salvator waived in writing, and terminate at death.14 Mundi is worth $450 million, but a repro- A. COPYRIGHT duction is worth essentially nothing. In practice, VARA is largely irrelevant, Copyright is indifferent to because the interests of artists and owners art. For better or worse, it But in practice, many artists sell both are usually aligned. After all, art is valu- automatically protects every unique objects and reproductions, and able only if it is attributed to the artist “original work of authorship” copyright enables them to do so. When and kept in good condition. But some- as soon as it is “fixed in a tan- artists sell paintings, they keep the copy- times, the interests of artists and owners ©©gible medium of expression.”2 “Original” right, and can sell as many reproductions diverge. Occasionally, artists have asserted just means “not copied” and “minimally as they like. For many commercial artists, the VARA right of attribution to disavow creative,” resulting in a comically low stan- their reproduction rights can be far more a work, typically claiming that the owner dard for copyright protection.3 When an valuable than their actual paintings. And misrepresented or failed to maintain it. For artist creates a painting, every brushstroke the same is true for some popular fine art- example, Cady Noland has asserted the is protected by copyright the moment ists, like Andy Warhol. VARA attribution right to disavow res- brush touches canvas. But likewise, when torations of her works Log Cabin (1990) a teenager composes a tweet, each word In other words, copyright seemingly gives and Cowboys Milking (1990).15 But more is protected by copyright as soon as it is artists the best of both worlds. It’s either commonly, artists have asserted the VARA written. Nevertheless, some things are cat- irrelevant or beneficial. But in some cir- right of integrity to prevent the alteration egorically unprotected by copyright, such cumstances, it can actually work to their or destruction of their work. as white-page telephone directories and disadvantage. For example, many countries shovels.4 have created “resale royalty rights” that give artists the right to claim a percentage of Moreover, copyright explicitly ignores the the resale price of art they created.6 And aesthetic value of the works it protects.5 in 1976, California tried to create a similar This “aesthetic nondiscrimination” princi- right.7 But courts have held that the Cal- ple was intended to ensure that courts don’t ifornia law is preempted by the “first sale” discriminate against either avant-garde or doctrine, which provides that transferring a commercial works. But it also requires copy of a work terminates the distribution courts to treat all works identically, even right in that copy.8 As a consequence, when though the scope of copyright protec- an artist sells a painting, the artist cannot tion has gradually become immeasurably control its resale or demand a cut of the broader, granting ever more protection to profits.9 an ever increasing range of works, and even as technology has transformed the ways in B. MORAL RIGHTS which we use those works. In theory, copyright does give artists some special protections. The Berne Convention Cady Noland, Log Cabin (1990)

BENCH & BAR | 7 ARTFeatures: LAW, COPYRIGHT & TRADEMARK

The Achilles heel of VARA is waiver. While most countries make moral rights non-waivable, VARA permits waiver. Sophisticated arts organizations typically require a VARA waiver whenever relevant. But many smaller arts organizations are Andy Warhol, unaware of VARA or their potential lia- Campbell’s Soup bility for infringement of VARA rights. Cans (1962) Organizations commissioning site-specific works should consider potential VARA liability and request a VARA waiver. And artists creating site-specific works should know about their VARA rights and at least negotiate any VARA waiver.

VARA issues usually arise when the owner become an issue when the owner of a site- could use anything they liked, pop art took of a site-specific work wants to move, alter, specific work wants to use the site for a that assumption to new extremes. Andy or destroy it. If the artist’s VARA rights different purpose. Understandably, courts Warhol notoriously used images from any are intact, it can be possible to prevent - or are reluctant to hold that site-specific art source imaginable in order to create his at least limit - the changes. For example, is forever, regardless of the wishes of future enigmatic commentaries on contemporary in 2005, the Massachusetts Museum of owners. Extension of the VARA integrity life and culture. Contemporary Art (“Mass MoCA”) com- right to site-specificity would be a power- missioned Christoph Büchel to create ful disincentive to commissioning public Ironically, when he used commercial marks art, not to mention a hardship to property and works, the owners usually turned the Training Ground for Democracy, a large 20 interactive art installation.16 The relation- owners unaware of the risks associated with other cheek or simply asked him to stop. ship soon soured, and Büchel disavowed VARA. When Warhol created his iconic series of paintings Campbell’s Soup Cans (1962), the the unfinished work. In 2007, Mass MoCA C. FAIR USE filed a declaratory judgment action, seeking Campbell’s Soup Company initially con- to exhibit the work. Büchel counterclaimed, The “fair use” doctrine is the most import- sidered suing for trademark infringement, alleging infringement of his VARA rights ant exception to copyright, intended to but desisted, and was ultimately thrilled by protect free speech and increase the eco- the free publicity. of attribution and integrity. Ultimately, 18 Büchel won a partial victory, in large part nomic efficiency of copyright. Essentially, because he never waived his VARA rights. it provides that certain uses of a copyrighted By contrast, other artists were often less work are non-infringing. The key questions understanding. When Warhol used part But more commonly, courts conclude that are whether the use is “transformative” in of Patricia Caulfield’s 1964 photograph of artists have waived their VARA rights or some way and whether it competes with hibiscus flowers to create hisFlowers (1965) that VARA simply doesn’t apply. For exam- the original use. At least in theory, the first series of painting, Caulfield threatened to ple, in 1984, Chapman Kelley received question is subjective and the second is sue him for copyright infringement and objective: is the use justified and is it demanded a cash settlement. permission from the Chicago Park District 19 to install Wildflower Works, a site-specific efficient? work consisting of two elliptical flowerbeds The rise of appropriation art in the 1980s planted with an assortment of wildflow- Artists have always borrowed ideas and brought the tension between copyright ers, each about the size of a football field. images from the world around them, and fair use in artistic practice into relief. In 2004, the Park District changed the including from each other. Until relatively Sherrie Levine was able to create her con- flowerbeds into smaller rectangles planted recently, they rarely worried about fair use, troversial appropriated photographs like with different flowers. Kelley sued the Park for the same reason they rarely worried After Walker Evans (1981) only because the District for infringement of his VARA about copyright. Artists typically made photographs she copied were in the public integrity right, but the court held copyright unique objects, so copyright and copying domain. And many artists were infuriated could not protect Wildflower Works, because just didn’t matter. But with the prolifera- by Elaine Sturtevant’s brilliantly subversive a garden is not a “work of authorship … tion of technologies that enabled artists to imitations of their works, with the notable fixed in a tangible medium.”17 reproduce both their own works and works exception of Warhol. When asked about his made by others in a congeries of different own technique, he replied, “I don’t know, While artists occasionally try to assert their ways, copyright and fair use suddenly ask Elaine.” VARA rights, they are rarely successful, in became relevant. And no one knew how large part because courts are sensitive to to answer the questions they presented. Copyright infringement actions were inev- the circumstances. VARA rights typically itable, and have helped define scope and While artists had always assumed they application of the fair use doctrine, for

8 | MARCH/APRIL 2018 better or worse. As is so often the case, declare themselves originals, and depends artists often unwittingly push at the bound- In 2015 another artist, Richard Prince, on scarcity, rather than abundance. In an aries of the law, and expose the limitations presented the show New Portraits at the age of reproduction, the art market insists of copyright doctrine, which otherwise Gagosian gallery. It consisted of 38 paint- on the aura of authenticity.25 might remain unnoticed. ings, made by printing an Instagram post onto a large canvas. Essentially, Prince Essentially, the art market is an insider Initially, courts were skeptical of the legit- chose Instagram photos, made nonsensical market for positional goods. Leading imacy of appropriation art, and dismissive comments on the posts, edited a screen- sources of art market information esti- of its fair use claims. And the scapegoat cap of the post to eliminate unwanted mate total sales of $45 to $55 billion per was Jeff Koons. In 1980, Art Rogers created comments, and had the edited screencap year.26 But these estimates are tantamount the photograph Puppies. He sold copies and printed onto a canvas. Some of the people to guesses, as reliable information about the licensed it for use by third parties, includ- whose posts he copied were flattered, but art market is so scarce. Information about ing on postcards. In 1987, Koons purchased many were livid, and several have sued for the “primary market” is almost nonexistent. a postcard of Puppies, and hired Demetz copyright infringement. Prince claims fair And information about the “secondary Studio in Ortessi, Italy to create four use, but it is unclear how the court will market” is limited and unreliable.27 painted wooden sculptures based on the decide.23 postcard. Koons sold three of the sculptures A. THE PRIMARY MARKET at his exhibition “Banality Show” for a total Ultimately, courts struggle to apply copy- The primary art market comprises the of $367,000, and kept the fourth. Rogers right to art and reach coherent results, market in which artworks are sold for the sued Koons for copyright infringement, and because copyright doctrine is not designed first time. While art transactions take many Koons claimed fair use. The court rejected to accommodate art world norms. Copy- forms, the paradigmatic sale is from gallery Koons’s defense, essentially because Koons’s right imagines works of authorship as to collector. But which gallery, which col- work parodied the banality of society at expressive commodities, but contemporary lector, and why? That is the money question. large, rather than Rogers’s photograph in art prizes inscrutable unique objects. The particular.21 fair use doctrine asks judges to evaluate the The primary art market is notoriously justification for copying, but contemporary exclusive and opaque. Commercial busi- Koons was undeterred, probably because his art disdains normativity. Some scholars nesses sell products to consumers at market profits far exceeded his losses. But probably argue that copyright should ignore art, prices. Art galleries do not. At least, the also because he was cussedly determined because there is no market justification relevant ones do not. Commercial galler- to make his art his way. So he kept on for copyright protection.24 Yet, artists are ies sell works to all comers at more or less appropriating. Andrea Blanch created the among the most litigious copyright owners, fixed prices, but galleries that constitute the photograph Silk Sandals by Gucci, which despite their own proclivity to copy others. primary art market do not. On the contrary, was published as a Gucci ad in the August “Fair use for me, but not for thee” is the they put works on public display, with the 2000 issue of Allure. Soon afterward, Koons byline. implication those works are available for created the painting Niagara, a collage of purchase. But they do not provide prices images from many different sources, includ- THE LAW OF THE ART MARKET or offer to sell works to anyone but a select ing Blanch’s photo. In 2003, Blanch sued The “art market” is a euphemism for the few. The hoi polloi get the brush off. They Koons for copyright infringement. Koons rarefied market in fine art. Modern tech- can look at the art, but they can’t actually claimed fair use, and the court agreed, hold- nology enables the creation, reproduction, buy it, at any price.28 ing that his use of Blanch’s photograph was and distribution of art at a cost that asymp- transformative, because he used it to com- totically approaches zero. But the art Only certain insiders can actually purchase ment on society.22 market abjures reproductions, unless they works from the “market maker” galleries of the art market. And their degree of insider status determines their level of access and the price they must pay for any particular work. Often, galleries agree to sell especially desirable works subject to conditions. For example, a gallery may require a prospective buyer to purchase two works by the same artist and agree to donate one to a museum. Many of the sales on the primary art market occur at exclusive art fairs held in vacation destinations around the world. And many more are works never shown to the public at all.

Andrea Blanch, Silk Sandals by Gucci (2000) & Jeff Koons, Niagara (2000) The defining characteristic of the primary

BENCH & BAR | 9 THE WAIT IS OVER! ARTFeatures: LAW, COPYRIGHT & TRADEMARK See Page 22 for Convention Details

art market is confidentiality. Handshake The premise of an art fund is simple: buy consequence, art museums typically obtain deals are the norm. Written agreements low and sell high. The rationale is that the the vast majority of works in their collec- are rare, and rarely enforced. Transactions art market is uncorrelated with other mar- tion via donation, often as a bequest. are uniformly private and secret, unless the kets, so investors can use art investments buyer wants to make them public. And even to hedge against risk. And the advantage B. DEACCESSIONING then, only limited information is disclosed. is that investors can make a relatively “Deaccessioning” is the polite term for an Accordingly, it is impossible even to esti- small investment in a diversified portfolio art museum selling works from its collec- mate the size of the primary art market of high-value works, and avoid the costs tion. Art museums typically show about five with any degree of accuracy. And that is associated with actual ownership. percent of the works in their collection.30 precisely the way participants in the pri- The rest languishes in storage, imposing mary market want it to stay. Unfortunately, it is not clear that the art costs without generating revenue. Normally, market is actually uncorrelated with other charitable organizations sell non-perform- B. THE SECONDARY MARKET markets to any significant degree. And a ing assets. But art museums do not, at least The secondary market is the resale market diversification strategy may be incapable in part because they fear the consequences. for art, consisting primarily of public and of compensating for the disadvantages of private auctions, and private sales. More art funds relative to private investors, pri- Most art museums are members of the information is available about the sec- marily access and information. Art funds American Alliance of Museums (“AAM”), ondary market than the primary market, typically lack insider access to the primary and most art museum directors are mem- because the results of public auctions are market, where private investors make the bers of the Association of Art Museum publicly available. However, much of the largest profits. Art funds typically lack Directors (“AAMD”). The AAM and the secondary market remains opaque, as results insider information about which works are AAMD have both adopted deaccessioning of private auctions sales are rarely disclosed. available and attractive. In addition, private rules holding that museums can sell art only collectors can leverage tax advantages that in order to buy art, and that it is “unethi- Only a tiny fraction of works sold on the art funds cannot. Financial technology may cal” for museums to sell art for any other primary market have any meaningful value enable art funds to overcome these liabili- reason.31 But why? on the secondary market. And of that tiny ties, but the jury is still out. 29 fraction, the overwhelming majority are The AAM and AAMD claim that muse- works initially sold by market maker gal- THE LAW OF THE ART MUSEUM ums cannot sell art because they hold it leries. But for everyone other than primary Despite vast quantities of money changing in the “public trust.” That is both false and market insiders, investing in art on the pri- hands in these markets, the overwhelming inconsistent with their own rules. The mary market is tantamount to investing in majority of valuable works belong to art “public trust” doctrine provides that public lottery tickets. A vanishingly small number museums, which are almost uniformly entities cannot sell certain public assets of people do it successfully, but owe their charitable organizations dedicated to edu- to private parties.32 But art museums are success to luck, and little more. cating the public about art and culture. typically private charitable entities, so the Among other things, museums remove art they own is not a public asset, even Of course, the tiny fraction of works that works from the private art market into the though museums are obligated to benefit have a secondary market are often fantas- public sector. In many respects, they are the public, like any other charitable orga- tically valuable. And some collectors have natural complements. Museums enable the nization. Private parties buy and sell art all invested in art on the secondary market art market to manage supply and maintain the time. So can museums. very successfully. Just like in any other scarcity in the face of relatively inelastic market, the key to success is information demand, and the market subsidizes muse- Moreover, if museums hold art in the public and access. Both are at a premium. ums by providing them with both product trust, then they can’t sell it for any reason. and donors. Unsurprisingly, laws and norms But the AAM and AAMD rules explicitly C. ART INVESTMENT FUNDS governing art museums have developed in allow museums to sell art in order to buy An art investment fund is simply a fund light of their symbiotic relationship with art. Does this make sense? Either museums intended to generate a profit by investing the art market. hold art in the public trust or they don’t. in art. The idea has existed since the emer- How can their right to sell art depend on gence of the modern art market at the end A. CHARITABLE how they use the proceeds? of the 19th century. The first art fund was CONTRIBUTIONS La Peau de l’Ours, a syndicate created in In the 19th and early 20th centuries art Deaccessioning opponents often argue that 1904 by André Level, a Parisian art collec- museums could acquire notable works on museums own art subject to charitable trusts tor. In the 1970s, the British Rail Pension the primary and secondary markets. Today, that limit their ability to sell it. Sometimes, Fund invested £40 million in art. And since it is beyond the means of most art muse- they are right, especially about particular 2000, a number of art funds have solicited ums to purchase anything but minor works, works. But usually, they are wrong. Muse- investors. with the exception of museums funded and ums rarely form charitable trusts limiting controlled by autocratic governments. As a their right to sell art, and rarely accept

10 | MARCH/APRIL 2018 donations of art subject to gift restrictions. General chose to intervene with a brief property that has a special connection to a They also argue that collectors won’t making all of the conventional anti-deac- particular cultural group or country.36 donate art if museums can sell it. This is cessioning arguments. The court essentially implausible, because collectors have many ignored the Attorney General’s brief and Most countries claim ownership of some incentives to donate art, including income allowed the City to sell the collection to or all antiquities discovered at archaeolog- tax deduction, estate tax avoidance, and the DIA, a compromise solution that both ical sites within their borders as cultural prestige. Most collectors donate works generated assets the City could use to sat- property. Countries of origin use cultural museums want, and collectors who donate isfy its liabilities to its pensioners, and kept property laws to prevent both the theft of undesirable works rarely care what happens the collection in Detroit.33 their cultural heritage and the destruction to them. In any case, the rules allow muse- of archaeological data. And the Hague ums to sell works anyway, so long as they C. OPEN ACCESS ART Convention invokes cultural property in an buy more art. Art museums collectively own the over- effort to prevent the intentional or negli- whelming majority of the most important gent destruction of historic sites in wartime, Finally, they argue that deaccessioning rules works of art in existence. Many of those albeit with limited success.37 discipline a museum’s board of directors, works are in the public domain, and repro- by precluding it from relying on the muse- ductions should be made available to the But cultural property laws vary wildly um’s collection as a rainy day fund. But public to use as it sees fit. Even works still among countries. Some countries only deaccessioning rules ultimately punish protected by copyright should be made claim ownership of antiquities discovered only the museum, not the board of direc- available to the public, to the extent possi- on public land. Others claim ownership of tors. Deaccessioning rules do nothing to ble. But historically, many museums have all antiquities, no matter where they are prevent mismanagement while it is hap- restricted access to their collections, and discovered. And some extend the scope pening. They only prevent museums from limited the right to reproduce works in of their cultural property laws to include liquidating assets in order to remedy the their collections. works owned by private individuals, includ- consequences of mismanagement. Any ing artworks created relatively recently. For other charitable organization would be Courts have explicitly held that copyright example, many European countries restrict expected to terminate ineffective directors cannot protect photographic reproductions the sale or export of artworks located within and install a new board capable of preserv- of public domain works.34 Even so, many their borders, irrespective of the provenance ing the institution. Only art museums are museums prohibit visitors from taking or age of the work. Some countries even expected to just close up shop and parcel photographs of works in their collec- claim ownership of intangible cultural prac- out their assets to other museums. Surely a tions, and impose contractual limitations tices as “cultural heritage.”38 museum’s board of directors can and should on the right to use reproductions of those authorize the sale of part of its collection in works. In some cases, artists and collectors Museums typically run afoul of cultural order to preserve the institution. “We had have insisted on such restrictions as a gift property laws when they own or purchase to destroy the museum in order to save it” condition. In other cases, museums have antiquities with unclear or disputed cannot be the only answer. restricted access in the hope of creating a provenance. The international market in revenue stream through fees. antiquities consists substantially in looted In any case, the AAM and AAMD deac- works. While most countries have always cessioning rules are legally toothless. They However, in recent years, some museums prohibited the importation and sale of can complain about the kinds of deacces- have begun to take the opposite approach, stolen property, historically many did sioning they disapprove, but they can’t and focus on increasing digital access to not prohibit the importation of property actually stop it. At the end of the day, muse- their collections. For example, the Metro- in violation of another country’s export ums own their collections, and can dispose politan Museum of Art recently committed restrictions, facilitating the black market in of them as they wish, so long as they do to make reproductions of all of the public looted antiquities. The UNESCO Conven- so in the best interests of the institution. domain works in its collection freely avail- tion was intended to address this problem Indeed, a museum board arguably has a able to the public with no restrictions on by encouraging countries to prohibit the legal duty to deaccession works if necessary use.35 As charitable organizations, muse- importation of looted antiquities. to preserve the institution. ums have a legal duty to benefit the public. While there are many ways to satisfy that Scholars and policymakers disagree about Unfortunately, all too often state Attor- duty, adopting an open access approach to how to address the ongoing illicit trade in neys General are persuaded to intervene in collection management ensures both public antiquities. While most argue for more deaccessioning disputes, despite the lack of benefit and public support. rigorous enforcement of existing cultural legal justification. For example, when the property laws,39 some argue that existing City of Detroit filed for municipal bank- D. CULTURAL PROPERTY laws are ineffective and should be revised in ruptcy, creditors asked it to sell the Detroit While the term “cultural property” has light of their underlying purposes.40 How- Institute of Arts (“DIA”) collection, which different meanings in different contexts, ever, the illicit trade in looted antiquities was City property. The Michigan Attorney broadly speaking it refers to any form of continues, largely unabated.

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E. HOLOCAUST ART Seventy years after the end of the Second RESTITUTION World War, illegally acquired art contin- ABOUT THE AUTHOR Among its many other crimes, the Nazi ues to resurface, often through the efforts regime stole massive quantities of cultural of organizations like the Commission for 42 property from other countries and citi- Art Recovery and others. Perhaps most zens, including hundreds of thousands of notably, in 2012, German police discovered artworks. After WWII, the Allied forces 1,406 works in the Munich home of Cor- began the effort returning the stolen art- nelius Gurlitt, many of which were stolen. works to their rightful owners. Given the The collection included Old Masters as well quantity of works and difficulty of identi- as works by Claude Monet, Pierre-Auguste fying and locating the rightful owners, they Renoir, Henri Matisse, Franz Marc, Marc were not always successful. Many of these Chagall, Otto Dix, and Max Liebermann, BRIAN L. FRYE is Spears-Gilbert Associ- stolen works were eventually sold or given and many others. Some of the works have ate Professor of Law at the University of to museums, both in Europe and elsewhere. already been returned, but the provenance Kentucky College of Law, where he teaches 43 of many others is still being investigated. classes on intellectual property, copyright, Meanwhile, many important works are still nonprofit organizations, and professional missing, and many museums still resist responsibility. His scholarship focuses on 44 legitimate claims. legal issues affecting artists and arts organizations, among other things. He is also CONCLUSION a motion picture artist, whose works are Obviously, “art law” is not a unified body included in the collection of the Whitney of legal doctrine, but a syncretic collection Museum of American Art, and have been of legal rules and social practices governing exhibited widely. a wide range of different scenarios. Yet, it derives some degree of cross-disciplinary ENDNOTES commonality from the fact that it gov- 1. See, e.g., Brian Soucek, Aesthetic Judgment in erns situations involving the same people, Law, 69 Alabama Law Review 381 (2017). 2. 17 U.S.C. § 102(a). engaging with each other in familiar cir- 3. Feist Publications, Inc., v. Rural Telephone cumstances, through the lens of shared Service Co., 499 U.S. 340 (1991). General Eisenhower inspecting stolen art. social expectations. Artists, galleries, col- 4. See, e.g., Feist Publications, Inc., v. Rural lectors, and museums are all repeat players Telephone Service Co., 499 U.S. 340 (1991) (holding that copyright cannot protect a white in the same game, and all know how the pages telephone directory) and Star Athletica, game is played, or at least is supposed to LLC v. Varsity Brands, Inc., 136 S. Ct. 1823 be played. Their expectations shape not (2016) (holding, inter alia, that copyright only their transactions, but also how those cannot protect a shovel). 5. See, e.g., Bleistein v. Donaldson Lithographing transactions should be interpreted. Co., 188 U.S. 239 (1903). 6. See generally Brian L. Frye, Equitable Resale In other words, while studying “art law” Royalties, 24 Journal of Intellectual Property may not improve our understanding of “the Law 1 (2017). See also Guy A. Rub, The Unconvincing Case for Resale Royalties, 124 law” itself, it may improve our understand- Yale Law Journal Forum 1 (2014). ing of how people use the law, and what 7. California Resale Royalty Act (Civil Code they expect it to accomplish: the “law in section 986). action.” This is hardly a new observation, or 8. 17 U.S.C. § 109. 9. Sam Francis Foundation, Inc. v. Christie’s, 769 Hermann Goering’s collection of stolen art. one unique to art law. After all, it is equally F.3d 1195 (9th Cir. 2014). true of “the law of the horse.” But if we 10. The Berne Convention for the Protection of Gradually, the owners of stolen art and want to understand how the art world is Literary and Artistic Works, Article 6bis. both shaped by legal doctrine and shapes 11. Berne Convention Implementation Act of their heirs began to demand return of 1988, 102 Stat. 2853. Visual Artists Rights their property. This process escalated in legal doctrines to fit its needs, we cannot Act of 1990, 104 Stat. 5128. VARA defines the 1990s, as electronic databases and the simply observe particular trouble-cases and a “work of visual art” as a painting, drawing, 45 internet proliferated. For many Holocaust ask how they were decided. We must ask print, sculpture, or photograph, existing in how they function within the broader ecol- a single copy or in a limited edition of 200 survivors and their families, these claims copies or fewer. 17 U.S.C. § 101. vindicated not only their right to recover ogy of the art world, and how they were 12. 17 U.S.C. § 106A(a)(1). their stolen property, but also their claims accommodated. 13. 17 U.S.C. § 106A(a)(2) & (3). to justice and right to be heard.41 14. 17 U.S.C. § 106A(d). 15. See Isaac Kaplan, Cady Noland Sues Seeking Destruction of Artwork “Copy” She Disavowed, Artsy, Jul. 21, 2017 at https://

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www.artsy.net/article/artsy-editorial-cady-no- at http://www.artnews.com/2017/11/20/ al Protection of Cultural Property: Some land-sues-collector-galleries-destroy-art- vision-quest-berkshire-museum-will-stop- Skeptical Observations, 8 Chicago Journal of work-copy-disavowed nothing-sell-art-including-masterpiece-nor- International Law 213 (2007). 16. See, e.g., Mass. Museum of Contemporary Art man-rockwell/ 41. See, e.g., Jennifer Anglim Kreder, The Foundation v. Buchel, 593 F. 3d 38 (1st Cir. 34. Bridgeman Art Library v. Corel Corp., 36 F. Holocaust, Museum Ethics and Legalism, 2010). Supp. 2d 191 (S.D.N.Y. 1999). 18 Southern California Review of Law and 17. Kelley v. Chicago Park Dist., 635 F. 3d 290 (7th 35. Loic Tallon, Introducing Open Access at The Social Justice 1 (2008). Cir. 2011). Met, Metropolitan Museum of Art, Feb. 7, 42. See Commission for Art Recovery, http:// 18. See, e.g., Harper & Row, Publishers, Inc. v. Na- 2017, at https://www.metmuseum.org/blogs/ www.commartrecovery.org/ and http://www. tion Enterprises, 471 U.S. 539 (1985); Campbell digital-underground/2017/open-access-at- lootedart.com/ v. Acuff-Rose Music, 510 U.S. 569 (1994); and the-met 43. See, e.g., Phillip Oltermann, Picasso, Matisse Eldred v. Ashcroft, 537 U.S. 186 (2003). 36. The Convention for the Protection of Cultural and Dix among works found in Munich’s Nazi 19. 17 U.S.C. § 107. Property in the Event of Armed Conflict with art stash, The Guardian, Nov. 5, 2013. 20. See generally Brian L. Frye, Andy Warhol’s Regulations for the Execution of the Conven- 44. See, e.g., Jennifer Anglim Kreder, The New Pantry, 8 Akron Intellectual Property Journal tion (1954), Art. 1. Battleground of Museum Ethics and Holo- 17 (2014). 37. See, e.g., Erin L. Thompson, Legal and Ethical caust Era Claims: Technicalities Trumping 21. Rogers v. Koons, 960 F. 2d 301 (2d. Cir. 1992). Considerations for Digital Recreations of Justice or Responsible Stewardship for the 22. Blanch v. Koons, 467 F. 3d 244 (2d. Cir. 2006). Cultural Heritage, 20 Chap. L. Rev. 153, 176 Public Trust?, 88 Oregon Law Review 37 Ironically, Koons later threatened to sue an art (2017) (discussing responses to the destruction (2009). gallery for copying his balloon dog sculptures of historic sites by ISIS). 45. Cf. Karl N. Llewellyn & E. Adamson Hoebel, and selling the copies as bookends. See, e.g., 38. See, e.g., Manlio Frigo, Cultural property v. The Cheyenne Way: Conflict and Case Law Guy Adams, Jeff Koons bites back at ‘copies’ of cultural heritage: A “battle of concepts” in in Primitive Jurisprudence (1941) (introducing balloon dog, Independent, January 27, 2011. international law?, International Review of the the concept of “trouble-cases.” 23. Cariou v. Prince, 714 F. 3d 694 (2d. Cir. 2013). Red Cross No. 854 (2004). 24. See, e.g., Amy Adler, Fair Use and the Future of 39. See, e.g., Jeanette Greenfield, The Return of Art, 91 N.Y.U. L. Rev. 559 (2016). Cultural Treasures 257-61 (Cambridge 2d ed 25. See, e.g., Walter Benjamin, The Work of Art in 1996); Patrick J. O’Keefe, Trade in Antiqui- the Age of Mechanical Reproduction (1935). ties: Reducing Destruction and Theft 103-05 26. See TEFAF Art Market Report 2017, at (UNESCO 1997). https://www.tefaf.com/about/art-market-re- 40. See, e.g., Eric A. Posner, The Internation- port and Clare McAndrew, The Art Market (2017), at https://www.artbasel.com/about/ initiatives/the-art-market. 27. Tim Schneider, The Great Reframing: How Technology Will - and Won’t - Change the Gallery System Forever (2017). Do you have clients eligible to receive 28. See generally Tim Schneider, The Great Re- framing: How Technology Will - and Won’t - benefits under anERISA plan? Change the Gallery System Forever (2017). 29. See generally Brian L. Frye, New Art for the People: Art Funds & Financial Technology, 93 Chicago-Kent Law Review 113 (2017). We can help. 30. See, e.g., Christopher Groskopf, Museums are keeping a ton of the world’s most famous art Put our ERISA experience to work for your clients! locked away in storage, Quartz, Jan. 20, 2016, at https://qz.com/583354/why-is-so-much- of-the-worlds-great-art-in-storage/ ERISA 31. American Alliance of Museums, Code of • Long-term Disability Ethics for Museums (2000), available at http://www.aam-us.org/resources/ethics-stan- • Short-term Disability dards-and-best-practices/code-of-ethics; Association of Art Museum Directors Policy • Life/Accidental on Deaccessioning 2, June 9, 2010, available Death Insurance at https://aamd.org/sites/default/files/document/AAMD%20Policy%20on%20Deacces- Early representation is key, so call us today. sioning%20website.pdf 32. See generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970). See also Brian L. Frye, Art & the ‘Public Trust’ in Municipal Bankruptcy, 93 University of Detroit Mercy Law Review 629 (2016). 33. See Brian L. Frye, Art & the ‘Public Trust’ in Municipal Bankruptcy, 93 University of Detroit Mercy Law Review 629 (2016). See 800-249-3731 also generally Andrew Russeth, Vision Quest: 201 West Short Street, Suite 800 • Lexington, KY 40507 The Berkshire Museum Will Stop at Nothing to Sell Its Art, Including a Masterpiece by This is an advertisement Norman Rockwell, ArtNews, Nov. 20, 2017, Services may be performed by other lawyers

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opyright is a form of intellectual property protection provided to creators of “original works of authorship,” such as By: Will Montague Cbooks, artwork, music, and even computer programs. The law is based on Article I, § 8, clause 8 of the U.S. Constitution, which grants Congress the power “[t]o Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” The Copyright Act of 1976—its most recent iteration—is set out in Chapter 17 of the U.S. Code. Before the 1976 Act was the Copyright Act of 1909, itself preceded by two earlier versions beginning with the Copyright Act of 1790.

Prior to passage of the current Act, state common law of copyright protected unpublished works of authorship, while federal copyright b) In no case does copyright protection for an original work of law protected published works. Since Jan. 1, 1978, the effective date authorship extend to any idea, procedure, process, system, of the 1976 Act, federal law has preempted state copyright protec- method of operation, concept, principle, or discovery, regard- tion and established a uniform federal system for the protection of less of the form in which it is described, explained, illustrated, works of authorship. State law, however, may still control in some or embodied in such work. instances involving narrow categories of works, such as pre-1972 sound recordings. As Section 102 indicates, mere ideas, concepts, methods, and facts cannot beprotected by copyright; only original expressions of WHAT DOES COPYRIGHT LAW PROTECT? such things are protected. For example, absent some element of ori- Section 102 sets forth the Copyright Act’s primary scope: ginality in the selection, arrangement, or coordination of the facts, mere collections of facts are not protected by copyright. Likewise, a) Copyright protection subsists, in accordance with this title, in while the law will protect a particular expression of an idea or original works of authorship fixed in any tangible medium of concept, it will not protect the idea or concept itself. This is known expression, now known or later developed, from which they as copyright law’s “idea/expression” or “fact/expression” dichotomy. can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works Section 103 goes on to provide protection for original compilations of authorship include the following categories: (collections of preexisting works or otherwise unprotected data) 1) literary works; 5) pictorial, graphic, and and derivative works (such as movies based on books). Protection, sculptural works; however, extends only to the new contributions of the author, such 2) musical works, including as the selection and arrangement of materials in compilations or any accompanying words; 6) motion pictures the additional elements of a derivative work. and other audiovisual 3) dramatic works, including works; WHEN AND FOR HOW LONG any accompanying music; DOES A COPYRIGHT EXIST? 7) sound recordings; and 4) pantomimes and choreo- Under the current Copyright Act, protection exists from the graphic works; 8) architectural works. moment an original work of authorship is fixed in a tangible medium of expression (for example, written on paper or saved to

14 | MARCH/APRIL 2018 Copyright Law:

By: Will Montague

digital media). As is frequently the case, if an author creates a work over time in multiple iterations, copyright protects each iteration interest in the copyright, and each one can exercise copyright own- once fixed in a tangible medium of expression. On the other hand, ership rights without the permission of the other. The primary twist, if a work is not fixed in a tangible medium of expression—for exam- however, is that each joint author deriving profits from such right ple if a speech is given to a crowd, but not written or recorded—the must account to the other joint author(s) by sharing the profits. work is not protected by federal copyright. Ownership issues often arise when a work is created at the request Once a copyright springs into existence, it persists for the duration of a third party. Section 201(b) of the Copyright Act provides that of the author’s life plus a term of 70 years. Works made for hire the employer or person for whom a work is created is considered the and anonymous or pseudonymous works—works for which there author of a “work made for hire.” Works made for hire can arise in is no original author’s lifetime to use as a base—last for 95 years two mutually exclusive ways: when an employee creates a work for from publication or 120 years from creation, whichever expires first. his or her employer and when an independent contractor creates a work under a valid work for hire agreement. Neither scenario, WHO OWNS THE COPYRIGHT IN A WORK? however, is quite as simple as it may seem. The copyright in a work of authorship immediately becomes the property of the “author” (a term of art in copyright law meaning To constitute a work for hire in the employment context, the creator of the work). Only the author or someone deriving rights work must be prepared by an employee acting within the scope through the author may rightfully claim copyright ownership. It of employment. In Community for Creative Non-Violence v. Reid, is also common for multiple authors to collaborate on a work. In 490 U.S. 730, 742-43 (1989), the Supreme Court of the United such cases, “joint authorship”—and therefore joint ownership of the States held that whether the author is an employee or indepen- resulting copyright—exists if each author intended to contribute dent contractor under the work for hire doctrine is determined by copyrightable expression to the unitary whole that comprises the traditional principles of agency law, which are also used to make copyrightable subject matter. Joint authors share an equal, undivided the distinction in other contexts.

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Works made for hire outside the employment context, on the other work, to the Copyright Office. More detailed information is avail- hand, must satisfy two requirements to be valid. First, the work must able from http://www.copyright.gov. be the subject of a work for hire agreement signed by both parties. Second, the work must fall within one of nine enumerated work While not required, there are critical advantages to registering for hire categories set out in Section 101 of the Copyright Act: one’s copyright. First, registration is required to bring suit for 1) a contribution to a 5) a compilation; infringement in federal court (which has exclusive jurisdiction over collective work; copyright cases). Second, registration prior to or within five years of 6) an instructional text; first publication constitutes prima facie evidence of validity. Finally, 2) a part of a motion 7) a test; and perhaps most importantly, a copyright plaintiff may recover picture or other statutory damages and attorney fees—two of a plaintiff ’s most for- audiovisual work; 8) answer material midable weapons—only if registration is made within three months for a test; or 3) a translation; of first publication of the work or prior to the defendant’s first act of infringement. This last advantage is often determinative of whether 9) an atlas. 4) a supplementary work; it makes financial sense to pursue an infringer. WHAT ARE THE EXCLUSIVE RIGHTS Because the categories are generally narrow ones, most types of OF A COPYRIGHT “OWNER”? works fall outside them. As a result, many intended “work for hire” agreements are ineffective in creating a valid work made for hire, The rights granted to a copyright owner are substantial. Subject to and the copyright remains the property of the creator. certain limitations, the owner has exclusive rights to reproduce, distribute, publicly perform, and publicly display the protected work, Absent a valid work made for hire arrangement, there are other ways as well as the exclusive right to prepare derivative works based on an author’s copyright ownership may be transferred to a third party. the work. Copyright is personal property subject to the various state laws and regulations that govern the ownership, inheritance, or transfer These exclusive rights, however, are subject to a number of statu- of personal property. The exclusive rights of a copyright owner (or tory limitations set out in the Copyright Act. Two important and any subset of those rights) may be transferred to someone else. The well-known limitations are the “fair use” and “first sale” doctrines. transfer is not valid, however, unless it is in writing and signed by Section 107 states that the “fair use” of a copyrighted work for the owner of the rights conveyed. On the other hand, non-exclusive purposes such as criticism, comment, news reporting, teaching, transfers and permissions (such as a nonexclusive license), may be and research is not an infringing act. However, the statute does not oral or even implied. define what comprises “fair use,” leaving courts to resolve the issue case-by-case basis. The statute does state that four factors should WHAT COPYRIGHT FORMALITIES STILL EXIST? be used in determining fair use: Chapter 4 of the Copyright Act governs notice and registration— (1) the purpose and charac- (3) the amount and substanti- two of the most commonly known formalities. Under current law, ter of the use, including ality of the portion used in neither notice of copyright nor registration with the U.S. Copyright whether such use is of a relation to the copyrighted Office is required for protection. However both can confer certain commercial nature or is work as a whole; and advantages, especially in litigation. for nonprofit educational purposes; (4) the effect of the use upon Copyright notice typically contains either the word “Copyright” or the potential market for or the copyright symbol ©, followed by the year of first publication and (2) the nature of the value of the copyrighted the name of the author (e.g., © 2018 John Smith). The advantages copyrighted work; work. of providing copyright notice is that notice informs the public that the work is protected by copyright, identifies the author and The subjective nature of the factors, however, means that they do year of first publication, and lessens a defendant’s ability to claim not lend themselves to ready predictability. One usually knows with innocent infringer status. certainty whether something is “fair use” only at the end of costly litigation. In Harper & Row Publishers, Inc. v. Nation Enterprises, Earlier versions of the Copyright Act required that notice be placed 471 U.S. 539, 566 (1985), the Supreme Court said that the fourth on a work when published. Works published prior to Jan. 1, 1978, enumerated factor, the effect of the defendant’s use of the infring- entered the public domain if no notice was attached, and works ing work on the potential market for the copyrighted work, is the published between Jan. 1, 1978, and March 1, 1989, were subject most important factor. However, the four factors are, by the plain to a notice requirement that could be cured if initially omitted. wording of the statute, non-exclusive, and the Supreme Court has The copyright status of those works remains governed by the law made clear that none of the factors should be viewed in isolation. in effect at the time they were first published. As such, while notice See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994). is no longer required, it remains a critical issue for pre-1989 works. Registration of a copyright is accomplished by submission of the One of the most well-known forms of fair use is parody. Calling proper form and filing fee, along with a deposit of the copyrighted something a parody, or the mere fact that a work may make light

16 | MARCH/APRIL 2018 of something, does not necessarily mean that it is fair use. To con- As with most intellectual property infringement actions, an stitute “fair use parody,” the new work must be viewed by a court injunction to halt future infringing uses is a common remedy for a as a commentary on the original work, rather than a substitute for successful copyright plaintiff. In addition, a copyright owner may the original work or commentary on some other topic. recover actual damages and any additional profits made by the infringer. In doing so, the plaintiff need only show defendant’s gross Another significant form of fair use is reverse engineering of revenue resulting from the infringement, leaving it to the defendant computer software. Courts have held that reverse engineer- to prove appropriate deductions attributable to expenses or profit ing (or “decompiling”) software from an executable program to that resulted from something other than the infringement. human-readable source code, in which a copy of the software program is necessarily made, can be a fair use. The reverse engi- Because actual damages in copyright cases often are difficult to neering practice at issue must be the only means of gaining access show, and the defendant’s profits are frequently minimal, plain- to non-copyrighted aspects of the program, and the defendant must tiffs commonly elect to recover statutory damages and attorney have had a legitimate interest in gaining access to those aspects. fees instead. To do so, however, the plaintiff must have registered the infringed work prior to the time the defendant infringed the Section 109 codifies the so-called “first sale” doctrine. This limita- work. For each infringed work, the plaintiff may recover statutory tion allows the owner of a particular copy of a copyrighted work to damages up to $30,000 for non-willful infringement, and up to sell or otherwise dispose of that particular copy without violating $150,000 per infringed work in the case of willful infringement. copyright law. The copyright owner has the right to control the Those potential recoveries, coupled with the threat of attorney fees, initial sale of the copy, but after that sale is completed, its rights often prove much more successful in bringing the defendant to the in that particular copy are extinguished and the new owner may bargaining table prior to trial. transfer the copy to someone else. Importantly, the first sale doctrine has no effect on the underlying copyright; the doctrine only applies A successful copyright plaintiff also may obtain destruction or other to individual copies embodying the copyright. appropriate disposition of the infringing materials, as well as items by means of which additional infringing copies can be made. WHAT ABOUT INFRINGEMENT? As noted above, federal courts have exclusive jurisdiction over copy- In addition to civil remedies, the Copyright Act provides criminal right infringement suits, and a prerequisite to filing such a suit in liability for certain forms of willful infringement. Possible pun- federal court is that the allegedly infringed work must be registered. ishments include fines and imprisonment for terms of one to 10 The work need not be registered at the time of infringement – a years, depending on the nature of the offense and the number of potential plaintiff may seek registration by the Copyright Office prior convictions. and then file suit. ABOUT THE AUTHOR Once jurisdiction is established, a plaintiff alleging infringement WILL MONTAGUE practices with must prove two primary elements: (1) ownership of a valid copy- Montague Law PLLC in Lexington. right, and (2) copying by the defendant of constituent elements of Montague and the firm’s other attorneys the work that are original. In the absence of direct evidence, the have decades of experience representing plaintiff frequently proves copying by showing that the defendant businesses and individuals in virtually all or the person who composed the defendant’s work had access to the areas of intellectual property law, busi- copyrighted material and that the defendant’s work is “substantially ness and corporate law, technology law, similar” to the protected work based on the “ordinary observer test.” and entertainment law. A former equity A plaintiff bears the burden of proving that an ordinary observer partner at two of the region’s largest law firms, Montague is would find substantial similarity between protected material and rated AV-Preeminent by Martindale-Hubbell®, and is listed in the allegedly infringing work. Super Lawyers® as a Top Rated Intellectual Property Attorney. In addition to direct infringement, the plaintiff may assert that a defendant is secondarily liable for the infringement of others. Prior to 2005, secondary liability existed under the separate doctrines of contributory or vicari- ous infringement. In 2005, the Supreme Court in Metro-Goldwyn-Mayer Studios v. Grokster, adopted How the Newly Enacted ‘Defend a theory of active inducement whereby anyone Bench & Bar who actively induces another to infringe is liable Trade Secrets Act’ has Changed for secondary copyright infringement. Second- the Landscape of Trade Secret Law ary infringement liability will not be found under any theory, however, absent direct infringement BY ELISABETH S. GRAY by a third party. A plaintiff relying on a theory of This article has been placed on the secondary liability must also prove direct infringement by someone other than the defendant. KBA website under the Hot Topics page. BENCH & BAR | 17 ARTFeatures: LAW, COPYRIGHT & TRADEMARK THE FUNDAMENTALS OF Protecting Your Client’s Brand: FEDERAL TRADEMARK REGISTRATION BY: TED HOULEHAN

rademark is an area of law that clients symbols, a graphical design, or some combi- 3 The right to sue for infringe- typically have some notion about. nation thereof. The source itself is typically ment in federal court. Should TThey are starting or have started a a company that has placed the good or ser- infringement be found, this business, would like to protect their invest- vice in commerce and wishes to distinguish provides firm backing to force ment in branding, and may have been told its product or service from competitors.1 the infringer to cease and de- by their logo designer, Amazon, or someone sist. else that trademark registration is how to It is a bit easier to define “trademark” by secure that protection. noting types of items that are commonly 4 The right to use the federal filed as trademarks. Brand names, prod- registration symbol ® next to The internet has made it possible for uct lines, product or service names, brand the trademark. Clients typical- individuals to start and operate their own slogans, product or service slogans, brand ly enjoy displaying this symbol small businesses, and for consumers to logos, and product or service logos are in connection with their regis- purchase products and services originat- probably the most common, though the tered goods or services. ing from outside their local area. These federal trademark office also allows more In the absence of such registration, the expanded opportunities make branding obscure matter to be protected including more important now than ever. short videos and sounds.2 client will only have the right to use their trademark within the limited geographi- DO I NEED A TRADEMARK? cal area in which its goods or services are Clients are incredibly enthusiastic about 4 their branding, but understandably care Some degree of common law rights attach sold. This might have had some practical little about filing particulars. A trademark to trademarks that have been used in com- significance decades ago, when almost every attorney’s role is to understand the client’s merce, irrespective of registration. While it business had a physical location and competitors were only those businesses within branding and translate the details into a is important to know this as an academic trademark application that will provide point, the benefits a client might want from driving distance. Now, many businesses broad and accurate protection. a trademark are only available through are transient or web-based, offering goods registration:3 shipped to the customer’s doorstep or ser- If your practice includes any element of vices rendered online. Because a company, A legal presumption of exclu- business law, you will likely receive occa- 1 product, or service name can be Googled, sive ownership of and right to sional inquiry about trademarks. The it becomes very important to carve out that use the trademark nationwide. following are questions clients commonly unique space online via nationwide registration. This offers legal protection against ask and the basic background information Public notice of the client’s 2 competitors who might turn up for the needed to answer such questions. claim of ownership of the mark same identifying search terms and steer via listing in the United States WHAT IS A TRADEMARK, business away from your client. Patent and Trademark Office’s EXACTLY? (USPTO) online, searchable WHEN CAN I FILE? A trademark is an indication of source. It database. This typically deters The trademark law is designed to promote is something that identifies the origin of the other would-be competitors business by offering reasonable protection good or service upon which it is affixed or from adopting and filing sim- for one’s branding. To this end, a trade- advertised. That something might be a few ilar trademarks. letters, a word, several words, numbers, mark only protects goods or services that

18 | MARCH/APRIL 2018 THE FUNDAMENTALS OF

authorization in the form of a “Notice of Protecting Your Allowance,” giving the applicant an additional six months to prove it has placed the Client’s Brand: trademark in commerce. The Intent-To-Use application therefore FEDERAL TRADEMARK REGISTRATION gives a client who has not begun sales an BY: TED HOULEHAN opportunity to protect its intended branding. However, it requires an additional filing called a “Statement of Use,” which carries another filing fee and must be submitted by the USPTO deadline.7 For these reasons, a standard “Use in Commerce” application is preferable. Typically, however, clients request trademark filing after their company name has been secured and their logo designed, but before the trademark has been used in such a way allowing for immediate Use in Commerce filing. If a competitor might develop the same or similar branding while your client works to put its trademark in use, you should rec- ommend an “Intent-To-Use” application to secure rights immediately, despite the added cost. WHAT SHOULD I FILE? Once you have convinced your client that a trademark filing would be beneficial to secure his or her investment in branding, you need to confirm the precise trademark(s) to be filed and the goods/services covered by such trademark(s). This is because trademark protection will extend to the mark itself and anything similar that causes a “likelihood of confusion” in the typical consumer, as against the same are being used in commerce, which allows While this makes sense when viewing com- or related goods or services. other commercial entrants to develop their merce as a whole, this typically confuses own branding unimpeded. According to individual business owners, who wonder The typical client will present you with the USPTO:5 how they might develop branding to the a name or graphic and say, “Trademark point of actually selling the product in this.” Others might present multiple dif- A mark is in use in commerce with question if they have not yet been able to ferent product names, slogan ideas, logo “goods when (1) the mark is placed protect themselves via trademark filing. alternatives, etc. and ask for your advice on on the goods, packaging for the what registration applications should be goods, or point-of-sale displays The trademark law offers a filing alterna- filed, or even on their branding generally. associated with the goods (includ- tive which allows an applicant to file upon In either case, you need to learn a bit about ing webpage displays), and (2) the conception and prior to actual use, via its the client’s business to properly advise what goods are actually being sold or “Intent-To-Use” application. With such elements of the business are most signifi- transported in commerce. A mark application, the trademark office reviews cant for legal protection. is in use in commerce with ser- the submission to see if it qualifies to reg- vices when (1) the mark is used in ister as “trademarkable subject matter” and Once the most critical trademark or trade- the sale, advertising, or rendering checks the application against existing reg- marks are identified, you need to determine of the services, and (2) the ser- istrations that might cause a “likelihood of the goods or services to which such trade- vices are actually being rendered in confusion.”6 If these tests are passed, the marks apply, both to search against existing commerce.” trademark office provides a preliminary trademarks that would block your intended BENCH & BAR | 19 THE WAIT IS OVER! ARTFeatures: LAW, COPYRIGHT & TRADEMARK See Page 22 for Convention Details

registration and to prepare for the regis- that must be addressed, causing a slight 2 ORNAMENTATION. You can- tration filing itself. While the USPTO delay in ultimate registration. not trademark an item that allows for “free form” entry of goods or primarily serves a decorative service categories covered by a trademark, Finally, it is important to note that the function (Example: logo on a this could pose a problem if the entry is not federal trademark registration system is t-shirt that appears to be part of described with the specificity that would in fact a “first to use” system, but one that the t-shirt’s design, rather than allow likelihood of confusion to be deter- provides advantages to those who file early. designating a brand origin). mined against other filings. The USPTO The application filing date provides con- SURNAME. lists its recognized goods and services list- structive use of the mark and establishes 3 You cannot trade- ing in its “ID Manual,” and precise listings nationwide priority over others who might mark someone’s last name from that database should be used when- begin use after that date.11 The only caveat (again, at least not without a ever possible.8 is that it is possible for a competitor to file showing of “secondary mean- for registration several months or years ing” that the trademark has an Each individual goods and services listing after putting its own trademark in use, and established meaning in the rel- is found in one of 45 trademark “classes” alleges its “use” date was before your client’s evant industry). which are, broadly speaking, categories use or filing date. Though rare, this possi- The most common reason a filing does of goods or services.9 A single trademark bility cannot be avoided, because you have not turn into a registration is a “likelihood can span multiple classes if it is affixed to no control over whether or when a third of confusion” with an existing registered several different types of products. Trade- party will demonstrate its use via federal trademark. The entire premise of trademark mark filing fees of at least $225 are paid per application. Fortunately, the system places protection is to secure exclusive rights to trademark, per class. Clients will frequently such a lackadaisical competitor at the dis- the trademarked matter as filed as against request registration across goods or services advantage of having to prove earlier use to anyone who might subsequently use a “con- that span multiple classes, so you should secure its own trademark rights and curtail fusingly similar” trademark. For this reason, be prepared to offer class suggestions that or cancel those of your client. Accordingly, it is critical to conduct a proper search of take into consideration filing costs and your client should feel some sense of secu- the federal trademark database prior to most properly identify the goods or services rity upon the date of filing, irrespective of filing to ensure the client’s trademark is covered by the trademark. how long it takes the USPTO to ultimately available for registration. issue registration, so long as the application WHEN WILL I GET ultimately results in registration. The USPTO makes its trademark database THE TRADEMARK? searchable online,13 and given our famil- Clients are often anxious to know whether ANY CHANCE I DO NOT iarity with Google, clients often make use and when their trademark application GET THE TRADEMARK? of such database to let you know, “No one has been approved. For a standard Use in Any experienced lawyer knows the value of has my trademark.” While the presence of Commerce application, it typically takes properly setting clients’ expectations. You conflicting trademarks means registration about nine months from the date of filing should properly advise if there are concerns is likely foreclosed, the absence of conflict- until the date of registration. This time with the trademark the client wants filed ing marks upon initial inquiry does not is extended if there are certain flaws or that might delay or prevent ultimate reg- mean registration is available. What con- uncertainties in the application, causing istration. The following are some common stitutes “likelihood of confusion” is a topic the USPTO examiner to issue an “Office filing pitfalls. that cannot be addressed in a trademark Action,” requesting further information or overview, but suffice it to say the USPTO amendment before the application may The first common consideration is whether examiners are inclined to presume the aver- move forward to possible registration.10 the trademark the client wants filed is age consumer is readily confused, meaning “trademarkable subject matter,” meaning your search must be very comprehensive. Ideally, communication with the client the matter itself is capable of registration. A trademark attorney needs to develop a allows you to avoid any potential Office The Trademark Act lists several forms of search approach akin to that taken by the Actions. However, some Office Actions content that are not legally entitled to examiners, which is informed by case law cannot be avoided given the informa- trademark protection.12 Of key concern: and considers the industry in which the tion the client has available at the time trademark is being filed. Third party ser- USPTO filing is appropriate. It is import- 1 MERELY DESCRIPTIVE. So as vices can be purchased to search additional ant to file for trademark protection as soon not to foreclose opportunities databases and give your client greater peace “use” occurs to establish rights against any for others, you cannot trade- of mind before filing, but keep in mind no other would-be registrant. A savvy trademark words that are descrip- search is infallible. Various search meth- mark attorney therefore files as soon as tive (or generic) for products ods, including those conducted by the filing information is available that would allow or services to which they relate attorney, should be seen as providing a con- registration to ultimately issue, even if it (at least not without a showing fidence interval-type estimate of trademark means the USPTO issues an Office Action of “secondary meaning,” a sep- availability, rather than absolute assurance. arate analysis).

20 | MARCH/APRIL 2018 A final common concern is that the client CONCLUSION broadly but accurately describes the goods Clients do not care about legal filing partic- ENDNOTES or services upon which the trademark is ulars but want the legal protection afforded 1. In popular use, “trademark” typically connotes both that which protects goods (correctly being associated (which you translate into by federal trademark registration, a highly identified as a “trademark”) and services goods or service listings approved in the ID technical procedure. If the client has a (which is properly called a “servicemark”). For Manual). The goods and services form the unique brand, product, or service identi- purposes of this article, I stick with convention basis of the protection the trademark will fier, you should ensure the client files for and call all “marks” simply “trademarks,” even if they might apply to services. receive, so the more listings you include, the a federal trademark. However, you need 2. United States Patent and Trademark Office, broader the protection. However, inclusion to balance the competing desire to get the Trademark Manual of Examining Procedure of inapplicable listings is grounds for refusal trademark filed as soon as possible with the § 904.03, https://tmep.uspto.gov/RDMS/ of the registration application or subse- diligence needed to ensure registration ulti- TMEP/current#/current/TMEP-900d1e636. html (last visited January 30, 2018). quent cancellation. Inclusion of superfluous mately issues that broadly and accurately 3. United States Patent and Trademark Office. goods or services listings is a very common protects your client’s branding. Protecting Your Trademark: Enhancing Your basis by which competitors challenge trade- Rights Through Federal Registration, https:// mark registrations and can invalidate the www.uspto.gov/sites/default/files/documents/ BasicFacts.pdf (last visited January 30, 2018). trademark as a whole. See also The Lanham Act (commonly known ABOUT THE AUTHOR as the “Trademark Act” or “trademark law”), TED HOULEHAN 15 U.S.C. Chapter 22. is an attorney at Wolfe & Houlehan PLLC. 4. State trademark registrations are also available, He received his undergraduate degree from Emory University, but they similarly provide rights that are limit- his law degree from the University of Kentucky College of Law, ed geographically. See, e.g., Kentucky Secretary and his master’s degree from the University of Kentucky Pat- of State, Trademarks and Service Marks, http://apps.sos.ky.gov/business/trademarks/ terson School of Diplomacy and International Commerce. His (last visited January 30, 2018). business law practice includes for-profit and non-profit startup 5. United States Patent and Trademark Office, filings, contract review and drafting, alcoholic beverage licenses, Trademark Applications–intent-to-use and other matters. His trademark and branding practice con- (ITU) Basis, https://www.uspto.gov/trademarks-application-process/filing-online/insists of registration applications, renewal filings, assignment and tent-use-itu-applications (last visited January licensing agreements, and infringement and ownership disputes. 30, 2018). 6. United States Patent and Trademark Office, Likelihood of Confusion, http://tess2.uspto. gov/webaka/html/Likelihood/Likelihood_of_ Confusion.html (last visited January 30, 2018). 7. Because it takes the USPTO several months to evaluate the ITU application before it issues a Notice of Allowance, the client should expect to have to have placed his or her trademark in commerce within approximately one year. 8. United States Patent and Trademark Office, Trademark ID Manual, https://tmidm.uspto. gov/id-master-list-public.html (last visited January 30, 2018). 9. United States Patent and Trademark Office, Nice Agreement Tenth Edition – General Remarks, Class Headings and Explanatory Notes, https://www.uspto.gov/trademark/ trademark-updates-and-announcements/nice- agreement-tenth-edition-general-remarks- class (last visited January 30, 2018). 10. Other issues, such as opposition by another party, may delay the application further. See, United States Patent and Trademark Office, “Trademark Application and Post-Registra- tion Process Timelines,” https://www.uspto. gov/trademark/trademark-timelines/trademark-application-and-post-registration-process-timelines (last visited January 30, 2018). 11. United States Patent and Trademark Office, Trademark Manual of Examining Procedure § 201.02, https://tmep.uspto.gov/RDMS/ TMEP/current#/current/TMEP-200d1e1. html (last visited January 30, 2018). 12. 15 U.S.C. § 1052. 13. United States Patent and Trademark Office, Trademark Electronic Search System (TESS), tess2.uspto.gov/ (last accessed February 2, 2018).

BENCH & BAR | 21

Dear Colleagues: It is my pleasure to invite you to attend the 2018 To close out the convention, civil rights attorney Kentucky Bar Association Annual Convention Lisa Bloom, known for representing women whose to be held at the Lexington Convention Center sexual harassment claims precipitated the firing in downtown Lexington, Wednesday through of Bill O’Reilly from Fox News, will discuss the Friday, June 13-15. Our annual convention #MeToo movement and its legal implications. The offers every member a chance to reconnect convention will include numerous other sessions and network with colleagues from across the covering a wide variety of topic areas important state, complete their annual CLE requirement to all attorneys. and enjoy numerous social events. There are many social events available to We have secured an exceptional lineup of attendees during the three-day event. Make sure feature and spotlight speakers. Wednesday’s to attend our kick-off event, which will be held feature speaker is John Douglas, the FBI Investi- at Limestone Hall, At The Historic Courthouse, on gative Support Unit founder and inspiration Wednesday afternoon and the annual banquet, for the character Holden Ford in Netflix’s scheduled for Thursday evening, which will "Mindhunter", who will take attendees behind feature the University of Kentucky Acoustikats. the television screen for a real-life look at the investigative techniques used for hunting serial I look forward to welcoming you to killers, sex offenders and other violent offenders. Lexington this summer, as we focus on Producer Amy Ziering will join thereafter to our profession and what it means to discuss her documentary "The Hunting Ground." be, “More Than a Lawyer.”

On Thursday, June 14, Oscar-winning screenwriter and New York Times best-selling Sincerely, author Graham Moore will speak. Moore won the 2015 Oscar for Best Adapted Screenplay for "The Imitation Game" and his latest best- selling novel The Last Days of Night, which Bill Garmer, President looks at the battle between Thomas Edison and Kentucky Bar Association George Westinghouse over the lightbulb patent, will be in movie theaters soon.

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION \\ 2 Convention Planning Committee Shaye Page Johnson Megan P. Keane Judge Lucinda Masterton CLE Planning Committee Eileen M. O’Brien Judge Mary Jane Phelps Robert L. Elliott Carroll M. “Trip” Redford III Judge Sheila R. Isaac Committee Chair Christopher M. Rhoads CLE Programming Chair Judge Sheila R. Isaac Marcia Milby Ridings Judge Glenn E. Acree Judge Glenn E. Acree Thomas L. Rouse Mindy G. Barfield Mindy G. Barfield Katie A. Shepherd Daniel T. Goyette Rhonda J. Blackburn Liz J. Shepherd Megan P. Keane Bruce K. Davis Justice Laurance B. VanMeter Katie A. Shepherd William R. Garmer Lucy A. VanMeter Justice Laurance B. VanMeter Judge Julie M. Goodman Judge Gregory F. Van Tatenhove Lucy A. VanMeter Daniel T. Goyette Justice Daniel J. Venters Judge Gregory F. Van Tatenhove Marshall R. Hixson Judge John F. Vincent Judge Robert G. Johnson Palmer G. Vance II

5-7 8 Contents Main Events Public Service Project 9-11 12-15 16-18 19-20 Wednesday Thursday Friday Registration & CLE Sessions CLE Sessions CLE Sessions Hotel Information

KBA BOARD OF GOVERNORS PRESIDENT: CHAIR, YOUNG LAWYERS DIVISION: 3RD DISTRICT: 6TH DISTRICT: William R. Garmer Lexington Eric M. Weihe Louisville Melinda G. Dalton Somerset Todd V. McMurtry Ft. Mitchell Howard O. Mann Corbin Gary J. Sergent Covington PRESIDENT-ELECT: 1ST DISTRICT: Douglas C. Ballantine Louisville W. Fletcher Schrock Paducah 4TH DISTRICT: 7TH DISTRICT: Van F. Sims Paducah Amy D. Cubbage Louisville Rhonda J. Blackburn Pikeville VICE PRESIDENT: Bobby Simpson Louisville ND Judge John F. Vincent, Ashland J. Stephen Smith Ft. Mitchell 2 DISTRICT: Thomas N. Kerrick Bowling Green 5TH DISTRICT: IMMEDIATE PAST PRESIDENT: J. D. Meyer Owensboro Mindy G. Barfield Lexington R. Michael Sullivan Owensboro Eileen M. O’Brien Lexington

3 \\ 2018 KBA ANNUAL CONVENTION \\ MORE THAN A LAWYER Platinum Sponsors

Kick-Off Event Sponsor

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Convention App Sponsor Other Sponsors Supreme Court of Kentucky Access to Justice Commission Executive Branch Ethics Commission Goldberg Simpson, LLC KBA Animal Law Section KBA Alternative Dispute Resolution Section Specialty Break Sponsor KBA Business Law Section KBA Criminal Law Section KBA Elder Law Section KBA Ethics Committee KBA Family Law Section KBA Health Care Law Section KBA Labor & Employment Law Section KBA Military Law Committee KBA Public Interest Law Section A special KBA Young Lawyers Division Kentucky Lawyer Assistance Program Thank You Kentucky Legislative Ethics Commission to these convention sponsors!

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 4 Tuesday, June 12 Wednesday, June 13

Memorial Service 3:30-4:30p.m. Kick-Off Event 4:45-6:45p.m. Christ Church Cathedral Limestone Hall, At The Historic Courthouse 166 Market Street, Lexington 215 West Main Street, Fourth Floor The Kentucky Bar Association will celebrate the lives and Complimentary with registration legacies of those KBA members who have passed since Pre-registration required June 1, 2017, during its 27th Annual Memorial Service. Sponsor: Members of the planning committee encourage members who are arriving in town just prior to the convention, and those who are situated locally, to participate in this Join us at Limestone Hall, At The Historic Courthouse, in beautiful, ecumenical service held in honor of our fellow the heart of downtown for an evening of fun and laughter Kentucky attorneys who have passed. The dignity of as you dine on food provided by Napa Prime and visit the event will be underscored by the Supreme Court of with colleagues. This venue is the home of the Old Fayette Kentucky dressed in their robes. Additional members of County Courthouse that has been renovated into Lexington’s the judiciary have also been invited to participate. The newest event space. Make plans now to come see the venue service will feature various musical selections and will be restored to its original beauty and elegance. led by representatives from different faiths. Family members of the deceased will receive personal invitations, but all The law school alumni receptions will be held at the conclu- KBA members are encouraged to attend. sion of our kick-off event. Please join your fellow classmates for these special receptions. The following members will be fondly remembered: Michael L. Allen Philip Watson Linder Ohio Northern University Pettit College of Law Dave Armstrong Brian Ulrich Loncar James Banahan William A. “Mac” Mackenzie, Jr. Alumni Reception 7:00p.m. Robert L. Bertram Calvin N. Manis Hyatt Regency Hotel Bonnie Kay Biemer Samuel Manly IV Please contact Jennifer Grismore at Robert J. Bohnert Stephen A. McCoy (419) 772-2205 for additional information. Charles R. Burton Thomas Blake Merrill Christian John Camenisch II John Paul Moore NKU Chase College of Law James Peter Cassidy, Jr. Michael Q. Murray Alumni Reception 6:30p.m. Raymond Clooney Thomas E. O’Shaughnessy Hyatt Regency Hotel Lloyd R. Cress John S. Palmore, Jr. Please contact Jeannine Abukhater Lambert at Benjamin C. Cubbage, Jr. Amanda B. Perkins (859) 572-6403 for additional information. Joseph Davis Bryan C. Pierce Neal Henry Dockal, Jr. William Franklin Polk, Jr. University of Kentucky College of Law Carrie Gibson Donald Donald Thomas Prather Dr. David Read Driscoll, Jr. Henry C. Prewitt, Sr. Alumni Reception 6:30p.m. Richard J. FitzGerald Timothy Dewayne Price Hyatt Regency Hotel William E. “Bill” Fletcher Henry M. “Hank” Reed II Free for Law Alumni Association Members Scott Thomas Foster Robert Leslie Rosenbaum $10 for all others Larry Bruce Franklin Jack Edward Ruck Please contact Alyssa Thornton at William R. Fry Stanley Albert Searcy (859) 257-7938 for additional information. Jenna Ray Glasscock Sharon Shaw-Dyer Fred D. Hatmaker Raymond Lindy Shelton University of Louisville, Louis D. Brandeis School Nancy T. Hoagland Harry M. Snyder, Jr. of Law Alumni Reception 6:30 p.m. Elmer L. Hoehn Stewart R. Spalding Bingham Greenebaum Doll, LLP Ted Igleheart Millicent Ann Tanner 300 West Vine Street Suite 1200, Lexington William Claiborne Jacobs Leonard W. Taylor III Please contact Aaron Marcus at E. Louis Johnson Robert Anthony Thomas Russel C. Jones David J. Thompson, Jr. (502) 407-7486 for additional information. Brian Thomas Judy Winfred Moten “Mote” Thompson, Jr. David Justice Frank O. Trusty II University of Cincinnati College of Law Charles Randy Keeton Lisa E. Underwood Alumni Reception 7:00p.m. Amy Taylor Broecker Kessler William Allen Watson Hyatt Regency Hotel Eleanor H. Leonard Donald Leslie White Please contact Mindy Roy at Paul M. Lewis Eugene Wiggins, Jr. (513) 556-0244 for additional information. Barbara Buchanan Lewis Shown are memoriams at the time of printing. 5 2018 KBA ANNUAL CONVENTION MORE THAN A LAWYER Thursday, June 14

Young Lawyers 12:00-1:30p.m. Bench & Bar and 5:00-6:15p.m. Division Luncheon Young Lawyers Division Hyatt Regency Hotel Joint Reception $20 per person Heritage Pre-Function The Young Lawyers Division wishes to extend an invitation Lexington Convention Center to all KBA members and guests to attend their annual Complimentary with registration luncheon. The division will honor recipients of the 2018 Pre-registration required Outstanding Young Lawyer Award, Service to Young Sponsor: Lawyers Award and Young Lawyer Service to Community Award. In addition to these annual awards, the winners of the 2018 Legal Food Frenzy competition will also Catch up with justices, judges and attorneys from be recognized. The law firm or legal organization that throughout Kentucky gathering for conversation and raised the most overall total pounds will be presented the refreshments. During this time-honored social event, prestigious Attorney General’s Cup by Attorney General attendees will gather for food and camaraderie. The Andrew Beshear. Immediately following the luncheon reception will take place just prior to the annual banquet, program, all YLD members are invited to remain for the which we hope you will make plans now to attend. annual meeting of the Young Lawyers Division.

KBA Annual Banquet 6:30p.m. Heritage East/Center Lexington Convention Center $65 per person Join us for the 2018 KBA Annual Banquet where you can enjoy a delicious meal and celebrate the investiture of the KBA’s new officers and bar governors. We will also present the 2018 Distinguished Judge, Distinguished Lawyer and Chief Justice’s Special Service Award.

Opening the event will be a performance by the Kentucky Photo provided by Kentucky Refugee Ministries Refugee Ministries Lexington Children’s Choir, the Kentucky Refugee Ministries beneficiary of this year’spublic service project. The Lexington Children's Choir entertainment will conclude with a performance by Sony Recording Artists, The Acoustikats, founded in 1993 by Dr. Jefferson Johnson as a subsection of the University of Kentucky Men’s Chorus. The premier all-male a cappella ensemble in the Commonwealth of Kentucky will provide entertainment during dinner and after the presentations. This group of 12 young men has been featured on national television as a part of NBC’s “The Sing-Off” a cappella competition and has performed in countless venues across the United States from the shores of Hawaii to “Elvis Week” in Memphis, Tennessee. Check out these ‘Kats on Facebook, Twitter, and Instagram to follow them on their musical journey!

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 6 Friday, June 15

KBA Membership Awards Luncheon 12:00-1:00p.m. Patterson Ballroom, Hyatt Regency Hotel $30 per person Let the tributes begin! We’ll honor the recipients of the KBA’s Annual Bruce K. Davis Bar Service Award; Donated Legal Services Award; Thomas B. Spain Award and the Nathaniel R. Harper Award during this traditional luncheon hosted on the convention’s closing day. We’ll also recognize past KBA presidents, present our annual Law Day Awards, and honor the many Senior Counselors who achieved this special status in 2018. Jon W. Ackerson Wanda R. Delaplane Lowell Daniel Key Frederick W. Rhynhart Terry R. Anderson Suetta Wilson Dickinson J. Michael Kimbley Robert Edward Rich William James Anderson Daniel R. Dolan Randall Loftin Kinnard Bobby H. Richardson William E. Anderson II Eugene K. Duncan Robert M. Kirtley Larry Roberts James E. Armstrong John K. Dunlap Robert Dean Laframenta Bruce D. Rosenstein Mark F. Armstrong Francis H. Edelen, Jr. Sue Carrol Lake Henry L. Rosenthal, Jr. Evelyn Joy Arnold John M. Elias John E. Lange Dixie R. Satterfield Roy W. Bachmeyer, Jr. C. David Emerson Raymond M. Larson Donald F. Schmidt John Baird Mary Camille Erwin Bennie Lazzara, Jr. George S. Schuhmann William J. Baird III Paul F. Fauri Martin John Lenen, Jr. David Schulman Susan Jackson Balliet Fred E. Fischer III Robert Lee Lewis Stephen F. Schuster J. T. Begley Timothy Ahern Fischer David LeRoy Lieser Ralph W. Shelburne Alonzo F. Berry, Jr. David L. Fister Arthur C. Litton II Dee Sheriff-MacDonald C. Barret Birnsteel Richard Irving Fleischer Wendell V. Lyon, Jr. Charles R. Simons William Bertrand Blackburn Clyde H. Foshee, Jr. Allison J. Maggiolo Michael Richard Slaughter Richard Johnston Bolen Joe W. Foster Don H. Major Herbert J. Smith, Jr. David Allen Bratt Stephen N. Frazier Herman Joseph Marshall David S. Stallard Harold S. Burks Ronald L. Gaffney John M. Mayer, Jr. William D. Stark, Jr. Rutheford B. Campbell, Jr. Robert I. Gallenstein Thomas A. McAdam III Edward H. Stopher Stephen C. Cawood Gerard R. Gerhard Wayne E. McAllister William P. Sturm Laura Lee Chastain Gary Michael Gibbs Thomas H. Meeker Paul E. Sullivan Rebecca A. Childers Sheldon G. Gilman Charles Frederick Merz Alexander T. Taft, Jr. James L. Clarke Charles E. Glasscock Lee Gordon Meyer Douglas Bruce Taylor John Geoffrey Cobey George Phillip Gleitz Burton Milward Robert F. Teaff James F. Collins III Thomas H. Glover Terrance Ray Monnie David T. Thompson Owen T. Combs, Jr. Maurice K. Gordon II Donnie Ray Moses Robert Earl Touchton Ralph Combs Francis Gerald Greenwell Donnie R. Murray Burr J. Travis Carl T. Cone Phillip Grogan Joseph Frederick Nett William Clifton Travis Gary E. Conn James E. Groves, Jr. Michael J. Nichols Glenn M. Turner Ben P. Coomes Tom Handy Victoria Ann Ogden Paul Henry Twehues, Jr. Martha Louise Farmer Copeland Benjamin Walker Hawes, Jr. Robert C. Patton Jack R. Underwood, Jr. Earl Cornett J. Thomas Hensley Ronda Fields Paul Sarah Jane Van Roo James L. Cottrell Harry K. Herren, Jr. Stuart N. Pearlman Theodore B. Walter James Thomason Cox John Hicks III Harvey T. Pennington Keith A. Warren Jerry Jones Cox Judith Breen Hoge Martha Quinn Polk Porter Watkins William Gary Crabtree David A. Holladay Stephen T. Porter Ralph Dudley Webb James B. Cress Shelby Paul Horn Grover C. Potts, Jr. J. Gregory Wehrman William D. Crosby, Jr. Stephen Gordon Horner Gayle M. Powell Harold Roy Weinberg Everett Currier, Jr. Lee Huddleston Kelly D. Powell William P. Whitney, Jr. Charles W. Curry William L. Huffman Ronald L. Presser J. F. Williamson William Malcolm Cussen Michael A. Hurter Alton Delano Priddy Frank C. Woodside III Nora VanLahr Dailey G. Edward James William Dyer Probus William F. Woodward Harry Scott Davis Alfred S. Joseph III Curtis G. Quindry Robert L. Woolery II John J. Davis David K. Karem Katherine Randall William Yesowitch Walter W. Davis Elizabeth Gail Kaukas Richard M. Rawdon, Jr. Bruce Alexander Yungman Sam Deeb Herbert L. Keesee Alvin S. Reeder Wilbur Marks Zevely Truman Lewis Dehner John P. Keith III James G. Reid Martha A. Ziskind 7 2018 KBA ANNUAL CONVENTION MORE THAN A LAWYER Asylum Deferred Action for Child Arrivals Permanent residency (green card) (DACA) Family reunification Citizenship/naturalization

Visit us at www.kyrm.org to donate online. Include 'immigration' in your comments.

Make your check payable to Kentucky Refugee Ministries and write 'immigration' in the memo. Mail to 969-B Cherokee Rd, Louisville, KY 40204.

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 8 CLE Wednesday, June 13

8:30 a.m.-4:30 p.m. New Lawyer Program

Supreme Court Rules Hearing

9:00-10:30 CLE Credit: 1.5

Chief Justice Justice Justice Justice Justice Justice Justice John D. Minton Jr. Bill Cunningham Lisabeth T. Hughes Laurance B. VanMeter Daniel J. Venters Michelle M. Keller Samuel T. Wright III

a.m. Bowling Green Princeton Louisville Lexington Somerset Covington Whitesburg Sponsor: Supreme Court of Kentucky The Supreme Court will meet in open session with Chief Justice John D. Minton Jr. presiding. Comments on proposed changes to criminal and evidence rules will be presented. These proposed changes are presented to the membership in order to solicit open debate regarding the methods by which the courts can best administer justice. Make sure your ideas are heard!

Spotlight CLE: Nine Years in the Crisis Management for Attorneys Guantanamo Goo and Their Clients CLE Credit: 1.0 CLE Credit: 1.0

Richard Kammen, Kammen & Moudy, Bruce M. Hennes, Hennes Communications, Cleveland, Ohio Indianapolis, Indiana This fast-paced talk will focus on a highly strategic approach Sponsor: Criminal Law Section to crisis management and crisis communications for a wide

Richard Kammen will discuss his nine years representing Abdul variety of situations, offering methods to establish and maintain 10:40-11:40 Rahim al-Nashiri, the alleged mastermind of the bombing of the “control of the message,” enabling attorneys to help their USS Cole. He'll share his experiences, anecdotes and opinions firms and clients move messages forward or mount a defense about the case and the bizarre world of the Military Commissions. against an outraged public, unhappy customers or a sudden press onslaught. The Civil Jury Trial is on Death’s Doorstep: Should We Resuscitate and if so, How? Truth, Justice and the Ethical Way: The Role CLE Credit: 1.0 of Government Attorneys in Representing the John A. Day, Law Offices of John Day P.C., Brentwood, Tennessee Public Interest a.m. Civil jury trials are declining. Why is this happening? What does CLE Credit: 1.0 ethics Paul L. Whalen, Ft. Thomas the decline in jury trials say about our justice system? Should efforts be made that may increase the number of trials and, if so, Sponsor: Public Interest Law Section how can that be accomplished? Ever wonder what government lawyers and superheroes have in common? Although you are unlikely to see counsel in capes flying through the metropolis, government lawyers and superheroes serve the public in the pursuit of justice. This program will dig into "who is the client?" issues; public interest versus private values; the role of confidences in the context of the public interest; conflicts; duty; whistleblowers; loyalty and more.

9 2018 KBA ANNUAL CONVENTION MORE THAN A LAWYER CLE Wednesday, June 13

The Lincolns in Kentucky The Potential Impact of Christie v. National CLE Credit: 1.0 Collegiate Athletic Association on the Kent Masterson Brown, Law Offices of Kent Masterson Brown, Lexington Future of Sports Betting in Kentucky Brown will explore the 34 years the Lincoln family lived in CLE Credit: 1.0 11:50 Kentucky and emphasize the legal actions brought against Kerry O. Irwin and Laura A. Holoubek, Dinsmore & Shohl LLP, Lexington; Thomas Lincoln and his wife, Nancy Hanks Lincoln, over the Dan Kustelski, Chalkline Sports, Nashville, Tennessee two properties in present-day LaRue County where their son, Sponsor: Young Lawyers Division Abraham Lincoln, was born and where he spent the earliest a.m. years of his memory. He will also explore the means by which This presentation will address the current status of the case those properties were acquired by the Lincolns. Christie v. NCAA (which was heard by the Supreme Court in early December 2017) and its impact or potential impact on -12:50 gaming in Kentucky, and the legal issues involved. The panelists, The Lobbying Lawyer which include Kentucky gaming lawyers and industry experts, CLE Credit: 1.0 will also discuss the current sports betting industry, including the Katie Gabhart, Executive Branch Ethics Commission, Frankfort; extensive sports betting black market and changing attitudes Kara L. Daniel, Kentucky Legislative Ethics Commission, Frankfort towards sports betting in the U.S. p.m. Sponsor: Executive Branch Ethics Commission Kentucky Legislative Ethics Commission This program will discuss the steps to register as an Executive Agency Lobbyist and a Legislative Agent, determining who must register as an EAL or LA, and navigating the ongoing requirements after registration to remain in compliance with KRS Chapter 11A and KRS Chapter 6, and stay within the good graces of the Executive Branch Ethics Commission and the Legislative Ethics Commission. 1:15-2:15 Feature CLE Mind Hunter: The Real Life Silence of the Lambs CLE Credit: 1.0 John Douglas Legendary FBI profiler and founder of the FBI’s Investigative Support Unit, John Douglas is the model for Jack Crawford in the film “Silence of the Lambs” and Holden Ford in Netflix’s “Mindhunter.” He has served as a consultant on

the JonBenet Ramsey case, “The West Memphis Three” case and the Amanda p.m. Knox case. Come hear why his “ability to link behavior and evidence make him the lawman serial killers fear.”

Spotlight CLE: Unconvicted: How Criminal Expungement 2:25-3:25 The Hunting Ground Laws Impact Almost Every Practice CLE Credit: 1.0 CLE Credit: 1.0 Amy Ziering, Chain Camera Pictures, Los Angeles, Bradley D. Clark, Clark Law PLLC, Lexington California New expungement laws in the state of Kentucky allow for many convictions to disappear from official records. This interactive Amy Ziering is the producer of “The Hunting Ground,“ a session outlines the new expungement process for misdemeanors, documentary film about the incidence of sexual assault felonies and dismissed cases. We will also explore how expunged p.m. on college campuses and the actions of universities and records impact civil, administrative, and criminal litigation. colleges. Join Amy as she discusses the film and how “the use of Title IX in campus sexual assault cases became a Wednesday 2:25-3:25 p.m. programming model for universities across the country.” continues on the next page

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 10 CLE Wednesday, June 13

Construction Law for the #MeToo – Sexual Harassment in the 21st Century 2:25-3:25 Non-construction Attorney CLE Credit: 1.0 CLE Credit: 1.0 James W. Herald III, Riley Herald & Banks, Prestonsburg; Jessica Winters, Lexington; Drew Millar, Tempur Sealy International, Lexington Stephen E. Smith, Goldberg Simpson LLC, Prospect Sponsor: Labor & Employment Law Section Sponsor: Young Lawyers Division This session will review troublesome contract language in resi Presenters will give an overview of basic legal issues related to sexual harassment in the labor and employment context. It will dential contracts; navigating issues related to new construction include a panel discussion regarding the implications of social

p.m. or remodeling on the residential and commercial level; methods media and how employers can handle social media reports of of resolution of lien claims by landowner and contractors; harassment, as well as investigation of workplace complaints of mediation and arbitration contracts and an introduction to sexual harassment. the Fairness in Construction Act.

When It’s Right to Be Wrong: A Prosecutor’s The Ethics of Joint Representation in Role When Confronted with a Suspected Business Transactions Wrongful Conviction CLE Credit: 1.0 ethics CLE Credit: 1.0 A.J. Singleton, Stoll Keenon Ogden PLLC, Lexington; Thomas B. Mason

Professor William H. Fortune, University of Kentucky College of Law, and Amy E. Richardson, Harris Wiltshire & Grannis LLP, Washington, D.C.; Lexington; J. Michael Brown, Kentucky Attorney General’s Office, Frankfort; J. Brandon Johnson, Richardson and Richardson PSC, Louisville Larry D. Simon, Louisville; Melanie A. Foote, Department of Public Sponsor: Business Law Section Advocacy, Frankfort; Andrew Wolfson, Louisville Courier-Journal, Louisville Most attorneys engage in joint representations which are an Sponsor: Criminal Law Section essential, everyday requirement in today’s practice. The funda- This program addresses how a prosecutor carries out his or her mental principle is always treat joint clients equally. Although

duties when faced with information indicating that a defendant simple to state, this principle is often difficult and nuanced. For 3:35-4:35 has been wrongfully convicted, specifically how such information example, how can an attorney treat a long-term client that should be investigated and how the results of that investigation brings the attorney numerous deals per year the same as an should be handled. It will also touch on what procedures a prose- unknown third party for the purposes of a “joint transaction?” cutor’s office must have in place to guarantee that these situations What if one party is paying all fees? These and other difficult are addressed with an aim toward securing justice and releasing situations will be dissected by leading ethics attorneys from those wrongfully imprisoned. Washington, D.C., to our Commonwealth.

Top 10 Stupidest Things People Do to The Kentucky Practitioners’ Guide to p.m. Hide Money and Business Valuation Issues Understanding the Link between Animal Involving Hidden Assets in Divorce Abuse and Human Violence CLE Credit: 1.0 CLE Credit: 1.0 Jeffrey W. Brend, Levin & Brend P.C., Chicago, Illinois Diane Balkin, Animal Legal Defense Fund, Denver, Colorado Sponsor: Family Law Section Sponsor: Animal Law Section Learn how to locate business and personal assets spouses may Practitioners will learn about the documented relationship attempt to hide before and during the divorce process. between animal abuse and human violence. The program will highlight a substantial body of research in this area, identify national legal trends, and discuss developments in neighboring jurisdictions that pertain to animal abuse and human violence. The program will also cover Kentucky law pertaining to situations that may involve animal abuse and human violence.

11 2018 KBA ANNUAL CONVENTION MORE THAN A LAWYER CLE Thursday, June 14

False Claims Act Primer How to Successfully Defend DUI Cases CLE Credit: 1.0 CLE Credit: 1.0 Molly K. Ruberg, Bass Berry & Sims, Nashville, Tennessee Ryan Beck, Busald Funk Zevely PSC, Florence

Sponsor: Young Lawyers Division Join Ryan Beck as he discusses tactics used to successfully This program will focus on traditional grounds for False Claims defend DUI cases, including cases with blood alcohol results Act liability and the FCA’s qui tam provisions, the reverse false over the legal limit. He will discuss pretrial and trial strategies 8:30-9:30 claims provision and the 60-day repayment rule, and the fate to put forth your client’s story of innocence. of the implied certification theory of FCA liability following the Supreme Court’s landmark Escobar decision. In addition, recent trends in FCA enforcement and the DOJ’s increased How to Effectively, Creatively and Ethically focus on individual liability, as well as issues related to FCA Market Yourself and Your Practice CLE Credit: 1.0 ethics damages and penalties will also be covered. Katy Goshtasbi, Puris Personal Branding, San Diego, California

a.m. Preparing for Divorce Litigation / Family Law 101 As busy lawyers, marketing and selling ourselves and our CLE Credit: 1.0 practice often takes a back seat to the substantive work we do. Allison S. Russell, Lindsay I. Hart and Megan C. Cleveland, Goldberg The result is that we are working way too hard, have too much Simpson LLC, Prospect stress and are making this marketing process way too difficult. Research shows that 78 percent of everything consumers buy, Sponsor: Young Lawyers Division including legal services, is based on an emotional connection. Presenters will address trial and hearing practice as it relates In this program we will explore the reasons why marketing to issues that arise in divorce proceedings. Topics include pre- yourself and your practice is so important. You will also be paring outlines, parties that you may want to consider calling given an action plan to implement so you can see results as witnesses, complying with the detailed rules in the Family immediately in your practice. Court Rules of Practice and preparing your client for court.

Developments in Healthcare Law: Medical Spotlight CLE: The Opioid Epidemic in Kentucky Review Panels and Negligent Credentialing CLE Credit: 1.0 CLE Credit: 1.0 Chief Justice John D. Minton Jr., Supreme Court of Kentucky, Bowling th Joseph A. Wright, Thompson Miller & Simpson, Louisville; Rebecca R. Green; Judge David A. Tapp, 28 Judicial Circuit, Somerset; Van Ingram, 9:40-10:40 Schafer and Emily W. Newman, Dzentis Newman PLLC, Louisville Kentucky Office of Drug Control Policy, Frankfort;Dr. Allen Brenzel, Kentucky Department for Behavioral Health, Frankfort; Judge Christopher J. Mehling, Sponsor: Young Lawyers Division Kenton County Family Court, Covington This program will provide an overview of KRS 216C, Kentucky’s Sponsor: Supreme Court of Kentucky Medical Review Panel statute that went into effect on June 29, Opioid use disorder has reached epidemic levels in Kentucky. 2017, as well as the November 2, 2017, Supreme Court of Ken- It is flooding our courts, our prisons, our child welfare system, tucky decision on negligent credentialing. The Medical Review our emergency rooms, and our treatment providers. It is taking Panel statute is applicable to all medical malpractice claims, and an emotional toll on our families and our communities. And it understanding this law’s procedural requirements and practical a.m. is creating a health crisis that threatens to impact thousands impact is a must for any lawyer who practices in this area. This of people in our region. This panel discussion will focus on the presentation will also analyze the effect of the Lake Cumberland role of the court system, law enforcement and the medical Regional Hospital, LLC v. Adams opinion on negligent creden- community in addressing the opioid epidemic. tialing, with regard to what alternative claims can still be brought against a hospital, and tips for application in the defense of a medical malpractice case.

Thursday 9:40-10:40 a.m. programming continues on the next page

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 12 CLE Thursday, June 14

Some Mediation Tactics that Don’t Work; Cyber Trends & Tips: What You Need to Know

9:40-10:40 Some Critical Mediation Negotiation about Information Security in 2018 Skills that Do! CLE Credit: 1.0 CLE Credit: 1.0 Stephen E. Embry, Frost Brown Todd LLC, Louisville; Leanthony Edwards Karen Walker, Walker Law Office PLLC, Lexington;John W. Hays, Jackson and Kurt Hunt, Dinsmore & Shohl LLP, Cincinnati, Ohio; Noah Jellison, Na- tionwide Mutual Insurance Company, Columbus, Ohio Kelly PLLC, Lexington; Rebecca A. Simpson, English Lucas Priest & Owsley LLP, Bowling Green; Pierce W. Hamblin, Landrum & Shouse LLP, Lexington Sponsor: Young Lawyers Division Sponsor: Alternative Dispute Resolution Section Cybersecurity and privacy affect all facets of modern commerce There are several mediation negotiation mistakes or errors that and create numerous legal and practical challenges. This prac- are common, but repeated. There are several useful mediation tical “boots on the ground” panel will help attendees keep up a.m. negotiation skills that are ignored or unlearned. A panel of ex- with the fast-changing developments in the cybersecurity realm. perienced mediators will examine common mediation errors/ The panel will discuss emerging and trending threats, critical mistakes and offer suggestions on how to avoid them, while at best practices, and key legal developments. the same time analyze some basic critical negotiation skills that make lawyers successful negotiators/mediation advocates.

Spotlight CLE: Social Media and Legal Ethics: The Ethical Way A Co-Equal Branch—Judicial to Use Those Tweets, Likes and Links to Your Selection and Independence in Advantage an Age of Anxiety CLE Credit: 1.0 Ethics CLE Credit: 1.0 Matthew W. Barszcz and Caroline Pieroni, Dinsmore & Shohl LLP, Louisville Hilarie Bass, Greenberg Traurig, Miami, Florida; Sponsor: Young Lawyers Division William R. Garmer, Garmer & Prather PLLC, Lexington; Judge Herbert Come learn the ways that lawyers can use and avoid Dixon, ABA Standing Committee on the American Judicial System, Washington, D.C.; Professor Paul E. Salamanca, University of Kentucky College of Law, misusing social media. The program will focus on ethics issues Lexington; Professor Samuel A. Marcosson, University of Louisville Brandeis relating to improper contact with represented parties through 10:50-11:50 School of Law, Louisville social media, proper authentication of social media evidence, This important program features American Bar Association obligations to preserve and collect social media, and improper President Hilarie Bass and will focus on judicial selection and contact with jurors through social media. Ethical issues relating independence at both the federal and state level. The panel will to the use of social media for advertising and solicitation will comment on selection methods and means, as well as the duty also be addressed. of lawyers to defend judicial independence and the integrity of our system of justice. Access to Justice: A National Perspective and a Kentucky Perspective CLE Credit: 1.0 Preparing and Presenting Witnesses in a.m. Civil Litigation Justice Michelle M. Keller, Supreme Court of Kentucky, Covington; CLE Credit: 1.0 James L. Sandman, Legal Services Corporation, Washington, D.C.; Glenda J. Harrison, Kentucky Access to Justice Commission, Frankfort John L. Tate, Stites & Harbison PLLC, Louisville Sponsor: Access to Justice Commission Sponsor: Young Lawyers Division “Equal justice under law” is etched on the front of the building This program is based on Chapter 7, “Witnesses” in Kentucky of the highest court in the land, and we need to take stock of th Civil Practice at Trial, 4 ed. Intended as a practical guide to what we are doing as a society to assure that this is a prom- the examination of witnesses in civil trials, the program is suitable ise that is being fulfilled. This session will provide a national for both less experienced trial lawyers and for more experienced overview of access to justice issues as well as an update on the lawyers who might be rusty from lack of trial practice. The five newly formed Kentucky Access to Justice Commission and the basic units cover witness preparation, direct examination, cross- statewide initiatives to improve access to the justice system for examination, introduction of evidence, and making or responding all Kentuckians. to objections. 13 2018 KBA ANNUAL CONVENTION MORE THAN A LAWYER CLE Thursday, June 14

Thoroughbred Racing, Wagering and Sales: The Making of the Constitution The Keeneland Trifecta CLE Credit: 1.0 CLE Credit: 1.0 Professor Michael J. Klarman, Harvard Law School, Cambridge, Massachusetts William M. Lear, Jr., Stoll Keenon Ogden PLLC, Lexington

12:00-1:00 Professor Michael Klarman will discuss his book, The This presentation will provide an inside look at many facets of Lexing- Framers’ Coup: The Making of the U.S. Constitution, ton’s iconic racetrack and Thoroughbred sales company. It will be a which is the first comprehensive, single-volume account wide-ranging review that includes highlights, traditions, and personali- of the background, drafting, and ratification of the ties (horses, jockeys, trainers, owners, celebrity guests). Woven into the U.S. Constitution (and the Bill of Rights). Specifically, presentation will be a host of not-so-well-known facts and humorous Klarman seeks to provide answers to the questions of anecdotes from the colorful history of one of America’s finest racetracks (1) how the Framers at the Philadelphia convention and the world’s largest Thoroughbred auction house. managed to write a constitution that was vastly more nationalist and democracy-constraining than most p.m. A Survey of Kentucky Laws Affecting Our Veterans Americans wanted or expected, and (2) how they CLE Credit: 1.0 were able to convince ordinary Americans, through Dennis W. Shepherd, Kentucky Department of Veterans Affairs, Frankfort a reasonably democratic ratifying process, to Sponsor: Military Law Committee approve such a constitution. There are nearly 300,000 Kentucky veterans who have served the Com- monwealth and the United States faithfully, often under difficult circumstances. This program will apprise practitioners how Kentucky law impacts our veterans and how best to serve the veterans who served us so well. 1:25-2:25 1:25-2:25 Feature CLE The Last Days of Night CLE Credit: 1.0 Graham Moore, New York, New York Join Oscar-winning screenwriter Graham Moore (”The Imitation Game“) as he discusses his latest book and soon to be movie The Last Days of Night p.m. which recreates the landmark case of Edison v. Westinghouse over the p.m. patent of the electric lightbulb.

2:35-3:35 Medicare and Medicaid: Who Pays for Spotlight CLE: Long-Term Care Rebuilding Law For CLE Credit: 1.0 a Practical Society Misty C. Vantrease, Kentucky Elder Law, Louisville CLE Credit: 1.0

Sponsor: Elder Law Section Philip K. Howard, New York, New York Getting more and more questions from clients about long-term President Trump’s election is a symptom care and asset preservation? This quick primer will take you of broad voter dissatisfaction with Washington. Neither party through the rules for the various programs that can assist in has a coherent vision to fix it. Howard will discuss structural p.m. the payment of long-term care. Ms. Vantrease will cover the flaws that make it difficult to run schools, rebuild infrastructure, basic rules for Medicare and Medicaid (long term), along contain health care costs or address new social challenges. with practice tips to make sure your clients have the resources they need and are advised on all areas of their estate plan. Thursday 2:35-3:35 p.m. programming continues on the next page

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 14 CLE Thursday, June 14

2:35-3:35 Biggest Mistakes in LLCs Kentucky Real Estate Case Law Update: CLE Credit: 1.0 You Be the Judge! Thomas E. Rutledge, Stoll Keenon Ogden PLLC, Louisville; Kelley Rosenbaum CLE Credit: 1.0 Schenck, Lexmark International Inc., Lexington; Anuj G. Rastogi, Seiller Waterman LLC, Joshua R. Denton, Gullett Sanford Robinson & Martin PLLC Louisville This interactive session is designed to educate practi- Sponsor: Business Law Section tioners about the most-recent developments and trends LLCs are by far the most widely used entity of choice in Kentucky. Most in Kentucky real estate law, with a focus on Kentucky

p.m. practitioners start the occasional company, and everyone comes across decisions from the prior year. issues related to LLCs. This program will cover the biggest mistakes that the panel has seen in LLCs, with particular consideration to drafting and case law principles.

Difficult, Impaired or Abused Clients: Fixing the Law Governing the Relationship How to Recognize and Handle between Hate Speech and Mass Violence CLE Credit: 1.0 CLE Credit: 1.0 Dr. Leah Claire Bennett, Pine Grove Behavioral Health & Addiction Services, Professor Gregory Gordon, The Chinese University of Hong Kong, Hong Kong Hattiesburg, Mississippi; Louis I. Waterman, Goldberg Simpson LLC, Prospect Professor Gregory Gordon, one of the world’s leading experts Sponsor: KYLAP on incitement, will examine the law regulating the relationship As lawyers, we’ve all encountered the difficult client. There are between hate speech and atrocity. Unfortunately, this key however, numerous sources contributing to the difficult per- component of human rights protection—both in terms of prevent- sonalities of these individuals. Identifying the patterns and the ing violence and upholding liberty of expression—has become likely sources will allow us as practitioners to better manage the dysfunctional. Existing scholarship has suggested discrete fixes relationship with the difficult client. Dr. Bennett will explain the to individual parts of this body of law but no work has yet stepped environmental factors and emotional drivers for these individ- back and considered holistic solutions. Professor Gordon’s recent-

uals and provide insights into identifying some of the different ly published book Atrocity Speech Law, does just that. Professor 3:45-4:45 and most difficult personality types. She will also explore the Gordon will discuss his book and explain how the law came to best methods of dealing with them and how best to manage be so fragmented, going back to its foundations and re-examining the professional relationship. its formulation. From there, he will propose a set of solutions to deal with the individual deficiencies and these will culminate in his “Unified Liability Theory.” In a time of rising hate rhetoric, The ABCs of Kentucky Open Records and Open both at home and abroad, this presentation will offer timely and Meeting Acts: A Primer invaluable insights into balancing the precious right of free speech

CLE Credit: 1.0 with the effective regulation of incendiary rhetoric that can lead p.m. Kif H. Skidmore, Stoll Keenon Ogden PLLC, Lexington; Jon L. Fleischaker, to mass murder. Kaplan & Partners LLP, Louisville; Gordon R. Slone, Office of the Kentucky Attorney General, Frankfort To Tell the Truth You need not be a media lawyer or work for a public agency CLE Credit: 1.0 ethics fielding requests for public documents to enjoy this interesting Professor William H. Fortune, University of Kentucky College of Law, Lex- primer on the Kentucky Open Records and Open Meetings Acts. ington; Thomas L. Rouse, Erlanger; Jane E. Graham, Henry Watz Raine & The panel will provide insight on sunshine laws; the Freedom of Marino PLLC, Lexington Information Act; the role of the press; the requirements of these Sponsor: Ethics Committee laws and their exceptions; the role of the Kentucky Attorney General and judicial review of an Attorney General opinion. In this interactive presentation, members of the Ethics Committee They will also discuss many of the most noteworthy precedents will discuss fundamental issues that affect every lawyer: What is addressing how these statutes apply in a variety of settings. truth? Can you know truth? How do you know truth? Is it always unethical for a lawyer to lie? What is a lawyer’s responsibility to truth? Where is the line between preparing a witness to testify and suborning perjury? Come be a part of this interesting and challenging hour. 15 2018 KBA ANNUAL CONVENTION MORE THAN A LAWYER CLE Friday, June 15

ACA Update Better NOT Call Saul: Professional

Professor Nicole Huberfeld, Boston University School of Public Health, Ethics Lessons from Breaking″ Bad″ Boston, Massachusetts and Its Prequel Sponsor: Health Care Law Section CLE Credit: 1.0 Ethics 9:00-10:00 This talk will address the changes in laws, regulations, and policy taking Trevor W. Wells, Crown Point, Indiana; Alex L. Scutchfield, Scutchfield Law PLLC, Lexington;Oran S. (Scotty) McFarlan III, place as implementation of the ACA shifted to a new presidential admin- Justice and Public Safety Cabinet, Frankfort istration. We will discuss the import of the repeal of the individual man- date, new interpretations of Medicaid, and other related health law and An entertaining examination into professional-ethics policy shifts. We will also consider what to watch for in the coming year. missteps and transgressions by fictional television attorney Saul Goodman (f/k/a Jimmy McGill) from ”Breaking Bad” and ”Better Call Saul.” Using The Fair Debt Collection Practices Act: A Primer parody video vignettes shot on a shoestring budget CLE Credit: 1.0 and starring themselves as characters inspired by a.m. R. Brooks Herrick, Dinsmore & Shohl LLP, Louisville the series, the presenters will discuss how Saul’s law Sponsor: Young Lawyers Division practice measures up against the Kentucky Rules of Professional Conduct. Attendees need not have An introduction to the Fair Debt Collection Practices Act (FDCPA), 15 any previous familiarity with the series to pick up U.S.C. §1692, et. seq., including elements of a claim, defenses to a claim, an hour of ethics credit and likely enjoy a few and who can be liable under the FDCPA. This program will help identify laughs in the process. whether your client is subject to the requirements of the FDCPA, how to determine if your client has an FDCPA claim, and how to determine when actions taken by an attorney are subject to the requirements of the FDCPA.

Kentucky Supreme Court Review 9:00-11:00 CLE Credit: 2.0 Jason M. Nemes, Nemes Eade PLLC, Louisville R. Kenyon Meyer, Dinsmore & Shohl, Louisville J. Guthrie True, True Guarnieri Ayer LLP, Frankfort Lori B. Shelburne, Gess Mattingly & Atchison, Lexington William R. Garmer, Garmer & Prather PLLC, Lexington

The Kentucky Supreme Court renders nearly 300 opinions per year—covering subjects spanning the entirety of Kentucky jurisprudence. But few (if any) of us have the spare time to read every opinion. This program is designed for the busy practitioner who is interested in the development of the law and

understanding how individual justices approach various cases. To that end, the panel will cover a few a.m. dozen of the most important decisions since last convention; and will provide a global view of the caseload, timelines and voting patterns. Each panelist is a specialist in a particular aspect of the Court’s docket, and has culled and distilled the essential opinions of this past year.

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 16 CLE Friday, June 15

All the Presidents' Wills Spotlight CLE: Who Stays and Who CLE Credit: 1.0 Goes Home: How Does Kentucky’s Joshua R. Denton, Gullett Sanford Robinson & Martin PLLC, Nashville, Tennessee System for Pretrial Release Operate Take a walk through American history in this session, during which the estate and Is It Working for Us? planning documents of the presidents of the United States will be explored. Credit: 1.0 These instruments offer a unique and intimate view into the personal lives of , Justice & Public Safety Cabinet, Frankfort; 10:10-11:10 Secretary John C. Tilley our former commanders-in-chief, as well as the people, things and causes Judge David P. Bowles, Jefferson District Court, Louisville; Thomas they valued most. Further, this historical review will provide insight as to the B. Wine, Commonwealth's Attorney, Jefferson County, Louisville; evolution of estate planning practices and trends within the United States Mark E. Bolton, Louisville Metro Department of Corrections, Louis- over the past 200 years. ville; Tara Boh Blair, Administrative Office of the Courts, Frankfort Sponsor: Criminal Law Section From Zealous Representation to Threat Assessment: Senator Rand Paul recently wrote an editorial in the Identifying When a Client becomes a Threat New York Times calling for re-examination of pre- CLE Credit: 1.0 trial detention, and considerable attention has been

a.m. Sharon R. Muse, Georgetown focused on the issue by criminal justice stakeholders, How prepared are you to avoid becoming the victim of violence? Walk policymakers and legal scholars in Kentucky and through lawyer Sharon Muse’s experience of being kidnapped by a for- across the country. Join our distinguished panel of mer client and learn to recognize the red flags that might one day save judges, prosecutors, defense lawyers, corrections your life. Discover the importance of situational awareness, mindset, officials and legislators as they discuss this timely issue. and tactics to aid your defense. Analyze when—and when not—to trust your instincts and delve into the brain’s reaction to a traumatic situation, which may cause you to hesitate when you need to take action. Con- clude with an assessment to determine your current self-protection IQ and suggestions for preparation of your own safety plan.

Negotiation Skills MAY THE LAW BE WITH YOU: Legal issues from a CLE Credit: 1.0 galaxy far, far away

Judge Julia H. Adams (Ret.), Winchester; Sarah M. McKenna CLE Credit: 1.0 11:20 and Sarah S. Mattingly, Dinsmore & Shohl LLP, Louisville Jessica C. Mederson, Hansen Reynolds LLC, Milwaukee, Wisconsin Sponsor: Young Lawyers Division This program will address a variety of everyday legal issues that arise in Whether buying a new car, negotiating a contract or the ”Star Wars” universe. These issues include such matters as potential mediating a personal injury case, we all use negoti- product liability claims for the destruction of the Death Star, employment a.m ation in both our personal lives and our professional claims against Darth Vader and Jabba the Hut, the ownership of R2-D2 lives. We will provide helpful insights and best practic- and whether R2-D2 has individual rights. Warning: recent movies will .-12:20 es to approach negotiation whether from the perspec- be spoiled! tive of litigator, mediator, or transactional lawyer and management of client expectations in relation to those negotiations. The NCAA and Representing Student Athletes CLE Credit: 1.0

p.m. Matt H. Jones, KSR & ”Hey Kentucky,” Louisville; Thomas W. Miller, Miller Griffin & Marks PSC, Lexington; C. James Zeszutek, Dinsmore & Shohl LLP, Pittsburgh, Pennsylvania

This program will provide an overview of the unique challenges involved in representing a NCAA athlete with regard to eligibility determinations, disciplinary matters, privacy and publicity issues, and contract negotiation.

17 2018 KBA ANNUAL CONVENTION MORE THAN A LAWYER CLE Friday, June 15

Who Killed Betty Gail Brown? Murder, Mistrial Ethics Jeopardy 12:30-1:30 and Mystery CLE Credit: 1.0 ethics CLE Credit: 1.0 Justice Steven H. David, Indiana Supreme Court, Indianapolis, Indiana; Professor Robert G. Lawson, University of Kentucky College of Law, Judge Glenn E. Acree, Kentucky Court of Appeals, Lexington; Lexington William D. Mott, Burkesville; Scott White, Miller Wells PLLC, Lexington Be prepared to be entertained as you learn about civility Join Professor Robert Lawson as he discusses his recently and professionalism. Just make sure you answer in the form published book which focuses on the unsolved murder of a of a question! Indiana Justice Steven David, Court of Appeals college student that occurred in Lexington in 1961 and the trial Judge Glenn Acree and attorney Scott White square off for of a homeless man who confessed to the murder in 1965 while

P.m. a rousing game of Ethics Jeopardy. Keeping order will be in jail in Klamath Falls, Oregon. Professor Lawson who served Garrison Sergeant Major William Mott, OBE, MOV, Ret., as a defense lawyer in the trial wrote the book in an attempt the Queen’s Ceremonial Warrant Officer, who oversaw all to provide an accurate historical record of these two important major state ceremonial occasions from 2003-2015. events. You won’t want to miss this compelling story of the law at work. 1:40-2:40

Feature CLE Fighting Sexual Harassment and Assault in Court, in Negotiations and in the Media in the #MeToo Era CLE Credit: 1.0 Lisa Bloom, The Bloom Firm, Woodland Hills, California With a simple tweet, a movement was born. #MeToo brought the prevalence of sexual harassment and assault out of the darkness and into the light of day. Join civil rights attorney Lisa Bloom, known for representing women whose sexual harassment claims precipitated the firing of Bill O'Reilly fromFox News, p.m. as she discusses her experiences representing victims of sexual harassment and assault, as well as the #MeToo movement and its legal implications.

IS BACK FOR THE 2018 Annual Convention Thanks to the generosity of Casemaker, our app will again be available for the 2018 Annual Convention. The app allows attendees to view the convention agenda, access materials for programs, view maps for events and receive up to the minute notices on any event or programming changes. Make sure to download it on day one and stay up to date throughout the three day event! More information on the app coming soon.

MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 18 Ways to Register

Mail registration form(s) & payment to: Visit our website at Kentucky Bar Association www.kybar.org www.kybar.org and Attn: Accounting Department select Annual Convention KBA 514 West Main Street Kentucky Bar Association for full registration details. OR Frankfort, KY 40601-1812 Online registrants will receive a registration confirmation Registration confirmations for registrations received by mail will be at the email address provided on the registration form. emailed to the email address provided or your official KBA email address.

MAY Register by May 15 to receive a discount! Advance reservations for all Discount does not apply to the One Day or Half Day optional events are recommended. attendance fees and is not valid with any other discount.

Reservation $ .00 per night HOTEL Information 155 plus tax Book directly with the hotel by May 22 to receive the Hyatt Regency Lexington special group rate. After this date, room reservations 401 West High Street will be taken on a rate and space availability basis.

Call (800) 233-1234 or visit https://aws.passkey.com/go/KYBarAssn2018 to make a reservation. Cancellations must be received 48 hours prior to the arrival date for a full refund. All reservations must be guaranteed by an individual credit card.

Cancellation of Registration: Parking Cancellation of 2018 Kentucky Bar Association Annual General Parking Convention Registration must be in writing and received The Lexington Center parking lot on West High Street. by the Kentucky Bar Association by June 1, 2018, to receive a full refund. Cancellations received between June 2, 2018, All Day: $10 | Each Half Hour: $1 and June 8, 2018, will be charged a $50 administrative fee. Parking is on a first-come, first-served basis. There will be no refunds on cancellations received after June Arena event days parking fees vary. 8, 2018. Event tickets will not be refunded after June 8, 2018. Overflow parking is available in the Manchester lot. Upon arrival, all registrants should check in at the KBA Handicapped Accessible Parking Registration Desk located in the Bluegrass Ballroom Designated handicapped parking is available in Lexington Pre-function area of the Lexington Convention Center. Center’s High Street and Manchester Street parking lots. A valid state-issued handicapped placard or license plate is Registration Center Hours: required. Disability parking is on a first-come, first-served basis. Wednesday, June 13th : 7:00 a.m.–5:00 p.m. th Metered Street Parking Thursday, June 14 : 7:00 a.m.–5:00 p.m. Friday, June 15th : 7:30 a.m.–2:00 p.m. Parking meters are enforced Monday-Friday from 8 a.m. - 5 p.m., unless otherwise posted. 60 Minutes: $1 | 15 Minutes: 25¢ Contact the Membership Department at (502) 564-3795 for any disability accommodations or dietary restrictions. Meters accept nickels, dimes, quarters, and some accept payment via credit card or pre-paid parking cards. For more information on metered street parking visit http://www.lexpark.org/find-parking 19 2018 KBA ANNUAL CONVENTION MORE THAN A LAWYER KBA Membership Number:

Registrant First and Last Name:

Name for Badge:

Spouse/Guest First and Last Name:

Guest Name for Badge:

Email Address: JUNE 13  1 5, 20 1 8

Business Phone: Check if you are: Judge Speaker Type of CLE Materials (choose one): Printed Book PDF Download Section Meeting Registration BY BY AFTER Select One May 15 June 9 June 9 Fees: Open to Current ection embers Only New Lawyer Program Attendee Complimentary Pre–registration for section meetings is required. Please check the section meeting(s) you will KBA Member $370 $420 $470 $ attend. Annual section meetings are open only KBA Member with current CLE Award $270 $320 $370 $ to current dues paying section members. Anyone registering for a section meeting who does not Young Lawyers Division Member $220 $270 $320 $ belong to that section will not be signed up to attend the meeting. To view your current section $270 $320 $370 Full Time Government $ membership, log in to our website and click on In-State Speaker/Convention Committee $170 $220 $270 $ “My Proﬁle” to view your section membership located on the left hand side under Groups. KBA Senior Counselor Complimentary Tuesday, June 12: 5:00p.m.— 6:00p.m. Non-Member $470 $520 $570 $ Senior Lawyers Section Wednesday, June 13: 4:45p.m.— 5:45p.m. 1 Day Attendance Only Wed Thurs Fri $270 $270 $295 $ Animal Law Section 1/2 Day Attendance Only Wed Thurs Fri $170 $170 $195 $ Bankruptcy Law Section Business Law Section Civil Litigation Section Registration Fees Subtotal: $ Criminal Law Section Family Law Section Number Cost Fees: Labor Employment Law Section Event Tickets of Tickets Probate Trust Law Section Wednesday: Kick-Off Event Complimentary Public Interest Law Section Thursday: YLD Luncheon $20 /person $ Taxation Law Section Thursday, June 14: 5:00p.m.— 6:00p.m. Bench & Bar and Complimentary ADR Section YLD Joint Reception Appellate Advocacy Section Annual Banquet $65 /person $ Construction Public Contract Law Section Education Law Section Friday: Membership Luncheon $30 /person Elder Law Section $ Environment, Energy Natural Resources Subtotal: Law Section Please consider making a tax deductible donation to $ Euine Law Section Kentucky Refugee Ministries ($10 recommended donation) Health Care Law Section Immigration Nationality Law Section Total Fees to Accompany Form: $ LGBT Law Section Local Government Law Section Make check payable to the Real Property Law Section Small Firm Practice Management Section Kentucky Bar Association and mail to: Or log in to the KBA Website at www.kybar.org/2018ac to pay Kentucky Bar Association, Attn: Accounting Dept. Please withhold my name 514 W Main St, Frankfort, KY 40601-1812 by credit card. All major credit cards accepted. from convention vendors.

By registering for the Kentucky Bar Association's Annual Convention, all attendees, instructors and exhibitors acknowledge they may be photographed during the convention. Please be aware these photos are for the KBA’s use only, and may appear in the Bar’s programs, publications, e-newsletter, website, and other materials. Your attendance constitutes permission and consent for this photography and subsequent usage. MORE THAN A LAWYER 2018 KBA ANNUAL CONVENTION 20 COLUMNS

join the young lawyers division at the kentucky bar association annual convention by: eric m. weihe

ach year, the Kentucky Bar Association (“KBA”) puts on a On Thursday evening, June 14, the YLD and Bench & Bar Joint top notch annual convention, at which lawyers from around Reception will take place at the Lexington Convention Center. Join Ethe Commonwealth gather for continuing legal education the YLD for complimentary appetizers and drinks at the reception, programs, networking, and fun. This year’s Annual Convention is while enjoying the company of other convention goers. being held in Lexington, The Horse Capital of the World, from June 13-15, 2018. For those who are members of the YLD, you can get a $150 discount on your registration for annual convention. If you are not a The Kentucky Bar Association Young Lawyers Division (“YLD”) YLD member, but you would like to be a member (assuming you is always very active at the annual convention, and this year is no are eligible), please visit www.kbayld.org and join the YLD today different. for only $20.

The YLD will be sponsoring 10 continuing legal education pro- In addition to its sprawling horse farms and general Southern grams at the KBA Annual Convention covering a wide range of charm, Lexington has recently been recognized as one of the Top topics. The topics are sure to interest lawyers young and old, so be 30 Most Exciting Food Cities in America by Zagat. So, in addi- sure to check out the YLD’s programming. tion to the scheduled programming and events taking place at the convention, there are many places to visit and things to do in and Additionally, at noon on Thursday, June 14, the YLD will be around Lexington that are sure to make your attendance at the hosting its annual luncheon. All KBA members and guests are annual convention worthwhile and memorable. invited to attend the luncheon. At the luncheon, the YLD will honor recipients of the 2018 Outstanding Young Lawyer Award, I HOPE TO SEE MANY OF YOU IN LEXINGTON FOR WHAT the Service to Young Lawyer Award, and the Young Lawyer Ser- IS SURE TO BE A GREAT TIME! vice to Community Award. We will also recognize the winners of the 2018 Legal Food Frenzy competition. We are fortunate and honored to have Kentucky Attorney General Andy Beshear serve as the keynote speaker at the luncheon. Attorney General Beshear will also be presenting the prestigious Attorney General’s Cup to the law firm or legal organization that raises the most overall total pounds in the Legal Food Frenzy competition at the luncheon.

ATTORNEY GENERAL DONATIONS COLLECTED CUP AWARDED TO THE MARCH 15 – APRIL 2, 2018 WINNER ON JUNE 14, 2018

42 | MARCH/APRIL 2018 COLUMNS

PRACTICE MAKES CHASE GRADUATES PERFECT JOB CANDIDATES

hitley Bailey made her The practice experience for Ms. Bailey was a thread that tied Wfirst solo court appear- together classroom work and employment after graduation. “I was ance about 16 hours after she able to customize my learning experience to develop skills related had been sworn in as a lawyer to my future,” she says. “No classroom experience can prepare a by the Supreme Court of Ken- student for the serious, life-altering application of law; a student tucky. And she was prepared for has to be face-to-face with a client in an office or courtroom.” Now it. The reason: She had court- she applies the law as an associate in the W. Jeffrey Scott firm. room experience in the Semester in Practice program at Chase “The experience I had in the courtroom and interacting with attor- College of Law when she was neys and judges made me more comfortable when beginning to a student. practice on my own. I began my career as an attorney by attending court, on my own, approximately 16 hours after I was sworn in Semester in Practice is just what before the Kentucky Supreme Court. The familiarity and confidence Whitley Bailey is an associate in the W. the name suggests, a semester in I experienced at my first lone court appearance can be attributed Jeffrey Scott law firm, in Grayson, where which students leave the tradi- only to the experiences afforded through the Semester in Practice she participated in the Chase Semester in tional classroom to practice law program,” she says. Practice program as a student. under the supervision of lawyers and judges. About 20 percent of students in the program during a final year of law school transition to full-time employment after graduation at For Ms. Bailey, who graduated in 2016, that semester involved their previous placement, as Ms. Bailey did, says Professor Kinsley. general-practice matters in the law firm of W. Jeffrey Scott, a “This alleviates the ramp-up period that occurs when students begin Chase alumnus, in Grayson. “I worked in defense of an $87 mil- working in a new office after the bar exam, and allows students to lion bankruptcy adversary claim against former corporate officers. literally hit the ground running once they graduate.” I participated in a criminal jury trial, and proposed questions to my supervisor that were asked of witnesses. I attended domestic Students in the program work 200 to 600 hours for up to 12 hours relations hearings and prepared a variety of pleadings,” she says. of graduation credit, and may or may not be enrolled in other courses at the same time. The Semester in Practice program places students in law firms, legal departments, judicial chambers, or just about any place law- Entities interested in being considered for placement yers work and students can get substantive experience, in Kentucky opportunities for Chase students may complete a and elsewhere. Some skills they develop – such as interviewing clients and preparing motions – are obvious for lawyers. Others registration form available at nku.edu/chaselaw are more subtle. on the “externship” page and submit it to Professor Jennifer Kinsley, director of experiential learning, “As part of an online seminar, students focus on the so-called soft skills that legal employers report are the single most critical 507 Nunn Hall, Northern Kentucky University, Highland factor for success as young lawyers,” says Professor Jennifer Kins- Heights, KY 41099 or by email to [email protected]. ley, director of experiential learning who supervises Semester in Practice. “For example, students participate in an active listening assignment in which they rate their listening skills across a variety of factors, and then practice improving their listening skills in their real-world placements.”

BENCH & BAR | 43 THE WAIT IS OVER! COLUMNS See Page 22 for Convention Details

and director of an international develop- helps build a strong law school. Of course, ment center for undergraduate and graduate this is a mutual relationship. Brandeis is also students. distinctive because of the strong commitment to working in the community. This is Here, he shares a bit about what he admires such an important value in a law school and about the Brandeis School of Law and his I think it is especially important in a state hopes for the school in the changing land- school. My best teaching experiences have scape of legal education. been at state schools. I’m pleased and proud WHAT ATTRACTED YOU to be able to carry on that mission here. TO BRANDEIS? WHAT DO YOU SEE AS OPPOR- Kentucky was attractive to me, first, for TUNITIES FOR GROWTH AT THE family reasons. My father was from west- BRANDEIS SCHOOL OF LAW? ern Kentucky. Although I spent most of my I think this school could be more out- childhood school years in Denver, where I ward-looking, more international in its was raised, we visited a little and he talked outlook. Commerce today is global. You can constantly of Kentucky and its appeals. I be based in a commercial city like Louisville, knew this is a special place. Also, I find the and you can be working with other coun- city of Louisville beautiful and livable. tries. We can deliver student experiences that prepare for that. Then the Brandeis name is very appealing. I think Louis Brandeis, especially in these I also think there are some faculty strengths polarized political times, is an interesting that may not be so evident to the outside figure because he doesn’t neatly fit in to our world. I’d like to try to package those to current conservative or liberal categories. emphasize what we have to offer. These He was a nuanced and complicated person strengths include business and commercial and thinker. The thought of being associ- law, intellectual property law and commu- ated with a school that tries to channel that nity development-related subjects. It is n January, Colin Crawford began his inheritance of intellectual energy and moral important to emphasize our strengths and tenure as the Brandeis School of Law’s th integrity was a powerful draw for me. specialties in today’s legal market so as to I24 dean. WHAT DO YOU SEE AS give students a sense of what training a stu- He’s a new face at the University of Lou- SOME OF THE LAW SCHOOL’S dent will earn at Brandeis. isville, but he’s no stranger to the demands STRENGTHS? Finally, I’d like to help promote a robust of a university administrator — or to Ken- My immediate predecessors, Deans Susan intellectual environment on campus. At tucky, where his father’s family has roots. Duncan and Lars Smith, left the school in many schools, students have little connec- His father was born and partially raised in a strong position. Their steady leadership tion to the scholarly part of legal life. But Corydon, in Henderson County. speaks well for the school’s collegiality and I believe law students benefit from under- Crawford’s own career, however, has taken commitment to a strong future. Given the standing that ideas power the law and result him far from western Kentucky, landing challenges of the last few years, this was in legal change and that we’re in a profes- him at assorted spots across the country no small feat. But they put the school on a sion that promotes debate about principles and around the world, from New York to steady path financially and in terms of stu- and values and ideas, and how to make them San Diego, with many stops in between. He dent body growth. I’m very grateful for that. concrete to change people’s lives. At this brings a distinct international perspective to time of intense political and social polar- My interactions with staff and with faculty ization, the function of law schools as fora Brandeis Law; he speaks three languages —not just at Brandeis but within the uni- and has lectured and taught in several coun- for debate and discussion has never been versity—have been positive. This is a place more important. tries, including Brazil, China, Colombia, where our stakeholders are committed to Cuba, the Dominican Republic, Germany, the school’s success. Since my arrival I’ve Of course, everything I say here is con- Japan, Panama and Spain. also been impressed by the strong facul- ditioned upon having the support of the A graduate of Harvard Law School, ty-student bond. I’ve taught at several other alumni, faculty and students. The school Crawford is a self-described academic law schools, and I have never experienced a does not bear my name. It bears the name of entrepreneur with scholarly interests in place where the faculty are as dedicated to one of our most celebrated Supreme Court environmental, urban development and giving highly personal, one-on-one atten- justices and of the city where he was born land-use issues. tion to students. and raised. My goal is therefore to serve the Brandeis legacy in the 21st century, and to He comes to Brandeis Law from Tulane Louisville has a strong, friendly and close- help ensure that the law school remains an University, where he was a law professor knit business and legal community. That integral part of this dynamic, appealing city.

44 | MARCH/APRIL 2018 COLUMNS

BY: WHITNEY HARDER

uch like University of Kentucky College of Law stu- opportunity to do so,” he responded. To “let the people chart their Mdents, former U.S. Attorney General Eric Holder, the first own course.” African American to hold that office, saw law as a way to make an impact. Earlier in the day, Holder also met with UK Law’s Black Law Students Association (pictured above) and members of the local “Through law and working through the system I thought I could John Rowe Chapter of the National Bar Association at a luncheon be a force for change,” he said Tuesday evening on campus. celebrating Black History Month. In addition to recognizing Hold- er’s achievements, the groups also recognized trailblazers in the Holder spoke to a crowd of UK students, faculty, staff and alumni as local legal community. well as community members in Memorial Hall. Former Kentucky Gov. Steve Beshear was also in attendance. Holder’s visit was part “We were honored to have Mr. Holder in the heart of the Bluegrass of the College of Law’s Roy R. and Virginia F. Ray Lecture Series. and appreciated him taking the time out of his busy schedule to meet our students and share his experiences,” said UK Law Dean Lawyers, among others, have been at the forefront of movements David A. Brennen. that made this nation great, he said. Building on Theodore Parker’s words that were often echoed by Holder weighed in on current issues and shared his experiences as Martin Luther King Jr. — “The arc of the moral universe is long, a law student, a black man in the profession and attorney general. but it bends towards justice” — Holder left the audience with this Having served in government for more than 30 years, Holder also final thought: shared what shaped his view of government. It was something familiar to all law students: the study of constitutional law.

“It’s history through a legal prism,” he said. “You can chart the progress of this nation through an understanding of constitutional law — how the system acted appropriately or inappropriately.”

Holder served for six years as the 82nd attorney general of the United States under former President Barack Obama. Since leaving the Justice Department, he has rejoined the law firm Covington & Burling LLP as a partner advising clients on complex investigations and litigation matters. He is also spearheading an initiative focused on gerrymandering and redistricting.

During the talk, the moderator, UK Law Prof. Melynda Price, posed a question from UK Law students about this work going forward and Holder’s ultimate goal.

“To make sure everybody who wants to cast a ballot has the

BENCH & BAR | 45 EFFECTIVE LEGAL WRITING

any smart lawyers and law students are proofreading sin- possessive, exactly like its agents in the first sentence, but in ners. Lawyers are professional writers. Clients and judges contrast to other possessives, it does not take an apostrophe. Mhold lawyers and their legal writing to a high standard. Misplaced apostrophes are distracting because they make the Through developing proofreading strategies, lawyers can recognize writer look dumb or lazy, which is surely not the impres- the errors of their ways in legal writing and develop strategies to sion you’re hoping to make. Do make time to proofread overcome proofreading errors. your work before it goes out, because no other step in the writing process will do more to enhance your credibility as Seeing the errors in our ways is harder than it sounds. Proofreading an advocate. . . . 5 is difficult for any writer because the writer’s brain tricks the writer into reading what he or she expects to see. The brain fills gaps and In another case, a lawyer petitioning the court for attorney’s fees leaps to conclusions about words, letters, symbols, and numbers.2 misidentified the court as “THE UNITED STATES DISTRICT COURT FOR THE EASTER [sic] DISTRICT OF PENNSYL- Effective proofreading is likely even more difficult for lawyers than 6 for other professional writers. Lawyers live with their clients’ prob- VANIA” throughout the litigation. The judge was not amused and lems for so long, that lawyers’ brains subconsciously change what halved the attorney’s requested fee. The attorney responded with is on paper to whatever lawyers expect to see. continuous errors, including this gem: “[H]ad the Defendants not tired [sic] to paper Plaintiff ’s counsel to death, some type [sic] would not have occurred. Furthermore, there have been omissions As difficult as some errors are to catch, proofreading mistakes cause 7 big problems for lawyers. They distract the reader from the law- by the Defendants, thus they should not case [sic] stones.” yer’s message. They also cause the lawyer to lose credibility and reputation. A recent letter penned by Judge Roy Moore’s attorney Lawyers do not want to be known for mistakes. They want to be is a cautionary example of how not to write a demand letter. The known for their legal acumen. Getting the message across in a letter attorney and his letter, replete with sloppy errors, were mocked all full of proofreading errors is compared to “trying a case while wear- over the internet. 3 The following is a short excerpt from the letter.4 ing a gorilla suit: Who can pay attention to the factual substance under the hairy surface?”8 Note that your client, to include its agents, have a duty to preserve and maintain evidence. We do, thus, demand that The best way for a lawyer to minimize errors is to “go out of mind” you preserve and protect any potential evidence. Refusal or when proofreading. One of the most effective ways to proofread failure to do so could result in a legal presumption that the “out of mind” is to use a proofreading buddy who reads a hard spoliated evidence was adverse to you, your company and copy of the document while the lawyer reads out loud from the it’s interests. original. Fresh eyes spot typos, spelling errors, apostrophe misuse, and punctuation errors that the writer cannot see. The person with One tongue-in-cheek critique of the letter offered the following distance from the client’s legal issue is truly out of the writer’s mind. suggestion to Roy Moore’s lawyer: Nice use of spoliated in a sentence — that actually is a word Most lawyers do not have a person in the office to proofread every (although some of us believe it shouldn’t be). The big prob- piece of legal writing. Also, the buddy technique is not always lem here is number agreement . . . . You’ve also got a bad practical, given lawyers’ time pressures and workloads. The lawyer case of surplus-wordia. What’s easier to read: “We do, thus, also makes the final call about editing and proofreading because demand” or “We demand”? Think about it. Finally, note the the lawyer knows exactly what he or she means to say. Although misplaced apostrophe in the final sentence: Its interests is the lawyer must develop an individual strategy that works, here are proofreading tips to help the solo proofreading lawyer see errors.9

46 | MARCH/APRIL 2018 • Give yourself some distance. Wait at least a day or more • Slowly read out loud, record, and play back, if after finishing the draft before proofreading. Hopefully, possible. Slowly reading out loud may help the lawyer you will forget some of what you wrote so you will not detect missing words, incomplete sentence, and other know what to expect to read on the paper or computer. writing sins. This process takes the reader’s mind out of what he expects to see on paper or on the comput- • Make technology your friend and run spell-check. Those er screen. In addition, the reader gets to hear how the colored, squiggly lines spell-check generates on the draft words sound together. mean something important Spell-check does not catch all errors, but it is a good start. • Read the document multiple times, focusing on a distinct task each time. It is difficult to concentrate on • Proofread in addition to using spell-check on the com- content, grammar, spelling, punctuation, and citation all puter. Spell-check will not catch mistakes like “statue” at once. Slow it down and trick the brain. For example, for “statute,” “it’s” for “its,” “there” for “their,” “to” for “too,” highlight only citations in yellow on one read through. or citation errors. Nor will it catch misspellings of a Circle punctuation on a separate read through if you client’s name. If the lawyer has a history of making such have a history of making errors. errors, the lawyer might find it helpful to use “control” “F” on the computer as a double check. • Jump around. Begin near the beginning, near the end, and in the middle of the draft on separate reads. The • Proofread on a hard copy that can be marked up, in goal is to trick the brain into thinking it is looking at a addition to proofreading the document on the computer different document than the one you wrote. screen. The proofreader has many advantages when reading on a computer screen because he or she can • Check for consistency. For example, make certain that alter the text’s font size, color, or style. Altering the way the same term is capitalized or hyphenated throughout. the document looks tricks the brain into thinking it is Make certain that quotation marks or parenthesis are not seeing an unfamiliar document. A font can be enlarged mismatched, with an unclosed mark at the beginning or 470% on the lower right-hand side of most computer end of the quotation or parenthetical. screens, which is a huge help to the proof reader’s eyes. But most of us learned to read on paper, and for many • Review titles and headings separately. Titles and head- lawyers, there is no substitute for a hard copy of a long ings are placed in a high position of emphasis in legal document that the lawyer can mark up in red pen. documents. Computer spellcheck features often do not catch errors in headings. • Proofread in multiple, short blocks of time. In a long document, do not proofread the entire text in one sitting • Read backwards. Trick your mind into seeing spelling as you will not be able to focus your mind enough to errors by reading the last word on the last page to the trick your mind and catch errors. beginning. Because the content won’t make sense, your mind will not be distracted from the task of proofreading.

ENDNOTES

1. Professor Jennifer Jolly-Ryan teaches writing at Salmon P. Chase College 4. Karin Ciano, Legal Writing Notebook: Roy Moore’s Lawyer Advised to of Law, Northern Kentucky University. She was a law clerk for Judge S. Proofread, Minnesota Lawyer (November 30, 2017), http://minnlawyer. Arthur Spiegel of the United States District Court, S. D. of Ohio. She com/2017/11/30/legal-writing-notebook-roy-moores-lawyer-advised-to- practiced law with Dinsmore & Shohl and Jolly & Blau before joining the proofread/. law faculty. Thanks to Sean Ryan for his perspectives as an associate attor- 5. Id. ney and judicial law clerk. He practices with Frost Brown Todd and clerked 6. Andrew Jay McClurg, Letz Here it for Juge Jakeup Hurt of the Oster Disstrict for United States District Court Judges, Honorable Gregory Stivers, W. of Pensylvinia!, Lawhaha (Nov. 27, 2011), http://lawhaha.com/letz-here- D. of Ky. and Honorable Lisa Godbey Wood, S. D. of Ga. I also thank my it-for-juge-jakeup-hurt-of-the-oster-disstrict-of-pensylvinia/. proofreading buddies, Chase law students Jeff Rosenberger and Marchesa 7. Id. Peters. 8. Ciano, supra note 4. 2. People continually take sensory messages and subconsciously change 9. Anne Enquist & Laurel Currie Oates, Just Writing (4th ed. 2013) them to what they expect to see. See generally Kathryn Schultz, Being contains great suggestions on how to proofread and on most grammar Wrong: Adventures in the Margin of Errors (Harper Collins 1st topics in general. Other proofreading ideas in this article are from the ed., 2010). following sources on the internet: Ivy B. Grey’s Legal Writing: Five-Step 3. See Joe Patrice, Roy Moore’s Lawyer Pens Demand Letter as Embarrassing as Checklist for Better Editing and Proofreading, available at http://www. his Client, Above the Law, https://abovethelaw.com/2017/11/roy-moores- intelligentediting.com/resources/legal-writing-five-step-checklist-for- lawyer-pens-demand-letter-as-embarrassing-as-his-client/ (Nov. 15, better-editing-and-proofreading/; and the University of North Carolina 2017). See also Debra Cassens Weiss, Roy Moore’s lawyer threatens website Writing Center, available at https://writingcenter.unc.edu/tips-and-tools/ with ‘utterly incoherent’ letter, ABA Journal (Nov. 16, 2017), http://www. editing-and-proofreading/. abajournal.com/news/article/roy_moores_lawyer_sends_utterly_incoher- ent_letter_to_website/.

BENCH & BAR | 47 SHOP TALK COMING ATTRACTIONS: Support for Your LAW PRACTICE on KEY ISSUES at the KBA ANNUAL CONVENTION BY: MICHAEL LOSAVIO

There are number of other interesting and he Kentucky Bar Association task Pieroni will review these issues as to the useful programs. I, alas, might personally forces on the state of legal prac- proper use and misuse of social media, a benefit from the Medicare discussion. Ttice in Kentucky and the future of pervasive influence that must be managed All of us might consider the session on legal practice support efforts to help the by any lawyer. “Rebuilding Law For a Practical Society,” bar with both. The competitive pressures given a sense of disunity in our Republic. today may be greater than ever, and that NEW BUSINESS/ADMINISTRATION- And, at the least, you can build up your impacts our practice and our health. The Leah Bennett and Louis Waterman will ethics credits for the coming year with the Thompson Reuters 2017 State Of The US present techniques for addressing the discussion of the media lawyer career of Small Law Firms Survey1 again found that exceptionally difficult subject of “Difficult, Saul Goodman. It examines his legal life the top three challenges for small law firms Impaired Or Abused Clients: How to Rec- from law school as Jimmy McGill fight- continue to be: ognize and Handle.” Both in developing ing for his low income clients to the drug acquiring new business and handling the relationship, lawyer maven of “Breaking Bad.” Its repre- 1 new business; tools for identifying and helping damaged sentation of how society may see law in our and difficult personality types will help you modern world is worth discussion, Faustian spending too much time with the case, and help you help that client. bargain or not. 2 on administrative tasks; NEW BUSINESS/ADMINISTRATION- There are significant challenges for today, the increasing complexity And when client management is simply not and for the future. These sessions will help 3 of technology. possible, you may consider follow-up in the address some of those challenges. If you session “From Zealous Representation to would like to share your thoughts on this, Continuing Legal Education is one tool Threat Assessment: Identifying When a please email me at [email protected] to reach and help attorneys with these Client becomes a Threat.” Sharon Muse ABOUT THE AUTHOR issues. The Kentucky Law Updates this will discuss the indicators to alert you to an MICHAEL LOSAVIO past year addressed these key issues with escalating danger from a client, lessons she teaches “Creating and Growing Your Law Prac- learned from being kidnapped by a former in the Department of Jus- tice” and “Technology for Lawyers: What client. This may be a bitter acknowledg- tice Administration and the is My Ethical Duty and What Do I Need ment of today’s environment, but it is a Department of Computer to Know?” necessary one. Engineering and Computer Science at the University of This year’s annual convention will have pro- PRACTICE- This is a shout out to the Louisville on issues of law, society and gramming that can also help. always amazing Judge Julia Adams and her information assurance in the computer colleagues Sarah McKenna and Sarah Mat- engineering and justice administration NEW BUSINESS/TECHNOLOGY- The tingly on insights and practices for better disciplines. session on social media and legal ethics results in negotiations, and the dynamics ENDNOTES will get you your ethics credit, keep you ranging from the interest of the opposing out of ethics trouble, help you understand side to the expectations of clients. Good 1. 2018 State of US Small-cap law Firms Study, Thomson Reuters, https://static.legalsolutions. the technology of social media for practice negotiation can reduce the time and stress thomsonreuters.com/static/pdf/S054373_ and help you understand it for business in resolving matters: good for the client, State_of_Small_Law_Study.pdf accessed generation. Matthew Barszcz and Caroline good for the lawyer. February 27, 2018.

48 | MARCH/APRIL 2018

FUTURE OF LAW PRACTICE USING TECHNOLOGY TO BRAND YOURSELF and ADVANCE YOUR CAREER Abstract: Social media makes it easier than ever to promote your firm and personal brands. BY: ROBERT A. YOUNG

n her book “Personal Branding in One Hour for Lawyers,” I quickly learned that I needed to be familiar with how to market my author Katy Goshtasbi tells attorneys how they can highlight practice, and the technology required to do so. It became immedi- Itheir unique talents and stand out from their fellow practitioners. ately important that to develop “my brand,” I needed to understand She notes that these distinctions lead to more jobs, promotions, search engine optimization. This required familiarity with marketing clients and referrals for these attorneys. If you are a new law school through Google, Facebook, Twitter and LinkedIn. graduate or a young attorney trying to promote yourself, your goal should be brand yourself not only outside the firm to attract clients, REACH MORE PEOPLE THROUGH SOCIAL MEDIA but also inside the firm to attract work from other lawyers. For the last several years, I have made a concerted effort to use tools such as Facebook, Twitter and LinkedIn to connect with prospective Having served several years as managing partner of my firm, the clients and increase word-of-mouth referrals. I also familiarized word “branding” has taken on many forms. The first time I brought myself with search engine optimization and how it impacts searches the term up at one of our partner lunch meetings, many of my part- made by prospective clients. As a plaintiff ’s personal injury lawyer in ners blankly stared at me as if I were speaking a foreign language. a primarily insurance defense and corporate law firm, social media Shortly thereafter we decided to hire a marketing consultant to has allowed me to reach a group of old friends and potential clients change our firm logo, develop a new website and delve into the who otherwise would not have known that my practice centered social media world for the first time. This was our first attempt to around representing consumers in medical malpractice, pharma- brand our firm. ceutical and medical device cases. It also allowed me to reach out to a group of lawyers to inform them of my areas of practice. Finally, Although I had been practicing several years, I dug deep and I no longer need to answer that question, “What type of law do decided that I also needed to brand myself. I was born and raised you practice?” in my community, and had always practiced at the same firm, but found myself answering the question over and over from family and friends: “What type of law do you practice?” I finally figured out that it was my fault that they did not know the answer. If my family and friends didn’t know what type of law that I practice, then prospective clients had no idea.

50 | MARCH/APRIL 2018 THE WAIT IS OVER! See Page 22 for Convention Details

If you are an attorney who hasn’t turned to social media as part of That list includes two great tips for in-house marketing. First, find your business development, consider the following. As of Septem- out what your firm is doing in terms of marketing and business ber 2017, market leader Facebook was the first social network to development, and get involved. If you’re a strong writer, volunteer surpass 1 billion registered accounts, and currently has 2.06 billion to research and write articles for your practice group newsletter. If monthly active users. LinkedIn boasts 467 million accounts, with your practice group doesn’t have a newsletter, maybe you should 106 million of those active users. As of the third quarter of 2017, start one. It would be a great source of data to include in your social Twitter averaged 330 million monthly active users. media feeds to also help brand yourself outside the office. Remsen also recommends to “be the go-to associate for partners who are Having social media accounts isn’t enough. To be effective, you must involved in your area of interest.” “If you’re still unsure of what type be active, as with any other type of business development. Accord- of law sets you on fire, research legal trends,” he recommends. Find ing to a recent survey of the ABA Legal Technology Resource your niche early and use it to your advantage. For young lawyers, Center, more than 70 percent of respondents reported that they use the best source of business will always be from the other lawyers in social media for career development and networking. The problem, your office, especially if they have the confidence that you are up to however, is that when asked whether using social media produced date in a specific subject matter. actual clients, more than 21 percent didn’t know the answer. The reason for this may be that, according to the survey, only 16 percent For a firm or an individual, developing a brand takes a great deal of of lawyers participate regularly in social media, and the longer a work. But the alternatives are to accept whatever label you’re given, lawyer has practiced, the less likely he or she will use social media. or worse, have friends and relatives ask you repeatedly, “What type As with other forms of business development, effort results in cli- of law you practice?” Branding yourself or your firm won’t ever be ents. Not taking the time from your busy practice to market your simpler or cheaper than it is today with the right technology—and brand and skills results in clients heading elsewhere. there’s no time like right now to get started.

In my 27 years of practice, I have concluded that the best business development centers around the tremendous relationships I’ve been ABOUT THE AUTHOR fortunate to be a part of during that time. In-person meetings or Robert A. Young is the managing partner telephone conversations once developed those relationships. Now, of English Lucas Priest & Owsley, LLP in most of the time I spend with current, former and potential clients Bowling Green, KY, and is a former chair is through social media. With computers and mobile devices, these of the ABA’s Law Practice Division. Follow sources of business are literally at my fingertips. I can “like” a family him on Twitter @BobYoungELPO. picture they post on Facebook, or I can comment on a milestone anniversary they are celebrating or an accomplishment of their ©2018. Published in Law Practice Today, January 2018, by the American Bar child. Think about when others “like” one of your Facebook posts Association. Reproduced with permission. All rights reserved. This information or make a comment that makes you feel good. Don’t you want to do or any portion thereof may not be copied or disseminated in any form or by any business with these folks, no matter their trade? I know that I do. means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder. How does developing this niche and brand translate into clients? Various studies indi- cate that clients hire specialists, instead of general practitioners. Think about how you search on the internet. If you were looking for medical help, you search for the area of expertise of a physician. If it’s a heart issue, you want a cardiologist—not a neurosur- geon. People look for attorneys in much the same way. They want someone with experience in their type of case. DO YOUR HOMEWORK For younger lawyers who are still trying to develop that niche, also focus on getting work from others within your office. John Remsen runs the Managing Partner Forum in Atlanta, Georgia. He has a top 10 marketing tip list for young attorneys, chock full of helpful advice.

BENCH & BAR | 51 BAR NEWS summary of minutes kba board of GOVERNORS MEETING NOVEMBER 17, 2017

he Board of Governors met on Friday, Nov. 17, 2017. Officers • Justice Michelle Keller delivered a report on the and Bar Governors in attendance were, President W. Garmer; progress being made by the recently reformed Access TPresident-Elect D. Ballantine; Vice President S. Smith; Imme- to Justice Commission. She introduced Glenda Har- diate Past President M. Sullivan; Young Lawyers Division Chair E. rison, the new executive director, and Nan Hanley, Weihe and Young Lawyers Division Chair-Elect J. Overmann. Bar director of communications. Governors 1st District – F. Schrock, V. Sims; 2nd District – J. Meyer, T. Kerrick, 3rd District – H. Mann; 4th District – A. Cubbage, B. • Young Lawyers Division (YLD) Chair Eric Weihe Simpson; 5th District – M. Barfield, E. O’Brien; 6th District – G. reported on the following activities of the division: Sergent, T. McMurtry; and 7th District – R. Blackburn, J. Vincent. social events at the KLU programs, presenting the Bar Governor M. Dalton was absent. “A Road Less Travelled” program at the law schools, update on the 2018 Legal Food Frenzy and YLD’s In Executive Session, the Board considered one (1) oral argument, involvement with the 2018 ABA YLD Spring Con- four (4) default disciplinary cases and one (1) restoration case. Judy ference to be held in Louisville on May 10-12. McBrayer Campbell, Frankfort, Dottye Moore of Elizabethtown • Approved the reappointment of John F. Reesor of and Dr. Leon Mooneyhan of Shelbyville non-lawyer members Louisville for a three year term ending on Dec. 31, serving on the Board pursuant to SCR 3.375, participated in the 2020 to the KBA Audit Committee. deliberations. • Approved the reappointment of Margo L. Grubbs of In Regular Session, the Board of Governors conducted the fol- Covington to a three year term ending in December lowing business: 2020 to the Bar Center Board of Trustees. • Approved the reappointment of Clark C. Johnson of • Heard a status report from the 2018-2019 Budget Louisville for a second four (4) year term ending on & Finance Committee, KYLAP Task Force, Rules Dec. 31, 2021, and the appointment of Leslie P. Vose Committee and Task Force on Judicial Evaluations. of Lexington for a four (4) year term ending on Dec. • Probate & Trust Law Section Legislative Chair Wal- 31, 2021, to the Joint Local Federal Rules Commis- ter R. Morris, Jr., presented a package of legislative sion. proposals and requested permission to present them • President William R. Garmer reported that he plans to the Legislature with the endorsement of the sec- to assemble a full meeting of the Legislative Out- tion in accordance with the KBA Legislative Policies reach Committee in Frankfort for breakfast at the and Procedures. Administrative Office of the Courts and then pro- • Kentucky Public Defender Damon Preston and Jer- ceed to the Legislature to discuss prioritizing funding ry Cox, chair of the Public Advocacy Commission, of the judicial system. delivered a report on Kentucky’s statewide public de- • President Garmer announced that the 2018 Annual fense system on behalf of the Department of Public Convention logo has been selected and the theme of Advocacy. the convention will be “More than a Lawyer.” Several • Approved Ethics Opinion E-442 as a formal opinion speakers are lined up to present including Graham regarding email communications when using the “re- Moore, author of historical fiction novel The Last Days ply all” option. of Night, which covers the electricity wars fought over a century ago between rival inventors Thomas Edi- • Approved Ethics Opinion E-443 as a formal opinion son and George Westinghouse. A movie based on the regarding client confidentiality in firm mergers and novel is set to debut next year. lateral transfers. • President Garmer announced that the KBA will host • Approved Ethics Opinion E-444 as a formal opinion its first Bar Leadership Conference set to take place regarding issues of prosecutors with a part-time civil on April 13, 2018, in Lexington. The Conference will practice. aim to serve Kentucky attorneys by equipping partic-

52 | MARCH/APRIL 2018 ipants with the vision, knowledge and skills necessary gathering research for their individual subcommittee to serve as leaders in the profession and in their com- reports. munities. • Approved authorizing President Garmer to execute • Approved issuing a Show Cause Notice to those bar the Kentucky State Retirement System application members who had not paid their dues or were CLE for cessation and continue the exploratory process of non-compliant. withdrawing from the KERS. • Executive Director John Meyers reviewed the status • Meyers reported on the status of the restroom reno- of the Board of Governors elections. Meyers reported vations. that there are three contested races; for vice president: Meyers reported on the status of the IT project. Thomas M. Kerrick and Earl M. McGuire, for 6th • SCD Bar Governor: Gary J. Sergent and Jacqueline • Approved the ratification of the email vote nominat- S. Wright, and for 7th SCD: John F. Vincent and ing Brian K. Pack and Ronald L. Hampton, both of Adam C. Gearheart. Ballots will be mailed on Dec. Glasgow, as the two candidates for the Judicial Nom- 15, 2017, and will be due back Jan. 15, 2018. inating Commission Special Election the 43rd Judi- • Approved the amendment to Unauthorized Practice cial Circuit. of Law Opinion U-65. Do you have a matter to discuss with the KBA’s Board of • Approved the 2018 Holiday Schedule consistent Governors? Board meetings are scheduled on: with the Administrative Office of the Courts. May 18-19, 2018 and June 12, 2018 • Meyers reported that the Kentucky Commission on To schedule a time on the Board’s agenda at one of the Future of the Legal Profession subgroups have these meetings, please contact John Meyers or been meeting regularly and working diligently on Melissa Blackwell at (502) 564-3795.

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BENCH & BAR | 53 THE WAIT IS OVER! BAR NEWS See Page 22 for Convention Details

th COMMONWEALTH OF KENTUCKY Hearing for December 15 , 2017 at 2:00pm in court room E on the third floor of the Fayette County Cir- JUDICIAL CONDUCT COMMISSION cuit Courthouse 120 N. Limestone Street Lexington, KY 41507. IN RE THE MATTER OF 7. On December 15th, 2017 neither the Respondent or HON. W. MITCHELL NANCE, FAMILY COURT JUDGE his Counsel appeared for the hearing as scheduled 43rd JUDICIAL CIRCUIT and offered no evidence in defense of said charges. 8. Counsel for the Commission, Hon. Jeffrey Mando, presented evidence in support of the charges. FINDINGS OF FACT, CONCLUSIONS OF LAW AND 9. The (five) voting members of the Commission in this FINAL ORDER case are as follows: Hon. Stephen D. Wolnitzek, Judge Janet Stumbo, Judge Eddy Coleman, Judge David I Bowles, and Michael Noftsger. Citizen member Joe STATEMENT OF CHARGES Adams was recovering from a medical condition and The Judicial Conduct Commission of the Commonwealth of was unable to participate. In attendance during the Kentucky was created for the purpose of, and is vested with the hearing was alternate member Judge Mitchell Per- jurisdiction to, initiate, hear and decide charges of official miscon- ry. The alternate member did not participate in the duct by any judge of the Court of Justice or lawyer while a candidate Commission vote in this matter. for judicial office, and upon a finding of such official misconduct, to impose sanctions pursuant to SCR 4.020. In furtherance of this 10. At the conclusion of the presentation of evidence it authority and purpose, the Commission filed charges of judicial was announced that the Hearing was concluded and misconduct against Judge W. Mitchell Nance, Family Court Judge, appropriate Findings of Fact, Conclusions of Law 43rd Judicial Circuit on September 11th, 2017. (Notice of Formal and a Final Order would be entered in due course. Proceedings and Charges dated September 11th, 2017 are attached hereto and incorporated herein by reference). III FINDINGS OF FACT AND CONCLUSIONS OF LAW II The Judicial Conduct Commission concludes that the following PROCEEDINGS Findings of Fact and Conclusions of Law have been established by 1. The Respondent, W. Mitchell Nance is the Family clear and convincing evidence. Court Judge for the 43rd Judicial Circuit consisting of Barren and Metcalfe Counties, Kentucky. CHARGE On April 27th, 2017 the Respondent issued General Order 17-01 2. The Commission authorized an investigation into the declaring that “under no circumstance” would the adoption of a allegations after receipt of a media report and multi- child by a homosexual be in the child’s best interest. Acknowledging ple Complaints. that this declaration constitutes a “personal bias or prejudice” against 3. The Respondent was informed of the investigation homosexuals seeking to adopt children, Judge Nance ordered that and appeared with Counsel, Hon. Bryan H. Beau- any attorney filing a motion for adoption on behalf of a homosexual man and Scott L. Miller, on June 30th, 2017. The party notify court staff so that he could recuse and disqualify himself Respondent was provided the factual information from any such proceeding. in the custody of the Commission for examination, pursuant to SCR 4.170(4) and was afforded an op- The General Order effectively created a Local Rule that was portunity to present any other information bearing implemented without the approval of the Chief Justice of the Ken- on the investigation. The Respondent did not provide tucky Supreme Court as required under SCR 1.040(3)(a) and its additional information bearing on the Commission’s content is contrary to prevailing law. investigation. As a result, the Respondent was charged with violating SCR 4. Notice of Formal Proceedings and Charges were filed 4.020(1)(b)(i) and that his actions constitute misconduct in office. against the Respondent on September 11th, 2017 un- In addition, the Respondent was charged with violation of SCR der Supreme Court Rule 4.180. 4.300 and the relevant portions of the following Canons of the Code of Judicial Conduct: 5. An Answer to the Notice of Formal Proceedings and Charges was filed by the Respondent by his Counsel Canon 1 which requires Judges to maintain high standards of on October 25th, 2017. conduct and uphold the integrity and independence of the Judiciary. 6. A Notice of Time and Place for Hearing was sent to the Respondent on October 30th, 2017, setting the Canon 2A which requires Judges to respect and comply with

54 | MARCH/APRIL 2018 the law and to act at all times in a manner that promotes public Court Judge 43rd Judicial Circuit is publicly reprimanded. confidence in the integrity and impartiality of the Judiciary. Judge David Bowles, the District Court Member of the Com- Canon 3B(1) which requires a Judge to hear and decide mat- mission voted that Judge Nance be removed from office for the ters assigned to the Judge except those in which disqualification violations set forth in the charges, and since at the time the vote is required. was taken, Judge Nance’s resignation was not yet effective believed that the only appropriate vote was a vote to remove him from office. Canon 3B(2) which requires a Judge to be faithful to the law. Rule 4.270 provides that the Commission’s Order shall become Canon3B(5) which prohibits a Judge from manifesting by words effective within Ten (10) days after service, unless an appeal is filed or conduct, a bias or prejudice based upon race, sex, religion, national within that time. origin, disability, age, sexual orientation or socio economic status. I hereby certify that the Findings of Fact, Conclusions of Law The Kentucky code of Judicial Conduct requires Judges to fairly and Final Order represent an action of the Judicial Conduction and impartially decide cases according to the law. Judge Nance’s Commission this 19th day of December 2017. refusal to hear and decide adoption cases involving homosexuals is violative of said Canons. /s/ STEPHEN D. WOLNITZEK In addition, the Respondent was charged with issuing General CHAIR OF THE COMMISSION Order 17-01, a local rule for Barren and Metcalfe Family Court, without the approval from the Chief Justice of the Kentucky Supreme Court as required under SCR 1.040(3)(a). The Respon- CERTIFICATE OF SERVICE dent’s actions in doing so violate SCR 4.020(1)(b)(i) and constitute misconduct in office. Furthermore, the Respondent’s actions violate I hereby certify that a copy of the foregoing was served upon SCR 4.300 and the relevant portions of the following Canons of Judge W. Mitchell Nance Family Court Judge, 43rd Judicial Circuit the code of the Judicial Conduct: by mailing same to his attorneys, Bryan H. Beauman, and Scott L. Miller, 333 West Vine Street, Suite 1500 Lexington, KY 41507 Canon 1 which requires Judges to maintain high standards of and upon Jeffrey C. Mando, Counsel to the Commission, 40 W. conduct and uphold the integrity and independence of the Judiciary. Pike Street Covington, KY 41011 the 19th day of December 2017.

Canon 2A which requires Judges to respect and comply with the law and to act at all times in a manner that promotes public /s/ confidence in the integrity and impartiality of the Judiciary. MS. JIMMY SHAFFER, EXECUTIVE SECRETARY By a vote of four to one, with member Nofts- ger dissenting the Commission finds that the Respondent, W. Mitchell Nance, is guilty of the violations set forth in Count I of the charges.

By a vote of five to zero, the Commission finds that the Respondent, W. Mitchell Nance, is guilty of the Violations as set forth in Count II of the charges.

ORDER The Respondent has been found guilty of misconduct by violating Canon1, Canon2A and Canon3B(1), Canon3B(2) and 3B(5) as charged in Count I, and Canon1 and 2(a) as charged in Count II.

For the foregoing violations, the Commission concludes that, due to Respondent’s retirement, a public reprimand is warranted, and is the only public sanction available, and by a vote of 4-1, the Respondent W. Mitchell Nance, Family

BENCH & BAR | 55 BAR NEWS

COMMONWEALTH OF KENTUCKY • Canon 1 which requires judges to maintain high standards of conduct and uphold the integrity and inde- JUDICIAL CONDUCT COMMISSION pendence of the judiciary. IN RE THE MATTER OF: • Canon 2A which requires judges to respect and comply with the law and act at all times in a manner that W. MITCHELL NANCE, FAMILY COURT JUDGE promotes public confidence in the integrity and im- 43rd JUDICIAL CIRCUIT partiality of the judiciary. NOTICE OF FORMAL PROCEEDINGS AND CHARGES Notice is hereby given of the initiation of formal proceedings The Judicial Conduct Commission has jurisdiction pursuant to under Rule 4.180 of Rules of the Supreme Court against Judge W. SCR 4.020(1)(b)(i) and (v), and (1)(c) which read, in pertinent Mitchell Nance, Family Court Judge for Kentucky’s 43rd Judicial part, as follows: Circuit located in Barren and Metcalf Counties. The Charges are (1) Commission shall have authority: as follows: (b) To impose the sanctions separately or collectively of Count I (1) admonition, private reprimand or public reprimand; On April 27, 2017, you issued General Order 17-01 declaring (2) suspension without pay or removal or retirement that “under no circumstance” would the adoption of a child by a from judicial office, upon any judge of the Court of homosexual be in the child’s best interest. Acknowledging that this Justice or lawyer while a candidate for judicial office, declaration might constitute a “personal bias or prejudice” against who after notice and hearing the Commission finds homosexuals seeking to adopt children, you ordered that any attor- guilty of any one or more of the following: ney filing a motion for adoption on behalf of a homosexual party must notify court staff so that you could recuse and disqualify your- (i) Misconduct in office. self from any such proceeding. A copy of General Order 17-01 is (ii) Persistent failure to perform his/her duties. attached to these charges. Your actions violate SCR 4.020(1)(b)(i) and constitute miscon- (v) Violation of the code of Judicial Conduct, Rule duct in office. Furthermore, your actions violate SCR 4.300 and the 4.300. relevant portions of the following Canons of the Code of Judicial (c) After notice and hearing to remove a judge whom it Conduct: finds to lack the constitutional statutory qualifications • Canon 1 which requires judges to maintain high stan- for the judgeship in question. dards of conduct and uphold the integrity and inde- For your information, the Commission calls your attention to pendence of the judiciary. the following Supreme Court Rule: • Canon 2A which requires judges to respect and comply with the law and act at all times in a manner that RULE 4.180 FORMAL PROCEEDINGS promotes public confidence in the integrity and im- If the Commission concludes that formal proceedings should be partiality of the judiciary. initiated, it shall notify the judge. He may file an answer within 15 days after service of the notice. Upon the filing of his answer, • Canon 3B(1) which requires a judge to hear and de- or the expiration of time for so filing, the Commission shall set cide matters assigned to the judge except those in a time and place for the hearing and shall give reasonable notice which disqualification is required. thereof to the judge. Canon 3B(2) which requires a judge to be faithful to • Please mail your answer to: Ms. Jimmy Shaffer, Executive Sec- the law. retary, Kentucky Judicial Conduct Commission, P.O. Box 4266, • Canon 3B(5) which prohibits a judge from manifest- Frankfort, Kentucky 40604-4266. ing, by words or conduct, a bias or prejudice based upon race, sex, religion, national origin, disability, age, September 11, 2017 /s/ sexual orientation or socioeconomic status. STEPHEN D. WOLNITZEK, CHAIR

Count II Judge Jeff S. Taylor recused from any consideration of this matter. In issuing General Order 17-01, you enacted a Local Rule for Barren and Metcalf Family Courts without the approval from the I hereby certify that copy of this Notice of Formal Proceedings Chief Justice of the Kentucky Supreme Court as required under and Charges was served on M. Mitchell Nance, Family Court SCR 1.040(3)(a). Judge, by mailing same to his attorneys, Bryan H. Beauman, Esq. Your actions violate SCR 4.020(1)(b)(i) and constitute miscon- and L. Scott Miller, Esq., 333 West Vine Street, Suite 1500, Lex- duct in office. Furthermore, your actions violate SCR 4.300 and the ington, KY 40507 this 11th day of September, 2017. relevant portions of the following Canons of the Code of Judicial Conduct: /s/ JIMMY SHAFFER, EXECUTIVE SECRETARY 56 | MARCH/APRIL 2018 BARB&B NEWS MARKETPLACE

December 19, 2017

Honorable John D. Minton, Jr. John D. Meyers, Executive Director Chief Justice Kentucky Bar Association Supreme Court of Kentucky 514 West Main Street Capitol Building Frankfort, Kentucky 40601-1812 Frankfort, Kentucky 40601

RE: CERTIFICATION OF CANVASSING BOARD FOR BAR MEMBERS, SPECIAL ELECTION FOR THE 43rd JUDICIAL CIRCUIT NOMINATING COMMISSION

Dear Chief Justice Minton and Mr. Meyers: Because each candidate received an equal number of votes, the election was fairly determined by lot under the supervision of and Pursuant to the provisions of Section 118 of the Kentucky Con- in the presence of the canvassing board pursuant to SCR 7.030(10) stitution and SCR 7.040(6), a duly appointed canvassing board, on Ronald L. Hampton’s name was drawn and is therefore elected. December 19, 2017, met in the Office of the Executive Director of the Kentucky Bar Association, and tabulated ballots for the special election as reflected above. Pursuant to the provisions of SCR Certified as true and correct Election Results Pursuant to SCR 7.030(11), the following candidates for the designated commission 7.030(11), this 19th day of December 2017. received the indicated number of votes:

43rd JUDICIAL CIRCUIT /s/ Ronald L. Hampton, 103 East Main Street, Glasgow, KY….…....19 Karen Cobb Chairman Brian K. Pack, 135 North Public Square, Glasgow, KY…….……..19 CC: Laurie R. Kidd, Administrative Office of the Courts

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BENCH & BAR | 57 BAR NEWS

KENTUCKY BAKENTUCKYR ASSOCIATION BAR ASSOCIATION STATEMENT KENTUCKYOFSTA FINANCIATEMENT BA LOF RPOSITION AFINANCIASSOCIATIONL POSITION Address or e-mail changes?! STAJuneTEMENT 30, 2017 OF JuneFINANCIA 30, 2017L POSITION Notify the Kentucky ______June 30,______2017 Bar Association Unaudited*______Over 18,000 attorneys are licensed to practice in the state of Kentucky. ASSETS ASSETS It is vitally important that you keep Current assetsASSETSCurrent assets the Kentucky Bar Association (KBA) Cash Current Cash assets $ 877,221 $ informed877,221 of your correct mailing address. Pursuant to rule SCR Certificates Cash of depositCertificates of deposit 160,542$ 877,221 3.175,160,542 all KBA members must main- InvestmentsCertificatesInvestments of deposit 9,778,186 160,542 9,778,186tain a current address at which he Accounts receivableInvestmentsAccounts receivable 146,418 9,778,186 or146,418 she may be communicated, as well as a physical address if your Due from affiliateAccountsDue from receivable affiliate 63,034 146,418 mailing 63,034 address is a Post Oﬃce Interest receivableDue Interestfrom affiliate receivable 21,750 63,034 address. 21,750 If you move, you must Prepaid expensesInterestPrepaid receivable expenses 119,533 21,750 notify119,533 the Executive Director of the KBA within 30 days. All roster Prepaid expenses 119,533changes must be in writing and Total current assets Total current assets 11,166,684 11,166,684must include your 5-digit KBA Total current assets 11,166,684member identiﬁcation number.

Property, buildingProperty, and equipment, building and net equipment, net 3,077,684 3,077,684Members are also required by rule SCR 3.175 to maintain with the Property, building and equipment, net 3,077,684Director a valid email address and Total net property Total and net equipment property and equipment 3,077,684 3,077,684shall upon change of that address Total net property and equipment 3,077,684notify the Director within 30 days of the new address. Members who Total assets Total assets $ 14,244,368 $ 14,244,368are classiﬁed as a “Senior Retired Total assets $ 14,244,368Inactive” or “Disabled Inactive” LIABILITIES ALIANDBILITIES NET ASSETS AND NET ASSETS member are not required to main- Current liabilitiesLIABILITIESCurrent liabilities AND NET ASSETS tain a valid email address on ﬁle.

AccountsCurrent payableAccounts liabilities payable $ 208,223 $ There208,223 are several ways to update Due to affiliateAccountsDue to payable affiliate 422$ 208,223 your address422 and/or email for your Accrued expensesDue Accruedto affiliate expenses 336,641 convenience.336,641422

Current maturitiesAccruedCurrent ofexpenses bonds maturities payable of bonds payable 140,000 336,641 VISIT140,000 our website at https://www. Current maturities of bonds payable 140,000kybar.org to make ONLINE changes Total current liabilities Total current liabilities 685,286 or685,286 to print an Address Change/Up- Total current liabilities 685,286date Form –OR– EMAIL the Execu- tive Director via the Membership Deferred revenueDeferred revenue 12,330 Department 12,330 at [email protected] Deferred revenue 12,330–OR– FAX the Address Change/ Bonds payable,Bonds less current payable, maturities less current maturities 20,000 Update 20,000 Form obtained from our Bonds payable, less current maturities 20,000website or other written notiﬁca- tion to: Executive Director/Mem- bership Department (502) 564-3225 Total liabilities Total liabilities 717,616 –OR-717,616 MAIL the Address Change/Up- Total liabilities 717,616date Form obtained from our Net assets Net assets website or other written UnrestrictedNet assets Unrestricted notiﬁcation to: Board designated UnrestrictedBoard designated 285,471 285,471 Kentucky Bar Association, UndesignatedBoardUndesignated designated 13,241,281 285,471 13,241,281Executive Director Undesignated 13,241,281 514 W. Main St., Total net assets Total net assets 13,526,752 13,526,752Frankfort, KY 40601-1812 Total net assets 13,526,752 Total liabilities Totaland net liabilities assets and net assets $ 14,244,368 $ 14,244,368*Announcements sent to the Bench & Bar’s Who, What, When & Total liabilities and net assets $ 14,244,368Where column or communication with other departments other than the Executive Director do not *Pursuant to SCR 3.120(8), there shall be an annual audit of the Kentucky Bar comply with the rule and do not Association. The Audited Financial Statements and Report Can be found on constitute a formal roster change the website at www.kybar.org/annualaudit with the KBA.

The accompanyingThe accompanying notes are an integral notes are an integral 58 | MARCH/APRILpart ofThe 2018the accompanyingfinancialpart of statements. the financialnotes are statements. an integral part -3-of the financial-3- statements. -3- THE WAIT IS OVER! See Page 22 for Convention Details

Announcement:

The Kentucky Cabinet for Health and Family Services is accepting applications for persons willing to serve as a chairperson of a Medical Review Panel pursuant to KRS 216C. Eligible applicants must be licensed to practice law in the Commonwealth of Kentucky.

Chairpersons will be selected on a case by case basis. This is a great opportunity to hone your management and mediation skills. Reimbursement shall be in accordance with KRS 216C, Section 23(2).

To apply, please complete the application found at mrp.ky.gov and sumbit to [email protected]. The Cabinet for Health and Family Services will maintain a list of all applicants by Supreme Court district for use pursuant to KRS 216C, Section 8(2). By Mail: CHFS, ATTN: MRP 275 East Main Street, 5W-A (MRP) Frankfort, Kentucky 40621 LAW DAY 2018 Electronically: [email protected] Presidents of local bar associations across the Common- wealth should have received their Law Day 2018 celebration Do you know someone planning guides, as well as this year’s Law Day awards who could win the... competition entry form. This year's theme is “Separation of Powers: Framework for Freedom.” 2018 KBA ANNUAL We encourage each local bar association to participate in STUDENT WRITING the Kentucky Bar Association’s Annual Law Day Awards Competition. The deadline for entries is Wednesday, May COMPETITION? 16. The KBA Law Day Committee will award $300 to the first place winner in each of the three—Large, Medium and The Kentucky Bar Association invites and encourages students Small—bar categories. Additionally, representatives from currently enrolled at the University of Kentucky College of Law, the winning bar associations will be honored at the KBA Annual Convention during the Membership Luncheon the University of Louisville Louis D. Brandeis School of Law, and scheduled for Friday, June 23, at the Hyatt Regency Hotel. the Northern Kentucky University Salmon P. Chase College of Law to enter the KBA Annual Student Writing Competition. This comp- Entries should be mailed to Shannon Roberts at the etition offers these Kentucky legal scholars the opportunity to Kentucky Bar Association. For an entry form and any earn recognition and a cash award. First, second, and third place additional information on the competition, please contact Roberts in the KBA Communications Department at (502) awards will be given. Entries must be received by June 1, 2018. 564-3795 ext. 224 or at [email protected]. Students may enter their previously unpublished articles. Law Day 2018 falls on Tuesday, May 1. For more information For inquiries concerning the KBA Annual Student Writing on Law Day, visit www.lawday.org. Competition contact Shannon H. Roberts at [email protected].

BENCH & BAR | 59 KYLAP

he Kentucky Bar Association, through the Kentucky Lawyer Assistance Program, is excited to partner with a Kentucky KYLAP HOSTS LAWYERS Temployee assistance program to offer an opportunity for mental health support to Kentucky’s lawyers and judges. All of the IN RECOVERY MEETINGS IN assistance remains COMPLETELY CONFIDENTIAL, pursuant to S.C.R. 3.990. Services became available in October 2017. NORTHERN K Y This new partnership will provide additional mental health support for Kentucky’s lawyers and judges. The employee assistance & program will offer CONFIDENTIAL phone assistance after hours LEXINGTON and on weekends. Simply call the KYLAP office anytime, night or day, on our NEW DIRECT PHONE NUMBER—no operators required—and after hours you will be directly connected to our employee assistance program. OUR NEW DIRECT NUMBER IS (502) 226-9373.

You may also continue to call through the main switchboard at the KENTUCKY LAWYER ASSISTANCE PROGRAM Kentucky Bar Association at (502) 564-3795, ext. 266. Someone will be available to answer your call 24 hours a day, 7 days a week.

If you need immediate care, our employee assistance program KYLAP will connect you to one of hundreds of mental health providers all across the state (and even across the country), and he Kentucky Lawyer Assistance Program offers weekly open you will have an appointment in your area (or in the area you Trecovery meetings for lawyers, law students and judges in choose) in as little as 24 hours, but no more than 48 hours from Northern Kentucky and Lexington. The Northern Kentucky Law- the time of your call. The provider you are referred to will be yers in Recovery meeting is held at 5:00 p.m., on Tuesdays at 510 a licensed and/or certified professional, depending on the cre- Washington Avenue, Newport, KY 41071. Please bring your own dentialing. If you have insurance or would like to pay privately, coffee.The Lexington Kentucky Lawyers in Recovery meeting is that will be accepted (according to the provider’s guidelines). held at 7:30 a.m. on Wednesdays at the Alano Club downtown, If you are unable to pay and you meet the income criteria, you 370 East Second Street, Lexington, KY 40508. will receive up to four (4) clinical sessions at no charge to you. The Kentucky Bar Association and KYLAP are providing this All meetings are open to law students, lawyers and judges who service to KBA members free of charge, when income criteria are are already involved or who are interested in a 12-step program of met. If you need additional services and are unable to pay for recovery, including but not limited to Alcoholics Anonymous, Nar- those, additional assistance may be available through the KYLAP cotics Anonymous, Overeaters Anonymous and Al-Anon. Come Foundation, www.kylap.org/foundation. meet other attorneys and network. All meetings and contacts are confidential. SCR 3.990. At the Kentucky Bar Association and the Kentucky Lawyer Assis- For additional information, please contact us. tance Program, we recognize that lawyers and judges are suffering from undiagnosed mental health issues, including depression and web: www.kylap.org • call: (502) 226-9373 severe and chronic stress and anxiety, at a rate far higher than the email: [email protected] general population. We understand that good mental health and wellness is essential for the sustainability of our profession. We are committed to offering this service to you to help you, or those you care about, address mental health issues before anyone reaches a

crisis in either their life or their career. ISTANCE P SS RO A G Contact KYLAP DIRECTOR R R E A FOR MORE INFORMATION ABOUT THIS Y M YVETTE HOURIGAN for more W F

A O

SERVICE, CALL KYLAP OR CHECK OUT OUR U Y

N information about the

WEBSITE AT WWW.KYLAP.ORG. A

U T

T I

N KYLAP FOUNDATION, INC.,

N E K The Kentucky Lawyer Assistance Program extends its sincerest thanks to FORGIVABLE LOAN PROGRAM. the Kentucky Bar Association Executive Director John Meyers, Board of Governors President Bill Garmer, KYLAP Task Force Chair Tom Kerrick, and the entire Board of Governors for their assistance and (502) 226-9373 · [email protected] support in making this opportunity a reality. 60 | MARCH/APRIL 2018 BENCH & BAR | 61 THE WAIT IS OVER! KENTUCKY BAR FOUNDATION See Page 22 for Convention Details

62 | MARCH/APRIL 2018 BENCH & BAR | 63 CONTINUING LEGAL EDUCATION

THE 2018 KBA CLE PATH:

arch 2018 is already upon us, but it seems like just yesterday Mwe were greeting a host of new and bright practitioners from across the state in Louisville at the New Lawyer Program in late January. These new practitioners not only received valuable CLE courses and credits to fulfill their annual requirements for the year, they also shared the privilege of being introduced to a wide range of leading practitioners from across the state. But, equally important, I am hopeful that each were welcomed to the KBA in such a manner that they will remain eager to serve and practice within the bar for many years to come. I know this was my experience as I left the program with a true sense of pride in our profession and a better sense of belonging among a familial group of like-minded individuals seeking to pursue justice on various fronts. This sense of pride and my close association with my “bar family” remains with me today.

Over the years, I’m sure that many, like me, have faced experiences within the bar that have left our sense of pride in our profession somewhat jaded, albeit temporarily. Others may not have experienced their own “war stories,” but have likely been privy to stories that don’t showcase the civility among the bar that we should all aim to achieve. These experiences likely negatively impacted your view of our profession and other practitioners. But, I can certainly attest to the fact that attending, presenting or otherwise participating in bar or CLE related events with my fellow practitioners, replenishes this cup of pride in our profession and being among I guarantee you will get more than a bang other Kentucky practitioners in a non-adversarial setting is simply for your buck when attending! good for the soul! So I invite you to get out of your offices or from Join us. behind your digital screens, and come hang out with your fellow Finally, join a KBA committee, section/practice group, or vol- practitioners at various KBA and CLE events this year. unteer to lead a civic event in your community with your fellow Ready to replenish your cup! Take out your calendar and plan ahead practitioners. As budgetary issues continue to create barriers in to attend the 2018 KBA Annual Convention from June 13-15 in providing equal access to justice among all citizens, I encourage Lexington. Last year’s annual convention in Owensboro not only you to find your niche, pursue your passion, and replenish your showcased this beautiful city in the western region of the state, cup with civic or community endeavors that remind us all why we but also brought world renounced speakers to our state who chose this notable profession. addressed prevalent current national legal issues facing both the criminal and civil bar. This year will be bigger and better. LATOI D. MAYO is a shareholder with Littler Mendel- son P.C. She has advised, counseled and defended In addition, grab a colleague, a cup of coffee and join us at one employers in regard to labor, employment and of the Kentucky Law Update traveling shows, which will begin in immigration matters for over 15 years. She late August and conclude in mid-December. This free CLE program received her B.A. and her J.D. from the University is offered throughout the state at the following locations during of Kentucky and is a member of the Fayette County, the fall: Kentucky and American Bar associations.

August 23-24 Bowling Green September 13-14 London September 27-28 Ashland October 4-5 Pikeville Holiday Inn University Plaza London Community Center Bellefonte Pavilion Eastern Kentucky Expo Center & Sloan Convention Center October 17-18 Louisville November 1-2 Paducah November 15-16 Owensboro November 29-30 Lexington Kentucky International Julian Carroll Convention Center Owensboro Convention Center Lexington Convention Center Convention Center December 13-14 Covington Northern Kentucky Convention Center

64 | MARCH/APRIL 2018 2017-2018 CLE COMMISSION MEMBERS Jason F. Darnall, Chair Frank Hampton Moore III First District Representative Second District Representative [email protected] [email protected]

Graham C. Trimble J. Tanner Watkins Third District Representative Fourth District Representative [email protected] [email protected] The 2017-18 CLE Commission: Back Row: Mary Beth Cutter, Director for CLE; J. Tanner Watkins of Louisville (4th S.Ct. District); David B. Sloan of Covington (6th S.Ct. District); Graham C. Trimble of Corbin (3rd S.Ct. District); F. Hampton Moore III of Bowling Green LaToi D. Mayo David B. Sloan (2nd S.Ct. District); Leigh Gross Latherow of Ashland (7th S.Ct. District); Jason F. Darnall of Benton, Chair (1st S.Ct. District) and Fifth District Representative Sixth District Representative LaToi D. Mayo of Lexington (5th S.Ct. District). Not pictured: Justice Laurance B. VanMeter of Lexington (Supreme Court Liaison). [email protected] [email protected]

INTERESTED IN ASSISTING WITH A CLE? HAVE IDEAS FOR A PROGRAM? Leigh Gross Latherow Justice Laurance B. VanMeter Contact Mary Beth Cutter, KBA Director for CLE at [email protected], Seventh District Representative Supreme Court Liaison or any member of the Continuing Legal Education Commission. [email protected]

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BENCH & BAR | 65 CONTINUING LEGAL EDUCATION THANK YOU FOR SUPPORTING THE NEW LAWYER PROGRAM

We would like to thank those individuals and organizations whose contribution of time, expertise and funding helped make the January 2018 New Lawyer Program a success. SPEAKERS, FACILITATORS AND SPONSORS: CONTRIBUTING AUTHORS: Ashleigh N. Bailey Guion L. Johnstone Ruth H. Baxter Ernest H. “Hank” Jones II James J. Bell Megan P. Keane Judge Andre L. Bergeron Oran S. “Scotty” McFarlan III Kelli E. Brown James E. McGhee III Benjamin W. Carter Teresa R. McMahan Ashley L. Chilton Christopher B. Rambicure Amy D. Cubbage Tucker Richardson III Mary Beth Cutter Thomas E. Rutledge Phillip H. Doty Katherine M. Sagan Robert L. Elliott Jeffery L. Sallee Megan M. Fields Alex L. Scutchfield Professor William H. Fortune Robert J. “Bobby” Stokes, Jr. William R. Garmer Louis I. Waterman M. Andrew Haile, Jr. Eric M. Weihe Mark G. Hall Trevor W. Wells Demetrius O. Holloway Joseph A. Wright P. Yvette Hourigan Judge Amber B. Wolf

“Within twelve (12) months following the date of admission as set forth on the certi cate of admission, each person admitted to membership to the Kentucky Bar Association shall complete the New Lawyer Program.” EXHIBITORS: SCR 3.640 New Lawyer Program

Kentucky Bar Association KENTUCKY LAWYER ASSISTANCE PROGRAM 2018 New Lawyer Program KYLAP in conjunction with:

Legal Aid of the Bluegrass

June 13-15, 2018 Lexington Convention Center For more information, visit https://www.kybar.org/page/nlpdatesandlocations 66 | MARCH/APRIL 2018 KBA KENTUCKY LAW UPDATE MARK YOUR TELESEMINARS Advancing the Profession2018 Through Education CALENDARS! The annual Kentucky Law Update (KLU) is just around the corner. The KLU 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 will become available on our website this summer. We look forward to seeing you in the fall! 2018 KENTUCKY LAW UPDATE DATES & LOCATIONS Don’t want to travel for BOWLING GREEN PIKEVILLE OWENSBORO HOLIDAY INN UNIVERSITY EASTERN KY EXPO CENTER OWENSBORO “LIVE” CLE credits? The KBA PLAZA & SLOAN CONVEN- CONVENTION CENTER TION CENTER October 4-5 (TH/F) provides you a weekly series November 15-16 (TH/F) August 23-24 (TH/F) LOUISVILLE of live teleseminars that are KY INTERNATIONAL LEXINGTON LONDON CONVENTION CENTER LEXINGTON as nearby and as convenient LONDON COMMUNITY CENTER October 17-18 (W/TH) CONVENTION CENTER as your office or home phone. September 13-14 (TH/F) November 29-30 (TH/F) PADUCAH For the full catalog of offerings ASHLAND JULIAN CARROLL COVINGTON BELLEFONTE PAVILION CONVENTION CENTER NORTHERN KENTUCKY in 2018, visit September 27-28 (TH/F) CONVENTION CENTER November 1-2 (TH/F) http://ky.webcredenza.com/. December 13-14 (TH/F) For questions or to register over the phone, please contact Kim at LOOKING FOR UPCOMING [email protected] KBA ACCREDITED CLE EVENTS? or (720) 879-4142. LOOK NO FURTHER...CHECK OUT HTTP://WEB.KYBAR.ORG/CLESEARCH/LISTPROGRAMS.ASPX KBA ONLINE This easy to use search engine contains up to date information on CLE events that PROGRAMS have been accredited by the Kentucky Bar Association Continuing Legal Education The KBA Online Catalog offers Commission. a great way to take CLE whenever and wherever you have access to Users can search by program date, name or sponsor for information about future the internet! Seminars featuring and past events. Program listings include sponsor contact information, approved our highest rated speakers are CLE and ethics credits, and KBA activity codes for filling out the certificate of delivered right to your desktop in attendance (Form #3). streaming audio and video formats. Programs are approved and added in the order in which they are received. It may Visit kybar.inreachce.com/ for take up to two weeks for processing of accreditation applications. If an upcoming the latest program additions and or past event is not listed in the database, check with the program sponsor regard- ordering information. The catalog ing the status of the accreditation application. also includes audio programs you can download directly to your iPod/ mp3 player, for playback at your convenience. CHECK OUT THE KBA’S FACEBOOK PAGE BY Note: Online video and downloaded audio seminars are technological programs, SEARCHING KENTUCKY BAR ASSOCIATION. of which you are allowed up to 6.0 CLE credits per educational year. MAKE SURE TO THE PAGE WHILE YOU ARE THERE!

BENCH & BAR | 67 THE WAIT IS OVER! CONTINUING LEGAL EDUCATION See Page 22 for Convention Details

Stephen P. Carson Wanda McClure Dry Lori Nicole Goodwin 2017 cle Finn R. Cato Brian Joseph Dufresne Charles P. Gore Frances E. Catron Brian C. Dunham David Allen Graf Emily Cecil Leonard J. Dunman Lewis H. Graham Gina Ware Centner James Brannon Dupree Kristi Lynn Gray AWARD Grace Carol Chambers William John Dutel Michael J. Gray Thomas L. Clark Benjamin Jason Early Abigale Rhodes Green Michael M. Clarke Jeffrey Lyle Eastham Bart Loveman Greenwald recipients John Daniel Clay, Jr. Aaliyah Karama Eaves Morgan M. Griffin Craig Z. Clymer Dana M. Eberle-Peay Charles S. Griffith III Congratulations to the following members who Stuart W. Cobb Daniel Martin Ebert Erritt Hill Griggs have received the 2017 CLE Award by obtain- Arnold S. Coburn Amanda Warford Edge Peggy Darlene Guier ing a minimum of 60 CLE credit hours within M. Christina R. Cochran Tawana L. Edwards Eva Maria Hager a three-year period, in accordance with SCR Rachel G. Cohen Barbara Ellen Elliott David Paul Haick 3.690. The CLE Commission applauds these Mindy Lynn Coleman Johanna Frantz Ellison Donna R. Hale members for their efforts to improve the legal Scott Edward Collins William Harmon Emmons William M. Hall, Jr. profession through continuing legal education. Steven Connelly Kandice Engle-Gray Michael Allen Hamilton Shelby Ray Conrad David A. Erhart Daniel Edward Hancock Matthew Porter Cook Philip Carl Eschels Lea D. Hardwick John Edward Abaray James Garland Bland, Jr. Ronald Lee Coombs Mitzy Lee Evans Timothy M. Harner Ashley Ervin Abaray Euva Denean Blandford Kyle Allan Cooper Kyle Anthony Evans Richard Kelly Harris Robert Lee Abell Charles Mark Blankenship Anne Courtney Coorssen Isaac Tyler Fain Jack B. Harrison Deborah S. Adams Steven Parker Boggs Rosalind Cordini Bernard Martin Faller Colleen C. Hartley Amelia Martin Adams Jeffrey Charles Borden Samantha D. Costello Shannon Renee Fauver Jessica Harvey Ander Nadir Al-Shami Joni Patrice Bottorff Bryce Lee Cotton Hannah Marie Fawbush Kerry B. Harvey Jodi Albright Paul Richard Boughman Terri Michelle Coughlin Timothy Edward Feeley Rhonda G. Hatfield-Jeffers William L. Aldred, Jr. Adam Braunbeck John Ben Cowley III Michael J. Ferraraccio Lucius P. Hawes, Jr. Dennis C. Alerding Deena Grace Braunstein David Thomas Cowley Eric Davis Finke Vicki R. Hayden Brenda K. Dinkins Allen Erin Marie Bravo Jennifer Lynn Cox Joseph Michael Fischer Marian J. Hayden Kenneth J. Allen Matthew W. Breetz Janine Rene’ Coy-Geeslin Robert Patrick Flaherty Sarah Capps Hayes Steven Earl Alsip Sarah Bash Brian Michael Allen Crider Stephanie Cate Flanary Ashlie Shawn Heald Timothy Charles Ammer David Joseph Bridgeman Larry J. Crigler Vanita Sharma Fleckinger Mary J. Healy Anshu Anand Paul Allen Brizendine Julia Beville Crocker Melanie Ann Foote Frederick S. Hecht David W. Anderson Philip J. Bronson Jessica Marie Crockett Jacob Pace Ford Francis W. Heft, Jr. John E. Anderson Ami L. Brooks Jacob Wayne Crouse Rachel Fortner Carla C. Helstrom Kelly Renae Anderson Bonnie Maryetta Brown Margaret E. Cunningham Justin Anthony Fortner Marcus Hayes Herbert Nicole Ellen Angst Adele Burt Brown Halee C. Cunningham Amy Susanne Foster Amanda Marie Hernandez Julie Brown Apperson Carolyn M. Brown John D. Dale Kristen Hannah Fowler Vincent F. Heuser, Jr. Joseph V. Aprile Kelli E. Brown Ryan Thomas Dane Elizabeth Lynn Fox Cody Duwayne Hibbard Michael F. Arnold Andrea C. Brown Lori Vanhoose Daniel John Turner Frame II Stockard R. Hickey III Denise Kirk Ash Angela M. Brown William S. Daugherty Kevin Anthony Francke Keri E. Hieneman Timothy Edward Ash Valetta H. Browne Michael Davidson Mark Sidney Franklin Horace Edgar Hill Aaron Reed Baker Katherine R. Bruenderman Rodney G. Davis Tracey A. Frazier Brian Lee Hill Colleen E. Balderson Timothy M. Buckley Leigh Ann J. Davis Kenneth R. Friedman Mary Gabrielle Hils Michael A. Barnett Thomas Dulaney Bullock Elizabeth A. Davis Lisa Lynn Fugate Barry Alan Hines Robert Evan Bates Anthony Jerome Burba Eden Summer Davis Catherine Sue Fuller John Edward Hinkel, Jr. Ann Forrest Batterton Ashley Shannon Burke Ashley Witte Dawson Angela Kortz Funke Erin Kathleen Hoben Ruth Helen Baxter James Bryant Burkeen Ewa C. Dawson Brandon Lee Fyffe Willis W. Hobson V Jessica Nicole Beard Michael Lee Burman Yvette Rene’ DeLaGuardia Maria Alice Gall Michael Todd Hogan Robert Warren Beck Charnel Marie Burton Michelle S. Deimling Rebecca Lynne Galloway Laura Anne Holoubek Frank Thomas Becker E. Andre’ Busald Mary Elise D. Marti John Michael Gambrel John D. Holschuh, Jr Jaymie Collette Begley William M. Butler, Jr. Timothy Denison Woodford L. Gardner, Jr. Jessica Erin Hom Katherine A. Bell Christine Anne Buttress Gabrielle Luci DiBella John Joseph Garvey III George W. Hopkins IV Melissa Dell Bellew Bienvenido M. Cabuay, Jr. Sara Jean Diaz Heather Lynn Gatnarek Xon Roban Hostetter James David Bender Amy S. Cahill Temple Dickinson Terry Lane Geoghegan Steven N. Howe Carol J. Bennett Stacee B. Cain Amber Ella C. Dillon Gordon T. Germain Elizabeth M.Howell John Ford Bennett Steven Casey Call David Michael Dirr John Mohammad Ghaelian Joseph M. Huber Paul Terry Berkowitz Carol Rene’ Camp Rachelle C. Dodson David Mark Godfrey Robert D. Hudson Mark Francis Bizzell Jessica Erin Campbell Daniel J. Dougherty, Jr. Mary Elizabeth Going Steven W. Hughes Allen Scott Black Thomas L. Canary, Jr. LeeAnna Dowan Alicia Paez Gomez Stephany B. Hunter Jonathan Mark Blanchard Samuel G. Carneal Alice Dansker Doyle Jacquelyn S. Gonz Monica J. Ibarra-Burke JoAnne Wheeler Bland Michael K. Carrier

68 | MARCH/APRIL 2018 Brandie M. Ingalls Spencer A. Mancillas Christopher Shea Nickell Bruce F. Rudoy Nick Curtis Thompson Wayne Alan Isaacs Andrew John Manion Peter Christia Nienaber Benjamin M. Salyers Angela L. Thompson David Brandon Ison Mary K. Manis Robert D. Nienhuis Adam Knisley Sanders Sean Patrick Tillman Jamie LaShawn Izlar Geoffrey D. Marsh Stephen M. O’Brien Michael Thomas Sanderson Olivia Brooke Toller Kim Monroe Jackson Leilani K. Martin Joshua Matthew O’Bryan Crystal Lynn Saresky Duffy Briggs Trager Richard Dwayne Jackson Andrea Leigh Mattingly Candice Bogie O’Dea Bridget A. Saunders Patricia Joann Trombetta Eric Michael Jaegers Kathryn R. Mattingly Mark Allen Ogle Leslie M. Saunders James Gregory Troutman Rebecca J. Johnson Webster John Simcoe Osborn III Mary Elizabeth Savage Arnold Brent Turner Jacob Ryan Johnson Jacqueline M. Mayer Joshua Justice Owen Jeffrey A. Savarise Amy Lee Turner Christina G. Johnson Douglas A. McCann Michael Eric Pace Steven Carroll Schletker Raven Necole Turner Leigh Redd Johnson Tyson Stewart McDonald Peter David Palmer Madonna E. Schueler Richard D. Underwood Sara Ann Johnston Stephanie L. Rickey Lee Pardue Jessica Karen Schulte James Anthony Vaught Carrie Lynn Jolly Link McGehee-Shacklette Gary Lynn Payne Stephanie Kenn Schulte Kenneth D. Veit Wendell Lloyd Jones James Peter McHugh David Clarence Perkins Richard Alan Schwartz Kristy D. Vick-Stratton Mauritia Gauvi Kamer Michael Scott McIntyre Jason Kelly Petrie Philip Joseph Schworer Cristalle M. Vivona Kelly Ann Kane Erin Grace McKenzie Hans M. Pfaffenberger Joshua L. Searcy Greg Dewey Voss Corinne Elizab Keel Falin McKenzie Susan D. Phillips Bradley Alan Sears Jennifer Leigh Wade Benjamin Todd Keller Kevin Michael McNally Larisa A. Plecha Matthew T. Senn James Reagan Wagoner Sara Beth Kelley Jay Drummond McShurley Michael L. Plumley Kathryn Hibbs Senter Amanda Rae Walker Scarlette Burt Kelty Chadwick Aaron McTighe Martin Andrew Pohl James Marion Shake Justin R. Walker Andrea Michell Kendall Conor Hentze Meeks Stephen Howard Poindexter Deborah L. Shaw Alex Evan Wallin William S. Kendrick Henry E. Menninger, Jr. Carrie Beth Pond Kevin Scott Shearer Victor A. Walton, Jr. Nicholas Austi Kennady Sierra Dawn Merida John Samuel Poole Kathy Ellen Shields James Simpson Watson John Roger Keough Michele Nicole Metzler Hans G. Poppe, Jr. Micah Ian Shirts Timothy J. Weatherholt Viki Ann Kerek Kurt Xavier Metzmeier John A. Pottinger Frank Gates Simpson III Kevin Wayne Weaver James Charles Kezele J. D. Meyer Henry F. Powell Sheila Kay P. Singleton Cecilia Faye Weihe Hammad M. Khan Ashley Lauren Michael George S. Powers Steven Brad Skinner Jessie Leigh Weinmann Susan Elizabet Kidd Maria C. Mier Jerome Park Prather David Bryan Sloan Carlo Rudolph Wessels Randall Loftin Kinnard Melissa T. Millard Christie Jessi Pratt Jerry Wayne Slone Jack Allen Wheat Kenneth Timoth Kline Robyn Elaine Miller Karl Price Matthew T. Smith Emily Alice Whelan Shelia Ann Kyle-Reno Stacy Elizabeth Miller Benjamin T. Pugh Tiffanny L. Smith Lisa Hayden Whisman Cheryl Anne Lalonde Jessica Leigh Miller Marco Mike Rajkovich, Jr. Jerad Allen Smith Anna Stewart Whites Steven Paul Langdon Andrew S. Miller Natalie Lynn Ralph Andrew L. Smith Diana Carter Wiedel Jay Richard Langenbahn Caroline A. Mills Ann Lawrence Ramser Jason Philip Snyder Michael L. Wiery Samuel Kenton Lanham Katina Brooke Miner Ronald Steven Ran Larissa Helmer Somers Mark Allen Wilder Christopher N. Lasch Keith R. Mitnik Michelle Renee Rawn George Russell Sornberger II Russell Lynn Wilkey Jennifer Lee Lawrence Sucheta Mohanty Angela Marie Rea Timothy B. Spille Charles Evans Wilkinson Justin Lee Lawrence Edward Colman Monahan Andrew Scott Reinhardt Dawn Ellis Stacy Connie Lynn Lindsay Ann Lawrence Elizabeth N. Monohan Lois Renfro-Morris Leonard Joseph Stayton Wilkinson-Tobbe Whitney True Lawson Catherine Ann Monzingo Amy Leigh Revlett Julie Dianne Steddom Bethany Mary Willcutt Maureen Leamy Douglas Ray Moore Michael Neal Rhinehart Erica Stacy Stegman Dustin Robert Williams Shontay Leverett Collin David Moore Mark Edward Rice Cara Loraine Stewart Kenneth T. Williams II Tracey M. Levering Leigh Ann Moore Calebe Lee Rice Mark Alan Stiebel Thomas L. Williamson Chad Steven Levin Mary Lorraine Moorhouse Robin David Rice Jesse Stockton, Jr. Michael K. Williamson John Christian Lewis Joan M. Morales Kathleen H. Richard Sheila Clemons Stoffel Steven R. Wilson Stephanie M. Lewis Myron Russell Morales Rhonda Karen Richardson David Carey Stratton Kyle J. Wilson Russell W. Lewis IV John Hunt Morgan Eric Wade Richardson John Michael Straub, Jr. Vickie L. Wise Sarah Clay Leyshock Michael E. Morthorst Tracy Anne Leh Richardson Randall Scott Strause Kenneth Ray Witt Michael E. Litzinger Kelli G. Mulberry Jonathan S. Ricketts Courtney Risk Straw Jeremy A. Wood James Taylor Lobb Katie Belle Mullins Kelly Kirby Ridings Randal Alan Strobo Gregory A. Woosley Thomas L. Lockridge Melissa Moore Murphy Kenneth Wayne Riggs Nancy Gail Sturgeon LaQuita S. Wornor Paul Joseph Loftus Charles S. Musson Christopher R. Ring Richard Scott Stutler Milja Zgonjanin Todd Bennett Logsdon Kelly Mulloy Myers Jessica Brown Roberts Joseph Bernard Suhre IV Wilbert Louis Ziegler Lindsy Jo Lopez Matthew W. Myers Leigh Ann Roberts John Scott Sweeney Elizabeth Hope Jerry Marc Lovitt Gregory Adam Napier Kendall Robinson Gary Dean Swim Zilberberg Melanie L. Lowe Christina T. Natale Lauren E. Robinson Robert Lloyd Swisher Deborah Jo S. Amanda Simmons Luby Stephen Edward Neal Cynthia Gale Rose Julia Edith Tarvin Zimmerman William R. Lundy, Jr. Cheryl Rae M. Neff Molly Elena Rose Marc Tawfik Michael Zimmerman Janet S. Luo Kerry Lee Neff Gregory T. Rosenberg Richard S. Taylor Gene F. Zipperle, Jr. John Michael Mack Rachael Anne Neugent Cassidy R. Rosenthal Allyson Cox Taylor Martha A. Ziskind Mark Bohannan Maier Leslie M. Newman Monika Kay Roth Robin Bryson Thomerson Andrew H. daMota Donna Marie Malcomb Mark Edward Nichols Jonathan Clay Rouse Helen E. Thompson

BENCH & BAR | 69 CONTINUING LEGAL EDUCATION 2017 cle Congratulations to the following members who have received the CLE award by obtaining a minimum of 60 CLE credit hours within a three-year RENEWAL period, in accordance with SCR 3.690, and renewing the award by obtaining at least 20 hours in subsequent years. The CLE Commission applauds these members for their efforts to improve the legal profession through AWARD continuing legal education. recipients Michael P. Abate Kevin Charles Brown Erin M. Corken Charles B. Eidson Charles A. Goodman III Sharif Ahmed Abdrabbo Taylor Austin Brown Christine A. Corndorf Karema Alene Eldahan Nathan Wayne Goodrich Eldred E. Adams, Jr. Elizabeth A. Bruce Richard Couch Stephen Earl Embry Anne Ellen Gorham Perry Adanick Angela M. Buckler Jerry Jones Cox Kenny Bryan Ernstberger Virginia Baker Gorley Gary W. Adkins Jonathan D. Buckley Michael Joseph Cox Amy Lynn Eversole Daniel T. Goyette Daniel T. Albers Josephine L. Buckner David Brent Cox Ross Thomas Ewing Lana Beth Grandon Jeffery Paul Alford Helen G. Bukulmez Joshua Bryan Crabtree Douglass Farnsley Donald Edelen Groot Sharon Kay Allen Pervis C. E. Burcham III Nicholas Craddock Michael Joseph Farrell Ryan Martin Halloran Todd Gregory Allen Beverly M. Burden Beach Alan Craigmyle Maria A. Fernandez Bradley D. Hamblin, Jr. Michael Wayne Alvey Michael T. Burns Justin David Criswell Megan M. Fields John Edward Hamlet Lori Janelle Alvey James Francis Butler III Philip George Crnkovich Roderick H. Fillinger Ashley Renee Hampton W. Dale Arnett Bradley Scott Butler Justin David Crocker Joseph Leslie Fink III Sharon Ruth Handy Michael C. Arnold Cynthia Scott Buttorff Melissa Jane Crump Kenneth Lee Finley Benjamin R. Hardy Timothy G. Arnold William Robert Buzo William York Culbertson Pashens L. Fitzpatrick Harold E. Harmon Emily Jeannine Arnzen Timothy James Byland Jack R. Cunningham Jason Shea Fleming Norman E. Harned Grant Matthew Axon Charles Cary Cain Terry Martin Cushing George L. Fletcher Nicholas Ryan Hart Scott Adrian Bachert Derek Edward Cain Mary Elizabeth Cutter Anna Girard Fletcher Jason Apollo Hart Ashleigh Noel Bailey Kelley Landry Calk James Patrick Dady Mark Anthony Flores Martin L. Hatfield Kimberly J. Baird Valerie Lyn Calloway Benjamin K. Davis Dana D. Fohl Cirris E.C.B. Hatfield Kenton Lee Ball Richard H. Campbell, Jr. Jonathan B. Davis Ephraim H. Folberg Jeremy Andrew Hayden Catherine Hill Ball Traci Courtney Caneer Richard F. Dawahare Paul Kevin Ford Jennie Yon Haymond Thomas E. Banks II Alton Lee Cannon Edmonde P. DeGregorio William H. Fortune Stephen Keller Heard Amy Virginia Barker Michael Odell Caperton Jeffrey Bryant Dean James Michael Foster Charles Robert Hedges George Thomas Barker John Keith Cartwright William S. Dean George E. Fowler, Jr. Sheryl E. Heeter James J. Barrett III Paul A. Casi II John M. Debbeler Christopher S. Fox Dennis C. Helmer John Allan Bartlett Mary Suzanne Cassidy Larry Colby Deener William G. Francis William E. Henderson, Jr. Rickey Lee Bartley Ottis Lee Cave III Elizabeth Anna Deener Cathy Weller Franck Joe Wayne Hendricks, Jr. Courtney T. Baxter James Isaac Chamberlain Laura Day DelCotto McKinzee Ann W. Frazier Shawn Marie Herron Brian Keith Bayes Blake Ross Chambers Wesley Brian Deskins Carl N. Frazier-Sparks Stephanie Hickerson-Harris Simone R. Beach James Donald Chaney Richard Joseph Deye Kathryn H. Gabhart Mary Elizabeth Hils Brian Michael Bennett Richard M. C. Ray Rebecca G. DiLoreto Richard J. Gangwish II Jason Edward Hiltz Matthew Lytle Benson Shelley D. Chatfield Peter G. Diakov Peter Mark Gannott Joseph Brett Hines Deedra Benthall Ashley Lauren Chilton Monica Louise Dias Jodie Drees Ganote Buckner Hinkle John R. Benz Janis Elaine Clark Robert Wendell Dibert Alexander Garcia Cherie M. Hinkle Joel T. Beres James Kelly Clarke Denise A. Dickerson Grace Ingrid Gardiner Matthew E. Hite Stephen David Berger Susan Stokley Clary Thomas A. Dockter Larry D. Garmon Heather Jean Hodgson Turney Powers Berry Tara Jean Clayton Sheila Mary Donovan Andrew T. Garverich Charles F. Hoffman Jared Travis Bewley Charles Edward Clem Kelsey Marie Doren Tyler A. Gattermeyer Vicky Chandler Horn Clay Massey Bishop Miranda Dawn Click John Lewis Dotson William G. Geisen Erica Lynn Horn Rhonda Jenning Blackburn Ross Daniel Cohen Howard Neal Downing Ashley Dawn Gerughty Michael Keith Horn Susan Ulmer Blake Janet Humphrey Cole Whitney Dunlap III Richard A. Getty Zachary Adam Horn Erica Faye Blankenship Aaron Ann Rose Cole Denise Trauth Durbin Justin Scott Gilfert Bonnie Jo Hoskins Nute Alan Bonner Timothy Ray Coleman Robert W. Dyche III Karen Hoskins Ginn Pamela Yvette Hourigan David C. Booth Bayard Vincent Collier Jane Winkler Dyche Jill Lyn Giordano Dana R. Howard Richard M. Boydston Tia Jenay Combs Leigh Ann Dycus Joanne Wissman Glass Lisa Peyton Hubbard Peter James W. Brackney Gregory S. Condra Aaron Michael Dyke Thomas C. Glover Walter M. Hudson Jill Roland Brady Richard E. Cooper Walter Blaine Early III Thomas H. Glover Arden Winter R. Huff Frank Anthony Brancato Taylor Dan Cooper Thomas Ira Eckert Brandon C. Goehring Badge S. Humphries Richard Martin Breen Suzanne Doreen Cordery Francis H. Edelen, Jr. Steven Richard Gold Gretchen Marie Hunt Mark R. Brengelman Lindsay Anne Cordes Charles E. Edwards III Sharon Leslie Gold Andrea Renee Hunt

70 | MARCH/APRIL 2018 Kimberly Sue H. Price Will Jared Matthews Lacy Kent Overstreet David T. Schaefer William Eugene Thro Clifton Miller Iler Molly Mattingly Michael A. Owsley James R. Schaefer Krsna Isvara Tibbs David Brent Irvin William C. Mattingly Patrick D. Pace Michael A. Schafer Melissa L. Tidwell David Raymond Irvin John Erin McCabe Brian Keith Pack Martha Jean Schecter Karen J.T. Meier Kerry O’Neill Irwin Robert L. McClelland Reba Ann Page Jessica E. Schellenberger Eva Christine Trout Chad Marcus Jackson Glenn S. McClister Todd Smith Page Lori Ann Schlarman James W. Turner, Jr. Keith Alan Jeffries Craig Lewis McCloud Emily Lynn Pagorski Maria C. Schletker Thomas A. VanDeRostyne Harold M. Johns Melanie Laurel McCoy Melissa Hellen Palmer Kathleen K. Schmidt Michael J. Van Leuven Gary C. Johnson Jerry Lee McCullum Tandy Carol Patrick Patrick T. Schmidt Richard Allen Vance Christopher R. Johnson Kathie M. Mary Cortney E. Patton Jane Alcock Schmidt Palmer Gene Vance II Charles B. Johnson McDonald-McClure Christopher J. Paul Charles E. Schroer Misty Clark Vantrease Edward Lee Jones Jason Scott McGee Sarah Beth Payne-Jarboe George L. Seay, Jr. Bradley K. Vaughn Brandon C. Jones Earl Martin McGuire Lindsay Ayers Perdue Gary John Sergent Jay R. Vaughn Harlan E. Judd, Jr. Rhese David McKenzie Ronald S. Phillippi Kevin Floyd Sharkey Kacey Marr Vaught Shelly Ann Kamei Teresa Renee McMahan Don A. Pisacano Jeffery Scott Sharp Katherine Kern Vesely Laela Marie Kashan Martin J. McMahon, Jr. Allen Carl Platt II Jason Wesley Shepherd Christina Lynn Vessels Megan Patricia Keane Todd V. McMurtry Shari Polur Jeffrey Elliot Sherr Francisco J. Villalobos II Casey M. Keathley John Gary McNeill Sherry P. Porter Karen Lee Shinkle John Fredrick Vincent Linda M.S. Keeton Mark Stephen Medlin Bobby Keith Porter Tracy E. Shipley Robert Kim Vocke Robert F. Keith Alan Scott Meek Pamela H. Potter Michael L.Shortridge Carrie Rebecca Waide Elizabeth D. Kelsey Hart T. Megibben Boyce Leigh Powers Tiara B. Shoter Jonathan Lee Wampler Justin Shane Keown Anna Deskins Melvin John G. Prather, Jr. Patrick A. Shoulders Frank Edward Warnock David Dale King Elizabeth U. Mendel Damon Loyd Preston Shane C. Sidebottom Jody Christine Warren Edward M. King John Downing Meyers Milton Hance Price Deborah S. Sillls Amanda Jean Waters Whitney G. Kirk Cynthia Ann Millay Robert L. Prince Andrea C. Simpson Robert Thomas Watson Jeremy Kirkham Carl Theodore Miller Patricia Lynn Pryor Van Franklin Sims Patrick U. Watts Carrie E. Klaber James Thompson Miller Mary-Jo Pullen Mark Albert Sipek Daniel Isaac Waxman Virginia Ruth Klette Adam Clayton Miller Steven T. Pulliam Chad M. Sizemore Leonard A. Weakley, Jr. Raymond A. Knight Jonathan David Miller Wende D. R. Raderer Jennifer M. Skaggs Harry Patrick Weber William Gerard Knoebel Dianna Yvonne Miller Rebecca K. Ragland Gordon Ray Slone Jeremy Allan Weber William Lee Knopf Sarah K. Mills Ian Thomas Ramsey Linda Tally Smith Mark Clark Webster Angela Wynn Konrad James Carl Mills Richard M. Rawdon, Jr. James Stephen Smith Richard McKee Wehrle David Kenneth Koon Jennifer Orr Mitchell Edward Alan Ray, Jr. Mark Francis Sommer R. Leonard Weiner Angela D. Koshewa Theresa Marie Mohan R. Jonathan Raymon G. David Sparks Marc P. Weingarten Jennifer Lynne Kovalcik Donald P. Moloney Lou Anna Red Corn Herbert B. Sparks Kevin Patrick Weis John Edward Kuhn, Jr. Susan C. Montalvo-Gesser Ryan Clifford Reed Lloyd Emory Spear Terry Lynne Wetherby Timothy Daniel Lange Jennifer Ann Moore Paul E. Reilender, Jr. Sarah Cronan Spurlock Mark Wettle Stephanie D. Langguth Ashley Rose Morgan David T. Reynolds Chandrika G. Srinivasan Gerina Diana Whethers Daniel Merritt Laren Stephanie L. Morgan-White Robert Edward Rich Michael Boyd Stacy Tamela Jane White Thomas W. Lavender II Bryan Darwin Morrow Charles E. Ricketts, Jr. Casey C. Stansbury Erin Clark White Jonathon Clay Lee Denise M. Motta Christopher D. Roach D. Christian Staples III John C. Whitfield Roland R. Lenard Jesse T. Mountjoy Jesse Leo Robbins Amy Robinson Staples Frank A. Wichmann II Erwin Wayne Lewis Sean Eric Mumaw Jeffery Allen Roberts John Robert Steffen Serah E. Wiedenhoefer Darryl L. Lewis Christy L. Muncy Raymond R. Roelandt Michael J. Stegman Kyle Robert Wiete Robert D. Lewis, Jr. Linda S. Murnane Jeremy Stuart Rogers Garnie Cliff Stidham John M. Williams Danielle J. Lewis Melinda Ann Murphy Kenneth R. Root Mary Whitlock Stoddard Karl G. Williams Maurice Reeves Little Jennifer Marie Murzyn Raul Rosado, Jr. Robert Johnson Stokes, Jr. Michelle L. Williams Natasha C. Little Wesley Matthew Nakajima Joseph L. Rosenbaum Thomas Kendall Stone Mildred Gail Wilson Leslie Sue Litzenberg Lisa K. Nally-Martin Martha Alice Rosenberg J. Christopher Sturgeon Marvin Lee Wilson Travis Brian Lock Debra Anne Nelson Gerald Dale Ross Michael P. Sullivan Whitney M. Wilson Marc Allen Lovell Craig F. Newbern, Jr. Laura Milam Ross Thomas E. Swicegood Allen O. Wilson Sheryl Joyce Lowenthal Nicholas M. Nighswander Chasiti Paige Ross Damon R. Talley Lee F. Wilson Charles Ernest Lowther James G. Noll Thomas L. Rouse Kenji Tashiro April Ann Wimberg Mark Allen Loyd, Jr. Gregory Northcutt Thalethia B. Routt Marsha Taylor Linda C. Wimberly Stacy Shea Luna Mary Christine Nutter Thomas E. Rutledge Lescal J. Taylor Thomas B. Wine Jonathan W. Lynn Eileen M. O’Brien Kathryn W. Ryan Randall C. Teague Jennifer Marie Wolsing Steven Hayden Lyverse Julie Ann O’Bryan Perry Thomas Ryan Jason A. Templin Samuel Carlos Wood Mark Allen Maddox Margaret O’Donnell John David Ryan Timothy B. Theissen Frank C. Woodside III Nick Charles Maggard Michael A. O’Hara Abraham J. Saad Linda B. Thomas John W. Wooldridge Dennis Charles Mahoney John Kirk Ogrosky John F. Salazar Dennis Leo Thomas Roger G. Wright Thomas P. Maney Ann B. Oldfather Jeffery L. Sallee Tad Thomas LaTonia D. Wright Timothy Wayne Martin David Y. Olinger, Jr. Bradley S. Salyer Tacasha Thomas Alexander W. Wright Frank Mascagni III Kristen Kate Orr Courtney R. Samford Crystal Lynn Thompson Gerald E. Wuetcher Jacob S. Mason Peter L. Ostermiller Edward R. Sanders Michael D. Thompson Donald Craig York Jackie M. Matheny, Jr. James L. Overfield Joseph D. Satterley Ryan L. Thompson Wilbur Marks Zevely

BENCH & BAR | 71 THE WAIT IS OVER! IN MEMORIAM See Page 22 for Convention Details

Sailor, attorney and family patriarch, LARRY B. FRANKLIN passed away peacefully at home on Sunday Jan. 14, 2018. Born and raised in Shively, Ky., Franklin lived a life of extraordinary achievement, generosity and friendship. He was a graduate of Valley High-school where he was voted Mr. Valley High, a proud distinction he refused to let anyone forget. Following high-school, he was selected to attend the United States Naval Academy where he graduated with the honor of having the highest aptitude in his graduating class. His naval career lasted 36 more years culminating with his retirement from the United States Naval Reserves with the rank of Two-Star Rear Admiral (RADM). After serving on submarines in Vietnam, he attended night law school at the University of Louisville while working full-time at his Uncle Pat's appliance company. Grad- uating in 1967, he would go on to be widely known as one of the best lawyers in Kentucky and throughout the country, earning s a final tribute, theBench & Bar publishes brief him a coveted spot as a member of the Inner Circle of Advocates. memorials recognizing KBA members in good The above information for Larry B. Franklin was pulled from a ver- A standing as space permits and at the discretion of sion that appeared in the Courier-Journal from Jan. 17 to Jan. 19, the editors. Please submit either written information or a 2018. To access the full obituary, visit: https://www.legacy.com/obit copy of an obituary that has been published in a newspaper. uaries/louisville/obituary.aspx?pid=187868331. Submissions may be edited for space. Memorials should be sent to [email protected]. NEAL H. DOCKAL, died at his home on Wednesday, Aug. 30, 2017, at the age of 77 from the complications of Alzheimer’s Disease. Family and friends who knew Dockal are well aware of his per- NAME CITY STATE DATE DECEASED sonal and professional accomplishments. It was his insatiable desire Michael Louis Allen Louisville KY June 15, 2017 for higher education, however, that resulted in his leaving Galves- James E. Banahan Lexington KY October 9, 2017 ton and his work aboard a shrimp boat to pursue undergraduate studies at Lamar University. He subsequently attended the Uni- Bonnie Kay Biemer Louisville KY July 16, 2017 versity of Hawaii, UC Berkeley, and the Universities of Kentucky Robert J. Bohnert Louisville KY January 6, 2018 and Louisville, where he earned Master’s degrees in Social Work, Lloyd R. Cress Lexington KY December 27, 2017 Public Health Administration, Medical Behavioral Sciences and Sociology, and Criminal Justice Administration, respectively, as Benjamin C. Cubbage Jr. Henderson KY November 15, 2017 well as a Juris Doctorate from the Brandeis School of Law. The Neal Henry Dockal Jr. Louisville KY August 30, 2017 above information for Neal H. Dockal was pulled from a version that Carrie G. Donald Louisville KY January 13, 2017 appeared in the Courier-Journal on Sept. 3, 2017. To access the full obituary, visit: https://www.legacy.com/obituaries/louisville/obituary.aspx Larry Bruce Franklin Louisville KY January 14, 2018 ?n=neal-h-dockal&pid=186546400&fhid=10679. Pamela J. Fratini Clarksville IN January 21, 2018 Fred Hatmaker Louisville KY January 22, 2017 CHARLES RANDY KEETON, of Louisville, passed away on Feb- N. Theresa T. Hoagland Punta Gorda FL October 6, 2017 ruary 8 after battling Parkinson’s Disease for many years. Keeton was born on Nov. 8, 1949, in Ashland, Ky. He graduated from William C. Jacobs Lexington KY October 24, 2017 Boyd County High School in 1967, Marshall University in 1971 Brian Thomas Judy Frankfort KY December 8, 2017 and the University of Kentucky School of Law in 1975. Keeton Barbara B. Lewis Louisville KY November 7, 2017 began his distinguished legal career with Brown, Todd & Heyburn (now Frost Brown Todd) in 1975 and helped grow the firm from Philip W. Linder Atlanta GA July 13, 2017 28 to over 500 lawyers. He was a nationally recognized expert Samuel Manly Louisville KY January 18, 2018 on the Uniform Commercial Code, complex business bankruptcy Thomas E. O’Shaughnessy Lexington KY November 17, 2017 matters, and commercial and loan transactions. Keeton was generous with his time and intellect, widely respected as a “lawyer’s Donald Thomas Prather Shelbyville KY December 27, 2017 lawyer” and universally considered “the professor” or “the reclining Henry C. Prewitt Paris KY November 24, 2017 orator” among his colleagues at the firm. The above information Raymond L. Shelton Louisville KY January 2, 2018 for Charles Randy Keeton was pulled from a version that appeared in the Courier-Journal from Feb. 10 to Feb. 12, 2018. To access the full Lisa Elaine Underwood Lexington KY December 9, 2017 obituary, visit: https://www.legacy.com/obituaries/louisville/obituary. aspx?page=lifestory&pid=188130093.

72 | MARCH/APRIL 2018 ROBERT J. BONHERT, 82, of Louisville, passed away peacefully HOBART CLAY JOHNSON, 86 years of age, died at his home in on Saturday, Jan. 6, 2018, at Westport Place Health Care with his Virgie, Ky., on Feb. 1, 2018. He was a graduate of Virgie High family by his side. He was known to friends and family simply as School, Eastern Kentucky University, and the University of Lou- “Bob.” Bohnert was a man of integrity. His compassion, patience, isville School of Law. He served in the United States Air Force good counsel, wisdom, and humor were, and remain, examples to as an agent in the Office of Strategic Intelligence from 1952 to all. He was born June 6, 1935, in Louisville a son of the late Hector 1958. Upon his graduation from law school, he returned to Pike W. Bohnert and Bertha A. Miller Bohnert. Bohnert was a 1953 County, where he began his law practice, a practice which would graduate of St. Xavier High School and a 1964 graduate of the continue some 50 years. In the early 1960s he and the late Henry University of Louisville School of Law. He was looking forward to Stratton formed the partnership of Stratton and Johnson. Their celebrating his 45th year as an Assistant Jefferson County Attorney. firm developed one of the leading practices in the state in the area The above information for Robert J. Bohnert was pulled from a version of workers compensation. As a sole practitioner in the 1970s and that appeared in the Courier-Journal from Jan. 8 to Jan. 10, 2018. beyond, he was extensively involved in the banking and commu- To access the full obituary, visit: https://www.legacy.com/obituaries/ nications industries, and particularly the coal business, as an owner louisville/obituary.aspx?page=lifestory&pid=187767825. and operator of mines, processing plants, and brokerages in Pike, Floyd, and Letcher Counties In the early Eighties, he scaled back SAMUEL MANLY, IV , 72, passed away on Thursday, Jan. 18, 2018, his engagements in the legal and business world in order to devote after a brief illness. Manly was a preeminent trial attorney in Louis- more time to his various charitable and philanthropic interests, ville, and was widely regarded by his peers for his intellect and legal including his membership on the Board of Directors of Pikeville skills. A sole practitioner, he was previously associated with the law Medical Center; and his personal interests: golf, thoroughbred horse firms of Frank E. Haddad, and Greenebaum, Doll & McDonald. racing and breeding, and the family home on Hilton Head Island, He received his undergraduate degree, cum laude, from Yale Uni- S.C. During this time, he and his wife set about traveling the world, versity, and his J.D. from the University of Virginia. He was also a and at his death he had set foot upon all seven of the continents. diplomate of the Western Trial Advocacy Institute of the University of Wyoming School of Law. He was quite active in various bar RAYMOND LINDY SHELTON, 89, of Louisville passed away Tues- associations and was a Life Fellow of the Kentucky Bar Founda- day, Jan. 2, 2018, at Westport Place. Shelton was born Groundhog tion. Among many association memberships he was most proud Day, Feb. 2, 1928. He began his career as an announcer at WHAS of his work with the Kentucky Association of Criminal Defense Television, signing the station on in 1950. During 25 years there, his Lawyers (president, 2002) and the National Association of Criminal principal sponsor was Greater Louisville First Federal, for them he Defense Lawyers. Manly was listed in Who’s Who in American was spokesperson for more than 40 years. Highlights of his career Law, and at various times served as contract attorney for the Fed- included the American Bar Association Award; winning the Ed eral Deposit Insurance Corporation, the City of Louisville, and Sullivan local announcer audition; and winning the CBS Summer Jefferson County, Kentucky. He was counsel to former Kentucky Announcer audition for staff work in New York. From 1975 until Governor Louie B. Nunn, and was national product liability counsel retirement he served as Public Relations Director and V.P. at Ken- for Winston Industries, Inc. A patriot, he served as a Captain in tucky’s largest Savings & Loan, Greater Louisville First Federal. the Air Defense Artillery, United States Army Reserve, from 1967 While working at WHAS TV he began the practice of law and to 1976. The above information for Samuel Manly, IV, was pulled from continued for more than 50 years, with memberships in Kentucky a version that appeared in the Courier-Journal on Jan. 21, 2018. To and Louisville Bar associations. He was a long-time member of the access the full obituary, visit: https://www.legacy.com/obituaries/lou Downtown Kiwanis Club and the Brooks and Oak DuPont Manual isville/obituary.aspx?pid=187918091. Alumni Association. The above information for Raymond Lindy Shel- ton was pulled from a version that appeared in the Courier-Journal MILLICENT “MILLIE” ANN TANNER , 53, passed away on Feb. 8, from Jan. 5 to Jan. 7, 2018. To access the full obituary, visit: https:// 2018, after a long illness. Tanner graduated first in her class from www.legacy.com/obituaries/louisville/obituary.aspx?pid=187734380. the University of Texas School of Nursing in 1986. She worked DONALD PRATHER as a pediatric ICU nurse at Texas Children’s Hospital and Norton , age 61, passed away on Wednesday, Dec. 27, Kosair Children’s Hospital. She later attended the University of 2017. Prather was a partner for 32 years at Riggs, Prather, Rat- Louisville Law School, graduating second in her class in 1994. liff, and Bullock Law Office. He was a member of First Christian She was a partner with Thompson Miller & Simpson, where she Church and a Kentucky Colonel. He is survived by his wife Greta was a brilliant trial lawyer and displayed a keen understanding of B. Prather, his children, Virginia Pearce ( Joshua), Martin Prather medicine. She represented many hospitals and medical providers in and Anne Prather, step-children, Charles Crews and Greg Crews Kentucky and throughout the United States. She was much loved (Amanda), grandchild Ellie Peerce and three step-grandchildren by all who knew her. She was kind and generous, and her wit and Brody, Caitlyn and Lucille Crews, sister Sarah Martin Haydon soft voice made everyone listen. She touched many lives, and her (Tom), brother Stewart Lang Prather (Donna), aunts Frankie talents and friendship will be missed by her family and her many Stewart and June Rolph, and many loving cousins, nieces and friends. The above information for Millicent Tanner was pulled from nephews. The above information for Donald Prather was pulled from a version that appeared on the Pearson Funeral Home website. To access a version that appeared in the Sentinel News. To access the full obitu- the full obituary, visit: http://www.pearsonfuneralhome.com/obituaries/ ary, visit: http://www.legacy.com/obituaries/sentinelnews/obituary. Millicent-Tanner/#!/Obituary. aspx?pid=187661540.

BENCH & BAR | 73 THE WAIT IS OVER! WHO, WHAT, WHEN & WHERE See Page 22 for Convention Details

Have an item for Who, What, When & Where? The Bench & Bar wel- comes 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. 4WWHEN & WHERE

ON THE MOVE

Carl Frazier-Sparks has been named associate Leah Morrison recently joined English, Lucas, general counsel for Walmart Stores, Inc., in Ben- Priest & Owsley, LLP, as an associate attorney. tonville, Ark. In his new role, he is responsible for Morrison practices in the areas of tax law and managing discovery strategy for all of Walmart’s trusts and estates. She earned a B.A. from The products liability, commercial litigation, and intel- George Washington University in 2012. She lectual property matters across the country. Prior received her J.D., magna cum laude, from the Uni- to relocating to Arkansas, Frazier-Sparks was a versity of Louisville Louis D. Brandeis School of partner with Stoll Keenon Ogden PLLC in Lexington where his Law in 2015. She also received an LL.M., magna cum laude, from practice was primarily products liability and commercial litigation. the University of Alabama School of Law. Morrison is a member He graduated from Transylvania University with a B.A. in political of the Bowling Green-Warren County, Kentucky and American science and obtained his J.D. from the University of Kentucky Bar associations. College of Law. Frazier-Sparks was named Kentucky’s Most Out- standing Young Lawyer in 2016. Embry Merritt Shaffar Womack, PLLC, announces the addition Kevin Robinson to its Chris Spedding is pleased to announce the growing practice. Robinson will practice as of relocation of his law office to 271 W. Short counsel and he will focus in the areas real estate Street, Suite 100, Lexington, KY 40507. Sped- and condemnation. Robinson is a graduate of ding will continue his practice of 22 years in the Morehead State University and the University area of criminal defense and representing auto of Louisville Louis D. Brandeis School of Law. dealerships in a variety of matters including transactional work and regulatory matters. He Mattingly Ford, P.S.C., announces the addition can continue to be reached at (859) 255-0050 or (859) 270-1255 of Emily C. Moore, to their law practice. Moore and through email at [email protected]. is a Louisville native and received her B.S. from the University of Louisville, and her J.D. from Foreman Watson Holtrey, LLP, announces Chase Law School. Moore has written opinions that John F. Bennett has joined the firm. Ben- for both federal and state court judges and prac- nett graduated cum laude from Western Kentucky ticed law with an emphasis in litigation. Moore University in 2010, with a major in political sci- will focus her practice in the areas of estate planning, probate, Med- ence and a minor in criminology. In 2014, he icaid & elder law, business formation, small business compliance, earned his J.D., cum laude, from Salmon P. Chase buy-sell agreements, and corporate succession planning. College of Law. Bennett served as vice chair for the Young Lawyers’ Section of the Louisville Bar Association in Gwin Steinmetz & Baird PLLC is pleased to 2017. At Foreman Watson Holtrey, Bennett will work primarily announce that Elyse T. Watkins has joined the out of the Ohio County and McLean County offices, focusing his nursing home defense practice. Watkins is a 2016 practice on criminal defense, domestic relations, personal injury, graduate of the University of Kentucky College and other civil litigation. of Law and is admitted to practice in Kentucky.

74 | MARCH/APRIL 2018 Joshua D. Hicks and Gregory M. Funfsinn insurance coverage disputes. He is a graduate of Marshall Univer- announce the opening of Hicks & Funfsinn, sity and the University of Louisville School of Law. PLLC, a boutique civil litigation law firm with offices located at 431 South Broadway, Suite 331, Travis & Herbert is pleased to announce that in Lexington, Ky., and 111 Short Street, Law- Brian Stempien has joined the firm as a part- yer’s Row, in Harrodsburg, Ky. Hicks & Funfsinn, ner. Stempien is an experienced litigator, who PLLC, will prosecute and defend catastrophic focuses his practice in the areas of complex busi- accident and other claims involving injuries due ness and insurance litigation, bad faith, insurance to negligence or wrongdoing. Other practice areas fraud and subrogation. He also serves as a pilot will include financial disputes and workplace law- in the United States Marine Corps Reserve and suits. Hicks is a former United States Marine has been selected to take command of Marine Corps Sergeant, serving from 1999-2003. Hicks Light Attack Helicopter Squadron 773 in May of 2018. Travis & then worked as a police officer for Maysville Herbert has become Travis, Herbert & Stempien, PLLC, following Police Department for five years before attending Stempien’s addition to the firm as a partner. the University of Kentucky Law School, where he graduated in 2008. Hicks most recently worked as an attorney for Sylvia Quaye is announcing the launch of Stoll Keenon Ogden PLLC in its Lexington office. Funfsinn was SSQuaye Law, PLLC, a Louisville-based firm most recently a partner at Walters Meadows Richardson, PLLC, specializing in immigration and family law. and also worked as an attorney at Landrum & Shouse LLP. Prior Quaye earned a law degree at The Ghana School to moving to Lexington from Chicago in 2012, Funfsinn worked of Law, University of Ghana in Ghana before for the Cook County State’s Attorney’s Office as a criminal prose- immigrating to the U.S. in 2000. Like many cutor. He graduated from Chicago-Kent College of Law in 2007. immigrants, when Quaye arrived in the U.S., she discovered that her educational credentials didn’t transfer. After VanAntwerp Attorneys, LLP, is pleased to earning a Master’s degree in public administration from the Uni- announce that two attorneys have joined the versity of Louisville, she passed the Kentucky Bar exam, and was firm. Samantha Fields Sycks has more than 12 admitted. She spent three years with The Center for Women and years of experience in a broad range of litigation and transactional work. Sycks was in private practice for a number of years in Ironton, Ohio, where she worked in the areas of construction, employment, divorce and custody, criminal defense, juvenile law, real estate, wills and probate, and appellate advocacy. She earned her J.D. in 2005 from the University of Cin- cinnati College of Law and her Bachelor’s degree from Ohio University. Her practice will primarily include civil litigation, real estate transactions, and family law. Scott W. Andrews has joined the firm as a senior associate, specializing in litigation. He has over 25 years of experience as a litigator and was previously a partner at Offutt Nord, PLLC, in Huntington, W.Va., and was a founding partner of Hoover Andrews, PLLC, in Barboursville, W.Va. Andrews has worked for insurance defense handling a wide variety of cases, including motor vehicle accidents, slip and falls, products liability, mass tort litigation, industrial and workplace accidents, and bad faith and

BENCH & BAR | 75 WHO, WHAT, WHEN & WHERE

Families, a shelter for abused women. After a rewarding career in John “J.A.” Sowell recently joined English, corporate law, Quaye decided to launch her own practice, focusing Lucas, Priest & Owsley, LLP, as an associate. on immigration and family law services. SSQuaye Law, PLLC, He is practicing in personal injury and civil is located at 9850 Von Allman Court, Suite 201 in Louisville’s litigation. Sowell is a 2017 graduate of the Uni- East End. For more information, call (502) 298-9579 or visit versity of Louisville Louis D. Brandeis School of www.ssquayelaw.com. Law. He earned his B.A. in 2013 from Western Kentucky University. Sowell is a member of the Kentucky State Treasurer Allison Ball recently announced that Bowling-Green Warren County, Kentucky and Lorran Hart Ferguson has joined her office as deputy general American Bar associations. counsel and communications director. Ferguson received her B.A. from Lindsey Wilson College and her J.D. in 2017 from the Uni- Gary C. Johnson, P.S.C., announces that Jen- versity of Kentucky College of Law. nifer L. Thompson has joined the firm and will concentrate her practice on mass tort and medical Angela L. Edwards joined Lawyers Mutual malpractice cases on behalf of injured individuals, Insurance Company of Kentucky on February as well as other complex litigation matters. She 5th. She will assume the position of chief execu- will work out of Louisville for the Pikeville-based tive officer on July 1, 2018. During this interim firm. Thompson earned her J.D. from the Uni- period Edwards will work closely with Asa P. versity of Dayton School of Law. She is licensed to practice in “Pete” Gullett, Lawyers Mutual’s current exec- Kentucky, Indiana and Ohio. utive vice president and chief executive officer, the company staff, and the board of directors. Upon assuming the Morgan & Pottinger, P.S.C., recently announced position of chief executive officer, and in partnership with the board that Michael Troutman joined the firm’s Lou- of directors, Edwards will be responsible for company policy, plan- isville office as a senior associate. Troutman’s ning, and directing day-to-day company operations. Gullett will practice focuses on business law and litigation, step down from his position on July 1st. He will continue to work family law, employment and labor law, and estate at Lawyers Mutual as assistant claims counsel, offer CLE presenta- planning. Troutman joined Morgan & Pottinger tions, and be a resource on legal malpractice matters for Kentucky after more than six years in practice as a solo lawyers. Prior to joining Lawyers Mutual, Edwards was a partner practitioner. He is a graduate of the Brandeis School of Law at in the litigation department of Dinsmore & Shohl, LLP. Edwards the University of Louisville and he completed his undergraduate received a J.D. from the University of Kentucky College of Law degree at the University of Kentucky. and her bachelor’s degree in finance from Transylvania University.

Gregory T. Dutton has joined Frost Brown Todd as a member of the Louisville office and the firm’s environmental practice group (EPG). Dutton focuses his practice in environmental compliance and litigation, utility regulation and energy law. He has represented clients in federal and state litigation and administrative matters involving the Clean Water Act (CWA), Clean Air Act (CAA), and the Comprehensive Envi- America’s Premier Civil-Trial Mediators & Arbitrators Online ronmental Response, Compensation and Liability Act (CERCLA), and has prac- NADN is proud to partner with the National Defense and Trial Bar Associations ticed before the Kentucky Public Service Commission (PSC). The EPG serves as litigation counsel, defends civil and criminal enforcement actions, prosecutes administrative appeals, counsels clients on regulatory matters, conducts audits and internal investigations, and provides envi- View Bios & Availability Calendars for the top-rated neutrals in each state, as approved by local litigators ronmental representation on real estate and corporate transactions. He earned his J.D. and a Certificate in Environmental Law at www.NADN.orgwww.NADN.org Pace Law School in White Plains, N.Y., and Our free database was used by 8000+ law offices in 2017, to schedule over 100,000 mediations and arbitrations also holds a degree in environmental science from Miami University in Oxford, Ohio.

76 | MARCH/APRIL 2018 IN THE NEWS since joining the firm in 2007. His practice is primarily focused in the areas of medical malpractice defense, professional liability Jessica Surber became a partner at English, defense, toxic torts, premises liability defense and products liability Lucas, Priest & Owsley, LLP, (ELPO) on Jan. 1, defense. Hart attended the University of Kentucky College of Law. 2018. Surber works primarily in ELPO’s personal injury practice group. She represents plaintiffs in C. Dean Furman, Jr., is serving as the 2018 pres- nursing home abuse and neglect, medical mal- ident of the Louisville Bar Association, a 3,000 practice and pharmaceutical and medical device member local bar association. He practices com- products liability cases. She also handles car acci- mercial litigation, personal injury, whistleblower, dent and other personal injury cases. Surber has a Bachelor of and federal criminal healthcare defense in Lou- Science degree in accounting from Western Kentucky University isville for Furman & Nilsen, PLLC. and a J.D. from the University of Kentucky College of Law, where she earned the Order of the Coif and served on the Kentucky Law Embry Merritt Shaffar Womack, PLLC, Journal. announces that Samantha Tucker Nance has become a member with the firm. Nance focuses Wyatt, Tarrant & Combs, LLP, announces Alli- her practice in the areas of health care and civil son L. Brown and R. Benjamin Straus as newly litigation, real estate, and appellate matters. She elected partners. The firm also elected Carole has successfully represented numerous clients D. Christian to the firm’s executive committee. in complex matters across the Commonwealth. Allison L. Brown focuses her practice in the Nance is a graduate of Transylvania University and the University areas of health care litigation, employment mat- of Kentucky College of Law. ters and commercial disputes and has experience with Open Records and Open Meetings issues. The members of Frost Brown Todd LLC (FBT) Brown earned her law degree with high honors have elected Robert V. Sartin to serve as chair- from the University of Washington School of man of the firm. Sartin’s initial three-year term Law. R. Benjamin Straus concentrates his prac- began Jan. 1, 2018. Sartin has served on FBT’s tice on commercial lending transactions and the nine-person executive committee since 2012. sale, acquisition, leasing and development of com- He joined the firm in 2006 and was member-in- mercial property. Straus earned his law degree charge of the Lexington office from 2008-2011. from the University of Louisville Brandeis School He has previously served on the firm’s strategic planning, finance, of Law. Carole Douglas Christian is chair of the and advancement committees. Sartin also co-chairs the firm’s auto- firm’s health care service team. She focuses her motive industry team. As chairman, Sartin will focus on driving the practice in the areas of health care and related lit- firm’s growth and strategic planning, ancillary business ventures, and igation and counsels clients on new and emerging new business opportunities. He will also serve on the firm’s executive issues in health care regulation. Christian earned and compensation committees. Sartin succeeds John R. Crockett, her J.D. with high honors from the University of III, who has served as FBT’s chairman for the past nine years. Louisville Brandeis School of Law. Lexington attorney Laura D’Angelo Holoubek The law firm of Buckley King is expanding into was a featured speaker on the racing industry at Louisville and has hired Bill Mabry to lead the the National Council of Legislators from Gaming initiative. This addition expands both the firm’s States (NCLGS) Winter Meeting January 5-7 footprint as well as its offerings to clients, partic- in Miami. The meeting included policymakers ularly in the area of healthcare. Mabry, formerly a from the highest levels of state government dis- partner with Frost Brown Todd, has dedicated his cussing the future of legal sports betting in the career to healthcare law, representing healthcare United States. Holoubek, head of the equine law practice group at facilities and providers across the United States and in England, Dinsmore & Shohl LLP, presented as part of the winter meet- including hospitals, physicians, home healthcare agencies, as well ing’s committee on pari-mutuel. The presentation, included remarks as nursing homes, provider sponsored organizations, teaching insti- from Delaware House Majority Whip John Viola and EquiLot- tutions, diagnostic centers and ambulatory centers. Mabry received tery CEO Brad Cummings, and explored trends and issues in the his J.D. from the University of Kentucky School of Law, his M.P.A racing industry, including how potential pari-mutuel wagering on from the University of Kentucky, and his B.S. from Morehead State different sports such as daily fantasy sports auto racing may be an University. opportunity or threat for the operators of traditional pari-mutuel wagering on horses and dogs. Phillips Parker Orberson & Arnett is pleased to announce that Nicholas R. Hart is now a partner with the firm. Hart has had an Bingham Greenebaum Doll LLP is excited to announce that P. active trial and appellate practice in both Kentucky and Indiana Branden Gross has been named the new managing partner of

BENCH & BAR | 77 THE WAIT IS OVER! WHO, WHAT, WHEN & WHERE See Page 22 for Convention Details

the Lexington office. Gross joined the firm in early 2017. He has Worley joins McBrayer’s Angela Evans, Councilmember from experience in a wide range of real estate, land use, and finance the 6th District, on the Lexington-Fayette Urban County Council. law. He is currently the chair of the Legislative Committee for the Kentucky Land Title Association, a member of the Financial Nathan Vinson became a partner at English, Institutions Board, chair of the Board of Adjustments for Lex- Lucas, Priest & Owsley, LLP, (ELPO) on Jan. ington-Fayette Urban County Government, and a member of the 1, 2018. Vinson handles tax law, estate and pro- Board of Directors of the Commercial Property Association of bate cases and corporate transactions at ELPO. Lexington. Gross received both his undergraduate degree and J.D. He works with clients who need tax planning from the University of Kentucky. for their personal property or businesses. Vinson has handled entertainment law cases as well. He McBrayer attorney Preston Clark Worley was holds a Bachelor of Science in mass communications from Middle sworn as Councilmember for the Lexington-Fay- Tennessee State University, a Master of Business Administration ette Urban County Council’s 7th District. With from Eastern Kentucky University and a J.D. from the University one year left in the term, Councilmember Jennifer of Kentucky College of Law. He also holds an LL.M. in Taxation Scutchfield resigned to become assistant director from the Levin College of Law at the University of Florida. of the Kentucky Board of Elections, leaving the role to be appointed by Mayor Jim Gray. Worley The American Board of Certification has has practiced law at McBrayer‘s Lexington office since 2010, announced that Bradley S. Salyer, an attorney focusing his efforts in real estate, transactional, administrative law with Morgan & Pottinger, P.S.C., has success- and litigation. Worley is also a board member with the Ellerslie fully completed the requirements for national at Delong Homeowners Association and with Coaches for the certification in creditors’ rights law. This achieve- Kids, Inc. He has participated in both the University of Kentucky ment makes Salyer one of only two ABC board Children’s Hospital Executive Development Council and the certified lawyers in creditors’ rights in Kentucky. Golden Matrix Fund Advisory Council since 2012, and he acts Creditors’ rights matters involve state, federal and bankruptcy as general counsel for the Lexington History Museum. Preston courts, and legal issues such as secured transactions pursuant to

78 | MARCH/APRIL 2018 the Uniform Commercial Code, creditors’ rights in bankruptcy Dinsmore & Shohl LLP has elected attorneys R. Kenyon Meyer proceedings, and commercial and consumer collections. ABC cer- to its board of directors. Meyer is a partner in the litigation depart- tification recognizes lawyers who have met rigorous and objective ment and office managing partner of the firm’s Louisville office. certification standards in the fields of creditors’ rights law and His litigation experience includes class action suits, breach of fidu- bankruptcy through experience, substantive knowledge and peer ciary duties, commercial disputes, wrongful discharges, and trade recognition. Salyer’s practice focuses on creditors’ rights, bank- secret and restrictive covenant issues on behalf of employees and ruptcy, commercial litigation, loan workouts, loan documentation employers. In addition, 17 attorneys return to Dinsmore’s Board of and appellate law. He was appointed by the United States Trustee Directors, including: Chauncey S.R. Curtz, Lexington; Barbara to the Panel of Chapter 7 Trustees for the Western District of B. Edelman, Lexington; Charles M. Roesch, Cincinnati; and John Kentucky in 2017. He also leads M&P’s Bowling Green office and E. Selent, Louisville. was instrumental in the firm’s efforts to open an office in South Central Kentucky. Salyer joined M&P in 2009 after graduating Yew Dell Botanical Gardens recently appointed from the University of Kentucky College of Law. Stites & Harbison, PLLC, attorney Sarah Cronan Spurlock to its Board of Directors. Yew Kentucky Defense Counsel, Inc., (KDC) is Dell Botanical Gardens is recognized around the pleased to announce its officers for 2017-18: world as a center of gardening, plants and educa- President -Wm. Mitchell Hall of VanAntwerp tion. Yew Dell is listed on the National Register Attorneys, Ashland; President-Elect - Darrin of Historic Places and is a Preservation Partner Banks of Porter, Banks, Baldwin & Shaw, Project of the Garden Conservancy, a national non-profit dedi- Paintsville; Vice President - Claire Parsons of cated to saving the nation’s most remarkable gardens. Spurlock is Wm. Mitchell Hall Adams, Stepner, Woltermann & Dusing, Cov- a member (partner) of Stites & Harbison based in the Louisville ington; Secretary/Treasurer - Paul T. Lawless, office. She is a member of the firm’s health care service group and Bell Orr Ayers & Moore PSC, Bowling Green; is co-chair of the firm’s privacy & data security group. Immediate Past President - Beth Lochmiller of Coleman, Lochmiller & Bond, Elizabethtown. The Lawrence Firm, PSC, is proud to announce These individuals will also serve as KDC’s Exec- that attorney Lindsay Lawrence was recently utive Committee. Additionally, Jarad N. Key of elected to the board of governors for the Amer- Darrin Banks Goldberg Simpson, LLC, Prospect was named ican Association for Justice. Lawrence has also KDC’s YLS Chair and will serve a two-year been elected as the co-chair of the Tomorrow’s term on KDC’s Board of Directors. Kentucky Leaders Board for the Cincinnati Cystic Fibro- Defense Counsel wishes to recognize the follow- sis Foundation. Also, Lawrence was named for a ing KDC members and their recognition by DRI: second consecutive year as a 2018 Super Lawyer R. Jeffrey Lowe of Kightlinger & Gray, LLP, Rising Star in the area of personal injury litigation. Lawrence is Louisville was nominated and elected a national licensed in Ohio and Kentucky and focuses her practice on repre- Claire Parsons director of DRI - The Voice of the Defense Bar senting individuals and their families in the areas of personal injury and will serve a one-year term. Lowe currently and medical malpractice. serves as a director for KDC. Casey C. Stansbury of Mazanec, Raskin & Ryder, Lexington, who O’Bryan, Brown & Toner, PLLC, is pleased served as president of KDC from 2014 to 2015, to announce that Benjamin Weigel has been received DRI’s Davis Carr Outstanding Com- named a partner with the firm. Weigel is from mittee Chair Award at the DRI Annual Meeting Somerset, Ky., and received his J.D., cum laude, Paul T. Lawless Awards Luncheon. Beth Lochmiller of Cole- from the University of Louisville. He is licensed man, Lochmiller & Bond, Elizabethtown, who to practice law in both Kentucky and Indiana. served as president of KDC from 2016-17, was His practice includes defense of physicians and selected to serve as the DRI State Representative hospitals in medical negligence claims, defense of first party and for Kentucky and began a three-year term at the third party insurance bad faith claims and the defense of general conclusion of the DRI Annual Meeting in Octo- liability claims. ber. She replaces Kit Hornback of Reinhardt & Beth Lochmiller Associates, Lexington, whose three-year term Kenton Circuit Court Clerk John Middleton is serving as ended in October; Hornback served as president president of the Kentucky Association of Circuit Court Clerks of KDC from 2013-14 Todd S. Page of Stoll (KACCC). As president Middleton represents 116 circuit clerks Keenon Ogden, PLLC, Lexington, was named who are members of the KACCC and over 1,700 deputy clerks membership chair for DRI and will serve a two- throughout the Commonwealth. He previously served as 1st vice year term. president, 2nd vice president and secretary of the association. Prior to being elected circuit clerk, he was an attorney in private practice and was an assistant Kenton County attorney. Middleton has been Jarad N. Key

BENCH & BAR | 79 WHO, WHAT, WHEN & WHERE

active in his community serving as president of Redwood Rehabili- partnership effective Jan. 1. Mattingly is a member of the litigation tation Center, president of the Covington Optimist, president of the department and focuses his practice on commercial litigation and NKY Board of the American Heart Association and on the Planned tort matters, with an emphasis on trial practice. His litigation expe- Gifts Committee of St. Elizabeth Hospital. He has a B.A. from rience includes commercial disputes, intellectual property litigation, the University of Kentucky and a J.D. from Chase College of Law. wage and hour litigation, and the defense of complex personal injury and health care negligence cases. Mattingly has appellate experi- Taft Stettinius & Hollister LLP announces that ence before the Kentucky Court of Appeals, the Kentucky Supreme the Sarah Clay Leyshock has been elected to the Court and the United States Sixth Circuit Court of Appeals. He firm’s partnership. Leyshock represents employers earned his J.D. from the University of Louisville Louis D. Brandeis in all types of matters involving state and federal School of Law. employment laws. With significant experience in the higher education, hospital, restaurant and Morgan & Pottinger has named Mindy Sun- staffing industries, she regularly defends employ- derland managing director of the firm’s Louisville ers in state and federal courts, conducts employee office. Sunderland will be the first woman to serve misconduct investigations, provides personnel and risk management as managing director since the firm was founded advice, drafts employment policies and legal documents and resolves in Louisville in 1974. The firm’s shareholders also charges of discrimination filed with the EEOC. Leyshock received elected Tom Coffey as the newest member of the her B.A. in communication arts and psychology, magna cum laude, executive committee. Scott Rickman will con- Mindy Sunderland from Georgetown College and earned her J.D. from Northern Ken- tinue as managing director of the firm’s Lexington tucky University Salmon P. Chase College of Law. office. Sunderland replaces Tom Fenton, who has served as the firm’s managing director in Lou- Stites & Harbison, PLLC, recently announced isville since 2014. Fenton will continue his law that Brian Pollock has been promoted to member practice in banking and finance law, commercial (partner) within the law firm effective January litigation and business planning and transactions. 2018. Pollock’s practice focuses on representation Sunderland is a shareholder and the first woman Tom Coffey of creditors in bankruptcy court, commercial and to serve on the firm’s executive committee, a posi- residential foreclosures, lender liability matters, tion she has held since 2013. Her law practice includes banking and defense of avoidance and preference actions, real finance law, commercial real estate and matters under the Uniform estate litigation, and commercial litigation. He Commercial Code. She attended the University of Kentucky College edits and contributes to Creditors’ Sidebar, a legal blog focused on of Law after completing her undergraduate degree at Transylvania bankruptcy and creditors’ rights issues. University. Coffey, a trial and personal injury lawyer, will replace John McGarvey on the executive committee. Coffey attended Providence Rebecca Simpson became a partner at English, College, Harvard Divinity School and Notre Dame Law School. He Lucas, Priest & Owsley, LLP, (ELPO) on Jan. currently serves as president of the Brain Injury Alliance of Kentucky. 1, 2018. Simpson has been a licensed attorney for more than 18 years. Simpson previously practiced family law with firms in Louisville and Bowling Green. At ELPO, she practices in family law and offers mediation services. Her family law practice encompasses adoption, child support, custody issues, divorce litigation, co-parenting issues and grandparent visitation. Simpson serves as the chair-elect of both the Family Law and the Alternative Dispute Resolution sections of the KBA, and she serves as the chair of the ELPO Diversity Committee. Simpson earned a Bachelor of Arts degree from Western Kentucky Uni- versity, summa cum laude and a J.D. from the University of Louisville Louis D. Brandeis School of Law, cum laude.

Dinsmore & Shohl LLP announces that Stephen Mattingly has been elected to

80 | MARCH/APRIL 2018 McGarvey will continue his law practice in banking and finance law, advanced, promoted or supported diversity and inclusion in the commercial litigation and the Uniform Commercial Code. profession of law. Murrell is a Fellow of the Litigation Counsel of America and the Intellectual Property Institute. In addition to Theresa A. Canaday has assumed the role of lit- his litigation practice, Murrell is one of the managing partners igation department chair at Frost Brown Todd at Middleton Reutlinger and continues to seek the promotion of (FBT). Canaday takes the reins from Adam Hall, women and minorities in the profession. who was promoted to chief executive officer in January 2018. FBT’s Litigation Department Fisher Phillips, announced that attorney Mark Gomsak, of the houses seven litigation practice groups, among Louisville office, has been elected a partner. Gomsak represents them the business litigation practice group, which and advises employers in a wide array of labor and employment Canaday chaired for the past two years. Canaday, matters in Kentucky and around the country. He has counseled who joined FBT in 2001, continues to maintain an active law prac- employers concerning discipline and termination of employees, tice and focuses on representing Fortune 500 and Fortune 1000 litigation prevention, enforcement of non-compete and non-solic- corporations, closely-held businesses, startups and entrepreneurs itation agreements, and compliance with various federal and state in complex business matters. In 2017, Canaday was recognized in laws. In addition, a significant portion of his practice includes Benchmark Litigation Magazine as one of the nation’s “Top 250 defending clients in Occupational Safety and Health Administra- Women in Litigation.” tion (OSHA) citation contests.

Dennis Murrell, of the law firmMiddleton Bailey Roese, an associate at Bingham Greenebaum Doll (BGD) Reutlinger, has received a 2017 Diversity Award in Louisville, was named as general counsel for the Kentucky Dem- from the Diversity Law Institute (DLI). The pre- ocratic Party. She has been with BGD since 2013 and is a member sentation was made on November 3 at the 2017 of the firm’s tax & employee benefits practice group. Outside of her Diversity Law Institute Summit & Awards in work, she is president of the Board of Louisville Girls Leadership Philadelphia. DLI Diversity Awards are given and a 2015 graduate of Emerge Kentucky, a training program for annually to a select number of individuals, law women interested in public office. firms and companies who have at an elite level

BENCH & BAR | 81 WHO, WHAT, WHEN & WHERE

LaJuana S. Wilcher, partner with English, Lucas, Priest & Owsley, LLP, in Bowling Green, addressed audiences recently at two national environmental law conferences. In November 2017, she spoke at the National Association of Clean KENTUCKY BAR ASSOCIATION IS Water Agencies’ National Clean Water Law Sem- inar in Savannah, Ga. Wilcher gave the luncheon NOW ON FACEBOOK AND TWITTER! address on Cooperative Federalism and Environ- mental Protection. On Dec. 4, 2017, in Washington, D.C., Wilcher served as the keynote speaker for attendees at the Clean Water Act Law and Regulation 2017 Conference, co-sponsored by the Amer- FIND US ON FACEBOOK ican Law Institute and the Environmental Law Institute. Wilcher reflected on her time as the head of the U.S. EPA’s Water Office @ KENTUCKY BAR ASSOCIATION (assistant administrator) in Washington, D.C., in the 1990s and as Kentucky’s Environmental and Public Protection Cabinet Secretary (serving from 2003 to 2006). She also addressed the relationships FIND US ON TWITTER @ KyBarNews between the federal and state government environmental agencies, and how EPA interpretations of key provisions of the CWA have evolved over the years. She also examined the intent of Congress concerning those provisions as expressed in legislative history. THE WAIT IS OVER! See Page 22 for Convention Details

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84 | MARCH/APRIL 2018

Standing Ready to Serve Kentucky.

RECENT SUCCESSES $8 MILLION $25 MILLION verdict in Kentucky – Nursing Home Abuse settlement in Kentucky – Consumer Protection Case

verdict in settlement settlement Alabama – in Missouri – Lawyers Helping People—Since 1890 $2.8 $750 $392 in Texas – Corporate GMO Rice BILLION MILLION MILLION Whistleblower Fraud Contamination HARE WYNN has more than 125 years of experience and a team of lawyers, staff, and experts that are ready and willing to partner In the last five years, our personal injury clients have recovered with you. By partnering with us, you won’t break the bank, put a more than $230 million in verdicts and settlements. hold on your other cases or miss out on quality time with your family. As your ally, we’ll bear the burden, and you’ll see the results. LET’S GET ACQUAINTED LEXINGTON 200 West Vine Street, Suite 700 IF YOU’D LIKE TO PARTNER WITH US ON A CASE, GIVE US A CALL. Lexington, KY 40507 855-359-6555 | [email protected] Matthew C. Minner, Managing Partner

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