IN THIS ISSUE Lawyer Wellness

POWERING PAYMENTS FOR THE Trust Payment IOLTA Deposit Amount LEGAL $ 1,500.00 INDUSTRY Reference The easiest way to accept credit, NEW CASE debit, and eCheck payments Card Number **** **** **** 4242 The ability to accept payments online has become vital for all firms. When you need to get it right, trust LawPay's proven solution.

As the industry standard in legal payments, LawPay is the only payment solution vetted and approved by all 50 state bar associa- tions, 60+ local and specialty bars, the ABA, and the ALA.

Developed specifically for the legal industry to ensure trust account compliance and deliver the most secure, PCI-compliant technology, LawPay is proud to be the preferred, long-term payment partner for more than 50,000 law firms.

Proud Member Benefit Provider

ACCEPT MORE PAYMENTS WITH LAWPAY 877-958-8153 | lawpay.com/kybar

This issue of the Kentucky Bar Association’s VOL. 85, NO. 3 B&B-Bench & Bar was published in the month of May. COMMUNICATIONS & PUBLICATIONS COMMITTEE James P. Dady, Chair, Bellevue Contents Paul Alley, Florence 2 President’s Page Elizabeth M. Bass, Gallatin, Tenn. By Tom Kerrick Rhonda J. Blackburn, Pikeville Jenn L. Brinkley, Pensacola, Fla. 6 Justice Donald C. Wintersheimer: A Memorial Rachelle C. Bolton, Lexington By James P. Dady Frances E. Catron Cadle, Lexington 10 2021 KBA AC Wrap Up Elizabeth A. Deener, Lexington Cathy W. Franck, Crestwood Features: Lawyer Wellness Lonita Baker Gaines, Louisville 12 Kentucky Bar Comes to Grips with Lawyer Suicide William R. Garmer, Lexington By James P. Dady P. Franklin Heaberlin, Prestonsburg Judith B. Hoge, Louisville 16 The Impact of the COVID-19 Pandemic on Jessica R. C. Malloy, Louisville Lawyer Mental Health: One Year Later Eileen M. O'Brien, Lexington By Yvette Hourigan Sandra J. Reeves, Corbin John Schaaf, Georgetown 22 Perfectionism: Myth vs. Reality By Vitale Buford Gerald R. Toner, Louisville Sadhna True, Lexington Columns Zachary M. Van Vactor, Louisville Samuel W. Wardle, Louisville 24 University of Louisville Louis D. Brandeis School of Law Michele M. Whittington, Frankfort 26 Northern Kentucky University Salmon P. Chase College of Law PUBLISHER 28 University of Kentucky J. David Rosenberg College of Law John D. Meyers 30 Young Lawyers Division EDITOR By Miranda D. Click James P. Dady 32 Effective Legal Writing MANAGING EDITOR By Professor Kristin J. Hazelwood Megan L. Couch 34 Law Practice Management By Robert (Bob) Young DESIGN & LAYOUT Jesi L. Ebelhar Bar News 36 Board of Governors Minutes The B&B - Bench & Bar (ISSN-1521-6497) is published bi-monthly by the Kentucky Bar 37 Pro Hac Announcement Association, 514 West Main Street, Frankfort, KY 40601-1812. Periodicals Postag­­ e paid at 40 KBA Ethics Opinion E-453 Frankfort, KY and additional mailing offices. 48 Bar Applicant Listing All manuscripts for publication should be sent to the Man­aging Editor. Permission is granted Departments for reproduction with credit. Publication of any article or statement is not to be deemed an 50 Kentucky Lawyer Assistance Program endorsement of the views expressed therein by the Kentucky Bar Association. 52 Kentucky Bar Foundation Subscription Price: $20 per year. Members 54 Continuing Legal Education subscription is included in annual dues and is not less than 50% for the lowest subscription price paid by subscribers. For more information, call (502) 564-3795. 59 Who, What, When and Where POSTMASTER Send address changes to: B&B - Bench & Bar 514 West Main Street Cover and several inside graphics by ©istockphoto.com/JesiEbelhar Frankfort, KY 40601-1812 BENCH & BAR | 1 PRESIDENT'S PAGE

pushing through the negative Focusing on the

Positive BY TOM KERRICK, KBA PRESIDENT

ard to believe my year is up! Candidly, it has been a frus- Some positive points I think we have experienced during this year trating year due to the COVID-19 pandemic, but I’ll get have been our town hall meetings in each of our seven Supreme over the whining and talk about the positive. First, there Court Districts and each of our three law schools. Total people Hare so many people to thank. My family for taking away participating were 453. While this year’s district town hall meeting time from them. My law firm and staff for keeping everything going could have been entitled KBA 101, our future town halls will be while I was busy with Kentucky Bar Association (KBA) matters. A much more current and issue driven. Touching base with our law special thanks to our office administrator, Tom Hulsey, and paralegal schools, particularly the 3rd year classes, and introducing them to Dana “Sparky” Faxon. The KBA’s Executive Committee (Steve, J.D., the KBA and welcoming them to our profession has been positive. Amy & Miranda) and Board of Governors, who I felt always had Having our Kentucky Law Update (KLU) programs and our the best interest of the KBA in mind as well as my back. Finally, annual convention virtually was challenging because we could not the KBA staff and department heads who are completely dedicated be in-person, but attendance was strong (KLU 8,497 and Con- to their jobs and easy to work with. A special thanks to Melissa vention 1,847) and it allowed the KBA to reach members we had Blackwell, who kept me on track on a weekly basis and is the oil not reached before. There was enough positive from the virtual to our well-oiled organization. presentations that our KLU programs will keep doing a portion of each session virtually, so attorneys can watch at their convenience.

2 | MAY/JUNE 2021 Kentucky lawyers deserve steadfast support.

Our team is devoted to serving your liability malpractice needs. For more information call us at 502-568-6100 or Submit for a quick quote at www.LMICK.com

Lawyers_Mutual_women_B&B_8.5x10.875.indd 1 3/19/20 1:08 PM PRESIDENT'S PAGE

While we began Lawyers Advocating allowed me to confirm my belief about our KBA --- that Wellness (LAW) initiative with a the overwhelming majority of our members are hardwork- relatively simple idea of making attor- ing, trustworthy and caring individuals who happen to be neys more conscious of their physical attorneys. I am proud to be a Kentucky attorney and it was well-being, due to our rash of suicides, my honor to serve as your president. LAW has developed much broader goals of addressing mental health and Selfishly, the one thing I had hoped to do during my term suicide. We have a LAW committee in was to play golf with a group of attorneys in each district place for each of our seven districts, which at a golf course that I had never played. And although I was hopefully will help connect your district with not able to accomplish this goal, during my presidency, I would still statewide matters as well as address issues that may be unique to welcome invitations to come play golf around our Commonwealth your area. We have created a Mental Health Collaboration group with other Kentucky attorneys. of many Bar related organizations that will help coordinate efforts statewide to address mental health and encourage each of their members to be involved and responsive to this issue. We must Keep up the good continue to talk about and expose the mental health/suicide issue in our profession in an attempt to address it, as opposed to keep- work, best wishes ing it in the dark and refusing to admit it. We must get better at recognizing the signs and symptoms and become open to getting treatment for ourselves and our colleagues. for the future, and

Although COVID prevented me from traveling the state, virtual meetings from Paducah to Pikeville and Covington to Corbin have thank you.

t e r m s e x p i r e o n t h e KBA BOARD OF GOVERNORS On June 30 of each year, terms expire for seven (7) of the fourteen (14) Bar Governors on the KBA Board of Governors. SCR 3.080 provides The current terms of the following that notice of the expiration of the terms of the Bar Governors shall be carried in the Bench & Bar. SCR 3.080 also provides that a Board Board Members will expire on member may serve three consecutive two-year terms. Requirements June 30, 2022: for being nominated to run for the Board of Governors are contained 1st District – James A. Sigler, Paducah in Section 4 of the KBA By-Laws and the requirements include filing a nd written petition signed by not less than twenty (20) KBA members in 2 District – Matthew P. Cook, Bowling Green good standing who are residents of the candidate’s Supreme Court 3rd District – Douglas G. Benge, London District. Board policy provides that “No member of the Board of 4th District – Susan D. Phillips, Louisville Governors or Inquiry Commission, nor their respective firms, shall 5th District - Amelia M. Adams, Lexington represent an attorney in a discipline matter.” In addition, any member 6th District – Jennifer M. Gatherwright, Crescent Springs of the Bar who is considering seeking or plans to seek election to th the Board of Governors or to a position as an Officer of the KBA will, 7 District – William M. “Mitch” Hall, Jr., Ashland if elected, be required to sign a limited waiver of confidentiality regarding any private discipline he or she may have received.

Any such petition must be received by the KBA Executive Director at the Kentucky Bar Center in Frankfort prior to the close of business on the last business day in October. Please visit the KBA website at www.kybar.org/petition to obtain a petition.

4 | MAY/JUNE 2021 BENCH & BAR | 5 JUSTICE WINTERSHEIMER

JUSTICE DONALD C. WINTERSHEIMER: a memorial BY JAMES P. DADY

onald Carl Wintersheimer, who served with great distinction Appellate judges attempting to harmo- and in high public favor as an appellate judge in Kentucky nize the common law with new societal Dfor more than three decades, died at his home in Covington conditions are met with the criticism February 18, 2021. Justice Wintersheimer was 89. that they are invading the jurisdiction of the legislature and that they are not Justice Wintersheimer served as a member of the Kentucky Court applying it but making it. Fair or not, of Appeals from the time of its founding in its current jurisdic- appellate judges are themselves judged tion from 1977 to 1982. He was elected to the Kentucky Supreme in the political space when seen as “leg- Court in 1982, and served there for 24 years. Fifteen years after his islating from the bench.” He met this retirement, it is likely that Justice Wintersheimer remains the most dilemma in Giuliani by finding support prolific author of appellate opinions in the history of Kentucky. for the change in the common law the court was making in various legislative An obituary prepared by his family recited that “Throughout his life, enactments in sympathy with the family. Justice Wintersheimer was an extraordinarily hard worker, who was always humble and kind, and committed to securing justice for all.” The loss of consortium is a judge- made common law doctrine which Justice Wintersheimer’s devotion to the ideal of justice for all can be this Court has the power and duty to observed in landmark decisions across his long tenure that expanded modify and conform to the changing access to the justice system for tort victims. He wrote the majority conditions of our society. opinion that dispensed with the predicate of physical contact for claims of intentional infliction of emotional distress, known in Ken- [I]t is only logical to recognize that tucky as the tort of outrage, in Craft v. Rice.1 In his characteristically children have a right to be compensated for their losses when clear, understated prose he gave voice to a class of claimants until such harm has been caused by the wrongdoing of another.3 then denied a legal remedy. To the appellees’ argument that the theory of the plaintiff ’s claims The conduct alleged here is a deviation from all rea- was for the legislature to decide, he answered sonable bounds of decency and is utterly intolerable in a civilized community. It qualifies as harassment It is beyond challenge that public policy is determined intended to cause extreme emotional distress. The Crafts by the constitution and the legislature through the had a right to be left alone. The criminal law prohibits enactment of statutes. However, when these organs of harassment … [A]nd a corresponding tort should also public policy are silent, the decision can be made by be available. the courts.

Justice Wintersheimer also wrote the majority opinion that Justice Wintersheimer wrote the majority opinion that found a extended to minor children the right to recover for loss of parental private right of action for an insurer’s bad faith under the Unfair consortium in Giuliani v. Guiler.2 Claims Settlement Practices Act.4, 5 He wrote for the Supreme

6 | MAY/JUNE 2021 Photo courtesy of the Office of Creative Services

Justice Wintersheimer’s empathy for tort victims was consistent with his affinity for families and individuals navigating modern social change and technological revolution. He dissented from the majority decision to allow Kentucky physicians to assist with suicide in DiGrella v. Elston,10 known as the Right-to-Die case. What he took for moral relativism crowded the Justice’s abiding Catholic faith:

It is troubling to read some of the expert testimony presented at trial. It is disturbing that one physician referred to this patient’s life as “no longer meaningful” and that her continued care would weaken society’s commitment to preserving “meaningful” lives. Other testimony was to the effect that she was “dead” and “no longer a person” because she “no longer reflected a divine image.” These rationales for the so-called “right to die” raise serious concerns that a decision to treat could be based on unconstitutional biases against persons with disabilities.11

Justice Wintersheimer also dissented from the majority decision to allow contract adoption by means of in vitro fertilization.12

In my view, the people of Kentucky have not abdicated their sovereignty to a self-appointed group of scien- tist-kings. The tolerance of the many can easily lead to the tyranny of the few. The attractiveness of assistance to childless couples should not be a cosmetic façade for unnecessary tampering with human procreation.

Animals are reproduced; human beings are procreated.13

Justice Wintersheimer was an unwavering opponent of abortion, believing the procedure an illicit interference in a biological process whose jurisdiction is reserved for the Creator. Court majority holding that claims against medical personnel at state hospitals need not be relegated to the Board of Claims.6 He The expansion of rights accorded the criminally accused since the joined a majority in abolishing contributory fault and the adoption 1960s had little attraction for him. Bearing in mind that Kentucky of the regimen of comparative fault in tort cases, an evolution in Supreme Court jurisprudence in the criminal law almost always the common law that allowed recovery even when claimants are concerns very serious felony cases decided after contentious trials, partially at fault.7 Justice Winteshersheimer’s first dissent was consistent with his opinions on the subject throughout his tenure: He was also the author of what is perhaps the most consequential decisions of its time in Kentucky, which upheld the commitment of After a careful review, I believe the errors complained state resources to the development of Toyota manufacturing plant of are not prejudicial to the degree reversal is required. in Scott County.8 It was argued that the legislation ran counter to Considering the case as a whole, I do not believe the constitutional provisions barring commitment of the state fisc to result would have been any different.14 private gain. The Commonwealth’s stated purpose to reduce unem- ployment was justification enough for the legislation to comply Criminal defendants are entitled to a fair trial, not a perfect trial, with the constitution.9 he wrote more than once.

BENCH & BAR | 7 JUSTICE WINTERSHEIMER

Commissioner, and who survives him. He was the father of Mark ********** Wintersheimer, who at 54 died January 18, 2021. The Justice’s other survivors include Lisa Wintersheimer Michel (Tim), an He was born April 12, 1931, in Covington, and was raised by his attorney; Craig Wintersheimer (Susan); Amy Wintersheimer parents Carl and Marie in Bellevue. He graduated from Sacred Findley (Chris); and Blaise Wintersheimer. He was the grand- Heart School there. About his origins as a legal writer, he wrote, father of Kyndal Michel Marks (Sam), Kirsten, Kassidy, Karley “These courses [in appellate writing] are of value, but the single Michel, Adam, Claire, and Elizabeth Wintersheimer; and Ashley, most important experience for me was my grade-school education Jacob, and Allison Findley; and the great-grandfather of Henry at Sacred Heart School in Bellevue, Kentucky, where I was taught Donald Marks. sound grammar by the Sisters of Notre Dame.”15 Justice Wintersheimer was a devout Roman Catholic and was He graduated from Newport Catholic High School and earned a devoted to his family. Anyone who has been involved in a political A.B. degree in 1953 from Villa Madonna College, which is now campaign would appreciate his account of the defining race in his Thomas More University. He served from 1953 to 1955 in the U.S. electoral history where pays tribute to Mrs. Wintersheimer. While Army and then earned an M.A. degree from Xavier University in he was out in his sprawling district meeting voters, “My wife han- 1957 and his J.D. from the University of Cincinnati College of dled the inside office, which was our dining-room table. She typed Law in 1960. the envelopes and labels, stuffed the mailings, made the necessary telephone calls, and enlisted some volunteer help. Although we were Before he was elected to the Court of Appeals in 1976, Justice indeed total amateurs when it came to political campaigning, my Wintersheimer was in practice, and for 14 of those years served as 16 wife was very organized and disciplined and a very fast worker.” solicitor for the City of Covington. He pioneered in the emerging field of public-interest consumer law. He won a $1.3 million refund In retirement, Justice Wintersheimer lent gravitas and grace to for telephone customers, and challenged bids for rate increases by the swearing in of local public officials. He recited from memory the local power company and by what was then northern Kentucky’s Section 228 of the Kentucky Constitution, with its requirement, privately owned transit service. comical to the contemporary ear, that the oath-taker swear or affirm that he or she has not fought in a duel. Justice Wintersheimer taught business law at Thomas More. He taught Kentucky Constitutional Law at Chase College of Law for Judges necessarily inhabit a zone at a distance from practicing 20 years, where his students were taught the subject by someone attorneys, but Justice Wintersheimer still had a legion of friends who at the same time was deciding it. in the bar. Justice Wintersheimer was a founder of the Chase Inn of Court, Those who knew him will long remember his gentle wit, unfailing served as a board member of the American Judicature Society, the politeness, fine bearing, exemplary judicial mien, and his Homeric Institute of Judicial Administration, and the American Society attention to duty. of Writers on Legal Subjects. He served on the Board of Visitors for Chase, and on the board of the UC College of Law. He was a ENDNOTES member of the board of advisors for WNKU-FM, a now defunct 1 671 S.W.2d 24 (Ky. 1984). community radio station whose signal emanated from Northern 2 951 S.W.2d 318 (Ky. 1997) Kentucky University. He served on the Foster Parenting Review 3 Justice Wintersheimer donated his archive to Chase Law School, including briefs and slip opinions, and it is accessible to all at the school’s website. The Board. appellees brief in Giuliani includes his hand-written notes, a rare point of vantage into the Justice’s intellectual passage to a decision: “This is NOT The list of awards given in recognition of his public service is new legislation.” [Emphasis in the original.] lengthy and includes the Monsignor Murphy Award, the Lincoln 4 K.R.S. § 304.12-230. 5 State Farm v. Reeder (Ky. 1989) 763 S.W.2d 116. Award and an honorary doctorate from Chase; a distinguished 6 Gould v. O’Bannon (Ky. 1989) 770 S.W.2d 220. alumni award from the UC College of Law, an Award of Excellence 7 Hilen v. Hayes (Ky. 1984) 673 S.W.2d 713. from Chase; a distinguished Alumni Award, a community-ser- 8 Hayes v. Public Properties and Buildings Commission (Ky. 1987) 731 S.W.2d vice award and an outstanding teacher award from Thomas More, 299. 9 Justice Wintersheimer understood the momentous nature of this decision, a CLE award from the Kentucky Bar Association, a recognition as reported in his 2010 book “Secrets of the Kentucky Supreme Court: award from the IOLTA Commission, and the Phi Alpha Delta A Memoir.” Adams Avenue Books, Covington. It was written in a 2012 Outstanding Jurist award. review of the book in The Bench & Bar and remains so today: “Kentucky lawyers who practice appeals will ignore his book at their own peril.” B&B, January, 2012, at 20-21, archived at the KBA’s website. He served as president of the Thomas More Alumni Association 10 858 S.W.2d 698 (Ky. 1993) and of the Kentucky Municipal Attorneys Association, and pub- 11 Id. at 712-13. lished frequently in scholarly journals. 12 Surrogate Parenting Associates v. Commonwealth (Ky. 1986) 704 S.W.2d 209. 13 Id at 214. 14 Miracle v. Commonwealth (Ky. 1983) 646 S.W.2d 720, 724. Justice Wintersheimer was married for nearly 60 years to Alice 15 “Secrets” at 64-65. Rabe Wintersheimer, who served for a time as a Covington City 16 Id at 34-35.

8 | MAY/JUNE 2021

THE KENTUCKY BAR ASSOCIATION WOULD LIKE TO THANK OUR MEMBERS FOR PARTICIPATING IN OUR FIRST VIRTUAL ANNUAL CONVENTION

We are excited to announce that we had over 1,800 registered for the event at the time of printing. We could not have done it without the tireless work of our Annual Convention Planning Committee, as well as our CLE Planning Committee and their ! respective chairs, Amelia M. Adams, Matthew P. Cook and Christine L. Stanley. THANKS FOR MAKING Even though we could not be physically together to celebrate many of our time- THE 2021 KBA VIRTUAL honored events, we were able to provide up to 21 hours of CLE for our members ANNUAL CONVENTION and hold several special events. The recipients of our awards will be gathering in late June for a small reception to be presented their awards. The KBA Young A SUCCESS! Lawyers Division will be presented as a later date. Make sure to check out the July 2021 edition of the Bench & Bar to see a complete listing of all the award recipients and to learn a few reasons why they were bestowed these honors. WE LOOK FORWARD

Our 2022 Annual Convention will be held in Owensboro, Ky., next June 15th - 17th. TO SEEING YOU Plans will be soon underway for that event and more information will appear in IN OWENSBORO upcoming editions of the Bench & Bar. NEXT SUMMER! We would be remiss if we did not thank our convention sponsors for their continued support of our event, especially this year, when we had to shift away from our usual format and create a unique experience for our members. Without them our event would not have been possible.

10 | MAY/JUNE 2021 THANK YOU TO OUR SPONSORS. We truly appreciate their support with this year's first virtual annual convention.

GOLD SPONSORS PLATINUM SPONSORS

FEATURE SPEAKER SPONSORS

James Carville and Mary Matalin Jay Bilas SILVER SPONSORS

SPOTLIGHT SPEAKER SPONSORS

Vitale Buford Greg Kirstein David Windecher

BRONZE SPONSORS

MEYER & MEYER, LLP SUSTAINER SPONSORS American College of Trial Lawyers TODD V. MCMURTRY, Department of Public Advocacy HEMMER DEFRANK WESSELS, PLLC KBA Bankruptcy Law Section KBA Civil Litigation Section CORPORATE SPONSORS KBA Health Care Law Section Kentucky Bar Foundation/Kentucky IOLTA Fund Kentucky Department of Agriculture Kentucky Lawyer Assistance Program Office of the Kentucky Secretary of State Supreme Court of Kentucky Vorys, Sater, Seymour and Pease LLP

BENCH & BAR | 11 features: LAWYER WELLNESS

Kentucky Bar comes to grips with Lawyer Suicide BY JAMES P. DADY

This article should be not be used as medical advice or as a substitute from seeking help from a qualified medical professional.

12 | MAY/JUNE 2021 he organized bar has evolved a system to discipline errant The landscape -- or is it the battlefield? -- is, if anything, worse lawyers and judges that has become a model of professional among law students. Forty-three percent of 3,300 surveyed reported T self-policing. First the bar moves to insulate the clientele at least one instance of binge drinking in the two weeks prior to from the potential for harm by the erring lawyer. A body of rules answering the survey. Seventeen percent experienced depression, 14 and precedents support decisions in disciplinary cases, and the percent expressed severe anxiety, 23 percent had mild or moderate accused is accorded abundant due process. anxiety. By now most of those students surveyed have joined the profession and it follows that many brought their problems with The Kentucky bar is a model for continuing legal education. The them, plus in many cases a heap of student-loan debt, younger unified Kentucky bar was the first to stipulate that the price of lawyers in the first 10 years of practice and those working in pri- mandatory annual CLE requirements included annual bar dues. vate firms experience the highest rates of problem drinking and The CLE offerings at the KBA’s annual convention are as good as depression. can be found anywhere. Lawyers are three to six times more likely to suffer from depression The efficiency of the Kentucky bar in disciplining and educating than non-lawyers.2 lawyers is impressive. The death by suicide of five of its members since late December has brought home the necessity for the bar to The hardships created by the hard life led by many lawyers are a take up another major mission: the promotion of lawyer wellness. sad waste of human capital for troubled lawyers, their families, and communities. The life of a maladjusted lawyer includes social To any competent lawyer used to digging into the core of a thing, alienation, work addiction, sleep deprivation, job dissatisfaction, the causes of lawyer suicide are not hard to fathom. Lawyers are unresolved conflict between work life and private life, the narrowing trained to believe that endless work is the path to professional glory of values to where the acquisition of money predominates, and the and riches. Many lawyers are engaged in the psychological warfare spotty reputation the profession has with the public. required by high-stakes litigation. Many lawyers are engaged in practice specialties that make them the one individual who can Lawyers are professional fueders. The nature of law practice itself keep the client out of the penitentiary or who can mitigate family is bound up in conflict. dysfunction. Kentucky lawyers produce miracles, large and small, for their clients, every day. “Being a physician has stress. However, when the surgeon goes into the surgical suite to perform his surgery, they don’t send another Lawyers know other lawyers who work a fearsome schedule, work physician in to try to kill the patient,” said Yvette Hourigan, who weekends, sacrifice irretrievable time with family, ignore the perils leads the Kentucky Lawyer Assistance Program, and who has been of living year after year like General Washington’s recruits at Valley engaged with struggling lawyers for many years.3 Forge, snicker at the benefits of exercise, and often learn that the reward for all their work is the chance to do more work. Lawyers are To which can be added the illness and death of the COVID-19 too well-educated not to know the toll this way of living is taking. pandemic, lost time with family, closed courts, quarantined clients, and lost business. A study conducted for the American Bar Association among nearly 13,000 lawyers and published in 2016 found that between 21 per- Inevitably, given what lawyers are doing to themselves, the specter cent and 36 percent of lawyers qualify as problem drinkers – from of suicide shadows the profession. Five Kentucky lawyers have died more than a fifth to more than a third.1 by suicide beginning with Christmas Day, 2020.4 At least a dozen Kentucky lawyers were apparent suicides between 2010 and 2014. The study found that 28, 19, and 23 percent of lawyers struggle with some level of depression, anxiety, and stress, respectively. The competitiveness and perfectionism that make good lawyers – and the lack of fulfillment many lawyers feel in practicing law – put them at high risk of alcoholism, depression, drug use, and suicide.5

BENCH & BAR | 13 features: LAWYER WELLNESS

Alarmed by the epidemic of suicide among its members, the KBA The suicide prevention presentation of Kentucky Supreme Court has been sounding the alarm for at least a decade, counseling law- Justice Debra Lambert from a Kentucky Law Update in recent yers confidentially, presenting CLE on the subject, and speaking years has been made available again, and there are a number of other through its elected leadership and professional staff, and never more similar programs available from the KBA’s apparatus. so than lately. A program called Lawyers Advocating Wellness (LAW) to encour- “You are a valued and important part of our Kentucky legal com- age lawyers to exercise has been started during the presidency of munity,” said KBA President Thomas N. Kerrick in an email to the Mr. Kerrick. membership in January, 2021. Lawyers, he said, need to take better care of each other. Supreme Court Chief Justice John D. Minton Jr. has posted a video expressing condolences to the friends, families, and clients of the A CLE program, “What Every Attorney Needs to Know about departed lawyers, and encourages members of the Kentucky bar Depression, Anxiety, and Suicide,” sponsored by the KBA, KYLAP, to acquaint themselves with the theory and practice of wellness. and 18 other professional organizations who have joined together as the Lawyers Mental Health Collaboration Group, has been Lawyers Mutual of Kentucky emailed its policyholders to say that approved for one hour of CLE credit, is available for free and on the company’s focus must be on suicide prevention and lawyer demand. wellness, as a good corporate citizen, of course, but also as a way to avoid malpractice claims against distressed lawyers.

Mental Health First Aid is being offered to Kentucky Bar Association members for a discounted rate for sessions to be held in May and June. The program is geared towards training lay people to recognize mental health issues and provide them ways to offer help.

For more information on the program and how to register visit www.kybar.org/page/lawyersadvocatingwellness then select the Mental Health First Aid button.

14 | MAY/JUNE 2021 What each constituent part of the bar, broadly defined, should be This method of intervention has been developed into a training doing is captured in an authoritative, comprehensive study under- module called QPR – Question, Persuade, Refer. The Lawyers taken for the American Bar Association by the National Task Force Mental Health Collaborative Group has been offering QPR of Lawyer Well-Being and published in 2017. The mission of each training for Kentucky lawyers for free. Training sessions will be of the bar’s components to address lawyer wellness -- the bar available in June and July. The training itself qualifies for an hour associations, the courts, the law firms, the law schools – is set out of free CLE credit. in the study with great clarity and detail. The only rational position by all stakeholders is that the life of Addressing the two concepts – lawyer wellness and lawyer sui- every lawyer is valuable if not divine, that every lawyer deserves to cide -- is well within the capability of the Kentucky bar. Kentucky be saved from the ultimate act of self-destruction – not one more lawyers have a record as good as any in using the instrumentalities suicide is acceptable. Not one more. of the law to obtain justice for clients in ways unimaginable to a great novelist. Kentucky lawyers have prevailed for their clients The third stage of the intervention is to refer the troubled lawyer to against astronomical odds. Every day, Kentucky lawyers put right a professional. Two places for the troubled lawyer to obtain help are: what has been unjust, help clients live down terrible moments in what can seem like an unforgiving world, brought the mighty and The National Suicide Prevention Hotline arrogant to heel. In every realm of philanthropic service – pro- 800-273-8255 fessional, civic, public, charitable – the contributions of Kentucky lawyers are indispensable. Kentucky Lawyers Assistance Program The disturbing profusion of suicide by lawyers requires attention Available 24 hours a day, seven days per week. to be directed not at cases and causes but at the individual lawyer Any contact with KYLAP is confidential her- or himself, and to the lawyers around the distressed lawyer. It 502-226-9373. is not often difficult for professionals with the investigatory and analytical skills of a decent lawyer to detect when others among ABOUT THE AUTHOR us are in trouble – the work-life balance is absent, the drinking or JAMES P. drugging is much in evidence, the income is not what was hoped A regular contributor, DADY for, etc., etc. is editor of the Bench & Bar and chairman of the Com- The default response to the troubles of a law-firm colleague or the munications and Publications fellow solo practitioner down the hall of “Let the problem work Committee. He lives in Bellevue, itself out” is very much mistaken and possibly deadly. where he is chairman of its Plan- ning and Zoning Commission.

The Mayo Clinic has provided advice on how to stage an intervention: start by asking questions of the distressed lawyer:

How are you coping with what’s happening in your life? ENDNOTES 1 “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change,” the product of the National Task Force on Lawyer Well-Being,” Do you feel like just giving up? 2017. The study is readily available via Google. 2 CNN web posting, 1.20.14 Are you thinking about dying? 3 Ibid. 4 The Courier-Journal, “Spate of Lawyer Suicides Prompts Kentucky State Bar to Tell Attorneys ‘You Are Not Alone.’” Article by Andrew Wolfson, Are you thinking about suicide? 1.15.21. A fifth Kentucky lawyer was an apparent suicide in early March, 2021. Have you thought about how you 5 Lanny Berman, director of the Washington-based American Association of Suicidology. would do it?

Do you know when you would do it?

Do you have the means to do it?

BENCH & BAR | 15 features: LAWYER WELLNESS

THE IMPACT OF THE COVID-19 PANDEMIC ON LAWYER MENTAL HEALTH:

ne year ago, I sat at my laptop writ- ing the article for the May/June O2020 Bench & Bar entitled “Lawyer ONE YEAR Well-Being: COVID-19 Pandemic Edi- tion.” A worldwide lockdown had begun 1 a month before and phrases like “social distancing” and “sheltering-in-place” were new. Nobody anticipated we would work LATER almost exclusively from home all day every BY YVETTE HOURIGAN day; wouldn’t be able to safely gather with our families during any holidays in 2020; and wouldn’t attend anything profession- ally in person including meetings, court,

16 | MAY/JUNE 2021 MENTAL HEALTH COLLABORATION GROUP MEMBERS Administrative Office of the Courts Kentucky District Judges Association Association of Corporate Counsel Kentucky Justice Association Bowling Green/Warren County Bar Association Kentucky Lawyer Assistance Program Circuit Judges Education Committee Lawyers Mutual of Kentucky Fayette County Bar Association Louisville Bar Association Judicial Conduct Commission Northern Kentucky Bar Association Kentucky Bar Association Office of Bar Admissions Kentucky Bar Association Board of Governors Office of Bar Counsel Kentucky Bar Foundation Supreme Court of Kentucky Kentucky Circuit Judges Association Young Lawyers Division of Kentucky Defense Counsel Kentucky Bar Association

add the Korean War numbers to the list. includes KYLAP and about 20 other lawyer This includes more than 6,400 Kentuck- and Court organizations around the Com- ians. We’re still masked, social distancing, monwealth (see box above). It includes working remotely, and emotionally isolated. practitioner groups as well as all Ken- Many of our friends, families, and clients tucky Courts and Administrative offices. have been very sick or died from COVID- Together we’ve presented dozens of CLE 19, and everyone has had some level of fear courses to thousands of Kentucky lawyers. of becoming infected every single day for We’ve covered topics aimed at preventing over a year. The suggestions in that article tragedies like suicide, and recognizing the last May were relevant and practical, but signs of depression and substance use dis- they underestimated the devastating impact order in our fellow lawyers (which can be this health crisis would have on this nation difficult to do when there’s very little live and everyone in it - not just lawyers. One interaction with people we don’t work or author calls it the “societal convulsions live with). We’ve also addressed everyday caused by the coronavirus pandemic.”2 The topics of improving mental and physical recommendations were just the tip of the health through better sleep, nutrition, med- iceberg of what we need to be doing for itation, and exercise. our well-being. This comprehensive response to both Over the past year, to meet the ever-chang- increasing mental health problems and This article should be not be used as medical ing and ever-expanding needs of Kentucky the pain the pandemic has caused our advice or as a substitute from seeking help lawyers, by the end of June KYLAP will profession in Kentucky evidences the from a qualified medical professional. have offered nearly 50 lawyer well-being overwhelming compassion of our lawyers and mental health CLE courses. All are and underscores the support we’re provided free of charge and via Zoom. Many were from our Courts (see Chief Justice John in conjunction with the Kentucky Bar Minton’s message encouraging Kentucky depositions, or CLEs for over a year. In Association (KBA) and KBA President lawyers to get help for mental health prob- the beginning, it seemed logical to provide Tom Kerrick’s Lawyers Advocating Well- lems visit www.kybar.org.). These member practical advice on how to take care of your ness (LAW) Initiative. President Kerrick’s groups, the KBA leadership and staff, the physical and mental health during the pan- initiative began as an effort to boost our Court, and President Kerrick are to be demic until we were back to normal, which overall health through better daily choices commended for their efforts to improve most anticipated would happen by the end like more physical activity, better sleep, and awareness and de-stigmatize mental health of Summer 2020. The tone was light. more nutritious foods. This goal shifted issues and treatment for lawyers. The KBA’s dramatically when we lost several lawyers CLE and Communications departments Flash forward 13 months and 600,000 to death by suicide over a very short period are working tirelessly to hasten approval Americans have died of COVID-19. of time during the past winter months. and promote CLE events and we’re all That’s more deaths than all Americans who Many of the CLEs have been and will be grateful. Anyone who says the KBA isn’t died in WWI, WWII, and Vietnam com- presented jointly by the Kentucky Lawyer interested in lawyer well-being, or that bined. If we reach 611,000 deaths, we can Mental Health Collaboration Group which Kentucky lawyers don’t care about the good

BENCH & BAR | 17 features: LAWYER WELLNESS

mental health of their fellow-lawyers isn’t reported in 2019 (25.5% versus 8.1%), and consistently have “short sleep”6 -- are suf- paying attention. Lives are saved through prevalence of depressive disorder was four fering extraordinarily with this added stress these efforts. John F. Kennedy said “[W]e times higher than reported a year previously and anxiety. must find the time to stop and thank the (24.3% versus 6.5%). Between August 19, people who make a difference in our lives” 2020 to February 1, 2021, the percentage One simple way we help our colleagues and so I thank all of the individuals who of adults with symptoms of an anxiety or is to speak bluntly and unapologetically have worked on these projects. depressive disorder increased significantly about our own mental health issues like from 36.4% to 41.5%.3 (so pre-pandemic anxiety, addiction, and suicidal thoughts. And yet, in spite of these and other efforts, the general population went from 6.5% Normalizing depression through frank we’ve lost some of our brother and sister to 41.5% in March 2021). In about the discussions reduces the stigma and elimi- lawyers to suicide, overdose, or other same time frame, significant increases nates the shame of seeking medical care. It health issues associated with the pandemic, were observed in the percentages of adults encourages others to seek help. Conversely, including the disease itself. We’re devas- who reported experiencing symptoms of an unwillingness or inability to candidly tated as a legal community. Overwhelmed, an anxiety disorder (from 31.4% to 36.9%) discuss mental health issues and treatment in fact. And all predictions are that these which means since before the pandemic, exacerbates the problem. mental health issues will continue and may the anxiety rates rose from 8.1% to 36.9% worsen, long after we are un-masked and in the general population.4 For over 50 years the mental health profes- fully vaccinated. sion has known that suicides increase in the A majority of adults (61%) reported experi- spring. There are many theories why. For The COVID-19 pandemic has nega- encing undesired weight changes since the example, you kept telling yourself that your tively impacted mental health worldwide. start of the pandemic with more than 42% low mood in January and February was due Elevated levels of adverse mental health reporting gaining more weight than they to short days and bad weather and when conditions, substance use, and suicidal intended. The average weight gain was 29 spring came, things would get better. But ideation have been reported by U.S. adults pounds. Two in three (67%) of Americans they didn’t. It’s also well-documented that throughout the pandemic. are sleeping more or less than they wanted.5 bi-polar disorder worsens in the spring as does other manic behavior. Clinicians think From March 2020 through June of 2020, Lawyers -- who already have anxiety the mood activation triggered by warmer the prevalence of symptoms of anxiety and depression levels three to four times weather brings about the development of disorder was three times higher than those greater than the general population and more self-destructive behavior.

Join expert Beck Whipple, Suicide Prevention Coordinator within the Kentucky Department for QPR Suicide Behavioral Health, Developmental and Intellectual Disabilities, as he explains the QPR method. Prevention As someone who may be in the best possible position to prevent a suicide, you will find that QPR is designed to help you save a life.

Gatekeeper QPR consists of these three skills: QUESTION a person about suicide, PERSUADE someone to get help and Training REFER someone to the appropriate resource. Several sessions will be available in June and July 2021. For more information and how to register, Webinar visit: www.kybar.org/page/qprwebinar2021

18 | MAY/JUNE 2021 This ad was pulled from the National Suicide Prevention Lifeline website, https://suicidepreventionlifeline.org/ and the original file can be found at https://suicidepreventionlifeline.org/media-resources/

BENCH & BAR | 19 features: LAWYER WELLNESS

Whatever the cause, be hyper-vigilant in involved in the disciplinary process or have KYLAP FOUNDATION the coming months. If you don’t know licensure issues. In fact, over 90% of our The KYLAP Foundation was created in what steps to take to help someone else, contacts just want a referral, a resource, 2014 to confidentially support the finan- sign up for one of the mental health CLE accountability, or to hear a colleague and cial needs of Kentucky lawyers who may offerings KYLAP and the Mental Health peer say they’ve “been there and done that” have impairment issues and need medical Collaboration Group are offering. Sign up and that there is a light at the end of the treatment but may not have the funds to to for Mental Health First Aid, which will be tunnel. Our 120+ lawyer volunteers across get it. The loans are forgivable by the Foun- offered six separate times in May, June, and the state will always answer the bell and dation, and providers are paid confidentially July and is a (non-CLE) six-hour course support other lawyers who need help and directly. The Foundation’s sole mission is that gives you the skills to help someone they do so confidentially under Supreme to support lawyers with potential impair- who is developing a mental health prob- Court Rules (3.900, et seq.). It’s humbling ment issues. For more information on how lem or experiencing a mental health crisis, to work alongside these extraordinary to apply for funds or how to donate, visit including substance use disorder and sui- lawyer volunteers. www.kylap.org/foundation. cidal thoughts. Take one of the upcoming QPR: Suicide Prevention Trainings that KYLAP, it’s staff and it’s lawyer volun- CONCLUSION will be offered seven more times in June teers are prohibited from reporting lawyer We’re in a very different spot than we were and July free of charge to Kentucky lawyers, misconduct or lawyer mental health and a year ago. We’ve lost a lot. There’s hope on and provides one-hour CLE credit. This wellbeing information to any agency of the horizon that things will normalize soon program is also presented by the Mental the Bar, any Court, your boss, or your col- (whatever that means), but we’re changed Health Collaboration Group with the sup- leagues. The rules cited in the chart are by this pandemic. We’re a different popula- port of Justice Debra Lambert, who has clear. We’re excluded from the reporting tion and our mental health needs may not moderated all of the sessions this spring. requirement of lawyer misconduct found in be drastically different, but they are dras- Take one of the free CLE “on demand” SCR 3.130 (8.3 (c)) and we do not make tically more acute. All statistics indicate offerings on the KBA website (www.kybar. direct decisions about either Bar admission that if we don’t tend to them, things will org). Learn how to ask friends you’re con- or lawyer discipline. Please don’t be afraid get worse for us. Over the next 60-90 days, cerned about the hard questions about their to ask for help for fear your information be pro-active. Attend some free mental mental health. Get your own help through will be revealed. It won’t be and it can’t be health CLEs or Mental Health First Aid telehealth, which is maybe the greatest under the Rules. thing to ever happen to professionals who are concerned about their privacy. Be will- ing to try something different before you give up. KYLAP can provide resources for most issues you may need assistance for. WHAT KYLAP DOES The Foundation can help financially. AND DOESN’T DO For more guidance on how to address a sui- cide crisis, review the information in the DOES: DOES NOT graphic (on page 19) “What to Do if you (IS PROHIBITED FROM) Think a Person is Having Suicidal Thoughts.” • Offer Confidential Assistance To : You can also explore other resources on the Law Students, Lawyers, & Judges. • EVER Make Referrals To Office Of Bar Suicide Prevention Lifeline website by vis- SCR 3.990. Counsel Or Bar Admissions Or Court. iting suicidepreventionlifeline.org. Prohibited By SCR 3.960(2). • Provide Formal Monitoring and KYLAP’S ROLE IN Reporting to OBA, OBC, or Supreme • EVER Identify Who Made A Third-party SUPPORTING KENTUCKY Court For Approximately 5% Of The Referral. Prohibited By SCR 3.960(2). Lawyers We Assist When Disciplinary LAWYERS CONFIDENTIALITY EVER Speak To Office Of Bar Counsel Complaints Have Already Been Made • Let’s use some space to hopefully de-bunk or Admissions Without An Authoriza- or Character & Fitness Issues have the myths and rumors about the confiden- tion Signed By You. SCR 3.970(2). been raised and with an Authorization. tiality of your Lawyer Assistance Program. SCR 3.970 & SCR 3.980. • IS SPECIFICALLY EXCLUDED from Much has been circulated about what reporting requirement of SCR 8.3 KYLAP does and does not do. Much of • Work Confidentially With Hundreds Reporting Professional Misconduct it is wrong. KYLAP works directly and Of Lawyers Each Year. under 8.3(c). confidentially (see chart on right) through its staff and volunteers with hundreds of • DOES NOT participate directly in any Kentucky lawyers each year. Most of these Licensure Decisions. lawyers have never been and never will be

20 | MAY/JUNE 2021 training. Honestly assess your own mental health and well-being. To get started you can take the Patient Health Questionnaire online confidentially at https://screening. ABOUT THE AUTHOR mhanational.org/screening-tools/depre YVETTE HOURIGAN is the director of the Kentucky Lawyer ssion/?ref. Use this tool as a guide only and Assistance Program (KYLAP). KYLAP provides assistance remember that this is not a diagnosis. Your to all Kentucky law students, lawyers and judges with mental results from these tools should not be used health issues and impairments including depression, sub- in place of a doctor’s evaluation. On the stance or alcohol addictions, process addictions and chronic physical health side, commit to walking anxiety disorders. Hourigan graduated from Murray State more as the weather is warmer, or losing University and the University of Kentucky College of Law. your “Quarantine Nineteen” this summer She is a Certified Employee Assistance Professional and an through better nutrition and exercise. And Adult Peer Support Specialist. She is a member of the ABA continue reaching out to friends who cross Commission on Lawyer Assistance Programs, chair of the your mind each day or at least each week ABA/COLAP Diversity, Equity & Inclusion Committee, -- especially those who live alone. As law- and a member of the National Task Force on Lawyer Well-Being. In 2019, Hou- yers you have sharpened your instincts and rigan was awarded Kentucky Justice Association and Family Safety Foundation’s your “Spidey-sense.” If you feel something’s Consumer Safety Award. This honor goes to an individual who is an outspoken wrong, trust that instinct. Pursue that. The advocate for consumer rights or who has risked her own well-being for the future worst thing that can happen is that you’re health or safety of others. She speaks locally and nationally on topics impacting wrong. Better to be wrong than not to have lawyer well-being, addiction and suicide prevention. KYLAP’s work in lawyer acted at all. Just take care of yourself and mental health, well-being and suicide prevention has been featured nationally on one another. We need each other now more Legal View with Ashleigh Banfield, CNN, and in The Huffington Post. than ever. If you need KYLAP’s help, our phone is answered 24 hours a day, 7 days a week. 502-226-9373.

ENDNOTES 1 Portions of this article were previously published in the KJA Advocate, March/April 2021, as “Pandemic Fatigue, Despair, and How to Offer Help.” 2 Keeter, Scott, “Many Americans continue to experience mental health difficulties as pandemic enters second year.” Pew Research Center, https://www.pewresearch.org/fact- Litigation Support, tank/2021/03/16/many-americans-contin- ue-to-experience-mental-health-difficul- Valuation, and ties-as-pandemic-enters-second-year/ March 16, 2021. Last accessed April 11, 2021. 3 Vahratian, Angel, PhD, Blumberg, Stephen Financial Forensics J., PhD, Terlizzi, Emily P., MPH, Schiller, Billy Upchurch Jeannine S, MPH, Symptoms of Anxiety or Depressive Disorder and Use of Mental CPA/ABV/CFF, CFE, CVA Health Care Among Adults During the Covid-19 Pandemic – United States, August 2020-February 2021, CDC Morbidity and Mortality Weekly Report, Early Release / Vol. 70, March 26, 2021. 4 Keeter, Scott, Supra. 5 American Psychological Association, Stress in America 2021, March11, 2021, https://www. Credentialed apa.org/news/press/releases/stress/2021/one- year-pandemic-stress, last accessed April 11, Flemingsburg Louisville Richmond 2021. 6 Walker, Matthew, Why We Sleep: The New Lexington Maysville Science of Sleep and Dreams,” Penguin Books, 2017, passim. Chris Hatcher CPA/CFF, CFE, CVA, CGMA 866.287.9604 www.baldwincpas.com

BENCH & BAR | 21 features: LAWYER WELLNESS

BY VITALE BUFORD MythPerfectionism: vs Reality EXECUTIVE COACH, SPEAKER, AND AUTHOR MYTH #1: erfectionism is misunderstood. Ninety-seven percent Perfectionists get things done and they do things right. of people struggle with some form of perfectionism; Pyet most people don’t understand the risks and harm REALITY: associated with it. Society tells us we need to be perfect to Perfectionists often have problems with procrastination, achieve success, happiness, and to feel worthy. However, that missed deadlines, and low productivity. couldn’t be further from the truth. Perfectionism is not the pathway to success; it is the roadblock. Perfectionists struggle with procrastination – either they wait to make a decision because they need all the perfect information, or Here are some myths and realities about perfectionism and they put off starting a project because they are afraid it won’t end what to do about it. up perfect. This leads to stress and anxiety and working last-min- ute to meet deadlines or missing deadlines. Fear of failure also plays a role in procrastination – and perfectionists want to avoid failure at all cost because that would mean they are imperfect. It is also a major time-suck because the time spent worrying about and This article should be not be used as medical advice or as a substitute avoiding a project always trumps the time is takes to complete the from seeking help from a qualified medical professional. project. Perfection does not lead to getting things done – it leads to indecision, analysis paralysis, fear, and feeling stuck.

22 | MAY/JUNE 2021 One of the ways to avoid procrastination is to live by the mantra: down 10 things you are grateful for. It’s important to write it down “done is better than perfect.” This encourages you to get started – because it rewires your brain when you put pen to paper. What you write the first paragraph of your brief, draft the email, or have the appreciate appreciates, and when you practice daily gratitude you difficult conversation with your client. Instead of procrastinating, will experience a major shift in your perspective, your career, and get started – you will save time, avoid stress and anxiety, and build your relationships. This will help you enjoy your success because your self-confidence. you will be coming from a place of gratitude. MYTH #2: MYTH #4: Perfectionists have it all together. Perfectionists are confident and secure. REALITY: REALITY: Perfectionists are often paralyzed with self-doubt, Perfectionism is all about insecurity. self-criticism, and a need for control, which impacts their ability to stay focused and get things done. Confidence is not built through thinking; it is built through doing. Confidence is built by taking action and being kind to yourself. Perfectionists do not have it all together. We think they do because Perfectionism kills confidence because it kills action through pro- they never ask for help and do a great job of appearing as though crastination, self-doubt, and feeling stuck. And when you are in this they have it all together. In fact, let’s go ahead and agree that no one headspace, you don’t feel good about yourself. Plus, perfectionists are has it all together. We are all human. However, perfectionism leaves highly self-critical, and when you are constantly criticizing yourself no room to be human. Instead, it leads to procrastination, control, there is no self-confidence. people-pleasing, unrealistic expectations, indecision, self-doubt, feeling stuck, imposter syndrome, all-or-nothing thinking, anxi- One of the ways to build your self-confidence is to get into action ety, comparison, and stress. Perfectionism keeps you in a constant because action leads to confidence which leads to more action. loop of self-criticism, and this loop keeps you from being present, When we start a project instead of procrastinating, we feel better productive, and fulfilled. about ourselves. When have that difficult conversation instead of avoiding it, we feel better about ourselves. When we are consistent The first place to start to healing your self-criticism is to become with our daily gratitude practice, we feel better about ourselves. aware of your self-criticisms. We cannot change something if we Tiny actions lead to major confidence. are not aware of it, so it’s important to be very mindful of the limiting beliefs and thoughts that are running through your head. Spend one week taking an inventory of your limiting thoughts and self-talk and write it all down. This exercise will make you aware ABOUT THE AUTHOR of how your thoughts are holding you back. And with awareness VITALE BUFORD brings her per- comes choice. You can choose better thoughts, words, and actions. fectionism training and concepts MYTH #3: to life in a fun and relatable way, empowering teams and companies Perfectionism is a strength. to transform the way they work, REALITY: produce, and relate. A change agent transforming organizations, Perfectionism hinders your success more than it helps. groups, and individuals, she is an iPEC-certified executive coach, Who remembers getting asked this question in an interview? trainer, international speaker, and “What is your biggest strength and weakness?” I bet 85 percent author. Featured in The New York Times, she is the author of of people answer with “perfectionism.” We have been trained to the book, Addicted to Perfect, detailing her 10-year struggle think perfectionism is a strength but it’s not. You might achieve a with Adderall and perfectionism. Her experience includes certain level of success under the guise of perfectionism; however, more than a decade working in marketing and business devel- perfectionists never enjoy their success. And what is success without opment for a variety of industries and professional service enjoyment? Perfectionism leads to burnout, chronic stress, procras- organizations. She combines her personal experience, pro- tination, obsessive thinking, indecision, unrealistic expectations, and fessional education and training, and her specialized healing the pressure to always perform. This is not a life well-lived – and techniques together to create a unique coaching system – one the good news is you don’t have to live this way. You can achieve that gets to the root of the issue to bring about lasting and real success (and enjoy it) without all the stress and anxiety. change. She loves traveling, Fleetwood Mac, HIIT workouts, and lives in Central Kentucky with her son and dog. You can One of the ways to combat this way of thinking is to start a daily learn more about her at https://vitalebuford.com/corporate/ gratitude practice. Take 5-10 minutes each morning and write

BENCH & BAR | 23 COLUMNS

Pandemic-Bred Challenges for Contract Law and ADR BY DEAN COLIN CRAWFORD

feature of contract law that appears poised to be altered by the A COVID-19 pandemic is the interpretation of force majeure has been true with the Suez Canal unrest long ago and the terrorist clauses. The issue that contracting parties will be forced to confront acts of 9/11, we record history in our force majeure clauses.” is simple: is a global health pandemic an “act of God” or “natural disaster” comparable to a hurricane or flood? Going ahead, Professor Giesel anticipates that we will see other GRACE GIESEL such cases, demanding that we rethink at least this aspect of con- As my colleague tract law. explained to me recently, expansion of the coverage of force majeure clauses The pandemic will surely heighten the has a long history. In 1967, for example, scrutiny given to emerging issues in a Egyptian President Nasser’s seizure of range of other legal areas as well. One the Suez Canal and its ripple effects for set of decisions my colleague ARIANA global trade pushed many sophisticated LEVINSON is watching closely are those contracting parties to expand what they involving workers in the “platform listed as within the force majeure clause, economy” who have signed contracts as did the terrorist attacks of 9/11 more agreeing to mandatory arbitration in the than three decades later. Before the case of disputes. Many of these workers, COVID-19 pandemic, however, few at companies like Amazon, for exam- contracting parties listed “pandemic” ple, have now come to be thought of as or “virus” as within the coverage of the force majeure clause. As “front line workers.” Across the country, COVID-19 and its effects on trade and governmental restric- lawsuits are percolating by these work- tions on movement unfolded, parties speculated whether the force ers, advancing claims for a range of employment protections. It majeure clauses in their contracts would cover the unprecedented seems likely that the increased attention given to these workers situation. during the pandemic will result in heightened interest in the cases.

A December 2020 ruling from the Southern District of New York In cases across the country, employers like Amazon are seeking to has taken the position that the COVID-19 pandemic is within the dismiss these class actions on the grounds that the workers signed coverage of a force majeure clause if that clause, as many do, covers contracts agreeing to arbitration. However, as Professor Levinson “natural disaster.” The court stated that the global pandemic entitled told me, the Federal Arbitration Act, a 1920s law that predates a contracting party to terminate its agreement inasmuch as “not passage of the National Labor Relations Act, was written to cover only environmental calamities[,] events such as floods or fires, but business-to-business contracts and not employment contracts like also widespread social and economic disruptions such as ‘general those of the transportation industry. For the moment at least, an strike[s],’ ‘war,’ ‘chemical contamination,’ and ‘terrorist attack’” are exemption for transportation workers is providing a means for some protected under a force majeure clause (JN Contemporary Art LLC of these workers to proceed with their lawsuits. The U.S. Supreme v. Phillips Auctioneers LLC, 2020 WL 7405262 (S.D.N.Y, December Court recently declined to hear a case in which the 9th Circuit Court 16, 2020)). This case should be precedent for other courts to inter- of Appeals allowed the workers’ class action to advance. Amazon. pret force majeure clauses so as to cover the disruption in contract com v. Rittmann (cert. denied Feb. 22, 2021.) performance caused by the pandemic and related governmental restrictions. Professor Giesel is certain that there will be many such Whatever happens in the digital economy worker cases, my guess cases. Going ahead, Professor Giesel anticipates that we will see is that COVID-19’s ripple effects will similarly present new chal- contracting parties adding “pandemic” to the laundry list of events lenges for ADR practitioners, who will be tasked to explore the covered by the force majeure clause. As Professor Giesel states, “As pandemic’s consequences in a wide range of legal areas. This is likely

24 | MAY/JUNE 2021 to be true not only in matters those involving contracts between afford a mediation.” She then resolved sophisticated commercial actors like those in the JN Contemporary to start a Mediation Clinic, which until Art, but also, for instance, in everything from disputes between her appointment to the bench, she co-di- workers and employers in labor and employment law cases to con- rected with COREY SCHIFFMAN. Today, flicts between family members. the Mediation Clinic averages 25-30 domestic law mediations a semester. Fortunately, at the Brandeis School of Law we are providing ever- more opportunities for students to gain hands-on experience in Students rave about the experience. different ADR areas. Professor Levinson, for example, teaches a Jamie Scowcroft, who graduated in May class in arbitration, in which she seeks to provide students with “the 2021, reports that “it’s a unique oppor- skills to represent a client, which includes how one selects arbitra- tunity since we are the only free mediation clinic in Kentucky,” tors.” In Professor Levinson’s class, students start with a research adding that “it is a great opportunity to give back to the community project “indicating their interest in an area of arbitration,” Professor in such an impactful way.” Sydney Brookshire, who finished her Levinson told me, “whether it be construction law or labor law – second year in May 2021, said that she had worked in a homeless whatever.” The course ends with students arbitrating a dispute, with shelter. However, for her, “working in the mediation clinic offers live witnesses, so that they come as close as possible to working a broader solution to the problems faced by indigent clients. In a through a case as it would be arbitrated homeless shelter, you see individuals at one time, and deal with one with real clients. circumstance only. In the clinic, we are providing access to justice that can be transformative for many aspects of their lives.” Juanita The Brandeis School of Law offers ADR Leksrisawat, who also just concluded her second year, echoed those experiences beyond arbitration. In 2017, sentiments. Ms. Leksrisawat, a former high school math teacher, Professor – and now Family Court Judge “has reflected on how much I learned in the clinic – things I never – SHELLEY SANTRY sat in a courtroom would have learned in the classroom: how people are, and how in her role as Director of our Robert to deal with them. I am very aware of what an amazing learning and Sue Ellen Ackerson Law Clinic, opportunity it is.” which focuses on family law disputes. Judge Santry saw indigent parties being Perhaps to no-one’s surprise, COVID-19 has presented special ordered to mediation, only to say “I can’t obstacles for successful mediation. Co-Director Shiffman noted that they quickly had to adapt to offer free mediation through Zoom. But the almost universal access to cell phones has meant that he and his students rather than mediating around board room tables litigants “are now able to mediate everywhere from Wild Eggs restaurant to their cars. It was bumpy at first,” Professor Shiffman reports, “but we were able to tran- sition smoothly and quickly into the more normal flow of things.”

Going ahead, just as we have all adapted in so many ways to the effects of COVID-19, I am sure that our ADR opportunities will incorporate some of the lessons they have learned in this difficult time to provide stu- dents evermore rich and useful practical training for their professional lives.

BENCH & BAR | 25 COLUMNS

Chase College of Law Professor Anthony Chavez

lon Musk, the visionary behind Tesla Both Professor Chavez and Mr. Musk – sunlight. For him, the argument for carbon and SpaceX, thinks Chase College and the American Petroleum Institute, dioxide removal is in the math. Eof Law Professor Anthony Chavez which backs the removal-and-storage is onto something. concept – recognize the same obstacle: “Current projections indicate that the The technology for it is not yet here on an global mean temperature will likely rise at Professor Chavez has been advocating economically viable scale. Enter Mr. Musk least 3 degrees Celsius (5.4 degrees Fahr- for several years, through law review arti- and the offer of a $100 million prize to an enheit) above pre-industrial levels,” he says. cles and seminars, for adoption of public individual or institution that comes up with “Scientists have warned that a number of policies to spur development of emerging an effective and economical way to remove harmful and irreversible consequences will technologies to help fight climate change at least one ton of CO2 a day and to store occur if the temperature rises at least this by removing the greenhouse gas carbon it for at least 100 years. much (currently, it is 1.1 degrees Celsius dioxide from the atmosphere. Mr. Musk above earlier levels). thinks the idea of pulling excess CO2 Even as the technology has been devel- from the air and storing it underground oping, Professor Chavez has been urging “Carbon dioxide removal is the only prac- has enough going for it that he is offering governments to help push it along by tical means to return the climate to a a $100 million prize to jumpstart the tech- adopting public policies similar to those temperature rise of 2 degrees Celsius if we nology needed to do it. that helped jumpstart once seemingly overshoot that [projected 3-degrees] level. beyond-the-horizon dreams of generat- This is because carbon dioxide remains in ing energy on a mass scale from wind and the atmosphere for centuries, and scientists

26 | MAY/JUNE 2021 project that, once emissions effectively stop, “The guaranteed profit of feed-in tariffs Full decarbonization will be very expen- the climate will not return to prior levels for helps investors overcome their natural sive since several sectors will be difficult, if up to a millennium,” Professor Chavez says. reluctance regarding untried technolo- not impossible, to decarbonize fully. These gies. However, over time they can become include aviation and marine transportation; While the concept has scientific support, crushingly expensive. Thus, after they have agriculture, especially livestock; cement the economic return on it is still a dream. helped to stimulate carbon dioxide removal production; and building structure heating deployment, feed-in tariffs need to be and cooling.” “Although scientists have identified several phased out before their costs become too technologies, many of them still remain burdensome. A renewable portfolio stan- undeveloped, and none of them are ready dards structure, however, can assure that For now, though, the to be deployed at scale (which climate installations continue,” Professor Chavez future is beginning assessment models indicate needs to com- says. mence before the end of the decade). Thus, with the vision of policies need to be enacted to facilitate the “Carbon dioxide removal technologies a Chase College of research, development and deployment of alone will not suffice to avoid dangerous carbon dioxide removal technologies. climate change. Mitigation is the best and Law professor … and least expensive means to prevent climate “A similar problem arose decades ago change. However, we are on track to exceed a $100 million bonus regarding renewable energy. Wind and tolerable levels of warming. for reaching it. solar technologies were well-known, but solar was still in its developmental stage, “Addressing climate change will be much and both technologies were not yet being less expensive if we are able to remove deployed at scale. Thus, neither yet had some of the carbon dioxide from the atmo- received the benefit of economies of scale, sphere. Otherwise, we will need to fully which reduce costs and facilitate large-scale decarbonize every sector of our economy. installations,” Professor Chavez says.

His strategy for promoting development of removal technologies – writing about it in publications such as Fordham Environ- mental Law Review, the William & Mary Environmental Law & Policy Review and the New York University Environmental Law Journal and speaking at conferences in the United Kingdom and the United States – has been to look to what worked for wind and solar.

“Two approaches arose to stimulate renew- able energy development and deployment. Many states used renewable portfolio stan- dards. These standards require electricity suppliers to source predetermined amounts of their electricity from renewable sources. Alternatively, many European nations enacted feed-in tariffs. These require util- ities to accept electricity from designated sources at a predetermined rate, which exceeds the cost of generation, thereby assuring a profit. Each of these policies triggered sharp and lasting increases in renewable energy installations.”

Looking ahead, he sees the policies as short-term incentives for technology that can be part of a long-term solution.

BENCH & BAR | 27 COLUMNS

UK Rosenberg Law Names 1st Black Editor of Kentucky Law Journal

niversity of Kentucky J. David Rosenberg College of Law sec- going to jail or prison, and she felt that adequate services were Uond-year law student Kelly Daniel will serve as the first Black needed in her community to prevent that outcome. In addition, editor-in-chief of the college’s Kentucky Law Journal (KLJ) for the “there were few attorneys who looked like me,” Daniel said. 2021-2022 academic year. Daniel, a native of Boston, recalls one of her most memorable experiences in law school when, during her Daniel is a first-generation college graduate whose parents immi- first year, she and other members of the Black Law Students Asso- grated to the United States from Haiti. She worked at a criminal ciation (BLSA) traveled to Louisville to attend a small gathering defense firm and then worked in the intellectual property depart- hosted by alumnus Steven Reed (’86). ment at a corporate law firm before enrolling in law school at UK in 2019. Daniel applied to law schools across the country because she According to Daniel, Reed told the students that leaders were wanted to experience being away from home. She studied abroad needed across student organizations, and they shouldn’t limit them- in the Czech Republic as part of an honors program during her selves to one group. “And I took that with me throughout my time second year of college, and Daniel felt that she focused best when at UK, and I think that … really gave me the motivation to decide among strangers. Daniel applied to law school at UK because of an to run for editor-in-chief,” Daniel said. application fee waiver, but a personalized note on Daniel’s accep- tance letter from the admissions director won her over. “KLJ has been intentional this past year in its efforts to increase interest among diverse students to participate in the process for “It was clear that they looked at my entire application from top to being selected to law journal,” said Danny Murphy, senior assistant bottom. They knew who I was, and accepted me for who I was,” dean of community engagement and operations/chief diversity Daniel said. “They thought that I would be a good addition to officer. “Ms. Daniel being selected as its first Black EIC is evidence UK, and that sold me.” Daniel said little can prepare a student for of great results stemming from having a broader representation and the rigor of law school, but four years of work experience between participation of highly talented individuals, who happen to also be receiving her undergraduate degree and entering law school helped diverse. Congratulations to Ms. Daniel and congratulations to KLJ her to hone time management skills. “The professors make this for their commitment that shows UK Rosenberg Law is a place experience incredibly worthwhile,” Daniel said. “The coursework where diversity and inclusion are valued.” KLJ has continuously can be intimidating, but “every professor I’ve had has been willing published since 1913 and is the 10th oldest continuously published to sit with me and help me understand dense legal material.” law review in the nation. Asked for advice she would give future students of color who want “Ms. Daniel represents the kind of dedicated, talented, and pas- to serve on the KLJ board or as editor-in-chief, Daniel said students sionate student we have at UK Rosenberg Law,” UK Rosenberg should talk to people on the board and attend events. “Very few Law Dean Mary J. Davis said. “She will be a great leader of the people know about what law review entails until they’re members,” Kentucky Law Journal and will enhance any community where she Daniel said. “I thought that my questions were silly, but in actuality, takes her legal talents. Congratulations to her, and the KLJ.” As they were reasonable questions.” Daniel said she is excited about an undergraduate at Suffolk University in Boston, Daniel studied the upcoming year as EIC. “I feel honored and am truly grateful psychology. However, growing up, she saw her peers and classmates that my peers thought I’d be best for this important position,” she said. “It still feels surreal.”

28 | MAY/JUNE 2021 BENCH & BAR | 29 COLUMNS

ongratulations AND arewBY MIRANDAell D. CLICK, YLD CHAIR s my year as the Young Lawyer’s Divi- Csion Chair comes to an end, I would like Attorney General Cup A to take the time to thank those who Frost Brown Todd, LLC – Louisville Office worked so hard to make this year a success. The 56,390 pounds total YLD has an outstanding group of lawyers in lead- ership roles on the executive committee, and without Bar President Award them, we would not have accomplished the many goals Pillersdorf Law Offices- Prestonsburg we achieved this year in spite of the pandemic. I would also like 20,641 pounds per attorney to thank the KBA staff for everything they have doneF to support the YLD this year. Your assistance and willingness to answer all Large Firm my questions have been instrumental. Thank you to each member - Louisville of the Board of Governors and the entire KBA for your support Stites & Harbison this year. You always made me feel welcome and many of you took 319 pounds per attorney (25,553 pounds total) an active role in promoting YLD endeavors by stacking apples for the Legal Food Frenzy or encouraging young lawyers in your Medium Firm firms to participate in the YLD. Additionally, thank you to our McMurry and Livingston, PLLC - Paducah wonderful sponsors, Lawyers Mutual of Kentucky and National 978 pounds per attorney (10,758 pounds total) Insurance Agency. Your support allows the YLD to continue to offer programming to its members as well as community outreach Small Firm activities that benefit the Commonwealth. Finally, thank you to Burnside Law, LLC - Ashland every YLD member and supporter of the YLD. Your participation 5,696 pounds per attorney (28,480 pounds total) and encouragement have meant everything to me this year. It has been an honor to serve as chair to such a great organization. Solo Firm Bailey Law, PLLC - Lexington I would also like to thank the many legal organizations who par- 2,468 pounds per attorney (2,468 pounds total) ticipated in the 5th Annual Legal Food Frenzy. Because of your support and generosity, we surpassed our goal and raised $60,488 Government and Public Service in monetary donations to help feed the food insecure in Kentucky! U.S. Bankruptcy Court – Once you add the physical food donations, our total pounds equiv- Eastern District of KY - Lexington alent raised is 492,597 pounds! I’m thrilled with this outcome 3,320 pounds per attorney and truly moved by your generosity, particularly in these uncertain times. I’m also incredibly grateful and proud of the Legal Food Law School Frenzy Committee members who did an outstanding job planning UK Rosenberg College of Law, and promoting the campaign. Now without further ado, I happily congratulate this year’s Legal Food Frenzy winners: Student Bar Association - Lexington 6,420 pounds

Due to social distancing factors, we are still working out the Corporate details regarding when these winners will be honored with an The Glenview Trust Company - Louisville awards ceremony, so be on the lookout for an email with more 18,976 pounds information on that very soon! State Bar Association District Seventh District 29,036 pounds per attorney (68,156 pounds total) 30 | MAY/JUNE 2021 Additionally, this year the Legal Food Frenzy started recognizing VIPs who donated $100 dollars or more individually to the campaign. I am so thankful for the participation and generosity of the following VIPs:

Becca D. Adams Andrew C. Emmert Jennifer Lawrence Patrick Riley Cindy Allen David Erhart Virginia Lawson Brittany Riley Todd Allen Gregory Erpenbeck Wade Lawson Charles Rittgers Ryan Altman Mark Farmer Nathan Lee Laura Lee Robey Olivia Amlung Laura Farmwald Byron Leet John Rosenberg Tom Anderson Marjorie Farris Philip Leslie Kierston Rosenthal Alan Applegate Lisa Fauth Ian Lofwall Cyrus Safari Phil Austin Sherry Feldpausch Rev. Ron Loughry Ridley Sandidge Whitney Bailey Mike Fine Alan MacDonald Rebecca Schafer Jennifer Barber Tom Flanigan Richard Mains Ivan Schell David J. Barberie Joseph Fuerst Jeffrey Mando Patrick Schmeckpeper Elizabeth Barrera Scott Furkin Alicia Mattingly Brian D. Schofield Jonas Bastien Mary Garris Sharon Mattingly Fletcher Schrock Gerald E. Benzinger Cris George Keith McCormick Kelly Schutz Nathan Berger C. Edward Glasscock Sarah McKenna John W. Scruton Anthony Bickel Thomas Gleason Ryan McLane Lance Sennerr Rhonda Blackburn Lea Goff Teresa McMahan Gary Sergent To close my final article as chair of the William Brammell Pamela Gondzur Zackary McMillan Julie Sharp YLD, I would like to encourage each of Bethany Breetz Isaac Gover Emily Meyer Rebecca Sherman you to become members of the YLD if you Max Bridges Karen Greenwell Richard G. Meyer Cathy Sickels are eligible to do so. If you are already a Debra Broz Tammy Gross Emily E. Meyer Michael Sketch member, please consider taking a leadership Kelly Bryant Mark Guilfoyle Nancy Meyers Candace Smith role. My time with the YLD has opened Gregory Bubalo Timothy Hagerty Marianna Michael Evan Smith doors and helped me network with some Kyle Bunnell Colby Hall Marcia Milby Ridings Stephen Smith of the finest attorneys across the state. It R. Stephen Burke Shannon Hamilton Kathryn Moore Susan Speckert has been rewarding, challenging, and fun! Amy Burnette Chris Harris Tyler Moore Jane Spiegel While my time as a young lawyer is coming Nichole Bush Matthew Hart Daniel Morgan Robert Srodulski to an end, I know that the YLD will be in Samuel Butler Debra Heaster Grahmn Morgan Terri Stallard great hands moving forward. I would like Brad Butler Ruth Heil Robert Morrin H. Powell Starks to congratulate and introduce to you next Deno Capello Allison Helsinger Ryan Mosley Alison Stemler year’s Officers and district representatives Miranda Carter Brooks Herrick Ronald Mullet Mary Ann Stewart who are as follows: Michael Casey Larry Hicks Theodore Myre Kara Stewart Diane Cayce Sheila Hiestand Scott Neff R. James Straus MEGAN P. KEANE • Chair: Seth Church Chandler Hodge Josh O’Bryan Shela Sutphin • Chair Elect: LEE METZGER Miranda Click Robert M. Hoffer Michael O’Hara Amanda Thompson Susan Thompson-Mooney ELIZABETH A. COMBS Bayard Collier Jane Hood Harry Overtoom • Vice Chair: Elizabeth Combs Ellie Houston Cathleen Palmer David Treacy • First District: PATRICIA L. ESTES Teresa Combs Patrick Hughes Claire Parsons Susan Tucker Kimberly Combs Rose Hutchinson Peggy Patterson Tonya Vaught Second District: JOYE BETH SPINKS • Laurel Cornell Franklin Jelsma Rod Payne Jeffrey Wallach • Third District: BRITTANY RILEY Peter Cummins Shaye Johnson Jack Phillips Robert Waterman Ann Curry William Jones Tanner Watkins • Fourth District: KRISTEN N. CODY Neil Pillersdorf Cathy Cusack Megan Keane Brian Pollock Elizabeth Weber KYLE BUNNELL • Fifth District: Rachael Dahlman Robert Kellerman Kent Price John Weber • Sixth District: ELIVIA RABE Mary Davis Dennis Kennedy Cheryl Priddy Sheree Weichold DON COMBS, JR. Laura Day Delcotto Chad Kessinger Ann Mary Quarandillo Zachary Weinberg • Seventh District: Elizabeth Deener Ted King Kathryn Quesenberry Nicole White Scott W. Dolson Crystal King Sean Quigley Kent Wicker Christine Dreiling Stephen Klausing Robyn Raque Matt Williams James A. Dressman Matthew Klein David Reynolds Tracy Wiseman Rob Duncan Walter Koczot Chris Rhoads Timothy Wiseman Katelyn Dunnington Kyle LaMar John Rhorer Brian Wood Kathleen Eckert Douglas Langdon Kathryn Richardson John Woodard Angela Edwards Ashley Lant Michael Richardson Katie Wright Tawana Edwards Darryl Lavery Kelly Ridings Gerald Wuetcher Ann Elpers Emily Lawrence James Ridings

BENCH & BAR | 31 EFFECTIVE LEGAL WRITING Sweat the Small Stuff: Careful Proofreading is Key to Persuasive Legal Writing BY KRISTIN J. HAZELWOOD THE PROBLEM. MISSPELLED WORDS. Ironically, the use of spell check is likely to blame for the frequency According to principles of classical rhet- of misspelled words in our writing. Although spell check is helpful in confirming that a oric, audiences are persuaded by a writer’s word is spelled correctly, it does not confirm that the word is spelled correctly in that context. appeals to logic (“logos”) and to emotion For example, although “trail” is a correct spelling, it is incorrect when used to describe a and values (“pathos”), as well as by the writ- court, as in a “trail court” instead of a “trial court.” er’s credibility (“ethos”).1 With respect to a writer’s credibility, audiences consider MISSING OR REPEATED WORDS. I suspect that writers omit or repeat words in their the writer’s “intelligence, character, and writing when their fingers cannot type as fast as their brain can think of ideas. Because 2 good will.” A writer demonstrates intelli- the writer’s focus is on the complex analysis being conveyed, it is easy to make mistakes gence in part by showing that he or she is in the ministerial task of typing. “detail-oriented.”3 SENTENCE FRAGMENTS. Like with the last type of error, sentence 4 Careful proofreading is one way that a fragments are likely the product of the writer working quickly to writer shows he or she is detailed-oriented. capture ideas on the page. A sentence fragment, which results In my experience of teaching law students, when a sentence is missing either a subject or a complete verb, is I have noticed several reoccurring proof- essentially an incomplete thought. reading errors.5 APOSTROPHES. Errors in apostrophes are easy to make and happen frequently, perhaps because the rules regarding plurals and possessives are often confused or overlooked. The tendency here leans toward the overuse of apostrophes. THE SOLUTION. How then does the effective legal writer make sure that his or her writing is free from proofreading errors?6 I suggest the following:

PROOFREAD WITH FRESH EYES. Proofreading is tedious work, and it is best performed when the writer is well-rested and has had a break from the document. First, tired eyes cannot focus sharply enough to catch errors. We may think we do our best work “under pressure,” but few of us do. Second, the writer needs a break between writing and proofread- ing so that the writer can focus on what the document actually says rather than what the writer thinks it says after having worked on it for an extended period of time.

32 | MAY/JUNE 2021 ABOUT THE AUTHOR ENDNOTES KRISTIN J. HAZELWOOD is an associate professor of legal 1 Michael R. Smith, Advanced Legal Writing: research and writing at the University of Kentucky J. David Theories and Strategies in Persuasive Writing Rosenberg College of Law. Prior to joining UK Law in 2012, 12-13 (3rd ed. 2013). she taught legal writing at Vanderbilt University Law School and 2 Id. at 149 3 Id. 186-87. Belmont University College of Law. Before teaching, she practiced 4 Proofreading errors such as the ones de- with Bass, Berry & Sims, PLC, in Nashville. She received her scribed in this article can (and frequently do) law degree from Washington and Lee University School of Law. occur even in the writing of lawyers who are knowledgeable about correct grammar and punctuation. Although the tips described in this column can be used to identify errors regardless of their cause, this list of com- mon mistakes focuses on pure proofreading PROOFREAD A HARD COPY. Proofreading a document on a computer screen may seem 7 errors (rather than common grammatical or to save paper and time, but it is not as effective for catching errors. I’ve learned from both punctuation errors). For writers needing a my own writing as well as my interactions with my students that proofreading a hard copy refresher on rules of grammar or punctuation, is the best way to ensure an error-free document. the Purdue University On-line Writing Lab, which is available at owl.purdue.edu/owl, is a DON’T TRY TO FIX EVERYTHING AT ONCE. great resource. Proofreading can be overwhelming if the 5 For a helpful list of common errors, see writer tries to take on too many tasks at once. Rather than proofread for all categories https://owl.purdue.edu/owl/general_writing/ of errors at once, break the proofreading work up into stages. For example, one review of the_writing_process/proofreading/proofread- ing_for_errors.html. the document might be for grammar and punctuation errors, and another review of the 6 Because the lawyer must vouch for the con- document might be for citation or formatting errors. tents of the brief by signing his or her name to it, proofreading is too important of a task to be UTILIZE TECHNIQUES THAT FORCE THE EYE TO FOCUS ON EACH WORD. By the time delegated. 7 Proofreading from Hard Copy, Daily Writing the writer has finished writing a brief, the writer knows what it is supposed to say and can Tips, https://www.dailywritingtips.com/proof- unintentionally overlook errors. For that reason, it is important to employ techniques that reading-from-hard-copy/ (last visited April 7, require the writer to look individually at each word on the page. Some of my most often 2021). used techniques include putting a ruler or piece of paper under each line of text as I read, reading the document out loud, and reading the sentences in the document in reverse order.

Proofreading is undeniably tedious, but proofreading errors in a brief can make the audience question the writer’s credibility. Given the amount of thought and time that lawyers invest in crafting and sup- porting their legal arguments, time spent proofreading is time well spent.

BENCH & BAR | 33 LAW PRACTICE MANAGEMENT 2021 ABA TECHSHOW Helping Lawyers Helping People BY ROBERT (BOB) YOUNG oday, over 39 states in the U.S., including Kentucky, have amended their rules of ethical conduct to include “tech- Tnology competence” as a fundamental duty of practicing shouldering some of that risk, they place it all on the consumer. attorneys. These rules were updated in response to the American Bar This results in most legal needs not getting met along with a slew Association’s 2012 change to its Model Rules of Professional Con- of unhappy clients. Imagine General Motors selling you a car and duct Rule 1.1, which reads: “To maintain the requisite knowledge not knowing how much it is going to cost them to produce it. and skill, a lawyer should keep abreast of the law and its practice, Imagine when you purchase the car, the salesperson tells you that including the benefits and risks associated with relevant technology, you can pay something down, and we will agree to the final price engage in continuing study and education, and comply with all con- once you are done with the car. Neither party benefits from this tinuing legal education requirements to which the lawyer is subject.” type of transaction.

For many years, I have had the opportunity to attend the ABA So how do we as lawyers best address this issue? The key is special- TECHSHOW in person. This year, as a result of the ongoing ization. Knowing your area of law allows you to use that expertise pandemic, the TECHSHOW took on a new form by providing to develop the best product along with an ability to best estimate a virtual experience. Having never attended a virtual conference, the cost, thus decreasing the risk to the client. For that matter, it I was not sure what to expect. Although I missed the interaction also allows you as the lawyer to know if the work is going to be with the many vendors and seeing firsthand their new cutting edge profitable before embarking on the representation. products, the TECHSHOW programming proved to be better than ever. The virtual format allowed participants to switch back The ability to estimate your cost is aided if you have case manage- and forth in seconds, thus allowing participants to seamlessly find ment software in place. Case management software allows you to the programs that best fit their needs. My eyes were immediately use your law firm data to estimate the cost to the client. Accurate opened to the idea that this could be the conference of the future. and transparent pricing and packaging makes for happy clients, The TECHSHOW programming started out with a bang. Jack which results in a more profitable practice. Newton, the founder of Clio, and Ed Walters, the founder of Fast- case, presented one of the best programs that I have seen in my 10 Newton and Walters were also quick to point out that the changes plus years of attending this conference. Their initial advice was that that have resulted from the pandemic are permanent. Law firms we need to innovate towards not just a new normal, but a better must be willing to innovate and shift to the new environment. normal. We should not be concerned with trying to recreate the law Unless we continue to make incremental improvements in the firm of 2019. For many lawyers, especially those in small and solo way we deliver legal services, the market will pass us by (think firms, the law firm of 2019 was already not operating efficiently. Blockbuster/Netflix). This is best demonstrated by two important statistics from the 2020 Clio Legal Trends report: 1) 77% of consumers with legal problems I challenge you to think about legal issues from the perspective of didn’t feel they received the appropriate legal services; and 2) 81% the consumer. If you were the consumer, how would you like your of lawyers believe the key to growing profitability is to get more legal needs addressed? If 77% of consumers with legal problems clients. The key is to figure out how to get the crossover. In short, didn’t feel they received the appropriate legal services, this can only you can get more clients from figuring out better ways to address be solved by lawyers who are willing to innovate and try new ideas. consumers’ needs. For those who do, it will mean more new and happy clients.

According to Newton and Walters, price is typically not the prob- So, what does innovation look like? Clio is gathering information lem as most may be thinking. The actual problem is the risk to for their 2021 Legal Trends report right now. Their biggest finding the consumer. Many lawyers don’t know how much it is going to so far is that the main reason people are hiring certain lawyers/ cost to provide the legal representation requested and, instead of firms over others is client reviews and client referrals (think Google

34 | MAY/JUNE 2021 My Business). For you as a lawyer, your first task is to develop retention, which leads to happier clients and more business. Client ways to make the connection with the 77% of consumers looking satisfaction is critical for word-of-mouth referrals, online reviews, for a lawyer who can solve their problem by finding easy ways to and law firm reputation. Remember, these are the top drivers for connect. Although some networking continues to occur in person, new business. most meaningful networking now occurs on social media. This is especially true when there are restrictions that prevent in person One of the other major findings from both Clio reports is that the socialization. Social media is a great way to engage, and platforms lawyer who returns the call or email first normally gets the work. like Facebook and Twitter are very easy to set up and use. Lawyers Running a practice, especially if you are solo, requires constant com- should also be updating your websites to showcase your specializa- munication with your clients. If you struggle to make this happen tion, especially if you can price and package the work. This creates in your current environment, there are a growing number of virtual an instant connection. receptionists available to assist, including Lex Reception, Ruby Receptionists and Answer 1 to name a few. All of these vendors The second biggest finding from the 2021 Legal Trends Report is allow your phone to be answered 24/7 or for an immediate chat that consumers are selecting lawyers and firms not based on their with a prospective client. If potential clients are leaving a voice- fancy office, but instead their ability to automate and work with mail or having emails left unread regarding a new case, they are them remotely. Once again, this is almost impossible without case probably already calling or chatting with someone else. Don’t let management software. Many law firms today continue to oper- them slip away. ate without using some type of legal case management software, especially small and solo firms. This reluctance largely stems from There are a vast amount of resources available to help service your a flawed belief that the cost of legal case management programs clients and help you promote and run your practice. If you are trying is prohibitive, along with a fear of new technology. As mentioned to get back to where you were pre-pandemic, you are probably going above, the costs are greatly outweighed by the benefits of the soft- to fall further behind. New products and new technology will make ware, especially from a pricing standpoint. you a better lawyer and create a more profitable practice. Change is good. Change is necessary. Take advantage, innovate and become Case management programs also allow firms to streamline their that go-to lawyer who can get more clients and more importantly practice. This frees up valuable time for marketing and client solve their legal issues.

ABOUT THE AUTHOR ROBERT (BOB) YOUNG is man- aging partner of English, Lucas Priest and Owsley, LLP, in Bowling Green, Ky. His 30-year career in law has primarily focused on personal injury litigation. He is also a focused and respected mediator. He previously served as chair of the Task Force on Law Office Management for the Kentucky Bar Association. He is also involved extensively in the American Bar Association. From August 2014 to 2015, he served as Chair of the Law Practice Division. He is now serving on the Law Practice Division Council. Follow him on Twitter at @BobYoungELPO.

BENCH & BAR | 35 BAR NEWS summary of minutes kba BOARD OF GOVERNORS MEETING • JANUARY 15, 2021

The Board of Governors met on Friday, • Approved Mercer as the broker for the • Ratified the email vote to approve Bry- January 15, 2021. Officers and Bar Gov- Association Healthcare Program. an Wilson and Jesse Wright, both of ernors in attendance were, President T. Mayfield, as the Board’s nominees for Young Lawyers Division (YLD) Chair Kerrick, President-Elect J. Meyer, Vice • the 52nd Circuit Judicial Nominating Miranda Click reported that YLD is President A. Cubbage, Immediate Past Commission. President S. Smith, Young Lawyers Divi- working on the Legal Food Frenzy in- sion Chair M. Click and Young Lawyers dicating that they were going to rely • Ratified the email vote to approve the Division Chair-Elect M. Keane. Bar Gov- heavily on social media this year and 2021 Staff Holiday Schedule. st nd had created an apple stacking challenge ernors 1 District – J. Sigler, V. Sims; 2 Approved the amendments to the to having YLD members tag other • District – M. Cook, S. Montalvo-Gesser; Family Law Section Bylaws to split the rd th members and encourage them to par- 3 District – D. Benge, J. Ridings; 4 Dis- secretary and treasury officer positions th ticipate in the challenge and the Legal trict – S. Phillips, J. Watkins; 5 District and retain the option to combine them th Food Frenzy. – A. Adams, M. Barfield; 6 District – J. again in the future, if needed. th Gatherwright, T. McMurtry; and 7 Dis- • Approved holding the 2021 Annual Mr. Meyers reported that the KBA trict – R. Blackburn, W. Hall. Convention virtually for the safety and • Members Services Committee had well-being of the members. In Executive Session, the Board of Gov- been inactive for several years and ernors considered three (3) disciplinary • President Kerrick reported that he was it was time to revitalize the group to default cases, involving one attorney, one very pleased with the response received provide more programs, products, and (1) reinstatement case and one (1) resto- regarding the activities of Lawyers Ad- services to our members. Several years ration case. Dr. Saundra Ardrey of Bowling vocating Wellness (LAW) initiative. He ago, the Law Practice Task Force was Green, Kenneth Bates of Hopkinsville, also reported on upcoming programs. created and their work has now been completed. The Board approved recon- Greg Caudill of Danville, and Callie Foster Approved the recommendation of Jer- • stituting the KBA Member Services of Paducah non-lawyer members serving on ry Cox, Whitney True Lawson and Committee and reorganizing it with the Board pursuant to SCR 3.375 partici- David Ward to provide to the Gover- the members from the KBA’s Law pated in the deliberations. nor for the appointment to the Public Practice Task Force to provide the best Advocacy Commission created by the services and products to the members. In Regular Session, the Board of Governors resignation of former Chief Justice Jo- conducted the following business: seph Lambert. • Mr. Meyers reported that the staff • Heard status report from the Rules • Approved sending a Practice in the Pan- is continuing to work remotely. The Committee. demic Survey to the membership pre- Board approved closing the Bar Cen- th • Approved the Fiscal Year June 30, 2020 pared by Mike Fore, an attorney and pro- ter on January 20 due to the potential Audit Report presented by RFH, PLLC. fessor, at Eastern Kentucky University. demonstrations in Frankfort. • Approved the proposed Fiscal Year 2021-2022 KBA and IOLTA Fund Budgets. • Approved the lists of members who should be suspended for non-payment kba members of dues. Do you have a matter to discuss with the • President Thomas Kerrick and KYLAP KBA’s Board of Governors? Director Yvette Hourigan provided an overview of the recent loss of several Board meetings To schedule a time on the Board’s attorneys by suicide and reported on are scheduled on agenda at one of these meetings, several things that the association has please contact John Meyers or July 23, 2021 done and will continue to do to address Melissa Blackwell at the situation. September 17, 2021 (502) 564-3795. 36 | MAY/JUNE 2021 Jest Is For All by arnie glick

Stay Connected. Make sure to follow us to stay in the know.

@Kentucky Bar Association

@KyBarNews

BENCH & BAR | 37 BAR NEWS COMMONWEALTH OF KENTUCKY JUDICIAL ETHICS

COMMITTEEROBERT F. STEPHENS DISTRICT COURTHOUSE 150 NORTH LIMESTONE, SUITE 301 LEXINGTON, KENTUCKY 40507 PHONE 859-246-2296 FAX 859-246-2510

Judge C. Rene’ Williams Judge Irv Maze Judge Jeffrey Scott Lawless Circuit Court Court of Appeals District Court Chair Donald H. Combs David V. Kramer Attorney Attorney FORMAL JUDICIAL ETHICS OPINION JE-129 QUESTION 1: WHERE A CIRCUIT JUDGE IS APRIL 5, 2021 MARRIED TO THE CHIEF OF A Kentucky Circuit Judge is requesting TheNew Code is clear that when the judge THE CITY POLICE, MUST THAT guidance because her husband has been is married to an individual who is likely to JUDGE RECUSE IF A CITY appointed to the position of Chief of the be a material witness in a proceeding the POLICE OFFICER IS A MATERIAL City Police. Her question to the Commit- judge must recuse. WITNESS IN A CASE BEFORE HER? tee is whether she is now required to recuse ANSWER 1: any time a city police officer is a material Canon 2.11(A)(2)(d) provides: witness in a case before her. She also asks YES. if this disqualification is waivable. (A) A judge shall disqualify himself QUESTION 2: or herself in any proceeding in The New Code is clear that a judge must which the judge’s impartiality IS THIS DISQUALIFICATION recuse if the judge’s spouse is likely to might reasonably be questioned, WAIVABLE? be a material witness to the proceeding. including but not limited to the ANSWER 2: Canon 2, Rule 2.11(A)(2)(d). The Judge following circumstances: has explained to the Committee that YES. . . . . because her husband is now the supervi- sor, it is unlikely he will be called to testify. (2) The judge knows that the He will, however, be directing other police judge, or the judge’s spouse officers in the performance of their jobs and or domestic partner, or a as Chief of Police will be making policy person within the third decisions that she will review. Therefore, degree of relationship of the Judicial Ethics Committee believes the either of them, or the spouse spouse’s official responsibilities require the or domestic partner of such a judge to recuse any time one of her spouse’s person: subordinates is likely to be a material wit- . . . . ness in the judge’s courtroom. Whether the police officer is a material witness or not (d) likely to be a material witness depends on the facts of the particular case in the proceeding. and the relevance and probative value of the officer’s testimony. Under the present facts, the spouse is not likely to be a witness, but he does direct I. THE NEW CODE AS WELL AS the duties and make policy decisions that PRIOR ETHICS OPINIONS IN govern the responsibilities of the police KENTUCKY AND ELSEWHERE officers who will be called to be material REQUIRE A JUDGE TO DISQUALIFY witnesses. This fact appears to bring these WHENEVER THE JUDGE’S SPOUSE circumstances within the scope of subsection SUPERVISES AN INDIVIDUAL (A) in which a judge’s impartiality might LIKELY TO BE A MATERIAL reasonably be questioned. Other Judicial WITNESS IN THE PROCEEDING. Ethics Opinions support this conclusion.

38 | MAY/JUNE 2021 In Kentucky, Judicial Ethics Opinion JE-80 Whether a witness is material depends Bias and prejudice are the only reasons for held that where the judge was married on the facts of the case. The Court should judicial recusal that cannot be waived. The to a person who was an attorney for and consider the relevance and probative value other authority cited herein would appear the deputy commissioner of the Natural of the witness’s anticipated testimony in to support the conclusion that a personal Resources and Environmental Protection determining whether the witness is mate- relationship between a judge and the super- Cabinet, the spouse was an officer of the rial. See Sinnett v. Commonwealth, 364 visor of a material witness giving rise to an party and the judge was disqualified from S.W.3d 70, 85 (Ky. 2011). appearance of impropriety does not rise to hearing any cases involving the Cabinet. the level of actual bias because they held The opinion did not specifically say that II. THE KENTUCKY SUPREME that the conflict could be waived. Based the judge’s spouse was a supervisor, but by COURT HAS MADE IT CLEAR on the weight of the foregoing authority, finding that the spouse was an officer and a THAT WHERE THE NEW CODE and assuming additional facts do not indi- policy maker, to a certain extent, that posi- AND THE STATUTE SAY “SHALL,” cate a contrary result, the Judicial Ethics tion was implied. The Committee went on RECUSAL IS MANDATORY; Committee believes the obligation to recuse to hold that recusal was mandatory because HOWEVER, ABSENT EVIDENCE is waivable where a judge is married to a the situation presented an appearance of OF ACTUAL BIAS OR PREJUDICE, supervisor of a material witness. impropriety. The Committee also held that THE RECUSAL MAY BE WAVED. disqualification could be waived. In conclusion, the Committee believes that Judicial Ethics Opinions from outside Recently, the Kentucky Supreme Court where a material witness is supervised by Kentucky have reached a similar result decided the case of Abbott v. Guirguis, --- the judge’s spouse and a party objects, i.e., with regard to the obligation to recuse. An S.W.3d ---, 2021 WL 728860 (Ky. 2021). there is no waiver, the judge must recuse opinion from the Advisory Committee on The case applied theNew Code and held from the case. Standards of Judicial Conduct of the State that where an objective, reasonable person of South Carolina held that a county mag- knowing all the relevant facts and cir- istrate could not preside over proceedings cumstances might reasonably question Sincerely, involving employees of the county sher- the judge’s impartiality, the appearance iff where the magistrate was dating the of impropriety exists and recusal is man- sheriff. Under those circumstances the datory. The Court inAbbott also changed /S/ Irv Maze public would believe that the magistrate the applicable standard of appellate review was biased in favor of witnesses who were from abuse of discretion to de novo. The Judge, Court of Appeals and employees of the sheriff even though the pertinent statutory provision is essentially Chair sheriff was not a witness in the case. Here, the same as the language of the Code. See The Ethics Committee of the again, the problem was the appearance of KRS 26A.015(2)(e). (“Any justice or judge Kentucky Judiciary impropriety. SC Adv. Comm, Std. Cond., of the Court of Justice or master com- OPINION NO, 2-2018 (January 9, 2018), missioner shall disqualify himself in any 2018 WL 505939. proceeding. . . [w]here he has knowledge of cc: TheHonorable C. Rene’ Williams, any other circumstances where his impar- Judge, Circuit Court A 2013 ethics opinion from the State of tiality might reasonably be questioned.”). New York reached a similar result. The The Committee believes that a situation in The Honorable Jeffrey Scott ethics opinion held that a part-time judge which the judge is married to the supervisor Lawless, Judge, District Court who was married to a person who worked of a material witness satisfies the test of for the county probation department and the Abbott case since an objective, reason- Donald H. Combs, Esq. who supervised some of the probation able person knowing all the surrounding officers must recuse himself when the facts and circumstances would believe the David V. Kramer, Esq. material witness is one his wife has super- judge’s impartiality might reasonably be vised. Because she was the supervisor, she questioned, and thus the judge must recuse. Jean Collier, Executive Secretary was directly involved in those proceedings even though she was not a witness. The Committee notes thatAbbott does not address whether an otherwise man- The judge’s decision to sit would create datory recusal “in a proceeding where the an appearance of impropriety. The Ethics judge’s impartiality might reasonably be Committee held, however, that the decision questioned” is waivable. Waiver was not an of the judge to recuse was waivable. NY issue in Abbott due to the fact an objec- Jud. Adv. Op. 13-108 (September 12, 2013), tion had been made and the Court found 2013 WL 8477977. evidence of prior animosity (though not necessarily current actual bias) on the part of the judge toward the objecting party.

BENCH & BAR | 39 BAR NEWS

FORMAL ETHICS OPINION KENTUCKY BAR ASSOCIATION

ETHICS OPINION KBA E-453 ISSUED: MARCH 19, 2021

THE RULES OF PROFESSIONAL CONDUCT ARE AMENDED PERIODICALLY. LAWYERS SHOULD CONSULT THE CURRENT VERSION OF THE RULE AND COMMENTS, SCR 3.130 (AVAILABLE AT HTTP://WWW.KYBAR.ORG/237), BEFORE RELYING ON THIS OPINION.

CONFIDENTIALITY OF INFORMATION FOR FORMER GOVERNMENT OFFICERS OR EMPLOYEES DISCUSSION QUESTION NO. 1: May a former government officer or employee, in connection with a matter in which the lawyer substantially and personally participated, Before this Committee responds to the disclose information about that matter to third parties?1 preceding questions we call the reader’s attention to the fact that this Committee ANSWER: Yes, but only with the informed written consent of the appropriate is not authorized to provide legal advice government entity and in the absence thereof the lawyer may not do and must restrict itself to responding to so. See Discussion. questions of professional conduct. However, we caution our readers that the presented QUESTION NO. 2: May a former government officer or employee, in connection with a questions do raise issues of law, for example, matter in which the lawyer substantially and personally participated, work product privilege, etc.; therefore, we be a fact witness in proceedings about that matter? suggest that the former government lawyer ANSWER: Yes, but only with the informed written consent of the appropriate consider the implications of federal and government entity and in the absence thereof the lawyer may not do Kentucky law on such issues. This Com- so. See Discussion. mittee will now proceed to address those issues arising under Kentucky’s Rules of QUESTION NO. 3: May a former government officer or employee, in connection with a Professional Conduct. matter in which the lawyer substantially and personally participated, serve as an expert witness in proceedings about that matter? We start our review of the ethics issues with a consideration of SCR 3.130(1.11), ANSWER: Yes, but only with the informed written consent of the appropriate Special conflicts of interest for former and government entity and in the absence thereof the lawyer may not do current government officers and employees, so. See Discussion. as follows. QUESTION NO. 4: May a former government officer or employee serve as an expert witness (a) Except as law may otherwise in proceedings about a matter in which the lawyer did not substantially expressly permit, a lawyer who has and personally participate, but which took place while he/she was a formerly served as a public officer or government officer or employee? employee of the government: ANSWER: Yes. See Discussion. (1) is subject to Rule 1.9(c); and REFERENCES: STATUTE: 18 U.S. Code §207(i)(2); and (3); RULES OF SUPREME (2) shall not otherwise represent a COURT OF KENTUCKY: SCR 3.130(1.7); SCR 3.130(1.9(c)); client in connection with a matter in SCR 3.130(1.11); SCR 1.130(1.12(b)); and SCR 3.130(8.3) and SCR which the lawyer participated person- 3.130(8.4); ally and substantially as a public officer CASES: Whitaker v. Commonwealth, 895 S.W.2d 953 (Ky. 1995); Bullock or employee, unless the appropriate v. City of Covington, 698 Fed.Appx. 305, (6th Cir. 2017); government agency gives its informed ETHICS OPINION: ABA Formal Opinion 479 (December 15, 2017); consent, confirmed in writing, to the and SECONDARY SOURCES: ABA’s Annotated Model Rules of representation. Professional Conduct (Eighth Edition – 2015);Wolfram, Former Client Conflicts, 10 Geo. J. Legal Ethics 677 (Summer 1997). (b) . . . .

40 | MAY/JUNE 2021 (c) Except as law may otherwise (e) As used in this Rule, the term the former client except as these Rules expressly permit, a lawyer having “matter” includes: would permit or require with respect to information that the lawyer knows a client, or when the information has is confidential government informa- (1) any judicial or other proceeding, become generally known; or tion about a person acquired when application, request for a ruling or the lawyer was a public officer or other determination, contract, claim, (2) reveal information relating to the employee, may not represent a pri- controversy, investigation, charge, representation except as these Rules vate client whose interests are adverse accusation, arrest or other particular would permit or require with respect to that person in a matter in which matter involving a specific party or to a client. the information could be used to the parties, and As to the issue of what constitutes a material disadvantage of that person. (2) any other matter covered by the As used in this Rule, the term “con- “matter” for purposes of Rule 1.9 and then conflict of interest rules of the appro- Rule 1.11 the American Bar Association’s fidential government information” priate government agency. means information that has been text Annotated Model Rules of Professional obtained under governmental author- Conduct (Eighth Edition – 2015) offers the Rule 1.11(a)(1) incorporates by reference following advice that we consider helpful. ity and which, at the time this Rule is the provisions of Rule 1.9(c) and this Rule applied, the government is prohibited amplifies the former government law- Lawyers formerly employed by the by law from disclosing to the public yer’s ethical responsibilities to protect his government—whether or not in a or has a legal privilege not to disclose prior employer’s confidential information. “lawyer” capacity—are not subject to and which is not otherwise available Further, Rule 1.9(c) also adds specific pro- the general rule on former-client con- to the public. A firm with which that hibitions on a former government lawyer flicts. Under Rule 1.11(a) the trigger lawyer is associated may undertake or not to disclose her prior employer’s con- for disqualifying a lawyer formerly continue representation in the matter fidential information. Rule 1.9(c) is as employed by the government is personal only if the disqualified lawyer is timely follows. and substantial participation in the same screened from any participation in the matter, as opposed to actual represen- matter and is apportioned no part of (c) A lawyer who has formerly repre- tation in the same or a substantially the fee therefrom. sented a client in a matter or whose related matter. And if a former govern- (d) Except as law may otherwise present or former firm has formerly ment lawyer is disqualified based upon expressly permit, a lawyer currently represented a client in a matter shall personal and substantial participation serving as a public officer or employee: not thereafter: in the same matter, his new colleagues (1) is subject to Rules 1.7 and 1.9; and (1) use information relating to the can use screening and notice to avoid representation to the disadvantage of imputation. In the private sector, (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in pri- vate practice or nongovernmental employment, unless the appropri- ate government agency gives its informed consent, confirmed in writing; or You Hurt? We Fight! The Law Offices of Ron Sholes, P.A. is a personal injury law firm with ten offices (ii) negotiate for private employ- located throughout Northeast Florida. Our firm truly lives by our slogan, “You Hurt? ment with any person who is We Fight!” We need attorneys with the same mindset and are compelled to zealously involved as a party or as attorney advocate for their clients. Only motivated leaders, and future leaders, looking to fight for a party in a matter in which for our clients and not back down from the daily grind of the industry, need apply. the lawyer is participating person- Seeking all levels of experience from newly licensed junior associates to attorneys ally and substantially, except that a with 10+ years of experience in personal injury. Must have membership in good lawyer serving as a law clerk to a standing with the Florida Bar. judge, other adjudicative officer or Benefits include: arbitrator may negotiate for private employment as permitted by Rule • Florida Blue Major Medical • Generous 401(k) plan with • Annual bonus 1.12(b) and subject to the condi- • Dental and Vision Insurance matching contributions opportunities tions stated in Rule 1.12(b). • Life Insurance Email your resume to [email protected] www.youhurtwefight.com

BENCH & BAR | 41 BAR NEWS

nonconsensual screening would not recommendation, the rendering of advice, on Rule 1.11. In Bullock the City’s lawyer prevent imputation. investigation, or otherwise.2 Personal and worked on nuisance complaints and vari- … substantial participation includes the ous issues related to the City’s streets. This In addition, Rule 1.11(c) prohibits actions of a subordinate when that subordi- former City lawyer argued that because a lawyer … formerly employed by nate was directed by the former government none of his work for the City involved his the government from representing a officer or employee in the matter. A finding current client personally he should not be private client if the lawyer possesses of substantiality should be based not only disqualified. The court, however, noted that “confidential government informa- on the effort devoted to a matter, but on the client’s own complaint included facts tion”—narrowly defined in paragraph the importance of that effort because one’s that were drawn from the various matters (c)—that is damaging to someone involvement on a peripheral issue may not on which the former City lawyer had rep- with adverse interests. This prohibi- be enough. resented the City. Therefore, the Court of tion supplements the lawyer’s duties Appeals found that the district court did of confidentiality under Rules 1.6 and In Whitaker v. Commonwealth, 895 S.W.2d not abuse its discretion when it disqualified 1.9(c), which are fully applicable to 953 (Ky. 1995) the Kentucky Supreme the City’s former lawyer. government lawyers. (See Annotation Court opined that “substantial and personal – Overview at the beginning of anno- participation” would include an exchange As to Rule 1.9(c)’s requirement prohibiting tation text material.) of confidential information in the form a lawyer from subsequently using a client’s of planning and strategy, or discussions information nor revealing it to the disad- In considering what constitutes personal of potential witnesses to be called on the vantage of his former client, the Supreme and substantial participation we adopt defendant’s behalf, or avenues of inves- Court’s Comment to the Rule provides an the common definition for these words. tigation to be taken. In Bullock v. City of exception when it states: “However, the fact Specifically, personal and substantial par- Covington, 698 Fed.Appx. 305, (6th Cir. that a lawyer has once served a client does ticipation means the direct participation 2017) the Court of Appeals for the Sixth not preclude the lawyer from using gener- by a government employee through a Circuit sustained a district court’s order ally known information about that client process of decision, approval, disapproval, disqualifying a former City lawyer based when later representing another client.”

42 | MAY/JUNE 2021 Address or e-mail changes?! (Emphasis added.) As to what constitutes which must be confirmed in writing. Fur- Notify the Kentucky “generally known information” it should ther, we believe, as does the American Bar Bar Association be understood that these words may be Association, that the lawyer’s ethical obliga- Over 19,000 attorneys are licensed misconstrued from what one might think tion exists whether the lawyer government to practice in the state of Kentucky. is generally known in an age where there officer or employee is serving in what may It is vitally important that you keep are many forms of instant communication.. or may not be considered a lawyer’s normal the Kentucky Bar Association (KBA) Here the reader is advised to consider ABA role. Specifically, a lawyer who is subject to informed of your correct mailing Formal Opinion 479 (December 15, 2017) Kentucky’s Rules of Professional Conduct address. Pursuant to SCR 3.035, all where the ABA offered the following guid- cannot leave his ethical responsibilities as ance as to what constitutes generally known a lawyer hanging outside his employer’s KBA members must maintain a current information. offices. address at which he or she may be communicated, as well as a physical Consistent with the foregoing, the As to question four, because the question address if your mailing address is a Committee’s view is that information makes clear that the former government Post Office address. If you move, you is generally known within the mean- lawyer did not substantially and personally must notify the Executive Director of ing of Model Rule 1.9(c)(1) if (a) it participate in the matter that is the sub- the KBA within 10 days. All roster is widely recognized by members of ject of the inquiry, the former government changes must be in writing and must the public in the relevant geographic lawyer may make effective use of and dis- include your 5-digit KBA member area; or (b) it is widely recognized close information that we consider to being 3 identification number. in the former client’s industry, pro- no more than “playbook information.” fession, or trade. Information may Members are also required by become widely recognized and thus SCR 3.035 to maintain with the generally known as a result of public- ity through traditional media sources, Director a unique, valid email address Note To Reader such as newspapers, magazines, radio, and shall upon change of that address This ethics opinion has been formally or television; through publication on notify the Director within 10 days of adopted by the Board of Governors of the internet web sites; or through social the new address. Members who are Kentucky Bar Association under the pro- media. With respect to category (b), classified as a “Senior Retired Inactive” visions of Kentucky Supreme Court Rule information should be treated as 3.530. This Rule provides that formal opin- or “Disabled Inactive” member are not generally known if it is announced, ions are advisory only. required to maintain a valid email discussed, or identified in what rea- address on file and those “Honorary” sonable members of the industry, members who no longer actively profession, or trade would consider a practice law or maintain an office. leading print or online publication or ENDNOTES other resource in the particular field. 1 “Disclosing information to third parties” as There are several ways to update Information may be widely recognized used in this Opinion does not negate, if ap- your address and/or email for your within a former client’s industry, pro- plicable, an attorney’s responsibility to report professional misconduct in accordance with convenience. fession, or trade without being widely SCR 3.130(8.3) and/or (8.4). recognized by the public. For example, 2 For example, see 18 U.S. Code §207(i)(2) and Online: Visit www.kybar.org to make if a former client is in the insurance (3). changes online by logging into the 3 Ethics scholar Prof. Charles W. Wolfram, in industry, information about the former website and editing your profile. client that is widely recognized by Former Client Conflicts, 10 Geo. J. Legal Ethics 677 (Summer 1997) described “playbook others in the insurance industry should information” as a type of general company Form: Complete the Address be considered generally known within information that an attorney may possess Changes/Updates form found at the meaning of Model Rule 1.9(c)(1) concerning an adversary’s general business www.kybar.org, under the For even if the public at large is unaware practices or litigation philosophy acquired during the attorney’s previous relationship Members tab, Members Request, of the information. with the adversary. Address Changes/Updates. Email completed form to [email protected] As to questions one through three, we OR mail to : conclude by advising that the former gov- Kentucky Bar Association, ernment lawyer who has substantially and Executive Director personally participated in a matter that is 514 W. Main St., Frankfort, KY the subject of inquiry may not disclose nor 40601-1812 use any such information unless the govern- ment employer gives the requesting former *Announcements sent to the Bench & Bar’s Who, What, When & Where column or communication with other departments government lawyer its informed consent other than the Executive Director do not comply with the rule and do not constitute a formal roster change with the KBA.

BENCH & BAR | 43 BAR NEWS

to attend the 2020/2021 Kentucky Workers' Compensation Hall of Fame dinner, Send payment and make Youto honor thoseare who have cordially made significant contributions toinvited Kentucky's Workers' checks out to the Compensation system during their distinguished careers. The dinner is being held Kentucky Workers' on Thursday June 24, 2021, in conjunction with the UK Workers' Compensation Semi- Compensation Hall of Fame, nar being hosted at the Campbell House in Lexington on June 24 and June 25. Cocktails 961 Chinoe Rd., begin immediately after Thursday's seminar session from 5:30 P.M. and dinner begins Lexington, KY 40502. at 6:30 P.M. Tickets for the dinner are $50.00 per person (cash bar). Seating is limited. For further information contact any of the Hall of Fame The Hall of Fame committee is pleased to announce the following list of inductees committee members which for the 2020 class: Larry M. Greathouse*, Gemma Harding*, Dr. Emery Lane*, Leland include Tim Wilson, Bonnie Monhollon*, Charlie Saladino*, Walter W. Turner*, Thomas L. Ferreri, James G. Fogle, Hoskins, McKinnley Morgan, Barbara Kilgus, Ann LeRoy, Dwight T. Lovan, Philip J. Reverman, Jr., Thomas M. Rhoads Denise Davidson, Peter Glauber and William O. Windchy. or Landon Overfield.

The Hall of Fame committee also announces the following list of inductees selected to the class of 2021: Wayne C. Daub, John W. Morgan, Jerry P. Rhoads, Dr. Russell L. Travis Make your reservations now as and Walter A. Ward. seating is limited. What a fitting way to honor those who have The Hall of Fame committee is seeking sponsors for Kentucky Workers' Compensation made significant contributions to $ $ $ Hall of Fame with sponsorship levels of 1500, 1000 and 500. All net proceeds will be the success of Kentucky's Workers' donated to Kid's Chance of Kentucky and all contributions are tax deductible as The Compensation system. Kentucky Workers' Hall of Fame is recognized by the Internal Revenue Service as a 501(c)(3) corporation. For more information regarding sponsorships contact Landon Overfield at [email protected] or 270-823-2670. *Denotes posthumous inductee

Lawyers with one mission: to advance yours.

Our Corporate Compliance & White Collar Criminal Defense attorneys provide unique experience and strategic counsel.

Taftlaw.com Robert K. McBride / (859) 547-4308 This is an advertisement. 44 | MAY/JUNE 2021 Mental Health Resources

We recognize that lawyers and judges are at risk for mental health difficulties at a rate far higher than the general population. We understand that good mental health and wellness is essential for the sustainability of lawyer wellbeing. We are committed to offering resources to you to help your mental health before you reach a crisis in your life and in your career.

A Mental Health Resource page has been created to provide a variety of resources to KBA members regarding mental health. More information is being added. Visit www.kybar.org/page/CLEMentalHealthResources to review the list of current resources.

You are not alone. Additional Resources Please call the National Suicide Prevention Lifeline at 800-273-8255, if KYLAP: you’re thinking about suicide, are worried about a friend or loved one, or www.kylap.org would like emotional support. The National Suicide Prevention Lifeline network is available 24/7 across the United States. National Institute of Mental Health: https://www.nimh.nih.gov/health/topics/ In addition, the Kentucky Lawyer Assistance Program (KYLAP), is suicide-prevention/index.shtml another resource that can help attorneys facing pressing issues and who are in need of support. Attorneys can call the KYLAP office on National Suicide Prevention Lifeline: our direct line (no operator required) at (502) 226-9373. Our telephone https://suicidepreventionlifeline.org/ is answered 24 hours a day, 7 days a week, 365 days a year through our confidential employee assistance service. Suicide Prevention Resource Center: https://www.sprc.org Also, our KYLAP Foundation is available to provide financial assistance https://www.sprc.org/states/kentucky for mental health treatment. We also publish numerous additional resources on our website, www.kylap.org, and we have over 100 lawyer volunteers who will offer CONFIDENTIAL assistance when called.

BENCH & BAR | 45 BAR NEWS

KENTUCKY BAR ASSOCIATION UNAUTHORIZED PRACTICE

ISSUED:OF LAW MARCH OPINION2021 U-66

QUESTION: Does a non-attorney, who is designated as an “advisor” within the meaning of 34 C.F.R. § 106.45, engage in the unauthorized practice of law when the non-attorney “advisor” engages in actions constituting the practice of law on behalf of a party to a proceeding covered by 34 C.F.R. § 106.45, when such actions are authorized by 34 C.F.R. § 106.45?

ANSWER: Qualified no.

REFERENCES: SCR 3.020; SCR 3.700; KBA U-34; 34 C.F.R. § 106.45; Sperry v. State of Fla. ex rel. Florida Bar, 373 U.S. 379 (1963); Penn. v. Wheeling & Belmont Bridge Co., 54 U.S. 518 (1851); Turner v. Ky. Bar Ass’n, 980 S.W.2d 560 (Ky. 1998); Ky. State Bar Ass’n v. Henry Vogt Machine Co., 416 S.W.2d 727 (Ky. 1967).

PROPOSED OPINION representation, counsel or advocacy in or out of court, rendered in The question has been raised as to whether a non-attorney, who respect to the rights, duties, obligations, liabilities, or business rela- is designated as an “advisor” within the meaning of 34 C.F.R. § tions of one requiring the services.” An individual who represents a 106.45, engages in the unauthorized practice of law when the party in a proceeding before a quasi-judicial body of an educational non-attorney “advisor”: (1) engages in actions constituting the institution, where the quasi-judicial body could recommend “serious practice of law on behalf of a party to a proceeding covered by 34 sanctions against the students, such as expulsion, suspension or C.F.R. § 106.45; and (2) when such actions are authorized by 34 something that goes to the person’s livelihood or property rights,” C.F.R. § 106.45. is engaged in the practice of law. Opinion KBA U-34 (opining that a non-attorney could not appear before a student grievance Existing authority supports the conclusion that the representation committee representing another student in proceedings before the of a party before a quasi-judicial body of an educational institution, student committee where committee functioned as quasi-judicial where the party faces a risk of serious sanctions, constitutes the body and could impose serious sanctions against student). practice of law under SCR 3.020 where the representation involves the rendition of legal knowledge or legal advice. The activities an Some of the tasks 34 C.F.R. § 106.45 authorizes an “advisor” repre- “advisor” may perform on behalf of a party in a proceeding covered senting a student in a Title IX proceeding to perform involve “legal by 34 C.F.R. § 106.45 include activities constituting the practice knowledge or legal advice . . . out of court, rendered in respect to the of law within the meaning of SCR 3.020. rights . . . [or] liabilities . . . of [the student] requiring the services.” See Ky. State Bar Ass’n v. Henry Vogt Machine Co., 416 S.W.2d 727 Based on the assumptions that the promulgation of 34 C.F.R. § (Ky. 1967) (enjoining non-lawyer from examining or cross-exam- 106.45 was a lawful exercise of the United States Department of ining witnesses before Unemployment Insurance Commission). Education’s authority under Title IX of the Education Amendments Opinion KBA U-34 (opining that non-lawyer could not appear of 1972, and on the assumption that 34 C.F.R. § 106.45 requires before university faculty grievance committee as a representative a covered institution to permit a party to designate a non-attorney of another individual involved in the grievance proceedings where as an advisor, we conclude that activities that 34 C.F.R. § 106.45 grievance committee was quasi-judicial body and non-lawyer would permits an “advisor” to perform are “authorized” by federal law, and be examining witnesses). See also Turner v. Ky. Bar Ass’n, 980 S.W.2d therefore, would not constitute the unauthorized practice of law 560, 564 (Ky. 1998) (“Legal representation by a lay person before when performed by a non-attorney. an adjudicatory tribunal, however informal, is not permitted by SCR 3.700, as such representation involves advocacy that would I. THE REPRESENTATION OF A STUDENT IN A constitute the practice of law.”). For example, 34 C.F.R. § 106.45(b) TITLE IX PROCEEDING BEFORE A QUASI-JUDI- (6) permits a party’s advisor to engage in cross-examination of wit- CIAL BODY OF AN EDUCATIONAL INSTITUTION nesses at a live hearing. Because the regulation applies to hearings CONSTITUTES THE PRACTICE OF LAW. involving the resolution of formal complaints of sexual harassment against a student, we would expect any potential sanctions to be SCR 3.020 defines the practice of law broadly as “any service sufficiently serious so as to consider the grievance process quasi-ju- rendered involving legal knowledge or legal advice, whether of dicial in nature. 34 C.F.R. § 106.45(a). Accordingly, an individual

46 | MAY/JUNE 2021 who renders legal advice or knowledge in connection with such covered by 34 C.F.R. §106.45 is entitled to have an “advisor” who a proceeding would be engaged in the practice of law within the is not admitted to the practice of law before the bar of any state or meaning of SCR 3.020. territory of the United States.

II. THE ACTIONS 34 C.F.R. § 106.45 AUTHORIZES Based upon these assumptions, we construe 34 C.F.R. § 106.45 A NON-ATTORNEY “ADVISOR” TO PERFORM to authorize an “advisor” (as that term is used in the regulation) to ON BEHALF OF A PARTY TO A PROCEEDING perform those actions the regulation permits an advisor to perform. COVERED BY THAT REGULATION ARE AUTHO- Under long-standing United States Supreme Court precedent: RIZED, ON THE ASSUMPTION THAT 34 C.F.R. § 106.45 (1) REPRESENTS A LAWFUL EXERCISE A State may not enforce licensing requirements which, OF THE UNITED STATES DEPARTMENT OF EDU- though valid in the absence of federal regulation, give ‘the CATION’S RULE-MAKING AUTHORITY UNDER State’s licensing board a virtual power of review over the TITLE IX, AND (2) REQUIRES AN EDUCATIONAL federal determination’ that a person or agency is qualified INSTITUTION TO PERMIT A PARTY TO DESIG- and entitled to perform certain functions, or which impose NATE A NON-ATTORNEY AS AN “ADVISOR.” upon the performance of activity sanctioned by federal license additional conditions not contemplated by Congress. For purposes of our opinion, we assume that 34 C.F.R. § 106.45 ‘No State law can hinder or obstruct the free use of license represents a lawful exercise of the Department of Education’s granted under an act of Congress.’ rulemaking authority. Sperry v. State of Fla. ex rel. Florida Bar, 373 U.S. 379, 385 (1963) 34 C.F.R. § 106.45(b)(2)(B) requires a covered educational institu- (quoting Penn. v. Wheeling & Belmont Bridge Co., 54 U.S. 518 tion to provide a “written notice” to parties to a grievance process (1851)). that informs them that “they may have an advisor of their choice, who may be, but is not required to be, an attorney . . . .” We assume, Accordingly, with the foregoing qualifications, it is our opinion for purposes of this opinion, that this language should be inter- that 34 C.F.R. § 106.45 provides a federal “license” to individuals preted to mean that a party to a grievance process proceeding designated as an “advisor” within the meaning of the regulation to perform the actions the regulation expressly identifies. An advisor performing actions that otherwise constitute the practice of law, but authorized by the regulation, would therefore not be engaged in the unautho- Talk to us about LEGAL MALPRACTICE rized practice of law. And learn why lawyers throughout Kentucky refer their legal Malpractice cases to William F. McMurry and Associates Building referral relationships based on confidence and trust. NOTE TO READER William F. McMurry is Board Certified This unauthorized practice opinion has been as a Legal Malpractice Trial Specialist formally adopted by the Board of Governors of By the American Board of Professional the Kentucky Bar Association under the provi- Liability Attorneys (ABPLA.org) sions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). Note that the Rule The ABPLA is accredited by the ABA provides in part: “Both informal and formal to certify specialist in the field of opinions shall be advisory only.” Legal Malpractice – SCR 3.130(7.40)

Email [email protected] Call 502-326-9000

William F. McMurry will personally handle each case while some services may be provided by others.

BENCH & BAR | 47 BAR NEWS JULY 2021 KENTUCKY BAR APPLICANTS Following is a list of applicants who have applied to take the July 27th & 28th, 2021 Kentucky Bar Examination. NOTE: This list is current as of May 14, 2021. Any applications filed after this date will not be included on this list.

Hayley Alaina Abbott James Wiley Craft III Jason Wayne Hall Joy Kleisinger Mark Taylor Abell Cara Nicole Crecelius Kelsea Denise Hall William Bryce Koon Abbey Kirsten Aldridge James Donald Culotta James Lincoln Hamilton II Jared Daniel Krueger Emily Alicia Marie Allen Mary Clare Dallas Ellen Elese Hancock Darren Craig Lamb Hishem Adel Alsalman Victoria Katelyn Davidson Kirstin Paige Handshoe Sydney Alexis Lane Carter Elizabeth Anderson Emily Sirena Davis Al'Lisha Jacqueline Denise Hanserd Leslie Erin Langley Cloe Margaret Anderson Allison Paige Dempsey Alexis Payne Hardesty Saria Nicole Woodyard Lattimore Lisa Andrews Brystin Nickole Denguessi Kwin Earl E. Harmon, Jr. Elizabeth Holbrook Lawrence Austin Alexander Apsley Morgan McKinney Denoers Christopher Michael Harrison Robert Miles Lee III Erica Ashley Ashton Rachel Helena Derting Sean Catherine Harrison Daniel Gregory Leffel Caroline Ahler Augenstein Laura Fayth Disney Shelby Marie Harville MacKenzie John Lenihan Neal Matthew Baker Zachary William Doninger Hunter Faith Hayes-Price Noah John Lewis Savannah Grace Baker Blake Dilynn Donithan Gregory Healey Siyu LI Howard Prewitt Ball James Tanner Duncan Caroline Thompson Herald Trevor Alexander Lind Jonathan Robert Barnes Amanda Marie Edelen James Tanner Hesterberg Emily Heeb Lineweaver Jonas Santos Bastien Christopher Wrenn Eller Alea Victoria Hipes William Christopher Little Ashley Brooke Baxter Dominick Devonne Ellis Alexandria Griffin Hisle Brian Anthony Lock Nathan Robert Bearden Meredith Anne Ellis Nolan Michael Hoenigess Zachary Douglas Losey Christopher Ryan Belknap Logan Edward English Samuel Brooks Hoffman Audrey Camille Lovell Christopher Logan Blue Mary Katherine Eschels Hayley Katherine Hofmann Timothy Joseph Lowe David Scott Borum Jacob Daniel Estes Kyle Blake Hollomon Brennan Joseph Lucas Darrian Dene' Botts Paige Elizabeth Ezell Jennifer Lynn Horan Samuel Christian Lukens Mona Jade Branham Bryant Gammon Fain McKenzie Rae Horn Fletcher Mabry Lyon Matthew Richard Broering Christian Shade Farmer Brent Monroe House Alexander David Mann Eli Carlson Bronn Paul Mitchel Fata, Jr. Christina Grace Howard Michael Hilton Mann Atia D. Brown Amanda Hope Ferrell Eliot Arnett Howington Colton Cheney Marino John Young Brown IV Mikella C. Fields Thaisa Howorth Kaelyn Sierra Martin Shad Michael Brown Shelbi Leigh Fields Brian Patrick Hudson Samuel Harrison Matthews Madeline Siebert Cain Tristan Finn Evelyn Hudson Seth Mattingly Bethany Lauren Calagione Thomas Hart Francke Charles Leslie Huffman Darian Tyler Mault Alexander Callahan Noah Andrew Frantz Nicholas James Hunt Sherry Maximoss Daniel Anthony Campayno Raegan Marie Freeman Alexander Barrett Hyman Nola Elizabeth McCall Emily Christine Canton Mark Charles Frey Sara Walker Ison Catherine Renee' McCloskey Bridget Gabrielle Cantrell Joseph Bradley Gabbard Nathaniel Jackson Brittany Renee McClure Manuel Dejesus Cardona Benjamin Seth Gadbois Jonah Charles James James McFarlane McClure Nicole Joanna Carman James Zachary Gadomski Dale Jameson Erica Ailene McCullough Jennifer Ann Carpenter Corey Gregory Gagnon Haley Nichole Johnson Paul Nicholas McCullum Olivia Marie Carrico Jameson Layton Gay Kristen Ann Johnson Madison Bailey McHargue Jake Russell Carter Blake Anthony Gerstner Shelbyann Johnson Cody Patrick McIlvoy Terry Alexander Carter Paige Elizabeth Goins Demitri Johnson-Cantu Anastasia Kaitlyn McKettrick Freya Ann Cartwright Maira Gomez Matthew Willard Johnston Wade Anthony McNabb Ana Patricia Cervera Jonah B. Gooch Jason M. Jones Chase Frederick McWhorter Patrick Andrew Chambers Ciara Marie Goodman Michael Monroe Justice Miles Sullivan Meehan Benjamin Gayle Church Daniel John Grabowski Mallory Elizabeth Kaehr Farris Rae Melton Henry Stephen Collier Clay James Michael Green, Jr. Melissa Katherine Kapsalis Candice Paige Messer Christina Elizabeth Collins Jason Bert Greene Lindsey Keiser Jerod Dearl Metz Kaylee Frances Collins Julie Jordan Greenlee Sylas Anderson Kern Kelly Margaret Meurer Terri Lynn Collins Peyton Holmes Porter Griffee Haley Mendez Kesner Conor Minogue Briana Rashae Conley Aaron Duncan Griffith Callie Ann Kidwell Leigh Anne Miracle John William Conway Kami E. Griffith Gary Michael Kilburn Monica Adriana Molestina McKenney Jewel Cornett John Gregory Gullett Morgan Taylor King Thomas Huston Monarch Zachary Thomas Courtney Elizabeth J. Hahn Payton Palmer Klatt Joshua David Moore 48 | MAY/JUNE 2021 Mary Elizabeth Morey Charles Bryant Redmond Madison Grace Snelling Logan Bryce Tucker Anora Marie Morton Cameron Leigh Rhoades Brigitte Sarah Sotto Sydney Caitlyn Tucker Taygan Matthew Mullins Jackson Aylette Rice Sarah Spalding Travis Turner Joshua Edmond Murray Natali B. Richter Rachael Specht Alexander Paul Valenti Cameron Fielding Myers Tanner Michael Riffe Austin Finley Sprinkles Shantelle Antonnette Valentine Raymond Michael Myers IV Adriana Lynn Roach Thomas Victor Staffieri Michael Allen Vance Zonya Myers Clarissa Rose Roberts Kerby Taylor Standifer Idalia Yamilet Ventura Natalie Marie Nassar Miranda B. Roberts Dalton Stanley Austin Tyler Vogsberger Jared Conner Niceley Cassandra Nicole Robinson Julia Ellen Stephens Kalynn Grace Walls Chester Irving Nielsen IV Aaron Robert Rodgers Ryan Gregory Stevens Cameron Aaron Warren John Henry Nienaber Hunter Erin Rommelman Carol Anne Stewart Matthew Way William Evan Nixon Leighton Kreg Romney Keaton T. Stewart Abby Jayde Weatherford John Yale Null Whitney Danielle Rowe Burt Anthony Stinson Amanda Webb Sumira Ohashi William Josiah Rupp Trevor Aden Stonecypher Mitchum Addison Whitaker Jordan Trey Olinger Ashley Kay Russell Louis Steven Strack Allison MacKenzie White Julie Michelle Pahler Yisrael Mordechai Safeek Kristi Mary Ronna Street Valerie Ann Whitlock Montanna Lee Palmer April Michelle Sain Clayton Andrew Stringer Oliver Perry Wilhite Daniel Lewis Parker Benjamin George Sandlin Esq. Lindsey Dawn Studebaker Elisher James Williams Sonam Patel Jordan Matthew Saner Scott James Stutts Lilian M. Williams Lucas McCoy Patrick Leah Theriot Scharff Daniel Meagher Sullivan, Jr. Patrick McClure Williams Jessica Deann Patton Jamie Lynn Scowcroft Laureen Natalie Tatman Phillip Malcolm Williams Sarah Morgan Pennington Richards Nikole Diane Seay Breyanna Taylor Jenny Beth Willis Christine Marie Pickett Lydia Valerie Shafik Lucas Henry Taylor Dayna Marie Wilson Meagan Elizabeth Pickett Laura Marie Shahan Chase Andrew Thomas Lauren Marie Wilson Timothy Edward Poole Brian Kenneth Sharp Addison Sutton Thompson Seth Christian Wiseman Victoria Alexandra Powell Michael Dalton Shelton Clay Edward Thornton Kennedy Peyton Womack Kassidy Breanne Price Jacob R. Sherman II Aubrey Renee Ticer Seth Adam Woods Kayleigh Morgan Profumo Johnathan Hunt Shewmaker Jordan Tillery Lindsey Yates Brent Michael Raines Scott Washington Shofner Margaret Morgan Tinker Michael Alexander Young Jason Scott Rainey John Christian Sida Logan Todd Nathaniel Young Ellen Christine Ray Samantha L. Smith Savannah Grace Tolle William Davis Razor Zachary Clayton Smith Christopher Eugene Tomlinson

Why MRC? Need an EXPERT? • Proven track record • 20 years experience working with hundreds of attorney clients We can HELP. • Access to top medical experts • Over 180 different specialties When you are looking for a medical • New experts added frequently expert Medical Review Consulting is an ideal strategic partner. Other Services: • Case Screening by an MD or RN We connect you with the top-rated, • Timelines or chronologies board-certified experts who are in clinical practice. Each potential TESTIMONIAL expert is carefully screened by an “Gina is the very best at what she does.” experienced Registered Nurse — Joe Bill Campbell, Past-President so that you know what to expect Kentucky Bar Association before you engage. “ ”

Gina I. Rogers, RN, BSN, LNCC NO RISK If we can’t find an expert, YOUR STRATEGIC PARTNER we refund 100% of your fee. (270) 726-3211 www.medicalreviewconsulting.com

BENCH & BAR | 49 KYLAP

50 | MAY/JUNE 2021 BENCH & BAR | 51 KENTUCKY BAR FOUNDATION

THE KENTUCKY BAR FOUNDATION VISITS ITS 2020 Grant Recipients Kentucky Bar Foundation Board Members recently completed site visits to organizations that received KBF grants in 2020. AppalReD and Holly Hill Child and Family Solutions are just two of the 2020 grantees that received site visits and the board members that completed those visits, Rachel Wagner Kennedy and Kelly Kirby Ridings, bring us up to speed on what they learned.

A Visit to Appalachian Research and Defense Fund of Kentucky, Inc (AppalReD) Empowering Victims of Eric C. Conn

here is hardly a soul in eastern Kentucky and beyond not aware Tof the Eric C. Conn “fiasco,” as it has been termed by some, as the unmatched volume of fraud perpetuated by Conn left thousands of former clients in the lurch upon his eventual arrest and impris- onment. Initially, SSA benefits were cut off immediately, but the chaos caused by such an action was eventually walked back with redetermination hearings to be held instead. However, litigation has continued through the present as to exactly how these hearings are to proceed. Specifically, the th6 Circuit recently remanded Hicks v. Commissioner of Social Security, 909 F.3d 786 (6th Cir. 2018), wherein it was held that before disregarding evidence during a redetermination the SSA must provide a factual basis for the reason to believe fraud was involved in providing evidence, and the claim- ants must be given an opportunity to rebut those assertions by the SSA. Presently, the SSA finds this holding is in variance with their reading of the applicable statues, so the manner in which evidence in redetermination hearings will be handled is still in limbo.

At the forefront in assisting former Conn clients is the Appala- chian Research and Defense Fund of Kentucky, more commonly known as AppalReD. Their mission is to provide high quality civil Foundation. Both should be available within the next one to three legal services in a manner that promotes equal access to justice, months once clarification is had concerning the presentation of encourages self-sufficiency, and empowers the lives of low-income evidence at redetermination hearings. The first will contain basic individuals in eastern and south-central Kentucky. Six offices cover information detailing the review process and any steps that need 37 counties where, per their website, an estimated 240,000 people to be taken by a claimant. The second video will be a mock hearing. live in poverty. However, as always, those interested in assisting with this daunt- ing task are encouraged to contact At this juncture, the first wave of Conn clients has been assisted, AppalReD to determine how best but this effort involved a nationwide pro bono effort involving to become involved. Their website is almost 140 attorneys. The second wave is anticipated to involve www.ardfky.org. approximately 1600 new clients. Obviously, AppalReD is unable to absorb that number of cases themselves, and there are fears the pro bono participation will be diminished due to the amount of time - RACHEL WAGNER KENNEDY that has passed since the inception of the legal quagmire. KBF Board Member 7th Supreme Court District For those individuals left to go it alone, AppalReD is preparing two videos for their website via a grant from the Kentucky Bar

52 | MAY/JUNE 2021 A Visit to Holly Hill Child & Family Solutions Supervised Visitation and Exchange Program

ne of the distinct pleasures of serving on the KBF Board is Ohaving the opportunity to conduct site visits to KBF grant recipients. Due to the recent COVID-19 pandemic, I conducted a virtual visit via Zoom with Holly Hill Child and Family Solutions located in Highland Heights, Kentucky. Holly Hill strengthens the lives of children through its programs and services focused on the visitation. The center also has a playroom, game room, play sets and child. Services offered by Holly Hill include supervised visitation, toys for the children and families to enjoy. Ms. Sanderson shared residential treatment, therapy services, and case management. the following story to highlight the program’s success:

The 2020 Kentucky Bar Foundation grant received by Holly Our Holly Hill Supervised Visitation Program was serving a Hill was used to increase their supervised visitation services. The young mother who had struggled with addiction while preg- supervised visitation center is a service providing opportunities for nant. Because she tested positive for drugs during the birth, non-residential parents or others to maintain contact with their her baby was removed from her care immediately. For the children in a safe, neutral setting. Parents are given safe access to past few months, this young mother has been driving from their children when unsupervised contact with the parent is not Maysville to our Highland Heights Office every Monday in the child’s best interest. The service helps to ensure the safety of and Wednesday to be here for visitation with her baby at children and parents, stabilize families during crises, reduce the risks 7:30am. Seeing her baby twice a week through our visitation of domestic violence, and promote healthy parent-child interaction. services provided her the motivation she needed to succeed. As a family law practitioner, I can attest how valuable this service is. She has now completed an Intensive Outpatient Program for substance abuse, completed her parenting classes and During my virtual visit, I met with Bobbie Sanderson Program successfully completed her case plan. The baby is now six Director for Supervised Visitation Center, and Diane Young, Senior months old and mom is now five months clean! She was Director for Holly Hill. Through the KBF grant, Holly Hill has just granted unsupervised weekend visitation with her baby. been able to expand their services by offering 57 hours per month of visitation services for 17-19 families. Ms. Sanderson is also com- As a KBF Board Member, it is heart- pleting new intakes each day. Supervision services are offered to warming to see how our grant recipients families on a sliding pay scale, with most families paying fifteen dol- are able to help families and children lars per visit. The KBF grant also helps cover the costs and expenses across the Commonwealth. associated with the program, including Ms. Sanderson’s salary. - KELLY KIRBY RIDINGS KBF Board Member The supervision center has private rooms that are monitored by rd employees, volunteers and interns, for the families to participate in 3 Supreme Court District

BENCH & BAR | 53 CONTINUING LEGAL EDUCATION

began bar governance work in the early I could be assured of meeting and having After six years with the Board, I had the ‘90s as a member of the Northern Ken- the opportunity to work with some of the good fortune of moving onto the officer Itucky Bar Association (NKBA) Board finest people and lawyers that the Com- track and ultimately served as president of of Directors, ultimately ascending to the monwealth of Kentucky has to offer, and, the KBA in 2005. And, along the way, as position of president. I was encouraged in he was, as usual, 100% correct. John J. O’Hara had so astutely advised, I my efforts of bar service by my late senior met and worked with some really wonder- partner, former Kenton County Common- I made the decision to take those steps nec- ful folks, from the KBA executive directors, wealth Attorney, Kentucky Supreme Court essary for KBA governance participation. to various presidents and officers of the Justice, and Kentucky Bar Association I was initially appointed to the Judicial KBA, members of the office of Bar Coun- (KBA) President, John J. O’Hara. Retirement Planning Committee ( JRPC), sel and various committees, as well as fellow thereafter I was a member of the IOLTA members of the Board of Governors. Judge O’Hara was a strong influence and Board, and then was elected to the KBA early supporter of my moving into bar ser- Board of Governors (Board). The work was time consuming, and some- vice with the KBA subsequent to my work times difficult, but worth every minute with the NKBA. One of his convincing of it. What does this brief history have points in encouraging my KBA work is that to do with Continuing Legal Education

54 | MAY/JUNE 2021 Jason F. Darnall, Chair Frank Hampton Moore III First District Representative Second District Representative [email protected] [email protected]

Graham C. Trimble Eric M. Weihe Third District Representative Fourth District Representative [email protected] [email protected]

LaToi D. Mayo David B. Sloan Interested in assisting with a CLE? Have ideas for a program? Contact Mary Beth Cutter, KBA Director Fifth District Representative Sixth District Representative for CLE at [email protected], or any member of the Continuing Legal Education Commission. [email protected] [email protected]

Leigh Gross Latherow Justice Laurance 2020-2021 CLE COMMISSION MEMBERS Seventh District B. VanMeter nd th From left to right: Frank Hampton Moore III, 2 Supreme Court District (SCD); Eric M. Weihe, 4 SCD; Representative Supreme Court Liaison th th Leigh Gross Latherow, 7 SCD; David B. Sloan, 6 SCD; Mary Beth Cutter, Director for CLE; [email protected] Graham C. Trimble, 3rd SCD; LaToi D. Mayo, 5th SCD; Terri Marksbury, CLE Staff; and Jason F. Darnall, chair, 1st SCD. Not pictured: Justice Laurance B. VanMeter, Supreme Court Liaison.

(CLE) and this writing for the section to by our talented and enthusiastic CLE of the Bench & Bar devoted to the CLE Director, Mary Beth Cutter, and her staff, Commission? When I was President of the and enjoys expert attention and meaning- KBA in 2005, one of my initiatives was to ful presentations on relevant topics which ABOUT THE establish the KBA Diversity in the Profes- concern diversity, equity, and inclusion in AUTHOR sion Committee. That effort had the good our profession. DAVID SLOAN is a fortune of experiencing significant success, partner with O'Hara, due to the efforts of KBA members, lead- So, my message here is, consistent with the Taylor, Sloan & ership and the judiciary, who recognized KBA Diversity in the Profession Commit- Cassidy. He earned the absolute need to address this issue in tee I established some 15 years ago, and its his B.A. from Berea our profession and the judicial system in evolution and positive input into our pro- College and his J.D. Kentucky. fession, addressing issues such as implicit from the Salmon P. bias, LGBT, gender equality, practitioners Chase College of That Diversity in the Profession Commit- with disabilities, and overall equity and Law at Northern Kentucky University. tee has evolved into the current Diversity, inclusion, I encourage our membership to Sloan concentrates his practice in the areas Equity, and Inclusion Committee of the get involved, and participate in governance of insurance defense litigation, particularly KBA, which exists and is active today, of your local bar associations and the KBA. in the area of insurance coverage issues, including attention to and being a part of Step up in support of the programs and criminal law, and workers compensation. and involvement with the KBA CLE plan- CLE opportunities available and add your He has served as president of the Northern ning and presentations. input and energies to all those. Because, it Kentucky Bar Association, as a member of is your KBA and you/we can continue to the Board of Governors and as past presi- At present, I am finishing my last year as make it better and enrich our diversity and dent of the Kentucky Bar Association. a member of the CLE Commission. My inclusion plan/efforts even further. Based term expires in June. I have witnessed the on my experience, and in my opinion, you attention to diversity and inclusion in our will not regret it. profession move positively in our judicial system since the beginning of our focus on Thanks for your time and the opportunity that part of our everyday life as practicing to serve. lawyers. It has also properly been attended

BENCH & BAR | 55 CONTINUING LEGAL EDUCATION CLE DEADLINE The deadline for completing the mandatory CLE requirement for both the 2020 and 2021 educational years is approaching! REGISTRATION 4 OF WHICH NOW OPEN! NEED TO BE In light of the ongoing COVID-19 ETHICS pandemic, the June 2021 New Lawyer 24 credits Program will be a virtual on-demand event that will begin on June 1, 2021. MUST BE New members who need to complete COMPLETED the mandatory New Lawyer Program BY June 30, 2021 will receive instructions regarding registration and attendance through th Credits timely earned by June 30 must be reported their email on file with the KBA. This th will be the only New Lawyer Program and entered into your record by August 10 . offered this year.

Additionally, if you are a newly KENTUCKY LAW UPDATEadmitted lawyer, and have NOT completed the mandatory Kentucky KENTUCKY LAW LawUPDATE Component of the Uniform Bar Exam, the 2021 New Lawyer Pro- KENTUCKYKENTUCKY LAW LAW UPDATE UPDATE gram will satisfy that requirement per SCR 2.017, for all attorneys who passed the October 2020 Kentucky Remote Examination, as well as attorneys applying for Admission by Transferred Uniform Bar Exam Score under SCR 2.090, or attorneys Advancing the Profession Through Education The 2021 Kentucky Law Update20 schedule and information21 will be released admitted under SCR 2.112 or SCR Advancing the Profession Through2.113. OnceEducation February 2021 Uni- in the June eNews.Advancing We look the forward 20Profession to seeing Throughyou at 21this 20year’s Education event. 21 form Bar Exam results are released, AdvancingFor questions theor concerns, 20Profession please contact Through KBA21 Program Education Coordinator successful 2021 bar applicants can Ema Haines, [email protected]. register for the New Lawyer Program through May 26, 2021.

Pursuant to SCR 3.640, the New Lawyer Program is a required pro- LOOKING gram that must be completed by all attorneys within 12 months of FOR UPCOMING being sworn-in to the Kentucky Bar Association. There is no charge for KBA ACCREDITED attorneys attending this program to CLE EVENTS? fulfill this requirement. If you have any questions or www.kybar.org/ need further clarification, please Look no further...Check out contact Sonja Blckburn at accreditedcleevents [email protected].

56 | MAY/JUNE 2021 Submitting CLE Credits Online 1 VISIT www.kybar.org SELECT CLE 2

SIGN IN TO YOUR 3 Member CLE Portal

SELECT Submit New Credits CLE CREDITS 4 Submit New Credits

CLICK ON THE Program BOX AND TYPE IN THE Activity Number. 5 Wait for the system to locate the program and for the field to populate. CLICK ON THE BOX TO SELECT THAT PROGRAM.

CLICK Next. 6

CLICK “Total CLE” AND ENTER THE AMOUNT OF CREDITS EARNED. 7 REPEAT FOR “Ethics” TO ENTER THE ETHICS CREDITS EARNED.

TYPE YOUR name as your certification AND signature. 8

9 CLICK Next.

YOUR CREDIT HAS NOW BEEN ADDED AND WILL APPEAR ON YOUR TRANSCRIPT. 10

BENCH & BAR | 57 IN MEMORIAM

DENNIS SHERMAN RISCH, 67, passed away from COVID-19. Dennis was a Fort Thomas native who loved nothing more than his family, s a final tribute, the Bench & Bar publishes brief memorials recognizing including his wife of 40 years, Holly, and his AKBA members in good standing as space permits and at the discretion of three daughters. He graduated from Cumber- the editors. Please submit either written information or a copy of an obituary land College and Northern Kentucky University that has been published in a newspaper. Submissions may be edited for space. Salmon P. Chase School of Law, and was a Memorials should be sent to [email protected]. committed, passionate, and die-hard fan of Uni- versity of Kentucky basketball. He loved going to concerts, drinking bourbon, golfing, cooking, NAME CITY STATE DATE DECEASED and gardening and working on the old Victorian Franklin B. Beck Erlanger KY May 17, 2020 home he and Holly lived in for 36 years. He Michael Dean Bowling Middlesboro KY February 20, 2021 loved filling the house with friends, showing his love through good food and time together. Estelle G. Cohen Louisville KY November 24, 2019 He was a loyal, kind and committed attorney. Thomas J. Corum Palm Coast FL May 24, 2018 Robert E. Fleming Louisville KY January 22, 2021 The preceding memoriam for Dennis Risch is based upon information obtained from Spring Fred E. Fugazzi Jr. Lexington KY March 10, 2021 Grove. To access the obituary in its entirety, Gregory Boyd Hill Beaver Dam KY November 19, 2020 visit: https://www.springgrove.org/obituary/ Charles D. Johnstone Frankfort KY January 12, 2021 dennis-sherman-risch/. Norman W. Lawson Jr. Lawrenceburg KY February 17, 2019 MARK DONALD WINTERSHEIMER Gregory Wayne McDowell Florence KY January 19, 2021 , 58, passed away from natural causes at his residence. He Muncie Louis McNamara Bardstown KY March 7, 2021 was the son of Alice Rabe Wintersheimer and Richard Cornelius Roberts Paducah KY March 25, 2021 Ret. Kentucky Supreme Court Justice Donald Andrew Martin Stephens Lexington KY March 12, 2021 Wintersheimer, who passed himself one month after his son. Mark was a graduate of Covington John Frith Stewart Crestwood KY February 17, 2021 Latin High School, where he was a Pontifical Charles S. Tucker Middletown KY March 6, 2020 Altar Server for the Bishop. He graduated Mark Donald Wintersheimer Covington KY January 18, 2021 from Thomas More College and obtained his JD from the Northern Kentucky University Justice Donald C. Wintersheimer Covington KY February 18, 2021 Salmon P. Chase College of Law in 1985. Mark was licensed to practice law in both Kentucky and Ohio and began his career as an Assistant GREGORY W. MCDOWELL Attorney General in Frankfort, Ky. He later , 57, passed away on January 19, 2021. Greg was first and became an Assistant Kenton County Attorney foremost, a family man. He enjoyed spending time with his wife and children outside, and started his own law practice in the North- being on the baseball diamond, boating on Norris Lake, traveling, and countless other ern Kentucky area. He was a computer expert, outdoor adventures. His hobbies included officiating high school basketball, coaching who performed consulting work for many small little league baseball, cheering on his UK Wildcats, and golfing with family and friends. businesses. After attending the University of Kentucky J. David Rosenberg College of Law, he became a fixture in the Northern Kentucky Legal Community providing pro bono legal The preceding memoriam for Mark Winter- services to many organizations. Greg is survived by his wife, Shannon, and six children. sheimer is based upon information obtained from Legacy.com. To access the obituary in The preceding memoriam for Gregory McDowell is based upon information obtained from its entirety, visit: https://www.legacy.com/ Legacy.com To access the obituary in its entirety, visit: https://www.legacy.com/obituaries/ obituaries/nky/obituary.aspx?n=mark-winter- nky/obituary.aspx?n=gregory-mcdowell&pid=197574054. sheimer&pid=197566480&fhid=31156.

58 | MAY/JUNE 2021 WHO, WHAT, WHEN & WHERE

Have an item for Who, What, When & Where? The Bench & Bar welcomes brief announcements about member placements, pro- motions, 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. Please make checks payable to the Kentucky Bar Association.

Jennifer L. Brinkley, assistant professor of Legal Studies at the University of West Flor- ida, has recently been cited in a Supreme Court of Appeals of West Virginia court opinion. The Stoll Keenon Ogden PLLC (SKO) is pleased Court cited her law review article published in to announce that the Board of Directors of the 2019 South Carolina Law Review titled, the Legal Services Corporation has appointed “Opioid Crisis and the Law: An Examination firm member Palmer Gene (“Gene”) Vance II of Efforts Made in Kentucky.” The court opinion to the Leaders Council of the Legal Services reiterates the importance of medication-assisted treatment (MAT) Corporation (LSC), the single largest funder of as a tool in fighting opioid use disorder, as discussed in the arti- civil legal aid for low-income Americans in the cle. Brinkley has two law articles forthcoming this spring in the country. The LSC was established by Congress Northern Illinois University Law Review and the Kentucky Law in 1974 and promotes equal access to justice and provides grants Journal. She is a graduate of the University of Kentucky J. David to legal aid organizations. Vance practices in Stoll Keenon Ogden’s Rosenberg College of Law. Lexington office and has been with the firm since 1995. A member of the firm’s Board of Directors, he is a member of the business liti- Cary Howard joins McBrayer PLLC, as gen- gation practice group, as well as the tort, trial and insurance services eral counsel and ethics counsel. He joins from practice group, and the intellectual property practice group. Vance Kinkead & Stilz with a background in legal maintains an active trial and dispute resolution practice focusing ethics and professional responsibility, as well on business and commercial litigation, products liability litigation, as estate planning and administration, business toxic tort litigation, copyright and intellectual property litigation, law and commercial real estate. Besides his role trucking and transportation litigation, and insurance coverage lit- as general counsel, he will be advising the firm igation. He serves as chair of the firm’s Pro Bono Committee. on legal ethics, professional responsibility and compliance issues. He is a graduate of the University of Kentucky J. TheZoppoth Law Firm is pleased to announce David Rosenberg College of Law and a graduate of the University that J. Tyler Stocking has joined the firm as of Kentucky. an associate attorney. He will be a member of the firm’s employment law group, where Stites & Harbison, PLLC, is pleased to he will focus his practice on Kentucky Civil announce that attorney Chad McTighe has Rights Act violations, wrongful terminations, been appointed chair of the firm’s business lit- wage and hour violations, and the negotiation igation service group. McTighe is a member of severance agreements. A Louisville native, (partner) of Stites & Harbison in the Louisville Stocking graduated from Union University, summa cum laude, in office. He previously served three years as the 2016. He earned his J.D., magna cum laude, from the University of Louisville office leader of the business litigation Louisville Louis D. Brandeis School of Law. While in law school, service group and is currently a member of the Stocking served as managing editor for Volume 58 of the University louisville office recruiting committee. McTighe regularly advises of Louisville Law Review, and he was published in the American and represents clients in a wide range of business and commercial University Health Law & Policy Brief as well as the Richmond litigation matters, including extensive practice in class action liti- Journal of Law & Technology. gation, shareholder and membership disputes, real estate litigation, data breaches and fiduciary duty litigation. He represents clients

BENCH & BAR | 59 WHO, WHAT, WHEN & WHERE

in various industries, including telecommunications, oil and gas, tax liens, insurance, financial institutions, health care and many The Southeast Kentucky Chamber of Com- others. Outside of the firm, McTighe stays active in a variety of merce presented John Rosenberg with the Lon community organizations. He regularly participates in numerous B. and Evelyn Rogers Lifetime Achievement volunteer activities, including serving on the board of directors of Award at their 2020 annual meeting. the Kentucky Derby Festival Foundation, previously working with the American Cancer Society Relay for Life and serving as a pro bono attorney representing victims of domestic violence.

Graydon is proud to announce that one of their Ed Monarch joins McBrayer PLLC as a attorneys has been selected for the Leadership member after practicing as a trial lawyer for Council on Legal Diversity (LCLD) 2021 27 years. His main focus has been defending Fellows program. Roula Allouch, co-chair healthcare providers and healthcare businesses of Graydon’s Diversity, Equity, and Inclusion in litigation. He also has experience with Committee, was named a member of the 2021 employment law and estate litigation. Mon- class of Fellows, participating in a landmark arch is a graduate of the University of Louisville program created by LCLD to identify, train, Louis D. Brandeis School of Law and a graduate of the University and advance the next generation of leaders in the legal profes- of Kentucky and is licensed in Kentucky and Indiana. sion. Allouch is one of 418 new Fellows, a group of talented and diverse, mid-career attorneys who have been selected by 293 LCLD Stoll Keenon Ogden PLLC (SKO) is pleased to announce that member corporations and law firms to participate in this career seven of its attorneys have been promoted to members of the firm development program. after previously serving as associates. These associates include Kathryn Beck, Will Cartwright, Kaitlyn George, Chad Hardin, DBL Law has added three attorneys to its grow- Lindsey Howard, Emily Mattingly, and Amy Miles. Beck is an ing firm:Madison Gamble, Olivia Oney and associate in the tust & estate litigation practice, but also plays an Brad Steffen. Gamble is an attorney in DBL important part of the business litigation, business torts, trust & Law’s Louisville office, practicing primarily in estate, and trial & insurance services groups. She earned her J.D. the firm’s civil litigation and banking groups. at the University of Kentucky’s J. David Rosenberg College of She received her J.D., cum laude, from the Uni- Law, where she served as the president of the Health Law Society. versity of Louisville Louis D. Brandeis School Cartwright is an associate of the firm’s business services group. His of Law. During law school, she interned with practice is focused on mergers and acquisitions, corporate finance Republic Bank & Trust Company’s in-house and lending, and real estate. He earned his J.D. at the University of counsel and for Federal District Court Judge Kentucky’s J. David Rosenberg College of Law, where he served as Rebecca Grady Jennings. She completed her the Vice President of the Equine Law Society. George is an associ- undergraduate studies at the University of Ken- ate in the firm’s corporate finance & lending, business services and tucky, summa cum laude, where she majored in real estate practice groups. She provides counsel to clients within agricultural economics and business. Oney is an the commercial real estate and financial services industry.Hardin attorney in DBL Law’s Louisville office, prac- is an associate that practices with the business litigation and torts, ticing civil litigation. She received her J.D. from and trial & insurance services groups. He has made oral arguments the University of Kentucky J. David Rosenberg before the Kentucky Court of Appeals and has counseled clients College of Law. Oney completed externships in both trial and appellate cases. Howard is an associate in four of with the University of Kentucky Legal Clinic, the firm’s practice groups – business litigation, business torts, tort, the United States Attorney’s Office for the Dis- trial & insurance, and environmental litigation - concentrating trict of Columbia in Washington, D.C., and mainly on business and commercial disputes. She has particular the United States Attorney’s Office for the expertise in matters of corporate governance, contract and fraud Eastern District of Kentucky. Prior to attend- claims, insurance defense, complex commercial litigation, fiduciary ing law school, she graduated from Morehead obligations and environmental law. Mattingly is an associate in the State University with a bachelor’s degree in legal studies. Steffen is business litigation practice group. She represents a wide range of an attorney in DBL Law’s Northern Kentucky office and focuses companies, from locally owned businesses to Fortune 500 corpo- his practice on civil litigation, employment and labor, and white rations. She also acts as in-house counsel to businesses providing collar criminal defense. Prior to joining DBL Law, he served in the guidance on the review of contracts, master service agreements, real military as an officer in the United States Air Force JAG Corps for estate leases and other legal documentation. Miles is an associate in almost five years. During his time in the Air Force, he served as the labor, employment & employee benefits practice. She represents both a prosecutor and defense attorney. He holds a J.D. from the a variety of national, regional and local employers, from franchised Salmon P. Chase College of Law at Northern Kentucky University, auto dealerships to health care organizations. where he graduated cum laude.

60 | MAY/JUNE 2021 Carl Frazier-Sparks has been named to the in Louisville for Judge Boyce F. Martin, Jr., on the U.S. Court of 2021 class of the Leadership Council on Legal Appeals for the Sixth Circuit and then practiced at the Appala- Diversity Fellows. The program identifies, chian Citizens’ Law Center before relocating to Tennessee. She is trains, and advances the next generation of a graduate of Western Kentucky University and Yale Law School. leaders in the legal profession. The Leadership Council on Legal Diversity consists of corpo- rate chief legal officers and law firm managing ELPO Law partner Regina Jackson has been partners who are personally committed to cre- announced as the 2022 board of directors’ chair- ating a more diverse and inclusive legal profession. Frazier-Sparks elect on the Leadership Kentucky executive is senior counsel at Walmart Inc. where he manages class action committee. and complex commercial litigation. Prior to going in-house, he was a partner at Stoll Keenon Ogden PLLC in Lexington practicing in all areas of civil litigation. Frazier-Sparks earned his B.A. from Transylvania University and J.D. from the University of Kentucky Robert M. (Rob) Duncan, Jr., has joined J. David Rosenberg College of Law, where he was editor-in-chief Dinsmore & Shohl LLP’s Lexington office of the Kentucky Law Journal. as a partner in the firm’s commercial litigation group. Duncan focuses his practice on complex Amanda Moore and her law partner, Amy commercial litigation and government inves- Farrar, have formed the Tennessee Center for tigations. Prior to joining Dinsmore, Duncan Estate & Elder Law, PLLC, in Murfreesboro, served as the United States Attorney for the Tenn. The center assists seniors and their fam- Eastern District of Kentucky from November 2017 to January ilies as they navigate important decisions about 2021. As the chief federal law enforcement officer for the District, estate planning and end of life care. Moore and Duncan led an office responsible for the prosecution of criminal Farrar continue to represent clients in transac- cases, enforcement of affirmative civil actions, and representation tional real estate, business law, and civil appeals under the umbrella of the federal government’s interests in civil litigation and appellate of Farrar | Moore Law. Moore began her law practice clerking matters. Prior to his appointment, Duncan worked as an Assistant United States Attorney in Lexington for nearly 13 years, prosecuting a wide variety of criminal cases including those involv- ing years-long investigations of significant criminal enterprises, fraud, firearms offenses, and violent crime. Early in his legal career, Duncan was a judicial law clerk for Senior U.S. District Judge Henry R. Wilhoit, Jr., in Ashland. Duncan graduated from the University of Kentucky J. David Rosenberg College of Law in 2003 and Centre College in 2000.

Stoll Keenon Ogden PLLC (SKO) is pleased to welcome a new asso- ciate attorney, Felisa Moore, to their Lex- ington office. Moore is a member of the bankruptcy & financial restructuring and business litigation practice groups. Prior to becoming part of the SKO team, Moore engaged in private law practice focused in bankruptcy, debtor/creditor relations, and other civil litigation matters. She has also served as a judicial law Clerk to the Honor- able David L. Bunning, U.S. District Court for the Eastern District of Kentucky, and as a judicial extern to the Honorable Tracey N.

BENCH & BAR | 61 WHO, WHAT, WHEN & WHERE

Wise, chief judge of the U.S. Bankruptcy Court for the Eastern Elizabeth Panduro joins McBrayer PLLC District of Kentucky. After earning her bachelor’s degree from the after years of practicing law in both Kentucky University of Kentucky, Moore earned her J.D. at the University of and Florida. Her practice focuses on estate Kentucky J. David Rosenberg College of Law, where she was also planning, administration and litigation. She is elected to the Order of the Coif. During law school, she served as a graduate of the University of Louisville Louis senior staff editor of the Kentucky Law Journal. D. Brandeis School of Law and a graduate of the University of Kentucky, where she studied Court Appointed Special Advocates (CASA) psychology. of South Central Kentucky, an agency that pro- vides trained citizen volunteers to advocate for William E. Johnson, Joseph P. Bowman and W. Eric Branco abused and neglected children in the family are pleased to announce the formation of their law firm,Johnson court systems throughout the region, recently Bowman Branco, LLP in Frankfort. Focal areas include general announced that five new board of directors civil practice, business transactions, contract law, corporate law, have joined their team including Kyle Roby personal injury, environmental law, real estate, zoning and land of ELPO Law. use, health law, insurance law, administrative law, civil and criminal litigation and appeals. Their attorneys are admitted to practice in Frost Brown Todd (FBT) named two new members-in-charge in both the federal and state court jurisdictions of Kentucky as well its Lexington and Washington, D.C., offices. The firm promoted as before any local governmental agency or administrative tribunal. Jonathan Miller from the head of the Lexington office to lead FBT’s new Washington, D.C., office. Jan de Beer will take over for Miller in the Lexington office. De Beer focuses his practice on international regulation and trade. Miller heads up the firm’s hemp industry team and is a principal of CivicPoint, FBT’s government affairs subsidiary.

Addison Lowry joins McBrayer PLLC as an associate from the Louisville Metro Public Defender’s office. Her practice area is general litigation with a focus on insurance defense. DBL Law has announced the hiring of part- She is a graduate of the University of Louis- ner Tony Bickel and promotion of DBL Law ville Louis D. Brandeis School of Law and a attorney Katie Tranter to partner in the firm’s graduate of the University of Kentucky. downtown Cincinnati office. Bickel’s practice involves a broad range of transactional matters, Minnillo & Jenkins Co., LPA, a Cincinnati-based law firm with including commercial finance, corporate law, offices in Southern Ohio and Northern Kentucky, announces a mergers and acquisitions, and leasing and real name change to Minnillo Law Group Co., LPA. Partners licensed estate acquisitions. He is admitted to practice to practice in Kentucky include Paul J. Minnillo, James D. Ludwig, law in Ohio and Kentucky. He holds a J.D., and Andrew L. Ruben. Minnillo Law Group is a diversified law magna cum laude, from the University of Cin- firm with eight lawyers handling a wide variety of legal matters cinnati College of Law. He obtained a Bachelor including personal injury, civil and criminal litigation, business of Science degree, cum laude, from the Univer- transactions, labor and employment law, consumer class actions, sity of Kentucky. Tranter is a DBL Law partner, estate administration, and bankruptcy law. practicing in the areas of employment law and civil litigation. In this role, Katie represents ELPO Law partner Park Priest worked with employers in all facets of employment law, and fellow colleagues of the Meritas legal asso- has experience guiding clients through issues ciation on a new guide to help navigate the that arise in the workplace. She is admitted to practice law in Ken- cannabis industry legal landscape. The Meritas tucky and Ohio. She holds a J.D., cum laude, from the University US & Canada Cannabis Guide, a compre- of Cincinnati College of Law. During law school, She served as hensive overview of national, local, and tribal an associate member of the Law Review. She holds a bachelor’s laws affecting the cannabis, hemp, and CBD in business management degree, cum laude, from Boston College. industries, will help companies navigate this high-potential but risky business.

62 | MAY/JUNE 2021 B&B MARKETPLACE

BENCH & BAR MARKETPLACEMARKETPLACE INFORMATION REQUESTED Information Requested: Attorneys who may have assisted Eugene Rice, September 30, 1935-December 19, 2020, Covington, Ky., with estate planning and drafting of a will are asked to contact Rice’s only daughter, Precious Davis-Owens at (678) 778-3627 or email her at [email protected].

SERVICES OFFERED Environmental law Ronald R.Van Stockum, Jr. LET THIS · 502-568-6838 · [email protected] SPACE

THIS IS AN ADVERTISEMENT. WORK FOR FOR LEASE Office Space for Lease • +/-75 - 838 USF Lexington downtown office suites available • Located across from 5/3 Pavilion, and one block from Fayette Court buildings • Individual offices available with shared reception, YOUYOU conference and break rooms CALL (502) 564-3795 • Suite 601 and 602A are four-room offices with access FOR INFORMATION directly on elevator lobby • Full-service lease with utilities, janitorial and AND PLACEMENT internet access included • Leasing by NAI Isaac - Contact John Miller DEADLINE FOR THE at 859.224.2000 Scan QR code for more details SEPTEMBER 2021 ISSUE IS AUGUST 1, 2021

The KBA appreciates the support of our advertisers, but the publication of any advertisement does not constitute an endorsement by the Kentucky Bar Association.

BENCH & BAR | 63 B&B MARKETPLACE

Handwriting Expert Steven A. Slyter With forty-five years experience in KY courts I have now semi-retired to central Florida. I am continuing to accept cases requiring signature or handwriting examination. phone: 502-479-9200 email: [email protected] www. saslyter.com

64 | MAY/JUNE 2021