Volume 75 Number 2 March 2011

kentucky bar association 2011 convention

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www.niai.com • Phone: 502 425-3232 • [email protected] This issue of the Kentucky Bar Association’s Bench & Bar was CONTENTS published in the month of March. Communications & Publications Committee Arbitration Frances E. Catron, Chair, Frankfort Paul Alley, Florence Elizabeth M. Bass, Lexington 8 Why Statutes of Limitations Are Sandra A. Bolin, Berea Not Applicable in Kentucky Arbitrations Michael A. Breen, Bowling Green Christopher S. Burnside, Louisville By Charles C. Mihalek and Steven M. McCauley David C. Condon, Owensboro Ashlee D. Coomer, Petersburg 14 Why Kentucky’s Statutes of Limitations Should Apply James P. Dady, Bellevue to Claims Raised in Arbitration Alexander F. Edmondson, Covington Judith D. Fischer, Louisville By Janet P. Jakubowicz and J. Curtis McCubbin Cathy W. Franck, Crestwood P. Franklin Heaberlin, Prestonsburg 19 The Scope of the Power of Courts to Sheryl E. Heeter, Newport Judith B. Hoge, Louisville Enforce Agreements to Arbitrate in Kentucky Edna M. Lowery, Frankfort By Walter L. Sales Christopher T. McDavid, Louisville Theodore T. Myre, Jr., Louisville Eileen M. O’Brien, Lexington 24 Is a Broad Arbitration Clause Still Effective Brian K. Pack, Glasgow after Granite Rock? Richard M. Rawdon, Jr., Georgetown E.P. Barlow Ropp, Glasgow By Richard H.C. Clay and Stephen J. Mattingly R. Kelley Rosenbaum, Lexington Candace J. Smith, Covington 28 Lincoln 202 Jeffrey R. Soukup, Lexington E. Frederick Straub, Jr., Paducah By Donald K. Kazee Gerald R. Toner, Louisville Sadhna True, Lexington Katherine Kerns Vesely, Louisville Michele M. Whittington, Frankfort Columns Publisher John D. Meyers 3 President’s Page By D. Scott Furkin Editor Frances E. Catron 5 YLS By Nathan Billings Managing Editor 36 Shop Talk By Michael Losavio Shannon H. Roberts Layout David Kaplan • [email protected] The Bench & Bar (ISSN-1521-6497) is Items of Interest published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 4 2011 Kentucky Bar Association’s Annual Convention Spotlight KY 40601-1812. Periodicals Postage paid at Frankfort, KY and additional mailing offices. 32 Judicial Conduct Commission All manuscripts for publication should be sent to the Managing Editor. Permission is 34 The Bench & Bar Thanks Del O’Roark granted for reproduction with credit. Publication of any article or statement is not 34 2011 Student Writing Competition Call for Entries to be deemed an endorsement of the views 35 Kentucky Bar Foundation/IOLTA Thank You to Directors and Trustees expressed therein by the Kentucky Bar Association. 39 Amendment and Deletion to the Regulations of the Subscription Price: $20 per year. Members Attorneys’ Advertising Commission subscription is included in annual dues and is not less than 50% of the lowest subscription 40 Kentucky Bar News price paid by subscribers. For more informa- tion, call 502-564-3795. 44 Law Day 2011 Information POSTMASTER 44 Notice of Mandatory Electronic Filing of Sealed Documents Send address changes to: 46 Who, What, When & Where Bench & Bar 514 West Main Street 56 CLE Frankfort, KY 40601-1812 Cover created by Ben Swartz. Kentucky Bar Association’s 2011 Annual Convention Logo designed by IDA Branding. LostLost in in the the shuffle? shuffle?

SetSet yourselfyourself apartapart fromfrom thethe othersothers byby advertisingadvertising inin thethe KentuckyKentucky LegalLegal Directory.Directory. AmongAmong allall thethe legallegal directoriesdirectories onon thethe market,market, thethe BlueBlue BookBookstandsstands out,out, trulytruly thethe mostmost useruser friendlyfriendly handhand heldheld devicedevice onon youryour bookshelf.bookshelf. StandStand out out for for a a change! change! **SmallerSmaller sizesize && distinctivedistinctive blueblue covercover makemake ourour bookbook instantlyinstantly recognizablerecognizable **EachEach volumevolume coverscovers aa singlesingle state,state, andand isis soldsold individually.individually. PurchasePurchase onlyonly thethe onesones thatthat youyou needneed.. **BiographicalBiographical listingslistings appearappear inin single-columnsingle-column pagepage format,format, withwith largerlarger typetype toto makemake themthem easiereasier toto read.read. **ColorColor codedcoded pagespages andand tabtab dividersdividers makemake itit easiereasier toto movemove betweenbetween sectionssections

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LOUISVILLE BAR’S PROGRAM TEACHES STUDENTS ABOUT LAW, COURTS

Editor’s Note: At the invitation of KBA President Bruce K. Davis, this issue’s “President’s Page” is authored by D. Scott Furkin, executive director of the Louisville Bar Association (LBA), who discusses the LBA “Law Day in School” program for middle school students in Jefferson County Public Schools. In the September 2010 issue of the Bench & Bar, Mr. Davis encouraged readers to share their stories of quality volunteer programs aimed at increasing civic education in Kentucky schools. We thank Mr. Furkin for providing information regarding this successful effort.

By D. Scott Furkin branch plays in administering justice educator and are periodically reviewed and safeguarding our liberties. Many to make sure they are accurate and n the September 2010 issue of Bench know little more about lawyers and timely. They include lesson plans I& Bar, KBA President Bruce K. judges than the unrealistic depictions designed to give students an Davis lamented that civic education has presented in television shows and appreciation for the rule of law, all but disappeared from most public commercials. individual rights and the protections school curricula. Indeed, courses in To help fill this critical knowledge afforded to all citizens by the U.S. government, political science and gap, for more than a decade the Constitution. Students are also citizenship have taken a back seat to Louisville Bar Association has conducted challenged to take seriously their those in English, math and science as “Law Day in School” in which volunteer responsibilities as future voters, jurors, teachers struggle to boost students’ attorneys teach middle school students litigants or perhaps even lawyers. scores on standardized proficiency tests about the court system, the legal Teachers have consistently praised that are the barometer of modern profession and the Bill of Rights, among the quality of the instruction which educational success. other topics. To date, LBA members incorporates handouts, video clips and As a result, an entire generation of have visited more than 500 classrooms in interactive exercises into attorney-led U.S. citizens is coming of age without the Jefferson County Public Schools. presentations. One teacher wrote that even a basic understanding that our state Three dozen additional visits will take “(t)his has been a great jumping-off and federal governments are divided place during the current school year. point that has continued into wonderful into three coequal branches, each with Spearheaded by an attorney who is a class discussions and other learning separate and independent powers and former teacher, “Law Day in School” is activities.” As a leader of several areas of responsibility. Sadly, an a program of the LBA’s Public Service classes, I can personally attest to the increasing number of Kentuckians fail Committee. Curriculum materials were students’ enthusiastic response. to grasp the important role the judicial developed by a professional legal The LBA is proud to contribute to the civic education of students in Jefferson County. We are happy to share our The Louisville Bar Association’s “Law Day in School” program offers curriculum materials with attorneys curriculum materials and lesson plans geared to middle school students on the wishing to institute the “Law Day in following topics: School” program in other Kentucky counties. How Courts Work – Educates students about the functions of state and federal courts and the role of judges in the justice system D. Scott What Lawyers Do – Educates students about the role of lawyers in the Furkin, a 1982 justice system and what it takes to become a lawyer graduate of the University of Students and the Bill of Rights – Educates students about the U.S. Louisville Louis Constitution and application of the Bill of Rights to their daily lives D. Brandeis School of Law, is For more information, contact Cindy Robinson, LBA Public Service Director, at an attorney and (502) 583-5314 or [email protected]. executive director of the Louisville Bar Association.

March 2011 Bench & Bar 3 constitutional and statutory issues as PLAN NOW ON ATTENDING THE 2011 well as tort reform litigation. Professor Turley has KBA ANNUAL CONVENTION! served as counsel in some of the most notable cases in the last two decades, representing whistleblowers, military personnel, and Jonathan Turley a wide range of other clients. He has also served as counsel in a variety of national security cases, as well as a consultant on homeland security and constitutional issues. On Friday, the convention’s closing day, the KBA is pleased to present Erin ark your calendars to join the Mindy Barfield and CLE Program Brockovich, a consumer advocate whose MKentucky Bar Association for its Committee Chair Anne Chesnut, three work to uncover the poisoning of the 2011 Annual Convention at the excellent featured speakers have been water supply in a small California town Lexington Convention Center, secured for the 2011 convention. The became the subject of the 2000 film Wednesday, June 15, through Friday, KBA is excited to announce that “Erin Brockovich” starring Julia Roberts. June 17! With a convention theme of Jennifer Thompson and Ronald Cotton, While organizing papers as a file “Pursuing Justice in the 21st Century,” two of the authors from The New York clerk in a California we’ll take a look back at legal issues of Times Best Seller Picking Cotton: Our law firm, Brockovich relevance during the first decade of the Memoir of Justice and Redemption, will discovered medical new millennium, and a look ahead to share their inspiring story on the records that led to an new, emerging topics through a wide convention’s opening day. investigation of Pacific variety of CLE programming of According to the book’s website, “ ... Gas & Electric, a interest to practitioners across the Jennifer and Ronald offer an utility accused of Commonwealth. unprecedented first-person glimpse into leaking toxic what happens when the system fails Chromium 6 into the Erin Brockovich Under the direction of KBA both the victim and the accused. Paced groundwater. In 1997, as a result of a Convention Planning Committee Chair like the most riveting of thrillers and lawsuit spear-headed by Brockovich packed with page-turning twists and and the late attorney Ed Masry on turns, this unforgettable book challenges behalf of more than 600 Hinkley, Calif., our ideas of memory and judgment residents, the utility giant paid a $333 while demonstrating the profound million settlement. The lawsuit was nature of human grace and the healing dramatized in the 2000 film "Erin power of forgiveness.” For more Brockovich," which earned Julia information on the authors and their Roberts an Academy Award as Best publication, visit Actress for her portrayal of Brockovich. www.pickingcottonbook.com. Since that time, Brockovich has used On Thursday, June 16, the KBA her notoriety to spread positive Convention will feature Jonathan messages of personal empowerment Turley, a nationally recognized legal and to encourage others to stand up and scholar whose articles appear regularly make a difference. As president of in publications such as The New York Brockovich Research & Consulting, she Times, The Washington Post, USA is currently involved in numerous Today, and The Wall Street Journal. environmental projects worldwide. Turley also appears often on all of the Please make plans now to attend the major television networks, including 2011 KBA Annual Convention for what such shows as “Meet The Press,” “ABC promises to be an extraordinary and This Week,” “Face The Nation,” and educational convention. Registration “Fox Sunday.” He is also a frequent information will be available in early witness before the U.S. House of April at the KBA website, Ronald Cotton and Jennifer Thompson Representatives and Senate on www.kybar.org.

4 Bench & Bar March 2011 and in what format the finished product delegate. This article addresses this should be. some of these barriers. Unfortunately, as leaders, we far too Despite situations like the one By Nathan Billings, often assign projects the same way. In described above, effective delegation Chair, KBA Young Lawyers Section the daily machinations of practicing a can be learned. In order to effectively case or in our community involvement, delegate, you must have an objective Delegation - we forget that we acquire a vast amount grasp of your own abilities, respon- of knowledge about matters, and that sibilities and communication skills, and “We accomplish all that we do through others in our organizations do not what can and cannot be delegated to delegation — either to time or to other possess the same amount of others. people.” – Steven Covey information. As a result, we We all know that our daily tasks ineffectively “delegate” tasks to others. accumulate quickly. It is critical that we Partner: Jim, I know it is 3 p.m. The costs for such poor delegation prioritize those tasks that we must do Friday afternoon, but I need a memo include: low morale, burnout, and those that can be delegated to on the discoverability of an unacceptable work product, duplicative others. Thus, the first step to effective attorney’s communications with an work and rework, misallocation of delegation is spending time daily to expert in the Smith case. personal and personnel resources, prioritize our tasks. Creating two lists frustration, anxiety, increased client can be incredibly useful: a running list Associate: Sir, I have not done any bills, lower profitability, damage to for all tasks, and a second for tasks that work on that case before. Is that the firm/organization image, and damage to must get done that day. Spend five medical malpractice case? firm/organizational health. minutes of your day (either the first or Although defined in a variety of last five minutes at the office) updating Partner: No. You know, the Smith ways, at its core, delegation is the your lists. (I prefer the end of the day, case is the one about construction practice of turning over work-related so that when I come in the office the defect in the slab. Oh, and I need it tasks and/or authority to employees or next day, my focus for the day is by 9 a.m. on Monday. You can find subordinates, and it is one of the already established.) Your “daily” task the file on Mary’s desk. I think the hardest skills for a leader to master. list should identify 5-10 items in order other side’s motion is in it. Thanks. Reasons for poor delegation include: of importance. Anything that must be [Partner leaves] “not enough time,” lack of trust in accomplished that day should be at the subordinates, unwillingness to top. As you draft your lists, candidly ask [Monday morning meeting, after surrender control or authority to others, yourself: “Is this something that I must Partner reviews the memo] inability to recognize the value or do, or can someone else adequately necessity of delegation, poor accomplish some or all of this task?” Partner: I wanted a brief on this communication skills, or lack of As you complete items, mark them issue! And, why does it not refer to understanding how to effectively off. Rarely, however, do we complete the actual communications between our expert and the client? They were in the file – didn’t you read them? YLS SEEKS VOLUNTEERS FOR “U@18” PROGRAM Oh, and I talked to the other side on During late April and the month of contracts, crime and Friday evening, and we don’t have to of May, attorney volunteers will punishment, voting and jury file this until Wednesday – when can make one-hour presentations in service. you get me a new draft? high school classrooms An easy to use lesson plan is across the Commonwealth, provided for the volunteer Many of us have been on the providing students timely, relevant presenters in order to enhance the receiving end of a “delegation” like information on reaching the age of classroom experience for student this in the past. A partner, senior majority in Kentucky. Topics participants. One hour of CLE credit attorney, committee chair, or manager covered include employment law, is available for attorney presenters. assigns a project to us with little marriage and divorce, buying and For more information, contact Mary explanation of the context of the driving a vehicle, money and Ann Miranda at (859) 333-2613 or assignment, exactly what is expected, credit, formation and enforcement [email protected]. what the actual objective or goal is,

March 2011 Bench & Bar 5 everything on our “daily” list. As articulate the task and its objective to attainability of a task depends highly on lawyers with unwavering faith in our yourself, how can a subordinate be your objective assessment of tasks on own abilities, we frequently believe that reasonably expected to understand what your list, as noted above.) “we” are the only person who can he or she is being asked to do? One The task must be REALISTIC: “properly” complete a task. framework for defining and delegating Related to a task’s attainability, a task Consequently, if, over a period of tasks is the SMART criteria: must represent an objective toward several days, a task remains on your The task must be SPECIFIC: Like which the employee is both able and “daily” list, you should reassess whether legal writing, be clear and concise. While willing to work. Sure, an associate could someone else can perform that task. You we are (or should be) very clear in our stay all weekend to work on that memo, will often find that while it appeared communications with clients, other but is it realistic to expect that? While you “had” to complete the task initially, counsel and the courts, we often fail to something may be “attainable,” it does the process of triaging other projects use the same communication skills in our not mean it’s realistic to expect its provides further clarity that someone firms and organizations. To this end, a accomplishment within the parameters else can adequately perform it. Then, specific task has a much greater chance given. A task is probably realistic if the identify who can “adequately of being accomplished to your desire employee truly believes that it can be accomplish some or all of the task.” than a general task. Answering the “W” accomplished. Thus, by this point, you have: (1) questions (who, what, when, where, The task must be TIME-ORIENTED: created daily and overall tasks lists, which, and why) can help clarify the Finally, all tasks must have a time (2) prioritized your own tasks, task. In the example above, the partner component. Without a time frame, there (3) identified a task to be delegated, and asked for a general task (a memo), when, is no sense of urgency. (4) identified the individual(s) to whom in reality, he wanted something specific A key aspect of leadership is you are going to delegate. (a brief to file in response to another delegation. Unless you to learn to Next, (5) schedule adequate time to party’s motion). delegate effectively, your firms and assign and discuss the task with the The task must be MEASUREABLE: organizations will be inefficient and individual. Because of other pressing You must establish concrete criteria for demoralized. Thankfully, delegation is a matters, there may be an inclination to measuring progress. By measuring skill that can be learned. By (1) creating sell this step short. Think about how progress, you ensure the individuals daily and overall tasks lists, much time will be required, and stay on track, meet deadlines, etc. (2) prioritizing your own tasks, schedule it with the individual. There is Answer questions such as: How long? (3) identifying those tasks that can be an inverse proportion between the time What issues? How will I know when it delegated, (4) identifying the invested in delegation of a task at the is accomplished? individual(s) to whom you are going to frontend and the overall time it takes to The task must be ATTAINABLE: If it delegate, (5) scheduling adequate time accomplish the task. In other words, a is going to take four months to plan a to assign and discuss the task with the few extra minutes at the outset leads to charity event, don’t start four weeks individual, and (6) clearly defining the exponential gains overall. before the planned date. Similarly, if task, identifying what must be achieved, Before meeting with the individual, reviewing documents as part of discovery and communicating the task to others, you will need to (6) clearly define the should take a week, don’t wait until you you will enhance your own leadership task and identify what must be only have two days left to review them to skills, and better serve your clients, your achieved. If you are unable to clearly delegate the task. (Obviously, the firm and your community.

Call for Nominations for 2010-2011 YLS Awards Each year the Young Lawyers Section Outstanding Young Lawyer for his/her discussing why the nominee is deserving (YLS) of the Kentucky Bar Association civic activities, legal accomplishments of the Outstanding Young Lawyer Award. recognizes certain individuals for various and community involvement. Who is The nominating letters should include an awards. In addition to the annual considered a Young Lawyer? Any overview of factors such as, but not Outstanding Young Lawyer Award and the Kentucky lawyer who is 40 years of age limited to, civic activities, legal Nathaniel R. Harper Award, for 2010- or under or any Kentucky lawyer who accomplishments and community 2011, YLS has added two (2) new awards: has practiced law 10 years or less involvement. Nomination forms can be the Service to Young Lawyers Award and regardless of age. found at www.kbayls.com. the Young Lawyer Service to Community If you know of a young lawyer who Enclosure letters and completed Award. A description of each award and a exemplifies these outstanding character applications can be mailed together and call for nominations for each follows: traits and activities who you would like must be received no later than Friday, to nominate, please submit a brief cover April 1, 2011. They can be mailed to 1. Outstanding Young Lawyer Award letter (no more than one page, single- Rebekkah Rechter, YLS Chair-Elect, at Annually, the YLS selects an spaced) and a completed application 700 West Jefferson Street, Suite 1000,

6 Bench & Bar March 2011 Louisville, Kentucky 40202, or emailed be presented during the KBA service is(are) varied, longstanding, and/or as an attachment to Membership Luncheon on Friday, June fills a unique niche. When a candidate has [email protected]. On 17, during the KBA Annual Convention engaged in pro bono representation, April 4, YLS will forward all completed in Lexington, June 15-17. If you have any consideration will be given to both the applications to the panel of judges who questions, please contact Adrienne amount of time the lawyer has contributed will select the 2011 Outstanding Young Godfrey Thakur at [email protected] and the complexity of the representations Lawyer (OYL) Award. or (859) 253-1320. completed. The OYL Award will be presented If you know of a young lawyer who during the YLS Annual Luncheon 3. Service to Young Lawyers Award has engaged in exemplary service to his scheduled for Thursday, June 16, during New for 2010-2011, the Service to or her community, please submit a the KBA Annual Convention planned for Young Lawyers Award will be presented nomination letter (no more than three June 15-17 in Lexington. If you have any to a lawyer, non-lawyer, or organization pages, single-spaced) discussing why the questions, please contact Rebekkah for exceptional contributions to the nominee is deserving of the Young Rechter at RebekkahRechter@ professional and personal advancement Lawyer Service to Community Award. kycourts.net or (502) 235-0137. and mentorship of young lawyers. This Please include a description of at least the award seeks to recognize those senior following: 2. Nathaniel R. Harper Award lawyers, organizations, and others who All Civic Activities, including the The Nathaniel R. Harper Award is a consistently work to promote, mentor, name, business address, and business trailblazer award that seeks to recognize and advance young lawyers. telephone for all civic organizations in those individuals or entities who have If you know of a lawyer, non-lawyer, which the candidate has been a member demonstrated a commitment to changing or organization who has made while a Kentucky Young Lawyer; any the face of the bar in Kentucky by exceptional contributions to the specific offices or leadership positions promoting full and equal participation in professional and personal advancement the candidate has held within the the legal profession through the and mentorship of young lawyers, please organization; all the projects, programs, encouragement and inclusion of women, submit a nomination letter (no more than or activities organized or chaired for each minorities, persons with disabilities, three pages, single-spaced) discussing of the organizations listed above members of the lesbian, gay, bisexual and why the nominee is deserving of the (including dates); and the nominee’s transgendered community and/or other Service to Young Lawyers Award. most significant contribution in the area underrepresented groups. Nomination letters must be received of civic activity; The Award is named after Nathaniel R. no later than Friday, April 1, 2011, and All Community Activities, including Harper, one of the first two African can be mailed to Nathan Billings, YLS what leadership positions or projects the Americans to be admitted to practice law Chair, Billings Law Firm, PLLC, 219 candidate has participated in his or her in Kentucky. Because African Americans North Upper Street, Suite 200, Lexington, community; and were excluded from law schools in the KY 40507, or sent as an email attachment Pro Bono representation, including a Commonwealth at the time of Harper’s to [email protected]. This award description of the amount of time the admission, he established the Harper Law recipient will then be selected by the YLS lawyer has contributed and the School in his law office, where he trained Executive Committee during its quarterly complexity of the representations and helped produce several African meeting in April 2011. completed. American lawyers. It is Harper’s The Service to Young Lawyer Award Nomination letters must be received pioneering spirit and sense of will be presented during the YLS Annual no later than Friday, April 1, 2011, and responsibility to pave the way for others Luncheon scheduled for Thursday, June can be mailed to Nathan Billings, YLS that the award seeks to honor. 16, during the KBA Annual Convention Chair, Billings Law Firm, PLLC, 219 Nomination forms can be found at planned for June 15-17 in Lexington. If North Upper Street, Suite 200, Lexington, www.kbayls.com. you have any questions, please contact KY 40507, or sent as an email attachment Completed applications must be Nathan Billings at [email protected] to [email protected]. On April 4, YLS received no later than Friday, April 1, or (859) 225-5240. will forward all completed applications to 2011, and can be mailed to Adrienne the panel of judges who will select the Godfrey Thakur, Chair of YLS Diversity 4. Young Lawyer Service to recipient(s). Committee, Henry Watz Gardner & Community Award The Young Lawyer Service to Sellars, PLLC, 401 W. Main Street, Suite Also new for 2010-2011, the Young Community Award will be presented 314, Lexington, KY 40507, or sent as an Lawyer Service to Community Award will during the YLS Annual Luncheon email attachment to be presented to a Young Lawyers Section scheduled for Thursday, June 16, during [email protected]. On April 4, YLS member(s) for exemplary service to his or the KBA Annual Convention planned for will forward all completed applications to her community through volunteerism, June 15-17 in Lexington. If you have any the Diversity Committee who will select service to non-profit organizations, and/or questions, please contact Nathan Billings the recipient(s). pro bono legal representation. Preference at [email protected] or (859) 225- The Nathaniel A. Harper Award will will be given to individual(s) whose 5240.

March 2011 Bench & Bar 7 ARBITRATION

A civil or criminal judicial pro- ceeding… ‘An action has been defined to be an ordinary proceed- ing in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.5

By contrast, an arbitration is not an “action” as it is not a proceeding in a court of justice, nor does it involve the By Charles C. Mihalek licensed attorneys or judges; only busi- filing of a complaint in a court. Black’s and Steven M. McCauley nessmen or women. Law Dictionary defines “arbitration” as Since arbitration does not create “a method of dispute resolution involv- Introduction jurisprudence or precedent and its ing one or more neutral third parties here has been a proliferation of results are not reasoned, the consumer who are usually agreed to by the disput- arbitration in the United States in has no idea what to expect or why he ing parties and whose decision is T the past 20 years. This rapid received a particular arbitration result. binding.”6 The device of arbitration has increase was caused by a sudden And due to the nebulous mixture of been specifically recognized by the change in the law which took place in facts, law, argument, common sense and Kentucky Constitution since 1799.7 1987.1 This was not a legislative numbers involved in arbitration, the Kentucky, as well as a majority of other change but a judicial one. Most of this respondents often successfully defend states, has adopted the Uniform Arbitra- increase occurred primarily in the con- on the grounds that the claim is time- tion Act, codified as KRS 417.045 et sumer vs. industry segment. The barred because of an “applicable” seq., which requires arbitration of any industries which favor mandatory pre- statute of limitations. This article will controversy arising between parties to a dispute arbitration include the securities examine the viability of statute of limi- written arbitration agreement or an arbi- industry, residential construction indus- tations defenses in arbitration. tration provision in a written contract.8 try, credit card industry, internet Kentucky law generally favors the software industry, and cable television Statutes of Limitations Are Only enforcement of arbitration agreements.9 industry, among many others. Some of Applicable to “Actions” in Kentucky Statutes of limitations as set out these industries, like the securities The statute in Kentucky prescribing under KRS Chapter 413 et seq., by the industry, have established their own the maximum time periods during statute’s own terms, clearly apply only arbitration forums, and as such they which certain actions can be brought or to an “action,” which is a “judicial pro- maintain and administer the rules gov- rights can be enforced is codified under ceeding.” An arbitration is neither an erning the resolution of disputes, as KRS 413 et seq. KRS 413.250 (setting “action” nor a “judicial proceeding,” but well as the recruitment, training and out when an action commences) pro- a non-judicial, out-of-court proceeding compensation of arbitrators.2 vides in part that an action “shall be which makes an action or judicial pro- Arbitration started out in this country, deemed to commence on the date of ceeding unnecessary. and in the various industries mentioned the first summons or process issued in While “court” may generally be above, as an expeditious alternative to good faith from a court having jurisdic- understood to be limited to tribunals of court for businesses and gentlemen of tion of the cause of action.” Kentucky the judicial branch of government, KRS similar sophistication and bargaining Rules of Civil Procedure CR 3.01 addi- Chapter 413.270(2) (setting out the power to resolve disputes in private.3 tionally states that a civil action “is application of limitations to administra- There is a certain gentility to individuals commenced by the filing of a com- tive agencies) expands the definition of not filing suit in open court, but rather plaint with the court and the issuance “court,”10 providing in part: filing a claim before a private forum of a summons or warning order thereon using privately developed rules to in good faith.” Accordingly, the 1) If an action is commenced in due achieve a full, unappealable and final “action” contemplated by the statutes time and in good faith in any court resolution. What is even better, these of limitations involves judicial pro- of this state and the defendants or individuals and businesses are not ceedings.4 any of them make defense, and it is required to use licensed attorneys. The Furthermore, Black’s Law Dictionary adjudged that the court had no arbitrators thus do not have to be defines “action” to include: jurisdiction of the action, the plain-

8 Bench & Bar March 2011 tiff or his representative may, lows that statutes of limitations do not within which “actions” may be brought, within 90 days from the time of apply to arbitrations in Kentucky. Arbi- leaving private contractual dispute reso- that judgment, commence a new trators misapply Kentucky law when lutions out of the picture. action in the proper court. The they take statutes of limitations into The issue of the inapplicability of time between the commencement consideration in determining their bind- statutes of limitations to arbitrations is of the first and last action shall not ing decision. addressed thoroughly in NCR Corp. v. be counted in applying any statute Although unable to locate a Ken- CBS Liquor Control, in which an arbi- of limitation. tucky arbitration award or decision trator’s refusal to apply a statute of which dismissed a claim because of limitations was found not to be mani- 2) As used in this section, “court” statutes of limitations considerations, fest disregard of the law.14 During the means all courts, commissions and and which was subsequently vacated by arbitration underlying that case, NCR boards which are judicial or quasi- a reviewing Kentucky court, we believe Corp. argued that the claims against it judicial tribunals authorized by the that such vacatur is a logical extension were barred by a number of statutes of constitution or statutes of the Com- of prevailing Kentucky precedent. limitations. The arbitrator refused to monwealth of Kentucky or of the apply those statutes of limitation and United States of America. (empha- Other Jurisdictions and the awarded damages to CBS Liquor Con- sis added)11 Applicability of Statutes of trol. NCR Corp. then petitioned to Limitation to Arbitrations vacate the award, claiming that the The court in Commonwealth, Nat- Most states have held that an arbitra- arbitrator’s refusal to apply the statute ural Resources and Environmental tion proceeding is not an “action” and of limitations was manifest disregard of Protection Cabinet v. Kentucky Ins. that, as a result, limitations on “actions” the law. The U.S. District Court dis- Guaranty Association addressed this do not apply to arbitration.13 Many, agreed, stating that “the effect of a expanded definition in the context of including Kentucky, have civil codes statute of limitations is to bar an action administrative hearings and distin- that define “action” in a way that clearly at law, not arbitration.”15 guished the quasi-judicial powers of the does not include arbitration proceed- The District Court went on to point Cabinet, explaining that the Cabinet’s ings, and the correlative statutes of out that, if NCR had allowed the claims hearing officers are quasi-judicial limitations specifically limit the time against it to remain in court, rather than because they make findings of fact which are binding upon appeal to the circuit and appellate courts unless not supported by substantial evidence, and are granted authority by statute to impose fines, revoke permits and order the forfeiture of performance bonds.12 Arbitrators, by contrast, are not granted such quasi-judicial powers, nor can arbitration proceedings be con- strued as “courts, commissions or boards which are judicial or quasi- judicial tribunals.” Arbitration is a private, voluntary proceeding for the resolution of disputes. Furthermore, it is a substitute for a judicial proceeding in court. Even applying the expanded definition of “court” as defined by KRS 413.270(2), an arbitration pro- ceeding is not a proceeding in court, but rather a voluntary out-of-court pro- ceeding held for the sole purpose of resolving a commercial contractual dispute by commercial experts chosen by the adverse parties. As an arbitration proceeding is not an “action,” and as Kentucky statutes, civil procedure and case law clearly indicate that statutes of limitations only apply to an “action,” it therefore fol-

March 2011 Bench & Bar 9 forcing them into arbitration, it might bring suit on the following actions not There is no doubt that NCR and well have defended successfully on later than four years after the day the Acme could have lawfully incorpo- statute of limitations grounds. The NCR cause of action accrues…”20 Under rated into the 1982 Agreement court recognized the critical difference Texas law, bringing suit and initiating either an express limitation on between statutes of limitations that arbitration have been viewed as separate claims or incorporated a statute of extinguish claims, on the one hand, and and distinct concepts for 150 years. The limitations by reference, but they those which place time limits on the fil- Texas Supreme Court stated in 1855: did not do so.17 ing of actions, stating: The words court and suit have a In Massachusetts the court in Car- If the statutes of limitations on distinct meaning, and suggest a penter v. Pomerantz held the statute of which NCR relies were the sort very different idea from arbitrators limitations on actions for breach of con- that purport to extinguish claims, and arbitration. These words have tract to be inapplicable to demands for rather than limit actions in court, been understood and construed in arbitration.18 The court pointed out that they might be relevant, but they do the connection in which they are the statute limited the time for com- not purport to be statutes of that used to mean either the District mencement of actions and stated that sort. Rather, on their face they Court or that of a justice of the “[a]s used in statutes of limitation, the 21 limit the bringing of actions.16 peace, as the case may be. word “action” has been consistently construed to pertain to court proceed- The statutes of limitation in NCR ings.”19 It is commonly accepted black-letter were limitations on actions in court In Texas, the fact that state statutes of law that “suit” connotes “any proceed- rather than on the underlying claims, limitations do not apply to arbitration ing by a party or parties against another and were thus not an applicable proceedings is demonstrated in the use in a court of law.”22 Arbitration does not defense in an arbitration proceeding. of the word “suit.” For example, the take place within the state’s established The NCR court furthermore went on to statute providing for the four-year limi- judicial system, nor do traditional rules hold: tations period reads, “[a] person must of civil procedure apply to arbitration proceedings. In California, the statute of limita- Landex Research Inc. tions reads slightly differently, and rather than using the word “suit,” pro- PROBATE RESEARCH vides that “[t]he periods prescribed for the commencement of actions… are as follows.”23 “Actions,” as defined under the California C.C.P. are “an ordinary proceeding in a court of justice…”24 Clearly, the California statute of limita- tions, like Texas and Kentucky’s statutes of limitations, only governs the admin- istration of justice by the courts, and the statutes are, by their own terms, inappli- Missing and Unknown Heirs cable to arbitration.25 The Connecticut court in Skidmore, Located Owings & Merrill v. Connecticut Gen- with No Expense to the Estate eral Life Ins. Co. concluded that the plaintiff was not entitled to a judgment declaring that a six-year statute of limita- Domestic and International Service for: tions relating to a breach of contract Courts barred the defendant from proceeding Lawyers with arbitration of a dispute arising under Trust Officers a contract between the parties, even Administrators/Executors though the contract contained an arbitra- tion clause, and held that the demand for Two North La Salle Street, Chicago, Illinois 60602 arbitration by the defendant was not the Telephone: 312-726-6778 Fax: 312-726-6990 bringing of an action within the bar of 26 Toll-free: 800-844-6778 any statute of limitations. Noting that www.landexresearch.com most statutes of limitations in their essential features were enacted long

10 Bench & Bar March 2011 before the present methods of pleading “action” have restricted it to the prose- thereof.”36 The court stated that “in the and practice were adopted, and that such cution in a court of justice of some absence of a clear statement to the con- limitation periods were designed to apply demand or assertion of right of one per- trary by the Washington Legislature, we to the various actions known to the com- son against another, the court stated that thus read the statutory language and our mon law, the court pointed out that it thus appeared that the six-year statute own precedent to conclude that arbitra- arbitration is not a common-law action, of limitations, both by statutory defini- tion is not an ‘action’ subject to state but rather an arrangement for taking and tion and by common law, was intended statutes of limitations in these circum- abiding by the judgment of selected per- to be confined to judicial proceedings.31 stances.”37 sons in some disputed matter, instead of Rejecting the plaintiff’s argument that Even a FINRA Arbitration Panel in seeking relief in the established tribunals arbitration should be held to be an California concluded that statutes of lim- of justice.27 action subject to the six-year statute of itations are inapplicable to FINRA The court in Lewiston Firefighters limitations by implication, since prior to arbitration proceedings, stating as much Association v. City of Lewiston held that legislative enactment of the Uniform in the Arbitration Award they rendered.38 arbitration is not an action at law, and Arbitration Act in 1957 no controversy The survey of cases provided above thus that the six-year statute of limita- could be arbitrated unless specific per- is a small sampling of a large body of tions was not an automatic bar to a formance of the arbitration agreement case law.39 There are numerous other claim for back-pay by a firefighters’ could be judicially compelled, the court cases through a wide range of jurisdic- association under the terms of a collec- pointed out that such an argument was tions which have likewise held that tive bargaining agreement containing contradictory to the historic objective, statutes of limitations are inapplicable to arbitration procedures.28 purpose and intent of the Uniform Act, arbitrations because arbitrations are not Affirming a decree dismissing the which was to encourage voluntary, actions.40 Arbitrators, whether in Ken- city’s bill in equity for injunctive relief speedy, inexpensive, private and final tucky or one of these other jurisdictions, restraining arbitration proceedings that out-of-court arbitration of commercial must follow established legal precedent concerned claims by a construction contractual disputes by commercial and hold statutes of limitations inappli- company against the city, the court in experts.32 cable in the forum of arbitration. Worchester v. Park Construction Co. In Cameron v. Griffith, the defen- held that even though the contract dants argued that their contract for Conclusion between the parties provided for arbitra- corporate stock was governed by the Kentucky, like the majority of juris- tion, the statute of limitations had no four-year statute of limitations provided dictions, has interpreted its statutes, civil application where the demand for arbi- for in G.S. 25-2-725 and the arbitration procedures and case law to determine tration was seasonably made by the was not authorized since the claim was that statutes of limitations are only appli- construction company under the terms barred by that statute.33 The North Car- cable to “actions” which are judicial or of the contract.29 olina Court of Appeals held that the quasi-judicial proceedings. As an arbitra- The court in Har-Mar v. Thorsen & question as to whether the four-year tion is a voluntary and private Thorshov reversed a judgment for the statute of limitations was applicable was out-of-court proceeding, which serves as plaintiff which sought to enjoin an arbi- irrelevant and chose not to make a a substitute for judicial proceedings, it tration proceeding regarding a fee determination on such, holding instead: therefore falls outside the scope and dispute demanded by the defendant reach of statutes of limitations that under a contract between the parties [F]or by its terms the limitations would otherwise be applicable if the par- providing for arbitration of disputes at period stated in G.S. 25-2-725 ties had chosen to resolve their dispute the choice of either party. The Har-Mar applies only to an “action,” which in court. Unless otherwise specified by court held that in view of the special is a “judicial proceeding,” G.S.25- the agreement entered into by the par- nature of arbitration proceedings and the 1-201(1); and an arbitration is ties, or by express statutory language statutory and common-law meaning of neither an “action” nor a “judicial which defines an “action” to include the term “action,” the six-year statute of proceeding,” but a non-judicial, arbitration, the only applicable limita- limitations was not intended to bar arbi- out-of-court proceeding which tions period in a securities arbitration is tration of the defendant’s fee dispute makes an action or judicial pro- the six-year eligibility rule set forth in solely because such claim would be ceeding unnecessary.34 FINRA Rules 12206(a) and 13206(a) barred if asserted in an action in court.30 and NYSE Rule 603, both of which are Noting that by statute the term “action” generally incorporated by reference into in the sense of a judicial proceeding In Broom et. al. v. Morgan Stanley broker-dealer customer agreements with includes recoupment, counterclaim, Dean Witter, Inc. et. al.,35 the Washing- arbitration clauses. Arbitrators who take setoff, suit in equity, and any other pro- ton Supreme Court vacated an statutes of limitations into consideration ceedings in which rights are to be arbitration award because the FINRA when rendering their decision are misap- determined, and also noting that few (formerly known as the NASD) Arbi- plying the established legal precedent Minnesota cases which have attempted tration Panel had applied “an erroneous that statutes of limitations are inapplica- a common-law definition of the term rule of law or mistaken application ble to arbitrations.

March 2011 Bench & Bar 11 The authors would like to acknowl- States sent unresolved issues of the claimant’s claim solely edge the assistance of Nathan Paul Isaac regarding debts and boundaries to because such claim would be barred in the research and preparation of this arbitration. if asserted in an action in court); article. 4. Metts v. City of Frankfort, Ky. Lewiston Firefighters Association v. App., 665 S.W.2d 318 (1984); see City of Lewiston, 354 A.2d 154 (Me. also, Whittaker v. Smith, Ky., 998 1976) (arbitration is not an action at ENDNOTES S.W.2d 476 (1999). law, and the statute is not, therefore, 1. The landmark case of Shearson / 5. Black’s Law Dictionary 32 (9th Ed. an automatic bar to the Firefighters’ American Express, Inc. v. McMa- 2009) (citation omitted) (emphasis recovery); Son Shipping v. Defosse hon, 482 U.S. 220 (1987), added). & Tanghe, 199 F.2d 687 (2nd Cir. established arbitration as the vehi- 6. Black’s law Dictionary 119 (9th Ed. 1952) (arbitration is not within the cle for securities investors and 2009) (citation omitted). Earlier term “suit” as used in the statute of brokerage customers to arbitrate editions of Black’s Law Dictionary limitations, and is instead the per- their statutory fraud claims and also defined “arbitration as “an formance of a contract providing for other disputes with the brokerage arrangement for taking and abiding the resolution of controversy with- industry pursuant to pre-dispute by the judgment of selected persons out suit); SCM Corp. v. Fisher Park arbitration agreements. Before that in some disputed matter, instead of Lane, 358 N.E.2d 1024 (1973) case, arbitration was for the most carrying it to established tribunals (arbitrators have the power to fash- part confined to member to mem- of justice, and is intended to avoid ber disputes within a particular the formalities, the delay, the Charles C. industry or trade organization. expense and vexation of ordinary Mihalek is the In 1974, the U.S. Supreme Court litigation.” founding mem- decided Scherk v. Alberto Culver 7. See Fite & Warmath Construction ber of Charles Co., 417 U.S. 506 (1974), holding Co. v. MYS Corp., Ky., 559 S.W.2d C. Mihalek, that parties could agree to arbitrate 729 (1977). The Kentucky Consti- P.S.C., which he federal securities claims in interna- tution at section 250 provides: “It established in tional arbitration. shall be the duty of the General 1977. Mihalek has served as Since 1987, the U.S. Supreme Court Assembly to enact such laws as senior trial attorney with the United has decided a line of cases reinforc- shall be necessary and proper to States Securities and Exchange ing and expanding the use of decide differences by arbitrators, Commission, New York Regional arbitration. Most recently, on June the arbitrators to be appointed by Office, Division of Enforcement; 21, 2010 the U.S. Supreme Court the parties who may choose the director of the Department of Bank- held that an employer could cause summary mode of adjustment.” ing and Securities, Division of an employee to arbitrate a race dis- 8. Id. at 734. Securities, for the Commonwealth crimination and retaliation case 9. Kodak Mining Co. v. Carrs Fork of Kentucky; special assistant attor- based on the employment agreement Corp., 669 S.W.2d 917 (Ky. 1984). ney general in charge of Securities the employee signed when hired. 10. Commonwealth, Natural Resources Crimes for the Commonwealth of Rent-a-Center, West, Inc. v. Jackson, and Environmental Protection Cab- Kentucky; and special counsel for 130 S.Ct. 2772 (2010). inet v. Kentucky Ins. Guaranty the New York Stock Exchange, Inc., 2. Some of these arbitration forums Association, Ky. App., 972 S.W.2d with the litigation and regulatory include the Financial Industry Reg- 276 (1997). responsibility for the complex ulatory Authority (FINRA, 11. Id. at 280. enforcement matters involving formerly known as the National 12. Id. at 279. members of the NYSE. A native of Association of Securities Dealers, 13. See Skidmore, Owings & Merrill v. Pennsylvania, Mihalek received his or the NASD), the New York Stock Connecticut General, 197 A.2d 83 undergraduate degree from Rutgers Exchange (NYSE), the American (Conn. 1963) (an arbitration is not University in 1967 and received his Arbitration Association (AAA), the the bringing of an action within the law degree from the University of National Arbitration Forum (NAF), meaning of that phrase as used in Kentucky College of Law in 1969. the National Labor Relations Board the statute of limitations); Har-Mar Mihalek concentrates his practice (NLRB), and the Chicago Interna- v. Thorsen & Thorshov, 218 N.W.2d in the areas of investors’ rights, tional Dispute Resolution 751 (Minn. 1974) (based on the spe- securities, commodities and other complex civil litigation, including Association (CIDRA), among cial nature of arbitration class actions, arbitration and medi- many others. proceedings and both the statutory ation, and the representation of 3. Under English law, the first law on and common-law meaning of the individuals and firms in securities arbitration was the Arbitration Act term “action,” we feel compelled to investigations, disciplinary hearings of 1697. The Jay Treaty of 1794 hold that the statute of limitations and employment matters. between Britain and the United was not intended to bar arbitration

12 Bench & Bar March 2011 ion remedies appropriate to resolv- Register, 847 F.Supp. 168 (S.D. applicable, see, Statute of Limita- ing the dispute before them, Ohio 1993) (the effect of a statute of tions as a Bar to Arbitration Under including reformation of a contract, limitations is to bar an action at law, Agreement, 94 A.L.R.3d 533 often applying principles more lib- not arbitration); and Carpenter v. (2004). eral than judicial equity, their Pomerantz, 634 N.E.2d 587 26. 25 Conn. Supp. 76, 197 A.2d 83 function as arbitrators being to “find (Mass.App. 1994) (as used in the (1963). a just solution” to the controversy statutes of limitations, the word 27. Id. at 85. between the parties); Associated “action” is consistently construed to 28. 354 A.2d 154 (Me. 1976). Teachers of Huntington v. Board of pertain to court proceedings, not 29. 361 Mass. 879, 281 N.E.2d 600 Education, 33 N.Y.2d 229 (1973) arbitration); and Miele v. Prudential, (1972). For other Massachusetts (absent a provision to the contrary 656 So.2d 460 (Fla. 1995) (arbitra- decisions which have consistently in the arbitration agreement, arbitra- tion is not considered a “civil construed the word “action” to per- tors are not bound by principles of action”). tain only to court proceedings, see substantive law or rules of evi- 14. NCR Corp. v. CBS Liquor Control also Boston v. Turner, 201 Mass. dence… their duty is to reach a just dba Acme Cash Register, 847 190, 196, 87 N.E. 634 (1909); result regardless of technicalities); F.Supp. 168, 172 (S.D. Ohio 1993). Pigeon’s Case, 216 Mass. 51, 56- Town of Haverstraw v. Rockland 15. Id. at 172 (emphasis added). 57, 102 N.E. 932 (1913); Ginzberg Patrolman’s Benevolent Association, 16. Ibid. v. Wyman, 272 Mass. 499, 501, 172 481 N.E.2d 248, 491 N.Y.S.2d 616 17. Ibid. N.E. 614 (1930); and Lynch v. (1985) (arbitrator may do justice as 18. 634 N.E.2d 587, 590 (Mass.App. Springfield Safe Deposit & Trust he sees it, applying his own sense of 1994). Co., 300 Mass. 14, 16, 13 N.E.2d law and equity to the facts as he 19. Id. at 590. 611 (1938). finds them to be); Raisler Corp. v. 20. Tex. Civ. Prac. & Rem. Code Ann. 30. 218 N.W.2d 751, 754 – 756 (Minn. NYC Housing Authority, 32 N.Y.2d § 16.004 1974). 274 (1973) (absent provision to the 21. Yarborough v. Leggett, 1855 WL 31. Id. at 755. contrary in the arbitration agree- 4956 (Tex. 1855). 32. Id. at 754. ment, arbitrators are not bound by 22. Black’s Law Dictionary 1572 (9th 33. 370 S.E.2d 704 (1988). principles of substantive law or Ed. 2009) (citation omitted). 34. Id. at 704 – 705. rules of evidence); NCR Corp. v. 23. Cal. C.C.P. § 335 (emphasis 35. Case No. 06-2-32543-5SEA CBS Liquor Control dba Acme Cash added). (unpublished). 24. Cal. C.C.P. § 22 (emphasis added). 36. RCW 7.04A.230. A native of 25. Several states have statutes of limi- 37. See Case No. 82311-1 (July 22, Lexington, tations provisions similar to 2010). Steven M. California’s, including Kentucky, 38. See Angle et. al. v. ING Financial McCauley has which provide limits on “actions.” Advisors et. al., 2006 WL 1725915 been an attorney For a comprehensive list of cases in (FINRA). with Charles C. which courts have ruled that arbi- 39. See Statute of Limitations as a Bar Mihalek, P.S.C. to Arbitration Under Agreement for nearly 15 tration proceedings did not , 94 years. McCauley constitute “actions,” and thus A.L.R.3d 533, 534 (2004). received his undergraduate degree statutes of limitations were not 40. Id. at 533 – 534. from the University of Kentucky in 1987 and received his law degree from the University of Kentucky Col- Forensic Psychology Services lege of Law in 1990. He also holds an MBA in finance which he Harwell F. Smith Ph.D. received with distinction from the • CRIMINAL RESPONSIBILITY University of Kentucky College of • COMPETENCE TO STAND TRIAL Business and Economics. McCauley • PERSONAL INJURY EVALUATIONS serves as both an arbitrator and • INDEPENDENT PSYCHOLOGICAL EVALUATION panel chairperson for the Financial • DISABILITY EVALUATIONS Industry Regulatory Authority • EXPERT OPINION OFFERED TO DEFENSE OR PROSECUTION (FINRA). McCauley focuses his prac- 30 years experience. tice on securities law matters, Over 50 court appearances. including securities arbitrations and Special interest in criminal cases involving mental condition at the mediations, security enforcement time of the incident — performed more than 500 of these evaluations. matters, securities class actions, Board Certified and litigation. 859.276.1836 • 2201 Regency Rd. #501 • Lexington, KY 40503 Clinical Psychologist

March 2011 Bench & Bar 13 ARBITRATION

the Nielsen Court first noted that an arbitration is a creature of contract.9 The authority of arbitrators is conferred by the arbitration agreement itself and arbi- trators are bound to act within those terms.10 The Court observed that because the arbitration clause was writ- ten in broad and comprehensive language and included “any claims or disputes” arising from or related to the contract, the arbitrators were empow- ered with the authority to determine whether or not the plaintiffs’ claims By Janet P. Jakubowicz and which is otherwise silent as to the issue were stale.11 Moreover, the fact that the J. Curtis McCubbin of statute of limitations defenses, the arbitration agreement was silent on the applicability of such a defense is for the issue of whether the arbitrators had Why Kentucky’s statutes of limitations arbitrators to decide.3 Those attempting authority to make a determination of should apply to claims raised to avoid application of a statute of limi- timeliness was not fatal because it came in arbitration1 tations in arbitration attempt to draw a within the arbitrator’s broad grant of ny defense lawyer who fre- distinction between arbitrations and authority: quently arbitrates claims before “actions” in court. An oft-cited case by A FINRA,2 the American Arbitra- the plaintiffs’ bar addressing this issue is Just as the arbitrators were author- tion Association or a similar forum, has Har-Mar, Inc. v. Thorsen & Thorshor, ized to determine whether the likely had occasion to file a motion to Inc.4 In Har-Mar, the Minnesota defendants owed a duty to the dismiss claims that are on the very face Supreme Court stated, “[b]ased upon the plaintiffs, whether the defendants of the Statement of Claim time barred special nature of arbitration proceedings breached the standard of care, by the applicable statutes of limitations. and both the statutory and common-law whether any breach of the standard Indeed, as young lawyers, we are meaning of the term ‘action,’ we feel of care was a proximate cause of trained that every cause of action has a compelled to hold that Section the plaintiffs’ injury, and the amount, if any, of the plaintiffs’ specific statute of limitations within 541.05(1) [the six year statute of limita- damages, we believe that the broad which it must be brought or it will be tions] was not intended to bar grant of authority also empowered lost forever. Despite this axiomatic prin- arbitration of Thorsen’s fee dispute the arbitrators to determine ciple, the plaintiffs’ bar has been able to solely because such claim would be whether, in the first instance, the barred if asserted in an action in court.”5 persuade some courts (and some arbitra- plaintiffs’ claim was stale.12 tion panels) that statutes of limitations However, numerous other state and governing the timeliness of claims do federal courts have rejected this hyper- not apply in arbitrations. technical analysis which would The Court next looked at whether the This article will present the argu- completely prohibit the application of statute of limitations applied by the arbi- ments being advanced by the plaintiffs’ statutes of limitations in arbitration pro- trators was consistent with the parties’ bar; the rejection of such arguments by ceedings. In Nielsen v. Barnett,6 for reasonable expectations when they the substantial majority of state and fed- example, the Michigan Supreme Court agreed to arbitrate any claims or dis- eral courts; and why Kentucky courts was asked to determine whether an arbi- putes. According to the Nielsen Court, should follow those jurisdictions which tration panel had erred by denying the “the application of the malpractice hold that the arbitrators, not the courts, plaintiffs’ claim because it was barred statute of limitations to the plaintiffs’ have the exclusive authority to assess by the two year statute of limitations claim was certainly within the contem- the timeliness of a plaintiff’s claims. governing malpractice actions. The plation of the parties to the arbitration plaintiffs argued that, because the agreement. It was certainly not beyond A. Where parties have agreed to a “statute defining the period of limita- the reasonable expectation of the parties broad arbitration provision, the tions for a malpractice action only that the arbitration panel would judge defense of statute of limitations is applies to court actions,”7 the arbitration the timeliness of the plaintiffs’ claim generally available panel erred in dismissing the plaintiffs’ consistent with the Legislature’s deter- As a general rule, if parties have claims as untimely.8 mination of the appropriate period of agreed to a broad arbitration provision In squarely rejecting this argument, limitation for a malpractice claim.”13 14 Bench & Bar March 2011 The Nielsen Court determined that the is the threshold, then arbitrators will only expressly or implicitly recognized the policy reasons behind statutes of limita- be allowed to consider “rules” or “regu- applicability of federal and state tions — to prevent stale claims and lations” propagated by their governing statutes of limitations in arbitration pro- provide finality to litigation — were bodies. Obviously, this outcome was not ceedings. For example, in Merrill equally relevant both to actions filed in intended by the arbitration legislation Lynch, Pierce, Fenner & Smith v. Jar- court and to claims pursued in binding and the spirit of the arbitration process. ros,23 the appellants challenged the arbitration.14 Thus, the Court rejected Statutes of limitations thus protect parties arbitrators’ denial of their motion to any per se rule that arbitrators have no from having to deal with disputes dismiss on statutes of limitations authority to interpret or apply statutes of (whether in court or arbitration) in which grounds. Although the Sixth Circuit limitations, and reinstated the circuit the search for truth has been seriously refused to vacate the arbitrators’ deci- court order denying the plaintiffs’ impaired by plaintiffs who have slept on sion, it did not do so on the ground that motion to vacate the arbitration award.15 their rights and evidence may have been arbitration actions are exempt from The sound reasoning applied by the lost or witnesses’ memories faded. statutes of limitations bars. To the con- Nielsen Court applies with equal force to Moreover, there can be little doubt trary, the Sixth Circuit implicitly Kentucky arbitrations. Arbitration is not that an arbitration is a quasi-judicial recognized that statutes of limitations intended to enlarge or re-write existing forum.21 The fact that the arbitrator is do apply to arbitrations: “Because Jar- laws,16 but rather to provide an efficient, appointed by agreement to act as arbi- ros did not institute arbitration less costly alternative forum for resulting trator and is empowered to determine proceedings until much longer than one disputes under existing laws. Parties do the rights, duties and obligations of the year. . . [after discovery of the facts not forgo substantive rights by agreeing parties, enforce sanctions, and render a underlying his claim], it appears his to arbitrate their disputes.17 However, if a binding decision which is enforceable federal securities claims were not statute of limitations defense no longer against one of them, clearly demon- timely brought. . . Even accepting this applies, then a substantive right is being strates that the arbitration is argument as true, there was a period of given up and the parties may not even quasi-judicial in nature.22 two years and two months during realize it. It would be inconsistent and which any claim that arose would not unfair for a party to invoke the protec- B. Kentucky should follow the majority have been time-barred. It is likely that tions of Kentucky’s state laws, while at of courts which have recognized the at least one state law claim arose during the same time seeking to avoid the limi- applicability of statutes of this period and therefore would not be tations periods contained in those same limitations in arbitration time-barred. A single timely state law statutes. Indeed, plaintiffs frequently seek An overwhelming majority of courts claim would support the arbitration attorneys’ fees and damages under from across the country have both award in its entirety.”24 statutes which only apply to “lawsuits” or “actions,” yet argue that arbitrations are not “suits” or “actions” so as to avoid the application of statutes of limita- Build Your Nonprofit tions.18 In securities arbitration, Plaintiffs commonly bring breach of fiduciary Organization Practice duty, state securities statutory violations, breach of contract, and negligence claims I Will Support Your Practice Development that fall under state statutes or common Services for Attorneys law. It is reasonable to assume that par- www.nonprofitattorney.net ties have an expectation that an arbitrator will determine the timeliness of the Assistance Provided asserted claims consistent with the appli- • Document Templates • Nonprofit Dissolution & Merger cable state and federal statutes of • Review of Client • Nonprofit Lobbying Procedures 19 limitations. Indeed, a contrary position Tax-exempt Applications • Organizational Policies & would lead to the absurd results of par- • Training Sessions for Procedures ties being able to flood arbitration panels Prospective Clients • For-Profit Subsidiaries and with stale, untimely claims many years • Attorney General Compliance Joint Ventures after the fact.20 Procedures To take this argument to its logical Conley Salyer, Attorney, J.D., LL.M.; Examiner, Malcolm Baldrige National Quality conclusion, how can arbitration panels Award (MBNQA). [email protected], (859) 281-1171, apply any type of statute that only 444 E. Main Street, Lexington, KY 40507. THIS IS AN ADVERTISEMENT. applies to “lawsuits” or “actions?” If this

March 2011 Bench & Bar 15 This same result was reached by definitely resolved by our Kentucky bringing of an action under any of Judge David L. Bunning from the courts, parties should consider specify- our statutes of limitation.”); Lewis- United States District Court for the East- ing in their arbitration contracts which ton Firefighters Association v. City ern District of Kentucky in First Family statutes of limitations will govern their of Lewiston, 354 A.2d 154, 167 Financial Services, Inc. v. Mollet.25 In future disputes or specify a time limit to (Maine 1976) (holding that “[a]rbi- that case, Judge Bunning was confronted bring certain claims so far as to elimi- tration is not an action at law and with an arbitrator’s award which the los- nate the risk of having to defend against the statute is not, therefore, an ing parties sought to vacate, in part, claims that one would ordinarily believe automatic bar to the [Firefighters’] because the arbitrator had failed to apply are time barred. recovery.”); Broom v. Morgan Stan- the applicable statutes of limitations and ley DW Inc., 236 P.3d 182, 244 bar the claim. Although the Court ulti- ENDNOTES (Wash. 2008) (holding that an arbi- mately refused to vacate the award, the 1. The authors would like to acknowl- tration is not an “action” subject to Mollett Court noted that because the edge the assistance of Jessica T. the state of Washington’s statutes arbitrator was “presented with conflict- Sorrels, Esq. for her work in con- of limitations. ing theories concerning how the statute nection with this article. 6. 485 N.W.2d 666 (Mich. 1992). of limitations should be interpreted,” it 2. In 2007, the National Association 7. Id. at 668. could not be said that he manifestly dis- of Securities Dealers, Inc. merged 8. The parties’ arbitration agreement regarded the law.26 with the New York Stock was governed by the Malpractice Obviously, if there were a clearly Exchange. The merged entity is Arbitration Act, M.C.L. § defined legal principle that statutes of known as the Financial Industry 600.5805(1); M.S.A. § limitations do not apply to arbitrations, Regulatory Authority (“FINRA”). 27A.5805(1) which provides: it would have been unnecessary for the FINRA is the regulatory body A person shall not bring or main- Courts in Jarros and Mollett to analyze which administers arbitration tain an action to recover damages whether the limitations had run on all claims between broker dealers and for injuries to persons or property of the claims being asserted in the customers in the securities industry. unless, after the claim first accrue underlying arbitrations. The reasoning Arbitration is the primary dispute to the plaintiff …, the action is of the Jarros and Mollett Courts is resolution mechanism in the securi- commenced within the periods of therefore consistent with cases from ties industry today. time prescribed by this section. other jurisdictions which have 3. See, e.g., ON Equity Sales Co. v. (emphasis added). expressly held that state and federal Pals, 528 F.3d 564 (8th Cir. 2008); Liberte Capital Group, LLC v. statutes of limitations apply to arbitra- Janet P. 27 th tion proceedings. Capwill, 148 Fed. Appx. 413 (6 Jakubowicz is a Cir. 2005) (unpublished); MONY member with Conclusion Sec. Corp. v. Bornstein, 390 F.3d the firm of Contrary to the handful of out of 1340 (11th Cir. 2004); Wash. Greenbaum Doll state courts which have held that Square Sec., Inc. v. Aune, 385 F.3d & McDonald statutes of limitations do not apply in 432 (4th Cir. 2004); IDS Life Ins. PLLC in the arbitrations, these authors believe that Co. v. Royal Alliance Assocs., Inc. Litigation and the more reasoned approach is for Ken- 266 F.3d 645 (7th Cir. 2001); Dispute Resolu- tucky to follow the majority of Decker v. Merrill Lynch, Pierce, tion Practice Group and the Class Action Defense Team chair. Her jurisdictions which permit arbitrators to Fenner & Smith, Inc., 205 F.3d th practice focuses on business and apply statutes of limitations where the 906 (6 Cir. 2000). commercial litigation, with an parties have otherwise agreed to a 4. 218 N.W.2d 751 (Minn. 1974). emphasis in the areas of financial 28 broad arbitration provision. Such a 5. For examples of other courts that institutions, securities and RICO lit- position would be consistent with Ken- have concluded that arbitrations are igation and arbitration and class tucky’s public policy against the not “actions” in the context of action litigation. She received her prosecution of stale and outdated issues related to statutes of limita- undergraduate degree from the Uni- claims in litigation.29 It would also be tions, see, e.g., Skidmore, Owens & versity of Louisville in 1979 and her in line with the expectations of the par- Merrill v. Connecticut General Life J.D. from the University of Kentucky ties that the arbitral award for which Insurance Co., 197 A.2d 83, 87 College of Law in 1982. Jakubowicz they bargained will truly be final and (Conn. Super. 1963) (concluding served as past president of the Louisville Bar Association and is a immune from intrusive review by the that “[a]rbitration is not a common- member of the Kentucky and Ameri- courts. law action, and the institution of can Bar Associations. However, until this issue has been arbitration proceedings is not the

16 Bench & Bar March 2011 The statute further provides that: as securities industry disputes), the in part, that no claim can be sub- “[t]he period of limitations is two Federal Arbitration Act, 9 U.S.C. § mitted to arbitration if six years years for an action charging mal- 1, et seq. also applies. have elapsed “from the occurrence practice.” M.C.L. § 600.5805(4); 17. Mitsubishi Motors Corp. v. Soler or event giving rise to the claim.” M.S.A. § 27A.5805(4) (emphasis Chrysler-Plymouth, 473 U.S. 614, In contrast, the AAA Commercial added). 628 (1985). Arbitration Rules impose no spe- 9. Id. at 669. 18. For example, under the Federal cific outside time limits within 10. Id. Securities Law, attorneys’ fees are which claims must be filed. 11. Id. at 670. This principle is consis- recoverable for violations of 10b-5 21. The format and substance of a tent with the general proposition to any person “who may sue at law FINRA arbitration proceeding, for that arbitration awards should be or in equity in any court of compe- example, is clearly judicial in upheld so long as they do not disre- tent jurisdiction.” 15 U.S.C. § 78r nature. Such proceedings provide gard the plain provisions of the (emphasis added). Plaintiffs in for a statement of claim and answer contract. See General Telephone securities arbitrations frequently to be filed, written discovery to be Company of Ohio v. Communica- make claims for their attorneys’ conducted pursuant to established tions Workers, 648 F.2d 452 (6th fees pursuant to this and other simi- guidelines, motion practice, sub- Cir. 1981). See also Orion Shipping lar statutory provisions that poenas, opening statements, & Trading Co. v. Eastern States reference only courts, and not arbi- followed by direct and cross exami- Petroleum Corp., 312 F.2d 299 (2nd tration proceedings. nations, expert witnesses, closing Cir. 1963). 19. It is a well established policy in statements, deliberations by the 12. Id. Kentucky that statutes of limitations arbitrations and issuance of a writ- 13. Id. are statutes of repose and were ten award. FINRA Code of 14. Id. at 669 enacted “to fix in every case, a defi- Arbitration, § 13000, et seq. 15. Id. at 671. nite limit” of time for bringing 22. Kentucky courts have not yet had 16. In 1984, Kentucky adopted the actions or proceedings for relief. occasion to address the issue of Uniform Arbitration Act, KRS Hoffert v. Miller, 9 Ky L. Rptr. 732, whether an arbitration is a quasi- §417.045, et seq., , which governs 86 Ky 572, 6 S.W. 447 (Ky. 1888). judicial proceeding. However, arbitrations in Kentucky. If the There is no logical reason to believe courts from other jurisdictions have arbitration agreement at issue that the Legislature intended to so held. See, e.g., Cahn v. Interna- involves interstate commerce (such exempt arbitrations from that policy. tional Ladies’ Garment Union, 203 20. In securities industry arbitrations, F. Supp. 191 (E.D. Pa. 1962) (hold- FINRA Rule 12206 contains an eli- ing that if “one is appointed by J. Curtis McCub- bin is assistant gibility provision which provides, agreement of parties to act as arbi- corporate coun- sel for J.J.B. Hilliard, W.L. Lyons, LLC, a brokerage firm headquartered in Louisville. His practice focuses on securities arbi- tration and litigation, regulatory and statutory compliance and general corporate law. McCubbin received his undergraduate degree from Tran- sylvania University in 2003 and his J.D. from the University of Kentucky College of Law in 2006. He is a member of the Securities Industry and Financial Markets Association, as well as the Louisville and Ken- tucky Bar Associations. McCubbin also serves as secretary for YPAL Cares and volunteers with Legal Aid Society and AMBUCS.

March 2011 Bench & Bar 17 trator, and is empowered to resolve 24. Id. at 421-22 WL 755875 (S.D. Ohio 2008) dispute between them, he is, in so 25. 2006 WL 695258 (E.D. Ky. 2006). (implicitly recognizing that the acting, performing a ‘quasi-judicial’ 26. Id. at *8. timeliness of claims is determined function ….); International Associa- 27. For examples of other courts which by the arbitrators); Max Mark Color tion of Firefighters v. City of Everett, have concluded that statutes of limi- & Chemical Co. Employees’ Profit 146 Wash. 2d. 29, 42 P.3d 1265 tations apply to arbitration Sharing Plan v. Barnes, 37 F. Supp. (Wash. 2002) (holding that arbitra- proceedings, see O’Neel v. National 2d 248, 255 (S.D.N.Y. 1999) (hold- tions may be judicial in nature, Assoc. of Securities Dealers, Inc., ing that arbitration panel acted depending on the circumstances); 667 F.2d 804, 807 (9th Cir. 1982) appropriately in granting a motion Boyd v. Davis, 897 P.2d 1239 (Wash. (holding that the validity of time- to dismiss based, in part, on 1995) (quoting N. State Constr. Co. v. barred defenses to enforcement of ERISA’s three year statute of limita- Banchero, 386 P.2d 625 (1963)) (per arbitration agreements is generally tions); Dean Witter, Reynolds, Inc. v. curiam) (concluding that “[a]rbitra- determined by the arbitrator, not the McCoy, 853 F. Supp. 1023, 1034 tors, when acting under the broad court); United Rubber, Cork, (E.D. Tenn. 1994) (“[t]he NASD authority granted them by both the Linoleum & Plastic Workers of arbitrators are required to follow agreement of the parties and the America v. Pirelli Armstrong Tire, and apply the same substantive law statutes, become the judges of both Corp., 104 F.3d 181 (8th Cir. and the applicable statute of limita- the law and the facts.”) In addition, at 1997)(same); National Iranian Oil tions as the courts”); Davis v. least one Kentucky federal court, Co. v. Mapco Int’l Co., 983 F.2d Skarnulis, 827 F. Supp. 1305, 1308 Warren v. Tacher, 114 F. Supp. 2d 485, 491 (3d, Cir. 1992) (holding (E.D. Mich. 1993) (holding that 600, 602-03 (W.D. Ky. 2000), has that the arbitrator determines the statute of limitations defenses apply recognized the authority of FINRA timeliness of the underlying claim); in arbitration); Prudential Securities, arbitrators to decide prehearing dis- Durham County v. Richards & Inc. v. LaPlant, 829 F. Supp. 1239, missals for failure to state a claim (as Assoc., Inc., 742 F.2d 811, 815 (4th 1243 (D. Kan. 1993) (“[I]t is well- a court would do) so long as the dis- Cir. 1984) (concluding that claims settled that the determination of all missal is not fundamentally unfair. of untimeliness are for the arbitra- time-barred defenses, including the 23. 70 F.3d 418, 421 (6th Cir. 1995). tor); Berkley v. Merrill Lynch, 2008 statute of limitations, is to be made by the arbitrator, not the courts.”). In addition, the FINRA Code of Arbi- tration Procedure specifically allows WORDS THAT WILL IMPRESS for dismissal based on time-barred EVERYONE IN THE COURTROOM claims. See FINRA Rule 12206 (“This Rule shall not extend appli- "The Court said last week....." cable statutes of limitations. . . .”) (emphasis added). LAWREADER ALLOWS YOU TO USE 28. At least three states (New York, THESE WORDS FREQUENTLY! Delaware and Georgia) have passed statutes expressly providing that LAWREADER PUBLISHES A WEEKLY SYNOPSIS parties may assert the applicable OF ALL KENTUCKY APPELLATE DECISIONS statutes of limitations as a bar to an arbitration. See, e.g., NY CPLR In minutes you can scan our keywords for each §7502(b); 10 Del. C. §5702(b); case, read a synopsis or call up the full text of any Official Code of Georgia § 9-9-5. case that is of interest. And best of all, this useful 29. See also National Iranian Oil Co. feature is included in our basic membership fee. v. MAPCO International, Co., 983 F.2d 485, 491 (3d Cir. 1992) (con- 95 Still Only $34. cluding that while the Federal Per Month Arbitration Act reflects a strong Annual Programs Available federal policy favoring arbitration, Congress, by declining to provide www.LawReader.com for a specific limitations period, did 502-732-4617 not intend to grant parties the per- petual right to enforce arbitration agreements).

18 Bench & Bar March 2011 ARBITRATION

where the contract was made or which governs the interpretation of the agree- ment, both to efforts to compel arbitration under the KUAA and to efforts to compel arbitration under the FAA.9 In Stutler,10 the Court held that while an agreement to arbitrate is valid as a matter of federal law, state law will generally govern issues concerning the validity of the contract and defenses, including fraud, duress, and uncon- scionability.11 Accordingly, the Court held that a district court erred in apply- ing federal common law rather than By Walter L. Sales Federal and State Substantive state law as to contract defenses. Developments The FAA and the KUAA appear to be he Federal Arbitration Act (here- The Kentucky Supreme Court has for the most part harmonious. For exam- inafter the FAA) provides that: opined that the relevant provisions of ple, Kentucky excludes employment T the FAA and KUAA, cited above, are agreements from those arbitration agree- virtually identical, Louisville Peterbilt, ments which may be enforced under the A written provision in any maritime Inc. v. Cox4. When a state statute is KUAA. The FAA has a similar, but not transaction or a contract evidencing a modeled on a federal one, typically, as identical provision in 9 USC §1 which transaction involving commerce to set- tle by arbitration a controversy to the substantive provisions of the exempts from its coverage, “contracts of thereafter arising out of such contract statutes, Kentucky courts have been employment of seamen, railroad or transaction, or the refusal to perform directed to adopt U.S. Supreme Court or employees, or any other class of work- the whole or any part thereof, or an Sixth Circuit law interpreting the federal ers engaged in foreign or interstate agreement in writing to submit to arbi- statute when there is a lack of precedent commerce.” In Gilmer v. tration an existing controversy arising in Kentucky.5 In Peterbilt, the Kentucky Interstate/Johnson Lane Corporation,12 out of such a contract, transaction, or Supreme Court adopted the U.S. the U. S. Supreme Court held that an refusal, shall be valid, irrevocable, and Supreme Court’s basic guide on inter- employment agreement to arbitrate all enforceable, save upon such grounds as preting the FAA as the way to interpret disputes, including statutory ones aris- exist at law or in equity for the revoca- the KUAA, “any doubts concerning the ing under the Federal Age tion of any contract.2 scope of arbitrable issues is to be Discrimination in Employment Act, was Kentucky’s Uniform Arbitration Act resolved in favor of arbitration, whether arbitrable because the agreement to arbi- (KUAA) has a similar provision: the problem at hand is the construction trate was embedded in a registration of the contract language itself or an alle- agreement between the employee and A written agreement to submit any gation of waiver, delay, or a like defense the New York Stock Exchange, and existing controversy to arbitration or a to arbitrability.” 6 In Peterbilt, the Court hence was not technically an employ- provision in written contract to submit held that even as to allegations that the ment agreement at all. Later, citing to arbitration any controversy there- contract containing the agreement to Gilmer, the Kentucky Court of Appeals after arising between the parties is valid, enforceable and irrevocable, save arbitrate was procured by fraud that held that the very same registration 7 upon such grounds as exist at law for question was reserved for the arbitrator. agreement between an employee and the the revocation of any contract. This The identical savings provisions in the New York Stock Exchange also justified chapter does not apply to: FAA and KUAA which exempt from the enforcement of an agreement to (1) Arbitration agreements between enforcement those agreements which arbitrate claims of sexual harassment, employers and employees or between “save upon such grounds as exist at law retaliation, and equal pay violations their respective representatives; and for the revocation of any contract,” do asserted by a registered broker against (2) Insurance contracts. Nothing in this not apply to fraud in the inducement to her employer.13 But, the Court held that subsection shall be deemed to invali- enter the contract, but only as to fraud allegations of rape and battery against a date or render unenforceable in the inducement to agree into the arbi- co-worker which formed the basis for contractual arbitration provisions tration provision itself.8 her statutory claims of sexual harass- between two (2) or more insurers, including reinsurers.3 To determine whether and to what ment were not subject to the agreement extent parties entered into an agreement to arbitrate because those acts, if true, The KUAA is a uniform statute which which requires arbitration, courts will are “independent of the employment has been adopted by most of the states. obviously apply the law of the state relationship.”14 Recognizing that the

March 2011 Bench & Bar 19 result left the parties to litigate some §417.050 excludes employment agree- binding non-signatories to arbitration claims in court and to arbitrate others, ments from its coverage, but that does agreements have been recognized: (1) the Court of Appeals, again citing Cone, not limit Kentucky courts from enforc- incorporation by reference, (2) assump- observed “that it is the FAA and the ing these provisions. The Court of tion, (3) agency, (4) veil-piercing/alter contract which requires the piecemeal Appeals held that the statutory exclu- ego, and (5) estoppel.”22 resolution.”15 sion does not pre-empt ordinary contract The estoppel theory and the decision A question left unanswered by the principles from applying, but only limits of the Court in Thomson-CSF v. Ameri- court in Gilmer was whether an agree- the use of the procedural rules set forth can Arbitration Association was ment to arbitrate contained in a in the KUAA from applying to employ- adopted by the Kentucky Supreme traditional employment agreement could ment agreements. The Court also noted Court in North Fork Colleries, LLC v. be enforced under the FAA since the that both parties had relied upon various Hall,23 when it held that third party ben- agreement in Gilmer was one between a provisions of the KUAA throughout the eficiaries of a contract containing an brokerage’s employee and the New proceedings, though the Court of arbitral dispute resolution mechanism York Stock Exchange. That question Appeals did not characterize that were bound by that agreement even if was answered 10 years later in Circuit reliance as a waiver or a post-dispute other rights of other parties under City Stores, Inc. v. Adams,16 where the agreement to arbitrate. Nor did the related agreements were not subject to Court held that the exemption from cov- Court of Appeals mention the FAA as a arbitration. The Court noted that the erage of the FAA contained in 9 U.S.C. basis for its holding, though the FAA parties could have specifically opted for §1 for “contracts of employment of sea- probably would have applied. At the a provision to stay arbitration while oth- men, railroad employees, or any other time of the writing of this article no fur- ers not subject to arbitration can litigate class of workers engaged in foreign or ther motion for discretionary review has their sides of the dispute, but in the interstate commerce” was limited to been filed. absence of such an agreement related workers directly involved in transporta- An interesting outgrowth from Jacob litigation should be stayed to allow for tion. The Supreme Court did not equate v. Dripchak and Circuit City v. Adams is arbitration.24 the use of the words “in foreign or inter- the possibility that employers and But in Stolt-Nielsen S.A. v Ani- state commerce” in 9 U.S.C. §1 as employees in the transportation industry malfeeds International Corp.,25 the co-extensive with the power of Con- in Kentucky may seek to enforce agree- Court held that an agreement to arbitrate gress under the Commerce Clause of the ments to arbitrate under ordinary contract a class action dispute would not be U.S. Constitution.17 principles, eschewing both the FAA and inferred from an otherwise enforceable The limited exemption for contracts the KUAA because both exclude such agreement to arbitrate because while an of employment of transportation work- contracts from their coverage. arbitrator may adopt procedures neces- ers is not found in the KUAA which That agreements to arbitrate require sary to give effect to the intent of the exempts all employment contracts from the consent of the parties may seem parties, it simply cannot be inferred its ambit.18 But, the Kentucky Court of obvious, but the application can some- from the fact of an agreement to arbi- Appeals recently held, on remand from times take interesting twists. For trate a bilateral dispute that there is an the Kentucky Supreme Court, that a example, the Kentucky Court of agreement to arbitrate a complex class contract of employment which included Appeals in Olshan Foundation v. Otto,20 action. The Court relied heavily upon an arbitration provision could be held that an action by homeowners for the fact that there could be thousands of enforced in Kentucky despite the breach of warranty contained in a con- class members asserting many disputes, exemption.19 There, an employment tract with the home builder was required and that the award of the arbitrator agreement contained a provision requir- to be arbitrated despite the fact that the adjusts the rights of the actual parties to ing arbitration of disputes. Ultimately, homeowner was not a signatory to the the agreement but perhaps hundreds or an arbitrator’s award provided relief for contract. The homeowners by seeking to thousands of non-parties as well. both the employer and the employee, enforce warranties contained in the and the award was confirmed by the agreements between the previous home- Procedural Developments. Circuit Court. The Court of Appeals owners and the contractor were held to Under both federal and state arbitra- affirmed confirmation of part of the be estopped from denying the arbitral tion laws appeals may be taken from award and reversed part. The Kentucky choice of dispute resolution contained in interlocutory orders denying a motion to Supreme Court granted a motion for the contracts at issue when they sought compel arbitration or to stay litigation in discretionary review, vacated the deci- other benefits of those agreements.21 favor of arbitration, or confirming, mod- sion of the Court of Appeals, and The receipt of a direct benefit from the ifying, or vacating awards of remanded to the Court of Appeals to contract by the non-signatory operated arbitrators.26 By the same provisions, reconsider whether the exclusion in as an acceptance of all of the terms. The however, appeals may not be taken from KRS §417.050 for arbitration agree- Court quoted with approval the stan- interlocutory orders compelling or ments between employers and dards set forth by the Court of Appeals directing arbitration or refusing to employees applied. On remand, the in Thomson-CSF v. American Arbitra- enjoin arbitration. Court of Appeals held that KRS tion Association: “Five theories for The choice available to a party seek-

20 Bench & Bar March 2011 ing to compel arbitration is frequently court lacks jurisdiction to compel arbi- wrongful death of her mother, and nurs- not “either/or” as in FAA or KUAA. tration even, when as here, the ing home unsuccessfully sought to Rights asserted under the FAA must be agreement to arbitrate references the compel arbitration under the KUAA in asserted in state and federal courts as KUAA.33 The Court specifically with- circuit court. Appellant sought relief in defenses, and both federal and state held making the same judgment when the Court of Appeals under CR 65.07 by courts are obliged to honor the federal the case before it was on a motion to filing a motion for intermediate relief preference for arbitration, but they enforce an arbitration award, where the which was denied by the Court of remain free to apply state contract law arbitration did not occur in Kentucky.34 Appeals as not being authorized by to this federal preference.27 Additionally, because the seller was KRS 417.220. A similar motion was There is no jurisdictional component not a signatory to the homeowners war- filed in the Kentucky Supreme Court to the FAA. It creates no independent ranty containing the arbitration under CR 65.09. The Supreme Court cause of action. The same is true with provision and because Ally Cat was reviewed the appellate provision of the the KUAA except for the jurisdictional likewise not a party (Ally Cat’s sole KUAA which provides that “the appeal limitations of KRS 417.200 which were member signed it in her own name) the shall be taken in the manner and to the the subject of an interesting case at the Court went on to hold that the agree- same extent as from orders or judg- Kentucky Supreme Court. In Ally Cat, ment to arbitrate otherwise failed to ments in a civil action,” and noting the LLC v. Chauvin,28 Ally Cat purchased a meet the requirements of KRS 417.050. vagueness of the statute rejected the condominium, out of which it intended Moreover, because the warranty was requirement that a notice of appeal (set to operate a medical practice. There was limited only so long as the unit was forth in CR 73) must be filed under no arbitration agreement between Ally used for a residence, the Court con- KRS 417.220(2). Rather, the Court con- Cat and the seller. Later the Homeown- cluded it did not apply as the unit was cluded that KRS 417.220(2) authorized ers Association and the sole member of used for business.35 both modes of appellate redress from an Ally Cat signed a homeowners’ war- Two cases which discuss appellate order refusing to compel arbitration. ranty containing an agreement to procedures are worth noting. In Kindred Either CR 65 or CR 73 could be used.37 arbitrate, and referencing the KUAA. Hospitals Limited Partnership v. When using CR 65, however, a high Ally Cat later asked the seller to repair Lutrell,36 administratrix of an estate burden must be met in order to obtain leaks in the roof which were not per- sued a nursing home for negligence and relief – if irreparable injury is lacking formed to its satisfaction and then sued the seller for breach of the sale contract, fraud, and negligence. Ally Cat did not seek relief under the warranty. The Cir- cuit Court, on motion of the defendant, compelled arbitration and the Court of Appeals denied Ally Cat’s motion for interlocutory relief. Ally Cat then filed a petition for writ of prohibition because as acknowledged by the Supreme Court, “an order compelling arbitration under a valid arbitration agreement is, ordinar- ily, not appealable.”29 Ally Cat argued that because of KRS 417.200 the circuit court lacked jurisdiction in the first instance, thereby making relief via extraordinary writ appropriate.30 KRS 417.200, the statute governing jurisdic- tion, states in salient part, “[t]he making of an agreement described in KRS 417.050 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this chap- ter…” The Kentucky Supreme Court, citing with approval Tru Green Corp. v. Sampson,31 and Artrip v. Samons Con- struction, Inc.,32 held that when an agreement to arbitrate does not explic- itly state that the arbitration is to be conducted in Kentucky, then the circuit

March 2011 Bench & Bar 21 relief may be denied. On the other hand, ries with it the possibility of not being Finally, another recent development party can invoke the court’s appellate able to prove a right to extraordinary is found in the Kentucky Supreme jurisdiction pursuant to the normal relief, observing that when the party Court’s decision in Ernst & Young, LLP processes of CR 73 which of course are seeking to compel arbitration asserts v. Clark,44 petition for writ of certiorari lengthier and without a stay could result that its bargained for right of an arbitral denied.45 There, a financially distressed in an appellate decision that comes too forum will be denied if arbitration is not workers compensation self-insurance late. Finally, the Court held that while compelled then it has met its burden fund was placed into rehabilitation KRS 417.220 allows for two separate under Kodak Mining Corporation v. under Kentucky’s Insurers Rehabilita- appellate paths, an appellant may use Carrs Fork Corporation.42 The court tion and Liquidation Laws (“IRLL”).46 only one.38 then rationalized its prior holdings in Under the IRLL the Commissioner of Just last year, the Court, while Kindred Hospitals and Oakwood Mobile the Kentucky Department of Insurance accepting that there are two separate Homes v. Sprowls43 by noting that in serves as the rehabilitator. The rehabili- appellate paths for parties to appeal those cases the equitable claim asserted tator and members of the fund sued the from orders denying arbitration, seem- by the party seeking arbitration relied former auditor of the fund alleging ingly loosened the strictures of using on the cost and delay of litigation rather accounting malpractice which caused or CR 65.07 or CR 65.09 in North Fork then being deprived of its contractual substantially caused the near financial Colleries, LLC. V. Hall.39 There the bargain to an arbitral forum. collapse of the fund. The Kentucky Court held that, when faced with a If the Court’s explanation of the dif- Supreme Court held that the agreement motion to compel arbitration, the court’s ferences between North Fork Colleries to arbitrate between the fund and its job is to determine if in fact an agree- on the one hand and Kindred Hospitals auditors was binding on the members of ment to arbitrate was reached and and Oakwood on the other holds true in the fund because they assented to the whether said agreement applies to the future cases, it will place a premium on agreements as a condition of their appli- instant dispute. When it does, reference parties seeking to compel arbitration to cation to join the fund.47 However, the to arbitration is required.40 The Court make it clear that their equitable injury Court refused to compel arbitration of then seemed to back away from its is to the benefit of their bargain, and not the rehabilitator’s claims because the observations in Kindred Hospitals41 that to the cost and delay associated with McCarron Ferguson Act48 “establishes a the risk of proceeding under CR 65 car- losing that bargain. doctrine of reverse pre-emption that expressly exempts from federal preemp- tion state statutes enacted to regulate insurance, leaving the regulation of Forensic Psychiatry PLLC insurance to the individual state.”49 Relying on Humana Inc. v. Forsythe50 Licensed to practice medicine in Ohio, West and Stephens v. American Int’l Ins. 51 Virginia, Kentucky and Pennsylvania. Co., the Court held that the FAA did not regulate the business of insurance, 919 Sixth Ave. that the IRLL was intended to regulate Huntington WV 25701 the business of insurance, and that Office: 304-781-0228 because the FAA would “invalidate, impair, or supersede” Kentucky’s IRLL, Fax: 304-781-0229 it was subject to reverse pre-emption. Email: [email protected] bobbymillermd.com Conclusion TYPES OF SERVICES The evolution of the law of arbitration is now in a second, maturing phase. The Brain Injury • Civil Competency first phase was establishing in state and Criminal Competency • Emotional Damages federal jurisprudence the concept of a Employment Dispute • Fitness for Duty preference for the enforcement of private Bobby A. Miller, M. D. Independent Medical Evaluation agreements to settle disputes through Medical Malpractice • Quality of Parenting Psychological & Neuropsychological Testing arbitration, rather than through judicial Sex Offender • Litigation Support Services litigation. In that first phase appellate Will Contest • Workers’ Compensation courts generously enforced arbitration agreements. In the current second phase, • Board Certified Forensic Psychiatrist • Director of Forensic Services at the limits to what the courts will enforce • Board Certified Neuropsychiatrist Mildred Mitchell-Bateman Hospital are being set as lawyers and their clients • Board Certified Psychiatrist & River Park Hospital are less inclined to litigate what has • Residency Trained Neurologist already been established. Now, the litiga- tion tests the nuances. For those lawyers

22 Bench & Bar March 2011 engaged in litigating and drafting arbitra- 12. 500 U.S. 20 (1991). there is no remedy through an tion agreements the challenge is now 13. Hill v. J.J.B. Hilliard, W.L. Lyons, application to an intermediate much greater; i.e., to master the nuances Inc., 945 S.W. 2d 948 (Ky. App. court.’”) of the limitations that arise in the matu- 1996). 31. 802 S.W.2d 951, 952 (Ky. App. rity phase of the development of the law 14. Id. at 952. 1991). of arbitration. 15. Id. 32. 54 S.W.3d 169, 171 (Ky. App. 16. 532 U.S. 102 (2001). 2001) ENDNOTES 17. Id. at 115-116. 33. Id. at 455. 1. The scope of this article covers the 18. See KRS §417.050. 34. Id. at 456. development of the law of arbitra- 19. Jacob v. Dripchak, et al.,___ S.W. 35. Id. tion in Kentucky. The principal 3d___, No. 2008-CA-001157 -MR 36. 190 S.W. 3d 916 (Ky.2006). sources for the evolution of the law (January 21, 2011). 37. Id. at 920. in Kentucky are the Federal Arbi- 20. 276 S.W. 3d 827 (Ky. App. 2009). 38. Id. at 921. Though the Supreme tration Act, 9 USC§ 1, et seq., and 21. Id. at 831. Court disagreed with the rationale the Uniform Arbitration Act, KRS 22. 64 F.3d 773, 776 (2d Cir. 1995). used by the Court of Appeals it §417.045, et seq. The article does See also the Court’s reliance on ultimately affirmed the Court of not address developments in the Javitch v. First Union Securities, Appeals decision to deny arbitra- law under collective bargaining Inc., 315 F.3d 619 (6th Cir. 2003). tion because the appellant failed to agreements between employers and 23. 322 S.W.2d 98, 106 (2010). show extraordinary cause as labor unions in the private sector, 24. See the Court’s reliance on Volt required by CR 65.09. Id. at 922. which are subject to the federal Information Services, Inc. v. Stan- 39. 322 S.W. 3d 98 (Ky. 2010). common law as it has developed ford University, 489 U.S. 468 40. Id. at 102. under Section 301 of the Labor (1989); Rodriguez v. American 41. 190 S.W.3d 916 (Ky. 2006). Management Relations Act, 29 Technologies, Inc., 136 Cal.App.4th 42. 669 S.Wd. 2d 917 (Ky. 1984). USC §185. Textile Workers Union 1110, 39 Cal.Rptr.3d 437 (2006). 43. 82 S.W.3d 193 (Ky. 2002). v. Lincoln Mills of Alabama, 353 25. ___ U.S.___, 130 S.Ct. 1758 44. 323 S.W.3d 682 (Ky. 2010). U.S. 448 (1957). (2010). 45. ______U.S.______(Feb, 2. 9 USC §2. 26. 9 U.S.C. §16; KRS §417.220. 2011). 3. KRS § 417.050. 27. Seawright v. American General 46. KRS Ch. 304.33. 4. 132 S.W.3d 850, 854 (Ky. 2004). Finance Services, Inc., 507 F.3d 47. Ernst & Young, supra at 694-5. 5. Harker v. Federal Land Bank, 679 967, 972 (6th Cir. 2007); Stutler v. 48. 15 U.S.C. §1011. et seq. S.W. 2d 226, 229 (Ky. 1984). T.K. Constructors, Inc., 448 F.3d 49. Id. at 688. 6. Moses H. Cone Memorial Hospital 343, 345 (6th Cir. 2006); Oakwood 50. 525 U.S. 299 (1999). v. Mercury Construction Corp., 460 Mobile Homes, Inc. v. Sprowls, 82 51. 66 F.3d 41, 43 (2d Cir. 1995)(inter- U.S. 1, 24-25 (1983) (hereinafter S.W. 3d 193(Ky. 2002). See also preting Kentucky law) referred to as “Cone”). Kruse v. AFLAC International, 7. 132 S.W.3d 850, 855 (Ky. 2004). Inc., 458 F. Supp. 2d 375 (E.D. 8. Id. at 854. The Kentucky Supreme Ky., 2006)(“Generally, state law Walter L. Sales Court adopted the U. S. Supreme principles that govern the forma- is a member in Court’s holding in Prima Paint tion of contracts will apply…In Stoll Keenon Corporation v. Flood and Conklin deciding whether the parties agreed Ogden’s Mfg. Co., 388 U.S. 395 (1967). to arbitrate a dispute, the court Louisville office. 9. Oakwood Mobile Homes, Inc. v. examines the applicable state con- Sales focuses Sprowls, 82 S.W. 3d 193(Ky. tract law[citation omitted]. his practice on 2002). See also Seawright v. Ameri- However, the federal policy favor- labor and can General Finance Services, Inc., ing arbitration is taken into employment 507 F.3d 967, 972 (6th Cir. 2007); consideration even in applying law, as well as insurance receiver- Stutler v. T.K. Constructors, Inc., ordinary state law.”) Id. at 382. ship litigation. He has vast 448 F.3d 343, 345 (6th Cir. 2006). 28. 274 S.W. 3d 451 (Ky. 2009). experience in handling cases against the Equal Opportunity 10. 448 F.3d 343 at 345. 29. Id. at 454. Employment Commission. Sales has 11. Id. See also Perry v. Thomas, 482 30. See the Court’s reliance on tried more than 20 cases to a jury U.S. 483, 492 n.9 (1987) quoted by Hoskins v. Maricle, 150 S.W. 3d verdict, and has argued more than the Court of Appeals for the propo- 1, 10 (Ky. 2004) (“a writ of prohi- 60 appeals to state and federal sition that that federal law requires bition may be granted ‘upon a appellate courts. He has repre- the enforcement of agreements to showing that … the lower court is sented employers in more than 50 arbitrate unless the savings clause proceeding or is about to proceed union organizing drives in 10 states. requires otherwise. outside of its jurisdiction and

March 2011 Bench & Bar 23 ARBITRATION

tion provision was ever reached. Subse- quent federal appellate decisions have confirmed this interpretation of Granite Rock.4 Thus, Granite Rock establishes that the resolution of disputed questions as to whether such an agreement was reached is not subject to determination by an arbitrator, and instead is a matter to be determined by a court. However, Granite Rock maintains that the presumption in favor of arbitra- tion remains applicable to determinations about the scope of a validly formed arbitration clause. To be By Richard H.C. Clay fests a presumption in favor of arbitra- sure, the Court appeared to downplay and Stephen J. Mattingly tion and that this presumption requires somewhat the strength and importance the scope of an arbitration clause to be of the pro-arbitration presumption. It ringing up arbitration at a cock- broadly construed.2 A recent United stated that it was “wrong to suggest that tail party is more likely to States Supreme Court case, Granite the presumption of arbitrability we B provoke yawns than excitement, Rock v. International Brotherhood of sometimes apply takes courts outside even when one is in the company of fel- Teamsters,3 may at first blush call into our settled framework for deciding arbi- low members of the bar. But as most question the continuing strength of this trability.”5 It stated that the Court had every litigator is aware, arbitration pro-arbitration presumption. A closer never held that the pro-arbitration pol- issues have become nearly ubiquitous in look at the case and a subsequent fed- icy overrides the principle that litigating everything from commercial eral court of appeals opinion, however, arbitration is strictly a matter of con- breach-of-contract disputes to employ- reveals that the presumption in favor of sent, and that courts may not “use ment-discrimination claims. In many arbitration is still intact. policy considerations as a substitute for cases, whether claims are subject to an party agreement.”6 Additionally, the arbitration agreement may be a “make Granite Rock v. International Court noted that any pro-arbitration or break” issue – one that can determine Brotherhood of Teamsters presumption is simply derived from the whether a lawsuit is worth bringing, Granite Rock is one of several cases conclusion that a broadly worded arbi- whether or when a defendant should set- decided by the United States Supreme tration clause reflects that the parties tle a case, or whether a particular Court in the last year that has the intended to arbitrate grievances defendant or cause of action should be potential to affect practitioners facing between them. included in a complaint. any number of arbitration-related Nonetheless, the Court ultimately The scope of an arbitration clause – issues. In Granite Rock, which was appeared to endorse the continuing via- i.e., what claims fall within the lan- decided in June 2010, the Court bility of this presumption whenever it is guage of the provision – frequently is endeavored to clarify the proper frame- determined that the parties have agreed the lynchpin issue in determining work for determining when particular to an arbitration clause and that the whether a party’s claims are subject to disputes are subject to arbitration. clause is ambiguous as to whether it mandatory arbitration. Those who While essentially synthesizing prior covers a particular dispute: “We have undisputedly entered into an agreement Supreme Court precedent, the Granite applied the presumption favoring arbi- to arbitrate have little hope of resisting Rock Court did stake out some new tration, in FAA and in labor cases, only arbitration unless they can argue suc- ground by elucidating several broad where it reflects, and derives its legiti- cessfully that their claims fall outside principles concerning the interpretation macy from, a judicial conclusion that the scope of the particular arbitration and enforceability of arbitration provi- arbitration of a particular dispute is what agreement. Traditionally, however, sions. First, the Court made it clear that the parties intended because their those arguing that their claims are out- the presumption in favor of arbitration express agreement to arbitrate was side the scope of a valid and has no applicability to the question of validly formed and (absent a provision enforceable arbitration clause have whether a contract containing an arbi- clearly and validly committing such faced an uphill battle with a limited tration clause was ever formed in the issues to an arbitrator) is legally likelihood of success. Courts have con- first place. Because arbitration is enforceable and best construed to sistently held that the Federal “strictly a matter of consent,” a court is encompass the dispute.”7 Arbitration Act (or an equivalent state required to address a party’s argument But the Court’s interpretation of the law, if the FAA does not apply1) mani- that no agreement containing an arbitra- particular arbitration provision at issue

24 Bench & Bar March 2011 – which required arbitration of any claims “arising under” the parties’ agreement – does somewhat call into question the way the pro-arbitration presumption has been applied by lower federal courts. The Supreme Court held that the parties’ dispute about when the agreement containing the arbitration clause was ratified was not itself arbi- trable because it could not be said that a dispute about when an agreement came into existence “arises under” that agreement.8 The Court mentioned that the “arising under” language was “rela- tively narrow,” and it rejected the Ninth Circuit’s reasoning that the clause was “susceptible of an interpre- tation” which would require the dispute to be arbitrated.9

Pre-Granite Rock law on the pro-arbitration presumption Thus, in the wake of Granite Rock, one might reasonably ask whether the Court’s decision will alter the long line of cases holding that a broad arbitration clause leads to a presumption that the parties agreed to arbitrate any disputes not clearly excluded from the terms of the agreement. One such typical pre-Granite Rock case is Kruse v. AFLAC International, where the United States District Court for the Eastern District of Kentucky compelled the plaintiff, Kruse, to arbi- trate her claims against AFLAC and other defendants.10 (In full disclosure, one of the authors was counsel to AFLAC in that case.) Kruse – a former regional sales coordinator for AFLAC – alleged breach of contract, violations of state and federal statutes, and a litany of common law claims, including promis- sory estoppel, conversion, fraud, defamation, and tortious interference. Kruse argued, among other things, that her claims other than the breach of con- tract claim fell outside of the scope of the arbitration agreement she had signed. That agreement required Kruse and AFLAC to arbitrate “[a]ny dispute arising under this Agreement to the maximum extent allowed by applicable law.” The court disagreed with Kruse and held that her claims were within the scope of this agreement. “The test to determine if a claim falls within the

March 2011 Bench & Bar 25 scope of an arbitration clause is to Kruse’s claims were covered by the arbitration agreements. It therefore determine if the factual allegations arbitration clause because the factual rejected Kroger’s argument that arbi- ‘touch matters’ governed by the parties’ allegations supporting the claims per- tration was inappropriate because the Agreement, not what claims the Agree- tained to Kruse’s contract with AFLAC subcontracting dispute at issue was ment specifically mentions as plaintiff in some way. outside of the scope of the parties’ contends.” The court relied in part on arbitration clause. The court held that prior Sixth Circuit cases holding that, A post-Granite Rock decision because the parties’ arbitration agree- where the parties agreed to arbitrate dis- A review of a recent Sixth Circuit ment was “susceptible to an putes “arising out of” the parties’ opinion suggests that, even after Gran- interpretation” that would provide for contract, any claim between them ite Rock, decisions like Kruse will arbitration of the dispute, the presump- should be arbitrated unless there is continue to be the norm whenever it is tion in favor of arbitration controlled.14 “clear intent to exclude a particular clear that the parties agreed to a broad The Kroger court did not reference claim.”11 arbitration provision. This opinion sug- or cite to Granite Rock, and it thus Because all of Kruse’s claims gests that the judiciary does not believe appeared to believe that Granite Rock touched on her business relationship Granite Rock altered the general rule did not require the Sixth Circuit to with AFLAC, and the agreement did that a broad arbitration provision is pre- revisit its general rules that a broad not manifest any intent to exclude any sumed to encompass any substantive arbitration clause triggers a presump- of her claims from arbitration, the court disputes between the parties that are not tion of arbitrability and that when found all of Kruse’s claims to be arbi- expressly excluded from arbitration by parties have agreed to such a provision, trable. The court specifically rejected their agreement. a dispute between them is arbitrable Kruse’s argument that claims were not In Teamsters Local Union No. 89 v. absent clear evidence that the parties arbitrable unless their subject matter Kroger, 617 F.3d 899 (6th Cir. 2010), a intended the particular dispute to be was specifically made arbitrable by the case decided two months after Granite non-arbitrable. As described above, this contract. Although Kruse argued that Rock, the Sixth Circuit reiterated its “susceptible to an interpretation” stan- the clause did not “govern disputes prior holdings to the effect that “where dard was at least obliquely called into beyond violation of specific terms of the agreement contains an arbitration question by Granite Rock, but the Sixth the Agreement,” the district court did clause, the court should apply a pre- Circuit in Kroger did not appear to not agree. Rather, it found that all of sumption of arbitrability, resolve any believe that Granite Rock would doubts in favor of arbitration, and require this standard to be revisited. Richard H.C. should not deny an order to arbitrate Additionally, the Sixth Circuit cited Clay is a partner unless it may be said with positive favorably to prior holdings that “arising in the Louisville assurance that the arbitration clause is under” language was broad – even office of Dins- not susceptible of an interpretation that though the Granite Rock Court termed more & Shohl covers the asserted dispute.”12 (internal such language “relatively narrow.” LLP, where he is citations omitted) The Sixth Circuit A federal district court in Missouri a member of the panel in Kroger stated that the pre- recently reached a similar result while Business and sumption in favor of arbitration is citing to Granite Rock. In Utility Work- Fiduciary Litiga- “particularly applicable” in cases ers Union v. Missouri-American Water tion Section. He is a graduate of involving broad arbitration clauses and Davidson College and the University that in such a case, “only an express Stephen J. Mat- of Kentucky College of Law. A for- provision excluding a particular griev- tingly is an mer president of the Kentucky Bar ance from arbitration or ‘the most associate in the Association (1998-99) and a former forceful evidence of a purpose to Louisville office KBA Annual Convention chair exclude the claim from arbitration’” of Dinsmore & (1991), Clay serves as Dinsmore’s can prevent a dispute from being arbi- Shohl LLP, Kentucky ethics and loss prevention trated.13 The court found that the where he is a partner. He has tried over 75 jury arbitration provision before it – which member of the trials to verdict, and has argued Business and over 35 appeals in the Sixth Circuit, required arbitration of “any griev- ance[,] dispute[,] or complaint over the Fiduciary Litigation Section. He is a the Kentucky Supreme Court and graduate of the University of Notre the Kentucky Court of Appeals. He interpretation or application of the con- tents of this Agreement” – was the type Dame and the University of has also handled a number of arbi- Louisville Louis D. Brandeis School of broad arbitration clause that would trations. His practice is focused on of Law. Mattingly has experience in trigger such a presumption. In so general business litigation, trust and the areas of business torts, medical doing, the court cited to prior cases estate disputes, broker/dealer malpractice defense, arbitration issues, drug and medical device liti- holding that agreements requiring arbi- agreements, criminal defense, fed- gation and appellate practice. tration of claims “arising under” and eral bank regulation, and insurance. “related to” an agreement were broad

26 Bench & Bar March 2011 Co.,15 the district court upheld an arbi- arbitrate, this does not mean that the trator’s determination that the parties’ arbitration agreement needs to enumer- broadly phrased agreement to arbitrate ate particular types of disputes to make encompassed a dispute over wage such disputes arbitrable. The holdings amount. The court observed that Gran- in cases such as Kruse – where the ite Rock “clarified the framework court held that arbitration is appropri- regarding the application of ‘the federal ate if the factual allegations underlying policy favoring arbitration.’”16 Never- a claim “touch matters” governed by theless, the Court favorably quoted the agreement – therefore appear to prior decisions for the proposition that remain sound even in light of Granite a broad arbitration clause triggers a pre- Rock. sumption that a dispute between the Because Granite Rock is little over parties is arbitrable “unless it may be half-a-year old, it may be that future said with positive assurance that the lower court decisions will begin to read arbitration clause is not susceptible of the decision more broadly. But for now, an interpretation that covers the it appears that prior decisions on the asserted dispute.”17 Like the Sixth Cir- scope of a broad arbitration clause cuit in Kroger, the district court did not remain good law. appear to believe that Granite Rock altered the application of the presump- ENDNOTES tion in favor of arbitrability in any 1. See, e.g., KRS 417.045 et seq. (the significant way. Kentucky Uniform Arbitration Act) 2. See, e.g., Glazer v. Lehman Bros., Ramifications Inc., 394 F.3d 444, 450 (6th Cir. What does this mean for the inter- 2005). pretation of the scope of arbitration 3. 130 S. Ct. 2847 (2010). provisions after Granite Rock? In 4. See, e.g., Janiga v. Questar Capital Granite Rock, the Supreme Court Corp., 615 F.3d 735, 741-42 (7th appeared expressly to hold that a pre- Cir. 2010) (holding that Granite sumption in favor of arbitration applies Rock “eliminated all doubt” about only when “a validly formed and whether a court is required to enforceable arbitration agreement is decide questions of whether an ambiguous about whether it covers the agreement to arbitrate was reached dispute at hand.”18 The Granite Rock in the first place). decision emphasized that the Supreme 5. Id. at 2859. Court “has never held that the presump- 6. Id. tion [in favor of arbitration] overrides 7. Id. at 2859-60. the principle that a court may submit to 8. Id. at 2862. arbitration ‘only those disputes . . . the 9. Id. parties have agreed to submit . . . .”19 10. 458 F. Supp. 2d 375 (E.D. Ky. Kroger provides a clear indication that 2006). courts do not appear to believe that 11. Id. at 387 (citing Cincinnati Gas & Granite Rock’s clarification of the law Elec. Co. v. Benjamin F. Shaw Co., requires alteration of the rule that cer- 706 F.2d 155, 160 (6th Cir. 1983)). tain broadly phrased arbitration 12. Id. at 904. provisions trigger a presumption in 13. Id. at 905. favor of arbitrability. 14. Id. at 909-11. Thus, provisions requiring arbitra- 15. 2010 U.S. Dist. LEXIS 111752; tion of any dispute “arising out of” or 189 L.R.R.M. 2718 (E.D.Mo. Oct. “relating to” a contract that governs the 22, 2010). relationship between parties will likely 16. Id. at *34. generally continue to be construed to 17. Id. (quoting United Steelworkers of encompass most any claim between the Am. v. Warrior & Gulf Navigation parties that “touches on” matters in the Co., 363 U.S. 574, 582-83 (1960)). contract. Even though a party may be 18. Granite Rock, 130 S. Ct. at 2858- compelled to arbitrate “only those dis- 59. putes” that the party has agreed to 19. Id. at 2851.

March 2011 Bench & Bar 27 of this county, and if elected, they will have conferred a favor upon me, for which I shall be unremitting in my labors to compensate. But if the good people in their wisdom shall see fit to keep me in the background, I have been far too familiar with disappointments to be very much chagrined.

He sounds like Woody Allen, Charlie Brown, or maybe Eeyore. Of course he lost. None need expect clarity of vision or a sense of the practical from a 23- year-old novice, but the next four years’ By Donald K. Kazee a demonstration, the public utility of experience would transform his writing. internal improvements. . . . In 1834, Lincoln did win election to the wo years ago, our Common- General Assembly and began studying wealth observed the bicentennial There follow 10 tedious paragraphs law. His colleagues in the legislature T of the birth of her estranged son, on the day’s issues: “internal improve- turned to the freshman to draft commit- Abraham Lincoln. On March 4th of ments” (we would call them tee reports and to articulate Whig this year, we marked the 150th infrastructure), public finance, usury, policies.3 Politics milled away his stud- anniversary of his inauguration as the education, and estray laws, as well as ied fugues, so that his letter announcing 16th president. On this second occa- on the candidate’s own youth and inex- his 1836 candidacy was a model of sion, we may reflect that the most perience. He gives the detailed merits directness: fundamental legal writings are neither of each side in turn, as if to appeal to court opinions nor the briefs that the holder of every opinion. His own In your paper of last Sunday, I see a inform them, nor the statutes and con- stance is a matter of suspense until the communication over the signature of stitutions upon which they in turn are merits are weighed, yet his choices are “Many Voters,” in which the candidates based, but are rather the conversations perplexing. Railroads are too expen- who are announced in the Journal, are between candidate and constituent sive, so dredging the river is preferable, called upon to “show their hands.” negotiating the contract of democracy. though that cost is yet unknown. As for Agreed. Here’s mine! Lincoln was master of that medium as limiting usury, candidate and president. But the pen This candidate needs no “established that yet appeals to our better angels to A law for this purpose, I am of the custom” to justify “my duty to make give our last full measure of devotion opinion, may be made, without materi- known to you . . . my sentiments with served an apprenticeship. That appren- ally injuring any class of people. In regard to local affairs.” The people have ticeship teaches lessons which bear on cases of extreme necessity, there could called for a show of hands and Lincoln all forms of legal writing. always be means found to cheat the law, wastes no words to offer his. Two letters announcing his candi- while in all other cases it would have its dacy for the Illinois legislature in 18321 intended effect. I would not favor the I go for all sharing the privileges of and in 18362 offer contrasts in writing passage of a law upon this subject, government who assist in bearing its style and effectiveness. In 1832, Lin- which might be very easily evaded. Let burthens. Consequently, I go for admit- coln introduced himself with earnest it be such that the labor and difficulty of ting all whites to the right of suffrage, erudition: evading it, could only be justified in who pay taxes or bear arms (by no cases of greatest necessity. means excluding females). Fellow-Citizens: Having become a candidate for the honorable office of Oscar Wilde might have written it for Lincoln begs no one’s participial par- one of your representatives in the next Lady Bracknell. don to speak: “I go for . . . .” What he General Assembly of this state, in At length Lincoln closes, adamant for goes for first are not six serpentine para- accordance with an established custom, diffidence: graphs on dredging the Sangamon, as in and the principles of true republican- 1832. He goes for broad democracy, ism, it becomes my duty to make known I was born and have ever remained saving the Sangamon for later. to you–the people whom I propose to in the most humble walks of life. I have Lincoln was running as a Whig in a represent–my sentiments with regard to no wealthy or popular relations to re- heavily Democratic state, depending for local affairs. commend me. My case is thrown support upon Democratic friends. The Time and experience have verified to exclusively upon the independent voters hallmark of Jacksonian Democracy was

28 Bench & Bar March 2011 the expansion of suffrage beyond the and the free and equal living. To listen and to exercise judgment is elites by removing property require- Having embraced the best of Jack- the pledge of representative govern- ments for white men to vote.4 For many sonian Democracy, Lincoln takes one ment. If Lincoln is elected, he will have Whigs, especially elites and Easterners, sentence to spurn the worst: heard the people to “go for” internal white manhood suffrage invited the bar- improvements financed by the sale of barians within the gates.5 By contrast, If elected, I shall consider the whole federal lands. The federal undertaking the Northwest was so egalitarian that people of Sangamon my constituents, as of internal improvements was, in fact, there was even debate on opening the well those that oppose, as those that the Whigs’ signature issue in opposition vote to non-naturalized Irish laborers as support me. to President Jackson, who had famously a way to attract settlers.6 A part of both vetoed the Maysville Road project in debates was the injustice of calling men Jacksonian Democracy had been Kentucky.12 From the Nullification Cri- to militia service without granting them built on the victor taking the spoils. Lin- sis to the Second Bank of the United the right to vote.7 coln is no victor if he alienates the States, debate in the 1830s focused on Lincoln finesses the divisiveness of Democrats. Lincoln’s Democracy what the Constitution denied one sover- labels by adopting an expansive view of includes “the whole people,” regardless eign or another the power to suffrage in terms nearly everyone could of whom they supported. He will bear accomplish. But in Lincoln’s letter, the support. In two sentences, he declares a malice toward none as the servant for Constitution permits each sovereign to fundamental equation of privilege with all. What are the duties of the people’s work in its own sphere, yet in tandem to burden and specifies those burdens servant? finance the people’s progress without which earn the bearer a vote. He thus resorting to debt. Finding a way for the affirms the elimination of the property While acting as their representative, I sovereigns to work in tandem, and the qualifications which Illinoisans had shall be governed by their will, on all money to finance it, would be the great come westward to escape.8 He offers a subjects upon which I have the means of task of his presidency. voice to the foreigner as well. He allows knowing what their will is; and upon all Finally, that even women might earn the fran- others, I shall do what my own judg- chise.9 ment teaches me will best advance their If alive on the first Monday of Lincoln’s equation of privileges with interests. Whether elected or not, I go November, I shall vote for Hugh L. burdens marks the means by which 18th for distributing the proceeds of the sales White for president. century privileges and immunities held of public lands to the several states, to by the propertied became 21st century enable our state, in common with oth- With message accomplished, Lin- rights held by all. As Whigs followed ers, to dig canals and construct rail coln delivers a punch line worthy of Democrats to embrace a broader democ- roads, without borrowing money and Stephen Colbert. First, he signals a racy, earning a stake in the democracy paying interest on it. joke with the utmost somber piety: “If by taxes or arms brought into the fold hardscrabble whites like Lincoln, city dwellers without real property, aliens, and, in principle, women.10 Lincoln’s equation is significant not for the race restriction that strikes today’s reader, but for being as expansive as it was. By operation of a fundamental principle, previously foreclosed classes could earn Mediation Center/Business Consulting/Training Center 1129 W. Lexington Avenue, Winchester, KY 40391 that stake in democracy. Phone: 859-744-6399 Lincoln articulates that principle www.appalachianpeacecenter.com • [email protected] without mentioning either Whigs or MEDIATION Services, 40 HR Mediation Training, Arbitration Services, Cooperative Democrats, or property or citizenship. Parenting and Divorce Classes, Cooperative Parent and Divorce Leader Training, Yet all are encompassed within an Bully NO MORE Workshops, Active Parenting 1, 2, 3, and Step-Family Workshops… appeal to the universal, without naming CALL for more information. any category, save race. African-Ameri- 2011 TRAINING DATES: can suffrage simply was not on the Cooperative Parenting and Divorce Leader Training — April 15, 2011 horizon in 1836.11 Decades later, when a *Family Mediation Training — May 20, 21, 22, 23, 2011 stake for African-Americans was Lin- Experienced trainers and mediators, held over weekends coln’s purpose at Gettysburg, he again so less work missed and great food! spoke in the universal. There was no Anger Management Classes offered beginning February 1, 2011! North, no South, no conqueror, no *This program has been approved for 38.75 CLE credits slave. There were only the honored dead of which 3.50 are Ethics Credits.

March 2011 Bench & Bar 29 alive . . . .”13 Then he pledges to vote seven sentences, Lincoln offers a con- hand earns, he is my equal and the for the Senator playing Lucifer to Jack- tract of democracy between voters and equal of Judge Douglas, and the equal son’s God. White was an erstwhile their servants, plus a policy for progress of every living man.16 Tennessee Democrat who had suc- based on a practical reading of the Con- ceeded to Andrew Jackson’s Senate stitution. He tells us plainly what he is When African American hands seat. He did Jackson’s bidding in the for. He satirizes what he is against with turned to defending the Union following Senate until the Tennessee legislature a zinger. the Emancipation Proclamation, most nominated White for president in 1835, Fourth, the divisive and inflammatory famously at Fort Wagner, Lincoln an office that Jackson held in gift for can be given a more thoughtful recep- understood what privilege had been Martin Van Buren. Cast into outer tion by appeal to fundamental principles earned: darkness, White was named by the rather than surface flash points. Whigs as one of three regional candi- It will then have been proved that dates in an effort to total more electoral I go for all sharing the privileges of among free men, there can be no suc- votes than Van Buren. Imagine Hillary government who assist in bearing its cessful appeal from the ballot to the versus Al Gore in 2000; Scooter Libby burthens. Consequently, I go for admit- bullet; and that they who take such versus Dick Cheney in 2008. White ting all whites to the right of suffrage, appeal are sure to lose their case, and did not even run in Illinois,14 but that who pay taxes or bear arms (by no pay the cost. And then, there will be made Lincoln’s barb the more outra- means excluding females). some black men who can remember geous. Without mentioning party that, with silent tongue and clenched labels, Lincoln skewers Jackson and Earning the privilege by bearing the teeth, and steady eye, and well-poised makes even Democrats laugh. burden applied well enough to the land- bayonet, they have helped mankind to These two apprentice letters may less or to the foreigners who shared the this great consummation; while, I fear, serve our own apprenticeships as load of building and defending Illinois, there will be some white ones, unable to lawyers: but the principle transcended the issues forget that, with malignant heart, and First, less is more. of 1836. As Lincoln grew toward his deceitful speech, they have strove to Second, there is more to less than role as Emancipator, he constantly hinder it.17 meets the eye, and ultimately it meets revisited the principle of earning one’s the mind. Each sentence speaks in a rights by bearing the burden. While it is Having borne the burden of battle in context calling upon the reader to sup- indisputable that he held the contempo- 1863, African Americans had, in Lin- ply meaning that he may more readily raneous racial assumptions that we find coln’s eyes, earned privileges that only accept in his own voice than in the repugnant today, they are repugnant a new contract of democracy could writer’s. today only because he held to the equa- secure. At Gettysburg, he invoked the Third, the whole is more than the tion of privilege and burden despite the fundamentals to propose that new con- sum of its parts. We have examined the near universality of those racial views tract for a new nation, conceived in 1836 letter sentence by sentence. Now among whites: liberty, and dedicated to the proposi- read the italicized text of that letter tion that all men are created equal. aloud. There is a structure pendant upon I agree with Judge Douglas that he Just as the apprentice had appealed to the call of the people. The electors hav- [the negro] is not my equal in many the fundamentals to remove distinc- ing earned their franchise are owed a respects–certainly not in color, perhaps tions among whites in 1836, the master duty by the elected to listen to the not in moral or intellectual endowment. used those fundamentals in 1863 to whole people and to “dare to do our But in the right to eat the bread, without reach beyond the day’s racial assump- duty as we understand it.”15 In only leave of anybody else, which his own tions toward a government of, by, and for the people, the undifferentiated people, the one people, the “whole Gary M. Weiss people.” Lincoln lived to shepherd the Mediation Thirteenth Amendment through Con- When it’s a question of persuasion... gress as the first chapter in the new Gary Weiss has a passion to come to the right result. contract of democracy, thereby earning Listed in Best Lawyers One of few mediators his own emancipation and that of his in America; who maintains an nation as well. Personal Injury active practice Fifth and finally, the finale is very Legal Malpractice so he knows the final. What do you want the reader to And now one of only eight present value of cases Kentucky lawyers named repeat as the book is closed? Compare for mediation/arbitration Principal Address Louisville Lincoln’s apology for breathing in 1832 with the howling Whig one-liner in Tele: (502) 493-1394 E-mail: [email protected]@aol.com 1836. Yet we may here profit not only

30 Bench & Bar March 2011 from the works of the apprentice, but every man that walks, we have nizes that a qualification not based from that of the master, pleading for placed the power in the hands of on gender has applicability to peace on March 4, 1861: those who have neither property, women as well as men. Fidelity to talents, nor influence in other cir- principle could transcend conven- I am loth to close. We are not ene- cumstances, and who require in tional categories. mies, but friends. We must not be their public officers no higher qual- 10. Keyssar 28-37. enemies. Though passion may have ifications than they possess 11. Donald 59; Keyssar 44-47. strained, it must not break our bonds of themselves. It would be a disgrace 12. In the Illinois legislature just con- affection. The mystic chords of memory, to the city and to republicanism if a cluded, Lincoln had cast the swing streching from every battle-field, and ticket so utterly unworthy as theirs vote to finance badly needed rail- patriot grave, to every living heart and should succeed. . . . We cannot roads and river transportation with hearth-stone, all over this broad land, believe that we are so soon reduced state bonds, despite his prior reser- will yet swell the chorus of the Union, to the condition of the Romans, vations on public debt. As events when again touched, as surely they will when the popular voice was raised would prove, the Panic of 1837 be, by the better angels of our nature.18 against every honorable distinction; would shatter Illinois’ massive pub- a voice which finally prevailed, to lic debt and Lincoln would be At the close of Inauguration Day in the utter extinction of the Repub- subject to his share of the blame. 1861, none could have foreseen the lic.” New York Journal of Donald 59, 61. countless patriot graves awaiting, nor Commerce, November 7, 1829, 13. From our own perspective, any Illi- how this president’s words would in reprinted in 5 A Documentary His- noisan pledging to vote only if alive time write upon every heart and hearth- tory of the American Industrial deserves to be called Honest Abe. stone. The 1836 letter is among the Society 154-155 (John R. Com- 14. William Henry Harrison was the most important documents in all of mons, et al., eds., Cleveland, Arthur Whig candidate in Illinois in 1836, American politics and law. It is a first H. Clark Co. 1910-1911). but Martin Van Buren carried Illi- draft for Gettysburg. It not only gives us 6. The Illinois Supreme Court nois and the election. an example of spare, strong style, it affirmed the non-citizen’s right to 15. Cooper Union Address, February teaches a lesson in how a writer can vote in 1840, as the 1818 constitu- 27, 1859. Lincoln: Selected convey a message larger than the text tion and related statutes referred to Speeches and Writings 251 (Don itself. It reveals the “principles of true “inhabitants.” Spragins v. Fehrenbacher, ed., Vintage Books republicanism” by which a fledgling Houghton, 3 Ill. 377, 408 (1840) 1992). legislator became the Lincoln that (argued for the Irish by Stephen 16. First Debate, Ottawa, Illinois, belongs to the ages. Douglas). The 1848 Illinois Consti- August 21, 1858. Lincoln: Selected tutional Convention imposed a Speeches and Writings 153 (Don ENDNOTES citizenship requirement, rejecting a Fehrenbacher, ed., Vintage Books 1. “To the People of Sangamo strong effort to guarantee that right 1992). County,” March 9, 1832. Lincoln: to non-citizens in the new constitu- 17. Letter to James C. Conkling, Selected Speeches and Writings 3-7 tion. Keyssar 27, 32. August 26, 1863. Lincoln: Selected (Don Fehrenbacher, ed., Vintage 7. Keyssar 30-32. Speeches and Writings 393 (Don Books 1992). 8. While property qualifications had Fehrenbacher, ed., Vintage Books 2. “To the Editor of the Sangamo been commonplace in the East, 1992). Journal,” June 13, 1836. Lincoln: neither the Illinois constitutions of 18. First Inaugural Address, March 4, Selected Speeches and Writings 7-8 1818 or 1848 imposed any prop- 1861. Lincoln: Selected Speeches (Don Fehrenbacher, ed., Vintage erty or tax qualification on voting, and Writings 284 (Don Fehren- Books 1992). although municipalities could. bacher, ed., Vintage Books 1992). 3. David Herbert Donald, Lincoln 54 Keyssar 24-26. (Simon and Schuster 1995); Fred 9. David Herbert Donald considers Kaplan, Lincoln: The Biography of the parenthetical a throw-away Donald K. Kazee is a graduate of the a Writer 60-61 (HarperCollins joke. Donald 59. Yet Whigs had to Georgetown University Law Center 2008). grapple with the consequences for and is a member of the Kentucky 4. Alexander Keyssar, The Right to tax-paying women if the franchise and District of Columbia Bar Associ- Vote: The Contested History of was a right that could be earned. ations. He has taught at Northern Kentucky University Salmon P. Chase Democracy in the United States 41 Keyssar 36-37. A joke in the foun- College of Law since 1989. During (Rev. ed. Basic Books 2009). dation paragraph of this tautly the Lincoln Bicentennial, he taught 5. As the New York Journal of Com- structured letter is wholly out of Lincoln’s Constitution at Chase Col- merce had declared: place; Lincoln saves his humor for lege of Law. “By throwing open the polls to the end. Rather, he explicitly recog-

March 2011 Bench & Bar 31 COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION

IN RE THE MATTER OF:

HON. TAMRA GORMLEY, FAMILY COURT JUDGE 14TH JUDICIAL CIRCUIT

By agreement of the Commission and Judge Gormley: 1. Counts 1, 2, 3, 4, and 6 (and any claims and charges brought or which could have been brought relating thereto) are dis- missed with prejudice. 2. As to Count V, Judge Gormley acknowledges the following: a) After the Court of Appeals entered its Opinion, the Woodford County Attorney filed a motion to have a Special Judge appointed to have the matter transferred to Rowan County for child support purposes. b) Judge Gormley heard the matter on 3/11/10 and stated that she would take the motion under advisement. c) Judge Gormley did not rule on the motion until August 3, 2010, when she asked for the appointment of a Special Judge. Judge Gormley acknowledges that these facts, without further explanation, constitute a failure to comply with the Judi- cial Canons. 3. As to Count V, the Commission imposes and Judge Gormley accepts a ten day suspension without pay. This suspension shall run concurrently with the prior suspension of Judge Gormley now pending on appeal before the Kentucky Supreme Court. This suspension shall be served even if the Supreme Court reverses the previous suspension.

Agreed to this 12th day of January, 2011

Hon. Tamra Gormley Stephen D. Wolnitzek, Chair Judicial Conduct Commission

32 Bench & Bar March 2011 COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION

IN RE THE MATTER OF:

ALLAN RAY BERTRAM, CIRCUIT JUDGE ELEVENTH JUDICIAL CIRCUIT, DIVISION II

ORDER OF PUBLIC REPRIMAND

Allan Ray Bertram is Circuit Judge for Kentucky’s Eleventh Judicial Circuit composed of Taylor, Marion, Washington, and

Green Counties. Judge Bertram has waived formal proof and has agreed to accept the disposition made in this order.

After receiving complaints and conducting an investigation, the Commission determined that Judge Bertram failed to render timely decisions in a number of cases.

The Kentucky Code of Judicial Conduct, SCR 4.300, Canon 3B(8), provides: “A judge shall dispose of all judicial matters promptly, efficiently and fairly.” The Commentary points out that Canon 3B(8) requires judges to be “expeditious in determin- ing matters under submission.”

There was a pattern of delay in cases under submission in all four counties of Judge Bertram’s circuit. In these matters,

Judge Bertram violated 3B(8) of the Code of Judicial Conduct by failing to dispose of judicial matters promptly and efficiently.

In making the determinations in this order, the Commission duly considered that Judge Bertram had no prior infraction and that he met with the Commission and discussed his docket in an attempt to address the delays, he changed his practices as rec- ommended, and addressed the cases in question. The Commission will continue to monitor Judge Bertram’s court as to the sta- tus of his case docket.

IT IS HEREBY ORDERED that for the foregoing violations Judge Allan Ray Bertram is hereby publicly reprimanded.

DATE: January 14, 2011 STEPHEN D. WOLNITZEK, CHAIR

AGREED TO :

ALLAN RAY BERTRAM

March 2011 Bench & Bar 33 THANK YOU TO MR. DEL O’ROARK ulaney L. “Del” O’Roark, Jr., has He has lectured in the KBA’s New elsewhere, a dedicated advocate for the advised the Bench & Bar that as Lawyers Program, addressed countless ethical practice of law, an ally of Dpart of “taking the next step district bar meetings, and has taught ethical practitioners and, finally, a toward retirement” he has contributed professional responsibility at both the teacher. the last of 59 articles University of Kentucky College of Law He says he gathered his curriculum on the subject of and the University of Louisville’s by working with policy-makers at professional Brandeis School of Law. Lawyers Mutual, by attending national responsibility over O’Roark has made a lifetime study of conferences on the subject, by what he the past 20 years. what can go wrong for lawyers. He said learned from preparing and giving his O’Roark was the in conversations about his retirement lectures at law schools, and with direct first employee and that a “huge majority, more than 90 exchanges with Kentucky lawyers. first chief operating percent – almost all – lawyers are as Like his father, O’Roark had a career officer of Lawyers ethical as they can be. The percentage as an officer in the U.S. Army. He Mutual, the KBA-sponsored of lawyers with ethical problems is retired as Brigadier General in 1989. He professional malpractice carrier. miniscule.” is married to Jane O’Roark, the couple O’Roark served as the chair of the In his articles for the Bench & Bar has three children and five KBA’s Ethics 2000 Committee and in his quarterly newsletters for grandchildren, and reside in eastern responsible for recommending to the Lawyers Mutual, O’Roark, has kept Jefferson County. Board of Governors numerous changes Kentucky lawyers reliably informed of In retirement, O’Roark plans to to the 1990 Kentucky Rules of trends in the three components of his consult with Lawyers Mutual on a part- Professional Conduct. These specialty: professional responsibility, time basis, continue bar service as a recommendations led to the malpractice, and risk management. member of the KBA Member Services implementation of the 2009 Revised In his articles, work-a-day Kentucky Committee and the newly established Kentucky Rules of Professional practitioner readers have found insights Paralegal Committee, while indulging his Conduct. on ethical issues not readily obtained passions for reading and gardening.

34 Bench & Bar March 2011 THANK YOU to the Kentucky Bar Foundation Directors and the Kentucky IOLTA Fund Trustees for the dedication and time devoted to ensure the continuing success of both programs.

KENTUCKY BAR FOUNDATION

OFFICERS BOARD OF DIRECTORS

John W. Stevenson Gerald L. Bell President John D. Bertram John N. Billings John R. Martin, Jr. David A. Brennen President Elect Martha L. Brown Keith M. Carwell Eileen M. O’Brien Charles H. Cassis Vice President Judge Elizabeth Chandler Frank P. Doheny Jane Adams Venters Diana Kay Douglas Secretary/Treasurer William G. Francis Fred E. Fugazzi, Jr. Phillip M. Moloney Dennis R. Honabach Immediate Past President Catherine C. Hughes Edward M. King Charles E. Ricketts, Jr. Norvie Lay IOLTA Chair Frank Hampton Moore, Jr. Harry D. Rankin Tasha Kay Scott Jonathan C. Shaw Kentucky Bar Foundation Bruce E. Smith 2010 Grants Virginia J. Southgate $227,750 E. Frederick Straub, Jr. Judge Jeff S. Taylor J. Guthrie True Judge Thomas D. Wingate

BOARD OF TRUSTEES I Charles E. Ricketts, Jr., Louisville (Chair) Ken R. Haggard, Hopkinsville (Vice Chair) O Laura A. D'Angelo, Lexington (Treasurer) Justice Lisabeth Hughes Abramson, Louisville Stephen C. Cawood, Pineville Kentucky IOLTA Fund L Luther Deaton, Jr., Lexington 2010-2011 Grants Rhonda W. Huddleston, Warsaw $590,000 Anita P. Johnson, Pikeville T Scott D. Laufenberg, Bowling Green Thomas L. Rouse, Erlanger A John W. Stevenson, Owensboro

SHOP TALK

Socializing Media – The Adoption of Social Media By Professionals

Michael Losavio ocial Media” are more and more But a cautious, planned approach is ply with the general rules, such as those “S a part of professional and per- advised for professionals stepping into on truthfulness. The Kentucky judicial sonal life. Some jump in while others this arena. ethics authorities permit a judge to have wait to see what happens to those that First and foremost, there are ethical, a Facebook page and “friend” people jump in.” It is a recurring story with all legal and reputational risks in jumping in without that by itself raising questions of technologies. Yet we must consider the the social media sea of information. bias; other states differ on this. velocity, scope and scale of these Participation means putting information This debate is a vitally important changes. In less than a generation we’ve out in the world with your name on it for one. In the electronic marketplace of gone from a world-wide network on all the world to see. The curious privacy ideas, is it really a good idea to limit the your desk to one in your palm. and intimacy of a computer interface has participation of those professionals These technologies have a special tricked many into saying things care- trained in reasoned analysis of impor- impact due to the creation, exchange and lessly with harsh consequences. Thought tant issues? Just as the participation of use of data, information and knowledge. and publication are almost simultaneous lawyers, judges and other professionals Using the Twitter system for short state- and nearly permanent, cached and stored in civic groups enriches the civic effec- ment instant messaging and notice, you all over the Internet. tiveness of those organizations, that can be informationally linked to some- So a reputation can be damaged in same participatory discourse can help one or something as if right next to you. seconds. Especially for those with suc- with the online conversation. Too many Whether you want this or not is cessful and popular media, as the faux online discussions veer into hyperbole, another matter. pas is heard by so many people instantly. malice and the bizarre; a lawyer’s care- The impact of social media goes even Informational tort issues also crop up, ful comments could help avoid that. further. This expanded information like defamation, invasion of privacy and exchange affects relationships across false light. For a professional, the busi- Testing the Waters many domains. All kinds of relationships. ness aspects of information publication Adopting social media is much like While some social media may focus on may raise risks of misleading or decep- a strategic planning session for business narrow matters, the hugely successful tive trade practices or other forms of or litigation, where you weigh the bene- ones open up to the wide range of human misrepresentation or, in some cases, mal- fits against the risks, including interests, needs and aspirations. Just like practice/professional liability exposure. compliance with legal and ethical stric- successful societies. It’s not about social- For professions with effective and tures. One key factor to keep in mind is izing but about building a society. enforced codes of professional ethics, that social media are not only about this can be very risky. Most ethics codes business but all the forms of relation- Jumping In developed well before these new, amaz- ships folks might have. Casual play with these media tech- ing media made everyone a First First, you need to list why you would nologies may be a good way to test Amendment publisher, so how they want to participate in a social media them and see what benefit, if any, they apply may be an open question. This is environment, the standard goals-and- offer. We all recall innovative systems especially tricky for lawyers, where 50 objectives exercise. What can the easy that seemed so promising yet just never different bar associations may choose to and quick exchange of information do made it in the marketplace of ideas and interpret the rules many different ways, for you? That might be of help with: services. While Facebook is a growing, whether they relate to client relations, 1) professional and practice excel- important player in the social media candor or “advertising.” lence; space, its predecessor, MySpace, is Kentucky has been an innovator in 2) business development; shrinking. An informed guess about the this regard. The professional rules 3) professional and community rela- future of a technology helps reduce the expressly permit lawyers to participate in tionships; odds you’ll put your time and money weblogs without that being considered 4) friends; and, into an also-ran. “advertising.” The lawyer must still com- 5) family.

36 Bench & Bar March 2011 This is a non-exclusive starter list, that support these goals. LinkedIn again, if you are listed by your name but it is certainly broader than the “busi- (www.linkedin.com ) is a social media and profession, check to see there are ness development” mantra that’s used to site expressly for business networking. no conflicts over advertising restric- promote social media for professionals. Samantha Collier’s Social Media for tions. Business is very, very, very important, Lawyers blog, www.socialmediafor You might then try these services out but it’s not all about business. And often lawfirms.com, succinctly lists tips for on a purely personal basis to avoid the isn’t. Nicole Black, in her piece “Five optimizing one’s LinkedIn profile, the ethics/law entanglements. But remem- Things Lawyers Should Know About variety of LinkedIn applications that ber that the ethics rules follow you Social Media,”i notes “people want to may benefit an attorney in many areas everywhere. Florida, apparently, is now hire people, not a business” and that the and image improvement for one’s including social media site reviews of mix of social and professional make for Facebook through use of a “landing bar candidates as part of the character happier clients and happier lawyering. page” for first time visitors. and fitness examination. And happier lawyering is a good thing. Lastly check what others are doing But to get the most out of social Second, start thinking about due dili- and then try it yourself. Social media media requires full participation. Tyson gence and risk analysis, the are useful for getting others opinions on Snow, the Social Media Lawyer, ethical-legal-reputational chestnut that everything, including social media. It’s (www.thesocialmedialawyer.word may get roasted in the pursuit of these like a mini-jury deciding on the merits. press.com) says that the issue needs to goals. But not too hard, yet. What others say can guide you. be considered in a different and not Third, research the tools that are And then you try it yourself. purely commercial light: available that may assist with these Carefully. With a list of the rules of “Maybe the question needs to change goals. There is a wide range of systems professional responsibility, for all the from: ‘What has social media done for for social information exchange and pertinent regulatory authorities, next to me today?’ to ‘What have I done for some are better suited for a particular you. Especially the “Advertising” rules, social media today?’ If you make valu- goal than others. For example, for pro- as “Your Name” next to “Lawyer” or able contributions to the medium, the fessional and practice development the other professional designation may fall medium will reward you in spades.” JDSupra site (Give Content. Get under those rules, regardless of how As in not what your country has done Noticed., at www.jdsupra.com) let’s attenuated it may seem to you. for you but what you have done for members upload and share legal docu- Many of these services can be used your country. Or society. Or community. ments of all types, from employment in a passive manner whereby you Or family. law to civil procedure. Legal update receive information but don’t have to The potential for many good things. features are available. submit such. This can reduce the risk JDSupra highlights an important of a misstep while testing the benefits. ENDNOTE aspect of professional life that some- But even their lawyers must be careful; 1. http://nylawblog.typepad.com/ times gets lost in the maelstrom of in some circumstances even the receipt suigeneris/2009/06/five-things- work; lawyers helping lawyers helps us of information may run afoul of ethics lawyers-should-know-about-social- and everyone else. rules, like where that access to infor- media.html. Last visited Feb. 14, Other sites may offer other features mation is acquired through deceit. And, 2011 Mark your calendar June 15-17, 2011 KBA Annual Convention Lexington

March 2011 Bench & Bar 37 SUPREME COURT OF KENTUCKY ADOPTS UNIFORM RULES FOR FAMILY LAW CASES STATEWIDE or the first time, the Supreme Court ment the Family F of Kentucky has adopted uniform Court amendment rules for family law cases statewide, to our Constitution, Chief Justice of Kentucky John D. which established Minton, Jr., and Deputy Chief Justice our Family Mary C. Noble announced at a news Courts,” Justice conference held January 13 at the state Noble said. “As Capitol. time passes, we The Family Court Rules of Procedure grow closer to hav- and Practice apply to all family law ing a true cases, which are handled by Family statewide Family Court judges in 71 Kentucky counties Court system. This and by circuit and district judges in the is a developmental 49 other counties without a Family project we are Justice Mary C. Noble and Chief Justice John D. Minton, Jr., Court. Family law cases include such mindful of and discuss the new Family Court Rules during a recent press matters as divorce, termination of determined to conference held in the chambers of the Supreme Court of parental rights, domestic violence, child achieve.” Kentucky in the state Capitol. support, juvenile status offenses, adop- The new family tion, and dependency, neglect or abuse. law rules were developed with input formed to provide input and recommen- The rules became effective Jan. 1, from stakeholders, including Supreme dations for drafting the new rules. The 2011, and will have a significant impact Court justices, Court of Appeals judges, subcommittees were chaired by judges on the practice of family law in Family Court judges, circuit and district and included representation from the Kentucky. judges, domestic relations commission- courts, social services, attorneys and Previously there were no statewide ers, circuit court clerks, family law other family law professionals. rules specifically for family law cases. attorneys, the Cabinet for Health and The recommendations for the pro- Judges followed the Supreme Court Family Services and community part- posed rules was presented to the Civil Rules and created local family law ners, including children’s advocacy Supreme Court in April 2010 and pub- rules for their jurisdiction. The new groups. lished in the Kentucky Bar Association rules are based on best practices in The process began in May 2009, magazine, Bench & Bar, in May. All domestic and child welfare cases in when the Supreme Court and the attorneys licensed to practice in Kentucky courts. They provide a uni- Administrative Office of the Courts Kentucky receive the magazine. form set of rules for judges, attorneys jointly hosted a Civil Rules Conference Attorneys had the opportunity to provide and parties to follow statewide to help to gather information from judges and input on the proposed rules at a hearing ensure safety, permanency and well- domestic relations commissioners to during the KBA Convention in June. being for children and families. assist with drafting the rules. The con- Domestic and child welfare cases are “These rules will change the way ference focused on identifying the best handled by Family Court judges in the family law is practiced in Kentucky,” practices in rules for family law cases 71 Kentucky counties with a Family Chief Justice Minton said. “The many and developing these rules as the stan- Court. In the 49 other counties, the Kentucky citizens involved in family dard for all Kentucky courts. cases are handled by circuit and district law proceedings – some of the most Approximately 80 justices, judges and judges. sensitive and difficult cases to come domestic relations commissioners par- The proposed rules and feedback before our courts – will benefit from the ticipated in the discussions. They from the KBA Convention were pre- dedication and vision of Justice Noble covered the areas of divorce and prop- sented to the Supreme Court in and all those who assisted with drafting erty; domestic violence; paternity; status October 2010. The court voted in these rules.” offenders (juveniles who commit non- November to adopt the rules. A com- Justice Noble headed the initiative to criminal acts such as running away from plete listing of the rules was published develop and recommend uniform rules home); dependency, neglect or abuse; in the November 2010, issue of the as chair of the Supreme Court Civil adoption and termination of parental Bench & Bar. Rules Committee. The Family Court rights; and child custody, visitation and Rules are a section of the civil rules. child support. Information provided by Public “These rules represent the ongoing As a result of the conferences, six Information Specialist Jamie Ball of the efforts of the Court of Justice to imple- multidisciplinary subcommittees were Administrative Office of the Courts.

38 Bench & Bar March 2011 ATTENTION: Amendment and Deletion to the Regulations of the Attorneys’ Advertising Commission, pursuant to SCR 3.130(7.03)(5)(a)

As approved by the KBA Board of Governors January 14, 2011

Publisher’s Note: Supreme Court Rule (SCR) 3.130 contains the Kentucky Rules of Professional Conduct which include rules on lawyer advertising. SCR 3.130(7.03) establishes an Attorneys’ Advertising Commission (the “Commission”) which has general responsibilities for implementing the lawyer advertising rules. In discharging its responsibili- ties, the Commission is given authority to issue and promulgate regulations subject to prior approval by the Board of Governors. When proposed regulations are issued, members of the Kentucky Bar Association are entitled to at least sixty (60) days advance notice and an opportunity to comment. The Commission, with approval of the Board of Governors, has promulgated an amendment to Regulation 2. It has also approved deletion of Regula- tion 3 because it has been superseded by amendments to the requirements of SCR 3.103(7.25). The Board of Governors approved these changes for publication on July 30, 2010. The amendment and deletion to the Regu- lations were published for comment in the September 2010 issue of the Bench & Bar. No comments were received. On January 14, 2011 the Board of Governors gave final approval for the changes to be implemented as originally published.

The following changes to the Regulations will be effective April 15, 2011.

The full Regulations of the Commission may be viewed at www.kybar.org, along with Frequently Asked Questions.

AAC Regulation No. 2: PERMISSIBLE CONTENT OF ADVERTISEMENTS SUBMITTED WITHOUT A FEE Pursuant to SCR 3.130-7.05(1)(a)(26) the Commission may specify additional information that may be con- tained in advertisements that are permitted to be submitted without a fee. The following additional information may be included in any of these advertisements: …

11. The website address of a lawyer or law firm’s website advertisement, if the website has been submitted as required by SCR 3.130(7.05); …

Note: The only change is to subsection 11. The remaining portions of this Regulation were not amended. They may be viewed at www.kybar.org.

AAC Regulation No. 3: COMMUNICATIONS THAT REQUIRE THE DISCLAIMER “THIS IS AN ADVERTISEMENT” Deleted

March 2011 Bench & Bar 39 KENTUCKY BAR NEWS

Salmon P. Chase native, Wright was unable to accept his themselves in public interest work – for award in person because he was in India the 2006-07 academic year. College of Law advancing the Secretary of Commerce’s As a member of the Chase faculty, then upcoming High-Tech Trade Singleton will teach complex problem Mission. solving; facts, storytelling & persuasion; By Amber Potter and contemporary issues in criminal jus- NKU Chase College of Law Chase Welcomes New Faculty tice. He will continue to oversee Communications Coordinator Member Chase’s Constitutional Litigation Clinic, David Singleton, executive director which allows third- and fourth-year stu- Chase Alumni Receive Awards of the Ohio Justice and Policy Center dents to handle OJPC cases in federal ongressman Steven J. Chabot ’78 (OJPC) in Cincinnati, will join the and state court with supervision and Creceived the NKU Alumni Chase faculty as a tenure-track assistant guidance. Association’s Outstanding Chase professor of law in the fall 2011. He Alumnus Award and Jonathan P. will also retain his position as the Chase Team Finishes as National Wright ’06 received OJPC’s executive Arbitration Competition Runner-up the Outstanding director. NKU Chase College of Law’s Young Alumnus Singleton received Arbitration Team finished in second Award at the univer- his J.D., cum laude, place at the American Bar Association’s sity’s annual Alumni from Harvard Law National Arbitration Competition held Awards Banquet held School in 1991 and January 21-22 in Chicago, Ill. The team January 28. his A.B. in Economics earned the right to compete in the Congressman and Public Policy national competition by winning a Professor David Congressman Chabot served as U.S. Studies from Duke regional competition in November. Steven J. Chabot Singleton Representative for University in 1987. Alyse Bender, Jessica Biddle, Ohio’s First Congressional District for Upon graduation from law school, he Jonathan Davis, and MyLinda Sims 14 years, having been first elected in received a Skadden Fellowship to work defeated teams from Stetson University 1994. After running successfully in at the Legal Action Center for the College of Law, Chapman University 2010 to reclaim his seat, he was sworn Homeless in New York City, where he School of Law, and Fordham University in as congressman again on January 5. practiced for three years. He then School of Law. In the final round, the Chabot serves on the Committee on the worked as a public defender for seven Chase team lost a split decision to Judiciary, the Committee on Small years, first in Harlem and then in the Georgia State University College of Business, and the Committee on District of Columbia. After moving to Law. The team was coached by Foreign Affairs where he serves as chair Cincinnati, Singleton practiced at Professor Richard Bales, director of of the Subcommittee on the Middle East Thompson Hine before joining OJPC Chase’s Center for Excellence in and South Asia. He is one of Congress’s as its executive director in July 2002. Advocacy, with assistance from leading advocates for fiscal responsibil- Singleton has been a visiting assis- Professor Ljubomir Nacev, David ity and is an outspoken defender of tant professor at Chase since 2007. He Bender ’79, Rebecca Cull ’08, and individual privacy rights. Prior to his has garnered numerous awards and Marielle Peck ’10. first election to Congress, Chabot recognition served on Cincinnati City Council and through his the Hamilton County Commission for work with the four years on each body. OJPC, a non- Wright was named by Secretary of partisan, Commerce Gary Locke as a legislative nonprofit, pub- assistant with the U.S. lic interest law Department of office, including Commerce’s Office of his selection by Legislative Affairs. He Harvard Law previously served as School as a the Obama campaign’s Wasserstein Florida deputy politi- Fellow – which cal director during the recognizes Jonathan P. Wright 2008 general election exemplary and was the cam- lawyers who paign’s Kentucky political director have distin- during the primaries. A Kentucky guished ABA National Arbitration Competition Runners-up

40 Bench & Bar March 2011 KENTUCKY BAR NEWS University of to pass three levels of certification tests, Commonwealth of Kentucky. By reduc- including a foreign student certification ing the scope of subjects tested on the Kentucky to prepare them for the many interna- Kentucky bar exam, this proposed College of Law tional students that they will assist. amendment would enable our state’s Former VITA volunteers will be on site law schools to structure their programs University of Kentucky College of to supervise and answer any questions of instruction and to advise their stu- Law Students to provide Income Tax that may arise. dents in ways that are more responsive Preparation Assistance. For more information, or to schedule to their needs and to those of their By Amanda DeBord, Director of an appointment, visit www.law.uky.edu. future clients, their future employers, Communications, UK College of Law and the legal profession as a whole. group of students from the University of The complexity of contemporary AUniversity of Kentucky College of legal practice has rendered untenable the Law and the UK Gatton College of Louisville traditional presumption that all lawyers Business and Economics is preparing School of Law need to demonstrate competence across for income tax season, not by getting the full spectrum of legal subjects. Many their own paperwork in order, but by Reforming the Kentucky Bar Exam for lawyers today practice in specialized set- undergoing a series of online training the Benefit of Legal Education and the tings. Lawyers specializing in areas such programs to ready themselves for the Practice of Law as labor and employment law, immigra- hundreds of individuals who will take tion law, international law, intellectual advantage of the University of Note: The following memorandum has property, and environmental law realisti- Kentucky Volunteer Income Tax been sent to the Justices of the Supreme cally need to have their initial exposure Assistance (VITA) Program. Court of Kentucky, the Kentucky Board to their chosen fields of expertise during About 45 students, led by UK of Bar Examiners, the Kentucky Office law school, not after graduation. Assistant Professor of Law Jennifer of Bar Admissions, and the deans of the Established types of practice, such as tax Bird-Pollan, began preparing income University of Kentucky College of Law or transactional work, have evolved so tax returns on February 21, in the base- and Northern Kentucky University’s as to demand deep course sequences that ment of the University of Kentucky Chase School of Law. At a meeting span the entirety of the second and third Law Building. Last year, the program’s hosted by the Supreme Court on Jan. years of legal education. The traditional students prepared returns for over 650 14, 2011, these parties discussed the fol- bar exam has failed to anticipate entire low-income households, and generated lowing proposal by the University of types of practice, such as alternative dis- over one-fifth of the total returns filed Louisville’s law faculty. pute resolution and governmental through the Central Kentucky Economic relations. Experienced lawyers in all set- Empowerment Project (CKEEP), earn- entucky Supreme Court Rule tings are calling upon law schools to ing them the Collegiate Challenge K2.080(1) prescribes the subjects that prepare their graduates through trophy for most returns prepared by a may be tested on the Kentucky bar exam. enhanced teaching of concrete legal volunteer tax program in Kentucky. It has been the subject of discussion research, writing and speaking skills, Based on CKEEP’s estimates, UK stu- among the Justices of the Supreme Court, client relations, and law practice man- dents saved Lexington-area taxpayers the Board of Bar Examiners, the Office agement. Legal education now approximately $137,000. of Bar Admissions, Kentucky’s three law emphasizes, as never before, not only The cost of tax preparation is a bar- schools, and individual members of our specialized courses but also skills-based rier to many in the community who are bar. The faculty of the University of training, experiential learning, and live- either unable to prepare their own taxes, Louisville Louis D. Brandeis School of client clinics. These types of instruction or unaware of the various credits for Law has adopted a resolution advocating benefit all law school graduates, most of which they may be eligible. Tax prepa- the amendment of SCR 2.080(1) in an all those who begin their careers work- ration through the VITA program is free effort to reduce the number of subjects ing for themselves or for small firms. for households that make $49,000 or tested on the bar exam. In today’s legal environment, subject- less per year. Supreme Court Rule 2.080(1) has a matter specialization coupled with This program is also a valuable profound and not altogether positive opportunity for the volunteers according impact on legal education. In practice a ■ In Memoriam to Professor Bird-Pollan. While the stu- significant number of law students Mary June Pound Burns Louisville dents know a lot of tax law, for many, design their curriculum primarily by Louis Cohen Louisville this experience will mark the first relying on the content of the bar exam. Larry Wayne Gilliam London chance they will get to apply the skills The University of Louisville’s law fac- Challen P. McCoy Bardstown they’ve learned in their courses. ulty believes that an amendment of Robert Pride Moore Madisonville The students receive no course credit SCR 2.080(1) would improve legal Raymond Overstreet Liberty Larry L. Saunders Louisville or payment for volunteering, and have education and the practice of law in the

March 2011 Bench & Bar 41 KENTUCKY BAR NEWS practical legal skills has far greater may select from among questions Texas) explicitly identify both income impact than exposure to an arbitrary list proposed by the National tax and estate and gift tax as subjects to of discrete subject areas. Conference of Bar Examiners. be tested. Therefore, by the broadest In deciding which individual subjects Of the subjects identified in SCR possible definition of “taxation,” 17 to propose for removal from SCR 2.080(1), all but three are tested by at jurisdictions include tax-related subjects 2.080(1), the law faculty of the least 38 jurisdictions among the 50 states on their bar exams. University of Louisville consulted and the District of Columbia. (Source: Because relatively few jurisdictions national trends among bar examiners for National Conference of Bar Examiners, test administrative law, conflicts of law, appropriate guidance. The independent, March 31, 2007, survey; see also and taxation, we propose the elimina- collective judgment of bar examiners BarBri Digest 2011: Bar Exam tion of these subjects from SCR nationwide suggests that less frequently Information.) Three subjects listed in 2.080(1). The following proposal would tested subjects are the most appropriate SCR 2.080(1) are fairly described as sub- remove administrative law and adminis- candidates for removal from Kentucky’s jects that are infrequently encountered on trative procedure, conflict of laws, and bar exam. the bar examinations nationwide: federal taxation from the scope of SCR In its current form, SCR 2.080(1) Administrative law is tested in 15 2.080(1). In addition, by striking the reads in relevant part: jurisdictions: Colorado, Connecticut, final subsection of SCR 2.080(1), this SCR 2.080: Bar examinations Illinois, Indiana, Kentucky, Minnesota, proposal would eliminate any potential (1) The Board of Bar Examiners Mississippi, Missouri, New Mexico, inconsistencies arising from reliance on shall examine such applicants as are Oklahoma, Oregon, Utah, Vermont, questions (1) that are proposed by the certified to it as provided in Rule Washington, Wyoming. National Conference of Bar Examiners 2.040. The examination shall cover Conflicts of law is tested in 31 and (2) that cover topics not listed in an a period of two days and may cover jurisdictions: Alabama, Arkansas, amended version of SCR 2.080(1). the following subjects: Connecticut, District of Columbia, Our proposal consists of the follow- (a) Administrative Law and Hawaii, Idaho, Illinois, Iowa, Kansas, ing language: Administrative Procedure Kentucky, Louisiana, Maine, Michigan, (b) Conflict of Laws Mississippi, Missouri, Montana, SCR 2.080(1) is amended: (c) Contracts Nebraska, Nevada, New Hampshire, — by striking subsections (a), (b), (d) Constitutional Law New Jersey, New Mexico, New York, (j), and (o) (e) Business Entities (corporations, North Dakota, Oklahoma, Oregon, — by reordering the remaining sub- partnerships and/or others) Pennsylvania, Rhode Island, South sections (c) through (n) so that they (f) Criminal Law and Procedure Dakota, Tennessee, Utah, Virginia, West run sequentially from (a) through (k). (g) Civil Procedure Virginia. (h) Domestic Relations Taxation is tested in 15 jurisdic- As amended, SCR 2.080(1) would (i) Property (real and/or personal) tions: Illinois, Indiana, Kentucky, read in relevant part: (j) Federal Taxation Maine, Minnesota, Mississippi, SCR 2.080: Bar examinations (k) Torts Montana, New Mexico, North Carolina, (l) Uniform Commercial Code Oregon, Pennsylvania, Texas, Vermont, (1) The Board of Bar Examiners (sales, secured transactions and/or Virginia, Wisconsin. Oklahoma tests shall examine such applicants as are negotiable instruments) estate and gift tax; Utah notifies its test- certified to it as provided in Rule (m) Estates (wills and/or trusts) takers that it may examine the tax 2.040. The examination shall cover (n) Evidence aspects of estate planning. Among juris- a period of two days and may cover (o) Such other subjects as the Board dictions testing taxation, two (Montana, the following subjects: (a) Contracts Alexander Hamilton Historical Society to Present Symposium (b) Constitutional Law The Alexander Hamilton Historical Society will present the symposium, (c) Business Entities (corporations, “Federalism, the Power of the States and Adherence to the Constitution,” from partnerships and/or others) 10:30 a.m.-12:30 p.m. on April 16 at the Chao Auditorium at the Ekstrom (d) Criminal Law and Procedure Library, University of Louisville. The event, which is free and open to the pub- (e) Civil Procedure lic, will feature the following speakers and presentations: Hon. Michael O. (f) Domestic Relations McDonald (retired), Kentucky Court of Appeals, “Changing the Constitution (g) Property (real and/or personal) Through the ‘Necessary and Proper’ Clause;” Dr. Aaron D. Hoffman, Associate (h) Torts Professor of Political Science, Bellarmine University, “Federalism and the (i) Uniform Commercial Code Commerce Clause;” Dr. Jasmine Farrier, Associate Professor of Political Science, (sales, secured transactions and/or University of Louisville, “State Politics and the 14th Amendment;” and Dr. Charles Ziegler, University Scholar, Political Science Department, University of negotiable instruments) Louisville, “U.S. Federalism and Elected Representation.” (j) Estates (wills and/or trusts) (k) Evidence.

42 Bench & Bar March 2011 KENTUCKY BAR NEWS SUMMARY OF MINUTES be returned to the Clerk of the 2010 Audit Report prepared and pre- KBA BOARD OF GOVERNORS Supreme Court by Jan. 15, 2011. sented by Rudler & Associates, Inc. MEETING • Mr. Meyers reported on orders • Approved continuing the policy of NOVEMBER 19, 2010 received from the Supreme Court 1) providing comp registration for active order appointing Matthew P. Cook of members of the judiciary to attend the The Board of Governors met on Friday, Bowling Green to the CLE KBA’s 2011 Annual Convention. Nov. 19, 2010. Officers and Bar Commission to fill an unexpired term; • Approved the reappointment of Bar Governors in attendance were, President 2) Order approving Amendments to Governors Anita Britton of Lexington B. Davis; President-Elect M. Keane; Section 4, Section 5 and Section 11 of and Jonathan Freed of Paducah to the Vice President D. Myers; Immediate the By-Laws of the Kentucky Bar Audit Committee as well as the reap- Past President C. English, Jr., and Association; 3) Order approving the pointment of Audit Committee Chair Young Lawyers Section Chair N. amended and restated By-Laws for the James Dressman of Crestview Hills Billings. Bar Governors 1st District – J. Health Law Section of the Kentucky each to a second three-year term Freed, S. Jaggers; Bar Governors 2nd Bar Association; 4) Order approving expiring on Dec. 31, 2013. District – R. Sullivan, J. Harris; 3rd the amended and restated By-Laws for • Approved the reappointment of District – R. Hay, G. Wilson; 4th the Young Lawyers Section of the George E. Long II of Benton to the District – D. Ballantine, D. Farnsley, Kentucky Bar Association; 5) Order Bar Center Board of Trustees for 5th District – A. Britton, F. Fugazzi, Jr.; approving the amendments to the By- another three year term ending on 6th District – D. Kramer, T. Rouse; and Laws of the Kentucky Bar Association Dec. 31, 2013. 7th District – B. Rowe, W. Wilhoit. with the deletion Section 16 – Law • Approved the appointment of Mark Student Division; 6) Order approving Whitlow and Kelly Shoening to the In Executive Session, the Board consid- the employment of auditors for the Joint Local Federal Rules Commission ered three (3) discipline default cases. Kentucky Bar Association and the for the Eastern District of Kentucky Malcolm Bryant of Owensboro, Steve Kentucky Bar Foundation/IOLTA for a four year term ending on Dec. Langford of Louisville and Roger Rolfes Fund; and 7) Order appointing Hon. 31, 2014. of Covington, non-lawyer members William J. Wehr for a three-year term • Approved the reappointment of Arnold serving on the Board pursuant to SCR on the Kentucky Bar Center Board of Taylor of Covington to the Judicial 3.375, participated in the deliberations. Trustees. Ethics Committee to a second four • Director of Accounting/Membership year term ending on Nov. 30, 2014. In Regular Session, the Board of Nicole Key presented the financial and • Heard a presentation from Del Governors conducted the following investment report. O’Roark, Jr.; President of the Kentucky business: • Young Lawyers Section Chair Nathan Paralegal Association Vicki Howard; Billings reported that the section is Past President of the Louisville • Heard a status report from the Board doing extremely well and membership Association of Paralegals Dana Martin; Policy Review Subcommittee, 2011- numbers will exceed last year. The and Professor/Attorney Dick Williams, 2012 Budget & Finance Committee, section will be releasing an E- Director of Paralegal Studies at Diversity in the Profession Newsletter scheduled to come out in Sullivan University, requesting the Committee, Kentucky Lawyer December. Mr. Billings reported that Board to re-establish the KBA Assistance Program, Rules Committee the Lawyers as Leaders project is Paralegal Committee. Following dis- and Office of Bar Counsel. going well and that a second session cussion, the Board approved • Approved the Family and Medical will be held in early 2011 in partner- establishment of a Paralegal Committee Leave Act Policy to be incorporated ship with KYLAP. with the committee’s first task to report into the Employee Handbook. • President Davis reported that the back to the Board on its perceived role • Chief Bar Counsel Linda Gosnell pro- Order from Chief Justice Minton cre- and proposed guidelines. vided a report on the issue of the ating the new Access to Justice ongoing compliance with Keller v. Commission provides that the State Bar of California. President of the KBA has the authority To KBA Members • Approved the 2011 Holiday Schedule to appoint a member from the Board for the KBA Staff. of Governors. President Davis Do you have a matter to discuss • Executive Director John Meyers reported that he has asked President- with the KBA’s Board of Governors? reported there would be a contested Elect Margaret E. Keane of Louisville Board meetings are scheduled on election in the 7th Supreme Court to serve in this capacity. May 20-21, 2011 District for Bar Governor between • Approved the appointment of Bar June 14, 2011 Steve Burchett of Ashland and Earl Governor Anita Britton of Lexington “Mickey” McGuire of Prestonsburg. to serve on the Kentucky Child To schedule a time on the Board’s agenda Ballots will be mailed by December Support Guidelines Review at one of these meetings, please contact John Meyers or Melissa Blackwell 15 to those members in good standing Commission. at (502) 564-3795. in the 7th Supreme Court District to • Accepted the Fiscal Year June 30,

March 2011 Bench & Bar 43 KENTUCKY BAR NEWS Legally Insane by Jim Herrick

LAW DAY 2011 PLANNING GUIDES COMING SOON Presidents of local bar associations across the Commonwealth should be on the lookout this month for their Law Day 2011 Celebration planning guides. This year’s theme — The Legacy of John Adams from Boston to Guantanamo — provides the legal community with an opportunity to assess and celebrate the legacy of John Adams, explore the historical and contemporary role of lawyers in defending the rights of the accused, and renew our understanding of and appreciation for the fundamental principle of the rule of law. Law Day 2011 falls on Sunday, May 1. For more infor- mation on Law Day, visit www.lawday.org or contact Shannon Roberts in the KBA Communications Department at (502) 564-3795, ext. 224. “Your Honor, I’ve heard of spin, but I didn’t realize counsel would be placing us in a centrifuge today.” Mark your calendar • June 15-17, 2011 • KBA Annual Convention 2011 • Lexington

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WHO, WHAT, WHEN & WHERE ON THE MOVE age, and criminal defense. Thompson United States District earned a B.A. with Honors in Political Court for the Western District of Stoll Keenon Ogden PLLC is pleased Science and his J.D. from the University Kentucky. She succeeds Jeffrey A. to announce that attorneys Travis of Cincinnati in 2004. He is licensed in Apperson, who served as Clerk of Crump and Emily Pagorski are now Kentucky and Ohio. Mr. Thompson can Court for 16 years. Armstrong formerly members of the firm. Crump and be reached at 513-236-7338 and served as the chief deputy clerk for the Pagorski work in the firm’s Louisville [email protected]. More informa- Western District of Kentucky. There she office. Crump practices in the area of tion is available at www.thomp- has also served as a pro se staff attor- business litigation with particular law.com. ney and clerked for the Honorable emphasis on tort, environmental and Thomas B. Russell and the Honorable contractual disputes. He is a graduate of Greenebaum Doll & McDonald John G. Heyburn II. For the Transylvania University and earned his PLLC is pleased to announce that Commonwealth of Kentucky, she held law degree in 2003 from Vanderbilt Christopher W. D. Jones and Patrick the positions of legal counsel to the University Law School. Pagorski prac- J. Welsh have been named co-chairs of Governor’s Office of Child Abuse and tices in the area of business litigation the firm’s Mergers & Acquisitions Domestic Violence Services and assis- and debtor-creditor relations. She is a (M&A) Team. Greenebaum’s M&A tant attorney general. Following law graduate of the University of Georgia Team has been in existence for over 50 school, Armstrong worked as a law and earned her law degree in 2004 from years and handles every aspect of a guardian for the Juvenile Rights Vanderbilt University Law School. deal, including real estate, environmen- Division of The Legal Aid Society in tal, tax, ERISA, licensure and intellec- New York City before moving to Cory D. Thompson is pleased to tual property issues. Jones practices in Kentucky in 1994. The Administrative announce the formation of the the areas of mergers and acquisitions, Office of the U.S. Courts recently Thompson Law Office. The firm’s healthcare, securities, private equity, appointed Armstrong to the Court office is located at 3805 Edwards Rd, financial institutions, and international Interpreters’ Advisory Group, sought Suite 550, Cincinnati, OH, 45208. The transactions. Jones is also involved her participation on a court manage- focus of the firm is on general civil liti- with general corporate and contractual ment review team, and named her to a gation, personal injury, insurance cover- issues, U.S. public company reporting committee for judicial policy review. requirements, executive com- She has also served as a circuit repre- pensation and corporate gover- sentative to the Federal Court Clerks’ nance. Jones received his Association where she currently chairs bachelor’s degree from its education committee. She is a mem- Vanderbilt University and his ber of the Kentucky Bar Association. law degree from the University Armstrong received her B.A. summa of Louisville Louis D. Brandeis cum laude from Berea College in 1988 'PIEV 'SRZMRGMRK School of Law. Welsh practices and her J.D. from Columbia Law in the areas of mergers and School in 1992. 3YVZMHISTVIWIRXEXMSRW acquisitions, contractual issues, IHYGEXIERHTIVWYEHI real estate and other business Stoll Keenon Ogden PLLC is pleased related topics. He represents to announce the opening of the firm’s “Rex Hart is my ‘go several manufacturing compa- fifth office location – this one in to’ guy for video for in nies and distributors, advising Morganfield, Ky. SKO would also like the courtroom. He is innovative, accessible, them on issues related to prod- to welcome attorney Sidney H. “Buz” HITIRHEFPI ¾I\MFPI” uct distribution. He routinely Hulette, who is Of Counsel with the 7EQ(EZMIW advises clients on the formation firm and will be managing the &EVFSYVZMPPI/= and organization of business Morganfield office. Hulette will prac- “I have known Rex Hart entities. Additionally, a consid- tice primarily in the areas of general for many years and rely erable portion of Welsh’s prac- litigation, creditor’s rights, real estate, on his skills, attitude tice involves franchise law probate, mineral law and tax planning. and work ethic. He is a valuable member of my matters. Welsh received his Craig Dilger from the firm’s litigation team.” bachelor’s degree from Louisville office and Lauren McElroy 4IVV]1&IRXPI] Bellarmine College and his law and John Henderson from the firm’s 0I\MRKXSR/= degree from University of Henderson office will also be practic- Louisville Louis D. Brandeis ing from the firm’s new location as School of Law. needed. This expansion is part of the 859-221-3146 [email protected] firm’s effort to better serve its clients ZMHISTVSHYGXMSRˆSRPMRIXVEMRMRKˆIZIRXQEREKIQIRX Vanessa L. Armstrong has been by growing its presence in Western appointed Clerk of Court for the Kentucky. 46 Bench & Bar March 2011 WHO, WHAT, WHEN & WHERE Paul J. Dyar has joined the law firm of serves on the Board of Directors of been with the firm since 1981. She has Tilford Dobbins Alexander, PLLC. Family and Children First. Williams grad- been actively involved in firm leader- Dyar earned his B.A. in History from uated from the University of Kentucky ship throughout her career with the Bellarmine University in 1988 and his College of Law in 2003 and Yale firm, helping to plan the annual Women J.D. from the University of Kentucky University in 2000 where he majored in in Business seminar each fall. She is College of Law in 1992. Dyar also economics. He is married to Jefferson also actively engaged in the community, received his LL.M., Taxation in 1993 County District Court Judge Erica Lee serving on the Editorial Board for from the University of Florida. His Williams. Martin B. Tucker concentrates Kentucky Bench & Bar since 2000. She practice includes taxation, tax exempt his practice primarily in all aspects of is a volunteer counselor for the organizations, business law, wills and bankruptcy and restructuring law and Kentucky Lawyers Assistance Program trust and estates. creditor’s rights law. His experience and is active with the Fayette County includes the representation of banking Pro Bono Board. She presently serves Frost Brown Todd is pleased to institutions, commercial landlords, busi- as the vice-president of the Kentucky announce the appointment of four new ness entities and individuals regarding Bar Foundation Board. O’Brien also members to the firm. Cory J. Skolnick complex workouts, out-of-court restruc- serves as the president of the Board of represents clients in a wide array of com- turings, commercial and consumer bank- the Chrysalis House and the Carnegie plex civil litigation at federal and state ruptcy cases and foreclosures, general Center for Literacy and Learning. levels as well as before various alterna- business litigation and contract disputes. tive dispute resolution forums. Several of He represents and has represented numer- Dinsmore & Shohl is his matters have involved parallel civil ous companies and individuals as debtors pleased to announce litigation, criminal investigations, and in complex commercial Chapter 11 and that David Treacy, an administrative actions. In addition to his Chapter 7 bankruptcy cases and complex attorney in the firm’s more traditional litigation practice, he out-of-court restructurings and workouts. Lexington office, has advises clients regularly on administrative These cases have included the representa- been appointed a part- and regulatory issues and conducts inter- tion of restaurant owners, franchisees, ner. David concen- nal corporate investigations. Geoffrey M. commercial property owners and similar trates his practice on White is in the Real Estate Practice interests. His practice also includes repre- David Treacy complex corporate Group and is licensed in Kentucky and sentation of clients in commercial trans- and commercial liti- Ohio with an AV® Preeminent™ Peer actions, business formation and general gation in the state and federal trial and Review rating by Martindale-Hubbell. corporate practice. appellate courts as well as before state White’s practice is focused on represent- administrative agencies. He currently is ing lenders, loan servicers, owners, Daniel A. Hunt has a member of the firm’s Professional investors, developers and managers in the joined the law firm Development Committee and its workout, servicing, financing, purchase, Ziegler & Schneider, Mentoring Program. In addition, David sale, development and management of P.S.C., as an associ- currently serves on the Board of commercial real estate properties. He is a ate. Hunt obtained his Directors for the Central Kentucky member of the Board of Directors and the law degree, graduating Youth Orchestras and the Bell Court President of the Young Professionals summa cum laude Neighborhood Association, and is an Association of Louisville, a member of from Northern officer of the Notre Dame Club of the Board of Directors of Greater Daniel A. Hunt Kentucky University Central Kentucky. He earned his J.D. Louisville Inc. (GLI), the Leadership Salmon P. Chase from Seton Hall Law School and his Louisville Center, the Louisville Energy College of Law, and his bachelor of arts B.A. from the University of Notre Alliance, and is a founding member of degree from the University of Dame. the Governing Directors of The Crossing Louisville. While at Chase, Hunt served Generations Society. Jason C. Williams as an associate editor of the Law Dinsmore & Shohl is concentrates his practice in corporate law Review and completed an externship pleased to announce with an emphasis in franchise law and with Judge William O. Bertelsman. that John Selent has mergers and acquisitions of public and Hunt has been admitted to practice in been named the man- private companies. He has substantial both Kentucky and Ohio. His practice aging partner for experience in the organization and repre- will include general corporate matters, Dinsmore & Shohl’s sentation of purchasing cooperatives for insurance defense, litigation, and munic- Louisville offices. national restaurant chains. Williams ipal law. Selent will oversee serves as the head of the Frost Brown John Selent nearly 60 attorneys Todd’s franchise and distribution service Stoll Keenon Ogden PLLC is pleased and the integration of team and is a member of the recruiting to announce that attorney Eileen M. the firm’s two local offices following committee. Williams remains actively O’Brien is the new chair of the firm’s the firm’s merger with Woodward, involved in the Louisville community and Family Law practice group. O’Brien has Hobson & Fulton in 2009. He assumes March 2011 Bench & Bar 47 WHO, WHAT, WHEN & WHERE the position from Jon of the firm’s product liability, breach of contract Fleischaker, who Intellectual Property and common law tort claims. Neal is a served as the manag- & Technology Service member of the firm’s Torts & ing partner for the Group. Her practice Insurance Practice Service Group and firm’s Louisville focuses on patent- the Appellate Advocacy Team. She office since 1997. related aspects of focuses on appellate practice and on Selent is a member of intellectual property, defending product liability and profes- the firm’s Board of including counseling sional malpractice claims. She has Jon Fleischaker Directors and focuses Mandy W. Decker clients on the cre- handled litigation on a variety of busi- his practice primarily ation, management, ness liability issues, including intellec- on administrative law and commercial enforcement, and practice of intellec- tual property claims, premises liability litigation, with a special emphasis on tual property rights. Contributing to her actions and contract disputes. telecommunications and public utility practice is a scientific law. Selent earned his J.D. from the background in chem- Seiller Waterman is University of Notre Dame Law School istry and experience pleased to announce and his B.A. from Bellarmine College. with academic and that Auric D. Steele commercial research has become an asso- Stites & Harbison, PLLC, announced in the areas of bio- ciate with the firm. today that two attorneys have been chemistry, bio- Steele received his elected to membership in the law firm. technology and J.D. from the The new members are: Jamie L. Cox pharmaceutical sci- University of and Mandy Wilson Decker from the Demetrius O. ences. Holloway is a Auric D. Steele Louisville Louis D. Louisville office. Two Associates were Holloway member of the Brandeis School of also promoted to counsel: Demetrius O. Employment Law Service Group and Law and is licensed to practice law in Holloway and Jamie K. Neal, both has both first and second chair trial Georgia, Kentucky and California. His from the Louisville experience. He represents employers in practice includes litigation, intellectual office. Cox is a mem- the defense of a variety of state and fed- property and entertainment law. ber of the firm’s Real eral civil suits including Title VII, Estate & Banking ADA, ADEA, FMLA, Ben Carter has Service Group. She is FLSA and common- opened a law office in also the co-chair of the law tort claims Louisville. Ben firm’s Sustainability related to employ- Carter Law and Emerging ment. He also has (www.ben Technologies Practice extensive experience carterlaw.com) Jamie L. Cox Group. She concen- in litigating non-com- focuses primarily on trates on commercial petition and other defending homeown- real estate development and leasing, restrictive covenant Ben Carter ers facing foreclosure, commercial lending and corporate- Jamie K. Neal cases in both federal consumer law, and related real estate issues. Cox is a LEED and state court. He debtors’ rights litigation. Prior to open- Accredited Professional. Decker is a life also represents clients in the defense ing Ben Carter Law, PLLC, Ben served sciences patent attorney and a member of civil suits involving personal injury, as a housing attorney at Legal Aid Society in Louisville, a public defender in the island-nation of Palau, and a law Anita M. Britton, Crystal L. Osborne, and Amy C. Johnson have announced clerk for the Honorable Thomas the opening of their new Lexington law firm, Britton Osborne Johnson PLLC. Wingate of the Franklin Circuit Court. They will concentrate their practice in the areas of family law, employment law, He is a 2001 graduate of Davidson securities arbitration and general litigation. College and a 2006 graduate of the University of Kentucky College of Law. Contact him at 502-303-4062 or [email protected].

CLICK • www.kybar.org Anita M. Britton Crystal L. Osborne Amy C. Johnson

48 Bench & Bar March 2011 WHO, WHAT, WHEN & WHERE Yunker & Park PLC, since 2002. His prac- plaintiff’s personal of Lexington, is tice involves litigation injury and medical pleased to announce in the areas of product malpractice cases. that Oran S. liability, transportation Trey received his B.A. McFarlan, III, has law, commercial liti- from Centre College become a member of gation, insurance cov- in 1999 and earned the firm. McFarlan erage and bad faith, his J.D. from the received his J.D. from and general liability. University of Oran S. Wake Forest, and Lee Rosenthal He has published mul- Escum L. “Trey” Kentucky College of McFarlan, III graduated summa cum tiple articles, in sev- Moore, III Law in 2002. He is a laude from the eral publications, on a wide variety of member of the University of Kentucky with a B.A. in evidentiary, liability, and damages Lawyers Mutual Insurance Company of History. His areas of practice include issues. Rosenthal earned his J.D. from Kentucky Board of Directors and serves civil litigation, consumer protection and the University of Kentucky College of as editor-in-chief of the Kentucky entrepreneurial law. Law and his B.A. from the University Justice Association Advocate magazine. of Richmond. Jennifer previously served as a judicial Bubalo Rotman PLC law clerk to the Honorable Karl S. announced the elec- Gwin Steinmetz & Forester of the U.S. District Court for tion of Christopher Baird PLLC is the Eastern District of Kentucky and to W. Goode as a part- pleased to announce the Honorable Jennifer B. Coffman of ner. He will split his that Marcia L. the U.S. District Court for the Eastern time between the Pearson and Michael and Western Districts of Kentucky. She Louisville and F. Sutton have also practiced with Wyatt, Tarrant & Lexington offices become members in Combs, LLP in the firm’s corporate and Christopher W. where he practices in the firm. Both Pearson equine groups where her practice Goode the areas of personal Marcia L. Pearson and Sutton have been emphasized entity formation, loan injury and products with GSB since its transactions and gen- liability litigation. Goode currently inception in 2007. eral contract law. serves as chair of the Lexington-Fayette Pearson is a 2003 Jennifer earned a B.A. Urban County Government Ethics graduate of the from Centre College Commission. He will begin his term as University of North in 2000 and graduated president of the Fayette County Bar Carolina School of with honors from the Association in May 2011. Goode Law. Her concentra- University of earned his undergraduate degree from tion is in the area of Kentucky College of Northern Illinois University and his Michael F. Sutton nursing home litiga- Law in 2003. Jennifer J.D. from DePaul University. He is a tion as well as Jennifer H. Moore served as chair of the member of the Kentucky, Louisville employment law. Sutton is a 2004 grad- KBA Young Lawyers and Fayette County Bar Associations, uate of Indiana University School of Section from 2009-2010 (including American Association for Justice Law. He concentrates his practice in serving on the KBA Board of (AAJ), and the Kentucky Justice nursing home litigation, healthcare law Governors) and has been a longtime Association. Goode is also a member of and intellectual property law. member of its Executive Committee. The Million Dollar Advocates Forum. She currently serves as an adjunct Goode is a founding fellow of the Escum L. “Trey” Moore, III and instructor of legal writing at the Fayette County Bar Foundation and a Jennifer Howard Moore are pleased to University of Kentucky College of Law. past President of the Young Lawyers announce the opening of their firm, Moore & Moore, PLLC, is located at Section of the Fayette County Bar Moore & Moore, PLLC. Trey’s prac- Richmond Square, Suite 22B, 141 Association. In 2005, Goode received tice focuses on civil litigation, espe- Prosperous Place in Lexington. Trey the Fayette County Outstanding Young cially personal injury and medical and Jennifer can be reached by email Lawyer award. malpractice cases for plaintiffs. ([email protected] or Jennifer’s primary areas of practice are [email protected]) or by phone Dinsmore & Shohl is pleased to organization and representation of small 859.368.8900. announce that Lee Rosenthal, an attor- businesses and family law. Prior to ney in the firm’s Lexington office, has establishing the firm, Trey was a found- Burr & Forman LLP announce that been appointed a partner. Rosenthal ing partner of Savage, Elliott, Houlihan, the Self-Insurance Institute of America, joined the firm in 2009 through the Moore, Mullins & Skidmore, LLP, and Inc. (SIIA) has named Nashville-based firm’s merger with Woodward, Hobson Moore, Mullins & Erdmann, LLP. He Counsel Julie McPeak special counsel & Fulton LLP, which Lee practiced with has extensive experience litigating for the organization with specific March 2011 Bench & Bar 49 WHO, WHAT, WHEN & WHERE responsibilities to represent SIIA on authored with Allan W. Vestal, dean Century.” Their task is to create a long- regulatory matters considered by the and professor of Law at Drake range infrastructure plan to meet National Association of Insurance University School of Law, a book enti- Louisville’s economic and environmen- Commissioners (NAIC). With her new tled “Rutledge and Vestal on Kentucky tal needs. Greg Ehrhard is a member of role, McPeak joins several of her firm Partnerships and Limited Partnerships.” the firm practicing in the Real Estate & colleagues in national leadership roles This book was published by the Banking Service Group. He advises in the insurance industry. McPeak has University of Kentucky College of Law clients in many areas of commercial real over 12 years of legal and administra- Office of Continuing Legal Education. estate law, including zoning/land use, tive experience in state government and leasing, lending and condominium most recently served as the executive Thomas L. Rouse, an attorney in sole development. director of the Kentucky Office of practice in Erlanger, was elected to a Insurance (KOI). Prior to her appoint- second consecutive four-year term as For the seventh year in a row, Stites & ment as executive director, she spent mayor of Erlanger, a city of more than Harbison was named one of the “Best nine years as an attorney for KOI, the 17,000 residents in Kenton County Places to Work” in Kentucky. The offi- last five as general counsel. McPeak across the Ohio River from Cincinnati. cial rankings will be announced at an also served as general counsel to the He was also selected as vice-chair of awards dinner on April 20, 2011, at the Kentucky Personnel Cabinet. McPeak is the Kenton County Mayors’ group, an Lexington Convention Center in down- a member of the Tennessee, Kentucky, organization of mayors and govern- town Lexington. “Best Places to Work Nashville, and Franklin County Bar ment officials that meets monthly to in Kentucky” is hosted by the Kentucky Associations. She is an active member consider and discuss issues affecting Society for Human Resource of the American Bar Association, Tort Northern Kentucky local government. Management in conjunction with The and Insurance Practice section, where Rouse was also elected to the position Kentucky Chamber of Commerce. Also, she serves as Vice-Chair of the of vice president of the Kentucky Bar the Louisville Bar Association has Insurance Regulation Committee and a Association. His term begins on July 1, awarded Stites & Harbison the Paul G. member of the Federal Involvement in 2011, at the expiration of his sixth year Tobin Pro Bono Service Award. The Insurance Regulatory Modernization as a member of the KBA Board of award, normally given to an individual, Task Force. McPeak was also a member Governors. He may be contacted at was presented to the firm for providing of the National Association of [email protected] or pro bono legal services to victims of Insurance Commissioners, having [email protected]. domestic violence at court hearings that served on its Executive Committee, decide whether temporary emergency serving as Southeastern Zone Greenebaum Doll & McDonald PLLC protective orders should be turned into Secretary/Treasurer and Chair of the is pleased to announce that James W. permanent protective orders. The pro- Life Insurance and Annuities Herr has been selected to serve on the gram was originally conducted in con- Committee. She is a past Board mem- Board of Directors for the Legal Aid junction with The Center for Women ber of the National Insurance Producer Society that serves Jefferson County, and Families and is now coordinated Registry. McPeak received her J.D. Ky., and the 14 surrounding counties. through the Legal Aid Society as part from the University of Louisville Louis Herr is a member of the firm’s of the Domestic Violence Advocacy D. Brandeis School of Law in 1994, Litigation and Dispute Resolution Program and has been expanded nation- and her BBA in 1990 from the Group. His practice includes commer- wide to other communities. University of Kentucky. cial litigation, class action defense and appeals. Herr received his bachelor’s Bank Investment degree from the University of Kentucky Consultant magazine IN THE NEWS and his law degree from the University has named Central of Louisville Louis D. Bank’s Don Graeter Wyatt, Tarrant & Combs, LLP has Brandeis School of to its annual ranking been recognized as one of the “Best Law. of “Top 50” consult- Places to Work in Kentucky” in the ants with a ranking of large companies’category for 2011. This Leadership Louisville #6 in the nation. marks the fifth consecutive year Wyatt has announced that Don Graeter Graeter partners with has earned this honor. Sponsored by the Stites & Harbison his sons, Drew and Kentucky Society for Human Resource attorney Greg Spencer Graeter, at the bank’s Management and the Kentucky Ehrhard is one of 44 Waterfront Plaza location. Graeter, a Chamber of Commerce, this award is Greg Ehrhard community leaders former tax attorney, cited the team’s based on a two-part assessment. selected for member- extensive experience and an early com- ship in the 2011 Bingham Fellows class. mitment to providing comprehensive Thomas E. Rutledge, a member of The topic for Bingham Fellows this year financial advice as central to its suc- Stoll Keenon Ogden PLLC, has co- is “Shaping Louisville for the 21st cess. 50 Bench & Bar March 2011 WHO, WHAT, WHEN & WHERE Bob Hoffer, partner at ent auditors and working with them and prised of 14 partners Dressman Benzinger internal staff to ensure sound accounting from across the firm. LaVelle, was recently practices and financial reporting for the Meyer is a partner in awarded the KBA. Dressman heads the commercial the firm’s Litigation Outstanding law and banking practice at DBL. His Department and rep- Community Service practice includes banking law, commer- resents businesses in Bonitatem Award from cial transactions, tax law, probate, estate all types of litigation. the Covington Latin planning and real estate. His extensive litiga- Bob Hoffer School. Hoffer is a Kenyon Meyer tion experience 1972 alumnus of the Middleton Reutlinger includes commercial school. Embodying the school motto attorneys Gregory E. disputes in state and federal courts, Bonitatem et Disciplinam et Scientiam Mayes and Michael wrongful discharge litigation, and trade Doce Me (teach me goodness, discipline F. Tigue were recog- secrets and restrictive covenant issues and wisdom), Hoffer was presented the nized by the Kentucky on behalf of employees and employers. award for his work in the community, Alliance Against He also represents employers and including the Diocesan Catholic Racist & Political employees in white collar criminal Children’s Home (DCCH). Hoffer was Repression for negoti- matters, both in the investigation stage also named president-elect for the Gregory E. Mayes ating a settlement and in litigation. Meyer earned his J.D. Kentucky Defense Counsel (KDC). The with Metro Louisville from the University of Louisville Kentucky Defense Counsel is focused on government on behalf Louis D. Brandeis School of Law and increasing the quality of legal services its of the Coalition for his B.A. from the University of Notre members render to their clients and the Homeless and Dame. improving the administration of justice in Wayside Christian the courts. Hoffer has been a member of Mission, which Michael A. Galasso the KDC since 2004. Hoffer heads resulted in new zon- of Robbins, Kelly, DBL’s employment law division which ing and licensing ordi- Patterson & Tucker, represents employers of all sizes includ- Michael F. Tigue nances for homeless has been certified as a ing some of the largest throughout the shelters. member of The Kentucky and Greater Cincinnati area. Million Dollar Wyatt, Tarrant & Advocates Forum. Recently, Joshua D. Combs, LLP, The Million Dollar Farley appeared announce that the Michael A. Advocates Forum is before the Supreme Lexington-Fayette Galasso recognized as one of Court of the United Urban County Airport the most prestigious groups of trial States, arguing on Board appointed lawyers in the United States. behalf of the Richard M. Membership is limited to attorneys who Commonwealth of Hopgood, partner at have won million and multi-million Kentucky in Kentucky Richard M. the law firm of Wyatt dollar verdicts, awards and settlements. Joshua D. Farley v. King. Appearing Hopgood Tarrant & Combs, The organization was founded in 1993 before the Court at LLP, to serve as chair. and there are approximately 4000 age 29 makes Farley one of the He has served on the Airport Board members located throughout the coun- youngest individuals to ever appear since 2008. Hopgood is a member of try. Fewer than 1% of U.S. lawyers are before the Supreme Court. the firm’s Real Estate & Construction members. Members must have acted as Service Team. He concentrates his principal counsel in at least one case in James A. Dressman practice in representing retailers, devel- which their client has received a ver- III, partner at opers, landlords and tenants in commer- dict, award or settlement in the amount Dressman Benzinger cial real estate with an emphasis on of one million dollars or more. Galasso LaVelle, was recently retail and office developments. He also is a 2000 graduate of the Salmon P. reappointed chairman has extensive experience in oil and gas Chase College of Law at Northern to the Kentucky Bar acquisition, financing and development. Kentucky University. He has been Association’s (KBA) associated with Robbins, Kelly, Audit Committee. Dinsmore & Shohl is pleased to Patterson & Tucker since 1999 and James A. Dressman was reap- announce that Kenyon Meyer, a part- became a shareholder in 2006. He prac- Dressman III pointed to serve on the ner in Dinsmore & Shohl’s Louisville tices in the area of civil litigation with committee through office, was recently elected to serve on a focus on commercial, consumer, 2013. Dressman and this committee will the firm’s Board of Directors. bankruptcy, personal injury, employ- be responsible for appointing independ- Dinsmore & Shohl’s Board is com- ment law, and creditor’s rights. March 2011 Bench & Bar 51 WHO, WHAT, WHEN & WHERE Clifford H. Ashburner, chair of KBA Ethics Committee Chair Linda S. Wyatt’s Sustainability Group, has been Ewald recently received the Judge RELOCATION re-elected Chairman of the Kentucky Benjamin F. Shobe Civility and Edward J. Brockman, chapter of the United States Green Professionalism Award presented jointly Jr., is pleased to Building Council (USGBC). As chair, by the Louisville Bar Association and announce that he has Ashburner will lead the chapter as it the Louis D. Brandeis American Inn of moved his principal educates the community on green-build- Court. The award is presented to an law office to 161 East ing issues and promotes policies that attorney who displays sterling character Joe B. Hall Avenue in encourage green building. The and unquestioned integrity and consis- Shepherdsville. Kentucky chapter has over 250 mem- tently adheres to the highest standards of His telephone number bers, ranging from architects and civility, honesty and courtesy in his/her Edward J. has changed to (502) designers to construction companies and personal and professional life. Professor Brockman, Jr. 955-5501 and his e- developers. Ashburner was the first Ewald has been a member of the mail address is attorney to be certified a LEED University of Louisville Brandeis School [email protected]. Accredited Professional in Kentucky, of Law faculty for over 30 years. She is Brockman has been in general civil prac- and also heads the newly-formed the author of several significant articles tice for 41 years and will continue his Conservation and Energy Efficiency on professional responsibility, and was a practice in Jefferson and surrounding committee at Greater Louisville, Inc. He leading member of the KBA Ethics 2000 counties. is a published author and frequent Committee which revised the Kentucky speaker on sustainability issues. Rules of Professional Conduct. She also Linda R. Magruder of Magruder Law Ashburner was also a member of the spearheaded the reorganization of the is proud to announce the relocation of 2010 Bingham Fellows and served as a KBA “Ethics Hotline,” which provides her office to 12211 Old Shelbyville primary author of the group’s white advice and guidance to attorneys in need Road, Suite D, Louisville, KY 40243- paper, “Greening Louisville’s Built of immediate assistance with ethical 1591. Her new telephone number is Environment.” questions or quandaries. Additionally, (502) 690-6611 and new fax number is Professor Ewald was a founder of the (502) 690-6747. Linda will continue her “Partners in Professionalism” program work in protecting plaintiffs against sub- Have an item for which helps third year law students rogation and reimbursement claims make the transition in law practice with made by Medicare, Medicaid and WHO, an understanding of the importance of ERISA disability and medical benefits WHAT, ethics, professionalism and civility. plans. Before You Move... WHEN & Over 16,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important WHERE? that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. The Bench & Bar welcomes brief Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which he announcements about member place- or she may be communicated, as well as a physical address if your mailing address is a Post ments, promotions, relocations and Office address. If you move, you must notify the Executive Director of the KBA within 30 honors. Notices are printed at no cost and must be submitted in writ- days. All roster changes must be in writing and must include your 5-digit KBA member iden- ing to: Managing Editor, Kentucky tification number. There are several ways to do this for your convenience. Bench & Bar, 514 West Main Street, Frankfort, KY 40601 or by email to VISIT our website at www.kybar.org to make MAIL the Address Change/Update Form obtained [email protected]. Digital photos ONLINE changes or to print an Address from our website or other written notification to: must be a minimum of 300 dpi and Change/Update Form Kentucky Bar Association two (2) inches tall from top of head Executive Director to shoulders. There is a $10 fee per EMAIL the Executive Director via the 514 W. Main St. photograph appearing with announcements. Paid professional Membership Department at [email protected] Frankfort, KY 40601-1812 announcements are also available. Please make checks payable to the FAX the Address Change/Update Form obtained * Announcements sent to the Bench & Bar’s Who, Kentucky Bar Association. The dead- from our website or other written notification to: What, When & Where column or communication line for announcements appearing in Executive Director/Membership Department with other departments other than the Executive the next edition of Who, What, When (502) 564-3225 Director do not comply with the rule and do not & Where is April 1st. constitute a formal roster change with the KBA.

52 Bench & Bar March 2011

Congratulations!

To the following members who reported 50 or more Pro Bono hours on their 2010-2011 Annual Dues Statement.

Kathryn Burke Marilyn S. Daniel James Burns Galbreath Kevin Crosby Burke Rhoda Tolz Daniels Marcus Daniel Gale Tonya Sue Burns Barton David Darrell Sean Patrick Gallagher Richard H. Burr III Katherine P. Davenport G. Keith Gambrel Raymond M. Burse Denise Moore Davidson Chadwick Neal Gardner Frederick M. Busroe Jr. Deborah L. Davis Judith Boyers Gee David Brett Butcher Myrle Lynn Davis Kimberly S. I. Gevedon Gregory Ward Butrum Richard Frank Dawahare Carl Wayne Gibson Christopher D. Byers Perrin Wells de Jong D. Randall Gibson Maurice A. Byrne Jr. Jeffery Bryant Dean Jill Lyn Giordano John Wolff Byrnes Karen D. B. Dean Thomas B. Givhan Robert Jeffrey Caldwell John Alexander Decamillis John Anthony Goebel John Harlan Callis III Matthew Beatty DeMarcus Paul S. Gold Nancy E. Shelby Calloway Timothy Denison Elisabeth P Goldman Catherine G. Calvert Carl D. Devine Julia H. Gordon Gerry L. Calvert II Barbara K. Dickens Paul Hatton Gosnell Andrew M. Campbell Harold E. Dillman Alissa J. Graf-Schad Michael Ray Campbell Vincent Dimasi David C. Graves III David Wayne Carby Charley Greene Dixon Jr. Douglas L. Greenburg Francis Joseph Cardis Dodd Douglas Dixon Gerald L. Greene Samuel Glenn Carneal Laurel S. Doheny William D. Gregory Frankie Jeanne Carroll Robert A. Donald III Seleta M. Griffin Carolyn Carroway Thomas Edward Donnellon Maxine Sue Grossinger Nicholas A. Carter Charles L. Douglas Jr. John Mark Grundy Mary P. Cartwright Christopher F. Douglas Martin Andrew Haas Jr. Bryan Michael Cassis LeeAnna Dowan-Hardy Charles F. Hagan Bethany Lane Catron Brian McKee Driver Donna R. Hale Robert L. Caummisar Eric York Drogin Jennifer J. Hall Stephen C. Cawood Rhonda D. Duerr Sherry Dawn Hall John Thomas Chafin Richard E. Duerr Jr. William M. Hall Jr. Debi Faye Chalik Bridget Leigh Dunaway Brian Paul Halloran Arthur Allen Abshire Thomas William Beiting Robert Anthony Chandler Amy Rebecca Duncliffe John Richard Hamilton Amelia F. Adams Craig Steven Bell Ralph Phillip Chaney Jr. Kate Delaney Dunn Ronald Lee Hampton Tyson Kyle Adams Johnny Wade Bell Jeanne Kincer Channell Ronnie G. Dunnigan Karim Hosam Hanafy William C. Adams III Lindsey Gary Bell Jacqueline Lea Childers Dustin Wallace Dyer Sharon Ruth Handy Charles Joseph Adkins Elizabeth A. Bellamy Karen Gail Chrisman R Sidney Easley Bradley T. Hanks Ferrell Adkins J David Bender Edward Anthony Clark Jeffrey Lyle Eastham John V. Hanley Wael Mohammad Ahmad Bryan Edward Bennett Galen L. Clark Mark E. Edison Jennifer B. Hans Barbara Mary Albert Ragen Bennett Joseph G. Clark Jr. Terry Dennis Edwards Dennis Allan Hardin Cortney Scott Alexander John A. Berger Cynthia Rowell Clausen Darren Lee Embry Jonathan C. Hardy Jon Alig Pierre H. Bergeron David Joseph Clement William David Engel Mark Douglas Hardy Timothy Wayne Allen Rita L. Bernauer Mark Ray Cobb Candy Yarbray Englebert Glenda Jochum Harrison Roula Allouch Robert L. Bertram Cynthia Lou Coffee Robert C. English Jack Bolden Harrison Gary Webb Anderson Jennifer Ann Bertrand Willis G. Coffey Kenny Bryan Ernstberger Robert E. Harrison Geraldine G. Anderson Clay Massey Bishop Jr. Jon C. Coffman Philip Carl Eschels Deborah Lynne Harrod Terry R. Anderson Kevin Don Bishop Ross Daniel Cohen Stephen E. Esselman Jeremiah W. Harston Julie A. B. Anjo Robert C Bishop Andrew Terrian Coiner Angelena M. E. Etherton Amanda L. Hartley Julie Brown Apperson Charles C Bissinger Jr. Trevor Howard Coleman Robert Charles Ewald Martha Young Hasselbacher Rachael Lynn Armstrong Bonita Kay Black Edmond Collett Erin C. Farnham Cirris E. C. B. Hatfield Michael C. Arnold Bruce Everett Blackburn Angela Dawn Collette Jacques Daniel Farrell Mary Gina Hayes Perry Russell Arnold Mark C. Blackwell James Albert Comodeca Shannon Renee Fauver Douglas Scott Haynes Linda Y. Atkins Paul Wilson Blair Peggy Gross Comstock Joseph H. Feldhaus John D. Hays Thomas Howard Atkins Thomas Blankenship Michael P. Conley Dennis Britt Fentress Richard J. Head James W B Ausenbaugh Jeffrey M. Blum Allison Inez Connelly Maria A. Fernandez F. Richard Heath Bruce Edward Avery Carol Yvonne Boling Luther C. Conner Jr. Bruce Justin Ferriell Sheryl Egli Heeter James Lee Avritt Jr. Richard Boling Louise Cook Sarah E. Fightmaster S. Marie Hellard William C Ayer Jr. Barbara D. Bonar Martha Farmer Copeland Marina Finegold Jeffery Wade Helton Tiffany Gash Azzinaro John A. Bonar Jessica Perry Corley Joseph Leslie Fink III John Hughes Henderson III Kenneth Joseph Bader Elizabeth R. E. Bond Tanya Robin Cornette John C. Fischer Kevin G. Henry Kathryn R E Baillie Brenda Lynn Bonecutter Natalie Ellen Corrigan Jerome S. Fish II Marcus Hayes Herbert Colleen E Balderson Richard Joseph Bonenfant Frank Coryell Jon L. Fleischaker Sarah Sparks Herron Catherine Hill Ball Harry B. Borders David Lester Cotthoff Lisa Louise Fleming Vincent F. Heuser Jr. Kimberly Kay Ballard B. Scott Boster John Foster Cotthoff Robert Anthony Florio Stacey Hardin Hibbard DeAndrea Lynne Baltimore Edward Malone Bourne Jr. Vincent John Cotton Jr. Whitney C Flota Patrick C. Hickey Gary Trent Banet Michael D. Bowling Paul Brian Couch William Owsley Flowers II Robert Gregory Higgins David Bryce Barber Donna Lynn Boyce Anthony Gallo Covatta Jr. Jack W. Flynn Cynthia Lynn Higgs Jennifer Yue Barber Tony Lee Boyd Darrell Allen Cox John D. Ford Monica J. T. Hill William Burr Bardenwerper Charles J. Brannen Garrison R. Cox Richard T. Ford Paul J. Hill Rodney David Barnes Jennifer L. Brinkley Stephanie G. Cox Donna J. Foust Ralph E. Hill James J. Barrett III Donald A. Bromagen James Robert Craig Bradley Wayne Fox G. Robert Hines Dina Abby Bartlett Louise Mae Brown Stephen Lance Craig Michael B. Fox John Edward Hinkel Jr. Leslie Carl Bates Sean Edward Brown James M. Crawford Donald L. Frailie II Charles F. Hoffman Brent Robert Baughman Robin L. Browning James Timothy Crawford Shasta Kay Fraley Maria Greta Hoffman Christi Gill Baunach Elizabeth A. Bruce Wynne Louis Creekmore Jr. James Michael Francis Ruth Ann Hollan Ruth Helen Baxter Ronald K. Bruce Charles J. Crosby Danita Joleen Frederick Charles F. Hollis III Robert Daniel Beale Katherine R. Bruenderman Robert F. Croskery Ellen Gail Friedman Andrew Lott Holton Larry Lee Beard Kami Claudette Brumley Amy Denise Cubbage Fredric N. Friske Sherrill P. Hondorf Stephen J. Beardsley Jeremy Wayne Bryant Jennifer H. Culotta Stephen S. Frockt Dale Lee Horner Jr. Bryan Howard Beauman Charles E. Bullard Wolodymyr I. Cybriwsky Christopher W. Frost Richard Vernon Hornung Aaron Michael Beck Olana Jo Burgess Stephen K. Dallas Angela Kortz Funke William A. Hoskins III R Randolph Behnken Dennis Clay Burke Charles Edward Daniel David Eric Funke Pamela Yvette Hourigan

54 Bench & Bar March 2011 Stella Belinda House Ryland F. Mahathey Jaime Lynne Patterson James Richard Scott Michael D. Triplett Douglas C. Howard Don H. Major John Judson Patterson Lindsey Scott C. Christopher Trower Jay Bruce Howd Brett Edward Mangum John E. Pence Tasha Kay Scott Philip J. Truax Thomas M. Howe Samuel Manly Robert John Penta Thomas Arthur Scott Jr. Agnes Sipple Trujillo Bradley R. Hoyt Michelle E. Mapes Charlie M. Perkins Jeffrey B. Segal Emanuel Cohen Turner Carroll Hubbard Jr. David Dwight Marshall Jason Kelly Petrie M. Thurman Senn Johnnie Lloyd Turner Lee Huddleston Stephen L. Marshall Kirk M. Pfefferman Mary E. Sergent Robert Steven Ukeiley Lisa D. Hughes Eleanor F. Martin Robert David Pinson Stephen K. Sesser Melissa S. Van Wert Sidney H. Hulette James Richard Martin II Michael M. Pitman Suzanne Lee Shaffar Susan Jeanne Van Zant Derek D. Humfleet Jennifer McVay Martin Stephen Howard Poindexter Saeid Shafizadeh Richard Allen Vance John Earl Hunt Evaristo M. M. Martinez Andrea Lynn Poniecki Michael Gary Shaikun John Jay Vandertoll William Jay Hunter Jr. Frank Mascagni III Brenda Popplewell Valerie Anne Shannon James J. Varellas Jr. Joseph Thomas Ireland Marsha Dianne Mason Jack Chester Porter Wavie Clinton Sharp Sandra M. Varellas Justin Lee Jablonski Ronald D. Mather Richard C. Porter Jr. Mary Angela Shaughnessy Bradley K. Vaughn Andrea Marie Janovic Charles C. Mattingly III Stephen T. Porter Crystal M. Shepard Jason C. Vaughn August Thomas Janszen Joseph Hubert Mattingly III Clifford Keith Powell Ashlea Lashea Shepherd Nicholas C. A. Vaughn Elizabeth M. Jenkins Robert Denton Mattingly Scott Emerson Powell Mary Margaret Sherman Rebecca Cox Venter Donn Randall Jewell Sharon A. Mattingly Nicola Ai Ling Prall Karen Lee Shinkle Justin D. Verst Harold M. Johns Frederick M. Mayer John G. Prather Jr. Thomas Paten Shreve Harold Louis Vick Alicia Carol Johnson Thomas A. McAdam III Nicole M. Prebeck Katherine N. Siereveld David B. Vickery Graddy W. Johnson Anne W. McAfee Zachary David Prendergast Larry D. Simon Stephen Deems Vidmer Kevin Wayne Johnson Bruce Lane McClure Haley Anne Prevatt Thomas Bruce Simpson Jr. Paul F. Vissman Lira Ann Johnson George David McClure Jr. E Austin Price Bruce W. Singleton Charles Curtis Walden Lon M. Johnson Jr. Allen Keith McCormick Kimberly S. H. Price Diana L. Skaggs Charles Aaron Walker Robert H. Johnston III James Paul McCrocklin William E. Quisenberry Jr. Robin Renee Slater Richard Adolph Walker Brandon C. Jones Micki Woodward McDaniel Marco Mike Rajkovich Jr. Michael R. Slaughter Catherine I. Wallace Saunders Paul Jones IV Kevin Michael McGuire Phillis Hegmon Rambsy Roxann R. Smalley Matthew Robb Walter Judith K Jones-Toleman Katherine E. McKune Daniel Parker Randolph Mark Anthony Smedal Dana Geneen Walton-Macaulay David Barry Jorjani Brendan Joseph McLeod William C. O. Reaves Eurie Hayes Smith III John Lockwood Warner Jr. Edwin F. Kagin Jr. William F. McMurry Ryan James Reed H. Bradley Smith William T. Warner Cathy Kahnle Melissa D. McQueen C. Michael Reynolds Harold R. Smith Louis Irwin Waterman Taylor Kain Mark Stephen Medlin Elizabeth Dawn Reynolds James David Smith Alvin D. Wax David M. Kaplan David S. Mejia Frederick W. Rhynhart James Stephen Smith Harry Patrick Weber Martin Z. Kasdan Jr. James Albert Metry Robert Edward Rich Jonathan Logan Smith Katharine C. Weber Margaret E Keane Gregory Scott Metzger Charles E. Ricketts Jr. Linda Andrea Smith Thomas Marion Weddle Jr. Lori Jayne Keen Keith D. Meyer Donald Jerome Ridings Jr. Mark Thomas Smith Kevin Patrick Weis Dennis James Keenan III Karen Diane Meyers Ronald Lee Rigg Mitzie V. Smith Robert J. Welch Jr. William Leslie Keene Jr. James C. Milam Nicholas W. Riggs John E. Spainhour Jr. C. Michael Weldon Benjamin Todd Keller Adam Clayton Miller Virginia Maria Riggs-Horton Lloyd Emory Spear Charles S. West John Warren Keller Brendon D. Miller Billy N. Riley D. Nathaniel Spencer Gail Webb West Laurie Goetz Kemp Amy Marie Miller-Mitchell Johanna Doreen Rippey Charles S. Spiegel Steven L. West Katherine Kay Kendall Mark Daron Mitchell John Todd Rippy Robert Joseph Stanz Whitney H. Westerfield James Venus Kerley Kent David Mitchner James O. Risch Mark Joseph Stanziano Jennifer T. Westermeyer Thomas R. Kerr Theresa Marie Mohan Michael D. Risley John Warren Stapleton Paul Lewellin Whalen Valerie S. Kershaw Edward C. Monahan Stephanie Dawn Ritchie Auric D. Steele Thomas Edward Wheeler II Joshua Ryan Kidd Patrick John Monohan Mary Kelly Rives Kathy Stein Stanley W. Whetzel Jr. James Albert Kidney James H. Moore III Theodore M. Robbins E. Douglas Stephan Larry Whitaker Lanna Martin Kilgore Patrick Joseph Moran Nancy Oliver Roberts Andrew Martin Stephens John Andrew White Phillip Lynn Kimbel Kevan Morgan Ronald Gerald Robey Kenneth S. Stepp Scott White John W. Kirk W Randall Morris Cory Scott Robins Melissa Ann Stevens John Bell Whitesell Robert M. Kirtley Nina Louise Moseley Phyllis L. Robinson David Stuart Stevenson Jerry W. Wicker Christopher J. Klein William C. Moses Timmy G. Robinson Jr. John F. Stewart Mary Jo Wicker Bruce Lee Kleinschmidt Teri Lynn Mosier Benjamin D. Rogers William Kash Stilz Jr. Mark Kindred Wickersham Brian J. Klopfenstein William Lowell Mundy Earl Rogers III Brent Michael Stinnett Diana Carter Wiedel John Mark Kressenberg Linda Strite Murnane Suzanne Romano Matthew Atwood Stinnett Christopher D. Wiest Rand E. Kruger Aaron Michael Murphy John H. Rompf Jr. Thomas K. Stone Dennis Keith Wilcutt II John F. Lackey Melinda Ann Murphy Camille D. Rorer Melanie Lee Straw-Boone Leanna Puckett Wilkerson Ashley Nicole Laferty Terri Renee Mussetter John M. Rosenberg David C. W. Stuart Russell Lynn Wilkey David James Lampe Joseph James Neely Martha Alice Rosenberg Flora Stuart Howard Douglas Willen Susan Turner Landis Kerry Lee Neff Peter Allen Roush Natalie T. Stuart Thomas Brandt Willenborg Timothy Daniel Lange William D. Nesmith Neil Prakash Roy David Shawn Sullivan Arthur Lee Williams Edward Charles Lanter Frank Lewis Newbauer Michael K. Ruberg Maureen Ann Sullivan Cordell Hull Williams Jr. Kevin Paul Laumas Peter Canavan Newberry David Brian Rubinstein Nicholas D. Summe John Paul Wilson Theodore Lavit H. Samuel Ryan Newcomb Raymond F. Runyon David Brandeis Tachau Melissa Ann Wilson Nancy Ann Lawson Robert Brand Newman Wendellyn Knox Rush Anthony B. Tagavi William R. Wilson Stephen Samuel Lazarus Thomas A. Noe III Ronald Joseph Russell Alex F. Talbott Meagan Ruth Winters Patricia C. Le Meur Dennis Leo Nordhoff II Harry J. Rust John Lewis Tate Mark Donald Wintersheimer Pamela S Ledgewood Christopher S. Nordloh Jamie Lynne Rust Jeffrey Dale Tatterson Mark Alan Wohlander Jason Landow Lee Dennis L. Null Perry Thomas Ryan David Allen Taylor Kay L. Wolf Mary A. Lepper Victoria D. Oakley Brian Keith Saksefski Edwin Evans Taylor David Duane Wolfe Michelle C. Lerach Daniel Brian O'Brien Timothy Jay Salansky Kembra Sexton Taylor Mark H. Woloshin Marc H. Levy George R. O’Bryan Jeffery Lynn Sallee Leonard W. Taylor III Dax Ryan Womack Matthew Asher Levy Paul Connor O’Bryan Jonathan Todd Salomon Lescal Joseph Taylor Zack N. Womack Bobbi Jo Lewis Lynne Marie O’Connor Arthur R. Samuel Michael A. Taylor Bobby G. Wombles Floyd Allen Lewis Stephen M. O’Connor Jeffrey M. Sanders Roderick A. Tejeda John W. Wooldridge Johnie Delbert Lewis Jr. Margaret O’Donnell Stephen Craig Sanders John O. Terry Jerry Lee Wright Phillip Lewis Lisa Jean Oeltgen Antony Lee Saragas T Rankin Terry Jr. Charles David Yates Bruce Wayne Lominac James Floyd Ogden Sharon H. Satterly Donald Anthony Thomas Frank Yates Jr. John M. Longmeyer Steven J. Olshewsky Steven C. Schletker Linda Bernice Thomas Shelli D. D. Yoakum Philip Michael Longmeyer Patrick Edward O’Neill Benjamin Schmidt Patricia Ann Thomas Larry H. York Franklin W. Losey Rebecca Jean O’Neill John Anthony Schmidt Charles Lee Thomason Michael M. York Marc Allen Lovell K. Osi Onyekwuluje John Hilary Schmidt David T. Thompson Mary James Young Jeffrey Todd Loy Victoria Combs Owen Thomas David Schneid Gregory Irvin Thompson Shane Alan Young Deborah Lydon Annie L. Owens Larisa I. Schneider Kenneth R. Thompson II Franklin S. Yudkin James David Lyon Ross Collins Owens III Jennifer Lynn Scholl Steven O. Thornton Bruce A. Yungman James William Lyon Jr. Stephen Palmer W. Fletcher Schrock Margaret F Timmel Russell Bruce Zaino Michael W. Lyons Timothy Alan Parker David M. Schuler Jr. Arlette Cooper Tinsley Thomas C. Lyons D. Steven Parks Lee A. Schulz Karen Tosh Mark Thomas Macdonald Djenita M. Pasic Paul Roman Schurman Todd Kirby Trautwein Richard C. Macke William Lewis Patrick Ryan A. Schwartz David Clifton Travis

March 2011 Bench & Bar 55 29 Webinar: Demonstrative Aids 29 Subrogation Workshop (Lexington) CLEvents Kentucky Justice Association Kentucky Justice Association 30 Healthcare Enterprise: A Primer on MAY The following is a list of TENTATIVE upcoming CLE the Regulations Affecting the programs. Circumstances may result in program th changes or cancellations. You must contact the Business of Healthcare 4-5 26 Annual National Conference listed program sponsor if you have questions Cincinnati Bar Association on Equine Law regarding specific CLE programs and/or registration. UK CLE APRIL MARCH 6 Social Security 12 Video Replay: Professionalism, Cincinnati Bar Association 15 Professionalism, Ethics & Ethics & Substance Abuse Substance Abuse Instruction Instruction 10 Government & Public Sector Cincinnati Bar Association Cincinnati Bar Association Brown Bag Louisville Bar Association 15 Appeals from Arbitration Orders 13 Releases Louisville Bar Association Kentucky Justice Association 11 Probate Law Cincinnati Bar Association 16 Foreclosure: Debt Readjustment 13 Immigration Law for the General Cincinnati Bar Association Practitioner 11 Taxation Law Half Day CLE Cincinnati Bar Association Louisville Bar Association 16 Kentucky Legislation & Tax Case Update 13 Environmental Law Brown Bag 12 Volunteer Lawyers for the Poor Louisville Bar Association Louisville Bar Association Seminar Cincinnati Bar Association 17 Family Court Half Day CLE 14 Advocacy Series/Part Two – Louisville Bar Association Trial Practice 12 Social Security Half Day Cincinnati Bar Association Louisville Bar Association 18 Corporate Law Brown Bag Louisville Bar Association 15 Subrogation Workshop (Louisville) 13 Nursing Homes Kentucky Justice Association Kentucky Justice Association 22 Webinar: Deferred Fees and Structured Settlements 15 Domestic Relations Institute 14-18 Trial College Kentucky Justice Association Cincinnati Bar Association Kentucky Justice Association

22 Probate & Estate Law Brown Bag 15 Criminal Law Brown Bag 17 Video Replay: Professionalism, Louisville Bar Association Louisville Bar Association Ethics & Substance Abuse Instruction 24 Advocacy Series/Part One – 19 Real Estate Brown Bag Cincinnati Bar Association Pre-Trial Practice Louisville Bar Association Cincinnati Bar Association 20 Local Government 20 Health Law Brown Bag Cincinnati Bar Association 24 Social Security Brown Bag Louisville Bar Association Louisville Bar Association 20 Auto Seminar (Hebron) 21 Elder Law Kentucky Justice Association 25 True Success as an In-House Law Cincinnati Bar Association Department: Proactive Workplace 25 Auto Seminar (Louisville) Harassment Prevention Program 27 Construction Law Kentucky Justice Association Louisville Bar Association Cincinnati Bar Association 25 Employment Law: Wage/Hour and 29 Kentucky’s Corrections Crisis: 28-29 AAML/LBA 14th Annual Family Overtime Reforming the Commonwealth’s Law Seminar: Tackling the Tough Cincinnati Bar Association Sentencing Laws Issues State Government Bar Association Louisville Bar Association 26 Basic Real Property Cincinnati Bar Association

56 Bench & Bar March 2011 THE CLE COMMISSION: WHAT WE DO AND WHY WE DO IT

he Kentucky Bar Association ing rules and policies to ensure high Continuing Legal Education standards in the accreditation of CLE T Commission is a hard-working programming, to developing and spon- group of volunteer KBA members con- soring quality programming, to sisting of seven attorneys, one from regulating attorney compliance with the each appellate district in Kentucky. mandatory minimum CLE require- These members are appointed by the ments, the CLE Commission is working Kentucky Supreme Court and serve a toward the increased competency of the three-year term. A member of the com- legal profession in Kentucky. mission may be reappointed, but may In carrying out its duties under the not serve more than two successive Kentucky Supreme Court Rules, the three-year terms. The purpose of this CLE Commission wears two distinct commission is to administer and regu- hats. First, as a program sponsor late all continuing legal education responsible for overseeing the develop- programs and activities for the members ment and performance of of the KBA. This includes ensuring that KBA-sponsored CLE programs, the the members of the KBA complete high commission operates as a service quality, timely CLE programming each organization, finding timely, convenient year. From developing and implement- and interesting programming at little to no additional expense to KBA mem- bers. In addition to planning, commission members often take an active role in executing programs by participating as speakers, moderators, and/or program coordinators. Second, as a regulatory body, the commission works tirelessly to educate members regarding their CLE requirements under the Rules and how to satisfy them. For those who fail to satisfy these requirements, the commission is responsible for certifying their names to the Kentucky Supreme Court and for providing the Court with relevant infor- mation in order to help ensure appropriate remedy. Because of KBA member volun- teers like those serving on the CLE commission, the continuing legal edu- cation of Kentucky attorneys continues to be in good hands . . . their own. If you should have ques- tions or comments about continuing legal education, the members of the commission encourage you to contact your district representative.

March 2011 Bench & Bar 57 Congratulations to the following members who have received the 2010 CLE Award by obtaining a minimum of 62.5 CLE credit hours within a three year period, in accordance with SCR 3.680. The CLE Commission applauds these members for their efforts to improve the legal profession through continuing legal education. Ceasar Mark C. Achico Lisa Marie Brookes-Hayse April Lynn Davenport Judith Boyers Gee Clayton Reed Hume Sara Jean Adair Shannon Brooks-English Brian John Davis Alan J. George Christopher E. Hutchison Deborah S. Adams Carolyn Dawn Brown Timothy Edward Davis Ann Elizabeth Georgehead David Brandon Ison John R. Adams Brian Scott Brownfield Patricia Ann Day Richard A. Getty Lindsey Lee Jaeger John Lindsey Adams Matthew James Browning John L. Day, Jr. Lee Jay Gilbert Steven Douglas Jaeger Angela Adams Jennifer W. Bryan Matthew Beatty DeMarcus Jason Robert Gilbert Cheryl Edwards James Gary William Adkins Sarah Kay Bryant Jeffery Bryant Dean Bruce J. Gilbert Jamie T. Jameson William L. Aldred, Jr. Vicki Lynn Buba Karey Lenee’ Deardorff Karen Hoskins Ginn Brandon Neil Jewell Dennis Charles Alerding Melinda Brooke Buchanan Cheri Riedel Decker Robert William Goff A. Thomas Johnson Benjamin R. Allen, III Steven Jared Buck Larry Colby Deener Brian David Goldwasser Rickie A. Johnson Paul Alley Amy Catherine Burke Laura Day DelCotto Joe M. Goodman Anita Parsons Johnson Joseph Casey Allison Kevin Crosby Burke Mary Jo Delaney Lori Nicole Goodwin Barbara W. Jones Daniel Michael Alvarez Michael T. Burns Peter G. Diakov Henrietta D. Gores Susan Beverly Jones E. Kenly Ames E. Andre’ Busald Craig C. Dilger Michael D. Grabhorn Jennifer A. Jones Julie A. B. Anjo Jennifer L. Bush Rebecca B. Diloreto Janet Marie Graham Kyle David Kaiman Joseph Richard Ansari Victoria D. Buster Ervin Dimeny William Allen Gray Alexis Kasacavage Joseph V. Aprile, II James Aaron Byrd Shannon Marie Doan Anthony B. Gray Charles David Keen Glen S. Bagby Jeffrey August Calabrese Allen McKee Dodd Joan Deaton Grefer Linda Marion Keeton Neal Forrest Bailen Robert Jeffrey Caldwell John Carroll Dodson Virginia Werle Gregg Louis Kelly Ashleigh Noel Bailey Stephanie Lynn Caldwell Anna Leisa Dominick James Randall Grider, Jr. Barbara Curtin Kenney Carlos D. Bailey John Harlan Callis, III Jamesa J. Drake John Gregory Grohmann Joe Harvey Kimmel, III Kathryn R. E. Baillie Joe B. Campbell Jacqueline S. Duncan William R. Hagan Shawna Virgin Kincer John Joseph Balenovich Rutheford B. Campbell, Jr. Harold F. Dyche, II Sharon Kaye Hager David Dale King Bryan C. Banks Alton L. Cannon Marci P. Eaton Lisa Russell Hall Edward Michael King Travis Kent Barber Allison N. Carroll Garry L. Edmondson Morgan Carol Hall Lori A. Kinkead Rodney David Barnes Benjamin W. Carter Glenda Mae Edwards Martha Turner Hamann Michael Keith Kirk Douglas Wayne Barnett John Keith Cartwright Ashley Ruth Edwards Joseph L. Hamilton Jeremy Kirkham David Michael Barron Lance Casey Darren Lee Embry Seth Allen Hancock Mark Joseph Kisor Michael Austin Bass Diana L. Cassidy Charles E. English, Jr. James E. Hargrove Sarah Hay Knight W. Ralph Beck Mary Suzanne Cassidy Tammy Meade Ensslin Aaron Charldon Harper Walter C. Koczot Robert L. Bell, Sr. Stephen E. Castlen John Francis Estill Michael J. Harrison Jennifer L. Kovalcik Tiffany Lynn Bell Marianne S. Chevalier Joshua Tyler Fain Martha Blair Harrison Sheilah G. Kurtz Elizabeth A. Bellamy Carole Douglas Christian Douglass Farnsley Jason Apollo Hart Stephen C. Laber J. David Bender Robert K. Claycomb Marjorie Ann Farris Martin Lando Hatfield Cicely Jaracz Lambert Amye L. Bensenhaver Robbie Owen Clements Elizabeth S. Feamster Foster L. Haunz Dean A. Langdon Perry Mack Bentley Aimee K. Clymer- James Owen Fenwick, III Richard Wayne Hay Stephanie D. Langguth Joel T. Beres Hancock Erin Kelli Fields Hidekazu Hayakawa Holly Neikirk Lankster Richard W. Bertelson, III Michael Coblenz Jill Marie Finch Sarah Capps Hayes Michael Lars Larson Sarah Marie Best Jonathan Chase Cochran Robert Patrick Flaherty John Christian Helmuth James Theodore Lawley Tamela Ann Biggs Daryl Russell Coffey Melanie Ann Foote Christy Lee Hendricks Jason Andrew Leasure Clay Massey Bishop, Jr. Thomas R. Coffey Paul Kevin Ford James Michael Herrick Jason Landow Lee Erich Eugene Blackburn Tracy Lynn Cole Matthew W. Forsythe David Jack Herzig James Russell Lesousky, Jr. James Bradley Blakeman William Lewis Collins Jack Dwain Fowler Vincent F. Heuser, Jr. Richard Owen Lewis Caleb Tyler Bland Kieran John Comer Cathy Weller Franck Ramona Carole Hieneman Leah Erin Link-Ulrich Barbara D. Bonar Allison Inez Connelly Carl Norman Frazier Myles Lee Holbrook Matthew Thomas Lockaby Ruth Elizabeth Booher Edward Lyn Cooley Tracey A. Frazier Elaina Lell Holmes Michael A. E. Loesevitz David C. Booth Mary Anne Copeland Steven Michael Frederick Sherrill P. Hondorf Jane Long Paul Richard Boughman Joshua Bryan Crabtree Jonathan Freed Stephen M. Hopta Jason Hursel Long William Andrew Bowker James Robert Craig Tommy J. Fridy Vicky Chandler Horn Crystal Dawn Love John C. Bowlin Joseph N. Crenshaw Luke Joseph Frutkin Melissa Carol Howard Eric Allen Ludwig Edward Lee Bowling Boyce Andrew Crocker Roy Fugitt Robbie Joseph Howard David Eric Lycan Melissa Jane Bowman Justin David Crocker Steven Brent Fuller Tammy E. Howard James Vincent Magee, Jr. James E. Boyd Richard A. Cullison Lori Fuller John Paul Howard Kurt William Maier Gorman Bradley, Jr. Mary Elizabeth Cutter Catherine S. N. Fuller Rachelle N. Howell Cole Adams Maier John W. Braun Teresa Ann Daniel Ashley Ryan Gaddis Bradley R. Hoyt Amanda G. Main Laura B. Brent Jason Franklin Darnall Michael Alan Galasso Barbara Ann Hughes Amanda A. Major Anita Mae Britton Gene A. Dauer Carol Marie Garrett Leland Taylor Hulbert, Jr. John Regis Maloney

58 Bench & Bar March 2011 Tommye Collett Mangus Angela Hatton Mullins Bruce Reynolds Scott M. Smith Ronald R. Van Stockum, Jr. Reid Stephens Manley Larry Wayne Myers Jason Cosmo Reynolds Gwendolyn L. Snodgrass Santina O. Vanzant Michael John Marsch David Wayne Nagle, Jr. Alexandria Ribeyre Leitao Steven Lee Snyder David Todd Varellas Valerie May Marshall Gail Chooljian Nall Robert Edward Rich Mark Steven Solomon Maureen L. Veterano James Richard Martin, II E. Lorraine Neeley James Milby Ridings G. David Sparks Eric Peter Von Wiegen Sarah Jessica Martin Leslie M. Newman John Robert RoBards Lloyd Emory Spear Julie A. Wallace Kevin Jay Martz Spencer D. Noe Jimmy Lee Roark Timothy B. Spille Penny R. Warren Ronald Scott Masterson Onita Nella Noffke Theodore M. Robbins Morgain Mary Sprague Jody Christine Warren Pamela R. May Daniel Mark Nolan Joe Lucas Roberts Deborah Spring Clint Evans Watson Teresa D. Maynard Eileen M. O’Brien David Cooper Robertson Debra Kaye Stamper Whitney F. Watt Wendell Kevin McBride Lynne Marie O’Connor William Taylor Robinson, III D. Christian Staples, III Trevor Wayne Webb Kendra Lynne McCardle Patrick Edward O’Neill Spencer R. Robinson David R. Steele Harold Roy Weinberg Frank H. McCartney James R. Odell, Jr. Raymond R. Roelandt Carey Kathleen Steffen Linsey Walker West Alyson Rene McDavitt Mark Allen Ogle John Caldwell Rogers E. Douglas Stephan Jack A. Wheat Julie Marie McDonnell Christopher B. Oglesby Erica Michelle Roland Michael Lee Stevens John Russell Wheatley Brandi Lynn McEldowney John Kirk Ogrosky Kenneth R. Root Deborah C. Stevens Randall L. Wheeler Jason Scott McGee Suleiman O. Oko-ogua Martha Alice Rosenberg John W. Stevenson Charles S. Wible Michael Scott McIntyre Tomoyuki Otsuki James Rottinghaus John F. Stewart Frank A. Wichmann, II Carrie Insco McIntyre Mark R. Overstreet Thomas L. Rouse Karen Liles Stewart Russell Lynn Wilkey Bernard L. McKay Stephen Palmer Thalethia B. Routt Mark Alan Stiebel Kenneth Thomas Kevin M. McNally Melissa H.P. Palmer Christopher C. Ruml Alicia Ann Still Williams, II Julie Mix McPeak Nicole Hou Wen Pang Soha Tajoddin Saiyed Mary Whitlock Stoddard Wesley Kiser Williams Douglas L. McSwain C. Fred Partin Edward Robert Sanders David Michael Stout Thomas L. Williamson Christopher J. Mehling David Patrick George Benton Sanders, Jr. E. Frederick Straub, Jr. Willis Lee Wilson Coty Meibeyer John Judson Patterson Crystal Lynn Saresky Sarah B. E. Tankersley William C. Wilson, III Matthew Dean Meier D. Patton Pelfrey Donna Marie Sauer John Lewis Tate Sean Michael Wilson Christopher A. Melton Randall Pennington Robert Schaefer Barry Michael Taylor Christopher A. Wilson William Peery Melton Brenna Lynn Penrose Lori Ann Schlarman Gregory L. Taylor Steven Robert Wilson Louis F. Mercado David Gary Perdue Thomas David Schneid Richard S. Taylor Robert Albert Winter, Jr. Keith D. Meyer David James Perlow George Stephen Lescal Joseph Taylor James R. Wood C. Terrell Miller Michael Todd Pfeffer Schuhmann Daniel N. Thomas Robert Woodruff Mason L. Miller Jeanne M. Picht Steven Wayne Sebastian Brian Neal Thomas Frank C. Woodside, III Daniel H. Miller, III Gwendolyn R. Pinson Marion D. Seitz J. Hamilton Thompson Jamhal Lashon Woolridge Sucheta Mohanty Janice Lee Platt Thomas L. Self Jennifer Lee Thompson Joseph A. Worthington Mary Kathleen Molloy Laura C. Plumley Gary John Sergent Melissa Thompson Catherine S. N. Wright Donald P. Moloney, II John S. Poole Kathleen Marie Sheehan Lindsay Hughes Thurston Rebecca W. Wright Edward S. Monohan, IV John Randall Potter Dennis William Shepherd Landon Jackson Tingle Blake Edward Wright William Ladd Montague Brian Stephen Powers William Taylor Shier Nathan Blaze Tomlin Garnetta P. Wylie Barry David Moore Jeffrey Ray Prather Jonathan Todd Shipp Gerald R. Toner Mitzi Denise Wyrick Jessica Ann Moore Finis R. Price, III Paula Jo Shives David Michael Tranum Brandon Troy Yarbrough E. Patrick Moores Carl Eugene Pruitt, Jr. Thomas Bruce Simpson, Jr. James Thomas Traughber Donald Craig York John Hunt Morgan Justin Henry Ramey Logan Nicholas Sims Sadhna True Daniel Z. Zaluski Kyle Mason Morris James Brian Ratliff Chad Michael Sizemore Renae Mechelle Tuck Deborah Jo Zimmerman Bryan Darwin Morrow Gregory Adam Redden Sara Grinnell Smith Amy L. Tufts Jervis Michael Dean Zimmerman Denise M. Motta James Terrill Redwine Linda Tally Smith Patricia A. Van Houten Julia T. Mudd Bradley Aaron Reisenfeld Jenohn LeShea Smith Eric Kent Van Santen

2011 Dates KENTUCKY LAW UPDATE Dates and Locations September 1-2 (TH/F) Covington October 18-19 (T/W) Prestonsburg Northern Kentucky Convention Center Jenny Wiley State Resort Park

September 8-9 (TH/F) Bowling Green October 25-26 (T/W) Lexington Holiday Inn & Sloan Convention Center Lexington Convention Center

September 20-21 (T/W) Owensboro November 2-3 (W/TH) London RiverPark Center London Community Center

September 27-28 (T/W) Ashland November 30-December 1 (W/TH) Louisville Bellefonte Pavilion Theatre Ky. International Convention Center

October 4-5 (T/W) Gilbertsville Ky. Dam Village State Resort Park

March 2011 Bench & Bar 59 Congratulations to the following members who have received the CLE award by obtaining a minimum of 62.5 CLE credit hours within a three-year period, in accordance with SCR 3.680, and renewing the award by obtaining at least 20 hours in subsequent years. The CLE Commission applauds these members for their efforts to improve the legal profession through continuing legal education. Eldred E. Adams, Jr. Frederick M. Busroe, Jr. Robert W. Dyche, III Mark Douglas Hardy Charles J. Lavelle Nathaniel K. Adams Cynthia Scott Buttorff Jane Winkler Dyche Harold Eugene Harmon Bernadette Z. Leveridge Daniel T. Albers Timothy James Byland Robert William Dziech Norman E. Harned Erwin Wayne Lewis Barbara Mary Albert Kelley Landry Calk Martha Marie Eastman David Hare Harshaw, III Thomas R. Lewis Karen Ann Alfano Gerry Lynn Calvert Francis H. Edelen, Jr. Christopher S. Harwood Bobbi Jo Lewis Sharon Kay Allen Richard H. Campbell, Jr. Blaine J. Edmonds, III Hydee Harris Hawkins Maurice Reeves Little Brian Craig Allen John Ledyard Campbell Steven Alan Edwards Vicki R. Hayden Nancy Barrett Loucks Roula Allouch Maureen D. Carman Daniel F. Egbers Jeremy Andrew Hayden Christy J. Love John W. Ames Frances E. Catron Angela Renee Elder Jennie Yon Haymond Sheryl J. Lowenthal Cynthia Miller Armstrong Stephen C. Cawood Cynthia Elaine Elliott Michael Roy Head Mark Allen Loyd, Jr. Timothy G. Arnold Timothy K. Chism, Jr. Barbara Alison Emmons Mary J. Healy Joanne Lynch Vickie Masden Arrowood Janis Elaine Clark Stanton D. Ernest F. Richard Heath Steven Hayden Lyverse Thor H. Bahrman Robert Keith Clark Kenny Bryan Ernstberger Mark Evan Heath Mark Thomas Macdonald William J. Baird, III Carolyn Clark-Cox Peter Frank Ervin Sheryl Egli Heeter Thomas L. Macdonald Michael L. Baker Michael M. Clarke Philip Carl Eschels Francis W. Heft, Jr. Robert S. Madden Kenton Lee Ball Rodger L. Clarke Charles Fassler Rene B. Heinrich Linda Ray Magruder Brian Vincent Banas Richard H. C. Clay Thomas W. Fitzgerald Hiram J. Herbert, Jr. Ryland F. Mahathey Stephen Gerald Barker Pamela Kay Clay-Young Robert Louis Fleck Jane Hampton Herrick Dennis Charles Mahoney Stephen L. Barker Tara Jean Clayton Jason Shea Fleming Brian Leslie Hewlett Richard L. Major, Jr. Kimberly Irene Barnard Lee Lawrence Coleman William H. Fortune Geraldine Kay Hine Joanne R. Marvin James J. Barrett, III Reford H. Coleman Shasta Kay Fraley John Edward Hinkel, Jr. Frank Mascagni, III Timothy G. Barrett James Albert Comodeca William G. Francis Lisa English Hinkle Allie George Mason, Jr. Aaron Michael Beck Gregory S. Condra James Michael Francis William L. Hoge, III Charles Ed Massey Frank T. Becker Joseph H. Conley Mark Sidney Franklin James D. Holliday Kennis Maynard Arthur Steven Beeman Angela E. Cordery Scott L. Frost John David Holschuh, Jr. Glenn Stephen McClister Kevin Beiting James L. Cox Richard J. Gangwish, II Erica Lynn Horn Christopher M. McCrary Deedra Benthall Jerry J. Cox Peter Mark Gannott Michael Keith Horn Kathie McDonald-McClure Gregory Keith Berry Heather Leigh Crabbe Robert Dale Ganstine Bonnie Jo Hoskins Earl Martin McGuire Alonzo F. Berry, Jr. Larry J. Crigler Jane Ellen Garfinkel Craig W. Housman Martin J. McMahon, Jr. Hugh J. Bode Charles J. Cronan, IV Jay Randal Garrett Gary Lane Howard John Gary McNeill David L. Bohannon Sarah G. Grider Cronan Sheila D. B. Gerkin Lisa Peyton Hubbard J. Christopher McNeill Robert K. Bond Cameron R. Culbertson Roger Alan Gibbs Joseph D. Hudson Karen J. T. Meier John T. Bondurant Jack R. Cunningham James C. Gibson, Jr. David R. Irvin John Downing Meyers William F. Bottoms Jean Kelley Cunningham James T. Gilbert Lettricea L. Jefferson- Rosemary Taft Milby Carla Sue Bowens Terry Martin Cushing Barry D. Gilley Webb Carl Theodore Miller Claude Ray Bowles, Jr. Norman T. Daniels, Jr. Thomas C. Glover Walter Charles Jobson Brendon D. Miller James Patrick Bowling Micah Caroline Daniels Steven Matthew Goble Harold M. Johns Carolyn Louise Miller Jill Roland Brady Wayne C. Daub David Mark Godfrey Gary C. Johnson Stephen D. Milner Barbara G. Brand Michael Davidson Robert Louis Goodin, Jr. Rebecca J. Johnson Michael Mitchell Ira Edsel Branham Samuel Girdner Davies Linda Ann Gosnell Paul E. Jones Donald C. Moore, Jr. Michael A. Breen Benjamin K. Davis Allison Brooke Grant Ernest H. Jones, II Douglas H. Morris, II Richard Martin Breen Douglas Lee Davis Kristi Lynn Gray Lawrence Lee Jones, II Ryan Ashley Morrison Matthew W. Breetz Rodney G. Davis Robert F. Greene Brian Thomas Judy Jesse T. Mountjoy Mark Russell Brengelman Linda Carol Dawson Karen J. Greenwell Misty Dugger Judy Amanda J. Mullins David Joseph Bross Edmonde P. DeGregorio Thomas B. Griffiths John Warren Keller Joshua James Mullins Aubrey C. Brown Jeffery Bryant Dean John L. Grigsby Jackie Masden Kendinger Melinda Ann Murphy Sherri Porter Brown William G. Deatherage, Jr. H. Philip Grossman Valerie S. Kershaw W. Douglas Myers Kelli E. Brown John Michael Debbeler Asa P. Gullett, III Daniel M. Kininmonth Timothy Joseph Naville Elizabeth J. Brown Charles D. Deep Sheldon Lee Haden Randall Loftin Kinnard Gregg Y. Neal Lyn Lee Bruckner Kevin Michael Devlin Ryan M. Halloran John Stephen Kirby Frank Kelly Newman Tyler Doran Buckley Richard J. Deye Bradley Dale Hamblin, Jr. Virginia Ruth Klette Troy Nance Nichols Elaine Marie Bukowski Charley Greene Dixon, Jr. Eric Allen Hamilton Maria Gorruso Klyza Richard Martin Nielson Beverly M. Burden Amy Elaine Dougherty Michael R. Hance Bruce Andrew Krone James Robert Norris Kenneth R. Burgess Howard Neal Downing Traci Snyder Hancock La Mer Kyle-Griffiths Janet McCarty Norton John Wesley Burkholder, III Susan Hanley Duncan Jennifer B. Hans Shelia Ann Kyle-Reno Leila Ghabrial O’Carra Mary Pyle Burns Clifford R. Duvall Paula Lynne Harbour Heidi S. Lanham Annie O’Connell

60 Bench & Bar March 2011 Stephen M. O’Connor Daniel Parker Randolph Lee A. Schulz Robert Johnson Stokes, Jr. John Scott Waters, IV Margaret O’Donnell Richard M. Rawdon, Jr. Michael Stuart Edward H. Stopher Leonard A. Weakley, Jr. Edwin Foster Ockerman, Jr. William C. O. Reaves Schwendeman Randall Scott Strause Richard McKee Wehrle Ann B. Oldfather D. Gary Reed Philip Joseph Schworer Robert Kenneth Strong R. Leonard Weiner David Y. Olinger, Jr. David Lawrence Reichert Elizabeth R. Seif Nancy Gail Sturgeon John Kevin Welch Lacy Kent Overstreet Paul E. Reilender, Jr. Richard Allen Setterberg Dennis Michael Stutsman Martin Irwin Welenken Michael A. Owsley Bobby Edward Reynolds Jimmy Adell Shaffer Michael P. Sullivan Linda J. West Michael Eric Pace Lee D. Richardson Beverly Ann Shea Charles L. Sydenstricker, Whitney H. Westerfield Brian Keith Pack Charles E. Ricketts, Jr. Jeffrey E. Sherr Jr. Teresa Kay Whitaker Carol B. Paisley Jonathan S. Ricketts Micah Ian Shirts Arnold S. Taylor Tamela Jane White Peter David Palmer James Vincent Riggs Patrick Alan Shoulders Roderick A. Tejeda Allison S. Whitledge Michael Thomas Pate Jesse Leo Robbins Joseph Arthur Shriver Timothy B. Theissen Michelle Renee Williams Rebecca S. Patterson Jeffery Allen Roberts Richard Howard Shuster Marguerite N. Thomas Dale T. Wilson Arthur Cary Peter, Jr. Erwin Roberts Shane C. Sidebottom Dennis Leo Thomas Mildred Gail Wilson Allen Carl Platt, II Jimmy D. Robinson George R. Siemens, Jr. Crystal Lynn Thompson William Roy Wilson Neva-Marie Polley Kendall Robinson Hamilton B. Simms William Eugene Thro Susan Michele Wilson Kristin D. Pollock Mary Gail Robinson Mark Albert Sipek Roy W. Tooms Linda Carnes Wimberly Hans George Poppe, Jr. Daryle M. Syck Ronning Diana L. Skaggs William C. O. Travis Jennifer L. Wittmeyer Claud Fillmore Porter Joseph L. Rosenbaum Randy T. Slovin Jennifer O. True Andre W. Wood Janice Faye Porter Robert Allen Rowe, Jr. Meggan E. Smith Lizbeth Ann Tully John Greene Wright Pamela H. Potter Thomas Edward Rutledge Acena Johnson Smith James William Turner, Jr. Eric Paul Wright Boyce Leigh Powers John C. Ryan Valorie Denise Smith Michael J. Van Leuven Gerald Edward Wuetcher Nicole M. Prebeck John F. Salazar Mark Francis Sommer Richard Allen Vance Robert C. Yang Damon Loyd Preston Kyle Ray Salyer Virginia J. Southgate Marcus Lee Vanover Mary James Young Cathy Eileen Prewitt Robert E. Sanders Herbert B. Sparks Muriel B. Varhely Joseph J. Zaluski G. Kent Price Michael R. Sanner Ricky Eugene Sparks James Anthony Vaught Jennifer E. Zell Milton Hance Price Darrell L. Saunders Linda Shearer Speed Gregory Royce Vincent Wilbur M. Zevely Loren Teller Prizant Karen Savir David Edward Spenard Edwin J. Walbourn, III Nicholas A. Zingarelli Gregory Keith Puckett David Thomas Schaefer Mark Joseph Stanziano Theodore B. Walter Donald D. Zuccarello Harry B. Quinn Michael A. Schafer Catherine D. Stavros Gregory Ward Jonathan Abram Jennifer Lynn Scholl Andrew Martin Stephens Mervin Wayne Warren, Jr. Rabinowitz Jacqueline K. Schroering Robert Ernest Stephens, Jr. Melanie McCoy Warren

March 2011 Bench & Bar 61 Kentucky Bar Association CLE Office (502) 564-3795

AOC Juvenile Services (502) 573-2350

Louisville Bar Association Lisa Maddox • (502) 583-5314

KYLAP Ashley Beitz • (502) 564-3795

Kentucky Justice Association (formerly KATA) Ellen Sykes • (502) 339-8890

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AOC Mediation & Family Melissa Carman-Goode (502) 573-2350 ext. 2165

UK Office of CLE Melinda Rawlings • (859) 257-2921

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

Northern Kentucky Bar Association Julie L. Jones • (859) 781-4116

Children’s Law Center Joshua Crabtree • (859) 431-3313

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State Government Bar Assoc. Amy Bensenhaver • (502) 696-5655

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

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64 Bench & Bar March 2011 MULTIBOOK search Kentucky Bar Association 201 1 Convention June 15-17, 2011 Lexington Convention Center Lexington, Kentucky

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