JANUARY/FEBRUARY 2017 KBA Special Enrollment Period is Now Live for Members & Spouses Apply online for KBA's Life Insurance Plan $500,000 non-medical application, under age 40* Also enrolling for KBA's Individual Own Occupation Disability Plan Up to $10,000/mo coverage & online application, under age 50* Info, Quote and Apply at NIAI.com Call or Email TODAY | 800.928.6421 | [email protected] | www.NIAI.com *Exams/blood tests required for certain medical histories and larger face amounts. Underwritten by: Metropolitan Life Insurance, 200 Park Avenue, New York, NY 10166 This issue of the Kentucky Bar Association’s VOL. 81, NO. 1 B&B-Bench & Bar was published in the month of November. COMMUNICATIONS & Contents PUBLICATIONS COMMITTEE 2 President’s Page James P. Dady, Chair, Bellevue By: Mike Sullivan Paul Alley, Florence Elizabeth M. Bass, Lexington 4 2017 KBA Diversity and Inclusion Summit James Paul Bradford, Paducah 5 2017 KBA Annual Convention Speaker Information Frances E. Catron Cadle, Lexington Anne A. Chesnut, Lexington 6 Tribute to Former KBA President Doug Myers Rachel Dickey, Louisville 9 Book Review Tamara A. Fagley, Lexington By: Professor Robert G. Lawson Mark Flores, Lexington Cathy W. Franck, Crestwood Features: Drone Law Lonita Baker Gaines, Louisville William R. Garmer, Lexington 10 Drone Law: FAA Regulation—When Hobby Use Laurel A. Hajek, Louisville Ends & Commercial Use Begins and What to Do P. Franklin Heaberlin, Prestonsburg When The FAA Comes a Knockin’ Judith B. Hoge, Louisville By: J. Allan Cobb and Andrea R. Hunt Jessica R. C. Malloy, Louisville 16 The Use of Drones for National Security Purposes Eileen M. O'Brien, Lexington By: J. Peter Hill Richard M. Rawdon, Jr., Georgetown Sandra J. Reeves, Corbin 20 The Privacy Battle Between Drones and Homeowners By: Larry Hicks Gerald R. Toner, Louisville Sadhna True, Lexington 24 Drone Law (or Lack Thereof ): A Legislative Perspective Zachary M. Van Vactor, Louisville By: Tyler Peavler Michele M. Whittington, Frankfort Columns PUBLISHER 27 Northern Kentucky University Salmon P. Chase College of Law John D. Meyers EDITOR 28 University of Kentucky College of Law James P. Dady 30 University of Louisville Louis D. Brandeis School of Law MANAGING EDITOR 32 Effective Legal Writing Shannon H. Roberts By: JoAnne Sweeney DESIGN & LAYOUT 34 Young Lawyers Division Jesi L. Withers By: Rebecca R. Schafer The B&B - Bench & Bar (ISSN-1521-6497) Bar News is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 36 KBA Board of Governors Minutes and Upcoming Meeting Dates KY 40601-1812. Periodicals Post­­age paid at 38 Ethics Opinion E-439 Frankfort, KY and additional mailing offices. All manuscripts for publication should be sent 40 Judicial Nominating Commission Results to the Man aging Editor. Permission is granted 43 February 2017 Kentucky Bar Applicants for reproduction with credit. Publication of any article or statement is not to be deemed an 44 Order Amending Rules of the Supreme Court (SCR) 2016-11 endorsement of the views expressed therein by the Kentucky Bar Association. Departments Subscription Price: $20 per year. Members 46 Continuing Legal Education subscription is included in annual dues and is not less than 50% for the lowest subscription price 50 Kentucky Lawyer Assistance Program paid by subscribers. For more information, call To view the current Hot (502) 564-3795. 52 Kentucky Bar Foundation Topics article, written by POSTMASTER Robert Brammer, visit 56 In Memoriam www.kybar.org/page/ Send address changes to: hottopics. B&B - Bench & Bar 58 Who, What, When and Where 514 West Main Street Frankfort, KY 40601-1812 Several inside graphics by ©istockphoto.com/JesiWithers BENCH & BAR | 1 PRESIDENT’S PAGE Lawyers, Technology and the KBA’s New Law Practice Task Force CR 3.130(1.1) of our Kentucky Rules of Professional Conduct provides that all Kentucky lawyers have a duty to provide competent representation to their clients. Comment 6 S to that rule states, “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and com- ply with all continuing legal education requirements to which the lawyer is subject.” This compe- tency requirement may extend to technology issues facing the practice of law. BY: MIKE SULLIVAN For example, Rule 1.4 requires us to keep information related to the representation of a client confidential unless the client gives informed consent or other limited exceptions exist. Rules 5.1 and 5.3 require lawyers in charge of others to ensure their conduct is compatible with the profes- sional obligations of the lawyer. Together, these rules require lawyers who use technology in their practice to take competent and reasonable steps to ensure the confidentiality of client information. In today’s world of email, texts, and sharing or storing information online “in the cloud” or on a server, the risks of a breach of that confidentiality are higher than ever. A March 29, 2016, Wall Street Journal article detailed computer breaches at two of the largest firms in the country, Cravath, Swain & Moore LLP and Weil, Gotshal & Manges LLP. In early 2016, we also heard about the “Panama Papers” when an anonymous hacker disclosed approxi- mately 11.5 million confidential documents obtained from the internal database of Panamanian- based law firm Mossack Fonseca. These documents identified leaders of various countries who had deposited money in offshore accounts located in tax havens such as the British Virgin Is- lands and the Bahamas. Smaller law firms and solo practitioners are not immune from attack. These breaches can often begin with “phishing,” an email sent to the firm that looks legitimate, but requests either password information or provides a link to click on, which can result in granting access to the hacker who sent the email. “Ransomware” can be downloaded unknowingly from a suspicious email, website, or ad. The downloaded program can limit the functionality of your computer or disable it and en- crypt all of your files. There is often a ransom, as low as $500 but it can be larger, that must be paid to the hacker in exchange for a decryption key to restore access and use. This risk can be mitigated by frequent back up of your data to a separate storage server or site that can restore all data up to the previous day. Ransomware attacks can be prevented or limited by spam-filtering systems that block the suspicious emails, anti-virus software, and training of employees. Ethics Opinion KBA E-437, issued March 21, 2014, addressed the issue of attorneys storing client information “in the cloud.” The cloud is a remote location that is not under the control of the lawyer but is controlled by a third party who provides data storage or other service. The opinion provides that “[u]se of this technology is ethically proper if the lawyer abides by the Rules of Professional Conduct by safeguarding client confidential information, by acting competently in using cloud computing services, by properly supervising the provider of the cloud service, and by communicating with the client about the use of cloud services when such communication is necessary given the nature of the representation.” 2 | JANUARY/FEBRUARY 2017 Kentucky is home to some champion fighters. The worst punches are often the ones you don’t see coming. That’s why more Kentucky legal professionals choose Lawyers Mutual. With 29 years of Kentucky experience, we specialize in providing smaller firms with the kind of expert counsel that can prevent an unexpected legal battle from turning into an all out war. Don’t place the security of your practice with another provider. When the fight is on, make sure you have the Kentucky champ ringside. Contact Lawyers Mutual for your free quote today at 502.568.6100 or LMICK.com. By Kentucky Lawyers. For Kentucky Lawyers. Waterfront Plaza | 323 West Main Street, Suite 600 | Louisville, KY 40202 | 502.568.6100 | 800.800.6101 | LMICK.com lmick_gloves_17_kba_8.5x10.875.indd 1 12/4/16 8:17 PM PRESIDENT’S PAGE second kentucky bar association In addition, some clients now ask lawyers to comply with require- ments to ensure the confidentiality of client information. This can include minimum security standards such as firewall protection, anti-virus protection, and security patch management. A client may require the use of encrypted email that can only be opened with a password or internal controls within a law firm so that only those persons working on a client’s matter can access that client’s information stored on the firm’s server. A client recently asked our firm to comply with similar require- ments. Of course, many of the requirements were difficult to un- derstand upon first review. After a few hours of work with the help of our IT contractor, we understood what we had to do to comply and took the steps to do so. However, these issues demonstrate the lawyer’s need to be familiar with technology in the lawyer’s office. Technology has also changed how lawyers handle marketing. Back in the day, and I find myself PLANNED FOR APRIL 7, 2017 using that term more often as I become a more “seasoned” lawyer, the lawyer’s marketing The Kentucky Bar Association is pleased to announce that work was limited to deciding if and the second Diversity and Inclusion Summit will take place how he or she wanted to advertise in April 7, 2017, at the Hilton Lexington Downtown. the Yellow Pages. Now, we have web- sites, Facebook, Twitter, and other in- This two-day event will begin with a pipeline project that ternet/social media outlets where lawyers will expose exceptional high school and college students can market or share information about them- from diverse backgrounds to a career in the law.