MARCH/APRIL 2019 TURN TO PAGE 5 FOR 2019 KBA Annual Convention Details Individual Own Occupation Disability Coverage for Kentucky Attorneys Affordable KBA Rates from Metlife KBA Member Semiannual Rates Monthly Coverage Amount: $3,000 $5,000 $10,000 Under 30 yrs $152 $252 $502 30-39 yrs $213 $354 $705 40-49 yrs $352 $585 $1,167 ✓ No Medical Exam (Under Age 50) ✓ No Tax Returns ✓ Apply for up to $10,000/month Coverage ✓ Residual Disability Coverage ✓ Industry Standard Disability Definition ✓ Easy Online Application Visit www.NIAI.com/Attorneys for KBA quotes and application Call or Email TODAY | 800.928.6421 | [email protected] | www.NIAI.com This issue of the Kentucky Bar Association’s VOL. 83, NO. 2 B&B-Bench & Bar was published in the month of March. COMMUNICATIONS & PUBLICATIONS COMMITTEE Contents James P. Dady, Chair, Bellevue 2 President’s Page Paul Alley, Florence By: Douglas C. Ballantine Elizabeth M. Bass, Gallatin, Tenn. Rhonda J. Blackburn, Pikeville 5 2019 KBA Annual Convention Preview and Jenn L. Brinkley, Bowling Green Registration Information Frances E. Catron Cadle, Lexington Anne A. Chesnut, Lexington 14 Q & A with “Survivor” Winner Kentucky Attorney Nick Wilson Elizabeth A. Deener, Lexington 16 Book Review: Brian Haara’s “Bourbon Justice: Tamara A. Fagley, Lexington How Whiskey Law Shaped America” Cathy W. Franck, Crestwood By: James P. Dady Lonita Baker Gaines, Louisville William R. Garmer, Lexington Features: Information Governance P. Franklin Heaberlin, Prestonsburg 20 Information Governance: “Do You Actually Know Judith B. Hoge, Louisville What You Don’t Know?” Jessica R. C. Malloy, Louisville By: Sandra J. Reeves Eileen M. O'Brien, Lexington Sandra J. Reeves, Corbin 24 Lessons from O’Neill v. Bank of America – Hacked Law Firms Gerald R. Toner, Louisville Left Holding the Bag Sadhna True, Lexington By: Adam C. Reeves Zachary M. Van Vactor, Louisville Michele M. Whittington, Frankfort Columns PUBLISHER 26 University of Louisville Louis D. Brandeis School of Law John D. Meyers 28 Northern Kentucky University Salmon P. Chase College of Law EDITOR 30 University of Kentucky College of Law James P. Dady 32 Young Lawyers Division MANAGING EDITOR By: Jennifer “Jenna” Scholl Overmann Shannon H. Roberts 34 Effective Legal Writing By: Professor Jennifer Jolly-Ryan DESIGN & LAYOUT Jesi L. Ebelhar 36 Law Practice Management By: Stephen E. Embry The B&B - Bench & Bar (ISSN-1521-6497) 38 Shop Talk is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, By: Michael Losavio KY 40601-1812. Periodicals Post­­age paid at Frankfort, KY and additional mailing offices. Bar News All manuscripts for publication should be sent 42 Debra Hembree Lambert Formally Sworn In to the Man aging Editor. Permission is granted as Supreme Court Justice for reproduction with credit. Publication of any article or statement is not to be deemed an 44 Kentucky Bar Association Audit Information endorsement of the views expressed therein by the Kentucky Bar Association. 46 Ethics Opinion E-447 Bench & Bar Subscription Price: $20 per year. Members Departments subscription is included in annual dues and is not less than 50% for the lowest subscription price paid by subscribers. For more information, call 48 Kentucky Lawyer Assistance Program (502) 564-3795. 49 Kentucky Bar Foundation Visit our website to POSTMASTER 50 Continuing Legal Education check out the latest Send address changes to: Hot Topics article. B&B - Bench & Bar 514 West Main Street 56 Who, What, When and Where Frankfort, KY 40601-1812 Several inside graphics by ©istockphoto.com/JesiWithers BENCH & BAR | 1 PRESIDENT'S PAGE the Benefits of a Mandatory Bar Association BY: DOUGLAS C. BALLANTINE KBA PRESIDENT lot of Kentucky lawyers understand- that—voluntary. Typically, voluntary bars provide for the profes- ably do not focus on the structure sional needs of their members, such as continuing education and Aof our Kentucky Bar Association networking opportunities, and lobbying on legislation and political (KBA), or on the structure of other states’ issues that support the interests and purposes of the association. bar associations. In the world of state bar associations, however, there are “mandatory” bar associations, also The Kentucky Bar Association is established as an independent known as “integrated” or “unified” bar associations, and there are agency of the Supreme Court of Kentucky. Its authority to regulate “voluntary” bar associations. As you might expect, non-mandatory the profession in Kentucky, delegated by the Kentucky Supreme bar associations are the ones called voluntary bar associations. Court through rules, is derived from Section 116 of the Kentucky Constitution, which states: “The Supreme Court shall have the There are approximately 30 states that, like Kentucky, have man- power to prescribe rules governing its appellate jurisdiction, rules datory bar associations. A mandatory bar association requires for the appointment of commissioners and other Court personnel, membership in order to practice within that particular state. Typ- and rules of practice and procedure for the Court of Justice. The ically, mandatory bar associations are created either by the state’s Supreme Court shall, by rule, govern admission to the Bar and the legislature, or by the state’s Supreme Court. In the short space for discipline of members of the Bar.” this column, there is no way to discuss in detail all of the differences between mandatory and voluntary bar associations, but it is worth SCR 3.025 sets out the mission and purpose of the KBA: “The noting some of those differences, and some of the benefits we enjoy mission and purpose of the association is to maintain a proper as members of a mandatory bar association state. discipline of the members of the bar in accordance with these rules and with the principles of the legal profession as a public calling, There are differences among virtually every mandatory bar and to initiate and supervise, with the approval of the court, appro- among virtually every voluntary bar. Generally, though, mandatory priate means to insure a continuing high standard of professional bars supervise the admission process, discipline, licensing, con- competence on the part of the members of the bar, and to bear a tinuing legal education and other requirements of maintaining a substantial and continuing responsibility for promoting the effi- license to practice law, and provide supportive services. In vol- ciency and improvement of the judicial system.” untary bar states, licensing fees are still required and paid, which typically would be used for discipline and regulatory matters; how- As noted on the KBA’s website discussing the history of the KBA, ever, there are generally no supportive services provided under the the first meeting of lawyers from across Kentucky was held in 1871, licensing fees. Participation in a voluntary bar association is just during which a voluntary association was created. In 1934, the 2 | MARCH/APRIL 2019 With our coverage. DON’T LOSE SLEEP worrying over your legal protection – get coverage from Lawyers Mutual, a group of seasoned legal professionals dedicated exclusively to assisting Kentucky lawyers. Our claims prevention expertise and unparalleled service will put your mind at rest. Call (502) 568-6100 today. 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_emoji_bb_8.5x10.875.indd 1 1/11/19 9:59 AM 2019 KBA Annual Convention PRESIDENT'S PAGE DETAILS ON PAGE 5 Kentucky General Assembly passed an act creating an all-inclu- Without getting down into the weeds, there have been several sive bar association which authorized the Court of Appeals (now cases in the last few years that in some way or another challenge Supreme Court) to adopt and promulgate rules and regulations the existence of mandatory bars. The rub with some mandatory defining the practice of law and to establish a code of professional bars has been that the bar took a public position on a controversial responsibility to govern the discipline of members of the bar. Since political issue or legislative proposal, in the bar’s publication or other then, the Kentucky Bar Association has been the mandatory bar public forum. Because one or more members of the mandatory bar association of the Commonwealth of Kentucky. disagreed with the position the bar took, the member objected to having paid mandatory dues used to subsidize views with which SCR 3.030(1) states “All persons admitted to the practice of law the member disagreed. in this state shall be, and they are, members of the [Kentucky Bar A]ssociation.” Probably the most notable of these cases was Keller v. State Bar of California, which upheld the challenge under the First Amendment Because the KBA is a mandatory bar, it is able to provide its mem- to the use of mandatory fees “when such expenditures are not neces- bers and the public a number of services that may not be provided sarily or reasonably incurred for the purpose of regulating the legal by voluntary bar associations, such as: profession or improving the quality of legal services.” Conversely, the Court held that a mandatory bar may constitutionally use a KENTUCKY LAWYER ASSISTANCE PROGRAM and member’s compulsory fees to fund activities germane to regulating EMPLOYEE ASSISTANCE PROGRAM. the legal profession and improving the quality of legal services but not to fund “non-germane” activities the member opposes. KBA ETHICS HOTLINE: Free, informal ethics opinion pro- vided promptly to members to determine ethical course to The Kentucky Bar Association is very careful in its activities to take in a situation. observe the ruling of Keller. Indeed, as noted on the KBA’s website: CLIENT SECURITY FUND: Fund created by the Supreme The programs of the Bar and its commissions and committees Court to help provide indemnification to clients who may are used to accomplish its goals and mission.