Mr. Wes Collins of Winchester has filed papers with the Kentucky legislature seeking the impeachment of a Kentucky Family Court Judge.

Mr. Collins alleges that his petitions relating to the custody of his son have been improperly by the Judge and that his rights have been violated. The complaint apparently was handled by the Judicial Conduct Commission without a result to his liking. He seeks impeachment of the Judge by the legislature and alleges that the actions of the Family Court Judge justify her impeachment by the legislature.

Collins reports that he filed a similar petition last year with the State Senate, and is now filing with the House of Representatives.

We assume from his communication with LawReader that he has filed a complaint with the Judicial Conduct Commission and was not satisfied with the result.

He reports that in response to his petition that the House’s legislative counsel informed him:

“House Speaker Pro Tem Counsel Scott Jones said on the phone today that (the) committee on committees would assign it to judiciary. I objected saying an independent impeachment committee should be formed. I asked to be called upon and to be consulted in the C on C, and was told leadership would decide how it will go and they’ll get back to me. “

Collins gave us several citations of federal law, but these do not appear to apply to state procedures regarding removal of a judge. Impeachment appears to have been superceded in Kentucky by the Judicial Amendment to the Kentucky Constitution in 1976. In Kentucky the Judiciary has a procedure that handles complaints against sitting judges. It appears that Collins (who is not an attorney) is seeking to involve the legislature in a procedure that would bypass the constitutional procedures in Kentucky law.

It would appear that the impeachment powers of the legislature would only apply to executive branch employees and to legislative members.

Currently Angela Ford has her second appeal to the 6th. Circuit seeking to avoid having to provide more information in her accounting to the Federal Court. The U.S. Attorney has been seeking this information for some eleven months. Stan Chesley filed a motion in the Federal action seeking a private viewing of the accounting so that he could determine if his civil rights were violated by the KBA Bar Counsel.

As we understand the procedure, the U.S. Attorney is still seeking this information for their own purposes. The new filing by Angela Ford (Dec. 1, 2012) argues that the Federal District Court has no jurisdiction to view her private financial records re: her distribution in the Fen Phen case.

The issue as to whether or not Ford must give a full accounting to the Government will ultimately be determined by the 6th. Circuit Court of Appeals.

Judge Reeves said in his interlocutory order responding to Chesley’s motion:

\

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

(at Covington)

UNITED STATES OF AMERICA,

Plaintiff,

V.

WILLIAM J. GALLION, et al.,

Defendants.

))))))))))

Criminal Action No. 2: 07-39-DCR

ORDER

*** *** *** ***

On July 11, 2011, Angela Ford, by counsel, filed a document captioned “Accounting

Filed with the Court under Seal.” [Record No. 1289] The information provided in this document

was actually less than its heading would indicate.

The document contains four paragraphs in which Ford’s counsel, Kenyon Meyer of the firm Dinsmore & Shohl, LLP: (i) incorporates information previously filed in the record of this proceeding; (ii) acknowledges that certain sums collected in the state action captioned Abbott, et al., v. Chesley, et al., Commonwealth of Kentucky, Boone Circuit Court, Civil Action No. 05-CI-00436, are being held in escrow for the benefit of the Abbott plaintiffs; and (iii) identifies the generic names of five banks where remaining funds are located. No other account information is provided.

Additionally, counsel for Ford acknowledges that a portion of the funds paid to his client

by the Abbott plaintiffs have been paid to third parties (including, but not limited to other

attorneys) pursuant to fee agreements.

No fee agreements have been submitted and the identities of attorneys who may have received compensation pursuant to the referenced fee agreements have not been identified.*

While movant Chesley might speculate that this indicates – or in some way proves – some sinister action by Ford taken in conjunction with former counsel for the Kentucky Bar Association, the Court does not engage in such rank speculation. *

Quite simply, the document which is the subject of the current motion does not provide any further information and former counsel for the KBA has not been identified or referenced in any way.

Accordingly, it is hereby ORDERED that the Motion for Reconsideration or Clarification [Record No. 1326] is DENIED.

This 10th day of January, 2012.

/U.S. District Judge Danny Reeves/

(*emphasis added by LawReader

LawReader notes that there is no confirmation that the husband of former Bar Counsel Linda Gosnell’s husband was on the Fen Phen distribution list in behalf of Angela Ford.

Chesley does not make that allegation as a fact in his public pleadings. He does cite in his pleadings that Leslie Rosenbaum, the husband of Linda Gosnell, advertised on his website in 2007 that he was experienced in “fen phen” and “mass drug tort litigation”.

In pleadings filed by Stan Chesley in the Boone Circuit Court civil case, he has submitted proposed Interrogatories which seek discovery of whether or not KBA personnel or their family members were on the Angela Ford Distribution list. A new filing by Chesley in the Kentucky Supreme Court states that he believes from the record that Ford made a distribution to “five” different lawyers. Ford has not disclosed the identity of any lawyers to whom she made a distribution.

So far Chesley has sought discovery from the Ky. Supreme Court (in his pending KBA discipline appeal), the Boone Circuit Court in the Fen Phen civil action styled Abbott v. Chesley, and in the U.S. District Court, to discovery the identity of the five lawyers.

The speculation Judge Reeves refers to, is apparently referring to Chesley’s desire to find out if the husband of KBA’s former Bar Counsel (Linda Gosnell, the prosecutor in his attorney discipline case), is one of the five lawyers who received a distribution of Fen Phen monies from Angela Ford.

Chesley’s argument for discovery of the possible distribution of monies to the Bar Counsel’s husband should be considered in light of the possibility that discovery may show, that his KBA prosecutor may have violated KRS 522.020, or KRS 522.030 and KRS 15.733(2)(c) & (d) which provides in pertinent part as follows:

See: Thorpe v. Com., 295 S.W.3d 458 (Ky. App., 2009)

“KRS 15.733(2)(c) & (d) provide in pertinent part as follows:

[a] prosecuting attorney shall disqualify [her]self in any proceeding in which … a member of [her] immediate family … [i]s known by the prosecuting attorney to have an interest that could be substantially affected by the outcome of the proceeding; [or] [i]s to the prosecuting attorney’s knowledge likely to be a material witness in the proceeding[.]

(emphasis added). Since immediate family is not defined by the statute, we are to construe it according to its common, everyday meaning. Wilfong v. Commonwealth, 175 S.W.3d 84, 96 (Ky.App.2004).

Black’s Law Dictionary defines it as “a person’s parents, spouse, children, and siblings.” at 620 (7th ed. 1999).”

KRS 15.733 Disqualification of prosecuting attorney — Appointment of a special prosecutor.

(1) For the purposes of this section the following words or phrases shall have the meaning indicated:

(a) “Proceeding” includes pretrial, trial, appellate review, or other stages of litigation;

(b) “Fiduciary” includes such relationships as executor, administrator, conservator, trustee, and guardian;

(c) “Financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

…

(2) Any prosecuting attorney shall disqualify himself in any proceeding in which he or his spouse, or a member of his immediate family either individually or as a fiduciary:

(a) Is a party to the proceeding, or an officer, director, or trustee of a party;

(b) Is acting as a lawyer in the proceeding;

(c) Is known by the prosecuting attorney to have an interest that could be substantially affected by the outcome of the proceeding;

(d) Is to the prosecuting attorney’s knowledge likely to be a material witness in the proceeding;

(e) Has served in private practice or government service, other than as a prosecuting attorney, as a lawyer or rendered a legal opinion in the matter in controversy;

(f) Has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.

(3) Any prosecuting attorney may be disqualified by the court in which the proceeding is presently pending, upon a showing of actual prejudice.

(4) In the event that a prosecuting attorney is disqualified, he shall certify such fact in writing to the Attorney General who may direct another Commonwealth’s attorney or county attorney or an assistant attorney general as a special prosecutor to represent the Commonwealth in that proceeding.

Effective: July 1, 1982

If a prosecutor was in violation of KRS 15.733, then it is possible that the criminal code might apply to a failure of the prosecutor to recuse herself.

See the following offenses:

KRS 522.020 Official misconduct in the first degree.

(1) A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or

(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or

(c) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Official misconduct in the first degree is a Class A misdemeanor.

Effective: January 1, 1975

History: Created 1974 Ky. Acts ch. 406, sec. 187, effective January 1, 1975

522.030 Official misconduct in the second degree.

(1) A public servant is guilty of official misconduct in the second degree when he knowingly:

(a) Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or

(b) Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or

(c) Violates any statute or lawfully adopted rule or regulation relating to his office.

(2) Official misconduct in the second degree is a Class B misdemeanor.

Effective: January 1, 1975

History: Created 1974 Ky. Acts ch. 406, sec. 188, effective January 1, 1975

SCR 3.130(3.8) Special responsibilities of a prosecutor

The prosecutor in a criminal case shall:

(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

History: Amended 1982 Ky. Acts ch. 141, sec. 42, effective July 1, 1982. — Repealed and reenacted 1980 Ky. Acts ch. 188, sec. 10, effective July 15, 1980. — Created 1976 Ky. Acts ch. 59, sec. 1.

Formerly codified as KRS 26A.250.

Note: 1980 Ky. Acts ch. 396, sec. 45 would have amended this section effective July 1, 1982. However, 1980 Ky. Acts ch. 396 was repealed by 1982 Ky. Acts ch. 141, sec. 146, effective July 1, 1982

The following officers and bar governors will take office effective July 1; the officers will serve a one-year term ending June 30, 2013.

The bar governors listed below will serve a two-year term ending on June 30, 2014:

Officers

President W. Douglas Myers, Hopkinsville

President-Elect Thomas L. Rouse, Erlanger

Vice President William E. Johnson, Frankfort

Immediate Past President Margaret E. Keane, Louisville

Young Lawyers Section Chair Jacqueline Sue Wright, Maysville

Bar Governors

1st SCD

Jonathan Freed, Paducah

2nd SCD

Thomas N. Kerrick, Bowling Green

3rd SCD

M. Gail Wilson, Jamestown

4th SCD

Douglas C. Ballantine, Louisville

5th SCD

Anita M. Britton, Lexington

6th SCD

David V. Kramer, Crestview Hills

7th SCD

Bobby Rowe, Prestonsburg

Other Kentucky Bar Governors currently serving terms ending June 30, 2013, are: Serieta G. Jaggers, Princeton, 1st District; R. Michael Sullivan, Owensboro, 2nd District; Richard W. Hay, Somerset, 3rd District; Douglass Farnsley, Louisville, 4th District; William R. Garmer, Lexington, 5th District; J. Stephen Smith, Fort Mitchell, 6th District; and Earl M. “Mickey” McGuire of Prestonsburg, 7th District.

On January 20, 2012, the Kenton Circuit Court dismissed two baseless lawsuits filed against Stan Chesley and his law firm by a small number of disgruntled class members in the Diocese of Covington class action litigation.

Of the 400 class members in the Diocese of Covington case, which lasted from 2003 to 2009, six class members – all of them associated with attorney Barbara Bonar or her attorney, Thomas Clay – sued Chesley and his firm, seeking increased awards. In his January 20 dismissal order, Kenton Circuit Judge Gregory M. Bartlett ruled that the claims against Chesley and his firm were barred because the Boone Circuit Court had already determined the Diocese of Covington settlement to be “fair, reasonable and adequate following a fairness hearing and extensive analysis” and because the six class members had every opportunity to object to the settlement and distribution of funds at that time.

At the final hearing in the Diocese case, Judge Robert McGinnis, the judge who presided over that case, said: “I am completely convinced that justice has been done regarding the claimants in this case.”

This is not the first time Bonar or persons associated with her have brought baseless claims against Chesley and his firm. Similar claims by a number of the same class members were previously dismissed by the U.S. District Court for the Eastern District of Kentucky, the Boone Circuit Court, and the Kentucky Court of Appeals. Also, Bonar unsuccessfully sued Chesley and his firm in 2006, claiming she was entitled to a share of attorney fees in the Diocese of Covington litigation, although she had done no work on the case. The trial judge in that case ruled Bonar was entitled to nothing and that, in fact, she had committed numerous egregious ethical violations. That decision was affirmed by the Kentucky Court of Appeals.

—Contact Robert Steinberg at (513) 621-0267

The class is accessible online, and is actually presented in 3-D (you wear 3-D glasses to get the real 3-D effect.   (You can also view in 2-D if you don’t have the glasses.)

The subject presents the various ethics rules regarding having sex with clients.  This is a complex legal issue.  Some sexual relationships with clients are okay, but most are not okay. He takes you through the dangers that
are inherent in merging your social life with your professional life.

Professor Underwood uses other useful teaching tricks to get his message across.  We are informed that on occasion he actually used hand puppets to demonstrate his points.

The UK website describes the CLE program by Professor Underwood:

LEXINGTON, Ky. (Jan. 27, 2010) − The University of Kentucky Office of Continuing Legal Education (UK/CLE) is putting a new spin on traditional methods of
educating lawyers on current topics in the law. A new product among their spring 2011 multimedia offerings purports to be the first-ever continuing legal
education self-study multimedia product offered in 3-D.

“We’re tremendously excited about this,” said Brian Powers, technical services manager for UK/CLE. “We’re adding an element of fun and novelty to continuing legal
education, while continuing to provide substantive and important content.”

The 3-D video, entitled “Sex with Clients in 3-D,” approaches the tricky subject of the ethics of sexual relationships within the context of the attorney-client
relationship. The topic is presented by Richard H. Underwood, Spears-Gilbert Professor of Law at the UK College of Law. Underwood uses special computer-generated effects and tongue-in-cheek humor to highlight ethical dilemmas for attorneys, along with an accompanying law review-style set of written materials and citations.

The video itself is presented in traditional anaglyph 3-D, meaning that viewers wear glasses with red- and cyan-colored lenses to simulate stereoscopic vision.
Purchasers of the product will be mailed a set of these glasses to view the program. The program is a combination of live video and computer-generated
animation, utilizing some of the same software and techniques behind some of  Hollywood’s biggest blockbusters. This program also signals the start of an
expanded technical program at UK/CLE that will soon introduce self-study video programs for platforms such as the iPad, iPhone and Android OS phones.

The program “Sex with Clients in 3-D” is available as streaming video, and has been approved by the Kentucky Bar Association for 0.5 hours of CLE and ethics
credit. The cost of the program is $60. It can be ordered by downloading the order form on the UK/CLE website. For more information on this and other
UK/CLE multimedia offerings, live courses and publications, please visit the UK/CLE website at www.ukcle.com.

By Gwen Billingsley, LawReader CEO

Part of the human condition is that we ALL make mistakes. Most of our mistakes cause little damage and we learn to cut our losses and move on.

But what happens when a little mistake”results in Big Damages? Such as a Death Sentence>

On January 18, 2012, the U.S. Supreme Court handed down a decision in MAPLES v. THOMAS, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, in which Justice Ginsburg wrote, “no just system would lay the default at Maples’s death-cell door.”

The facts are:

1. Maples was convicted of murdering two people in 1997.

2. Alabama does not guarantee representation to indigent capital defendants in post-conviction proceedings.” Instead, the state relies on volunteer lawyers from public interest law firms and from the pro bono practices of major firms.

3. On appeal, two young associates from Sullivan & Cromwell’s New York office filed a post-conviction petition in state court in August 2001, arguing that Mr. Maples’s trial lawyers had been ineffective.

4. The next summer, they left the firm.

5. In May 2003, the state court denied the petition, and a clerk sent copies of the ruling to the two lawyers.

6. Sullivan & Cromwell’s mailroom returned the envelopes unopened. One was stamped “Returned to Sender — Attempted Unknown,” the other “Return to Sender — Left Firm.”

7. The deadline for an appeal came and went, and state and federal courts ruled against Mr. Maples’s request to waive the deadline.

8. An Alabama lawyer had also represented Mr. Maples as local counsel and had also received a copy of the ruling.

9. Maples was NOT advised of the denial.

Writing for the majority Justice Ruth Bader Ginsburg, in the 7-to-2 decision, said “no just system” would allow the missed deadline to be held against the inmate, Cory R. Maples, in light of how he had been treated by lawyers from Sullivan & Cromwell, who handled his case without charge after he was convicted of murdering two people in 1997.

For the sake of future justice, the culpability of all the parties involved should be addressed in a public manner.

1. The law firm of Sullivan & Cromwell should be sanctioned for their “sloppy” mail room procedures.

2. The two lawyers from Sullivan & Cromwell; Jaasi Munanka and Clara Ingen-Housz, should be sanctioned for their failure to advise the Alabama Courts; Alabama lawyer, John G. Butler Jr. and Maples of their departure.

3. Alabama lawyer, John G. Butler Jr., should be sanctioned for his failure to respond to the Alabama Courts and to Maples.

4. The state of Alabama should be encouraged to guarantee representation to indigent capital defendants in post-conviction proceedings.

5. Failure of the lower courts to recognize the 60.02 violations long before the case made it to the U.S. Supreme Court.

In a concurrence, Justice Samuel A. Alito Jr. described what had happened to Mr. Maples as “a veritable perfect storm of misfortune”.

This case got to the U. S. Supreme Court because of the incompetence of two young lawyers and a mailroom clerk! It’s more than forgetting your anniversary. It’s a life and death matter.

Why did this case require an appeal to the U.S. Supreme Court?

On January 18, 2012 attorney Stanley Chesley filed a motion in the Boone Circuit Court seeking an order allowing him to inquire into possible conflicts of interest of several former Presidents of the Kentucky Bar Association, the husband of the Bar’s chief prosecutor, and other lawyers.

The author obtained these pleadings from the Boone Circuit Clerk.

Chesley argues in his motion there is sufficient evidence to justify his legal inquiry.

He argues that the KBA Bar Counsel, Linda Gosnell, who prosecuted him for an ethics complaint before the KBA, may have had a conflict of interest. He seeks to find out if Gosnell’s husband, Leslie Rosenbaum or his law firm, Rosenbaum & Rosenbaum, “was paid a legal fee” from funds collected by Angela Ford.

Chesley states in his pleading, that Leslie Rosenbaum, the ethics prosecutors husband, posted a statement on his firm’s website advertising his handling of “Fen Phen” cases. The Rosenbaum firms web site ad stated that the firm was experienced in “mass drug tort litigation”.

Gosnell was summarily fired by the KBA on November 21, 2011 and they have denied requests from the press and others to disclose the reasons for Gosnell’s firing. KBA President Maggie Keane has denied to the press that the distribution of funds by Angela Ford played a part in the decision of the Board of Governors of the KBA to fire Gosnell. The KBA has given no reason for Gosnell’s firing.

Chesley also objects to a request by the KBA for him to refund $.7.5 million in legal fees he was paid for his work in the Fen Phen settlement. He argues that no civil judgment has been issued against him, and the KBA has no authority to order restitution when there is no Circuit Court finding that he did anything wrong. The summary judgment issued by the Boone Circuit Court in 2006 against Gallion and Cunningham, did not include the claims against Chesley which are still pending.

In some dozen tendered interrogatories which Chesley requests the Boone Circuit Court to approve, he asks for information concerning:

1. Were any Fen Phen funds paid to former KBA president Barbara Bonar or her husband who is an attorney.

2. Were any Fen Phen funds paid to former KBA president Jane Dyche or any law firm with which she is affiliated.

3. Were any Fen Phen funds paid to other attorneys by Angela Ford.

The president of the KBA participates in ethics prosecutions of attorneys. Chesley is apparently trying to determine if any payments were made by Ford to any KBA official who participated in his attorney discipline proceedings. He suggests any such involvement would be a denial of his rights under the 14th. Amendment.

Chesley was previously involved in a civil action in which Bonar sought a portion of a class action claim Chesley brought against the Catholic Church relating to child sexual abuse. The trial court ruled in favor of Chesley and denied the requested fee sought by Bonar.

Chesley’s pleading state that the Boone Circuit Court has issued a stay order preventing his discovery pending the outcome of the civil case appeal now before the Kentucky Supreme Court. His motion argues that since no summary judgment was issued against him, that he should be allowed to pursue discovery in his own defense.

The pleadings quote U.S. District Judge Danny Reeves as saying that Ford made disbursement to “other attorneys” out of the Fen Phen funds she seized. An article by Andrew Wolfson of the Louisville Courier-Journal quotes Angela Ford as admitting that part of her legal fees was “paid to other attorneys”.

Chesley submits other examples of conduct by the KBA which he says justifies his request to allow him to continue discovery in his defense in the civil case.

“The abrupt termination (of Gosnell) plainly raises questions as to whether Bar Counsel’s termination was in any way related to the accounting (sought by the U.S. Attorney from Angela Ford concerning her handling of clients funds in the Fen Phen case)….the unusual circumstances attendant to the abrupt termination —coupled with the refusal of the KBA to make any public statement concerning the reasons for the termination- has resulted in the understandable inference that the termination was for cause, and the understandable concern that the cause could rise to the level of prosecutorial misconduct in his discipline case.”

“The first two Trial Commissioner’s appointed in Mr. Chesley’s disciplinary proceedings were recused for conflicts, and Bar Counsel showed little concern for working to choose a conflict-free Trial Commissioner. The first Trial Commissioner, Frank Doheny Jr. recused due to his law firm’s conflicts with Mr. Chesley.”

“Roderick Messer, presided over Mr. Chesley’s disciplinary hearing for approximately five days before Mr. Chesley learned that the law firm of Judge Messer’s son was engaged in Abbott’s collection efforts.” (The Abbott case is the Boone Circuit Court case brought by Angela Ford.)

The U.S. Attorney’s office has been seeking information about Angela Ford’s handling of some $42 million dollars in Fen Phen assets she has seized. She resisted the request for an accounting in a hearing before U.S. District Judge Danny Reeves almost a year ago.

Judge Reeves ordered her to file the accounting. Ford then appealed that ruling to the 6th. Circuit Court of Appeals. The 6th. Circuit sided with the U.S. Attorney and ordered Ford to provide the accounting to the Government by Nov. 9, 2012.

LawReader confirmed with the U.S. Attorney’s office that the filing “was in the possession” of the U.S. Attorney, and “they were looking at it.” Apparently this filing was not the complete accounting sought by the Government attorneys. (This conclusion is based on our review of her Dec. 1, 2012 pleadings filed with the 6th. Circuit Court of Appeals.)

Apparently Ford filed only a partial accounting which revealed the names of banks she dealt with but she did not deliver an accounting that fully described how the $42 million was distributed. She apparently failed to provide the names of the attorneys and other parties with whom she shared some $13 million in attorney fees.

Shortly after the incomplete accounting was delivered to the U.S. Attorney in early November of 2011, Ky. Bar Association Bar Counsel Linda Gosnell was summarily fired. The KBA President Maggie Keane, in a November interview with the Courier-Journal, denied that Gosnell’s firing had anything to do with the distribution made by Ford to “other lawyers”.

As of today, Jan. 21, 2012, it has been 60 days since Linda Gosnell was fired, and the KBA has not informed the 17,000 dues paying members of the Ky. Bar Association of the reasons the Bar Counsel was fired. A veil of secrecy clearly exists on why Gosnell was fired.

The reasons why it is being applied to this firing could be based on several reasons, some of which the author is not able to discuss due to the Supreme Court Rules. We do not purport to have any inside information on this subject. We do note that the KBA has a history of sealing information which concerns their administrative activities. We cite the sealed “Houlihan Report” as an example of the KBA’s refusal to inform their members of the actions of the KBA.

The firing of the Bar Counsel has been the basis for filings made by attorney Stan Chesley. Chesley is a party in the Boone County civil suit, and currently has an appeal pending before the Kentucky Supreme Court regarding the KBA’s prosecution of ethics allegations against him.

Chesley is seeking discovery of how the Fen Phen money seized by Ford was distributed. If anyone on the distribution list was involved in the discipline prosecution against him, then this may be relevant evidence and might provide a defense to him against the actions of the KBA.

On Dec. 1, 2012, Ford filed another appeal with the 6th. Circuit. She challenges the jurisdiction of the U.S. Government to inquire into her handling of these funds, she claims in her pleadings that the accounting order demands information about her personal assets. We don’t’ understand exactly from her pleadings what she means by the term “personal assets” but it suggests that she is saying the $13 million in legal fees she paid herself “and other lawyers”, are her “personal assets”. She argues that the Government has no jurisdiction to inquire into how she handled at least this $13 million dollars.

Ford has two ways she could justify a legal fee of $13 million dollars. If she gets a final order in the Boone County civil case, and if she has a contingent fee agreement with the Fen Phen plaintiffs, then the $13 million would represent about 33% of the total recovery of $42 million.

Does she have a signed contingent fee agreement with all 440 plaintiffs? Kentucky rules of practice require that all contingent fee arrangements be in writing.

In Ford’s December 1, 2012 pleadings to the 6th. Circuit she states;

“Ford collected and distributed $40.2 million to her clients, who in turn compensated Ford in accordance with their contingent fee agreements with her.” Her pleadings does not claim that the agreement was in writing. This suggests that up to $1.8 million may have been withheld by Ford for the 33 victims she does not represent.

Is this contingent fee contract signed? If she doesn’t have a signed contingent fee contract and gets a final judgment in her favor in the civil case, she could also ask the state court to set a fee based on her hourly rate, or on a quantum merit award. She does not state in her pleadings that she has a “signed” contingent fee agreement.

Her civil award was by Summary Judgment. That summary judgment order was appealed and was reversed by the Court of Appeals. The Court of Appeals ordered a new trial. Ford asked for Discretionary Review by the Kentucky Supreme Court, and recently the Supreme Court in fact granted Discretionary Review. But at this point, even though she has apparently distributed all of the $42 million, including her fee of $13 million, she has no final judgment.

A ruling by the Ky. Supreme Court could take a few months but is likely to take up to a year.

Another way Ford could be paid an attorney’s fee is by an order of the U.S. District Court awarding her a fee. The Federal Court ordered a substantial sum to be paid as restitution to the Fen Phen plaintiffs. We are informed that an award to Ford by the Federal Court for her work in the civil case is not automatic, and is a discretionary option of the Federal Judge. We are unaware of any fee award by Judge Reeves.

We can see no way the Federal Court could award a fee to Ford until the criminal case is final. On Jan. 17th. Oral arguments were made to the 6th. Cirt. by Gallion and Cunningham contesting their conviction in the criminal case. So the criminal conviction is not final. It is possible that the 6th. Circuit could order a new trial in the criminal case.

The author attended the oral arguments and substantial arguments were submitted by the defense attorneys. The argument for a new trial decision is of course at the discretion of the 6th. Circuit panel, but there were at least three arguments made by the defendants, and any one of the three claimed errors could justify a new criminal trial.

Perhaps we are missing something, but it appears highly unusual for $42 million dollars to be seized and distributed without a final order in either the civil case or the criminal case.

In pleadings filed by Ford on Dec. 1, 2012, her second appeal to the 6th. Circuit, challenged the jurisdiction of the Federal Court to examine her “personal” assets. In the pleading she admitted that “the Mandatory Victim’s Restitution Act of 1996, 18U.S.C. Section 3663A, 3664, provided the U.S. District Court jurisdiction over post-conviction proceedings against defendants William J. Gallion and Shirley A. Cunningham, Jr.”

Ford stated in her December filing to the 6th. Circuit:

“In June 2011, the district court ordered Ford, the lawyer for 407 victims in a Kentucky state-court lawsuit, Abbott v. Chesley, “to provide a full and complete accounting, including the location, “of all funds collected by her in (Abbott)…and not distributed to victims.”

Note: She admits to representing only 407 of the approximate 440 so called victims.

On September 9, 2011, the district court denied Ford’s motion to “alter, amend, or vacate” the District Court’s order for an accounting.

“On September 23, 2011, Ford appealed the order requiring her to provide the location and an accounting of her fees and the order denying her motion to alter, amend, or vacate.”

Note: She uses the word “fees’, which can only mean her attorney fees paid out of the $42 million dollars in assets she had seized.

She is appealing the order which directed her to “provide the United States with an accounting of funds “collected by her in (Abbott) and not distributed to the victims.”

Note: Funds not distributed to the victims clearly means attorney fees she retained or any funds she has withheld from distribution to the victims. This could be up to $1.8 million dollars..

We have not seen any proof or admission about a distribution by Ford of assets she seized to the some 33* victims she does not represent. The U.S. Attorney apparently wants to know if she is still holding funds for victims she does not represent. Did she distribute the $42 million only to herself, other attorneys, and only to her clients, or did she hold some money back for the 33 victims she does not represent?

(Footnote: *The actual number of victims not represented by Ford is unclear as we have seen citatins of different numbers in various articles and pleadings.)

Chesley’s pending motions filed with the Boone Circuit Court earlier this week, are apparently supportive of his desire to learn the names of the “other attorneys” with whom Ford shared her $13 million dollar legal fee.

It is possible that the Civil Court may approve Ford’s fee of $13 million if there is ever a final judgment in the Boone Circuit Court case. It is possible that the Federal Court could grant her a fee, which may or may not be $13 million, as a part of its restitution order in the criminal action, but it is also possible, that even if there is a new criminal trial and a subsequent conviction, that the Federal court may award a small fee or no fee. That option appears to be within the Federal Judges discretion.

Ford’s pleadings quote an argument by the U.S. Attorney’s office that, “The government stated that it was concerned that as a result of the (Kentucky) Court of Appeals’ opinion, the Abbott plaintiffs might be required to repay amounts collected to satisfy the Abbott judgment.

One issue raised by Ford is that the $20 million seized from the Kentucky Fund for Healthy Living (KFHL) cannot be ordered to be refunded because the KFHL did not appeal the Boone Circuit summary judgment order. It is reported to the author that the Boone Circuit court trial judge, William Wehr, ordered that the charitable trust was not to expend any additional funds for its attorneys. In other words, the KFHL was denied the right to defend itself on an appeal.

Ford argues in her brief that at least the $20 million seized from the KFHL is not in dispute and she was entitled to distribute those funds and to pay herself a fee out of these funds.

We can only speculate as to whether or not a new trial in the Boone Circuit case would reopen the claim of the KFHL to defend itself. In the author’s 41 years as a lawyer, we have never heard of an order by a trial judge that a defendant could not defend itself, but we weren’t there and we have not seen Judge Wehr’s findings or order.

The main argument by Ford is that the District Court has no jurisdiction to obtain an accounting her funds. She argues that the Mandatory Victim’s Restitution Act of 1996, 18U.S.C. Section 3663A, 3664, applies only to “judgment debtors” and does not apply to her.

We can imagine that the U.S. Attorney may argue that it’s duty is to look out for the interest of all 440 victims, and this may require an examination of the handling of all funds coming through the hands of Angela Ford.

Johnson practices law in Frankfort, Kentucky. Johnson was opposed by William H. Wilhoit of Grayson.

William E. “Bill” Johnson is a practicing lawyer with offices at 326 West Main Street, Frankfort, Kentucky. He has been
in private practice since January 1, 1959. He was born and reared in Pendleton County and graduated from Falmouth High School.

Since 1959 he has maintained a general practice with a heavy emphasis on trial work, both civil and criminal.  He has practiced in numerous courts in
Kentucky and in federal and state proceedings in other states and the territory of the Virgin Islands.

In the one race for the Board of Governors , Thomas N. Kerrick of Bowling Green defeated  Ronald E. Hines of Elizabethtown.
.

By LawReader Senior Editor Stan Billingsley – Jan.17, 2012
We visited the Federal Court of Appeals for the 6^th. Circuit for the first time on Jan. 17^th. We wanted to see the arguments for both sides.

The courtroom on the 4^th. Floor had walls covered with walnut paneling twelve fee high. The ceiling was about 30 feet high. A carved wooden eagle behind the elevated judges bench was strikingly similar to the
Eagle borne on a staff by Roman Centurions when they went into battle against the barbarians.

Louis Sirkin of Cincinnati presented a ten minute argument in behalf of William Galllion and Cliff Harviel presented a ten minute argument in behalf of defendant Shirley Cunningham.
The U.S. Government was well represented by V.J. Shanker.

William Gallion is serving a 25 year sentence. Shirley Cunningham is serving a 20 year sentence.

Neither were transported from prison to attend the oral arguments, but they were both represented by family members.

The oral argument was before Judge Clay, Chief Judge Batchelder, and Judge Gillman.

In a total of 20 minutes argument you can’t raise many issues. One hopes and expects that the Judges assigned to the appeal and their legal clerks will fully read the extensive file.

The questions asked by the three appellate judges, who each had a file in front of them about 10” high, indicated that they were well informed on the facts of the case and the legal arguments.

Sirkin, is known as an outstanding First Amendment lawyer from the part of Cincinnati where the TV docudrama Harry’s Law is filmed, (just around the corner from Arnold’s).

Sirkin and  Harvill presented three main arguments:

Federal District Judge Danny Reeves erred in denying the defendant’s the right to call their own expert witness on the issue of whether or not he settlement was an “aggregate” settlement or a “class
action”. In the first trial, Judge Bertlesman allowed the defendants to use the expert in their defense, and ruled that the settlement was a “class action” settlement.  Judge Clay raised this issue with Mr.
Shanker.

It was noted that Judge Reeves let the U.S. Government call an expert witness on the same topic, but apparently refused to allow the Defendant’s witness to qualify as an expert on the same issue, stating the
grounds that the defense expert  “ had not had his work published”.

Several appellate judges appeared to the author to having raised eyebrows at the argument that a witness could not be qualified as an “expert witness” unless he had published his theories. (This was Judge
Reeves finding.)

The defense attorneys pointed out examples of the police being allowed to testify as “experts’ on various topics, and few of them have ever had their theories published in recognized journals.

The second argument and claim of error, involves an alleged violation of CR 404-B, which forbids a party from offering evidence of past bad acts in order to sully another parties “character”. The federal rule is
identical to the Ky. 404-B rule.

It was argued that Linda Gosnell, the then Bar Counsel for the KBA, was called by the U.S. Government as a witness (Gosnell was fired by the KBA on Nov. 21^st.). She was allowed over objection to introduce
a judgment of the Kentucky Supreme Court in the disbarment of Gallion and Cunningham attorney discipline cases. It was reported that Gallion and Cunningham each voluntarily agreed to surrender
their law licenses, and they never had a trial or a hearing where they could cross-examine or confront anyone.

The original allegations against Gallion and Cunningham by the Bar Counsel, totaled 22 different charges. The Ky. Supreme Court in formalizing the disbarment of the defendants, issued a finding on each of the 22 counts.

The U.S. Government at the criminal trial, called Gosnell and had some of the 22 counts displayed on a screen, and other of the charges were read by Linda Gosnell to the jury.

These 22 counts by the KBA clearly were highly prejudicial to the defendants.  This appears to be the very reason that CR 404-B exists in state and federal
courts.

Government attorney V.J. Shankar appeared to recognize the problem with these civil findings of the Ky. Supreme Court being used to prove the bad character of the defendant’s in a Federal Criminal prosecution.

Shanker argued that the error was harmless, and that the judge (some 36 days later) issued a jury instruction which may or may have not directed the jury to ignore this 404-B evidence.

Shankar used his 15 minutes wisely, stayed on topic and did the best that he could with the facts before him.

Sirkin rebutted the Government with an argument akin to the difficulty in “unringing a bell” type argument.

A third argument dealt with Judge Reeves finding that the settlement was an “aggregate settlement” and not a “class action”. It was argued by Sirkin and Harvill ,  that this
ruling was an improper “finding on a factual issue” which constitue a summary judgment on this factual issue. Sirkin argued the jury should have decided that question, not the Judge.

Judge Reeves has two other cases currently pending in the 6^th. Circuit where he ruled that an attorney cited by the Ky. Bar Association has no constitutional right to appeal to the Federal Courts for a violation of their
civil rights. He ruled that the Federal Courts do not have jurisdiction to review the constitutionality of state Bar Rules.  His ruling in the John M. Berry case held that the state Bar Association could sanction any attorney for making a “true”
statement if it was “reckless”.  The Bar Counsel apparently gets to determine if any statement made by an attorney is “reckless”.

That argument has been rebutted by the ACLU, with citation of some 50 cases where Federal courts have held that the Federal Court do indeed have jurisdiction to hear such issues.

The entire oral argument took just over 35 minutes. The decision of the 6^th. Circuit panel may take 30 days or perhaps up to a year….that is up to them.

We have received several phone calls from parties asking our opinion about how the court will rule on the request for a new trial. We don’t purport to know all the facts, and concede that the court surely has more
information about the case than we do, but just looking at the refusal to allow the defendant to call an expert, after having allowed the Government to call a law professor, seems serious enough by itself to justify a new trial.

Secondly, the 404-B rule seems to be very strong in outlawing the 22 allegations read to the Jury by the Bar Counsel of the KBA….and this is  especially troubling since the defendants did not have the opportunity to
confront their accusers or to cross-examine them on these 22 allegations. This  is pretty poisonness material, and by itself could easily provide the basis for a new trial ruling.

We have had our predictions on how courts would rule often wrong in the past.

The author was raised in Casper, Wyoming, the heart of “real” cowboy country, and we recall the western concept that “Before you can hang a cowboy, you should at least give him a tolerable fair trial.” We
believe the defendant’s arguments that they were denied a “tolerably fair trial” has merit, and we will not be surprised if the 6^th. Circuit doesn’t agree.

(We would argue that in Wyoming, the cowboys don’t wear fancy silver tipped boots like those Hollywood cowboys that live in Texas. The Wyoming cowboys don’t mind a good hanging, but they are more often than not
willing to tolerate a delay long enough for the defendant to have a fair trial.)
We point out that the 6^th. Circuit panel is not being asked to acquit the defendants, only to determine if they are entitled to a new trial.

Oh yes, there was one other argument made by Mr. Shanker in behalf of the Government that caught our attention.

In an attempt to disparage the defendants  Shanker  stated that “they lied to Judge Bamberger”.

That same statement was made by the KBA Trial Commissioner in the ethics prosecution of Judge Bamberger. That may or may not be true, but we are confused on how the KBA
could disbar a judge for making rulings on which he was misinformed by the attorneys appearing before him. (??)

By LawReader Senior Editor Stan Billingsley

We visited the Federal Court of Appeals for the 6^th. Circuit for the first time on Jan. 17^th.  We wanted to see the arguments for both sides.

The courtroom on the 4^th. Floor had walls covered with walnut paneling twelve fee high. The ceiling was about 30 feet high.   A carved wooden eagle behind the
elevated judges bench was strikingly similar  to the Eagle borne on a staff by Roman Centurians when they went into battle against the barbarians.

Louis Sirkin of Cincinnati presented a ten minute argument in behalf of William Galllion and another attorney presented a ten minute argument in behalf of Shirley Cunningham.

The U.S. Government was well represented by V.J. Shanker.

William Gallion is serving a 25 year sentence.   Shirley Cunningham is serving a 20 year sentence.

Neither were transported from prison to attend the oral arguments, but they were both represented by family members.

The oral argument was before Judge Clay, Chief Judge Batchelder, and Judge Gillman.

In a total of 20 minutes argument you can’t raise many issues.  One hopes and expects that the Judges assigned to the appeal and their legal clerks will fully read the extensive file.

The questions asked by the three appellate judges, who each had a file in front of them about 10” high, indicated that they were well informed on the facts of the case and the legal arguments.

Sirkin, is known as an outstanding First Amendment lawyer from the part of Cincinnati where the TV docudrama Harry’s Law is filmed, (just around the corner from Arnold’s).

Sirkin presented three main arguments.

Federal District Judge Danny Reeves erred in denying the defendant’s the right to call their own expert witness on the issue of whether or not he settlement was an “aggregate” settlement or a “class
action”.   In the first trial, Judge Bertlesman allowed the defendants to use the expert in their defense, and ruled that the settlement was a “class action” settlement.   Judge Clay raised this issue with Mr.
Shanker.

It was noted that Judge Reeves let the U.S. Government call an expert witness on the same topic, but apparently refused to allow the Defendant’s witness to qualify as an expert on the grounds
that “he had not had his work published”.

Several appellate judges appeared to the author to having raised eyebrows at the argument that a witness could not be qualified as an “expert witness” unless he had published his theories. (Judge
was Judge Reeves finding.)

The defense attorneys pointed out examples of the police being allowed to testify as “experts’ on various topics, and few of them have ever had their theories published in recognized journals.

The second argument and claim of error, involves an alleged violation of CR 404-B, which forbids a party from offering evidence of past bad acts in order to sully another parties “character”.  The federal rule is identical to the Ky. 404-B
rule.   It was argued that Linda Gosnell, the then Bar Counsel for the KBA, was called by the U.S. Government as a witness (Gosnell was fired by the KBA on Nov. 21^st.).   She was allowed over objection to introduce
a judgment of the Kentucky Supreme Court in the disbarment of Gallion and Cunningham attorney discipline cases.   It was reported that Gallion and Cunningham each voluntarily agreed to surrender
their law licenses, and they never had a trial or a hearing where they could cross-examine or confront anyone.

The allegations against them by the Bar Counsel totaled 22 different charges.   The Ky. Supreme Court in formalizing the disbarment of the defendants, issued a finding on each of the 22 counts.
The U.S. Government called Gosnell and had some of the 22 counts displayed on a screen, and other of the charges were read by Linda Gosnell to the jury. These 22 counts by the KBA clearly were highly prejudicial to the
defendants.  This appears to be the very reason that CR 404-B exists in state and federal courts.

Government attorney V.J. Shankar appeared to recognize the problem with these civil findings of the Ky. Supreme Court being used to prove the bad character  of  the defendant’s
in a Federal Criminal prosecution. He argued that the error was harmless, and that the judge (some 36 days later) issued a jury instruction which may or may have not directed the jury to ignore this 404-B evidence.  Shankar used his 15 minutes wisely, stayed on topic and did the best that he could with the facts before him.

Sirkin rebutted the Government with an argument akin to the difficulty in “unringing a bell” type argument.

A third argument dealt with Judge Reeves finding that the settlement was an “aggregate settlement” and not a “class action” , was an improper “finding on a factual
issue” which constitution a summary judgment on this factual issue.  Sirkin argued the jury should have decided that question not the Judge.

Judge Reeves has two other cases currently pending in the 6^th. Circuit where he ruled that an attorney cited by the Ky. Bar Association has no constitutional right to appeal
to the Federal Courts for a violation of their civil rights.  He ruled that the Federal Courts do not have jurisdiction over unconstitutional Bar Rules.
That argument has been rebutted in at least one of the two Kentucky appeals from Reeves court, with citation of some 50 cases where Federal courts have
held that the Federal Court do indeed have jurisdiction to hear such issues.

The entire oral argument took just over 35 minutes.  The decision of the 6^th. Circuit panel may take 30 days or perhaps up to a year….that is up to them.

We have received several phone calls from parties asking our opinion about how the court will rule on the request for a new trial.   We don’t purport to know all the facts, and concede that the court surely has more
information about the case than we do, but just looking at the refusal to allow the defendant to call an expert, after having allowed the Government to call a  law professor, seems serious enough by itself to justify a new trial.

Secondly, the 404-B rule seems to be very strong in outlawing the 22 allegations read to the Jury by the Bar Counsel of the KBA….and this is especially troubling since the defendants did
not have the opportunity to confront their accusers or to cross-examine them on these 22 allegations.   This is pretty poisonness material, and by itself could easily provide the basis for a new
trial ruling.

We have had our predictions on how courts would rule often wrong in the past.

The author was raised in Casper, Wyoming, the heart of “real” cowboy country, and we recall the western concept that “Before you can hang a cowboy, you
should at least give him a tolerable fair trial.”   We believe the defendant’s arguments that they were denied a “tolerably fair trial” has merit, and we will not be
surprised if the 6^th. Circuit doesn’t agree.

(We would argue that in Wyoming, the cowboys don’t wear fancy silver tipped boots like those Hollywood cowboys that live in Texas.  The Wyoming cowboys don’t mind a
good hanging, but they are more often than not willing to tolerate a delay long enough for the defendant to have a fair trial.)

We point out that the 6^th. Circuit panel is not being asked to acquit the defendants, only to determine if they are entitled to a new trial.

Oh yes, there was one other argument made by Mr. Shanker in behalf of the Government.

In an attempt to disparage the defendants he stated that “they lied to Judge Bamberger”.  That same statement was made by the KBA Trial Commissioner in the ethics prosecution of Judge Bamberger.   That may or may not be true, but we are confused on how the KBA could disbar a judge for making rulings on which he was misinformed by the attorneys appearing before him.

Rights in the Workplace

As a condition of getting and keeping their jobs, millions of employees in
the United States have signed agreements to take any disputes with their
employers to arbitration rather than court. Typically, the agreements also
prohibit the arbitrator from consolidating similar claims.

The California Bar is charged with reviewing the discipline of 230,000 lawyers. Their discipline backlog is now six months, Kentucky with only 17,000 lawyers frequently takes 2
to eight years to complete discipline prosecutions.

Many Kentucky ethics investigations take years from date of complaint to completion of the prosecution process.  It is not uncommon in Kentucky to see ethics investigations and prosecutions take 4 to 8 years.

During the time the investigation is under way the public is not made aware of claims against the charged attorney, and this prevents the public from making an informed choice about hiring an attorney who may be charged with serious allegations of incompetence.

The KBA Board of Governors is considering changes in the operation of the Bar Counsel’s Office.   They would do well to contact California and see how they reduced their caseloads and obtained a target of completing
investigations within six months.

See california bar article:
CALIFORNIA State Bar clears backlog of ATTORNEY DISCIPLINE  investigations

http://www.calbar.ca.gov/AboutUs/News/201201.aspx

Media Contact: William Chiang 415-538-2283 william.chiang@calbar.ca.gov
SAN FRANCISCO (Jan. 3, 2012) – After more than four months of concentrated effort under the guidance of Acting Chief Trial Counsel Jayne Kim,
the State Bar of California has eliminated its backlog of investigations into California lawyers accused of professional misconduct. This fulfills a pledge made by the bar’s
executive leadership last summer to permanently eradicate an issue that has existed since at least the 1980s.

Governed by state law, bar investigations are generally considered in “backlog” if an investigation is more than six months old and has not been completed or otherwise
resolved. As of July 1, 2011, the bar had more than 1,500 investigations with backlog status with approximately 1,500 additional cases scheduled to roll into backlog had the Bar not completed or
resolved those investigations.

“While we mark this success with pride, we also understand that the long-term challenge remains ahead of us,” said Joseph Carlucci, assistant chief trial counsel, who headed the LA backlog team. “We are committed to
maintaining this success by making sure that all future disciplinary cases are addressed promptly and appropriately.”

Kim, a former bar prosecutor and assistant US attorney in Southern California, returned September 2011 as the bar’s chief enforcer. While acknowledging the bar’s historic inability to control its backlog inventory,
Kim declared an end to the days of a chronic investigations backlog at the State Bar.

“It’s a new day at the State Bar,” she said. “It’s exciting to be back and to see the high level of commitment by staff. This success is a result of their ability to step up and shine during challenging times.”

Jon Streeter, president of the bar’s 23-member Board of Trustees, underscored the board’s efforts to create management parameters meant to help ensure a timely disciplinary process
from initial complaint through final resolution.

“That work to create the necessary policies is underway,” said Streeter, who took office as president in September 2011. “And this board fully understands the critical, long-term importance of this work, not just in terms
of disciplinary efficiencies, but on behalf of all Californians.”The State Bar of California is an administrative arm of the California Supreme Court. All lawyers practicing law in California must be members of the State Bar. The mission of the State Bar is to “Preserve and improve our justice system in order to ensure a free and just society under the law.”

Kim added that her office has already initiated significant improvements to its organizational structure and to training development. She also credited State Bar executives – led by Executive Director Joe Dunn, a
former state senator from Orange County – for spearheading the right level of philosophical and operational changes needed to permanently end the backlog issue. “The bar’s primary focus is public protection,” Kim explained. “And we
cannot be an effective consumer protection agency if we are constantly battling backlogs.”

Once an investigation is complete, Kim added, the case is generally considered ready for filing of charges in State Bar Court or other forms of resolution, including dismissal.

During this post-investigation phase of the case, the bar and the accused lawyer may also engage in various settlement discussions that could require additional time and generate a post-investigations backlog. Since her return to the bar last fall, Kim and her office have reduced this post-investigations backlog inventory from approximately 600 to less than 190.

“Jayne and her team truly deserve tremendous credit,” said Dunn, who made the so-called ‘Zero’ pledge in July 2011. “She saw what needed to be done and she redirected her resources and got it done. She’s the bar’s ‘new
sheriff’ and I have absolute confidence in her.”

If you have obtained a directed verdict on liability, the trial judge should advise the jury that this has occurred.  The jury can then consider
if any damages should be awarded.   In a recent unpublished decision the Ct. of Appeals upheld this doctrine.  While this case is unpublished it cites
published authority to support this ruling.

HELEN OGATA MCGILL  vs. ANTHONY CLAY AND SHELTER MUTUAL INSURANCE COMPANY

2010-CA-001280 Court of Appeals case released on Jan. 6, 2012.

“Based on its oral statements, the trial court seemed to believe that it could not inform the jury about the directed verdict after they had retired
to deliberate. We disagree.

“The trial court has the discretion to advise the jury that it has entered a directed verdict against a party. Hanson v. American National Bank & Trust Co., 865 S.W.2d 302, 307 (Ky. 1993), overruled
on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483 (Ky. 2002).

“The court also has the discretion “to comment on the law when the jury so requests.” Thompson v. Walker, 565 S.W.2d 172, 174 (Ky. App. 1978). The trial court should exercise caution when doing so to avoid unduly influencing
the jury.

“Furthermore, the court is not required to “explain or enlarge upon the instructions if it believes [them] to be clear and self-explanatory.” Id.

“However, the court errs if it makes a “decision on the issue without knowing it has discretion, and exercising that discretion.” Bellamy v. Pathak, 869 S.W.2d 45, 47
(Ky. App. 1993).”

Recent statistics about the cases decided by the Ky. Ct. of Appeals reveal a record low number of opinions rendered during 2011. In 2011 the Court delivered 1,172 opinions. In2010 it was 1,213, and for 2009 it was 1,451.

Before 2009 we find no report with less than 1500 decisions. In prior years the number of opinions ran from 1800 to 2100 a year.

We don’t know what this reduction in opinions reveals. It may be that less cases are being appealed. It was reported to LawReader several years ago that the Supreme Court had “requested” that less opinions by the Court of appeals be formerly published, and other reports suggest that Ct. of Appeals judges were “requested” by the Supreme Court to reduce the number of pages in their opinions.

Our review of every Ct. of Appeals opinion in the last two years, reveals that while there have been some reduction in the average number of pages per opinion, that every week there are several decisions that are in excess of l5 pages.

Anyone having any information on the reduction in the number of opinions are invited to share their thoughts with LawReader at : Firstjudge@aol.com.

The following letter is not edited by LawReader.  We welcome responses to anything we publish.

**************

I am pleased that you have agreed to post my response without editing.  Having  worked in the KBA Office of Bar Counsel for
seven years, I am aware of the true  facts that underly many of the topics about which you speculate quite often.

I  left that office last year and opened my own practice so I am now allowed to reply to such commentary if I wish.  While I have no intention of debating all  of the sundry allegations that you have published
about the KBA and Ms. Gosnell and related matters, I assure your readers that very little of the anonymously sourced claims that you have published here have
any basis in actual fact to the best of my knowledge.  However, several of your suggestions for procedural and structural changes in the disciplinary process are valid in my
opinion.

The reason that I respond is that I know Sarah Coker and have worked with her professionally and can
absolutely assure you that she has always conducted herself appropriately and ethically.  There is simply no reason
to continue publishing baseless, unsubstantiated criticisms of someone who is simply doing  her job.

There are many things that I would change about the Office of Bar Counsel if I were running the
place.  One of the things that most certainly would not change would be Sarah Coker.  Unless she had simply become exhausted with
the job and I could not convince her to stay.

Cary Howard, Jr.

(Former Deputy Bar Counsel)

By Todd McMurtry | tmcmurtry@dbllaw.com

Leading jurist and legal scholar Richard Posner, of the United States Court of Appeals for the Seventh Circuit,
is known for his writings on law and economics. He can also be a harsh critic of attorneys. In Monica del
Carmen Gonzalez-Servin vs. Ford Motor Company, No. 11-1665 (7^th Cir. 2011), Judge Posner authored a stinging critique of an attorney
who failed to address dispositive precedent in his client’s appeal brief.

Citing Mannheim Video, Inc. v. County of Cook, 884 F.2^nd 1043, 1047 (7^th Cir. 1987),
Judge Posner stated that the “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not
exist is as unprofessional as it is pointless.” He went on to identify offending counsel by name and found him “especially culpable” because he failed
not only to cite the dispositive authority in his initial brief, but then did not address it in his reply brief after appellee’s counsel discussed it at
length in his response brief. Posner stated that “when there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing
or reserve a challenge to it for a petition for certiorari but may not simply ignore it.”

Adding salt to the wound, Judge Posner included photos of an ostrich and an attorney, each with its head buried
in the sand. While Judge Posner deftly addresses the issue through humor, the reader should come away from this case with renewed appreciation of counsel’s
duty to show candor to the tribunal. Kentucky Civil Rule 11 is clear on thispoint. When an attorney signs a motion, he certifies that to “the best of his
knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for
the extension, modification or reversal of exiting law, . . .”

The Rules of the Kentucky Supreme Court governing the practice of law in Kentucky also address this issue. SCR
3.130(3.3)(a)(2) dictates that “a lawyer shall not knowingly fail to disclose to the tribunal published legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” In the commentary accompanying this rule, the
Court states that “legal argument based on a knowingly false representation of law constitutes dishonesty to the tribunal.”

Clearly, the system of justice is well-served when counsel shows an unrelenting candor to the court and opposing
counsel. The centrality of this point was hammered home by Judge Posner.

Todd McMurtry is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

Subscribe to the DBL Civil Litigation blog.

A source close to the KBA has reported to LawReader that a committee has been appointed by the Board of Governors to write a new job description for the KBA Bar Counsel, and to consider the employment of  separate legal counsel to advise the Board of governors.   The Board of Governor’s will possibly consider these recommendations in their next meeting on Jan. 15, 2012.
Under current Supreme Court Rules the Bar Counsel (chief ethics prosecutor) is the legal advisor of the Board of Governors.
This is considered by many to be a conflict since the prosecutor gives legal advice to the Board who acts in a judicial function when they hear
attorney discipline cases.  It has been suggested by LawReader that the new Legal Advisor to the Board of Governors
should serve as an Ombudsman to monitor the actions of the Bar Counsel’s office.

It was also reported that an active search is under way for a new Bar Counsel to fill the vacancy created by the firing of Linda Gosnell.

It has been 45 days since the Bar Counsel was discharged, and the KBA has not announced the reason for the firing of Linda Gosnell. Perhaps the Board will explain to the members of the Bar on Jan. 15th. why they fired Gosnell.??

The results for the election for Vice-President of the KBA will be announced at the next meeting of the Board of Governor’s meeting on Jan. 15, 2012.
William Johnson of Frankfort is running against  William Wilhoit of Grayson, Kentucky.