Archive for October, 2011

KBA BAR COUNSEL STRIKES BACK AT ACQUITTED ATTORNEY

Saturday, October 29th, 2011

By Stan Billingsley, Senior Editor of LawReader.com       Oct. 30, 2011
In late October the KBA Board of Governors issued their decision on l9 ethics charges against Kenton attorney Eric Deters.  The Board acquitted Deters of l5 of the l9 charges.

The Bar Counsel of the Kentucky Bar Association has not taken well to their defeat, and has recently filed a new complaint against  Deters.   Some take the view that such a prosecution brought only after Deters defense was largely vindicated, indicates an act of retaliation against Deters for having the audacity of defending himself.

Under the strange organization of the KBA discipline process, the Bar Counsel is employed by and administered by the Board of Governors.   But strangely, the decision of the Board of
Governors in the Deters ethics cases, or any other ethics prosecution, can be appealed by the Bar Counsel, whom they administer and employ.  If the Supreme Court agrees with the Bar
Counsel in an appeal they can overrule the findings of the Board of Governors.
Yes, the Bar Counsel can appeal its employers decisions to the Ky. Supreme Court.  It is unknown at this time if the Bar Counsel will appeal their drubbing in the
Deters case, but Deters has indicated to LawReader that he will appeal the four minor counts of which he was convicted.

The Bar Counsel sought a long suspension of Deters, but the Board recommended a suspension of only 61 days.

Under the arcane rules of the Kentucky KBA discipline process, the prosecutor has the power to unilaterally pull a number out of thin air under the guise of setting the costs of prosecution of an
attorney.   The Bar Counsel notifies the Disciplinary Clerk of the amount claimed, and before the defendant attorney may file an appeal to the Supreme Court, he must post a 100% surety.

In Deters case the Bar Counsel has submitted a claim for $52,900 as their costs in the investigation and prosecution of Deters.  Yes, that means that in order for Deters to appeal to the Supreme Court he must post $52,900.  No, there is no rule for him to have a hearing challenging the cost bill submitted by the Bar Counsel.

One would think that the KBA should not be allowed costs when they lost l5 of 19 charges.
Minimum fairness would seem to require a reduction in the cost bill of at least 15/19 of the total claimed, since they lost on 15 counts.  That would reduce the cost bill from $52,900
to only $11,047.   Or perhaps the KBA should pay Deters costs for his acquittal on l5 counts?

A troubling question presents itself.  Since the Bar Counsel’s office  apparently gets to keep any court costs awarded by the Supreme Court, are they running up the tab in order to enhance
their budget?
One charge against Deters was that he charged a client an “exorbitant fee” of $1500 in a foreclosure action.   Does this rule not apply to attorneys for
the Bar Counsel’s office?

LawReader has review hundreds of ethics cases by the KBA and has learned that many complaints against attorneys occurred up to eight years prior to a decision being issued by the Supreme Court.  There is really no speedy trial rule being
enforced in ethics discipline cases.

There is no statute of limitations, even for minor procedural errors claimed against an attorney.

The “speedy trial” rule applies to murderers and rapists, but it apparently doesn’t apply to attorneys charged with minor offenses.  (Only one Kentucky appellate
court ruling cites the Speedy Trial rule, but does not require a dismissal.  It merely says that the sanction can be “mitigated” if the attorney’s speedy trial rights
were violated.”

Deters was cited by the Bar for not immediately admitting his guilt to all l9 charges. (They consider it an ethics violation to defend yourself?)
But the newest action by the Bar Counsel’s office tops everything.  After the Board of Governors slapped the Bar Counsel’s hand by acquitting Deters of l5
charges,  the Bar Counsel came up with a new charge against Deters.  The timing alone of this post acquittal charge is shocking, but the claim made in the
charge is clearly over the top.   The new charge alleges that Deters violated the Code of Professional Responsibility, by challenging the denial of his motion to recuse the Trial Commissioner who
initially heard the claims against him, he filed a lawsuit against the Bar Association alleging a violation of his constitutional rights to a fair hearing.
This Federal lawsuit was based on allegations by Deters, that the Trial Commissioner disclosed in the middle of the hearing, that his law partner had accepted a legal fee of $25,000 from the same client
who had filed the fee complaint against Deters.
The Trial Commissioner’s law partner had taken over the same case that Deters had previously handled for the same client.

In the Federal lawsuit against the KBA, the Federal Judge, Danny Reeves, granted a summary judgment motion of the KBA, and ruled that the Federal Courts do not have jurisdiction over unconstitutional State
Bar rules and procedures.  that ruling is on appeal to the 6th. Circuit.
Deters motion to the Kentucky Chief Justice to consider his motion to recuse the Trial Commissioner for a conflict of interest was ignored and never ruled on.  The
pleadings were returned to Deters with the message his motion was rejected.

(A similar lawsuit is pending in the 6th. Circuit Court of Appeals and reportedly the ACLU , as the Plaintiff’s attorney, cites some 60 rulings of Federal Courts
where they have taken jurisdiction over constitutional rights violation claims against State Bar Associations.)

The new ethics complaint against Deters relates to a claim by the KBA Bar Counsel to the effect that Deters had no right to seek a constitutional ruling from the Federal Court and that it was unethical to sue
the KBA.

In the cost bill submitted by the Bar Counsel Linda Gosnell, she claimed the cost of obtaining a Summary Judgment dismissal was over $18,000, and this was added to Deters cost bill.

The Board of Governors is ultimately responsible for the Bar Counsel’s office having to defend two Federal lawsuits currently pending in the 6th. Circuit Court of Appeals.  If a simple summary judgment motion required the KBA to expend $18,000, what will be the cost of defending two appeals to the 6th. Circuit.  Perhaps an adult supervisor somewhere would say why is the KBA defending two federal lawsuits, and is it worth spending $50,000 or $100,000 of Bar members dues, without anyone on the Board of Governors seeing if the defense offered by the Bar Counsel is worthy of such an expenditure.

One may argue that any costs or attorney fees awarded in a Federal lawsuit should be awarded by the judge in the court the claim was brought and not by the Kentucky Bar Association.

Typically in a summary judgment situation. the defendant would file an answer, do a little legal research, file a motion for summary judgment and attend one hearing.
The subsequent claim of a legal fee of $18,000 raises the eyebrows!!!   Apparently a claim against an attorney for charging an “exorbitant fee” applies to the attorney but does not
apply to the Bar Counsel.

Deters in a report to LawReader asserts that the Bar Counsel offered no breakdown of the $52,900 cost bill (other than the $18,000 relating to the federal lawsuit), and offered no supporting documentation to
justify the cost bill.

We once heard Chief Justice Robert Stephens say that the structure of the l976 Judicial Amendment to the Ky. Constitution, assured everyone of “the right to at least one appeal”.  But in a number of cases the right of the Bar
Counsel to impose large cost bills prior to an appeal certainly appears to deny the defendant attorney the right to any appeal.

It is reported that Judge Jay Bamberger was billed $18,000 in costs.  He filed no appeal.  It is reported that David Helmers was billed some $40,000 in costs and apparently did not submit the 100%
surety and therefore had no appeal. These numbers seem to be a very high tax on the right to appeal.
The Bar Counsel has been granted absolute immunity from civil actions. Bar complaints are defined by Supreme Court Rules as a civil action. We have found no rule however that says that ethics charges cannot
be filed against the Bar Counsel…but who would be foolish enough to do so?
Only two bodies can do anything about the conduct of the Bar Counsel.  The Board of Governors can assume and enforce their administrative control of the Bar Counsel’s
office, but evidence of them having exercised their administrative powers has no far been non-existent.  Then of course, the Kentucky Supreme Court could with the stroke of a pen correct all
of the structural errors in the current KBA discipline rules.

Both the Board of Governors and the Supreme Court should be aware of the growing number of attorneys who are outraged at the lack of due process.  LawReader has heard many
complaints from lawyers about the Bar Counsel’s office, and perhaps someday these reports will be directed towards someone who can look into these issues.

The theme we hear from attorneys is that they believe they are entitled to fair play and due process of law, and they don’t feel they are receiving their due.

Selling Pieces of Law Firms to Investors

Saturday, October 29th, 2011

NY TIMES  October 28, 2011

By JOHN ELIGON

Imagine an afternoon trip to a Wal-Mart: You pick up socks, a flat-screen television and a microwave meal. After checking out, you stop in the photo studio at the front of the store for a family portrait, and then shift one booth over to a lawyer, who drafts your will or real estate contract.

The concept may not be that far-fetched.

England began this month to allow groups other than lawyers to own and control law practices, and some of the country’s major retailers have begun offering legal services in their stores and online. Other countries, most notably Australia, already allow someone other than a lawyer to own a practice.

Now, with calls increasing for a similar model in the United States, the country’s chief legal ethics authority intends to propose a plan to permit law practices to have limited outside ownership.

Such a move could upend the industry’s stiff adherence to the partnership system in favor of full-fledged corporations that have access to the capital markets.

Some legal experts envision a marketplace that would become more customer-friendly, affordable and accessible for the average consumer: one-stop shops on street corners that bundle, for instance, legal, banking, accounting and real estate services; drive-through-style law firms with numerous branches across the country, similar to accounting shops like H&R Block; more complex legal services offered online; and, of course, retail stores with a legal unit.

Although Australia’s legal landscape has not shifted in this direction since it began allowing outside ownership of law firms in 2007, analysts are eagerly watching to see what will become of the legal market in England, which has more global prominence.

Regulators hope giving law practices access to private capital will allow them to invest in technology and other resources that could help them operate more efficiently and at cheaper rates.

“That surely expands the pool of individuals and organizations that have access to effective legal services,” said Mark Ross, the vice president of legal services at Integreon, an international legal process outsourcing company.

An ethics commission of the American Bar Association is expected to circulate by early November a draft proposal recommending that ethics rules be amended to allow other professional service providers — like accountants, economists and social workers — to partner with lawyers and own up to 25 percent of a law firm.

The current rules say that only lawyers may share directly in legal fees.

Individual states have the final say on whether to allow ownership by someone other than a lawyer. Washington is now the only jurisdiction in the United States that allows it. A bill to allow investments in law firms was introduced this year in North Carolina. One New York firm, Jacoby & Meyers, has sued the state’s court system to allow it to receive capital from outside investors.

Despite these efforts, many lawyers and legal analysts remain skeptical about the need for outside investors and are concerned about the ethical implications.

“The idea is that nonlawyers might not have the same codes of ethics,” said Andrew M. Perlman, a legal ethics professor at Suffolk University Law School and the chief reporter for the American Bar Association’s Ethics 20/20 commission, which is preparing the draft recommendation. “They might not be bound by the same sense of professional responsibility and might push the lawyers to do things that they should not be doing to chase the dollar rather than abiding by the rules of professional conduct.”

One ethical concern is about lawyer-client privilege, as shareholders would have an interest in knowing who the firm’s clients were and the specifics of their cases. Another is that lawyers might feel pressured, for example, to settle a lawsuit to make shareholders happy, no matter what the best interest of their client was.

But such thinking derives from the naïve assumption that the lawyers “who currently own law firms are not motivated by profit,” said Ken Fowlie, the executive director of Slater & Gordon, an Australian law firm that was the first in the world to become a publicly traded company.

If anything, going public has increased transparency, Mr. Fowlie said, and has separated the ownership from the lawyers, giving the lawyers more distance from business side pressures than in traditional partnerships.

Since listing on the Australian Stock Exchange in May 2007, Slater & Gordon’s revenue has more than tripled. It has added 30 offices for a total of 50 and has more than doubled its roster of employees to about 1,000.

Despite Slater & Gordon’s success, the largest Australian firms have not followed suit. Legal analysts attribute that to various factors, including volatile market conditions, the country’s tax laws and the fact that Australia is not an international legal and financial hub.

Yet it may also hint at a broader reluctance among major firms in England and the United States to allow private investors.

Top-tier firms already make a lot of money and could easily borrow from banks in the rare instance they might need capital, lawyers said.

“It’s a nonstarter for us,” said Chris Perrin, the general counsel for Clifford Chance, one of Britain’s largest firms. “Some of the firms that will do this in England who are the smaller to midsized firms may get an advantage because they may not be able to so readily borrow money from banks and they may be able to expand more quickly to provide a better service to their clients.”

Big firms may have cultural obstacles as well: lawyers are trained to avoid risk, and partners are unwilling to cede control or equity to outsiders.

Ralph Baxter, the chairman and chief executive of the law firm Orrick, said allowing law firms to accept outside capital would give them market value and could make them attractive to investors. Even if investors do not establish direct profit-sharing agreements, they can provide capital that law firms could use to invest in technology, streamline processes and expand, becoming more profitable businesses, Mr. Baxter said.

“The investors can sell their investment because it’s worth more,” he said.

Legal experts expect outside investment to be more eagerly sought by small law firms and those providing basic legal services, especially online.

The English law allowing nonlawyer ownership, the Legal Services Act, took effect on Oct. 6, but regulators are not expected to begin offering licenses for outside ownership until early next year. The act has been called the “Tesco law” after the major retail chain based in Britain.

Although Tesco has no plans to sell legal services in stores, other English retailers and professional service providers like WHSmith, the Co-Operative Group and Halifax have moved in that direction.

Consumers may gravitate toward a particular retailer for legal services because “they know what the brand stands for and what they’re going to get,” said Stephen Mayson, the director of the Legal Services Institute in England.

Bradford Hildebrandt, the president of Hildebrandt Consulting, a legal consulting firm, said he did not believe there was much unmet demand.

“The average American consumer doesn’t need lawyers all that often,” Mr. Hildebrandt said. If someone needs simple services like drafting a will or defending a small-claims lawsuit, “there’s plenty of law firms available for that market and they’re priced pretty reasonably,” he said.

Some lawyers and analysts believe that the tough economy and consumer demand for lower prices will spur the industry, even top-tier firms, to find ways to use private investment to become more competitive. And if English firms gain even a perceived advantage, experts said, calls to change the rules in the United States could increase.

Irwin Mitchell, one of Britain’s top 25 law firms, has said it plans to seek outside investment once the law allows it.

“The more sophisticated firms, the ones that will thrive in the future, they have become very much aware of what this new situation presents,” said Silvia Hodges, who teaches law firm management at Fordham Law School. “To say or to assume that the status quo is going to prevail and that we’re not going to have any changes, that doesn’t make any sense.”

Great quotes submitted by retired Law Professor Martin Huelsmann

Saturday, October 29th, 2011

Paraprosdokians  “Figure of speech in which the latter part of a sentence or phrase is surprising or unexpected; frequently used in a humorous situation” (i.e. “Where there’s a will, I want to be in it,” is a type of paraprosdokian).

  1. Do not argue with an idiot. He will drag you down to his level and beat you with experience.

 2. The last thing I want to do is hurt you. But it’s still on my list.

  3. Light travels faster than sound. This is why some people appear bright until you hear them speak.

  4. If I agreed with you, we’d both be wrong.

  5. We never really grow up, we only learn how to act in public.

  6. War does not determine who is right – only who is left.

  7. Knowledge is knowing a tomato is a fruit. Wisdom is not putting it in a fruit salad.

  8. Evening news is where they begin with ‘Good Evening,’ and then proceed to tell you why it isn’t.

  9. To steal ideas from one person is plagiarism. To steal from many is research.

  10. A bus station is where a bus stops. A train station is where a train stops. On my desk, I have a work station.

  11. I didn’t say it was your fault, I said I was blaming you.

  12. Women will never be equal to men until they can walk down the street with a bald head and a beer gut, and still think they are sexy.

  13. Behind every successful man is his woman. Behind the fall of a successful man is usually another woman.

  14. A clear conscience is the sign of a fuzzy memory.

  15. I asked God for a new car, but I know God doesn’t work that way. So I stole a car, and asked for forgiveness.

16. You do not need a parachute to skydive. You only need a parachute to skydive twice.

  17. Money can’t buy happiness, but it sure makes misery easier to live with.

  18. There’s a fine line between cuddling and holding someone down so they can’t get away.

  19. I used to be indecisive. Now I’m not so sure.

  20. You’re never too old to learn something stupid.

  21. To be sure of hitting the target, shoot first and call whatever you hit, a target.

  22. Nostalgia isn’t what it used to be.

  23. Change is inevitable, except from a vending machine.

  24. Going to church doesn’t make you a Christian any more than standing in a garage makes you a car.

  25. A diplomat is someone who tells you to go to hell in such a way that you look forward to the trip.

  26. Hospitality is making your guests feel at home even when you wish they were.

  27. I always take life with a grain of salt. Plus a slice of lemon, and a shot of tequila.

  28. When tempted to fight fire with fire, remember that the Fire Department usually uses water .

Court of Appeals Upholds Statute Requiring Reliance on God to Prevent Terrorism. Dissent by Judge Ann Shake vigorously attacks the majority’s decision….Challenged statute imposes a criminal penalty for anyone violating this recognition of God.

Saturday, October 29th, 2011

 

On Friday Oct. 28, 2011, the Ct. of Appeals overruled Franklin Circuit Judge Thomas Wingate, and upheld a statute requiring the public to rely on God…and required the posting of a a plaque prominently displayed at the state’s Emergency Operations Center which would publicize the required reliance on God.

 Judge Shake noted in her dissent:

 ” More troublesome though, is that the statutes are located within a chapter of the Kentucky Revised Statutes which further states “any person violating any provision of this chapter or any administrative regulation or order promulgated pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.” KRS 39A.990″

 LawReader Synopsis:

 RENDERED: OCTOBER 28, 2011; 10:00 A.M.  By the Ky. Ct. of Appeals-

  TO BE PUBLISHED

 NO. 2009-CA-001650-MR

 KENTUCKY OFFICE OF HOMELAND SECURITY;

AND THOMAS PRESTON, IN HIS OFFICIAL CAPACITY

AS THE DIRECTOR OF THE KENTUCKY OFFICE

OF HOMELAND SECURITY APPELLANTS

APPEAL FROM FRANKLIN CIRCUIT COURT

v. HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 08-CI-01950

MICHAEL G. CHRISTERSON; JAMES F. COFFMAN;

LUCINDA HEDDEN COFFMAN; JAN EWING;

EMMETT F. FIELDS; ALEX GRIGG; EDWIN HENSLEY;

HELEN KAGIN; GARY MARYMAN; DAVID RYAN;

AND JAMES K. WILLMOT APPELLEES

                                          BEFORE: VANMETER AND WINE, JUDGES; SHAKE,1 SENIOR JUDGE.

VANMETER, JUDGE: The Kentucky Office of Homeland Security (“KOHS”)

and Thomas Preston, as the director of the KOHS (hereinafter collectively referred to as “KOHS”), appeal from the order of the Franklin Circuit Court that granted summary judgment in favor of Appellees2 and American Atheists, Inc. (“American Atheists”) on the basis that KRS3 39A.285 and KRS 39G.010 violate the First and Fourteenth Amendments to the United States Constitution and Section 5 of the Kentucky Constitution.

 … The text of KRS 39A.285, styled Legislative Findings, provides:

 The General Assembly hereby finds that:

(1) No government by itself can guarantee perfect

security from acts of war or terrorism.

(2) The security and well-being of the public

depend not just on government, but rest in large

measure upon individual citizens of the

Commonwealth and their level of understanding,

preparation, and vigilance.

(3) The safety and security of the Commonwealth

cannot be achieved apart from reliance upon

Almighty God as set forth in the public speeches

and proclamations of American Presidents,

including Abraham Lincoln’s historic March 30,

1863, Presidential Proclamation urging Americans

to pray and fast during one of the most dangerous

hours in American history, and the text of

President John F. Kennedy’s November 22, 1963,

national security speech which concluded: “For as

was written long ago: ‘Except the Lord keep the

city, the watchman waketh but in vain.’”

 KRS 39G.010(2)(a) requires the executive director of the KOHS to:

Publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth by including the provisions of KRS 39A.285(3) in its agency training and educational materials. The executive director shall also be responsible for prominently displaying a permanentplaque at the entrance to the state’s Emergency Operations Center stating the text of KRS 39A.285(3)[.]

 .. The United States Supreme Court has a long history of applying the

Establishment Clause to state legislation, drawing a line with reference to three activities the Establishment Clause seeks to prohibit: “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Lemon v. Kurtzman, 403 U.S. 602, 612,

 … the Lemon test, establishes the following criteria to determine

whether a law establishes a religion or religious faith: (1) whether the challenged law has a secular purpose; (2) whether the principal or primary effect of the law is to advance or inhibit religion; and (3) whether it creates an excessive entanglement of government with religion. 403 U.S. at 612-13, 91 S. Ct. at 2111. The second method, recognized in Van Orden v. Perry, 545 U.S. 677, 686, 125 S. Ct. 2854, 2861, 162 L. Ed. 2d 607 (2005), looks to the relevant religious and historical significance, as well as the nature of the entity affected by the legislation. In Van Orden, the Court noted that “[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the

Establishment Clause.” Id. at 690.

 In the case at bar, the trial court opined that KRS 39G.010 was enacted for a predominantly religious purpose and conveyed a message of mandatory religious belief, thereby violating the Establishment Clause under the Lemon test. Further, the trial court concluded that KRS 39A.285 “places an affirmative duty to rely on Almighty God for the protection of the Commonwealth[,]” and thus “created an official government position on God[,]” which is incompatible with any historical significance possibly found in the legislation.

 … history includes countless political leaders who thanked God and “prayed that the nation might continue to enjoy His favor.” Id. at 299. The Court held the motto to be “merely a broadly worded expression of a religious/philosophical sentiment[,]” stating it “involves no coercion. It does not purport to compel belief or acquiescence. It does not

command participation in any form of religious exercise. It does not assert a preference for one religious denomination[.]” Id. Ultimately, the Court found the motto simply paid “lip service to the puissance  (power) of God,” rather than seeking to or \

having the effect of advancing religion within the state. Id. at 308

… the Kentucky legislature made legislative findings in

KRS 39A.285(3), which references the Commonwealth being protected by

an “Almighty God” and requires such findings to be publicized in KOHS

training materials and posted at the State Emergency Center. While KRS

39G.010(2)(a) requires the executive director of the Kentucky Office of

Homeland Security to publicize these findings, no requirement exists that

the director agree with or believe in them or that citizens read the posting.

… The Kentucky legislature has not attempted to compel belief or participation in any form of religious exercise, nor does it seek to prefer one belief over another. A simple reference to a generic “God” acknowledges religion in a general way. Elk Grove Unified School District v. Newdow, 542 U.S. 1, 42, 124 S. Ct. 2301, 2326, 159 L. Ed. 2d 98 (2004).

 … Such broad declarations have been viewed as “simply a tolerable

acknowledgment of beliefs widely held among the people of this country.” Marsh

v. Chambers, 463 U.S. 783, 792, 1

 We disagree with the trial court’s assertion that the legislation seeks to place an affirmative duty upon the Commonwealth’s citizenry to rely on “Almighty God” for protection of the Commonwealth. The legislation merely pays lip service to a commonly held belief in the puissance of God.

 … we have found, no Kentucky case that has adopted the reasoning that this section prohibits a statutory reference to God of the sort embodied in the statutes in question.

 … When viewed against this historical background, the statutory references to God, like the other constitutional references to God, do not violate the prohibition of Section 5, or impinge on the freedom of the Appellees to believe or disbelieve as they deem fit

 … WINE, JUDGE, CONCURS.

 SHAKE, SENIOR JUDGE, CONCURS IN PART AND DISSENTS IN

PART AND FILES SEPARATE OPINION.

adopt the sound reasoning of the trial court. The trial court analyzed KRS 39G.010 under the Lemon test and the statute was found to have the

impermissible effect of endorsing religion because it was enacted for a predominantly religious purpose and conveyed a message of mandatory religious belief. See Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).

 The trial court concluded that unlike an ephemeral, general reference to Almighty God nestled in the middle of a statute, KRS 39A.285 “places an affirmative duty to rely on Almighty God for the protection of the Commonwealth.” The court opined that the Kentucky General Assembly had effectively “created an official government position on God” beyond a general acknowledgement that people have historically looked to God for protection.

 Respectfully, I disagree with the majority that this case is analogous to the Sixth Circuit case of ACLU of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289 (6th Cir. 2001) (en banc).

 Furthermore, KRS 39G.010(2)(a) places a duty upon the executive director to publicize that assertion while stressing to the public that dependence upon Almighty God is vital, or necessary, in assuring the safety of the Commonwealth.

 This declaration is then given great publicity and emphasized by placement on a plaque prominently displayed at the state’s Emergency Operations Center  

… More troublesome though, is that the statutes are located within a chapter of the Kentucky Revised Statutes which further states “any person violating any provision of this chapter or any administrative regulation or order promulgated pursuant to this chapter for which another penalty is not specified shall be guilty of a Class A misdemeanor.” KRS 39A.990 (emphasis added). Therefore, failure to abide by the challenged statutes is a crime punishable by up to twelve months in the county jail.11

 … A legislative mandate squarely placing our Commonwealth’s security with an Almighty God, and legally requiring such a message to be publicized, is a direct affront to that freedom.

 … the challenged statutes fail to pass constitutional muster even under the reasonable observer test.

 … Religious establishment can take many forms. In Neal and Fannin, it took the form of educational funding; in this case it has taken the form of a state statute.

 The Constitutional mandate of “no preference” should be applied to all religious inclinations, regardless of the container in which they are delivered

 For the foregoing reasons, I would affirm the August 26, 2009, order

of the Franklin Circuit Court in its entirety.

BRIEFS/ORAL ARGUMENT FOR

APPELLANTS/

CROSS-APPELLEES:

Jack Conway

Attorney General of Kentucky

Tad Thomas

Assistant Deputy Attorney General

Frankfort, Kentucky

AMICUS CURIAE BRIEF FOR

THIRTY-FIVE KENTUCKY STATE

SENATORS:

Ronald D. Ray

Crestwood, Kentucky

AMICUS CURIAE BRIEF FOR

NINETY-SIX KENTUCKY STATE

REPRESENTATIVES:

Jack L. Richardson

Louisville, Kentucky

BRIEF/ORAL ARGUMENT FOR

APPELLEES/CROSS-APPELLANT:

Edwin F. Kagin

Union, Kentucky

AMICUS CURIAE BRIEF FOR THE

AMERICAN CIVIL LIBERTIES

UNION:

William E. Sharp

Louisville, Kentucky

-

THE KENTUCKY SUPREME COURT ISSUES ORDER PERMANENTLY DISBARRING BOONE CIRCUIT JUDGE JOSEPH BAMBERGER – IGNORES JUDICIAL IMMUNITY DOCTRINE

Thursday, October 27th, 2011

 The Supreme Court adopted the findings of the Trial Commissioner and found that Judge Bamberger had violated two ethics rules.   He was acquitted of a charge relating to Mark Modlin, a trial consultant.

 The court had previously rejected a tendered Amicus Curie brief  raising the issue of Judicial Immunity.   This decision, by not mentioning  the  Judicial Immunity  Doctrine sets a precedent for the KBA and Bar Counsel to question any ruling made by a judge in the future.

 Full text of the Bamberger decision  released on Thursday, Oct. 27, 2011

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

 2011-SC-000378-KB

KENTUCKY BAR ASSOCIATION MOVANT

V. IN SUPREME COURT

JOSEPH F. BAMBERGER RESPONDENT

OPINION AND ORDER

 

The Board of Governors of the Kentucky Bar Association (KBA) has

recommended to this Court that Respondent, Joseph F. Bamberger, KBA

Member No. 03045, be permanently disbarred as a result of his violations of

the Rules of Professional Conduct. Respondent was admitted to the practice of

law in Kentucky in 1970. His last known roster address is 1598 Shady Cove,

Florence, Kentucky, 41042.

The Inquiry Commission charged Respondent with three counts of

misconduct. Following an evidentiary hearing, the trial commissioner issued a

report finding Respondent guilty of two of the three charges and recommending

that he be permanently disbarred. Pursuant to SCR 3.370(6), 1 the Board of

1 SCR 3.370(6) provides in pertinent part:

Governors unanimously adopted the Trial Commissioner’s findings and

recommendation. The Board now recommends that this Court find

Respondent guilty and permanently disbar him.

After reviewing the record, we adopt the Board’s recommendation.

Respondent was a circuit court judge in Boone and Gallatin counties

from 1992 through his retirement in January 2004. 2 The charges against him

stem from his actions as presiding judge in the case of Darla Guard, et al., or

Jonetta Moore, et al. v. A.H. Robins Company, et al., (hereinafter the Fen-Phen

case).

The Fen-Phen case was a class action lawsuit filed in 1998 in Boone

Circuit Court against American Home Products (AHP), the manufacturer of the

prescription diet drug Fen-Phen. The plaintiffs, who alleged that they were

injured through their use of Fen-Phen, were represented by attorneys William

J. Gallion, Shirley A. Cunningham, Jr., Melbourne Mills, Jr., Richard D.

Lawrence, Stanley Chesley, and David L. Helmers. At the outset of the

representation, the attorneys and plaintiffs entered into contingency fee

The Board shall decide, by a roll call vote, whether the decision of the

Trial Commissioner as to the finding of a violation and degree of

discipline imposed is supported by substantial evidence or is clearly

erroneous as a matter of law. The Board, in its discretion, may conduct a

review de novo of the evidence presented to the Trial Commissioner. Both

the findings and any disciplinary action must be agreed upon by eleven

(11) or three-fourths (3/4) of the members of the Board present and

voting on the proceedings, whichever is less.

2 After retiring, the Respondent served as a Senior Status Special Judge until he

resigned on February 24, 2006.

2

contracts, which provided that the attorneys would receive fees equal to thirty

or thirty-three percent of any recovery.

In May 2001, the plaintiffs’ attorneys and AHP’s counsel settled the Fen-

Phen case for a total lump-sum payment of $200,000,000.00. Under the terms

of the settlement agreement, the plaintiffs’ attorneys were responsible for

dividing the settlement funds among the 440 plaintiffs and deducting their

attorneys’ fees. Despite the terms of their contingency fee contracts, the

plaintiffs’ attorneys and their agents retained $126,255,422.87, more than

sixty-three percent of the settlement funds. The plaintiffs’ attorneys also

retained an additional $20,000,000.00 in “excess funds.” They distributed only

$74,194,577.13 to the plaintiffs, who were never informed of the total amount

of the settlement or the amount of fees retained by their attorneys.

Following the settlement of the Fen-Phen case, the KBA began a

disciplinary investigation into the conduct of the plaintiffs’ attorneys. 3 In an

effort to establish that their conduct was proper, the plaintiffs’ attorneys

secretly sought court approval of their fees from Respondent. On the evening

of February 6, 2002, Respondent held an off-the-record meeting in the jury

room at the Boone County Courthouse with plaintiffs’ attorneys Mills, Gallion,

and Chesley, and their trial consultant, Mark Modlin. AHP’s counsel was not

present or advised of this meeting.

3 Several of the plaintiffs’ attorneys in the Fen-Phen case have been

permanently disbarred based on their dishonest and fraudulent actions. See

Cunningham v. Kentucky Bar Association, 266 S.W.3d 808 (Ky. 2008); Gallion v.

Kentucky Bar Association, 266 S.W.3d 802 (Ky. 2008); Kentucky Bar. Association v.

Mills, 318 S.W.3d 89 (Ky. 2010).

3

As a result of his ex parte meeting with the plaintiffs’ attorneys,

Respondent signed an order finding that the attorneys’ fees and expenses paid

in the Fen-Phen case were “reasonable and necessary.” Respondent admits

that this order, which did not set forth the actual amount of attorneys’ fees

awarded, contains numerous false statements. The order incorrectly indicates,

among other things, that Respondent was aware of the terms of the settlement

agreement, had reviewed an accounting of the funds allocated to the plaintiffs

and their attorneys, and had determined that the funds had been handled

properly and in accordance with the agreement. However, at the time he

signed the order, Respondent acknowledges that he had not read the

settlement agreement or reviewed any accounting. 4 His decision to approve the

attorneys’ fees was based solely on his ex parte discussion with the plaintiffs’

attorneys and Modlin. 5

Respondent signed the order approving the plaintiffs’ attorneys’ fees in

February 2002; however, the order was not entered into the court record for

nearly four months. Once the order was entered, Respondent instructed the

Circuit Court Clerk to provide copies of all future orders solely to the plaintiffs’

attorneys. The Clerk was further ordered to seal all future orders entered by

4 Respondent subsequently signed three additional orders approving the

attorneys’ fees as reasonable and falsely indicating that he had reviewed an

accounting of the settlement funds.

5 Modlin, who had been a close personal friend of Respondent since 1985,

received a $2,000,000.00 fee from the plaintiffs’ attorneys for his work in the Fen-Phen

case. He acknowledged that the fee was more than twice that which he had received

in any other case.

4

the court in the Fen-Phen case. AHP’s counsel was not provided with copies of

any, of these orders.

After sealing the court record, Respondent entered orders authorizing the

plaintiffs’ attorneys to establish a charitable entity with the $20,000,000.00

they had retained as “excess funds.” From June 2002 through December

2003, Respondent entered a series of orders which led to the establishment of a

non-profit corporation, the Kentucky Fund for Healthy Living (KFHL). Despite

statements in the orders to the contrary, the plaintiff class never consented to

the creation of KFHL with the settlement funds.

In his orders regarding KFHL, Respondent expressly retained the court’s

authority to approve any changes in the corporation’s directors. In January

2003, Respondent appointed Modlin, Cunningham, Gallion, and Mills as the

initial directors of KFHL. As a result of this appointment, Modlin received

$7,500 per month and the plaintiffs’ attorneys received $5,350.00 per month in

director’s fees from KFHL.

Immediately prior to his retirement from the bench, Respondent entered

an order relinquishing the court’s continuing authority over KFHL. The order

implies that KFHL had fulfilled its charitable purpose and that oversight was

no longer necessary. However, in reality, KFHL had never made any

distributions for charitable purposes. Following his retirement and termination

of judicial oversight, Respondent accepted the plaintiffs’ attorneys’ invitation to

5

become a paid director of KFHL. Respondent received $5,350.00 per month,

and a total of sum of $48,150.00 from KFHL. 6

Based on the acts detailed above, the Board of Governors found that

Respondent violated two of our Rules of Professional Conduct.? The charges

against Respondent are as follows:

(1) Respondent violated SCR 3.130-8.3(a), which prohibits a lawyer from

violating the Rules of Professional Conduct or knowingly assisting

another attorney in doing so. The Board of Governors found that

Respondent violated this Rule by knowingly assisting the plaintiffs’

attorneys in defrauding their clients. The Board concluded that

Respondent’s conduct – entering of numerous orders containing false

statements of fact, conducting secret proceedings, sealing the court

record, failing to review any documentation of the allocation of settlement

funds, and personally benefitting from the fraud – supported a finding of

guilt on this charge.

 

(2) Respondent violated SCR 3.130-8.3(c), which prohibits a lawyer from

engaging in conduct involving dishonesty, fraud, deceit, or

. 6 Respondent returned his director’s fees after the Judicial Conduct

Commission (JCC) initiated an investigation into his conduct.

The JCC ultimately commenced disciplinary proceedings against Respondent, resulting in a public

reprimand, which was the most severe sanction the JCC could impose because

Respondent resigned from his position as Senior Status Special Judge.

7

The third charge brought against Respondent was that he violated SCR 3.130-

5.5(b) by assisting Modlin, a non-lawyer, in activity that constitutes the unauthorized

practice of law. Following the hearing before the Trial Commissioner, the KBA

admitted that there was not sufficient evidence to find that Respondent violated this

rule. The Trial Commissioner agreed and found that Respondent had not violated SCR

3.130-5.5(b). The Board of Governors adopted the Trial Commissioner’s findings.

6

misrepresentation. The Board of Governors found that Respondent

violated this Rule by entering numerous orders containing false

statements of fact. The Board determined that Respondent’s admission

that he knowingly entered orders containing false statements of fact

under suspicious circumstances supported a finding of guilt on this

charge.

Upon a review of the record, we agree with the Board of Governors’

findings and adopt their recommendation to permanently disbar Respondent in

light of the highly egregious nature of his ethical violations. Respondent’s

conduct shocks the Court’s conscience.

ACCORDINGLY, IT IS HEREBY ORDERED that:

(1) Respondent, Joseph F. Bamberger, is found guilty of violating SCR

3.130-8.3(a) and SCR 3.130-8.3(c);

(2) For these violations, Bamberger is hereby permanently disbarred from

the Kentucky Bar Association. Bamberger may never apply for

reinstatement to the Bar under the current rules;

(3) Pursuant to SCR 3.390, Bamberger shall, within ten days from the entry

of this Opinion and Order, notify all clients with Kentucky cases in

writing of his inability to represent them, and notify all courts in which

he has matters pending of his disbarment from the practice of law, and

furnish copies of said letters of notice to the Director of the KBA.

Furthermore, to the extent possible and necessary, Bamberger shall

immediately cancel and cease any advertising activities in which he is

engaged; and

(4) In accordance with SCR 3.450, Bamberger is directed to pay all costs

associated with these disciplinary proceedings in the amount of

$18,700.84, for which execution may issue from this Court upon finality

of this Order.

Minton, C.J.; Abramson, Cunningham, Noble, Scott, and Venters, JJ.,

concur. Schroder, J., not sitting.

ENTERED: Octobere,17 2011.8

When A “Final” Judgment Isn’t Final by Hon. Dave Kramer

Thursday, October 27th, 2011

When A “Final” Judgment Isn’t Final

By David Kramer | dkramer@dbllaw.com

A recent decision by the Kentucky Court of Appeals (won by my DBL colleagues Emily Hanna and Betsy Weber) highlights an important consideration for any Kentucky attorney contemplating the appeal of a trial court’s civil judgment. The case, Morgan v. Appalachian Regional Healthcare, Inc. (2010-CA-197) (10/14/11), involved a civil action by a rural hospital to enforce contractual repayment of physician recruitment incentives. 

 The trial court granted summary judgment in favor of the plaintiff hospital on liability and included the finality recitations provided for in CR 54.02(1) (“There being no just cause for delay, this is a final and appealable order.”). However, the  amount to be awarded to the plaintiff, including damages and attorneys’ fees, was not included in the original judgment. Rather, the trial court issued another judgment 13 days later that included the amounts of damages and attorneys’ fees awarded against the defendant.  

 The plaintiff appealed, arguing inter alia that the trial court had lost jurisdiction 10 days after entry of the original judgment. The Court of Appeals noted that a judgment that does not resolve all outstanding issues is not final, notwithstanding the inclusion of a finality endorsement in the judgment. Thus, the trial court retained not only jurisdiction but also “unlimited power to amend and alter its own judgments” before they become final. The opinion did not cite, but could have, 7 Ky. Prac. CR 54.02 at p. 347-48 (“A judgment on liability reserving for later determination the issue of damages is not final and appealable even though it includes the Rule 54.02 recitations.”) 

NOTE:  The decision in Morgan v. Appalachian Regional Healthcare is not yet final, but was designated for publication. Decisions that are not final should not be cited as authority.

 David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

 Subscribe to the DBL Civil Litigation blog.

SHOULD BAR ASSOCIATIONS BE DEREGULATED?

Wednesday, October 26th, 2011

Yesterday’s New York Times features an op-ed by Clifford Winston, an economist and senior fellow at the Brookings Institution, and co-author of First Thing We Do, Let’s Deregulate All the Lawyers. Winston focuses on reducing barriers to entry for those who wish to provide legal services, including the elimination of legal licensing and allowing non-lawyers to invest in law firms. These changes, Winston argues, would promote innovation and lower the price of legal services. We commented on these proposals in an earlier post.

 Winston is absolutely right: Licensing laws must be adjusted to allow greater competition in the provision of legal services across the spectrum of legal needs and ability to pay. Responsive Law has commented at length to the American Bar Association about the need to promote innovation by allowing outside investment in law firms. Consumers are not well-served by the current one-size-fits-all system that assumes that every legal need must be met by someone who has attended law school, passed the bar exam, and practices law in a solo practice or partnership.– Responsive Law Blog

Federal Judge Susan Dlott, Stan Chesley’s wife, has withdrawn her KBA membership.

Wednesday, October 26th, 2011

The KBA lawyers directory indicates that she has withdrawn pursuant to

- SCR 3.480       (see scr below)

LawReader has heard several comments from Ohio lawyers to the effect that they    are cancelling their Ky. Bar memberships  due to the increasingly over the top prosecution of attorneys in Kentucky.

Ohio lawyers say the Ohio Bar Association provides due process to attorneys charged with discipline complaints, and is less likely to seek severe sanctions for minor offenses.

See:  SCR 3.480 Withdrawal from the association

(1) Any member who desires to withdraw from membership and is not under investigation pursuant to Rule 3.160(2), and does not have a complaint or charge pending against him/her in any jurisdiction, shall file a written motion to that effect with the Court and serve a copy on the Registrar and the Inquiry Commission. The motion shall be docketed by the Clerk. The Registrar shall, after consultation with the Inquiry Commission, within ten (10) days after the filing of the motion, certify in writing to the Court whether the movant is an active member in good standing of the Association and whether movant is under a disciplinary investigation by the Inquiry Commission or has a complaint or charge pending against him/her in this or any jurisdiction. Said motion may be granted if movant is an active member in good standing and has no pending disciplinary investigation, complaints, or charges.

(2) The Court may consider negotiated sanctions of disciplinary investigations, complaints or charges if the parties agree. Any member who is under investigation pursuant to SCR 3.160(2) or who has a complaint or charge pending in this jurisdiction, and who desires to terminate such investigation or disciplinary proceedings at any stage of it may request Bar Counsel to consider a negotiated sanction. If the member and Bar Counsel agree upon the specifics of the facts, the rules violated, and the appropriate sanction, the member shall file a motion with the Court which states such agreement, and serve a copy upon Bar Counsel, who shall, within ten (10) days of the Clerk’s notice that the motion has been docketed, respond to its merits and confirm its agreement. The Disciplinary Clerk shall submit to the Court within the ten (10) day period the active disciplinary files to which the motion applies. The Court may approve the sanction agreed to by the parties, or may remand the case for hearing or other proceedings specified in the order of remand.

(3) Any member who has been engaged in unethical or unprofessional conduct and desires to withdraw his membership under terms of permanent disbarment shall file a verified motion with the Court stating as follows:

(a) He/she has violated the Rules of Professional Conduct, or his/her conduct fails to comply with those rules, the specifics of which shall be detailed in the motion.

(b) He/she will not seek reinstatement and understands the provisions of SCR 3.510 and SCR 3.520 do not apply.

(c) He/she will not practice law in the Commonwealth of Kentucky subsequent to the permanent disbarment order. The motion shall be served on Bar Counsel and docketed by the Clerk. Bar Counsel may file a response within 10 days after the filing of the motion to resign under terms of permanent disbarment. Simultaneously with service of the motion on Bar Counsel, the member will immediately cancel all advertising for which the member has contracted and shall direct the publisher of such advertising to immediately cease publication of such advertising insofar as the medium of that advertising makes such action practicable and whether or not the member has paid for the advertising in advance. The Disciplinary Clerk shall, within ten (10) days after the filing of such a motion, submit to the Court any active disciplinary files maintained by the Inquiry Commission relating to movant. The Court will then enter an appropriate order, stating the conditions, if any, under which the motion is granted, or deny the motion and direct the completion of disciplinary proceedings under these rules.

(4) Any member suspended or disbarred by order of this Court shall:

(a) Take all steps necessary and practicable to cease all forms of advertisement of the member’s practice immediately upon entry of an order of suspension or disbarment and shall report the fact and effect of those steps to the Director in writing within twenty (20)days after the order of suspension or disbarment is entered.

(b) Pay all costs of the disciplinary investigation and proceedings in accordance with Rule 3.450, and

(c) Comply with the provisions of Rule 3.390 regarding notice to clients of suspension or disbarment.

HISTORY: Amended by Order 2009-12, eff. 1-1-2010; prior amendments eff. 2-1-00 (Order 99- 1), 10-1-98 (Order 98-1), 4-1-82 (Order 82-1), 7-2-71

ERIC DETERS ATTORNEY COMMENTS ON BOARD OF GOVERNOR’S FINDINGS IN ERIC DETERS CASE – BOARD OF GOVERNOR’S IMPOSES A $52,000 TAX ON ATTORNEY’S RIGHT TO APPEAL

Tuesday, October 25th, 2011

LawReader publishes below comments by the Hon. Larry Forgy of Lexington regarding the findings of the KBA Board of Governors in the case involving l9 ethics charges against Kenton attorney Eric Deters.

 The board acquitted Deters of 15 of the 19 charges pursued by the Bar Counsel’s Office.   We have not seen a case where the Bar Counsel was so substantially defeated by a ruling of the Board of Governors.

 One of the main issues addressed by Deters and Forgy in their arguments to the Board was the failure of the Trial Commissioner Frank Doheny, who ruled on the Deters case, to recuse himself.  Doheny disclosed at the trial before him that his law partner received a fee of $25,000 from the complainant who was allegeing that Deters charged an excessive fee of $1,500 in the same case.    Deters, following the statute, asked the Chief Justice of the Supreme Court to consider recusal of the Trial Commission after this disclosure.  The Chief Justice apparently refused to hear Deter’s motion for recusal, and the Board did not discuss this recusal issue in their findings. (???)

 Even though Deters won 15 out of l9 charges, the Bar Counsel submitted a cost bill of  $52,962.89.  Under current Sup. Ct. rules, any attorney who seeks an appeal to the Supreme Court of a finding by the Board of Governors must post a 100% surety with the KBA before his appeal will be heard by the Supreme Court.

 One issue regarding the cost bill is a claim for $18,620  relating to the Bar Counsel’s defense of a lawsuit filed by Deters alleging unconstitutional actions by the KBA in his discipline procedures.   There was no trial, just a few motions and perhaps a hearing, and the Federal Judge dismissed the action.   One would ask where is the jurisdiction of the KBA to impose a cost bill for an attorney seeking relief from a Federal Court?  One would think that costs awarded due to a filing of a federal law suit should be determined by the Federal Judge, and not unilaterally determined by the Bar Counsel’s office.

 It is clear from the ctions of the Bar Counsel, the KBA and the Board of Governors that they recognize the right to place a tax on all appeals by an attorney to the Supreme Court.

 The rules contain no procedure for the defendant attorney to challenge or examine the facts supporting the Bar Counsel’s cost bill.   Whatever the Bar Counsel claims is automatically imposed, and only if the attorney posts the 100% surety, can he argue to the Supreme Court that the cost bill is excessive or improper.

 We would respectfully submit that the Ky. Supreme Court should assure every attorney a due process right to challenge the validity of a cost bill imposed prior to the hearing of the appeal by the Supreme Court.

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

 Statement of Larry Forgy on Behalf of Eric Deters Regarding Written Findings of Fact, Conclusions of Law and Recommendion of The Board of Governors of the Kentucky Bar Association 

             The decision of the Board raises many issues.  First, by a vote of 12-1, the Board rejected Frank Doheny’s report and recommendation and did a de novo review.  This is an obvious rebuke of the man we maintained made false statements, reached biased conclusions and made a vindictive recommendation of 181 days suspension. 

             Eric was found not guilty of 15 charges of 19.  The votes of not guilty were as follows:

             One vote 11-2 not guilty

            Five votes 12-1 not guilty

            Nine votes 13-0 not guilty

             In other words, the not guilty votes weren’t even close. 

             We have no idea who drafted this decision and how it came to be in its final form.  However, it raises several questions:

             1.         How can Frank Doheny, the Trial Commissioner, rule as he did when the Board so soundly repudiated his Report and Recommendation?

             2.         How can Bar Counsel charge and prosecute Eric for these 15 charges and not be subject to any public rebuke?

             Eric had to fight these for five years, address them in the media when they became public, and defend himself and his ethics in the face of Bar Counsel’s and Frank Doheny’s vindictive and punitive prosecution.  When you claim your innocent and will defeat Bar Counsel, no one believes you.

             3.         The four charges Eric was found guilty of will be appealed to the Kentucky Supreme Court.  Based on the facts and the rules, I’m confident I can convince the Supreme Court Eric deserves complete vindication. 

             4.         If Eric won 15 of 19 counts, should he not only have to pay 4/19ths of the costs?  He has to pay this $52,962.89 to even appeal to Kentucky Supreme Court.  $52,962.89.  It’s beyond outrageous. 

             In a criminal or civil case in Kentucky, no one has to pay the costs before they appeal.  This rule of the Bar Association must be unconstitutional.  In addition, criminals receive the benefit of the standard beyond a reasonable doubt.  Ohio attorneys receive the benefit of the standard clear and convincing.  Kentucky lawyers face the standard of only a preponderance of the evidence.  Furthermore, to not require costs to be paid from a murderer who stands convicted, but require it from a lawyer who stands “acquitted” of 15 of 19 charges and none of the guiltys include crimes, theft, malpractice, moral turpitude or harm to a client before the decision is even final, is ridiculous! Again, this Board decision is still not final.  We believe no bar complaints or charges should be made public until they are final.  Eric’s case is a perfect example of why.  He received negative publicity for charges he was found not guilty of by the Board.

             5.         Our federal lawsuit focuses on Bar Counsel having immunity from any misconduct.  They have more protection than a prosecutor.  They can’t be sanctioned under Rule 11.  It is outrageous what Bar Counsel did to Eric and continues to do to Eric.  Most recently, they filed a Bar Complaint against him based upon the federal lawsuit.  They did this after the September 16 vote by the Board.  This is interesting when one considers they are a Defendant in that case, a clear conflict.  They are now so angry they lost 15 of 19, they will be even more vindictive towards Eric.  The federal lawsuit has been around a while.  Only after Bar Counsel lost 15 of 19 do they file, on their own, a Bar Complaint against Eric.  Bar Counsel knows that the second federal lawsuit is still pending and Judge Reeves gave Eric the option of an audit versus a sanction on the first federal lawsuit and he accepted the audit.

             Bar Counsel is a collective group of out of control bullies.  We are willing to have faith the facts of Eric’s case will anger the Kentucky Supreme Court relative to Bar Counsel’s and Frank Doheny’s conduct.  If the Board of Governors is not going to rein them in, the Kentucky Supreme Court must act. 

             6.         Relative to the costs, there is no provision to move to modify or challenge them.  Look at the list they submitted:

 $18,620 involve the federal lawsuit.

  1. They list $11,792, $9,792, $9,753, $1,325 and $1,970 just as plain ole legal costs without any indication or description of what they are.  Should we not have the right to know what these so called “legal costs” are?

 7.         3.370(7) of the Supreme Court Rules states the Board of Governors shall file a written decision in 30 days from their vote.  This happened on September 16.  They filed their decision on October 21.  Is this fatal to them?  What is the recourse?  If we missed a Brief or Appeal deadline is there any doubt we would simply lose?     

 8.         Will Frank Doheny ever be allowed to serve as Trial Commissioner again?  His conduct in this matter is unforgivable.  The stress, aggravation and financial cost he inflicted upon Eric has no remedy.

 9.         While we are grateful the Board of Governors reduced 19 convictions to 4 and 181 days to 60, we are puzzled about a few conclusions.  For example, one of the factors in the punishment against Eric is that he maintained his innocence rather than accept his “conduct”.  Well, he was found not guilty by nearly 15 unanimous votes, so why would he not maintain his innocence and why should that be held against him.

 Conclusion

             Fairness would have dictated the Board would have reached this conclusion:

             “In light of Mr. Deters having to spend five years of time, money and stress fighting 15 charges on which we have found him not guilty and considering these charges and Frank Doheny’s report were made public and certainly harmed Mr. Deters in his practice and in the forum of public opinion, we do not believe a suspension or further punishment is warranted on the four counts on which we found him guilty, especially when these four did not involve crimes, malpractice, harm to a client or moral turpitude.  Mr. Deters has been punished enough by the publicity, the time, stress and costs of the process.”

Herald-Leader : Claims about Beshear’s record on pardons half true

Friday, October 21st, 2011

By John Cheves — jcheves@herald-leader.com      Posted: 12:34pm on Oct 21, 2011; 2011-10-21T16:40:11Z

By John Cheves Herald-Leader

The statement: “When Steve Beshear became governor, one of his early actions was to grant pardons to convicted felons. Governor Beshear has granted partial pardons to at least eight convicted murderers and 14 rapists, allowing them to vote and even run for office.”

— Restoring America, an outside group supporting Republican gubernatorial nominee David Williams, in a television commercial airing this week.

The ruling: Half true.

The facts: The commercial misleadingly implies that Democratic Gov. Steve Beshear has pardoned criminals and set them free from prison.

The narrator initially uses the term “pardon,” as does the text on the screen (“Governor Beshear grants pardons to convicted felons.”) A grainy black-and-white video shows men walking out of a prison cell.

Kentucky governors do have the power to pardon those charged with or convicted of crimes. A pardon wipes the slate clean and ends a criminal case. But Beshear hasn’t issued any pardons.

Like the governors who preceded him, Beshear has issued partial pardons, also known as a restoration of civil rights. Felons who complete their sentences can apply to the governor for a partial pardon so they again can vote and hold elected office. It does not clear their records or return all of their lost rights, such as the right to own a gun.

It’s true that Beshear has issued partial pardons to the felons cited in the commercial, including eight convicted murderers in 2008. All had completed their sentences.

Restoring America fails to mention the role that Republican candidate David Williams played in partial pardons. As a state senator, Williams voted with most of the General Assembly in 2001 to make it easier for felons to apply for a partial pardon after they left prison or parole. Prior to that, felons had to initiate on their own a complicated application process.

John Cheves

Read more: http://www.kentucky.com/2011/10/21/1929681/campaign-watchdog-claims-about.html#ixzz1bRiYkT7h

U.S. CIVIL COURT SYSTEM NEEDS MAJOR OVERHAUL, NEW BOOK DECLARES

Wednesday, October 19th, 2011

From PBS Interview   Oct 2011

GW EN IFILL: Finally tonight, a portrait of the American judicial system.

The highest court in the land began its term this month with an unusually high number of consequential cases awaiting appeal, touching on subjects from health care reform to illegal immigration.

ARTICLE TOOLS

Drawing less attention are the 30 million civil court cases filed every year over everyday issues like traffic tickets, divorce and personal injury.

A new book, “Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care,” argues Americans don’t understand how the courts work and that the system itself needs a major overhaul.

Ray Suarez talked with the book’s co-author on the campus of Georgetown University Law Center’s Supreme Court Institute.

RAY SUAREZ: Rebecca Love Kourlis, welcome.

REBECCA LOVE KOURLIS, “Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care”: Thank you so much.

RAY SUAREZ: Well, the book reads like a 230-page indictment. What’s the problem?

REBECCA LOVE KOURLIS: Well, it’s not that complicated — or it shouldn’t be.

If you get in a car wreck, and there’s an argument about who should be paying damages, your assumption is that you can go to court to have that case resolved. The truth of the matter is that’s probably the last place you want to be, because the fees and the costs will ultimately be more than your car is worth, even if you drive a really nice car.

Or businesses — businesses need confidence in the fact that if they have a contract dispute, they can go to court, get a resolution for a reasonable amount of money in a reasonable amount of time. So, the first thrust is, we have to convince people that this really matters, that it’s very important to our social contract to have a civil justice system that is accessible, efficient and accountable.

RAY SUAREZ: Instead of making trials faster or cheaper or better, you say the tech revolution made them slower and more expensive and churned up a lot of extraneous material in the process.

REBECCA LOVE KOURLIS: It sure has.

First of all, very few cases are getting to trial. Only 1 percent of civil cases actually get to trial. All the rest of them settle, and not necessarily on the merits. They settle because one or both of the parties have run out of money or think they’re going to run out of money.

Into that process, then drop the electronic age. It’s no longer a box of documents that the attorneys are going to uncover in the discovery process. It is millions of documents, emails and text messages and voice messages, all of which are the discoverable.

The corporate attorneys will say that a lawsuit that would require $2 to $3 million in legal fees, so a big lawsuit, can require another $2 to $3 million in the costs of producing and reviewing electronic information.

RAY SUAREZ: So, no more continuances, no more lawyers appearing before judges and asking for another three weeks to review all the documents? That — doesn’t that drive the cost?

REBECCA LOVE KOURLIS: Yes.

RAY SUAREZ: Isn’t that contributing a lot to the cost?

REBECCA LOVE KOURLIS: Absolutely it does. And there are cases, as I’m sure you know, where everybody shows up in the courtroom ready to go, witnesses, you know, all of the evidence, and the case gets continued because the judge has a criminal case on which there’s going to be a speedy trial expiration or a juvenile case.

That can’t happen. Civil cases are really important. And they need to be treated as really important, both by the funding entities and by the judges and lawyers handling them.

RAY SUAREZ: A lot of the people who want to see civil court reform are just saying, let’s just blow up the process.

Put very high limits on getting your ticket punched to get into court, so cut out the stuff at the bottom, or putting a cap on awards and saying, these great big cases, forget it. A company shouldn’t be in jeopardy of being run out of business by losing one case — sort of the two ends of the rope being cut off by people who want to really, severely change the way we do that.

Are those answers?

REBECCA LOVE KOURLIS: No, I don’t think so, at least not fundamental answers.

The answer is to fix the system. The answer is to assure that anyone with a legitimate claim or a legitimate defense has access to a system that works, and to assure that judges are weeding the wheat from the chaff because they understand that’s part of their job.

You know, all of us, if in a position where we would need to be a plaintiff or in a position where we were sued as a defendant, we want to know that we can go to court and that there will be a cost-effective, just process in place.

RAY SUAREZ: One of the ways that people are talking about addressing dysfunctional courts is looking at the way judges are chosen. We have kind of a mix in the United States, don’t we?

REBECCA LOVE KOURLIS: Oh, it’s a hodgepodge. There are almost no two states that are exactly alike.

RAY SUAREZ: And what’s the problem there?

REBECCA LOVE KOURLIS: Oh, the problem is huge.

Let’s remember, first of all, that federal judges are appointed for life. As much as you can decry the political process at the outset, they’re appointed for life. And that’s part of the United States’ constitutional promise.

States are all over the map on this front. States, many states, have partisan, contested elections. Other states have systems that look like the federal system. And then there are a bunch of states that are in between, that have achieved this balance between impartiality and accountability.

RAY SUAREZ: But in a country that doggedly resists having the same answers to the same questions when it comes to how we run our state, can you recommend a model that would work in Missouri and Florida?

REBECCA LOVE KOURLIS: Sure. Sure.

And, in fact, we do. The appointing authority, usually the governor, appoints, and then that judge serves a provisional term in office, during which there’s a judicial performance evaluation, a report card, if you will. And that’s about the kinds of things we have been talking about. Is the judge running the courtroom well? Is the judge making decisions in a timely and understandable way? Is the judge well-prepared, knowledgeable on the law?

That information is packaged and available to the voters. And then the voters vote yes, no, up, down on that particular judge as to whether they want that judge to stay in office.

RAY SUAREZ: Have televised trials, have reality TV shows, have court TV shows, which have now proliferated across syndicated television, helped Americans understand how their legal system works?

REBECCA LOVE KOURLIS: Oh, I suppose, at some level, all the way back from “Perry Mason” to current court TV, it’s important to keep the court system in the minds of the public. And there are pieces of information that come through that are helpful, but there’s a lot of information that’s inaccurate and is, in fact, destructive.

The fundamental premise that people don’t get — and I bet if you walked out into the street now, or maybe even if you were to ask law students or lawyers — the fundamental problem is this notion that judges, like members of the executive or legislative branch, have some duty to listen to their constituency, to put their finger in the air to see which way the wind is blowing before they make a decision, rather than being accountable just to the rule of law and the Constitution, and having as their job description impartiality and integrity and a fealty to the laws and fact in a particular case.

RAY SUAREZ: “Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care,”

Rebecca Love Kourlis, thanks a lot.

REBECCA LOVE KOURLIS: Thank you.

Ninth Circuit Recognizes Federal Constitutional Limits on Use of Tasers

Tuesday, October 18th, 2011

 

By a MetNews Staff Writer  October 18, 2011

 The use of tasers to subdue persons suspected of minor offenses is subject to constitutional limits on the use of excessive force, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A sharply divided en banc panel of the court reversed two district court rulings that were argued together and consolidated for decision. The district judge in each instance ruled that the plaintiff had presented sufficient evidence for the case to go forward under 42 U.S.C. Sec. 1983, but the appellate court said the officers in both cases were protected by qualified immunity.

In a case from Seattle, a six-judge majority held that a seven-months pregnant woman tasered three times after a traffic stop had shown a prima facie violation of the Fourth Amendment, but that the law at the time of the 2004 incident was too unsettled for the plaintiff to show a violation of a clearly established right. Four judges said the plaintiff’s bizarre conduct and refusal to follow instructions gave the officers no reasonable alternative to using the amount of force that they did.

The decision was a partial victory for plaintiff Malaika Brooks, however. Because the “clearly established right” analysis does not apply under Washington state law, the court held, she has a viable claim for assault and battery.

Maui Case

In the second case, from Maui, the same seven judges similarly concluded that a woman who allegedly interfered with police as they attempted to arrest her intoxicated husband for attacking her should not have been tasered without warning, but that the officer was entitled to qualified immunity.

Two of the other judges argued that Jayzel Mattos, like Brooks, left the officers devoid of reasonable alternatives to using the electric devices. But two judges who approved of the officer’s conduct in Brooks’ case argued that Mattos was entitled to a trial to determine whether the officer who tasered her in August 2006 breached constitutional standards that were well-established at that time.

The panel that decided the cases consisted of 10 judges, due to the recent death of Judge Pamela Ann Rymer.

Judge Richard A. Paez, writing for the majority, explained that Brooks was cited for speeding in a school zone after dropping off her 11-year-old for class. After refusing to sign the citation, she became involved in a heated argument, apparently because she disbelieved the officer’s explanation that signing meant only that she acknowledged receipt and was not an admission of guilt.

After she reiterated to an arriving sergeant that she would not sign the citation, she was told she was going to jail. After she told the officers she was due to give birth in less than 60 days, and after an officer threatened her with the taser, she testified, an officer opened the driver’s side door and twisted her arm up behind her back, then removed the keys—which dropped to the floor—from her ignition. 

Another officer then applied the taser, in drive-stun mode, to her left thigh.

In drive-stun mode, the taser is applied to the subject’s body; it is a pain-compliance technique and is not intended to incapacitate the subject. In dart-mode, by contrast, the taser fires electrodes capable of incapacitating the subject by interrupting the ability of the brain to control the muscles in the body.

Brooks—who was convicted of failing to sign the ticket, but not of resisting arrest—sought damages for her injuries, including permanent burn scars.  

Domestic Call

In Mattos’ case, the testimony was that police responded to the family residence after the couple’s 14-year-old daughter called 911. Mattos claimed that she was trying to calm the situation, and avoid disturbing a younger child who was sleeping, when Officer Ryan Aikala moved toward her husband with her in the middle.

She claimed that the officer pushed up against her chest, and that she extended her arm to protect her breasts “from being smashed against” the officer’s body. The officer then accused her of touching him, and as she tried to reason with another officer, she claimed, Aikala shot her with the taser in dart-mode.

All charges against Mattos and her husband were ultimately dropped. She and her husband alleged in their complaint that the warrantless entry into their residence and their arrests violated the Fourth, Fifth, and Fourteenth amendments, but all claims except those relating to the use of the taser were dismissed by the district judge.

Paez concluded that in Brooks’ case, viewing the evidence in the light most favorable to the plaintiff, the district judge was correct in concluding that there was sufficient evidence of excessive force.  The violation, he reasoned, was relatively minor;  there was no immediate threat to the safety of the officers or the public, at least not after the keys were removed from the ignition; and Brooks was not actively resisting or attempting to evade arrest.

There was, he added, no reason for the officer to use the taser against Brooks three times within a span of less than a minute.

He also concluded, however, that Brooks is without a federal remedy because at the time, there was no Ninth Circuit law on the use of tasers and federal courts in other circuits had uniformly held that the use of the taser did not constitute a constitutional violation.

With respect to Mattos, Paez noted that the only offense she was accused of was interfering with the officer, that any such interference was—according to her version of the facts—relatively minor, that the officers could not have considered her a threat, and that while the situation was volatile, there was no evidence “that tasing the innocent wife of a large, drunk, angry man when there is no threat that either spouse has a weapon, is a prudent way to defuse a potentially, but not yet, dangerous situation.”

The lack of a warning, he added, “pushes this use of force far beyond the pale.”

But in concluding that Mattos, like Brooks, cannot pierce the police claim of qualified immunity, Paez explained that as of August 2006, there was still no federal appellate case law holding the use of the taser unconstitutional. The Supreme Court, he said, has made it clear that a court cannot find a right to be clearly established without support in Supreme Court or federal appellate precedent.

Paez was joined by Judges Susan P. Graber, M. Margaret McKeown, Raymond C. Fisher, and Johnnie B. Rawlinson.

Judge Mary M. Schroeder concurred separately, emphasizing “the non-threatening nature of the plaintiffs’ conduct,” in contrast with the danger posed by tasering, particularly the risk to Brooks’ child, although the child was ultimately born healthy.

Chief Judge Alex Kozinski, joined by Judge Carlos Bea, argued that the majority failed to appreciate the difficulty of police work and the superiority of the taser to other means of subduing suspects that are more dangerous to both the officer and the suspect.

The officers in Brooks’ case, he wrote, acted in a way that was “entirely reasonable,” “were endlessly patient,” and deserved “commendations for grace under fire.” The plaintiff, he said, “is completely, wholly, 100 percent at fault” because she “risked harm to herself, her unborn daughter and three police officers because she got her dander up over a traffic ticket.”

Kozinski acknowledged that Mattos’ case was “considerably closer,” but argued that the decision to use the taser was reasonable in the context in which the officer found himself, the need to make a split-second judgment under a difficult and fast-moving situation.

Judge Barry Silverman, joined by Judge Richard Clifton, joined Kozinski’s analysis of the Brooks case, but said the district judge was correct in finding that Mattos had a triable case. “Precedent already on the books in August 2006 provided officers and courts with enough guidance to know that a taser in dart mode is not a toy and presents a level of force on par with other implements ‘used to subdue violent or aggressive persons.’”

Pasadena attorney John Burton authored an amicus brief in support of the plaintiffs.

The cases are Mattos v. Agarano, 08-15567, and Brooks v. Daman,  08-35536

It’s Time to Stop Bullying Judges

Monday, October 17th, 2011

By Andrew Cohen   Oct 15 2011,The Atlantic

The nation has enough problems for legislators and presidential candidates to worry about. So why are they attacking the judiciary?

They can’t create jobs for their constituents. They cannot stem the budget shortfalls that are turning their districts into third-world wards. They cannot find solutions to the complex problems raised by the internationalization of world economics. And they dare not take on powerful corporate interests because that would require them to turn on their masters, the ones whose political contributions fuel their campaigns.

Inept and frustrated, insecure about their own abilities to contribute to the next American turnaround, federal and state lawmakers, most of them tea partiers or radical Republicans, have resorted to doing what bullies do when they feel the need to assert power. They are picking on people they know cannot or will not fight back. They are venting their impotence on the lone remaining branch of government that still works most of the time: the judiciary.

Spurred on by Newt Gingrich’s ridiculous plan to subpoena federal judges to Capital Hill to force them to answer for unpopular opinions, I have spent the better part of the past week immersed in the story of how legislators all over the country have turned upon judges, derided the concept of the separation of powers, and undercut the constitutional concept of an independent judiciary designed to protect individuals from the tyranny of the majority.

I have talked to experts like Bruce Fein, the conservative legal scholar, and to Laurence Tribe, the progressive constitutional law professor at Harvard Law School. I have talked to federal judges. I have looked at the issue from a federal perspective– Gingrich’s idea– and from the perspective of state legislatures– for example, New Hampshire and its rogue House of Representatives. And two stark themes have emerged from this review. 

The first theme is that many of the anti-judge theories espoused by Gingrich and company are, in the words of one federal judge I spoke with, mostly just ”pseudo-scholarship” disguised as constitutional doctrine. The other theme is that too few in high positions of government, on any level, seem willing to do what always needs to be done to stop bullies: stand up to them. This deafening silence is wrong– and dangerous. It’s time to speak up.

The Bullies

In New Hampshire last week, 258 members of the House of Representatives passed a resolution that “repudiated” a ruling by the state’s Supreme Court and urged the state Senate to simply ignore the judicial decision. On November 1st, reports William Raftery at his “Gavel to Gavel” site for the National Center for State Courts, those same legislators will spend more energy and taxpayer dollars seeking to impeach state-court family law judges. 

I don’t mean to pick on New Hampshire. All over America, GOP-led legislatures are pushing to impeach state judges. Lawmakers in Iowa, Massachusetts, Missouri, Oklahoma, New Jersey and Pennsylvania have moved in on the judicial branch, the most infamous of these crusades being the effort in Iowa to oust those state supreme court judges who voted in favor of same-sex marriage. Evidently that is still a “high crime or misdemeanor” to some.

It’s one thing for politicians to seek out impeachment proceedings that are sui generis. But now legislators are including specific impeachment language in the text of their statutes. In Arizona, New Hampshire and Virginia, rump Republican lawmakers this year introduced bills making it an impeachable offense for judges to make rulings on FOIA requests or to merely cite international law. There’s a legal term-of-art for such efforts: it’s called “bat-shit crazy.”

Nor is the national presidential conversation much better. Take Texas Governor Rick Perry, for example. He thinks Congress should get a legislative veto overriding Supreme Court decisions. Michelle Bachmann wants to strip the Supreme Court of the power to decide same-sex marriage cases. Rick Santorum wants to shut down the 9th U.S Circuit Court of Appeals. I could go on– check out the Justice At Stake site for more grim details.

And Gingrich? When I wrote two pieces last week criticizing his patently illegal plan to intimidate the federal judiciary, his campaign responded with a rambling screed that the aforementioned Bruce Fein, who once worked for Ronald Reagan, called “an embarrassment to the cerebral faculties.” Memo to the Gingrich team: if you are $1.2 million in debt don’t your staffers have more important things to do than argue the Constitution should be disobeyed?

The Meek

In response to this legislative noise there has been most silence from the judicial branch. The federal judiciary has no public relations firm. It has no savvy marketing arm. Judges are generally precluded by ethics rules and codes of conduct from engaging in the sort of political “quick-response” action that might help neutralize the partisan attacks upon their authority and independence. So they mostly sit there and have to take it.

Unfortunately, even the judges who could and should say something are silent on the topic. The Chief Justice of the United States, John Roberts, with a nearly perfect conservative voting record in his five years on the High Court bench, would be the natural and obvious tribune to deliver this message to conservatives. And he’s occasionally spoken bravely on the topic of judicial independence. But he’s been notably silent in this season of discontent. 

Justice Antonin Scalia, himself capable of bullying on occasion, also would be a perfect judicial candidate to answer those legislators who want to diminish judicial independence. But when he came to Capitol Hill a few weeks ago, he declined the opportunity to do so. Justice Clarence Thomas? There’s no chance he’s part of the solution since he’s part of the problem; he told a Nebraska audience recently that the Supreme Court has too much power.

How about that famous former constitutional law professor, President Barack Obama? Nope. He’s been mute, too, even though he’s criticized Russia for its perpetual lack of judicial independence. Attorney General Eric Holder? Nope. And even on a micro level the executive branch has failed. New Hampshire Gov. John Lynch said nothing– nothing– when his attorney general was impermissibly ordered by the state house to sue the federal government.

And where’s Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) on this? He invited Justices Scalia and Stephen Breyer to a hearing on October 5th. But he didn’t ask either man to speak up about threats to the judiciary. To my knowledge no one on the panel did. The last time the Senate evidently broached the topic with a justice was in 2007. But the world has turned upside down since then, hasn’t it?

The Brave

What’s needed here, I’m sad to say, is a Joseph Welch/Joseph McCarthy moment, wherein a bully finally gets called to account, in public, for perverting core constitutional values in the name of politics. Some political or legal leader or cultural leader needs to emerge to candidly tell these legislators not just that they are dead wrong in their analysis but that they are doing their constituents a grave disservice by projecting their own failures on the judiciary. 

President Obama should solicit and accept an invitation from the American Bar Association, or better yet the Judicial Conference of the United States, to speak out on the topic. Sen. Leahy should invite Chief Justice Roberts back to the Judiciary Committee to remind Congress that there are vital reasons why Marbury v. Madison still makes sense. Attorney General Holder, the nation’s chief lawyer, should finally pipe up. So should Justice Scalia.

Their message should be roughly the same– and if I were to spread the word it would read something like this:

All over America, citizens are in the streets to protest the government’s economic policies and Washington’s inability to solve them. Tens of millions of Americans are unemployed. The Senate is in gridlock because of the fillibuster and polls shows that support for Congress is at or near all-time lows. Local legislatures are hardly faring better. And yet amid all this lawmakers everywhere seek to blame the judiciary for the nation’s ills.

And for what? Because some legislators disagree with some rulings made by some judges. That’s a test no judge can pass, for every judge everywhere disappoints roughly half the population each time he or she issues a ruling. That’s the whole point of an independent judiciary; that it is not subject to the whims and caprices of the majority, as expressed in the sort of ideas we’ve seen lately on the campaign trail and in statehouses.

Congress should get its own house in order before it tries to clean up the judiciary. Local lawmakers ought to spend their time helping their constituents instead of trying to tweak the balance of power between the branches. Presidential candidates should offer practical solutions which tackle the big problems of our time instead of trying to sell the American people on the idea of a restructered Constitution. It ain’t broke. It doesn’t need fixing.

When unemployment is under control, when our banks are loaning money again, when our national debt and deficit are diminishing, when our prison populations are not the highest in the world, when our middle class is expanding and earning more, when our children can afford basic college, then maybe our lawmakers can have a national debate about whether it’s a good idea to neuter our judges in the name of democracy. Or maybe not.

DOES EXISTING FEDERAL CRIMINAL LAW PREVENT LARGE CAMPAIGN DONATIONS?

Sunday, October 9th, 2011

LawReader Senior Editor Stan Billingsley    Oct. 8, 2011

 MSNBC Host Dylan Ratigan has started a campaign to seek a constitutional amendment outlawing campaign contributions to legislators.   The chances for such an amendment to pass with the required 2/3rds votes of the House and Senate are probably very unlikely.

 However, the U.S. Attorney General may already have existing statutory authority to examine the response of candidates for public office who receive large campaign contributions and then vote to support the interest of the donor.  

 We cite the language of Title l8 of the United States Code below which appears to be broad enough to impose criminal penalties upon the shoulders of any member of congress who accepts large campaign contributions in exchange for legislative support of the donor’s agenda..

 The federal statute says:

 “…being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

 (A) being influenced in the performance of any official act;…”

 The courts have recognized the requirement that statutes be given an interpretation that enforces the plain and simply meaning of the statute.

“…text of the statute is used first, and it is read as it is written, using the ordinary meaning   of the words of the statute.”

U.S. Supreme Court: “[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, “when the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” 503 U.S. 249, 254″

The following statute imposes even campaign gifts to third party entities, and not just personal gifts to the candidate.

 UNITED STATES CODE

 TITLE 18 – CRIMES AND CRIMINAL PROCEDURE

PART I – CRIMES

CHAPTER 11 – BRIBERY, GRAFT, AND CONFLICTS OF INTEREST

         Sec. 201. Bribery of public officials and witnesses

         (a) For the purpose of this section -

        (1) the term “public official” means Member of Congress,

      Delegate, or Resident Commissioner, either before or after such

      official has qualified, or an officer or employee or person

      acting for or on behalf of the United States, or any department,

      agency or branch of Government thereof, including the District of

      Columbia, in any official function, under or by authority of any

      such department, agency, or branch of Government, or a juror;

        (2) the term “person who has been selected to be a public

      official” means any person who has been nominated or appointed to

      be a public official, or has been officially informed that such

      person will be so nominated or appointed; and

        (3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.

       (b) Whoever – (1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent –

                (A) to influence any official act; or

          (B) to influence such public official or person who has been

        selected to be a public official to commit or aid in

        committing, or collude in, or allow, any fraud, or make

        opportunity for the commission of any fraud, on the United

        States; or

          (C) to induce such public official or such person who has

        been selected to be a public official to do or omit to do any

        act in violation of the lawful duty of such official or person;

         (2) being a public official or person selected to be a public

      official, directly or indirectly, corruptly demands, seeks,

      receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return

for:

          (A) being influenced in the performance of any official act;

Pithy and Witty Quotes To Live By – by attorney Steve Huddleston

Saturday, October 8th, 2011

Pithy and Witty Quotes by attorney Steve Huddleston

Lincoln said you can’t fool all the people all the time.  It’s equally true that you can’t give everything to everybody all the time.  Now, you can, but shouldn’t, give everything to the same few of the people every time.  George Bush didn’t say that, although lots of people are trying to.

Cold showers make me shiver.  Hot showers make me jump away.  I like my showers somewhere in between.  The same with politics.

Would someone important please tell the world that there are no such words as preventative and incentitive.  While we’re at it, why is arbitrator a word?  Doesn’t arbiter do it?  Why commentator instead of commenter?

Christianity is a mighty fine thing.  The problem with Christianity is that very few self-professed Christians seem to believe in it.  Case in point:  The Lord says that vengeance is His; that He will repay.  That should be good enough for any Christian.

It is a good thing to be rich.  There is nothing inherently wrong about being rich, nor with rich people.  I wouldn’t mind it one bit myself.

            What is wrong is to operate a government exclusively for the benefit of the rich.  This country is being run entirely for the benefit of people who don’t need the help.

            Aside from being unethical in the short-term and unwise in the long-term, it is hugely and unnecessarily expensive.  Big cats eat big.  A mouse does nothing to dull a tiger’s appetite.  Give a tiger a mouse and you’ve wasted a mouse.  It takes a wildebeest to improve a tiger’s disposition.

            Let us pay homage to computer technology.  It has enabled us to save time by working at home, on vacation, in airports and everywhere else at any time.  In truth, no one has ever saved time and no one ever will unless and until someone discovers how to put more than 24 hours in a day.

            By the way, where is all that daylight we saved last summer?

            I read where Toby Keith said that his daddy and granddaddy would roll over in their graves to know that he is a Republican.  He said further, according to the article, that his daddy always said that they didn’t have enough money to be Republicans, but now he, Toby, does have enough money to be a Republican.  Daddy and granddaddy must be very proud.  Now that he has achieved material success, he forsakes the party that sustained him when he didn’t.  

            I don’t know whether Toby really said this, but certainly a lot of former Democrats in similar situations have.  To them I say, congratulations.  Truly, you are Republicans.

            Here’s the way it works.  As Average Joe struggles and strains to pull himself up the ladder of prosperity, rung by hard-fought rung, he can count on the Republicans to be there stepping on his fingers all along the way.  If he somehow makes it to the top, the Republicans will be there to extend a friendly hand.  Welcome aboard.  Behold the splendors.  Let them be not defiled by grubby hands.  Know your duty.  Step on fingers.

            This is not new.  It is the Indian gauntlet.  If you survive, you get to be an Indian and beat up other aspirants.

            There are two fundamental political theories competing for dominance in this country.  The one that is winning promotes a system whereby it is relatively easy to maintain and enhance great wealth and, as a consequence, difficult to climb over the edge of poverty into the middle class.

            The other would make it easier to move up to middle class comfort, such as it is, from impoverishment.  As a consequence, the maintenance and enhancement of great wealth would require some effort; such as intelligent thought and wise decisions.

            The latter theory made America great. The former, if it subsists long enough, inevitably leads to Marxism or worse.

            If Congress really wanted to improve the lives of average Americans, it would outlaw automated phone systems.

            State presidential primary elections are an abomination.  The expense is horrendous.  Each Party’s candidates beat each other up.  Guess what, the other party is taking notes.  The issues are not delineated because the process is essentially a beauty and fund-raising contest and the forum changes from week to week.  In this the elections are not held on the same day, the sense of the people is fragmented.  Convention votes are committed to a particular candidate weeks and months before the date the votes are to be cast.  What, in the name of Sam Rayburn, are the political props, such as they are, thinking?  There are a number of states where Republicans can vote in the Democratic primary, and vice versa.  Are you kidding me?  That is not a party primary – that is stupidity. 

            Moreover, this primary election process rarely produces the party’s best nominee, which sort of defeats the whole purpose.  The whole thing is like something out of a Kafka novel.  For a party to submit to such a system exhibits a fundamental lack of understanding of politics.  It doesn’t do the country at large any favors either – waste of treasure, poor candidates, mind-numbing drivel, incessant advertising.  Oh, Richard Daley, where art thou?

            Currently, Republicans are not much hurt by the stupidity as they obviously will coalesce behind the President.  But they have been and will be in the future.  Meanwhile, Democrats wither under self-flagellation.  We should go back to the smoke-filled rooms of party conventions and let the people who know the candidates nominate them.  Then, the parties can square off with their best candidates in the general election. 

            What is it about political office in America that is so precious?  Men and women are willing to do those things necessary to procure millions of dollars to keep or attain it.  They are willing to practice scorched-earth politics; visiting shame and destruction not only upon their opponents, but anyone else in the way (such as the innocent families of their opponents).  If the straight-forward truth won’t suffice, hired mercenaries are given free rein to twist and distort as necessary.  They expose themselves and their families to the same abasement.  All of this for jobs that pay no more than $150,000 per year (presidency excepted) and usually a lot less.

Officeholders rarely resign, short of imprisonment, although certain defeat and disgrace await and even if resignation might spare them and others great embarrassment.  Can you imagine an American officeholder willingly calling for a vote of “no confidence” and gracefully resigning upon an unfavorable outcome?  It happens in other countries.

You can tell a lot about a man by what he holds dear.  There is something so captivating about holding public office in this country that a man will justify about anything to have it.  It’s not the salary.  So, what then?

America has never come to grips with race relations.  It’s difficult, but keep this in mind.  God could not have intended for man to be treated on the basis of the color of his skin.  This is undeniable.  All else is nonsense.

The mayhem and murder that stalks the land is mind-boggling.  Not to mention the thievery and unethical business practices.  And there’s more than a bit of pedophilia and other perversions afoot.  People seem so easily given over to the dark side.  Why?  Because no one is afraid of what is to become of his soul in the hereafter. 

In past days, even wanton criminals and gangsters stopped short of certain crimes.  Even they drew a line.  Can you conceive of Jesse James or Al Capone raping an 8 year old or killing a woman for no reason?

Nobody is scared of going to hell anyone.  It almost makes you hope there is a Hell.  I say “almost”.  I’d be more comfortable if I knew Hell’s exact admission standards.

            Death is the penultimate equalizer.  We will all die.  In death, we are all the same.  What becomes of our souls will not be determined by our material success.  Our lifetimes, compared to eternity, are hiccups.  Now, you either believe in something religious or you don’t.  If you profess to believe in something, you should keep in mind that you’re going to die and act accordingly in life.  Talking about what you believe in means nothing.  You ain’t fooling anybody important.

            Of all the things the government should not be doing conducting a lottery is at the top of the list.  There are opportunities in our economic system to get something for nothing.  It’s good stuff if you’re lucky enough to get it.  But the government should not be promoting and fostering the notion.  A lottery is the most insidious form of gambling.  It is promoted by taxpayer purchased advertising indiscriminately directed toward the public, that includes the poor, the weak-minded, the desperate, juveniles and everybody else.  When the Mafia did it, it was the numbers racket.  When the government does it, it’s a lottery.

            I never knew a good man that had to go around telling everybody that he was good in order to prove it.  Bible-thumping politicians are the worst.  We could do with a lot less thumping and a little more reading.

            The more rigid and moralistic the government becomes, the more wanton becomes criminal behavior, and more frequent.

            Somewhere along the way, Americans abandoned the very personal pursuit of a small, rich life in favor of the headlong chase of a large, empty one.

            It now seems clear that the power outages resulting in the great Northeast Blackout of August 14, 2003, originated with a utility company in northern Ohio.   Isn’t it time for somebody to apologize to Canada?

            Labels are for sweatshirts, not people.  The stamping of politicians with labels – conservative, liberal, moderate, knucklehead – has all but eradicated statesmanship from the political area.  The acceptance and brandishment of one’s label is pathetic.

            Office-holders have given over their thought processes to others with great relief.  Any thinking person will be liberal, on some issues, conservative on others, and somewhere in the middle on the rest.

            But, oh no, once branded, our officials cling to the party line handed down from the kings of conservative/liberal policy, as the case may be.  To do otherwise makes one liable to being stripped of his label, a prospect both loathsome and frightening.

            Sadly, most folks wee elect are merely pawns in a big chess game for the spoils of the wealthiest nation in the history of earth.

            Knights are useful pieces because they move in directions unique to themselves.  Pawns are usefully primarily to protect the king.  There are four pawns to every knight on the chessboard.  We should be thankful were the ratio that high on the realpolitick gameboard.

            A model should be developed for study in high school civics (obsolete) classes as follows:

                        There exists a nation blessed with great natural resources, natural barriers to invasion, a creative and a productive populace, a temperate climate and capital sufficient to service needs far beyond the basics.  In this country, those that seek to aid the poor and unfortunate, promote peace, restrain the carnage of wars, preserve the environment for posterity, deter unethical business practices and suppress greed, urge tolerance of differing beliefs and generally promote the common welfare are reviled as weak, contemptible and unfit for responsibility.

                        While those who seek to concentrate the nation’s wealth in a very few, subject the health of the environment to unrelenting demands for creation of wealth, reward and glorify greed, believe money equals speech, care not for the poor, despise those who think differently, bask in war and disharmony and generally abase anyone who is not them are given full run of the land – to work their will as they, in their discretion, deem fitting and proper. 

            This should be studied.  It really could happen somewhere.

It was asked long ago -  “Why do the heathen rage?”  It should now be asked – “Why are all the rages heathen?”

What does it say about us that we continue to send our money to Wall Street?  How many times and for how long must they steal before we come to our senses?

A fellow who shoplifts out of want is weak and nonetheless a thief.  We understand his thievery but wouldn’t hire him to clean out our garage.

Yet, we send our money to people on Wall Street who we don’t know except that they steal and have become fabulously wealth doing it… Are we so naïve as to believe that they steal from others, but wouldn’t do it to us?  I suspect we figure next time they steal it will work to our favor.  It’s kind of like betting on a fixed horse race.  It really doesn’t matter if you don’t know how it’s fixed.

A fellow who steals from want bears watching.  But beware the man who doesn’t have to steal, but does.

Write your Congressman.  Stop the slaughter.  We must build a separate highway system exclusively for semi-tractor trailer trucks.

The Supreme Court has heard a case where a state-financed college scholarship has been denied an otherwise qualified student because of his chosen court of study, theology.

Why a bright young scholar wants to devote himself to questions so trivial as who we are, how we got here and what we’re supposed to do while here, heaven only knows.  Anyway, it has caused something of a stir.

One side has it that to sponsor the study of theology with government funds violates the constitutional imperative of church and state separation.

Separation of church and state is vital.  Especially in these times when it seems the country abounds with holier-than-thous intent on lock-stepping us all into that most abominable of all subjugations – a theocracy. 

But you know, it’s possible to get too much of a good thing.

It matters not whether the student, or any student, or the donee of the scholarship funds believes in one god, many gods or no god.  Religious thought and examination has produced the most profound insights and observations were developed by mankind, as well as the shallowest.  The implications of religion and theology have occupied and unsettled the mind of man since time immemorial.  Theology is a field of study, no more theoretical nor less important than nuclear physics.  It needs to be studied by our brightest minds.  Nothing else matters much in comparison.

SUPREME COURT: IN CORY MAPLES CASE, SCALIA IS ONLY JUSTICE TO O.K. CAPITAL PUNISHMENT DESPITE MAILROOM MIX-UP

Thursday, October 6th, 2011

 

 By Ashley Portero | October 6, 2011

(Quotes for above titled article.)

Capital punishment is a subject that has received a good deal of media play over the past month or so. In particular, the cases of Texas inmate Duane Buck, who was temporarily spared though a stay in execution, and Georgia inmate Troy Davis, who was killed even though a slew of evidence and witness reports that led to his conviction were later recanted, led to widespread discussions about the nation’s application of the death penalty and the legal snags that can make or break a case. The latest court battle surrounding capital punishment now involves a legal and moral question that has even puzzled the U.S. Supreme Court — should a prisoner be executed because of a mail room mix-up? The case in question involves Cory R. Maples, an Alabama death row inmate who is facing execution because two lawyers at a New York law firm handling his appeal left their firm without notifying Maples or the state of Alabama Maples was convicted of gunning down two friends after a night of heavy drinking in 1997, with a jury sentencing him to death with a 10-2 vote. Because Alabama is the only state that does not grant taxpayer funded legal assistance to death-row inmates seeking to challenge what happened at trial, when Maples appealed the death sentence he had local counsel acting in name only and was actually represented pro bono by two second-year associates from the New York law firm Sullivan & Cromwell. Did Mail Room Mistake Result in Lack of Counsel? It seems like a lucky break, but it wasn’t.

Maples’ lawyers, who associated themselves with an Alabama-licensed attorney, John Butler, Jr., as required by state law, initially filed a petition arguing that their client’s death sentence should be overturned due to “ineffective assistance of counsel” at trial. Eighteen months later, a judge dismissed the petition and the court sent notice of the decision to all three lawyers. However, by that time, both of the New York attorneys had left Sullivan & Cromwell, leading the firm’s mailroom to send the decision back to the Alabama court with “Return to Sender” written on the unopened envelope. The county clerk filed the envelope away without informing Butler it had been returned and subsequently Maples — who thought he had three lawyers on his team but in fact didn’t have any — missed the 42-day deadline for filing another appeal. Eventually, the state sent a notice directly to Maples about his denied appeal. …. The Supreme Court may have some extreme characters, but according to reports of the hearing, none of them want to be the person that says a man should be executed as a result of a mailing mistake… except Justice Antonin Scalia. Most of the court seemed surprised at Alabama’s decision to deny a man the right to appeal what is literally a life or death sentence when, according to Justice Samuel Alito, the mix up occurred “through no fault of his [Maples] own, through a series of very unusual and unfortunate circumstances.”

… …Even Alabama Solicitor General John Neiman, when prompted by Kagan, admitted that if he had in the state’s position and had the letter sent back unopened from the missing lawyers, he “suspects that in those circumstances I might well personally do something else.” Scalia, however, said there is nothing in the U.S. Constitution or federal rules of procedure that says an accused party has the right to judicial notice, noting that even in capital punishment cases, “Once you are in court and you have a lawyer, it’s up to your lawyer to follow what goes on in the court.” That may be the point many Americans should take away from this case. Because, if Scalia is right, it means that in the U.S. court system, an accused party’s only lifeline is with their attorney — whether that attorney is competent or not. It means that even if a lawyer unceremoniously (and unprofessionally) drops a client, even one facing lethal injection, well … that’s just tough.

LAWYERS RIGHT TO CRITICIZE POLICE, PROSECUTORS AND JUDGES

Wednesday, October 5th, 2011

   In 1959 the U.S. Supreme Court upheld a lawyer’s right to criticize the conduct of police, prosecutors, and judges.  The Ky. Supreme Court upheld that right in 1980.  In 1990 the Ky. Supreme Court adopted a Supreme Court Rule (SCR 8.2) which appears to take away that right of free speech.

SCR 3.130(8.2) Judicial and legal officials

     (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

     (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

HISTORY: Adopted by Order 89-1, eff. 1-1-90

 

     SCR 3.130 (8.2) has been argued by the KBA Bar Counsel to prohibit even a polite rational argument by a lawyer concerning the legal basis for a finding of the Legislative Ethics Commission.  This argument by the KBA Bar Counsel seems to conflict with the U.S. Supreme Court ruling.

The U. S. Supreme Court has previously ruled:

“(A) lawyer may criticize the law-enforcement agencies of the government and the prosecution, even to the extent of suggesting wrongdoing on their part, without by that token impugning the judiciary….The court stated that a lawyer can properly criticize a judge’s view of the law. “if the judge was said to be wrong  on the law, it is no matter: appellate courts and law reviews say that of judges daily, and it impugns no disgrace. Dissenting opinions in our reports are apt to make the lawyer’s speech look like tame stuff indeed. (She) did not say the (Judge) was corrupt or venal or stupid or incompetent. The public attribution of honest error to the judiciary is no cause for professional discipline in this country.”   Sawyer 19, 20 1959, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed2d 1473 (1959), as quoted by the Kentucky Supreme Court in KBA v. Heleringer, 602 S.W.2d 165 (Ky. 1980).”

THE KY. BAR ASSOCIATION OPERATES A PROGRAM CALLED ‘THE ETHICS AND PROFESSIONALISM ENHANCEMENT PROGRAM” (EREP).

Wednesday, October 5th, 2011

By Stan Billingsley    Oct. 5, 2011

    We recently read a discipline ruling that referred to a program operated by the KBA for attorneys who are in the discipline process.    We asked the Bar Counsel to educate us on this program.  Bar Counsel Linda Gosnell was kind enough to answer our inquiry and explain the program to us in a recent letter.

She explained:

“The EPEP is a one day program offered by the KBA and the Office of the Bar Counsel specifically for lawyer Respondents in Discipline cases.”

“…the chief objective of the program, which is similar to that in other states, is to enhance available options for disciplining lawyers who are having difficulty complying with their responsibilities to their clients as set forth by the Ky. Supreme Court.”

“In some instances, particularly those involving multiple rule violations or repeat low level offenders, requirements of attending EPEP are extremely helpful in helping these lawyers in their practices to improve the service they can render to their clients. The goal of attorney discipline is protection of the public. The program is designed to assist both the lawyers and their future clients.”

“Individual lawyers can be ordered to attend this program by the Supreme Court, or required to attend as part of conditional resolution by the Inquiry Commission.  In some instances lawyers can be referred by the Office of Bar Counsel, with the agreement of the lawyer, in connection with matter disposed of under SCR 3.160(3).”

“Lawyers who attend, pay for it, as this program is financially self-supporting. Accordingly, both because the lawyers are paying to attend, and because a test is included which is administered at the end of the program, the materials are not available for distribution.”

   Those attorneys who practice discipline cases should be aware of this program and might consider this option in negotiations with the Bar Counsel.