Archive for November, 2011

FEDERAL JUDGE SEALS ANGELA FORD ACCOUNTING WHICH SHOULD SHOW NAMES OF LAWYERS SHE DISTRIBUTED FUNDS TOO

Wednesday, November 30th, 2011

FEDERAL JUDGE SEALS ANGELA FORD ACCOUNTING: On Wednesday Nov. 30, 2011  The U.S. Attorney’s office advised LawReader that Federal Judge
Danny Reeves “has ordered that the accounting document not be placed into the public record.  Therefore, it will not be available for public consumption.”
This accounting document is the accounting
sought by the U.S. Attorneys office regarding  Angela Ford’s handling and disbursement of $43 million dollars seized from  the assets of William Gallion, the Ky. Fund for Healthy Living, and other Fen Phen attorneys.  It is expected that this accounting will reveal the names of attorneys who received payment from these funds.  In 2009 the Courier Journal quoted Ford as saying she had distributed funds to herself and “to other attorneys“.

Retired Judge Stan Billlingsley and former Legislator Larry Forgy Call on Supreme Court to Appoint Independent Investigator

Wednesday, November 30th, 2011


LETTER TO:  The Kentucky Bar Association Board of Governors / Supreme Court from Retired Judge Stan Billingsley and former legislator Larry Forgy

RE:  CALL FOR AN OUTSIDE INVESTIGATION OF THE BAR COUNSEL’S OFFICE AND SUGGESTIONS
FOR RULES CHANGES IN THE ATTORNEY DISCIPLINE PROCESS

Date: Nov. 29, 2011

The events of the last two weeks, which ended in the KBA Board of Governors firing Bar Counsel Linda Gosnell, raises numerous issues of great concern to the 16,700 attorneys whose dues pay for the
operation of the Kentucky Bar Association.

As  members of the Kentucky Bar Association we can only speak for ourselves.  Nevertheless, we believe that many lawyers across the Commonwealth are deeply troubled by the mounting allegations
concerning the conduct of the Bar Counsel’s Office since 2003.

We recognize and praise the recent action of the Kentucky Supreme Court in amending SCR 3.370(8) to repeal the right of the Bar Counsel to impose cost bills on an attorney as a precondition of the attorneys right to appeal ethics charges to the Supreme Court.

We recognize and praise the Board of Governors of the Ky. Bar Association for summarily discharging Linda Gosnell.   We are troubled however by the fact that the President of the Bar Association has not
disclosed the reason(s) that Linda Gosnell was discharged.  Why is the Bar President being secretive on this issue?  This does not build confidence.

We have received reports from several sources of the existence of the so-called “Houlihan  Report”.  It is reported that in 2010 the KBA itself appointed an outside investigator, Robert Houlihan, to investigate the operation of the KBA regarding their conduct in acting on claims against a KBA officer. This report is said to be highly critical of the conduct of the KBA.  This report has been suppressed by the KBA.  This suppression of a report by the
KBA’s own outside investigator suggests that the KBA should not have a part in the selection of the outside investigator requested by this letter. Further, the full and complete “Houlihan Report” should be released to the
public.

We respectfully request that the Board of Governors review all of the allegations relating to alleged abuses of the Bar Counsel’s Office, and by fully and completely disclosing the facts known or discovered
by the KBA, which may have influenced the discharge of  Linda Gosnell or which disclose other wrongs of the KBA or Bar Counsel’s office.

The Board of Governors cannot protect the reputation of the KBA by failing to fully disclose the facts behind the discharge of the Bar Counsel.  It is not in the best interest of the KBA ,or
the Board of Governors, for the Board to hide behind a claim of “confidentiality”.

The public has the right to have the problems associated with the structure and operation of the Bar Counsel’s office closely examined.  Merely firing one person does
not put to rest claims of other alleged wrongs, and does not correct the structure which may have allowed other wrongs to occur.  The actions of the Board of Governors are
encouraging, but as we see it, the work on their desk has not been finished.  It is hoped that the KBA does not fall into the trap of institutional self-protection that hides embarrassing deeds.  This defensive posture always fails.
We believe the interest of the Board of Governors would be best served by their hiring a totally fulltime in-house legal advisor who reports only to the Board. This appointment would be separate from the outside
independent investigator this letter requests to review the conduct of the Bar Counsel’s office.

The in-house legal advisor to the Board, should  be free to monitor the conduct of the Bar Counsel’s office.  This legal advisor to the Board of Governors should be totally independent of the Bar Counsel’s office. An existing  rule, SCR 3.155,
authorizes this action by the Board.

The Trial Commissioner’s assigned in ethics prosecutions should be able to call on the Legal Counsel for legal advice.  Attorneys who allege abuse of their rights by the Bar Counsel’s office, should be able to present their claims to this
in-house Legal Advisor.

No longer should the Board of Governors, when acting in a judicial function when hearing ethics appeals, be advised by the Chief Ethics Prosecutor.  No longer should the Trial Commissioners
assigned to conduct hearings of ethics complaints be advised by the Bar Counsel’s office. It should be clearly established by a new SCR that any ex parte communications between the Bar Counsel’s office and the Trial
Commissioner or Board of Governors should be prohibited, and any violations immediately shared with the defendant attorney and reported to the Judicial Conduct Commission.

The Supreme Court Rules which forbid prosecutors from assisting or encouraging a judicial officer to violate the Judicial Code of Conduct, particularly those forbidding  Ex Parte communications, should be strictly
enforced. See: SCR 3.130(8.4) . It is our opinion that all KBA Trial Commissioners are subject to the Judicial Conduct Code.  If a Trial Commissioner violates the JCC, they should be reported to the JCC.

There are several steps which should in our opinion be taken to assure the 16,700  members of the Ky. Bar Association, and the public, that the Board of Governors is diligently seeking to fully inform
itself as to the growing list of allegations which are being discussed in the legal community in Kentucky.  The public wants to be reassured that the Board intends to fix any problems which may have
allowed an abuse of attorneys rights by the Bar Counsel’s office.

REQUESTED ACTIONS OF THE BOARD OF GOVERNORS
1. The Board of Governors should immediately make a full and complete report of  all their reasons for discharging Linda Gosnell as Bar Counsel.  Any knowledge they may have regarding
wrongdoing or suspected wrongdoing by Linda Gosnell or the Bar Counsel’s office, should be disclosed.  Also the KBA should immediately release the complete “Houlihan Report.”

2. The Kentucky Supreme Court should appoint an outside independent investigator (with the assistance of the Attorney General) to fully investigate the many allegations concerning the past operation of the Bar
Counsel’s Office. This outside investigator should have access to all records of the Bar Counsel’s Office.  It would be prudent for the Board of Governors to request that the Supreme Court appoint this
independent investigator. This would assure the public that the Board of Governors’ is committed to cooperate fully in the investigation.
The main issues that should be reviewed by the independent investigator include:

a. Disclosure of all instances where the Bar Counsel included attorney fees as part of the “cost and expense” bills imposed on attorneys convicted by the Board of Governors.  This investigation  should identify the outside lawyers hired by
the Bar Counsel, the amount of all outside legal fees charged, and should seek a proper accounting of the basis for each legal fee imposed on attorneys.

If any attorneys were improperly charged for attorney fees by the Bar Counsel’s office, those fees should be refunded to the attorney’s that paid them.

If the rights of any attorney to file an appeal  were infringed upon, due to the improper demand by the Bar Counsel that inappropriate “costs” were required to
be paid in advance of the attorneys right to appeal to the Supreme Court, or due to denial of due process rights, then this information should be revealed
to the offended attorney, and he/she should be allowed to receive a hearing to determine if his/her due process rights were violated.

b. The investigation should examine the relationship of  Linda Gosnell to anyone who may have improperly benefited financially from the Bar Counsel’s selection of outside counsel.

c. The investigation should review the Accounting of Angela Ford sought by the U.S. Attorney’s Office. This report is now in the possession of the U.S. Attorney’s office.
This accounting should be made public.  In particular the names, dates, and amounts of any payment made by Angela Ford to any other attorney should be made public.

The investigation should study any efforts by the Bar Counsel’s office to inform themselves about handling of the escrowed funds  seized by Angela Ford, and determine the legal authorization for Ford to have
distributed any of said funds in the absence of a final judgment.

In 2009 Angela Ford was interviewed by the Courier Journal, and she stated she had been paid “$7,500,000″  due to the summary judgment she obtained in the Abbott v. Gallion case in Boone Circuit
Court. In that news story she is quoted as saying that some of that money went to “other attorneys.”   Who are those “other attorneys” cited by Angela Ford?   The investigator should take the advice of
Deep Throat in the Watergate scandal who said, “Follow the money.”

The investigation should examine the handling of funds seized from the Kentucky Fund for Healthy Living.  The Boone Circuit Court ordered that the Trust should be dissolved. The funds in the Charitable Trust were seized by Ford, and
at the time of the 2009 news story in the Courier Journal, this $23,000,000 seized from the Charitable Trust were the only funds in her possession.

Ford reportedly made a distribution of those trust funds to her clients (some 300 of the 440 Fen Phen plaintiffs), and it is possible that many Fen Phen plaintiffs not represented by Ford were not included in this distribution. She
paid herself, “and other attorneys”, $7,500,000 out of the funds seized from the Charitable Trust. (See the Courier Journal article of 2009 written by Andrew Wolfson.)

Pleadings filed by the U.S. Attorney seeking an accounting of Angela Ford, and newspaper reports,  suggests that to date  Ford has been paid in excess of $13,000,000 out of the funds she seized.  We cannot
ignore that there is no final judgment upon which Ford may justify any disbursement to her clients or to herself.
There is a possibility that the civil case awarding Ford’s clients $43,000,000 could still be retried and there is a chance that a jury might rule against Ford’s clients, and then the court will be presented with the problem
of trying to recover the $43 million handled by Ford, but which has been distributed to the four corners of the world.  That is why proper legal procedure mandates that seized funds not be distributed until the judgment is final.
This is known as “the finality rule”.

The issue that should be reviewed by the outside investigator is, what has the Bar Counsel’s office done to protect these funds?   Did the Bar Counsel’s office
know about and ignore the disbursement of $43 million dollars?  If an improper disbursement has occurred , the public is entitled to known why has the Bar Counsel failed to timely
protect these funds?

The Accounting ordered by Federal Judge Reeves, will answer some of these  question.  Since at least December of 2010 the U.S. Attorney’s office was taken positive steps to protect the interests of clients
who had claims.  The U.S. Attorney’s office filed a motion in Jessamine Circuit Court in 2010 to set aside the judicial sale of Bill Gallion’s home in which Ford is alleged by the U.S. Attorneys office to have spent funds from clients escrow accounts to fund the purchase of the Gallion home.  The U.S. Attorney pleadings alleged that Ford did not represent all of the Fen Phen plaintiffs, that she was holding funds for their interest, but that she used
these escrow funds belonging to clients she did not represent.  The Jessamine Circuit Court set aside that sale.

Where was the Bar Counsel’s office when the U.S. Attorney intervened to protect escrowed funds?   The U.S Attorney later sought an accounting from Ford, and Federal District Judge Reeves ordered the accounting.
Ford appealed to the 6th.  Circuit to stay or prevent the accounting but the 6th. Circuit denied her motion.   Again the investigation should review why the Bar Counsel’s office was absent from the efforts to protect clients funds
held by Ford.

Were the rights of the Fen Phen plaintiffs who were not represented by Angela Ford, but who were members of the class, violated when they did not share in that distribution?  What did the Bar Counsel know about this
allegation and what action did they take? What did the Bar Counsel know about a distribution of any funds which were based only on the reversed ruling of the Boone Circuit Court?

Further, the investigation should examine why the attorney for the Charitable Trust was informed by the trial court that his future legal fees for his defense of the Charitable Trust would not be paid, thus denying an appeal regarding dissolution of the Charitable Trust.  Why was a formally registered Trust denied the right to defend itself by the filling of an appeal?

The Kentucky Court of Appeals in  Case NO. 2007-CA-001971-MR,  dated February 4, 2011, reversed the ruling of the Boone Circuit Court granting judgment to Ford’s clients.  This
reversal and remand for a new trial ruling by the Court of Appeals, reversed the entire award of $43 million (which included $23 million in the Kentucky Fund for Healthy Living). That matter is on appeal to the Kentucky supreme
Court.

d. The investigation should seek to explain the long history of dilatory actions of the Bar Counsel’s Office in many cases, in not promptly investigating and concluding ethics prosecutions.  Many ethics cases have been open for years,
in some cases as long as eight or nine years.  In particular, the investigation should review any financial links between persons associated with the ethics prosecution procedures and Angela Ford.  These lengthy investigations have
placed a great emotional and financial hardship on some, and is believed by some to have been used as a ploy to protect others.  We note that in Kentucky and Federal criminal prosecutions , any delay of a year or more is “presumptively
prejudicial” to the defendant.
e. The investigation should examine allegations that Linda Gosnell threatened opposing legal counsel with ethics sanctions if they proceeded with their legal arguments in defense of their client. It is reported
that in several instances the Bar Counsel’s office began investigations against attorneys who representing clients she was prosecuting.  This surely worked a chilling effect on the
ability of lawyers to represent their clients.  Was there any basis for these ethics investigations and threats of investigations other than an attempt to intimidate trial counsel?

f. The investigation should examine allegations that Gosnell may have violated the Rules of Professional Courtesy by being hostile and disrespectful of witnesses called in the behalf of a defendant.

g. The investigation should examine claims of favoritism by the Bar Counsel’s office in favor of  past officers of the KBA.

h.  The investigation should determine if the rules regarding procedures for the selection of Board of Inquiry members and Trial Commissioner’s, were conducted in a
manner other than random selection.  The investigator should ask whether or not the powers of the Kentucky Supreme Court were infringed upon by the Bar Counsel’s interference with the selection of
Trial Commissioners and Board of Inquiry members.  One allegation claims that when the name of one Trial Commissioner was submitted to hear a pending case, that the Bar
Counsel “vetoed” this appointment and explained that he was not qualified to deal with “such complex issues”.  The Supreme Court had approved this
name.  What rule allows the prosecutor to select the judge?

i.  The Board of Governors should disclose information about all instances since 2003 where they may have authorized the hiring of outside counsel to assist the Bar Counsel. The Rules clearly permit the Board to hire outside counsel, but the members of the Bar should be informed why outside counsel are being hired, how much has been paid to outside counsel, particularly when the Bar Counsel’s office already employs nine full time lawyers?

j. The investigator should review any potential expenditure of  KBA funds made without the express authorization of the Board of Governors.  Supreme Court Rules require that all expenditure of KBA funds be in compliance with the
budget authorized by the Supreme Court.  Did the Supreme Court authorize in their budget approval, the payment of large fees to outside counsel hired by the Bar Counsel?

k. The investigator should examine claims of favoritism in the appointment of outside counsel. The investigation of the actual work done by outside counsel should be studied.  Was the assigned work of outside counsel
actually done?  Were the outside legal fees fairly earned?

l. The investigator should examine whether outside counsel hired by the Bar Counsel, were properly assigned to do work in cases within the jurisdiction of the Bar Counsel’s office, and whether or not their legal work was properly billed to the case they worked on, and whether  some outside counsel fees billed to defendant attorneys for work done in other cases?

m.  The investigation should evaluate the use of “confidentiality” and secrecy procedures of the Bar Counsel’s Office.  Were such rules properly followed? Are such rules in the best interest
of the Kentucky Bar Association?

Did the Bar Counsel’s office use threats of investigations and the filing of ethics charges in cases, in an attempt to coerce action in other cases?  Has the Bar Counsel’s office filed charges against attorneys who chose not to agree to
a lesser charge and asserted their right to offer a defense?

Has the Bar Counsel improperly filed ethics charges solely for the purpose of denying readmission of attorneys who have served their period of suspension from the practice of law?

n.  The investigator should examine the handling of all files and records of the Bar Counsel’s Office to assure that none of these files are missing.  The investigation should review the length of
time that Bar Counsel investigations were conducted and to determine if there were any violations of the Supreme Court’s “promptness” rule. See: SCR 3.180 Investigations and trials to be prompt. Investigations
and prosecutions that take eight years are not “prompt.”

o.  The investigator should review whether or not Bar appointments  have been excessively given to lawyers affiliated with large defense law firms. Have personal injury lawyers and small
firm lawyers been unfairly subjected to ethics prosecution, while violations by large civil defense firms and prosecutors been ignored by the Bar Counsel’s office?

p. The investigation should determine whether or not the Board of Governors authorized the hiring of outside counsel in the John M. Berry Jr. case, which has placed the KBA in jeopardy of a federal award under
the Civil Rights Act Section 1983, in the form of a sanction for attorney fees.

The ACLU, who is representing Berry, is almost certainly seeking an award of attorney fees as authorized by the Federal Civil Rights Act.  The investigator should review whether or not
the Bar Counsel acted appropriately in committing the assets of the KBA to the defense of an investigation which failed to be supported by a finding of the
Inquiry Commission.  The investigator should advise the Board as to whether or not this first amendment case could have been dismissed with an apology by the Bar Counsel.  The Investigation should look closely for any
possible instances of the inappropriate use of Bar assets.

q. The investigation should study the recommendations of the American Bar Association Center for Professional Responsibility on how state bar associations should  “build walls” between the Ethics
Prosecutors and the Trial Commissioners and Board of Governors when acting in their judicial capacity.  The vast majority of states  have an independent Board of Ethics Commissioners to review the conduct of the ethics
prosecutors.  The investigation should examine the possibility that an ethics discipline structure similar to Ohio’s might provide a template for Kentucky to follow.  The KBA could well
serve the Bar by requesting that the Supreme Court consider reforms to allow the imposition of checks and balances in the ethics process in Kentucky.

3. Once the outside independent investigator has completed, his/her report, it should be disclosed to the  Board of Governors, the Kentucky Supreme Court, to the public, posted on the KBA web site, and delivered to the U.S.
Attorney’s Office and the Franklin County Commonwealth Attorney.

RULES CHANGES THAT SHOULD BE CONSIDERED BY THE SUPREME COURT

We respectfully request that the Kentucky Supreme Court review the entire ethics prosecution mechanism.  The recent amendment of SCR 3.370(6) and (8) demonstrates that the Kentucky Supreme Court
is capable of quickly amending rules when they discover the existing rule is inappropriate or flawed in its application.

The Court should begin their review of the current ethics rules with an examination of  ”SCR 3.505 Character and Fitness Committee; reinstatements” which was last amended in 2004 . The rule as currently written allows the Bar Counsel to ignore the sanction imposed by the Supreme Court by objecting to an attorneys reinstatement after they have served the period of suspension ordered by the Supreme Court.
This rule allows the Bar Counsel to add at least four months to any period of suspension from the practice of law, since all suspended lawyers must apply for reinstatement, and if the Bar Counsel
objects to the reinstatement, a review process and final ruling can take 120 days.  This rule means that if the Supreme Court orders a 30 or 60 day suspension, the Bar Counsel may override
the judgment of the Supreme Court and add at least an additional four months of suspension.

Further this rule, at Section (4), places the burden of proof  on the attorney seeking reinstatement. “Section(4) The burden of proof of one’s good character and fitness to practice
law shall be on the Applicant.

Supreme Court members in 2004 have in effect delegated the final authority over the sanctioning of lawyers to the discretion of the Bar Counsel, even in cases where the period of suspension  adjudged by the Supreme Court was less than 180 days.  In criminal law the prosecutor is not allowed to increase the penalty of the trial court.

We would request that the Supreme Court review the changes in the 1990 version of the Supreme Court ethics rules, which reduced the standard of proof required to sanction an attorney from the previous “clear and convincing’ evidence standard, to a “preponderance of the evidence” standard.  The attorney discipline process has been described in an appellate decision as being “quasi-criminal” in nature.  The “beyond a reasonable
doubt” evidence standard which applies to criminal cases is not applied in attorney discipline matters. Instead the civil standard of “a preponderance of the evidence” is applied in ethics prosecutions of
lawyers.  Other states require that the standard of proof must be “clear and convincing”. While the burden of proof is placed on the Bar Counsel, in the reinstatement application process,
the burden of proof is shifted to the defendant attorney.  We know of no other state that gives more power to the ethics prosecutor than does Kentucky.  We note that in prison inmate prosecutions
for violation of prison discipline rules, the standard of proof is “some evidence”.  If appears that this “some evidence” rule is sufficient to sanction a Kentucky lawyer.  Many times the Trial Commissioner is
presented with “he said /she said” factual situations, and most of the time the lawyer loses.

The court should examine rules of confidentiality that are interpreted by the Bar Counsel to deny access to information by the public and to refuse discovery requests of defendant lawyers.

When a lawyer’s conduct places the risk of great financial harm to his clients, public disclosure of allegations would be in the public’s interest.  The confidentiality rules should not be
applied to keep potential victims of a lawyers conduct in the dark. When there is a chance that public disclosure of pending ethics charges would prevent harm
to clients, the Bar should make the protection of  the client the primary consideration.  We note that Great Britain and New Zealand have taken the attorney discipline process away from their Bar Associations and
placed said duties in a Consumer Protection Office.  The entire ethics process should be focused first on the protection of the consumers of legal services.

The Supreme Court should review suggestions by the ABA Center for Professional Responsibility to “build walls” between the judicial body and the prosecutorial officials in ethics prosecution cases.   (We have read one report where the State of Montana concluded that it was necessary to totally remove the ethics prosecution office from the same building in which the Bar administrators were housed, in order to limit the appearance of ex parte communications.)

If any review of the current rules regarding the discipline of attorneys is conducted, it should consider that attorneys should not be sanctioned for merely defending themselves.  Attorneys should not be
threatened with ethics prosecutions by the Bar Counsel, for arguments they made in court. The Supreme Court rule which grants “absolute immunity” to the Bar Counsel’s office, if amended to provide the same level of immunity
granted to criminal prosecutors, i.e. “qualified immunity”, would better serve the interests of justice. The “qualified immunity” burden is no higher a burden than the burden currently placed upon the shoulders of criminal prosecutors.

It would be in the best interest of the Bar and the public, if the Supreme Court would clarify the rules to recognize that any attorney has the right to seek review of his/her claims of constitutional rights violations by the Bar Counsel by filing their claims in Federal Court.  It would be in the best interest of the Bar for every attorney to have the right to pursue all remedies in behalf of his defense, without fear of retaliation.  Surely, defending one’s self is not an ethical violation.

The interest of justice would be well served if the Supreme Court rules allowed Civil Rule 11 sanctions to be imposed against the KBA, when their employee the Bar Counsel, violates the Supreme Court Rules or the Civil Rules by bringing
frivolous charges or by conducting improper investigations of lawyers.

The Supreme Court should examine the rules with consideration that the rules which express the levels of punishments that can be applied to a convicted attorney, should be weighted, in such a way that a minor procedural error by a lawyer would not result in the death penalty of permanent disbarment.  The classification of criminal laws allows a  range of penalties for “felonies, misdemeanors and violations,” but the current Supreme Court Rule allows the maximum penalty to be imposed for the most minor offense. Such a classification of penalties exists in criminal cases, and the  interest of justice, would be better served  if a classification system was applied to discipline sanctions.

The Supreme Court should consider a mechanism where all complaints against the Bar Counsel should be heard by a body independent of the Bar Counsel’s office.  (Other states have such a procedure to assure fairness in dealing with claims of misdeeds by ethics prosecutors.)

CONCLUSION

We make no suggestions or allegations that the Board of Governors has violated any rule or law.  We know of no such violations of duty by the Board of Governors. Their action in decisively dealing with the Bar Counsel,
strongly suggests their desire to right any wrongs which may have emanated from the Bar Counsel’s Office.

Having said that, we believe it would be in the best interest of the Board of Governors to rebuild the confidence of the 16,700 members of the Kentucky Bar Association, by authorizing  an independent investigation of the Bar
Counsel’s office.

We do not accuse anyone mentioned in this letter of any criminal action, or of any lack of integrity or qualifications for their office. We accuse no one of a rules violation. Those conclusions can only be made after a full and complete
investigation and after the due process rights or those involved are provided.

We have discussed numerous allegations which have been shared with us by members of the legal profession.  We only suggest that these allegations be investigated.  Only a court can formally prove the truth of falsity of these allegations.  We note that the Kentucky Supreme Court Rule 3.130 (8.2) has been interpreted to limit the right of an attorney from speaking truthfully about the conduct of “judicial officers”, and “public legal officers”.  This prohibition of first amendment rights of attorneys has allowed some officials to be protected from public examination of their actions. (Rule 3.130 (8.2) as interpreted by the Bar Counsel is currently on review before the 6th. Circuit Court of Appeals.)

No appointment of  a new Bar Counsel should be made until this investigation is published. The independent investigator should ask all of the 24 (now 23) employees of the Bar Counsel’s office, “What did you know about possible abuses of
attorneys rights, and when did you know it.”

The investigation should also invite the former Deputy Bar Counsel, who in 2011 resigned, to report the reasons he had for resigning from the Bar Counsel’s office.  His insight might be enlightening. We
currently have an attorney discipline process that virtually requires an attorney to have  a stable of lawyers with him at all times, just to guide him through the maze of vague ethics rules that have been allowed to be applied, or ignored, at the discretion of the Bar Counsel’s office.

Instead of focusing upon retraining and education of lawyers on how to comply with ethics rules, the Bar Counsel’s office has focused on harsh punishments and disbarment.
The concept of lawyers being able to seek out ethics guidance by submitting questions to the KBA is a meaningless process, since most ethics opinions issued by the KBA are not binding on the Bar Counsel’s office.

Therefore there is no real guidance and direction regarding ethics guidelines provided to members of the Bar.  Attorneys who have sought and obtained ethics opinions from the Bar Association, have relied on those opinions, and yet have
been investigated and sanctioned for relying on such advice.

More than a few members of the Bar who have been involved in practicing before the KBA in defense of lawyers charged with ethics violations, believe that the Bar Counsel’s office has conducted a rein of terror against the legal
profession.  It is time that sanctions be brought into line with the seriousness of the offense, and the rights provided to defendants in our trial courts should be applied to attorney discipline hearings.
Lord Action (1834-1902), is famously quoted in a letter to Bishop Creighton in l887: “Power tends to corrupt, and absolute power corrupts absolutely.”  We would paraphrase  Lord Action and suggest that
“absolute immunity of a public official, corrupts him absolutely.”
Respectfully submitted,
/s/
Judge Stan Billingsley (Ret.)

314
7th. St.

Carrollton, Ky. 41008
/s/

Hon. Lawrence Forgy
Frankfort, Kentucky

 

(Comments may be forwarded to Stan Billingsley at Firstjudge@aol.com
)

U.S. ATTORNEY SEEKS RECOVERY OF FUNDS ANGELA FORD SEIZED FROM FEN PHEN ATTORNEY DEFENDANTS. KBA Bar

Tuesday, November 29th, 2011

Nov. 29, 2011   By LawReader Senior Editor Stan Billingsley

LawReader has reviewed correspondence between the U.S. Attorney’s office and Angela Ford in which the U.S. Attorney’s office has sought an accounting of $43,000,000 in funds
held by Angela Ford.  These letters are exhibits in the record of the Federal Criminal trial against Gallion and Cunningham.  The criminal convictions of Gallion and Cunningham are currently on appeal to the 6th. Circuit Court of
Appeals.

We have found a 2009 news story by Andy Wolfson of the Courier Journal quoting Angela Ford as saying at that time she had been paid $7.5 million for attorneys fees, but that
she shared this fee “with other lawyers“.  These funds came from her seizure of the assets of the Ky. Fund for Healthy Living.   This fund contained $23 million.
It has apparently been disbursed two years ago.  The accounting sought by the U.S. Attorney would presumably list the names and amounts that “other lawyers”
received from this distribution and a total distribution of $43 million.

 

In a letter to Angela Ford, dated Feb. 16, 2011 the U.S. Attorney’s office warned her that:

“Since the judgment (i.e.Boone Circuit Court summary judgment) has been reversed and remanded to the Boone Circuit Court, any funds collected in the
state court case are now potentially subject to being reclaimed by the defendants pending further litigation. ”

“Therefore, it is essential that the government be given a complete accounting of all funds distributed, held in escrow for the benefit of the victims, retained or
distributed pursuant to fee agreements, or otherwise held. Since time is of the essence, we hope that you can provide this accounting expeditiously.”

“The authority for holding collected funds in the state case presumably lapsed upon reversal of the judgment.”

“We want to continue to work with you to protect the victims of the defendant’s crimes and advise the court that all appropriate steps are being taken to preserve
assets that will be used to compensate victims for their loss.”

In the letter to Ford, dated March 23, 2011 the U.S. Attorney’s office referring to Ford’s response to the U.S. Attorney letter of Feb. 16, 2011 requesting an accounting:

“…you have provided  brief email responses indicating that defendants in the civil case will have to sue individual victims to recover money that was collected on the reversed judgment. ”

(LawReader: The forgoing sentence was apparently a reference to the effect that if Gallion et al won the civil case at the new trial ordered on Feb. 4, 2011 by the Court of Appeals, that Anglea
Ford argues that Gallion et al could sue the some 440 (??) Fen Phen plaintiffs to recover their assets  she had distributed to them without the support of a valid court judgment.)

The U.S. Attorney’s office continued:

“…it may be appropriate to bring the recent developments to Judge Reeve’s attention, but we thought a discussion with you would better inform our future decisions.
Should you disagree, we will put this matter before the Court for its guidance.”

The U.S. Attorney’s office then cited five cases which had held that once a judgment was set aside on appeal it had no legal effect, and could not support
her right to hold any of the funds or to disburse any funds to her clients:

Under Kentucky law, when a judgment is reversed on direct appeal, it is as though it never existed. Clay v. Clay, 707 S.W.2d 352, 353 (Ky. App. 1986). As the Kentucky Supreme Court of
Kentucky stated in a recent opinion, “(i)t has long been the law in Kentucky that the complete reversal of a judgment nullifies it and returns the parties to the positions they occupied before it was rendered…and the could
should not allow th party who procured (the judgment) to retain an advantage gained by reason of it.”
See Marshall v. Goodwine, 2010 WL 3374404 (Ky. 2010); see also Knight’s Admr. V. Illinois Central Railroad Co. 136 S.W. 874
(1911); Drury v. Franke, 57 S.W.2d 969 (1933); Baker’s Heirs v. Duff, 238 S.W.2d 841 (Ky. 1951) (no rights can be derived from a reversed judgment).”

“…the party who executes on the judgment during the pendency of an appeal does so at her own risk because, if the judgment is reversed, any benefits obtained by virtue of the execution must be restored to the adverse party. Elk Horn Coal
Corporation v. Cheyenne Resources, Inc., 162 S.W. 3d 408 (Ky. 2005).”

We have found no legal authority which would allow you to retain the funds you have collected when the judgment has been reversed. ” “…you
cannot continue to collect on a judgment that is no longer in existence, you cannot justify continuing to hold collected funds without providing an
accounting to the sole judgment creditor or obtaining an order of the court.”

“If we have not heard from you by March 29, 2011, we will file our motion with the court.”

Angela Ford responded on March 29, 2011 with a letter contesting the U.S. Attorney’s office understanding of the law:

“…you state that “(a)lthough (the civil case plaintiffs) have filed a motion for rehearing with the Court of Appeals, at present time the judgment remains
reversed(.)” This is incorrect. The judgment entered by the Boone Circuit Court stands unless and until the Kentucky appellate courts render a final
opinion vacating or reversing it. Plain, unequivocal black letter Kentucky law provides that “any reliance on a non-final opinion of an appellate court
is misplaced.” Kohler v. com. Transp. Cabinet_, 944 S.W.2d 146, 147 (Ky. Ct. of Appeals 1997; see also_Kentucky Nat. ins Co. v. Shaffer_, 155 S.W. 3d
738, 740 n5 (Ky.Ct. App. 2004) (chastising party for citing as authority opinion that was “not final due to pending motion for discretionary review
in the Supreme Court”)  (See LawReader footnotes below for review of Ford’s authorities)

“I am not aware of any procedural rule or authority that would compel me to restore those funds to your office.”

Subsequent to Ford’s letter to the U.S. Attorney’s office, they kept their promise and filed a motion for an accounting
with Federal Judge Danny Reeves.  Reeves granted the government’s motion and ordered an accounting.  Ford sought relief in the 6th. Circuit Court
of Appeals, but last week the 6th. Circuit denied her motion to avoid having to file an accounting.

LawReader has learned that the accounting is currently in the possession of the U.S. Attorney and “is being worked on”. LawReader’s request for a copy of the accounting has not been granted
at this time.

This correspondence raises several questions.  In light of the actions by the U.S. Attorney’s office that began at least by December of 2010. The U.S. attorney objected to a judicial sale of William Gallion’s home in Jessamine County in which Ford used clients escrow money to purchase the home.  The Jessamine Circuit Judge set aside the judicial sale, and later the U.S. attorney resold the home.  (In Ford’s March 29, 2011 letter she criticized
the U.S. Attorney’s office handling of the sale.)

The Jessamine County sale and purchase of the Gallion home with client’s money was quickly acted upon by the U.S. Attorney’s office.  We must ask, where was the KBA
Bar Counsel’s office?  Stories were in the press regarding the sale of Gallion’s home.
LawReader read such a news story and called the Master Commissioner of Jessamine to confirm the story. One phone call confirmed the story!  The U.S. Attorney’s motion is a public
record.  Where was the Bar Counsel’s office?

The U.S. Attorney has sought an accounting from Angela Ford. We have not heard of any action by the Bar Counsel’s office to support the U.S. Governments motions.
Where was the Bar Counsel’s office?

There are confidentiality rules of the attorney discipline process which hide all charges from the public unless the defendant attorney waives the confidentiality rule.

We emphasize that we have no knowledge of any such pending action by the KBA against Angela Ford.  The secrecy rules forbid the public from
knowing when charges against an attorney are pending.  But this raises the question of why the Supreme Court Rules regulating the discipline of attorneys protect the
attorney’s reputation at the risk of harm to the clients?

Secondly, the main stream media has enjoyed almost a decade of condemning everyone connected with the Fen Phen case.  Perhaps the actions of the U.S. Attorney’s
office will encourage the press to dig a little deeper.

They can begin getting this story right by seeking a copy of the Ford Accounting which is currently “being worked on” by the U.S. Attorney’s office.  We suggest that the main stream media, “Follow the money!” The accounting may answer many questions.

If the confidentiality rules are being applied to this case by the Bar Counsel, then this demonstrates why such rules do not serve the public interest. The consumers of legal services should be protected by Bar Rules.

Footnotes – Examination of Ford’s authorities:

1. Kohler v. Com. Transp. Cabinet_, 944 S.W.2d 146, 147. LawReader comment: For god’s sake this is a DUI case!  It is a criminal case and deals with a judgment that was “void ab initio”  i.e. void from the beginning..and the
defendant cited another unrelated non-final case as authority.  The defendant cited an unofficial (unpulbished) and unrelated case, but in the Ford case, the U.S. Attorney correctly cites the effect of a ruling on the
specific case being tried.  Once the Court of Appeals reversed the Boone Circuit Court the reversal was effected.  The judgment of the Court of Appeals against Ford’s position is in effect until overruled.  Ford’s citation of the rule prohibiting the citation of an unpublished case simply does not support her argument.

2. Kentucky Nat. Ins. Co. v. Shaffer, 155 S.W.3d 738 (Ky. App., 2004).  This authority cited by Ford deals with a bad faith insurance claim.  Footnote No. 5 to that decision reads: . In its reply brief, Kentucky National relies on our recent
opinion in Knotts v. Zurich Ins. Co., ___ S.W.3d ___, 2002-CA-001846-MR, 2004 WL 221213 (Feb. 6, 2004), which held Kentucky’s UCSPA only applies to pre-litigation claims and conduct. According to Knotts, once litigation
has commenced, the UCSPA no longer plays a role, but instead the Rules of Civil Procedure provide “redress for improper conduct of litigants.”  However, Kentucky National cannot rely on Knotts as it failed to
preserve this issue at the trial court level. Furthermore, although the Knotts opinion was designated for publication, it is not final due to pending motion for discretionary review in the Supreme Court. It is impermissible to cite Knotts
as authority. See CR 76.28(4)(c) (unpublished opinions “shall not be cited or used as authority in any other case in any court of this state”); Kohler v. Commonwealth, Transp. Cab.,
Ky.App., 944 S.W.2d 146, 147 (1997) (trial court cannot rely on nonfinal opinion of appellate court).

Ford does not mention in her letter to the U.S. Attorney that both of her authorities cited, dealt only with unpublished cases. She failed to mention that the Court of Appeals ordered that their reversal of Abbott v.
Gallion et al, should be published on Feb. 4, 2011.   (See LawReader  synopsis of Court of Appeals decisions for Feb. 4, 2011. )

A published case by the Court of Appeals remains in effect until overruled.  A dismissed case remains overruled until an appeal reversals the Court of Appeals.

************
Conclusion, the U.S. Attorney’s office scores big in its authorities.  Ford fails embarrassingly to support her claim that the reversed Boone Circuit Court case
provides authority for her to seize and distributed $42 million dollars.

 

BIG LAW FIRMS ARE OUTSOURCING LEGAL WORK TO INDIA!

Saturday, November 26th, 2011

ABA
August 2008 Issue | Volume 34 Number 5| Page 47

http://www.americanbar.org/publications/law_practice_home/law_practice_archive/lpm_magazine_articles_v34_is5_pg47.html

OUTSOURCING SPOTLIGHT – Outsourcing Legal Services Abroad
By K. William Gibson
________________________________________
A Time magazine headline screams “Call My Lawyer … In India.” Legal Affairs asks “Are Your Lawyers in New York or New Delhi?” A recent New York conference offers “Effective Strategies for Managing Offshore Outsourced Relationships.” The largest American and European law firms are setting up shop in India, the Philippines and elsewhere, or sending higher and higher levels of legal work to outsourcing companies in those countries. Why is all this work going overseas? Clients are tightening their belts and want their law firms, regardless of their size, to look for cost-saving strategies as well. Whether you want to get in the outsourcing game or not, understanding how the game is played will help you navigate in the times ahead.
Until recently, discussions about the outsourcing trend in the legal community took place mainly online, particularly among bloggers. But with the subject having moved beyond the blogs to Time and other mainstream media such as the Wall Street Journal and the New York Times, it appears that the “trend” has morphed into a full-blown phenomenon.
How big of a phenomenon is it? According to ValueNotes, an Indian research company that tracks legal process outsourcing, revenue from legal services outsourcing in India alone is slated to grow by almost a half-billion dollars by the decade’s close—from $146 million for the calendar year 2006 to $640 million by the end of 2010. The industry employed around 7,500 people in the legal offshoring space in India as of year-end 2006, and that number is expected to reach 32,000 by the close of 2010.
But what exactly is legal outsourcing and the market realities behind it? Let’s take a look.
Process, Parameters and Drivers: An Overview
According to attorney Ron Friedmann, formerly of Prism Legal Consulting and now working with Integreon, a legal process outsourcing company, “Outsourcing refers to using any third party to provide services previously provided by full-time employees.”
Outsourcing may be done domestically or the work may be sent overseas. The term offshoring is often used to refer to outsourcing to a non-domestic provider. Friedmann also describes a variation, known as insourcing, a term for “shifting work to an owned-and-operated facility that is centralized and physically separate from the rest of the organization.”
Outsourcing of legal services involves a mix of domestic outsourcing, sending work offshore to be done by third-party contractors, and sending work offshore to be done by overseas employees of the law firm that is sending the work. Law firms, particularly large ones in high-cost locations such as New York City, often outsource to lower-wage domestic locations within the United States by setting up facilities or sending work to third parties. That kind of outsourcing doesn’t generate headlines, though.
The newsworthy side involves work that is flowing to low-wage regions in Asia, such as India, Bangladesh and the Philippines. Why these countries? For one thing, they have educated, English-speaking workforces. But U.S. law firms, and corporations for that matter, would not be tapping into those countries’ workforces if there also weren’t opportunities for significant cost savings. Those cost savings result, not surprisingly, from the fact that the workers in these offshore countries get paid a fraction of what American workers get for the same work.
Other market realities factor in as well. U.S. corporations that historically have given their legal work to U.S. law firms are now sending that work offshore—and some corporate legal departments have gone so far as to set up their own operations overseas or to establish direct relationships with -Indian law firms. In the bargain, the corporations are demanding reduced rates for the work that they are not sending overseas. That, of course, puts more pressure on U.S. firms to find ways to get work done for those clients at a lower cost. In response, U.S. law firms are now outsourcing everything from office support services to high-level legal work. ValueNotes’ most recent study focuses on eight broad segments:
▪ Legal transcription
▪ Document review
▪ Litigation support
▪ Legal research
▪ Intellectual property
▪ Contract-related services
▪ Secretarial and legal publishing services
And there’s no shortage of providers wanting to take that work. Indeed, an Internet search on “legal outsourcing” will generate advertisements from a very long list of law firms and legal process outsourcing companies in India and elsewhere, all ready and willing to handle everything from low-level clerical work to high-level patent application processing.
In addition, recent changes in federal rules regarding high-volume litigation seem to have spurred an increase in work flowing overseas. In the April 3, 2008, Time magazine article, “Call My Lawyer … In India,” Suzanne Barlyn writes that recent amendments to the Federal Rules of Civil Procedure regarding electronic discovery are “boosting momentum” in legal outsourcing because document review costs “about $1 per page in India but can range from $7 to $10 per page in the U.S.” The same article quotes the general counsel of -Chicago-based company TransUnion as saying that “Indian attorneys are currently reviewing more than a million litigation e-mails for the company, which costs less than $10 per hour.”
Who’s Leading the Developments
Not surprisingly, the short answer to the question of who’s turned the trend into a phenomenon is the large U.S. and international law firms and their corporate clients. The reasons are many, but it essentially boils down to the fact that they have the critical mass to justify the time and expense of everything necessary—from selecting and developing relationships with outsourcing companies, deciding what work will be outsourced, setting up systems and procedures to coordinate the work-flow processes, and setting up the technical infrastructure (both at home and abroad) to support the flow of information and documents.
Of course, even among firms of big size and scale, there are those that remain reluctant to outsource any of their work processes, much less outsource that work to foreign countries. And among the firms that do outsource work overseas, there are some that don’t want anyone to know that they are doing so.
“A challenge for us as a legal outsourcing provider,” Friedmann says, “is that our customers don’t want to go on record. Most will serve as references late in the selling cycle in a peer conversation with our prospective client law firms. We see signs that firms are becoming more open, though—for example, firms that have freely talked to the press about their outsourcing or offshoring.”
Unlike some firms that don’t want to talk about their outsourcing, Clifford Chance, which is one of the largest international firms, acknowledges its use of alternate ways to get work done. According to Sally Fiona King, chief operating officer for the firm’s Americas region, Clifford Chance uses a “follow the sun approach.” That approach includes a “mixture of onshoring, offshoring and outsourcing,” with all hubs using “consistent processes, templates and house styles.”
The Clifford Chance approach to outsourcing is elaborate and comprehensive. King reports that in 2007 her firm “formed a Global Shared Service Center in Delhi, India.” This facility is a “Clifford Chance facility—with, importantly, our employees—and built at our speed,” King says, adding that the facility “helps us consolidate some global functions and improves our efficiency and business continuity capability.” By setting up its own facility, King says that her firm must deal directly with issues such as “recruitment, motivation, training, language, and maintaining the feel of one firm. However, we already do that in 20 countries, so India is just another part of our global expansion.”
According to King, for many industries shifting work to India means dealing with stateside implications, such as reduction in staff, retention issues and morale. However, Clifford Chance’s existing global footprint and single-firm approach has helped ease those burdens for the firm. “I think we’ve benefited enormously from the fact that our offices in New York and Washington have been working with colleagues in London, Hong Kong, Moscow and so on for some time. Adding another office in India is just the latest step in our efforts to … improve the legal services we provide to our worldwide clients.”
Some of the services Clifford Chance’s Indian operations provide include IT applications deployment, packaging, online services and IT administrative tasks, as well as invoice payments and expense payments and processing. King reports that the firm plans to outsource additional accounting functions this year, including “reporting and month-end close.”
Clifford Chance also outsources some of its document production requirements to an outsourcing firm in Mumbai, India (formerly Bombay). The firm has hubs in New York and London that are operated by Clifford Chance employees and housed in its offices; these hubs work in concert with the hub in Mumbai. What’s been most essential to making these operations flow? “I believe communication has been the key to our efforts in India,” says King. “It is important to obtain partnership buy-in and support, and open and honest communication is critical.”
Who Else Is in the Game, and How They’re Playing
Of course, not all outsourcing efforts are as elaborate and expansive as those undertaken by Clifford Chance and other big firms. And yes, there are even opportunities for midsize and smaller firms to get in the game and reduce certain costs through outsourcing—and some are doing exactly that. Maryland lawyer Richard Granat is one example.
Granat operates a solo “virtual” law firm and is also the president of Epoq US, a Web-enabled document assembly software company. He has used temporary paralegals for many years to do a variety of legal support tasks, from automated legal support to estate tax forms. Today he’s using a firm in India that is staffed with graduate attorneys to do some of that work for both of his businesses.
“Through my virtual law firm operation,” he says, “I have used an Indian firm to do legal analysis for clients that I’m working with, and the results have been excellent—and it costs about 50 percent less than the cost of a U.S. paralegal. Since the person doing the work is an attorney trained in English common law, the quality of the work is often better.” And he’s getting similar results for the Epoq legal software company, using the same group in India to help automate documents.
“We’ve also assigned basic legal research,” Granat says, “as in compiling statutory materials on a particular subject for every jurisdiction. This work has been excellent and our cost is about $12 an hour, and that cost includes the cost of online legal research services. This cost is less than it would cost [to have the work done by] a U.S. law student, and the work is more reliable.” While he feels more hesitant about sending more specialized legal services overseas at present, he does foresee an expansion in how smaller U.S. firms will use the Indian outsourcing firms to serve their needs and increase their efficiency going forward. (See the sidebar on page 53 for more. Also see the page 50 story for a midsize firm’s experience in using outsourcing.)
So how would a firm proceed in embarking on outsourcing to an offshore company? Many that are outsourcing work are doing so through third-party legal process outsourcing (LPO) firms, such as the one that Ron Friedmann works with—and the LPOs come in multiple sizes and flavors, like law firms themselves, so there are choices for firms of all sizes. The LPO hires the employees, secures the facility and sets up the work processes. U.S. firms thus avoid the higher costs of running their own operations in whatever area—although clearly the U.S. law firms may not have as much overall control over the operations and processes as they would if the workers and the facilities were their own.
To date, the growth in legal outsourcing has largely been in the moving of back-office operations. But as they grow more comfortable with sending tasks such as information technology and accounting overseas, some firms are moving to outsourcing not only for work that is done by support staff, but for higher-level work that has always been done by the firm’s domestic attorneys—both associates and partners.
It seems that once firms find that they can outsource repetitive clerical and support tasks done by lower-wage domestic employees, they begin to look for ways to outsource work being done at home by their higher-salaried technicians and professionals, including the lawyers. In fact, LPOs firms often “get their foot in the door” by working on clerical tasks. Once they establish a successful relationship with the U.S. law firm, they are then in a position to “sell up.”
However, as ValueNotes CEO Arun Jethmalani points out in her company’s report Offshoring Legal Services to India, “While most vendors start by offering lower-value services and gradually move up the value chain by demonstrating domain skills and gaining client confidence, there are others who focus on specific high-end services or niches.” Adds the report’s co-author Neeraja Kandala, chiming in on the service areas that are going to increase: “High-volume services like document review, e-discovery, legal publishing, as well as niche areas in intellectual property and contract services, will drive future growth in legal services offshoring,” she predicts.
Enter the Regulators
Not surprisingly, with the increase in outsourcing, bar associations and other regulatory agencies have begun to look at the ethics issues involved. Among those weighing in to provide some guidance to lawyers about outsourcing legal work are bar associations from Los Angeles and San Diego to Florida and New York. Most of the ethics opinions address issues such as when a lawyer must advise a client that the client’s work is being outsourced, as well as issues relating to fees that may or may not be charged to clients for work that is being done elsewhere.
In 2006 the ethics committee of the New York City Bar was among the first to issue a formal opinion on outsourcing. The question was whether a New York lawyer may “ethically outsource legal support services overseas” to either a “foreign lawyer” or “a layperson” and, if so, what ethical considerations must be addressed. The opinion says that “outsourcing is ethically permitted” and then lays out a list of conditions and ethical considerations, including the obligation to supervise the people doing the work, to advise the client (and get the client’s permission) when the work is being outsourced, and to have a conflicts-checking system in place.
The New York City Bar also went a step further, weighing in on the “duty to bill appropriately for outsourcing overseas” by saying that “absent a specific agreement with the client to the contrary, the lawyer should charge the client no more than the direct cost associated with outsourcing, plus a reasonable allocation of overhead expenses directly associated with providing that service” (citing ABA formal opinion 93-379 (1993)).
Billing is also among the issues covered in a proposed advisory opinion on outsourcing from the Florida Bar’s ethics committee, which was affirmed by the committee in January of this year. That opinion covers a range of other issues as well, including the unauthorized practice of law, conflicts, supervision and confidentiality.
To what extent this and other ethics opinions in various jurisdictions may put a damper on outsourcing—particularly by limiting firms’ ability to improve the spread between what they pay for services and what they charge their clients—isn’t yet clear. For today, though, as indicated by the numbers cited earlier, the outsourcing movement keeps picking up steam.
What Waits in the Times Ahead
So where might things go from here? More growth in outsourcing may well result from the financial challenges that law firms are facing currently and will continue to face during the next several years. Consider how economic downturn results in lower revenue for many types of practices, and this at a time when clients are putting even more pressure on billing rates and overall legal expenses. Combine that with higher costs of doing business (including first-year associates making $165,000 at the largest domestic firms) and the idea of shipping work elsewhere to be done at lower cost begins to sound appealing.
Many of the big players are already in the game. But just when and how other firms will approach the idea of sending work overseas remains to be seen. We’ll simply have to stay tuned.
About the Author
K. William Gibson is a personal injury lawyer and arbitrator in Clackamas, OR. He is a member of the Law Practice Editorial Board and is leading a delegation of lawyers to India in November to explore the issue of legal services outsourcing.

REINSTATEMENT OF LAWYER AFTER ANY SUSPENSION BY KBA, REQUIRES APPROVAL of Character and Fitness Committee

Friday, November 25th, 2011

In 2004 the Ky. Supreme Court adopted a SCR that delegates their power to sanction an attorney back to the Bar Counsel and the Character and Fitness Committee.

The Bar Counsel can oppose and delay any reinstatement for lawyer who has been suspended ….This rule applies even to all suspensions from 1 day to 180 days. In any event the
Character and Fitness Committee is delegated the right to overrule any suspension sanction of the Supreme Court.

Everyone who is suspended may be subject to an additional 60 days before a hearing, and an additional 60 days while the Character and Fitness Committee rules on the application for reinstatement, if
the Bar Counsel opposes reinstatement
.

This effectively means that any sanction involving a suspension by the Board of Governors and Supreme Court has the potential of being a permanent disbarment.

Even a one day suspension, could become a permanent disbarment!  Pursuant to SCR 3.505 anyone who is suspended must file an application for reinstatement with the Character and Fitness Committee.

This procedure can take up to four months.  If the suspension is from 1 day to 180 days the Bar Counsel has the right to oppose the reinstatement.

This action by the Bar Counsel, can easily add 120 days additional suspension before the Character and Fitness Committee has to issue a final ruling.  Of Course the Committee can deny reinstatement even though the Supreme Court has ordered a sanction of less than 180 days. Therefore, the Supreme Court doesn’t really decide what sanction is to be imposed on a lawyer.

The Bar Counsel and the Character and Fitness committee working together can permanently disbar an attorney even though the Supreme Court ruled that the suspension should be only 1 day.  This Rule allows the Bar Counsel to overrule
the final judgment of the Supreme Court.

One trick the Bar Counsel’s office has used  is to file a new charge against a lawyer after he has been sanctioned on a prior charge.   They then can use the claim of “pending new charges” to overrule the sanction of suspension imposed by the Ky. Supreme Court.

One troubling provision of the reinstatement rule, is that the defendant attorney seeking reinstatement after serving the sanction imposed by the Board of Governors and the Supreme Court, bears
the burden of proof to prove his qualification for reinstatement.

The rule clearly shifts the burden of proof on the lawyer’s back.
Section(4) “The burden of proof of one’s good character and fitness to practice law shall be on the Applicant. “
SCR 3.505 was adopted by the Ky. Supreme Court in 1990. One must wonder if the current Supreme Court understands that they have surrendered final authority over the sanctioning of lawyers.

SCR 3.505 Character and Fitness Committee; reinstatements

(1) The Character and Fitness Committee created by SCR 2.040 shall, in addition to the powers and duties conferred in that rule, consider all applications for reinstatement to the practice of law
by persons who
:

(a) have been suspended for more than one hundred eighty (180) days; (b) have been suspended for one hundred eighty (180) days or less, BUT WHOSE REINSTATEMENT HAS BEEN OPPOSED BY BAR
COUNSEL.

(2) The Character and Fitness Committee may act upon the application and such investigative material as it may gather or Bar Counsel may tender to it, all of which information not submitted by the Applicant shall be made available to the Applicant

(3) The Applicant or Bar Counsel shall have the right to a hearing before the Character and Fitness Committee prior to the issuance of its decision. The hearing shall be held within sixty (60) days
from the request. The report of the Committee shall be filed within sixty (60) days of receipt of the transcript of hearing.

(4) If either party requests a hearing before the Character and Fitness Committee, the Applicant shall have the rights accorded a Respondent in a disciplinary proceeding
pursuant to SCR 3.300, except that the Character and Fitness Committee shall hold the hearing rather than a Trial Commissioner. The burden of proof of one’s good character and
fitness to practice law shall be on the Applicant.

HISTORY: Amended by Order 2003-4, eff. 1-1-04; adopted by Order 98-1, eff. 10-1-98

BAR COUNSEL’S HUSBAND ADVERTISED HIS EXPERTISE IN MASS DRUG TORT CASES IN 2007

Wednesday, November 23rd, 2011

 

In 2007 Rosenbaum & Rosenbaum P.S.C. of Lexington, posted on their web site an advertisement touting their expertise in “Mass Tort Drug Litigation” one of the drugs listed on their web
site on which they offered to provide “more information” listed the drug Fen Phen.
In 2007 the Federal Fen Phen case had been completed. The State case filed by Gallion et al had terminated, and the only Fen Phen case in Kentucky that we are aware of in 2007, was Angela
Ford’s lawsuit on behalf of some 430 Fen Phen clients to seek damages against Gallion, Cunningham and Mills for alleged overpayment of legal fees.  The Rosenblum firms website did not advertise
their expertize in tort drug litigation in 2006.

This invitation for Fen Phen clients on behalf of Rosenbaum & Rosenbaum become more interesting when it is understood that R. Leslie Rosenblum, of Rosenblum and

Rosenblum, is the husband of former KBA Bar Counsel Linda Gosnell.

In 2003 Linda Gosnell became Bar Counsel and chief ethics prosecutor for the KBA. She prosecuted KBA charges against Gallion, Cunningham, Mills, Chesley, Helmers, and Judge Bamberger all
related to the Fen Phen case.

These are a few dots….when the U.S. attorney releases the Angela Ford accounting of her disbursement of funds…(if he does) ….more dots may or may not connect .
Angela Ford in an interview with the Cincinnati Enquirer today denied that the firing of Linda Gosnell was related to “Fen Phen”. Technically that is not a complete denial. Margaret Keene,
President of the Ky. Bar Association has denied that Gosnell was fired due to revelation of a “distribution list” in the Angela Ford accounting.

There are two ways this can be resolved. Either Angela Ford or the U.S. Attorney’s office release the Ford accounting (including a statement of all persons she made payments to) , or the
KBA Board of Governors reports to the public why they fired Linda Gosnell.

The public, and particularly the 430 clients represented by Angela Ford in her Fen Phen claim, have the right to know their potential liability for having to return any money paid
to them by Angela Ford.

Both the criminal action against
Gallion et al, is on appeal, and the Boone Civil Case has already been remanded
for a new trial, and only Ford’s appeal to the Ky. Supreme Court is delaying
the retrial in Boone Circuit Court. If the new trial order of the Court of
Appeals is upheld, then there is a possibility that any monies seized by Angela
Ford will have to be repaid.

Any suggestions that a new trial
could not possibly result in an order for Ford to return the $42 million to
Gallion et al, are speculative.

Let’s all wait for the final judgment to see who is entitled to that money.
Apparently Angela Ford has not waited, and has distributed money to herself and
her clients, even though she

has no final judgment authorizing such payments.

Suggestions that the Federal
Criminal conviction of Gallion et al , will still support the seizure of Gallion’s
et al assets, regardless of what happens in the Boone Civil Case, is
speculative, due to the fact that case is on appeal to the 6th. Circuit.

 

SUPREME COURT ALLOWS FIVE LAWYERS TO QUIT KBA MEMBERSHIP

Wednesday, November 23rd, 2011

SUPREME COURT ORDERS PERMITTING WITHDRAWAL OF FIVE MEMBERS OF the KBA – NOVEMBER 4, 2011

 

ELIZABETH A MCCLANAHAN

MICHAEL ROBERT RIVERS

JEFFREY BENJAMIN SVEHLA

RONALD LEE CROPPER JR

J. WILLIAM ST. CLAIR

Bar Counsel’s Husband Advertised Expertise in Mass Tort Drug Litigation

Tuesday, November 22nd, 2011

In 2007 Rosenbaum & Rosenbaum P.S.C. of Lexington,  posted on their web site an advertisement touting their expertise in “Mass Tort Drug Litigation”  one of the drugs listed on their web site on
which they offered to provide “more information” listed the drug Fen Phen.

In 2007 the Federal Fen Phen case had been completed. The State case filed by Gallion et al had terminated, and the only Fen Phen case in Kentucky that we are aware of in 2007, was Angela Ford’s lawsuit on behalf of
some 430 Fen Phen clients to seek damages against Gallion, Cunningham and Mills for alleged overpayment of legal fees.

This  invitation for Fen Phen clients on behalf of Rosenbaum & Rosenbaum  become more interesting when it is understood that R. Leslie Rosenblum, of Rosenblum and
Rosenblum,  is the husband of former KBA Bar Counsel Linda Gosnell.

In 2003 Linda Gosnell became Bar Counsel and chief ethics prosecutor for the KBA.  She prosecuted KBA charges against Gallion, Cunningham, Mills, Chesley, Helmers, Lawrence, and Judge Bamberger all related
to the Fen Phen case.

These are a few dots….when the U.S. attorney releases the Angela Ford accounting of her disbursement of funds…(if he does) ….more dots may or may not connect .

Angela Ford in an interview with the Cincinnati Enquirer today denied that the firing of Linda Gosnell was related to “Fen Phen”.  Technically that is not a complete denial.  Margaret Keene, President of the Ky. Bar
Association has denied that Gosnell was fired due to revelation of a “distribution list” in the Angela Ford accounting.

There are two ways this can be resolved.  Either Angela Ford or the U.S. Attorney’s office release the Ford accounting (including a statement of all persons she made payments to) , or the KBA Board of Governors
reports to the public why they fired Linda Gosnell.

The public, and particularly the 430 clients represented by Angela Ford in her Fen Phen claim, have the right to know their potential liability for having to return any money paid
to them by Angela Ford.

Both the criminal action against Gallion et al, is on appeal, and the Boone Civil Case has already been remanded for a new trial, and only Ford’s appeal to the Ky.
Supreme Court is delaying the retrial in Boone Circuit Court.  If the new trial order of the Court of Appeals is upheld, then there is a possibility that any monies seized by Angela
Ford will have to be repaid.

Any suggestions that a new trial could not possibly result in an order for Ford to return the $42 million to Gallion et al, are speculative.
Let’s all wait for the final judgment to see who is entitled to that money.  Apparently Angela Ford has not waited, and has distributed money to herself and her clients, even though she
has no final judgment authorizing such payments.

Suggestions that the Federal Criminal conviction of Gallion et al , will still support the seizure of Gallion’s et al assets, regardless of what happens in the Boone
Civil Case,  is speculative, due to the fact that case is on appeal to the 6th. Circuit.

UPDATE ON FIRING OF LINDA GOSNELL – LAWREADER SEEKS ANGELA FORD “DISTRIBUTION LIST” OF FEES PAID OUT OF FEN PHEN FUNDS

Tuesday, November 22nd, 2011

 
Nov. 22, 2011

Sources close to the KBA report that the distribution list in Angela Fords Fen Phen accounting ordered by U.S. District Judge Danny Reeves lead to the firing of KBA Bar Counsel Linda Gosnell.  Today it was reported that the KBA President Margaret Keane denied this report.   Release of the accounting to the public could answer this question.  LawReader is seeking a copy of the accounting.

LawReader has confirmed that Fen Phen plaintiff’s lawyer Angela Ford was ordered to provide an accounting to U.S. District Judge Danny Reeves by Nov. 9, 2011.  The accounting of her handling of clients funds was requested by the U.S. Attorney’s office.

In December 2010 the U.S. Attorneys Office obtained a court order from the Jessamine County Circuit Court setting aside the judicial sale of the home of Fen Phen defendant William
Gallion.  The U.S. Attorney’s Office alleged that Angela Ford bought the Gallion home with money she was holding in escrow for her clients.   The U.S. Attorney argued successfully that at least twelve of the client’s Ford was
holding money for were not her clients.

Several months ago the U.S. Attorney’s Office sought a motion for Angela Ford to provide an accounting of the $42 million dollars she was holding in escrow for her clients.;

Sources close to the Ky. Bar Association have reported to LawReader that the KBA Chief Ethics Prosecutor, Linda Gosnell, was fired on Monday Nov. 21,  as a result of information
contained in the accounting.  (Another source says the actual firing occurred on Saturday Nov. 19th.)

Gosnell’s name has been removed from the KBA website which previously listed her as KBA Bar Counsel.

The Clerk’s Office for the Eastern District of Kentucky (Covington) reports to LawReader that as of Nov. 22, 2011, Angela Ford has not complied with that court order to provide the accounting. The Clerk does not
have a copy of the ordered accounting. We are trying to get a copy of that accounting.

Another source reports that the U.S. Attorney’s office has a copy of that accounting and apparently shared the report with officials of the KBA.  The KBA reportedly fired Linda
Gosnell shortly after reading the distribution list of parties who received payment out of clients funds. Lawreader has requested a copy of this accounting from the U.S. Attorney’s office.

Any further action regarding the release of the financial accounting must be taken by Judge Reeves, or presumable by the U.S. Attorney’s Office.

It is reported from sources close to the KBA that the accounting contains a “distribution list” of persons who received payments from Angela Ford, presumably paid out of client’s money held in
escrow.

The money held by Angela Ford was seized by her after she obtained a summary judgment in 2010 in the Boone Circuit Court.   That summary judgment was appealed to the
Court of Appeals.  The Court of Appeals reversed the summary judgment, and Ford appealed to the Ky. Supreme Court where the decision is still being considered.

Under a ancient rule known to every lawyer, no payments may be made to a plaintiff until the case is final (the finality rule), and as of the present there is no final judgment in the Fen Phen cases.  It is reported by sources close to the Fen
Phen case that Angela Ford has distributed at least some of the $42 million dollars she has seized in assets of a charity and from William Gallion et al.   Apparently the accounting reveals a number of persons who received payments from these funds.

The Bar Counsel’s office has known of the actions of Angela Ford in the handling of clients funds, and no public action has been revealed.   Sources close to William Gallion report that Angela Ford seized his personal laptop which contained numerous attorney client communications.  She had the laptop sold at a judicial auction.   Gallion’s family tried to purchase the laptop at the judicial sale, but she was outbid by Angela Ford.  These
sources report that Angela Ford had the hard drive copied and has retained his attorney client communications.

LawReader is seeking information regarding the handling of the news reports provided to the Bar Counsel’s office regarding conduct of Angela Ford regarding her handling of clients escrow funds.

Any investigation of the actions of the Bar Counsel by the KBA should ask if the Bar Counsel’s Office  has hidden behind “confidentiality ” rules and has not acted on published claims regarding Ford’s improper handling
of clients funds.  One thing is clear, the actions (and failure to act) by the Bar Counsel raise many troubling questions that the public should be entitled to know.  An independent investigation of the Bar
Counsel’s office is clearly warranted.
We further submit that the hiring of a Louisville law firm (Stites and Harbison) in numerous ethics cases, should be closely examined.  The Bar Counsel’s office employs nine full time lawyers and the question
of why outside counsel is needed by the KBA is a fair question.  Why the same Louisville law firm is being hired should be examined.  LawReader has received confirmation for three sources to the effect that Linda Gosnell’s
daughter is an associate in the Lexington office of Stites and Harbison.

The firms fee in the Deters case was $44,000.  That fee was regarding two court appearances in Federal Court wherein Judge Danny Reeves quickly granted summary judgment in favor of the Bar Counsel. On Nov. 18th. the Board of Governors disallowed this fee to be charged against Deters as a condition of his right to appeal to the Ky. Supreme Court.  One assumes that the dues paying bar members will be stuck with this fee bill authorized by Linda
Gosnell.    We note that the Board of Governors acted decisively in disallowing an attorneys fee under the guise of a “cost and expense” bill.   The Sup. Ct. last week repealed a rule that allowed the Bar Counsel to impose large
cost bills as a precondition for an attorney to have the right to appeal his conviction of ethics charges.

One of the Deters lawsuits against the KBA is on appeal to the 6th. Circuit.  In the John M. Berry / ACLU claim against the KBA, a reliable estimate suggests that the potential billing will be in excess of $100,000.
Berry was never convicted by the Bar of anything, but sued them for placing a warning letter in his KBA personnel file.  He wrote a letter critical of the Legislative Ethics Commission and after former Ct. of Appeals judge Paul Gudgel called
Gosnell, she began a two year investigation of Berry.  Berry admitted the letter but denied that it questioned the integrity of a judicial officer.   The Federal Judge ruled that the federal courts don’t have jurisdiction
of attorneys first amendment cases when brought by state bar associations.   That ruling is on appeal to the 6th. Circuit.

The current Supreme Court Rules (SCR 3.150 Access to disciplinary information) limit the distribution of information about ongoing ethics investigations.   This
rule allows the Bar Counsel to hide ethics complaints for years.

This rule apparently can be applied to hide from potential victims, the financial wrongdoing of their lawyer.  If Angela Ford has made a distribution of seized funds,  without a final judgment
to support the judgment , then Ford’s clients may be ordered to return any distributions.  It is still possible that the Fen Phen defendants may be retried and have a chance to win their civil case.  If that happens and the $42 million has been
distributed, it is unlikely that refund of the money by Ford’s clients would be likely.

The U.S. Attorneys office appears to be more interestged in protecting the original plaintiffs now represented by Angela Ford, than does the Bar Counsel’s office of the KBA.

It is reported by some sources that Angela Ford may have distributed up to $13 million dollars to herself and others as attorney fees.  The only basis for Ford to pay
herself is a judgment of the Boone Circuit Court which has been reversed and remanded for a new trial.

Until the accounting ordered by Federal Judge Danny Reeves is released, the public and the Fen Phen plaintiffs and defendants will not know what happened to the millions held by Angela Ford.

ABA BLOG COMMENTS REGARDING THE KBA INVESTIGATION OF JOHN M. BERRY JR.

Tuesday, November 22nd, 2011

The following web comments are posted on the aba
journal concerning the kba’s investigation of john m. Berry jr. who wrote a
letter to the legislative ethics commission explaining that they did not apply
the doctrine of respondent superior.

A member of the legislative ethics commission called
linda gosnell the kba bar counsel (now fired) and she investigatged berry for
two years on a claim that he had recklessly told the truth.

The investigation never made it to the inquiry
commission or the board of governors, but gosnell placed a letter in berry’s
kba personnell file warning him to restrain his speech for one year.

he has sued the kba and the case is before the 6th.
circuit court of appeals.  the bar
counsel hired stites and harbison as outside counsel to defend the bar.  the bar counsel’s office has nine lawyers,
but apparently none are qualified to appear in federal court(???)

it is interesting to see the first amendment comments
of lawyers around the country.

First Amendment

Court:
Kentucky Bar Can Restrict Attorney Speech

By Stephanie Francis Ward

Apr
12, 2011, 09:48 am CST

Comments

“U.S.
District Court Judge Danny Reeves found that the rule in question is
constitutional . . . even if it does restrict constitutionally protected
speech.”

Can
you link to the opinion. I’d like to see how Danny does that (or if he does).

By
Pushkin on 2011 04 12, 1:18 pm CST

It’s
easy, Pushkin. You simply start with where you want to end up and manufacture a
ridiculous rationale that’s facially contradictory.

Ironically,
the opinion claims to preserve respect for the judiciary, while it does nothing
of the sort. This raising of the battlements around the judiciary merely
reinforces the opinion of the public that the government does whatever it
wants, irrespective of the law, and the courts will say whatever is necessary
to allow the government to operate without criticism or challenge.

America
is a scary place.

By
Terrified on 2011 04 12, 1:47 pm CST

?
▬ ?

“His (Reeves) ruling also found that the federal courts have no jurisdiction to
overturn state bar association disciplinary actions.”

? ▬ ? REALLY ?

Disciplinary Counsel v. Zauderer, 10 Ohio St.3d 44 (1984)

OFFICE OF DISCIPLINARY COUNSEL v. ZAUDERER, D.D. No. 83-19.

Supreme Court of Ohio. Decided April 4, 1984.

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 US 626
- Supreme Court 1985

471 U.S. 626 (1985)

ZAUDERER v. OFFICE OF DISCIPLINARY COUNSEL OF THE SUPREME COURT OF OHIO

No. 83-2166.

http://scholar.google.com/scholar_case?case=9961821012845558561&q=zauderer+v.+ohio&hl=en&as_sdt=2,36&as_vis=1

Supreme Court of United States. ▬ Argued January 7, 1985 ▬ Decided May 28, 1985

APPEAL FROM THE SUPREME COURT OF OHIO

Alan
B. Morrison argued the cause for appellant. With him on the briefs were David
C. Vladeck and David K. Frank.

H.
Bartow Farr III argued the cause for appellee. On the brief were Angelo J.
Gagliardo and Mark H. Aultman.[*]

By
3. Jim-OH 2011-04-12 19:34 -0400 [ ? ] on 2011 04 13, 5:35 pm CST

Don’t
bring facts to the discussion, Jim.

By
J. on 2011 04 13, 6:41 pm CST

@2:
Obviously, there’s a “compelling state interest” in keeping the public in the
dark. In Kentucky, public dicslosure of the facts might even be a “clear and
present danger” to the judiciary. [/snark]

No banning of Billingsly’s book, however, so it’s only attorneys who are
muzzled. Only KY attorneys, in fact … so an OH attorney could have sent the
very same letter to the very same people, without consequences. I can see why
J.M. Berry, Esq. is peeved.

By
Ham Solo on 2011 04 15, 5:55 am CST

Kentucky
is very strict on attorney speech unless you’re making cheesy (and sometimes
racist) advertisements where the lawyer shrinks dinosaurs or towers over
Japanese tourists like Godzilla. And no, I am not kidding about either ad.
Basically, you criticize any judge or organization, and they come down on you
like the hammer of Thor.

I
could tell you why, but then they’d have to kill me. In fact, I’ve said too
much already…

By
Kentucky Bob on 2011 04 15, 6:13 am CST

“Legislative
ethics in Kentucky” is an oxymoron these days. If you complain, it’s almost
certain that they will do nothing, and then they will punish you.

Read it and weep: http://news.lawreader.com/?p=3505

By
Schmethics on 2011 04 15, 6:48 am CST

Anyone
who actually reads the letter would be hard pressed to find any basis for an
ethical violation. Bogus ethics complaint, followed by a Federal judge’s bogus
decision. Madison must be rolling in his grave.

By
Publius on 2011 04 15, 6:56 am CST

Too
true, #2.

You’re
thinking too logically, #3.

We’ll
miss you, Kentucky Bob.

By
Michigan Matt on 2011 04 15, 7:04 am CST

I
know I’m being a broken record, but the First Amendment only applies to laws by
Congress. It would be nice if sometime this century, a judge actually read it.

By
DirkJohanson on 2011 04 15, 7:22 am CST

Well
Well kiddies!!! Think you got rights? Think again! Your State Supreme Court’s
and ODC”S hold your goodies in thier hot little hands and if you say you
don’t like it they-SQUEEZE!!!! We learned that here in De. a long time ago!

By
largeweasel on 2011 04 15, 8:28 am CST

@10,
DJ – Of course what you say is literally true; but most people thinking about
the First Amendment when discussing state and local laws and rules mean the
First Amendment as applied by way of the Fourteenth’s Due Process Clause and
the incorporation doctrine, right?

By
Daniel on 2011 04 15, 8:54 am CST

@12.
Yes, that’s what they mean. And the actual text of the Fourteenth doesn’t help
the argument, either.

By
DirkJohanson on 2011 04 15, 8:56 am CST

1)
I agree with those that there is nothing remotely inflamatory in this letter.
It just disaggrees with the legislative commission’s verdict.

2) How does the letter affect public confidence in the judiciary (their
proposed rationale for the discipline.) It criticizes a LEGISLATIVE
commission’s decision; not a judge’s.

Unless there’s more to this case than just this letter (and yes, ABA, it would
be nice if you posted the decision that is the subject of the article), then
this is just crap. Berry and the ACLU, don’t give up now. Take this to the
appellate and supreme court if necessary.

By
THIS IS BULLHOCKEY on 2011 04 15, 8:58 am CST

Dirk:
Maybe it is the First Amendment of the state’s constitution.

By
fnlawyer on 2011 04 15, 9:16 am CST

The
actual decision can be found here:

http://www.lawreader.com/index.php/browse/node/9084.html

By
This is bullhockey on 2011 04 15, 9:19 am CST

Absolutely
stupid decision…very disingenous of the federal judge…now try to censor this.

By
Say What on 2011 04 15, 9:31 am CST

I
read the Constitution – cover to cover- and I could not find any mention of the
Kentucky Bar Association.

By
VERITAS on 2011 04 15, 12:43 pm CST

And
vice versa.

By
Ham Solo on 2011 04 15, 1:03 pm CST

I
believe NJ takes a similar position regarding controlling attorney speech and
having the sole right and ability to discipline attorneys for “ethics
violations.” Not only have people lost faith in the government and the court
system, they have lost faith in the attorneys. So, colleagues, having taken an
oath to defend the Federal Constitution and the constitution(s) of the state(s)
to which we are admitted, what do we do?

By
Jac on 2011 04 15, 1:05 pm CST

@
15 There is no First Amendment to the Kentucky constitution

By
DirkJohanson on 2011 04 15, 2:42 pm CST

I
think most of the people on state Ethics Committees try to do the right thing…
that’s why they put up with the job. I also think that when in doubt (as we all
are from time to time), they have a tendency to take the middle road: bad
characters get off with a slap on the wrist, at least the first time around,
and honest actors like Berry sometimes get the same slap on the wrist. A bit
messy, but it works out in the long run.

The
federal courts can’t review a state court decision on a state law question,
which was, “Did Berry violate Rule 8(a)?” No shocker there. Berry’s challenge
to the rule itself is actually pretty narrow: the Constitution protects
(almost) all true statements, whereas Rule 8(a) prohibits reckless statements,
even if they are true. The court held that Kentucky does have a compelling
interest in preventing reckless speech, by attorneys, about judges.

We
might debate whether or not Berry’s speech was reckless – he based it on
alleged “evidence” of which he had no knowledge, because it was presented at a
hearing from which he was excluded. And there’s that subtle distinction whereby
the state court, not the federal court, is the final arbiter of that
federal-ish question.

From
top to bottom, the Berry case does stink to high heaven of personal power and
influence run amok, in a system that seems deliberately designed to enable it.
(Read that link in #7.) The First Amendment case doesn’t begin to address that
problem.

By
Ham Solo on 2011 04 15, 2:59 pm CST

Pushkin
- haven’t seen the opinion yet, but might they be thinking that “congress” may
make no such law, but the head of another branch, like the judiciary, may do
just that….?

By
JJ on 2011 04 15, 3:02 pm CST

And
the opinion may or may not shed light on this, but do they have a different
level or scope of “restriction” as they will apply it to speech er I mean
“constitutionally protected speech?”

By
JJ on 2011 04 15, 3:07 pm CST

Is
there ANYONE out there who is actually eduated in the law and First Amendment
rights who believes this opinion has any legal, moral or rational basis? This
is only the most recent decision in a trend of cases in which the judicial
branch of government has declared its immunity from FirstAmendment citizen
protections. Maybe someone can point me to the language in the First Amendment
excepting the judicial branch or any branch of government from criticism or
excepting those who enter the legal “profession” from its protections. Frankly,
the Judges on this Court should be impeached and removed from the bench for
openly engaging in a conspiray to violate the Constitutional rights of this
citizen. Then they should be indicted and imprisoned for official miscoduct. I
am very serious. This has gone TOO FAR.

By
Citizen 1 on 2011 04 15, 6:00 pm CST

@
25. That’s easy.

Here’s
the pertinent part of the First Amendment: “Congress shall make no law …
abridging the freedom of speech, or of the press;”

This
case doesn’t involve a law by Congress. As recently as 1926, the Supreme Court
was true to that requirement, and then surreptitiously decided that the words
“Congress shall make no law” didn’t actually exist.

This
case doesn’t abridge the freedom or speech, or of the press. Letters aren’t
speech. Speech is talking, or something on the order of sign language. The
letters in this case aren’t the press.

As you know, courts have decided that speech is every form of expression, even
naked chicks on a stage, but if those courts were right, than the First
Amendment would say, “abridging the freedom of speech, INCLUDING the press.”

Of
course, this decision doesn’t say that. Instead, this decision (I assume, I
haven’t read it, but there are thousands like this) relies upon the variety of
judicially legislated, made-up exceptions to the overly-broad rules courts have
created about the scope of the First Amendment. As such, it has nothing to do
with the First Amendment – it just has to do with a lot of people call the
“First Amendment” but are actually made up gobbledeegook by judges.

By
DirkJohanson on 2011 04 15, 6:34 pm CST

The
14th Amendment extends our rights under the US Constitution to the states. So,
Kentucky is bound by the 1st Amendment.

By
Greg on 2011 04 16, 1:32 pm CST

Yes,
Greg, that’s what courts hold, but in fact the 14th extends the First Amendment
thanks only to judicial legislating, not because of what’s actually in the
14th.

By
DirkJohanson on 2011 04 16, 3:17 pm CST

And
I’m guessing Dirk thinks we should all be driving around in horse buggies and
not allowing public education because they didn’t have that in 1789. Or better
yet, the Constitution is a sham altogether because the Constitutional
Convention that drafted it exceeded its authority when it met and so we should
still be operating under the Articles of Confederation, right Dirk? Or that the
14th Amendment isn’t valid because we forced the south to ratify it as a
condition for reunification? Blah, blah, blah.

Dirk’s
position is the same old tired literalism of Clarence Thomas.

The
founding fathers wanted a living, breathing document, and they wanted it to
evolve. Otherwise, they would have written the Constitution to be 4,672 pages
long, and even then it would not have covered all the eventualities.

But,
OK, Dirk, if you want to be a literalist, the 14th amendment says…

“No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States.”

We can argue ‘til the cows come home about what the privileges or immunities of
citizens of the United States are, but a great case can be made that they’re
the Bill of Rights. Arguably, the only judicial activism present was that of
the Slaughterhouse decision, which re-wrote the 14th Amendment to not extend
ALL federal limitations to the states. And the court did that because they were
ticked off with the lawyer for slaughterhouses, a former U.S. Supreme Court
justice who left the court to join the revolution. So if there’s any activism
going on here, it’s too little federalism in contravention of the 14th
Amendment.

The
14th Amendment means states lost some rights. We fought a civil war over this.
Game over. Join the 21st century, Dirk.

By
Oh get real on 2011 04 17, 3:09 pm CST

@
29. A “living constitution” means things such as including “press” protection
for television broadcasts, this article, and internet postings such as this
article and our comments, even though when the First Amendment was ratified,
the “press” truly involved a printing press. A “living constitution” also means
there is an amendment process. It doesn’t mean that 7 or 9 individuals, many of
whom are political cronies (on the current court, Roberts, Alito, Kagan, and
Thomas easily fit into that category) get to render decisions altering the
plain language of the constitution in order to overrule the decision of the
United States Congress, 50 state legislatures, and the elected officials of
every other political subdivision in America. We’re a nation of laws.

The
privileges and immunities clause makes a lousy argument for extending the Bill
of Rights. A “privilege” is obviously not a “right,” nor is an “immunity” a
“right” as the rights under the Bill of Rights are described; would you call
the right to trial by jury an “immunity?” For what its worth, the first
incorporation doctrine case wasn’t for almost 30 years, and wasn’t a Bill of
Rights issue, more than a half-century after the Fourteenth was ratified,
SCOTUS still held the First didn’t apply to the states.

Ironically,
you criticize Thomas, when in fact he is credit with reviving it in MacDonald
last year. It was unnecessary for him to use the Fourteenth, however, in order
to extend the Second to a city code because the Second Amendment is plainly not
limited to laws by Congress the way the First is.

I
assume you like it when a small number of people make up their own
constitution, because so far you view it is going your way. Wait until the
judges you don’t like start making up their own constitution to rule against
what you’d want them to. I also find people like you incredibly myopic, usually
failing to consider the many laws by Congress that truly abridge freedom of
speech that have been upheld by judges writing their own constitution. Your
21st century view of the constitution is actually having no constitution at
all.

By
DirkJohanson on 2011 04 17, 4:11 pm CST

Your
19th century view is like having no constitution at all, when the states can
take away the rights this country was founded on.

By
Greg Ohio on 2011 04 19, 10:22 am CST

“when
the states can take away the rights this country was founded on. ” This is
starting to sound like that N. Dakota pol, defending his constituents’ right to
drive drunk.

News
flash: When there’s a compelling state interest, they can. So can Congress.
This has always been the case. Read the decision: The only issue here was where
to strike the balance between Berry’s right to reckless speech, and the state’s
interest in preventing it when it’s directed at the judiciary by a member of
the bar.

It’s
a narrow decision, not the end of life as we know it. If Kentucky had barred
Berry from saying anything at all about the commission, the ruling would have
gone in his favor. As it is, he can still say anything he wants, so long as
it’s not reckless.

By
Ham Solo on 2011 04 19, 12:59 pm CST

@
Dirk – Kentucky’s Constitution might not have a First Amendment, but Section
one of the main body of our constitution provides that the freedom to publicly
express ones thoughts and opinions is an inherent and inalienable right -
inalienable even by act of a bar association!!

By
Ryan on 2011 04 19, 1:37 pm CST

I
do not know enough about the Rooker-Feldman doctrine to know if this judge’s
decision was correct. I make no comment on whether it was or was not.

But
to call this Berry’s letter “reckless” is absurd. It is nothing more than a
polite insistence that the legislative ethics commission failed to do its job.
Not only is it political speech, but responsible political speech.

The
state bar dinged him under the weak, weak stretch that the lawyer made
misleading statements by remarking that the ethics commission conducted its
hearing in secret (which it did). They extrapolated that, because the rules let
the ethics commission conduct its hearings in secret, the lawyer was misleading
people into thinking that the commission was doing something wrong by so
conducting the hearing in secret. Give me a break. Even if the lawyer was
intimating closing the hearing was wrong, there’s a difference between legal
and wrong and right, and it’s a legitimate point that even if it was legal,
many people think it wasn’t right to conduct such a hearing in secret.

[And
I would note, the legislative ethics commission is not the judiciary, so the
bar’s interest in this letter just gets weaker all the time, given that the
bar’s ostensible purpose was preserving respect for the judiciary.]

Berry’s
letter was in no way reckless, and for Ham Solo to compare someone calling free
speech a right the country was founded on, to some moron’s defense of drunk
driving, is …. well, reckless. This is free speech, Ham, not some defense of
drunk driving. When you can’t criticize a government action without
repercussion (lawyer or common citizen), it is a big deal.

By
Oh get real on 2011 04 19, 1:51 pm CST

Berry
wrote that the exoneration was “contrary to the undisputed evidence that was presented.”

Maybe
if he’d been at the hearing, he’d have had grounds for this statement – like,
say, knowing what the evidence was, and knowing whether or not it was disputed.
Problem is, he wasn’t there (a fact that he admits, and complains about.)

As
I read it, it is the opinion of the court that accusing a judge of ignoring
“evidence” that you don’t actually know was (or was not) presented or disputed,
is reckless, if you’re an attorney subject to the ethics rules of the Kentucky
bar. If you find that “absurd”, well, you’re welcome to your opinion … just
don’t do it in Kentucky.

By
Ham Solo on 2011 04 19, 2:21 pm CST

@
31. You overstate the scope of much of the constitution. The point is, I in no
way assert that states have the power to “take away” rights protected by the
federal constitution, simply that what many others assert is protected by the
federal constitution is, in fact, not.a protected right in the first place.

@
33. You may very well be right about the Kentucky constitution protecting the letter
at issue; it appears to be much more protective of expression than the First
Amendment. My peeve is with the various interpretations of the scope of the
First Amendment. These are the relevant provisions I found in a quick read:

“All
men are, by nature, free and equal, and have certain inherent and inalienable
rights, among which may be reckoned

Fourth: The right of freely communicating their thoughts and opinions.

Sixth:
The right…of applying to those invested with the power of government for
redress of grievances or other proper purposes, by petition, address or
remonstrance. (not sure if this letter qualifies)

Also,
another provision:

Every
person may freely and fully speak, write and print on any subject, being
responsible for the abuse of that liberty.

That
last clause could be a legitimate limitation here. I don’t have enough time to
analyze further now.

By
DirkJohanson on 2011 04 20, 10:16 am CST

 

LINDA GOSNELL FIRING ALLEGEDLY CONNECTED TO FEN PHEN FUNDS.

Tuesday, November 22nd, 2011

Nov. 22, 2011

LawReader has confirmed that Fen Phen plaintiff’s lawyer
Angela Ford was ordered to provide an accounting to U.S. District Judge Danny
Reeves by Nov. 9, 2011.  The accounting
of her handling of clients funds was requested by the U.S. Attorney’s office.

In December 2010 the
U.S. Attorneys Office obtained a court order from the Jessamine County Circuit
Court setting aside the judicial sale of the home of Fen Phen defendant William
Gallion.  The U.S. Attorney’s Office
alleged that Angela Ford bought the Gallion home with money she was holding in
escrow for her clients.   The U.S.
Attorney argued successfully that at least twelve of the client’s Ford was
holding money for were not her clients.

Several months ago the U.S. Attorney’s Office sought a
motion for Angela Ford to provide an accounting of the $42 million dollars she
was holding in escrow for her clients.;

Sources close to the Ky. Bar Association have reported to
LawReader that the KBA Chief Ethics Prosecutor, Linda Gosnell, was fired on
Monday Nov. 21,  as a result of information
contained in the accounting.  (Another
source says the actual firing occurred on Saturday Nov. 19th.)

Gosnell’s name has
been removed from the KBA website which previously listed her as KBA Bar
Counsel.

The Clerk’s Office for the Eastern District of Kentucky
(Covington) reports to LawReader that as of Nov. 22, 2011, Angela Ford has not
complied with that court order to provide the accounting. The Clerk does not
have a copy of the ordered accounting. We are trying to get a copy of that
accounting.

Another source reports that the U.S. Attorney’s office has a
copy of that accounting and apparently shared the report with officials of the
KBA.  The KBA reportedly fired Linda
Gosnell shortly after reading the distribution list of parties who received
payment out of clients funds.

Any further action regarding the release of the financial
accounting must be taken by Judge Reeves, or presumable by the U.S. Attorney’s
Office.

It is reported from sources close to the KBA that the
accounting contains a “distribution list” of persons who received
payments from Angela Ford, presumably paid out of client’s money held in
escrow.

The money held by Angela Ford was seized by her after she
obtained a summary judgment in 2010 in the Boone Circuit Court.   That summary judgment was appealed to the
Court of Appeals.  The Court of Appeals
reversed the summary judgment, and Ford appealed to the Ky. Supreme Court where
the decision is still being considered.

Under a ancient rule known to every lawyer, no payments may
be made to a plaintiff until the case is final (the finality rule), and as of
the present there is no final judgment in the Fen Phen cases.  It is reported by sources close to the Fen
Phen case that Angela Ford has distributed at least some of the $42 million
dollars she has seized in assets of a charity and from William Gallion et
al.   Apparently the accounting reveals a
number of persons who received payments from these funds.

The Bar Counsel’s office has known of the actions of Angela
Ford in the handling of clients funds, and no public action has been
revealed.   Sources close to William
Gallion report that Angela Ford seized his personal laptop which contained numerous
attorney client communications.  She had
the laptop sold at a judicial auction.
Gallion’s family tried to purchase the laptop at the judicial sale, but
she was outbid by Angela Ford.  These
sources report that Angela Ford had the hard drive copied and has retained his
attorney client communications.

LawReader is seeking information regarding the handling of
the news reports provided to the Bar Counsel’s office regarding conduct of
Angela Ford regarding her handling of clients escrow funds.

Any investigation of the actions of the Bar Counsel by the
KBA should ask if the Bar Counsel’s Office  has hidden behind “confidentiality ”
rules and has not acted on published claims regarding Ford’s improper handling
of clients funds.  One thing is clear,
the actions (and failure to act) by the Bar Counsel raise many troubling
questions that the public should be entitled to know.  An independent investigation of the Bar
Counsel’s office is clearly warranted.
We further submit that the hiring of a Louisville law firm (Stites and
Harbison) in numerous ethics cases, should be closely examined.  The Bar Counsel’s office employs nine full
time lawyers and the question of why outside counsel is needed by the KBA is a
fair question.  Why the same Louisville
law firm is being hired should be examined.
We are still trying to confirm reports that relate to this issue.

The
current Supreme Court Rules (SCR 3.150 Access to
disciplinary information)
limit the distribution of information about
ongoing ethics investigations.   This
rule allows the Bar Counsel to hide ethics complaints for years.

This rule apparently can be
applied to hide from potential victims, the financial wrongdoing of their
lawyer.  If Angela Ford has made a distribution of
seized funds,  without a final judgment
to support the judgment ,
then Ford’s clients may be ordered to return any distributions.  It is still possible that the Fen Phen
defendants may be retried and have a chance to win their civil case.  If that happens and the $42 million has been
distributed, it is unlikely that refund of the money by Ford’s clients would be
likely.

It is reported by some sources that Angela Ford may have
distributed up to $13 million dollars to herself and others as attorney
fees.  The only basis for Ford to pay
herself is a judgment of the Boone Circuit Court which has been reversed and
remanded for a new trial.

Until the accounting ordered by Federal Judge Danny Reeves
is released, the public and the Fen Phen plaintiffs and defendants will not
know what happened to the millions held by Angela Ford.

 

BAR COUNSEL LINDA GOSNELL REORTEDLY FIRED BY KBA BOARD OF GOVERNORS

Monday, November 21st, 2011

Monday Nov. 21, 2011
Today it was reported to LawReader that the KBA Bar Counsel, Linda Gosnell,  was summarily fired by the Board of Governors.  The Bar Counsel is the chief ethics prosecutor of the KBA.

Reports are filtering into LawReader that suggest the accounting of clients funds held by Fen Phen lawyer Angela Ford were unsealed by U.S. District Judge Danny Reeves,
and that there is a connection to the Ford accounting and the firing of Linda Gosnell.   We cannot confirm this report, but the source was close to the KBA .

The accounting had been sought by the U.S. Attorney’s office.   Judge Reeves approved the accounting request, but Judge Reeves sealed the report until this week.  It is not
known if the complete accounting will now be made public.

It is reported that Angela Ford has made at least a partial distribution of funds seized from a charity and from William Gallion and partners.  This is almost unbelievable since the summary judgment against Gallion and his partners, was reversed by the Ky. Court of Appeals, and is still on appeal to the Ky. Supreme Court.   We know of no legal theory that allows a distribution of funds seized from a defendant without a final judgment.

On Friday of last week, the KBA Board of Governors set aside a cost bill submitted by Bar Counsel Gosnell in the case of No. Ky. attorney Eric Deters.   The cost bill included a fee for outside
legal services provided to the Bar Counsel’s office of $44,000.   The law firm of Stites and Harbison was also hired by the Bar Counsel, Linda Gosnell, to defend the lawsuit filed by John M. Berry Jr. and the ACLU, which is currently pending in the 6th. Circuit Court of Appeals.   The Bar Counsel investigated Berry for writing a letter critical of the legislature.  An obscure rule was cited, but legal scholars could not find any relevance of that rule to the facts.

Earlier last week the Ky. Supreme Court repealed the rule that allowed cost bills imposed by the Bar Counsel to disqualify any appeal to the Supreme Court until the “cost” bill was paid by a defendant lawyer.  This amendment of the Supreme Court rules occurred at a special session of the Supreme Court.  This would appear to indicate that the Supreme Court strongly disapproved of the Bar Counsel’s ability to deny appeals to attorneys charged with ethics violations.

It appears from our viewpoint that the Supreme Court and the Board of Governors has taken appropriate action.  They must now ask themselves if they will continue to authorize the Bar Counsel’s office to operate behind a
wall of secrecy.

Further rumors of more sinister conduct are flying throughout the legal community in Kentucky. We will report more as soon as
these rumors can be confirmed or disproven.

We get nervous when we hear words like, “U.S. Attorneys Office’ and “accounting of the handling of client’s funds” in the
same sentence.

Stay tuned….this is getting interesting.

Another Victory In My (Deters) Bar Battle: By Larry Forgy

Monday, November 21st, 2011

(Article posted on Deters website.)

1. For the Kentucky Supreme Court at a special meeting on last Monday, November 15, to unanimously amend SCR 3.370 to remove the surety requirement for an attorney to appeal to
the Supreme Court any decision from the Board of Governors is historic and is also just. As we pointed out in our Motion, not even criminals or civil litigants must post a surety to appeal.

 

2. For the Kentucky Board of Governors on last Friday to unanimously remove $41,229.47 from Eric’s certified costs is also historic and just. When the Kentucky Bar Counsel
certified $52,962.89, we were shocked at the amount and the fact $44,229.47 was labeled as “legal costs” without informing us what constituted this amount except $18,620 for the first federal lawsuit defense Eric filed did not
have the transparency one would expect from Bar Counsel.
When we asked to review the costs, Bar Counsel refused. Also, when we asked about a Motion, Bar Counsel told us there was no rule allowing a Motion. After reading the rule, we
realized, there was no rule for a Motion to challenge the costs. We followed the legal principle “that which is not prohibited is allowed.” We filed a Motion (Attachment A) and copied to every Board Member. The Board
agreed to hear it and ordered Bar Counsel to Respond and allowed us to Reply to their Response (Attachment B).
We won. We are grateful to the Board. We won a Motion Bar Counsel represented we could not file and we believe is the only Motion like it ever filed.

Bar Counsel has been adding outside attorney fees as a cost on these matters. It’s been dishonest by the failure to represent the costs as legal fees and detail them and it’s been
improper because the law does not recognize attorney fees as costs.
3. Another amendment by the Supreme Court in SCR 3.370 under section 6 is the Board now has 45 days from their vote to issue a written decision. This too, we believe, was
initiated because of Eric’s case. The old rule said the Board “shall…in 30 days.” We pointed out they did not issue a written decision until after 30 days in our matter. The Board meets once a month so this 30 days is an
obvious close call. We believe this is an appealable issue for us and based upon the Supreme Court rule change, the Board and Court at least recognized the need for the rule change.
4. The fact we defeated 15 of the 19 Bar charges at the Board level we still believe the costs should be prorated. ($8,733.42) We should have to pay 4/19th of the $8,733.42. However, in light of the Supreme Court and the Board’s actions, we will live with it.

5. Also, we filed a Motion Friday to allow 30 more days to file our Brief to the Kentucky Supreme Court appealing the four charges. It was due Monday. The Court granted our Motion.

6. Stan Billingsley of Lawreader.com raised several issues we had not considered: Did Bar Counsel have authority from the Board to hire “outside” legal counsel? Why
does Bar Counsel need outside legal counsel? They have nine lawyers and there is no reason one of them should not be an expert on all state and federal issues relative to the Bar. Stan raises the issue whether or not Linda Gosnell,
Bar Counsel, is under fire based upon the recent handling of Eric’s and John Berry’s cases. Also, Eric detailed dishonesty of Bar Counsel in his matter to the Board. On Friday, Stan represented a lawyer Bar Counsel charged for being
an hour late for Court.

7. Of special note is Bar Counsel including Stites & Harbison attorney fees for defending both federal lawsuits, The first federal lawsuit asked for intervention to stop the Bar process based upon a conflict of the Trial Commissioner. This is the case in which Judge Reeves overruled the Motion for Injunctive Relief. Eric then dismissed the case. Eric had to suffer a sanction which Judge Reeves suspended for an audit of Eric’s federal lawsuit filing practices. The audit was
completed in early November.
The second lawsuit is still pending. There is a Motion to Dismiss for Judge Reeves to rule on. This case has two narrow issues:

Immunity of Bar  Counsel

  1. The Recusal of  Trail Commissioners Based upon federal law, we asked only for a ruling that applies to future Bar proceedings against Eric. For Bar Counsel to try to include these fees to Stites & Harbison
    when they have nothing to do with these current charges is dishonest. Furthermore, Stites & Harbison only filed a Motion to Dismiss in both federal cases and their bill is $44,000! At this rate, if Eric hired a lawyer
    to represent him from the beginning, his legal fees would be $1,000,000. There is another issue relative to Stites & Harbison. Was this legal work bid? How did they work?

8. Bar Counsel is out of control. After the defeat of 15 of 19 of their Bar Charges, they filed a Bar Complaint against Eric over the first federal lawsuit. Bar Counsel is obsessed with “getting” Eric solely because he has had the courage to stand up to them. Bar Counsel should not be vindictive. They have forgotten they represent the lawyers in Kentucky. They should act in the best spirit of the profession, not the worst.

Other Attachments:
(c) Supreme Court November 15 Order

(d) Board of Governors Order November 18

 

A GREAT WEEK FOR ATTORNEYS RIGHTS!!! Kentucky Supreme Court and Board of Governors Act Quickly to Limit Bar Counsel Actions

Saturday, November 19th, 2011

Every attorney in Kentucky should express their gratitude to the Kentucky Supreme Court and the KBA Board of Governors,
for actions taken this week in response to complaints from different sources alleging abuse of attorney’s rights by the KBA Bar Counsel’s Office.

Tthe Kentucky Supreme Court in a special meeting on Nov. 15, 2011, amended SCR 3.370.  The Supreme Court, without a dissenting vote, amended SCR 3.370 (8) by deleting a provision of the old rule
which required an attorney who had been sanctioned by the Board of Governors to post a 100% surety bond before he had the right to appeal his conviction to the Supreme Court.
This  has not been much of an issue until recently when the current Bar Counsel, Linda Gosnell, started a new practice of tacking “attorney fees” to her “cost and expense” bills.

In recent cases the amount claimed by the Bar Counsel  under the rule  which allowed the Bar Counsel to certify the “costs and expenses” in discipline caseas “costs”  appear to have skyrocketed.  Examples of such “cost” bills include as $40,000 in the David Helmers Case,  $18,800 in the Judge Bamberger case, and $52,900 in the Eric Deters case.

LawReader has previously posted several articles on the impropriety of the Bar Counsel adding “attorney fees” to their bill for “costs and expenses”.  Kentucky case law has strictly limited the award of attorney fees to cases in which a statute or rule specifically authorizes the award of attorney fees.   No such rule exists in the Supreme Court Rules concerning ethics prosecutions.

The most egregious claim  made by the Bar Counsel which has been disclosed, was in the Deters case.  The KBA in response to a motion filed by Deters and his attorney Larry Forgy of Lexington, determined that the Bar Counsel had hired outside counsel, (Stites and Harbison) to represent the KBA in a Federal District Court action filed by Deters.  Stites and Harbison charged $44,000.  It is argued that while their motion to dismiss Deter’s federal complaint against the KBA was successful, that the matter only required the filing of one or two motions and attending one or two hearings in Covington.

Federal District Judge Danny Reeves quickly determined that the Federal Courts have no jurisdiction to hear constitutional rights claims filed by an attorney against a Bar Association.   Judge Reeves decision is currently on appeal
to the 6th. Cirt. Court of Appeals.

A similar lawsuit was filed by the ACLU in John M. Berry’s lawsuit against the KBA. This Federal suit against the KBA,  relates to the Bar Counsel’s Office attempt to deny Berry the constitutional right to freely express his opinions about an action taken by the Legislative Ethics Commission. (Berry wrote a letter to the Legislative Ethics Commission expressing his opinion that their acquittal of Senate President David Williams was not supported by law.  The Commission reasoned that Senator Williams was not liable for the improper acts of his employees.  This reasoning appears to be contrary to the age old Respondent Superior Doctrine.

Berry’s letter was polite, non threatening, and was non profane.  But it upset at least one member of the Legislative Ethics Commission.  It has been reported that former Court of Appeals Judge Paul Gudgel, who now serves on the Legislative Ethics Commission called Linda Gosnell, the current Bar Counsel, and sought her assistance in filing an ethics complaint against John M. Berry Jr. over his letter.)
LawReader has reported on this case extensively.  The author of this report published a book titled, Alice vs. Wonderland in 2011, which is a fictional novel loosely based on the John  Berry case.

Many in the legal community who have looked at the reasoning of Judge Reeves ruling in the Deters and Berry cases, note that his finding that “attorneys had no right to seek civil rights review in Federal Court for violation of their constitutional rights by a state Bar Association” , apparently failed to consider long established rulings which uphold the jurisdiction of Federal Courts to hear such claim.  (See footnote citations.)

Other cases where constitutional review by the Federal Courts of State Bar Rules include Dan Taylor vs. the KBA, and Getty vs. Chief Justice Scott Reed.   These rulings from the 1970′s, bring in question the ruling of Judge Reeves, and
indicate a strong likelihood that the Deters appeal and the Berry appeal may both be sustained by the 6th. Circuit Court of Appeals.  The Taylor and Getty rulings clearly upheld the right of the Federal Courts to review unconstitutional State Bar rules.

More recently, In a case involving a rule of the Judicial Conduct Commission, the 6th. Circuit Court of Appeals remanded a dismissal of Marc Carey’s claim on several issues, which are still pending in Federal Court in Lexington.  The 6th. Circuit  accepted jurisdiction and overruled the theory advanced by by a Federal Judge that the Federal Courts had no jurisdiction in such matters.

These three pending cases could result in substantial awards against the Judicial Branch (and in two of the cases against the KBA).  Section 1983 Federal Civil Rights actions specifically provide for an award of attorney fees if the KBA loses.

U.S. District Judge Coleman who sits in Lexington, is currently considering findings in the Marc Carey lawsuit, and it is conceivable that the Kentucky Judiciary acting through the Judicial Conduct Commission might be subject to an award of attorney fees in behalf of Carey.  Some close to the Carey case have speculated that there is a claim by Cary for up to $300,000 in legal fees which could be awarded to him.  The 6th. Circuit found two JCC rules unconstitutional.  (The Kentucky Supreme Court makes the rules for the Judicial Conduct Commission and for the  Kentucky Bar Association.)

One question will undoubtedly be asked of the KBA Board of Governors in the Deters and Berry cases.  Did the Bar Counsel make any effort to meet with opposing counsel and try to avoid the great expense of defending the KBA before the 6th. Circuit in cases that subject the dues paying members of the Ky. Bar Association to a potential of hundreds of thousands of dollars in costs and attorney fees? Or did the Bar Counsel, Linda Gosnell unilaterally decide to participate in the Federal Court actions without permission of the Board of Governors?

Why has the Bar Counsel’s Office  not admitted they were wrong to investigate Berry and place a warning letter in his personnel file?  Why don’t they come clean and admit that they were wrong. Why don’t they apologize, and recognize the free speech rights of attorneys?  If they weren’t so focused on stubbornly covering up their actions, they might save the KBA hundreds of thousands of dollars.  We can’t imagine a ruling  by the 6th. Circuit that says that an attorney cannot ethically write a letter critical of the legislature.

(The members of the Bar currently pay $4,500,000 in annual dues.  The KBA’s largest expenditure is the budget of the Bar Counsel’s office which has 24 employees.  Their budget is $1,600,000 annually.  Don’t be surprised if Berry and The ACLU win before the 6th. Circuit  and that on remand a large attorneys fee bill is imposed on the KBA i.e. on dues paying members of the Bar. )

We note that the Berry appeal, being handled by the Kentucky Branch of the ACLU, involves an infringement of Berry’s first amendment rights and has a very good chance of success.

One must ask, when the Bar Counsel’s office  became aware of Berry’s action in Federal Court, what efforts did they take to work out a settlement with Berry and the ACLU?

It should be noted that the Board of Governors was never involved in the Berry case.   The Bar Counsel investigated Berry for almost two years before dismissing the investigation. Even though no charge was filed the Bar Counsel placed a warning letter in his KBA personnel file without ever obtaining an “indictment” from the Inquiry Commission, and without the matter ever being tried before a Trial Commissioner, and without any review of the Board of Governors.

Whenever the KBA gets sued in Federal Court one would think that the Board of Governors would review the financial risk to the KBA, and at least evaluate a mediation of the claim.  We don’t know of any procedure which requires the Bar Counsel to advise the Board when they are being sued, but the Board clearly has authority to ask the Bar Counsel why they are being sued.

This week it was revealed that the Bar Counsel had authorized the hiring of an outside Louisville Law Firm, (Stites and Harbison).  We have found no SCR which authorizes the Bar Counsel’s Office to  unilaterally hire outside counsel.   (Note:  The Bar Counsel’s Office currently has nine lawyers on staff and a total of 24 employees, and an annual budget of $1,600,000.)
The Supreme Court Rules do authorize the Board of Governors to hire such legal assistance as they determine is necessary. Is it possible that the Bar Counsel did not obtain permission to hire outside counsel in the Deters case.  Are there other cases in which the Bar Counsel chose not to use its own staff of nine lawyers, and instead farmed out the case to Stites and Harbison of Louisville or to some other law firm?

On November 18, 2011, the Board of Governors considered a motion filed by Eric Deters which questioned the “cost bill” demanded by the Bar Counsel of $52,900.   The Supreme Court Rules allow the Bar Counsel to seek restitution of any “costs and expenses”.  The Rule does not specifically authorize an award of “attorney fees” to the KBA.  Deters was acquitted of 15 of l9 charges filed against him.   But on Nov. 18, 2011, the Board of Governors
granted a review of the “cost and expense” claim of the Bar Counsel, and determined that $44,000 of the $52,900 cost bill imposed on Deters, was a legal fee incurred by the Bar Counsel for the outside legal services of a large Louisville law firm.

We would ask the Board of Governors if they authorized the Bar Counsel to employ outside counsel.   The action of the Board disallowing the award of  $44,000 in attorney fees paid to Stites and Harbison, seems to indicate that the Bar Counsel did not seek permission from the Board of Governors to hire outside counsel.

If the Bar Counsel acted without legal authority to incur $44,000 in outside legal expenses, it is logical to expect that the conduct of the Bar Counsel will be closely reviewed by the Board of Governors.  One wonders if these actions of the Supreme Court and the Board of Governors suggest that  Bar Counsel Linda Gosnell’s job on the line?

The $44,000 fee earned by Stites and Harbison will likely be paid  out of the dues paid by kentucky’s 16,700 lawyers.

One of the results of the Bar Counsel submitting a “cost and expense” demand, was the requirement in SCR 3.370 that this demand by the Bar Counsel, must be paid or at least a 100% surety posted before the defendant attorney had the right to appeal their conviction to the Kentucky Supreme Court.

This strange rule (adopted in 1990) in effect gave the prosecutor the power to limit an attorneys right to appeal his ethics conviction.   LawReader has received reports that at least two attorneys could not afford the “cost bill” imposed on them, and were denied the right to appeal to the Supreme Court.

This week, after Deters filed a motion through his attorney Larry Forgy, demanding a hearing on the imposition of a “cost” bill of $52,900, the Board of Governors surprised everyone by actually granting a review of the Bar Counsel’s cost bill.   This is believed to be the first time that anyone challenged this rule.   The Board of Governors found on Nov. 18, 2011 that the claim of $44,000 for the outside legal fee of Stites and Harbison, authorized by the Bar Counsel, and included in her “cost” bill demand, was improper, and the Board disallowed that claim for $44,000.
Three days before the Board’s review of the cost bill imposed on Deters, the Kentucky Supreme Court met in a special session and amended the language in SCR 3.370 sections (6) and (8), and removed the language which mandated that “costs” claimed by the Bar Counsel must be paid before the defendant attorney had the right to appeal to the Supreme Court.

In deleting this provision in Section (8) the Supreme Court protected their right to determine who has the right to appeal.   This new amendment removed the power of the Bar Counsel to determine who could appeal to the Supreme Court.

In amending SCR 3.370(6) the Supreme Court also extended the time period in which the Board of Governors had to make a written ruling regarding their findings in ethics cases, from 30 days to 45 days.   Deters claimed that the written ruling in his case was filed by the Board of Governors five days late.  The new Section (6) will allow an additional l5 days for the Board to file their written findings.   Since the full Board of Governors only meets once a month, this amendment is certainly justified.   Whether this amendment will affect Deters claim of a late filing by the Board is yet to be determined.

The bottom line is that the Kentucky Supreme Court upon being informed of the abuse of SCR 3.370 by the Bar Counsel, acted very quickly and protected their constitutional right to determine who has the right to an appeal, and to protect the rights of attorneys to their constitutional right to have at least “one appeal”.

The action of the Board of Governors in denying the outside attorneys fee of $44,000 as a claim against Deters, suggests that the Board is not going to be a rubber stamp for the Bar Counsel.

These actions of the Supreme Court and the Board of Governors are a giant step towards granting due process and fairness to the enforcement procedures of the attorney discipline process.

More work must be done.  The Board of Governors, which is the administrator of the Bar Counsel’s office, should in our opinion clearly establish a policy which determines whether they will give the Bar Counsel a blank check to spend KBA funds at their discretion, to hire outside counsel without permission of the Board, and whether or not the Board will review procedures of the Bar Counsel’s office.

One might ask, why does the Bar Counsel need to hire outside counsel when they already have on their staff nine attorneys, numerous para legals and legal assistants.  If those staff members are not qualified to
handle motions in Federal Court perhaps the Board should use their clear authority to hire and fire employees of the Bar Counsel’s office, and to find some attorneys who have the talent to handle motions in the Federal Courts.

The KBA website indicates that one of the members of the Board of Governors is employed by Stites and Harbison.  It is not known by this author  if that Board member was present at the Nov. 18th. hearing on Deters motion regarding his objection to the $52,900 “cost” bill which included $44,000 for Stites and Harbisons work for the Bar Counsel’s office.

AMENDMENT OF SCR 3.370 (6) AND (8):

Section (6) grants the Board of Governors 45 days to issue a final written decision in discipline case.  This is an increase of l5 days.

Section (8) deletes the requirement that a defendant attorney cannot file an appeal of a Board’s Ruling to the Supreme Court until he has paid the “cost and expense” bill claimed by the Bar Counsel.

Other cases where constitutional review by the Federal Courts of State Bar Rules include Dan Taylor vs. the KBA, and Getty vs. Chief Justice Scott Reed.

Footnote:

The following cases establish the right of the Federal  Courts to review constitutional violations in State Bar Rules:
Getty v. Hon. Scott Reed, Chief Justice   413 F.Supp 511   Marcy 12, 1976

Dan Taylor III vs. Kentucky Bar Association   424 F.2d 478 (l970)

 

Monday, November 14th, 2011

SECTION 1983 – THE FEDERAL CIVIL RIGHTS ACT – DOES IT PROTECT ATTORNEYS?

Monday, November 14th, 2011

SECTION 1983 OF FEDERAL CIVIL RIGHTS ACT  – does it apply to Kentucky Attorneys?

Two Kentucky cases are currently
(Nov. 2011) before the 6th. Cirt. Court of Appeals due to rulings of U.S.
District Judge Danny Reeves of the Eastern Dist. of Kentucky

In both appeals, the Kentucky Bar
Association is alleged to have violated the constitutional rights of Kentucky
attorneys.  Judge Reeves dismissed both
complaints on the theory the federal courts have no jurisdiction to review the
denial of constitutional rights by the Kentucky Bar Association.

In the John M. Berry, Jr. case,
he was sanctioned for writing a letter to the Legislative Ethics Commission
questioning their legal reasoning. The BAR did not actually prosecute Berry,
but they investigated him for almost two years and failing to obtain a formal
charge, they placed a warning letter in his KBA personnel file.

He was warned by the Bar Counsel to limit his
exercise of his First Amendment rights.
Judge Reeves ruled that the federal courts have no jurisdiction to review
constitutional deprivation of an attorneys rights by state bar associations.
(??)

In Berry’s appeal to the 6th. Circuit
it is reported that the ACLU who is representing Berry, cited some 66 cases in
which the Federal Courts have granted review of constitutional violations by
state bar association.  Once such case
involved Marcus Carey who obtained a ruling from the 6th. Circuit to the effect
that Supreme Court Rules regarding conduct of judges, were
unconstitutional.  Apparently Judge
Reeves legal assistants failed to find any examples of federal courts allowing
the protection of Section 1983 rights for attorneys.

In the Eric Deters case, Judge
Reeves ruled that his court had no jurisdiction to review a recusal motion
which the Kentucky Chief Justice refused to consider, although the applicable
rule required the Chief Justice to “immediately” consider such
motions.  It is reported to LawReader
that Judge Reeves filed a complaint with the Ky. Bar Association due to the
fact that Deters sought constitutional rights protection in the federal
court.  The Bar Counsel has
“certified” a claim for $18,800 as their cost for defending the Bar
against Deter’s federal law suit.  The
Bar Counsel is seeking new sanctions against Deter’s for filing a lawsuit in
federal court seeking constitutional review.
The Bar Counsel did not wait for the ruling of the 6th. Circuit which is
still pending.   Some have viewed this
new charge against Deters, which was filed after his acquittal of most charges
they had against him, as punishment for challenging the Bar Counsel.

Deters motion for a recusal of the KBA Trial Commissioner alleged that
in the middle of the hearing the Trial Commissioner reported to the Deters that
his law partner took over the civil case in which Deters was alleged to have
charged an” exhorbitant fee of $1500″.  The complainant fired Deters and hired the
Trial Commissioner’s law partner.  The
Trial Commissioner’s law partner was paid $25,000 to complete the law suit.  The Trial Commissioner while he reported the
situation to Deters, refused to recuse himself.

Deters reports that he requested that the Bar Counsel provide him a
breakdown of the costs and expenses imposed upon him in the
“certifed” report, but the BAR has claimed he has no right to such an
accounting as that information is “confidential”.

In an encouraging and rational decision, the Board of Governor’s
recently agreed to review Deter’s request for an accounting of the cost and
expense bill.  Deter’s motion will be
heard on Nov. 18, 2011.

Our review of the Sup. Ct. Rules suggest that the Bar Counsel can
collect “costs and expenses” but that many Court rulings distinguish
“costs” as being different than “attorney fees”.  The rule does not mention the right of the
Bar Counsel to seek a refund of “attorney fees” in attorney
discipline actions.   The fact that
Deters was acquitted of l5 of l9 charges brought against him raises a due
process argument.

We have seen no justification for
a “cost” bill of $18,800 which the Bar Counsel assigned to their
defense of Deter’s federal lawsuit.
There was no trial, only a summary judgment motion which they quickly won.  $18,800
for defending against one motion????

CONSTITUTIONAL RIGHTS OF ALL
CITIZENS PROTECTED BY FEDERAL CIVIL RIGHTS ACT

42 U.S.C. § 1983 reads:[3]

Every person who under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, Suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial officer for an
act or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory
relief was unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be considered to be a
statute of the District of Columbia.

Section
1983 essentially made equitable relief available to those whose constitutional
rights had been violated by an actor acting under State authority. Normally
constitutional rights violations are remedied by specific performance including
injunctions by the courts. For example, if a person’s right to due process was
violated by a prison guard who was said to be acting under the authority of the
state, then that person could bring suit for monetary damages against the
prison guard. Without Section 1983, that person would have to seek an injunction
by the courts for the due process violation. The problem with such an action by
the court is that injunctions cannot apply to past harm, only future harm. So,
essentially the person would have an actionable cause-the constitutional
violation-with no adequate remedy. Most Section 1983 claims are brought against
prison officials by prisoners, but prisoner claims are usually dismissed as
being without merit. Claims can be brought by anyone stating a proper cause of
action.

Circumstances
changed in 1961 when the Supreme Court of the United States
articulated three purposes that underlay the statute: “1) ‘to override
certain kinds of state laws’; 2) to provide ‘a remedy where state law was
inadequate’; and 3) to provide ‘a federal remedy where the state remedy, though
adequate in theory, was not available in practice.’ “[4][5]

Now
the statute stands as one of the most powerful authorities with which state and
federal courts may protect those whose rights are deprived. Section
1983
of the Civil Rights Act provides a way individuals can sue to redress
violations of federally protected rights, like the First Amendment
rights and the Due Process Clause and the Equal Protection Clause of the Fourteenth
Amendment
of the United States Constitution. Section
1983
can be used to enforce rights based on the federal Constitution and
federal statutes, such as the prohibition of public sector employment
discrimination based on race, color, national origin, sex and religion.

In
some jurisdictions, 1983 has been applied directly to private employers when
litigants have sued under this act. It can also be applied in virtually all
jurisdictions in a more indirect manner to private employers if they are acting
under state or federal authority. For example, if an additional private
security company is hired by the police for an event and are given authority by
the police, and, during the event, the security company violates a
participant’s First Amendment
right, they can be sued under section 1983.

Although
some provisions were ruled unconstitutional in 1882, the Force Act and the Klan
Act have been invoked in later civil rights conflicts, including the 1964
murders of Chaney, Goodman, and Schwerner;
the 1965 murder of Viola Liuzzo; and in Bray v. Alexandria Women’s
Health Clinic
, 506 U.S. 263 (1993), in which the court ruled that
“The first clause of 1985(3) does not provide a federal cause of action
against persons obstructing access to abortion clinics.”

It was
also utilized in the 1969 case of Tinker v. Des Moines. By the time Beth
Tinker was in school, the law had expanded to make even school boards liable if
they stood in the way of people’s federally-protected rights.

Today,
the Civil Rights Act can be invoked whenever a state or local government
official violates a federally guaranteed right. The most common use today is to
redress violations of the Fourth Amendment’s protection against unreasonable
search and seizure. Such lawsuits concern false arrest and police brutality,
most notably in the Rodney King case.

The
Act was invoked in the 2010 Robbins v. Lower Merion School
District
case, where plaintiffs charged two suburban Philadelphia high
schools secretly spied on students by surreptitiously and remotely activating
webcams embedded in school-issued laptops the students were using at home,
violating their right to privacy. The schools admitted to snapping over 66,000
webshots and screenshots secretly, including webcam shots of students in their
bedrooms.[6][7]

 

THREATS TO JUDGES PROSECUTORS SOARING

Monday, November 14th, 2011

Threats against the nation’s judges and prosecutors
have sharply increased, prompting hundreds to get 24-hour protection from armed
U.S. marshals. Many federal judges are altering their routes to work,
installing security systems at home, shielding their addresses by paying bills
at the courthouse or refraining from registering to vote. Some even pack
weapons on the bench.

]The problem has become so pronounced that a high-tech “threat management” center recently opened in Crystal City, where a
staff of about 25 marshals and analysts monitor a 24-hour number for reporting threats, use sophisticated mapping software to track those being threatened and
tap into a classified database linked to the FBI and CIA.
“I live with a constant heightened sense of awareness,” said John R. Adams, a federal judge in Ohio who began taking firearms classes
after a federal judge’s family was slain in Chicago and takes a pistol to the courthouse on weekends. “If I’m going to carry a firearm, I’d better know how
to use it.”
Read entire article

Excerpt: ‘Don’t Vote It Just Encourages the Bastards,’ By P.J. O’Rourke

Sunday, November 13th, 2011

Oct.
22, 2010 —

 

In
P.J. O’Rourke’s new book, “Don’t Vote — It Just Encourages the Bastards,
” the satirist takes a look at national politics through the venerable
lens of a teenage party game to find an unsettling, and humorous, side of the
political machine.

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

When
I first began to think about politics — when mastodons and Nixon roamed the
earth — I was obsessed with freedom. I had a messy idea of freedom at the
time, but I had the tidy idea that freedom was the central issue of politics.

I
loved politics. Many young people do — kids can spot a means of gain without
merit. (This may be the reason professional politicians retain a certain
youthful zest; Strom Thurmond was the boyo right down to his last senile
moment.) I was wrong about the lovable nature of politics, and even at
twenty-three I probably suspected I was wrong. But I was sure I was right about
the preeminent place of freedom in a political system.

Freedom
is a personal ideal. Because politics is an arrangement among persons, we can plausibly
assume that freedom is a political ideal. Our favorite political idealists
think so. They’ve been unanimous on the subject since Jean-Jacques Rousseau
convinced polite society that human bondage was in bad taste and John Locke
showed the divine right of kings to be a royal pain.

The
signers of the Declaration of Independence declared us to be residents of
“Free and Independent States.” John Adams demanded, “Let me have
a country, and that a free country.” Tom Paine warned that “Freedom
hath been hunted round the globe.” And he exhorted us to “receive the
fugitive and prepare in time an asylum for mankind.” Calling America an
asylum may have been a poor choice of words, or not. Thomas Jefferson, in his
first inaugural address, preached “Freedom of religion; freedom of the
press, and freedom of person.” Jefferson was quite free with the person of
Sally Hemings. And a dinner toast from Revolutionary War general John Stark
bestowed upon New Hampshire a license plate motto that must puzzle advocates of
highway safety: “Live Free or Die.”

With
Bartlett’s Familiar Quotations as a useful gauge of what we think we think, we
find that Emerson poetized, “For what avail the plow or sail, or land or
life, if freedom fail?” Hegel weighed in, “The history of the world
is none other than the progress of the consciousness of freedom.” As
unlikely a character as the crackpot Nietzsche had something to say:
“Liberal institutions straightway cease from being liberal the moment they
are soundly established: once this is attained no more grievous and more
thorough enemies of freedom exist than liberal institutions.” The UN
Commission on Human Rights comes to mind.

We
can survey the arts, where mankind is most blatant in its truths, and find
artists taking the broadest liberties. (They are especially free with the use
of fate as a plot device.) We can peruse philosophy, where mankind is less
truthful, and not hear freedom denied by anything except free thinking.
Theology makes sporadic arguments against free will, with which the devout are
freely willing to concur. Science is deterministic and its special needs
stepsister social science is more so. But people are free to pick and choose
among the determinations of science until they find something they like. I give
you Al Gore and you can have him. Perhaps there are scientists who make a sound
case for the inevitabilities of biology and such. But we don’t know what these
geniuses are talking about and very likely neither do they. For example, the
important biologist Richard Dawkins has written a book, The God Delusion, in
which he uses predestinarian atheism to argue that Richard Dawkins is the
closest thing to a superior being in the known universe.

The
theoretical (as opposed to practical) enemies of freedom are feeble opponents.
And we are all but overrun by theoretical allies in freedom’s cause. We’ve got
collaborators in the fight for freedom that we don’t even want. “The
proletarians have nothing to lose but their chains” is the penultimate
sentence of the Communist Manifesto. And a creepy echo of it can be heard in
the refrain of Kris Kristofferson’s “Me and Bobby McGee.” Mao
announced, “Letting a hundred flowers blossom and a hundred schools of
thought contend is the policy …” Half a million people died in those
ellipses.

If
we were to give out the proverbial “a word to the wise,” the
sagacity-testing utterance with which to provide the sages would be
“freedom.” In the unabridged Oxford English Dictionary the noun has
fifteen definitions and the adjective “free” has thirty-six. These
definitions, along with their usage citations, occupy 189¼ column inches of
small and smaller type.

Peter
Roget (1779-1869), of Roget’s Thesaurus, was a physician, a scientist, the
secretary of the Royal Society for more than twenty years, and an exhaustingly
systematic thinker. He designed his thesaurus (Greek for “treasury”)
as a reverse dictionary. Instead of listing words and giving their meanings, he
listed meanings and gave words for them. Under the heading “freedom”
there are more than four hundred entries in twenty-one categories. And
“freedom” is only one of the twenty-three headings in Roget’s
“Section I, General Intersocial Volition” of “Division II,
Intersocial Volition” of “Class Five, Volition.” It’s hard to
know whether or not to be thankful that Peter Roget’s obsessive-compulsive
disorder meds hadn’t been invented.

Among
the various types and kinds of general intersocial volition, about ten have
something to do with political freedom.

freedom
in the abstract

autonomy

enfranchisement

toleration

frankness

leisure

laxity

abandon

opportunity

privilege

 

Several
of these may seem beside the point. But “frank,” for instance, is
from the Old French franc, meaning free. We can be frank with the president of
the United States. We can honestly and openly say what we think to him. And
what we think of him. But in all our name-calling the name we call our
president that sticks is “Mr.” He’s not “Your Excellency”
or “Your Highness,” nor do we kowtow, genuflect, or curtsy to him.
Callisthenes, the great-nephew of Aristotle, plotted to kill Alexander the
Great rather than prostrate himself in the Persian manner to the conqueror of
the known world. It’s probably just as well that our current president forgoes
even a handshake with Fox News.

Then
there are the freedoms of leisure, laxity, and wild abandon. Anyone who thinks
these have nothing to do with democracy hasn’t met the demos. Also, it was not
so long ago, during the great political demonstrations of the 1960s, that I was
risking my neck — well, risking a conk on the head and a snootful of tear gas
– in the battle to create a utopian society where I could lie around all day,
utterly heedless and high as a kite.

Freedom,
of course, may be considered as an abstraction. I was young enough to be highly
abstracted — not to say stoned — when I began to think about freedom. But I
wasn’t old enough to think. Therefore I can tell you nothing about my abstract
thinking on the subject. And so can’t a lot of other people, because there are
languages in which the word “freedom” doesn’t exist. (Not surprising
if you think about some of the places languages are spoken.) Richard Pipes,
emeritus professor of Russian history at Harvard, who is fluent in a number of
tongues himself, makes this point in his book Property and Freedom (a
perspicacious analysis of what the title says).

Professor
Pipes cites the work of M. I. Finley, preeminent historian of classical
antiquity (and, incidentally, a Marxist, something Richard Pipes is the
opposite of ). Finley wrote, “It is impossible to translate the word
‘freedom,’ eleutheris in Greek, libertas in Latin, or ‘free man,’ into any
ancient Near Eastern language, including Hebrew, or into any Far Eastern
language either, for that matter.” Indeed, when the Japanese first encountered
Western notions they were hard put to translate “freedom” and ended
up using the word jiyu, which means something like “getting jiggy with
it.”

Freedom
and liberty themselves don’t have quite the same meaning. “Free” is
derived from the Indo-European root pri, to love. The p becomes f in Germanic
languages, thus fri in Old German and freo in Old English. The original sense
of the adjective was “dear,” and it was used to describe those
members of a household who had a kinship relation to the master of the house.
Since at least the reign of King Alfred the Great, ruled 871-899, the primary
definition of “free” has been “not in bondage.” You’re free
because … Who loves ya, Baby?

Liberty
is probably the better word;(1) its source is in the Indo-European leudh,
“to mount up, grow.” Hence Latin for children, liberi, and German for
populace, Leute. We the people make leudh into eleutheris and libertas.

Yet,
the first definition of “liberty” in English is, once again,
“exemption or release from bondage.” Whatever we mean by our abstract
statements about freedom and liberty, the most meaningful thing we’re stating
is that mankind has a sickening history of slavery.

Enfranchisement
is the lively, fortunate, and honorable freedom, for the sake of which our
political ancestors pledged their lives, their fortunes, and their sacred
honor. Nothing concerning the goal of enfranchisement is ignoble except its
attainment. Among those who choose the congressmen, senators, and presidents of
the United States we now include people who are not considered mature and
responsible enough to have a beer. (If it’s any comfort, we should remind
ourselves of the purpose of voting. We don’t vote to elect great persons to
office. They’re not that great. We vote to throw the bastards out.)

Toleration
is the best comfort of a free life for most people most of the time, especially
if they experience as well as practice it. But tolerance is of minor interest
to politics. Politics aspires to a big, positive role in things. And the role
of politics in toleration is small except in the usually negative actions of
keeping the peace. Yet it was two consummate American politicians who supplied
us with a model for the universal formulation of tolerance: “Mind your own
business and keep your hands to yourself.” These may be rightly called the
Bill and Hillary Clinton Rules. Hillary, mind your own business. Bill, keep
your hands to yourself.

The
ontological freedom known as autonomy isn’t part of practical politics, it’s
all of practical politics — imposing my will and thwarting yours. If the
actions of mankind and the events of history turn out to have been foreordained
it will be a good joke on politics. This leaves us with the nub or butt end of
politicking: privilege and opportunity. Ignore everything politicians say about
opportunity. They’re lying. When politicians tout “opportunity”
either they are trying to help voters disguise an extortion as a gift or they
are the groom of government complimenting the bride of private property while
in bed with the socialist maid of honor. And ignore all of politicians’
sniffing at and scorn for privilege. Privilege and opportunity are the names
for rights — opportunity being rights you’d like to get and privilege being
rights you’d like someone else to surrender. A politician doesn’t ask if he may
have the privilege of a dance; he says he has a right to it.

*
* *

Our
gassing about our rights is almost equal to our gassing about our freedoms when
we’re bent over and puffed full of air concerning our form of government. We’re
inordinately proud of the Bill of Rights. But it’s an odd document.

The
First and Sixth Amendments are straightforward enough, reassuring us that we
may pray (OMG!), Twitter, kvetch, and be tried in the same court as O. J.
Simpson. And the Fifth Amendment says that when we screw up big time we don’t
have to give our version — like anybody’s going to believe us. But the Second
Amendment is woefully confusing. (Not that it confuses me about gun ownership,
in case you were considering a mugging to get my Jitterbug mobile phone.) The
principal right that the Second Amendment seems to guarantee is the right to be
a soldier. To judge by our various episodes of national conscription — Civil
War, World War I, World War II, Korea, Vietnam — this is a right we sometimes
have to force people to enjoy.

According
to the Third Amendment the Pentagon can’t just randomly send the U.S. Marines
to sleep on our fold-out couch. This is something that, as a home owner, you’d
think would be obvious. Although, in fairness, there are people elsewhere who
wish they had an amendment keeping the Marines out of their house.

The
Third Amendment and the Seventh Amendment (concerning jury appeals), are
undercut by weasel words: “but in a manner to be prescribed by law”
and “otherwise … than according to the rules of the common law.”
The Fourth Amendment (mandating warrants) and the Eighth Amendment (limiting
punishments) include strange pairs of modifiers — “unreasonable” and
“probable,” “cruel” and “unusual” — better
suited to a drunken description of my first marriage than to a sober writ of
law.

And
the message of the Ninth and Tenth Amendments is: You have other rights but you
have to guess what they are.

There
was opposition to the Bill of Rights. The modern mind expects it to have come
from slave owners. But this is too modern. Support for the first ten amendments
had little to do with dictionary definitions of freedom and liberty and a great
deal to do with qualms that old-line Revolutionary patriots — including Sam
Adams — had about the new federal government. Alexander Hamilton, who had
other qualms, made a case against the Bill of Rights in that supposed ur-text
of American freedoms The Federalist Papers, in number 84.

Hamilton
put forth various arguments opposing the addition of any bill of rights to the
U.S. Constitution. Some of the arguments were weak. Hamilton claimed that the
Constitution, as it was, affirmed and maintained the ancient protections of
individual liberty embodied in British common law. Maybe. But a less dangerous
and expensive way to retain British common law had been available in 1776.

Hamilton
claimed that previous, precedent-setting bills of rights, starting with the
Magna Carta, were merely bargains between a sovereign and his subjects about a
ruler’s prerogatives. Hamilton felt that no such sharp dealing and unseemly
horse trading was necessary in a social contract freely made among equals. But
if Nietzsche was right about what liberal institutions do once they’re
institutionalized — and there’s no evidence he wasn’t — then Hamilton was
wrong. And Hamilton believed the Constitution already included the most
important safeguards of freedom: establishment of habeas corpus, prohibition of
ex post facto laws, and a ban on titles of nobility. Hamilton was listing the
principal instruments in the tyranny tool chest of his era. He didn’t foresee
the future inventions of oppression such as ethnic cleansing, even though
ethnic cleansing of North America was well under way at the time the Federalist
essays were written.

But
Hamilton’s other objections to the Bill of Rights were prescient. Don’t give
the government ideas, he warned.

Why,
for instance, should it be said that the liberty of the press shall not be
restrained, when no power is given by which restrictions may be imposed? I will
not contend that such a provision would confer a regulating power; but it is
evident that it would furnish, to men disposed to usurp, a plausible pretense
for claiming that power. They might urge … the provision against restraining
the liberty of the press afforded a clear implication that a power to prescribe
proper regulations concerning it was intended to be vested in the national
government.

And
now we have not only the FCC’s naughty involvement in Janet Jackson’s wardrobe
malfunction but also the gross obscenities of binding and gagging displayed in
America’s campaign finance legislation.(2)

Hamilton
said that, in the matter of denying a right, “Who can give it any
definition which would not leave the utmost latitude for evasion?” Not
even God, if you note the various evasions practiced by believers since
Genesis. Hamilton said the true security of our freedom “must altogether
depend on public opinion, and on the general spirit of the people and of the
government.” Each of these can be rotten, and occasionally all of them
are. Such an occasion arose just seven years after the Bill of Rights was ratified.
The Sedition Act made it a federal crime to publish anything about Congress or
the president that would bring them into “contempt or disrepute.” In
other words, the Sedition Act made it a federal crime to publish anything about
Congress or the president.

Fortunately
the Bill of Rights is flawed in its treatment of only one type of rights –
opportunities. It doesn’t meddle with the other type — privileges. Perhaps
these two categories of rights should be known as “get-outa-here”
rights and “gimme” rights or, as they’re more usually called in
political theory, negative rights and positive rights. The Bill of Rights (and
“the idea of Freedom”) is concerned mostly with our liberty to say,
“I’ve got God, guns, and a big damn mouth, and if the jury finds me
guilty, the judge will pay my bail!” This is a negative right — our right
to be left alone, our freedom from interference, usually from government, but
also from our fellow citizens when they want us to sober up, quit yelling, put
the shotgun down, and go back into the house.

Politicians,
in their hearts, are always tepid supporters of get-outa-here rights. For one
thing, any and all legislators are being invited to leave. For another thing,
strict adherence to negative rights would leave little scope for legislating,
something legislators dearly love to do. Gimme rights are more politically
alluring. This is how we find ourselves tempted with positive rights to
education, housing, health care, a living wage, food relief, high-speed
Internet access, and all the kingdoms of the world, and all the glory of them.

Politicians
show no signs of even knowing the difference between negative and positive
rights. Blinded by the dazzle of anything that makes them popular, they
honestly may not be able to tell. But there’s evidence that a confusion of
negative and positive rights originally was presented to the public with malice
aforethought. President Franklin Roosevelt’s “Four Freedoms” appear
to be, at first glance, as natural, well matched, and tidy of composition as
the Norman Rockwell illustrations for them.

But
notice how the beggar, number 3, has been slipped in among the more respectable
members of the Freedom family. “Want what?” we ask ourselves.

Saying,
as Roosevelt did in his January 6, 1941, State of the Union address, that
“We look forward to a world founded upon four essential human
freedoms” and that one of these freedoms is “freedom from want”
was not an expression of generosity. Declarations of positive rights never are.
There were six million Jews in Europe who wanted nothing but a safe place to
go.

Politicians
are careless about promising positive rights and cynical about delivering them.
Positive rights themselves, in turn, are absurdly expandable.The government
gives me a right to get married. This shows I have a right to a good marriage,
otherwise why bother giving it to me? My marriage is made a lot better by my
children’s right to day care, so the brats aren’t in my face all day being
deprived of their right to a nurturing developmental environment. Every child
has the right to a happy childhood, so I have the right to happy children.
Richer children are happier. Give me some of Angelina Jolie’s.

The
expense of all this makes politicians glad. They get to do the spending. Even
negative rights aren’t free. They entail a military, a constabulary, a
judiciary, and a considerable expenditure of patience by our neighbors. But
positive rights require no end of money, and money is the least of their cost.
Every positive right means the transfer of goods and services from one group of
citizens to another. The first group of citizens loses those goods and
services, but all citizens lose the power that must be given to a political
authority to enforce the transfer. Perhaps such transfers could be made
voluntary. U.S. federal personal income tax receipts in 2008:
$1,426,000,000,000.

U.S.
charitable contributions in 2008: $307,700,000. Perhaps not.

When
rights consist of special privileges and material benefits, rights kill
freedom. Wrong rights are the source of political power. It’s not freedom but
power that is the central issue in politics. Only an idiot wouldn’t have seen
that. And I was one.

At
least I wasn’t alone. In the latter two-thirds of the twentieth century, most
of us who involved ourselves in democratic politics claimed that freedom was
what we were up to. We claimed it for more than fifty years, from the time of
our defeat in the Spanish civil war until the embarrassing moment when those
authoritarians Ronald Reagan and Margaret Thatcher led us to victory in the
cold war. Liberals, moderates, and even some conservatives considered the
sweeping positive rights created by a half century of social welfare programs
to be extensions of freedom, in the opportunity sense. People were being given
the opportunity to, you know, not starve to death and stuff.

This
wasn’t an evil way of looking at things. And not all the programs were bad. But
the electorate, the candidates, and we busybody pundits failed to properly
scrutinize social welfare programs. It’s not that we failed to examine whether
the programs were needed or superfluous or well or poorly run. What we failed
to look at was the enormous power being taken from persons and given to
politics. We insisted on seeing politics through the lens of freedom, as if
social legislation were a Polaroid print of quickly developing liberties. We
listened only to the freedom track on the electoral stereo. We predicted the
future of politics with a horoscope containing just the astrological sign
Libra.

We
weren’t exactly wrong. Living in the midst of the civil rights struggle, during
a cold war with one totalitarian ideology after a real war with another, we
understood the value of freedom and the ugly alternative to democracy. But we
didn’t — or didn’t want to — understand power. This was particularly true of
my age cohort, the baby boom, and particularly evident in the way we reacted
when politicians attempted to use their power to limit our freedom by
conscripting us into a war in Vietnam. We challenged the establishment by
growing our hair long and dressing like Bozo.

We’re
a pathetic bunch. And it didn’t start with the Beatles, marijuana, and the
pill. Recall the coonskin cap. I wore mine to school. Children of previous eras
may have worn coonskin caps but they had to eat the raccoons first.

*
* *

The
baby boom’s reluctance to attend to the issues of power resulted from the fact
that we had some. Freedom is power, after all.

And,
as for freedom, we were full of it. We were the first middle-class-majority
generation in history. We had the varieties of freedom that affluence provides,
plus we had the other varieties of freedom provided by relaxation of religious
convictions, sexual morality, etiquette, and good taste. The social
institutions that enforce prudence and restraint had been through a world war,
prohibition, depression, a world war part II, and Elvis. They were tired. We
were allowed to fall under the power of our own freedoms. And we powered
through them. Sixty years on we’re still at it, letting not age, satiety,
tedium, or erectile dysfunction stand in our way. Yet always at our back we
hear the nagging thought that power comes with responsibility.

We
don’t want that. Has there ever been a generation — a nation, a civilization
– more determined to evade responsibility? Probably.

The
ancient Romans sliced open animals and rum-maged in their kidneys and livers in
an attempt to avoid owning up to the consequences of empire and toga parties.
The Greeks were forever running off to hear the irresponsible babble of the
oracle at Delphi, the Larry King of her age. Maybe the Egyptians had an Oprah
barge on the Nile where deceased pharaohs could fall to pieces and promise to
become better mummies.

Nonetheless
we and our contemporaries in the developed countries of the Western world have
an impressive record of blame shifting, duty shirking, unaccountability, and
refusal to admit guilt or, better, to readily confess to every kind of guilt
then announce we’ve “moved on.”

A
gigantic global “Not My Fault” project has been undertaken with
heroic amounts of time, effort, and money devoted to psychology, psychotherapy,
sociology, sociopaths, social work, social sciences, Scientology, science,
chemistry, the brain, brain chemistry, serotonin reuptake inhibitors,
inhibitions, sex, sex therapy, talk therapy, talk radio, talk radio
personalities, personality disorders, drugs, drug-free school zones, Internet
addiction, economics, the Fed, PMS, SATs, IQ, DNA, evolution, abortion,
divorce, no-fault car insurance, the Democratic Party, diagnosis of attention
deficit disorder in small boys …The list goes on.

Neither
freedom nor power is what I should have been obsessed with for all these years.
But it’s too late now. I’m a child of my era. And speaking of that era, here
are three slogans from 1960s posters that never existed:

1.
But “freedom” is less highfalutin and more of an Americanism.
Theodore Parker, a prominent abolitionist, may be partly responsible for the
American usage. He is certainly responsible for the American definition of
democracy. Parker gave a series of speeches in Boston in the 1850s. Abraham
Lincoln’s law partner William Herndon attended one of these talks and gave the
following transcript to Lincoln, to obvious effect.

A
democracy — that is a government of all the people, by all the people, for all
the people; of course, a government of the principles of eternal justice, the
unchanging law of God; for shortness’ sake I will call it the idea of Freedom.

2. Although, as I write, the Supreme Court has overruled
some of this legislation. Corporations, as legal persons, turn out to have the
same rights to free speech as we personal persons. Corporations are people? Who
knew? This may explain how I got screwed by British Petroleum the other night
after a few too many drinks at the Capital Grille.

 

Law firm says all eyes on Missouri’s punitive damages cap – Are Damage Caps Unconstitutional?

Saturday, November 12th, 2011

November
11, 2011, St. Louis, Missouri…The Supreme Court of Missouri may soon decide the
fate of Missouri’s punitive damages cap, § 510.265 RSMo, observes Jessica J.
Hulting, a litigator at the Gallop law firm here.
On November 2, 2011, the Court heard oral arguments in Estate of Max E. Overbey and Glenna J. Overbey v.
Franklin, SC91369, wherein the Overbeys contend that a $1 million dollar
punitive award against former car dealer Chad Franklin, which was decreased to
$500,000.00 pursuant to the state’s punitive damages cap, should be reinstated
because the statute is unconstitutional.

Missouri law currently limits punitive awards to the greater of five times the actual damages or $500,000,
whichever is greater. However, in 2010, a jury in Clay County, Missouri,
awarded plaintiffs Max and Glenna Overbey $1.3 million in their suit against
National Auto Sales and its former owner Chad Franklin in North Kansas City
where the Overbeys had bought a car. Punitive damages comprised the largest
portion of that verdict: $1 million against Franklin and $250,000 against the
dealership for violating the Missouri Merchandising Practice Act (“MMPA”). The
jury awarded actual damages against Franklin of $4,500. Franklin’s punitive
award was later reduced by the trial judge to $500,000 pursuant to the cap and
the Overbeys appealed directly to the Supreme Court of Missouri.

Ms. Hulting, in summarizing key aspects of the case, observes, “The broad and ultimate question now in front of
the Missouri Supreme Court appears to be whether a low actual damage award
against a defendant could ever, statutory cap or not, support a large punitive
award even considering the reprehensibility of the defendant’s conduct.”

The Overbeys’ counsel contended before the Supreme Court of Missouri that § 510.265 is unconstitutional and
that the $1 million punitive award should be reinstated. Their counsel argued
that the cap violates the constitutional separation of powers; the Overbeys’
right to trial by jury; the Overbeys’ right to equal protection; the
prohibition against special legislation; the due process clause; and the
Overbeys’ right to open courts.

Ms. Hulting says, “The oral argument before the Missouri Supreme Court principally focused on whether §
510.265 violates the separation of powers doctrine and the Overbeys’ right to a
jury trial. Plaintiffs’ counsel argued that the statute usurps the judiciary’s
power by permitting the legislature to enact a procedural statute that
contravenes the constitution by depriving a plaintiff his/her right to a jury
trial. The arguments also focused on the fact that the actual damages awarded
stemmed from a legislatively created cause of action –MMPA — and that the cap
was also legislatively created.”

When considering the “check and balances” aspects of the matter, members of the Court inquired about what would
take place in the future if, without a statutory cap, the Court approved a very
high punitive damages award. Which branch would be the check on the judiciary?

Ms. Hulting observes, “Accordingly, the Missouri Supreme Court has an interesting opportunity to
decide the fate of the Missouri statutory punitive damages cap. The oral
argument elicited intelligent and balanced questions from the Court, which did
not suggest any clear consensus or direction on the outcome. Of course, the
Court has many options,” she says, including:

- It could decide to avoid the constitutional punitive damages issue altogether and find that Franklin did not
violate the MMPA.

- It could affirm the trial court’s rulings and reduced award under the cap.

- Alternatively, it could find that any one of the seven constitutional
arguments presented by the plaintiffs should prevail.

- Again avoiding the constitutional issue, the court could order the trial
court to consider further reduction of the punitive award.

More details on Overbey and Ms. Hulting’s further comments can be seen on the Gallop website www.GallopLaw.com.
Ms. Hulting can be reached at 314.615.6000.

Gallop, Johnson & Neuman,
L.C., a full service law firm of more than 65 attorneys, has provided legal
services to clients in diverse industries since its founding in 1976 and is one
of the largest law firms in St. Louis. The firm serves public corporations;
privately-held companies; entrepreneurs and start-up enterprises; individuals
and families; trustees and trust beneficiaries; charities; and non-profit
entities. For more information, contact Laura Callahan at 314.615.6000 or see
the website www.GallopLaw.com. Media contact: Jeff Dunlap at 314.993.6925.

The commentary above was
neither written nor intended by Gallop, Johnson & Neuman, L.C. to be
considered or interpreted as legal advice. It does not intend to predict any
outcome, or to contradict any outcome, in the case referenced above that may be
decided by the Supreme Court of Missouri. The choice of a lawyer is an
important decision and should not be based solely upon advertisements

 

MORE ABOUT “OBAMACARE” TYPE HEALTH INSURANCE PLAN ADOPTED BY CONGRESS IN 1798

Saturday, November 12th, 2011

 

NEWS: PRES. SIGNS H-CARE INSURANCE MANDATE-212 YEARS AGO!

Article by P.J. O’Rourke the conservative author and comedian

http://open.salon.com/blog/paul_j_orourke

Let’s begin today’s history lesson with the following news:

(CNN) — Officials from 14 states have gone to court to block the historic overhaul of the U.S. health care system
that President Obama signed into law Tuesday, arguing the law’s requirement
that individuals buy health insurance violates the Constitution.

Thirteen of those officials filed suit in a federal court in Pensacola, Florida, minutes after Obama signed the Patient Protection and
Affordable Care Act. The complaint calls the act an “unprecedented encroachment on the sovereignty of the states” and asks a judge to block
its enforcement.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and
legal residents have qualifying health care coverage,” the lawsuit states.

The history lesson

In July, 1798, Congress passed, and President John Adams signed
into law “An Act for the Relief of Sick and Disabled Seamen,” authorizing the
creation of a marine hospital service, and mandating privately employed
sailors to purchase healthcare insurance.

This legislation also created America’s first payroll tax, as a
ship’s owner was required to deduct 20 cents from each sailor’s monthly pay and
forward those receipts to the service, which in turn provided injured sailors
hospital care. Failure to pay or account properly was discouraged by requiring
a law violating owner or ship’s captain to pay a 100 dollar fine.

This historical fact demolishes claims of “unprecedented” and
“The Constitution nowhere authorizes the United States to mandate, either

directly or under threat of penalty…”

Perhaps these somewhat incompetent attorneys general might wish to
amend their lawsuits to conform to the 1798 precedent, and demand that the
mandate and fines be linked to implementing a federal single payer healthcare
insurance plan.

The other option is to name Presidents John Adams, Thomas
Jefferson, James Madison et al. in the lawsuits. However, it might be difficult
to convince a judge, or the public, that those men didn’t know the limits of
the Constitution.

Because the attorneys general research is obviously lacking a
comprehensive review of history and the Constitution, I’m providing a copy of
the 5th Congress’ 1798 legislation.

 

Because the attorneys general research is obviously lacking a comprehensive
review of history and the Constitution, I’m providing a copy of the 5th
Congress’ 1798 legislation.

CHAP. LXXVII – An Act for the Relief of Sick and
Disabled Seamen

Section 1. Be it enacted by the Senate and
House of Representatives of the United States of America in Congress assembled
-

That from and after the first day of September next, the master or
owner of every ship

or vessel of the United States, arriving from a foreign port into
any

port of the United States, shall, before such ship or vessel shall
be

admitted to an entry, render to the collector a true account of
the

number of seamen, that shall have been employed on board such
vessel

since she was last entered at any port in the United States,-and
shall

pay to the said collector, at the rate of twenty cents per month
for every

seaman so employed; which sum he is hereby authorized to retain
out

of the wages of such seamen.

SEC2. . And be it further enacted, That
from and after the first day

of September next, no collector shall grant to any ship or vessel
whose

enrolment or license for carrying on the coasting trade has
expired, a

new enrolment or license before the master of such ship or vessel
shall

first render a true account to the collector, of the number of
seamen,

and the time they have severally been employed on board such ship
or

vessel, during the continuance of the license which has so
expired, and

pay to such collector twenty cents per month for every month such

seamen have been severally employed, as aforesaid; which sum the said

master is hereby authorized to retain out of the wages of such
seamen.

And if any such master shall render a false account of the number
of men, and the length of time they have severally been employed, as is

herein required, he shall forfeit and pay one hundred dollars.

SEC3. . And be it further enacted, That
it shall be the duty of the

several collectors to make a quarterly return of the sums
collected by

them, respectively, by virtue of this act, to the Secretary of the
Treasury;

and the President of the United States is hereby authorized, out
of the same,
to provide for the temporary relief and maintenance of sick or

disabled seamen, in the hospitals or other proper institutions now
established

in the several ports of the United States, or, in ports where no

such institutions exist, then in such other manner as he shall
direct:

Provided, that the monies collected in any one district, shall be
expended

within the same.

SEC. 4. .And be it further enacted, That
if any surplus shall remain

of the monies to be collected by virtue of this act, after
defraying the

expense of such temporary relief and support, that the same,
together ,

with such private donations as may be made for that purpose (which
the

President is hereby authorized to receive) shall be invested in
the stock

of the United States, under the direction of the President; and
when,

in his opinion, a sufficient fund shall be accumulated, he is
hereby

authorized to purchase or receive cessions or donations of ground
or

provision for buildings,
in the name of the United States, and to cause buildings,

when necessary, to be erected as hospitals for the accommodation
of sick and disabled seamen.

SEC5. . And be it further enacted, That
the President of the United

States be, and he is hereby authorized to nominate and appoint, in

such ports of the United States, as he may think proper, one or
more

persons, to be called directors of the marine hospital of the
United

States, whose duty it shall be to direct the expenditure of the
fund

assigned for their respective ports, according to the third
section of this

act; to provide for the accommodation of sick and disabled seamen,

under such general instructions as shall be given by, the
President of

the United States, for that purpose, and also subject to the like
general

instructions, to direct and govern such hospitals as the President
may

direct to be built in the respective ports: and that the said
directors

shall hold their offices during the pleasure of the President, who
is

authorized to fill up all vacancies that may be occasioned by the
death

or removal of any of the persons so to be appointed. And the said

directors shall render an account of the monies received and
expended

by them, once in every quarter of a year, to the Secretary of the
Treasury,

or such other person as the President shall direct; but no other

allowance or compensation shall be made to the said directors,
except

the payment of such expenses as they may incur in the actual
discharge

of the duties required by this act.

APPROVED July16, 1798.

Here’s a link to more
details in another article on this subject written about how this act relates
to the issue of government single payer healthcare insurance.

 

More details about “Obamacare” type health insurance
mandate adopted in 1798 by U.S. Congress

NEWS: PRES. SIGNS H-CARE INSURANCE MANDATE-212 YEARS AGO!

Article by P.J. O’Rourke
the conservative author and comedian

http://open.salon.com/blog/paul_j_orourke

Let’s begin today’s history lesson with the following news:

(CNN) — Officials from 14 states have
gone to court to block the historic overhaul of the U.S. health care system
that President Obama signed into law Tuesday, arguing the law’s requirement
that individuals buy health insurance violates the Constitution.

Thirteen of those officials filed suit in a federal court in
Pensacola, Florida, minutes after Obama signed the Patient Protection and
Affordable Care Act. The complaint calls the act an “unprecedented
encroachment on the sovereignty of the states” and asks a judge to block
its enforcement.

“The Constitution nowhere authorizes the United States to
mandate, either directly or under threat of penalty, that all citizens and
legal residents have qualifying health care coverage,” the lawsuit states.

The history lesson

In July, 1798, Congress passed, and President John Adams signed
into law “An Act for the Relief of Sick and Disabled Seamen,” authorizing the
creation of a marine hospital service, and mandating privately employed
sailors to purchase healthcare insurance.

This legislation also created America’s first payroll tax, as a
ship’s owner was required to deduct 20 cents from each sailor’s monthly pay and
forward those receipts to the service, which in turn provided injured sailors
hospital care. Failure to pay or account properly was discouraged by requiring
a law violating owner or ship’s captain to pay a 100 dollar fine.

This historical fact demolishes claims of “unprecedented” and
“The Constitution nowhere authorizes the United States to mandate, either

directly or under threat of penalty…”

Perhaps these somewhat incompetent attorneys general might wish to
amend their lawsuits to conform to the 1798 precedent, and demand that the
mandate and fines be linked to implementing a federal single payer healthcare
insurance plan.

The other option is to name Presidents John Adams, Thomas
Jefferson, James Madison et al. in the lawsuits. However, it might be difficult
to convince a judge, or the public, that those men didn’t know the limits of
the Constitution.

Because the attorneys general research is obviously lacking a
comprehensive review of history and the Constitution, I’m providing a copy of
the 5th Congress’ 1798 legislation.

 

Because the attorneys general research is obviously lacking a comprehensive
review of history and the Constitution, I’m providing a copy of the 5th
Congress’ 1798 legislation.

CHAP. LXXVII – An Act for the Relief of Sick and
Disabled Seamen

Section 1. Be it enacted by the Senate and
House of Representatives of the United States of America in Congress assembled
-

That from and after the first day of September next, the master or
owner of every ship

or vessel of the United States, arriving from a foreign port into
any

port of the United States, shall, before such ship or vessel shall
be

admitted to an entry, render to the collector a true account of
the

number of seamen, that shall have been employed on board such
vessel

since she was last entered at any port in the United States,-and
shall

pay to the said collector, at the rate of twenty cents per month
for every

seaman so employed; which sum he is hereby authorized to retain
out

of the wages of such seamen.

SEC2. . And be it further enacted, That
from and after the first day

of September next, no collector shall grant to any ship or vessel
whose

enrolment or license for carrying on the coasting trade has
expired, a

new enrolment or license before the master of such ship or vessel
shall

first render a true account to the collector, of the number of
seamen,

and the time they have severally been employed on board such ship
or

vessel, during the continuance of the license which has so
expired, and

pay to such collector twenty cents per month for every month such

seamen have been severally employed, as aforesaid; which sum the said

master is hereby authorized to retain out of the wages of such
seamen.

And if any such master shall render a false account of the number
of men, and the length of time they have severally been employed, as is

herein required, he shall forfeit and pay one hundred dollars.

SEC3. . And be it further enacted, That
it shall be the duty of the

several collectors to make a quarterly return of the sums
collected by

them, respectively, by virtue of this act, to the Secretary of the
Treasury;

and the President of the United States is hereby authorized, out
of the same,
to provide for the temporary relief and maintenance of sick or

disabled seamen, in the hospitals or other proper institutions now
established

in the several ports of the United States, or, in ports where no

such institutions exist, then in such other manner as he shall
direct:

Provided, that the monies collected in any one district, shall be
expended

within the same.

SEC. 4. .And be it further enacted, That
if any surplus shall remain

of the monies to be collected by virtue of this act, after
defraying the

expense of such temporary relief and support, that the same,
together ,

with such private donations as may be made for that purpose (which
the

President is hereby authorized to receive) shall be invested in
the stock

of the United States, under the direction of the President; and
when,

in his opinion, a sufficient fund shall be accumulated, he is
hereby

authorized to purchase or receive cessions or donations of ground
or

provision for buildings,
in the name of the United States, and to cause buildings,

when necessary, to be erected as hospitals for the accommodation
of sick and disabled seamen.

SEC5. . And be it further enacted, That
the President of the United

States be, and he is hereby authorized to nominate and appoint, in

such ports of the United States, as he may think proper, one or
more

persons, to be called directors of the marine hospital of the
United

States, whose duty it shall be to direct the expenditure of the
fund

assigned for their respective ports, according to the third
section of this

act; to provide for the accommodation of sick and disabled seamen,

under such general instructions as shall be given by, the
President of

the United States, for that purpose, and also subject to the like
general

instructions, to direct and govern such hospitals as the President
may

direct to be built in the respective ports: and that the said
directors

shall hold their offices during the pleasure of the President, who
is

authorized to fill up all vacancies that may be occasioned by the
death

or removal of any of the persons so to be appointed. And the said

directors shall render an account of the monies received and
expended

by them, once in every quarter of a year, to the Secretary of the
Treasury,

or such other person as the President shall direct; but no other

allowance or compensation shall be made to the said directors,
except

the payment of such expenses as they may incur in the actual
discharge

of the duties required by this act.

APPROVED July16, 1798.

Here’s a link to more
details in another article on this subject written about how this act relates
to the issue of government single payer healthcare insurance.

 

http://open.salon.com/blog/paul_j_orourke

Let’s begin today’s history lesson with the following news:

(CNN) — Officials from 14 states have
gone to court to block the historic overhaul of the U.S. health care system
that President Obama signed into law Tuesday, arguing the law’s requirement
that individuals buy health insurance violates the Constitution.

Thirteen of those officials filed suit in a federal court in
Pensacola, Florida, minutes after Obama signed the Patient Protection and
Affordable Care Act. The complaint calls the act an “unprecedented
encroachment on the sovereignty of the states” and asks a judge to block
its enforcement.

“The Constitution nowhere authorizes the United States to
mandate, either directly or under threat of penalty, that all citizens and
legal residents have qualifying health care coverage,” the lawsuit states.

The history lesson

In July, 1798, Congress passed, and President John Adams signed
into law “An Act for the Relief of Sick and Disabled Seamen,” authorizing the
creation of a marine hospital service, and mandating privately employed
sailors to purchase healthcare insurance.

This legislation also created America’s first payroll tax, as a
ship’s owner was required to deduct 20 cents from each sailor’s monthly pay and
forward those receipts to the service, which in turn provided injured sailors
hospital care. Failure to pay or account properly was discouraged by requiring
a law violating owner or ship’s captain to pay a 100 dollar fine.

This historical fact demolishes claims of “unprecedented” and
“The Constitution nowhere authorizes the United States to mandate, either

directly or under threat of penalty…”

Perhaps these somewhat incompetent attorneys general might wish to
amend their lawsuits to conform to the 1798 precedent, and demand that the
mandate and fines be linked to implementing a federal single payer healthcare
insurance plan.

The other option is to name Presidents John Adams, Thomas
Jefferson, James Madison et al. in the lawsuits. However, it might be difficult
to convince a judge, or the public, that those men didn’t know the limits of
the Constitution.

Because the attorneys general research is obviously lacking a
comprehensive review of history and the Constitution, I’m providing a copy of
the 5th Congress’ 1798 legislation.

 

Because the attorneys general research is obviously lacking a comprehensive
review of history and the Constitution, I’m providing a copy of the 5th
Congress’ 1798 legislation.

CHAP. LXXVII – An Act for the Relief of Sick and
Disabled Seamen

Section 1. Be it enacted by the Senate and
House of Representatives of the United States of America in Congress assembled
-

That from and after the first day of September next, the master or
owner of every ship

or vessel of the United States, arriving from a foreign port into
any

port of the United States, shall, before such ship or vessel shall
be

admitted to an entry, render to the collector a true account of
the

number of seamen, that shall have been employed on board such
vessel

since she was last entered at any port in the United States,-and
shall

pay to the said collector, at the rate of twenty cents per month
for every

seaman so employed; which sum he is hereby authorized to retain
out

of the wages of such seamen.

SEC2. . And be it further enacted, That
from and after the first day

of September next, no collector shall grant to any ship or vessel
whose

enrolment or license for carrying on the coasting trade has
expired, a

new enrolment or license before the master of such ship or vessel
shall

first render a true account to the collector, of the number of
seamen,

and the time they have severally been employed on board such ship
or

vessel, during the continuance of the license which has so
expired, and

pay to such collector twenty cents per month for every month such

seamen have been severally employed, as aforesaid; which sum the said

master is hereby authorized to retain out of the wages of such
seamen.

And if any such master shall render a false account of the number
of men, and the length of time they have severally been employed, as is

herein required, he shall forfeit and pay one hundred dollars.

SEC3. . And be it further enacted, That
it shall be the duty of the

several collectors to make a quarterly return of the sums
collected by

them, respectively, by virtue of this act, to the Secretary of the
Treasury;

and the President of the United States is hereby authorized, out
of the same,
to provide for the temporary relief and maintenance of sick or

disabled seamen, in the hospitals or other proper institutions now
established

in the several ports of the United States, or, in ports where no

such institutions exist, then in such other manner as he shall
direct:

Provided, that the monies collected in any one district, shall be
expended

within the same.

SEC. 4. .And be it further enacted, That
if any surplus shall remain

of the monies to be collected by virtue of this act, after
defraying the

expense of such temporary relief and support, that the same,
together ,

with such private donations as may be made for that purpose (which
the

President is hereby authorized to receive) shall be invested in
the stock

of the United States, under the direction of the President; and
when,

in his opinion, a sufficient fund shall be accumulated, he is
hereby

authorized to purchase or receive cessions or donations of ground
or

provision for buildings,
in the name of the United States, and to cause buildings,

when necessary, to be erected as hospitals for the accommodation
of sick and disabled seamen.

SEC5. . And be it further enacted, That
the President of the United

States be, and he is hereby authorized to nominate and appoint, in

such ports of the United States, as he may think proper, one or
more

persons, to be called directors of the marine hospital of the
United

States, whose duty it shall be to direct the expenditure of the
fund

assigned for their respective ports, according to the third
section of this

act; to provide for the accommodation of sick and disabled seamen,

under such general instructions as shall be given by, the
President of

the United States, for that purpose, and also subject to the like
general

instructions, to direct and govern such hospitals as the President
may

direct to be built in the respective ports: and that the said
directors

shall hold their offices during the pleasure of the President, who
is

authorized to fill up all vacancies that may be occasioned by the
death

or removal of any of the persons so to be appointed. And the said

directors shall render an account of the monies received and
expended

by them, once in every quarter of a year, to the Secretary of the
Treasury,

or such other person as the President shall direct; but no other

allowance or compensation shall be made to the said directors,
except

the payment of such expenses as they may incur in the actual
discharge

of the duties required by this act.

APPROVED July16, 1798.

Here’s a link to more
details in another article on this subject written about how this act relates
to the issue of government single payer healthcare insurance.