Archive for January, 2012

Tennessee amends code of judicial conduct to require recusal of judges who receive campaign contributions from attorneys appearing before them.

Monday, January 30th, 2012

The Tennessee Supreme Court has taken steps to eliminate the influence of large campaign contributions in judicial races.

The new rule in Tennessee was inspired by the United States Supreme Court’s decision in Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252, 173 L.Ed.2d 1208, which  recognized the serious threats to public perceptions of judicial impartiality that arise when judges preside over cases involving campaign supporters.

The new rule may have gained even more importance with the ruling in Citizens United where the U.S. Supreme Court ruled that corporations had the same right as citizens to make campaign contributions.   The spectre of Super Pacs becoming involved in judicial elections by corporate interests including insurance companies is troublesome.

(Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876 (January 21, 2010), was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from placing limits on independent spending for political purposes by corporations and unions. The 5–4 decision originated in a dispute over whether the non-profit corporation Citizens United could air a film critical of Hillary Clinton, and whether the group could advertise the film in broadcast ads featuring Clinton’s image, in apparent violation of the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain–Feingold Act in reference to its primary Senate sponsors.)

The new rule was supported by the Brennan Center for Justice At Stake Campaign, by the Tennessee Bar Association and by Temple University among others.

BRENNAN CENTER FOR JUSTICE AT STAKE CAMPAIGN

October 31, 2011

Mike Catalano, Clerk

Tennessee Appellate Courts

100 Supreme Court Building

4017th Avenue North

Nashville, TN 37219-1407

IN RE: PETITION FOR THE ADOPTION OF AMENDED TENNESSEE CODE OF JUDICIAL CONDUCT TOGETHER WITH CHANGES IN RULES AND STATUTES

No. M2011-00420-SC-RL1-RL

Dear Mr. Catalano:

We write on behalf of the Brennan Center for Justice at N.Y.U. School of Law1 and the  Justice at Stake Campaign2 to comment on the new Tennessee Code of Judicial Conduct and

accompanying court rules proposed by the Tennessee Bar Association on February 25, 2011. We commend the Bar for its rigorous and meticulous study of the 2007 ABA Model Code

Footnote: *****************

1 The Brennan Center is a non-partisan public policy and law institute that focuses on

fundamental issues of democracy and justice. The Brennan Center’s Fair Courts Project works to preserve fair and impartial courts and their role as the ultimate guarantor of equal justice in the

country’s constitutional democracy. Its research, public education, and advocacy in this area focuses on improving selection systems (including elections), increasing diversity on the bench, promoting

measures of accountability that are appropriate for judges, and keeping courts in balance with other governmental branches.

2 Justice at Stake is a nationwide, nonpartisan partnership of more than 50 judicial, legal, and citizen organizations. Its mission is to educate the public and work for reforms to keep politics and

special interests out of the courtroom — so judges can do their job protecting the Constitution, individual rights, and the rule of law. The arguments expressed in this letter do not necessarily

represent the opinion of every Justice at Stake partner or board member.

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

of Judicial Conduct, and we believe the proposed new Tennessee Code of Judicial Conduct provides a strong foundation for the Tennessee Supreme Court as it considers changes to the existing Code of Judicial Conduct.

We therefore strongly urge the adoption of the proposed rules, and write to underline the importance of several elements of the proposed rules. First, we believe proposed Rule 2.11(A)(4) provides a promising solution to the problems

imposed by campaign contributions and independent expenditures in judicial elections. The rising costs of judicial elections across the country have created a need for rules that clarify when recusal is appropriate based on campaign spending. In the last decade, spending on state supreme court elections more than doubled, from $83.3 million in 1990-1999 to $206.9 million in 2000-2009. Of the 22 states that hold competitive elections for judges, 20 set alltime

spending records during the last decade. And in 2010, we saw this trend spill over from contested judicial elections into retention elections.

The United States Supreme Court’s decision in Caperton v. A.T. Massey Coal Co.3 recognized the serious threats to public perceptions of judicial impartiality that arise when judges preside

over cases involving campaign supporters. There, the Court ruled that due process required a justice to recuse himself when one of the parties had spent $3 million on independent expenditures to elect that justice. That $3 million exceeded the total amount spent by all of the justice’s other supporters, and by his campaign committee. The Court concluded that the spending created a “serious objective risk of actual bias.”4 With million-dollar judicial campaigns becoming the norm across the country, disqualification in cases where campaign spending raises reasonable questions about a judge’s impartiality has become imperative to preserving public confidence in the courts.

We endorse the Tennessee Bar’s proposed response to the problems posed by judicial campaign spending, and believe it represents a more effective approach than several existing rules.5 In particular, we believe it represents a preferable approach to that taken in the American Bar Association’s Model Code of Judicial Conduct. The Model Code contains a per se recusal rule, which requires disqualification when campaign contributions to a judge exceed a specified threshold amount. We believe this approach has several shortcomings not present in the rule proposed by the Tennessee Bar. First, the ABA rule fails to address the full array of campaign spending that occurs today. It applies only to contributions made directly to judicial candidates, not independent campaign expenditures, which account for a large portion of spending on judicial elections: in the most recent cycle, independent campaign spending in state high court elections—by definition uncontrolled by and

Footnote: *************

3 129 S. Ct. 2252 (2009).

5 See Adam Skaggs and Andrew Silver, Promoting Fair and Impartial Courts through Recusal

Reform 13-14 (Brennan Center 2011), available at http://www.brennancenter.org/recusal_reform

(describing Bar’s proposal as “very promising” and urging “[s]tates in which judges sit for elections

[to] adopt recusal rules patterned on” the Bar’s proposal).

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

unaccountable to candidates—represented nearly one of every three dollars spent.6 Second, pinpointing a per se campaign contribution limit in each state can be a daunting and insurmountable task, and any chosen number may prove to be far too high or too low.

Finally, the ABA’s automatic rule opens the door to gamesmanship by litigants who may attempt to engage in judge-shopping by making a disqualifying contribution to a disfavored judge.

The Tennessee Bar’s Proposed Rule 2.11(A)(4) avoids these pitfalls, and provides a promising solution to concerns campaign spending may raise about the impartiality of

Tennessee’s courts. By including contributions and other support, the rule adequately addresses both direct contributions to a judicial candidate and independent expenditures like

those that caused disqualification in Caperton. Additionally, by replacing a per se threshold with language requiring recusal where support gives rise to reasonable questions about a

judge’s ability to remain impartial, the rule avoids concerns of gamesmanship and judge shopping  that arise with the ABA Model Code. Finally, the comments to the proposed Rule

2.11(A)(4) guide both judges and litigants in its application, to avoid a flood of unnecessary requests and disqualifications. The factors listed in Comment 7, which mirror those the

Court described in Caperton, provide a workable set of guidelines for judges and litigants when confronting recusal questions related to campaign contributions.

We are also encouraged by Comment 5 to the proposed recusal rule, which asks judges to disclose on the record information they believe the parties might consider relevant to a

possible motion for disqualification. While we prefer statutory rules requiring judges and litigants to disclose all campaign contributions and expenditures, we are nevertheless

confident that judges in Tennessee will apply this directive fairly and faithfully.

Second, we strongly support proposed Rule 2.11(D) and the associated changes to the Tennessee Rules of Civil, Criminal and Appellate Procedure, which provide for written orders on recusal motions that state the reasons for the ruling, and which provide a process for litigants to obtain de novo review of recusal requests denied at the trial, appellate, and supreme courts.

One of the most criticized features of the recusal rules in many states is that the judge subject to a recusal motion has the unreviewable last word on whether to step aside. For many, it flies in the face of fundamental notions of disinterested, impartial decision-making to allow judges accused of bias to be the only ones who decide whether or not they are, in fact, subject to disqualification. De novo review of a recusal motion denied in writing promotes public confidence in the judiciary by ensuring that the final disqualification decision is made by a judge or group of judges who is impartial both in fact and in appearance.

Footnote: *************

6 See Adam Skaggs, Maria da Silva, Linda Casey and Charles Hall, The New Politics of Judicial

Elections 2009-2010 11 (Justice at Stake 2011), available at http://www.newpoliticsreport.org (noting

that outside groups accounted for 29.8 percent of all spending in the 2009-2010 supreme court

election cycle).

* * *

By providing independent, de novo review of denied recusal motions, Tennessee’s courts  would take an important step forward in promoting public confidence in their recusal

practices. And by adopting the proposed recusal rule on to campaign spending, Tennessee will take a significant step toward ensuring that the public believes decisions are reached

based on the facts and the law, not on which side provided the most support to the judge’s campaign. Together, these proposed rules, if adopted, will make important advancements

that help ensure the perception and reality of impartial justice in the state of Tennessee. We thank the Court for the opportunity to submit the comment, and for the reasons we

have outlined, we urge the Court to adopt each of the rules addressed above.

Respectfully submitted,

J. Adam Skaggs Bert Brandenburg

Senior Counsel Executive Director

Brennan Center for Justice Justice at Stake Campaign

161 Avenue of the Americas 717 D Street NW, Suite 203

New York, NY 10013 Washington, DC 20004

(646) 292–8331 (202) 588–9700

TENNESSEE BAR ASSOCIATION RECOMMENDATION TO AMEND JUDICIAL CODE OF CONDUCT

See: http://www.tba.org/judicialconductrules/TBAPetition_with_exhibits_022511.pdf

SUMMARY OF MAJOR SUBSTANTIVE CHANGES FROM THE CURRENT CODE OF JUDICIAL CONDUCT

Following are major changes the TBA suggests to the Court:

1. Prohibit judges who participate in judicial settlement conferences from presiding over the trial or other contested issues in that matter. The recommendation is for both a prohibition in Rule 2.6 and the Code of Judicial Conduct and an amendment Tennessee Supreme Court Rule 31, Section 20, because of the difficulties wrought by that process.

2. Adopt a limited exception to ex parte communications prohibitions for those

involved in drug and mental health courts. However, disqualification may be required. See Rule

2.9, Comment [4].

3. Provide greater guidance on judicial disqualification and recusal. Included are factors such as the levels of campaign support for the judge or the judge’s opponent, the timing of the support and independent expenditures. See Rule 2.11, Comment [7].

4. Require compliance with new procedures for motions to determine incompetence, disqualification and recusal.

5. Change the gift threshold for required reporting from $150 to $250. See Rule

3.15(2).

6. Consistent with recent constitutional decisions, significantly lessen the restrictions on campaign activities while making it clear that campaign committees and judges must fully comply with campaign finance disclosure statutes, and that such activities may lead to disqualification. See Rules 4.1, 2.11(d).

7. Include within the provisions related to judges’ families a person with whom

another person maintains a household and an intimate relationship other than a person to whom he or she is legally married. See Rule 2.11(d).

8. Clarify application of certain Code provisions to senior judges, part-time judges,

continuing part-time judges and pro tempore judges.

9. Clarify when judges may provide a reference or recommendation. Permit use of official letterhead when the reference is personal or is based on personal knowledge and is germane to the judge’s professional knowledge, such as writing a letter of recommendation for a law clerk. See Rule 1.3, Comment [2].

10. Clarify a judge’s responsibility to report violations of the Rules of Professional Conduct and the Code of Judicial Conduct by lawyers and judges, including reference to judicial assistance programs. See Rule 2.15.

11. Permit judges, spouses and guests to attend, free of charge, events associated with educational, civic, religious, fraternal and charitable organizations. See Rule 3.14, Comment [1].

12. Limit participation in activities of organizations which engage in political

advocacy in limited subject areas or consistently for one side in lawsuits. See Rule 3.7,

Comment [1].

13. Emphasize that judges must perform their duties promptly, as well as

competently, diligently and cooperatively. See Rule 2.5.

 

 

As detailed in the attached Exhibit E, The New Politics of Judicial Elections 2000 -2009, attempts to influence the outcome of judicial elections and, indeed, judicial decisions through campaign contributions have grown exponentially over the last decade. This issue came to a head in the case of Caperton v. Massey, 129 S.Ct. 2252, 173 L.Ed.2d 1208, in which the U. S. Supreme Court held that there is a Due Process dimension to disqualification considerations when there are massive campaign contributions. The TBA recommendation is first that the Code of Judicial Conduct be amended in Rule 2.11 and related comments to explicitly address campaign contributions in the context of disqualification.

WHEN DOES A POST-JUDGMENT MOTION NOT TOLL THE TIME FOR APPEAL? / By Dave Kramer

Monday, January 30th, 2012

By David Kramer | dkramer@dbllaw.com

 

The failure to meet the time deadline to file a notice of civil appeal after entry of a final judgment is one of the very few procedural mistakes a Kentucky civil litigator can commit that is uniformly fatal to the client’s case. Appellate lawyers know that the running of the 30-day time period within which a notice of appeal must be filed is automatically terminated by the timely filing of certain post-judgment motions and is restarted once the trial court enters an order ruling on such motions. Specifically, under CR 73.02(1)(e), a timely motion under CR 50.02 (motion for JNOV), CR 52.02 (motion to amend factual findings), CR 59.01 (motion for new trial), or CR 59.05 (motion to alter, amend or vacate a judgment) terminates the running of the 30-day time period.

 

However, a recent decision by the Kentucky Court of Appeals has put Kentucky litigators on notice that a motion made under one of those rules will not be treated as suspending the running of the appeal deadline if the motion lacks a statement of a legal basis containing some substance and specificity. In Matthews v. Viking Energy Holdings, LLC, 341 S.W.3d 594 (Ky. App. 2011), the Court of Appeals held that extending the time for filing a notice of appeal on the basis of a perfunctory, pro forma post-judgment motion would enable a party to unilaterally give itself an extension of time to file a notice of appeal. Relying on CR 7.02(1), which requires that a motion “state with particularity the grounds” on which relief is requested, the Court determined that a post-judgment motion lacking a statement of particular legal grounds is defective and incomplete and does not afford the trial court a meaningful basis or opportunity to review its decision. For these reasons the Court concluded that such a motion may not be used as a pretext for delaying the appeal deadline.

 

In light of this decision, counsel should be careful to state particular grounds for a post-judgment motion in order to suspend the running of the time limit to file a notice of appeal. Also, since some post-judgment motions (e.g., a CR 60.01 motion to correct a clerical mistake, or a CR 60.02 motion for relief from a judgment based on mistake, inadvertence, excusable neglect, newly discovered evidence, fraud, or other reasons of an extraordinary nature) do not suspend the time for filing a notice of appeal, counsel should be careful to specify under which rule a post-judgment motion is made.

 

NOTE: The foregoing post includes commentary reprinted from the forthcoming 2012 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2012 Thomson Reuters.

 

For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

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

Subscribe to the DBL Civil Litigation blog.

 

 

Selected pleadings and supporting documents filed by Chesley with Ky. Supreme court on January 25, 2012 asking for order allowing him to discovery information about the Ford distribution and names of attorneys who received distribution from Ford.

Sunday, January 29th, 2012

Selected pleadings and supporting documents filed by Chesley with Ky. Supreme court on January 25, 2012 asking for order allowing him to discovery information about the Ford distribution and names of attorneys who received distribution from Ford.

 

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

Motion Filed by Chesley with Ky. Supreme Court Seeking Discovery

 

Supreme Court Of Kentucky

201 1-SC-000382-KB

00-KBA-13785

 

KENTUCKY BAR ASSOCIATION COMPLAINANT

 

STANLEY CHESLEY RESPONDENT

 

MOTION FOR LEAVE TO SUPPLEMENT PENDING MOTION

TO ALLOW LIMITED DISCOVERY ON DEPRIVATION OF DUE PROCESS BY FILING

DISCOVERY REQUESTS RECENTLY FILED IN RELATED ACTIONS

 

May It Please The Court

 

The Respondent respectfully moves the Court for leave to file the attached

documçnts as Supplement to his Motion to Abate to Allow Limited Discovery on

Deprivation of Due Process Specifically the tendered filings demonstrate Respondents

efforts in other forums to obtain the discovery also sought by the motion pending in this

Court

 

The Court will recall that Respondent seeks to discover among other things

whether Angela Fords payments to co-counsel from funds she collected on the judgment against Gallion Cunningham and Mills in the Abbott case resulted in conflict of

interests that would have required Bar Counsel to recuse or otherwise impacted

Respondents due process rights in this case One such recusal has already occurred

in this case.

 

Afier Judge Messer had presided as Trial Commissioner at several days of

hearings in this discipline case counsel for Respondent discovered that member of

Judge Messers immediate family was an attorney in small law firm acting as co

counsel with Ms Ford in her efforts to collect the Abbott judgment Judge Messer

recused himself If member of the immediate family of Chief Bar Counsel or anyone

else associated with the KBAs efforts to punish Respondent for the criminal actions of

Gallion and Cunningham was also co-counsel to Ms Ford the failure to disclose that

information and make appropriate disqualifications would be deprivation of due process

requiring the decision below to be vacated for new trial Hence Respondent is

endeavoring to take discovery on that issue

 

Subsequent to filing the motion in the Court Respondent filed motion in federal

court seeking to unseal the accounting Judge Reeves ordered Ms Ford to render to the

U.S Attorney Judge Reeves confirmed that the accounting disclosed that Ms Ford

had shared fees with five other lawyers Despite the express language of Judge Reeves

prior Order however those lawyers were not named in the accounting and Judge Reeves

 

therefore decided that unsealing the document would not assist Respondents discovery

efforts See Order of January 2012 attached as Exhibit and Order of January 10

2012 attached

 

Shortly after the ruling by Judge Reeves Respondent filed Motion to Lift the

Discovery Stay in Mildred Abbott et all Stanley Chesley et al Case No 05-Cl-

00436 Boone County Circuit Court with accompanying discovery requests for the

purpose of discovering the facts related to Angela Fords execution upon the judgment

rendered in that case See Motion to Lift Discovery Stay attached hereto as Exhibit

with discovery pleadings attached That motion is noticed to be heard in Boone Circuit

Court by Special Judge Geoffrey Morris on March 2012

 

See Exhibit Respondents Motion for Reconsideration or Clarification is Attached as Exhibit

 

In sum Respondent is diligently pursuing discovery in other fornms while this

Court considers his pending motion for leave to take discovery in this case Accordingly

Respondent requests that the Court consider these supplemental materials attached as

Exhibits and and hold this case in abeyance pending the resolution of the

discovery previously filed with the Motion to Abate filed under seal with the Motion to

Abate Respondents Motion to Lift the Discovery Stay filed in Abbott and the

discovery requests served with the Motion to Lift the Discovery Stay in Abbott

Respondent would also emphasize that while this discovery is focused upon these

recent factual developments they are not the only due process issues presented by his

appeal in this case Those issues are filly briefed and need not be repeated here See

Brief for Respondent pp 86-90

 

DISCUSSION

Because discovery has been stayed in Abbott pending Gallion and Cunninghams

appeal of the civil judgment in that case now pending in this Court and because he has

not been provided copy of Ms Fords accounting filed in federal court Respondent

has been unable to date to discover the facts attendant to Angela Fords execution upon

the $42 million judgment obtained against William Gallion Shirley Cunningham and

Melbourne Mills G-C-M and whether it has connection to Bar Counsels termination

and these disciplinary proceedings Respondent however continues to diligently make

good faith attempts to discover the facts related to Fords execution upon the judgment on several fronts He filed motion to intervene in the federal criminal case against Gallion

and Cunningham in an attempt to receive copy of the accounting information filed

therein by Ms Ford He filed motion to lift the discovery stay imposed in Abbott when

G-C-M appealed the grant of summary judgment against them and the Abbott plaintiffs

cross-appealed the order denying partial summary judgment against Respondent.2 He

has noticed hearing on his motion to lift the discovery stay in Abbott at the earliest date

available March and filed proposed discovery requests with that motion.3

 

As recounted in the pending motion Ms Ford has been resisting the U.S

Attorneys request for information since February 2011 After Judge Reeves ordered Ms

Ford to file an accounting specifically including amounts paid to co-counsel as shared

fees Ms Ford vigorously resisted rendering full accounting of the funds collected in

satisfaction of the $42 million judgment which has caused many members of the Bar to

wonder what was being concealed from the public record in fen-phen related

proceedings Subsequent events raise those concerns to incredulity

 

It turns out that the accounting filed by Ford was anything but full and

complete because it assiduously avoids naming the lawyers paid by Ford Judge Reeves

Order required the accounting to name the lawyers with whom Ms Ford shared fees

Indeed her ongoing appeal to the Sixth Circuit emphasizes the fact that Judge Reevess

order requires disclosure of those names.4 After she filed the accounting under seal

she unsuccessfully sought stay from the Sixth Circuit of Judge Reevess second order

requiring the sealed accounting be turned over to the U.S Attorney Yet her

While the denial of the Abbott Plaintiffs motion for partial summary judgment against Respondent remains on appeal the Circuit Court retained jurisdiction to consider Respondents request to lift the discovery stay because the denial of summary judgment as to him was an interlocutory nonappealable order Bell Harmon 284 S.W.2d 812 814 Ky 1955 Roman Catholic Bishop of Louisville Burden 168 S.W.3d 414 419 Ky App 2004

 

It is well settled in this Commonwealth that the denial of motion for summary judgment is interlocutory and is not appealable.

 

Respondents proposed Interrogatories filed with the motion to lift the discovery include such noninvasive requests as Identify the total amount of all funds or property collected by you or your counsel in satisfaction of the judgment previously rendered in this litigation against the various Defendants Identify the total amount of funds distributed to Plaintiffs in this action Identify the attomey fees paid to your counsel Angela Ford from the funds collected in satisfaction of the judgment rendered against Defendants

Gallion and Cunningham in this litigation and Identify the attorney fees paid to counsel other than Angela Ford by you or Angela Ford either directly or indirectly through any third party for work in this litigation

 

Case No 11-6187 Document 00611143825

 

compliance with the order defiantly fails to disclose the names of the lawyers who

received fees from the collected fttnds The obvious question that needs to be answered

is why one would go to such extraordinary lengths to withhold the identities of those

lawyers from the public if that information were benign

 

All of this is relevant to these disciplinary proceedings because the employment

of Chief Bar Counsel with the Kentucky Bar Association was abruptly terminated only

one week afler Ms Ford rendered the accounting of the tbnds to the United States As

set forth in the Motion to Abate the circumstances attendant to the termination

including the fact she was not allowed to enter her office and the KBA reftisal to make

any comment concerning this abrupt termination of long term high ranking employee

have raised the question whether it was in any way related to the identity of the lawyers

with whom Ms Ford has shared fees in Abbott such as disclosing conflict of interests

that would have required Bar Counsel to recuse in these disciplinary proceedings As set

forth in the pending motion determining the identity of the attorneys who have received

money from Ms Ford and determining whether the undisclosed co-counsel arrangements in Abbott created conflict of interests that have deprived Respondent of his due process rights herein is clearly relevant to this appeal.5

 

Adding to this bona fide concern regarding possible conflict of interests is the

fact that this would be the second time conflict arose in Respondents case related to

Ms Fords fee sharing in Abbott Indeed two Trial Commissioners appointed herein

were recused for conflicts and Bar Counsel showed little concern for working to choose

If Bar Counsel deliberately withheld conflict of interest from any person this would be violation of the right to due process Cf Brady Maryland 373 U.S 83 87 1963 holding that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution Commonwealth Bussell 226 S.W.3d 96 99 Ky 2007 following Brady conflict-free Trial Commissioners.6 The second Trial Commissioner Hon Roderick Messer presided over Respondents disciplinary hearing for approximately five days before Respondent learned that the law firm of Judge Messers son was engaged as co-counsel in Ms Fords collection efforts

 

When confronted with the conflict Judge Messer belatedly recused himself and Respondents proceedings were continued for nearly year while new Trial Commissioner was appointed

 

Accordingly Respondent requests that this Court consider the attached

supplemental material and abate this matter pending resolution of not only the requests

for production of documents tendered with Respondents Motion to Abate but also his

Motion to Lift the Discovery Stay filed in Abbott and his subsequent receipt of responses

to those discovery requests Like the limited discovery filed with the Motion to Abate

this Abbott discovery is vital to ascertaining whether the facts related to Fords execution

upon the $42 million judgment obtained against G-C-M created conflict of interests that

would have deprived Respondent of his due process rights herein

 

CONCLUSION

 

For the foregoing reasons the Court should grant Respondent leave to file the

attached supplemental material enter an order requiring the KBA to respond to the

requests for production of documents tendered under seal with the Motion to Abate and

hold this case in abeyance to permit time for the parties answer the discovery filed with

the Motion to Abate and the discovery served with Respondents Motion to Lift the

Discovery Stay filed in Abbott The first Trial Commissioner Frank Doheny Jr recused due to his Cincinnati-based law firms many conflicts with Respondent

 

Respectily submitted

 

Sheryl Snyder

Griffin Sumner

Frost Brown Todd LLC

400 Market St 32nd Fl

Louisville KY 40202

Phone 502-589-5400

Fax 502-581-1087

Counsel for Respondent Stanley Chesley

 

CERTIFICATE OF SERVICE

 

It is hereby certified that on January 24 2012 copy of this Motion for Leave to

Supplement Pending Motion to Allow Limited Discovery on Deprivation of Due Process

by Filing Discovery Requests Recently Filed in Related Actions was mailed First Class

postage prepaid to Jane Herrick Deputy Bar Counsel Kentucky Bar Association 514

West Main Street Frankfort KY 40601 and Susan Greenwell Disciplinary Clerk

Kentucky Bar Association 514 West Main Street FrankfORT 40601

Counsel

StanleyM Chesley

 

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

 

UNITED STATES DISTRICT COURT Ecror

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

AT COVINGTON DEC 22-2011

 

UNITED STATES OF AMERICA

 

CLERK US DISTRICT COURT

Plaintiff

Case No 207-CR-00039-DCR

WILLIAM GALLION and

SHIRLEY CUNNINGHAM JR

Defendants

 

MOTION OF STANLEY CHESLEY FOR LEAVE TO INTERVENE

AND TO PROVIDE HIM WITH PREVIOUSLY SEALED FILING MADE

AVAILABLE ONLY TO THE UNITED STATES

 

Movant Stanley Chesley by counsel respectfully requests leave to intervene

in this criminal case for the limited purpose of moving the Court to permit the United

States Attorney to provide his counsel with copy of the accounting information filed by

Angela Ford on July 11 2011 DN 1289 made available to the United States by this

Courts Order of September 2011 DN 1303 and presumably tendered under seal to

the United States Attorney no later than November 2011 James Gary the undersigned co-counsel for Mr Chesley previously filed his pro so motion for leave to intervene in this case as member of the public for the sole purpose of seeking an Order from this Court granting the public access to this same accounting information

 

The Court denied Mr Garys motion in its Memorandum Opinion and Order dated September 2011 DN 1303 finding that Mr Gary failed to establish valid basis for making this information available to the public

 

Cse 207-cr-00039-DCR Doc 1318 Filed 12/22/Il Page of 12- Page ID 24132

 

Since the denial of this prior motion developments in Mr Chesleys disciplinary

matter have warranted the filing of the present motion which is now being filed for and

on behalf of Mr Chesley As referenced and argued below Mr Chesley and his

counsel sincerely believe that these developments constitute sufficient grounds and

basis to at least make the requested information available for private inspection by Mr

Chesley and his counsel and/or in the alternative available to the public

 

The public has right recognized at common law and protected by the First

Amendment to access these accounting records and preventing their disclosure does

not serve any important overriding interest here To the contrary the fundamental

policy interests of transparency openness and fairness in criminal proceedings

mandate disclosure to Mr Chesley either individually and/or as member of the public

since the accounting records in question could fundamentally affect the question of

whether Mr Chesley was deprived of his due process rights in his disciplinary case

prosecuted by the Kentucky Bar Association

 

INTRODUCTION AND BACKGROUND

 

Ford is the court appointed crime victims advocate in this case DN 54 She

also personally represents some but not all of the alleged victims in civil action in

Kentucky state court against the Defendants and Mr Chesley seeking damages related

to the settlement of the Guard fen-phen lawsuit the Abbott case1 In Abbott Ford

obtained summary judgment against William Gallion Shirley Cunningham and

Melbourne Mills G-C-M but was denied summary judgment as to Mr Chesley

Mildred Abbott et Melbourne Mills Jr et aL Boone circuit Court No 05-Cl-436

Cse 207-cr-00039-DCR Doc 1318 Filed 12/22/Il Page of 12- Page lD 24133

In Mr Chesleys pending disciplinary case Bar Counsel nonetheless sought an

order compelling Mr Chesley to pay $7.5 million to the Abbott plaintiffs despite the fact

that the plaintiffs motion for summary judgment against Mr Chesley was denied and

the Abbott action is still pending as to Mr Chesley

 

Meanwhile Ms Ford acting as victims advocate filed motion with this Court

seeking distribution of the funds in the U.S Marshals possession to the Abbott plaintiffs

in accordance with distribution orders entered by the Boone Circuit Court DN 1249

The Court granted Fords motion DN 1251

 

After the Court of Appeals vacated the summary judgment against G-C-M in the

Abbott case2 the United States asked Ford to provide full accounting of the funds

collected and distributed in Abbott including funds distributed to non-victims This

accounting would include information about the disposition of the funds Ford withheld as

her legal fees and fees shared with other unnamed lawyers Ford refused the request

and the United States sought relief from this Court DN 1283 This Court granted the

United States motion and directed Ford to provide full and complete accounting of all

funds collected by her in the civil action.. and not distributed to victims DN 1284

Ford filed lengthy objection to the Order DN 1286 and asked the Court to stay the

Order pending ruling on her objection DN 1287

 

The Court denied Fords motion to stay but amended its Order to reflect that all

information provided in response to the Order shall be filed under seal pending further

orders of the Court DN 1288 Ford filed her accounting under seal on July 112011

The court of Appeals of Kentucky correctly held that the order denying the motion for summary judgment against Mr. Chesley was not an appealable order Abbott Chesley No 2007-cA-002174

Slip Op Ky App Feb 2011

 

motion for discretionary review Is presently pending in the Kentucky

Supreme Court Abbottv Cheseey No 2011-Sc-000291-O Ky filed June 13 2011

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/il Page of 12- Page ID 24134

DN 1289 1290 The United States then filed motion for partial lift of the seal so

that it could access the information DN 1293 The undersigned counsel for Mr

Chesley moved to intervene pro so in this action and requested copy of the

accounting DN 1292

 

On September 2011 this Court denied the undersigned counsels pro se

motion but made the previously sealed filing available to the United States DN 1303

Ford appealed that order and on November 2011 the Court of Appeals denied

Fords motion to stay the September Order pending appeal On information and

belief Ms Ford rendered the accounting under seal to the United States Attorney no

later than November 2011

 

Approximately one week later Bar Counsel Linda Gosnells employment with

the Kentucky Bar Association was abruptly terminated The circumstances attendant to

the termination have raised the question whether it was in any way related to the

accounting rendered on November such as disclosing conflict of interest that

would have required Bar Counsel to recuse herself in Mr Chesleys still-pending

disciplinary proceedings.3 There is reason to believe that the accounting may disclose

conflicts of interest germane to the proceedings

 

Accordingly Mr Chesley hereby moves this Court to permit the United States

Attorney to provide his counsel under an appropriate protective order redacted copy

of the accounting that would identify only the attorneys who have received money from

Ford in the Abbott case in order that counsel may determine whether the co-counsel

See Andrew Wolfson Kentucky Bar Associations chief disciplinary counsel ousted THE COURIER JoURNAL Nov 21 2011

 

http//www.courierJournaLcon/apps/pbcs.dll/articIeAlD201 1311210104 last

visited 12/20/2011 attached as Exhibit

 

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/Il Page of 12- Page ID 24135

arrangements in Abbott created conflict of interests that would have deprived Mr

Chesley of his due process rights and required Bar Counsel to recuse in his disciplinary

matter warranting new trial under 8CR 3.400 In the alternative Mr Chesley moves

that this information be made available to the public at large

 

ARGUMENT

Fords accounting of funds should be provided to Mr Chesley

The public has right of access to criminal trials and records protected by the

First Amendment to the U.S Constitution Globe Newspaper Co Superior Court for

Norfolk County 457 U.S 596 603 1982 The public also has general common law

right to inspect and copy court records Nixon Warner Communications Inc 435

U.S 589 597 1978 It is clear that the courts of this country recognize general right

to inspect and copy public records and documents including judicial records and

documents Courier-Journal and Louisville Times Co Peers 747 S.W.2d 125 128

Ky 1988

 

Open access serves number of important functions As the Supreme Court

explained public access permits the public to participate in and serve as check upon

the judicial process an essential component in our structure of self-government

Globe Newspaper 457 U.S at 606 Openness in criminal proceedings enhances both

the basic fairness of the criminal trial and the appearance of fairness so essential to

public confidence in the system Press-Enterprise Co Superior Court 464 U.S 501

508 1984 Press-Enterprise Accordingly the press and the public have

See e.g Ganger Peyton 379 F.2d 709 4th dr 1967 prosecutors conflict of interest rendered conviction unconstitutional as deprivation of due process requiring new trial Nunn Commonwealth 896 S.W.2d 911 Ky 1995

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/11 Page of 12- Page lD 24136

 

…constitutional right of access that attaches where the information sought has historically

been open to the press and general public and where public access plays significant

positive role in the functioning of the particular process in question.. Press-Enterprise

Co Superior Court 478 U.S 1986 Press-Enterprise II

 

The right is not absolute but it is also not easily outweighed The presumption

of openness may be overcome only by an overriding interest based on findings that

closure is essential to preserve higher values and is narrowly tailored to serve that

interest The interest is to be articulated along with findings specific enough that

reviewing court can determine whether the closure order was properly entered Press-

Enterprise 464 U.S at 510

 

Fords accounting of funds she retained or distributed to other lawyers in the

Abbott case implicates larger issues of fairness openness and deprivation of due

process in connection with Mr Chesleys disciplinary proceedings and there is no

compelling reason to withhold that information from Mr Chesley as member of the

general public Mr Chesley needs access to the accounting to determine whether it

reveals any connection to the termination of Bar Counsels employment and whether

Bar Counsel had connection to Abbott such that she denied Mr Chesley due process

of law in prosecuting his disciplinary case while laboring under an undisclosed conflict of

interest

 

The circumstances surrounding the provision of the accounting to

the United States and Bar Counsels termination combined with Bar

Counsels prosecution tactics strongly suggest that Mr Chesley

may have been denied due process Approximately one week after the accounting was rendered to the United States Attorney Bar Counsels employment with the Kentucky Bar Association was

 

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/11 Page of 12- Page ID 24137

 

terminated This plainly raises questions whether the termination was in any way

related to the accounting such as disclosing conflict of interests that would have

required Bar Counsel to recuse in Mr Chesleys disciplinary case The unusual

circumstances attendant to the abrupt termination coupled with the refusal of the KBA

to make any public statement concerning the reasons for the termination5 have

resulted in the understandable inference that the termination was for cause and the

understandable concern that the cause could rise to the level of prosecutorial

misconduct in one or more pending discipline cases This is not idle speculation but

bona fide concern regarding whether there are facts which should be disclosed to Mr

Chesley so that he can ascertain whether his disciplinary proceeding was inherently

unfair and in violation of his due process rights.6

 

It has been widely reported and/or speculated that Bar Counsels overly

zealous prosecutorial tactics specifically including attempting to recover the fees of

outside counsel in lawyer discipline cases was factor in the termination of her

employment Those reports include the fact that on November 15 2011 the Supreme

Court of Kentucky amended 5CR 3.3708 to eliminate the requirement that lawyer

post bond in the full amount of the bill of costs served by the KBA as prerequisite to

appealing to the Court rule that required Mr Chesley to bond the unprecedented

$88579.62 bill of costs served by Bar Counsel in his case

 

See The Enquirer Bar Association denies request for information cINcINNATI NEWS Nov 25 2011 http//news.cincinnati.com/article/20111125/NEWS01 03/311250190/Bar-association-denies-request information last visited 12/20/2011 attached as Exhibit

 

If Bar counsel deliberately withheld conflict of interest from any person this would be violation of the right to due process Cf Brady Maryland 373 u.s 83 87 1963 holding that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution

Corn Bussel/ 226 S.W.3d 96 99 Ky 2007 following Brady

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/11 Page of 12- Page lD 24138

 

There is fine line between excessive zeal and prosecutorial misconduct

Moreover the improper practice of shifting legal fees to respondents in discipline cases

was done in Mr Chesleys discipline case Indeed Bar Counsel charged Mr Chesley

for legal fees that were incurred by the KBA in the criminal trial conducted by this Court

This is an example of the kind of conduct that may have factored into the termination of

her employment Specifically the bill of costs served upon Mr Chesley in his disciplinary case included $15,736.86 paid as fees to Jane Graham Lexington attorney apparently for attending and observing Mr Gallions criminal trial.7 The contemporaneous invoices

from attorney Graham were so severely redacted that it is unclear what services were

rendered for which the KBA paid $15736.86 The legal services rendered by Ms

Graham were subsequently explained in two letters from Ms Graham to Ms Gosnell

written in June 2011 two years after the fees had been paid by the KBA One of the

letters tersely explained that Ms Grahams services had been rendered in connection

with Ms Gosnells appearance as witness in the federal prosecution of Gallion and

Cunningham.8

 

Significantly Jane Graham was also appointed as special prosecutor Special

Bar Counsel in the pending discipline case against former KBA President Barbara

Bonar the pendency of that case has previously been confirmed publicly by the KBA

pursuant to SCR 3.1502biQ.9 On information and belief and from what is

 

The U.S Attorney stated in her brief to the Sixth Circuit on Gallions appeal that Mr chesley was never target in this criminal mailer

See June 2011 letter from Graham attached as Exhibit

See Exhibit

 

Ms Gosnell appropriately recused herself and her office In the Bonar discipline case

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/il Page of 12- Page lD 24139

otherwise patently obvious counsel concludes that Ms Bonars lawyer discipline case

is being held in abeyance pending resolution of her civil lawsuit against Mr Chesley

presently pending before the Supreme Court of Kentucky.1 It is standard practice for

lawyer discipline cases to be held in abeyance pending resolution of related civil

litigation Indeed counsel for Mr Chesley are unaware of any previous discipline case

that was not stayed in those circumstances

 

Nevertheless Bar Counsel strenuously resisted Mr Chesleys motions to hold

his disciplinary case in abeyance pending resolution of the closely related Abbott case

Despite the fact that Bar Counsel seeks restitution of $7.5 million using the Abbott case

as the vehicle Mr Chesleys discipline case has not been stayed pending the outcome

of that closely related civil litigation The disparate treatment of Mr Chesley and Ms

Bonar his civil litigation adversary effectuated by the special prosecutor in Ms

Boners discipline case whose legal fees in the prosecution of Mr Gallion are being

charged to Mr Chesley in his disciplinary case is troubling and possibly emblematic of

larger conflict of interest that has deprived Mr Chesley of his due process rights

There is no overriding interest at stake here that should prevent the disclosure

of the accounting to Mr Chesley under protective order Mr Chesley does not simply

seek the disclosure of the accounting to the general public Providing the accounting

only to him with strictures on its use will not run counter to 18 U.S.C 3664d4s

direction to maintain the privacy of records filed pursuant to orders of restitution to the

greatest extent possible Mr Chesley needs access to the accounting to determine

whether it reveals any connection to the termination of Bar Counsels employment and

Bonar Chesley No 2010-SC-00087-DR Ky filed Feb 11 2010 fee dispute arising out of the covington Archdiocese class action

 

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/il Page 10 of 12- Page lD

24140

 

whether Bar Counsel denied Mr Chesley due process of law in prosecuting his

disciplinary case while laboring under an undisclosed conflict of interest

II Mr Chesley has standing to intervene for this limited purpose

Intervention is the appropriate procedure by which to raise this issue with the

Court It is well settled that members of the press and public have right to intervene in

judicial proceeding for the limited purpose of opposing the closure of court records

and proceedings As the Supreme Court recognized of the press

and general public must be given an opportunity to be heard on the question of their

exclusion Globe Newspaper 457 U.S at 610 n.25 citation omitted and see e.g

Application of Storer Communications Inc 828 F.2d 330 335 6th Cir 1987

recognizing that public has legitimate interest in criminal proceedings.. and

thus media organizations may move to intervene for the purpose of contesting closure

of hearings and the sealing of documents

 

Indeed public standing to intervene for this purpose is necessary because the

publics right of access may at times be at odds with the desires of the parties to the

case As one court explained Since by its nature the right of public access is shared

broadly by those not parties to the litigation vindication of that right requires some

meaningful opportunity for protest by persons other than the initial litigants some or all

of whom may prefer closure Appilcation of The Herald Co 734 F.2d 93 102 2nd Cir

1984

 

Mr Chesley as public citizen has standing to assert the publics interest in

openness of the criminal process and the publics rights to access the accounting filed

by Ford and provided to the United States

 

10 Case 207-cr-00039-DCR Doc 1318 Filed 12/22/il Page II of 12- Page ID

24141

 

CONCLUSION

 

The right of public access to criminal trials and records is fundamental to the

operation of our criminal justice system The fundamental policy interests of

transparency openness and fairness in criminal proceedings mandate disclosure to Mr

Chesley not only as member of the public but because the accounting records in

question could fundamentally affect the question of whether Mr Chesley was deprived

of his due process rights in his disciplinary case prosecuted by the Kentucky Bar

Association Bar Counsel was terminated mere week after the accounting was

rendered to the United States Attorney which raises serious questions about the

correlation of the accounting to the termination and whether the accounting discloses

conflict of interests that would have required Bar Counsel to recuse in Mr Chesleys

disciplinary case or in any other matter stemming from Guard

 

WHEREFORE Movant Stanley Chesley by counsel respectfully requests

that the Court grant his motion and enter the tendered proposed Order directing the

United States to provide his counsel with properly redacted copy of the accounting

filed by Angela Ford upon entry of an agreed protective order

 

Respectfully submitted

James Gary

Weber Rose PSC

471 West Main Street

Suite 400

Louisville Kentucky 40202

Phone 502 589-2200

Fax 502 589-3400

E-mail iqarvweberandrose.com

Counsel for Stanley Chesley

ii

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/Il Page 12 of 12- Page ID

24142

CERTIFICATE OF SERVICE

HEREBY CERTIFY that on December 21 2011 conventionally filed via

overnight courier the foregoing with the Clerk of the Court and personally served all

parties and persons of record by placing copy of same in the Mail postage

prepaid and addressed to

Kenyon Meyer Esq

Stephen Mattingly Esq

Dinsmore Shohl LLP

101 Street

Suite 2500

Louisville KY 40202

Counsel for Angela Ford

Kerry Harvey Esq

United States Attorney

By Cheryl Morgan Esq

Assistant United States Attorney

260 Vine Street Suite 300

Lexington KY 40507

Counsel for United States of America

Wade Thomas Napier Esq

Assistant United States Attorney

260 Vine Street Suite 300

Lexington KY 40507

Counsel for United States of America

Dennis Alerding Esq

Alerding Law Office

303 Greenup Street

Suite 300

Covington KY 41011

Counsel for Shirley Cunningham Jr

Louis Sirkin Esq

Jennifer Kinsley Esq

Sirkin Kinsley

810 Sycamore Street Floor

Cincinnati OH 45202

Counsel for William Gal/ion

James Gary

Counsel for Stanley Chesley Esq

 

News release reported where KBA denies open-records request by Chesley.

Bar association denies request for information

 

CINCINNATI.Com

The Kentucky Bar Association has denied an open records request from The

Enqufrer asking for the reason for the sudden departure of its chief counsei

interim Chief Bar Counsel Jay Garrett cited 1991 attorney generals opinion stating

the association isnt subject to the Open Records Act in letter denying the

newspapers request

 

The opinion states that the association Is governed by the Kentucky Supreme Court

and receives no tax dollars The association operates as nonprofit and is

funded through mandatory membership fees for lawyers totaling $3.8 million

annually

 

Follow NKY news on Twitter and on

Facebook

 

Linda Gosneil Its chief ethics prosecutor was paid $118500 per year and had

been with the organization since January 2002

 

Her tenure included the years the association struggled to build cases to

disbar Cincinnati lawyer Stan Chesley and discipline Independence lawyer Eric Deters

Both disciplinary actions are pending before the state Supreme Court

 

Chesley motion for clarification to Federal Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

AT COVINGTON

UNITED STATES OF AMERICA

Plaintiff

Case No 207-CR-00039-DCR

ELECTRONICALLY FILED

WILLIAM GALLION et

Defendants

 

MOTION FOR RECONSIDERATION OR CLARIFICATION

 

May it please the Court Based upon the Motion filed by the U.S Attorney and the correspondence with Angela Ford attached as exhibits to that Motion counsel for Mr Chesley understood that the accounting filed by Ms Ford identified by name the attorneys with whom she shared fees

 

The Courts Opinion could be read as stating that the accounting does not contain the names of any lawyers other than Ford but names only banks If so the question remains whether any of the accounts are accounts of lawyers other than Ms Ford Because Mr Chesley is seeking to obtain discovery in other forums of potential conflicts of interest between lawyers collecting on the Abbott judgment and the Office of Bar Counsel that information would be very significant and could be disclosed without implicating 18 USC 3664d4

 

If the accounting contains the names of attorneys Movant respectfully requests the Court to reconsider its decision for the reasons set forth below If the Court declines to reconsider its decision

 

Movant respectfully requests that the Courts Opinion be clarified to state

unambiguously whether or not the accounting contained the names of the lawyers so that there is clear record for appellate review

 

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24179

 

The governments Motion specifically says While the distribution grids show for

example that Ford collected $13277216.00 in legal fees no information was provided to the government regarding the continued existence of these funds or their location 1283 pp 3-

This statement refers to the correspondence attached as exhibits to the Motion For example in the February 16 2011 letter to Ms Ford the Assistant United States Attorneys referred to Ms Fords fee sharing agreements (ruling) stating that it is essential that the government be given complete accounting of all funds distributed pursuant to fee agreements to DN 1283 This statement was repeated in March 16 2011 e-mail to Ms Ford to DN 1283

 

As we indicated the government must have complete accounting of all funds

distributed pursuant to fee agreements Again in March 23 2011 letter to Ms Ford

the Government requests complete accounting from your office regarding all funds

distributed pursuant to fee agreements to DN 1283

 

That letter went on to say ..

 

Primarily we need to know the status of funds collected pursuant to your contingent fee

agreements Id

 

These statements by the Assistant United States Attorneys would seem to refer to Ms

Fords statements quoted by the news media that she had retained $13 million as legal fees under her contingency fee agreements and that she had disbursed some of those funds to co-counsel ‘’

 

For example in an article published on September 2009 the reporter wrote that Ford has

been paid about $7.5 million so far although part of that has gone to other lawyers who

assisted her Andrew Wolfson Attorney toppled diet-drug case Goliaths THE LOUISVILLE COURIER-JOURNAL Sept 2009 at http//www.cuurier-juurnal .com/article/20090907/news50

909080301 /attomey-toppled-diet-drug-case-Golith emphasis added

 

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24180

 

Indeed in her Objection to the governments Motion Ford said the specific target of

the United States motion amounts paid to Ford and other attorneys 1286

18 emphasis added

 

The foregoing explains why the Reply filed on January for the Movant stated that

information Mr Chesley seeks is the identity of the lawyers to whom Ms Ford has distributed funds as legal fees and the amounts distributed to those lawyers The remainder of her accounting may be redacted or otherwise withheld from production to Mr Chesley if it impacts anyones privacy 1324 p.1

 

However the Court and counsel seem to be saying although it is not entirely clear to

counsel for Movant that the names of Ms Fords co-counsel who received payments from her are not included in the accounting Ms Ford rendered to the United States Attorney

 

For example the Memorandum Opinion and Order states that Ms Ford is correct that the

accounting would not provide Chesley with the information he is seeking to obtain 1325

The Court seems to be referring to the Response filed for the United States which

opposed intervention because disclosure of the accounting would not assist Movant for the purpose stated in his motion 1323 The Response filed by Ford merely states

obliquely that the accounting initially filed by Ford and disclosed to the government in early November contained the names of banks 1322

 

The question whether the other attorneys names are included in the accounting is highly

relevant to this Courts reliance upon 18 U.S.C 3664d4 If the accounting contains only an accounting of the funds collected which have not been distributed to anyone and remain on hand for distribution to the victims together with related banking information that would explain the

 

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24181

 

Courts reliance upon 3664d4.1 However if the accounting identifies the lawyers to whom Ms Ford has distributed funds collected in execution of the Abbott judgment then Movant respectfully suggests that 3664d4 is inapplicable and that the Court should reconsider its Opinion Section 3664a-d relate solely to the portion of the presentence report that contains information sufficient for the court to exercise its discretion in fashioning restitution order 18 U.S.C 3664a

 

The report shall include to the extent practicable complete accounting

of the losses to each victim any restitution owed pursuant to plea agreement and information relating to the economic circumstances of each defendant Section 3664d2Avi requires the probation officer to notify the victims of the opportunity of the victim to file with the probation officer separate affidavit relating to the amount of the victims losses subject to restitution Section 3664d3 requires the defendant to prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant including complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested It is this information pertaining to the victims losses and the defendants assets to which 3664d4 applies when it provides..

 

The privacy of any records filed or testimony heard pursuant to this section

3664 shall be maintained to the greatest extent possible and such records may

be filed or testimony heard in camera

Section 3664d4 emphasis added

 

In the matter presently before the Court the funds were collected by execution upon

judgment rendered by Kentucky state court in the Abbott civil proceeding The lawyers paid themselves the amount to which they deemed they were entitled pursuant to their contingency Movant notes that the Order entered on June 29 2011 appears to be more narrowly drawn than the governments Motion by ordering Ms Ford to provide full and complete accounting of all funds collected by her in the civil action and not distributed to victims 1284.1

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24182

 

fee contracts with their clients Information pertaining to the payments made by the lawyers to themselves from funds collected in execution upon civil judgment is simply not within the contemplation of 3664d4 Accordingly if the lawyers names are contained within the accounting rendered by Ms Ford to the United States 3664d4 does not provide basis for overcoming the public’s First Amendment right to access the court records In sum if the names of the lawyers to whom Ms Ford paid legal fees are included in the accounting then the Court should reconsider its decision If the Court declines to reconsider its decision the Court should clarify its Opinion to expressly say whether the accounting includes those lawyers names in order to provide clear record for appellate review Such clarification would be consistent with the requirement that an order sealing court records be accompanied by findings of fact made with particularity demonstrating why the interests are deemed sufficient to override the publics right to know See e.g Press-Enterprise Co Superior Court of Caltfornia Riverside County 464 U.S 501 510 1984 Brown Williamson Tobacco Corp Fed Trade Commn 710 F.2d 1165 1176 6th Cir 1983

 

Respectfully submitted

Is/ Sheryl Snyder

Sheryl Snyder

Frost Brown Todd LLC

400 West Market St 32nd Floor

Louisville KY 40202

502 589-5400/502 581-1087

ssnyderthtlaw.com

 

James Gary

Weber Rose PSC

471 Main St Suite 400

Louisville KY 40202

502 589-22001502 589-3400

garyZIweberandrose.com

Counsel for Stanley Chesley

 

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24183

 

CERTIFICATE OF SERVICE

hereby certify that on January 2012 electronically filed the foregoing Motion for

Reconsideration or Clarification with the Clerk of the Court by using the CM/ECF system which will send notice of electronic filing to registered ECF participants

Is Sheryl Snyder Counsel for Stanley Chesley

LOULibraryOl 18087.0571145 1192294v3

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

Order of Judge Reeves describing what accounting has been provided, and denying further clarification of prior order as requested by Chesley.

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

at Covington

UNITED STATES OF AMERICA

Plaintiff Criminal Action No 07-39-DCR

WILLIAM GALLION et al ORDER

Defendants

 

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

Filed with the Court under Seal No 1289 The information provided in this document

was actually less than its heading would indicate The document contains four paragraphs in which Fords counsel Kenyon Meyer of the firm Dinsmore Shohl LLP incorporates information previously filed in the record of this proceeding acknowledges that certain sums collected in the state action captioned Abbott et cxl Chesley et Commonwealth of Kentucky Boone Circuit Court Civil Action No 05-CI-00436 are being held in escrow for the benefit of the Abbott plaintiffs and iii identifies the generic names of five banks where remaining funds are located No other account information is provided

 

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

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

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

 

While movant Chesley might speculate that this indicates or in some way proves some sinister action by Ford taken in conjunction with former counsel for the Kentucky Bar Association the Court does not engage in such (…) speculation Quite simply the document which is the subject of the current motion does not provide any further information and former counsel for the IKBA has not been identified or referenced in any way

 

Accordingly it is hereby ORDERED that the Motion for Reconsideration or Clarification No 1326 is DENIED

 

This 101h day of January- 20t2

Signed By

(Judge) Danny C.Reeves

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

Interrogatories submitted to Boone Circuit Court with motion to allow Chesley to submit them….

COMMONWEALTH OF KENTUCKY

BOONE COUNTY CIRCUIT COURT

54Th JUDICIAL DISTRICT

CASE NO 05-CI-00436

MILDRED ABBOTT et al PLAINTIFFS

STANLEY CHESLEY et al DEFENDANTS

 

DEFENDANT STANLEY CHESLEYS FIRST SET OF INTERROGATORIES AND

REQUESTS FOR ADMISSION TO PLAINTIFFS

 

Pursuant to CR 33 and 36 of the Kentucky Rules of Civil Procedure Plaintiff Stanley

Chesley submits the following Interrogatories and Requests for Admission Discovery

Requests to Plaintiffs You are to serve your answers and responses to these Discovery

Requests within 30 days from the date they were served upon you

In answering these Discovery Requests you are to divulge all information that is within

the knowledge possession or control of you your attorneys or your agents or that may be reasonably ascertained by you or them You are requested to supplement your initial answers to these Discovery Requests after service of your answers if you ascertain or acquire after your first answers any information that falls within the scope of these Discovery Request or if events within the scope of these Discovery Requests occur after service of your answers

 

INTERROGATORIES (excerpts from interrogatories)

INTERROGATORY Identify the total amount of all funds or property collected

by you or your counsel in satisfaction of the judgment previously rendered in this litigation against the various Defendants

 

INTERROGATORY Identify the total amount of funds distributed to Plaintiffs

in this action

 

INTERROGATORY Identify the attorney fees paid to your counsel Angela

Ford from the finds collected in satisfaction of the judgment rendered against Defendants Gallion and Cunningham in this litigation

 

INTERROGATORY Identify the attorney fees paid to counsel other than

Angela Ford by you or Angela Ford either directly or indirectly through any third party for

work in this litigation

 

INTERROGATORY List the name address and telephone number of each

lawyer and each law firm that has received any payment of money as legal fees for work collecting on the judgment whether that money was received from Angela Ford pursuant to fee sharing agreement or was withheld directly by the lawyer or law firm from finds the lawyer or law firm collected or otherwise In addition please identify the total amount of legal fees received by each lawyer or law firm identified

 

INTERROGATORY Please fully explain your Response to each Request for

Admission that is not admitted or unequivocally denied

 

REQUESTS FOR ADMISSION

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to Barbara Bonar

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to the law firm Dahlenburg

Bonar or any law firm in which Barbara Bonar is partner member principal or otherwise

associated

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to Jane Dyche

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to the Dyche Law Office or any law firm in which Jane Dyche is partner member principal or otherwise associated

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to Leslie Rosenbaum

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to the law firm Rosenbaum

Rosenbaum or any law firm in which Leslie Rosenbaum is partner member principal or

otherwise associated

 

Respectfully submitted

KBA 66290

ssnyd wcom

Griffin Terry Sumner KBA 85799

gsumner@ifbtlaw.com

Frost Brown Todd LLC

400 West Market St 32nd Floor

Louisville ICY 40202

502 589-5400

502 581-1087

James

 

THERE IS NO DUTY FOR AN ATTORNEY TO REPORT A CRIME. BUT THERE IS A DUTY FOR ATTORNEYS TO REPORT ETHICS OFFENSES – WILL CHESLEY ACCUSERS BE PROTECTED FROM DISCOVERY OF POSSIBLE CONFLICT OF INTEREST RULES

Sunday, January 29th, 2012

This article discusses the efforts of attorney Stan Chesley to obtain discovery of information which may provide a defense in his disbarment proceedings.

Justice Leibson in a dissent concluded that under Kentucky law there is no duty for an attorney to report a criminal offense by another. See dissent by Justice Leibson: “…it is not unlawful to refuse to inform on a criminal offense…” Penn v. Com., 687 S.W.2d 135 (Ky., 1985)

The Penn case discussed duties of a citizen and not an attorney. However we have found no rule or statute that requires an attorney who learns of a criminal act to report the crime to the authorities.

But in cases where a Supreme Court ethics rule is violated, any attorney knowing of an ethics violation does have a duty to report it.

In 2009 the Kentucky Supreme Court adopted the so-called “Squeal Rule” which requires an attorney to report an ethical violation to the Bar Counsel’s office.

See: SQUEAL RULE – KENTUCKY ATTORNE’YS DUTY TO REPORT ETHICS VIOLATIONS

 

SCR 3.130(8.3) Reporting professional misconduct

 

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the Association’s Bar Counsel.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall report such violation to the Judicial Conduct Commission.

(c) A lawyer is not required to report information that is protected by Rule 1.6 or by other law. Further, a lawyer or a judge does not have a duty to report or disclose information that is received in the course of participating in the Kentucky Lawyer Assistance Program or Ethics Hotline.

(d) A lawyer acting in good faith in the discharge of the lawyer’s professional responsibilities required by paragraphs (a) and (b) or when making a voluntary report of other misconduct shall be immune from any action, civil or criminal, and any disciplinary proceeding before the Bar as a result of said report, except for conduct prohibited by Rule 3.4(f).

(e) As provided in SCR 3.435, a lawyer who is disciplined as a result of a lawyer disciplinary action brought before any authority other than the Association shall report that fact to Bar Counsel.

(f) As provided in SCR 3.166(2), a lawyer prosecuting a case against any member of the Association to a plea of guilty, conviction by judge or jury or entry of judgment, should immediately notify the Director of such event.

HISTORY: Amended by Order 2009-05, eff. 7-15-09; adopted by Order 89-1, eff. 1-1-90

 

The Supreme Court commentary on SCR 3.130 (8.3) states:

“SUPREME COURT COMMENTARY 2009:

(1) Self-regulation of the legal profession requires that members of the profession initiate a

disciplinary investigation when they know that another lawyer has violated certain minimum

standards of behavior as described in the Rule. Lawyers have a similar obligation with respect to

judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that

only a disciplinary investigation can uncover. Reporting a violation is especially important

where the victim is unlikely to discover the offense.

(Author’s comment: Chesley is not believed to have known of a potential conflict by the Bar Counsel until the KBA announced the firing of Linda Gosnell on Nov. 21, 2012).

(2) If a lawyer were obliged to report every violation of the Rules, the failure to report any

violation would itself be a professional offense. Such a requirement exists in many jurisdictions

but has proved unenforceable. The Rule limits the reporting obligation to those violations that a

self-regulating profession must vigorously endeavor to prevent. A measure of judgment is,

therefore, required in complying with the provisions of this Rule. The term “substantial” refers

to the seriousness of the possible offense and not the quantum of evidence of which the

lawyer is aware.

(Author’s comment: This would appear to lower the standard of proof required of Chesley to obtain the discovery he seeks.)

A report should be made to the bar disciplinary agency unless some other agency, such

as a peer review agency is more appropriate in the circumstances. Similar considerations apply

to the reporting of judicial conduct. Lawyers requiring assistance in determining the need to

report a violation may confer with their Supreme Court District Committee member. Pursuant to

SCR 3.530(7) a lawyer’s communications with a District Committee member are confidential.

(3) A lawyer who knows that a judge has committed a violation of the Code of Judicial Conduct

that raises a substantial question as to the judge’s fitness shall, at a minimum, file a report with

the Judicial Conduct Commission. The term “substantial” refers to the seriousness of the possible

offense.

(4) The duty to report professional misconduct does not apply to a lawyer retained to represent a

lawyer whose professional conduct is in question. Such a situation is governed by the rules

applicable to the client-lawyer relationship.

(5) The duty to report misconduct is an important aspect of self-regulation, and is intended to

achieve societal goals. In order to protect a lawyer who makes a report in compliance with the

Rule and to encourage a lawyer to make a voluntary report of other acts of misconduct, the Rule

provides qualified immunity to the reporting lawyer thereby removing the fear of retaliation by

the reported lawyer or judge. The Rule’s immunity provision is founded upon a similar rule of

immunity provided by SCR 4.300, Canon 3D(3) of the Kentucky Code of Judicial Conduct.”

(Emphasis added by LawReader.)

The squeal rule does not require that the attorney file a complaint, only that he “report” his information to the Bar Counsel.

The next question that presents itself is: what happens when the Bar Counsel is the person who is alleged to have violated an ethical duty?

Cincinnati attorney Stanley Chesley has asked the U.S. District Court, the Boone County Circuit Court, and the Kentucky Supreme Court to allow him discovery of the Angela Ford distribution of Fen Phen funds she has seized pursuant to a summary judgment in Abbott v. Chesley et al.

U.S. District Court Judge Danny Reeves has issued an order denying Chesley the right to obtain discovery from Angela Ford regarding the names of lawyers to whom she made a distribution from her legal fees. Ford is quoted by Judge Reeves as having admitted she made a distribution of funds to “other lawyers”. Judge Reeves described Chesley’s argument as “speculative”.

Chesley has filed motions with Judge Reeves asking him to flesh out his ruling so that Chesley may have a clear understanding of the parameters of Judge Reeve’s ruling in anticipation of Chesley’s potential appeal of Judge Reeve’s denial of discovery.

The motions for discovery by Chesley pending before the Boone Circuit Court and the Kentucky Supreme Court are still pending.

Chesley’s motions for discovery include a dozen tendered Interrogatories. One of the tendered questions concerns whether or not the Bar Counsel’s husband was one of the attorneys to whom Angela Ford shared her legal fees. (Chesley claims that Leslie Rosenbaum is the husband of Bar Counsel Linda Gosnell. She was fired on Nov. 21, 2012 but was the chief prosecutor of Chesley in the KBA action seeking disbarment of Chesley.)

Chesley’s discovery requests are based on the possibility that his prosecutor’s husband received funds from Angela Ford and if this occurred, there apparently was a duty for the Bar Counsel to recuse herself from the ethics prosecution.

If in fact it is ultimately revealed that Gosnell’s husband had a financial interest in the distribution of Fen Phen funds, then case law, criminal law, and ethics rules would appear to have imposed a duty on Linda Gosnell to have recused herself from the prosecution of Chesley.

The failure of a prosecutor to recuse themselves where there is a conflict of interest, appears to not only violate the SCR’s but also appears to violate several criminal statutes.

We would suggest that any lawyer on the Board of Governors, any officer of the KBA, any attorney who is a party to this debate, and any member of the Bar Counsel’s office who may have information concerning a potential ethics violation by the former Bar Counsel, have a duty under the Squeal Rule to report it to the Bar Counsel’s office. Will the Squeal Rule be enforced against these officials of the KBA ….or do they have special unwritten rules exempting them from this duty? At the present, no member of the Bar Counsel’s office has been dismissed other than Linda Gosnell. The Supreme Court Rules do not provide for a situation where the ethics violations are committed by the Bar Counsel’s office. Who will investigate the investigators?

This situation raises a question about the current attorney discipline process. Perhaps it is time to refer all ethics hearings to the local Circuit Court. Real judicial proceedings have many safeguards including transparency, that do not exist in the current attorney discipline mechanism.

THE DUTY OF THE BAR COUNSEL TO RECUSE HERSELF

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) In the event that a prosecuting attorney is disqualified, he shall certify such fact in writing to the Attorney General who may direct another Commonwealth’s attorney or county attorney or an assistant attorney general as a special prosecutor to represent the Commonwealth in that proceeding. Effective: July 1, 1982”

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

See the following offenses:

KRS 522.020 Official Misconduct In The First Degree.

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

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

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

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

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

Effective: January 1, 1975

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

KRS 522.030 Official Misconduct In The Second Degree.

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

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

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

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

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

Effective: January 1, 1975

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

Let us return to the Squeal Rule. The duty of an attorney to report a potential ethical violation does not require proof beyond a reasonable doubt. SCR 3.130 (8.3) imposes a duty to report a possible violation of the SCR’s if the information merely “raises a substantial question”….

Chesley’s motions point out that Gosnell’s husband reported on his firm’s website in 2007, that he was experienced in “Fen Phen” and “Major Drug Tort Litigation”. The acts alleged in the ethics prosecution of Chesley occurred prior to 2007. So Chesley’s argument is based on the facts that:

1. A Federal Judge has made a finding that Angela Ford made fee disbursements to “other attorneys”. Ford admits that in an interview with the Courier-Journal.

2. Gosnell’s husband advertised his experience in “Fen Phen” and “Drug Tort Litigation”. Therefore Chesley would ask, “where Gosnell’s husband got his experience in Fen Phen litigation if not through Angela Ford?”

SCR 3.130(8.3) Reporting Professional Misconduct – (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects…”,

 

The Thorpe case clearly cites the law imposing a duty on all prosecutors to recuse themselves if they or their spouse receives a benefit from a pending case the prosecutor is handling.

 

A prosecutor has a clear duty to recuse themselves from a case when “KRS 15.733 Disqualification Of Prosecuting Attorney —“ is violated.

 

We cite: KRS 522.020 Official Misconduct In The First Degree – and KRS 522.030 Official Misconduct In The Second Degree , as two potential criminal statutes which impose penalties upon a prosecutor who “Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office;”

If Gosnell’s husband did in fact receive financial benefits from Chesley’s chief accuser, how can Chesley discover if in fact there was a conflict of interest and a violation by the Bar Counsel in failing to disclose the conflict and in failing to recuse herself?

Will the courts ignore the right of Chesley to defend himself?

The Federal Court Judge has already denied Chesley discovery on this question. The Boone Circuit Court and the Kentucky Supreme Court have pending motions before them and their response is of course yet to be made.

We would ask generally, what happens if the Boone Circuit Court and the Kentucky Supreme Court deny Chesley’s discovery motion? As this article is written Gosnell’s deputy Bar Counsel is the acting Bar Counsel.

If the acting Bar Counsel, and the Board of Governor’s know of an actual conflict violation by Gosnell, what action will they take to disclose these facts? Gosnell was fired 69 days ago and the KBA has not disclosed why they fired Linda Gosnell. If the Board of Governors and/or the Deputy Bar Counsel have knowledge of an ethical violation by Gosnell will they ever disclose this information? Will they stand by and allow a defendant attorney to be denied a legitimate defense?

We acknowledge the byzantine structure of the Supreme Court Rules regarding prosecution of attorneys for ethics violations. Almost everything they investigate is hidden behind a curtain of secrecy. Will the KBA and the Courts uphold a system where the confidentiality rules (which were adopted to protect the attorney being prosecuted) can be used to deny inquiry into potential illegal conduct by the Bar Counsel?

There is a fourth avenue which Chesley might pursue to seek discovery of potential criminal acts. The Franklin County Commonwealth’s Attorney is charged with the duty to investigate all potential crimes in his jurisdiction.

If the Board of Governors and the Deputy Bar Counsel, Linda Gosnell and her husband, and Angela Ford are subpoenaed before a Franklin County grand jury and asked under oath about the possibility that Ford paid Rosenbaum, and Gosnell failed to recuse herself, would they answer the questions, or would they try to hide behind the SCR confidentiality rules?

We find it difficult to consider that the Grand Jury would not have the jurisdiction to investigate the issues raised by Chesley. Further a reading of SCR 3.150 provides several avenues under which the information possessed by the Bar Counsel and the KBA can be argued to not be subject to the confidential rules.

We find the language in SCR 3.150 (4) (b) to be depositive of the question regarding the Commonwealth attorneys right to investigate potential criminal offenses by the Bar Counsel:

“A request for non-public information to the Office of Bar Counsel may be considered by the Court if the request is made by a Law Enforcement Agency, or other official authorized by federal or any state’s law to investigate or prosecute misdemeanors or felonies.”

By asking for this information, Chesley has waived any confidentiality protection. We find nothing in the SCR which says that the confidentiality rule is for the protection of the Bar Counsel’s office or the KBA Board of Governors.

See the Confidentiality Rule:

 

SCR 3.150 Access to disciplinary information

(1) Confidentiality. In a discipline matter, prior to a rendition of a finding of a violation of these Rules by the Trial Commissioner or the Board and the recommendation of the imposition of a public sanction, the proceeding is confidential.

(2)

(a) Notwithstanding subsection (1), the pendency, subject matter and status may be disclosed by Bar Counsel if:

i. The Respondent has waived confidentiality;

ii. The proceeding involves public reciprocal discipline;

iii. The disclosure of any information is made for the purpose of conducting an investigation by the Inquiry Commission or the Office of Bar Counsel, or;

iv. A Motion for Temporary Suspension is pending.

(b) After considering the protection of the public, the interests of the Bar, and the interest of the Respondent in maintaining the confidentiality of the proceeding prior to a finding of a violation of the Rules, the pendency, subject matter and status may also be disclosed by Bar Counsel at the discretion of the Chair of the Inquiry Commission, or of the Chair’s lawyer member designee, if:

i. The proceeding is based upon an allegation that the Respondent has been charged with a crime arising from the same nexus of facts; or

ii. The proceeding is based upon a finding by a court in a civil matter that an attorney has committed conduct that may constitute a violation of the Rules of Professional Conduct.

(3) Duty of Participants. All Participants in a proceeding under these Rules shall conduct themselves so as to maintain the confidentiality requirement of this Rule. Nothing in the rule shall prohibit the Respondent from discussing the disciplinary matter with any potential witness or entity in order to respond in a disciplinary proceeding, or to disclose to any tribunal, or to disclose any information for the purpose of conducting a defense. This provision shall not apply to the Complainant or the Respondent after the Inquiry Commission or its Chair has taken action on a Complaint including the issuance of a charge, the issuance of a private admonition, or a dismissal, including those pursuant to SCR 3.160(3).

(4)

(a) Request for Non-Public Information. A request for non-public information to the Office of Bar Counsel may be considered by the Inquiry Commission and may be granted if the request relates to an investigation by the requestor and is made by:

i. The Character and Fitness Committee;

ii. A Lawyer Disciplinary Enforcement Agency;

iii. A Judicial Disciplinary Enforcement Agency;

(b) A request for non-public information to the Office of Bar Counsel may be considered by the Court if the request is made by a Law Enforcement Agency, or other official authorized by federal or any state’s law to investigate or prosecute misdemeanors or felonies, or the equivalent thereof, in any jurisdiction, provided that the agency or official certifies under oath with specificity that the information is necessary to a pending investigation. In this event the Respondent shall receive notice unless the Court determines that disclosure of the request would seriously prejudice the investigation.

(c) In the absence of a third party request, the Court may permit the disclosure of any nonpublic information to any of the entities listed in (4)(a) or (b) upon application to it by the Office of Bar Counsel.

(d) In the event of a request under (4)(a) or (c) no notice to the Respondent is required, although either the Inquiry Commission or Court may require notice upon review of the application.

(5) Public Proceedings. Upon a finding by the Trial Commissioner or the Board that an attorney has committed a violation of these rules meriting public discipline, or upon the filing of a petition for reinstatement, the record of the Disciplinary Clerk, and any further proceedings before the Board or Court, shall be public except for:

(a) deliberations of the Inquiry Commission, Board of Governors, or the Court; or

(b) information with respect to which a protective order has been issued.

(6) Protective Orders. The Inquiry Commission, the Trial Commissioner, the Board, or the Court, which at the time the order is sought has the case pending before it, may, upon application of any person or entity, and for good cause shown, issue a protective order. Such an order may protect the interests of a Complainant, witness, third party, Respondent, or Bar Counsel. The order may prohibit the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement the order, including requiring that the hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the application.

(7) Notice to National Discipline Data Bank. The Disciplinary Clerk shall transmit notice of all public discipline imposed against a lawyer and reinstatements to the National Discipline Data Bank maintained by the American Bar Association.

HISTORY: Amended by Order 2007-007, eff. 2-1-08; prior amendments eff. 1-1-99 (Order 98-2),

10-1-98 (Order 98-1), 1-1-87 (Order 86-3), 1-1-86, 10-1-82, 4-1-82, 1-1-80, 7-2-71

¹SCR 3.150(8) is amended to comply with Doe v. Supreme Court of Florida, 734 F.Supp. 981

(S.D. Fla. 1990).

 

We would conclude that the Confidentiality rule does not apply to provide a right by the KBA or the Bar Counsel’s office to refuse to answer questions submitted by the Commonwealth Attorney in his investigation of potential violations of:

 

KRS 15.733 Disqualification Of Prosecuting Attorney

KRS 522.020 Official Misconduct In The First Degree – or

KRS 522.030 Official Misconduct In The Second Degree

CONCLUSION

 

The claim raised by Chesley that a KBA official may have failed in their duty to recuse themselves, is not unique to the Chesley case. In the ethics prosecution of Eric Deters, the Trial Commissioner, Frank Doheny, Jr. disclosed that his law partner at Dinsmore and Shohl had a financial interest due to her representation of the client who filed a complaint against attorney Eric Deters. While Doheny disclosed this issue during the hearing, he refused to recuse himself. No relief was granted to Deters on this issue. The Chief Justice refused to hear Deter’s motion for recusal of Doheny.

 

We would suggest that Chesley has raised a legitimate question concerning a potential conflict of interest which may have denied him due process of law. Will the courts and law enforcement agencies standby and place the protection of the Bar Counsel’s office above the rights of an attorney whom the KBA is seeking to disbar?

 

If Chesley’s motion for discovery finds that Gosnell’s husband did not work for or with Angela Ford, and that he did not receive any payment from Ford, then Chesley’s issues will be quickly disposed of, and Gosnell and her husband will be quickly cleared.

 

However, if the courts deny Chesley the right to discovery, and if in the future it is revealed that there was an ethical problem, then in the words of Rev. Al Sharpton, “they will have Blueberry pie all over their faces.”

 

Note: LawReader will publish in a separate article a number of pleadings filed by Chesley with the Kentucky Supreme Court on Jan. 25, 2012 seeking discovery.

 

 

WINCHESTER MAN SEEKS LEGISLATIVE IMPEACHMENT OF FAMILY COURT JUDGE

Thursday, January 26th, 2012

 

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

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

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

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

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

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

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

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

 

Federal Judge Reeves Describes Contents of Angela Ford’s Incomplete Accounting – Denies Discovery to Stan Chesley.

Wednesday, January 25th, 2012

 

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

 

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

 

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

 

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

\

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

(at Covington)

UNITED STATES OF AMERICA,

Plaintiff,

V.

WILLIAM J. GALLION, et al.,

Defendants.

))))))))))

Criminal Action No. 2: 07-39-DCR

 

ORDER

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

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

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

was actually less than its heading would indicate.

 

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

 

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

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

attorneys) pursuant to fee agreements.

 

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

 

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

 

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

 

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

 

This 10th day of January, 2012.

/U.S. District Judge Danny Reeves/

(*emphasis added by LawReader

 

 

WHAT BENEFIT WOULD CHESLEY RECEIVE IF HE IS ABLE TO PROVE THAT HIS PROSECUTOR’S HUSBAND WAS AFFILIATED WITH ANGELA FORD AND RECEIVED A DISTRIBUTION OF FEN PHEN FUNDS?

Wednesday, January 25th, 2012

 

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Effective: July 1, 1982

 

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

 

See the following offenses:

 

KRS 522.020 Official misconduct in the first degree.

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

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

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

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

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

Effective: January 1, 1975

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

 

522.030 Official misconduct in the second degree.

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

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

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

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

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

Effective: January 1, 1975

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

 

SCR 3.130(3.8) Special responsibilities of a prosecutor

The prosecutor in a criminal case shall:

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

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

Formerly codified as KRS 26A.250.

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

 

 

KBA REPORTS NEW OFFICERS FOR JULY 1, 2012

Wednesday, January 25th, 2012

 

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

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

 

Officers

President W. Douglas Myers, Hopkinsville

President-Elect Thomas L. Rouse, Erlanger

Vice President William E. Johnson, Frankfort

Immediate Past President Margaret E. Keane, Louisville

Young Lawyers Section Chair Jacqueline Sue Wright, Maysville

 

Bar Governors

1st SCD

Jonathan Freed, Paducah

2nd SCD

Thomas N. Kerrick, Bowling Green

3rd SCD

M. Gail Wilson, Jamestown

4th SCD

Douglas C. Ballantine, Louisville

5th SCD

Anita M. Britton, Lexington

6th SCD

David V. Kramer, Crestview Hills

7th SCD

Bobby Rowe, Prestonsburg

 

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

 

PRESS RELEASE by Stan Chesley: KENTON CIRCUIT COURT DISMISSES BASELESS LAWSUITS AGAINST STAN CHESLEY AND HIS LAW FIRM

Monday, January 23rd, 2012

 

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

 

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

 

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

 

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

 

 

—Contact Robert Steinberg at (513) 621-0267

 

UK College of Law Professor Richard H. Underwood has taken CLE technology to the next level. He has created a CLE class titled “Sex with Client’s in 3-D”.

Monday, January 23rd, 2012

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

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

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

The UK website describes the CLE program by Professor Underwood:

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

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

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

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

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

 

Remember It’s People’s Lives We Are Dealing With Here! Shouldn’t substance rule over procedure?

Saturday, January 21st, 2012

By Gwen Billingsley, LawReader CEO

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

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

 

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

 

The facts are:

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

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

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

4. The next summer, they left the firm.

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

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

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

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

9. Maples was NOT advised of the denial.

 

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

 

In Fen Phen civil case, Stan Chesley files motion to allow him discovery re: if any funds were paid by Angela Ford to two former KBA presidents and the husband of Bar Counsel Linda Gosnell.

Saturday, January 21st, 2012

 

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

The author obtained these pleadings from the Boone Circuit Clerk.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

ANGELA FORD FILES ANOTHER APPEAL TO 6TH. CIRT. CT. OF APPEALS TO AVOID COURT ORDER TO PROVIDE ACCOUNTING OF HER HANDLING OF FEN PHEN ASSETS.

Saturday, January 21st, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

William “Bill” Johnson has been elected Vice President of the Kentucky Bar Association.

Wednesday, January 18th, 2012

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

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

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

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

 

LAWREADER ATTENDS 6TH. CIRCUIT ORAL ARGUMENTS IN GALLION / CUNNINGHAM APPEAL IN CRIMINAL CASE – DEFENDANTS SEEK NEW TRIAL

Wednesday, January 18th, 2012

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

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

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

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

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

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

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

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

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

Sirkin and  Harvill presented three main arguments:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

LAWREADER ATTENDS 6TH. CIRCUIT ORAL ARGUMENTS IN GALLION / CUNNINGHAM APPEAL IN CRIMINAL CASE – DEFENDANTS SEEK NEW TRIAL

Tuesday, January 17th, 2012

By LawReader Senior Editor Stan Billingsley


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

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

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

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

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

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

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

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

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

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

Sirkin presented three main arguments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arbitration clauses in employment contracts may be ignored

Sunday, January 15th, 2012

Rights in the Workplace

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

Why employers like the agreements should be obvious: they pre-empt court
challenges on workplace disputes and make it harder for employees to join forces
to demand better treatment. As for why employees sign, they have no choice:
their jobs require it.
The good news is that this is not the end of the story.
In a recent ruling, the National Labor Relations Board concluded that
employees’ federal right to engage in concerted action trumps any arbitration
agreement that bars group claims. It was an impressive defense of employee
rights. Employers can still require arbitration, but they must also offer ways
for employees to bring collective claims, either in arbitration or in court.

Business lobbyists, including the Chamber of Commerce, have denounced
the ruling. They say it is an invitation to vast class action lawsuits on issues
that could be resolved out of court. That is an exaggeration, intended to deny
employees the right — and the power — that comes from jointly pressing their
concerns.

Business groups are likely to appeal the board’s decision to a federal court
of appeals. They may try to assert that the board’s decision should not apply in
nonunion companies. But since 1935, federal law has given employees the right to
join together for better pay and working conditions — with or without a union.
Business groups have also argued that the labor board should follow a ruling
last year in which the Supreme Court decided, 5 to 4, that federal law prevents
consumers who have signed arbitration agreements from banding together in a
single arbitration — a devastating blow to consumer rights. The labor board has
already correctly asserted that the law governing consumers is not the same one
that governs employees, and that labor law clearly gives employees the right to
jointly pursue workplace grievances, including through litigation.
Starting this month, the labor board has three new members. All five members
— three Democrats and two Republicans — have solid backgrounds in labor law,
which bodes well for bridging potential partisan divides. But as the arbitration
ruling shows, business groups and their Republican allies will keep pushing back
hard against employee rights. Going forward, the key will be for members to
remain focused on why the labor law exists.
And all Americans would do well to read the law’s preamble, which says that
it is the policy of the United States to encourage collective bargaining and to
protect “the exercise by workers of full freedom of association,
self-organization, and designation of representatives of their own choosing, for
the purpose of negotiating the terms and conditions of their employment or other
mutual aid or protection.” That is good for the country.

 

Gwen Billingsley

The California Bar Association has completed a program to clear their chronic backlog of attorney discipline cases. KBA should take note!

Thursday, January 12th, 2012

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ON JAN. 15TH. THE KBA BOARD MEETS – How to contact your Board of Governors representative.

Saturday, January 7th, 2012
The Board of Governors of the KBA will meet on Jan. 15th. In Frankfort.  A number of issues may be raised at that meeting of concern to all Kentucky lawyers.
If you are concerned with the direction the bar has taken in recent years with efforts to limit the free speech of lawyers, or if you have questions about the announced
increase in dues over the next three years to $500 a year, if you are concerned with the large expenditure of your dues for the Bar Counsel to hire outside
counsel to assist their full time staff of nine lawyers, then you should let your Bar Rep’s known your thoughts.
If you are concerned that the Board fired the Bar Counsel on Nov. 21st and still have not announced a reason …then let your Bar rep known your thoughts.
If you are concerned with why the Bar Counsel is proceeding in a case in the 6th. Cirt with expensive outside counsel, in an effort to allow the ethics prosecution
of attorneys who make “true but reckless” statements, then share your thoughts with your Bar Rep.
Your KBA Board of Governors
Jonathan Freed

Bradley & Freed, PSC

1634 Broadway
PO Box 1655
Paducah, KY 42002-1655
(270) 443-0040
(270) 575-5498 fax
Term ends June 30, 2012

Serieta G. Jaggers

Jaggers Law Office

Stout, Farmer & King
1206 Marion Rd.
Princeton, KY 42445
(270) 365-1112
(270) 365-2765 fax
Term ends June 30, 2013

James D. Harris, Jr.

Kerrick, Stivers, Coyle & VanZant, PLC

1025 State Street
PO Box 9547
Bowling Green, KY 42102-9547
(270) 782-8160
(270) 782-5856 fax
Term ends June 30, 2012

R. Michael Sullivan

PO Box 727

Owensboro, KY 42302-0727
(270) 926-4000
(270) 68
Term ends June 30, 20133-6694 fax

Richard Hay
PO Box 1124

Somerset, KY 42502-1124
(606) 679-2214
(606) 678-4696 fax
Term ends June 30, 2013

M. Gail Wilson

Bertram & Wilson

One Monument Square
PO Box 25
Jamestown, KY 42629
(270) 343-3100
(270) 343-2355 fax
Term ends June 30, 2012

Douglas C. Ballantine

Stoll Keenon Ogden PLLC

2000 PNC Plaza, 500 W. Jefferson St.
Louisville, KY 40202
(502) 560-4247 (direct)
(502) 627-8747 (fax-direct)
Term ends June 30, 2012

Douglass Farnsley

Stites & Harbison

400 West Market St., Suite 1800
Louisville, KY 40202-3352
(502) 681-0426 (direct)
(502) 779-8268 (fax-direct)
Term ends June 30, 2013

Anita M. Britton

Britton Osborne Johnson PLLC

200 W. Vine St., Suite 800
Lexington, KY 40507
(859) 983-2242
(859) 280-2246 fax
Term ends June 30, 2012

William R. Garmer

Garmer & Prather PLLC

141 North Broadway
Lexington, KY 40507
(859) 254-9351
(859) 233-9769 fax
Term ends June 30, 2013

David V. Kramer

Dressman Benzinger LaVelle psc

Thomas More Park
207 Thomas More Pkwy.
Crestview Hills, KY 41017-2596
(859) 426-2124 (direct)
(859) 341-1469 fax
Term ends June 30, 2012

J. Stephen Smith

Graydon Head & Ritchey LLP

2400 Chamber Center Dr., Ste. 300
PO Box 17070
Ft. Mitchell, KY 41017
(859) 578-3070
(859) 525-0124
Term ends June 30, 2013

Earl M. “Mickey” McGuire

4706 KY Rt. 114

Prestonsburg, KY 41653
(606) 886-2201
(606) 886-2201 fax
Term ends June 30, 2013

Bobby Rowe

PO Box 1330

Prestonsburg, KY 41653
(606) 886-6876
(606) 886-6161 fax
Term ends June 30, 2012

COURT MAY ADVISE JURY OF DIRECTED VERDICT and Respond to Juror Questions

Saturday, January 7th, 2012

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

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

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

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

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

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

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

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