Archive for June, 2012

KBA memo – Nominations for Judicial Nominating Commissions Are Being Received

Saturday, June 30th, 2012

June 29, 2012

M E M O R A N D U M

TO: Kentucky Resident Members of the Kentucky Bar Association

FROM: John D. Meyers, Executive Director

SUBJECT: Judicial Nominating Commissions

Pursuant to the provisions of Section 118 of the Kentucky Constitution and SCR 7.030(2), click here for a list of Kentucky Bar Association Board of Governors’ candidates for two Bar members on the Supreme Court and Court of Appeals Nominating Commission and the respective Nominating Commissions for each Judicial Circuit and the ten (10) separate Judicial District Nominating Commissions. Pursuant to SCR 7.030(4) any other qualified Bar member may petition to be a candidate for a Judicial Nominating Commission. Any petition must conform to the requirements in SCR 7.030(4) and shall be filed with the KBA Executive Director on or before August 15, 2012. On or before October 10, 2012 the official ballot will be sent by U.S. Mail.

IMPORTANT NOTICE

Section 118(2) of the Kentucky Constitution states that Bar members on the Judicial Nominating Commissions shall be elected by the members of the Bar residing in the circuit or district. IF YOUR OFFICIAL BAR ASSOCIATION ADDRESS IS ONE OTHER THAN YOUR COUNTY OF RESIDENCE ADDRESS, COMPLETE THE FORM BELOW AND RETURN BY JULY 30 TO THE OFFICE OF THE EXECUTIVE DIRECTOR. THANK YOU FOR YOUR ATTENTION TO THIS MEMORANDUM.

BAR ASSOCIATION MAILING ADDRESS: COUNTY OF RESIDENCE ADDRESS:

NAME_______________________________________ NAME_______________________________________

STREET______________________________________ STREET______________________________________

CITY_________________________________________ CITY

COUNTY_______________________ ZIP__________ COUNTY_______________________ ZIP__________

What Are Some of Kentucky’s New Statutory Laws?

Friday, June 29th, 2012

By Nick Nighswander June 28, 2012
While many of us are anxiously awaiting the United States Supreme Court’s decision on the health care law known as Obamacare, there are several new statutory laws that will take effect next month from the Kentucky General Assembly’s last session that was completed this past April. The new laws are typically passed to address events and circumstances facing the citizens of the Commonwealth, and others are amendments to current laws to make them more current, effective and enforcible.
This past session resulted in six new or amended criminal statutes and approximatley sixteen civil statutes. The criminal statutes usually involve jail time for offenders. The civil statutes usually regulate actions by persons and corporations or grant the right to sue to citizens and entities for a civil wrong. This letter will address one new amended criminal law and two new civil laws.
HB93 PERSONAL WATERCRAFT (GREGORY, S) Amend KRS 235.285 to clarify that the Rules of the Road for personal watercraft are part of the Inland Navigation Rules and provide specific citation for those rules (i.e., to better enforce actions with waverunners and jet skis).
HB281 INTERSCHOLASTIC ATHLETICS (JENKINS, J) Amend KRS 160.445 to require coaches to complete training on recognizing and treating concussions and head
injuries; identify actions required before an athlete with a suspected concussion or head injury may return to play; amend KRS 156.070 to conform; EMERGENCY (i.e., mainly for football coaches and soccer coaches).
HB42 PERSONAL INJURY
(SINNETTE, K) Amend KRS 304.39-241 to authorize an insured to direct the payment of motor vehicle reparation (PIP) benefits for medical expenses arising from a covered loss to a health benefit plan, Medicaid, Medicare, a Medicare supplement provider, or any other provider that has paid related medical expenses (i.e., to help with subrogation issues and liens for medical bills covered by automobile insurance and paid by health care coverage).

LAWYER NOT TO BLAME IN CLIENT’S FRAUD, 6th. CIRCUIT FINDS

Friday, June 29th, 2012

2012-06-29T10:29:01Z
By Brett Barrouquere — Associated Press
Legal work termed routine in oil scam
LOUISVILLE — When Paul Bennett, Frederick Clayton and others lost more than $4 million on an oil drilling investment in southern Kentucky, they sued the companies involved and their lawyer.
While the investors may be able to collect from Mammoth Resource Partners and Heartland Resources through bankruptcy proceedings, they won’t be able to get money from the attorney for the two companies.
The U.S. 6th Circuit Court of Appeals on Thursday ruled that lawyers generally are not responsible if their clients swindle investors, as long as they do routine legal work and don’t act as salesmen.
The ruling came in the case of a group of investors who sued Mammoth Resource Partners and attorney Hunter Durham of Columbia. The men alleged that Durham went beyond standard legal work and knew the offerings of Mammoth Resource Partners were fraudulent.
Judge Jeffrey S. Sutton found that there’s no evidence that Durham did anything other than routine legal work, enacting the exemption from liability under the state’s “Blue Sky” laws. The “Blue Sky” laws were enacted federally in 1933, with many states following suit over the next several decades. The laws regulate the sales and offers of securities and draw their name because the statutes initially targeted swindlers “so brazen and shameless they would peddle shares of anything including (allegedly) shares of the sky,” Sutton wrote.
“Durham no more ‘offered’ or ‘sold’ these securities than the lawyer representing Magic Johnson’s investment group ‘bought’ the Los Angeles Dodgers,” Sutton wrote.
The investors, led by Bennett and Clayton, and companies in California, Colorado, Florida and Illinois, bought in to oil and gas drilling with investments ranging from $1.35 million to $34,750.
The plaintiffs said Mammoth wasn’t licensed to sell securities in oil and gas drilling projects in Kentucky. They claimed in one case, the company used a man as a “drill consultant” to sell the investment securities with a pitch of “You put five or six well programs together in this area and there’s going to be at least one winner. This is absolutely the best lease in the country.”
The investors also claimed that Durham took an active role with the companies and knowingly drafted false and misleading documents. Sutton, joined by judges Karen Nelson Moore and Jane Branstetter Stranch, found that wasn’t the case here.
“Of course, an attorney who knowingly drafted false or misleading documents would face other problems,” Sutton wrote.
The Kentucky Department of Financial Institutions weighed in on the side of the plaintiffs, telling the court in a brief that Durham didn’t fulfill his role of ensuring the accuracy of his work and assumed a role in selling the investments by crafting documents aimed at persuading investors.
Sutton found that the investors couldn’t show that Durham did anything more than ordinary legal work for Mammoth Resource and Heartland Resources.
In the midst of the lawsuit, Mammoth Resource and Heartland Resources each filed for bankruptcy protection. Mammoth remains in business, pitching on its Web site the idea that “It Takes Energy To Make Energy.” Heartland Resources has closed.
Mammoth Resource Partners ran afoul of Kentucky regulators in 2004, when the state sought to sanction the company for violating the Securities Act of Kentucky. The company and regulators reached a settlement in 2007, requiring compliance with the law and imposing a $20,000 fine, of which $15,000 was suspended.

OBAMACARE SUBSTANTIALLY UPHELD BY 5-4 VOTE – Chief Justice Roberts Joins Majority – See full ruling

Thursday, June 28th, 2012

OBAMACARE SUBSTANTIALLY UPHELD BY 5-4 VOTE – Chief Justice Roberts Joins Majority
June 28, 2012
WASHINGTON — The Supreme Court upheld the individual insurance requirement at the heart of President Barack Obama’s health care overhaul.
The decision means the huge overhaul, still only partly in effect, will proceed and pick up momentum over the next several years, affecting the way that countless Americans receive and pay for their personal medical care. The ruling also hands Obama a campaign-season victory in rejecting arguments that Congress went too far in requiring most Americans to have health insurance or pay a penalty.
Chief Justice John Roberts announced the court’s judgment that allows the law to go forward with its aim of covering more than 30 million uninsured Americans.
The justices rejected two of the administration’s three arguments in support of the insurance requirement. But the court said the mandate can be construed as a tax. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” Roberts said.
The court found problems with the law’s expansion of Medicaid, but even there said the expansion could proceed as long as the federal government does not threaten to withhold states’ entire Medicaid allotment if they don’t take part in the law’s extension.
The court’s four liberal justices, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, joined Roberts in the outcome.
Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas dissented.
“The act before us here exceeds federal power both in mandating the purchase of health insurance and in denying non-consenting states all Medicaid funding,” the dissenters said in a joint statement.
The court devoted more than six hours to arguments about these issues over three days in late March. The justices met March 30 to take a vote on the case and sort out who would take the lead in writing the opinions.
The 26 states and the small business group challenging the law seemed to have the better of the courtroom arguments in March. Conservative justices peppered Solicitor General Donald Verrilli Jr. with hostile questions about both the insurance requirement and the Medicaid expansion.
The case began almost as soon as Mr. Obama signed the law on March 23, 2010. Even before the day was out, Florida and 12 states filed the lawsuit that ended up at the Supreme Court. Another 13 states later joined in later.
The heart of the challenge was the claim that Congress could not force people to buy a product – health insurance.
The administration advanced several arguments in defense of Congress’ authority to require health insurance, including that it falls under the power to regulate interstate commerce.
The government also argued that the insurance requirement was necessary to make effective two other undoubtedly constitutional provisions: the requirements that insurers accept people regardless of existing health problems and limit what they charge older, sicker people.
The administration also said that even if the court rejected the first two arguments, the insurance requirement and penalty are constitutional as an exercise of Congress’ power to enact taxes. The penalty assessed for not buying insurance functions like a tax, the government said.

The text of the Supreme Court’s full opinion upholding the health-care law’s individual mandate is now available.

Read full text of 183 page Supreme Court ruling at: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

A KENTUCKY LAWYER COULD NOT HAVE SAID THIS WITHOUT RISK OF SANCTION…

Thursday, June 28th, 2012

Washington Post columnist E.J. Dionne wrote an article published on June 28, 2012 which called on Supreme court Justice Scalia to resign. (See article below)

In the article Dionne wrote that: “Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase.”

His article sites other acts and statements which he believes justifies the duty of Scalia to retire from the bench.

While we believe that it is still permissible for a Kentucky lawyer to read the Dionne article, it would be an ethical violation for a Kentucky lawyer to make the kind of statements made by Dionne.

Under SCR 3.130 (8.2) a Kentucky lawyer may be sanctioned if he makes a truthful statement “with reckless disregard as to its truth or falsity”

SCR 3.130(8.2) Judicial and legal officials
(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
HISTORY: Adopted by Order 89-1, eff. 1-1-90

The rule fails to explain who gets to determine if a statement is “reckless”. We would suggest that in the Berry case, the Bar Counsel and the KBA have reserved to themselves the right to determine if a statement made by a lawyer is “reckless” in other words, if they disagree with your statement, they can investigate you like they did John M. Berry, Jr.
There are two Kentucky cases before the Sixth Circuit Court of Appeals where the Kentucky limitation of free speech of attorneys is being considered. The lead case concerns a letter written by former State Senator John M. Berry, Jr. to the Legislative Ethics Commission.
Berry had written a polite and temperate letter to the Legislative Ethics Commission after they dismissed an ethics complaint against Sen. David Williams. Berry took issue with the Legislative Ethics Commission legal reasoning in finding that Williams was not responsible for the acts of his agents and employees regarding a campaign fund raising issue.
Berry’s letter upset former Court of Appeals Judge Paul Gudgel, a member of the Legislative Ethics Commission. It is reported that Gudgel called the Bar Counsel and sought guidance as to whether or not Berry’s letter was an ethical violation.
The Bar Counsel found SCR 8.2 and for almost two years investigated Berry. We have always been troubled by the length of time the Bar Counsel took to complete this case. Berry admitted he wrote the letter, and the only issue was whether or not it was “false, or true but reckless”, and whether or not the Legislative Ethics Commission was a protected party.
The Bar Counsel issued a “warning letter” to Berry and placed it in his personnel file. He was advised that if he committed no more (free speech) violations for one year the letter would be withdrawn from his personnel file.
Berry was never given a trial, he never got to have a hearing of any kind before the official warning letter was placed in his personnel file.
The ACLU joined with Berry to seek relief under the Federal Civil Rights Act. The ACLU argued that this practice imposed a chilling effect on an attorneys free speech rights.
The dues paying members of the Kentucky legal profession are paying the cost of the outside counsel hired by the KBA to fight against lawyers free speech rights.
At this point SCR 8.2 still stands. The Sixth Circuit has had the case for over six months, and one would expect a decision is eminent.
The following article by E.J. Dionne ( a non-lawyer) demonstrates the type of free speech which apparently is unethical for a Kentucky lawyer to express.
We would argue that if a Kentucky lawyer wrote such an article about a Kentucky judge, prosecutor, or “public legal officer” he could be sanctioned. We have trouble trying to find the “compelling state interest” in limited a lawyer’s free speech rights.
It would be dangerous for us to agree with the Dionne article, as SCR 8.2 does not limit its application to Kentucky judges or Kentucky legal officers.
When the ruling of the Sixth Circuit comes down, we will once again ask the KBA how much of our dues money they spent to defend SCR 8.2. We asked the KBA president on April 10, 2012 to disclose the expenditure of dues money to hire outside counsel in this and other cases…we have never received such an answer. So licensed Kentucky lawyers are paying to have their free speech rights limited.
We note that the Kentucky Supreme Court (in 1990) adopted the language in SCR 8.2, and they can change that language at their discretion.
DIONNE ARTICLE THAT WOULD LIKELY RESULT IN A SANCTION OF A KENTUCKY LAWYER IF HE/SHE HAD WRITTEN THIS:
JUSTICE ANTONIN SCALIA NEEDS TO RESIGN FROM THE SUPREME COURT.
By E.J. Dionne Jr., Published: June 27The Washington Post
Justice Antonin Scalia needs to resign from the Supreme Court.
He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.
So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.
Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.
“After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.”
What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.
“Arizona bears the brunt of the country’s illegal immigration problem,” the politician-justice proclaimed. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Cue the tea party rally applause.
As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a justice at the same time.
Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring. Recall a 2004 incident. Three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president.
Scalia scoffed at the idea that he should recuse himself. “My recusal is required if . . . my ‘impartiality might reasonably be questioned,’ ” he wrote in a 21-page memo. Well, yes. But there was no cause for worry, Scalia explained, since he never hunted with Cheney “in the same blind or had other opportunity for private conversation.”
Don’t you feel better? And can you just imagine what the right wing would have said if Vice President Biden had a case before the court and went duck hunting with Justice Elena Kagan?
Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees.
“I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”
It was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling. Scalia should free himself to pursue his true vocation. We can then use his resignation as an occasion for a searching debate over just how political this Supreme Court has become.
ejdionne@washpost.com

US Supreme Court Confirms Limitations on Rule 54(d) Costs

Wednesday, June 27th, 2012

US Supreme Court Confirms Limitations on Rule 54(d) Costs

By Todd McMurtry | tmcmurtry@dbllaw.com

In a recent decision, the US Supreme Court confirmed the “narrow scope of taxable costs.” In Taninguchi v. Kan Pacific Saipan. Ltd, 132 S.Ct. 1997 (2012), Justice Alito examined whether 28 U.S.C. § 1920(6), the Court Interpreters Act, which allows courts to award a prevailing party the costs of oral interpreters, also permits a court to award for the cost of document translation.

Taninguchi, a Japanese professional baseball player, suffered personal injuries on defendant’s property and sued. The District Court granted summary judgment to defendant. Relying on § 1920(6), Kan Pacific sought to recover the costs it expended in translating documents and medical records from Japanese. The District Court awarded these costs. Taninguchi appealed. The Ninth Circuit affirmed and the Supreme Court granted certiorari.

Because the Act did not define “interpreters,” the Court sought its plain meaning. The decision referenced many dictionaries and concluded that the plain meaning of interpreter was one who provided oral interpretation, not document translation.

In its holding, the Court ruled, “This Court has never held that Rule 54(d) creates a presumption in favor of the broadest possible reading of the costs enumerated in § 1920.” The Court concluded that there are narrow bounds to taxable costs, “which are limited by statute and modest in scope.” By limiting the meaning of interpreter to one who provides oral interpretation, the Court rejected an expansive approach to the award of costs.

Todd McMurtry is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.
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SIXTH CIRT. CT. OF APPEALS DENIES FEN PHEN DEFENDANTS EN BANC APPEAL

Wednesday, June 27th, 2012

June 27, 2012
The 6th. Circuit Court of Appeals this week denied en banc consideration of the appeal of Fen Phen Defendants William Gallion and Shirley Cunningham.
They were both convicted in 2009, and their original appeal to the 6th. Circuit Court of Appeals was rejected. They then petitioned for the full court to sit en banc and consider their appeal.

Gallion was sentenced to 25 years and Cunningham to 20 years for their April 2009 conviction on nine criminal counts including wire fraud and conspiracy. The appeals court also upheld the trial judge’s order requiring the two men to pay more than $127 million to former clients who were victims of the fraud.

The criminal charges were connected to a $200 million settlement between American Home Products Corp. and Kentucky residents who claimed they were harmed by the once-popular fen-phen diet drug combination.

Sources close to the case said that the defendants would seek consideration of their appeal from the U.S. Supreme Court by filing a petition for a Writ of Certiori.

Harvard Professor of constitutional law Laurence Tribe suggested that Supreme Court Justice Antonin Scalia tone down his political barbs in writing court opinion(s)

Wednesday, June 27th, 2012

Harvard Professor of constitutional law Laurence Tribe suggested that Supreme Court Justice Antonin Scalia tone down his political barbs in writing court opinion lest he wishes to drive public opinion of the court down to Congress’ abysmal approval ratings.

“I think Justice Scalia ought to reconsider the harm he does to the court as an institution when he indulges his famous wit in order to stab the president,” said Tribe, who argued for Al Gore in the Bush vs. Gore 2000 showdown, during a Tuesday appearance on Jansing & Co.

Scalia, appointed to the court by President Ronald Reagan in 1986, is known for his sharp tongue, colorful language, and as a staunch protector of conservative beliefs.
Critics, though, say Scalia crossed a line in writing his dissenting opinion on the court’s ruling on the Arizona immigration law this week when he quoted a statement by the president.
“The president said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the Immigration Act,” Scalia wrote in his dissent. “Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”

Tribe said Scalia’s comment creates an appearance of a politicized court.
________________________________________
“I think it’s the court’s responsibility to act like a court—to not reach out to issues that were not presented by the case, to not make comments about a recent press conference that the president holds just to make a political point,” Tribe told MSNBC host Chris Jansing. “When that happens it’s not simply a matter of the law being politically charged, it’s a matter of the court being politically unwise. It’s critical that we not lose faith in all of our organizations…when people lose faith even in judges who are honestly trying to do a good job, I think that endangers the institutional stability of the country.”

The Supreme Court will issue its finding on the Obama administration’s health care reform law, the Affordable Care Act, this Thursday. Tribe said it’s a chance for the court to prove it’s not as bipartisan as critics might believe.

“I do think the court will surprise a lot of people when it probably upholds the Affordable Care Act,” he said. “I think it will be upheld in its entirety. I do think that will be a partial antidote to the way people felt not only after Bush vs Gore but after Citizens United and a number of other cases where the court has reached further than it needed to, to grab onto issues that were in the middle of the political battle and then often not to act in a particularly judicious way in talking about it.”

Tribe has maintained for some time, even as others have predicted the opposite, that he believes the court will rule in favor of the health care law. On Jansing & Co. he noted that “You can be deeply conservative and still believe that the Affordable Care Act is completely consistent with the United States constitution.”
The Harvard professor counts both President Obama and Supreme Court Chief Justice John Roberts as former students.

GASOLINE BREAKs $2 A GALLON BARRIER IN CARROLLTON, KY.

Monday, June 25th, 2012

Please allow me to brag about the price of gasoline in Carrollton, Ky. I just filled up for $2.99 a gallon. Carroll County often has the lowest gas prices between Louisville and Cincinnati….so next time you are on I-71 pull off at the Carrollton exit and top off your tank.

Not only is our gasoline low priced, we also have LawReader.com which beats the socks off Westlaw and the other legal research providers!

ATTORNEY WHO DEFENDS ATTORNEYS IN DISCIPLINE CASES DESCRIBES ISSUES IN THIS TYPE OF PRACTICE

Monday, June 25th, 2012

The Ethos of a Discipline Defense Lawyer
June 23, 2012
A few months ago, I was involved in a very ugly deposition while defending a lawyer in a discipline matter. The deponent was herself a lawyer, and while not technically the complainant, the moving force behind the State Bar complaint. Each of my questions were met with a string of silly objections by her counsel, a former law school buddy clearly appearing as a favor, followed by the two of them grinning at each other as if they had just done well on a law school examination. After a few hours of this, I thought I had enough to completely destroy her credibility at trial, so I ended the deposition. As we left, she hissed at me “How do you sleep at night, doing what you do?”. ”Just what is it that you think I do?” I asked. ”You get bad lawyers off!” she sneered. I shouldn’t have done it, but my professional thick skin had been worn thin by this point, so I replied “Your ignorance is showing.”
It’s a common perception. I have been told that my opinions and observations may be discounted because of the people I represent. It is certainly true that representing a certain type of client will influence your perception. That is one reason why every lawyer needs to have not only ethics but also an ethos.
What is the ethos of a discipline defense lawyer? Not getting bad lawyers off but:
• Insuring that the process is fair.
• Making sure the Respondent’s voice is heard.
• Achieving a result that is just.
• Helping the client to rehabilitate themselves from their misconduct, if they have committed it.
• Educating the profession and public about attorney misconduct and legal ethics.
• Working to change misguided law.
You can’t truly have ethics unless you have an ethos, even if you can’t always live up to it. Without it, you are just an animal in a cage of external regulation, responding to a fear of punishment. I once heard a fellow law student say that the purpose of our legal ethics class was to teach us how to get around the rules. With an ethos like that, I wonder where he is to today. Perhaps I will get a call from him tomorrow.
Complacency and ignorance about legal ethics are widespread. Ignorance is more easily remedied. Complacency is the tough nut to crack, in part of because legal ethics is often taught as that cage of external regulation rather than internalized principles to live your professional life by. No one likes being in a cage, so we resist.
So it turned out that the lawyer that I deposed informed the State Bar that she would not show up at trial despite my subpoena. We settled the case for what it was really worth. What sort of ethos do you suppose she has?

U.S. SUPREME COURT EXTENDS MORE LENIENT DRUG PENALTIES

Friday, June 22nd, 2012

WASHINGTON (Reuters) – The U.S. Supreme Court on Thursday extended more lenient penalties of a new law for crack and powder cocaine to criminals convicted but not yet sentenced when the law took effect, a ruling that could affect thousands of defendants.

By a 5-4 vote, the high court ruled for two men convicted of crack cocaine crimes, but sentenced after the 2010 measure became law. Congress changed the law due to concerns that the longer prison terms were racially biased and unfair.

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4Rehabilitation.com/CocaineRehabThe Fair Sentencing Act, signed by President Barack Obama on August 3, 2010, sharply reduced the difference between sentences for crimes committed by crack cocaine users, who tend to be black, and powder cocaine users, who tend to be white.

The disparity was reduced to about an 18-to-1 ratio, compared with the prior law which treated 100 grams of powder cocaine as the equivalent of one gram of crack cocaine, or a 100-to-1 ratio.

Justice Department attorneys told the Supreme Court the issue at the heart of the case could potentially affect thousands of defendants, not just the two involved in the ruling.

One of the two, Edward Dorsey, pleaded guilty in June 2010 to possessing 5.5 grams of crack cocaine in 2008 with intent to distribute it and was sentenced to 10 years in jail. Under the 2010 law, he probably would have received a sentence of about four years.

In the other case, Corey Hill was convicted in 2009 of selling 53 grams of crack cocaine in 2007 and sentenced to 10 years in prison. Under the 2010 law, he would have received a sentence of around five years.

U.S. appeals courts have been divided on how to apply the law. An appeals court in Chicago in the case involving the two men ruled that the law applied only to crimes committed after August 3, 2010. The Supreme Court reversed that decision.

Writing the court’s majority opinion, Justice Stephen Breyer said Congress intended the law’s more lenient penalties to apply to offenders who committed their crimes before August 3, 2010, but were sentenced after that date.

The U.S. Justice Department initially took the position that the new sentences only applied to crimes committed after Aug 3, 2010.

But after Democratic lawmakers in Congress complained, U.S. Attorney General Eric Holder in a memo issued on July 15, 2011, said the law should apply to all sentences handed down after August 3, 2010, regardless of when the crime had been committed.

In the opinion, Breyer said applying the more lenient penalties to all those sentenced after August 3, 2010, made it possible to foresee a reasonably smooth transition under new federal guidelines calling for lower sentences involving crack cocaine.

He was joined by the court’s three other liberals, and moderate conservative Justice Anthony Kennedy.

The court’s most conservative members, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, dissented.

Scalia wrote that the court majority misinterpreted federal law and added, “The mischief of the court’s opinion is not the result in this particular case, but rather the unpredictability it injects into the law for the future.”

The Supreme Court cases are Dorsey v. United States, No 11-5683, and Hill v. United States, No. 11-5721.

ERIC DETERS COMMENTS -”I’M STILL THE BULLDOG…BUT I’M A WISER AND IMPROVED VERSION. IT’S GREAT TO BE BACK.”

Friday, June 22nd, 2012

On June 15, 2012, the Kentucky Supreme Court reinstated my license to practice law. I served a 61 day suspension on their prior Order and 53 more days based upon an Objection to my reinstatement filed by Interim Bar Counsel. The Kentucky Supreme Court ordered their decision on my reinstatement published, which means lawyers can cite it as a law.

During this process and now at its conclusion, we accomplished two significant modifications to attorney discipline:

1. An attorney no longer needs to post a bond to appeal a decision by the Board of Governors to the Kentucky Supreme Court. The Court changed the rule. Many times, high bonds prevented a lawyer from appealing.

2. An attorney who is suspended can apply for reinstatement even if there is other pending discipline expires.

There is personal significance to my reinstatement:

1. I’m once again practicing law in Kentucky.

2. I expect a smooth reinstatement in Ohio after July 25, which is the date my reciprocal discipline expires.

I must express gratitude to the Character and Fitness Committee who recommended my reinstatement and the Kentucky Supreme Court for the 7-0 vote of reinstatement.

God blessed me with the Kentucky Supreme Court issuing their ruling the Friday before the Father’s Day weekend. It sure made for a better weekend. I also want to thank my wife, children, parents, in-laws, partners, employees, clients, friends, and fans who have been loyal and supported me during this process.

I must publicly thank Larry Forgy for being my co-counsel. I’d like to also thank Stan Billingsley who I believe is a catalyst for future rule changes that will improve the discipline process. In addition, Jon Yinger, the owner of Realtalk 1160, never wavered in his support. I also spoke to Willie every day and he kept lighting candles at St. Patrick’s Cathedral in New York City for me. My wife, Chuck Holbrook and Larry Forgy endured my daily repetitive analysis of what may happen and what options I had.

During this ordeal, I’m confident many clients didn’t contact me based upon the stigma of a bar battle and I couldn’t represent them while I was suspended. However, not a single lawyer, employee or client left our firm as a result of the bar battle.

If anyone is wondering, I’m still the Bulldog. However, I’m a wiser and improved version. It’s great to be back.

FLORIDA COURTS TO DITCH PAPER FILING AND GO ALL ELECTRONIC

Thursday, June 21st, 2012

June 25, 2012
In courthouses across Florida, shelves are lined with bulging files of legal documents.
But changes released Thursday by the Florida Supreme Court may lead to paper court files going the way of phone books and faxes in the increasingly e-world.
Justices unanimously approved rule changes that will require almost all court documents to be filed electronically. The changes, which have been extensively studied by Florida Bar rules committees and other groups, will gradually take effect by the end of 2013.
“The proposed amendments represent a significant and important step toward our goal of a fully electronic court system by transitioning from permissive to mandatory electronic filing,” Justice Barbara Pariente wrote for the court in a document approving the changes.
Parts of the state and federal court systems have already taken steps toward ditching the old paper-heavy way of doing business. The Florida Supreme Court and federal courts, for example, make copies of filings available online to the public — though fees are charged for accessing many federal court documents from outside of courthouse computers.
The Supreme Court said a number of Florida trial courts, as well as courts such as the 1st District Court of Appeal in Tallahassee, have moved forward with electronic records. But the new changes would essentially move from a system that permits filing electronic records to one that requires it.
The filing requirements will take effect April 1, 2013, in parts of trial courts that handle civil, probate, small-claims and family-law cases. They will take effect Oct. 1, 2013, in parts of trial courts that handle criminal, traffic and juvenile cases. Changes in electronic-filing procedures that affect the Supreme Court and district courts of appeal will take effect Oct. 1, 2012.
In a related move, justices also announced Thursday requirements for attorneys to serve legal documents to each other by e-mail.
Justices said they will phase in the court-filing requirements to make sure local clerks are able to accept and maintain electronic records. Also, it said state attorneys, public defenders and regional counsels, which accept cases that public defenders can’t handle, are under budget pressures that limit their ability to upgrade technology and train employees

“The new rules and amendments to existing rules we adopt represent an important step in this ongoing effort to change the ways that the judicial system operates from a paper world to an electronic world,” justices said in requiring the changes. “In that effort, the Court keeps at the forefront that our court system must be accessible, fair, and effective.”
Some attorneys, however, expressed concerns as the changes were being formulated. Those concerns, which were submitted in written comments, ranged from a preference for paper to worries about electronic security.
“I would respectfully note that I can count on one hand how many times mail has been lost, but I would need to use both hands and take off my shoes to start counting how many times emails have been lost,” Sarasota attorney Kurt E. Lee wrote at one point.
Justices included limited exemptions to the filing requirements, such as for people who represent themselves in cases. But the court pointed to several potential benefits in going electronic and said the Legislature also has backed such a move.
“As the Legislature has indicated, implementation of an electronic filing process should reduce costs, increase timeliness in the processing of cases, and provide the judiciary with case-related information to allow for improved case management,” the justices said in the document.

EXECUTIVE PRIVILEGE HAS HISTORICAL BASIS STARTING WITH GEORGE WASHINGTON

Thursday, June 21st, 2012

Washington (CNN) — President Barack Obama’s assertion of executive privilege ahead of a hearing before a House committee, which subsequently recommended his attorney general be cited for contempt of Congress, sets up a fight that has had mixed results in the past.

At stake are Justice Department documents relating to the flawed Fast and Furious gunrunning sting that House Oversight Committee Chairman Darrell Issa, R-California, wants in his hands, and that Attorney General Eric Holder says are confidential.

The White House move means the Department of Justice can withhold the documents from the committee, which recommended by a 23-17 vote Wednesday that Holder be cited for contempt.

The full House is expected to consider the motion next week.

More details: House panel recommends contempt citation

If it votes to issue a contempt citation, a statement of facts would be delivered to the U.S. Attorney in the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action,” according to the law governing contempt citations.

House spars over Holder contempt vote

King: Holder appears to be holding back
Executive privilege also has been around since the earliest days of the country, and gives the executive branch the ability to withhold certain internal discussions and documents from scrutiny.

“It’s there to give the executive branch some breathing room for its own deliberations,” said Josh Chafetz, professor of law at Cornell Law School.

Executive privilege “has a long history, but it often plays out very differently,” he said.

The last major confrontation over executive privilege also involved the Justice Department, but the partisan roles were reversed.

Q&A: What’s going on and what comes next

In 2007, President George W. Bush insisted that White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten wouldn’t testify under oath or provide subpoenaed information about the firings of nine U.S. attorneys, a controversy that had led to the resignation of Attorney General Alberto Gonzales the year before.

House Democrats, who were in the majority at the time, believed the firings were politically motivated and wanted to force the pair to testify about them.

The House voted 223-32 to cite Miers and Bolten for contempt (most GOP members walked out in protest), but when Congress sued the pair, the case never made it to court. It was settled between the two sides with mixed results: The House got some of the testimony it wanted, but not until 2009, when Obama was in office.

The real aim of Congress had been to get oversight of the Bush administration, but he had already left the White House when the information was made available, Chafetz said.

Historically, presidents’ claims of executive privilege rarely have been accepted by Congress. When power brokers from those two branches clash, it is often left to political expediency or the courts to sort out the competing interests.

Edward Lazarus, author of a book on the Supreme Court, “Closed Chambers,” said that when such a “showdown among two co-equal branches of government” occurs, “the judiciary often becomes the referee.”

iReport: Tell us what you think

The claim arises from the constitutional idea of separation of powers. The concept is not a settled legal precept, since it has been open to varying interpretations, and it remains a controversial, litigated part of government business.

“The main factor that courts usually use is internal deliberations,” said CNN Senior Legal Analyst Jeffrey Toobin. “The courts want to respect the president’s internal deliberations so he can get freely given advice from his aides. They don’t want to invade that privilege. However, that’s not an absolute privilege for everything that goes on in the White House.”

Constitutional groundwork

The U.S. Constitution does not expressly mention this idea of executive privilege.

President George Washington set the precedent in 1796 when he refused a House request for documents relating to how the Jay Treaty with Great Britain was negotiated.

The Supreme Court first decided the issue in 1807, during Aaron Burr’s separate trial for treason. Chief Justice John Marshall ordered President Thomas Jefferson to produce a letter that might have exonerated the former vice president. The court concluded the Sixth Amendment right of compulsory process did not exempt the executive branch.

The letter was turned over, but its contents never were publicly revealed, at Jefferson’s insistence. As may ultimately prove to be the case in the Fast and Furious controversy, the Burr issue was privately negotiated, without a subpoena being issued.

The high court has not spoken with one voice on executive privilege.

In 1927, it ruled that the executive branch was not protected from “legitimate” outside investigations. In 1948, presidential prerogatives were preserved in relation to private lawsuits where national security or military matters are involved.

Executive privilege claims have risen sharply since the 1950s, but most presidents since Dwight D. Eisenhower have assured Congress that such claims would only be asserted with their personal approval, as Holder indicated Obama did in this case.

Of Watergate and task forces

The biggest recent executive privilege case was U.S. v. Nixon in 1974, during the Watergate crisis. That involved a criminal grand jury subpoena for the president to turn over secretly recorded Oval Office audiotapes. The justices unanimously ruled against his legal claims, saying there was great national interest that the tapes be produced.

Nevertheless, for the first time the Supreme Court recognized the constitutional basis for executive privilege. “Nowhere in the Constitution … is there any explicit reference to a privilege of confidentiality,” that ruling said, “yet to the extent this interest relates to the effective discharge of a president’s powers, it is constitutionally based.”

The court then recognized that “those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their interest, to the detriment of the decision-making process.”

In other words, the Supreme Court laid out a balancing test of sorts: a basic need for executive confidentiality and candor, weighed against the public interests of congressional oversight, a criminal inquiry or prosecution.

President Bill Clinton’s first term produced an interesting legal dilemma that later popped in subsequent administrations. Then-first lady Hillary Clinton chaired a health care task force that was sued for closing to the public several meetings with government and private officials. The issue was whether she as the first lady was a government employee and therefore could claim executive privilege. A federal appeals court concluded she could.

The issue emerged again in 2001, when Vice President Dick Cheney was sued for his role chairing an energy task force. Only this time the issue was whether executive privilege applied to conversations by White House officials with those outside the government.

Cheney was taken to court by private groups and the Government Accounting Office seeking information on what energy company officials and lobbyists might have advised the group, whose conclusions later formed the basis of the administration’s energy policy. A lawsuit claimed those contacts improperly benefited private energy businesses.

The private lawsuit reached the Supreme Court after two years of legal wrangling, and the White House won a temporary victory. Justice Anthony Kennedy wrote, “Special considerations applicable to the president and the vice president suggest that the courts should be sensitive to requests by the government” in such appeals.

The government claimed in its legal brief that it is “clear that the president’s authority to receive opinions from executive officers is not subject to interference from or control by other branches” of government.

The case was sent back to the lower courts and, after about five years, was settled without the government turning over the requested documents.

The foreseeable future and beyond

Time may be on the side of the White House, if it is determined to see this issue played out in the courts. The case could take many months, or even years, to be resolved.

The use of contempt measures or executive privileges can blur the line between law and politics.

Congress benefits from having the Fast and Furious controversy viewed as an issue of tremendous national importance, and from affirming the power of the legislature to serve as a check on the executive. It has not been shy invoking the threat of subpoenas. Administration supporters have countered that the request for documents by the Republican-led oversight committee amounts to election-year politics, with the goal of embarrassing Obama.

The president has two centuries of precedent to rely upon, and no clear sign the courts want to resolve the issue with some bedrock finality.

“The executive branch is taking the long-term view of this,” said legal analyst Lazarus. “You need to develop golden rules in this situation that will apply regardless of who is in power, to come up with a fair way to hold the president accountable without unduly chilling speech with the executive branch.”

COAKY holds specialty licensure not necessary under Daubert, though it is factor to be considered; also finds error in trial court’s failure to hold Daubert hearing or at least make record supporting conclusions

Tuesday, June 19th, 2012

By David Kramer | dkramer@dbllaw.com

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In a recent criminal case that has broad applicability to civil actions, Lukjan v. Commonwealth, 358 S.W.3d 33 (Ky. App. 2012), the Kentucky Court of Appeals discussed the admissibility of expert testimony and evidence in an arson case.

The primary issues in Lukjan involved the Daubert standard for admissibility of expert testimony. The Court of Appeals held that a license from the Kentucky Board of Licensure for Private Investigators, required under KRS Ch. 329A for someone to “hold himself or herself out to the public as a private investigator,” including “engaging in the business of obtaining or furnishing information with reference to … [t]he cause or responsibility for fires,” is not a prerequisite for someone who is otherwise qualified to testify as an expert witness regarding the cause of a fire. Rather, the Court found that specialty licensure is a factor to be considered by the trial court under KRE 702 and Daubert. The defendant’s expert who had been excluded by the trial court had taught courses related to fire safety and fire investigations. The Court directed the trial court to determine from all the evidence whether the excluded expert met the criteria of KRE 702.

Conversely, in regards to the expert witnesses called by the Commonwealth, the Court held that the circuit court had failed to meet the requirements of KRE 702 and Daubert by not conducting an evidentiary hearing or considering an adequate record of the reliability of the Commonwealth’s expert testimony. Under Kentucky and federal law, a trial court generally must conduct a Daubert hearing unless it makes a statement on the record that the court has reviewed relevant material and has made findings of the reliability of the expert’s testimony. In doing so, the trial court does not have to expressly recite the Daubert factors as long as the record establishes that the court conducted a Daubert inquiry.

The Court reversed the defendant’s arson conviction and remanded for a new trial based on these errors.

Lukjan is final and has been published in the South Western Reporter.

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

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UK President Hires Attorney Not Licensed In Kentucky – This appears to violate Supreme Court Rules and KRS 524.130

Tuesday, June 19th, 2012

The University of Kentucky President has appointed Tennessee Attorney Kim Vance to serve as
Acting General Counsel until a permanent Counsel can be identified.

Ms. Vance is not listed on the KBA Bench & Bar membership as being licensed in Kentucky.
Her VC lists her as being admitted to practice law in Tennessee, but not in Kentucky.
We have no doubt Ms. Vance is a very talented and qualified corporate attorney, but we find no
authorization for her to practice law in Kentucky.

One possible method UK could use to hire the Tennessee attorney is to seek approval through SCR 2.111. This rule was adopted to allow corporations bypass the rules that apply to other attorneys. One still wonders why the President of UK would have to go to Tennessee to hire a lawyer when there are hundred of qualified Kentucky lawyers.

SCR 2.111 Limited certificate of admission to practice law
(1) Every attorney not a member of the Bar of this Commonwealth who performs legal services in this Commonwealth solely for his/her employer, its parent, subsidiary, or affiliated entities, shall file with the Kentucky Office of Bar Admissions on a form provided, an application for limited certificate of admission to practice law in this Commonwealth. Such application shall be reviewed by the Character and Fitness Committee. If approved, a limited certificate of admission to practice law shall be granted, and shall be effective as of the date such application is approved, provided that the following prerequisites are satisfied.
(a) The applicant must be admitted to practice in the highest court of another state or the District of Columbia, and be a member in good standing at the Bar of such court, or in such state, at the time of filing such application.
(b) The attorney applying for limited certificate of admission to practice law shall sign a sworn statement certifying to the Court that:
(i) He/she has completed the study of law in an accredited law school;
(ii) He/she has been admitted to practice in the highest Court of another state or the District of Columbia;
(iii) He/she is presently in good standing at the Bar of such Court, or such state;
(iv) He/she will perform legal services in this Commonwealth solely for his employer, its parent, subsidiary, or affiliated entities.
(c) A statement signed by a representative of such applicant’s employer stating that such applicant is an employee for such employer, and performs legal services in this Commonwealth for such employer, its parent, subsidiary, or affiliated entities, shall be filed with the application.
(2) Such applicant shall pay to the Kentucky Office of Bar Admissions, at the time of submission of such application a fee of one thousand dollars ($1,000) and shall make payment of the current annual dues or fees to the Kentucky Bar Association, as authorized under SCR 3.040.
(3) Upon granting of such limited certificate of admission to practice law, and issuance of said limited certificate by the Clerk of the Supreme Court of Kentucky, such applicant shall be and shall remain, during the period the limited certificate of admission to practice law remains in effect, an active member of the Kentucky Bar Association, subject to all duties and obligations of members admitted under SCR 2.110, SCR 2.120 and SCR 3.661.
(4) The only restrictions and limitations applicable to such membership in the Kentucky Bar Association and to such attorney’s right to practice in this Commonwealth shall be:
(a) Such attorney shall perform legal services in this Commonwealth solely for his employer, its parent, subsidiary, or affiliated entities, and shall not provide legal services in this Commonwealth, to any other individual or entity.
(b) Such attorney shall not appear as attorney of record for his employer, its parent, subsidiary or affiliated entities, in any case or matter pending before the Courts of this Commonwealth, without first engaging a member of the Association, admitted under SCR 2.120 or SCR 2.110, as co-counsel, whose presence shall be necessary, when required by the Court, at all trials or other times specified by the Court. Nothing herein shall prevent such attorney from appearing on his/her own behalf or representing himself/herself in any case or matter to which he/she is a party, or appearing in the Small Claims Division of the District Court as otherwise provided in Rule 3.020.
(5) The performance of legal services in this Commonwealth solely for such attorney’s employer, its parent, subsidiary, or affiliated entities, following admission to the Kentucky Bar on a limited certificate shall be considered to be the active engagement in the practice of law for all purposes.
(6) The limited certificate of admission to practice law in this Commonwealth shall expire if such attorney is granted a certificate of admission to practice, or is admitted to the Bar of this Commonwealth under any other rule of this Court, or if such attorney ceases to be an employee for the employer or its parent, subsidiary, or affiliated entities, listed on such attorney’s application, whichever shall first occur; provided, however, that if such attorney, within thirty (30) days of ceasing to be an employee for the employer or its parent, subsidiary, or affiliated entities listed on such attorney’s application, becomes employed by another employer for which such attorney shall solely perform legal services, such attorney may maintain his admission under this Rule by promptly filing with the Clerk of the Supreme Court a statement to such effect, stating the date on which his prior employment ceased and his new employment commenced, identifying his new employer and reaffirming that he shall not provide legal services, in this Commonwealth, to any other individual or entity. In the event that the employment of an attorney admitted under this rule shall cease with no subsequent employment by a successor employer within thirty (30) days, such attorney shall promptly file with the Clerk of the Supreme Court a statement to such effect, stating the date that such employment ceased.
(7) Except as specifically limited herein, the rules, rights and privileges governing the practice of law shall be applicable to an attorney admitted under this Rule
HISTORY: Amended by Order 2009-12, eff. 1-1-2010; prior amendments eff. 1-1-04 (Order 2003-
4), 1-1-02 (Order 2001-2), 2-1-00 (Order 99-1), 8-1-92 (Order 92-1), 1-13-86; adopted eff. 7-5-85

This is an issue due to the strict attitude the KBA and Bar Counsel’s Office have regarding to the
Unauthorized Practice of Law. Perhaps there are plans for Ms. Vance to become licensed in
Kentucky, but until that happens, we believe this is an issue that should not be overlooked.
LawReader interperts Ky. Practice rules to prohibit a lawyer not licensed in Kentucky to practice law in Kentucky, and giving legal advice to the President of the Univ. of Kentucky is clearly defined as the practice of law.
Countrywide Home Loans v. Kentucky Bar, 113 S.W.3d 105 (Ky., 2003)
August 21, 2003
Our Supreme Court rules define the practice of law as “any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.” The General Assembly has criminalized the unauthorized practice of law, 12 and our disciplinary rules prohibit attorneys from “[a]ssist[ing] a person who is not a member of…
Unauthorized Practice of Law
Only licensed attorneys may practice law in Kentucky. The practice is regulated exclusively by the court. The compelling reason for such regulation is to protect the public against rendition of legal services by unqualified persons. Kentucky Rule of Professional Conduct (RPC) 5.5. The practice of law is defined by SCR 3.020 as any service: “involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.”
The “unauthorized” practice of law is the performance by those services contained in the definition by “non-lawyers” for “others.”
SCR 3.020.
KRS 524.130:
(1) Except as provided in KRS 341.470 and subsection (2) of this section, a person is guilty of unlawful practice of law when, without a license issued by the Supreme Court, he engages in the practice of law, as defined by rule of the Supreme Court.
(2) A licensed nonresident attorney in good standing, although not licensed in Kentucky, is not guilty of unlawful practice if, in accordance with rules adopted by the Supreme Court, he practices law under specific authorization of a court.
(3) Unlawful practice of law is a Class B misdemeanor.

Ohio Continuing Legal Education Changes Proposed

Tuesday, June 19th, 2012

June 11, 2012

Proposed continuing legal education (CLE) changes announced today by the Ohio Supreme Court would double the number of online credit hours attorneys could earn, allow attorneys to earn a portion of their CLE hours by engaging in approved pro bono activities, and eliminate the requirement to file final reporting transcripts.

The Ohio Supreme Court will accept public comment until July 10 on the proposed changes.

According to Attorney Services Director Susan Christoff, the proposed changes to Gov. Bar R. X resulted from a year-long study by the Commission on Continuing Legal Education and incorporated feedback from a survey of the state’s judges and active attorneys about what changes they would like made to CLE requirements.

Under the proposed rule changes, the self-study credit hours an attorney could earn each biennial period would increase from 6 to 12 hours.

As for pro bono credit, attorneys could receive 1 hour of CLE credit for every 6 hours of pro bono service up to a maximum of 6 credit hours for service performed during a biennial compliance period. To be eligible for such credit, the attorney’s pro bono service must be verified by a bar association or other organization recognized by the commission as providing pro bono programs and services in Ohio.

Attorneys still will be required to earn 24 hours every 2 years and be subject to monetary sanction and suspension for failing to meet the minimum hour requirement. However, attorneys no longer would be required to file a final reporting transcript.

Several other CLE changes are proposed as well.
•Credit could be awarded for presentations that occur concurrent with the consumption of a meal.
•The range of recommended sanction fines for noncompliant attorneys would be lowered for hour deficiencies with the upper limit reduced from $500 to $300.
•The time deadline in which attorneys would need to cure their hour deficiencies would be moved up by almost a month.

As for judges, they would be required to obtain 3 hours of “judicial conduct” instruction through courses offered by the Judicial College. Judicial conduct includes instruction on judicial ethics, professionalism, access to justice and fairness in the courts, and/or alcoholism, substance abuse, or mental health issues. Judges would no longer be required to take 2 separate hours of instruction on access to justice and fairness in the course but may include such instruction toward their 3-hour judicial conduct requirement.

Access the text of the proposed CLE changes.

Comments should be submitted in writing to:

Susan Christoff, Director, Attorney Services Division
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
or
susan.christoff@sc.ohio.gov

Secret courts bill under attack as House of Lords prepares for second reading – Isn’t this what we have in Ky. Attn. discipline hearings?

Tuesday, June 19th, 2012

(This article invites comparison with Kentucky’s Secret Court Hearings in Attorney Discipline Cases – LawReader.)
Reforms go against principles of open and adversarial system of justice say campaigners, lawyers and MPs
Ken Clarke says secret hearings would preserve evidence gathered by intelligence agencies without releaseing it into the public domain. Photograph: Dave Thompson/PA
Plans for secret hearings in civil courts being put before parliament on Tuesday “offend the principle of open justice”, a prominent Conservative MP has warned the government.
Andrew Tyrie, the member for Chichester who is chair of the all party group on rendition, has challenged ministers to abandon the proposals which he says are more in tune with a dictatorship than a democracy.
His comments to the Guardian are further evidence of widespread unease among senior lawyers and constitutional experts over the justice and security bill, which has its second reading in the House of Lords on Tuesday afternoon.
Last week, the Lords’ constitution committee, whose members include Lord Irvine, the former lord chancellor, and Lord Goldsmith, the former attorney general, described the expansion of secret hearings into civil courts as “flawed” and “unfair”.
….”It also offends the principle of open justice. However the government describes this, others will, with some justification, be able to describe this as ‘secret courts’. Secret courts and impunity for state officials involved in wrongdoing sound more like the tools of dictatorships than Britain.
…The civil rights organisation Liberty is planning a protest outside the supreme court to coincide with the second reading of the bill, deploying bouncers to emphasise that ordinary members of the public and claimants will be kept out of court by the new rules on secret hearings.
Liberty’s director, Shami Chakrabarti, said: “We will never shine a light on abuses of power by turning British courts into secret commissions locked away from victims, the press and public.
…The legal reform campaign, Justice, condemned the bill as “unfair, unnecessary and unjustified” and likely to “undermine public confidence in the administration of civil justice [as well as] damaging the credibility of our judiciary”.

U.S. SUPREME COURT HEALTH CARE RULING EXPECTED LAST WEEK OF JUNE – Discussion of how the court works behind the curtain

Sunday, June 17th, 2012

June 16, 2012

By Bill Mears, Washington (CNN) — Winners and losers are the natural consequence of the American legal system. In the Supreme Court, five majority votes among the nine members are enough to fundamentally change lives and legacies.

The high court in coming days will issue rulings in perhaps its most important appeal in a dozen years: whether the sweeping health care law championed by President Barack Obama will be tossed out as an unconstitutional exercise of congressional authority.

The stakes cannot be overstated — what the justices decide on a quartet of separate questions will have immediate and long-term impact on every American, not only in the field of medicine but in vast, untold areas of “commerce.” Health care expenditures alone currently make up 18% of the U.S. economy, and the new law promises to significantly expand that share.

“I think the justices probably came into the argument with their minds made up. They had hundreds of briefs and months to study them,” said Thomas Goldstein, publisher of SCOTUSblog.com and a prominent Washington attorney. “The oral arguments [in March] might have changed their minds around the margin. But we won’t find out until the end of June.”

A century of federal efforts to offer universal health care culminated in the 2010 passage of the Patient Protection and Affordable Care Act. After months of bare-knuckled fights over politics and policy, the legislation signed by Obama reached 2,700 pages, nine major sections and 450-some provisions.

At issue is the constitutionality of the “individual mandate” section — requiring nearly all Americans to buy health insurance by 2014 or face financial penalties. Twenty-six states in opposition say if that linchpin provision is unconstitutional, the entire law must go. The partisan debate around such a sweeping piece of legislation has encompassed traditional hot-button topics: abortion and contraception funding, state and individual rights, federal deficits, end-of-life care, and the overall economy. The high court now has the final word.

The court will not say precisely when the health care opinions will be released, but the last scheduled public session of the term is set for June 25. Depending on how long it takes the justices to finish up, that deadline could easily slip a few days.

The justices have already secretly voted on the health care cases, as well as a dozen or so other separate appeals. They met privately as a group just days after the late March arguments, voting preliminarily. Individual justices were assigned to write the one or more opinions, as well as separate dissents. Only they and their law clerks know how this will end.

And no one is talking — that’s an unbroken tradition of discretion rare in leak-loving Washington.
“At the Supreme Court, those who know, don’t talk. And those who talk, don’t know,” Justice Ruth Bader Ginsburg said Friday in a speech at the American Constitution Society convention in Washington.

The court holds fast to an unofficial but self-imposed deadline to have all draft opinions finished by June 1. They are circulated to colleagues, and subsequent dissents and concurrences must be submitted by June 15. Nothing is final until the decision is released to the public. Votes can and do change at the last minute.

The last two weeks beginning Monday will be the busiest, most chaotic time. Justices and their law clerks are holed up in chambers, furiously working to frame and craft the final opinions, making sure every fact, every footnote, every legal theory is fully checked and articulated. The nine members know they are writing their legacies with this one issue. The outcome may be disputed, but the constitutional reasoning– at least in their own minds– must be sound.
“Getting themselves organized, identifying the different majorities, getting opinions written and circulated in dissents and concurrences will really test their capabilities in the final days,” Goldstein said.

The opinion-writing exercise is little-known, and the court likes it that way. Consistently predicting the outcome is a time-honored Washington parlor game, but rarely successful.

“Obviously everybody in a case of this magnitude is trying to read tea leaves. I think it’s hard to read tea leaves,” Paul Clement, lawyer for the 26 states opposing the law, told CNN Correspondent Kate Bolduan moments after the last of the cases were argued March 28. “I suppose if half the justices were snoozing through it, that would have been a bad sign for my side of the case. They obviously weren’t snoozing through it.”

The first lawsuits challenging the health care overhaul began just hours after the president signed the legislation two years ago. After a series of reviews in various lower federal courts, the petitions arrived at the high court in November, when the justices decided to review them. Written briefs were filed, oral arguments held.

The court is considering four key questions:

• Does the law overstep federal authority, particularly with the “individual mandate?”
• Must the entire Patient Protection and Affordable Care Act be scrapped if that key provision is unconstitutional?

• Are the lawsuits brought by the states and other petitioners barred under the Anti-Injunction Act, and must they wait until the entire law goes into effect in 2014?

• Are states being “coerced” by the federal government to expand their share of Medicaid costs and administration, with the risk of losing that funding if they refuse?

Everything hinges on the mandate, also known as the “minimum coverage” or “must-buy” provision. It is the key funding mechanism — the “affordable” aspect of the Patient Protection and Affordable Care Act — that makes most of the other 450 or so provisions possible.

It would require nearly all Americans to buy some form of health insurance beginning in 2014 or face financial penalties. May the federal government, under the Constitution’s Commerce Clause, regulate economic “inactivity”?

The coalition of 26 states led by Florida says individuals cannot be forced to buy insurance, a “product” they may neither want nor need. The Justice Department has countered that since every American will need medical care at some point in their lives, individuals do not “choose” to participate in the health care market. Federal officials cite 2008 figures of $43 billion in uncompensated costs from the millions of uninsured people who receive health services, costs that are shifted to insurance companies and passed on to consumers. The law would expand insurance by at least 30 million people, according to government estimates.

As with multiple questions, the justices have multiple options: allowing the mandate to stand or fall; if it falls, keeping all, parts, or none of the rest of the law; issuing a definitive statement on the centuries-long tension between federal and state power; treating health care as a unique aspect of “market” activity, allowing an exception upholding the law; and deciding who will craft the all-important opinions.

“Anyone who says the individual mandate isn’t in any trouble is just deluding themselves,” Goldstein said. “It’s not clear that it will be struck down but you cannot say from those arguments, that it’s anything other than a toss-up. The [Obama] administration had as hard a time from those justices as they could have expected, and they are desperately hoping that they can pull together a fifth vote in favor of the mandate.”
The justices never discuss internal strategy, and the full story of how health care was decided in the marble halls of the court may never be fully known.

The current waiting game has prompted anxiety and a touch of political rancor outside the court.
Legal sources say the White House has quietly set up an informal “war room” of sorts, ready to respond when the rulings are handed down.

Low-key coordination is under way between the White House Counsel’s office, Political Office, senior Oval Office and campaign staff, Capitol Hill Democrats, as well as select outside advisers and friendly advocacy groups.

Republicans are quietly doing the same, with outreach to conservative activists and candidates. Managing the message will be all-important in a presidential election year.

Publicly, Obama has said he was “confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress, and I just remind conservative commentators that for years, what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.”
Some conservative critics interpreted those remarks as a challenge to judicial authority, suggesting Obama was putting direct political pressure on the high court. Patrick Leahy, D-Vermont, chairman of the Senate Judiciary Committee, urged the bench — and Chief Justice John Roberts in particular — to “do the right thing” and uphold the mandate.

Presumptive Republican presidential candidate Mitt Romney used the same words when urging a different outcome.

“I hope they do the right thing and turn this thing down,” Romney told donors last week in Atlanta. “And say it’s unconstitutional, because it is.”

No one doubts the health care cases will have an immediate impact on Obama’s re-election chances, as well as the long-term credibility of the federal courts, which are supposed to be beyond politics.

Recent polling suggests a “legitimacy crisis” in the Third Branch. A New York Times/CBS poll this month shows only 44% of Americans approve of the Supreme Court’s job performance — a steady drop over recent years. Three-quarters of those polled now say the justices are sometimes influenced by their political views.

A separate CNN/ORC International poll released June 8 found a majority — 51% — oppose the health care law in general, most because they think it is “too liberal,” while 13% think it is “not liberal enough;” 43% of those surveyed favor the law.

The key players could be two conservatives on the court: Roberts and Justice Anthony Kennedy, long labeled a “swing” vote.

“With the four more liberal justices almost certain to vote to uphold the individual mandate, the administration is really hoping for the votes of either the chief justice, who signaled that he had questions for both sides,” said Goldstein, “or the traditional swing vote in the court, Anthony Kennedy, who really was tough on the government lawyer but toward the end suggested that maybe insurance was special enough that he could vote to uphold the mandate.”

Roberts has long talked about achieving consensus on divided issues, saying it brings long-term credibility and public confidence to the court’s work. It has been mostly a pipe dream, as his nearly seven years of leadership has shown a continuing 5-4 conservative-liberal split on most hot-button issues.
“The court is bitterly divided over the individual mandate,” Goldstein noted, “so if the administration is going to get his vote, it’s either because he believes in a broad federal power or that he doesn’t believe that the Supreme Court shouldn’t overturn such an incredibly important economic statute.”
Health care will soon enter the history books, among the handful of the high court’s greatest cases, the outcome no doubt monumental — legally, politically, socially. An issue that affects every American will naturally attract that kind of attention.

Picking winners and losers at this stage is a subjective, even partisan, exercise. The court itself will be both cheered and vilified however it rules. But as an institution, it has survived similar crises of confidence over its discretionary authority: slavery, racial integration, corporate power, abortion — even Bush v. Gore.

Rapid-fire reaction to health care will be swift and furious, from the campaign trail, professional punditry, and halls of government. Some individual Americans stand to gain from the decision, others could be hurt — financially, emotionally, and physically.

So why entrust all this in the hands of nine judges?

The Supreme Court usually gets the last word in these matters, regardless of whether one agrees with their decisions — even matters of life and death, which many argue are the stakes in this health care debate.

Justice Robert Jackson may have put it best: “We are not final because we are infallible, but we are infallible only because we are final.”

FREE SPEECH – WHAT RIGHTS DO YOU HAVE?

Saturday, June 16th, 2012

FREE SPEECH – TUTORIAL

Written by Michael P. Stone and Melanie C. Smith

It is well settled that a state cannot condition public employment upon a total relinquishment of constitutional rights, such as freedom of expression. At the same time, public employees do not enjoy absolute freedom when it comes to their employment. The seminal case on the issue of public employees’ First Amendment rights is Pickering v. Board of Education of Township High School District (1968) 391 U.S. 563. Pickering held that a public employee’s speech or expression is constitutionally protected if it deals with a matter of public concern, and the public employer may liable for taking adverse action against the employee in retaliation for the employee’s constitutionally protected expression. Pickering created a balancing test, which requires courts to strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568.

Nearly 40 years later, the present Supreme Court gutted public employees’ rights established by Pickering and its progeny. Garcetti v. Ceballos (2006) 547 U.S. 410, dealt a severe blow to public employees’ First Amendment rights, by holding that a public employee’s speech is not protected if it is made pursuant to the employee’s official duties. Using the “as a citizen” language from Pickering, Garcetti drew a line between cases where the speech is made outside an employee’s duties, in his capacity as a private citizen (such as the plaintiff in Pickering, a teacher who wrote a letter to the editor of a newspaper expressing his disagreement with the school board), and cases where the employee’s speech is made through the performance of his official duties or job description (such as the plaintiff in Garcetti, a prosecutor who voiced concerns to his supervisor about whether to prosecute a case).

Our previous articles have examined recent Ninth Circuit decisions that have applied the Garcetti holding in cases where employees’ speech or expression was made pursuant to official duties. The most recent Ninth Circuit decision on this issue, Nichols v. Dancer (9th Cir. 2011) No. 10-15359, — F.3d —-, 2011 WL 4090676, concerns a public employee’s expression not made in the performance of her official duties, and thus still constitutionally protected. The specific issue in Nichols is the evidence of workplace disruption required in order to tip the Pickering balancing test in favor of the employer.

Kathleen Nichols was employed by the Washoe County School District as an administrative assistant to the District’s General Counsel, Larry Blanck. Nichols and Blanck were friends and sometimes socialized outside the office. Blanck was suspended after a dispute with the District Superintendent, and Nichols was temporarily transferred to the Human Resources department, pending the decision on Blanck’s employment. Slip op. at 17587-17588.

Nichols attended a public Board of Trustees meeting where a variety of matters were scheduled for discussion, including the issue of Blanck’s employment. Prior to the meeting, head of Human Resources Laura Dancer had told Nichols she would be returned to her position in the General Counsel’s office regardless of whether Blanck was fired. At the Board of Trustees meeting, Nichols sat next to Blanck but did not speak to him. Blanck’s termination was announced at the meeting. Slip op. at 17588.

The next day, Dancer informed Nichols that she would not be returned to the General Counsel’s office because there were concerns about her loyalty to the District, as a result of her attendance at the Board meeting and her choice to sit next to Blanck. Nichols was told she could remain in Human Resources, where her salary would be frozen, or she could take early retirement. Nichols chose early retirement and filed a lawsuit in federal court against the District for demoting her in retaliation for exercising her First Amendment rights. Slip op. at 17588-17589.

At the trial level, the District moved for summary judgment, arguing that Nichols’ conduct was not constitutionally protected because it was not related to a matter of public concern and because Nichols’ First Amendment interests were outweighed by the District’s interests in an efficient workplace. The trial court held that the conduct did touch on a matter of public concern but agreed with the District that the Pickering balancing test tipped in favor of the District. The trial court granted summary judgment for the District, and Nichols appealed to the Ninth Circuit. Slip op. at 17589.

The question for the Ninth Circuit was whether, under the Pickering balancing test, the District’s interests in an efficient workplace outweighed Nichols’ interest in freedom of expression as a matter of law. Citing a number of cases that further explained the factors involved in the balancing test, the Court pointed out that in order for the District’s interests to outweigh Nichols’ First Amendment interests, the District must be able to show evidence of actual disruption of workplace operations or “reasonable predictions of disruption.” Slip op. at 17589-17591.

The Court stated, “Although we accord significant weight to an employer’s reasonable judgments about the workplace, an employer cannot prevail under Pickering based on mere speculation that an employee’s conduct will cause disruption…[A] disruption claim must be supported by some evidence, not rank speculation or bald allegation.” Slip op. at 17591.

In this case, the Court held that the District provided no evidence to support the claim that Nichols’ conduct disrupted workplace operations, interfered with Nichols’ job performance, or negatively affected her relationships with other employees. The District’s predictions of workplace disruption were pure speculation. The District further argued that Nichols’ association with Blanck created a conflict with her position in the General Counsel’s office because she would have had access to information about Blanck’s wrongful termination suit, but the Court rejected this argument, stating there was no evidence of disloyalty on the part of Nichols. Slip op. at 17592-17594.

Speech or expression by public employees, made in their capacity as private individuals and not pursuant to their official duties, is still constitutionally protected, subject to a balancing test. Nichols v. Dancer offers support for public employees’ First Amendment rights, by clarifying that a public employer may not prevail on the Pickering balancing test through mere speculation. Actual disruption of workplace operations or reasonable predictions of disruption must be shown before the employer will be allowed to restrict the employee’s First Amendment rights.

What does this mean for you?

We have discussed previously that law enforcement officers must be wary when it comes to speech made pursuant to their official duties, which is not constitutionally protected, particularly because it is a peace officer’s duty to be truthful and to report violations of law or department rules, so a great deal of a peace officer’s speech may be considered “pursuant to official duties” under Garcetti and the cases following that decision. When it comes to speech made outside of your official duties, however, Nichols v. Dancer is a step towards solidifying your constitutional protections. An employer cannot restrict speech made outside of your official duties on the basis that it simply “might” lead to a disruption in the workplace, or any of the other usual employer assertions about potential harm that might result from an employee’s protected expression, such as “loss of public confidence” and “loss of esprit d’corps” or employee morale.

Here are some other tips to keep in mind when contemplating the exercise of free expression:

1. Be sure the content of your speech is really a matter of public interest or concern. Remember that public employee speech is “protected” only if it is important for the citizenry to hear or know.

2. Remember that personal gripes, complaints, and grievances have no First Amendment protection.

3. Be mindful of the “time and place factors.” Speech made on-duty and/or on the premises of the employer is entitled to less protection.

4. Be careful about the manner and nature of the speech; that is, vulgar, profane, threatening, or unduly harsh or argumentative and insulting speech may not be protected. Be respectful and professional. Avoid disrespectful commentary that adds no value to the content of the speech.

5. If you have an opportunity to discuss your proposed speech with a lawyer who is familiar with the law of public employee expression, do so, and follow the advice you get.

6. Before you talk, be able to articulate why the content of your speech affects the public interest. Force yourself to do this. If you can’t articulate why the public might care, consider abandoning the idea.

7. In your speech, be sure to include some explanation of why you think this is important for the public to hear or read. Here again, if you can’t do this easily, it is a good bet that your speech won’t be protected.

8. Make sure you have some record of exactly what you say. You’d be surprised to know how often “speech misconduct” cases turn on differing recollections of exactly what was said. Expect that your employer will credit its own interpretation of what you said, rather than what you “meant to say.”

9. Speech about facts are different from speeches about opinion. Public speeches that contain misrepresentations of fact might be misconduct standing alone. It is usually no defense to respond, “Gee, I thought what I said was true or factual. I made a mistake.” Recognize that even protected speech which is offensive or harmful to your agency or its officials will cause your employer to scrutinize every word. Employers will seize upon even slight misrepresentations to allege that “false statements” were made.

10. On the other hand, statements of opinion may be very valuable to the public – especially if the speaker is someone who, as result of his or her employment, has special knowledge not available to the public. Statements of honestly-held beliefs are much “safer” than unequivocal statements of fact.

11. Be sure to “qualify” your speech. You are speaking “as a citizen,” not as an official or public employee. You are not authorized to speak for the agency, and you are not doing so. Be very clear about this. Caution your audience that your remarks represent your understanding of the facts, and that they are your opinions based on your understanding of the facts. Be willing to say if asked, that your opinions might well change if your understanding of the facts turns out to be incorrect.

12. Be very circumspect about the decision to wear your uniform or otherwise appear to be connected with the agency. It’s best to leave the uniform in your locker.

STAY SAFE!

Michael P. Stone
Melanie C. Smith

Michael P. Stone is the firm’s founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 30 years, following 13 years as a police officer, supervisor and police attorney.

Melanie C. Smith is an associate with the firm and is a graduate of Loyola Law School, Los Angeles.