Archive for September, 2012

What Is the Kentucky Supreme Court’s Position on the Use of Social Media by Jurors? By Nicholas M Nighswander

Saturday, September 29th, 2012

Earlier this year in our February 23rd newsletter, we discussed a local Cincinnati, Ohio divorce case about a rant on Facebook by the ex-husband and the Court’s requirement that he post an apology to his ex-wife on the site.

In a case of first impression in Kentucky in the Commonwealth vs. Ross Brandon Sluss, ___ S.W.3rd ____, rendered September 20, 2012 to be published, the Kentucky Supreme Court weighed in on the topic of social media sites like Facebook and its effect on jury selection in a murder case.

After a jury trial, Mr. Sluss was convicted of murder, assault, tampering with evidence and driving under the influence for causing a collision in June, 2010 while driving his Ford F-150 pick up truck and running into an SUV. The SUV was carrying other passengers including an eleven year old girl who died from the crash. Mr. Sluss was given a life sentence.

A blood test of Mr. Sluss revealed no more than therapeutic levels of several prescription drugs, among which were Xanax, Oxycontin, and Lortab under their generic terms. Mr. Sluss also admitted at the crash scene to smoking marijuana earlier in the day prior to driving. He thereafter was arrested and indicted for first degree murder among the other charges mentioned above including being a persistent felony offender.

As a result of the inflammatory nature of the facts of the case and the death of the child, the case received substantial publicity. The mother of the deceased child also set up a Facebook page about the case.
Mr. Sluss raised 16 issues on appeal. The Kentucky Supreme Court narrowed it to two for purposes of this initial appeal. The first issue addressed Mr. Sluss’ motion for a directed verdict on the murder charge due to only therapeutic levels of prescription drugs. The denial of his motion by the trial court was upheld on appeal under the “totality of the circumstances” test, which is a legal standard for another day and letter.

The second issue was much more troubling to the Court and is the focus of this letter today. It involved Facebook and jurors “friending” the mother of the little girl prior to or during the trial and whether Mr. Sluss was given a fair and impartial jury to try him on the charges as a result of the use of the Facebook social media site.

During voir dire, the questioning of potential jurors at the beginning of the case, it appears at least two jurors did not answer completely or truthfully about their use of Facebook and their knowledge of the mother’s Facebook page about the case and her daughter. One of them turned out to be the foreperson of the jury. However, this information was not learned until after the verdict, which creates a problem for lawyers under existing Kentucky law in contacting jurors after a trial or investigating juror bias before and during trial.

In a thorough analysis of the law and the facts in this case, Justice Noble, on behalf of the Court, opined that Mr. Sluss was entitled to a further hearing within 60 days of the date of the decision to investigate juror misconduct from which the trial court was to enter additional findings of fact and conclusions of law. The Court remanded the case back to the trial court for that hearing. The trial court was granted wide discretion to find out when the jurors “friended” the deceased child’s mother, the nature and extent of the friending, and anything else the trial court deemed relevant to the inquiry. The trial court’s decision on the hearing will be appealable for Mr. Sluss.

In its decision, the Kentucky Supreme Court adopted the State of New York’s professional ethics rule to guide Kentucky attorneys as to when they can review social media site(s) for juror bias in order to impanel a fair and impartial jury.
A full text of the Kentucky Supreme Court’s Opinion can be found at:

http://opinions.kycourts.net/sc/2011-SC-000318-MR.pdf

This case is not yet final and cannot be cited as authority until then.
Know your rights and stay within the law.
For more information about personal legal issues click on Read More

About Our Law Firm
Nicholas M Nighswander PLLC Attorney at Law was established to help clients with their personal legal problems. We do not represent big businesses and corporations. Your legal problem is our problem and we want to have a positive impact with you in doing the best to solve it.
Nicholas M Nighswander PLLC Attorney at Law
(859) 746-1259
e-mail address: nicklaw@fuse.net

THE COURIER-JOURNAL PUBLISHED A STORY ON SATURDAY SEPT. 29TH. ABOUT AN ARTICLE WRITTEN BY THE NEWLY APPOINTED KBA BAR COUNSEL THOMAS GLOVER. We chose not to publish this story about statements made 18 years ago.

Saturday, September 29th, 2012

By LawReader Senior Editor Stan Billingsley Sept. 29, 2012

We note that Thomas Glover is a Viet Nam veteran. He has earned our respect, and while some may read his l994 article as critical of only female lawyers, then we disagree
LawReader had this story for some time, and our review of the article and supporting letters from Fayette Bar Members and Glover’s subsequent explanation of the meaning of his article caused LawReader to decide not to publish the story.

The Glover article was written in 1994 (eighteen years ago) and was published in the Fayette County Bar news while he was president of the Fayette County Bar Association.

The letter was followed by a letter from bar members who were critical of Glover’s article. He allowed this critical response to be published. Further we read a letter from Glover to the Fayette Bar apologizing for his comments and with an explanation of his real meaning.

We were advised that the Executive Committee of the KBA reviewed Glover’s article and discussed it with him, and they decided to ignore a statement he made l8 years ago and hired him as Bar Counsel.
We passed the original Glover letter around the LawReader office and asked all the women in our office to comment on the letter. All the women in our office agreed that the intent of the letter, as they read it, was not an attack on female lawyers any more than it was upon male lawyers.

We decided that this old letter was not news, was not an attack on female lawyers, and should not be used against him. We have been very critical of the KBA and the Bar Counsel’s office, for many issues, but we believe that Glover is right for this job, and the KBA handled this issue correctly.

We interpret Glover’s letter as saying that in general the hostility that many lawyers have for one another has increased over the years. In 1971 when I was admitted to the Bar we had only 3,700 lawyers in Kentucky, today we have over 17,000. In l971 almost any lawyer could graduate from law school, hang up a shingle and from day one could make a decent living.

Older lawyers took care of younger lawyers. I was helped many times by lawyers from other firms when I went to them with a question. We did have a brotherhood and we tried to take care of each other. Today that attitude of comradeship has diminished. Glover’s observations that the practice of law has changed over the years is accurate.

We don’t blame the increase in the number of female lawyers for this change in attitude. We have seen many examples of male lawyers who never give the benefit of the doubt to other lawyers, and too easily attack their opponents character whenever they have any complaint real or imagined.

Glover did comment that lawyers should treat one another with respect. If he brings that mature attitude to his new job as Chief Prosecutor of the Bar Counsel’s office, then it will be a vast improvement over what we have seen in that office in the last eight years.

The KBA has just suffered a major embarrassing defeat in the John M. Berry Jr./ACLU loss in the Sixth Circuit Court of Appeals. This attack by the KBA Bar Counsel against an attorney who merely expressed political thought, has cost the KBA $400,000 in attorney fees and court costs. This original complaint should have been dismissed, and the Bar should have apologized for trying to sanction Berry for this thoughts.

We are hopeful that Glover’s mature analysis of problems within the Bar regarding tolerance of other lawyers, will prevent the “excessive prosecution” attitude which was expressed by a person close to the KBA when Linda Gosnell was fired.

In my 41 years in the practice of law I have seen many prosecutors, who were male, and who had a hostile attitude against other lawyers. This had nothing to do with his gender.
We conclude that after reading Glover’s l994 article he did not limit his comments only to female lawyers. We support his right to freely express his opinions, and we respect the rights of those who interpret his article differently than we do, but we chose not to run this story, as it has been misinterpreted, and the overall message was merely a call for more civility in the practice of law.
I have never met Mr. Glover, and have had no dealings with his office. But from what others have told us about him, he is a respected and fair attorney. He is entitled to the benefit of doubt about his attitude about the growing hostility in the practice of law. If in the future he is found to be biased against anyone, we will report it.

We look forward to his stewardship of the Bar Counsel’s office, and we hope that he will examine the conduct of the ethics prosecutors he will be supervising. We hope that he will work to make prosecutorial decisions that are based on adult reasoning, and that the fair play he called for in his article will be the hallmark of his tenure.

The Courier-Journal article mentioned that three of the eight lawyers that will be under his management, are females. We expect they will be managed in the same manner as the male lawyers in the Bar Counsel’s office. We would expect that if one of his prosecutors goes “postal” on a case, that they will receive equal review regardless of their gender.

So LawReader didn’t run this story. We wrote Mr. Glover and expressed our thoughts of support to him. He risked his life in an unpopular war and that is something that most of the lawyers in the KBA never did (male or female!).

He was respected enough by his fellow lawyers to be elected President of the Fayette County Bar Association, and he has earned our respect. He has the right to express his opinions.
We applaud the actions of KBA President Myers and the Executive Committee in their decision to hire Glover. They made the right call in hiring Glover.

STATUTORY INTERPRETATION – QUOTE OF THE YEAR BY JUDGE SARA COMBS

Saturday, September 29th, 2012

In a published Court of Appeals case issued Sept. 28, 2012 in City of Bowling Green vs. Helbig, we quote Ct. of Appeals Judge Sara Combs on statutory construction:

“When a statute is as clear as a glass slipper and fits without strain, courts should not approve an interpretation that requires a shoehorn.”

THE LAW FIRM OF STITES AND HARBISON WAS EMPLOYED TO DEFEND THE KBA IN THE LAWSUIT FILED BY JOHN M. BERRY JR. AND THE ACLU. KBA says this was the insurer carrier’s decisions decision

Thursday, September 27th, 2012

In response to LawReader’s request for information regarding this decision, the KBA President, on behalf of the Executive Committee, was kind enough to reply. This is the first time that the KBA has taken the time to respond to questions about this lawsuit from a dues paying member of the Bar. We hope this indicates that the KBA will be more transparent in the future.

The law firm of Stites and Harbison was reported by President Myers to have earned a legal fee in “the low $200,000’s”. We have previously complimented Stites and Harbison for their excellent work, and we have no doubt the fee was earned.

One Board opf Governors member, Douglass Farnsley of Louisville is employed by Stites and Haribson.

This letter explains that the KBA’s liability insurer hired Stites and Harbison, and that Board member Farnsley had no input in his firm’s selection.

We have asked the bar for the identities of the Executive Committee and Board Members who in 2009 approved this expenditure instead of choosing to correct the Inquiry Commissions “unconstitutional” deprivation of Berry’s free speech rights (as found by the Sixth Circuit Court of Appeals.) That information has not yet been provided to LawReader.

This action by the KBA Inquiry Commission against Berry, cost a total of about $400,000. President Myers has said that this was covered by the insurance carrier.

It appears that the KBA places the blame for their decision on the Supreme Court since they adopt the rules which govern attorney discipline procedures.

We still have not heard of an apology to Berry from the KBA. We have not learned of any deductible in the insurance policy, and we have not learned if the KBA’s liability insurance premiums will be raised in the future as a result of this $400,000 loss.

KENTUCKY BAR ASSOCIATION
514 WR~T MAIN S1REET
FRANKFORT, KENTUCKY 40601 -1812
(502) 564-3795
FAX (502) 564-3225
\’Vww.kybar.org

September 27,2012

VIA E-MAIL

From: KBA President W. Douglas Myers and The Executive Committee

TO: Stan Billingsley

I have your letter of September 21, 2012 to John Meyers. I have advised Mr. Meyers not
to engage in research projects for individual members of the Kentucky Bar Association.
I will tell you that the existence of the Kentucky Bar Association Executive Committee is
created in the bylaws of the KBA. The bylaws were adopted by the Bar and approved by the
Kentucky Supreme Court. These bylaws and the Policies adopted by the Board of Governors of
the Kentucky Bar Association (The Policies) create the authority by which the Executive
Committee acts.
In your letter, you also raise several questions concerning the employment of Mark
Overstreet of the law firm of Stites & Harbison for representation in the case of John M. Berry,
Jr. v. Michael J. Schmitt, in his official capacity as Chair of the Kentucky Bar Association Inquiry
Commission. At the time this lawsuit began, the suit was directed to the insurance carrier which
provides coverage for the Kentucky Bar Association Inquiry Commission. This insurance carrier
directed the KBA to employ panel counsel approved by the carrier. The firm listed for defense
of claims of this nature in Kentucky was Stites & Harbison.
The Policies adopted by the Board of Governors require as follows:
Members of the Board, Trustees, Inquiry Commission, CLE
Commission and other KBA commissions and committees, and
employees of the KBA are to be defended, indemnified and held
harmless for any activity that they engage in on official KBA
business, excluding illegal activity in which they have been
engaged.

Thank you for your interest in the Bar Association and its operations.
Sincerely,

W. Douglas Myers
President
WDM/dls
C: John Meyers

ATTORNEY GENERAL CONWAY ANNOUNCES CONVICTIONS IN ATTEMPTED BRIBERY OF PULASKI COUNTY COMMONWEALTH’S ATTORNEY

Thursday, September 27th, 2012

Press Release Date: Wednesday, September 26, 2012

Attorney General Jack Conway and his Office of Special Prosecutions today announced the convictions of two Somerset, Ky. residents in connection with a scheme to bribe Pulaski County Commonwealth’s Attorney Eddy Montgomery.
Forty-six-year-old Dormus “Bubby” Dalton and 45-year-old Virginia “Carol” Hampton both entered guilty pleas today in Pulaski Circuit Court. Dalton pled guilty to one count of complicity to bribery of a public servant, a Class C felony, and a charge of being a persistent felony offender. Hampton entered an “Alford Plea” to one count of facilitation to bribery of a public servant, a misdemeanor. Under an Alford Plea, Hampton maintains her innocence, but admits there is enough evidence for a conviction in the event of a jury trial.
Dalton was sentenced to 10 years in prison, while Hampton received 12 months to serve, probated for a period of two years. Dalton and Hampton are among five Somerset residents charged in connection with the bribery scheme.
“This type of illegal and unscrupulous behavior is not tolerated in the Commonwealth of Kentucky,” General Conway said. “I appreciate the hard work of my Office of Special Prosecutions and the Somerset Police Department in bringing this case to a successful close.”
A Pulaski County grand jury indicted Dalton, Hampton, Nobel Hampton, Walter Creekmore and Everett Hyden in July 2010 for their involvement in the scheme. The five defendants were accused of acting together between May 18 and June 10, 2010 to collect and deliver $20,000 to the Commonwealth’s Attorney as a bribe to secure the release of Carol Hampton’s son, Brandon Compton, a twice-convicted narcotics trafficker.
When Eddy Montgomery, Commonwealth’s Attorney for the 28th Judicial Circuit, was initially approached he immediately notified police and assisted them in a covert investigation.
Sixty-three-year-old Creekmore and 65-year-old Hyden each previously entered guilty pleas to one count of complicity to bribery of a public servant. Nobel Hampton, Carol Hampton’s father, died while the charges against him were pending.
The Somerset Police Department investigated the case and the Attorney General’s Office of Special Prosecutions handled the prosecution as the Commonwealth’s Attorney is a witness in the case.

LAWYER ASSOCIATE POSITION AVAILABLE – NORTHERN KY. LAW FIRM

Wednesday, September 26th, 2012

ASSOCIATE POSITION AVAILABLE:

O’Hara, Ruberg, Taylor, Sloan & Sergent, an established Northern Kentucky Law Firm, is seeking to fill a position of Associate to handle litigation primarily in the areas of insurance defense and employment law. Admission to the Bar in Kentucky and Ohio, as well as one to two years of litigation experience are preferred.

O’Hara, Ruberg, Taylor, Sloan & Sergent is an equal opportunity employer.

Please send resume with a writing sample by November 1, 2012 to jenniferb@ortlaw.com.

Respectfully,

Julie L. Jones

NKBA Executive Director

P: (859) 781-1300, Ext. 104

F: (859) 781-1277

Juliejones.director@nkybar.com

ED MASSEY, NORTHERN KENTUCKY SCHOOL BOARD LAWYER, QUESTIONS MITT ROMNEY ON NATIONAL TV

Tuesday, September 25th, 2012

On Tuesday Sept 25, Ed Massey was given the opportunity to ask Presidential candidate Mitt Romney several questions about his thoughts on the role of school boards in education.
Massey has over l6 years’ experience in working with school boards in Northern Kentucky.

Frankly, we didn’t understand the answers given, but at least one of our own was given a forum and a microphone on an important national issue. Congrats to Ed Massey.

U.S. SUPREME COURT TO HEAR CHALLENGE TO WARRANTLESS TAKING OF DUI SUSPECTS BLOOD

Tuesday, September 25th, 2012

WASHINGTON – BY CHRISTIAN SCIENCE MONITOR SEPT. 24, 2012
The US Supreme Court announced on Tuesday that it will take up a case examining whether police officers need a warrant before administering an involuntary blood test to a suspected drunk driver.
Although the case deals with a relatively routine interaction between police and motorists, the underlying legal issue will help define the scope of Fourth Amendment protections against unreasonable searches involving forced blood tests.

The case, Missouri v. McNeely (11-1425), stems from an October 2010 traffic stop by a Missouri state highway patrol officer near Cape Girardeau.

RECOMMENDED: How much do you know about the US Constitution? A quiz.
The officer pulled Tyler McNeely over at about 2 a.m. for allegedly exceeding the speed limit by 11 miles per hour. During the routine stop, Officer Mark Winder noticed signs that Mr. McNeely might be intoxicated. He asked the driver to step out of the car and take four field sobriety tests. After McNeely performed poorly, the trooper asked the driver to submit to an alcohol breath test.
McNeely refused.
The trooper then transported McNeely to a medical clinic. After the driver refused to submit voluntarily to a blood test, Officer Winder directed a clinic staff member to draw blood without the suspect’s permission.
The test showed McNeely’s blood-alcohol level was well above the legal limit. He was charged with driving while intoxicated.
If convicted, it would be McNeely’s third DWI offense and bring a potential four-year prison term.
Prior to his trial, McNeely’s lawyer filed a motion to suppress the blood sample on grounds that the arresting officer had failed to first obtain a search warrant.
Prosecutors fought the motion, arguing that the officer was justified in ordering the blood-test immediately without a warrant because the longer he waited to perform the test the more the alcohol in the suspect’s system would be metabolized. In effect, any delay would mean the continued destruction of evidence.
Officer Winder also stated later that he had read a recent article that Missouri law was changed to waive the requirement to obtain court-authorization prior to performing a blood test.
The trial judge agreed with McNeely’s lawyer and barred prosecutors from using the blood test results.
A state appeals court reversed. But the Missouri Supreme Court ultimately affirmed the trial judge’s decision that the police were not justified in ordering a blood test without first obtaining a warrant.
The Missouri Supreme Court based its decision on a 1966 US Supreme Court precedent that allowed police under certain exigent circumstances to conduct a warrantless blood test.
In the 1966 case, the officer was dealing with the aftermath of a traffic accident. He had to investigate the accident scene and transport the defendant to the hospital for treatment. Under those “special facts,” the US Supreme Court said there was no time for the officer to contact a judge and obtain a search warrant prior to drawing the necessary blood for the blood-alcohol test.
In the McNeely case, there was no accident and no need to transport anyone to the hospital for emergency treatment. Instead, the question in the McNeely case is whether police officers are justified in ordering a warrantless blood test solely because any delay in performing such a test will result in the body’s natural destruction of the evidence.
State supreme courts have reached divergent decisions on that issue. High courts in Wisconsin,Minnesota, and Oregon have ruled that the rapid dissipation of alcohol in the bloodstream creates a sufficient exigency to justify a blood test without a warrant.
In contrast, the Utah Supreme Court and the Iowa Supreme Court have ruled that additional “special facts” are needed beyond just the natural process of dissipation to justify a warrantless blood test.
The case will likely be set for oral argument in January or February.

Does Kentucky law authorize an ex parte motion by a criminal defendant to vacate or set aside a warrant for his or her arrest with no notice or opportunity for the Commonwealth to be heard?

Tuesday, September 25th, 2012

Judge Jack Shay suggested that criminal defense lawyers would find this recent ruling of the Ky. Supreme Court interesting. For the entire case go to 2011-SC-000157-CL
This was a published decision.

COMMONWEALTH OF KENTUCKY APPELLANT
CERTIFICATION OF LAW FROM
V. JEFFERSON DISTRICT COURT
CASE NO. 11-M-004285
MICHAEL L. WILSON APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
CERTIFYING THE LAW
Pursuant to CR 76.37(1), this Court granted the certification request of
the Jefferson County Attorney to answer the following question of Kentucky
law:
Does Kentucky law authorize an ex parte motion
by a criminal defendant to vacate or set aside a
warrant for his or her arrest with no notice or
opportunity for the Commonwealth to be heard?
The answer is an unequivocal no.
The facts giving rise to this question provide a vehicle for us to
graphically depict the need to put this particular ex parte practice to rest. A
criminal complaint was taken in the Jefferson District Court through the
County Attorney on February 17, 2011. Cynthia Wilson alleged that she had
been the victim of threats from the Appellee, Michael L. Wilson, as well as a

REPORTS SUGGEST FOUR BOARD OF GOVERNORS MEMBERS TARGETED IN BOARD OF GOVERNORS ELECTION.

Tuesday, September 25th, 2012

LawReader has learned of efforts to recruit candidates for the KBA Board of Governors who are up for election this year.

Candidates are being sought to oppose four incumbent Board members. A total of seven seats are up for election this year. The other seven seats will stand for election in 2014.
The comments received by LawReader regarding the four targeted Board of Governors members suggest that these four Board Members have been the leaders in tolerating excessive prosecution of attorneys by the Bar Counsel’s office.

One attorney said “…when they fired Gosnell they didn’t go far enough, and the Bar Counsel’s office hasn’t changed a bit.” Another argued, “The KBA has wasted a small fortune ($400,000) in their attempt to silence the political speech of a respected attorney, and someone must be held accountable! They won’t even tell us why they fired Gosnell.”

The Board of Governors has the authority to hire and fire members of the Bar Counsel’s office. The Board has given no reason for the firing of Linda Gosnell in November of 2011.

The four Board members against whom opponents are being recruited:

#1 Serieta G. Jaggers of Princeton.
#2 Douglass Farnsley of Louisville (He is rumored to be seeking the office of Vice-President and may not run for the Board of Governors. Farnsley is employed by Stites and Harbison. His firm was paid over $200,000 in 2012 for their work as outside counsel for the KBA in their efforts to uphold the Supreme Court Rule which limits truthful but reckless speech of attorneys. We are informed that Farnsley did not participate in the selection of his law firm as outside counsel. That decision was apparently made by the KBA Executive Committee. It is possible that Farnsley was not on the Board when his firm was hired to represent the KBA.
#3 William R. Garmer. of Lexington.
#4 J. Stephen Smith of Covington..

Candidates for the Board of Governors may be nominated by 20 lawyers in good standing from the same Supreme Court District as their nominee, by filing a petition with the KBA no later than Oct. 31, at 5 p.m.

To find the rules regarding nomination of candidates for the KBA Board of Governors go to www.lawreader.com at Kentucky Legal News for the following article which includes a form of a nominating petition, and the address of the Executive Director of the KBA to whom the petition should be submitted. Look for article that is titled: WANT TO NOMINATE SOMEONE FOR THE KBA BOARD OF GOVERNORS? USE THIS FORM?. [Sep 24th, 2012] Read Story –>

COUNTIES BY SUPREME COURT DISTRICT AND NAME OF CURRENT BOARD OF GOVERNORS MEMBER WHO IS UP FOR ELECTION THIS YEAR.

KY. SUPREME COURT DISTRICT 1 Is represented on the KBA Board of Governors by:
Serieta G. Jaggers
Farmer & Wright, PLLC
1206 Marion Rd.
Princeton, KY 42445
(270) 365-1112
(270) 365-2765 fax
Term ends June 30, 2013

Allen County
Ballard County
Butler County
Caldwell County
Calloway County
Carlisle County
Christian County
Crittenden County
Edmonson County
Fulton County
Graves County
Hickman County
Hopkins County
Livingston County
Logan County
Lyon County
Marshall County
McCracken County
McLean County
Muhlenberg County
Simpson County
Todd County
Trigg County
Webster County

SUPREME COURT DISTRICT 2 Is represented on the KBA Board of Governors by:
R. Michael Sullivan
PO Box 727
Owensboro, KY 42302-0727
(270) 926-4000
(270) 683-6694 fax
Term ends June 30, 2013

Barren County
Breckinridge County
Bullitt County
Daviess County
Grayson County
Hancock County
Hardin County
Hart County
Henderson County
Larue County
Meade County
Ohio County
Union County
Warren County

SUPREME COURT DISTRICT 3 Is represented on the KBA Board of Governors by:
Richard Hay
PO Box 1124
Somerset, KY 42502-1124
(606) 679-2214
(606) 678-4696 fax
Term ends June 30, 2013

Adair County
Bell County
Casey County
Clay County
Clinton County
Cumberland County
Estill County
Garrard County
Green County
Jackson County
Knox County
Laurel County
Lee County
Leslie County
Lincoln County
Marion County
McCreary County
Metcalf County
Monroe County
Nelson County
Pulaski County
Rockcastle County
Russell County
Taylor County
Washington County
Wayne County
Whitley County

Supreme Court District 4 Is represented on the KBA Board of Governors by:
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

Jefferson County
SUPREME COURT DISTRICT 5 Is represented on the KBA Board of Governors by:
William R. Garmer
Garmer & Prather PLLC
141 North Broadway
Lexington, KY 40507
(859) 254-9351
(859) 233-9769 fax
Term ends June 30, 2013

Anderson County
Bourbon County
Boyle County
Clark County
Fayette County
Franklin County
Jessamine County
Madison County
Mercer County
Scott County
Woodford County

SUPREME COURT DISTRICT 6 Is represented on the KBA Board of Governors by:
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

Bath County
Boone County
Bracken County
Campbell County
Carroll County
Fleming County
Gallatin County
Grant County
Harrison County
Henry County
Kenton County
Lewis County
Mason County
Nicholas County
Oldham County
Owen County
Pendleton County
Robertson County
Shelby County
Spencer County
Trimble County

SUPREME COURT DISTRICT 7 Is represented on the KBA Board of Governors by:
Earl M. “Mickey” McGuire
4706 KY Rt. 114
Prestonsburg, KY 41653
(606) 886-2201
(606) 886-2201 fax
Term ends June 30, 2013
Boyd County
Breathitt County
Carter County
Elliott County
Floyd County
Greenup County
Harlan County
Johnson County
Knott County
Lawrence County
Letcher County
Magoffin County
Martin County
Menifee County
Montgomery County
Morgan County
Owsley County
Perry County
Pike County
Powell County
Rowan County
Wolfe County

Job Opening for Litigation Attorney in No. Kentucky

Tuesday, September 25th, 2012

Ziegler & Schneider, P.S.C. is seeking an experienced litigation attorney with an existing client base to expand its litigation department. All responses will be kept in strict confidence. Please mail your resume to the attention of: Robert C. Ziegler, 541 Buttermilk Pike, Suite 500, P.O. Box 175710, Covington, KY 41017.

Thanks to the Northern Ky. Bar Association for this posting.

STITES AND HARBISON EMPLOYEE SAID TO BE RUNNING FOR VICE-PRESIDENT OF KBA. THE KBA PAID STITES AND HARBISON OVER $200,000 IN 2012 ALONE. KBA ELECTION FOR VICE-PRESIDENT AND PRESIDENT-ELECT – NOMINEES HAVE UNTIL OCT. 15TH. TO SUBMIT PETITIONS OF NOMINATION

Tuesday, September 25th, 2012

The By-laws of the Kentucky Bar Association provide for an annual election for the offices of President-elect and Vice-president. (See bylaws footnotes below.)
LawReader is advised that current Board of Governors member Douglass C. Farnsley, will be a candidate for Vice-President. Farnsley is employed by the law firm of Stites and Harbison.

In 2012, the KBA President Doug Myers, told the Lexington Herald-Leader that the KBA will pay the law firm of Stites and Harbison a legal fee “in the low $200’000’s” for their legal work in representing the KBA in the Federal Civil Rights lawsuit filed by John M. Berry Jr. and the ACLU against the KBA.

U.S. Federal District Judge Danny Reeves also ordered that the KBA pay attorney fees and court costs in the same case in the amount of $191,000. The total cost of the KBA defense is close to $400,000. KBA President Myers told the media that this legal bill will be paid by the KBA’s insurer.

LawReader sought information from the last KBA President regarding the fees paid by the KBA to outside counsel in the last two years. That same request was made to the current KBA President. Both officers ignored our request for information about how the KBA is spending our dues money to hire outside counsel.

This question is important because the KBA has nine staff attorneys in the Bar Counsel’s office, and apparently none of them are deemed able by the KBA officers to be able to represent the KBA before the Supreme Court or the Federal Courts.
From President Myers statement, it is admitted that Board Member Douglass Farnsley’s law firm was paid in excess of $200,000 in the Berry case alone this year. We don’t know how many other cases were assigned to Stites and Harbison.
The report that Farnsley will now be running for Vice-president, which will make him a member of the Executive Committee…raises the potential for a conflict of interest in future decisions regarding the hiring of outside counsel.
We are advised by sources close to the Board of Governors that the decision to hire Stites and Harbison in the $400,000 Berry/ACLU case was approved by the Executive Committee and was never presented to the full Board of Governors for their approval.
The purpose of the KBA defense in the Berry case was to uphold SCR 3.130 (8.2) which allows the sanctioning of an attorney for making “truthful but reckless” statements. The Sixth Circuit Court of Appeals ruled that this rule was unconstitutionally applied in the Berry case. The Court did not void the rule, it merely said that under the facts of the Berry case the rule was improperly applied.
We have no basis to suggest that Farnsley, while serving as a Board Member, voted to throw $200,000 in business to his law firm. However, as Vice-President he will be a member of the Executive Committee and the potential for a conflict will be much greater since the Executive Committee appears to have the power to take “emergency actions” and then merely inform the Board of the Executive Committee’s decision regarding the hiring of outside counsel.

We would suggest that the loss of $400,000 should result in a full disclosure by the KBA as to how this decision was made, and provide the names of the Executive Committee members who made this decision to infringe on the constitutional free speech rights of attorneys. We still hope that the KBA will open the curtain of secrecy about their expenditure of members dues money, and allow all 17,000 Kentucky lawyers to know what is going on at the KBA.

We have reviewed the briefs submitted by Stites and Harbison and have repeatedly stated that they did an excellent job, and they earned the full fee paid to them by the KBA. The point is that the relationship between Stites and Harbison and Board Members and Officers is troubling. If the KBA chooses to repeatedly hire Stites and Harbison due to their expertise, so be it, but we would request full disclosure for why Stites and Harbison was hired in this case, and possibly hired in other outside counsel cases.

We would hope that any candidate for KBA offices, including the Board of Governors, would publically disclose their commitment to inform the members of the Bar about the business conducted by the KBA. There is no rule which requires the veil of secrecy regarding KBA activities.

Anyone wishing to run for the office of Vice-President or President-Elect must submit a petition with 100 names (10 from each Supreme Court District) only between October 15 and November 15.2012.
The petition should be filed with the Executive Director:

Hon. John D. Meyers,
Executive Director Kentucky Bar Association
514 W. Main Street
Frankfort KY 40601-1812

FOOTNOTES:
KBA By-Laws: Section 6 – Nomination of officers

(a) Nomination to the offices of Vice-President and President-Elect shall be made by written petition as herein provided. All candidates for office shall be members of the Association in good standing.
(b) Nominations for the offices of Vice-President and President-Elect shall be made by written petition signed by not less than one hundred members of the Association in good standing, with not less than ten signatures on the written petition being from each Supreme Court District. Only one candidate may be nominated on a single petition and any number of petitions may be filed for a candidate.
(c) All nominating petitions for the office of Vice-President and President-Elect shall be filed with the Executive Director between October 15 and November 15 in each year. Where only one candidate has been duly nominated for an office that candidate shall be declared elected and the Executive Director shall so certify to the Board and the nominee on or before December 15 in that year.

b) The President-Elect.
The President-Elect shall be nominated and elected as hereinafter provided and shall hold such office until he/she assumes the office of President. The President-Elect shall endeavor to thoroughly familiarize himself/herself with the duties of the President and the work of the Association and of the Board.

(c) The Vice President.
The Vice President shall be nominated and elected as hereinafter provided. The Vice President’s term of office shall commence on July 1 next succeeding his/her election and shall continue for one year. The Vice President shall perform the duties of the President during the absence or disability of the President. If a vacancy shall exist in the office of President, the Vice President shall succeed to that office for the remainder of the term.

(h) Executive Committee.
An Executive Committee of the Board shall consist of the following officers of the Bar: The President, who shall serve as Chair of the Executive Committee, the Immediate Past President, the President-Elect, the Vice-President, Chair of the Young Lawyers Divison, and the Executive Director. The Executive Committee shall advise the President on matters concerning the operations of the Bar and provide a forum for discussion and recommendation to the Board of Governors including matters of long range planning. The Executive Committee may also act on matters of an emergency nature that may affect the Bar.
When the Executive Director becomes aware of any matter that may require Executive Committee action, the Executive Director shall immediately advise the President. The President shall advise the Board of any action taken or any recommendation made by the Executive Committee at the next Board meeting. The Executive Committee shall meet at such times as may be called by the President. 4
HISTORY: Amended eff. 10-14-10; Amended by Order 2005-10, eff. 1-1-06; prior amendments eff. 1-1-97
(Order 96-1), 4-19-85, 12-30-74; approved eff. 11-11-69; amended by Order, eff. 4-19-12

WANT TO NOMINATE SOMEONE FOR THE KBA BOARD OF GOVERNORS? USE THIS FORM….

Monday, September 24th, 2012

Seven members of the Ky. Bar Association are up for election this year. Nominations must be submitted by Oct. 31, 2012. Find more information by logging on to the KBA website.

NOMINATING FORM FOR BOARD OF GOVERNORS
We, the undersigned, being members in good standing of the Ky. Bar Association, and residents of the _____Supreme Court District, do hereby nominate the Hon._____________________________whose address is_____________________________, for election to the office of Board of Governors of the Kentucky Bar Association for the _____Supreme Court District, in the 2012 election.
Name Address
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4
5
6
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9
10
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DELIVER OR MAIL NOMINATING PETITIONS by 5:00 P.M. October 31 TO:
Hon. John D. Meyers, Executive Director
Kentucky Bar Association
514 W. Main Street
Frankfort KY 40601-1812

THOMAS H. GLOVER OF LEXINGTON TO BE NAMED NEW KBA BAR COUNSEL – some Board members upset they were not allowed to meet him.

Monday, September 24th, 2012

LawReader has learned that Thomas H. Glover of Lexington will be named Bar Counsel of the Ky. Bar Association the first week of October. Glover a former President of the Fayette County Bar Association was voted in by a majority of the members of the Board of Governors last week. The Executive Committee recommended him for the post. Several Board members requested a chance to meet Glover in person, but the majority of the Board denied their request, and they approved his hiring without a personal interview him or other possible candidates.

We are advised that five Board members voted against his hiring due mainly to their belief that this appointment should have been preceded by his appearance before the full Board of Governors.
A Board member told LawReader that they voted against his hiring due to the refusal of the majority to allow the full Board to meet with him. The Board member said, “I hear good things about him, but would like to have met him before I voted.” Some members of the l7 member board were not present when Glover was selected, and some voted by phone.

The Bar Counsel is the administrator of the Bar Counsel’s office which handles ethics complaints against attorneys. The Office has an annual budget of $1.7 million dollars, the largest single expenditure of the KBA. The office has nine full time attorney slots, and a total of 24 employees.

The KBA has ignored requests from LawReader for disclosure of how much money has been spent by the KBA in the last two years for outside counsel.

Even with an office staff of nine full time lawyers the Board continues to approve the employment of outside counsel to handle appeals to the Ky. Supreme Court and in the recent federal lawsuit in which the KBA became liable for more than $400,000 for trying to suppress the free speech rights of an attorney. One Board member, Douglas Farnsley of Louisville, is employed by the Stites & Harbison law firm. That firm was recently paid over $200,000 by the KBA to represent the KBA as outside counsel.

KBA President Myers told the press that most of the $400,000 they were required to pay for court costs and attorney fees in the John M. Berry Jr. civil rights case, “was paid by insurance”.
The office of Bar Counsel has been vacate for over 10 months.

The new Bar Counsel will have to jump into an office that is reported to have an investigation underway regarding a past KBA President. (Courier Journal 2008) The Board refuses to disclose the reason that Linda Gosnell was discharged last November.

“KBA President Doug Myers, of Hopkinsville, said Gover was one of about 40 lawyers who were considered and the top recommendation of a search committee who interviewed six candidates.
“He is a decorated Vietnam veteran with a cool, calm demeanor, which is the kind of guy we’re looking for in this position,” Myers said.
Glover, a graduate of Peabody College who attended Vanderbilt University and what is now the University of Memphis, got his law degree from University of Louisville. He served seven years on the Fayette bar’s board of directors and as its president.

42 ATTORNEYS WITHDRAW THEIR MEMBERSHIP IN KBA – There may be many reasons….

Sunday, September 23rd, 2012

42 ATTORNEYS WITHDRAW THEIR MEMBERSHIP IN KBA

The Supreme Court has granted permission to 42 attorneys to withdraw as members of the Kentucky Bar Association from late August 28, 2012 to September 20, 2012. This large number of withdrawals from KBA membership appears to be unusually high. This likely represents the Bar Counsel’s office policies and may suggest active plea bargaining of ethics claims.

Reasons for withdrawal can be explained by attorneys giving up the practice of law in Kentucky, moving to other states, or as a compromise to avoid further legal action by the Office of Bar Counsel.

One factor why so many lawyers are withdrawing from the KBA may be the increase in KBA Dues which were increased in 2012 to $320 (for lawyers with five years or more experience).
On May 8, 2012 the KBA announced that that KBA bar dues were to be raised.

“Effective July 1, 2012, the annual dues to be charged for membership in the KBA will be $310 for those members who have been admitted to the practice of law for five years or more; $220 for those members who have been admitted to the practice of law less than five years; and $150 for members of the judiciary as set forth in an order from the Supreme Court of Kentucky entered April 27.”
The dues increase actually approved by the Supreme Court appears to be less than the amount requested by the KBA. The annual KBA budget, entirely funded by lawyers dues, now exceeds $5 million dollars a year. The largest single expense is $1,700,000 for the Bar Counsel’s office to operate the attorney discipline system.
The new web address for the Kentucky Courts page is: http://courts.ky.gov/

COURT ORDERS PERMITTING MOVANT TO WITHDRAW AS A MEMBER OF THE KENTUCKY BAR ASSOCIATION
ROBERT C. BERRY, JR. V. 2012-SC-000504-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
LA KEISHA WRIGHT BUTLER V. 2012-SC-000505-KB AUGUST 28, 2012
GARY DEAN SWIM V. 2012-SC-000506-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
DAVID SCOTT RICHMOND V. 2012-SC-000507-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
DAVID T. SHERMAN V. 2012-SC-000508-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
BENJAMIN M. SULLIVAN V. 2012-SC-000509-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
ROBERT J. WELCH, JR. V. 2012-SC-000510-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
PAUL THOMAS FARRELL V. 2012-SC-000511-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
DIANE MORRIS V. 2012-SC-000512-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
ANDREA EUMEI YANG V. 2012-SC-000513-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
JOHN LEWIS ANDERSON V. 2012-SC-000514-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28, 2012
FLORENCE JANE PHILLIPS V. 2012-SC-000515-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 28,
JOSEPH BRANDON PIGG V. 2012-SC-000524-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 29, 2012
SUMMER DAWN BISHOP V. 2012-SC-000525-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 29, 2012
MARTIN ELLISON HALL V. 2012-SC-000526-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: AUGUST 29, 2012
JAMES EDWIN MILLIMAN V. 2012-SC-000530-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
VICKI LYNNE CARMICHAEL V. 2012-SC-000531-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
MICHAEL JAY KOPEN V. 2012-SC-000532-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
RHONDA ELAINE CURRY V. 2012-SC-000533-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
ANNA M. WARNOCK V. 2012-SC-000534-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
ELIZABETH IRVINE HOLDREN V. 2012-SC-000535-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
CLAIRE HAVELDA KAUFFMAN V. 2012-SC-000536-KB IN SUPREME
SEPTEMBER 20, 2012 MINUTES RELEASED: 10:00 A.M.
THOMAS R. FRENCH V. 2012-SC-000537-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
CARLOS BENJAMIN SALANGO V. 2012-SC-000538-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
DANIEL HUFF JUNG SATTERFIELD V. 2012-SC-000539-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
ADAM GRANT ANDERSON V. 2012-SC-000540-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
MICHAEL DANEY V. 2012-SC-000541-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
NATASHA MARIE CAVANAUGH V. 2012-SC-000542-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
JANE ELIZABETH BONDURANT V. 2012-SC-000543-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
MARY LATTA LEE V. 2012-SC-000544-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
CORINNE MARIE MCCHESNEY V. 2012-SC-000545-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 7, 2012
BARBARA CAROLYN KLABACHA V. 2012-SC-000546-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 5, 2012 SUPREME COURT OF KENTUCKY SEPTEMBER 20, 2012
DAVID JOSEPH WALKER V. 2012-SC-000547-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 5, 2012
ROBERT GATES BARDIN V. 2012-SC-000548-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 5, 2012
BRUCE DAVID GEHLE V. 2012-SC-000549-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 5, 2012
TRACY SULLIVAN DANIEL V. 2012-SC-000577-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 13, 2012
KATHIE PATRICIA MAUTNER V. 2012-SC-000578-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 13, 2012
LISA KARRAY CRAWFORD V. 2012-SC-000579-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 13, 2012
LOUIS ALBERTO VELASCO V. 2012-SC-000580-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 13, 2012
WALTER K. KIRKPATRICK V. 2012-SC-000581-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 13, 2012
JON ANTHONY PREIKSAT V. 2012-SC-000582-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 13, 2012
DAVID B. RUCKER V. 2012-SC-000583-KB IN SUPREME
KENTUCKY BAR ASSOCIATION COURT ENTERED: SEPTEMBER 13, 2012

Justice Scalia Blew Off A Reuters Reporter’s Genius Question About Health Care

Friday, September 21st, 2012

Abby Rogers | Sep. 19, 2012| Business Insider.com

When Supreme Court Justice Antonin Scalia spoke to a group of law students and reporters Monday night, he made it clear he wouldn’t talk about past cases or anything currently before the court.
But that didn’t stop a Reuters’ reporter from trying to slip in a question about health care.
And we’ve got to say, he took a pretty creative approach.
Scalia vehemently opposed the health care ruling in June, which upheld the mandate that most Americans hold health insurance or pay a penalty.
So Monday night a reporter asked Scalia how he felt about a mandate from 1790 that required mandatory health care for all seamen.
And while the rather cantankerous justice who says he rules based on the text of statutes and not on legislative history first refused to answer the question, he couldn’t keep his mouth shut for long.
Requiring merchants to insure seamen, who often acted as militiamen in the 1700s, is quite different from the current mandate that affects all Americans, according to Scalia.
But, the reporter argued, both the 1790 mandate and the current one place a burden on American citizens.
“Congress imposes a lot of burdens on the citizenry,” Scalia fired back.

Read more: http://www.businessinsider.com/justice-scalia-wont-talk-health-care-2012-9#ixzz279KTDjVD
Congress Passes Socialized Medicine and Mandates Health Insurance -In 1798

The ink was barely dry on the PPACA when the first of many lawsuits to block the mandated health insurance provisions of the law was filed in a Florida District Court.
The pleadings, in part, read -
The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.
State of Florida, et al. vs. HHS
It turns out, the Founding Fathers would beg to disagree.
In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.
And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.
Here’s how it happened.
During the early years of our union, the nation’s leaders realized that foreign trade would be essential to the young country’s ability to create a viable economy. To make it work, they relied on the nation’s private merchant ships – and the sailors that made them go – to be the instruments of this trade.
The problem was that a merchant mariner’s job was a difficult and dangerous undertaking in those days. Sailors were constantly hurting themselves, picking up weird tropical diseases, etc.
The troublesome reductions in manpower caused by back strains, twisted ankles and strange diseases often left a ship’s captain without enough sailors to get underway – a problem both bad for business and a strain on the nation’s economy.

IMPORTANT DECISION REGARDING USE OF EXPERT MEDICAL WITNESS- INTERROGATORY, DISCLOSURE OF EXPERT WITNESS

Thursday, September 20th, 2012

IMPORTANT DECISION REGARDING USE OF EXPERT MEDICAL WITNESS- INTERROGATORY, DISCLOSURE OF EXPERT WITNESS

One of the features of LawReader.com is a weekly synopsis of all Ky. Appellate decisions. On Sept. 20th. the Ky. Supreme Court made several important rulings.

One ruling dealt with interrogatories, discovery vs. testimonial information, etc. Every Med Mal lawyer should read this ruling.

The Keyword teaser by LawReader says:

‘The trial court was in error when it failed to consider the effect of the requirements of CR 26 on the objecting party’s ability to perform under CR 30.02(4)(e), and in its failure to consider the admissibility of the proposed.”expert” testimony as to standard of care. It is obvious that Dr. Johnstone had no direct knowledge of Appellant’s treatment history of the decedent, and thus knew nothing relevant to the facts of this case upon which to base a standard-of-care opinion. In the absence of such a basic foundation to show his competency as an expert witness, not even a Daubert hearing was necessary”

In another ruling the Supreme Court held that a spouse who had only had sex outside the marriage one time, did not forfeit their right to inherit from their spouse, that only having sex one time did not fall within the statute that requires “living in adultery” as a basis to disinherit a wandering spouse.

If you subscribe to LawReader.com, you can weekly review all appellate decisions for that week. The monthly subscription to LawReader (for this and many other features) is only $34.95 a month.

KBA DEPUTY BAR COUNSEL DISSES KY. SUPREME COURT RULING – The Bar Counsel Like the Bourbon Kings “learn nothing, and forget nothing.”

Thursday, September 20th, 2012

KBA DEPUTY BAR COUNSEL DISSES KY. SUPREME COURT RULING – The Bar Counsel Like the Bourbon Kings “learn nothing, and forget nothing.”
Sept. 20, 2012
In a recent argument in an ethics hearing before the KBA Board of Governors, an attorney defending another attorney suggested that the Bar Counsel was excessively prosecuting his client, and that in prior charges the Ky. Supreme Court had rejected the efforts of the Bar Counsel’s office to enhance the period of suspension imposed by the Supreme Court.
The young Deputy Bar Counsel dissed the ruling of the Supreme Court by arguing, that the “Supreme Court spent hardly anytime” on consideration of the Bar Counsel’s motion against reinstatement of the lawyer. The implication of the Deputy Bar Counsel was that the formal ruling of the Ky. Supreme Court need not be respected since they reached their decision “quickly”. This argument presented by a very young Deputy Bar Counsel demonstrates the arrogant attitude of the Bar Counsel’s office towards Kentucky attorneys, and now even to the Supreme Court.
This reasoning of the Deputy Bar Counsel, ignores the fact that several months ago the Supreme Court acted in less than 30 days when they learned that the Bar Counsel was rejecting appeals if the charged attorney did not pay the attorney fees claimed by the Bar Counsel in advance.
One attorney, Stan Chesley, had to pay $88,000 for the right to appeal, the Bar Counsel demanded some $55,000 to be paid by Eric Deters before he could appeal to the Supreme Court…(the bill was for the outside counsel hired by the Board to investigate Deters.) In that case, Deters objected and brought the practice to the attention of the Supreme Court, and the Court took decisive action against this practice of the Bar Counsel’s office. The Supreme Court in about 30 days clearly rejected this tax on the right to appeal.
The Supreme Court originally suspended the attorney for 61 days. The Character and Fitness Committee voted to recommend reinstatement of the lawyer after this 61 day suspension was served. Nevertheless the Bar Counsel opposed the findings of the Supreme Court and the Character and Fitness Committee.
The Bar Counsel appealed the ruling of the Character and Fitness Committee and the Supreme Court, back to the Board of Governors.(?) The Board of Governors ignored the ruling of the Supreme Court and the Character and Fitness Committee, and denied reinstatement of the attorney. That ruling was then required to be appealed to the Supreme Court (for the second time). The Supreme Court almost immediately dismissed the motions of the Bar Counsel’s Office, and following the recommendations of the Character and Fitness Committee, ordered reinstatement of the attorney.
Twice the Supreme Court imposed a 61 day sentence of suspension, and the Court twice rejected the actions of the Bar Counsel’s office in trying to overrule the Supreme Court and extend the suspension to longer period as originally sought by the Bar Counsel’s office. That would alert most attorneys to the fact that the Supreme Court had heard the arguments of the Bar Counsel and had clearly rejected them. TWICE!
The Bar Counsel then pursued prosecution of the same attorney, on additional charges that had lingered without action for years. One charge was ten years old! The Bar Counsels actions in the previous case resulted in the actual period of suspension of the attorney to be some 20 days longer than what the Supreme Court ordered. In the new charge the Bar Counsel refused to grant credit for this 20 days to the new penalty recommendation.
When the prior Bar Counsel, Linda Gosnell was discharged in Nov. of 2011, a press story cited one unnamed source at the KBA as saying Gosnell was discharged for “excessive prosecution”. The KBA has refused to give a formal explanation for Gosnell’s discharge.
This current case seems to demonstrate that the Bar Counsel’s Office is like “the Bourbon Kings, who were said to “learn nothing, and forget nothing!”
Seven members of the Board of Governors are up for election this year. Some of the seven Board members will almost certainly be opposed for re-election. In particular interest is growing in seeking opposition for Board members from Northern Ky., Louisville and Lexington.
LawReader has received requests for info regarding how new candidates for the Board can be nominated. (We posted the answer to this question on Sept. 19, 2010 at Ky. Legal News.) Nominees have until October 31, 2012 to file their petitions to be placed on the ballot for the December Board election.

Deposition Not A “Take Home Examination”

Wednesday, September 19th, 2012

By Todd McMurtry | tmcmurtry@dbllaw.com
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In E.E.O.C. v. Skanska USA Building, Inc., the U.S. District Court for the Western District of Tennessee examined if and when a person can change her deposition testimony through use of an errata sheet. 278 F.R.D. 407 (W.D.Tenn 2012). The facts at issue are simple. Lynn D. Shavelson was Skanska’s Ethics and Compliance Officer. During her deposition she was asked if on August 19 Skanska management was aware that an incident involving throwing urine on another was race related. She answered, “Yes.” Next, the E.E.O.C. asked if Skanska was aware that the incident was race related when its management team went to investigate it. Again, she answered, “Yes.”
Upon conclusion of her deposition, Shavelson reserved her right to review her deposition. After review, she changed the answers to the two questions above from “Yes” to “No.” She then tendered a written explanation for why her oral answers had been wrong. Later upon motions for summary judgment, Skanska’s lawyers argued that Shavelson’s testimony was different than the oral testimony given during her deposition. The E.E.O.C. then moved to have the trial court declare that Shavelson could not change her oral testimony through use of an errata sheet.
Fed.R.Civ.P. 30(e) governs a deponent’s right to review and make changes to a deposition transcript. The Court noted that the Sixth Circuit permits a deponent to correct only typographic and transcription errors. Id. at *410. (Citing Devon Energy Corp. v. Westacott, No. H-09-1689, 2011 WL 1157334, at *4-6 (S.D.Tex. Mar. 24 2011)). Citing to Greenway v. International Paper Co. 144 F.R.D. 322, 325(W.D.La. 1992), the Court quoted:
The rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.
Id. at *411.
In conclusion, the Court held that although Shavelson could not change her oral deposition testimony through use of an errata sheet, she could submit an affidavit that differed from her testimony. That affidavit, however, would be subject to analysis as a sham affidavit.
Todd McMurtry is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

ELECTION FOR BOARD OF GOVERNORS—NOMINEES HAVE UNTIL OCTOBER 31 TO FILE AND DELIVER NOMINATING PETITIONS – see sample nominating form and rules below

Wednesday, September 19th, 2012

ELECTION FOR BOARD OF GOVERNORS—NOMINEES HAVE UNTIL OCTOBER 31 TO FILE AND DELIVER NOMINATING PETITIONS – see sample nominating form below…
Sept. 19, 2012

Seven positions on the KBA Board of Governors will be subject to election this year. Nominees must submit petitions no later than Oct. 31, 2012, signed by at least 20 lawyers in good standing in the same Supreme Court District. The actual election will be in December.

We have provided below a list of the seven Board members who are up for re-election, the rules governing the nomination and election of Board Members, a link to the Supreme Court Districts, and a suggested sample Nomination Petition.

THE SEVEN MEMBERS OF THE KBA BOARD OF GOVERNORS UP FOR ELECTION THIS YEAR ARE:

SERIETA G. JAGGERS
Farmer & Wright, PLLC
1206 Marion Rd.
Princeton, KY 42445
(270) 365-1112
(270) 365-2765 fax
Term ends June 30, 2013

R. MICHAEL SULLIVAN
PO Box 727
Owensboro, KY 42302-0727
(270) 926-4000
(270) 683-6694 fax
Term ends June 30, 2013

RICHARD HAY
PO Box 1124
Somerset, KY 42502-1124
(606) 679-2214
(606) 678-4696 fax
Term ends June 30, 2013

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

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

WILLIAM R. GARMER
Garmer & Prather PLLC
141 North Broadway
Lexington, KY 40507
(859) 254-9351
(859) 233-9769 fax
Term ends June 30, 2013

RULES REGARDING ELECTION OF BOARD OF GOVERNORS
Section 4 The Board of Governors
(a) The “Board” is defined in SCR 3.070 The term of office of each Governor of the Board shall commence on July 1 next following their election and shall be for a period of two years and/or until their successor is elected and qualified.
(b) Any member of the Association in good standing shall be eligible for nomination and election to the Board of Governors from the Supreme Court District in which the member resides.
(c) Nomination of a candidate for the Board shall be by written petition signed by not less than twenty members in good standing who are residents of that Supreme Court District. All nominating petitions shall be received by the Executive Director at the Kentucky Bar Center prior to 5:00 p.m., Eastern Time, of the last regular business day of the month of October. If only one candidate is nominated in a District, he/she shall be declared elected to that office and the Executive Director shall at once so certify to the Board and the candidate. Where two or more candidates are nominated, an election shall be held as provided in Section 9.
(d) Any vacancy on the Board or in the office of President-Elect or Vice President shall be filled by a member eligible for election under Section 4(b) for the remainder of the term by appointment by the President, subject to the written approval of a majority of the Board of Governors.
However, upon a vote of a majority of the Board a special election may be called for filing such vacancy.
(e) The Board shall hold regular meetings at such place and at such time as it may from time to time direct during the months of January, March, May, July, September and November, and immediately preceding the first day of the annual convention of the Association. Special meetings may be called by the President whenever necessary, and shall be called by the President upon the written request of four or more members of the Board. Any of these meetings may be cancelled upon vote of the majority of the Board of Governors.
(f) Eleven members of the Board shall constitute a quorum. Except as otherwise provided in the Rules, the vote of a majority of those present and voting shall be necessary to take action.
HISTORY: Amended eff. 10-14-10; Amended by Order 99-1, eff. 2-3-00, 2-1-00; prior amendment eff. 1-1-97 (Order 96-1); approved eff. 11-11-69; amended by Order, eff. 4-19-12
ELECTION RULES FOR OTHER KBA OFFICERS:
Section 5 Officers
The officers of the Association and of the Board, their duties, tenure, and manner of selection shall be:
(a) The President.
The President shall be the chief executive officer, and preside at all meetings of the Association and of the Board. The President shall be a member of the Board with full power to vote on all matters which it may consider. The President shall perform all duties imposed by the Rules and by these By-Laws. The President’s term of office shall be for
one year and shall commence on July 1 in the second calendar year next succeeding election as President-Elect.
(b) The President-Elect.
The President-Elect shall be nominated and elected as hereinafter provided and shall hold such office until he/she assumes the office of President. The President-Elect shall endeavor to thoroughly familiarize himself/herself with the duties of the President and the work of the Association and of the Board.
(c) The Vice President.
The Vice President shall be nominated and elected as hereinafter provided. The Vice President’s term of office shall commence on July 1 next succeeding his/her election and shall continue for one year. The Vice President shall perform the duties of the President during the absence or disability of the President. If a vacancy shall exist in the office of President, the Vice President shall succeed to that office for the remainder of the term.
(d) Limits on Election
The President, President-Elect and Vice-President shall, during their tenure and for a period of four years thereafter be ineligible to serve as elected members of the Board except the Vice-President may run for and serve as President-Elect.
(e) The Executive Director.
The Executive Director shall be appointed by the Board and shall hold office at its pleasure. The Executive Director shall maintain an office at such place in Kentucky as may be directed by the Board. The Executive Director shall be the custodian of all records of the KBA other than disciplinary records which are maintained by the Disciplinary Clerk or the Inquiry Commission. The Executive Director shall keep a record of the proceedings of the Board; provided, that the Board may order any part of its records expunged. In the absence or disability of the Executive Director, the Board shall appoint an Acting Executive Director. The Board may appoint an assistant or assistants to the Executive Director who shall also perform such other duties as are required by the Board.
Section 9 Elections
(a) Ballots for the offices of President-Elect, Vice-President, members of the Board of Governors for which there will be an election will be prepared by the Executive Director and will be mailed on December 15 with return envelopes as hereinafter provided, to each member of the Association in good standing entitled to vote in that election. Names of candidates shall be listed on the ballots in alphabetical order with each position being voted upon.
(b) The ballot shall be sealed by the member in an unmarked inner return envelope, which, in turn shall be sealed in an outer return envelope containing the words: “Official Ballot-Not to be opened until January 16” and lines for the signature and county address of the attorney casting the ballot.
(c) All ballots must be received not later than January 15 by the Clerk, who shall keep all such ballots in a secure box. Such box shall be opened only at the meeting of the canvassing board which shall count the votes. The canvassing board will be appointed by the Clerk and shall consist of persons chosen by the Clerk in the number sufficient to count the ballots. No member of the Board or employee of the KBA may be placed on the canvassing board. The preference shall be for non-lawyers to serve on the canvassing board. Not later than January 20 the canvassing board shall meet at any such place as may be designated by the Clerk , and count the votes. Each candidate for a position shall be entitled to have present at the meeting of the canvassing board an official observer under a written and signed designation by such candidate. No candidate may be present at the meeting of the canvassing board.
(d) A plurality of all votes cast for each position shall be sufficient to elect. The canvassing board shall make and file with the Clerk a written certification of each election, with a copy thereof to the Executive Director who shall promptly notify each candidate and the Board of the results of the election.
(e) Any candidate who desires a recount must deliver a written request to the Clerk within ten days from the filing of the certification. The Clerk will establish procedures for such recount. If no recount is timely requested, or at the conclusion of the recount, the Clerk shall destroy the ballots.
HISTORY: Amended by Order 2005-10, eff. 1-1-06; prior amendment eff. 1-1-97 (Order 96-1); approved eff. 11-11-69; amended by Order, eff. 4-19-12

HOW TO NOMINATE A CANDIDATE FOR THE BOARD OF GOVERNORS
Nomination of a candidate for the Board shall be by written petition signed by not less than twenty members in good standing who are residents of that Supreme Court District. These nomination petitions must be delivered to the KBA Executive Director not later than 5 P.M. Oct. 31, 2012.

SAMPLE NOMINATING FORM FOR BOARD OF GOVERNORS

We the undersigned, being members in good standing of the Ky. Bar Association, and residents of the _____Supreme Court District, do hereby nominate the Hon.____________________whose addess is_________________
for election to the office of Board of Governors of the Kentucky Bar Association for the _____Supreme Court District.

1. Address:
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DELIVER OR MAIL NOMINATING PETITIONS by 5:00 P.M. October 31 TO:
Hon. John D. Meyers, Executive Director
Kentucky Bar Association
514 W. Main Street
Frankfort KY 40601-1812

Phone: 502-564-3795 ext. 248
jmeyers@kybar.org

To check and see what Supreme Court District your are in Go to:

http://courts.ky.gov/resources/publicationsresources/Publications/P109KYSCCOAJudicialDistrictsMapLETTER_211.pdf

TO NOMINATE A CANDIDATE FOR VICE-PRESIDENT OR PRESIDENT-ELECT YOU MUST SUBMIT A PETITION WITH 100 NAMES AND A MINIMUM OF 10 NAMES FROM EACH SUPREME COURT DISTRICT. THE ONLY WAY YOU CAN NOMINATE A CANDIDATE FOR PRESIDENT IS TO FIRST NOMINATE HIM/HER AS PRESIDENT-ELECT