Archive for December, 2012

Goddard Space Flight Center scientist, S.W. “Bill” Billingsley helped development of Assist Device for Totally Paralyzed (Quadriplegic) Patients

Sunday, December 30th, 2012

Goddard Space Flight Center scientist, S.W. “Bill” Billingsley helped development of Assist Device for Totally Paralyzed (Quadriplegic) Patients.

Dec. 30, 2012

LawReader just ran across this news report from some twenty years ago. The scientist is the older brother of LawReader’s Senior Editor Judge Stan Billingsley.

GLM-33 : D-C Proportional Oven Temperature Controller Investigators at the University of Texas Medical Branch, Galveston, are conducting extensive research in the area of biochemical pol: lastants, The investigative effort requires the use of a constant temperature oven, Conventional A-C control methods, such a silicon controlled rectifiers, create excessive electrical noise, which interferes with other instrumentation being used for the investigation. A d-c powered, proportional controller capable of maintaining a constant temperature from 750 to 225% 0,20c was needed. Power consumption of the oven i s 25 to 35 watts full Soad, at 24 to 28 volts and 1 – 1.5 amps.

Upon accepting the problem, the SwRl BATeam initiated queries to the NASA centers. Mr. S. W. Billingsley, Goddard Space Flight Center, provided a simple, economical solution which would meet the problem originator’s specifications. Schematics of the GSFC design were obtained and the device fabricated as part of the tearn8s application engineering effort.
NASA Oven Temperature Controller SAV-1: Assist Device for Totally
Paralyzed (Quadriplegic) Patients

Psychiatrist Discusses Our Failed Approach to Schizophrenia

Wednesday, December 26th, 2012

December 25, 2012

Our Failed Approach to Schizophrenia

By PAUL STEINBERG

Washington

TOO many pendulums have swung in the wrong directions in the United States. I am not referring only to the bizarre all-or-nothing rhetoric around gun control, but to the swing in mental health care over the past 50 years: too little institutionalizing of teenagers and young adults (particularly men, generally more prone to violence) who have had a recent onset of schizophrenia; too little education about the public health impact of untreated mental illness; too few psychiatrists to talk about and treat severe mental disorders — even though the medications available in the past 15 to 20 years can be remarkably effective.

Instead we have too much concern about privacy, labeling and stereotyping, about the civil liberties of people who have horrifically distorted thinking. In our concern for the rights of people with mental illness, we have come to neglect the rights of ordinary Americans to be safe from the fear of being shot — at home and at schools, in movie theaters, houses of worship and shopping malls.

“Psychosis” — a loss of touch with reality — is an umbrella term, not unlike “fever.” As with fevers, there are many causes, from drugs and alcohol to head injuries and dementias. The most common source of severe psychosis in young adults is schizophrenia, a badly named disorder that, in the original Greek, means “split mind.” In fact, schizophrenia has nothing to do with multiple personality, a disorder that is usually caused by major repeated traumas in childhood. Schizophrenia is a physiological disorder caused by changes in the prefrontal cortex, an area of the brain that is essential for language, abstract thinking and appropriate social behavior. This highly evolved brain area is weakened by stress, as often occurs in adolescence.

Psychiatrists and neurobiologists have observed biochemical changes and alterations in brain connections in patients with schizophrenia. For example, miscommunications between the prefrontal cortex and the language area in the temporal cortex may result in auditory hallucinations, as well as disorganized thoughts. When the voices become commands, all bets are off. The commands might insist, for example, that a person jump out of a window, even if he has no intention of dying, or grab a set of guns and kill people, without any sense that he is wreaking havoc. Additional symptoms include other distorted thinking, like the notion that something — even a spaceship, or a comic book character — is controlling one’s thoughts and actions.

Schizophrenia generally rears its head between the ages of 15 and 24, with a slightly later age for females. Early signs may include being a quirky loner — often mistaken for Asperger’s syndrome — but acute signs and symptoms do not appear until adolescence or young adulthood.

People with schizophrenia are unaware of how strange their thinking is and do not seek out treatment. At Virginia Tech, where Seung-Hui Cho killed 32 people in a rampage shooting in 2007, professors knew something was terribly wrong, but he was not hospitalized for long enough to get well. The parents and community-college classmates of Jared L. Loughner, who killed 6 people and shot and injured 13 others (including a member of Congress) in 2011, did not know where to turn. We may never know with certainty what demons tormented Adam Lanza, who slaughtered 26 people at an elementary school in Newtown, Conn., on Dec. 14, though his acts strongly suggest undiagnosed schizophrenia.

I write this despite the so-called Goldwater Rule, an ethical standard the American Psychiatric Association adopted in the 1970s that directs psychiatrists not to comment on someone’s mental state if they have not examined him and gotten permission to discuss his case. It has had a chilling effect. After mass murders, our airwaves are filled with unfounded speculations about video games, our culture of hedonism and our loss of religious faith, while psychiatrists, the ones who know the most about severe mental illness, are largely marginalized.

Severely ill people like Mr. Lanza fall through the cracks, in part because school counselors are more familiar with anxiety and depression than with psychosis. Hospitalizations for acute onset of schizophrenia have been shortened to the point of absurdity. Insurance companies and families try to get patients out of hospitals as quickly as possible because of the prohibitively high cost of care.

As documented by writers like the law professor Elyn R. Saks, author of the memoir “The Center Cannot Hold: My Journey Through Madness,” medication and treatment work. The vast majority of people with schizophrenia, treated or untreated, are not violent, though they are more likely than others to commit violent crimes. When treated with medication after a rampage, many perpetrators who have shown signs of schizophrenia — including John Lennon’s killer and Ronald Reagan’s would-be assassin — have recognized the heinousness of their actions and expressed deep remorse.

It takes a village to stop a rampage. We need reasonable controls on semiautomatic weapons; criminal penalties for those who sell weapons to people with clear signs of psychosis; greater insurance coverage and capacity at private and public hospitals for lengthier care for patients with schizophrenia; intense public education about how to deal with schizophrenia; greater willingness to seek involuntary commitment of those who pose a threat to themselves or others; and greater incentives for psychiatrists (and other mental health professionals) to treat the disorder, rather than less dangerous conditions.

Too many people with acute schizophrenia have gone untreated. There have been too many Glocks, too many kids and adults cut down in their prime. Enough already.

Paul Steinberg is a psychiatrist in private practice.

History of the Second Amendment

Sunday, December 23rd, 2012

History of the Second Amendment-

By Gwen Billingsley

The version of the 2nd. Amendment as ratified by the States and authenticated by Thomas Jefferson, Secretary of State:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The phrase “a well regulated milita”…is read by some to limit the individuals rights but other court decisions just ignore the first clause.

We quote Wikipedia for the following background of the 2nd. Amendment.

Influence of the English Bill of Rights of 1689

Main article: Bill of Rights 1689

The right to have arms in English history is believed to have been regarded as a long-established natural right in English law, auxiliary to the natural and legally defensible rights to life.[9] The English Bill of Rights emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm its subjects, after James II had attempted to disarm many Protestants, and had argued with Parliament over his desire to maintain a standing (or permanent) army.[10] The bill states that it is acting to restore “ancient rights” trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[11] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and that it was a right not to be disarmed by the crown and was not the granting of a new right to have arms.[12]

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[13] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[14] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[13]

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[15][16]
The English Bill of Rights includes the proviso that arms must be as “allowed by law.” This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it was written to preserve the hunting rights of the landed aristocracy and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[17] There is some difference of opinion as to how revolutionary the events of 1688-89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic].”[18] Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[19] In 1765, William Blackstone wrote the Commentaries on the Laws of Englanddescribing the right to have arms in England during the 18th century as a natural right of the subject that was “also declared” in the English Bill of Rights.[20][21]

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[22]

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court recently decided). Some in the U.S. have preferred the “rights” argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[23] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[24]

Experience in America prior to the U.S. Constitution
Ideals that helped to inspire the Second Amendment in part are symbolized by the minutemen
In no particular order, early American settlers viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes:
• deterring tyrannical government;
• repelling invasion;
• suppressing insurrection;
• facilitating a natural right of self-defense;
• participating in law enforcement;
• enabling the people to organize a militia system.

Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, “the people have a right to bear arms for the defence of themselves and the state”.[35]

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, which included a number who were loyal to British imperial rule. As defiance and opposition to the British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, these Patriots established independent colonial legislatures to create their own militias that excluded the Loyalists and then sought out to stock up independent armories for their militias. In response to this arms build up, the British Parliament established an embargo on firearms, parts and ammunition on the American colonies.[36]

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone’s summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[37] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[37] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[38]

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[37]

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist Militia and Hessianmercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[39] They considered it to be bad that there was no effective federal military crackdown to an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[40] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[41][42] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[43]

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison “did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions.”[44] In contrast, historian Jack Rakove suggests that Madison’s intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[45]

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when “the sanctions of society and laws are found insufficient to restrain the violence of oppression”.[46] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[47] as Alexander Hamilton explained in 1788:

[I]f circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.[47][48]

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[49][50] Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to…institute new Government”) and the New Hampshire Constitution (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[51]

There was an ongoing debate in the 1780s about “the people” fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of “the people” (as described by the Federalists) related to the ongoing revolution in France.[52] A widespread fear, during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[53] or prohibiting citizens from arming themselves.[37] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article 1, Section 8 of the US Constitution, the individual right to arm was retained and strengthened by the Militia Act of 1792 and the similar act of 1795.[54][55]

Nick C. Thompson Provides Advice on Foreclosure and Bankruptcy –Beware Tax changes Jan. 1, 2013

Saturday, December 22nd, 2012

By Nick C. Thompson

I am writing this because at some time you emailed our office and I wanted to take a moment to explain a huge change in the tax law that will happen after 12-30-2012. The Mortgage Forgiveness Debt Relief and Debt Cancellation Act will expire on that date.People that have a foreclosure deficiency or mortgage modification after December 30th will be hit with a tax debt.

The IRS on its website specifically outlines how this also applies to anyone that has a credit card charged off, or car repossession. If there is any unpaid debt charged off, the lender will issue a 1099-C for the individual just as if you worked for the bank and had the unpaid debt as income. As an example if you owed 300,000 for your home and the home sold for 100,000 and the unpaid deficiency is 200,000 there would be about a 40% tax or $80,000 plus any interest and penalties. After 2012 any foreclosure deficiency or mortgage modification will generate this income tax assessment.

If a person can’t pay a mortgage there is probably no way to repay such a debt, However the IRS can seize bank accounts and garnish wages without going to court first and with very little warning. About the only practical way to guarantee avoiding this tax is to file bankruptcy before the home sells. Filing bankruptcy first insures there is no legal responsibility when the debt is charged off. There are three other methods to avoid liability including proof of insolvency, a non-recourse loan or certain farm debts. But qualifying for any of those exclusions is difficult or impossible.

We have been advised that the IRS has dramatically increased its enforcement and audit division to handle the increase in taxes from this change. If you want more information on this you can visit the IRS webpage on Mortgage Forgiveness Debt Relief Act and Debt Cancellation or visit our website or our webpage on how to bankrupt income taxes. We want to make sure our clients don’t get caught with this tax debt.

Nick C Thompson

800 Stone Creek Parkway Suite 6

Louisville KY 40223

www.Bankruptcy-Divorce.com

BOARD OF GOVERNORS MEMBER MICKEY MCQUIRE ANSWERS LAWREADER QUESTIONAIRE

Friday, December 21st, 2012

ANSWERS TO QUESTIONNAIRE by BOARD MEMBER MICKEY MCQUIRE

1. I was a member of the Board of Governors during the Berry litigation.

1.a. I cannot personally speak for anybody else, but I believe that free speech
should not be limited by the Kentucky Bar Association.

2. I really have no knowledge of what any KBA President did or did not do or
what large law firm is referred to, but I am in favor of public disclosures of
all KBA expenditures. I know of no reason for secrecy.

3.a. I cannot speak for anybody else, but I think that would be a good idea except in some cases. There are cases where there is pending litigation or
criminal cases that need to be over before an ethics investigation can be
completed. I think in those situations there is reason that a case should
be held in abeyance until after the courts have finished with their work.

b. This is the first I have heard of that proposal, but it sounds initially like a
good idea. I think it should be followed up on. There is presently no
limitation at this time, and it’s easy to see why memories and records would
not necessarily be available on an 8- or 9-year-old matter dealing with a
small amount.

I would like to hear all sides, but on first blush your proposal of a 5-year-old
limitation on matters under $5,000 sounds reasonable to me. I do not speak
for anybody else.

c. I believe there needs to be reasonable supervision of Bar Counsel. I am
not for sure how Bar Counsel can be supervised under our present system where OBC handles so many duties of which we are not privileged to
at the Board of Governors. Secrecy rules were originally put in place to protect attorneys from unnecessary public criticism by frivolous complaints.
However, sometimes the same secrecy rules limit us from having
sufficient knowledge to properly oversee the activity of Bar Counsel.

The rules seem inconsistent in that the Board of Governors hire Bar Counsel
but are limited as to the knowledge of what Bar Counsel does, what decisions are made or the ability to question those decisions.

I have personally heard complaints from attorneys in the 7th Supreme Court District that after a complaint is filed against them and they have filed an answer, sometimes more than a year goes by before anything happens. I have spoken to the newly appointed member of the Inquiry Commission, John Porter, who replaced Mike Schmidt, and asked him if the Inquiry Commission could inquire about complaints that have been made which have not been brought to the Inquiry Commission that are more than six months old. More work needs to be done in this area with respect to maintaining the integrity of the system, the secrecy contemplated to protect an attorney’s privacy and the duty to supervise and evaluate the work of Bar Counsel.

d. I believe there should be some change in the rule. I am sure other people may have better ideas than me, but I would propose that if Bar Counsel had a reason for denying reinstatement, such as having not complied with the terms of suspension, they be able to file a motion with the Board of Governors to continue the suspension that would expire if not voted to approve by the Board of Governors at the next regularly scheduled meeting.

There may be better ideas than this, but perhaps this is a starting point.

e. No, and I am unaware they have.

f. I think an annual administrative review would be an excellent idea. No one
should have unlimited power that is unsupervised and concealed from any oversite. An annual review as sanctioned by the Supreme Court would be excellent.

g. I have heard no discussion on this point, but I would not oppose such a change in the rule. I would imagine the Supreme Court Clerk may not want
these duties, but since they appoint the Trial Commissioners maybe in fact it would be a good idea.

h. I understand that is the rule.

i. Yes.

j. I could certainly understand a party’s need for privacy, but I have no problem with allowing any prosecutor to ask for records of disbursements and I believe they have that subpoena power already.

k. I believe that administrative actions of the KBA would require the same confidentiality as administrative actions of the Administrative Office of the
Courts.

l. I don’t see that it makes much difference because recordings are made and
are supposed to be available, as in a court of law we are not normally
allowed to make our own recordings.

m. As long as an official recording is made and available on request, I think that is satisfactory. I do believe the press, when present, should be allowed to record so their report is accurate.

n. We make very hard decisions and I can understand some people may not want their votes disclosed. I believe our work is very hard and difficult, but
I am also aware that the Supreme Court of Kentucky makes hard decisions
and they put their name on them. Therefore, I would have no
objections to the public having access of how I voted. I cannot speak for
other people.

o. The KBA President is elected by all members of the Kentucky Bar Association. The process is you run for Vice-President, move into
President-Elect, and then become President. The chairs allow a time to
acclimate and prepare for the job. I like the idea that we have a President-
Elect that has a whole year to prepare himself. The President-Elect is
in fact elected by all the members of the Kentucky Bar Association. I
would encourage more people to become involved and knowledgeable
of their vote for President-Elect, Vice-President, and for members of the Board of Governors from each Supreme Court District.

Additional Comments

When campaigning to be elected to the Board of Governors, I have found that many attorneys have great distrust of our association. I believe the distrust is somewhat our own fault and that more public disclosure, transparency and openness would not harm the association. In the two years I have served on the board, I am impressed with the hard work the board members put in reading volumes and volumes of material to prepare for meetings. I have personally seen board members literally spend days of their own time researching, preparing and analyzing transcripts so that matters can be fully discussed. While there are many rules that I would like to see changed, modified or improved, I am proud to say the Board of Governors as a group takes their work very seriously and decides each case on the merits, as is clearly evidenced by decisions we have made finding respondents both guilty and not guilty of numerous and complex charges. I believe each member takes their votes very seriously.

In addition I would like to add that I am not prejudging any issue and would always be open to viewing other ideas or facts that may affect my opinion.

Thank you for an opportunity to provide information.

Sincerely,

Earl M. McGuire
Attorney at Law

EMM/cb

PROPOSED QUESTIONAIRE FOR NOMINEES OF BOARD OF GOVERNORS

The following questionnaire will be submitted to all candidates for election as members of the Board of Governors in the December 2012 Board of Governors election. The answers will be published on LawReader.com. not later than December 20th. We invite any comments of one page or less, which you wish to be published on LawReader concerning your candidacy.

If you choose not to respond to this questionnaire, that is your right. However we will point out to our readers in the legal profession that you apparently side with the current Board Members who have a history of refusing to provide access to public records, and refusing to reveal how much the KBA spends on hiring outside counsel when they have nine full time lawyers on their staff.

1) Were you a member of the Board of Governors when the Board authorized the hiring of outside counsel to defend the KBA against the Federal Civil Rights action seeking a ruling that SCR 3.130 (8.2), (which limits the free speech of attorneys), was unconstitutional, and which cost the KBA approximately $400,000 in legal fees and court costs?
Yes____ No_____

1.a. In the Senator John M. Berry /ACLU case, in which he the Bar Counsel investigated Berry for having written a letter to the Legislative Ethics Commission critical of how they conducted a hearing involving Sen. David Williams. I would have voted to repeal the rule in SCR 3.130 (8.2) which limits the free speech of attorneys.
Yes___ No____

2) The last two KBA Presidents have declined to comply with requests for disclosure of the expenditures made by the Board of Governors to hire outside counsel in the last two years. One large law firm, has a member on the KBA Board of Governors, has done quite well in receiving large fees from the KBA Board. Are you in favor of full public disclosure of all KBA expenditures?
Yes___ No____

3) Would you support a change in the Supreme Court Rules which would:
a. Require that all ethics investigations and prosecutions be completed within one year consistent with the Speedy Trial rule in criminal prosecutions.
Yes ____ No____

b. Adopt a statute of limitations against the Bar Counsel bringing any ethics prosecution more than five years old, if it did not involve a felony offense, or financial loss to the client in excess of $5000.
Yes ____ No____

c. Would you repeal the SCR rule which allows the Bar Counsel to secretly dismiss any ethics complaint without having to report the dismissal to the Inquiry Commission, The Board, or the Supreme Court.
Yes ____ No____

d. Would you support repeal of the SCR rule which currently allows the Bar Counsel to deny reinstatement of any attorney who has served their sanction of suspension imposed by the Supreme Court. Would you support a reform taking away from the prosecutor the power to increase the sanction by merely writing a letter. The Bar Counsel currently can overrule the sentence of the Supreme Court and delay reinstatement by merely writing a letter to the Character and Fitness Committee.
Yes ____ No____

e. Do you believe that KBA officials when charged with ethics offenses, should receive special treatment denied to lawyers.
Yes ____ No____

f. Would you favor adoption of a Supreme Court Rule which would require the Board of Governors and the Supreme Court to conduct annual administrative review of the Bar Counsel’s Office, regarding conflicts of interest, reasons for excessive delays, reasons for dismissal of all complaints, review claims of excessive prosecution, review workloads, and investigate other administrative issues related to the Bar Counsel’s office?
Yes ____ No____

g. Would you favor adoption of a SCR which would allow the Supreme Court Clerk to assume the duties of the Disciplinary Clerk to select Trial Commissioners completely at random from the list of nominees submitted by the Supreme Court, and without ex parte communication with the Bar Counsel’s office or Board Members?
Yes ____ No____

h. Would you favor adoption of a SCR which would make it an ethical violation for any Board member, member of the Bar Counsel’s Office, Inquiry Commission, or Trial Commissioner to fail to remove themselves from a pending ethics prosecution, when they, or a member of their family, or law firm would financially benefit from the outcome of any ethics prosecution?
Yes ____ No____

i. Would you favor adoption of a SCR which would mandate that all plea bargains made by the Bar Counsel’s office are contracts, which must be honored by the Bar Counsel’s office?
Yes ____ No____

j. Would you favor the adoption of a SCR rule which would allow the U.S. Attorney, the County Attorney and the Commonwealth Attorney, to demand an Accounting and publication of all disbursements of funds to clients and lawyers, paid out in class action civil cases?
Yes ____ No____

k. Do you believe that the SCR rule which requires confidentiality of ethics investigations and prosecutions, applies to administrative actions of the KBA, not directly related to a pending ethics investigation or prosecution?
Yes ____ No____

l. Would you favor a rule allowing defendant attorneys appearing before the Trial Commissioner and the Board of Governors to make a recording of their hearing?
Yes ____ No____

n. Would you favor a rule which would require all ethics rulings and orders by the Board of Governors to be accessible to the public? This record would show votes of Board of Governors members on all formal actions.
Yes ____ No____

o. Would you favor a rules change that would allow election of the KBA President directly by all members of the Kentucky Bar Association.
Yes ____ No____

QUESTIONARIE BY LAWREADER:

SCOKY Amends Several Civil Rules, Including CR 45 Governing Subpoenas; Advance Notice of Subpoena to Other Parties and to Person Affected Now Required (Other than for Trial); Appendix of Forms Deleted

Friday, December 21st, 2012

SCOKY Amends Several Civil Rules, Including CR 45 Governing Subpoenas; Advance Notice of Subpoena to Other Parties and to Person Affected Now Required (Other than for Trial); Appendix of Forms Deleted
By David Kramer | dkramer@dbllaw.com

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The Kentucky Supreme Court issued an Order in October (Order 2012-10) amending several of the Kentucky Rules of Civil Procedure, most notably including CR 45, which governs civil subpoenas. The amendments become effective January 1, 2013.

Amendments to CR 45.01(1) and (2) clarify that subpoenas may now be issued solely for document production without deposition testimony from the person who is producing documents and without obtaining a court order permitting production without testimony. The prior Rules were ambiguous on that point. The amendments also deleted the last sentence of CR 45.01(1) regarding service of subpoenas, since it overlapped with CR 45.03(3).

In addition, an amendment to CR 45.03(3) will now require that prior notice of the forthcoming issuance of a subpoena for deposition testimony and/or document production, but not for attendance at trial, must be served on every other party and each person whose information is being requested. The Rule does not specify any particular amount of time that must elapse between the notice of service and service itself. The prior Rule merely required service of the subpoena on other parties and on the person whose information is being requested in the manner prescribed by CR 5.02, but did not require such service in advance of service of the subpoena.

An amendment to CR 52.01 clarified that a court is to render findings of fact and conclusions of law in granting or denying a permanent injunction. The Rule previously mentioned only rulings on requests for temporary injunctions as necessitating issuance of findings of fact and conclusions of law.

Finally, the Court deleted (i.e., abolished) CR 84 and the Appendix of Forms that was attached to the Civil Rules. The deletion of the Appendix to the Civil Rules did not affect the list of official forms published by the Kentucky
Administrative Office of the Courts, which is available at this link: http://courts.ky.gov/resources/legalforms/Pages/legalformlibrary.aspx.

NOTE: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2013 (pending) Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

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

Subscribe to the DBL Civil Litigation blog.

Nicholas M Nighswander Wishes A Merry Christmas to all

Friday, December 21st, 2012

Wishing Everyone a Merry Christmas and a Blessed and Happy New Year!

This letter is a thank you to all my friends, family and clients who receive it and comment to me on the various legal topics addressed in it. It is also a chance for me to address various matters that may help others.

The Holiday Season offers all of us an opportunity to reflect over events in our lives that have occurred this past year. Most recently, the tragedy in Connecticut has brought home how precious the gift of life is for all we hold dear.

The message that we try to hold on to at such times is that the love of Jesus Christ who was born in a stable in such humble surroundings lived and died to save us. Luke Chapter 2 and John Chapter 3, verse 16. Such faith and belief has helped sustain me in my life. I pray it can do the same for us and those families in Connecticut who are enduring the ultimate test of a loss of a child or loved one.

As an Attorney, I have had to represent persons with mental problems. Such persons do not act rationally as you would think someone should act. Factually and literally, such a person is living in a different world. Being able to recognize such a troubled person and then getting them treatment as soon as possible, has been a challenge for friends, families and the legal system for some time.

Hopefully, as we move forward as a society, the future will result in better opportunities for such treatment and help prevent other such terrible events. We can all play a part in our own way by self-education in the recognition of mental health problems; we can contact our local, state and congressional representatives on the issues for better laws and treatment options; and we can support those that take appropriate action to try and end such terrible events for us all.

We all enjoyed many blessings this year. Sometimes it is hard to recognize them. For me, some of my blessings have been watching my youngest son play soccer; my oldest son finishing graduate school and coming home for further life adventures; the marriages of two nephews; helping others with their legal problems; watching Morehead State University win a homecoming football game; friendships; my church and the love of family and my wife.

As we gather with friends and family over the coming days, please remember the birth and love of Jesus Christ endures us forever and will carry us through even in such trying times.

From me and my family, May the Joy and Peace of the Christmas Season Be Yours and Have a Merry Christmas and a Blessed and Happy New Year!

This letter does not include a recent Court Opinion:

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.

HON. ANN OLDFATHER, CANDIDATE FOR THE KBA BOARD OF GOVERNORS RESPONDS BOLDLY TO LAWREADER’s QUESTIONNAIRE – HON. AMY CUBBAGE REFUSES TO ANSWER … THEREBY ADVOCATING MORE SECRECY OF KBA CONDUCT

Tuesday, December 18th, 2012

HON. ANN OLDFATHER, CANDIDATE FOR THE KBA BOARD OF GOVERNORS RESPONDS BOLDLY TO LAWREADER’s QUESTIONNAIRE – HON. AMY CUBBAGE REFUSES TO ANSWER … THEREBY ADVOCATING MORE SECRECY OF KBA CONDUCT.

By LawReader Editor Stan Billingsley – Dec. 18, 2012

The two candidates for the KBA Board of Governors from Jefferson County have responded to the LawReader questionnaire regarding issues that may come before them as KBA Board Members.
The two candidates from Jefferson County are Ann Oldfather and Amy D. Cubbage.

Ms. Oldfield answered the questionnaire and explained her answers or non-answers with commentary. You learn that Ms. Oldfield is not afraid of transparency in the actions of the KBA Board. She is in favor of the KBA releasing information about the KBA’s finances. She seeks debate on some issues, but does not appear to be intimidated by the KBA leaders.
We are sorry to report that Ms. Amy Cubbage did not answer the questionnaire. She sent a letter which says that:

“One of the Board’s responsibilities is to sit in judgment on attorney disciplinary cases under SCR 3.370. Thus, I am sure you understand why I cannot comment on the issues raised in the questionnaire submitted to me.”

(LawReader Note: Ms. Cubbage, …sorry but we do not understand why you are hiding behind that old excuse of “confidentiality..)

LawReader believes the job of the Board of Governors is much broader than sitting on discipline cases. There are many administrative functions of the Board and these are ignored by Ms. Cubbage.
Ms. Cubbage excuse for not answering our questions indicates a lack of grasp of the duties of the Board of Governors. Or perhaps it shows her devotion to the practice of current members of the Board who hide their actions behind claims of “confidentiality”. If Ms. Cubbage won’t answer any question before the election, it is doubtful that she will answer any questions after her election.
We appreciate the responses of both candidates, and provide their responses below.

First we submit the response by Ann B. Oldfather.
QUESTIONAIRE
LAWREADER SUBMITS QUESTIONAIRE FOR NOMINEES FOR THE KBA BOARD OF GOVERNORS – DEC. 8. 2012
The following questionnaire will be submitted to all candidates for election as members of the Board of Governors in the December 2012 Board of Governors election. The answers will be published on LawReader.com. not later than December 20th. We invite any comments of one page or less, which you wish to be published on LawReader concerning your candidacy.
If you choose not to respond to this questionnaire, that is your right. However we will point out to our readers in the legal profession that you apparently side with the current Board Members who have a history of refusing to provide access to public records, and refusing to reveal how much the KBA spends on hiring outside counsel when they have nine full time lawyers on their staff.

1) Were you a member of the Board of Governors when the Board authorized the hiring of outside counsel to defend the KBA against the Federal Civil Rights action seeking a ruling that SCR 3.130 (8.2), (which limits the free speech of attorneys), was unconstitutional, and which cost the KBA approximately $400,000 in legal fees and court costs?
Yes____ No___X__

1.a. In the Senator John M. Berry /ACLU case, in which he the Bar Counsel investigated Berry for having written a letter to the Legislative Ethics Commission critical of how they conducted a hearing involving Sen. David Williams. I would have voted to repeal the rule in SCR 3.130 (8.2) which limits the free speech of attorneys.
Answer: I would like to hear debate on this issue as the question is stated, it doesn’t present a prima facie case against Berry. Rule 8.2 prohibits known false hoods and reckless disregard for the truth, a high bar and a seemingly important ethical obligation for an attorney on any matter.

Yes___ No____

2) The last two KBA Presidents have declined to comply with requests for disclosure of the expenditures made by the Board of Governors to hire outside counsel in the last two years. One large law firm, has a member on the KBA Board of Governors, has done quite well in receiving large fees from the KBA Board. Are you in favor of full public disclosure of all KBA expenditures?
Yes__X_ No____
3) Would you support a change in the Supreme Court Rules which would:
a. Require that all ethics investigations and prosecutions be completed within one year consistent with the Speedy Trial rule in criminal prosecutions.
Yes _X___ No____
b. Adopt a statute of limitations against the Bar Counsel bringing any ethics prosecution more than five years old, if it did not involve a felony offense, or financial loss to the client in excess of $5000.
Yes ____ No____ Answer: I don’t understand the question. I do , however question the notion that Bar Counsel should prosecute any claims of misconduct minor as alleged if it is filed 5 years after the fact.
c. Would you repeal the SCR rule which allows the Bar Counsel to secretly dismiss any ethics complaint without having to report the dismissal to the Inquiry Commission, The Board, or the Supreme Court.
Yes __X__ No____
d. Would you support repeal of the SCR rule which currently allows the Bar Counsel to deny reinstatement of any attorney who has served their sanction of suspension imposed by the Supreme Court. Would you support a reform taking away from the prosecutor the power to increase the sanction by merely writing a letter. The Bar Counsel currently can overrule the sentence of the Supreme Court and delay reinstatement by merely writing a letter to the Character and Fitness Committee.
Yes _ X__ No____
e. Do you believe that KBA officials when charged with ethics offenses, should receive special treatment denied to lawyers.
Yes ____ No_ X__
f. Would you favor adoption of a Supreme Court Rule which would require the Board of Governors and the Supreme Court to conduct annual administrative review of the Bar Counsel’s Office, regarding conflicts of interest, reasons for excessive delays, reasons for dismissal of all complaints, review claims of excessive prosecution, review workloads, and investigate other administrative issues related to the Bar Counsel’s office?
Yes _ X__ No____
g. Would you favor adoption of a SCR which would allow the Supreme Court Clerk to assume the duties of the Disciplinary Clerk to select Trial Commissioners completely at random from the list of nominees submitted by the Supreme Court, and without ex parte communication with the Bar Counsel’s office or Board Members?
Yes __ X__ No____ Additional answer: But other options may exist, too. The goals are worthy and appropriate.
h. Would you favor adoption of a SCR which would make it an ethical violation for any Board member, member of the Bar Counsel’s Office, Inquiry Commission, or Trial Commissioner to fail to remove themselves from a pending ethics prosecution, when they, or a member of their family, or law firm would financially benefit from the outcome of any ethics prosecution?
Yes __ X__ No____
i. Would you favor adoption of a SCR which would mandate that all plea bargains made by the Bar Counsel’s office are contracts, which must be honored by the Bar Counsel’s office?
Yes ____ No____ Answer: Need more information, and to hear debate. I am not confortable that I fully understand the issues.
(LawReader comment: Question “i” above, relates to a case where the KBA made a plea bargain with an attorney on any ethics complaint, and subsequently asked for a greater penalty then they had promised the attorney for his pleas.)
j. Would you favor the adoption of a SCR rule which would allow the U.S. Attorney, the County Attorney and the Commonwealth Attorney, to demand an Accounting and publication of all disbursements of funds to clients and lawyers, paid out in class action civil cases?
Yes ____ No____ Answer: See answer to i. Professionally I can see significant problems with this but the Gallion, Chesley/et al tale is a cautionary one that raises issues of real concern that need addressing.
k. Do you believe that the SCR rule which requires confidentiality of ethics investigations and prosecutions, applies to administrative actions of the KBA, not directly related to a pending ethics investigation or prosecution?
Yes ____ No__ X__
l. Would you favor a rule allowing defendant attorneys appearing before the Trial Commissioner and the Board of Governors to make a recording of their hearing?
Yes __ X__ No____
n. Would you favor a rule which would require all ethics rulings and orders by the Board of Governors to be accessible to the public? This record would show votes of Board of Governors members on all formal actions.
Yes __ X__ No____ Additional answer: I have long advocated for an open disciplinary process.
o. Would you favor a rules change that would allow election of the KBA President directly by all members of the Kentucky Bar Association.
Yes ____ No____ Answer: See answer to “I” There may be good reasons for the current process and I need to hear debate.
**************

THE LETTER OF NON-RESPONSE OF AMY CUBBAGE
Re: Board of Governors Questionnaire

Dear Mr. Billingsley:

Thank you for your interest in the Kentucky Bar Board of Governors’ election. As you know, the KBA Board of Governors was established by the Kentucky Supreme Court, pursuant to SCR 3.070, as the governing body of the KBA and agent of the Supreme Court to administer its Rules. One of the Board’s responsibilities is to sit in judgment on attorney disciplinary cases under SCR 3.370. Thus, I am sure you understand why I cannot comment on the issues raised in the questionnaire submitted to me. (EMPHASIS ADDED BY LAWREADER)

As to your request for my curriculum vitea, I have attached a copy. As you can see I am amply qualified for Board membership. I have been a member of the KBA since 1997. Over the years, I have volunteered my time for various committees and projects on behalf of the KBA. Most recently, I have served as a member of the Attorney Advertising commission from 2005 to 2011. I was also a member of the KBA Task Force on Attorney Advertising in 2009, which resulted in multiple amendments to the Supreme Court Rules. I am a regular CLE Speaker for the Kentucky Bar Association, speaking frequently at both Kentucky Law Update and the New Lawyers Program on ethics issues. I believe that all of these experiences demonstrate my interest and commitment to serving members of the Bar through KBA activity.
Again, thank you for your interest. I look forward to the possibility of representing the 4th. Supreme Court District on the KBA Board of Governors.

Sincerely,

Amy D. Cubbage

Larry Grause found Alive and Well at Northern Ky. Bar Dinner

Wednesday, December 12th, 2012

In the late l970’s and early 1980’s the hottest plaintiff’s lawyer in Kentucky was Larry Grause of Kenton County. It was reported that in one year he won six consecutive personal injury cases all above six figures.
He opened several night clubs including the Conservatory in Covington. The news was also full of reports of Hollywood celebrity’s visiting one of Grause’s watering holes. The last we heard of Grause was that he was headed to Hollywood for a screen test.
Then we heard nothing of Larry for many years. We recently learned that Grause is the Godfather of Eric Deters. Deter’s has enticed Grause out of retirement to assist him as a consultant in his law practice.
Grause looked prepared and ready to step back in a courtroom and making a closing argument for big bucks.

The Dept. of Public Advocacy is Suffering From Severe Budget Cuts – See court income from 120 counties

Wednesday, December 12th, 2012

The Dept. of Public Advocacy is Suffering From Severe Budget Cuts – See court income from 120 counties
Open the following link on LawReader. The income generated in all counties from fines and court fees is very interesting,
The counties that got $10 to $15 million dollar court houses don’t produce more income from some counties that did get new court houses.

Go to: http://www.lawreader.com/index.php/browse/node/9680.html

CHIEF JUSTICE REPORTS ON DEMISE OF SENIOR STATUS JUDGE PROGRAM…AND RESULTING PROBLEMS….

Sunday, December 9th, 2012

From: Chief Justice John D. Minton, Jr.
Sent: Wednesday, December 05, 2012 3:13 PM
To: All Justices and Judges; All Senior Status Judges
Cc: All Circuit Clerks; Dudgeon, Laurie; Broaddus, Lisa; Reynolds, Deborah; Shepherd, Katie; Stevens, Kathy
Subject: Senior Status Program of Special Judges

Dear Judges:

As most of you know, entry into the Senior Status Program for Special Judges sunsetted by operation of law on January 31, 2009. At that time, we experienced a large influx of senior judges into the program, many of whom have finished or will soon finish their service. By the end of 2012, only about 20 judges will remain in the program. And I anticipate that half of them will complete their service in the first few months of 2013. Because the senior status guidelines require judges to complete their service within five years, the senior status program will effectively end by January 31, 2014.

Chief Senior Status Judge Lambert completed his service at the end of October. Since that time, the senior status program has been running out of my office with the help of the senior judge administrator, Debbie Reynolds. Debbie will retire at the end of January, and my administrative assistant, Kathy Stevens, will take over the task of administering the program.

Our system has become accustomed to a cohort of experienced senior judges available on fairly short notice to cover dockets when the regular judge needed to be away. But the dwindling number of available senior judges will make it increasingly difficult to cover dockets. So senior judges will only be assigned only for the exigencies enumerated in the original Guidelines for Senior Status Program for Special Judges, specifically:

1. Vacancies resulting from death, retirement, or resignation;

2. Illness or injury requiring a judge to be unavailable for an extended period of time;

3. Situations in which there is a danger of dismissing a criminal case due to calendar congestion or other workload issues;

4. Extraordinary circumstances leading to unusually congested dockets or heavy workloads;

5. Coverage for judges attending judicial education and training;

6. Any circumstance satisfying the Chief Justice or Chief Senior Status Judge that the certifying court needs the assistance of a Special Judge.

If you are in need of a senior judge, you must specify the reason for the request on Form AOC-SJ-5 or AOC-SJ-6. Any form that is submitted without a valid reason will be denied.

The end of the senior status program also means that we will soon revert to a system of requiring sitting judges to cover dockets for other judges in each region, a program coordinated by our chief regional judges. We are in the process of updating the Regional Administration Program Charter to ensure this process operates as smoothly as possible. If you have any questions regarding the Charter, please contact your chief regional judge or my office.

As always, I appreciate everything you do for the court system.

John D. Minton, Jr.

Chief Justice of Kentucky

Administrative Office of Courts Allows Fines to Be Paid by Phone

Sunday, December 9th, 2012

Pay Fines by Phone
You may now pay fines and court costs by phone. The Kentucky Administrative
Office of the Courts in cooperation with the Jefferson Circuit Court Clerk’s
office has retained Lexis Nexus to provide a pay by phone option for the
payments of fines and court costs. You don’t wait in line at the courthouse,
call 1-866-396-1751. You may pay by American Express, MasterCard, Visa, or
Discover. A service charge is added to the total amount for the Pay by Phone
option. To confirm court dates and fines, please contact the Jefferson District
Court Clerk’s Office at (502) 595-4428.

LAWREADER SUBMITS QUESTIONAIRE FOR NOMINEES FOR THE KBA BOARD OF GOVERNORS

Saturday, December 8th, 2012

LAWREADER SUBMITS QUESTIONAIRE FOR NOMINEES FOR THE KBA BOARD OF GOVERNORS
DEC. 8. 2012

The following questionnaire will be submitted to all candidates for election as members of the Board of Governors in the December 2012 Board of Governors election. The answers will be published on LawReader.com. not later than December 20th. We invite any comments of one page or less, which you wish to be published on LawReader concerning your candidacy.
If you choose not to respond to this questionnaire, that is your right. However we will point out to our readers in the legal profession that you apparently side with the current Board Members who have a history of refusing to provide access to public records, and refusing to reveal how much the KBA spends on hiring outside counsel when they have nine full time lawyers on their staff.
1) Were you a member of the Board of Governors when the Board authorized the hiring of outside counsel to defend the KBA against the Federal Civil Rights action seeking a ruling that SCR 3.130 (8.2), (which limits the free speech of attorneys), was unconstitutional, and which cost the KBA approximately $400,000 in legal fees and court costs?
Yes____ No_____
1.a. In the Senator John M. Berry /ACLU case, in which he the Bar Counsel investigated Berry for having written a letter to the Legislative Ethics Commission critical of how they conducted a hearing involving Sen. David Williams. I would have voted to repeal the rule in SCR 3.130 (8.2) which limits the free speech of attorneys.
Yes___ No____
2) The last two KBA Presidents have declined to comply with requests for disclosure of the expenditures made by the Board of Governors to hire outside counsel in the last two years. One large law firm, has a member on the KBA Board of Governors, has done quite well in receiving large fees from the KBA Board. Are you in favor of full public disclosure of all KBA expenditures?
Yes___ No____

3) Would you support a change in the Supreme Court Rules which would:
a. Require that all ethics investigations and prosecutions be completed within one year consistent with the Speedy Trial rule in criminal prosecutions.
Yes ____ No____

b. Adopt a statute of limitations against the Bar Counsel bringing any ethics prosecution more than five years old, if it did not involve a felony offense, or financial loss to the client in excess of $5000.
Yes ____ No____

c. Would you repeal the SCR rule which allows the Bar Counsel to secretly dismiss any ethics complaint without having to report the dismissal to the Inquiry Commission, The Board, or the Supreme Court.
Yes ____ No____

d. Would you support repeal of the SCR rule which currently allows the Bar Counsel to deny reinstatement of any attorney who has served their sanction of suspension imposed by the Supreme Court. Would you support a reform taking away from the prosecutor the power to increase the sanction by merely writing a letter. The Bar Counsel currently can overrule the sentence of the Supreme Court and delay reinstatement by merely writing a letter to the Character and Fitness Committee.
Yes ____ No____

e. Do you believe that KBA officials when charged with ethics offenses, should receive special treatment denied to lawyers.
Yes ____ No____

f. Would you favor adoption of a Supreme Court Rule which would require the Board of Governors and the Supreme Court to conduct annual administrative review of the Bar Counsel’s Office, regarding conflicts of interest, reasons for excessive delays, reasons for dismissal of all complaints, review claims of excessive prosecution, review workloads, and investigate other administrative issues related to the Bar Counsel’s office?
Yes ____ No____

g. Would you favor adoption of a SCR which would allow the Supreme Court Clerk to assume the duties of the Disciplinary Clerk to select Trial Commissioners completely at random from the list of nominees submitted by the Supreme Court, and without ex parte communication with the Bar Counsel’s office or Board Members?
Yes ____ No____

h. Would you favor adoption of a SCR which would make it an ethical violation for any Board member, member of the Bar Counsel’s Office, Inquiry Commission, or Trial Commissioner to fail to remove themselves from a pending ethics prosecution, when they, or a member of their family, or law firm would financially benefit from the outcome of any ethics prosecution?
Yes ____ No____

i. Would you favor adoption of a SCR which would mandate that all plea bargains made by the Bar Counsel’s office are contracts, which must be honored by the Bar Counsel’s office?
Yes ____ No____

j. Would you favor the adoption of a SCR rule which would allow the U.S. Attorney, the County Attorney and the Commonwealth Attorney, to demand an Accounting and publication of all disbursements of funds to clients and lawyers, paid out in class action civil cases?
Yes ____ No____

k. Do you believe that the SCR rule which requires confidentiality of ethics investigations and prosecutions, applies to administrative actions of the KBA, not directly related to a pending ethics investigation or prosecution?
Yes ____ No____

l. Would you favor a rule allowing defendant attorneys appearing before the Trial Commissioner and the Board of Governors to make a recording of their hearing?
Yes ____ No____

n. Would you favor a rule which would require all ethics rulings and orders by the Board of Governors to be accessible to the public? This record would show votes of Board of Governors members on all formal actions.
Yes ____ No____

o. Would you favor a rules change that would allow election of the KBA President directly by all members of the Kentucky Bar Association.
Yes ____ No____

Bar Counsel Chided By Kentucky Supreme Court

Thursday, December 6th, 2012

Bar Counsel Chided By Kentucky Supreme Court
The following article once again demonstrates the opinion of many that the current Ky. Supreme Court continues to send a message to the KBA bar counsel office that their excessive prosecution and arrogance towards the courts will not be tolerated. The Supreme Court is increasing setting aside findings of the Bar Counsel. When will the Board of Governors exercise their power to fire members of the Bar Counsel’s office in order to replace them with lawyers you have respect for other lawyer’s rights, and realize that the Supreme Court in one meeting can disband the entire Bar Counsel’s Office. Apparently the Bar Counsel’s office can’t hear the footsteps.
The new Bar Counsel, hasn’t been in office long enough to demonstrate his administrative policies. We are still hopeful that he will make the reforms from within the Bar Counsel’s Office.
Suggestion to the new Bar Counsel: Your offices continued attempt to punish Eric Deters for minor acts, and to increase his penalty above the sanctions imposed by the Supreme Court are still ongoing! How many times will your office devote hundreds of hours of labor to repunish Deters?
Article on December 3, 2012 in Bar Discipline & Process |
With pointedly admonitory language to Bar Counsel, the Kentucky Supreme Court imposed a suspension of 181 days of an attorney who had failed to appear in courts on behalf of himself and others.
The court’s concerns were procedural in nature and related to Bar Counsel’s approach:
While KBA disciplinary proceedings are frequently treated as prosecutorial in nature, they are not criminal proceedings. Rather, they are civil disciplinary matters carried out by an agency of this Court.
Bar Counsel seems to conflate disciplinary proceedings with criminal plea bargains or guilty pleas, or civil settlement agreements, whereby the judge maintains a role throughout the negotiation process, including approval of the parties’ agreement.
We caution Bar Counsel not to conflate a Trial Commissioner with a trial court, nor Bar Counsel with a prosecutor. While there are some similarities, the rules indicate neither is identical in function or authority.
And:
We need not remind Bar Counsel that it is the province of this Court, not Bar Counsel, to interpret its own rules.
Notwithstanding its procedural concerns, the court found that the disposition was not “patently unfair” and ended three years of ongoing investigations. (Mike Frisch)
December 3, 2012 in Bar Discipline & Process

Court of Appeals Judge Sara Walter Combs named woman of distinction by Girl Scouts

Thursday, December 6th, 2012

FRANKFORT, Ky., Dec. 6, 2012 – Court of Appeals Judge Sara Walter Combs has been recognized as a woman of distinction by the Girl Scouts of Wilderness Road for being a positive role model for girls. The organization honored Judge Combs at its Women of Distinction event Nov. 5 in Lexington.

In celebrating the 100th anniversary of the Girl Scouts, the Wilderness Road group recognized 100 outstanding women who have made significant contributions to the lives of Kentuckians in Northern, Central and Eastern Kentucky. Judge Combs and 29 other living honorees were celebrated and received an award at the Women of Distinction event.

“It is a high honor indeed to be in the company of the outstanding women who have made Kentucky great and to be among the many who are endeavoring to maintain that tradition,” Judge Combs said.

The women were selected for professional accomplishments that make them positive role models for girls, inspiring girls to achieve their own goals and dreams. The women of distinction exemplify ethical leadership and a commitment to making a difference in the lives of their fellow citizens, according to the Girl Scouts. The honorees come from a variety of professional backgrounds, including education, finance, communications, non-profit management, law and philanthropy.

Judge Combs

Sara W. Combs was the first woman and the first judge from the Eastern Kentucky counties of the 7th Appellate District to serve as chief judge of the Kentucky Court of Appeals. She served in that role from June 2004 until May 2010.

Judge Combs also made history by being the first woman to serve on the Supreme Court of Kentucky when then Gov. Brereton Jones appointed her to serve on the state’s highest court in l993. After she narrowly lost her election to retain that seat on the Supreme Court, Gov. Jones appointed her to fill a vacancy on the Court of Appeals in 1994. She was elected to the court in November 1994 and re-elected in 2000 and again in 2006.

The Kentucky Bar Association named Judge Combs as Outstanding Judge of the Year in June 2010.

Judge Combs ranked second in her class at the University of Louisville Brandeis School of Law, which later honored her with a Distinguished Alumni Award. She was valedictorian at both Sacred Heart Academy in Louisville and U of L, where she obtained an undergraduate degree in French. She also earned her master’s degree in French from U of L, having been recognized as a Woodrow Wilson Designate.

Judge Combs has taught at the high school and university levels in addition to gaining broad experience in the practice of law. She began her career as an associate with Wyatt, Tarrant & Combs in Louisville before serving as corporate counsel to an advertising company. She also practiced law with her late husband, former Kentucky Gov. Bert T. Combs; established a solo practice in Stanton; and became a regional associate with the Louisville law firm of Mapother & Mapother.

She is affiliated with numerous professional, educational and civic organizations. She is a member of the Kentucky Bar Association, the Louisville Bar Association and the University Press of Kentucky. She also serves on the boards of Pikeville College and Lees College. She previously served for seven years on the Kentucky Appalachian Commission.

Judge Combs currently resides at Fern Hill in Stanton, the farm she shared with her late husband, Gov. Bert T. Combs.

Court of Appeals

Nearly all cases heard by the Kentucky Court of Appeals come to it on appeal from a lower court. If a case is tried in Circuit Court or District Court and the losing parties involved are not satisfied with the outcome, they may ask for a higher court to review the correctness of the trial court’s decision. Some cases, such as criminal case acquittals and divorces, may not be appealed. In a divorce case, however, child custody and property rights decisions may be appealed. Cases are not retried in the Court of Appeals. Only the record of the original court trial is reviewed, with attorneys presenting the legal issues to the court for a decision.

Fourteen judges, two elected from seven appellate court districts, serve on the Court of Appeals. The judges are divided into panels of three to review and decide cases, with the majority determining the decision. The panels do not sit permanently in one location, but travel throughout the state to hear cases.

###

Administrative Office of the Courts

The Administrative Office of the Courts in Frankfort is the operations arm for the state court system

PROPOSED QUESTIONAIRE FOR NOMINEES OF BOARD OF GOVERNORS

Wednesday, December 5th, 2012

PROPOSED QUESTIONAIRE FOR NOMINEES OF BOARD OF GOVERNORS

The following questionnaire will be submitted to all candidates for election as members of the Board of Governors in the December 2012 Board of Governors election. The answers will be published on LawReader.com. not later than December 20th. We invite any comments of one page or less, which you wish to be published on LawReader concerning your candidacy.

If you choose not to respond to this questionnaire, that is your right. However we will point out to our readers in the legal profession that you apparently side with the current Board Members who have a history of refusing to provide access to public records, and refusing to reveal how much the KBA spends on hiring outside counsel when they have nine full time lawyers on their staff.

1) Were you a member of the Board of Governors when the Board authorized the hiring of outside counsel to defend the KBA against the Federal Civil Rights action seeking a ruling that SCR 3.130 (8.2), (which limits the free speech of attorneys), was unconstitutional, and which cost the KBA approximately $400,000 in legal fees and court costs?
Yes____ No_____

1.a. In the Senator John M. Berry /ACLU case, in which he the Bar Counsel investigated Berry for having written a letter to the Legislative Ethics Commission critical of how they conducted a hearing involving Sen. David Williams. I would have voted to repeal the rule in SCR 3.130 (8.2) which limits the free speech of attorneys.
Yes___ No____

2) The last two KBA Presidents have declined to comply with requests for disclosure of the expenditures made by the Board of Governors to hire outside counsel in the last two years. One large law firm, has a member on the KBA Board of Governors, has done quite well in receiving large fees from the KBA Board. Are you in favor of full public disclosure of all KBA expenditures?
Yes___ No____

3) Would you support a change in the Supreme Court Rules which would:
a. Require that all ethics investigations and prosecutions be completed within one year consistent with the Speedy Trial rule in criminal prosecutions.
Yes ____ No____

b. Adopt a statute of limitations against the Bar Counsel bringing any ethics prosecution more than five years old, if it did not involve a felony offense, or financial loss to the client in excess of $5000.
Yes ____ No____

c. Would you repeal the SCR rule which allows the Bar Counsel to secretly dismiss any ethics complaint without having to report the dismissal to the Inquiry Commission, The Board, or the Supreme Court.
Yes ____ No____

d. Would you support repeal of the SCR rule which currently allows the Bar Counsel to deny reinstatement of any attorney who has served their sanction of suspension imposed by the Supreme Court. Would you support a reform taking away from the prosecutor the power to increase the sanction by merely writing a letter. The Bar Counsel currently can overrule the sentence of the Supreme Court and delay reinstatement by merely writing a letter to the Character and Fitness Committee.
Yes ____ No____

e. Do you believe that KBA officials when charged with ethics offenses, should receive special treatment denied to lawyers.
Yes ____ No____

f. Would you favor adoption of a Supreme Court Rule which would require the Board of Governors and the Supreme Court to conduct annual administrative review of the Bar Counsel’s Office, regarding conflicts of interest, reasons for excessive delays, reasons for dismissal of all complaints, review claims of excessive prosecution, review workloads, and investigate other administrative issues related to the Bar Counsel’s office?
Yes ____ No____

g. Would you favor adoption of a SCR which would allow the Supreme Court Clerk to assume the duties of the Disciplinary Clerk to select Trial Commissioners completely at random from the list of nominees submitted by the Supreme Court, and without ex parte communication with the Bar Counsel’s office or Board Members?
Yes ____ No____

h. Would you favor adoption of a SCR which would make it an ethical violation for any Board member, member of the Bar Counsel’s Office, Inquiry Commission, or Trial Commissioner to fail to remove themselves from a pending ethics prosecution, when they, or a member of their family, or law firm would financially benefit from the outcome of any ethics prosecution?
Yes ____ No____

i. Would you favor adoption of a SCR which would mandate that all plea bargains made by the Bar Counsel’s office are contracts, which must be honored by the Bar Counsel’s office?
Yes ____ No____

j. Would you favor the adoption of a SCR rule which would allow the U.S. Attorney, the County Attorney and the Commonwealth Attorney, to demand an Accounting and publication of all disbursements of funds to clients and lawyers, paid out in class action civil cases?
Yes ____ No____

k. Do you believe that the SCR rule which requires confidentiality of ethics investigations and prosecutions, applies to administrative actions of the KBA, not directly related to a pending ethics investigation or prosecution?
Yes ____ No____

l. Would you favor a rule allowing defendant attorneys appearing before the Trial Commissioner and the Board of Governors to make a recording of their hearing?
Yes ____ No____

n. Would you favor a rule which would require all ethics rulings and orders by the Board of Governors to be accessible to the public? This record would show votes of Board of Governors members on all formal actions.
Yes ____ No____

o. Would you favor a rules change that would allow election of the KBA President directly by all members of the Kentucky Bar Association.
Yes ____ No____

Vital Statistics Announces Changes to Divorce Form

Wednesday, December 5th, 2012

JUDGE SHEY SENT US THIS TIP ON A NEW DIVORCE FORM

Vital Statistics Announces Changes to Divorce Form

State Switching to Electronic-based Form Jan. 1, 2013

FRANKFORT, Ky. (Dec. 3, 2012) – Obtaining forms for registering divorces with the Kentucky Office of Vital Statistics will soon be made easier, the Cabinet for Health and Family Services (CHFS) announced today.

In compliance with a new law enacted by the 2012 General Assembly, the Office of Vital Statistics is slated to make new electronic documents for reporting divorces to the agency available via the agency’s website by the end of the calendar year. CHFS officials report that a new electronic version of the document, primarily used by attorneys, will be accessible online beginning in December 2012 for use in the completion of all divorce certificates filed with the agency. This new electronic form will be required for all divorces filed on Jan. 1, 2013, and thereafter.

“Making the divorce form available electronically will allow the document to be much more accessible to legal representatives of divorcing couples,” said Kentucky State Registrar Paul Royce. “We’re very happy to be able to accommodate the needs of the courts and are working to make sure they are aware of this important change to our recordkeeping system.”

CHFS is partnering with the Administrative Office of the Courts to make sure key audiences are aware of the change. Notifications will be sent to all circuit clerks in the state, as well as the Kentucky Bar Association and various attorney groups and associations.

“We’re pleased to work with the Kentucky Office of Vital Statistics to help make the divorce certificate available in an electronic format,” said Laurie K. Dudgeon, director of the Administrative Office of the Courts, which provides administrative support to the state court system. “This new format will make it much easier to complete and file with Vital Statistics.”

Royce noted the current paper form will no longer be available as of Jan, 1, 2013 – the date the Office of Vital Statistics will begin accepting the new form. The Office of Vital Statistics will no longer accept the old form for processing as of that date.

“Any old forms submitted after January1 will be returned to the sender and required to be resubmitted on the new format,” said Royce.

Changes are due to legislation passed by the 2012 Kentucky General Assembly calling for an electronic version of the divorce form that could be completed electronically and downloaded from the Office of Vital Statistic’s website. At present, divorce forms are paper-based and must be obtained at local health department offices.

Under the new law, Senate Bill 57, the form can be obtained electronically by legal staff and printed for processing through circuit court clerk offices. The downloadable divorce form is identified as the VS-300.

Additionally, the dimensions of the form will change to a standard letter size paper and the revision date will be updated to (REV 01/2013). The revised document will also require attorneys to supply their address.

The new form, along with detailed instructions, will be available Dec. 3, 2012 at http://chfs.ky.gov/dph/vital/.