Archive for December, 2011

Study: 80% of all workplace rumors are true

Sunday, December 4th, 2011

How to deal with rumors on the grapevine

By Kim Harrison,

Consultant, Author and Principal of www.cuttingedgepr.com
http://www.cuttingedgepr.com/articles/empcomm_grapevine.asp

If managers and supervisors don’t attend to the communication needs of their staff, there is no vacuum of information. Instead,
the informal avenue of rumors grows, frequently putting a destructive slant on organizational happenings when employees are uncertain. Some people say that up
to 70% of the information employees receive is via the grapevine.

Information via the grapevine invariably moves much faster than through formal communication channels. This is its greatest attribute.
Emails have now joined the grapevine communication channels, making it even faster.

The ‘grapevine’ is the informal communication network found in every organization. The term can be traced back to the United States Civil
War in the 1860s. Since battlefronts moved frequently, army telegraph wires were strung loosely from tree to tree across battlefields, somewhat like wires
used to support grapevines. The wires were used to carry telegraph messages created in Morse code (the electronic alphabet, invented in 1844) because the
telephone wasn’t invented until 1876. Since the lines often were strung hastily during battle, and messages were composed in a hurry, the resulting
communication tended to be garbled and confusing. Soon, any rumor was said to have been heard ‘on the grapevine’.

There are four types of grapevine rumors:

Wish  fulfillment – identifying the wishes and  hopes of employees.

  1. ‘Bogey  rumors’ – exaggerating employees’  fears and concerns.

 

    2. Wedge-drivers’ – aggressive, unfriendly and damaging. They split  groups and dissolve allegiances.

    1. ‘Home-stretchers’ – anticipating final decisions or announcements. They  tend to fill the gap during times of ambiguity.
    2. Research shows that grapevine information tends to be about 80% accurate. Since many rumors start from someone’s account of an actual event, there are strong
      elements of truth in many rumors.

    Why do people spread rumors? Humans are social animals – we need to talk to others. Chat about others helps to strengthen existing relationships. Besides entertainment value, gossiping can raise people’s self
    esteem – we feel more important by getting information first and by the interest it creates.

    It is rare to find people at different levels discussing rumors or gossiping with each other. When two people share a rumor or gossip it has the effect of putting them on a relatively equal footing.

    The grapevine can play an important part in the ‘management by walking around’ approach. When managers move around the office without a particular objective, they can pick up relevant rumors. This information would
    not have become available if the manager had stayed in their office all day.

    Managers can sometimes purposely send messages through the grapevine to test the likely reaction to a possible management decision. This can allow feedback to take place and adjustments made before final decisions
    are made. Thus the grapevine can contribute to a more inclusive workplace.

    How to minimize destructive rumors
    PR practitioners can expect to encounter harmful rumors on the organizational grapevine quite often – about once a week on average, according to research. Although not always harmful, rumors can reduce employee
    productivity, tarnish personal reputations and interfere with organizational communication. Rumors obviously abound during restructuring and retrenchment processes – when employees are nervous about their jobs they waste time talking about the rumors and their work rate falls. External rumors are known to have hit sales, damaged corporate reputations and caused share prices to fall.

    Most rumors are concerned with common organizational changes such as possible mergers and acquisitions, new aspects of mergers and acquisition processes that are already under way, changes in staffing,
    retrenchment plans and restructurings.

    Research conducted with 74 experienced PR professionals in corporate positions and consultancies, suggested that about a third of rumors related to personnel changes such as a senior executive leaving to join the
    opposition, about staff changes due to a shake-up in management and about changes caused by a merger or acquisition.

    A further third of rumors were about job satisfaction and security. Job satisfaction rumors comprised hearsay about unhappy employees, dissatisfaction with management and transfer of duties. Job security rumors
    were about lay-offs caused by downsizing, restructuring, plant closing etc. The balance comprised speculation and gossip on a variety of topics.

    Plans can be activated to prevent and reduce rumors, although rumors are relatively difficult to grapple with. The important thing is to maintain a good communication flow using several alternative avenues to
    convey the same message. It is helpful even to say that information is incomplete or discussions are in progress, and staff will be informed as soon as there is progress information available. It is futile to wait until
    everything is in place before issuing a statement because staff quickly notice unusual happenings and they know when unusual requests for information are
    received from head office. They will speculate about it – usually with some paranoia.
    Preventative measures should include keeping staff regularly, fully and honestly informed of planned changes through a range of tailored formal and informal communication avenues such as emails and
    face-to-face meetings at various levels. Sometimes external stakeholders also need to receive timely messages to prevent a harmful rumor from spreading outside the organization.

    An early warning system is a good way to reduce harmful rumors that are already circulating: staff in various locations can be informally appointed to monitor and report on early indications of rumors.
    Depending on the nature of the rumors, similar distribution channels to those in the previous paragraph could be established. In addition, a rumor ‘hotline’ – an internal telephone service or email address – could be set up to receive
    questions from employees about rumors in circulation.

    PR staff could prepare messages on the issues for management and supervisors to communicate in response. The messages should be tailored to specific audiences and need to be couched in the everyday language of the
    workplace, not in ‘management-speak’.

    The appropriate manager should confirm true rumors or true parts of rumors to staff as soon as possible. Management should avoid playing word games with the truth or parts of the truth in order to minimize bad news.
    Their credibility will suffer massively if they try this. However, research in 2004 by Towers Perrin HR Services found that 55% of workers interviewed agreed that “My organization tries too hard to put a positive spin on issues in its
    communication to employees.”

    Only 21% disagreed. As the sample was relatively small, 1,000 workers, the finding can’t necessarily be extrapolated too widely; nevertheless, a lesson is there.

    False rumors should be refuted by an authoritative source. For instance, the chief financial officer should deal with a rumor about cash flow, and the human resources manager should deal with a rumor about pay changes.
    Sometimes a respected external source is best placed to authoritatively refute a rumor. The refutations should be clear, strong, consistent and truthful. No response or a ‘no comment’ response only add to further damaging speculation,
    so avoid this as much as possible.

    US research showed that a reasonably effective approach to minimizing rumors is to provide structuring to uncertainty. For instance, by explaining the procedures by which planned changes will be decided, the
    employer gives employees the comfort of knowing the broad guidelines that will be used. Similarly, telling them when an official announcement will be made at least provides them with some structure or stability of intent, even if the
    content of the announcement is not known to them.

    Another technique, requiring your professional judgment, is merely to ignore the rumor and allow it to be overtaken by events.

    Experience in the workplace showed that a punitive approach didn’t work, i.e. to search for and/or seek to punish people who started or
    spread the rumor.

    Kentucky Supreme Court Suggests Attorney Defending Against Ethics Complaint May Demand His Rights Under 5th. Amendment Not To Incriminate Himself

    Sunday, December 4th, 2011

    Kentucky Bar Ass’n v. Rorrer, 222 S.W.3d 223 (Ky., 2007)
    Rorrer poses a more difficult question on his conviction for failing to respond to the KBA’s request for information. Although his criminal conviction had been
    finalized, Rorrer was in the process of appealing his sentence during much of the attorney discipline process. And Rorrer’s response to the charges against
    him alleged that he did not answer the initial complaint because he wanted to exercise his Fifth Amendment right to avoid self-incrimination. But Rorrer did
    not raise this self-incrimination argument until after the Inquiry Commission had issued the charges.

    Obviously, each attorney is obligated to respond to the KBA’s lawful request for information involved in a disciplinary investigation.12 But
    the Fifth Amendment guarantees each person a right to avoid self-incrimination.
    13 In certain cases, therefore, there is a conflict between an attorney’s obligation
    under SCR 3.130(8.1)(b) to respond to a lawful request for information in an attorney discipline matter and the attorney’s constitutional right to avoid
    self-incrimination.

    Ideally, Rorrer should have responded to the Inquiry Commission’s initial complaint by simply stating that he was not able to provide the requested information
    because he was asserting his Fifth Amendment privilege against self-incrimination.

    Such a response should have precluded a later charge that his non-cooperation was a violation of SCR 3.130(8.1)(b). But Rorrer said nothing.

    Generally, a person’s Fifth Amendment right to avoid self-incrimination is not self-executing, meaning it must be affirmatively claimed.14 Of
    course, there are exceptions to that general rule, such as in situations where the invocation of the privilege would lead to potential penalties sufficient to
    force self-incrimination.15

    Although we question whether the KBA’s request for materials regarding an allegation of misconduct at a time where Rorrer’s conviction was final and only his period of
    incarceration remained in flux falls within the “classic penalty situation”16 exception, we need not definitively rule on [222 S.W.3d 229] that issue since Rorrer’s criminal misconduct standing alone warrants disbarment, regardless of
    whether his failure to respond to the complaint is, under the unique facts of this case, a violation of SCR 3.130(8.1)(b).17

    See full text of case:

     

    222
    S.W.3d 223

    KENTUCKY
    BAR ASSOCIATION, Movant,

    v.

    George T. RORRER III, Respondent.
    No.
    2006-SC-000603-KB.

    Supreme
    Court of Kentucky.

    May
    24, 2007.

    [222
    S.W.3d 224]
    OPINION
    AND ORDER

    The
    Board of Governors of the Kentucky Bar Association has recommended to this
    Court that George T. Rorrer III, whose bar roster address is 500 W.
    Jefferson Street, Suite 2000; Louisville, Kentucky 40202, be permanently
    disbarred from the practice of law. We granted review in order to determine
    whether disbarment is the appropriate penalty for Rorrer’s misconduct.
    After examining the parties’ briefs and the applicable law, we conclude
    that it is.
    [222
    S.W.3d 225]
    In
    December 1999, Rorrer was indicted in the United States District Court for
    the Western District of Kentucky for the offense of conspiracy to conduct a
    criminal financial transaction affecting foreign and interstate commerce,
    an offense commonly called money laundering. According to the indictment,
    between September 1998 and July 1999, Rorrer and John Caporale, Rorrer’s
    client, executed a false construction contract calling for the payment of
    $34,000 to or on behalf of JOHN E. CAPORALE for remodeling work to be done,
    when in fact JOHN E. CAPORALE, aided and abetted by GEORGE T. RORRER, his
    attorney, made a cash loan of $29,000 to another to be repaid in a single
    payment of $34,000, which cash loan involved the proceeds of a specified
    unlawful activity, that is distribution of controlled substances in
    violation of Title 21, United States Code, Section 841(a)(1), knowing that
    the transaction was designed in whole and in part to conceal and disguise
    the nature, source, ownership, and control of the proceeds of said
    specified unlawful activity and that while conducting and attempting to
    conduct such financial transaction knew that the property involved in the
    financial transaction, that is funds in the amount of $29,000, represented
    the proceeds of some form of unlawful activity.’1
    In
    July 2000, a jury found Rorrer guilty of conspiracy to commit the crime of
    money laundering as charged in the indictment. Thus, in September 2000, we
    issued an order temporarily suspending Rorrer’s license to practice law.2 In
    January 2001, Rorrer was sentenced to thirty-seven months’ imprisonment.
    Rorrer appealed, and the United States filed a cross-appeal claiming that
    Rorrer’s sentence should have been increased because he used his special
    skills as an attorney to further the conspiracy.
    In
    May 2003, the United States Court of Appeals for the Sixth Circuit affirmed
    Rorrer’s conviction and otherwise denied his claims for relief, except that
    the court found that (1) the record did not clearly state whether the trial
    court had afforded Rorrer an opportunity to allocute before imposition of
    sentence, (2) Rorrer’s sentence should have been subject to enhancement due
    to Rorrer’s use of a special skill as a lawyer in furthering the criminal
    purpose of the conspiracy,3
    and (3) the trial court erred when it reduced Rorrer’s sentence for being a
    minor participant in the conspiracy.4
    Thus, Rorrer’s conviction was affirmed; but the case was remanded
    [222
    S.W.3d 226]
    to
    the trial court with instructions to hold a new sentencing hearing.
    In
    November 2003, the trial court re-sentenced Rorrer to fifty-seven months’
    imprisonment. Rorrer again appealed his sentence to the Sixth Circuit. In
    June 2004, while Rorrer’s second appeal was pending before the Sixth
    Circuit, the KBA authorized the Inquiry Commission to initiate an
    investigation of Rorrer due to his criminal convictions. Rorrer was served
    with a copy of that Inquiry Commission complaint while incarcerated. Rorrer
    did not respond to the complaint, even after the Office of Bar Counsel sent
    him a letter warning him of the possible consequences if he failed to
    respond.
    In
    October 2004, while Rorrer’s second appeal was pending, the Inquiry
    Commission issued a three-count charge against Rorrer.

    Count I charged Rorrer with violating [Kentucky Supreme Court Rule] SCR
    3.130(8.3)(13), which states that a lawyer commits professional misconduct
    if he “[c]ommit[s] a criminal act that reflects adversely on the
    lawyer’s honesty, trustworthiness[,] or fitness as a lawyer in other
    respects”;

    Count II charged Rorrer with violating SCR 3.130(8.3)(c), which provides
    that a lawyer commits professional misconduct if he “[e]ngage[s] in
    conduct involving dishonesty, fraud, deceit[,] or misrepresentation”;
    and

    Count III charged Rorrer with violating
    SCR 3.130(8.1)(b), which states that a lawyer shall not “knowingly
    fail to respond to a lawful demand for information from an admissions or
    disciplinary authority[.]“

    While
    still in jail, Rorrer filed a response to the charge in November 2004. In
    his response, Rorrer admitted that he had been convicted of conspiracy to
    commit money laundering in federal court. But he denied violating SCR
    3.130(8.3)(b) and (e); and he denied having failed to respond to a lawful
    demand for information from the KBA because his conviction was “still
    under appeal and, therefore, not final pursuant to 18 U.S.C. § 3742 and
    United States v. Clark, 110 F.3d 15 (6th Cir.1997)
    … To do so
    [i.e., respond to the charge] might possibly force Rorrer to waive his
    Fifth Amendment rights against self-incrimination under the United States
    Constitution.”
    Eventually,
    a trial commissioner was appointed who, in September 2005, conducted an
    evidentiary hearing on the charges against Rorrer. In October 2005, the
    commissioner issued a report recommending that Rorrer be found guilty of
    all three counts and, consequently, disbarred. Both Rorrer and the KBA
    filed separate notices of appeal.5
    Meanwhile,
    in December 2005, the Sixth Circuit again vacated Rorrer’s sentence due to
    the United States Supreme Court’s recent decision invalidating the
    previously mandatory nature of the federal sentencing guidelines.6
    The record before us does not show what, if any, subsequent developments
    transpired in Rorrer’s federal criminal case.
    In
    May 2006, the Board heard oral arguments on the appeals from the trial
    commissioner’s recommendations. In August
    [222
    S.W.3d 227]
    2006,
    the Board issued its findings of fact, conclusions of law, and
    recommendation, in which it adopted, by a vote of 11-3, the trial
    commissioner’s report and recommendations.
    In
    December 2006, a majority of this Court voted to review the Board’s
    decision under SCR 3.370(9). Both Rorrer and the KBA filed briefs outlining
    their respective positions. After examining those briefs and the applicable
    law, we conclude that disbarment is a proper punishment for Rorrer’s
    serious professional misconduct.
    The
    crux of this case is not whether Rorrer violated SCR 3.130(8.3)(b). It is
    uncontested that Rorrer was convicted of the felony offense of conspiracy
    to commit money laundering in federal court. Although much legal wrangling
    has ensued over Rorrer’s sentence, Rorrer’s conviction was upheld on
    appeal. Thus, it is clear that Rorrer was convicted of a criminal offense
    which “reflect[ed] adversely on [his] … honesty, trustworthiness[,]
    or fitness as a lawyer[.]“7
    Furthermore,
    Rorrer’s contention that he cannot be disciplined because the KBA failed to
    prove the exact role he played in the money-laundering conspiracy is
    without merit. Unlike the prosecution in a criminal case, the Kentucky Bar
    Association is not an agency whose purpose is to prosecute criminal
    offenses. Attorney discipline matters are not fresh opportunities for
    attorneys who have been convicted of criminal offenses to re-litigate the
    merits of their criminal convictions.8
    Accordingly, in an attorney discipline matter, the KBA is not required to
    prove conclusively the precise and detailed facts that led to the
    attorney’s criminal conviction. To the contrary, the mere fact that an
    attorney, such as Rorrer, has been convicted of a felony offense, such as conspiracy
    to launder money, “forecloses further inquiry into the issue of
    respondent’s guilt or innocence of the [criminal] offense.”9 So
    we conclude that Rorrer is clearly guilty of violating SCR 3.130(8.3)(b),
    based upon his conviction in the United States District Court for the
    Western District of Kentucky for the offense of conspiracy to launder
    money.
    Likewise,
    we conclude that Rorrer is also guilty of violating SCR 3.130(8.3)(c). We
    utterly reject Rorrer’s argument that his conviction for conspiracy to launder
    drug money is not a crime involving dishonesty. To the contrary, we
    conclude such a conviction is clear evidence that Rorrer engaged in conduct
    “involving dishonesty, fraud, deceit[,] or misrepresentation.”10
    According to the Sixth Circuit, Rorrer instigated the actions leading to
    the money laundering conspiracy and used his skills as an attorney to draft
    a fictitious
    [222
    S.W.3d 228]
    contract
    to further that conspiracy.11
    Obviously, Rorrer’s criminal conduct inherently involved dishonesty, fraud,
    and/or deceit.
    Rorrer poses a more difficult question on his conviction for
    failing to respond to the KBA’s request for information. Although his
    criminal conviction had been finalized, Rorrer was in the process of
    appealing his sentence during much of the attorney discipline process. And
    Rorrer’s response to the charges against him alleged that he did not answer
    the initial complaint because he wanted to exercise his Fifth Amendment
    right to avoid self-incrimination. But Rorrer did not raise this self-incrimination
    argument until after the Inquiry Commission had issued the charges.

    Obviously, each attorney is obligated to respond to the
    KBA’s lawful request for information involved in a disciplinary
    investigation.
    12 But the Fifth Amendment
    guarantees each person a right to avoid self-incrimination.
    13 In certain cases,
    therefore, there is a conflict between an attorney’s obligation under SCR
    3.130(8.1)(b) to respond to a lawful request for information in an attorney
    discipline matter and the attorney’s constitutional right to avoid
    self-incrimination.

    Ideally,
    Rorrer should have responded to the
    Inquiry Commission’s initial complaint by simply stating that he was not
    able to provide the requested information because he was asserting his
    Fifth Amendment privilege against self-incrimination.
    Such a response
    should have precluded a later charge that his non-cooperation was a
    violation of SCR 3.130(8.1)(b). But Rorrer said nothing.
    Generally, a person’s Fifth Amendment right to
    avoid self-incrimination is not self-executing, meaning it must be
    affirmatively claimed.
    14 Of
    course, there are exceptions to that general rule, such as in situations
    where the invocation of the privilege would lead to potential penalties
    sufficient to force self-incrimination.15
    Although we question whether the KBA’s request for materials regarding an
    allegation of misconduct at a time where Rorrer’s conviction was final and
    only his period of incarceration remained in flux falls within the
    “classic penalty situation”16
    exception, we need not definitively rule on
    [222
    S.W.3d 229]
    that
    issue since Rorrer’s criminal misconduct standing alone warrants
    disbarment, regardless of whether his failure to respond to the complaint
    is, under the unique facts of this case, a violation of SCR 3.130(8.1)(b).17
    Thus,
    we now turn to the heart of this matter: what sanction is appropriate for
    Rorrer’s criminal misconduct? Both Rorrer and the KBA discuss prior
    precedent, which each contends should guide our decision. Obviously, each
    case involving attorney discipline is factually unique and, thus, may be
    distinguished from the case at hand. However, our precedent is crystal
    clear: we treat criminal financial misconduct by attorneys very seriously;
    and we have previously found that disbarment was appropriate for numerous
    attorneys who had committed criminal offenses involving dishonesty in
    financial matters.18 Thus, Rorrer’s
    argument to the contrary notwithstanding, disbarment is not a
    disproportionate penalty for his criminal misconduct.
    Though
    he continues to maintain his innocence, it is uncontested that Rorrer was
    convicted of a serious felony offense in federal court and that his
    conviction was affirmed on appeal. Furthermore, Rorrer’s criminal conduct
    involved using his professional skills to further a conspiracy involving
    his client and the laundering, or attempted laundering, of drug money.
    Obviously, such serious criminal conduct brings dishonor to both Rorrer and
    to the entire bench and bar.19
    Thus, we believe
    [222
    S.W.3d 230]
    that
    Rorrer’s criminal misconduct is sufficiently serious as to warrant
    permanent disbarment.20
    ACCORDINGLY,
    IT IS HEREBY ORDERED THAT:
    (1)
    Respondent, George T. Rorrer III, is permanently disbarred from the
    practice of law;
    (2)
    In accordance with SCR 3.450, Rorrer is directed to pay all costs
    associated with these disciplinary proceedings against him, said sum being
    $1,501.16, for which execution may issue from this Court upon finality of
    this Opinion and Order; and
    (3)
    Pursuant to SCR 3.390, Rorrer shall, within ten (10) days from the entry of
    this Opinion and Order, notify all clients, in writing, of his inability to
    represent them; notify, in writing, all courts in which he has matters
    pending of his disbarment from the practice of law; and furnish copies of
    all letters of notice to the Executive Director of the Kentucky Bar
    Association. Furthermore, to the extent possible, Rorrer shall immediately
    cancel and cease any advertising activities in which he is engaged.
    All
    sitting. All concur.
    ENTERED:
    May 24, 2007.
    /s/ Joseph
    E. Lambert
    Chief
    Justice
    —————
    Notes:
    1. See
    also Kentucky
    Bar Association v. Rorrer,

    28 S.W.3d 308 (Ky.2000)
    .
    2. Id.
    3. See
    United States v. Robertson,
    67 Fed.Appx. 257, 273 (6th Cir.2003)
    (“We find that the district court acted contrary to the manifest
    weight of the evidence in holding that Rorrer used no special skill. It is
    apparent that lawyering is a special skill, and Rorrer used that skill in
    accomplishing this transaction when he brought the parties together,
    recommended that they launder the money via a false construction contract,
    drew up that contract, and recommended to Hawkins that she deposit the
    money in small amounts to conceal the transaction from the IRS.”).
    4. Id.
    at 272 (“The court’s conclusion appears to lack a foundation, however,
    given that Rorrer, far from being less culpable in the money laundering
    than the other participants, was in fact the central figure in the
    operation: he instigated the transaction by connecting Hawkins and
    Caporale; he facilitated it by writing a phony contract; and he offered his
    own office space to complete the transaction. All that Caporale had to do
    was to walk in with the money, and sign on the dotted line. We conclude
    that the district court clearly erred in granting a two-level decrease for
    being a minimal participant.”).
    5.
    Apparently, the Office of Bar Counsel appealed “for the purpose of
    permitting the Board [of Bar Governors] to review the entire case, inasmuch
    as it [the Office of Bar Counsel] agreed with the Trial Commissioner’s
    ruling.”
    6. See
    United States v. Rorrer,
    161 Fed.Appx. 518 (6th Cir.2005) (relying upon
    United States v. Booker, 543 U.S. 220
    , 125
    S.Ct. 738
    , 160
    L.Ed.2d 621 (2005)
    ).
    7.
    SCR 3.130(8.3)(b).
    8. Cf.
    Marsh
    v. Kentucky Bar Ass’n,

    28 S.W.3d 859, 860 (Ky.2000)
    (“The Kentucky Bar Association does
    not object to the Movant’s motion to resign, but does object to the terms
    of the disbarment. The Kentucky Bar Association requests that the order
    accepting the resignation state that the Movant committed the unethical and
    unprofessional acts as charged by the Inquiry Tribunal. Marsh, however,
    does not acknowledge his guilt, as he asserts in his motion that he `has no
    knowledge or memory of the criminal action.’ Nonetheless, Marsh was
    convicted beyond a reasonable doubt by a jury. Such a standard of proof is
    much higher than that of the civil standard, preponderance of the evidence.
    As such, his criminal conviction is conclusive proof of his guilt for the
    purposes of our proceedings.
    “) (emphasis added).
    9.
    Kentucky State Bar Ass’n v. Lester, 437 S.W.2d 958, 959 (Ky.1968)
    .
    See also Kentucky
    Bar Ass’n v. Horn,

    4 S.W.3d 135, 137 (Ky.1999)
    .
    10.
    SCR 3.130(8.3)(c).
    11.
    See Robertson, 67 Fed.Appx. at 272-73 (“Rorrer, far from being
    less culpable in the money laundering than the other participants, was in
    fact the central figure in the operation: he instigated the transaction by
    connecting Hawkins and Caporale; he facilitated it by writing a phony
    contract; and he offered his own office space to complete the
    transaction…. It is apparent that lawyering is a special skill, and
    Rorrer used that skill in accomplishing this transaction when he brought
    the parties together, recommended that they launder the money via a false
    construction contract, drew up that contract, and recommended to Hawkins
    that she deposit the money in small amounts to conceal the transaction from
    the IRS.”).
    12.
    See SCR 3.130(8.1)(b).
    13.
    See also Kentucky Const. § 11 (“In all criminal prosecutions
    the accused … cannot be compelled to give evidence against
    himself[.]“).
    14.
    See generally 81 Am.Jur.2d Witnesses § 112 (2007).
    15.
    See, e.g., State
    v. Fuller,

    276 Mont. 155
    , 915 P.2d 809, 812 (1996) (“There is an exception,
    however, to the general rule that a defendant must affirmatively invoke the
    privilege in order to enjoy its protections. Failure to invoke the
    privilege does not preclude the benefit if the defendant is placed in a
    situation where he is not free to admit, deny, or refuse to answer.”)
    (citing Minnesota
    v. Murphy,

    465 U.S. 420, 429
    , 104
    S.Ct. 1136
    , 79
    L.Ed.2d 409 (1984)
    ) (internal quotation marks omitted).
    16.
    Minnesota, 465 U.S. at 435, 104
    S.Ct. 1136
    .
    17.
    Such a conclusion is in accordance with the trial commissioner’s report, in
    which the commissioner found that Rorrer did violate SCR 3.130(8.1)(b), but
    did not “sanction Mr. Rorrer for failing to testify in a way which
    might be contrary to his right against self-incrimination while the
    sentencing portion of his case is still pending. (However, it should be
    noted that at no time at the hearing did Mr. Rorrer attempt to invoke his
    right against self-incrimination.)”
    18.
    See, e.g., Kentucky
    Bar Ass’n v. Tanner,

    152 S.W.3d 875 (Ky.2005)
    (permanent disbarment for attorney convicted
    of embezzlement);
    Kentucky Bar Ass’n v. Layton, 97 S.W.3d 452 (Ky.2003)
    (permanent
    disbarment for attorney convicted of theft by failure to make required
    disposition involving wrongful conversion of funds from attorney’s Master
    Commissioner’s account);
    Caudill v. Kentucky Bar Ass’n, 155 S.W.3d 725 (Ky. 2005)
    (accepting
    attorney’s resignation under terms of permanent disbarment when attorney
    pleaded guilty to embezzlement and theft by failure to make required
    disposition);
    Kentucky Bar Ass’n v. Steiner, 157 S.W.3d 209 (Ky.2005)

    (disbarring attorney who misappropriated client funds for his own use,
    despite attorney’s lack of previous disciplinary history and claim of
    mental illness);
    Dickey v. Kentucky Bar Ass’n, 98 S.W.3d 864 (Ky.2003)
    (approving
    attorney’s motion to withdraw under terms of permanent disbarment when
    attorney had pleaded guilty to conspiracy to commit securities fraud);
    Kentucky Bar Ass’n v. Matthews, 131 S.W.3d 744 (Ky.2004)

    (permanently disbarring attorney convicted of, inter alia,
    conspiracy to defraud a financial institution).
    19.
    See Kentucky State Bar Ass’n v. Vincent, 537 S.W.2d 171, 173
    (Ky.1976)
    (“It is beyond cavil that an attorney who is
    convicted of an offense involving moral turpitude, or who is convicted of
    an intentional and serious misdemeanor, or who is convicted of a felony,
    is guilty of such conduct as is calculated to bring the bench and bar into
    disrepute.
    Respondent was permitted, without limitation, to fully
    indulge himself in the introduction of evidence to support his position in
    his effort to build up and make realistic his claim of extenuating
    circumstances. He is an officer of the court [ (Kentucky
    State Bar Association v. Taylor,

    482 S.W.2d 574 (Ky.1972)
    )], and it is his duty—yes, even more so, it is
    his responsibility—to conduct his personal and professional life in a
    manner as to be above reproach. Is this too much to ask of any attorney? We
    think not. Other than one’s own confidante, no person occupies such close
    relationship to the general public as do the members of the legal
    profession. It is the attorney to whom the intimacies of family relations
    are confided; it is the attorney who is entrusted with advising as to the
    management and disposition of the family estate; it is the attorney who is
    entrusted with the protection of our constitutional and statutory rights.
    Such a burden resting upon the members of the legal profession must not be
    taken lightly.”) (Emphasis added.).
    20.
    Rorrer contends that in the event of disbarment, he is entitled to avail
    himself of the provisions of former SCR 3.520, which governed reinstatement
    in case of disbarment. Rorrer contends that SCR 3.520, which was deleted in
    October 1998, applies to him because his alleged misconduct occurred in
    September 1998, prior to the rule’s deletion. However, the indictment
    charges that Rorrer’s misconduct occurred from September 1998 through July
    1999; and Rorrer has pointed to nothing in the record to conclusively show
    that all of his misconduct occurred prior to SCR 3.520′s deletion.
    Furthermore, the rule was deleted over one year prior to Rorrer’s
    indictment, nearly two years prior to Rorrer’s conviction, nearly five
    years prior to the issuance of the Sixth Circuit’s opinion affirming
    Rorrer’s conviction, approximately six years prior to the issuance of the
    charge against Rorrer by the Inquiry Commission, and over eight years prior
    to the issuance of this opinion and order. Thus, we strongly question
    whether Rorrer is eligible for reinstatement pursuant to the long-deleted
    SCR 3.520. However, we express no definitive answer on this subject as we
    will not offer a hypothetical ruling on an as-yet unfilled hypothetical
    motion.

     

    Should accussed have the right to confront foresenic witnesses?

    Saturday, December 3rd, 2011

    The  Bill of Rights Doesn’t Come Cheap –

     

    By
    JEFFREY L. FISHER

    Palo  Alto, Calif.

    ON  Tuesday, the Supreme Court will hear oral arguments in Williams v. Illinois, the  latest in a string of cases addressing whether the Sixth Amendment’s confrontation clause
    — which gives the accused in a criminal case the right “to be confronted with  the witnesses against him” — applies to forensic analysts who produce reports
    for law enforcement. In other words, should an analyst responsible for, say, a  fingerprint report have to show up at trial to face questions about the report?

    A  logical application of the law produces an easy answer: Yes. The court has  defined a “witness against” a defendant as a person who provides information to  law enforcement to aid a criminal investigation. That is exactly what forensic
    analysts do.

    Subjecting  forensic analysts to cross-examination is also good policy. According to a  recent National Academy of Sciences study,  forensic science is not nearly as reliable as it is perceived to be. DNA
    specimens, for instance, are sometimes contaminated; fingerprint, ballistics and  even run-of-the-mill drug and alcohol analyses depend on human interpretation
    and thus are subject to error. Worse, investigations over the past decade have  revealed outright incompetence and fraud in many crime labs. So it makes sense
    to subject the authors of lab reports to cross-examination — a procedure the  court has called “the greatest legal engine ever invented for the discovery of
    truth.”

    Despite  all this, the Supreme Court has been sharply divided on the issue. In similar  cases in 2009 and earlier this year, in which I represented the defendants,
    Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G.  Breyer and Samuel A. Alito Jr. accepted claims by state governments that, simply
    put, confrontation in this context costs too much. It is far more efficient,  these justices contend, to let analysts simply mail their reports to court.
    Having to appear at trials pulls them away from their labs, and only  occasionally proves more revealing than their written testimony.

    Hence, these  justices maintain, “scarce state resources” are better committed elsewhere.
    Given  that several states have long required forensic analysts to come to court, one  might think that this financial argument would not have gained much traction.
    Justice Antonin Scalia, in fact, called the argument a “bogeyman.” But the four  dissenting justices not only accepted it but deemed it powerful enough to trump
    the commands of constitutional text and precedent.

    The  same battle lines are being drawn again in the case to be heard next week (for  which I have signed a friend-of-the-court brief in support of the defendant). In
    Williams v. Illinois, the defendant contends that he should have been given the  right to confront an analyst in the lab that generated a DNA profile from the
    crime scene. Yet the State of Illinois argues that the extra cost of bringing  that witness into court was unnecessary, because the defendant had an
    opportunity to question a different analyst who compared that profile to the  defendant’s and concluded that it was a match.

    A  friend-of-the-court brief by the Manhattan district attorney’s office pushes the  state’s argument one step further, warning that a ruling in the defendant’s
    favor would prove so costly that it would “force prosecutors to forgo forensic  DNA analysis” in future cases. Consequently, the brief continues, defendants in
    rape and murder cases “might well be prosecuted solely on the basis of  eyewitness testimony,” which is notoriously unreliable and could lead to
    convictions of many “innocent individuals.”

    This  is an outrageous assertion. Nothing in the outcome of the Williams case, which  deals only with the admissibility of evidence, will preclude prosecutors from
    using DNA testing to determine whether they have the right guy. Presumably,  prosecutors concerned about whether they imprison (or, in some states, execute)
    innocent people will continue to do such testing whenever possible, no matter  how much it will cost to enter the results as evidence.

    But  the assertion in the Manhattan district attorney’s brief reflects — in a  particularly dramatic way — some prosecutors’ belief that they can bully the  court into refusing to enforce a constitutional guarantee simply by arguing that
    such enforcement would be an administrative and financial burden.

    There’s  nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and several  other states filed a brief urging the court to refrain from interpreting the  Sixth Amendment’s guarantee of the “assistance of counsel” to require states to  provide lawyers to poor defendants accused of felonies. The brief said such a  rule would impose on states “an unbearably onerous financial burden to pay the  fees of attorneys.”

    The  court, of course, was not moved. States have adapted. And the Gideon case has  become a cornerstone of American jurisprudence. It’s almost impossible now to
    imagine how a trial could be considered fair without that basic procedural  guarantee.

    The  court should follow this lesson in Williams and refuse to be cowed by  prosecutorial bogeymen. It unquestionably costs money to deliver the fundamental
    demands of justice. But the price is not nearly so high as the states usually  claim. And the price of failing to enforce basic procedural rights is, in the
    long run, much higher.

    Jeffrey L.  Fisher is an associate professor of law at Stanford.

    Gloomy Summary of KBA President Margaret Keane’s Report In Louisville Address At CLE Update – Dues to be increased 33% – New

    Thursday, December 1st, 2011

    Dec. 1, 2011

    KBA President Margaret Keane presented gloomy news to the some 2,500 lawyers attending a law update program at the International Convention Center this week.

    She reported that, “There are now 17,000+ lawyers alive in the state”.  “Nationally, there are 100 applicants for every law firm that is wishing to hire a lawyer.
    The unemployment rate for May 2011 graduates from US law schools is 50%.”

    “Still, at UK Law School for this year’s freshman class, there were 17 applicants for each student admitted. Across the state, the ratio was 10:1 when Chase, UofL, and UK
    are all averaged together. ”

    “The KBA annual convention will be June 6-8 at the Galt House.”

    “The KBA has a recommendation pending before the Ky. Sup. Ct. to raise the annual dues from $270 to $350 for lawyers admitted to practice over five years effective Sep. 1, 2012.”  (That is a 33% increase.)

    “The annual dues for lawyers admitted for less than five years will not be increased, and will remain at $220. Dues for judges will be raised from $110 all the way up to the
    new, regular $350. These dues rates are projected to be in place until 2018.”

    Keane said that “72% of all KBA disciplinary matters are brought to a conclusion within 20 days.” President Keane’s statement regarding the
    quick conclusion of 72% of all ethics complaints by the Bar Counsel’s office, did not discuss that most complaints received by the KBA, are crazy letters written
    on cardboard with orange crayon, and which raise no ethical issues and which are summarily rejected.  We suggest that this statistic does not really represent the time frame in which the Bar
    Counsel’s office is handling claims.

    President Keane’s statement forces the conclusion that 28% of the complaints being handled by the Bar Counsel’s office take more than 20 days to resolve.

    She did not reveal how many cases had been pending more than three years, four years, five years, six years or more than seven years.  If you read the monthly decisions of the Ky. Supreme Court you will find numerous KBA
    discipline cases that have taken 5 to 9 years to be completed.   We invite President Keane to release real informative statistics.

    President Keane obviously intended to impress the crowd of some 2,500 lawyers with the impression that the Bar Counsel’s office is an outstanding example of efficiency.  Perhaps it is time for a debate on this
    subject.

    It is time for the KBA Board to demand a complete accounting of how many ethics complaints are filed each year, then show the length of time for each case that  is older than one year.

    The Supreme Court has ruled that any ethics prosecution that takes more than 3 years is “presumptively prejudicial” (The Lococo case.)

    The Bar Counsel’s office has 24 employees, and a budget of $1,600,000 paid by dues to Kentucky’s lawyers.  It has been revealed by LawReader that in
    addition to the budget of $1,600,000 for the Bar Counsel’s office, they have been hiring outside counsel.  We have called for disclosure of the number of cases in which outside counsel have been
    hired during the eight year tenure of Linda Gosnell, how much  they were paid, which law firms were hired, whether or not these outside attorney fees were billed to the attorney under
    investigation under the false guise of a “bill for court and expense”
    costs.

    We would ask the KBA Board what consideration they have given to cutting expenses before they raise Bar Dues by about $1 million dollars. We concede they may have a good answer
    justifying a 33% increase in Bar Dues, but we haven’t seen such an explanation yet.  Have they considered firing some of the nine full time lawyers in the Bar Counsel’s office?  How about the 13 paralegals and legal
    assistants?  Are that many aides really necessary?  How much travel has been paid to the Bar Counsel’s office?  How much has been paid to outside counsel hired by the Bar Counsel?
    President Keane reports that hundred of new lawyers are unemployed, why not replace the Bar Counsel’s office with lower paid lawyers fresh out of law school.  This would be a stepping stone for them, and
    they might do a great job without breaking the bank.  Perhaps such a plan would do away with the need to raise bar dues by $1,000,000.