Archive for January, 2012

COURT OF APPEALS RELEASES RECORD LOW NUMBER OF OPINIONS IN 2010

Thursday, January 5th, 2012

Recent statistics about the cases decided by the Ky. Ct. of Appeals reveal a record low number of opinions rendered during 2011. In 2011 the Court delivered 1,172 opinions. In2010 it was 1,213, and for 2009 it was 1,451.

Before 2009 we find no report with less than 1500 decisions. In prior years the number of opinions ran from 1800 to 2100 a year.

We don’t know what this reduction in opinions reveals. It may be that less cases are being appealed. It was reported to LawReader several years ago that the Supreme Court had “requested” that less opinions by the Court of appeals be formerly published, and other reports suggest that Ct. of Appeals judges were “requested” by the Supreme Court to reduce the number of pages in their opinions.

Our review of every Ct. of Appeals opinion in the last two years, reveals that while there have been some reduction in the average number of pages per opinion, that every week there are several decisions that are in excess of l5 pages.

Anyone having any information on the reduction in the number of opinions are invited to share their thoughts with LawReader at : Firstjudge@aol.com.

 

Message from former Bar Counsel Cary Howard, Jr. disagreeing with LawReader Articles

Wednesday, January 4th, 2012

The following letter is not edited by LawReader.  We welcome responses to anything we publish.

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

I am pleased that you have agreed to post my response without editing.  Having  worked in the KBA Office of Bar Counsel for
seven years, I am aware of the true  facts that underly many of the topics about which you speculate quite often.

I  left that office last year and opened my own practice so I am now allowed to reply to such commentary if I wish.  While I have no intention of debating all  of the sundry allegations that you have published
about the KBA and Ms. Gosnell and related matters, I assure your readers that very little of the anonymously sourced claims that you have published here have
any basis in actual fact to the best of my knowledge.  However, several of your suggestions for procedural and structural changes in the disciplinary process are valid in my
opinion.

The reason that I respond is that I know Sarah Coker and have worked with her professionally and can
absolutely assure you that she has always conducted herself appropriately and ethically.  There is simply no reason
to continue publishing baseless, unsubstantiated criticisms of someone who is simply doing  her job.

There are many things that I would change about the Office of Bar Counsel if I were running the
place.  One of the things that most certainly would not change would be Sarah Coker.  Unless she had simply become exhausted with
the job and I could not convince her to stay.

Cary Howard, Jr.

(Former Deputy Bar Counsel)

 

Ostrich-like Attorney Reprimanded – Article by Todd McMurtry

Wednesday, January 4th, 2012

 

 

By Todd McMurtry | tmcmurtry@dbllaw.com

Leading jurist and legal scholar Richard Posner, of the United States Court of Appeals for the Seventh Circuit,
is known for his writings on law and economics. He can also be a harsh critic of attorneys. In Monica del
Carmen Gonzalez-Servin vs. Ford Motor Company, No. 11-1665 (7th Cir. 2011)
, Judge Posner authored a stinging critique of an attorney
who failed to address dispositive precedent in his client’s appeal brief.

Citing Mannheim Video, Inc. v. County of Cook, 884 F.2nd 1043, 1047 (7th Cir. 1987),
Judge Posner stated that the “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not
exist is as unprofessional as it is pointless.” He went on to identify offending counsel by name and found him “especially culpable” because he failed
not only to cite the dispositive authority in his initial brief, but then did not address it in his reply brief after appellee’s counsel discussed it at
length in his response brief. Posner stated that “when there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing
or reserve a challenge to it for a petition for certiorari but may not simply ignore it.”

Adding salt to the wound, Judge Posner included photos of an ostrich and an attorney, each with its head buried
in the sand. While Judge Posner deftly addresses the issue through humor, the reader should come away from this case with renewed appreciation of counsel’s
duty to show candor to the tribunal. Kentucky Civil Rule 11 is clear on thispoint. When an attorney signs a motion, he certifies that to “the best of his
knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for
the extension, modification or reversal of exiting law, . . .”

The Rules of the Kentucky Supreme Court governing the practice of law in Kentucky also address this issue. SCR
3.130(3.3)(a)(2) dictates that “a lawyer shall not knowingly fail to disclose to the tribunal published legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” In the commentary accompanying this rule, the
Court states that “legal argument based on a knowingly false representation of law constitutes dishonesty to the tribunal.”

Clearly, the system of justice is well-served when counsel shows an unrelenting candor to the court and opposing
counsel. The centrality of this point was hammered home by Judge Posner.

Todd McMurtry is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

Subscribe to the DBL Civil Litigation blog.

 

KBA BOARD OF GOVERNOR’S – SEARCH ON FOR NEW BAR COUNSEL – COMMITTEE REWRITING JOB DESCRIPTION OF BAR COUNSEL, ELECTION NEWS

Wednesday, January 4th, 2012

A source close to the KBA has reported to LawReader that a committee has been appointed by the Board of Governors to write a new job description for the KBA Bar Counsel, and to consider the employment of  separate legal counsel to advise the Board of governors.   The Board of Governor’s will possibly consider these recommendations in their next meeting on Jan. 15, 2012.
Under current Supreme Court Rules the Bar Counsel (chief ethics prosecutor) is the legal advisor of the Board of Governors.
This is considered by many to be a conflict since the prosecutor gives legal advice to the Board who acts in a judicial function when they hear
attorney discipline cases.  It has been suggested by LawReader that the new Legal Advisor to the Board of Governors
should serve as an Ombudsman to monitor the actions of the Bar Counsel’s office.

It was also reported that an active search is under way for a new Bar Counsel to fill the vacancy created by the firing of Linda Gosnell.

It has been 45 days since the Bar Counsel was discharged, and the KBA has not announced the reason for the firing of Linda Gosnell. Perhaps the Board will explain to the members of the Bar on Jan. 15th. why they fired Gosnell.??

The results for the election for Vice-President of the KBA will be announced at the next meeting of the Board of Governor’s meeting on Jan. 15, 2012.
William Johnson of Frankfort is running against  William Wilhoit of Grayson, Kentucky.

Lawyer critisizes tone of KBA Cle re: Attorney Discipline – KBA invited to respond

Wednesday, January 4th, 2012

Last June the KBA CLE class featured a tutorial on procedures in the attorney discipline process.   Deputy Bar Counsel Sarah Coker
was one of the presenters.

A LawReader reader forwarded their comments to us about the message presented in the CLE program.

“My initial interpretation of Sarah Coker’s talk was:
1. We, the KBA, sit at the right hand of God. We are your judge and jury.

2. Play it smart and don’t ignore us or we will screw with your life in epic proportions at will.

3. As you interpret the law in your practice, so shall we turn a blind eye and spin the facts to benefit the continued benevolence of our supreme power.

4. So what if you don’t believe the KBA rules by committee, rules of procedure, or facts? It looks good and that’s all that matters.”

LawReader has seen Ms. Coker in action, and she is a very nice young lady and appears to be a knowlegable lawyer.    She could probably advance her legal career by experiencing more of real legal practice by leaving the sheltered confines of the Bar Counsel’s Office.
LawReader has received a number of comments from Ky. lawyers who agree with this opinion sent in by a LawReader visitor about the Bar Counsel’s office.

We invite any member of the KBA or the Bar Counsel’s office to publish without editing their response on Lawreader.  Just forward to firstjudge@aol.com.

LEGISLATURE ADOPTS NEW CRIMINAL SENTENCING POLICY

Wednesday, January 4th, 2012

KRS 532.007 Commonwealth’s sentencing policy.

It is the sentencing policy of the Commonwealth of Kentucky that:

(1) The primary objective of sentencing shall be to maintain public safety and hold offenders accountable
while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced;

(2) Reduction of recidivism and criminal behavior is a key measure of the performance of the criminal justice
system;
(3) Sentencing judges shall consider:

(a) Beginning July 1, 2013, the results of a defendant’s risk and needs assessment included in the
presentence investigation; and

(b) The likely impact of a potential sentence on the reduction of the defendant’s potential future criminal
behavior;

(4) All supervision and treatment programs provided for defendants shall utilize evidence-based practices to
reduce the likelihood of future criminal behavior; and

(5) All supervision and treatment programs shall be evaluated at regular intervals to measure and ensure
reduction of criminal behavior by defendants in the criminal justice system.

Effective: June 8, 2011

History: Created 2011 Ky. Acts ch. 2, sec. 1, effective June 8, 2011.