Archive for April, 2012

KBA BAR NEWS – NUMEROUS STORIES FOR APRIL 6 2012

Friday, April 6th, 2012

go to the KBA site at:

 

http://www.kybar.org/625

Irv Maze, Ruth Ann Cox, Harold Gwyn Wren All Nominated for Vacancy on Ky. Court of Appeals – Gov. Beshear to make this appointment within 60 days.

Wednesday, April 4th, 2012

Supreme Court of Kentucky

Chambers, State Capitol

Frankfort, Kentucky 40601

www.courts.ky.gov

 

Contact: Jamie Neal, Public Information Specialist, Administrative Office of the Courts

502-573-2350, jamieneal@kycourts.net

 

For Immediate Release

 

Judicial Nominating Commission announces nominees for vacant Court of Appeals judgeship

 

FRANKFORT, Ky., April 4, 2012 – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant Court of Appeals judgeship for the 4th Appellate District, Division 1, which consists of Jefferson County. The judicial vacancy was created by the resignation of Judge Thomas B. Wine effective Jan. 6, 2012.

 

The three attorneys named as nominees to fill the vacancy are Irvin G. Maze, Ruth Ann Cox Pence and Harold Gwyn Wren, all of Jefferson County.

 

Maze has served as a Jefferson Circuit Court judge since 2008. He received his juris doctor from the University of Louisville Louis D. Brandeis School of Law.

 

Pence is associated with the firm of Pence & Ogburn in Louisville. She received her juris doctor from the University of Louisville Louis D. Brandeis School of Law.

 

Wren was of counsel for attorney James R. Voyles from 2000-2009. He previously served as dean and professor for the University of Louisville Louis D. Brandeis School of Law. He graduated from Columbia University School of Law and Yale Law School.

 

Judicial Nominating Process

When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission publishes a notice of vacancy in the judicial circuit or the judicial district affected. Attorneys can recommend someone or nominate themselves. The names of the applicants are not released. Once nominations occur, the individuals interested in the position return a questionnaire to the Office of the Chief Justice. Chief Justice Minton then meets with the Judicial Nominating Commission to choose three nominees. Because the Kentucky Constitution requires that three names be submitted to the governor, in some cases the commission submits an attorney’s name even though the attorney did not apply. A letter naming the three nominees is sent to Gov. Steve Beshear for review. The governor has 60 days to appoint a replacement, and his office makes the announcement.

 

Makeup of the Judicial Nominating Commission

The Judicial Nominating Commission is established in the Kentucky Constitution. Ky. Const. § 118; SCR 6.000, et seq. The commission has seven members. The membership is comprised of the chief justice of Kentucky (who also serves as chair), two lawyers elected by all the lawyers in their circuit/district and four Kentucky citizens who are appointed by the governor. The four citizens appointed by the governor must equally represent the two major political parties, so two must be Democrats and two must be Republicans. It is the responsibility of the commission to submit a list of three names to the governor and the governor must appoint a judge from this list of three.

 

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. The AOC supports the activities of nearly 3,300 court system employees and 403 elected justices, judges and circuit court clerks. As the fiscal agent for the state court system, the AOC executes the Judicial Branch budget.

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KENTUCKY SUPREME COURT ANNOUNCES ORAL ARGUMENTS FOR APRIL 18-19

Tuesday, April 3rd, 2012

Supreme Court of Kentucky

 

State Capitol

 

700 Capitol Avenue

 

Frankfort, Kentucky 40601

 

www.courts.ky.gov

 

 

 

Contact: Susan Stokley Clary, Supreme Court Clerk

 

502-564-5444, susanc@kycourts.net

 

 

 

For Immediate Release

 

 

 

Supreme Court of Kentucky to hear arguments April 18-20 in Frankfort

 

Proceedings are open to the public

 

 

 

FRANKFORT, Ky., April 3, 2012 – The Supreme Court of Kentucky will convene Wednesday-Friday, April 18-20, in Frankfort to hear oral arguments in cases that originated in Allen, Fayette and Jefferson counties. The court will also hear Harlan Circuit Court Judge Russell D. Alred’s challenge to the Judicial Conduct Commission’s order that he be removed from the bench for judicial misconduct. Proceedings are open to the public and will take place at 10 a.m. EDT April 18 and at 9, 10 and 11 a.m. EDT April 19-20 in the Supreme Court Courtroom. The courtroom is located on the second floor of the state Capitol at 700 Capitol Ave.

 

 

 

The public may also observe oral arguments via the Supreme Court live stream on the Kentucky Court of Justice website. Oral arguments are available online as they occur in real time and are not available as archives.

 

 

 

The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices (bios) sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.

 

 

 

 

 

WEDNESDAY, APRIL 18, 2012

 

 

 

10 AM

 

 

 

2011-SC-658-DGE

 

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL. V. FELL, ETC., ET AL.

 

 

 

Summary: “KRS 159.070. Challenge to Jefferson County Public School’s student assignment plan.”

 

 

 

Discretionary Review granted 11-30-2011

 

Jefferson Circuit Court, Judge Irvin G. Maze

 

 

 

Attorneys For Movants: Byron Edward Leet, Lisa Catherine Dejaco and Anne Reed Maclean

 

Attorneys For Respondents: Teddy Bernard Gordon, James Bruce Miller, Norma Carter Osborne Miller and Sheila P. Hiestrand

 

 

 

 

 

THURSDAY, APRIL 19, 2012

 

 

 

9 AM

 

 

 

2010-SC-818-DG

 

NORTON HOSPITALS, INC., ETC. V. PEYTON

 

 

 

2010-SC-819-DG

 

NEONATAL INTENSIVE CARE EXPERTS II, PLLC, ET AL. V. PEYTON

 

 

 

Summary: “Statutory Immunity. Negligence. The primary issue is whether a hospital and its employees have statutory immunity under KRS 620.030 and 620.050 where a mother’s blood alcohol level may have been misreported to Child Protective Services.”

 

 

 

Discretionary Review granted 8-17-2011

 

Jefferson Circuit Court, Judge Susan Lynn Schultz

 

 

 

Attorneys for Movant Norton Hospitals: William P. Swain, Joseph M. Effinger and Patricia Colleen Le Meur

 

Attorneys for Movant Neonatal Intensive Care: Beth Hendrickson McMasters and Sara Clark Davis

 

Attorney for Respondent Peyton: Jeremy Jon Nelson

 

 

 

10 AM

 

 

 

2010-SC-415-DG

 

GUZMAN V. COMMONWEALTH OF KENTUCKY

 

 

 

Summary: “Search and Seizure. Issue is the breadth of the ‘protective sweep’ exception to the search warrant requirement.”

 

 

 

Discretionary Review granted 6-8-2011

 

Fayette Circuit Court, Judge Pamela Goodwine

 

 

 

Attorney For Movant: Erin Hoffman Yang

 

Attorney For Respondent: John Paul Varo

 

 

 

11 AM

 

 

 

2011-SC-558-RR

 

RUSSELL D. ALRED, CIRCUIT JUDGE OF THE 26TH JUDICIAL CIRCUIT V. COMMONWEALTH OF KENTUCKY JUDICIAL CONDUCT COMMISSION

 

 

 

Summary: “Judicial Discipline – Removal from office.”

 

 

 

Attorney For Movant: Marcus Stephen Carey

 

Attorneys For Respondent: Jeffrey C. Mando, George F. Rabe, Scott Dennison Majors and Louis Kelly

 

 

 

 

 

FRIDAY, APRIL 20, 2012

 

 

 

9 AM

 

 

 

2011-SC-264-DG

 

WRIGHT V. HOUSE OF IMPORTS, INC., ETC.

 

 

 

Summary: “Premises Liability. Expert Testimony. Unpreserved issue on appeal.”

 

 

 

Discretionary Review granted 9-15-2011

 

Jefferson Circuit Court, Judge Mary M. Shaw

 

 

 

Attorneys For Movant: Kevin Crosby Burke and Damon Blake Willis

 

Attorney For Respondent: Joseph D. Raine Jr.

 

 

 

10 AM

 

 

 

2010-SC-426-DG

 

ABEL, ET AL., V. AUSTIN, ET AL.

 

 

 

Summary: “Legal Malpractice. Statute of Limitations. Choice of Laws. Summary Judgment. This case involves alleged malpractice by attorneys involved in Fen-Phen litigation. The issues include whether the Alabama or Kentucky statute of limitations applies, whether the claims are legal malpractice or fraud and whether the trial court properly granted summary judgment against all plaintiffs.”

 

 

 

Discretionary Review granted 10-19-2011

 

Fayette Circuit Court, Judge Pamela Goodwine

 

 

 

Attorneys For Movants: William C. Rambicure, Angela Margaret Ford and Trevor Wayne Wells

 

Attorneys For Respondent: Perry Mack Bentley, Lucy Anne Pett, Carl Norman Frazier, Melissa Subit, Matthew John Bakota, Jeffrey R. Teeters and David Clyde Trimble

 

 

 

11 AM

 

 

 

2010-SC-678-DG

 

SAWYERS, ET AL. V. BELLER, ET AL.

 

 

 

Summary: “Restrictions on the use and maintenance of an easement.”

 

 

 

Discretionary Review granted 10-20-2011

 

Allen Circuit Court, Judge Janet Crocker

 

 

 

Attorney For Movants: James T. Kelley

 

Attorney For Respondents: Steven Owen Thornton

 

Reprint: Retired Judge Stan Billingsley and former Legislator Larry Forgy Call on KBA And Supreme Court to Appoint Independent Investigator – NO RESPONSE TO THIS REQUEST HAS BEEN GIVEN

Tuesday, April 3rd, 2012

Reprint: Retired Judge Stan Billingsley and former Legislator Larry Forgy Call on KBA And Supreme Court to Appoint Independent Investigator

 

The Following Letter Was Mailed To The Kentucky Supreme Court And The KBA Board Of Governors In Nov. Of 2011 Court From Retired Judge Stan Billingsley and Former Legislator Larry Forgy. No response has ever been given.

RE: CALL FOR AN OUTSIDE INVESTIGATION OF THE BAR COUNSEL’S OFFICE AND SUGGESTIONS FOR RULES CHANGES IN THE ATTORNEY DISCIPLINE PROCESS

Date: Nov. 29, 2011

The events of the last two weeks, which ended in the KBA Board of Governors firing Bar Counsel Linda Gosnell, raises numerous issues of great concern to the 16,700 attorneys whose dues pay for the operation of the Kentucky Bar Association.

As members of the Kentucky Bar Association we can only speak for ourselves. Nevertheless, we believe that many lawyers across the Commonwealth are deeply troubled by the mounting allegations concerning the conduct of the Bar Counsel’s Office since 2003.

We recognize and praise the recent action of the Kentucky Supreme Court in amending SCR 3.370(8) to repeal the right of the Bar Counsel to impose cost bills on an attorney as a precondition of the attorneys right to appeal ethics charges to the Supreme Court.

We recognize and praise the Board of Governors of the Ky. Bar Association for summarily discharging Linda Gosnell. We are troubled however by the fact that the President of the Bar Association has not disclosed the reason(s) that Linda Gosnell was discharged. Why is the Bar President being secretive on this issue? This does not build confidence.

We have received reports from several sources of the existence of the so-called “Houlihan Report”. It is reported that in 2010 the KBA itself appointed an outside investigator, Robert Houlihan, to investigate the operation of the KBA regarding their conduct in acting on claims against a KBA officer. This report is said to be highly critical of the conduct of the KBA. This report has been suppressed by the KBA. This suppression of a report by the KBA’s own outside investigator suggests that the KBA should not have a part in the selection of the outside investigator requested by this letter. Further, the full and complete “Houlihan Report” should be released to the public.

We respectfully request that the Board of Governors review all of the allegations relating to alleged abuses of the Bar Counsel’s Office, and by fully and completely disclosing the facts known or discovered by the KBA, which may have influenced the discharge of Linda Gosnell or which disclose other wrongs of the KBA or Bar Counsel’s office.

The Board of Governors cannot protect the reputation of the KBA by failing to fully disclose the facts behind the discharge of the Bar Counsel. It is not in the best interest of the KBA ,or

the Board of Governors, for the Board to hide behind a claim of “confidentiality”.

The public has the right to have the problems associated with the structure and operation of the Bar Counsel’s office closely examined. Merely firing one person does not put to rest claims of other alleged wrongs, and does not correct the structure which may have allowed other wrongs to occur. The actions of the Board of Governors are encouraging, but as we see it, the work on their desk has not been finished. It is hoped that the KBA does not fall into the trap of institutional self-protection that hides embarrassing deeds. This defensive posture always fails.

We believe the interest of the Board of Governors would be best served by their hiring a totally fulltime in-house legal advisor who reports only to the Board. This appointment would be separate from the outside independent investigator this letter requests to review the conduct of the Bar Counsel’s office.

The in-house legal advisor to the Board, should be free to monitor the conduct of the Bar Counsel’s office. This legal advisor to the Board of Governors should be totally independent of the Bar Counsel’s office. An existing rule, SCR 3.155, authorizes this action by the Board.

The Trial Commissioner’s assigned in ethics prosecutions should be able to call on the Legal Counsel for legal advice. Attorneys who allege abuse of their rights by the Bar Counsel’s office, should be able to present their claims to this in-house Legal Advisor.

No longer should the Board of Governors, when acting in a judicial function when hearing ethics appeals, be advised by the Chief Ethics Prosecutor. No longer should the Trial Commissioners

assigned to conduct hearings of ethics complaints be advised by the Bar Counsel’s office. It should be clearly established by a new SCR that any ex parte communications between the Bar Counsel’s office and the Trial Commissioner or Board of Governors should be prohibited, and any violations immediately shared with the defendant attorney and reported to the Judicial Conduct Commission.

The Supreme Court Rules which forbid prosecutors from assisting or encouraging a judicial officer to violate the Judicial Code of Conduct, particularly those forbidding Ex Parte communications, should be strictly enforced. See: SCR 3.130(8.4) . It is our opinion that all KBA Trial Commissioners are subject to the Judicial Conduct Code. If a Trial Commissioner violates the JCC, they should be reported to the JCC.

There are several steps which should in our opinion be taken to assure the 16,700 members of the Ky. Bar Association, and the public, that the Board of Governors is diligently seeking to fully inform itself as to the growing list of allegations which are being discussed in the legal community in Kentucky. The public wants to be reassured that the Board intends to fix any problems which may have allowed an abuse of attorneys rights by the Bar Counsel’s office.

REQUESTED ACTIONS OF THE BOARD OF GOVERNORS

1. The Board of Governors should immediately make a full and complete report of all their reasons for discharging Linda Gosnell as Bar Counsel. Any knowledge they may have regarding

wrongdoing or suspected wrongdoing by Linda Gosnell or the Bar Counsel’s office, should be disclosed. Also the KBA should immediately release the complete “Houlihan Report.”

2. The Kentucky Supreme Court should appoint an outside independent investigator (with the assistance of the Attorney General) to fully investigate the many allegations concerning the past operation of the Bar Counsel’s Office. This outside investigator should have access to all records of the Bar Counsel’s Office. It would be prudent for the Board of Governors to request that the Supreme Court appoint this independent investigator. This would assure the public that the Board of Governors’ is committed to cooperate fully in the investigation.

 

The main issues that should be reviewed by the independent investigator include:

a. Disclosure of all instances where the Bar Counsel included attorney fees as part of the “cost and expense” bills imposed on attorneys convicted by the Board of Governors. This investigation should identify the outside lawyers hired by the Bar Counsel, the amount of all outside legal fees charged, and should seek a proper accounting of the basis for each legal fee imposed on attorneys.

If any attorneys were improperly charged for attorney fees by the Bar Counsel’s office, those fees should be refunded to the attorney’s that paid them.

If the rights of any attorney to file an appeal were infringed upon, due to the improper demand by the Bar Counsel that inappropriate “costs” were required to be paid in advance of the attorneys right to appeal to the Supreme Court, or due to denial of due process rights, then this information should be revealed to the offended attorney, and he/she should be allowed to receive a hearing to determine if his/her due process rights were violated.

b. The investigation should examine the relationship of Linda Gosnell to anyone who may have improperly benefited financially from the Bar Counsel’s selection of outside counsel.

c. The investigation should review the Accounting of Angela Ford sought by the U.S. Attorney’s Office. This report is now in the possession of the U.S. Attorney’s office.

This accounting should be made public. In particular the names, dates, and amounts of any payment made by Angela Ford to any other attorney should be made public.

The investigation should study any efforts by the Bar Counsel’s office to inform themselves about handling of the escrowed funds seized by Angela Ford, and determine the legal authorization for Ford to have distributed any of said funds in the absence of a final judgment.

In 2009 Angela Ford was interviewed by the Courier Journal, and she stated she had been paid “$7,500,000″ due to the summary judgment she obtained in the Abbott v. Gallion case in Boone Circuit Court. In that news story she is quoted as saying that some of that money went to “other attorneys.” Who are those “other attorneys” cited by Angela Ford? The investigator should take the advice of Deep Throat in the Watergate scandal who said, “Follow the money.”

The investigation should examine the handling of funds seized from the Kentucky Fund for Healthy Living. The Boone Circuit Court ordered that the Trust should be dissolved. The funds in the Charitable Trust were seized by Ford, and at the time of the 2009 news story in the Courier Journal, this $23,000,000 seized from the Charitable Trust were the only funds in her possession.

Ford reportedly made a distribution of those trust funds to her clients (some 300 of the 440 Fen Phen plaintiffs), and it is possible that many Fen Phen plaintiffs not represented by Ford were not included in this distribution. She paid herself, “and other attorneys”, $7,500,000 out of the funds seized from the Charitable Trust. (See the Courier Journal article of 2009 written by Andrew Wolfson.)

Pleadings filed by the U.S. Attorney seeking an accounting of Angela Ford, and newspaper reports, suggests that to date Ford has been paid in excess of $13,000,000 out of the funds she seized. We cannot ignore that there is no final judgment upon which Ford may justify any disbursement to her clients or to herself.

 

There is a possibility that the civil case awarding Ford’s clients $43,000,000 could still be retried and there is a chance that a jury might rule against Ford’s clients, and then the court will be presented with the problem of trying to recover the $43 million handled by Ford, but which has been distributed to the four corners of the world. That is why proper legal procedure mandates that seized funds not be distributed until the judgment is final. This is known as “the finality rule”.

The issue that should be reviewed by the outside investigator is, what has the Bar Counsel’s office done to protect these funds? Did the Bar Counsel’s office know about and ignore the disbursement of $43 million dollars? If an improper disbursement has occurred , the public is entitled to known why has the Bar Counsel failed to timely protect these funds?

The Accounting ordered by Federal Judge Reeves, will answer some of these question. Since at least December of 2010 the U.S. Attorney’s office was taken positive steps to protect the interests of clients who had claims. The U.S. Attorney’s office filed a motion in Jessamine Circuit Court in 2010 to set aside the judicial sale of Bill Gallion’s home in which Ford is alleged by the U.S. Attorneys office to have spent funds from clients escrow accounts to fund the purchase of the Gallion home. The U.S. Attorney pleadings alleged that Ford did not represent all of the Fen Phen plaintiffs, that she was holding funds for their interest, but that she used

these escrow funds belonging to clients she did not represent. The Jessamine Circuit Court set aside that sale.

Where was the Bar Counsel’s office when the U.S. Attorney intervened to protect escrowed funds? The U.S Attorney later sought an accounting from Ford, and Federal District Judge Reeves ordered the accounting.

Ford appealed to the 6th. Circuit to stay or prevent the accounting but the 6th. Circuit denied her motion. Again the investigation should review why the Bar Counsel’s office was absent from the efforts to protect clients funds held by Ford.

Were the rights of the Fen Phen plaintiffs who were not represented by Angela Ford, but who were members of the class, violated when they did not share in that distribution? What did the Bar Counsel know about this allegation, and what action did they take? What did the Bar Counsel know about a distribution of any funds which were based only on the reversed ruling of the Boone Circuit Court?

Further, the investigation should examine why the attorney for the Charitable Trust was informed by the trial court that his future legal fees for his defense of the Charitable Trust would not be paid, thus denying an appeal regarding dissolution of the Charitable Trust. Why was a formally registered Trust denied the right to defend itself by the filling of an appeal?

The Kentucky Court of Appeals in Case NO. 2007-CA-001971-MR, dated February 4, 2011, reversed the ruling of the Boone Circuit Court granting judgment to Ford’s clients. This

reversal and remand for a new trial ruling by the Court of Appeals, reversed the entire award of $43 million (which included $23 million in the Kentucky Fund for Healthy Living). That matter is on appeal to the Kentucky Supreme Court.

d. The investigation should seek to explain the long history of dilatory actions of the Bar Counsel’s Office in many cases, in not promptly investigating and concluding ethics prosecutions. Many ethics cases have been open for years, in some cases as long as eight or nine years. In particular, the investigation should review any financial links between persons associated with the ethics prosecution procedures and Angela Ford. These lengthy investigations have placed a great emotional and financial hardship on some, and is believed by some to have been used as a ploy to protect others. We note that in Kentucky and Federal criminal prosecutions , any delay of a year or more is “presumptively prejudicial” to the defendant.

 

e. The investigation should examine allegations that Linda Gosnell threatened opposing legal counsel with ethics sanctions if they proceeded with their legal arguments in defense of their client. It is reported that in several instances the Bar Counsel’s office began investigations against attorneys who representing clients she was prosecuting. This surely worked a chilling effect on the ability of lawyers to represent their clients. Was there any basis for these ethics investigations and threats of investigations other than an attempt to intimidate trial counsel?

f. The investigation should examine allegations that Gosnell may have violated the Rules of Professional Courtesy by being hostile and disrespectful of witnesses called in the behalf of a defendant.

g. The investigation should examine claims of favoritism by the Bar Counsel’s office in favor of past officers of the KBA.

h. The investigation should determine if the rules regarding procedures for the selection of Board of Inquiry members and Trial Commissioner’s, were conducted in a manner other than random selection. The investigator should ask whether or not the powers of the Kentucky Supreme Court were infringed upon by the Bar Counsel’s interference with the selection of Trial Commissioners and Board of Inquiry members. One allegation claims that when the name of one Trial Commissioner was submitted to hear a pending case, that the Bar Counsel “vetoed” this appointment and explained that he was not qualified to deal with “such complex issues”. The Supreme Court had approved this name. What rule allows the prosecutor to select the judge?

i. The Board of Governors should disclose information about all instances since 2003 where they may have authorized the hiring of outside counsel to assist the Bar Counsel. The Rules clearly permit the Board to hire outside counsel, but the members of the Bar should be informed why outside counsel are being hired, how much has been paid to outside counsel, particularly when the Bar Counsel’s office already employs nine full time lawyers?

j. The investigator should review any potential expenditure of KBA funds made without the express authorization of the Board of Governors. Supreme Court Rules require that all expenditure of KBA funds be in compliance with the budget authorized by the Supreme Court. Did the Supreme Court authorize in their budget approval, the payment of large fees to outside counsel hired by the Bar Counsel?

k. The investigator should examine claims of favoritism in the appointment of outside counsel. The investigation of the actual work done by outside counsel should be studied. Was the assigned work of outside counsel actually done? Were the outside legal fees fairly earned?

l. The investigator should examine whether outside counsel hired by the Bar Counsel, were properly assigned to do work in cases within the jurisdiction of the Bar Counsel’s office, and whether or not their legal work was properly billed to the case they worked on, and whether some outside counsel fees billed to defendant attorneys for work done in other cases?

m. The investigation should evaluate the use of “confidentiality” and secrecy procedures of the Bar Counsel’s Office. Were such rules properly followed? Are such rules in the best interest

of the Kentucky Bar Association?

Did the Bar Counsel’s office use threats of investigations and the filing of ethics charges in cases, in an attempt to coerce action in other cases? Has the Bar Counsel’s office filed charges against attorneys who chose not to agree to a lesser charge and asserted their right to offer a defense?

Has the Bar Counsel improperly filed ethics charges solely for the purpose of denying readmission of attorneys who have served their period of suspension from the practice of law?

n. The investigator should examine the handling of all files and records of the Bar Counsel’s Office to assure that none of these files are missing. The investigation should review the length of time that Bar Counsel investigations were conducted and to determine if there were any violations of the Supreme Court’s “promptness” rule. See: SCR 3.180 Investigations and trials to be prompt. Investigations and prosecutions that take eight years are not “prompt.”

o. The investigator should review whether or not Bar appointments have been excessively given to lawyers affiliated with large defense law firms. Have personal injury lawyers and small

firm lawyers been unfairly subjected to ethics prosecution, while violations by large civil defense firms and prosecutors been ignored by the Bar Counsel’s office?

p. The investigation should determine whether or not the Board of Governors authorized the hiring of outside counsel in the John M. Berry Jr. case, which has placed the KBA in jeopardy of a federal award under the Civil Rights Act Section 1983, in the form of a sanction for attorney fees.

The ACLU, who is representing Berry, is almost certainly seeking an award of attorney fees as authorized by the Federal Civil Rights Act. The investigator should review whether or not

the Bar Counsel acted appropriately in committing the assets of the KBA to the defense of an investigation which failed to be supported by a finding of the Inquiry Commission. The investigator should advise the Board as to whether or not this first amendment case could have been dismissed with an apology by the Bar Counsel. The Investigation should look closely for any possible instances of the inappropriate use of Bar assets.

q. The investigation should study the recommendations of the American Bar Association Center for Professional Responsibility on how state bar associations should “build walls” between the Ethics Prosecutors and the Trial Commissioners and Board of Governors when acting in their judicial capacity. The vast majority of states have an independent Board of Ethics Commissioners to review the conduct of the ethics prosecutors. The investigation should examine the possibility that an ethics discipline structure similar to Ohio’s might provide a template for Kentucky to follow. The KBA could well serve the Bar by requesting that the Supreme Court consider reforms to allow the imposition of checks and balances in the ethics process in Kentucky.

3. Once the outside independent investigator has completed, his/her report, it should be disclosed to the Board of Governors, the Kentucky Supreme Court, to the public, posted on the KBA web site, and delivered to the U.S. Attorney’s Office and the Franklin County Commonwealth Attorney.

RULES CHANGES THAT SHOULD BE CONSIDERED BY THE SUPREME COURT

We respectfully request that the Kentucky Supreme Court review the entire ethics prosecution mechanism. The recent amendment of SCR 3.370(6) and (8) demonstrates that the Kentucky Supreme Court is capable of quickly amending rules when they discover the existing rule is inappropriate or flawed in its application.

The Court should begin their review of the current ethics rules with an examination of ”SCR 3.505 Character and Fitness Committee; reinstatements” which was last amended in 2004 . The rule as currently written allows the Bar Counsel to ignore the sanction imposed by the Supreme Court by objecting to an attorneys reinstatement after they have served the period of suspension ordered by the Supreme Court.

 

This rule allows the Bar Counsel to add at least four months to any period of suspension from the practice of law, since all suspended lawyers must apply for reinstatement, and if the Bar Counsel objects to the reinstatement, a review process and final ruling can take 120 days. This rule means that if the Supreme Court orders a 30 or 60 day suspension, the Bar Counsel may override the judgment of the Supreme Court and add at least an additional four months of suspension.

Further this rule, at Section (4), places the burden of proof on the attorney seeking reinstatement. “Section(4) The burden of proof of one’s good character and fitness to practice law shall be on the Applicant. “

Supreme Court members in 2004 have in effect delegated the final authority over the sanctioning of lawyers to the discretion of the Bar Counsel, even in cases where the period of suspension adjudged by the Supreme Court was less than 180 days. In criminal law the prosecutor is not allowed to increase the penalty of the trial court.

We would request that the Supreme Court review the changes in the 1990 version of the Supreme Court ethics rules, which reduced the standard of proof required to sanction an attorney from the previous “clear and convincing’ evidence standard, to a “preponderance of the evidence” standard. The attorney discipline process has been described in an appellate decision as being “quasi-criminal” in nature. The “beyond a reasonable doubt” evidence standard which applies to criminal cases is not applied in attorney discipline matters. Instead the civil standard of “a preponderance of the evidence” is applied in ethics prosecutions of lawyers. Other states require that the standard of proof must be “clear and convincing”. While the burden of proof is placed on the Bar Counsel, in the reinstatement application process, the burden of proof is shifted to the defendant attorney. We know of no other state that gives more power to the ethics prosecutor than does Kentucky. We note that in prison inmate prosecutions for violation of prison discipline rules, the standard of proof is “some evidence”. If appears that this “some evidence” rule is sufficient to sanction a Kentucky lawyer. Many times the Trial Commissioner is presented with “he said /she said” factual situations, and most of the time the lawyer loses.

The court should examine rules of confidentiality that are interpreted by the Bar Counsel to deny access to information by the public and to refuse discovery requests of defendant lawyers.

When a lawyer’s conduct places the risk of great financial harm to his clients, public disclosure of allegations would be in the public’s interest. The confidentiality rules should not be

applied to keep potential victims of a lawyers conduct in the dark. When there is a chance that public disclosure of pending ethics charges would prevent harm to clients, the Bar should make the protection of the client the primary consideration. We note that Great Britain and New Zealand have taken the attorney discipline process away from their Bar Associations and

placed said duties in a Consumer Protection Office. The entire ethics process should be focused first on the protection of the consumers of legal services.

The Supreme Court should review suggestions by the ABA Center for Professional Responsibility to “build walls” between the judicial body and the prosecutorial officials in ethics prosecution cases. (We have read one report where the State of Montana concluded that it was necessary to totally remove the ethics prosecution office from the same building in which the Bar administrators were housed, in order to limit the appearance of ex parte communications.)

If any review of the current rules regarding the discipline of attorneys is conducted, it should consider that attorneys should not be sanctioned for merely defending themselves. Attorneys should not be threatened with ethics prosecutions by the Bar Counsel, for arguments they made in court. The Supreme Court rule which grants “absolute immunity” to the Bar Counsel’s office, if amended to provide the same level of immunity granted to criminal prosecutors, i.e. “qualified immunity,” would better serve the interests of justice. The “qualified immunity” burden is no higher a burden than the burden currently placed upon the shoulders of criminal prosecutors.

It would be in the best interest of the Bar and the public, if the Supreme Court would clarify the rules to recognize that any attorney has the right to seek review of his/her claims of constitutional rights violations by the Bar Counsel by filing their claims in Federal Court. It would be in the best interest of the Bar for every attorney to have the right to pursue all remedies in behalf of his defense, without fear of retaliation. Surely, defending one’s self is not an ethical violation.

The interest of justice would be well served if the Supreme Court rules allowed Civil Rule 11 sanctions to be imposed against the KBA, when their employee the Bar Counsel, violates the Supreme Court Rules or the Civil Rules by bringing frivolous charges or by conducting improper investigations of lawyers.

The Supreme Court should examine the rules with consideration that the rules which express the levels of punishments that can be applied to a convicted attorney, should be weighted, in such a way that a minor procedural error by a lawyer would not result in the death penalty of permanent disbarment. The classification of criminal laws allows a range of penalties for “felonies, misdemeanors and violations,” but the current Supreme Court Rule allows the maximum penalty to be imposed for the most minor offense. Such a classification of penalties exists in criminal cases, and the interest of justice, would be better served if a classification system was applied to discipline sanctions.

The Supreme Court should consider a mechanism where all complaints against the Bar Counsel should be heard by a body independent of the Bar Counsel’s office. (Other states have such a procedure to assure fairness in dealing with claims of misdeeds by ethics prosecutors.)

CONCLUSION

We make no suggestions or allegations that the Board of Governors has violated any rule or law. We know of no such violations of duty by the Board of Governors. Their action in decisively dealing with the Bar Counsel, strongly suggests their desire to right any wrongs which may have emanated from the Bar Counsel’s Office.

Having said that, we believe it would be in the best interest of the Board of Governors to rebuild the confidence of the 17,000 members of the Kentucky Bar Association, by authorizing an independent investigation of the Bar Counsel’s office.

We do not accuse anyone mentioned in this letter of any criminal action, or of any lack of integrity or qualifications for their office. We accuse no one of a rules violation. Those conclusions can only be made after a full and complete investigation and after the due process rights or those involved are provided.

We have discussed numerous allegations which have been shared with us by members of the legal profession. We only suggest that these allegations be investigated. Only a court can formally prove the truth of falsity of these allegations. We note that the Kentucky Supreme Court Rule 3.130 (8.2) has been interpreted to limit the right of an attorney from speaking truthfully about the conduct of “judicial officers”, and “public legal officers”. This prohibition of first amendment rights of attorneys has allowed some officials to be protected from public examination of their actions. (Rule 3.130 (8.2) as interpreted by the Bar Counsel is currently on review before the 6th. Circuit Court of Appeals.)

No appointment of a new Bar Counsel should be made until this investigation is published. The independent investigator should ask all of the 24 (now 23) employees of the Bar Counsel’s office, “What did you know about possible abuses of attorneys rights, and when did you know it.”

The investigation should also invite the former Deputy Bar Counsel, who in 2011 resigned, to report the reasons he had for resigning from the Bar Counsel’s office. His insight might be enlightening. We currently have an attorney discipline process that virtually requires an attorney to have a stable of lawyers with him at all times, just to guide him through the maze of vague ethics rules that have been allowed to be applied, or ignored, at the discretion of the Bar Counsel’s office.

Instead of focusing upon retraining and education of lawyers on how to comply with ethics rules, the Bar Counsel’s office has focused on harsh punishments and disbarment.

The concept of lawyers being able to seek out ethics guidance by submitting questions to the KBA is a meaningless process, since most ethics opinions issued by the KBA are not binding on the Bar Counsel’s office.

Therefore there is no real guidance and direction regarding ethics guidelines provided to members of the Bar. Attorneys who have sought and obtained ethics opinions from the Bar Association, have relied on those opinions, and yet have been investigated and sanctioned for relying on such advice.

More than a few members of the Bar who have been involved in practicing before the KBA in defense of lawyers charged with ethics violations, believe that the Bar Counsel’s office has conducted a rein of terror against the legal profession. It is time that sanctions be brought into line with the seriousness of the offense, and the rights provided to defendants in our trial courts should be applied to attorney discipline hearings.

 

Lord Action (1834-1902), is famously quoted in a letter to Bishop Creighton in l887: “Power tends to corrupt, and absolute power corrupts absolutely.” We would paraphrase Lord Action and suggest that “absolute immunity of a public official, corrupts him absolutely.”

Respectfully submitted,

/s/

Judge Stan Billingsley (Ret.)

314 7th. St. Carrollton, Ky. 41008

/s/

Hon. Lawrence Forgy

Frankfort, Kentucky

FOOTNOTE:   As a result of the failure of the Kentucky Supreme Court and the KBA Board of Governors to respond to the Billingsley/Forgy request, Billingsley has commenced writing a book about this issue.  The title of the book is “A Parliament of Owls.”  This  novel will describe what an investigation of the fictional Ministry of Ethics might look like.  The book should be published this summer.