Archive for May, 2012

Estates, Wills & Trusts Attorney Job Posting

Thursday, May 31st, 2012

Kinkead &  Stilz, PLLC, a medium size Law Firm with an established tax and estate practice
located in Lexington, KY is seeking a candidate with 2-5 years’ experience in
Estate Planning/Wills & Trusts. Email resume to Dawn Reynolds;





Julie L. Jones


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

F:  (859)

Corporations Beware Veil Piercing And Loss of Limited Liability Protection

Thursday, May 31st, 2012


By David Kramer |


In two opinions rendered on February 23, 2012, the Kentucky Supreme Court highlighted the considerations that Kentucky courts are to apply in deciding whether to pierce the corporate veil of corporate defendants in order to permit their parent corporations or even their individual shareholders to be held liable for debts of or claims against the corporation.

The phrase “piercing the corporate veil” (also sometimes referred to as “lifting the corporate veil”) is a legal term for the equitable remedy plaintiffs sometimes seek against business entities that have corporate charters. Typically such cases involve smaller, closely held companies. The veil of liability protection normally afforded to a corporation’s owners, whether corporate or individual, may be pierced or lifted due to factors such as domination of the corporation by a parent or owner, noncompliance with legal requirements or corporate formalities, and/or gross unfairness to a third party from limitation of the liability of the corporation’s owners.

In Inter-Tel Technologies v. Linn Station, 360 S.W.3d 152 (Ky. 2012),, the Court held that the three most critical factors to consider in determining whether to pierce the corporate veil of a subsidiary corporation and allow a parent corporation to be held liable for the subsidiary are: (1) grossly inadequate capitalization of the corporation; (2) egregious failure to observe legal formalities and disregard of distinctions between the parent and subsidiary; and (3) a high degree of control by the parent over the subsidiary’s operations and decisions, particularly those of a day-to-day nature.

The Court listed numerous other factors to consider in making the determination whether the subsidiary’s domination by the parent justifies piercing the veil, which include failure to issue stock, nonpayment of dividends, insolvency of the corporation, nonfunctioning of the officers or directors, absence of corporate records, commingling of funds, diversion of corporate assets, failure to maintain an arm’s-length relationships among related entities, and whether the corporation is a mere facade for the operation of the dominant shareholders.

The Court considered these factors and affirmed the decisions of lower courts permitting the veil to be pierced and holding a grandparent and parent corporation liable for a default judgment entered against a subsidiary.

The case of Schultz v. General Electric Healthcare Financial Services Inc., 360 S.W.3d 171 (Ky. 2012),, issued the same day as Inter-Tel Technologies, dealt with a trial court’s judgment on the pleadings piercing the defendant’s corporate veil and permitting its president and sole shareholder to be held personally liable for the corporation’s debts. The main issues in the case were procedural – whether piercing the corporate veil is to be determined by the judge or by a jury (the Court noting the matter is equitable and thus to be determined by the judge), and whether the trial court’s judgment on the pleadings to pierce the corporate veil was appropriate under the circumstances of the case (the Court concluding it was not). However, the opinion also discussed factors a court of equity should consider in making the determination whether to pierce the veil. Those factors include whether the corporate form was abused, whether the form was used to perpetrate a fraud, and whether enforcement of the defendant’s corporate status would work an unfair hardship on a creditor or injured party.

Small, closely held corporations in particular should make sure they observe all legal requirements and formalities and otherwise meet the conditions for enforcement of their corporate status to avoid having their veils pierced and their owners exposed to unlimited liability.

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

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Friday, May 25th, 2012


May 25, 2012

LawReader has been advised that the State Bar
Association of Ohio has notified attorney Eric Deters, that they will grant
reciprocity to the 61 day suspension granted against him by the Kentucky
Supreme Court.

Deters is licensed in Kentucky and Ohio.  We are advised that this practice of the Ohio
Bar in granting reciprocity is pretty common.

Deters has already served over 90 days suspension
over the 61 day suspension imposed by the Ky. Supreme Court due to the intervention
of the Ky. Bar Counsel’s office which filed a motion objecting to his automatic
reinstatement after he had served the 61 day suspension.

The Character and Fitness Committee this week deny
the motion of the Ky. Bar Counsel to further extend Deters suspension.  The KBA Board of Governors will now consider
the action of the Character and Fitness Committee on June 5, 2012, and then
their action must be reviewed by the Ky. Supreme Court.

It is presumed that the Ohio suspension must start
this week. But if Kentucky reinstates him he could then resume practice in
Kentucky but could not practice in Ohio till the 61 day reciprocity penalty is

The Kentucky Supreme Court rules allow the ethics
prosecutor to in effect unilaterally increase a penalty imposed by the Ky.
Supreme Court merely by objecting to his reinstatement after his service of the
Supreme Court period of suspension.

This delegation of real sentencing power to the Bar
Counsel has no precedent in any other area of the law.

We hope that the Board of Governors and the Supreme
Court will at least make their rulings expeditiously to conclude this matter.

The Kentucky Supreme Court retains the power to
alter this procedure and to regulate the power they have delegated to the
ethics prosecutor.




May 25, 2012

LawReader has been advised that the State Bar Association of Ohio has notified attorney Eric Deters, that they will grant reciprocity to the 61 day suspension granted against him by the Kentucky Supreme Court.

Deters is licensed in Kentucky and Ohio. We are advised that this practice of the Ohio Bar in granting reciprocity is pretty common.

Deters has already served over 90 days suspension over the 61 day suspension imposed by the Ky. Supreme Court due to the intervention of the Ky. Bar Counsel’s office which filed a motion objecting to his automatic reinstatement after he had served the 61 day suspension.

The Character and Fitness Committee this week deny the motion of the Ky. Bar Counsel to further extend Deters suspension. The KBA Board of Governors will now consider the action of the Character and Fitness Committee on June 5, 2012, and then their action must be reviewed by the Ky. Supreme Court.

It is presumed that the Ohio suspension must start this week. But if Kentucky reinstates him he could then resume practice in Kentucky but could not practice in Ohio till the 61 day reciprocity penalty is served.

The Kentucky Supreme Court rules allow the ethics prosecutor to in effect unilaterally increase a penalty imposed by the Ky. Supreme Court merely by objecting to his reinstatement after his service of the Supreme Court period of suspension.

This delegation of real sentencing power to the Bar Counsel has no precedent in any other area of the law.

We hope that the Board of Governors and the Supreme Court will at least make their rulings expeditiously to conclude this matter.

The Kentucky Supreme Court retains the power to alter this procedure and to regulate the power they have delegated to the ethics prosecutor.






Friday, May 25th, 2012

May 25, 2012

The Bar Counsel’s Office in a brief filed with the Character and Fitness Committee revealed to the Character and Fitness Committee the information that “six” new charges were pending against Deters.

The purpose of the Bar Counsel’s brief was clearly to influence the Character and Fitness Committee to grant their motion to deny automatic reinstatement of Deters to the practice of law as requested by the Bar Counsel’s Office.

This presents a troubling question…was this revelation of the newly filed charges against Deters improperly disclosed in violation of SCR 3.150?

Did the Inquiry Commission issue an authorization for the release of this information?

Did any court or other authorized body mentioned in SCR 3.150 authorize the release of confidential information? Or did the Bar Counsel’s Office just take it upon themselves to pump up their brief against Deters by adding this confidential information.

We invite the reader to read SCR 3.150 (below) which declares ethics complaints should be held to be confidential except under the exceptions stated in SCR 3.150.

Make you own decision about whether or not the Bar Counsel can, without request from the Character and Fitness Committee, or other authorized body, release confidential facts in an attempt to harm the defendant attorney.

It was reported to us that at least two of these counts were only recently filed and not heard by the Inquiry Commission and had not been ruled on by the Trial Commissioner.

We can’t confirm or deny that the Character and Fitness Committee sought this information from the Bar Counsel. The have the authority to request such information….but did they request this information?

The Character and Fitness Committee will know if they requested this confidential information, and the Board of Governors should make an inquiry as to whether or not there is any possible justification for the release of this confidential information by the Bar Counsel’s Office.

We invite the Board of Governors, who will be considering the ruling of the Character and Fitness Committee in denying the Bar Counsel’s motion against Deters, to read this rule and to inform themselves as to whether or not the Bar Counsel’s Office violated the confidentiality rule.

The Bar Counsel will be present before the Board of Governors and the Board has the power to ask them if they properly released information about a confidential proceeding to the Character and Fitness ommittee outside of the exceptions stated in the SCR’s.

If the Bar Counsel’s Office improperly released this information, who will do anything about it?

Will the Bar Counsel’s Office investigate themselves? Will the Board of Governors appoint an independent investigator to look into this issue?


If indeed there was a violation of SCR 3.150 by the Bar Counsel’s Office, will the Board of Governors give a free pass to the Bar Counsel’s Office or will they exercise their authority granted by SCR 3.155 which allows then to take personnel action against any employee of the Bar Counsel’s office “at their pleasure”.;

SCR 3.155 Appointment and duties of Bar Counsel

(1) The Board shall appoint a Bar Counsel and such Deputy Bar Counsel as may from time to time be appropriate. Bar Counsel shall be responsible for investigating and prosecuting all disciplinary cases and such other duties as the Board may designate.

(2) Bar Counsel, and such Deputies as may be appointed, shall serve at the pleasure of the Board.

(3) Bar Counsel and all Deputies shall be attorneys licensed to practice law in the Commonwealth.

(4) The Board may employ such Bar Counsel staff as may be appropriate.

(5) Annually, on or before November 1, the Inquiry Commission shall submit to the Board a recommended budget for the succeeding fiscal year along with any recommended changes in annual membership dues to cover costs of administering the duties of the Inquiry Commission and the office of Bar Counsel.

HISTORY: Adopted by Order 98-1, eff. 10-1-98

Will the Board of Governors review this situation and inform themselves and determine if a violation of the confidentiality rules actually occurred? Was there a proper legal exception allowing this information to be released and filed with the Character and Fitness Committee?

If a violation occurred it appears to be in the hands of the Board of Governors to deal with any violation.

This fact that we must ask these questions demonstrates the growing list of structural problems with the existing lawyer discipline process in Kentucky.



SCR 3.150 Access to disciplinary information

(1) Confidentiality. In a discipline matter, prior to a rendition of a finding of a violation of these Rules by the Trial Commissioner or the Board and the recommendation of the imposition of a public sanction, the proceeding is confidential.


(a) Notwithstanding subsection (1), the pendency, subject matter and status may be disclosed by Bar Counsel if:

i. The Respondent has waived confidentiality;

ii. The proceeding involves public reciprocal discipline;

iii. The disclosure of any information is made for the purpose of conducting an investigation by the Inquiry Commission or the Office of Bar Counsel, or;

iv. A Motion for Temporary Suspension is pending.

(b) After considering the protection of the public, the interests of the Bar, and the interest of the Respondent in maintaining the confidentiality of the proceeding prior to a finding of a violation of the Rules, the pendency, subject matter and status may also be disclosed by Bar Counsel at the discretion of the Chair of the Inquiry Commission, or of the Chair’s lawyer member designee, if:

i. The proceeding is based upon an allegation that the Respondent has been charged with a crime arising from the same nexus of facts; or

ii. The proceeding is based upon a finding by a court in a civil matter that an attorney has committed conduct that may constitute a violation of the Rules of Professional Conduct.

(3) Duty of Participants. All Participants in a proceeding under these Rules shall conduct themselves so as to maintain the confidentiality requirement of this Rule. Nothing in the rule shall prohibit the Respondent from discussing the disciplinary matter with any potential witness or entity in order to respond in a disciplinary proceeding, or to disclose to any tribunal, or to disclose any information for the purpose of conducting a defense. This provision shall not apply to the Complainant or the Respondent after the Inquiry Commission or its Chair has taken action on a Complaint including the issuance of a charge, the issuance of a private admonition, or a dismissal, including those pursuant to SCR 3.160(3).


(a) Request for Non-Public Information. A request for non-public information to the Office of Bar Counsel may be considered by the Inquiry Commission and may be granted if the request relates to an investigation by the requestor AND IS MADE BY:

i. The Character and Fitness Committee;

ii. A Lawyer Disciplinary Enforcement Agency;

iii. A Judicial Disciplinary Enforcement Agency;

(b) A request for non-public information to the Office of Bar Counsel may be considered by the Court if the request is made by a Law Enforcement Agency, or other official authorized by federal or any state’s law to investigate or prosecute misdemeanors or felonies, or the equivalent thereof, in any jurisdiction, provided that the agency or official certifies under oath with specificity that the information is necessary to a pending investigation. In this event the Respondent shall receive notice unless the Court determines that disclosure of the request would seriously prejudice the investigation.

(c) In the absence of a third party request, the Court may permit the disclosure of any nonpublic information to any of the entities listed in (4)(a) or (b) upon application to it by the Office of Bar Counsel.

(d) In the event of a request under (4)(a) or (c) no notice to the Respondent is required, although either the Inquiry Commission or Court may require notice upon review of the application.

(5) Public Proceedings. Upon a finding by the Trial Commissioner or the Board that an attorney has committed a violation of these rules meriting public discipline, or upon the filing of a petition for reinstatement, the record of the Disciplinary Clerk, and any further proceedings before the Board or Court, shall be public except for:

(a) deliberations of the Inquiry Commission, Board of Governors, or the Court; or

(b) information with respect to which a protective order has been issued.

(6) Protective Orders. The Inquiry Commission, the Trial Commissioner, the Board, or the Court, which at the time the order is sought has the case pending before it, may, upon application of any person or entity, and for good cause shown, issue a protective order. Such an order may protect the interests of a Complainant, witness, third party, Respondent, or Bar Counsel. The order may prohibit the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement the order, including requiring that the hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the application.

(7) Notice to National Discipline Data Bank. The Disciplinary Clerk shall transmit notice of all public discipline imposed against a lawyer and reinstatements to the National Discipline Data Bank maintained by the American Bar Association.

HISTORY: Amended by Order 2007-007, eff. 2-1-08; prior amendments eff. 1-1-99 (Order 98-2),

10-1-98 (Order 98-1), 1-1-87 (Order 86-3), 1-1-86, 10-1-82, 4-1-82, 1-1-80, 7-2-71

¹SCR 3.150(8) is amended to comply with Doe v. Supreme Court of Florida, 734 F.Supp. 981

(S.D. Fla. 1990).


Non-Lawyers Find It Hard Avoid Breaking Bar’s Vague Rules – Ky. case featured in Forbes article

Friday, May 25th, 2012

By Forbes Magazine

(LawReader Note: The Ky. Constitution apparently grants jurisdiction of the Judiciary to regulate “members of the bar”..but does not clearly allow jurisdiction over non-lawyers. Several states have held that “unauthorized practice of law” is a legislative issue.)


For the better part of a decade, Della Tarpinian has been locked in a Kafkaesque battle with a trade association she doesn’t belong to, the Kentucky Bar Association. She’s been fined $5,000 and ordered to pay the costs of her investigation, for violating rules that the average non-lawyer might find maddeningly vague and hard to understand.

Such as: “A person is guilty of unlawful practice of law when, without a license issued by the Supreme Court, he engages in the practice of law.” That one tripped up Tarpinian, 53, who runs a small document-preparation firm in Owensboro, Kentucky specializing in uncontested divorces, wills and other simple legal matters.

After a lengthy investigation, the Kentucky Bar determined that Tarpinian’s clients couldn’t possibly have figured out how to fill out the paperwork they filed in court, without her coaching them behind the scenes. What surprised Tarpinian — and many other document-preparers around the country — is that the Bar could drag her before the state Supreme Court and have her fined for, as she sees it, competing against its members. Especially since a jury acquitted Tarpinian of similar charges in a 2004 criminal trial, after less than half an hour of deliberations.

“They only charge people that’s making money,” said Tarpinian, who has a paralegal degree and worked in a lawyer’s office before opening her own document-preparation firm in Owensboro. “It’s so ambiguous, so unclear.”

Small firms aren’t the only ones running afoul of their local bar association. LegalZoom, a nationwide provider of incorporation documents, divorce papers, wills and other legal forms, has been investigated in North Carolina, Pennsylvania and other states. It’s being sued by lawyers in Missouri who want to form a class action on behalf of consumers statewide, even though there are no consumer complaints referenced in the case.

All 50 states have rules and laws prohibiting the unauthorized practice of law, ostensibly to protect consumers. Defenders of these laws make the analogy to doctors: You wouldn’t want an unlicensed doctor to remove your appendix, would you? But the analogy isn’t precise. While it’s true an unlicensed person can’t perform surgery or prescribe medicine, the American Medical Association doesn’t have the power to fine, say, a massage therapist who advises a client to take St. John’s Wort instead of Paxil. When it comes to the law, the bar associations of many states have the power not only to identify people who are violating their rules, but haul them into court.

This self-regulatory scheme bothers experts like Gillian Hadfield of the University of Southern California Law School, who thinks lawyers can use it to squelch competition and innovations such as automated legal document services. The U.K. never had unauthorized-practice rules, she notes, and in 2007 it established an independent commission to oversee all types of legal services including lawyers. The feds have also been critical at times of the legal profession’s attempt to maintain a closed shop. The Federal Trade Commission sent a threatening letter to the American Bar Association in 2002, warning that a proposed model standard for unauthorized practice would “raise costs for consumers and limit their competitive choices.”

There seem to be some glaring exceptions when it comes to enforcement. Members of politically powerful Realtors organizations rarely get dragged before state UPL commissions, even though they routinely provide contracts and advice involving the largest investment most consumers will ever make. Bank employees in many states can preside over mortgage closings. The Kentucky Bar Association tried to close these loopholes in 1999, but the U.S. Justice Department intervened. In a 2003 ruling, the state Supreme Court sided with the feds, noting that the Bar Association failed to provide any evidence consumers had been harmed.

State motor-vehicle departments also have teams of operators standing by to offer advice on how to obtain or recover another essential modern legal right, the right to drive. But lawyers who specialize in traffic tickets keep a sharp eye out for unlicensed competitors. Don Bailey first ran afoul of Ohio bar officials in 1996 when he was investigated for providing legal advice along with his service of filing vehicle-related paperwork. He signed a consent agreement — a typical pattern in these cases — then proceeded to build his License Resque into a prosperous business by providing paperwork and shuttling it to the local motor-vehicle bureau. The Cincinnati Bar Association repeatedly investigated him and filed legal actions against the firm. Finally in 2006, the state Supreme Court fined Bailey $50,000, citing his long-ago consent agreement.

Bailey refuses to pay, claiming he is indigent. Indignant, too. The Supreme Court decision says Bailey advised clients on time limits for filing forms, requirements for reinstating licenses, and communicated with motor vehicle department personnel on behalf of clients. Bailey says his advice ran to telling consumers how to fill out paperwork, when it needed to be filed, and practical tips like “if you’re filing with the court to recover your driving privileges, for God’s sake, don’t get another ticket.’”

“Is that being a lawyer?” he asks. “I can’t tell them what my experience has been over the years?”

A spokesperson for the Ohio Supreme Court, in a statement, said the rules are clear, citing “more than 80 years of case law from the Supreme Court of Ohio that clearly delineates what is and is not permitted.” The rules are designed for consumer protection, the court spokesperson said, although the court also hears complaints brought by lawyers. The state has prosecuted 34 cases since 2004, levying $22 million in fines but collecting only about $79,000 of that. The spokesperson couldn’t provide figures on how many cases began with consumer, as opposed to lawyer, complaints. The biggest fines were levied against American Family Prepaid Legal Corp., which targeted elderly consumers with “Living Will” products that supposedly bundled a broad array of legal services along with annuities and insurance. State consumer-protection laws cover the type of activity American Family was accused of, including misleading customers about the nature of the services it provided.

In Arizona, it’s the lucrative, high-volume business of processing immigration paperwork that has drawn the interest of unauthorized-practice officials. In 2003 the state created a licensing regime for document preparers, over the objections of lawyers.

“There’s been an ongoing battle here ever since,” said lawyer Kevin Torrey. He represents Karina Morales, a licensed document preparer who has been sued by the state licensing board for filing immigration papers for her clients. Torrey says the case stems from a disgruntled — and unlicensed — competitor who was sued by the bar and then filed a complaint against Morales because she remained in business. An administrative law judge has indicated he thinks document preparers should not be able to handle immigration matters, Torrey said, even though U.S. Customs rules have allowed the practice for more than a decade. Customs encourages people to use professional document preparers because of the volume and complexity of forms that must accompany an application, Torry said.

“People who can’t afford a lawyer, I don’t know how they could ever fill out that paperwork,” said Torrey. “My client after 12 years knows all the ins and outs.”

Tarpinian first got in trouble with the Kentucky Bar in 2001, shortly after she had moved from L.A. As with Bailey, the bar sent her a letter in 2003 warning her that an investigators had determined she was practicing law without a license. Tarpinian ignored the letter, and then the district attorney in Owensboro mounted an undercover sting operation, enlisting a state trooper to obtain a will. Tarpinian was indicted for the misdemeanor crime of practicing law without a license, with a possible sentence of 90 days in jail.

Her lawyer, Galen Clark (paid-up member of the Kentucky Bar) said the prosecutor tried to negotiate a plea bargain but Tarpinian refused. The case went before a six-member jury in 2004 that quickly acquitted her of the charge.

“From 2004 to 2010 they left me alone,” Tarpinian said. But meanwhile, judges in Owensboro started complaining about people who came into court with divorce and other papers that looked suspiciously well-prepared. Some judges began to refusing to process divorces if Tarpinian had prepared the paperwork, even though her clients weren’t complaining.

Shawn Dowden told me she filed an uncontested divorce in Daviess County Court in March, 2008 on forms Tarpinian had supplied.

“The court threw it out because of her, so I had to completely start over,” said Dowden, who had no complaint about Tarpinian. “The judge said she filled out my paperwork for me, but I filled it out myself.”

The judges filed a complaint with the Bar in 2010, Clark said, and Tarpinian was accused of violating the 2003 cease-and-desist letter even though she’d never signed it. Her crimes included preparing nine uncontested divorces and filling out a child support worksheet in which she calculated child-support obligations.The court concluded that Tarpinian’s clients representing themselves or pro se, couldn’t have drafted the documents they filed with the court.

These petitions are legally sophisticated pleadings, citing case law and court rules. They evidence legal knowledge well beyond the legal knowledge of an ordinary person. Each of these petitions are signed by the litigants, pro se. These pro se litigants did not create these petitions.

Tarpinian, like Bailey, has refused to pay her $5,000 fine.

“I pay my taxes, I’ve never broken any laws, and I’ve helped thousands of people who can’t afford an attorney and don’t want one,” she told me. “I’m still working even though they scared me to death.”

For document-preparers like Tarpinian, determining the fuzzy line they can’t cross over is difficult. One lawyer struggled to come up with a definition and finally told me the practice of law is giving advice that two lawyers can disagree upon, with neither one committing legal malpractice. That goes to the heart of any profession, which is exercising judgment honed by specialized education and experience. The judicial branch has a particular interest in insuring that people who collect fees to represent clients in court are qualified to be there.

But if even lawyers have trouble delineating the boundaries of the legal profession outside of court, how are non-lawyers expected to figure it out




Bankruptcy Attorneys Beware: you may have to reveal confidential client information

Thursday, May 24th, 2012


By Richard Meyer |


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It is commonly understood that a spouse cannot be forced to reveal marital communications, a confessor cannot reveal a penitent’s sins, and an attorney cannot reveal a client’s confidential information. But late last year a court in Ohio held that attorneys could be forced to reveal client communications in a bankruptcy proceeding. It is well known that the Trustee in a bankruptcy case takes over the interests of the Debtor. The bankruptcy court in Ohio expanded this concept to confidential communications between the Debtor and his bankruptcy attorneys, holding that the bankruptcy Trustee owns the attorney client privilege and may chose to waive it. If the Trustee waives the privilege, the attorneys must disclose their communications with the client.

In 1985, the United States Supreme Court held that corporations which file for bankruptcy protection surrender the attorney client privilege to the Trustee. Since then, federal courts around the country have disagreed whether this rule applies to individual persons filing for bankruptcy protection or just corporations. Some courts have held that the same rule applies to corporations and individuals. Other courts say the privilege always remains with the individual Debtor and therefore may never be waived by the bankruptcy Trustee. The court in Ohio took a middle ground position, holding that the Trustee’s right to waive the attorney client privilege of the Debtor must be decided on the particular facts of each case.

The facts in that case were especially interesting and serve as a warning to bankruptcy attorneys. The Trustee in that case was alleging that the individual Debtor had a legal malpractice claim against his bankruptcy attorneys for advice given about potentially concealing assets from the bankruptcy court. Since the Trustee’s malpractice claim against the attorney would actually benefit the Debtor by increasing his assets, the court concluded that there was no adversity of interests between the Trustee and the Debtor. Therefore the Trustee in these circumstances owned and could waive the attorney-client privilege and discover all communications between the Debtor and his attorneys. The court did note that the Trustee in that case was not pursuing a fraudulent concealment claim against the Debtor, an obvious strategy on the part of the Trustee to penalize the attorneys with a malpractice claim for supposedly advising the Debtor on how to conceal his assets. As of today’s date, the Trustee’s malpractice claim against the attorneys is still pending.

Richard Meyer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc




Thursday, May 24th, 2012

LawReader has just confirmed that the KBA Board of Governors has notified attorney Eric Deters that he may attend a meeting of the Board on June 5, 2012 where they will apparently act on the ruling of the Character and Fitness Committee which supported the automatice reinstatement of Deters.    Deters was sentenced by the Supreme Court to a suspension from the practice of law for 61 days.     Subsequently the Bar Counsels office objected to the automatice reinstatment of Deters and a hearing was conducted by the Character and Fitness Committee.   The committee rejected the Bar Counsels motion.

The attorney discipline rules now send the case to the Board of Governors for their review, and then the issue must be reviewed by the Ky. Supreme Court.

The actions of the Bar Counsel is seeking to enhance the penalty imposed against Deters has already resulted in an additional period of suspension of some 32 days.

The expedited hearing of the Board of Governors appears to indicate that the Board will act quickly.

CHARACTER AND FITNESS COMMITTEE TORPEDOES BAR COUNSEL’S MOTION TO DENY AUTOMATIC REINSTATEMENT TO ATTORNEY ERIC DETERS – Never-the-less, the Bar Counsel by gaming the system, continues to keep Deter’s swinging slowly in the wind.

Thursday, May 24th, 2012

The Character and Fitness Committee, a body appointed by the Supreme Court, has conducted a hearing on a motion filed by the KBA Bar Counsel’s Office to deny the automatic reinstatement to the practice of law by Eric Deters. The rules say that any period of suspension of less than 180 days allows the automatic reinstatement of the lawyer after he has served his sentence of suspension. However, there is a rule that allows the Bar Counsel to ignore the sentence of the Supreme Court and to deny automatic reinstatement. This rule, SCR 3.505 (see below), imposes on the defendant attorney the burden to prove his fitness for reinstatement. In most prosecutions, the accuser has the burden of proof, but in attorney discipline procedures, the burden of proof is placed on the defendant lawyer. This obscure rule in effect submits the attorney to double jeopardy. He can be tried and sentenced, and then tried and sentenced again.

The Character and Fitness Committee ruled against the Bar Counsel , and slapped down their motion to extend Deters suspension of 61 days (imposed by the Ky. Supreme Court). (If we gain access to that ruling we will publish it.)

SCR 3.510(3) requires that the ruling of the Character and Fitness Committee must now be referred to the KBA Board of Governors, and then reviewed by the Ky. Supreme Court. That could extend Deters suspension for months….thereby allowing the Bar Counsel to have the last laugh. Any system of justice that allows a prosecutor to unilaterally add to the sentence of the court is troubling.

In the attorney discipline process, the Supreme Court upheld the original finding of the Board of Governors recommending dismissal of l5 of l9 charges brought against Deters by the Bar Counsel, and the Court imposed a 61 day suspension of Deters.

Deters accepted that suspension, but then the Bar Counsel’s Office used a little known SCR that allowed them to object to the automatic reinstatement of Deters after he had served his 61 day suspension sentence.

The rule provides that the Character & Fitness Committee must then investigate and rule on the Bar Counsel’s motion to deny automatic reinstatement.

Deters made a public statement on his radio show that suggested that the Bar Counsel in an attempt to enhance the penalty imposed by the Supreme Court, attacked his political statements and questioned his humility in defending himself, in their brief submitted to the Character and Fitness Committee.

We have found no Supreme Court Rule which grants the KBA the right to judge the character of an attorney based on his political views. We have not seen the ruling of the Character and Fitness Committee and do not know if they specifically ruled on the KBA’s attack on Deters political beliefs, but if they didn’t they missed a good opportunity to protect the rights of all attorneys.

The Bar Counsel’s actions are viewed by some as retaliation for Deters vigorous defense against the complaints prosecuted by the Bar Counsel. We note that prosecutors have the duty to be “Ministers of Justice”. Many attorneys are wondering if that duty has been fulfilled by the Bar Counsel’s office. We recall that when Linda Gosnell was dismissed by the Board of Governors, that one statement floating around Frankfort, suggested that one of the reasons for Gosnell’s discharge was “excessive prosecution” by her office. Perhaps the Board of Governors should now review the conduct of those Bar Counsel Office members responsible for the continued prosecution of Deters.

The Bar Counsel argued against the automatic reinstatement of Deters right to practice law and even filed six new complaints shortly before the Character and Fitness Committee conducted their hearing re: Deters. The Bar Counsel presented these new charges (brought just days before the Character and Fitness Committee hearing) to support their argument to the Character and Fitness Committee that Deters should not be reinstated. How can they attack an attorney on charges on which were only recently filed and in which there has been no hearing or findings supporting these new allegations? Apparently the Character and Fitness Committee was not impressed by any of the Bar Counsel’s arguments. In dismissing the Bar Counsel’s motion the Character and Fitness Committee demonstrated a great deal of back bone.

Deters continues to vigorously defend himself against these six new charges and reports that there are many factual errors contained in these new complaints.

The Bar Counsel argued to the Character and Fitness Committee that Deters did not show sufficient “humility” over his conviction on 4 counts. We have found no authority that says an attorney who is disciplined must be ”sufficiently humble” to satisfy the Bar Counsel’s Office.

We find it troubling that after the Bar Counsel lost their argument on l5 of l9 counts against Deters, they continue to pursue him with more and more claims. After the lengthy investigation of Deters why didn’t they bring these charges before? Unfortunately there is no statute of limitations on claims brought by the Bar Counsel. We concede that the Bar Counsel may bring any claim if they believe they are supported by the law and facts. But when will this end?

The record reveals that the Bar Counsel claimed $44,000 in attorney’s fees in the prosecution of Deters, and that was before they filed their objection to his automatic reinstatement as ordered by the Supreme Court. How much more has the Bar Counsel expended of our dues money to pursue this attack on Deters?

We would hope that as some time the Board of Governors would ask the question of the reasonableness of the Bar Counsel in expending additional time and money to go after Deters.

In any real litigation, there is usually an evaluation by some adult, as to whether or not the expenditure of additional funds is justified in questionable cases. The Board of Governor’s has the power to be that “adult” reviewer.

We suggest that the Board of Governors has demonstrated their independence by acquitting Deters of l5 counts out of l9, but will they now allow the penalty to be greatly enhanced? They must meet to consider the ruling of the Character and Fitness Committee and that will then go back to the Supreme Court for review, and in the mean time Deters is left slowly twisting in the wind. So even though the Bar Counsel’s effort to deny reinstatement to Deters was a failure, they still end up the winner, due to the burdensome systemic rules regarding attorney discipline procedures. The Board of Governors could and should call an immediate hearing to consider the ruling of the Character and Fitness Committee, and to refer the matter to the Supreme Court before the Court takes its July recess. This would quickly resolve most issues.

The Bar Counsel has hurt Deters practice, they have hurt his reputation, they have already caused him to have more than 30 additional days of suspension added to the sentence of the Supreme Court…and there will undoubtedly be additional days of suspension until all the procedures are completed.

Larry Forgy of Lexington predicted that the actions of the Bar Counsel’s office to continue to try to disbar Deters “are not over”. Their past conduct suggests that they will ignore the message sent to them by the sentence of the Board of Governors, the sentence of the Supreme Court and now by the ruling of the Character and Fitness Committee.

The acts of the Bar Counsel reminds us of the quote of the Wicked Witch in the Wizard of Oz, “I’ll get you, my pretty…and your little dog too!”

Every Kentucky attorney would be wise to be concerned about the Deter’s case. Today it is Eric Deters, but tomorrow it may be you.

The need for reform of the attorney discipline process cries out for quick action by the Supreme Court.


SCR 3.505 Character and Fitness Committee; reinstatements

(1) The Character and Fitness Committee created by SCR 2.040 shall, in addition to the powers and duties conferred in that rule, consider all applications for reinstatement to the practice of law by persons who:

(a) have been suspended for more than one hundred eighty (180) days;

(b) have been suspended for one hundred eighty (180) days or less, BUT WHOSE REINSTATEMENT HAS BEEN OPPOSED BY BAR COUNSEL.

(2) The Character and Fitness Committee may act upon the application and such investigative material as it may gather or Bar Counsel may tender to it, all of which information not submitted by the Applicant shall be made available to the Applicant


(3) The Applicant or Bar Counsel shall have the right to a hearing before the Character and Fitness Committee prior to the issuance of its decision. The hearing shall be held within sixty (60) days from the request. The report of the Committee shall be filed within sixty (60) days of receipt of the transcript of hearing.

(4) If either party requests a hearing before the Character and Fitness Committee, the Applicant shall have the rights accorded a Respondent in a disciplinary proceeding pursuant to SCR 3.300, except that the Character and Fitness Committee shall hold the hearing rather than a Trial Commissioner. The burden of proof of one’s good character and fitness.”


The Board of Governors has set a hearing for review of the Character & Fitness Committee ruling for June 5, 2012.



Wednesday, May 23rd, 2012



Private Attorney Hired by City Enjoys Qualified Immunity

By Todd McMurtry |


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In a recently issued opinion, the U.S. Supreme Court held that an attorney hired to perform an internal investigation was entitled to seek the protection of qualified immunity. Filarsky v. Delia, 132 S.Ct. 1657 (2012). The case involved the City of Rialto, California. Rialto hired an experienced employment law attorney Filarsky on a limited basis to investigate a firefighter it suspected was taking advantage of its sick leave policy. Filarsky demanded that the firefighter produce evidence that he was not working at home while taking sick leave from work. The firefighter complied, but then sued under 42 U.S.C. §1983 for violation of his Fourth and Fourteenth Amendment rights.


The firefighter sued multiple city officials and Filarsky; the District Court granted summary judgment in favor of all defendants based upon qualified immunity. The Court of Appeals for the Ninth Circuit affirmed that decision for all defendants, except Filarsky, finding that “because he was a private attorney and not a City employee, he was not entitled to seek the protection of qualified immunity.” Id. at 1661 (citing Delia v. Rialto, 621 F.3d 1069, 1080-1081). The Ninth Circuit noted that its decision conflicted with Sixth Circuit on this question, but considered itself bound by its own precedent. Id. (citing Cullinan v. Abramson, 128 F.3d 301, 310 (6th Cir. 1997)). The Supreme Court granted Filarsky’s petition for certiorari.


To determine if a occasional or part-time governmental actor was to be afforded the protections of qualified immunity enjoyed by their full-time counterparts, the Court analyzed the common law regarding private individuals exercising governmental powers. Noting that Congress passed §1983 in 1871, it examined the common law that existed at that time. The Court found that many private citizens, such as prosecutors, judges, sheriffs and notaries, were engaged in government work on a part-time basis. At that time, the common law granted these part-time governmental officials “absolute immunity from suit.” Id. at 1661-1662.


As a general rule, common law immunities are “not to be abrogated absent clear legislative intent to do so.” Id. at 1665 (citing Pulliam v. Allen, 446 U.S. 522, 529, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984)). The Court examined this issue and concluded that §1983 did not change the existing common law immunities. Id. at 1662.


The rationale for granting immunity to part-time governmental actors is to give such persons the ability to act without fear of suit, and to attract the best people to such positions. Should a successful attorney fear suit for undertaking occasional or part-time governmental work, then she might avoid it. Granting such persons qualified immunity benefits government. “Allowing suit under §1983 against private individuals assisting the government will substantially undermine an important reason immunity is accorded public employees in the first place.” Id. at 1666.


In its conclusion, Justice Roberts acknowledged that today many large cities have full-time paid staff to perform most functions, and that these staff members enjoy qualified immunity. Smaller cities, however, “must rely on the occasional services of private individuals,” and there is no reason such persons should “be denied qualified immunity enjoyed by the ones who work for” larger cities. Id. at 1668.


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


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Tuesday, May 22nd, 2012


Randy operates as “Hypnosis by Randy”. We would like to see someone sponsoring a CLE use Randy to demonstrate the potential use of hypnosis in discovery, analysis of witnesses, etc.

His phone number is 812-738-7280 or 812-989-3359, e-mail:

Video clips of his work can be viewed at



Lawyers Thrown Off Case For Drawing Dick Pics, Playing Angry Birds During Deposition – Comment by UK law professor.

Monday, May 21st, 2012

Lawyers Thrown Off Case For Drawing Dick Pics, Playing Angry Birds During Deposition

May 21,2012 Comment from UK Law Professor Richard Underwood: “The lawyers drew pictures of penises to upset the other side. Entire firm was disqualified because of the dick pics. So don’t be a dick.”

By Kyle MunzenriederThu., May 17 2012 at 12:26 PM Miami New Times Blogs –


A United States District Judge based in Miami has disqualified two attorneys from the Morgan & Morgan law firm from a case after the opposing counsel complained, among other things, that one of the lawyers drew pictures of male genitalia and openly played Angry Birds during depositions.


The two lawyers, Richard Celler and Stacey Schulman, were representing a class action complaint against Aventura Limousine & Transportation Services, Inc. The Limo company allegedly violated the Fair Labors Standard act, and an ex-employee had enlisted the services of the Morgan & Morgan law firm. That’s the mega-firm whose “For the People” advertising blankets the state and now employs former Governor Charlie Crist.


The opposing counsel however complained to the judge, Cecilia M. Altonaga, that Mr. Celler in particular “ha[d] systematically engaged in inappropriate and offensive behavior.”


Among his most egregious crimes were drawing dick pictures, playing Angry Birds and choosing Duncan Donuts for the site of depositions. South Florida Lawyers pointed out this passage from a court document:

In addition to the above, Defendants describe deplorable behavior on Celler’s part that occurred in connection with the Schatt Action. Tinkler testified that during depositions he witnessed “Mr. Celler . . . drawing photos of — pictures of male genitalia and showing them to Ms. Schulman, describing Mr. Coupal. I told Mr. Coupal after that was occurring and he made mention about it.” (Apr. 2, 2012 Hearing Tr. 17:2-5). Sorci testified that he observed Schulman “laugh[ing] quite a few times” at Celler’s drawings, and that on break Schulman made a comment that “this is typical Richard [Celler], this is what he does at these sort of things.” (Id. 85:5-10). Tinkler further stated that “during Mr. Schatt’s deposition Mr. Celler was playing the game Angry Birds. He admitted it aloud and was bragging that he had just beaten somebody in Minnesota at the game during the deposition.” (Id. 17:6-9). Moreover, Celler would wear a tshirt and shorts to proceedings to gain “a psychological advantage.” (Id. 17:11-15). Celler chose Dunkin’ Donuts as the site of depositions against Coupal’s wishes.

Celler made no attempt to deny the allegations.


Though, that juvenile behavior was the only reason the lawyers were disqualified. The judge found that Celler was also making unethical communication with lawyers on the case and, in fact, with the defendants themselves. One of the defendants claimed he was so intimidated by Celler during one such instance that he ended up throwing up in the bathroom. The complaint is a bunch of law jargon, which you can read here, but are you surprised a guy who draws dick pics during depositions would also break more serious rules?


Celler also wrote numerous unprofessional emails to the opposing attorney that included gems like, “Nobody on this side of the Internet cares,” and “You are an impediment to all of these proceedings. It’s a shame.”


Judge Altonaga decided to not only disqualify Celler and Schulman from the case, but the entire Morgan & Morgan law firm.


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An Update on Right to Return to Practice By Eric Deters Re: The Extension of his Period of Suspension, and the effect on his Ohio Law License

Monday, May 21st, 2012

Attorney Eric Deters has released the following press release.   It appears that the 61 day suspension ordered by the Ky. Supreme Court has now become a 91 day suspension with no end in sight, as Bar Counsel uses obscure rules to delay his reinstatement, and the effect this has on his Ohio Law License due to the reciprocity between states re: attorney discipline issues.     May 21, 2012

An Update on My Kentucky Law License By Eric Deters

I thought I would update my clients, fans, and friends.

I have now served nearly 30 more days than the Kentucky Supreme Court ordered on February 23, 2012. While I await the decision of last Tuesday’s confidential Character & Fitness hearing Interim Bar Counsel forced me to go through as part of a reinstatement process, I also await the Supreme Court’s ruling on challenge to the rule which allows Bar Counsel to do this to lawyers without a hearing before it takes effect.

What good is a hearing if it takes place after additional harm or suspension? Character & Fitness had to do their job. It’s not their fault. However, a hearing after more suspension is not due process. Interim Bar Counsel claims it is. This is the issue before the Kentucky Supreme Court.

The Kentucky Supreme Court has now had our challenge for 30 days. We have not received a decision.

If they rule this rule is unconstitutional, I’m immediately back. If they rule it is, I’m appealing to the U.S. Supreme Court. If the Court rules in my favor, there will be no appealing because it’s their rule.

If I do not hear anything by Friday, we are filing the same challenge in federal court on two grounds:

1. We are allowed to challenge bar rules in federal court on future proceeding grounds. We will file on this basis.

2. We will assert that if the State Supreme Court refuses to rule and just continue to “sit” on our petition and motion for injunctive relief, the federal courts should be allowed to rule. I do not deserve to be in limbo.

The federal courts on current bar matters have ruled—“Go to state court.” If the highest state court doesn’t rule, what else am I suppose to do? Especially if every day that goes by I suffer more harm.

Meanwhile, after the Character & Fitness issues their decision, we will then go before the Board of Governors, hopefully in June. If the Supreme Court rules for us, this is not necessary.

So, I can return in Kentucky one of two ways—favorable decision from the Kentucky Supreme Court which puts me back immediately or a favorable recommendation from Character & Fitness which I’ll take to the Board as soon as possible.

Meanwhile, Ohio doesn’t review fresh what Kentucky does and simply accepts it. Therefore, I will have to serve a 61 day suspension in Ohio solely because what Kentucky decided. I’ll receive that Order any day. I was going to challenge this, but after learning it’s always a lost cause, I’m withdrawing my challenge.

Bottom line—I’m being punished far more severely than the Kentucky Board of Governors and the Kentucky Supreme Court ordered based upon an unconstitutional rule and an unfair policy on reciprocal discipline. I’m surprised neither the Board or Court has not acted with more haste to change the rule in question. They did so on the bond issue I fought to change.

I have always had great empathy for those suffering injustice. Please trust me when I say I have even more empathy and passion now as a result of what I have been through. I feel your pain. It will make me an even better lawyer.



Sunday, May 20th, 2012

MAY 20, 2012

New legislation allows County Attorneys to Operate a Local Traffic School.

The troubling aspect of this new law, which should become effective in July of 2012., is a provision that the County Attorney may charge a “reasonable fee” for anyone assigned by the Court to attend such program. The statute reads:

(The County Attorney)…”May charge a reasonable fee to program participants, which shall only be used for payment of county attorney office operating expenses defer the costs of operation of his office”.

Some judges have expressed concern about this new law. First the statute does not state how a “reasonable fee” is set. Does that mean $10 or $500? The statute doesn’t say.

Does the “operating expense” of the county attorney allow him to hire his wife, a relative or a political supporter and to pay them under this statute?

The term “operating expenses” seems to provide almost unlimited discretion to the County Attorney to determine how this money is spent.


The conclusion that some judges have made is that they are troubled that they are required by this statute to assign people to attend a school as a result of charges brought by the County Attorney, and which can be used for the benefit of the County Attorney.


The statute is an amendment to Chapter 186 which has long authorized a State Traffic School to be operated by the Transportation Cabinet. The amendments of 2012 will apparently allow the option of the county Attorney operating his own traffic school “prior to the adjudication of the offense”.

The original traffic school provisions of KRS 186.574 allowed the District Court judge to order attendance in a traffic school only as part of the sentence imposed after the conviction of the defendant.

We find nothing in the new amendments to KRS 186.574 which imposes on the District Court the duty to assign or order any person to attend the County Attorneys’ Traffic School.

The failure of the legislature to add a provision imposing on the Court the power to order attendance at the County Attorney’s Traffic School means that Judges really have no control or authority regarding this new school. This apparently leaves it to the County Attorney to include a requirement for attendance in his plea bargaining negotiations.

Under this law, the County Attorney can use his plea bargaining powers to coerce attendance at his school, and then his office benefits financially from being able to collect a “reasonable fee” which can then be used to defray the County Attorney’s office “operating expenses”. We can see that it is possible that the County Attorney can charge for any “teaching” he might do at such a school….wouldn’t this be an “operating expense”?

This is a poorly written law, with far too much vagueness. The fee charged for such a school might be $100 in one county and $500 in another county…there is no guidance as to the definition of a “reasonable fee” in the statute.

We can find no provision in the new amendments which require a District Judge to do anything to influence who must attend this new school. Further we find no provision of this statute which allows enforcement or penalties against anyone who fails to attend the County Attorneys’ school.

We emphasize that this school is set up by the amendments to apply to defendants, “prior to the adjudication of their offense”.

We would suggest that Judges are ethically forbidden to participate in any conduct that gives the appearance of impropriety. Helping a prosecutor benefit financially from such a program might involve a Judge in an ethical issue.

We should suggest that District Judges keep their distance from the County Attorney’s Traffic School. This is a problem for the Legislature and the various ethics committees to consider.



AN ACT relating to county attorney-operated traffic programs.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 1. KRS 186.574 is amended to read as follows:

(1) The Transportation Cabinet shall establish a state traffic school for new drivers and for traffic offenders. The school shall be composed of uniform education and training elements designed to create a lasting influence on new drivers and a corrective influence on traffic offenders. District Courts may in lieu of assessing penalties for traffic offenses, other than for KRS 189A.010, sentence offenders to state traffic school and no other. The Transportation Cabinet shall enroll a person in state traffic school who fails to complete a driver’s education course pursuant to KRS 186.410(5).

(2) If a District Court stipulates in its judgment of conviction that a person attend state traffic school, the court shall indicate this in the space provided on the abstract of conviction filed with the Transportation Cabinet. Upon receipt of an abstract, the Transportation Cabinet, or its representative, shall schedule the person to attend state traffic school. Failure of the person to attend and satisfactorily complete state traffic school in compliance with the court order, may be punished as contempt of the sentencing court. The Transportation Cabinet shall not assess points against a person who satisfactorily completes state traffic school. However, if the person referred to state traffic school holds or is required to hold a commercial driver’s license, the underlying offense shall appear on the person’s driving history record.

(3) The Transportation Cabinet shall supervise, operate, and administer state traffic school, and shall promulgate administrative regulations pursuant to KRS Chapter 13A governing facilities, equipment, courses of instruction, instructors, and records of the program. In the event a person sentenced under subsection (1) of this section does not attend or satisfactorily complete state traffic school, the Transportation Cabinet may deny that person a license or suspend the license of that person until he reschedules attendance or completes state traffic school, at which time a denial or suspension shall be rescinded.

(4) Persons participating in the state traffic school as provided in this section shall pay a fee of fifteen dollars ($15) to defray the cost of operating the school, except that if enrollment in state traffic school is to satisfy the requirement of KRS 186.410(4)(c), a fee shall not be assessed. Any funds collected pursuant to KRS 186.535(1) that are dedicated to the road fund for use in the state driver education program may be used for the purposes of state traffic school.

(5) The following procedures shall govern persons attending state traffic school pursuant to this section:

(a) A person convicted of any violation of traffic codes set forth in KRS Chapters 177, 186, or 189, and who is otherwise eligible, may in the sole discretion of the trial judge, be sentenced to attend state traffic school. Upon payment of the fee required by subsection (4) of this section, and upon successful completion of state traffic school, the sentence to state traffic school shall be the person’s penalty in lieu of any other penalty, except for the payment of court costs;

(b) Except as provided in KRS 189.990(28), a person shall not be eligible to attend state traffic school who has been cited for a violation of KRS Chapters 177, 186, or 189 that has a penalty of mandatory revocation or suspension of an offender’s driver’s license;

(c) Except as provided in KRS 189.990(28), a person shall not be eligible to attend state traffic school for any violation if, at the time of the violation, the person did not have a valid driver’s license or the person’s driver’s license was suspended or revoked by the cabinet;

(d) Except as provided in KRS 189.990(28), a person shall not be eligible to attend state traffic school more than once in any one (1) year period, unless the person wants to attend state traffic school to comply with the driver education requirements of KRS 186.410; and

(e) The cabinet shall notify the sentencing court regarding any person who was sentenced to attend state traffic school who was ineligible to attend state traffic school. A court notified by the cabinet pursuant to this paragraph shall return the person’s case to an active calendar for a hearing on the matter. The court shall issue a summons for the person to appear and the person shall demonstrate to the court why an alternative sentence should not be imposed.

(6) (a) Except as provided in paragraph (b) of this subsection, a county attorney

may operate a traffic safety program for traffic offenders prior to the

adjudication of the offense.

(b) Offenders alleged to have violated KRS 189A.010 or 304.30-010, offenders holding a commercial driver’s license under KRS Chapter 281A, or offenders coming within the provisions of subsection (5)(b) or (c) of this section shall be excluded from participation in a county attorney-operated program.

(c) A county attorney that operates a traffic safety program:

1. May charge a reasonable fee to program participants, which shall only be used for payment of county attorney office operating expenses; and

2. Shall, by October 1 of each year, report to the Prosecutors Advisory Council the fee charged for the county attorney-operated traffic safety program and the total number of traffic offenders diverted into the county attorney-operated traffic safety program for the preceding fiscal year categorized by traffic offense.

(d) Each participant in a county attorney-operated traffic safety program shall, in addition to the fee payable to the county attorney, pay a twenty-five dollar ($25) fee to the court clerk which shall be paid into a trust and agency account with the Administrative Office of the Courts and is to be used by the circuit clerks to hire additional deputy clerks and to enhance deputy clerk salaries.

Section 2 KRS 15.720 is amended to read as follows:

(1) The Attorney General shall submit:

(a) To the Governor and to the General Assembly a biennial report setting forth the activities of the unified prosecutorial system for the preceding fiscal years; to be included in this report are the activities of the Prosecutors Advisory Council, an abstract of the annual report of the local prosecutors, and suggestions and recommendations for the uniform enforcement of the criminal laws of the Commonwealth; and

(b) To the Legislative Research Commission an annual report, by January 15 of each year, setting forth the total number of traffic offenders diverted into county attorney-operated traffic safety programs for the preceding fiscal year categorized by county and by traffic offense, and the fee charged by each county attorney-operated traffic safety program.

(2) Each Commonwealth’s attorney and county attorney shall be required by the council to submit such written reports as are determined necessary for the preceding calendar year.



Sixth Circuit Toasts Maker’s Mark By Todd McMurtry

Saturday, May 19th, 2012

Sixth Circuit Toasts Maker’s Mark By Todd McMurtry |

More Sharing ServicesShare|Share on aolmailShare on facebookShare on twitterShare on email.In Maker’s Mark v. Diageo North America, [read the decision here], the Sixth Circuit Court of Appeals wrote an entertaining opinion that even a non-lawyer will enjoy. This toast to Kentucky bourbon blends history and law in an enjoyable manner. The nineteen page opinion discusses whether the red dripping-wax seal found on every bottle of Maker’s Mark was a mark that could be protected as a trademark, and whether a brand of tequila that employed a similar wax seal infringed on that mark.


It is obvious that the Court had a great deal of interest in bourbon, and that it had dedicated as much time telling the story of Bourbon as it did in analyzing the legal issues of the case. Issued last week, the opinion explores the history of Bourbon from its creation at Ft. Harrod, Kentucky in 1774 to the emergence of the famous red dripping-wax seal found on bottles Maker’s Mark bourbon. The famous seal was created by Margie Samuels using the family’s deep fryer, and was first used on a Maker’s Mark bottle in 1958. It was ultimately registered as a trademark for the dripping-wax element of its trade dress in 1985.


The villain of this legal dispute is Jose Cuervo, which developed a premium tequila under the name “Reserva de la Familia” that incorporated a red wax seal. By 2001, Cuervo began marketing this tequila in the United States with a red dripping-wax seal over the cap of the bottle. Maker’s Mark sued claiming that Cuervo’s product infringed upon its trademark. Cuervo counterclaimed for cancellation of the mark.


A trademark is usually identified by the symbol ® and generally shows that a particular mark is unique. Trade dress is related to the physical appearance of a product. By law, such marks are afforded legal protections to secure their value. A mark, however, may be invalid if it is considered functional. This concept is more easily understood to mean that if there is no comparable alternative then an item may not be given trademark protections. Also, trademark protection may be denied where it would limit market competition.


Cuervo argued that the red dripping-wax was “aesthetically functional.” This means that although an attractive feature related to the physical appearance of the bottle, it is also a functional feature and not one for which a person could seek a trademark. The Court, however, concluded it was not functional finding that there were a number of ways to design around the seal (it did not limit market competition), that the seal could be blue or pink (a comparable alternative), and that it did not need to be in the form of dripping wax.


Instead, the Court found that the red dripping-wax was an “extremely strong” mark and that the Reserva de la Familia red wax seal infringed on it. So, in this battle of the bottles, Kentucky emerged the victor. We hope the attorneys for Maker’s Mark toasted the Sixth Circuit for its favorable ruling.


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



Saturday, May 19th, 2012

Thursday, May 17, 2012

FRANKFORT, Ky. — The justices of the Supreme Court of Kentucky unanimously voted Monday to elect Chief Justice John D. Minton Jr. to a second term as chief justice. The four-year term begins June 27. He was sworn in as Kentucky’s fifth chief justice on June 27, 2008, after being elected to the Supreme Court in 2006.

“With this re-election, the justices have expressed their appreciation for the hard work and leadership of Chief Justice Minton,” said Mary C. Noble, deputy chief justice for the Supreme Court. “We have an unusually close court that works together on all major issues under the guidance of our chief justice.”

Chief Justice Minton said he is honored to have the opportunity to continue serving his fellow Kentuckians. “I’m grateful to my colleagues for their strong vote of confidence,” he said. “All of the justices are former trial judges, which gives them unique insight into the work of the courts. More than ever before, the Supreme Court is involved in forming policy and the justices’ perspective and spirit of cooperation has been especially important in guiding the Judicial Branch during one of the most difficult times in recent memory.”

Under Chief Justice Minton’s administration, the Supreme Court adopted the state’s first uniform family law rules and formed the Kentucky Access to Justice Commission to improve access to civil legal aid for the poor. As a member of the Task Force on the Penal Code and Controlled Substances Act, Chief Justice Minton joined forces with the Executive and Legislative branches to curb prison costs and improve public safety. He supports transparent government and in 2009 led the Judicial Branch in posting its financial information on a public website shared with the Executive Branch.

Chief Justice Minton is steering the Judicial Branch through Kentucky’s worst economic downturn in decades by creating efficiencies at all four levels of the court system. Under his leadership, the Administrative Office of the Courts commissioned the National Center for State Courts to audit the AOC in an effort to achieve a leaner, more efficient organizational structure. Since the economic crisis began in 2008, Chief Justice Minton has made strategic reductions to keep the Judicial Branch within its appropriated budget.

As head of the Judicial Branch, he is committed to investing in the people who operate the court system and in the technology that can help Kentucky courts reduce costs and deliver better service. He formed the Technology Governance Committee to create a strategic technology plan for the courts and guide efforts to replace the outdated case management system with one that will allow e-filing and innovative electronic services. He also created a Compensation Commission to determine how to make the Judicial Branch’s salary structure more fair and competitive with the other branches of state government.

Chief Justice Minton is active in the Conference of Chief Justices as a board member and as chair of the Problem Solving Courts Committee. He is also on the board of directors for the Council of State Governments and is a 2010 alumnus of the CSG’s Henry Toll Fellowship Program. He is chair of the American Bar Association Board of Elections.


Comments From Colleagues


Sue Bell Cobb, Chief Justice of Alabama (ret.)

“Chief Justice Minton is respected by his fellow chief justices throughout the nation. There are two kinds of chief justices: the kind who limit their role to deciding cases on appeal and the kind who do important appellate work but then go on to work day and night, night and day, exhausting themselves trying to do everything in their power to improve the justice system. The latter perfectly describes Chief Justice Minton.”

Mary C. McQueen, President, National Center for State Courts

“The Kentucky courts are very fortunate to have the leadership of such a visionary as Chief Justice Minton. He combines a love for the law with compassion and an incredible commitment to justice and the rule of law.”

David A. Brennen, Dean, University of Kentucky College of Law

“Chief Justice Minton’s leadership of the Supreme Court has been outstanding during these difficult economic times. He has led the court through some of the toughest financial struggles of its history. Given that the court is facing even more budget reductions, the decision to re-elect Chief Justice Minton demonstrates a high degree of trust and respect for his leadership.”

Circuit Judge Paul F. Isaacs, Bourbon, Scott and Woodford Counties

President of the Kentucky Circuit Judges Association

“The Circuit Court judges look forward to continuing their working relationship with Chief Justice Minton. In these difficult days, it is very important that we all work together to preserve the integrity of our court system by our commitment to fairness and justice for every person in our courts. He has always exemplified that dedication to the rule of law.”

Chief District Judge Robert W. Heaton, Nelson County

President of the Kentucky District Judges Association

“Chief Justice Minton has done an outstanding job of leading the Court of Justice during a very trying time, including dealing with recurring budget cuts mandated by the legislature. He has had to make difficult decisions that ultimately are in the best interest of the court system as a whole. Throughout his first term as chief justice, he has remained accessible to all of the District Court judges. He is always willing to listen to our concerns and suggestions. It has been a pleasure to work with Chief Justice Minton and I look forward to working with him during his second term as chief justice.”

McLean County Circuit Court Clerk Stephanie King-Logsdon

President of the Kentucky Association of Circuit Court Clerks

“Chief Justice Minton has always provided tremendous support to the circuit court clerks as he understands the essential functions of our office. He is a man of great integrity and he possesses an exceptional knowledge and understanding of all levels of the court system. It has been an honor working with Chief Justice Minton over the years and I look forward to working with him in the future.”


Professional Background

In November 2006, Chief Justice Minton was elected to an eight-year term on the Supreme Court after running unopposed in the 2nd Supreme Court District, which is comprised of 14 counties in Western Kentucky. He first joined the Supreme Court in July 2006 when then-Gov. Ernie Fletcher appointed him to fill the unexpired term created by the June 30, 2006, retirement of Justice William S. Cooper. Before sitting on the Supreme Court, Chief Justice Minton had been a judge on the Kentucky Court of Appeals since November 2003.

He came to the appellate bench from the trial court where he was judge of Warren Circuit Court from 1992 to 2003. In addition to his trial court duties, he was appointed by then-Chief Justices Robert F. Stephens and Joseph E. Lambert as chief regional judge of the Green River Region, an administrative post that assists the chief justice with assigning special judges in a 21-county area of Southcentral Kentucky.

While on the Circuit Court bench, Chief Justice Minton was recognized for his leadership in forming Warren County Drug Court and for his commitment to law-related education programs. He was involved in continuing judicial education as a longtime member of the Kentucky Circuit Judges Association’s Education Committee. In 2003, the Kentucky Bar Association honored him with its Outstanding Judge Award.

Prior to his election to the circuit bench, Chief Justice Minton was in the private practice of law in Bowling Green for more than 15 years. He graduated from the University of Kentucky College of Law in 1977 and was admitted to the Kentucky bar that same year. He earned his bachelor’s degree with honors from Western Kentucky University in 1974 and is a 1970 graduate of Western’s University High School.

Chief Justice Minton and his wife, Susan Page Minton, reside in Bowling Green. Their daughter, Page Sullivan Minton, will graduate from Washington and Lee University (Va.) in May 2012 and their son, John D. Minton III, is a student at Centre College (Ky.).

Supreme Court of Kentucky

The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices 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 his or her fellow justices, is the administrative head of the state’s court system and is responsible for its operation.

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 employees and 403 elected justices, judges and circuit court clerks. The AOC executes the Judicial Branch budget and works closely with the chief justice to ensure the Kentucky Court of Justice fulfills its statutory duties as stated in the Kentucky Constitution.


Nick Nighswander – May Police Rely on Exigent Circumstances to Make a Warrantless Search?

Thursday, May 17th, 2012





In 2011 the United States Supreme Court reversed the Kentucky Supreme Court in the case of Kentucky v. King, 131 S. Ct. 1849 (2011), rev’g King v. Commonwealth, 302 S.W.3d 649 (Ky. 2010), which was the subject of one of our letters to you last year. The U.S. Supreme Court held that police may rely on exigent circumstances so long as “the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment . . . .” Kentucky v. King, 131 S. Ct. at 1858. The Kentucky Supreme Court re-considered the case on remand in its decision of April 26, 2012.


Lexington Police were chasing a suspected drug dealer into an apartment complex after observing a buy set up by a confidential informant. The police lost sight of the suspect when he entered the complex and thought the suspect had run into King’s apartment by hearing a door slam shut but did not see him enter King’s apartment.


Outside of King’s apartment, one of the police officers testified he detected a strong odor of marijuana coming from inside the apartment, which he also thought was the one he heard the door slam shut for. The officer then announced his presence “This is the Police”. Then upon hearing things being moved in the apartment, the police thought evidence was being destroyed and forcibly entered the apartment without a search warrant and found drugs and drug paraphernalia. King and the other occupants were then charged criminally.


King moved to suppress the search in the trial court. The motion was overruled on the basis that exigent circumstances existed for the police to justify their warrantless search under the Fourth Amendment to the U.S. Constitution. King appealed and the Kentucky Court of Appeals affirmed the trial court. The Kentucky Supreme Court granted discretionary review.

The Kentucky Supreme Court reversed in King I and granted the suppression motion and reasoned exigent circumstances no longer existed under the Fourth Amendment when the police announced their presence and any such exigency was police created. Thus, a warrant was needed by the police to search the apartment.


Kentucky then moved the U.S. Supreme Court to review the case. The U.S. Supreme Court agreed to hear the case on the issue of when does lawful police action impermissibly create an exigent circumstance which prevents a warrantless entry. The U.S. Supreme Court reversed and remanded the case back to the Kentucky Supreme Court on the basis that police may rely on exigent circumstances as long as they did not create the exigent circumstances. Kentucky v. King, 131 S.Ct. at 1858.


On remand, the Kentucky Supreme Court was to address whether an exigency actually existed for the police to enter King’s apartment without a warrant. The Kentucky Supreme Court in King II ruled that using an objective analysis of the record under the Fourth Amendment’s reasonableness standard the state could not show that exigent circumstances existed to justify a warrantless entry of King’s apartment by the police. The suppression of the drugs and drug paraphernalia found by the police was again upheld.


A full text of the Kentucky Supreme Court’s opinion can be found at:

This opinion is not yet final and cannot be cited as authority until then.

Know your rights and stay within the law. For more information about personal legal issues click on Read More


About Our Law Firm

Nicholas M Nighswander PLLC Attorney at Law was established to help clients with their personal legal problems. We do not represent big businesses and corporations. Your legal problem is our problem and we want to have a positive impact with you in doing the best to solve it.

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Florence, Kentucky 41042

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The KBA Bar Counsel’s Office Seeks Punishment of Deters on allegation he is seeking the Overthrow of the Government! We have found no rule that makes the KBA the regulator of our political thought and speech.

Thursday, May 17th, 2012


By LawReader Senior Editor Stan Billingsley

The Bar Counsel’s office, actually accused Eric Deters for calling for the “overthrow of our government”.

Deters went on radio on Monday and Tuesday (May 14,15) to defend himself against the actions of the KBA Bar Counsel’s office attempt to limit his political speech.

Jay Garrett, and the Bar Counsel’s Office has opposed the 61 day suspension imposed upon Eric Deters by the Board of Governors and by the Ky. Supreme Court. After Deters was acquitted of l5 of l9 counts filed against him by the Bar Counsel, Garrett has attempted to increase the period of suspension imposed by the Supreme Court. The Bar Counsel has filed additional charges against Deters and now attacks his political speech statements made on radio.

Garrett filed an objection to Deters automatic reinstatement after he was sentenced to serve the 61 day period of suspension imposed by the Ky. Supreme Court. The Character and Fitness committee granted Deters now must conduct an investigation and provide Deters  a hearing, but never-the- less the action of the Bar Counsel has extended Deters period of suspension sentence and he will not be reinstated until the Committee takes action on Garrett’s motion. It is presumed that their ruling will be reviewed by the Ky. Supreme Court. This could further delay Deters reinstatement.

Deters on the radio show he hosts, called on people to march to Washington and to carry their guns (enforcing their 2nd Amendment rights).” “I called for a new American revolution. I never said the marchers should take bullets with them.”

Deters apparently joked on this subject, and said on radio that “We won’t take ammo, but we would scare the hell out of them. I want reform not overthrow, I love America.”

The context of this comment on radio appears to be nothing more than political satire, but the actual words are not far different from statements made by Patrick Henry in 1775 calling on the State of Virginia to join the Revolution against the English King.

“This is no time for ceremony. The question before the House is one of awful moment to this country. For my own part I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty towards the majesty of heaven, which I revere above all earthly kings.”

“If we wish to be free — if we mean to preserve inviolate those inestimable privileges for which we have been so long contending — if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!”

“Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!” Patrick Henry – March 23, 1775

We note that Patrick Henry was a lawyer. The State of Virginia did not disbar him for his comments!

The KBA apparently seeks to regulate Deters political speech and to use his politics to deny him reinstatement to practice law.

The statements made by Deters on his radio show were political comments. I personally disagree with Deters on many political issues.  I have not found any Supreme Court Rule which allows the regulation of lawyer’s political free speech.

The KBA has already sought to punish another attorney for a letter he wrote to the Legislative Ethics Commission criticizing their legal reasoning in dismissing ethics charges against Senate President David Williams. We find no basis in the Supreme Court Rules which direct the KBA and the Bar Counsel to seek to sanction lawyers for their political speech.

If Deters has violated any law, how is it within the jurisdiction of the KBA to use their claim against Deters in the Character and Fitness Committee review of his character?   Deters has never been charged with calling for overthrow of the government. The jurisdiction of the BA to regulate political speech is highly questionable.   Such accusations usually are introduced by  prosecutors with the  intent to poison the minds of a jury or an administrative body in a hearing. If this was a court of law it surely would have been striken from the record.

For god’s sake, They are seeking to suspend a lawyer for making political statements on an AM radio station!! He even said on radio that he was cancelling his idea for a march on Washington.

The Character and Fitness Committee may be called on to rule in this case. It is possible that the Supreme Court may have to review these issues.

We suggest that this issue raised by the Bar Counsel, presents a wonderful opportunity for the Character and Fitness Committee and the Supreme Court to reject this attempt of the Bar Counsel’s office to make the KBA the regulators of political thought and speech of Kentucky lawyers.


May 18, 2012  – Retired Law School Proffessor:   “It is time to FIRE all people at the KBA who handle any aspect of lawyer discipline and to start FRESH with lawyer discipline.


Wednesday, May 16th, 2012



New COAKY Decision Distinguishes Negligent Hiring/Retention Claim from Respondeat Superior, Discusses Imposition of Punitive Damages Against Employer for Acts of Employee

By David Kramer |


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A recent decision of the Kentucky Court of Appeals (by Judge James Lambert) in Allgeier v. MV Transportation, Inc., 2010-CA-001907, issued 5/11/2012, discussed the difference between respondeat superior and negligent hiring/supervision claims, as well as the availability of punitive damages from an employer for the acts of an employee.


The Court held that the fact that an employer admits vicarious liability does not prevent a plaintiff from pursuing other claims on theories of direct negligence by the employer, including negligent hiring, training, supervision or retention. The Court explained that there is a definite distinction between an employer’s direct liability and vicarious liability such that both claims could proceed simultaneously, and rejected what the opinion suggested was a minority view to the contrary.


The case also discussed what must be proven in order for an injured party to recover punitive damages on a gross negligence claim against a principal or employer for the act of an agent or employee. The Court held that the injured party must show, by clear and convincing evidence, that the principal or employer authorized, ratified, or anticipated the conduct that caused injury. The trial court had dismissed the gross negligence/punitive damages claim by summary judgment. The Court of Appeals held that under the circumstances of this case the principal had effectively authorized or ratified the actions of the employee, and therefore remanded the case to the trial court for retrial on punitive damages.


The case is not yet final but was designated for publication in the South Western Reporter. Cases that are not final may not be cited as authority in Kentucky.


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


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Wednesday, May 16th, 2012





The Kentucky Office of Bar Admissions has issued a notice of a job opening for the position of director/general counsel. The deadline for applications is May 31, 2012. For more information on general duties and experience required, click here.











The Judicial Conduct Commission announces the search for an Executive Secretary. The deadline for applications is June 15, 2012.


For more information on general duties and experience required, click here.







Wednesday, May 16th, 2012