Archive for May, 2012

DEFINITION OF “JACKWAGON” BY KBA BAR COUNSEL – punishment sought for attorney who applied this term to the Bar Counsel

Tuesday, May 15th, 2012

A Kentucky attorney publically referred to a bar counsel official as a “jackwagon”…the Bar Counsel official in a brief, referred to the Urban Dictionary to define the term. The KBA Bar Counsel argues that this description of a bar counsel’s office attorney is improper under SCR 3.130(8.2).

“Urban Dictionary: jackwagon – 1. jackwagon a crybaby loser pussy-type who needs to grow some cajones and start acting like a man – means you are a loser and that you have no self confidence and that you live in mamby-pamby land…”

The Supreme Court Rule limits the rights of a Kentucky attorney to make false, or reckless but true statements concerning a judge or public legal officer. The constitutionality of this rule is currently before the 6th. Cirt. Court of appeals in two different cases.

The rule states:

 

SCR 3.130(8.2) Judicial and legal officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

(b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.

HISTORY: Adopted by Order 89-1, eff. 1-1-90

 

The appellate court has been asked to review whether or not it is unconstitutional to restrict the right of an attorney to make a true statement if the statement is determined to be reckless.

To be upheld the KBA must show that this restriction on free speech serves a “compelling state interest”.

 

The old theory in defamation law that truth is an absolute defense, apparently doesn’t apply to Kentucky lawyers under this rule.

 

The rule doesn’t specify who gets to make the call that any statement is “reckless”. It appears that any statement an attorney makes is reckless, but any statement the Bar Counsel makes about an attorney is okay.

 

This vaguely worded rule is highly subjective in its interpretation and demonstrates a problem found throughout the rules of conduct for attorneys found in the Supreme Court Rules.

 

SUPREME COURT DIVIDED OVER ATTORNEY FEES ISSUE – JUSTICES SCHRODER AND SCOTT OPPOSE DUES INCREASE

Tuesday, May 15th, 2012

SUPREME COURT DIVIDED OVER ATTORNEY FEES ISSUE

Last week LawReader reported on the dues increase approved by the Sup. Ct. which was less than requested by the KBA.

Justices Schroder and Scott joined in a dissent and opposed any increase in dues. They particularly opposed the Court’s decision to deny the request to raise KBA dues for members of the Judiciary.

We note that at a time the Judiciary is having budget problems due to the cuts made by the Legislature, that the KBA is seeking a large increase in bar dues, and is in fact increasing the budget of the Bar Counsel’s Office by more than $100,000.

The decision of the Supreme Court did refuse to grant the entire dues increase sought by the KBA. The KBA is funded by dues mandated of all Kentucky lawyers and judges.

Excerpts from Courier-Journal article:

Dues process: Kentucky judges pay discounted bar fees

Written by Andrew Wolfson The Courier-Journal May 15, 2012

Over the vehement objection of one of its own members, who called it “morally offensive,” the Kentucky Supreme Court has preserved a break for judges that allows them to pay less than half the annual bar dues of practicing lawyers.

The justices rebuffed a Kentucky Bar Association proposal that called for equalizing dues for lawyers and judges after the bar found “no empirical evidence” that judges make less than practicing lawyers.

In a heated dissent, Justice Wil Schroder said the discount for judges made sense when they were poorly paid and presided largely as a public service, but now their salaries are equal, or in some cases greater, than lawyers in private practice.

“I find it morally offensive that we should be treated as a privileged class,” Schroder said in dissenting from a Supreme Court order rejecting the Kentucky Bar Association’s recommendation to treat lawyers and judges alike. “We are all lawyers and members of the same bar association.”

The court voted 5-2 on April 27 to raise annual dues by $40 for both judges and lawyers practicing for five or more years, maintaining the difference between them. The fee for judges was raised to $150 from $110 and for experienced lawyers to $310 from $270.

The $220 fee for lawyers with less than five years in practice was not changed. The increases are effective July 1.

In an interview, Chief Justice John D. Minton Jr. defended the court’s vote, saying that especially with recent budget cuts for the judiciary, it would have been a “devastating blow” to nearly triple the bar dues for judges, whom he said haven’t had a raise for seven years.

Minton also noted that judges aren’t eligible for many of the services offered by the KBA, including free continuing legal education; judges must take their own specialized classes. They are also disciplined by a separate commission.

“Most judges feel like they don’t get much from the KBA,” said Nelson County District Judge Robert Heaton, who is president of the state district judge association.

Citing figures published last year in the ABA Journal, the KBA said in a report that the average lawyer in Louisville, Lexington, Bowling Green, Henderson, Owensboro and Hopkinsville earns between $85,000 and $105,000 a year, while district judges are paid $112,668 and circuit judges $124,620.

All lawyers must belong to the state bar association, which has 17,221 members.

If judges had been required to pay the same fee as lawyers, it would have generated about $60,000 in additional revenue.

Schroder, of Covington, who was elected to the court in 2006 and has served as a judge for 27 years, joined Justice Will T. Scott in opposing any increase in bar dues.

Schroder said he found it “very disturbing” that the bar was “trying to immunize itself from the economic downturn by increasing the financial burden on its members, rather than cutting costs.”

Scott, who is running for re-election, wrote: “I dissent from any increase in the dues for attorneys and judicial members, except for my own, which I … will gladly pay.”

Requesting an increase to $350 from $270 a year for experienced members — and $350 for judges — the KBA said it needed a dues increase, its first since 2004, to cover energy, maintenance, insurance and employee retirement and health care.

(LawReader note: The KBA did not mention the large increase in the budget of the Bar Counsel’s Office’s office. The Bar Counsel’s office contains nine full time attorneys (currently with one vacancy) yet they are spending dues money to hire outside counsel in several cases in Federal Court. One of the cases seeks to limit the free speech rights of attorneys. In light of the budget cuts in the Judiciary, a budget cut to the Bar Counsel would certainly have been prudent.)

 

 

 

DEPARTMENT OF JUSTICE IS EXAMINING STATE BAR RULES WHICH GIVE LAWYERS A MONOPOLY ON WHAT IS CONSIDERED “PRACTICE OF LAW”

Monday, May 14th, 2012

UNITED STATES OF AMERICA

Department Of Justice

Washington, DC 20530

 

 

 

 

January 25, 2008

via facsimile (808-539-4801) and first-class mail

Judiciary Public Affairs Office

417 South King Street

Honolulu, HI 96813

 

 

 

Re: Comments on Proposed Definition of the Practice of Law

 

Dear Sir or Madam:

 

The Justice Department and the Federal Trade Commission (“FTC”) are pleased to provide comments on the proposed addition to the rules of the Supreme Court of Hawai’i (“the proposal” or “the proposed rule”) in which the Hawai’i State Bar Association (“HSBA”) requests that the Court create a new rule to define the practice of law. If adopted, the proposed rule would bar non-lawyers from competing with lawyers for a range of services and could unnecessarily increase the prices paid by Hawaiians for those services.1

 

The Justice Department and the FTC believe that the definition of the practice of law should be limited to activities for which specialized legal knowledge and training is demonstrably necessary to protect consumers and an attorney-client relationship is present. We are concerned that the proposal will unduly restrict non-lawyers from competing with lawyers because it defines the practice of law in broad terms, including:

 

giving advice or counsel to another person about the person’s legal rights and obligations;

performing legal research;

selecting, drafting, or completing documents that affect the legal rights of another person; and

negotiating legal rights or obligations . . . on behalf of another person.2

To some extent, the proposed rule preserves lawyer/non-lawyer competition by creating exceptions for services that non-lawyers may provide, regardless of whether they fall within the proposed definition.3 While such exceptions are desirable, they cannot capture every situation where competition from non-lawyers would benefit consumers.

 

The broad, general definition in the proposal therefore would likely force Hawaiians who would not otherwise hire a lawyer to do so by limiting the resources consumers may rely upon to obtain legal information. This could preclude use of a number of services that provide reasonable options for some consumers, such as:

 

tenants’ associations informing renters of landlords’ and tenants’ legal rights and responsibilities, often in the context of resolving a particular landlord-tenant dispute;

 

 

lay organizations, advocates, and consumer associations providing citizens with information about legal rights and issues and helping them negotiate solutions to problems; and

 

 

human resources management and other specialists advising employers about employment discrimination and sexual harassment rules, as well as federal, state and local labor, immigration, zoning, safety and other regulatory compliance issues.4

In what follows, we provide background information and further explanation of our concerns, and then suggest particular language to limit the proposed definition to services where specialized legal skills are required and an attorney-client relationship is present.

 

The Interest and Experience of the U.S. Department of Justice and the Federal Trade Commission

 

The Justice Department and the FTC are entrusted with enforcing the federal antitrust laws. We work to promote free and unfettered competition in all sectors of the American economy. The United States Supreme Court has observed that “ultimately competition will produce not only lower prices, but also better goods and services. ‘The heart of our national economic policy long has been faith in the value of competition.’”5 Like all consumers, consumers of professional services benefit from competition,6 and if competition to provide such services is restrained, consumers may be forced to pay higher prices or accept services of lower quality.

 

The Justice Department and the FTC are concerned about efforts across the country to prevent non-lawyers from competing with lawyers through the adoption of excessively broad unauthorized practice of law restrictions by state courts and legislatures. Some of these proposals appear to be little more than overt attempts by lawyers to eliminate competition from alternative, lower-cost non-lawyer service providers; others, while appearing to be good faith efforts to protect consumers, have not been tailored narrowly enough to avoid unnecessary harm to competition. In addressing these concerns, the Justice Department and the FTC encourage competition through advocacy letters and amicus curiae briefs filed with state supreme courts. Through these letters and filings, the Justice Department and the FTC have urged states, the American Bar Association, and state bar associations to reject or narrow proposed restrictions on competition between lawyers and non-lawyers.7 Separately, the Justice Department has obtained injunctions prohibiting bar associations from unreasonably restraining competition by non-lawyers in violation of the antitrust laws.8 Our comments on the proposed rule are part of our ongoing efforts in this area.

 

Restrictions on Competition Should Be Closely Examined

to Determine Whether They Are in the Public Interest

 

Restrictions on competition generally are harmful to consumers. Such restrictions are in the public interest only if they are needed to achieve some overriding benefit — such as preventing significant consumer harm from the provision of services by providers who lack the requisite knowledge and training — and are narrowly drawn to minimize their anticompetitive impact.9 The Justice Department and the FTC recognize that there are some services that should be provided only by lawyers because they require legal knowledge and training. For example, only someone who understands law and litigation procedures should represent clients in open court in matters involving their legal rights. Such a requirement protects consumers as well as the court. But consumers also benefit when non-lawyers compete with lawyers to provide many other services that do not require legal training, knowledge or skills.10 Allowing non-lawyers to provide such services permits consumers to select from a broader range of options, considering for themselves such factors as cost, convenience, and the degree of assurance that the necessary documents and commitments are sufficient. As the United States Supreme Court stated:

 

The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain – quality, service, safety, and durability – and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers.11

Sound competition policy calls for any restriction on competition to be justified by a valid need, such as protecting the public from harm, and for the restriction to be narrowly drawn to minimize its anticompetitive impact.12 The inquiry into the public interest involves not only an assessment of the harm that consumers may suffer from allowing non-lawyers to perform certain tasks, but also consideration of the benefits that accrue to consumers when lawyers and non-lawyers compete.13

 

The Justice Department and the FTC are not aware of evidence of consumer harm arising from non-attorneys providing services such as those referenced above that do not require the skill or knowledge of a lawyer but may still fall within the scope of the Rule.14 In the absence of such evidence, we believe that the definition of the practice of law proposed by the HSBA unnecessarily limits competition between lawyers and non-lawyers and likely will cause more harm to consumers than it will prevent. Accordingly, the proposed definition is not in the public interest.

 

Evidence suggests that lay people can and do competently perform many of the services that the Rule would limit to lawyers.15 Academic research indicates that consumers likely face little risk of harm from non-lawyer competition in many areas. For example, studies of lay specialists who provide bankruptcy and administrative agency hearing representation find that they perform as well as or better than lawyers.16 Similarly, a study comparing five states where lay providers examined title evidence, drafted instruments, and facilitated the closing of real estate transactions with five states that prohibited lay provision of such services found, “The only clear conclusion . . . is that the evidence does not substantiate the claim that the public bears a sufficient risk from lay provision of real estate settlement services to warrant blanket prohibition of those services under the auspices of preventing the unauthorized practice of law.”17

 

If non-lawyers were barred from providing the services encompassed by the proposed rule, fees for those services likely would rise. Consumers who otherwise would receive assistance from non-lawyer service providers — tenants’ associations, lay organizations, and others — would be forced to choose between hiring a lawyer and going without assistance altogether. The potential harm from increasing the cost for these services may deter some consumers from seeking assistance of any kind. A 1996 ABA task force survey concluded that low income and middle-income households were underserved by the legal system, with cost being a major reason why these groups avoided the legal system.18

 

Even Hawaiians who would choose a lawyer over a lay service provider likely will pay higher prices if the proposed rule is adopted. Evidence gathered in a New Jersey Supreme Court proceeding indicated that, in communities in New Jersey where non-lawyers frequently competed with lawyers to close real estate transactions, buyers represented by counsel paid on average $350 less for closings, and sellers represented by counsel paid $400 less, than in the New Jersey communities where lay closings were not prevalent.19 Likewise, the Kentucky Supreme Court concluded that prices for real estate closings by lawyers dropped substantially—by as much as one percent of the loan amount plus fees—as a result of competition from lay title companies, explaining that the lay competitors’ presence “encourages attorneys to work more cost-effectively.”20 And, in Virginia, where the legislature passed a law upholding the right of consumers to continue using lay closing services, proponents of lay competition presented survey evidence suggesting that lay closings in Virginia cost on average $150 less than lawyer closings.21

 

Restrictions on Lawyer/Non-Lawyer Competition Should Be Limited

to Services Provided Pursuant to an Attorney-Client Relationship

 

The difficulties identified above could be addressed with a relatively simple change in the proposed rule. The proposed rule appears to be overbroad because it would bar non-lawyers from providing services in certain instances where it is apparent that specialized legal skills are not required. In instances where specialized legal skills are required, an attorney-client relationship generally will exist. To preserve competition, and to benefit consumers, the Court should consider adopting language similar to that found in Rule 49 of the District of Columbia Court of Appeals. Rule 49 defines the practice of law as “the provision of professional legal advice or services where there is a client relationship of trust or reliance.”22 The Commentary to Rule 49 makes clear that giving advice or counsel to others as to legal rights or responsibilities is not necessarily the practice of law. Rather, such services may be the practice of law if they are provided in the context of an attorney-client relationship. The Commentary explains:

 

As originally stated in sections (b)(2) and (3) of the prior Rule, the “practice of law” was broadly defined, embracing every activity in which a person provides services to another relating to legal rights. This approach has been refined, in recognition that there are some legitimate activities of non-Bar members that may fall within an unqualifiedly broad definition of the law. The definition set forth in section (b)(2) is designed to focus first on the two essential elements of the practice of law: The provision of legal advice or services, and a client relationship of trust or reliance. . . . The presumption that one’s engagement in one of the enumerated activities is the “practice of law” may be rebutted by showing that there is no client relationship of trust or reliance, or that there is no explicit or implicit representation of authority or competence to practice law, or that both are absent. . . . [T]he Rule is not intended to cover conduct which lacks the essential features of an attorney-client relationship. . . . Tax accountants, real estate agents, title company attorneys, securities advisors, pension consultants, and the like, who do not indicate they are providing legal advice or services based on competence and standing in the law are not engaged in the practice of law, because their relationship with the customer is not based on a reasonable expectation that learned and authorized professional legal advice is being given. Nor is it the practice of law under the Rule for a person to draft an agreement or resolve a controversy in a business context, where there is no reasonable expectation that she is acting as a qualified or authorized attorney. . . .23

Adding the requirement of an attorney-client relationship and similar commentary to the proposed rule would protect consumers from harm caused by persons engaged in the unauthorized practice of law, while also preserving lawyer/non-lawyer competition that benefits consumers.24

 

Our suggestion that the Court adopt language similar to that found in Rule 49 when defining the practice of law — specifically, that the elements of an attorney-client relationship must be present for activity to be the practice law — is consistent with Court precedent. Like the Hawai’i legislature, this Court has not formally defined the practice of law. Instead, this Court has examined, on a case-by-case basis, whether conduct has violated Section 605-14 of the Hawai’i Revised Statutes. In the reported opinions, this Court has determined that various activities constitute the practice of law, including: (1) filing legal pleadings such as complaints, claims, and objections to motions, on behalf of another;26 (2) claiming to represent a client in a letter to a lawyer, and signing the letter as “attorney for;”27 (3) agreeing to represent a client, accepting retainer fees, appearing before a government agency and in court on the client’s behalf, and preparing and signing a motion to continue a case on the client’s behalf;28 and (4) analyzing briefs and other papers submitted by parties to litigation, planning appeal strategy, and preparing a statement of position in anticipation of mediation, all on behalf of another.29 In each of these cases, there appears to have been a relationship of trust or reliance and a representation of authority or competence to practice law. Thus, the conduct this Court found unlawful under Section 605-14 would still constitute the unauthorized practice of law under our proposal.

 

Conclusion

The choice of whether to use a lawyer or non-lawyer service provider should rest with the consumer unless it is clear that specialized legal skills or training are required. Lawyer/non-lawyer competition benefits consumers, particularly when there is no evidence that consumers have been harmed by non-lawyer service providers. We urge the Court to revise the proposed rule to preserve competition in service areas for which the knowledge and skill of a lawyer is not required.

 

The Justice Department and the FTC thank you for this opportunity to present our views. We would be pleased to address any questions or comments regarding this letter.

 

 

 

Sincerely yours,

 

 

/s/

Thomas O. Barnett

Assistant Attorney General

/s/

Aaron Comenetz

Trial Attorney

United States Department of Justice

Antitrust Division

 

By direction of the

Federal Trade Commission,

 

/s/

 

Deborah Platt Majoras

Chairman

 

/s/

Maureen K. Ohlhausen

Director

Office of Policy Planning

 

 

 

 

 

——————————————————————————–

 

FOOTNOTES

 

1. This letter focuses on the effects of the proposed rule on consumer welfare, and does not address whether the proposed rule and potential competitive restraints arising from enforcement under it would be immunized from the federal antitrust laws under the state action doctrine.

 

2. Proposed Rule __(b).

 

3. See Proposed Rule __(c). The exceptions include situations when an individual: (1) appears pro se; (2) “act[s] as a representative when authorized by law or by a government agency;” (3) serves as a mediator, conciliator or facilitator; (4) serves as in-house counsel pursuant to certain restrictions; (5) engages in legislative lobbying; (6) sells legal forms; (7) serves as a negotiator for an employee organization or employer; (8) serves as a clerk to a judge, justice or member of the Bar; or (9) serves as a paralegal under the supervision of a judge, justice or member of the Bar.

 

4. Depending on how exception (c)(2) of the proposed definition (which permits non-lawyers to act as a representative when authorized by law or government agency) and relevant statutes and rules are construed, the definition may also bar non-lawyer competition for the provision of services in other areas.

 

5. Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 695 (1978) (quoting Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951)); accord FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 423 (1990).

 

6. See, e.g., Prof’l Eng’rs, 435 U.S. at 689; Goldfarb v. Virginia State Bar, 421 U.S. 773, 787 (1975); see also United States v. Am. Bar Ass’n, 934 F. Supp. 435 (D.D.C. 1996), modified, 135 F. Supp. 2d 28 (D.D.C. 2001).

 

7. See letter from the Justice Department to the Wisconsin Supreme Court (December 10, 2007); letters from the Justice Department and the FTC to the Committee on the Judiciary of the New York State Assembly (April 27, 2007 and June 21, 2006); letter from the Justice Department and the FTC to Executive Director of the Kansas Bar Ass’n (Feb. 4, 2005); letter from the Justice Department and the FTC to Task Force to Define the Practice of Law in Massachusetts, Massachusetts Bar Ass’n ( Dec. 16, 2004); letter from the Justice Department and the FTC to Unauthorized Practice of Law Committee, Indiana State Bar Ass’n (Oct. 1, 2003); letter from the Justice Department and the FTC to Standing Committee on the Unlicensed Practice of Law, State Bar of Georgia (Mar. 20, 2003); letters from the Justice Department to Speaker of the Rhode Island House of Representatives and to the President of the Rhode Island Senate, et al. (June 30, 2003 and Mar. 28, 2003); letter from the Justice Department and the FTC to Task Force on the Model Definition of the Practice of Law, American Bar Ass’n (Dec. 20, 2002); letter from the Justice Department and the FTC to Speaker of the Rhode Island House of Representatives, et al. (Mar. 29, 2002); letter from the Justice Department and the FTC to President of the North Carolina State Bar (July 11, 2002); letter from the Justice Department and the FTC to Ethics Committee of the North Carolina State Bar (Dec. 14, 2001); letter from the Justice Department to Board of Governors of the Kentucky Bar Ass’n (June 10, 1999 and Sept. 10, 1997); letter from the Justice Department and the FTC to Supreme Court of Virginia (Jan. 3, 1997); letter from the Justice Department and the FTC to Virginia State Bar (Sept. 20, 1996). Brief Amicus Curiae of the United States of America and the FTC in Lorrie McMahon v. Advanced Title Servs. Co. of W. Va., No. 31706 (filed May 25, 2004), available at http://www.usdoj.gov/atr/cases/f203700/203790.htm; Brief Amicus Curiae of the United States of America and the FTC in On Review of ULP Advisory Opinion 2003-2 (filed July 28, 2003), available at http://www.usdoj.gov/atr/cases/f201100/201197.htm; Brief Amicus Curiae of the United States of America in Support of Movants Kentucky Land Title Ass’n et al. in Ky. Land Title Ass’n v. Ky. Bar Ass’n, No. 2000-SC-000207-KB (Ky., filed Feb. 29, 2000), available at http://www.usdoj.gov/atr/cases/f4400/4491.htm. The letters to the American Bar Association, Wisconsin, Indiana, New York, Rhode Island, Massachusetts, North Carolina, Georgia, Kansas, and Virginia may be found on the Justice Department’s website, http://www.usdoj.gov/atr/public/comments/comments.htm.

 

8. In United States v. Allen County Bar Ass’n, the Justice Department sued and obtained a judgment against a bar association that had restrained title insurance companies from competing in the business of certifying titles. The bar association had adopted a resolution requiring lawyers’ examinations of title abstracts and had induced banks and others to require the lawyers’ examinations of their real estate transactions. Civ. No. F-79-0042 (N.D. Ind. 1980). In United States v. N.Y. County Lawyers Ass’n, the Justice Department obtained a court order prohibiting a county bar association from restricting the trust and estate services that corporate fiduciaries could provide in competition with lawyers. No. 80 Civ. 6129 (S.D.N.Y. 1981). See also United States v. County Bar Ass’n, No. 80-112-S (M.D. Ala. 1980). In addition, the Justice Department has obtained injunctions against other anticompetitive restrictions in professional associations’ ethical codes and against other anticompetitive activities by associations of lawyers. See, e.g., United States v. Am. Bar Ass’n, 934 F. Supp. 435; Prof’l Eng’rs, 435 U.S 679; United States v. Am. Inst. of Architects, 1990-2 Trade Cas. (CCH) ¶ 69,256 (D.D.C. 1990); United States v. Soc’y of Authors’ Reps., 1982-83 Trade Cas. (CCH) ¶ 65,210 (S.D.N.Y. 1982).

 

9. Cf. FTC v. Indiana Federation of Dentists, 476 U.S. 447, 459 (1986) (“Absent some countervailing procompetitive virtue,” an impediment to “the ordinary give and take of the marketplace cannot be sustained under the Rule of Reason.”) (internal quotations and citations omitted).

 

10. “Several jurisdictions recognize that many such [law-related] services can be provided by nonlawyers without significant risk of incompetent service, that actual experience in several states with extensive nonlawyer provision of traditional legal services indicates no significant risk of harm to consumers of such services, that persons in need of legal services may be significantly aided in obtaining assistance at a much lower price than would be entailed by segregating out a portion of a transaction to be handled by a lawyer for a fee, and that many persons can ill afford, and most persons are at least inconvenienced by, the typically higher cost of lawyer services. In addition, traditional common-law and statutory consumer-protection measures offer significant protection to consumers of such nonlawyer services.” Restatement (Third) of Law Governing Lawyers § 4 cmt. c (2000).

 

11. Prof’l Eng’rs, 435 U.S. at 695 (emphasis added); accord, Superior Court Trial Lawyers Ass’n, 493 U.S. at 423.

 

12. Cf. FTC. v. Ind. Fed’n of Dentists, 476 U.S. 447, 459 (1986) (“Absent some countervailing procompetitive virtue,” an impediment to “the ordinary give and take of the market place . . . cannot be sustained under the Rule of Reason.”) (internal quotations and citations omitted).

 

13. See Prof’l Eng’rs, 435 U.S. at 689; Goldfarb v. Va. State Bar, 421 U.S. 773, 787 (1975). See also In re Opinion No. 26 of the Comm. on Unauthorized Practice of Law, 654 A.2d 1344, 1345-46 (N.J. 1995) (lawyer/non-lawyer competition benefits the public interest).

 

14. The letter from the HSBA to the Court that accompanied the proposal states that the HSBA has “examined the various issues, complaints and concerns regarding the unauthorized practice of law.” Letter from Jeffrey S. Portnoy, President, Hawai’i State Bar Association, to The Honorable Ronald T.Y. Moon, Chief Justice, Supreme Court of Hawai’i (July 23, 2007), at http://64.29.92.27/. Yet the letter provides no information on the content of those issues, complaints and concerns, nor data showing that any such harm occurs to a meaningful extent. See id. Nor does the letter suggest that whatever harm might occur would outweigh the benefits consumers derive from the ability to obtain services from lay providers as an alternative to lawyers. Id.

 

15. Significantly, a 1999 survey found that in most states complaints about the unauthorized practice of law did not come from consumers, the potential victims of such conduct, but from attorneys, who did not allege any claims of specific injury. Deborah Rhode, Access to Justice: Connecting Principles to Practice, 17 Geo. J. Legal Ethics 369, 407-08 (2004).

 

16. Deborah Rhode, Access to Justice: Connecting Principles to Practice, 17 Geo. J. Legal Ethics 369, 407-08 (2004). See also Herbert M. Kritzer, Legal Advocacy: Lawyers and Non Lawyers at Work 50-51 (1998) (finding that in unemployment compensation appeals before the Wisconsin Labor and Industry Review Commission, “[t]he overall pattern does not show any clear differences between the success of lawyers and agents”).

 

17. Joyce Palomar, The War Between Attorneys and Lay Conveyancers — Empirical Evidence Says “Cease Fire!”, 31 Conn. L. Rev. 423, 520 (1999).

 

18. Am. Bar Ass’n Fund for Justice & Ed., Legal Needs & Civil Justice: A Survey of Americans (1996). The most common legal needs reported by respondents were related to personal finances, consumer issues, and housing. For low- and middle-income households, the most common response to a legal problem was “handling the situation on their own.” For low-income households, the second most common response was to take no action at all. The second-most common response for middle-income households was to use the legal system, including contacts with lawyers, mediators, arbitrators, or official hearing bodies.

 

19. See In re Opinion No. 26 of the Comm. on Unauthorized Practice of Law, 654 A.2d 1344, 1348-49 (N.J. 1995).

 

20. See, e.g., Countrywide Home Loans, Inc. v. Ky. Bar Ass’n, 113 S.W.3d 105, 120 (Ky. 2003) (“before title companies emerged on the scene, [the Kentucky Bar Association's] members’ rates for such services were significantly higher”).

 

21. See letters to the Virginia Supreme Court and Virginia State Bar, supra n.7.

 

22. D.C. Court of Appeals Rule 49(b)(2) (2004) (outline letters omitted) (emphasis added).

 

23. Id. Commentary on Rule 49(b)(2).

 

24. If the State Bar is concerned that consumers may not always know that the special skills of a lawyer are required for a particular task, and thus might unknowingly rely on non-lawyers for services that require legal skills, a notice requirement applicable to the particular settings in which the concern arises could be established. For example, the New Jersey Supreme Court addressed concerns about non-lawyer provision of services at real estate closings not by banning non-lawyer closing services but by requiring merely that consumers be provided a written notice explaining the risks involved in proceeding in a real estate transaction without a lawyer.

 

25. In re Opinion No. 26, 654 A.2d at 1363.

 

26. In re Ellis, 522 P.2d 460, 461-62 (Haw. 1974).

 

27. Fought & Co. v. Steel Eng’g & Erection, Inc., 951 P.2d 487, 495-96 (Haw. 1998) (citing State v. Gilbert, 708 P.2d 138 (Haw. 1985)).

 

28. Office of Disciplinary Counsel v. Lau, 941 P.2d 295, 295-96, 298 (Haw. 1997).

 

29. Fought & Co., 951 P.2d at 496 (Haw. 1998). In Fought & Co., the Court examined the legislative history of Sections 605-14 and 605-17 of the Hawai’i Revised Statutes that prohibit and criminalize the unlicensed practice of law. 951 P.2d at 495-96. The Hawai’i legislature stated that it was not feasible to define specific types of services as the practice of law because societal changes “continually create new concepts and new legal problems” Id. at 495 (quoting Sen. Stand. Comm. Rep. No. 700, in 1955 Senate Journal at 661; Hse. Stand. Comm. Rep. No. 612, in 1955 House Journal at 783), and therefore expressly declined to adopt a definition of the practice of law when drafting the statutes. Id. However, the legislature observed that the practice of law includes, among other things, “the preparation of any document or the rendition of any service to a third party affecting the [party's] legal rights, where such advice, drafting or rendition of service requires the use of any degree of legal knowledge, skill or advocacy.” Id. Given its refusal to define the practice of law in the statute, it seems likely that the legislature intended its commentary as guidance on the scope of activities that may be the practice of law, but did not intend that all activities within that scope be deemed the practice of law.

 

 

This site is brand new and we have many helpful topics that will soon be included.

 

Please email us with your thoughts- we need to hear from you!

 

SUPREME COURT AMENDS RULES RE: KBA ELECTIONS and DUTIES

Sunday, May 13th, 2012

LawReader reports the following amendment to the Supreme Court Rules which became effective in March of 2012.

Supreme Court of Kentucky

 

IN RE: AMENDMENTS TO THE BY-LAWS OF

THE KENTUCKY BAR ASSOCIATION

 

ORDER

 

Under SCR 3.090, and as approved by the Board of Governors of the Kentucky

 

Bar Association (KBA) on March 16, 2012, under Section 15 of the By-Laws of the

 

KBA, the By-Laws of the KBA are hereby amended as follows:

 

BY-LAWS OF THE KENTUCKY

BAR ASSOCIATION

 

Effective January 1, 1997

 

Including Amendments Received Through March 2012

 

Section

 

1 Definitions

2 Honorary memberships

3 Annual and midyear conventions of the Association

4 The Board of Governors

5 Officers

6 Nomination of officers

7 House of Delegates

8 Officers of the House-duties, tenure and manner of selection

9 Elections

10 District bar programs

11 Sections

12 Committees

13 Committees of the House

14 Board to promote educational publications

15 Amendments

 

Section 1 Definitions

 

The definitions embodied in SCR 3.010 are hereby adopted as a part of these By-laws.

 

HISTORY: Amended by Order 96-1, eff. 1-1-97; approved eff. 11-11-69

 

 

SCR 2012 – Pg.1

Section 2 Honorary memberships

 

The Board may by resolution designate members 75 years of age, 50 year members, and other members of the Association as honorary members in recognition of outstanding professional achievement, either for life or for some other designated period of time, who shall not be required to pay dues.

 

HISTORY: Amended by Order 96-1, eff. 1-1-97; prior amendments eff. 9-30-

83, 1-11- 7 8; approved eff. 11-11-69

 

Section 3 Annual convention of the Association

 

An annual convention of the Association, open to all members in good standing shall be held at such time, during the months of Mayor June, and at such place in Kentucky, as the Board may designate.

 

The President and/ or Executive Director of the Association shall, as soon as possible after the fixing of said dates, notify each presiding Circuit Judge of the dates of said conventions for the purpose of encouraging the Circuit Judge to arrange the trial schedule of the Court so as not to interfere with the dates of said conventions.

 

HISTORY: Amended by Order 96-1, eff. 1-1-97; prior amendment eff. 9-30-83; approved eff. 11-11-69

 

Section 4 The Board of Governors

 

(a) The “Board” is defined in SCR 3.070 The term of office of each Governor of the Board shall commence on July 1 next following their election and shall be for a period of two years and/ or until their successor is elected and qualified.

 

(b) Any member of the Association in good standing shall be eligible for nomination and election to the Board of Governors from the Supreme Court District in which the member resides.

 

(c) Nomination of a candidate for the Board shall be by written petition signed by not less than twenty members in good standing who are residents of that Supreme Court District. All nominating petitions shall be received by the Executive Director at the Kentucky Bar Center prior to 5:00 p.m., Eastern Time, of the last regular business day of the month of October. If only one candidate is nominated in a District, he/she shall be declared elected to that office and the Executive Director shall at once so certify to the Board and the candidate. Where two or more candidates are nominated, an election shall be held as provided in Section 9.

 

(d) Any vacancy on the Board or in the office of President-Elect or Vice President shall be filled by a member eligible for election under Section 4(b) for the remainder of the term by appointment by the President, subject to the written approval of a majority of the Board of Governors. However, upon a vote of a majority of the Board a special election may be called for filing such vacancy.

 

(e) The Board shall hold regular meetings at such place and at such time as it may from time to time direct during the months of January, March, May, July, September and November, and immediately preceding the first day of the annual convention of the Association. Special meetings may be called by the President whenever necessary, and shall be called by the President upon the written request of four or more members of the Board. Any of these meetings may be cancelled upon vote of the majority of the Board of Governors.

 

(f) Eleven members of the Board shall constitute a quorum. Except as otherwise provided in the Rules, the vote of a majority of those present and voting shall be necessary to take action.

 

HISTORY: Amended eff. 10-14-10; Amended by Order 99-1, eff. 2-3-00, 2-1- 00; prior amendment eff. 1-1-97 (Order 96-1); approved eff. 11-11-69

 

Section 5 Officers

 

The officers of the Association and of the Board, their duties, tenure, and manner of selection shall be:

 

(a) The President.

 

The President shall be the chief executive officer, and preside at all meetings of the Association and of the Board. The President shall be a member of the Board with full power to vote on all matters which it may consider. The President shall perform all duties imposed by the Rules and by these By-Laws. The

President’s term of office shall be for one year and shall commence on July 1 in the second calendar year next succeeding election as President-Elect.

 

(b) The President-Elect.

 

The President-Elect shall be nominated and elected as hereinafter provided and shall hold such office until he/she assumes the office of President. The President-Elect shall endeavor to thoroughly familiarize himself/herself with the duties of the President and the work of the Association and of the Board.

 

(c) The Vice President.

 

The Vice President shall be nominated and elected as hereinafter provided. The Vice President’s term of office shall commence on July 1 next succeeding President shall be filled by a member eligible for election under Section 4(b) for the remainder of the term by appointment by the President, subject to the written approval of a majority of the Board of Governors. However, upon a vote of a majority of the Board a special election may be called for filing such vacancy.

his/her election and shall continue for one year. The Vice President shall perform the duties of the President during the absence or disability of the President. If a vacancy shall exist in the office of President, the Vice President shall succeed to that office for the remainder of the term.

 

(d) Limits on Election

 

The President, President-Elect and Vice-President shall, during their tenure and for a period of four years thereafter be ineligible to serve as elected members of the Board except the Vice-President may run for and serve as President – Elect.

 

(e) The Executive Director.

 

The Executive Director shall be appointed by the Board and shall hold office at its pleasure. The Executive Director shall maintain an office at such place in Kentucky as may be directed by the Board. The Executive Director shall be the custodian of all records of the KBA other than disciplinary records which are maintained by the Disciplinary Clerk or the Inquiry Commission. The Executive Director shall keep a record of the proceedings of the Board; provided, that the Board may order any part of its records expunged. In the absence or disability of the Executive Director, the Board shall appoint an Acting Executive Director. The Board may appoint an assistant or assistants to the Executive Director who shall also perform such other duties as are required by the Board.

 

(f) The Registrar and Deputy Registrar.

 

The Registrar and Deputy Registrar shall be appointed by and hold office at the pleasure of the Chief Justice. They shall maintain their offices at the Association’s headquarters in accordance with the provisions of SCR 3.100. They shall be the custodian of all accounting records, the roster of members and such other information pertaining to Association membership as required by SCR 3.060 or as may be prescribed either by the Court or by the Board. The Registrar’s office shall constitute the principal office of the Association.

 

(g) The Treasurer.

 

The Treasurer and Assistant Treasurer shall be appointed by the Board and hold office at its pleasure. The Treasurer shall be the fiscal officer of the Association and of the Board. It shall be the Treasurer’s duty to collect all funds due to the Association and the Board, and to receive and disburse funds for the Association under direction of the Board. The Treasurer shall keep accurate books and records of accounts, and at least quarterly (and at more frequent intervals when required by the Board) shall make a written report showing the then-current financial position of the Association, and all receipts and disbursements since the date of his/her last report. In the absence or disability of the Treasurer, a member of the Board shall be named by the President to perform the duties of the Treasurer.

 

(h) Executive Committee.

 

An Executive Committee of the Board shall consist of the following officers of the Bar: The President, who shall serve as Chair of the Executive Committee, the Immediate Past President, the President-Elect, the Vice-President, Chair of the Young Lawyers Division, and the Executive Director. The Executive Committee shall advise the President on matters concerning the operations of the Bar and provide a forum for discussion and recommendation to the Board of Governors including matters of long range planning. The Executive Committee may also act on matters of an emergency nature that may affect the Bar. When the Executive Director becomes aware of any matter that may require Executive Committee action, the Executive Director shall immediately advise the President. The President shall advise the Board of any action taken or any recommendation made by the Executive Committee at the next Board meeting. The Executive Committee shall meet at such times as may be called by the President.

 

HISTORY: Amended eff. 10-14-10; Amended by Order 2005-10, eff. 1-1-06; prior amendments eff. 1-1-97 (Order 96-1),4-19-85, 12-30-74; approved eff. 11-11-69

 

Section 6 Nomination of officers

 

(a) Nomination to the offices of Vice-President and President-Elect shall be made by written petition as herein provided. All candidates for office shall be members of the Association in good standing.

 

(b) Nominations for the offices of Vice-President and President-Elect shall be made by written petition signed by not less than one hundred members of the Association in good standing, with not less than ten signatures on the written petition being from each Supreme Court District. Only one candidate may be nominated on a single petition and any number of petitions may be filed for a candidate.

 

(c) All nominating petitions for the office of Vice-President and President-Elect shall be filed with the Executive Director between October 15 and November 15 in each year. Where only one candidate has been duly nominated for an office that candidate shall be declared elected and the Executive Director shall so certify to the Board and the nominee on or before December 15 in that year.

 

HISTORY: Amended by Order 2005-10, eff. 1-1-06; prior amendment eff. 1-1- 97 (Order 96-1); approved eff. 11-11-69

 

Section 7 House of Delegates – deleted

 

HISTORY: Deleted by Order 2005-10, eff. 1-1-06; prior amendment eff.I-I-97

(Order 96-1); approved eff. 11-11-69

 

Section 8 Officers of the House-duties, tenure and manner of selection – deleted

 

HISTORY: Deleted by Order 2005-10, eff. 1-1-06; prior amendments eff. 1-1-97

(Order 96-1), 12-30-74; approved eff. 11-11-69

 

Section 9 Elections

 

(a) Ballots for the offices of President-Elect, Vice-President, members of the Board of Governors for which there will be an election will be prepared by the Executive Director and will be mailed on December 15 with return envelopes as hereinafter provided, to each member of the Association in good standing entitled to vote in that election. Names of candidates shall be listed on the ballots in alphabetical order with each position being voted upon.

 

(b) The ballot shall be sealed by the member in an unmarked inner return envelope, which, in turn shall be sealed in an outer return envelope containing the words: “Official Ballot-Not to be opened until January 16″ and lines for the signature and county address of the attorney casting the ballot.

 

(c) All ballots must be received not later than January 15 by the Clerk, who shall keep all such ballots in a secure box. Such box shall be opened only at the meeting of the canvassing board which shall count the votes. The canvassing board will be appointed by the Clerk and shall consist of persons chosen by the Clerk in the number sufficient to count the ballots. No member of the Board or employee of the KBA may be placed on the canvassing board. The preference shall be for non-lawyers to serve on the canvassing board. Not later than January 20 the canvassing board shall meet at any such place as may be designated by the Clerk, and count the votes. Each candidate for a position shall be entitled to have present at the meeting of the canvassing board an official observer under a written and signed designation by such candidate. No candidate may be present at the meeting of the canvassing board.

 

(d) A plurality of all votes cast for each position shall be sufficient to elect. The canvassing board shall make and file with the Clerk a written certification of each election, with a copy thereof to the Executive Director who shall promptly notify each candidate and the Board of the results of the election.

 

(e) Any candidate who desires a recount must deliver a written request to the

Clerk within ten days from the filing of the certification. The Clerk will establish procedures for such recount. If no recount is timely requested, or at the conclusion of the recount, the Clerk shall destroy the ballots.

 

HISTORY: Amended by Order 2005-10, eff. 1-1-06; prior amendment eff. 1-1-

97 (Order 96-1); approved eff. 11-11-69

 

Section 10 Sections

 

(a) Sections. There are created the following sections within the Kentucky Bar

Association:

 

(1) Business Law.

(2) Criminal Law.

(3) Family Law.

(4) Civil Litigation.

(5) Labor and Employment Law.

(6) Probate and Trust Law.

(7) Taxation.

(8) Public Interest Law.

(9) Corporate House Counsel.

(10) Environment, Energy & Natural Resources Law.

(11) Local Government Law.

(12) Workers’ Compensation Law.

(13) Real Property Law.

(14) Bankruptcy Law.

(15) Senior Lawyers.

(16) Equine Law.

(17) Education Law.

(18) Construction and Public Contract Law.

(19) Small Firm Practice & Management.

(20) Health Care Law.

(21) Alternative Dispute Resolution.

(22) Appellate Advocacy.

(23) Elder Law

 

(b) Eligibility. All members in good standing of the Kentucky Bar Association shall be eligible for membership in anyone or more of the Sections of the Kentucky Bar Association, subject to that Section’s membership criteria, and may become members by paying the respective dues as designated by each Section.

 

(c) Officers. Officers for each Section shall include, but need not be limited to, a Chair, a Chair-Elect, and a Vice-Chair, who shall be elected for a term of one or two years, from and by its own membership present and voting at the required annual Section meeting, which shall take place during the annual meeting of the Association or as scheduled by the Section prior to the end of the current fiscal year ending on June 30th. Each section shall specify the term of office in the Section by-laws which term may be of either one year or two years in duration. No individual may serve in anyone of the required offices of the Section for a period of greater than two years. If a Section fails to fill the required offices at their annual meeting, the Board of Governors, following a petition from the Section, may appoint an interim officer to fill the remainder of the term.

 

(d) Dues. A majority of the members of the Section in attendance at the annual meeting of the Section may fix dues for the Section. The dues shall be paid to the Treasurer (of the KBA) and disbursed by the Treasurer for programs of each Section as approved by the Executive Director.

 

(e) By-Laws. Every Section shall have a set of by-laws, which shall include a Section mission statement, describing the purpose of their existence. A majority of the members of the Section in attendance of the annual meeting of the Section shall adopt the by-laws which shall be subject to the approval of the Board of Governors and the Supreme Court.

 

(f) Annual Report. Each section shall annually file with the Board, on or before the annual meeting, a report which shall outline the activities and expenditures of the Section for the current fiscal year ending June 30th.

 

(g) Forecast Report. Every Section’s incoming chair shall submit to the Board on or before the August 1 st following their election as chair, an outline of the section’s proposed activities, expenditures and meetings for the ensuing fiscal year.

 

(b) Approval of Activities and Projects. All Section programs, projects, expenditures (excluding routine in-state travel in support of Section activities, programs or projects) and meetings shall be preapproved in writing by the Executive Director or the Director of Accounting. Dues paid pursuant to

Supreme Court Order are to be used by the KBA for those activities and purposes that are necessary or reasonably incurred for the purpose of fulfilling the mission established by the Court; regulating the legal profession, and improving the quality of legal services. Such dues should not be used for political or ideological activities that could reasonably be construed to impinge on the First Amendment rights of free speech of members who disagree with such political or ideological activities.

 

(i) New Sections. A new Section of the Kentucky Bar Association may be created upon the Board’s approval following the submission of an application and petition by a current Kentucky Bar Association member, which shall include the following:

(1) a description of the area(s) of practice the Section will cover;

 

(2) statement of need and purpose;

(3) signatures of a minimum of one hundred (100) current Kentucky Bar Association members who are interested in seeing the formation of the proposed Section.

 

Establishment of the Section shall become effective at the start of the following fiscal year following the Court’s approval.

 

U) Abolition. Upon notice by mail to all current members of a Section, the Board of Governors may abolish a Section, which would take effect at the end of the fiscal year in which notice was given.

 

HISTORY: Amended eff. 10-14-10; Amended eff. 9-1-07; prior amendments eff. 1-1-06 (Order 2005-10), 1-1-02 (Order 2001-2), 4-16-97, 1-1-97,2-26-96,4- 19-93,9-8-92,9-25-91,5-18-90,8-25-89,6-23-87, 2-15-84, 1-14-83, 10-6-82, 6-8-81, 10-6-80; approved eff. 11-11-69

 

Section 11 Young Lawyers Division

 

(a) There is created a Young Lawyers Division within the Kentucky Bar Association.

 

(b) Eligibility. All members in good standing of the Kentucky Bar Association who are less than forty years old or who have been a member of the Kentucky Bar Association for less than ten years shall be eligible for membership in the Young Lawyers Division and may become a member by paying the respective dues as designated.

 

(c) Officers. Officers for the Young Lawyers Division shall include, but need not be limited to, a Chair, a Chair-Elect, and a Vice-Chair, who shall be elected for a term of one year, from and by its own membership present and voting at the required annual Division meeting, which shall take place during the annual meeting of the Association or as scheduled by the Division prior to the end of the current fiscal year ending on June 30th. No individual may serve in any one of the required offices of the Division for a period of greater than one year. If the Division fails to fill the required offices at their annual meeting, the Board of Governors, following a request from the outgoing Chair, may appoint an interim officer to fill the remainder of the term.

 

(d) Dues. A majority of the members of the Division in attendance at the annual meeting of the Division may fix dues for the Division. The dues shall be paid to the Treasurer (of the KBA) and disbursed by the Treasurer for programs of the Division, except that any expenditure that has not been pre-approved in the Division’s annual budget pursuant to subsection (h) shall be subject to the approval of the Executive Director.

 

(e) By-Laws. The Division shall have a set of by-laws, which shall include a Division mission statement, describing the purpose of the Division’s existence. A majority of the members of the Division in attendance of the annual meeting of the Division shall adopt the by-laws which shall be subject to the approval of the Board of Governors and the Supreme Court.

 

(f) Annual Report. The Division shall annually file with the Board, on or before the annual meeting, a report which shall outline the activities and expenditures of the Division for the current fiscal year ending June 30th.

 

(g) Forecast Report. The Division’s incoming chair shall submit to the Board on or before the August 1 st following their election as chair, an outline of the Division’s proposed activities, expenditures and meetings for the ensuing fiscal year.

 

(h) Approval of Budget, Activities and Projects. All Division programs, projects and expenditures shall be pre-approved in writing by the Executive Director or the Director of Accounting. In addition, the Division’s annual budget shall be pre-approved in writing by the Executive Director on or before August 1 st for the ensuing fiscal year. Dues paid pursuant to Supreme Court Order are to be used by the KBA for those activities and purposes that are necessary or reasonably incurred for the purpose of fulfilling the mission established by the Court; regulating the legal profession, and improving the quality of legal services. Such dues should not be used for political or ideological activities that could reasonably be construed to impinge on the First Amendment rights of free speech of members who disagree with such political or ideological activities.

 

(i) Abolition. Upon notice by mail to all current members of Division, the the

Board of Governors may abolish the Division, which would take effect at the

end of the fiscal year in which notice was given.

 

Section 12 Committees

 

(a) The Association shall have such committees as may be designated by the Supreme Court, or as authorized by the Board. Any committee created by the Board, including those in existence at the time of the adoption and amendments of these bylaws may be disbanded by the Board.

 

(b) Membership and Term of Service. Unless otherwise provided by Rule the following shall apply for membership and terms of service for committees:

(1) Each year the President shall appoint a Chair for each committee.

(2) The President shall appoint to each committee one or more Board members whose terms will be for one (1) year.

(3) At the discretion of the Board certain committees may be composed solely of Board members.

 

(4) In the event non-Board members are appointed, the President shall strive for geographic diversity in the membership of each committee.

 

(5) All other committee members, who are not Board members, (with the exception of Ethics Hotline Members) shall be appointed for three (3) year terms and absent extraordinary circumstances as determined by the President, no committee member shall serve more than two (2) consecutive three-year terms. In such extraordinary circumstances, the President may appoint that committee member for only a one (1) year term ..

 

(c) Each committee shall meet at least once a year. On or before June 30 of each year, each committee shall submit to the Board a written report., describing its activities and recommendations.,. Written reports will also be submitted when requested by the President or the Board of Governors.

 

HISTORY: Amended eff. 10-22-09; amended eff. 10-13-08; prior amendments eff. 1-1-06 (Order 2005-10),3-1-98 (Order 97-3), 1-1-97,7-18-92,9-18-85; approved eff. 11-11-69

 

Section 13 Committees of the House – deleted

 

HISTORY: Deleted by Order 2005-10, eff. 1-1-06; prior amendment eff. 1-1-97

(Order 96-1); approved eff. 10-22-85

 

Section 14 Board to promote educational publications

 

The Board from time to time, pursuant to the authority vested in it by SCR

3.090, shall promote or maintain the printing and distribution of reports, legal pamphlets and other publications, including the sponsoring and production of radio and television programs, which are designed to educate or inform the bar and the public; it shall also conduct continuing legal education programs, seminars and institutes calculated to advance the interests of the bench and bar and promote and improve the administration of justice in Kentucky, and it may appropriate funds necessary to defray the expense thereof.

 

HISTORY: Amended by Order 96-1, eff. 1-1-97; approved eff. 11-11-69

 

Section 15 Amendments

 

These By-Laws may be amended at any regular or special meeting of the Board by a majority vote of the Governors present and voting, and may be amended between meetings of the Board upon written consent of a majority of all the Governors then holding office; provided, that no amendment shall be effective until approved by the Supreme Court pursuant to the provisions of SCR 3.090.

 

HISTORY: Amended by Order 96-1, eff. 1-1-97; approved eff. 11-11-69

 

Section 17: Removal for Cause

 

(a) A KBA Board of Governors member, KBA officer, or member of a KBA committee may be removed from the Board, his or her office, or the committee, for cause, as hereinafter defined, on the two-thirds affirmative vote of a quorum of the Board of Governors present at a regular meeting or a meeting called for that purpose. Members of the Board may be present by telephone. For purposes of this Bylaw, the term “cause” shall mean any of the following:

 

(i) physical or mental impairment rendering him/her incapable of performing duties to the Association for a period of more than three consecutive meetings;

 

(ii) absence of the Board member or officer at two consecutive Board meetings or absence of a committee member from two consecutive meetings of that committee without cause deemed adequate by the Board;

 

(iii) continued neglect or failure, after written demand, to discharge his/her duties or to obey a specific written direction from the Board;

 

(iv) a conflict that renders him/her incapable of fulfilling his/her duties to the Association;

 

(v) misconduct that is injurious to the Association;

 

(vi) conviction of a misdemeanor involving dishonesty or immoral conduct; or

 

(vii) conduct that impairs his/her ability to perform his/her duties to the Association or would impair the reputation of the Association.

 

A KBA member who is convicted of a felony, which automatically results in suspension under SCR 3.166, or any member who is suspended or disbarred from the practice of law by Order of the Kentucky Supreme Court, is removed effective the date of such conviction, suspension, or disbarment, inasmuch as he/she would be ineligible to serve.

 

(b) Removal proceedings shall be commenced upon a written request to the KBA President by four or more members of the Board. The proceedings shall be conducted as follows:

 

(i) All Board members, officers, and any affected committee member shall receive at least thirty (30) days’ notice in writing of the meeting at which the Board will consider proposed removal, and the written notice shall set forth the grounds for the proposed removal;

 

(ii) A written response to the grounds for removal may be presented to the KBA no later than ten (10) days before the meeting;

 

(iii) At the meeting the member and/ or his or her counsel may present oral argument, if oral argument is requested in the written response filed as provided in (b)(ii); and

 

(iv) At the meeting the Board shall consider the matter and vote in executive session.

 

(c) In the event of removal, the position shall be filled pursuant to SCR 3.080.

 

HISTORY: Approved 9-10-09

 

Section 18: Electronic Conferencing

 

If prior notice has been provided, and if such facilities are available, any member of a Section or Committee may attend a meeting, other than disciplinary proceedings, by telephone or electronic conferencing. Any member so attending shall count towards a quorum of such meeting and shall have all rights, including the right to vote, as if physically present at said meeting.

 

All sitting. All concur.

 

ENTERED this 19th day of April, 2012.

 

SCR 2012 – Pg.12

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABA WORKS ON MODEL DEFINITION OF “PRACTICE OF LAW”

Saturday, May 12th, 2012

Law

 

American Bar Association Center for
Professional Responsibility

Task Force on the Model Definition of the
Practice of Law

Board of Governors
Resolution

RESOLVED, that a Task Force on the Model
Definition of the Practice of Law with not more than seven members, including a
chair, appointed by the President in consultation with the chair of the
Standing Committee on Client Protection shall be established to work in
conjunction with the Standing Committee on Client Protection regarding a model
definition of the practice of law and to report to the Board of Governors not
later than August 2003. This Task Force and the Standing Committee on Ethics
and Professional Responsibility shall maintain a liaison relationship.

State Action

Adopted Definitions of the Practice of Law

See also AZ, DC and WA under State Definitions of the Practice of Law.

Proposed Definitions of the Practice of Law

For additional
information, please contact Art Garwin, Publication & Professionalism
Counsel at 312/988-5294 or Art.Garwin@americanbar.org.

 

ABA WORKS ON MODEL DEFINITION OF “PRACTICE OF LAW”

American Bar Association Center for Professional Responsibility

Task Force on the Model Definition of the Practice of Law

Board of Governors Resolution

RESOLVED, that a Task Force on the Model Definition of the Practice of Law with not more than seven members, including a chair, appointed by the President in consultation with the chair of the Standing Committee on Client Protection shall be established to work in conjunction with the Standing Committee on Client Protection regarding a model definition of the practice of law and to report to the Board of Governors not later than August 2003. This Task Force and the Standing Committee on Ethics and Professional Responsibility shall maintain a liaison relationship.

State Action

Adopted Definitions of the Practice of Law

See also AZ, DC and WA under State Definitions of the Practice of Law.

Proposed Definitions of the Practice of Law

For additional information, please contact Art Garwin, Publication & Professionalism Counsel at 312/988-5294 or Art.Garwin@americanbar.org.

New Bar Dues Imposed: Supreme Court rejects KBA reccomendations – See Sup. Ct. order

Saturday, May 12th, 2012

New Bar Dues Imposed: Supreme Court rejects KBA reccomendations

http://www.kybar.org/documents/enews/12_dues.pdf

We note that the Supreme Court did not rubber stamp the KBA request.  The KBA sought to greatly increase the dues to be paid by Judges, and to raise all other lawyers much more than the Court approved.

TRANSPARENCY IN THE DISCIPLINE OF ATTORNEYS IS A CONSUMER PROTECTION RIGHT – DISCIPLINE PROCEDURES CAN TAKE EIGHT OR NINE YEARS IN KENTUCKY…WHAT HAPPENS TO THE UNSUSPECTING PUBLIC?

Saturday, May 12th, 2012

STUDIES ON LAWYER DISCIPLINE SECRECY: http://www.halt.org/what-we-do-for-you/hold-lawyers-accountable/lawyer-discipline/discipline-transparency

HALT Launches Study Showing States’ Secrecy Regarding Lawyer Ethical Transgressions

HALT released a breakthrough study revealing that most states conceal information about ethics charges against lawyers. To protect lawyers’ reputations, state disciplinary systems are ignoring consumers’ right to know about transgressions of the attorney they are considering hiring.

Read More:

Download the full Issue Brief

Download the state by state comparison

KBA PRESIDENT STILL HAS NOT RESPONDED TO OUR REQUEST FOR DETAILS ABOUT EXPENDITURE OF LAWYERS DUES FOR OUTSIDE COUNSEL BY THE BAR COUNSEL’S OFFICE

Saturday, May 12th, 2012

 

Stan Billingsley, the LawReader Senior Editor, wrote the KBA President on April 10, 2012 (32 days ago) to seek information about the amount of attorneys dues are going to the employment of outside counsel by the Bar Counsel’s Office over the last two years. As of Sat. May 12, 2012 we have not received any response to this request from KBA president Margaret Keane.  We will keep raising this question until we get a response.

The KBA recently published a “statement of financial position”. This report doesn’t answer important questions.

While the Judiciary (funded by the legislature) has had their budget cut dramatically, the KBA (funded by lawyers dues) has increased the budget of the Bar Counsel’s Office by $113,550 for the coming year.

This auditors report in the March 2012 edition of the Bench & Bar once again shows that the Bar Counsel’s Office is the single largest expenditure of the Ky. Bar Association.

In the year 2011, the appropriation for the bar counsel’s office, rose to $1,753,745.

While the audit released by the KBA mentioned gross amounts, it does not provide specific information about how this $1,753,745 is being spent by the Bar Counsel’s Office.

This year the Bar Counsel’s Office received an increase of $113,550 over the prior year. There is no explanation why the Bar Counsel’s Office needed an increase of $113,550 in their budget.

The author, (a dues paying member of the KBA for 41 years), believes that he is entitled to obtain information about how much is being spent by the KBA for the hiring of outside counsel in attorney discipline cases. We note that the Bar Counsel’s office has nine full time lawyers authorized,why can’t the Bar Counsel’s office handle the work that is being shifted at great expense, to outside counsel?

Who is being hired, How much are they being paid, What cases were they hired for.

It is one thing to say that the Bar Counsel’s Office has a gross budget of $1,753,745, but the real information is hidden by the KBA report. Who is getting this $1,753,745? Shouldn’t the attorneys who are being taxed to pay these expenses be able to be informed on this question?

 

The following story provides another example why attorney discipline rulings should not be sealed. The public has an interest in knowing results of all discipline proceedings

Wednesday, May 9th, 2012

The following story provides another example why attorney discipline rulings should not be sealed. The public has an interest in knowing results of all discipline proceedings.

Disbarred Lawyer Gets 30 Days for Over a Decade of Unauthorized Practice of Law

Posted May 7, 2012 10:47 AM CDT

By Martha Neil

A Nebraska lawyer who continued practicing law for over a decade after he was suspended in 1998 for failing to pay state bar dues has been criminally convicted of two misdemeanor counts of unauthorized practice of law and sentenced to 30 days in jail.

David M. Walocha, who is now 43, was disbarred earlier this year for the same conduct.

Prosecutor Katie Benson said the convictions represented just two of the 65 cases in which Walocha represented defendants in Douglas County Court between 1998 and 2011, reports the Omaha World-Herald. However, authorities were barred by the statute of limitations from pursuing charges concerning many of the representations, including five felonies that Walocha handled.

One of Walocha’s former clients is seeking a new trial concerning a child-sex-assault case, arguing that he was denied his constitutional right to an attorney.

Meanwhile, the chief justice of the Nebraska Supreme Court is seeking input from attorneys and staff about what can be done to prevent such a situation from recurring. One potential way to preclude such problems would be to make information about attorney disciplinary cases available online to the public and court staff, the article notes.

 

 

Voluntary or Mandatory Bar Association? Is it time to examine the structure of the KBA….Is it proper to consider direct election of the KBA President?

Tuesday, May 8th, 2012

All Kentucky lawyers must join the KBA and must pay substantial dues (to be raised further in July of 2012). Once you are a member of the KBA you can’t quit if they object.

The cost of operation of the KBA is paid by the l7,000 dues paying members. That sum is estimated by LawReader to produce $4.5 to 5.2 million dollars in 2012-2013.

If you want to attend the KBA’s annual state convention, you must shell out $460 (although some early payers were only charged $360) to attend the convention this summer.

The KBA justifies the high cost of dues by saying that they provide free CLE classes each year to all attorneys. That is true. But does this one program justify the absolute control the KBA has over Kentucky lawyers?

The KBA funds the Bar Counsel’s Office with $1.7 million dollars this year. It was reported to contain an increase of about $150,000 this year. The Bar Counsel’s Office employs 24 employers which includes nine full time staff attorneys (one position is presently vacate).

The function of the Bar Counsel’s Office is to investigate and prosecute ethics violations by attorneys. They have earned a reputation for exercising their powers with great enthusiasm.

We have never heard one attorney praise the Bar Counsel’s Office for their reputation for fairness. (We make no allegation that they are anything but fair and reasonable in all their actions…we just say we have not heard any other attorney defend them on this point. )

It is not unusual for the Bar Counsel to investigate charges that allegedly occurred eight or nine years before. Some charges have been as minor as “being an hour late to court” or “writing a letter to the legislative ethics commission.”

Some officials in the KBA has suggested that it would be appropriate for the Bar Counsel’s Office to consider more arbitrations and more rehabilitation efforts instead of focusing on lengthy suspensions. The Bar Counsel is given the discretion under the Rules to ask for harsh penalties for even the most minor offenses. There are no graduated scale such as is found in the criminal code (violations, misdemeanors, or felonies).

One of the problems we are concerned about is the Bar Counsel’s use of outside law firms to handles cases in the Federal Courts in which the KBA is a defendant.

The KBA to our knowledge has no person in control (other than the Bar Counsel) who can decide if litigation requiring expensive outside counsel is actually in the best interest of the BAR and justice. The pending case by John M. Berry Jr. and the ACLU against the KBA is before the 6th. Cirt. Court of Appeals and could end up costing KBA members hundreds of thousands of dollars. The purpose of that lawsuit maintained by the KBA is to allow the investigation (and possible sanction) of attorneys who make “true but reckless” statements about judges or prosecutors.

The Bar Counsel’s Office is protected by “confidentiality” rules concerning ongoing investigations, but also is allowed to keep secret, complaints which have been dismissed by the Bar Counsel. Those dismissals are not reviewable by the Supreme Court or the Board of Governors. The Chief Bar Counsel is given absolute discretion to dismiss any case he/she wishes and never disclose it to the members of the Bar or the public. This lack of transparency is an open invitation for serious ethical violations to be dismissed in secret by those in the favor of the Bar Counsel.

The Bar Counsels’ Office is the KBA’s largest single expenditure. We can’t tell you if the Bar Counsel’s Office is efficient in their expenditure of our dues, since they will not provide that information to us.

On April 10, 2012 LawReader wrote the KBA President Margaret Keane, and simply asked for the numbers the Bar has paid in outside counsel fees for the Bar Counsel’s Office over the last two years.

We would suggest that instead of filling the current vacancy in the Bar Counsel’s office, due to the discharge of Linda Gosnell last November, that the KBA should consider hiring a public relations person who would sit them down and tell them how to turn around their downward spiral of respect by members of the Kentucky legal profession.

We are beginning to hear questions about the structure of the KBA. Some suggest that we should no longer be a mandatory bar association but should follow the example of Ohio and become a voluntary bar association.

One suggestion he have recently heard is for changes in the KBA structure to allow the direct election of the KBA President. If the KBA President was accountable to the membership, and if he/she was democratically elected, then perhaps they would be more willing to keep us informed on how they are spending our dues.

Not all states require mandatory membership in their state bar association.

Most U.S. states have a unified (mandatory) bar association to which all attorneys must belong in order to practice in that state. Some states have voluntary bar associations to which attorney may belong, but they do not have to be a member of the bar in that state in order to practice in the state.

The states which have mandatory/unified/integrated bar associations:

Alabama, Alaska, Arizona, California, Florida, Georgia, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. The District of Columbia, the U.S. Virgin Islands, Puerto Rico, Guam and the Northern Mariana Islands also have mandatory bar associations.

The bar associations in many U.S. states are voluntary. That is, attorneys do not have to join the bar association to practice law in that state. Voluntary bar associations do not regulate the practice of law in that state nor do they admit lawyers to practice law within the state. The opposite of a voluntary bar association is a unified bar association.

States which have voluntary bar associations include Vermont, Maine, New York, Pennsylvania, Maryland, Delaware, Massachusetts, Ohio, Indiana, Illinois, Iowa, Minnesota, Tennessee, Arkansas, Kansas, and Colorado.

 

 

NORTHERN KY. BAR FOUNDATION HONORS KBA VICE-PRESIDENT THOMAS L. ROUSE

Tuesday, May 8th, 2012

Florence attorney William Kathman presented KBA Vice-President Thomas L. Rouse with the Northern Kentucky Bar Foundation’s 2012 Richard Lawrence Lifetime Achievement Award during Law Day ceremonies on May 1 hosted by the Northern Kentucky Bar Association and sponsored by Central Bank & Trust Co.

The award recognizes a senior trial attorney who is a member of the NKBA and has distinguished him/herself throughout a lengthy career as not only a good advocate of their client’s causes, but also as a good citizen and as a good member of their chosen profession. The emphasis of the award is based on courtroom accomplishments. Rouse is the sole proprietor of Thomas Rouse Law located in his hometown of Erlanger, where he was elected Mayor in 2007.

He is a graduate of the University of Kentucky College of Law and the University of Virginia School of Engineering and Applied Science. Rouse will serve as KBA President in 2013-14. Congratulations

 

KBA BAR DUES RAISED EFFECTIVE JULY 1, 2012

Tuesday, May 8th, 2012

KBA BAR DUES RAISED EFFECTIVE JULY 1, 2012

See: http://www.kybar.org/625 – KBA e-mail message:

On May 8, 2012 the KBA e-mail service reports that KBA bar dues are to be raised.

 

“Effective July 1, 2012, the annual dues to be charged for membership in the KBA will be $310 for those members who have been admitted to the practice of law for five years or more; $220 for those members who have been admitted to the practice of law less than five years; and $150 for members of the judiciary as set forth in an order from the Supreme Court of Kentucky entered April 27.”

These dues actually approved by the Supreme Court appears to be less than the amount requested by the KBA.

Some time ago the KBA commented that a story printed on LawReader alleging a plan to raise Bar dues to $500 over the next three years was incorrect. The KBA was asked to spell out whether or not there was any discussion by the Board to actually raise bar dues to $500 over the next few years. Our request was ignored.

 

NOTICE OF JOB OPENING FOR DIRECTOR/GENERAL COUNSEL – KY OFFICE OF BAR ADMISSIONS

Tuesday, May 8th, 2012

NOTICE OF JOB OPENING

FOR

DIRECTOR/GENERAL COUNSEL

KY OFFICE OF BAR ADMISSIONS

 

GENERAL DUTIES:

 

· Developing and implementing operational practices and procedures.

 

· Overseeing office staff to ensure that all necessary support is provided to the Board of Bar Examiners and Character and Fitness Committee in administering the bar examination, in processing applications for admission to the bar and in responding to day to day inquiries.

 

· Coordinating the preparation of the budget and providing oversight of income and expenditures.

 

· Preparing cases for administrative hearings.

 

o Identifying relevant legal issues

 

o Directing the necessary investigations

 

o Researching and preparing legal memoranda and findings

 

o Organizing and preparing files for hearings

 

o Preparing documents necessary to implement post-hearing Committee directives

 

· Representing the Kentucky Office of Bar Admissions as legal counsel in court when and as needed.

 

· Serving as liaison between the office staff and the Board, Committee and Supreme Court.

 

· Serving as liaison with law schools and the National Conference of Bar Examiners.

 

EXPERIENCE REQUIRED:

 

· Member of the Kentucky Bar Association for at least three years

 

· High ethical standards

 

· Attention to detail

 

· Excellent communication skills

 

· High level of personal and professional motivation

 

· Ability to work under pressure and meet deadlines

 

· Management and/or administrative experience

 

· General knowledge of computer systems

 

· Ability to manage and maintain confidential information

 

Salary range – $70,000+, commensurate with experience

 

Duty Station – Lexington, KY

 

Deadline for Applications – May 31, 2012

 

 

 

Written applications should be sent to:

 

 

 

Mary Riddell, Deputy Director

KY Office of Bar Admissions

1510 Newtown Pike, Suite 156

Lexington, KY 40511

 

 

 

 

ERRANT PROSECUTORS SELDOM HELD TO ACCOUNT

Monday, May 7th, 2012

 

By Barry Scheck Reprinted from SPECIAL TO THE AMERICAN-STATESMAN Published: 6:18 p.m. Saturday, May 5, 2012

In February, Texas Supreme Court Chief Justice Wallace Jefferson affirmed the finding of state District Judge Sid Harle that there was probable cause to believe former Williamson County prosecutor Ken Anderson had violated the criminal laws of Texas by disobeying a court order to disclose evidence pointing to the innocence of Michael Morton, who in 1987 was wrongly convicted of murdering his wife. A court of inquiry will now try Anderson on these charges.

The case against Anderson (who is now a state district judge and denies wrongdoing in the Morton case) made national headlines because, as a recent article in the Yale Online Law Review thoroughly documents, our system rarely disciplines, much less brings criminal charges against, prosecutors who have engaged in acts of intentional misconduct. Far too often, prosecutors, who wield enormous power over our lives, aren’t investigated at all, even for intentional misconduct that has led to a wrongful conviction, much less “harmless” intentional misconduct in cases in which the defendant was guilty.

Texas appears to be no exception to the national pattern. The Innocence Project, the Northern California Innocence Project, Innocence Project of New Orleans and Voices of Innocence joined forces to investigate the problem of prosecutorial misconduct in Texas — no small task, given the lack of public data on the issue. In the end, the groups decided to review all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004 and 2008. This represents just a fraction of all criminal cases because it excludes nearly every case in which there has been a guilty plea or a dismissal and includes only those cases for which there are published opinions.

During that period, Texas courts found that prosecutors committed misconduct in 91 cases. Of these, the courts upheld the conviction in 72 of the cases, finding that the error was harmless. In 19 of the cases, the court ruled that the error was harmful and reversed the conviction. (The distinction between harmless and harmful does not differentiate between the seriousness of the misconduct. Rather, it is the court’s determination that the misconduct wouldn’t have changed the outcome.)

Compare this with public data on attorney disciplinary records. From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and that matter involved a pre-2004 case. This data surely undermine public confidence that the system designed to sanction prosecutors who ignore their legal and ethical obligations is not working as it should.

What can be done to reform the system? One remedy, civil litigation, is increasingly unavailable. Last year, the U.S. Supreme Court in Connick v. Thompson severely limited the ability of wrongfully convicted plaintiffs to hold a district attorney’s office accountable for intentional acts of misconduct by line prosecutors.

John Thompson was a 22-year-old father of two when he was wrongly convicted of murder and sent to death row at Angola State Penitentiary in Louisiana. While Thompson was facing his seventh execution date, a private investigator hired by his attorneys discovered exculpatory analysis of bloodstain evidence that had been concealed for 15 years by the New Orleans Parish district attorney’s office.

Thompson was eventually exonerated in 2003 and sued the district attorney’s office for his wrongful conviction. A jury awarded Thompson $14 million for the intentional misconduct that caused him to spend 14 years on death row, a finding that was approved by the 5th U.S. Circuit Court of Appeals, but in a controversial 5-4 decision, the U.S. Supreme Court ruled that Thompson wasn’t entitled to the award because the court found that even a complete failure to train prosecutors to disclose exculpatory evidence was not a sufficient basis to find the office civilly liable.

When combined with the long-standing rule that individual prosecutors have absolute immunity from civil liability for any actions, even criminal conduct, that takes place during adversarial proceedings, it is clear that civil lawsuits do not provide a serious deterrent against prosecutorial misconduct.

In Thompson and other recent Supreme Court cases involving civil liability for prosecutors, the National District Attorneys Association, the National Association of Assistant United States Attorneys and the solicitor general have argued that internal disciplinary systems, state bar proceedings, monitoring by the courts and, in extreme cases, criminal prosecution are adequate remedies, so civil suits are unnecessary and unduly burdensome.

________________________________________

Barry Scheck is 
co-director of the Innocence Project, a national litigation and public policy organization dedicated to exonerating wrongly convicted individuals through DNA testing and reforming the criminal justice system to prevent injustice.

 

 

YOU MAY BE DENIED ENTRY TO CANADA IF YOU HAVE A DUI ON YOUR RECORD

Saturday, May 5th, 2012

If you have a DUI conviction you may be denied entry to Canada.

By LawReader Senior Editor Stan Billingsley

On a recent trip to British Columbia we were asked at Canadian Customs if we ever had a DUI conviction. We answered in the negative and were admitted to Canada without problem. However this issue was novel, so upon return to America we have looked up this issue. In fact, Canada can and does restrict access to any foreigner who has a DUI conviction in their past.

There are ways around this problem.

Entering the U.S. and Canada with DUI offenses /

The U.S. Customs Office advises:

Resource: https://help.cbp.gov/app/answers/detail/a_id/402/~/entering-the-u.s.-and-canada-with-dui-offenses

Can I enter Canada and the U.S. if I have a DUI on my record?

As a general rule, Canada does not allow persons with DUI’s to enter their country, although travellers who require in-depth information regarding the process of applying for a waiver or other admissibility questions can reach the Canada Border Services Agency (CBSA) during regular business hours, Monday to Friday (08:00 – 16:00 local time, except holidays) by calling either (506)636-5064 or (204)983-3500.

You may also view the following links with CBSA on their waiver process:

• Citizenship & Immigration (for related policies and procedures on waivers): http://www.cic.gc.ca/

• CBSA’s home page: http://cbsa-asfc.gc.ca/menu-eng.html

• CBSA’s Contact page: http://cbsa-asfc.gc.ca/contact/bis-sif-eng.html

• CBSA’s info for non-Canadians: http://cbsa-asfc.gc.ca/noncan-eng.html

A single DUI conviction is not grounds to deny entry into the U.S; however, multiple DUI convictions or a DUI conviction in combination with other misdemeanor offenses can make a person inadmissible and require a waiver prior to entering the United States. A crime of moral turpitude (CIMT) may be grounds to deny entry to the U.S. For a list of crimes; please click here.

Click here for information on how to obtain a US Waiver of Inadmissibility.

 

Article:

Denied entry: Canada turns away American DUI offenders

Ben Finley, staff writer | Phillyburgs.com

It was supposed to be a father-and-son road trip to Alaska.

But it ended at the Canadian border – with the father crying and his 18-year-old son driving alone to Fairbanks, where he was stationed with the U.S. Air Force.

Canadian border officers turned away Michael Edwards because of his DUI convictions in the U.S. His last one was in 1996 – 14 years before he tried to enter Canada with his son.

The Canadians told the Lower Southampton man he’d have to go back home and apply for a special waiver to get into their country. It could take as long as a year to process. And it guaranteed nothing.

Edwards’ son had to report to duty in three days.

“It was the ultimate humiliation,” Edwards said of the experience in 2010. “If I had committed murder, I could see that. Are you kidding me? What was I going to do while passing through their country for a few days?”

Each year, Canada denies thousands of visitors with criminal histories, including misdemeanors such as a DUI. And it doesn’t matter if you plan to be behind the wheel in Canada.

Nations, including the U.S., have always denied entry to non-citizens for many reasons, including criminal history because of the potential risk.

In Pennsylvania and other states, DUI is a misdemeanor. But DUI is a more serious offense in Canada.

The crime is an example of where the U.S. and Canada differ on what kind of conviction automatically makes someone “inadmissible,” according to American officials and attorneys. However, an Ontario-based attorney said Canadians with DUIs can have just as much trouble getting into the states.

Americans – and several Bucks County residents – with DUI convictions have been caught off guard at the Canadian border despite warnings on both government’s websites and elsewhere. Some Bucks residents said they were pulled off trains and buses because of one DUI conviction several years – even decades – old.

It doesn’t matter if someone’s DUI was expunged through Bucks County’s program for first-time offenders, officially known as Accelerated Rehabilitative Disposition, attorneys said.

Since the Sept. 11, 2001, terrorist attacks, the U.S. and Canada have granted each other deeper access to their respective criminal databases to screen people trying to cross the border. Those checks reveal expunged charges.

Getting into Canada with a criminal conviction can mean waiting years to be considered “rehabilitated,” paying at least $1,500 in legal fees and putting down a really good reason on a waiver application, attorneys said. The waiver process has worked for people – even someone convicted of vehicular homicide, the attorneys said.

Some Bucks residents said they crossed the border in less traveled areas without undergoing a criminal background check.

Natalie Glister, a spokeswoman with Canada Border Services Agency, said her office couldn’t provide a list of every criminal conviction that could bar someone from entering the country. In an email, she said that “most criminal convictions,” including DUIs, can make someone inadmissible and require that person to apply for a waiver.

She said her office also couldn’t provide statistics regarding how many Americans have been denied entry because of DUI convictions or any other specific crime. But the agency reported an overall decrease in the number of Americans denied entry or removed from Canada because of criminality – from more than 9,000 in 2005 to about 4,200 last year. Glister declined to speculate on the decreasing number.

Rick Remington, a spokesman for AAA Mid-Atlantic, said the association warns folks that criminal convictions, including DUIs, may prevent them from entering Canada.

 

1. I was refused entry into Canada because of my DUI. What can I …

I am a US Citizen and had a DUI 3 years ago. I tried to enter Canada but I was refused entry because of my DUI Conviction. What Can I do to get into Canada?

www.visaplace.com/blog-immigration-law/denied-entry-to…

2. Denied entry: Canada turns away American DUI offenders …

Canadian border officials can dig up a DUI that had been expunged through Bucks County’s program for first-time offenders.

www.phillyburbs.com/news/local/courier_times_news/denied… – Cached

3. CALIFORNIA DUI CONVICTION CAN PREVENT ENTRY INTO CANADA …

CALIFORNIA DUI CONVICTION CAN PREVENT ENTRY INTO CANADA :: California Criminal … exercising their discretion to deny entry than to grant entry. Even if a Canadian …

www.californiacriminallawyerblog.com/…/california_dui… – Cached

4. Traveling to Canada – DUI Lawyers DWI Attorneys help with dui …

… Officers have ultimate authority to permit and deny anyone entry to Canada. … Who Can’t Enter Canada. To begin, in Canada a DUI is a felony and therefore an excludable …

www.1800duilaws.com/article/travel_to_canada.asp – Cached

5. Entry into Canada

If you’ve been arrested: Entry into Canada. If you are convicted of DUI you may be denied entrance into Canada. Customs and Immigration Officers are granted ultimate …

www.valentinilaw.com/dui_info_center/entry_into_canada.php – Cached

6. Entering the U.S. and Canada with DUI offenses

Can I enter Canada and the U.S. if I have a DUI on my record? As a general rule … DUI conviction is not grounds to deny entry into the U.S; however, multiple DUI …

help.cbp.gov/app/answers/detail/a_id/402/… – Cached

7. Denied Entry into Canada – FishingBuddy.com : North Dakota …

Anyone been denied to Canada because of a DUI? Or should I say anyone gotten into the country with a DUI?

www.fishingbuddy.com/denied_entry_into_canada – Cached

8. DUI and crossing borders in Canada and Ireland (from the U.S …

My brother has a DUI record in the U.S. that is like 20 years old. Canada denied him entry last winter because of it. This after many, many years of safe and law …

www.fodors.com/…/dui-and-crossing-borders-in-canada-and… – Cached

9. Canada & DUI Conviction, Entering Canada, Crossing Border …

Felony criminal convictions will also deny entry into Canada. Canada and a DUI Conviction. Canada regards DUI / DWI as an extremely serious offense.

www.seattle-duiattorney.com/dui/canada.php – Cached

10. Local News | DUI record can keep you barred from Canada …

… DUI. The first the wife learned about it was when the husband was denied entry.” Bryan says he’s complained to Canadian … DUI can be denied entrance in Canada. …

seattletimes.nwsource.com/…/2009902952_canadadui20m.html – Cached

More results from seattletimes.nwsource.com »

 

 

Eric Deters Posts Message: “I’ll be back any day practicing law in Kentucky” – Hearing set for May 15 before character and fitness committee on his motion for reinstatement

Friday, May 4th, 2012

I’ll Be Back Any Day Practicing Law in Kentucky

 

I expect to receive a victory any day now from the Kentucky Supreme Court. There is a request pending before them to find the rule Jay Garrett, Interim Kentucky Bar Counsel, used to object to my automatic reinstatement on April 25 is unconstitutional. The Supreme Court in my matter previously changed two rules. I’m confident they will this one too. The Court can rule on it at any time. I went through a trial, a Board hearing and the Supreme Court, I defeated 15 of 19 charges and served 61 days suspension. For the prosecutor of me to be able to block that without any due process can’t hold up. I’ll put the link up later to my Petition to the Supreme Court. It’s like a prosecutor losing, but then gets the punishment they want. Jay Garrett failed to give me time to do that which I had time to do. It’s an outrage. For Jay Garrett, a lawyer who has never represented clients like me and has only worked at the Bar Counsel office, who I defeated, and who has immunity from all his lies (I’m challenging this too) to do this is a joke.

 

If for some reason the Court does not rule in my favor, I’m scheduled May 15 to have a hearing in front of the Character & Fitness Committee who I’m confident will recommend my reinstatement. They gave me an expedited hearing. I’m grateful. Why do I know they will recommend reinstatement? Because I served 61 days, I’ve complied with the Court’s Order and there are no complaints against me that would justify my not being reinstated. I haven’t harmed a client, stolen money, committed a crime or anything that I expect will rise to the level of concern to this Committee.

 

Also, as of today, and expected to continue, I’m alive and well practicing law in Ohio.

 

I have wonderful lawyers and staff handling the Kentuckymatters. Worse case scenario, they will have to for another month or two. In the big scheme of my life, my practice and my cases, it’s not the end of the world. It is unfair to my Kentucky clients and an inconvenience I don’t deserve. Jay Garrett wants it to be the end of my world. However, I predict he will be fired just like his boss, Linda Gosnell was fired. Since I allegedly played a role in that, maybe that’s why he’s doing this.

 

It is Jay Garrett who is not fit to practice law. I do it every day fighting for my clients and will continue to do so.

 

I want to thank all my clients, friends, family and fans for their continued support. I’ll be past this very soon and I’ll be in the courtroom fighting for my clients including Sarah Jones.

 

My cause is just. It is right. I will win. Remember, I predict I’ll be back and Jay Garrett will be fired. The Supreme Court and the Board of Governors won’t tolerate his baseless vindictiveness.

 

ENQUIRER ARTICLE DETAILS ERIC DETERS FIGHT WITH KBA

Thursday, May 3rd, 2012

Deters fights for reinstatement in Ky.

 

 

In 2007, Eric Deters screams from center court of the gym after he said he was denied a microphone by the Fiscal Court. Independence residents were upset over the possibility that the Kenton County Jail would be constructed on a site off of Pelly Road.

Written by  Jim Hannah -  Enquirer

 

 

Eric Deters is fighting for his law license. / The Enquirer/Patrick Reddy

SUSPENSION

The Kentucky Supreme Court suspended Eric Deters for 61 days for violating four ethics rules.

 

• By making a knowingly false statement concerning the qualifications or integrity of a judge. Justices said Deters alleged Grant Circuit Judge Stephen Bates made unfavorable ruling against Deters because he had supported the judge’s political opponent.

 

• Two violations stemmed from a legal dispute between divorced parents on who would represent Jacob Clise, a Grant County boy who was injured in a school bus crash when he was 14. Deters, who represented Clise’s mother, broke solicitation rules by calling Clise’s father while his son was in the hospital, according to the justices. They said Deters also made a false statement by listing Clise’s father’s name on a court pleading.

 

• Failed to return $1,500 fee to a former client, according to court records.

NEW ALLEGATIONS

The Kentucky Bar Association’s disciplinary counsel objected to the automatic reinstatement of Deters’ license because they claim:

• Deters did not complete his minimum annual continuing legal education requirements while on suspension.

• Didn’t pay a $1,834.02 fine on time.

• Failed to notify all of his Kentucky clients – within the prescribed time period – that he had been suspended.

• Continued to advertise that he was licensed to practice law in Kentucky.

The disciplinary counsel also objected because Deters is subject to nine other pending disciplinary matters before the Kentucky Bar Association. While eight of the pending complaints against Deters are secret, some details were revealed in court records:

• A lawyer Deters fired for alleged unethical conduct has filed a complaint.

• Four of Deters’ former clients have filed complaints. Deters claims he successfully sued one of these former clients in Ohio for not paying him attorney fees.

• A sixth complaint stems from when Deters’ filed a federal lawsuit against the bar association trying to prevent them for sanctioning him.

• A seventh complaint is a trial commissioner’s report recommending Deters be suspended for an additional 60 days involving his handling of a civil case six years ago in Campbell County. The commissioner found Deters’ “pleadings were interposed only for the purposes of harassing the defendants and to cause unnecessary delay.” It involved a dispute over home repairs.

 

Radio personality and attorney Eric Deters fashions himself as the lawyer who fights for the downtrodden. He calls himself “The Bulldog” and is known for taking on big government and the rich.

Now Deters finds himself in the fight of his life – to get his Kentucky law license reinstated and prevent Ohio from suspending him.

After Deters served a 61-day suspension for ethical lapses in Kentucky, the state’s chief disciplinarian for lawyers objected to the reinstatement of Deters’ license. Deters responded by petitioning the Kentucky Supreme Court demanding his license back. He has also asked the Ohio Supreme Court not to follow standard practice and impose the same suspension as Kentucky.

Deters, who once took on a detractor in a cage fight watched by hundreds at an Indiana fairgrounds, said Interim Chief Bar Counsel Jay Garrett “hates” him and is bent on violating his constitutional rights.

“I am very confident in winning before the Supreme Court,” Deters said.

His attorney, Larry Forgy, said Garrett is upset the Kentucky Supreme Court did not follow his office’s original recommendation to suspend Deters for 181 days. Forgy said Garrett is acting out of “spite.”

“Mr. Deters is under siege,” said Forgy, a former GOP gubernatorial candidate. “It is so unfair. Bar counsel is leading the charge. None of these false allegations even involve the allegations of moral turpitude, theft or serious misconduct warranting bar counsel’s step. Once again, bar counsel is unfairly piling on.”

Forgy said one can’t judge Deters based upon the bar complaints.

“He’s a celebrity,” Forgy said. “He has enemies. All the publicity of his bar battles has made him a target. It’s been very unfair.”

NOT AFRAID OF HIGH-PROFILE CASES

During 25 years of practice, Deters has taken on home building tycoon Ralph Drees, longtime Kenton County Attorney Garry Edmondson and prosecutors in Boone and Kenton counties.

Deters was the public face of a successful campaign to stop the construction of the Kenton County jail in Independence. He filed lawsuits, organized and rallied hundreds of irate homeowners and argued with Drees, who was the county judge-executive at the time.

He has shown his flair for publicity by taking on cases that grab national, and sometimes international, headlines. He has represented 2011 Ben-Gals cheerleading captain Sarah Jones in a potentially ground-breaking defamation lawsuit against the gossip website TheDirty.com which claimed she was promiscuous. When Jones was indicted this year on a charge alleging she had sex with an underage boy, Deters said he hoped to represent her at the criminal trial. Now it’s unclear if he will get that opportunity.

Deters also represented a former Dayton High School teacher who was found not guilty of first-degree sexual abuse. Nicole Howell, 26 at the time, was accused of having sex with a 16-year-old football player at her Main Strasse apartment.

‘KENTON COUNTY WASN’T READY FOR ERIC DETERS’

At the age of 24, Deters showed his political aspirations by becoming the Kenton County GOP chairman in 1988. He resigned in 1991 over a fight with then-U.S. Rep. Jim Bunning. The congressman appointed Deters, but Bunning was angered when Deters supported Forgy in the Republican gubernatorial primary that May.

In 2002, Deters unsuccessfully ran for Kenton County attorney, a move that angered Edmondson. When Deters lost, he admitted to being outspoken but said he was unfairly perceived as being too outspoken.

“I think people want the safe persona, and not somebody who tells it the way it is,” Deters said. “Minnesota was ready for Jesse Ventura but Kenton County wasn’t ready for Eric Deters.”

Deters has used his radio show and the Internet to speak about how he feels Kentucky’s way of policing its lawyers is fundamentally unfair. He claims free speech is being stifled and has vowed to take his grievances all the way to the U.S. Supreme Court. Deters’ listeners call in and often encourage him to continue fighting “the man.”

CONCERNS STILL REMAIN

If Deters isn’t successful before the Kentucky Supreme Court, it will be up to a four-member committee of the Kentucky Board of Bar Examiners to determine when, if ever, Deters’ license will be reinstated. That process usually takes four to six months, said Bonnie Kittinger, general counsel for the Kentucky Office of Bar Admissions.

Information on how many lawyers are referred to the group, called the Character and Fitness Committee, was not available but Kittinger said most lawyers do ultimately get reinstated. She said in her eight years on the job, only a half dozen lawyers were never reinstated.

She said the committee tries to avoid reinstating lawyers who will “embarrass the profession.”

Garrett initially objected to the reinstatement because he claimed Deters violated four terms of his suspension in addition to having nine other pending disciplinary matters before the Kentucky Bar Association.

Deters quickly addressed three of the objections by paying a previously imposed fine of $1,834.02, enrolling in continuing legal education classes all lawyers are required to complete, and notifying his clients that he had received a 61-day suspension.

Garrett later wrote Deters never stopped advertising. He attached a picture of Deters’ website that stated he was licensed to practice law in Kentucky. In more court filings, Forgy questioned what Garrett considers advertising. He said one webpage was just Deters’ Facebook profile.

One of the pending complaints against Deters has already resulted in a trial commission recommending Deters serve an additional 60-day suspension involving his handling of a civil case six years ago in Campbell County.

Deters had argued that he should not be suspended because it happened so long ago and that Campbell Circuit Judge Fred Stine already fined him about $22,000 for filing what was later deemed a frivolous suit.

Trial Commissioner W. E. Quisenberry Jr. wrote that he considered two prior private reprimands against Deters in determining his recommendation.

“The pattern of conduct demonstrated by the three cases within approximately 10 years represents a cavalier and irresponsible attitude toward the courts, the ethics rules and the legal system under which he appears, based on his resume, to be quite successful,” Quisenberry wrote.

Source: Kentucky Supreme Court filings. Source: Kentucky Supreme Court filings.

 

LAWREADER HAS 36,283 VISITORS IN APRIL…AN ALL TIME HIGH!

Thursday, May 3rd, 2012

 

In April of 2012 LawReader had an all time high for visitors in one month — 36,283.

Our two busiest days were April 26th. with 2,811 visitors and April 27th. with 2,915 visitors.

These numbers indicate that LawReader is the leading source of news and legal resources for the Ky. legal community.

Stan Billingsley, Senior Editor

 

Order Disbarring Attorney is Adequate Grounds to Preclude Professional Malpractice Liability Coverage

Thursday, May 3rd, 2012

 

By Todd McMurtry | tmcmurtry@dbllaw.com

 

The Sixth Circuit Court of Appeals ruled recently that the “May 20, 2010 Order of the Kentucky Supreme Court disbarring [Melbourne] Mills from the practice of law is sufficient basis for precluding coverage under [professional liability] policy’s dishonesty exclusion.” Continental Casualty Company v. Law Offices of Melbourne Mills, Jr., PLLC, Case No. 10-5813. In this case, Continental sought a judicial declaration that it was entitled to rescind Mill’s malpractice liability policy in part under the policy’s dishonesty exclusion. This exclusion bars coverage for any claim arising out of a “dishonest, fraudulent, or . . . malicious act or omission.”

 

The Court found that Mill’s answers to his August 2003 application to renew his professional liability policy were false. Mills answered “no” to the question “has any attorney been disbarred, suspended, formally reprimanded or subject to any disciplinary inquiry, complaint or proceeding for any reason other than non-payment of dues during the expiring policy period?” At that time, however, he was aware of a pending KBA investigation, and his attorney had the previous year attended a KBA Inquiry Commission hearing related to Mill’s involvement in the so-called “Fen Phen” litigation. Because Mills knew of the bar complaint, the trial court concluded that this answer constituted a material misrepresentation.

 

The Court also relied upon KRS 304.14-110, which states that a misrepresentation will bar coverage if “[t]he insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate . . . if the true facts had been made known to the insurer as required . . . by the application for the policy.”

 

Mills and the intervening class action plaintiffs relied upon Cont’l Cas. Co. v. Lampe & Hamblin, PLLC, No. 3:03CV604-H, 2004 WL 5708261, to argue that malpractice coverage shares the same public interest mandate as automobile insurance, and that such mandate “outweighs any right of an insurer to rescind an insurance contract.” Id at *3. The Court considered, but rejected this argument. As well, it found because Mills had not raised it at the district court level, it could not be considered on appeal.

In its conclusion, the Court took judicial notice of the Kentucky Supreme Court’s ruling disbarring Mills, and admitted that ruling under the public records exception to the hearsay rule, Fed. R. Evid. 803(8). The Court found this ruling a “sufficient basis” to preclude coverage.

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

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CHIEF JUSTICE MINTON FORCED TO TAKE SEVERE MEASURES TO BALANCE COURT SYSTEM BUDGET DUE TO LEGISLATIVE CUTS

Wednesday, May 2nd, 2012

 

Judicial Branch to shut down for 3 days as part of FY 2013 budget reduction plan

 

FRANKFORT, Ky., May 2, 2012 – Judicial Branch employees learned today that they will be furloughed for three days in the first half of Fiscal Year 2013 as a result of deep cuts the Kentucky General Assembly made to the court system’s budget for Fiscal Years 2013 and 2014. The furloughs will close courthouses statewide on Aug. 6, Sept. 4 and Oct. 15, 2012.

This marks the first time since Kentucky’s modern court system was formed in 1976 that the Judicial Branch must close courthouse doors to balance its budget.

Furloughs are one of several measures included in the Judicial Branch’s budget reduction plan for FY 2013. Chief Justice of Kentucky John D. Minton Jr. announced details of the plan today in an email to all Kentucky Court of Justice personnel. He also noted that the legislature did not fund a pay equity plan that would make Judicial Branch salaries competitive with the other two branches of government and a capital project to replace the court system’s obsolete case management system, which is at risk for failure.

With final passage of House Bill 269, the Kentucky General Assembly reduced the total funds available to the Judicial Branch by $25.2 million for Fiscal Year 2013. This includes a permanent reduction to the annual base operating budget of $16.2 million and a one-time transfer of $9 million in payroll to the state’s general fund by June 30, 2012. The legislature mandated that this amount for the June 30 state payroll be moved to July 2 to shift that expense to the next fiscal year.

“Our situation is serious,” Chief Justice Minton said. “In spite of our efforts to secure adequate funding, the legislature’s appropriation is far short of what is necessary to operate the Kentucky court system for the next two years. These recent reductions are especially challenging because they’ve come quickly on the heels of other cutbacks.”

Since the economic crisis began in 2008, the Judicial Branch has cut 282 employees statewide, eliminated court programs and trimmed operating costs at all four levels of the court system to stay within budget.

“Until now, we were able to take aggressive measures to avoid furloughs and keep courts open,” Chief Justice Minton said. “But there are only so many places to cut in a court operations budget that is 86 percent personnel. When there’s such a large gap between what we ask for and what we receive, difficult decisions must be made.”

The following actions will take effect July 1, 2012, unless otherwise noted:

FY 2013 BUDGET REDUCTION PLAN

Reductions

•Close the Kentucky court system statewide to furlough all KCOJ employees for three days in 2012 – Aug. 6, Sept. 4 and Oct. 15.

•Implement hiring restrictions requiring a new process to fill vacancies.

•Convert 100-hour part-time employees with benefits to 80-hour part-time employees without benefits on June 30, 2013.

•Reduce and cap the number of Drug Court participants.

•Reduce operating expenditures by $1.6 million.

•Eliminate the Kentucky High School Mock Trial Tournament program.

Criminal Record Reports

•Charge Kentucky schools $10 for criminal record reports they currently receive for free.

• Increase the cost of criminal record reports for all other customers from $15 to $20.

The Supreme Court and leadership from the Administrative Office of the Courts will meet again in January 2013 to determine if additional furloughs and reductions are necessary for the remainder of FY 2013, which runs July 1, 2012, to June 30, 2013. They will also begin drafting a budget reduction plan for FY 2014, which presents an even greater shortfall than in FY 2013.

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The chief justice of Kentucky is the administrative head of the state’s court system and is responsible for its operation. The Administrative Office of the Courts is the operational arm of the court system. The AOC executes the Judicial Branch budget and supports the activities of nearly 3,300 court system employees and 403 elected justices, judges and circuit court clerks.