Archive for October, 2012

COAKY Upholds Trial Court’s Exclusion of Collateral Impeachment of Defendant/Experts and Allowing Separate Defendants to Call Overlapping Experts; Also Discusses Deutsch v. Shein Instruction on Superseding Intervening Cause

Wednesday, October 31st, 2012

By David Kramer |

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In Branham v. Rock, 2010-CA-2292 (, the Kentucky Court of Appeals, in a decision written by Chief Judge Glenn Acree, upheld a defense jury verdict in a medical negligence action. Although the opinion was not designated for publication and is not yet final, it is instructive on a number of issues that regularly arise in civil actions alleging professional negligence and those involving numerous expert witnesses.

Among the trial court errors asserted by the plaintiff/appellant were that the plaintiff at trial should have been able to introduce evidence of a prior unrelated medical licensure investigation on the part of one of the defendant physicians, who was also designated as an expert witness. The Court of Appeals held that the circumstances of the physician’s licensure discipline were not relevant to the issue whether the physician had deviated from the standard of care in the case at hand, and thus were properly excluded as collateral impeachment. The appellant similarly claimed that he should have been able to introduce evidence that another defendant physician had twice failed his medical licensure exam before passing it. Noting the the exam failures were 6-7 years before the care at issue, the Court also found this evidence collateral and properly excluded.

The appellant also argued that the trial court should have limited the separate defendants from calling multiple expert witnesses from the same specialty, so that only one expert from a particular discipline should have been permitted to testify on behalf of all defendants. The Court essentially said that when a plaintiff sues multiple defendants, each defendant has a right to call his or her own witness in any relevant discipline, though ultimately the trial court retains discretion under KRE 403 to exclude testimony that would result in undue delay or needless presentation of cumulative evidence. The Court of Appeals found no abuse of discretion.

Lastly, the Court upheld the trial court’s jury instruction on causation, holding that an interrogatory asking the jury whether the defendant’s alleged negligence was a substantial factor in causing the event that caused injury — as opposed to a substantial factor in causing the injury itself, as is usually stated in Kentucky jury instructions — is required only when the defendant asserts that there was a superseding intervening cause of the injury, under the case of Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980).

The COAKY opinion in Branham v. Rock is not final as of the date of this posting. Nonfinal opinions should never be cited as authority in Kentucky. Once final, unpublished opinions may be cited only in conformity with CR 76.28(4)(c).

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

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See the 10 worst ABA-accredited law schools in America

Wednesday, October 31st, 2012

By Eric Owens the Daily Caller 10/31/2012

Whittier Law School in Orange County, California is, officially, the worst law school in the United States. Appalachian School of Law edges out the University of Law Verne College of Law and several other richly deserving candidates for second-worst place.

Whittier, Appalachian and La Verne essentially tied for the uncoveted bottom spot, but Whittier “won” the tiebreaker, thanks to a pitiful 17.1 percent employment score. In addition Whittier’s 61 percent under-employment score is the highest among all ABA-approved schools.

(California and Florida have a long list of inferior law schools.)
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Autopsy of Judge Eddie Lovelace Indicates Medical Malpractice – Pain shots contained fungus

Wednesday, October 31st, 2012

Oct. 31, 2012
By BRUCE SCHREINER — Associated Press
LOUISVILLE, Ky. — A forensic pathologist says an autopsy shows a Kentucky judge’s death was linked to tainted steroid shots at a Tennessee clinic.
George Nichols II performed the autopsy of Eddie Lovelace’s body at the request of the judge’s family.
Nichols said Wednesday the seemingly routine shots Lovelace received for neck and back pain contained a fungus. Nichols said the fungus caused a blood vessel infection, which in turn caused a stroke and Lovelace’s eventual death.
Lovelace was a longtime circuit judge in southern Kentucky who died Sept. 17 at Vanderbilt University Medical Center in Nashville, Tenn.
He had received the injections at Saint Thomas Outpatient Neurosurgery Center in Nashville.
The tainted injections have been blamed for 28 deaths and 363 illnesses nationwide.
The injections were made by a Massachusetts specialty pharmacy.

Read more here:


Wednesday, October 31st, 2012

OCT. 31, 2012
Bill Estep Lexington Herald-Leader
Eight years ago, Will T. Scott narrowly unseated Supreme Court Justice Janet Stumbo in an Eastern Kentucky race that included bare-knuckled broadsides and charges of deceit. Now, with Scott as the incumbent and Stumbo trying to win back the seat, the rematch is no nicer.

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Scott has run advertisements accusing Stumbo of being soft on crime. One television ad showed the mug shots of two black men and said Stumbo, who is on the Court of Appeals, voted to overturn their convictions for murdering a pregnant woman.
Stumbo ran an ad saying Scott voted against the abuse conviction of a man who confined three of his young children in their rooms without access to food, water or a bathroom during the summer, while he slept in another room with the only fan. When authorities found the children, all three were soiled, and one had eaten feces, apparently because he was hungry, according to the court decision.

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“It’s turned pretty harsh,” Pikeville attorney Larry Webster said of the race for Kentucky’s 7th Supreme Court District, which covers 22 counties in Eastern Kentucky.
Scott’s ad featuring photos of the two black men was false and misleading because it used images of pregnant white women apparently not involved in the case, the Kentucky Judicial Campaign Conduct Committee said this week. The committee also said the repetitive use of photos of the black men, juxtaposed with photos of white women, appeared “to be designed to appeal to racial prejudice.”
The committee is an independent, non-partisan citizens’ group that encourages judicial candidates to avoid false or misleading advertising.
The panel also said that one of Scott’s newspaper ads was misleading and that Stumbo’s radio ad about the case of the children confined to their rooms was misleading because it said the boy ate feces to “avoid starvation,” when the court opinion mentioned only hunger.
Stumbo said she considered that a minor error in language, but she asked media outlets to stop running the ad.
Scott, however, continues to run “100 percent misleading attack ads,” Stumbo said in a news release which described Scott’s allegedly racially tinged ad as “beyond shameful.”
Scott said it was “absolutely not true” that his ad with photos of the two black men was designed to appeal to prejudice. Scott said he picked the cases to show Stumbo’s divide from other justices, not because of the race of the defendants or victims.
Scott said he has not run intentionally misleading ads. He is unapologetic about what he sees as his fair-game efforts to define himself and Stumbo.
Voters need information to make an important decision, Scott said, citing a U.S. Supreme Court case that said judicial elections can’t be run under rules of “state-imposed voter ignorance” that bar candidates from discussing issues.
The race has been expensive as well as contentious.
Stumbo reported total campaign receipts of $154,108 as of Oct. 22, much of it her own money, and spending of $111,360.
Scott reported campaign receipts of $240,919 as of Oct. 5, much of it carried over from the primary, and spending of just $13,239. That left $227,679 to spend in the last month of the race.
As of Tuesday, the Kentucky Registry of Election Finance had not received Scott’s most recent finance report, which was due Oct. 22. There is a one-week grace period.
Stumbo said that Scott would outspend her but that she had the resources to win the race.
There are seven justices on the state’s highest court, which decides appeals from lower courts in decisions that interpret state law and set precedent. The justices serve eight-year terms and are paid $135,502 annually.
Janet Stumbo
Stumbo was the first woman elected to the Kentucky Court of Appeals from Eastern Kentucky and the first woman ever elected to the state Supreme Court.
A key issue for her in the race is that the court system needs to be improved, she said. Family courts need to be made available statewide, and adult and juvenile drug courts should be reinstated across Kentucky, she said.
Drug-court staffing has been cut back even though the program produces greater savings than it costs, Stumbo said. If there is no other way to pay for the needed improvements, she said, the court system should consider proposing higher court filing fees.
“I don’t think it will restrict access to the courts,” Stumbo said of higher filing fees, because poorer people could ask judges to let them file cases for free.
Stumbo said her 21 years of experience as an appellate judge and her ability to build consensus and write clear opinions make her the better choice for the Supreme Court.
Stumbo also said she has worked to improve the courts, heading a pilot program to create family courts and writing rules to make the discipline system for judges and attorneys more open.
Will T. Scott
Scott interrupted college to join the Army, serving in Vietnam before finishing his education.
Scott said he has worked as a public defender, an assistant prosecutor and in private practice, and he cleaned up a backlog of cases after being elected circuit judge in Pike County in 1983, holding court on Saturday at times.
Scott said the state should bring back adult and juvenile drug courts that have been cut.
He says adult drug-court programs could be more effective, however, if the state would create a minimum-security prison so people who make a mistake in drug court could go there for education and counseling, then come back to drug court when they are ready. That would help more people succeed in drug court, getting their lives back on track while saving the state money on prison costs, he said.
Scott, the most senior justice, said he has been able to craft important opinions on the state’s high court.
“I’ve been fighting since I was 19 for my people and for my part of Kentucky,” he said.
Conservative or liberal?
Scott has argued during the Supreme Court campaign that he is a conservative, while Stumbo was seen as the most liberal justice when she was on the high court.
“They’ve got to look at me as a conservative and her as a reliable liberal,” Scott said of voters.
During the last five years that Stumbo was on the Supreme Court, she voted to reverse criminal convictions 62 percent of the time in published cases, Scott said.
By contrast, Scott said, he voted to affirm convictions 62 percent of the time during the past five years.
The Kentucky Judicial Campaign Conduct Committee said Scott’s claim that Stumbo often sided with criminals “misrepresents the role of a judge or justice, which is to base decisions on the law and not take sides.”
Scott, who has been endorsed by state prosecutors, said it’s not unusual to have cases decided by a 4-3 vote on the court, illustrating how a single judge’s philosophy and outlook can make a vital difference in how cases turn out.
“I’ve always believed that judicial philosophy is important to the voters,” Scott said.
Stumbo said she doesn’t think it’s fair for Scott to characterize her as a liberal.
“Liberal and conservative are not labels that should be applied to judges,” she said.
Judges should not consider the social ramifications of decisions, but rather apply the law to the facts of each case, Stumbo said.
She said she has been sensitive to constitutional rights, including those of accused people. But her votes to vacate convictions meant sending the cases back to a lower court for further action, not dismissing the cases, she said.
“I think that makes me someone who is interested in upholding the law and the Constitution,” Stumbo said.

Read more here:

Senator Harry Reid Promises Filibuster Reform If he retains a majority and if Obama is re-elected

Saturday, October 27th, 2012

In May, Harry Reid apologized for killing off a 2010 filibuster reform bill, admitting that the legislative procedure has been “abused, abused, and abused.” Reid has now gone a step farther: the Senate Majority Leader is now openly promising to pass filibuster reform in the beginning of the next Congress if Democrats manage to hold onto a simple majority in the Senate and if Obama is reelected.
Reid made the remarks on Friday to MSNBC’s Ed Schultz, a day after Democrats were unable to overcome the GOP threat of a filibuster on a small-business tax-cut bill, which failed on a 53-44 vote:
REID: They’re just trying to kill this bill, as they’ve killed scores of other bills we’ve had because they’re filibustering. They’re filibustering until we have to change the rules. We can’t go on like this anymore. I don’t want to get rid of the filibuster, but I have to tell you, I want to change the rules and make the filibuster meaningful. The filibuster is not part of our constitution, it came about as a result of our wanting to get legislation passed, and now it’s being used to stop legislation from passing.
SCHULTZ: But you’d change the rules…
REID: Oh, we could have done it in the last Congress. But I got on the Senate floor and said that I made a mistake and I should have helped with that. It can be done if Obama is re-elected, and I can still do it if I have a majority, we can do it with a simple majority at the beginning of the next Congress.
SCHULTZ: Think the President will go along with that?
REID: You damn betcha.
A bit later in the interview, Reid reiterated his promise:
SCHULTZ: Would you make that as a commitment if Barack Obama were reelected and the Democrats keep the Senate?
REID: Yes. I don’t know how many people watch C-Span on any given day, but I’ve said so right before everybody there, that’s what I would do.
Reid’s remarks have heartened filibuster-reform advocates who supported the 2010 Merkley-Udall-Harkin bill, sponsored mostly by Senate Democratic freshmen. Fix the Senate Now — a progressive coalition including the Communications Workers of America, the Sierra Club, and Common Cause — is reconvening this week in an attempt to revive the issue.
“We’ve remained frustrated with the Republicans’ real abuse of the Senate rules,” says Shane Larson, CWA’s legislative director. He describes the group as “very, very pleased” with Reid’s most recent remarks on the issue. “He made it clear that he would do it, and that it could be done on the first day with a simple majority. It goes much farther than what he stated on the floor in May,” Larson added.
Update: Don Stewart, a spokesman for Senate GOP minority leader Mitch McConnell, asks whether Harry Reid would still push for filibuster reform if Democrats lost their majority. “We’re always curious if those who want to limit the rights if the minority are willing to live by the same rules they’re calling for now,” he tells me. “Will they refuse the filibuster?”
Reid’s office denies that he would have a change of heart if Democrats were in the minority. “He’d still advocate for his position, he just wouldn’t be in a position to do anything about it unless a bunch of Republicans suddenly have a change of heart,” says Reid spokesman Adam Jentleson. “His position won’t change. He’s convinced of the need for change.”


Friday, October 26th, 2012

FRANKFORT — Kentucky Senate President David Williams, a Republican reviled by the Democrats he has stymied for nearly 13 years, will resign his post Nov. 2 to accept a judicial appointment by Gov. Steve Beshear.

In a widely anticipated move, the Democratic governor selected his longtime political foe Friday to fill an open circuit court judgeship in Southern Kentucky.

The Burkesville Republican’s appointment leaves a void in Republican Senate leadership for the first time since Republicans assumed control of the Senate in 2000.

Senate Majority Leader Robert Stivers, R-Manchester, said late in the day he had contacted Senate Republicans to inform them that he will pursue the presidency if the GOP remains the majority party in the Senate after the Nov. 6 elections.

Stivers said he did not advise Williams about the judicial position, “but I wish him the very best.”

Senate State and Local Government Chairman Damon Thayer, R-Georgetown, said if Stivers seeks the presidency, he would run for Senate majority leader. Thayer worked unsuccessfully with Beshear this year in trying to get a constitutional amendment on the ballot to allow expanded gambling.

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When a Spouse leaves the other and commits an Act of Adultery, does he or she forfeit their right to and interest in the other’s property and estate?

Thursday, October 25th, 2012

By Nicholas M Nighswander

KRS 392.090(2) states that “[i]f either spouse voluntarily leaves the other and ‘lives in adultery’, the offending party forfeits all right in and to property of the estate of the other, unless they afterward become reconciled and live together as husband and wife (emphasis added)”.
In the case of Griffin vs. Rice, ___ S.W.3rd ____, rendered September 20, 2012 to be published, the Kentucky Supreme Court affirmed a Kentucky Court of Appeals decision reversing a trial court decision interpreting KRS 392.090(2) and opined that “one act of adultery” does not mean “lives in adultery” according to the statute.

At a trial over who should inherit from Curtis estate, the following facts of the case were developed. Curtis and Kathy Rice were married in February of 2004 and in July of 2004 separated when Kathy voluntarily left Curtis, filed for divorce and for a domestic violence order against Curtis. Curtis entered an appearance in the divorce case and then moved in with his mother Jackie Griffin. No further action was taken by Curtis or Kathy in the divorce case. Curtis later died in a work related accident on September 12, 2004 while still separated from Kathy. Kathy apparently on the night before Curtis’ death had sexual relations with another man.

Jackie Griffin was appointed Administratrix of her son Curtis’ probate estate as he died without a will. Jackie sought to disinherit Kathy Curtis pursuant to KRS 292.090(2) in a declaratory judgment action in Circuit Court on the grounds that Kathy Rice was living in adultery with another man. This was alleged to occur after she separated from Curtis Rice and while he and Kathy were still married. Kathy in response moved for summary judgment in her favor that her right to inherit was not forfeited.

On that basis Jackie Griffin argued on behalf of her son’s estate (and we presume also on her own behalf) through an affidavit and testimony of a Mr. Halcomb that Kathy met him in a bar, became intoxicated and had sexual relations with him the night before Curtis’ death. Kathy on the other hand denied any such sexual encounter. There was also proof offered that Kathy may of had a child by another man other than Mr. Halcomb on June 5, 2005 within the nine-month time period involving Curtis’ death. Paternity of that child was not established at the time of the trial.

The trial court believed Mr. Halcomb to be a credible witness and found that Kathy was living in adultery and forfeited her right to any property in Curtis’ probate estate. The Court of Appeals reversed on the basis that one act of adultery was not living in adultery as required by the statute to forfeit your inheritance. The Kentucky Supreme Court affirmed the Court of Appeals.
The Kentucky Supreme Court reasoned that the statute creates two issues to consider for this case. First, whether a spouse voluntarily leaves the other, which was not at issue here because of the separation and pending divorce, and second, that the offending spouse “lives in adultery”.

A review of a Kentucky case from 1888 helped the Court reach its decision. It was opined then and reaffirmed now that, if any spouse voluntarily left the other spouse and took up with another on a periodic and recurring basis even though they did not live together, that conduct was sufficient to establish living in adultery for purposes of disinheritance under the statute. However, from the same case it was determined that one random act without more was not.

Legal Tip: Reconcile with your spouse, complete the divorce proceeding or have a pre-nuptial or post-nuptial agreement in place that would address a separation period prior to dissolution for inheritance purposes.
A full text of the Kentucky Supreme Court’s Opinion can be found at:

This case is final and can be cited as authority.


Thursday, October 25th, 2012

Kentucky’s Egregious Death Penalty

Published: October 24, 2012


The Kentucky Commission on Human Rights voted unanimously last week to recommend that the state abolish the death penalty. There is every reason for Kentucky to take the advice and become the 18th state to prohibit capital punishment.

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The death penalty in Kentucky is colossally unfair, costly and riddled with constitutional error. From 1976 through last year, of the 78 people sentenced to death in the state, 50 had their sentences overturned on appeal, with 15 of those for prosecutorial mistakes or misconduct.

In December, a report conducted by the American Bar Association based on a two-year review by a team of lawyers, professors and former members of the State Supreme Court found enormous problems with the state’s capital system.

Kentucky’s laws and procedures, the report said, failed to “protect the innocent, convict the guilty and ensure the fair and efficient enforcement of criminal law in death penalty cases.”

For instance, among the state’s 57 prosecutors’ offices, some “will charge every death-eligible case as a capital case” while most others do not. This means that the pursuit of the death penalty in Kentucky is largely arbitrary and capricious, determined by which office happens to be prosecuting the case.

Judges presiding over capital trials often give inadequate jury instructions so that almost half of the jurors interviewed in a long-term study did not understand that they could consider mitigating evidence at sentencing, which could allow them to avoid imposing the death penalty. The system does not protect the rights of people with severe mental illnesses who, the United States Supreme Court has said, cannot be sentenced to death. And there are no standards governing the qualifications for lawyers who handle capital cases, with dreadful consequences: 10 of the 78 people sentenced to death had lawyers who were later disbarred.

In 2010, a state court blocked Kentucky from executing anyone because of “substantial legal questions regarding the validity” of its lethal injection protocol. That ruling alone should be the end of capital punishment.

Kentucky can ensure that heinous criminals are no longer threats to society by sentencing them to life without parole. It is time for the state to end the death penalty.

Ky. Supreme Court Sets New Standards For Consideration of Grand Parent Visitation Rights

Thursday, October 25th, 2012

The Kentucky Supreme Court has made it harder for grandparents to win visitation with their grandchildren when the child’s parents object.

In a 6-1 ruling, the state’s high court ruled Thursday that parents who oppose giving a grandparent visitation must be presumed to be acting in their child’s best interests.

The court did not strike down Kentucky’s 1984 grandparent visitation law but said a grandparent must present “clear and convincing” evidence to win a right to visit a grandchild over a parent’s objection.

“Kentucky courts cannot presume that grandparents and grandchildren will always benefit from contact with each other,” the court ruled. “If the only proof that a grandparent can present is that they spent time with the child and attended holidays and special occasions, this alone cannot overcome the presumption that the parent is acting in the child’s best interest.”

Writing for the court, Chief Justice John D. Minton Jr., said “the grandparent must show something more — that the grandparent and child shared such a close bond that to sever contact would cause distress to the child.”

Louisville family lawyers not involved in the case said the ruling will make it extremely hard for grandparents to win court-ordered visitation rights over a parent’s objection.

“That is an awful high legal standard,” said former Jefferson Family Court Judge Louis Waterman, adding that it gives “near-total authority” to parents.

The court reversed an order from Jefferson Family Court Judge Dolly Wisman Berry, giving visitation to Donna S. Blair for her grandson B.B, who is now 8, over the objection of his mother, Michelle L. Walker.

Sen. David Williams Nominated for Vacant Cirt. Judge Slot – Judicial Nominating Commission announces nominees for vacant judgeship in 40th Judicial Circuit

Thursday, October 25th, 2012

FRANKFORT, Ky., Oct. 25, 2012 – The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., met today in Burkesville, Ky., to choose three nominees to fill the vacant Circuit Court judgeship in the 40th Judicial Circuit. The 40th Circuit consists of Clinton, Cumberland and Monroe counties. The judicial vacancy was created by the passing of Circuit Judge Eddie C. Lovelace on Sept. 17, 2012.

These three attorneys, all of whom reside in Burkesville, have been named as nominees to fill the vacancy:

Angela M. Capps. Capps is serving as the public defender for Clinton County. She holds a juris doctor from the Northern Kentucky University Salmon P. Chase College of Law.

Stephen Douglas Hurt. Hurt is serving as a senior judge after retiring as a district judge in 2009. He earned a juris doctor from the Northern Kentucky University Salmon P. Chase College of Law.

David L. Williams. Williams is president of the Kentucky State Senate. He represents Senate District 16. He earned a juris doctor from the University of Louisville Louis D. Brandeis School of Law.

The person appointed to fill this vacancy will serve the two years remaining in the term of the late Judge Lovelace. If the appointee wishes to retain this seat, he or she must run for office in the next regularly scheduled election for circuit judges in 2014.

The names of the three nominees will now go to Gov. Steve Beshear who will select the nominee to serve the unexpired term.

Gov. Beshear: Kentucky Ranks Second-Highest in Job Growth in U.S.

Wednesday, October 24th, 2012

Governor Steve Beshear’s Communications Office

Press Release Date:

Wednesday, October 24, 2012

Revision Date:

Wednesday, October 24, 2012

Contact Information:

Kerri Richardson
Terry Sebastian

Kentucky job growth more than double the state average of 12 regional competitors

FRANKFORT Ky. – Governor Steve Beshear today announced Kentucky ranked second in the nation for job growth over the past year, according to the U. S. Bureau of Labor Statistics, Division of Current Employment Statistics.

The Regional and State Employment and Unemployment Summary, released Friday, finds that Kentucky’s net job growth from September 2011 to September 2012 was 2.6 percent, second best in the nation behind only North Dakota’s 5.6 percent growth.

“This ranking is an extraordinary accomplishment for our state and our outstanding workforce. My administration has been working tirelessly over the past five years to create and grow jobs in the Commonwealth, and this announcement shows we are significantly outperforming our competitors,” said Gov. Beshear. “We are making progress, but we still have work to do. We will never stop pushing for more jobs and a stronger economy for the Commonwealth.”

Kentucky’s jobs growth was more than double the Kentucky competitor state average of 1.1 percent. Kentucky’s competitor states, listed in order of ranking, include Indiana, Ohio, South Carolina, Georgia, Virginia, Illinois, North Carolina, Tennessee, Alabama, Missouri, Mississippi and West Virginia (see attached PDF table).

From Sept. 2011 to Sept. 2012, 47,000 jobs were created in Kentucky. Some of the new jobs created over the past year stem from growth at companies such as General Electric, Ford and CaféPress in Louisville; DHL and ZF Steering in Northern Kentucky; Tempur-Pedic in Lexington; New York Blower in Leitchfield; Bruss North America in Russell Springs; Magna Seating in Shepherdsville; Wild Turkey in Lawrenceburg; and Akebono Brake in Glasgow.

“The numbers show the Commonwealth is heading in the right direction, and the Cabinet for Economic Development will do everything in our power to keep growing jobs here,” said Cabinet for Economic Development Secretary Larry Hayes. “Keep in mind that North Dakota’s employment is booming because of the recent discovery of new oil and gas fields. In Kentucky, our job growth is across multiple sectors, in small businesses and large businesses. That gives a lot of folks opportunities in Kentucky, and these numbers show our state is a perfect location to do business.”

The United States Bureau of Labor Statistics report can be found in full at

Information on Kentucky’s economic development efforts and programs is available at Fans of the Cabinet for Economic Development can also join the discussion on Facebook at or follow on Twitter at

October 31st is Deadline For Nominating Candidates for KBA Board of Governors – Don’t just complain…run someone who will make a change!

Saturday, October 20th, 2012

A lot of attorneys are complaining about the actions of the KBA. They are spending hundred’s of thousands of dues money for hiring of outside counsel, they refuse to disclose to members how much they are spending out of their $5 million dollar annual budget …..and there is no rule which says they can hide their expenditures from members of the Bar. If you are unhappy about this…then run for the Board of Governors and change the way lawyers are being treated by the current Board members. You must have your nomination form delivered to the KBA no later than 5 pm on Oct. 31st.


Seven members of the Ky. Bar Association are up for election this year. Nominations must be submitted by Oct. 31, 2012. Find more information by logging on to the KBA website.

We, the undersigned, being members in good standing of the Ky. Bar Association, and residents of the _____Supreme Court District, do hereby nominate the Hon._____________________________whose address is_____________________________, for election to the office of Board of Governors of the Kentucky Bar Association for the _____Supreme Court District, in the 2012 election.
Name Address

Hon. John D. Meyers, Executive Director
Kentucky Bar Association
514 W. Main Street
Frankfort KY 40601-1812


Thursday, October 18th, 2012

By Retired Judge Stan Billingsley

Life’s day to day problems sometimes are very simple in comparison with major issues of war, peace, taxes, the financial stability of my state retirement program, and death, but there is one small problem that bothers me to a great degree. This concerns a quality of life issue, which is of great importance to me.

The inferior plastic bags used by the Courier-Journal guarantee that if there is a drop of rain in North America, my daily newspaper is soaking wet when I go out in the morning to pick it up.
I purchase two newspapers, both published by Gannett publishers. The Louisville-Courier Journal and the Cincinnati/No. Kentucky Enquirer.

The Courier-Journal plastic bags are the cheapest type of plastic bag. Well…I admit the bags at Wal-Mart are worse. (I recently picked up a small bag of groceries at Wal-Mart and the handles ripped off from the weight of two cans of beans and a loaf of bread.) I have never had a newspaper bag rip when I picked up the newspaper.

On the other hand, I find that there can be a deluge and flooding in Carrollton and my Cincinnati/No. Ky. Enquirer newspaper is always bone dry. The quality of the Enquirer plastic newspaper covers are of a higher quality, and I never have the frustration of having to dry out my newspaper in the oven when my wife is trying to cook Sunday dinner.

You may question my right to raise such an argument, without studying the science of the issue.

I have performed a scientific test on the two different types of plastic newspaper cover sleeves.

First I took my Enquirer from the delivery spot in my concrete driveway, and removed the newspaper. I then did the same with my Courier-Journal.

I then took both bags to the kitchen and filled them half full with tap water. The Enquirer plastic newspaper cover held the water and proved that it was not porous.
I then filled the plastic bag in which my Courier-Journal had been delivered. And lo and behold, the bag leaked like a sieve. The bag just would not hold the water. There were twenty or more places in which the water dripped out in discernible streams.

Now I did make one scientific assumption. I assumed that if water could leak from the inside out, that it could also leak from the outside in. While this leaves some degree of doubt, I concluded that my Courier Journal is always wet whenever there is rain, and the Enquirer never allows my paper is wet when I fetch it.

I am satisfied that I have proven by a preponderance of the evidence that there are serious leaks at the Courier-Journal.

Both newspapers are owned by the same corporate trust, Gannett. It hurts my pride that a Cincinnati newspaper is better in any way then my beloved Courier-Journal.
Perhaps I can inspire someone who reads this to perform this test on the plastic bag which the Lexington Herald-Leader comes in, and see if the bag is dry or does it leak?
Perhaps others who are beleaguered by this problem will join with me, and we can march on the C-J building on Broadway Street in Louisville.

COAKY Holds No Appeal Lies From Dismissal of Action That is Not “Involuntarily Adverse”

Thursday, October 18th, 2012

By David Kramer |

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In Stoecklin v. River Metal Recycling, LLC, 370 S.W.3d 527 (Ky. App. 2012), the Kentucky Court of Appeals dismissed an appeal brought by the appellant after an agreed dismissal with prejudice had been entered to facilitate and “self-expedite” appellate review of an adverse evidentiary ruling. The trial court had barred the plaintiff from calling an expert witness due to late disclosure, and the plaintiff believed he could not meet his burden of proof without this expert, despite the fact that he had disclosed two other experts.

The appellant argued that the appeal came within a narrow exception to the rule that one cannot appeal unless there is an “involuntarily adverse” judgment. That exception holds that an appeal will lie from a voluntary dismissal that is entered to expedite review of a trial court order that has the effect of dismissing the complaint. See, e.g., Raceway Properties, Inc. v. Emprise Corp., 613 F. 2d 656 (6th Cir. 1980). The appellant analogized the situation in the Stoecklin case to Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), in which the trial court denied the plaintiff’s request to name an expert after the witness disclosure deadline had run and entered summary judgment. In Ward, the Court of Appeals reversed and held that dismissal with prejudice should not be used as a sanction for failing to meet discovery deadlines without analysis of certain aggravating factors and consideration of lesser sanctions.

In Stoecklin, the Court of Appeal distinguished Ward v. Housman, holding that there was no showing that preclusion of the late expert had the effect of dismissal of the plaintiff’s case. Thus, the exception to the general rule that one may appeal only a judgment that is involuntarily adverse did not apply.

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

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Thursday, October 18th, 2012

The current 12 hour reporting period has been suspended due to budget cuts and new burdens on caseloads.

Ky. Supreme Court ORDER 2012-12

In Re: Emergency Suspension of 12-hour time restriction imposed by RCr 4.20(1)

Section 1. Statement of Purpose
Over the past four years, Kentucky’s Judicial Branch has experienced reductions of unprecedented proportions to its operating budget. The Court of Justice has cut 282 employees statewide, eliminated court programs, and trimmed operating costs at all four levels of the court system to stay within budget. Most recently, with final passage of HB 269, the Kentucky General Assembly reduced the total funds available to the Judicial Branch by $25.2 million for Fiscal Year 2013, which 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. These latest reductions profoundly affect the daily operation of the Judicial Branch. The situation for Fiscal Year 2014 is similarly bleak, with a projected $29.7 million deficit in court operations.
At the same time, the implementation of HB 463 (2011) has resulted in a sharp increase in the supervisory caseload for Court of Justice Pretrial Officers. From June 8, 2011, to October 1, 2012, pretrial officers supervised an additional 1,100 defendants and made an additional 36,733 defendant contacts as part of the supervision required for those on monitored conditional release and diversion. Additionally, during this period, a significant number of pretrial officers left for higher-paying jobs, resulting in a high turnover rate and a less-experienced workforce.
Currently, pretrial officers in urban areas operate twenty-four hours a day, seven days a week, in three shifts daily. In rural areas, officers work split shifts (morning and evening). However, the budget reductions, increased supervisory caseloads, and loss of experienced personnel compel the Division of Pretrial Services to concentrate its efforts and use its workforce in shifts that reduce travel and are more conducive to retaining staff. As such, extraordinary circumstances require adoption of this Order, which is intended to ease the 12-hour restriction imposed upon pretrial officers by this Court with respect to the performance of their duties under RCr 4.06.1
1 Kentucky is currently the only state with a pretrial program that requires a specific time frame in which officers must conduct an investigation. The federal system operates under County of Riverside v. McLaughlin, 500 U.S. 44 (1991), a U.S. Supreme Court case that requires probable cause to be determined within 48 hours of a warrantless arrest.

Section 2. Statement of Authority
Section 116 of the Kentucky Constitution, gives the Supreme Court authority to promulgate rules and issue orders of practice and procedure for the administration of justice in all civil and criminal actions, and for all proceedings in the courts of this Commonwealth. This Order does not abridge, enlarge, or modify the substantive rights of any litigant.

Section 3. Suspension of the 12-Hour Rule, RCr 4.20(1)
Beginning at 12:01 a.m. on October 21, 2012, the 12-hour time restriction imposed by RCr 4.20(1) is suspended. Beginning at 12:01 a.m. on October 21, 2012, the period of time in which pretrial officers are required to present information to a judge or trial commissioner to assist the determination of pretrial release and supervision is governed by Administrative Procedure Part XIV, Section 2.
This Order shall be effective at 12:01 a.m. on October 21, 2012, and until further Order of this Court.
Minton, C.J.; Abramson, Cunningham, Noble, Scott, and Venters, JJ., sitting. Minton, C.J.; Abramson, Cunningham, Noble, and Venters, JJ., concur. Scott, J., dissents and would not amend the twelve-hour rule. Schroder, J., not sitting.
Entered this 17th day of October, 2012.

/S/ John Minton Jr.

DANGER IN DESIGNATING THE ENTIRE RECORD ON APPEAL…court warns bar that the designation of the entire record may be grounds for dismissal of appeal

Wednesday, October 17th, 2012

This is an old case, but we think it should be reviewed by anyone filing an appeal. (Appeal Brief’s which)… designate only “the entire trial court record” shall be held improper and will be grounds for dismissal

See: Seale v. Riley, 602 S.W.2d 441 (Ky. App., 1980)

The clerk’s original record is always included in the record on appeal; the transcript of evidence or proceeding stenographically reported and depositions are included only when specifically designated. Note in Rule 75.01 the difference in electronic and hand transcribed records.
The current version of CR 75.01, following the title amendment effective July 1, 1979, is set out as follows:
Unless an agreed statement of the case is certified as provided in Rule 75.15, within 10 days after filing the notice of appeal the appellant shall serve upon the appellee and file with the trial court a designation of such portions of the evidence or proceedings stenographically reported as he wishes to be included in the record on appeal, unless the appellee has already served and filed a designation. Within 10 days after the service and filing of such designation, any other party to the appeal may serve and file a designation of additional portions of the evidence or proceedings stenographically reported as he wishes to be included. If the appellee files the original designation, the parties shall proceed under Rule 75.02 as if the appellee were the appellant. (Emphasis added.)
The purpose of this rule is to require the appellant in each case to define those portions of the stenographically recorded proceedings in the circuit court which the appellant wishes to add to the clerk’s original record in support of his position on his appeal. CR 75.07(1) and (2).
Under the current appellate rules, the record on appeal is made up of the entire original record maintained by the clerk of the trial court in his office, CR 75.07(1), and the transcript of evidence and proceedings stenographically reported as designated or stipulated by the parties, CR 75.07(2), with certain types of supporting documentary evidence, CR 75.07(3). The clerk’s original record is always included in the record on appeal; the transcript of evidence or proceeding stenographically reported and depositions are included only when specifically designated.
The designation which the appellant is required to file by CR 75.01 is intended to define those parts of the transcript which the appellant wishes included in the record on appeal under CR 75.07(2).
This appellant’s designation of “the entire trial court record” does not assist in that definition. We are aware that such a designation will cause many circuit court clerk’s to include the transcript, and this may have given some members of the bar the mistaken impression that a designation of “the entire trial court record” was acceptable. But the concept is foreign to Rule CR 75 which concerns the record on appeal and is comprehensible only in reference to practices arising under the pre-1976 appellate rules.
Therefore, we hold that a designation of the entire trial court record is not adequate under the current CR 75.01.
It is undisputed that the transcript of the proceedings in the trial court is necessary for a resolution of the issues presented by this appeal, and the lack of an adequate designation would normally require the dismissal of this appeal. Johnson v. Maloney’s of Olive Hill, supra.
However, in reaching our decision on this motion, the Court has examined a large number of appellate records and determined that the practice of designating the entire trial court record is widespread. Dismissal of all appeals currently pending before this Court in which an inadequate designation was filed would work a severe hardship on the bar and would be fundamentally unfair to the litigants.
Therefore, we will not dismiss pending appeals in which the entire trial court record has been designated if that is the only ground advanced to support dismissal.
However, any designation of evidence or proceedings stenographically reported filed in accordance with CR 75.01 after August 1, 1980, which designates only “the entire trial court record” shall be held improper and will be grounds for dismissal of the appeal as if no designation had been filed.
Attorneys are hereby placed on notice that the designation filed pursuant to CR 75.01 should state with particularity those portions of the evidence or proceedings stenographically reported as the party wishes to be included in the record on appeal. A blanket designation of “the entire trial court record” is not acceptable.
For the reasons stated above, the motions to dismiss this appeal are hereby DENIED.

Also see:
Mifflin v. Mifflin, 170 S.W.3d 387 (KY, 2005)
August 25, 2005
CR 75.01 requires an appellant to designate any untranscribed material that the appellant wishes to be included in the record on appeal. One purpose of CR 75.01 is to eliminate unnecessary portions of the record on appeal. See Burberry v. Bridges, 427 S.W.2d 583 (Ky.1968)

Eric Deters Law Firm Seeks Partners

Wednesday, October 17th, 2012

Oct. 17, 2012

Eric Deters is in need of more law partners. Email him at if you have any interest. This is a fantastic partnership arrangement where you would pay no costs or overhead and share fees on cases Eric provides you.

From rent, malpractice insurance, experts and more, all paid by the firm.

You must join the firm as a partner. The arrangement amounts to a generous nearly even split with Eric.

If you are an experienced lawyer who just needs the cases, this is perfect for you. The volume of business coming in is expected to grow and despite having eighteen lawyers, the firm needs more.

You won’t find a better atmosphere to practice law from the staff, the facility and the spirit. In addition, if you already have existing cases or a book of business, you can keep it as your own.

Eric needs help on his cases.

Supreme Court Sets Aside ruling of Judicial Conduct Commission (then named Removal and “Retirement Commission.) – Definition of Clearly Erroneous

Wednesday, October 17th, 2012

Hinton v. Judicial Retirement and Removal Com’n, 854 S.W.2d 756 (Ky., 1993)

Lawyer Anderson made a formal complaint before the Judicial Retirement and Removal Commission on April 25, 1991. After a preliminary investigation, the Commission charged Judge Hinton with violating SCR 4.020(1)(b)(i), SCR 4.020(1)(b)(v) and SCR 4.300, Canons 1, 2 A and 3 A(2, 3 & 4) of the Code of Judicial Conduct. After considering the evidence, the Commission dismissed charges relating to alleged violations of Canons 1, 2, 3 A(2) and 3 A(4). The Commission unanimously found that Judge Hinton manifested a predetermination to ignore Anderson’s legal representation of the witnesses and that he summarily jailed Anderson who was only trying to represent his clients and make a record. The Commission concluded that the only violation was the summary jailing of Anderson for contempt and that the judge was required to be patient, dignified and courteous in his treatment of lawyers. The Commission states in its brief that no violation would have been found under the circumstances if it were not for the summary jailing of Anderson.
The standard of review on appeals from the Judicial Retirement and Removal Commission is that the Supreme Court must accept the findings and conclusions of the commission unless they are clearly erroneous; that is to say, unreasonable. Wilson v. Judicial Retirement and Removal Commission, Ky., 673 S.W.2d 426 (1984); SCR 4.290.
The record does not support a finding by the Commission that Judge Hinton acted in an undignified, discourteous or impatient manner toward Anderson in such a degree as to require public censure. The findings and conclusions of the Commission were clearly erroneous.

LEIBSON, Justice, dissenting.
Respectfully, I dissent.

In 1975, the Judicial Retirement and Removal Commission was constitutionally created as part of the new Judicial Article as part of meaningful court reform. Kentucky Constitution Sec. 121. The Commission was empowered to hear complaints against judges, find the facts, and decide appropriate discipline. Its fact-finding and decision-making is final subject to judicial review by the Supreme Court for reversible error using the same standard for review that applies to review of the final decision of a trial court: “on appeal this court must accept the findings and conclusions of the commission unless they are clearly erroneous.” Wilson v. Judicial Retirement & Removal Comm’n, Ky., 673 S.W.2d 426, 427-28 (1984).

While the concept of what is “clearly erroneous” is necessarily incapable of mathematical precision, it is properly articulated in Bertelsman & Philipps, Kentucky Practice, 4th ed., Rule 52.01, p. 231, as follows:
Page 760
“[T]he Kentucky test is that a finding is ‘clearly erroneous’ only if there is no substantial evidence in the record to support it, or, the scope of review of the appellate court is the same as if it were reviewing the factual findings of a properly instructed jury.”

In this case the Commission has concluded unanimously that Judge Hinton “violated Canon 3 A(3) of the Code of Judicial Conduct,” which provides in pertinent part:
“A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity….”

There is ample evidence as stated in the “Findings of Fact, Conclusions of Law and Final Order” of the Commission to justify both the Commission’s conclusions and its final order adjudicating “Judge Hinton be PUBLICLY CENSURED.”

This is not a lawyer’s disciplinary proceeding wherein the responsibility for decision-making rests with this Court and the function of the Bar Association is as this Court’s agent to gather evidence and make a recommendation. We have neither the right nor the power to reverse the Commission simply because a majority of this Court does not consider Judge Hinton’s conduct merits public censure. When we do so, we have preempted the Commission’s authority, we have frustrated the intent of the new Judicial Article, and we will undermine public confidence in the judiciary by rendering the Commission a toothless tiger.
The record of what transpired in Judge Hinton’s court is more than ample to support the Commission’s findings and its decision


Wednesday, October 17th, 2012

Pottinger v. Botts, 348 S.W.3d 599 (Ky., 2011)
In these combined cases, we are asked to determine if the absolute privilege afforded statements made in the course of a judicial proceeding applies to statements contained in an attorney disciplinary complaint.
GMAC Mortgage Corporation (hereinafter “GMAC”), through its attorney, Morgan & Pottinger, Attorneys, P.S.C. (hereinafter “Morgan & Pottinger”), filed a disciplinary complaint against Appellee, Noel Mark Botts (hereinafter “Botts”).
Subsequently, Botts filed suit against GMAC and Morgan & Pottinger in the Mercer Circuit Court, requesting relief from the pecuniary and professional harm he has allegedly suffered as a result of the disciplinary complaint. He alleged wrongful use of civil proceedings, defamation and slander, abuse of process, fraud, and outrageous conduct. Appellants filed numerous motions to dismiss based on claims of immunity, all of which were denied.
Because it is determinative of the matter, we first address Appellants’ claims that they are entitled to absolute immunity from liability based on the judicial statements privilege. “The prevailing rule and the one recognized in this jurisdiction is that statements in pleadings filed in judicial proceedings are absolutely privileged when material, pertinent, and relevant to the subject under inquiry, though it is claimed that they are false and alleged with malice.” Schmitt v. Mann, 291 Ky. 80, 163 S.W.2d 281, 283 (1942). See also Smith v. Hodges, 199 S.W.3d 185, 189 (Ky.App.2005) (“The absolute immunity afforded to defamatory statements made in the course of a judicial proceeding has a long history in this Commonwealth….”); Morgan v. Booth, 76 Ky. 480 (1877).
[348 S.W.3d 602]
A communication must fulfill two requirements in order to fall within the ambit of the judicial statements privilege. First, the communication must have been made “preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of a judicial proceeding.” General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1127 (6th Cir.1990) (citing Restatement (Second) of Torts § 587 (1977)). Second, the communication must be material, pertinent, and relevant to the judicial proceeding. Smith, 199 S.W.3d at 193 (citing Lisanby v. Illinois Cent. R. Co., 209 Ky. 325, 272 S.W. 753, 754 (1925)).
Attorney discipline proceedings which commence with the filing of a bar complaint, as occurred in this case, are judicial proceedings. This Court is granted original jurisdiction in the discipline of attorneys and regulation of the profession. Ky. Const. § 116. The KBA has been vested with the authority of this Court to administer that responsibility. SCR 3.025. See also KBA v. Shewmaker, 842 S.W.2d 520, 521 (Ky.1992).
“Judicial proceedings include all proceedings in which an officer or tribunal exercises judicial functions.” Restatement (Second) of Torts § 587 (1977). The disciplinary process has been likened to a criminal trial. KBA v. Harris, 269 S.W.3d 414, 417–18 (Ky.2008). The Office of Bar Counsel is empowered to assess complaints, investigate and prosecute disciplinary cases, and impose alternative discipline when appropriate. SCR 3.160(3)(A). The Inquiry Commission has authority to subpoena witnesses and take testimony. SCR 3.180(3). The Trial Commissioner enters findings of fact and conclusions of law. SCR 3.360(1). Clearly, the KBA exercises a judicial function in the handling of disciplinary matters and, therefore, disciplinary hearings are judicial proceedings. See 77 A.L.R.2d 493 (collecting authorities). See also Baggott v. Hughes, 34 Ohio Misc. 63, 72, 296 N.E.2d 696, 701 (1973) (“Investigations and proceedings on complaints as to an attorney’s professional conduct is a judicial function in Ohio.”). Accord McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512 (1933); Ashton–Blair v. Merrill, 187 Ariz. 315, 928 P.2d 1244 (Ariz.Ct.App.1996); Doe v. Rosenberry, 255 F.2d 118 (2nd Cir.1958).
Thus, any statement made preliminary to, in the institution of, or during the course of an attorney disciplinary proceeding will be privileged so long as it is material, pertinent, and relevant to such proceeding. This would include statements contained in the ethics complaint. The complaint triggers the investigative and disciplinary functions of the KBA and, therefore, is always material, pertinent, and relevant to attorney discipline proceedings. See Katz v. Rosen, 48 Cal.App.3d 1032, 1036, 121 Cal.Rptr. 853 (Cal.Ct.App.1975) (“Informal complaints received by a bar association which is empowered by law to initiate disciplinary procedures are as privileged as statements made during the course of formal disciplinary proceedings.”).
Contrary to the trial court’s determination, this conclusion is not swayed by the fact that the charges against Botts were ultimately dismissed. See Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23 (1992) (doctrine of absolute immunity barred attorney’s suit against former client’s spouse who filed grievance against attorney that was later dismissed). Little explanation is needed to emphasize that a lack of evidentiary support is not the equivalent of a finding of falsehood. Regardless, even if patently false or entered with malice, Kentucky’s judicial statements privilege is absolute and would still apply. Accord Sinnett v. Albert, 188 Neb. 176, 195 N.W.2d 506 (1972) (judicial statements privilege protects contents of attorney ethics complaint
[348 S.W.3d 603]
so as to bar subsequent suit against complainant for libel); Kerpelman v. Bricker, 23 Md.App. 628, 329 A.2d 423 (Md.Ct.Spec.App.1974) (absolute privilege pursuant to judicial statements doctrine attaches to statements contained in attorney disciplinary complaint).
A larger question is posed, however, because Botts’ complaint also alleges wrongful use of civil proceedings, abuse of process, fraud, and outrageous conduct. Stated otherwise, his claims are based not only on Appellants’ statements contained in the KBA complaint, but also on the act of filing the complaint. Whether the judicial statements privilege encompasses the act of filing the complaint is also a matter of first impression in Kentucky.
It seems that, until roughly the mid-twentieth century, courts assumed the right of an attorney to sue for malicious prosecution or other similar tort actions based on the filing of a disciplinary complaint. See generally 52 A.L.R.2d 1217 (2011). Indeed, a very early Kentucky case seems to acknowledge the right of an attorney to pursue a malicious prosecution action against the attorney who instigated disbarment proceedings against him. See Lancaster v. McKay, 103 Ky. 616, 45 S.W. 887 (1898) (in action predating the Rules of Professional Conduct and the establishment of the Bar Association as having jurisdiction over disciplinary proceedings, judgment ultimately reversed for insufficiency of proof that disbarment suit lacked probable cause). However, in the latter part of the twentieth century, a growing trend emerged to bar any type of civil action predicated upon the filing of an attorney discipline or ethics complaint.
At least twenty-eight states have evinced a policy decision to bar such civil suits through enactment of a court rule or statute.2 These provisions, whether granting absolute or qualified immunity to communications made to the disciplinary authority, also prohibit any type of lawsuit based on the privileged communication or complaint. Tennessee Supreme Court Rule 9, § 27 is representative of this type of court rule: “Communications to the board, district committee members or Disciplinary Counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witnesses.” (Emphasis added.) Each of these rules uses similarly expansive language barring any “lawsuit,” “civil suit,” or “civil liability” without restricting the prohibition to suits for defamation, libel or slander. Cf. WV R Lwyr Disc Rule 2.5 (West Virginia designates that all information provided to the disciplinary authority “shall be privileged in any action for defamation.”). Though few cases exist interpreting the typically broad language of these rules, at least four courts have specifically concluded that the privilege would bar even claims relating to the act of filing the complaint, such as malicious prosecution or abuse of process. See
[348 S.W.3d 604]
Wallace v. Jarvis, 119 N.C.App. 582, 459 S.E.2d 44 (1995); Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23 (1992) (interpreting rule which affords judicial immunity to participants in the attorney discipline process); In re Smith, 98,9 P.2d 165 (Colo.1999) (interpreting former rule); Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai‘i 92, 176 P.3d 91 (2008). But see Goldstein v. Serio, 496 So.2d 412 (La.Ct.App.1986) (holding that rule affording privilege to contents of bar complaint does not extend to the act of filing the complaint).
While the majority of states protect complainants through enactment of a statute or rule, some have achieved the same result through application of the judicial statements privilege and, thus, are more persuasive in consideration of the present matter. In Stone v. Rosen, Florida recognized that an absolute privilege protects statements made to the Bar Association in a complaint which operates to prohibit the attorney’s claim of malicious prosecution against the complainant. 348 So.2d 387 (Fla.Dist.Ct.App.1977). The holding in Stone was later reaffirmed by the Florida Supreme Court, notwithstanding subsequent passage of procedural rules which removed confidentiality of the grievance process. Tobkin v. Jarboe, 710 So.2d 975 (Fla.1998). The Court of Appeals of Arizona reached a similar result in Drummond v. Stahl, wherein the plaintiff-attorney filed suit against opposing counsel alleging tortious interference with a contractual relationship through the filing of a bar complaint. 127 Ariz. 122, 618 P.2d 616 (Ariz.Ct.App.1980). The court determined that the judicial statements privilege affords complainants an absolute privilege for statements made in attorney discipline proceedings, and that the privilege operated to bar the plaintiffs claim of tortious interference. Id. at 619–20. See also Ashton–Blair, 928 P.2d at 1246–47 (applying absolute privilege under judicial statements doctrine to bar attorney’s claim for defamation against complainant).
Though there is some authority to the contrary, see, e.g., Goldstein, 496 So.2d 412, we conclude that the judicial statements privilege encompasses the act of filing the complaint, in addition to the statements contained therein. Sound public policy compels this conclusion. “The doctrine of privileged communications rests upon public policy ‘which looks to the free and unfettered administration of justice, though, as an incidental result, it may, in some instances, afford an immunity to the evil-disposed and malignant slanderer.’ ” Schmitt, 163 S.W.2d at 284 (quoting Bartlett v. Christhilf, 69 Md. 219, 14 A. 518, 520 (1888)).
This rationale applies no less to attorney discipline proceedings. In order to maintain a self-regulating profession, the investigation of unethical conduct must be vigorous and complainants must be free from threat of any civil liability.
Any lesser grant of immunity would have a chilling effect on the reporting of attorney misconduct. See Jarvis, 830 P.2d 23 at 26 (internal quotations omitted) ( [“A]pprehension of personal liability for presenting a question of professional responsibility to the disciplinary administrator might tend to subvert the system established for ensuring that persons holding licenses to practice law are fit to be entrusted with professional and judicial matters.”).
The purpose of this policy would be eviscerated if the protection extends only to the statements contained in the complaint itself, but not to the act of filing the grievance. While Justice Noble is correct in her dissent that sometimes the attorney and the complainant may be equally sophisticated and on “equal-footing,” this is often not the case. When the complainant is not an attorney, there is an inequitable balance of power which creates a very real opportunity for attorney intimidation. Attorneys
[348 S.W.3d 605]
can threaten and pursue retaliatory litigation at very little expense and through their own means. “Conversely, the cost of litigation coupled with the risk of liability in defending against such an action could be enough to discourage an individual from bringing a meritorious complaint.” Tobkin, 710 So.2d at 977. Laypersons, in deciding whether to file a bar complaint, cannot be expected to understand the subtle legal difference between an allegation of defamation versus a claim of abuse of process. And it is insufficient that an “honest” complainant would eventually be exonerated of any abuse of process claim. It is the threat and potential for retaliatory litigation—of any kind—that serves as a disincentive to filing a bar complaint.
We must encourage persons with complaints against attorneys to submit such information to the KBA for proper investigation and examination. This includes persons who might lack knowledge of the law and, therefore, have some doubt as to the propriety of the attorney’s conduct or the validity of the complaint. “If ethics investigations are to be conducted effectively, it is imperative that complainants be free from the threat of themselves being sued.” Farber v. Dale, 182 W.Va. 784, 392 S.E.2d 224, 227 (1990). This includes the act of filing the bar complaint itself. The threat of any retaliatory suit—whether it is for defamation, slander, or abuse of process—would have a chilling effect on the filing of bar complaints.
We do not believe our holding today unduly burdens attorneys or otherwise abrogates a right. Rather, certain causes of action do not exist in privileged situations. Here, “one who elects to enjoy the status and benefits as a member of the legal profession must give up certain rights or causes of action….” Stone, 348 So.2d at 389.
If a bar complaint is determined to be based on probable cause and results in disciplinary action, then clearly the attorney has no cause of action against the complaining party. If the complaint is deemed lacking in probable cause, or even entirely without merit, any harm to the attorney is minimal and would amount to little more than mere inconvenience.
In Kentucky, the bar complaint, the investigation by the Inquiry Commission, and the disciplinary proceedings are entirely confidential. SCR 3.150(1). In fact, there is no publication whatsoever unless, and until, a public reprimand or other public discipline is imposed. Id. As such, the potential harm suffered by an attorney at the hands of the malicious complainant—if indeed the complaint lacks merit—

Opinion of the Court by Justice CUNNINGHAM.
MINTON, C.J.; ABRAMSON and VENTERS, JJ., concur. NOBLE, J., dissents by separate opinion. SCOTT, J., also dissents by separate opinion in which SCHRODER, J., joins.NOBLE, J., dissenting:
Dissent by Justice Noble:
The majority errs primarily in extending the judicial statements privilege so that it bars even actions related to the filing of a complaint or initiation of suit or prosecution.
I must agree with Justice Scott, who notes that at least some of Appellee’s claims—specifically his claim for wrongful use of civil proceedings and outrageous conduct—are not based on the “judicial statements” in this case. Instead, they stem directly from the act of wrongfully filing the bar complaint, regardless of the complaint’s content. Assuming the Appellee’s claims are true, which we must at this point, the filing of the bar complaint resulted in Appellee’s being temporarily suspended from the practice of law, which substantially affected his income and led to other civil claims being brought against him, and in his having to pay to defend himself at the disciplinary proceedings—all of which the majority dismisses as “minimal and … little more than mere inconvenience.” So, if the judicial statements privilege only extends to those claims based on the content of the judicial statements, e.g., a defamation claim for statements in the bar complaint, at least some of Appellee’s other claims must survive.
The judicial statements privilege can apply only when the claim stems from the statements made in the judicial proceeding, not from the act of wrongfully bringing the action without probable cause. See Smith v. Hodges, 199 S.W.3d 185, 192 (Ky.App.2005) (reviewing cases applying privilege to malicious prosecution claims and noting they are “based upon grand jury testimony”). In deciding if the privilege applies, the focus must be on the allegedly tortious act—either a false statement or the wrongful institution of an action. If the tort claim, whether for defamation, perjury, or even malicious prosecution, is based on a false statement, the privilege can bar it. But if the tort claim is based on the institution of the action, the privilege has no applicability whatsoever. To hold otherwise would subsume entirely the torts of malicious prosecution and wrongful institution of civil proceedings in the privilege, even outside the context of bar complaints. The majority’s reading of the privilege would effectively destroy the torts of malicious prosecution and outrage in other contexts.3
Second, while this Court is charged with governing the practice of law, an attorney who is exercising his or her right to access to the courts is not engaging in the practice of law. If filing a personal law suit is the practice of law, then the courts will be overwhelmed with illegal practice claims, as that is essentially what every unlicensed plaintiff would be doing. While this analogy may sound absurd, it illustrates that the Court’s only constitutional authority here is to govern the actual practice of law. Unless exercising one’s right to access to the courts is somehow unethical so as to impact an attorney’s actual practice of law, this Court has zero authority to tell an attorney or any other citizen that he or she cannot file a lawsuit absent overwhelming public interest to the contrary.
Third, creating and applying this privilege only to attorneys simply is not justified by any substantial evidence, though the privilege certainly impacts an attorney’s substantial rights. There is only supposition that allowing an attorney to bring a wrongful institution of civil proceedings or outrageous conduct action would result in legitimate claims not being made. No studies have been presented, not even rudimentary surveys. Applying a privilege to these causes of action requires acting on a possibility of chilling but results in a certainty of deprivation of rights.
Additionally, this concern over a possible chilling effect presumes that all such clients are the so-called “little guy,” who is unsophisticated, perhaps uneducated, and therefore stands powerless next to the attorney, who is learned in the law and an officer of the courts. But, as amply illustrated by this case, clients are frequently at least on an equal footing with their counsel, if not in a superior position, having the resources of large multinational corporations. Allowing such a client an absolute privilege to file a bar complaint
[348 S.W.3d 611]
would invite abusive practices by which the client seeks to bend the attorney to its will and force him to take (or not to take) a course of action that he or she deems prudent.
Moreover, this Court cannot take the position of splitting hairs, so as to allow the privilege for the “little guy” but not for the powerful or sophisticated client. Interestingly, there is little or no likelihood that an attorney will even bring a malicious prosecution claim against the sort of client who the privilege is intended to protect. Such a suit would rarely be worthwhile.
Consequently, I dissent from the majority opinion and would instead allow Appellee’s claims not covered by the judicial statements privilege, as described above, to proceed.
SCOTT, J., dissenting:
I am compelled to dissent from the majority’s conclusion that bar complainants enjoy absolute—rather than qualified—immunity from civil liability rightfully arising from the filing of an alleged malicious bar complaint. I simply do not believe the majority’s conclusion is supported by the Constitution of this Commonwealth or sound precedent of this Court.
Bar complaints have the potential to devastate an attorney’s reputation—the lifeblood of any lawyer’s practice. In fact, one’s reputation, be it that of a lawyer or not, is so precious in this Commonwealth that the term is enshrined in Section Fourteen of the Kentucky Constitution, a provision that commands:
All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
SCHRODER, J., joins.

Presumably Felonious Lawyer Makes Terrible Statistical Argument

Sunday, October 14th, 2012

Quote from Blog
The State of Florida offered this argument in a brief filed last week:
Given the small percentage of the population [about 5%] that is licensed to carry a concealed firearm, the overwhelming majority of firearms, or 95%, are not licensed to be concealed. Thus, an officer’s suspicion that a [concealed] firearm is not licensed would be reasonable because, in any given case, there would be, statistically speaking, a 95% likelihood of illegality.
Pretty sure whoever wrote that did not think it through, because as shown below it would mean that he or she is probably a felon.
The case involved a motion to suppress evidence that the defendant had been carrying a gun (that evidence: the gun) on the grounds that the arresting officer didn’t have reasonable suspicion to justify aTerry stop. The officer testified that he “observed a solid object inside of [the suspect's] pocket” as he was driving by, which suggests some pretty remarkable powers of observation but I suppose is not impossible. As he got closer, he said, he was able to see the handle of a gun sticking out, and for that reason and because this occurred in a “known narcotics location,” he stopped to investigate. It was indeed a gun, and the defendant was arrested when he could not produce a concealed-weapons permit. (It is apparently illegal in Florida to carry a gun openly, but legal to carry it secretly if you have a permit.)
The defendant argued that the officer’s suspicion could not have been reasonable because it’s legal to carry a concealed weapon if you have a permit, and so just spotting a (poorly) concealed weapon can’t be enough to justify a stop. That is, the officer might have reasonably suspected the defendant had a gun but had no particular reason to suspect he was doing anything illegal by carrying it.
Florida courts are split on this question, but those that hold such a search doesn’t violate the Fourth Amendment have reasoned that, under state law, having a permit is an affirmative defense. In other words, all the state has to show is that you had a concealed weapon; it’s your burden to come forward with a permit. Because the lack of a permit isn’t an element of the crime, it’s irrelevant to whether the stop was constitutional. It’s not too surprising to me that at least one court has held the opposite, because this interpretation arguably permits a Terry stop with no evidence whatsoever that a crime is being committed. But that point is at least arguable.
What is not arguable, though, is the state’s backup argument, namely the statistical horribility quoted above.
As Eugene Volokh pointed out, applying the same reasoning, we could reasonably suspect that whoever wrote that brief isn’t authorized to practice law. Given the small percentage of the population (less than one percent) that is licensed to practice law, it follows that the overwhelming number of briefs filed are (in the author’s words) “not licensed to be filed”; thus, a suspicion that the author of the brief is not licensed would be reasonable because in any given case, there would be, statistically speaking, a greater than 99% likelihood of illegality.
I’d add that this would be very unfortunate for the author, because in Florida the unauthorized practice of law is a third-degree felony. So if the author’s argument were valid, it’d be reasonable to detain him or her at least briefly based on this suspicion of criminal activity and do a little searching.
Who knows what else we might find?
October 10, 2012 in Brilliant Arguments, Constitutional Law, Law Enforcement | Permalink