Archive for December, 2014

Attorneys who are candidates for public are forbidden by Supreme Court Rules to release names of current or former clients to the media.

Monday, December 8th, 2014

SCR 3.130(1.6) Confidentiality of information

Supreme Court Commentary



(1) This Rule governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer’s representation of the client. See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and 1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the disadvantage of clients and former clients.

(2) A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. See Rule 1.0(e) for the definition of informed consent. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.

(3) The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

(4) Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved.

Authorized Disclosure

(5) Except to the extent that the client’s instructions or special circumstances limit that authority, a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation. In some situations, for example, a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or, to make a disclosure that facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in the course of the firm’s practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.

Disclosure Adverse to Client

(6) Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1), recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.

(7) A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b) (4) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct. SCR 3.530, Advisory opinion – informal and formal, authorizes a lawyer to request an advisory opinion from the requester’s Supreme Court District Committee member regarding ethics and unauthorized practice of law questions. The question may be submitted in writing or by telephone using the KBA Ethics Hotline. Communications between the requester and any District Committee member or Ethics Committee member are granted confidentiality by SCR 3.530 and are permitted disclosure by paragraph (b)(4).

(8) Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. Lawyers may also report incidents of potential malpractice that have not ripened into a client claim to a lawyer’s liability insurer for legal advice and to comply with policy reporting requirements provided the report is made on a confidential basis and protected by the attorney-client privilege. The right to defend also applies, of course, where a proceeding has been commenced.

(9) A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services rendered in an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

(10) Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to comply with the law.

(11) A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order.

(12) Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

(13) Paragraph (b) permits but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).

Acting Competently to Preserve Confidentiality

(14) A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.

(15) When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule.

Former Client

(16) The duty of confidentiality continues after the client-lawyer relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such information to the disadvantage of the former client.



Supreme Court of Kentucky to hear arguments Dec. 10-11 in Frankfort

Monday, December 8th, 2014


Press Release Date: Friday, December 05, 2014
Contact Information: Susan Stokley Clary
Supreme Court Clerk

The Supreme Court of Kentucky will hear oral arguments in cases that originated in Franklin, Jefferson, Lawrence, Oldham and Pendleton counties when it convenes Dec. 10-11 in Frankfort. Proceedings are open to the public and will take place in the Supreme Court Courtroom on the second floor of the state Capitol at 700 Capitol Ave. in Frankfort.

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

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

View Case Briefs at

WEDNESDAY, DEC. 10, 2014


Summary: “Criminal Law. KRS 514.040. Theft By Deception. Adoption. Birth Mother Living Expenses. Issues include whether the trial court correctly refused to dismiss theft by deception charges against birth parents who solicited and accepted living expenses from prospective adoptive parents without disclosing that they had already accepted living expenses from an adoption agency representing other prospective adoptive parents.”

Discretionary Review granted 04-9-2014
Lawrence Circuit Court, Judge John David Preston

Attorneys for Appellant: William Bryan Jones and Perry Thomas Ryan
Attorneys for Appellees: Roy Alyette Durham, II and Karen Shuff Maurer


2013-SC-000824-DG (Cross Motion)

Summary: “Criminal Law. Jury Use of Evidence. Issues include the propriety of a jury’s use of the prosecutor’s laptop to replay audiotape of a drug transaction admitted into evidence as an exhibit.”

Discretionary Review granted 12-11-13 and 3-12-14 (Cross)
Pendleton Circuit Court, Judge Jay Delaney

Attorney for Appellant/Cross-Appellee: Gregory C. Fuchs
Attorney for Appellee/Cross-Appellant: Brandon Neil Jewell


Summary: “Criminal Law. Postincarceration Supervision. Issues include whether a defendant who made a plea bargain with the Commonwealth’s Attorney to not revoke his postincarceration supervision is entitled to the benefit of that bargain even though KRS 532.043(5) gives full authority to the Parole Board to make that determination.”

Discretionary Review granted 12/11/2013
Oldham Circuit Court, Judge Karen A. Conrad

Attorney for Appellant: Aaron Reed Baker
Attorney for Appellee: John C. Cummings

THURSDAY, DEC. 11, 2014


Summary: “Trespass. Damages. Issues include the proper measure of damages for removal of underground limestone absent reduction in the fair market value of the real estate.”

Discretionary Review granted 06-11-2014
Franklin Circuit Court, Judge Thomas D. Wingate

Attorneys for Appellant: Robert W. Kellerman and Sarah Jackson Bishop
Attorney for Appellees: J. Robert Lyons, Jr.


Summary: “Writ of Prohibition. KRS 186.574(6), Drive Safe Louisville (DSL). KRS 24.175(3), Imposition of court costs. RCr 8.04.”

Transfer Granted 04-17-2014
Jefferson Circuit Court, Judge Judith E. McDonald-Burkman

Attorneys for Appellant: Virginia Hamilton Snell, Deborah H. Patterson, and Sara Christine Veeneman
Attorneys for Appellees: Michael J. O’Connell, David A Sexton, and James Bruce Miller


Summary: “Criminal Law. KRS 508.140. Stalking. RCr 10.04. Post-Verdict Juror Statements. Issues include: (1) whether the elements of the stalking statute are met where the victim does not fear for her own safety, but does fear for the safety of others; (2) whether jurors’ post-verdict comments suggesting that they may have misinterpreted the instructions are admissible to impeach the verdict.”

Discretionary Review granted 2-12-14
Jefferson Circuit Court, Judge Mary M. Shaw

Attorneys for Appellant: Daniel T. Goyette and Bruce P. Hackett
Attorney for Appellee: William Robert Long, Jr.

Court Blocks Florida Governor’s Bid To Drug Test Welfare Applicants

Monday, December 8th, 2014


Posted by  at 10:42 PM on December 6, 2014Ending Marijuana Prohibition




By Phillip Smith

Florida Governor Rick Scott’s (R) drug testing crusade hit yet another roadblock Wednesday as a federal appeals court upheld a lower court’s ruling that his plan to make welfare applicants submit to mandatory, suspicionless drug tests was unconstitutional.

As other Republican governors — most notably Scott Walker in Wisconsin and Paul LePage in Maine — did in this year’s election campaign, Rick Scott made drug testing a key campaign promise in his 2010 election campaign. The following year, the Republican-dominated state legislature acceded to Scott’s request and passed a welfare drug testing law.

Welfare applicants weren’t the only target of Scott’s drug testing push. He also sought to impose random, suspicionless drug testing on state employees through an executive order. But that was struck down by the federal courts as violating the Fourth Amendment’s proscription against unreasonable searches and seizures. The US Supreme Court denied his appeal of that ruling in August.

And now, the second prong of Scott’s drug testing thrust has been struck down. The decision came in Lebron v. Florida Department of Children and Families, in which Navy veteran, college student, and single father Luis Lebron filed for food stamp assistance, but was denied after he refused to undergo a drug test. Supported by the ACLU of Florida and the Florida Justice Institute, Lebron sued to have the law overturned.

Citing a lengthy history of federal court precedents, Lebron’s legal team argued that like the random, suspicionless drug testing of state workers, the mandatory, suspicionless drug testing of welfare applicants violated the Constitution’s protections against unreasonable searches and seizures. US District Court Judge Mary Scriven agreed, ruling in 2011 that the policy was unconstitutional.

The never-say-die Scott appealed that decision. The 11th Circuit Court of Appeals in Atlanta held a hearing on the case on November 20. It then took less than two weeks to reach its decision.

The bipartisan panel of federal judges ruled unanimously that the state of Florida had failed to provide any evidence that there was a strong government need to strip welfare applicants of constitutional protections.

“We have no reason to think impoverished individuals are necessarily and inherently prone to drug use, or, for that matter, are more prone to drug use than the general population,” Judge Stanley Marcus wrote for the court. “The State has presented no evidence demonstrating that drug testing saves a significant portion of TANF funds that could otherwise be spent on drugs,” he added, pointing to a 2000 state study that found welfare applicants were less likely to use drugs than the general population and noting that in the three months the drug testing program was in effect, only 2.76% of applicants tested positive.

“In the final analysis, the warrantless, suspicionless urinalysis drug testing of every Florida TANF applicant as a mandatory requirement for receiving Temporary Cash Assistance offends the Fourth Amendment. On this record, the State has not demonstrated a substantial special need to carry out the suspicionless search — we see no concrete danger, only generalized public interests,” Marcus wrote.

Marcus also noted that “citizens do not abandon all hope of privacy by applying for government assistance” and that “by virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy.” Having to urinate in a cup in front of another person “intrudes upon expectations of privacy that society has long recognized as reasonable,” he added.

Nor were the judges buying the state’s argument that welfare applicants effectively waived their constitutional rights by consenting to drug tests as a condition of receiving benefits or that the state had a “special need” to protect the children of drug-using welfare applicants.

“[T]he State cannot use consent of the kind exacted here — where it is made a condition of receiving government benefits — to wholly replace the special needs balancing analysis,” the court held. “We respect the State’s overarching and laudable desire to promote work, protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must — and we do — hold that [the welfare drug testing law] crosses the constitutional line.”

While, given a solid line of federal court setbacks for the law, the 11th Circuit’s decision was not exactly a surprise, advocates pronounced themselves well-pleased.

“The 11th Circuit has affirmed that the 4th Amendment applies to everyone, even those applying for government assistance, said Florida Justice Institute executive director Randall Berg. “The same rationale for requiring suspicionless drug tests of TANF recipients could be used to require suspicionless searches for any kind of government benefit, whether it is social security, farm subsidies, or student scholarships. Today, the court has rejected that rationale, drawing a clear line that will keep us from going down that slippery slope.”

“We are very pleased by the Court’s opinion, which once again makes clear that the US Constitution forbids the State of Florida from subjecting ordinary private citizens to invasive and unwarranted searches,” said ACLU of Florida associate legal director Maria Kayanan.

“This is a resounding affirmation of the values that the Fourth Amendment of the U.S. Constitution protects — that none of us can be forced to submit to invasive and humiliating searches at the whim of the government, and that the Constitution protects the poor and the wealthy alike,” she continued. “The Court has once again confirmed what we argued all along: that the state of Florida cannot treat an entire class of people like suspected criminals simply because they’ve asked the State for temporary assistance.”

While the federal courts have been clear that, with limited exceptions, mandatory, suspicionless drug testing violates the Constitution, Republican governors and legislators in other states have responded by passing public benefits drug testing laws that can pass constitutional muster by first establishing some sort of “reasonable suspicion” before requiring drug testing. According to the National Council of State Legislatures, at least 11 states have done so.

The results have not been particularly impressive. In Kansas, only 20 people have been tested in the first four months the law has been in effect; four failed the drug test. Next door in Missouri, the state is spending $336,000 a year on its welfare drug testing. It has tested 655 people; 69 failed the drug test. But 711 others refused to take it. In Utah, a year after it passed a 2012 welfare drug testing law, the state had spent $30,000 to drug test applicants, but only came up with 12 who tested positive. In Tennessee, where a similar law went into effect this year, the state has tested 800 applicants, with only one person testing positive.

But whether public benefits drug testing programs actually either save states money by reducing welfare rolls or help families by encouraging recipients to go straight is probably not as important to politicians as the political calculus behind them. With its coded appeal to racial and class hostilities wrapped in a guise of caring and fiscal responsibility, it’s a red meat issue for the Republican base.

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Other Views: Once upon a time, the Supreme Court upheld civil rights

Monday, December 8th, 2014

Posted: Sunday, December 7, 2014 12:06 am

By Orson Aguilar/TNS Fourm

Fifty years ago, on Dec. 14, 1964, the U.S. Supreme Court unanimously rejected a legal challenge to the Civil Rights Act of 1964, making possible half a century of progress toward fairness and justice.

It’s hard to picture the current justices doing the same.

The case was called Heart of Atlanta Motel v. U.S. A motel owner in Georgia wanted to keep discriminating against black patrons, arguing the Constitution did not allow the federal government to prohibit private discrimination.

Back in 1883, the court had indeed said the federal government had no such authority. And Barry Goldwater, the 1964 Republican presidential nominee, was a strong advocate for the view that the Civil Rights Act was unconstitutional.

Had the motel succeeded, the law would have been toast, and the history of the last 50 years would have been radically different. We might well still have businesses with “Whites Only” signs in parts of the country.

Happily, the Supreme Court unanimously upheld the law, stating unequivocally the federal government does indeed have the power to protect Americans from discrimination.

Would the current high court do the same? Probably not.

Last year, the Supreme Court gutted the other key pillar of civil rights protections, the Voting Rights Act.

“Our country has changed,” wrote Chief Justice John Roberts for the court majority. The law, he said, was “based on 40-year-old facts having no logical relationship to the present day.”

In short, Roberts and colleagues held that because the Voting Rights Act had worked, it was no longer constitutional.

The same argument could easily be made against the Civil Rights Act today.

After all, “Whites Only” signs have disappeared, right? Segregated lunch counters and drinking fountains are historical relics, so why should the feds be able to dictate private behavior based on old facts “having no logical relationship to the present day”? Because discrimination still exists, even if its more overt manifestations have faded. We still live in a country with profound racial inequities, and the notion of a colorblind America is a myth.

The aftermath of the Supreme Court’s ruling to gut the Voting Rights Act provides proof. More than half of the jurisdictions that used to have to get federal approval for changes in voting rules — because they had a history of discriminating against minority voters — rushed to pass new restrictions on voting. Ample evidence shows that these restrictions disproportionately hurt the poor and voters of color.

Fifty years ago, the U.S. Supreme Court was a beacon of hope for those who had the least in this country. Sadly, those days seem to be over.

Orson Aguilar is executive director of The Greenlining Institute. He wrote this for Progressive Media Project, a source of liberal commentary on domestic and international issues; it is affiliated with The Progressive magazine

Colorado DUI case sent to U.S. Supreme Court, focuses on blood tests

Monday, December 8th, 2014

By Jordan Steffan


The Denver Post

POSTED:   12/07/2014 08:29:14 PM MST


When Jack Schaufele cruised into the busy intersection during rush hour and slammed into an oncoming car, his blood-alcohol level was nearly three times the legal limit.

But a jury may never know there was alcohol in his system.

Arapahoe County prosecutors have asked the U.S. Supreme Court to overturn a decision by a state judge and the Colorado Supreme Court, which found that because the officer did not try to obtain a warrant before she ordered a blood draw on Schaufele, the results may not be presented as evidence. Thirteen other states filed a petition asking the U.S. Supreme Court to pick up the case.

If the high court takes up the case, their decision will have national implications. Granting the prosecutors’ request will make it easier for authorities to take blood samples without a judge’s approval in suspected DUI cases. Without a change in the law, blood tests that reveal drivers were above the legal limit — but were taken without a warrant — will continue to be excluded from trials.

“The question is when there are exceptions to search and seizure without a judge looking over the police officer’s shoulder,” said David Beller, president of the Colorado Criminal Defense Bar, who is not connected to the case.

Daubert Decisions Not Just for District Courts Anymore

Saturday, December 6th, 2014

posted on: Friday, December 5, 2014

There is a new gatekeeper in town. Or perhaps 179 of them.

Earlier this month, the U.S. Supreme Court refused to grant certiorari and hear an appeal challenging a federal court’s ruling with regard toDaubert motions, effectively permitting the expansion of the power to decide expert witness admissibility to the Circuit Court.

The effects of this case (or rather, the lack thereof with respect to the U.S. Supreme Court’s involvement) could impact overall litigation strategy when attorneys are engaged in Daubert disputes and increase the overall scrutiny of expert witness qualifications and methodologies.

In the long-lasting asbestos wrongful-death case of Estate of Henry Barabin v. AstenJohnson, Inc., the 9th U.S. Circuit Court of Appeals found that a Washington District Court erred by failing to conduct a properDaubert hearing to determine the admissibility of two of plaintiff’s experts. This decision and rationale have been well documented over the years, including earlier posts in BullsEye:  No Daubert Hearing Equals $10 Million Error in 9th Circuit  and Lack of Daubert Hearing Cancels $9.4 Million Verdict.

The determination that the District Court failed to fulfill its gatekeeper role in permitting or preventing the experts’ testimony at trial was simple enough. A three-judge 9th Circuit panel came to this conclusion in 2012, and then an en banc (or “full court”) 9th Circuit Court made the same decision this January, basically saying that the District Court judge erroneously punted the court’s procedural responsibilities to the jury by not conducting a full Daubert inquiry and by allowing both experts to testify, albeit with restrictions.

The January decision by the en banc Circuit Court also made a significant reversal of itself with regard to its own abilities to make Daubertdecisions. With Judge N. Randy Smith authoring the 27-page decision, the 9th Circuit Court now says that it, too, can examine the credentials of an expert witness to determine his or her admissibility, so long as the District Court’s record is sufficient for the Circuit Court to do so.

“After the dust of Daubert had settled, we held that an erroneous admission of expert testimony, absent a showing the error was harmless, requires a new trial. See Mukhtar, 299 F. 3d at 1066- 67. To the extent Mukhtar requires anything more, it is overruled,” Judge Smith writes.

“[The Defendants/Appellants] contend that a reviewing court should have the authority to make Daubert findings based on the record established by the District Court. We agree and overrule Mukhtar to the extent that it required that Daubert findings always be made by the District Court. See Mukhtar, 299 F.3d at 1066 n.12. If the reviewing court decides the record is sufficient to determine whether expert testimony is relevant and reliable, it may make such findings.”

To support its decision, the Circuit Court cites a U.S. Supreme Court case from 2000 that grants “reviewing courts” the power to direct judgment as a matter of law if the court “determines that evidence (would be inadmissible) at trial and that the remaining, properly admitted evidence is insufficient to constitute a submissible case.” Weisgram v. Marley Co., 528 U.S. 440, 446-47 (2000).

However, this is not synonymous with saying that Circuit Courts can now be Daubert gatekeepers – perhaps guarding “the gate” after the first gate was either unlocked improperly or left open entirely. Furthermore, and completely out of the realm of Weisgram, would also be the case when the gate was unduly locked when it should perhaps been left open.

In the hypothetical case of a District Court judge erring in his or her prohibition of an expert witness from testifying at trial, then it is conceivable that the record could still be sufficient to allow the Circuit Court to declare such expert to have passed the Daubert test and therefore be admissible. In this situation, the case would be sent back down for retrial, one would presume – with the District Court being bound by the 9th Circuit’s so-called Daubert “hearing.”

Until Barabin, the Daubert test, at least as it applies federally, was for the exclusive use of the District Court. Post-Barbin, it became a test and tool for the 9th Circuit Court to use as well. This month, perhaps most importantly, the U.S. Supreme Court has basically consented to such expansion of power by its denial of cert to such appeal.

The 9th Circuit Court is largely considered to be one of the most powerful and most influential courts in America. Its jurisdiction includes California, Oregon, Washington, Idaho, Montana, Arizona, Alaska, and Hawaii. Now, in the federal District Courts of all these states, lawyers and litigants beware – especially plaintiffs, for there is now a second gatekeeper holding a Daubert key to expert admissibility.

Thompson, Esq. is an assistant general counsel and writing professor at Niagara University. He has a degree in journalism from the University of Colorado and a law degree from Brooklyn Law School. Admitted to the New York bar in 2005, he previously worked at a Fifth Avenue law firm where he specialized in in-court litigation. Lured back to the dying newspaper industry in 2007, Thompson worked as legal editor of the historic Brooklyn Daily Eagle, where he remained for nearly five years. In 2012, Thompson returned to his hometown of Buffalo and lives…




Saturday, December 6th, 2014


Dec. 5, 2014

Judge Norbert Nadel admitted he had a “tremendous temptation” not to incarcerate Judge Tracie Hunter after her criminal conviction, but believed he had to because she was an elected official who broke the law — a combination Nadel called “a double whammy.”

“Without the dilemma of the double whammy, (Hunter’s service to her church and community) would absolutely have guaranteed probation,” Nadel said.

Nadel sat through Hunter’s five-week trail — six weeks if you count jury deliberations — and heard evidence that doomed Hunter, a controversial Juvenile Court judge indicted in February for having an improper interest in a public contract for trying to help her Juvenile Court employee brother after he was fired for punching a teen inmate.

“The evidence showed that the criminal conduct of Tracie Hunter has dealt a very serious blow to the public confidence of our judicial system and there’s no question about that,” Nadel said.

Hunter, Nadel said, took an oath as judge to uphold the laws of Ohio. Instead, he said she used her judgeship to commit nepotism, deny public access to the courtroom over which she provided, improper judicial temperament and tardiness in making decisions in her cases that often delayed attempts to have children adopted or placed in long-term foster care.

The sentence of six months in the Hamilton County Justice Center imposed by Nadel could have been much worse. She faced a maximum prison sentence 0of 1 1/2 years but Nadel said he was lenient on her partly because of the “public humiliation” Hunter already has experienced.


In addition, Nadel ordered Hunter to be placed on probation for one year but gave her a Christmas gift by not taking her into custody immediately, allowing her to report Dec. 29 to begin serving her jail term.

“To God be the glory,” Hunter told The Enquirer as she left court. “You have now convicted an innocent person.”

That sentence came after three hours of Hunter bringing 18 witnesses to speak about her character. Each said she was a kind, loving person who, as a pastor, thrived in helping others, especially in their times of trouble.

Those witnesses were talking about Tracie Hunter the pastor. Nadel sentenced Tracie Hunter, the criminal.

“I’m disappointed. I’m not shocked,” Hunter’s attorney, Clyde Bennett II, said of the sentence. “It will not stand.”

Even before Friday’s hearing started, Bennett filed a motion seeking to have any incarceration of Hunter delayed.

“We need time to prepare to allow Judge Hunter out on appeal,” Bennett said.

Nadel will rule on that early next week.

Hunter’s troubles aren’t over.

In addition to the single count for which she was convicted, a mistrial was declared on eight other charges. Bennett expects Special Prosecutors Merlyn Shiverdecker and R. Scott Croswell III to seek to have Hunter stand trial again for them. They carry a maximum prison sentence of more than 10 years.

She also faces, after her felony conviction, possible discipline by the Ohio Supreme Court that could include revoking her law license.

The sentence ends a tumultuous year for Hunter and a controversy-filled four years since she ran for judge.

She was indicted and suspended in January after she was accused of backdating and forging documents to help defense attorneys and using a county-owned credit card to pay her personal legal bills.

Hunter, 48, ran as a Democrat for judge in 2010, beating the Democrat-endorsed challenger in a primary. She initially lost the election but sued, saying some votes weren’t counted. She won the suit, the votes were counted and Hunter won the eleection by 74 votes.

She battled with The Enquirer over access to the public courtroom and documents, with the Public Defender over her delay in resolving adoption cases, with the prosecutors, appeals court and Ohio Supreme Court.

Hunter’s prosecution cost taxpayers more than $400,000

North American Stainless to Make $5 Million Investment in Ghent Facility

Saturday, December 6th, 2014

North American Stainless to Make $5 Million Investment in Ghent Facility

Press Release Date: Friday, December 05, 2014
Contact Information: Kerri Richardson
Terry Sebastian

Investment the result of Governor’s trip to Spain

FRANKFORT, Ky. – Gov. Steve Beshear today announced that North America Stainless (NAS) plans to expand its facility in Carroll County.

NAS will invest $5 million to add a fourth steel slitter line. The expansion, which is the company’s 10th since it began operations in Kentucky in 1990, will also include the addition of 15 new jobs at the Ghent plant.

“North American Stainless and its parent company, Acerinox, S.A., continue to make substantial investments in Kentucky,” said Gov. Beshear. “This announcement demonstrates the company’s continued confidence in our workforce and business climate. We want to thank NAS for investing in Kentucky, and I look forward to working with the company to create even more success.”

Construction on the slitter line will begin in January 2015 and is expected to be completed in early 2016. Slitting is the process of cutting large rolls of steel into more narrow rolls. The stainless steel is used in a variety of products, including appliances, automotive, plumbing, general manufacturing and the food service industry.

NAS is a subsidiary of Acerinox, S.A., headquartered in Madrid, Spain. To date, the company has invested more than $2.5 billion in its Carroll County facility, making it the largest Spanish industrial investment in the U.S. NAS, which also is the largest, fully integrated stainless steel producer in the nation, has more than 1,350 employees.

During a trip to Europe, Gov. Beshear met with Acerinox at its headquarters in Madrid to discuss energy policies and future investments. The meeting played a pivotal role in the company’s decision to expand in the Commonwealth.

“Our parent company, Acerinox, S.A., with its worldwide operations, has choices on where to invest,” said Cristobal Fuentes, president and CEO of North American Stainless. “We appreciate the Governor meeting with the executives of Acerinox, S.A. in Madrid and are very pleased that our parent company has again demonstrated its confidence in our employees, Kentucky and Carroll County by authorizing this investment. I know that with the continued support of Acerinox, S.A., Kentucky and the county that our employees will continue to compete globally.”

Foreign direct investment has played an important role in boosting Kentucky’s economy. Last year, nearly 40 percent of all capital investment and a third of new jobs announced in the manufacturing, service and technology industries were a result of foreign-owned enterprises.

Steel also continues to be a big driver of Kentucky’s economy. The industry accounts for more than $1.4 billion in GDP and employs more than 4,000 people statewide.

“North America Stainless means so much to our community, so this latest announcement is truly great news,” said Rep. Rick Rand, of Bedford. “I want to thank its leaders for taking this step and adding these jobs, and I want to thank Gov. Beshear and his administration for working with the company to help make all of this possible. It speaks volumes about the quality of workforce we have here. It truly is second-to-none.”

“I am extremely pleased that NAS is continuing to expand its presence and creating even more jobs in Carroll County,” said Sen. Paul Hornback, of Shelbyville. “This is a vote of confidence in the citizens of this area who make up the NAS workforce. It also shows that Kentucky is working not only to attract new industry, but even more importantly, recognizes and values the industries that have already deeply invested in our state and our people.”

“With the support of our county and the Commonwealth over the last 25 years, we have seen the payroll of NAS grow from a few hundred to 1,350,” said Carroll County Judge-Executive Harold “Shorty” Tomlinson. “This new investment means even more good-paying jobs. I thank Gov. Beshear for promoting the expansion. I also want to thank NAS and Acerinox, S.A. for their confidence in our workforce and for supporting our community projects and local charities.”

A detailed community profile for Ghent (Carroll County) can be viewed here.

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 or follow on Twitter. Watch the Cabinet’s “This is My Kentucky” video on YouTube.


AG Conway Announces $3.8 Million Multistate Settlement with Sirius XM Radio

Friday, December 5th, 2014


Press Release Date: Thursday, December 04, 2014
Contact Information: Daniel Kemp
Deputy Communications Director
502-696-5659 (office)

FRANKFORT, Ky. - Attorney General Jack Conway and his Office of Consumer Protection, along with the attorneys general of 44 other states and the District of Columbia, have resolved consumer protection claims alleging that Sirius XM Radio Inc. engaged in misleading advertising and billing practices.

Kentucky’s Assurance of Voluntary Compliance (AVC) in the multistate agreement was approved this morning by the Franklin Circuit Court.  The AVC requires the company to provide a complaint resolution and restitution program for eligible consumers to resolve certain consumer claims, to make significant changes to its business practices, and to pay $3.8 million to the states.  The Commonwealth of Kentucky received $65,480.96 for its participation in the settlement.

The attorneys general allege that Sirius XM engaged in misleading, unfair, and deceptive acts or practices in violation of state consumer protection laws. The states’ investigation focused on consumer complaints about difficulty canceling contracts, unhonored cancellation requests and misrepresentations about cancelling or not renewing Sirius XM service, automatic renewal of contracts without notice or consent, unauthorized fees, higher and unanticipated rates after a low introductory rate, and failure to provide timely refunds.

The AVC requires Sirius XM to change its business practices.  Specifically, the company agrees to:

• Clearly and conspicuously disclose all terms and conditions at the point of sale, such as billing frequency, term length, automatic renewal date, and cancellation policy.
• Make no misrepresentations about the available plans in advertisements.
• Provide advance notice via mail or email about upcoming automatic renewals for plans lasting longer than six months.
• Revise the cancellation procedures to make it easier for consumers to cancel.
• Prohibit incentive compensation for customer service representatives based solely on “saves,” or retaining current customers who attempt to cancel.

“Companies that utilize deceptive and unfair business practices to take advantage of consumers and violate Kentucky’s consumer protection laws will be held accountable,” Attorney General Conway said.  “I am pleased that we have reached today’s agreement requiring Sirius XM Radio to make significant changes to its business practices and return money that is rightfully owed to consumers.  I encourage any Kentucky consumers who are eligible for a refund to submit a claim through the restitution program.”

Consumers have until May 1, 2015, to file a complaint to be considered for restitution.  In order to be considered, consumers must file a complaint about issues addressed by the AVC, concerning conduct from July 28, 2008, to Dec. 4, 2014, and involving an identifiable loss that has not been previously resolved.

To file a complaint, consumers can contact Sirius XM directly with their complaints.  Complaints can be mailed to P.O. Box 33059, Detroit, MI 48232 or submitted online at

Kentucky consumers can also submit complaints by visiting Attorney General Conway’s website at or by calling the Attorney General’s Office of Consumer Protection at (502) 696-5389 to request a form.

Complaints previously filed, but which remain unresolved, may also be submitted for reconsideration under the restitution program.

You can follow Attorney General Conway on Twitter @kyoag, visit the Attorney General’s Facebook page or view videos on our YouTube channel.

Man accused of slaying prominent Somerset attorney might rely on insanity defense

Thursday, December 4th, 2014

BY BILL ESTEP December 3, 2014

Clinton D. Inabnitt’s attorney filed notice Tuesday of the potential insanity defense.

At a hearing Tuesday, a psychiatrist testified that Inabnitt, 40, is schizophrenic and delusional, but refuses to take medication to deal with his mental illness.

Inabnitt is charged with murder in the June 27 slaying of Mark Stanziano, 57.

Inabnitt, who lived in an apartment across the street from Stanziano’s office in downtown Somerset, is charged with ambushing the attorney as he arrived for work, walking into the street and shooting Stanziano several times.

There were a number of witnesses, including a Pulaski County sheriff’s detective who ordered Inabnitt to put down his gun after the shooting. Inabnitt complied and the detective handcuffed him.

Inabnitt told police he heard voices and had been bothered by persistent ringing in his ears, and that he had received a message through the local newspaper telling him to kill Stanziano.

Dr. Amy Trivette, a psychiatrist from the Kentucky Correctional Psychiatric Center, said at a hearing Tuesday that Inabnitt is not currently competent to stand trial, said the prosecutor, Commonwealth’s Attorney Eddy Montgomery.

That does not mean Inabnitt won’t be tried, however.

Circuit Judge David Tapp authorized the center to treat Inabnitt with anti-psychotic drugs, against his will if necessary.

Trivette had said in a letter before the hearing that such treatment would decrease Inabnitt’s symptoms and improve the likelihood he would be competent to stand trial later.

Inabnitt’s attorney, Richard B. Leary, said he opposed involuntarily medicating Inabnitt. One concern is that the medication could compromise Inabnitt’s ability to participate in his defense, Leary said.

The issue of competency deals with whether a defendant is capable of assisting in his or her defense. That is a different issue than insanity, which deals with whether a person was rational enough to knowingly commit a crime.

Tapp put off further action in the case for 60 days to allow time to treat Inabnitt.
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Tennessee Ethics Board Sued by Bar Members

Tuesday, December 2nd, 2014

Monday, December 1, 2014

By Legal Profession Prof


A news story from

A bombshell of a lawsuit goes in front of a Nashville  judge Thursday as a pair of Nashville lawyers are suing their own ethics board for what they call ethical violations and a cover-up.

That means they are suing the very people who punish lawyers for bad ethics.

It all started when one lawyer saw an email about his upcoming case sent to a judge without his knowledge.

When a lawyer is punished for some kind of ethical violation, it is the job of the Board of Professional Responsibility for the Supreme Court of Tennessee to hold a hearing and decide guilt or innocence.

However, when attorney Jim Roberts was looking  into defending himself, he saw an email from the board to the judge in his case describing the case.

It was a secret email he knew nothing about.

“We discovered that the Board of Professional Responsibility was systematically engaging in unethical conduct. They, on a regular basis, were having secret conversations with judges, and now they are trying to cover it up,” Roberts said.

Attorney Connie Reguli made a Freedom of Information Act request for all emails regarding upcoming cases against lawyers.

“It’s as if I would send a letter to a judge saying, ‘judge, I’m coming into your courtroom tomorrow, and this guy is a real schmuck. And here is what I want you to do,’” Reguli said.

Reguli got the emails from the Board of Professional Responsibility, but there was a huge problem. There were at least 50 pages of redacted emails.

“They’ve taken it all out,” Reguli said. “They’ve deleted everything else on that email, and it’s high importance.”

“There is no way that one side gets to have secret communications with a judge and the other side not know about it and not be told about it,” Roberts said. “And we’ve caught them. We caught them red-handed, acting unethically, and they have to explain it.”

Channel 4 News sought a statement from a representative for the Board of Professional Responsibility but we never heard back.

The issue goes to court Thursday, and Roberts and Reguli said they will demand unredacted, unerased emails.

(Mike Frisch)

Ky. Department of Agriculture looking for hemp growers for 2015

Tuesday, December 2nd, 2014



jpatton1@herald-leader.comDecember 1, 2014 Updated 10 hours ago



Rich Mundell, a University of Kentucky agronomist and co-project leader, drove a tractor with a sickle bar mower to cut the experimental hemp crop in September.


The Kentucky Department of Agriculture is taking applications for next year’s industrial hemp pilot projects. Potential growers must apply by Jan. 1; farmers who are chosen will be notified in late January.

“The first round of pilot projects with the universities and individual farmers in 2014 yielded a tremendous amount of data about production methods, seed varieties, harvesting and processing techniques, and uses for the harvested hemp,” Agriculture Commissioner James Comer said in a statement.

“We’re looking to conduct a wide scope of pilot projects in 2015. When the day comes that commercial hemp production is open to all producers and processors in Kentucky, we want to be ready.”

Hemp was grown in 2014 for the first time since it was outlawed decades ago along with marijuana, which has far more of the high-inducing chemical THC. Several research plots were grown by universities, and a handful of farmers grew private plots. Results of the research projects are likely to be released by the end of January.

To grow hemp, applicants must provide the physical address of the production fields and anywhere the hemp will be processed or stored.

Applicants who are selected will undergo background checks and site visits. A person with a felony drug conviction within 10 years of submitting an application will not be eligible to participate in any pilot project, according to the state.

The application is available for download on the department’s website, Applications may be completed electronically and submitted to Applications also may be printed, filled out and mailed to Kentucky Department of Agriculture, Industrial Hemp Program, 111 Corporate Drive, Frankfort, Ky. 40601.

Janet Patton: (859) 231-3264. Twitter: @janetpattonhl.

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