Selected pleadings and supporting documents filed by Chesley with Ky. Supreme court on January 25, 2012 asking for order allowing him to discovery information about the Ford distribution and names of attorneys who received distribution from Ford.

Selected pleadings and supporting documents filed by Chesley with Ky. Supreme court on January 25, 2012 asking for order allowing him to discovery information about the Ford distribution and names of attorneys who received distribution from Ford.

 

****************************

Motion Filed by Chesley with Ky. Supreme Court Seeking Discovery

 

Supreme Court Of Kentucky

201 1-SC-000382-KB

00-KBA-13785

 

KENTUCKY BAR ASSOCIATION COMPLAINANT

 

STANLEY CHESLEY RESPONDENT

 

MOTION FOR LEAVE TO SUPPLEMENT PENDING MOTION

TO ALLOW LIMITED DISCOVERY ON DEPRIVATION OF DUE PROCESS BY FILING

DISCOVERY REQUESTS RECENTLY FILED IN RELATED ACTIONS

 

May It Please The Court

 

The Respondent respectfully moves the Court for leave to file the attached

documçnts as Supplement to his Motion to Abate to Allow Limited Discovery on

Deprivation of Due Process Specifically the tendered filings demonstrate Respondents

efforts in other forums to obtain the discovery also sought by the motion pending in this

Court

 

The Court will recall that Respondent seeks to discover among other things

whether Angela Fords payments to co-counsel from funds she collected on the judgment against Gallion Cunningham and Mills in the Abbott case resulted in conflict of

interests that would have required Bar Counsel to recuse or otherwise impacted

Respondents due process rights in this case One such recusal has already occurred

in this case.

 

Afier Judge Messer had presided as Trial Commissioner at several days of

hearings in this discipline case counsel for Respondent discovered that member of

Judge Messers immediate family was an attorney in small law firm acting as co

counsel with Ms Ford in her efforts to collect the Abbott judgment Judge Messer

recused himself If member of the immediate family of Chief Bar Counsel or anyone

else associated with the KBAs efforts to punish Respondent for the criminal actions of

Gallion and Cunningham was also co-counsel to Ms Ford the failure to disclose that

information and make appropriate disqualifications would be deprivation of due process

requiring the decision below to be vacated for new trial Hence Respondent is

endeavoring to take discovery on that issue

 

Subsequent to filing the motion in the Court Respondent filed motion in federal

court seeking to unseal the accounting Judge Reeves ordered Ms Ford to render to the

U.S Attorney Judge Reeves confirmed that the accounting disclosed that Ms Ford

had shared fees with five other lawyers Despite the express language of Judge Reeves

prior Order however those lawyers were not named in the accounting and Judge Reeves

 

therefore decided that unsealing the document would not assist Respondents discovery

efforts See Order of January 2012 attached as Exhibit and Order of January 10

2012 attached

 

Shortly after the ruling by Judge Reeves Respondent filed Motion to Lift the

Discovery Stay in Mildred Abbott et all Stanley Chesley et al Case No 05-Cl-

00436 Boone County Circuit Court with accompanying discovery requests for the

purpose of discovering the facts related to Angela Fords execution upon the judgment

rendered in that case See Motion to Lift Discovery Stay attached hereto as Exhibit

with discovery pleadings attached That motion is noticed to be heard in Boone Circuit

Court by Special Judge Geoffrey Morris on March 2012

 

See Exhibit Respondents Motion for Reconsideration or Clarification is Attached as Exhibit

 

In sum Respondent is diligently pursuing discovery in other fornms while this

Court considers his pending motion for leave to take discovery in this case Accordingly

Respondent requests that the Court consider these supplemental materials attached as

Exhibits and and hold this case in abeyance pending the resolution of the

discovery previously filed with the Motion to Abate filed under seal with the Motion to

Abate Respondents Motion to Lift the Discovery Stay filed in Abbott and the

discovery requests served with the Motion to Lift the Discovery Stay in Abbott

Respondent would also emphasize that while this discovery is focused upon these

recent factual developments they are not the only due process issues presented by his

appeal in this case Those issues are filly briefed and need not be repeated here See

Brief for Respondent pp 86-90

 

DISCUSSION

Because discovery has been stayed in Abbott pending Gallion and Cunninghams

appeal of the civil judgment in that case now pending in this Court and because he has

not been provided copy of Ms Fords accounting filed in federal court Respondent

has been unable to date to discover the facts attendant to Angela Fords execution upon

the $42 million judgment obtained against William Gallion Shirley Cunningham and

Melbourne Mills G-C-M and whether it has connection to Bar Counsels termination

and these disciplinary proceedings Respondent however continues to diligently make

good faith attempts to discover the facts related to Fords execution upon the judgment on several fronts He filed motion to intervene in the federal criminal case against Gallion

and Cunningham in an attempt to receive copy of the accounting information filed

therein by Ms Ford He filed motion to lift the discovery stay imposed in Abbott when

G-C-M appealed the grant of summary judgment against them and the Abbott plaintiffs

cross-appealed the order denying partial summary judgment against Respondent.2 He

has noticed hearing on his motion to lift the discovery stay in Abbott at the earliest date

available March and filed proposed discovery requests with that motion.3

 

As recounted in the pending motion Ms Ford has been resisting the U.S

Attorneys request for information since February 2011 After Judge Reeves ordered Ms

Ford to file an accounting specifically including amounts paid to co-counsel as shared

fees Ms Ford vigorously resisted rendering full accounting of the funds collected in

satisfaction of the $42 million judgment which has caused many members of the Bar to

wonder what was being concealed from the public record in fen-phen related

proceedings Subsequent events raise those concerns to incredulity

 

It turns out that the accounting filed by Ford was anything but full and

complete because it assiduously avoids naming the lawyers paid by Ford Judge Reeves

Order required the accounting to name the lawyers with whom Ms Ford shared fees

Indeed her ongoing appeal to the Sixth Circuit emphasizes the fact that Judge Reevess

order requires disclosure of those names.4 After she filed the accounting under seal

she unsuccessfully sought stay from the Sixth Circuit of Judge Reevess second order

requiring the sealed accounting be turned over to the U.S Attorney Yet her

While the denial of the Abbott Plaintiffs motion for partial summary judgment against Respondent remains on appeal the Circuit Court retained jurisdiction to consider Respondents request to lift the discovery stay because the denial of summary judgment as to him was an interlocutory nonappealable order Bell Harmon 284 S.W.2d 812 814 Ky 1955 Roman Catholic Bishop of Louisville Burden 168 S.W.3d 414 419 Ky App 2004

 

It is well settled in this Commonwealth that the denial of motion for summary judgment is interlocutory and is not appealable.

 

Respondents proposed Interrogatories filed with the motion to lift the discovery include such noninvasive requests as Identify the total amount of all funds or property collected by you or your counsel in satisfaction of the judgment previously rendered in this litigation against the various Defendants Identify the total amount of funds distributed to Plaintiffs in this action Identify the attomey fees paid to your counsel Angela Ford from the funds collected in satisfaction of the judgment rendered against Defendants

Gallion and Cunningham in this litigation and Identify the attorney fees paid to counsel other than Angela Ford by you or Angela Ford either directly or indirectly through any third party for work in this litigation

 

Case No 11-6187 Document 00611143825

 

compliance with the order defiantly fails to disclose the names of the lawyers who

received fees from the collected fttnds The obvious question that needs to be answered

is why one would go to such extraordinary lengths to withhold the identities of those

lawyers from the public if that information were benign

 

All of this is relevant to these disciplinary proceedings because the employment

of Chief Bar Counsel with the Kentucky Bar Association was abruptly terminated only

one week afler Ms Ford rendered the accounting of the tbnds to the United States As

set forth in the Motion to Abate the circumstances attendant to the termination

including the fact she was not allowed to enter her office and the KBA reftisal to make

any comment concerning this abrupt termination of long term high ranking employee

have raised the question whether it was in any way related to the identity of the lawyers

with whom Ms Ford has shared fees in Abbott such as disclosing conflict of interests

that would have required Bar Counsel to recuse in these disciplinary proceedings As set

forth in the pending motion determining the identity of the attorneys who have received

money from Ms Ford and determining whether the undisclosed co-counsel arrangements in Abbott created conflict of interests that have deprived Respondent of his due process rights herein is clearly relevant to this appeal.5

 

Adding to this bona fide concern regarding possible conflict of interests is the

fact that this would be the second time conflict arose in Respondents case related to

Ms Fords fee sharing in Abbott Indeed two Trial Commissioners appointed herein

were recused for conflicts and Bar Counsel showed little concern for working to choose

If Bar Counsel deliberately withheld conflict of interest from any person this would be violation of the right to due process Cf Brady Maryland 373 U.S 83 87 1963 holding that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution Commonwealth Bussell 226 S.W.3d 96 99 Ky 2007 following Brady conflict-free Trial Commissioners.6 The second Trial Commissioner Hon Roderick Messer presided over Respondents disciplinary hearing for approximately five days before Respondent learned that the law firm of Judge Messers son was engaged as co-counsel in Ms Fords collection efforts

 

When confronted with the conflict Judge Messer belatedly recused himself and Respondents proceedings were continued for nearly year while new Trial Commissioner was appointed

 

Accordingly Respondent requests that this Court consider the attached

supplemental material and abate this matter pending resolution of not only the requests

for production of documents tendered with Respondents Motion to Abate but also his

Motion to Lift the Discovery Stay filed in Abbott and his subsequent receipt of responses

to those discovery requests Like the limited discovery filed with the Motion to Abate

this Abbott discovery is vital to ascertaining whether the facts related to Fords execution

upon the $42 million judgment obtained against G-C-M created conflict of interests that

would have deprived Respondent of his due process rights herein

 

CONCLUSION

 

For the foregoing reasons the Court should grant Respondent leave to file the

attached supplemental material enter an order requiring the KBA to respond to the

requests for production of documents tendered under seal with the Motion to Abate and

hold this case in abeyance to permit time for the parties answer the discovery filed with

the Motion to Abate and the discovery served with Respondents Motion to Lift the

Discovery Stay filed in Abbott The first Trial Commissioner Frank Doheny Jr recused due to his Cincinnati-based law firms many conflicts with Respondent

 

Respectily submitted

 

Sheryl Snyder

Griffin Sumner

Frost Brown Todd LLC

400 Market St 32nd Fl

Louisville KY 40202

Phone 502-589-5400

Fax 502-581-1087

Counsel for Respondent Stanley Chesley

 

CERTIFICATE OF SERVICE

 

It is hereby certified that on January 24 2012 copy of this Motion for Leave to

Supplement Pending Motion to Allow Limited Discovery on Deprivation of Due Process

by Filing Discovery Requests Recently Filed in Related Actions was mailed First Class

postage prepaid to Jane Herrick Deputy Bar Counsel Kentucky Bar Association 514

West Main Street Frankfort KY 40601 and Susan Greenwell Disciplinary Clerk

Kentucky Bar Association 514 West Main Street FrankfORT 40601

Counsel

StanleyM Chesley

 

******************************************

 

UNITED STATES DISTRICT COURT Ecror

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

AT COVINGTON DEC 22-2011

 

UNITED STATES OF AMERICA

 

CLERK US DISTRICT COURT

Plaintiff

Case No 207-CR-00039-DCR

WILLIAM GALLION and

SHIRLEY CUNNINGHAM JR

Defendants

 

MOTION OF STANLEY CHESLEY FOR LEAVE TO INTERVENE

AND TO PROVIDE HIM WITH PREVIOUSLY SEALED FILING MADE

AVAILABLE ONLY TO THE UNITED STATES

 

Movant Stanley Chesley by counsel respectfully requests leave to intervene

in this criminal case for the limited purpose of moving the Court to permit the United

States Attorney to provide his counsel with copy of the accounting information filed by

Angela Ford on July 11 2011 DN 1289 made available to the United States by this

Courts Order of September 2011 DN 1303 and presumably tendered under seal to

the United States Attorney no later than November 2011 James Gary the undersigned co-counsel for Mr Chesley previously filed his pro so motion for leave to intervene in this case as member of the public for the sole purpose of seeking an Order from this Court granting the public access to this same accounting information

 

The Court denied Mr Garys motion in its Memorandum Opinion and Order dated September 2011 DN 1303 finding that Mr Gary failed to establish valid basis for making this information available to the public

 

Cse 207-cr-00039-DCR Doc 1318 Filed 12/22/Il Page of 12- Page ID 24132

 

Since the denial of this prior motion developments in Mr Chesleys disciplinary

matter have warranted the filing of the present motion which is now being filed for and

on behalf of Mr Chesley As referenced and argued below Mr Chesley and his

counsel sincerely believe that these developments constitute sufficient grounds and

basis to at least make the requested information available for private inspection by Mr

Chesley and his counsel and/or in the alternative available to the public

 

The public has right recognized at common law and protected by the First

Amendment to access these accounting records and preventing their disclosure does

not serve any important overriding interest here To the contrary the fundamental

policy interests of transparency openness and fairness in criminal proceedings

mandate disclosure to Mr Chesley either individually and/or as member of the public

since the accounting records in question could fundamentally affect the question of

whether Mr Chesley was deprived of his due process rights in his disciplinary case

prosecuted by the Kentucky Bar Association

 

INTRODUCTION AND BACKGROUND

 

Ford is the court appointed crime victims advocate in this case DN 54 She

also personally represents some but not all of the alleged victims in civil action in

Kentucky state court against the Defendants and Mr Chesley seeking damages related

to the settlement of the Guard fen-phen lawsuit the Abbott case1 In Abbott Ford

obtained summary judgment against William Gallion Shirley Cunningham and

Melbourne Mills G-C-M but was denied summary judgment as to Mr Chesley

Mildred Abbott et Melbourne Mills Jr et aL Boone circuit Court No 05-Cl-436

Cse 207-cr-00039-DCR Doc 1318 Filed 12/22/Il Page of 12- Page lD 24133

In Mr Chesleys pending disciplinary case Bar Counsel nonetheless sought an

order compelling Mr Chesley to pay $7.5 million to the Abbott plaintiffs despite the fact

that the plaintiffs motion for summary judgment against Mr Chesley was denied and

the Abbott action is still pending as to Mr Chesley

 

Meanwhile Ms Ford acting as victims advocate filed motion with this Court

seeking distribution of the funds in the U.S Marshals possession to the Abbott plaintiffs

in accordance with distribution orders entered by the Boone Circuit Court DN 1249

The Court granted Fords motion DN 1251

 

After the Court of Appeals vacated the summary judgment against G-C-M in the

Abbott case2 the United States asked Ford to provide full accounting of the funds

collected and distributed in Abbott including funds distributed to non-victims This

accounting would include information about the disposition of the funds Ford withheld as

her legal fees and fees shared with other unnamed lawyers Ford refused the request

and the United States sought relief from this Court DN 1283 This Court granted the

United States motion and directed Ford to provide full and complete accounting of all

funds collected by her in the civil action.. and not distributed to victims DN 1284

Ford filed lengthy objection to the Order DN 1286 and asked the Court to stay the

Order pending ruling on her objection DN 1287

 

The Court denied Fords motion to stay but amended its Order to reflect that all

information provided in response to the Order shall be filed under seal pending further

orders of the Court DN 1288 Ford filed her accounting under seal on July 112011

The court of Appeals of Kentucky correctly held that the order denying the motion for summary judgment against Mr. Chesley was not an appealable order Abbott Chesley No 2007-cA-002174

Slip Op Ky App Feb 2011

 

motion for discretionary review Is presently pending in the Kentucky

Supreme Court Abbottv Cheseey No 2011-Sc-000291-O Ky filed June 13 2011

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/il Page of 12- Page ID 24134

DN 1289 1290 The United States then filed motion for partial lift of the seal so

that it could access the information DN 1293 The undersigned counsel for Mr

Chesley moved to intervene pro so in this action and requested copy of the

accounting DN 1292

 

On September 2011 this Court denied the undersigned counsels pro se

motion but made the previously sealed filing available to the United States DN 1303

Ford appealed that order and on November 2011 the Court of Appeals denied

Fords motion to stay the September Order pending appeal On information and

belief Ms Ford rendered the accounting under seal to the United States Attorney no

later than November 2011

 

Approximately one week later Bar Counsel Linda Gosnells employment with

the Kentucky Bar Association was abruptly terminated The circumstances attendant to

the termination have raised the question whether it was in any way related to the

accounting rendered on November such as disclosing conflict of interest that

would have required Bar Counsel to recuse herself in Mr Chesleys still-pending

disciplinary proceedings.3 There is reason to believe that the accounting may disclose

conflicts of interest germane to the proceedings

 

Accordingly Mr Chesley hereby moves this Court to permit the United States

Attorney to provide his counsel under an appropriate protective order redacted copy

of the accounting that would identify only the attorneys who have received money from

Ford in the Abbott case in order that counsel may determine whether the co-counsel

See Andrew Wolfson Kentucky Bar Associations chief disciplinary counsel ousted THE COURIER JoURNAL Nov 21 2011

 

http//www.courierJournaLcon/apps/pbcs.dll/articIeAlD201 1311210104 last

visited 12/20/2011 attached as Exhibit

 

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/Il Page of 12- Page ID 24135

arrangements in Abbott created conflict of interests that would have deprived Mr

Chesley of his due process rights and required Bar Counsel to recuse in his disciplinary

matter warranting new trial under 8CR 3.400 In the alternative Mr Chesley moves

that this information be made available to the public at large

 

ARGUMENT

Fords accounting of funds should be provided to Mr Chesley

The public has right of access to criminal trials and records protected by the

First Amendment to the U.S Constitution Globe Newspaper Co Superior Court for

Norfolk County 457 U.S 596 603 1982 The public also has general common law

right to inspect and copy court records Nixon Warner Communications Inc 435

U.S 589 597 1978 It is clear that the courts of this country recognize general right

to inspect and copy public records and documents including judicial records and

documents Courier-Journal and Louisville Times Co Peers 747 S.W.2d 125 128

Ky 1988

 

Open access serves number of important functions As the Supreme Court

explained public access permits the public to participate in and serve as check upon

the judicial process an essential component in our structure of self-government

Globe Newspaper 457 U.S at 606 Openness in criminal proceedings enhances both

the basic fairness of the criminal trial and the appearance of fairness so essential to

public confidence in the system Press-Enterprise Co Superior Court 464 U.S 501

508 1984 Press-Enterprise Accordingly the press and the public have

See e.g Ganger Peyton 379 F.2d 709 4th dr 1967 prosecutors conflict of interest rendered conviction unconstitutional as deprivation of due process requiring new trial Nunn Commonwealth 896 S.W.2d 911 Ky 1995

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/11 Page of 12- Page lD 24136

 

…constitutional right of access that attaches where the information sought has historically

been open to the press and general public and where public access plays significant

positive role in the functioning of the particular process in question.. Press-Enterprise

Co Superior Court 478 U.S 1986 Press-Enterprise II

 

The right is not absolute but it is also not easily outweighed The presumption

of openness may be overcome only by an overriding interest based on findings that

closure is essential to preserve higher values and is narrowly tailored to serve that

interest The interest is to be articulated along with findings specific enough that

reviewing court can determine whether the closure order was properly entered Press-

Enterprise 464 U.S at 510

 

Fords accounting of funds she retained or distributed to other lawyers in the

Abbott case implicates larger issues of fairness openness and deprivation of due

process in connection with Mr Chesleys disciplinary proceedings and there is no

compelling reason to withhold that information from Mr Chesley as member of the

general public Mr Chesley needs access to the accounting to determine whether it

reveals any connection to the termination of Bar Counsels employment and whether

Bar Counsel had connection to Abbott such that she denied Mr Chesley due process

of law in prosecuting his disciplinary case while laboring under an undisclosed conflict of

interest

 

The circumstances surrounding the provision of the accounting to

the United States and Bar Counsels termination combined with Bar

Counsels prosecution tactics strongly suggest that Mr Chesley

may have been denied due process Approximately one week after the accounting was rendered to the United States Attorney Bar Counsels employment with the Kentucky Bar Association was

 

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/11 Page of 12- Page ID 24137

 

terminated This plainly raises questions whether the termination was in any way

related to the accounting such as disclosing conflict of interests that would have

required Bar Counsel to recuse in Mr Chesleys disciplinary case The unusual

circumstances attendant to the abrupt termination coupled with the refusal of the KBA

to make any public statement concerning the reasons for the termination5 have

resulted in the understandable inference that the termination was for cause and the

understandable concern that the cause could rise to the level of prosecutorial

misconduct in one or more pending discipline cases This is not idle speculation but

bona fide concern regarding whether there are facts which should be disclosed to Mr

Chesley so that he can ascertain whether his disciplinary proceeding was inherently

unfair and in violation of his due process rights.6

 

It has been widely reported and/or speculated that Bar Counsels overly

zealous prosecutorial tactics specifically including attempting to recover the fees of

outside counsel in lawyer discipline cases was factor in the termination of her

employment Those reports include the fact that on November 15 2011 the Supreme

Court of Kentucky amended 5CR 3.3708 to eliminate the requirement that lawyer

post bond in the full amount of the bill of costs served by the KBA as prerequisite to

appealing to the Court rule that required Mr Chesley to bond the unprecedented

$88579.62 bill of costs served by Bar Counsel in his case

 

See The Enquirer Bar Association denies request for information cINcINNATI NEWS Nov 25 2011 http//news.cincinnati.com/article/20111125/NEWS01 03/311250190/Bar-association-denies-request information last visited 12/20/2011 attached as Exhibit

 

If Bar counsel deliberately withheld conflict of interest from any person this would be violation of the right to due process Cf Brady Maryland 373 u.s 83 87 1963 holding that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution

Corn Bussel/ 226 S.W.3d 96 99 Ky 2007 following Brady

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/11 Page of 12- Page lD 24138

 

There is fine line between excessive zeal and prosecutorial misconduct

Moreover the improper practice of shifting legal fees to respondents in discipline cases

was done in Mr Chesleys discipline case Indeed Bar Counsel charged Mr Chesley

for legal fees that were incurred by the KBA in the criminal trial conducted by this Court

This is an example of the kind of conduct that may have factored into the termination of

her employment Specifically the bill of costs served upon Mr Chesley in his disciplinary case included $15,736.86 paid as fees to Jane Graham Lexington attorney apparently for attending and observing Mr Gallions criminal trial.7 The contemporaneous invoices

from attorney Graham were so severely redacted that it is unclear what services were

rendered for which the KBA paid $15736.86 The legal services rendered by Ms

Graham were subsequently explained in two letters from Ms Graham to Ms Gosnell

written in June 2011 two years after the fees had been paid by the KBA One of the

letters tersely explained that Ms Grahams services had been rendered in connection

with Ms Gosnells appearance as witness in the federal prosecution of Gallion and

Cunningham.8

 

Significantly Jane Graham was also appointed as special prosecutor Special

Bar Counsel in the pending discipline case against former KBA President Barbara

Bonar the pendency of that case has previously been confirmed publicly by the KBA

pursuant to SCR 3.1502biQ.9 On information and belief and from what is

 

The U.S Attorney stated in her brief to the Sixth Circuit on Gallions appeal that Mr chesley was never target in this criminal mailer

See June 2011 letter from Graham attached as Exhibit

See Exhibit

 

Ms Gosnell appropriately recused herself and her office In the Bonar discipline case

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/il Page of 12- Page lD 24139

otherwise patently obvious counsel concludes that Ms Bonars lawyer discipline case

is being held in abeyance pending resolution of her civil lawsuit against Mr Chesley

presently pending before the Supreme Court of Kentucky.1 It is standard practice for

lawyer discipline cases to be held in abeyance pending resolution of related civil

litigation Indeed counsel for Mr Chesley are unaware of any previous discipline case

that was not stayed in those circumstances

 

Nevertheless Bar Counsel strenuously resisted Mr Chesleys motions to hold

his disciplinary case in abeyance pending resolution of the closely related Abbott case

Despite the fact that Bar Counsel seeks restitution of $7.5 million using the Abbott case

as the vehicle Mr Chesleys discipline case has not been stayed pending the outcome

of that closely related civil litigation The disparate treatment of Mr Chesley and Ms

Bonar his civil litigation adversary effectuated by the special prosecutor in Ms

Boners discipline case whose legal fees in the prosecution of Mr Gallion are being

charged to Mr Chesley in his disciplinary case is troubling and possibly emblematic of

larger conflict of interest that has deprived Mr Chesley of his due process rights

There is no overriding interest at stake here that should prevent the disclosure

of the accounting to Mr Chesley under protective order Mr Chesley does not simply

seek the disclosure of the accounting to the general public Providing the accounting

only to him with strictures on its use will not run counter to 18 U.S.C 3664d4s

direction to maintain the privacy of records filed pursuant to orders of restitution to the

greatest extent possible Mr Chesley needs access to the accounting to determine

whether it reveals any connection to the termination of Bar Counsels employment and

Bonar Chesley No 2010-SC-00087-DR Ky filed Feb 11 2010 fee dispute arising out of the covington Archdiocese class action

 

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/il Page 10 of 12- Page lD

24140

 

whether Bar Counsel denied Mr Chesley due process of law in prosecuting his

disciplinary case while laboring under an undisclosed conflict of interest

II Mr Chesley has standing to intervene for this limited purpose

Intervention is the appropriate procedure by which to raise this issue with the

Court It is well settled that members of the press and public have right to intervene in

judicial proceeding for the limited purpose of opposing the closure of court records

and proceedings As the Supreme Court recognized of the press

and general public must be given an opportunity to be heard on the question of their

exclusion Globe Newspaper 457 U.S at 610 n.25 citation omitted and see e.g

Application of Storer Communications Inc 828 F.2d 330 335 6th Cir 1987

recognizing that public has legitimate interest in criminal proceedings.. and

thus media organizations may move to intervene for the purpose of contesting closure

of hearings and the sealing of documents

 

Indeed public standing to intervene for this purpose is necessary because the

publics right of access may at times be at odds with the desires of the parties to the

case As one court explained Since by its nature the right of public access is shared

broadly by those not parties to the litigation vindication of that right requires some

meaningful opportunity for protest by persons other than the initial litigants some or all

of whom may prefer closure Appilcation of The Herald Co 734 F.2d 93 102 2nd Cir

1984

 

Mr Chesley as public citizen has standing to assert the publics interest in

openness of the criminal process and the publics rights to access the accounting filed

by Ford and provided to the United States

 

10 Case 207-cr-00039-DCR Doc 1318 Filed 12/22/il Page II of 12- Page ID

24141

 

CONCLUSION

 

The right of public access to criminal trials and records is fundamental to the

operation of our criminal justice system The fundamental policy interests of

transparency openness and fairness in criminal proceedings mandate disclosure to Mr

Chesley not only as member of the public but because the accounting records in

question could fundamentally affect the question of whether Mr Chesley was deprived

of his due process rights in his disciplinary case prosecuted by the Kentucky Bar

Association Bar Counsel was terminated mere week after the accounting was

rendered to the United States Attorney which raises serious questions about the

correlation of the accounting to the termination and whether the accounting discloses

conflict of interests that would have required Bar Counsel to recuse in Mr Chesleys

disciplinary case or in any other matter stemming from Guard

 

WHEREFORE Movant Stanley Chesley by counsel respectfully requests

that the Court grant his motion and enter the tendered proposed Order directing the

United States to provide his counsel with properly redacted copy of the accounting

filed by Angela Ford upon entry of an agreed protective order

 

Respectfully submitted

James Gary

Weber Rose PSC

471 West Main Street

Suite 400

Louisville Kentucky 40202

Phone 502 589-2200

Fax 502 589-3400

E-mail iqarvweberandrose.com

Counsel for Stanley Chesley

ii

Case 207-cr-00039-DCR Doc 1318 Filed 12/22/Il Page 12 of 12- Page ID

24142

CERTIFICATE OF SERVICE

HEREBY CERTIFY that on December 21 2011 conventionally filed via

overnight courier the foregoing with the Clerk of the Court and personally served all

parties and persons of record by placing copy of same in the Mail postage

prepaid and addressed to

Kenyon Meyer Esq

Stephen Mattingly Esq

Dinsmore Shohl LLP

101 Street

Suite 2500

Louisville KY 40202

Counsel for Angela Ford

Kerry Harvey Esq

United States Attorney

By Cheryl Morgan Esq

Assistant United States Attorney

260 Vine Street Suite 300

Lexington KY 40507

Counsel for United States of America

Wade Thomas Napier Esq

Assistant United States Attorney

260 Vine Street Suite 300

Lexington KY 40507

Counsel for United States of America

Dennis Alerding Esq

Alerding Law Office

303 Greenup Street

Suite 300

Covington KY 41011

Counsel for Shirley Cunningham Jr

Louis Sirkin Esq

Jennifer Kinsley Esq

Sirkin Kinsley

810 Sycamore Street Floor

Cincinnati OH 45202

Counsel for William Gal/ion

James Gary

Counsel for Stanley Chesley Esq

 

News release reported where KBA denies open-records request by Chesley.

Bar association denies request for information

 

CINCINNATI.Com

The Kentucky Bar Association has denied an open records request from The

Enqufrer asking for the reason for the sudden departure of its chief counsei

interim Chief Bar Counsel Jay Garrett cited 1991 attorney generals opinion stating

the association isnt subject to the Open Records Act in letter denying the

newspapers request

 

The opinion states that the association Is governed by the Kentucky Supreme Court

and receives no tax dollars The association operates as nonprofit and is

funded through mandatory membership fees for lawyers totaling $3.8 million

annually

 

Follow NKY news on Twitter and on

Facebook

 

Linda Gosneil Its chief ethics prosecutor was paid $118500 per year and had

been with the organization since January 2002

 

Her tenure included the years the association struggled to build cases to

disbar Cincinnati lawyer Stan Chesley and discipline Independence lawyer Eric Deters

Both disciplinary actions are pending before the state Supreme Court

 

Chesley motion for clarification to Federal Court

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

AT COVINGTON

UNITED STATES OF AMERICA

Plaintiff

Case No 207-CR-00039-DCR

ELECTRONICALLY FILED

WILLIAM GALLION et

Defendants

 

MOTION FOR RECONSIDERATION OR CLARIFICATION

 

May it please the Court Based upon the Motion filed by the U.S Attorney and the correspondence with Angela Ford attached as exhibits to that Motion counsel for Mr Chesley understood that the accounting filed by Ms Ford identified by name the attorneys with whom she shared fees

 

The Courts Opinion could be read as stating that the accounting does not contain the names of any lawyers other than Ford but names only banks If so the question remains whether any of the accounts are accounts of lawyers other than Ms Ford Because Mr Chesley is seeking to obtain discovery in other forums of potential conflicts of interest between lawyers collecting on the Abbott judgment and the Office of Bar Counsel that information would be very significant and could be disclosed without implicating 18 USC 3664d4

 

If the accounting contains the names of attorneys Movant respectfully requests the Court to reconsider its decision for the reasons set forth below If the Court declines to reconsider its decision

 

Movant respectfully requests that the Courts Opinion be clarified to state

unambiguously whether or not the accounting contained the names of the lawyers so that there is clear record for appellate review

 

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24179

 

The governments Motion specifically says While the distribution grids show for

example that Ford collected $13277216.00 in legal fees no information was provided to the government regarding the continued existence of these funds or their location 1283 pp 3-

This statement refers to the correspondence attached as exhibits to the Motion For example in the February 16 2011 letter to Ms Ford the Assistant United States Attorneys referred to Ms Fords fee sharing agreements (ruling) stating that it is essential that the government be given complete accounting of all funds distributed pursuant to fee agreements to DN 1283 This statement was repeated in March 16 2011 e-mail to Ms Ford to DN 1283

 

As we indicated the government must have complete accounting of all funds

distributed pursuant to fee agreements Again in March 23 2011 letter to Ms Ford

the Government requests complete accounting from your office regarding all funds

distributed pursuant to fee agreements to DN 1283

 

That letter went on to say ..

 

Primarily we need to know the status of funds collected pursuant to your contingent fee

agreements Id

 

These statements by the Assistant United States Attorneys would seem to refer to Ms

Fords statements quoted by the news media that she had retained $13 million as legal fees under her contingency fee agreements and that she had disbursed some of those funds to co-counsel ‘’

 

For example in an article published on September 2009 the reporter wrote that Ford has

been paid about $7.5 million so far although part of that has gone to other lawyers who

assisted her Andrew Wolfson Attorney toppled diet-drug case Goliaths THE LOUISVILLE COURIER-JOURNAL Sept 2009 at http//www.cuurier-juurnal .com/article/20090907/news50

909080301 /attomey-toppled-diet-drug-case-Golith emphasis added

 

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24180

 

Indeed in her Objection to the governments Motion Ford said the specific target of

the United States motion amounts paid to Ford and other attorneys 1286

18 emphasis added

 

The foregoing explains why the Reply filed on January for the Movant stated that

information Mr Chesley seeks is the identity of the lawyers to whom Ms Ford has distributed funds as legal fees and the amounts distributed to those lawyers The remainder of her accounting may be redacted or otherwise withheld from production to Mr Chesley if it impacts anyones privacy 1324 p.1

 

However the Court and counsel seem to be saying although it is not entirely clear to

counsel for Movant that the names of Ms Fords co-counsel who received payments from her are not included in the accounting Ms Ford rendered to the United States Attorney

 

For example the Memorandum Opinion and Order states that Ms Ford is correct that the

accounting would not provide Chesley with the information he is seeking to obtain 1325

The Court seems to be referring to the Response filed for the United States which

opposed intervention because disclosure of the accounting would not assist Movant for the purpose stated in his motion 1323 The Response filed by Ford merely states

obliquely that the accounting initially filed by Ford and disclosed to the government in early November contained the names of banks 1322

 

The question whether the other attorneys names are included in the accounting is highly

relevant to this Courts reliance upon 18 U.S.C 3664d4 If the accounting contains only an accounting of the funds collected which have not been distributed to anyone and remain on hand for distribution to the victims together with related banking information that would explain the

 

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24181

 

Courts reliance upon 3664d4.1 However if the accounting identifies the lawyers to whom Ms Ford has distributed funds collected in execution of the Abbott judgment then Movant respectfully suggests that 3664d4 is inapplicable and that the Court should reconsider its Opinion Section 3664a-d relate solely to the portion of the presentence report that contains information sufficient for the court to exercise its discretion in fashioning restitution order 18 U.S.C 3664a

 

The report shall include to the extent practicable complete accounting

of the losses to each victim any restitution owed pursuant to plea agreement and information relating to the economic circumstances of each defendant Section 3664d2Avi requires the probation officer to notify the victims of the opportunity of the victim to file with the probation officer separate affidavit relating to the amount of the victims losses subject to restitution Section 3664d3 requires the defendant to prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant including complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested It is this information pertaining to the victims losses and the defendants assets to which 3664d4 applies when it provides..

 

The privacy of any records filed or testimony heard pursuant to this section

3664 shall be maintained to the greatest extent possible and such records may

be filed or testimony heard in camera

Section 3664d4 emphasis added

 

In the matter presently before the Court the funds were collected by execution upon

judgment rendered by Kentucky state court in the Abbott civil proceeding The lawyers paid themselves the amount to which they deemed they were entitled pursuant to their contingency Movant notes that the Order entered on June 29 2011 appears to be more narrowly drawn than the governments Motion by ordering Ms Ford to provide full and complete accounting of all funds collected by her in the civil action and not distributed to victims 1284.1

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24182

 

fee contracts with their clients Information pertaining to the payments made by the lawyers to themselves from funds collected in execution upon civil judgment is simply not within the contemplation of 3664d4 Accordingly if the lawyers names are contained within the accounting rendered by Ms Ford to the United States 3664d4 does not provide basis for overcoming the public’s First Amendment right to access the court records In sum if the names of the lawyers to whom Ms Ford paid legal fees are included in the accounting then the Court should reconsider its decision If the Court declines to reconsider its decision the Court should clarify its Opinion to expressly say whether the accounting includes those lawyers names in order to provide clear record for appellate review Such clarification would be consistent with the requirement that an order sealing court records be accompanied by findings of fact made with particularity demonstrating why the interests are deemed sufficient to override the publics right to know See e.g Press-Enterprise Co Superior Court of Caltfornia Riverside County 464 U.S 501 510 1984 Brown Williamson Tobacco Corp Fed Trade Commn 710 F.2d 1165 1176 6th Cir 1983

 

Respectfully submitted

Is/ Sheryl Snyder

Sheryl Snyder

Frost Brown Todd LLC

400 West Market St 32nd Floor

Louisville KY 40202

502 589-5400/502 581-1087

ssnyderthtlaw.com

 

James Gary

Weber Rose PSC

471 Main St Suite 400

Louisville KY 40202

502 589-22001502 589-3400

garyZIweberandrose.com

Counsel for Stanley Chesley

 

Case 207-cr-00039-DCR Doc 1326 Filed 01/09/12 Page of 6- Page ID 24183

 

CERTIFICATE OF SERVICE

hereby certify that on January 2012 electronically filed the foregoing Motion for

Reconsideration or Clarification with the Clerk of the Court by using the CM/ECF system which will send notice of electronic filing to registered ECF participants

Is Sheryl Snyder Counsel for Stanley Chesley

LOULibraryOl 18087.0571145 1192294v3

***************************

Order of Judge Reeves describing what accounting has been provided, and denying further clarification of prior order as requested by Chesley.

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION

at Covington

UNITED STATES OF AMERICA

Plaintiff Criminal Action No 07-39-DCR

WILLIAM GALLION et al ORDER

Defendants

 

On July 11 2011 Angela Ford by counsel filed document captioned Accounting

Filed with the Court under Seal No 1289 The information provided in this document

was actually less than its heading would indicate The document contains four paragraphs in which Fords counsel Kenyon Meyer of the firm Dinsmore Shohl LLP incorporates information previously filed in the record of this proceeding acknowledges that certain sums collected in the state action captioned Abbott et cxl Chesley et Commonwealth of Kentucky Boone Circuit Court Civil Action No 05-CI-00436 are being held in escrow for the benefit of the Abbott plaintiffs and iii identifies the generic names of five banks where remaining funds are located No other account information is provided

 

Additionally counsel for Ford acknowledges that portion of the funds paid to his client

by the Abbott plaintiffs have been paid to third parties including but not limited to other

attorneys pursuant to fee agreements No fee agreements have been submitted and the identities of attorneys who may have received compensation pursuant to the referenced fee agreements have not been identified

 

While movant Chesley might speculate that this indicates or in some way proves some sinister action by Ford taken in conjunction with former counsel for the Kentucky Bar Association the Court does not engage in such (…) speculation Quite simply the document which is the subject of the current motion does not provide any further information and former counsel for the IKBA has not been identified or referenced in any way

 

Accordingly it is hereby ORDERED that the Motion for Reconsideration or Clarification No 1326 is DENIED

 

This 101h day of January- 20t2

Signed By

(Judge) Danny C.Reeves

*******************************

Interrogatories submitted to Boone Circuit Court with motion to allow Chesley to submit them….

COMMONWEALTH OF KENTUCKY

BOONE COUNTY CIRCUIT COURT

54Th JUDICIAL DISTRICT

CASE NO 05-CI-00436

MILDRED ABBOTT et al PLAINTIFFS

STANLEY CHESLEY et al DEFENDANTS

 

DEFENDANT STANLEY CHESLEYS FIRST SET OF INTERROGATORIES AND

REQUESTS FOR ADMISSION TO PLAINTIFFS

 

Pursuant to CR 33 and 36 of the Kentucky Rules of Civil Procedure Plaintiff Stanley

Chesley submits the following Interrogatories and Requests for Admission Discovery

Requests to Plaintiffs You are to serve your answers and responses to these Discovery

Requests within 30 days from the date they were served upon you

In answering these Discovery Requests you are to divulge all information that is within

the knowledge possession or control of you your attorneys or your agents or that may be reasonably ascertained by you or them You are requested to supplement your initial answers to these Discovery Requests after service of your answers if you ascertain or acquire after your first answers any information that falls within the scope of these Discovery Request or if events within the scope of these Discovery Requests occur after service of your answers

 

INTERROGATORIES (excerpts from interrogatories)

INTERROGATORY Identify the total amount of all funds or property collected

by you or your counsel in satisfaction of the judgment previously rendered in this litigation against the various Defendants

 

INTERROGATORY Identify the total amount of funds distributed to Plaintiffs

in this action

 

INTERROGATORY Identify the attorney fees paid to your counsel Angela

Ford from the finds collected in satisfaction of the judgment rendered against Defendants Gallion and Cunningham in this litigation

 

INTERROGATORY Identify the attorney fees paid to counsel other than

Angela Ford by you or Angela Ford either directly or indirectly through any third party for

work in this litigation

 

INTERROGATORY List the name address and telephone number of each

lawyer and each law firm that has received any payment of money as legal fees for work collecting on the judgment whether that money was received from Angela Ford pursuant to fee sharing agreement or was withheld directly by the lawyer or law firm from finds the lawyer or law firm collected or otherwise In addition please identify the total amount of legal fees received by each lawyer or law firm identified

 

INTERROGATORY Please fully explain your Response to each Request for

Admission that is not admitted or unequivocally denied

 

REQUESTS FOR ADMISSION

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to Barbara Bonar

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to the law firm Dahlenburg

Bonar or any law firm in which Barbara Bonar is partner member principal or otherwise

associated

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to Jane Dyche

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to the Dyche Law Office or any law firm in which Jane Dyche is partner member principal or otherwise associated

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to Leslie Rosenbaum

 

REQUEST Admit or deny that portion of the funds collected by you or your

counsel either directly or indirectly through any third party in satisfaction of the judgment

previously rendered in this litigation was paid as legal fee to the law firm Rosenbaum

Rosenbaum or any law firm in which Leslie Rosenbaum is partner member principal or

otherwise associated

 

Respectfully submitted

KBA 66290

ssnyd wcom

Griffin Terry Sumner KBA 85799

gsumner@ifbtlaw.com

Frost Brown Todd LLC

400 West Market St 32nd Floor

Louisville ICY 40202

502 589-5400

502 581-1087

James

 

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