KBA PRESIDENT INCOMPLETELY ANSWERS LAWREADER REQUEST FOR FUNDING INFO. RE: OUTSIDE COUNSEL FUNDING

In April of 2012 LawReader asked the President of the KBA to provide information about the expenditures of the KBA for outside counsel. Then President Maggie Keane never responded to LawReader’s request. The new President of the KBA took office in July 2012. We wrote him and he provided the following response (see below).

President Myers was apparently informed that his predecessor had given this information to LawReader. We never received such information.
We have reviewed President Myers letter and while we appreciate his courtesy we find his response to be incomplete in a significant manner.

President Myers reported to the Lexington Herald Leader that the KBA has expended a sum in the “low 200,000′s” to pay the law firm of Stites & Harbison for their defense of the KBA in the John M. Berry Jr./ACLU lawsuit regarding the attempt by the Inquiry Commission to chill Berry’s right of free speech by the issuance of a “warning letter”. The Sixth Circuit Court of Appeals found in favor of Berry and the ACLU and awared them court costs and attorney fees of some $191,000. So the admission by President Myers that the KBA had paid (or is liable for) the Stites and Harbison fee admits that this attempt to limit an attorneys free speech rights has cost the KBA close to $400,000. No mention is made by President Myers to the Stites and Harbison fee in his following letter to LawReader.

President Myers told the Herald Leader that they had insurance coverage for this $400,000 legal bill. No explanation is given as to any deductible in the insurance policy that will have to be covered by the KBA. No mention is made of the increased insurance premiums that will be sure to follow by the award against the KBA. The licensed attorneys in Kentucky will have to pay any deductible and any increased premiums.

President Myers states in his letter that the Board of Governors authorizes the hiring of outside counsel. President Myers was on the Board of Governors when the decision to hire outside counsel, and the decision to fund this attempt to limit attorneys free speech rights was made. President Myers in his Herald Leader story pointed the blame at the Kentucky Supreme Court…”the Supreme Court appoints the members of the Inquiry Commission”. This statement does not mention the fact that the Board of Governors has the power to hire and fire the Bar Counsel office attorneys. The Bar Counsel prepared charges against Berry, prosecuted the charges, and was present when the Inquiry Commission found Berry guilty, chose to dismiss the complaint but still decided to issue a “warning letter”. The Bar Counsel is the instrument of the Board of Governors. The Supreme Court merely appoints a number of people to serve on the Inquiry Commission but have no control over the conduct of the Inquiry Commission, and are not present when the Inquiry Commission considers the charges filed by the Bar Counsel.

President Myers also suggests that the information we have requested is readily available. We have searched the KBA website and have found a budget and audit report, but that report does not state anything about outside attorney fees. If someone can direct us to this information we will be glad to report its existence. Our request for financial information concernng the funding by the KBA of the Berry appeal, fails to mention how much the KBA paid Stites and Harbison in 2009 and 2010…the following letter from President Myers to LaweReader only discusses fees paid in 2011 and 2012. We also recall that earlier this year the KBA asked for an additional $100,000 funding for the Bar Counsel’s office. What was that money needed for?

We wish the best to President Myers as he starts his one year term as KBA President. We hope that he will take time to weigh the significance of the Sixth Circuit’s ruling regarding attorneys free speech rights. The ruling of the Sixth Circuit does not repeal this rule used by the KBA to prosecute Berry, it merely found that in the facts “as applied” to the Berry case were unconstitutional. This means that President Myers and the Board of Governors can in the future see this same rule cited against an attorney. Will President Myers call on the Supreme Court to change this rule? Will President Myers announce a strong policy for the KBA to respect free speech rights of lawyers? Will President Myers take the opportunity to make the entire KBA more transparent? Will President Myers take the attitude that he represents the Board of Governors or will he recognize that he represents all 17,200 Kentucky lawyers? Will President Myers conduct a review of the conduct of the KBA which lead to these charges even being filed against Berry and will the need for accountability of the Bar Counsel’s office be recognized. We have heard reports that the KBA is looking for a new Bar Counsel and have written a list of job requirements. Will those job requirements provide for accountability to the Board of Govenors and to the KBA President? Will President Myers do anything to limit the heavy curtain of secrecy which hides most KBA actions?

The message sent to the KBA and other state Bar Associations by the Sixth Circuit Court of Appeals is that lawyers have constitutional rights, and that a failure of State Bar Associations to respect those rights can be a foolish and costly endeavor. The response LawReader has received from attorneys across the state concerning these issues is that the KBA is hostile to most lawyers. The Berry ruling of the Sixth Circuit has become a national issue and is discussed in newspapers and law journals across the nation. This provides President Myers the opportunity to redirect the anti-attorney direction the KBA has taken over the last few years.

THE MYER’S LETTER TO LAWREADER -

KENTUCKY BAR ASSOCIATION
514 WEST MAIN STREET
FRANKFORT, KENTUCKY 40601 -1812
(502) 564-3795
FAX (502) 564-3225
www.kv bal~o rg

President
Douglas Myers
Phone: (270) 886-6800
Fax : (270) 88S-71D

Reply to:
Post Office Box 1065
Hopkinsville, K Y 42241-1 06~
E–mail: dmyers@dmlfirm

August 29, 2012
Judge Stan Billingsley
314 7th Street
Carrollton, Kentucky 41008
RE: Kentucky Bar Association
Dear Judge Billingsley:

VIA E-MAIL

Thank you for your letter of July 19, 2012. In your letter, you mentioned that you had
written to Margaret Keane, my predecessor as President of the Kentucky Bar Association
(KBA), concerning the extent of KBA funds which were being spent on outside counsel. It is my
understanding that Ms. Keane had replied to you on this matter. At any rate, I would like to
address the issues you have raised in your letter.
First, you make the statement that Bar Counsel’s expenditure is $1,700,000.00, Being
precise, “Disciplinary and Unauthorized Practices” spent $1,753,745.00 in fiscal year ending
June 30, 2011. This includes the operation of the entire disciplinary system as well as
management of unauthorized practices activity. Professional fees within this amount were
$96,659.00. By far, the largest portion of these professional fees were spent for court reporters
and Sheriff’s service fees. Outside counsel is, on very rare occasions, employed in specific
cases only when the Bar Counsel office may have a conflict of interest.
The KBA does not use Bar Counsel’s office for representation in litigation in which the
KBA may be involved as a party. In these cases, the KBA employs outside counsel rather than
using the attorneys within the office of Bar Counsel whose role is to prosecute discipline cases
before the KBA Employment of outside counsel in these cases is approved by the Board of
Governors. In the fiscal year ending June 30, 2011, outside professional services were incurred
in the amount of $58,348.00, This represented fees to lawyers involved in providing legal
counsel in non-litigation matters and to counsel in civil suits in which the KBA or related entities
were named as a party. For the fiscal year ending June 30, 2012, the amount for outside
services is $58,292.73 (This amount has not yet been audited).

JUDGE STAN BILLINGSLY
August 29, 2012
Page Two

You also made the comment in your letter of July 19, 2012, that you would think that
financial information about the KBA should not be considered confidential. As you have been
advised in the past, KBA budgets and audit reports are published and available, not only to
members, but to the general public.
Thank you again for your interests in these matters.

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