HON. ANN OLDFATHER, CANDIDATE FOR THE KBA BOARD OF GOVERNORS RESPONDS BOLDLY TO LAWREADER’s QUESTIONNAIRE – HON. AMY CUBBAGE REFUSES TO ANSWER … THEREBY ADVOCATING MORE SECRECY OF KBA CONDUCT

HON. ANN OLDFATHER, CANDIDATE FOR THE KBA BOARD OF GOVERNORS RESPONDS BOLDLY TO LAWREADER’s QUESTIONNAIRE – HON. AMY CUBBAGE REFUSES TO ANSWER … THEREBY ADVOCATING MORE SECRECY OF KBA CONDUCT.

By LawReader Editor Stan Billingsley – Dec. 18, 2012

The two candidates for the KBA Board of Governors from Jefferson County have responded to the LawReader questionnaire regarding issues that may come before them as KBA Board Members.
The two candidates from Jefferson County are Ann Oldfather and Amy D. Cubbage.

Ms. Oldfield answered the questionnaire and explained her answers or non-answers with commentary. You learn that Ms. Oldfield is not afraid of transparency in the actions of the KBA Board. She is in favor of the KBA releasing information about the KBA’s finances. She seeks debate on some issues, but does not appear to be intimidated by the KBA leaders.
We are sorry to report that Ms. Amy Cubbage did not answer the questionnaire. She sent a letter which says that:

“One of the Board’s responsibilities is to sit in judgment on attorney disciplinary cases under SCR 3.370. Thus, I am sure you understand why I cannot comment on the issues raised in the questionnaire submitted to me.”

(LawReader Note: Ms. Cubbage, …sorry but we do not understand why you are hiding behind that old excuse of “confidentiality..)

LawReader believes the job of the Board of Governors is much broader than sitting on discipline cases. There are many administrative functions of the Board and these are ignored by Ms. Cubbage.
Ms. Cubbage excuse for not answering our questions indicates a lack of grasp of the duties of the Board of Governors. Or perhaps it shows her devotion to the practice of current members of the Board who hide their actions behind claims of “confidentiality”. If Ms. Cubbage won’t answer any question before the election, it is doubtful that she will answer any questions after her election.
We appreciate the responses of both candidates, and provide their responses below.

First we submit the response by Ann B. Oldfather.
QUESTIONAIRE
LAWREADER SUBMITS QUESTIONAIRE FOR NOMINEES FOR THE KBA BOARD OF GOVERNORS – DEC. 8. 2012
The following questionnaire will be submitted to all candidates for election as members of the Board of Governors in the December 2012 Board of Governors election. The answers will be published on LawReader.com. not later than December 20th. We invite any comments of one page or less, which you wish to be published on LawReader concerning your candidacy.
If you choose not to respond to this questionnaire, that is your right. However we will point out to our readers in the legal profession that you apparently side with the current Board Members who have a history of refusing to provide access to public records, and refusing to reveal how much the KBA spends on hiring outside counsel when they have nine full time lawyers on their staff.

1) Were you a member of the Board of Governors when the Board authorized the hiring of outside counsel to defend the KBA against the Federal Civil Rights action seeking a ruling that SCR 3.130 (8.2), (which limits the free speech of attorneys), was unconstitutional, and which cost the KBA approximately $400,000 in legal fees and court costs?
Yes____ No___X__

1.a. In the Senator John M. Berry /ACLU case, in which he the Bar Counsel investigated Berry for having written a letter to the Legislative Ethics Commission critical of how they conducted a hearing involving Sen. David Williams. I would have voted to repeal the rule in SCR 3.130 (8.2) which limits the free speech of attorneys.
Answer: I would like to hear debate on this issue as the question is stated, it doesn’t present a prima facie case against Berry. Rule 8.2 prohibits known false hoods and reckless disregard for the truth, a high bar and a seemingly important ethical obligation for an attorney on any matter.

Yes___ No____

2) The last two KBA Presidents have declined to comply with requests for disclosure of the expenditures made by the Board of Governors to hire outside counsel in the last two years. One large law firm, has a member on the KBA Board of Governors, has done quite well in receiving large fees from the KBA Board. Are you in favor of full public disclosure of all KBA expenditures?
Yes__X_ No____
3) Would you support a change in the Supreme Court Rules which would:
a. Require that all ethics investigations and prosecutions be completed within one year consistent with the Speedy Trial rule in criminal prosecutions.
Yes _X___ No____
b. Adopt a statute of limitations against the Bar Counsel bringing any ethics prosecution more than five years old, if it did not involve a felony offense, or financial loss to the client in excess of $5000.
Yes ____ No____ Answer: I don’t understand the question. I do , however question the notion that Bar Counsel should prosecute any claims of misconduct minor as alleged if it is filed 5 years after the fact.
c. Would you repeal the SCR rule which allows the Bar Counsel to secretly dismiss any ethics complaint without having to report the dismissal to the Inquiry Commission, The Board, or the Supreme Court.
Yes __X__ No____
d. Would you support repeal of the SCR rule which currently allows the Bar Counsel to deny reinstatement of any attorney who has served their sanction of suspension imposed by the Supreme Court. Would you support a reform taking away from the prosecutor the power to increase the sanction by merely writing a letter. The Bar Counsel currently can overrule the sentence of the Supreme Court and delay reinstatement by merely writing a letter to the Character and Fitness Committee.
Yes _ X__ No____
e. Do you believe that KBA officials when charged with ethics offenses, should receive special treatment denied to lawyers.
Yes ____ No_ X__
f. Would you favor adoption of a Supreme Court Rule which would require the Board of Governors and the Supreme Court to conduct annual administrative review of the Bar Counsel’s Office, regarding conflicts of interest, reasons for excessive delays, reasons for dismissal of all complaints, review claims of excessive prosecution, review workloads, and investigate other administrative issues related to the Bar Counsel’s office?
Yes _ X__ No____
g. Would you favor adoption of a SCR which would allow the Supreme Court Clerk to assume the duties of the Disciplinary Clerk to select Trial Commissioners completely at random from the list of nominees submitted by the Supreme Court, and without ex parte communication with the Bar Counsel’s office or Board Members?
Yes __ X__ No____ Additional answer: But other options may exist, too. The goals are worthy and appropriate.
h. Would you favor adoption of a SCR which would make it an ethical violation for any Board member, member of the Bar Counsel’s Office, Inquiry Commission, or Trial Commissioner to fail to remove themselves from a pending ethics prosecution, when they, or a member of their family, or law firm would financially benefit from the outcome of any ethics prosecution?
Yes __ X__ No____
i. Would you favor adoption of a SCR which would mandate that all plea bargains made by the Bar Counsel’s office are contracts, which must be honored by the Bar Counsel’s office?
Yes ____ No____ Answer: Need more information, and to hear debate. I am not confortable that I fully understand the issues.
(LawReader comment: Question “i” above, relates to a case where the KBA made a plea bargain with an attorney on any ethics complaint, and subsequently asked for a greater penalty then they had promised the attorney for his pleas.)
j. Would you favor the adoption of a SCR rule which would allow the U.S. Attorney, the County Attorney and the Commonwealth Attorney, to demand an Accounting and publication of all disbursements of funds to clients and lawyers, paid out in class action civil cases?
Yes ____ No____ Answer: See answer to i. Professionally I can see significant problems with this but the Gallion, Chesley/et al tale is a cautionary one that raises issues of real concern that need addressing.
k. Do you believe that the SCR rule which requires confidentiality of ethics investigations and prosecutions, applies to administrative actions of the KBA, not directly related to a pending ethics investigation or prosecution?
Yes ____ No__ X__
l. Would you favor a rule allowing defendant attorneys appearing before the Trial Commissioner and the Board of Governors to make a recording of their hearing?
Yes __ X__ No____
n. Would you favor a rule which would require all ethics rulings and orders by the Board of Governors to be accessible to the public? This record would show votes of Board of Governors members on all formal actions.
Yes __ X__ No____ Additional answer: I have long advocated for an open disciplinary process.
o. Would you favor a rules change that would allow election of the KBA President directly by all members of the Kentucky Bar Association.
Yes ____ No____ Answer: See answer to “I” There may be good reasons for the current process and I need to hear debate.
**************

THE LETTER OF NON-RESPONSE OF AMY CUBBAGE
Re: Board of Governors Questionnaire

Dear Mr. Billingsley:

Thank you for your interest in the Kentucky Bar Board of Governors’ election. As you know, the KBA Board of Governors was established by the Kentucky Supreme Court, pursuant to SCR 3.070, as the governing body of the KBA and agent of the Supreme Court to administer its Rules. One of the Board’s responsibilities is to sit in judgment on attorney disciplinary cases under SCR 3.370. Thus, I am sure you understand why I cannot comment on the issues raised in the questionnaire submitted to me. (EMPHASIS ADDED BY LAWREADER)

As to your request for my curriculum vitea, I have attached a copy. As you can see I am amply qualified for Board membership. I have been a member of the KBA since 1997. Over the years, I have volunteered my time for various committees and projects on behalf of the KBA. Most recently, I have served as a member of the Attorney Advertising commission from 2005 to 2011. I was also a member of the KBA Task Force on Attorney Advertising in 2009, which resulted in multiple amendments to the Supreme Court Rules. I am a regular CLE Speaker for the Kentucky Bar Association, speaking frequently at both Kentucky Law Update and the New Lawyers Program on ethics issues. I believe that all of these experiences demonstrate my interest and commitment to serving members of the Bar through KBA activity.
Again, thank you for your interest. I look forward to the possibility of representing the 4th. Supreme Court District on the KBA Board of Governors.

Sincerely,

Amy D. Cubbage

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