BOARD OF GOVERNORS MEMBER MICKEY MCQUIRE ANSWERS LAWREADER QUESTIONAIRE

ANSWERS TO QUESTIONNAIRE by BOARD MEMBER MICKEY MCQUIRE

1. I was a member of the Board of Governors during the Berry litigation.

1.a. I cannot personally speak for anybody else, but I believe that free speech
should not be limited by the Kentucky Bar Association.

2. I really have no knowledge of what any KBA President did or did not do or
what large law firm is referred to, but I am in favor of public disclosures of
all KBA expenditures. I know of no reason for secrecy.

3.a. I cannot speak for anybody else, but I think that would be a good idea except in some cases. There are cases where there is pending litigation or
criminal cases that need to be over before an ethics investigation can be
completed. I think in those situations there is reason that a case should
be held in abeyance until after the courts have finished with their work.

b. This is the first I have heard of that proposal, but it sounds initially like a
good idea. I think it should be followed up on. There is presently no
limitation at this time, and it’s easy to see why memories and records would
not necessarily be available on an 8- or 9-year-old matter dealing with a
small amount.

I would like to hear all sides, but on first blush your proposal of a 5-year-old
limitation on matters under $5,000 sounds reasonable to me. I do not speak
for anybody else.

c. I believe there needs to be reasonable supervision of Bar Counsel. I am
not for sure how Bar Counsel can be supervised under our present system where OBC handles so many duties of which we are not privileged to
at the Board of Governors. Secrecy rules were originally put in place to protect attorneys from unnecessary public criticism by frivolous complaints.
However, sometimes the same secrecy rules limit us from having
sufficient knowledge to properly oversee the activity of Bar Counsel.

The rules seem inconsistent in that the Board of Governors hire Bar Counsel
but are limited as to the knowledge of what Bar Counsel does, what decisions are made or the ability to question those decisions.

I have personally heard complaints from attorneys in the 7th Supreme Court District that after a complaint is filed against them and they have filed an answer, sometimes more than a year goes by before anything happens. I have spoken to the newly appointed member of the Inquiry Commission, John Porter, who replaced Mike Schmidt, and asked him if the Inquiry Commission could inquire about complaints that have been made which have not been brought to the Inquiry Commission that are more than six months old. More work needs to be done in this area with respect to maintaining the integrity of the system, the secrecy contemplated to protect an attorney’s privacy and the duty to supervise and evaluate the work of Bar Counsel.

d. I believe there should be some change in the rule. I am sure other people may have better ideas than me, but I would propose that if Bar Counsel had a reason for denying reinstatement, such as having not complied with the terms of suspension, they be able to file a motion with the Board of Governors to continue the suspension that would expire if not voted to approve by the Board of Governors at the next regularly scheduled meeting.

There may be better ideas than this, but perhaps this is a starting point.

e. No, and I am unaware they have.

f. I think an annual administrative review would be an excellent idea. No one
should have unlimited power that is unsupervised and concealed from any oversite. An annual review as sanctioned by the Supreme Court would be excellent.

g. I have heard no discussion on this point, but I would not oppose such a change in the rule. I would imagine the Supreme Court Clerk may not want
these duties, but since they appoint the Trial Commissioners maybe in fact it would be a good idea.

h. I understand that is the rule.

i. Yes.

j. I could certainly understand a party’s need for privacy, but I have no problem with allowing any prosecutor to ask for records of disbursements and I believe they have that subpoena power already.

k. I believe that administrative actions of the KBA would require the same confidentiality as administrative actions of the Administrative Office of the
Courts.

l. I don’t see that it makes much difference because recordings are made and
are supposed to be available, as in a court of law we are not normally
allowed to make our own recordings.

m. As long as an official recording is made and available on request, I think that is satisfactory. I do believe the press, when present, should be allowed to record so their report is accurate.

n. We make very hard decisions and I can understand some people may not want their votes disclosed. I believe our work is very hard and difficult, but
I am also aware that the Supreme Court of Kentucky makes hard decisions
and they put their name on them. Therefore, I would have no
objections to the public having access of how I voted. I cannot speak for
other people.

o. The KBA President is elected by all members of the Kentucky Bar Association. The process is you run for Vice-President, move into
President-Elect, and then become President. The chairs allow a time to
acclimate and prepare for the job. I like the idea that we have a President-
Elect that has a whole year to prepare himself. The President-Elect is
in fact elected by all the members of the Kentucky Bar Association. I
would encourage more people to become involved and knowledgeable
of their vote for President-Elect, Vice-President, and for members of the Board of Governors from each Supreme Court District.

Additional Comments

When campaigning to be elected to the Board of Governors, I have found that many attorneys have great distrust of our association. I believe the distrust is somewhat our own fault and that more public disclosure, transparency and openness would not harm the association. In the two years I have served on the board, I am impressed with the hard work the board members put in reading volumes and volumes of material to prepare for meetings. I have personally seen board members literally spend days of their own time researching, preparing and analyzing transcripts so that matters can be fully discussed. While there are many rules that I would like to see changed, modified or improved, I am proud to say the Board of Governors as a group takes their work very seriously and decides each case on the merits, as is clearly evidenced by decisions we have made finding respondents both guilty and not guilty of numerous and complex charges. I believe each member takes their votes very seriously.

In addition I would like to add that I am not prejudging any issue and would always be open to viewing other ideas or facts that may affect my opinion.

Thank you for an opportunity to provide information.

Sincerely,

Earl M. McGuire
Attorney at Law

EMM/cb

PROPOSED QUESTIONAIRE FOR NOMINEES OF BOARD OF GOVERNORS

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_____

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.
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___ 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 ____ 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____

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 ____ 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 ____ No____

e. Do you believe that KBA officials when charged with ethics offenses, should receive special treatment denied to lawyers.
Yes ____ No____

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 ____ 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 ____ No____

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 ____ 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____

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____

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____

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 ____ 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 ____ No____

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____

QUESTIONARIE BY LAWREADER:

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