the associated press
TALLAHASSEE, Fla. — A Florida’s man bid to obtain a law license despite questions about his immigration status could be coming to an end.
The U.S. Department of Justice this week filed a legal brief arguing that the state should deny a law license to anyone who enters or remains in the country without legal permission.
Attorneys for the federal government made the filing at the request of the Florida Supreme Court. Justices last month asked whether or not federal law precludes the court’s admission of an undocumented immigrant to the Florida Bar.
The court’s review was requested by Jose Godinez-Samperio. He came to the U.S. with his parents on visitors’ visas when he was 9 years old, but the family never returned to Mexico.
He graduated from New College in Florida, earned a law degree from Florida State University and already has passed the Florida bar examination.
In its filing, attorneys for the federal government argued that professional licenses constitute a public benefit that U.S. law prohibits to someone who has entered the country illegally.
Last October, former American Bar Association president Talbot “Sandy” D’Alemberte – who represents Godinez-Samperio and taught him when he was a law student – argued the federal law doesn’t apply because the Florida Supreme Court is not an “agency.” He also argued the states have a constitutional right to decide who practices law in their courts.
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the associated press
Kentucky Bar Ass’n v. Edwards,Terry Ray 377 S.W.3d 557 (Ky., 2012) September 20, 2012
Emma Frances Kottmyer was adjudged to be incompetent to handle her finances, having been diagnosed with dementia and early-onset Alzheimer’s disease. The district court appointed Edwards, who was Kottmyer’s attorney on several occasions for over a decade before the appointment, and Ernest R. Hafley, a Kottmyer family friend, as co-curators of Kottmyer’s financial affairs.
While acting as co-curator, Edwards made several unexplained withdrawals from Kottmyer’s IRA account; sold her home without court approval; and paid himself $20,810 in fees. Edwards wrote checks to himself totaling $78,000, designating these disbursements as loans. During this time, Edwards failed to file the required accounting of Kottmyer’s estate.
II. EDWARDS VIOLATED SCR 3.1301.8(A), SCR 3.1303.4(C), AND SCR 3.1308.3(C).
The Board of Governors properly determined Edwards violated SCR 3.1301.8(a), SCR 3.1303.4(c), and SCR 3.1308.3(c). Edwards admits to these violations in his brief submitted to this Court. We find the Board’s conclusion regarding these charges supported by the record and the law. And we adopt the decision of the Board of Governors for these charges. We agree that Edwards violated the Rules of Professional Conduct by taking funds from the Kottmyer estate while serving as co-curator.
III. A CRIME MUST BE ALLEGED FOR SCR 3.1308.3(B) TO APPLY.
The Board of Governors found Edwards guilty of violating 3.1308.3(b), Count III of the Charge. Edwards now challenges this ruling and the sufficiency of the Charge because of the Inquiry Commission’s failure to state a criminal statute he violated. And Edwards challenges the Board of Governors’ failure to apply the facts to the law and state a crime relevant to his conduct. We agree with Edwards.
B. Count III Is Insufficient Because It Asserts No Illegality.
The Board of Governors found Edwards guilty of violating SCR 3.1308.3(b) because of his unauthorized taking of money from Kottmyer’s account for his personal use. Because of Edwards’s inaction before the Inquiry Commission, this case became a default case; and the record was not developed as it would have been had there been a hearing before a Trial Commissioner.
In such cases, the Board of Governors must rely on the Charge issued by the Inquiry Commission when determining the respondent’s guilt. The Charge is critical, especially in default cases. And it should convey enough factual information to support a finding of a violation of the count(s) it asserts.
The Inquiry Commission is required to state the illegal nature of a respondent’s conduct. This comports with the plain language of SCR 3.1308.3(b). The rule reads, It is professional misconduct for a lawyer to: commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Commit, as defined by Black’s Law Dictionary, means, to perpetrate (a crime).
The use of the word commit in SCR 3.1308.3(b) indicates that the respondent’s act must evince an illegality. And to meet the requisite burden of proof, the Inquiry Commission must state what the illegality is.
Without stating an alleged crime encompassing Edwards’s conduct, the Inquiry Commission fails to provide sufficient evidence that Edwards’s act was criminal.
Rather, the Inquiry Commission only alleges that Edwards committed an act but does not identify the crime committed.
In the instant case, Edwards’s conduct certainly appears illegal.
He could have been charged with theft by unlawful taking or possibly theft by failure to make required disposition of property. But the Inquiry Commission did not apply the law to Edwards’s conduct to allege adequately that he committed a criminal act. There was no conclusion of law regarding Edwards’s criminal conduct by the Board of Governors because there was no crime alleged in the Charge.
The KBA argues that the proof provided for Count IV is sufficient to sustain a conclusion of a criminal act under Count III. The evidence for Count III and Count IV may very well be the same, and this is allowable. But the Inquiry Commission must state a crime that Edwards’s actions constitute before a violation of SCR 3.1308.3(b) can stand.
We do not hold that a criminal conviction is required for SCR 3.1308.3(b) to be applicable or even that charges must be filed. The KBA must, only meet a preponderance-of-the-evidence standard, much lower than the beyond-a-reasonable-doubt standard required for a criminal conviction.
We only require a Respondent’s actions to be shown, by a preponderance of the evidence, to fit within a crime under state or federal law. The Board of Governors’ finding of guilt on Count III will be set aside because the Charge was insufficient in regard to that count.
IV. PERMANENT DISBARMENT IS APPROPRIATE.
The Court finds that permanent disbarment is the appropriate sanction for Edwards. We have a duty to safeguard the public’s trust that this Court maintains a bar membership that has the fitness and character to practice law. Clients evince a high level of trust when they hand over control of their money to a lawyer. And Edwards admittedly violated that important trust relationship.
Kentucky Bar Ass’n v. Robinson, 386 S.W.3d 739 (Ky., 2012)
These distinctions between the procedure provided by SCR 3.360(4) and SCR 3.480(2) are of vital importance. While KBA disciplinary proceedings are frequently treated as prosecutorial by the bar, they are not criminal proceedings.
Rather, they are civil disciplinary matters carried out by an agency of this Court.
Bar Counsel seems to conflate disciplinary proceedings with criminal plea bargains or guilty pleas, or civil settlement agreements, whereby the judge maintains a role throughout the negotiation process, including approval of the parties’ agreement.
We caution Bar Counsel not to conflate a Trial Commissioner with a trial court, nor Bar Counsel with a prosecutor. While there are some similarities, the rules indicate that neither is identical in function or authority
The Supreme Court has mandated that the Inquiry Commission actually provide factual information to support their findings of ethical violations.
Ky. Bar Ass’n v. Blum (Ky., 2013) April 25, 2013
9. See SCR 3.190. This is not to be construed as an endorsement of the form of the Charge in this case. We do find it worthwhile to note that the Charge issued here contains fifty-nine numbered paragraphs of factual allegations under the heading of “Count I” and then merely a quote of the rule alleged to have been violated and a general description of the violation under each succeeding count. Although not improper, this Charge would have been clearer had it alleged with specificity the offending statement or action that Blum had made or done in violation of any rule. The Inquiry Commission must “convey enough factual information to support a finding of the violation of the count(s) it asserts.” Kentucky Bar Ass’n v. Edwards, 377 S.W.3d 557, 562 (Ky. 2012).
Ky. Bar Ass’n v. Blum (Ky., 2013)
Finley v. Kentucky Bar Ass’n, 378 S.W.3d 313 (Ky., 2012) September 20, 2012
The Kentucky Bar Association (KBA) now charges that Finley violated SCR 3.1308.4(c) by using his official position for financial gain. SCR 3.1308.4(c) provides that It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation. In this disciplinary proceeding, Finley acknowledges that his violation of KRS 11A.020(1)(c) amounts to a violation of SCR 3.1308.4(c).
These proceedings are the result of Finley bringing his personal laptop computer to work and using it, in his downtime, to post answers to questions posted on the JustAnswer.com website for profit. The posting of these answers did not interrupt his work assignments. However, Finley occasionally used his office’s Westlaw account to do research before posting an answer to the questions asked on the website. The investigation carried out by the Office of Inspector General disclosed that Finley made thirty-six searches on Westlaw relating to JustAnswer.com questions. Finley disputes the number of searches he made relating to JustAnswer.com, but acknowledges that his use of the office’s Westlaw account and the use of his downtime while at work for the furtherance of his online employment was improper.
Finley now moves for a public reprimand to resolve KBA File 19503. The KBA has no objection to Finley’s motion and believes that a public reprimand is an appropriate sanction for his violation of SCR 3.1308.4(c). See Kentucky Bar Association v. Pat Harris, 269 S.W.3d 414 (Ky.2008) (An attorney was sanctioned with a public reprimand, after adjudication by an administrative agency, for violating Kentucky state employment policies.).
.we agree with the KBA that a public reprimand is the appropriate sanction here, and thus grant Finley’s motion
Kentucky Department of Workers’ Claims
The Workers’ Compensation Nominating Commission is now accepting applications to fill an unexpired term on the Workers’ Compensation Board. This is a full-time position for a term expiring on January 4, 2016. The appointee shall not hold any other public office.
An applicant for the Workers’ Compensation Board Member position must be an attorney and must have the qualifications required of an Appeals Court Judge (except for residence in a district), shall receive the same salary and shall be subject to the same standards of conduct.
APPLICATIONS MUST BE RECEIVED ON OR BEFORE 3:00 PM (EDT), MONDAY, June 3, 2013. Interested parties are required to send one original resume and seven copies, along with a cover letter containing an e-mail address, to the attention of Brenda Majcher, Nominating Commission Clerk, Kentucky Department of Workers’ Claims, Prevention Park, 657 Chamberlin Avenue, Frankfort, KY 40601. Questions may be directed to Ms. Majcher at 502-782-4439 or email@example.com.
Those serving on the Workers’ Compensation Nominating Commission are as follows:
William Grover Arnett, Chairman
Sherri P. Brown-Keller Robert W. Carlisle
Lexington, KY Villa Hills, KY
Brockton L. Edwards Charles E. McCoy
Louisville, KY Owenton, Ky
John W. Morgan Roger D. Riggs
Lexington, KY Mt. Sterling, KY
Applicants and employees in this classification may be required to submit to a drug screening test and background check. The Commonwealth of Kentucky does not discriminate on the basis of race, color, religion, national origin, sex, age, disability, sexual orientation, gender identity, ancestry or veteran status in the admission or access to, or participation or employment in, its programs or services.
Although SCOKY affirmed the scientific evidence of “hair comparison” evidence which has been historically admissible in Kentucky, Justice Scott shot a warning volley over the bow of Daubert with a bit of a warning that the past may not always be the assurance for continuing admissibility -
the state of scientifically accepted evidence is ever changing, and what is scientifically acceptable today may be found to be incorrect or obsolete in the future. In the present case, the trial court correctly took judicial notice of the acceptability of scientific methods, but this is not a rule that is “set in stone,” and is subject to change with scientific discovery. It is up to the trial courts to stay abreast of currently accepted scientific methods, as they are the gatekeepers for the admissibility of evidence. Therefore, even though case law may be in acceptance of a certain method of analysis, it is the trial court’s duty to ensure that method is supported by scientific findings, or at least not seriously questioned by recent reputable scientific findings,’ before taking judicial notice of its acceptability.
Meskimen vs. Commowealth of Kentucky
SCOKY, Published 4/25/2013
OPINION OF THE COURT BY JUSTICE SCOTT – AFFIRMING
MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, SCOTT, AND VENTERS, JJ., SITTING. ALL CONCUR
First degree manslaughter, first degree tampering with physical evidence, third degree alcohol intoxication, and third degree criminal trespass-25 years. Trial court properly denied motion to suppress defendant’s statement obtained during his interrogation at police headquarters and his subsequent statements made during his hospitalization. Right to remain silent. Intoxication. Hair comparison evidence-Daubert hearing. Criminal contempt.
OPINION OF THE COURT BY JUSTICE SCOTT.
Fayette Circuit Court jury found Appellant, Timothy Meskimen, guilty of first-degree manslaughter, first-degree tampering with physical evidence, third-degree alcohol intoxication, and third-degree criminal trespass. For these crimes, Appellant received a twenty-five-year prison sentence. He now appeals as a matter of right, Ky. Const. §110(2)(b), alleging that the trial court erred by: (1) allowing the use of Appellant’s coerced statements in violation of his constitutional rights, (2) failing to suppress the evidence of subsequent statements made during his hospitalization, (3) denying his motion to suppress evidence of hair comparisons, and (4) summarily imposing a consecutive six- month sentence for indirect contempt. For the reasons that follow, we affirm Appellant’s conviction and sentence.
B. Daubert Hearing
Appellant next argues that the trial court erred to his substantial prejudice when it denied his motion to exclude physical evidence. Specifically, Appellant alleges the admission of hair comparisons was erroneous because the trial court failed to conduct a Daubert hearing. We review a trial court’s theory at issue.” Id. “Courts are right to admit or exclude much evidence without reinventing the wheel every time by requiring the parties to put on full demonstrations of the validity or invalidity of methods or techniques that have been scrutinized well enough in prior decisions to warrant taking judicial notice of their status.” Id. (internal quotations omitted). “This Court holds that Kentucky trial judges may take judicial notice of those scientific methods or techniques that have achieved the status of scientific reliability, and thus a Daubert hearing is not required.” Id. at 262. Indeed, leividence of hair analysis by microscopic comparison has been admissible in this Commonwealth for many years.” Id.
In this case, the Commonwealth offered evidence that has been admissible in the state of Kentucky for many years. Microscopic hair analysis is a scientifically reliable method, and we, therefore, do not require that a Daubert hearing be held with regard to the admittance of such evidence. We will not disturb the decisions of the trial court without a clear showing of abuse of discretion. Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996). In this case, there is no indication that the trial court abused its discretion in admitting the evidence. Thus, Appellant’s argument is without merit.
With that being said, the state of scientifically accepted evidence is ever changing, and what is scientifically acceptable today may be found to be incorrect or obsolete in the future. In the present case, the trial court correctly took judicial notice of the acceptability of scientific methods, but this is not a rule that is “set in stone,” and is subject to change with scientific discovery. It is up to the trial courts to stay abreast of currently accepted scientific methods, as they are the gatekeepers for the admissibility of evidence. Therefore, even though case law may be in acceptance of a certain method of analysis, it is the trial court’s duty to ensure that method is supported by scientific findings, or at least not seriously questioned by recent reputable scientific findings,’ 0 before taking judicial notice of its aceptability. That of course was not the case here, thus, we find no error.
Full text below:
The post Experts: Daubert Hearing Admits Hair Comparison Evidence but SCOKY reminds all that prior rulings on admissibility “not set in stone” (Meskimen vs. Commonwealth of Kentucky, SCOKY, Pub, 4/25/2013
KBA CONTINUES TO CLOSELY REVIEW COMPLAINTS AGAINST FEE BILLS OF INDIVIDUAL ATTORNEYS AND SMALL LAW FIRMS. WE CAN’T FIND EVIDENCE OF THE REVIEW OF BILLING PRACTICES OF INSURANCE DEFENSE LAWYERS BY KBA.Monday, May 20th, 2013
Kentucky Bar Ass’n v. Greene, 386 S.W.3d 717 (Ky., 2012) November 21, 2012
As a result of the above conduct on March 16, 2009, Carneal and his current wife filed a bar complaint against Respondent pertaining to Respondent’s representation of him. On July 21, 2009, the Inquiry Commission filed a four-count charge against the Respondent alleging the following violations: (I) SCR 3.1301.9(a) (conflict in representation with a former client for representing Potter in a custody dispute against his former client Carneal); (II) SCR 3.1301.2(d) (scope of representation); (III) …
We agree with the Board that Respondent’s representation of Carneal in the 2007 temporary custody case and Potter in the 2008 de facto custody case did not violate SCR 3.1301.9(a). This rule provides that A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
Nevertheless, there was evidence before the trial commissioner supporting Respondent’s testimony that he performed fourteen to sixteen hours of work on the Foster case. Obviously a fee of $2,000.00 for this amount of work (less than $150.00 per hour) is not unreasonable, particularly considering the extraordinary efforts made to accommodate Foster during her initial, highly distraught, visit to the office. Nor would a $2,000.00 advance retainer for this type of case be unreasonable given the circumstances presented. By depositing of the funds directly into his office account rather than his client escrow account, Respondent committed a violation. That violation was, however, mooted in the short time it took Respondent to perform services that earned the fee.
The burden of proof shall rest upon [Bar Counsel] in a disciplinary proceeding, and the facts must be proven by a preponderance of the evidence. SCR 3.330. Because Bar Counsel failed to present any testimony to refute Respondent’s evidence, the alleged violation was not proven by a preponderance of the evidence. As such, based upon the evidence presented at the evidentiary hearing as discussed above, we determine that Respondent did not charge an unreasonable fee in violation of SCR 3.1301.5(a) and he did not fail to return an unearned fee in violation of SCR 3.1301.16(d). The brief comingling of client funds with the law firm’s funds (SCR 3.1301.15(a)) was of such duration that we agree with the Board’s conclusion that discipline is not warranted.
RIGHT OF INDIGENT TO HAVE APPOINTED COUNSEL IN CHILD CUSTODY CASES
A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. App., 2012)
A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. App., 2012) February 24, 2012
This is an appeal from the Kenton Family Court’s January 11, 2011 order terminating the parental rights of appellant, A.C., with regard to her minor son, M.W.C. In the course of our review, we are called upon to determine whether it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to appeals from orders terminating parental rights and, if so, whether the appeal before us is, in fact, wholly frivolous. We answer both questions affirmatively and affirm the family court’s judgment.
In 1971, our Supreme Court adopted, albeit indirectly, the Anders principle and began accepting Anders briefs in no-merit appeals in criminal proceedings. Fite v. Commonwealth, 469 S.W.2d 357, 358 (Ky.1971); see also Fraser v. Commonwealth, 59 S.W.3d 448, 454 (Ky.2001) (noting, pursuant to Fite, Kentucky has adopted Anders proceedings in criminal appeals). Since that time, Kentucky appellate courts have consistently permitted appointed counsel to file Anders briefs in direct appeals of criminal matters. See, e.g., Hughes v. Commonwealth, 875 S.W.2d 99, 101 (Ky.1994) (denying counsel’s motion to withdraw, pursuant to Anders, on the ground that the appeal was not wholly frivolous); Caldwell v. Commonwealth, No. 2007CA001922MR, 2009 WL 4882826, at *1 (Ky.App. Dec. 18, 2009); Young v. Commonwealth, No. 2006CA001092MR, 2007 WL 4125899, at *1 (Ky.App. Nov. 21, 2007).
However, we have not yet addressed whether Anders proceedings should be extended to cases outside the criminal context and, particularly, to termination of parental rights matters. See C.R.G. v. Cabinet for Health and Family Services, 297 S.W.3d 914, 915 (Ky.App.2009)(declining to address whether Anders may be invoked in a termination of parental rights case). We do so now.
Initially, we must determine whether indigent parents are entitled to appointed counsel on appeal. But for a constitutional or statutory right to appellate counsel, the attorney can simply terminate his or her relationship with the indigent parent and avoid submitting a frivolous appeal to this Court, thus eliminating the need for Anders-like procedures in termination of parental rights cases.
The United States Supreme Court has found no absolute right to counsel in termination cases under the umbrella of the United States Constitution but instead has held the appointment of counsel need only be made on a case-by-case basis. Lassiter, 452 U.S. at 3132, 101 S.Ct. at 2162; see also A.P. v. Commonwealth, Cabinet for Health and Family Services, 270 S.W.3d 418, 420 (Ky.App.2008). Kentucky’s General Assembly eliminated the need for a case-by-case determination by enacting KRS 625.080(3), which provides, in pertinent part, that parents have the right to legal representation in involuntary termination actions. The Circuit Court shall determine if the parent is indigent and, therefore, entitled to counsel. KRS 625.080(3); see also Z.T. v. M.T., 258 S.W.3d 31, 36 (Ky.App.2008).
While KRS 625.080(3) does not limit appointed representation to trial proceedings, neither does it explicitly allow for appointed counsel during the appellate process. In construing KRS 625.080(3), our purpose is to give effect to the intent of the General Assembly, and we derive that intent, if at all possible, from the plain meaning of the language the General Assembly chose. Bowling v. Kentucky Dep’t of Corrections, 301 S.W.3d 478, 49091 (Ky.2009). To that end, the language of the statute is to be given full effect as written. Mohammad v. Commonwealth, 202 S.W.3d 589, 590 (Ky.2006). We believe a fair reading of KRS 625.080(3) reveals the Kentucky legislature intended to afford indigent parents the benefits of counsel during the entire course of the termination proceedings, including any appeal.
In sum, we are persuaded by the reasoning of the majority of states addressing the issue and agree the benefits from the Anders protections to the indigent parent’s right to counsel outweigh any potential harm. LinkerFlores, 194 S.W.3d at 747. Accordingly, we hold the procedures set forth in Anders, as so modified by this opinion, apply to appeals from orders terminating parental rights in which an indigent parent has court-appointed counsel who concludes the appeal lacks any meritorious issues which might support the appeal, and is, therefore, frivolous.
We believe it prudent to include a procedural blueprint to assist the bar in cases in which an Anders brief is warranted. Particularly, we are compelled to emphasize that an Anders brief should not be used as an escape provision for a court-appointed counsel whose payments have exhausted, but should only be filed when appointed counsel has conducted a thorough, good-faith review of the record and can ascertain absolutely no meritorious issue to raise on appeal. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. In the context of termination of parental rights cases, counsel should, at a minimum, review the circuit court’s (1) neglect and/or abuse determination; (2) finding of unfitness under KRS 625.090(2); and (3) best-interests determination.
In accordance with Anders, once counsel has reached the conclusion that the appeal is wholly frivolous, counsel should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. Anders, 386 U.S. at 744, 87 S.Ct. at 1400. That means counsel must accomplish all this within the thirty-day window allowed in CR 76.12(2)(a)(i) for filing briefs in such a case. The Anders brief shall both refer to anything in the record that might arguably support the appeal [,] Anders, id., and objectively demonstrate the issues identified are wholly frivolous. See In re S.M., 314 Ill.App.3d 682, 247 Ill.Dec. 424, 732 N.E.2d 140, 143 (2002) (requiring appointed counsel to (a) sketch the argument in support of the issues that could conceivably be raised on appeal, and then (b) explain why he believes the arguments are frivolous).
Moreover, the Anders brief must conform with CR 76.12 by including, inter alia, statements regarding whether the argument was preserved regardless of its lack of merit, a thorough recitation of the facts, a concise and well-reasoned analysis of the issues, and appropriate citations to the record and law. See CR 76.12(4). Further, appointed counsel must certify in the Anders brief that counsel provided the indigent parent with a copy of the brief and informed the parent that he or she has a right to file a pro se brief raising any issues the parent deems meritorious. Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
Upon receiving counsel’s motion to withdraw and accompanying Anders brief, this Court shall enter an order granting the indigent parent thirty days to file a pro se brief and deferring counsel’s motion to withdraw to the merits panel. The order shall also grant the Cabinet thirty days from the due date of the parent’s pro se brief to file its response. After all briefs are filed, this Court will fully examine the record and decide whether the appeal is wholly frivolous pursuant to Anders, 386 U.S. at 744, 87 S.Ct. at 1400. During the course of this review, this Court may, in its discretion, order either or both parties to file a supplemental brief addressing any issues this Court finds may have merit.
A decision to terminate parental rights is fact-intensive and requires strict application of statutory standards. P.C.C. v. C.M.C., Jr., 297 S.W.3d 590, 592 (Ky.App.2009) (In order to protect the rights of natural parents, Kentucky courts require strict compliance with statutory provisions governing the involuntary termination of parental rights.). Furthermore, the evidence to support terminating parental rights must be clear and convincing. KRS 625.090(1). Therefore, we urge restraint in filing Anders briefs. The Anders brief is not a substitute for an advocate’s brief on the merits. McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 444, 108 S.Ct. 1895, 1904, 100 L.Ed.2d 440 (1988). Likewise, it is not an escape provision to end undercompensated, and sometimes uncompensated, legal services the lawyer agreed to provide.
.. Compare SCR 3.130, Preamble, III (requiring an attorney to zealously assert the client’s position under the rules of the adversary system) and SCR 3.130(1.2)(a) ([A] lawyer shall abide by a client’s decisions concerning the objectives of representation.) with SCR 3.130(3.1) (A lawyer shall not knowingly bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.) …
In view of our consideration of this case under the standards of Anders and its progeny, the Cabinet’s Motions to Dismiss and to Advance are moot.
Based on the foregoing, the Kenton Family Court’s January 11, 2011 order terminating A.C.’s parental rights as to M.W.C. is affirmed.
CONN. COURT HOLDS THAT LAWYERS CAN’T BE SUED FOR FRAUD UNDER OLD LEGAL DOCTRINE
DAVE COLLINS , The Associated Press, MAY 17, 2013, 10:51 AM
HARTFORD, Conn. – The state Supreme Court has ruled in an ex-NFL player’s case that Connecticut lawyers can’t be sued for fraud for their conduct in court cases because of a centuries-old legal doctrine.
The court’s 5-1 decision last week came in the case of Bob Simms of Greenwich, who played for the New York Giants and Pittsburgh Steelers in the early 1960s and founded the investment firm Simms Capital Management Inc. in 1984.
Simms, 74, tried to sue his ex-wife, Donna, and her lawyers, alleging they failed to disclose a nearly $360,000 inheritance she received in 2006 and 2008, during a legal fight over the amount of alimony he pays her. Donna Simms’ lawyers denied the allegations. A trial court judge ruled against Bob Simms, and he appealed.
Simms called the Supreme Court’s ruling “ludicrous” on Friday.
Justices ruled May 10 that lawyers are shielded from fraud lawsuits under absolute immunity, a doctrine dating back to medieval England. The doctrine was intended to promote people speaking freely at judicial proceedings without fear of being sued and to avoid hindering an attorney’s advocacy for his or her client.
“The mere possibility of such (fraud) claims, which could expose attorneys to harassing and expensive litigation, would be likely to inhibit their freedom in making good faith evidentiary decisions and representations and, therefore, negatively affect their ability to act as zealous advocates for their clients,” Justice Peter Zarella wrote in the majority opinion.
The court cited decisions by federal courts, including the U.S. Supreme Court, recognizing absolute immunity for government lawyers. Justices also said Connecticut lawyers can be punished for any misconduct, including being disbarred by the Statewide Grievance Committee.
Justice Richard Palmer dissented in the ruling. He said the majority’s decision is out of step with a large majority of courts or legislatures that have declined to extend absolute immunity to include fraud. He also said the court’s majority ignored a “strong presumption” against absolute immunity.
“The majority’s decision rightly will be viewed , by nonlawyers especially , as unduly protectionist of attorneys,” Palmer wrote.
Bob and Donna Simms married in 1961 and divorced in 1979. He was ordered to pay alimony as part of the divorce settlement. The legal wrangling resumed in 1989 when she filed motions to increase the alimony while he sought to decrease or eliminate it.
The case took a number of twists and turns over the years, including three trips to the state Supreme Court.
The attorneys named in Bob Simms’ lawsuit are Penny Seaman, Susan Moch, Kenneth Bartschi, Brendon Levesque and Karen Dowd, all of whom represented Donna Simms in various state Superior Court and appeals court proceedings from 2005 to 2008. They denied the allegations.
A phone message seeking comment was left at Donna Simms’ home on Friday.
According to court documents, Donna Simms inherited $310,000 from an uncle in June 2006 and another $49,000 from his estate in February 2008. Bob Simms claimed she and her lawyers intentionally concealed the inheritance during court proceedings until May 2008, when they were forced to disclose it under a court order. A lower court judge ruled that information about the inheritance had been improperly withheld.
Bill Garmer a member of the KBA Board of Governors, and successful Lexington attorney is considering a challenge against Mitch McConnell in next years U.S. Senate race.
Lexington Herald states:
FRANKFORT — Former Kentucky Democratic Party Chairman Bill Garmer said Friday he is considering running for the U.S. Senate next year if Secretary of State Alison Lundergan Grimes declines to enter the race against Republican incumbent Mitch McConnell.”A lot of people have talked to me about the race,” said Garmer, a Lexington lawyer, in a telephone interview. “But Alison is the center of discussion. In my mind, if she wants the nomination, she has my support. She is one of the bright stars in the Democratic party and she wants to serve Kentucky. I would be the first in line to support her.”Asked if he would consider running if Grimes decides not to run, Garmer said, “that sounds like a lawyer’s question but that would be fair.”Neither Grimes nor McConnell’s campaign manager, Jesse Benton, returned phone calls Friday seeking comment.Grimes said April 23 that she is pondering whether to run for the U.S. Senate next year against McConnell. She said she would “take the time to reflect with my family, my supporters on how I can best continue to serve the Commonwealth of Kentucky.”Grimes did not set a timetable for making a decision, saying only that she would “give it the due diligence it deserves.” She has not yet announced her decision.Her father, businessman Jerry Lundergan of Lexington, replaced Garmer in January 2005 as state Democratic Party chairman. Garmer held the post for a year, and resigned after Democrats suffered a series of defeats in November 2003 elections. Lundergan also had been party chairman in 1988 during the administration of the late Gov. Wallace Wilkinson.Garmer said he thinks Grimes is aware of his political sentiments “but I’ve not had a direct one-on-one” conversation with her about the race.”I can’t emphasize enough that I hope Alison runs,” he said.The Kentucky Democratic Party “will have a credible candidate” to run against McConnell, Garmer said.”It’s important for the party to get behind a single candidate,” he said. “Registration in Kentucky is majority Democratic, and if the party gets behind a single candidate, we win.”Two Democrats without a statewide following have said they will challenge McConnell next year: Owensboro contractor Ed Marksberry and Louisville musician and music promoter Bennie J. Smith.Environmental attorney Tom FitzGerald of Louisville said last month that he is thinking about running for the Democratic nomination. He said this week that he expects to make a decision by the end of this month.Actress Ashley Judd had considered entering the race since late 2012 but announced in March that she would not challenge McConnell.Several well-known Democrats have said they have no plans to run. They include Gov. Steve Beshear, Lt. Gov. Jerry Abramson, former Auditor Crit Luallen, Attorney General Jack Conway, Auditor Adam Edelen, Louisville Mayor Greg Fischer and former Lt. Gov. Daniel Mongiardo of Hazard.No Republican has emerged to challenge McConnell in a primary, though Tea Party activist David Adams of Jessamine County said earlier this week that a Tea Party candidate will announce soon for the race.Garmer has a legal career that spans more than 35 years. He was one of five attorneys selected to the trial team to represent the families of the passengers of Comair Flight 5191, which crashed on takeoff from Lexington in August 2006. He recently represented the family of a victim of nursing home abuses resulting in an $8 million jury verdict in Louisville.Garmer received his law degree from the University of Kentucky in 1975 after obtaining a bachelor of arts degree from UK.He is a member of several professional organizations and has received numerous awards in the legal community. He also has been an adjunct professor at the University of Kentucky College of Law in litigation skills since 1981 and in health care law since 2003.Garmer served on active duty in the U.S. Air Force as a staff sergeant from 1969 to 1973. He also is a member of the board of governors of the Prichard Committee for Academic Excellence.Garmer is scheduled to appear on Kentucky Tonight, a public affairs show of the Kentucky Educational Television network, Monday night to discuss the 2014 election with Republicans Steve Robertson and Ellen Williams and Democrat Jonathan Miller.
Read more here: http://www.kentucky.com/2013/05/17/2643731/former-kentucky-democratic-party.html#emlnl=AM_update#storylink=cpy
On May 17, 2013 the Ky. Court of Appeals upheld a Family Court Order mandating that divorced parents subscribe to “Our family Wizard” on line software to assist parents to avoid direct communication and to avoid many legal issues by providing a method of communication that time stamps entries and avoids a lot of “he said” and “she said” disputes in the Family Court.
This looks like a useful tool which any practitioner of family law might consider. The price is only $99 per spouse per year.
Click to Read Full Tex tof the Ky. Ct. of Appeals decision: 2012-CA-000568 NOT TO BE PUBLISHED KENTON
TELEK (JOHN STEPHEN) VS. DAUGHERTY (N/K/A TAYLOR) (SAMANTHA)
The site may be accessed at:
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The OurFamilyWizard website® is so effective that judges in nearly all 50 states and 5 Canadian provinces have ordered families to utilize the site in contested cases to reduce family conflict. Why not take the step to create a better life for you and your co-parenting family? Join the tens of thousands of families in over 70 countries who already have made the decision to improve their life by using the OurFamilyWizard website®.
GATSBY AT BAT MAY 15,2013
The best tales concern desire & that is what The Great Gatsby is about. Like any re-make, the scrutiny of The Great Gatsby for many will be in the context of the 2 previous versions & of course the landmark American novel which each are respectively based upon. And that is where the most recent version has its strengths. Themes of private verses public self & the fine line between unconditional love & obsession are the most obvious explorations in the 2013 version.
Each of the main characters are suffering from a basic existential dilemma which essentially forces them to maintain dual identities; the public face seen by friends & family in contrast to the private one available to paramours & cronies. These mated constructs are supported by both the expectations of social propriety & the circumstance of Prohibition Era America. Gatsby’s internal conflict puts his character on both sides of the equation, being that he desires to reveal his secret love for Daisy yet his perceived set of requirements for doing so prevents from divulging his past & source of his wealth.
One secret which is easily kept is how Gatsby’s character failed, repeatedly & miserably. Within the context of the story, Gatsby’s acquired opulence in the name of love is impressively quaint. Yet the contrast between the extravagant gala’s thrown in the vain attempt to lure Daisy to his lair & how their affair proceeds once he gets her there are polemical; the lights had been turned off at the once brilliant mansion. His insistence for Daisy’s complete renunciation of having ever loved Buchanan is the completion of his obsessive attraction to her. Perhaps Daisy had become a symbol for his feelings of shame about his impoverished upbringing, she seemingly not being recognized as much beyond that. In fact, Gatsby had 3 opportunities with Daisy that he misplayed; first being when he chose to seek his fortune rather than return to her, the next was when she asked him to run away together at the party, & the third was when he pressured her into denouncing her marriage as a fraud. Three strikes, you’re out.
The weakness of the film mostly lies in the sound track; Hip Hop doesn’t retro-fit easily, if at all. The other seemingly unexplained element is the background as to why the protagonist is writing the story in a sanitarium; probably shouldn’t be casually dismissed but most likely will be by most, including yours truly.
All in all, the best version to date & an interesting movie which may do more justice to the novel than it deserves.
Douglas W. Milbern
Divisibility of Disability Pension Later Reclassified as Ordinary Retirement Pension, Attorney’s Fees, Bailey v. Bailey, Case Digest, Ky Court of Appeals by Diana Skaggs and AssociatesMonday, May 13th, 2013
Divisibility of Disability Pension Later Reclassified as Ordinary Retirement Pension, Attorney’s Fees, Bailey v. Bailey, Case Digest, Ky Court of Appeals by Diana Skaggs and Associates
Buddy Lee Bailey v. Linda Beth Bailey, No. 2012-CA-000508-MR
Husband filed for dissolution of the parties’ thirty year marriage in 2004. During his employment, Husband actively participated in his employer’s retirement pension plan. Subsequent to the parties’ separation, Husband was injured and filed for short term disability. The order entered by the Court after mediation included a provision that Husband was to provide to Wife information concerning the retirement account, including the policy, and all information regarding Husband’s disability. Wife was not provided with this information. The trial court entered a limited decree of dissolution in December 2004. In August 2006, the Court entered a judgment against Wife for the value of Husband’s personal property not returned to him. Husband filed a motion in June 2008 to satisfy the judgment. Since the pension issue had not been resolved, the Court also granted Wife’s request that the parties exchange all documents relating to retirement or disability accounts.
In June 2011, the Court entered an order holding that Husband’s retirement pension was not subject to division as marital property because Husband’s retirement pension was converted into a disability pension. Wife filed a motion to alter, amend or vacate the order because she was never provided with the retirement policy documents. Husband was deposed, and Wife received the documents. In January 2012, the Court granted Wife’s motion to alter, amend or vacate the judgment, holding that Wife was entitled to entry of a Qualified Domestic Relations Order allocating one half of the pension benefits accrued from the date of marriage to the date of the entry of the limited decree of dissolution. The court found that Husband’s disability pension would be converted to an ordinary retirement pension when Husband reached the age of 62. Wife was also ordered to satisfy the August 2006 judgment against her, plus statutory interest. Husband filed a motion to alter, amend or vacate the Court’s January 2012 order. The Court denied Husband’s motion after a hearing, and Husband appealed.
When the Court ruled on the divisibility of the retirement plan, the relevant plan documents had not been made available to Wife or the Court. Because a full and candid disclosure of the parties’ assets is necessary for an equitable division of property, the Court did not abuse its discretion in granting Wife’s motion. Once obtained, the policy clearly stated that when Husband turned 62 his disability pension would end, and he would become eligible for a normal retirement pension. The Court of Appeals distinguished this case factually from the Kentucky Supreme Court’s decision in Holman v. Holman, 84 S.W.3d 903 (Ky. 2002), which held that disability benefits which replace future income should not be classified as marital property. Husband’s disability benefits would be reclassified on a date certain, which was different from the facts presented in Holman. The ordinary pension benefits that were accumulated during the marriage that would be reclassified as normal pension funds when Husband turned 62 were marital property. Any other conclusion would be inequitable because it could allow a spouse to prevent the other spouse from his or her share of retirement benefits through an election of disability coverage.
On the attorney’s fees issue, Husband argued that the Court failed to rule on the motion. Wife argued that the Court’s silence on the matter was a denial of attorney’s fees. The Court of Appeals agreed with Wife, stating that attorney’s fees are entirely within the discretion of the trial court, and the Court in this case clearly considered the financial resources of both parties throughout the lengthy proceedings. Nothing in the record could demonstrate that the Court abused its discretion in failing to award attorney’s fees.
Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates
Justice Michelle M. Keller to be formally sworn in as a Supreme Court justice May 14 at the Capitol
Ceremony is open to the public
FRANKFORT, Ky., May 10, 2013 – Justice Michelle M. Keller will be formally sworn in as a justice of the Supreme Court of Kentucky at an investiture ceremony Tuesday, May 14, at the state Capitol in Frankfort. The event is open to the public and will take place at 11 a.m. EDT in the Supreme Court Courtroom on the second floor of the Capitol. The Capitol is located at 700 Capitol Ave.
Gov. Steve Beshear appointed Justice Keller in April to serve as the justice from the 6th Supreme Court District. Justice Keller was a Court of Appeals judge for the six years prior to being selected for the Supreme Court. With her appointment, the seven-member Supreme Court now has three female justices for the first time ever.
Justice Keller was appointed to fill the unexpired term of Justice Wil Schroder, who retired in January 2013 due to health issues.
The 6th Supreme Court District is composed of Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble counties.
The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices 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.
An FBI investigation manual updated last year, obtained by the ACLU, says it’s possible to warrantlessly obtain Americans’ e-mail “without running afoul” of the Fourth Amendment.
by Declan McCullagh
The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.
Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.
The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly “all records from an ISP.” And the U.S. attorney in Houston recently obtained the “contents of stored communications” from an unnamed Internet service provider without securing a warrant signed by a judge first.
“We really can’t have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they’re going to be,” says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. “Courts and Congress need to step in.”
The Justice Department’s disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents “may subpoena” e-mail records from companies “without running afoul of” the Fourth Amendment.
The department did not respond to queries from CNET Tuesday. The FBI said in a statement that:
In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines. Our field offices work closely with U.S. Attorney’s Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.
Not all U.S. attorneys have attempted to obtain Americans’ stored e-mail correspondence without a warrant. The ACLU persuaded a judge to ask whether warrantless e-mail access has taken place in six of the 93 U.S. Attorneys’ offices — including the northern California office that’s prosecuted an outsize share of Internet cases. The answer, according to assistant U.S. attorney Christopher Hardwood, was “no.”
Still, the position taken by other officials — including the authors of the FBI’s official surveillance manual — puts the department at odds with a growing sentiment among legislators who insist that Americans’ private files should be protected from warrantless search and seizure. They say the same Fourth Amendment privacy standards that require police to obtain search warrants before examining hard drives in someone’s living room, or a physical letter stored in a filing cabinet, should apply.
After the IRS’s warrantless e-mail access policy came to light last month, a dozen Republican and Democratic senators rebuked the agency. Their letter (PDF) opposing warrantless searches by the IRS and signed by senators including Mark Udall (D-Colo.), Mike Lee (R-Utah), Rand Paul (R-Ky.), and Ron Wyden (D-Ore.) said: “We believe these actions are a clear violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.”
Steven Miller, the IRS’ acting commissioner, said during a Senate hearing that the policy would be changed for e-mail. But he left open the possibility that non-email data — Google Drive and Dropbox files, private Facebook and Twitter messages, and so on — could be accessed without a warrant.
Albert Gidari, a partner at the Perkins Coie law firm who represents technology companies, said since the Sixth Circuit Court of Appeals’ 2010 ruling in U.S. v. Warshak, the Justice Department has generally sought court warrants for the content of e-mail messages, but is far less inclined to take that step for non-email files.
Before the Warshak decision, the general rule since 1986 had been that police could obtain Americans’ e-mail messages that were more than 180 days old with an administrative subpoena or what’s known as a 2703(d) order, both of which lack a warrant’s probable cause requirement and are less privacy protective. Some e-mail providers, including Google, Microsoft, Yahoo, and Facebook, but not all, have taken the position after Warshak that the Fourth Amendment mandates warrants for e-mail all over the country.
The 180-day rule stems from the Electronic Communications Privacy Act, which was adopted in the era of telephone modems, BBSs, and UUCP links, and long before gigabytes of e-mail stored in the cloud was ever envisioned. Since then, the appeals court ruled in Warshak, technology had changed dramatically: “Since the advent of e-mail, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away… By obtaining access to someone’s e-mail, government agents gain the ability to peer deeply into his activities.”
A phalanx of companies, including Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft, and Twitter, as well as liberal, conservative, and libertarian advocacy groups, have asked Congress to update ECPA to make it clear that law enforcement needs a warrant to access private communications and the locations of mobile devices.
In November, a Senate panel approved the e-mail warrant requirement, and acted again last month. Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley, introduced similar legislation in the House of Representatives.
The political pressure, coupled with public petitions and increased adoption of cloud-based services, has had an effect. In 2011, James Baker, the associate deputy attorney general, warned that requiring search warrants to obtain stored e-mail could have an “adverse impact” on criminal investigations. By March 2013, however, Elana Tyrangiel, an acting assistant attorney general, indicated that the department would acquiesce on some privacy reforms.
“They dropped their opposition in Congress, but they’re going to try to wiggle out from under the Fourth Amendment whenever possible,” says the ACLU’s Wessler. “They probably realize that they couldn’t figure out a way to respond to hard questions from Congress anymore.”
Separately, the New York Times reported Tuesday evening that the Obama administration may embrace the FBI’s proposal for a federal law mandating that tech companies build in backdoors for surveillance. CNET reported last year that the FBI has asked the companies not to oppose such legislation, and that the FBI has been building a case for a new law by collecting examples of how communications companies have stymied government agencies.
Last week, FBI former counterterrorism agent Tim Clemente told CNN that, in national security investigations, the bureau can access records of a previously-made telephone call. “All of that stuff is being captured as we speak whether we know it or like it or not,” he said. Clemente added in an appearance the next day that, thanks to the “intelligence community” — a likely reference to the National Security Agency — “there’s a way to look at digital communications in the past.”
COMMENTS BY HON. MICHAEL DOWLING OF ASHLAND REGARDING WILLIAM GALLION DEFENSE IN FEN PHEN TRIAL – PART TWO
In two federal trials for wire fraud the judges disagreed on the applicable law pertaining to a $200 million dollar settlement of a diet drug lawsuit.
In the first trial the judge ruled it was a class action settlement and the jury was instructed that the defendant lawyers had an obligation to give notice on the fee hearing and the distribution of excess funds. The jury was instructed that if failure to do so was not done with the intent to commit fraud on the clients the jury should acquit. After several days of deliberation the jurors deadlocked 10 voted to acquit.
In this trial the defendants were indicted and charged with not following class action law.Stan Chesley a nationally recognized class action expert testified that he advised the defendants to hold back excess monies for other potential claims and if none developed then to give the excess funds to the 440 clients who were represented by the defendants.
In the second trial the judge ruled it was an aggregate settlement and the jury was instructed that the defendants had an obligation to follow the duties set out in the aggregate settlement rule 3.130 (1.8)(g) of the Rules of the Supreme Court of Kentucky.
Stan Chesley repeated the testimony he gave in the first trial. In both trials the defendants pled they relied on Stan Chesley’s advice in administrating the settlement.
The defendants had voluntarily agreed to withdraw from the Kentucky Bar Association with an agreement that the admissions made and the disbarment proceedings would not proceed until after the criminal trial was concluded. Immediately after the mistrial the KBA initiated disbarment and the defendants were disbarred prior to the second trial.
The Chief Bar Counsel of the KBA was a witness in the second trial who testified extensively on the Findings of Fact and the Order disbarring the defendants which was admitted into evidence in the second trial.
The KBA cooperated with the government in both trials and knew Stan Chesley’s hold back testimony. The KBA also knew they had filed charges against Stan Chesley accusing him of advising the state court judge who presided over the $200 million dollar settlement that once the 440 clients had given Releases in a class action settlement the remaining funds were Excess that the state court judge was responsible for distributing.
The state court judge, both defendants and a trial consultant knew Stan Chesley was at the fee hearing and so advised the judge and additional gave the judge the Grinnel factors used by courts in determining attorney fees. Stan Chesley testified he didn’t recall being at this hearing where the court approved a $100 miillion dollar attorney fee to be shared by five law firms.
The AUSA who questioned the state court judge before the Grand Jury asked the judge if he believed Stan Chesley was equally accountable as the other defendant attorneys. In grand jury testimony the state court judge laid out the fact that it was Stan Chesley who led off the fee hearing discussing a cy pres trust as a vehicle to receive Excess Funds from the settlement.
The KBA made a Motion for a Protective Order in the second trial to prevent the defense from questioning government witnesses on pending bar charges. Counsel for the KBA was seen entering the chambers of the federal judge the evening before counsel made this Motion. The judge was asked immediately after the Motion had been granted if he had contact with the KBA that the defense was not aware of. The Judge responded you can ask but I don’t have to answer.
Three government witnesses had pending bar charges to wit: Stan Chesley, Joseph Bamberger, the state court trial judge, and David Helmers a law associate, of the defendant, who was extensively involved in the litigation.
The KBA files might have shown Stan Chesley was accused of conduct that directly contradicted testimony he gave in both trials.
Judge Bamberger’s file might have shown he gave incorrect testimony concerning what the defendant told him concerning the clients knowledge on the disposition of $20 million dollars to the charity the judge ordered. At the Hearing on the creation of the charity the judge said the defendant told him the clients were thrilled with putting $20 million dollars in to a charity. In the a proceeding before the Judicial Conduct Commission ( where he was reprimanded ) he said he didn’t know what the client knew concerning Excess funds.
The defendant denied the Judge’s testimony. The defendant theorized that he may have told the judge the clients were thrilled with getting a second distribution of funds that he had previously approved at the fee hearing.
The KBA had knowledge of information in the files of the government witnesses that contradicted testimony they gave in the criminal trials.
Did the KBA violate the Civil Rights of the Defendants ?
Morgan v. Getter (Ky. App., 2013) February 22, 2013
In this case, the court stated on the record that it appointed the Guardian Ad Litem for the purpose of representing A.G. The court was authorized by FCRPP 6 to make the appointment.
The GAL who was appointed is a licensed attorney and is, therefore, subject to the Rules of the Supreme Court (SCR) governing attorneys’ conduct. Under the circumstances, the GAL potentially would have violated two rules if he had testified.
First, SCR 3.130-1.6 prohibits a lawyer from revealing confidential information. If the GAL had been subject to examination and cross-examination, he likely would have been in the untenable position of revealing confidential communications between himself and his client. Furthermore, the GAL’s testimony would have been a violation of SCR 3.130-3.7:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
Morgan has not suggested that the GAL was subject to any of these exceptions. Therefore, as A.G.’s advocate in the custody proceedings, it would have been unethical for the GAL to be questioned concerning his report. The court properly denied Morgan’s motion to examine the GAL.
Morgan also contends that the court erred in denying her motion to strike the GAL’s report. This argument is premised on the contention that it was error not to allow her to cross-examine the GAL. Having held that the examination of the GAL would have been improper, we conclude that there is no merit to the allegation that the report should have been stricken.
The court appointed the GAL to provide an opinion and advice – essentially to counsel the court in formulating its decision. See FCRPP 6. It would have been counter-productive for the court to have been forced to disregard the GAL’s report. The court did not err by considering the report in its exercise of its considerable discretion.
All the attorneys in this case agree that courts and attorneys find themselves in a quandary due to the lack of statutory definition of the proper role of a GAL in a custody proceeding. Opinions submitted by professionals who are not GAL’s are subject to cross-examination. KRS 403.290(2).
However, because a GAL is governed by the Rules of Professional Conduct, lawyers serving as GAL’s cannot be cross-examined by parties as to the basis of their recommendations sought by the courts appointing them.
The conflict is patent: is the GAL acting as advocate for a client or for expert counselor to the court?
The ambiguity creates a clear potential for prejudice by precluding cross-examination of a GAL by the parties whose interests are at issue and are the very subject matter of the report prepared by the GAL at the behest of the Court.
We believe that the potential for prejudice and the inherent conflict created by lack of clarity in the statute merits (indeed necessitates) the scrutiny of the General Assembly and/or the Supreme Court to define the proper role of a GAL in child custody issues.
CLAYTON, JUDGE, CONCURRING: I concur with the result reached by the majority, but I write separately. I do not think it was proper for the court in this case to admit the report of the GAL when the GAL was representing A.G.
Neither the appellant nor the appellee should have been placed in a position where A.G.’s attorney not only functioned as her legal representative but also served as an advisor or expert to the court.
The GAL was asked to serve in conflicting roles. Further, I do not think that FCRPP 6 (1) differentiates GALs from other professionals. Unlike any other advisor, the GAL in this matter was not subject to examination and, therefore, his report was admitted without challenge
FAMILY COURT RULING RE: PARTY CITES NO CASE REQUIRING FILING OF NEW ACTION IF PERMANANCY HAS BEEN ACHIEVED.Wednesday, May 8th, 2013
[U] Adams v. Cook (Ky. App., 2012) August 24, 2012
Finally, Adams asserts the trial court misapplied FCRPP 31 in the neglect action and should have treated the neglect action and the custody case as one.
We have been cited no case interpreting FCRPP 31 which requires that “any new allegation or request for removal after a child has achieved permanency shall be filed as a new action.” We question whether the new rule was applicable in this case because it does not appear that permanency had been achieved when the rule change was discussed in the trial court on March 28, 2011.
However, during the hearing on Adams’s motion to intervene, counsel agreed with the trial court’s statement that intervention was no longer allowed under the new family court rules and a new action would have to be initiated.
Counsel explained that he filed pleadings in the neglect action just to get the matter before the trial court as quickly as possible in an attempt to return things to the way they were before the entry of the two erroneous orders giving custody of C.L.W. to Cook.
Adams cannot change her approach to now argue that intervention was still allowed under the new rule and the trial court erred in requiring the filing of a separate custody case.
As has been said before, an appellant may not “feed one can of worms to the trial judge and another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). Thus, this allegation of error in the neglect action is not properly before us.
Adams v. Cook (Ky. App., 2012)
Allen v. Commonwealth – Ky Sup. Ct., 2013 – March 21, 2013
TO BE PUBLISHED JEFFERSON
GABRIELLA SIMONE ALLEN
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY
JUSTICE NOBLE –
MINTON, C.J.; ABRAMSON,
CUNNINGHAM, NOBLE, SCOTT AND
VENTERS, JJ., SITTING. CUNNINGHAM,
NOBLE, SCOTT AND VENTERS,
JJ., CONCUR. MINTON, C.J.;
CONCURS IN RESULT BY
SEPARATE OPINION IN WHICH
ABRAMSON, J., JOINS.
B. Allen was entitled to inquire into the conduct underlying Weaver’s convictions on cross-examination under KRE 608(b).
….. Given the preference for resolving cases on statutory or other non-constitutional grounds when possible, this Court addresses Allen’s claim about KRE 608(b) first.
Allen notes in her brief that her “trial counsel sought merely to cross-examine Weaver about the nature of the prior acts for which he was convicted, because such acts were highly probative of his character for truthfulness.” However, during the avowal, Allen’s trial counsel confronted Weaver with copies of his various convictions and read parts of them out loud, though these documents were not added to the record for appeal.
Generally speaking, reputation evidence is admitted in the form of opinion or general reputation. See KRE 608(a). Indeed, before 2003, such evidence could “refer only to general reputation in the community.” KRE 608 (1992)). And ordinarily, a person’s other crimes or bad acts, other than those that the trial is about, are inadmissible, with some limited exception. See KRE 404(b).
But in 2003, KRE 608 was substantially amended to track the federal version of the rule. See Supreme Court Order 2003-3 (April 23, 2003). Now, under KRE 608(b), specific instances of bad conduct reflecting on the witness’s dishonesty may be inquired about. The rule provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.
KRE 608(b). Of particular importance, the rule does not allow proof of specific instances of conduct by extrinsic evidence. Instead, counsel is limited to asking the witness about the specific instance of conduct on cross-examination and is stuck with whatever answer is given. KRE 608(b) distinguishes general instances of behavior from convictions, which it states can be proven only under KRE 609, which does allow proof by extrinsic evidence in the event the witness denies a bona fide conviction, and which deals only with felony convictions.
In 2010, this Court held that KRE 608 did not apply to conduct that had resulted in a criminal conviction, which instead is covered by KRE 609. See Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010). This Court stated: “KRE 608(b) permits impeachment only by specific instances of conduct that have not resulted in a conviction while evidence relating to impeachment by criminal conviction is governed solely by KRE 609.” Id. at 69; see also id. at 72 (“[W]e hold that KRE 608 permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by criminal conviction is governed solely by KRE 609.”).
In so holding, this Court rejected the exact proposition that Allen now urges, and instead adopted the federal approach as to which subjects are covered by KRE 608 and 609. Id. at 69-70. Thus, under Childers, where the acts in question result in a criminal conviction, they are admissible for character purposes only when KRE 609 allows it. Id.
Under Childers, the acts Allen sought to ask about resulted in convictions and thus are covered only by KRE 609, which only allows inquiry into whether the witness is a convicted felon. If the witness admits the felony conviction, then that is the end of the inquiry; if the witness denies the conviction, then extrinsic proof of the conviction may be admitted. Unlike the federal rule, KRE 609 does not allow proof that the witness was convicted of a non-felony (usually a misdemeanor) involving dishonesty or reflecting on character for dishonesty.
But the inability to inquire in any way about misdemeanor convictions reflecting on dishonesty illustrates a substantial hole in the present KRE 608 – 609 regime. Though it was not necessary to the holding, Childers sought to fill that hole by stating in a footnote that “under Rule 609, evidence of a misdemeanor conviction can never be admitted.” 332 S.W.3d at 71 n.2. Allen urges that this rule should not apply to Weaver’s misdemeanor convictions, in part because Childers was concerned only with felony convictions, if we are not inclined to overrule. Allen’s claim is driven by the assumption that evidence of criminal dishonesty should be admissible, even (and perhaps especially) when it results in a conviction.
This Court agrees that such a result seems to be, simply unfair. Childers allows the absurd result that misdemeanor-level dishonest conduct is admissible under KRE 608(b) if a person were simply lucky enough not to have been convicted (whether because the crime was never charged or the charge was dismissed), but that a person who has actually been convicted of a misdemeanor involving a crime of dishonesty could avoid impeachment.
This, then, requires a closer examination of Childers and its reading of the interplay between KRE 608 and 609. In choosing to reexamine Childers, we are mindful of the constraints of stare decisis and the call that changes to the law of evidence “should occur only after a judicious Darwinian process.” Fisher v. Duckworth, 738 S.W.2d 810, 813 (Ky. 1987). But it is worth noting that Childers was decided by a divided Court. And while the author of this decision joined the majority in that case, we are also mindful that “the doctrine of stare decisis does not commit us to the sanctification of ancient or relatively recent fallacy.” Matheney v. Commonwealth, 191 S.W.3d 599, 604 (Ky. 2006) (quoting Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky. 2002)). As we noted in Morrow, “respect for precedent demands proper reconsideration when we find sound legal reasons to question the correctness of our prior analysis.” 77 S.W.3d at 559.
The question, then, is whether we agree that the analysis in Childers was correct. After substantial reflection, we conclude that it was not completely so.
Nothing in the language of KRE 608 suggests that so long as a proponent does not attempt to prove the conduct involved in a misdemeanor conviction by extrinsic evidence, simple inquiry about that conduct should be unacceptable. KRE 608(b) says nothing about barring “inquiries” into specific behavior, and actually expressly allows them on cross-examination if the behavior reflects on the witness’s character for truthfulness. Instead, the rule only says that such conduct may not be proved by extrinsic evidence, except as allowed under KRE 609.
We held in Childers that this exception to the extrinsic-evidence limit meant that evidence of conduct resulting in a conviction could only be admissible—if at all—under KRE 609. Of course, KRE 609 only allows evidence of felonies, not misdemeanors, and even then only when the witness denies the conviction. We adopted this approach because it follows the model of the federal rules, which our current KRE 608 tracks.
Our KRE 609 differs substantially from its federal counterpart, however, which allows proof of misdemeanor convictions reflecting dishonesty and does not require a denial by the witness before extrinsic evidence of the conviction is admissible. We avoided this discrepancy in Childers by stating that our rules “are significantly similar to their federal counterparts” and that “the discrepancies which exist do not affect our analysis here” because “the thrust of the rules, especially as it concerns this issue, is the same.” Childers, 332 S.W.3d at 81 n.l. This was accurate in regard to convictions, but not as to conduct.
This case illustrates that the federal scheme differs substantially from our rules. The federal 608 and 609 offer a complete system for addressing specific conduct reflecting on dishonesty in a manner that avoids collateral matters while also allowing inquiry into a subject that is very probative of a witness’s truthfulness or dishonesty.
Federal Rule 609 allows extrinsic evidence of any criminal conviction where “establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” Fed. R. Evid. 609. Extrinsic proof of the conviction is allowed because it is the conclusive proof that the witness committed the dishonest act or said the false statement. It works as a sort of collateral estoppel on the issue of the witness’s dishonesty.
Federal Rule 608, like KRE 608, allows inquiry on cross-examination about specific instances of dishonest conduct. It avoids getting into collateral matters by not allowing impeachment by extrinsic evidence after the witness answers. Under this scheme, it makes sense to completely divide conduct that led to a conviction and conduct that did not, because it takes into account the whole of dishonest conduct.
But, as the federal advisory committee noted, “Effective cross-examination demands that some allowance be made for going into matters of this kind.” Fed. R. Evid. 608 Adv. Comm. Notes to Proposed Rules (1972). The only concern is avoiding the substantial possibilities of abuse presented by such collateral matters, which the limits on use of extrinsic evidence are intended to accomplish. Id. But when this Court bars any evidence of misdemeanor conduct that led to a conviction—even when it conclusively proves dishonest conduct—the ability to effectively cross-examine a witness is undermined.
And, it should be noted that this case has both prior felonies and misdemeanors that reflect dishonesty. The misdemeanors—giving a false name to a police officer—are arguably even more convincing than the felony crimes of possession of forged instruments.
Unlike the federal rules, KRE 608 and 609 do not offer a complete system for addressing dishonest conduct and what it says about a witness’s character for truthfulness. Indeed, based on the language in the rules, only 608 is aimed at conduct directly reflecting on truthfulness, but bars extrinsic ‘ proof of that conduct (such as by proof of convictions except as dealt with by KRE 609). KRE 609, on the other hand, is concerned with the fact of any felony conviction, which only indirectly illustrates character for dishonesty if at all.
Thus, unlike the federal rules, the Kentucky rules have a hole in them, as noted above. Our attempt in Childers to fill this hole by adopting the federal treatment of convicted and non-convicted behavior—that is, treating them as falling under mutually exclusive rules—serves only to undermine the ability to cross-examine.
Part of the problem is that it is tempting to conflate the conduct reflecting on dishonesty with a conviction for that conduct. But a conviction is not conduct, at least not by the witness who engaged in the conduct. Rather, the conviction is proof of the conduct, which in turn reflects on the person’s character for truthfulness. The conviction is allowed in some cases because it is the best proof that the person actually engaged in the dishonest conduct, such as when a felon denies he was convicted under KRE 609.
Courts rightfully avoid what amounts to a mini-trial within the trial about whether the person actually committed the dishonest act by carefully scrutinizing collateral evidence, a decision that is well within a trial court’s experience and purview. Rule 608 recognizes the trial court’s exercise of discretion, and substantially limits the inquiry with two safeguards: (1) no extrinsic evidence is allowed, and (2) the inquiry is limited to asking the witness (inquiry) about the conduct on cross-examination. (The inquiry is further limited to conduct that is “probative of truthfulness or untruthfulness.” KRE 608(b).)
Yet, the purpose of KRE 608(b) is to avoid over-collateralizing trials, not to prohibit proper impeachment or effective cross-examination. Thus, the better reading of KRE 608 and 609 would allow some inquiry as to the conduct underlying a criminal conviction, so long as the conduct is probative of truthfulness or untruthfulness. The only question is the limit on that inquiry.
KRE 608 lays out a substantive limit: the conduct must be probative of truthfulness or untruthfulness. As long as the conduct in question is so probative, whether it resulted in a criminal conviction or not, the court may, in its discretion, allow inquiry into it but not extrinsic proof of the conviction itself. KRE 608 also lays out two procedural safeguards: the conduct cannot be proved with extrinsic evidence, and may only be inquired into on cross-examination.
This could suggest a conflict between the intent of KRE 608 and 609. For example, a defendant could ask a witness like the one in this case whether he had been convicted of a felony under KRE 609, to which he says “yes,” with the very next question being about the conduct involved in that felony under KRE 608 (for example, possession of counterfeit money). This would lead to the inference that the felony conviction was for possession of counterfeit money, thereby impliedly disclosing that the witness has been convicted of that offense in violation of KRE 609.
While this use of the rules shows how KRE 608 could be used to inquire into a subject that may not be inquired into under KRE 609, this does not mean that the inquiry is forbidden or unfair. The simple fact is that KRE 608 allows inquiry on cross-examination as to bad acts—with the limit being that the questioner is stuck with the answer, whatever it is. That such an inquiry may follow on the heels of a KRE 609 inquiry into whether the witness has a felony conviction, thereby leading the jury to believe that the bad act asked about was the basis for the felony conviction, is not barred by the rules. If this could mislead the jury—for example, if the bad act asked about under KRE 608 was not the basis for the conviction asked about under KRE 609—then a well-timed objection will allow the trial court to exercise its discretion to require handling the evidence in a fair and truthful manner.
On the other hand, if the witness denied the conviction when asked about it under KRE 609, and the defendant offered extrinsic proof of it, then KRE 608′s proscription on extrinsic proof would appear to be violated. But this concern is illusory, since KRE 608 specifically excepts proof of a conviction
under KRE 609, which in turn allows proof of a felony conviction with extrinsic evidence, if the witness denies the conviction’s existence.
Ultimately, the scope of any inquiry under KRE 608 and 609 remains within the trial court’s discretion, subject of course to limits imposed by other rules, such as KRE 403. The trial court is always empowered to prevent misuse of these rules when necessary, possibly by separating the inquiries, clearly showing what is being asked about, or, if necessary, instructing the jury how it may consider the evidence. This is not an uncommon task for trial courts and counsel.
The final question is how this applies to Allen’s case. Allen was able to introduce the fact that Weaver had been convicted of a felony (the 25 counts of possession of a forged instrument). However, she was not allowed the choice to instead ask about the conduct that led to those convictions.
More importantly, Weaver’s other convictions at issue in this case were misdemeanors (two counts of giving a false name to police), and no proof of those was allowed. The conduct underlying those convictions tends to show that he had previous acts of deception—direct lies to police. That conduct was subject to inquiry under KRE 608(b), though not to proof by extrinsic evidence; the fact of the misdemeanor convictions themselves was not admissible under either KRE 608 or 609. While Allen could not ask about or otherwise show that this conduct led to a conviction, she should have been permitted to ask Weaver if he had previously lied to police.
This error, however, does not automatically require reversal. Like all evidentiary errors, it is subject to the harmless error rule, RCr 9.24. The test for harmlessness is whether the error substantially swayed the verdict. Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009). “The inquiry is not simply ‘whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)) (alteration in original). We cannot say that the error in this case did not have a substantial influence on the verdict and, at the very least, we are left in grave doubt.
Before turning to the merits this claim, a preliminary matter must be addressed. Since Allen’s convictions are reversed for other reasons, some aspects of this claim should be only addressed because the issue it raises is likely to recur if she is retried. Terry v. Commonwealth, 153 S.W.3d 794, 797 (Ky. 2005). Additionally, the decision above allowing a criminal defendant in some circumstances to inquire about specific acts reflecting on truthfulness and for which the witness was convicted of a criminal act does not completely render this claim moot. The type of evidence covered by the decision above is pure character evidence, offered solely to assail the credibility of the witness. Such evidence has a limited use. Evidence of other crimes or bad acts offered for other purposes, as under KRE 404(b), “is called character for substantive use.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.20, at 299 n.l (4th ed. 2003). Such evidence may be used differently and has fewer limitations on how it may be introduced than pure character evidence. Moreover, KRE 404(b) can be an alternative route for admitting evidence that is not admissible under other rules like KRE 608. See Blair v. Commonwealth, 144 S.W.3d 801, 810 (Ky. 2004).
This may seem in tension with the decision above allowing use of the forgery charge as evidence of character under KRE 608, but it is not. The distinction is that the evidence would be used for a different purpose here. The decision above would allow use of the forgery convictions as proof of character for truthfulness. Here, Allen seeks to use the convictions to show modus operandi, which in turn would show the identity of the person she claims actually signed for the truck (and committed forgery in the process). As just noted, the modus operandi rules require a great deal of specificity, whereas when we are concerned only with the issue of a witness’s credibility, the proof need only touch directly and substantially on credibility. Unlike modus operandi, this can be shown by crimes that are substantially different from what the witness is presently accused of. Indeed, when the prior crime is used solely to show character, there may not even be a current accusation against the witness other than that he is not telling the truth on the witness stand.
As to the claim that Weaver’s prior convictions for lying to police officers were admissible to show that he lied to the officers who investigated Allen, it suffices to say that such a showing is irrelevant. Whether Weaver lied in the course of the investigation was not at the core of Allen’s defense. She was more concerned with whether he lied on the stand at trial. But use of his prior bad acts to show that is not a substantive use; that is pure character evidence, which is not controlled by KRE 404(b), but by KRE 608 and 609 (and the decision above). Thus, Allen was not entitled to admit proof of those acts for substantive use under KRE 404(b)
Because Allen was entitled to cross-examine Curtis Weaver about his prior convictions involving dishonest acts under KRE 608(b), and the trial court disallowed the inquiry, her convictions are reversed.
MINTON, C.J., CONCURRING IN RESULT ONLY: I concur with the majority in result only because I disagree with the majority’s interpretation of Kentucky Rules of Evidence (KRE) 608(b) and 609. But because application of KRE 608(b) and 609 to this case violates Allen’s due process right to present a defense, I concur in the majority’s result—remanding the case for a new trial.
Respectfully, I disagree with that portion of the majority’s opinion in effect amending KRE 608 and 609. I would read the rules consistent with this Court’s recent opinion in Childers v. Commonwealth. KRE 609 exclusively regulates witness impeachment relating to a prior conviction, and KRE 608(b) deals exclusively with impeachment using conduct related to truthfulness that did not lead to a criminal conviction.