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In This Issue:The 50th Anniversary of Gideon v. Wainwright

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50th Anniversary of Gideon v. Wainwright

7 Hugo’s TrumpetBy Luke M. Milligan

11 The History of the Right to Counsel for the Indigent Accused in KentuckyBy Robert C. Ewald, Daniel T. Goyette, Erwin W. Lewis, Edward C. Monahan

19 The Cost of Representation Compared to the Cost of Incarceration: How Defense Lawyers Reduce the Costs of Running the Criminal Justice SystemBy John P. Gross and Jerry J. Cox

24 Lawyers are Essential in Making “Justice for All” A RealityBy Chief Justice John D. Minton, Jr.

This issue of the Kentucky BarAssociation’s Bench & Bar was published in the month of March.

Communications & Publications CommitteeFrances Catron Cadle, Chair, LexingtonPaul Alley, FlorenceElizabeth M. Bass, LexingtonZachary M.A. Becker, FrankfortJames P. Dady, BellevueJudith D. Fischer, LouisvilleCathy W. Franck, CrestwoodWilliam R. Garmer, LexingtonP. Franklin Heaberlin, PrestonsburgJudith B. Hoge, LouisvilleBernadette Z. Leveridge, JamestownTheodore T. Myre, Jr., LouisvilleEileen M. O’Brien, LexingtonRichard M. Rawdon, Jr., GeorgetownSandra J. Reeves, Corbin E.P. Barlow Ropp, GlasgowR. Kelley Rosenbaum, LexingtonGerald R. Toner, LouisvilleSadhna True, LexingtonMichele M. Whittington, Frankfort

PublisherJohn D. Meyers

EditorFrances Catron Cadle

Managing EditorShannon H. Roberts

LayoutDavid Kaplan • [email protected]

The Bench & Bar (ISSN-1521-6497) ispublished bi-monthly by the Kentucky BarAssociation, 514 West Main Street, Frankfort,KY 40601-1812. Periodicals Postage paid atFrankfort, KY and additional mailing offices.

All manuscripts for publication should besent to the Managing Editor. Permission isgranted for reproduction with credit.Publication of any article or statement is notto be deemed an endorsement of the viewsexpressed therein by the Kentucky BarAssociation.

Subscription Price: $20 per year. Memberssubscription is included in annual dues and isnot less than 50% of the lowest subscriptionprice paid by subscribers. For more informa-tion, call 502-564-3795.

POSTMASTERSend address changes to:Bench & Bar514 West Main StreetFrankfort, KY 40601-1812

C O N T E N T S

Columns

3 President’s Page By W. Douglas Myers

6 YLD By Jackie Sue Wright

26 Shop Talk By Michael Losavio

27 Effective Legal Writing By Phillip M. Sparkes

Items of Interest

4 2013 Annual Convention Overview30 Attorneys Who Reported 50 or More Pro Bono Hours32 Ethics Opinion KBA E-43434 Ethics Opinion KBA E-43536 Unauthorized Practice of Law Opinion KBA U-6437 Information from Kentucky Bar Association’s Audit38 Resolution 40 Judicial Ethics Opinion JE-12343 Order Amending Rules of the Supreme Court (SCR)44 Kentucky Bar News48 KYLAP To Partner with LMICK for Ethics Program49 In Memoriam50 Kentucky Bar Foundation 51 CLE58 Who, What, When & Where

Cover photos reprinted with permission courtesy of the State Archives of Florida.

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Access the Kentucky Bar Association’s CAREER CENTER atwww.kybar.org/720

JOB SEEKERS,YOUR NEXTCAREER OPPORTUNITYCOULD BE CLOSERTHAN YOU THINK.

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March 2013 Bench & Bar 3

PRESIDENT’S PAGE

Sometime in the early morning ofJune 3, 1961, a burglary occurred at

the Bay Harbor Pool Room in PanamaCity, Fla. The burglar broke a door,smashed a cigarette machine and arecord player, and stole money from acash register. Police arrested ClarenceEarl Gideon after he was found near thescene with a pint of wine and somechange in his pockets. Later that day, awitness reported that he had seenGideon in the pool room at around 5:30a.m. Based on these facts, the policearrested Gideon and charged him withbreaking and entering with intent tocommit petty larceny.

Gideon, who could not afford alawyer, asked the Florida circuit judgeto appoint one for him arguing that theSixth Amendment entitles everyone to alawyer. His request was denied. Gideon,therefore, was forced to act as his owncounsel and conduct the defense at histrial. Gideon was unsuccessful in hisdefense and was found guilty ofbreaking and entering and petty larceny.He was sentenced to five years in thestate prison.

While serving his sentence in theFlorida State Prison, Gideon beganstudying law. His studies reaffirmed hisbelief that his rights were violatedwhen the Florida Circuit Court refusedhis request for counsel. From hisprison cell, he handwrote a petitionasking the United States SupremeCourt to hear his case. He argued thathe had been denied counsel and,

therefore, his Sixth Amendment rights,as applied to the states by theFourteenth Amendment, had beenviolated.

The Supreme Court assigned him aprominent Washington, D.C., attorney,Abe Fortis, of the law firm of Arnold,Fortis & Porter, and a future SupremeCourt Justice. The Court, after hearingarguments, unanimously ruled inGideon’s favor stating that the SixthAmendment requires state courts toprovide attorneys for criminaldefendants who cannot otherwise affordcounsel.

The final decision was announced onMarch 18, 1963. We are nowcelebrating 50 years of the “right tocounsel” in the United States asguaranteed by the Sixth Amendment.

Many changes have come about inthe prosecution and representation ofindigent defendants since the ruling inGideon. The decision in many wayscreated and in other ways expanded thepublic defender system. The need formore resources for public defenders inorder to comply with the mandate ofGideon has not been met, especially inthe areas of case loads and staffing,notably those with the unique trainingand qualifications necessary for theproper defense of capital cases. TheAmerican Bar Association and theNational Legal Aid and DefenderAssociation have now set minimumtraining requirements, case load levels,and experience requirements for its

lawyers. We must endorse thoserequirements and advocate theirimplementation in Kentucky’s justicesystem.

It is my pleasure to join in thecelebration of this anniversary of theGideon decision. I must point out,however, that it is the responsibility ofall the members of the Kentucky BarAssociation (KBA) to take steps topromote the right to counsel and make itmeaningful for all citizens of theCommonwealth. This right to counsel isthreatened any time we have inadequatefunding for our public defender system.Also of significance is the woeful lackof funding support for payment ofconflict counsel to augment the publicdefender system.

The mission of the KBA includes theresponsibility to promote the efficiencyand improvement of the judicial system.This requires us to make efforts toassure the right to counsel to allcitizens, no matter their financialcircumstance. The quality of justice inour courts will suffer, and the needs andinterests of judges, prosecutors, victimsand the indigent accused will bejeopardized unless the public defendersystem is adequately funded, staffed andsupported. As lawyers, we must takeappropriate steps to support fundingefforts.

While we celebrate the Gideondecision and the affirmation of the rightto counsel for all defendants, we mustremain vigilant to protect this right.

Doug Myers

RIGHT TO COUNSEL – CELEBRATING 50 YEARS

OF GIDEON V. WAINWRIGHT

“If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell . . . to write a letter to theSupreme Court . . . the vast machinery of American law would have gone on functioning undisturbed. But Gideon didwrite the letter, the Court did look into the case . . . and the whole course of American legal history has changed”

– Robert F. Kennedy

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DAVID BOIES AND THEODORE B. OLSON TO SERVE AS FEATURED SPEAKERS ON OPENING DAY

The Kentucky Bar Association will o�er a wide variety of CLE programming of interest topractitioners across the Commonwealth during its 2013 Annual Convention at the Galt House Hotel in historic downtown Louisville, Wednesday, June 19, through Friday,June 21. This year’s convention theme, “Preserving Justice,” recognizes the importance of adequate funding for state courts; the 40th anniversary of the creation of the Kentucky Department of Public Advocacy in 2012; and this year’s 50th anniversary of the Supreme Court of the United States’landmark decision in Gideon v. Wainwright requiring state courts toprovide counsel in criminal cases for indigent defendants.

The 2013 convention will showcase three excellent featured programs organized through the dedicated e�orts of the KBA Convention CLE Committee chaired by Richard Hay of Somerset. Additionally, the KBA extends its thanks to the 2013 Annual Convention Planning Committee Co-Chairs John Bilby, Douglass Farnsley, and Bobby C. Simpson, all of Louisville, for their leadership in guiding the committee in preparation for what promises to be an educational, exciting and entertaining event.

2013 KBA Annual CKBA 2013 ANNUAL CONVENTION: “PRESERVING JUSTICE,” JUNE 19-21, GALT HOUSE HOTEL, LOUISVILLE

Famed litigators David Boies and Theodore B. Olson will serve as the featured speakers on Wednesday, June 19, the �rst day of the KBA’s 2013 Annual Convention. The two men, once adversaries in the case of Bush v.Gore, have teamed in recent years to represent the plainti�s in the historic civil rights litigation concerning California’s Prop 8 same-sex marriage ban. The case, Hollingsworth v. Perry, will be argued before the Supreme Court of the United States on March 26.

In 2010, Time Magazine selected Boies and Olson as two of the 100 most in�uential people in the world.Additionally, in 2011, the two men received the American Bar Association’s highest award, the ABA Medal, recognizing “exceptionally distinguished service by a lawyer or lawyers to the cause of American jurisprudence.”

Boies is the founder and chairman of Boies, Schiller & Flexner LLP, in Armonk, N.Y. In 1998-2000, Boies served as special trial counsel for the U.S. Department of Justice in its antitrust suit against Microsoft. He also served as lead counsel for former Vice President Al Gore in litigation relating to the 2000 election Florida vote count. In 2008, Boies successfully defended NASCAR against antitrust charges, and in 2010 and 2011, he represented plainti�s suing to enjoin California’s ban on gay marriage as a violation of the federal Constitution.

Olson is a partner in Gibson, Dunn & Crutcher’s Washington, D.C., o�ce, and is one of the nation’s premier appellate and U.S. Supreme Court advocates. The National Law Journal has repeatedly listed him as one of America’s Most In�uential Lawyers. The American Lawyer and Legal Times have characterized Olson as one of America’s leading litigators. Olson was Solicitor General of the United States from 2001–2004, and from

1981–1984 he was Assistant Attorney General in charge of the O�ce of Legal Counsel in the U.S. Department of Justice. He has argued dozens of cases before the U.S. Supreme Court, including the two Bush v. Gore cases arising from the 2000 presidential election.

4 Bench & Bar March 2013

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JEFFREY TOOBIN, NATIONAL LEGAL ANALYST AND AUTHOR, TO DISCUSS LAW, POLITICS AND THE MEDIA ON THURSDAY, JUNE 20

“THE HATFIELDS AND McCOYS: FROM FILING SUITS TO FIRING SHOTS” TO CLOSE OUT FEATURED CONVENTION PROGRAMMING ON FRIDAY, JUNE 21

The KBA will o�er as its third day of featured programming “The Hat�elds and McCoys: From Filing Suits to Firing Shots,”an in-depth discussion of the infamous family feud that captured the interest of the nation and cast long shadows on the reputation of an entire region of the country. The feud, centered along the Tug Fork of the Big Sandy River on the Kentucky-West Virginia border, spawned countless articles, studies, books, movies and television shows, but did these tell the true story, the complete story? Join our panel members on Friday, June 21, as they discuss the complicated story of the two families; the role that coal companies, timber and mining rights played in the feud; the Mahon v. Justice extradition case sparked by the feud that made it all the way to the Supreme Court of the United States; and the portrayal of the feud in movies and media. The panelists will include historical consultant and local expert Bill Richardson; constitutional law professor Paul Salamanca; author and history professor Altina Waller; and Darrell Fetty, producer of the recent award-winning History Channel miniseries, “Hat�elds & McCoys.”

National legal analyst and author Je�rey Toobin will discuss American law, politics and the media, while providing a unique look at the inner workings of the Supreme Court of the United States, as the convention’s featured speaker on Thursday, June 20.

Toobin is a sta� writer at The New Yorker and a senior legal analyst at CNN. The author of critically acclaimed best sellers, Toobin delved into the historical, political and personal inner workings of the Supreme Court and its justices in his book The Nine: Inside the Secret World of the Supreme Court. The Nine spent more than four months on the New YorkTimes Best Seller list and was named one of the best books of the year by Time, Newsweek, Entertainment Weekly and the Economist. His newest book, The Oath: The Obama White House and the Supreme Court, a sequel to The Nine, is a gripping insider’s account of the momentous ideological war between the John Roberts Supreme Court and the Obama administration. The Oath was released in September, 2012.

Toobin is also the author of renowned bestseller Too Close to Call: The 36-Day Battle to Decide the 2000 Election, the de�nitive story of the Bush-Gore presidential recount and the basis for an HBO movie. With clarity, insight, humor and a deep understanding of the law, Toobin deconstructs the events, the players and the often-Byzantine intricacies of our judicial system, ending up with a remarkable account of one of the most signi�cant periods in our nation’s history.

The KentuckyBar Associationwill celebratethe lives andlegacies ofthose KBAmembers whohave passedsince June 1, 2012, during its 22ndannual Memorial Service planned for3:30 p.m., Tuesday, June 18, at theCathedral of the Assumption, 433South Fifth Street, Louisville.

While the memorial service in recentyears has been held on Thursdayduring convention week, its moveto Tuesday should encouragemore participation and prevent acon�ict for members who are busyattending CLE activities later in theweek, according to KBA ConventionPlanning Committee Member CharlieRicketts.

“It’s our hope that our membersarriving in town just prior to theconvention, and those who aresituated locally, will join us for thisbeautiful, ecumenical service heldin honor of our fellow Kentuckyattorneys who have passed,” Rickettssaid. “The service honors thoseindividuals who have served for themost part of their entire lives in thepursuit of justice. The meting outand pursuit of justice is an honorablevocation, and by recognizing theseindividuals in a clerical atmosphere,we solemnify to the largest possibledegree the closeness between thelaw we know as man and the law thatis imposed upon us by the Almighty.”

Ricketts said the dignity of the eventwill be underscored by SupremeCourt of Kentucky justices dressed intheir robes. Additionally, members ofthe Kentucky Court of Appeals andlocal Circuit and District Court judgeshave been invited to attend. Theservice will feature various musicalselections and will be o�ciated byrepresentatives from di�erent faiths.Family members of the deceasedwill receive personal invitations, butall KBA members are encouraged toattend.

KBA MEMORIAL SERVICE TO BE HELD ON TUESDAY, JUNE 18

Convention

Hat�eld family photo courtesy ofWest Virginia State Archives.


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By Jackie Sue Wright, Chair, KBA Young Lawyers Division

I recently read an inspiring bookhumorously written by an attorney

born and primarily raised in Kentucky.You Can’t Teach Hungry, by JohnMorgan, details a foundation forbuilding a multi-million-dollar lawfirm by focusing on the fact that manymodern law offices have no real plan!It is his observation that most lawyersdo not run their practice like abusiness and in the book he givessuggestions for exercises, meetings,events and management tools that maybe helpful to move to a more formalbusiness strategy. He will have youlaughing out loud with his manyanimal analogies and you will bestartled with thought provoking selfassessments as he convinces you thatyou should be building your law firmas The Greatest Show on Earth, notjust a petting zoo!

The author outlines several conceptsin the book and applies them to theconcept of building a law firm. Asummary of a few I found particularlyinteresting include: (1) Plant your treetoday. The best day to plant a tree was20 years ago, the next best day is today.(2) The parable of the Tortoise and theHare: nothing is about today, everythingis about tomorrow. This is a long race.(3) Knowing everything you knowabout your firm, would you hire you?Don’t bring a knife to a gun fight. (4) You are your own stock market.Your best investment is in yourself.

He also describes small details thatare often overlooked by law firms thatshould be no-brainers, such asdeveloping a system for intake of newcases, making sure your name is listedin phone directories of adjoining towns,making sure you have the rightreceptionist as the guardian of your

firm, and other “back of the house”details that could be costing youmillions.

Morgan also discusses commonthreads that define great companies thathave collapsed, which include theinability of the leaders in the firm torecognize certain young lawyers as truesuperstars and instead always seeingthat lawyer as an associate or afledgling wannabe. On the other hand,he describes the importance ofrecognizing the cancer cells of a firmand effectively dealing with them beforethey infect the entire firm with theirnegativity, creating a corrosiveenvironment.

Below is an excerpt from a phoneinterview I conducted with the author,John Morgan:JSW: One of the exercises you

suggest is rating every staff person andattorneys in groups of A-B-C, where theA’s must be kept at all costs and the C’s,who will be counter productive ifallowed to continue, as they bring novalue to the firm. What do you see asthe main difference in A level and Clevel attorneys?JM: The difference between the two

levels of attorneys is work ethic. Theharder you work, the better you will do.Even if you can’t outsmart someone, itis always possible to outwork them. JSW: With that in mind, how do you

recommend striking a work/lifebalance?

JM: If you work hard, you can havethe nice things that are important foryour personal life. I have noticed thatyoung lawyers today, they want lessmaterial things in exchange for moretime for their personal life. But moretime for what? That’s what you have todecide on a personal basis. Do youneed money and time for a vacation,more time to exercise during the day,more time to participate in yourchildren’s school activities? How canyou best use the time you have awayfrom work?JSW: You state that for each of us,

our best investment is in ourselves. Foran attorney five-10 years into theircareer, what do you suggest is animportant self-investment?JM: Spend time to make sure your

core competence is better than everyoneelse. Create your own network ofbusiness so as to not be dependent onothers. Most attorneys sit back and waitfor momma bird to drop worms intotheir mouths. Figure out a way to growup and get out of the nest before thehawk swoops in and gets you!

If you are interested in changing theculture of your law firm to be moreproductive, profitable and efficient, Iencourage you to read what JohnMorgan has to say in his first book, YouCan’t Teach Hungry. You will find thatKNOWLEDGE IS POWER and youmust SWIM UPSTREAM to reach dryland and the best, fertile soil!

2012-2013 YLD Executive CommitteeChair: Jackie Sue WrightChair-Elect: Carl Frazier

Vice-Chair: Adrienne Godfrey ThakurSecretary/Treasurer: Brad Sayles

YOU CAN’T TEACH HUNGRY


By Luke M. Milligan

nthony Lewis’s book on the con-stitutional right to counsel,Gideon’s Trumpet, is rightly

regarded as a fine and important work ofnon-fiction literature.1 Yet regrettably,Lewis’s narrative centers on a particulardefendant (Clarence Gideon), and to alesser extent, his able team of pro bonolawyers (led by Abe Fortas). With allrespect to Lewis, it seems he confusedthe lead and supporting roles, for thehero of this particular constitutionalstory is undoubtedly Justice Hugo Black.

The Sixth Amendment, at firstglance, reads clearly enough. It providesthat “[i]n all criminal prosecutions, theaccused shall enjoy the right . . . to havethe Assistance of Counsel for hisdefense.”2 But on reflection the textinvites interpretation. The word “have”emerges as particularly troublesome.Does “have,” in this context, mean “beprovided with,” or rather “not bedenied?” Put differently: Does the SixthAmendment recognize a right to theassistance of appointed counsel? Orsimply a right to the assistance ofretained counsel? Setting aside its his-torical pedigree, the text can be readeither way.

The Supreme Court resolved theambiguity in 1938’s Johnson v. Zerbst.3

Justice Black, newly confirmed to theCourt, authored the majority opinionidentifying a constitutional right toappointed counsel.4 He wrote that theSixth Amendment “withholds from fed-eral courts, in all criminal proceedings,the power and authority to deprive anaccused of his life or liberty unless hehas or waives counsel.” Black avoidedany discussion of the Amendment’soriginal meaning (striking, in hindsight,for a justice who would eventually beregarded as the leading originalist of hisgeneration).5 Johnson instead turned on“a realistic recognition” of an “obvioustruth”: that the “average defendant does

not have the professional legal skills toprotect himself when brought before atribunal with power to take his life orliberty.”

But bold constitutional interpretationsdo not always make for bold policyreform.6 Johnson was limited to federalprosecutions. And then, as today, thegreat majority of criminal cases arebrought by state or local governments. Ineffect, Black’s liberal constitutional inter-pretation in Johnson was a necessary, butinsufficient, condition for large-scale lib-eral policy reform concerning indigentcriminal defendants. He understood thatsignificant change would require, atsome point in the near future, a secondholding: that the right to appointed coun-sel had been “incorporated” through theFourteenth Amendment to state and localgovernments.7

The question of incorporation dividedthe Court. Black’s view, known as “totalincorporation,” provided that the Bill ofRights applied in whole to state andlocal governments.8 The contending the-ory, “selective incorporation,” advancedby Justices Cardozo, Frankfurter, andJackson, emphasized context: incorpora-tion was to be confined to those rightsessential to “fundamental fairness.”9

Four years after Johnson, theSupreme Court voted 6-3 against incor-poration of the right to appointedcounsel.10 Employing “selective incor-poration,” the majority in Betts v. Bradyheld that the right to counsel was not“fundamental.” It identified “a greatdiversity” in the founding-era lawsregarding counsel and explained thatstate constitutions were limited to “theprivilege of representation by counsel.”In dissent, Justice Black criticized themajority’s use of “selective incorpora-tion.” He then argued that “selectiveincorporation,” while theoreticallyflawed, nonetheless required incorpora-tion of the “fundamental” right toappointed counsel. Black explained thata practice “which subjects innocent

men to increased dangers of convictionmerely because of their poverty” cannotbe “reconciled with common and fun-damental ideas of fairness and right.”Anything less, he observed, defeats “thepromise of our democratic society toprovide equal justice under the law.” Inconclusion, Black pointed out thatunder the laws of most states, “no manshall be deprived of counsel merelybecause of his poverty.” To his opinionhe attached an appendix listing statestatutes, judicial opinions, and constitu-tional clauses providing for appointedcounsel.

From Justice Black’s perspective, thecorrect reading of the Sixth Amendmentin Johnson had been effectively neutral-ized by his colleagues’ flawed readingof the Fourteenth in Betts. Thisremained the state of constitutional lawwhen, some 20 years later, ClarenceGideon was hauled into Florida statecourt on a felony burglary charge.11

With neither a lawyer nor funds forone, Gideon asked that counsel beappointed to assist him at his trial. Thecourt stenographer documented the fol-lowing exchange:

Trial Judge: Mr. Gideon, I amsorry, but I cannot appoint Coun-sel to represent you in this case.Under the laws of the State ofFlorida, the only time the Courtcan appoint Counsel to representa Defendant is when that personis charged with a capital offense. Iam sorry, but I will have to denyyour request to appoint Counselto defend you in this case. Gideon: The United StatesSupreme Court says I’m entitledto be represented by counsel.

His request for appointed counselrefused, Gideon ultimately representedhimself at trial (and, as the SupremeCourt later put it, did “about as well ascould be expected from a layman”).12

The jury found him guilty and he wassentenced to five years in state prison.While in prison Gideon drafted ahabeas petition. He challenged his con-viction and sentence on the ground thatthe Florida trial court’s refusal toappoint him counsel violated his rights

A

50TH ANNIVERSARY OF GIDEON V. WAINWRIGHT

HUGO’S TRUMPET

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“guaranteed by the Constitution andBill of Rights of the United States Gov-ernment.” After habeas relief wasdenied by the Florida courts, Gideonpetitioned the United States SupremeCourt, which granted certiorari in orderto give “another review” to Betts’sholding that the right to counsel wasnot “fundamental.”13

Twenty-one years had passed sinceJustice Black lost the incorporation bat-tle in Betts. But during that span of timemuch had changed. None of the six jus-tices in the Betts majority remained onthe Court. Moreover, state practicesconcerning indigent defendants hadevolved. By the time Gideon wasargued, 35 states recognized a right toappointment of counsel in even non-capital cases. And twenty-two stateattorneys general signed an amicus briefstating that Betts “is at odds with thetwentieth century notions of ordered lib-erty as it comprehends the right tocounsel.”14 In this new environment,Justice Black had little trouble finding amajority to overrule Betts. And to noone’s surprise, Chief Justice Warrenassigned the opinion to Black.15

Gideon holds that the Sixth Amend-ment right to appointed counsel is“fundamental” and thereby incorporatedthrough the Fourteenth Amendment tostate and local governments.16 Black’smajority opinion is relatively short, and,in terms of substance, more or less arestatement of the ideas he developed in

his Johnson and Betts opinions.17 Itoffers three lines of reasoning. First,Betts made “an abrupt break” with theCourt’s “well considered precedents.”18

Second, Betts denied “obvious truths”revealed through “reason and reflection”about the need for representation inmodern criminal prosecutions. Theclaim that lawyers are “necessities, notluxuries,” wrote Black, is best demon-strated by the fact “[t]hat governmenthires lawyers to prosecute and defen-dants who have the money hire lawyersto defend.” Third, Betts failed to realizethe nexus between the right to appointedcounsel and the framers’ “noble ideal”of “fair trials before impartial tri-bunals.” Quoting the “moving words”of Justice Sutherland, Black wrote:

The right to be heard would be, inmany cases, of little avail if it didnot comprehend the right to beheard by counsel. Even the intel-ligent and educated layman hassmall and sometimes no skill inthe science of law. If chargedwith crime, he is incapable, gen-erally, of determining for himselfwhether the indictment is good orbad. He is unfamiliar with therules of evidence. Left withoutthe aid of counsel, he may be puton trial without a proper charge,and convicted upon incompetentevidence, or evidence irrelevantto the issue or otherwise inadmis-sible. He lacks both the skill and

knowledge adequately to preparehis defense, even though he havea perfect one. He requires theguiding hand of counsel at everystep in the proceedings againsthim. Without it, though he be notguilty, he faces the danger of con-viction because he does not knowhow to establish his innocence.19

The majority concluded that the rightto appointed counsel applied to stateand local governments. As a result,Gideon’s un-counseled Florida convic-tion was vacated (and several monthslater, on retrial with the assistance ofcounsel, Gideon was acquitted.)

When we reflect on the developmentof the right to appointed counsel, itseems a mistake to elevate the roles ofGideon or Fortas over that of JusticeBlack. Throughout his judicial career,Black remained firm in his belief thatthe right to appointed counsel was a

Luke Milligan isa law professorat the Universityof LouisvilleLouis D. Bran-deis School ofLaw. He teachescourses in crim-inal law and

constitutional law. Milligan was alitigator at the Washington, D.C.,law firm of Williams & Connolly.His practice focused on white-collarcriminal defense and complex civillitigation matters. Before joiningWilliams & Connolly, he served aslaw clerk to Judge Edith BrownClement of the U.S. Court ofAppeals for the Fifth Circuit andJudge Martin L.C. Feldman of theU.S. District Court for the EasternDistrict of Louisiana. Milligan is anhonors graduate of Emory LawSchool, where he was articles editorof the Emory Law Journal. He alsoworked on antitrust investigationsat the U.S. Department of Justiceand death penalty matters at theCarter Center. Milligan is a memberof Kentucky’s Public AdvocacyCommission. The UofL law alumninamed him Professor of the Year in2012.

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necessity for all indigent defendants. Atmany points after Betts, Black sus-pected that large-scale constitutionalreform concerning indigent defendantswas a lost cause. “I never thought I’dlive to see [Betts] overruled,” he wouldsay privately.20 But he pressed on. Hewatched his colleagues, one by one,leave the Court. He worked to persuadeeach newly confirmed justice. Whenthe appropriate case arose (Gideon’s),Black and his new majority actedswiftly. And through that case JusticeBlack was able, at last, to extend thedecades-long promise of Johnson to anew, and far larger, class of indigentcriminal defendants. Fifty years later,the discipline, patience, and empathy ofJustice Black remain worthy of ourrecognition.

ENDNOTES1. ANTHONY LEWIS, GIDEON’S TRUM-

PET (Random House 1964).2. U.S. CONST. amend. VI.3. 304 U.S. 458 (1938).4. Black was confirmed in 1937. He

had most previously been the sen-ior U.S. Senator from Alabama.

5. Cf. Betts v. Brady, 316 U.S. 455,466 (1942) (“[I]t is evident that the[state] constitutional provisions . . .were intended to do away with therules which denied representation,in whole or in part, by counsel incriminal prosecutions, but were notaimed to compel the State to pro-vide counsel for a defendant.”).

6. See, e.g., NEAL DEVINS & LOUIS

FISHER, THE DEMOCRATIC CONSTI-TUTION (2004); Luke M. Milligan,Congressional End-Run: TheIgnored Constraint on JudicialReview, 45 GA. L. REV. 211 (2010).

7. The Fourteenth Amendment, inpertinent part, reads: “nor shall anyState deprive any person of life,liberty, or property, without dueprocess of law; nor deny to anyperson within its jurisdiction theequal protection of the laws.” U.S.CONST. amend. XIV.

8. See Adamson v. California, 332U.S. 46, 72 (1947) (Black, J., dis-senting) (“My study of thehistorical events that culminated inthe Fourteenth Amendment, and the

expressions of those who sponsoredand favored, as well as those whoopposed, its submission and pas-sage persuades me that one of thechief objects that the provisions ofthe Amendment’s first section, sep-arately and as a whole, wereintended to accomplish was tomake the Bill of Rights, applicableto the states.”).

9. Palko v. Connecticutt, 302 U.S. 319(1937). To decide whether a right is“fundamental,” the Court explainedthat courts must consider “relevantdata on the subject . . . afforded byconstitutional and statutory provi-sions subsisting in the colonies andthe states prior to the inclusion ofthe Bill of Rights in the nationalConstitution, and in the constitu-tional, legislative, and judicialhistory of the States to the presentcase.” Betts, 316 U.S. at 465.

10. Betts v. Brady, 316 U.S. 455(1942).

11. Nonetheless the aspects of the rightto counsel deemed necessary to dueprocess had been broadened by theCourt in the years between Bettsand Gideon. See, e.g., Hamilton v.Alabama, 368 U.S. 52 (1961)(“When one pleads to a capitalcharge without benefit of counsel,we do not stop to determinewhether prejudice resulted.”).

12. At his trial Gideon “made an open-ing statement . . . , cross-examinedthe State’s witnesses, presentedwitnesses in his own defense,declined to testify himself, andmade a short closing argument . . . .Gideon v. Wainwright, 372 U.S.335, 337 (1963).

13. To assist Gideon in the preparationof his argument the Courtappointed noted D.C. lawyer (andfuture Justice) Abe Fortas.

14. See Brief for the State GovernmentAmici Curiae, Gideon v. Wainwright,372 U.S. 335, 337 (1963), at *2.

15. 372 U.S. 335 (1963).16. In order to keep his majority, Black

compromised on his preferredmethodology of “total incorpora-tion.”

17. Black’s majority opinion wassigned by Chief Justice Warren,and Justices Brennan, Stewart,White, and Goldberg. Justices Dou-glas, Clark, and Harlan eachauthored separate concurring opin-ions.

18. Citing Johnson v. Zerbst, 304 U.S.458 (1938); Grossjean v. AmericanPress Corp., 297 U.S. 233 (1936);Powell v. Alabama, 287 U.S. 45(1932).

19. Gideon, 372 U.S. at 344-45 (quot-ing Powell, 287 U.S. at 68-69).

20. Lewis, supra at 201, n. 1.



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By Robert C. Ewald, Daniel T.Goyette, Erwin W. Lewis, Edward C. Monahan

he history of the provision andassistance of counsel in our Com-monwealth is a long and tortuous

one. Reviewing that history elucidatesthe social and moral meaning of the fun-damental right to counsel and itsimportance to our justice system.1 It alsoprovides perspective on the indigentdefense system that exists today through-out the Commonwealth, and serves as ameans of encouraging improvement andenergizing further progress.

THE TORTUOUS PATH TO PROVIDINGCOMPENSATED COUNSEL FOR THEINDIGENT ACCUSED

When Kentucky entered the Unionon June 1, 1792, the United States Con-stitution’s Sixth Amendment2 providedfor the right to counsel. Kentucky’sfirst3 and subsequent Constitutions4 pro-vided for the right to counsel in criminalproceedings.

Kentucky’s highest court has longrecognized the importance and necessityof the right to counsel, stating in 1918that it is “an ‘inherent and inalienableright’ that no defendant, whatever thecrime charged against him, or however

incensed the public may be on accountof its commission, should be denied.”5

Despite this recognition, the provisionof counsel in the Commonwealth hasproven problematic over the years.

A mid-20th century case, Gholson v.Commonwealth,6 illustrates the continu-ing problem of proceedings withoutcounsel. In May 1947, 22-year old WardGholson was indicted in Pulaski Countyfor carrying a concealed pistol. WhenGholson was brought to trial in Septem-ber 1947, he entered a plea of guiltywithout counsel. He was sentenced totwo years in prison. In his unsuccessfulmotion for a new trial, he said he wasnot advised of his legal rights, did nothave money to hire an attorney and wasnot assigned counsel by the court.

Overruling prior cases, the Courtreversed Gholson’s conviction.

“In addition to legal rights andguarantees common justicedemands that every personaccused of a felony be given afair and impartial trial. Thiswould include the informing ofan accused at the beginning of histrial by the judge relative to hislegal rights and guarantees; andespecially is this true where aplea of guilty is offered and enter-tained. It is incumbent upon thetrial judge to determine whetherthe waiver of a right to be repre-sented by counsel is made‘intelligently, competently, under-standingly and voluntarily.’ In theabsence of such a showing, as isrevealed by the record in the caseat bar, we think the accusedshould be granted a new trial.”7

On the national level, the UnitedStates Supreme Court in Gideon v.Wainwright8 issued a constitutionalmandate on March 18, 1963, to wit: astate seeking to take away a person’sliberty must provide an attorney to thoseaccused persons too poor to hire theirown in order to comply with the Sixth

T


“This we shall have!” (Gov. Wendell H. Ford, Oct. 17, 1972)The History of the Right to Counsel for the Indigent Accused in Kentucky

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Amendment right to counsel. The rightof one charged with crime to counselwas “deemed fundamental and essentialto fair trials....”9

Through the 1960’s, Kentucky’s sys-tem of providing counsel to the indigentaccused primarily involved the appoint-ment of an attorney by the presidingjudge without benefit of any compensa-tion or resources. Conscripted counselhad little or no ability to decline suchappointments and, more often than not,he/she was not provided with adequatetime, investigative support or expertsnecessary to be effective. Theseappointments fell disproportionately onthe newer members of the bar who hadlittle experience.

In January 1965, the Governor’sConference on Bail and Right to Coun-sel was held in Louisville, Kentucky.Judge John S. Palmore addressed the

conference on the issue of right to coun-sel, and he observed that, “counsel forthe indigent in this state always haveserved by court appointment and with-out pay. It is hoped that the work of theGovernor’s Task Force will bring legis-lation resulting in something better.”10

Although repeatedly unsuccessful inconvincing Kentucky’s highest Courtthat the judiciary should order paymentfor indigent defense counsel, Ken-tucky’s appointed attorneys didpersuade Kentucky’s highest Court todirectly encourage the General Assem-bly to provide a systematic solution forcompensating attorneys who were beingrequired by the courts to represent theindigent accused.

In March of 1966, in the case ofWarner v. Commonwealth,11 the attorneyinvoluntarily appointed to represent anindigent defendant argued that the

appointment “constitutes a taking of theattorney’s property for which the gov-ernment is required, under the FifthAmendment to the United States Consti-tution, to compensate him.”12 The Courtdenied the claim saying that counsel wasfulfilling the uncompensated responsibil-ities of being an officer of the court.However, the Court noted that:

“While we think there is merit in theproposition that assigned counsel shouldbe compensated, we are not convincedthat the point of time has arrived atwhich this Court should rule that the tra-ditional concept of the duty of theattorney as an officer of the court to rep-resent the indigent is no longer valid, andthat the public treasury can be compelledby court order to make compensation.We think it is appropriate for the time todefer to legislative action.”

By 1967, Kentucky was “one of onlysix states which did not pay assignedcounsel under any circumstances.”14 InJanuary of 1967, in Jones v. Common-wealth,15 the Court denied the request ofthe appointed attorney for reimbursementof out-of-pocket expenses, continuing to“defer to legislative action.”16

As it became evident that a system-atic legislative resolution was notforthcoming, the Court’s language beganto intensify. In March of 1968, in Com-monwealth, Department of Correctionsv. Burke,17 the Circuit Court awarded$1,500 to a Pike County appointed attor-ney to be paid out of a $100,000 fundappropriation in 1966-68 for publicdefenders, which contained no legisla-tive direction for its use and expenditure.The Court refused to allow for paymentof the fee, while continuing to defer tothe legislature in what was clearly con-sidered a serious matter that had merit.18

The Court expressed “the wish that otherdepartments of government recognizethis grave problem and take appropriatesteps, as has been done in other states, torectify the situation.”19

In May of 1970, in the case of Jonesv. Commonwealth,20 the Court againdenied a fee to an appointed counsel,but warned about continued refusal toaddress this problem, stating that:

“since the providing of counselfor indigent defendants in crimi-

Public Advocacy Commision Members who insure theindependence of DPA, KRS 31.015

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nal prosecutions in the state courtsis an obligation imposed on thestate by the constitutions, it wouldappear that the payment of rea-sonable compensation to suchcounsel would be in the categoryof an essential governmentalexpense. If so, the lack of anappropriation would not be a barto a judicial order for payment.”21

The Court also warned about drasticconsequences for public safety if theproblems were not resolved.

“Both the federal and state consti-tutions prohibit the trial of anindigent defendant without coun-sel. This means that in a casebeing prosecuted in a Kentuckycourt the state either must see thatthe defendant is provided counselor it cannot proceed with the pros-ecution. If it should be determinedthat attorneys cannot constitution-ally be compelled to serve ascounsel without compensation, incircumstances where the burdenof such service will amount to asubstantial deprivation of prop-erty, it would seem that the statewould be left with the choiceeither of not prosecuting indigentsor of providing compensation forappointed counsel.”22

Some counties began to address theneed for indigent defense counsel withprograms funded by local lawyers,grants and the county government.Boyd and Fayette counties began suchprograms with part-time lawyers in the1960’s. The first full-time publicdefender program was organized in Jef-ferson County in 1971.

In 1917, a Legal Aid Society wasformed in Fayette County, the 52nd inthe nation. It was primarily focused oncivil cases but lent “its efforts in crimi-nal cases where legal advice cannot besecured by the defendants….”23 OnApril 20, 1964, Fayette County LegalAid formed to “promote and sustainlegal aid to indigent clients.” ShelbyHurst, Thomas Bell and EugeneMooney were the initial members of itsfirst board of directors. The first execu-tive directors were Scotty Baesler in

1970, followed by Robert Jackson and,in 1976, Clyde Simmons, who wasexecutive director until fired “amid con-troversy over suits filed protesting thetransfer of juveniles from the KincaidHome to the county jail.”24 He was fol-lowed in 1977 by Tom Towles, whoresigned in February 1978. Don Paristook over in the spring of 1978 until hewas elected district court judge. TomClark was appointed acting director in1978. The office became a full-timeprogram in 1979.25 Joe Barbieri becamedirector shortly thereafter and continueduntil 2007. In 2007, the office became apart of the DPA full-time system afterMayor Newberry and the Urban CountyCouncil decided to eliminate its finan-cial contribution to the program.

With participation by county govern-ment and local industry, Boyd Countybegan to provide public defender serv-ices in an organized way in the 1960’s.It became full-time in 1972. John Simp-son,26 a Duke Law School graduate,was its first full-time director andserved from November 1972 until 1978

when he ran for judge. Bill Mizell wasthe director from 1978 until 1999. Hebecame an assistant county attorney andBrian Hewlett took over in 1999. BoydCounty became a state-run office in2007 with Brian Hewlett continuing asthe directing attorney.

Prior to 1971, the Louisville BarAssociation provided a roster of younglawyers to the criminal court judges forappointment in indigent criminal cases.On August 16, 1971, the Louisville andJefferson County Public Defender Cor-poration was organized and formallyincorporated by Robert C. Ewald and A.Wallace Grafton, Jr., Wyatt, Grafton &Sloss, along with Wallace H. Spalding,Jr., thereby creating the first full-time,fully staffed public defender office inthe Commonwealth, which had furthersignificance because it was in the state’slargest and busiest jurisdiction.27

Col. Paul G. Tobin (U.S. Army, Ret.)was appointed as its first executivedirector in 1972 and served in thatcapacity until his retirement in 1982.Daniel T. Goyette joined the Louisville-


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Jefferson County Public Defender’sOffice on Oct. 15, 1974, and quicklybecame the chief trial attorney. Heserved as deputy chief public defenderand associate director of the office from1977-1982, and he has been its chiefpublic defender and executive directorsince August 1982. The program hasargued six cases before the SupremeCourt of the United States.28

A group of attorneys appointed by thepresident of the Kenton County BarAssociation, which included Bob Carran,Dick Sluckich, Don Stepner, Dick Nel-son, Tom Smith and Al Hawes, met inApril 1972 to set up the Kenton CountyPublic Defender Program. Any memberof the county bar could join the open ros-ter system that Bob Carran administeredfor 23 years. A training program wasinstituted for new attorneys beginningwith bench trials, then moving to misde-meanor jury trials and on to a felony trialwith a co-counsel. The program beganwith 25 lawyers and reached 50 lawyersin the 1980’s. When the caseloadsincreased and the funding did not keeppace, the program was forced to reducecompensation to quarterly payments thatwere prorated with hourly rates routinelybelow $15 per hour, occasionally lessthan $10 an hour, and even as low as $6an hour. Eventually, a full-time office wasestablished in Kenton County in 1995.

Kentucky Bar Association’s efforts to advance a systematic statewidesolution

As the statewide organization withresponsibility for promoting the effi-

ciency and improvement of the judicialsystem, the KBA has been and contin-ues to be focused on ensuring theprovision of counsel for indigentsaccused of crimes. The KBA activelysought to prevent attorneys from beingforced to represent defendants withoutcompensation. In 1968 the KBA Boardof Governors recommended that the leg-islature “provide for a Public Defenderat the appellate level to handle appealsof all indigent defendants” and “legisla-tion be enacted to provide compensationfor attorneys appointed to representindigent defendants in criminal cases intrial courts.”29 The board was involvedin legal challenges and in discussionswith the Court of Appeals about theproblems stemming from lack of indi-gent defense counsel. When legislationwas passed, the board recommendedindividuals to the Governor for appoint-ment as the first chief defender for thestate.30 Through the years, the KBA hascalled for adequate funding and facili-tated measures to advance the provisionof counsel.

Judicial and legislative action broughtabout a statewide system in 1972

Senate Bill 261 passed the 1970 Gen-eral Assembly. It would have created aKentucky public defender system forcities of the first class. However, onMarch 30, 1970, Governor Louie Nunnvetoed SB 261 stating:

“By the authority vested in me bySection 88 of the Constitution ofKentucky, I hereby veto SenateBill 261 because: Today, the insti-

tutions of law and justice requiresupport and sacrifices perhaps asnever before. This is not the timefor those most concerned andinvolved with administering andadvocating justice to be encour-aged to abdicate a time-honoredduty to defend the accused….”

On Sept. 22, 1972, in Bradshaw v.Ball,31 Kentucky’s highest court charac-terized the involuntary representation ofindigents as an “intolerable condition”and held it was an unconstitutional tak-ing of an attorney’s property – hisservice to the client – without compen-sation.

While the appeal in Bradshaw waspending, the 1972 General Assembly, atthe request of Governor Wendell H.Ford, responded to the growing com-plaints of the bar, legal commentators32

and the admonitions of the Court, andcreated the Office of Public Defender,currently the Department of PublicAdvocacy (DPA), assigning it theresponsibility to represent all indigentpersons in Kentucky charged with orconvicted of a crime. House Bill 461,sponsored by Representatives Kenton,Graves and Swinford, passed the House60-18 on March 7, 1972, and the Senate26-5 on March 14, 1972. Kentucky’sstatewide defender system was born.The legislature allocated $1,287,000 forFY 73 and FY 74.33

Urgent need for significant change:This we shall have!

Announcing the establishment of thestatewide public defender office and theappointment of Anthony Wilhoit as thefirst chief defender on Oct. 17, 1972 inLouisville, Governor Wendell Fordsaid,

“We know the unhappy result ofthe law’s failure to meet the justexpectations of those governed byit. Law loses its stabilizing influ-ence; at best the result isalienation and lack of trust of thelegal system. At worst, there isunrest and violence. …It has beensaid the quality of a nation’s civi-lization depends on the way itenforces its criminal laws. Andthere can be no civilized enforce-

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ment of criminal law without fulllegal assistance to the accused.This we shall have!”

Thus, in the fall of 1972, the Officeof the Public Defender began to organ-ize, almost from scratch, the publicdefender system. One method of deliv-ering services was a so-called “assignedcounsel” system in which judgesappointed individual attorneys and thoseattorneys submitted bills for each caseto the judge and then to the state officefor approval, modification and payment.Another method involved a contractsystem in which the county, statedefender and local lawyers entered intoa contract for a fixed annual fundingamount that was paid quarterly, irre-spective of how many cases wereassigned. Different funding formulaswere attempted, e.g., using a fundingrate of $14,000 per circuit judge; a $.40per capita rate; hourly rates for legalservices at $20/hour for out-of-courtwork and $30/hour for in-court work,etc. Counties were asked to contributefunding and for many years some did.

Difficulties with the early methods ofproviding services soon became appar-ent. Funding was inadequate to meet therequirements and demands of the case-load. Money for assigned counsel wasunpredictable, and the billings oftenexceeded the allotted amount. Budget-ing was difficult at best because hourlypayments to private attorneys were vir-tually impossible to forecast. Frequentlyin the late 1970’s budget shortfalls werecommon. Contract systems wereunsound, conflict-ridden and generallytroubled as well. Money provided bythe state was insufficient, and countyfiscal courts, which had been envisionedin the statute as significant financialcontributors to the system, failed todeliver or routinely fell short, with somenotable exceptions. Further, attorneyswere often inexperienced and untrained,turnover was high, and supervision wasalmost nonexistent. With 120 counties,the public defender system was mostly apatchwork of inconsistent quality.35

Many at the local level believed thecriminal justice system costs were stateresponsibilities. Gradually, countiescontributed less and less money, and in

the rural counties more and more locallawyers were unwilling to work forwhat amounted to meagerly subsidizedpro bono compensation. As a result,more counties defaulted to a full-timeoffice that was organized and run by thestate office. In the late 1970’s, DPAreceived grants from the Law Enforce-ment Assistance Administration toprovide for additional full-time officesin the Appalachian counties.

In 1982, the Public Advocacy Com-mission,36 the equivalent of the statepublic defender board of directors, wascreated as a primary way to advance thepolitical and professional independenceof the program consistent with the Codeof Professional Responsibility and theABA standards.37 Under KRS Chapter31, it was given responsibility for provid-ing the names of three qualified attorneysto the Governor for appointment to theposition of public advocate38 and forreviewing of the “performance of thepublic advocacy system.”39 That sameyear the assigned counsel method ofdelivery was abolished, leaving only thecontract and full-time methods for pro-viding trial level counsel. Upon reviewof the challenges facing the system, thePublic Advocacy Commission in 1990established as one of its primary goalsthe complete implementation of the full-time system in Kentucky. Funding hadbeen provided by the General Assemblyin 1996 for Commonwealth’s Attorneysto convert to full-time. In 1998, fundingwas provided to open five new DPAoffices. Additional funding in 2000 and2004 allowed for all 120 counties to beserved by a full-time defender office and,with the opening of the Barren Countyoffice in 2005, the full-time system wascompletely implemented throughout thestate. The impact and results of this effortcannot be overstated.40

Fulfillment of the constitutional mandate awaits

Ironically, while the establishment ofthe statewide public defender systemwas a significant and important achieve-ment, it also has produced a certainincongruity and a disquieting concern.On the one hand, Kentucky has astatewide defender program with astrong statutory structure that meets

many of the national standards for theprovision of counsel for indigents. It hasconsistently delivered effective defenseservices at trial and post-trial, in theprocess avoiding and correcting manywrongful convictions. It provides cen-tral coordination and planning forevidence-based allocation of resourcesaccording to needs, it is efficient andresponsive to clients and courts alike, itoperates a nationally acclaimed trainingand education program, and it is staffedby many who are recognized experts inthe field of criminal defense at all lev-els. Yet, on the other hand, the statewidedefender program has been plaguedthroughout its existence by chronic andpervasive funding problems and bur-dened with unethical caseloads.41 With31 defender trial offices competingagainst 120 County Attorney offices and57 Commonwealth Attorney offices,there are significant inequities, ineffi-ciencies and logistical challenges thatpersist.

Defender resources remain acutelyinadequate and insufficient. Thedefender program provided representa-tion in 161,287 cases in Fiscal Year2012. This means that public defendertrial caseloads in FY12 averaged 474newly opened cases per attorney at afunding level of $212 per trial case.Defenders contracted 3,937 cases to pri-vate lawyers at an average of $341 percase.42 The quality of representationremains at risk with such inadequatefunding and deficient resources.

Lawyers make a differenceLawyers make a difference in our

American way of life, a way of life thatevolved and developed from our revolu-tionary abhorrence of tyranny anddevotion to liberty. As we celebrate the50th anniversary of Gideon, and Ken-tucky’s 40th year of complying with itsmandate by providing counsel to theindigent accused through its statewidepublic defender program, there is muchmore that must be done to fulfill thefederal and state constitutional require-ments that all citizens charged with acrime have a right to counsel in ourCommonwealth, no matter what theirfinancial status. Common justicedemands as much…

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ENDNOTES1. “History…provides a terrain for

moral contemplation. Studying thestories of individuals and situationsin the past allows a student of his-tory to test his or her own moralsense, to hone it against some ofthe real complexities individualshave faced in difficult settings.People who have weathered adver-sity not just in some work offiction, but in real, historical cir-cumstances can provideinspiration.” Peter N. Stearns,American Historical Association.

2. “In all criminal prosecutions, theaccused shall enjoy the right to …have the Assistance of Counsel forhis defence.”(Ratified Dec. 15,1791).

3. “That in all criminal prosecutions,the accused hath a right to be heardby himself and his counsel….”Article XI, Section 10, First Ken-tucky Constitution ratified April 19,1792.

4. “In all criminal prosecutions theaccused has the right to be heard byhimself and counsel….” Section11, Fourth Kentucky Constitutionratified August 3, 1891.

5. McDaniel v. Commonwealth, 205S.W. 915, 919 (1918). “The Consti-tution of the state, in section 11,declares in part that, ‘in all criminalprosecutions the accused has theright to be heard by himself andcounsel,’ and nobody will disputethat under our form of governmentthe right of the accused in everycase to be heard by himself andcounsel is, as provided in section 1of the Constitution, an ‘inherentand inalienable right’ that no defen-dant, whatever the crime chargedagainst him, or however incensedthe public may be on account of itscommission, should be denied. Itsdenial would be destructive of themajesty of the law and create in theminds of good citizens and right-thinking people a fear that courtswere not courageous or powerfulenough to protect from mob vio-lence persons charged with crime,when everybody ought to feel and

know that courts are both coura-geous and powerful enough, whentheir courage and power is put tothe test, to withstand the demand ofinflamed and angry citizens for thelife of an accused, and to give himthat trial in form as well as sub-stance which every citizen isentitled to in a court of justice.”

6. 212 S.W.2d 537 (Ky 1948).7. Emphasis added, 212 S.W2d at

540.8. 372 U.S. 335 (March 18, 1963).9. Id. at 344.10. John S. Palmore, Counsel for the

Indigent in Criminal Cases,Address before Governor’s Confer-ence on Bail and Right to Counsel,Louisville, Ky., Jan. 23, 1965, KYState Bar Journal (May 1965) pp.21, 23.

11. 400 S.W.2d 209 (KY 1966).12. Id. at 211.13. Id. at 211-12.14. David Emerson, Recent Cases, 55

KY L. J. 703, 709 (1967). Theother states were Louisiana, Mis-souri, South Carolina, Tennesseeand Utah.

15. 411 S.W.2d 37 (KY 1967).16. Id. at 38.17. 426 S.W.2d 449 (KY 1968).18. “We are cognizant of the increasing

demand made upon the members ofthe legal profession to furnish con-stitutionally guaranteed counselservices to indigent personscharged with crimes. It is con-tended by appellee that sincesociety is required to furnish theseservices, society should assume theresponsibility of paying adequatecompensation for them. We cannotrefute this proposition. It is onlyfair and just. The difficulty is thatthere exists at the present time noauthorized procedure for payingsuch claims, nor a fund out ofwhich they may be paid.” Id. at450.

19. Id. at 451.20. 457 S.W.2d 627 (Ky. 1970).21. Id. at 632.22. Id. 631-32.23. The Lexington Herald, Feb. 8,

1917.

24. The Lexington Leader, March 8,1978, page C-1.

25. Fayette County Legal Aid has seenmany litigators and leaders of note,including: Herb Ponder, Fred Saun-ders, Glen Bagby, Hon. MariaRansdell, Hon. Ernesto Scorsone,Margret Kannensohn, Kathy Stein,Russ Baldani, Ray Debolt, JoeBouvier, Larry Roberts, Tom Clark.Sam Milner, Lyle Robey, and JuliusRather, and Hon. James Kellerserved as the president of the Cor-poration. Bo Fugazzi served aschair of Fayette County Legal Aid

Robert C. Ewald, Wyatt, Tarrant &Combs, has chaired the Board ofthe Louisville-Jefferson County Pub-lic Defender Corporation since itsinception in 1971, and has been amember of the Public AdvocacyCommission since 1990, serving asits chair from 1993-2010. He waspresident of the KBA in 2006-07.Daniel T. Goyette joined theLouisville-Jefferson County PublicDefender’s Office as a trial attorneyin 1974 and is now in his 30th yearas its executive director. Erwin W.Lewis began his career as a publicdefender in 1977 and served as thePublic Advocate for 12 years from1996-2008. Edward C. Monahan iscurrently in his second term as Ken-tucky’s Public Advocate, havingstarted with the Kentucky publicdefender program in 1975.

Ewald Goyette

Lewis Monahan

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Board of Directors from 1990-2010. That board included Hon.Armand Angelucci, Steve Barker,Charles Ward, Pete Guthrie, SherriParis, Guy Colson, Tonya Prats,and Joan Shinnick.

26. Simpson was a former assistantCommonwealth’s attorney andcounty probation and parole officer.He was appointed by the CountyFiscal Court on a 2-2 vote with theCounty-Judge Executive’s vote forhim breaking the tie. “Boyd Countywas the first county in the Com-monwealth to enact an ordinancecalling for appointment of a publicdefender under a new systemenacted earlier this year by thestate’s General Assembly.” TheAshland Independent, Nov. 22,1972 at p. 1.

27. Its initial Board of Directors con-sisted of Robert C. Ewald, A.Wallace Grafton, Jr., Hon. MichaelO. McDonald, Matthew B.J. Quinn,Jr., John T. Fowler, J. Bruce Miller,and Daniel D. Briscoe.

28. Kentucky v. Whorton, 441 U.S. 786(1979); Pilon v. Bordenkircher, 444U.S.1 (1979); Watkins v. Sowders,449 U.S. 341 (1981); Crane v. Ken-tucky, 476 U.S. 683 (1986);Stanford v. Kentucky, 492 U.S. 361(1989); and the landmark case ofBatson v. Kentucky, 476 U.S. 79(1986).

29. This was on motion of Mr. Eblenand Mr. Ebert. KBA Board of Gov-ernors Minutes, Feb. 7, 1968.

30. The board created a Committee “toconfer with the Court of Appealsrelating to the Jones case. KBABoard of Governors Minutes, Nov.11-12, 1970. The board approvedcosts in a case seeking compensa-tion. KBA Board of GovernorsMinutes, Jan. 15-16, 1971. Theboard approved payment of “allbills in connection with the action”against the state treasurer for com-pliance the Franklin Circuit Court’sorder of attorney fees in Bradshaw.KBA Board of Governors Minutes,May 14-15, 1971. The boardauthorized the KBA ExecutiveDirector to explore seeking “funds

from the Kentucky Crime Commis-sion to maintain a pilotprogram….” KBA Board of Gover-nors Minutes, July 30-31, 1971.The board noted that a publicdefender bill passed and the boardwas to submit 5 names to the Gov-ernor for the first chief defenderand the KBA President appointed a“committee to screen applicants forthe position.” KBA Board of Gov-ernors Minutes, March 24-25,1972. The board authorized a$1,000 stipend to Carl H. Ebert forhis representation in Bradshaw.KBA Board of Governors Minutes,July 14-15, 1972. In the fall 1972the board submitted 5 names to theGovernor for head of the office ofpublic defender. William E. Rum-mage was KBA President. KBABoard of Governors Minutes, Sept.15, 1972.

31. 487 S.W.2d 294 (Ky. 1972). Theplaintiffs seeking compensation fortheir services were Louis A. Ball,

who later became Campbell CountyCommonwealth’s Attorney; Ray-mond E. Lape, who later waselected Kenton Circuit CourtJudge; John A. Diskin, who laterserved as a Campbell County Cir-cuit Court Judge; and Kevin Quill,who became an assistant Common-wealth’s attorney. They wererepresented by Carl H. Ebert.“Through his volunteer efforts, hedid away with pro bono representa-tion by giving pro bonorepresentation.” Louis A. Ball, Ballv. Bradshaw: 20 Years Later, TheAdvocate, Vol. 14, No. 5 (Oct.1992) at p. 6. Ball also noted thatonly a handful of young attorneyswere being appointed and itimpaired their ability to make a liv-ing. “In 1970 it was a shame thatthe representation of the accusedoften fell to naïve and inexperi-enced lawyers. Unfortunately, bythe time experience and expertisewas acquired, the lawyers moved

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on and the situation repeateditself.” Id.

32. B. Deatherage, Comment, TheUncompensated Appointed CounselSystem: A Constitutional andSocial Transgression,60 Ky. L.J.710, 722(1972) (The social costs ofthe present system should also beconsidered. An indigent defen-dant…cannot be expected to feelthat justice has been administeredwhen his newly licensed, court-appointed, uncompensated attorneyattempts to persuade him to pleadguilty because the attorney doesn’twant to bear the cost of a fulltrial.”); Jennings T. Bird, The Rep-resentation of Indigent CriminalDefendants in Kentucky, 53 Ky L.J.512 (1965); Daniel G. Grove,Gideon’s Trumpet: Taps for anAntiquated System? A Proposal forKentucky, 54 KY L.J. 527, 533(1966) (“Evaluation of the currentsystem of representation for indi-gents reveals an urgent need forsubstantial change…. This result iseven clearer after a review of theunanimous criticism of the benchand bar of the state.”)

33. “The Court of Appeals has ruledseveral times that lawyers repre-senting indigents are not entitled asa matter of right to compensationfrom either local or state authori-ties. One of the primary purposesof the Act was to eliminate thisinequity.” Robert C. Ewald, A.Wallace Grafton, Jr., The KentuckyPublic Defender System, 36Ky.S.B.J. No. 3, at 41.

34. The Public Papers of GovernorWendell H. Ford, 1971-1974 pp.271-72 (1978). (Emphasis added).

35. An extensive review of the earlydevelopment of the statewidedefender program is found in ErnieLewis, DPA Plan for Increase inFull-Time Offices, The Advocate,Vol. 19, No. 5 (September 1997) atpp.4-11.

36. The 12 person Kentucky PublicAdvocacy Commission consists ofa representative from each of thethree Kentucky law schools, threemembers appointed by the Gover-

nor from recommendations of theKentucky Bar Association and onemember from recommendations bythe Protection and Advocacy Advi-sory Boards, three at-largemembers and two membersappointed by the KentuckySupreme Court. CommissionChairs have been Anthony M. Wil-hoit, Sept. 29, 1982 – Oct. 28,1983, formerly a Kentucky Courtof Appeals Chief Judge, who cur-rently serves as executive directorof the Legislative Ethics Commis-sion; Max Smith, Oct. 28, 1983 –Jan. 6, 1986, a Frankfort criminaldefense attorney; Paula M. Raines,March 21, 1986 – June 10, 1986, aLexington attorney and psycholo-gist; William R. Jones, Oct. 10,1986- June 15, 1993, a professorand former dean of the NKU ChaseLaw School; Robert C. Ewald, June15, 1993-2010, partner at Wyatt,Tarrant & Combs, Louisville, and apast president of the KBA (2006-07); Jerry J. Cox, 2010 – present,Mount Vernon criminal defenselawyer and president-elect,National Association of CriminalDefense Lawyers.

37. The existence and function of theCommission helps preserve theindependence of DPA as recom-mended and deemed essential bythe American Bar Association asset forth in the ABA Ten Principlesof a Public Defense Delivery Sys-tem (February 2002): Principle #1:“The public defense function,including the selection, funding,and payment of defense counsel, isindependent.”

38. Those appointed to serve as PublicAdvocate have been Anthony M.Wilhoit, 1972-1974; Jack E. Farley,March 1975-Oct.1, 1983; Paul F.lsaacs, Oct. 1, 1983-Dec. 31, 1991;Ray Corns, Jan. 1, 1992–June 16,1992; Allison Connelly, July 2,1992-Sept. 30, 1996; Erwin W.Lewis, Oct. 1, 1996-August 31,2008; Edward C. Monahan, Sept. 1,2008-present.

39. KRS 31.115. The first meeting ofthe Public Advocacy Commission

was Sept. 29, 1982. Memberswere: Helen Cleavinger, HenryHughes, Paul G. Tobin, JamesPark, Jesse Crenshaw, William E.Rummage, Lambert Hehl, Jr., Jus-tice J. Calvin Aker, Somerset,Judge Anthony M. Wilhoit, BarbarB. Lewis, Robert Lawson, andWilliam R. Jones.

40. Kentucky public defenders haveinfluenced the development ofconstitutional law in 22 U.S.Supreme Court decisions andgrants of writs from 1978 – 2012.Defenders have been responsiblefor hundreds upon hundreds ofreversals in cases in the stateappellate courts. Since 2000, 14people have been proven to havebeen wrongfully convicted of seri-ous felony offenses in Kentucky,the most recent being KerryPorter, who was exonerated inDecember 2011 after 14 years inprison. The wrongfully convictedindividuals served an average of 8years in prison before their con-victions were overturned and theywere released from custody.

41. In 2008, the Department of PublicAdvocacy’s funding was reducedby millions of dollars. Conse-quently, a declaratory judgmentaction was filed to address theinability of DPA to continue pro-viding representation to the tens ofthousands of clients appointedpublic defenders in courtsthroughout the state. After exten-sive litigation, the Franklin CircuitCourt dismissed the action and theKentucky Supreme Court eventu-ally dismissed the appeal as mootbecause the executive branch andthe General Assembly allocatedadditional funding totaling $3.7million so that services and opera-tions could continue for theremainder of the fiscal year. Foran extended discussion see: Nor-man Lefstein, SecuringReasonable Caseloads: Ethics andLaw ion Public Defense at pp.176-78.

42. DPA Fiscal Year 2012 Annual Liti-gation Report at pp. 3, 14.

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By John P. Gross and Jerry J. Cox

ifty years ago the United States-Supreme Court recognized the“obvious truth” that a lawyer is a

necessity and not a luxury when facinga criminal charge.1 While the need forthe able assistance of counsel may havebeen obvious to the Court, legislatorshaven’t always seen things quite soclearly. The reluctance to adequatelyfund indigent defense is undoubtedlybased on the belief that spending moneyon criminal defense is not politicallyexpedient, particularly when defendantsare perceived as mostly guilty. Provid-ing defense attorneys with moreresources is therefore seen as a waste ofmoney; attorneys will only delay theinevitable conviction and will make thecriminal justice system less efficient.Indigent defense providers have typi-cally responded to this sort of prejudiceby pointing out that every defendant ispresumed to be innocent and is entitledto due process of law. While that is cer-tainly true, those arguments too oftenfall on deaf ears.

Advocates for increased funding forcriminal defense now have a growingbody of empirical research that supportsthe argument the adequately funding ofindigent criminal defense results in amore efficient justice system. The crimi-nal justice system is just that: a system.When one component of that system isnot well maintained, the entire systemfunctions less efficiently. In addition to

arguing that able representation pro-vides an immeasurable benefit to adefendant and the quality of justice hereceives in our courts, indigent defenseproviders are now communicating thevery real fact that good representationof indigent criminal defendants providesa measurable cost savings to the entiresystem. The inadequate funding forindigent defense not only erodes thepublic trust, but results in wrongful con-victions which in turn, contribute tohigher incarceration rates. Wrongfulconvictions also increase the number ofpost-conviction appeals and attacks onconvictions. Research suggests thatinadequate funding for indigent defenseultimately results in higher incarcerationcosts and higher appellate costs. Arisingfrom the higher rates of incarcerationand the continuation of post-convictionappellate attacks. This research suggeststhat underfunding indigent defense doesnot actually save the state money;rather, it increases the burden on thetaxpayers.

As one Harvard Universityresearcher concludes, “When the systemincludes well-trained public defenderscases move faster, helping the courtmanage growing caseloads, and the sys-tem tends to generate and implementinnovative programs.”2 Adequatelyresourced defense attorneys increase theeffectiveness of this system. The inter-connectedness of our criminal justicesystem requires that every person oper-ating within that system have access to

adequate resources in order to ensure ajust result.

With that in mind, there is a growingrecognition of the inverse correlationbetween taxpayer spending on indigentdefense and incarceration costs. A Jus-tice Policy Institute report entitled“System Overload: The Costs of Under-Resourcing Public Defense” identifiesfive ways in which the poor quality ofpublic defense can increase incarcera-tion costs: 1) more pretrial detention forpeople who do not need it; 2) increasedpressure to plead guilty leading towrongful convictions; 3) wrongful con-victions and other errors at trial; 4)excessive and inappropriate sentences;and 5) increased barriers to reentry.3

The choice for policy makers is a sim-ple one: either spend the moneynecessary to ensure that every defendanthas an adequate defense, or continue topay the costs associated with a criminaljustice system that incarcerates 1 out ofevery 100 adults in the country.4

The Sooner Able Counsel is Provided,the Better

Several studies demonstrate theimportance of providing able counsel ata defendant’s first appearance before ajudicial officer. Many jurisdictions areseeking to implement evidence-basedpractices when making decisions aboutpretrial release. In the report “Philadel-phia’s Crowded, Costly Jails: TheSearch for Safe Solutions,” it is esti-mated that the City of Philadelphiaspends seven cents out of every tax dol-lar on holding people in its jail.5 In aneffort to reduce the overall jail popula-tion, the report makes recommendationswhich include expanding options fordiverting cases away from the courtsand creating a broader range of pretrialservices.

A 2010 study, “Baltimore BehindBars: How to Reduce the Jail Popula-tion, Save Money and Improve PublicSafety,” concludes that it costs $100 aday to hold a person in custody in theBaltimore Detention Center but thatproviding pretrial release services todefendants would cost on average $2.50per person per day.6

F


The Cost of Representation Compared to the Cost of Incarceration:How Defense Lawyers Reduce the Costs ofRunning the Criminal Justice System

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“Do Lawyers Really Matter? TheEmpirical and Legal Case for Attorneysat Bail” studies the effect that lawyershave on pretrial release decisions inBaltimore, Md.7 The study concludesthat having adequately prepared andresourced defense attorneys at the firstappearance results in defendants beingreleased on their own recognizancetwice as often than if they were unrepre-sented, and bail being reduced fourtimes as often for the remaining defen-dants. This translates into a 20 percentreduction in the average amount of timespent in jail per defendant. Having rep-resentation at the initial appearancemeans that fewer defendants will beheld in custody unnecessarily and thatwill help reduce the high costs of incar-ceration. The end result is that whateverit might cost to have defense counselpresent at a first appearance, in the end,counsel pays their own way throughlowered incarceration costs. Defensecounsel is in a position to provide thecourt with the type of information thatwill lead to more rational conditions of

release or detention and to advocate forthe use of less costly pretrial releaseservices.

An important corollary discovered ina study released in 2012 bythe NewYork City Criminal Justice Agency enti-tled “A Decade of Bail Research in NewYork City,” is that defendants who areincarcerated pre-trial have worse caseoutcomes than those defendants who areallowed to remain at liberty. The studyfound that defendants who are detainedpretrial are more likely to be convicted;if convicted, they are more likely to besentenced to incarceration; and if incar-cerated, their sentences are likely to belonger.8 This suggests that the decisionto detain pretrial not only imposesgreater incarceration costs but alsoresults in higher post-conviction incar-ceration costs due to the increase in therates of conviction and the increase inthe average length of sentence as com-pared to those defendants notincarcerated prior to trial.

There is yet another reason thatdefense counsel needs to be involved

from the moment a defendant is chargedwith a crime. Defense counsel needs toconduct an immediate investigation intothe facts of the case and into the back-ground of the defendant. As time passes,witnesses become more difficult tolocate and their memories fade. Physicalevidence may be lost or begin to deteri-orate. Defense counsel with access toadequate resources to begin the investi-gation process should be involved fromthe inception of the case for both costsavings and to maintain the due processrights of defendants.

Better to get it Right the First TimeUnderfunding indigent defense

inevitably leads to excessive caseloadsfor defense attorneys.9 Just like every-one else, when defense attorneys do nothave the time or resources necessary todo their job properly, mistakes will bemade. Taxpayers pay a price for thesemistakes. A 2011 report by the BetterGovernment Association and the Centeron Wrongful Convictions at Northwest-ern University, entitled “A Tale of Lives

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Lost, Tax Dollars Wasted and JusticeDenied,” concludes that wrongful con-victions in 85 Illinois cases costtaxpayers $214 million.10

Similarly, “Faces of Failing PublicDefense Systems: Portraits of Michi-gan’s Constitutional Crisis,” a reportprepared by the ACLU in 2011, docu-ments the exoneration of 13 defendantswho were convicted because of attorneyerrors directly attributed to the inade-quate funding of Michigan’s countybased indigent defense system, which

ended up costing taxpayers $13million.11 The director of Michigan’sState Appellate Defender Office esti-mates that over a period of five yearsthe underfunding of indigent defense ledto nearly $70 million in unnecessaryincarceration costs, which does not takeinto account the additional costs associ-ated with appellate litigation-the cost ofappellate defense counsel, the cost ofprosecutors, and the cost of appellatecourts.12

The Kentucky DPA’s Post Trial Divi-sion has identified 14 wrongfulconvictions where the defendants col-lectively spent approximately 112 yearsin jail before having their convictionsoverturned.13 For the defendants whohave been wrongfully convicted, it isimpossible to put a price on those lostyears, but there is a very real price to bepaid by taxpayers. A Vera Institute ofJustice Report entitled “The Price ofPrisons: What Incarceration Costs Tax-payers” estimates that it currently costsKentucky $14,603 a year to house aninmate.14

Our adversarial system breaks downwhen the defense is underfunded; itbecomes not only inaccurate but ineffi-cient. Attorney General Eric Holder hasnoted the consequences of underfundingpublic defense: “When defendants failto receive competent legal representa-

tion, their cases are vulnerable to costlymistakes that can take a long time tocorrect. Lawyers on both sides canspend years dealing with appeals arisingfrom technical infractions and proce-dural errors. When that happens, no onewins.”15

Finding Cheaper and Safer OptionsThe active participation of ade-

quately resourced defense counsel fromthe inception of a case ensures thatdefendants will have access to diversionprograms, which are typically muchcheaper and more effective at reducingrecidivism than incarceration. Defenseattorneys are in a unique position tohelp identify defendants who have sub-stance abuse issues or mental healthproblems. A national study of people injails across the country found that 68percent of people in jails suffered fromdependence or abuse of alcohol ordrugs.16 According to a report from theVera Institute of Justice SubstanceAbuse and Mental Health Program, 33percent of adult District of Columbiajail residents had some indication of amental health need, but criminal justiceagencies failed to identify this need 46percent of the time.17 Early involvementin a defendant’s case increases the like-lihood that defense attorneys will beable to identify defendants with sub-


John P. Gross isIndigentDefense Counselfor The NationalAssociation ofCriminalDefense Lawyers(NACDL) as wellas an adjunct

associate professor of law at Ameri-can University, Washington Collegeof Law where he teaches criminalprocedure and evidence. A lawreview article by Gross, “The Failureto Accurately Assess the Value ofCounsel: Why ‘Do It Yourself’Lawyering Doesn’t Protect theRights of the Indigent” will be pub-lished in 2013 in the New MexicoLaw Review. Previous publicationsinclude articles dealing with theexclusionary rule and the right tocounsel under the Sixth Amend-ment. In addition, he has givennumerous presentations on PublicDefense Delivery Systems and onethical issues related to the practiceof criminal defense. Prior to joiningthe NACDL, he was a visiting assis-tant professor of law and actingdirector of the Syracuse UniversityCollege of Law’s Criminal DefenseClinic. Prior to his teaching andclinical career, he was a staff attor-ney at the Legal Aid Society in NewYork City in the Criminal DefenseDivision, where he represented indi-gent defendants at all stages ofprosecution, from arraignmentthrough disposition. A 1999 gradu-ate of Hofstra University College ofLaw, he received his Bachelor ofArts degree from Georgetown Uni-versity in 1995.

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stance abuse issues or mental healthproblems and can begin to seek outappropriate alternatives and treatmentoptions for them. Once again, defensecounsel is in a position to provide thecourt with the type of information thatwill lead to more rational conditions ofrelease or detention pretrial, as well asconditions of release or confinementpost-conviction, with resulting cost sav-ings to the overall justice system.

The Real Costs of Incarceration The studies referenced above identify

the short-term savings associated with areduction in incarceration rates; howeverthere is also evidence to suggest thatthere are long-term financial benefitsassociated with such a reduction. A 2010study by the Pew Center on the statesentitled “Collateral Costs: IncarcerationsEffect on Economic Mobility” finds thatincarceration carries significant andenduring economic repercussions. For-mer inmates work fewer weeks per year,earn less money and have limitedupward mobility compared to those notformerly incarcerated. Past incarcerationis found to reduce subsequent wages by11 percent, cut annual employment bynine weeks and reduce yearly earningsby 40 percent.18

The Texas Criminal Justice Coali-tion’s 2010 report “Costly Confinement& Sensible Solutions: Jail Overcrowdingin Texas” concludes that long waits injail lead to a loss of employment andhousing for defendants which contributeto recidivism. The report emphasizes theimportant role counsel plays in helping adefendant navigate the criminal justicesystem and calls for representation priorto a defendant’s first court appearance orplea negotiations. It also concludes thatpublic defender programs not onlyincrease the quality of indigent defenseservices but that they also decrease soci-etal costs. Defense attorneys have theability to significantly reduce the numberof days between an individual’s arrestand trial, which reduces the unnecessaryand harmful collateral consequences ofjob and housing loss from incarceration,promotes family stability and reducesovercrowding and substantial jail costs.19

It is important to note that while thereare certainly costs associated with incar-

ceration, for both the defendant and thestate, there are also the costs imposed bya conviction, even a conviction that doesnot result in incarceration. A survey ofstatutory collateral consequences of con-viction in Kentucky identifies adverseconsequences in the following areas:civil rights, civil liberties, parental rights,public offices and officials, professionalor occupational licenses, employmentand employment benefits, applicationsand disclosures, licenses and permits,penalty enhancements, sex offender reg-istration, contractual relations and, lastly,disqualification as an heir or benefici-ary.20 The presence of counsel is anecessity even in those cases where ajudge isn’t considering imposing a sen-tence of incarceration.

Adequate Resources for CriminalDefense Reduces Costs

Ultimately, the early appointment ofadequately resourced defense counselbenefits not just the defendant but theentire criminal justice system. Theinvolvement of the attorney leads to amore reasoned bail determination thatwill reduce the costs of pretrial deten-tion. It allows the attorney to identifythe defendant who will benefit fromalternatives to incarceration, such asdrug or alcohol treatment programs,which are less costly and more effectiveat reducing recidivism than incarcera-tion. It also permits the defense toconduct a prompt investigation of thecase, which helps the defendant makean informed decision regarding whetheror not to enter into a plea bargain. Thisin turn leads to greater efficiency whichreduces court costs. It allows for thepreservation of evidence, which enablesthe defendant to prepare and present anadequate defense, thereby increasing theaccuracy of the trial outcome and reduc-ing the possibility that an innocentdefendant will be incarcerated. Defensecounsel with adequate resources makefewer errors and thus, reduce the num-ber and length of the appellate processafter conviction.

The reality is defense attorneysreduce incarceration costs, increase effi-ciency and increase the accuracy andreliability of our criminal justice system.Defendants benefit, society benefits and

even the victims of crime benefit byhaving their complaints resolved quicklyand accurately. As Kentucky’s highestCourt has stated: “It is in the publicinterest that the administration of crimi-nal justice proceeds fairly, impartially,expeditiously and efficiently.”21

There can be no doubt that decliningrevenues force states to make cuts inessential services. When faced withthese harsh economic realities, the ques-tion that is usually posed by legislatorsto advocates for the right to counsel is:“How can we afford to give moremoney to lawyers for poor people?”Based on the empirical evidence, thesimple answer is: “How can we affordnot to?”

Jerry J. Cox isan attorney inMount Vernon,Ky. Cox servesas chair and hasbeen a memberof the PublicAdvocacy Com-mission, the

governing board for Kentucky’sstatewide public defender program,since 1993 and has been its chairsince 2010. Cox did contract pub-lic defender work in RockcastleCounty in the 1970s. He hastrained extensively for DPA at itsannual conference and at its TrialPractice Institute. He is NationalAssociation of Criminal DefenseLawyers president-elect and a pastpresident of the Kentucky Associa-tion of Criminal Defense Lawyers.Cox has been practicing criminaldefense law for over 40 years, andis a 1968 graduate of the Univer-sity of Kentucky College of Law anda 1965 graduate of Berea College.He is a member of the Americanand Kentucky Bar associations andhas served on the KBA’s Unautho-rized Practice of Law Committee(1993-2010, chair 2007-2010),Criminal Rules Committee (1995-2007), Legislative Committee(1999-2005). He also served onthe Kentucky Criminal JusticeCouncil’s Drug Strategy Committee(1999), and the Kentucky BarFoundation (president, 2002).



ENDNOTES1. Gideon v. Wainwright, 372 U.S.

335 (1963).2. Tony Fabelo, What Policymakers

Need To Know To Improve PublicDefense Systems Public Defense,Papers on the Executive Session onPublic Defense (2001), KennedySchool of Government, HarvardUniversity, p. 2., available at:https://www.ncjrs.gov/pdffiles1/bja/190725.pdf.

3. Available at: http://www.justicepolicy.org/uploads/justicepolicy/documents/system_overload_final.pdf.

4. See “One in 100: Behind Bars inAmerica 2008” by The Pew Centeron the States, available at:http://www.pewstates.org/uploadedFiles/PCS_Assets/2008/one%20in%20100.pdf.

5. Available at: http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Philadelphia_Research_Initiative/Philadelphias_Crowded_Costly_Jails_rev.pdf.

6. Available at: http://www.justicepolicy.org/images/upload/10-06_REP_BaltBehindBars_MD-PS-AC-RD.pdf.

7. Douglas L. Colbert, Ray Paternos-ter & Shawn Bushway, DoAttorney’s Really Matter?TheEmpirical and Legal Case for theRight to Counsel at Bail, 23 Car-dozo L. Rev. 1719 (2002).

8. Mary T. Phillips, Ph.D., A Decadeof Bail Research in New York City,New York City Criminal JusticeAgency (2012), p. 127, availableat: http://www.cjareports.org/reports/DecadeBailResearch.pdf.

9. See Norman Lefstein, SecuringReasonable Caseloads: Ethics andLaw in Public Defense, AmericanBar Association, Standing Commit-tee on Legal Aid and IndigentDefense (2011), available at:http://www.americanbar.org/content/dam/aba/publications/books/ls_sclaid_def_securing_reasonable_caseloads.authcheckdam.pdf.

10. Available at: http://www.bettergov.org/investigations/wrongful_convictions_1.aspx.

11. Available at: http://www.aclu.org/files/assets/MI_failedjustice_bookletsm.pdf.

12. Written Testimony of Dawn VanHoek, Chief Deputy Director StateAppellate Defender Office beforethe U.S. House of RepresentativeCommittee on the Judiciary, March26, 2009, available at: http://beta.sado.org/sado_news/DVH_testimony_3-26-09.pdf.

13. See page 20 of DPA 2012 AnnualReport, available at: http://dpa.ky.gov/NR/rdonlyres/A4E59688-A807-4914-BAC3-3FB616475BD6/0/2012AnnualReportDraftFINAL090612REDUCED.pdf.

14. Available at: http://www.vera.org/

download?file=3542/Price%2520of%2520Prisons_updated%2520version_072512.pdf.

15. Remarks by Attorney General EricHolder at the American Council ofChief Defenders Conference,Washington D.C., Wednesday, June24, 2009.

16. Jennifer C. Karberg and Doris J.James, Substance Dependence,Abuse, and Treatment of JailInmates, 2002 (Washington, D.C.:Bureau of Justice Statistics, 2005).

17. See Closing the Gap: Using Crimi-nal Justice and Public Health Datato Improve the Identification ofMental Illness (July 2012). Avail-able at: http://www.vera.org/download?file=3544/closing-the-gap-report.pdf.

18. Available at: http://www.pewstates.org/uploadedFiles/PCS_Assets/2010/Collateral_Costs(1).pdf.

19. Available at: http://www.texascjc.org/sites/default/files/publications/Costly%20Confinement%20Sensible%20Solutions%20PowerPoint%20(Mar%202011).pdf.

20. See Daniels, Danley-Nichols, Mor-gan & Rhoades, Kentucky’sStatutory Collateral ConsequencesArising from Felony Convictions: APractitioner’s Guide, 35 N. Ky. L.Rev. 413 (2008).

21. Bradshaw v. Ball, 487 S.W.2d 294,298 (1972).

The Kentucky Bar Association invites and encourages students currently enrolled at the University of Kentucky College of Law, the University of Louisville Louis D. Brandeis School of Law, and the Northern Kentucky University Salmon P. Chase College of Law to enter the KBA Annual Student Writing Competition. This competition o�ers these Kentucky legal scholars the opportunity to earn recognition and a cash award.First, second, and third place awards will be given. Entries must be received by June 1, 2013.

1st Place - $1,000 * 2nd Place - $3003rd Place - $200

Students may enter their previously unpublished articles. Articles entered should be of interest to Kentucky practitioners and follow the suggested guidelines and requirements found in the “General Format”section of the Bench & Bar Editorial Guidelines at www.kybar.org/103.For inquiries concerning the KBA Annual Student Writing Competition, contact Shannon H. Roberts at [email protected] or call (502) 564-3795 ext. 224.

Submit entries with contact information to:Shannon H. RobertsCommunications DepartmentKentucky Bar Association514 West Main StreetFrankfort, KY 40601-1812

*Also includes possible publication in the Bench & Bar.

Call for Entries - Deadline June 1, 2013KBA AnnualStudent WritingCompetition

KBA 2013Annual

Convention June 19-21

Galt House Hotel

Louisville, Ky



By Chief Justice John D. Minton, Jr.

Counsel for indigent criminal defendants

ifty years ago, the United StatesSupreme Court concluded inGideon v. Wainwright1 that, “rea-

son and reflection require us torecognize that in our adversary systemof criminal justice, any person haledinto court, who is too poor to hire alawyer, cannot be assured a fair trialunless counsel is provided for him. Thisseems to us to be an obvious truth.”2

As celebrated in this edition of theBench & Bar and similarly commemo-rated in state bar journals across thenation in 2013, the Gideon decisionestablishing the constitutional right tocounsel has affected more persons inour criminal justice system than anycase in American jurisprudence.

The “obvious truth” recognized fed-erally by Gideon found expression inour state law from the founding of theCommonwealth. Former Chief Justiceof Kentucky John Palmore noted in aJanuary 1965 address to the Governor’sConference on Bail and Right to Coun-sel that “[t]he bill of rights in each ofour four constitutions, beginning in1792, has provided that ‘in all criminalprosecutions the accused has the right tobe heard by himself and counsel,’ andfrom time immemorial our courts havegiven this provision the same meaningthe Supreme Court gives to the parallelguaranty in the Sixth Amendment of thefederal constitution.”3

The Kentucky Court of Appeals –Kentucky’s highest court at the time –recognized the right to counsel for indi-gent criminal defendants in the1908decision of Williams v. Commonwealth,4

noting that “[i]t has been the custom ofthe courts of this state . . . when a pris-oner is unable to employ counsel, forthe court to designate someone todefend him, and it is the duty of suchcounsel, which he owes to his profes-

sion, when so designated, not to with-hold his assistance nor spare his bestexertions in the defense . . . .”5

Despite this early recognition of theconstitutional right to counsel, astatewide public defender system wasnot created in Kentucky until 1972when the Kentucky General Assemblyenacted House Bill 461.6 Before thattime, some counties contracted withlocal lawyers to provide indigentdefense in circuit court. Frequently, thecircuit judge appointed members of thelocal bar to represent indigent defen-dants in criminal cases, regardless of thelawyer’s experience, ability or knowl-edge of criminal law. And there was noprovision for compensation or reim-bursement of expenses in these cases, soappointed lawyers bore the burden oftheir representation.

Shortly after passage of House Bill461, Governor Wendell Fordannounced the appointment of AnthonyWilhoit as the state’s first public advo-cate. And the Kentucky Court ofAppeals rendered Bradshaw v. Ball,7

which declared the representation ofindigent criminal defendants withoutcompensation or reimbursement ofexpenses to be a “substantial depriva-tion of property and constitutionallyinfirm” and required the state to “fur-nish the indigent a competent attorneywhose service does not unconstitution-ally deprive him of his propertywithout just compensation.”8

In the half-century since Gideon,Kentucky has taken great strides toimplement a statewide public defendersystem that provides competent, profes-sional representation to indigentdefendants. This system mirrors ourstatewide unified court system andaffords consistency across the Com-monwealth with respect to the deliveryof services in criminal matters. Theprovision of quality legal service toindigent defendants is imperative to theproper functioning of the courts and to

achieving just and reliable results incriminal cases.

The professional commitment of thelawyers who work for the Common-wealth’s Department of PublicAdvocacy and the Louisville-JeffersonCounty Public Defender Corporationmerits recognition by the bench andbar. Public defenders are often saddledwith seemingly insurmountable case-loads and cases that may, to many,seem indefensible. So I am especiallyappreciative of those who dedicate theirprofessional lives to providing servicesto persons who, as the Court stated inWilliams, “[have] the double misfortuneto be stricken by poverty and accusedof crime.”9

Legal Services in Civil and Criminal Cases

During the past several years, theKentucky Bar Association has focusedefforts on increasing pro bono partici-pation among its members through theKentucky Volunteer Lawyers Program.And the Kentucky Supreme Courtenhanced that effort with the creation ofthe Kentucky Access to Justice Com-mission in 2010. The 2012 KBAConvention marked the kick-off of the“Power of One – How a Lawyer CanChange a Life” campaign, the goal ofwhich is “to improve access to the judi-cial system for low-incomeKentuckians with civil legal needs byincreasing the number of volunteerlawyers and cultivating a culture amongthe bar that encourages pro bonowork.”10

F


Lawyers are Essential in Making “Justice For All” A Reality

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In a 1961 speech to the Massachu-setts legislature, President-Elect John F.Kennedy alluded to a well-known para-ble of faithful servanthood when hestated, “For of those to whom much isgiven, much is required.”11 As lawyers,we enjoy the great privilege of practic-ing law. And we owe it to the public,and our profession, to, as President JohnAdams said, “assist the helpless andfriendless in a worthy cause . . . todevote [our] skill and energy to theplight of another, without the promise ofa material reward for oneself . . . .”12

The message of the Power of Onecampaign is that each Kentucky lawyerhas the power to change the life of a fel-low Kentuckian by providing pro bonoservices to the most underserved andeconomically challenged members of ourcommunities. And, it should be noted,Kentucky lawyers also hold the power toaffect the lives of indigent defendants incriminal cases by participating inassigned counsel programs that assist theDepartment of Public Advocacy and theLouisville-Jefferson County PublicDefender Corporation with conflict casesat the trial and appellate levels for signif-icantly reduced compensation.

Although the Power of One cam-paign focuses on pro bono participationin civil cases, there is a constant andincreasing need for lawyers to volun-teer to take conflict cases in criminalmatters. Across the state, public defend-ers are seeking lawyers to representclients in conflict situations in districtand circuit court and to representclients in appeals of criminal convic-tions to the Kentucky Court of Appealsand the Supreme Court of Kentucky.

Lawyers who volunteer to acceptconflict cases involving indigent defen-dants for the modest compensationprovided by defender offices have theopportunity to make a significant differ-ence in the lives of people in theircommunities and to ensure the efficientoperation of the criminal justice system.The DPA provides training andresources to lawyers who agree to doconflict work in criminal matters and,perhaps most importantly, malpracticecoverage in those cases in which theyaccept conflict appointments.

As we mark the 50th anniversary of

the Gideon decision, we should reflecton the steps that have been taken acrossthe country and in our Commonwealthto provide meaningful counsel to indi-gent defendants in criminal matters.And we should be proud of thestatewide public defender services pro-vided by the Kentucky Department ofPublic Advocacy and the Louisville-Jef-ferson County Public DefenderCorporation.

I encourage all of you to considerjoining the conflict panel of thedefender office in your jurisdiction toensure that the “obvious truth” ofGideon is real in Kentucky’s courts.

ENDNOTES1. 372 U.S. 335 (1963).2. Id. at 344.3. Judge John S. Palmore, Kentucky

Court of Appeals, “Counsel for theIndigent in Criminal Cases,”Address before Governor’s Confer-ence on Bail and Right to Counsel,Jan. 23, 1965.

4. 110 S.W. 339 (Ky. 1908).5. Id. at 340.6. The Louisville-Jefferson County

Public Defender Corporation wasorganized and incorporated in1971.

7. 487 S.W.2d 294 (Ky. 1972).8. Id. at 298.9. Williams, 110 S.W. 339, 340 (1908).10. Jacqueline S. Duncan, “Power of

One – How a Lawyer Can Changea Life,” Program Materials, Ken-tucky Bar Association Convention,2012.

11. See also, Luke 12:48. 12. Letter from John Adams to

Jonathan Sewall, 1759.

John D. Minton,Jr., has servedas chief justiceof the SupremeCourt of Ken-tucky since2008. As headof the JudicialBranch, he is

committed to investing in the peo-ple who operate the court systemand in technology to help courtsreduce costs and deliver betterservice.

Chief Justice Minton formed theTechnology Governance Committeeto create a strategic technologyplan that will allow for e-filing andelectronic services. He also createda commission to establish a fairand competitive salary structure forthe Judicial Branch. Under hisguidance, the Supreme Courtadopted the first uniform family lawrules and formed the KentuckyAccess to Justice Commission toimprove access to civil legal aid tothe poor. As a member of the TaskForce on the Penal Code, he joinedthe Executive and Legislativebranches to curb prison costs andimprove public safety.

Chief Justice Minton holdsdegrees from Western KentuckyUniversity and the University ofKentucky College of Law and previ-ously served as a judge for CircuitCourt and the Court of Appeals. TheKentucky Bar Association honoredhim with its Outstanding JudgeAward in 2003. He was named Dis-tinguished Jurist in 2012 by the UKCollege of Law Alumni Association.

Gary M. Weiss

E-mail: [email protected]

When it’s a question of persuasion...Gary Weiss has a passion to come to the right result.Listed in Best Lawyersin America; Personal Injury Legal MalpracticeAnd now one of only eight Kentucky lawyers named for mediation/arbitration

One of few mediators who maintains anactive practiceso he knows the present value of cases

Principal Address Louisville

Tele: (502) 493-1394

Mediation

[email protected]

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The information and security gamekeeps changing for lawyers and

their clients. One aspect of this is thegrowing asset-base of our clients ininformation itself. Information as anasset may be from the value of rights intrade secrets and copyright, the compet-itive position offered from certainknowledge and the ability to provideservice to their clients and customersbetter than others. Another is in the evermore essential information technologyused to speed and direct commercetoday, something that needs to workwell day in and day out. These are pro-tected by a variety of practices andtechnologies. The effectiveness of thoseprotections may not be as good as theyshould be.

PriceWaterhouseCooper’srecent sur-vey of information security indicatesindustry is satisfied with these protec-tive measures and, in fact, many deemthemselves leaders in this.1 Yet fromtheir detailed responses far fewer actu-ally had an overall security strategy,focused executive control, effective-ness reviews and comprehension ofsecurity events of the past year. Inother words, they were confident oftheir InfoSec systems without evidenceto support it.

Related to this was confidence by astrong majority that their organizationshad a “culture of security.” Yet, again,far fewer actually had practices in placethat would effectively implement thatculture. Most still did not require third-party vendors to report breachesaffecting their data nor comply withtheir privacy policies. Less than halfsaid they used only the customer datathey needed, creating unnecessary tar-get risk.

Ever wonder why so many peoplewant your Social Security number? Everask why?

The PWC survey found, even in thatgeneral confidence, an emerging trenddownward in system confidence, whatthey styled as “A hint of doubt…” Thenumber of security incidents increasedfrom the previous year though thefinancial losses from them declined.But there was no consistency in mea-suring and attribution for losses,including loss of good will and loss ofbusiness. This was matched by an over-all decline in the use of securitytechnologies and polices, perhaps dueto economic constraints.

Lastly, concern with the security ofmobile devices, cloud services andsocial media was growing, but less thanhalf had security strategies for any ofthese.

It is as if only half of the businessworld locked their doors when goinghome at night. This is consistent with aseries of reports on inadequacies in ourinformation security regime going backto the last century.2

This is all within a seemingly pre-modern environment where a lawenforcement response may be anafterthought.

The U.S. Department of Justice isaddressing some of these issues, partic-ularly as to information of specialcompetitive or national security value.

In Kentucky, the Federal Bureau ofInvestigation has held an ongoing seriesof sessions to address the exfiltration ofcompetitive information out of universi-ties to overseas organizations. It isexpanding this with a new program oninformation security practices, policiesand responses.

Key to both programs is first preven-tion and then incident responseinvolving federal law enforcement.

Businesses are sensitive aboutinvolving anyone in a security breachinvolving information because of thepotential damage to good will and cus-tomer relations. Calling in the FBIbrings its own concerns. These pro-grams are meant to walk through theprocess of using federal law enforce-ment and its considerable resources toaid in responding to a breach, just aslocal police would be called about aburglary.

A federal response may, in fact, be theonly effective law enforcement responsefor new technology and data-intensivecompanies. While insider threats remainhigh, focused external attacks continue asvery significant threats. Many of theseare from technologically-sophisticatedcountries far away such that only anagency with transnational resources caneffectively respond.

As lawyers our clients may call on usto help mediate a law enforcementresponse to a security breach. It will bean important role in bringing account-ability to this environment. It will alsohelp protect our clients when, one day,they may be called to account for theirinability to protect their customers.

ENDNOTES1. Changing the game: Key findings

from The Global State ofInformation Security Survey 2013,PriceWaterhouseCooper, LLP,www.pwc.com/security (accessed2/8/2013).

2. See, for example, the NationalCyber Leap Year Summit 2009 Co-Chairs Report, Sept. 16, 2009.

Michael Losavio

SHOP TALK

THE SECURITY OF INFORMATION TODAY


EFFECTIVE LEGAL WRITING

T he proper use of verbs is indispens-able to clear communication. The

verb is the heart of a sentence. Thestronger and sharper the verb, theclearer is a sentence’s meaning.Moreover, without a verb no group ofwords is grammatically a sentence.

English verbs have five properties:person, number, tense, voice, and mood.Person is the property that identifieswhether the subject of the verb is speak-ing (first person), being spoken to(second person), or being spoken about(third person). Number refers towhether a verb is singular or plural.Tense refers to the time of the action ofa verb. Depending upon which gram-marian one cites for authority, Englishhas as few as two or as many as 12tenses.1 Linguistic disagreements aside,for the native speaker of English, per-son, number, and tense tend to bestraightforward. Even without formalinstruction in grammar, the nativespeaker can hear when a verb does notagree with its subject or when a verb’stense is wrong.

Awareness of voice and mood comeslater, perhaps as a middle school studentin a language arts class or later stillwhen preparing to take college entranceexams. Voice indicates whether the sub-ject of the verb is acting or being actedupon. In the active voice, the subjectperforms the action; in the passivevoice, the subject receives the action.Voice gets much attention in legal writ-ing circles because, as Goldstein andLieberman say in The Lawyer’s Guideto Writing Well, lawyers overuse thepassive voice.2

Mood is the property that allowsspeakers to express their attitude towardwhat they are saying. Linguists have

identified many moods in the languagesof the world, but English commonly usesonly three: the indicative, the imperative,and the subjunctive. In the indicativemood, the speaker displays an attitude ofdefiniteness; in the imperative mood, thespeaker displays an attitude of insistence;and in the subjunctive mood, the speakerdisplays an attitude of tentativeness.Understanding verb moods is importantbecause they help provide context forwhat the writer is trying to say.

Imperative Mood A sentence in the imperative mood

indicates that the speaker desires for theaction expressed in the sentence to takeplace. Some of the simplest sentences inEnglish are imperative sentences con-sisting of a single verb. The imperativemood has many uses as demonstratedby the following sentences.

Stop! (Single verb; sounds a warn-ing.)

Everyone get on the bus. (Issues acommand.)

Come live with me and be my love /(Makes a request.)

Climb every mountain / Ford everystream / (Offers advice.)

Turn left at the light onto SouthMain Street. (Provides directions.)

Sign on the dotted line. (Gives aninstruction.)

Keep off the grass. (Announces aprohibition.)

Help yourself to the salad bar.(Makes an offer.)

Notice that in most of these sen-tences, the subject (you) is implied andthat all of them are in the second per-son. A rare exception to the secondperson construction occurs in a sentencelike “Let’s go.” Each of the eight exam-ples above is a “neutral” imperative. Incontrast, an imperative sentence cantake either emphatic or negative form

by respectively appending do or don’t toa neutral imperative.

Wait for me, please. (neutral impera-tive)

Do wait a moment. (emphatic imper-ative)

Don’t wait up for us. (negativeimperative)

Much task-based writing uses theimperative mood (together with activevoice, present tense, and second person)to convey what the reader must do.Think of a checklist you might developfor a client who consults you about awill.3 However, in instrumental legalwriting – the stuff of contracts, wills,regulations, by-laws, and similar docu-ments that set down rules4 – legaldrafters often try to use the imperativewhen they mean instead to state a legalfact or conclusion. That is the properpurpose of the indicative mood.

Indicative MoodThe indicative mood is the verb

mood used in ordinary speech or writingwhen making statements or asking ques-tions. Most of the sentences in thisessay are in the indicative mood. It is, ineffect, the default mood in English.

Any verb tense can be deployedwith the indicative mood, but in instru-mental legal writing the present tenseis preferable.5 As Martineau andSalerno observe, “The legal drafter isseldom tempted to use the past tense,but there is a strong temptation to usethe future tense. The drafter quite natu-rally thinks in terms of the futurebecause whatever is written today willalmost always affect only events in thefuture.”6 Using the present tense andthe indicative mood avoids two prob-lems, both related to the use of theword shall.

English commonly forms the futuretense by combining the modal verbs

By Phillip M. SparkesNKU Chase College of Law

IF I WERE IN THE MOOD

ELW_Mar13.qxd 3/15/13 9:42 AM Page 27


shall or will with the bare infinitive ofthe main verb – “We shall overcome”or “I will be true.” Using the futuretense when drafting legal instrumentsignores the fact that a document speakswhen it applies, not when it wasdrafted. The operative provisions of astatute, a contract, or a will, apply inthe present.7

Take, for example, a contract provi-sion like this: “The law of theCommonwealth of Kentucky shall gov-ern this Agreement.” Imagine that twoyears after execution a dispute arisesand the parties turn to the agreement toresolve a choice of law question.Technically, the contract says that

Kentucky law will govern at someunstated time in the future, but thatmakes no logical sense. Drafting in thepresent tense resolves the ambiguity:“The law of the Commonwealth ofKentucky governs this agreement.”

The second problem avoided by useof the present tense and the indicativemood is the false imperative. Thegrammatical signal for the imperativeis the use of the word shall: “TheSeller shall deliver the goods to theBuyer at the Buyer’s place of busi-ness.” When the imperative is usedproperly, someone (here the contractingSeller) must do or refrain from doingsomething.

The false imperative, however, sub-jects some inanimate thing to anobligation.The drafter uses shall to indi-cate a legal fact or a legal result ratherthan to command.

False imperative: A code enforce-ment board shall consist of nofewer than three (3) members ….(KRS 65.8811)

Alternative: A code enforcementboard consists of no fewer thanthree (3) members … .

False imperative: As used in thischapter and other provisions oflaw, “state local finance officer”shall mean the commissioner ofthe Department for LocalGovernment …. (KRS 68.001)

Alternative: As used in this chapterand other provisions of law, “statelocal finance officer” means thecommissioner of the Departmentfor Local Government ….

False imperative: A violation of thissubsection by a state employeeshall be considered cause for dis-missal …. (KRS 216.530)

Alternative: A state employee’s viola-tion of this subsection is cause fordismissal.

Constructions such as these falseimperatives are so common that tomany legal drafters they sound right.Nevertheless, the error is easy to spot –look for an inanimate object precedingthe word shall. Here is another test –mentally substitute “has a duty to” forshall (or “has a duty not to” for shallnot). If the substitute phrase makessense, the use is proper.

Subjunctive Mood The subjunctive has almost disap-

peared from the language and is thusmore difficult to use correctly thaneither the indicative mood or the imper-ative mood. Of the three moods, thesubjunctive is the one most likely tocause problems for writers.

The most common use of the sub-junctive mood is after if in clauses thatstate a hypothetical or a situation con-trary to fact.

Subjunctive: If I were the defendant,I would settle the case.

Indicative: I think the defendantshould settle the case.


mailto:[email protected]


Subjunctive: If she had run, shemight have become a judge.

Subjunctive: Had she run, she mighthave become a judge.

Indicative: She did not become ajudge.

Clauses that begin with if need notalways be in the subjunctive mood. Forexample, if you suppose something thatcould be true, you can correctly say, “IfI was his lawyer, I could settle thatcase.”

The subjunctive also finds use inclauses beginning with that and express-ing a requirement, suggestion,recommendation, or wish.

Subjunctive: The doctor advised thatI be allowed visitors.

Indicative: The doctor said I couldhave visitors.

Subjunctive: The airline recom-mends that you be at the airport bynoon.

Indicative: The airline told you toarrive at the airport by noon.

Subjunctive: Diane asked that hernecklaces be put in the safe.

Indicative: Diane wanted to keep hernecklaces in the safe.

Notice that in these examples thesubjunctive mood uses be regardless ofperson or number. Absent the need forbe, a sentence in the subjunctive moodwould use the present tense stem alone:“I insist that he resign immediately.” Averb in the subjunctive mood has nothird-person-singular variation.

No single part of speech gives awriter more grief than the verb. Justdon’t let it put you in a bad mood.

ENDNOTES1. Those grammarians who designate

only two tenses (present and past)base their classification on the formchanges of single word verbs (e.g.walk, walked). They do not includethe future tense because it takes thepresent tense form plus an auxiliaryverb (will walk). Grammarians whoconsider both auxiliaries and singleword form changes describe sixtenses (past, present, future, pastperfect, present perfect, and futureperfect). See John C. Hodges andMary E. Whitten, HARBRACE

COLLEGE HANDBOOK 66-67 (6th ed.

1967). But see Diana Hacker, AWRITER’S REFERENCE 180-84 (6th

ed. 2007). (A popular referencework at the college level, it listsnine tenses present, past, and futurewith simple, perfect, and progres-sive forms of each). Still othersdescribe only three tenses (past,present, and future), each with four“aspects” (simple, perfect, progres-sive, and perfect progressive). See,e.g., Bryan A. Garner, THE

REDBOOK: A MANUAL ON LEGAL

STYLE 137 (2002). Aspect thusbecomes a sixth property of a verbthat expresses how the action,event, or state denoted by a verbrelates to the flow of time. See, e.g.,Heather Marie Kosur, Verb Aspect:Simple, Prefect, Progressive,Perfect-Progressive, Suite101.com,(last visited Feb. 1, 2013).

2. Tom Goldstein and Jethro K.Lieberman, THE LAWYER’S GUIDE

TO WRITING WELL 131-2-32 (2nd

ed. 2002).3. An example is at

http://www.nolo.com/

legal-encyclopedia/make-will-quick-checklist-29480.html.

4. See Elizabeth Fajans, Mary R.Falk, and Helene S. Shapo, LegalWriting for Law Practice 445-585(2010).

5. See, e.g., Legislative ResearchCommission, BILL DRAFTING

MANUAL § 304 (Inf. Bull. No. 117rev. 2011) (“Use the present tenseand the indicative mood.”), avail-able at http://www.lrc.ky.gov/lrcpubs/ib117.pdf.

6. Robert J. Martineau and Michael B.Salerno, LEGAL, LEGISLATIVE, AND

RULE DRAFTING IN PLAIN ENGLISH

47 (2005).7. See BILL DRAFTING MANUAL cited

at note 5 (“A statute is regarded asconstantly speaking. It speaks as ofthe time when it is read or applied.It must, therefore, be written in thepresent tense, except for stating acondition precedent to its opera-tion, which should be phrased inthe perfect tense if it is required tobe completed before the statuteapplies.”)

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Harold M JohnsBarbara Lee JohnsonC Darlene JohnsonKevin Wayne JohnsonLon M Johnson JrRickie A JohnsonTyler Hunt JohnsonWilliam E JohnsonWilliam Evan Johnson JrRobert H Johnston IIIMichael B JoinerKaren Louise JonesLeAnders Lisa JonesThomas M JonesJudith K Jones-TolemanDavid Barry JorjaniZachary M KafoglisEdwin F KaginMartin Z Kasdan JrMargaret E KeaneRobert W KeatsWilliam Leslie Keene JrMichael James KeeneyJohn Warren KellerLaurie Goetz KempKatherine Kay KendallWilliam Reeder KenealyJames Venus KerleyThomas R KerrJoshua Ryan KiddJames Albert KidneyPhillip Lynn KimbelAdrian Sol KingBobby Rickey KingEdward Michael KingMeredith Jones KingsleyBrandon Gordon KinneyHarold Lewis Kirtley IIRobert M KirtleySarah Hay KnightRoger Brandon KnothPaul A KonstantyJan Kipp KreutzerDavid Anthony KruerJames R KruerMichael David KummerMartin N KuteJohn F LackeyAshley Nicole LafertyJeffrey Frank LagrewDebra Hembree LambertKenneth W LampeSusan Turner LandisJennifer B LandryJoseph R LaneDavid Richard LangdonTimothy Daniel LangeEdward Charles LanterKevin Paul LaumasStephen Samuel LazarusPamela S LedgewoodJonathon Clay LeeAstrida Liana LemkinsRoland Robert LenardMary A LepperRuth E LernerMarc H LevyMatthew Asher LevyBobbi Jo LewisBrandi N LewisFloyd Allen LewisJohnie Delbert Lewis JrWilliam Andrew LewisColin Hugh LindsayHollie B LindseyJ Robert LinnemanJoseph Scott LisenbeeGary Alan LittleRodger W LoftonPaul Joseph LoftusKristin N LoganJohn M LongmeyerPhilip Michael LongmeyerPhyllis K LonnemanFranklin W LoseyMarc Allen LovellSteven Brian LoyMark Allen Loyd JrDace A Lubans-OttoAlison Case Lundergan-GrimesDavid Eric LycanDeborah LydonJames David LyonJames William Lyon JrMichael W LyonsThomas C LyonsKurt William Maier

Don H MajorAnwar K MalikSamuel Manly Howard Oliver MannQuinten B MarquetteAnthony G MartinEleanor F MartinJason Nicholas MartinRobert Paul MartinFrank Mascagni IIIMarsha Dianne MasonCharles C Mattingly IIIJason Scott MatuskiewiczRandall Scott MayRobin C MayFrederick M MayerJennifer Lee McCaffreySusan Hanrahan McCainBruce Lane McClureKyle Matthew McCormickBrigham A McCownKaren E McCrackenStephen Gray McFaydenRamon McGeeMichael David McKayHeather Mary McKeeverJames Robert McKenzieKatherine E McKuneBrendan Joseph McLeodWilliam F McMurryMelissa D McQueenWilliam V MeaderMark Stephen MedlinGwen MeehanTerra Lynn MeekStephen C MegerleEdwinna Kay MeisterDavid S MejiaMark Allan MelvinMichael C MerrickJames Albert MetryGregory Scott MetzgerAdam Clayton MillerAnn Bond MillerBrendon D MillerJohn Nathaniel MillerJonathan D MillerMark Daron MitchellMichael MitchellKent David MitchnerEdward C MonahanSam Huston MonarchAnneLuise MontgomeryJames H Moore IIIKimberly Anne MooreCarlos MoranJames Walden Morgan JrKevan MorganRussell Brent MorganBrian M MorrisNina Louise MoseleyTeri Lynn MosierMartha Jane MulhollandLeo Patrick MulliganAaron Michael MurphyMelinda Ann MurphyC David MussetterTerri Renee MussetterGregg Y NealJoseph James NeelyKerry Lee NeffCharles C NettRachael Anne NeugentNicholas John NeumannPeter Canavan NewberrySamuel Ryan NewcombRobert Brand NewmanCharlotte A NickersonChristina E NobleDennis Leo Nordhoff IIChristopher S NordlohDennis L NullDaniel Brian O'BrienStephen M O'Brien IIIGeorge R O'BryanMichelle Marie O'BryanPaul Connor O'BryanLynne Marie O'ConnorHarry Bernard O'Donnell IVMichael A O'HaraRebecca Jean O'NeillJesse Earl OffillJohn Edwin OlashSteven J OlshewskyK Osi OnyekwulujeDavid Andrew OwenAnnie L Owens

Ross Collins Owens IIIAshley Cleek PackPaul Lester PackKenneth P PadgettJames D PaitselAndrew Michael PalmerStephen PalmerAddison ParkerTimothy Alan ParkerD Steven ParksC Fred PartinDan Franklin PartinDjenita M PasicJosian A PassalacquaTandy C PatrickWilliam Lewis PatrickJaime Lynne PattersonJohn Judson PattersonKristen Reiss PellinoJohn E PenceCharlie M PerkinsStephanie Judy PerlowKirk M PfeffermanCaroline Lynch PieroniNed Barry PillersdorfRobert David PinsonMichael M PitmanJoseph Anthony PitoccoDebra Seitz PleatmanStephen Howard PoindexterShari PolurBrenda PopplewellCarson P PorterRichard C Porter Jr Sherry P PorterStephen T PorterClifford Keith PowellNicole M PrebeckHaley Anne PrevattG Kent PriceKimberly S H PriceBruce D PrizantPatricia Marie PryorBenjamin T D PughMarco Mike Rajkovich JrMichael R RamageThomas Anthony RaufRonald D RayRobert Thomas RazzanoJason Charles ReichenbachWilliam Darlos ReynoldsRobert Edward RichEdwin Douglas RichardsLucy Barker RichardsonBonnie Jamae RickertCharles E Ricketts JrNathan RiggsNicholas W RiggsVirginia Maria Riggs-HortonChristopher R RingJames O RischMichael D RisleyDennis Michael RitchieStephanie Dawn RitchieMary Kelly RivesTheodore M RobbinsCharles E RobertsJoe T RobertsMaryanna RobinsonBenjamin D RogersLarry Edward RogersAlan W RolesAileen Salud RoseJoshua Taylor RoseJay Arthur RosenbergJohn M RosenbergMartha Alice RosenbergPeter Allen RoushMichael A RowadyBrantley Cole RowlenLynette Shari RoyAndrew Lee RubenDavid Brian RubinsteinAdam Michael RussellKristin M RussellRonald Joseph RussellHarry J RustKathryn W RyanPerry Thomas RyanBrian Keith SaksefskiJeffery Lynn SalleeStephen Craig SandersRobert D SchaadSteven C SchletkerChristopher P SchlueterBenjamin SchmidtJohn Anthony Schmidt

Daniel Edward SchmittGregory Thomas SchmittThomas David SchneidW Fletcher SchrockMarcus Shane SchultePaul Roman SchurmanJudy Freeman SchwankRyan A SchwartzLindsey ScottTasha Kay ScottThomas Arthur Scott JrM Thurman SennMary E SergentStephen K SesserRobert F Sexton IIITricia P ShackelfordSaeid ShafizadehHervey Linwood Shannon IIIMary Witt SharpMary Angela ShaughnessyKevin Scott ShearerKaren Lee ShinkleRobert S Silverthorn JrLeslie N SimmonsGregory Dean SimmsLarry D SimonBobby Cierna SimpsonMichael G SimsBruce W SingletonAmber Hunt SiscoRobin Renee SlaterMichael R SlaughterMat Antony SlechterMeredith K SlechterRoxann R SmalleyMark Anthony SmedalDanny Ray SmithJames David SmithJessica Morgan SmithJoel Randolph SmithMitzie V SmithRobyn Rochelle SmithSteven R SmithMark Francis SommerJessica Tipton SorrelsKenneth SouthallAmanda Marie SpaldingDawn Lynne SpaldingDavid Thomas SparksLloyd Emory SpearAlexander G StaffieriRobert Joseph StanzMark Joseph StanzianoJohn Warren StapletonLeonard Joseph StaytonJamie Lynne StephensKenneth S SteppJohn F StewartWilliam Kash Stilz JrMatthew Atwood StinnettSusan Faye StiversPaul Robert StokesThomas K StoneR James StrausRandall Scott StrauseCharles Robert Streich IIIDavid C W StuartDonald Wes SullengerDavid Shawn SullivanMichael P SullivanThomas Edgar SwicegoodLaurel K SwilleyMary Patia Rae TabarAnthony B TagaviAlex F TalbottDamon R TalleyJohn Lewis TateDavid Allen TaylorEdwin Evans TaylorKembra Sexton TaylorLeonard W Taylor IIIMarsha TaylorMichael A TaylorT Rankin Terry JrDonald Anthony ThomasPamela J P ThomasStephen H ThomasCynthia C ThompsonDavid T ThompsonDavid W ThompsonGary Wayne ThompsonKyle Thomas ThompsonMichael James ThompsonSteven O ThorntonRobert Joseph ThumannPeter Lee Thurman JrArlette Cooper Tinsley

Christina M TobinNathan Blaze TomlinChristian L TorpTodd Kirby TrautweinDavid Clifton TravisMason Lee TrenamanDavid Andrew TreveyBarry M TrifilettiMichael D TriplettMichael Thomas TroutmanNoelle H TrueJohnnie Lloyd TurnerRobert Steven UkeileyStuart Glen W UlfertsK Megan UptonSusan Jeanne Van ZantJames J Varellas JrNicholas C A VaughnIversy Zayas VelezRebecca Cox VenterHarold Louis VickStephen Deems VidmerDavid L VishRobert Matthew VitalGreg Dewey VossAustin P VowelsJan R WaddellHeather H WadeWilliam R WadeNorman Lee Wagner JrCharles Aaron WalkerRichard Adolph WalkerCatherine I WallaceMark B Wallace Richard Lee WallsDana Geneen Walton-MacaulayWilliam T WarnerKeith A WarrenSally Ann WasielewskiPatrick Henry WatsonDavid G WebbDerwin Lamont WebbKatharine C WeberNeil S WeinerKevin Patrick WeisAndrea Keith WelkerLisa M WellsPatrick J WelshCharles P WestCharles S WestGail Webb WestJames Moberly WestSteven L WestPaul Lewellin WhalenJonathan Dale WhitakerLarry WhitakerJohn Andrew WhiteScott WhiteAnna Stewart WhitesJeffrey Kent WickerMary Jo WickerMark Kindred WickershamChristopher D WiestMary Erin WilkinsHoward Douglas WillenThomas Brandt WillenborgArthur Lee WilliamsCordell Hull Williams Jr Michelle Lynn WilliamsSusan Lynn WilliamsEdward A WilsonJohn Paul WilsonMildred Gail WilsonJames Daniel WinchellWilliam O WindchyDarran WinslowMeagan Ruth WintersMark Alan WohlanderKay L WolfJoseph H WolfeMark H WoloshinMichael A WoloshinBobby G WomblesJerry Lee WrightSarah Charles WrightTodd Russell WrightShelli D D YoakumMichael M YorkGregory Eugene YoungMary James YoungShane Alan YoungBruce A YungmanJennifer E ZellJohn Frederick Zink


Subject: Ethical Considerations Relating to a Lawyer’s Use of Social Network Sites1 to Benefit a Client2

Question: May a lawyer access or otherwise use the social network site of a third person to benefit a client?Answer: A lawyer may access or otherwise use the social network site of a third person to benefit a client, as long as the

conduct does not violate the Rules of Professional Conduct.References: SCR 3.130 (3.5), (4.1), (4.2), (4.3), (8.4) (a) and (c); Risk Managing Internet Social Network Investigations, 23 The

Risk Manager (newsletter of Lawyers Mutual Ins. Co. of Ky.) (Spring 2012), www.lmick.com/resources/the-risk-manager-by-year/187-newsletter-2012.html; Journal of Computer-Mediated Communications (2007); San DiegoCo. Bar Op. 2011-12 (2011); N.Y. State Bar Assn. Op. 843 (2010).

IntroductionThe dramatic changes in information technology and the growth of social network sites such as Facebook have significantly

changed the way people communicate. At the same time, these changes have made a wealth of personal information available over theinternet. While many use these networks for social purposes, connecting with friends and family, they also can be used for businessand professional purposes and may be a valuable resource for a practicing lawyer. Information posted on the social network site of anadverse party, a witness, juror or other third person could be very useful to the lawyer investigating a matter on behalf of a client.

The Committee has received several inquiries regarding the use of social network sites and the extent to which lawyers may go toobtain access to information from the site of an opponent or other third person. In addressing these issues, the Committee perceivedtwo challenges. First, ethical issues raised by modern technology were not even imagined by the drafters of the Rules of ProfessionalConduct. However, after considerable discussion the Committee concluded that, despite the advances in technology, the core ethicalprinciples upon which the profession has relied for generations – honesty and fairness – remain unchanged. In the final analysis,though social networking may appear to raise new ethical issues that might require new rules, the current rules adequately addressthose issues that have been brought to the attention of the Committee. For example, if the Rules of Professional Conduct prohibitlawyers from contacting jurors or communicating with represented parties in the non-technical world, they prohibit such conduct inthe virtual world. The underlying principles of fairness and honesty are the same, regardless of context.

The second challenge related to the specific scenarios that the Committee was asked to address. We quickly realized that socialnetworking is extraordinarily complex and is being modified constantly. In addition, new systems are being developed every day andit is beyond the Committee’s capacity to imagine what might develop in the future. Because of this, it is not possible to draft an opin-ion with specific scenarios that would be comprehensive and enduring. Nevertheless, the Committee believes it would be helpful toaddress the basic Rules of Professional Conduct that might be implicated when a lawyer accesses or otherwise uses a social networksite to benefit a client. Specifically, those rules are:

• SCR 3.130(4.1) Truthfulness in Statements to Others• SCR 3.130(4.2) Communication with Person Represented by Counsel• SCR 3.130(4.3) Dealing with Unrepresented Person• SCR 3.130(3.5) Impartiality and Decorum of the Tribunal• SCR 3.130(8.4(a)(c)) Misconduct

Some inquiries have focused on whether a lawyer may access the site of a third person. If the site is “public,” and accessible toall, then there does not appear to be any ethical issue.3 If, however, access is limited, then there may be issues of what the lawyer cando to gain access. The Rules of Professional Conduct require truthfulness and honesty in dealing with others. Specifically, SCR 3.130(4.1) prohibits a lawyer from making false statements.4 Also relevant is SCR 3.130(8.4), which prohibits the lawyer from engaging indishonest conduct.5

Social network sites generally permit certain people to send messages to others. A lawyer’s communication with someone repre-sented by counsel is addressed by SCR 3.130(4.2), which generally prohibits direct contact.6 To the extent that someone isrepresented by counsel, it would apply. The Commentary to Rule 4.2 explains that the rule is to protect against uncounseled disclo-sures and applies even though the represented person initiates or consents to the contact.7 If a person with whom the lawyer iscommunicating is unrepresented, such as a witness,then SCR 3.130 (4.3) would apply.8 The Rules of Professional Conduct,9 as wellas various statutes and court rules, prohibit improper contact with jurors. Those prohibitions would apply in the social network con-text as well.

Finally, questions have arisen as to whether a lawyer may request a third person, such as a paraprofessional, investigator or othernon-lawyer staff member, to obtain information through means that the lawyer could not ethically use. SCR 3.130 (8.4)10 and theComments11 normally would prohibit such conduct. As a general rule, a lawyer cannot use another to do that which the lawyer is pro-hibited from doing.

ADVISORY ETHICS OPINION

ETHICS OPINION KBA E-434November 17, 2012


ConclusionSocial networking and other technological advances have provided, and will continue to provide, endless possibilities for obtain-

ing information that may be useful in the representation of a client. These systems are extraordinarily complicated and constantlychanging, and thus it would be impossible to address every possible ethical consideration that might arise in conjunction with the useof social network sites. Several core principles are clear. Every lawyer is bound by the Rules of Professional Conduct. Those rulesprohibit a lawyer from misrepresenting material facts, or engaging in conduct involving dishonesty, fraud, deceit or misrepresenta-tion. They also provide that a lawyer may not communicate with persons represented by counsel or state or imply disinterest indealing with unrepresented persons. In addition, the rules prohibit improper contact with jurors. Finally, Rule 8.4(a) prohibits alawyer from using a third person to engage in conduct that would violate the Rules of Professional Conduct, if done by a lawyer. Alawyer must keep all of these rules in mind when deciding the appropriate use of social network sites.

Note to ReaderThis ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of

Kentucky Supreme Court Rule 3.530. Note that the Rule provides: “Both informal and formal opinions shall be advisory only; however,no attorney shall be disciplined for any professional act performed by that attorney in compliance with an informal opinion furnishedby the Ethics Committee member pursuant to such attorney’s written request, provided that the written request clearly, fairly, accuratelyand completely states such attorney’s contemplated professional act.”

1. Social networks, as commonly understood at the time this opinion was written, include web-based services that allow individuals tobuild a public or semi-public bounded system; to identify users with whom they share a connection and view and traverse their listof connections and those made by others in the system. boyd, d. m. and Ellison, N. B., Social network sites: Definition, history, andscholarship, Journal of Computer-Mediated Communications (2007), http://jcmc.indiana.edu/vol13/issue1/boyd.ellison.html.

2. This opinion only addresses ethical considerations relating to the lawyer’s use of social network sites of third persons. It doesnot address the ethical restrictions on a lawyer’s use of his or her own social network site for advertising or other purposes.

3. See, San Diego Co. Bar Op. 2011-2 (2011). See also, N.Y. Bar Assn. Op. 843 (2010).4. SCR 3.130(4.1) provides: “In the course of representing a client a lawyer:(a) shall not knowingly make a false statement of

material fact or law to a third person; and (b) if a false statement of material fact or law has been made, shall take reasonableremedial measures to avoid assisting a fraudulent or criminal act by a client including, if necessary, disclosure of a material fact,unless prohibited by Rule 1.6.”

5. SCR 3.130(8.4(a),(b),(c)) provides: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules ofProfessional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminalact that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conductinvolving dishonesty, fraud, deceit or misrepresentation….”

6. SCR 3.130(4.2) provides: “In representing a client, a lawyer shall not communicate about the subject of the representation witha person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the otherlawyer or is authorized to do so by law or a court order.”

7. See Comments 1 and 3 to Rule 4.2.8. SCR 3.130(4.3) provides: “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not

state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented personmisunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Thelawyer shall not give legal advice to an unrepresented person. The lawyer may suggest that the unrepresented person securecounsel.”

9. SCR 3.130(3.5) provides: “A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by meansprohibited by law; (b) communicate ex parte with such a person as to the merits of the cause except as permitted by law or courtorder; (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited bylaw, local rule, or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communica-tion involves misrepresentation, coercion, duress or harassment; or (d) engage in conduct intended to disrupt the tribunal.”

10. SCR 3.130(8.4) provides that it is “professional misconduct for a lawyer to assist or induce another to engage in conduct thatviolates the Rules of Professional Conduct.”

11. Comment 1 to Rule 8.4 provides: “Lawyers are subject to discipline when they violate or attempt to violate the Rules of Profes-sional Conduct, knowingly assist or induce another to do so or do so through the acts of another, as when they request orinstruct an agent to do so on the lawyer’s behalf.”


Subject: Plea Agreements Waiving the Right to Pursue an Ineffective Assistance of Counsel ClaimQuestion 1: May a criminal defense lawyer advise a client with regard to a plea agreement that waives the client’s right to pur-

sue a claim of ineffective assistance of counsel as part of the waiver of the right to collaterally attack a convictioncovered by the plea agreement?

Answer: No.Question 2: May a prosecutor propose a plea agreement that requires a waiver of the defendant’s or potential defendant’s right

to pursue a claim of ineffective assistance of counsel relating to the matter that is the subject of the plea agreement?Answer: No.References: SCR 3.130 [Kentucky Rules of Professional Conduct] (1.7, 1.8(h)(1), 3.8(b), 3.8 Cmt 1, 8.4(a)); Va. State Bar

Legal Eth. Op. 1857 (2011); Mo. S. Ct. Adv. Comm. Formal Op. 126 (2009); Ohio Adv. Op. 2001-6 (2001); Vt.Adv. Eth. Op. 95-04 (1995); N.C. Eth. Op. RPC 129 (1993). Tex. Eth. Op. 571 (2006) Az. Eth. Op. 95-08 (1995)

Question 1 DiscussionDefense Counsel May Not Advise a Client about a Plea Agreement Involving a Waiver of the Right to Pursue an IneffectiveAssistance of Counsel Claim Related to the Subject of the Plea Agreement

Prosecutors sometimes propose plea agreements that bar collateral attacks on convictions that result from the plea agreements.Sometimes these plea agreement proposals require the defendant to waive the right to pursue a claim of ineffective assistance ofcounsel. The question that has arisen is whether defense counsel may ethically advise the client about a plea agreement proposal thatbars the client from later pursuing a claim of ineffective assistance of counsel related to the conviction that results from the pleaagreement. In effect, the question is whether defense counsel may advise the client regarding a waiver of a claim of ineffective assis-tance of counsel that would be based on the attorney’s own conduct in representing the client. Because the offered plea agreementcreates a conflict of interest under SCR 3.130(1.7) for the attorney that cannot be waived, such an attorney ethically cannot advise aclient about such an agreement.

SCR 3.130(1.7(a)) states in pertinent part:(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflictof interest. A concurrent conflict of interest exists if: …

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s respon-sibilities to another client, a former client or a third person or by a personal interest of the lawyer.

The lawyer in the plea agreement setting has a “personal interest” that creates a “significant risk” that the representation of theclient “will be materially limited.” The lawyer has a clear interest in not having his or her representation of the client challenged onthe basis of ineffective assistance of counsel. The lawyer certainly has a personal interest in not having his or her representation ofthe client found to be constitutionally ineffective.

Even in cases of concurrent conflict, SCR 3.130(1.7) allows a representation to occur if, among other requirements, “the lawyerreasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”SCR(1.7(b)(1)). A lawyer cannot reasonably believe that he or she can provide competent representation when the lawyer is taskedwith advising the client about a plea agreement involving a waiver of the right to pursue a claim of ineffective assistance of counselwhen that claim would be based on the attorney’s own conduct in representing the client.

This reasoning is consistent with the reasoning surrounding SCR 3.130(1.8(h)(1)). Rule 1.8(h)(1) states: “A lawyer shall not: (1)make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently repre-sented in making the agreement.” Thus, a lawyer cannot ethically advise the client when the issue is the attorney’s own conduct.

Rule 1.8(h)(1) does not directly apply to the plea agreement situation because the issue in the plea agreement situation is a waiverof the client’s ineffective assistance claim, not a waiver or limitation of a malpractice claim. Yet, the underlying basis for a malprac-tice claim is the attorney’s own professional conduct. Likewise, the underlying basis for an ineffective assistance of counsel claim isthe attorney’s own professional conduct. If a lawyer ethically cannot advise a client about a malpractice limitation, a lawyer ethicallycannot advise a client about an ineffective assistance of counsel waiver.

Other ethics bodies have reached the conclusion that defense counsel may not advise the client on a plea agreement when theagreement involves a waiver of the right to later claim ineffective assistance of counsel. See, e.g., Va. State Bar Legal Eth. Op. 1857(2011); Mo. S. Ct. Adv. Comm. Formal Op. 126 (2009); Ohio Adv. Op. 2001-6 (2001); Vt. Adv. Eth. Op. 95-04 (1995); N.C. Eth.Op. RPC 129 (1993). But see Tex. Eth. Op. 571 (2006) (conflict of interest must be evaluated on a case by case basis); Az. Eth. Op.95-08 (1995)(Rule 1.8 not a bar to defense counsel’s participation; no discussion of the conflict of interest).


ETHICS OPINION KBA E-435November 17, 2012


Question 2 DiscussionA Prosecutor May Not Propose a Plea Agreement Requiring a Waiver of the Right to Pursue an Ineffective Assistance of CounselClaim Relating to the Matter that is the Subject of the Plea Agreement

A prosecutor cannot ethically offer a plea agreement to a defendant or potential defendant that requires that the person waive hisor her right to pursue an ineffective assistance of counsel claim relating to the representation in the matter that involves the pleaagreement. Accord Va. State Bar Legal Eth. Op. 1857 (2011); Mo. S. Ct. Adv. Comm. Formal Op. 126 (2009); Ohio Adv. Op. 2001-6(2001); N.C. Eth. Op. RPC 129 (1993).As Comment 1 to SCR 3.130(3.8) states:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with itspecific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficientevidence.

SCR 3.130(3.8) Cmt 1. SCR 3.130(3.8(b)) requires a prosecutor to “make reasonable efforts to assure that the accused has beenadvised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.” Inaddition, SCR 3.130(8.4(a)) states:

It is professional misconduct for a lawyer to:(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do sothrough the acts of another.

SCR 3.130(8.4(a)).It is inconsistent with the prosecutor’s role as a minister of justice and the spirit of SCR(3.8(b)) for a prosecutor to propose a plea

agreement that requires the individual to waive his or her right to pursue a claim of ineffective assistance of counsel. Accord Mo. S.Ct. Adv. Comm. Formal Op. 126 (2009).

In making such a proposal, a prosecutor is assisting or inducing another lawyer, defense counsel, to violate the Rules of Profes-sional Conduct, conduct proscribed by Rule 8.4(a). Accord Va. State Bar Legal Eth. Op. 1857 (2011).

Note to ReaderThis ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Ken-tucky Supreme Court Rule 3.530. Note that the Rule provides: “Both informal and formal opinions shall be advisory only; however,no attorney shall be disciplined for any professional act performed by that attorney in compliance with an informal opinion furnishedby the Ethics Committee member pursuant to such attorney’s written request, provided that the written request clearly, fairly, accuratelyand completely states such attorney’s contemplated professional act.”


Question 1: Can a non-lawyer request that a board or agency initiate an administrative action and grant a hearing or file an answeron behalf of an otherwise unrepresented corporation or other artificial entity in an administrative hearing?

Answer: No.Question 2: Can a non-lawyer call himself or others, on behalf of an otherwise unrepresented corporation or other artificial entity,

as a witness and provide fact testimony at an administrative hearing?Answer: No. Question 3: Can a hearing officer call a witness to provide fact testimony at an administrative hearing? Answer: Qualified yes. While the hearing officer may not call a witness specifically on behalf of the corporation or other arti-

ficial entity the hearing officer may call a witness in order to elicit all relevant facts that may be necessary to conductthe hearing.

References: SCR 3.020, Turner v. Kentucky Bar Association, 980 S.W.2d 560 (Ky. 1998), SCR 3.130-5.5, Countrywide HomeLoans, Inc. et. al v. Kentucky Bar Association,113 S.W. 3d 105 (Ky. 2003), KBA U-52, KBA U-3, KBA U-12, KBAU-15, KBA U-17, KBA U-43, Kentucky State Bar Assn. v. Henry Vogt Machine Co., 416 S.W.2d 727 (Ky. 1967),KBA U-34, Secretary, Labor Cabinet v. Boston Gear, Inc., 25 S.W.3d 130 (Ky. 2000).

AUTHORITYSCR 3.020 defines the practice of law. The Supreme Court of Kentucky has the exclusive authority to promulgate rules governing

the practice of law. Turner v. Kentucky Bar Association, 980 S.W.2d 560 (Ky. 1998).The compelling reason for such regulation is to protect the public against rendition of legal services by unqualified persons. Com-

ment to Kentucky Rule of Professional Conduct SCR 3.130-5.5. The practice of law is defined by SCR 3.020 as any service “involving legal knowledge or legal advice, whether of representation,

counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requir-ing the services.”

The “unauthorized” practice of law is the performance of those defined services by non-lawyers for others. Countrywide HomeLoans, Inc. et. al v. Kentucky Bar Association,113 S.W. 2d 105 (Ky. 2003).

Corporations are not permitted to practice law in the Commonwealth. Kentucky Bar Association v. Tussey, 476 S.W.2d 177 (Ky.1972); KBA U-32; Kentucky Bar Association v. Legal Alternatives, Inc., 792 S.W.2d 368 (Ky. 1990).

OPINIONThe questions presented in this opinion are not completely new and for the most part have been addressed in previous formal unau-

thorized practice opinions.The KBA, in Opinion U-52, addressed these issues in part when presented with the question of whether or not a non-lawyer may

represent parties before the Kentucky Department of Workers’ Claims. The opinion held that non-attorneys may not represent partiesbefore the agency because “[r]epresentation of parties before administrative agencies is the practice of law, as it necessarily involveslegal advice, counsel and advocacy.”

Also, U-52, summarizing previous related opinions, stated:“Non-lawyers have been prohibited from representing corporations and individuals before the Kentucky Department of Transporta-

tion (Opinion KBA U-3); before a city civil service commission (Opinion KBA U-12); before the Kentucky Unemployment InsuranceCommission (Opinion KBA U-15); before the Kentucky Board of Tax Appeals (Opinion KBA U-17) and in quasi-adjudicative proceed-ings before zoning boards and zoning authorities (Opinion KBA U-43) See also Kentucky State Bar Assn. v. Henry Vogt Machine Co.,Ky., 416 S.W.2d 727 (1967).”

In addition to the UPL Opinions referenced above, the Bar Association has also held that a non-attorney may not appear before afaculty grievance committee as a representative of another individual in proceedings before the university faculty grievance commit-tee. (KBA U-34). Furthermore, U-34 advises that where a member of a quasi-judicial body knows that the person is not licensed topractice law in the Commonwealth of Kentucky, that member would be aiding in the unauthorized practice of law to allow the non-attorney to appear in front of that committee. However, Secretary, Labor Cabinet v. Boston Gear, Inc., 25 S.W.3d 130 (Ky. 2000)clarifies that it may be necessary for a hearing officer to “ ‘fully elicit’ all relevant facts” at a hearing, which may require taking testi-mony from a non-attorney. Id. at 134. That would not be considered the unauthorized practice of law.

Note to ReaderThis unauthorized practice opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association

under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). Note that the Rule provides in part: “Both infor-mal and formal opinions shall be advisory only.”


UNAUTHORIZED PRACTICE OF LAW OPINION KBA U-64November 2012


Kentucky Bar AssociationStatements of Financial Position

June 30, 2012 and June 30, 2011Unaudited*

* Pursuant to SCR 3.120 (8), there shall be an annual audit of the Kentucky Bar Association. The Audited Financial Statements and Report can be found on the website at http://www.kybar.org/documents/membership/KBA_ �nancial_ stmt.pdf

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This opinion addresses the following question:

MAY A DISTRICT COURT TRIAL COMMISSIONER CONTINUE TO SERVE IN THAT CAPACITY IF THECOMMISSIONER’S LAW PARTNER BECOMES AN ASSISTANT COMMONWEALTH’S ATTORNEY?

The Committee is of the opinion, Judge Taylor dissenting, that if the Commissioner’s law partner should become an Assis-tant Commonwealth’s Attorney, there would be an appearance of impropriety and the Commissioner could not continue toserve.

THE FACTS AS STATED BY THE COMMISSIONER

The Commissioner offers for consideration the fact that he serves under the authority of SCR 5.000 et seq. and has onlythe powers specifically listed under SCR 5.030. As to criminal cases he recites that he only has authority to issue search war-rants and warrants of arrest; to examine any charge and commit the defendant to jail or hold him to bail or other form ofpretrial release; and to accept a plea of guilty at the time the charge is examined, and impose a sentence for an offense punish-able only by fine of $500 or less. He recites that he is not permitted to conduct preliminary hearings, or hold any hearings onwhich jail is a potential sentence, whether it is a misdemeanor or felony.

The Commissioner advises that the Commonwealth’s Attorney does not appear before the District Court in his judicial cir-cuit, and that the Commonwealth’s Attorney has never approached him for the issuance of search warrants or warrants ofarrest. He advises that his partner would keep no files pertaining to his employment at the partnership office, as all such filesare kept at the office of the Commonwealth’s Attorney. He states that neither his partner, nor anyone from the office of theCommonwealth’s Attorney, would practice before him as Trial Commissioner, and that he would not practice any criminal lawin the circuit court while his partner was an Assistant Commonwealth’s Attorney.

AUTHORITIES CITED BY THE COMMISSIONER

The Commissioner cites the following as support for his position that the appointment of his partner as an Assistant Com-monwealth’s Attorney would not create a conflict.

On July 24, 1989, the Commissioner wrote the Committee a letter posing the same question now in issue. On August 7,1989, the Commissioner had a telephone conversation with then Committee Chairman, B. M. Westberry, regarding the ques-tion. The Commissioner’s handwritten notes memorializing that conversation indicate that a copy of JE 47 would be sent tohim, with the following response by Chairman Westberry:

No problem but I must disqualify from appearance before me by Comm. Attys office.

By letter of August 7, 1989, the Executive Secretary of the Committee sent the Commissioner a copy of JE 47.

In JE 47, published in October of 1983, the question posed was:

Where the county attorney and the trial commissioner for district court are partners in civil practice, must thetrial commissioner disqualify himself in all cases in which the county attorney appears, both civil and criminal

The Committee responded: “Yes, except in emergency situations where a failure to act would result in a frustration of thecriminal justice process.” The opinion referred to JE 44, published in January of 1983, in which the pertinent question was:

May the partner of a district court trial Commissioner practice in that court? If so, are there any limitations onthe practice in which he may engage?

JUDICIAL ETHICS OPINION

JUDICIAL ETHICS OPINION JE-123February 19, 2013


The Committee responded: “He may practice in that court as in any other court. In cases in which the trial Commissioneris acting, the latter must disqualify himself in appropriate cases as provided in Canon 3C.”1 In both JE 44 and JE 47 the essen-tial reasoning was that there was an appearance of impropriety.

The Commissioner also cites the Committee to KBA E-214, published in March of 1979, and JE 47 also refers to thatethics opinion.

OPINION

With due respect for the cited KBA ethics opinion2 and JE 44 and JE 47, those opinions were issued without the benefit ofCommonwealth v. Brandenburg, 114 S.W.3d 830 (Ky. 2003), and it is that case by which the Committee is to be guided inresponding to the immediate question. There, the Court stated, at 832:

The sole issue before us is whether a trial commissioner who is married to an employee of the Commonwealth Attor-ney’s office, “manifest[s] that neutrality and detachment demanded of a judicial officer when presented with a warrantapplication for a search and seizure.” [Citation omitted] We hold that in the case sub judice, the trial commissioner,due simply to her marital status, was not the neutral and detached magistrate that the Fourth Amendment to the UnitedStates Constitution, Section 10 of the Kentucky Constitution, and the United States Supreme Court guarantee.

Brandenburg went on to discuss the application of the Code of Judicial Conduct, SCR 4.300. The Court noted that Canon2 of the Code states, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Canon3E(1) requires that a judge disqualify himself when his impartiality “might reasonably be questioned.” The Court also said:

SCR 5.070 makes trial commissioners of the district court subject to the Supreme Court’s rules governing theretirement and removal of judges. Also, SCR 5.050 governs the disqualification of trial commissioners andholds that “[a] trial commissioner shall disqualify himself in all matters in which he has an interest, relation-ship or bias that would disqualify a judge.”

At 833, the Court stated:

The Court of Appeals has addressed such a situation in Dixon v. Commonwealth, Ky. App., 890 S.W.2d 629(1994), wherein it held that a trial commissioner who was the law partner of the County Attorney was not aneutral and detached magistrate capable of making probable cause determinations for search warrants. Id. at630. The court in Dixon found that the mere association with the County Attorney created an appearance ofimpropriety, in violation of Canon 2 of the Code, which destroyed the trial commissioner’s character as a neu-tral and detached issuing authority. Id. at 631. We agree with the Court of Appeals’ reasoning in Dixon, andhereby extend the holding of that case to apply to situations such as in the case at bar, where the trial commis-sioner is the spouse of an employee of the Commonwealth Attorney’s office.

Referring to its own opinions on similar matters, the Court stated:

However, this Court has spoken to this issue on only a few instances. In O’Hara v. Kentucky Bar Association, Ky.,535 S.W.2d 83 (1975), we affirmed an ethics opinion adopted by the Kentucky Bar Association that stated a trial com-missioner could not be a member of the same law firm as the Commonwealth Attorney.

Brandenburg concluded, at 834:

Today’s opinion takes a harsher stance against the propriety of judges and trial commissioners having closepersonal relationships with others who may be in a position to influence their decision-making. We reiteratethat there need not be an actual claim of bias or impropriety levied, but the mere appearance that such animpropriety might exist is enough to implicate due process concerns.

Returning to Dixon, supra, the Committee perceives no difference, for purpose of analysis, between a trial commissionerbeing a partner of a county attorney or being the partner of an attorney for the Commonwealth, since both county and Com-monwealth’s attorneys have prosecutorial duties.


The opinion in O’Hara, supra, is a model of brevity, but powerful in its simplicity.3 The Court said:

The appellants, members of the same firm who have occupied those positions for a number of years, arguethat there have never been accusations or insinuations of impropriety during the time of this professional asso-ciation or of a failure to fulfill the duties required by their respective offices. They point out the unlikelihoodor virtual impossibility of effecting any impropriety with regard to their respective offices. The appellees saythat no impropriety is suggested with regard to these appellants.The point is not whether impropriety exists, but that any appearance of impropriety is to be avoided. We are ofthe opinion that such association carries with it an appearance of impropriety so that it should not be permitted.

The Committee believes that the conclusions of the Court in Brandenburg, Dixon and O’Hara compel our opinion that,should the law partner of the inquiring Commissioner become an Assistant Commonwealth’s Attorney, there would be anappearance of impropriety, and the Commissioner could no longer serve as a commissioner.

Please be aware that opinions issued by or on behalf of the Committee are restricted to the content and scope of theCanons of Judicial Ethics and legal authority interpreting those Canons, and the fact situation on which an opinion is basedmay be affected by other laws or regulations. Persons contacting the Judicial Ethics Committee are strongly encouraged toseek counsel of their own choosing to determine any unintended legal consequences of any opinion given by the Committee orsome of its members.

cc: Donald H. Combs, Esq.The Honorable Jeff Taylor, JudgeThe Honorable Jean Chenault Logue, JudgeThe Honorable Jeffrey Scott Lawless, JudgeJean Collier, Esq.

1. Current Canon 3E. 2. While this Committee takes no issue with the substance of KBA E-214, it should be noted that ethics opinions of the Ken-

tucky Bar Association apply only to lawyers. Judges, and those persons acting in a judicial capacity, are governed by theKentucky Code of Judicial Conduct, SCR 4.300 et seq.

3. The Committee recognizes that the Court was considering a KBA ethics opinion, but believes the principles involved aredirectly on point.


IN RE:ORDER AMENDING

RULES OF THE SUPREME COURT (SCR)

2013-04

The following rule amendment shall become effective upon entry of this order.

SCR 4.300 Kentucky Code of Judicial Conduct

CANON 5: A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY

The amendments to subsections (1) and (2) and the Commentary of section (A) and subsection (2) of section (B) of CANON 5of SCR 4.300 shall read:

A. Political Conduct in General.

(1) Except as permitted by law, a judge or a candidate for election to judicial office shall not:

(a) campaign as a member of a political organization;

(b) act as a leader or hold any office in a political organization;

(c) make speeches for or against a political organization or candidate or publicly endorse or oppose a candidate for public office;

(d) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, except as author-ized in subsection A(2);

CommentaryA judge or a candidate for election to judicial office retains the right to participate in the political process as a voter. A

judge or a candidate for election to judicial office may publicly affiliate with a political organization but may not campaign asa member of a political organization.

Where false information concerning a judicial candidate is made public, a judge or candidate having knowledge of thefacts is not prohibited by Section 5A(1) from making the facts public.

Section 5A(1) does not prohibit a judge or candidate from privately expressing his or her views on judicial candidates orother candidates for public office.

(2) A judge or a candidate for election to judicial office may purchase tickets to political gatherings for the judge or candi-date and one guest, may attend political gatherings and may speak to such gatherings on the judge’s or candidate’s own behalf.

B. Campaign Conduct.

(2) A judge or a candidate for judicial office shall not solicit campaign funds in person. A judge or a candidate for judicialoffice may establish committees of responsible persons to secure and manage the expenditure of funds for the campaign and toobtain public statements of support for the candidacy. A candidate’s committees may solicit funds for the campaign no earlierthan 180 days before a primary election. A candidate’s committees may not solicit funds after a general election (See KRS121.150). A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or amember of the candidate’s family

Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur.

ENTERED this the 18 th day of February, 2013.

KENTUCKY BAR NEWS


Barry Scheck Delivers Special Lectureto Chase Students and Faculty

Barry Scheck, professor of law andco-director of the Innocence Project

at Benjamin N. Cardozo School of Lawat Yeshiva University, delivered a spe-cial lecture to Chase students andfaculty on January 15.

Professor Scheck is known for hislandmark litigation setting standards forforensic applications of DNA technology.His work in this area has shaped thecourse of case law across the country andled to an influential study by theNational Academy of Sciences on foren-sic DNA testing, as well as importantstate and federal legislation. In additionto the work he has done throughCardozo’s Innocence Project, which hasrepresented dozens of men who wereexonerated through post-conviction DNAtesting, Scheck has represented suchnotable clients as Hedda Nussbaum, O. J.Simpson, Louise Woodward, and AbnerLouima. Prior to joining the Cardozofaculty, he was a staff attorney at theLegal Aid Society of New York.

Chase alumnus Martin Pinales ’68facilitated Professor Scheck’s visit toChase.

Randy Barnett Presents the Career ofChief Justice Salmon P. Chase

Randy Barnett, Carmack WaterhouseProfessor of Legal Theory at the

Georgetown University Law Center,delivered his presentation, “From Anti-Slavery Lawyer to Chief Justice: TheRemarkable Career of Salmon P.Chase,” to Chase students and facultyon February 6.

Professor Barnett is one of the mostrenowned and widely cited constitu-tional law scholars in the nation. Amonghis many accomplishments, he is theauthor of Restoring the LostConstitution: The Presumption ofLiberty; he briefed and argued Gonzalezv. Raich in the U.S. Supreme Court forthe respondent; and he was the chiefarchitect of the argument that the indi-

vidual mandate provision of theAffordable Care Act violates theCommerce Clause.

Salmon P. Chase, the College ofLaw’s namesake, began his legal careeras a young lawyer defending runawayslaves in Cincinnati. He went on toserve as U.S. Senator from Ohio,Governor of Ohio, a candidate for theRepublican presidential nomination,Secretary of the Treasury underPresident Abraham Lincoln, and ChiefJustice of the United States.

Professor Nicole Huberfeld Quoted inNew York Times Article

Professor Nicole Huberfeld, Gallion& Baker Professor of Law at the

University of Kentucky College of Lawand Bioethics Associate at theUniversity of Kentucky College ofMedicine, was quoted in a Jan. 29, 2013,New York Times article, “To Open Eyes,W-2s List Cost of Providing a HealthPlan,” about the surprise many findwhen they realize the total cost of theiremployer-sponsored health coverage.

The 2010 health care law requiresdisclosure of these costs, starting this

year. “Most people who get healthinsurance from their employers have noidea how much it costs,” ProfessorHuberfeld says in the article. “ManyAmericans believe this is somethingthey get free. But employers pay lowerwages because they provide insurance.”

Professor Huberfeld teaches struc-tural constitutional law and a variety ofhealthcare law classes as well as lec-tures at the College of Public Healthand the College of Medicine. Her schol-arship focuses on the cross-section ofconstitutional law and federal healthcareprograms with a particular interest infederalism and Spending Clausejurisprudence. Her article entitledFederalizing Medicaid, 14 U. PA. J.CONST. L. 431 (2011), was cited bySupreme Court Justice Ruth BaderGinsburg’s opinion in NFIB v. Sebelius.Huberfeld has recently completed workon Plunging into Endless Difficulties:Medicaid and Coercion in theHealthcare Cases (with Weeks Leonardand Outterson), which is forthcoming inBOSTON UNIVERSITY LAW REVIEW.

Judicial Conversation SeriesAnnounced

The University of Kentucky College ofLaw is pleased to announce the 2013

Judicial Conversation Series: a series ofthoughtful and engaging interactions

University ofKentuckyCollege of Law

Salmon P. ChaseCollege of Law

Bar News_March.qxd 3/14/13 11:54 PM Page 44

between members of Kentucky’s highestcourt and students preparing for a careerin law. Each forum will take place in theCollege of Law Courtroom, 620 SouthLimestone. All Judicial ConversationSeries forums are open to the public.Check back on www.law.uky.edu/speak-ers for updates and a full list of upcoming2013 speakers.

February 6: Justice Bill CunninghamFebruary 27: Justice Daniel J.VentersMarch 20: Justice LisabethAbramsonApril 3: Deputy Chief Justice MaryC. NobleDate TBA: Justice Will T. ScottDate TBA: Chief Justice John D.Minton, Jr.

By Susan Duncan, Interim Dean

In this issue commemorating theGolden Anniversary of Gideon v.Wainwright, the U.S. Supreme Courtcase extending to state court criminaldefendants the right to legal counselunder the Sixth and FourteenthAmendments, it seems appropriate toshowcase Brandeis School of Law’sCriminal Law curriculum, some of theprofessors that teach and write in thisarea, and pay tribute to two of ouralumni who recently retired from thecriminal justice field.

Criminal Law Course Work

New this year, Brandeis first-yearlaw students took criminal law in

the fall semester and property in thespring. This change was one of a num-ber of curricular innovationsimplemented in 2012-2013. First-yearlaw students experienced an updatedcurriculum which reduced their credithours from 31 to 29 hours by reducingproperty to a four hour one-semestercourse. This change allows students tomore quickly (or effectively) adjust tothe challenges of law school and thedemands of the legal profession. Post

first-year, upper level, criminal proce-dure courses continue to draw a hugestudent enrollment. Chances are manyof you had Professor Les Abramson for

one of thesecourses. ProfessorAbramson hasauthored severalcasebooks andstudy aids on civilprocedure, criminalprocedure and pro-fessional

responsibility. For practicing lawyers inKentucky, he has written books aboutcriminal procedure and criminal law.He has received University ofLouisville awards for his teaching,

research and serv-ice. If yougraduated before2007, you may notknow ProfessorLuke Milligan whois another superstarin this area.Professor Milligan

was a criminal defense lawyer at theWilliams & Connolly firm inWashington, D.C., before joining thefaculty. He teaches criminal law andcriminal procedure. His research drawson constitutional theory, political the-ory, and political science to describehow judges make rules affecting thecriminal justice system. His ongoingprojects examine the forces constrain-ing the judiciary’s interpretation of the

Fourth Amendment.Professor RussWeaver also pub-lishes extensivelyin the areas ofcriminal law andcriminal procedure.He has casebooksand study aids in

both areas, and he has published a num-ber of articles. In addition, he organizesthe Criminal Procedure DiscussionForum which brings together prominentscholars from around the world to dis-cuss matters of common interest.Finally, Professors Cedric Powell andSam Marcosson also teach in this areaand remain favorites of our students.

Extra-curricular Criminal LawOpportunities

Brandeis students are exposed tomuch more than the criminal black

letter law as they have the opportunity toenroll in either a criminal justice extern-ship or the Kentucky Innocence project.Students enrolling in the criminal justiceexternship may be assigned to one of thefollowing agencies: Louisville-JeffersonCounty Public Defender, JeffersonCounty Attorney, or CommonwealthAttorney. Students are assigned to casescoming into those offices and prepareand try them under the supervision ofboth an attorney in the agency and amember of the Brandeis School of Lawfaculty. These externships are very pop-ular and often result in permanent jobplacements for our students.

The Kentucky Innocence project(KIP), part of the Kentucky Departmentof Public Advocacy, offers students theopportunity to work with incarceratedmen and women on their legitimateclaims of innocence. KIP teaches studentsthe fundamental components for effectivecriminal defense investigative practice.The KIP student has the opportunity toemploy newly-acquired investigativeskills and knowledge offered in the class-room setting to cases containingexculpatory evidence, possibly leading toattempts to overturn wrongful convic-tions. Students participating in thisexternship develop essential lawyeringskills including investigating, counseling,record keeping, and interviewing wit-nesses and experts. Students work underthe supervision of an attorney with theKentucky Department of PublicAdvocacy. The externship requires a two-semester commitment.

As in the past, Brandeis will send ateam to compete in the Annual HerbertJ. Wechsler National Criminal LawMoot Court Competition. This year the15th annual competition will be held inBuffalo, New York on March 23. Namedafter the drafter of the Model PenalCode, the Wechsler Competition is theonly National Moot Court Competitionin the United States to focus on topics insubstantive criminal law. Problemsaddress the constitutionality and inter-pretation of federal and state criminal


KENTUCKY BAR NEWS

Les Abramson

Luke Milligan

Russ Weaver

Bar News_March.qxd 3/15/13 9:37 AM Page 45

statutes as well as general issues of fed-eral and state criminal law. This year,Brandeis team members Cassie Kennedyand Emily Peeler are being coached byAnnie O’Connell and Ted Shouse. Wehope they will perform well and join ourArbitration and Negotiation Teams whoadvanced to the Nationals in theirrespective competitions.

Brandeis Alums Some of the Best inthe Field

All of these opportunities help tomake Brandeis graduates some of

the best prosecutors and criminaldefense attorneys in the state. Two long-time members of the criminal bar areBrandeis graduates who recently retiredfrom the Jefferson CountyCommonwealth Attorney’s Office. After16 years in their current posts and manymore years in the field, R. DavidStengel L76, Commonwealth’s Attorneyfor Louisville and Jefferson County, andHarry J. Rothgerber L74, the FirstAssistant Commonwealth’s Attorneyretired. They served during the largestincrease in the number of criminalindictments in the history of this juris-diction, and countered this crime trendby implementing a significant increasein prosecutors (currently 48) and sup-port staff, funded by both the State andLouisville Metro governments. As thelargest and most active felony prosecu-tor’s office in the Commonwealth,Stengel’s office handled more than3,900 new indictments that were issuedby the Jefferson County Grand Jury in2012. That is an amazing number whencompared to the rest of the state.

The initiatives begun by Stengel andRothgerber made the Commonwealth

Attorney’s Office a leader both in thestate and the nation. Some of the suc-cessful initiatives under their leadershipinclude:

• a Special Prosecutions Unit, in col-laboration with the JeffersonCounty Attorney’s Office, whichtargeted serious and violent juve-nile offenders dramaticallydecreasing violent juvenileoffenses;

• an Elder Abuse Unit and Liaison,the first such felony prosecutorialinitiative in Louisville;

• one of the premier case trackingand management programs in thecountry;

• a Detective Unit which took overall extradition duties from thepolice in 1998 at a huge cost sav-ings to taxpayers; and

• a Restitution Coordinator whoeventually processed orders formillions of dollars on behalf ofvictims.

This administration was not afraid totake on controversial issues including:

• prosecuting more accused lawyers,police officers, priests and publicservants than the previous sixadministrations combined;

• raising national awareness of heat-related football training issues as aresult of the homicide prosecution inComm. v. Stinson, the footballcoach who was ultimately acquitted;

• cooperating with the InnocenceProject to quickly vacate convic-tions of men who likely werewrongfully convicted;

• and fighting for fair play for con-victed felons who paid their debt tosociety, consistently testifying forthe restoration of their civil rightsand for an easier expungementprocess.

Stengel and Rothgerber were com-mitted to helping the staff grow anddevelop professionally. They elevatedmany women to leadership roles in theoffice and all assistants were encour-aged to excel. This ultimately led manyof the assistants to becoming judges,elected officials, federal prosecutors,and key players in the AttorneyGeneral’s Office, Auditor’s Office andother state agencies and departments.

Brandeis Law School is very proudof both of these graduates. They are twoexamples of many fine men and womenwe have produced who work tirelesslyin the criminal justice field.

KENTUCKY BAR NEWS


R. David Stengel and Harry J. Rothgerber

Before You Move...Over 17,000 attorneys are licensed to practice in the state of Kentucky. It is vitally importantthat you keep the Kentucky Bar Association (KBA) informed of your correct mailing address.Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which heor she may be communicated, as well as a physical address if your mailing address is aPost Office address. If you move, you must notify the Executive Director of the KBA within30 days. All roster changes must be in writing and must include your 5-digit KBA memberidentification number. There are several ways to do this for your convenience.

VISIT our website at www.kybar.org to makeONLINE changes or to print an AddressChange/Update Form

MAIL the Address Change/Update Formobtained from our website or other writtennotification to:

Kentucky Bar AssociationExecutive Director514 W. Main St.Frankfort, KY 40601-1812

EMAIL the Executive Director via theMembership Department [email protected]

FAX the Address Change/Update Formobtained from our website or other writtennotification to:Executive Director/MembershipDepartment (502) 564-3225

* Announcements sent to the Bench & Bar’sWho, What, When & Where column or commu-nication with other departments other than theExecutive Director do not comply with the ruleand do not constitute a formal roster changewith the KBA.



KENTUCKY BAR NEWSSUMMARY OF MINUTES

KBA BOARD OF GOVERNORSMEETING

NOVEMBER 16-17, 2012

The Board of Governors met on Fridayand Saturday, Nov. 16-17, 2012.Officers and Bar Governors in atten-dance were, President D. Myers;President-Elect T. Rouse; Vice PresidentB. Johnson; and Immediate PastPresident M. Keane and Young LawyersDivision Chair J. Wright. BarGovernors 1st District – J. Freed, S.Jaggers; Bar Governors 2nd District –T. Kerrick, R. Sullivan; 3rd District – R.Hay, G. Wilson; 4th District – D.Ballantine; 5th District – A. Britton, W.Garmer; 6th District – D. Kramer, S.Smith; and 7th District – M. McGuire,B. Rowe. Bar Governors absent were:D. Farnsley.

In Executive Session, the Board consid-ered six (6) discipline cases, seven (7)discipline default cases and one (1)restoration case. Malcolm Bryant ofOwensboro, Brenda Hart of Louisville,Roger Rolfes of Florence and Dr.Robert Strode, non-lawyer membersserving on the Board pursuant to SCR3.375, participated in the deliberations.

In Regular Session, the Board ofGovernors conducted the followingbusiness:

• Heard a status report from 2013-2014Budget & Finance Committee,Kentucky Lawyer Assistance Program(KYLAP) and Rules Committee.

• Approved the adoption of KBA U-64as a formal unauthorized practice oflaw opinion regarding “administrativehearings.”

• President-Elect Thomas Rousereported that the Board of GovernorsSummer Meeting would be held onJuly 25-28, 2013 at General ButlerState Park in Carrollton, Ky.

• Approved the appointments of 7th

Supreme Court District Bar GovernorBobby Rowe of Prestonsburg, as theBoard of Governors representative andDr. Brian Greenlee of Lexington asthe non-lawyer citizen member to the

KYLAP Commission for four-yearterms ending on June 30, 2016. Inaddition, approved the appointment ofCatherine Fuller of Paducah from the1st Supreme Court District to fill areminder of a term ending on June 30,2015.

• Young Lawyers Division Chair JackieSue Wright addressed the followingYLD activities and projects: DiversityCommittee, CommunicationsCommittee, Membership Committee,Law Student Outreach Committee,Awards, ABA GP Solo Division andYoung Lawyers May 2014 SpringConference.

• Approved the following opinions asformal ethics opinions E-434 relatingto a lawyer’s use of social networksites to benefit a client and E-435regarding plea agreements includingwaiver of ineffective assistance ofcounsel.

• Attorneys’ Advertising CommissionChair David Latherow presented theCommission’s annual report.

• Clients’ Security Fund Chair GaryCrabtree presented the annual reportof the Fund.

• Approved the re-appointment of JohnG. Prather, Jr., of Somerset to theAudit Committee for a second three-year term expiring Dec. 31, 2015.

• Approved the appointment of WilliamM. Johnson of Frankfort as a Trusteeon the Bar Center Board of Trusteesfor another three-year term expiringon Dec. 31, 2015.

• Approved the appointment of JohnGrant of Lexington to the Joint LocalFederal Rules Commission for theEastern District of Kentucky for afour-year term commencing on Jan. 1,2013 and expiring on Dec. 31, 2016.

• Approved the lists of CLE non-com-pliant and unpaid dues attorneys forShow Cause Notices to be sent.

• Approved the appointment of JenniferBarber of Louisville to the KentuckyBar Foundation for the FourthSupreme Court District to fill theunexpired term of Jeff McKenzieexpiring on June 30, 2014.

• Approved the authorization of a KBALegislative Outreach event, tentativelyscheduled for Feb. 21, 2013, for a

KBA day at that the Capitol to empha-size to the General Assembly theimportance of funding matters for theCourt of Justice. Also authorized theappointment of Vice President WilliamE. Johnson of Frankfort to serve aschair of the Legislative OutreachCommittee and to appoint a committeeto coordinate the event.

• Approved to waive registration feesfor the judges for the KBA 2013Annual Convention in Louisville.

• Approved to refer the matter of therequest from the National Associationof Criminal Defense Lawyers withregard to a proposed Senate Bill creat-ing a procedure to have early reviewof questionable evidentiary issues tothe KBA Legislative Committee forfurther review.

• Executive Director John D. Meyersadvised that there were five uncon-tested seats for the Board ofGovernors and there were two con-tested elections as follows: FourthSupreme Court District Amy D.Cubbage of Louisville and AnnOldfather of Louisville and in theSixth Supreme Court District T.Lawrence Hicks of Edgewood and J.Stephen Smith of Ft. Mitchell. Ballotsfor these two elections will be mailedDec. 15, 2012 and returned by Jan. 15,2013. Meyers also reported that therewas no opposition for the Office ofVice President and President-Elect.Douglass Farnsley of Louisville willtake office as Vice President andWilliam E. Johnson of Frankfort willtake office of President-Elect on July1, 2013 for one-year term.

• Approved the 2013 Holiday Schedulefor the Bar Center staff.

To KBA MembersDo you have a matter to discuss

with the KBA’s Board of Governors?Board meetings are scheduled on

May 17-18, 2013June 18, 2013

To schedule a time on the Board’s agendaat one of these meetings, please contact

John Meyers or Melissa Blackwellat (502) 564-3795.


April 19, 2013 May 3, 2013Advanced Curriculum Jessamine County Courthouse McCracken County Courthouse 2nd Floor Courtroom301 S. Sixth Street Advanced CurriculumPaducah, KY 101 North Main Street

Nicholasville, KY

The Administrative Office of the Courts is pleased to oversee the LegalTraining for Dependency, Neglect and Abuse Cases (formerly the Guardian adLitem Training Program). Since 1999, the AOC has been responsible for prepar-ing attorneys to provide legal representation to dependent, neglected and abusedchildren throughout Kentucky. The goal of the program is to produce highlyqualified guardians ad litem by offering training sessions, providing educationalmaterials and serving as a comprehensive resource.

These programs provide an overview of Kentucky statutory and case lawwhile also meeting the federal requirements set forth in CAPTA (Child AbusePrevention and Treatment Act) and ASFA (Adoption and Safe Families Act).

CLE Credits. The advanced program offers 5.75 credit hours of continuinglegal education, which includes 1 credit hour of ethics.

CEU Credits. The AOC has applied for continuing education units from theKentucky Board of Social Work.

There is a $25.00 registration fee for attorneys seeking CLE Credits.

FOR MORE INFORMATIONAttn: Legal Training

Department of Family and Juvenile ServicesAdministrative Office of the Courts

100 Millcreek ParkFrankfort, Ky. 40601 Phone 800-928-2350, x50510 • Fax 502-573-1412

[email protected]

KENTUCKY BAR NEWS


Alexander HamiltonHistorical SocietyWill Hold AnnualSymposium at U of L on April 13

The Alexander Hamilton HistoricalSociety of Kentucky (AHHS) willhold its 2013 Symposium on Saturday,April 13. It runs 10:00 a.m.-12:30 p.m.at the University of LouisvilleMcConnell Center’s Chao Auditorium,on the lower level of Ekstrom Libraryon Belknap Campus.

This year’s theme is “Federalism:National Power vs. State Power.”The symposium chair and moderator isDr. Charles Ziegler, professor ofPolitical Science, University Scholarand Grawemeyer Awards Director,University of Louisville.

The symposium features the fol-lowing presentations: “The Foundersand Federalism,” by Dr. AaronHoffman, assistant professor ofPolitical Science, BellarmineUniversity; “The Constitution andFederalism,” by Mark Webster, attor-ney at law; “The Supreme Court andFederalism,” by Jane Lollis, attorneyat law; and “The Politics of FiscalFederalism,” by Dr. Jasmine Farrier,assistant professor of PoliticalScience, University of Louisville.

The symposium is free and open tothe public. A question and answersession follows the presentations.Free parking is available on campus;paid parking is available in the SpeedMuseum parking garage and otherareas.

For additional information, contactRick Kincaid at [email protected] orcall (502) 897-0585. Regular AHHSmeetings are held on the thirdSaturday of each month at 10:30 a.m.at the St. Matthews-Eline Library,3940 Grandview Avenue, in St.Matthews City Hall. They are alwaysfree and open to the public. LynnOlympia serves as president and canbe reached at [email protected] (502) 709-5070.

KYLAP TO PARTNER WITH LMICK FOR ETHICS PROGRAM The Kentucky Lawyers Assistance Program (KYLAP) is proud to announce a

partnership with Lawyers Mutual Insurance Company of Kentucky (LMICK) toprovide 3.5 hours of free ethics (pending CLE approval) at two locations thisspring. A working lunch will be provided. The programs will be from 10:00 a.m.to 2:00 p.m. The scheduled programs are:

Paducah: Thursday, May 30, at The Carson Center, 100 Kentucky Avenue;Pikeville: Friday, May 31, at the Eastern Kentucky Exposition Center, 126

Main Street. Please RSVP to Nancy Meyers at [email protected] or call 502-568-6100

with your name, firm, event date, and your choice of vegetarian or regular boxedlunch.


KENTUCKY BAR NEWS


Citizen Foster Care Review Boardsthroughout Kentucky are seeking

volunteers to make a difference in thelives of local children in foster care.Volunteers are needed to review casesof children placed in foster carebecause of dependency, neglect andabuse to ensure these children areplaced in safe, permanent homes asquickly as possible. Volunteers are notrequired to reside in the county where aboard meets.

The counties most in need of volun-teers are Anderson, Bath, Bell, Bracken,Bullitt, Calloway, Campbell, Clay,Elliott, Estill, Fayette, Franklin,Garrard, Hardin, Henry, Jefferson,Johnson, Kenton, Knox, Lee, Lincoln,Mason, McCreary, Morgan, Nelson,Oldham, Owen, Owsley, Pike, Powell,Shelby, Spencer, Trimble, Warren andWoodford counties.

The Kentucky General Assembly cre-ated the Citizen Foster Care ReviewBoard, or CFCRB, in 1982 as a way todecrease the time children spend in fos-ter care. CFCRB volunteers reviewCabinet for Health and Family Servicesfiles on children placed in out-of-homecare and work with the cabinet andcourts on behalf of the state’s foster chil-dren. The volunteer reviewers helpensure that children receive the neces-sary services while in foster care and areultimately placed in permanent homes.

All volunteers must complete a six-hour initial training session and consentto a criminal record and Central Registrycheck. A recommendation is then madeto the chief judge of the District Court orFamily Court for appointment.

To view meeting schedules of theboards in need of volunteers, visitwww.courts.ky.net and click on the

CFCRB headline when it appears in thephoto box at the top of the page. To vol-unteer or get more information, contactthe Department of Family and JuvenileServices at the Administrative Office ofthe Courts in Frankfort at 800-928-2350or [email protected].

Citizen Foster Care Review BoardApproximately 800 volunteers acrossthe state serve as members of the AOC’sKentucky Citizen Foster Care ReviewBoard. The boards operate within theAOC’s Division of DependentChildren’s Services, a division of theDepartment of Family and JuvenileServices. As the operations arm for thestate court system, the AOC supportsthe activities of nearly 3,300 court sys-tem employees and 403 elected justices,judges and circuit court clerks and exe-cutes the Judicial Branch budget.

Volunteers needed to assist children in foster care in 35 Kentucky countiesCitizen Foster Care Review Boards review cases, make recommendations on behalf of children

John C. AnggelisLexington KY

1/9/2013

Andrea Nicole BostromVersailles KY12/22/2012

John T. Fowler IIILouisville KY12/18/2012

Mark Anthony GabisOwensboro KY11/12/2012

Jefferson V. Layson Jr.Paris KY

12/24/2012

Nathan S. LordLouisville KY

1/1/2013

John Joseph McCarthyLouisville KY

9/9/2011

Escum Lionel Moore Jr.Lexington KY11/26/2012

Joseph C. O’BryanLouisville KY12/14/2012

Charles E. Palmer Jr.Lexington KY

1/1/2013

Don T. RatcliffeLouisville KY12/4/2012

Edmond Flynn Severs IILexington KY3/12/2012

Robert E. VickGreenville KY11/15/2012

Franklin Everett WarrenLouisville KY

3/7/2012

Lee Ann WebbLouisville KY1/23/2013

II nn MMee mmoo rr ii aa mm


KENTUCKY BAR FOUNDATION

PATRONS Commitment to Strengthening Our Justice System and the Legal Profession Which Upholds its Standards

Sam Aguiar Louisville Irv Maze LouisvilleDavid A. Black Louisville Eugene L. Mosley Louisville

Gerry L. Calvert Lexington Joseph B. Murphy Lexington Dorothy J. Chambers Louisville James I. Murray Lexington Wynter Collins Louisville Oeltgen &D’Ambruoso, PLLC Lexington Scott A. Crosbie Lexington Dan L. Owens LouisvilleMichael Davidson Lexington W. R. Patterson, Jr. LouisvilleThomas A. Donan Bardstown Timothy Philpot Lexington Susan Duncan Louisville Mary Lisa Prendergast Owensboro Cecil F. Dunn Lexington R. Craig Reinhardt Lexington

Kelly Mark Easton Elizabethtown Daniel J. Risch LouisvilleSamantha Evans Hopkinsville Kendall Robinson BoonevilleFred Faulkner Campbellsville Mark A. Robinson LouisvilleEdward Faye Bowling Green Thomas L. Rouse ErlangerW. Roger Fry Cincinnati Steven C. Schletker Covington Spencer E. Harper, Jr. Louisville James S. Secrest, Sr. ScottsvilleSamuel G. Hayward Louisville Erwin A. Sherman LouisvilleBuckner Hinkle, Jr. Lexington Jennifer S. Smart Lexington

Zachary A. Horn Inez Mark E. Smith Louisville Craig Housman Paducah John W. Stevenson Owensboro Sheldon N. Isaacs Louisville John Frith Stewart LouisvilleSteven C. Jackson Paducah Gerald R. Toner Louisville Hobart C. Johnson Pikeville Gary M. Weiss LouisvilleMartin W. Johnson Benton Lee T. White HopkinsvilleKentucky Bank Paris Scott C. Wilhoit LouisvilleRobert A. Kohn Louisville Helene Gordon Williams LouisvilleNathan T. Kolb Bowling Green J. H. Wimsatt Louisville

Robert E. Maclin III Lexington Thomas B. Wine LouisvilleThomas C. Marks Lexington The Zoppoth Law Firm LouisvilleKip C. Mathis Benton

--------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Your contribution makes it possible for the Kentucky Bar Foundation to further the public’s understanding of the

judicial system and the legal profession through programs and philanthropic partnerships that help those in need.

I want to be a Patron of the Kentucky Bar Foundation!

� Please accept my pledge to contribute $100 annually to the Kentucky Bar Foundation for the next five years,

which creates a total commitment of $500. My first installment of $100 is enclosed.


which creates a total commitment of $750. My first installment of $150 is enclosed.


which creates a total commitment of $1,000. My first installment of $200 is enclosed.

Contributions to the Kentucky Bar Foundation are tax-deductible to the extent allowed by law.

Print Name

Address

City State Zip

Phone No. Fax No.

E-mail

Signature

The Kentucky Bar Foundation, Inc.

514 West Main Street

Frankfort, KY 40601-1812

50 Bench & Bar January 2013


Looking for UpcomingKBA Accredited CLE Events?

Look no further...Check out www.kybar.org/580

This easy to use search engine contains up to date information on CLE events that have been accredited by the Kentucky Bar Association Continuing Legal Education Commission.

Users can search by program date, name or sponsor for information about future and past events. Program listings include sponsor contact information, approved CLE and ethics credits, and KBA activity codes for �lling out the certi�cate of attendance (Form #3).

Programs are approved and added in the order in which they are received. It may take up to two weeks for processing of accreditation applications. If an upcoming or past event is not listed in the database, check with the program sponsor regarding the status of the accreditation application.


CLE_March.qxd 3/13/13 8:05 PM Page 51

Name Badge Lanyard Sponsor

Exhibitor • Program Flash Drive Sponsor

Exhibitor

Exhibitor

ExhibitorExhibitor • YLD Reception Sponsor

Program Pen Sponsor

Exhibitor

Exhibitor • YLD Reception SponsorProgram Sponsor

Exhibitor

We would like to thank those individuals and organizations whose contribution of time, expertise and funding helped make the February 2013 New Lawyer Program a great success.

Moderators, Speakers and Contributing AuthorsJudge Julia H. Adams

Je�rey P. AlfordRoula AllouchRuth H. BaxterJohn N. Billings

John T. BradyAnita M. Britton

Kelli E. BrownHelen G. Bukulmez

John F. BurnetteJudge Sara W. Combs

Amy D. CubbageMary E. Cutter

Kirsten R. DanielChrissy M. Dunn

John M. DunnLinda S. Ewald

Professor William H. FortuneCarl N. Frazier

Allison L. Grogan

P. Branden GrossAsa P. Gullett IIIJane C. Higgins

Stacey A. HoehleTodd S. Horstmeyer

Yvette HouriganGene Lynn Humphreys

Stephen J. IsaacsLaura E. Kight

David F. LatherowJames R. Lesousky

Don H. MajorJoshua J. Markham

Mark S. MedlinJohn D. Meyers

Christie A. MooreLisa H. MorganKevin J. Moser

Daniel P. MurphyW. Douglas Myers

Jessica L. NewmanMichael E. Nitardy

Kristen K. OrrNeva-Marie Polley

Stephanie R. RennerJonathan S. Ricketts

Jesse L. RobbinsJoe C. Savage

Craig M. SchneiderTasha K. ScottSusan C. Sears

Richard A. SetterbergBarry N. Sullivan

Palmer G. Vance IIJay R. Vaughn

Michael Odell WalkerJudge Je�rey M. Walson

P. Kimberly WatsonLouis P. Winner

Jacqueline S. Wright

Sponsors and Exhibitors

NKBANKBANKBANKBA

B oone

Campbell

Carroll

GallatinGrant

Ken

ton

Ow

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Pendleton



KENTUCKY LAW UPDATE

Advancing the Profession Through Education

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Kentucky Bar Association2013 New Lawyer Program

Kentucky Bar Association Annual Convention

June 19-20, 2013Galt House Hotel

Louisville, KY

in conjunction with:

“Within twelve (12) months following the date of admission as set forth on the certi�cate of admission, each person admitted to membership to the Kentucky Bar Association shall complete the New Lawyer Program.”

Visit www.kybar.org/195 for more information

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September 10-11 - Russell (Ashland)Bellefonte Pavilion

September 26-27 - LexingtonLexington Convention Center

October 3-4 - OwensboroRiverPark Center

October 9-10 - LondonLondon Community Center

October 24-25 - LouisvilleKY International Convention Center

October 30-31 - GilbertsvilleKY Dam Village State Resort Park

November 6-7 - Bowling GreenHoliday Inn & Sloan Convention Center

November 21-22 - PrestonsburgJenny Wiley State Resort Park

December 5-6 - CovingtonNorthern Kentucky Convention Center

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Congratulations

2012 CLE Award RecipientsCongratulations to the following members who have received the 2012 CLE Award by obtaining a minimum of 62.5 CLE credit hours within a three-year period, in accordance with SCR 3.680. The CLE Commission applauds these members for their efforts to improve the legal profession through continuing legal education.

Sharif Ahmed Abdrabbo Damaris S. Abeles Stuart L. Adams, Jr.Robert Cameron Adams Amelia Martin Adams William H. Adams IIRussell Whitt Adkins Londa Jeanine Adkins Bryce Aaron Adkins Ryan James Albrecht Martha Lewis Alexander Phillip Altimari Michael Wayne Alvey Bethany Elaine Ammons John E. Anderson Jeanne Deborah Anderson Kelly Renae Anderson Christopher J. Arlinghaus Tracy Sullivan Arnold Michael F. Arnold Imran Waqas Aslam Tonya Jenkins Austin Elizabeth Bancroft Jennifer Yue Barber Stephen Barnes Abigail Barnes James W. Barnett Donald S. Battcher Madeleine T. Baugh Courtney Tigue Baxter Brian Keith Bayes Nathan Thomas Beard Jennifer S. Begley Jon Blakely Beliles Lindsey Gary Bell John R. Benz Stephen D. Berger Mildred D. Betty Janet Louise Blachowski Heather Lynn W. Blackburn Paul Matthew Blanton Karen Greene Blondell Cecilia D. Blye Cathy L. Bond Deidre M. Bowen Kyle Dane Bowles, Jr.Matthew W.D. Bowman Tiffany J. Bowman Richard Mason Boydston Douglas Allen Bozell Peter J.W. Brackney Thomas R. Bradley Natalie Rae Bradley Lloyd D. Bright Bruce Alan Brightwell Thomas C. Brite

Michael V. Brodarick Jamie Scott Brodsky Bonnie M. Brown G. Denise Brown Shelley Lee Brown Sean Edward Brown Rachel Lynn Brown Elizabeth K. Broyles Elizabeth A. Bruce Katherine R. Bruenderman Renda Jill Bruner David Warren Bufford Michael Joseph Bufkin Helen Gulgun Bukulmez Linda Dixon Bullock Charla McNally Burchett Kathryn Burke Robert Anthony Burke David William Burleigh Casey Patrick Burns Erin Elizabeth Burns Ralph Charles Buss Gerry L. Calvert IIStephanie Lynn Calvert Thomas Lynch Canary, Jr.Sarah Schmitt Carey William Daniel Carman Michael Gerard Carr Raymond Eric Carr Christopher D. Carrier Thomas E. Carroll Nicholas A. Carter Christopher R. Carville Keith M. Carwell Scott C. Casey Christopher D. Cathey Rocco J. Celebrezze Frank David Chaiken Laura Lee Chastain Brian William Chellgren Ashley Lauren Chilton Matthew J. Choate Karen Gail ChrismanAshlea Elaine Christiansen Lee C.Y. Clagett Galen L. Clark Lauren Sander Clark Bradley Dale Clark Susan Stokley Clary Thomas Peyton Claycomb Richard Simon Cleary Joseph A. Cleves, Jr.David Dwight Cobb James Timothy Cocanougher Ross Daniel Cohen Rachel G. Cohen

Jessica Leigh Cole Timothy Ray Coleman Christopher Colson Ralph Combs Kimberly H. Compton Eric Niles Conley Walter A. Connolly IIIKenneth Luke Connor Vance Wayne Cook Richard E. Cooper Pamela M. Corbin Suzanne Doreen Cordery Erin Michelle Corken Brian C. Corneilson Paul Brian Couch Clare Feler Cox Paul Wilburn Cox, Jr.Samuel Joseph Cox Tera Gertrude Cozart Rhonda R. Crawford Douglas F. Crickmer IIIWilliam P. Croley Whitney Asher Crowe Russell L. Crusott Adam Clay Cullman James Patrick Dady Debra H. Dawahare Richard Frank Dawahare Alexander P. DeGrand Robert G. DeFusco Karen D.B. Dean Kurt Richard Denton Robert Sean Deskins Robert W. Dibert Denise A. Dickerson James L. Dickinson Temple DickinsonScott William Dolson Sheila Mary Donovan Deaidra Lynn Douglas Jared Lee Downs Timothy Wayne Dunn, Jr.Susan Speare Durant Walter Blaine Early IIICher Reese Eaves Eric G. Eckes Scott Taylor Ecton Terry Dennis Edwards Jean Clair Edwards Robert Herman Eichenberger Richard David Elder Thomas Paul Erven Angela C. Evans Rita L. Fadell Rheanne Dodson Falkner Bernard Martin Faller

John M. Famularo Katrina Z. Farley Michael Joseph Farrell Bruce A. Favret Angela Susanne Fetcher Jeffrey W. Fichner Lynn Katrin Fieldhouse Timothy Firkins Paul Alan Fiser Katherine Jane Fitzpatrick Vanita Sharma Fleckinger Bradley Allen Fletcher Phyllis E. Florman Brent William Flowers Charles L. Paul Flynn James Gordon Fogle Shawn Fogle Christine Jane FosterJill Maria Fraley Larry B. Franklin Steven Joseph Franzen Nicole K. Freel Baldridge Robert Glenn Friedman Melissa Capito FuchsJerrod B. Fussnecker Christopher Gadansky Allen K. Gailor Jodie Drees Ganote Larry D. Garmon Terry Lane Geoghegan William James George Roya Ahur Ghazi D. Randall Gibson Mary Elizabeth Going Maria T. Goldcamp-Hodges Nathan Wayne Goodrich Laura Kelly R. Goodridge Thomas Graham Goodwin Felix John Gora Virginia Baker Gorley Erritt Hill Griggs David P. Grise Jeannette D. Gute Anna Roberta Gwinn Timothy Joseph Hagerty Janean E. Hall Robert Luke Hall Robert L. Hallenberg Mark Edward Hammond Amy Irene Hannah Jennifer M. Hansen Richard Kelly Harris Kerry Brent Harvey W. Patrick Hauser Linda H. Havel Michael Wesley Hawkins

Michael Lee Hawkins Michael deLeon Hawthorne Jeremy Andrew Hayden Paul Cleon Hayes Whitney Lauren Hayse Samuel G. Hayward Jonathan R. Heck Gregg Garth Heckley Timothy Seth Hendrix Joseph Todd Henning Alex P. Herrington, Jr.Sharon Kay Hilborn Mary Elizabeth Hils Mary Gabrielle Hils Buckner Hinkle, Jr.Samuel D. Hinkle IVWillis W. Hobson VAmber Nisbet Hodgdon Charles F. Hoffman Casey F. Holland Suzanne Audrey Hopf Ashley Owens Hopkins Emily Manning Hord Michael Keith Horn Justin W. Hoskins Dana Clemons Hulbert Daniel Aaron Hunt William Jay Hunter, Jr.Cara Rose Hurak Michael R. Hurter Ray Shane Ibarra Clifton Miller Iler Mark Lee Ishmael Stacy Hullett Ivey Sarah Mindwell Jackson Christopher L. Jackson James Brian Jackson Steven R. Jaeger Charles E. Jennings Thomas Martin Jennings Keen W. Johnson Benjamin Clay Johnson Joseph Lee Johnson Barbara Lee Johnson David Lewis Jones IIIRebecca Anne Jones Lou Hedrick Jones Lucas M. Joyner Edmund P. Karem Margaret E. Keane Whitney C. Kegley Paul Jason Kelley Shannon M. Kelly Andrea M. Kendall Lawrence Craig Kendrick Eric C. Kennedy

2012 CLE Award Recipients (cont.)Richard Graham Kenniston Joshua Ryan Kidd Daran Paul Kiefer John Kevin King Christopher J. Kippley Michael Edward Kleinert Angela Wynn Konrad David V. Kramer Leilani K.M. Krashin Donna Sharon Kremer Steven Wilson Lamb Debra Hembree Lambert Kenneth W. Lampe Steven Paul Langdon Samuel Kenton Lanham Katherine M. Lasher Leigh Gross Latherow Thomas Wade Lavender IILukas Randolph Lawless Justin Lee Lawrence Norman W. Lawson, Jr.Lynn Vo Lawyer John R. Leathers Loretta G. Lebar Audrey Bertina Lee Paul Reid Lemasters Michael C. Lemke Mel Leonhart Matthew Bryant Leveridge Marc H. Levy Sarah Duff Levy Natalie Lynn Lewellen Darryl Lamont Lewis David Tyree Lewis Richard Lee Lewis IIJames Thomas B. Lewis Colleen P. Lewis Natalie Rae Lile Hollie B. Lindsey James M. Lloyd Zenaida Renee Lockard Gary S. Logsdon Lattie Buck Lominac IIIBenjamin Adam Long Samuel Houston Lowe Charles Ernest Lowther Paul Liston Madden, Jr.William Virgil Maddox IILinda Barth Magee Joel Daniel Mandelman Jeffrey C. Mando T. Patterson Maney Samuel Manly Michael Allen Mann Thom A. Marshall Timothy W. Martin Amie Jo Martinez Roger Lee Massengale Will Jared Matthews Patrick W. Mattingly Robert Denton Mattingly Molly Mattingly Steven Travis Mayo Robert Love McClelland Sherry Susanne McCollough Allen Keith McCormick Jared Curtis McCubbin Jerry Lee McCullum Tyson Stewart McDonald Edward Brandon McDonald Tina R. McFarland John T. McGarvey

Raymond Dycus McGee Stephanie L. McGehee-Shacklette Jerry Dale McGraw James Peter McHugh Michael Scott McIntire Arch Cox McKay IIIStephanie L. McKeehan Adrien Spencer McKiness John David McKinnis Michael Owen McKown Brendan Joseph McLeod Kipley J. McNally Chadwick Aaron McTighe Joshua A.K. McWilliams Mark Stephen Medlin Nora F. Meldrum Anna Deskins Melvin Elizabeth U. Mendel Henry Edward Menninger, Jr.Whitney M. Meredith Stephen Chad Meredith Margot K.K. Merrill Megan E. Mersch Stephen K. Mershon Mark Hammonds Metcalf John Henry Metz Barry Michael Miller Joseph Bernard Miller Jonathan D. Miller Jennifer J. Milligan James Carl Mills Stephen Dale Milner, Jr.Lisa Miracle Theresa Marie Mohan Donald P. Moloney IIEdward C. Monahan Susan C. Montalvo-Gesser Carla Hale Montgomery Catherine Ann Monzingo Roy Leamon Moore Christopher D. Moore Jennifer Ann Moore Marian E. Moore Myron Russell Morales Daniel Luke Morgan Keith Richard Morgan Sue Ellen Morris Daniel George Mudd Linda Strite Murnane Michael R. Murphy Richard V. MurphyAnna Kristy Murray Charles S. Musson Michael Linden Myers Joshua Wayne Nacey Wesley Matthew Nakajima Lisa K. Nally-Martin Mark Wayne Napier Patrick F. Nash John Steven Nelson Jennifer S. Nelson Nicholas John Neumann James Henry Newberry, Jr.Cheryl L. Newberry Elizabeth E. NicholasBradford Alan Nilsson Michael Eugene Nitardy John Edward Norman Andrew Eric Nystrom David Vance Oakes Lauren Adams Ogden Ryan Nicholas Olberding

Brittany L. Oliver Dionna H. Orr Duane Francis Osborne Morgan Todd Osterloh Peter Ostermiller Clayton Otis Oswald Alec J. Ott James Landon Overfield William Burr Owsley Reba Ann Page Todd Smith Page Jerry Alan Patton James Nicholas Payne Sean Patrick Perdue Amanda Beth Perkins Peter Perlman Marylee U. Perry Fred E. Peters Virginia Tate Phelps Richard Donald Piliponis John Byron Pinney Christopher Pittman David Lawrence Place Shari Polur Tara Brittany Pope Pamela W. Popp John V. Porter, Jr.Bobby Keith Porter Bonnie K. Potter Kimberly S.H. Price William C. Prow Mary-Jo Pullen Steven Thomas Pulliam J.D. Raine, Jr.Megan Dellane Randolph Erin Renee Ratliff Thomas Winston Rau Robert Thomas Razzano Stuart W. Read Lesly Ann Reisenfeld-Davis Kevin Joseph Renfro Philip J. Reverman, Jr.Bryce Carrigan Rhoades Emily Holt Rhorer James Sutton Rhorer Michael A. Richardson Eric Wade Richardson Andy Gene Rickman Gayle B. Robbins Lora Lee Robey Phyllis L. Robinson Darrell C. Robinson Patrick C. Roemer Barton Taylor Rogers Charles T. Rogers, Jr.Lelah Ann Rogers Laura Milam Ross Joseph Earl Ross Harry J. Rothgerber, Jr.John Jason Rothrock Jesse Ward Rowe IIPhillip Grant Royalty Michelle Grant Rudovich Ryan John Ruehle Brian Thomas Ruff Katherine Gail Russell Elizabeth G. Russell Shawn Robert Ryan Abraham Julian Saad Jeffery Lynn Sallee Courtney Ross Samford Jenny Lynn Sanders

Adam Knisley Sanders Joseph Donald Satterley Bridget A. Saunders Randall L. Saunders Alexander M. Say Thomas Edward Scarr Rebecca R. Schafer Brian Lee Schuette Daniel James Schulman Jessica Karen Schulte Paul Edward Schwarz Stephen George Schweller Jann Seidenfaden David Lewis Shadburne Raleigh P. Shepherd Ashlea Lashea Shepherd Benjamin T. Shipp Lisa Marie Shishmanian Walter Alan Sholar Melvin Bradley Shuffett, Jr.Corbet Michael ShullLeslie N. Simmons Rebecca Adams Simpson Floyd Anthony Skeans Michael R. Slaughter Eric Steven Smith Linda Andrea Smith James Stephen Smith Darby Lane Smith Donald Bryant Smith Tracey C. Smith Nathaniel G. Smith Zachary S. Smith Jason Philip Snyder Steven Vincent Sorg Gregory Sova Marcia Levey Sparks Tamela R.J. Spurlin Michael Boyd Stacy Dawn Ellis Stacy Steven Paul Stadler Phil A. Stalnaker Amy Robinson Staples Andrew Xavier Stawar Erica Stacy Stegman Gary Sutton Stewart David Laurence Stewart Maria C. Stewart Garnie Cliff Stidham Jesse Stockton, Jr.Sheila Clemons Stoffel Thomas K. Stone Heather E. Strotman Lauran Meg Sturm Edward Tyler Suttle Ann Price Swain Laurel K. Swilley Paul Gregory Sysol Mary Stewart Tansey Stacy Hege Tapke Rhonda Evon Taylor Donald Wayne Taylor, Jr.Marsha Taylor Michele Thielhorn Linda Bernice Thomas Tad Thomas Paulette M. Thomas Jennifer Thomas John Andrew Thomason Helen E.L. Thompson Edward Michael Thompson Krsna Isvara Tibbs

Melissa L. Tidwell Lucius Eli Tillman William Tracy Patricia J. Trombetta Karl Nelson Truman Joan Mary Tumblison Nathaniel M. Uhl Melissa S. Van Wert Renee Sara VandenWallBake John Jay Vandertoll Patrick R. Veith Jane Adams Venters Christina L. Vessels C. Lloyd Vest IIKeith W. Virgin Robert Matthew Vital Robert J. Vonckx Daniel Lee Waddell Michael Odell Walker Eileen Walsh Patrick J. Walsh Thomas Morgan Ward, Jr.Daniel Isaac WaxmanStephen M. Wayne Robert Charles Webb Harry Patrick Weber Mark Clark Webster Karen Michelle Weimar Rebecca Anne Weis Gregory Brian Wells James Robert Wells Diana Nicole Wells Kristin Marie Werner Diana Jean Werkman Brian Scott West Natalie Ann West Richard WestinShanda Lea West-Stiles Mark Wettle Paul Lewellin Whalen Barbara Maines Whaley Aaron Gregory Whaley Thomas Edward Wheeler IIEmily Ann White Jenny Sue White Pierce Butler Whites Daniel E. Whitley Kimber Leigh Whyte Serah E. Wiedenhoefer Elizabeth A. Wieneke Kyle Robert Wiete Clay F. Wilkey Emily R. Wilkey Charles Evans Wilkinson Jane Rice Williams Clint Grainger Willis Chappell R. Wilson Kenneth Ray Witt Karen E. Woodall Jeff A. Woods Rebecca Keene Wooldridge Audrey Nicole Woosnam Ronald Brian Wright Jacqueline S. Wright David L. Yewell Brent Yonts George Joseph Zamary Sara Beverly Zeurcher Robert C. Ziegler

Congratulations

2012 CLE Renewal Award RecipientsCongratulations to the following members who have received the CLE award by obtaining a minimum of 62.5 CLE credit hours within a three-year period, in accordance with SCR 3.680, and renewing the award by obtaining at least 20 hours in subsequent years.The CLE Commission applauds these members for their efforts to improve the legal profession through continuing legal education.

John R. Adams Angela Adams Hornbeck Gary William Adkins Daniel T. Albers Barbara Mary Albert Kenneth John Allen Sharon Kay Allen Brian Craig Allen Lori Janelle Alvey Stephen G. Amato John W. Ames E. Kenly Ames Kirtley B. Amos Michael C. Arnold Timothy G. Arnold Vickie Masden Arrowood Glen S. Bagby Thor H. Bahrman Michael Burris Baker Richard Alan Bales Kenton Lee Ball Stephen Gerald Barker Stephen L. Barker Rodney David Barnes David Michael Barron Charles Brooks Bates Anthony G. Belak Katherine A. Bell Michael J. Bender Alonzo F. Berry, Jr.Turney Powers Berry Simon-Brooks Berry Craig Patrick Bingham Tacasha Eve Bingham David L. Bohannon Robert K. Bond John T. Bondurant Nute Alan Bonner Paul Richard Boughman Roger Newman Braden C. Craig Bradley, Jr.Jill Roland Brady Frank Anthony Brancato Amanda Jane Branham Richard Martin Breen Matthew W. Breetz Mark Russell Brengelman David Joseph Bross Kelli E. Brown Kami Claudette Brumley

Elaine Marie Bukowski Dennis James Burke Mary Pyle Burns William R. Buzo Timothy James Byland Stephanie Lynn Caldwell Kelley Landry Calk Catherine G. Calvert Rutheford B. Campbell, Jr.Lynda Campbell John Ledyard Campbell Alton L. Cannon Angela M. Capps Carolyn Carroway Benjamin W. Carter John Keith Cartwright Mary Suzanne Cassidy Kyle Anne Citrynell Carolyn Clark Cox James Kelly Clarke Michael M. Clarke Tara Jean Clayton Charles Edward Clem Wynter Reneaux Collins James Albert Comodeca Gregory S. Condra Allison Inez Connelly Angela E. Cordery James L. Cox David Brent Cox Joshua Bryan Crabtree Joseph N. Crenshaw Roger L. Crittenden Boyce Andrew Crocker Charles J. Cronan IVSarah G. Grider Cronan Jack R. Cunningham Aaron John Currin Terry Martin Cushing Mary Elizabeth Cutter Laura Anne D’Angelo Tracey Leo Darbro Michael Davidson Benjamin K. Davis Douglas Lee Davis Edmonde Peter DeGregorio Matthew Beatty DeMarcus Jeffery Bryant Dean John Michael Debbeler Larry Colby Deener

Laura Day DelCotto Emily Dennis Richard J. Deye Peter G. Diakov Monica Louise Dias Rebecca B. Diloreto Ervin Dimeny Anna Leisa Dominick Daniel J. Dougherty, Jr.LeeAnna Dowan-Hardy Howard Neal Downing Jacqueline S. Duncan Pamela McGill Duncan Clifford R. Duvall Robert W. Dyche IIIJane Winkler Dyche Martha Marie Eastman Stefanie Joan Ebbens Kingsley Francis H. Edelen, Jr.Garry L. Edmondson Glenda Mae Edwards Timothy Joseph Eifler Angela Renee Elder Charles E. English, Jr.John Francis Estill Ross Thomas Ewing Catherine I. Falconer Michael J. Ferraraccio Thomas L. Ferreri Sarah E. Fightmaster Thomas William Fitzgerald Kenneth Bruce Flacks Patrick Clay Flannery Robert Louis Fleck Jason Shea Fleming Michael Flowers Melanie Ann Foote Paul Kevin Ford William H. Fortune George Edward Fowler, Jr.William G. Francis Cathy Weller Franck Brad Alan Fraser James H. Frazier IIIDanita Joleen Frederick Catherine S.N. Fuller Brian Matthew Furby Michael Alan Galasso Richard J. Gangwish IIMichael J. Gartland

Glenda H. George Sheila D.B. Gerkin Gordon T. Germain Richard A. Getty Stephen Graves Geurin Lee Jay Gilbert Sheldon G. Gilman David Mark Godfrey Robert Louis Goodin, Jr.Charles A. Goodman IIIWilliam T. Gorton IIILinda Ann Gosnell Daniel T. Goyette Jonathan R. Grate David C. Graves IIIRonald Lee Green Karen J. Greenwell William D. Gregory Gregory James Griffith John L. Grigsby Donald Edelen Groot Jerry Wayne Guffey Asa P. Gullett IIIBruce P. Hackett Sheldon Lee Haden Morgan Carol Hall Ryan M. Halloran Eric Allen Hamilton Candice Elaine Hammons Ashley Renee Hampton Michael R. Hance Traci Snyder Hancock Harold Eugene Harmon Norman E. Harned Jason Apollo Hart Patrick Alan Hartman Martin Lando Hatfield Walter Aden Hawkins Richard Wayne Hay Jennie Yon Haymond Michael Roy Head Mary J. Healy Stephen Keller Heard F. Richard Heath Mark Evan Heath Sheryl Egli Heeter Stephanie L. Hembroff Jennifer Lee Hendricks Sarah E. Henry Hiram J. Herbert, Jr.

2012 CLE Renewal Award Recipients (cont.)Aaron Neal Herrington Shawn Marie Herron David Jack Herzig Brian Leslie Hewlett Ronald Elmore Hines John Edward Hinkel, Jr.Lisa English Hinkle Malicia T. Hitch Maria Greta Hoffman Charles F. Hollis IIIKatherine M.D. Holm Elaina Lell Holmes Leigh A.P. Honaker Vicky Chandler Horn Bonnie Jo Hoskins Craig W. Housman Douglas C. Howard Gretchen Marie Hunt Linda Sue Hurst Brandie M. Ingalls Frederick G. Irtz IINicole Ellen Jackson Gregory K. Jenkins Walter Charles Jobson Harold M. Johns Gary C. Johnson Ronald E. Johnson, Jr.Paul E. Jones Susan M.W. Jones Charles Irving Jones, Jr.Lisa Cobb Jones Christopher W. Jones Kara Jill Justice Kelly Ann Kane Laura Ann Karem Carolyn Sue Keeley Charles R. Keeton Linda Marion Keeton John Warren Keller Sherri Lynn Keller Janet Godsey Kelley Jerred Thomas Kelly Valerie S. Kershaw Ellie Garcia Kerstetter Susan E. Kidd David Dale King John Stephen Kirby Jeremy Kirkham Carrie E. Klaber Jennifer L. Kovalcik Steven J. Kriegshaber Bruce Andrew Krone Bruce Edward Kuegel, Sr.La Mer Kyle-Griffiths Brian Jay Lambert Dean A. Langdon Stephanie D. Langguth Erwin Wayne Lewis Bobbi Jo Lewis Sheryl J. Lowenthal Mark Allen Loyd, Jr.Ryland F. Mahathey Dennis Charles Mahoney Reid Stephens Manley Frank Mascagni IIIAllie George Mason, Jr.

Ronald Scott Masterson Glenn Stephen McClister Earl Martin McGuire Bernard L. McKay John Gary McNeill Karen J.T. Meier Louis F. Mercado Keith D. Meyer John Downing Meyers Carl Theodore Miller Barry David Moore Jesse T. Mountjoy Amanda J. Mullins Melinda Ann Murphy Brittany Rae Musleve E. Bruce Neikirk Craig Fletcher Newbern, Jr.Leslie M. Newman Jessica Lee Newman Frank Kelly Newman Mark Edward Nichols Troy Nance Nichols Edward R. Nicklaus Richard Martin Nielson Bruce A. Niemi Nicholas M. Nighswander Spencer D. Noe Christopher S. Nordloh Eileen M. O’Brien Michael J. O’Connell Stephen M. O’Connor Lynne Marie O’Connor Margaret O’Donnell Mark Allen Ogle John Kirk Ogrosky David Y. Olinger, Jr.Samuel J. Ottley IIIJennifer S. Overmann Mark R. Overstreet Michael A. Owsley Brian Keith Pack Carol B. Paisley Stephen Palmer Peter David Palmer John Anthony Palombi Nicole Hou Wen Pang Barbara Maggio Pauley Alan Donald Pauw, Jr.David Gary Perdue Kimberly P. Perry Jeanne M. Picht Allen Carl Platt IIStephen Howard Poindexter Hans George Poppe, Jr.Richard C. Porter, Jr.Pamela H. Potter John G. Prather, Jr.Jeffrey Ray Prather Jerome Park Prather Nicole M. Prebeck Damon Loyd Preston Cathy Eileen Prewitt E. Austin Price Milton Hance Price Carl Eugene Pruitt, Jr.Patricia Lynn Pryor

Rebecca Kuster Ragland Randall Allen Ratliff, Jr.Gregory Adam Redden Paul E. Reilender, Jr.Robert Edward Rich Thomas Dwight Richards Charles E. Ricketts, Jr.Roger D. Riggs Casey Walter Riggs Jesse Leo Robbins Jeffery Allen Roberts Raymond R. Roelandt Erica Michelle Roland Joseph L. Rosenbaum Cassidy R. Rosenthal Gerald Dale Ross Thomas L. Rouse John C. Ryan Matthew Thomas Ryan John F. Salazar Stephen A. Sanders Kathleen Savatiel Michael A. Schafer Kathleen K. Schmidt John Hilary Schmidt Charles E. Schroer Jacqueline K. Schroering Michael Stuart Schwendeman Philip Joseph Schworer John J. Scott David Michael Scott George L. Seay, Jr.Marion D. Seitz Kathryn Hibbs Senter Richard Allen Setterberg Jimmy Adell Shaffer Kathleen Marie Sheehan Jeffrey E. Sherr Phillip Dane Shields Karen Lee Shinkle Patrick Alan Shoulders Ashley Renee Shouse Shane C. Sidebottom Hamilton B. Simms Frank Gates Simpson IIIAndrea C. Simpson Logan Nicholas Sims Mark Albert Sipek Diana L. Skaggs Angela Elaine Slaton Gordon Ray Slone Matthew Jon Smith Linda Tally Smith Meggan E. Smith Scott M. Smith Valorie Denise Smith Mark Francis Sommer G. David Sparks Herbert B. Sparks Jamie Lynn Spinks Sarah Cronan Spurlock Chandrika Srinivasan Debra Kaye Stamper Rhonda S. Stanger Jackie Lynn Steele Jennifer Ann Steele

Carey Kathleen Steffen Michael James Stegman E. Douglas Stephan Andrew Martin Stephens Robert Ernest Stephens, Jr.Kenneth S. Stepp Michael Lee Stevens Melissa Ann Stevens Jason Vincent Stitt Robert Johnson Stokes, Jr.Eric S. Stovall Randall Scott Strause Melanie Lee Straw-Boone Robert Kenneth Strong Michael P. Sullivan Sarah B.E. Tankersley Gregory L. Taylor Jason A. Templin Timothy B. Theissen Daniel N. Thomas Dennis Leo Thomas David H. Thomason Jennifer Lynn Thompson William Eugene Thro Lindsay Hughes Thurston Roy W. Tooms Denise Nicole Trauth Allen C. Trimble Gretchen A. Tromp Robert Steven Ukeiley Thomas Allen Van De Rostyne Patricia A. Van Houten Michael J. Van Leuven Richard Allen Vance Marcus Lee Vanover Jay R. Vaughn James Anthony Vaught Jonathan Lee Wampler Gregory Ward Penny R. Warren Melanie McCoy Warren John Scott Waters IVWhitney F. Watt Jenna Renee S. Watts Leonard A. Weakley, Jr.Richard McKee Wehrle R. Leonard Weiner John Kevin Welch Teresa Kay Whitaker Tamela Jane White Michelle Renee Williams Kenneth Thomas Williams IIWesley Kiser Williams Mildred Gail Wilson Linda Carnes Wimberly Jennifer L. Wittmeyer Jamhal Lashon Woolridge Gerald Edward Wuetcher Wilbur M. Zevely Michael Dean Zimmerman

WHO, WHAT, WHEN & WHERE


ON THE MOVEProminent constructionattorney William G. (Bill)Geisen has joined Stites& Harbison, PLLC, as amember of the firm’sConstruction ServiceGroup. Geisen is the onlyattorney from the GreaterCincinnati area who is afellow in the AmericanCollege of Construction

Lawyers, an honor reserved for the top onepercent of the U.S. construction bar. Geisenwill continue his practice in the Cincinnati/Northern Kentucky market. Stites &Harbison is in the process of opening anoffice in the RiverCenter II building inCovington. This will be the firm’s firstoffice in the Greater Cincinnati area andwill extend the firm’s daily practice intoNorthern Kentucky, Ohio and southeasternIndiana. Geisen’s construction practicefocuses on contract negotiation, disputeresolution and litigation.

Congratulations toBrandon Faulkner ofour Lexington office ashe was recently namedpartner of Quintairos,Prieto, Wood & Boyer,P.A. Faulkner was anassistant Commonwealthattorney for several yearsfocusing on gang and nar-cotics related prosecu-

tions before he went into private practice.He is now instrumental in driving ourlong-term care defense practice in theeastern part of Kentucky which includessome of the nation’s most difficult defensevenues. Faulkner also handles profes-sional liability defense as well as productliability matters.

Frost Brown Todd recently namedRichard E. Plymale and David C.Trimble as members of the firm. Plymalepractices in the Business Litigation Group.With over 20 years’ experience as a civiland criminal trial lawyer, he concentrateshis practice in white collar crime defense,representing corporations and executivessubject to federal and state criminal andcivil investigation proceedings, includinghealth care providers and organizationsundergoing audits and investigations.Trimble is in the Insurance and TortDefense Practice Group. He has repre-sented insurance industry clients in cover-age, regulatory, and bad faith/unfair claimspractices matters throughout Kentucky and

Tennessee. Trimble has also representedhealthcare industry clients through multipleprofessional malpractice carriers and sev-eral hospitals in malpractice defense mat-ters, including University of KentuckyMedical Center, Trover Clinic/RegionalMedical Center, St. Joseph Hospital, andMarymount Medical Center. He also hasrepresented individual physicians and med-ical practice groups in licensure issues.

Christy J. Adams is pleased to announcethe commencement of her new practice,C. J. Adams Law, PLLC, located at 200S. Buckman Street, Shepherdsville. Sheplans to concentrate her practice in theareas of bankruptcy and creditors rights,probate, wills, collections, and generalcivil practice. Adams is available to assistclients in Bullitt, Nelson, Larue, Jefferson,and other nearby counties. The telephonenumber is (502) 543-2210 and emailaddress is [email protected].

The law firm of Stevenson, Land &Tierney (formerly Stevenson & Land) ispleased to announce that Matthew C.Tierney has become a partner in the firm.Tierney focuses primarily in the areas ofcivil litigation, real estate, estate planningand creditor-debtor law, including bank-ruptcy. Tierney is a 2003 graduate of CentreCollege and 2008 graduate of Thomas M.Cooley Law School. He is admitted to prac-tice law in all state courts and U.S. DistrictCourt, Western Division. Tierney joined thefirm following his admission to theKentucky Bar in May 2008. He is a mem-ber of the board of directors of DaviessCounty Senior Services, Inc.

J. Guthrie True, Richard M. Guarnieri,and William C. Ayer, Jr., are pleased toannounce the formation of True GuarnieriAyer, LLP. Also joining them as an associ-ate is Whitney True Lawson. True is a1981 graduate of Georgetown College anda 1984 graduate of the University ofKentucky College of Law. Guarnieri is a1983 graduate of Centre College and a1986 graduate of the University ofKentucky College of Law. Ayer is a 1965graduate of Murray State University and a1968 graduate of the University ofKentucky College of Law. Lawson is a2007 graduate of Transylvania Universityand a 2011 graduate of the University ofLouisville Louis D. Brandeis School ofLaw. True Guarnieri Ayer, LLP is located at124 West Clinton Street, Frankfort, Ky., andis found on the web at www.truelawky.com.The firm is engaged in civil and criminaltrial and appellate practice, as well as thepractice of administrative law.

United States District Judge Charles R.Simpson III announced that, after over 26years of active service, he will take seniorstatus, effective Feb. 1, 2013. JudgeSimpson was appointed to the court in1986 by then President-Ronald W.Reagan. He had previously been in privatepractice as a lawyer. He served as chiefjudge from 1994 to 2001. Judge Simpsonwas named Judge of the Year by theLouisville Bar Association in 2000. TheKentucky Bar Association named him asKentucky’s Outstanding Judge in 2005.He received the Outstanding Alumnusaward from the University of LouisvilleLouis D. Brandeis School of Law in 1999,and in 2006 was the recipient of theGrauman Award, the law school’s highesthonor. Judge Simpson served in 2006 and2007 as a member of the JudicialConference of the United States, the fed-eral judiciary’s governing board, which ischaired by the Chief Justice of the UnitedStates. He represented the Federal DistrictJudges from Kentucky, Michigan, Ohioand Tennessee. Judge Simpson is a 1967graduate of the University of Louisvilleand its Brandeis School of Law in 1970.

Weber & Rose, P.S.C.,is pleased to announcethat Susan T. Merrill isof counsel with the firm.Merrill received her J.D.from the University ofLouisville Louis D.Brandeis School of Lawin 1995 and her B.A.from Baylor University

in 1991. During law school Merrillserved as president, Moot Court Board,1994-95, she received the Leon SiedmanMemorial Scholarship for leadership andservice, 1995; she was on the IntellectualProperty Law Moot Court Team, 1995;Susan was the runner-up, Pirtle-WasherMoot Court Competition, 1993. Merrillconcentrates her practice in the areas ofcorporate law & estate planning. She rep-resents business clients on a broad arrayof corporate matters including businessformation, mergers & acquisitions, com-mercial real estate leases & purchases,employment law matters, business suc-cession planning, estate & charitable giftplanning, probate law and adoptions.Prior to coming to Weber & Rose, sheserved as general counsel to a mid-sizedregional manufacturing company.

Gregg Y. Neal and Todd Davis with Neal& Davis, PLLC, 931 Main Street,Shelbyville, are pleased to announce thatMatthew H. Chandler has joined the

William G. (Bill)Geisen

BrandonFaulkner

Susan T. Merrill

WhoWhatWhenWhere_Mar13.qxd 3/18/13 9:40 AM Page 58

firm. Chandler is a native and resident ofShelbyville. He received his law degree in2001 from the University of KentuckyCollege of Law. Prior to law school,Chandler worked as a certified publicaccountant. Chandler’s experienceincludes business and corporate law, realestate, probate, estate planning, litigationand divorce. Chandler can be contacted at(502) 633-6002.

Frost Brown Todd is pleased to announcethe addition of a new associate, Amy E.Cooper, to the firm’s Louisville office.Cooper will be a part of the firm’s healthlaw service team in its regulated businesspractice group. During law school and fol-lowing graduation, she was a certifiedlegal intern and then post-graduate fellowfor the Disability Law Clinic at IndianaUniversity, representing and assisting inrepresentation of clients in Medicaid andSocial Security Disability hearings. Shealso served as a research assistant for theCenter for Law, Ethics, and AppliedResearch in Health Information at IndianaUniversity, researching HIPAA andHITECH regulations as well as state lawsrelated to health information. Cooperearned her J.D., cum laude, at IndianaUniversity Maurer School of Law. Sheearned her B.A. in economics, summa cumlaude, from Simmons College in Boston.

The law firm of Stevenson, Land &Tierney is pleased to announce thatShannon M. Tanner has joined the firmas an associate. Tanner’s practice willfocus on civil matters in both Kentuckyand Indiana. As resident of SpencerCounty, Ind., Tanner attended KentuckyWesleyan College where she graduatedmagna cum laude. After graduation,Tanner worked for NASA, before attend-ing the Indiana University School of Lawwhere she served as a managing editor forthe Federal Communications Law Journaland attained Dean’s Honors. She obtainedher license to practice in Indiana inOctober 2004 and in Kentucky in May2005. She is experienced in a number oflegal fields including domestic relations,bankruptcy and probate matters. Beforejoining the firm, she practiced in SouthernIndiana for eight years. Tanner is currentlya member of the Kentucky, DaviessCounty and Indiana State Bar associa-tions.

Dinsmore & Shohl LLP is pleased toannounce that Michael C. Merrick hasbeen promoted to the firm partnership.Merrick will work out of the Louisvilleoffice and helping clients resolve business

and commercial disputes of all shapes andsizes. While he has handled matters in vir-tually all major areas of dispute resolutionand litigation, his primary areas of prac-tice are business and commercial litiga-tion, estate and trust litigation andhealthcare law.

Congratulations toHeather McCollum ofour Lexington office asshe was recently namedpartner of Quintairos,Prieto, Wood & Boyer,P.A. McCollum is a 2001graduate of the Universityof Kentucky School ofLaw and although her

practice is broad based, she has becomeparticularly adept at defending insurancecompanies against bad faith allegations insome of the most difficult venues in thecountry.

Samantha Propp and Aaron Smith, bothattorneys at English,Lucas, Priest & Owsley,LLP, (ELPO) inBowling Green, wererecently named partner atthe firm. Propp came towork at ELPO in 2008.She works primarily inthe areas of environmen-tal law, school law and

employment law. She holds a J.D. from

Wyatt, Tarrant & Combs, LLP, is pleased to announce that the following attorneyshave been elected to join the partnership: Sharon Gold, Sara Veeneman, andMatthew Williams. Gold concentrates her practice in all areas of commercial litiga-tion including class actions, interference with business cases, breach of contract mat-ters, breach of fiduciary duty actions, products liability suits, and other complexlitigation. Gold practices in the firm’s Lexington office. Veeneman is a member of thefirm’s Litigation & Dispute Resolution Service Team. She concentrates her practice incommercial litigation and appellate law. Veeneman practices in the firm’s Louisvilleoffice. Williams concentrates his practice in the area of intellectual property lawincluding patent prosecution and enforcement, trademark prosecution and enforcement,trade secrets, copyrights, client counseling, transaction support, IP licensing, and IP lit-igation. Williams practices in the firm’s Louisville office. The firm also named ByronLeet, Frank Mellen and Turney Berry to its executive committee.



HeatherMcCollum

Samantha Propp

Sharon Gold Byron Leet Turney BerryFrank MellenSara Veeneman Matthew Williams


the University of ArizonaJames E. Rogers Collegeof Law, a Master of Artsdegree from theUniversity of SanFrancisco, and a Bachelorof Arts degree from theUniversity ofPennsylvania. She isadmitted to practice law

in Oregon and Kentucky, and is a 2009graduate of Leadership Bowling Green.Smith came to work at ELPO as an attor-ney in 2006. His practice focuses on civillitigation and corporate defense work. Heholds a J.D. from the University ofKentucky College of Law and a Bachelorof Arts degree from Centre College. He isadmitted to practice law in Kentucky andis a 2007 graduate of Leadership BowlingGreen. He currently serves as president ofthe Bowling Green-Warren County BarAssociation.

Fulton & Devlin, LLC, is pleased toannounce that CarolinePitt Clark has joined thefirm. Clark was anAdministrative LawJudge with theDepartment of Workers’Claims from 2008through 2012, and priorto that she served as com-missioner of theKentucky Public Service

Commission. She is a graduate of theUniversity of Kentucky College of Law,Centre College, and Sacred HeartAcademy. She concentrates her practice inthe areas of workers’ compensation law,civil litigation, subrogation, and whitecollar criminal defense.

Jefferson County Attorney MikeO’Connell has appointed three newAssistant County Attorneys: KarenDavis, Mark Lueke, Brianda Rojas.

Bingham GreenebaumDoll LLP is pleased toannounce that Daniel E.Fisher has rejoined thefirm’s Corporate andTransactional PracticeGroup. Fisher will belocated in the Louisvilleoffice, helping to expandthe regional impact of the

firm with his services. He focuses hispractice on complex business and finan-cial transactions, primarily focusing onthe health care and health insurance indus-tries. Fisher graduated from the University

of Cincinnati College of Law in 1986after obtaining his undergraduate degreein business administration with an empha-sis in accounting from WittenbergUniversity three years earlier.

Middleton Reutlinger ispleased to announce thatBilly J. Mabry hasjoined the firm. Mabryconcentrates in the healthlaw field having morethan 20 years of experi-ence representing hospi-tals, physicians, homehealth agencies, nursing

homes, provider sponsored organizations,teaching facilities, diagnostic centers,ambulatory centers and others. He hasrepresented health care providers acrossthe nation and in England. He has a keenknowledge and understanding of thehealthcare industry not just as a lawyer,but from an operations standpoint too.

Kentucky ElderLaw,PLLC, in Louisville, ispleased to announce thatMisty Clark Vantreaseand Kelly Gannott havebecome full equity part-ners in the firm. Alongwith Bernard andRhoda Faller, they focussolely on the needs ofolder citizens and otherpersons needing similarcare. Vantrease is thechair-elect of the ElderLaw Section of theKentucky BarAssociation. Gannottjoined the firm in early2011 after operating herown elder law practice.

Gerner & Kearns Co.,L.P.A., recentlyannounced the appoint-ment of Todd V.McMurtry as a partnerin the firm’s LitigationPractice Group.McMurtry brings withhim over 20 years of liti-gation experience and islicensed in both Ohio

and Kentucky. Since its inception in1987, Gerner& Kearns, Co., L.P.A. hasevolved into a full service creditor’srights law firm dedicated to the represen-tation of the banking industry in itsadmitted states of Ohio, Kentucky,Indiana and Michigan.

Frost Brown Todd is pleased to announcethe appointment of four new members in theLouisville office. The new members are:Nathan L. Berger, Joseph B. Miller, D.Christopher Robinson, and Laquita S.Wornor. Berger focuses his practice onassisting public and private companies withgeneral business and corporate issues, acqui-sitions and divestitures, among other strate-gic transactions. He frequently works withfinancial institutions regarding regulatoryissues and intra interstate reorganizationsand acquisitions. In addition to this, his bankregulatory practice includes the review,analysis and negotiation of various agree-ments and regulatory actions for financialinstitutions. Miller works in the areas ofmergers and acquisitions, private equity andventure capital transactions, the formation ofprivate investment funds and general entre-preneurial/startup and small business advice.He has extensive experience with M&Atransactions involving both public and pri-vate companies that range in different sizes.He also regularly assists entrepreneurs, start-ups and larger, closely-held companies on arange of general business matters. Robinsonis a trial lawyer in the firm’s litigationdepartment. He specializes in mass torts,products liability, and general tort defense,but he also represents clients in a variety ofcommercial disputes involving contractinterpretation and enforcement. In particular,Robinson represents major agriculturalequipment manufacturers on a nationalbasis, providing legal advice and guidancein over thirty jurisdictions. Wornor prac-tices in the firm’s Labor and EmploymentDepartment. Her practice is focused on rep-resenting employers in matters arising fromboth labor relations and employment litiga-tion. She has experience litigating age, sex,disability, and race discrimination claims, aswell as Family and Medical Leave Act(FMLA), and Uniformed ServicesEmployment and Reemployment Rights Act(USERRA) claims. Wornor has labor arbi-tration experience and she often advisesclients on issues arising from the NationalLabor Relations Act.

Billings Law Firm, PLLC, is pleased toannounce that Gary W. Thompson hasjoined their office as an associate attorney.Thompson received his B.A. in biblical stud-ies from Boyce College, a school of theSouthern Baptist Theological Seminary. Hethen received his J.D, summa cum laude,from the Mississippi College School of Law,where he was executive editor of theMississippi College Law Review. Upongraduation, Thompson was admitted to prac-tice law in Kentucky and Tennessee andserved as law clerk for the Honorable Greg



Aaron Smith

Billy J. Mabry

Misty ClarkVantrease

Kelly Gannott

Todd V.McMurtry

Caroline PittClark

Daniel E. Fisher


Lay in Laurel and Knox Circuit Court. Afterhis clerkship, Thompson moved toLexington, with his family and entered intopractice with a civil defense firm that exem-plified professionalism and where he gainedinvaluable litigation experience. Thompson’spractice with Billings Law Firm is devotedprimarily to litigation and real estate matters.

Clay B. Wortham hasjoined McBrayer,McGinnis, Leslie andKirkland, PLLC’sLexington office as anassociate in the HealthCare Department. Heprovides health law regu-latory and transactionaladvice to health care

providers and related entities, includinghospitals, pharmaceutical companies,health plans and physician groups. Clayjoins McBrayer from the Chicago lawfirm of Quarles & Brady LLP.

Garvey Shearer, PSC, isproud to announce thatJason E. Abeln wasnamed partner in the firm.Abeln joined GarveyShearer as an associate in2010 and has worked withthe founding partners sincehis graduation from theUniversity of Cincinnati

College of Law in 2005. Licensed in stateand federal courts in Ohio and Kentucky, hispractice focuses on civil trial and appellatelitigation. He represents businesses and indi-viduals in cases ranging from automobileaccidents to contract disputes to federalclass action regulatory compliance. In addi-tion to practicing law, Abeln served on theboard of the Young Lawyers Division of theCincinnati Bar Association for four yearsbefore being elected secretary of the execu-tive board of the YLS, then vice chair, andcurrently chair elect. Abeln earned aBachelor of Arts in history in 2002 fromThomas More College where he graduatedsumma cum laude.

Dov Moore announcesthe opening of his solopractice in BowlingGreen, Ky., Law Officeof Dov Moore, PLLC, ageneral civil, trial andappellate practice. Moorepracticed civil litigationwith Cole & Moore,P.S.C., from 1991-2012.

Moore graduated from VanderbiltUniversity Law School in 1991.



When you needTITLE INSURANCE

�inkTitle - Kentucky

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Jim May859-273-2271

[email protected]

Clay B. Wortham

Jason E. Abeln

Stites & Harbison, PLLC, announced today that three attorneys have been elected tomembership in the law firm. The new members are: Elizabeth Ann Johnson fromthe Lexington office; Amy Sullivan Cahill from the Louisville office; and WilliamCharles Ferrell, Jr., from the Nashville office. Those elected to counsel include:Kenneth J. Gish, Jr., from the Lexington office; W. Robert Meyer from theLouisville office; and Jennifer L. Kovalcik from the Nashville, Tenn., office.Elizabeth Ann Johnson is a member of the firm’s Health Care Service Group. Sheconcentrates her practice in health care law and regulatory issues. Amy SullivanCahill is a member of the firm’s Intellectual Property & Technology Service Group.Her practice focuses on trademark and copyright litigation, advertising review, trade-mark prosecution, trade secret counseling and litigation, licensing and transactionalmatters. William Charles Ferrell, Jr., is a member of the firm’s Intellectual Property& Technology Service Group. He is a Registered Patent Attorney with a degree inMechanical Engineering. His practice primarily focuses on patent litigation, however,his practice frequently involves other aspects of intellectual property including trade-mark and copyright litigation, patent drafting, patent prosecution, and counselingclients on the validity of a patent or the patentability of new ideas. Kenneth J. Gish,Jr., is a member of the Environmental, Natural Resources and Energy Service Group,where his practice focuses on complex facility permitting, electric utility regulation,sustainability, hazardous waste remediation, renewable and alternative energy devel-opment, compliance with regulatory requirements and environmental litigation. W.Robert Meyer is a member of the firm’s Creditors’ Rights & Bankruptcy ServiceGroup. His practice focuses on creditors’ rights, commercial foreclosure, receiver-ships, workouts, judgment enforcement, collections, and bankruptcy. Jennifer L.Kovalcik is a member of the firm’s Intellectual Property & Technology ServiceGroup. Her practice concentrates on designing and implementing intellectual propertyprotection plans, enforcing intellectual property assets and software licensing. Shealso prosecutes trademark and copyright registration applications, litigates trademarkopposition and cancellation proceedings, handles domain name and internet contentdisputes, as well as negotiates and drafts licenses and other contracts that implicateintellectual property or technology rights.

Amy SullivanCahill

W. RobertMeyer

Elizabeth AnnJohnson

Kenneth J.Gish, Jr.

Jennifer L.Kovalcik

William CharlesFerrell, Jr.

Dov Moore

Project5 3/15/13 2:24 PM Page 61

Fowler Bell PLLC ispleased to announce thatLaura Salzman hasjoined the law firm as anassociate practicing incommercial litigation andcollections. She holds apolitical science under-graduate degree fromNorthern KentuckyUniversity and her J.D. is

from the University of Kentucky Collegeof Law. She also voluntarily serves withthe Fayette County Foster Care ReviewBoard.

Paul J. Wischer is thenewest associate atZiegler & Schneider,P.S.C., in CrescentSprings, Ky. Wischer pre-viously worked withZiegler & Schneider as alaw clerk while attendingNorthern KentuckyUniversity’s Salmon P.

Chase College of Law where he graduatedcum laude. As an associate, Wischer willwork primarily in the firm’sBusiness/Corporate andMunicipal/Government Practice Groups.He is currently licensed in the state ofKentucky and is a member of theKentucky, Northern Kentucky andAmerican Bar associations.

Stoll Keenon Ogden PLLC is pleased toannounce that attorney Allison J. Donovanhas been promoted to member of the firm.Donovan practices law in the area of busi-ness services with a focus on mergers andacquisitions. She also practices in banking,securities and real estate law. Donovan is agraduate of the University of KentuckyCollege of Law and enjoys involvement incommunity organizations and efforts,including the American Heart Association’sLexington chapter and Junior Achievement.

Stoll Keenon Ogden PLLC (SKO) ispleased to announce it is opening an officein Owensboro. The office is the eighth forthe firm and the sixth location in Kentucky.The Owensboro office will have two attor-neys. Joining the firm is a longtimeOwensboro attorney with more than 40years of legal experience, Charles Lamar.Tim Kline, a 1995 graduate of DaviessCounty High School, who joined SKO in2010 after three years practicing in a topNew York City firm, will also practice inthe Owensboro office. SKO’s officeopened in late-January and is located at101 East Second Street, Suite 200.

Grant M. Axon ispleased to announce theformation of his law firm,Grant M. Axon, PLLC.Axon is a 2012,cumlaude, graduate from theUniversity of LouisvilleLouis D. Brandeis Schoolof Law. Grant M. Axon,PLLC, is located at 509

East Main Street, Warsaw, KY 41095. Thefirm can be contacted directly at (859)567-2000, or by facsimile at (859) 567-2966. Grant M. Axon, PLLC, concentratesits practice in litigation involving personalinjury, criminal, family and tax issues.

Stites & Harbison,PLLC, has created a newposition, chief talent offi-cer (CTO), which willoversee the firm’s effortsto attract and retain toplegal talent in our nineoffices throughout theSoutheastern U.S. TheCTO will oversee all firmrecruiting, professional

development and diversity efforts of thefirm. Shannon Antle Hamilton, anemployment law attorney with Stites &Harbison since 1988, has been named asthe firm’s chief talent officer. In her newrole, Hamilton will continue her duties androle as co-chair of the Employment LawService Group and will also practice as amember of the firm. Hamilton is a currentmember and the first chair of the firm’sDiversity Committee and was instrumentalin the drafting and adoption of the firm’sDiversity Plan. Hamilton also previouslyserved on the Recruiting Committee, per-sonally interviewing candidates for sum-mer, associate and lateral positions.

Greg S. McDonald is anassociate in theLouisville office ofQuintairos, Prieto,Wood & Boyer, P.A.McDonald focuses hispractice in the areas oflong-term care defense,insurance defense, insur-ance coverage and work-ers’ compensation

defense litigation. McDonald’s practice inthe areas of commercial and civil litiga-tion is augmented by his past experienceas an attorney with two Louisville lawfirms specializing in long-term caredefense and medical malpractice claims.McDonald received his J.D. from theUniversity of Louisville Louis D.

Brandeis School of Law in 2002 andMaster’s degree of business administra-tion from Bellarmine Collegein 1995. Heearned a Bachelor of Arts degree fromMiami University in Ohio in 1985. He isa member of the Louisville and KentuckyBar Associations.

Reminger Co., LPA, elected MatthewT. Lockaby as shareholders during theirannual November shareholder meeting.Lockaby focuses his practice on thedefense of employment, product liability,personal injury, and class action claims.



Adams, Stepner, Woltermann &Dusing, PLLC, is pleased to announcethe following appointments for the 2013calendar year: Jeffrey C. Mando –head of Civil Litigation PracticeGroups, Mary Ann Stewart –Government Practice chairperson,Stacey L. Graus – General CivilLitigation chairperson; Dennis R.Williams – Business Law chairperson,Michael M. Sketch – CommercialBanking and Real Estate chairperson,James G. Woltermann – EstatePlanning, Probate, and Elder Law chair-person, and Benjamin G. Dusing –Federal White Collar Criminal Defensechairperson. The law firm is proud tooffer its clients and prospective clients afull range of legal services in this com-petitive business environment. Adams,Stepner, Woltermann & Dusing, PLLC,continue to make strides to meet the

legal needs of GreaterCincinnati, as well asthrough Kentucky and thelocal region. The firmcontinues to offer focusedrepresentation and excep-tional client service andvalue to its clients.

Mary AnnStewart

Stacey L.Graus

Dennis R.Williams

Jeffrey C.Mando

Michael M.Sketch

Benjamin G.Dusing

James G.Woltermann

Shannon AntleHamilton

Greg S.McDonald

Paul J. Wischer

Grant M. AxonLaura Salzman


He has represented employers in stateand federal courts and state administra-tive agencies in connection with a widevariety of workplace issues and handledall phases of class action litigation, frominitial removal to federal court, todefeating class certification, to negotiat-ing and managing settlement. As a mem-ber of the American Bar Association, heserves on both the Class Action andDerivative Suits Committee and theEmployment Law Committee. He is alsoa member of the Kentucky BarAssociation, Fayette County BarAssociation, Federal Bar Association,Defense Research Institute and KentuckyDefense Counsel. Lockaby can bereached by calling 859-426-4631or byemailing [email protected].

Middleton Reutlinger ispleased to announce thatManav Das, Ph.D., hasjoined the firm. Dr. Dasis a registered patentattorney in the firm’sintellectual property prac-tice group. His areas ofconcentration includepatent prosecution andintellectual property liti-

gation. Dr. Das has a background in math-ematics and computer science. Hereceived his J.D. from the University ofLouisville Louis D. Brandeis School ofLaw in 2008 and his Ph.D. in mathemat-ics from The Ohio State University in1996.

Calfee, Halter & Griswold LLP ispleased to announce it is expanding itspresence in Ohio. Additionally, MatthewParrish joins Calfee’s legal team as itsnewest partner in the Cincinnati office.Parrish has many years of experience indomestic and international business trans-actions, with a focus on mergers andacquisitions, reorganizations and businessand capital markets. A particular area offocus of his practice has been workingwith manufacturers and marketers of con-sumer products, both domestically andinternationally. Parrish also serves ascounsel to a number of clients in theentertainment industry. In 2012, he wasrecognized as one of the country’s lead-ing entertainment lawyers by Newsweekmagazine.

IN THE NEWSMcBrayer, McGinnis, Leslie & Kirkland,PLLC is pleased to announce that W.Brent Rice, member of the firm’s

Lexington office, has been elected aschairman of the Lexington CenterCorporation. Lexington CenterCorporation (LCC) is a not-for profit501c4 corporate agency of the LexingtonFayette Urban County Government(LFUCG) created to manage and main-tain the following facilities: Rupp Arena,The Lexington Opera, LexingtonConvention Center, The Shops atLexington Center and Triangle Park. Ricesucceeds Cecil F. Dunn, of counsel in thefirm’s Lexington office, where he servedas chairman of LCC for 20 years of his26 years of board service.

Wyatt, Tarrant & Combs,LLP, is pleased toannounce that Lisa C.DeJaco has been select-ed to participate in theBingham Fellows Classof 2013. The BinghamFellows is the leader-ship-in-action arm of theLeadership Louisville

Center. For over 20 years, the programhas provided experienced leaders withthe opportunity to develop solutions forour community’s most pressing prob-lems. DeJaco is an alumni of theLeadership Louisville program, and apartner in the Firm. She concentrates herpractice in the area of intellectual proper-ty litigation, where she has prosecutedand defended unfair competition claims,trade secret disputes, and infringementactions over copyrights, trademarks andpatents.

Patla, Straus, Robinson & Moore, P.A. ofAsheville, N.C., is proud to announce thatfirm member, Andrew D. Atherton, hasbeen appointed chair of the NorthCarolina Bar Association’s Elder LawSection. Atherton is a graduate ofWestern Kentucky University, B.S.(1996) and Northern Kentucky UniversitySalmon P. Chase College of Law (2000).He focuses his practice on elder law andis licensed to practice law in NorthCarolina and Kentucky.

Robert M. Hoffer hasbeen named “The 2012Distinguished Lawyer ofthe Year” by the NorthernKentucky Bar Association(NKBA). Hoffer has beena member of NKBA since1985. He heads DressmanBenzinger LaVelle, psc’semployment law division

and represents employers of all sizesincluding some of the largest throughoutthe Kentucky and Greater Cincinnati area.He has also represented hospitals andphysicians for over 30 years on employ-ment and medical negligence issues andhas successfully litigated numerousemployment cases in federal and statecourts. He is the current past-president ofthe Kentucky Defense Counsel, chair ofthe Northern Kentucky Chamber’s Laborand Employment committee and a memberof the Northern Kentucky HumanResource Association. He has practicedlaw with Dressman Benzinger LaVelle,psc, since he earned his J.D. in 1980.



Manav Das,Ph.D.

Lisa C. DeJaco

Robert M. Hoffer


www.LegalDirectories.com

Peter Perlman ofLexington, has beennamed the 2013 presi-dent of the LitigationCounsel of America.Perlman is the principalof Peter Perlman LawOffices, P.S.C., where hespecializes in productliability and crash-wor-

thiness litigation. During nearly 50 yearsof practicing law, Perlman has won morethan 50 multi-million dollar verdicts andsettlements on behalf of his clients. Inaddition to being a fellow of theLitigation Counsel of America, he is amember of both the Inner Circle ofAdvocates and International Society ofBarristers, a fellow of the InternationalAcademy of Trial Lawyers, served on theBoard of Trustees of the NationalJudicial College, and is a founding mem-ber and past president of the TrialLawyers for Public Justice. He is alsopast president of the Association of TrialLawyers of America, the Civil JusticeFoundation, and the Kentucky Academyof Trial Attorneys. Perlman was also therecipient of the Compassionate GladiatorAward from the Florida JusticeAssociation and the Leonard M RingChampion of Justice Award from AAJ.This is award is given for outstandingcontributions to the civil justice system,overall character and integrity as well ashis contributions to the public good andwelfare. This award is also based on con-tributions to trial advocacy and the legalprofession generally.

Brian T. Goettl has been elected as thepresident of the Jessamine CountyChamber of Commerce for the 2013-2014term. Goettl has served on the board ofdirectors for three years and previouslyserved as treasurer of the organization. Heis the first county wide elected official tohave held the position. Goettl is a 1984undergraduate of the University ofKentucky Business School and a 1995graduate of the College of Law.

State Rep. SannieOverly, who began rep-resenting the 72nd HouseDistrict in 2008, willserve as the KentuckyHouse ofRepresentatives’ MajorityCaucus Chairwoman forthe next two years, fol-lowing an election by herfellow House Democrats.

She is the first woman ever to be part of

the House leadership team. Until the Jan.8th election, Rep. Overly had served aschairwoman for the past four years of theHouse Budget Review Subcommittee onTransportation, an influential committeethat puts together the state’s highwayplan. Rep. Overly is a Bourbon Countynative who has practiced law for 20years. Prior to that, she was a civil engi-neer with the Kentucky TransportationCabinet.

Bubalo Goode Sales &Bliss PLC announced thatLeslie M. Cronen hasbeen named one of the“Top 40 Under 40” byThe National TrialLawyers. Cronen is anattorney in the Louisvilleoffice. She joined the firmin 2006 and concentrates

her practice in the areas of wrongful death,medical malpractice, pharmaceutical liabil-ity and mass tort litigation on behalf ofinjured individuals. Cronen received herJ.D., with honors, from the University ofLouisville Louis D. Brandeis School ofLaw. There she was involved in the LawReview, Moot Court and honor council.She earned her undergraduate degree fromthe University of Louisville. Cronen is amember of the American Bar, KentuckyBar, Indiana State Bar, Louisville Bar,Kentucky Justice and Indiana TrialLawyers associations and the AmericanAssociation for Justice. She is aLeadership Academy fellow and com-pleted a two year term as an associatemember of the Brandeis Inn of Court.

Felix Gora, a partner atRendigs, Fry, Kiely &Dennis, has been certifiedby the Ohio State BarAssociation as a specialistin Labor and Employmentlaw. This certificationmakes Gora one of asmall group of attorneysin Ohio to have earned

this distinction. Gora’s practice is concen-trated in the areas of employment, insur-ance, civil rights, personal injury appellateand aviation law. Gora’s court appellatebackground is a key factor in his selectionto handle some of the most difficult proce-dural issues in litigation. Gora received hisundergraduate degree at Miami University.He is a 1980 graduate of University ofCincinnati College of Law.

Hospice of the BluegrassAnnounces 2013 BoardChair,D. WoodfordWebb, Jr., of counsel withWebb, Hoskins, Glover &Thompson, P.S.C., is serv-ing a second year as chair-man of the Board ofHospice of the Bluegrass.Webb earned his J.D. fromNorthern Kentucky

University Salmon P. Chase College of Lawin 1996 and a Bachelor of Science degreefrom Washington & Lee University in 1990.

Laura Day DelCotto of DelCotto LawGroup PLLC has been nominated as aKentucky fellow in the American BarFoundation. The American Bar Foundationis an honorary organization of lawyers,judges, law faculty, and legal scholarsselected by their peers for demonstratingoutstanding achievements in the legal pro-fession. The foundation, created in 1952 bythe American Bar Association, is recog-nized as the nation’s premier research insti-



Peter Perlman

Rep. SannieOverly

Leslie M. Cronen

Felix Gora

The law firm of Bubalo Rotman PLCchanged its name to Bubalo GoodeSales & Bliss PLC. The new name rep-resents continuing growth and newcapabilities – it recognizes all the part-ners plus it includes a new attorney whois associating with the firm. The attor-neys who comprise the firm name areGregory J. Bubalo, Christopher W.Goode, Kenneth L. Sales and Paula S.Bliss. This transition also recognizes theexit of Steven B. Rotman to pursueother interests. Bubalo Goode Sales &Bliss PLC is a plaintiff litigation firmhandling cases for individuals injured byprescription drug side effects, productdefects, vehicle accidents and othertypes of catastrophic damage caused bythe negligence of others. The firm han-

dles individual cases in allparts of the country andalso participates in multi-district litigation of masstorts cases. Bubalo GoodeSales & Bliss has officesin Louisville, Lexingtonand Boston.

Gregory J.Bubalo

ChristopherW. Goode

Paula S. Bliss

Kenneth L.Sales

D. WoodfordWebb, Jr.

WhoWhatWhenWhere_Mar13.qxd 3/13/13 7:57 PM Page 64



To purchase copies, complete the order form below and mail or fax it to Butler Books, P.O. Box 7311, Louisville, KY 40207

– Fax (502) 897-9797

I would like to purchase the following number of copies of

KENTUCKY LAWYERS SPEAKORAL HISTORY FROM THOSE WHO LIVED IT

GERALD R. TONER, EXECUTIVE EDITOR AND CHAIR, ORAL HISTORY PROJECT • LESLIE W. ABRAMSON, EDITOR$24.95Hardcover, with full-color dustjacket6 x 9552 pages

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In KENTUCKY LAWYERS SPEAK: Oral History From Those Who Lived It, seventy-four lawyers, interviewed over afifteen-year period (1993 – 2008), share stories and personal reflections on their lifetime of practicing law in theCommonwealth of Kentucky.

This unique collection of one-on-one conversations with senior members of the Kentucky Bar is fascinating andimportant reading for students of history and the law. Born between 1903 and 1933, they all lived through the GreatDepression, fought in World War II and Korea, and have left indelible marks on the legal profession in Kentucky.

Their oral histories and reminiscences, captured in over 4,000 pages of original transcripts, have been edited by theKentucky Bar Association, with support from the Kentucky Bar Foundation, into this extraordinary collection of interviewswhich will preserve their life stories and legacy for posterity and inspire future generations of Kentucky lawyers.

Published by Butler Books

To order copies of Kentucky Lawyers SpeakOral History From Those Who Lived It

complete this form and mail or fax it to:

Butler BooksP.O. Box 7311Louisville, KY 40207Phone (502) 897-9393 Fax (502) 897-9797Email [email protected]

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KENTUCKY LAWYERS SPEAKoral history from those who lived it

a publication of the kentucky bar association

KENTUCKY LAWYERS SPEAKoral history from those who lived it

k

Funded by a generous grantfrom the Kentucky BarFoundation, “Kentucky LawyersSpeak does what any goodbook should – it makes youwant to read on,” according to areview by Dr. James C. Klotter,the State Historian of Kentuckyand a professor of history atGeorgetown College. “The sto-ries here tell of the human sideof the law, of the joys and sor-rows, of the hopes anddespairs, of the humor andpathos. These interviews pro-vide the raw material of history,from those who lived it, forthose who enjoy it now. Theymake the law come alive andmake history come alive.”

Copies of Kentucky LawyersSpeak are now available fromthe publisher, Butler Books. Thebook may be purchased onlineat www.butlerbooks.com or byfaxing (502-897-9797) or mail-ing your order to Butler Books,P.O. Box 7311, Louisville,Kentucky 40207.

CLICKwww.butlerbooks.com

tute on issues facing the legal system andthe impacts of the law on society. Selectionas a fellow in the foundation is limited toone-third of one percent of the lawyersadmitted to practice in each jurisdiction ofthe United States.

Hall, Render, Killian, Heath and Lyman,the largest health care focused law firm inthe nation, has capped off a year of growthwith the formation of a pharmacy practicearea. Although this formal practice area isnew, several attorneys in the firm have uti-lized their pharmacy-related knowledge andexperience in serving clients for years.Attorneys who practice in Hall Render’spharmacy practice area counsel clients,including retail pharmacies, mail-orderpharmacies, hospitals and long-term care

providers, regarding the full spectrum ofpharmacy and drug-related matters.Services address provider and professionalissues, including regulatory compliance andenforcement support, development andmaintenance of compliance programs,Medicare and Medicaid reimbursement, pri-vate payor reimbursement, and fraud andabuse advice and litigation defense.

Bingham Greenebaum Doll LLP attorneyMark A. Melvin was recently elected toserve on the board of directors of the TomSawyer State Park Foundation for a three-year term. The board strives to build publicsupport, awareness and utilization of thepark, and they encourage state governmentsupport of Jefferson County’s representa-tive in the Kentucky state park system. The

Tom Sawyer State Park Foundation is avolunteer organization that contributesideas and funds to benefit projects andactivities at E. P. “Tom” Sawyer State Park.Melvin is an attorney in the firm’sLouisville office and a member of theCorporate and Transactional PracticeGroup. His practice focuses on mergersand acquisitions, securities, antitrust and avariety of matters in the distilled spiritsindustry. Melvin is a member of theKentucky Bar Association, Louisville BarAssociation and the 2013 graduating classof the Funds for the Arts’ NeXt!Leadership Development Program. Hereceived his bachelor’s degree from theUniversity of Richmond and his law degreefrom the University of Louisville Louis D.Brandeis School of Law.

Project1 3/18/13 10:46 AM Page 1

McBrayer, McGinnis, Leslie & Kirkland,PLLC, is pleased to announce that Amy D.Cubbage, of counsel, has been elected tothe KBA Board of Governors. She willserve a two-year representing the 4thSupreme Court District. The terms beginsJuly 1, 2013. She will be eligible to runagain for two more two year terms at theend of her first term.

Wyatt, Tarrant & Combs,LLP, is pleased toannounce that Lisa E.Underwood, a partner inthe Lexington office, hasbeen appointed to the2013 CommerceLexington Board ofDirectors. Underwood isa partner and member ofthe firm’s Corporate and

Securities Service Team. She concentratesher practice in the areas of equine law,business law, mergers and acquisitions,legislative and regulatory initiatives, rac-ing, pari-mutuel and gaming law.

Dressman BenzingerLaVelle, psc, (DBL)announced James A.Dressman, III, as thenew managing partner atthe firm. Dressman hasover 35 years of experi-ence representing com-mercial banks and otherbusinesses in complexfinancial transactions. He

joined the firm in 1977 and is currently thehead of the commercial law and banking

practice group. He succeeds the firm’slongstanding managing partner GeraldBenzinger. Dressman has extensive expe-rience representing entities and individualsin business mergers, asset acquisitions andsales, real estate transactions and develop-ment. He provides guidance for entitystructuring, reorganization, buy/sellarrangements, and business successions,focusing on business and tax matters.Benzinger, too, will remain active with thefirm, supporting DBL Law’s extensivehealth care practice.

Frost Brown Todd associate, Carrie A.Pytynia, has recently been elected to theSpecial Olympics of Kentucky Board ofDirectors. The board of directors is madeup of business and sports leaders, SpecialOlympics athletes, and athlete’s parentsand sets policies for the organization aswell as shapes the direction of the pro-gram. At Frost Brown Todd, Pytynia prac-tices in the commercial real estate andlending areas. She received her J.D. fromVanderbilt University Law School in2011. She also received her undergraduatedegree, summa cum laude, fromVanderbilt in political science.

Steven D. Jaeger, Esq., is proud toannounce that he was recently sworn in tohis third consecutive term on Edgewood’sCity Council, located in Kenton County.Jaeger is the founding member of TheJaeger Firm, PLLC, which handles casesin the area of personal injury, mediation,appeals, and domestic. Jaeger can be con-tacted at (859) 342-4500 or by email [email protected].

RELOCATIONChristine Ward ispleased to announce therelocation of her law prac-tice. Her new office islocated in SpringhurstOffice Condominiums at3801 Springhurst Blvd,Suite 107, Louisville, KY40241. Her new phonenumber is (502) 709-3618.Ward serves clients need-

ing legal counsel in family court matters.

Hughes & Coleman has moved theirLexington office to 2333 AlexandriaDrive, Suite 119, Lexington, KY 40504.



James A.Dressman, III

Christine Ward

Lisa E.Underwood

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Have an item for WHO, WHAT, WHEN & WHERE?The Bench & Bar welcomes brief announcements about member placements, promotions, relocations andhonors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, KentuckyBench & Bar, 514 West Main Street, Frankfort, KY 40601 or by email to [email protected].

Digital photos must be a minimum of 300 dpi and two (2) inches tall from top of head to shoulders. There isa $10 fee per photograph appearing with announcements. Paid professional announcements are also avail-able. Please make checks payable to the Kentucky Bar Association.



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East End law firm is seeking an experi-enced Litigation Associate in Tort andInsurance Defense practice group.Candidates should have 3-5 years expe-rience in litigation, and trial experienceis a plus. Kentucky license required,Indiana license a plus. Please send resumes to [email protected] or fax to 502 581-1344.

MORGAN & POTTINGER,Lexington Office, seeks an attorney withexperience in banking and real estatetransactions and documentation, andpresents attention to detail, enthusiasmand proficient legal skills who desire towork with a close-knit team. Flexiblesalary based on experience level.Resumes welcome by email [email protected], or byregular mail to: Office Manager, 601 W.Main Street, Louisville, Kentucky 40202.

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