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NIA_BenchBar_KBA40_2016.pdf 1 5/30/16 11:48 AM

1BENCH & BAR |

Contents 2 President’s Page

By Mike Sullivan 5 Terms Expiring for KBA Board of Governors 6 Q & A with Kentucky Supreme Court Chief Justice John D. Minton Jr.

By James P. Dady

Features: The Future of Law Practice12 Where Ethics and E-Discovery Collide: Competence and Modern Discovery Practice When The e are No Rules

By Judge David A. Tapp18 TheFuture of Law Libraries

By Tina M. Brooks, Franklin L. Runge and Beau Steenken

Columns24 Young Lawyers Division

By Rebecca Schafer26 University of Kentucky College of Law 27 Northern Kentucky University Salmon P. Chase College of Law28 University of Louisville Louis D. Brandeis School of Law30 Effective Legal Writing

By A.J. Besik, Chelsea Dermody, Devon Skeens, and Justin Walker32 Shop Talk

By Michael Losavio

Bar News34 KBA Board of Governors Minutes and Upcoming Meeting Dates 36 Book Review

By Judith D. Fischer37 KBA Website Highlight38 Judicial Conduct Commission

Departments42 Kentucky Bar Foundation/IOLTA46 Kentucky Lawyer Assistance Program48 Continuing Legal Education51 In Memoriam52 Who, What, When and Where

Several inside graphics by ©istockphoto.com/JesiWithersCover photo and president’s page image by: Charles Mahlinger Photography

VOL. 80, NO. 4

The B&B - Bench & Bar (ISSN-1521-6497) is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812. Periodicals Post age paid at Frankfort, KY and additional mailing office All manuscripts for publication should be sent to the Man aging Editor. Permission is granted for reproduction with credit. Publication of any article or statement is not to be deemed an endorsement of the views expressed therein by the Kentucky Bar Association.Subscription Price: $20 per year. Members subscription is included in annual dues and is not less than 50% for the lowest subscription price paid by subscribers. For more information, call (502) 564-3795.

Thisissue of the Kentucky Bar Association’s B&B-Bench & Bar was published in the month of July.

Send address changes to: B&B - Bench & Bar 514 West Main StreetFrankfort, KY 40601-1812

POSTMASTER

Shannon H. RobertsMANAGING EDITOR

Jesi L. WithersDESIGN & LAYOUT

James P. DadyEDITOR

John D. MeyersPUBLISHER

COMMUNICATIONS & PUBLICATIONS COMMITTEEJames P. Dady, Chair, BellevuePaul Alley, FlorenceElizabeth M. Bass, LexingtonJames Paul Bradford, PaducahFrances E. Catron Cadle, LexingtonAnne A. Chesnut, LexingtonRachel Dickey, LouisvilleTamara A. Fagley, LexingtonMark Flores, LexingtonCathy W. Franck, CrestwoodLonita Baker Gaines, LouisvilleWilliam R. Garmer, LexingtonLaurel A. Hajek, LouisvilleP. Franklin Heaberlin, PrestonsburgJudith B. Hoge, LouisvilleJessica R. C. Malloy, LouisvilleEileen M. O'Brien, LexingtonRichard M. Rawdon, Jr., GeorgetownSandra J. Reeves, CorbinGerald R. Toner, LouisvilleSadhna True, LexingtonZachary M. Van Vactor, LouisvilleMichele M. Whittington, Frankfort

| JULY/AUGUST 20162

PRESIDENT’S PAGE

A s my senior year in college came to a close, I had already decided to attend law school, but did not know where I wanted to attend. I considered going up east where my

sister and some friends lived, or to Washington, D.C., but Ken-tucky kept calling me home. Numerous people I trusted told me, “If you want to practice law in Kentucky, you should attend a Ken-tucky law school.” I followed that advice, and it is one of the best decisions I ever made. It led me to becoming a “Kentucky lawyer.” It is a title I wear with great pride. For years, the legal profession has endured attacks, many based on either misinformation or ignorance. Still, attorneys continue to prove to the public they have the honesty and integrity worthy of the public trust.

As we continue to face ever mounting pressures brought on by in-creased competition from non-lawyers and lawyers outside Ken-tucky, the rising costs of practicing law while revenues remain the same or decrease, and the stress inherent in the practice of law, we must keep in mind that we are members of a noble profession whose main purpose is to preserve the rule of law in our society, protect the rights of individual, and ensure justice for all.

As lawyers, we provide a service, legal services. Our job is to serve—to serve our clients, to serve the interests of justice, to serve our communities.

One such example of Kentucky lawyers serving our communities is the response to the crisis that arose last year in eastern Kentucky when almost 1,500 recipients of Social Security disability benefitslearned that their cases would be reopened because of suspected fraud, to which they were not a party, and they would have to produce additional evidence that they were entitled to Social Se-curity benefits Of course, this crisis resulted in a pressing need for attorneys to represent these people. Led by Kentucky lawyers John Rosenberg and Ned Pillersdorf, the Appalachian Research

and Defense Fund, the KBA, and the National Organization of Social Security Claimants Representatives, 135 lawyers respond-ed to represent these people. This number includes 54 Kentucky lawyers and 81 lawyers from other states. In a May 9, 2016 article in the Courier-Journal, it was noted that former KBA President Bob Ewald, who had never practiced a Social Security case, was one of the attorneys who stepped forward to help. Thearticle also mentioned Louisville attorneys Shannon Fauver and Dani Seitz, who took on 18 and 52 of these cases, respectively. Theseattorneys and the other attorneys who volunteered to represent these people in need make us proud and reflect ell on our profession.

Lawyers throughout the state perform similar good deeds every day. For example, in Owensboro, where I practice, on a regular basis local attorneys conduct a free legal clinic during the weekend at the local public library, offering free legal consultations to the public.

At the KBA, we will also continue to focus on serving our mem-bers and the public. During this past year, a process that started with a survey of our members culminated in the adoption of a new strategic plan to carry out the mission and purpose of the bar association set forth in SCR 3.025:

The mission and purpose of the association is to maintain a proper discipline of the members of the bar in accordance with these rules and with the principles of the legal pro-fession as a public calling, to initiate and supervise, with the approval of the court, appropriate means to insure a continuing high standard of professional competence on the part of the members of the bar, and to bear a substantial and continuing responsibility for promoting the efficie y and improvement of the judicial system.

I want to mention a few of the goals from this plan upon which we will work during the coming year.

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| JULY/AUGUST 20164

Over the past few years, we have seen a growing crisis with fund-ing of Kentucky’s judicial branch of government. Severe budget cuts since 2008 have signifi antly limited our state court system. Our judges last saw a pay raise eight years ago. Our justice sys-tem cannot properly serve the public without adequate funding. This past year, the KBA leadership and its members assisted our Supreme Court in communicating this need to the General As-sembly. At the end of the session, after hard work by all involved, funding of our judicial branch of government was greatly in-creased from the original bill passed by the House. Still, we realize all needs were not met. The KBA will continue to support the Chief Justice and our Supreme Court in their efforts to obtain adequate funding for the judicial branch of government.

In an effort to serve its members, the KBA plans to bolster its practice management resources. With advances in technology moving at an ever faster pace, it has become difficul for many lawyers to keep up with what are now basic or expected admin-istrative capabilities for their offi . This is especially true of new lawyers just starting a practice, more seasoned lawyers who may not have the time or resources to keep up with these changes, and solo and small fi ms that cannot afford to hire staff to handle of-fice management issues. As part of our strategic plan, the KBA will explore how it can better serve the practice management is-sues of its members by making more resources available to them.

As many of you know, we have lost too many of our friends and colleagues to suicide. The suicide rate among lawyers is over fi e times higher than the rate for the general population (13 deaths by suicide per 100,000 deaths vs. 66 lawyer suicide deaths per 100,000 deaths). When the spike in suicides among Kentucky

lawyers occurred several years ago, Yvette Hourigan and the KYLAP volunteers went into action to educate lawyers on how to recognize the signs of a suicide crisis. While the suicide num-bers have decreased in recent years, this suicide problem is part of a broader problem we continue to see in our discipline pro-cess—lawyers with mental health issues that impair their ability to practice law.

KYLAP has helped many lawyers with substance abuse and men-tal health issues, and we will strive to improve our ability to help these lawyers.

We will also continue our efforts with diversity, continuing legal education, and the attorney discipline process, as well as assisting veterans through the efforts of our Military Law Committee. I am grateful to this year’s outgoing president, Doug Farnsley, and past-president, Bill Johnson, for their work and dedication in the many accomplishments the KBA enjoyed in these areas under their leadership. It has been an honor to serve with and learn from both of these distinguished attorneys.

Again, we do all of these things because of our obligation to serve others, to help others.

I will never forget trying a will contest case about 20 years ago. Thelawyer who prepared the will was testifying about what he did to ensure the client making the will was competent. That lawyer witness happened to be my father. As he testified he repeatedly told the jury that in serving his client, he did what any “Kentucky lawyer” would have done in such a situation.

That phrase—a “Kentucky lawyer”—meant something to the ju-rors when they heard it. It meant skill, honesty, and integrity.

We at the KBA will continue to serve our members and the public with the goal that when people hear someone say “I am a Ken- tucky lawyer,” those ideals of skill, honesty and integrity will come to mind. I encourage all of you to help in these efforts by continu-ing your work in your communities, whether it is through pro bono work, service on local boards, institutions, churches or schools, or coaching your child’s soccer team. Th ough this connection to our communities, we can enhance the image of our profession.

In closing, it is my honor and privilege to serve the lawyers of Kentucky this coming year, and I look forward to the continued success of the KBA.

PRESIDENT’S PAGE

5BENCH & BAR |

On June 30 of each year, terms expire for seven (7) of the fourteen (14) Bar Governors on the KBA Board of Governors. SCR 3.080 provides that notice of the expi-

ration of the terms of the Bar Governors shall be carried in the Bench & Bar. SCR 3.080 also provides that a Board member may serve three consecutive two-year terms. Requirements for being nominated to run for the Board of Governors are con-tained in Section 4 of the KBA By-Laws and the requirements include filing a written petition signed by not less than twenty (20) KBA members in good standing who are residents of the candidate’s Supreme Court District. Board policy provides that “No member of the Board of Governors or Inquiry Com-mission, nor their respective fi ms, shall represent an attorney in a discipline matter.” In addition any member of the Bar who is considering seeking or plans to seek election to the Board of Governors or to a position as an Office of the KBA will, if elected, be required to sign a limited waiver of confiden iality regarding any private discipline he or she may have received. Any such petition must be received by the KBA Executive Director at the Kentucky Bar Center in Frankfort prior to the close of business on the last business day in October.

THE CURRENT TERMS OF THE FOLLOWING BOARD MEMBERS WILL EXPIRE ON JUNE 30, 2017:1st SCD – Michael M. Pitman, Murray2nd SCD – J. D. Meyer, Owensboro3rd SCD – Howard O. Mann, Corbin4th SCD – Amy D. Cubbage, Louisville5th SCD – Mindy Barfield, Lexington6th SCD – J. Stephen Smith, Ft. Mitchell7th SCD – Earl M. “Mickey” McGuire, Prestonsburg

t e r m s e x p i r e o n THE KBA BOARD OF GOVERNORS The Kentucky Bar Association continues to present

the Bench & Bar magazine in audio version through the KY NFB-NEWSLINE®. The KY NFB-NEWSLINE® audio information service is available to eligible subscribers by dialing a toll-free telephone or local call number on a touch-tone telephone; Newsline Mobile App on your i-Device; or on the web at www.nfbnewslineonline.org. Eligible individuals include those who cannot use con-ventional print because of a visual impairment; learning disability; physical impairment restricting the use of fi -gers, hands or arms; or other conditions causing limited access to print information.

For more information, visit our website at: http://www.nfbnewsline-ky.org

and our Facebook page at: https://www.facebook.com/audionewskentucky/

B E N C H & B A R AVAILABLE THROUGH

KY NFB-NEWSLINE®

http://www.nfbnewsline-ky.org

| JULY/AUGUST 20166

Q & A WITH CHIEF JUSTICE

The Bench & Bar asked Chief Justice John D. Minton Jr. to comment on the state of the Kentucky justice system in the wake of this year’s session of the General Assembly. The

questions put to him and his answers are reprinted here in full.

It was another difficult legislative session for Kentucky’s court system. What will be the impact of the appropriation on judicial programs, services, and personnel?This was a difficul legislative session because there was a great deal of uncertainty during the process. But in the end, I am very pleased with our final appropriation, which leaves the Judicial Branch in its best financial position in nearly a decade. Although the Supreme Court will still need to create efficiencie within our budget to ensure we have funds to carry forward at the end of the fis al biennium, we will avoid the mass layoffs, program cuts and courthouse closures we had anticipated early in the session.

I sincerely appreciate the efforts of our constituency—justices, judges, circuit court clerks, non-elected court employees, and law-yers across the Commonwealth—who rallied around the cause of adequate funding for the Judicial Branch. And I am grateful to Governor Bevin and members of the House and Senate for ap-preciating the role of Kentucky’s courts and ultimately realizing that another biennium of extreme underfunding would have dan-gerously undermined the ability of the Court of Justice to serve its constitutional role.

The Kentucky Constitution describes the judicial branch as separate and equal in a tripartite system. The Constitution assigns to the courts dozens of duties and responsibilities. Yet the way by which the courts obtain resources to perform their duties seems to treat the courts as just another com-peting claim on the budget. When and how were our courts relegated to the status of just another budgetary supplicant?The e has always been a struggle among the branches of govern-

ment throughout the history of the Commonwealth. Under Kentucky’s Constitution, the legislative branch was given the power of appropriation, which means that the judicial and executive branches are almost en-tirely dependent upon that branch for funding. And this dynamic sets the stage for a sometimes uncom-fortable tension. Our founders built this system of checks and balances not for our comfort but so that the power of each branch is somehow kept in check by the other.

The e is a persistent misperception that courts are—or should be—funded by litigants who pay court costs, fines and fees. But our policymakers, and ultimately the voters of Kentucky, wisely rejected that method of funding years ago when the Judicial Article was approved in 1976. TheJudicial Article created a unified statewide court of jus-tice and also created a system that funds the courts with a single appropriation by the legislature. Thissingle-appropriation meth-od recognizes the constitutional principle that justice is truly the business of state government. So with the statutorily created ex-ception of fi e percent of total court costs and fees (not to exceed $2.5 million), all collected court costs, fines and fees are remitted to the state’s general fund.

I recently read the transcript of Chief Justice John S. Palmore’s March 30, 1981, testimony before the Interim Joint Committee of Appropriations and Revenue. Thistestimony occurred just four years after the Judicial Article became effective, at a time when the new, unified court system was still trying to find its way within state government.

It appears from the transcript that Palmore was called before the committee to discuss his views on the relationship between the

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executive and legislative branches in regard to the budget process. The transcript is fascinating to read, primarily because so much of what the Chief Justice and the committee debated regarding the tension among the branches is still relevant—and still being debated—today.

With respect to the Judicial Branch budget, Palmore noted during his testimony that “there are a certain minimum ordinary expens-es that are necessary to government that must be met” and that the Judicial Branch is just “one of many things.” He also noted—as I have many times during my tenure—that the Judicial Branch is a “very, very small amount of the budget, insignifi ant really.”

So this question of when the Judicial Branch was relegated to “just another budgetary supplicant” probably dates to the foundation of the Commonwealth. Theebb and fl w of Kentucky’s desire for an independent judicial branch appears across the arc of our histo-ry. Certainly, the issue of full legislative funding for the judiciary brought a narrower focus with the adoption of the Judicial Arti-cle. But broadly speaking, Kentucky’s courts have always been a

budgetary supplicant, some years more successfully than others depending upon the political mood of the funders. Our constitu-tional structure means that this struggle will likely continue. Our role is to continue to educate the funders on the principle that a stable court system is the constitutional promise to all Kentuck-ians and to provide the funders with accurate, data-driven infor-mation to support our budgetary requests.

In Kansas, the legislature passed a statute that seemed to predicate the justice system’s budget on whether the Kansas Supreme Court would rule in a certain way on a case that was to come before it. Are you concerned that public opin-ion, as reflected in legislative chambers, does not value a viable, independent judiciary?From the very inception of the Commonwealth, Kentucky em-braced the principle of judicial independence and especially the principle of separation of powers, stating in Article I, Section 1 of the original 1792 Constitution: “The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a sepa-rate body of magistracy, to wit: Thosewhich are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

Despite signifi ant changes to the Kentucky Constitution in 1850 – the most signifi ant of which was to provide for the popular election of state court judges – and again in 1891, those words supporting a separate and independent judicial branch for the Commonwealth survived the test of time. Th y can be found to-day in Section 27 of the current Constitution.

Because I believe that the rule of law demands it, the lessons of history support it, and the Constitution of the Commonwealth requires it, I have an obligation as the chief justice to do every-thing I can to maintain Kentucky’s judiciary as a separate and in-dependent branch of government, even though the independence of Kentucky’s judicial branch has, over the 200-plus year history of the Commonwealth, been more of an aspiration than a reality.

Despite these historical difficultie I do believe the public values a viable and independent judiciary. Thissupport was evident during this last budget session, which was a success, in part, thanks to the public outcry following the proposed cuts to the Judicial Branch.

Chief Justice John D. Minton Jr. speaking at the 2016 KBA Annual Convention in Louisville, Ky.

Deputy Chief Justice Mary C. Noble (far right) performed the swearing-in ceremony for Chief Justice John D. Minton Jr.’s (far left) third term as chief justice of the Supreme Court of Ken-tucky. Joining him were his wife, Susan Page Minton (sec-ond from right), and daughter, Page Minton Smith.

| JULY/AUGUST 20168

I think this is reflecti e of the public’s understanding and appre-ciation of the services and programs the court system provides to the Commonwealth.

What happened in Kansas could certainly—and frighteningly—happen anywhere. But I fi mly believe that Kentucky’s court sys-tem has a strong relationship with the other two branches and that this most recent budget session is reflecti e of the Common-wealth’s commitment to maintaining a strong, independent Judi-cial Branch.

By some measures, the need for legal services has never been greater. How well are courts and lawyers meeting the need?Thistopic is particularly timely, given the recent remarks by Wil-liam C. Hubbard, immediate past president of the American Bar Association, at the National Conference of Bar Examiners annual conference in April. Mr. Hubbard’s remarks were focused on the “justice gap,” which, he noted, “imperil(s) the health of our justice system and our nation today” and “is a fundamental flaw in the fabric of our democracy.”1

According to Mr. Hubbard, the number of people who do not have meaningful access to our civil justice system is staggering—approximately “80 percent of the poor” and “50 percent of people of moderate means.”2 The immediate past president of the Con-ference of Chief Justices, Chief Justice David E. Gilbertson of South Dakota, reported during his remarks to the ABA House of Delegates that “at least one party is self-represented in three-fourths of civil cases in the state courts of the [United States].”3 Thislack of access to justice is particularly alarming given the “un-precedented number of lawyers and law graduates [who] cannot find legal ork.”4

As a court system, we have watched our caseloads decline since the beginning of the Great Recession. We know that more litigants are choosing alternative dispute resolution because the courts simply are not meeting their needs. And we know that a growing number of litigants who are coming to court are doing so without law-yers, either because they think they do not need a lawyer or they cannot afford one. We need to learn how we can evolve and adapt to meet the changing needs of the people we serve.

As William Hubbard noted during his recent remarks, lawyers also must learn how to adapt to—and coexist with—the evolving face of the legal system. This includes the ability to embrace, at least to some degree, some of the internet-based legal services like LegalZoom and Avvo. Whether we like it or not, these services are not going away. In fact, their share of the market is only grow-ing larger. So we must learn how to work with these platforms while simultaneously “preserving our own roles as legal experts, counselors, and advocates in accordance with the highest tradi-tions and standards of our profession.”5 Thismay include, as it has in some states, efforts by the bar and the Court to study and adopt rules regarding the licensure of new types of legal service profes-sionals that are focused on addressing the justice gap.

I am currently the president of the Conference of Chief Justices

(CCJ), which is an organization of state Supreme Court chief jus-tices from across the country. TheCCJ adopted a resolution in July 2015 that recognized the importance of closing the justice gap. Resolution 5, titled “Reaffirming the Commitment to Meaningful Access to Justice for All,” supports the “aspirational goal of 100 percent access to effective assistance for essential civil legal needs.”6

Theresolution further urges members of the CCJ “to provide leadership in achieving that goal.”7 As your chief justice, I intend to work with the bar over the next several years and provide the lead-ership necessary to work toward closing the justice gap and im-proving access to justice for all Kentuckians.

Judicial salaries have barely budged in Kentucky for a de-cade. The argument for a well-compensated judiciary has been that good salaries are necessary to acquire and retain top-level legal professionals as judges. Do you sense by any measure a lack of interest on the part of lawyers to becom-ing judges for that reason?In some regions of the state, yes. The costs related to running for offic and the relatively low pay for judges may be a deterrent for otherwise qualified candidates. This is especially true for law-yers who are engaged in a successful private practice. Our judicia-ry draws heavily from those in the public sector, which brings a wealth of institutional knowledge to the bench. But it also denies us the opportunity to form a more diverse judiciary.

Thereality is that judicial salaries in Kentucky are woefully inad-equate to compensate judges properly for the amount of time and effort they put into their jobs. A 2015 study of judicial compensa-tion from the National Center for State Courts shows just how far Kentucky has fallen behind other states. Thesalaries for our circuit court judges rank 42nd out of 50 states and last among the states surrounding Kentucky. Equally troubling is that low salaries have been compounded by recent reductions in pension benefits for the new judges coming on board. This decline, if unchecked, could have a long-term ef-fect on Kentucky’s ability to attract exceptional lawyers to judicial offi . Judges make far-reaching decisions every day and everyone who comes before the courts must have confidence in the abilities of those sitting on the bench. This past summer, I convened an independent Judicial Compen-sation Commission consisting of community leaders from across the state to study the issue of compensation for judges. Thecom-mission reviewed data relating to the salaries of Kentucky judges and seemed most compelled by the fact that since FY 2009, judges have received only two salary increases of 1 percent each. Thosewere preceded by two years—FY 2007 and 2008—when judges received only $400 increases. Thismeans that it has been a decade since Kentucky’s justices and judges have received a measurable increase in compensation.

The Commission concluded that there is a critical need to up-wardly adjust the compensation of justices and judges in Kentucky and ultimately recommended a fi e percent increase in judicial salaries in each of the next two fis al years. Unfortunately, the leg-islature did not approve an increase in judicial compensation this


9BENCH & BAR |

session. But improving judicial salaries will continue to top my list of budget priorities in the coming years because I believe this issue to be of critical importance to the health and viability of the court system.

The Administrative Office of the Courts conducted a study of how judges spend their working time. Can you describe the study and what it found out?The FY 2014 – 2016 Judicial Branch budget included language directing the Administrative Offic of the Courts to “develop and implement a weighted caseload system to precisely measure and compare judicial caseloads throughout the Commonwealth.” Thislanguage was in response to increasing demands from certain leg-islators for a statewide judicial redistricting plan to be conducted at the same time and in the same manner as legislative redistricting. Under this scenario, the redrawing of judicial circuit and district boundary lines would be based solely on population. We know that workload—not population—should be the deciding factor in determining judicial boundaries because population-based re-districting ignores the impact of geographic and social factors on court workloads. So we specifi ally requested that the legislature include the language in our budget bill regarding the weighted caseload study to give us an opportunity to gather and analyze the information we needed in order to develop a methodical, da-ta-driven redistricting plan.

The first question we had to address was how many judges are needed to resolve cases across the Commonwealth. We got that answer following a statewide time study that required judges to record their case-related and non-case-related time to provide an accurate picture of the judicial workday. The data underwent a quality adjustment process and was evaluated by an advisory com-mittee consisting of judges, circuit court clerks and prosecutors before it was analyzed by the NCSC. The result was a weighted

caseload model that calculates judicial need based on each court’s total workload. The final analysis also included a calculation of judicial need compared to the total number of judges currently authorized. The full report of the Judicial Workload Assessment Committee can be found on the Kentucky Court of Justice website.

The second question that is yet to be answered is how our re-sources should effectively and efficien y be deployed across the Commonwealth. This second phase of the study will ultimately result in a judicial redistricting plan that we intend to submit to the General Assembly before the next legislative session. Both the weighted caseload model and public policy considerations—i.e., maintaining access to justice, equitable allocation of judicial re-sources and geographic continuity—will be used to analyze the potential impact of reconfigu ing circuit and district boundaries. We also intend to study the feasibility of establishing family courts in each jurisdiction.

Advocates for the selection—as opposed to the election—of judges argue that the process should not be political. In the modern era, isn’t the selection of judges where it occurs at least as political as electing them?Theissue of judicial election versus other models of judicial selec-tion has been debated for years. Proponents of the appointment model claim it takes politics out of the selection of judges. But in recent years, the attractiveness of that model—particularly in states with retention elections—has lessened considerably because of the infusion of outside money into the process. Thefact is that all current models of judicial selection involve a political process, and none seems superior to the other.

Kentucky has reaffirmed its commitment to electing judges since 1850. Under both the 1792 and 1799 Constitutions, judges in Kentucky were appointed by the governor. But that changed un-

der the 1850 Constitution when all judicial office became elected. This put our judg-es, as one author has noted, “smack-dab in the colorful world of Kentucky electoral politics.”8 During the debates surrounding the Judicial Article in the late 1970s, there was a push by several groups – including the League of Women Voters – to return Kentucky’s judiciary to a selection model. But that effort was resoundingly rejected by the voters.

What is your vision for the Kentucky court system for five years, 10 years, 25 years from now?The e are several projects—some ongoing and some new—that I would like to con-tinue or pursue during my tenure as chief justice.

Since I first took offic in 2008, I have made it clear that my top priority is technology. We have set the stage for a paperless court system by implementing statewide eFiling

| JULY/AUGUST 201610

and working behind the scenes on an electronic case management system for both our trial and appellate courts. My goal is to con-tinue that progress by providing technology that is useful for the courts and those that access the courts. We know that improving our technology infrastructure will eventually allow us to reduce redundancies within the system by moving to centralized admin-istration of certain functions, such as bookkeeping, that are cur-rently operated out of our 120 separate branch office

I also want to look at innovative ways to recapture the cases we have lost by making the courts a more attractive option for dispute resolution. Part of this includes the need for civil justice reform to reduce the cost and delay that creates a burden for some litigants. And I want to work with the bar to find effective ways to close the justice gap by providing broader representation in civil cases. I would also like to consider creating a business court to better ad-dress the needs of commercial parties. Business courts have prov-en to be successful in other jurisdictions and provide an incentive for states in terms of economic development.

Another goal would be to address the cost and utility of law school and the bar exam for young people entering our profession. And we must continue recent efforts to diversify the bar by making the practice of law more enticing to people from a variety of back-grounds.

Finally, it will remain a top priority to improve the salaries of judges in the Commonwealth so that we continue to attract the most qualified andidates to the bench.

ABOUT JOHN D. MINTON JR. CHIEF JUSTICE OF KENTUCKYJOHN D. MINTON JR. first became chief justice in 2008 as the recession plunged Kentucky into an economic crisis. Faced with steering the Judicial Branch through a period of financial duress, he made a commitment to invest in the people who operate the courts and in the court technology that would reduce costs and deliver better ser-vice. Eight years later, his efforts have pro-duced a stronger, leaner court system that has launched a sweeping eCourts initiative, implemented eFiling in all 120 counties and overhauled the Judicial Branch sala-ry structure for the first time in decades. He is also seeking funding for a long over-due improvement to judges’ salaries.

His leadership has brought positive change to legal procedure and public policy. During his tenure, the Supreme Court has adopted the state’s first uniform family law rules and Juvenile Court rules. TheAdministra-tive Offic of the Courts has conducted a study to measure the caseloads of judges as the basis for addressing any workload imbalances among jurisdictions. And Chief Justice Minton has joined forces with the Executive and Legislative branches to

reform Kentucky’s juvenile justice system and overhaul its penal code to curb prison costs and improve public safety.

He is president of the national Conference of Chief Justices and an alumnus of the prestigious Toll Fellowship Program. He grad-uated from University of Kentucky College of Law and Western Kentucky University, which inducted him into the WKU Hall of Distinguished Alumni in 2013. He was also named Distinguished Jurist in 2012 by the University of Kentucky College of Law Alumni Association. Chief Justice Minton was in private practice and served as a Circuit Court and Court of Appeals judge before being elected to the Supreme Court in 2006.

ABOUT THE AUTHORJAMES P. DADY is a litigator with Gerner & Kearns Co., LPA at its offic in the his-toric James Taylor Mansion in Newport. He is the editor of the Bench & Bar, a fre-quent contributor to the magazine, and chairman of the KBA’s Communications and Publications Committee.

ENDNOTES1. Remarks of William C. Hubbard, Immediate Past President of the Amer-

ican Bar Association, National Conference of Bar Examiners, April 15, 2016, Washington, D.C.

2. Id. 3. Id. 4. Id. 5. Id. 6. Conference of Chief Justices and Conference of State Court Administra-

tors, Resolution 5, “Reaffirming the Commitment to Meaningful Access to Justice for All,” July 2015, available at https://www.ncsc.org/~/media/Microsites/Files/access/5%20Meaningful%20Access%20to%20Justice% 20for%20All_final.ash .

7. Id. 8. Kur t X. Mexmeier , Micha el Whit eman, & Jason Neme s, Unit ed At

Last: The J udicia l Ar t icl e a nd t he S t r uggl e to Ref or m Ken-tu cky ’s Cour t s, p. 22.


https://www.ncsc.org/~/media/Microsites/Files/access/5%20Meaningful%20Access%20to%20Justice%20for%20All_final.ashx



12

Features:THE FUTURE OF LAW PRACTICE

Much has been written regarding the intersection of E-Discovery and ethics. A great deal of the literature focuses on the basic duty of competence owed by every

attorney: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge,

skill, thoroughness and preparation reasonably necessary for representation.”2

In most jurisdictions, fulfi lment of this duty is framed by rules of procedure and case law.3 For example, pro-cedural rules may mandate preservation or disclosure requirements, which, if counsel chooses to ignore or consciously breach, places him or her in ethical per-il. Other duties, some regulatory or court imposed, may be implicated as well.4

| JULY/AUGUST 2016

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In states with well-defined rules or guidance from appellate courts, attorneys are better equipped to be zealous advocates for their cli-ents and avoid costly missteps. Forty-eight states, the District of Columbia, and United States federal courts have adopted some degree of E-Discovery rules.5 Kentucky, however, has neither rules nor guidance from appellate courts.6

Unfortunately, this lack of rules or guidance creates issues for Kentucky attorneys. Theissues involve traditional discovery7 diffi-culties such as preservation, recovery, production and privilege—all of which are magnified by the amount of information now generated by society. Because the Commonwealth lacks specificE-Discovery rules of criminal and civil procedure, attorneys are left to grapple with complicated legal and technical concerns.

THE EXPLOSION OF INFORMATIONDigital information is ubiquitous—it exists in every type of case from small claims court to complex multi-district federal litiga-tion.8 Indeed, the use of social media posts, text messages and emails is increasingly commonplace in local courts.9

Electronically stored information (ESI) consists of data that we create with and without conscious effort.10 It includes items con-sciously created such as emails and documents, as well as data cre-ated without conscious thought such as metadata, backup files black boxes on vehicles, and cell phone location. Undoubtedly, data created without conscious effort is surprisingly copious, and thus plentiful fodder for the discovery grist mill. In some cases, this unintentionally generated information may be of greater im-port than data willfully generated.

Thewealth of information created in this digital age is nearly un-fathomable. According to recent estimates: the number of emails sent and received per day in 2015 totaled over 205 billion, with a projected increase of three percent over the next four years;11

the number of business emails sent and received per user per day totals 122 billion;12 and nearly two-thirds of American adults (65 percent) use social networking sites.13 While larger computing device use remain fairly consistent with 78 percent of adults under the age of 30 owning a laptop or desktop,14 small handheld device use is soaring. In fact, 64 percent of American adults now own a smartphone15 and tablet computer ownership is up to 45 percent among adults.16 Thesheer volume of data created, stored, deleted, and copied can hardly be grasped.

Given this wealth of information, it is not surprising that lawyers are increasingly adept at sniffin out relevant digital data to assess the merits of litigation and for use at trial. As noted by experts in the field “[s]ince the beginning of the 21st century, electronic dis-covery has been the hottest topic in litigation.”17 In fact, judicial opinions regarding E-Discovery are being issued at rates compa-rable to overall trends in data production.18 Bigger fi ms and many corporations now contain departments and staff to deal with ESI issues.19 Nationwide, courts are becoming more accustomed to dealing with ESI—whether on the front end during discovery or the back end at trial.

Fundamental to comprehending ESI issues is the realization that until printed, all digital evidence is intangible—it exists in a neth-erworld of code stored within our devices or at an offsite and per-haps unknown location. The intangibility of digital evidence sep-arates it from paper on several grounds:

• It is easy and cheap to store and it is stored in multi-ple locations — such as how a phone may be synched to both a computer and the cloud;

• It is fast—data moves from one side of the world to another with the click of a mouse;

• It can be ephemeral—some portions may be easily erased or routinely deleted, such as with routine filemaintenance;

• It contains metadata which can be altered every time a file is etrieved; and

• In some instances it allows us to determine when and who retrieved or altered the data.

ALL THAT INFORMATION AND THEPRACTICE OF LAWGiven the differences between paper and data, discovery now bears little relationship to what the majority of Kentucky attorneys once knew and practiced. For instance, consider commonplace docu-ment production scenarios as we once knew them. Picture musty boxes of old records stored in the closet or file room of a mid-sized company client. Counsel, or more likely an associate or paralegal, tediously combs through hundreds, maybe thousands, of pages of records looking for responsive documents. Once identified coun-sel carefully checks for privileged material and then produces the records to the requesting party.

Fast forward to 2016 and ask, “where are the records?” Some re-cords may exist in paper form, but most will be maintained on computer hard drives, and they may no longer exist as a result of routine document retention or disposal policies. To further com-plicate matters, some records may be contained on archival disks, some may be stored off-site in a third party’s cloud computing storage, and then there are those pesky messages between our cli-ent’s employees, managers, and third parties. Since we do most of our communicating today by email and texting, those records are also stored somewhere on a computer or an employee’s phone, tablet, handheld device, or all of the above. Each electronic “doc-ument” may also contain hidden data which indicates how and

“Perhaps litigators should consider that courts no longer recognize E-Discovery inexperience (either on the litigator’s or client’s part) as an excuse for failure to produce or comply with discovery obli-gations, and that courts, generally, seem to fin E-Discovery disputes even more insufferable than traditional discovery disputes.”

– Monica McCarroll, Discovery and the Duty of Competence, 26 Regent U. L. Rev. 81 (2014).

https://twitter.com/intent/tweet?url=http://pewrsr.ch/1NF3kbK&text=64%25%20of%20American%20adults%20now%20own%20a%20smartphone%2C%20up%20from%2035%25%20in%202011.

https://twitter.com/intent/tweet?url=http://pewrsr.ch/1NF3kbK&text=64%25%20of%20American%20adults%20now%20own%20a%20smartphone%2C%20up%20from%2035%25%20in%202011.



when the document was created, last modified or viewed. Thi data reveals edits which may have been made, including notations by in-house counsel. Plainly stated, “[t]he days of simply photo-copying and reviewing the contents of a file cabinet have passed.”20

Juxtapose modern day ESI reality with the duty of competence. One commentator aptly describes the impact of modern day ESI as “seismic.”21 To avoid malpractice traps and the court’s ire, to-day’s counsel must be at least somewhat familiar with common-place storage and retrieval strategies, preservation issues, produc-tion formats, and metadata.22 If counsel is not comfortable with such topics—and most are probably not—they should be prepared to either (1) acquire such knowledge before undertaking represen-tation in a manner involving ESI, (2) associate with other counsel and relevant experts, or (3) decline the representation.

ETHICAL DUTIES AND E-DISCOVERYGiven the fundamental difference between the information of yesteryear and the modern reality of information availability, “old-fashioned” discovery management may invite ethical issues. Essentially, a lawyer who is not capable of addressing ESI issues, or procuring the assistance of others, may not be competent under emerging ethical standards.23

The Kentucky rule of competence is derived from ABA Model Rule of Professional Conduct 1:1. The ABA commentary now states that lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”24 While the commentary to the Kentucky rule has not been amended to include this specific language, guidance can be found within our existing commentary: “To maintain the req-uisite knowledge and skill, a lawyer should keep abreast of chang-es in the law and its practice.”25 The advent of ESI is arguably a change in legal practice. Plus, a growing body of case law and eth-ics opinions from other jurisdictions should serve as a cautionary flag or Kentucky lawyers who wish to practice in ESI cases. For example, the State Bar of California recently opined that at-torneys handling E-Discovery matters, either by themselves or in association with competent co-counsel or expert consultants, should be able to: initially assess E-Discovery needs and issues, implement appropriate ESI preservation procedures, analyze and understand a client’s ESI systems and storage, advise the client on available options for collection and preservation of ESI, identify custodians of potentially relevant ESI, engage in competent and meaningful meetings and confer with opposing counsel concern-ing an E-Discovery plan, perform data searches, collect responsive ESI in a manner that preserves the integrity of that ESI, and pro-duce responsive non-privileged ESI in a recognized and appropri-ate manner.26 This broad opinion summarizes what has become the standard of practice in much of the country.

A. INITIAL ASSESSMENT OF E-DISCOVERY NEEDS AND ISSUES

Not every case involves E-Discovery, but in today’s increasingly technological world, nearly every case potentially does.27 It is al-most a certainty that in all litigation some party, employee, or wit-ness has utilized an electronic device which stores ESI.

Counsel should preliminarily be able to assess whether data is likely to exist, where it might exist within a client or witness’s data storage system(s), and the probable costs associated with preserva-tion. Early on, counsel should also determine whether the client, the opposing party, or the relevant court require that the litigation be conducted as an E-Discovery case. If unable to perform these tasks, attorneys run the risk of sanctions or discipline.28 In some instances, a multi-disciplinary team approach may be necessary to conduct such an initial evaluation.29 This team might include outside and in-house counsel, personnel familiar with the client’s IT structure, and compliance officer

In the California Bar’s hypothetical, an attorney might be subject-ed to discipline where the attorney “failed to make an E-Discov-ery evaluation early” to determine case specific E-Discovery needs and his own E-Discovery capabilities prior to the first court or-dered case management conference.30 Such an assessment requires some degree of experience and “a working knowledge of the case law and professional literature.”31 Too often, E-Discovery failures result in sanctions because evidence is not timely produced or is lost altogether.32

B. IMPLEMENTATION OF ESI PRESERVATION PROCEDURES

One of the distinguishing characteristics of ESI is that it is ethe-real—it lacks substance and can disappear. Data can be lost for a variety of reasons and some are neutral such as technological fail-ure or routine document retention or disposal policies. Theloss of relevant ESI, regardless of whether the loss is neutral or nefarious, creates severe repercussions for lawyers and clients. A lawyer or a party with superior access to information who engages in “ad-vantage seeking behavior” by permitting or encouraging the loss (spoliation) of information reasonably necessary for litigation is subject to sanctions and attorneys are subject to discipline.33

Generally, the obligation to preserve evidence arises when par-ties knew or should have known that evidence may be relevant to future litigation, or it may arise from statutes or regulations.34

In some jurisdictions, lawyers have been sanctioned by bar au-thorities for unethical conduct relating to the lack of “experience in electronic discovery” which resulted in the loss (spoliation) of evidence.35 For attorneys, the failure to institute a sufficien “lit-igation hold” for potentially relevant data can be problematic.36

Counsel should also be cautioned that courts may impose sanc-tions relating to a party’s failure to comply with discovery orders, including those involving retention and production of ESI.37

Where a pattern of “ineptitude and missteps” by counsel or a party results in the withholding of data relevant to litigation, extremely hefty sanctions may result.38

In Kentucky, though spoliation issues are normally dealt with through jury instructions, a lack of applicable case law, statutes, and procedural rules makes it difficul to determine when liti-gation could be reasonably anticipated. Cautious attorneys who adopt a “better-safe-than-sorry” approach should consider imple-mentation of a litigation hold whenever a credible threat exists that the client will become involved in litigation.39

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C. TIMELY COLLECTION AND PRODUCTION OF RESPONSIVE ESI

Though much of the developing law relating to ethical issues in-volving ESI concerns counsel’s competence, or lack thereof, of greater concern may be those instances involving breaches of the duties of candor and fairness. Lawyers are barred from unlawfully obstructing another party’s access to evidence, knowingly disobey-ing an obligation under the rules of the tribunal, deliberately re-fusing to make reasonably diligent efforts to comply with a legally proper discovery request, and knowingly making false statements of fact.40

In essence, these rules ensure that truthful information is present-ed to the courts, juries and opposing counsel so that each may rely on that information in making decisions.41 Attorneys who allow inaccurate digital information to be presented to opposing coun-sel or the court risk adverse jury instructions; monetary sanctions, such as the imposition of fines shifting of attorney’s fees; and disciplinary action.

Theuse of “scorched-earth” or obstruction-ist approaches to discovery is particularly problematic and may run afoul of ethical canons. In Wachtel v. Health Net, Inc., an ERISA action, counsel repeatedly failed to preserve emails, did not produce relevant documents, and used boiler plate objections to obstruct or delay the production of ESI.42 This led the court to conclude that coun-sel’s strategy had been “a concerted war to waste huge time and resources.”43 Further, the corporate defendant failed to timely search and produce responsive documents thereby inhibiting the plaintiff ’s ability to adequately prepare for depositions and dis- positive motions, willfully concealed that ESI searches never occurred, compelled the plaintiffs to repeatedly seek court in-tervention for discovery abuses, employed a strategy of delay, and concealed non-compliance with court or-ders regarding discovery matters by “systematically ignoring ad-verse rulings.”44 As such, “aggressive sanctions” were appropriate.45

D. DISCLOSURE OF CONFIDENTIAL ESI Lawyers who lack competence with regard to E-Discovery issues may be unaware of the risks associated with the unintentional production of confidential material to an opposing party. Thesedisclosures typically, but not always, occur when counsel fails to ensure that discovery materials are scrubbed to eliminate prob-lematic metadata.46

Metadata is information that characterizes data—i.e., data about data.47 “In essence, metadata answers who, what, when, where, why, and how about every facet of the data that are being docu-mented.”48 It includes retained data relating to a document’s “ti-tle, author, date of origin, content, size and location, but may also include corrections, comments, deletions and other information stored in track changes.”49 “Some metadata, such as file dates and

sizes, can easily be seen by users; other metadata can be hidden from users but are still available to the operating system or the program used to process the data set or document.”50 Thosecom-ments, deletions and corrections are ripe for ESI savvy lawyers who employ a technique known as “metadata mining”—purpose-fully searching for metadata inadvertently sent by a producing at-torney, which is hidden within an electronic document and may include privileged information.51

Under our ethics rules, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”52 In some states, ethics opinions specifi ally address the affirmative duty of counsel to ensure that confide -tial metadata is protected from inadvertent disclosure.53 By way of example, the Mississippi Bar has determined that “[c]onfide -tial information contained within the metadata is subject to the provisions” of the ethics rules regarding protection of a client’s confidential in ormation.54

Lawyers who inadvertently disclose confi-dential information contained within ESI also risk waiver of any privilege, potentially harming their client’s interests.55 Recog-nizing this risk, knowledgeable attorneys may seek to enter into “non-waiver” agree-ments with opposing counsel to protect a responding party from the consequences of an inadvertent waiver. However, counsel should be aware that such agreements may not be enforceable against third parties.56

These agreements, now better known as “clawback provisions,” “evolved as a con-tractual safeguard to mitigate the risk of inadvertent waiver of the attorney-client privilege or work-product doctrines,—es-pecially when dealing with a large volume of documents.”57 Because inadvertent dis-closures in cases involving large amounts

of ESI are possible, some jurisdictions incorporate “clawback” pro-visions within their procedural rules.58 Even absent such rules, as in Kentucky, lawyers competent in ESI issues should know of the risk associated with unintentional disclosures and prepare for that eventuality by associating with qualified experts and executing non-waiver agreements with opposing counsel.

CONCLUSIONUltimately, attorneys bear responsibility for the conduct of discov-ery.59 A lawyer’s conduct in handling ESI issues which the lawyer is not competent to handle alone, even without Kentucky specificcivil or criminal rules of procedure, presents a risk of sanctions for unethical or impermissible conduct. Theseproblems arise from the failure to properly assess the ESI implications of a particular piece of litigation, an inability to handle the ESI issues, the failure to preserve all relevant evidence in a timely and effective fashion, the failure to produce responsive data, or the inadvertent disclo-sure of privileged data. Though Kentucky lacks procedural rules and case law relating to most E-Discovery issues, experiences in

“In a clawback agreement, both parties to a dispute agree in writing that in-advertent production of privileged ma-terials will not automatically constitute a waiver of privilege. If the producing party realizes the disclosure in a reason-able time, it can request the document's return, or “claw it back,” and the other party must comply. Therequesting par-ty is presumptively barred from using the privileged document to further its client's case.”

– Laura C. Daniel, The ubious Origins and Dangers of Clawback and Quick-Peek Agreements, 47 Wm. & Mary L. Rev. 663, 666 (2005).


other jurisdictions suggest that prudent counsel should develop some degree of familiarity with technology trends in litigation and either decline to accept representation in cases involving ESI, or associate with other, more qualified counsel and seek appropri-ate expert non-lawyer technical assistance. Given that nearly all cases likely involve ESI issues, Kentucky lawyers can ill afford to ignore the reality of the modern digital world.

ABOUT THE AUTHORDAVID A. TAPP serves as Judge of the 28th Judicial Circuit. He previously severed as an adjunct professor of law at the University of Louisville where he teaches E-Discovery. He writes and presents frequently on a wide variety of justice related issues.

ENDNOTES1. The author g atefully acknowledges the assistance of Shane Orr, KCOJ

Staff ttorney; Ashley Stearns Hoover, J.D. Candidate, University of Ken-tucky School of Law; and Molly Hardy, J.D.

2. SCR 3.130(1.1).3. Debra Bassett, E-Pitfalls: Ethics and E-Discovery, 36 N. Ky. L. Rev. 449,

450 (2009) (noting statutory law may create responsibilities and liabilities supplanting ethics rules); see also Fed. R. Civ. P. 26(a)(1)(A) (requiring par-ties disclose copies or a description by category and location of ESI prior to receiving discovery requests); Fed. R. Civ. P. 34(b)(2)(D)(ii) (requiring production of ESI in form ordinarily maintained unless production format otherwise specified)

4. While no specific Kentu ky ethics rule applies to E-Discovery, our general rules easily embrace common attorney lapses involving ESI, including the making of false statements of fact to opposing counsel or the court, offering false or fraudulent evidence, unlawfully obstructing access by another party to evidence, or disobeying court orders regarding scheduling or preservation of evidence. See SCR 3.130(4.1) (truthfulness in statements to others); SCR 3.130(3.3) (candor toward the tribunal); SCR 3.130(3.4) (fairness to opposing party and counsel).

5. Electronic Discovery Law, Current Listing of States That ave Enacted E-Discovery Rules, http://www.ediscoverylaw.com/state-district-court-rules/ (last visited April 22, 2016). The dvent of E-Discovery rules came in 2006 with the U.S. Supreme Court’s approval of E-Discovery amendments to the Federal Rules of Civil Procedure. Some states are “replicas”—states which have essentially adopted some version of the federal rules, but utilize their own numbering system. Institute of the Advancement of the Ameri-can Legal System, Unlocking E-Discovery: A Toolkit for Judges in State Courts Across the Nation 12 n.3 (2013) (including Florida, Iowa, Maryland, New Jersey, Michigan, Tennessee, Virginia, and Wisconsin). Other states have adopted at least minor changes. See T. Allman, E-Discovery in Federal and State Courts: The Im act of Rulemaking—Past and Future 2 n.13 (2014) (de-scribing Colorado’s amendment to C.R.C.P. 45(a)(1)(A)(3)(iii) regarding subpoena duces tecum practice to require production of “designated books, papers and documents, whether in physical or electronic form (‘records’)”). A slight amendment to the Kentucky criminal rules is scheduled for consideration by the Kentucky Supreme Court in late spring 2016. Thatproposed amendment would simply add the words “data” and “data compi-lation” to RCr. 7.24 (discovery) and RCr. 7.02 (subpoena duces tecum), thus mirroring the federal rules and the Kentucky Rules of Evidence. See Fed. R. Crim. P. 16(a)(1)(E) (“Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or cop-ies or portions of any of these items.”) (emphasis added); Fed. R. Crim. P. 17(c)(1) (“A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.”) (emphasis added); see also KRE 803(6) (including data compilations in business re-cords exception); KRE 1001 (including data compilations within definiti n of writings and recordings); and KRE 1005 (including data compilations

within public records). 6. Electronic Discovery Law, supra note 5 (noting that only Kentucky and

South Dakota have failed to adopt at least some E-Discovery specific ules of procedure).

7. Monica McCarroll, Discovery and the Duty of Competence, 26 Regent U. L. Rev. 81, 86 (2014) (“At its essence, discovery is about finding and d velop-ing facts to support or refute your client’s position.”).

8. Ryan P. Newell, The E-Discovery Promised Land: The se Of E-Neu-trals to Aid the Court, Counsel, And Parties, 15 Del. L. Rev. 43, 44 (2014) (“While E-Discovery was once associated only with large complex civil cas-es, the current reality is that ESI is implicated in nearly every case in every court.”); see also Nancy Levitt, Family Law In TheTwenty-First Century: An Annotated Bibliography, 21 J. Am. Acad. Matrim. Law. 271, 331-32 (2008) (including 40 ESI related articles for matrimonial attorneys).

9. Schreiber v. Schreiber, 29 Misc. 3d 171, 177 (N.Y. Sup. Ct. 2010) (“As it pertains to matrimonial matters, electronic discovery may be crucial [in the proper cases] to determine and confi m the existence of vital information.”); Fawcett v. Altieri, 38 Misc. 3d 1022 (N.Y. Sup. Ct. 2013) (personal injury case involving disclosure of social media posts).

10. ESI can be defined as “writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Fed. R. Civ. P. 34(a)(1)(A).

11. The adicati Group, Email Statistics Report, 2016-2019, http://www.radicati.com/wp/wp-content/uploads/2015/02/Email-Statistics-Re-port-2015-2019-Executive-Summary.pdf (last visited April 22, 2016).

12. Id.13. Andrew Perrin, Social Media Usage, 2005-2015, Pew Research Center,

October 8, 2015, http://www.pewinternet.org/2015/10/08/social-network-ing-usage-2005-2015/ (last visited April 22, 2016).

14. Monica Anderson, Technology Device Ownership 2015, Pew Research Cen-ter, October 29, 2015, http://www.pewinternet.org/2015/10/29/technolo-gy-device-ownership-2015/ (last visited April 22, 2016).

15. Aaron Smith, US Smartphone Use in 2015, Pew Research Center, April 2, 2015, http://www.pewinternet.org/2015/04/01/us-smartphone-use-in-2015/ (last visited April 22, 2016).

16. Anderson, supra note 14.17. Shira A. Scheindlin et al., Electronic Discovery and Digital Evidence: Cases

and Materials (2d ed. 2012).18. Stephanie W. Pugsley, eDiscovery: It’s Time to Drop the “E,” 27 Utah B.J. 14,

14 ( July-Aug. 2014).19. Sally Kane, Breaking Into E-Discovery, Law Practice Today ( Jan. 2012)

(“According to a 2011 survey by The C wen Group, a legal technology staffing m, 30% of fi ms are adding e‐discovery attorneys.”).

20. Pugsley, supra note 18, at 14.21. McCarroll, supra note 7, at 81. 22. “While lawyers do not need to become computer specialists, they must

understand computer science and how it is to be applied from discov-ery through trial. Lawyers fail to do so at their peril, and at the risk of damaging the clients they represent.” Jay E. Grenig et al., 1 eDiscovery and Digital Evidence § 10:7 (March 2016).

23. SCR 3.130 (1.1). Even associating with others, including third party vendors, is not without risk given the ethical constraints to supervise sub-ordinate lawyers and non-lawyers. See SCR 3.130(5.2) (responsibilities of a subordinate lawyer); SCR 3.130(5.3) (responsibilities regarding non-lawyer assistants).

24. ABA Model Rules of Prof ’l Conduct r. 1.1 cmt. 8.25. SCR 3.130(1.1) cmt. 6 (emphasis added). 26. California State Bar Formal Opn. No. 2015–193, at 4 (2015).27. Id. at 3 (emphasis added).28. Counsel may have good reason to agree to handle an ESI matter as a

“paper” case. In doing so, however, best practices would probably involve consulting with, and obtaining approval from, the client as potentially valuable evidence could be overlooked.

29. Michelle Doughtery, The Com liance Role in Litigation Response Planning for E-Discovery: Five Steps Health Care Organizations Should Follow to Develop a Successful Plan and Process, 11 No. 3 J. Health Care Compliance 43 (May-June 2009). When done in-house, prior to retaining outside counsel, the initial evaluation may be known as a “discovery readiness assessment” or a “litigation preparedness survey.” Richard Finkelman & Andrew Teichholz,


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In-Sourcing and Outsourcing E-Discovery, 22 No. 3 Prac. Litigator 13, 15 (May 2011).

30. California State Bar Formal Opn., supra note 26, at 4.31. Craig Ball, What Every Lawyer Should Know About E-Discovery: You Need

To Fully Understand Far More ThanThe Basic , 42 No. 2 Law Prac. 54, 56 (2016).

32. Bob Rohlf & Scott Giordano, The ive Pillars of In-House E-Discovery, 30 No. 10 ACC Docket 40, 42 (Dec. 2012).

33. Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1328-29 (Fed. Cir. 2011). “Spoliation is the destruction or signifi ant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Graff v. Baja Marine Corp., 310 Fed. Appx. 298, 301 (11th Cir. 2009). While Kentucky recognizes the term “spoliation,” it does not recognize a separate tort action as in other jurisdic-tions. Monsanto v. Reed, 950 S.W.2d 811 (Ky. 1997).

34. In Re Delta/Airtran Baggage Fee Antitrust Litigation, 770 F.Supp.2d 1299, 1307 (N.D. Ga. 2011) (citing Managed Care Solutions, Inc. v. Essent Health-care, Inc., 736 F.Supp.2d 1317, 1324–25 (S.D. Fla. 2010)).

35. In Re Kenneth Paul Reisman, Mass. Board of Bar Overseers Public Repri-mand No. 2013-21 (Oct. 2013) (involving counsel’s failure to preserve hard drive for expert review rather than just documents); see also Zubulake v. UBS Warburg LLC 220 F.R.D. 212, 216 (S.D. N.Y. 2003) (defining spoliati n as the “destruction or signifi ant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”).

36. Zubulake, supra note 35 at 212 (determining that though employee’s discrimination claim was not filed until ugust 2001, the duty to preserve arose months earlier when e-mails indicated that employer was aware of possibility of claim).

37. For example, the Court may impose ‘just’ sanctions, including the payment of reasonable expenses, including attorney’s fees, caused by a party’s failure to comply with discovery orders. Fed. R. Civ. P. 37(b)(2); see also Ky. R. Civ. P. 37.02. Moreover, while sanctions involving a court’s inherent powers to regulate the conduct of litigation requires a finding of b d faith, sanctions under some civil rules do not and may include even negligent failures to comply with discovery obligations. See PIC Group, Inc. v. Landcoast Insulation, Inc., 2011 WL 2669144, at *10 (S.D. Miss. 2011) (citing Coane v. Ferrera Pan Candy Co., 898 F.2d 1030, 1032 (5th Cir. 1990)).

38. In re Delta/Airtran Baggage Fee Antitrust Litigation, 2015 WL 4635729, at *8 (N.D. Ga. 2015) (ordering $2.7 million in fees where “discovery misconduct…rendered the court’s attempt to manage this litigation and move it forward toward a resolution on the merits as futile and maddening as Sisyphus’s efforts to roll his boulder to the top of the hill”).

39. Mary Mack et al., Effective Management of Litigation Holds and E-Discovery, 27 No. 4 ACC Docket 36 (May 2009) (“Knowing when a threat is ‘credible’ is ... a subjective matter; there is no one-size-fits-a l answer for every company and the answer will not always be the same for every threat.”). In its simplest form, a litigation or legal hold is a communication “issued as the result of current or reasonably anticipated litigation, audit, government in-vestigation or other such matter that suspends normal disposition or processing of records.” Scheindlin, supra note 17, at 930.

40. See SCR 3.130(4.1) (truthfulness in statements to others); SCR 3.130(3.3) (candor toward the tribunal); SCR 3.130(3.4) (fairness to oppos-ing party and counsel).

41. Scheindlin, supra note 17, at 65.42. 239 F.R.D. 81 (D.N.J. 2006).43. Id. at 99.44. Id. at 102.45. Id. at 104.

46. In some cases, scrubbing can itself raise issues such as when the metadata reveals relevant non-privileged evidence. “On one end of the spectrum, scrubbing metadata is subject to sanctions because it changes the inher-ent qualities of electronic documents. While on the other end, scrubbing metadata from electronic documents is feasible when it is not relevant to the litigation.” Emily Litzinger The Ethi al Dilemma Of Scrubbing Metadata: The athway To A Better Approach, 36 N. Ky. L. Rev. 611, 627-28 (2011).

47. E. King, The Ethics o Mining for Metadata Outside of Formal Discovery, 113 Penn. St. L. Rev. 801, 806 (2009).

48. M. Cohen et al., E-Discovery and Electronic Evidence Update, 42 The dvo-cate (Texas) 1 (Spring 2008).

49. Id.50. Id.51. King, supra note 47, at 830-31. See also ABA Formal Op. 06-442 (2006)

(discussing the ubiquitous nature of metadata and the ethical issues associ-ated with counsel’s search for and use of metadata).

52. SCR 3.130(1.6) (confidentiali y of information).53. Miss. Bar, Ethics Op. No. 259 (2012) (collected formal opinions from 17

states relating to confidentiali y of client information contained within metadata).

54. Id.55. Hopson v. The Ma or and City Council of Baltimore, 232 F.R.D. 228, 233-34

(D. Md. 2005).56. Id. (citing Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d

1414, 1426-27 (3d Cir. 1991) (discussing effectiveness of non-waiver agree-ment as to a third party involved in unrelated litigation)).

57. Ashish S. Joshi, Clawback Agreements in Commercial Litigation, 87-DEC Mich. B.J. 34 (Dec. 2008).

58. See Fed. R. Civ. P. 26(b)(5)(B) (clawback provision of federal rules).59. Steven C. Bennett, E-Discovery Meets the Cloud, 83 N.Y. St. B.J. 45 (May

2011).

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2003718784&pubNum=344&originatingDoc=Icc4fb3f1e40011dbacd6b4db45fd6021&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)





L aw libraries are fi led with the rules that govern our society, thoughtful scholars, conscientious lawyers, some hard work-ing students, and some procrastinating students. In the past,

this required libraries to collect hardbound volumes and loose leafs. Today, the collection is beginning to give way to research platforms fi led with those same, or similar, materials and then some; much of the primary legal documentation is even freely available on the web.

While the physical footprint of the library may be smaller as a result of this transition, the amount of legal information that re-searchers have access to has grown exponentially. We now have more sophisticated tools for manipulating this ocean of digital in-formation, and the services offered by law librarians are evolving along with those tools. This article will review current trends in law libraries.

BUILDING BETTER ROBOTS: NEW TOOLS TO FIND LEGAL INFORMATIONLegal research is now often conducted in online commercial legal research platforms such as Westlaw, Fastcase, or other subject- specific databases where access to the necessary documents and related analysis is often only few clicks away. However, the value of online research platforms lies not only in having quick access to all this information, but also in the new means we have avail-able to find and manipulate it. While indexes, tables of contents, and other key finding aids still exist on the more expensive online research platforms, the ability to search all this data is a powerful addition to research toolkits. And in some cases a tool that was powerful in print has been completely transformed in its online incarnation. Not only can online citators like KeyCite and Shep-ard’s give a quick indication on whether a case is good law, as Shepard’s did in print, but these tools can be used to see a list of


19BENCH & BAR |

every document on the platform that cites back to that case, and can search and manipulate those results through filters in pow-erful ways. These tools are critical to help manage the volume of information now accessible.

Thoughthe transition to online materials and the development of search capabilities have been the major technological advances in legal research of the last 20 years, today new technologies and fields of study are being applied. New and old players in the legal research field are developing innovative tools using data analytics to find specific pieces of information in the ocean in a more cost- efficien manner. For example, the budget legal research platform Fastcase uses an algorithm called Bad Law Bot to determine if one case treats another negatively by looking for pre-specifie terms such as “abrogated” or “overruled.”1 Utilizing an algorithm to make these determinations is cheaper than having human ed-

itors employed by Westlaw and Lexis Advance lay eyes on each case, but it doesn’t yet provide the same nuanced look at cases that KeyCite and Shepard’s do.

Thesecompanies are also figu ing out how to mine all the available documents for patterns to create new products that will appeal to practitioners. Ravel Law, a new case law research platform that relies extensively on various uses of data analytics, has developed a new tool to analyze judges’ opinions. It looks at all the opinions a judge has written and identifies the courts, judges, and cases they cite to most frequently and may find pa ticularly persuasive.2 Thisis excellent data for a lawyer to have at hand when preparing to appear before a particular judge.

In addition to using data analytics to find information more cost efficien y or to find new patterns, research platforms are also providing new ways to view this information.3 Data visualization is the concept of imparting more information in a graphical depic-tion of search results than the simple text-based list we have be-come accustomed to. One implementation of data visualization that might be familiar is the map view of a case’s history that is available on Westlaw or Lexis Advance. A researcher can view a graph where the Y axis represents the court level and each entry in the graph represents a court opinion. Thisgraphical display can make it easier to quickly see the path a case has taken through the court system.

Another example is the visual display that Ravel Law gives after performing a keyword search of cases. In addition to a search re-sult list of case titles, Ravel also presents a graph of those same results with the X and Y axes representing the courts and dates of each opinion, but the graph also utilizes different sizes of shapes and lines to convey additional information. Cases are represented by circles; the larger the circle, the more that case has been cit-ed. The thickness of the lines between case circles represents the depth in which one case is discussing another.4 (Ravel’s case law database may be searched for free, and many instructional videos are provided. The judge analytics mentioned above, however, are subscription-only.) Theidea is to give the researcher a way to hone in on the most important cases on a given legal issue at a glance rather than clicking their way through a search results list.

These trends in developing new tools for manipulating the large volumes of information will probably continue in the near future. In fact, as this article was being finished Lexis Advance announced a new data visualization tool that involves using a color-coded bar to indicate search terms and frequency in its results list.5 More of these types of features can be expected to roll out on legal research platforms as they strive to stay competitive with newcomers in the field

THE BATTLE FOR OPEN ACCESSThe e is a battle for legal information that is gaining in strength, numbers, and noise. On one side, you have traditional powers that



have been the gatekeepers to cases, statutes, and commentary for over a century. A growing band of newcomers have coalesced to generate new ways to make U.S. legal information freely available online. Over the next 15 years this battle will be fought, and we predict that the newcomers will emerge with popular and viable platforms for distributing legal information.

The newcomers ride under the banner of Open Access, which is the publication of works that are “digital, online, free of charge, and free of most copyright and licensing restrictions.”6 This defi-nition squarely fits the potential for the vast majority of legal in-formation. Federal statutes, regulations, and cases are not entitled to copyright protection.7 The Commonwealth of Kentucky has determined that the Constitution, Kentucky Revised States, Ken-tucky Acts, and the Kentucky Administrative Regulations shall be made publically available via a “nonproprietary, nonprofit cooper-ative public computer network” and that cases are not protected by copyright.8 It is true that commercial legal databases add editorial content and an organizational scheme that is proprietary and de-serving of protection. However, advances in artificial intelligence, crowd-sourcing, and data management will allow the Open Ac-cess platforms to not only produce legal information, but to com-pete with the traditional platforms in the realm of usability, orga-nization, and citator tools.

The Open Access proponents have similar genesis stories: big thinkers at large, well-funded, civic-minded institutions. One of the forerunners of the movement is the Legal Information In-stitute (LII) at Cornell Law School, which has been focused on provided Open Access to the law since 1992. Their stated goal is to “ensure that the law remains free and open to everyone, which includes supporting global expansion of the free access to law movement, serving government, empowering citizens, serving the legal profession, and developing web science for the law.”9

Another newcomer deserving of mention is Casetext, which is a free legal research and publishing platform launched in 2013 using $8.8 million in venture capital funds.10 This product uses crowd-sourcing concepts to incentivize users to add editorial con-tent to primary sources of law and build a citator.11 Casetext’s founder Jake Heller, said, “We’re developing technology similar to that of Quora or Reddit, where incentives to contribute are paired with intelligent data science to determine which contributions to highlight.”12

In 2015, the Harvard Law School Library entered the fray with Free the Law, which is focused on making all U.S. case law free-ly accessible on the Internet.13 To complete this project, Harvard teamed up with Ravel Law, which is funding the digitization pro-cess and will make the resulting database publicly available for free searching.14 In arguing for Open Access principles to be applied to legal information, Free The Law appeals to our better nature, in stating, “Our common law—the written decisions issued by our state and federal courts—is not freely accessible online. This lack of access harms justice and equality and stifles innovation in legal services.”15

The n wcomers fi mly believe that right makes might.16

Will the traditional gatekeepers of legal information crumble in the next 15 years? No. Will the threat of viable new entrants shape industry competition?17 Yes.

Westlaw, Lexis Advance, and Bloomberg Law have incumbency advantages in the marketplace, but it is hard to beat the cost of Open Access.18 TheOpen Access movement in legal information will be a disruptive technology that forces rivalry.19 We see the traditional gatekeepers going in two directions: (1) to cater to us-ers with money, they will enhance their search algorithms, practice tools, and secondary source materials and (2) they should create new products that compete at the free or low-cost level.

Notably, the Open Access movement has already taken hold in legal academia. With respect to law reviews, scholars are not sell-ing their product. Thelaw reviews are composed of an unpaid staff that work for a notation on their resume and course credit hours.20 In return for generating content, law professors receive a conve-nient forum to distribute their ideas and help in their tenure pro-cess.21 Thismodel shows the perfect ingredients for Open Access: a well-supported author that is given the room to become an ex-pert on, and write about, a particular subject; a group of publishers that do not have labor costs; and technological tools that allow for the distribution of work free of charge to readers. The best e -ample of this phenomenon can be seen in the 66 law schools that have implemented a Digital Commons platform.22

In the coming years, the battle of Open Access will rage, but in the end, the Internet is of the people, by the people, and for the people.23

THE EVOLUTION OF LAW LIBRARY SERVICESIn addition to changing the way that law libraries collect and house legal materials, the information revolution also led law li-braries to provide new and different services and to redefine—atleast partially—the roles of law librarians. The shift in emphasis from publishing legal materials in print form to electronic format allowed law libraries to collect more information and to house it in less space. Furthermore, the shift allowed law library patrons to access a truly massive amount of legal information within a rela-tively short time period. While these changes enable researchers to overcome easily many of the challenges of print-based legal research, electronic research itself presents many of its own chal-lenges. Law libraries have thus refined their service offerings to take advantage of the utility offered by computers but also to help researchers minimize the new challenges presented by electronic research.

Traditionally, finding relevant precedents and ensuring the con-tinued validity of the precedents found represented the most chal-lenging aspects of legal research. In fact, the difficu y in findingapplicable caselaw and the even greater difficu y in exploring cases’ subsequent treatment during the Early Republic period led directly to the creation of the first citator, an early precursor to Shepard’s Citations.24 Even after the advent of the more compre-hensive Shepard’s Citations and the national reporter and digest system of John B. West, which made comprehensive topical case research possible later in the Nineteenth Century, legal research

21BENCH & BAR |

remained a time-intensive process, under which the main chal-lenge remained finding relevant cases. Law libraries and law li-brarians played key roles in the process. The former housed the massive collections necessary to make comprehensive research possible, and the latter served as guides by recommending treatis-es or showing patrons how to use digests.

Note that neither of the traditional functions disappeared com-pletely with the information revolution, though they did shift a bit. Law libraries still maintain subscriptions to many print legal titles, though print collections have gotten smaller. Furthermore, libraries now also subscribe to a large number of electronic sourc-es; either as more efficien versions of old titles or as new tools altogether. Citators are often an example of the former, while ProQuest’s Legislative Insight serves as an example of the latter. Shepard’s Citations can be used much more efficien y electronical-ly than it can in print. As such, many law libraries have dropped print subscriptions to Shepard’s but maintain a public-access sub-scription to the electronic version of Shepard’s or an alternate ci-tator such as West’s KeyCite. Legislative Insight is a new tool that compiles federal legislative histories and that provides the full text of all documents related to a Public Law’s passage. Similarly to how law libraries still collect print while adding digital content, law librarians still recommend sources to researchers. However, the types of sources have expanded. While many recommenda-tions will still direct researchers to print treatises on point, law

librarians may also now refer researchers to electronic tools as well, if one is best suited for the job.

In addition to the traditional services offered, the information revolution has enabled law libraries to offer additional services, while also mandating that law librarians assume an important new role. Computers and digital publishing allow the easy cre-ation and sharing of information sources. Law libraries have taken advantage of the technological developments to better serve their users. In addition to subscribing to electronic tools such as those described above, law libraries can now use digital technology to share paper-based resources with researchers from afar, either upon request or by creating their own digital collections. However, computers’ removal of many of the entry barriers to publication along with their ability to deliver massive amounts of information with just a few key strokes combine to present legal researchers with a new challenge. While finding an obscure case (and every case that has ever citied it) is much easier in the computer age, researchers now face the opposite problem: too many research results. Rather than spend extra time tracking down cases, then, researchers must now spend extra time eliminating less-relevant cases to try to focus on the most relevant authorities. Furthermore, since anyone with a computer and an internet connection can now publish information to the Web, researchers must now also be vig-ilant in assessing the trustworthiness of information found on the internet. Luckily, law librarians have adapted their roles to assist legal researchers with these tasks.

In addition to their traditional roles as guides, law librarians now also serve as gatekeepers. Individually, law librarians can help legal researchers to narrow their results to sources likely to be useful for solving a given problem. Law librarians can recommend databases, show research-ers how to use the databases’ interfaces, and suggest search queries or filters to use. Law librarians also often assist researchers with seeing the connections between elec-tronic search results and advise on how to use those connections to stay on a relevant path. Beyond helping individual research-ers, however, law librarians as a profession-al collective help to establish standards for providing legal information electronically so that researchers can differentiate be-tween authentic sources and those that are less reliable. For instance, the American Association of Law Libraries is currently assisting the Uniform Law Commission in campaigning to have each state pass a version of the Uniform Electronic Legal Material Act.25

Thus as the tools of legal research have changed, the roles of law libraries and law librarians have adapted, though the end goal of connecting researchers with useful


legal information remains the same. Most law libraries, includ-ing the University of Kentucky Law Library, now offer a blend of traditional print-based services and new computer-based services.

SERVICES OFFERED AT THE UNIVERSITY OF KENTUCKY LAW LIBRARYThe University of Kentucky Law Library welcomes members of the bar to use its collections, both print and electronic. Thelibrary maintains a large number of treatises, form books, and other sec-ondary sources in print, and also keeps both Kentucky and federal primary sources in print. While treatises that are volume sets do not circulate, the library will loan individual titles to members of the bar who set up a free special borrowing account. Furthermore, the library will loan these titles via Inter Library Loan to partici-pating libraries (including public libraries) for individuals outside of Lexington. If a researcher only needs a small portion of a title and has a citation to the relevant portion, it may be possible to scan the portion and send it by email.

In terms of electronic sources, the University of Kentucky Law Library subscribes to a version of LexisNexis accessible to the public (on-site in the library only) that provides searchable cases and statutes from across the country as well as electronic Shepard’s. On-site researchers in the library will also be able to use various other electronic databases to which the library subscribes, includ-ing ProQuest Legislative Insight (discussed above) and HeinOn-line (which provides a comprehensive, searchable collection of law

review and journal articles). And, of course, researchers can use the digital collections created by the University of Kentucky Law Library itself, as discussed earlier in this article.

Reference assistance is also available for researchers wishing to use the University of Kentucky Law Library or its collections. Refer-ence assistance can be conducted in person, over the phone, or via email. The reference desk in the library is staffed M-F, 9 a.m. – 5 p.m. Thereference desk may be reached at (859) 257-8131, or the law librarians may be reached via email at [email protected].

ABOUT THE AUTHORSTINA M. BROOKS joined the UK Law Li-brary faculty in July 2011 as the electronic services librarian. Prior to this position, Pro-fessor Brooks studied history and Spanish at the University of Northern Iowa, one semes-ter of which was spent abroad at the Univer-sity of Ovideo in Spain. Thesummer follow-

ing her first year at the University of Nebraska College of Law she studied international law abroad at the University of Cambridge in the United Kingdom. She then obtained her masters in infor-mation science at the University of Texas’s School of Information while working in the circulation department at the Tarlton Law Library. She began her current position at UK directly after fi -ishing her master’s program in 2011.

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23BENCH & BAR |

FRANKLIN L. RUNGE joined the UK Law Library faculty as the faculty services librar-ian in May 2011. Franklin received a B.A. in political science from Hiram College in 2000, a J.D. from Northeastern University School of Law in 2003, and a M.L.S. from the School of Library and Information Sci-

ence at Indiana University in 2010. Following law school, he clerked for the judges of the Massachusetts Probate and Family Court. After his clerkship, he stayed in Boston and practiced law at Weisman & McIntyre, PC.

BEAU STEENKEN joined the law library fac-ulty at the University of Kentucky in Sep-tember 2010 and serves as the instructional services librarian. He teaches two to four sections of 1L Legal Research a year and also coordinates informal research instruc-tion of various sorts. Before coming to the

University of Kentucky, he managed to collect a B.A., a J.D., and an M.S.I.S. from the University of Texas, as well as an M.A. in history from Texas State University and an LL.M. in public in-ternational law from the University of Nottingham, where he also took up archery.

ENDNOTES1. Deborah Letz, Meet Our Newest Team Member: Bad Law Bot, Fastcase (May

29, 2013), http://www.fastcase.com/badlawbot/.

2. Judge Analytics, Ravel Law (last visited Apr. 27, 2016), https://www.ravel-law.com/product/judges.

3. For many more examples of data visualization on legal research platforms, see Robert Ambrogi, Visual law services are worth a thousand words--and big money, ABA Journal (May 1, 2014), http://www.abajournal.com/magazine/article/visual_law_services_are_worth_a_thousand_words--and_big_mon-ey.

4. Ravel Demo: Data Visualization, Ravel Law (last visited Apr. 27, 2016), https://www.ravellaw.com/learn?modal=videos.data-viz.

5. Robert Ambrogi, LexisNexis Unveils Visualization Map Feature for Case Law Research, Law Sites (Apr. 27, 2016), http://www.lawsitesblog.com/2016/04/lexisnexis-unveils-visualization-feature-case-law-research.html.

6. Peter Suber, Open Access 4 (2012), available at https://mitpress.mit.edu/books/open-access.

7. 17 U.S.C. § 105 (2012). 8. Ky. Rev. Stat. Ann. § 7.500 (West 2010); Ky. Rev. Stat. Ann. § 21A.070

(West 2015).9. Legal Information Institute, About the LII, https://www.law.cornell.edu/

lii/about/about_lii (last visited April 27, 2016). 10. Maya Kosoff, These a e the 25 Hottest Startups in San Francisco, Business

Insider (Mar. 9, 2015, 8:10 AM), http://www.businessinsider.com/25-hot-test-san-francisco-startups-2015-2.

11. Casetext, https://casetext.com (last visited April 27, 2016). 12. Kosoff, supra note 10. 13. Library Innovation Lab, Project: Free The aw, http://librarylab.law.har-

vard.edu/projects/free-the-law (last visited April 27, 2016). 14. Id. 15. Id.16. See Abraham Lincoln, The Cooper Uni n Address (Feb. 27, 1860).17. See Michael E. Porter, The ive Competitive Forces that Shape Strategy, Har-

vard Business Review, Jan. 2008, at 78, 80-82. 18. See id.19. See id. at 79-82.20. Jessica Litman, The Economics o Open Access Law Publishing, 10 Lewis &

Clark L. Rev. 779, 788 (2006).21. Richard A. Danner, Kelly Leong, & Wayne V. Miller, The urham Statement Two Years Later: Open Access in the Law School Journal Environment, 103 Law Libr. J. 39, 42 (2011).22. See bepress, Law School Institutional Reposi-tories, http://digitalcommons.bepress.com/institu-tional-repository-law/ (last visited Apr. 27, 2016). The Open ccess platform at the University of Kentucky is at http://uknowledge.uky.edu. 23. Cf. Abraham Lincoln, The Get ysburg Address (Nov. 19, 1863).24. See Patti Ogden, “Mastering the Lawless Science of Our Law”: A Story of Legal Citation Indexes, 85 Law Libr. J. 1, 2-7 (1993).25. See Electronic Legal Material Act, Uniform Law Commission, http://www.uniformlaws.org/Act.aspx?title=Electronic+Legal+Material+Act (last visited April 29, 2016).

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YOUNG LAWYERS DIVISION

This spring I had the pleasure of speaking at the New Lawyers Pro-gram, along with Kentucky Court

of Appeals Judge Sara Combs. After Judge Combs finished she sat down next to me and leaned over. “I always get so nervous speaking at these.” I responded, “Me too.” I was surprised to hear this from a highly esteemed appellate judge with 36 years of experience and a tenure on the Kentucky Supreme Court.

Later, I had an opportunity to speak with Judge Combs at greater length. She further explained that she was concerned whether what she had to say was still relevant to young lawyers. It was. Thefirsttime I heard Judge Combs speak at the New Lawyers Program was the year I was admitted to practice. Eight incredibly long and incredibly short years go. And what Judge Combs said had the same effect on me eight years later—reminding me how exciting and gratifying it is to be a Kentucky lawyer.

“YOUR LAW DEGREE IS YOUR PASSPORT.” Judge Combs discussed her very interesting and unique path as a lawyer. After graduating from law school, she practiced with Wyatt, Tarrant & Combs, and then moved on to her role as general counsel for Naegele Outdoor Advertising Company. After her husband of three years, Governor Bert T. Combs, died in a flash flood in 1991, Judge Combs opened a solo practice in Stanton, Ky. She told me that she never dreamed that her decision to stay in Stanton and eke

out a solo practice would lead to a public position. She started from scratch and her first case involved a goat in a cemetery.

In 1993 she became the first woman to serve on the Supreme Court of Kentucky. From 1994 through the present she has served on the Kentucky Court of Appeals, including six years as the Chief Judge—also the first woman to serve in that capacity. “YOU ARE NOT STUCK.” Judge Combs was 28 when she decided to go to law school. While contemplating that decision, she lamented the fact that if she did start, she would not graduate until she was 31. However, her father very aptly pointed out to her that in three years she would be 31, whether she went to law school or not.

Regardless of where we happen to be on the road of life, or law, we have choices. Even if we may think we are too old, too young, too inexperienced, too entrenched. Judge Combs reminded the new lawyers that if they do not like what they are doing—they are not stuck. Thoughthe changes made in pursuit of happiness and fulfi lment are usually not easy, they will never be regretted. Judge Combs took a leap of faith when she opened her own practice in Stanton. And she has no regrets about doing so. It was a personal choice—not the most secure, not the most logical, and not one based on what everyone thought she should do. Judge Combs reminded us that the profession of law should serve you and your loved ones—not the other way around. She told us that you have

25BENCH & BAR |

to have faith that if you make the right decisions for the right reasons, it will all work out. “The e is a lot of pressure in the profession to put the law ahead of everything else—pres-sure to believe that is the way to do things. You can leave. You can make personal decisions that are right for you.”

“YOU’VE GOT TO RISK AND RISK GREATLY IF YOU EVER WANT TO AMOUNT TO ANYTHING.” Judge Combs has loved what she has done and has never been bored. However, it hasn’t always been easy. During law school she attended night classes at University of Louisville and taught French and Spanish in Henryville, Ind., during the day. For 3 ½ years she drove 100 miles a day. Because of the law, she met the love her life, Governor Combs. She talked about how life is like an intricate Aztec mosaic. While we are in the midst of it, or standing up close, we may not see the full picture. However, as time gives us distance and perspective, we are able to see how it all fits together so beautifully.

Former Governor Brereton Jones called Judge Combs in May 1993, and told her there would be a vacancy on the Kentucky Supreme Court. Judge Combs started giving him names of women in Eastern Kentucky she respected and thought would be good candidates. His response, “Well, what’s wrong with you.” Judge Combs had not expected this. She did not know anything about politics and wasn’t confident in her ability to win an election after her term expired. No one knew her; she was just “that woman from Louisville.” Thenshe remembered what her late husband always said, “You’ve got to risk and risk greatly if you ever want to amount to anything.”

After her appointment she ran for election, and lost. She was disappointed, and was sur-prised when Governor Jones called her to congratulate her. “But I lost,” she told him. He responded, “Not nearly as much as we all thought you would.” When an opening came up for the Kentucky Court of Appeals, Judge Combs initially said no thanks, she was done with politics. But then she once again decided to take a risk, ran, and won by 73 precent.

I encourage you to risk greatly, make the tough right choices, and use your passport. Young lawyers, if you are interested in connecting with other attorneys and finding more ways to use your passport, please visit our website (kbayld.org), like us on Facebook, and follow us on Twitter. TheYLD has nine different committees that sponsor over 20 programs, serving Kentucky’s lawyers, law students, and community. I leave you with a final quote from Judge Combs. “Everybody leaves footprints. Thequestion is what kind do you leave. As attorneys we have the opportunity to leave giant footprints for the good.”

2016-2017 YOUNG LAWYER DIVISION OFFICERS: Chair Rebecca Schafer, Chair-Elect Eric Weihe, Secretary Treasurer Zachary Horn and Vice-Chair Jenna Overmann.

A group of former Young Lawyer Division chairs gathered during the YLD Luncheon at the 2016 KBA Annual Convention held in Louisville this past May.

T H E 2016 - 2017K E NT U C K Y B A RA S S O C I AT I O N

Y L D E X E C U T I V E C O M M IT T E E :

O F F I C E R S:J. Tanner Watkins

Immediate Past Chair

Rebecca SchaferChair

Eric WeiheChair-Elect

Jenna OvermannVice-Chair

Zachary HornSecretary Treasurer

D I S T R I CTR E P R E S E NTAT I V E S:

1st District Rep Jenny Marie Hines

2nd District Rep John Wathen

3rd District Rep Brandon Adcock

4th District Rep Kate Ward

5th District Rep Stephanie Wurdock

6th District Rep Megan Mersch

7th District Rep Miranda Click

AT L A R G E M E M B E R S:

Fayette County Bar Association Representative

Timothy Wiseman

Louisville Bar AssociationRepresentative

Coy Travis

National Bar AssociationRepresentative

Adrienne Henderson

Northern Kentucky Bar Association Representative

Derrick Reeder

Warren County Bar Association Representative

Ashley Gerughty

Roula Allouch Jonathan Hall Megan Keane Lauren Marley David Noble

Elizabeth Reeder Jessica Beauchamp

Brandon Johnson Sarah McKenna

Teresa McMahan Lee Metzger Jack Phillips Joey Wright


and the high school students both learned a lot from each other over the course of the semester.”

In December, the organization held elections to establish an exec-utive board. Theelected board members then drafted and approved

a constitution and provided training to certify 30 student teachers. With strengths, diver-sity and law class variation in mind, student teachers were paired off to complement each other in the classroom. After modernizing problems contained in each lesson, student teachers gave trial presentations to coordi-nators and volunteer attorneys who provided valuable feedback and direction.

“I’ve watched multiple presentations and I always enjoy seeing the different teaching approach each student takes,” said Th mas Wall, former Outreach Coordinator for StreetLaw, who served as a liaison between the high schools and the organization.

UK Law students successfully taught 20 lessons last semester, 10 at each of the two participating high schools, with 10 to 12 students at each lesson. At the end of the 10-week period, each participating high school student was presented with a certif-icate at an awards celebration in recognition of their accomplishment.

“Both schools were immensely appreciative of our cause and the College of Law showed a tremendous outpouring of support,” said Wall. “Our goal was to make a small difference, but the impact this unforgettable experience had on us as law students was profound.”

“It was very humbling to see the volunteer time committed by the law students, and especially Prof. Lollar, and the attorneys Ms. Ross and Ms. Perdue,” said Ismaila Ceesay, former president of StreetLaw. “Thebest part of this program was engaging with these talented and intelligent high school students. Amazing. I feel confident that our country’s future is bright when I envision these young people in future leadership roles.”

Looking ahead, the organization is planning to continue the ini-tiative, with the hope of someday adding a third high school into the program.

COLUMNS

During the spring semester, UK Law students lived and breathed StreetLaw – a brand-new student organization at the University of Kentucky College of Law dedicated

to teaching high school students and members of the Lexington community about law and the legal system.

Working under the supervision of faculty advisor Cortney Lollar, assistant professor of law at UK College of Law, and local attor-neys Carmen Ross and Lindsay Perdue, UK Law students utilized their legal education to teach real-life lessons in law and government to high school students, empowering them to go forward and make positive changes in the community, while also inspiring them to consider a future legal career. Lessons taught include criminal and civil law, employment law, housing law and family law.

Theidea for StreetLaw at UK came from the national non-profit organization that began in 1972, when a small group of Georgetown University Law Center students developed an experimental curriculum to teach District of Columbia high school students about basic legal principals. It was the vision of Prof. Lollar to establish one at UK Law and use the program to make a difference in the Lex-ington community.

Following Prof. Lollar’s initial announcement of StreetLaw at UK, 60 law students quickly jumped at the idea to join. Thismeant that UK Law could place students in more than one high school. Bryan Station High School and Martin Luther King, Jr. Academy of Excellence agreed to be host schools.

“I was overwhelmed by the law students’ level of interest and commitment to starting a StreetLaw program. A number of students invested signifi ant time, energy, and hard work to get this program off the ground in a very short period of time,” Prof. Lollar observed. “Of course, we also could not have had such a successful program without the incredible assistance of our part-nership schools – Martin Luther King Academy and Bryan Station High School. Theadministrations at both schools recognized the value of the StreetLaw program for their students, and were willing to provide both their students and our students the opportunity to further their education in a very hands-on way. The law students

StreetLaw Former President Ismaila Ceesay being interviewed by WKYT.

UK LAW STUDENTSMAKE A PROFOUND IMPACTT E A C H P R A CT I C A L L AW L E S S O N S AT LO C A L H I G H S C H O O L S

Bryan Station High School student Quinten Floyd receiving a certifi ate of recognition from Daniel P. Murphy, Jr., UK Law’s Assistant Dean of Admin-istration and Community Engagement.

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COLUMNS

For many visitors to Washington, D.C., a good trip includes a tour of the Capitol, a day at the Air and Space Museum, and a panoramic view from the Washington Monument.

For 16 Salmon P. Chase College of Law students, a great trip included a meeting with Senate Majority Leader Mitch McCo-nnell to hear his analysis of election year politics, talking with the named plaintiff in litigation that preceded a landmark decision by the Supreme Court of the United States, and hearing government lawyers explain what life can be like after law school.

The students went to Washington this spring in Chase’s Wash-ington, D.C., “Study Away” program, designed to help them see how legislation, regulation, and litigation become the black-letter law they read in casebooks. What some of them discovered is that the case law they come to know on a last-name-only basis is also a chronicle of how society frames itself through people such as those they met, people such as McConnell and Kris Perry.

Perry went to court in 2009 to challenge a California ballot ini-tiative that would have prohibited same-sex marriage. The case, which began as Perry v. Schwarzenegger and was styled as Holling-sworth v. Perry when it reached the Supreme Court of the United States, opened the way for same-sex marriage in California two years before the Court in 2015 decided in Obergefell v. Hodges that same-sex couples have a constitutional right to marry.

TheChase students talked with Perry, who moved from California and is executive director of a Washington, D.C.,-based advocacy group for early childhood education, within sight of the Supreme Court Building. Thejustices’ decision there on standing in the case she initiated opened the way for courts to set aside California vot-ers’ Proposition 8.

“Being able to meet with a named plaintiff in the Proposition 8 case was a great experience,” Chase 1L Stephanie Brockman says. “Her non-lawyer perspective of the legal system and how it works gave us insights that we don’t always think about as we make our way through law school.”

For Chase 1L Heather Herald, the timing of the trip to meet with Kentucky U.S. Senators McConnell and Rand Paul, and Kentucky and Ohio U.S. Representatives Th mas Massie, John Yarmuth, and Steve Chabot added a contemporary perspective.

“I think it was great that we happened to be in D.C. during an elec-tion year. Hearing what Senator McCon-nell and Representatives Massie, Chabot, Yarmuth, and (former Representative Geoff ) Davis had to say about the Trump/Clinton election was really interesting,” she says.

Thereality of Washington politics played into some students’ broadened under-standings of:

• How things work in Congress: “Being exposed to how lobbyists, members of Congress, and congressional staffers work to pass legislation was fascinat-ing. Hearing from the lawmakers and

the people who try to influence them was eye-opening.” –Ashton France, 1L

• What lobbyists do: “I previously spent some time working for a member of Congress on the Hill. It was interesting watching my law school colleagues talk to lobbyists. At firstthere was a real hesitation, but that hesitation quickly grew to admiration, as lobbyists are influential with respect to helping elected official and their staffs understand intricate issues.” –Michael McQueary, 1L

• The Washington, D.C., culture: “The e are so many differ-ent opinions and outlooks on positions and policies. Even if there are differing opinions, that does not mean working to-gether is impossible. D.C. is also about whom you know and what the person knows about you.” –Kate Buffing n, 1L

In addition to talking with legislators and a plaintiff in a case some students had read, the trip allowed participants to envision them-selves in government. Discussions with lawyers at the Department of Housing and Urban Development, Equal Employment Oppor-tunity Commission, Judge Advocate General, and other agencies helped them understand what careers might look like for them.

“Meeting with JAG lawyers at the Pentagon and with the EEOC lawyers at the agency’s headquarters helped me realize there are many career paths available to lawyers,” 1L Astarre Gudino says.

With the 10-day program of meetings and tours concluded, the students still have work to do. Th y must write a 20-page analy-sis based on their experiences. For 3L Lisa Schreihart, sitting in the House gallery and hearing four Congresswomen speak on the Equal Pay Act in a nearly empty chamber decided her topic.

“The women announced that they would speak on those issues every month, because it’s still necessary to do so. I wholeheartedly agree. I’m going to do my independent study paper on the Equal Pay Act.”

Salmon P. Chase College of Law students and Northern Kentucky University students gather during the Chase Washington, D.C., Study Away program for a photo with U.S. Rep. Steve Chabot, R-Ohio, third from left, who graduated from Chase in 1978.


Here at the Louis D. Brandeis School of Law, we’ve been thinking a lot about the American Bar Association’s (ABA) new standards for measuring how well students are learn-

ing.

Thesefour newly adopted standards require law schools to identi-fy what students can expect to learn and do upon completing their law school education.

Let’s explore each of the standards as outlined by the ABA. We’ll also provide insight on how Brandeis Law has made progress on each standard.

STANDARD 301: OBJECTIVES OF PROGRAMOF LEGAL EDUCATION

a. A law school shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and respon-sible participation as members of the legal profession.

b. A law school shall establish and publish learning outcomes designed to achieve these objectives.

Identifying learning outcomes is the first step in a circular process of instructional design method known as “backwards design.”

Thisfirst step requires identifying what law schools want students to learn and then working backwards to develop methods that assist in this learning.

All law schools must adopt specifi ally identified outcomes; how-ever, the standards also allow each law school to develop and de-sign additional outcomes that reflect their schools’ missions. TheABA has identified several learning outcomes, so law schools should only identify one or two additional learning outcomes ini-tially.

In April 2016, Brandeis Law identified client counseling and col-

laboration as required skills in the 1L Lawyering Skills course. Known as the “Brandeis Skills,” these skills are the first portion of a multi-part graduation requirement. Students must practice the Brandeis Skills orally or in writing and will receive individualized feedback.

STANDARD 302: LEARNING OUTCOMESA law school shall establish learning outcomes that shall, at a mini-mum, include competency in the following:

a. Knowledge and understanding of substantive and pro-cedural law;

b. Legal analysis and reasoning, legal research, problem- solving, and written and oral communication in the le-gal context;

c. Exercise of proper professional and ethical responsibili-ties to clients and the legal system; and

d. Other professional skills needed for competent and eth-ical participation as a member of the legal profession.

We asked Brandeis Law faculty members to complete a detailed questionnaire for each course they teach. Thequestionnaire listed various skills in fairly specific detail. We created the list of poten-tial skills from recent task force studies and reports that identifiedmultiple skills law schools should consider teaching their students.

This information lead to the formation of the Brandeis Skills re-quired in the 1L year outlined above. Skills proposals for the 2L and 3L years will also draw from this information and will be submitted for approval next fall.

STANDARD 314: ASSESSMENT OF STUDENT LEARNINGA law school shall utilize both formative and summative assessment methods in its curriculum to measure and improve student learning and provide meaningful feedback to students.

BY: DEAN SUSAN DUNCAN

COLUMNS

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Formative assessments measure performance during a course, while summative assessments measure performance at the end of a course.

TheABA allows for either or both types of assessments to be used by law schools, but formative assessments better assist student learning because of their ongoing nature.

Law professors have traditionally used summative assessments in the form of final exams, but many students don’t perform well using this “all or nothing” approach, which also doesn’t allow stu-dents to learn from their errors or apply instructors’ feedback.

Many Brandeis professors have already been using formative as-sessments, and most classes here now have a mid-term exam in addition to final exams and p ojects.

For example, Professor Jamie Abrams offers several opportunities for feedback during her family law class, with group and individ-ual work being reviewed throughout the semester. She also offers her students practice bar exam questions. And Professor Timothy Hall has implemented “clickers,” through which students answer weekly multiple choice questions using interactive technology.

STANDARD 315: EVALUATION OF PROGRAM OF LEGAL EDUCATION, LEARNING OUTCOMES, AND

ASSESSMENT METHODSThe dean and the faculty of a law school shall con-duct ongoing evaluation of the law school ’s program of legal education, learning outcomes, and assessment methods; and shall use the results of this evaluation to determine the degree of student attainment of compe-tency in the learning outcomes and to make appropri-ate changes to improve the curriculum.

The standard allows for the use of both indirect and direct forms of assessment.

Indirect assessments measure students’ opinions on their learning, while direct assessments mea-sure performance.

Indirect evidence often involves self-reports through surveys or interviews seeking input from graduates, supervisors and employers. Thistype of anecdotal information is valuable but should be combined with direct assessments of the degree of mastery of learning outcomes.

Direct assessments come from a systematic review of projects, papers or performances that show competency in the identified skills and knowl-edge.

Brandeis is constantly working to examine, ana-lyze and improve its methods of teaching.

In preparation for the ABA’s upcoming site vis-it, we’re carefully monitoring the progress we’ve made in our strategic plan. Our faculty spends signifi ant time reviewing the data collected from student, graduate and employer surveys to mea-sure our progress.

We also track data such as bar passage rates, stu-dent retention and individual learning outcomes. This information lets us know how we’re do-ing and offers areas where we can build on our strengths.

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For the three of us who began law school last fall, the greatest lesson we learned about legal writing wasn’t taught in a class-room or written in a book. It was conveyed to us at One First

Street, home of the United States Supreme Court, by one of the most important writers to ever publish in the U.S. Reports: Justice Anthony Kennedy. Although it’s true that many of us had heard how important our writing was—and even seen our grades par-tially reflect our writing skills—the lesson we learned from Justice Kennedy showed us that legal writing can be even more import-ant, and more powerful, than we had ever imagined.

Thestory of that lesson begins not in Washington, D.C., but back at Brandeis, at the start of the school year. Idealistic and bright-eyed, many of us were confident we would hit a home run. We read the “law school prep” books, talked to all of the law students we had ever known, and bought wholesale quantities of coffee and highlighters. But, in a flash the semester was over. It blew by so fast we didn’t even see it. Did four months really just pass by? Had we really survived that first “cold call”? Was all of it—the prepa-ration for our first finals the pressure of finishing those exams on time, and the relief that came with the semester’s last “time’s up” —actually over? And what had been the point?

Then before we could even catch our breath, at the end of the semester, 32 of us traveled to Washington D.C. with a packed itinerary. To start our day, we sat down for an hour-long private meeting with Justice Anthony Kennedy, our professor’s former boss. Then Supreme Court Clerk Marisa Maleck, led us on a be-hind-the-scenes tour of the Court. We later toured the Capitol and met with Utah Senator Mike Lee. Several of us ended the day by meeting with Senator Mitch McConnell’s Chief Counsel, Daniel Cameron, a 2011 Brandeis School of Law graduate. Fi-nally, a group of students went on to tour the West Wing of the White House. It’s easy to lose sight of what’s really important in law school. The e is a lot of talk of class rank, employment projections, and GPA. It’s easy to forget why you wanted to be a lawyer in the first place. The e is no better reminder, though, of why we sign up for the three years of essay questions, minute legal details, and the intri-cacies of complex theorems, than touring buildings where history is made, meeting those making it, and standing in the presence of one of the ultimate arbiters of law in the nation.

In his welcoming, grandfather-like demeanor, Justice Kenne-dy told us a story. He explained that after Texas v. Johnson, 491 U.S. 397 (1989), when the Court protected the First Amendment right to burn a fla , there was a huge uproar from the public. Th y

couldn’t understand, perhaps because they had not bothered to read any of the opinions in the case, why protecting the right to burn a flag is important to the freedom that the flag stands for. Justice Kennedy joked that it seemed like President Bush took the week off, after the decision, to tour flag factories. And not long after that, a man approached Justice Kennedy in a restaurant and said his father, a World War II vet, had told him he should be ashamed to be a lawyer. In response, the man decided to give his father a copy of Justice Kennedy’s concurrence in the case. When the father handed the concurrence back to his son, he had a new view of the case. “Son,” he said, “you should be proud to be a lawyer.”

What was it about the Justice’s words on that issue that convinced this aging patriot that setting the flag of the country aflame was protected under the Constitution? The Court’s majority opinion was technically sound and explained the mechanics of the legal reasoning. But Justice Kennedy’s concurrence explained in basic, blunt terms the “hard fact” that “sometimes we must make deci-sions we do not like.” Id. at 420 (Kennedy, J., concurring). Thatsimple sentence clearly articulated to anyone, regardless of edu-cation or training, the inherent tensions involved in respecting freedom of speech. It is among the phrases that resonated with a member of a generation that clearly understood making decisions that may not be easy—a generation for whom little was easy. Thatshort anecdote, and the conversation that followed, demonstrated that good legal writing should do more than cleverly reiterate le-galistic mechanics. It should inform in ways that illuminate, per-suade, and inspire.

Authors, historians, and politicians, claim that the pen is might-ier than the sword. Justice Kennedy’s lesson illustrated to us that our pen is our sword. What we write has the power to influenc . It might one day change the law. Perhaps more importantly, it can change people’s minds. Without shaking anyone’s hand, with-out knowing any student’s political affiliat n, or even our names, Justice Kennedy reminded us that being a lawyer isn’t about the money you make, the power you have, or the section of the plane you sit in. Being a lawyer, at its most fundamental core, is about using language to create the world that you want to see—to make a positive difference for people.

We were treated to a lot of amazing things in D.C., but what we will always remember is the pride we felt leaving our meeting with Justice Anthony Kennedy. We get to be lawyers someday. We study and aspire to write in ways that can change minds. And we wouldn’t have it any other way.

BY A.J. BESIK, CHELSEA DERMODY, DEVON SKEENS, AND JUSTIN WALKER

BRANDEIS STUDENTS MEET WITH JUSTICE KENNEDY, VISIT D.C.

EFFECTIVE LEGAL WRITING

31BENCH & BAR |

A.J. BESIK CHELSEADERMODY

DEVONSKEENS

JUSTINWALKER

ABOUT THE AUTHORSA.J. BESIK, CHELSEA DERMODY, and DEVON SKEENS will soon begin their second year of law school at the University of Louisville’s Brandeis School of Law. JUSTIN WALKER clerked for Justice Anthony Kennedy and Judge Brett Kavanaugh, and he teaches legal writing at Brandeis.


SHOP TALK

F un with social media continues to evolve for lawyers, judges, police and clients. I am still nonplused to read defendants’ Facebook postings listed as overt acts in drug conspiracies.

But it’s not just those crazy kids we need to worry about as to these new ways of information sharing, and investigation. Our in-experience, lack of knowledge, and unmediated habits with these media can inadvertently run afoul of both common courtesies and our rules of information management – the rules of profession-al and judicial conduct. Then there are the constantly mutating features of the technology, which can make what is one day safe conduct into the next day’s mistrial.

Guidance is evolving, slowly, via the rules of conduct and ethics opinions. The National Center for State Courts (NCSC), which monitors this as to judges, noted at the end of 2015 New Mex-ico and West Virginia became the first jurisdictions to explicitly discuss social media use in their judicial conduct codes. Advising heightened care in using social media, these reflected the risk of not fully understanding the scope and reach of technologies de-signed to expand the scope and reach of social activity. Indeed, the thought of “abuse of prestige of offi ” would not have occurred to me when “liking” a restaurant, but the NCSC opined it carried real risk.

Back to the Internet-

Suggestions from Our

Colleagues on Using

Social Media Safely

BY MICHAEL LOSAVIO

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This carries over to concerns about juror conduct in the age of always-on texting and posting. Pending legislation in California would permit fines of up to $1,500.00 of jurors for improper use of social media and the Internet relating to their trial. Thoughharsh, it reflects the wasted resources where social media/Internet misconduct led to a mistrial or reversal.

TheNew York State Bar Association’s section on commercial and federal litigation tackled this by tasking its social media commit-tee to draft social media guidelines for lawyers. Thoughpurely ad-visory, they offer an early warning system for potential problems.And the scope of such problems is broad, so the guidelines discuss the impact on:

1. attorney competence;2. attorney advertising;3. furnishing legal advice through social media;4. review and use of evidence from social media;5. communicating with clients;6. researching jurors and reporting juror misconduct; 7. using social media to communicate with a judicial offic .

Who knew?

And that’s why these guidelines are helpful: they help us look be-fore we inadvertently leap.

The guidelines place a duty of competence in the use of social media within all of the subsequent areas of practice, from use in case investigation to communicating with clients. Which requires an understanding of how the technologies work, what they do and keeping current on changes. Some of those risks are discussed be-low. But given the ubiquity of social media use by lawyers, clients, witnesses, opposing parties, jurors and judges, we need to have some knowledge of them or access to that expertise. Children and grandchildren may help, but that may not be enough...

“Advertising,” depending on the jurisdiction, may mean anything with your name on it, subject to exceptions; the regulatory fo-cus is on its interaction with the solicitation rules subject to the First Amendment rights of lawyers and need for protection of the public. The guidelines suggest that purely personal activity would not be subject to those rules, but advises compliance and caution with a business related site or “hybrid” activity. Baroque by itself, this becomes more complicated with highly interactive sites where third parties may post comments. If the site is nominally controlled by the lawyer, the lawyer may be responsible for what-ever is posted, especially “endorsements.” Some jurisdictions may hold the lawyer responsible for third party postings about them on third party sites. While this may or may not conflict with federal law, who wants to be the test case?

Furnishing legal advice through social media, establishing possible attorney-client relationships (intended or not), and retention of communications represent another area of risk. Thecasual nature of social media makes it easy to slip up, so extra caution is advised.

Use of social media evidence is more and more important to liti-gation, with its own risks. Theguidelines opine that viewing pub-licly available social media is acceptable, but delving into restricted areas requires full candor and disclosure by the attorney, or her agent, as to the purpose of the request to examine. And if of an opposing party permission of opposing counsel is required.

Communicating with clients has its own risks. The obvious are those associated with confidentiali y of communications. If to be confidential take it off of social media unless you are POSITIVE it is a secure channel. So reading the user agreement is essential; you might be surprised at the right to monitor your communica-tions in some social media services. But properly used, controlled sites might be helpful in case management, such as those with multiple parties or stakeholders. Less obvious is advising clients about their own social media use and duty to preserve electronic media in anticipation of litigation and how the lawyer may use social media evidence provided by the client. Given the risks, this is an area where clear, detailed explanation of these issues in a retainer letter might avoid later accusations of spoliation and ob-struction of justice.

Lastly, care with jurors and judges is needed. It is acceptable to do social media research on potential or sitting jurors, as long as no deceit is involved, but not to communicate with them. As some social media sites notify when a site is reviewed by someone, this might constitute such a communication. Or make the juror wonder why one of the attorneys was checking out that juror’s information. And if juror misconduct is found, it must be reported to the court regardless of benefit or detriment to the lawyer’s case. This is a serious matter which may subject jurors in violation of social media use prohibitions during trial to severe sanction.

Judges are people, too, just like lawyers. So ex parte communica-tions are prohibited. But things happen. As mentioned above, sev-eral states now have added specific language to their codes of judi-cial conduct to note that social media communications are subject to the rules as with any other communication. Though it would seem self-evident, problems still crop up given the lack of tradi-tion. So be careful. And don’t complain about the judge online!

Again, this is just advice from other lawyers trying to help their brethren through the new tech world, the new information polity. But it is good advice, and another example of the excellence of our profession that we try to help each other before there’s trouble.

The Guidelines are available at:www.nysba.org/socialmediaguidelines

In Memento Mori - We observe the passing of another great ju-rist, Judge Boyce Martin of the Jefferson Circuit Court and the U.S. Court of Appeals for the Sixth Circuit. On Oct. 27, 1974, the Courier-Journal wrote he possessed the “innate fairness, temperament, experience, and training necessary to become an outstanding circuit judge.” And so he was.


BAR NEWS

summary of minutes kba board ofGOVERNORS MEETING

M A R C H 1 8 , 2 0 1 6

In Regular Session, the Board of Governors conducted the fol-lowing business:

• Heard a status report from the Committee on Child Protection & Domestic Violence, Military Law Committee, Rules Committee, Task Force on Proper Compensation of Prosecutors and Public Defenders and Workers’ Compensation Section.

• Past President and Strategic Planning Commit-tee Chair W. Douglas Myers reviewed the planning process and development of the 2016-2018 Strategic Plan.

• Past President W. Douglas Myers addressed the Board with regard to the 2016 Legislature and funding of the KLEO program.

• Director of Accounting/Membership Michele Po-grotsky and CLE Director Mary Beth Cutter pre-sented a report on the status of the 2016 Annual Convention registration information and the CLE programming.

• President Douglass Farnsley reported that the Pres-ident’s Special Service Award would be presented to Dean Susan Duncan at the UofL Brandeis School of Law Alumni Reception on Wednesday, May 11th.

• KYLAP Director Yvette Hourigan, along with KYLAP Commission Chair Pete Gullett, made a pre-sentation regarding the outcome of the recent study done by Hazelden/Betty Ford and the ABA Com-mission on Lawyer Assistance Programs focusing on lawyer addiction rates and mental health concerns.

• LMICK Executive Vice President and CEO Pete Gullett reported on the history of LMICK as well as provided an update on their success and products.

• Kentucky Bar Foundation and IOLTA Executive Di-

The Board of Governors met on Friday, March 18, 2016. Officer and Bar Governors in attendance were, President D. Farnsley; President-Elect M. Sullivan; Vice President W. Garmer; Immediate Past President W. Johnson, Young Lawyers Division Chair T. Watkins and Incoming YLD Chair R. Schafer. Bar Governors 1st District – M. Pitman; Bar Governors 2nd District – T. Kerrick, J.

Meyer; 3rd District – M. Dalton, H. Mann; 5th District – E. O’Brien; 6th District – G. Sergent; S. Smith and 7th District – M. McGuire. Bar Governors M. Barfield A. Cubbage, F. Schrock, B. Simpson and J. Vincent were absent.

In Executive Session, the Board considered three (3) default disciplinary cases and two (2) restoration cases. Judy Campbell of Frankfort, Brenda Hart of Louisville, Dottye Moore of Elizabethtown and Dr. Leon Mooneyhan of Shelbyville non-lawyer members serving on the Board pursuant to SCR 3.375, participated in the deliberations.

rector Amelia Adams made a presentation regarding the activities of the Foundation and the IOLTA Fund.

• Approved the following appointments to the Ken-tucky Bar Foundation: 1st Supreme Court District – Cirris E.C.B. Hatfield of Murray and W. Douglas Myers of Hopkinsville; 2nd Supreme Court District – Scott D. Laufenberg of Bowling Green and Susan C. Montalvo-Gesser of Owensboro and reappointed for three year terms ending on June 30, 2019: 3rd Supreme Court District – Sarah Hay Knight of Somerset; 5th Supreme Court District – Allison J. Donovan of Lex-ington and Sadhna G. True of Lexington.

• Approved the submission of three nominees to the Supreme Court of Kentucky for appointment of one person from each District to the IOLTA Board of Trustees for a three year term ending on June 30, 2019: 1st Supreme Court District - Jack N. Lackey, Jr., of Hopkinsville, Richard E. Peyton of Madisonville and J. Christopher McNeill of Paducah; 2nd Supreme Court District – Ryan C. Reed of Bowling Green, John W. Stevenson of Owensboro and Stephen D. Gray of Henderson and in the 6th Supreme Court District – John G. “Spike” Wright of Warsaw, Su-zanne Cassidy of Crestview Hills and Paul J. Dick-man of Covington.

• President-Elect R. Michael Sullivan advised that the summer meeting would be held in Owensboro on July 21-23, 2016, at the Hampton Inn & Suites and the Owensboro Convention Center.

• Young Lawyers Division (YLD) Chair J. Tanner Wat-kins reported on the following activities of the Divi-sion: overseeing the March Bench & Bar issue, U@18, Bully Proof and the Legal Feeding Frenzy. Watkins also reported that this year YLD will be celebrating its 50th Anniversary and will have a major involvement in

35BENCH & BAR |

that there are substantial improvements to the Bar Center being considered including several restroom renovations, carpet and paint on the first flo .

• Approved the new proposed Attorneys’ Advertising Commission (AAC) Regulations with regard to the new attorney advertising rules submitted by the AAC Task Force which were discussed during the 2015 Rules Hearing and adopted by the Supreme Court.

• Approved the amendments to the LGBT Law Sec-tion Bylaws.

• Director of Administration Melissa Blackwell re-ported that the Supreme Court approved the FY 2016-2017 Budget.

• Blackwell gave an update on the IT project.

TO KBA MEMBERSDo you have a matter to discuss with the KBA’s Board of

Governors? Board meetings are scheduled on

September 16-17, 2016November 18-19, 2016

To schedule a time on the Board’s agenda at one of these meetings, please contact John Meyers or

Melissa Blackwell at (502) 564-3795.

the Annual Convention sponsoring Featured Speaker Ari Shapiro, CLE programming, reception in con-junction with the Bench & Bar Reception and the annual luncheon where they will present their awards.

• Approved the waiving the 2016 convention registra-tion fees for the Supreme Court, Court of Appeals and AOC staff atto neys.

• Approved the following appointment and reappoint- ments to the Attorneys’ Advertising Commission: appointed Steve D. Wilson of Owensboro for a three year term ending on June 30, 2019; reappointed Rhonda Hatfield-Je ers of Somerset and John Simms of Lexington to another three year term ending on June 30, 2019. Also reappointed Kerry D. Smith of Paducah as chair for one year expiring on June 30, 2017.

• Approved the submission of three nominees to the Supreme Court of Kentucky for appointment for one person from each District to the CLE Commis-sion for three year terms ending on June 30, 2019: 2nd Supreme Court District - Frank “Hamp” Moore III of Bowling Green, Rebecca A. Simpson of Bowl-ing Green and Matthew C. “Matt” Tierney of Ow-ensboro; 3rd Supreme Court District – Graham C. Trimble of Corbin, Heidi S. Powers of Somerset and Sandra J. Reeves of Corbin and 4th Supreme Court District – J. Tanner Watkins of Louisville, Kellie E. Brown of Prospect and Danielle J. Lewis of Louisville.

• Approved the following appoint-ment and reappointment of the Clients’ Security Fund Board of Trustees: appointed Mary Ann Stewart of Covington to a three year term ending on June 30, 2019, and reappointed lay member Rog-er Rolfes of Florence to a second three year term ending on June 30, 2019.

• President Farnsley reported that in an effort to strengthen the involve-ment of the KBA committees and sections with the Board, as well as increase accountability, representa-tives from the various committees and sections will make presenta-tions at the Board meetings.

• President Farnsley reported that a committee has been appointed to help make the board room library more meaningful. Contacts have been made with Filson Historical Society in Louisville about obtain-ing items on loan. He also reported


BOOK REVIEW

A fici nados of courts’ opinions will welcome a recent addition to the sparse catalogue of books on judicial writing. Legal writing expert Ross Guberman’s earlier book, Point Made:

How to Write Like the Nation’s Top Advocates, provided engaging examples and tips about brief writing. In Point Taken, Guberman has turned his scrutiny to judges’ writing. He scoured opinions from the United States and English courts to illustrate his guide-lines with colorful examples by such prominent judges as Louis Brandeis, Frank Easterbrook, Ruth Bader Ginsburg, John Roberts, and Diane Wood.

Thebook begins by covering the main sections of an opinion—the opening, the statement of facts, and the analysis. Thebook then offers tips about writing style and ends by discussing dissents.

To open an opinion, Guberman offers several techniques. One is to start with a “teaser opening” like Lord Denning’s in Cummings v. Granger: “Thisis the case of the barmaid who was badly bitten by a big dog.” Another is to start with a “detailed and unresolved” open-ing, as Judge D.P. Marshall did in the North Little Rock School District case. He began, “Reasonable people of good will disagree about the wisdom and efficacy of charter schools,” and then pre-sented a more detailed explanation of the case.

Guberman covers the facts section in a chapter titled “TheTale.” The e, he urges the writer to “cut clutter” and emphasize the facts that are most important to the decision. To illustrate, he points to Supreme Court death penalty cases in the 1970s and 1980s, where justices who voted against death sentences did not mention the defendants’ crimes, while those who voted for death sentences “sometimes sounded like they were writing smut ficti n.”

The chapter called “The Meat” provides six suggestions for the body of an opinion. Among them are to answer the questions of a skeptical reader, to show why the decision should be trusted, and to provide organizational cues that will help the reader follow the reasoning. Transitions should be among those cues, and Guberman pres-ents a helpful list of them for reference. Plentiful examples illustrate the chapter’s suggestions.

The chapter on “style must-haves” includes a blunt suggestion to use “‘impure’ diction.” To illustrate its effectiveness, Guberman

cites Judge Richard Posner, who wrote than when a codefendant drops out during a criminal trial, “a juror would have to be pretty stupid not to surmise that he had pleaded guilty.” Other stylistic suggestions are to use short sentence openers—even the sometimes shunned yet perfectly correct “and” and “but”—and evocative verbs, like “the statute bristles with severities” or “divvying us up by race.” Thebook’s list of “zinger verbs” is a helpful reference on this topic.

Guberman also suggests including some stylistic “nice-to-haves,” such as metaphors, literary references, and rhetorical devices. Although these can liven up a dry subject, he counsels that “less is more”—they should perhaps be limited to “a single burst of creativity.” Thelayout of the book is inviting. Theexamples and their sources are clearly delineated through text boxes and boldface type. And each chapter ends with a succinct list of practice pointers that can serve as a quick reference.

Point Taken is every bit as engaging and helpful as Guberman’s ear-lier book. I recommend it as a go-to reference for the bookshelves of judges, their law clerks, and others who write case opinions.

ABOUT THE AUTHORJUDITH D. FISCHER is a professor emeritus at the University of Louisville’s Brandeis School of Law. Her scholarly interests include legal writing and advocacy. Her book Pleasing the Court examines ethical and effective legal writing through numerous examples of courts’ reactions to lawyers’ errors.

B O O K R E V I E W B Y J U D I T H D . F I S C H E R :

POINT TAKEN: HOW TO WRITE LIKE THE WORLD’S BEST JUDGES

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BAR NEWS

The Kentucky Bar Association (KBA) strives to add additional features and content to the website as we hear from our members. Now being rolled out are new features giving you the options to add language(s) and areas of practice to your online KBA member profile! The in ormation you provide will be searchable in the Lawyer Locator.

FOR MORE INFORMATION, PLEASE SEE BELOW.

K B A M E M B E R S UPDATE YOUR

MEMBER PROFILE NOW!BY MACHELL SMITH, KBA STAFF ATTORNEY ACCOUNTING/MEMBERSHIP

LANGUAGE(S)Are you fluent in any other languages besides English? Would you like to provide legal services to people who utilize that particular language and have limited or no English proficien y? If so, add your spoken language(s) and/or sign language credentials to your public member profil . We do not independently verify your language skills; however, when you add a language to your profil , you are affirming that you personally possess the neces-sary language skills in the selected language to work and interact with speakers of that specific langua e group.

AREA(S) OF PRACTICEDo you want to communicate to the public that you practice particular fields of law? Now you can by in-dicating your areas of practice on your public member profil . When you update your profile by selecting an area of practice, you are indicating a willingness to ac-cept cases in that particular field Many attorneys have more than one area of practice, so you may select all that apply. Please note that the Kentucky Bar Association does not certify specialties in legal fields pursuant to SCR 3.130(7.40).

STAND OUT ON YOUR KBA MEMBER PROFILE!

Thesenew features will allow you to create a more per-sonalized profile that is more than just your fi m name and contact information. In addition to the Lawyer Locator, information you provide on your profile may be located by using search engines like Google, Yahoo!, Bing, etc. Updating your profile is as simple as logging in to the website, selecting Edit Bio under Manage Pro-fil , and then submitting your changes. Don’t miss out on this opportunity—update your profile tod y!

LAWYER LOCATOR NEW SEARCH FIELDS

In an effort to help address the public need to locate a particular Kentucky licensed attorney, language(s) and area(s) of practice search fields have been added to the Lawyer Locator on the website. The Lawyer Locator is an online search tool that is frequently used to search the membership database for Kentucky licensed attor-neys as it has been accessed over 160,000 times since the launch of the new KBA website in April 2015.

IF YOU HAVE ANY QUESTIONS OR COMMENTS, PLEASE CONTACT THE KBA AT (502) 564-3795.


COMMONWEALTH OF KENTUCKYJUDICIAL CONDUCT COMMISSION

IN RE THE MATTER OF

HON. SHEILA A. COLLINS, DISTRICT JUDGE30TH JUDICIAL DISTRICT

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

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

I STATEMENT OF CHARGESThe Judicial Conduct Commission of the Commonwealth of Kentucky was created for the purpose of, and is vested with the jurisdiction to, initiate, hear and decide charges of officia miscon-duct by any judge of the Court of Justice or lawyer while a candidate for judicial offi , and upon a finding of such officia misconduct, to impose sanctions pursuant to SCR 4.020. In furtherance of this authority and purpose, the Commission filed charges of judicial misconduct against Judge Sheila A. Collins, District Judge 30th Judicial District, on January 11, 2016 and filed Amended Charges of Judicial Misconduct on March 16, 2016. (Notice of Formal Proceedings and Charges dated January 11, 2016 and Amended Notice of Formal Proceedings and Charges dated March 16, 2016 are attached hereto and incorporated herein by reference).

II PROCEEDINGS1. TheRespondent, Sheila A. Collins is a District Judge for

the 30th Judicial District consisting of Jefferson County, Kentucky.

2. The Commission authorized an investigation into the allegations after receipt of a media report.

3. TheRespondent was informed of the investigation and appeared with Counsel, Hon. Stephen Ryan, before the Commission on October 23, 2015. TheRespondent was provided the factual information in the custody of the Commission for examination, pursuant to SCR 4.170(4) and was afforded an opportunity to present any other information bearing on the investigation. The Respon-dent did not provide additional information bearing on the Commission’s investigation.

4. Notice of Formal Proceedings and Charges were filedagainst the Respondent on January 11, 2016 under Su-preme Court Rule 4.180.

5. An Answer to the Notice of Formal Proceedings and Charges was filed by the Respondent by her Counsel on January 29, 2016.

6. An Entry of Appearance by Co-Counsel for the Re-spondent, Honorable Martin E. Johnstone was filed on February 1, 2016.

7. A Notice of Time and Place for Hearing was sent to the Respondent on February 17, 2016, setting the Hearing for April 19, 2016 at 9:00 a.m. in the Jefferson County Judicial Center, Tenth Floor, Appellate Courtroom 700 West Jefferson Street, Louisville, Kentucky 40202.

8. An Amended Notice of Formal Proceedings and Charges

was filed against the Respondent on March 16, 2016 under Supreme Court Rule 4.180.

9. An Answer to the Amended Notice of Formal Proceed-ings and Charges was filed by the Respondent through her Counsel on March 29, 2016.

10. On March 29, 2016 the Respondent filed a Motion to Dismiss and a Motion to Produce as well as Interroga-tories and Requests for Admissions.

11. On April 11, 2016 the Commission entered an Order overruling the Motion to Dismiss and denying the var-ious requests for discovery.

12. On April 13, 2016 the Respondent through her Coun-sel, filed a Motion to Reconsider, a Motion to Strike the Response of the Commission’s Counsel, and a Motion to Compel Discovery.

13. On April 19, 2016 the Respondent appeared for the Formal Hearing with Counsel Honorable Stephen Ryan and Honorable Martin Johnstone at which time the Respondent testified in her own behalf and offered other evidence.

14. TheseMotions were overruled by the Commission and the notation of same is found in the officia transcript of the proceedings as these Motions were overruled by the Commission the morning of the Hearing.

15. At the beginning of the Hearing on April 19, 2016 Counsel for the Commission requested that the rule be invoked for the removal of witnesses from the Court-room and said Motion was sustained.

16. The (fi e) voting members of the Commission in this case are as follows: Hon. Stephen D. Wolnitzek, Judge Janet Stumbo, Judge Eddy Coleman, Judge Karen Th mas, and Diane E. Logsdon. Citizen member Joyce King Jennings was ill and unable to participate. In at-tendance during the hearing were alternate members Judge Jeff S. Taylor and Hon. R. Kent Westberry. Thealternate members did not participate in the Commis-sion vote in this matter. Judge David P. Bowles recused from any consideration of this case.

17. At the conclusion of the presentation of evidence and summation by Counsel for the Respondent and Coun-sel for the Commission it was announced that the Hear- ing was concluded and appropriate Findings of Fact, Conclusions of Law and a Final Order would be en-tered in due course.

III FINDINGS OF FACT AND CONCLUSIONS OF LAWTheJudicial Conduct Commission unanimously concludes that the following Findings of Fact and Conclusions of Law have been established by clear and convincing evidence.

CHARGE On June 11, 2015 at approximately 1:09 p.m. the Respondent pre-sided over a Bond Reduction Hearing in Commonwealth v. Lomac Jeter, Case No. 15-M-9629. In that case, Mr. Jeter was charged with assault in the 4th degree (domestic violence) for allegedly assault-ing Jasmine Stone. During the Bond Reduction Hearing, Ms. Stone recanted the allegations against Mr. Jeter. Upon hearing her

JUDICIAL CONDUCT COMM.

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recantation the Respondent immediately ordered a Deputy Sheriff to take Ms. Stone into custody. The Respondent further directed the Prosecutor to charge Ms. Stone with making false statements and set a $10,000 cash bond. Thisaction was taken over objection from the prosecution.

At approximately 2:10 p.m. that same day the Prosecutor formally asked the Respondent to release Ms. Stone from custody based upon information that Mr. Jeter had contacted Ms. Stone and pressured her to recant. TheProsecutor further indicated that the prosecution did not intend to proceed against Ms. Stone for making false statements. Despite this information, the Respondent refused to lower the bond or release Ms. Stone from custody. A Writ of Habeas Corpus was filed on behalf of Ms. Stone shortly thereafter, which was denied by the Circuit Court but the bond was vacated in that Order and Ms. Stone was released from custody later that afternoon.

As a result, the Respondent was charged with violating SCR 4.020(1)(b)(i), misconduct in offi . In addition the Respondent was charged with violation of SCR 4.300 and the relevant portions of the following Canons of the Code of Judicial Conduct:

Canon 1 which requires Judges to maintain high standards of con-duct and uphold the integrity and independence of the Judiciary.

By a vote of 5-0, the Commission finds that the Respondent Sheila A. Collins did not violate Canon 1 and therefore the Charge as it pertains to Canon 1 is dismissed.

It was further charged that the actions of the Respondent violated Canon 2A which requires Judges to respect and comply with the law and to act at all times in a manner that promotes public confi-dence in the integrity and impartiality of the Judiciary.

By a vote of 5-0, the Commission finds with respect to this Canon that the Respondent violated Canon 2A and is therefore guilty of misconduct under SCR 4.020(1)(b)(i).

It was further charged that the actions of the Respondent violated Canon 3B(4) which requires Judges to be dignified and courteous to litigants, jurors, witnesses, lawyers and others which whom the Judge deals in an officia capacity.

By a vote of 5-0, the Commission finds with respect to this Canon that the Respondent did not violate Canon 3B(4) and therefore the charge as to Canon 3B(4) is dismissed.

It was further charged that the actions of the Respondent violated Canon 3B(8) which requires Judges to dispose of a matter, promptly, efficien y, and fairly.

By a vote of 5-0, the Commission finds with respect to this Canon that the Respondent violated Canon 3B(8) and is therefore guilty of misconduct under SCR 4.020(1)(b)(i) in that the Respondent failed to dispose of a matter fairly.

ORDERTheRespondent has been found guilty of misconduct by violat-ing Canons 2A and 3B(4) of the Code of Judicial Conduct. Th Respondent failed to afford a witness before her with rudimen-tary due process rights before questioning her and then ordering a Deputy Sheriff to immediately take her in to custody and charge her with a criminal offense. Thenafter being the complaining witness in the matter the Respondent set bond for the person she had just ordered arrested. Bond is to be set by a detached Magistrate, not one who orchestrated the filing of the criminal charge in the first place.

While the Respondent admits that she made a mistake, she argues that it was not made in bad faith as the Respondent reasons that she could have placed this lady in jail for contempt of Court.

It is the considered opinion of the Commission that the Respon-dent has misread the Supreme Court Case of Gormley v. Judicial Conduct Commission, 332 S.W.3d 717 (Ky. 2010).

Nothing that this witness stated could in any way be considered direct criminal contempt of Court. By the Respondent’s own testimony and as seen from the video tape of this encounter, the Respondent acknowledged she did not know what was true and a hearing needed to be conducted with the presence of a police offic who was on the scene in order for the truth to be determined. If the Respondent needed a hearing in order to determine the truth then in no way could the witness who was questioned by the Court without being advised of her right against self-incrimination and without being afforded counsel be considered to be in direct crim-inal contempt of the Court or any Order it entered. Thewitness may well have committed false swearing, but that does not provide a Court with the ability to punish such a person for direct criminal contempt.

TheRespondent should never have directed the Sheriff to take this witness into custody and to charge the witness with a crime. Thatis not the role of the Judiciary. That is the role of the duly elected prosecutorial authorities in Jefferson County. Even when advised by the prosecutor that no charges would be pursued against this witness, the Respondent still refused to release her from custody.

At the Hearing various witnesses testified on behalf of the Respon-dent as to her good character and reputation. In addition, the Commission received by stipulation a large number of Affidavi from practicing lawyers and others in the Jefferson County com-munity extolling the Respondent’s abilities and fairness as a District Judge for many years. In determining the appropriate discipline, the Commission took this into consideration.

For the foregoing violations, the Commission concludes that a public reprimand is warranted in this case and by a vote of 4-1, the Respondent Sheila A. Collins, District Judge 30th Judicial District is publicly reprimanded. One member of the Commission would have provided only a private reprimand as the appropriate discipline.

Rule 4.270 provides that the Commission’s Order shall become effective within Ten (10) days after service, unless an appeal is file within that time.


I hereby certify that the Findings of Fact, Conclusions of aw and Final Order represent an action of the Judicial Conduction Com-mission this 21st day of April, 2016.

_____________/s/_______________ STEPHEN D. WOLNITZEK CHAIR OF THE COMMISSION

CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing was served upon Judge Sheila A. Collins, Jefferson District Court Judge, by mailing same to her attorneys, Stephen P. Ryan, 7104 Hillcircle Court, Louisville, KY 40214, and Martin E. Johnstone, 6300 Hunting Harbor Road, Prospect, KY 40059; and upon Jeff ey C. Mando and Louis D. Kelly, 40 West Pike Street, Covington, KY 41011, this 21st day of April, 2016.

____________/s/________________ JIMMY A. SHAFFER EXECUTIVE SECRETARY


IN RE THE MATTER OF:

SHEILA A. COLLINS, DISTRICT COURT JUDGE30TH JUDICIAL CIRCUIT

NOTICE OF FORMAL PROCEEDINGS AND CHARGESNotice is hereby given of the initiation of formal proceedings under Rule 4.180 of Rules of the Supreme Court. At the times set out in this Notice, you were District Court Judge for Kentucky’s 30th Judicial Circuit located in Jefferson County. Thecharges are as follows:

On June 11, 2015, you presided over a bond reduction hearing in Commonwealth v. Lomac Jeter, Case No. 15-M-9629. In that case, Mr. Jeter was charged with Assault in the 4th Degree (Domestic Violence) for allegedly assaulting Jasmine Stone. During the bond reduction hearing Ms. Stone recanted the allegations and claimed that Mr. Jeter did not assault her. Upon hearing her recantation you became upset and ordered the sheriff to take Ms. Stone into custody, demanded he charge Ms. Stone with False Swearing and ordered that she be remanded to jail and set a $10,000.00 cash bond. This was done despite protests from both the public advocate and the prosecutor. Your actions violated Ms. Stone’s due process rights inasmuch as you took her into custody without holding a hearing, without advising her of her rights prior to questioning, and without appointing an attorney to represent her. You later refused to lower the bond even upon learning that Mr. Jeter had contacted Ms. Stone and pressured her to recant.

Your actions violate SCR 4.020(1)(b)(i) and constitute misconduct in office. Furthermore, your actions violate SCR 4.300 and the relevant portions of the following Canons of the Code of Judicial Conduct:

Canon 1 which requires judges to maintain high standards of con-duct and uphold the integrity and independence of the judiciary.

Canon 2A which requires judges to respect and comply with the law and act at all times in a manner that promotes public confidenc in the integrity and impartiality of the judiciary.

Canon 3B(4) which requires judges to be dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an officia capacity.

Canon 3B(8) which requires a judge to dispose of a matter promptly, efficien y, and fairly.

Thejurisdiction of the Judicial Conduct Commission in this matter is under SCR 4.020(1)(b)(i) and (v), and (1)(c) which read in per-tinent part as follows:

(1) Commission shall have authority:(b) To impose the sanctions separately or collectively of (1)

admonition, private reprimand, public reprimand or cen-sure; (2) suspension without pay or removal or retirement from judicial offi , upon any judge of the Court of Justice or lawyer while a candidate for judicial office, who after notice and hearing the Commission finds guilty of any one or more of the following:(i) Misconduct in offi .(v) Violation of the code of Judicial Conduct, Rule 4.300.

(c) After notice and hearing to remove a judge whom it find to lack the constitutional statutory qualifi ations for the judgeship in question.

For your information, the Commission wishes to call your attention to the following Supreme Court Rule:

RULE 4.180 FORMAL PROCEEDINGSIf the Commission concludes that formal proceedings should be initiated, it shall notify the judge. He may file an answer within 15 days after service of the notice. Upon the filing of his answer, or the expiration of time for so filin , the Commission shall set a time and place for the hearing and shall give reasonable notice thereof to the judge.

Please mail your answer to: Ms. Jimmy Shaffer, Executive Secretary, Kentucky Judicial Conduct Commission, P.O. Box 4266, Frankfort, Kentucky 40604-4266.

January 11, 2016 _____________/s/_______________ STEPHEN D. WOLNITZEK, CHAIR

I hereby certify that copy hereof was served on Sheila A. Collins, Jefferson District Court Judge, by mailing same to her attorney, Hon. Stephen P. Ryan, 7104 Hillcircle Court, Louisville, KY 40214 this 11th day of January, 2016.

_____________/s/_______________ JIMMY SHAFFER, EXECUTIVE SECRETARY

JUDICIAL CONDUCT COMM.

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IN RE THE MATTER OF:

SHEILA A. COLLINS, DISTRICT COURT JUDGE30TH JUDICIAL CIRCUIT

AMENDED NOTICE OF FORMAL PROCEEDINGS AND CHARGES

Pursuant to SCR 4.190, notice is hereby given of the initiation of formal proceedings under Rule 4.180 of Rules of the Supreme Court. At the times set out in this Notice, you were District Court Judge for Kentucky’s 30th Judicial Circuit located in Jefferson County. Thecharges are as follows:

On June 11, 2015, at approximately 1:09pm you presided over a bond reduction hearing in Commonwealth v. Lomac Jeter, Case No. 15-M-9629. In that case, Mr. Jeter was charged with Assault in the 4th Degree (Domestic Violence) for allegedly assaulting Jasmine Stone. During the bond reduction hearing Ms. Stone recanted the allegations against Mr. Jeter. Upon hearing her recantation you became upset and immediately ordered the deputy sheriff to take Ms. Stone into custody. You further directed the prosecu-tor to charge Ms. Stone with making false statements and set a $10,000.00 cash bond. Thisaction was made over objections from the prosecution.

At approximately 2:01pm that same day the prosecutor formally asked you to release Ms. Stone from custody based upon informa-tion that Mr. Jeter had contacted Ms. Stone and pressured her to recant. Theprosecutor further indicated that she did not intend to prosecute Ms. Stone for making false statements. Despite this information you refused to lower the bond or release Ms. Stone from custody. A video recording of the hearings in question are attached as Exhibit A.

Your actions violate SCR 4.020(1)(b)(i) and constitute misconduct in office. Furthermore, your actions violate SCR 4.300 and the relevant portions of the following Canons of the Code of Judicial Conduct:

Canon 1 which requires judges to maintain high standards of con-duct and uphold the integrity and independence of the judiciary.

Canon 2A which requires judges to respect and comply with the law and act at all times in a manner that promotes public confidenc in the integrity and impartiality of the judiciary.

Canon 3B(4) which requires judges to be dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an officia capacity.

Canon 3B(8) which requires a judge to dispose of a matter promptly, efficien y, and fairly.

Thejurisdiction of the Judicial Conduct Commission in this matter is under SCR 4.020(1)(b)(i) and (v), and (1)(c) which read in per-tinent part as follows:

(1) Commission shall have authority:(b) To impose the sanctions separately or collectively of (1)

admonition, private reprimand, public reprimand or cen-sure; (2) suspension without pay or removal or retirement from judicial offi , upon any judge of the Court of Justice or lawyer while a candidate for judicial office, who after notice and hearing the Commission finds guilty of any one or more of the following:

(i) Misconduct in offi .

(v) Violation of the code of Judicial Conduct, Rule 4.300.

(c) After notice and hearing to remove a judge whom it find to lack the constitutional statutory qualifi ations for the judgeship in question.

For your information, the Commission wishes to call your attention to the following Supreme Court Rule:

RULE 4.180 FORMAL PROCEEDINGSIf the Commission concludes that formal proceedings should be initiated, it shall notify the judge. He may file an answer within 15 days after service of the notice. Upon the filing of his answer, or the expiration of time for so filin , the Commission shall set a time and place for the hearing and shall give reasonable notice thereof to the judge.

Please mail your answer to: Ms. Jimmy Shaffer, Executive Secretary, Kentucky Judicial Conduct Commission, P.O. Box 4266, Frankfort, Kentucky 40604-4266.

March 16, 2016 _____________/s/_______________

STEPHEN D. WOLNITZEK, CHAIR

I hereby certify that copy hereof was served on Sheila A. Collins, Jefferson District Court Judge, by mailing same to her attorneys, Hon. Stephen P. Ryan, 7104 Hillcircle Court, Louisville, KY 40214, and Martin E. Johnstone, 6300 Hunting Harbor Road, Prospect, KY 40059, this 16th day of March, 2016.

_____________/s/_______________ JIMMY SHAFFER, EXECUTIVE SECRETARY


KBF / IOLTA

The mission of the Kentucky Bar Foundation (KBF) is to further the public’s understanding of the judicial system and legal profession through programs and philanthropic

partnerships that help those in need. One way that the KBF serves this mission is by awarding annual grants to law-related organiza-tions and projects across the Commonwealth. On May 12, 2016, the KBF awarded a record-high $262,688 in total grants to 24 nonprofits working to provide access to justice and legal education for Kentuckians.

Bluegrass Rape Crisis Center, Statewide – $7,500 for Impact Kentucky: A Campus Collaborative to Uproot Sexual Violence. BRCC will host the Impact Kentucky conference over three days in fall 2016. Students and staff from all Kentucky colleges will participate in curriculum development and attend the conference to maximize dialogue between administrators and students with the goal of creating a more open and transparent campus. Discus-sion topics will include legal rights and responsibilities of students and administrators when dealing with issues of sexual violence.

Children’s Law Center (CLC), Statewide – $40,000 for Ken-tucky Juvenile Justice Jeopardy: Understanding Rights & Pos-itive Interactions with Law Enforcement. CLC will work with nationally-recognized Strategies for Youth to develop a Ken-tucky-specific version of Juvenile Justice Jeopardy ( JJJ). It will be an innovative, youth-oriented presentation to educate, train, and empower youth to make positive and productive decisions when dealing with law enforcement. JJJ focuses on behaviors, teaching students how to interact with officer respectfully and in a way that avoids confrontation and unnecessary arrests. CLC estimates that JJJ will serve 1,000 Kentucky students ages 12 – 18 within the first 12 months of the program, focusing on areas of the state with the highest concentration of juveniles interacting with police.

Chrysalis House, Inc., Statewide – $15,000 for Accessing the Court System & Resolving Legal Issues for Chrysalis House Women. Chrysalis House will assist clients with addressing un-met legal needs to enhance their employment potential. Clients will also have opportunities to participate in mock interviews and work with employers who have agreed to hire felons.

Governor’s Scholars Program Foundation, Statewide – $8,000 for Governor’s Scholars Program Political & Legal Issues Fo-cus Area. GSP is a summer program for rising high school seniors that serves 1,000 students from all Kentucky counties annually. It strives to enhance Kentucky’s next generation of civic and eco-nomic leaders by providing a strong liberal arts program with a

Awards 2016 Grants Totalingk e n t u c k y b a r f o u n d a t i o n

$262,688full co-curricular and residential life experience. This grant will support the GSP Political & Legal Issues Focus Area at Northern Kentucky University, which is akin to a college major for partici-pating students.

TheInternational Center, Western Kentucky – $17,500 for New Life Project: Preventing Violence & Supporting Survivors in the Refugee & Immigrant Communities through Education, Legal Assistance, & Job Readiness. Thisgrant supports the Cen-ter’s efforts to provide legal representation to low-income immi-grants who are victims of domestic violence, religious persecution, or ethnic cleansing, as well as wholly-disabled refugees needing guardianship. It will also provide education on legal topics such as immigration and workplace and/or housing discrimination, in addition to job training for legal immigrants and refugees.

Kentucky Association of Food Banks, Inc., Statewide – $2,500 for Legal Food Frenzy: A Hunger Relief Campaign. The inau-gural Legal Food Frenzy will be presented in 2017 by the KBA Young Lawyers Division, in partnership with KAFB and the Ken-tucky Attorney General’s Offi , as a contest among lawyers to collect food and funds for hunger relief across Kentucky.

Kentucky Coalition Against Domestic Violence, Statewide – $34,000 for Interpersonal Protective Orders (IPOs): Kentucky’s New Tool to Protect Survivors of Dating Violence, Stalking, & Sexual Assault. KCADV will present 25-30 trainings with the University of Kentucky Offic for Policy Studies on Violence Against Women to provide education about KRS Chapter 456, which recently created the IPO. Five regional trainings will be conducted throughout the state, and at least half of the total train-ings will target schools and colleges.

Kentucky Equal Justice Center, Statewide – $10,000 for Max-well Street Legal Clinic: Dispelling Myths, Reuniting Fami-lies. Thisgrant will provide legal and educational services to fam-ilies working to understand the lawful immigration process and those seeking to be reunited with family members still in other countries. Services will include providing initial phone screening to potential clients, monthly onsite “Beyond Triage” informational sessions, individual consultation and screening, full case assistance with family-based petitions, and community presentations.

Kentucky Guardianship Association, Inc., Statewide – $5,000 for Guardianship Training Video. Grant funds will support the development of a professional, 30-minute video and a related manual providing a summary of Kentucky adult guardianship law.

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Kentucky Refugee Ministries, Inc., Central & Northern Kentucky – $10,000 for Immi- gration Legal Services Fee Subsidies for the Most Vulnerable Refugees & Immi-grants. Grant funds will support legal ser-vices to assist refugees who need to file pe-titions to adjust their immigration status to permanent residency or file a refugee/asylee relative petition to be reunited with their spouse or unmarried children under age 21. Services will also support immigrant chil-dren eligible to receive green cards due to abuse, neglect, or abandonment.

Mission Behind Bars & Beyond, State-wide – $10,500 for Mentor Coordinator & Trainer for Volunteers Working with Returning Citizens. MBBB will train mentors to work with “returning citizens” as they are released from incarceration after serving their sentences. Mentors will pro-vide support and accountability to returning citizens with a goal of decreasing the potential for recidivism as they adjust back to public society.

Nursing Home Ombudsman Agency of the Bluegrass Inc. (NHOAB), Statewide – $7,510 for Protecting Kentucky’s Res-idents from Financial Exploitation: A Manual for Long-Term Care Facilities. NHOAB will develop a guide about how manag-ers of long-term care facilities can prevent, recognize, record, and report financial exploitation of their elderly residents. Grant funds will also provide in-service training for staff at fi e facilities, one resident council, one family council, and one group of community healthcare and social service professionals. Additionally, NHOAB will train 30 ombudsmen how to provide further training at 100 regional facilities.

Purchase Area Sexual Assault & Child Advocacy Center, West-ern Kentucky – $1,395 for Educating Victims & their Families on Legal & Family Resources. Victims of abuse are presented with lots of information when they come forward, which can be overwhelming while trying to cope with trauma. Th ough this grant, the Center will develop a single brochure what will educate abuse victims and their families about available resources and pro-tections and will provide space for them to track their investiga-tor’s name, prosecutor’s information, and court dates.

Restorative Justice Louisville Inc., Jefferson County – $10,000 for Family Group Conferencing. Conferencing uses a trained facilitator to guide a conversation among victims, offenders, law enforcement, and community members to allow participants to develop their own solutions to address harm done. Grant funds will be used to process and facilitate pre-adjudicated cases referred from the juvenile justice system.

S.O.C.K.S. (Saving Our Children Keeping them Safe), Inc., Statewide – $3,325 for Kentucky Youth Homelessness Preven- tion Guide: A Legal Rights & Responsibilities Handbook. Grant funds will focus on the often underserved population of

youth aging out of foster care and at an in-creased risk of becoming homeless. S.O.C. K.S. will publish a guide to empower youth and equip them with knowledge and the abil-ity to access services to avoid pitfalls that lead to or exacerbate homelessness, including rights and responsibilities related to housing, emancipation, education, employment, and health care, as well as a directory of state-wide resources.

Sunrise Children’s Services, Statewide – $20,000 for Saving Children & Preserving Families: Expansion into Florence, Lon-don, & Pikeville. Sunrise serves families in crisis by providing services to help keep a child from having to be removed from home. TheSunrise team works with the family and the child to offer support, guidance, and solutions, with the goal of empowering parents/guardians to manage children’s behavioral

and health conditions at home.

Uspiritus, Inc., Statewide – $10,000 for Improving Child Wel-fare & Court Collaboration. Uspiritus provides broad services for at-risk children and families, primarily serving children who need intensive support to overcome trauma. Grant funds will sup-port Uspiritus’ ability to participate in legal proceedings for its clients, estimated at more than 500 per year.

The KBF awarded scholarships of $10,000 each to Kentucky’s three law schools: Louis D. Brandeis School of Law, Salmon P. Chase College of Law, and University of Kentucky College of Law. TheKBF also awarded annual grants in celebration of the re-cipients of the 2016 KBA Distinguished Judge and Distinguished Lawyer Awards: $1,000 to the Legal Aid Society in honor of Judge Benjamin F. Shobe of Louisville (posthumously), $1,000 to Kentucky Legal Aid to be designated for Barren County in hon-or of Judge Benjamin L. Dickinson of Glasgow, and $1,000 to UK College of Law in honor of attorney William E. Johnson of Frankfort. Mr. Johnson chose to award the other $1,000 of his grant funds back to the KBF to support its ongoing efforts, which is a much-appreciated first or the KBF!

In addition to these grants, the KBF also supports annual Kentucky Credit Abuse Resistance Education (CARE) Programs across the state, which allow attorneys and judges to give in-person financialresponsibility training to high school seniors. The KBF provides statewide coordination efforts and CARE educational booklets for thousands of students each year, which amounted to $16,458 of support in 2016.

In total, the KBF awarded $262,688 in 2016 grants, the highest in KBF history. Thesegrants bring the total awarded since 1988 to over $3 million! TheKBF is proud of the efforts of its Board, supporters, and friends who have helped make these impactful grants a possibility. We look forward to working with you in the coming year to reach even greater heights on behalf of Kentucky’s entire legal community!

KBF Past President Frank Hampton Moore, Jr., introduces KBF Secretary/Treasurer Rebekkah Bravo Rechter as she presents a grant check to Dr. Aristófanes Cedeño, Governor’s Scholars Program Ex-ecutive Director, and attorney Tina Nance, GSP Foundation Associate Director.


AWESOME BREASTFORMS

To make a difference in the lives of women touched by cancer, attorney MELISSA R. DIXON volunteers with an organization called Awesome Breastforms to hand knit or crochet cotton breast prostheses for women who have undergone mastectomy or lumpectomy surgery. The forms are much lighter in weight and more comfortable than traditional prostheses, and they are completely free to any woman who requests them. Thevolunteer bears all costs for supplies and postage. Thanksto volunteers like Melissa, this organization has helped more than 2,500 women in 30 countries since it was founded in May 2015. Melissa practices with Gambrel & Wilder Law Office PLLC, which has officein London, Pineville, and Lexington.

KBF / IOLTA

DOINGGOODA T T O R N E Y S

At its heart, the Kentucky Bar Foundation is about attorneys and judges helping others. To celebrate the longstanding tradition of service among members of the Kentucky Bar, the Kentucky Bar Foundation is proud to spotlight these attorneys “doing good” in their communities! For more information about the

Foundation and its charitable work on behalf of Kentucky’s legal community, visit www.kybarfoundation.org.

DOCTORS & LAWYERS FOR KIDS

Attorney HOLLY HOUSTON recently created a unique way to support a nonprofit As part of the Louisville Bar Asso- ciation’s “Lawyers Care” in i t ia t ive (which coincides wi th L ouisv i l l e Mayor Greg Fisch-er’s “Give A Day” week), Holly orga-nized a fundraiser for Doctors & Law- yers for Kids, a medical-legal partnership that helps low-

income families with legal issues that are barriers to healthy living. Theevent was held on April 17th at 8UP Elevated Drinkery & Kitchen in Louisville. Holly served as “guest bartender,” donating all of her tips to Doctors & Lawyers for Kids, along with 8UP’s contribution of $1 for every Kentucky Mule that Holly mixed. In total, $1,000 was raised in an evening! Holly practices with A. Holland Houston Attorneys at Law in Louisville.

Photo is courtesy of the Louisville Bar Association

USE THE HASHTAG #KYATTYSDOINGGOODWHEN POSTING PICTURES OF YOUR COMMUNITYSERVICE PROJECTS ON SOCIAL MEDIA

45BENCH & BAR |

Attorneys IVERSY (IVY) VELEZ and PAUL WHALEN serve together on the Board of Directors of Gateway Community and Technical College (GCTC), and they are pictured working together at a recent Board meeting in Covington. GCTC is northern Kentucky’s only public, accredited, comprehensive two-year college. Offering credits in more than 30 subject areas, GCTC works to prepare students for high-wage, high-demand careers. TheGCTC Board of Directors meets at least six times pear year to guide the College as it continues a tradition of educational excellence. Ivy practices with Shannon D. Sexton, Attorney at Law, PLLC, in Covington. Paul is an attorney with the U.S. Department of Energy.

Photo is courtesy of Gateway Community and Technical College

SUPPORTING EDUCATIONAT GATEWAY COMMUNITYAND TECHNICAL COLLEGE

Attorneys HERBIE MCKEE (pictured), AUSTIN VOWELS, and KYLE EVANS recently presented the U@18 Program to students at Henderson County High School. TheU@18 Program allows young Kentucky attorneys to teach high school seniors about the increased freedom and rights, as well as the higher level of personal responsibility, that come with turning 18. U@18 is pre-sented annually by the KBA Young Lawyers Division, and the Kentucky Bar Foundation has proudly awarded grants totaling $32,500 to support the development of U@18 materials. Herbie and Kyle are Assistant Henderson County Attorneys, and Austin practices with Vowels Law PLC in Henderson.

Photo credit goes to Brittany Ross at SurfKy News

PRESENTING THE U@18 PROGRAM TO HENDERSON

COUNTY HIGH SCHOOL STUDENTS


KYLAP HOSTSLAWYERS IN RECOVERY MEETINGS IN

NORTHERN KENTUCKY AND LEXINGTON

The Kentucky Lawyers Assistance Program offers weekly open recovery meetings for lawyers, law students and judges in Northern Kentucky and Lexington. The North-

ern Kentucky Lawyers in Recovery meeting is held at 5:00 p.m., on Tuesdays at 510 Washington Avenue, Newport, KY 41071. Please bring your own coffee. TheLexington Kentucky Lawyers in Recovery meeting is held at 7:30 a.m. on Wednesdays at the Alano Club downtown, 370 East Second Street, Lexington, KY 40508.

All meetings are open to law students, lawyers and judges who are already involved or who are interested in a 12-step program of recovery, including but not limited to Alcoholics Anonymous, Narcotics Anonymous, Overeaters Anonymous and Al-Anon. Come meet other attorneys and network. All meetings and contacts are confidential. SCR 3.990. For additional information, please visit www.kylap.org, call (502) 564-3795, ext. 266, or email [email protected].

The KYLAP Foundation is a 501 (c)(3) non-profit Kentucky Corporation created and approved pursuant to Supreme Court Rule 3.910(8) to promote the mission of the Kentucky Lawyer Assistance Program (KYLAP). KYLAP's mission is to assist Kentucky's lawyers, law students and judges who suffer from impairments including drug, alcohol, or other addictions, depression, and other

mental health disorders.

The Foundation helps Kentucky's lawyers, law students and judges seek medical and professional treatment for impairment issues when no other financial resources for treatment exist. The Foundation is premised on the same principle as the Kentucky Lawyer Assistance Program—Lawyers Helping Lawyers.

Your tax-deductible contribution provides direct help for suffering lawyers through the extension of (forgivable) loans for treatment (paid directly to the medical providers). All money given by lawyers goes directly to the treatment of lawyers.

For more information on the Kentucky Lawyer Assistance Program Foundation, Inc., please contact KYLAP Director Yvette Hourigan at (502) 564-3795 or at [email protected].

KENTUCKY LAWYER ASSISTANCE PROGRAM FOUNDATION, INC.,

FORGIVABLE LOAN PROGRAM

KYLAP

Waterfront Plaza | 323 West Main Street, Suite 600 | Louisville, KY 40202502.568.6100 | 800.800.6101 | LMICK.com

considered Kentucky home, lawyers throughout the Bluegrass have valued their partnership with Lawyers Mutual. Our 28 years of expertise continues to guide them through the rough terrain and perils of claims prevention and risk management. To better navigate all issues associated

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47BENCH & BAR |

Kentucky Lawyer Assistance Program


CONTINUING LEGAL EDUCATION

The KBA Continuing Legal Education Commission (CLE Commission) held its final meeting of the 2015-16 educa-tional year on May 20th at Serafini Restaurant in Frankfort,

followed by a farewell dinner. While the atmosphere was of fel-lowship and celebration, to say goodbye to three such experienced and knowledgeable colleagues is never easy, nor is it something I celebrate. Matt Cook, of Cole and Morgan in Bowling Green, has represented the Second Supreme Court District for six years. Matt has been an invaluable asset and has agreed to serve as chair of the CLE Planning Committee for the 2017 KBA Annual Conven-tion in Owensboro. With Matt at the helm, we are in for a treat in June 2017! Julie Roberts Gillum of Gillum and Gillum in Somer-set, has represented the Thi d District for two terms and has been both a pleasure to work with and a voice of common sense and reason. Our Chair, Janet Jakubowicz of Bingham, Greenebaum & Doll in Louisville, has represented the Fourth District for two terms and has served as chair for the past two years. Janet is one of those delightful people who makes my job more enjoyable just because I have the good fortune to work with her. Her energy will be greatly missed. These Commissioners have represented their districts and the attorneys of this state with a protective and skill-ful vigor. Th y will be truly missed, and as I always promise, I will continue to call upon them to serve the KBA and the attorneys of Kentucky. The KBA staff and the CLE Commission wish these outgoing Commissioners well and thank them for their outstand-ing service.

CONGRATULATIONS TO MITCH HALLI am pleased to announce that the Supreme Court has named Mitch Hall the new chair of the CLE Commission. Mitch is an attorney with VanAntwerp Attorneys, LLP, in Ashland, and has

served on the CLE Commission since July 1, 2011. Mitch has been a true asset and the CLE Commission is in good hands un-der his direction. Congratulations Mitch!

CLE COMMISSION WELCOMES NEW MEMBERSThe Continuing Legal Education Commission is pleased to an-nounce the Kentucky Supreme Court’s new appointments to the Commission. TheCLE Commission is responsible for the admin-istration and regulation of all continuing legal education activi-ties and programs for the Kentucky Bar Association (KBA). TheKentucky Supreme Court appoints one Commissioner from each Supreme Court District to represent that region’s KBA mem-bers. For the Second Supreme Court District, Frank Hampton Moore III of Bowling Green has been appointed; for the Thi d Supreme Court District, Graham C. Trimble of Corbin has been appointed; and, for the Fourth Supreme Court District, J. Tanner Watkins of Louisville has been appointed. These appointments became effective July 1, 2016.

FRANK HAMPTON MOORE III (“HAMP-TON”) is a native of Bowling Green, and is an attorney with the law fi m Cole & Moore, P.S.C., in Bowling Green. Hamp-ton has been a member of the Kentucky Bar since 2009. He received his under-graduate degree from Transylvania Uni-versity and his Juris Doctorate from the

Appalachian School of Law in 2009. Hampton is admitted to practice before the U.S. Court of Appeals, Sixth Circuit, and the U.S. District Court, Eastern and Western Districts of Kentucky.

CLE Commission member Matt Cook and CLE Commission Chair Janet Jakubowicz were presented with gifts during their last meet-ing which was held in downtown Frankfort in late May.

BY MARY BETH CUTTER, DIRECTOR FOR CLESIGNIFICANT CHANGES

C L E C O M M I S S I O N U N D E R G O E S

49BENCH & BAR |

GRAHAM C. TRIMBLE is a Corbin, Ky., native and operates his law fi m, Trimble Law, PLLC, in Corbin. Trimble received his B.A. in political science from Eastern Kentucky University and his J.D. from Northern Kentucky University’s Salmon P. Chase College of Law. Graham practices family law and personal injury cases, as well as general and business litigation.

TANNER WATKINS is an associate with Dinsmore in Louisville, concentrating his practice primarily in the areas of business and fi-duciary litigation, banking litigation, personal injury, and product liability litigation. Tanner received his B.A. from Centre College, and his J.D., cum laude, from the University of Kentucky College of Law. He is admitted to practice before the U.S. Court of Ap-peals, Sixth and Seventh Circuits, and the U.S. District Court, Eastern and Western Districts of Kentucky and Southern District

of Indiana. Tanner is just finishing his term as chair of the KBA Young Lawyers Division, and in that capacity has served as a member of the Executive Committee of the Board of Governors. Tanner is also very active with the American Bar Association Young Lawyers Division (“ABA YLD”), serving as the Kentucky and Tennessee District Representative, and as a member of the ABA YLD Council and a delegate to the ABA YLD House of Delegates.

THE CLE COMMISSION WELCOMES THESE NEW MEMBERS AND LOOKS FORWARD TO WORKING TOGETHER WITH THEM TO FURTHER THE PROFESSION THROUGH EDUCATION.

Jason F. DarnallFirst District Representative

[email protected]

Frank Hampton Moore IIISecond District [email protected]

Graham C. TrimbleThi d District Representative

[email protected]

J. Tanner WatkinsFourth District [email protected]

Carl N. FrazierFifth District Representativecarl.frazier@SKOfi m.com

David B. SloanSixth District Representative

[email protected]

W. Mitchell Hall, Jr., ChairSeventh District Representative

[email protected]

INTERESTED IN ASSISTING WITH A CLE? HAVE IDEAS

FOR A PROGRAM?

Contact Mary Beth Cutter, KBA Di-rector for CLE at [email protected],

or any member of the Continuing Legal Education Commission.

2016-2017 CLECOMMISSION

MEMBERS

ATTORNEYS for its Louisville and -

ence in civil trial and/or insurance defense litigation. Portable book of business is a plus.

Quintairos, Prieto, Wood & Boyer, P.A.Attorneys at Law

E-mail resume to [email protected]

mailto:[email protected]




Kentucky Bar Association2016 New Lawyer Program

Judge Je�rey M. Walson

Andrew M. Haile, Jr.

Professor William H. Fortune

Douglass Farnsley

Amelia Martin Adams

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

Looking for UpcomingKBA Accredited CLE Events?

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

.snoitacilppa noitatidercca fo gnissecorp rof skeew owt ot pu ekat yam tI .deviecer era yeht hcihw ni redro eht ni dedda dna devorppa era smargorPIf an upcoming or past event is not listed in the database, check with the program sponsor regarding the status of the accreditation application.

Ashleigh N. BaileyAshley L. Chilton

Mary E. Cutter Rebecca R. Schafer

J. Tanner Watkins

Moderators, Speakers and Contributing Authors

to those individuals whose contribution of time and expertise helped make the

THANK YOU

A GREAT SUCCESS!

MAY 2016NEW LAWYERPROGRAM

Carl N. Frazier

Judge Sara W. Combs Megan P. Keane

Howard Fineman

Kentucky Bar Association2016 New Lawyer Program

Judge Je�rey M. Walson

Andrew M. Haile, Jr.

Professor William H. Fortune

Douglass Farnsley

Amelia Martin Adams

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

Looking for UpcomingKBA Accredited CLE Events?

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

.snoitacilppa noitatidercca fo gnissecorp rof skeew owt ot pu ekat yam tI .deviecer era yeht hcihw ni redro eht ni dedda dna devorppa era smargorPIf an upcoming or past event is not listed in the database, check with the program sponsor regarding the status of the accreditation application.

Ashleigh N. BaileyAshley L. Chilton

Mary E. Cutter Rebecca R. Schafer

J. Tanner Watkins

Moderators, Speakers and Contributing Authors

to those individuals whose contribution of time and expertise helped make the

THANK YOU

A GREAT SUCCESS!

MAY 2016NEW LAWYERPROGRAM

Carl N. Frazier

Judge Sara W. Combs Megan P. Keane

Howard Fineman

2016 K E N T U C K Y L A W UP D A T E DATES & LOCATIONSLONDONLONDON COMMUNITY CENTERSeptember 1-2 (TH/F)

BOWLING GREENHOLIDAY INN & SLOAN CONVENTION CENTERSeptember 8-9 (TH/F)

ASHLANDBELLEFONTE HOSPITALSeptember 22-23 (TH/F)

COVINGTONNORTHERN KENTUCKY CONVENTION CENTERSeptember 29-30 (TH/F)

LOUISVILLEKENTUCKY EXPOSITION CENTEROctober 5-6 (W/TH)

PRESTONSBURGJENNY WILEY STATE RESORT PARKOctober 20-21 (TH/F)

GILBERTSVILLEKENTUCKY DAM VILLAGE STATE RESORT PARKOctober 26-27 (W/TH)

OWENSBOROOWENSBORO CONVENTION CENTER November 3-4 (TH/F)

LEXINGTONLEXINGTON CONVENTION CENTERDecember 1-2 (TH/F)

KENTUCKY LAW UPDATE

Advancing the Profession Through Education

2016 MARK YOURCALENDARS!

Theannual Kentucky Law Update (KLU) is just around the corner. TheKLU program series is an exceptional benefit of KBA membership and Kentucky is the only mandatory CLE state that provides its members a way of meeting the annual CLE requirement at no additional cost. Registration is available on our website, http://www.kybar.org/page/KLUDatesandlocations. We look forward to seeing you in the fall!

CONTINUING LEGAL EDUCATION

51BENCH & BAR |

A s a final tribute, the Bench & Bar publishes brief memorials recognizing KBA members in good standing as space permits and at the discretion of the editors. Please submit either written information or a copy of an obituary that has been

published in a newspaper. Submissions may be edited for space. Memorials should be sent to [email protected].

IN MEMORIAM

BOYCE FICKLEN MARTIN, JR., 80, former Chief Judge of the Kentucky Court of Appeals and the U.S. Court of Appeals for the Sixth Circuit, died Wednesday, June 1, 2016 at his home. Judge Martin was born Oct. 23, 1935 in Boston, Mass. He graduated from Eastern High School and received a Bachelor of Arts from Davidson College in 1957. His extracurricular activities at Davidson included playing football and serving as president of the Sigma Alpha Epsilon chapter, managing editor of the yearbook, president of the Philanthropic Literary Society, and captain in the ROTC. He was a Second Lieutenant in the U.S. Army’s armor branch and later Captain in the Army Reserve. He graduated from the University of Virginia Law School in 1963. He clerked for U.S. Circuit Judge Shackelford Miller before becoming Assistant U.S. Attorney and interim U.S. Attorney for the Western District of Kentucky. After working in private practice and teaching at the University of Louisville Law School for several years, he was appointed Jefferson Circuit Court judge in 1974 and won re-election to the Circuit Court later that year. Following the passage of the Judicial Amendment to the Kentucky constitution, Judge Martin was appointed to the Kentucky Court of Appeals in 1976. He was elected first chief judge of the new Court of Appeals. In 1979, President Carter appointed Judge Martin to the Sixth Circuit Court of Appeals. He was Chief Judge of the court from 1996 to 2003. He also served on the executive committee and other committees of the Judicial Conference of the United States, the national policy-making body for the federal courts. He retired from the court in 2013. Theabove information for Boyce Martin, Jr.’s obituary was pulled from a version that appeared in the Courier-Journal from June 3-5, 2016. To access the full obituary, visit: http://www.legacy.com/obituaries/louisville/obituary.aspx?pid=180197394.

F.C. “TYKE” BRYAN, 96, of Mt. Sterling, Ky., died April 16, 2016. He was born in North Middletown, Ky., on Aug. 28, 1919. After growing up in North Middletown, Bryan enrolled at Washington and Lee University in Lexington, Va. He played football, basketball, and was a member of the Pi Kappa Alpha fraternity. He grad-uated in 1941 and began to pursue his law degree at Washington and Lee the following semester. Following his sec-ond year at the law school, the institution closed because of World War II. He then attended one term at Harvard Business School and decided to go ahead and take the Kentucky Bar Exam, even though he had not completed law school. He passed. He began his law practice in Mt. Sterling, Feb. 1, 1943, and practiced law there for 65 years. He was a member of the Mt. Sterling Board of Education from 1959-1972. He held a seat on the Board of Di-rectors for Whitaker Bank (formerly Mt. Sterling National Bank) for more than 50 years. He was a deacon and elder at the First Christian Church. He was member of the Mt. Sterling Airport Board and served as its chairman for 35 years. He was a founding member of the Mt. Sterling Golf and Country Club, and he served as city attorney. He is also a long-standing member of the chamber of commerce, and is an honored member of the chamber’s Hall of Fame. The above information for F.C. Bryan’s obituary was pulled from a version that appeared on the Taul Funeral Homes website. To access the full obituary, visit: http://www.taulfu-neralhome.com/home/index.cfm/obituaries/view/id/3669269.

DATE DECEASEDJanuary 28, 2016February 13, 2016May 20, 2016April 22, 2016April 16, 2016June 2, 2016December 14, 2015March 18, 2016December 23, 2015March 31, 2016May 6, 2016May 12, 2016April 21, 2016June 1, 2016June 14, 2016June 3, 2016June 5, 2016April 10, 2016April 5, 2016June 1, 2016

STATEKYKYKYKYKYKYKYKYKYKYVAKYKYKYKYKYKYKYFLKY

CITYGlasgowBelcherFrankfortHarlanMt SterlingFrankfortHopkinsvilleUnion HopkinsvilleLexingtonFort BelvoirLouisvilleMelbourneLouisvilleLouisvilleLexingtonLouisvilleLouisvillePalm CityStanton

NAMERobert Matthews AlexanderCamilia Joanne BelcherFred F. BradleyJeff ey James BrockFrancis Carroll BryanWalter Luke BubenzerJohn J. Chewning James C. ConnerRobert L. FearsKermin Elliott FlemingJohn K. HickeySheldon N. Isaacs Leonard L. KopowskiBoyce Ficklen Martin Jr.Earl O’BannonPatricia H. RabitsHerbert T. Ransdell IIIRonald H. StewartJ. Wirt Turner Jr. Lillian D. Williams


WHO, WHAT, WHEN & WHERE

Have an item for Who, What, When & Where? The Bench & Bar wel-comes brief announcements about member placements, promotions, relocations and honors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, Bench & 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 is a $10 fee per photograph appearing with announcements. Paid professional announcements are also available. Please make checks payable to the Kentucky Bar Association.

4WWHO, WHAT,

WHERE & WHEN

Batson Nolan PLC announces that Court-ney Lutz has joined the fi m as an associate, where she focuses her practice in litigation and family law. Lutz earned her Juris Doctor, mag-na cum laude, from Belmont University, and her B.B.A. in music business, magna cum laude, also

from Belmont. She is a native of Madisonville, Ky., and is admitted to both the Kentucky and Tennessee Bars. Batson Nolan PLC has office in northern Middle Tennessee and assists clients in Ten-nessee and Kentucky.

DelCotto Law Group PLLC recently opened an offic in Louisville, its fourth in addition to office in Somerset, Danville, and its primary location in the historic Barton House near Gratz Park in downtown Lexington. Thebou-tique law fi m handles individual and business

debtor/creditor matters including financial disputes, restructur-ings and bankruptcies in all chapters. It also focuses on commer-cial litigation, mediation, and asset protection planning. TheLou-isville DelCotto Law Group offic will be led by member Jamie L. Harris, a Centre College and Brandeis School of Law graduate.

Bingham Greenebaum Doll LLP announces that local govern-ment leader and attorney David W. Tandy has joined the fi m as of counsel and is now a member of the economic development practice group. Tandy has served his community in local govern-ment for more than 11 years, helping guide the city’s multi-billion dollar economic growth through his work in various leadership positions on the Louisville Metro Council. He will continue his practice from the fi m’s Louisville offic as a member of the di-versified business solutions team. His legal practice focuses in the areas of business development and outside general counsel rep-resentation, public finance and government relations work. He received his B.S. from Vanderbilt University and his law degree from the University of Kentucky College of Law.

Bass, Berry & Sims PLC is pleased to welcome David W. Harp-er, Jr., to the fi m. Harper will practice in the fi m’s Nashville offic

ON THE MOVEin the position of associate. Harper counsels public and private companies across a broad range of industries on business matters in connection with real estate acquisitions and dispositions, com-mercial leasing, and complex term loan and asset-based financingtransactions. Harper received his law degree from the University of Kentucky College of Law (2015) and a B.A. from the Univer-sity of Kentucky (2012).

Fultz Maddox Dickens PLC announces that Corey M. Shapiro has joined the fi m as counsel. Shapiro has experience representing clients in a wide variety of commercial dis-putes, including in the areas of contracts, busi-ness torts, trade secrets, and health care. He

has defended healthcare clients in antitrust actions, partnership disputes, and governmental investigations. Additionally, Shapiro has developed an expertise in electronic discovery and was a mem-ber of the Seventh Circuit Electronic Discovery Pilot Program Committee. He earned his J.D. from George Washington Uni-versity School of Law ( J.D., cum laude, 2003) and his A.B. from Washington University in St. Louis (1996). Shapiro is admitted to the Bars of New York, Washington, D.C., Illinois, and Kentucky.

The San Antonio Bar Association (SABA) Board of Directors announces D. Larkin Chenault as executive director. Chenault will bring decades of expertise in bar association and foundation management, including for-midable experience in strategic planning, con-tinuing legal education, membership services,

Bench-Bar relations, access to justice/pro bono, diversity, law re-lated education and other community service programs, develop-ment/fundraising, bar technology and financial controls. Chenault has more than 32 years’ experience in bar association leadership, previously serving as executive director of the Connecticut Bar Association, the Cleveland Metropolitan Bar Association (where he merged two local bars), the State Bar of Michigan and the Cincinnati Bar Association and as director for continuing legal education at the Kentucky Bar Association. Chenault graduated from the Brandeis School of Law at the University of Louisville and was admitted to the Kentucky bar in 1978.

53BENCH & BAR |

Cintas Corporation, headquartered in Cin-cinnati, announces that Ashlee Coomer Foltz has been promoted to chief compliance offi-cer. Foltz oversees the compliance and ethics program for the company’s 30,000+ employ-ee-partners across North America and around

the world. She earned a B.A. in English from Centre College and her J.D. from the University of Dayton School of Law. She was admitted to the Kentucky Bar in 2005 and in 2013 became a cer-tified compliance and ethics professional (CCEP). In 2015, she was appointed Xavier University’s Ethicist in Residence at the Williams College of Business.

ThompsonMiller & Simpson announces that Joey Wright has joined the fi m as an associ-ate. Wright received his B.S. from University of Kentucky and his J.D. in 2012 from Univer-sity of Kentucky College of Law, where he was the Kentucky Law Journal notes editor. Wright

joins Th mpson Miller & Simpson after serving as law clerk to Chief Justice John D. Minton, Jr. of the Kentucky Supreme Court. Wright will practice in the fields of appellate law, and commercial and healthcare litigation.

Boehl Stopher & Graves announces that Clay Turner has joined the fi m as an associate at-torney. Turner’s practice will focus on defense litigation in areas of bad faith, personal injury, product liability, and no fault claims. Turner received his J.D. from the University of Ken-

tucky. Prior to joining Boehl Stopher & Graves, Turner was a staff attorney for Fayette Circuit Court Judge Tim Philpot.

Bingham Greenebaum Doll LLP announces that health care attorney René R. Savarise has joined the fi m as a partner and is now a member of the health and insurance team. Savarise has more than 25 years of experience related to health care law, and will continue her practice from the fi m’s Louisville offi . She focuses her practice in the areas of general health law, regulatory compliance, fraud and abuse, and False Claims Act matters. She regularly advises health care providers of all types, including health care facility clients, hospitals, physician practices, and physicians. She received her J.D. from Duquesne University School of Law, and her B.A. from University of Pittsburgh.

McBrayer announces that Katherine K. Yunker has joined the fi m as of counsel. Yunker joins McBrayer after practicing for over 20 years as a solo or in her own small fi m. She practices in the areas of antitrust law, con-sumer law, complex civil litigation, intellectual

property, and utility regulation. She has argued cases before the First, Sixth, and Ninth Circuits, the Kentucky Supreme Court, and the trial courts of Kentucky and several other states. Yunker can be reached at [email protected] or 859-231-8780, ext. 103.

Fogle Keller Purdy PLLC is pleased to announce R. Scott Bor-ders has joined the fi m’s Florence, Ky., offi . Borders served as

Administrative Law Judge in the KY Department of Workers’ Claims (2002-2016) after several years working in defense of school boards throughout the commonwealth.

Steptoe & Johnson PLLC announces that attorney Jonathan “Tyler” Adkins has joined the fi m’s litigation team. Adkins’ practice will focus on civil litigation as well as corporate law from Steptoe & Johnson’s offices in Ch leston, W.Va., and Lexington, Ky. Adkins joins Steptoe & Johnson from the law fi m of Fowler Bell PLLC in Lexington. During his career, Adkins also main-tained a solo practice and served as a clerk for the Kentucky State Police. Adkins is a member of the Lexington Young Profession-als Association, the Young Lawyers Committee of the Defense Research Institute, and serves on the board of trustees for Sup-porting Heroes, Inc. He earned his law degree from Salmon P. Chase College of Law and his bachelor’s degree from Northern Kentucky University.

Frost Brown Todd (FBT) is pleased to announce the appointment of nine new members. The following managing associates, listed by market, have been promoted to members: Cincinnati: Mau-reen A. Bickley is a member of the fi m’s product liability and tort and insurance defense practice groups. She handles national prod-uct liability litigation for manufacturers of consumer products, hand tools, construction materials and agricultural equipment. She also advises manufacturers with respect to warnings, instruc-tion manuals and product warranties. Luke J. Busam is a mem-ber of the construction law practice group and represents clients in a variety of matters, ranging from pay disputes, bid disputes, contract negotiations, mechanics liens and surety bond issues, to litigation, arbitration and mediation. Lexington: Keeana Sajadi Boarman is a member of the mergers and acquisitions practice group, with a focus on the coal industry. She advises individuals and businesses in a variety of transactional matters, including gen-eral business planning, entity formation, mergers and acquisitions, and contract formation and negotiation. Martha H. Staude is a member of the fi m’s regulated business practice group and the insurance regulatory service team. She advises insurance carriers on a variety of regulatory matters, including risk mitigation and compliance strategies, market conduct, and entity formation and licensing matters. Louisville: Amy F. Curry practices in the fi m’s finance and real estate practice group, where she represents lend-ers, investors, developers and owners nationwide in complex real estate finance transactions. Curry is admitted to practice in New York and Kentucky. Casey Wood Hensley is a member of the product liability litigation and tort and insurance defense practice groups. She serves as trial and appellate counsel on a variety of complex litigation matters concerning products liability, as well as cases involving premises liability, personal injury, breach of con-tract, business disputes and other issues. Nick Jones is a member of the fi m’s regulated business practice group and focuses on as-sisting financial institution clients with regulatory issues and with all aspects of mergers and acquisitions. He also focuses his practice on representing franchise and distribution clients with the devel-opment and registration of franchise documents, compliance with state and federal franchise laws, and drafting and negotiating sup-ply chain agreements. J. Kendrick Wells, IV, is a member of the product liability litigation and tort and insurance defense practice



groups. He regularly counsels clients on a wide range of complex commercial disputes and insurance coverage matters. West Ches-ter, OH: Alexander L. Ewing is a member of the fi m’s govern-ment services and labor and employment practice groups, where he represents employers in private and public sector employment and labor relations matters, including collective bargaining nego-tiations, labor arbitrations, and employment litigation proceedings before state and federal courts. He devotes a substantial amount of his practice to local government and school clients regarding labor relations matters. He also provides advice and training regarding employment law issues.

Middleton Reutlinger announces that Reza Rabiee has joined the fi m’s business law prac-tice group. He focuses in the areas of corporate law, economic development and incentives for business, finance and transactions, mergers and acquisitions, real estate development and

construction, and commercial lending. Rabiee regularly assists cli-ents in a variety of industries, including bourbon and real estate development. He received his undergraduate degree from Van-derbilt University in 2010. In 2013, he earned his J.D. from the Emory University School of Law. Rabiee earned his M.B.A. from the University of Louisville, College of Business, in 2015.

The Glenview Trust Company has added Stephanie L. Mor-gan-White to their team of trust professionals. She will concen-trate her efforts with high net worth individuals and their families to design and implement trust and financial solutions tailored to meet unique needs and preferences. Before joining Glenview, Morgan-White was a partner with the Louisville law fi m of Goldberg Simpson, LLC, where she spent nearly 19 years serving individuals and families in the private practice of law. She received her J.D. from the Cumberland School of Law of Samford Univer-sity in 1995. She had previously earned a B.A. in psychology with a minor in sociology from Wittenberg University in 1992.

Fultz Maddox Dickens PLC announces that E. Rachael Dahlman Warf has joined the fi m as an associate. Warf concentrates her practice on commercial litigation and healthcare law. Prior to joining the fi m, Warf practiced at a large regional fi m, focusing on commercial lit-

igation and bankruptcy matters. She has experience representing a wide variety of business clients, including healthcare providers and financial institutions, in contract actions, collection matters, insurance coverage disputes, and business-related torts. She re-ceived her J.D., cum laude, from the University of Kentucky Col-lege of Law in 2014 and is a 2009 graduate of Centre College.

Joseph L. Fink III was a member of the inaugural class of Inter-professional Education Fellows of the UK Center for Interprofes-sional Health Education. Sixteen faculty members from the Col-leges of Health Sciences, Medicine, Nursing, Pharmacy, Public Health and Social Work were inducted. Fellows were recognized as champions of multidisciplinary education through their in-volvement in research learning and service opportunities bringing

together a diverse group of professions. Interprofessional educa-tion prepares students for collaboration with other disciplines in real-world health care environments, and develops team-oriented faculty committees to improving health care delivery. He is pro-fessor of pharmacy law and policy at the UK College of Pharmacy. He also holds the endowed Kentucky Pharmacists Association Professor of Leadership chair. He received his professional edu-cation in pharmacy at the Philadelphia College of Pharmacy and Science and earned a J.D. at Georgetown University Law Center.

Managing Intellectual Property magazine recently selected Stites & Harbison, PLLC, attorney Man-dy Wilson Decker to the 2016 edition of Manag-ing Intellectual Property’s “Top 250 Women in IP.” Decker is one of only two IP women attorneys hon-ored from Kentucky, and the only patent attorney

honored in Kentucky. This is the second time she has been hon-ored on this list. Decker is a member (partner) of Stites & Har-bison based in Louisville and is a member of the fi m’s Manage-ment Committee. She is a registered patent attorney. Her practice focuses on intellectual property protection strategy, including coun-seling clients on infringement, validity and patentability, transfer of intellectual property, patent drafting, and patent prosecution.

J. Clair Edwards, an attorney with DelCotto Law Group PLLC, has been named the 2016 Outstanding Young Lawyer by the Fayette County Bar Association. This award is given to a young Fayette County attorney who has demonstrated promise in learning the practical

application of law to human problems, admirably fulfi led the du-ties owed by an attorney to the Court, clients, and the community and a dedication to the justice system through involvement in and enhancement of community life. Edwards facilitates the CARE (Credit Abuse Resistance Education) program for Lexington’s high school students and was recently appointed as a Chapter 7 Bankruptcy Trustee for the Eastern District of Kentucky.

Dinsmore & Shohl LLP’s Robert M. Croft has been elected as a member of the Greater Louisville, Inc. (GLI) Board of Directors. GLI’s mission is to accelerate economic growth, job creation and business competitiveness in the Greater Louisville Region. A partner at Dins-

more, Croft is a member of the product liability and toxic tort practice groups. He concentrates his practice in the areas of prod-uct and premises liability, insurance coverage issues and business litigation.

Last fall Judge Kimberly N. Bunnell was elected by her peers to a two-year term as president of the Kentucky Circuit Judges As-sociation. She follows Retired Jefferson Cir-cuit Judge Stephen George. During this time, Judge Bunnell will assist the Court of Justice

in improving electronic filin , maintaining courthouse safety and creating innovative educational opportunities for judges across the state. She will also work closely with the Kentucky General As-

IN THE NEWS

55BENCH & BAR |

sembly regarding proposed legislation and the goal of attracting and retaining qualified jud es.

The Commonwealth of Kentucky’s Department of Public Advocacy has named Stites & Harbison, PLLC, attorney Doug Farnsley as the recipient of the 2016 Public Advocacy Award for his work to advance diversity in the legal profession. Farnsley was presented the award in May. ThePublic Advo-

cate Award is a long-standing award created to recognize individ-uals who have earned a place of honor through dedication, service, sacrifice and commitment to fair process and individual liberties. Farnsley is a member (partner) of Stites & Harbison based in the Louisville offi . He is the immediate past president of the Ken-tucky Bar Association, where he previously served as president, president-elect, and vice president, as well as six years as a member of its Board of Governors.

Mazanec, Raskin & Ryder (MRR) announc-es that partner Christina L. Vessels has been admitted as a member to the Federation of Defense & Corporate Counsel (FDCC). Es-tablished in 1936, the FDCC is composed of recognized leaders in the legal community who

have achieved professional distinction, and is dedicated to promot-ing knowledge, fellowship, and professionalism of its members as they pursue the course of a balanced justice system and represent those in need of a defense in civil lawsuits. Vessels focuses her practice on insurance defense and coverage, professional liability defense, bad faith and extra contractual litigation, governmental liability, and appellate law. She represents a wide variety of clients including individuals, small businesses and national corporations. Active in a number of professional organizations, she is a member of both the Kentucky Bar Association and Fayette County Bar Association, in addition to the Kentucky Defense Counsel. She

earned her J.D. from TheUniversity of Kentucky College of Law, and her B.A. from Western Kentucky University.

Dinsmore & Shohl LLP’s Richard “Dick” H.C. Clay has been elected to the advisory board of the Museum of Early Southern Decorative Arts (MESDA). Clay currently serves on the board of trustees for the Speed Art Museum in Louisville and chairs its collections committee. He is a for-

mer chair of the board, and was a co-chair of the $60 million cap-ital campaign for the museum’s expansion project. Clay is a part-ner in Dinsmore’s litigation department and serves on the fi m’s Board of Directors and as the fi m’s Kentucky ethics partner. Clay practices in the areas of business and fiducia y litigation, appellate practice and administrative law.

Stites & Harbison, PLLC, attorney Cassidy Rosenthal has been named offic executive mem-ber for the Lexington offic effective immediate-ly. She succeeds attorney Greg Parsons, who has served in this role for fi e years. Parsons, a member (partner) of the fi m, will continue to serve clients

in his construction and litigation practice, and serve on the fi m’s six-member management committee. As the new offic executive member, Rosenthal will be active in the Lexington community on behalf of the fi m and assist the chair in executing fi m policy. She will continue to serve fi m clients and practice as a member (partner) of the fi m.

Wm. T. (Bill) Robinson III, member-in-charge of the Florence, Ky., offic of Frost Brown Todd LLC has been named chairman of TheNational Judicial College (NJC) Board of Trustees, effective June 1, 2016. Robinson has served on the NJC board since 2013, in-

cluding as treasurer. He has been active in the American Bar Association (ABA) for more than 30 years, including as 135th ABA President (2011-12), ABA Treasurer (2005- 08), 10 years on ABA Board of Governors, over 30 years in ABA House of Delegates and nine years as Kentucky State Delegate. Robinson is a Life Member, Sixth Circuit Judicial Conference; Fellow, American Academy of Appellate Lawyers; Fellow, International Society of Barristers and Life Leadership Fellow, American Bar Founda-tion. He is a member of American Board of Trial Advocates (ABOTA); American Law Institute; International Association of Defense Counsel; Product Liability Advi-sory Council and a past Commissioner on the Uniform Law Commission. Robinson served as 50th President, Kentucky Bar As-sociation (1985-86); President, Kentucky Bar Foundation (1988-89); Founding Chair (1986-88), Kentucky Interest on Lawyers Trust Accounts (IOLTA) Fund;

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President, National Caucus of State Bar Associations (1995-96) and is on the Board of the American Inns of Court Foundation. Robinson is a graduate of Th mas More College (1967) and the University of Kentucky, College of Law (1971), where in 2004 he was inducted into the Alumni Hall of Fame.

The University of Kentucky (UK) College of Law recently inducted Stites & Harbison, PLLC attorney Steve Beshear to its Hall of Fame for 2016. Inclusion in the Hall of Fame is the highest honor one can receive from the College of Law. Attorney Steve Ruschell earned the UK College of Law Community Service Award. Theattorneys were recognized during the Kentucky Bar Association annual convention held at the Kentucky Internation-al Convention Center in Louisville, Ky., on May 11, 2016. Beshear is a member (partner) of Stites & Harbison based in Lexington. He joined the fi m in 1987, served eight years as

Governor of the Commonwealth of Kentucky and rejoined the fi m in 2016. Beshear received his J.D., Order of the Coif, and B.A., with high honors and Phi Beta Kappa, from the University of Kentucky. Ruschell is also a member (partner) of Stites & Har-bison in Lexington. He is the chair of the Lexington offi ’s real estate service group. Ruschell received his J.D. and B.B.A., with honors, from the University of Kentucky.

Dinsmore & Shohl LLP’s J. Tanner Wat-kins was appointed by the Kentucky Supreme Court as representative of the 4th district on the Kentucky Bar Association’s Continuing Legal Education (CLE) Commission. Wat-kins will serve a three year term. As member,

Watkins will be partly responsible for the administration and reg-ulation of all continuing legal education programs and activities for the Kentucky Bar Association. Watkins is a member of Dins-more’s Litigation Department. Watkins earned his J.D. from the University of Kentucky College of Law, cum laude, in 2008 and received his undergraduate degree from Centre College in 2004.

Fayette County Circuit Court Clerk Vincent Riggs is the new president of the Kentucky Association of Circuit Court Clerks

(KACCC). He was elected to the office y his fellow circuit clerks during the 2016 Circuit Court Clerks Spring Conference that took place April 19-20 in Frankfort. Riggs’ term as KACCC president began immediately and is for one year. Riggs is the first Fayette County

circuit court clerk to be elected KACCC president. Prior to be-ing elected as KACCC president, Riggs served as the association’s first vice president, second vice president and was a member of the Education, Legislative, Driver’s License, and Technology Com-mittees.

Frost Brown Todd (FBT) Member R. James Straus received the 2016 Brown-Forman Spir-it of Justice Award at the 13th annual Brush, Bottle and Barrel of the Bluegrass (BBB). Straus is currently serving a fourth term as board chair for the Legal Aid Society, which is more than

any other individual has served in the organization’s nearly 100-year history. At FBT, Straus focuses his practice on general business planning and problem solving for private and public companies. He assists in the buying and selling of companies and other strate-gic transactions, as well as anti-trust analysis, supply chain design and franchise law. He also represents financial institutions and their directors and advisors.

Tom Coffey has been selected to serve as president-elect of the Brain Injury Alliance of Kentucky (BIAK) board. Coffey is a share-holder with Morgan & Pottinger, P.S.C., in Louisville. He has served on the BIAK board since 2012 and previously served as the policy

analyst for the Brain Injury Association of America.

Stites & Harbison, PLLC, attorney David Rat-terman was inducted into the University of Ken-tucky (UK) College of Engineering Hall of Dis-tinguished Alumni in a ceremony held on April 15. Less than one half of one percent of the College of Engineering’s graduates have received this honor.

Ratterman is a member (partner) of Stites & Harbison in the con-struction service group. His practice focuses on general construc-tion law, with particular emphasis on the fabricated structural steel industry. Ratterman received a B.S. in mechanical engineering from the University of Kentucky. He is a life member and current president of the UK Alumni Association, a UK Fellow, and has been a member of the UK Advocacy Network since its inception.

Ronald R. Van Stockum, Jr., announces that he has been appointed to the Oil and Gas Workgroup by Secretary Charles G. Snavely, Secretary of the Kentucky Energy and Envi-ronmental Cabinet. Dr. Van Stockum will as-sist others in the workgroup to address chang-

es in statutes and regulations that deal with oil and gas issues in the state of Kentucky, including those dealing with the disposal of low-level radioactive material.

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TheFayette County Bar Association bestowed Stites & Harbison, PLLC, attorney J. David Porter with the Henry T. Duncan Award. According to the as-sociation, this award is given to an attorney “whose integrity, leadership and professional conduct serves to exemplify the high ethical and professional stan-

dards that benefit the community.” Porter practiced in the trusts & estate planning service group based in the Lexington offi . Porter currently serves as president elect of the Kentucky Bar Foundation and is also a Fellow of the Foundation. He is a Fel-low and Kentucky State Chair of the American College of Trust and Estate Counsel.

Tanisha A. Hickerson, of Quintairos, Prieto, Wood & Boyer, P.A., was awarded Rising Star of the Charles W. Anderson, Jr. Bar Associa-tion, Inc. (formerly Louisville Black Lawyers Association, Inc.). The Charles W. Anderson, Jr. Bar Association, Inc., an affiliat chapter of

the National Bar Association, is a nonprofit organization dedi-cated to the advancement, development, and support of minority attorneys in the Metro Louisville area. Hickerson is a partner in the Louisville offic of QPWB. She practices in the area of gen-eral civil defense litigation. She is involved in the fi m’s diversity and inclusion initiatives and serves as co-chair of the fi m’s wom-en’s affin y group. She was awarded the Rising Star award for her personal integrity, distinguished service, and collective respect by

her professional peers. Thisaward is given to an attorney demon-strating excellence in the practice of law within their first 10 years of practice.

Dinsmore & Shohl LLP’s Michelle Tupper Butler is a graduate of the Louisville Bar As-sociation (LBA) Leadership Academy. Tupper Butler took part in the 2016 class. Tupper But-ler completed the LBA’s Leadership Academy in March 2016 and looks forward to using her

leadership skills to help shape Louisville’s future. Tupper Butler is an attorney in the Litigation Department. Her practice focuses on complex civil litigation in federal and state courts, especially on claims and investigations brought pursuant to the False Claims Act and Anti-Kickback Act.

On June 16-17, 2016, more than 20 high school, college and law students came to Northern Kentucky University to attend the 2016 KBA Why Choose Law/Diversity Pipeline Event. Theevent provided these students from underrepresented populations in the legal profession to attend a mock law school class, discuss a legal career with attorneys from across the Commonwealth and witness lawyers practicing during a legal clinic. Theprogram was sponsored by the Kentucky Bar Association Young Lawyers Divi-sion, the Kentucky Bar Association, the Kentucky Bar Foundation and the Northern Kentucky Bar Association.

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

Address or e-mail changes?! Notify the Kentucky Bar Association

Over 18,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. Pursuant to rule SCR 3.175, all KBA mem-bers must maintain a current address at which he or she may be communicated, as well as a physical address if your mailing address is a Post Offi e address. If you move, you must notify the Executive Director of the KBA within 30 days. All roster changes must be in writing and must include your 5-digit KBA member identification number.

Members are also required by rule SCR 3.175 to maintain with the Director a valid email address and shall upon change of that address notify the Director within 30 days of the new address. Members who are classifi d as a “Senior Retired Inactive” or “Disabled Inactive” member are not required to maintain a valid email address on file.

There are several ways to update your address and/or email for your convenience. VISIT our website at https://www.kybar.org to make ONLINE changes or to print an Address Change/Update Form -OR- EMAIL the Executive Director via the Membership Department at [email protected] -OR- FAX the Address Change/ Update Form obtained from our website or other written notification to: Executive Director/Membership Department (502) 564-3225 –OR- MAIL the Address Change/Update Form obtained from our website or other written notifica ion to:

*Announcements sent to the Bench & Bar’s Who, What, When & Where column or communication with other departments other than the Executive Director do not comply with the rule and do not constitute a formal roster change with the KBA.

Access the Kentucky Bar Association’s CAREER CENTER athttp://www.kybar.org/careercenter

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EMPLOYMENTPI Junior Associate Attorney ( Jacksonville, FL)Law Firm of Military Veterans is seeking Veterans for their growing law fi m. PI Jr Associate Attorneys (0-3 years’ experience and recent grads). Salary commensurate with experience. Please send cover letter and resume with references to [email protected] m

FOR SALEDeskJasper walnut desk in great condition with 82” x 39” top, for sale in Louisville. New keys just made. Finally reduced to $1400. Compare to advertised prices at Jasper website of $2,600 to $4,000. Contact Dean O’Leary at (502) 882-2555 or at [email protected] if interested. Photos available upon request.Motorcycle personal injury Law fi m for SaleMulti-state motorcycle injury law fi m for sale. It is highly sug-gested that interested fi m or party have a lawyer motorcyclists. Unlimited potential for future growth and opportunity to obtain a national reputation. Thisis not a case assumption situation.Send inquires to [email protected] or call 440-413-1927.Burial PlotsCave Hill burial plots. Cave Hill estate plot containing 12 burial sites with monument and granite marker privilege. (317) 340-7586.

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