KBA Bench & Bar - July 2010 - cdn.ymaws.com · schools using posters and other materi-als underscoring the 2010 Law Day theme provided by the American Bar Association and the Kentucky

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Employment Law

12 The Legal Implications of a Reduction in ForceBy Kelly A. Schoening and Mark D. Guilfoyle

16 Dealing with Social Media in the WorkplaceBy Paul Alley and Lyn Hils Mathews

23 GINA: Discrimination Law is in Our DNABy Todd C. Myers

28 Blowing the Whistle in the CommonwealthBy Stephen A. Simon

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

Communications & Publications CommitteeFrances E. Catron, Chair, FrankfortPaul Alley, FlorenceMindy Barfield, LexingtonSandra A. Bolin, BereaMichael A. Breen, Bowling GreenChristopher S. Burnside, LouisvilleDavid C. Condon, OwensboroJames P. Dady, NewportBruce K. Davis, LexingtonJudith D. Fischer, LouisvilleP. Franklin Heaberlin, PrestonsburgSheryl E. Heeter, NewportJudith B. Hoge, LouisvilleEdna M. Lowery, FrankfortTheodore T. Myre, Jr., LouisvilleEileen M. O’Brien, LexingtonBrian K. Pack, GlasgowRichard M. Rawdon, Jr., GeorgetownE.P. Barlow Ropp, GlasgowCandace J. Smith, CovingtonJeffrey R. Soukup, LexingtonE. Frederick Straub, Jr., PaducahGerald R. Toner, LouisvilleKatherine Kerns Vesely, LouisvilleMichele M. Whittington, Frankfort

PublisherJohn D. Meyers

EditorFrances E. Catron

Managing EditorShannon H. Roberts

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

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

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

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

C O N T E N T S

Departments

3 President’s Page By Bruce K. Davis

4 Featuring . . . KBA 2010 Annual Convention Coverage

11 YLS By Nathan Billings

33 Effective Legal Writing By Judith D. Fischer

34 Shop Talk By Michael Losavio

38 Kentucky Bar News

47 Who, What, When & Where

53 CLE

The front cover photo, taken at the Kentucky Bar Center, is a gathering of some of Kentucky's future leaders.

Photo by J Kathryn Photography

2 Bench & Bar July 2010

T he winners of the Kentucky BarAssociation’s annual Law DayCompetition were honored during

the Membership Luncheon held Friday,June 18, at the Hyatt Hotel in Lexingtonas a part of the 2010 Annual Conven-tion. Law Day Committee ChairmanGailen W. Bridges, Jr., presented theawards during the luncheon.

The Bowling Green-Warren County BarAssociation, Madison County Bar Asso-ciation and Clark County Bar Associationcaptured the Large, Medium and SmallBar Awards, respectively, in the competi-tion. Each organization centered theircelebration on this year’s theme “Law inthe 21st Century: Enduring Traditions,Emerging Challenges.”

As a part of its award-winning celebra-tion, the members of the BowlingGreen-Warren County Bar Associationdelivered presentations to the public andto students at local city and countyschools. The bar association also spon-sored essay and poster contests at localschools. As part of its ongoing commu-nity outreach efforts, the bar associationsponsored a canned food drive and madea donation to the Feeding America Back-Pack Program, a charitable organizationwhich fills and provides backpacks offood to school children who are underresourced and who might not have suffi-cient food during weekends andnon-school days. The public was also

invited to attend the Bowling Green-War-ren County Bar Association’s 2010 LawDay Ceremony which featured JusticeBill Cunningham of the Supreme Courtof Kentucky as the keynote speaker.

The Madison County Bar Association(MCBA) celebrated Law Day by send-ing its members into the community topromote and discuss Law Day andrelated topics with young people. It alsohosted a formal Law Day Banquet forits membership to recognize outgoingofficers, install new officers and honorseveral bar members for their specialachievements. During this event, mem-bers of the MCBA also celebrated thecreation of their new low-cost lunchtime

CLE program, which was developedwith the goal of offering enough creditsduring the course of the year to satisfyKBA requirements. Kentucky Court ofAppeals Judge Glenn E. Acree served asguest speaker for the banquet. As a partof its Law Day efforts, the MCBA alsoworked in cooperation with the Ken-tucky Bar Foundation to providevolunteer speakers for the Credit AbuseResistance Education (CARE) programaimed at informing high school seniorsabout the dangers of credit abuse andthe proper use of credit.

The Clark County Bar Association(CCBA) earned its award in the SmallBar category by organizing presenta-tions by its members in local elementaryschools using posters and other materi-als underscoring the 2010 Law Daytheme provided by the American BarAssociation and the Kentucky Bar Asso-ciation. Additionally, the CCBAsponsored a Law Day ceremony andreception in coordination with the ClarkCounty Circuit Court that directlyaddressed the 2010 theme while alsohonoring the late Circuit Clerk DavidNelson Hunt. This public event attractedmore than 100 individuals. Additionally,the CCBA organized the signing of ajoint proclamation by Winchester MayorEd Burtner and Clark County JudgeExecutive Henry Branham that offi-cially recognized May 1 as Law Daywithin the community.

2010 Law Day Awards

Matthew P. Cook, at left, accepts the LargeBar Award for the Bowling Green-WarrenCounty Bar Association from Gailen W.Bridges, Jr.

Brooke Bowman Mansfield, left, and Nora Shepherd accept the Medium Bar Award for theMadison County Bar Association from Gailen W.Bridges, Jr.

Michael A. Rowady, left, and David M.Ward, center, accept the Small BarAward for the Clark County BarAssociation from Gailen W. Bridges, Jr.

July 2010 Bench & Bar 3

PRESIDENT’S PAGE

Y ou have probably already noticed

that this issue of the Bench & Bar

contains highlights from the 2010

Annual Convention held in Lexington.

A record registration of over 2100

lawyers and judges made this

convention the most successful ever.

Over the last several years, the members

of the Kentucky legal profession have

made the annual convention much more

than a great opportunity to obtain

continuing legal education (CLE)

credits and hear from nationally

recognized speakers. With the assistance

of the law schools and many other law

practice related groups, the convention

has become a time of year when

lawyers and judges get together and

renew old friendships and make new

contacts as well as attend great CLE. If

you attended this year’s convention, I

hope you will agree that the Annual

Convention and CLE Program Planning

Committees, working with the

outstanding KBA staff, produced an

excellent three days of both educational

and social programs. Next year, the

convention will once again be held in

Lexington. Please mark your calendar

for the dates of Wednesday, June 15, to

Friday, June 17, 2011, for the 2011

KBA Annual Convention.

Just as the convention is a great

opportunity to meet with fellow lawyers

and judges, so are the upcoming District

Bar/Kentucky Law Update (KLU)

programs. The KLU registration forms

are out, and I encourage you to join the

over 4000 other Kentucky Bar

Association members who will sign up

for one of the nine locations. These

programs are a great member benefit

that is offered without registration fee

and is paid for through your dues

dollars. The KBA President’s

presentation during the KLU program

will be on the good value that we

receive for our annual dues.

Another member benefit offered

without additional charge is Casemaker,

an online legal research service. A few

years ago your Board of Governors

added this service to the KBA annual

budget. Each issue of this magazine

generally has an advertisement for

Casemaker, and Casemaker

representatives have provided

instruction programs at both annual

conventions and the Kentucky Law

Updates. While many members have

taken advantage of this online legal

research service, it still has not reached

the number of regular users that was

anticipated when the Board of

Governors entered into a service

agreement with Casemaker. The “out of

pocket” Bar dues cost to offer

Casemaker to the membership is

approximately $90,000 per year. We

would like to hear from you if you use

Casemaker on a regular basis and it is

beneficial to your law practice.

I am grateful for the opportunity to

serve this coming year as President of

the Kentucky Bar Association and wish

to express my sincere thanks for the

excellent leadership of Buzz English of

Bowling Green who served as FY 2009-

2010 KBA President. Buzz’s father,

Charles E. English, was one of the great

presidents of the KBA, and Buzz

certainly learned well from him.

Your KBA Board of Governors is

dedicated to advancing the legal

profession through leadership, ethics

and education, and the volunteer time

given by members of the Board as well

as hundreds of other lawyers and judges

is truly remarkable. The Kentucky Bar

Association could not operate without

the spirit of volunteerism that is alive in

the Kentucky legal profession.

Bruce K. Davis

BENEFITS OF KBA MEMBERSHIP

Mark yourcalendar

June 15-17, 2011

KBA Annual Convention 2011

Lexington


T he Kentucky Bar Association drew more than 2,100attorneys from across the Commonwealth and 30additional states to its 2010 Annual Convention in

Lexington, June 18-20, making the event the largest ever heldby the association.

KBA President Charles E. “Buzz” English, Jr., of BowlingGreen, said the turn-out exceeded the anticipated crowd of1,800 attorneys and reflected the diversity of theconvention’s 65 programs offered for continuing legaleducation. Additionally, the event benefited from the drawingpower of its featured speakers including Morris Dees, co-founder of the Southern Poverty Law Center in Montgomery,Ala.; Michael H. Rubin of Baton Rouge, La., an entertainingand respected authority on legal ethics; and Frank Abagnaleof Washington, D.C., the real-life subject of the motionpicture, Catch Me If You Can, and a recognized expert onfraud prevention.

The Annual Banquet held Thursday evening, June 17, alsodrew a record crowd of more than 500 participants to hearUniversity of Kentucky Men’sBasketball Coach John Calipariand to witness the presentationof annual awards. During thebanquet, English presented theKBA’s 2010 Outstanding JudgeAward to Kentucky Court ofAppeals Judge Sara Combs ofStanton, and the 2010Outstanding Lawyer Award toRobert G. Lawson, Professor ofLaw, University of KentuckyCollege of Law. Additionally,Chief Justice John D. Minton,Jr., presented James D. Lawsonof Lexington, ExecutiveSecretary of the KentuckyJudicial Conduct Commission, with the Chief Justice’sSpecial Service Award.

Following his presentation at the Annual Banquet, Caliparisigned copies of his book, Bounce Back: OvercomingSetbacks to Succeed in Business and in Life, and participatedin a photo opportunity with almost 60 KBA members andtheir families. A portion of the proceeds benefited theKentucky Children’s Hospital and the Calipari FamilyFoundation for Children.

Outstanding Lawyer Award — In presenting theOutstanding Lawyer Award, English said that ProfessorLawson was best known among Kentucky’s lawyers and

judges for his efforts “to improve the state’s laws and theapplication of those laws.” Lawson is the principal author ofthe state’s laws on crime andpunishment, and is theprincipal drafter of theKentucky Rules of Evidence.His Handbook on KentuckyEvidence Law is a trustedguide for many members of thestate’s legal community. Inrecent years, Professor Lawsonhas focused on problems in thestate’s prisons and jails. For hiswork in this area, he hasreceived numerous state andnational awards. ProfessorLawson has a Bachelor of Science degree from BereaCollege and a J.D. Degree from the University of Kentucky.He has been a faculty member of the College of Law since1966, with two periods of service as Dean: 1971-73 and1982-88.

Outstanding Judge Award — As the recipient of the 2010Outstanding Judge Award, Combs was recognized formaking history as the firstwoman to serve on theSupreme Court of Kentucky.Additionally, she was the firstwoman to serve as chief judgeof the Kentucky Court ofAppeals, a role in which sheserved from June 2004 untilMay 2010. She has been aCourt of Appeals judge since1994. English said Combs“devotes significant time tobettering our profession andthe Commonwealth. She has expended many hours,promoting pro bono service and encouraging all attorneys todevote energy and resources to serving in that manner.”Judge Combs ranked second in her class at the University ofLouisville Brandeis School of Law, which later honored herwith a Distinguished Alumni Award. She was valedictorian atboth Sacred Heart Academy in Louisville and U of L, whereshe obtained an undergraduate degree in French. She alsoearned her master’s degree in French from U of L, havingbeen recognized as a Woodrow Wilson Designate. JudgeCombs currently resides at Fern Hill in Stanton, the farm sheshared with her late husband, Gov. Bert T. Combs.

KENTUCKY BAR ASSOCIATION’S ANNUALCONVENTION IN LEXINGTON DRAWS

LARGEST CROWD EVER

KBA President Charles E. “Buzz”English, Jr., at left , presented UKLaw Professor Robert G. Lawsonwith the 2010 Outstanding LawyerAward

Ky. Court of Appeals Judge SaraCombs received the OutstandingJudge Award from KBA PresidentCharles E. “Buzz” English, Jr.

University of Kentucky Men’sBasketball Coach John Calipariserved as featured speaker at theAnnual Banquet


Chief Justice’s Special Service Award – Chief Justice Mintonpresented the Chief Justice’s Special Service Award to James

D. Lawson of Lexington inrecognition of his 28 years of“distinguished service” asExecutive Secretary of theJudicial Conduct Commissionand his “tireless dedication topromoting the higheststandards of professionalismamong Kentucky’s judiciary.”Chief Justice Minton saidLawson originally “inherited”the position in June 1982,when his brother RobertLawson, who was then servingas Executive Secretary to the

JCC, was reappointed as Dean of the UK Law School. Lawson graduated from Berea College in 1969 with a

degree in Business Administration. He attended the UKCollege of Law for one year before being drafted into theUnited States Army, where he served until 1972. Upondischarge from the military, Lawson reentered the UKCollege of Law. “By that time, Bob Lawson had beenappointed Dean of the law school,” Chief Justice Minton said,“so Jim completed his legal education under the watchful eyeof his brother.” Upon graduation from law school in 1974,Lawson was hired as Assistant Dean of the UK College ofAgriculture, a position he has held for the past 36 years. “Itruly appreciate your dedicated service,” Chief Justice Mintonsaid to Lawson, “and can’t thank you enough for the workyou have done to improve the judicial system in Kentucky.”

KBA Officers and Bar Governors — Following the awards,the KBA’s new Officers and Bar Governors for 2010-2011 weresworn into office by Chief Justice Minton. New officers include:

President Bruce K. Davis,Lexington; President-ElectMargaret E. Keane, Louisville;Vice President W. DouglasMyers, Hopkinsville; andChair, Young Lawyers Section,Nathan Billings, Lexington.Newly re-elected BarGovernors receiving their oathincluded Jonathan Freed,Paducah, 1st District; James D.Harris, Jr., Bowling Green, 2nd

District; M. Gail Wilson,Jamestown, 3rd District;

Douglas C. Ballantine, Louisville, 4th District; Anita M. Britton,Lexington, 5th District; David V. Kramer, Crestview Hills, 6th

District; and Bobby Rowe, Prestonsburg, 7th District. Serieta G.Jaggers of Princeton also was sworn in as a Bar Governor forthe 1st District; she fills a vacancy left by Vice-President Myers.

Also honored were outgoing KBA President Buzz Englishfor his contributions as president of the KBA from July, 2009

to July, 2010, and Jennifer Howard Moore of Lexington forher service as chair of the Young Lawyers Section and as amember of the Board of Governors, 2009-10. Covingtonattorney Barbara D. Bonar, who was unable to attend theAnnual Banquet, will receive a plaque recognizing her serviceas KBA President, 2008-09, and her membership on theBoard of Governors from 2006-2010.

Other awards presented at the Annual Conventioninclude:

Justice Thomas B. Spain Award – During openingceremonies for the convention on Wednesday, June 16, KBABoard of Governors member and Lexington attorney AnitaBritton received the JusticeThomas B. Spain Award for heroutstanding voluntarycontribution of time and talentin the planning, organizationand implementation of KBACLE programs, including theKy. Law Update (KLU) and theNew Lawyers Program (NLP).Britton was honored for herspecial commitment to servingas a speaker for NLP every yearsince 1998. Britton also servedas Chair of the KBA CLECommission from 2007-08 and as a commission member from2002-08. She has also served as a speaker at KLU and at threeKBA Annual Conventions. She was a member of the planningcommittees for the 1996 and 2004 Annual Conventions and isa CLE presenter for UK CLE; National Business Institute;Professional Education Systems, Inc.; and the Fayette CountyBar Association. In accepting the award, Britton encouragedexperienced lawyers to become involved in NLP “and help ouryoungest lawyers come out of the blocks in good fashion.”

Bruce K. Davis Bar Service Award — During theMembership Luncheon, Friday, June 18, Lexington lawyerHerbert D. Sledd received the Bruce K. Davis Bar ServiceAward for making significant contributions to the legalprofession through his professional, civic and charitableactivities during a long and distinguished career. Sledd

KBA CLE Commission memberJan Clark, at left, presented AnitaBritton of Lexington with theJustice Thomas B. Spain Award.

New KBA officers, re-elected bar governors and a new bar governorreceived their oath of office during the KBA Banquet.

Incoming KBA President Bruce K.Davis, at left, received the president’sgavel from outgoing KBA PresidentCharles E. “Buzz” English, Jr.

Chief Justice John D. Minton, Jr., ofthe Ky. Supreme Court, at left,presented James D. Lawson,Executive Director of the JudicialConductd Commission, with theChief Justice’s Special Service Award.

Young Lawyers Section AwardsDuring the YLS Section Luncheon held Thursday, June 17, thefollowing awards were presented:

Outstanding Young Lawyer Award — Ben Carter, Legal AidSociety, Louisville. Carter was recognized for his outstandingaccomplishments and community service as a young lawyer,which include his development and implementation of amediation process to help prevent home foreclosures inLouisville.

Nathaniel A. Harper Diversity Award — Robert F. “Bob”Houlihan, Jr., of Savage, Elliott, Houlihan, Moore, Mullins &Skidmore, LLP, Lexington. Houlihan was recognized for his workwith the Black Law Student Association Trial Team at theUniversity of Kentucky.

Outstanding Executive Committee Member — Roula Allouch ofO’Hara, Ruberg, Taylor, Sloan & Sergent in Covington. Allouchwas recognized for her work with the YLS “Voices AgainstViolence” project.

Outstanding Committee Member — Carl Frazier of Stoll KeenonOgden in Lexington. Frazier, who serves as an executivecommittee member for YLS, was recognized for his work on theSection’s diversity committee, public service committee, andprogramming committee.

YLS Bar Study Scholarship Recipients — A law student fromeach of Kentucky’s three law schools was selected to receive a$500 scholarship based on participation in their school’s studentbar association, their commitment to practicing law in Kentucky,and a demonstrated need. Students selected for the scholarshipare Emily Litzinger, Salmon P. Chase College of Law at NorthernKentucky University, Rebekah Cotton, Louis D. Brandeis Schoolof Law at the University of Louisville, and Tommy Juanso,University of Kentucky College of Law.


received his law degree after serving in the United StatesMarines Corps in the Pacific Theatre during World War II and

has been in practice for morethan 50 years, beginning withhis admission to the bar in1952 and continuing throughhis time as a senior member ofthe Lexington office of Wyatt,Tarrant & Combs, LLP. Sleddserved on the KBA’s Board ofGovernors for 10 years and asthe organization’s president in1964-65. He was a foundingmember of the Board ofDirectors of the Kentucky BarFoundation and served as the

organization’s president from 1965-70. Sledd also receivedthe KBA Outstanding Lawyer of the Year Award in 1959.

Sledd served on the Board of Governors of the FayetteCounty Bar Association for six years and as its president in1958. On the national level, he was one of the youngestattorneys ever selected to the American Bar Association’sBoard of Governors, serving as the organization’s secretary forfour years. Additionally, he is a life member of the ABAHouse of Delegates; a former Chairman of the Rules andCalendar Committee; and former Chairman of the Constitutionand Bylaws Committee. He also was recognized for his workwith the Lexington Chamber of Commerce, the LexingtonTheological Seminary, the Shriners Hospital, the LexingtonPhilharmonic Orchestra, the Boy Scouts and the Masons.

Donated Legal Services Award – Also during theMembership Luncheon, Melanie Straw-Boone received the2010 Donated Legal Services Award for her work in

expanding pro bono efforts inJefferson County andincreasing access to thejudicial system for those inneed. She is a partner in theLouisville firm of PregliascoStraw-Boone, whichspecializes in family law.Straw-Boone is the immediatepast chair of the Pro BonoConsortium, a partnershipbetween the Louisville BarAssociation and the Legal AidSociety which encourages the

pro bono, voluntary provision of civil legal services to MetroLouisville’s low-income community and its organizations.She has been instrumental in organizing, drafting, and leadingthe effort for pro se divorce and post decree forms, developedfor those with the fewest resources and most need. Theseforms have been so successful that, with the help from LegalAid Society, they are now online and accessible to all.

Straw-Boone helped coordinate Pro Se Divorce Clinics inJefferson County and has been involved with the Louisville

Bar Association for many years, where she also serves as amember of its Board of Directors. She is also a graduate ofthe University of Louisville’s Louis D. Brandeis School ofLaw. She is a Fellow with the American Academy ofMatrimonial Lawyers and is president-elect of theorganization’s Kentucky chapter. In 2007, she was therecipient of the Judge Richard A. Revell Family LawPractitioner of the Year.

Herbert D. Sledd of Lexington, atright, received the Bruce K. DavisBar Service Award from KBAPresident Charles E. “Buzz”English, Jr.

Melanie Straw-Boone of Louisvillereceived the Donated LegalServices Award from KBAPresident Charles E. “Buzz”English, Jr.

Ben Carter of Louisville receivedthe Outstanding Young LawyerAward from Ky. Court of AppealsJudge Sara Combs and YLSPresident Jennifer Howard Moore.

Robert F. “Bob” Houlihanreceived the Nathaniel A. HarperDiversity Award. Pictured with himare, from left, YLS Chair JenniferHoward Moore, Valorie Smith andKif Skidmore. Smith and Skidmorenominated Houlihan for the award.

Kentucky Bar Association Annual Convention 2010


Morris Dees Discusses InspiringLegal Careers

By Amy Carman

A s outgoing KBA President CharlesE. “Buzz” English, Jr., introduced

Morris Dees during the KBA 2010Annual Convention, he asked the trail-blazing civil rights activist and lawyerto “inspire us to make a difference.”

During his more than hour-longpresentation, Dees enthusiasticallycomplied.

With a gentle cadence and a slightSouthern drawl, the co-founder of theSouthern Poverty Law Center enlightenedthe capacity crowd in the BluegrassBallroom with stories from his pursuit ofjustice on behalf of the disenfranchised inan almost 40-year career.

Dees began his presentation byexplaining his Alabama upbringing inrelation to a memorable grade schoolteacher who was a native of Kentuckyand served as an inspiration for his career.

“There wasn’t much that she coulddo about segregation and the way wetreated African-Americans in ourcommunity, but she often spoke aboutthem and the way she didn’t feel theywere treated fairly and told us, if wecould, to be kindly,” Dees said. “Thatwas her way. I didn’t forget that. And Ithink that had a lot to do with the reasonthat I left that cotton farm and went tothe University of Alabama Law School.Like so many of you here, you went tolaw school in order that you might beable to help your community, to helpthis country and also to help people.”

Dees shared stories of importantcases in defense of unpopular causes,including President John Adams’representation — while still a coloniallawyer — of a British solider involvedin the Boston Massacre, and ClarenceDarrow, who worked to help establishthe right for collective bargaining whiledefending a labor organizer in Appleton,Wis., in the 1920s.

“There are tyrants big and small inthis nation today that lawyers confronton a daily basis, sometimes highlyunpopular cases defending, as JohnAdams did, the rule of law,” Dees said.“ … there are a lot of battles that wehave to fight and it’s important as

lawyers that we step up and do our bestto make sure that we are successful.”

Dees discussed his ownrepresentation of an African-Americanmother in the early 1980s whose sonhad been savagely beaten and lynchedat the hands of the Ku Klux Klan. Theconvention audience sat silently as Deesprovided details of the murderous plot,the KKK leaders who instigated it, andthe mother’s ultimate forgiveness of oneof the assailants, who was 17 years ofage when encouraged by the KKKleadership to carry out the crime.

“This lady who had lost one of themost precious things in her life, heronly son, had the love and the mercyand the understanding to reach out andforgive … a love and a justice and anunderstanding that we talk so muchabout, but as a nation, really, trulyknow so little of,” Dees said. “Thewords that came out of her mouth thatday were a higher justice than that $7million verdict that jury rendered laterthat night.”

Dees said he believed “simplejustice” is “what it is all about,” addingthat lawyers “hold the keys to the gatesof justice and that’s a solid entrustment.”

“Human rights begin close to home,in our schools, in our workplaces, in ourcommunities,” Dees said. “It is in theseplaces that people seek equal rights andequal treatment. And unless we aslawyers make that possible, unlesspeople find justice in these places intheir lives, then we as a nation will lookin vain for progress in a larger world.”

Dees ended his remarks by using aquote from the Biblical prophet Amos,saying, “I believe we will be successful… I find great judges, I find good juries,

I find lawyers who are willing to give oftheir time to make sure that ‘justice trulyrolls down like waters.’”

Michael Rubin Sheds Light on theEvolution of Legal Ethics

By Mary Beth Cutter

For years I suffered under the delusionthat I was the only person moved to

write music about practicing law inKentucky.* Well, if such undertaking wasever a singular accolade, it is no more. Atthe 2010 KBA Annual Convention inLexington, Thursday’s featured speaker,Michael H. Rubin, did just that. Mr.Rubin, the managing partner in the multi-state firm of McGlinchey Stafford PLLCand an author of numerous books, lawreview articles and periodicals, delivereda fast-paced, humorous, and musicalpresentation on the subject “The Ethics ofKentucky Negotiations – Are ThereAny?”

When I say that Mr. Rubin’spresentation was fast-paced, I am notexaggerating. While Mr. Rubin isSouthern, he is from Louisiana where itis acceptable to abandon the southerndrawl in favor of a choppy, neck-snapping explosion of expression, whichis exactly what we got. Accompanyingthe oral presentation was power-pointgold in the form of humorous visualsthat both helped to highlight his pointsand more clearly demonstrate theinformation being given. This was thepresentation needed during that lull rightafter lunch. There was no lull.

The content of the presentation wasthoughtful and provided a thorough

Trail-blazing civil rights attorney Morris Deesinspired the Annual Convention audience followingopening ceremonies in the Lexington ConventionCenter’s Bluegrass Ballroom on Wednesday, June 16.

Michael H. Rubin provided a fast-paced,humorous and informative presentation on legal ethics as the Annual Convention’s featuredspeaker on Thursday, June 17.


discussion of the evolution of “ethics”in law, particularly in negotiations. Hequestioned our old friend, the “ZealousAdvocate,” who has provided so manyof us with solace and justification as wework our way through the mire of legalnegotiations. He questioned therelationship between legal ethics andmorality and whether the rules of ethicsare really ethical at all, in the traditionalsense of the word. Is it acceptable to beless than truthful as long as we do notviolate the language of the KentuckyRules of Professional Conduct or if the“misdirection” deals only with “non-material” issues? How do we resolvethe tension between being a “zealousadvocate” and fulfilling our duty to thenoble profession that we have chosen?Mr. Rubin suggests that we shouldreject this tension rather than accept itand strive for the higher standard ofethics and professionalism. We arelawyers. We wrote the rules and madethe loopholes. Mr. Rubin asks theprofession to stop looking for theloopholes and embrace truth and fairdealing with each other and society.

Mr. Rubin ended his presentation bywalking over to a black, grand pianothat was waiting just off stage. Hefurther entertained and instructed uswith an original, humorous song hewrote on the subject of legal ethics inKentucky. The presentation ended on ahigh note, both literally and figuratively.

* Just as an aside and in the spirit of truthand fair dealing, the last music I evercomposed was at the age of nine, law wasnot the subject of this composition, andmy mother was the only one who trulyappreciated its genius.

Frank Abagnale Reveals Real Life of“Catch Me If You Can” Character

By Amy Carman

H e never went to flight school ormedical school or law school, yet

found success convincing others he wasan airline pilot, a pediatrician and alawyer. Between the ages of 16 and 21,he cashed $2.5 million in fraudulentchecks in every state and 26 foreigncountries.

But to hear Frank Abagnale, the real-

life subject of the movie, “Catch Me IfYou Can,” tell it, he always knew hewould be caught.

“Only a fool would think otherwise,”Abagnale told the KBA conventionaudience on June 18. “The lawsometimes sleeps, but the law neverdies. It was just a matter of time.”

When his parents divorced abruptlyat the age of 16, Abagnale already stoodsix-feet-tall and had flecks of gray in hishair. Upon receiving the news that hewould have to choose a parent to livewith, he ran away to New York City.His mature mannerisms, dress andspeech all assisted in his early ingeniouscareer as an imposter and check forger.

Between the ages of 16 and 18,Abagnale posed as a Pan Am pilot andreportedly flew more than one millionmiles on some 250 aircraft to 26countries, but never once boarded a Pan Am flight. Instead, he enjoyed thepractice of returning for free – or“deadheading” – on competing airlinesin the cockpit jumpseat behind thepilots, thus avoiding detection by thosewho might have asked him too manyquestions about his affiliation with Pan Am.

Along the way, Abagnale used – andabused – a long-standing reciprocalagreement among airlines that allowedairline employees to cash personalchecks up to $100 at airports worldwide.

With a John Doe warrant circulatingfor his arrest, Abagnale found his way toAtlanta where he posed as a pediatricianon leave from California, looking toinvest in property. A doctor in hisapartment complex sought his assistanceas a supervisor of interns while another

doctor took a leave of absence. “During my entire stay there, no one

ever doubted for a second I was adoctor,” he said. “When the doctorreturned, I left the hospital.”

He eventually made his way toLouisiana, where he passed the bar insix to eight weeks by taking apreparatory course. At that time, hesaid, the state did not require a lawdegree to take the bar. He eventuallyworked in the civil division of the statecourt for almost a year before leavingon his own accord, he said.

When he was 21, Abagnale wasapprehended by the French police. Histime in prison there was especiallysevere; the prison log book recorded hisweight upon entering at 198 pounds;upon his release, he weighed 109pounds.

Abagnale was later extradited toSweden and finally to the United Stateswhere, after almost five years in prison,he was released on the condition that hewould help the federal government,without pay, by teaching and assistingfederal law enforcement agencies.

These days, Abagnale is one of themost respected authorities on thesubjects of forgery, embezzlement andsecure documents. For over thirty yearshe has lectured to and consulted withhundreds of financial institutions,corporations and government agenciesaround the world. He has beenassociated with the FBI for over 35years and lectures extensively at the FBIAcademy and for the field offices of theFederal Bureau of Investigation. Hiswebsite, www.abagnale.com, offersnumerous free articles on avoiding fraudand theft under the “publications”section.

Abagnale credits his wife for histurning his life around.

“I could say that prohibitionrehabilitated me or I could take a cheapshot and say I was just a kid who justmade some mistakes and grew up. Butthe truth is God gave me a wife, shegave me three beautiful children, shegave me a family and she changed mylife, she and she alone,” he said.“Everything I have, everything I haveachieved, who I am today is because ofthe love of a woman and the respectthree boys have for their father.”

Frank Abagnale shared stories as the real-lifesubject of the movie “Catch Me If You Can” asthe convention began drawing to a close onFriday, June 18.


By Nathan Billings, Chair, KBA Young Lawyers Section

LAWYERS AS LEADERS:“Everything rises and falls onleadership.” – John Maxwell

Jack Welch, former President andCEO of GE, believed that his singlemost important task was to identify anddevelop his successor and the nextgeneration of leaders inside GE. In aword, he was first and foremost focusedon leadership reproduction.

For 2010-2011, YLS launched a newinitiative – “Lawyers as Leaders.”Lawyers, more than any other profession,are called to serve in leadership roles onboards and committees in non-profits,schools, churches, quasi-governmentalagencies, public service, law firms(obviously), bar associations (national,state and local) and, increasingly, withtheir clients. In fact, there is growingevidence that more and more attorneysare leaving day-to-day legal practice torun corporations and non-profits. (SeeABA Article on CEOs.) While many ofthese reasons are probably implicit, Inotice little explicit discussion about whywe, as lawyers, are called upon to lead.

The skills we use on daily basis(issue identification, risk assessment,written and oral communications) are afew of the same ones necessary forgreat leadership. (This is part of mytheory why lawyers, more than otherprofessions, are asked to serve onleadership boards and committees.)However, “leadership development” inother areas (vision casting, teambuilding, employee morale, strategicplanning, understanding financialstatements, etc.) occurs more often thannot, happenstance rather thanintentionally. In fact, these othernecessary skills are “picked up on thejob”, if at all. Unfortunately, as we allknow, neither law school nor the day-to-day “legal” work of an attorney

intentionally develops leadershipcharacter in us. Yet,

“Lawyers as Leaders” seeks tochange this. Our initiative is designed tointentionally engage young lawyers,from the time they join the bar to whenthey leave the YLS, to develop and toprepare them for leadership roles byeducating and exhorting them in allfacets of leadership development.Likewise, the initiative hopes to engagemore experienced attorney-leaders tointentionally assist in the leadershipdevelopment of at least one younglawyer. We want to help our generationof lawyers become “Level Five” typeleaders. (Collins, Jim “Good to Great.”)

Now, candidly, the program is notintended, nor do I believe, that Lawyersas Leaders will miraculously transformall young lawyers into Level Fiveleaders. But, intentionally engagingyoung lawyers today will help ensuremore successful leaders tomorrow.

“Lawyers as Leaders” was formallylaunched at the YLS Luncheon at the2010 Young Lawyers Conference duringKBA Convention. As we begin the2010-2011 year, my challenge to allattorneys is to become intentional aboutdeveloping the next generation oflawyers for our Commonwealth.

If you’re a “not so young lawyer,”hand-select at least one young attorneyto mentor. Make time monthly to meetwith him/her; invite them to attendboard or committee meetings as guests;help them to craft a leadershipdevelopment plan for their career.

If you’re a “young lawyer,” considervolunteering for the YLS on one of ourcommittees and watch for our Lawyersas Leaders activities this coming year.

If you would like to become moreinvolved in YLS, or with the Lawyersas Leaders initiative, please contact meat [email protected] or 859-225-5240.

2010-11 YLS EXECUTIVE COMMITTEEChair: Nathan Billings, Lexington

Chair-Elect: Rebekkah Rechter, LouisvilleVice-Chair: Jacquelyn S. Wright, MaysvilleSecretary/Treasurer: Carl Frazier, Lexington

Officers for the KBA’s Young Lawyers Section are, from left, Jennifer HowardMoore, past chair; Nathan Billings, current chair; Rebekkah Rechter, chair-elect; Jacquelyn S. Wright, vice chair and Carl Frazier, secretary/treasurer.


By Kelly A. Schoening and Mark D. Guilfoyle

T he economic recession has causedmany private and public employ-ers to take a drastic step and lay

off employees. An involuntary reductionin force (“RIF”) may be the last resortfor reducing workforce and sheddingcosts. However, RIFs also can lead tosignificant liability and cost companiesmore than what was saved by cuttingpayroll. It is far more complicated toreduce a workforce than most employ-ers realize.

In 2009, the Equal EmploymentOpportunity Commission had the sec-ond highest year for charges, following2008, which was the highest year. Thetwo-year average for charges was94,340.1 It is likely no coincidence thatcharges have increased in years thatunemployment has doubled.

The exposure to liability associatedwith an RIF is a claim of discrimina-tion. A typical scenario is for aterminated employee to allege that hisemployer selected him for the RIF notbecause of the reasons enunciated bythe employer, but because of his age,gender, race, disability, or some type ofretaliation. For example, an employeeterminated during an RIF can maintaina prima facie claim of age discrimina-tion merely by showing that: (1) he is40-years-old or older; (2) he suffered anadverse employment action; (3) he wasqualified for the position; and (4) hewas replaced by someone outside theprotected class.2

In order to prove a case of discrimi-

nation in an RIF context, plaintiffs carryan additional burden. Courts requireplaintiffs to provide additional direct,circumstantial, or statistical evidence toprove that the employee was singled outfor discharge for impermissiblereasons.3 The fourth element of theMcDonnell Douglas prima facie caseanalysis is modified to require this addi-tional evidence.4

Claims cannot always be prevented,but steps definitely may be taken tominimize liability and to make a casemore defensible. Employers are bestable to defend against such a claimwhen they are able to show that the RIFwas carried out pursuant to valid selec-tion criteria and was designed to retainthe most qualified employees. In orderto successfully utilize this defense—and, more importantly, to avoid alawsuit in the first place—involuntaryRIFs must be carefully planned. Thefollowing is a suggested preliminarychecklist for any employer consideringan RIF:

1) Written list of business reasons.The first step is for top manage-ment to identify in writing thebusiness and/or financial reasonsfor the RIF, including economicsavings and increases in efficiency.In other words, why is it neces-sary?

2) Goals of the RIF. Identify the goalsof the RIF, such as labor costs tobe eliminated or positions to beeliminated.

3) Consider alternatives. Will lessdrastic alternatives achieve the

goals? Employers should consideralternatives such as shortenedworkdays, voluntary pay reduc-tions, reductions of overtime,reduction or elimination of out-sourced labor, voluntary leaves ofabsence, and salary or hiringfreezes.

4) Written selection criteria. If noviable alternatives exist, the nextstep is to generate a written inter-nal statement of well-definedselection criteria for termination.How will the employer choosewhich employees may be termi-nated? A mistake here could lead tosignificant liability down the road.

5) Identify selection procedure. Iden-tify the decision-making sequenceand persons responsible for thosedecisions. Involve the HR depart-ment.

6) Assure RIF policies are followed.Some employers have written RIFpolicies. If so, the employer mustfollow the policy. Make certainthat all written RIF policies areknown and followed by the deci-sion-makers administering the RIF.

7) Employment contracts. Someemployees have employment con-tracts which may remove anemployee from the sphere of “at-will” employment. Contractsshould be terminated in accordancewith their terms.

8) Severance packages. Finally, con-sider severance payments coupledwith written releases. Releases canprotect employers from futureclaims, but they must be carefullydrafted in order to be effective.

To the extent possible, employersshould use objective criteria such asseniority to determine who will be laidoff. It obviously is much harder to dis-pute such objective criteria. However,employers are often reluctant to use sen-iority because it may not result inretaining the best employees.

If job performance is a criterion, jobevaluations and discipline become veryimportant. The evaluations or other doc-uments in the file should support the

EMPLOYMENT LAW


decision for choosing a particularemployee.

Regarding severance agreements inan RIF, valid consideration must be pro-vided to the employees in order toobtain a valid waiver. Severance agree-ments must be written correctly to beenforceable. For example, claims underTitle VII can be waived if the consent isknowing and voluntary.

If an employee is over age forty andthe employer is requesting a releaseunder the Age Discrimination in

Employment Act (“ADEA”), the OlderWorker’s Benefit Protection Act requiresthat several items be included in theagreement in order for the release to bevalid.5 For instance, the employee mustbe provided with twenty-one days toreview the agreement and seven days torevoke. The release must be knowingand voluntary; it must be written in aneasily understood manner; the ADEAmust be specifically referenced; rightswhich arise after the date of release can-not be waived;6 and the employee mustbe advised to consult with an attorney.7

If there is a group termination (wheremore than one employee is terminated),the employees must be provided withforty-five days to review the agreementand be provided with a list of employeesby age and job title who are in the samecategory and who were included in theagreement and those who were not.

Although there was previously aquestion as to whether an employeecould release a claim under the FMLA,the recent amendments clarified thatemployees may release such claimswithout first obtaining approval fromthe Secretary of Labor.8 Employees can-not waive their right to file a charge ofdiscrimination with the Equal Employ-ment Opportunity Commission(“EEOC”) because such claims belongto the government and not to the

employees.9 However, employees canwaive their rights to receive any com-pensation or benefit from such a charge.

When drafting severance agree-ments, employers should considerwhether to allow the employee theopportunity to resign in lieu of termi-nation of employment. They shouldalso consider whether to pay severancein a lump sum or over a period of time.There is a benefit to the employer topay over time so that the employeecannot apply for unemployment insur-ance benefits until the severancepayments run out. Other issues to con-sider are whether unused vacation willbe paid out, the type of reference thatwill be provided to the employee, andwhether the employee will be eligiblefor re-employment. It is advisable toinclude a non-disparagement clause sothat the employee does not speak ill ofthe employer. Employers should alsorequire a return of all property includ-ing files, equipment, and documents.There should be a confidentialityagreement so that the employee doesnot tell others about the severancepackage. Lastly, the attorney draftingthe severance agreement should ascer-tain whether any employmentagreement including a non-competeclause exists. If there is such an agree-ment, it must be terminated according

A partner withDressman,Benzinger &LaVelle inCrestview Hills,Mark D.Guilfoyle gradu-ated summacum laude from

Xavier University in Cincinnati1980, and from George WashingtonUniversity Law School with honors in1983. He served at the highest lev-els of the administration of Gov.Brereton Jones from 1991 to 1995.Mr. Guilfoyle's practice includesrepresenting health-care providers inadministrative and employment-lawmatters, and he publishes on varioussubjects.

Kelly A.Schoening isalso a partner atDressman,Benzinger &LaVelle. Shegraduated withhonors from bothFranklin College

of Indiana (1990) and Chase Collegeof Law (1996). Ms. Schoeningrepresents business clients inemployment-law matters in courtsand administrative tribunals in bothKentucky and Ohio, and lectures fre-quently on employment-law issues.She is active in professional associa-tions and civic affiliations, and haswon several awards for professionaldistinction and community service.

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to its terms; and any non-compete pro-visions should be addressed so thatthey are not waived.

Some severance plans may be subjectto Section 409A of the Internal RevenueCode by virtue of the severance agree-ment and can subject the employee tohefty taxes. If the termination is invol-untary or there is a good reason in avoluntary termination, there is anexemption from 409A. There is also anexception for short-term and small dol-lar amounts.

Some employers have tried to cutexpenses without permanently cuttingstaff through the use of furloughs. If afurloughed employee is hourly, there isno concern with the use of furloughs,but a problem arises if the employee issalaried. The Department of Labor(“DOL”) addressed the use of furloughsfor salaried employees and potentialviolations through two Opinion Lettersin 2009.10 The Fair Labor Standards Actrequires that employees who are exemptfrom overtime be paid on a salariedbasis despite the quantity or quality ofwork. If an employee is ready, willing,and able to work, deductions may notbe made from the weekly salary if thededuction is occasioned by the

employer.11 The DOL does allowemployers to deduct from accrued leaveaccounts in the case of a furlough, butunder no circumstances can the weeklysalary be reduced.12

Employers also must abide by theWARN Act when considering a reduc-tion in force.13 If the employer has morethan 100 employees, the WARN Actapplies.14 The Act comes into play inthe event of a plant shutdown or a masslayoff. A plant shutdown is the closureof an entire plant. A mass layoff occurswhen the employer reduces staff bygreater than 500 employees or lays offgreater than fifty employees and if thenumber laid off constitutes greater than33% of the workforce.15 There are sev-eral requirements under the Act,including providing sixty days’ notice tothe workers and notice to the State’sunit for displaced workers. Failure toabide by the WARN Act causes signifi-cant penalties.16

A reduction in force can be very use-ful to cut expenses and stay competitive.An RIF may be the only differencebetween a company staying in businessor not. However, if an RIF is not doneproperly and after careful planning, itcan backfire and cost a company more

by having to defend discriminationclaims or being assessed penalties.

ENDNOTES1. www.eeoc.gov2. Geiger v. Tower Automotive, 579

F.3d 614 (6th Cir. 2009).3. Schoonmaker v. Spartan Graphics

Leasing, LLC, 595 F.3d 261 (6th

Cir. 2010); Barnes v. GenCorp.,Inc., 896 F.2d 1457 (6th Cir. 1990).

4. McDonnell Douglas Corp. v.Green, 411 U.S. 792 (1973).

5. 29 U.S.C. § 626(f); 29 C.F.R. § 1625.6. Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974); Adams v.Philip Morris, Inc., 67 F.3d 580(6th Cir. 1995).

7. Id.8. 29 C.F.R. § 825.220(d).9. 29 U.S.C. § 626(f)(4); 29 C.F.R. §

1625.22(i)(2).10. Department of Labor, Fair Labor

Standards Act Opinion Letter 2009-14, 2009-2 (2009).

11. 29 C.F.R. § 541.602(a).12. Id.. §§ 541 600, 541.602.13. 29 U.S.C. § 2101.14. Id.15. Id.16. Id.


By Paul Alley and Lyn Hils Mathews

Social Media has gone “viral” and itis spreading not just throughschools, airports, homes, churches,

and colleges, but into private and publicoffices and companies of every sort. Itoccurs during lunch, at the desk, or onthe back loading dock. Sometimes man-agers know and sometimes they do not;regardless, it hovers somewhere nearbyin nearly every setting. Some companiesembrace it, while others strive to eradi-cate it; but attorneys and humanresources managers need to be preparedto address it. Dealing with Social Mediain the work place requires recognition ofthe benefits and risks and adoption of aworkable policy, coupled with effectivetraining of employees and supervisors.Simply ignoring the phenomena is a highrisk choice – either directly or indirectly,Social Media will at some point impactevery business and employee.

The human social web began longago and with each jump the law catchesup. The law of admiralty followed thedevelopment of sea travel; common-car-rier law evolved to handle railroads andthe advent of the telephone; and a hugeleap forward in communications tech-nology eventually fostered developmentof the Federal Wiretap Act.1 The Internetspawned email and discussion forums.Now it continues to expand, with SocialMedia providing a cheap and easy tech-nology that reaches around the worldwith little effort. And so, too, is the lawexpanding to regulate it. Facebook.com,Twitter.com, Linkedin.com, Flickr.com,MySpace.com, and a myriad of blogs

and other social networking websitesenable friends, family, strangers, andbusiness contacts to construct electroniccommunities with the ability to publishinformation worldwide. While thesetools let people keep track of friends orkeep an eye on the market, in the work-place they create privacy andtrade-secret perils for employers. Oppor-tunity, of course, comes with risk. Onlyby properly training personnel andadopting reasonable guidelines can thoserisks be managed. Like most usefultools, Social Media can be utilized forgood – as when a salesman onLinkedin.com expands his contacts – orfor evil – as when a disgruntled managertakes a parting shot by disclosing sensi-tive business information to thousandson a website posting.

Issues When Searching Resume/Job-Posting Sites

Social Media is a valuable tool in hir-ing and soliciting applicants throughjob-posting sites or soliciting referralsand leads from online colleagues. In thissituation Social Media is not that differ-ent from the role of traditionaladvertising media and in-person net-working. Human resources departmentscommonly use such sites to recruit bothlocally and from beyond the company’simmediate geographic area when out-side knowledge or experience is needed.Not surprisingly, Title VII of the CivilRights Act of 19642 and the Age Dis-crimination in Employment Act of19673 prohibit discrimination based onnational origin, religious status, sex,race, marital status, and age when using

these sites, just as these laws do in otheremployment contexts. There are few lia-bility issues arising from job- andresume-posting sites that are uniquefrom the traditional liability issues exist-ing with all job advertisements. Buteven the use of these sites can haveunintended consequences.

Things happen on the web that nor-mally do not happen elsewhere.Occasionally, while sorting through manyonline resumes, an employer may dis-cover a current employee is activelyseeking employment elsewhere. In Malekv. Amini’s Billiard & Bar Stools, Inc.4 aformer store manager was fired after hisemployer discovered he was posting hisresume in search of new employment.After being terminated, the employeealleged national-origin discriminationand retaliation.5 In court, the employerasserted that retaining an employee whois actively seeking employment else-where was against the company’s bestinterest.6 The court eventually grantedsummary judgment for the employer,holding that the employer had articulateda legitimate and nondiscriminatory basisfor terminating the employee.7

While online posting may be a goodway to find a job, employees should bewarned that it can also lose them theone they already have. Employees, how-ever, are not the only ones that shouldtake caution from this case. If thereverse were to occur, and an employerpre-posted an upcoming job vacancy,there is also a significant chance that thesoon-to-be terminated employee maydiscover his job has been posted. Anemployee’s awareness of pendingadverse employment action carries arisk of that employee pursuing preemp-tory employment claims, disclosingsensitive information, or making nega-tive web postings. Consequently, goodpractice requires discretion by all par-ties, a comprehensive policy, and a basicfamiliarization with the statutes dis-cussed later in this article.

The Visitor in Your Social MediaCircle Might be the Boss

While online job posting may nowborder on the mundane, Social Media is

EMPLOYMENT LAW


increasingly being used to keep checkon employees’ conduct outside of workand even to snoop on and verify the cre-dentials and backgrounds of mere jobapplicants. Social Media is cheap andeasy and the ready access practicallybeckons utilization as a means to verifyemployee fitness and loyalty, and per-haps even as a simple tool to verify theresumes or to “get the rest of the story”on new applicants. The cases are slowlycarving the acceptable limits of permis-sible conduct when using Social Mediafor these purposes. Even at this earlystage, it is apparent that the risks associ-ated with the two uses are not identical.

1. Acceptable SnoopingIn the case of Simonetti v. Delta Air

Lines Inc.,8 a flight attendant’s blog dis-cussed her various aspects of her workand posted photographs of her in hercompany uniform. Her employer dis-covered the photographs and othercontent and terminated her. Theemployer argued to the court that thephotographs and comments about cus-

tomers and work were detrimental to theairline’s brand image and reputation.9

The employee unsuccessfully chal-lenged the termination alleging, amongother things, discrimination.10 The courtupheld the termination upon finding thatthe employer had successfully provenshe was terminated for legitimatenondiscriminatory reasons.11

With Social Media proliferating, andlarge numbers of employees entering siteson their own time and probably evenwhile at work, employers should addresstheir expectations to the employees inclear and concise policies. Whetheremployers like it or not, their employeesare talking about them all over the Inter-net. “A survey released on September 25,2009 by the Society of Corporate Com-pliance and Ethics and the Health CareCompliance Association revealed that50% of employers do not have a policy toaddress employees’ use of social net-working websites outside the office,although one quarter have already disci-plined an employee for improperactivities on one of these sites.”12 Courts

have held that employees posting viciousor unflattering comments about theiremployer, supervisor, or the employer’sproducts may be terminated.13 Privateemployees in Kentucky typically serve inan at-will capacity unless protected bysome form of employment contract orcollective bargaining agreement.14 Thismeans that employers usually do not needto justify a nondiscriminatory decision tofire. Thus, if an employer discovers dam-aging blog comments from its employee,termination is one viable option.

Prevention is always easier than try-ing to cure a problem, so employersneed to update their outdated Internet orcomputer-use policies and expand themto include Social Media issues. Depend-ing on the employer and nature of thebusiness, such updates may need tospecifically prohibit employees fromposting harmful or disparaging com-ments about the company. Andemployees should be reminded never torepresent that they are speaking onbehalf of the company when they partic-ipate or post remarks. Take the time

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either in a policy or in training toremind employees to use good judgmentwhen posting to their Social Media net-works, because the boss and everyoneelse they know will be reading.

2. Unacceptable SnoopingAs you might expect, there are limits

to the level of Social Media snooping inwhich the boss may engage. Privacy stillexists, even if the circle of protectionseems to have gotten smaller in the mod-ern age. Examples of overzealousmonitoring by employers serve as warn-ings to other employers to follow simple

rules: no hacking, no lying, no aliases, nostealing, and no trespassing. Stay awayfrom “private” web pages and do followthe rules. In the New Jersey case of Hill-stone Restaurant Group v. Pietrylo,15

overzealous managers heard about aSocial Media page where they themselvesand the company were the topics of dis-cussion. The managers wanted to gainaccess to the comments of their employ-ees, but the site was not a public page.Only invited employees had access.16 Inviolation of the simple rules above, they“persuaded” an employee to give up apassword so they could get into the invi-

tation-only MySpace page. The uninvitedmanagers accessed the site and subse-quently fired two employees who sued inresponse. The court found that the man-agers had wrongfully invaded the privacyinterests of the employees and awardedback-pay and punitive damages.17

In addition to the “simple rules,”managers also must be careful not totake adverse action when the informa-tion learned from a Social Media searchis an otherwise-protected activity underthe law. For example, an employermight discover that an employee is pro-moting or attempting to organize aunion. In these circumstances andunlike some of the examples above, theemployer is prohibited from takingadverse action against the employeeunder the terms of the National LaborRelations Act.18 Similar constraints existunder the Sarbanes-Oxley Act19 andvarious whistle-blowing statutes protect-ing employee statements or actions.20

Where the employer is a governmentagency, there is an additional layer ofanalysis because the offensive state-ments or content may be protectedunder the First Amendment. Suffice it tosay, that although Social Media is a newfrontier, the rules limiting employeraction under circumstances still apply.Consequently, employers have to becareful not to expose themselves topotential labor claims, retaliationclaims, or even discrimination claims.Before taking adverse employmentaction, take the time to analyze if theposting constitutes any protected activ-ity, such as objecting to allegeddiscrimination or whistle-blowing.21

Like the “simple rules,” a good appli-cation of common sense can often avoidtrouble. Employers should read beforeclicking acceptance of a terms-and-usestatement. In Konop v. Hawaiian Air-lines, Inc.,22 an employer again“borrowed” an employee’s password andaccessed an employee-created websitethat was devoted to discussing unionactivities at the employer. The employeewanted to replace the existing union orat least wanted to highlight how it couldbe working harder for employees.23

After reviewing the comments, theemployer complained to the officials ofthe existing union, word got back to the

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employee who had created the site, andhe sued. Even though the employer“borrowed” a password, the website’sterms of use specifically barred all man-agement access, and access to the sitewas therefore wrongful. Under federallaw, management may not under thesecircumstances engage in surveillance ofunion activities. The court found that theemployer’s conduct constituted prohib-ited interference under the NLRA.24

How employers obtain access and infor-mation from Social Media sources cancreate potential liability even if theemployer ultimately does not takeadverse action against the employees.

3. Gray Area Snooping andAdditional Potential Traps for the UnsuspectingWith the doctrines of negligent

hiring25 and negligent retention andother theories of liability lurking outthere, companies frequently are temptedto check into an applicant’s online back-ground. A few minutes of Internetsearching in the public domain canreveal convictions, inappropriate photo-graphs, misstatements on applications,and even applicant postings about pres-ent or prior jobs and employers. Theease and low cost of searching publicSocial Media is a natural pull and ishard to resist, despite the potential lia-bility issues it can create. After all, if anapplicant has racist statements, defama-tory comments, or indications of violentbehavior on his blog, or trumpets a con-nection to terrorism on his Facebookpage, those would be relevant to thedecision to hire. However, the endeavoris not necessarily as straightforward asit first appears. The hiring process issubject to many levels of scrutiny, bothunder Title VII and many complimen-tary state and local regulations. Mostinterviewers are familiar with the ideathat certain subjects and information areoff-limits. Those restrictions do not nec-essarily disappear simply because theemployer pulls the information from theapplicant’s Facebook page.

The random nature of the informationavailable on the web creates potential lia-bility issues. Unfortunately, there issimply no way to know what will be dis-covered about an applicant. The

employer may discover legitimategrounds for passing over a candidate,like indications of drug use or inappro-priate photographs, misrepresentations,or protected information like religiousstatus, national origin, age, marital status,family status, or protected-class status.One major Texas bank is attempting toavoid this pitfall by adopting a blanketpolicy that bans the use of all social net-working sites in their applicant andhuman resources screening process.26

Employers should at a minimum adoptpolicies to govern the process. By allmeans, be consistent and either screen allcandidates or screen none, rather thanpicking and choosing. Another potentialsolution may be to utilize a third partywho only reports legally permissibleapplicant information to the employer, toensure that legal prohibitions are notinadvertently violated. Otherwise, thechallenges are great for a decision-makertrying to successfully filter the informa-tion on a social networking site so as notto obtain information that the employeris not legally entitled to ask about oreven know about.27 Once the informationis obtained, and regardless of whether itis positive or negative, an employer israrely able to show that the informationwas not used in a decision not to hire.28

4. Federal Statutes for the Social Media SavvyDealing with Social Media in the

workplace requires not just familiaritywith employment regulations but an addi-tional basic understanding of the purposeand impact of some particular federalstatutes. Social Media and networking areimpacting how business is done and are

creating new risks and new opportunities.Some employees use Social Media atwork for both employment-related andpersonal reasons, requiring a formalSocial Media policy to address both uses.In any case, a policy must be drafted thatrecognizes that laws regulating conducton the web and the infrastructure thatsupports it are both evolving. Considera-tion of the Computer Fraud and AbuseAct, the Communications Decency Act,and the Stored Communications Actshould occur. There are other statutes toconsider, but each of these Acts will defi-nitely impact the ability of employers toprotect, harness, and supervise SocialMedia use in the employment setting.

a. Computer Fraud & Abuse ActThe Computer Fraud and Abuse Act

(“CFAA”)29 prohibits intentionallyaccessing a computer without permis-sion when damage or impairment to dataresults. The CFAA can be both a shieldand a sword in the hands of a knowl-edgeable employer or employee. It canbe useful when pursing civil remediesagainst employees who have accessedinformation without permission prior todeleting it, posting it on the Internet,sharing it with competitors, or emailingit home to a personal computer. CFAAcan have advantages over the KentuckyTrade Secret Act30 because there are norequirements to establish the elements ofa trade secret definition: there is no bur-den to show a heightened effort toprotect the data and merely showing thatthe employees accessed the informationwithout permission is sufficient. Settingthe stage for protection under CFAAinvolves a Social Media and computer-

C. CLEVELAND GAMBILLRetired United States Magistrate Judge

M E D I A T I O N S E R V I C E SStatewide

Louisville • 502.931.7103Lexington • [email protected]


use policy that defines the limits of per-mission and permissible access.

b. Communications Decency ActThe Communications Decency Act of

1996 (“CDA”)31 protects blog and web-site providers from liability for commentsposted by users. The CDA provides that“No provider or user of an interactivecomputer service shall be treated as thepublisher or speaker of any informationprovided by another information contentprovider.”32 The statute prohibits bringinga cause of action or imposing liability“under any state or local law that isinconsistent with this section.”33 Anemployer that provides an employee withInternet access through the company’scomputer system has been deemed aninteractive computer service provider(“ICSP”).34 Thus, the CDA can insulatethe employer when employees use thework system for inappropriate commentson a webpage, and it also helps protectbusinesses when third parties post wrong-ful comments on a company webpage.The CDA, however, does not relieveemployers from other liability properlyarising in the course of employment andthe agency relationship. The most obvi-ous use is protection when employeesengage in discussions on a bulletin boardor forum provided by the employer as abenefit to the employees.35 Still, theemployer needs to monitor such sites fordiscriminatory statements and harass-ment. The CDA does not take away theTitle VII obligation to take corrective andremedial action when prohibited discrimi-natory conduct occurs.

c. Stored Communications ActAnother statute that impacts the use of

Social Media in the workplace, and espe-cially efforts to monitor the activities ofemployees, is the Stored Communica-tions Act (“SCA”).36 The SCA imposescriminal and civil penalties on anyonewho intentionally accesses stored elec-tronic data at “a facility through which anelectronic communication service is pro-vided” and “thereby obtains, alters, orprevents authorized access to a wire orelectronic communication while it is inelectronic storage in such system.”37 Con-sideration of this statute in formulating acomprehensive policy is crucial because

under the SCA, if the employer is provid-ing the electronic communicationssystem, then it may access emails andmaterials created by employees if the dataresides on the employer’s system. How-ever, if the information is stored at athird-party service provider, like a per-sonal Yahoo email account, then it canresult in an SCA violation if the employeraccesses or monitors that account.38 TheSCA is important to the monitoring con-cept precisely because it prohibits, amongother things, unauthorized access to pass-word-protected email accounts or socialnetworking groups. The United StatesCourt of Appeals for the Fourth Circuitlast year upheld a district court’s authorityto award punitive damages against anemployer for violation of the SCA eventhough no actual damages were awardedon the underlying SCA violation.39 In thetraining and policy formulation process itis important to note that the SCA can beavoided if the parties consent to disclo-sure, so employers should considersigned employee consents that also incor-porate conditional use statements as partof any Social Media policy.

5. Policy Formulation and TrainingPoints to ConsiderA Social Media policy should protect

the employer to the greatest extent pos-sible under the law and facilitate ahealthy productive employment relation-ship by clearly defining expectations andprivileges for all. The policy should setlimits on the personal use of computers,the Internet, email, and social network-ing and media resources, and on theresources of the company. Do not hidethe ball. Explain what, if any, expecta-tion of privacy or confidentialitypersonnel should have when using com-pany computers and networks for allpurposes including access to the Inter-net, the company’s email system, phonetexts, internal and external blogs, and allsocial networking websites.40 Protectvaluable or business information by lim-iting access to confidential businessinformation or denying access outside anindividual’s area of responsibility.Explicitly prohibit disclosing the com-pany’s confidential or proprietaryinformation, or using the company’strademarks or logos to endorse or pro-

mote others (including political candi-dates) in blogs, on social networkingsites, etc. The policy may outright pro-hibit the use of blogs, Facebook, Twitter,LinkedIn, and other online resources todiscuss customers, products, work, orjob performance of other employees orsupervisors, or it may establish specificguidelines, but some policy is advisable.Update harassment policies to prohibitthe use of Social Media outlets to harassor discriminate against coworkers. And,define “permissive use” to forbid thereceipt or transmission of obscene, ille-gal, discriminatory, or any otherinformation that may result in harass-ment or defamation. Remember that theabsence of a policy only invites trouble.

Attorneys can be very helpful toclients in updating these policiesbecause the law is still evolving. Olderpolicies on email or computer access areoften obsolete and need review. Evencurrent policies can still require theadvice of counsel as the law continuesto evolve. For instance, an employee’scommunications with their private per-sonal attorney may under certaincircumstances still be privileged even ifmade using a company computer net-work.41 In Stengart v. Loving CareAgency, Inc., a New Jersey appellatecourt held that an employee’s emailsexchanged with her attorney on her per-sonal, password-protected, web-basedemail account on a company computerremained privileged despite the com-pany’s electronic communicationspolicy.42

One always important factor is man-ager and employee training so that theycan properly exercise good judgment.Train them to understand the adoptedpolicy, its scope, and their own respon-sibilities. Make sure they understandthat their online comments have real-world consequences for the companyand for them. The company mayalready have a policy in place thatrequires reference checks to be directedto the human resources department orto a particular supervisor, in which casethe policy may in part simply beextended to remind employees that itapplies to Social Media too. Trainsupervisors that they should not postonline recommendations and comments


about present or past employees, andmake sure that supervisors understandthe need to report and investigate whenthey learn about red flags on a socialnetworking site that could constituteworkplace harassment or discrimina-tion.43 Train supervisors not toimproperly “borrow” passwords orsneak into private web pages or emailaccounts and on the need to follow the“simple rules” of no lying, cheating, orstealing even when dealing with SocialMedia. Lastly, require everyone toacknowledge receipt of the policy andto sign the signature page to be retainedin the employees’ files.44

6. Follow-Through is ImportantAny computer-use or Social Media

policy must be consistently and equallyenforced as to all employees.45 A failureto enforce policies in all circumstancescan also lead to liability.46 Once a pol-icy is adopted, it is important to ensurethat “informal” deviations from thewritten policies are not permitted. In theUnited States Court of Appeals for theNinth Circuit case of Quon v. ArchWireless,47 the employee’s supervisorsdeviated from the employer’s writtenpolicy stating that use of the employercellular telephones for personal pur-poses was prohibited and thatemployees had no privacy right in thephones. Despite this policy, the individ-ual supervisor permitted personal use,including text messages, as long as theemployees reimbursed the employer forany use that exceeded the monthlyamount purchased by the employer.48

The Ninth Circuit held that the publicemployee had a right to privacy in hisracy text messages, regardless of thewritten waiver of personal privacy pro-vided by the employee to the employer.Because the text messages were storedon a separate electronic communicationservice provider’s network, they weredeemed protected.49

The United States Supreme Courtgranted certiorari of the Ninth Circuit’sdecision on this claim,50 and recentlyheld that the public employer’s review ofthe text messages was reasonable andnot a violation of the Fourth Amend-ment.51 The Supreme Court alsoindicated that going forward, employers’policies communicated to employees

would likely be a key factor in analyzingthe reasonable privacy expectations ofemployees.52 Caught in the crossfire wasArch Wireless, who provided the contentsof the personal text messages to theemployer, and who was held by the NinthCircuit to have violated the SCA. TheSupreme Court denied certiorari of theNinth Circuit’s decision on this claim.53

ConclusionSocial Media in the workplace is per-

haps a brave new frontier, but not onewithout peril for the employment rela-tionship. There are pitfalls for theuninformed who think anything goeswhen it comes to the web. Even the newuse of the new frontier is regulated bymost if not all of the traditional employ-ment statutes and principles, only nowthey are joined with new Internet-spe-cific statutes like the CFAA, the CDA,and the SCA that also require considera-tion. Effective policies and training canhelp insure harmonious employmentrelationships, but as the law evolves,care must be taken to update both

polices and training to successfully dealwith Social Media in the workplace.

ENDNOTES1. 18 U.S.C. § 2511.2. 42 U.S.C. § 2000d et seq.3. 29 U.S.C. Chapter 14.4. 454 F. Supp. 2d 1106 (D. Kan.

2006).5. Id. at 1108.6. Id. at 1114-15.7. Id. at 1115.8. No. 5-cv-2321 (N.D. Ga. 2005).9. See Gregory I. Rasin and Ariane R.

Buglione, Social Networking andBlogging: Managing the Conversa-tion, N.Y. L.J. (July 27, 2009)(available at www.nylj.com).

10. Id.11. Id.12. Lori E. Lesser, Information Tech-

nology Law Institute 2010:Opportunities in Cloud Computing,Blogs, Brand Protection and Tar-geted Marketing, SOCIAL NETWORKS

AND BLOGS, 1001 PLI/PAT 101, 157(Apr.–May, 2010).


13. See, e.g., City of San Diego, Cal. v.Roe, 543 U.S. 77 (2004); EndicottInterconnect Techs., Inc. v. NLRB,453 F.3d 532 (D.C. cir. 2006).

14. Grzyb v. Evans, 700 S.W.2d 399(Ky. 1985).

15. 2009 WL 3128420 (D.N.J. Sep. 25,2009).

16. Id. at *2-3.17. Id. at *3.18. See e.g., Endicott Interconnect

Techs., Inc., 345 NLRB No. 28(2005). But see In re The GuardPubl’g Co. d/b/a The Register-Guard and Eugene NewspaperGuild, CWA Local 37194, Cases36-CA-8743-1, 36-CA-8849-1, 36-CA-8789-1, and 36-CA-8842-1(Dec. 16, 2007) (review granted inpart, enforcement granted in part,and remanded by Guard Publ’gCo. v. NLRB, 571 F.3d 53 (D.C.Cir. 2009)).

19. 18 U.S.C. §1514A; 29 CFR Part1980 (2003).

20. Lesser, 1001 PLI/Pat AT 157, supranote 12.

21. Id. at 156-57.22. 302 F.3d 868, 872 (9th Cir. 2002).23. Id. at 873.24. Id. at 883.25. See Oakley v. Flor-Shin, Inc., 964

S.W.2d 438 (Ky. Ct. App. 1998)(employer hired employee withcriminal background).

26. Jenny B. Davis, Bank Nixes Use ofSocial Networking Sites in HiringProcess, TEXAS LAWYER, Apr. 13,2009.

27. Id. 28. Id.29. 18 U.S.C § 1030.30. Kentucky Revised Statutes Chapter

365 et seq.31. 47 U.S.C. § 230(c)(1).32. Id.33. Id. § 230(e)(3).34. Delfino v. Agilent Tech., 145 Cal.

App. 4th 790, 52 Cal. Rptr. 3d 376(6th Dist. 2006).

35. Id. 36. 18 U.S.C. § 2701.37. Id. § 2701(a).38. See, e.g., Fraser v. Nationwide Mut.

Ins. Co., 352 F.3d 107, 115 (3d Cir.2003) (holding that monitoring ofemployee’s e-mail by employer was

not a violation of SCA since theinformation was stored on a systemadministered by the employer, asthe service provider).

39. Van Alstyne v. Electronic Scripto-rium Ltd., 560 F.3d 199 (4th Cir.2009).

40. Andre R. Jaglom, Internet Distribu-tion, E-Commerce and OtherComputer Related Issues: CurrentDevelopments in Liability On-Line,Business Methods Patents and Soft-ware Distribution, Licensing andCopyright Protection Questions,SP050 ALI-ABA 541, (Mar. 18 -20, 2009) (“As a general rule,employees do not have an expecta-tion of privacy from their employerin their e-mail or office systems,particularly where the employer hasan announced policy of monitoringe-mail. Employees may lose anobjectively reasonable expectationof privacy in the contents of eventheir own personal computers thatare used with and connected to anemployers’ network) (internal cita-tions omitted); see also Lesser,1001 PLI/PAT at 157, supra note 12.

41. Stengart v. Loving Care Agency,Inc., 990 A.2d 650, 655 (N.J. 2010).

42. Id.43. Lesser, 1001 PLI/PAT at 154-55,

supra note 12.44. Id. at 158.45. Louis J. Papa and Stuart L. Bass,

How Employers Can ProtectThemselves From Liability ForEmployees’ Misuse of Computer,Internet, and E-mail Systems in theWorkPlace, 10 B.U. J. SCI. &TECH. L. 110, 123 (2004) (citationsomitted).

46. Id.47. 529 F.3d 892 (9th Cir. 2008).48. Id. at 897.49. Id. at 903-04. The public employer

required its employees to sign a“Computer Usage, Internet, and E-mail Policy,” which stated that“users should have no expectationof privacy or confidentiality whenusing [such] resources” and that“all network activity” may beaudited without notice to theemployee. Id. at 896.

50. City of Ontario, Cal. v. Quon, 130

S. Ct. 1011 (2009).51. City of Ontario, Cal. v. Quon, No.

08-1332, 2010, 560 U.S. ___, 2010WL 2400087, at *13, (Jun. 17,2010).

52. Id. at *10.53. USA Mobility, Inc. v. Quon, 130 S.

Ct. 1011 (2009).

Paul Alleypracticesemployment law,media law andcommercial liti-gation as apartner in theNorthern Ken-tucky office of

Graydon Head & Ritchey LLP. Headvises and defends employers deal-ing with a variety of legal andemployment issues and works withseveral communications and mediaentities as a member of the firm'smedia, communications and infor-mation group. Previously, Alley wasa lieutenant in the Navy’s JudgeAdvocate General’s Corps. Hereceived his B.A., cum laude, fromMiami University and is a 1994graduate of the University of Ken-tucky College of Law where heserved as an articles editor for theKentucky Law Journal.

Lynda HilsMathews is anassociate in theNorthern Ken-tucky office ofGraydon Head &Ritchey LLP. Ms.Mathews prac-tices in the

areas of complex commercial litiga-tion and employment law. Sheadvises and defends businesses on awide variety of legal and employ-ment issues in state and federalcourts. She earned her J.D. from theUniversity of Louisville School ofLaw in 2002 and received her B.S.from Northern Kentucky University.Ms. Mathews is an active member ofthe Northern Kentucky Bar Associa-tion, and is a former co-chair of theYoung Lawyers Section.


by Todd C. Myers

O n November 21, 2009, theGenetic Information Nondis-crimination Act of 2008 (GINA)

went into effect with the goal of prevent-ing discrimination based on anindividual’s genetic information.1 Priorfederal anti-discrimination laws, includ-ing Title VII of the Civil Rights Act of1964 (Title VII) and the Americans withDisabilities Act of 1990 (ADA), onlyprohibit discrimination based upon per-sonal “traits” such as skin color, race,disability, or sex. Although Congressintended that the ADA would prohibitdiscrimination based upon both extantand inchoate disabilities, genetic abnor-malities may never become disabling.Thus, the potential exists for discrimina-tion to occur because someone mightdevelop a disability. Moreover, geneticscience was in its infancy when prioranti-discrimination laws were enacted.And far less was understood about howbody chemistry dictates human traits,disease, and disabilities.

As genetics developed, Congress alsorecognized the privacy concerns associ-ated with genetic information and thepotential for its misuse. For instance,genetic tests could reveal an employee’s(and his or her family member’s) pre-disposition for Huntington’s disease orcancer. Not only is this health informationintensely private, but this informationcould be used by an employer to makeemployment decisions so as to avoid hav-ing an employee at a high risk forexpensive future medical care. Congress

enacted GINA to protect the confiden-tiality of this information and to preventits misuse.

The purpose of this article is to pro-vide an overview of GINA as it appliesto employers. The article will begin witha brief review of genetics. Then, the arti-cle will discuss the primary aspects ofGINA, including a review of its prohibi-tions and enforcement. Finally, thearticle will discuss strategies employersmust undertake to comply with GINA.Although the article is by no meanscomprehensive, it should serve to famil-iarize legal practitioners with GINA,which could enable one to better assistone’s clients should an issue arise.

Genetics 101A basic understanding of the devel-

opments in genetics is necessary to fullyunderstand this area of law. To beginwith, genetic material is stored inthread-like structures known as chromo-somes, which are located in the nucleusof our cells. A human being has twenty-three pairs of chromosomes in everycell, for a total of forty-six chromo-somes. These chromosomes hold ourgenes. Scientifically speaking, genes areunits of deoxyribonucleic acid (DNA).A human is made up of an estimated20,000 to 25,000 genes. Each gene isresponsible for a particular trait or func-tion, such as eye color or blood type.Collectively, all of an individual’s genesare known as a genome. While genesare responsible for traits, they can alsocause serious diseases or conditionswhen they are defective.2

In 1990, the National Institute ofHealth and the U.S. Department ofEnergy embarked on an ambitious effortknown as the Human Genome Project(HGP).3 The goal of the HGP was toprovide researchers with the ability tofind genetic markers to diseases inhuman DNA, thus giving doctors andresearchers the ability to make earlierdiagnoses, develop cures, and even pre-vent certain diseases and conditions.4

By 2003, the HGP has fueled the dis-covery of more than 1,800 disease genesand paved the way for the developmentof more than 1,000 genetic tests forhuman conditions.5 The NationalInstitute of Health believes that individ-ualized analyses based on each person’sgenome will lead to powerful forms ofpreventive, personalized, and preemp-tive medicine. By tailoringrecommendations to each person’sDNA, healthcare professionals will beable to work with individuals to focusefforts on the specific strategies.6

While these breakthroughs in genet-ics present obvious opportunities toimprove the length and quality of peo-ples’ lives, genetic data also reveal verypersonal details about individuals,including personal information, biologi-cal relationships, and health factors. Asa result, public concerns grew about thepotential misuse of this information.7 Toestablish a national standard and easeconcerns about discrimination that couldprevent, or at least deter, individualsfrom obtaining important testing, Con-gress enacted GINA, which becameeffective on November 21, 2009.8

Genetic DiscriminationSeveral genetically related discrimi-

nation scenarios can arise that tend toexpose an individual to discrimination:(1) abnormal physical traits – height,weight, and size; (2) symptomaticgenetic disease; (3) asymptomatic, late-onset genetic disease; (4) asymptomaticgenetic predisposition to disease; and(5) the unaffected carrying of thegenetic disorder.9

Employers may attempt to use

EMPLOYMENT LAW


genetic information to weed out appli-cants and employees with geneticdisorders or those at a higher risk ofdeveloping certain diseases or condi-tions. For conditions and diseases thathave become symptomatic, the ADAcould likely protect them. On the otherhand, asymptomatic genetic disordersthat could develop later, or simply bepassed on to offspring, are not likelycovered by the ADA. Genetic testingcan provide information to identifythese individuals.

GINALike Title VII, GINA applies to

employers with at least fifteen (15)employees (including state and localgovernments), labor unions, employ-ment agencies, and training programs.10

In general, GINA prohibits: (1) discrim-ination based on employees’ geneticinformation; (2) acquiring employees’genetic information; and (3) disseminat-ing employees’ genetic information.11

A. “Genetic Information” Defined GINA defines the term “genetic infor-

mation” broadly to include “genetic test”results and “genetic services.”12 GINAdefines “genetic test” as “an analysis ofhuman DNA, RNA, chromosomes, pro-teins, or metabolites that detectsgenotypes, mutations, or chromosomalchanges.”13 As such, there are a myriadof medical tests that fall under this defi-nition. The term “genetic information”also includes any “manifestation of adisease or disorder” in the employee’sfamily members.14 Thus, informationabout an individual’s family’s medicalhistory, frequently used to determinewhether an individual is predisposed todeveloping a disease, disorder, or med-ical condition (such as Huntington’sdisease or Lou Gehrig’s disease) isincluded. “Genetic services” are definedas “genetic tests, genetic counseling, orgenetic education.”15

GINA defines “family member”expansively, to include an individual’sdependents and up to fourth-degree rela-tives.16 Information about a member’sage or gender, however, is expresslyexcluded from the definition of “genetic

information” under GINA.17 The EqualEmployment Opportunity Commission(EEOC) has stated in proposed regula-tions that routine tests, such as bloodcounts, cholesterol tests, and liver func-tion tests, are not “genetic tests” underGINA.18 In addition, while testing anindividual’s predisposition for alco-holism or drug use constitutes a“genetic test,” testing for the presenceof drugs and alcohol does not constitutea “genetic test.”19

In the proposed EEOC regulations,the EEOC has recognized that the sub-ject-matter of GINA is beyond the scopeof its expertise. As a result, the EEOChas invited comment by those with suchexpertise regarding the interpretation ofthese definitions.20

B. Prohibited Conduct1. Discrimination, Harassment,

and Retaliation As discussed above, GINA prohibits

discrimination with respect to hiring,discharge, or with respect to compensa-tion, terms, or privileges of employmentbased on genetic information, includingtesting, counseling, and services.21 Sec-ond, GINA makes it unlawful foremployers to acquire genetic informa-tion about an employee or anemployee’s family member, exceptunder limited circumstances.22 Third,employers who acquire or possessgenetic information about an employeeare required to treat the genetic informa-tion as part of a confidential medicalrecord and maintain it separately, just aswith medical records obtained under theADA.23 Employers may only disclosethe information with the employee’swritten consent or in other limited cir-cumstances.

The anti-discrimination provisionprohibits the use of genetic informationin making determinations as to the“terms, conditions, or privileges” ofemployment.24 The prohibition prohibitstreatment of employees motivated bytheir genetics, such as in terms of hir-ing, firing, job assignments, promotions,pay, fringe benefits, or any otherterms.25 Under GINA, this includes neg-atively limiting, segregating, or

classifying employees because ofgenetic information.26 The prohibitionextends beyond the results of genetictests, and includes discrimination basedon the fact that the employee has soughtgenetic counseling or services.27 GINAlikewise prohibits workplace harassmentbased upon genetic information of anemployee or family member.28 Thiscould include hostile work environmentclaims in which employees are sub-jected to unwanted and offensiveconduct by supervisors or other co-workers. Finally, GINA contains ananti-retaliation provision similar to TitleVII.29 The EEOC’s proposed regulationsstate that retaliation claims under GINAwill be analyzed under the same stan-dard as Title VII retaliation claims.30

Thus, Burlington Northern & Santa FeRailway Co. v. White, 548 U.S. 53(2006), will apply. In Burlington, theCourt held that the anti-retaliation pro-vision protects an individual fromconduct, whether related to employmentor not, that a reasonable person wouldfind “materially adverse,” meaning thatthe action “well might have ‘dissuadeda reasonable worker from making orsupporting a charge ofdiscrimination.’”31

2. Acquisition of Genetic InformationGINA prohibits employers from

acquiring genetic information aboutapplicants, employees, or their familymembers.32 It prohibits employers fromintentionally acquiring this informationeither by requesting or requiringgenetic information from applicants,employees, or other individuals, oreven by purchasing it from outsidesources.33 GINA has a few narrowexceptions to legal liability for employ-ers.34 These exceptions includerequesting, requiring, or acquiringgenetic information: (1) inadvertently;(2) through health or genetic servicesoffered to employees as part of a well-ness program; (3) in compliance withthe Family and Medical Leave Act(FMLA) (or similar state law) certifica-tion requirements; (4) throughcommercially or publicly availablesources; (5) through genetic monitoring

of the biological effects of toxic sub-stances in the workplace; and (6) forlaw enforcement purposes.35

One exception worthy of specialattention is that for the inadvertentacquisition of genetic information.36

According to the EEOC, this exceptionmay be triggered, for example, when asupervisor overhears a casual conversa-tion between co-workers in whichfamily medical history is discussed orasks an employee a general question in acasual conversation about the health of afamily member.37 This exception alsoapplies when genetic information is pro-vided to the employer by the employeein support of a request for an accommo-dation under the ADA, or when anemployer asks for medical informationin response to an individual’s request forleave pursuant to a leave policy inde-pendent of a state or federal leave ordisability law, as long as the employer’srequest or requirement is reasonably tai-lored to the particular impairment forwhich leave has been requested.38 Still,the information cannot be the basis for adecision and any decision made after theemployer has certain genetic informationmay be questioned.39

Another important point that shouldbe made is that the EEOC is in theprocess of deciding whether personalwebsites and/or social networking sitesfall within the scope of “publicly avail-able information.”40 If these sites arenot included in this exclusion, GINAcould subject employers to liability forpossessing information learned throughthese sites. This could be particularlydifficult with respect to employees who“connect” with co-workers on socialnetworking sites such as Facebook orMySpace. Care must also be exercisedregarding background checks throughthe use of these types of sites. Asgenetic information could be potentiallyanywhere, any negative employmentdecisions made after learning of suchinformation could call the motivation ofthe employer into question.

3. ConfidentialityGINA prohibits employers from dis-

closing any genetic information

obtained about applicants, employees,or family members once in the posses-sion of the employer.41 There arelimited exceptions for compliance withcourt orders or government investiga-tions.42 Any genetic information mustbe treated like all medical informationso as to be kept in a separate file limit-ing access to only essential employeeswith a need to have the information forclearly defined business purposes.43

C. Enforcement1. Administrative Enforcement

The EEOC is responsible for theenforcement of Title II of GINA.44

Accordingly, employees who believethey have been subjected to genetic dis-crimination in violation of GINA mustfile a charge of discrimination with theEEOC within 180 days of the allegeddiscriminatory act as an initial step toobtaining relief.45 The date of thealleged discriminatory act is generallyheld to be the date an employee is madeaware of a decision involving theemployee, and not when the decision

takes effect.46 Like a Title VII claim, theEEOC will investigate and attempt toconciliate. If that does not work, theEEOC will issue a “right to sue” letter,giving the employee the right to file aprivate lawsuit.

2. Prima Facie CaseAt this point, it has yet to be deter-

mined how courts would considerlawsuits from a proof standpoint. Mostattorneys who practice in this area oflaw are well familiar with the McDon-nell Douglas Corp. v. Greenburden-shifting framework for bringingTitle VII cases hinging on circumstan-tial or indirect evidence.47 UnderMcDonnell Douglas, the plaintiff bearsthe initial burden of presenting a primafacie case. The burden then shifts to theemployer to articulate a non-discrimina-tory reason for the adverse employmentdecision. Finally, the burden shifts backto the employee to prove that theemployer’s articulated reason wasmerely pretext.

The language of 42 U.S.C. § 2000e-


THIS IS AN ADVERTISEMENT


2(m) in Title VII establishes that, in“mixed-motive” cases, consideration ofthe employee’s protected status needonly be a “motivating factor” even ifother non-discriminatory motivationsplayed a role in the decision. The U.S.Supreme Court in Desert Palace, Inc. v.Costa abandoned the McDonnell Dou-glas framework in mixed-motive cases,based on the language of the statute.48

However, the language found in 42U.S.C. § 2000e-2(m) is not found inGINA. As a result, it is difficult to deter-mine whether a mixed-motive GINAcase would be viable and under whatstandard the Court would review it.

Next, it is possible that certain GINAclaims based on family members’genetic information would be moreproperly analyzed like association dis-crimination claims under the ADA.49 Ithas been suggested that associationclaims under the ADA are not amenableto the McDonnell Douglas framework.50

Finally, GINA specifically prohibitsclaims for discrimination based upon

disparate impact.51 Therefore, it appearsthat employees will only be able tobring claims for disparate treatmentunder GINA.

3. First GINA ClaimIn late April 2010, a Fairfield, Con-

necticut woman, Pamela Fink, filedclaims with the EEOC and the Con-necticut Commission on Human Rightsand Opportunities alleging that heremployer violated GINA when it termi-nated her employment on March 25,2010. According to ABC News, aftergenetic tests and family history indi-cated Ms. Fink was at risk for breastcancer, she underwent a preemptivedouble mastectomy.52 She alleges thather termination, which occurred approx-imately five months after her procedure,was the result of her informing heremployer of her genetic test results thatshowed she carried the BRCA2 gene.

Her complaint is believed to be thefirst in the country brought under theemployment provisions of GINA. It will

be watched closely as employers beginto understand the scope of protectionsfor employees under this new law.

D. Available ReliefReliefs for complainants include

rehiring/reinstatement, or other equi-table relief, as well as the issuance ofinjunctions preventing the employerfrom engaging in further discriminatorypractices.53 This relief includes theimposition of compensatory and puni-tive damages.54 Compensatory damagesfor future pecuniary loss, emotionalpain, suffering, inconvenience, mentalanguish, and loss of enjoyment of life,as well as punitive damages, are limitedto a fixed dollar amount based on thenumber of employees the employerhas.55 The maximum damages cap is$300,000.56 GINA also includes theright to a jury trial.57

E. Employer ComplianceGINA is full of potential pitfalls for

employers. It will be essential thatemployers train their administrativestaff, hiring personel, and benefits per-sonnel regarding the obligations createdby GINA. Employers that offer healthinsurance are likely to possess familyhistory information in personnelrecords. Employers should review per-sonnel files and purge them of allinformation that could be considered“genetic information.” Necessary med-ical records must be kept separate frompersonnel files. These would includemedical records and family histories.All performance and conduct reviewprocedures should be reviewed toensure that genetic information is notrequested or contained therein. Thiswould include mention of family healthproblems that could be linked to geneticinformation. Finally, employers shouldupdate their policy manual records toensure compliance with GINA.

Finally, GINA has a posting require-ment. To comply with the law,employers may post the EEOC’sNovember 2009 version of the “EEO isthe Law” poster, or, in the alternative,post the “EEO is the Law” supplementnext to their current poster.58

Missing and Unknown HeirsLocated

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ConclusionGINA is an important new law of

which employers must become familiar.As discussed above, GINA has manytraps by which unwary employers canfind themselves in difficult situations.Since the law and science upon whichGINA is based are new, it will be essen-tial for employers and their lawyers tostay abreast of developments to ensurecompliance.

ENDNOTES1. 42 U.S.C. §§ 2000ff et seq.2. William J. McDavitt, I Dream of

GINA: Understanding the Employ-ment Provisions of the GeneticInformation Nondiscrimination Actof 2008, 54 VILL. L. REV. 91(2009).

3. NAT’L INST. OF HEALTH, U.S. DEP’T

OF HEALTH & HUMAN SERVS.,HUMAN GENOME PROJECT: FACT

SHEET. 4. Id.5. Id.

6. Id.7. See S. Rep. No. 110-48 at 1, 6–8

(2007).8. Id.9. Mark A. Rothstein, Genetic Dis-

crimination in Employment and theAmericans with Disabilities Act, 29HOUS. L. REV. 23, 39-52 (1992).

10. 42 U.S.C. §§ 2000ff(2)(B),2000e(b), 2000e-16(a), 2000e-16c(a); 2 U.S.C. § 1301; 3 U.S.C. §411.

11. 42 U.S.C. §§ 2000ff-1–2000ff-5.12. Id. § 2000ff(4).13. Id. § 2000ff(7).14. Id. § 2000ff(4).15. Id. § 2000ff(6).16. Id. § 2000ff(3).17. Id. § 2000ff(4)(C).18. Regulations Under the Genetic

Information Nondiscrimination Actof 2008, 74 Fed. Reg. 9059 (pro-posed Mar. 2, 2009) (to be codifiedat 29 CFR § 1635).

19. Id.20. Id. at 9056.21. 42 U.S.C. §§ 2000ff-1—2000ff-4.22. Id.23. Id. § 2000ff-5.24. Id. § 2000ff-1.25. See id.26. Id. § 2000ff-2.27. Id. § 2000ff-1.28. See EQUAL EMPLOYMENT OPPORTU-

NITY COMM’N, BACKGROUND

INFORMATION FOR EEOC NOTICE OF

PROPOSED RULEMAKING ON TITLE IIOF THE GENETIC INFORMATION

NONDISCRIMINATION ACT OF 2008 2(2009), http://www.eeoc.gov/policy/docs/quanda_geneticinfo.html.

29. 42 U.S.C. § 2000ff-6(f).30. Regulations Under the Genetic

Information Nondiscrimination Actof 2008, 74 Fed. Reg. 9060–61(proposed Mar. 2, 2009) (to be cod-ified at 29 CFR § 1635).

31. Burlington Northern & Santa FeRy. Co. v. White, 548 U.S. 53, 68(2006) (quoting Rochon v. Gonza-les, 438 F.3d 1211, 1219 (D.C. Cir.2006)).

32. 42 U.S.C. § 2000ff-1–2000ff-4. 33. Id.34. Id.

35. Id.36. Id.37. Regulations Under the Genetic

Information Nondiscrimination Actof 2008, 74 Fed. Reg. 9061 (pro-posed Mar. 2, 2009) (to be codifiedat 29 CFR § 1635).

38. Id. at 9061–64. 39. Id. at 9057, 9059, 9060.40. Id. at 9063.41. 42 U.S.C. § 2000ff-5.42. Id. § 2000ff-5(b).43. Id. § 2000ff-5(a).44. Id. § 2000ff-6.45. Id. (incorporating powers and

remedies in Title VII). 46. See, e.g., Mull v. ARCO Durethene

Plastics, Inc., 784 F.2d 284 (7th Cir.1986) (interpreting the Age Discr-mination in Employment Act);Stoller v. Marsh, 682 F.2d 971(D.C. Cir. 1982) (interpreting TitleVII). It is quite reasonable toexpect GINA to be interpreted inthe same fashion as these otherantidiscrimination statutes.

47. McDonnell Douglas Corp. v.Green, 411 U.S. 792 (1973).

48. Desert Palace, Inc. v. Costa, 539U.S. 90 (2003).

49. 42 U.S.C. § 12112(b)(4).50. See Dewitt v. Proctor Hosp., 517

F.3d 944 (7th Cir. 2008) (suggest-ing the McDonnell Douglasframework should be tweaked toallow evidence of economic motivein plaintiff’s prima facie case).

51. 42 U.S.C. § 2000ff-7. 52. Emily Friedman, Pamela Fink Says

She Was Fired After Getting a Dou-ble Mastectomy To Prevent BreastCancer, ABC NEWS, Apr. 30, 2010,http://abcnews.go.com/Health/OnCallPlusBreastCancerNews/pamela-fink-fired-testing-positive-breast-cancer-gene/story?id=10510163

53. 42 U.S.C. § 2000ff-6; Id.§ 2000e etseq.

54. Id. § 2000ff-6; Id.§ 1981a.55. Id. 56. Id.57. Id.58. Both documents are available at

http://www1.eeoc.gov/employers/poster.cfm.

Todd C. Myers isa partner in theLexington officeof Bowles Riceand focuses hispractice onlitigation,employment law,and workplace

safety. Mr. Myers has representedemployers in a variety of matters instate and federal courts, includingdiscrimination claims, Federal MineSafety and Health (MSHA) litigation,and workers compensation. He alsohas an active general litigation prac-tice including insurance defense,professional negligence, constructionlitigation, coverage disputes, andcommercial litigation. Mr. Myersreceived a B.A. in business admin-istration from Transylvania Universityin 1997. He earned his J.D., cumlaude, in 2000 from NKU ChaseCollege of Law. Mr. Myers has writ-ten, lectured, and trained employersregarding various issues in employ-ment law.



By Stephen A. Simon

O n a basketball court, the refereeblows the whistle when a playercommits a foul. The fairness and

the outcome of the game would be jeop-ardized if the referee feared thatblowing the whistle might cost him hisjob. The same is true for governmentemployees who blow the whistle ontheir employers: without adequate legalprotection for these employees, whistle-blowers will not come forward and theproper functioning of our governmentwill suffer.

In Kentucky, government employeeswho blow the whistle on their employ-ers are protected from reprisal under theKentucky Whistleblower Act.1 Ken-tucky is in the overwhelming majorityof states that provide statutory protec-tion for whistleblowers, as only threestates do not have such laws on thebooks.2 Like most whistleblowing laws,the Act was designed to “protectemployees who possess knowledge ofwrongdoing that is concealed or notpublicly known, and who step forwardto help uncover and disclose that infor-mation.”3

Specifically, the Act protects employ-ees who report any “facts orinformation” related to an “actual orsuspected” violation by a publicemployer of any federal, state or locallaw. The Act also protects employeeswho expose “mismanagement, waste,fraud, abuse of authority, or a substan-tial and specific danger to public health

or safety.”4 No employer can use its“official authority,” or threaten to use itsauthority, that would in any way “dis-courage” or “interfere” with the makingof a report.5

Although the Act was enacted overtwo decades ago in 1986, Kentuckycourts in the last several years haveissued numerous opinions that have, insome ways, expanded the reach of theAct and, in other ways, limited the pro-tection it affords employees. Forattorneys who represent employers oremployees in the public sector, it is crit-ical to understand the scope of thisstatute.

Who is an “Employer” Under the Act?

As the statutory language makesplain, the Act does not protect private-sector employees. This statutoryprotection only extends to employeeswho work for the Commonwealth ofKentucky “or any of its political subdi-visions.”6

The question then is what constitutesa “political subdivision.” The termclearly applies to county government,and Kentucky courts have ruled that anarea planning commission and waterdistricts fit the definition too.7

The Act is silent on whether munici-palities are considered a “politicalsubdivision.”8 This year, in Wilson vs.Central City, 9 the Kentucky Court ofAppeals ruled that the absence of“municipalities” in the Act reflected thelegislature’s intent that municipal

employers should not be covered. Rely-ing on two prior federal district courtdecisions, the court of appeals reasonedthat the absence of “municipalities” wassignificant since the legislature in sev-eral other Kentucky statutes specificallyreferenced municipalities, separatelyfrom “political subdivisions” or theCommonwealth itself. The court alsonoted that municipalities are different incharacter to the Commonwealth and itspolitical subdivisions in that municipali-ties are not entitled to sovereignimmunity.10

However, in Kindle v. City of Jeffer-sontown, No. 09-5119 (6th Cir. March15, 2010), the United States Court ofAppeals for the Sixth Circuit found thatmunicipalities are covered by the Act.Reversing the district court’s contraryruling, which the Kentucky of Court ofAppeals in Wilson had cited, the SixthCircuit held that the Kentucky SupremeCourt had already addressed this issue,albeit in an indirect way. In Consoli-dated Infrastructure ManagementAuthority, Inc. v. Allen, 269 S.W.3d 852(Ky. 2008), a whistleblowing employeesued his former employer, which was apublic entity that administered the waterand sewer services for two cities, Rus-sellville and Auburn. After the plaintiffwon a jury award at trial, the entity dis-solved and was “absorbed” byRussellville and Auburn. In denyingplaintiff’s cross-appeal, which con-cerned whether the defendant had topost a supersedeas bond after it dis-solved, the court held that the “judgmentcontinues to be enforceable against” thetwo cities. Thus, the Sixth Circuit readAllen to mean that the Supreme Courthad “approved of applying the Whistle-blower Act to a municipality upholdingthe jury award.”11

The Act also is silent on whether indi-vidual supervisors or managers can beheld liable for reprisals against their sub-ordinate employees. Unlike the issueregarding municipalities, the KentuckySupreme Court has squarely resolved thisissue and found that individuals cannotbe sued under the Act, despite the Act’s

EMPLOYMENT LAW


definition of “employer” that expresslyincludes “any person authorized to act onbehalf of the [government] with respectto formulation of policy or the supervi-sion, in a managerial capacity, ofsubordinate employees.”12 The KentuckySupreme Court ruled in Cabinet forFamilies and Children v. Cummings13

that this language was intended only toincorporate the doctrine of respondeatsuperior liability – i.e., to ensure thatgovernment entities can be held liable forretaliatory acts committed by their indi-vidual supervisors or managers. In sofinding, the Kentucky Supreme Courtfollowed the lead of numerous federalcircuit courts of appeal, which have like-wise interpreted Title VII of the 1964Civil Rights Act and other federal anti-discrimination statutes that similarlydefine “employer.”14

In Cummings, the Kentucky SupremeCourt distinguished the WhistleblowerAct from Kentucky’s Civil Rights Act,which the Court previously has helddoes permit individual liability, as thelatter statute defines “employer” as “one(1) or more individuals” and prohibitsretaliation by “two (2) or more per-sons.”15 Given the Kentucky SupremeCourt’s rulings on these two statutes,whether an individual supervisor can beheld liable for retaliation in Kentuckydepends on the nature of the employee’scomplaint that preceded the retaliatoryact. For example, a supervisor who firesan employee for complaining about sex-ual harassment can be held individuallyliable, but that same supervisor wouldnot be held liable if the employee hadcomplained, for example, that heremployer was wasting tax dollars.

Nonetheless, supervisors or managerswho retaliate against whistleblowersshould beware. As the Court noted inCummings, the Act does provide crimi-nal penalties against individuals. Anyperson who “willfully violates any ofthe provisions” of the Act can be con-victed of a “Class A misdemeanor.”16

The Act Provides Ample Remedies and Shifts the

Burden of Proof to the EmployerThe Act provides a full array of

remedies. Under K.R.S. § 61.990(4), theemployee may seek injunctive relief,back pay, reinstatement (including rein-statement of “fringe benefits andseniority rights”), and exemplary orpunitive damages. In addition, the courtmay award the costs of litigation,including “reasonable attorney fees” andwitness fees.17

Regarding the tolling period for filinga lawsuit, the Act has a wrinkle. In a sep-arate provision, the Act provides theemployee must “bring a civil action forappropriate injunctive relief or punitivedamages . . . .” within ninety days of theviolation. KRS § 61.103(2). This provi-sion makes no reference to the otherremedies spelled out above, and the Actcontains no other provision referencing atolling period. Thus, in Allen,18 the Ken-tucky Supreme Court held that theninety-day statute of limitations inK.R.S. § 61.103(2) applies only to thewhistleblower’s claim for injunctiverelief or punitive damages.19 (Legislationwas introduced in January of this yearthat would extend the tolling period fromninety to 180 days, among other expan-sions of the law, but the bill died beforethe end of the legislative session.)20

Although not spelled out by the Court,

the applicable tolling period for theremaining relief set forth in the Act ispresumably governed by Kentucky’sgeneral five-year statute of limitations.21

To obtain any of the remedies setforth in the Act, the whistleblower must,of course, first prove her case. Underthe Act, a prima facie case of retaliationhas the following elements:

In addition, the plaintiff must demon-strate, by a preponderance of theevidence, that the disclosure or reportwas a “contributing factor” in theemployer’s personnel action.23 Peramendments to the Act in 1993, upon

(1) the employer is an officer ofthe state; (2) the employee isemployed by the state; (3) theemployee made or attempted tomake a good faith report or disclo-sure of a suspected violation ofstate or local law to an appropriatebody or authority; and (4) theemployer took action or threatenedto take action to discourage theemployee from making such a dis-closure or to punish the employeefor making such a disclosure.22

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the plaintiff’s establishing a prima faciecase of retaliation, the burden of proofshifts to the employer, who to avoid lia-bility must prove by clear andconvincing evidence that the disclosurewas not a material fact in the personnelaction.24

An employee need not make anactual report or disclosure of informa-tion to enjoy the protections of the Act.A threat to make such a report or disclo-sure is sufficient.25 Also, the employeeenjoys the protection of the Act if hemakes a report or disclosure as part of alawsuit against the government.

But an employee must tread care-fully here. Allegations in a lawsuit maynot constitute protected whistleblowingunder the Act unless the lawsuit raisesfacts that are not publicly known. InDavidson v. Kentucky Department ofMilitary Affairs, an employee, David-son, initiated a lawsuit against his

employer, the Kentucky Department ofMilitary Affairs, for allegedly retaliat-ing against him for a prior lawsuit hisformer company had brought againstthe Kentucky Cabinet for NaturalResources and Environmental Protec-tion (NREPC).26 In protesting fines thatNREPC had levied against his com-pany, Davidson had alleged that theagency’s procedures were an “abuse ofauthority” and violated state law. Thecourt held that this was not whistle-blowing activity because Davidson “didnot report anything about these proce-dures which was not already known,such as secretive agency procedures.”27

Likewise, the Kentucky Supreme Courtfound in an earlier case, Boykins v.Housing Authority of Louisville,28 thatthe plaintiff was not a whistleblowerunder the Act because her lawsuitagainst her employer, resulting from anaccident her daughter suffered on theemployer’s property, was a “simplenegligence action” and did not consti-tute a “report of information regardingany alleged mismanagement or endan-germent of public health and safety.”29

To Enjoy the Act’s Protection, the Whistleblower’s Complaint Must

Be Made in “Good Faith”From the perspective of a well-mean-

ing employee who is consideringblowing the whistle on her employer,the real peril in the Act lies in itsrequirement that the report or disclosuremust be in “good faith.” The would-bewhistleblower may not have all the per-tinent facts at her disposal beforemaking a complaint – and ultimately herallegations may be proven wrong. Willshe still enjoy the protections of theAct? Fortunately for employees Ken-tucky courts typically have answered inthe affirmative.

In a decision issued earlier this year,the Court of Appeals in Jones v. OldhamCounty Sheriff’s Department30 reverseda circuit court’s grant of summary judg-ment against a plaintiff for purportedlynot satisfying the good faith require-ment. The whistleblower, a deputysheriff, had passed along to his superiora written list, which he did not read

first, that his colleagues had authoredand which identified examples of inap-propriate acts by their chief deputysheriff.31 The court noted that while theplaintiff had not actually authored thelist, he had seen earlier drafts and evenhad provided his colleagues with hisown examples of misconduct by thechief deputy sheriff. Characterizing theissue of good faith as a “close one,” thecourt of appeals reversed the circuitcourt’s ruling and held that “as a generalrule, a determination of whether a partyacted in good faith is a question of factthat does not lend itself well to sum-mary judgment.”32

Likewise, the Court of Appeals ruledlast year in Thornton v. Office of theFayette County Attorney33 that even awhistleblower’s complaint based solelyon second-hand, hearsay informationcould be considered to be in good faith.However, on the facts of this case theemployee failed to satisfy this require-ment. The whistleblower was a part-timeemployee of the Fayette County Attor-ney’s office who complained to electedofficials and several state agencies abouther supervisor regarding questionablebilling practices. Because the plaintiffperformed almost all of her work physi-cally outside of the office, it was plainthat she learned of these alleged mis-deeds on a hearsay basis – specifically,from the supervisor’s administrativeassistant, who also complained to certainpublic officials. The court rejected a cat-egorical rule that would not permithearsay evidence to satisfy the goodfaith requirement, but the court addedthat the complaint must be based on a“reasonable belief of accuracy.”34 Focus-ing on the fact that the plaintiff “madeno attempt to corroborate or discoverfirsthand information about the sus-pected activities” – and given that theplaintiff knew these allegations alreadywere being reported to the authorities byanother employee – the court affirmedthe grant of summary judgment againstthe plaintiff, finding her complaint wasnot made in good faith.35

Interestingly, whether the employee’smotive in making the complaint is rele-vant to the issue of good faith has not

Stephen A.Simon is apartner atTobias, Torchia& Simon. Hispractice isexclusivelydevoted to therepresentation

of individuals in employment-related disputes and litigation,which includes matters involvingwhistleblowers and claims of dis-crimination based on age, race, sex,and pregnancy, among many othertypes of claims. He is the currentvice-chair of the Cincinnati BarAssociation’s labor and employmentcommittee and also serves on theboard of directors of the Ohio affili-ate of the National EmploymentLawyers Association. Mr. Simon reg-ularly speaks to local groups andassociations on the subject ofemployee's legal rights and respon-sibilities, and he served as an editorfor two chapters of an ABA treatiseon employment discrimination. Heproudly began his legal career in1997 at a Kentucky law firm andcontinues to represent clients onboth sides of the Ohio River.

been squarely resolved by the courts. InDavidson v. Kentucky Department ofMilitary Affairs,36 the Court of Appealsdeclined to decide whether “anemployee’s motivation for making areport” – i.e., motivated “purely by asincere desire to expose the illegality”or driven by “self-serving interest” – isrelevant to the good faith requirementunder the Act.

The Gaines Decision and the Future of the Whistleblower ActFinally, in a significant expansion of

the Act, the Kentucky Supreme Courtruled in Workforce Development Cabinetv. Gaines37 that an employee who makesa complaint (otherwise covered by theAct) to his own employer is protectedunder the Act. The Act lists specificgovernmental entities – that do notspecifically include one’s own employer– to whom an employee must complainto be protected from reprisal, as follows:

Holding that the Act “must be liber-ally construed to serve [its] purpose” ofprotecting whistleblowers, the Court, ina 4-3 decision, interpreted the phrase,“any other appropriate body or author-ity,” to include the whistleblower’s ownemployer.39

The majority in Gaines did notaccept the defendant’s argument thatthe agencies listed in the Act were onlyones with “investigatory authority forwrongdoing by public agencies” and,therefore, that “any other appropriatebody or authority” must necessarilyonly include agencies of that charac-ter.40 The majority noted that “an

employee” of these agencies, whocould receive such a complaint, did nothave the authority to investigate. Themajority reasoned that the list encom-passed those who had the authority to“remedy or report” the complaint ofmisconduct, which meant, in turn, thatthe phrase “any other appropriate bodyor authority” should encompass anypublic body or authority who carriesthis “remedy or report” authority.Accordingly, the majority held that thisstatutory phrase included the whistle-blower’s own employer because“[g]enerally, the most obvious publicbody with the power to remedy per-ceived misconduct is the employee’sown agency . . . .”41 The majority alsoreasoned that a contrary reading of thestatute would “reward an employeewho makes a report to an ‘appropriate’outside entity, but punish the employeewho reports internally.”42 The dissent-ing justices accused the majority ofessentially rewriting the Act to add “theindividual’s employer” as an eighth

entity in K.R.S. § 61.102.43

From a public employer’s perspec-tive, the implication of Gaines is thatany complaint by a public employee tohis or her employer could now consti-tute a “report” or “disclosure” under theAct. The Gaines majority discounted thescenario where a public employee nefar-iously seeks the protection of the Act bycomplaining to his employer about, forexample, “inefficient paper recycling”or “excessive use of paper clips.”44 Themajority contended that the employeewould not be covered under the Actbecause such a complaint would not sat-isfy the “good faith” requirement.45 Asthe preceding discussion demonstrates,however, the courts’ interpretation of“good faith” is a work-in-progress. Thecaselaw to date suggests that anemployee’s complaint about a triflingmatter, like “excessive use of paperclips,” will not be deemed bad faith as amatter of law. So long as the employeereasonably believes his complaint aboutpaper clips is accurate, that may be suf-

[T]he Kentucky Legislative EthicsCommission, the Attorney General,the Auditor of Public Accounts, theGeneral Assembly of the Common-wealth of Kentucky or any of itsmembers or employees, the Leg-islative Research Commission orany of its committees, members oremployees, the judiciary or anymember or employee of the judici-ary, any law enforcement agency orits employees, or any other appro-priate body or authority . . . .38



ficient to show good faith.46

On the other hand, if the Gainesholding leads to a substantial number ofcases where public employees seek pro-tection under the Act in connectionwith their filing internal complaintsabout paper clip usage and the like, itmay trigger Kentucky courts to take amore restrictive approach to the “goodfaith” requirement. In particular, courtsmay ultimately decide that motive isrelevant when considering theemployee’s good faith under the Act.This would be an unfortunate develop-ment because if the good faithrequirement is unduly restricted, thenpublic employees may be wary ofreporting government waste or viola-tions of the law they observe in theirworkplaces.

In sum, it is critical that the Act con-tinue to protect public employees who –like referees in basketball – blow thewhistle when they see a foul.

ENDNOTES1. K.R.S. § 61.101, et seq. This article

does not address whistleblowing byprivate-sector employees, who gen-erally enjoy far less protectionunder the common law. See, e.g.,Boykins v. Housing Auth. ofLouisville, 842 S.W.2d 527 (Ky.1992).

2. Thornton v. Office of FayetteCounty Attorney, 292 S.W.2d 324,330 (Ky. App. 2009) (citing 96 Cal.L. Rev. 1633, 1641 (2008)).

3. Workforce Dev. Cab. v. Gaines, 276S.W.3d 789, 792 (Ky. 2008).

4. K.R.S. § 61.102(1).5. Id.6. Id. § 61.101(2).7. Northern Ky. Area Planning

Comm’n v. Gordon, No. 2008-CA-001104-MR (Ky. Ct. App. Jan.15, 2010); Davis v. Powell’s ValleyWater Dist., 920 S.W.2d 75 (Ky.Ct. App. 1995).

8. K.R.S. § 61.101(2).9. No. 2008-CA-001547-MR (Ky. Ct.

App. Jan. 15, 2010).10. Id.11. Kindle v. City of Jeffersontown,

Ky., 2010 WL 891305, at *3-4 (6thCir. Mar. 15, 2010) (petition forrehearing en banc denied June 16,2010).

12. K.R.S. § 61.101(3).13. 163 S.W.3d 425, 431-33 (Ky.

2005).14. Id. at 431-32; see, e.g., Wathen v.

Gen’l Elec. Co., 115 F.3d 400, 406(6th Cir.

1997).15. K.R.S. §§ 344.010(1), 344.280;

Cabinet for Families and Childrenv. Cummings, 163 S.W.3d at 432;Brooks v. Lexington-Fayette UrbanCounty Hous. Auth., 132 S.W.3d790 (Ky. 2004).

16. K.R.S. § 61.990(3).17. Id. § 61.990(4).18. 269 S.W.3d at 855-5619. Id.20. HB 185.21. K.R.S. § 413.120(2) (governs

actions “created by statute, whenno other time is fixed by thestatute”).

22. Id. § 61.103(3).23. Id; Davidson v. Ky. Dep’t of Mili-

tary Affairs, 152 S.W.3d 247, 251(Ky. Ct. App. 2004).

24. K.R.S. § 61.103(3); Ky. Dep’t ofAgric. v. Vinson, 30 S.W.3d 162,168 (Ky. 2000).

25. Allen, 269 S.W. 3d at 857.26. Davidson, 152 S.W.3d at 250.27. Id. at 255-56.28. 842 S.W.2d 527 (Ky. 1992).29. Id. at 529.30. No. 2009-CA-000350-MR (Ky. Ct.

App., Apr. 16, 2010).31. Id.32. Id.33. 292 S.W.3d 324, 331 (Ky. Ct. App.

2009).34. Id. at 330-32.35. Id.36. 152 S.W.3d at 254-55.37. Gaines, 276 S.W.3d at 792-94.38. K.R.S. § 61.102(1).39. 276 S.W.3d at 793-94.40. Id. at 793.41. Id.42. Id. at 793-94.43. Id. at 797-98.44. Id. at 794.45. Id.46. See Thornton, 292 S.W. 3d at 331.

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Writers are often advised to avoid thepassive voice. But legal writers

may wonder just what the passive voiceis, whether it is always wrong, and howto change it to the active voice. Here’sthe straight scoop on those questions.

Recognizing the passive voice. Thepassive voice is a verb form with twoidentifying characteristics.

First, the subject of a passive verb isthe receiver, not the doer, of the action,as in this example: “The dog waskicked.” The reader understands that thedog was the receiver of the action—thekicking—and that the actor is not identi-fied. That’s why the voice is calledpassive. These less vivid examplesmight occur in legal writing:

a. The brief was filed on time. b. The argument will be built on two

theories.c. An incorrect analysis of the pend-

ing issue has been advanced herein. In each example, the subject of the

sentence is the receiver of the action,and the actor is not identified. Sentencec is a classic example of the awkward,abstruse writing that fuels so much criti-cism of lawyers.

Second, every passive verb containsat least two parts: a form of the verb tobe (be, is, am, are, was, were, or been)and a past participle. Note that the verbin sentence c includes three words; two,has and been, are auxiliaries to the mainverb, advanced. Even though it is a littlemore complex than a, example c doescontain the elements of the passivevoice: a form of the verb to be and apast participle, here formed by adding–ed, as with other regular English verbs.(Example b contains an irregular pastparticiple, built.)

Don’t be misled into thinking that

any verb containing a form of to be ispassive. These sentences are in theactive voice:

d. The defendant’s brief is persuasive.e. That statute was not in the code at

the time of the crime.Each of these sentences includes a

form of to be, but neither includes therequired past participle. And althoughthe sentences express states of beinginstead of vivid actions like kicking, thesubjects are not receivers but “actors” ina broad sense of the term. The verbs inthese examples may be a bit bland, butthey are not passive.

And do not confuse the past tensewith the passive voice. Although exam-ple e is in the past tense, it is in theactive voice.

Problems with the passive voice.The passive voice causes two problems.First, it tends to be vague, and vague-ness is seldom a virtue in legaldocuments. Second, it’s wordier. Awriter who wants to identify an actor ina passive sentence must use a cumber-some prepositional phrase: The briefwas filed on time by James. Contrastthat with the more streamlined activeversion: James filed the brief on time.Using the active voice will often resultin crisper sentences like this one.

When the passive voice is appro-priate. The passive voice is not alwayswrong. It’s a standard English form thatappears in some venerable quotations:those who mourn shall be comforted; allmen are created equal; a player strutsand frets his hour upon the stage andthen is heard no more. Whether to usethe passive is a question of judgment.The following are some situationswhere an effective writer might choosethe passive voice.

1. The actor is unknown or unimpor-tant. A writer might state, “Five hundredbriefs were filed with the court lastmonth.” Adding the vague people willnot improve the sentence: “People filedfive hundred briefs with the court lastmonth.” The addition actually weakensthe sentence by introducing a vaguenoun and moving the important wordbriefs from the position of emphasisnear the beginning. It’s better to skipnaming the unknown actors here.

2. The writer wants to deflect atten-tion from the actor. A lawyer mightwrite, “Then Smith was shot.” This iseffective where a client has been accusedof the shooting but has not been posi-tively identified. The passive deflectsattention from the accused client.

3. The passive voice will aid continu-ity. The passive voice’s structure canhelp link ideas:

f. The court held that a key elementof the tort is intent. Intent was definedby the appellate courts in a successionof cases over the next five years.

Here, the passive structure puts thekey word intent in the position ofemphasis at the beginning of the secondsentence, effectively linking it to thefirst one.

Changing a verb from the passiveto the active voice. The first step indealing with the passive voice is todetermine whether a verb is active orpassive, using the above guidelines. If itis passive, mentally change it into theactive voice. To do this, identify the trueactor and put that noun near the begin-ning of the sentence. For the sentence“The dog was kicked,” if a child did thekicking, the active version would be“The child kicked the dog.” The activeversion of example c above could bethis leaner sentence: “The lawyer ana-lyzed the issue incorrectly.”

Then decide whether the new versionis better—more direct, crisper, and lessawkward. If it is, consider whether youhave a good reason for using the passivevoice. If you don’t, make the change tothe active voice.

Putting most of your verbs in theactive voice will strengthen your writ-ing. By the way, some of the verbs inthis article (apart from the examples)are in the passive voice. You can deter-mine whether they are effective. Afterall, the decision is ultimately a matterof judgment.

by Judith D. Fischer Associate Professor, University of Louisville School of Law

EFFECTIVE LEGAL WRITING

TThhee SSttrraaiigghhtt SSccoooopp oonn tthhee PPaassssiivvee VVooiiccee


W e’ve reached a new level of con-nectedness in this wireless age.

The new practices entailed warrant acontinuous review of the benefits, risks,and regulatory conflicts the new alwayspresent. Many of problems facing thenew data connectivity might have beenavoided with early consideration. Butsuch is life.

ConnectivitySmartphones, netbooks, and tablet

computers easily hook us all togetherwherever we go. Databases and onlinesystems for research, litigation manage-ment, and work with the courts arepervasive, as are web services, datacommunications, and social networkingsites. Information is always at our fin-gertips for a relatively small price ofadmission. For information profession-als, pure and mixed, it enhancesefficiency and power. The motiondocket may be changed forever…

It offers that same power to civiliansthat, in the past, might defer to the “pro-fessionals.”

Is this a good thing? Does it makefor better communities, whether of pro-fessionals, guildsmen, commoninterests, or neighbors? This wouldseem to be a self-evident “yes!” But dowe really know? Is this a romanticnotion from the benefits of knowledgeand understanding? Is it anecdotal anal-ysis from the experiences of ourselvesor others? Is there evidence-based anal-ysis to support this conclusion and thepublic policies that might follow fromit?

Consider the doomsday headline ofthe moment, “Is Google Making UsStupid?”

Is this mere hyperbole?

Lawyers in the LeadLawyers as information professionals

were some of the first significant bene-ficiaries of highly distributed andnetworked information services,whether word processing or Lexis legalresearch. The information-intensivenature of our work, our unique trainingin information practices and the highly-distributed, privatized nature of legalpractice in the U.S. have contributed tothis. It makes us a key, avant-garde casestudy for what will come next.Beginning with the risks.

The legal profession is fortunate tohave clear guidelines of professionalconduct that have a focus on informa-tion. An issue, though, is that theseguidelines are conservatively developedbased on historical practices with tradi-tional technologies. For example, thepropriety of lawyers using email was anearly issue that some feel has been onlypartially addressed.

There may even be the general ques-tion as to whether there is any generalpedagogy on the right use of theseinformation technologies but rather anad hoc, self-teaching practice we adopt.From that not-so-firm ground we findthe flaws and fix them on an ad hocbasis.

This looks a lot like the current stateof technical information security gener-ally, itself the focus of criticism as alosing battle against increasingly moti-vated cyber thieves. But perhaps it canbuild a foundation for good practice.Where to begin?

Given the fifty-state systems oflawyer regulation, surprising conclu-sions by bar disciplinary authoritieskeep cropping up. The rules regardingmeta-data radically vary from one state

to the next, creating a minefield formulti-state practice. Any conduct inthese areas should be considered in lightof the rules of professional responsibil-ity, particularly the advertising rules.

A primer on new issues has beenwritten by David Hrick of MercerUniversity School of Law. He discussesparticular areas of concern, new andrecurring:

• Webpage Links and Commentsrelating to lawyers or their web-sites

• Lawyer and Judge activities withsocial networking sites

• Unsolicited emails• Mis-sent emails• Online investigative practices, and• Covert tracking and monitoring of

lawyer’s online activities It is worth a read. See Hricik, David

C., Communications and the Internet:Facebook, E-Mail, and Beyond (January1, 2010). Available at SSRN:http://ssrn.com/abstract=1557033 lastvisited June 28, 2010.

Yet this all still shows an evolvingset of practices that may still conflictwith the professional rules.

City of Ontario, California v. Quon, 560 U.S. ___ (2010)

The U.S. Supreme Court recentlyaddressed certain privacy issues relatingto electronic information in City ofOntario v. Quon. Quon’s holding nar-rowly focused on the privacyexpectations of a governmentalemployee and reasonableness of asearch by a governmental employer ofelectronic data. The Supreme Court andthe concurring opinions discussed issuesof reasonable expectations of privacy inelectronic systems that may impact priv-

Michael Losavio

The Information Polity – Connectivity and CommunityPart 1

SHOP TALK

ilege and electronic discovery. And,citing Olmstead and Katz, it noted therisks inherent in analysis relating toevolving technologies:

The Court must proceed with carewhen considering the whole con-cept of privacy expectations incommunications made on electronicequipment owned by a governmentemployer. The judiciary risks errorby elaborating too fully on theFourth Amendment implications ofemerging technology before its rolein society has become clear. See,e.g., Olmstead v. United States, 277

U. S. 438 (1928), overruled by Katzv. United States, 389 U. S. 347, 353(1967). In Katz, the Court relied onits own knowledge and experienceto conclude that there is a reason-able expectation of privacy in atelephone booth. See id., at360–361 (Harlan, J., concurring). Itis not so clear that courts at presentare on so sure a ground. Prudencecounsels caution before the facts inthe instant case are used to establishfar-reaching premises that definethe existence, and extent, of privacyexpectations enjoyed by employeeswhen using employer-provided

communication devices. Quon, at 10 http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf , last visited June 28,2010.

Prudent advice for review of the useof these technologies that have been souseful in the administration of justiceand will continue to be so.

In Part II, we’ll examine these tech-nologies as part of community-creation,including the role of the lawyer in thecommunity. If you’ve thoughts on this,please send them on [email protected].


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

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

CLICKwww.butlerbooks.com


COMMONWEALTH OF KENTUCKY

JUDICIAL CONDUCT COMMISSION

PRIVATE REPRIMAND

The Commission issues thisprivate reprimand to a judge for viola-tion of SCR 4.300, the Code of JudicialConduct.

The Commission determinedafter an informal investigation that thejudge shared ownership in two parcelsof real estate with a lawyer who prac-ticed before the judge’s court, and hada landlord-tenant relationship with thelawyer as to a third property. Thejudge did not disqualify in cases thelawyer practiced in the judge’s court,and did not disclose the shared propertyinterests.

The Commission concludesthat the judge violated Canon 1 by fail-ing to observe high standards of con-duct so that the integrity and independ-ence of the judiciary will be preserved;Canon 2 by failing to act at all times ina manner that promotes public confi-dence in the integrity and impartiality ofthe judiciary; Canon 3E(1)(a) by failingto disqualify in proceedings in whichthe judge’s impartiality might reason-ably be questioned; and Canon 4D(1)(b)by engaging in financial activities thatinvolved the judge in a continuing busi-ness relationship with a lawyer whopracticed before the judge’s court.

In issuing this private repri-mand, the Commission duly consideredthat there was no evidence of a patternof such conduct, that the property con-nections with the lawyer no longerexist, and that the judge fully cooperat-ed in the investigation.

DATE: 3-31 , 2010

STEPHEN D. WOLNITZEK, CHAIR


COMMONWEALTH OF KENTUCKYJUDICIAL CONDUCT COMMISSION

IN THE MATTER OF:ROGER P. ELLIOTTSENIOR STATUS SPECIAL JUDGE

ORDER OF PUBLIC REPRIMAND

Judge Roger P. Elliott, a retired Judge, and a participant in the Senior Status Program for Special Judges, has waived formalproceedings and has agreed to the entry of this Order by the Commission. Judge Elliott has also agreed to resign from the SeniorStatus Judge Program and not seek to re-enter that Program.

Before his retirement, Judge Elliott was District Judge for the 29th Judicial District consisting of Adair and Casey Counties.At the times of the events referred to in this Order, Judge Elliott was a Senior Status Judge. However, at a point in time after theinstitution of criminal proceedings regarding Judge Elliot, he was suspended from the Senior Status Program.

The Pulaski County criminal proceeding, 09-CR-121, was resolved by Judge Elliott’s entry of an Alford plea to the Indictmentand participation in pretrial diversion. The Indictment was for Labor Already Rendered concerning an insufficient funds check,a Class D felony. Pursuant to the Alford plea, Judge Elliott asserted his innocence to the allegations of criminal conduct and pur-suant to the pretrial diversion portion of the plea, at the expiration of the period of pretrial diversion the Indictment will be dis-missed.

On August 28, 2009, Judge Elliott was indicted in Jessamine Circuit Court Case No. 09-CR-00187 for Theft by Deception foran insufficient funds check, a Class D felony. That Indictment was dismissed on September 28, 2009, after Judge Elliott maderestitution.

Even though the Pulaski County conviction is subject to being set aside and expunged, the case has been a matter of publicrecord and will continue to be so until an Order of Expungement is entered.

Judge Elliott through his attorney filed answers denying the charges. Also, in the Alford plea in the Pulaski County case, JudgeElliott denied his guilt of the underlying offense charged. In light of his resignation and in the interest of fiscal responsibility, itis not necessary that the Commission resolve each and every issue raised. It is sufficient to note that the issues raised were seri-ous and that the alleged conduct, if proved at a hearing, would violate the Code of Judicial Conduct, SCR 4.300: Canon 1, fail-ure to observe high standards of conduct so that the integrity and independence of the judiciary will be preserved; and Canon 2A,failure to respect and comply with the law and to act at all times in a manner that promotes public confidence in the integrity andimpartiality of the judiciary.

If the allegations against Judge Elliott had been proven at a hearing, the Commission would have removed him from his officeas Senior Status Judge. As Judge Elliott is resigning from his participation as a Senior Status Judge, the only office he held at thetimes in this Order, a public reprimand is the most severe sanction available.

Therefore, by unanimous vote of the Commission, Judge Elliott is hereby publicly reprimanded.This Order is issued on June 25, 2010.

STEPHEN D. WOLNITZEK, CHAIR

AGREED TO:

PETER OSTERMILLER GEORGE F. RABECounsel for Judge Roger Elliott Counsel for the Commission

JUDGE ROGER P. ELLIOTT

By Amber PotterCommunications Coordinator

Chase Establishes Small Business &Nonprofit Law Clinic

NKU Chase College of Law is dedi-cated to making its students

practice-ready upon graduation throughexperience-based learning that trulyteaches students how to be lawyers.Toward that end, Chase has establishedthe Small Business & Nonprofit LawClinic, which will begin operations thisfall. Through the clinic, students willprovide legal assistance to local smallbusiness entrepreneurs and nonprofitorganizations that would otherwise beunable to obtain legal counsel. This isthe first clinic of its kind in Kentuckyand Greater Cincinnati.

“This clinic will enhance our stu-dents’ professional development throughexperiential learning in the transactionalareas of business and nonprofit lawincluding intellectual property law,” saidChase Dean Dennis Honabach. “Theclinic will provide needed assistance tounderserved Kentucky and Ohio smallbusinesses and nonprofit organizations.”

The Small Business & Nonprofit LawClinic will operate under the auspices ofChase’s Transactional Law PracticeCenter. Since 2008, the TLPC hasserved to further the college of law’scommitment to hands-on learning. Thecenter draws on a unique partnership oflaw students, faculty, practicing lawyers,and business leaders to offer studentsinnovative training to develop the prac-tice skills they will need to becomesuccessful transactional lawyers.

The students will work in the clinicunder the supervision of center andclinic director Sherry Porter.

“The clinic will provide superbopportunities for our students to learnfirst-hand what it takes to be an attorneyas they meet with clients, prepare andreview documents, and handle legalissues,” Porter said. “The students will

also develop an understanding of how alaw firm works as they learn new clientprocedures, case file management, andeffective client communication.”

The clinic plans to work closely withNKU’s Small Business DevelopmentCenter and the university’s Institute forNonprofit Capacity, which will furtherthe law school’s outreach to the commu-nity, particularly in the area ofcommunity and business development.

“This is an excellent opportunity forour students to give back to the commu-nity by helping those who cannot affordlegal representation,” Porter said. “Notonly will nonprofit organizations benefitfrom the quality legal services providedby our students through the clinic, butthe constituents that the nonprofits servewill benefit in the long run as well.”

Students working in the clinic willattend classroom sessions covering arange of topics including ethics, tax, andbusiness organizational law. They willalso receive instruction on basic transac-tional practice skills such as clientinterviewing and counseling, negotia-tion, and drafting. In addition to theclassroom requirements, students willbe expected to work a minimum of 150hours in the clinic.

By David A. BrennenDean and W.T. Lafferty Professor ofLaw

University of Kentucky College ofLaw Hires Danny Murphy asAssistant Dean

On June 1 of this year, DannyMurphy was named Assistant Dean

for Administration andCommunityEngagement at the UKCollege of Law. He isspearheading the col-lege’s renewed effortsto enhance engage-ment with the local,state and national com-

munity, and is responsible for the col-lege’s nonacademic operations,including supervising the communica-tions, alumni affairs and ITdepartments, as well as the ContinuingLegal Education program.

Danny is a 1998 graduate of theCollege of Law and brings to us awealth of experience in terms of lawpractice, community service and admin-istration. He comes to UK from Wyatt,Tarrant and Combs, LLP, in Lexington,and was formerly a member ofMcMurry & Livingston, PLLC, inPaducah, where he focused primarily onreal estate law. He is currently chair ofthe Public Policy Council forCommerce Lexington.

Mary Davis, Professor and AssociateDean for Academic Affairs, speaks forthe faculty when she says, “We are soexcited to have Danny joining theCollege of Law administration. Danny’s10-year legal practice along with hisstrong connections to the KBA andother state and local organizations willmean great new community engagementinitiatives. I am personally pleased tohave Danny back within the walls of theCollege of Law. He was a superb VicePresident of the Student Bar Associationwhen he was a law student. Everyoneenjoyed working with him then and weare pleased he is now a colleague.”

Personally, for me as Dean, it is greatto have someone on the administrativestaff who is recently from practice, veryaccomplished and very passionate aboutUK Law and its future. I think thatDanny is smart, personable and profes-sional. Plus, he has a keen sense of whatit means for an institution like theCollege of Law to be engaged in its pro-fessional community.

“We have seen great momentum inthe direction of the College of Lawunder the current leadership of ouradministration and faculty, includingDean David Brennen, Associate DeanMary Davis and Associate DeanDouglas Michael,” Danny says. “So, itis a privilege for me to be part of theinitiatives at the College of Law, includ-ing our efforts to enhance ourinvolvement across this state and nation,and to make sure we are actively

University ofKentuckyCollege of Law

Salmon P. ChaseCollege of Law


Danny Murphy

KENTUCKY BAR NEWS

engaged in Dr. Lee Todd’s efforts forthe University of Kentucky to become aTop 20 research university.”

Danny lives in Lexington with hiswife, Melissa, who is also a UK Lawgraduate, and their two children.

By Jim ChenDean and Professor of Law

Diadromous Drama

Few things in the natural world matchthe drama of diadromous fish. Tales

of grand migrations across water, it sohappens, provide apt lessons for lawand legal education. Bear with me, and Ishall explain.

Many species of fish migrate. Somespecies — notably alewives, shad,Pacific salmon, lampreys, and eels —traverse both fresh and salt water overthe course of their life cycles for repro-ductive purposes. Pacific salmon areperhaps the most celebrated of anadro-mous fishes. They breed in fresh water,live as adults at sea, and return at last totheir ancestral streams — perchance tospawn, certainly to die.

For their part, the eels of genusAnguilla are legendary for their catadro-mous life cycles. They live as adults infresh water. Until very recently, eel

reproduction utterly baffled humanity.European eels are now understood tobreed in the Sargasso Sea; elvers, onceassumed to constitute an altogether dif-ferent species, are now known to bethese eels in their larval stage.

Diadromous fishes such as Pacificsalmon and European eels span a widerange of habitats over their lifespansand rank among the most mobile ofmigratory fishes. They have their coun-terparts among lawyers. We would dowell to remember the drama ofdiadromy in our own profession.

Nearly all professionals change jobsover the course of their careers. By defi-nition, all American lawyers changecareers when they elect to study law.Very few other countries insist thatlawyers complete at least one undergrad-uate degree, in an altogether differentdiscipline, before they study the law.Few other countries match the UnitedStates in job mobility among lawyers.The path between government serviceand private practice is well trod, both inthe sense of “often” and in the sense of“proficiently.” A growing contingent ofchief executive officers boasts the termi-nal degree of juris doctor. Today’s legalacademy, more than ever before, wel-comes new teachers who have learned alegal trade first-hand and perfected itthrough years of practice, long beforethey undertake to teach law students.

The result? American students bringto the study of law intellectual compe-tencies that few if any of their foreigncounterparts can match. Americanlawyers are by far the most resilientpractitioners of a craft known aroundthe world. At least within the legal pro-fession, F. Scott Fitzgerald was wrong:there truly are second acts in Americanlives.

Legal education at the University ofLouisville, I am fond of saying, excelsat serving first generations and deliver-ing second chances. In some sense, allof our students, not just our fantasticsecond-career lawyers, are looking tochange professional directions. Amongthose we teach and those we serve,though, there are always a few who aremaking more explicit efforts to com-plete some sort of transition. As with

diadromous fishes, these students, theselawyers, these professionals in all walksof life are making the grandest journeysthey could undertake. Their ability toflourish in multiple environments,within the legal profession or in transi-tion between law and some other fieldof productive endeavor, quite arguablymakes diadromous lawyers the hardiestspecimens among us all.

University ofLouisvilleSchool of Law


KENTUCKY BAR NEWS

■ In Memoriam

Wesley P. Adams, Jr. Louisville

Walter A. Baker Glasgow

Cecil Alonza Blye, Sr. Louisville

David Wayne Campbell Hazard

Charles R. Coy Richmond

Henry H. Dickinson Glasgow

Harold Edward Dunaway Elizabethtown

Brad Goheen Benton

Gillard B. Johnson, Jr. Ashland

William A. Lamkin, Jr. Louisville

John W. McNeill III Maysville

Marvin P. Nunley Owensboro

Kirby A. Scott Louisville

Rhonda Gail Seabolt Lexington

Alan T. Slyn Louisville

Kenneth H. Smee Lexington

William Lane Stevens Danville

Paul K. Turner Hopkinsville

CLICKwww.kybar.org

Mark yourcalendar

June 15-17, 2011

KBA Annual Convention 2011

Lexington

KENTUCKY BAR NEWS


H igh School seniors in 18 Kentuckycounties learned the importance of

sticking to a budget, saving money, andpaying bills on time through an innova-tive financial literacy programsponsored in April and May by TheKentucky Bar Foundation, Inc. (KBF).

The Credit Abuse ResistanceEducation (CARE) program was pre-sented to an estimated 15,000 studentsby volunteer members of the bar associ-ations in Campbell, Clark, Daviess,Estill, Fayette, Floyd, Green, Hardin,Jefferson, Kenton, Laurel, Madison,Marion, Pike, Pulaski, Taylor, Warrenand Washington counties. The CAREprogram also includes discussions onthe true cost of credit cards, commonforms of credit, the ins and outs of carloans, the danger of predatory lendingpractices, and the consequences ofcredit abuse.

The CARE program in Kentuckystarted as a pilot project in 2008 inselected Louisville and Lexingtonschools and has grown dramaticallyover the last two years, according toTodd S. Horstmeyer, KBF ExecutiveDirector. The success of the CARE pre-

sentations during their first year led tothe Kentucky Board of Educationapproving the program for presentationin public schools statewide. In 2009,eight counties participated in theprogram.

“We are excited about this opportu-nity to help young people start theirfinancial lives on the right foot, espe-cially during these trying economicaltimes,” Horstmeyer said. “This effortallows attorneys and judges to meet faceto face with students to discuss the legalobligations associated with credit, themany ways people abuse credit and howbad economic decisions regardingfinances can impact their lives nega-tively for years to come.”

The CARE program is based on asuccessful initiative launched by U.S.Bankruptcy Judge John C. Ninfo II ofRochester, N.Y., who saw a pressingneed for an education program aimed atpreparing students for their financialfuture. Since its creation in 2002, theCARE program is now presented atlocations in all 50 states. Judge Ninforecently visited Kentucky as a specialguest speaker at the KBF’s Annual

Luncheon held during the KBA AnnualConvention in Lexington, June 18-20.

Members of the Kentucky bar asso-ciations participating in the effortreceive training in the CARE program’smaterials and goals before making presentations in their respective com-munities throughout the spring months.Participating students receive a color-ful, eye-catching booklet with theCARE program’s financial tips that wasdesigned and printed through a KBFgrant.

Clayton Oswald, a London attorneywith the firm Taylor, Keller, Dunawayand Tooms, PLLC, was one of morethan 200 attorneys throughout theCommonwealth who volunteered histime to make the CARE presentations.Oswald joined fellow Laurel CountyBar Association member Martha L.Brown of Kelley, Brown & Breeding,PSC, in making presentations at NorthLaurel High School.

“Even though we are in front ofjudges, jurors and clients all the time, Iwas more nervous in front of that highschool audience than I have ever been,”Oswald said, laughing. “But it wasreally refreshing for me to see howquiet and attentive everyone was duringthe presentation.”

Brown said the students offered“very good questions” regarding theprogram materials.

“The questions indicated they werereally thinking about the program andwhat we had to say,” she said.

Oswald said he believes the CAREprogram is particularly timely given thecurrent financial situation in the UnitedStates and across the globe today.

“It worries me because I believethings are harder for kids today withthe increase in the price of tuition andthe difficulties in the current job mar-ket,” he said. “It’s a tough time to bestarting out.”

Brown agreed, saying “the mainthing is recognizing the importance oftalking to young people now before theyfall into credit traps that are happening

KENTUCKY BAR FOUNDATION’S “CARE” PROGRAMFOR FINANCIAL LITERACY GROWS DRAMATICALLY IN 2010

London attorneys Clayton O. Oswald and Martha L. Brown address high school students duringa CARE presentation at North Laurel High School in May. More than 200 attorneys in 18counties volunteered their services to present the program to high school seniors during therecent school year.


KENTUCKY BAR NEWS

nationwide. In the past 10 years, there has beena significant increase in the number of youngpeople filing for bankruptcy.”

Both Brown and Oswald said volunteering topresent the CARE program is also beneficial forthe image of the legal profession.

“I think it is good that the students get tomeet you in a different context than they mightnormally see you,” Oswald said. “It lets themknow that we do care about other things thanjust our day-to-day work.”

Having contact with the community is impor-tant, Brown said, “particularly the young people,and to let them have communication withlawyers that is not threatening.”

As interest in the CARE program grows, theKBF hopes to expand the program to communi-ties across the Commonwealth. Horstmeyer saidthe goal for 2011 is to include bar associationsin 25 or more counties. For more informationon CARE and how your local bar associationcan participate, contact Horstmeyer [email protected] or call (502) 564-3795,ext. 252.

THREE BROTHER JUDGESColonel Steve Castlen (center) recently took his oath as judge for

the U.S. Army. Two of his brothers serve on the bench in Kentucky,Judge TomCastlen, SeniorJudge (right), andJudge Joe Castlen,Daviess CircuitJudge (left).

The new JudgeCastlen wasinstalled in thejudiciary during aceremony May 7,2010, in

Charlottesville, Virginia. He will serve as the military judge for allcriminal trials occurring on Fort Benning, Fort McPherson, FortRucker, and the Redstone Arsenal. He has been on active duty forover twenty-eight years. In his prior assignment he was in commandof all JAG offices in the Army Reserves, supervising over two thou-sand JAG officers.

Judge Steve Castlen is a member of the Kentucky BarAssociation. He graduated from Salmon P. Chase College of Law,and has a Masters of Law and a Masters in Strategic Studies. Steveand his wife, Sue Durfee Castlen, have three children: Michael, anAir Force Captain and KC 135 pilot with multiple deployments toAfghanistan; Rachel, a school teacher in Guatemala; and John, aFirst Lieutenant in the Army JAG Corps. Steve and John are the firstfather/son JAG officers serving on active duty at the same time inthe history of the Army.

U.S. Bankruptcy Judge John C. Ninfo II of Rochester,N.Y., addresses the Kentucky Bar Foundation's AnnualLuncheon, Thursday, June 17, during the KBA’s AnnualConvention in Lexington. Judge Ninfo created the CreditAbuse Resistance Education (CARE) program as a wayof preparing students for their financial future. Since itscreation in 2002, the CARE program is now presented atlocations in all 50 states.

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KENTUCKY BAR NEWS


S treet Law, Inc. is a national non-profit organization that provides

practical, participatory education aboutlaw, democracy, and human rights.Street Law began in 1972, when a smallgroup of Georgetown University LawCenter students developed an experi-mental curriculum to teach high schoolstudents in Washington, D.C. about thepractical aspects of the law and the legalsystem. The program evolved and todaya Street Law textbook and curriculum isused throughout the country.

On 9/11, Joe Gutmann, a prosecutorin Louisville, decided to make adifference in a new way. He left theprosecutor’s office to teach at CentralHigh School in Louisville. In 2005, hewas asked to serve as the coordinator ofCentral’s Law and Government MagnetProgram, and he began using the StreetLaw materials for the sophomore mag-net students. In 2007, law students fromthe University of Louisville School ofLaw began assisting in teaching thecurriculum at Central under JoeGutmann’s supervision. Building on thepartnership begun in 2001 betweenCentral and the Brandeis School ofLaw, law students were approved to

receive public service credit for theirStreet Law work. Each year about 15 to25 law students are involved in the pro-gram (in addition to many others whoteach law magnet courses for juniorsand seniors).

Each year, Street Law honors ateacher at its Annual Awards Dinner.Nominees must “educate students in anexceptional manner” and “use StreetLaw materials.” Joe Gutmann met bothcriteria, and he was recognized inWashington, D.C. on April 28, 2010, asthe Street Law Educator of the Year.

One of his nomination letters notedthat “his dedication and commitmentgoes above and beyond to ensure thatstudents are guided and that they learn.He gives them “tough love.” He makessure they have the opportunity toattend special events. He works on giv-ing them the tools to succeed. He is atireless advocate for his students. TheCentral students who are in his classand the law students who teach in theLaw Magnet think highly of Joe. Theadmiration and affection and respect …students have for Joe…doesn’t stopwhen they graduate. [R]eturning stu-

dents …still come to him for help andadvice (and to share good news abouthow college is going).”

This award recognizes that excep-tional teaching and commitment. Joe isalways quick to acknowledge the vari-ous partnerships that make the CentralHigh School’s Law and GovernmentMagnet Program and his work success-ful. These include the partnership withthe Brandeis School of Law, the longstanding Summer Internship Programsponsored by the Louisville BarAssociation, the University ofLouisville University CommunitySignature Partnership support throughUofL’s Office of CommunityEngagement (including the SevenHabits of Highly Successful TeensProgram), the Women LawyersAssociation of Jefferson County, theLouisville Black Lawyers Association,and the American Civil Liberties Unionof Kentucky.

BOWLING GREEN-WARRENCOUNTY BAR ASSOCIATIONPRESENTS PRO BONOPUBLICO AWARD TO DEBRA L. BROZ

Debra L. Broz was presented thePro Bono Publico Award at the 2010

Law Day ceremoniesconducted by theBowling Green-Warren County BarAssociation. Thisaward is presentedeach year by theLawyers CareVolunteer Attorney

Program to a member of the Bar whohas made a significant contribution tothe provision of donated legal servicesto low-income elderly or disabled indi-viduals in the community. Ms. Broz,who practices law in Bowling Green,received this award for her continuedcommitment to the mission of LawyersCare and pro bono service.

Debra L. Broz

Joe Gutmann Named 2010 Educator of the Year by Street Law

Before You Move...Over 16,000 attorneys are licensed to practice in the state of Kentucky. It is vitally importantthat you keep the Kentucky Bar Association (KBA) informed of your correct mailing address.Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which heor she may be communicated, as well as a physical address if your mailing address is a PostOffice address. If you move, you must notify the Executive Director of the KBA within 30days. All roster changes must be in writing and must include your 5-digit KBA member iden-tification number. There are several ways to do this for your convenience.

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

EMAIL the Executive Director via theMembership Department at [email protected]

FAX the Address Change/Update Form obtainedfrom our website or other written notification to:Executive Director/Membership Department(502) 564-3225

MAIL the Address Change/Update Form obtainedfrom our website or other written notification to:

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

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


KENTUCKY BAR NEWSSUMMARY OF MINUTES

KBA BOARD OF GOVERNORSMEETING

MARCH 19, 2010

The Board of Governors met on Friday,March 19, 2010. Officers and BarGovernors in attendance were PresidentC. English, Jr., Vice President M.Keane. Bar Governors 1st District – D.Myers, J. Freed; 2nd District – R.Sullivan, J. Harris; 3rd District – R.Hay, G. Wilson; 4th District – D.Ballantine, D. Farnsley, 5th District – A.Britton, F. Fugazzi, Jr.; 6th District – T.Rouse; and 7th District – B. Rowe, W.Wilhoit. Officers and Bar Governorsabsent were: President-Elect B. Davis;Immediate Past President B. Bonar,Young Lawyers Section Chair J. Mooreand D. Kramer.

In Executive Session, the Board consid-ered one (1) discipline case, three (3)discipline default cases, and one (1)restoration case. Steve Langford ofLouisville, Roger Rolfes of Florence,and Dr. Robert Strode of Frankfort, non-lawyer members serving on the Boardpursuant to SCR 3.375, participated inthe deliberations.

In Regular Session, the Board ofGovernors conducted the followingbusiness:

• Heard a status report from theKYLAP, Rules Committee, and Officeof Bar Counsel.

• Young Lawyers Section Chair-ElectNathan Billings, in the absence ofYLS Chair Jennifer H. Moore,reported on the following activities ofthe section: Voices Against ViolenceProject, U@18 project, BankruptcyBasics CLE program in Louisville, afull-day of program at the KBA’sAnnual Convention and the WhyChoose Law Project.

• Approved the reappointment ofThomas K. Herren of Lexington andRussell Lynn Wilkey of Owensboro tothe Attorneys’ AdvertisingCommission for a second term expir-ing June 30, 2013 and the appointmentof Melinda Gillum Dalton of Somerset

for a first term expiring on June 30,2013.

• Approved the recommendation of theBar Center Trustees to accept the pro-posal from Mike McCoy Constructionto complete the necessary buildingrepairs to the Bar Center Building.

• Approved the submission of threenominees to the Supreme Court ofKentucky for the appointment of oneperson from each District to the CLECommission for three-year term end-ing on June 30, 2013: 2nd SupremeCourt District – Kerry S. Morgan ofBowling Green, Mark W. Starnes ofOwensboro and Laura Marie Hagan ofBowling Green. In the 3rd SupremeCourt District – Michael Goforth ofLondon, Julie Gillum of Somerset, andBernadette Zell Leveridge ofJamestown. In the 4th Supreme CourtDistrict – Janet Jakubowicz ofLouisville, Daniel T. Goyette ofLouisville, and Martin E. Johnstone ofProspect.

• Approved the submission of nomineesto the Supreme Court of Kentucky forappointment to the IOLTA Board ofTrustees for three-year term ending onJune 30, 2013: 1st Supreme CourtDistrict – Ken R. Haggard ofHopksinville; 2nd Supreme CourtDistrict – Scott D. Laufenberg ofBowling Green; and 6th SupremeCourt District – Rhonda W.Huddleston of Warsaw.

• Approved the nominations of theAwards Committee for the 2010Outstanding Awards: OutstandingJudge – Judge Sara Walter Combs ofStanton; Outstanding Lawyer – RobertG. Lawson of Lexington; Bruce K.Davis Bar Service Award – Herbert D.Sledd of Lexington; and DonatedLegal Services Award – MelanieStraw-Boone of Louisville.

• Approved the payment of expenses forBoard members attending the Board ofGovernors meeting on June 15 and theconvention itself on June 16-18 as fol-lows: Lodging at the LexingtonDowntown Hyatt Regency at a rate of$127.00 single/double per night for amaximum of four (4) nights.Reimbursement for round trip mileageat the rate of thirty-seven cents ($0.37)

per mile. Reimbursement for mealexpenses incurred on Monday, June14, and Tuesday, June 15, above andbeyond group meal functions on thosedates.

• President English reported that he hadappointed Bar Governor M. GailWilson of Jamestown to serve as Chairof the Diversity in the ProfessionCommission.

• Approved the Law Day Awards total-ing $900 (3 @$300).

• Approved the Student WritingCompetition Awards totaling $1,500(1st - $1,000; 2nd - $300 and 3rd -$200).

SUMMARY OF MINUTESKBA BOARD OF GOVERNORS

MEETINGMAY 14, 2010

The Board of Governors met on Friday,May 14, 2010. Officers and BarGovernors in attendance were PresidentC. English, Jr.; President-Elect B.Davis, Vice President M. Keane; YoungLawyers Section Chair J. Moore. BarGovernors 1st District – D. Myers, J.Freed; 2nd District – R. Sullivan, J.Harris; 3rd District – R. Hay, G.Wilson; 4th District – D. Ballantine, D.Farnsley; 5th District – A. Britton, F.Fugazzi, Jr.; 6th District – T. Rouse, D.Kramer; and 7th District – B. Rowe, W.Wilhoit. Officer absent was: ImmediatePast President B. Bonar.

In Executive Session, the Board consid-ered one (1) discipline case, two (2)discipline default cases, and one (1)restoration case. Malcolm Bryant ofOwensboro, Roger Rolfes of Florence,and Dr. Robert Strode of Frankfort, non-lawyer members serving on the Boardpursuant to SCR 3.375, participated inthe deliberations.

In Regular Session, the Board ofGovernors conducted the followingbusiness:

• Heard a status report from the 2010-2011 Budget Committee, KYLAP,Rules Committee, and Office of BarCounsel.

• President-Elect Davis reported that theJuly 30 Board of Governors meetingwould be held at Marriott LouisvilleDowntown with a social function onFriday evening at the LouisvilleSluggers Field on the Patio Deck. Itwas the consensus of the Board tomeet all day and finish business onFriday without having to meet onSaturday morning.

• Approved the reappointment of NancyBeck of Louisville and William GaryCrabtree of London as trustees to theClients’ Security Fund for respectivethree year terms ending on June 30,2013.

• Young Lawyers Section Chair JenniferH. Moore reported on the followingactivities of the section: DisasterRecovery Relief for the recent flood-ing; update on the U@18 program inthat 22 counties have asked for pre-sentations, and Robert Houlihan, Jr.,was selected as the recipient of theNathaniel Harper Award and he willbe recognized at the their luncheon inconjunction with the annual conven-tion.

• Ed Monahan with the Department of

Public Advocacy presented theagency’s annual report.

• Approved appointments and reappoint-ments to the Kentucky BarFoundation: 1st Supreme CourtDistrict appointed E. Frederick Straubof Paducah and Gerald Bell of Murrayfor a three-year term ending on June30, 2013; 2nd Supreme Court Districtreappointed Frank Hampton Moore, Jr.of Bowling Green for a three-yearterm ending on June 30, 2013; 3rd

Supreme Court District appointedJohn Bertram of Campbellsville for athree-year term ending on June 30,2013; and 5th Supreme Court Districtreappointment of Guthrie True ofLexington and Bruce Smith ofNicholasville for a three-year termending on June 30, 2013.

• Approved, subject to approval by theSupreme Court, to fund the KLEO(Kentucky Legal EducationOpportunity) Summer Institute Projectfor July 2010 in the amount of$20,000, together with the remainingapproximate $7,000 balance from theBar Foundation grant from 2009.

• Approved a Policy on Donation

Support of Judicial Candidates.• Approved a request from the

Louisville Bar Association to co-spon-sor a reception for the Small BarConference of the NationalAssociation of Bar Executives in theamount of $636.00.

• Approved a refund, in the amount of$2.50 of a member’s dues if the Barengages in political or lobbying activi-ties (Keller v. State Bar of California)and if the member requests a refund.

KENTUCKY BAR NEWS


To KBA Members

Do you have a matter to discusswith the KBA’s Board of Governors?Board meetings are scheduled on

July 30-31, 2010September 17-18, 2010

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

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

On June 30 of each year, terms expire for seven of thefourteen Bar Governors on the KBA Board ofGovernors. SCR 3.080 provides that notice of the expi-ration of the terms of the Bar Governors shall be carriedin the Bench & Bar. SCR 3.080 also provides that aBoard member may serve three consecutive two-yearterms. Requirements for being nominated to run for theBoard of Governors are contained in Section 4 of theKBA By-Laws and the requirements include filing awritten petition signed by not less than twenty (20) KBA

members in good standing who are residents of the can-didate’s Supreme Court District. Board policy providesthat “No member of the Board of Governors or InquiryCommission, nor their respective firms, shall representan attorney in a disciplinary matter.” Any such petitionmust be received by the KBA Executive Director at theKentucky Bar Center in Frankfort prior to close of busi-ness on the last business day in October. The currentterms of the following Board members will expire onJune 30, 2011:

1st DistrictSerieta G. Jaggers

Princeton

2nd DistrictR. Michael Sullivan

Owensboro

3rd DistrictRichard W. Hay

Somerset

4th DistrictDouglass Farnsley

Louisville

5th DistrictFred E. Fugazzi, Jr.

Lexington

6th DistrictThomas L. Rouse

Fort Mitchell

7th DistrictWilliam H. Wilhoit

Grayson

Terms Expire on the KBA Board of Governors

Kentucky Clients’ Security Fund

The Kentucky Clients’ Security Fund was established by the Supreme Court of Kentucky (Rule 3.820) to be administeredby the Kentucky Bar Association. It is funded by the Bar dues of the lawyers of Kentucky to reimburse clients for direct lossescaused by their attorney’s dishonest conduct, defined as the wrongful taking of clients’ money or other property. The amountof $7.00 per lawyer, $6.00 per member of the judiciary, is allocated from member dues by the Kentucky Supreme Court forthis Fund. The Fund does not consider losses resulting from negligence, nor does it consider consequential damages. There arecaps on recovery.

In the fiscal years 2005-2006 through 2009-2010 the Fund has paid $624,648.17 to victims.

The Fund provides a last-resort avenue for client victims who are unable to get reimbursement for their losses from theresponsible lawyer, or from insurance or other sources. There is no charge to the client for this process. The Rule prohibitslawyers from being compensated for assistance in a claim.

Claims are reviewed by a Board of Trustees appointed by the Board of Governors of the Kentucky Bar Association. Thesefive (5) Trustees consist of three lawyers and two lay members who perform their duties as a public service and receive nocompensation.

Fund Payments in Fiscal Year 2009-2010

Attorneys Whose Clients Suffered Losses Total Paid Number of Clients ReimbursedBruce D. Atherton Louisville, KY $9,197.37 1Nicholas N. Brown (Deceased) Bowling Green, KY $200.00 1Robert E. Cato (Deceased) London, KY $1,000.00 1Eric L. Emerson Covington, KY $750.00 1James Richard Gregory Elizabethtown, KY $6,100.00 3William J. Grider Louisville, KY $500.00 1R. Allen McCartney Louisville, KY $13,595.00 3James Kevin Mathews Henderson, KY $1,000.00 1Gregory Menefee* Louisville, KY $136,471.69 11Brentley P. Smith Louisville, KY $17,276.25 2Jennifer S. Whitlock Ashland, KY $2,100.00 2

(*Additional claims have been approved by the Fund on this Respondent that are in the process of being distributed and notincluded in the total amount paid.)

Further information regarding the Fund can be found on the Kentucky Bar Association website, www.kybar.org, under the Law& Ethics page.


KENTUCKY BAR NEWS

Judge Jeff S. Taylor of Owensborohas been elected by his fellow judges

to serve as chief judge of the KentuckyCourt of Appeals. Histerm as chief judgebegan July 1.

“I am deeply hum-bled that my fellowjudges have selectedme as their chiefjudge,” Judge Taylorsaid. “It is an honor

and a privilege to serve in this capacityfor our court. I look forward to workingwith my fellow judges and court staff tomake the Court of Appeals more effi-cient and to further enhance theadministration of justice in Kentucky.”

The Court of Appeals judges electedJudge Taylor during their regular courtmeeting June 15. The chief judge pro-vides administrative oversight to theCourt of Appeals and serves in the posi-tion for a four-year term under theKentucky Constitution.

Court of Appeals Judge Laurance B.VanMeter served as the court’s actingchief judge after Judge Sara WalterCombs resigned from that position inMay.

Judge Taylor was first elected as aCourt of Appeals judge in November2003 to represent the 2nd AppellateDistrict, which is comprised of Barren,Breckinridge, Bullitt, Daviess, Grayson,Hancock, Hardin, Hart, Henderson,LaRue, Meade, Ohio, Union andWarren counties. He was re-elected inNovember 2006 to a full eight-yearterm.

Judge Taylor previously practiced lawin Owensboro for more than 20 yearsand was a sole practitioner from 1990until his election to the Court of Appeals.

He has a Bachelor of Science degreefrom Murray State University and aMaster of Public Administration degreefrom Memphis State University. Heearned his law degree from theUniversity of Louisville Louis D.Brandeis School of Law, graduatingwith honors in 1982. He is a 1971 grad-uate of Elizabethtown High School.

Judge Taylor serves on the Kentucky

Bar Foundation Board of Directors andon the board of directors for the DaviessCounty Public Schools Foundation. Heserved on the Murray State UniversityBoard of Regents from September 2006to September 2009.

He is a past president of theKentucky chapter of the Federal BarAssociation. He is also past president ofthe Daviess County Bar Association,

Daviess County Public Defender Corp.and the Daviess County LawyerReferral Service. He is a member of theAmerican, Kentucky and DaviessCounty bar associations. Judge Tayloris a Life Fellow in the Kentucky BarFoundation and a member of theBrandeis Honor Society at theUniversity of Louisville Louis D.Brandeis School of Law.

KENTUCKY BAR NEWS


Judge Jeff S. Taylor elected Chief Judge of Kentucky Court of Appeals

Statement from Judge CombsMay 12, 2010

It has been my privilege and honor to serve on the Court of Appeals as itsChief Judge for the past six years. Today, it is with both joy and some measure ofnostalgia that I announce that I am relinquishing the position of Chief Judgeeffective immediately.

At heart, I have been reluctant to step aside, but I have made this decision fol-lowing a great deal of thought. I believe that it is the correct decision at thisparticular time. It is my desire and intent to devote more of my time to the essen-tial work of the Court rather than its demanding and time-consumingadministration. I have endeavored to make decisions that are sound, effective, andin the best interest of the Court as a whole.

I look forward to being able to spend more of my time maintaining a closeassociation with the people of my district and furthering my efforts in preservingthe memory of my distinguished and beloved late husband, Bert Combs.

Legally Insane by Jim Herrick

“Look, I’ll level with you. I really don’t think the ‘he-killed-me-first’ defense is gonna fly.”

Jeff S. Taylor


WHO, WHAT, WHEN & WHEREON THE MOVE

Middleton Reutlingeris pleased to announcethat Elisabeth S. Grayhas joined the firm inits commercial litiga-tion practice. Her prac-tice focuses on unfaircompetition, includingdisclosure of tradesecrets and enforcing

non-competition and non-solicitationagreements. She has developed a practicein cyber-litigation (involving use of com-puters, e-mail or Internet) and other mat-ters relating to e-discovery issues. Grayhas trial experience in state and federalcourts, as well as arbitration tribunals,and her practice includes appellate workat all levels. She received her law degreefrom Vanderbilt University in 1998.

Bryan R. Armstrong is pleased toannounce the opening of his solo prac-tice, Bryan R. Armstrong Attorney atLaw. He received his B.A. from TrinityCollege in 2002 and earned his J.D. fromthe University of Louisville School ofLaw in 2007. Prior to opening his ownfirm, Armstrong worked with Darby &Gazak and Connecticut Legal Services.His experience includes professional lia-bility, civil litigation, family law, busi-ness disputes, regulatory compliance,debtor’s rights, employment discrimina-tion, personal injury, and criminaldefense. Armstrong is active with LegalAid and is licensed in both Kentucky andConnecticut.

The Louisville lawfirm of ThompsonMiller & Simpson ispleased to announcethat Heather R. Cashhas joined the firm asan associate. Cash is a2001 graduate ofCentre College and a2003 graduate of

Vanderbilt Divinity School, summa cumlaude. In 2007, she earned her J.D. fromthe University of Louisville School ofLaw. Cash recently completed a two-yearclerkship with Kentucky Supreme CourtJustice Lisabeth Hughes Abramson. She

will concentrate her practice at ThompsonMiller & Simpson in healthcare andemployment law.

Ferreri and Fogle,PLLC is proud toannounce thatStephanie D. Ross, outof the firm’s NorthernKentucky office atFlorence, and JohannaFrantz Ellison, out ofthe firm’s Lexingtonoffice, were namedmembers of the firmeffective January 1,2010. The firm is alsopleased to announcethe addition of threenew associates to itsLexington office:Patrick O’Connor,Tighe Alexander

Estes, and N. Kodey Jolly. Their areas ofpractice will be general civil liability, sub-rogation, and workers’ compensationdefense.

The law firm ofStrauss & Troy ispleased to announcethat attorney David E.Davidson has joinedthe firm. He will belocated in the firm’sNorthern Kentuckyoffice and will con-centrate his practice in

the areas of civil litigation, family law,and criminal defense. Davidson isadmitted to practice in Kentucky andOhio.

Jim Worthington ispleased to announcethat he has returned tothe private practice oflaw, focusing on allaspects of estate andtrust law, charitabletax planning, and rep-resentation of closelyheld businesses. He is

practicing independently as Worth-ington Law Firm, PLLC, and as OfCounsel to Homer Parrent, III, and DanOyler. Worthington can be reached at

(502) 584-7500 or at [email protected].

The Louisville lawfirm of GoldbergSimpson is pleased toannounce the additionof associate attorneyKelly J. Oates in theforeclosure/workoutand real estate areas.She began her practicewith the firm as a

summer associate in 2008. A native ofLouisville, Oates graduated cum laudefrom Centre College in 2006 and earnedher J.D. from the University ofLouisville School of Law in 2009,where she graduated magna cum laudeand fourth in her class.

Frost Brown Todd is pleased toannounce that Joseph B. Miller hasjoined the firm. Miller is a senior asso-ciate in the firm’s capital transactionsand governance practice group. He hascounseled clients on general businessand corporate matters. Miller is a gradu-ate of Harvard Law School where hereceived his J.D., cum laude. He earnedB.A. degrees in history and economics,summa cum laude, from the Universityof Kentucky.

Jennifer Griffin Anstaett has beennamed a member of the Cincinnati lawfirm of Beckman Weil ShepardsonLLC. Anstaett practices primarily in theareas of estate planning, probate admin-istration, and elder law. She advisesclients on a broad range of mattersincluding lifetime gifting and transfersat death and estate planning for familieswith children with disabilities. Anstaettreceived her B.A. from Centre Collegein 1998 and earned her J.D. fromWashington & Lee University School ofLaw in 2001.

The Augusta law firm of MacDonaldWalton & Razor, PLLC is pleased toannounce that attorney Cynthia C.Thompson has joined the firm as apartner. Thompson focuses her practicein the areas of domestic relations, wills,estates and probate, real estate, andbankruptcy. She received her undergrad-

Elisabeth S. Gray

Johanna F. Ellison

Stephanie D. Ross

Heather R. Cash

David E.Davidson

Jim Worthington

Kelly J. Oates

WHO, WHAT, WHEN & WHERE


uate degree from Princeton Universityand earned her law degree from theUniversity of Cincinnati School of Law.Thompson was admitted to practice lawin the Commonwealth of Kentucky in1996. She may be reached [email protected].

Dinsmore & ShohlLLP is pleased toannounce thatSuzanne P. Land hasjoined the firm as apartner in the corpo-rate department andmember of the familywealth planning prac-tice group. Land

moved from Greenebaum, Doll &McDonald PLLC to Dinsmore & Shohl’sCincinnati office. Land’s practice focuseson estate and gift taxation and planning,business succession planning, asset pro-tection planning, charitable tax planning,elder care law, and planning for benefici-aries with special needs. She also cur-rently serves as an adjunct professor atthe University of Cincinnati School ofLaw. Land received her B.A. fromYoungstown State University and earnedher J.D. from Case Western ReserveUniversity School of Law.

DBL Law of Crestview Hills recentlyadded Christopher B. Markus as an

associate to the litiga-tion practice group.Markus will focus oncommercial, banking,and creditor’s rights.Prior to joining DBL,he was an associate ata firm in Cincinnati.He obtained his lawdegree from NorthernKentucky University’s

Chase College of Law.

Gwin Steinmetz &Baird is pleased toannounce thatLindsay Gray hasjoined the firm. Grayobtained her J.D. fromthe University ofLouisville School ofLaw. She will concen-trate her practice in

the areas of insurance, trucking, productliability, premises liability, and otherlitigation.

Greenebaum Doll & McDonaldPLLC is pleased to announce that AmyB. Berge, a member in the firm’sLouisville office, has been named chairof the firm’s intellectual property prac-tice group and that Jeremy P. Gerchand Benjamin J. Lewis have joined thefirm as associates in the Louisville

office. Berge practices in the areas ofU.S. and international trademark, copy-right, advertising, and internet law. Inaddition, Berge is chair of the firm’s pri-vacy team and concentrates on licens-ing, privacy, and computer andtechnology agreements. Gerch has overfour years of experience working intrusts and estates. He received his bach-elor’s degree from BellarmineUniversity and earned his J.D. from theUniversity of Nebraska College of Law.Lewis has joined the firm as a memberof the labor and employment practicegroup and the litigation and dispute res-olution practice group. He received hisbachelor’s degree, cum laude, from theUniversity of Louisville and earned hisJ.D., summa cum laude, from NKUChase College of Law.

The Drew Law Firm, of Cincinnati, ispleased to welcome a new partner, C.Curtis Walden. He earned his lawdegree from the University ofCincinnati and came to The Drew LawFirm from the Cincinnati firm of Martin& Bailey. Walden practices in the areasof civil litigation, insurance defense,construction law, personal injury, autoaccidents, product liability claims, pro-bate, and estate planning.

Ramona “Rami”Little has become apartner and co-ownerin the Danville lawfirm of Sheehan,Barnett, Dean,Pennington & Little,PSC. She joined thefirm in July 2008 afterserving as an Assistant

Commonwealth Attorney for the 22nd

Judicial Circuit in Lexington for fiveyears. Her primary focus of practice isin the areas of general civil litigation,criminal defense and domestic litigationwhich includes divorce, adoption, andchild custody. Little, who is bilingual,graduated from Furman University,majoring in both Elementary Educationand Spanish. She earned her J.D. fromStetson University College of Law.Other partners with the firm includeJames William Barnett, J. Hadden Dean,and Henry Vincent Pennington, III.

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Associate attorneys with the firm areStephen A. Dexter and ElizabethNickels Lenn. Little can be reached ather office at 111 South Fourth Street inDanville or by phone at (859) 236-2641.

The law office of Avery & Schurman,PLC, in Louisville, is pleased toannounce the addition of attorneyElizabeth Black Hatchett to its legalteam. Hatchett holds a master’s degreein women and gender studies from theUniversity of Louisville and is a 2009,cum laude, graduate of the University ofLouisville School of Law. She will con-centrate her practice in the areas ofbusiness and family law.

IN THE NEWSTransylvaniaUniversity recentlyrecognized JenniferA. Moore as the 2010Outstanding YoungAlumni. TheOutstanding YoungAlumni Award isbestowed annuallyupon a Transylvania

alumni who has demonstrated excep-tional contributions to her/his profes-sion, community, and alma mater.Moore, a partner in the law firm ofGrossman & Moore, PLLC, inLouisville, is a 1995 graduate ofTransylvania University, B.A., magnacum laude. She earned her J.D., cumlaude, in 1998 from the University ofKentucky College of Law.

Glen Bagby, a partnerin Dinsmore &Shohl’s Lexingtonoffice, has beenappointed Regent ofthe American Collegeof Trust and EstateCounsel (ACTEC).His primary responsi-bilities include work-

ing with fellow members to improveand reform probate, trust, and tax lawsand procedures. The Board of Regentsis ACTEC’s governing body and hasapproximately 40 members.

John G. McNeill hasjoined the LawyersMutual InsuranceCompany of Kentucky(LMICK) Board ofDirectors. A partnerwith Landrum &Shouse Law Officesin Lexington, McNeillfocuses in civil litiga-

tion defense, insurance defense law,product liability law, bad faith litigation,and coverage issues.

E. Kenly Ames is par-ticipating in the cur-rent class ofLeadership Kentucky.She is one of 56 par-ticipants in the pro-gram. The one-yearprogram began inMay with a three-dayretreat at the Lake

Cumberland Educational Center. Amesis a partner at English Lucas Priest &Owsley LLP in Bowling Green. She



Jennifer A. Moore

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primarily practices in the areas of busi-ness litigation and intellectual property,including work with trademarks andcopyrights.

J. Guthrie True hasbecome a Fellow ofthe American Collegeof Trial Lawyers. True,a partner in theFrankfort firm ofJohnson, True &Guarnieri, wasinducted as a Fellowduring the 2010 Spring

Meeting of the College in Palm Desert,California. Fellowship in the College isextended by invitation only, and onlyafter careful investigation, to those expe-rienced trial lawyers who have masteredthe art of advocacy and whose profes-sional careers have been marked by thehighest standards of ethical conduct, pro-fessionalism, civility and collegiality.Lawyers must have a minimum of fifteenyears trial experience before they can beconsidered for Fellowship.

Richard Bales, NKUChase College of Law,has been selected asNorthern KentuckyUniversity’s 2010Frank Sinton MilburnOutstanding Professor.Professor Bales is aleading innovator inthe classroom, an

accomplished scholar and mentor of stu-dent scholars, and a university citizenwho gives generously of his time to stu-dent work, university service, and publicengagement. He is director of Chase’sCenter for Excellence in Advocacy andserved as interim dean in 2006 and asassociate dean for faculty developmentfrom 2007-09. He is the faculty advisorfor the law review, advocacy society, andthe Black Law Student Association.Additionally, he coaches several compe-tition teams. Professor Bales collaboratedwith NKU’s College of Business to cre-ate the NKU Alternative DisputeResolution Center of which he is theadvisory board chairman. He also volun-

teers for the Northern KentuckyVolunteer Lawyers Association, provid-ing low-income residents free representa-tion on family law matters. ProfessorBales teaches Civil Procedure,Employment Law, EmploymentDiscrimination, ADR in the Workplace,Labor Law, and Arbitration Law.

Angela R. Stephens,whose practice focuseson construction con-tract litigation andalternative dispute res-olution, has beennamed a GreenAdvantage CertifiedProfessional. She wasawarded the certifica-

tion on March 18, 2010 by GreenAdvantage Inc. Green Advantage is anindependent body established with grantfunding from the United StatesEnvironmental Protection Agency andThe Nature Conservancy, in collaborationwith Science Applications InternationalCorporation and the University of

J. Guthrie True

Richard Bales

Angela R. Stephens


Have an item for

WHO, WHAT,WHEN &WHERE?

The Bench & Bar welcomes brief announcements about member placements, promotions, relocations andhonors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, KentuckyBench & Bar, 514 West Main Street, Frankfort, KY 40601. There is a $10 fee per photograph appearingwith announcements. Paid professional announcements are also available. Please make checks payable tothe Kentucky Bar Association. The deadline for announcements appearing in the next edition of Who,What, When & Where is August 1st.


WHO, WHAT, WHEN & WHEREFlorida. Stephens completed a two-daycourse administered by the KentuckyU.S. Green Building Council chapter inLouisville and then passed an exam givenat the University of Louisville. As thenewly elected education chair for theKentucky chapter of the U.S. GreenBuilding Council, Stephens is nowcharged with teaching sustainable build-ing construction throughout the state.

The InternationalMasters of GamingLaw (IMGL) hasnamed Stites &Harbison member IanRamsey as a generalmember representingKentucky in theorganization. IMGL isan invitation-only,

non-profit association dedicated to theeducation and advancement of the gam-ing law profession whose membershipexceeds 200, representing more than 38countries, 32 U.S. states, and theDistrict of Columbia. Ramsey is the

chair of the firm’s gaming law groupand is a frequent author and presenteron the subject of gaming law.

Huddleston Bolen LLP is pleased toannounce that Justin S. Gilfert hasbeen admitted to the North CarolinaBar. Gilfert has practiced in Kentuckysince 2004 and will remain in the firm’sLouisville office while offering servicesto his clients in Kentucky and NorthCarolina. He focuses his practice in theareas of litigation, corporate formationand risk management, transportation,products liability, and estate planning.

Joseph L. Fink III, Professor ofPharmacy Law and Policy at theUniversity of Kentucky College ofPharmacy, was recently recognized as a2010 Pellegrino Medalist in Bioethicsby the Healthcare Ethics and Law(HEAL) Institute at Samford Universityin Birmingham, Alabama. The award isnamed in recognition of the many con-tributions of Dr. Edmund D. Pellegrino,the Founding Chair of the Department

of Medicine at the University ofKentucky College of Medicine.

RELOCATIONRoland P. Merkel announces the relo-cation of his Franklin County law officeto the McClure Building, Suite 502, at302 West Main Street in Frankfort. Hispractice includes business contracts andlitigation, family law, probate, andmediation. He may be reached by tele-phone at (502) 227-1123. Merkel main-tains his Lexington location in the CourtSquare Building, Suite 600, at 306 WestMain Street in Lexington. He may bereached there at (859) 263-1123.

Ian Ramsey

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JULY

20 Video Replay: Professionalism, Ethics & Substance Abuse InstructionCincinnati Bar Association

21 Workers’ Compensation: The Employer’s PerspectiveCincinnati Bar Association

21-23 Annual Myrtle Beach SeminarPike County Bar Association

22-23 37th Annual Midwest/Midsouth Estate Planning InstituteUK/CLE

23 Leadership for LawyersLouisville Bar Association

AUGUST

3 Video Replay: Mechanic’s Liens, Criminal Defense, Personal InjuryCincinnati Bar Association

4 The New Form 990 – Lessons Learned from the First FilingCincinnati Bar Association

17 Environmental Law Brown BagLouisville Bar Association

18 Negotiating Commercial Loan DocumentsCincinnati Bar Association

18 Bankruptcy Law Brown BagLouisville Bar Association

19 Social Security Brown BagLouisville Bar Association

CLEventsFollowing is a list of TENTATIVE upcoming CLE pro-grams. REMEMBER circumstances may arise whichresult in program changes or cancellations.You must contact the listed program sponsor ifyou have questions regarding specific CLE programsand/or registration. ETHICS credits are included inmany of these programs. Some programs may not yetbe accredited for CLE credits - please check with theprogram sponsor or the KBA CLE office for details.

NOTICE REGARDING CLE ANNUAL STATEMENTSFOR THE 2009-10EDUCATIONAL YEAR

In an effort to increase efficiencyand cut down on costs, the KentuckyBar Association has discontinued itspractice of sending out CLE AnnualStatements to the entire membership.Instead, members who are not yet CLEcompliant will receive a second cour-tesy reminder in mid-to-late July,2010, regarding the end of the educa-tional year passing and the August 10,2010, deadline for reporting creditsearned but not reported during theeducational year.

KBA members are reminded thattheir complete, official CLE statementsare available 24/7 via the KBA websiteand on paper by request through theCLE Department. Members mayaccess their CLE statements online athttp://www.kybar.org/28


19-20 Midwest Regional Bankruptcy SeminarCincinnati Bar Association

20 Legal Writing Tips for Young LawyersLouisville Bar Association


24 Probate & Estate Law Brown BagLouisville Bar Association

26 Corporate Law Brown BagLouisville Bar Association

27 Leadership through ServiceLouisville Bar Association

SEPTEMBER

1 Retirement Plans for Small & Medium FirmsCincinnati Bar Association

2-3 Kentucky Law Update – LouisvilleKentucky Bar Association

10 30th Annual Conference on Legal Issues for Financial InstitutionsUK/CLE

10 Criminal Law Brown BagLouisville Bar Association


14 Intellectual Brown BagLouisville Bar Association

15 Professional Development: Self-Advocating in a Developing MarketCincinnati Bar Association

15 Health Law Brown BagLouisville Bar Association

15-17 Kentucky Justice Association Annual ConventionKentucky Justice Association

21 All Ohio Annual Institute on Intellectual Property (Cincinnati)Cincinnati Bar Association

22 All Ohio Institute on Intellectual Property (Cleveland)Cincinnati Bar Association

23-24 Kentucky Law Update – Bowling GreenKentucky Bar Association

24 Labor & Employment LawCincinnati Bar Association

29 Video Replay: Professionalism, Ethics &

Substance Abuse InstructionCincinnati Bar Association

30-1 Kentucky Law Update – OwensboroKentucky Bar Association

Kentucky Bar AssociationCLE Office

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KYLAPSuzanne Green • (502) 564-3795

Louisville Bar Association Lisa Maddox • (502) 583-5314

Chase College of LawBonnie Osborne

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Kentucky Justice Association (formerlyKATA)

Ellen Sykes • (502) 339-8890

AOC Mediation & FamilyAmanda LeMaster

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Kentucky Department of Public AdvocacyCourt Services

Jeff Sherr or Lisa Blevins(502) 564-8006 ext. 236

UK Office of CLEMelinda Rawlings • (859) 257-2921

Mediation Center of the Institute forViolence Prevention

Louis Siegel • (615) 662-0026

Northern Kentucky Bar AssociationJulie L. Jones • (859) 781-4116

Children’s Law CenterJoshua Crabtree • (859) 431-3313

Fayette County Bar AssociationMary Carr • (859) 225-9897

CompEd, Inc.Allison Jennings • (502) 238-3378

Cincinnati Bar AssociationDimity Orlet • (513) 381-8213

Pike County Bar AssociationLee Jones • (606) 433-1167

Access to Justice FoundationNan Frazer Hanley • (859) 255-9913

Administrative Office of the CourtsAmanda LeMaster

(502) 573-2350, Ext. 4250


Great BooksGreat IdeasGreat Conversations

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Medical & Professional License Defense

Elder & Good, PLLC offers its services to attorneys,physicians, nurses, dentists, pharmacists and otherlicensed professionals before their state boardsand licensing agencies in Kentucky and Ohio. Weassist our clients with Board investigations, disci-plinary hearings & appeals, board application is-sues and, depending on their particular fields,hospital actions and Medicare, Medicaid & Insur-ance exclusions.

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MINING ENGINEERING EXPERTSExtensive expert witness experience.Personal injury, wrongful death, acci-dent investigation, fraud, disputes, estatevaluation, appraisals, reserve studies.JOYCE ASSOCIATES 540-989-5727.

WHISTLEBLOWER/QUI TAMS:Former federal prosecutor C. DeanFurman is available for consultation orrepresentation in whistleblower/qui tamcases involving the false submission ofbilling claims to the government. Phone: (502) 245-8883 Facsimile: (502) 244-8383 E-mail: [email protected] THIS IS AN ADVERTISEMENT

OPTHALMOLOGIST: Subspecialtyinterest in neuro-opthalmology.Available for consultation/chart review.Contact John W. Garden, M.D. at 859. 255.1871 or 859.321.0744 (cell).

Recreational Rentals

KY & BARKLEY LAKES: GreenTurtle Bay Resort. Seventy-five luxuryrental condos, 1-4 BR, new Health Clubwith indoor pool, Conference Center, 2 outdoor pools, Yacht Club, DockersBayside Grille, tennis, beach, watersports and golf nearby. The perfect spotfor a family vacation or a companyretreat. In historic Grand Rivers “The

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LUXURIOUS GULF-FRONTCONDO, Sanibel Island, Fl. Limitedrentals of “second home” in small devel-opment, convenient to local shopping. 2 BR, 2 bath, pool, on Gulf. Rental ratesbelow market at $2,400/week in-seasonand $1,300/wk off-season. Call AnnOldfather (502) 637-7200.

Employment

EXPAND YOUR PRACTICE!VETERANS NEEDREPRESENTATIONLearn how at the WASHINGTON, DC SEMINAROctober 23-25, 2010 from NOVAwww.vetadvocates.com877-483-8238

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