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1BENCH & BAR |

Several inside graphics by ©istockphoto.com/JesiWithers

VOL. 81, NO. 6

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

This issue of the Kentucky Bar Association’s B&B-Bench & Bar was published in the month of November.

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

POSTMASTER

Shannon H. RobertsMANAGING EDITOR

Jesi L. EbelharDESIGN & LAYOUT

John D. MeyersPUBLISHER

James P. DadyEDITOR

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

Contents 2 President’s Page

By: Bill Garmer

6 Letter to the Editor

Features: Juvenile Justice 8 Juvenile Justice Reform in Kentucky: A Progress Report

By: Judge Lisa Payne Jones

12 Juvenile Justice Reform in Kentucky: An Advocate’s PersepectiveBy: Rebecca Ballard DiLoreto

Columns

18 Young Lawyers DivisionBy: Eric M. Weihe

20 University of Louisville Louis D. Brandeis School of Law

23 Northern Kentucky University Salmon P. Chase College of Law

24 University of Kentucky College of Law

25 Shop TalkBy: Michael Losavio

26 Effective Legal Writing By: Diane B. Kraft

28 Future of Law Practice By: Amy D. Cubbage

Bar News

30 Order Amending Rules of the Supreme Court (SCR)

42 Order Amending Family Court Rules of Procedure and Practice (FCRPP)

54 KBA Board of Governors Minutes and Upcoming Meeting Dates

60 2017 Fall Swearing-In Ceremony

Departments 62 Kentucky Lawyer Assistance Program

64 Kentucky Bar Foundation/IOLTA

66 Continuing Legal Education

70 In Memoriam

71 Who, What, When and WhereCover Photo provided by: Kentucky Creative Services

On the cover: The seven Justices of the Supreme Court of Kentucky. Back row, from left: Justice Daniel J. Venters, Justice Bill Cunningham, Justice Laurance B. VanMeter, and

Justice Samuel T. Wright III. Front row, from left: Deputy Chief Justice Lisabeth T. Hughes, Chief Justice John D. Minton Jr., and Justice Michelle M. Keller.

| NOVEMBER/DECEMBER 20172

As I went through the statistics on the problems that lawyers have with alcohol use, drug

use and depression, the line from an old movie and the words of an old song came to mind. The line from the old movie is Tom Hanks’ line in “Apollo 13” when they have realized the crew was in serious trouble and Hanks reported to Mission Control

with his famous understatement, “Houston, we have a problem.” The line from the old song is from a song made famous by Neil Diamond, “He ain’t heavy, he’s my brother.” (and sister too).

Do we have a problem? The answer is unequivocally and abso-lutely, yes. Lawyers belong to a group that has a higher incidence of depression, drug addiction and alcohol dependence than any other profession in American society. As a consequence, the legal profession has one of the highest suicide rates of any profession in America and suicide is the third leading cause of death in the profession, behind cancer and heart disease.

While there are many reasons for these statistics, each of us know instinctively one of the main reasons that our profession is so affected by depression, drug addiction and alcohol abuse. It’s because of the very profession that we have chosen to pursue. On the one hand, it is admirable that we have chosen to pursue a pro-fession which at its core involves a commitment to be of service to our fellow human beings. However, that choice by its very nature takes a heavy toll on each of us. How many of us have awakened in the middle of night worrying about the task before us tomorrow? Whether it is a hearing involving child custody, or a trial involving a tragic injury to a once healthy person, or the closing of a major business deal, or a trial where a client’s liberty is at stake. The answer is that every single one of us has awakened in the middle of the night, over and over and over again throughout our careers. The consequence of this is stress, and that stress is constant. Some of us have found ways to relieve that stress in ways that are healthy and beneficial such as running, doing yoga, pursuing a hobby, or doing any number of pursuits to take our minds off of our work. But there are a large number of folks in our profession who seek relief through the use of drugs and alcohol or just try to live with the stress and depression. Some seek self-medicating relief and are able to do so in moderation and it doesn’t have an adverse effect. But for others it becomes a slippery slope that leads to a legion of problems, both personal and professional. A pathway to the abuse of drugs and alcohol. Everyone should be aware of the signs and symptoms, not only for our own well-being but also for the well-being of our friends and colleagues.

As a member of the Kentucky Bar Association Board of Gover-nors, I can tell you that many of the lawyer disciplinary cases that come before us have their genesis in depression, drug addiction and alcohol abuse. The following statistics indicate that lawyers have a much greater problem with depression, drug abuse and alcohol abuse than those in the general population.

FACTS ABOUT IMPAIRMENT:• 60 percent to 85 percent of all attorney disciplinary com-

plaints are related to an impairment issue. • Early intervention and treatment for the affected attorney

often leads to sustained recovery and often helps them avoid bar complaints or sanctions against his or her license.

• Chemical dependency and depression are treatable illnesses. They are not moral defects or lack of willpower.

• Of 104 occupations studied by Johns Hopkins, lawyers were the most likely to suffer depression. The rate of depression among the general population is about seven percent. The current self-reported rate of depression among attorneys is 28 percent, or four times higher than the general population and other professions.

• In the United States, seven percent of the population has an addiction or substance abuse problem. Current research conducted by Hazelden/Betty Ford and the ABA indicates

BILL GARMERKBA PRESIDENT

• Loss of pleasure or interest;

• Change in eating or sleeping habits and/or fatigue or decreased energy;

• Difficulty concentrating and/or slowed movements or restlessness;

• Persistent sadness and/or depressed mood;

• Feelings of guilt or worthlessness and/or thoughts of death or suicide.

(Information compiled by KYLAP)

SIGNS & SYMPTOMS OF DEPRESSION

• Regret the morning after; guilt; remorse; depression; real loneliness; severe anx-iety; terror; or a feeling of impending doom?

• Does my drinking or drug use lead me to question-able environments?

• Do I ever feel I need a drink or drug to face a cer-tain situation?

• Do I need a drink or drug to steady my nerves?

• Do I plan my office routine around my drinking or drug use?

• Have I missed or adjourned closings, court appearances or other appointments because of my drinking or drug use?

• Do I want or take a drink or drug the next morning?)

BECAUSE OF MY DRINKING OR DRUG USE, HAVE I FELT ANY OF THE FOLLOWING?

SIGNS OF SUBSTANCE OR ALCOHOL ABUSE

PRESIDENT’S PAGE

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the rates of addiction for lawyers are between 21 percent and 36 percent, or three to five times higher than the gen-eral population.

• Lawyers self-report hazardous drinking behavior at a rate of 36 percent versus physicians who self-report at 15 percent using the same questions.

• Only seven percent of attorneys have sought help for addiction issues.


These are some of the cold, hard statistics attesting to the fact that our profession has a problem. That’s the bad news. So, what is the good news? Well the good news is that the KBA recognizes that we have a problem and is actively working every day to provide its members with help in dealing with the problem. The Kentucky Lawyer Assistance Program, known as “KYLAP,” is a program that the Bar Association offers to help its members who are struggling with depression, alcohol abuse and drug addiction. Executive Direc-tor Yvette Hourigan runs this valuable program, with the assistance of a network of volunteers from throughout the Commonwealth. KYLAP is there to assist any member of the Bar, including law students, to work to help them overcome their struggles.

The heart of the program and the strength of the program is Supreme Court Rule 3.990 which mandates that all calls to KYLAP are strictly confidential. A lawyer who has an issue may pick up the phone and call KYLAP with assurance that the call is totally confidential. Yvette’s cell phone number is (859) 221-0806. She is available day or night to answer your call and put you quickly in touch with people who may assist you. But equally important is for those of us who know someone who needs assistance, to get that person on the road to seeking help. KYLAP is available to take your call about a colleague. If you call Yvette with information about someone other than yourself, that phone call and that information are subject to the same confidentiality as if you called about your own situation. SO, THE GOOD NEWS: the Kentucky Bar Associ-ation has a vital and active program for assistance.

KYLAP is a program of the Kentucky Bar Association (KBA) that offers help to members of the Kentucky legal community (including law students) who are struggling with mental health issues, such as depression, alcohol and drug abuse, stress, com-pulsive gambling or any other condition that may adversely impact the individual’s personal or professional life. KYLAP contact is confidential and there are no fees for services.

Referrals to KYLAP may be made by the individual in need or anyone concerned about an impaired attorney, judge or law student. It is a safe place to turn for confidential assistance.

The bedrock of KYLAP is a network of volunteer counsel-ors. Most of KYLAP’s volunteers are members of the legal community and many have recovered from alcoholism, drug addiction and/or mental disease or disorders. KYLAP, its staff, and the volunteers stand ready to assist their colleagues in all facets of recovery.

Among the services which KYLAP can offer the individual in need or their support people are:

ASSESSMENT AND REFERRAL: A trained member of the KYLAP staff will meet with the affected attorney, to discuss the problem and recommend available treatment and reha-bilitation options.

INTERVENTIONS: In appropriate situations, a member of the KYLAP staff may make arrangements for and participate in a formal intervention to assist an impaired attorney.Peer Support Network: The affected attorneys may be paired with a recovering lawyer in their area to act as a mentor and assist with their recovery.

EDUCATION AND PREVENTION: KYLAP works with law firms, the courts and bar associations to provide training and education concerning attorney impairment and recovery. In addition, KYLAP makes regular presentations at Kentucky’s law schools regarding impairments and the bar admission process.

STRUCTURED REHABILITATION PROGRAM: In cases involv-ing attorney discipline or admissions problems, KYLAP will implement a structured rehabilitation program to document a participant’s recovery. If the individual chooses, this documen-tation may be taken into consideration by the KBA, the Office of Bar Admissions and/or the Kentucky Supreme Court when determining discipline or recommendations for admission or re-admission.

RECOVERY GROUP MEETINGS: KYLAP facilitates weekly, open 12-step recovery meetings weekly in Lexington and Newport and monthly in Louisville. Check our website at www.kylap.org for dates and times.

STUDENTS WITH BAR APPLICATION ISSUES: All applicants seeking admission to the Kentucky Bar are expected to fully disclose any physical or psychological issue that may impair his or her ability to practice law. KYLAP is available to discuss any law student’s or applicant’s situation in a confidential setting prior to submission of the Bar Application. In addition, when appropriate, KYLAP can implement a structured rehabilitation program for each individual that documents his or her efforts to address the issues in question.


So, as I am reminded of Tom Hanks’ famous line in “Apollo 13,” the line applies to all of us. “Houston, we have a problem.” But we need not despair. The KBA is there, literally 24 hours a day to provide help with the problem. And, remember the other line from the old song, “He ain’t heavy, he’s my brother” (and sister) and when you know of someone who is struggling, remember KYLAP is there to help you in that situation. Don’t hesitate to pick up the phone and call for assistance. YOU COULD WELL BE SAVING A FRIEND’S LIFE.

PRESIDENT’S PAGE


A n article in the July/August issue of the Bench & Bar titled “Dunn is Done,” discussed the Kentucky

Appellate Court decision in Hays v. Nation-star Mortgage, LLC, 510 S.W.3rd 327 (Ky. App. 2017) and its effect on lien priority in Kentucky. In approving the ruling in Hayes that Kentucky Legal Systems v. Dunn, 205 S.W. 3rd 235 (Ky. App. 2006) was at odds with the Supreme Court’s decision in Mortgage Electronic Registration Sys-tems Inc. v. Roberts, 366 S.W. 3rd405 (Ky. 2012) because it created an exception to the Kentucky’s race-notice statutes (KRS 382.270-.280), the article failed to recog-nize that Dunn had no race-notice issues in it and, additionally, only applied to purchase money mortgages (PMMs) against the buyer/borrower. Although Hays correctly ruled that the judgment lien against the seller of the property had priority over the purchase money mortgage from the buyer, all other conclusions are incorrect because they are based on a misinterpretation of Dunn and a misapplication of Kentucky’s race-notice statutes.

In Hays, the court properly rejected Nation-star’s argument that a PMM had priority over a prior judgment lien against the seller. The problem was in thinking, as Nationstar argued, that Dunn gave priority to a PMM over all judgment liens which attach to the property. It does not. Every closing attor-ney in the state would require the payment of existing liens on real property as a pre-requisite to closing. (Footnote 1 in Hays states the record does not reveal why the lien wasn’t paid at closing.) Never in Dunn or in any case or commentary, including the Restatement (3rd) of Property, which is quoted in support of the Dunn decision, is there any suggestion that prior judgment liens against a seller are not nor should not be superior to a PMM from the buyer. It

is hard to believe this was not recognized before an appeal was necessary.

One would think that in the 200+ years of Kentucky Jurisprudence that the PMM issue would have been settled long ago, as it has in almost every other state in the Union. The reason is that the statute permitting judgment liens to apply to after acquired property only became law in 1988. Dunn was a case of first impression in Kentucky and the Court followed the Restatement’s line of reasoning that a PMM puts a cred-itor in a better position to collect the debt owed to it because the debtor now has an asset to which a lien can attach. This line

of reasoning makes no sense if a creditor of a seller can’t enforce its lien when the property is sold.

Hays also failed to recognize the fact that a lien which will attach to property acquired after the filing date doesn’t actually attach to the property until the debtor acquires it. The Supreme Court concluded in Whayne Supply Co. Inc. v. Commonwealth of Ken-tucky Revenue Cabinet, 925 S.W. 2nd 185 (Ky. 1995) that a state tax lien is inferior to the interest of the holder of a purchase money security interest because the debtor had not fully paid for the property. The State cannot have a claim on property that

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LETTER TO THE EDITOR

LETTER TOTHE EDITOR: Reader Takes Issue with Hayes Decision Article

DUNN IS NOT DONEMore Litigation to Follow BY: ANDY COX

7BENCH & BAR |

is better than that of the debtor, therefore the State had only a lien on the debtor’s equity, not the entire property. The sub-ject of the Whayne case is personalty but a PMM is also a purchase money security interest and the reasoning that applies to one must apply to the other. Whether the property is personalty or realty, each were acquired by borrowing money to purchase the property in question. The Whayne Court defended the UCC statute at issue (KRS 355.9-10) by arguing it was designed to protect one who furnishes property by providing a security interest in the prop-erty until the purchase price has been paid. It went on to say: “This is consistent with the common law rule enabling a purchase money mortgagee, even one with notice, to prevail over the holder of a prior security interest claiming under an after-acquired property clause.” Whayne at page 187. Obviously, the Kentucky Supreme Court once thought - not so long ago - the ruling in Dunn was correct.

The Dunn decision did not test the race-no-tice provisions of the Kentucky Revised Statutes by carving out an exception under the doctrine of equitable subrogation as the “Dunn is Done” article states. The reasoning for the priority of PMMs and the doctrine of equitable subrogation are entirely differ-ent. In fact, the Dunn case never mentions the term “equitable subrogation.” Race-no-tice arguments don’t apply to PMM’s because the buyer/borrower/debtor acquires the property with a lien for the purchase money already on it.

If the Hays Court had just made its ruling and quit, it wouldn’t be significant. But, even though the Hays Court realized that Dunn was not about equitable subrogation, its misapplication of the race-notice stat-utes cited in Roberts lead it to believe that the two were at odds and decided that Rob-erts overruled Dunn by implication.

If the Hays interpretation of the race-notice doctrine is to be followed, a judgment lien on a purchaser which was filed before one on the seller would be ahead of one on the seller. A seller on a vendor’s lien (which is the equivalent of a PMM) would lose prop-erty he or she hasn’t been paid for because there was a prior judgment lien on his or her buyer. Can a lien attach to property

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before the debtor owns it? Is this what our race-notice statues mean? Is this really the law in Kentucky?From 2006 to 2017, PPMs have been acknowledged to have priority over judg-ment liens on buyer/borrowers. Now there is an appellate case which says they do not. I anticipate that there will be further lawsuits over this issue. Hopefully, a future appellate court will recognize the differ-ence in the fact situations between Hays and Dunn, distinguish one from the other and overrule the part of Hays which over-ruled Dunn.

The Hays decision has no adverse effect on professional lenders or title insurance companies. They will simply require that all liens on buyers be paid before closing. The persons affected are those who would buy a home but now can’t and those who would sell a home but now can’t. The cred-itors of would be buyers won’t be helped either because their liens still won’t be paid.

Contributor Tricia Johnson was invited to reply to Mr. Cox’s letter to the editor. Her response follows below.

Thanks to Mr. Cox for shedding addi-tional light on the subject. His letter illustrates that the law in Kentucky on lien priority is unsettled and that the real estate bar must tread carefully in the course of practice in attempting to harmonize these appar-ently divergent decisions.

CONTRIBUTOR PATRICIA JOHNSONREPLIES...

In 2013, members of Kentucky’s Juvenile Justice Task Force were escorted into the Adair County Youth Development Center (YDC). To enter the facility, Task Force members were screened

and ushered through a thick metal door one at a time, the locking mechanism clanking into place with a resounding echo each time the door swung shut. Inside there were more metal doors with tiny widows no larger than a sheet of paper. Behind each door was a shelf bed, a stainless steel toilet, a sink, and a child. The chil-dren wore uniforms and marched down hallways with their hands clasped firmly behind their backs and their eyes focused on the floor. Memos on the wall warned them not to make eye contact. There was no artwork on the walls. Tacked to a bulletin board were GED certificates; no one received a high school diploma. The exercise yard was a cage less than half the size of a basketball court. It was clean. It was quiet. It was unnerving. Jail is no place for a child, but too many of Kentucky’s children were being placed behind bars. That had to change.

Spurred on by the passage of several reforms to the adult criminal code, Kentucky convened a Juvenile Justice Task Force in 2012. The Task Force was charged with studying Kentucky’s Unified Juvenile Code, reviewing the operation of the juvenile justice system within the state, and making recommendations for reform that would improve public safety and provide better outcomes for Kentucky’s children and families, while still holding offenders accountable. The work of the Task Force continued in 2013 with invaluable new partners: The Pew Charitable Trust and the Crime and Justice Institute. Experienced in launching legislative reform efforts, the new partners provided focus for the Task Force, insisting that effec-tive system reform must be data driven. This posed a big problem.

Collecting data from multiple agencies using different data systems was the first major challenge for the Task Force. The data entry system used by the Administrative Office of the Courts (AOC) had been designed for adult criminal cases, not juvenile diversion. The Department for Community Based Services (DCBS) data relating to children committed to the state as status offenders had to be culled by hand. Neither the Department of Juvenile Justice (DJJ), nor the AOC, nor DCBS, nor any of Kentucky’s many school districts had a system that allowed for interface with the other state agencies. Furthermore, the agencies did not share a common lan-guage, differing in the interpretation of fundamental words such as race, complaint, petition, and arrest. While these obstacles made data collection difficult, they also led to much needed inter-agency dia-logue, communication, and technological updates moving forward.

Once the data was in-hand, it painted a shocking picture. Ken-tucky reflected the national trend of lower juvenile crime rates from 2002-2013. This included lower rates of violent offenses. The population of Kentucky’s children placed out of home for their offenses had been steadily falling as well. However, these out-of-home placements increased by an alarming 16 percent during 2012 and 2013. Additionally, a study of those children held in out-of-home placement revealed that the majority had committed status offenses or misdemeanors. Status offenses are acts considered an offense only because of the offender’s status as a minor, such as being a runaway or truancy. Kentucky ranked fourth in the nation for youths incarcerated for status offenses. Even more surprising,


Features:JUVENILE JUSTICE

9BENCH & BAR |

the length of stay in an out-of-home placement for this population of low-level status and misdemeanor offenders averaged only one month less than youths adjudicated as felons. The 10-year trend in Kentucky showed that a growing percentage of youth in out-of-home placement were non-violent misdemeanants, status offenders, and violators. On average these non-violent youths were being held away from home for longer periods of time than adults charged with similar offenses in many cases. National data shows unequivocally that juvenile detention increases the risk for a litany of social issues, such as school drop-out, mental health-related illnesses, future job-lessness, future suicide, and recidivism. Therefore, the Task Force was faced with the realization that business as usual in the Kentucky juvenile justice system was harmful to the children it was designed to help. It was a danger to community welfare and public safety and it was expensive.

Fiscal mapping revealed that DJJ spent more than half of its annual budget on youths in out-of-home placement, at a cost of $87,000 per bed per year. In addition, over six million dollars per year was spent housing the children placed into DCBS custody for status offenses. Comparatively, community-based services such as pro-bation made up only 21 percent of the DJJ budget. Frequently, judges complained that the lack of community resources influenced their decision to place children out of home. That same decision continued to direct dollars and resources towards the crisis of the ever-growing out-of-home population, creating a vicious cycle and sweeping low-level offenders into the deep-end of the system.

There was an available alternative, not just to out-of-home place-ment but to the entire formal court processing of juveniles charged with low-level offenses. Housed within the AOC, the Court Des-ignated Workers (CDW) were created to be gatekeepers to protect juveniles from unnecessary entry into the formal juvenile justice system. A CDW responded to every juvenile arrest and complaint in the Commonwealth, offering low-level first-time offenders the opportunity for diversion, a community-based plan for education, prevention, accountability, and treatment. In 2012 and 2013, 91 percent of public offenders offered diversion successfully completed the CDW program. The success rate for status offenders offered diversion was at 74 percent in 2012, and rose to 76 percent in 2013. Recidivism was also low among those youths who successfully completed diversion. From 2011 to 2012, three-quarters of public offenders successfully completing diversion had not reoffended within one year. During that same time-frame, approximately 70 percent of status offenders who had been successful on diversion remained free of any new offenses.

Unfortunately, the CDW diversion program wasn’t offered to every eligible child. Some prosecutors and judges demanded that certain cases or certain children be handled through the courts. Elsewhere, there existed so-called standing orders, policies or pro-cedures which had been implemented by judges or prosecutors overriding the diversion process and requiring the CDW to file certain types of cases directly with the juvenile court. Many of these orders pertained to drug-related offenses and truancy cases. Still, others were so broad they encompassed any offense committed on school property. Some had been in place for years with no one even

remembering who had issued the original directive, but following it nonetheless. As a result of these overrides, many Kentucky children were denied the opportunity for diversion. Data from the AOC revealed that 43 percent of children referred to court as public offenders and 29 percent of status offenders referred to court were due to diversion overrides. They were funneled into the formal court system where they were placed under court orders, and where their chances of spending time in detention dramatically increased.

The Task Force was presented with stories from public defenders and youth advocates, where a single missed school day, a positive drug test, or even a C-grade on a report card resulted in a child being incarcerated for violating court orders. In 2012, most of the children in out-of-home placement through DJJ were charged with violating probation or court orders. Of those children, 70 percent did not have a history of felony offenses, and 86 percent had two or fewer prior adjudications. The courts, schools, law enforcement, prosecutors, social workers and even parents viewed detention and commitment as a wake-up call to unruly youth, and a way to address a wide range of issues, including substance abuse, and mental and behavioral health.

The 2013 trip to the Adair County YDC was indeed a wake-up call, but it was a wake-up call for the Task Force. As the door slammed shut with a clang behind them, they realized this was not a school. This was not a treatment facility. This was not a place for healing or hope. This was a jail, and there were several more just like it all across the state. The bars and the doors and the razor wire were there to protect the public from what was inside, but, according to the Task Force’s own data, most of the children locked up were not dangerous.

That was the last meeting before the Task Force released its rec-ommendations, which called for the following: enhanced access to diversion, reduced out-of-home placements, a validated risk screen-ing tool to aid judges in deciding whether a child could safely remain in the community, increased evidence-based programming and individual treatment plans for youth placed in the custody of DJJ, reinvestment savings into local communities to augment resources and services available to children and families, and legisla-tive oversight of the reform implementation process. Most of these ideals were codified in Senate Bill 200 (SB 200), which became law in July of 2014. SB 200 created a sea change for juvenile justice in the Commonwealth of Kentucky, and became a standard for similar reform efforts nationwide. All of this was done without an influx of additional monies into the juvenile justice system.

In the two years since implementation, much has been accomplished.

ENHANCED ACCESS TO DIVERSIONKentucky expanded and improved the CDW diversion program in three ways. First, SB 200 created mandatory diversion for all non-felon first-time offenders, and abolished the use of standing orders and overrides. In addition to mandatory diversion, juvenile clients were eligible to receive three other diversion opportunities. Even one Class D felony could be diverted if the county attorney granted permission.


Second, with on-going technical assistance from PEW and CJI , and a grant from the federal Office of Juvenile Justice and Delin-quency Prevention, every CDW in the state received training on the Principles of Effective Intervention (PEI). PEI is an evidence-based method of working with youths at risk for future delinquency. Research has shown that over-servicing and over-supervising low-risk youths actually leads to increased recidivism. Therefore, the keys to a successful diversion program are identifying youths at high risk for ongoing delinquent behavior, crafting diversion agreements to reduce risk factors that have the greatest impact on future delin-quency, utilizing cognitive interaction skills to address barriers to success, and implementing other evidence-based programming and screening tools to achieve the desired results.

Finally, SB 200 created in every county a Family Accountability, Intervention, and Response Team (FAIR Team), which is a com-munity collaboration facilitated by a specially trained case manager, called a Court Designated Specialist, to review the diversion agree-ments with high-risk children to increase their opportunity for success.

REDUCTION OF OUT-OF-HOME PLACEMENTS While increasing the use of diversion reduces the number of chil-dren entering the court system and, consequently, reduces the number of children entering detention and residential facilities, SB 200 pushed the envelope even farther. Under new provisions of the Unified Juvenile Code, limits are placed on who can be committed to DJJ. Status offenders, even those who violated court orders, will no longer be subject to DJJ commitment. Misdemeanor and Class D offenders can only be committed if they are adjudicated of a sex offense, an offense involving the use of a deadly weapon, or they have a minimum of three prior non-status adjudications. Further-more, both the courts and DJJ probation officers are required to impose graduated sanctions for violations of probation terms or court orders. This means alternatives to detention or commitment must be attempted and documented before a child can be sanc-tioned with detention or out-of-home placement through DJJ. Finally, a statutory limit, a sentence not to exceed 30 days of deten-tion, is now in place to reduce the amount of time a child spends incarcerated once a judge determines all lesser sanctions have failed.

Upon passage of SB 200, DJJ and the courts agreed that any child in detention or commitment at the time the new law took effect, but who would not have been detained or committed under the new law, should be released. Thus, several children who had spent months and even years in DJJ custody were freed, resulting in a sudden decrease of children in out-of-home placement.

DEVELOPMENT OF A VALIDATED RISK SCREENING TOOLAlthough SB 200 became law in 2014, implementation of the most sweeping changes was delayed for one year. During that year, the groundwork was laid to implement the law: Uniform Rules of Practice and Procedure for Juvenile Court were drafted; judges, CDWs, juvenile probation officers, prosecutors and public defenders received extensive training on the new law; new forms were drafted to follow the new provisions of the law and protect the due process

rights of juvenile offenders; FAIR Teams were rolled out across the state and began to review cases; protocols were created for the use of graduated sanctions; and DJJ designed and began the validation process for a new risk assessment tool to be administered to every child adjudicated in juvenile court. DJJ workers also received train-ing on the Principles of Effective Intervention, and were monitored and trained to ensure their assessment instruments were scored correctly, increasing interrater reliability from 55 percent to 80 per-cent. The increased consistency in scoring reduced subjectivity and led to more accurate assessments, better case-planning, and more youths successfully completing the terms of probation.

INCREASED USE OF EVIDENCE-BASED PROGRAMMING FOR JUVENILESIn the early days of the Task Force, various groups came to tout programs they had developed. Those presentations became rare once it was clear that no new money would be invested in the juvenile justice system. Without new revenue, SB 200 was drafted to demand that the limited funds available for programming go to those interventions with a proven track record of success in reducing recidivism.

Surprising to many on the Task Force and many more throughout the Commonwealth, the old notion of Scared Straight tactics to shock youth into good behavior, actually had the opposite impact. Taking juveniles on tours of jails and prisons, forcing them to listen to adult convicts narrate the horrors of incarceration, and locking them in jail cells increased recidivism. The touted success of the Scared Straight programs was only anecdotal and not supported by data. Other popular interventions like juvenile boot camps, tradi-tional probation, and wilderness challenge programs had no effect on recidivism either positive or negative. On the other hand, many interventions popular elsewhere in the nation such as Functional Family Therapy (FFT) and Multisystemic Therapy (MST) have been shown to reduce recidivism as much as 16 percent. Successful evidence-based programming has the data to prove its effectiveness. Unfortunately, such programs often come with a hefty price-tag.

Envisioning that DJJ would see savings from the SB 200 reforms, the new legislation required the agency to convert the antiquated one-size-fits-all programming found in its residential programs to individualized case plans utilizing a mostly evidence-based curricu-lum. While the funds are not yet available to allow widespread access to FFT and MST, the DJJ has incorporated the use of Aggression Replacement Training, another successful evidence-based program, into all its facilities. The CDWs, FAIR Teams, and the DJJ proba-tion officers must also ensure the youths they supervise are referred to evidence-based programs in the community.

REINVESTMENT OF SAVINGS INTO LOCAL COMMUNITIESWhile Kentucky’s juvenile justice reforms began as an unfunded mandate for change across the three branches of government and various agencies, SB 200 held out a glimmer of hope. The Fiscal Incentive Program was designed to protect any savings realized by the DJJ as it began to reduce the number of children in out-of-home placement. This savings was earmarked for reinvestment


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ABOUT THE AUTHORJUDGE LISA PAYNE JONES is the chief District Court judge for Daviess County, where she has served as a district judge for 16 years. She is a member of the state's Juvenile Justice Oversight Council, the Kentucky Center for School Safety, and the Juvenile Justice Advisory Board's Subcom-mittee on Equity and Justice for All Youth. She previously served on the Juvenile Justice Task Force and helped draft Kentucky's first statewide rules of practice and procedure for juvenile cases. Chief Justice of Kentucky John D. Minton Jr. awarded Judge Jones the 2015 Chief Justice's Special Service Award for her service as a district judge and her work in the areas of family and juvenile law. She is a graduate of Brescia University and earned her juris doctor at the University of Kentucky College of Law.

in DJJ’s Day Treatment Programs, and the development of juve-nile services and resources in rural communities. Having more evidence-based services locally available is expected to reduce the number of children referred into the juvenile justice system for the sole purpose of accessing treatment.

LEGISLATIVE OVERSIGHTThrough the Task Force process, the actors in Kentucky’s juvenile justice system realized they needed to hold themselves account-able to guarantee the success of such a major change in practice. The Juvenile Justice Oversight Council was created to preside over implementation of the SB 200 reforms, to monitor the data and ensure the goals of the reform effort were met, and to make rec-ommendations to guide future reforms.

It has been two years since SB 200 went into action. So far the results are promising. Crime rates among juveniles continue to fall. The number of cases receiving diversion has increased 31 percent, while the number of cases referred to court for formal processing has dropped 38 percent. The CDW office has maintained the high rate of achievement for their diversion program, showing 90 percent of all diversions are successfully completed and 75 percent of those youth do not recidivate within the following year. Furthermore, over 3,000 cases have been reviewed by Kentucky’s FAIR Teams. These are cases which would have been referred to court prior to SB 200, but, thanks to the diligence, compassion and creativity of local community partners, more than one-half of that number have avoided court referral. The stories of success coming from FAIR teams in some of the most rural communities with the fewest resources are inspiring.

As anticipated, the number of children placed out of home in the DJJ custody has significantly declined. There has been an overall reduction of 44 percent in the out-of-home population, with a 55 percent reduction in the commitment of misdemeanants and a 63 percent reduction in commitment for probation violations. These reductions have enabled DJJ to recently close three facilities. The savings have already been used to fund the Fiscal Incentive Grant. By Sept. 1, 2017, all Kentucky counties will have received infor-mation to apply for grant monies to develop local evidence-based resources.

As with any reform effort, there have been unintended conse-quences. Although FAIR Teams have referred very few cases to DCBS for action, the number of children committed to DCBS in the wake of SB 200’s passage has continued to increase. In part, the increase coincides with the opioid epidemic which has engulfed the Commonwealth. But the decriminalization of status offenders at the same time the state raised the high school drop-out age to 18 has also likely had an effect. Furthermore, as more children try to access resources within their home communities, the dearth of quality mental health and substance abuse services has become apparent. All of this has created a perfect storm catching DCBS and the Commonwealth unprepared.

Throughout the reform effort, the Juvenile Justice Oversight Coun-cil has reviewed data on disproportionate minority contact (DMC)

at all levels of the juvenile justice system. There is no doubt that disproportionality has long existed in the Commonwealth. And, while the SB 200 reforms have reduced the total number of children in the juvenile justice system, disproportionality still exists. In some places, like Jefferson County, it exists at rates which far exceed those pre-reform. In spite of extensive efforts to completely eradicate judicial and prosecutorial overrides of the diversion process, 4,492 overrides occurred statewide in 2016. Of those overrides, 41 percent affected children classified as black, even though black youth make up only nine percent of Kentucky’s general juvenile population. Conversations about race are never easy, but they can’t be ignored. Kentucky’s work on juvenile justice reform isn’t complete if we have failed to improve the outcomes for every child, no matter the color of their skin, socio-economic status, or address. DJJ and AOC have taken this to heart and have required any community seeking money from the Fiscal Incentive Grant to address dispro-portionality locally.

*****

True to its mission, the Juvenile Justice Oversight Council ( JJOC) continues to meet, to collect and review data, to hear from stake-holders, and to remain abreast of the issues relating to juvenile justice, including the latest studies on adolescent brain development and trauma. The JJOC has helped advance laws to improve access to juvenile expungement. Twice now, the JJOC has supported legis-lation to improve data collection and address DMC, and will most certainly do so again. They have encouraged legislators to adopt a minimum age of criminal responsibility to prevent children as young as four years old from being charged with offenses, prohib-ited the indiscriminate shackling of juveniles through the Juvenile Rules, and debated much needed changes to Kentucky’s Youthful Offender statutes.

There is still much work left to do, but the steps Kentucky has already taken towards reform are helping it lead the nation in build-ing a better system for its children.

Statistics cited in this article can be found in the “Report of the 2013 Task Force on the Unified Juvenile Code,” and in the data presented to the Juve-nile Justice Oversight Council regarding SB 200 Performance Measures.


Offering the Long View: Receptivity towards advocacy for youth in the context of status, delinquency, and youthful offense cases has changed for the better in Kentucky both because of the U.S. Supreme Court’s mandate in its series of five significant cases rec-ognizing children as categorically different and as a consequence of SB 200’s requirement that we bring the science of adolescent development into the Courtroom.

THE LONG VIEWI began my practice as an advocate for juveniles in 1985, the year before the Kentucky Juvenile Code was enacted. Defending youth at the trial, appellate and post disposition/conviction stage, I covered all regions of our Commonwealth. With others, I prepared flow charts and legal analysis for the first book published on the new juvenile code, wrote the first three DPA Juvenile Law Manuals and edited the most recent one and I have been privileged to teach courses on children in the law to public defenders, law students and undergraduates. Given my lengthy journey, it is refreshing to see everyone come to the table in recognition that children are indeed categorically different and deserve to have their immaturity con-sidered in how they are treated by our justice system.

LAUNCHING OUR REFORM EFFORTIn the summer of 2008, I was fortunate to be in a position to influ-ence policy reform. I could apply what I knew about the system from my day to day experiences on behalf of children to inform a group effort for statutory and regulatory changes on behalf of Kentucky’s young people. My partners in the nascent reform effort were Department of Public Advocacy Post-Trial Division Director, Tim Arnold and Kentucky Youth Advocate Policy Director, Tara Grieshop-Goodwin.

AN ILLUSTRATIVE CASEAt around the same time as we began our pursuit, a Family Court Judge gave me a call. The judge asked if I would take on the repre-sentation of a child in her court for truancy. She had put him in the juvenile detention center because when she arraigned him on the charge of being a habitual truant, he told her he would not return to school unless she could fix the situation for him. In response, she locked him up and there he sat in juvenile jail for eight days.1

We will call my client, Robert. I took a law clerk with me to meet him. Robert was more hair than boy, long brown curly hair and big eyes, loaded with tears for the past several days. He had not slept well since he was locked up. He looked stunned, maybe even shell shocked. He was not given a defined sentence to serve. He did not know when he would go back to court or when he might get out of jail.

We talked about what happened at court, his struggles at school and what was going on at home. He had committed no crime. He just could not promise the judge he would go to school because it made him miserable. It was late August, Robert was a freshman, his first time in a large high school that pulled its student body from a number of middle schools in town. The assistant principal had been on his case the last several days he had been at school. Robert reported that the administrator had followed him in the hallways and repeatedly asked him questions about his father.

CHALLENGES AT HOMEI learned from Robert that his mom and stepdad were getting a divorce. You could see his love for his stepfather and his distress over the divorce. His birth dad had really never been around. He was addicted to drugs, mentally ill and homeless. It seemed like he was a big embarrassment to Robert.

Robert expressed absolute surprise that he was locked up with no way out and yet he had not robbed a bank or hurt anyone. An hour was enough time, given my training and experience, to have a pretty good sense of this child’s desperation. I advised Robert that together we would get him out of detention and returned home, meet with the school and set up supports so he might be able to handle the environment better. Emotionally, Robert was better off at the end of our conversation, but he was still locked up. The law clerk and I left Robert at the detention center and returned to my car. My clerk was now the one shell shocked. It stunned her that a child could be put in jail for doing no more than not going to school, especially, when there were so many things happening to unravel his life, that no one had seemed to pay a bit of heed to.


A STRUGGLE TO FIND SOLUTIONS AND AVOIDTHE PENCHANT OF THE SYSTEM FOR INCARCERATIONIt would take a day or two to get the case back in court, and argue for Robert’s release. The judge had realized locking this child up was no solution, but understandably she wanted a plan for him to succeed in school. We got him out and spent the next eight months struggling with the school and other support systems to try and provide help to Robert. Robert had been self-med-icating with marijuana and he acknowledged this. His mom’s health insurance would not pay for any treatment, stating that marijuana was not an addictive drug. Though Robert struggled enormously with focusing his attention and with depression, the school refused to provide him with supports until he was marijuana free. Since I was not a public defender, but a private attorney, I was in a position to appeal the insurance denial and the refusal to provide educational supports. But both efforts took time and Robert just did not have that kind of time, his life was tumbling downhill, one failure, heaped upon another. How much better would it have been if the court had the resources to wrap services around this child, rather than locking him up in detention for not obeying her order to go to school?

ONE FAMILY, ONE JUDGE, ONE COURTIronically, when Kentucky created the Family Court system, the thinking had been that a one judge-one family system would mean children and families would receive access to the services they needed with the guiding hand of a judge acting as parens patriae. Yet, by 2004, most Family Court Judges protested that they had all of the problems in their courtrooms but no access to services.2 The Cabinet for Human Resources [later Cabinet for Health and Family Services] was to be providing social workers in court to assist the judges and connect children and their families with resources. Yet, even in relatively resource rich communities, Family Court Judges said this was not happening. With children on their status offense docket, many, many judges relied on locking up the children for their “refusal” to follow orders, while providing no support for the families whatsoever. The only county where judges refused to resort to incarceration for status offenders were the Family Courts in Jef-ferson County. Some advocates would criticize that those judges who refused to detain these nonpublic offenders, were nonethe le s s too quick to commit a child to the Cabinet for Health and Family Services when the child would not go to school.


Nonetheless, it was undisputed that in the largest county in the state, we were not locking up a child on a truancy charge, whereas we were doing so everywhere else.

BOOTSTRAPPING STATUS OFFENDERS TO BE TREATED AS IF THEY WERE PUBLIC OFFENDERS – A COMMON PRACTICEOutside of Jefferson County, courts routinely chose incarceration as punishment for contempt of court when children failed to attend school. In fact, from 2006 through 2014, Kentucky had been among the top three contenders in the nations in its rate of incarceration of children on status offenses.3 Well aware of this record, Hon. Arnold, Ms. Grieshop and I began in 2008 to push for an end to locking up children for not going to school. We mistakenly thought we were aiming for something relatively easy, a low lying fruit, as it were, by targeting this practice of bootstrapping children from the status offense realm and catapulting them more deeply into the heart of the delinquency system, a consequence of our penchant for incarceration.4 Perhaps we should have aimed for the banana higher up in the tree.

ROPER V. SIMMONS, ADOLESCENT BRAIN DEVELOPMENT AND CHILDREN RECOGNIZED AS CATEGORICALLY DIFFERENT5

To understand where we were in 2009, it is important to recognize the national perspective at that time. In 2005, the United States Supreme Court made a sea change impacting juvenile jurispru-dence by coming to terms with what the sciences had been telling us about young people for the past 30 years. In the case of Roper v. Simmons, the U.S. Supreme Court held that the law must take into account adolescent brain development and the attendant social sciences which have revealed that young people are more vulnera-ble to influences outside of their control, that they are more easily manipulated by their peers, that the frontal lobe of their brains does not fully develop until they reach the age of 25 or thereafter and that young people have a greater potential for rehabilitation than do adult offenders.6 From Simmons, through the cases of Graham v. Florida, Miller v. Alabama, J.D.B. v. North Carolina and most recently Montgomery v. Louisiana, the Supreme Court has declared that children are categorically different and that the justice system must take into account their youthfulness in how it meets out pun-ishment.7 Given the recognition for reform contained in Simmons, 2008-2009 seemed like a good moment in time to reverse course on our treatment of status offenders in Kentucky. 8

JUVENILE JUSTICE AND DELINQUENCY PREVENTION ACT9

Our starting point for reform went back even further. In 1974, Congress passed the Juve-nile Justice and Delinquency Prevention Act [hereinafter JJDPA].10 Like Kentucky’s Juve-nile Code, the provisions in this federal law were written years earlier during Lyndon Baines Johnson’s administration. Among other provisions, the JJDPA urged the deinstitution-alization of children on status offenses and

enunciated standards opposing the use of detention in these cir-cumstances.11 JJDPA urged states to address the underlying reasons that children were truant or ran away from home and to place resources in the community to treat children and their families more holistically. Nearly 40 years later, for the most part, Kentucky was still ignoring this federal mandate. Kentucky and other states justified continued use of detention on these noncriminal offenses by relying upon what is called a “valid court order.” 12

Essentially, a judge ordered a child, such as Robert in our example above, to attend school. Robert failed to obey the order. Robert was jailed, not for a status offense but for violating the order to go to school. As indicated, the practice has been characterized as bootstrapping a noncriminal offense into the criminal realm by virtue of the punishment applied. From an advocate’s perspective, the nonsensical part of this pattern of behavior was that less and less effort was being made to provide supports and holistic interven-tions, while schools were relying more and more upon the power of the court system to enforce school discipline and school attendance. Understandably, the issue of attendance at school is key for public schools who receive their funding based largely on Average Daily Attendance.13

CULMINATION OF FORCES SHAPED KENTUCKY’S TREATMENT OF YOUTH CHARGED WITH STATUS OFFENSESBy 2009, three factors may have influenced the current dilemma in the Commonwealth: first, who represented the youth (impacting how the young people were perceived by the courts); second, which courts these cases were prosecuted in (impacting how the young people were treated by the prosecutors and judges); and third, where the youth were placed if detained (following the adage: if you build them, they shall come).

Prior to passage of the Kentucky Juvenile Code, children charged with status offenses were represented by the civil legal services offices. At that time, these same lawyers frequently represented chil-dren and families in Dependency, Neglect and Abuse [hereinafter DNA] actions. In most people’s minds, the status offenders were closely linked to the DNA cases, not to the Public Offense and Youthful Offense cases. Public defenders handled the delinquency docket and any transfer cases. After the passage of the code, the Department of Public Advocacy agreed to take on the status offense docket along with the rest of Juvenile Court. Thus these cases were added to the public defender caseload.

In 2002, Kentucky launched its Family Court program across the Commonwealth. One Judge, One Court, One Family was the logo.14 In those jurisdictions with a Family Court, Status Offense cases were moved to the Family Court docket. The primary response judges in Family Court had to children doing wrong, was to order the children to do right. Without resources, supervision and family intervention, doing right was not possible. Most of the time this was done with no resources provided to the family, no evaluation of the origins or solutions to any dysfunction and no intervention. The view was that the school had done all it could, now the hammer


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needed to come down on the child. And come down it did. In 2007, 2,270 children with status offenses alone were incarcerated in juvenile detention.15 In Kentucky’s district courts, juvenile court judges had the entire array of misconduct in front of them. These judges also ran the adult felony arraignment and preliminary hear-ing dockets and the adult misdemeanor dockets. When the district court judges presided in juvenile court, they had concern about the youth charged with status offenses, but from a public safety stand-point, their attention was devoted to children charged with robbery, rape and murder. Hence, in that setting, status offenders were not the worst of the worst and putting them in jail when they were not even accused of committing a crime generally seemed a little harsh.

The third shift impacting Kentucky’s juvenile justice system that may have contributed to the picture in front of us in 2009, was the building of state of the art regional juvenile detention centers across the Commonwealth by the Department of Juvenile Justice.16

Judges felt that children were safe if detained in these facilities. They could put orders on a child proscribing their behavior at home and school and if those orders were violated, even before a case was ever adjudicated, the child could experience the sanction of days in detention. The message was clear cut, black and white. The truth ultimately revealed by the Juvenile Code Task Force was that incar-ceration was not a solution, for it almost never took into account that there might be underlying problems which were why the youth were before the court to begin with and it pushed children more deeply into the system without critical services to help the youth and families find their way out. 17

FROM STATUS OFFENSE REVIEW TO FULL SCALE JUVENILE JUSTICE REFORMThe initial bill filed twice by Representative Kelly Flood focused on status offenders.18 Out of that effort, was born the commitment

to establish a task force to look at the problem which then led to passage of SB 200 and the ongoing scrutiny of the Juvenile Justice Oversight Council.19 As with many efforts at policy reform, what the advocates were seeking was not exactly secured, but significant progress resulted. Rather than a focus on status offenders alone, as a low hanging fruit, the chairs of the Task Force conducted a full scale review of the system. With passage of SB 200 in 2014 and then its initial implementation, defense lawyers are seeing fewer cases going to court and more equitable application of diversion (before the standardless denial of diversion ranked as the primary data point for racial disparity in some communities).20 Schools continue to push for children to go to court and continue to claim there are no solutions. DCBS continues to communicate that its staff are stretched too thin to effectively serve the courts and these youth. The State Interagency Council and its regional and local subsidiaries still need to be more integrated.21 With guidance by the Juvenile Justice Oversight Council and SB 200, the tensions on the system are pushing us towards a greater appreciation for how children are categorically different and how our system of justice can better meet their needs. Reform often leads to unforeseen con-sequences, as well. For example, now we have a clearer picture of the racial disparity in the system as youth of color are ever more disparately prosecuted for higher level offenses.

GROWING APPRECIATION ACROSS THE SYSTEM ON IMPACT OF IMMATURITY ON YOUNG PEOPLEWe also have more players in the system recognizing that brain development and youthful immaturity matter and have to be accounted for in the treatment of youth. The struggle youth have with psychological and educational disabilities is now more often taken into account. Stakeholders in the courts, the Administrative Office of the Courts, the Department of Juvenile Justice and other community providers recognize that we have to meet children

where they and their families are at and work to turn around that picture on the ground where the dysfunction is occurring. Residential treatment has its place, but it is not the best option for most circumstances. Graduated sanctions and evidence based interventions are more and more under-stood by key agency players. Instead of shooting in the dark, or acting out of fear that Frankfort will come slamming down on them for being too lenient, well trained Department of Juvenile Justice work-ers are striving to apply evidence based, graduated sanctions. The Department of Public Advocacy has realigned the role of its alternative sentencing workers to strengthen the public defenders’ defense of young clients on serious charges in dis-trict or circuit court with more complete assessments, identification of community resources and tailored sentencing plans that take into account the child’s rehabilitative needs.22 Judges are educated and in nearly


all circumstances, leading this reform effort. Looking back over 30 years of juvenile court practice, the shift in approach to youth-ful behavior in our juvenile, family and criminal justice system is striking and wonderful.

ANTICIPATE CONTINUED APPLICATION OF SIMMONS’ PRINCIPLES AND NEED TO ADDRESS DISPARATE IMPACT ON YOUTH OF COLORAs we move forward, education of system players must continue. Advances in understanding brain development and the social sciences must routinely be integrated into Kentucky’s system. To end racial disparity and accurately respond to the Supreme Court’s mandates in Roper v. Simmons and its progeny, Kentucky should end automatic transfer and perhaps one day all transfer.23 We can have a system that addresses the behavior of young people within the context of their age and hence their maturity level. Such an approach only makes sense given the knowledge we now possess.

ABOUT THE AUTHORREBECCA BALLARD DILORETO worked for the Kentucky Department of Public Advocacy from 1984-2008. Thereafter, DiLoreto was litigation and policy director for the Northern Kentucky Children’s Law Center. Currently, she serves as The Institute for Compassion in Justice’s executive director and Kentucky Association of Criminal Defense Lawyers’ legislative agent.

ENDNOTES1. Some resist calling the juvenile detention center jail. Yet, children are strip

searched when they enter, all personal items taken from them. They are dressed in a jump suit and for the first two to three days placed in isolation. They are not permitted to go to school or engage with others or even call their family until they go through an orientation process which usually takes three days. Once oriented, they must follow all of the rules, all of which are much stricter than were they locked up in the adult jail. Their communications with the other incarcerated youth is very limited and always monitored. They must follow a schedule set by others that includes school. Their showers and all other self-care is regimented. Any phone calls are monitored and limited. Any mail coming in or going out is read and monitored and their correspondence limited to family or counsel. All in all, if my clients believed they could be safe, they would prefer being locked up with the rules of the adult facility rather than in this more restrictive juvenile setting. Yet, it can certainly be argued that the controls in place are for their own good. See https://djj.ky.gov/Pages/Policy-Manual.aspx (DJJ Policy and Procedure Manual for Detention Services.)

2. A. Holland Houston, “Family courts in jeopardy as Kentucky General Assembly mulls measures that will impact children,” in Insider Lou-isville, (March 21, 2016 edition), https://insiderlouisville.com/metro/the-changing- dynamics-of-family-law-and-how-frankfort-might-affect-the-future-of-its-practice-and-the-children-represented/, Last visited September 5, 2017; See also, Deborah Yetter, “Kentucky Can’t Ignore social services “Time Bomb”, experts tell reform panel” in Journal Sentinel (May 23, 2017), http://www.jsonline.com/story/news/politics/2017/05/23/experts-testify-ky-adoption-and-foster-care-work- group-holds-first-meeting/335179001/ Last visited September 5, 2017; See also, Judge Stephen Teske, “No Easy Answers When it Comes to Truant Youth,” in Juvenile Justice Information Exchange (April 9, 2012) http://jjie.org/2012/04/09/80459/80459/ Last visited September 5, 2017.

3. Rebecca Ballard DiLoreto, Tara Grieshop-Goodwin, Elizabeth Young, “Ending the Use of Incarceration for Status Offenses in Kentucky” (Blue-print for Kentucky’s Children, May 2012); Legislative Research Commis-sion, Report on the 2013 Task Force on the Unified Juvenile Code, (2013 Senate Concurrent Resolution 35), Research Memorandum No. 514(December 2013); http://www.juvjustice.org/sites/default/files/resource- files/State%20VCO%20usage%202.18.15.pdf; https://www.ojjdp.gov/compliance/FY2013-FY%202014VCO- state.pdf

4. Michael Mullins, Public Safety and Offender Accountability Act (HB 463): Justice Reinvestment Summary, http://www.ncsl.org/documents/nalfo/Jus-ticeReinvestmentMikeMullins.pdf, Last Visited September 6, 2017.

5. Roper v. Simmons, 543 U.S. 551 (2005).6. Id.7. Roper v. Simmons, supra; Graham v. Florida, 560 U.S. 48 (2010); Miller

v. Alabama, 567 U.S. 460 (2012); J.D.B. v. North Carolina, 564 U.S. 261 (2011); Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

8. Roper v. Simmons, supra, n 5.9. Juvenile Justice and Delinquency Prevention ( JJDP) Act of 1975 (Pub. L.

No. 93–415, 88 Stat. 1109) codified at 42 USC §§ 5601 et seq.10. Id.11. The JJDPA sets forth federal standards to ensure a minimum level of safety

and equitable treatment for youth who come into contact with the juvenile justice system. To be eligible for the funds provided under the JJDPA, each state must comply with four core requirements/protections: 1.Dein-stitutionalization of Status Offenders (DSO); 2. Adult Jail and Lock-Up Removal ( Jail Removal); 3. Sight and Sound Separation; and 4. Dispropor-tionate Minority Contact (DMC). http://www.act4jj.org/our-work/mem-ber-engagement, Last visited September 1, 2017.

12. 42 USC §§ 5603 (16) – Definitions the term “valid court order” means a court order given by a juvenile court judge to a juvenile— (A) who was brought before the court and made subject to such order; and (B) who received, before the issuance of such order, the full due process rights guar-anteed to such juvenile by the Constitution of the United States;

13. How to Calculate Average Daily Attendance accessed at https://edu-cation.ky.gov/federal/SCN/Documents/FY2013%20How%20to%20Calculate%20ADA.pdf Last visited September 6, 2017; https://education.ky.gov/districts/enrol/Pages/Superintendent%27s-Annual-Attendance- Re-port-(SAAR).aspx (discussion of Average Daily Attendance) Last visited September 6, 2017.

14. https://courts.ky.gov/courts/familycourt/Pages/default.aspx (discussion of passage of 2004 Constitutional Amendment.) Last visited September 6, 2017; Kentucky Constitution, Section 112 (passed 2002).

15. DiLoreto, Goodwin-Grieshop, Young, “Ending the Use of Incarceration for Status Offenses in Kentucky” supra n.3.

16. Following a Civil Rights for Institutionalized Person’s memorandum of agreement with the Justice Cabinet, the Department of Juvenile Justice built state of the art, regional detention centers across the Commonwealth. United States v. Commonwealth of Kentucky (W. D. Ky.) (consent decree covering all 13 juvenile treatment facilities ordered on Nov. 13, 1995). See https://www.ojjdp.gov/pubs/walls/sect-01.html (for discussion of the CRIPA Consent Decree).

17. http://www.lrc.ky.gov/record/14RS/SB200.htm; Legislative Research Commission, Report on the 2013 Task Force on the Unified Juvenile Code, at supra n.3.

18. H.B. 61, 2012 Reg. Sess. (Ky. 2012). Accessed at http://www.lrc.ky.gov/record/12rs/HB61.htm, Last reviewed September 7, 2017.

19. Legislative Research Commission, Report on the 2013 Task Force on the Unified Juvenile Code, supra n. 3.

20. Id. Also see https://justice.ky.gov/Documents/JJOC/JJOCMin-utes11292016.pdf (discussion of report by Pamela Lachman of The Crime and Justice Institute.) Last reviewed September 7, 2017.

21. http://dbhdid.ky.gov/dbh/documents/siac/OverviewSIAC.pdf22. https://dpa.ky.gov/who_we_are/ASW/Pages/default.aspx23. September 19 2016 Report of the Kentucky Juvenile Justice Oversight

Council https://justice.ky.gov/Documents/JJOC/JJOCMinutes09192016.pdf Last Reviewed September 7, 2017. ( Pastor Ed Palmer, DJJ administra-tor Kristi Stutler and DCBS administrator Jackie Stamps recommending end to automatic transfer of children to adult court); Roper v Simmons, supra n. 5.



Currently, 1 IN 6 ADULTS and 1 IN 5 CHILDREN in the COMMONWEALTH OF KENTUCKY STRUGGLE WITH FOOD INSECURITY. Food insecurity means having to choose between paying for medicine and paying for food, a choice faced by 69

percent of Kentucky food bank clients. Food insecurity means having to choose between paying for transportation and paying for food, a choice faced by 63 percent of Kentucky food bank clients.

The struggle for the food banks in the Kentucky Association of Food Banks to meet the food needs of their clients is real, as 39 percent of Kentucky food banks report not having enough food to meet their needs.

Feeding the hungry in Kentucky is a solvable problem, and I call Kentucky lawyers to action to be a big part of the solution.

The KBA Young Lawyers Division is excited and proud to partner with the Kentucky Asso-ciation of Food Banks and Attorney General Beshear in Kentucky’s second annual hunger relief effort driven by the Commonwealth’s legal community – The Legal Food Frenzy.Last year, the first annual Legal Food Frenzy was a huge success, raising the equivalent of approximately 550,000 pounds of food for the Kentucky Association of Food Banks. This year, we are asking the legal community to come together and do even more to fight hunger, setting a goal of the equivalent of 800,000 pounds of food (or $100,000.00) for the Legal Food Frenzy campaign.

On Jan. 17, 2018, Attorney General Beshear will host the statewide kick-off event for the 2018 Legal Food Frenzy at the State Capitol Rotunda at 1:00 pm ET. All in the legal community are invited to help us kick-off the 2018 campaign on January 17.

The Legal Food Frenzy campaign will run from March 15, 2018 through April 2, 2018. During the Legal Food Frenzy, law firms, legal offices, government offices, and law schools from across the Commonwealth will engage in a friendly competition to raise food and money for Kentucky’s food banks. We encourage every KBA member to take part in this two week competition. Our goal of raising the equivalent of 800,000 pounds of food may sound like a lofty one, but hitting the goal will provide merely one pound of food per person who relies on the Kentucky Association of Food Banks.

Law firms and legal organizations can sign up online for the Legal Food Frenzy between now and March 14, 2018 at WWW.KYFOODFRENZY.COM. Upon signing up, each firm and organization will designate a Legal Leader to promote the competition within their organization and coordinate food donation pickup with their local food bank.

During the Legal Food Frenzy campaign, food donations will be accepted, although finan-cial donations are encouraged due to the Kentucky Association of Food Bank’s buying power

KENTUCKY LAWYERS’ FUNDRAISING CAMPAIGN TO FIGHT HUNGER

AWARDS WILL BE PRESENTED TO THE WINNERS IN THE

FOLLOWING CATEGORIES:

Solo Law Firms (1 to 3 attorneys) awarded based on the most

pounds per lawyer.

Small Law Firms (4 to 10 attorneys)awarded based on the most

pounds per lawyer.

Mid-sized Law Firms (11 to 49 attorneys)awarded based on the most

pounds per lawyer.

Large Law Firms (50+ attorneys)awarded based on the most

pounds per lawyer.

Corporate Legal Departments awarded based on total pounds collected.

Government Entitiesawarded based on total pounds collected.

Law Schoolsawarded based on total pounds collected.

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BY: ERIC M. WEIHE, YOUNG LAWYERS DIVISION CHAIR

19BENCH & BAR |

to acquire healthy, nutritional food at deeply discounted rates. Financial donations can be made online at the Legal Food Frenzy website, or can be made by cash or check. Each dollar contributed will count as four pounds of food towards the organization’s total in the competition. There will also be bonus pounds awarded for a number of things, including volunteering at a local food bank during the Legal Food Frenzy.

The Kentucky Association of Food Banks is comprised of seven regional food banks that distribute food in all 120 counties in Kentucky through a network of 800 local charitable feeding organizations such as soup kitchens, food banks, and shelters. So, all donations will go toward supporting your local area’s food bank.

The winning law firms and legal organizations will receive recognition at the 2018 KBA Annual Convention during a special awards luncheon, as well as acknowledgment in the Bench & Bar. The law firm or legal organization that raises the most overall total pounds will be awarded the prestigious Attorney General’s Cup! Most importantly, the support of attorneys across the Commonwealth will help bring Kentucky one step closer to ensuring that all of its citizens have access to adequate food.

For more information and to sign up for the Legal Food Frenzy, visit www.kyfoodfrenzy.com. Please join the YLD for the kick-off event at the Capital on Jan. 17, 2018 and #FeedTheFrenzy!

HANK JONESInsurance &Personal Injury Mediation

PAT MOLONEYHealthcare, Nursing Home &Medical MalpracticeMediation

STEVE BARKEREmployment &Business DisputesMediation

The Sturgill Turner Mediation Center is equipped with experienced, AOC certified mediators and superior conference facilities, allowing us to provide prompt, quality mediation services. Located in Lexington and available for mediations statewide. Learn more about mediators Hank Jones, Pat Moloney and Steve Barker at STURGILLTURNERMEDIATIONCENTER.COM. M E D I A T I O N C E N T E R

When you need to settle your case, don’t settle on your mediator♦

LEGAL FOOD FRENZY SPONSORS

LEGAL FOOD FRENZY COMMITTEE CHAIRS:

Elizabeth CombsYLD Legal Food Frenzy Committee

Co-Chair

Teresa McMahan YLD Legal Food Frenzy Committee

Co-Chair

Susan Rieber Office of Attorney General Beshear

Tamara Sandberg

Kentucky Association of Food Banks Executive Director

Eric WeiheYLD Chair


State Senate. Senator Neal was elected in 1989 and has served in that capacity since, the longest service of any African American member of the Kentucky General Assembly.

Senator Neal is an inductee of the Kentucky Civil Rights Hall of Fame (2001) and the Gallery of Great Black Kentuckians (2012). In the Kentucky Senate, he has sponsored legislation requiring school districts to focus on equal educational opportunities. He is the founder of the Kentucky Education Reform African Ameri-can and All Children’s Caucus. He sponsored the law that created the KCHIP Program, which provides health care coverage for thousands more of Kentucky’s children and expanded Medicaid coverage for children. He sponsored laws that required the identi-fication of the special needs of the minority elderly population and created the African American Heritage Commission. He spon-sored legislation amending the Kentucky Constitution to remove segregation by race, prohibit racial profiling by law enforcement and prohibit the execution of a person when evidence shows racial bias in prosecution.

He has served in leadership roles with the National Bar Associ-ation and as president of the Kentucky Chapter of the National Bar Association. He serves on the national board of the National Black Caucus of State Legislators. He is a member of the Kentucky Bar Association and is a Louisville and Kentucky Bar Association Fellow.

Senator Neal served as assistant director of Public Health and Safety for the City of Louisville, was a hearing officer for the State Workers’ Compensation Board and served as a juvenile probation officer. He served five terms as chair of the Louisville-Jefferson County Metropolitan Sewer District. He served as Senate Dem-ocratic Caucus Chairman from 2015-2017, becoming the first African American elected to a leadership position in the history of the Commonwealth of Kentucky. He serves on the national board of the National Black Caucus of State Legislators.

DISTINGUISHED ALUMNIVANESSA CANTLEY is a partner with Bahe Cook Cantley Nefzger PLC and a 2004 grad-uate of Brandeis Law. In addition to Cantley’s successes at trial, she has negotiated millions of dollars in settlements for clients. She also has valuable legal experience from the defense perspective.

Cantley was recently certified as a life member of both the Million Dollar Advocates Forum and the Multi-Million Dollar Advocates Forum of the Top Trial Lawyers of America. She is an adjunct professor of Law at the Brandeis School of Law, where she teaches civil litigation skills to senior law students.

BRANDEIS SCHOOL OF LAW HONORS NOTABLE ALUMNI

State senator. Corporate attorney. Higher education administrator.

Graduates of the Louis D. Brandeis School of Law at the Univer-sity of Louisville hold these titles and more.

At our Law Alumni Council Awards October 12, we recognized 12 of the many impressive people who make up the Brandeis Law community.

Below, we will share a bit about our honorees. But first, we also want to celebrate MARSHALL MATZ, a member of the Class of 1971 and UofL’s 2017 Law Alumni Fellow. Matz is a principal with OFW Law in Washington, D.C., and specializes in food, nutrition and agriculture.

He has devoted his career to representing clients that are increasing food production and improving human nutrition in the United States and around the world. He serves on the Board of Direc-tors of the Food Research and Action Center (FRAC), the World Food Program—USA (which he co-founded), the Congressional Hunger Center and the Lower Brule Sioux Tribe Farm Corpora-tion. Matz also served as chairman of the Agriculture Committee of the Obama for America presidential campaign.

After working with South Dakota Legal Services helping to pro-vide representation to Native Americans, Matz spent seven years on Capitol Hill (1973-1980) as counsel to the Senate Select Commit-tee on Nutrition (Senator McGovern, Chairman) and Committee on Agriculture, Nutrition, and Forestry (Senator Talmadge, Chair-man). He was counsel to the George McGovern-Bob Dole team in crafting their historic series of nutrition programs.

Matz was honored, along with alumni fellows from all of UofL’s schools and colleges, at an event October 13.

LAWRENCE GRAUMAN AWARDThe highest award bestowed by the Law Alumni Council is the Lawrence Grauman Award, named after the judge of the Jefferson Circuit Court Commons Pleas Branch, Fifth Division, from 1950-64. The award honors a lifetime record of leadership and service to the profession and community.

This year’s recipient is SENATOR GERALD NEAL, a member of the Class of 1972. Senator Neal was elected to represent District 33 (Louisville), the second African American to serve, and first

African American man elected to the Kentucky

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21BENCH & BAR |

JOHN HEYBURN earned his Juris Doctor from the Brandeis School of Law in 1974. For more than 20 years, he was in private practice and specialized in real estate law. In 1988, he was a founding member of Heyburn & Jones PLLC,

where he specialized in real estate law.

In 2006, he began as an adjunct professor at Bellarmine University, teaching school law in the Graduate School of Education and principal Training Program. He remains at Bellarmine. From 2006-2010, he also was an adjunct professor at Jefferson Community College, where he taught business law.

DONALD J. KELLY is partner in charge of Wyatt Tarrant & Comb LLP’s Louisville office and a 1988 graduate of Brandeis Law. He is a member of the firm’s litigation & dispute res-olution service team and executive committee.

Kelly concentrates his practice in the areas of toxic tort and related environmental litigation, products liability and commercial disputes. He has a strong commitment to community and serves as the director of GLI Inc., Saint Xavier High School, New Hope Foster Homes and the Community Catholic Center.

AMANDA MAIN is an assistant vice presi-dent at Brown-Forman Corporation, where she is responsible for privacy law matters; legal review of advertising, marketing, digital

activations, public relations materials and pro-motional concepts; and trade practice compliance

for the corporation’s brands in North America.

She was previously a senior associate at Frost Brown Todd. Main is the 2017 president of the Louisville Bar Association. Main is a 2001 graduate of the Brandeis School of Law, where she was editor in chief of the law review.

W. SCOTT MILLER JR. received his J.D. from the University of Louisville Law School in 1951 and created quite the resume since, including a 64-year law practice career with Miller and Miller.

Miller served as chairman of the University of Louisville’s Board of Trustees in the early 1980s and was a board member from 1974-82. He has served on the Board of Governors at Louisville General Hospital, as part of the National Conference on Uniform State Laws and as part of the Kentucky State Senate (1958-73), includ-ing a seat as vice chairman of the Judiciary Committee.

TYLER THOMPSON is the senior partner at the law firm Dolt, Thompson, Shepherd & Conway PSC in Louisville. He graduated from the Brandeis School of Law in 1986.

Thompson has represented clients in medical negligence and prod-ucts liability cases throughout the United States. He has achieved a number of eight-figure settlements on behalf of injured clients and has obtained a number of multi-million dollar verdicts at trial, including two verdicts exceeding $10 million dollars and two ver-dicts exceeding $20 million dollars. In 2008, Thompson became an invited member of the Inner Circle of Advocates, a trial lawyer organization limited to 100 lawyers in the United States.

RECENT ALUMNA AWARDREBECCA WEIS is a 2009 graduate of the Uni-versity of Louisville Law School and a partner at Stites & Harbison, PLLC. Her practice is primarily devoted to employment litigation and counseling and business litigation. She has significant experience defending employers against discrimination, harassment, retaliation, whistleblower, wage and hour and other labor and employment-related claims.

Weis also frequently litigates cases involving business torts, ADA public accommodation requirements and the enforceability of non-competition, non-solicitation, confidentiality and arbitra-tion agreements. She regularly advises business owners, in-house counsel, human resources personnel and managers about avoiding unnecessary legal costs and disputes.

GAIL ROBINSON AWARDJUDGE JAMES M. “JIM” SHAKE graduated from

the University of Louisville Brandeis School of Law in 1980.

Judge Shake began practice first as a trial attorney with the Jefferson District Public

Defender, then as a prosecutor with the Jefferson County Attorney’s office. In his later private practice,

he represented clients in criminal cases involving misdemeanor and felony charges and in civil cases involving domestic relations, contract disputes, personal injury, probate and business matters. Judge Shake served in Jefferson Circuit Court, Division Two, from March 1993 to March 2017.

Since retirement from the bench in March 2017, Judge Shake serves as a mediator and arbitrator with Retired Judges Mediation and Arbitration Services and provides services as a case evaluator and trial consultant.

DEAN’S SERVICE AWARDThe Dean’s Service Award is presented to someone who has served the law school in a significant way.

JAY LAMBERT is director of Training and Performance Evaluation at the Louisville-Jef-ferson County Public Defender Corporation.

Lambert is a 1983 graduate of the University of Kentucky College of Law. Lambert has tried more


Sweeny then practiced as an employment litigator at Manatt, Phelps & Phillips, LLP, before returning to academia. In 2009, she completed her Ph.D. in law at Queen Mary, University of London. Sweeny’s current scholarly interests include comparative constitu-tional law, freedom of expression, law and gender and legal history.

OUTSTANDING STAFF MEMBERJAMES BECKER is the Brandeis School of Law’s assistant dean for Information Tech-nology and a 1997 graduate of the Brandeis School of Law. Becker has been significantly involved in the renovation of the law school’s classrooms and courtrooms, each of which is equipped with state-of-the-art technologies. He has also served as a member or chair of numerous committees.

He is a licensed attorney in Kentucky and a member of the Ameri-can, Kentucky and Louisville Bar associations. Becker has taught as an adjunct professor in the political science department’s Paralegal Studies Program and has made continuing legal education presen-tations on topics such as trial technology, Internet legal research and ethical and intellectual property considerations raised by technology in the practice of law.

than 80 jury trials in Circuit Court, including many high-profile felony cases and a number of death penalty cases. He is admitted to practice in Kentucky state courts, the United States District Court for the Eastern and Western Districts of Kentucky and the Sixth Circuit.

He has served as an instructor in criminal procedure at the Brandeis School of Law and has taught various criminal law topics and trial techniques throughout Kentucky for the Department of Public Advocacy, the Louisville and Kentucky Bar Associations, the Ken-tucky Association of Criminal Defense Lawyers and the American Trial Lawyers Association.

OUTSTANDING FACULTY MEMBERPROFESSOR JOANNE SWEENY teaches law-yering skills and writing for practice at the Brandeis School of Law. Prior to coming to Louisville, she was a Westerfield Fellow at Loyola University New Orleans College of Law, where she taught legal research and writing as well as a seminar in comparative constitutional law. After graduating Order of the Coif from the University of Southern California Law School, she clerked for the Honorable Ferdinand F. Fernandez at the Ninth Circuit Court of Appeals.

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23BENCH & BAR |

CHASE MASTER OF LEGAL STUDIES DEGREE Brings Future into Focus

Annie Harrison and Stephen Saylor want to understand the law, but they do not want to practice law.

For them and others, the Master of Legal Studies (MLS) degree at Northern Kentucky University Chase College of Law is a way to learn about legal principles for endeavors in which legal knowl-edge is helpful, but a Juris Doctor is not necessary. The goal for Ms. Harrison is to move from her company’s finance department to its legal department and a job in risk management or contract analysis. For Mr. Saylor it is to enhance his volunteer activities.

Just as the Master of Legal Studies degree offers students the essentials for applying legal doctrines, these are the essentials for understanding the only MLS program in Kentucky:

• HOW IT WORKS: Students attend classes with Juris Doctor stu-dents and complete the same assignments. Students can obtain the degree in one year of full-time study or two or three years of part-time study.

• WHAT STUDENTS STUDY: They take required courses in legal analysis and problem solving and in basic legal research; they select what is essentially three or four classes from among semester

offerings in civil procedure, constitutional law, contracts, criminal law, property, torts, and legal writing; they complete degree require-ments with elective courses.

• HOW THEY TAILOR ELECTIVE STUDIES: Associate Dean for Academics Lawrence Rosenthal meets individually with students to help them select courses that complement their goals and are suitable for students not pursuing a Juris Doctor.

• WHY SOME STUDENTS THINK THE PROGRAM IS RIGHT FOR THEM: “I want to work in the legal field, but do not wish to be a practicing attorney,” Ms. Harrison says. “The MLS program allows me to gain the knowledge and skill set needed to work in some capacity in the field while spending less time in school than if I were a J.D. candidate.” Mr. Saylor is a retired Internal Revenue Service field auditor and manager who has long wanted to attend law school. “When I became aware of the MLS program I chose it, as opposed to the longer J.D. program, to use the education to help with my community-based volunteer jobs.”

• HOW THE PROGRAM RATES WITH STUDENTS: “The students have been very enthusiastic,” Associate Dean Rosenthal says. “Some of them know that the knowledge they gain can be very helpful

in their current or future jobs; others simply enjoy learning about various aspects of the law.”

• HOW THE PROGRAM HAS DEVEL-OPED: Chase launched the Master of Legal Studies program with three students in the 2015 fall semes-ter. Two years later, the fall 2017 enrollment of 13 is approaching the program’s capacity. Chase awarded its first Master of Legal Studies degree this past spring.

• WHERE TO LEARN MORE ABOUT THE PROGRAM AND TO APPLY: Details about the Chase College of Law Master of Legal Studies pro-gram are online at chaselaw.nku.edu, under the “prospective students” tab.

Law Professor John Bickers teaches a constitutional law class available to students in the Master of Legal Studies program at Chase College of Law.

COLUMNS


The University of Kentucky College of Law began a new chapter with a ceremonial groundbreaking in September on Mandrell Hall’s front lawn, across the street from the Law Building, now undergoing construction. UK President Eli Capilouto and

UK Law Dean David A. Brennen were joined by students, faculty, staff, donors and alumni in unveiling details of the $56 million building renovation and expansion project.

The college revealed the architectural plans, as well as launched its new building campaign, “Raising the Bar, Together.”

“This project goes beyond a building,” Brennen said. “This project is about coming together and investing in UK Law’s future, the success of its students, its impact on public under-standing of legal issues, and its engagement in law reform. It will certainly help us provide a 21st century legal education.”

The expansion and renovation of the College of Law is part of UK’s overall capital improvement plan. The project will significantly update and enhance a building originally constructed in 1965, providing students, staff and faculty with a new, state-of-the-art facility for learning, teaching and research. Plans call for an increase in educational space, as well as high-tech enhancements to classrooms and study spaces for law students.

“For more than 100 years, the University of Kentucky College of Law has been a leader in legal education – preparing countless legal practitioners and scholars, private and public sector leaders, and elected officials and policymakers who have shaped our legal, political, and civic landscape,” Capilouto said. “The dramatic renewal and expansion of the law building will provide for a new century of legal education, preparing new generations of graduates with the skills to shape our shared future. I want to thank our private partners and Kentucky’s elected officials for their support of our shared vision for the new College of Law.”

The architects for the building project are Kohn Pedersen Fox Associates of NYC and Sherman Carter Barnhart of Lexington. The construction manager for the project is Con-gleton-Hacker Company of Lexington. Construction on the law building began in mid-July. The timetable calls for completion of the project by fall 2019.

“I would like to thank those individuals and law firms who have made generous gifts towards the building initiative, helping us reach this important milestone,” said Brennen. “I look forward to our future as we continue raising the bar, together.”

UK Law ‘Raising the Bar’ with $56 MILLION BUILDING PROJECT

HIGHLIGHTS OF THE NEW LAW BUILDING INCLUDE:

• The footprint of the college will expand by 26 percent to 122,513 square feet.

• A new main entrance with a porch facing Memorial Hall, improving the gateway to the university.

• A modernized 185-seat moot courtroom designed for oral argument training, live appellate court proceedings, large lectures and conferences.

• A new small moot courtroom for litigation training that can also be used as a classroom.

• 11 new classrooms, including four 25-seat classrooms; four 80-seat classrooms; and three 50-seat classrooms.

• More than 20 collaborative study or breakout rooms.

• An outdoor gathering space which will serve as a gathering place for students, faculty and staff to engage on nice weather days.

• A new third floor with three classrooms con-vertible into one large multipurpose room, able to accommodate from 150 - 400 people. The space will also open onto a roof terrace offering spectacular views of Memorial Hall and campus.

To stay informed about the latest news or to watch building video updates, visit law.uky.edu/raisingthebar.

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A s important as freedom of expression is in our Republic, it is not often a legal

regime we use in our practices. Certainly the vast majority of our “family” work is the application of matching legal rules to what facts we can muster, legal rules that relate to contracts, liability, evidence and the growing array of statutory rule sets for governing our lives.

I suggest this will change with the growth of information systems everywhere in our lives. Whether this new information world is called “ubiquitous computing,” “the Internet of Things” or the “Smart City,” we are all deeply enmeshed in a dynamic system for the generation, storage and transmission of information.

First, this explosion in information systems means the people we represent are much more likely to be engaged in the publication of information that may raise the hackles of some. These may be keyed into “informa-tional torts,” that assortment of actions tied to injuries caused by information. It may include “data crimes” using information in violation of law. Or it could be simple conduct that by the nature of information systems crosses into other jurisdictions where someone takes offense.

Further, First Amendment protections can apply to computer code itself, a growing commodity in the economy, from apps to major systems. The Sixth Circuit earlier led the way by establishing First Amendment protections for computer code in Junger v. Daley, an opinion authored by Judge Martin. Now the implementation of that has become a part of small business advising.

And it is increasingly an issue for lawyers about the business of the law. The trends are towards more specialist practices with their marketing challenges. Free commer-cial speech in our changing legal market, for both lawyers and judges, will be an ongoing issue.

Addressing these in such an evolving area is the challenge. The intrepid search tool Google can help with contemporary dis-cussions, but there are systematic resources that can help.

“Comparative Perspectives on the Funda-mental Freedom of Expression,” edited by Andras Koltay of the Hungarian Academy of Sciences examines free-speech issues from a global perspective. The essays first examine these issues as to the press and press freedom. From there the writers dis-cuss challenges that arise with the new digital media technologies that can make anyone a press mogul. These then segue into issues relating to European Union regula-tion, the “information torts” of defamation and invasion of privacy and the challenges presented by a speech and blasphemy.

The global approach of “Comparative Per-spectives” reminds us of the adage that on the Internet the First Amendment is only a local ordinance. This helps with at least advising on potential liability for those seeking to use the Internet for commercial and political purposes.

“Comparative Perspectives On Freedom of Expression” (volume 2), edited by Russell Weaver and friends, offers granular analysis of particular situations we might face. For example, Prof. Weaver, of the Brandeis Law School, writes on the status of the “True Threat” Doctrine in determining whether online speech is a true criminal threat or simply free expression. The application of this will range from domestic to political practice. Other essays address the applica-tion of obscenity tests to online material, the use of Internet derived character evi-dence and the transnational impact of speech that may be legal in the United States but criminal or civilly defamatory in other countries. These are all useful guides should any of these situations arise, as they most assuredly will.

and the Family LawyerFreedom of Speech

BY: MICHAEL LOSAVIO

My contribution to Weaver’s book, to make full disclosure, was at the boundaries of speech issues globally, addressing the interplay between encryp-tion and protected, anonymous speech. Yet encryption has become a significant topic in the investigation of terrorist and criminal activities. One example is the Department of Justice’s efforts to force Apple develop decryption systems for iPhones used in the San Bernardino murders. How do you bal-ance the protected speech of those in need of protection with that of those who mean to do evil?

A key benefit of both books is demon-strating the global phenomena of the free exchange of information and how that exchange may be harshly limited by some countries. It is certainly a topic for advice for our clients. It is easy to forget that your informational conduct may have run afoul of one nation’s laws, only to be reminded of it at passport control as you are taken into custody. The evolution of “self-help doc-trines” for responding to perceived online misconduct may worsen the risks from information security (hacking) attacks.IT IS A NEW WORLD. AND THIS IS YET ANOTHER THING FOR WHICH WE MUST PREPARE.

ABOUT THE AUTHORMICHAEL LOSAVIO teaches in the Depart-ment of Justice Administration and the Department of Computer Engineering and Computer Science at the University of Louisville on issues of law, society and information assurance in the computer engineering and justice administration disciplines. His focus is on law and social sciences as they relate to computer engineer-ing, evidence and digital forensics. Courses include digital and computer crime, transnational cybercrime and legal issues with data mining and information assurance. He holds a J.D. and a B.S. in mathematics from Louisiana State University.

SHOP TALK


If you’re a lawyer, you’re a writer. And if you’re a writer, you have likely been taught certain rules of grammar and vocabulary use: that you should never end a sentence with a prop-osition or split an infinitive, that they and their should not be used as singular pronouns,

that literally does not mean figuratively. These examples were, and in some cases still are, longstanding rules. Some of them—like the preposition and split infinitive rules—have passed out of favor and are largely ignored by modern writers, even in formal contexts. Others, like the “their isn’t singular” rule, are still followed by many writers, especially in formal writing, but are routinely disregarded in spoken language. All are examples of how language changes. As legal writers, one of the many choices we have to make when writing a legal document is to what extent our written language will adapt to the changes that are inevitable in English, as in any language.

Examples of how language has changed range from changes in the meaning of individual words (decimate used to mean to destroy a 10th of something, and now it means to destroy almost all of something; merry used to mean short; used to used to mean something habitual in the present tense as well as in the past tense) to the emergence of new languages (Latin became French because people used language in new ways). 1

While changes tend to happen faster in spoken language, written language—even writing as formal as that used in legal briefs and memoranda—also changes. For example, what used to be called a demurrer is now more commonly called a motion to dismiss. Sentences like this,

The defendant … pleaded that…the said covenant was contrary to the laws against champerty and maintenance, and void; to this the plaintiff demurred, and his demurrer was sustained….2

now sound old fashioned, bordering on incomprehensible.3

Many common words and phrases that were once viewed as too new or informal or even controversial are also now acceptable in even the most formal writing. The title Ms. was first suggested as an alternative to Mrs. and Miss in 1901, but was then ignored for decades.4

When it reemerged in the mid-20th century, many people disparaged it.5 It wasn’t until 1986 that the New York Times adopted Ms. as a female title6, and now it’s commonplace to the point of being the default title for women.

Is the same future in store for using their as a singular pronoun? Many people, myself included, already use their as a singular pronoun when speaking. For example, I will say to my class, “Will the student who omitted their name from the assignment please see me after class?” The alternative, “Will the student who omitted his or her name from the assignment please see me after class,” sounds clunky to my ears. However, I never use their as a singular pronoun in writing, in part because I think it’s still incorrect for formal writing and in part because I don’t want my audience to think I’m ignorant of the rule. But with each passing year I am less annoyed when my students use their in place of his or her because in a way the students are right: the use of their is changing. Similarly, when I first noticed students using based off instead of based on a few years ago, I thought my students just needed a review session on prepositions. Perhaps in the short-term they do, but in the long-term, based-off may well be our future.

LANGUAGE CHANGES, BUT SHOULD LEGAL WRITING CHANGE WITH IT?

BY: DIANE B. KRAFT

EFFECTIVE LEGAL WRITING

27BENCH & BAR |

This does not mean, of course, that anything goes when it comes to writing, particularly formal writing. The writer John McWhorter offers some guidance on when to accept a change and when to resist it. For McWhorter, if a change doesn’t impede understanding or clarity, it shouldn’t be considered wrong7. That’s good advice, and especially important in legal writing, where lack of precision and clarity can lose a case for your client.

For example, while McWhorter finds nothing wrong with using lit-erally to mean figuratively8 when the meaning is unambiguous (the person who says “I was literally dead on my feet” is almost certainly alive), the word could easily introduce ambiguity where none was

intended. “After the incident my client literally went insane” could mean one thing to the writer (my client was extremely upset) and another to the reader (the client suffered a mental breakdown).

I would add to McWhorter’s advice about ambiguity the idea of “audience.” Legal writers should consider whether they’re writ-ing for an audience that is older and more traditional than the 20-somethings who are quick to adopt changes in language. Even if a change in language introduces no ambiguity, when the change is so new that the reader would likely not only be distracted by it but might even think the writer ignorant of correct usage, a writer is well advised to limit changes in language to informal writing. If

using their instead of his or her, or literally to mean figuratively, would leave a negative impression on the judge who is reading your brief, it’s probably the wrong choice.

I still expect my students to follow traditional rules of grammar and vocabulary in the assignments they write for my class because I want them to be prepared for the expectations they will likely face as writers of formal legal documents. That said, when the time comes to accept their as a singular pronoun even in formal writing, I will do so. Language changes, and legal writing does, too.

ABOUT THE AUTHORDIANE B. KRAFT is the Wyatt, Tarrant & Combs Associate Pro-fessor of Law at the University of Kentucky College of Law. She is an assistant professor of legal research and writing at the University of Kentucky College of Law.

I

• Patents• Litigation

• Privacy & Data Security• Publishing & Media

• Advertising• Trademarks• Copyrights• Licensing • Domain Names

For more than 140 years, Wood Herron & Evans has been a regional and national leader in providing innovative solutions for clients seeking to protect what is theirs. Our clients are leaders in science and industry world-wide. Our attorneys possess the requisite skills to protect all facets of the intellectual property assets of our clients, including patents, trademarks, trade secrets, copyrights, advertising, privacy, and related litigation matters.

2700 Carew Tower | 441 V ine S t r ee t | C inc inna t i , Oh io 45202Phone : 513 -241 -2324 | Fax : 513 -241 -6234

F rom Le f t : Ka th r yn E . Smi th ( Pa r tne r ) , Dav id S . S ta l l a rd (Of Counse l ) ,John P . Dav i s ( Pa r tne r ) , Gregory J . Lunn ( Pa r tne r ) , Ku r t A . Summe (Pa r tne r )

Lega l se r v i ce s may be pe r fo rmed by o the r s .

T H I S I S A N A D V E R T I S E M E N T . K E N T U C K Y L A W D O E S N O T C E R T I F YS P E C I A L I Z A T I O N O F L E G A L S E R V I C E S .

ENDNOTES1. John McWhorter, Words on the Move: Why English Won’t—

and Can’t—Sit Still (Like, Literally), 71, 100-01, 111 (2016).

2. Brown v. Beauchamp, 21 Ky. 413, 414 (1827).3. An example of an archaism that has managed to survive

is Comes now as the opening of a complaint, much to the chagrin of plain English advocates like Joseph Kimble. See, e.g., Joseph Kimble, Lifting the Fog of Legalese: Essays on Plain English 4, 6 (2006).

4. Ben Zimmer, Ms., N.Y. Times, Oct 23, 2009.5. I remember members of my own family rolling their eyes

at Ms. used as a title for women, never expecting it would become the norm.

6. Zimmer, supra note 4.7. Morning Edition (NPR radio broadcast Sept. 15, 2016).8. According to McWhorter, this is an example of a contro-

nym, a word with contradictory meanings. Examples in English abound: seed can mean to remove seeds (as from a watermelon) or to plant seeds; dusting can mean the removal of dust or the addition of something like snow or powdered sugar; fast can mean quickly (as in to move fast) or to be still (as in sit fast). McWhorter, supra note 1, at 22-28.


to pass on to clients. This will give you more time for direct client service, which keeps income flowing.

KEEP INCOME FLOWINGThe income side is the more difficult part of the equation. Lawyers obviously have to work sufficient hours that are both billable and collectible in order to cover expenses and turn a profit. Your time is your income stream, so you not only have to send out your bills for work performed—you have to collect those bills, and col-lect them in a timely manner.

When I was a young lawyer I had the good fortune to work with a master litigator and rainmaker, the incomparable Charles “Charley” Cassis. One of Charley’s favorite pieces

of wisdom was that the practice of law is both a profession AND a business. He often warned that too many lawyers didn’t take the time to understand the business side of the practice, to their det-riment. When I worked with Charley I didn’t have to understand the business side of the practice well. I was in a large firm with an established infrastructure to take care of business, so to speak. Now? I’m in a small firm with 13 lawyers, and I have to understand how the business side of our practice runs.

I’m not alone: approximately 75 percent of Kentucky attorneys in private practice are solo practitioners or in firms of 10 law-yers or less. Offices of this scale are unlikely to have dedicated office management staff or an in-office accounting department. The lawyer is required to bear the burden of managing both the professional and the business sides of the practice. This is hard. Attorneys have notorious time management issues. No matter how well you manage your time, there are not enough hours in the day to devote to the business side and keep up with client demands. Unfortunately, the business side is some-thing you can’t ignore, or you won’t have a functioning practice. You have to be intentional about addressing the business side, and that involves addressing two basic factors: money going out of your accounts (expenses), and money coming in (income). You have to keep both sides in balance in order to keep the lights on and the doors open so you can keep meeting your clients’ professional needs.

MANAGE EXPENSESExpenses are often the easier side of the equation to manage. Make a budget, including staff-related expenses, facility-related expenses (rent, utilities, taxes), and practice related expenses (phone, inter-net, research subscriptions). Figure out where you can minimize without risk, but be realistic. Busi-nesses’ biggest expense is normally staff salaries and benefits, and while it’s tempting to manage expenses by squeezing salary and benefits, that approach can be counterproductive. Staff turnover due to uncompetitive salary and benefits packages, or general dissatisfaction, drives up expenses. It’s better to offer competitive packages to staff and find other ways to control expenses, such as rent and vendor contracts. A good, trusted staff is especially important because staff can help you manage and limit your expenses and track costs

The Business Side of the Practice:The Unspoken Challenge

BY: AMY D. CUBBAGE

BUSINESS

FUTURE OF LAW PRACTICE

29BENCH & BAR |

ABOUT THE AUTHOR

AMY D. CUBBAGE is a member of the Lou-isville firm Ackerson & Yann and practices litigation in the areas of complex business and commercial litigation. She is a frequent speaker on law and technology issues as well as attorney ethics issues. Cubbage is a 4th Supreme Court District Representative on the KBA Board of Governors where she sits on various Board committees and task forces, including the Rules, Budget, Audit, and Diversity Committees, the Task Forces on Judicial Evaluation and on Law Practice, and the Commission on the Future of Law Practice in Kentucky.

Without a steady stream of income you won’t be able to keep your office open.

It’s hard to discuss money with clients, but it’s easier if you have the conversation on the front end. Consider entering into a written fee agreement, even if the Rules of Professional Responsibility don’t require one, spelling out the terms of the engagement, including what will happen if bills go unpaid. Written fee agreements won’t stop all disputes, but many fee disputes can be eliminated if expectations are set at the outset of an engagement.

If you are not already doing so, automate. Invest in time and billing software, and use it to automate processes and track accounts. Some software packages include a case management component, which is a plus. Popular programs include AbacusLaw, Amicus Attorney, Clio, My Case, PC Law, and Rocket Matter.

Finally, consider how you will address client collections. Put systems in place to collect outstanding bills, and make sure all collections comply with all laws applicable to debt collections. Outsource collections to a third party collection agency if necessary. Think about whether you can or should withdraw from a representation before outstanding

bills are too large. Also consider your policy on whether you will bring legal action against a client to collect a debt. While tempting, debt collection suits can open

you to counterclaims, and can impact your malpractice coverage. It makes more sense to address outstanding accounts before they get too large

and legal action is a financial necessity.

NEED HELP? ASK!Still at a loss about how to keep the business side of your

practice running? That’s nothing to be ashamed of. If you are like me, you went to law school without experience

in running a small business, and you certainly didn’t get any instruction in how to run a business during law school. For a lot of us, the concepts of loyalty and obligation to clients are intuitive, but how to ask your client to pay an overdue bill is not. If you are having trouble balancing the professional and business side of your practice, don’t suffer in silence. There are resources available. It may be as simple as talking to an established attorney in your community about how he or she han-dles staff salaries or client collections.

The business side of the practice has to be addressed by the private practitioner. Few pri-vate practitioners in Kentucky have the luxury of large staff to manage the business side for us. With a little planning and regular attention,

you can keep the business running and spend the majority of your time tending to client service,

which is what attracted most of us to the practice of law in the first place.

If you are a YOUNG LAWYER in PRACTICE FOR FIVE YEARS OR LESS, sign up for the KBA’s MENTORING PROGRAMS at

kybar.org/page/gpsabout

For other RESOURCES, visit the ABA’S LAW PRACTICE DIVISION

website at americanbar.org/groups/

law_practice.html

BUSINESS


RULES OF THE SUPREME COURT (SCR)

I. SCR 2.008 Confidentiality

Section (c) and new section (d) of SCR 2.008 shall read:

The Office of Bar Admissions shall not disclose to anyone other than an applicant any information with respect to the character and fitness or the examination results of any applicant except:

(a) upon written authority of such applicant and upon payment of any fees required by the Board for copies of such reports;

(b) in response to a valid subpoena from a Court of competent jurisdiction;

(c) to the Director, Kentucky Bar Association;

(d) upon request by a disciplinary enforcement agency or a Character and Fitness Committee of any jurisdic-tion, relating to an investigation of the applicant.

II. SCR 2.014 Legal Education

Subsection (a) to section (2) and section (4) of SCR 2.014 shall read:

(2) An attorney who received a legal education in the

United States but is not eligible for admission by virtue of not having attended a law school approved by the Ameri-can Bar Association or the Association of American Law Schools may nevertheless be considered for admission by examination provided the attorney satisfies the following requirements:

(a) The attorney holds a J.D. Degree, which is not based on study by correspondence, study online, or distance learn-ing from a law school accredited in the jurisdiction where it exists and which requires the equivalent of a three-year course of study that is the substantial equivalent of the legal

education provided by approved law schools located in Ken-tucky. The applicant shall bear the cost of the evaluation of his/her legal education, as determined by the Board, and the application shall not be processed until the applicant’s legal education is approved by the Board of Bar Examiners; and

(4) For purposes of (2)(b) and (3)(c), the active engage-

ment in the teaching of the law, full time at an American Bar Association accredited law school, shall be considered active engagement in the practice of law.

III. SCR 2.022 Application for admission by examination (Effective February 2, 2018)

Subsections (a) and (b) to section (1) of SCR 2.022 shall read:

(1) Every person who intends to apply for admission to the Kentucky Bar by examination must electronically submit a complete, verified Application for Admission by Examina-tion form and pay the required fee to the Kentucky Office of Bar Admissions. An application must be complete at the time of its filing, including a properly executed Authoriza-tion & Release form; and must include the following fee:

(a) Applicants not previously admitted to practice law-$875.00 (cashier’s or certified check or money order)

(b) Attorney applicants admitted in another jurisdic-tion-$1,200.00 (cashier’s or certified check or money order)

IV. SCR 2.023 Late filing of application for admission by examination (Effective February 2, 2018)

Sections (1) and (2) of SCR 2.023 shall read:

(1) An applicant who has failed to timely file an Appli-cation for Admission by Examination under SCR 2.022 may file a late application for Admission by Examination form from October 2 to November 10, prior to the February Bar Examination and from February 2, to March 10 for the July Bar examination, accompanied by a late fee of $250.00

IN RE:ORDER AMENDING

RULES OF THE SUPREME COURT (SCR)

2017-18

The following rules’ amendments shall become effective January 1, 2018, except for SCR 2.022, SCR 2.023 and SCR 2.024 which shall become effective February 2, 2018 and SCR 2.080 which shall become effective for bar examinations administered after January 1, 2019.

SUPREME COURT RULES

31BENCH & BAR |

along with the application fee (cashier’s or certified check or money order).

(2) An applicant who has failed to file an Application for Admission by Examination form by the late deadlines prescribed in paragraph (1) of this rule, may file under the extended late deadlines of November 11 to December 10 for the February Bar examination and March 11 to May 10 for the July Bar examination accompanied by an extended late fee of $500.00 along with the application fee.

V. SCR 2.024 Re-application for admission by examination (Effective February 2, 2018)

SCR 2.024 shall read:

An applicant who withdraws from or fails the bar exam-ination shall be permitted to re-apply for the next scheduled bar examination on a form approved by the Board along with a fee of $150.00. The $175.00 examination fee is also required of applicants who failed the bar examination. The re-application form must be filed by November 10 prior to the February examination and May 10 prior to the July examination.

VI. SCR 2.080 Bar Examinations (Effective for bar examinations administered after January 1, 2019)

Section (4) of SCR 2.080 shall read:

(4) An applicant must pass both the essay and Mul-tistate (MBE) portions of the examination in one sitting. A general average of 75% or higher on the essay portion of the examinations shall be deemed a passing score on the essay portion of the examination. A scaled score of 135 or higher on the Multi-state portion of the examination shall be deemed a passing score on the Multistate portion of the examination. After failing to pass five (5) Kentucky Bar Examinations, an applicant shall not be permitted to sit for the Kentucky Bar Examination. An applicant who has taken the Multistate (MBE) examination in another jurisdiction within three years of the date of the Kentucky examination may transfer a scaled score of 135 or higher and need only sit for the essay portion of the examination in situations where the applicant successfully passed the entirety of the transferring jurisdiction’s examination and has not previously failed the Kentucky examination.

VII. SCR 2.110 Admission without examination


(1) Any person who has been admitted to the highest Court of the District of Columbia or some sister state and who has been engaged in the active practice of law, in a

state or jurisdiction which has reciprocity or comity with Kentucky, for five of the seven years next preceding the filing of an application may be admitted to the bar of this state without examination provided the applicant meets all requirements for admission to the bar under these Rules. Active engagement in the teaching of the law, full time at an American Bar Association accredited law school, shall be considered active engagement in the practice of law.

VIII. SCR 2.300 Reinstatement of persons to practice law scope and purpose of reinstatement guidelines

The first paragraph of SCR 2.300 shall read:

Scope and Purpose of Reinstatement Guidelines.

The guidelines set forth in SCR 2.300 apply to appli-cations for reinstatement filed by any person who has been suspended from the practice of law, who seeks reinstatement under the provisions of SCR 3.510, and whose application is referred by the Kentucky Bar Association to the Office of Bar Admissions, Character and Fitness Committee, or to petitions for restoration filed by any person who has been transferred to disability inactive status pursuant to SCR 3.030.

IX. SCR 3.023 Disclosure of Professional Liability Insurance

New rule SCR 3.023 shall read:

1) On or before September 1 of each year, every member of the Association shall certify to the Executive Director in such form and manner as the Board may designate:

a) Whether the member is engaged in the private prac-tice of law;

b) If engaged in the private practice of law, whether the member is currently covered by a policy of professional liability insurance with minimum limits of $100,000.00 per claim and $300,000.00 aggregate for all claims during the policy term; and

c) Whether the member is exempt from the disclosure provisions of this Rule.

2) Each member who has previously reported being covered by professional liability insurance as set forth in paragraph 1(b) of this Rule shall notify the Executive Direc-tor in writing in such form and manner as the Board may designate within 30 days if the insurance policy providing coverage lapses, terminates, or is no longer in effect for any reason.


3) The information disclosed pursuant to this Rule will be made available to the public by such means as the Board may designate.

4) The following members are exempt from the disclo-sure provisions of this Rule:

a) Members who are employed by a government entity and who do not represent clients outside of that capacity; and

b) Members who are employed by an organization client and who do not represent clients outside of that capacity.

X. SCR 3.030 Membership, practice by nonmembers and classes of membership

Subsections (a) and (b) to section (5) of SCR 3.030 shall read:

(5)(a) A class of membership is established to be known as “Disabled Inactive Member.” An attorney admitted to practice in this state who has been, because of a mental or physical condition, judicially declared to be a person under a legal disability, or for whom probable cause exists to believe that the attorney has a mental or physical condition that substantially impairs his or her ability to practice law shall provide to the Director of the Kentucky Bar Association a detailed written report from a licensed qualified health care provider who has examined the attorney setting out the findings of the health care provider, including the results of all tests made, diagnoses and conclusions. The Director shall present the matter to the Board who may enter an order transferring the attorney to Disability Inactive Status. An attorney classified under this subsection is not required to pay dues or obtain the annual CLE requirement pursuant to SCR 3.645. This status shall be reflected on the attorney’s membership record. No attorney classified under this status may engage in the practice of law in this state. Any disci-plinary proceedings against the attorney shall be stayed while the attorney is on disability inactive status. Any report and supporting records from a health care provider regarding the treatment of the attorney shall be confidential and sealed.

(b) An attorney transferred to disability inactive status may file a petition with the Court for restoration to active status. A copy of the petition shall be served on Bar Coun-sel, who shall have 20 days to file a response to the petition. If Bar Counsel objects to the petition, the matter shall be referred to the Character and Fitness Committee to conduct proceedings under SCR 2.300. If Bar Counsel has no objec-tion to the petition the Court may enter an order restoring the attorney to active status with or without conditions or refer the matter to the Character and Fitness Committee to conduct proceedings under SCR 2.300. If an attorney is restored to active status, any disciplinary proceedings that

have been stayed will be resumed.

XI. SCR 3.035 Membership Registration Requirements and Service

New rule SCR 3.035 replaces SCR 3.175 and shall read:

(1) Each attorney licensed by the Supreme Court to practice law in this Commonwealth shall:

(a) Maintain with the Director one official address at which he or she may be communicated with by mail and shall upon a change of that address notify the Director within ten (10) days of the new official address;

(b) Maintain with the Director one official email address and shall upon change of that address notify the Director within ten (10) days of the new official email address, except however, that “Senior Retired inactive” mem-bers, “Disabled Inactive” members and those “Honorary” members who no longer actively practice law or maintain an office shall not be required to maintain an official email address;

(c) Include his or her 5 digit member identification number on all filings with the Courts of the Commonwealth and in all communications with the Association.

If the member’s official address is a Post Office address, he or she must also provide an alternate address for service of process.

Failure to maintain a current address which allows for physical service of process with the Director may be pros-ecuted in the same manner as a violation of the Rules of Professional Conduct.

(2) Every member of the Association shall be deemed to have appointed the Director as that member’s agent for service of any document that is required to be served upon that member by any provision of Supreme Court Rule 2 or 3, provided that service of a document upon the Director shall constitute constructive service of that document upon the member only upon proof that all of the following require-ments have been satisfied:

(a) Reasonable efforts have been made to achieve actual service of the document upon the member;

(b) Two (2) true copies of the document have been pro-vided to the Director, accompanied by a written request that the Director serve the document upon the member at the member’s current Bar Roster address;

(c) Within seven (7) days after receipt of such request, the Director mailed one (1) copy of the document to the

SUPREME COURT RULES

33BENCH & BAR |

member at the aforesaid address, posted by certified mail, return receipt requested, restricted delivery--addressee only, in an envelope bearing the return address of the Director and marked on the outside as “OFFICIAL COMMUNICA-TION--IMMEDIATE ATTENTION REQUIRED”; and

(d) No less than thirty (30) days after mailing the doc-ument pursuant to subparagraph (c), the Director shall enter a Return of Service which attests:

(i) that the Director mailed one of the copies of the document mentioned in subparagraph (b) to the member’s Bar Roster address in accordance with the requirements of subparagraph (c);

(ii) that the Director has attached to the Return of Service all communications received in response to the service or attempted service of the document, including any certified mail receipt or other postal notice or return receipt relating to the delivery or attempted delivery of the document and any communication from the member of the Association or other person acting on behalf of such member; and

(iii) that the Director has provided a true copy of the Return of Service, with copies of all attachments, to the person or entity who requested service of the document upon the member of the Association.

(3) The Association may reject any communication to the Association which fails to comply with paragraph (1)(c) of this Rule 3.175, provided that a member’s failure to include his or her member identification number in a document shall not result in a default in any disciplinary proceeding.

XII. SCR 3.130(1.1) Competence

Section (6) of the Supreme Court Commentary 2009 to SCR 3.130(1.1) shall read:

Supreme Court Commentary2009:

Maintaining Competence

(6) To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with rel-evant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

XIII. SCR 3.130(1.5) Fees

Section (f ) to SCR 3.130(1.5) and sections (10) and (11)

to Supreme Court Commentary 2009 of SCR 3.130(1.5) shall read:

(f ) A fee may be designated as an advance fee. An advance fee agreement shall be in a writing signed by the client evidencing the client’s informed consent, and shall state the dollar amount of the retainer, its application to the scope of the representation and the time frame in which the agreement will exist.

Supreme Court Commentary 2009:

Fee Arrangements

(10) If a lawyer collects a deposit on a fee or for expenses, or a flat fee for services to be performed, the lawyer must deposit the funds in the lawyer’s trust account until the fee is earned or the expense incurred, at which time the funds shall be promptly distributed. The foregoing shall not apply to advance fees as set out in 1.5(f ). In the event the full amount that is held is not ultimately earned, or due to other factors, such as termination of the attorney-client relationship or is not reasonable, the funds must be returned to the client as provided in Rule 1.16(d).

Advance Fee

(11) A lawyer may designate a fee arrangement as an advance fee and upon receipt deposit such funds in the lawyer’s operating account. The amount of an advance fee must be reasonable in amount and comply with Rule 1.5. In the event the full amount is not ultimately earned, or due to other factors, such as termination of the attorney-client relationship or is not reasonable, the funds must be returned to the client as provided in Rule 1.16(d).

XIV. SCR 3.130(1.6) Confidentiality of information

Sections (7), (8), (9), (10), (11) and (13) of the Supreme Court Commentary 2009 to SCR 3.130(1.6) shall read:


Disclosure Adverse to Client

(7) A lawyer’s confidentiality obligations do not pre-clude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with these Rules. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(2) permits such disclosure because of the importance of a lawyer’s compli-ance with the Rules of Professional Conduct. SCR 3.530, Advisory opinion – informal and formal, authorizes a lawyer


to request an advisory opinion from the requester’s Supreme Court District Committee member regarding ethics and unauthorized practice of law questions. The question may be submitted in writing or by telephone using the KBA Ethics Hotline. Communications between the requester and any District Committee member or Ethics Committee member are granted confidentiality by SCR 3.530 and are permitted disclosure by paragraph (b)(2).

(8) Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other mis-conduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or represen-tation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer’s right to respond arises when an assertion of such complicity has been made. Paragraph (b)(3) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. Lawyers may also report incidents of potential malpractice that have not ripened into a client claim to a lawyer’s liability insurer for legal advice and to comply with policy reporting requirements provided the report is made on a confidential basis and protected by the attorney-client privilege. The right to defend also applies, of course, where a proceeding has been commenced.

(9) A lawyer entitled to a fee is permitted by paragraph (b)(3) to prove the services rendered in an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

(10) Other law may require that a lawyer disclose infor-mation about a client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the represen-tation appears to be required by other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(4) permits the lawyer to make such disclosures as are necessary to comply with the law.

(11) A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming author-ity pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer

should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(4) per-mits the lawyer to comply with the court’s order.

(13) Paragraph (b) permits but does not require the disclosure of information relating to a client’s representation to accomplish the purposes specified in paragraphs (b)(1) through (b)(4). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer’s decision not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).

XV. SCR 3.130(1.9) Duties to former clients

Section (5) of Supreme Court Commentary 2009 to SCR 3.130(1.9) shall read:


Lawyers Moving Between Firms

(5) Historically, another rubric used for dealing with disqualification has been the appearance of impropriety pro-scribed in Canon 9 of the ABA Model Code of Professional Responsibility. This rubric has a two-fold problem. First, the appearance of impropriety can be taken to include any new client-lawyer relationship that might make a former client feel anxious. If that meaning were adopted, disqualification would become little more than a question of subjective judgment by the former client. Second, since “impropri-ety” is undefined, the term “appearance of impropriety” is question-begging. It therefore has to be recognized that the problem of disqualification cannot be properly resolved either by simple analogy to a lawyer practicing alone or by the very general concept of appearance of impropriety.

XVI. SCR 3.130(1.15) Safekeeping property

Section (e) to SCR 3.130(1.15) and sections (3), (4), (5) and (6) to Supreme Court Commentary 2009 of SCR 3.130(1.15) shall read:

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(e) Except for advance fees as provided in 1.5(f ), a lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

SUPREME COURT COMMENTARY

(3) While normally it is impermissible to commin-gle the lawyer’s own funds with client funds, paragraph (d) provides that it is permissible when necessary to pay bank service charges on that account. Accurate records must be kept regarding which part of the funds are the lawyer’s. A lawyer may deposit funds in a trust account to provide funds for restitution of the defalcation caused by others, if nec-essary under any legal obligation to a banking institution, client or third party whose funds have been converted.

(4) Paragraph (e) requires that when a lawyer has col-lected an advance deposit on a fee or for expenses or a flat fee for services not yet completed, the funds must be deposited in the trust account until earned, at which time they should be promptly distributed to the lawyer. The foregoing shall not apply to advance fees as set out in 1.5(f ). At the termination of the client-lawyer relationship the lawyer must return any amount held that was not earned or was an unreasonable fee, as provided by Rules 1.5 and 1.16(d).

(5) The obligations of a lawyer under this Rule are independent of those arising from activity other than ren-dering legal services. For example, a lawyer who serves only as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction and is not governed by this Rule.

XVII. SCR 3.130(1.17) Sale of law practice

Subsection (3) to section (a) of SCR 3.130(1.17) shall read:

A lawyer or a law firm may sell or purchase a law practice, or a field of practice, including good will, if the following conditions are satisfied:

(a) The seller ceases to engage in:

(1) the private practice of law; or

(2) the field(s) of practice sold; or

(3) the practice of law in the geographic area in which the practice has been conducted, all as the seller and pur-chaser may agree;

XVIII. SCR 3.150 Access to disciplinary information

Subsections (c) and (d) to section (4) of SCR 3.150 shall read:

(4)(a) Request for Non-Public Information. A request for non-public information to the Office of Bar Counsel may be considered by the Inquiry Commission and may be granted if the request relates to an investigation by the requestor and is made by:

i. The Character and Fitness Committee;

ii. A Lawyer Disciplinary Enforcement Agency;

iii. A Judicial Disciplinary Enforcement Agency;

(b) A request for non-public information to the Office of Bar Counsel may be considered by the Court if the request is made by a Law Enforcement Agency, or other official authorized by federal or any state’s law to investigate or pros-ecute misdemeanors or felonies, or the equivalent thereof, in any jurisdiction, provided that the agency or official certifies under oath with specificity that the information is necessary to a pending investigation. In this event the Respondent shall receive notice unless the Court determines that disclosure of the request would seriously prejudice the investigation.

(c) In the absence of a third party request, the Inquiry Commission may permit the disclosure of any non- public information to any of the entities listed in (4)(a) upon appli-cation to it by the Office of Bar Counsel.

(d) In the event of a request under (4)(a) or (c) no notice to the Respondent is required, although the Inquiry Com-mission may require notice upon review of the application.

XVIX. Delete [SCR 3.175 Efficient enforcement; notice of attorney’s address]

New rule SCR 3.035 replaces SCR 3.175 and SCR 3.175 shall be deleted.

XX. SCR 3.185 Informal admonition procedure


(2) The Inquiry Commission may also issue a warning or a conditional dismissal letter including, but not limited to, conditions such as referral to KYLAP, attendance at a remedial ethics program or related classes as directed by the Office of Bar Counsel, or referral to fee arbitration under SCR 3.810. The attorney who receives the warning letter may, within 30 days from the date of the letter, respond to the letter and request that it be reconsidered by the Inquiry Commission.

XXI. SCR 3.285 Motion to reconsider or dismiss a charge



(2) The motion shall be verified and shall state specif-ically the reasons why the matter should be reconsidered or dismissed and may be accompanied by supporting affidavits and exhibits. The motion shall be filed in the office of the Disciplinary Clerk no later than 30 days prior to the evi-dentiary hearing or the Board’s consideration of the case. Any response shall be filed within 20 days of service of the motion. After a hearing of which the Respondent is given at least 5 days notice and an opportunity to be heard, the Com-mission shall rule on the motion at the next meeting of the issuing panel. No other motion to reconsider or dismiss shall be permitted in regard to the reconsideration of a charge by the Inquiry Commission, unless good cause is shown.

XXII. SCR 3.330 Order of proceedings and burden of proof


(1) The Trial Commissioner shall determine and regu-late the order of proceedings at the hearing. Upon request of a party or upon direction of the Trial Commissioner, the Disciplinary Clerk shall issue subpoenas for the attendance of witnesses or the production of evidence.

(2) Every subpoena shall command each person to whom it is directed to attend and give testimony and/or to produce designated documents in that person’s possession, custody, or control, at the time and place therein specified. Notice of the subpoena shall be provided to each party and to any person or entity whose information is being requested. Copies of all documents received in response to the subpoena shall be furnished to the opposing party, except on Motion and for good cause shown.

(3) Prehearing discovery shall proceed in accordance with this rule as directed by the Trial Commissioner rather than by the Kentucky Rules of Civil Procedure. If reasonably necessary to prepare the case for hearing, the Trial Commis-sioner may allow the taking of depositions and require the production of documents.

(4) The burden of proof shall rest upon the Association in a disciplinary proceeding, and the facts must be proven by a preponderance of the evidence. In reinstatement hear-ings the burden shall rest upon the Applicant, and he/she must demonstrate by clear and convincing evidence his/her suitability for reinstatement.

(5) Before submission the Trial Commissioner may direct such oral argument as he/she deems appropriate and may allow briefs, not to exceed 30 pages, from all parties, which shall be filed simultaneously within 30 days after the record is filed with the Disciplinary Clerk. The trial commis-sioner shall have discretion to extend the page limit of briefs.

XXIII. SCR 3.500 Restoration to membership

Subsection (e) to section (3) and section (4) of SCR 3.500 shall read:

(3)(e) If the Character and Fitness Committee recom-mends approval of the application and the Board concurs, the application shall be referred to the Board of Bar Exam-iners of the Kentucky Office of Bar Admissions, for the administration of a written examination which includes the subject of professional ethics and 5 of the subjects listed in SCR 2.080(1). A general average score of 75% or higher shall be deemed a passing score. Fees required by SCR 2.022, and SCR 2.023 shall be paid prior to taking the exam-ination. As an alternative and upon referral from the Board of Governors, if the Applicant has practiced in a reciprocal jurisdiction after withdrawal pursuant to SCR 3.480 and meets all requirements of SCR 2.110, the Applicant may elect to have the Character and Fitness Committee consider an application for admission without examination under SCR 2.110. All fees required by that rule shall be paid prior to the processing of the application, instead of the fee referenced in subsection 3(d) of this rule.

If the Applicant passes the examination or is approved for admission without examination, such fact shall be cer-tified to the Court and to the Director, together with a recommendation for the Applicant’s restoration to mem-bership. Upon this certification, the Disciplinary Clerk shall transmit the record to the Court for its consideration of the application for restoration. If the applicant fails the examination, the Board of Bar Examiners shall certify the fact of the failure to the Court and the Director. Upon that certification, the Disciplinary Clerk shall transmit the record to the Court for entry of an order denying restoration.

The provisions of SCR 2.015, SCR 2.080, and SCR 2.110 shall apply where not inconsistent with these provisions.

(4) All costs incurred in excess of the filing fee shall be paid by the Applicant. Upon referral to the Character and Fitness Committee, if pursuing restoration through subsec-tion (3)(d) of this rule, a cash or corporate surety bond in the amount of $2500.00 to secure the costs to be incurred shall be paid to the Office of Bar Admissions by the Applicant.

XXIV. SCR 3.505 Character and Fitness Committee; reinstatements

Subsection (c) to section (1) of SCR 3.505 shall read:

(1) The Character and Fitness Committee created by SCR 2.040 shall, in addition to the powers and duties con-ferred in that rule, consider all applications for reinstatement

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to the practice of law by persons who:

(a) have been suspended for more than one hundred eighty (180) days;

(b) have been suspended for one hundred eighty (180) days or less, but whose reinstatement has been opposed by Bar Counsel.

(c) Have been transferred to disabled inactive status pursuant to SCR 3.030.

XXV. SCR 3.510 Reinstatement in case of disciplinary suspension


(2) If the period of suspension has prevailed for 180 days or less, the suspension shall expire by its own terms upon the filing with the Clerk and Bar Counsel of an affidavit of compliance with the terms of the suspension, which must include a certification from the CLE Commission that the Applicant has complied with SCR 3.685. The Registrar of the Association will make an appropriate entry in the records of the Association reflecting that the member has been rein-stated; provided, however, that such suspension shall not expire by its own terms if, not later than 10 days preceding the time the suspension would expire, Bar Counsel files with the Inquiry Commission an opposition to the termination of suspension wherein Bar Counsel details such information as may exist to indicate that the member does not, at that time, possess sufficient professional capabilities and qualifications properly to serve the public as an active practitioner or is not of good moral character. A copy of such objection shall be provided to the Character and Fitness Committee, to the member concerned, and to the Registrar. Within 90 days after the filing of the objection, the Respondent shall have the opportunity to show Bar Counsel that he/she possesses the sufficient professional capabilities and qualifications to serve the public as an active practitioner or is of good moral character. Upon such showing, Bar Counsel shall withdraw its objection. If the objection has not been withdrawn, the Character and Fitness Committee shall conduct proceedings under SCR 2.300. In cases where a suspension has prevailed for 180 days or less and the reinstatement application is referred to the Character and Fitness Committee, a fee of $1500.00 shall be made payable to the Kentucky Office of Bar Admissions.

XXVI. SCR 3.530 Ethics Committee and Unauthorized Practice Committee – advisory opinions – informal and formal

Sections (3), (6) and (10) of SCR 3.530 shall read:

(3) Communications between the requesting attorney and the Ethics Committee member shall be confidential,

but confidentiality may be waived by the requesting attorney. However, the requesting and giving of advice under this Rule does not create an attorney-client relationship. In order to promote uniformity of advice, redacted copies of informal opinions may be circulated among members of the Ethics Committee, as applicable, provided that such confidentiality is preserved.

(6) Any attorney licensed in Kentucky or admitted to practice law in another state who is in doubt as to the propriety of any course of conduct or act of any person or entity which may constitute the unauthorized practice of law may make a request in writing, or in emergencies, by telephone, to the Chair of the Unauthorized Practice Com-mittee, or such other members of the Unauthorized Practice Committee as are designated by the Chair, for an advisory opinion thereon. Local bar associations may also request advisory opinions. The Committee member to whom the request is directed shall bring this matter to the attention of the Committee at its next meeting. The Committee may attempt to furnish the requesting attorney with a prompt telephonic answer and written informal letter opinion as to whether the conduct constitutes the unauthorized practice of law. A copy of such informal opinion shall be provided to the Director and the Chair of the Unauthorized Practice Committee. Any attorney licensed in Kentucky or admitted under SCR 3.030(2) who is in doubt as to the ethical pro-priety of any professional act contemplated by that attorney with respect to the unauthorized practice of law shall be referred to the Ethics Committee district member for an informal opinion as set forth in (2) and (3). Communications about such an inquiry between the requesting attorney and the unauthorized practice committee member, and between the committee members of the two committees, shall be confidential.

(10) Ethics Committee and Unauthorized Practice Committee members shall be immune from suit for advice given in the performance of duties under this Rule. Ethics Committee and Unauthorized Practice Committee members shall be immune from process and shall not otherwise be compelled to testify or give an opinion in connection with any advice given in the performance of duties under this rule.

XXVII. SCR 3.640 New Lawyer Program requirement

Subsections (a), (b) and (c) to section (7) of SCR 3.640 shall read:

(7) A member required to complete the New Lawyer Program pursuant to paragraph (1) of this Rule may, upon application to and approval by the Commission, be exempted from the requirement under the following circumstances:


(a) The member is admitted to practice in another juris-diction for a minimum of 5 years, and will certify such prior admission to the Commission;

(b) The member has attended a mandatory new lawyer training program of at least 12 credits, including 2 ethics credits, offered by the state bar association of another juris-diction and approved by the Director for CLE; or

(c) The member is an active member of the United States armed forces, who has completed a mandatory new lawyer training of at least 12 credits, including 2 ethics credits, offered by the United States armed forces branch in which he/she is an active member, and approved by the Director for CLE.

XXVIII. SCR 3.660 Procedure for accreditation of continuing legal education activities and obligations of sponsors


(2) Application for accreditation of continuing legal education activities shall be made by members, former members or activity sponsors using forms provided by the Commission or using uniform applications adopted by the Commission. Applications must provide all information required by the form in order to be reviewed. All applications shall be accompanied by an application fee, as determined by the Commission.

XXIX. SCR 3.665 Exemptions and removal of exemptions

Subsection (e) to section (1) and subsection (a)(ii), (iii), (iv) and (v) to section (2) of SCR 3.665 shall read:

(1) For each educational year, the following members of the Association shall be exempt from the requirements of SCR 3.645:

(a) In recognition of their positions, which prohibit the practice of law and have significant continuing education requirements by statute or rule of court as a result of the positions they hold, members who, during any portion of that educational year, are serving as:

(i) Justices, Judges, or Magistrates of the Common-wealth or Court of the United States; or

(ii) full-time administrative law judges for an agency of the United States or Commonwealth of Kentucky executive branch.

(b) Justices and Judges of the Commonwealth leaving the bench will be allowed to use accumulated Continuing

Judicial Education credits toward the required CLE mini-mum, up to 12 credits, including 2 ethics, for the first year they are subject to the CLE requirement after leaving the bench.

(c) New lawyers who have been admitted less than 1 full educational year as of the June 30th deadline. Such members shall be subject to the New Lawyer Program requirement, as set forth in SCR 3.640.

(d) Members who are at least 75 years of age or at least 50 year members, including members who will become 75 years of age and those who become 50 year members within the educational year.

(e) Members who have been transferred to disabled inactive status pursuant to SCR 3.030.

(2) Upon application to the Commission, the following members may be exempted from the requirements of SCR 3.645:

(a) Non-practice exemption: Members who do not practice law, as defined in SCR 3.020, within the Com-monwealth and agree to refrain from such practice until the Commission approves an application for removal of the exemption.

(i) Non-practice exemptions shall not be effective ret-roactively unless the applicant certifies that he or she has not practiced law, as defined in SCR 3.020, within the Com-monwealth, for all time periods covered by such exemption.

(ii) Practice of law as defined in SCR 3.020, within the Commonwealth, during the effective period of this exemption pursuant to SCR 3.665(2)(a) shall constitute the unauthorized practice of law. Information known by the Commission regarding the practice of law during any period for which a member has certified non-practice status pursuant to SCR 3.665(2)(a) is not confidential as provided by SCR 3.695 and shall be provided along with the mem-ber’s continuing legal education transcript by the Director for CLE to the Office of Bar Counsel and the Inquiry Com-mission in writing.

(iii) Any member who has been classified as Senior Retired Inactive status pursuant to SCR 3.030(4), and so holds a non-practice exemption from the mandatory min-imum annual CLE requirement as set forth in this Rule, may donate legal services through a duly organized legal aid program offering pro bono representation, or a local bar association legal pro bono program or initiative.

(iv) A member seeking removal of a non-practice exemption shall be required to file a written application with the Commission, addressed to the Director for CLE, for the

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removal of said exemption. Required as an attachment to the application for removal of said exemption shall be certifica-tion of completion of sufficient continuing legal education credits to meet the minimum annual continuing legal educa-tion requirement for each educational year during which he or she was exempt, excluding the current educational year. In no case shall a member be required to certify completion of more than 12 credits, including applicable ethics credits, as a condition of removal of the exemption. Timely certification shall include only continuing legal education credits earned during the current educational year and 2 prior educational years. This Rule in no way affects the member’s responsibility to complete the current year minimum annual education requirement by June 30th. The current year minimum edu-cational requirement must be completed as set forth at SCR 3.645. The member shall be notified in writing, via certified mail, of the commission’s action on the application for the removal of the exemption.

(v) Application for removal of an exemption granted pursuant to SCR 3.665(2)(a) may not be made within 30 days of the granting of the exemption.

(b) Hardship exemption: Members who practice law within the Commonwealth, but demonstrate that meet-ing the requirements of SCR 3.645 would work an undue hardship by reason of disability, sickness, or other clearly mitigating circumstances.

(c) Military exemption: Any member who, for any portion of an educational year, was on active duty in the United States armed forces or whose spouse was on active duty in the United States armed forces for any portion of an educational year.

XXX. SCR 3.670 Extension of time requirements

Section (1), subsections (a), (b), (c)(i), (ii), (iii), (iv), (d)(i), (ii), (iii) and (iv) to section (2) of SCR 3.670 shall read:

(1) The time requirements associated with completion of continuing legal education and certification thereof, as set forth in SCR 3.645(1), may be extended by the Commission in case of hardship or other good cause clearly warrant-ing relief. Requests for time extensions for completion of activities or certification thereof shall be made to the Com-mission in writing. All requests for time extension must be received by the Commission no later than the Septem-ber 15 following the end of the educational year for which the time extension is sought. Requests must set forth all circumstances upon which the request is based, including supporting documentation. Applications for time exten-sions for completion of the New Lawyer Program may be submitted pursuant to SCR 3.640(8).

(2) A member who fails to complete the requirements of

SCR 3.645 for any educational year, and who cannot show hardship or other good cause clearly warranting relief, may submit an application for a non-hardship extension of time in which to earn the annual minimum requirement. The application, which shall be made on KBA forms or by such other appropriate method approved by the Commission, must meet the following requirements:

(a) Applications will not be deemed complete but will be accepted prior to earning and reporting the credits required to cure the deficiency if the application contains a detailed plan for completing the annual requirement. The detailed plan must contain specific information regarding the program(s) that will be taken, including the date, delivery format, location, and sponsor of the program.

(b) In any event, all required credits must be completed and reported, and the application must be received by the Director for CLE pursuant to the fee and filing schedule set forth in section (c) below.

(c) Fee and filing schedule:

(i) For complete applications received by August 15 following the end of the educational year for which the extension is sought, the application fee is $250.00.

(ii) For complete applications received by September 15 following the end of the educational year for which the extension is sought, the application fee is $350.00.

(iii) For complete applications received by October 15 following the end of the educational year for which the extension is sought, the application fee is $500.

(iv) No applications for non-hardship time extensions will be accepted after October 15 following the end of the educational year for which the extension is sought.

XXXI. SCR 3.675 Non-compliance: procedure and sanctions


(4) Unless good cause is shown by the return date of the notice, or within such additional time as may be allowed by the Board, the lawyer will be stricken from the membership roster as an active member of the KBA and will be suspended from the practice of law or will be otherwise sanctioned as deemed appropriate by the Board. A copy of the suspension notice shall be delivered by the Director to the member, the Clerk of the Kentucky Supreme Court, the Director of Membership, and to the Circuit Clerk of the district wherein the member resides for recording and indexing.

(6) A member may appeal to the Supreme Court of Kentucky from such suspension within 30 days of the date


the suspension notice is recorded in the membership records. Such appeal shall include an affidavit showing good cause why the suspension should be revoked.

XXXII. SCR 3.685 Continuing legal education requirements for restoration or reinstatement to membership: procedures


(1) Every former member or member transferred to disability inactive status pursuant to SCR 3.030, applying for or otherwise seeking restoration or reinstatement to mem-bership pursuant to Rules 3.500 or 3.510, shall be required to have completed the minimum annual continuing legal education requirement for each year during which he or she was not a member in good standing, including any year prior to disbarment, suspension or withdrawal under threat of disbarment or suspension, during which the minimum annual continuing legal education requirement was not ful-filled. Completion of such credits shall be certified to the Commission as a condition precedent to reinstatement or restoration. In no case shall a member be required to attend more than 60 continuing legal education credits, including applicable ethics credits, as a condition precedent of resto-ration or reinstatement to membership.

(3) The requirements for completion of continuing legal education as a condition to restoration or reinstatement as set forth above may only be satisfied with credits earned in the current educational year during which the application is submitted and the preceding 5 educational years. Credits so earned shall be applicable to requirements imposed by the Commission upon application or other actions undertaken in pursuit of restoration or reinstatement.

XXXIII. SCR 3.810 Legal fee arbitration

Subsection (D) to section (2) of SCR 3.810 shall read:

(2) Definitions.

(D) “Dispute” means a disagreement between an attorney and a client relative to the fee due the attorney for particular legal services rendered, or a disagreement between attorneys concerning the amount of the fees due each attorney for particular legal services rendered. This includes a matter that is the subject of a diversion pursuant to SCR 3.160(3), or a matter referred for fee arbitration by the Inquiry Commission or Court.

XXXIV. SCR 3.820(11)(b)(1) Clients’ Security Fund

Subsection (b)(1) to section (11) of SCR 3.820 shall read:

(11) Procedures and Responsibilities for Claimants

(a) The Trustees shall prepare and approve a form for claiming reimbursement.

(b) The form shall include at least the following infor-mation provided by the claimant under penalty of perjury:

(1) the name and address of claimant, home and business telephone, occupation and employer;

XXXV. SCR 7.010 Terms of office


The terms of office of bar representatives on the judi-cial nominating commissions described in section 118 of the Constitution shall be deemed to have commenced on January 1, 1976. The initial elections in 1976 shall be spe-cial elections for the purpose of filling the unexpired terms. Regular elections shall be held on the first Tuesday following the first Monday in November every four years.

XXXVI. SCR 7.030 Nomination and election--regular elections of bar representatives to judicial nominating commissions

Sections (6), (7), (8), (9), (10), (11), (12), (13) and (14) of SCR 7.030 shall read:

(6) Ballots shall be prepared by the director. The various commissions shall be on separate ballots but may be included in one mailing. The ballot for each commission shall include the names of the candidates, listed in alphabetical order, and the addresses at which they reside. There shall be printed on each ballot in boldface type the words “This ballot must be received by the director on or before the first Tuesday following the first Monday in November” and the words, “You may not vote for more than two or your ballot will not be counted”.

(7) On or before October 10 of the year in which the election is to be held the ballots shall be mailed, or made available on-line, to the following members: A ballot for the commission for the Supreme Court and the Court of Appeals shall be sent to each member residing in the Com-monwealth of Kentucky; a ballot for the commission for each judicial circuit shall be sent to each member residing in the circuit.

(8) All ballots must be received by the director on or before the first Tuesday following the first Monday in

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November. On or before the following December 1 a can-vassing board consisting of five (5) members appointed by the president shall meet in the office of the director and tabulate the votes. Each candidate or a representative des-ignated by him in writing may be present at the meeting of the canvassing board.

(9) The two (2) candidates for each commission receiv-ing the highest number of votes shall be elected. If two (2) or more candidates are found to have received an equal number of votes, the election shall be fairly determined by lot under the supervision of and in the presence of the can-vassing board.

(10) The canvassing board shall immediately make and forward to the Chief Justice and the director a written cer-tification of the election. The director shall promptly notify each candidate of the results of the election and shall publish the results in the next official association publication.

(11) On or before December 10 following the elec-tion any defeated candidate may contest the election of his successful opponent or opponents. Such contest shall be by written petition to the Supreme Court stating the grounds of contest and certifying that a copy has been served on the adversary party or parties. The matter shall be summarily heard and determined in such manner, and relief granted or denied upon such grounds, as the court shall deem fair and equitable.

(12) As soon as practicable after the election the director shall certify to the Supreme Court for its approval an item-ization of all costs incurred in the election of members to the commissions. Upon its approval of such costs the court shall order payment to the association out of the state treasury.

(13) Within sixty (60) days after the election the direc-tor shall transmit all petitions, ballots and other applicable records to the administrative director of the courts.Credits

All sitting. All concur.

ENTERED: November ____, 2017.


FAMILY COURT RULES OF PROCEDURE AND PRACTICE (FCRPP)

I. TITLE AND SCOPE OF RULES

FCRPP 1 Title and Scope

(1) Pursuant to KRS 403.130, these rules constitute a separate section of the civil rules and shall be known as the Kentucky Family Court Rules of Procedure and Practice. They may be cited as such, or by the abbreviation “FCRPP.”

(2) These Rules shall be applicable to the procedure and prac-tice in all actions pertaining to dissolution of marriage; custody and child support; visitation and time-sharing; property division; maintenance; domestic violence; paternity; dependency; neglect or abuse; termination of parental rights; adoption; and status offenses, or any other matter exclusively within family law jurisdiction, except for any special statutory proceedings, which shall prevail over any inconsistent procedures set forth in these Rules.

(3) Self represented litigants shall be held to knowledge of these rules the same as parties represented by counsel.

(4) The Rules of Civil and Criminal Procedure shall apply to family law matters to the extent they are not inconsistent with these Rules.

II. DISSOLUTIONS AND PROPERTY DIVISION

FCRPP 2 Preliminary Matters

(1) Original Pleadings. All original pleadings, including forms, in a dissolution action shall be signed by the preparer, filed with the clerk of the court, and if applicable, shall include, unless otherwise ordered by the court, the following:

(a) A verified petition;

(b) Proof of service;

(c) A verified response, or a verified entry of appearance in lieu of a response;(d) Unless waived by the court pursuant to KRS 403.180(4)(b), a verified separation agreement;(e) The Final Verified Disclosure Statement;(f ) A verified waiver of notice of final hearing;(g) A verified deposition or interrogatories for proof of the allegations of the petition if done without a hearing;(h) A divorce education certificate; and(i) A child support work sheet.

(2) Multiple Actions. When actions concerning the same sub-ject matter are filed in different circuits, the first action filed shall be the controlling action, subject to transfer by the court of that circuit on a motion for forum non conveniens or other appropriate legal grounds. A motion for transfer shall be filed prior to or with the response. On notice to the parties, the courts in both circuits may confer concerning the proper venue.

(3) Preliminary Mandatory Disclosure. A preliminary verified disclosure statement which contains the contents of the official AOC form, AOC-238, Preliminary Verified Disclosure Statement, shall be exchanged between the parties within 45 days of service of the petition on the respondent, and objections thereto shall be exchanged 20 days thereafter but the disclosures shall not be filed in the record unless ordered by the court or required by local rule. The official AOC form, AOC-238, is available for use in compliance with this rule.

(4) Exchange of Information and Documents. The parties shall sign and return specific releases for relevant information and documents unless objected to in writing. Such releases shall con-tain a provision directing that any information and/or documents provided in writing to the requesting counsel or pro se party shall simultaneously be transmitted to the other counsel or pro se party, at requesting party’s expense. Upon objection, the requesting party may file a motion to compel.

(5) Status Quo Orders. Without limiting a party’s relief under

IN RE:

ORDER AMENDING

FAMILY COURT RULES OF PROCEDURE AND PRACTICE (FCRPP)

2017-14

The Family Court Rules of Procedure and Practice (FCRPP) amended October 18, 2017 shall become effective January 1, 2018.

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CR 65, upon notice and opportunity to be heard, a court may enter a status quo order regarding disposition of the marital estate. Any such order may be entered on the AOC-237. A status quo order may include but not be limited to the following:

(a) Neither party shall, except as necessary to pay reasonable living expenses, incur unreasonable debt, sell, encumber, gift, bequeath or in any manner transfer, convey or dissipate any property, cash, stocks or other assets currently in their posses-sion or in the control of another person, company, legal entity or family member without permission of the court or an agreed order signed by both parties or their attorneys.(b) Neither party shall allow the cancellation or lapse of any health, life, automobile, casualty or disability insurance currently covering themselves or a family member or change the named beneficiaries on such policies prior to receiving permission of the court or filing an agreed order signed by both parties or their attorneys.

(6) Case Management.

(a) Mediation.(i) The parties may agree to mediate at any time. After notice and opportunity to be heard and unless prohibited by KRS 403.036 (domestic violence), the parties may be ordered to mediate any issues before further proceedings. (ii) Within 10 days of a final mediation, if the parties have been unable to resolve all issues, the petitioner shall file a motion for a case management conference or final hearing date, unless previously scheduled by the court.

(b) Case Management Conference.(i) Unless notice is given to the court that a case is being mediated, within 60 days of service of the petition upon the respondent, the petitioner shall file a motion for a case management conference. (ii) Both parties and their counsel shall attend the confer-ence, unless otherwise ordered by the court. (iii) Each party shall file the following documents at least 7 days prior to the conference:

(a) Any related motions; and (b) Any stipulations or agreements reached.

(iv) In the event of failure of a party or parties to appear at the conference, the court may, in accordance with its order, conduct a hearing in which proof may be taken or the case dismissed, as the court may determine appropriate.

(7) Trial. The trial shall not be continued except as otherwise ordered for good cause shown on the record.

(8) Temporary Motions.

(a) Any ex parte motion shall be accompanied by a supporting affidavit sufficient to state grounds for injunctive relief, and if granted, shall be set for hearing with all parties at the earliest available date.

(b) Any pendente lite motions shall be served on the opposing party and set for a hearing before the court unless otherwise agreed to by the parties.

FCRPP 3 Obtaining a Decree of Dissolution(1) Matters Not Requiring a Trial.

(a) If the parties reach an agreement on all issues, a decree of dissolution may be obtained without a trial by filing a motion or agreed order to submit for decree of dissolution of marriage, and the parties shall further comply with any local rule requiring additional filings.

(b) A decree shall not be final until the original is signed by the court and entered by the clerk.

(c) If the parties reach an agreement on individual issues short of settling the entire case, the agreement, signed by both parties, may be submitted to the court for approval and entry.

(2) Default cases.

In all cases of default, the motion to submit for decree shall state the following:

(a) That no answer or pleadings have been received by the moving party or counsel;

(b) That the respondent was personally served and 20 days have elapsed since service, or that a warning order attorney was appointed, has filed a report and affidavit and that 50 days have elapsed since appointment of the warning order attorney; and,

(c) Shall include certification that the motion and notice of trial or submission has been served on the opposing party at the party’s last known address; and if the party is on active military duty, that the provisions of the Servicemembers Civil Relief Act have been followed.

(3) Matters Requiring a Trial.

(a) If the parties do not reach an agreement on any or all issues, a trial shall be held, on motion, as set by the court.

(b) No later than 5 days prior to the trial, the parties shall file a final verified disclosure statement in the record if property mat-ters are in dispute at that trial; or the parties may file an affidavit that there are no changes in circumstance since the completion of the preliminary verified disclosure statement, if filed. The final verified disclosure statement shall contain the contents of the official AOC form, AOC-239, Final Verified Disclosure Statement, which is available for use in compliance with this rule. Further, any affidavit filed in lieu of the final verified dis-closure statement shall contain the content of the official AOC form, AOC-239.2, Affidavit of No Change in Circumstances


Requiring the Filing of a Final Verified Disclosure Statement, which is also available for use in compliance with this rule.

(c) A copy of final verified disclosure statement or the affidavit in (b) above, together with any supporting documentation, shall be provided to the opposing party 15 days prior to trial unless otherwise ordered by the court.

(4) Evidence and Exhibits.

(a) A court-appointed expert’s report shall be in lieu of live testimony, unless either party subpoenas the expert to testify or unless the court orders otherwise. The party who subpoenas the expert shall be responsible for paying the expert’s fee for appearance at trial, unless otherwise ordered by the court.

(b) In the trial order, the court shall order parties to exchange the list of exhibits to be submitted at trial. Absent good cause shown, failure to provide an exhibit list may result in the exclu-sion of such exhibit at trial.

(c) Originals of depositions, interrogatories or requests for admissions, shall not be filed in the court record unless offered as proof. The attorney who noticed the taking of a deposition, or propounded the interrogatories or requests for admissions, shall be the custodian of the record for the originals, and shall present them when directed by the court or at the request of any party.

FCRPP 4 Procedures Before the Domestic Relations Commissioner

(1) In jurisdictions having no family court, the circuit judge may appoint a domestic relations commissioner, who shall serve at the pleasure of the court. The court may refer domestic relations matters under KRS Chapter 403 to the domestic relations commissioner, except for domestic violence proceedings, contempt proceedings and injunctive relief proceedings. Any local rules relating to domes-tic relations commissioners shall be approved by the Chief Justice and be uniform in all divisions of circuit court within each county of each circuit.

(2) Each domestic relations commissioner shall have been licensed to practice law for at least eight years at the time of appointment, unless otherwise authorized by the Chief Justice, and shall satisfy the annual continuing legal education minimum requirement with domestic relations law education. Additionally, each domestic relations commissioner shall attend a training pro-gram, at least once every two years, which focuses on the dynamics and effects of domestic violence including the availability of com-munity resources, victims’ services and reporting requirements. Domestic relations commissioners shall not otherwise engage in the practice of domestic relations law.

(3) The domestic relations commissioner shall hear all matters and file a report promptly pursuant to KRS 454.350(2). Testimony may be heard orally before the commissioner or by deposition or

interrogatory. All actions involving indigents shall be heard by the commissioner without fee. Proceedings before the commissioner shall be recorded by audio or video and a recording log shall be kept. The domestic relations commissioner shall file the recorded hearings and the recording log in the record with the clerk of the court. Transcriptions shall not be required for any purpose within this Rule.

(4) The domestic relations commissioner shall have the author-ity to make recommendations to the judge regarding motions for temporary orders of custody, support and maintenance. All tem-porary and final decrees and orders shall be entered by the court upon review of the recommendations of the domestic relations commissioner as set forth below:

(a) Within 10 days after being served with a copy of the commissioner’s recommendations, any party may file written objections thereto with the court. After hearing the court may adopt the recommendations, modify them, or reject them in whole or in part, or may receive further evidence or may recom-mit them for further hearing.

(b) The circuit court shall sign any recommended temporary or post-decree order within 10 days after the time for filing excep-tions has run unless a motion for a hearing on the exceptions has been filed. All temporary recommendations of the domestic relations commissioner which become orders of the court shall be without prejudice and subject to the court’s de novo review on final hearing.

(c) If the parties stipulate that the commissioner’s findings of fact shall be final, only questions of law arising upon the rec-ommendations shall thereafter be considered.

(d) All final decrees shall be entered by the court within 20 days of submission if no exceptions have been filed. If exceptions have been filed, entry of the final decree shall occur within 10 days of disposition of the exceptions.

(5) For any case assigned, the domestic relations commissioner shall receive a fee of $60 per hour, assessed at a rate of $15.00 for each quarter hour or part thereof. Such fees shall be paid through the office of circuit court clerk to the commissioner and shall be due on the fifth working day following the conclusion of the hear-ing. No more than $600 shall be assessed in any case regardless of the number and length of hearings unless recommended by the circuit judge and approved by the Chief Justice for extraordinary circumstances shown. If a case is reopened additional fees totaling not more than $200 may be assessed. No more than $15 shall be assessed in any uncontested divorce.

(6) The compensation of domestic relations commissioners shall be by fee charged upon the parties, or paid out of any fund or subject matter of the action which is in the custody or control of the circuit court. This compensation shall be paid to the circuit court clerk, who shall issue payment to the commissioner.

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(7) All domestic relations commissioners shall be limited in their total personal compensation derived from fees to not more than $48,000 per annum unless approved by the Chief Justice. Fees in excess of the personal compensation of the commissioner shall be remitted to the Administrative Office of the Courts with the annual accounting for all amounts received.

(8) The Administrative Office of the Courts shall establish audit and accounting standards, prescribe bookkeeping and accounting practices and procedures, and otherwise perform audits and over-see the financial accounts of domestic relations commissioners. A copy of any audit shall be submitted by the Administrative Office of the Courts to the chief judge of the circuit. In the event that the audit reveals an accounting or other irregularity, a copy shall also be submitted to the Chief Justice.

(9) The commissioner shall not retain his or her recommen-dations as security for his or her compensation. When the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, that party may be subject to civil contempt.

FRCPP 5. Maintenance

(1) Motions to Establish or Modify Temporary or Permanent Maintenance.

(a) All motions to establish or modify temporary or permanent maintenance shall be accompanied by the following:

(i) A statement from movant setting forth the amount of maintenance requested. (ii) Copies of the movant’s last three pay stubs or, if movant is self-employed, proof of the movant’s current income. (iii) An affidavit setting forth movant’s monthly expenses and income and the monthly income of the party against whom the motion is brought, if known. (iv) The most recently filed federal and state income tax return. (v) The notice of hearing accompanying the motion shall contain the following statement “You must file with the Court, at least 24 hours prior to the time of the hearing, copies of your last three pay stubs, or if self-employed, proof of your current income, your most recently filed federal and state income tax returns and an affidavit setting forth your monthly expenses and income.”

(b) A respondent shall file the following information with the court and serve the movant at least 24 hours prior to the hearing:

(i) Copies of the respondent’s last three pay stubs or, if self-employed, proof of current income.(ii) The most recently filed federal and state income tax returns.(iii) An affidavit setting forth the respondent’s monthly expenses and income.

III. CUSTODY, SHARED PARENTING, VISITATION AND SUPPORT

FCRPP 6 General Provisions

(1) The provisions of this section shall apply to all actions in which there are disputes regarding custody, shared parenting, vis-itation or support.

(2) A parent or custodian may move for, or the court may order, one or more of the following, which may be apportioned at the expense of the parents or custodians:

(a) A custody evaluation;

(b) Psychological evaluation(s) of a parent or parents or custo-dians, or child(ren);

(c) Family counseling;

(d) Mediation;

(e) Appointment of a guardian ad litem;

(f ) Appointment of a friend of the court or de facto friend of the court;

(g) Appointment of such other professional(s) for opinions or advice which the court deems appropriate; or,

(h) Such other action deemed appropriate by the court.

(3) The court or domestic relations commissioner shall conduct a hearing on any motion for temporary custody, time sharing, vis-itation or child support, within 60 days of the filing of the motion except for good cause stated on the record. Nothing herein prevents the parties from entering into an agreement on these issues.

(4) In all proceedings for the dissolution of marriage in which children of the marriage are minors, or in any custody proceedings, the court may order the parents or custodians and children to par-ticipate in counseling or divorce education on a case-by-case basis, which shall be at the expense of the parties.

OFFICIAL COMMENTARY:

Particular attention should be paid to the distinction between a guardian ad litem appointed pursuant to subsection (2)(e) and a friend of the court appointed pursuant to subsection (2)(f ). A guardian ad litem is an attorney advocating for the best interest of the child and should be appointed with that role in mind. Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). “The GAL should not file reports, testify, make recommendations, or otherwise put his own or her own credibility at issue.” Id. at 114. By contrast, a friend of the court or de facto friend of the court is an investigator who


advises the court. He or she may make recommendations and file reports, and he or she is subject to cross-examination by the parties’ counsel. Use of the AOC form orders of appointment is required to avoid conflating these two roles and to provide clarity to appointed persons, counsel, and parties.

FCRPP 7 Custody

(1) Unless otherwise ordered by the court, in any action in which the permanent custody or time-sharing of the child(ren) is in issue, each party shall, not less than 14 days prior to the day set for hearing, provide the other party(ies) with a list of the names and addresses of every person and a short statement of the subject of their testimony, other than a parent or the child(ren) of the par-ents, expected to be called as a witness, as well as a list of exhibits to be entered.

(2) Relocation.

(a) Joint Custody(i) Before a joint custodian seeks to relocate, written notice shall be filed with the court and served on the non-relo-cating joint custodian.(ii) The written notice shall include the proposed reloca-tion address, date of relocation and the effect, if any, of relocation on court-ordered time-sharing. (iii) If court-ordered time-sharing is affected by the pro-posed relocation, within 20 days of the filing of the notice, the relocating joint custodian shall file an agreed order or a motion to modify the existing time-sharing order. (iv) Within 20 days of service of the notice, the non-relo-cating joint custodian may file a motion to modify custody or time-sharing.

(b) Sole Custody (i) Before a sole custodian seeks to relocate, written notice shall be filed with the court and served on the non-cus-todial parent.(ii) The written notice shall include the proposed reloca-tion address, date of relocation and the effect, if any, of relocation on court-ordered time-sharing.(iii) If the court-ordered time-sharing is affected by the relocation, within 20 days of service of the notice, the non-custodial parent may file a motion contesting the change in time-sharing.

SUPREME COURT STANDING COMMITTEE ON THE FCRPP (2012) COMMENTARY

Pursuant to KRS 403.770, if the relocating custodian has an active Emergency Protective Order or Domestic Violence Order against the other parent or custodian, the relocating custodian must not be required to disclose to the other party the relocation destination. The court and clerks will strictly comply with the stat-utory mandates set forth in KRS 403.770. If the domestic violence action is not pending in the same circuit, the court may require the

relocating custodian to disclose the relocation destination provided only if the location is filed under seal, with strict confidentiality maintained by the court and clerk, and the location is not disclosed to the opposing party.

FCRPP 8 Time-Sharing/Visitation(1) A parent shall be entitled to time-sharing/visitation as

ordered by the court, which may be in accordance with the Model Time-Sharing/Visitation Guidelines, unless otherwise agreed to by the parties or ordered by the court.

(2) Model Time-Sharing/Visitation Guidelines are set forth in Appendix A to these Rules or other guidelines may be applied and set forth in local rules.

FCRPP 9 Support

(1) Once support has been set by the court, it shall continue in full force and effect unless modified by the court, or ended by operation of law.

(2) An order directing the payment of child support shall be entered utilizing the AOC-152, Uniform Child Support Order and/or Wage/Income Withholding Order which is the form pre-scribed by the Administrative Office of the Courts pursuant to KRS 205.713 and KRS 205.802. This form shall be located on the Court of Justice website and shall include the following:

(a) The amount and frequency of the support payments;

(b) That the payment shall be paid(i) By wage/income withholding, to begin immediately; or, (ii) If wage/income withholding is not ordered to begin immediately for good cause shown, as ordered by the court and as directed in KRS 403.215; or, (iii) According to a written agreement reached between both parties which provides for an alternative arrangement to wage/income withholding.

(c) In non-IV-D cases the federal Income Withholding for Support (IWO) form OMB 0970-0154, and in IV-D cases the state CS-89, shall be utilized to notify the employer/income withholder of any wage/income withholding ordered by the court.

(d) The party responsible for medical and other ordered expenses of the child(ren); and,

(e) The social security numbers of the parties and child(ren), CR 7.03 notwithstanding.

(3) Notice of any wage/income withholding shall be served upon the employer and the employee as follows:

(a) In non-IV-D cases, the OMB 0970-0154 shall be accom-panied by the underlying AOC-152.

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(b) In IV-D cases, the CS-89 shall be utilized.

(4) Motions to Establish or Modify Child Support

(a) A motion to establish or modify child support shall be accompanied by the following:

(i) A completed child support guidelines worksheet with movant’s portion completed. (ii) Copies of the movant’s last three pay stubs or, if movant is self-employed, proof of the movant’s current income. (iii) The most recently filed federal and state income tax returns. (iv) Verification of the cost of health insurance for the child(ren) only. (v) A notice of hearing accompanying a motion for child support which shall contain the following statement: “You must file with the Court, at least 24 hours prior to the time of the hearing, a completed child support guidelines worksheet and copies of your last three pay stubs or, if self-employed, proof of your current income and the most current federal and state tax returns.”

(b) A respondent shall file the following information with the court and serve the movant at least 24 hours prior to the hearing:

(i) A completed child support worksheet.(ii) Copies of the respondent’s last three pay stubs or, if self-employed, proof of current income.(iii) The most recently filed federal and state income tax returns.(iv) Verification of the cost of health insurance for the child(ren) only.

(c) In addition, in cases that are Title IV-D cases, counsel shall certify, prior to the hearing being held, that reasonable efforts were made to resolve all the issues in dispute.

IV. DOMESTIC VIOLENCE AND INTERPERSONAL PROTECTIVE ORDERS

FCRPP 10 Issuance of Summons

(1) If an emergency protective order or temporary interpersonal protective order is not issued due to an insufficient relationship as identified in KRS 403.720(2) or (5), or KRS 456.030(1) or for failure to state an act or threat of domestic violence, dating vio-lence and abuse, stalking or sexual assault between the parties, the finding of the insufficient relationship or failure to state an act or threat of domestic violence, dating violence and abuse, stalking or sexual assault shall be noted on the petition by the judge, and no summons shall be issued.

(2) If the relationship is one recognized under KRS 403.720(2) or (5) and there is a finding of domestic violence and abuse, dating violence and abuse, stalking or sexual assault and a finding of

immediate and present danger, an emergency protective order or temporary interpersonal protective order shall be issued.

(3) If there is no finding of an immediate and present danger of domestic violence and abuse, dating violence and abuse, stalking or sexual assault when the relationship is one recognized under KRS 403.720(2) or (5), or KRS 456.030(1) but the court determines that domestic violence and abuse, dating violence and abuse, stalking or sexual assault exists, a summons shall be issued and a hearing shall be held to determine if a domestic violence order or interpersonal protective order should be issued. Any finding at the hearing shall constitute an appealable order.

(4) If a summons is issued for a minor child pursuant to KRS 403.730, service shall be in the manner prescribed in CR 4.04(3). If the minor child has no guardian or committee, a guardian ad litem shall be appointed pursuant to CR 17.03(2) and KRS 387.305.

COMMENTARY

This Rule is about civil protection orders and not about the automatic IPO issued post-conviction in criminal cases. FCRPP 11 Contempt Proceedings

(1) No petitioner shall be held in contempt for failure to appear at a domestic violence or interpersonal protective order hearing or for failing to prosecute a civil or criminal contempt violation of a protective order except for good cause shown on the record. Failure to appear may result in denial of the petition.

(2) When the court conducts contempt proceedings in domestic violence or interpersonal protective order actions, the party subject to contempt shall be represented by counsel, unless waived, and an attorney shall be appointed by the court if the party qualifies as an indigent.

FCRPP 12 Reissuance of Emergency Protective Order or Temporary Interpersonal Protective Order Upon Transfer to Another Circuit

When the local protective order protocol requires that a case be transferred to another circuit due to a pending dissolution case, any active emergency protective order or active temporary interpersonal protective order shall continue and the summons shall be re-issued by the initiating court, pursuant to KRS 403.740(4), for a period not to exceed 14 days if service has not been made on the adverse party by the date of transfer, or as the court determines is necessary for the protection of the petitioner. Thereafter, reissuance of the summons shall occur as needed in the court of transfer.

V. PATERNITY ACTIONS

FCRPP 13 Genetic Testing

When paternity is an issue in any action, the court may order


the mother, child and the putative father to submit to genetic tests as follows:

(1) In a case in which paternity is denied or in which the parties request genetic testing, on motion made by any party, a pretrial order shall be entered by the court forthwith which requires both parties and the child to submit to genetic tests in accordance with KRS 406.081 or 406.091 unless an agreed order is entered.

(2) Within 30 days of receipt of the genetic report, the petitioner shall file the original report with the court in support of a motion to dismiss, a motion for trial or a motion for summary judgment. This does not preclude prehearing conferencing in the interim which may extend the 30 days by agreement or resolve the issues.

(3) In those cases in which the genetic test report excludes the defendant from the paternity of the child, the court, after the expiration of 30 days from the date of the filing of the exclusionary report, shall enter an order of dismissal in favor of the defendant unless a motion for additional testing pursuant to KRS 406.091 is filed prior to the expiration of the 30 days.

VI. POST-DECREE AND POST-FINAL ORDER

FCRPP 14 Post-Decree and Post-Final Order Service

All motions filed more than six months after the entry of a Decree of Dissolution or a final order shall be served on the party at the last known address and upon the attorney of record, if any, by ordinary mail.

VII. DEPENDENCY, NEGLECT OR ABUSE

FCRPP 15 Orders in Dependency, Neglect or Abuse Actions

To the extent not otherwise specified, any order entered in a dependency or neglect or abuse action shall be on the appropriate Administrative Office of the Courts forms. FCRPP 16 Notice in Dependency, Neglect or Abuse Actions

(1) Judicial Notice. In making any determinations with regard to a child in a dependency or neglect or abuse action, the court may consider the findings of fact and court orders from any other court proceeding in any other court file involving the child or the child’s parents or the person exercising custodial control or supervision, if the court is aware of such proceedings. To the extent that the court relies on such, the court shall include a copy of that material in the record.

(2) Notice and Opportunity to be Heard. Prior to any review or permanency hearing, the state child welfare agency shall inform the court of the name and address of the foster parents, pre-adoptive parents and any relatives who are providing care for the child. The clerk shall provide notice of any review or permanency hearing to all parties and to the child’s foster parents, pre-adoptive parents,

and any relatives who are providing care for the child. The foster parents, pre-adoptive parents or any relative who is providing care for the child shall have an opportunity to be heard and may be subject to cross examination but shall not be designated as a party to such a proceeding solely on the basis of such notice and right to be heard. If the parent/custodian against whom a petition has been filed is present when the permanent custody hearing is set, that parent shall be given written notice while in court, which is sufficient notice under this rule. FCRPP 17 Service

(1) A copy of the petition and summons, and an emergency custody order, if any, shall be served upon parents or persons exer-cising custodial control or supervision or who have been awarded legal custody by a court or claims a right to legal custody under the law of this state. It may be served by any person authorized to serve process except the state child protective service agency.

(2) A notice and statement of the rights and a blank affida-vit of indigency, which contain the contents of the official AOC forms, AOC-DNA-2.2, Notice of Emergency Removal, and AOC-DNA-11, Financial Statement, Affidavit of Indigence, Request for Counsel and Order, shall be served with the emergency custody order. The official AOC forms are available for use in compliance with this rule.


If a permanent custody motion is filed within a Dependency, Neglect and Abuse (DNA) action pursuant to KRS 620.027, the movant shall ensure that personal service of the permanent cus-tody motion has been perfected upon both parents and any other legal custodian, except as otherwise directed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Personal service shall be perfected in accordance with the Kentucky Rules of Civil Procedure, CR 4, et. seq. If said service has not been properly perfected in the DNA action, the court should deny the motion and require the movant to file a proper petition for child custody pursuant to KRS Chapter 403.

FCRPP 18 Emergency Custody Orders in Dependency, Neglect or Abuse Actions

(1) Any request for an emergency custody order in a dependency, neglect or abuse case shall be in writing and shall be accompa-nied by an affidavit for emergency custody order which contains the contents of the official AOC form, AOC-DNA-2.1, Affidavit for Emergency Custody Order, and which alleges dependency, or abuse or neglect. The affidavit shall be presented to the judge with any other documentation presented at the time of the filing of the request. The official AOC form may be utilized for compliance with this rule.

(2) The person seeking the emergency custody order shall

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indicate on the affidavit whether there are other proceedings pending, or any orders of custody, related to the child in the Com-monwealth or any other state.

(3) The emergency custody order shall contain the contents of the official AOC form, AOC-DNA-2, Emergency Custody Order, which is available for use in compliance with this rule. In no event shall a child be removed pursuant to KRS 620.060 only on a verbal order.

(a) Upon issuance of an emergency custody order by the judge, the person seeking the emergency custody order shall file the emergency custody order and the affidavit with the clerk no later than the close of the next work day and the clerk shall assign a case number.

(b) If not filed with the emergency custody order, a petition shall be filed with the clerk within 72 hours of taking the child into custody in the same case file as the emergency custody order and affidavit.

(c) The court may, after issuing an emergency custody order, transfer the case for forum non conveniens to the county where the dependency, abuse or neglect is alleged to have occurred and shall notify the court to which the case is being transferred, upon issuance of the transfer order.

FCRPP 19 Petition

(1) A petition pursuant to KRS Chapter 620 shall contain the contents of the official AOC form, AOC-DNA-1, Dependency Neglect or Abuse Petition, which is available for use in compliance with this rule. In proceedings involving siblings, separate petitions shall be filed for each child and individual case numbers shall be assigned by the clerk of the court, but all siblings’ files shall be assigned to the same judge.

(2) When a petition is filed a copy shall be mailed or provided by the clerk to the parents or other person exercising custodial control or supervision, the state child protective service agency, the county attorney, any guardian ad litem, and any counsel of record, no later than the business day following the filing of the petition. FCRPP 20 Notice of Temporary Removal Hearing

(1) The clerk shall provide notification of the temporary removal hearing to the parents or other person exercising custodial control or supervision, county attorney, the state child protective service agency, any guardian ad litem (or by statute, counsel for the child), and any counsel of record.

(2) The order entered at the hearing shall contain the contents of the official AOC form, AOC-DNA-3, Order-Temporary Removal Hearing, which is available for use in compliance with this rule.

FCRPP 21 Orders from Hearings

(1) Adjudication Hearing. The order entered at the hearing shall contain the contents of the official AOC form, AOC-DNA-4, Order-Adjudication Hearing, which is available for use in compli-ance with this rule.

(2) Disposition Hearing. The order entered at the hearing shall contain the contents of the official AOC form, AOC-DNA-5, Order-Disposition Hearing, which is available for use in compli-ance with this rule.

(3) Permanency Hearing. The order entered at the hearing shall contain the contents of the official AOC form, AOC-DNA-6, Order-Disposition Hearing, which is available for use in compli-ance with this rule.

(4) Permanent Custody Order. Any order of permanent cus-tody entered pursuant to KRS 620.027 shall contain the contents of the official AOC form, AOC-DNA-9, Order-Permanent Custody, which is available for use in compliance with this rule.

(5) Verbal Approval or Stamped Signatures. No order in a dependency, neglect and abuse action may be entered on verbal approval or stamped signature.


Faxed or scanned original signatures and encrypted or otherwise secure digital signatures authorized by the Supreme Court have been deemed to be acceptable methods of signature for purposes of these Rules.

FCRPP 22 Continuances

(1) If the court grants an extension of time or a continuance for any hearing other than the annual permanency hearing, it shall make written or oral findings on the record that the continuance is necessary in the best interest of the child, for discovery or pre-sentation of evidence or witnesses, to protect the rights of a party, or for other good cause shown.

(2) The annual permanency review hearing shall be conducted at least annually and shall not be continued beyond 12 months from the placement of the child in foster care for any reason, including good cause.


Pursuant to 45 C.F.R. 1356.21(b)(2)(i), the state child wel-fare agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that is in effect (whether the plan is reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement in another


planned permanent living arrangement) within 12 months of the date the child is considered to have entered foster care and at least every 12 months thereafter while the child is in foster care. Under 45 C.F.R. 1356.21(b)(2)(ii), if such a judicial determination is not made, the child becomes ineligible under title IV-E at the end of the month in which the judicial determination was required to have been made, and remains ineligible until such a determination is made.FCRPP 23 Dismissal

Once filed, a petition shall be dismissed only upon court order. FCRPP 24 Transfer

Cases shall not be transferred from one county to another prior to adjudication except on a specific finding of improper venue or forum nonconveniens. FCRPP 25 Appearances

Any attorney appearing on behalf of a party in a dependency, neglect or abuse action shall file a written entry of appearance unless an order appointing the attorney as guardian ad litem (or by statute, counsel for the child), or court-appointed counsel has been entered. An attorney shall not withdraw from representation except upon motion to withdraw granted by the court.

FCRPP 26 Records and Transcripts

(1) An electronic or stenographic record of interviews with chil-dren, including a recording of any in-camera proceedings, shall be filed under seal with the clerk and may be made available to the parties or their counsel on motion and written order of the court.

(2) In courts that have more than one county in their jurisdiction any recordings made in a county other than where the action is filed shall be delivered to the clerk of the county where the action is filed by the court ordering the hearing.

FCRPP 27 Reports

Any dispositional report shall be filed, and a copy, electronic or otherwise, provided to the court, the guardian ad litem, pro se litigants, and all counsel of record, three days prior to a dispositional hearing and shall contain the contents of the official AOC form, AOC-DNA-12, Dependency, Neglect or Abuse Dispositional Report, which is available for use in compliance with this rule. FCRPP 28 Case Plan and Case Progress Reports

The court shall require the following to be filed in the court record and provided to all parties:

(1) The out of home case plan;

(2) Any visitation agreement for the case plan or the case per-manency plan; and,

(3) Any prevention plan or safety plan developed by the child protective service agency.

(4) The state child welfare agency shall provide the names and addresses of the child’s foster parents, pre-adoptive parents or rel-atives providing care to the child, court appointed special advocate, and foster care review board member assigned to the case with the case permanency plan or case progress report filed with the court on a form prescribed by the Administrative Office of the Courts.

FCRPP 29 Reviews

(1) Permanency Progress Review. In addition to the annual permanency hearing mandated by KRS 610.125, the court shall conduct a permanency progress review no later than 6 months after a child is placed in foster care, in the home of a non-custodial parent, or other person or agency, when that child was sixteen years of age or younger at the time of the filing of a dependency, neglect or abuse petition.

(2) Independent Living Review. In addition to the perma-nent placement review and the annual permanency hearing, and when the child remains in foster care or committed to the state child welfare agency, the court shall conduct an independent living review at least 6 months prior to the child turning 18 years of age to ensure that training on independent living and other appropriate services have been included in the case plan and are being provided to the child.


With respect to FCRPP 30(1), if a permanent custody motion is filed within a Dependency, Neglect or Abuse (DNA) action pursu-ant to KRS 620.027, the movant shall ensure that personal service (of the DNA action) has been perfected upon both parents and any other legal custodian, except as otherwise directed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Per-sonal service shall be perfected in accordance with the Kentucky Rules of Civil Procedure, CR 4, et. seq. If said service has not been properly perfected in the DNA action, the court should deny the motion and require the movant to file a proper petition for child custody pursuant to KRS Chapter 403.

FCRPP 30 New Action

Any new allegation or request for removal after a child has achieved permanency shall be filed as a new action.

VIII. ADOPTION AND TERMINATION OF

PARENTAL RIGHTS

FCRPP 31 Venue and Petition

(1) Venue. When filed in the same county in which a KRS Chapter 620 proceeding has been held, a proceeding under KRS

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Chapter 625 shall be assigned to the same family court division that heard the KRS Chapter 620 action. Otherwise, venue shall proceed according to KRS 625.050(4).

(2) Petition.

(a) A separate petition shall be filed for each child and individual case numbers shall be assigned by the clerk of the court in proceedings filed pursuant to KRS Chapters 199 and 625, and in the case of siblings, shall be heard by the same judge.

(b) Every petition in an adoption or termination of parental rights action shall include the case number of any underly-ing juvenile case, specifically dependency, neglect or abuse or termination of parental rights cases, and shall include the name of any guardian ad litem (or by statute, counsel for the child) previously appointed.

FCRPP 32 Adoption

(1) No request for final hearing shall be made prior to the filing of the state child protective service agency report pursuant to KRS 199.510.

(2) In the event of an uncontested adoption, a hearing shall be held within 60 days of the filing of a request for a final hearing.

(3) A continuance of any final hearing date shall not be granted except upon good cause shown. Annual permanency review hear-ings shall continue to be held in any dependency, neglect and abuse action as required by FCRPP 22 until finalization of the adoption. FCRPP 33 Involuntary Termination

(1) Immediately upon the filing of any petition for involuntary termination of parental rights, the petitioner shall obtain a pretrial date. In the event the parents are not served prior to the pretrial date, the pretrial date shall be used as a case status review to expe-dite the proceeding.

(2) A continuance of any final hearing date shall not be granted except upon good cause shown. The annual permanency review hearings shall continue to be held in any dependency, neglect and abuse action as required by FCRPP 22 until permanency is achieved. FCRPP 34 Orders Terminating Parental Rights

The clerk of the court shall send two certified copies of the order terminating parental rights to the state child protective agency. The prospective adoptive parent or his or her attorney, if any, may obtain a certified copy of the order terminating parental rights from the state child protective agency to attach to the adoption petition.

FCRPP 35 Post-Termination of Parental Rights Review

If an order terminating parental rights is entered, a copy of the order shall also be certified to the record in the underlying dependency, neglect and abuse case which shall be identified in the order. The clerk of the court in the underlying dependency, neglect and abuse case shall docket the matter for a review hearing within 90 days from the date of the entry of the order of termination of parental rights and shall docket the matter as directed by the court at least annually thereafter until permanency is achieved.

IX. APPENDIX A

Appendix A Model Time-Sharing Visitation Guidelines

Model Time-Sharing/Visitation Guidelines

The following schedules are suggested as guidelines for the par-ents and the court in establishing time-sharing/visitation schedules. Each case will present unique facts or circumstances which shall be considered by the court in establishing a time-sharing/visitation schedule and the final schedule established by the court or agreed to by the parents may or may not be what these guidelines suggest.

1. The time-sharing/visitation schedule set by the court for holidays, school breaks and summer break should control over regularly scheduled time-sharing/visitation time, even if this allows successive time-sharing/visitation periods.

2. The parent exercising time-sharing/visitation should be responsible for timely picking up the child(ren) at the begin-ning of the time-sharing/visitation period and returning the child(ren) in a timely manner at the end of the time-sharing/visitation period.

3. Times in a time-sharing/visitation schedule should be set in the time zone where the child primarily resides.

4. For time-sharing/visitation times pertaining to school holi-days, whether in a formal school or home-schooled, the school holidays where the child(ren) primarily resides should apply.

5. Each parent should provide to the other parent contact numbers and addresses (unless a domestic violence order is in effect) where the child(ren) can be located during their sched-uled time-sharing/visitation time.

6. The parent exercising time-sharing/visitation should be given a minimum of every other weekend as time-sharing/visitation time with the child(ren) and one midweek overnight time-shar-ing/visitation. The parent having such time-sharing/visitation should be responsible for delivering the child(ren) to school, child care, or the other parent’s home as specifically ordered by the court or agreed to by the parents.


7. Holidays.

a. If a holiday is celebrated on a Monday following a par-ent’s regularly scheduled time-sharing/visitation, then that parent should be permitted to extend parenting time until 6:00 p.m. on the holiday, unless the parents agree otherwise.

b. Other holidays.

(i) Parent exercising time-sharing/visitation.

1) During the first full year after divorce/custody proceedings have been filed, the non-residential parent should have time-sharing/visitation sched-uled as follows:

a) New Year’s Day and July 4th from 8:00 a.m. until 6:00 p.m. b) Thanksgiving, beginning at 6:00 p.m. the day school ends until 3:00 p.m. Thanksgiv-ing Day. c) Christmas/Winter Break, beginning at 6:00 p.m. the day school ends until noon on December 25. d) Holidays not listed that are of special interest to the family should be assigned to the non-residential parent in time amounts similar to those in a), b) and c) above.

2) Holiday time not scheduled above to the parent exercising time-sharing/visitation should be with the other parent. 3) Mother’s Day and Father’s Day, regardless of any conflict with the above proposed schedule, should be spent with the appropriate parent from 8:00 a.m. until 6:00 p.m. 4) Fall Break or Spring Break, as allowed by the child(ren)’s school calendar, should be scheduled for the parent with whom the child(ren) primarily resides in the first full year after the divorce/cus-tody proceedings are filed from 6:00 p.m. the day school ends until 6:00 p.m. the following Friday. If school breaks are longer than one week due to the school schedule, the parent with whom the child(ren) primarily resides should be scheduled for the first half of the break and the other parent should be scheduled for the last half. 5) Summer Break should be scheduled to allow the parent exercising time-sharing/visitation a minimum of two periods of two consecutive weeks during the Summer Break. Each parent should provide the time periods he or she desires to the other parent before the end of the school year, or at least 60 days in advance of the requested time. If a child(ren) must attend summer school in order to pass to the next grade, summer time-sharing/visitation should not prevent school time. 6) Birthdays: Unless the birthday falls on a

regularly scheduled time-sharing/visitation day, the parent exercising time-sharing/visitation should be scheduled for birthday time from 5:00 p.m. until 8:00 p.m. If it is a regular day of the parent exercising time-sharing/visitation where the child(ren) does not primarily reside, the other parent should have birthday time from 5:00 p.m. until 8:00 p.m.

(ii) Alternating years: For each year thereafter, the time-sharing/visitation set out above should alternate between the parent with whom the child(ren) primarily resides and the parent exercising time-sharing/visitation.

8. Waiting/Tardiness/Cancellations.

a. In the event either parent will be more than 30 minutes late, due to reasonable unforeseen circumstances, to pick up the child(ren), he or she should provide direct notice to the other parent or a designated third party and make suitable arrangements for exchange of the child(ren).

b. If time-sharing/visitation is missed through no fault of the parent, and reasonable notice has been given, that time should be made up, if reasonable to do so.

c. If the child(ren) is ill, the parent who has the child should give 24-hour notice, if possible, to allow for appropriate plans to be made.

9. Transportation: The parents should transport the child(ren) in a safe manner, which includes utilizing the appropriate child restraint systems and not driving under the influence of intoxicants.

All sitting. All concur.

ENTERED: October ______, 2017.

FAMILY COURT RULES

53BENCH & BAR |

Announcement:The Kentucky Cabinet for Health and Family Services is accepting applications for persons willing to serve as a chairperson of a Med-ical Review Panel pursuant to KRS 216C. Eligible applicants must be licensed to practice law in the Commonwealth of Kentucky.

Chairpersons will be selected on a case by case basis. This is a great opportunity to hone your management and mediation skills. Reimbursement shall be in accordance with KRS 216C, Section 23(2).

To apply, please complete the application found at mrp.ky.gov and sumbit to [email protected]. The Cabinet for Health and Family Services will maintain a list of all applicants by Supreme Court district for use pursuant to KRS 216C, Section 8(2).

By Mail: CHFS, ATTN: MRP 275 East Main Street, 5W-A (MRP) Frankfort, Kentucky 40621

Electronically: [email protected]

CHECK OUT THEKENTUCKY

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The Board of Governors met on Tuesday, June 20, 2017. Offi-cers and Bar Governors in attendance were, President M. Sullivan; President-Elect W. Garmer; Vice President D. Bal-

lantine; Immediate Past President D. Farnsley; and Young Lawyers Division Chair R. Schafer. Bar Governors 1st District – M. Pitman, F. Schrock; 2nd District – J. Meyer, T. Kerrick, 3rd District – H. Mann; 4th District – A. Cubbage, B. Simpson; 5th District – M. Barfield and E. O’Brien; 6th District – G. Sergent, S. Smith and 7th District – E. McGuire, J. Vincent. Bar Governor M. Dalton was absent.

Also present was incoming Young Lawyers Division Chair-Elect E. Weihe, Bar Governors 1st District – V. Sims, 6th District T. McMurtry and 7th District R. Blackburn.

In Executive Session, the Board considered one (1) default disci-plinary case. Judy McBrayer Campbell, Frankfort, Brenda Hart of Louisville, Dottye Moore of Elizabethtown and Dr. Leon Mooneyhan of Shelbyville non-lawyer members serving on the Board pursuant to SCR 3.375, participated in the deliberations.

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

• Heard a status report from the KYLAP Task Force, Rules Committee and Task Force on Judicial Evaluations.

• President-Elect William Garmer reported that the 2017 Summer Meeting would be held at the Hyatt Regency Hotel in Lexington on July 27-29.

• Annual Convention Planning Committee Chair J.D. Meyer reported that 1,332 had pre-registered to attend the convention.

• Young Lawyers Division (YLD) Chair Rebecca Scha-fer reported that results of the Food Frenzy, which raised the equivalent of a little over 350,000 pounds of food – approximately $90,000. The winners will be honored at the YLD Luncheon on Thursday of convention week. Schafer reported that the Corpo-rate Legal Department of GE Appliances won the Attorney General’s Cup after raising almost the equiv-alent of 33,000 pounds of food, Bryant Law Center, a small firm of only six attorneys from Paducah, came in a very close second and only 150 pounds shy of tying with GE for an average of 5,537 pounds per attorney raised. Schafer reported that the following YLD annual award recipients will be recognized at the Luncheon: Outstanding Young Lawyer - J. Tanner

Watkins; Service to Young Lawyers Award – Wm. T. Robinson, III (posthumously) and Young Lawyers Service to the Community – Acena J. Beck. Schafer also reported that the Nathaniel R. Harper Award will be given to young lawyer Roula Allouch during the KBA Membership Luncheon. The Nathaniel R. Harper Award seeks to recognize those individuals striving to promote equality and inclusion of underrep-resented groups within the Bar and the legal profession at large.

• President Sullivan reported on the status of the Kentucky Commission on the Future of the Legal Profession. The Commission was established with guidance from Chief Justice John D. Minton Jr. to study and keep abreast of the many issues changing within and affecting the current and future practice of law in Kentucky. Since forming several months ago, the Committee has broken up into four subcommittees to begin research and work on these various issues. The four subcommittees are as follows: Access to Legal Services, Technology and its Impact on the Practice of Law, Transitions within the Legal Profession and Sustainability of Legal Practice. Once research is com-plete the Commission will issue a report to benefit Kentucky attorneys and the general public in regard to the future of the legal profession.

• Approved the reappointment of Douglass Farnsley of Louisville and the appointment of Roula Allouch of Covington, as the Kentucky delegates to the ABA House of Delegates for a two year term ending at the conclusion of the 2019 ABA Annual Meeting.

• Approved the reappointment of Robert Thomas Watson of Louisville (4th Supreme Court District) to the Attorneys’ Advertising Commission (AAC) for a second three (3) year term ending on June 30, 2020; appointed Dustin R. Williams of Pikeville (7th Supreme Court District) to a new three (3) year term ending on June 30, 2020 and reappointed Kerry D. Smith of Paducah to serve as chair for another one year term.

• Approved the appointment of Charles E. English, Sr. of Bowling Green to the Clients’ Security Fund Board of Trustees for a three (3) year term ending on June 30, 2020.

• Approved the following appointments to the Kentucky

summary of minutes kba board ofGOVERNORS MEETING

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BAR NEWS

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Bar Foundation Board of Directors: 1st Supreme Court District – appointed both B. Todd Wetzel of Princeton and H. Douglas Willen of Hopkinsville to complete the reminder of a three (3) year term ending on June 30, 2019 of Cirris E.C.B. Hatfield and W. Douglas Myers; 4th Supreme Court District – reappointed John R. Crockett III and appointed Don Wallace Francis Rodgers for a three (3) year ending on June 30, 2020; 5th Supreme Court District – appointed J. Hadden Dean of Danville to a three (3) year ending on June 30, 2020; 6th Supreme Court District – appointed Emily E. Walters of Florence to a three (3) year ending on June 30, 2020 and 7th Supreme Court District – reappointed Senator Robin L. Webb of Grayson and appointed William J. Baird of Pikeville to a three (3) year ending on June 30, 2020.

• Approved the following names to be recommended to Governor Matt Bevin for consideration of appoint-ment to the Public Advocacy Commission for a four (4) year term: Michael D. Bowling, Margaret E. Keane, and Justice Joseph E. Lambert.

• Approved a Resolution of Renewed Support of the 2011 Report and Recommendations of the KBA Task Force on the Provision and Compensation of Conflict

Counsel for Indigents and a Resolution of Renewed Support of the 2015 Report and Recommendations of the KBA Task Force on the Proper Compensation of Prosecutors and Public Defenders.

• Executive Director John D. Meyers reported that the 2017 Diversity & Inclusion Summit held in April 2017 was very successful with a total attendance of approximately 225 people.

• Approved the proposal from RFH CPA’s of Lexington to conduct the FY 2017-2018 KBA audit.

• Approved the recommendation of the Bar Center Board of Trustees to accept the bid of Meyer Mid-west of Frankfort to perform the Bar Center restroom renovations.

• Approved the list of the 2017 Honorary Members, pursuant to SCR 3.030(3) and Bylaw Section 2, who reached the age of 75 or have been admitted to the practice of law for 50 years.

• Approved the Bylaw amendments of the Public Inter-est Law Section.

• Meyers reported that the CLE Department is con-tinuing to work on their update and have a tentative go-live date set for September.


summary of minutes kba board ofGOVERNORS MEETING

J U L Y 2 8 - 2 9 , 2 0 1 7

The Board of Governors met on Friday and Saturday, July 28-29, 2017. Officers and Bar Governors in attendance were, President W. Garmer; President-Elect D. Ballantine; Vice Pres-

ident S. Smith; Immediate Past President M. Sullivan; and Young Lawyers Division Chair E. Weihe. Bar Governors 1st District – V. Sims; 2nd District – J. Meyer, T. Kerrick, 3rd District – M. Dalton, H. Mann; 4th District – A. Cubbage, B. Simpson; 5th District – M. Barfield; 6th District – T. Murtry; and 7th District – R. Blackburn, J. Vincent. The following Bar Governors absent were: E. O’Brien, F. Schrock and G. Sergent.

In Executive Session, the Board considered thirteen (13) default disciplinary cases, involving five attorneys and two (2) restoration cases. Judy McBrayer Campbell, Frankfort, Dottye Moore of Eliz-abethtown and Dr. Leon Mooneyhan of Shelbyville non-lawyer members serving on the Board pursuant to SCR 3.375, participated in the deliberations.

In Regular Session, the Board of Governors conducted the following business:

• Approved a proposed Unauthorized Practice of Law opinion regard-ing whether or not an insurance or claims adjuster who is an employee of a Workers’ Compensation insurer, its third-party administrator or a self-insured employer may complete and file on behalf of the insured Form 110 Settlement Agreement with the Department of Workers’ Claims.

• Approved a proposed Ethics Opinion on limited scope representation.

• Robert Young, chair of the KBA Task Force on Law Practice, made a pre-sentation on, “Creating and Growing Your Practice.”

• Justice Michelle Keller made a pre-sentation regarding the future of the Access to Justice Commission. The Board approved supporting the Access to Justice’s effort in estab-lishing a Commission with seed money for initial operational costs on a one-time basis in the form of a grant deposited within a desig-nated account, originating from the

Donated Legal Services Fund in the amount of $125,000 contingent upon the activation of the Commission as a legal entity.

• KBA Interim Chief Bar Counsel Jane Herrick presented the annual Bar Counsel Disciplinary Statistical Report.

• KBA Director of Accounting/Membership Michele Pogrotsky presented the year-end financial summary.

• Young Lawyers Division (YLD) Chair Eric Weihe reported the YLD Executive Committee recently held their summer meeting and was happy to report they had 28 out of 32 members in attendance. Weihe advised the Board that YLD programming is ramping up, with plans to host activities such as: Legal Aid University, Diver-sity Pipeline/Why Choose Law program, The Road Less Travelled program presenting alternative career paths for those with law degrees to be presented at law schools and the Legal Food Frenzy. Last year the YLD had

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57BENCH & BAR |

approximately 1,412 active members and Weihe encour-aged members of the Board to spread the word about the YLD to young lawyers across the state. The second annual Legal Food Frenzy will begin in March of 2018 and the goal is to raise $100,000 or 800,000 pounds of food. Last year 128 legal organizations signed up to participate in the Legal Food Frenzy; YLD is working hard to increase this number during the upcoming year. The Legal Food Frenzy Kickoff Event will take place January 17 at the Capitol. The campaign will run March 15 – April 2. Weihe reminded the Board that in May of 2018 the American Bar Association’s annual YLD Spring Conference will be held in Louisville.

• President-Elect Douglas C. Ballantine reviewed with the Board that it is his responsibility to chair the FY 2018-2019 Budget & Finance Committee. Ballantine reported that the committee has been formed and their first meeting will be scheduled for early September.

• Approved the appointment of Amanda G. Main of Lou-isville to the Attorneys’ Advertising Commission in the 4th Supreme Court District for a three (3) year term ending on June 30, 2020.

• President Garmer report that he will serve on the Ken-tucky Bar Foundation (KBF) Board in his capacity as KBA president and R. Michael Sullivan will also serve

on the KBF Board in his capacity as KBA immediate past president.

• President Garmer reported that the will serve on the IOLTA Board of Trustees in his capacity as KBA president.

• Approved the appointment of Charles E. English, Jr., of Bowling Green, John G. Prather, Jr., of Somerset and Marcia Milby Ridings of London to serve on the Special Conflicts Committee for a one year term ending on June 30, 2018.

• President Garmer plans to begin efforts to support the funding of the court system through legislative outreach beginning early next year. William E. Johnson and John F. Vincent have agreed to co-chair the committee.

• President Garmer gave a brief update on the upcoming 2018 Annual Convention. The Convention will take place June 13–15 in Lexington at the Lexington Con-vention Center. The chair of the Planning Committee is Robert L. Elliott and Judge Sheila Isaac is chairing the CLE Planning Committee.

• President Garmer advised that the KLU Programs will begin in September and he plans to host receptions the night before each KLU to continue to have the oppor-tunity to meet with the local bar leaders, judiciary and

past KBA leaders.• Executive Director John Meyers re-

ported that the 2017 Annual Conven- tion held in Owensboro was a suc-cess and exceeded all expectations.

• Meyers provided an update on the IT project.

• Meyers provided an update on the Bar Center restroom renovations.

• Approved ratifying the vote to select Steven C. Call of Campbellsville and Edward G. Goatley of Spring-field as the two Board nominees for the Judicial Nominating Commis-sion Special Election for the 11th Circuit.

• Approved the Bylaw revisions of the Elder Law Committee.

Do you have a matter to discuss with the KBA’s Board of Governors? Board meetings are

scheduled on: January 19-20, 2018 March 16-17, 2018

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

or Melissa Blackwell at (502) 564-3795.

TO KBA MEMBERS


PUBLICATION TITLE: B&B-Bench&Bar. PUBLICATION NUMBER:1521-6497.FILING DATE:September 20, 2017.

The B&B-Bench & Bar is published Bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812, (502) 564-3795. Number of issues Published Annually: Six. Annual Subscription Price: $20.00. Contact Person: Shannon H. Roberts. The General Business Office of the Publisher is at the Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812. The Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor are: Publisher, John D. Meyers, Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812; Editor, James P. Dady, Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812; Managing Editor, Shannon H. Roberts, Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812.

The Owner of the publication is the Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812. There are no Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities.

The Tax Status Has Not Changed During Preceding 12 Months.

PUBLICATION TITLE: B&B-Bench & BarISSUE DATE FOR CIRCULATION DATA BELOW: July 31, 2017

EXTENT AND NATURE OF CIRCULATIONAverage No. Copies Each Issue During Preceding 12 Months:

a. Total Number of Copies: 18,833b. Paid Circulation (By Mail and Outside the Mail)

(1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 18,660

(2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 0

(3) Paid Distribution Outside the Mail Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0

(4) Paid Distribution by Other Classes of Mail Through the USPS: 0

c. Total Paid Distribution: 18,660d. Free or Nominal Rate Distribution (By Mail and Outside

the Mail)(1) Free or Nominal Rate Outside-County Copies included

on PS Form 3541: 0(2) Free or Nominal Rate In-County Copies included on

PS Form 3541: 0

Statement of Ownership, Management, and Circulation (3) Free or Nominal Rate Copies Mailed at Other Classes

Through the USPS: 14(4) Free or Nominal Rate Distribution Outside the Mail:

66e. Total Free or Nominal Rate Distribution: 80f. Total Distribution: 18,740g. Copies not Distributed: 93h. Total: 18,833i. Percent Paid: 99%

NO. COPIES OF SINGLE ISSUE PUBLISHED NEAREST TO FILING DATEa. Total Number of Copies: 18,800b. Paid Circulation (By Mail and Outside the Mail)

(1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 18,660

(2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 0

(3) Paid Distribution Outside the Mail Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0

(4) Paid Distribution by Other Classes of Mail Through the USPS: 0

c. Total Paid Distribution: 18,660d. Free or Nominal Rate Distribution (By Mail and Outside the Mail)

(1) Free or Nominal Rate Outside-County Copies included on PS Form 3541: 0

(2) Free or Nominal Rate In-County Copies included on PS Form 3541: 0

(3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 21

(4) Free or Nominal Rate Distribution Outside the Mail: 55e. Total Free or Nominal Rate Distribution: 76f. Total Distribution: 18,736g. Copies not Distributed: 64h. Total: 18,800i. Percent Paid: 99%

If you are claiming electronic copies, go to line 16 on page 3. If you are not claiming electronic copies, skip to line 17 on page 3.

PUBLICATION OF STATEMENT OF OWNERSHIP If the publication is a general publication, publication of this state-ment is required. Will be printed in the November 29, 2017 issue of this publication.

I certify that all information furnished is true and complete. I understand that anyone who furnishes false or misleading informa-tion on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).

John D. Meyers, Publisher, September 20, 2017

UNITED STATES POSTAL SERVICEBAR NEWS


KBA President Bill Garmer reviews the list of names before swearing-in

members from District Five.

Nealy Williams of Lexington and Alison Zeitlin celebrate at the Capitol before they are sworn-in as new members of the Kentucky Bar Association.

the kentucky bar associationCONGRATULATES

ITS NEWEST MEMBERSNew attorneys received their oaths of office on Monday, October 23, in the chamber of the Supreme Court of Kentucky in the state Capitol in Frankfort. The KBA continued its tradition of honoring its newest members, their families and friends with a reception in their honor throughout the day at the Administrative Office of the Courts. A total of 197 new attorneys were recommended for admittance to the practice of law following the July 2017 bar examination.

NEW MEMBERSWEARING-IN

CEREMONYH E L D O N O C T O B E R 2 3

BAR NEWS

61BENCH & BAR |

KBA Publications & Program Coordinator Sonja Blackburn discusses the January 2018 New Lawyer Program with recent admittee James Bobbitt of Louisville.

From left to right, Dr. Ted Forrest, Millie Forrest, Dora Forrest and new attorney Mason Forrest enjoy the reception at the Administrative Office of the Courts.

Olivia Keller, center, recently participated in the Swearing-In Ceremony held October 23 at the State Capitol. Keller is pictured here with her father, Dr. Jim Keller and her mother, Supreme Court of Kentucky Justice Michelle Keller, as well as her grandfather, Richard Meier and sister Brenna Keller.

CONGRATULATIONSTO ALL NEW MEMBERS

From left to right, KBA Bar Governor John Vincent and his son Luke Vincent, Supreme Court of Kentucky Justice Samuel T. Wright III, Will Ratliff, with his father, James Ratliff. Luke and Will are both University of Kentucky College of Law graduates and received their oaths of office during the Swearing-In Cere-mony. John and James were also University of Kentucky classmates and graduated with the UK Law Class of 1984.


KENTUC

KY

LA

WYE

R ASSISTANCE PROGRAM

FOU

ND

ATION

Contact KYLAP DIRECTOR YVETTE HOURIGAN for more

information about the KYLAP FOUNDATION, INC.,

FORGIVABLE LOAN PROGRAM.

(502) 226-9373 · [email protected]

The Kentucky Bar Association, through the Kentucky Lawyer Assistance Program, is excited to partner with an employee assistance program in Louisville, Ky., to offer an opportunity for mental health support to Kentucky’s lawyers and judges. All of the assistance remains COMPLETELY CONFIDENTIAL, pur-suant to S.C.R. 3.990. Services became available in October 2017.

This new partnership will provide additional mental health support for Kentucky’s lawyers and judges. The employee assistance program will offer CONFIDENTIAL phone assistance after hours and on weekends. Simply call the KYLAP office anytime, night or day, on our NEW DIRECT PHONE NUMBER—no opera-tors required—and after hours you will be directly connected to our employee assistance program.

OUR NEW DIRECT NUMBER IS (502) 226-9373.

You may also continue to call through the main switchboard at the Kentucky Bar Association at (502) 564-3795, ext. 266. Someone will be available to answer your call 24 hours a day, 7 days a week.

If you need immediate care, our employee assistance program will connect you to one of hundreds of mental health pro-viders all across the state (and even across the country), and you will have an appointment in your area (or in the area you choose) in as little as 24 hours, but no more than 48 hours from the time of your call. The provider you are referred to will be a licensed and/or certified professional, depending on the cre-dentialing. If you have insurance or would like to pay privately, that will be accepted (according to the provider’s guidelines). If you are unable to pay and you meet the income criteria, you will receive up to four (4) clinical sessions at no charge to you. The Kentucky Bar Association and KYLAP are providing this service to KBA members free of charge, when income criteria are met. If you need additional services and are unable to pay for those, additional assistance may be available through the KYLAP Foundation, www.kylap.org/foundation.

At the Kentucky Bar Association and the Kentucky Lawyer Assis-tance Program, we recognize that lawyers and judges are suffering from undiagnosed mental health issues, including depression and severe and chronic stress and anxiety, at a rate far higher than the general population. We understand that good mental health and wellness is essential for the sustainability of our profession. We are committed to offering this service to you to help you, or those you care about, address mental health issues before anyone reaches a crisis in either their life or their career.

The Kentucky Lawyer Assistance Program extends its sincerest thanks to the Kentucky Bar Association Executive Director John Meyers, Board of Governors President Bill Garmer, KYLAP Task Force Chair Tom Kerrick, and the entire Board of Governors for their assistance and support in making this opportunity a reality.

FOR MORE INFORMATION ABOUT THIS SERVICE, CALL KYLAP OR CHECK OUT OUR

WEBSITE AT WWW.KYLAP.ORG.

KYLAP

63BENCH & BAR |

The KYLAP Foundation asks you to consider making your end of year charitable con-tributions to the KYLAP Foundation, Inc., a 501(c)(3) non-profit Kentucky foundation. Your gift will allow us the privilege of granting monetary assistance, by way of a forgiv-able loan program, to attorneys who are struggling with mental health issues and who are without the financial resources to obtain the help they need.

In the past year, donations have assisted individuals obtain inpatient treatment at long-term drug/alcohol rehabilitation facilities and outpatient treatment. Donations have subsidized the cost for attorneys to pay for therapy and doctor visits, and/or psychiat-ric medications necessary to maintain good mental health.

The KYLAP Foundation charges no administrative fees for these services. Every dollar donated by attorneys goes directly to assist attorneys. No staff member or Foundation Trustee receives a salary. Pursuant to Supreme Court Rules, KYLAP does not charge Kentucky lawyers for its services. Every donation goes directly to meet the treatment needs of the lawyers we serve. Your support makes a difference to every lawyer in Kentucky. By protecting our lawyers, we protect our community and we protect our clients. Your support will allow us to continue our work, helping more lawyers than we currently can. Please include the KYLAP Foundation in your year-end giving and help support our mission. You may donate safely online through the PayPal button on the KYLAP website at www.kylap.org. The KYLAP Foundation is a 501(c)(3) corporation and donations are tax deductible consistent with existing tax laws.

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

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

All meetings are open to law students, lawyers and judges who are already involved or who are interested in a 12-step program of recovery, including but not limited to Alcoholics Anonymous, Narcotics Anonymous, Overeaters Anonymous and Al-Anon. Come meet other attorneys and network. All meetings and contacts are confidential. SCR 3.990.

KYLAPK E N T U C K Y L AW Y E R A S S I S TA N C E P R O G R A M

KYLAP HOSTS LAWYERSIN RECOVERY MEETINGS IN

NORTHERN K Y & LEXINGTON

For additional information, please contact us.web: www.kylap.orgcall: (502) 226-9373email: [email protected]

Donate Now!

Over 18,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. Pursuant to rule SCR 3.175, all KBA members must main-tain a current address at which he or she may be communicated, as well as a physical address if your mailing address is a Post Office address. If you move, you must notify the Executive Director of the KBA within 30 days. All roster changes must be in writing and must include your 5-digit KBA member identification number. Members are also required by rule SCR 3.175 to maintain with the Director a valid email address and shall upon change of that address notify the Director within 30 days of the new address. Members who are classified as a “Senior Retired Inactive” or “Disabled Inactive” member are not required to main-tain a valid email address on file. There are several ways to update your address and/or email for your convenience. VISIT our website at https://www.kybar.org to make ONLINE changes or to print an Address Change/Up-date Form –OR– EMAIL the Execu-tive Director via the Membership Department at [email protected] –OR– FAX the Address Change/Update Form obtained from our website or other written notifica-tion to: Executive Director/Mem-bership Department (502) 564-3225 –OR- MAIL the Address Change/Up-date Form obtained from our website or other written notification to:

Kentucky Bar Association, Executive Director

514 W. Main St., Frankfort, KY 40601-1812

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

Address or e-mail changes?!Notify the Kentucky

Bar Association


The law schools will use this

funding to help law students

who are serving as IOLTA Public

Interest Fellows. As fellows,

they will assist public interest

and pro bono attorneys in

providing legal services to

poor and indigent clients and

in carrying out projects for the

administration of justice.

The Supreme Court of Kentucky has approved the 2017-2018 grant recommendations made by the IOLTA (Interest on Lawyers’ Trust Accounts) Board of Trustees for law-related programs in the sum of $455,000.

The funding received by the legal aid programs will be used to further their mission of providing free legal assistance to low-income clients with civil legal problems affecting basic human needs such as access to healthcare, safe and affordable housing, child support, and protection from domestic violence.

northern kentucky university salmon p. chase college of law

university of kentucky college of law

university of louisville louis d. brandeis school of law

THE STATE’S THREE LAW SCHOOLSRECEIVED $10,000 EACH:

Thanks to the many attorneys who participate in the IOLTA program and make these grants possible.

To learn more about the Kentucky IOLTA Fund, visit www.kybarfoundation.org/iolta.

IOLTA: Kentucky Attorneys Provide $455,000 to Legal Aid and Law Schools

appalachian research and defense fund(37 counties in eastern Kentucky)

kentucky legal aid(35 counties in western Kentucky)

legal aid of the bluegrass(33 counties in northern and central Kentucky)

legal aid society(Jefferson and 14 surrounding counties)

FOUR REGIONAL LEGAL AIDPROGRAMS RECEIVED ACOLLECTIVE $425,000:

KBF/IOLTA

65BENCH & BAR |

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The evaluations from our New Lawyer Programs (“NLP”) are both entertaining and disheartening. Interspersed within the positive com-ments and constructive criticism, are such gems as, “the first day may have been less enjoyable than the bar exam,” and “this whole thing was a complete waste of my time.” These comments always cause me to consider the value of the program, which is mandated for all new

attorneys by Supreme Court Rule 3.640, and my stream of con-sciousness inevitably leads me to my own NLP, attended many years ago and with much trepidation and inconvenience.

I was a new health care attorney in Lexington. Each day was a struggle to stay on top of work and expectations. The thought of taking two days out of the office to be in Louisville

for mandatory legal education was certainly not ideal; after all, I did just graduate law school and pass the bar exam. My friend, a fellow Centre and UK Law graduate, and I felt very sorry for ourselves in our broke and overworked condition. We carpooled to Louisville and stayed with another friend to save money. I stayed in the guest room, which evidently belonged to the cat, who sat on my chest and stared at me all night. I tried to shut it out of the room, but I suspect that cats are magical and somewhat evil as it kept showing up. I am VERY allergic to cats. By the time I got up to go to NLP, my eyes were swollen shut and I was wheezing badly. We made a quick pit stop for an inhaler and antihistamines and headed downtown.

We were checked into the program with a thoroughness that was disconcerting and handed a massive tome chockfull of information we were meant to cover in a mere two days. As I mentioned earlier, my NLP was a long time ago and while I do not remember many of the programs, I do remember three with a clarity that I seldom enjoy. First was Barbara Rea, then chief bar counsel with the KBA. She has since passed away, but was a powerful, intimidating force to the new lawyers that year. She patrolled the aisle declaring that bar complaints would be filed against many of us during the course of

CONTINUING LEGAL EDUCATION

• It’s a great opportunity to reconnect with classmates and other KBA members. There is absolutely no substitute for in person communication and networking. It aids in pre-serving professionalism and helps to promote your career and professional community.

Rest assured, the evaluations are studied each year as we make efforts to improve the usefulness and ease of the program. As I review the comments, I often want to tell the writer that I am better for having attended NLP. The lessons learned, the points reiterated, and the connections made or reestablished have been invaluable to me over the years. The New Lawyer Program is impactful. Whether you love it or hate it, you are going to at least accidently learn things that you will revisit down the road.

TAKE MY WORD FOR IT; I’VE BEEN THERE.

our careers and that an inordinate number of us would handle the situation poorly. She then instructed us on how NOT to handle it poorly and how NOT to get a complaint in the first place. After she spoke, I desperately wanted to remain in the latter category. Also memorable was Pete Gullett from Lawyers Mutual Insurance Company telling us not to ignore our “Old Dog” cases. Pete is a fellow mountaineer and knows how to tell a story. He taught us that engagement letters, returning phone calls, and keeping clients informed are more important than we thought, even if we already thought they were important, and that “borrowing” a client’s money is never a good idea. The third was Hoot Ebert, director of the Ken-tucky Lawyer Assistance Program (KYLAP). His candid portrayal of his own struggles with addiction got our attention and he kept it by assuring us that at least one of the attorneys sitting right around us would struggle similarly. The statistics were scary; knowing that KYLAP was there as a resource for us and our colleagues was a comfort. Like Barbara Rea, Hoot has passed away, but his message and work endures.

After two days, we were unleashed once again upon the world. On a very personal note, I clearly remember having a premonition that I would one day work for the KBA. I come from a long line of lawyers and the profession is exceedingly important to me. I aspire to serve it and make it better. It was at my NLP, not in college or law school, that I realized my professional purpose.

So, in my latest reassessment of the program, here are the obvious benefits it offers:

• Learning about the Bar Association and how to become involved with it.

• Being provided with a day of program-ming about the KBA and its resources, attorney professional responsibilities, etc., but also a day of general CLE program-ming designed to aid newer attorneys. Some will find these programs helpful, and some of it will seem like a waste of time; a “waste of time” that nevertheless achieves another positive impact of the New Lawyer Program -- earning enough CLE to not have to worry about CLE for a year or two.

• If your goal is to NOT be more involved with the bar association, then learning when to pay dues, about the mandatory minimum CLE requirement, and what to do if a bar complaint is filed against you will be invaluable.

• Meeting members of the Bar and Judi-ciary, who have volunteered their time to share with you and help you develop your professional identity.

MARY BETH CUTTERDIRECTOR FOR CLE

67BENCH & BAR |


INTERESTED IN ASSISTING WITH A CLE? HAVE IDEAS FOR A PROGRAM?

Contact Mary Beth Cutter, KBA Director for CLE at [email protected], or any member of the Continuing Legal Education Commission.

Jason F. Darnall, ChairFirst District Representative

[email protected]

Graham C. TrimbleThird District Representative

[email protected]

LaToi D. MayoFifth District Representative

[email protected]

Leigh Gross LatherowSeventh District Representative

[email protected]

Frank Hampton Moore IIISecond District [email protected]

J. Tanner WatkinsFourth District Representative

[email protected]

David B. SloanSixth District Representative

[email protected]

Justice Laurance B. VanMeterSupreme Court Liaison

2017-2018 CLECOMMISSION MEMBERS

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

Users can search by program date, name or sponsor for information about future and past events. Program listings include spon-sor contact information, approved CLE and ethics credits, and KBA activity codes for filling out the certificates of attendance.

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

LOOKING FOR UPCOMING KBA ACCREDITED

CLE EVENTS? LOOK NO FURTHER!

CHECK OUT KYBAR.ORG/CLELISTPROGRAMS

The KBA’s next New Lawyer Program — scheduled for Jan. 25 & 26, 2018 — will be held at the Hyatt Regency Louisville, which is located in downtown Louisville.

All newly admitted members of the Kentucky Bar Association are required to complete the New Lawyer Program within 12 months of admission, unless they have practiced in another jurisdiction for a minimum of five years and apply for an exemption.

Note: The program is only offered twice a year, once in the winter and again in June. This is the first offering of the program for the 2018 calendar year. The program is offered free of charge for attorneys seeking to fulfill their New Lawyer Program requirements, pursuant to SCR 3.640.

SAVE THE DATEFor more information

regarding online registration, hotel booking options and the agenda visit the KBA Website at www.kybar.org and select

the “CLE” tab then “New Lawyer Program.”

For questions about the program or your completion deadline, contact Sonja Blackburn at (502) 564-3795, ext. 226 or [email protected].

CONTINUING LEGAL EDUCATION

69BENCH & BAR |


NAME

Robert L. Bertram

Charles Rhoades Burton

Christian J. Camenisch II

Elmer L. Hoehn

Russel C. Jones

David Justice

Calvin Napier Manis

Stephen Allen McCoy

Timothy D. Price

Henry M. Reed II

Jack Edward Ruck

Stewart Ryan Spalding

Winfred Mote Thompson Jr.

DATE DECEASED

August 7, 2017

May 23, 2017

August 12, 2017

September 30, 2017

July 16, 2017

August 23, 2017

August 16, 2017

June 30, 2017

May 27, 2017

July 16, 2017

June 16, 2017

October 4, 2017

June 17, 2017

STATE

KY

FL

KY

IN

KY

KY

KY

KY

KY

KY

KY

KY

FL

CITY

Jamestown

Winter Park

Stanford

Jeffersonville

Owensboro

Ashland

Hazard

Florence

Somerset

Louisville

Louisville

Louisville

Sarasota

ROBERT “BOB” SEAVER, age 80, of Cincinnati, Ohio passed away August 30th, in hospice care with his family by his side. Seaver was a devoted professor of law for more than 20 years at Chase Law School, and published an authoritative book on Ohio Corporate Law. He is frequently recalled by many of his students as one of their most memorable professors and more often than not referred to as their favorite professor or teacher of their entire educational lives. He had a style that was brilliant, invigorating and intimidating, but he was also fascinating, entertaining and witty.

Seaver grew up on a dairy farm in Massachusetts, graduated from Tufts University (1958), served in the United States Marine Corps, and graduated from University of Chicago Law School in 1963. After private law practice as a business lawyer with Taft, Stettinius & Hollister and general counsel for a cor-poration that included handling arbitrations in India, he began his teaching career at Chase. The depth of his business law experience was one of the reasons he was a favorite of his students.

He loved to travel and shared this passion with Elizabeth. They began their travel dreams by get-ting married in Edinburgh, Scotland. They traveled as far north as the North Cape in Norway and as far south as Cape Horn and made frequent trips to Europe. Their travels included watching the sun rise over Machu Picchu, biking along a fjord in Norway, walking part of the Great Wall of China, hiking the Cinque Terra Trail in Italy, cruising the Danube River through Eastern Europe, and cruising from Sydney, Australia to Auckland, New Zealand.

Bob is survived by his wife, Elizabeth A. Horwitz; his 3 children, Kim Seaver ( John Mehnert), Eric (Gwen) Seaver, and Kristen Seaver; and 5 grandchildren.

ROBERT L. BERTRAM, 76, of Jamestown, Ky., passed away Monday, Aug. 7, 2017 at Russell County Hospital after a short illness. Bertram was born in Jamestown on Aug. 27, 1940. He graduated from Russell County High School in 1958. He attended Lindsey Wilson College, Columbia, Ky., and Georgetown College, Georgetown, Ky. He received his law degree from Cumberland School of Law at Samford University in Birmingham, Ala. He was a member of both the Alabama and Kentucky Bar associations. He practiced law in Jamestown until his passing. Bertram served as Russell Springs City Attorney from 1976 to 2005, and Commonwealth’s Attorney for the 40th Judicial District from 1992 to 2000. He was a Special Justice to the Supreme Court in 1990. He loved being an attorney in his hometown. He was married to Glenna Bernard on Sept. 7, 1962 and they were married 54 years. Bertram is survived by four children, daughter Ann Bertram Scott and her husband Jack, son Robert L. Bertram, Jr., and his wife Jill, daughter Rebecca Bertram, and son William G. Bertram and his wife Nicole and by 14 grandchildren. He also leaves behind his partners and staff at Bertram & Wilson, M. Gail Wilson, Derrick G. Helm, Regina McFarland, Denise Bomar and Lora Collins.

The above information for Robert L. Bertram was pulled from a version that appeared in the Lex-ington Herald-Leader on August 9, 2017. To access the full obituary, visit: http://www.legacy.com/obituaries/kentucky/obituary.aspx?n=robert-bertram&pid=186326999&fhid=16743

A s a final tribute, the Bench & Bar publishes brief memorials recognizing KBA members in good standing as space permits and at the discretion of

the editors. Please submit either written information or a copy of an obituary that has been published in a newspaper. Submissions may be edited for space. Memorials should be sent to [email protected].

IN MEMORIAM

71BENCH & BAR |

Have an item for Who, What, When & Where? The Bench & Bar wel-comes brief announcements about member placements, promotions, relocations and honors. Notices are printed at no cost and must be submitted in writing to: Managing Editor, Bench & Bar, 514 West Main Street, Frankfort, KY 40601 or by email to [email protected]. Digital photos must be a minimum of 300 dpi and two (2) inches tall from top of head to shoulders. There is a $10 fee per photograph appearing with announcements. Paid professional announcements are also available. Please make checks payable to the Kentucky Bar Association.

4WWHO, WHAT,

WHEN & WHERE

ON THE MOVEBressler, Amery & Ross, P.C., recently announced that Kevin R. Ghassomian joined the firm as a principal in its estate planning and administration practice. Resident in Bressler’s New York office, Ghassomian focuses his practice on the personal legal needs of business owners, corporate executives, high net worth individuals, and their families. His representation covers all aspects of estate planning, with an emphasis on tax minimization, asset protection, business succession, and philanthropy. Ghassomian received a J.D. from the Vanderbilt University Law School, an LL.M. in Taxation from the University of Miami School of Law, and a B.A. with high honors from the University of Kentucky.

Wyatt, Tarrant & Combs, LLP, welcomes Michelle Browning Coughlin and Daniel P. Reed to its Louisville office. The firm’s new partner, Browning Coughlin, joins Wyatt’s Intel-lectual Property Protection & Litigation Service Team where she will concentrate her practice in the areas of trademark and copyright transactional work. She also advises clients regarding privacy and data security issues, including HIPAA. She is the founder of “MothersEsquire,” an organiza-tion that provides resources and promotes policies and practices that recognize and accommodate attorneys’ family needs, which now has nearly 2000 members nationwide. Browning Coughlin will lead Wyatt’s Wyatt Women’s Network program. She earned her J.D., magna cum laude, from the University of Louisville Brandeis School of Law in 2009. Associate, Reed, joins Wyatt’s Litigation & Dispute Resolution Service Team. His focus will be in the areas of commercial disputes, healthcare litigation and employment matters. Prior to joining Wyatt, Reed was a clerk for the Honorable Edward B. Atkins, United States District Court for the Eastern District of Kentucky. He earned his J.D. in 2016, magna cum laude, from the University of Louisville Brandeis School of Law and his undergraduate political science degree in 2012 from the University of Louisville.

Bingham Greenebaum Doll LLP announces that R. Clay Larkin has joined the firm in the Lexington office. Larkin has rejoined the firm as a partner and member of the corporate services department and energy practice group. Larkin has devoted a significant amount of his practice to the

representation of energy clients in the coal, oil and gas, and elec-tricity generation industries. He also regularly represents clients in environmental litigation and compliance counseling matters under SMCRA, the Clean Water Act, and other environmental statutes, and also has experience in general litigation and transactional mat-ters in the energy and natural resources field. Larkin received his undergraduate degree from Western Kentucky University in 2004. In 2007, he earned his J.D., Order of the Coif, from the University of Kentucky.

Chad McCoy and Sheila Hiestand of McCoy & Hiestand, PLC, announce that Jared Smith, Esq., is joining the firm, and the firm will here-inafter be known as McCoy, Hiestand & Smith, PLC. Smith earned a B.A. from Hanover Col-lege in 2008, with a major in psychology. In 2011, he earned his J.D. from Ohio Northern University Pettit College of Law. Smith currently serves on the board of governors of the Kentucky Justice Association as a district vice president, one of the youngest members to hold the position. He also serves as state delegate to the American Association for Justice and is one of only 16 selectees to participate in AAJ’s Leadership Academy in 2017. McCoy, Hiestand & Smith, LLC, will practice in the areas of personal injury law, medical negligence, prison neglect, and both regional and national catastrophic injury cases.

Gary C. Johnson, P.S.C., announces that Leslie M. Cronen has joined the firm and will con-centrate her practice on mass tort and medical malpractice cases on behalf of injured individuals, as well as other complex litigation matters. She will work out of Louisville for the Pikeville-based firm. Cronen graduated from the University of

WHO, WHAT, WHEN & WHERE


Louisville Brandeis School of Law, cum laude, in 2002, after receiv-ing her B.A. from the University of Louisville in 1999.

The members of Kinkead & Stilz, PLLC, announce that Melanie S. Marrs, David A. Trevey, and Tonya S. Rager have joined the firm as members. Together, Marrs, Tevey, and Rager bring over 50 years of experience defending healthcare professionals, healthcare institutions, and other professionals. Their litigation practice enhances the firm’s broad strengths—including municipal officer defense, business law, environ-mental law, real estate litigation and transactions, estate planning and litigation, and tax litigation. Previously, Marrs, Trevey, and Rager practiced at Fulkerson, Kinkel & Marrs, PLLC, a boutique Lexington firm with a concentration in health-care defense. Marrs has represented nearly every physician specialty throughout the state. She also represents institutional healthcare delivery clients including hospitals, clinics, and skilled nursing facilities. Trevey’s practice began as medical

malpractice defense, and grew to include all types of professionals – including lawyers, accountants, architects, engineers, realtors, and surveyors. He also spent several years defending skilled nursing facilities and hospitals throughout Eastern Kentucky. Rager received an LL.M. from Loyola University Chicago School of Law in health care law and has served as staff attorney on the Kentucky Court of Appeals. Since entering private practice she has managed large-scale medical litigation including the London Cardiac Litigation and Complicated Aviation Defense cases among others. Rager has also represented physicians and other healthcare providers throughout the state providing professional liability defense.

J. Clark Baird PLLC has moved offices into their own building at 969 Barret Avenue, Louisville, KY 40204. The firm still focuses on federal criminal defense and regulatory issues and business litigation.

Following his nomination by President Trump in June and confirmation by the U.S. Senate, Frost Brown Todd (FBT) Member Russell Coleman was sworn in as the new U.S. Attorney for the Western District of Kentucky. Coleman joined FBT and the firm’s public affairs subsidiary, CivicPoint, in February 2015, after a five-year tenure as senior adviser and legal counsel to Sena-tor Mitch McConnell. He has more than a decade’s experience of working both in fed-eral law enforcement and on Capitol Hill. In 2004-2010, he served as an FBI special agent, investigating a broad portfolio of national security, white collar and violent crime matters. He was temporarily assigned

to the National Joint Terrorism Task Force and volunteered for a 2007 assignment in support of Operation Iraqi Freedom in Anbar Province, Iraq. Coleman is a graduate of the University of Kentucky and the University of Kentucky College of Law.

Judge Craig Z. Clymer has retired from the McCracken Circuit bench after 23 years of service. He has joined as a partner with Boehl Stopher & Graves, LLP, in Paducah. Judge Clymer is a graduate of Chase Law School. He also graduated from the National Judicial College Civil Mediation program and the U.S. Department of Defense Basic and Advanced Mediation courses. He has served as an ombudsman and mediator for a branch of the U.S.D.O.D. since 2004. He will be concentrating on mediation of general civil and maritime cases; along with a general practice of law.

Jamie Hargrove and Jamie Traughber announce their estate and trust law firm Hargrove Traugh-ber LLP. Hargrove Traughber LLP has one of the largest estate and trust practices in the Mid-west, and it will continue focusing its practice in estate planning, probate, trust administration and related tax matters. Hargrove Traughber plans to grow its traditional estate planning practice and its high net worth estate planning practice in its current locations, while also expanding the prac-tices into other major markets. Hargrove is an estate and trust tax attorney, CPA and author of “End of Lawyers, Thank Goodness! Estate Plan-

ning and the End of Inefficient Lawyers.” Traughber is an estate and trust tax attorney and has been part of Hargrove’s practice for over 10 years. Hargrove Traughber LLP maintains offices in Louisville and Lexington, Ky., and Brentwood, Tenn.

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73BENCH & BAR |

employment law during her clerkships, where she had the oppor-tunity to work on several discrimination and harassment cases. Other areas of interest include alternative dispute resolution and regulatory compliance.

Fulton, Devlin & Powers LLC recently announced that Robert J. Nemes has joined the firm. Nemes’ practice will focus on workers’ com-pensation defense and subrogation. He earned his B.S. from the University of Louisville in 2011 and his J.D. from the University of Louisville Brandeis School of Law in 2014.

Hare, Wynn, Newell & Newton LLP announce the addition of Jonathan B. Fannin, associate attorney to its Lexington office. Fannin grew up in Morehead, Ky. He obtained his undergraduate degree in philosophy from Morehead State Uni-versity in 2011 before going on to earn his J.D.

from the University of Kentucky College of Law in 2014. Upon graduation, he accepted a position as a law clerk to the Honorable Justice Daniel J. Venters on the Kentucky Supreme Court. Fannin will work primarily in the areas of nursing home abuse and neglect, personal injury and wrongful death litigation.

The Law Offices of Attorney Walter C. Cox Jr. announce that they have moved to a new office location as of Sept. 1, 2017. Their new office address is 1795 Alysheba Way, Suite 3106, Lex-ington, KY 40509. Their office numbers and website have also been updated to phone: (859) 687-9462; fax: (859) 687-9463 and web: www.waltercoxtrustsandwills.com.

Morgan & Pottinger, P.S.C., recently announced that Sharon C. Hardy has joined the firm’s Louisville office as a member. Hardy’s practice concentrates on commercial transactions, includ-ing commercial real estate finance and asset-based lending. Her commercial real estate practice includes construction financing for office, retail, industrial, multi-family and hospitality projects. Hardy assists institutional lenders in structuring, documenting, closing, modifying and restructuring loans, and workout transactions. She also serves as lead counsel on major commercial real estate transactions, representing investors in the acquisition, disposition, development, financing and leas-ing of commercial properties, including office, retail, industrial, multifamily, hospitality and healthcare facilities. She is a member of the Kentucky and Louisville Bar Associations and attended the University of Louisville Louis D. Brandeis School of Law.

Trey Grayson, former president and CEO of the Northern Kentucky Chamber of Commerce, has joined Frost Brown Todd (FBT) and the firm’s government relations subsidiary, CivicPoint. Grayson will hold dual roles as a member of FBT in the firm’s Florence office and as a prin-cipal of CivicPoint, the consulting firm that has

Lynch, Cox, Gilman & Goodman, PSC, announce the addition of a new associate, Jessica Lindner. Lindner received her J.D. in 2016 from the University of Louisville Brandeis School of Law. Her practice focuses primarily in the areas of patent, trademark, and copyright law.

Joey Mankovich has joined the firm, Thompson Miller & Simpson, as an associate. He received his J.D. in 2012 from the University of Kentucky College of Law and clerked for the Kentucky Supreme Court. He will practice in the fields of commercial and healthcare litigation.

Hoge Partners, PLLC, announce that founding member William L. Hoge, III, has retired after 45 years of legal practice in Louis-ville, the majority of which he focused on family law. During his legal career, he served as assistant Jefferson County attorney, chief prosecutor for Jefferson County, general counsel to the Interna-tional Union of Electrical Workers, Local 761 at General Electric and general counsel to the Kentucky State District Council of Carpenters, AFL-CIO. Since 1991, Hoge has concentrated his private practice on family law. He previously served as president of the Kentucky Chapter of the American Academy of Matrimonial Lawyers and was a former chair of the family law sections for both the Kentucky Bar Association and the Louisville Bar Association. Hoge was the recipient of the 1999 Judge Richard A. Revell Family Law Practitioner of the Year award and the “Raising the Bar” award from the Kentucky AAML chapter in 2007. He will continue to provide counsel to James K. Murphy and Ruth Wilkerson at Hoge Partners, PLLC, but expects to focus on spending time with his family and pursuing his charitable endeavors.

Kerrick Bachert, PSC, recently announced that Matthew P. Cook has joined the firm as a liti-gation partner in its Bowling Green office. Cook will primarily handle insurance defense matters for the firm. In addition, he will continue his practice in a variety of transactional and litigation matters ranging from general civil litigation to

commercial and business litigation, employment law, professional malpractice, and insurance coverage disputes. He also advises gov-ernmental entities and businesses on matters involving contract drafting and compliance issues. Cook received an A.B., with honors, from the University of North Carolina at Chapel Hill in 1994. He obtained a J.D., cum laude, from the University of Louisville, Brandeis School of Law in 1998.

Littler Mendelson’s Lexington office announces that Sarah T. Laren has joined the firm as an associate. Laren earned her J.D. from the University of Kentucky, as well as a B.A. in French and international economics with a minor in Japan studies. During law school, she was a staff member of the Kentucky Law Journal and a Moot Court Board member. Upon graduation, she served as a law clerk for the Honorable David L. Bunning and the Honorable Joseph M. Hood, both U.S. District Court Judges in the Eastern District of Kentucky. Laren first became interested in labor and


guided clients through state and local government affairs since 2013. Grayson resigned from his position as president and CEO of the Northern Kentucky Chamber in early June after three years of successful leadership. During his tenure, the chamber made unprecedented strides in business advocacy, membership benefits, workforce and economic development. Grayson earned his JD/MBA at the University of Kentucky College of Law in 1998 and went on to practice law in Cincinnati. In 2003, at the age of 31, he was elected Kentucky Secretary of State—at the time the young-est secretary of state in the country. At FBT, Grayson is reunited with Jonathan Miller, with whom he worked closely on bipartisan policy matters when both held statewide elected office, and with Steve Robertson, who chaired the state Republican Party when Grayson served.

Harlin Parker, Attorneys At Law, announce the addition of Justin L. Duncan and Amanda M. Sowell to the firm as associate attorneys. Duncan was born and raised in Somerset, Ky. He obtained a B.A. in History from Western Kentucky Uni-versity, prior to obtaining his J.D. from Northern Kentucky University, Salmon P. Chase College of Law. His practice is dedicated to insurance defense litigation, commercial and business, real estate and personal injury. Sowell is a Louisiana native and graduated from Centenary College of Louisiana with a B.A. in history, and from Mississippi College School of Law, cum laude. Sowell’s primary areas of practice include trucking/transportation defense, insurance defense, and real estate.

Lynch, Cox, Gilman & Goodman, PSC, recently announced the addition of two new attorneys, Robert Brown and David Roth. Brown represents emerging companies seeking new markets. In additional to a law degree, he has earned an MBA and M.S. in urban economics (Louisville), M.S. in Japanese business ( Jochi University in Tokyo), and two Ph.D.’s in law and development (University of Cambridge and The London School of Econom-ics and Political Science). Roth brings over 40 years of legal and business planning expertise to the firm. Roth earned a LL.M. in Taxation from Georgetown University Law Center and a J.D. from Boston University School of Law. He is admitted to practice in Kentucky, District of Columbia, U.S. Tax Court, U.S. Court of Claims, and the U.S. Supreme Court.

Eric C. Straub has joined Whitlow, Roberts, Houston & Straub, PLLC, as an associate. Straub received his B.S. From Missouri State University and his J.D. in 2017 from the Uni-versity of Kentucky College of Law.

Peter Catalano joined the firm as an associate attorney in October 2017 after previously work-ing as our law clerk. Catalano is originally from Nashville. He graduated with a B.A. in political

science from the Honors College at the College of Charleston. Thereafter, he enrolled at the Brandeis School of Law at the Uni-versity of Louisville where he earned his J.D. in May 2017. Catalano was admitted to the Kentucky Bar in October 2017. During law school, he was a member of the Robert and Sue Ellen Ackerson Law Clinic where he represented clients in Emergency Protective Order hearings, divorce cases, and other matters as needed. Cat-alano is a member of both the Kentucky Bar Association and the Louisville Bar Association and their respective family law sections.

The London law firm of Kelley, Brown & Breed-ing announces that Megan Holloway has joined the firm. Holloway received her B.A. in political science from Eastern Kentucky University in 2014, and earned her J.D. from the University of Kentucky, College of Law in 2017. Holloway is

joining the firm as an associate attorney concentrating her practice in civil litigation.

Congratulations to McBrayer Member Jon Woodall and all the team members and parents of Lexington’s Eastern Little League. Woodall currently serves as president of the league. Eastern’s 11/12 year old All-Stars were State Champions and Great Lakes Regional Tournament qualifiers! Over 3000 teams competed for a trip to the Little League World Series in Williamsport, Pa. Eastern was one of 32 teams remaining before being eliminated by eventual Regional Champion and Little League World Series qualifier Grosse Point, Mich. Eastern is based at Ecton and Merrick Parks in the Chevy Chase and Lansdowne Merrick neighborhoods. With support from local businesses and friends (including McBrayer), Eastern Little League turns no family away due to the inability to pay registration fees or purchase equipment.

Whitehall House & Gardens recently elected Stites & Harbison, PLLC, attorney Whitney Frazier Watt to its Board of Regents. She will serve a three-year term (2017-20). Whitehall House & Gardens is a historic home and estate garden that is owned and operated by the not-for-profit Historic Homes Foundation, Inc. The mission of the group is to preserve, educate and present the house as a Victorian inter-pretation of a southern plantation and to develop and maintain the grounds and gardens as a green space for future generations. Watt is a member (partner) of Stites & Harbison based in the Louisville, Ky., office. She has developed a wide-ranging litigation practice that includes product liability, toxic torts, mass actions, contract disputes, tortious interference, and wrongful death.

Ed Monahan was elected treasurer of the ABA Government and Public Sector Lawyers Divi-sion Council at the August ABA Annual meeting in New York. The Council serves public lawyers by offering programs, publications, and online resources specifically for government, public

IN THE NEWS


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sector & military lawyers. He has completed three years of service on the ABA Death Penalty Due Process Review Project Steering Committee which conducted comprehensive assessments on the administration of capital punishment in 12 states including Ken-tucky. Monahan and Jim Clark, dean of Florida State University’s School of Social Work, co-edited the ABA’s Tell the Client’s Story: Mitigation in Criminal and Death Penalty Cases which was published May 2017. It provides litigation teams the best strategies for effec-tive mitigation work in criminal and capital cases. After completing 37 years as a public defender and nine years as public advocate, he is now a national criminal and public defense consultant and trainer, serving on the Steering Committee of the National Association for Public Defense, a 15,000 member association of practitioners addressing the systemic failure to provide the constitutional right to counsel, and collaborating with diverse partners for solutions that bring meaningful access to justice for poor people.

Bingham Greenebaum Doll LLP announces new leadership changes in the litigation department. Partner John Bush is stepping down from his role as co-chair of the litigation department following his recent confirmation by the U.S. Senate to the U.S. Sixth Circuit Court of Appeals, where he will serve a lifetime appointment. Mark Grundy has been named the new litigation department co-chair alongside James Hinshaw, while Benja-min Lewis is now the fiduciary litigation practice group co-chair. Grundy previously served as fiduciary litigation practice group co-chair and construction litigation team co-chair. Grundy concentrates his practice in business litigation and dispute resolution. He has broad experience in contract, commercial, estate, real estate, trade secret, employee benefit and products liability law. Grundy significantly concentrates

his practice in construction law, representing owners, developers, general contractors, subcontractors and suppliers. Lewis focuses his practice on complex business litigation matters, particularly disputes involving breach of fiduciary duty claims against trustees, executors, directors, officers and other key employees, as well as unfair business competition cases. Lewis’ courtroom experience includes several successful representations in some of the largest shareholder and trust and estate disputes in Kentucky over the past decade. He has been recognized as a “Kentucky Rising Star” by Kentucky Super Lawyers® in each of the last three years.

Cintas announces that Ashlee Coomer Foltz has been selected by the Cincinnati Business Cou-rier for its “Forty Under 40” award. This annual awards program recognizes Greater Cincinnati professionals under the age of 40 who are making big strides in their careers while also making a difference in the community. Foltz serves as chief compliance officer at Cintas where she leads the global compliance and ethics program across a $5.3B enterprise with over 42,000 employees and 400+ locations in North America, Latin America and Asia. She earned a B.A. in English from Centre College and a J.D. from the University of Dayton School of Law.

The Lawrence Firm announces that partner Rob Lewis has been elected to a two-year term as co-chair of the American Association of Jus-tice’s Birth Trauma Litigation Group. The Birth Trauma Litigation Group is a national organiza-tion of attorneys devoted to representing babies

and the families of babies who have suffered the devastating effects of preventable, catastrophic injuries at birth. Lewis devotes his prac-tice to the representation of his catastrophically injured clients and their families, most frequently representing children who are dev-

astated by brain injuries at birth as a result of poorly managed labors and negligently executed deliveries. He frequently writes and lectures on birth injury, medical neg-ligence, litigation and trial practice. He is a member of the Executive Board of AAJ’s Birth Trauma Litigation Group. Lewis is a prior editor and contributor of the Birth Trauma Litigation Newsletter and a prior co-chair of the American Association of Justice’s Medical Negligence Information Exchange Group.

Kentucky’s Council on Postsecondary Education has welcomed Dinsmore & Shohl LLP’s Robert M. Croft Jr. to its Committee on Equal Opportunities. As

Kentucky’s education coordinating agency, the Council’s mission is to strengthen the state’s quality of life, workforce and

Mark Grundy

Benjamin Lewis


economy through educational improvements that result in a more diverse, innovative, accessible and affordable system. A partner at Dinsmore, Croft is a member of the product liability and toxic tort practice groups. He concentrates his practice in the areas of product and premises liability, insurance coverage issues and business litiga-tion. Croft’s community involvement has included being honored in 2016 as one of Nfocus magazine’s “New Faces in Philanthropy” for his work with the Muhammad Ali Center. He was featured on Business First’s 40 Under 40 list in 2014 and honored as a 2013 YMCA Adult Black Achiever.

Bingham Greenebaum Doll LLP announces that David W. Tandy has been selected by the Kentucky Commission on Human Rights for induction into the Kentucky Civil Rights Hall of Fame for 2017. The induction ceremony was held during a public reception on Sept. 21, 2017, at the Kentucky Center for African American Heritage. Nominees for the Kentucky Civil Rights Hall of Fame are men and women who have made significant contributions to Kentucky’s progress in the areas of civil and human rights. An independent panel of judges made up of civil rights advocates and business and education professionals evaluate nominees. Tandy serves as of coun-sel in the Louisville office of Bingham Greenebaum Doll LLP where he leads the firm’s diversified business solutions team and is a member of the economic development department.

United Way of the Bluegrass recently elected Stites & Harbison, PLLC, attorney John Pollom to its board of directors. He will serve a three-year term. United Way of the Bluegrass is a leader and motivator of change for long-term solutions in Central Kentucky communities. Its mission is to fight for the education, basic needs and financial stability of every person in the Bluegrass. Pollom is a member (partner) in Stites & Harbison’s Lexington office where he is a member of the business litigation service group. He is experienced in matters related to medical and professional malpractice litigation, product liability defense, financial institutions litigation, insurance coverage, and civil litigation defense, including toxic tort.

Jesse D. Fries has been named partner with Orwin & Fries Law Office in Somerset, Ky. For more than 30 years, Orwin Law has provided valuable legal service to individuals, families, and businesses. The law firm offers a holistic approach, supporting clients with their lifelong legal needs.

Fries earned a B.A. from the University of Louisville and a J.D. from Vermont Law School. He is a member of the Kentucky Bar Association. At Vermont Law School Fries gained extensive experi-ence in environmental law. Working with the Vermont Law School Environmental and Natural Resources Law Clinic he worked to protect local waterways for fishing and recreation, fought to restrict expansion of aging oil pipelines, and helped enforce coal reclama-tion statutes. The announcement of Fries’ partnership coincides with the unveiling of the firm’s new name, website, logo, and identity system. The firm’s symbol, a stylized sun composed of law books, represents the light and knowledge that Orwin & Fries strives to

bring to all legal undertakings. Orwin & Fries motto, “Law. For Life.” encapsulates their approach to the law, and particularly how they help their clients, and how they develop long-lasting rela-tionships with them. For more information contact them at (606) 678-4386 or visit their website at orwinlaw.com.

The Cincinnati law firm of Keating Muething & Klekamp PLL (KMK Law) announces James E. ( Jim) Parsons has been named partner. Parsons joined KMK Law in July 2016 as a member in the firm’s real estate group where he focuses his practice in the areas of public law, public finance and tax incentives for business development, including tax increment financing for development projects. He has been actively involved in those practice areas for more than 10 years during his prior time as of counsel in the North-ern Kentucky office of Taft Stettinius & Hollister LLP. Parsons earned his J.D. from Salmon P. Chase College of Law, Northern Kentucky University in 1980 and his B.A. from Northern Kentucky University in 1976.

Dinsmore & Shohl LLP’s Vanessa N. Rogers has joined Maryhurst’s inaugural Associate Board. Maryhurst is a behavioral health organization in Louisville serving abused and neglected children. Founded in 1843, it is the oldest child welfare agency in Kentucky. As a member of the newly organized Associate Board, Rogers will volunteer her time to support programs and activities that further Mary-hurst’s mission to create new beginnings for children who have suffered abuse. A member of Dinsmore’s Labor and Employment Department, Rogers handles all varieties of employment challenges for clients, ranging from discrimination and retaliation issues to on-the-job injuries.

For the fifth consecutive year, Benchmark Litiga-tion Magazine has named Stoll Keenon Ogden PLLC attorney Lea Pauley Goff to its list of the nation’s Top 250 Women in Litigation. Goff is among the eight women attorneys in Kentucky to earn a place on the sixth annual Benchmark Litigation compilation. Goff chairs SKO’s Bank-

ruptcy & Financial Restructuring practice and a member of the business litigation practice, where she co-chairs the banking litiga-tion practice. She earned the Benchmark Litigation honor for her work in bankruptcy and commercial litigation. Top 250 Women in Litigation is dedicated to honoring the accomplishments of America’s leading female litigators representing the 50 states and the District of Columbia. Honorees are chosen based primarily on targeted research including peer review and overall depth of their litigation careers.

Thompson Miller & Simpson announce that Mitchel Denham has been elected as treasurer of the Children’s Hospital Foundation, which supports Norton Children’s Hospital. Denham has served as a Trustee since 2012, and on the Foundation’s Finance and Grants Committee.


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efficiency, benchmark energy consumption and obtain ENERGY STAR Certification. Cave is a member (partner) of Stites & Har-bison based in the Louisville, Ky., office. She is a member of the environmental, natural resources & energy service group.

Pregliasco, Straw-Boone, Doheny, Banks & Bowman, PLLC, announces that attorney Jason A. Bowman has become a fellow of the Ameri-can Academy of Matrimonial Lawyers (AAML). Academy Fellows are highly skilled negotiators and litigators who represent individuals in all

facets of family law. Bowman is now the third partner with Preg-liasco, Straw-Boone, Doheny, Banks & Bowman, PLLC, to become a fellow with the academy.

Two Stoll Keenon Ogden PLLC (SKO) attorneys and an alumnus of the firm are among the nation’s most notable up-and-coming litigators listed in the 2017 Benchmark Litigation Under 40 Hot List. SKO’s Monica Braun and Brad Keeton, and SKO alumnus Carl Frazier were three of the four Kentucky attorneys making the list of 344 lawyers nationwide who earned a position in this prestigious compilation. Lawyers on the list are at the partner level of their respective firms who are age 40 or younger, have participated in some of their firms’ most noteworthy cases, and have earned praise from clients and peers regarding the quality of their work. A member of the business litigation practice, Braun focuses on intellectual property litigation. She recently represented the Kentucky Horse Racing commission in a dor-mant commerce clause challenge regarding an

Conliffe, Sandmann & Sullivan recently announced that Maureen Taylor has been selected as a Charter Fellow in the newly formed Construction Lawyers Society of America (CLSA). CLSA is an invitation-only honorary association for outstanding lawyers whose prac-tices focus on construction law and related fields.

Limited to 980 Fellows throughout the United States, the Society will provide continuing education, publication opportunities, a referral network, and even emergency assistance to help maintain the practice of a Fellow who is experiencing an emergency. Licensed in both Kentucky and Ohio, Taylor has handled numerous con-struction cases over the past 20 years. In addition, while practicing at Bricker & Eckler in Columbus, Ohio, she edited the monthly electronic newsletter ohioconstructionlaw.com for seven years. She is excited to be in at the beginning of a new and promising legal association.

Dinsmore & Shohl LLP’s Felix H. Sharpe has joined the Louis D. Brandeis Inn of Court as an associate member. Part of the American Inns of Court, the Brandeis Inn is an organization for legal practi-tioners that promotes skill development and professional excellence. The Inn is limited to 84 members and has a focus on litigation and trial techniques. An associate in Dinsmore’s litigation department, Sharpe concentrates his practice in the areas of commercial litiga-tion and torts. He represents business clients in matters involving product liability, personal injury, negligence and premises liabil-ity. Sharpe also regularly represents clients in the public utilities industry, particularly the telecommunications industry, on matters related to cell tower zoning and placement. He received his J.D., cum laude, from Thomas M. Cooley Law School and his B.A. from Grand Valley State University. The Louis D. Brandeis American Inn of Court was founded in 1995.

Stites & Harbison, PLLC, attorney Jennifer Cave was recently elected to the board of directors of the KMAC Museum and the Louisville Energy Alliance (LEA). She will serve a three-year term for the KMAC Museum and a two-year term for the LEA. The KMAC Museum is a contemporary art museum located in Louisville’s historic downtown on Museum Row. The museum explores the relation-ship between art and craft while educating and inspiring a better understanding of art through exhibitions, education and collec-tions. The LEA is a 501(c)(3) nonprofit whose mission is to reduce greenhouse gas emissions by promoting energy effi-ciency and conservation efforts. The LEA offers educational events and programs to building owners and managers, helping them access resources to improve energy

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industry-standard regulation pertaining to the purchase of horses in claiming races. Braun obtained a summary judgment upholding the constitutionality of the regulation and the decision was affirmed on appeal. Keeton is a member of the firm’s business litigation, min-eral & environmental law and tort, trial & insurance practices. His practice focuses on business litigation, antitrust matters, complex commercial litigation and insurance defense. Keeton has achieved notable favorable results, including successfully defending a large automobile manufacturer on a multimillion dollar claim through summary judgment and a jury verdict in the client’s favor. Frazier is experienced in a variety of industries including insurance, tech-nology, public utilities, transportation, education and government entities. His professionalism and service have been recognized by numerous awards, including as 2016 Outstanding Young Lawyer by the Kentucky Bar Association and one of three finalists con-sidered by the American Bar Association for 2016 William Reece Jr. National Outstanding Young Lawyer. After 10 years with SKO, Frazier recently joined the legal staff of one of the nation’s largest multinational retailers.

Frost Brown Todd (FBT) Member Stephen E. Embry has received the 2017 John Appleman Award by the Federation of Defense & Corporate Counsel (FDCC). Embry, who has chaired the FDCC Substantive Law Section on Data Breach, Privacy and Cyber Insurance since its incep-tion last year, was identified as the section chair who made the most outstanding con-tribution to the advancement of the FDCC’s education goals through the work of his sec-tion. Embry is a national litigator with more than 40 years of experience in developing solutions to complex litigation and corporate problems. He handles a wide range of litiga-tion matters, including consumer class action and mass tort cases, and is also a member of FBT’s technology group, fbtTECH, which focuses on various aspects of technology and how it affects the legal system. In addition to serving as Substantive Law Section chair of FDCC, Embry is vice chair of the Legal Technology Resource Center of the American Bar Association (ABA) and a member of the ABA’s Law Technology Today editorial board.

Fisher Phillips partner Jeffrey A. Savarise has been appointed chair of the Akron School of Law Advancement Council. The Council serves as the primary advisory body to the school of law, consisting of a diverse group of alumni and friends representing the highest levels of their field drawn from private and public sector practitioners, business executives and judges. Council members advise the dean with the input and assistance of individuals whose experience provides a variety of per-spectives to advance the quality and standing


of the Akron School of Law. Savarise, a 1985 graduate of the Akron School of Law, has served as a council member and is the 2009 recipient of the School’s Outstanding Alumni Award. As partner of Fisher Phillips in Louisville, Savarise is chair of the automotive manufacturing practice group for the national law firm. He is a member of the Labor and Employment Sections of the Kentucky and American Bar associations. He is also a member of the Ameri-can Bar Association Committee on Alternative Dispute Resolution.

The Kentucky Hemp Industries Association (KYHIA) recently elected Stites & Harbison, PLLC, attorney Rick Vance to its Board of Direc-tors. KYHIA is a 501(c)(6) membership-based, non-profit trade group founded in 1992. The group’s mission is to represent the interests of the

emerging Kentucky hemp industry. KYHIA encourages research and development of new products made from industrial hemp while offering members a network of like-minded, trusted individuals within the current hemp industry. Vance is a member (partner) of Stites & Harbison based in the Louisville, Ky., office. His practice focuses on real estate law, antitrust, trade associations, financial institutions and the industrial hemp industry.

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