Attorney Sidebar: The Importance of Trial by Jury to Constitutional Accountability

~ Thomas Jefferson

I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.

and

Trial by jury is part of the bright constellation which leads to peace, liberty and safety.

Thomas Jefferson reminds us that our right to trial by jury is critical to our Constitution, our government, our peace, our liberty and our safety.

Think about the negative implications when the accountability afforded by a jury trial is impinged by the acts of the government whether by legislation or rule making.  This would include legislation to cap jury verdicts which distrusts a jury of one’s peers, the conscience of the community, and deprives those suffering losses to bear the cost of another’s negligence.

Bushell’s Case decided back in 1670 demonstrates how government treated juries as rubber stamps of the Crown’s decision and those of the presiding judge, the controls on peaceful assembly, free speech and pursuit of religious liberty all wrapped up in one when Quakers speaking in front of Grace Street Church in London.  Jurors died for the preservation of this right, and withstood physical confinement and deprivations rather than be told to render a verdict that was unjust simply because that was what the presiding judge directed they do!

The above link is to the facts, but if you want a telling and spell-binding recitation that goes in to the events and the travails of the jurors, then read “I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know” by Jim M. Perdue.

SC: November 2, 2017 Decisions of the Supreme Court of Kentucky (Minutes)

Nos. 136-158; 23 decisions; with 14 decisions designated for publication

A complete list of the minutes for all published and non-published decisions are further down the page, but we highlight selected published decisions (with direct links to their full text), attorney disciplinary matters (with links), and grants of discretionary review (no links) from the November 2017 Minutes of the Supreme Court of Kentucky.

Selected Published Decisions:

136.  Notice of Appeal
Ken Isaacs v. Jeff Caldwell
Questions Presented: Civil Procedure. Notice of Appeal. Summons. CR 3.01. Plaintiffs’ appeal from a decision of the planning commission was properly dismissed for improper service of process.

138.  Sovereign Immunity.
Big Sandy Regional  Jail Authority v. Lexington-Fayette Urban County Govt
Questions Presented: Sovereign Immunity. KRS 441.025. At issue in this matter is whether sovereign immunity bars an action by a regional jail against a county to recover the costs of housing that county’s prisoners, after they were arrested and held pursuant to a warrant from courts of that county. In addition, at issue is whether KRS 441.025 obligates a county to pay for the incarceration of prisoners arrested and held on warrants issued by the courts of that county which are served in the county where the prisoner is incarcerated.

140.  Sovereign Immunity.
University of Louisville v. Rothstein
Questions Presented:   Sovereign Immunity. Government Contracts. Employment. KRS 45A.245. The University is not immune from a former employee’s claim for breach of his written employment contract.

144.  Tort of conversion.
Ford v. Baerg, Jr.
Questions Presented:    Law. Conversion. Uniform Commercial Code. Issues include whether the defendants committed the tort of conversion when a signatory on the plaintiff’s bank accounts used his apparent authority over the accounts to transfer funds for the benefit of the defendants.

146.  Tort of Negligent Credentialing
Lake Cumberland Regional Hospital, LLC v. Spring View Hospital, LLC
This Court granted discretionary review to consider the issue of whether patients have a cause of action against a hospital for the negligent credentialing of a non-employee physician who is given staff privileges by the hospital. We consolidate these cases to determine whether Kentucky law recognizes the tort of negligent credentialing. For the following reasons, we reverse the Court of Appeals’ of negligent credentialing as a separate cause of action in the Commonwealth.

147.  Negligence. Medical Malpractice. Jail Healthcare. Expert Testimony.
John Adams, MD v. Sietsema
An inmate who claims that the jail’s medical director and nurse practitioner caused his illness to become life threatening by inadequately supervising and communicating with the jail’s nursing staff was required to present expert testimony to establish the standard of care for jail medical staff

149.  Nursing home compulsory arbitration clause reviewed
Kindred Nursing Centers Limited Partnership v. Wellner
Questions Presented:   Power of Attorney. Arbitration. Remand pursuant to the opinion of the United States Supreme Court in Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421 (2017).

Attorney Discipline November 2, 2017:

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW –
OCTOBER 25, 2017

MELVIN HENSLEY, ET AL. V. HAYNES TRUCKING, LLC, ET AL.
2016-SC-000180-DGE FAYETTE

SHANNON JONES, ET AL. V. DAVID WAYNE BAILEY
2017-SC-000203-DG FRANKLIN

VERONICA BRADLEY V. KENTUCKY RETIREMENT SYSTEMS
2017-SC-000275-DG FRANKLIN

NORTHERN KENTUCKY AREA DEVELOPMENT DISTRICT V. DANIELLE SNYDER
2017-SC-000277-DG BOONE

LEXINGTON-FAYETTE URBAN COUNTY HUMAN RIGHTS COMMISSION V. HANDS-ON ORIGINALS
2017-SC-000278-DG FAYETTE

MT. WASHINGTON FIRE PROTECTION DISTRICT V. MICHAEL DOOLEY
2017-SC-000313-DG BULLITT

AMERICAN GENERAL LIFE INSURANCE COMPANY, ET AL. V. DRB CAPITAL, LLC, ET AL.
2017-SC-000329-DG BOYD

KENTUCKY RETIREMENT SYSTEMS V. RONALD ASHCRAFT
2017-SC-000345-DG FRANKLIN

JOE DAUGHERTY, ET AL. V. BOBBI TABOR
2017-SC-000374-DG MCCREARY

KEITH A. GADD, ET AL. V. DON HENSLEY
2017-SC-000431-DG GARRARD

Here is a link to the indexed minutes for the Supreme Court of Kentucky at their official web site.

Here is link to the Kentucky Court Report’s archived minutes for the Supreme Court.

This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more are as follows.  Use the scroll arrows at the bottom left of the PDF document to scroll through the pages.

MNT112017

SC: Attorney Discipline Matters for September 28, 2017

SC: Attorney Discipline Matters for August 24, 2017

BRYAN EDWARD BENNETT V. KENTUCKY BAR ASSOCIATION
2017-SC-000241-KB IN SUPREME COURT
ORDER OF PUBLIC REPRIMAND.
ALL SITTING. ALL CONCUR.

KENTUCKY BAR ASSOCIATION V. CARL WAYNE GIBSON
2017-SC-000247-KB IN SUPREME  COURT
TO BE PUBLISHED
ORDER OF SUSPENSION FROM THE PRACTICE OF LAW FOR 30 DAYS.
ALL SITTING. ALL CONCUR. 

SC: Attorney Discipline Matters for June 2017

Roger D. Varney, II; David Thomas Sparks: Jamie L. Turner

A. Kentucky Bar Association v. Roger D. Varney, II 

2017-SC-000101-KB June 15, 2017 

Opinion and Order of the Court. Minton, C.J.; Cunningham, Hughes, Keller, VanMeter, and Venters, JJ., sitting. All concur. Wright, J., not sitting. The Inquiry Commission filed twelve charges against Varney stemming from three separate disciplinary files. Although Varney filed answers to the charges, he did not participate in either the prehearing conference or the hearing before the Trial Commissioner. The Trial Commissioner ultimately recommended a finding of guilty on all charges in each of the three consolidated files and recommended suspension for a period of 181 days and payment of restitution to Varney’s clients.

The Board of Governors ultimately adopted the Trial Commissioner’s findings and recommended sanction. Neither Varney nor Bar Counsel filed a notice of review with the Supreme Court under SCR 3.370(8) and the Court declined to review the Board’s decision under SCR 3.370(9). Accordingly, the Court adopted the Board’s recommendations, finding Varney guilty of twelve disciplinary charges, suspending him from the practice of law for 181 days, and ordering payment of restitution to his clients.

B. Kentucky Bar Association v. David Thomas Sparks 

2017-SC-000115-KB June 15, 2017 

Opinion and Order of the Court. All sitting; all concur. Sparks, who was under suspension by three separate orders of the Supreme Court, was charged by the Inquiry Commission with violating several Rules of Professional Conduct. Numerous unsuccessful attempts at service were made by mail and the Warren County Sheriff’s Department. Due to Sparks’ failure to respond to the charge, the Commission submitted the matter to the Board of Governors under SCR 3.210(1). The Board unanimously found Sparks guilty of each alleged violation. After considering Sparks’ prior disciplinary history, the Board unanimously recommended that Sparks be suspended from the practice of law for one year, to run consecutively with the other pending suspensions.

The Supreme Court reviewed the record and agreed that the Board reached the appropriation conclusions as to Sparks’ guilt. Accordingly, the decision of the Board was adopted and Sparks was suspended from the practice of law for one year to run consecutively with the two, 181-day suspensions previously ordered by the Court. Sparks was further referred to the Kentucky Lawyers Assistance Program, directed to attend and successfully complete the KBA’s Ethics and Professional Enhancement Program, and directed to refund any unearned fees to his client. 9

C. Jamie L. Turner v. Kentucky Bar Association 

2017-SC-000117-KB June 15, 2017 

Opinion and Order of the Court. All sitting; all concur. The KBA suspended Turner’s license for failure to comply with CLE requirements. The Supreme Court gave Turner an extension to appeal that suspension. In her appeal, Turner stated she had attended an out-of-state conference and thought her CLE hours had been reported. She also stated that, when she was unaware of the deficiency until she received the notice of suspension. Once she became aware of the suspension, Turner took steps to fulfill her CLE obligations, and she asked to be relieved from going through the restoration process provided in the Supreme Court Rules. Based on the record, the Supreme Court held that Turner had not presented sufficient evidence to justify relieving her from complying with the restoration process.

SC: Attorney Discipline Matters for April 2017

Danny Perkins Butler; Christopher David Wiest; Dennis Michael Statesman; David Cary Ford; Christopher Lee Stansbury; James David Johnson

A. Inquiry Commission v. Danny Perkins Butler 

2016-SC-000668-KB April 27, 2017 

Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission moved the Court to temporarily suspend Butler’s license to practice law based on information the Commission had received from the Hardin County Commonwealth’s Attorney. That information revealed that Butler had been indicted for theft by unlawful taking of more than $10,000 related to Butler’s misappropriation of client funds. The Commission also noted that the Federal Bureau of Investigation was investigating 115 complaints related to Butler that it had received. The Supreme Court granted the Commission’s motion.

B. Kentucky Bar Association v. Christopher David Wiest 

2017-SC-000039-KB April 27, 2017 

Opinion and Order of the Court. All sitting; all concur. The Supreme Court of Ohio suspended Wiest for two years, with the second year stayed on the condition he engage in no further misconduct. Thereafter, the Kentucky Bar Association filed a petition with the Supreme Court of Kentucky asking that reciprocal discipline be imposed. The Court issued a show cause order and Wiest responded but failed to prove by substantial evidence that the grounds set forth in SCR 2.435(4)(a) and (b) were met in his case. Accordingly, the Court suspended him from the practice of law consistent with the order of the Supreme Court of Ohio. 6

C. Kentucky Bar Association v. Dennis Michael Stutsman 

2017-SC-000098-KB April 27, 2017 

Opinion and Order of the Court. All sitting; all concur. Stutsman was banned from filing any new cases in federal court for a period of one year for failing to timely filing appeals in two separate Social Security cases. The matter was referred to the KBA Office of Bar Counsel for disciplinary proceedings. Stutsman was served with a copy of the Inquiry Commission complaint but failed to respond. He also received a copy of the Commission’s charge via certified mail but again failed to respond. Accordingly, the matter proceeded to the Board of Governors by default and Stutsman was found guilty. The Board recommended that Stutsman be suspended from the practice of law for thirty days, be required to attended the Ethics and Professionalism Enhancement Program and be referred to KYLAP.

Neither Stutsman nor the Office of Bar Counsel requested that the Supreme Court take review of the Board’s decision under SCR 3.370(7) and the Court declined to independently review the Board’s decision under SCR 3.370(8). After reviewing the record, analogous case law and Stutsman’s disciplinary history, the Court adopted the Board’s Findings of Fact, Conclusions of Law and Recommendations under SCR 3.370(9) and suspended Stutsman from the practice of law in the Commonwealth for thirty days.

D. Kentucky Bar Association v. David Cary Ford 

2017-SC-000099-KB April 27, 2017 

Opinion and Order of the Court. All sitting; all concur. Ford pleaded guilty in federal court to criminal charges of fraud and money laundering. He acted as the executor of seven estates between 2008 and 2015, from which he took approximately $1.7 million for his own personal benefit. The money Ford stole was intended for various charities and the decedents’ families.

The Inquiry Commission issued a two-count charge against Ford. All attempts to serve Ford were unsuccessful and service was finally completed via the KBA’s Executive Director under SCR 3.175(2). Ford never filed a response and the Board of Governors found Ford guilty of violating both SCR 3.130-8.4(b) and (c). The Supreme Court agreed with the Board’s findings and, given the nature of Ford’s violations and their gravity, agreed that permanent disbarment was the appropriate sanction. Accordingly, the Court ordered Ford permanently disbarred from the practice of law in the Commonwealth.

E. Christopher Lee Stansbury v. Kentucky Bar Association 

2017-SC-000100-KB April 27, 2017 

Opinion and Order of the Court. All sitting; all concur. Stansbury conducted a number of real estate closings and held himself out as being authorized to collect title insurance premiums on behalf of an insurance carrier when he had no such 7

authorization. In another matter, Stansbury advised a client that he had filed a QDRO, when he had not done so, and he failed to advise that client that his license had been suspended for unrelated violations of the Rules of the Supreme Court. The Supreme Court accepted the agreed to sanction of a two-year suspension with readmission contingent upon completion of a KYLAP assessment.

F. James David Johnson v. Kentucky Bar Association 

2017-SC-000114-KB April 27, 2017 

Opinion and Order of the Court. All sitting; all concur. Johnson admitted to six counts of violating the Kentucky Rules of Professional Conduct and moved the Court to impose the sanction of permanent disbarment. The KBA did not object to Johnson’s motion. Upon review, the Court agreed that the proposed sanction was appropriate and permanently disbarred Johnson from the practice of law in the Commonwealth.

SC: March 2017 Attorney Discipline Cases

Michael Thornsbury; James E. Isenberg; Thomas Steven Poteat; Brian Nathan Hopper; Franklin S. Yudkin; Timothy Michael Longmeyer

A. Kentucky Bar Association v. Michael Thornsbury 

2016-SC-000607-KB March 23, 2017 7

Opinion and Order of the Court. All sitting; all concur. Thornsbury was charged in the Southern District of West Virginia with a felony offense for conspiracy to violate the constitutional rights of another. The indictments stated that Thornsbury had engaged in criminal conspiracies in his role as West Virginia Circuit Judge to frame his secretary’s husband for crimes he did not commit following Thornsbury’s affair with his secretary. Thornsbury pled guilty and received a sentence of 50 months’ incarceration in federal prison. He also tendered his “Affidavit for Consent to Disbarment” in conjunction with his plea agreement.

The West Virginia Disciplinary Counsel concluded that Thornsbury violated numerous West Virginia judicial canons and the West Virginia Supreme Court of Appeals ordered that his license to practice law be annulled by voluntary consent. The Kentucky Bar Association filed a petition for reciprocal discipline under SCR 3.435. The Supreme Court of Kentucky ordered Thornsbury to show cause why he should not be permanently disbarred but he failed to comply. Accordingly, the Supreme Court permanently disbarred Thornsbury consistent with the order of identical discipline from West Virginia.

B. Kentucky Bar Association v. James E. Isenberg 

2016-SC-000663-KB March 23, 2017 

Opinion and Order of the Court. All sitting; all concur. In 2011, Isenberg was suspended from the practice of law for five years. Despite his suspension, Isenberg continued to actively practice law. The Inquiry Commission eventually filed a charge against Isenberg but he failed to answer. The charge was submitted as a default case and the Board of Governors unanimously recommended that Isenberg be permanently disbarred from the practice of law. Upon reviewing the record, the Supreme Court agreed and permanently disbarred Isenberg from the practice of law in the Commonwealth.

C. Kentucky Bar Association v. Thomas Steven Poteat 

2016-SC-000664-KB March 23, 2017 

Opinion and Order of the Court. All sitting. Minton, C.J.; Cunningham, Hughes, Keller, Venters, and Wright, JJ., concur. VanMeter, J., concurs in part and dissents in part by separate opinion. Poteat, who had been suspended for failure to comply with CLE requirements, did not advise clients involved in a real estate dispute of his suspension, and he continued to represent them. As part of that representation, Poteat negotiated a settlement, part of which he paid out of his own funds. In exchange for that payment, Poteat attempted to convince the clients to sign a waiver of any potential legal malpractice claims they might have against him. Poteat did not advise the clients to seek legal representation regarding the proposed waive. The KBA charged Poteat with six violations and the Board voted to find him guilty of five of those violations, including failure to advise the clients of his suspension, practicing law while suspended, engaging in conduct involving dishonesty, and failing to respond to requests for information from the KBA. The majority of the Board members voted to recommend a one-year suspension to run consecutively with Poteat’s existing CLE suspension. The Court adopted the Board’s recommendation.

D. Kentucky Bar Association v. Brian Nathan Hopper 

2016-SC-000669-KB March 23, 2017 

Opinion and Order of the Court. All sitting. Minton, C.J.; Hughes, Keller, VanMeter, Venters, and Wright, JJ, concur. Cunningham, J., concurs in result only. The Board of Governors found Hopper guilty of violating SCR 3.130-1.3, -1.4(a)(4), -1.15(b), -1.16(d), and -8.1(b) and recommended that he be suspended from the practice of law for 181 days. Hopper did not respond to the initial complaint or the charge that was filed by the Inquiry Commission.

Neither Hopper nor Bar Counsel filed a notice of appeal. Accordingly, under SCR 3.370(9), the Supreme Court adopted the recommendation of the Board of Governors, finding Hopper guilty of all six charged counts and suspending him from the practice of law for 181 days.

E. Kentucky Bar Association v. Franklin S. Yudkin 

2017-SC-000022-KB March 23, 2017 

Opinion and Order of the Court. All sitting; all concur. The Indiana Supreme Court suspended Yudkin from the practice of law for a period not less than 90 days, without automatic reinstatement. As a consequence, the KBA moved for the Supreme Court of Kentucky to order Yudkin to show cause why he should not be subject to reciprocal discipline. Yudkin responded by requesting that reciprocal discipline not be imposed. But the Court concluded that Yudkin failed to provide a legally sufficient reason why the Court should not impose reciprocal discipline, finding that his conduct, which consisted of affirmatively misrepresenting facts to the trial court and the appellate court, did not “warrant substantially different discipline” in Kentucky under SCR 3.434(4)(b). Accordingly, the Court ordered Yudkin suspended from the practice of law in the Commonwealth for a period not less than 90 days, beginning December 8, 2016.

F. Timothy Michael Longmeyer v. Kentucky Bar Association 

2017-SC-000025-KB March 23, 2017 

Opinion and Order of the Court. All sitting; all concur. Longmeyer pled guilty to engaging in an unlawful “kickback” scheme involving the Kentucky Employees’ Health Plan and was sentenced to 70 months’ imprisonment. He moved the Court for leave to resign under terms of permanent disbarment, a motion the Court granted.

SC: February 2017 Attorney Discipline Cases

Marc Alan Wells

Marc Alan Wells v. Kentucky Bar Association
2016-SC-000662-KB February 16, 2017 

Opinion and Order of the Court. Minton, C.J.; Hughes, Keller, VanMeter, Venters, and Wright, JJ., concur. Cunningham, J., not sitting. The charges against Wells arose from his failure to keep personal and client funds separate; his failure to maintain an adequate balance in his escrow account; and his failure to timely respond to requests for information from the KBA. Wells admitted the violations. However, he noted that he had been involved in no prior disciplinary proceedings during his more than 40 years of practice and that he had taken steps to ameliorate any harm when he realized his errors. The parties agreed that a 61 day suspension probated for one year with conditions was appropriate. The conditions included receipt of no additional charges within the probationary period and completion of 6 the Ethics and Professionalism Enhancement Program. The Supreme Court concurred that the agreed to sanctions were appropriate and issued an order consistent with that agreement.