News: The Bad News Continues for Another of the Fen Phen Lawyers as Attorney Stan Chesley Found Liable to the Claimants for part of the $42 million

It seems the bad news just won’t stop for the lawyers associated with “the” fen Phen settlement.  Attorneys Gallion & Cunningham will be in prison for a long time, 25 and 20 years respectively.  Attorney Melbourne Mills may be the “man” who is free but at a cost to his reputation of having to claim he was too drunk to know what the other lawyers were doing (and thus acquitted).   A young lawyer, David Helmers, lost his license to practice law while following the instructions of attorney Gallion in meeting with clients.

Photo of Stan Chesley from the Cincinnati.com archives.

And now, the “Master of Disaster” attorney Stan Chesley  who  was found not criminally culpable has been held civilly liable after Boone Circuit Court Judge James Schrand found Chesley jointly and severally liable to the 440 plaintiffs from the fen phen case.

SC: April 2014 Attorney Disciplinary Matters

Here are the attorney disciplinary matters handled by the Kentucky Supreme Court for the month of April 2014 William Perry McCall,  Travis Olen Myles, Jr.,  Daniel Edward Pridemore, Clyde F. Johnson,  E. William David Rye,  F. James P.S. Snyder,  &  G. Clifford Branham,.

Download (PDF, 28KB)

 

News: “Eric Deters: I quit practicing Kentucky law” from cincinnati.com

detersHere is story on Kentucky lawyer Eric “Bulldog” Deters’ decision not to practice law in Kentucky.  Period.  Story was in Cincinnati.com:

Eric Deters: I quit practicing Kentucky law

Controversial lawyer Eric Deters has followed through on his threat to stop practicing law in Kentucky. The Supreme Court of Kentucky’s Character and Fitness Committee filed Monday documents that noted Deters called and emailed it documents to “withdraw his application” for reinstatement and would “never again practice in Kentucky.” “The reason I have retired is that I quite simply no longer want to practice law in a state where its governing body, the KBA (Kentucky Bar Association), is on a continuous mission to ‘get’ me,” Deters noted in a release emailed Monday to The Enquirer. Deters’ messages to the Supreme Court of Kentucky came a day before he was scheduled to have a conference with that court’s disciplinary committee to discuss his status.

Click on title for complete story (if still available on line).

In a follow up story, “Ohio Supreme Court suspends attorney Eric Deters

A reciprocal agreement between the Kentucky and Ohio Supreme Courts resulted in attorney Eric Deters being suspended for 60 days in Ohio for the same actions that resulted in his suspension last year in Kentucky.

Deters isn’t accused of any new wrongdoing. He was suspended for 60 days last year by the Kentucky Supreme Court for violating the code of conduct for attorneys. Because of that suspension and the reciprocal disciplinary agreement, the Ohio Supreme Court also suspended Deters on Monday for 60 days for the same conduct.

Deters, of Independence, actually asked the Ohio Supreme Court to start his suspension now so he could get it out of the way.

Click on heading for entire story (if still available on line).

CAUSES of ACTION: Legal Negligence and “Suit within a suit” resolution of underlying premises liability claim moots legal negligence suit (Freeman vs. Becker Law Office)

Legal Malpractice, Premises Liability and “Suit Within a Suit”

Tonia Freeman vs. Becker Law Office, Kevin Renfro, Bubalo Heistand & Rotman, and Dianne E. Sonne
COA, Not Published 1/10/20014

This is a legal malpractice claim against a private organization operating from a government building at Fort Knox which was treated as a “suit within a suit”. After a jury rendered a verdict that the private organization (Toys for Tots) was not in possession of the premises where Tonia Freeman was an employee and received her injuries on a slip and fall, the legal negligence claim premised upon the premises liability basically went away.

DEFENSES: Application of collateral estoppel as defense to legal malpractice and fraud claims (Simpson vs. Chesley, COA NPO 11/27/2013

Legal Malpractice, Breach of fiduciary duty and fraud. Defense of collateral estoppel.
Simpson vs. Stanley M. Chesley
Kenton;  Judge Gregory Bartlett
Affirming
COA, Not Published 11/27/2013

VANMETER, JUDGE: Appellants1 appeal from a Kenton Circuit Court order granting Appellees’ motion for summary judgment and dismissing Appellants’ claims of breach of fiduciary duty, professional negligence (legal malpractice), and fraud. We agree with the circuit court that Appellants’ claims are barred by the doctrine of collateral estoppel, and affirm its order.

DEFENSES: Statute of limitations applied to legal negligence claim, date of discovery vs. date of occurrence (BDT Products vs. Higgs, Fletcher & Mack, COA NPO 12/13/2013)

Legal Malpractice. Statute of Limitations.
BDT Products, Inc. vs. Higgs, Fletcher & Mack
12/13/2013 COA NPO
Following a careful review, we find the circuit court erred when it concluded that BDT’s legal negligence complaint was timely filed within the applicable one- year statute of limitations. Accordingly, we reverse that portion of the circuit court’s May 24, 2011 order and remand for entry of an order consistent with this opinion (2011-CA-001131). Likewise, we affirm the circuit court’s August 1, 2011 order on statute-of-limitations grounds (2011-CA-001475). Because resolving the cross-appeal is dispositive of all other issues, BDT’s remaining direct appeal, 2011-CA-001088, is denied as moot.

Attorney Disciplinary Decisions from Kentucky Supreme Court for May 2013

Columns from Louisville, Kentucky IMG_0963

 

The Supreme Court took disciplinary actions in the following matters:

The following pages were extracted from the May 2013 Monthly Summary of Published Decisions from Kentucky Supreme Court with links and more information on each of the cases.

ATTORNEY DISCIPLINE:

A. Kentucky Bar Association v. Donald A. Maze
2012-SC-000166-KB May 23, 2013

Opinion of the Court. Cunningham, J., not sitting. Minton, C.J.; Abramson, Noble and Venters, JJ., concur. Scott, J., dissents by separate opinion in which Keller, J., joins. Maze, the former Bath County Attorney, pled guilty to vote buying and perjury charges and was sentenced to twenty-one months in prison. In connection with these matters, the KBA charged Maze with violating SCR 3.130-8.3(b) (committing criminal act that reflects adversely on honesty, trustworthiness or fitness as a lawyer) and SCR 3.130-8.3(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). Maze admitted he violated both rules. The KBA also charged Maze with violating SCR 3.130-3.4(c) (knowingly disobeying an obligation under the rules of a tribunal) and SCR 3.130-5.5(a) (practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction), for actions taken after he received notice of his suspension from the practice of law following his guilty plea on the vote buying and perjury charges. Again, Maze admitted that he violated these rules.

The KBA further charged Maze with violating SCR 3.130-3.4(a) (unlawfully obstructing another party’s access to evidence by destroying a document having potential evidentiary value): SCR
3.130-5.3(b) (ensuring the conduct of a non- lawyer over whom the lawyer has supervisory power is compatible with the professional obligations of the lawyer); SCR 3.130-3.5(a) (influencing a judge, juror, prospective juror or other official by means prohibited by law); SCR 3.130- 8.3(b) (criminal act that reflects adversely on honesty, trustworthiness or fitness as a lawyer); and SCR 3.130-8.3(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), based on allegations that Maze attempted to tamper with the jury and destroy evidence in his federal vote buying case. Maze denied violating these rules.

The Trial Commissioner and Bar Counsel recommended permanent disbarment, while the Board of Governors recommended a five-year suspension. Upon review of the entire record, the Rules of Professional Conduct and relevant case law, the majority of the Court found permanent disbarment to be the appropriate sanction for Maze’s misconduct. Accordingly, Maze was permanently disbarred from the practice of law in the Commonwealth and ordered to pay all costs associated with the disciplinary proceedings.

B. Kentucky Bar Association v. Eric C. Deters
2012-SC-000666-KB May 23, 2013
2012-SC-000667-KB May 23, 2013

Opinion of the Court. Scott, J., not sitting. Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., concur. The Board of Governors recommended that Deters be found guilty of four counts of misconduct relating to two separate disciplinary files and that he be suspended from the practice of law for a total of 60 days. After reviewing the record, including Deters’ disciplinary history, the Court adopted the recommendation of the Board and suspended Deters for 60 days.

C. Kentucky Bar Association v. Kathleen S. Hardy
2012-SC-000799-KB May 23, 2013

Opinion of the Court. All sitting; all concur. Hardy was suspended from the practice of law in Ohio for failing to comply with an order to undergo a psychiatric examination. The KBA petitioned the Supreme Court to impose reciprocal discipline under SCR 3.435(4). A show cause order was issued in February 2013 and Hardy failed to respond. Accordingly, the Court suspended Hardy from the practice of law in the Commonwealth until Hardy files proof that she has completed the requirements as ordered by the Ohio Supreme Court.

D. Kentucky Bar Association v. Murray J. Porath
2012-SC-000832-KB May 23, 2013

Opinion of the Court. Abramson, J., not sitting. Minton, C.J.; Cunningham, Keller, Noble, Scott and Venters, JJ., concur. A client paid Porath $50 to write a collection letter. Although Porath provided the client with a receipt on the back of a business card, he never wrote the collection letter and did not return the funds or respond to the client. Porath was served with, and signed for, a Bar complaint and a subsequent reminder letter by certified mail. However, Porath never responded to the complaint. Thereafter, the Inquiry Commission filed a charge against Porath. Against, Porath failed to respond. The Inquiry Commission charged Porath with violation of four Rules of Professional Conduct: SCR 3.130-1.3 (failing to act with reasonable diligence); SCR 3.130-1.4(a)(4) (failing to promptly reply to reasonable requests for information); SCR 3.130-1.16(d) (failing to promptly refund any advance payment of fees that had not been earned); and SCR 3.13-8.1(b) (failing to respond to a lawful demand for information from a disciplinary authority). The Board found that Porath had violated the rules and recommended a 30-day suspension from the practice of law. The Court adopted the Board’s decision and suspended Porath for 30 days.

E. Kentucky Bar Association v. Rodney S. Justice
2013-SC-000154-KB May 23, 2013

Opinion of the Court. All sitting; all concur. In 2006, Justice was suspended from the practice of law for 30 days. The Office of Bar Counsel objected to his reinstatement due to pending disciplinary complaints, which eventually resulted in Justice receiving two additional suspensions of 60 days and 30 days. In 2010, Justice filed an application for reinstatement with the Kentucky Office of Bar Admissions. In support of his reinstatement, Justice attached a Certificate of Good Standing from the West Virginia State Bar Association. While his application for reinstatement was pending, Justice testified before the Boyd Circuit Court. When asked if he was suspended from the practice of law, Justice testified that he was not suspended but was not actively practicing law. The Office of Bar Counsel considered this testimony to be false and the Inquiry Commission issued a two- charge count alleging violations of SCR 3.130-3.3 (a)(1) (knowingly making a false statement of fact or law to a tribunal) and SCR 3.130-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). A trial commissioner found Justice not guilty of both counts on the basis that Justice’s statements were not false because at the time of his testimony he was licensed to practice law in West Virginia. The Office of Bar Counsel appealed and the Board of Governors found Justice guilty of both counts and recommended a 30-day suspension. The Court agreed with the Board that Justice’s testimony was false and accepted the recommended sanction.
F. Kentucky Bar Association v. Murray J. Porath
2013-SC-000162-KB May 23, 2013

Opinion of the Court. Abramson, J., not sitting. Minton, C.J.; Cunningham, Keller, Noble, Scott and Venters, JJ., concur. A client paid Porath $300 to defend him in a civil action. The client specifically asked Porath to request an extension of time to answer the plaintiff’s complaint, but Porath failed to do so, even after plaintiff’s counsel agreed to an extension. Porath also failed to enter an appearance in the case, respond to plaintiff’s discovery requests, and return the client’s money and his file. A copy of the Bar complaint was sent to Porath’s roster address but was returned as unclaimed mail. It was eventually forwarded to an address in Florida, where Porath signed for the letter but did not respond to the complaint. Porath also signed for and accepted the Inquiry Commission’s charge at the Florida address. Again, he failed to respond. The Inquiry Commission’s charge alleged five violations of the Rules of Professional Conduct: SCR 3.130- 1.3 (failing to act with reasonable diligence in representing a client); SCR 3.130- 1.4(a)(3) and (4) (failing to keep a client reasonably informed); SCR 3.130- 1.16(d) (failing to return unearned fee); SCR 3.130-8.1(b) (failing to respond to a lawful demand for information from a disciplinary authority); and SCR 3.130- 3.4(c) (failing to maintain a valid Bar roster address, as required by SCR 3.175(1)(a)). Because Porath never responded, the matter went to the Board of Governors as a default case. The Board found Porath guilty of the five violations as charged and recommended a 181-day suspension, based in part on Porath’s disciplinary history. Neither Porath nor the Office of Bar Counsel filed for review. So the Court adopted the decision of the Board under SCR 3.370(9).

G. Kentucky Bar Association v. Kimberly S.I. Gevedon
2013-SC-000163-KB May 23, 2013

Opinion of the Court. All sitting; all concur. The Inquiry Commission issued a six-count charge against Gevedon, alleging violations of SCR 3.130-1.3 (failing to act with reasonable diligence); SCR 3.130-1.4(a)(3) (failing to keep a client reasonably informed); SCR 3.30-1.4(a)(4) (failing to promptly reply to reasonable requests for information); SCR 3.130-1.16(d) (failing to promptly refund any advance payment of fees that had not been earned); SCR 3.130-8.1(b) (failing to respond to a lawful demand for information from a disciplinary authority); and SCR 3.130-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The Board of Governors found Gevedon guilty of all six counts of professional misconduct and, after considering her prior discipline, recommended that she be suspended from the practice of law for 30 days and be referred to KYLAP. The Court adopted the Board’s decision and recommended sanction and suspended Gevedon from the practice of law for 30 days, with the requirement that she schedule an assessment with KYLAP.

H. Kentucky Bar Association v. Earl C. Mullins, Jr.
2013-SC-000169-KB May 23, 2013

Opinion of the Court. All sitting; all concur. The Inquiry Commission charged Mullins with nine counts of misconduct arising from his representation of a criminal defendant: SCR 3.130-1.5(a) (charging an unreasonable fee); SCR 3.130- 1.8(a) (entering into a business transaction with a client); SCR 3.130-1.8(e) (providing financial assistance to a client); SCR 3.130-1.15(a) (failing to keep a client’s property separate from the lawyer’s own property); SCR 3.130-1.15(b) (failing to promptly notify client of receipt of funds or deliver funds to a client); SCR 3.130-1.15(c) (commingling funds); SCR 3.130-1.4(a) (failing to keep client reasonably informed); SCR 3.130-1.4(b) (failing to reasonably explain matters to a client); and SCR 3.130-8.4(c) (engaging in dishonesty, fraud, deceit, or misrepresentation). Mullins admitted his guilt to all nine violations and further admitted that he should be disciplined for the totality of his misconduct. The Office of Bar Counsel and Mullins agreed to submit the case to the Board of Governors and filed Joint Stipulations that included the stipulated facts and a proposed disciplinary sanction of a 90-day suspension from the practice of law, with 60 days probated for a period of two years on the condition that Mullins receive no additional charges of misconduct during that period. The Board found Mullins guilty of all nine-counts and agreed with the stipulated sanction. The Court adopted the Board’s recommendation, noting that the proposed discipline was both appropriate and supported by previous disciplinary decisions.

I. David Won-Ihl Son v. Kentucky Bar Association
2013-SC-000213-KB May 23, 2013

Opinion of the Court. All sitting; all concur. The Inquiry Commission charged Son with three violations of the Rules of Professional Conduct arising from his representation of a client in a personal injury case: SCR 3.130-1.3 (failing to act with reasonable diligence); SCR 3.130-1.4(a) (failing to keep client reasonably informed); and SCR 3.130-1.15(a) (failing to keep a client’s property separate from the lawyer’s own property). Son admitted to the above violations and negotiated a sanction with Bar Counsel for a 30-day suspension, probated for two years upon the condition that he attend and successfully complete the KBA’s Ethics and Professionalism Enhancement Program (“EPEP”). After reviewing the record and the applicable law, the Court found the negotiated sanction to be appropriate and suspended Son from the practice of law for 30 days, probated for two years.

J. W. Craig Aulenbach v. Kentucky Bar Association
2013-SC-000222-KB May 23, 2013

Opinion of the Court. All sitting. Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., concur. Scott, J., dissents. The Inquiry Commission issued a three-count charge against Aulenbach, alleging violations of SCR 3.130-1.15(b) (failing to promptly notify client of receipt of funds or deliver funds to a client); SCR 3.130-1.15(c) (commingling funds); and SCR 3.130-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation). Aulenbach admitted violating each of the rules and moved the Court to impose the sanction of a 30-day suspension from the practice of law, probation for one year, with conditions. The KBA did not object to Aulenbach’s motion. The Court agreed that the sanction was appropriate and suspended Aulenbach from the practice of law for 30 days, probated for one year.

K. Robert M. Alexander v. Kentucky Bar Association
2013-SC-000229-KB May 23, 2013

Opinion of the Court. Minton, C.J., not sitting. Abramson, Cunningham, Keller, Noble, Scott and Venters, JJ., concur. Alexander moved the Court to impose the sanction of 30-days suspension for his violations of SCR 3.130-1.3 (failing to act with reasonable diligence); SCR 3.130-1.15(a) (failing to keep a client’s property separate from the lawyer’s own property); and SCR 3.130-1.16(d) (failing to promptly refund any advance payment of fees that had not been earned). The Court agreed that the sanction was appropriate and suspended Alexander from the practice of law for 30 days, with conditions.

L. William R. Palmer, Jr. v. Kentucky Bar Association
2013-SC-000233-KB May 23, 2013

Opinion of the Court. All sitting; all concur. Palmer moved the Court to enter an Order resolving the pending disciplinary proceedings against him by imposing a one-year suspension from the practice of law, to be served concurrently with the suspension ordered in Kentucky Bar Ass’n v. Palmer, 391 S.W.3d 373 (Ky. 2013). Palmer’s motion reflected a negotiated settlement with the Kentucky Bar Association. After reviewing the allegations and Palmer’s disciplinary record, the Court concluded that the agreed sanction was adequate and suspended Palmer from the practice of law for one year.

SCOKY: Conley, Keller, and Jones on short list of nominees to fill open Seat on Supreme Court

male.female.blankThree names are going to the Governor to fill the vacancy on the Supreme Court following Justice Will Schroeder’s retirement – oseph E. Conley Jr. of Villa Hills, Michelle M. Keller of Fort Mitchell and Allison Emerson Jones of Prospect.

FRANKFORT, Ky. — The Judicial Nominating Commission, led by Chief Justice of Kentucky John D. Minton Jr., today announced nominees to fill the vacant Supreme Court seat in the 6th Supreme Court District. The district is composed of 21 counties in the Northern Kentucky area. The vacancy was created by the retirement of Justice Wil Schroder effective Jan. 17, 2013.

The three attorneys named as nominees to fill the vacancy are Joseph E. Conley Jr. of Villa Hills, Michelle M. Keller of Fort Mitchell and Allison Emerson Jones of Prospect.

Conley is a partner with the law firm of Raines, Buechel, Conley & Dusing in Florence, of which he is a founder. He is also an adjunct law professor at the University of Cincinnati College of Law. He received his juris doctor from the University of Kentucky College of Law.

Keller is a Kentucky Court of Appeals judge. She previously served as a nurse and is an adjunct professor at the Xavier University School of Nursing. She received her juris doctor from Northern Kentucky University Salmon P. Chase College of Law.

Jones is an administrative law judge for the Kentucky Department of Workers’ Claims. She received her juris doctor from the University of Kentucky College of Law.

The counties in the 6th Supreme Court District are Bath, Boone, Bracken, Campbell, Carroll, Fleming, Gallatin, Grant, Harrison, Henry, Kenton, Lewis, Mason, Nicholas, Oldham, Owen, Pendleton, Robertson, Shelby, Spencer and Trimble.

To Kill a Mockingbird – LBA Movie and CLE Event on Oct. 18, 2012

To Kill a Mockingbird – LBA Movie and CLE Event on Oct. 18, 2012

The Louisville Bar Association is sponsoring one of my favorite legal movies – “To Kill a Mockingbird” on October 18, 2012.  You can also obtain one hour of continuing legal education credit on ethics for $30.  Else, enjoy the movie, soda and popcorn.

For quotes from Atticus Finch in the movie, click here.

Although the movie focuses on racial prejudice in a small southern town, several statements from Atticus apply to any and all Kentucky trial attorneys whether in court, mediation, negotiation, deposition for the simple reason they are simple time enduring truth.

A few of my favorite quotations are:

  • “You never really understand a person until you consider things from his point of view – until you climb into his skin and walk around in it.”
  • “The one thing that doesn’t abide by majority rule is a person’s conscience.”
  • “Courage is not a man with a gun in his hand. It’s knowing you’re licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.”
  • “Best way to clear the air is to have it all out in the open.”

This is the way cases should and need to be tried.  A lawyer representing someone who was injured from a car accident or automobile collision needs to understand what his or her client is feeling, suffering, and dealing with in order to fully represent him.  Some say spend time with the client at their home, with their family, with the life they must now live and you will discover the inner turmoils of your client better than asking questions and jotting down answers at  your office.  Gerry Spence says you have to crawl into your client’s skin.  T’is oh so true.

As for following your conscience rather than the dictates of others, the Bible says it most eloquently in Isaiah 30:21 (ERV)

21 If you wander from the right path, either to the right or to the left, you will hear a voice behind you saying, “You should go this way. Here is the right way.”

Courage is fighting the unwinnable fight and pursuing justice for those for whom it has been denied.

Being an Atticus in Today’s Practice
Join the local bar members at the Bar Center on October 18 at 1 p.m. for a FREE screening of the critically-acclaimed film To Kill A Mockingbird.

Robert Mulligan’s To Kill a Mockingbird is a 1962 film adaptation of Harper Lee’s Pulitzer Prize winning autobiographical novel. The film is a searing portrayal of race and prejudice told through the eyes of a little girl. Set in a small, racially divided Alabama town in the 1930s, the story focuses on scrupulously honest, highly respected lawyer Attics Finch (Gregory Peck). Finch puts his career on the line when he agrees to represent Tom Robinson (Brock Peters), a black man accused of raping a white woman.

Following the screening, Professor Al Gini (Loyola University) and Dr. Barry Padgett (Belmont University) will lead a discussion of issues raised by the film.

This optional CLE program with One (1) hour of ethics credit (pending) is only $30. [to enroll click here]

Cancellation policy: All meetings must be cancelled 24 hours in advance to avoid forfeiting the registration fee.

Program Host: The Louisville Bar Association and The Waterman Fund Grant
Time Details: 1:00 PM through 4:30 PM
Registration begins 12:45 p.m.
Place: Louisville Bar Center, 600 W. Main St.
Credit: 1.0 CLE Ethics Hours – Approved
Course Pricing: MEMBERS: $30.00
NON-MEMBERS: $30.00
Course Material Only:
Lunch Options: No Lunch Available
To Kill a Mockingbird – LBA Movie and CLE Event on Oct. 18, 2012