OP-ED: Six Traps You Should Watch Out for in Auto Accident Releases, or Get Ready To Stand Up to A Bully

man in hood at night, want to break the shutter

From DepositPhotos.com

Here are six TRAPS to watch out for when the liability insurer wants to settle and your client is anxious for the money.  Items in a release the liability insurer may present in a brute show of force, stealthily added to the release when never discussed,  or just assumed that’s they way all their releases must be signed.  Oh yeah, get ready for the old saw that “everyone else signs them” so what’s your problem.

This post is not exhaustive; nor are all the traps shown or even addressed in detail.  But, just keep an eye on those good neighbors who are always by your side all around Kentucky.

After Coleman vs. Bee Line’s pronouncement by the Kentucky Supreme Court, it is pretty easy to get the insurers to make sure the release excludes PIP and does not include indemnification for PIP.

However be ever vigilant since some of the following issues were/are never brought up when reaching a settlement number, and it might even be wise to include express language in your settlement demands to insure some of these items stay off the negotiating table.

Such areas include attempts by the liability insurer to include

  • Waiver of PIP benefits;
  • Release of consortium claims when not representing the spouse;
  • Global releases of “any and all other” persons etc.;
  • Indemnity language of claims against the tortfeasor by persons other than the settling claimant;
  • Non-negotiated indemnity language, period:
  • Attorney agreeing to indemnify (ru serious??);
  • Confidentiality and non-disclosure clauses;
  • Additional items so no “meeting of the minds” or a suit needed to enforce the agreement.

I consider these clauses to be objectionable and potentially bad faith or a breach of fiduciary duty by their very terms or the manner in which they end up in the release submitted with the check.

After the fact insertion of language which was not agreed upon is a no brainer violation, but the sneaky trick can be a problem when a client thinks the case has settled and just say “show me the money!”

Most recently, the Kentucky Department of Insurance came down hard on liability insurers who attempt to obtain waivers of reparation benefits as part of the liability settlement.  Such moves should always be reported to the Department of Insurance, at a minimum; and may put the claimant’s attorney in a position to advise her client of the potential claim too.  However, that is a decision each attorney must make for themselves.

Click here for DOI Complaint Information.

Here are six items to watch out for in those darn releases, most of which are boilerplate with the adjuster either not knowing the consequences of the terms or not having the authority on his/her own to redact certain language.  Thus adding delay to getting the client the agreed upon settlement sums.

1.  Waiver of PIP benefits.

These should never be in a release, and with the publication of Advisory Opinion 15-02m must be reported; and if you think it amounts to a bad faith violation or a breach of the Unfair Claims Settlement Practices Act, then another whole can of worms is opened through no fault other than the insurer (liability, UM, UIM).

The DOI Opinion added regulatory muscle to the complaints of many claimants’ counsel when it addressed the illegal practice of some liability insurers attempting to sneak a release of PIP (reparation benefits) as part of a personal injury liability settlement in a car accident case.

For the complete text of Advisory Opinion 15-02, then click here for our earlier post which contains the entire opinion and which is a must read for injury lawyers and insurance lawyers alike.  Insurance defense lawyers would be doing a disservice if they did not update their clients of the consequences of this explicit instruction.

Furthermore, the vast majority of bodily injury (“BI”) settlements involve third parties. By requiring that the injured person give up any claim to BRB, the insurer insists that the injured person forego the rights to a benefit the injured person paid for and is provided by the injured person’s own insurer. This has the effect of forestalling subrogation by the injured person’s insurance company through the Kentucky Insurance Arbitration Association. Such action has nothing to do with the injured party’s case, or the compensation the at-fault party’s insurer is legally obligated to pay. Subrogation rights for BRB payments belong to the BRB obligor (the injured party’s insurer). Furthermore, pursuant to KRS 304.39-140(3) collection of damages from the liability of a second person, a self-insurer or an obligated government shall have priority over the rights of the subrogee for its reimbursement of BRB. Liability coverage is all that should be at issue in a settlement of a BI case. The Department discourages efforts to abrogate an individual’s ability to get medical treatment by employing such a practice. This is particularly troubling in light of the fact that health insurance will not pay for treatment where other insurance is, or should be, available.

Additionally, contract case law is clear that if there exists no “meeting of the minds,” a settlement document or any other contract could be declared invalid. Breach of contract law would apply in this situation, especially if the insurer inserts this clause into a release document when no such provision had been agreed upon by the parties. This could be construed as a potential violation of the Kentucky Insurance Code, especially in the case of an unrepresented party who trusts that the language in the release reflects the settlement agreement.

2.  Loss of Consortium Claims.

If you do not represent the spouse of the injured claimant, then what is the basis for a liability insurer requiring as part of the settlement agreement that the unrepresented spouse sign the release or even the settlement check?  None.  But this goes back to an old insurance axiom that a closed file is a happy file, and apparently closing by means of making a claimant and their attorney do the liability insurer’s bidding.

In addition, no contract means no authority for the unrepresented spouse.  I won’t even go into the ethical issues, but the simple contractual requirements creating the legal representation not to mention the requirement of “actual” authority to settle a claim as required in Clark v. Burden, 917 S.W.2d 574 (Ky. 1996).

 And to add insult to malpractice, all this bidding would be expected at no cost to the insurer for crying out loud.

3.  The Global Release of all other persons.

It is clear that a release of all other persons is a release of all other persons per Nationwide vs. Abney.  This language usually surfaces for the first time when the boilerplate release is tendered with the check.  Fortunately, after Abney, there is usually little pushback by the insurer when caught.

Of course, I have always wondered about the potential quicksand for the insurer who shows more concern about non-claimant third parties then their own insureds when concluding a case.  Of course, the higher the amount of the settlement (and especially when limits are exhausted) means the greater exposure for any breach.  But, for the very, very small settlements, then why bother with the risk?

In any event, this language finds its way in releases to this day; and especially in those insurers outside the Commonwealth.

4.  Indemnity against claims by other claimants.

Indemnification has the potential of Alice Looking through the Looking Glass with indemnity, upon indemnity which then swallows up the entire settlement and potentially the claimant taking over the obligation of the liability insurer.  Rarely happens, or can even potentially happen, but why risk it.  Any indemnification should be negotiated specifically since indemnity is not a release.   See Frear vs. P.T.A. Industries, 103 S.W.3d 99 (Ky. 2003).

The inclusion of an indemnity clause started the problems in Coleman vs. Bee Line Courier Service, 284 S.W.3d 123 (Ky. 2009).

And, Crime Fighters Patrol v. Hiles, 740 S.W.2d 936 (Ky. 1987) highlights how indemnity upon indemnity is a dangerous thing.

Now, limited indemnification for certain claims and caps on the amount are another thing when addressing government super liens but always think about the risk that indemnity might exceed the client’s total settlement amount.  Ouch.

5.  Attorney personally agreeing to indemnification.

There are several ethics opinions condemning this practice (eg., Arizona; Connecticut;  Montana; Illinois; IndianaOklahoma; Ohio; Tennessee;  W.Va.;  DRI Article on MSP and Indemnity).  Some of these opinions even specifically address AND prohibit attorney from personal indemnification in MSPRC/Medicare subrogation liens..

6.  Confidentiality clauses.

Two problems with this one.  Ethically and taxability, plus potential of losing entire settlement recovery following a casual conversation while in line at the super market.

The Kentucky Supreme Court has already expressed a distaste for these clauses:

Kentucky Bar Association v. Unnamed Attorney 

2012-SC-000388-KB December 19, 2013 

Opinion of the Court. All sitting. Minton, C.J.; Keller, Noble and Venters, JJ., concur. Abramson, J., concurs by separate opinions. Scott, J., concurs in part and dissents in part by separate opinion in which Cunningham, J., joins.

During the court of Unnamed Attorney’s representation of a fellow attorney in a disciplinary matter, Unnamed Attorney negotiated a settlement between his client and the complaining party. The terms of the negotiated settlement resulted in charges of professional misconduct against Unnamed Attorney because the terms of the settlement agreement required the complaining party to refuse to cooperate voluntarily with the Kentucky Bar Association in any investigation into the matter. The Trial Commissioner adjudged Unnamed Attorney guilty of professional misconduct for entering into such an agreement with a witness but the KBA Board of Governors overturned that determination on appeal. Neither party appealed but the Court exercised its discretion to review under SCR 3.370(8). On review, the Court reversed, in part, and affirmed, in part, the decision of the Board of Governors, finding Unnamed Attorney guilty of violating SCR 3.130-3.4(g) but not guilty of violating SCR 3.130-3.4(a) and issuing a private reprimand.

Taxability:  See, Amos v. Commissioner, T.C. Memo. Docket No. 13391-01, 2003-329, December 1, 2003 (tinyurl.com/9d25phz).

For more reasons why Confidentiality Clauses are not a good thing, then read this Article from the American Bar Association:  “Confidentiality in Settlement Agreements Is Bad for Clients, Bad for Lawyers, Bad for Justice”

Do what you may, but hope this spurs some thoughts and maybe even some DOI complaints when necessary.

Now, there are more, many more traps in settlements, and this only scratches the surface.  And much can be said about Coots vs. Allstate and UIM releases and notices.  But that’s another day.

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.

Mike O’Connell, Jefferson County Attorney, and the Price of “Loyalty”.

“It is money, money, money! Not ideas, not principles, but money that reigns supreme in American politics.”

 Robert C. Byrd

A recent op-ed from the Courier-Journal discussed how elected government officials in  Jefferson County have expected their employees to contribute financially to their re-election coffers.  For example, the Jefferson County Attorney’s office seems to have a long history of expected contributions from the attorneys working in that office going back as far as Bruce Miller.  Basically,  money has been contributed over the years by attorneys employed at the Jefferson County Attorney’s Office to assist their boss’s election efforts.  A practice that is not new, not novel, not regulated, and worse yet apparently not acknowledged beyond a simple denial by the current occupant of that political office – Mike O’Connell.

The Courier-Journal calls attention to this practice and asks its readers if this is what we want or expect from a County Attorney.  Whether called campaign contributions or  tokens of employee “loyalty”, should it continue?  

As an Army Judge Advocate and Army Officer occupying a position of trust and public service, we were held to a standard even higher than the criminal and ethical codes. Accepting money from those who work for you was and is absolutely prohibited.  We were expected to even avoid even the  “appearance of impropriety”.

The Jefferson County Attorney’s Office has a large staff.  A very large staff with over 400 attorneys.  All of us have read the stories on how difficult it has been for government lawyers to pay their school loans and raise a family on their government salaries with some even delivering pizza on their own time in the evenings.

Well, the Courier-Journal has issued the challenge and concluded its opionion-editorial piece with the following:

Mr. O’Connell can deny he seeks money from employees. But he can’t deny the appearance that employees feel pressured to give.

His current fundraising may not violate the law. It may skirt the Metro ethics ordinance.

But like so many things in politics, it doesn’t pass the smell test.

So why not limit contributions from employees? Or just stop taking them?

That way his employees could devote their full loyalty to the public and keep all of their hard-earned paychecks for doing so.

Sometimes the Courier-Journal irritates me with the reactionary tone of their editorials and even their stories.  However, the position that the news media occupies as the “Fourth Estate” aka the “press” can never be understated.  And although everyone seems to fawn over the new digital age, there is just some power and authority found in the written word on a piece of paper that is not found in audio or video.

You may not always like or appreciate the stories, but most of us will acknowledge the value they provide in accountability with the gathering of facts, interviews of those involved, and a marshaling of all that has been accumulated with a conclusion and opinion which you can either agree or disagree.  Those of us who blog part time owe a debt to the hard work that it takes to uncover these stories which allow bloggers like myself to throw in out two cents worth of opinion.  Thank you.

Here is the op-ed piece.  Hopefully, the Courier will keep it available on-line for some time.

Mike O’Connell’s Loyal Employees

Ah, for the good old days of Jefferson County politics where the “2 percent” club flourished in local offices and employees didn’t have to wonder how much to donate to the election fund of the boss.

Former Jefferson County Attorney J. Bruce Miller called his request for 2 percent of employees’ pay the “Assistant County Attorney Voluntary Fund.”

And former Jefferson County Sheriff Jim Greene made it easy by tucking envelopes into the paycheck of each employee that bore their names and a calculation of 2 percent of their pay.

But times have changed.

Today, it seems heavy-handed, if not outright wrong, for elected bosses to suggest employees must donate a fixed amount for the privilege of keeping their jobs.

So Jefferson County Attorney Mike O’Connell has come up with a new euphemism for employee support, calling it “loyalty.”

“I tell people that I hire that I seek competency, diligence and loyalty,” he told The Courier-Journal’s Andrew Wolfson. “And loyalty means they support me and this office in all things we do, including my election.”

His staff of nearly 400, including 120 prosecutors, has been amazingly loyal, according to campaign finance records of Mr. O’Connell, a Democrat who is running for re-election to his second full term.

Nearly half of the $201,000 Mr. O’Connell has amassed since his last election in 2010 came from assistant county attorneys and other employees in his office.

And this was for a race in which he didn’t even have an opponent until lawyer Karen Faulkner stepped forward one day before last week’s filing deadline.

Click on the above heading for the rest of the CJ Post.

 

SCOKY: Attorney Disciplinary Actions from Jan and Feb.. 2013

The SCOKY took disciplinary actions in the following matters:

  • KBA vs. Brian Patrick Curtis
  • KBA vs. Gail Smith Slone
  • KBA vs. Andrew L. Holton
  • Timothy A. Parker vs. KBA
  • Brandon J. Lawrence vs. KBA
  • KBA vs. William R. Palmer, Jr.
  • Robert F. Wright vs. KBA
  • KBA vs. Jack F. Durie, Jr.
  • Clifford Alan Branham vs. KBA
  • Travis Olen Myles, Jr. vs. KBA
  • KBA vs. Steven O. Thornton

ATTORNEY DISCIPLINE: [the following summaries were updated based upon the monthly summaries from SCOKY]. 5.14.2013
A. Kentucky Bar Association v. Brian Patrick Curtis
2012-SC-000672-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. The Board of Governors found Curtis guilty of violating SCR 3.130-1.4(a)(4) (failure to comply with client’s reasonable requests for information); SCR 3.130-1.15(b) (failure to provide an accounting of client funds); SCR 3.130-1.16(d) (failure to refund the unearned portion of the advance fee payment upon termination of representation); and SCR 3.130-8.1(b) (failure to respond to bar complaint). The Board took Curtis’ current charges and his prior discipline into consideration and recommended a 60-day suspension from the practice of law. Neither the KBA nor Curtis sought review by the Court. Accordingly, the Court adopted the Board’s recommendation.
B. Kentucky Bar Association v. Gail Smith Slone
2012-SC-000673-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. The Board of Governors found Slone guilty of violating SCR 3.130-1.3 (failure to act with reasonable diligence); SCR 3.130- 1.4(a)(4) (failure to comply with client’s reasonable requests for information); and SCR 3.130-1.16(d) (failure to refund the unearned portion of the advance fee payment upon termination of representation). The Board took into consideration Slone’s current charges and her prior discipline, which included a current suspension for non-payment of dues and a prior, 30-day suspension for failing to competently represent and communicate with clients, and recommended that she be suspended from the practice of law for a period of 61 days. Neither the KBA nor Slone sought review by the Court. Accordingly, the Court adopted the Board’s recommendation.
C. Kentucky Bar Association v. Andrew L. Holton
2012-SC-000710-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. The Board of Governors found Holton guilty of violating SCR 3.130-1.1 (failure to provide competent representation); SCR 3.130-1.3 (failure to act with reasonable diligence); SCR 3.130-1.4(a)(3)(failure to keep the client reasonably informed); SCR 3.130-1.4(a)(4) (failure to respond to requests for information); and SCR 3.130-8.1(b) (failure to respond to bar complaint), all arising out Respondent’s representation of parties in a contract
dispute. The Board took into consideration Holton’s current charges and his prior discipline and recommended that he be suspended from the practice of law in the Commonwealth for 30 days. Neither the KBA nor Holton sought review by the Court. Accordingly, the Court adopted the Board’s recommendation.
D. Timothy A. Parker v. Kentucky Bar Association
2012-SC-000778-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Parker moved the Court to issue a public reprimand with conditions for his admitted violation of SCR 3.130-1.3 (failure to diligently provide the agreed-upon legal services after he was paid by a client); SCR 3.130-1.4(a)(4) (failure to comply with client’s reasonable requests for information); SCR 3.130-1.15(a) (failure to deposit the advance fee payment paid by his client into an escrow account until earned); and SCR 3.130-1.16(d) (failure to refund the unearned portion of the advance fee payment upon termination of representation). The KBA did not object to the sanction, which was negotiated pursuant to SCR 3.480(2). The Court agreed that a public reprimand was an appropriate punishment for Parker’s misconduct and declined further review.

E. Brandon L. Lawrence v. Kentucky Bar Association
2012-SC-000779-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Lawrence moved the Court to enter an Order resolving pending disciplinary matters against him, including his admitted violation of SCR 3.130-1.4(a)(4) (reasonable requests for information); SCR 3.120-1.15(a) (safekeeping of property), and SCR 3.130-7.09(1) (contact with prospective clients). The motion was the result of a negotiated agreement between Lawrence and the KBA and the parties agreed that a 30-day suspension was an appropriate sanction. The Court agreed and suspended Lawrence accordingly.
F. Kentucky Bar Association v. William R. Palmer, Jr.
2012-SC-000787-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. The trial commissioner recommended that Palmer be suspended from the practice of law for five years for misconduct addressed in four disciplinary files. Neither the KBA nor Palmer filed a notice of appeal so the matter was forwarded to the Court for entry of a final order. The Court found the trial commissioner’s report to be supported by the record and the law and adopted the recommendation for a five-year suspension and permanent monitoring by the Kentucky Lawyers’ Assistance Program thereafter.
G. Robert F. Wright v. Kentucky Bar Association
2012-SC-000813-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Wright petitioned the Court to impose the sanction of a 30-day suspension probated for three years for his violation of SCR 3.130-1.1 (failure to competently represent a client); SCR 3.130-3.5(c) (engaging in conduct intended to disrupt a tribunal); and SCR 3.130-8.3(b) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer). The KBA did not object to the proposed negotiated sanction and the Court granted Wright’s motion.
H. Kentucky Bar Association v. Jack F. Durie, Jr.
2012-SC-000824-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Durie was charged with violating SCR 3.130- 8.3(b) and SCR 3.130-8.3(c) as a result of a conviction on a felony theft charge in Florida. The Board of Governors recommended that he be permanently disbarred. Neither the KBA nor Daurie filed for review and the Court adopted the Board’s recommendation.
I. Clifford Alan Branham v. Kentucky Bar Association
2013-SC-000027-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Branham applied for restoration to membership. He was suspended from the practice of law on December 28, 2009, for failure to pay the late fee associated with the late payment of his 2008/2009 bar dues. Branham’s application for restoration was rejected by the Board of Governors and referred to the Character and Fitness Committee for further proceedings under SCR 2.011 and 2.040. In April 2010, the Character and Fitness Committee sent Branham a questionnaire, which he failed to return. Branham failed to further communicate with the KBA or the Committee and in October 2012 his application for restoration was denied as incomplete and that he had failed to meet his burden of proof to establish his present qualifications to practice law pursuant to SCR 3.500(5). The Board of Governors also recommended that the application for restoration be disapproved and that the Court enter an Order denying the application. The Court adopted the recommendation and decision of the Board and Branham’s application for restoration was denied.
J. Travis Olen Myles, Jr. v. Kentucky Bar Association
2013-SC-000045-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur.

Myles was hired by Sharon Walker to represent her in a disability matter. Walker was awarded partial benefits and Myles filed an appeal on her behalf. Myles acknowledged that, though it was his belief that he sent notice to her, Walker may not have received notice of the outcome.  Furthermore, Myles acknowledged taking a job with the Social Security Administration, which precluded him from representing Walker any further.  Myles, however, failed to notify Walker of his new employment, and failed to return her medical records and other paperwork upon ending his representation.
Myles was served with a Bar Complaint along with a letter advising him of the need to submit a written response. After Myles failed to respond, he was served with a reminder letter and a second copy of the complaint, and was again notified
of his need to respond. Myles admitted that he failed to submit a written response to the complaint and the Inquiry Commission charged him with two counts:

Count I, violating SCR 3.130-1.16(d) (failure to refund the unearned portion of the advance fee payment upon termination of representation); and
Count II, violating SCR 3.130-8.1(b) (failure to respond to bar complaint). Myles acknowledged that he engaged in the misconduct in violation of the Rules of Professional Conduct and agreed to the imposition of discipline for his violations.
In light of his admissions, Myles and the KBA agreed to a negotiated sanction pursuant to SCR 3.480(2) which would impose a public reprimand. The Court  held that the negotiated sanction was consistent with discipline imposed in similar
cases and ordered Myles be publicly reprimanded.
K. Kentucky Bar Association v. Steven O. Thornton
2012-SC-000024-KB February 21, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. The Inquiry Commission consolidated three separate disciplinary cases against Thornton, involving fourteen alleged violations of the Kentucky Rules of Professional Conduct. The Trial Commissioner found that Thornton had committed eleven of the fourteen alleged violations and recommended a 180-day suspension from the practice of law and that Thornton refund over $7,000 in fees to two clients. The Board of Governors adopted the Trial Commissioner’s recommendations and the Court adopted the Board of Governor’s recommendations, suspending Thornton from the practice of law for 180 days and requiring him to refund fees to two of his clients.

The following pages were extracted from the January 2012 minutes of SCOKY with links and more information on each of the cases.

You can click for just the extract below; or you can click here for the entire minutes for just February 2013. There were no minutes for January 2013 from SCOKY.

Download (PDF, Unknown)

SCOKY: Attorney Disciplinary Actions from Dec 2012

The SCOKY took disciplinary actions in the following matters:

  • Rodney McClintock vs. KBA
  • Matthew Bowling vs. KBA
  • Danielle Brown vs. KBA

The following pages were extracted from the December 2012 minutes of SCOKY with links and more information on each of the cases.

You can click for just the extract below; or you can click here for the entire minutes for just December 20, 2012.

Download (PDF, Unknown)

Ethics Complaint Filed by Chris Thieneman against Judge

Chris Thieneman

Chris Thieneman

LOUISVILLE, Ky. (WHAS11) – A former candidate for the Kentucky state senate says he wants a ruiling in a case over his eligibility.

A judge heard arguments before the November election to decide whether Chris Thieneman was eligible to run.

The ruling in question is whether Thieneman lived in the 37th district where he was running.

Thieneman says in addition to requesting a ruling, he also filed an ethics complaint against the judge.

Thieneman lost the election to Democratic state senator Perry Clark.˜

NB.  Story did not reference judge, but  here is link at Kentucky Law Review “Ed Springston asks “Does Judge Charlie Cunningham have ethics problems?”

 

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

Causes of Action: Violation of ethical rule does not create a cause of action (Rose v. Winter, Yonker & Rousselle, COA, NPO, 7/27/12)

The following decision which was not published provides an interesting start on the interplay between our ethics rules and a cause of action.  At first blush and a quick read of the Supreme Court Rule (Code of Professional Responsibility 7.10) 3.30, one might have thought that a claim of illegal or illegal solicitation of clients would have permitted this claim to adjudicated in the courts rather than going through the disciplinary process first.

But not so fast.

The COA held that bar complaint must be filed.  Thus, a favorable decision presumably must be obtained, first.  And which would presumably set up the date of accrual of the cause of action for statute of limitations purposes.

Would the actual decision by the bar and eventually the Supreme Court on the matter should it wind up that far now serve as res judicata for the particular issue of the solicitation leaving the trial court with nothing further to do than order the fees returned?

“[D]ecisions of administrative agencies acting in a judicial capacity are entitled to the same res judicata effect as a judgment of a court.” Godbey v. University Hospital of the Albert B. Chandler Medical Center, Inc., 975 S.W.2d 104, 105 (Ky.App. 1998).

What was the old equity rule?  Justice delay, justice denied.

Keep in mind that the claims in this lawsuit were never addressed or resolved.  So do not assume there was or is an ethics violation.

Eg., SCR 3.130(7.10) provides:

If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.

643.  ATTORNEY CLIENT.  FORFEITURE OF ATTORNEY FEES FOR VIOLATIONS OF RULES OF PROFESSIONAL RESPONSIBLITY ADDRESSED.
ROSE (JAMES), ET AL.
VS.
WINTER, YONKER & ROUSSELLE, P.S.C., ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000613-MR
NOT TO BE PUBLISHED
JEFFERSON

KELLER, JUDGE: The Appellants, James Rose (James) and Christopher Rose (Christopher), appeal from an order of the Jefferson Circuit Court dismissing their complaint against the Appellees, Winters, Yonker & Rousselle, P.S.C.; Bill Winters; Marc Yonker; and Donald Kannady. For the following reasons, we affirm.

FACTS
The Appellants filed a complaint against their former attorneys, the Appellees, seeking forfeiture of all attorney fees paid by them to the Appellees for alleged violations of the Kentucky Supreme Court Rules of Professional Conduct. They also sought class certification for similarly situated former clients of the Appellees.

On appeal, the Appellants argue that the trial court erred when it concluded that it lacked jurisdiction to determine whether the Appellees illegally or unethically solicited clients. Specifically, they argue that SCR 3.130(7.10) authorizes a client to file a civil suit against their attorney for recovery of all fees when the attorney illegally or unethically solicits them as a client. We disagree.

In this case, there were no allegations made in the complaint that the Appellees were negligent in handling the Appellants’ personal injury claims or in negotiating the settlements. Instead, the Appellants’ claims are based on violations of the Kentucky Supreme Court Rules of Professional Conduct. We are unaware of any authority supporting this type of cause of action. In fact, in Hill v. Willmott, 561 S.W.2d 331, 333-34 (Ky. App. 1978), this Court addressed a similar issue and concluded that the Rules of Professional Conduct do not create a private cause of action.

The sole remedial method for a violation of the Code is the imposition of disciplinary measures after a hearing by the Board of Governors of the State Bar Association for any “ . . . charges brought under this code as well as charges for other unprofessional or unethical conduct calculated to bring the bench and bar into disrepute.”
See R.A.P. 3.130. Nowhere does the Code of Professional Responsibility or the Rules attempt to establish standards for civil liability of attorneys for their professional negligence. This is not to say that a cause of action cannot be asserted for negligence on the part of an attorney. All we are holding is that the duty set forth in the Code and the Rules establishes the minimum level of competence for the protection of the public and a violation thereof does not necessarily give rise to a cause of action.

Id.

We note that the Preamble to SCR 3.130 also indicates that the Kentucky Supreme Court Rules of Professional Conduct do not create a private right of action. The Preamble states the following:

XXI.

Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.

(Emphasis added). Furthermore, as stated in Grigsby v. Kentucky Bar Ass’n, 181 S.W.3d 40, 42 (Ky. 2005), the Supreme Court of Kentucky “has the sole authority to admit and discipline attorneys.”

The Appellants argue that, despite the holding in Hill and the language in the Preamble, SCR 3.130(7.10) specifically provides for a civil action for recovery in this case. SCR 3.130(7.10) provides:

If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.

(Emphasis added).

As correctly noted by the trial court, the language of SCR 3.130(7.10)appears to presuppose that the appropriate disciplinary agency must first determine whether the lawyer illegally or unethically solicited a potential client in violation of SCR 3.130(7.09). Only after making the determination of unethical or illegal solicitation by the appropriate disciplinary agency does the rule make provision for forfeiture of fees under SCR 3.130(7.10). Therefore, we conclude that, while the rule provides for a cause of action to recover fees, it does not provide a cause of action to determine whether a solicitation in this case was illegal or unethical.

Finally, we note that the cases cited by the Appellants in support of their argument that Kentucky courts routinely decide whether ethical violations have occurred are distinguishable from this case. In Shoney’s, Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994), the issue was whether communications of plaintiff’s counsel with Shoney’s employees with knowledge that Shoney’s was represented by counsel was grounds for disqualification. The Shoney’s employees did not assert a private right of action for the alleged ethical breach by plaintiff’s counsel. Thus, Lewis is inapplicable to the instant case.

In Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), plaintiff’s counsel brought an action against his former client to enforce an attorney’s lien arising out of counsel’s representation of plaintiff under a contract that had been terminated by plaintiff prior to a settlement. The action was for enforcement of contractual rights and did not involve the Kentucky Supreme Court Rules of Professional Conduct. Therefore, Baker is also inapplicable to the instant case.

Appellants also cite to Bonar v. Waite, Schneider, Bayless & Chesley, No. 2007-CA-001374-MR, 2009 WL 3336065 (Ky. App. Oct. 16, 2009). Because the Supreme Court of Kentucky granted discretionary review in that case, it is not final. CR 76.28(4). Thus, the Appellants improperly cite to it, and we need not address it. However, we do note that the Bonar case involved a dispute between attorneys as to whether they were entitled to attorney fees. It was not a private action to enforce provisions of the Kentucky Supreme Court Rules. Therefore, it is inapplicable to the instant case.

CONCLUSION
For the foregoing reasons, we affirm the order of the Jefferson Circuit Court.

ALL CONCUR.

GOVERNMENT – Ethics: Turbyfill v. Executive Branch Ethics Commission (COA 11/20/2009)

Turbyfill v. Executive Branch Ethics Commission
2008-CA-001394 11/20/09 2009 WL 3878046

Opinion by Judge Wine; Judges Nickell and Thompson concurred.

The Court affirmed an order of the circuit court denying appellant’s petition for judicial review and declining to order dismissal of administrative proceedings opened by the Kentucky Executive Branch Ethics Commission (EBEC) for the purpose of sanctioning appellant. Although, appellant had been previously pardoned by the Governor, the EBEC filed “Allegations of Violations” in which it sought to fine appellant and publicly reprimand him for violating KRS 11A.020. The Court held that the allegation that appellant violated KRS 11A.020 was not criminal in nature and was collateral to the criminal proceedings for which he was pardoned. Therefore, the EBEC proceedings were not subject to the pardon.

The Court further held that the statutory scheme was not so punitive in purpose or effect so as to transform it into a criminal penalty. The Court rejected appellant’s argument that the pardon could not preclude civil actions by private individuals but could preclude civil actions by a state agency seeking to enforce violations of state law. First, because the EBEC proceeding was a collateral civil action, the pardon could not preclude its action. Second, the language of the pardon itself did not purport to include EBEC administrative actions.

Torts – Legal negligence, conflict of interest in insurance representation: Stephen R. Chappell, Individually and as partners and/or employees of Landrum & Shouse, et al. v. Kuhlman Electric Corp. AND Kuhlman Electric Corp. v. Chappell (SC 10/29/2009)

Stephen R. Chappell, Individually and as partners and/or employees of Landrum & Shouse, et al. v. Kuhlman Electric Corp. AND Kuhlman Electric Corp. v. Stephen R. Chappell, Individually and as partners and/or employees of Landrum & Shouse, et al.
2006-SC-000140-DG October 29, 2009
2006-SC-000144-DG October 29, 2009
Opinion by Special Justice Crittenden; Justice Noble and Justice Schroder
not sitting.

From 1977 until1988 Kuhlman Electric was covered under a workers’ compensation insurance policy issued by Amerisure. Among other things, the insurer agreed to provide legal representation to Kuhlman against workers’ compensation claims. In 1977, Burgess, a Kuhlman employee, was injured on the job and filed for benefits. Amerisure retained the firm of Landrum & Shouse to defend Kuhlman. In 1988, Kuhlman ended its relationship with Amerisure and opted to become selfinsured. Amerisure remained obligated to Kuhlman for future claims that arose from the period of coverage.

In 1991, Burgess sought to reopen his award and Amerisure again retained Landrum & Shouse to defend Kuhlman. Landrum & Shouse filed a motion on Kuhlman’s behalf to add Kuhlman as a party, suggesting that Burgess may have actually suffered a new injury rather than reaggravating the one from 1977. The ALJ granted the motion and Burgess subsequently filed a motion of his own claiming he had suffered a new injury. Since Kuhlman was now a self-insured entity, it, and not Amerisure, would be liable for a new injury, Kuhlman objected to Burgess’ new injury theory. However, the ALJ held that Kuhlman was estopped from raising a defense on that point since the motion to join Kuhlmann as a party had originally suggested the 1991 injury was new. The ALJ subsequently ruled Burgess had incurred a new injury and Kuhlman was ordered to pay him benefits.

In 2001, Kuhlman filed suit claiming legal malpractice against Landrum & Shouse and bad faith against Amerisure. The trial court awarded summary judgment to Landrum & Shouse and Amerisure. On appeal, the Supreme Court rejected Landrum & Shouse’s argument that Kuhlman Electric / Self-Insured was somehow a different entity from Kuhlman Electric—one to whom Landrum & Shouse owed no duty. The Court held that the fact that Kuhlman Electric was Landrum & Shouse’s client did not change once Kuhlman’s interests became adverse to Amerisure’s. However, the Court held that even if Landrum & Shouse had withdrawn from representing Kuhlman once the conflict of interest became apparent, it would not have changed the outcome of the case since the medical evidence that the injury was new would not have changed. To prevail on a legal negligence claim, a party must show that but for the attorney’s negligence the result of the case would have been different. Since Kuhlman could not meet that standard, the Court held that summary judgment had been proper. Special Justice Vesper (joined by Justice Scott) concurred in part and dissented in part, contending that if Landrum & Shouse had shared its conclusions about the “new injury theory” with Kuhlman, it might not have been estopped from later defending that point, thus possibly avoiding the adverse ruling. The minority would have remanded back to the trial court for further consideration of the motion for summary judgment.