Ben Cowgill's Legal Ethics Newsletter

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My "site statistics" show that this online newsletter has received 71,722 visits since it was launched about two years ago, including 2,364 visits over the past thirty days. Thanks for your interest!

I also continue to appreciate the recognition this newsletter has received on other websites and blogs. Most recently, I noticed that it had been added to a list of online legal ethics resources on the website of the New York State Defenders Association.

Order in 'consensual discipline' case is further evidence that the 'new' Supreme Court of Kentucky is looking closely at disciplinary prosecutions

Today the Supreme Court of Kentucky issued a public disciplinary order in which a majority of the Court decided, sua sponte, to dismiss a Count of the Charge to which the Respondent had agreed to admit guilt. The ruling is significant because it is further evidence that the "new" Supreme Court of Kentucky is examining disciplinary prosecutions closely, even when it receives a case on an unopposed motion for "consensual discipline."

The Court's public Order explains that the case (2007-SC-000086-KB) involved two letters that a workers' compensation attorney sent to his client's doctor. In those letters, the attorney asserted that he was entitled to a "fee" based on the benefit he had conferred on the doctor by securing the doctor's right to reimbursement. One of the letters also stated that "if you desire that we collect charges owed to you at the same time we collect our fee, we will be agreeable to representing your interest without any additional charge to you."

The Order also states that the attorney acknowledged that the letters "incorrectly implied that he was entitled to a fee from the treating physician, when in fact he was simply asserting a claim that has yet to be established by Kentucky law." Likewise, in regard to the letter which offered to represent the doctor's interest, the Court's public Order states that the attorney "did not intend to engage in improper solicitation or the advertisement of legal services, but realizes that the language of his letter improperly implied as such."

The KBA charged the attorney with six different counts of professional misconduct, including dishonest conduct, improper solicitation of employment and violation of the Attorney Advertising Rules. After the Charge had been issued, and pursuant to "consensual discipline" communications with the KBA, the attorney moved the Court to enter a Public Reprimand finding him guilty under all of the counts except the one that alleged dishonest conduct. The KBA did not object to the disposition of the case on that basis. The case was therefore submitted to the Court as an agreed disposition under SCR 3.480(2).

Nevertheless, a majority of the Court decided, sua sponte, to dismiss the Count which alleged that the attorney had violated the Attorney Advertising Rules by failing to submit the letter that offered to represent the physician to the Attorneys' Advertising Commission. The majority found that there was insufficient evidence to support that particular count, probably because it concluded that the letter did not constitute an "advertisement" for legal services, regardless of whether it did constitute an improper solicitation.

The significance of the decision lies in the fact that the Court did not simply accept the negotiated resolution of the case, but instead reached its own conclusion about whether a particular Count of the Charge actually fit the facts. It's good news for attorneys charged with disciplinary violations, because it indicates that the "new" Court is looking at disciplinary prosecutions closely, even in cases of "consensual discipline."

It's not unusual for a disciplinary charge to include a number of different counts that allege multiple violations of the Rules of Professional Conduct based on the same operative set of facts. That can be frustrating and intimidating for an attorney who recognizes that he made a mistake but does not agree that he violated some of the Rules mentioned in the charge. All too often, it's difficult to get any of the counts removed without defending the case on the merits. But it appears that the "new" Supreme Court is willing to examine the propriety of all the counts included in a charge, even in a case submitted on an unopposed motion for consensual discipline.

Ten upcoming CLE presentations, on the Internet and in person

The months of spring and early summer are always a busy time for CLE here in Kentucky, because Kentucky lawyers are required to meet annual CLE requirements by June 30 of each year. See Supreme Court Rule (SCR) 3.661.

I am planning to offer three "Last Chance" Ethics CLE seminars live on the Internet during the weeks of June 18 and June 25. Details are provided below.

I have also agreed to make live, in-person presentations at seven seminars and conferences between now and June 30. Information about those presentations is also provided below.

If you would like me to make an ethics presentation at another seminar or conference, please feel free to write me at ben@cowgill.com.

"Last Chance" Ethics CLE, delivered directly to your desk during "drop dead" time

Supreme Court Rule (SCR) 3.663 (7) permits a member of the Kentucky Bar to acquire up to six (6) CLE credits each year by participating in accredited technologically transmitted CLE activities.

Pursuant to that Rule, I am planning to offer three 2-hour Ethics CLE programs live over the Internet on Wednesday through Friday, June 20, 21 and 22, with repeat presentations on Tuesday through Thursday, June 26, 27 and 28. Each presentation will run from Noon until 2:00 pm Eastern Time. Participants will be able to listen and participate by telephone while viewing a live presentation on their computers (high-speed Internet connection required).

The registration fee for each seminar will be $59, the same fee charged by the Kentucky Bar Association for its "teleseminars."

Registration information will be provided here at KentuckyLegalEthics.com at least sixty days before the presentation dates.

The topics of the seminars will be:

"How to Analyze and Manage a Potential Conflict of Interest Under the Kentucky Rules of Professional Conduct" (June 20 and 26);
"Simple Tools for Law Office Risk Management" (June 21 and 27); and
"How to Avoid a Bar Complaint (And How to Handle the One that Comes Your Way Anyway)" (June 22 and 28).

Each presentation will be submitted for CLE approval at least sixty days in advance.

Live, in-person presentations already "inked in"

I will also be making CLE presentations at the following seminars and conferences:

On March 8 in Louisville, I will be presenting three topics, "Commencing the Attorney-Client Relationship," "Managing Prospective Clients," and "Terminating the Relationship: When, Why and How," as part of a 3-hour seminar titled "Attorney-Client Relationship Building for Small Practices," sponsored by National Business Institute. Click here to register for the morning presentation, or here to register for the afternoon presentation.
On April 19 in Louisville, I will be making a 90-minute presentation on "The Top Ten Ethical Risks of Domestic Relations Practitioners" at the annual Family Law seminar of the Kentucky chapter of the American Academy of Matrimonial Lawyers. You can learn more about that seminar from Louisville divorce lawyer Diana Skaggs, who is President Elect of the Kentucky Chapter of AAML.
I will also be making a presentation on "Advertising Your Personal Injury Practice: Ethical Considerations" as part of a seminar on Auto Litigation sponsored by the Kentucky Justice Association (formerly the Kentucky Academy of Trial Attorneys). That seminar will be presented:

On May 18 in Lexington,
On June 1 in Bowling Green,
On June 15 in Covington, and
On June 19 in Louisville.

You can obtain more information about those seminars from the Kentucky Justice Association (formerly the Kentucky Academy of Trial Attorneys).

Finally, on June 29 in Fairfax, Virginia, I will be making a presentation about Ethical Considerations in Legal Marketing as part of a two-day "Legal Marketing Super Conference" organized by lawyer and legal marketing consultant Ben W. Glass.

Congratulations to Chief Deputy Bar Counsel Jay R. Garrett

Congratulations to Jay R. Garrett, who has been appointed Chief Deputy Bar Counsel at the Kentucky Bar Association. Mr. Garrett has served as a Deputy Bar Counsel for many years, and has also served as the "intake manager" in the Office of Bar Counsel for the past several years.

The KBA Office of Bar Counsel has eight full-time attorneys at this time. That number includes Deputy Bar Counsel and Client Assistance Program Manager Frank Burnette, who recently joined the Office of Bar Counsel in connection with the KBA's decision to move the Client Assistance Program into the Office of Bar Counsel.

Cartoon in Bench and Bar magazine prompts questions about balance and good taste

UPDATE:

Louisville attorney Michael Stevens has now posted an "op-ed" piece about the same cartoon on The Kentucky Law Review. His piece begins as follows:

"Imagine my surprise when I discovered that my dues to the Kentucky Bar Association were being used, not only to heap insults on a significant segment of our membership -- those of us who represent the injured -- but also to take a pro-business position on tort reform to deprive the citizens in this Commonwealth of their constitutional right to a jury trial for their injury claims."

His piece concludes:

"Now imagine what is going to be done about it. Better yet, call or write the Board of Governors and tell them that you find such humor inappropriate on the pages of our state bar journal. You can find a list of them here."

ORIGINAL POST:

A fellow Kentucky lawyer has raised questions about a cartoon that appeared in the January 2007 issue of the Kentucky Bar Association's Bench & Bar magazine.

The cartoon depicts a destitute person sitting on a sidewalk with a sign that reads, "WILL SUE FOR FOOD." A passerby comments to her friend, "It's just the effects of tort reform, I suppose."

The destitute person is apparently a personal injury lawyer, not a potential plaintiff in a personal injury lawsuit. He is not suffering from any apparent injuries; in particular, he does not have any bandages or medical appliances. If he did, the cartoon would raise a different set of issues. But it seems from his appearance, his sign, and the comment of the passerby that he is a personal injury lawyer who must now "sue for food" because of "the effects of tort reform."

The cartoon was brought to my attention by a Kentucky personal injury lawyer who found it to be offensive and insulting. He raised questions of balance, good taste and the KBA's role in promoting the image of the profession.

It does seem surprising that the leadership of the Bar would permit a cartoon of that nature to be published on the pages of the state bar journal. After all, the cost of publishing Bench & Bar is borne by the entire membership of the Kentucky Bar, including personal injury attorneys.

Most lawyers have thick skins and a healthy sense of humor. But Bench & Bar is read by other people as well. For example, it's placed on the reading racks in law school libraries, and also finds its way into the hands of newspaper reporters. What message does the cartoon send to a law student who is considering a career in plaintiff's personal injury practice? And what message does it send to the public at large, regarding the organized bar's attitude toward the plaintiff's bar?

But the message it sends to non-lawyers is not the only consideration. Kentucky lawyers who handle personal injury cases need to be confident that the Kentucky Bar Association is their Bar Association, no less than it is the Bar Association of lawyers in large firms who defend personal injury lawsuits. The publication of the subject cartoon hardly instills such confidence in their minds.

It is one thing, of course, for a bar magazine to publish "point/counterpoint" articles about the pros and cons of tort reform, like the two excellent articles that appeared in the October 2006 issue of Bench & Bar. Content of that nature promotes the intelligent discussion of tort reform among members of the bar. But it would seem to be another thing entirely for the official magazine of a mandatory state bar association to include a cartoon that depicts a lawyer as a street person who will "sue for food" because of "the effects of tort reform."

At the very least, it suggests that tort reform would severely impact the financial viability of personal injury practice. That's a dubious proposition, because the general viability of personal injury practice does not depend on earning contingent fees in those occasional and unique cases where the total settlement or judgment would be limited to any significant degree by the tort reform proposals that have received serious consideration in state legislatures.

But the problem doesn't stop there, because the cartoon also suggests that personal injury lawyers are people who would "sue for food" if they had to. In that way, it contributes to the notion that personal injury lawyers encourage their clients to bring lawsuits, and perhaps also to the notion that many of those lawsuits are unfounded. As any lawyer knows, the Rules of Professional Conduct include provisions which are designed to ensure that clients make the ultimate decisions about filing lawsuits [SCR 3.130(1.2)] and that lawyers do not participate in filing frivolous claims [SCR 3.130(3.1)].

It seems especially surprising because the leadership of the Kentucky Bar has frequently expressed concern about the need to improve "the image of the profession." Some leaders have also condemned advertisements for legal services which they consider to be "tasteless."

Indeed, it was only three months ago, in the October 2006 issue of Bench & Bar, that KBA President Robert C. Ewald found it necessary to explain that "we cannot regulate good taste" in the field of attorney advertising.

The leadership of the Bar can regulate what appears in Bench & Bar magazine. Yet here, three month later, we find a cartoon that contributes to a negative image of the profession and also raises legitimate questions about balance and good taste. Someone apparently concluded that the cartoon was timely because it related to the subject matter of the "point/counterpoint" articles that appeared in the October 2006 issue. But timeliness is clearly not equivalent to appropriateness.

Needless to say, the cartoonist is entitled to his personal opinion about personal injury lawyers. The issue, however, is whether his cartoons (and specifically the one discussed here) are appropriate content for the official publication of a mandatory state bar.

The membership of the KBA Board of Governors includes respected attorneys who handle personal injury cases on the plaintiff's side. For that reason, there is no reason to believe that the leadership of the Bar is actually biased against personal injury lawyers. But that is not the question. The question is whether Bench & Bar magazine creates a different impression when it publishes a cartoon like the one in question.

Stated another way, one can only wonder how those Board members would feel if one of their law clerks showed them the cartoon in question and asked them whether it fairly represents the attitude of the organization they oversee.

Lawyer regulation in the context of a 'unified' state bar

The January 2007 issue of the Kentucky Bar Association's Bench & Bar magazine contains an excellent article by Jane H. Herrick, the KBA's Assistant Director for Continuing Legal Education, regarding the history of lawyer regulation in Kentucky prior to 1974. See "Lawyer Regulation and the Movement Toward a Unified Bar in Kentucky," Bench & Bar, Volume 71, Number 1, at page 5 (January, 2007).

Ms. Herrick's article is a scholarly piece of research and a service to the Bar. I am aware that she began her research several years ago, during the time she was serving as Deputy Bar Counsel, and I am glad to see the product of her efforts appear in Bench & Bar magazine.

For clarity, however, it should be noted that a "unified bar" does not automatically or necessarily mean that attorney disciplinary matters are handled by a state bar association, even when the association is an agency of the state's highest court. In fact, the American Bar Association recommends a different approach to the handling of disciplinary matters, even in a state like Kentucky that has a "unified" state bar and even when the state bar association is an agency of the court.

What makes the Kentucky Bar a "unified" state bar

In a nutshell, a "unified" state bar is one where membership in the state bar association is synonymous with holding a license to practice law in the state. It stands in contrast to a "voluntary" state bar association, where a lawyer can hold a license to practice law in the state without being a member of the state bar association.

The Kentucky Bar is a unified state bar. That fact is readily apparent from the Supreme Court Rules that govern the practice of law in Kentucky and, in particular, from the text of Supreme Court Rule 3.030. Paragraph "(1)" provides:

"All persons admitted to the practice of law in this state shall be, and they are, members of the [Kentucky Bar Association] upon the completion of the prerequisites under Rule 2.100." (Emphasis added)

In other words, a lawyer becomes a "member" of the Kentucky Bar Association, as a matter of law, by virtue of being admitted to the practice of law in Kentucky. Consequently, there is rarely any question as to whether a Kentucky lawyer is a "member" of the Association; rather, the question is typically whether he or she has complied with the obligations of membership, including the obligation to pay dues, satisfy continuing education requirements and comply with the Kentucky Rules of Professional Conduct, all as set forth in other provisions of Supreme Court Rule 3.

As indicated above, however, the creation of a "unified" state bar does not automatically or necessarily mean that the state bar association plays any decision-making role in the attorney disciplinary process. In fact, the American Bar Association recommends otherwise.

"Lawyer Regulation for New Century:" The Report of the ABA Commission on Evaluation of Disciplinary Enforcement

In 1989, the ABA created a blue-ribbon commission called the Commission on Evaluation of Disciplinary Enforcement (commonly known among legal ethics attorneys as "the McKay Commission"). It directed the Commission "to conduct a nationwide evaluation of lawyer disciplinary enforcement and to provide a model for responsible regulation of the legal profession into the twenty-first century."

Three years later, in 1992, the ABA House of Delegates adopted the final Report of that Commission. It then proceeded to publish the Report as a book titled "Lawyer Regulation for a New Century: Report of the Commission on Evaluation of Disciplinary Enforcement." The book is available for purchase from the ABA.

The Introduction to the Report stated, in part:

The Need for Direct and Exclusive Judicial Control of Lawyer Discipline

"To strengthen judicial regulation of the profession, it must be distinguished from self-regulation. Control of the lawyer discipline system by elected officials of bar associations is self-regulation. It creates an appearance of conflicts of interest and of impropriety. In many states, bar officials still investigate, prosecute and adjudicate disciplinary cases. The state high court should control the disciplinary process exclusively. It should appoint disciplinary officials who are independent of the organized bar. The [state's highest court] should oversee the customary system with as much care and attention it does to decide cases." (Emphasis in original)

Likewise, "Recommendation 5" of the Report stated, in part:

Recommendation 5: Independence of Disciplinary Officials

"All jurisdictions should structure their lawyer disciplinary systems so that disciplinary officials are appointed by the highest court of the jurisdiction or by other disciplinary officials who are appointed by the Court. Disciplinary officials should possess sufficient independent authority to conduct the lawyer discipline function impartially:

5.1: Elected bar officials, their appointees and employees should provide only administrative or other services for the disciplinary system that supports the operation of the system without impairing the independence of disciplinary officials.

5.2: Elected bar officials, their appointees and employees should have no investigative, prosecutorial, or adjudicative functions in the display process."

In its official commentary on Recommendation 5, the Commission noted that:

"State and local bar officials provided the impetus for the development of ethical standards and disciplinary mechanisms. Bar officials have also volunteered years of dedicated service to be this merry function. These recommendations should in no way be taken as a derogation of that dedication and service. The recommendations are a recognition of basic principles of checks and balances and of separation of powers. A lawyer can properly serve the profession is an elected bar officials and a has an appointed disciplinary adjudicator -- but not simultaneously.

...

Several state bar associations have asked whether this recommendation would eliminate the justification for unified state bar associations under Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.1d 1 (1990). This concern is unfounded. The Court in Keller clearly distinguishes those activities that do and do not justify the imposition of mandatory dues for unified state bar membership. ...

...

The Commission recognizes that unified bars can appropriately perform non-prosecutorial and non-adjudicative functions that are essential to the disciplinary system. These are clearly "activities connected with disciplining members of the bar" under Keller.

...

Thus, under Keller unified state bar activities other than lawyer discipline or ethics can justify the existence of a unified bar. ...

...

Therefore, [ Recommendation 5] in no way threatens the unified bar's existence under the rule of Keller. To the contrary, the expanded system of regulation proposed by the Commission expands the justification for the unified bar's existence under Keller."

[Emphasis in original]

In further support of that analysis, the Commission provided a proposed table of organization which showed how a unified state bar association would be separate from the attorney disciplinary process under Recommendation 5. Click here to view the ABA's proposed table of organization for a unified state bar association and a separate attorney disciplinary system (PDF file).

The ABA Model Rules for Lawyer Disciplinary Enforcement

More recently, in 2002, the ABA House of Delegates adopted the 2001 Edition of the ABA Model Rules for Lawyer Disciplinary Enforcement (hereinafter "the Model Disciplinary Rules") The Model Disciplinary Rules track the recommendations of the Commission on Evaluation of Disciplinary Enforcement ("the McKay Commission") quoted above.

In particular, Model Disciplinary Rule 2 provides for the creation of "one permanent statewide agency to administer the lawyer discipline and disability system." It also provides that "no official of the [state bar] shall have the right to appoint [any persons who perform prosecutorial or adjudicative functions] or serve in an ex officio capacity."

The official commentary on the Rule states, in part:

"The disciplinary system should be controlled and managed exclusively by the state's highest court and not by state or local bar associations for these compelling reasons. First, the disciplinary process should be directed solely by the disciplinary policy of the court and its appointees and not influenced by the internal politics of bar associations. Second, the disciplinary system should be free from even the appearance of conflicts of interest or impropriety. When elected bar officials control all or parts of the disciplinary process, these appearances are created, regardless of the actual fairness and impartiality of the system. This is true whether the bar is unified or not.

Bar associations can properly manage such programs as mandatory fee arbitration, lawyer practice assistance, continuing legal education, voluntary arbitration and mediation. Bar operation of these programs does not create a conflict of interest or the appearance of impropriety. Although some of these programs may interact with the disciplinary process, it is entirely appropriate for the organized bar to cooperate with the court in the administration of such programs. Nothing in these rules should be construed as prohibiting bars from continuing to manage non-disciplinary matters nor should these rules be interpreted to support the elimination of unified state bars. Indeed, given the funding requirements of many of these programs, bars will be performing a vital public service in fulfilling these functions."

In summary, the American Bar Association has consistently taken the position, for at least 15 years, that the existence of a unified state bar does not compel the conclusion that attorney disciplinary matters should be handled by the state bar association. In fact, it has recommended otherwise.

The Different Approach in Kentucky

The Supreme Court of Kentucky has chosen to follow the guidance of the ABA with regard to the disciplinary standards that govern the conduct of lawyers in Kentucky but, perhaps inconsistently, has chosen to follow a different approach where the disciplinary process is concerned.

Specifically, in 1989 the Court adopted the ABA Model Rules of Professional Conduct (with a few specific differences) and promulgated them as the Kentucky Rules of Professional Conduct, codified as Supreme Court Rule 3.130 et seq. Likewise, the KBA "Ethics 2000 Committee" is now considering changes to the Kentucky Rules to bring them into accord with the current version of the ABA Model Rules

However, the Court has chosen not to adopt the companion provisions of the ABA Model Rules for Lawyer Disciplinary Enforcement or the related recommendations of the ABA Commission on Evaluation of Disciplinary Enforcement, discussed above.

For example, the Supreme Court Rules provide that the the KBA Board of Governors "shall appoint a Bar Counsel and such Deputy Bar Counsel as may from time to time be appropriate," contrary to the ABA Model Disciplinary Rules and the recommendations of the ABA Commission on Evaluation of Disciplinary Enforcement, quoted above. See SCR 3.155.

The Kentucky Bar Association is an agency of the Supreme Court, as Jane Herrick notes at the end of her article in Bench & Bar magazine. The KBA exists by virtue of Supreme Court Rule 3.025, which states that:

"The mission and purpose of the association is to maintain a proper discipline of the members of the bar in accordance with these rules and with the principles of the legal profession as a public calling, to initiate and supervise, with the approval of the court, appropriate means to insure [sic] a continuing high standard of professional competence on the part of the members of the bar, and to bear a substantial and continuing responsibility for promoting the efficiency and improvement of the judicial system."

In short, the existence of the Kentucky Bar Association as a "unified" Bar does not prevent the Supreme Court of Kentucky from creating a separate agency for attorney discipline, if it wishes to do so, in accordance with the ABA Model Rules for Lawyer Disciplinary Enforcement and the recommendations of the ABA Commission on Evaluation of Disciplinary Enforcement, Under the Kentucky Constitution, the Supreme Court possesses exclusive authority over the practice of law in Kentucky. It created the KBA, by and through the Supreme Court Rules, pursuant to that constitutional authority. Pursuant to that same authority, it can revise the Supreme Court Rules and the functions of the Kentucky Bar Association, whenever it chooses to do so.

There are legitimate arguments in favor of keeping Kentucky's attorney disciplinary system exactly as it is. However, for the reasons explained above, the membership of the Kentucky Bar should not conclude from Jane Herrick's fine article in Bench & Bar magazine that the "unified" nature of the Kentucky Bar compels the conclusion that attorney disciplinary matters should be handled by the Kentucky Bar Association.

"Submitted for your consideration"

Perhaps the time has come for the membership of the Kentucky Bar to engage in a discussion of these matters. Needless to say, most members of the Bar are so busy with their own practices that they do not have the occasion to consider these matters. For that reason, most of them are probably unaware that Kentucky's attorney disciplinary system does not follow the recommendations of the ABA or the provisions of the ABA Model Disciplinary Rules.

KBA moves Client Assistance Program into Office of Bar Counsel

About eight or ten years ago, the Kentucky Bar Association launched the KBA Client Assistance Program ("CAP") as a way of helping Kentucky lawyers and their clients resolve disagreements and misunderstandings outside of the disciplinary process.

At that time, the KBA emphasized the fact that the Client Assistance Program was separate and distinct from the Office of Bar Counsel; that it was managed by a Program Manager who was not a staff attorney in the Office of Bar Counsel; and that the CAP Office was, in fact, located on a different floor of the Bar Center in Frankfort.

For all of those reasons, Kentucky lawyers were encouraged to communicate with the CAP Program Manager in response to client complaints, taking comfort in the knowledge that they were not communicating with a representative of the disciplinary process. That message was communicated to the general membership of the Bar at Annual Conventions and District Bar Meetings, and also through columns in the Kentucky Bench & Bar magazine.

I have learned, however, that the KBA recently moved the Client Assistance Program into the Office of Bar Counsel. The CAP Manager has also become a Deputy Bar Counsel, like the six other Deputy Bar Counsel who prosecute disciplinary cases under the supervision and direction of the Chief Bar Counsel.

It appears that the KBA decided to make that change in order to move toward a "central intake" approach to the handling of bar complaints and other reports of attorney-client disagreements.

There are legitimate arguments in favor of that approach; in fact, it is the approach recommended in the ABA Model Rules for Disciplinary Enforcement. See ABA Model Rules for Disciplinary Enforcement, Rule I ("Comprehensive Lawyer Regulatory System"), paragraph B ("Central intake"). It should be noted, however, that the ABA Model Rules also recommend that all disciplinary matters be handled by a Disciplinary Board that is separate and distinct from the Bar Association, unlike the disciplinary process in Kentucky. See Id., Rule 2 ("The Disciplinary Board of the Supreme Court").

In light of everything the KBA stated and represented to the membership of the Bar several years ago regarding the operational and functional relationship between the Client Assistance Program and the Office of Bar Counsel, it seems that the KBA ought to make some conspicuous announcement and explanation of the recent change in the Kentucky Bench & Bar magazine and at District Bar Meetings.

Criticism of Deckard appointment misunderstands the position of KBA Executive Director

I am saddened, but not surprised, to see that some commentators have been quick to raise issues about the selection of Jim Deckard as the new Executive Director of the Kentucky Bar Association. In particular, they have suggested that Mr. Deckard may be tempted to "politicize" the position of Executive Director, or to "influence" the KBA's independent investigation into the conduct of lawyers who were involved in the merit system controversy, merely because he has previously served as Chief Justice Lambert's chief of staff and, more recently, as General Counsel to Governor Fletcher (after John Roach was appointed to the Supreme Court). See, for example, "Deckard is new KBA President," a blog post by WHAS reporter Mark Hebert, and "Deckard wrong choice: Lambert a bad influence on selection of KBA chief," an editorial in the Lexington Herald-Leader.

The KBA Executive Director is not a decision-maker in the attorney disciplinary process. Investigations are conducted by the Office of Bar Counsel under the direction of the Inquiry Commission, an independent body appointed by the Chief Justice. Following an investigation, the Inquiry Commission decides whether any formal charges of misconduct should be issued. If any such charges are issued, an evidentiary hearing is conducted by an independent Trial Commissioner and the case is then reviewed by the KBA Board of Governors and the Supreme Court. The Inquiry Commission includes non-lawyer members, as does the Board of Governors when it sits to consider disciplinary cases.

During my five years of service in the Office of Bar Counsel, first as Chief Deputy Bar Counsel and then as Chief Bar Counsel, KBA Executive Director Bruce Davis never attempted to influence or interfere with that process in any way. To suggest that Mr. Deckard might attempt to do so is an affront to his personal integrity. Likewise, to suggest that he could actually have any impact on disciplinary decisions is an affront to the integrity of the people who actually make those decisions.

Turning to the suggestion that Mr. Deckard might "politicize" the relationship between the KBA and the Supreme Court, the KBA Executive Director is not in a position to make unilateral, unsupervised decisions about the policy or program initiatives of the KBA. The Executive Director is the senior staff person at the KBA. He answers to the KBA Board of Governors, which is comprised of eighteen lawyers elected by members of the Bar throughout the state (two Board members elected from each of the seven Supreme Court districts, plus four officers of the Board who are elected by the entire membership), along with the Chair of the Young Lawyers Section.

During my service in the Office of Bar Counsel, it was my privilege to attend almost every meeting of the Board of Governors. I witnessed first-hand the high level of attention that the Board devotes to the management and oversight of the KBA. To suggest that Mr. Deckard would "politicize" the relationship between the KBA and the Supreme Court is an affront to the Board of Governors, as well as Mr. Deckard.

As I indicated in my previous post about Mr. Deckard's appointment, I had the pleasure of working with him, in his capacity as Chief Justice Lambert's chief of staff, during my own service at the KBA. For example, we both attended meetings of the KBA Rules Committee, a committee of the Board of Governors which considers changes to the Supreme Court Rules and submits proposed rule changes to the Supreme Court. During those meetings, I never once saw him attempt to influence the judgment of the Board members or manipulate the activity of that committee. To suggest that he might behave differently when he is no longer a representative of the Chief Justice, but instead an employee of the Board, is utter nonsense.

Indeed, if the KBA Board of Governors had experienced anything of that sort during Mr. Deckard's service as Chief Justice Lambert's chief of staff, one assumes that it would not have chosen him from a field of twenty-nine applicants. I know who some of those applicants were (contrary to popular belief, I was not one of them). They were highly qualified for the position as well, but I feel certain that they share my respect for Mr. Deckard and my confidence that he will bring a high level of competence and integrity to the position of KBA Executive Director.

Congratulations to Jim Deckard, the KBA's new Executive Director

[Update: See "Criticism of Deckard appointment misunderstands the position of KBA Executive Director"]

Congratulations to Jim Deckard, General Counsel to Kentucky Governor Ernie Fletcher, who has been selected as the new Executive Director of the Kentucky Bar Association. He succeeds Bruce K. Davis, who will retire in March after serving as Executive Director for over twenty years.

I had the pleasure of working with Jim during my service as Chief Bar Counsel, when he was serving as Chief Justice Lambert's chief of staff. I know that he will bring a high level of intelligence and integrity, and also a sophisticated understanding of Kentucky's legal system, to the position of Executive Director.

The KBA faces many challenges in the years ahead, including the staffing demands of the attorney disciplinary system and the KBA's need to stay relevant and helpful to solo and small firm practitioners. Jim can be expected to bring a fresh perspective to those issues, along with the energy and intellect to craft meaningful proposals for consideration by the KBA's Board of Governors.

Jim's selection was announced yesterday in a press release by Governor Fletcher's office. The full text of the press release follows:

FRANKFORT, Ky. – Governor Ernie Fletcher today announced that General Counsel Jim Deckard has been offered and has accepted the post as executive director of the Kentucky Bar Association. Deckard decided to accept the position after talking with the governor this afternoon.

Deckard will begin his new position on March 1.

“I am extremely proud of Jim for being chosen for this most prestigious position,” said Governor Fletcher. “The leadership of the Kentucky Bar Association has honored Jim with their trust to lead their organization. Jim has had a very successful tenure with our office and he will be a perfect fit in this new position. I wish him the best in his new venture.”

“It has been an honor to work with Governor Fletcher,” said Deckard. “The opportunity to serve as executive director of the Kentucky Bar Association, however, is another ‘once in a lifetime’ opportunity that I have been blessed with. I have the greatest respect for the governor and his entire team, and wish them continued success.”

Deckard, a native of Tompkinsville, is a graduate of Western Kentucky University and the University of Memphis. Since June 20, 2005, Deckard has served as General Counsel for the office of Governor Fletcher.

After graduating from law school, Deckard, 37, served as a law clerk with the Supreme Court of Kentucky and was in private practice in Nashville with the firm of Leitner, Williams, Dooley and Napolitan and later with Manier and Herod. Jim and his wife, Mandy, live in Frankfort with their two sons, Levy, 4, and Henry, 2.

Since when is journalism 'a new game in town' that needs to be regulated?

Today's edition of the Lexington Herald-Leader contains an article about the growing number of blogs published by Kentucky lawyers. See "Lawyers take legal debates online." I have already provided some related commentary in a separate post. See "Law-related blogs: following in the footsteps of Thomas Jefferson."

On further reflection, I have concluded that the most intriguing part of the article is a statement by a member of the Kentucky Attorneys' Advertising Commission. The member stated that blogs by lawyers are "kind of a new game in town" for which the Commission has not yet developed any "hard rules."

Those words make me want to ask three questions:

First, since when is journalism a "new game in town"? Lawyers have been writing about the law for centuries. The Internet has merely made it easier for them to do so.

Second, what does it indicate when a Commission member refers to a new medium of communication as a "new game"? Does it reveal a cynical or suspicious attitude toward the new technology? Would the same member have said that there was "a new game in town" when Johannes Gutenberg invented movable type in 1450?

Third and finally, why does a new medium of communication necessarily require new "rules" from the Advertising Commission? It is the Commission's duty to regulate the advertisement of legal services, not to control all forms of public communication by lawyers. Has the Commission become so jaundiced that it regards any public communication by a lawyer as an advertisement for legal services, and any new medium of communication as a "new game" that must be regulated (or won) by the Commission?