Kentucky Law Review

Ed Springston asks "Does Judge Charlie Cunningham have ethics problems?"

Ed Springston has written two posts raising ethical issues relating to a sitting judge on the Jefferson Circuit Court - Judge Charlie Cunningham and his rulings and comments from the bench in a partisan challenge to a Kentucky State Senate race.  For your information.

Here are Mr. Springston's posts:

"Does Judge Charlie Cunningham have ethics problems?"

and

"Judge Charlie Cunningham screws up the 37th State Senate District race"

 

 

 

 

Courier-Journal: "Judge threatens to 'strangle' attorney in 'ridiculous' case -- Experts question if McDonald improperly prejudged case" Video included.

Senior Status Judge Martin McDonald "with a controversial history threatened . . . to “strangle” a lawyer, then disparaged his case, calling it “ridiculous,” “disgusting” and “a huge waste of time.

 

From Andrew Wolfson's Courier Journal story, dated 10/4/2012.

Judge threatens to 'strangle' attorney in 'ridiculous' case

Martin McDonald, a former Jefferson district and circuit judge, said in an interview later that he was being “facetious” when he threatened Friday to attack assistant public advocate David Barron if he ever called him again on his cellphone without opposing counsel’s participation. But leading national experts on legal ethics said McDonald’s comments about the case, in which Barron is seeking a new trial for death row inmate Roger Dale Epperson, indicate that the judge had improperly prejudged the case. “The judge’s conduct in general is highly injudicious,” said Hofstra University law professor Monroe Freedman. “He should be removed from this case and also from the bench.” McDonald was removed from an unrelated civil case on Sept. 19 by Kentucky Chief Justice John D. Minton after McDonald was accused by the defense of bias and failing to disclose a conflict of interest — that he’d practiced with the plaintiff’s lawyer 20 years earlier.

Attorney publicly reprimanded by SCOKY for involvement in money laundering scheme

From the News Journal.

To read the complete Supreme Court decision, click here

A Knox County official received a public reprimand by Kentucky's highest court late last week.

In a decision returned on Thursday, the Kentucky Supreme Court publicly reprimanded Knox County Attorney Charley Greene Dixon Jr. The Court overturned an Inquiry Commission's July 2008 decision, which found Dixon not guilty.  The charges involved a money laundering scheme which sent former Knox County Judge/Executive Raymond Smith to prison.

***

In their ruling, the Court stated: "Dixon's actions had the effect of facilitating Raymond Smith's money laundering scheme. Two of the checks were drawn on Knox County. So Dixon's actions had the effect of defrauding the county that Dixon represented as county attorney," the court stated in their decision."

In July 2008, Dixon was investigated by the Inquiry Commission and found not guilty of misconduct regarding his attorney escrow account.

The commission alleged Dixon received checks from businesses owned by brothers Raymond and Matt Smith, put the checks in his escrow account, then distributed the cash value of the checks to both Smiths' wives at the instruction of Raymond Smith, according to the document

However, the Kentucky Supreme Court decided to review the trial commissioner's decision. Four years later, the Court has disagreed with the not guilty decision by the Commission.

The court found Dixon was guilty of violating SCR 3.130-1.15(b) by receiving more than $85,000 in checks made payable to specific businesses, making no effort to notify those businesses that he had received those funds, then paying the funds to a third party, the decision stated.

Smith laundered money through various accounts, including Dixon's escrow account, according to the document.

* * *

As part of the decision, Dixon was ordered to pay all costs associated with the disciplinary proceeding, which totaled $1,870.67.

"It's been reviewed on every level and I've been cleared," Dixon said.
 

From the Harlan Daily Enterprise - "Kentucky Supreme Court upholds removal of Alred" by Joe Asher

The following news story from the Harlan Daily Enterprise  is posted in its substantial entirety because the ramifications are signficant.  A sitting judge, elected by the citizens, was removed by the SCOKY.

The Kentucky Supreme Court has upheld the Kentucky Judicial Conduct Commission’s decision to remove Harlan Circuit Court Judge Russell Alred from the bench.

The Kentucky Supreme Court heard oral arguments in this matter approximately three months ago. An order to remove Alred from the bench was handed down by the Commonwealth of Kentucky Judicial Conduct Commission (JCC) on Sept. 20. That order is only the fourth such order issued since the JCC was established in the early 1980s.

The Kentucky Supreme Court’s decision, released on Monday, states that Alred was found guilty of judicial misconduct in nine out of 20 charges made by the JCC. The Supreme Court upheld the commission’s order on eight counts and reversed the commission’s decision on one count.

That count included, “on two occasions, Judge Alred questioned the principal of his children’s elementary school about why a certain defendant continued to work as a substitute teacher at the school while she had pending fraud charges in the Harlan Circuit Court.” The Kentucky Supreme Court stated that the commission’s findings regarding that count were erroneous because they are not supported by sufficient evidence.

The written decision also states “from our review of the record, it is clear that Judge Alred engaged in a pattern of misconduct, displaying disregard for the law and the Kentucky Code of Judicial Conduct. He continually refuses to accept responsibility for his actions or acknowledge his wrongdoing. Accordingly, we agree with the commission that there is good cause under section 121 of the Kentucky Constitution to remove Judge Alred from his judicial office for misconduct, as defined in the Kentucky Code of Judicial Conduct.”

The decision to remove Alred from office was not without opposition among members of the high court. Five members of the court, including Chief Justice John Minton, Justices Wil Schroder, Mary Noble, Lisabeth Hughes Abramson and Daniel J. Venters concurred with removing Alred from office.

Read more here: http://www.kentucky.com/2012/07/23/2267865/kentucky-supreme-court-upholds.html#storylink=cpy

Kentucky Supreme Court Justice Bill Cunningham concurred in part and dissented in part.

Cunningham wrote “Judge Alred has not killed or physically injured anybody. He has not molested his secretary. He has not stolen a dime. In fact, he hasn’t even been charged with a crime of any kind — misdemeanor or felony. None of his friends or family members have gotten rich or gone free because of his missteps. He has not enriched himself financially nor engaged in any kind of debauchery.”

Cunningham stated he disagreed with removing Alred from office.

“I know that in the past, at least, we have had judges convicted of crimes continue to serve on the bench. Therefore, I concur in part and dissent strongly in part. I concur with the adept handling of constitutional issues by the Chief Justice. I dissent as to the penalty of removal from office, as well as our court’s treatment of some of the charges,” wrote Cunningham.

Justice Will T. Scott dissented along with Cunningham.

According to Leigh Ann Hiatt, Public Information Officer for the Administrative Office of the Courts, Alred will continue to receive pay and benefits until his removal from office becomes effective.

Alred’s attorney, Marcus Carey, explained during a telephone interview on Monday there are options available should Alred decide to pursue the matter further.

“The first option, which is pretty apparent, is to ask the court to reconsider,” said Carey. “There is the option to ask a federal court to review whether or not the actions of the state violated constitutional protections to which Judge Alred would’ve been entitled.”

Carey explained that it is not known at this time which, if any, options will be pursued.

“The opinion was rendered about five hours ago and I’ve only recently gotten a copy of it in my hands. I’ve reviewed it very briefly. I see a couple of things that are worthy of more careful scrutiny to determine what the best option would be,” said Carey.

According to Carey, there is a question of due process to be considered.

“When the Supreme Court rules, obviously we have to respect that ruling. But on the other hand, in the pages of their ruling, they have made some decisions which effect the due process rights of judges throughout Kentucky. The question becomes whether or not in this case seeking further review of their opinions is going to be warranted or not,” stated Carey.

In an interview conducted by telephone on Monday, Jeff Mando, attorney for the Commonwealth of Kentucky Judicial Conduct Commission, explained the options open to Alred may include the United States Supreme Court.

“Under the rules of civil procedure, he can file a petition for re-hearing with the Kentucky Supreme Court,” said Mando. “Once the (Kentucky) Supreme Court’s decision is final, he can petition the United States Supreme Court to look at the case.”

Mando explained the chances that the U.S. Supreme Court would accept the case, if it were to be submitted, are low.

“It’s statistically very difficult. They accept such a small percentage of cases that they are asked to review,” said Mando. “They generally don’t delve into matters of interpretation of state law.”

It will now be up to Gov. Steve Beshear to appoint an individual to fill the post of Harlan Circuit Court judge until the next election in 2014.

Alred could not be reached for comment.

Reach Joe P. Asher at 606-573-4510 or jasher@heartlandpublications.com

Read more: The Harlan Daily Enterprise

 

Judicial Candor, Ostriches, and Heads in the Sand are not a good mix

Candor toward the tribunal addresses a core value of attorneys engaged in advocacy.   Honesty and integrity, especially when citing, relying, and relaying legal precedent and authority to the appellate courts.

I have come across a decision by Judge Posner which explicates this rule with succinctness in text, tone, and vision (digital image, that is).

Please note the images that follow are those from the actual decision and are not mine.  And for a gentle reminder of the Kentucky rule on candor:

SCR 3.130(3.3) Candor toward the tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal published legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

 

A decision out of the Seven Circuit (No. 11-1665, Moncia Del Carm Gonzalez-Servin v. Ford Motor Co., addressed this issue in some not-so-kind words.  Download GonzalezServin_v_Ford. 

When there is apparently dispositive precedent, an
appellant may urge its overruling or distinguishing or
reserve a challenge to it for a petition for certiorari but
may not simply ignore it. We don’t know the thinking
that led the appellants’ counsel in these two cases to
do that. But we do know that the two sets of cases out
of which the appeals arise, involving the blood-products
and Bridgestone/Firestone tire litigations, generated many
transfers under the doctrine of forum non conveniens, three
of which we affirmed in the two ignored precedents.
There are likely to be additional such appeals; maybe
appellants think that if they ignore our precedents their
appeals will not be assigned to the same panel as decided
the cases that established the precedents. Whatever the
reason, such advocacy is unacceptable.

The ostrich is a noble animal, but not a proper
model for an appellate advocate. (Not that ostriches
really bury their heads in the sand when threatened; don’t
be fooled by the picture below.) The “ostrich-like tactic
of pretending that potentially dispositive authority
against a litigant’s contention does not exist is as unprofessional
as it is pointless.” Mannheim Video, Inc. v. County
of Cook, 884 F.2d 1043, 1047 (7th Cir. 1989), quoting Hill
v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).

The attorney in the vehicular accident case, David S.
“Mac” McKeand, is especially culpable, because he filed
his opening brief as well as his reply brief after the Abad
decision yet mentioned it in neither brief despite the
heavy reliance that opposing counsel placed on it in
their response brief. In contrast, counsel in the bloodproducts
appeal could not have referred to either Abad
or Chang in their opening brief, did try to distinguish
Abad (if unpersuasively) in their reply brief, and may
have thought that Chang added nothing to Abad. Their advocacy
left much to be desired, but McKeand’s left more.
AFFIRMED.

 

LawReader Posts of Note

LAWREADER RECEIVES ALLEGATIONS REGARDING THE QUESTIONABLE USE OF OUTSIDE COUNSEL BY THE KBA BAR COUNSEL

FEINBERG RECANTATION MADE AFTER TRIAL, IN CLOSED ROOM, WITHOUT CROSS-EXAMINATION – WILL THIS BE BASIS FOR NEW LEGAL THEORY ALLOWING POST TRIAL RECANTATIONS

WHAT ISSUE MIGHT BE CONSIDERED BY THE KY. SUPREME COURT IN THEIR DISCRETIONARY REVIEW OF THE COURT OF APPEALS RULING IN ABBOTT V. GALLION ET AL?

KENTUCKY SUP. CT. GRANTS DISCRETIONARY REVIEW OF DISMISSAL BY CT. OF APPEALS IN ABBOTT V. GALLION FEN PHEN CIVIL CASE

The Media Seems Outraged by Newt’s Plan to Arrest Judges Who Make Rulings He disagrees With….But that same doctrine has been advanced by the KBA in Kentucky, and was recently upheld

DUTY OF ATTORNEYS TO REPORT ETHICAL VIOLATIONS OF OTHER ATTORNEYS – Does this apply to Bar Counsel’s Office?

IS IT POSSIBLE FOR BAR COUNSEL’S OFFICE TO HIDE ETHICS COMPLAINTS AND PROTECT THEIR FRIENDS?

DUTY OF ATTORNEYS TO REPORT ETHICAL VIOLATIONS OF OTHER ATTORNEYS – Does this apply to Bar Counsel’s Office?

COPY OF ANGELA FORD BRIEF SEEKING TO AVOID ACCOUNTING TO U.S. ATTORNEY

WHEN WILL THE KBA TELL THE PUBLIC WHY THEY FIRED LINDA GOSNELL? OPPOSITION TO BOARD OF GOVERNORS GROWS.

AOC CLAIMS COURTS ARE OPEN AND TRANSPARENT – BUT KBA REFUSES TO RELEASE INFORMATION

LOUISVILLE: Judge Annette Karem's request to reduce contempt sentence if attorney agreed to pay judge's legal fees fighting the appeal has been attacked

From Courier Journal:

Judge's billing request attacked
Courier Journal 12/23/2011
Story by Andrew Wolfson

In an unusual plea bargain, a Jefferson County judge offered to reduce the contempt sentence of a lawyer from six months to one weekend in jail — if she agreed to pay any legal fees the judge incurs fighting the lawyer’s appeals.

Attorneys for Louisville lawyer Amelia “Mikki” Adams have asked Kentucky’s chief justice to disqualify Jefferson District Judge Annette Karem from further hearing the case, saying she injected “her own pecuniary interests into her decision-making process,” creating a conflict of interest and “the appearance, if not the actuality, of impropriety.”

Karem’s lawyer, Lee Sitlinger, said the judge did nothing wrong and that it was his idea to include the payment of fees as one of the conditions for settling the case. Karem hired Sitlinger when Adams named her as the defendant in her appeals.

But leading national experts on judicial experts say it was improper for Karem to propose resolving a case in a way that would benefit her financially. Monroe Freedman, a lawyer professor who teaches ethics at Hofstra University, said in an email that “the judge should be removed from the case, if not from the bench.”

Click on linked heading above for the rest of the post.

Lawyers: "Chesley: Delay disbarment process"

From Courier Journal:

Chesley: Delay disbarment process

Cincinnati lawyer Stan Chesley has asked the Kentucky Supreme Court to delay considering his disbarment for his role in the fen-phen scandal so his lawyers can investigate why the Kentucky Bar Association's chief disciplinary lawyer was fired earlier this

KBA: Gosnell no longer KBA disciplinary counsel

From Courier Journal:

Kentucky Bar Association's chief disciplinary counsel ousted

The Kentucky Bar Association’s chief disciplinary counsel, Linda Gosnell, who investigated the state’s fen-phen scandal and won the disbarment of several lawyers, has been ousted from her position.

Kentucky Bar Association President Margaret Keane said Monday night that “Gosnell is no longer employed by the bar association.”

Keane declined to elaborate.

Asked why she was forced out, Gosnell said in a phone interview Monday night: “You’ll have to ask the KBA. I’m not going to talk to you.”

Lawreader's Stan Billingsley has a series of posts on this topic:

BAR COUNSEL LINDA GOSNELL REORTEDLY FIRED BY KBA BOARD OF GOVERNORS

LINDA GOSNELL FIRING ALLEGEDLY CONNECTED TO FEN PHEN FUNDS.

UPDATE ON FIRING OF LINDA GOSNELL – LAWREADER SEEKS ANGELA FORD “DISTRIBUTION LIST” OF FEES PAID OUT OF FEN PHEN

Bar Counsel’s Husband Advertised Expertise in Mass Tort Drug Litigation

 

Social Media, confidentiality and the practice of law and the courts

Facebook, Twitter, MySpace, LinkedIn, and the social media present ethical, professional, and moral issues for lawyers, judges, and court personnel and staff.  Comments can go viral, and the propriety of those comments can redound to the sender's disadvantage.

Although the obvious pluses for postings on the social media and blogs include marketing, advertising, professional promotions, and politic'ing, there is always the downside risk that you write a post that is not well received.

This is what happened to a local attorney involved in a confidential child cutody matter.  Of course, if there were any doubts or uncertainty about the comments' connection with a particular case or child, they seem to be less tenuous now following their publication in the newspaper.

Another Pandora's box erupts now on the limits and controls of lawyer's professional and private speech run head on with the legal system's prescription of privacy and confidentiality on child custody matters.

If you wish to read this story, then do a Google (tm) search.