Kentucky Law Review

Tech News: "Facebook Spoliation Costs [Virginia] Lawyer $522,000; Ends His Legal Career"

Just a reminder that what is digital is permanent, to include the not-so-social media of Facebook, Myspace, etc.  The following post by John Patzakis from Next Generatione eDiscovery Law and Tech Blog goes to show you there are risks in the internet age that did not even appear on the horizon when we went to law school back during the BC (before computers) era.

Might want to consider placing a "legal hold" on the social medial stuff rather than wiping it out.  Attorney ordered to p;ay $522,000 for instructing the client to remove the photos from the Facebook profile.

A "legal hold" is described as (and which was found at FACEBOOK page, click here.

"From Wikipedia, the free encyclopedia

A legal hold is a process which an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated.

The legal hold is initiated by a notice or communication from legal counsel to an organization that suspends the normal disposition or processing of records, such as backup tape recycling, archived media and other storage and management of documents and information. A legal hold will be issued as a result of current or anticipated litigation, audit, government investigation or other such matter to avoid evidence spoliation. Legal holds can encompass business procedures affecting active data, including, but not limited to, backup tape recycling.

Recent amendments to the United States Federal Rules of Civil Procedure (FRCP) address the discovery of electronically stored information (ESI) (aka e-discovery), expanding the use of a "legal hold" beyond preservation of paper documents. The amendments were written in anticipation of legal arguments and tactics related to the production of ESI, such as the cost and difficulty of producing such ESI and claims that such ESI was missing, deleted, or otherwise inaccessible when it really wasn’t the case. These changes took effect December 1, 2006 and require organizations to hold all electronic records until each legal matter is formally settled, even if an organization only reasonably anticipates litigation.

Process

There are three main requirements that comprise a legal hold process:

Hold notification

An organization has a duty to preserve relevant information when it learns, or reasonably should have learned of pending or threatened litigation, or of a regulatory investigation. In order to comply with its preservation obligations, the organization should inform records custodians of the respective custodian’s duty to preserve relevant information. The organization should provide instructions for doing so. This traditionally cumbersome process may be automated with workflow to ensure all custodians receive a formal notice and agree to its terms."

END OF WIKIPEDIA QUOTE.

Now, back to my own commentary, questions, and what-ifs.

Of course, the question is if the pages and the photos were off-loaded but preserved prior to deleting and closing the account would that have avoided the spoliation issue?  Are you required to keep it in its original format and available for the world?  Can you go private or unfriend everyone and keep the pictures posted?  Close down the site with no friends and open a newer one?

You got me.  If the simple instructions were to remove, but the attorney "captured" each page, each picture, etc. so the materials were not destroyed but simply moved elsewhere, then would the court have held there was spoliation?  Hmmmmm.  Hello, KBA what are the chances of our association totally misunderstanding this one and dropping the ball as they did in the early days of blogging?  It is so hard to write opinions in the computer age when you think a Selectric typewriter is the bomb!

Please note that the court held the client who removed the page liable for $180,000 for following his lawyer's instructions.  Now, that this issue has been posted with the matter of unseemly photos a potential problem in personal injury cases would that make the blogger who posted the decision above a putative spoliator, or for that matter, me?  Where do the dominoes stop?

Finally, is spoliation of evidence a cause of action in Kentucky, an ethics complaint, or just an evidentiary ruling?  Well, I may have answered my own question and refer you to Monsanto Co. v. Reed,  950 S.W.2d 811, 815, (Ky. 1997), in an opinion written by Chief Justice Lambert.  Too late to Shepherdize it, so rely on it at your own peril.  UPDATED:  Shepherdized it and this portion still looks good (the dicta that is), but again rely on this case at  your own peril.  However, Monsanto was favorably followed in Bandy v. Norfolk So. Ry. Co, 2006, Ky. App, UNPUBLISHED Opinion.

As a final matter, we turn to the Court of Appeals creation of a new cause of action for "spoliation of evidence." In its opinion, the court recognized that "sanctions are provided for intentional or negligent destruction of relevant evidence," but insisted that recognition of the tort of spoliation was "consistent with the statutory and common law of this jurisdiction." The court then delineated the elements of the intended tort and remanded to the trial court to permit appellees' amendment of their complaint for recovery under this cause of action.

We decline the invitation to create a new tort claim. Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and "missing evidence" instructions. See Tinsley v. Jackson, Ky., 771 S.W.2d 331 (1989) and Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988). The Court of Appeals recognized that only three states have adopted this tort claim. The vast majority of jurisdictions have chosen to counteract a party's deliberate destruction of evidence with jury instructions and civil penalties. Representative of this approach is Federated Mutual Insurance Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434 (Minn. 1990). We will remain among those jurisdictions and not now allow such claims for relief.

Attorney in wrongful death claim instructs his client to get rid of social media pages which might hurt the wrongful death claim. Here is John Patzakis' post::::::

"In what many are calling the largest eDiscovery sanction penalty ever leveled directly against an attorney, a Virginia state judge ordered lawyer Matthew Murray to pay $522,000 for instructing his client to remove photos from his Facebook profile, and for his client to pay an additional $180,000 for obeying the instructions. A copy of the final order in Lester v. Allied Concrete Company is available here.

If Murray had initiated a proper legal hold concerning his client’s social media evidence instead of directing blatant spoliation, he would be a lot wealthier and likely kept his job. Instead, he apparently quit his position as managing partner of the largest personal injury firm in Virginia and, according to local press reports, he no longer practices law.

The court’s findings reflect that Murray told his client to remove several photos from his Facebook account on fears that they would prejudice his wrongful death case brought after his spouse’s fatal automobile accident. One of the photos depicts the allegedly distraught widower holding a beer and wearing a t-shirt emblazoned with “I [heart] hot moms.” Murray instructed his client through his assistant to “clean up” his Facebook account. “We do not want blow ups of other pics at trial,” the assistant’s email to Lester said, “so please, please clean up your Facebook and MySpace!”

This case reflects a trend we see based on anecdotal data points where a minority of legal and eDiscovery practitioners have not quite placed social media evidence on the same par as other electronic evidence. For instance, I believe it is highly unlikely that Murray would have instructed his client to delete all his emails or wipe his hard drive, but for some reason he differentiated social media evidence."

Click here for remainder of the above post.

Click here for ABA Book on Spoliation of Evidence -

Spoliation of Evidence: Sanctions and Remedies for Destruction of Evidence In Civil Litigation, Second Edition

Here is a post from Clausen Miller law firm's web site discussing an Illinois decision regarding spoliation as a tort and/or evidentiary remedy.

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Adams v. Bath & Body Works: The Newest Roadmap for Illinois Spoliation Remedies

April, 2005

These posts and comments are designed to start you on the road of a more successful and stressful law practice and hopefully stir up some commentary and debate.

Here is a link to a survey of the 50 states' rules on spoliation (a few years old):

SPOLIATION OF EVIDENCE IN ALL 50 STATES

BTW:  I apologize for the rambling nature and discourse of this article but this was a free flow analysis as I went from link to post, back to my blog, some ruminations, rabbit trails, and rumblings of my own. 

CJ News: "Bud Schardein departs from MSD" and what about that sweetheart of a trust?

Just a thought on the retirement of Bud Schardein.... If there is any question on the propriety or legality of his incentive bonus to stay on, then why not attempt to get it back?   If public office is a public trust, and funds are dispensed under the umbrella of a conflict of interest, then those imbued and in the heart of that conflict should not get to keep the money.

Should a trustee be entitled to award him/herself a large fee and keep it? 

Here is the Courier Journal story:

Bud Schardein departs from MSD

Bud Schardein has retired from Metropolitan Sewer District, MSD spokesman Steve Tedder said on Thursday. Schardein served as executive director from 2002 to Dec. 16, 2011, the day of the release of a highly critical state audit.

This is not my first foray into this area questioning the expenditure of public and quasi-public funds.  And there are more funds to look at to recoup. I am not saying there is necessarily a basis, but I do know the question should be asked and the matter the subject of an inquiry by those in the know and with the authority.

See,  Op-Ed: What is being done to recover some of the money leaks at the Metropolitan Sewer District? from January 20, 2012 of the Kentucky Law Review.

Of Juries, "Conscience of the Community", and justice

The jury is a powerful force in American and English jurisprudence. 

The right to a jury of your peers is a Constitutional right that men and women have died to protect for centuries.  One that some may not fully appreciate.

While reviewing audio tapes and literature of Moe Levine, a phenomenal personal injury and medical malpractice and negligence lawyer, who passed away nearly 50 years ago, I came upon some nuggets of wisdom.

One of these is on the value and function of a jury.  He stated that jurors are not judges without robes but rather they as cumulative body reflect and speak in this case as the "conscience of the community".  I liked that, but I wondered if that was the law in Kentucky.

And yes it is.  Powerful language, and the recognition of a role that goes back hundreds of years.

As a Louisville Kentucky personal injury lawyer, retired soldier and military judge, I have a strong and pervasive belief and trust in juries.  Twelve ordinary people assembled to render justice usually get it "right" and move beyond their individual prejudices and biases.  The sum of the parts is always greater than the individuals. 

The judicial decision regarding when to save the interpretative function for the court and when to delegate the interpretative function to the jury is crucial to the development of negligence law. The more judges take cases away from juries, the more the concepts of reasonable conduct, negligence and gross negligence become synonymous with the view of the judge or judges on that court. Likewise, the more the interpretative power is delegated to juries, the more these concepts become the aggregate of discrete findings by juries. See L. Green, Judge and Jury (1930). By delegating interpretation to a jury the judiciary allows current considerations of equity and common sense to modify what might otherwise become anachronistic principles. L. Green, supra, at 385-91. The role of the jury in interpreting the evidence and finding the ultimate facts [**5] is an American tradition so fundamental as to merit constitutional recognition. U.S. Const. Amend. VII; Ky. Const. Sec. 7. The conscience of the community speaks through the verdict of the jury, not the judge's view of the evidence. It may well be that deciding when to take a case away from the jury is a matter of degree, a line drawn in sand, but this is all the more reason why the judiciary should be careful not to overstep the line.

Horton v. Union Light, Heat & Power Co., No. 84-SC-80-DG, Supreme Court of Kentucky, 690 S.W.2d 382; 1985 Ky. LEXIS 220, April 11, 1985 ,  Rehearing Denied June 14, 1985

Op-Ed: What is being done to recover some of the money leaks at the Metropolitan Sewer District?

Buried in a recent Courier Journal story about the Metropolitan Sewer District's dismissal of its attorney were two interesting notes which raised a question what, if any, legal action is going to be taken.  See, MSD severs ties with longtime board attorney Larry Zielke after critical audit

First, the small and buried paragraph about the MSD's financial advisor who had been dismissed for a "conflict of interest" in reaping profits  on various investment transactions makes no mention of what action is being taken against the advisor who financially profited from those transactions other than his termination. 

A conflict of interest costs a public agency millions of dollars. 

Any chance of recouping the profit the advisor made by benefitting from those "recommendations" presumably made under the appearance of objectivity?

And, if the disclosure of the conflict was made, then what action should be taken against those in authority for permitting it? Just wonderin'.  Here's the paragraph.  You decide for yourself.

Heitzman announced that staff was also developing a request for proposals for a new financial adviser for the agency, which has an operating budget of $110 million and a capital budget this year of more than $200 million.  The current adviser, Warren White, was found by the auditor’s office to have a conflict of interest by making recommendations on where to invest hundreds of millions of dollars, then collecting millions of dollars on fees on the profits of those investments.

Second, what about that sweetheart trust set up to continue keeping the Executive Director's interest and employment as MSD but which allowed these transactions and money leaks to continue during his watch. And now, he is retained at full salary as an adviser.  Some trust.

Heitzman also said he has decided that former Executive Director Bud Schardein will retain his full salary of $181,000 as an adviser until he retires this spring. He said he has not decided when that retirement would occur, but that it would likely be by April 1.

He said Schardein is working every day and has been helping with the transition.

Heitzman said he has withheld the final $40,000 payment in what was to be a $200,000 trust fund established for Schardein. Heitzman said he’s reviewing that decision with Purifoy.

Am I the only one just a little dismayed that those placed in a public trust are allowed to profit from abuses of that trust without any steps to dislodge those ill-gotten gains?

Folks are out of work, the state is scrutinizing the unemployeds' claims for unemployment benefits, and millions of dollars are left to leak out with nary an attempt to say "wait a minute buddy".

Op-Ed in CJ from Robinson, Johnstone and Keller - "Suspend Kentucky executions until system is reformed: Ensuring justice must be our primary concern"

The following story was in the Courier Journal on Dec. 18, 2011 addressing exectutions in Kentucky.  The writers are:  Wm. T. (Bill) Robinson III is president of the American Bar Association and former president of the Kentucky Bar Association. James E. Keller and Martin E. Johnstone are former Kentucky Supreme Court justices and members of the Kentucky Death Penalty Assessment Team.

I neither agree nor disagree with their remarks but due to the illustrious trio's status in our bar, I thought others in the Commonwealth would appreciate their op-ed piece. Comments are welcome.

Suspend Kentucky executions until system is reformed: Ensuring justice must be our primary concern

Consider the case of a person convicted and sentenced to die with only the evidence of inadmissible hearsay linking him to the crime. Or the person whose defense counsel consisted of a “semi-retired” volunteer lawyer with a drinking problem and a second lawyer with no experience in trying felony cases. Another egregious case involves a defendant whose lawyers failed to present any evidence that would convince the jury to spare his life, when available evidence would have supported a lesser sentence.

We’re saddened to report that these are not only real death penalty cases in Kentucky, but they’re also all too common. The list of problematic cases is staggering, and review of the system is deeply troubling. Fairness, impartiality and effectiveness of counsel have been undermined by serious flaws that reveal systemic problems in administration of the death penalty in the commonwealth.

Since Kentucky reinstated the death penalty in 1976, 50 of the 78 people sentenced to death have had a death sentence or conviction overturned on appeal due to serious errors or misconduct that occurred at trial.

Most people facing the death penalty are not sympathetic figures. Their alleged crimes are abhorrent and families of the victims experience unfathomable grief. But delivering justice is the foundation of our system — a principle that we must uphold for everyone — even those whose actions are repugnant and even when outraged communities desire to see the ultimate punishment.

As a society, if we are going to take a life, we need to ensure that the foundation of our system is sound. Judges and jurors must be neutral and fair, and both parties must be adequately represented.

Former American Bar Association President Jack Curtin said it best: “A system that takes life must first give justice.”

In Kentucky, we cannot be certain that our death penalty system is fair and accurate. Our Death Penalty Assessment Team of lawyers, judges, bar leaders and legal experts conducted an exhaustive, two-year review of the death penalty system and identified a host of problems at various stages of the capital process, many of which increase the risk of executing the innocent. The problems affect not only those possibly facing execution, but also victims of crime.

That’s why we are calling for a suspension of executions until the problems identified by the team are addressed and remedied.

As officers of the court and members of the bench and bar, we have a duty to uphold the law. We also have an obligation to use our skills, talents and expertise to ensure the fair administration of justice. We take that commitment very seriously. After reviewing too many areas in which we fall short in protecting against wrongful conviction and failing to ensure fair and accurate procedures, we agree with the team’s unanimous recommendation.

We are hopeful that our detailed report and analysis will be a call to action for reform of the death penalty system.

In Kentucky, we must reserve capital punishment for the most heinous of offenses and offenders; we have to make sure that we are getting it right. We owe the citizens of this commonwealth no less.

Lawyers: "Ex-client targets Louisville firm Becker Law"

From Courier-Journal:

Ex-client targets Louisville firm Becker Law

With its ad campaigns advising the injured and maimed that they "better call Becker," Louisville's Becker Law Office says it has represented 30,000 people over 25 years. Now it is embroiled in a legal battle with one of them.

PS:  I was NOT going to post this story in the midst of a trial.  The contents and the quotes are quite sensational, and I was perplexed why couldn't the newspaper wait at least a day until AFTER a jury was empaneled. Well, the CJ did not wait, sold a little sensationalism, and basically laid the foundation for the trial to stop before a jury was even selected.  The details have not come out yet in the news, but I know the trial is off, and the reason was the jury and jury pool was affected by the news.  Good job Courier-Journal.  The old adage - justice delayed is justice denied?  A plaintiff has waited years to have her case heard, and a lawyer too has been denied the opportunity to tell his or her side in cour.  Not a win-win but a lose-lose for the litigants. What next a change of venue at the cost of your circulation?

Civil Rules: Comment - Let's delete the last half of Civil Rule 3 and do away with the requirement that a summons or warning order be issued in good faith

The time is now for us to modernize our civil rules to match up with the federal rules on what commences a lawsuit for compliance with the statute of limitations for filing.

We now have a SCOKY published decision in Nanny v. Smith regarding the filing of the complaint before the expiration but the issuance of the summons was after the deadline, but the SCOKY held the plaintiff had done all that the plaintiff could do for filing the complaint.

Now the COA has followed that lead (albeit in an unpublished decision) in which the plaintiff mailed his complaint to the clerk's office which arrived in time but again the summons was issued after the expiration. The COA applied Nanny v. Smith and held the lawsuit was timely filed and remanded it back to the circuit court.

When it comes to meeting the statute of limitations, the plaintiff needs to know (just as much as the defendant need to know) at what point has it been met. Well, it looks like we have a bright line by judicial precedent that if the complaint is in the clerk's office in time, then it is timely filed.  The plaintiff has done all he could or should do and now it is up to the clerk.  Thus, it is filed.

Now, let's change the rule and avoid the trap of timely filing. If it makes it to the clerk on time, the lawsuit is commenced.  Now, the rule, if changed, would need to make it clear that mailing using one of the services (UPS, Fed Ex, Registered Mail, etc.) that is timely mailed but untimely received either cuts or does not cut it. The time of mailing using one of those services that can be "monitored" independently of the filer (eg., the mailer puts the date on certified mail) works for appellate documents, but probably should not work for commencing the action.  Otherwise, we might just have the same quibling we now have but on a different field of battle.   A defendant just ought to be able to check the clerk's office or CourtNet and note when the suit was filed - bright line test.

Clocked and dropped is clear. 

In the court clerk's box is clear, too.

In the mail is not clear.

The Federal Rule is:

Rule 3. Commencement of Action

A civil action is commenced by filing a complaint with the court.

The Kentucky Rule is:

CR 3.01 COMMENCEMENT OF ACTION 

     A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.

The change is easy - just delete "and the issuance of a summons or warning order thereon in good faith".  And now you would have a clear understanding, and better use of time.

And now for the "NON"published decision that prompted this post:

1090. STATUTE OF LIMITATIONS.
HELTON (LISA)
VS.
JERRY'S DISCOUNT, INC
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000658-MR
NOT TO BE PUBLISHED
MENIFEE

ACREE, JUDGE: The issue before us is whether the Menifee Circuit Court erred when it determined that Appellant Lisa Helton’s personal injury complaint was filed outside the applicable one-year statute of limitations because, though Helton delivered the complaint to the Menifee Circuit Court Clerk within the requisite time period, the Clerk did not file the complaint nor issue the required summons until after the limitations period had expired. After careful consideration, we vacate the circuit court’s order dismissing Helton’s personal injury suit, and remand for further proceedings consistent with this opinion.

FACTS:

On January 19, 2009, Helton slipped and fell on ice outside the front door of appellee’s, Jerry’s Discount, Inc., convenience store in Menifee County, Kentucky. Helton purportedly suffered injuries as a result of her fall. Helton endeavored to commence a personal injury action against Jerry’s Discount in Menifee Circuit Court within the required one-year statute of limitations. KRS 413.140(1)(a).

On Friday, January 15, 2010, Helton mailed the complaint, filing fee, and summons to the Clerk via the United States Postal Service (USPS) express mail with delivery confirmation. The USPS confirmed delivery of Helton’s complaint to the Clerk’s office at 9:31 a.m. on Tuesday, January 19, 2010, the last day of the limitations period.2    However, the Clerk did not file the complaint or issue the required summons until Thursday, January 21, 2010, two days after the statute of limitations expired.

ANALYSIS:

“A statute of limitations limits the time in which one may bring suit after the cause of action accrues.” Coslow v. General Elec. Co., 877 S.W.2d 611, 612 (Ky. 1994). In order to survive a motion to dismiss, the plaintiff must commence his or her suit within the relevant statute of limitations period. Kentucky Rules of Civil Procedure (CR) 3.01 governs the commencement of civil actions, providing that “[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.” CR 3.01; see also KRS 413.250 (“[A]n action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.”). “Upon the filing of a complaint (or other initiating document) the clerk shall forthwith issue the required summons[.]” CR 4.01(1).

Historically, Kentucky courts have demanded strict compliance with the requirements set forth in CR 3.01. See DeLong v. DeLong, 335 S.W.2d 895 (Ky. 1960); Osborne v. Kenacre Land Corp., 65 S.W.3d 534 (Ky. App. 2001); Gibson v. E.P.I. Corp., 940 S.W.2d 912 (Ky. App. 1997). It is the plaintiff’s duty to ensure all appropriate steps have been taken to commence an action and, in line with this duty, the plaintiff is presumed to know the applicable statute of limitations. See Pospisil v. Miller, 343 S.W.2d 392, 394 (Ky. 1961). However, in Nanny v. Smith, 260 S.W.3d 814 (Ky. 2008), the Kentucky Supreme Court re- examined this issue.

In Nanny, the plaintiff desired to bring a personal injury action against the defendant arising out of a car accident. The applicable statute of limitations dictated the plaintiff had until Saturday, October 18, 2003, to file her personal injury suit. However, because the statute of limitations was set to terminate on a Saturday, the plaintiff actually had until Monday, October 20, 2003, to commence her action. On Friday, October 17, 2003, the plaintiff hand-delivered her complaint to the appropriate circuit court clerk. A time date stamp indicated the clerk received the plaintiff’s complaint on October 17, 2003, at 2:35 p.m. However, the clerk did not file the complaint or issue the required summons until Tuesday, October 21, 2003, one day after the statute of limitations expired. Consequently, the circuit court dismissed the plaintiff’s case.

On discretionary review, the Kentucky Supreme Court equitably tolled the statute of limitations because the clerk’s failure to file the plaintiff’s complaint and issue the required summons violated the mandates of CR 4.01(1) and exceeded the plaintiff’s control. Nanny, 260 S.W.3d at 818. Specifically, the court reasoned:
Once [plaintiff] delivered the complaint, she could reasonably expect that the summons would be issued within the statutory period. At that point, [plaintiff] had no further duty to ensure that the clerk [filed the complaint and] issued the summons within the limitations period. CR 4.01 (“[U]pon the filing of the complaint . . . the clerk shall forthwith issue the required summons and, at the direction of the initiating party, either” serve the summons and complaint by mail or transfer the summons and complaint to an authorized person for delivery and service); KRS 30A.030(1); Louisville & N.R. Co. v. Smith's Adm'r, 10 Ky. L. Rptr. 514, 87 Ky. 501, 9 S.W. 493, 495 (1888) (“[I]t is the official duty of the clerk to issue the summons in accordance with law, and it is not incumbent upon the plaintiff to see that he issues it in accordance with law.”). Nor did [plaintiff] have the power to compel the clerk to issue summons since, by statute, the clerk is under the supervision of the Chief Justice, not [plaintiff] or her attorney. KRS 30A.010(2).

Because [plaintiff] had neither the power nor the duty to ensure that the clerk perform official duties, she was prevented by circumstances beyond her control from having the summons issued in time. We believe that under these facts, [plaintiff] should not be held responsible for such circumstances. See Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954, 958-59 (1933) (upholding the petitioner's right to maintain an election contest on the basis that he was prevented by circumstances beyond his control from having the summons issued in time and that the delay in issuing the summons was due solely to the fault of the circuit clerk over whom the petitioner had no control).

Nanny, 260 S.W.3d at 817; see also Hagy v. Allen, 153 F. Supp. 302 (E.D. Ky. 1957) (applying Kentucky law, the federal court determined that, because the plaintiff had done everything possible to ensure her complaint was filed and summons issued before the statute of limitations expired, the plaintiff should not be punished for the clerk’s failure to perform her duties). The Kentucky Supreme Court acknowledged that “promptness in filing is essential to the proper function of the court system.” Id. at 818. However, under the facts of the particular case, the court reasoned that equity required the tolling of the statute of limitations. Id.

In the case sub judice, Helton contends that Nanny is directly on point and dispositive of her case. In response, Jerry’s Discount asserts Nanny provides a narrow exception to the hard-line rule requiring strict compliance with the statute of limitations and is factually distinguishable. Specifically, Jerry’s Discount attempts to distinguish Nanny, arguing that the plaintiff in that case had done everything in her power to ensure her complaint was timely filed, but Helton simply placed her complaint in the mail at the end of the statutory period and hoped it would reach the clerk’s office in time. We are not persuaded by that argument; we find Nanny to be factually similar to the case at hand and quite instructive.

Similar to the plaintiff in Nanny, Helton took reasonable steps to ensure her complaint was delivered to the clerk’s office prior to the expiration of the statute of limitations. Though Helton did not hand-deliver her complaint to the Clerk, she mailed her complaint via express mail with delivery confirmation four days before the statute of limitations expired. Additionally, via the USPS, Helton confirmed delivery of her complaint to the Clerk’s office at 9:31 a.m. on January 19, 2010, the last day of the limitations period. Therefore, just like the Nanny plaintiff, Helton knew the Clerk had received her complaint before the statute of limitations expired with ample time for the Clerk to file the complaint and issue the required summons. Nonetheless, for reasons unclear to this Court, the Clerk waited for two days after the limitations period expired to perform her duties.

As expressed by Justice Palmore, “common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Insurance Commission, 450 S.W.2d 235, 237 (Ky. 1970). Once an attorney has timely delivered the complaint to the proper court clerk, the attorney’s job is complete. The power then shifts to the court clerk to promptly perform his or her required duties. See KRS 30A.010 et al. It would be manifestly unjust to punish an attorney, and in turn his or her client, for the clerk’s failure to adequately execute his or her responsibilities. To conclude otherwise would result in disparity in our legal system which can neither be condoned nor tolerated.

Because Helton “had neither the power nor the duty to ensure that the clerk perform official duties, she was prevented by circumstances beyond her control from having” her complaint filed and summons issued before the statute of limitations expired. Nanny, 260 S.W.3d at 817. Therefore, under these unique circumstances, the one-year statute of limitations is equitably tolled. Id.; see also Robertson v. Commonwealth, 177 S.W.3d 789, 791-92 (Ky. 2005) (recognizing the doctrine of equitable tolling is applicable when a party is plainly prejudiced by unavoidable circumstances beyond the party’s control despite the party’s due diligence).

Conclusion
The Menifee Circuit Court’s order dismissing Helton’s personal injury action is vacated and this matter is remanded for further proceedings in accordance with this opinion.
ALL CONCUR.

"Here's looking at you, kid."... Optometrists and opthamologists not seeing eye to eye on new law permitting optometrists to perform eye surgery

 I, for one, never felt comfortable with the legislative changes this past year permitting optometrists to perform some vision eye surgeries that heretofore had been performed solely by medical doctors with specialties in the "eye". 

I am not alone as opthamolgists and medical doctors (Kentucky Medical Association) opposed the statutory changes this past year.

As a consumer, I am conerned.  My eyes should not be at the beck and call of a price war for the cheapest bidder. 

Since I have had the "flap and zap" procedure at the hands of Dr. Maurice  E. John (who incidentally not only did a fine job but alleviated all of my concerns with calm professionalism), I feel qualified to at least talk about the reluctance in having an optometrist vs. an opthamologist work on my vision.  I would like to think there is more art, science, and training in the practice of selecting a viable candidate than just assuming I am a car and plugging me up to the tune up machine.

Well, it looks like the legislation and the law are going to be subject to some closer visual scrutiny now.

Here is a post at the open government blog:

Foes of law letting optometrists use lasers may sue, alleging violation of Open Meetings Act.

Although ophthalmologists and the Kentucky Medical Association strongly objected, a legislative committee appoved regulations Tuesday that will allow optometrists to perform some eye surgeries using lasers.

In answer, opponents say "they might file legal action against theKentucky Board of Optometric Examiners, which drafted the regulations, for failing to comply with the state's Open Meetings Act," reports Beth Musgrave of the Lexington Herald-Leader.

The regulations, passed under Senate Bill 110 of this year's General Assembly, now go to another legislative panel. If they pass, optometrists may be allowed to perform the surgeries by year's end. The bill has been cause for controversy, in large part because it passed through the legislature in a swift 12 days. Oklahoma is the only other state that gives similar operating privileges to optometrists.

Ophtalmologists said Tuesday the optometric board "used a task force appointed by the state optometric association, a trade group, to develop the regulations, and those meetings were held in secret with no public input," Musgrave reports. Legislators and optometrists disagreed, saying public comment was allowed at an open meeting in July, and the regulations were altered after task force members took the comments into consideration. (Read more)

"Lien on me" sounds like the new tune coming from the Supremes

Well, no comments received on my earlier post entitled -

Supremes reprimand attorney for failing to notify chiropractor of personal injury settlement recovery when on notice of a document denominated ""Assignment of Proceeds, Lien, and Authorization"

Therefore, I will post my initial comments and concerns regarding this decision which may well open up Pandora's Box of problems in Kentucky for the legal system, lawyers, and injured claimants.  There was  an old equity maxim of  "Justice delayed is justice denied."

Kentucky Supreme Court has published an opinion addressing an issue of much concern to trial lawyers and medical care providers.  I have my own thoughts on this decision, but I sincerely would appreciate comments (anonymous of course) on the thoughts of those who have read this decision.    To highlight  the seriousness of this decision and its potential adverse effects  under the doctrine of “unintended consequences”, I've raise some issues below to start the discussion and debate.

Basically, an ethical violation was raised by a chiropractor against an attorney who settled a personal injury case after he had ACTUAL notice of a chiropractic lien (assignment?) against the recovery  but did not pay off the lien or escrow the funds until the lien was resolved.  The chiropractor placed the attorney on notice of the assignment against the recovery to cover his treatment charges and the attorney admitted he had received the notice.  However, the attorney admitted that he subsequently failed to notify the client or 3rd parties with an interest of the receipt of some funds and to properly render an accounting to the client or 3rd party with an interest.

Here is an extract of this opinion that the Supreme Court deemed important enough to publish but redact the attorney's name. 

In reading this opinion, I would appreciate any comments, legal authority, addressing the following:

• Is any assignment against the  personal injury recovery legally valid?
  Why do I ask? 
  
  • Liens are typically a creature of statute, and unlike medical liens in Indiana, there is no statutory provision creating a medical lien.
  • Is it an assignment, and if so is it valid (in light of the fact that the Kentucky General Assembly removed the assignment of medical benefits provision in the Kentucky Motor Vehicle Reparations Act), not to mention that these putative assignments usually have no sum certain, are signed early during the treatment (if not the first visit and not properly explained or even understood by the patient) with the amounts being added later?
  •  what notice is required to perfect this putative lien or assignment?   For example,  certified mail, restricted mail, return receipt requested, written acknowledgment, etc.
  • Is notice by fax to the attorney adequate in light of the strict notice provisions of other liens?  Does the fax even constitute notice in light of the "mail box" rule?
  • Is the "lien/assignment" valid by simply  sandwiching this document in medical records?
  • Is the denomination by the provider that he or she is entitled to a recovery sufficient in itself to hold the proceeds hostage pending settlement of the claim?
  • Is the attorney for the patient conflicted and prohibited from filing a legal action to protect his client from the health care provider's claims against the proceeds?
  • Does anyone think the ethical rule for safekeeping property constitute rendering the attorney nothing more than a bill collector subject to the whims of other's claims?
  • Is  the lien/assignment  against a personal injury recovery even  legally permissible and/or  does it violate the Consumer Protection Act?
  • If the "lien/assignment" contains language of irrevocability does it render  the “lean/assignment” null and void?  Can  the patient revoke it? Can the attorne revoke it?  Can it be revoked at all?  Can the attorney on behalf of the client revoke it in futuro and/or legally challenge the services provided up to that point?  Can the challenge begin immediately or must one wait until the case is settled>
• Does an attorney who advises a business client (medical provider) of the ethical rules commit an ethical violation when he or she knows or has reason to know the medical provider will use the claimed threat of an ethical violation as leverage in a threatened legal proceeding?
• What if the attorney had denied actual notice of the claimed link or assignment and the matter was then challenged in court by the provider?   What effect do the rules of professional responsibility regarding privilege and confidentiality now play in the matter?
• Will this rule be extended to include health insurers  who have expanded the rights of subrogation rights to reimbursement against the insured claimant?

As for this development, I am reminded of Lieutnenat Kaffee (played by Tom Cruise in a Few Good Men) who said "And the hits just keep on coming." 

But as for the future, I refer you to Margo Channing (played by Bette Davis in "All About Eve") who said "Fasten your seatbelts, it's going to be a bumpy night!"

It just seems the efforts by the Supreme Court to create a lien where the law on liens in Kentucky in this area is not well-documented, hold the attorney accountable without explaining the notice required, and delineating ethically what can be done by the attorney in response to the so-called lien has the net effect of reducing the legal profession to that of a debt collector and a potential functionary to those who could potentially abuse the process. 

SCOKY by assuming the putative lien's legal validity (or at least ignoring the possiblity of the invalidity of the underlying document) has our own Supreme Court ventured down the lane of rendering an advisory opinion prematurely rather than waiting for an actual case or controversey?

Questions, questions, questions.

AN UNNAMED ATTORNEY V. KENTUCKY BAR ASSOCIATION
2011-SC-000333-KB
TO BE PUBLISHED
ORDER PRIVATELY REPRIMANDED MOVANT WITH CONDITIONS.
ALL SITTING. ALL CONCUR.

Here  is an extract of the decision. You click on here to obtain a copy of the actual decision posted at the Supreme Court's website.

Movant was charged by the Inquiry Commission with a violation of former SCR 3.130-1.15(b) 2which required a lawyer to notify the client or third parties with an interest of the receipt of settlement funds and to promptly render an accounting to the client or third party with an interest.

The facts which give rise to the charge stem from the Movant's representation of a client in a personal injury matter resulting from an automobile accident. The Movant received a document entitled "Assignment of Proceeds, Lien, and Authorization" from a chiropractor who treated the client. Upon subsequent settlement of the case for $4,000.00, Movant deducted his fee and distributed the remaining $2,600.00 to his client without notifying the chiropractor of the settlement or distribution.

Movant admits he violated the above rule by not notifying the chiropractor of the settlement, and in not escrowing the balance of the settlement (after deducting his fee) for distribution to the client and the chiropractor, according to their interests. In negotiating a penalty, the Respondent was agreeable to a private reprimand if the Movant agreed to a publication by the Court and the KBA of the Order of Private Reprimand, redacting the Movant's name and any fact-specific identifying information in a published opinion. The KBA's purpose in publication of a redacted private reprimand is to educate members of the public and the bar concerning this type of conduct and the ramifications therefrom. The Respondent also requested the Movant attend the Ethics and Professionalism Enhancement Program offered by the Office of Bar Counsel, and not receive any CLE credits for this program. Movant is agreeable to the conditions. This Court does not publish private reprimands but does enter confidential orders. The KBA places a copy in the KBA member's file with all pertinent information, which remains in the file for future reference, such as in subsequent disciplinary actions. However, the Court is agreeable to publishing a redacted copy of the private reprimand, and the Court is of the opinion that a private reprimand with conditions is sufficient in this case. Therefore:

IT IS HEREBY ORDERED that the Movant, An Unnamed Attorney, is adjudicated guilty of one count of violating former SCR 3.130-1.15(b), and that he be issued a Private Reprimand with these conditions:

1. Movant shall attend the next Ethics and Professionalism Enhancement Program offered by the Office of Bar Counsel, separate and apart from his fulfillment of any other continuing legal education requirements;

2 Movant will not apply for any CLE credit for attending said program, and shall furnish a release and waiver to the Office of Bar Counsel to review his records with the Continuing Legal Education Commission, such release to continue in effect until one year after he completes said program, in order to allow the OBC to verify that Movant has not reported said program for any type of CLE credit;

3. Movant agrees to publication by this Court and the Kentucky Bar Association of this Private Reprimand With Conditions, redacting the Movant's name and any fact-identifying information of Movant; and

4. Movant shall pay the costs of these proceedings, as certified by the Disciplinary Clerk, for which execution may issue upon finality of this Order.
All sitting. All concur.

ENTERED: August 25, 2011.

The wild wild web and juror misconduct and conduct can come crashing down around litigants heads and hopes for a fair trial

Whether or not Kentucky passes a law regulating internet research and communications by jurors is a MUST DO admonition in all jury trials in Kentucky.  It is not.  A juror can research the following:

• Lawyers and their firms and their blogs and their backgrounds and their verdicts and anything else they want to post, publish, or polemicize.
• Law - statutes, case law, ethics opinions, articles, and law firm commentary and blog posts.
• Social networking sites - all of them!!!
• News stories on the accident, the lawyers, or whatever the juror deems relevant.
• Tort reform, deform, verdicts.

The list is endless from weather on the day of the accident to whether or not the lawyer has written anything, been arrested, been seen in the plush homes of Louisville or even society events.  Campaign contributions and political affiliations.

Everything but listen to the case and observe the instructions.

And this is just from the juror's side of the house, and to think, some judges are bent out of shape on juror attire!  For crying out loud, sweats and gym clothes are worn to church, to the opera, and to eating establishments. 

If trial participants are entitled to a cross-section of the community, then some will wear whatever they feel comfortable in.  We don't pay them for their fashion sense but their common sense. 

Imagine the hue and cry should a juror be challenged or removed for the cut of their jib and swash of their buckle as opposed to their ability to be fair, impartial and follow the iaw.

However, one cannot argue with the fact that unlimited internet access is a recipe for trouble.

Of course, the assumption is that the juror will venture into the fast lane of the internet highway, but let us not forget that blogging and web site commentary is also susceptible to abuse by lawyers and litigants alike in an effort to passively put forth their message to jurors and judges alike.

In Kentucky, we had the case where the pending custody dispute prompted a biological father to post and post and post nonstop about his case.  And it is unknown if his lawyer or the court tried to ring him in.

Well, nuff said.  Here is a WSJ post worth reading.  Forewarned is forearmed folks.

California Jurors Tempted By Technology Could Face Jail Time

In a world where countless tweets, status updates, mobile uploads, emails and comments flood the Internet every nanosecond, there are still places where all of it is unacceptable – namely, the courtroom.

Sparked by growing concern over jurors’ use of cell phones during trials, California lawmakers passed a bill last week requiring trial judges to explicitly inform jury members that bans on outside research apply to wireless and electronic communication, the San Francisco Chronicle reports.

The law will make violations of the revised statute punishable by up to six months of jail time for criminal contempt, the ABA Journal states.

In one recent case, a jury foreman posted photos of the lethal weapon – a 15-inch saw-toothed knife – on his blog and wrote up comments about the defense lawyer as “whacked out” and having a “Columbo detective-style of acting stupid,” according to California Lawyer magazine.

The jury convicted the defendant of first-degree murder, and the judge denied the defense’s request for a new trial even given the juror’s off-kilter behavior.

Gov. Arnold Schwarzenegger vetoed a similar bill last year on the grounds that existing judicial warnings were sufficient, according to the Chronicle. The new law will go into effect next year.